Journal of Law and Public Policy Blog

Religious Expression and Public Schools after Kennedy v. Bremerton

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” [1] Together with the Free Exercise Clause, which prohibits laws “prohibiting the free exercises” of religion, the Religion Clauses reflect a constitutional commitment to both religious liberty and governmental neutrality.[2] The Supreme Court (the “Court”) has long stated that the Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.”[3]

For decades, the Court consistently invalidated school practices that integrated prayer into official school activities or conveyed the appearance of state endorsement of religion.[4] But in Kennedy v. Bremerton School District, the Court rejected decades of Establishment Clause doctrine and replaced the familiar endorsement test with what it described as a “historical practices and understandings” approach.[5] The Court centered its inquiry on coercion and concluded that because there was no evidence that students were required to pray or that participation was compelled, no constitutional violation occurred. [6]

The decision sparked divided reactions. Some viewed it as a victory for religious liberty and free speech.[7] Others criticized it as destabilizing church-state separation in public schools.[8] At the very least, the decision leaves school administrators wondering what they are supposed to do.

The Facts of Kennedy

Understanding the policy consequences of Kennedy requires understanding the facts. Joseph Kennedy was a high school football coach in Bremerton, Washington.[9] For years, he engaged in brief, silent prayers at the 50-yard line immediately following games.[10] Over time, some players began joining him.[11] The practice occasionally included motivational religious messages and attracted media attention.[12]

The school district grew concerned that the prayers, occurring on the field immediately after the games and in view of students and spectators, could be perceived as school endorsement of religion.[13] Administrators directed Kennedy to refrain from engaging in demonstrative religious activity while on duty.[14] Kennedy refused.[15] He continued to pray at midfield after games and was ultimately placed on administrative leave and not rehired.[16]

Kennedy sued, alleging violations of his rights under the Free Exercise Clause and the Free Speech Clause.[17] The Supreme Court sided with Kennedy. The majority characterized his prayers as “brief, quiet, personal religious observance” that occurred while he was not actively coaching players.[18] The Court rejected the school district’s Establishment Clause concerns and held that the Constitution did not require the district to suppress Kennedy’s private religious expression.

The majority also used the case to formally abandon the Lemon v. Kurtzman framework and the endorsement test that had shaped Establishment Clause analysis for decades.[19] Instead, the Court instructed lower courts to interpret the Establishment Clause by reference to historical practices and understandings, with coercion as the central constitutional concern.[20]

The Special Constitutional Context of Public Schools

Historically, public schools have occupied a distinct position in Establishment Clause jurisprudence. Students are legally required to attend, coaches and teachers exercise evaluative and supervisory authority, and adolescents are uniquely susceptible to peer pressure and social conformity.[21] These structural realities have shaped the Court’s approach to school prayer cases.

For decades, the Court applied the three-pronged test from Lemon v. Kurtzman, which asked whether government action had a secular purpose, whether its principal effect advanced or inhibited religion, and whether it fostered excessive entanglement with religion.[22]

In Lee v. Weisman, the Court invalidated clergy-led prayer at a high school graduation, emphasizing that coercion in schools may be “subtle and indirect,” yet constitutionally significant. [23] Even when attendance at graduation was technically voluntary, the Court recognized that social pressure could amount to unconstitutional coercion.[24]

Similarly, in Santa Fe Independent School District v. Doe, the Court struck down student-led prayer before football games.[25] The Court reasoned that the school’s involvement in organizing and supervising the prayer created impermissible pressure on students to participate.[26] The key concern in both cases was the combination of school authority and social expectation.

These precedents reflected a recognition that coercion in public schools often operates through its structure.

The Shift in Kennedy

Kennedy altered this framework. The Court rejected reliance on the endorsement test and emphasized that historical practice and coercion now guide Establishment Clause analysis. The majority concluded that because students were not required to pray and because there was no clear evidence that playing time or team status depended on participation, no unconstitutional coercion occurred.[27]

The Court’s analysis focused heavily on the absence of documented complaints or explicit directives. [28] In doing so, it adopted a relatively narrow conception of coercion that is tied to overt compulsion rather than contextual pressure.

But in athletics, authority and visibility are harder to separate. Coaches influence playing time, leadership roles, and recommendations. Team cohesion and peer conformity may amplify that influence.[29] By concentrating on documented instances of explicit coercion, the Court arguably minimized the structural dynamics that have historically animated school prayer cases.

Public Policy Consequences

The doctrinal shift from endorsement to coercion carries significant public policy implications.

First, it raises evidentiary burdens. Students alleging religious pressure must now demonstrate something closer to explicit compulsion rather than contextual influence. Yet adolescents may be reluctant to complain about authority figures who control their opportunities. The absence of formal complaints does not necessarily indicate the absence of pressure.

Second, the decision creates uncertainty for administrators. School districts must balance employee Free Exercise and Free Speech rights with their constitutional obligation to avoid establishing religion. By rejecting the Lemon test and narrowing the coercion inquiry without providing a clear alternative framework, Kennedy leaves administrators without a predictable method for evaluating religious expression that falls short of overt compulsion but nonetheless implicates student vulnerability.

Third, the decision risks normalizing religious expression in highly visible school contexts. Public schools serve diverse populations, including students of minority faiths and students with no religious affiliation. When religious practice occurs in settings closely tied to school authority, it potentially may signal alignment with a particular faith tradition.

Conclusion

Kennedy v. Bremerton represents a significant change of Establishment Clause doctrine. By rejecting the endorsement test and centering coercion, the Court reshaped how religious expression in public schools will be evaluated going forward. However, replacing one framework with another did not eliminate the underlying constitutional tension.

If coercion is the governing standard, courts must recognize that coercion in public schools is often subtle, unreported, and embedded in hierarchy. Focusing only on documented instances of overt pressure risks overlooking the structural realities of adolescent life and institutional authority.

Religious liberty is strongest when participation is genuinely voluntary. Students should be free to join or abstain without fear of social or institutional consequence. The challenge after Kennedy is ensuring that the coercion framework remains sensitive to those structural realities.

[1] U.S. Const. amend. I.

[2] U.S. Const. amend I.

[3] McCreary Cty. V. Am. Civ. Liberties Union of Ky., 545 U.S. 844, 860 (2005).

[4] See Santa Fe Indep. Sch. Dist. V. Doe, 530 U.S. 290, 290 (2000). (invalidating prayer prior to football games); Schempp, 374 U.S. 203 (invalidating a statute requiring the recitation of Bible verses and Lord’s Prayer before class); Engel v. Vitale, 370 U.S. 421, 422 (1962) (invalidating a state-composed prayer for recitation in public school classrooms).

[5] Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 537 (2022).

[6] Id. at 543.

[7] Aislinn Comiskey, Kennedy v. Bremerton School District: A Touchdown and a Victory for Establishment Clause Jurisprudence, 31 Jeffrey S. Moorad Sports L.J. 67 (2024).

[8] See JOSEPH A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT, Respondent., 2022 WL 1032638.

[9] Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 815 (9^th Cir. 2017).

[10] Id. at 816.

[11] Id.

[12] Kennedy, 597 U.S. at 529.

[13] Kennedy v. Bremerton Sch. Dist., at 816.

[14] Id.

[15] Id.

[16] Id. at 819.

[17] Id. at 819.

[18] Kennedy, 597 U.S. at 520.

[19] Id. at 510.

[20] Id. at 511.

[21] Id. at 530.

[22] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[23] Lee, 505 U.S. at 593.

[24] Id. at 595.

[25] Santa Fe, 530 U.S. at 317.

[26] Id. at 311.

[27] Kennedy, 597 U.S. at 537.

[28] Id.

[29] JOSEPH A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT, Respondent., 2022 WL 1032788, at *5.

April 6, 2026 by Mollie Ryan

Uncategorized

Status of Federal Regulation and Legislation of Cryptocurrency

Cryptocurrency offers an alternative to traditional fiat currency and hard commodities like gold. The cryptocurrency market cap at the time of writing of this article is over $2.4 trillion dollars.[1] There are hundreds of different cryptocurrencies, from well-known ones like Bitcoin (which accounts for more than half of all cryptocurrency value) to little known ones like ViciCoin or Chia (which account for a fraction of a percent of all cryptocurrency value).[2] In 2024, approximately 7% of adults in the United States bought cryptocurrency or held it as an investment.[3] Only approximately 2% used it to buy something.[4] While there is not currently one overarching set of federal regulations for cryptocurrency, there are various federal and state laws that govern the use of cryptocurrency. This article will discuss the status of the current cryptocurrency regulations that exist at the federal level, what’s on the horizon for federal cryptocurrency legislation, and how these laws affect cryptocurrency use and markets.

Current Federal Cryptocurrency Regulation

The Securities and Exchange Commission (SEC) regulates cryptocurrency under existing securities law. Cryptocurrency businesses must comply with federal money transmission laws under the Bank Secrecy Act (Title 31 of the United States Code).

Other federal agencies that regulate parts of cryptocurrency are the Commodity Futures Trading Commission (CFTC) which oversees digital assets as commodities, the Financial Crimes Enforcement Network (FinCEN) which requires anti-money laundering compliance for virtual currency businesses, and the Internal Revenue Service (IRS) which has established comprehensive tax reporting requirements effective 2025.

In July of 2025, Congress enacted the Guiding and Establishing National Innovation for U.S. Stablecoins (GENIUS) Act, establishing a federal framework for payment stablecoins.[5] Stablecoins are pegged to a stable asset, usually the United States dollar, and are backed by reserves. Examples are Tether or USD Coin. In general, the GENIUS Act framework provides supervisory and enforcement authority over stablecoins.

Notably, stablecoins are not the common, well-known cryptocurrencies like Bitcoin. This is because permitted payment stablecoins are not treated as securities under federal securities laws. In other words, the largest piece of current federal legislation related to cryptocurrency doesn’t cover the vast majority of standard transactional cryptocurrency. Future cryptocurrency legislation aims to fill existing gaps at the federal level.

Potential Future Federal Cryptocurrency Legislation

The Digital Asset Market Clarity Act (or the CLARITY Act) passed the House of Representatives in July 2025, establishing frameworks for regulatory jurisdiction between the SEC and CFTC. It was received in the Senate in September 2025 and as of February 2026 continues to be discussed at Senate Banking Committee meetings.[6]

The bill proposes to establish “the United States as the crypto capital of the world.”[7] It seeks investor protections and tools for law enforcement, as well as protect Americans and keep fueling financial innovation in America.[8] The act aims to protect Americans by delivering transparency, oversight, and accountability. It gives a clear legal outline for the crypto industry and who regulates what between the SEC and CFTC. It would enable innovation while ensuring compliance. Finally, it boasts appropriate sanction framework and gives new tools to law enforcement to deal with illicit finance activity.

This proposed legislation as currently written was not favored by the industry. Cryptocurrency companies argue that the legislation continues to favor traditional banking and finance institutions.[9] The largest point of contention is the restrictions on stablecoin rewards—should stablecoins be able to pay interest-like rewards. Banks argue that if this were allowed, it would decrease the amount of deposits held in the traditional banking system. This of course is exactly what the cryptocurrency industry wants. In fact, it’s one of the goals of cryptocurrency, to move away from traditional banking.

How would this work? If a user held stablecoin and was able to receive interest from that holding, the argument is that the holding would look more like a savings account or money market fund. Banks depend on deposits to function and to make a profit. Deposits also increase the ability to lend and lack of deposits could potentially stress the banking industry. Because, as traditional banks argue, the stablecoins would function as savings accounts or similar to them, they should have to be subject to the same regulation that banks face.

The counterargument from the cryptocurrency industry is that banning these interest rewards really only favors the banks, not the consumer. Plus, if the United States bans stablecoin rewards, users will just move to offshore platforms that offer them anyway. This would decrease the amount of regulatory control that the government has over funds and would overall counter thegoals of benefitting and protecting Americans.

Effect of Federal Cryptocurrency Regulation and Legislation on Use and Markets

As it stands, the GENIUS Act is what exists at the federal level regulating cryptocurrency, but again, it regulates specifically stablecoins. Stablecoins act as regulated digital dollars, a way to store value in an asset that is tied directly to treasury bills or the United States dollar. It defines who can issue stablecoins and in general makes them safer but less flexible and innovative than a cryptocurrency should aim to be.

The CLARITY Act would have the effect of regulating the entire cryptocurrency ecosystem. It would have three main effects. First, it would define when a token is a security or a commodity. A security is an investment contract (like stocks, bonds) regulated by the SEC. According to the Supreme Court’s “Howey Test” a transaction is a security if it is (1) an investment of money; (2) in a common enterprise; (3) with an expectation of profit; and (4) based on the efforts of others.[10] A commodity is something like gold, oil, or wheat, and is regulated by the CFTC. Depending on the classification, different regulations would apply for registration, disclosures, and oversight obligations. In general, securities are much more heavily regulated. Second, it would create a registration path for crypto exchanges, such as Coinbase, giving them added legitimacy as a registered entity recognized by the federal government. Third, it would impact decentralized finance efforts by making overall innovation slower because of red tape hurdles.

Largely, cryptocurrency use remains largely untouched at the basic user level. Cryptocurrency providers and exchanges are the ones that are regulated, and user consumers are left to operate as they do in other contexts. When legislation favors or disfavors something in any context, a related stock or market increases or decreases. The same is true of cryptocurrency. The market remains volatile and if the CLARITY Act passes, the markets will adjust according to whatever the legislation ends up including.

Cryptocurrency is, in part, about rebelling against who controls a store of value, who controls currency. It’s about providing a decentralized financial system that can be independently verified. Future federal cryptocurrency regulation will directly effect cryptocurrency and if this industry stays alive.

Conclusion

Cryptocurrency is hefty: a $2.4 trillion dollar market can’t be pushed aside. Current federal regulation, the GENIUS Act, focuses on regulating stablecoins. That is an indicator that legislation regulating the entire cryptocurrency ecosystem will eventually be passed. Future federal legislation, the CLARITY Act, aims to do that. The contents of that law will have effects that determine the ultimate future of cryptocurrency.

[1] Cryptocurrency Prices Today By Market Cap, Forbes, https://www.forbes.com/digital-assets/crypto-prices/?page=1.

[2] Id.

[3] Federal Reserve, Economic Well-Being of U.S. Households in 2024, Federal Reserve Research & Analysis (May 2025), https://www.federalreserve.gov/publications/files/2024-report-economic-well-being-us-households-202505.pdf.

[4] Id.

[5] Public Law 119–27 PL 119–27 [S 1582] July 18, 2025 GUIDING AND ESTABLISHING NATIONAL INNOVATION FOR U.S. STABLECOINS ACT

[6] 119th CONGRESS, 1st Session United States Library of Congress HR 3633 Reported in House.

[7] The Facts: The CLARITY Act, United States Senate Committee on Banking, Housing, and Urban Affairs (Jan. 13, 2026), https://www.banking.senate.gov/newsroom/majority/the-facts-the-clarity-act.

[8] Id.

[9] Micah Zimmerman, Senate Banking Committee Postpones CLARITY Act Markup After Crypto Industry Backlash, Bitcoin Magazine (Jan. 15, 2026), https://bitcoinmagazine.com/news/senate-banking-committee-clarity-act.

[10] SEC v. W.J. Howey Co., 328 U.S. 293 (1946).

March 26, 2026 by Evan Esslinger

Uncategorized

Executive Order Suspending FCPA Enforcement: An Unconstitutional Overreach

Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977.[1] The FCPA governed domestic business conduct with foreign government officials in foreign markets.[2] Generally, the FCPA prohibits bribes to foreign officials to obtain or retain business.[3] The statute applies to publicly traded companies and their agents.[4] To do so, the FCPA requires issuers to maintain accurate books and records to disclose potential payments to foreign officials.[5] In 2024 alone, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) obtained over $1.28 billion in total fines and penalties relating to the FCPA.[6]

On February 10, 2025, President Donald Trump issued an executive order suspending enforcement of the FCPA for 180 days.[7] The Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, exceeds presidential authority. While the executive branch enjoys broad discretion in how it enforces federal law, the wholesale suspension of enforcement of the FCPA for 180 days exceeds the President’s Article II authority. The Constitution’s Take Care Clause says the president “shall take Care that the Laws be faithfully executed.”[8] By ordering the Department of Justice to halt all new FCPA cases and reorient ongoing ones, the president has effectively nullified a statute enacted by Congress, and therefore, has exceeded his presidential authority.

Youngstown Sheet provides that when the president acts contrary to Congress’s expressed will, his power is “at its lowest ebb.”[9] Here, Congress explicitly enacted the FCPA to combat foreign bribery by American companies.[10] Legislative power rests with Congress, not the president. As the Constitution states, “All legislative Powers herein granted shall be vested in a Congress.”[11] The statute establishes no presidential authority to suspend enforcement.[12] By pausing all new investigations absent of approval from the Attorney General, the executive order directly contravenes Congress’s design and therefore falls squarely into Youngstown’s category three.[13] In other words, President Trump’s executive order contradicts the express and implied will of Congress.

The executive order cannot simply cite prosecutorial discretion, foreign affairs powers, and national security to mask its unconstitutionality. Prosecutorial discretion cannot be read so broadly as to permit the categorical nullification of an entire class of statutory enforcement. Nor can foreign affairs powers displace clear congressional legislation. The executive order ensures that the FCPA is not enforced in a manner that “harms American economic competitiveness and, therefore, national security.”[14] The president cannot broadly, without foundation, invoke national security as an excuse to not “Care that the Laws be faithfully executed.”[15] Congress had already spoken on the issue when Congress passed the FCPA in 1977.[16] The President may not contradict Congress by invoking vague “national security” rationales. This is not permitted under Youngstown’s category three.[17] If “national security” were enough, any president could decline to enforce laws passed by Congress that he or she disagrees with simply by asserting that strict enforcement undermines security.

The Deputy Attorney General issued new enforcement guidelines in its June 2025 memorandum, concluding the 180-day suspension.[18] The memorandum redirected prosecutors to focus on cartel-linked corruption, strategic infrastructure, and “serious misconduct” while avoiding “routine business practices.”[19] These guidelines fundamentally reshape how the FCPA will be enforced. They even require that all new investigations be approved by the Assistant Attorney General or higher.[20] This narrowed the statute to fit the President’s policy views. This is not faithfully executing the law. It is presidential rewriting of the law.

The Department of Justice admittedly has broad discretion in its enforcement based on its limited resources. The government cannot prosecute every violation of the FCPA. Prosecutorial discretion is arguably murky. At a minimum, an executive order categorically suspending a congressionally passed statute from any enforcement for 180-days is unconstitutional. The harder question is whether the new enforcement guidelines simply constitute prosecutorial discretion based on the Department of Justice’s limited resources. The correct analysis is whether the new guidelines set out by the Justice Department’s enforcement of the FCPA are fundamentally different from the FCPA’s text and original intent passed by Congress. If these two things are so fundamentally different, then this is no longer prosecutorial discretion, but executive rewriting of the law that infringes Congress’s legislative authority. In other words, if the DOJ changes the enforcement of FCPA so fundamentally, then prosecutorial discretion is no longer part of the equation. It is no longer discretionary if a law is, in effect, rewritten. The new FCPA enforcement guidelines focus on cartel activity, which is fundamentally different than the FCPA’s original purpose, to have a statutory scheme to deal with companies bribing foreign officials.[21]

Overall, the executive order exceeds presidential authority. In other words, the president is exercising legislative authority instead of executing the law. By halting enforcement of the FCPA, President Trump exceeded his Article II authority and violated the Take Care Clause. The DOJ memorandum implementing the order confirms this overreach by substituting presidential policy preferences for congressional command. Legislative power rests with Congress, not the president. Therefore, Executive Order 14209 is unconstitutional.

[1] Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1–78dd-3 (2024).

[2] Mike Koehler, The Story of the Foreign Corrupt Practices Act, 73 Ohio St. L. J. 929, 929 (2012).

[3] Foreign Corrupt Practices Act (FCPA), U.S. SEC (Sep. 13, 2023), https://www.sec.gov/enforcement/foreign-corrupt-practices-act [https://perma.cc/5DFR-QPG2].

[4] Id.

[5] Id.

[6] Cuneyt A. Akay, FCPA Year in Review 2024, GreenbergTraurig (Jan. 29, 2025), https://www.gtlaw.com/en/insights/2025/1/fcpa-year-in-review-2024 [https://perma.cc/3E5B-D6GG]; SEC Enforcement Actions: FCPA Cases, U.S. SEC (July 21, 2025), https://www.sec.gov/about/divisions-offices/division-enforcement/enforcement-topics-initiatives/sec-enforcement-actions-fcpa-cases [https://perma.cc/7EXP-CTCY].

[7] Exec. Order No. 14209, 90 Fed. Reg. 9587 (Feb. 10, 2025).

[8] U.S. Const. art. II, § 3.

[9] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

[10] See generally Koehler, supra note 2.

[11] U.S. Const. art. I, § 1.

[12] 15 U.S.C. §§ 78dd-1–78dd-3.

[13] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[14] Exec. Order No. 14209, 90 Fed. Reg. at § 1.

[15] U.S. Const. art. II, § 3.

[16] 15 U.S.C. §§ 78dd-1–78dd-3.

[17] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[18] Memorandum from Deputy Att‘y Gen. Todd Blanche to Head of Crim. Dep‘t (June 9, 2025), https://www.justice.gov/dag/media/1403031/dl?inline [https://perma.cc/ZF4F-JC5B].

[19] Id.

[20] Id.

[21] See generally Koehler, supra note 2.

February 12, 2026 by Klara Beinhorn

Uncategorized

An Overlooked Crisis: Why Minnesota Must Reform Prison Dental Care

Dental care is a fundamental component of overall health, yet it remains one of the most overlooked areas in healthcare systems worldwide.[1] Within the Minnesota prison system, dental care can only be accurately described as a public health crisis.[2] While medical and mental healthcare receive some degree of attention in public policy discussions regarding inmate care, oral health is often dismissed as a secondary concern.[3] This reality exists despite overwhelming evidence that poor dental care is directly linked to serious health complications, including cardiovascular disease, diabetes, pneumonia, and other systemic conditions.[4] The mouth is not separate from the body; it is a crucial entry point that can indicate, and sometimes magnify, underlying medical issues.

The importance of dental care compared to its access among the general public is even more prominent in correctional facilities, where incarcerated individuals often enter with preexisting dental conditions due to a history of inadequate oral care. Studies have shown that the oral health of incoming inmates tends to follow the trends of people in lower socioeconomic groups of the general population, which, in a word, is bad.^[5] These disparities correspond directly to the lack of preventative services, such as routine dental exams, which begin at adolescence, Between 2016 to 2021, there has been a 10% decrease in the percentage of low-income children and adolescents (ages 1-17) who had a past-year dental visit for preventative oral care.^[6] This number has continued to decline steadily since, and signals a multitude of problems that may arise from this statistic alone.^[7]

This trend is particularly concerning given the well-established “poverty-to-prison pipeline.” It is no secret that mass incarceration disproportionately affects marginalized communities. Approximately 80% of incarcerated individuals in the United States come from low-income communities, and 67% are minorities.^[8] The systemic barriers that prevent people of these backgrounds from accessing dental care outside of prison do not magically disappear once they are behind bars. In fact, these barriers are aggressively reinforced by policies that enable the deprivation of incarcerated individuals of even the most basic healthcare needs, and are wholly ignored by those who put these systems into place.

In the State of Minnesota, the Department of Corrections contracts out for general physical health, mental health, eye health, etcetera, but does not have a contract for dental care.^[9] This absence is not a mere oversight; it reflects a deeper, systemic failure to prioritize oral health as an essential component of medical care. Still, there are valid arguments as to how privatized healthcare contracts in prisons often lead to poor oversight and diminished quality of care^[10], but at the very least, other aspects of prison healthcare have a basic framework whereas dental care is left without even the semblance of a structured system.

The consequences of this neglect are grim. Incarcerated individuals often wait months or even years for dental treatment, enduring severe pain and the progression of preventable conditions. In many cases, the only solution offered is tooth extractions rather than restorative treatments such as fillings, crowns, or root canals.^[11] This reflects a broader pattern in prison healthcare: quick, cost-cutting measures take precedence over comprehensive, patient-centered care. The result is a cycle of suffering in which incarcerated individuals are forced to live with chronic pain and deteriorating health.

The overall failure to provide adequate dental care in Minnesota’s prisons constitutes a commonly overlooked infringement on the fulfillment of inmates’ basic human needs that is in desperate need of reform, however that may look. This is not to say that the state of Minnesota prison dental care is a blatant Constitutional violation, nor is it to say that simple policy reform is going to get the job done. No, the point is that despite Eighth Amendment protections and empty promises of policy redress, what is happening in Minnesota prisons is wrong and that truth needs to be faced truth head-on. Once that is done, we can finally start to take true steps on the path towards solving this atrocity by treating human beings as such.

Among the many obstacles preventing incarcerated individuals from receiving proper healthcare, financial barriers stand out as particularly egregious. In Minnesota prisons, incarcerated individuals are required to pay a $5 copay for each medical visit, including requests to see a nurse or doctor.^[12] While this amount may seem small outside prison, it poses a significant burden for those earning as little as $0.25 per hour^[13]. This system discourages many from seeking medical care, forcing them to endure illnesses or injuries rather than depleting their already limited financial resources. Some exceptions exist, such as for chronic care visits or emergencies, but for many incarcerated individuals, the copay system creates a major barrier to accessing necessary healthcare and only reinforces the class system endured by free citizens.

A powerful research report put forth in 2018 by the Voices for Racial Justice gathered an abundance of data on healthcare in Minnesota prisons, which includes barriers to adequate health, health impacts of incarceration, and an overall reflection of voices in the community.^[14] This report explained how the DOC uses the system of copayments, where “[o]ne sick charge of $5.00 can cost a person who is incarcerated 20 hours of work if they are being paid 0.25 per hour.”^[15] An anonymous inmate participating in the research report also brought forward the point that when an incarcerated individual has a health complication, it often requires being seen more than once:

How are you gonna afford a five, or 10, or $15 copay. That’s ridiculous. Especially, what if your thing is not resolved, and you need to keep going back and keep paying those copays, so it’s absolutely not affordable.^[16]

This financial strain leads many incarcerated individuals to forgo medical and dental visits entirely, allowing minor health concerns to escalate into severe, untreated conditions.^[17]

Despite repeated calls for reform, Minnesota’s Office of the Legislative Auditor (“OLA”), the entity responsible for reporting audits, evaluations, and investigations of state programs to the Minnesota Legislature, has done little to address these concerns. The OLA’s most recent comprehensive report on Minnesota prison healthcare is over ten years old, from 2014^[18], and rather than calling for systemic change, the OLA merely updated its report to state that the DOC should ensure that “copayment policies are well understood by facility staff and consistently applied.”^[19] This unclear response completely ignored the concerns brought forward by the people who are being affected by the copay policy daily, the inmates.

While medical care in Minnesota prisons is already inadequate, the situation for dental care is even more alarming. The DOC’s only formal policy regarding dental care is limited to a single vague statement, “A Minnesota-licensed dentist provides and/or directs responsive, clinically appropriate emergency, urgent, and routine dental care to offenders and residents.”^[20] Unfortunately, Minnesota caselaw and first-hand accounts from inmates make it known that the DOC is turning its cheek to this statement, leading to delays and outright denials of treatment.^[21] Preventative services, such as routine cleanings and checkups, are scarce, and many inmates report being left to endure prolonged pain before receiving any form on intervention.^[22]

The DOC has a separate policy stating that a medical, dental, mental health, and sexual assault risk screening must occur within 24 hours of a person’s arrival at a correctional facility.^[23] And while it has been generally accepted that these initial screenings do timely occur, the issue is in the follow-up, where one formerly incarcerated person reported that the DOC “definitely need[s] to get rid of that two year wait for dental check-ups. That’s outrageous. Oral health impacts all of the other health, so you got cats running around with poor oral hygiene.”^[24] In practice, access to follow-up dental care in Minnesota’s prisons is an uphill battle. Incarcerated individuals must submit a formal request to see a dentist, a process that can take weeks or months before an appointment is granted.^[25] And even when a visit is approved, the range of available treatments is often restricted to the most basic procedures.^[26] Fillings, root canals, and other restorative treatments are often denied in favor of extractions, reinforcing a system where pain management is prioritized over long-term oral health.^[27]

Ultimately, improving prison dental care in Minnesota requires a creative approach that combines legislative action, advocacy efforts, and systemic reforms. The ongoing efforts of legal and public health organizations, combined with policy initiatives such as increased funding and community-based care, offer a path forward toward a more humane and effective system. By prioritizing oral health as an essential component of overall healthcare, Minnesota can take meaningful steps toward ensuring that incarcerated individuals receive the care they need, promoting both justice and public health.

[1] Priyanka Gudsoorkar, BDS, M.B.A., M.P.H & Sujay A. J. Mehta, D.M.D., MPH, Revitalizing the Oral Health Agenda: A Call for Integrated Health Policy and Practice, Academy Health (July 16, 2024), https://academyhealth.org/blog/2024-07/revitalizing-oral-health-agenda-call-integrated-health-policy-and-practice-0.

[2] See discussion supra Part II.

[3] See discussions supra Parts III.B, IV.A.

[4] See Robert H. Shmerling, MD, Gum disease and the connection to heart disease, Harvard Health Publishing (Oct. 8, 2024), https://www.health.harvard.edu/diseases-and-conditions/gum-disease-and-the-connection-to-heart-disease; see also Mayo Clinic Staff, Oral health: A window to your overall health, Mayo Clinic (Mar. 14, 2024), https://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/dental/art-20047475.

[5] Health Disparities in Oral Health, Center for Disease Control (May 15, 2024), https://www.cdc.gov/oral-health/health-equity/index.html.

[6] Id.

[7] Preventative Dental Visit – Children in United States, America’s Health Rankings (2022–2023), https://www.americashealthrankings.org/explore/measures/prev_dent_care_overall.

[8] Tihanne Mar-Shall, The Poverty to Prison Pipeline, L. J. for Soc. Just., Mar. 29, 2021, https://lawjournalforsocialjustice.com/2021/03/29/the-poverty-to-prison-pipeline/.

[9] See MN Department of Corrections, Fact Sheet: Medical and Nursing Services, www.MN.Gov (Dec., 2019), https://mn.gov/doc/assets/Medical%20and%20Nursing%20Services_tcm1089-309010.pdf.

[10] See Mar-Shall, supra note 8.

[11] Keith Crow, Why doesn’t Rush City prison have a dentist?, Spokesman Reporter (Apr. 17, 2024), https://spokesman-recorder.com/2024/04/17/prisoner-dental-care-mcf-rush-city/.

[12] Minn. Stat. § 243.212.

[13] Filiberto Nolasco Gomez, An Update on Prison Labor in Minnesota, Workday Magazine (Jan. 5, 2022), https://workdaymagazine.org/an-update-on-prison-labor-in-minnesota/.

[14] Voices for Racial Justice, Unfit for Human Consumption: Health and Healthcare in Minnesota Prisons, Minnesota Legislative Reference Library (May 2018), https://www.lrl.mn.gov/docs/2019/other/190451.pdf.

[15] Id. at 40.

[16] Id.

[17] Id.

[18]Office of the Legislative Auditor, supra note 12.

[19] Voices for Racial Justice, supra note 20, at 41.

[20] Minnesota Department of Corrections, Dental Services, § 500.055 (2018).

[21] Voices for Racial Justice, supra note 20, at 43.

[22] Voices for Racial Justice, supra note 20, at 43.

[23] Minnesota Department of Corrections, Incarcerated Person Intake Screening and Processing, § 202.040 (2024).

[24] Voices for Racial Justice, supra note 20, at 43.

[25] Voices for Racial Justice, supra note 20, at 43.

[26] See Keith Crow, supra note 11.

[27] See Keith Crow, supra note 11.

November 7, 2025 by Elayna Chambers

Uncategorized

THE DEATH PENALTY AND CATHOLIC SOCIAL TEACHING: A CONTEMPORARY ANALYSIS

The death penalty remains one of the most contested moral and legal issues in American society. Catholic Social Teaching (CST), rooted in the sanctity of human life, justice, and the common good, has evolved significantly on this Historically, the Church supported capital punishment as consistent with natural law and Scripture.[1] However, in 2018, Pope Francis declared the death penalty “inadmissible,” emphasizing every human’s inviolable dignity.[2] This development reflects legitimate doctrinal progression, not contradiction. Examining capital punishment through CST principles, including human dignity, restorative justice, the role of the state, and evolving papal teaching, demonstrates that abolition best serves justice and the common good.

The death penalty, which is the state-sanctioned execution for capital offenses, remains an evolving legal and moral debate given its irreversible nature.[3] The U.S. Supreme Court has long upheld capital punishment as constitutionally permissible, though subject to evolving standards of decency.[4] In Furman v. Georgia, 408 U.S. 238 (1972), the death penalty was temporarily halted due to its arbitrary and discriminatory application.[5] It was reinstated in Gregg v. Georgia, 428 U.S. 153 (1976), under stricter procedures.[6] Subsequent rulings barred execution for juveniles and individuals with intellectual disabilities.[7]Currently, there are 27 states in the United States that authorize capital punishment for crimes such as murder, treason, or assassinating federal officials.[8]

For centuries, the Catholic Church upheld the state’s right to impose the death penalty as an act of retributive justice, grounded in Scripture, tradition, and natural law. In recent decades, however, Church leaders have increasingly narrowed the legitimate application of the death penalty. The Church’s early stance, rooted in passages like Genesis 9:6 and Romans 13:4, accepted the state’s authority to punish with death.[9] Genesis teaches that “whoever sheds the blood of man, by man shall his blood be shed,” while Romans depicts the state as God’s[10] Though often cited to justify capital punishment, alternative interpretations suggest Genesis instead implies that God alone holds ultimate authority to judge, challenging the traditional interpretation[11]

Early Church figures held varying views on capital punishment. St. Clement of Alexandria justified execution for those deemed “incurable,” while St. Augustine acknowledged the state’s authority but urged mercy.[12] This tension set the stage for modern reform. Pope St. John Paul, who in Evangelium Vitae (1995) urged that executions be “rare, if not practically nonexistent,” given modern means to protect society.[13] Pope Benedict XVI advanced this focus on human dignity, supporting abolition efforts.[14] This development culminated under Pope Francis’s 2018 Catechism revision, which declared that the death penalty is “inadmissible” as an affront to human dignity.[15]

Central to CST is the principle that every human is created in God’s image with inherent dignity that cannot be forfeited, even through sin or crime.[16] Pope John Paul II affirmed that “not even a murderer loses his personal dignity,” a view echoed in the 2018 revised Catechism, which teaches that “the dignity of the person is not lost even after the commission of very serious crimes.”[17] Pope Francis reiterated in Fratelli Tutti that denying dignity to criminals denies it to everyone.[18] These teachings undermine moral justification for executions, which permanently eliminates the chance for redemption.

While the state has a duty to uphold the common good, modern penal systems can protect society without taking life. The Catechism continues to acknowledge that “preserving public order and the safety of persons” is a legitimate function of punishment.[19] While the state has a duty to protect the common good, this may no longer include the death penalty as a proportionate punishment.

A related CST principle, the preferential option for the poor, underscores how the death penalty disproportionately affects marginalized communities.[20] Avery Cardinal Dulles, an influential American Catholic theologian, identified several concerns regarding capital punishment, citing jury bias and inadequate legal defense for poor and uneducated defendants.[21] The U.S. bishops have also condemned capital punishment as both a life and racial justice issue, calling for its abolition in solidarity with the vulnerable[22]

The Catholic Church’s position on capital punishment has evolved, reflecting continuity in moral principles while responding to contemporary realities. Traditionally, however, the Church affirmed the state’s right to impose capital punishment as a means of retributive justice, consistent with classical natural law theory.[23] A clear contradiction in the Catechism gives rise to scholarly arguments that the church has not, and cannot, change its traditional teaching, as it explicitly references the fifth commandment, which forbids the intentional killing.[24]

Catholic scholars, Edward Feser and Joseph Bessette, maintain that Genesis 9:6 supports the state’s authority to impose death for grave crimes.[25] Recent magisterial developments, however, have shifted to prioritize the sanctity and dignity of every human life, calling for the abolition of the death penalty in modern society. Sister Renée Mirkes similarly argues that the Church’s essential teaching remains intact while its application is shaped by cultural and historical realities.[26] Pastors thus have a duty to exercise prudence, considering modern injustices such as racial bias, inadequate legal counsel, and wrongful convictions.

This development presents a challenge for Catholic legal professionals, as they are obliged not only by oath and professional commitment, but they are also to adhere to their church’s teaching on moral issues.[27] While the U.S. Constitution continues to permit the death penalty, many Catholic judges, including the late Justice Antonin Scalia, have struggled with reconciling personal belief and professional duty.[28] Scalia questioned how a Catholic judge might impose the death penalty despite moral opposition: “How, as a Catholic judge, can he participate in the process of imposing the death penalty when the Church says it’s immoral to do so?”[29] The Church ultimately urges the faithful not merely to tolerate current legal frameworks but to actively work for change.

The Church’s rejection of capital punishment is not a break from tradition but a fulfillment of it. Grounded in human dignity, CST recognizes that justice and mercy cannot coexist with killing as punishment. The Church’s evolution mirrors society’s moral progress toward safeguarding life and promoting rehabilitation. For Catholic legal professionals and citizens alike, the moral imperative is clear: uphold the sanctity of life, advocate for justice that heals, and build a society where redemption remains possible for all.

[1] University of St. Thomas – Minnesota, Catholic Social Teaching – Toward Justice and Healing (Blog), https://blogs.stthomas.edu/toward-justice-and-healing/category/catholic-social-teaching/, (last visited Oct. 23, 2025).

[2] Catechism of the Catholic Church ¶ 2266-2267, VATICAN (1993),

https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_

5/i_respect_for_human_life.html.

[3] Death Penalty, Legal Info. Inst., https://www.law.cornell.edu/wex/death_penalty (last visited Apr. 12, 2025).

[4] Id.

[5] Id.

[6] Id.

[7] Legal Info. Inst., supra note 1, (citing Roper v. Simmons, 543 U.S. 551 (2005) (The Supreme Court banned the death penalty for juvenile offenders); Atkins v. Virginia, 536 U.S. 304 (2002) (The Supreme Court banned the death penalty for intellectually disabled criminals); Ring v. Arizona, 536 U.S. 584 (2002) (The Supreme Court required a jury, not merely a judge alone, to find an aggravating circumstance necessary to impose the death penalty)).

[8] Death Row in the United States, The Crim. Def. Team (Aug. 29, 2024), https://www.criminaldefenseteam.com/death-row-in-the-united-states/.

[9] Nathan Mastnjak, The Death Penalty and the Consequences of the Literal Meaning of Genesis 9:6, University of Notre Dame (Sept. 12, 2023).

[10] Genesis 1:27 (ESV); Romans 13:4-7 (ESV).

[11] Mastnjak, supra note 9.

[12] The Death Penalty and the Church’s Position, Centesimus Annus Pro Pontifice, https://capp-usa.org/the-death-penalty/ (last visited Apr. 13, 2025) (citing Augustine, Letter 134, para. 4; Stromata 1:27).

[13] Centesimus Annus Pro Pontifice, supra note 4, citing St. John Paul II, Evangelium Vitae, no. 56.

[14] Centesimus Annus Pro Pontifice, supra note 4.

[15] Congregation for the Doctrine of the Faith, Letter to the Bishops Regarding the New Revision of Number 2267 of the Catechism of the Catholic Church on the Death Penalty, Vatican (Aug. 1, 2018), https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20180801_catechismo-penadimorte_en.html.

[16] Genesis, supra note 10.

[17] St. John Paul II, Evangelium Vitae ¶ 56, Vatican (Mar. 25, 1995), https://www.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html; Catechism of the Catholic Church ¶ 2267, Vatican (1993), https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_5/i_respect_for_human_life.html.

[18] Pope Francis, Fratelli Tutti ¶ 269, Vatican (Oct. 3, 2020), https://www.vaticannews.va/en/podcast/fratelli-tutti/2022/09/fratelli-tutti-audiobook-english-chapter-seven-part-three.html.

[19] Catechism of the Catholic Church ¶ 2266, Vatican (1993), https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_5/i_respect_for_human_life.html.

[20] Pope Francis, Evangelii Gaudium ¶ 198, Vatican (2013), https://www.vatican.va/content/francesco/en/apost_exhortations/documents/papa-francesco_esortazione-ap_20131124_evangelii-gaudium.html#The_special_place_of_the_poor_in_God%E2%80%99s_people.

[21] Renee Mirkes, The Catholic Response, Saint Paul VI Institute, 60 https://saintpaulvi.com/PDF/SrReneeArticles/DeathPenalty.pdf (last visited Apr. 1, 2025).

[22] Brian Bransfield, Open Wide Our Hearts: The Enduring Call to Love, United States Conference of Catholic Bishops (Oct. 29, 2024), https://www.usccb.org/resources/open-wide-our-hearts_0.pdf.

[23] Gerald Korson, The Catholic Case for Capital Punishment, Catholic Answers (May 1, 2017), https://www.catholic.com/magazine/print-edition/the-catholic-case-for-capital-punishment.

[24] Vatican, supra note 28 at ¶ 2269; Catholic Answers, supra note 35.

[25] Catholic Answers, supra note 35, (citing Joseph Bessette & Edward Feser, By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty, Ignatius Press (2017)).

[26] VI Institute, supra note 33, at 56.

[27] Amy C. Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1997-1998), https://scholarship.law.nd.edu/law_faculty_scholarship/527.

[28] VI Institute, supra note 33, at 57.

[29] VI Institute, supra note 33, at 57.

November 7, 2025 by Jackie Moen

Uncategorized

DEI IN THE AGE OF TRUMP

At the start of his second term as president, Donald Trump released an attack on DEI policies within the federal government.[1] Universities, law firms, and organizations alike scrambled to preserve their values without jeopardizing their public image or federal funding. Is it possible that diversity, equity, and inclusion (DEI) initiatives – encouraged by the Biden administration – are illegal? This is what the Trump administration claims in his executive orders.[2] The Trump administration relies upon Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), as grounds for ending DEI.[3] Recent rulings on Trump’s executive actions, however, call into question the legitimacy of this claim. Comparing recent decisions on recent Federal actions to the holding in SFFA suggests that DEI is not illegal.

Federal Education Funding and DEI

Executive Order 15141, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” impacted Federal funding made available to several schools, including the University of St. Thomas.[4] As a result, three membership organizations, of which the University of St. Thomas is a member of, sought a preliminary injunction against the Secretary of Education.[5] The plaintiffs argued that the cancellation of the federal funding violated the Due Process Clause and the Administrative Procedures Act (APA).[6] Their Due Process claim failed because the plaintiffs could not show that the termination of the funding was directly tied to Executive Order 15141.[7] Still, the court granted a preliminary injunction because changed “agency priorities” did not justify rescinding the grants without proper procedure.[8]

Federal funding for St. Thomas’s education programs was restored due to the procedural flaws of the grant’s revocation.[9] Although the case was not decided on Due Process grounds, it is important to note that the new priorities of the Department of Education contradict previous grant application requirements. President of the University of St. Thomas, Rob Vischer, explained that the grant applications required showing how the programs would contribute to diversity in the teaching profession.[10] In their 2022 and 2023 grant application notices, the Department of Education specifically listed an increase in educator diversity as priorities for all three of the disputed grants.[11] Although the Due Process claim failed, emphasizing workforce diversity was not illegal in the past. In fact, the previous administration encouraged it.

Differentiating Affirmative Action from DEI initiatives

In SFFA, the Supreme Court ruled that affirmative action in school admissions was unconstitutional. In the opinion, Chief Justice Roberts differentiates between the unconstitutional affirmative action and other permitted methods for considering race.[13] He explained, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”[14] This description accurately reflects DEI initiatives. DEI initiatives, encouraged by the Biden administration at the time of the opinion, are not the same as affirmative action. The Court specifically noted how Harvard’s admissions program aimed to maintain diversity by having racial preferences in the admissions process.[15] Affirmative action, however, is not the same as stating diversity as a priority in grant applications. Instead, DEI initiatives are goals that do not explicitly discriminate against applicants in any manner like the processes described in SFFA.

Ultimately, the grants for the University of St. Thomas were restored on procedural grounds.[16] Still, other cases challenging Trump’s attacks on DEI have succeeded on constitutional merits. For example, Perkins Coie LLP succeeded in challenging Trump’s attack on the law firm for its DEI policies on the basis of the First Amendment[17] Harvard also succeeded in maintaining Federal funding after the Trump administration threated to take away funds due to the institution’s promotion of DEI. The court determined that the Trump administration’s actions were retaliation for protected speech.[19]

Diversity, Equity, and Inclusion is not Affirmative Action

Trump’s attacks on DEI have not yet been successful. Beyond violating the Administrative Procedures Act, attacks on DEI will likely face several other barriers. Because DEI is an abstract statement of values, rather than a definitive act, broad stroke claims that DEI is “illegal” affirmative action will likely not succeed. Instead, DEI promotion will probably be considered constitutionally protected speech. That does not stop the Trump administration from shaping grant funding applications and altering institutional values. Until then, DEI will remain safe from retaliation and funding already granted remains secure. Regardless of the social, racial, or economic impacts of DEI initiatives, DEI policies are not an “illegal” form of affirmative action.

[1] Exec. Order No. 14151, 90 Fed. Reg. 8339 (January 20, 2025); Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025); Exec. Order No. 14230, 90 Fed. Reg. 11781 (March 6, 2025).

[2] Id.

[3] Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025).

[4] Gordon Severson, Dept. of Education cancels grant program, affecting 185 students at St. Thomas pursuing careers in special ed, Kare 11, https://www.kare11.com/article/news/local/dept-education-cancels-grant-program-st-thomas-special-ed/89-4e11c81d-1800-4d85-9b58-94f5b96206f3 (February 12, 2025, 9:32 PM).

[5] Am. Ass’n of Colleges for Teacher Educ. v. McMahon, 770 F. Supp. 3d 822 (D. Md. 2025).

[6] Id. at 840.

[7] Id.

[8] Id. at 855.

[9] Erin Alder, St. Thomas grants reinstated after Trump administration’s DEI cuts, Minn. Star Tribune (April 2, 2025, 2:15PM) https://www.startribune.com/st-thomas-grants-reinstated-after-trump-administrations-dei-cuts/601316701.

[10] Severson, supra note 4.

[11] Applications for New Awards; Teacher Quality Partnership Grant Program, 87 Fed. Reg. 10906-01 (February 25, 2022); Applications for New Awards; Supporting Effective Educator Development Program, 87 Fed. Reg. 19487-01 (April 4, 2022); Applications for New Awards; Teacher and School Leader Incentive Program, 88 Fed. Reg. 33592-02 (May 24, 2023).

[12] Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 230 (2023).

[13] Id. at 230-1.

[14] Id. at 230.

[15] Id. at 222.

[16] Supra note 5, at 855.

[17] Perkins Coie LLP v. U.S. Dep’t of Justice, 783 F.Supp.3d 105 (D.C. Cir. 2025).

[18] President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 25-CV-10910-ADB, 2025 WL 2528380 (D. Mass. Sept. 3, 2025).

[19] Id. at *26.

October 6, 2025 by Jack Frundt

Uncategorized

A HUMAN PROBLEM REQUIRES A HUMAN TOUCH: COMMUNITY AS THE ANSWER TO HOMELESSNESS

Many have experienced it: rolling up to a left turn light and there is someone standing there with a sign saying, “Anything helps. God bless.” What is one to do in that situation? A dollar bill feels insincere and possibly funding an underlying addiction, while directing them to a shelter feels insufficient. On any given night in Minnesota, approximately 9,000 people are homeless.^[1] Minnesota takes substantial steps to assist those experiencing homelessness including but not limited to supporting nonprofits and state-run programs^[2] to move people off the streets or keep families in their homes.^[3] Even though the number of homeless have decreased since 2020 and programs such as the Hennepin County Housing assisted 2,526 people from homelessness to permanent housing in 2024, still much work remains to be done. Additionally, “relapse” to homelessness poses an issue. The national average of those that return to homelessness after being in permanent housing is 18%.^[4] Is there a possible method to reduce the weight of this problem? Alan Graham believes the solution lies in fostering community.

Community, according to him, is common unity and the recognition that no one is better than anyone else.^[5] Paired with his definition of homelessness as a catastrophic loss of family, community becomes the home, the makeshift family for the person exiting homelessness. ^[6] Inviting the homeless into community heals recidivism to homelessness and provides hope for the broader community.

Graham, along with a host of donors, volunteers, and a team, has created a community outside the outskirts of Austin, Texas called Community First.^[7] It occupies 51 acres and is home to 470 formerly homeless people and has plans to expand to provide homes for 1,400.^[8] Yet the uniqueness rests not in its size but in the organization’s style: tiny-homes and RVs all focused on community and the stability it provides.^[9] Community First embodies its name in every aspect through communal kitchens, shared bathrooms, welcoming streets, community gardens, and an outdoor amphitheater.^[10] Residents can also support themselves through trades offered on campus including artwork, blacksmithing, woodwork, mechanical work, and a community market to name a few.^[11] Given the opportunity for creative pursuits, residents can work for themselves, pay their rent and have a greater sense of purpose while surrounded by those doing the same.^[12] The results speak for themselves–according to Community First’s data over the past seven years there is an 80% drop in drug use and 40% drop in alcohol use.^[13]

Community First upholds permanent housing with supportive community and not simply permanent housing as a standalone.^[14] “Community integration is a key predictor of housing stability for people with histories of homelessness.”^[15] For the chronically homeless, building relationships those around them help to ground them. Moreover, in order to set the stage for a successful transition from homelessness to permanent housing, this is paramount. A study published in 2020 shows “fostering a sense of belonging… could improve mental health outcomes” formerly homeless in permanent housing.^[16] Support and community stand as pillars for the integration of the homeless.

Community First offers a program called “Replication Pathways” to educate those interested in imitating their model.^[17] Sanctuary Indy is actively using the “Community-First Model” as the foundation for its campus.^[18] Springfield, Missouri began Eden Village, a spinoff created by a former employee of Community First.^[19] Other cities such as Denver have created their own version of a tiny home village with promising results in the increased mental health of the residents.^[20] The path appears rosy.

Still challenges exist and Community First has them in spades. For one, evictions still occur for residents who do not follow the rules: quiet hours, drinking or using drugs in the open, failure to pay rent, and cleanliness checks.^[21] The cultural adjustment from life on the streets or shelters to an atmosphere of tight rules can be a culture shock for some.^[22] Resistance from the surrounding neighbors and the city can pose issues as well. Community first was met with heavy resistance from the City of Austin until they decided to place their campus right outside Austin’s borders.^[23] Initially, neighbors guffawed at having an area of formerly homelessness placed adjacent to them because of the fear of rif raf and decrease in property values–neither of which has not come to fruition.^[24] Furthermore, some ex-residents and former volunteers leave disgruntled because the campus no longer has the small town feel as the expansions continue to allow an influx of ever-new faces occupying the new tiny homes.^[25] As a consequence, critics claim this steers Community First from its central goal of community and support alongside permanent housing. Nevertheless, Community First walks forward in its mission to house the homeless despite the real, human challenges that arise.

The question remains for Minnesota: Could this model exist and be successful, specifically in the Twin Cities? Generally, the policy stands to promote the creation of stable housing as opposed to prohibiting it.^[26] The sentiment to transition the homeless to shelters appears present in groups such as Align Minneapolis, which lists housing as a legislative priority.^[27] Beyond the restrictive zoning laws and regulatory barriers, the main issue is: replicating the relational culture through the intentional design.^[28] Frigid temperatures would pose a significant challenge to the open plan, which serves as the blueprint for Community First’s springboard to foster such a culture. Not only that, but their micro-homes are custom built to reduce costs, so many did not have bathrooms or kitchens within the confines of the home.^[29] This particular model would likely not align with the needs of people in a Minnesota winter. Nevertheless, this does not rule out the possibility of creative solutions. Eden Village in Springfield, Missouri has fully outfitted micro-homes while still retaining the community feel–and to boot, they face the additional challenge of each resident living with a disability.^[30] A community in Minnesota, would not have the same access to outdoor spaces for residents year round as they do in Texas, creative solutions could provide a stable connection for residents to the community.

A pipedream? Maybe. A possibility for the Twin Cities? Definitely. The funding toward various housing initiatives and shelters displays the openness of Minnesota to housing solutions. This paired with an ever-present population of homeless may pave the path for more stable and proven sites like Community First and Eden Village. No doubt the hurdles would be immense, but hurdling may be favorable over sitting on the sidelines with the unsettling feeling in one’s stomach as they pass another homeless person at a left-hand turn light.

^[1] 2024 Point in Time Count Summary, Minn. Interagency Council on Homelessness, https://mich.mn.gov/2024-point-time-count-summary (last visited Sept. 13, 2025)

^[2] Coordinated Entry Homeless Assistance, Hennepin County, https://www.hennepin.us/en/residents/human-services/coordinated-entry (last visited Sept. 13, 2025).

^[3] Family Homeless Prevention and Assistance Program (FHPAP), Minn. Hous. Fin. Agency, https://www.mnhousing.gov/rental-housing/grant-programs/active-funding/fhpap.html (last visited Sept. 13, 2025)

^[4] J. Tsai & T. Byrne, Returns to Homelessness: Key Considerations for Using This Metric to Improve System Performance, 113 Am. J. Pub. Health 490, 490-94 (2023).

^[5] Alan Graham, Welcome Homeless: One Man’s Journey of Discovering the Meaning of Home 129 (Thomas Nelson 2017).

^[6] Graham, supra note 5.

^[7] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[8] Community First! Village Capital Campaign https://mlf.org/capital-campaign/ (last visited Sept. 13, 2025).

^[9] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[10] Id.

^[11] Community First! Village, Mobile Loaves & Fishes, https://mlf.org/community-first/ (last visited Sept. 13, 2025).

^[12] Adrienne Herzog, Evaluating Homes for the Homeless: Psychosocial Factors of Tiny-Home Villages (B.S. thesis, Univ. of Oregon June 2019).

^[13] Joe Rogan, Episode No. 2181 featuring Alan Graham, The Joe Rogan Experience (July 26, 2024) (downloaded using Spotify).

^[14] Community First! Village, Mobile Loaves & Fishes, https://mlf.org/community-first/ (last visited Sept. 13, 2025).

^[15] A. Bassi, J. Sylvestre & N. Kerman, Finding Home: Community Integration Experiences of Formerly Homeless Women with Problematic Substance Use in Housing First, 48 J. Comm. Psychol. 2372, 2372–90 (2020), https://doi-org.ezproxy.stthomas.edu/10.1002/jcop.22423.

^[16] W. La Motte-Kerr et al., Exploring the Association of Community Integration in Mental Health Among Formerly Homeless Individuals Living in Permanent Supportive Housing, 66 Am. J. Comm. Psychol. 3, 3-13 (2020), https://doi.org/10.1002/ajcp.12459.

^[17] Community First! Replication Pathway, Mobile Loaves & Fishes, https://mlf.org/replication/ (last visited Sept. 13, 2025).

^[18] Rivkin, Jan, and Coelin P. Scibetta. “Community First! Village: Scaling Goodness?” Harvard Business School Case 725-443, May 2025. (Revised September 2025.)

^[19] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[20] Jennifer Wilson et al., A Fresh Look at Tiny Homes, Univ. of Denver Graduate Sch. of Soc. Work (Jan. 26, 2021), https://socialwork.du.edu/news/fresh-look-tiny-homes.

^[21] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[22] Id.

^[23] Joe Rogan, Episode No. 2181 featuring Alan Graham, The Joe Rogan Experience (July 26, 2024) (downloaded using Spotify).

^[24] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[25] Id.

^[26] Housing and Homelessness: Policies and Procedures, Minn. Dep’t of Human Servs., https://mn.gov/dhs/partners-and-providers/policies-procedures/housing-and-homelessness/ (last visited Sept. 13, 2025)

^[27] 2025 State Legislative Priorities, Align Minneapolis, https://www.alignmpls.org/legislativeadvocacy (last visited Sept. 13, 2025).

^[28] Shelby Blessing, Community First – Designing to End Homelessness in Austin, TX, Shared Space with Erin Peavey (Jan. 13, 2024), https://www.erinpeavey.com/sharedspace/community-first-designing-to-end-homelessness.

^[29] Community First! Village, Mobile Loaves & Fishes, https://mlf.org/community-first/ (last visited Sept. 13, 2025).

^[30] Eden Village, Springfield, MO, https://edenvillagespringfield.org/ (last visited Sept. 13, 2025).

October 6, 2025 by David Flynn

May 2025 Blog Posts

NATURAL LAW AND THE CONSTITUTION

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”^[1] One of the most well-known phrases in American history. This statement is an affirmance that the founding fathers believed all men were vested with natural rights that the state was prohibited from taking without the consent of the people. The existence of rights, absent their codification into law is put forth in the Ninth Amendment. It reads that there are an indefinite number of rights protected but not enumerated by the Constitution. It acknowledges a plethora of rights natural to man, so many so that the drafters of the Constitution could not list them all. They knew that there would arise occasions at which a right would be contested, and without the protection of the Ninth Amendment, it may be eradicated. Yet, the Supreme Court has resisted placing substantive due process rights in the Ninth Amendment, in actuality, the Court has resisted using the Ninth Amendment in any real manner. In such chaotic times as these, the Court should consider the proper application of the Ninth Amendment, however, in doing so it ought to stay as far as possible from the chaos of natural law.

Natural Law vs. Natural Rights

There are two forms of natural, inherent, existence principles that are commonly discussed. Natural law, as Saint Thomas Aquinas believed, is the participation of mankind in eternal law.[2] In contrast, is natural rights, the idea that there are certain rights of existence that are inherent in mankind.[3]

The concept of natural rights, as opposed to natural law, is well imbued in the United States Constitution. The Bill of Rights being the most ardent example of the codification of natural rights. The right to worship as one sees fit, the right to bear arms, the right to due process of law, these are all rights that are recognized by the Constitution as a codification of those specific natural rights. The most obvious acknowledgment of, and protection thereof, natural rights is the Ninth Amendment which reads, “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Justices across the aisle have struggled with how to apply this Amendment, furthermore it has not been incorporated against the states as many of the other rights secured in the Bill of Rights has.

Natural Rights in the Context of the Ninth Amendment

Historically, the Ninth Amendment was used most commonly to strike down laws for exceeding the state’s power to legislate.[4] The Fourteenth Amendment on the other hand has been propositioned that due process as ascribed in the Constitution, simply means that a state cannot infringe upon your rights without procedural process that is fair and equitable to all.[5] In contrast, Professor Kurt T. Lash argued that the drafters of the Fourteenth Amendment understood it to protect unspoken fundamental, inherent, natural rights.[6]

One of the most famous cases in American substantive due process and natural rights, discourse is Griswold v. Connecticut, where the United States Supreme Court held that married people had a right to purchase and use contraceptives if they so desired.^[7] This case presented a slam dunk for the Court to use the Ninth Amendment, yet they shied away from holding that the right to contraceptives was found in the “penumbral rights of ‘privacy and repose.”^[8] The Court looked at these overlapping zones of privacy created by the First, Third, Fourth, Fifth, and Ninth Amendments as creating a Constitutional guarantee to the right of privacy. While not explicitly relying upon the Ninth Amendment, the Court implicitly acknowledges a fundamental, imbued right to privacy. Free from the state’s ability to reach into one’s marriage. The Court struggled to articulate what exact Constitutional principle it found such right, but still it acknowledged it existed. In the last full paragraph of the majority opinion, the Court acknowledged that they were dealing with a right “older than the Bill of Rights – older than our political parties, older than our school system.”^[9] They knew there was a fundamental right here implicated by their decision.

Conclusion: Natural Law has No Place in Jurisprudence

When considering the structure of our government it becomes abundantly clear that the courts should have no legitimate role in mandating or implicating natural law. The judiciary is the only branch of the government that is not directly voted in by the people. All justices of the Court are nominated by the executive, then confirmed by the Senate.[10] The congress is specially designed to respond to the will of the people, the House of Representative’s requiring elections every two years.[11] The Senate on the other hand has a 6-year term limit, and the executive has a 4-year term limit.[12] The judiciary on the other hand, has no term limit, with the only condition on their appointment that they shall have good behavior.[13] All it takes is 5 rouge or politically motivated justice who sit on the Court to alter, revoke, create, or change a right. With no accountability, the Court has limited incentives to stay apolitical.

[1] Declaration of Independence (US 1776).

[2] Murphy, Mark, The Natural Law Tradition in Ethics, The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), Edward N. Zalta (ed.)

[3]John Loche. Second Treatise of Government: An Essay Concerning the True Original, Extent and End of Civil Government, (1689).

[4] Ilan Wurman, The Origins of Substantive Due Process, 87 Univ. Chic. L. R. 815, 818, (2020).

[5] Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1679 (2012).

[6] Kurt T. Lash, Enforcing the Rights of Due Process: The Original Relationship Between the Fourteenth Amendment and the 1866 Civil Rights Act, 106 Georgetown L.J. 1389, 1459-60, 1466-67 (2018).

[7] Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).

[8] Id. at 485.

[9] Id. at 486.

[10] U.S. Const. art. II, sec. II, cl. II.

[11] Id. art. I, sec. II, cl. I.

[12] Id. art. I, sec. III, cl. 4; U.S. Const. art. II, sec. 1, cl. 1.9.

[13] U.S. Const. art. III, sec. I.

May 19, 2025 by Josiah

May 2025 Blog Posts

FROM STREETS TO COURTROOMS: THE LEGAL BATTLE OVER HOMELESS ENCAMPMENTS

The local and national homelessness crisis in the United States is a deep-rooted, complicated problem.[1] Various factors affect homelessness across the United States including, social detriments, economic impacts, political influence, and racial disparities.[2] The U.S. Department of Housing and Urban Development (HUD) estimates 653,104 people in the United States experienced homelessness in 2023.[3] Minnesota’s homelessness substantially contributes to the national homelessness statistics. For example, approximately 10,522 Minnesotans experienced homelessness in 2024, and 3,472 of those individuals were not in a formal shelter.[4] Individuals who do not seek formal shelters may settle into homeless encampments as a cost-effective and safer alternative.[5] Are homeless encampments really that safe, and what is Minnesota doing to manage these encampments? The Supreme Court of the United States and Minnesota law makers provided guidance on how to best manage homeless encampments, as we will explore further.

A homeless encampment can be defined as, “places where a group of individuals experiencing homelessness reside that is not intended for long-term continuous occupancy.”[6] Oftentimes homeless encampments arise from “severe shortages of affordable housing, poverty, and insufficient resources.”[7] Individuals may choose to reside in homeless encampments for a variety of reasons such as (1) desire for community, (2) perceived increased safety and support, and (3) personal privacy.[8] Homeless encampments are not per se illegal; however, the Supreme Court of the United States recently broadened the forms of criminal punishments allowed against individuals residing in homeless encampments.[9] The Supreme Court (in City of Grants Pass v. Johnson) decided states will not violate the 8^th Amendment of the United States Constitution (guaranteeing no cruel and unusual punishment) when they penalize individuals residing in homeless encampments.[10] The Supreme Court believed homelessness, even if involuntary, should be managed by the states in any manner the state feels is necessary.[11] Now, state law enforcement personnel can fine, remove, and/or arrest individuals from their homeless encampments without provocation.[12] Per the Supreme Court, these types of punishments are not cruel or unusual because they are not “designed to [cause] terror, pain, or disgrace” to the individual.[13]

The result of the Supreme Court’s ruling in City of Grants Pass v. Johnson has many Minnesotans afraid of possible furthered negative consequences for residents of homeless encampments.[14] Specifically, imposing criminal penalties for residents of homeless encampments may cause increased displacement issues, mental health concerns, reduced social harmony, and “worsening legal and financial complications.”[15] Some community members and organizations critiqued the Supreme Court’s ruling, claiming criminal punishments may not be the best way to solve the homeless encampment crisis.[16] A more effective solution may include increased state housing funding for individuals experiencing homelessness, and/or increased funding for mental health and substance abuse services.[17] Minnesotans may notice improved community relations and reduced homeless encampments with better supported emergency shelters and/or community-based services (rather than penalizing individuals based on housing status).[18]

Minnesota responded to the Supreme Court’s decision in City of Grants Pass v. Johnson approximately three months later by amending a Minneapolis Housing Ordinance specifying strict encampment removal procedures that law enforcement personnel must follow.[19] The amended ordinance also provides temporary housing permits to individuals residing in homeless encampments or other forms of non-traditional housing.[20] Additionally, the City of Minneapolis will consider various factors affecting the greater community before removing a homeless encampment such as (1) neighborhood/geographic impact, (2) health impact, (3) safety impact, and (4) external impact.[21] Minnesota Governor, Tim Walz, enacted the Local Homeless Prevention Aid Act in 2021, which devoted Minnesota state funding to homeless crisis prevention services.[22] The state provided twenty million dollars across Minnesota Counties in 2024, with Counties having broad allocation discretion to use the funds as they deem necessary for their communities.[23] However, Minnesota state homelessness funding through the Local Homeless Prevention Aid Act will not increase in 2025, despite the ongoing need for increased housing services for residents of homeless encampments.[24]

Minnesota has not officially commented on the Supreme Court’s decision allowing criminal penalties against residents of homeless encampments.[25] Relatedly, Minnesota housing providers say criminal penalties against individuals sleeping on public property have not increased since the Supreme Court’s decision in June of 2024.[26] However, Minnesota will likely follow the Supreme Court’s rule and begin distributing criminal penalties against homeless individuals since less severe offenses are readily dealt (such as loitering, trespassing, and public urination) to maintain homeless encampment transience.[27] The legal battle over the homeless encampment crisis is nowhere close to a resolution and will likely continue long-term.

[1] Laura M. Houghtaling et al., Unaccompanied Unstable Housing Among Racially, Ethnically, Sexually, and Gender Diverse Youth: Intersecting Identities Bearing the Greatest Burden, 94 Am. J. Orthopsychiatry 311, 312 (2024).

[2] Id.

[3] U.S. Dep’t of Hous. And Urb. Dev., The 2023 Annual Homelessness Assessment Report (AHAR) to Congress (2023), https://www.huduser.gov/portal/sites/default/files/pdf/2023-AHAR-Part-1.pdf.

[4] Amherst H. Wilder Found., Single Night Count of People Experiencing Homelessness: 2023 Minnesota Homeless Study Counts and Data Tables (2023), https://www.wilder.org/sites/default/files/minnesota-homeless-study/2023/counts/Statewide-2023-Homeless-Counts_3-24.pdf?v=2.

[5] Rebecca Cohen et al., Understanding Encampments of People Experiencing Homelessness and Community Responses: Emerging Evidence as of Late 2018, U.S. Dep’t of Hous. And Urb. Dev. (Jan. 7, 2019), https://www.huduser.gov/portal/sites/default/files/pdf/Understanding-Encampments.pdf

[6] Nat’l League of Cities, An Overview of Homeless Encampments for City Leaders (2022), https://www.nlc.org/resource/an-overview-of-homeless-encampments/.

[7] Id.

[8] Cohen, supra note 5, at 4.

[9] See City of Grants Pass v. Johnson, 144 S. Ct. 2202, 2226 (2024).

[10] Id.

[11] Id. at 2218.

[12] Katelyn Vue, Supreme Court homelessness ruling: What it means for Minnesota, Sahan J. (Aug. 1, 2024), https://sahanjournal.com/housing/supreme-court-homeless-ruling-grants-pass-minnesota-concerns; Susan Du, Experts working to end homelessness in Minnesota say high court ruling will make jobs harder, Minn. Star Tribune (Jul. 2, 2024), https://www.startribune.com/experts-working-to-end-homelessness-in-minnesota-say-supreme-court-ruling-will-make-their-jobs-harder/600377966.

[13] City of Grants Pass v. Johnson, 144 S. Ct. at 2216 (2024).

[14] Shannon Smith Jones & Kizzy Downie, Compassion, not punishment, is key to ending homelessness, Minn. Star Tribune (Jul. 25, 2024), https://www.startribune.com/compassion-not-punishment-is-key-to-ending-homlessness/600386163.

[15] Id.

[16] Michelle Decker Gerrard & Stephanie Nelson-Dusek, Ruling in Grants Pass v. Johnson misses the mark on homelessness, Minn. Post (Jul. 3, 2024), https://www.minnpost.com/community-voices/2024/07/ruling-in-grants-pass-v-johnson-misses-the-mark-on-homelessness/

[17] Id.

[18] Id.

[19] Minneapolis, Minn. Rev. Ordinance 12 Ch. 244 (2024).

[20] Id.

[21] City of Minneapolis, City Response to Homelessness (2024), https://www2.minneapolismn.gov/government/programs-initiatives/housing-development-assistance/emergency-homeless/city-response/

[22] Laws of Minn. 2021, Ch. 14, Art. 7, Sec. 3.

[23] Minn. Dep’t of Revenue, Summary of Local Homeless Prevention Aid (LHPA) Certified for 2024 (2023), https://www.revenue.state.mn.us/sites/default/files/2023-07/2024-local-homeless-prevention-aid-summary.pdf; Minn. Interagency Council on Homelessness, Use of Funding & Resources (2024), https://mich.mn.gov/local-homeless-prevention-aid.

[24] Minn. Dep’t of Revenue, Summary of Local Homeless Prevention Aid (LHPA) Certified for 2025 (2024), https://www.revenue.state.mn.us/sites/default/files/2024-07/2025-local-homeless-prevention-aid-summary.pdf.

[25] Vue, supra note 12.

[26] Id.

[27] Id.

May 16, 2025 by Josiah

May 2025 Blog Posts

Trump, Prejudice, and Power: The Rhetoric That Divides

Bobbie Schermbeck

March 10^th, 2025, 49 days since President Trump took office for the second time. An overwhelming question has been on my mind since then: Why do people support him? I’m trying to separate this question from the black and white of Republican vs. Democrat. When people talk about America, the American Dream, and “how great” America is, it suggests we’re looking for a strong leader—someone who will guide America toward a brighter future, much like Reagan or Roosevelt did, at least by Republican standards. Yet, instead, we have a former reality TV star and felon. The connection to a strong America just isn’t there for me.

I studied psychology while in undergraduate school, so I looked for answers there. Following the Holocaust, several theorists thought prejudice might be pathological and searched for personality syndromes associated with it.[1] Theodor Adorno, one of the theorists who fled Nazi Germany, and his co-authors believed that the key to prejudice lay in the Authoritarian Personality.[2] Bob Altemeyer, a renowned psychologist in the area, focused most of his career on authoritarianism. He proposed that there were two characteristics that marked authoritarians and caused prejudice.[3] The first is their tendency to organize their world views as in-groups and out-groups.[4] The second is their self-righteousness, and that they will feel free to express prejudice against members of the out-groups who their authority figure has labeled immoral or a threat to their traditional values.[5]

Today, the research in this area reflects the political sphere, and two theories are associated with right-wing voters. The first, Right Wing Authoritarianism (RWA), is defined as “a personality type that describes somebody who is naturally submissive to their authority figures, acts aggressively in the name of said authorities, and is conformist in thought and behavior.”[6] Social Dominance Theory (SDO), the second, is a “model of the development and maintenance of social dominance and oppression that assumes societies minimize group conflict by creating consensus on ideologies that promote the superiority of one group over others.”[7] These Ideologies promote or maintain group inequality and are tools that legitimize discrimination.[8] SDO is also used to reinforce hierarchical myths.[9] Both RWA and SDO are substantial predictors of intergroup prejudices.[10] Individuals who have higher levels of authoritarian traits are more likely to have negative views of minority groups, or those they consider the out-group.[11]

Of course, not all of Trump’s supporters are authoritarians or would rank highly on either scale. However, the degree to which authoritarian tendencies manifest in public life depends on whether society gives those views credibility.[12] That is where the “charismatic” leader comes in. Trump could teach a master class on how to cause civil unrest as he plays on both his voters’ fears and desires with almost an expert employment of dog-whistle politics. He either overtly or covertly gives his followers the credibility they seek regarding their outgroup beliefs.

Dog-whistle politics is a political ideology that suggests the use of coded messages that on their face are innoxious but to a follower is suggestive and will garner political support.[13] They appeal to specific audiences with the goal of inciting support or perpetuating divisive ideologies without directly stating them. For example, before the election, Trump’s Vice Presidential candidate said, “In two days, we are going to take out the trash in Washington, D.C., and the trash’s name is Kamala Harris.”[14] While not overtly racist or sexist on the surface, an audience already predisposed to negative stereotypes about women and Black individuals will resonate with the message. A more covert example is the Trump Administration’s play on language like ‘hard work,’ which is used to uphold stereotypes that people create their own poverty because they are lazy and rely on government handouts.[15] On its face, his message may have a positive spin, but it subtly implies that people in poverty are undeserving of help. This is broadly appealing to those who believe in rugged individualism while stigmatizing others who rely on government assistance, particularly targeting marginalized communities. Dog-whistling can create a sense of solidarity or reinforce in-group/out-group dynamics among voters, which may explain why people are drawn to it–even if the rhetoric itself isn’t overtly aggressive–which plays well to the voters who do register highly on the authoritarian scale, as well asvoters who identify with the underlying messages. Of late, Trump has mostly left these veiled messages behind and moved for more a more openly bigoted rhetoric. The Trump Administration’s rhetoric is akin to populism. Populism is where a “charismatic leader” claims to be speaking for and to his people.[16] This leader will articulate his followers’ grievances in a way few other mainstream politicians are willing to do.[17] Trump has consistently positioned himself as a champion of the “common people” against a corrupt elite, including the media, politicians, and the “deep state,” a key aspect of populism. He has also framed his campaigns as anti-establishment, promising to “drain the swamp” and disrupt Washington’s entrenched political class. He appeals to his followers with inflammatory statements and frames himself as an outsider fighting against a corrupt elite.[18]

Here are a few examples of Trump’s rhetoric: When a white supremacist mob marched in Charlottesville in 2017 and chanted through the streets “Blacks will not replace us” and “Jews will not replace us”,[19] Trump came to their defense, saying, “there was blame on both sides…You had some very bad people in that group. You also had some very fine people on both sides.”[20] Another infamous example is asking the Proud Boys[21] to “stand back and stand by.”[22] Beyond these general expressions of bigotry, Trump’s rhetoric also targets specific groups, particularly immigrants, reinforcing his populist narrative with inflammatory and dehumanizing language. During his rallies for his first administration, he would often read lyrics from “The Snake”. He quotes “You knew damn well I was a snake before you let me in” to spin a negative light on immigrants who have come into this country.[23] He turns his followers against immigrants and anyone sympathetic to them by convincing them that outsiders are a mortal threat, a clear example of feeding into out-group dynamics.[24] “His voters are primed to accept anti-immigration rhetoric and to be frightened by it.”[25] Ironically, a civil rights activist wrote “The Snake”, and his family is suing Trump for using the lyrics.[26] To cement the idea to his followers that immigrants are dangerous, he has likened them to murderers andanimals, said they had failed genes, and that they were all from “Shithole Countries”. During his latest campaign, he accused Haitian immigrants of “Eating the dogs.”[27]

This type of discourse is not new to him.[28] In 1973, the DOJ sued Trump for racial discrimination after his apartment manager admitted Trump told him not to rent to Black tenants.[29] In 1989, he continued by taking out an ad in a New York newspaper that called for the reinstatement of the death penalty.[30] The ad targeted the Central Park Five, a group of young Black boys wrongly accused of raping a woman in central park. DNA evidence exonerated all five men, and Trump refused to make an apology.[31] Trump even doubleddown just last year, saying the Central Park Fivehad killed the person attacked[32] It is likewise ironic Trump would claim to “stand up” for a woman who has been raped, given his own history of supporting or engaging in behavior that aligns with sexual harassment. With perhaps his most famous quote from 2005, “I’m automatically attracted to beautiful women—I just start kissing them, it’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything…Grab them by the pussy.”[33] Trump’s ability to make such statements without consequence while holding our nation’s highest office validates his followers in holding or expressing the same harmful beliefs.

It is past supposition that Trump’s words are being seen by his followers as a call to do harm. In November 2016, the Southern Poverty Law Center recorded 1,094 reports of incidents involving hate and harassment directed at women, Muslims, and other groups criticized by Trump.[34] In 2018, Cesar Sayoc sent 16 pipe bombs to journalists, prominent Democrats, and other public figures whom Trump had openly denounced.[35] During court proceedings, Sayoc’s lawyer said Trump’s rhetoric caused his client’s behavior.[36] By 2019, the Guardian identified 52 instances of violence or threats of violence carried out by Trump supporters “in the name of Trump.”[37] On January 6, 2021, a crowd of Trump supporters stormed the U.S. Capitol, shouting threats against legislators opposing Trump and even members of his administration, including Vice President Mike Pence, whom they viewed as disloyal to Trump.[38] And in 2024, in the town of Springfield, Ohio, where he accused immigrants of eating dogs, there were bomb threats investigated by the FBI and white nationalist groups like the Proud Boys and the Ku Klux Klan marching the streets.[39] Trump’s campaigns have energized the racist right; “the most prominent U.S.-based white supremacist websites, the neo-Nazi Stormfront and The Daily Stormer, launched extensive online campaigns supporting Trump’s presidential bid, and both sites experienced dramatic increases in traffic.”[40] Some studies have hypothesized that not only did his rhetoric throughout his first campaign create an uptick in hate crimes, but that his subsequent election validated those crimes to his followers.[41]

Going a step further, Trump has employed a very interesting scheme related to the media. He has created an enemy of the press by labeling all mainstream news outlets that say things he doesn’t like as “fake news.” This has not only created distrust in the media but has facilitated the spread of actual misinformation, encouraging his supporters to disregard factual reporting and accept his narrative instead. By attacking the credibility of outlets like CNN, The New York Times, and others, he undermined the media’s role as a check on political power, making it harder for the public to discern fact from fiction. But he also uses the media, especially social media, to allow for more widespread coverage of his ideals. Social media platforms, particularly Twitter (now X) and Truth Social, allowed him to bypass traditional media filters, speak directly to his followers, and spread his message without any editorial oversight. His tweets and rallies often sparked viral news cycles, amplifying his views and keeping his agenda at the forefront of public discussion. At the same time, this media manipulation created a fragmented landscape, where his supporters consumed news that reinforced their beliefs, while critics were painted as part of the “elite” media. In doing so, Trump has reshaped how political messaging is delivered, furthering polarization and making it difficult for people to agree on shared facts.

So, has Trump’s rise to power simply been a matter of him saying the right things to the right people? In many ways, it seems that way—Trump’s success appears to stem from his ability to tap into the emotions, frustrations, and fears of specific groups, speaking directly to their concerns in a way that resonates deeply with them. He has mastered the art of knowing which buttons to press to rally his base, often using language that stirs strong feelings without ever directly addressing the complexities of the issues at hand. It is chilling to consider how easily such rhetoric can sway people and shift political dynamics. After all, it only took Hitler 53 days to convince an entire nation, using similarly simplistic and emotionally charged rhetoric that capitalized on existing fears, economic turmoil, and a sense of national grievance to pass the Enabling Act.[42] While the comparison might seem extreme, the underlying tactics of appealing to baseless fears, creating scapegoats, and manipulating emotions are disturbingly similar, raising questions about how fragile public opinion can be when leaders know exactly what to say to exploit it.

Donald Trump’s discourse and political strategies illustrate the significant influence of language in shaping societal attitudes and behaviors. His use of dog-whistle politics and, increasingly, overtly divisive statements has not only fostered animosity toward marginalized groups but also amplified existing social and political divides. By framing certain groups as threats and embracing inflammatory discourse, Trump has empowered his supporters while leaving others alienated and vulnerable to harm. The real-world consequences of this rhetoric are difficult to ignore. These patterns raise important questions about the responsibilities of political leaders and the impact their words can have on a nation’s cohesion and moral fabric. As Trump’s influence continues to shape political discourse in the United States, how deeply these divisions will affect the country’s future is unknown. Understanding and addressing these dynamics may be critical to fostering a society that values inclusion, dialogue, and mutual respect over division and hostility. I am worried that this second term is validating his messaging, and the divide will grow so deep that we will not be able to cross over it again.

[1]S. Plous, The Psychology of Prejudice, Stereotyping, and Discrimination: An Overview, Understanding Prejudice, https://secure.understandingprejudice.org/apa/english/page3.htm#:~:text=First%2C%20a%20politically%20conservative%20form,a%20central%20ingredient%20in%20prejudice.%20 (last visited Mar. 13, 2025).

[2] Id.

[3] B. E. Whitley, Jr., Right-wing Authoritarianism, Social Dominance Orientation, and Prejudice. 77 J. Personality & Soc. Psych. 1, 126–34. https://doi.org/10.1037/0022-3514.77.1.126

[4] Id.

[5] Id.

[6] Right Wing Authoritarianism, Scholarly Community Encyclopedia, https://encyclopedia.pub/entry/28405 (last visited March 13, 2025). Not to be confused with left-wing authoritarians, who Altemeyer described as people who submit to authorities who want to overthrow the establishment, versus right-wing authoritarians, who submit to the already established authority figure.

[7] Social Dominance Theory (SDT), Am. Psych. Ass’n, https://dictionary.apa.org/social-dominance-theory (last visited Mar. 13, 2025).

[8] Id.

[9] Id.

[10]Amélie Bret et al., Right Wing Authoritarianism Is Associated with Race Bias in Face Detection, PLoS One (July 10, 2017), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0179894.

[11] Id.

[12] Authoritarianism Among Trump Voters, Monmouth Univ., https://www.monmouth.edu/polling-institute/reports/monmouthpoll_authpanel_011921/ (last visited Mar. 13, 2025).

[13] Ian Olasov, Offensive political dog whistles: You know them when you hear them. Or do you?, Vox, (Nov. 7, 2016) https://www.vox.com/the-big-idea/2016/11/7/13549154/dog-whistles-campaign-racism.

[14] Savannah Kuchar, Vance calls Harris ‘trash’ after deriding her for Biden’s garbage gaffe, USA Today, (Nov. 4, 2024), https://www.usatoday.com/story/news/politics/elections/2024/11/04/vance-garbage-criticism-harris-trash/76053720007/.

[15] Thomas Beaumont & Matt Brown, Trump invokes racist tropes, calling Harris ‘lazy as hell’ and ‘slow’, Associated Press, (Oct. 22, 2024), https://whyy.org/articles/trump-racist-tropes-lazy-slow-harris/.

[16] P. Cushman, Resentment, online living, and sacred soldiers in Trumpist America: Toward understanding the emergence of a populist cult., 44 J. Theoretical & Phil. Psych. 2, 80–94 (2024). https://doi.org/10.1037/teo0000259.

[17] Id.

[18] His rhetoric is, however, different from the polices he enacts and the actions he takes, he has surrounded himself with the billionaire elites and while he has “drained the swamp” its of people who are anti-trump not anti-establishment.

[19] Trump lashes out at ‘alt-left in Charlottesville ‘fine people on both sides’, ABC News, (Aug. 15, 2017), https://abcnews.go.com/Politics/trump-lashes-alt-left-charlottesville-fine-people-sides/story?id=49235032.

[20] Id.

[21] Proud Boys, ADL, https://www.adl.org/resources/backgrounder/proud-boys (last visited Mar. 15, 2025). The proud boys are a far-right, neo-Nazi group who are associated with violence and the attack on the capital on January 6^th.

[22] Rosie Gray, Trump Defends White-Nationalist Protesters: ‘Some Very Fine People on Both Sides’, Congress, (Apr. 15, 2017), https://www.congress.gov/118/meeting/house/116973/documents/HHRG-118-ED00-20240417-SD006.pdf.

[23] Donald Trump Reads “The Snake” song lyrics at a Florida Rally, Dangerous Speech Project (Dec. 24, 2021), https://www.dangerousspeech.org/libraries/donald-trump-reads-the-snake-song-lyrics-at-florida-rally [hereinafter Dangerous].

[24] Id.

[25] Id.

[26] Karen Pinchin, Insects, floods, and “The Snake”: What Trumps use of Metaphors Revels, PBS, (Oct. 22, 2019) https://www.pbs.org/wgbh/frontline/article/insects-floods-and-the-snake-what-trumps-use-of-metaphors-reveals/. Oscar Brown Jr.’s family is suing the Trump administration for using the lyrics, and Maggie Brown, his daughter, is quoted saying “My first feeling was that my dad’s name doesn’t belong in Trump’s mouth,… It reminded me of a lynching scene, getting folks all riled up, about to kill this [black person]. I hated the idea of him using Oscar’s words to create such a platform.”

[27] Merlyn Thomas & Mike Wendling, Trump repeats baseless claim about Haitian immigrants eating pets, BBC (Sept. 15, 2024), https://www.bbc.com/news/articles/c77l28myezko.

[28] David Leonhardt & Ian Prasad Philbrick, Donald Trump’s Racism: The Definitive List, Updated, N.Y. Times, (Jan. 15, 2018), https://www.nytimes.com/interactive/2018/01/15/opinion/leonhardt-trump-racist.html. A compiled list of some of Trump’s racist remarks.

[29] Trump calls Harris ‘lazy’, invokes racist trope against Black people, Business Standard (Oct. 23, 2024), https://www.business-standard.com/world-news/trump-calls-harris-lazy-invokes-racist-trope-against-black-people-124102300039_1.html.

[30] Jan Ransom, Trump Will Not Apologize for Calling for Death Penalty of Central Park Five, N.Y. Times (June 18, 2019), https://www.nytimes.com/2019/06/18/nyregion/central-park-five-trump.html.

[31] Id.

[32] Jaclyn Diaz, The Central Park Five are suing Trump over Philly debate comments, NPR (Oct. 21, 2024), https://www.npr.org/2024/09/11/nx-s1-5108632/central-park-five-trump-debate.

[33] Jane C. Timm, Trump on Hot Mic: ‘When you’re a star… you can do anything’ to women, NBC News (Oct. 7, 2016), https://www.nbcnews.com/politics/2016-election/trump-hot-mic-when-you-re-star-you-can-do-n662116.

[34] Dangerous, supra note 23.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] William Brangham & Mary Fecteau, How life in Springfield has been disrupted by lies about its Haitian community, PBS News (Sep. 17, 2024), https://www.pbs.org/newshour/show/how-life-in-springfield-has-been-disrupted-by-lies-about-its-haitian-community.

[40] Brett A. Barnett, The Trump Effect: The 2016 Presidential Campaign and the Racist Right’s Internet Rhetoric, 14 J. Hate Stud.1, 5 (Feb. 27, 2019), DOI: 10.33972/jhs.125, https://repository.gonzaga.edu/jhs/vol14/iss1/5/

[41] Griffin S. Edwards & Stephen Rushin, The Effect of President Trump’s Election on Hate Crimes (Jan. 14, 2018). Available at SSRN: https://ssrn.com/abstract=3102652.

[42] The Enabling Act: Even more power for Hitler, Anne Frank House, https://www.annefrank.org/en/timeline/48/the-enabling-act-even-more-power-for-hitler/#:~:text=On%2023%20March%201933%2C%20the,a%20period%20of%20four%20years (last visited Mar. 15, 2025). The Act allowed Hitler to enact new laws without interference from the president or the Reichstag (German parliament) for a period of four years. Similarly, on Truth Social, Trump said, “He Who saves the country, does not violate any law”. This implies that he believes he, too, is above the law.

Katie Herchenroder, Trump Alludes the Law does not Apply to him if he “saves” the Country, Vanity Fair (Feb. 16, 2025), https://www.vanityfair.com/news/story/trump-implies-above-the-law-to-save-the-country?srsltid=AfmBOop6eBeTk6jjk_lU4Y6-lEil5e3-YWYFRRn5lQApOnScqTyIapxK.

May 12, 2025 by Meredith LaVine

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