Journal on Constitutional Democracy

Open During Construction Vol. 4



From the students of
the Kinder Institute on Constitutional Democracy’s
Society of Fellows to our professors and mentors,

especially Dr. Justin Dyer, Dr. Jeff Pasley,
Dr. Carli Conklin and Dr. Thomas Kane



JOURNAL ON CONSTITUTIONAL DEMOCRACY

2017-2018 Editorial Board

Senior Editor
Taylor Tutin

Content- and Copy Editing
Abigail Kielty
Riley Messer
Matt Orf

Nathanael Owens
Raymond Rhatican
George Roberson

Layout and Design
Dylan Cain

Bailey Conard
Alexander Galvin

Sarah Jolley
Carley Johansson
Gabriela Martinez

Rylie White



Table of Contents

Note from the Editor
by Taylor Tutin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Machinery of Government
Government of the People(?), by the People(?), for the People(?)
by Taylor Tutin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Defining Political Corruption in the Founding Era and the Modern Era
by Riley Messer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Iran and Chile: An Examination of Human Rights Conditions Following United States Influence
in Coup d’états
by Rylie White. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Wizards of Odds: Tammany Hall’s Manipulation of Electoral Margins
by Sarah Jolley . . . . . . . . 38

The Language of Mobilization
Black Monday: American Mores in News Media
by Gabriela Martinez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
This Land is Our Land: The 1969 Native American Protest Occupation of Alcatraz Island
by Alexander Galvin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

“Stretching the Seams”: Thoreau’s Walden as a Work of Self-Improvement Literature
by Nathanael Owens . . . . . 68
The Myth of Unity: Music, Art, and the Great Depression
by Dylan Cain . . . . . . . . 76
The Government of Machinery
The Age of Television News
by George Roberson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Constructing the American Identity in the Trump Era
by Matt Orf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

The Mobilization of Language
A Poem of Her Own: Elizabeth Cady Stanton’s Re-Appropriation of Alfred,
Lord Tennyson’s The Princess
by Abigail Kielty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
The Mistress Persists: Historicizing the 53% of White Women Who Voted for Donald Trump
by Carley Johansson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
The Past Was Female, Too
by Bailey Conard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Why the Moon?: Kennedy’s Direction of the American Spirit
by Raymond Rhatican. . . . . 150

Image Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

8 Kinder Institute

Note from the Editor

To past, current, and future constructers,

As I turned into my local McDonald’s about a year-and-a-half ago, I saw a banner in the front that read “OPEN
DURING CONSTRUCTION” and was decked out with little Minions (yes, the small yellow children’s characters).
At first, I didn’t really give it much thought. Renovation for the world’s largest fast food chain was not something
worth marveling over, especially given how much construction takes place during Missouri summers. However, as
I pulled into the drive through, I realized that almost the entirety of the restaurant was under construction, rather
than just your routine Play Place. I thought to myself: how does McDonald’s manage to stay open during this? And
as I grappled with that question, another one arose: why do “under construction” and “open” strike us as mutually
exclusive conditions?

Our nation is one of constant construction and moreover, one that is constantly open during construction. The
United States has 435 elected officials whose primary task is to add, revise, or retract statutes and regulations. Our
representation is always under construction, as we seem to be perpetually nearing the next election year. While
the revision of laws and the election of officials are some of the more tangible examples of construction, it is not
something that only happens palpably. Through our discussions, writings, social media posts, and consumption of
media, we play a part in transforming or re-constructing the national narrative into one that more closely represents
modern-day America. Here in this journal, you will find our contribution to this latter form of construction. We do
not have hardhats, power tools, or little yellow children’s characters, but we have our pens, research, and intellectual
curiosity. We hope you enjoy reading it as much as we enjoyed writing it, and that you will join in our construction
efforts through your dialogue and political participation today and every day.

Sincerely,

Taylor Tutin

Senior Editor,
Journal on Constitutional Vol. 4

Journal on Constitutional Democracy 9

10 Kinder Institute

The Machinery of Government

Journal on Constitutional Democracy 11

Government of the People(?), by
the People(?), for the People(?)

by Taylor Tutin

12 Kinder Institute

Donald John Trump: 62,984,825 popular votes, Alexander Hamilton’s “Federalist Paper 68: The Mode
306 electoral college votes.1 of Electing the President,” published in 1778. Given
the likelihood that this cycle of discrepancy followed
Hillary Rodham Clinton: 65,853,516 popular by outrage repeats itself, as we consider presidential
votes, 232 electoral college votes.2 elections in the years to come, we must ask ourselves:
Is the Electoral College accomplishing its original
The 2016 presidential election was arguably one of intentions? Is there a need to reform it? And if there
the most controversial races in modern times, but its is, can we reform it in today’s hyper-partisan society?
boiling point was the fact that the electoral college,
and not the popular vote, ultimately declared Donald If a judgment on the usefulness of the Electoral College
Trump President of the United States. As George is to be made, we must first identify what the intended
Takei tweeted, “The people elected Hillary, the system purposes of the College were. This essay will evaluate
elected Donald.”3 two sources that provide insight into the reasoning
behind it: James Madison’s Notes on the Constitutional
Rutherford B. Hayes: 4,034,311 popular votes, Convention and Hamilton’s “Federalist 68.” Foundational
185 electoral college votes.4 arguments for and against the Electoral College will
be examined, in addition to alternative methods of
Samuel J. Tilden: 4,288,546 popular votes, selecting the president that were proposed at the
184 electoral college votes.5 Constitutional Convention and the original and revised
models of the Electoral College. Then, instances of the
“…Rutherford B. Hays of Ohio[:]…In Full Possession Electoral College being controversial will be examined,
of the Office Mr. Tilden was Elected, Consummation with discussion of reforms that were proposed in
of the Conspiracy to Steal the Presidency” reaction to these controversies serving as the focal
point of this analysis. Lastly, this essay will evaluate the
As the 1876 Hayes/Tilden results cited above modern-day usage of the Electoral College, ultimately
demonstrate, the source of the outrage that emerged coming to the conclusions that the Electoral College is
after the 2016 election was not new; in addition to not serving some of its most vital original purposes and
2016 and 1876, discrepancies between the popular and that reform of the system to better fit contemporary
electoral votes arose in 1824, 1888, and 2000.6 The America is warranted.
outage was not new either. Each time the outcome
of an election has been decided by electors instead The Creation
of citizens, the American people have publicly, often
passionately questioned whether their voices are being At the Constitutional Convention, determining how to
represented in the election of their president (whether, pick the president was no insignificant task.The framers
to use the terms of 1876, the Electoral College has were understandably weary of a strong executive branch
“conspired to steal the presidency” from them). In after recently declaring their independence from what
fact, these questions concerning the purpose of and they considered to be a tyrannical monarch. As a
need for an Electoral College date all the way back to result, much debate took place about how to choose
“His Excellency,” the President of the United States
of America, and the proposed methods were vastly
different in terms of who wielded electoral power.
Elbridge Gerry, a representative from the colony of
Massachusetts, and later the 5th Vice President of the
United States, proposed to create a system to elect the
executive branch by a vote of the “Executives of the
States,”7 meaning that all governors would convene
to pick the president. Gerry’s motion was struck
down because of the potential that this process would

Journal on Constitutional Democracy 13

“lessen the independence of the Executive”8 and Continuing in this line of thinking, Morris went on to
create “inexpediency” within the mode of electing the argue that “[a]ppointments made by numerous bodies
president.9 Without dismissing the valid functional are always worse than those made by single responsible
concern surrounding the difficulty of gathering every individuals or by the people at large.”13 In other words,
governor in one place to vote for a president, the Morris believed that a popular vote was the best
real problem was the potential for corruption that option for choosing the president, if the goals were to
might arise from presidential candidates being more prevent corruption from overtaking the office and to
prone to serve the governors’ political interests than keep the branches of government separate and equal.
the interests of the people. Gerry’s was not the only The objections to this amendment were twofold. One
proposal that involved elected officials choosing the concern regarded the people’s ability to appropriately
president, and the others faced similar fates. Later judge the qualifications of the candidates, with this
in the timeline of the convention, the voting body proposition being compared to a “trial of colors to a
considered a system where the “National Legislature” blind man.”14 Another regarded how investing “citizens
(the Senate and House of Representatives) would elect of the United States” with voting power would
the president. Gouverneur Morris, a delegate from disproportionately enhance larger states’ ability to
New York, responded with a motion to strike “National elect a candidate from within their borders. Morris’
Legislature” and replace it in the Constitution with amendment eventually failed on the grounds of these
“citizens of the United States,”10 arguing that an objections, and it was following this that the Electoral
election by the National Legislature would be “the College was proposed.
work of intrigue, of cabal, and of faction.”11 As was
the case in discussions regarding governors choosing Later in the Convention, the “Committee on
the president, Morris’ concern, shared by others in Postponed Matters” was created to address issues that
the body, was that this proposal would “lessen that remained unresolved, among them the method of
independence of the Executive” by making him choosing the president. The Committee had extensive
beholden to the interests of the legislature at the discussion about the Electoral College and eventually
expense of the interests of the people.12 settled on a system where the president was chosen by
electors who would be divided amongst the states based
on their number of allotted Congressmen and chosen
at the discretion of the state legislatures. Each elector
would be permitted two votes, and the candidate with
the highest number of votes would become president
and the candidate with the second highest number,
vice president (with a tie for the presidency broken
by the House of Representatives and a tie for the vice
presidency broken by the Senate). This idea was able to
pass the Committee, as it was considered a compromise
between letting elected officials (i.e., governors or
members of the federal legislature) choose the president
and letting non-government entities (i.e., the people)
do so. In this system, the legislative branch would only
be involved when it was absolutely necessary, and the
selection of the president by non-government electors
would maintain the independency of the executive
office, thereby preventing any potential corruption
and preserving executive accountability to the people’s
interests. Moreover, the apportionment of electoral
votes according to total Congressional seat allotment

14 Kinder Institute

allowed the smaller states to have a reasonable amount President will never fall to the lot of any man who is
of influence relative to their population, as the Senate not in an eminent degree endowed with the requisite
guaranteed each state at least two electors in addition qualifications.”18 Tacitly equating the general public’s
to the minimum one based on House seats. ignorance with their susceptibility to tyrannical urges,
Hamilton suggests that the intellectual qualifications
American citizens shared the delegates’ concerns
regarding the vesting of power in a central executive, and capacities of the electors will act as a natural check
and the Constitution did not eradicate these fears upon on these urges and thus endow elections with moral
initial release. In an attempt to defend the Electoral certainty in so far as, under the Electoral College, there
College and assure the public that the provisions exists no possibility that an unqualified candidate will
in place for electing the president would prevent a be voted in by an uneducated popular electorate. His
tyrant from entering office, Alexander Hamilton wrote points seemed to resonate with the elite who wanted to
“Federalist Paper 68.” In it, Hamilton argues that the prevent tyranny in any form and in any way possible,
method laid out in the Constitution was preferable to while also preserving their station.
both a direct popular vote, as Morris would have had
it, and to giving elected officials the power to choose Seventeen years after its original conception, the
the executive, as Gerry and others proposed, because Electoral College underwent some big changes as
electors would be unsusceptible to the worst urges of a result of the election of 1800, in which Thomas
both of these constituencies (the general public and Jefferson tied with Aaron Burr. Under the procedure
government officials). outlined in the Constitution, each elector was to cast
two votes with no distinction between a vote for a
To establish the legitimacy of the electors, and presidential candidate and a vote for a vice-presidential
to address longstanding concerns about inter- candidate. If two candidates tied with a number that
governmental corruption, Hamilton mentions that was equal to the majority of electoral votes, the vote
“[n]o senator, representative, or other person holding would go to the House of Representatives, where
a place of trust or profit under the United States, can one of the two would be chosen president. If no one
be of the number of the electors.”15 Echoing parts of received a majority of the electoral votes, however, the
Morris’ argument, Hamilton reasons that because House of Representatives could vote for any of the five
electors are not and cannot be government office candidates receiving the most votes. In 1800, Thomas
holders, they will have no incentive to apply political Jefferson ran as a Democratic-Republican, with the
pressure or pursue political spoils (i.e., public trust and intent of Aaron Burr being his vice president. However,
private profit will not come into conflict). However, since votes were not specified between the offices, the
in a departure from Morris, Hamilton also explains electors from the Democratic-Republican party could
that these electors will not be average citizens but
instead will be drawn from the “men most capable of
analyzing the qualities adapted to the station”16 and
“most likely to have the information discernment
requisite to such complicated investigations”17 due to
their political involvement in their respective states. In
this, Hamilton implies that those individuals chosen
to be electors will be best equipped to suppress the
possibility of corruption precisely because they will
lack the political ignorance of the common citizen.
Hamilton expands on this idea of electors’ need for
discernment and political knowledge, and the fact
that common citizens inherently do not possess these
faculties, by stating that “the [Constitution’s] process
of election affords a moral certainty, that the office of

Journal on Constitutional Democracy 15

only vote once for Jefferson and once for Burr, meaning Interestingly, the most significant attempts to reform
that a tie ensued every single time ballots were cast. the Electoral College have come from presidents that
In response, the 12th Amendment was passed, which won both the popular and Electoral College vote,
required electors to cast one vote for president and with large pushes occurring during the Nixon and
one vote for vice president (as opposed to the previous Carter administrations in particular. The presidential
system where the vice president was merely the runner election of 1968 resulted in Richard Nixon winning
up in the presidential election). The 12th Amendment 110 more electoral votes than Hubert Humphrey, less
also addressed concerns that the president and vice of a landslide than it might seem, given that Nixon won
president might not cooperate well if they were from only .6% more of the popular vote than his opponent.
different parties and/or that the vice president might In response to this election, Representative Emanuel
bristle at taking orders from someone he had just lost Celler (D-NY) proposed House Joint Resolution 681
an election to. The Electoral College was thus proven to abolish the Electoral College and require that a
fallible in the 1800s, but would the 12th Amendment presidential candidate only win more popular votes
be enough to prevent further complications? than the other candidate(s), with the stipulation that
the winner needed at least 40% of the popular vote
The Hesitation to avoid a runoff election.19 The resolution passed the
House with flying colors, as representatives thought
As mentioned previously, there have been five Celler’s method the most direct and most democratic
contentious elections in history in which the Electoral means of choosing a president. The resolution even
College vote produced a different winner than the saw support from President Nixon, who stated that
popular vote. The discrepancy has not always been his “personal feeling [is that] the candidate who wins
subtle, either, given that most states have a “winner take the most popular votes should become President.”20
all” system of assigning electors. For example, in the However, members of the Senate were concerned
election of 1876, which pitted Samuel Tilden against that the plurality system would take political influence
Rutherford B. Hayes, Tilden took over three percent away from the Southern states, so the legislation was
more of the popular vote than Hayes (over 250,000 filibustered and died on the Senate floor.

votes in total), but Hayes ended up winning by a single While HJR 681 went further than any initiative to
electoral vote, marking the first and only election in abolish the Electoral College, it was not the final
history in which the runner up won an absolute majority time that reform had strong political support. Within
of the vote rather than just a plurality. It is elections like the first four months of his presidency, Jimmy Carter
these that have made Americans question the Electoral issued his 1977 “Election Reform Message to the
College time and again. And the common critique that Congress,” in which he explicitly recommended that
the public will is going unheeded has not been without we constitutionally amend the system of picking the
response, with attempts at reform coming from both president to eliminate the use of electors in favor of a
sides of the aisle. popular vote. His reasoning for this bold suggestion,
which echoed the public’s repeated outcry against the
Electoral College, as well as contradicted Hamilton’s
logic for why the Electoral College was necessary, was
simple: so that America could “ensure that the candidate
chosen by the voters actually becomes the President.”21
In the message, Carter also states that he will “not be
proposing a specific direct election amendment” as he
“prefer[s] to allow the Congress to proceed with its
work without the interruption of a new proposal.”22 As
was the case with Celler’s Resolution, while this message
did not resonate enough to successfully inspire reform,

16 Kinder Institute

it was still a testament both to the amplitude of the The Conversation
concerns surrounding the Electoral College and how
these concerns engaged with, and ultimately dismissed, Is this modern ideological shift away from the Electoral
foundational justifications for it. College warranted? Or conversely, and perhaps more
appropriately, do we, as Carter, Nixon, and others
The reforms in the Nixon and Carter administrations suggest, no longer need the type of electoral protection
specifically demonstrate a shift in how elected officials from the tyranny of the people that the Electoral
thought about the qualifications of the American voter College was designed to provide (to say nothing of
and the legitimacy of the people’s electoral voice or whether we ever needed it in the first place)? These
will, relative to the late eighteenth and early nineteenth questions reflect the widespread belief that the
centuries. By stating their preference that the American Electoral College is outdated and unnecessary, as well
people choose the president, Nixon, Carter, Celler, and as unjust. But to truly evaluate the Electoral College
others openly conceded that they considered the people in relation to its original purpose, we also have to ask
to be a body that could ensure the integrity of the whether it is actually serving this purpose of checking
office, a stark contrast to Hamilton’s suggestion that the the public will. To what degree, that is, does the
public would inevitably introduce moral uncertainty modern-day system encourage and enable Electoral
to elections. The reasons for this shift in attitude, College members to defect from the popular vote in
from Hamilton’s view that the American people need instances when they believe their state has chosen an
to be checked to Nixon and Carter’s view that the unqualified, potentially destructive candidate?
American people themselves act as an efficacious
check, are unclear. It could be due to the same trends When Electoral College members vote in a way that is
in democratization that led Americans to amend the inconsistent with the popular vote in their state, they
Constitution to allow for the direct election, rather than are labeled “faithless,” and faithless electors are virtually
appointment, of Senators. It could also be due to greater unheard of in modern presidential elections. In 2016,
access to public K-12 and higher education. Or it could there were only seven successful faithless electors, and
be due to the fact that news was being disseminated this small number was the largest ever in a presidential
more comprehensively, efficiently, and quickly than in election.23 (Of note: All seven electors cast their votes
for candidates who were not officially on the ballot.24)
Hamilton’s time, when political information and the More importantly here, though, is that not every elector
knowledge and opinion gleaned from it was largely the who tries to vote faithlessly can succeed in doing so, as
privilege of the elite. Which is to say that the causes many states have safeguards in place to prevent electors
were likely multiple and complex, but the reality was from defying the popular vote. Depending on the state,
that many legislators were joining Americans in the there may be penalties or vote invalidation measures in
belief that the Electoral College no longer ought to place if the elector does not follow the public will. Going
serve as a necessary check upon the people. one step further, the Faithful Presidential Electors Act,
already adopted by Montana, Minnesota, Nevada,
Nebraska, and Indiana, allows for the replacement
of any elector who does not vote in lockstep with the
people, effectively ridding each state of the potential
for faithless electors.25 More states every year are taking
similar steps, whether by legislating against faithless
electors or by continuing to stigmatize them, as the mere
branding of faithless electors as ‘faithless’ derogates their
choice. But the larger point is this: If these electors are
not permitted and encouraged to faithlessly act as a
check on the tendency toward tyranny of the American
people—and let us be clear: they are not—it seems as if
the original purpose of the Electoral College has been

Journal on Constitutional Democracy 17

rendered moot.26 1“Presidential Results.” CNN. (2016). http://www.cnn.
com/election/results/president
So, where do we go from here, a point in history when 2Ibid
the people have deemed the original purpose of the 3Takei, George. Personal Tweet. Twitter. 9 November
Electoral College void and the states are obstructing 2016. https://twitter.com/georgetakei/status/7964038
electors from acting in accordance with this purpose? 61795831808?lang=en
In order to actually abolish the Electoral College, a 4“Electoral College Box Scores 1799-1996.” Historical
constitutional amendment would be required, and Election Results. National Archives and Records
considering that the provision does still benefit smaller Administration. https://www.archives.gov/federal-
states, it seems unlikely that they would go along register/electoral-college/scores.html
with this measure of reform. Moreover, given that a 5Ibid
constitutional amendment requires a three-fourths 6“Historical Election Results.” Historical Election
approval from the House and the Senate, or approval Results. National Archives and Records Administration.
from a constitutional convention called for by two- https://www.archives.gov/federal-register/electoral-
thirds of state legislatures, even if three-fourths of college/historical.html
the American public was for eliminating the Electoral 7Madison, James, posted by Lloyd, Gordon.
College, this opinion would likely not translate into “Debates in the Federal Convention of 1787:
legislative priority. Hyper-partisanship also seems to Saturday, June 9.” TeachingAmericanHistory.org.
be a mitigating factor on the path to abolishing the http://teachingamericanhistory.org/convention/
College, as collaboration across the aisle is becoming debates/0609-2/
rare on issues as large and divisive as this. It thus seems 8Ibid
much more likely that states will continue on their 9Ibid
current path, revising their Electoral College methods 10Madison, James, posted by Lloyd, Gordon.
at a state level instead of pushing reform at the federal “Debates in the Federal Convention of 1787:
level. And the further states veer away from a system Tuesday, July 17.” TeachingAmericanHistory.org.
that allows the Electoral College to act as a check on http://teachingamericanhistory.org/convention/
the American public, the further the Electoral College debates/0717-2/
itself veers from the compromises that led to it, a 11Ibid.
trajectory that continues to sidestep the popular call 12Madison, James, posted by Lloyd, Gordon.
for a system that fully acknowledges the primacy of the “Debates in the Federal Convention of 1787:
public will. Saturday, June 9.” TeachingAmericanHistory.org.
http://teachingamericanhistory.org/convention/
debates/0609-2/
13Madison, James, posted by Lloyd, Gordon.
“Debates in the Federal Convention of 1787:
Tuesday, July 17.” TeachingAmericanHistory.org.
http://teachingamericanhistory.org/convention/
debates/0717-2/
14Ibid.
15Hamilton, Alexander. “The Mode of Electing the
President.” 14 March 1788. The Avalon Project. Yale
Law School Lillian Goldman Law Library. http://
avalon.law.yale.edu/18th_century/fed68.asp
16Ibid
17Ibid
18Ibid

18 Kinder Institute

19“Past Attempts at Reform.” FairVote.org http://www.
fairvote.org/past_attempts_at_reform
20Nixon, Richard. “58-Special Message to the
Congress on Electoral Reform.” 20 February 1969.
The American Presidency Project. The University of
California Santa Barbara.
h t t p : / / w w w. p r e s i d e n c y. u c s b . e d u / w s / i n d e x .
php?pid=2400
21Carter, Jimmy. “Election Reform Message to
the Congress.” 22 March 1977. The American
Presidency Project. The University of California Santa
Barbara. http://www.presidency.ucsb.edu/ws/index.
php?pid=7218
22Ibid
23Cheney, Kyle. “Electoral College sees record-
breaking defections.” POLITICO. 19 December 2016.
https://www.politico.com/story/2016/12/electoral-
college-electors-232836
24Ibid
25The National Conference of Commissioners
on Uniform State Laws. “Faithful Presidential
Electors Act.” Uniform Law Commission. http://
www.uniformlaws.org/Act.aspx?title=Faithful%20
Presidential%20Electors%20Act
26While the Electoral College is not serving its original
purpose of acting as a check on the popular vote, it
does give a voice to smaller states through its system
of apportionment. Smaller states are guaranteed at
least three Electoral College votes regardless of their
populations, even when the population to electoral
vote ratio is much higher in smaller states than it is in
larger states.

Journal on Constitutional Democracy 19

Defining Political Corruption in the
Founding Era and the Modern Era

by Riley Messer

20 Kinder Institute

Outrage occupied the minds of Cambridge citizens corrupt activity is a pervasive sentiment across time.
gathered on the humid evening of June 2, 1856. A More recently, the American public witnessed the case
formal report of the town hall meeting explained that, of New Jersey Senator Robert Menendez unfold in the
courts. Over an extended period of time, and as early
[f]inding Lyceum Hall wholly insufficient to as 2006, Senator Menendez received lavish gifts from
accommodate the crowd of people, the meeting wealthy eye doctor, Salomon Melgen. In an April 2017
adjourned to Rev. Dr. Albro’s church, which in editorial, Washington Post Journalist Amber Phillips
a few moments was completely filled with an highlighted the nature of their relationship as follows:
assemblage of the highest respectability.1
Menendez took 19 free rides on Melgen’s private
Once the residents settled, a concerned attorney — jets to luxury resorts around the world, sometimes
Mr. Green — expressed the impassioned sentiments of bringing guests…Over a period of four years,
the room: “How profound is the feeling which these Menendez held several meetings with U.S. health
few words excite! How intense and wide-spread, and officials to help Melgen settle an $8.9 million
all but universal is the sensation produced among us, Medicare payment dispute…Melgen made more
— as witnessed by this vast assembly, — produced than $600,000 in campaign donations to super
throughout this whole community!”2 PACs to get Menendez reelected in 2012…8

Each of these profound utterances of feeling was Responding to the public outcry that this editorial
accompanied by symphonies of cheers. Emotions prompted, Senator Menendez and Dr. Melgen
in Massachusetts had heightened after an infamous held fast to their claim that the lavish vacations and
incident within the American legislature, described that political activities had no direct connection, and
night in a speech by Mr. Huntington as “evil in all [its] the Justice Department ultimately dropped the case
ramifications”3 and by Mr. Green as “brutal, murderous against Menendez and Melgen in January of 2018.9
and cowardly.”4 What was the act that stirred up such While the verdict was frustrating to Americans, who
fierce opposition? Referred to by historians as the understandably thought the Senator’s actions corrupt,
day of “The Caning of Charles Sumner,”5 May 22, the determination that he was operating within the
1856, marked a moment of unprecedented, violent scope of the law was technically consistent with the
misconduct in Congress. Ongoing tensions between legal definition of corruption, which maintains high
pro-slavery and abolitionist representatives reached standards for proving quid pro quo. This contemporary
a boiling point when South Carolinian Congressman example of unpunished misconduct by public officials,
Preston Smith Brooks approached Senator Sumner although much different from the violent caning
of Massachusetts from behind and smashed him in of Charles Sumner, illustrates a similar disconnect
the head with a metal-topped cane. Sumner fell to between the public’s perception and the law’s definition
the ground, unconscious and covered in blood from
serious wounds exposing his skull. From the sheer
force of the hits, the cane had “shattered from the
attack, and Brooks pocketed its gold head, declining
the Senate page’s offer to retrieve the fragments from
the floor.”6 Brooks, clearly unashamed of his actions,
left the premises to face few consequences for the harsh
ambush. In fact, a resolution to remove Brooks from the
House failed,7 and the frustrating lack of institutions in
place to penalize him understandably generated anger
among Northerners.

The powerlessness felt by constituencies when public
officials evade consequences for misconduct and

Journal on Constitutional Democracy 21

of corruption, the latter of which this essay will trace eyes, inherent to the nature of man, a condition, as he
back to the era in which the U.S. Constitution was notes in “Federalist 51,” that makes despotic conduct
drafted and debated. inevitable at all levels of society:

Corruption, as Defined by James Madison It may be a reflection on human nature, that such
devices should be necessary to control the abuses
As a delegate to the Constitutional Convention of of government. But what is government itself, but
1787, one of three authors of the Federalist Papers, and, the greatest of all reflections on human nature?
eventually, the fourth President of the United States, If men were angels, no government would be
James Madison dedicated a great portion of his life necessary. If angels were to govern men, neither
to expanding the sphere of his political influence. external nor internal controls on government
He was particularly keen on instilling his political would be necessary. In framing a government
philosophy within the American system of laws. which is to be administered by men over men, the
The Virginia statesman was remarkably successful great difficulty lies in this: you must first enable
in this endeavor, as seen in how his Federalist essays the government to control the governed; and in
continue to influence American constitutional law in the next place oblige it to control itself.11
the modern era. Of particular interest here, Madison
spelled out a conceptually narrow interpretation of Importantly, Madison notes here that elected officials
corruption within the Federalist Papers that constituted and, in turn, governing bodies are not immune to
more lenient institutions for public officials to work the self-interested urges that exist within all people,
within. Two landmark Supreme Court corruption a perception of human nature that political scientist
cases from the past decade, Skilling v. United States Mark Warren explains in terms of how “individuals
(2010) and McDonnell v. United States (2016), make naturally pursue their own interests, even against the
the abiding relevance of this interpretation especially public interest.”12 In fact, Madison goes one step further
clear. However, fully understanding Madison’s views and concedes that republican government creates the
on corruption first requires a broader examination of opportunity for publicly destructive, self-interested
his political philosophy and the federalist system of behavior by its officials. Again, from “Federalist 10”:
government, largely intact today, that he publicly and “Men of factious tempers, of local prejudices, or of
persuasively espoused. sinister designs, may, by intrigue, by corruption, or by
other means, first obtain the suffrages, and then betray
In sketching out this federalist system, Madison was the interests, of the people.”13 The Constitution was
centrally focused on preventing corruption, and for drafted with this fear of the inevitability of corrupt
him, one of the crucial mechanisms for doing so was conduct in mind.
a strong central government. Still, within this very
basic and fundamental federalist construct, a dilemma As their name
nonetheless arises: how is it possible to maintain an
operationally-powerful federal government while also indicates, the
preventing that government from abusing its authority?
The fears of tyranny or corruption of influence bound Anti-Federalists
up in this dilemma deeply concerned Federalists and
Anti-Federalists alike. The federalist perspective disagreed
concerning the origin of this fear is embodied by the
cynical perspective of human beings that Madison heartily with the
famously voices in “Federalist 10.” “The inference to
which we are brought,” he writes, “is, that the causes Federalist-drafted
of faction cannot be removed, and that relief is only
to be sought in the means of controlling its effects.”10 Constitution.
Factional, power-seeking behaviors are, in Madison’s
Centinel, one in a

stable of anonymous

Anti-Federalist

authors, articulates

two primary

objections to the

federalist system in

22 Kinder Institute

his Letter I: “Thus we see, the house of representatives, For Madison, factions that consist of less than a
are on the part of the people to balance the senate, majority can be easily defeated in elections, thus
who I suppose will be composed of the better sort, the preserving the diverse and broad interests that Anti-
well born, etc.”14 First, Centinel implies here that the Federalists thought the system naturally imperiled.
uniform and elite nature of the Senate, composed Useful were elections, but not always, as Madison also
only of the “well born,” would lead to aristocracy and highlights in this passage their deficiencies. Specifically,
thus encourage increased incidence of nepotism and “sinister” factions that consist of a majority of the
inequality; he believed, that is, that the Senate would public would not be stopped through regular votes. For
only serve the needs of the population that most Anti-Federalists, this meant that, in Madison’s own
reflected its own composition: the wealthy, “better eyes, direct elections for the Senate did not adequately
sort.” In addition, he teases his second opposition to address the threat to “public good” and “private rights”
the Constitution here: that the system in place did not that majority factions posed. The question Madison
provide for a counter-balancing force strong enough had to address, then, is this: what is the right way
to curb this form corruption and effectively act on to prevent these malicious majority factions from
the “part of the people.” He writes: “The number of executing their violence?
representatives appears to be too few…to prevent
corruption and undue influence, in the exercise of such Madison’s answer was to embrace internal controls on
great power.”15With so few individuals representing the government, allowing for competing interests to self-
entire population of the United States, Anti-Federalists regulate. As he explains in “Federalist 51”: “This policy
believed that the House could not accurately reflect the of supplying, by opposite and rival interests, the defect
broad and diverse interests of the population, let alone of better motives, might be traced through the whole
sufficiently safeguard these interests against “undue system of human affairs, private as well as public.”17
influence” in the elite branch of Congress. Checks and balances – both among and within the
three branches of government, and deriving from the
In “Federalist 10,” Madison provides his counter- sheer volume of the interests expressed by the people
argument to the Anti-Federalists. Responding to their – could serve to mitigate self-interested activity in the
related criticism of the structure of Senate elections, public sphere in a similar manner to how the private
in which representatives were not directly elected operations of competitive markets curtail greedy
but instead appointed by specially-selected electors, instincts. Madison envisioned that these structural
Madison argues that democratic elections can be a safeguards would serve as the ultimate panacea to
useful mechanism for preventing despotism: corruption and despotism without having to eliminate
the natural, human impulses underlying either: the
If a faction consists of less than a majority, relief separation of powers ensured that each of the three
is supplied by the republican principle, which branches could check the self-interested behavior
enables the majority to defeat its sinister views of the others with self-interested behavior of their own.
by regular vote. It may clog the administration, Madison reiterates this idea about the function of
it may convulse the society; but it will be unable checks and balances and separation of power later in
to execute and mask its violence under the forms the essay:
of the Constitution. When a majority is included
in a faction, the form of popular government, on But the great security against a gradual
the other hand, enables it to sacrifice to its ruling concentration of the several powers in the
passion or interest both the public good and the same department, consists in giving to those
rights of other citizens. To secure the public good who administer each department the necessary
and private rights against the danger of such a constitutional means and personal motives to
faction, and at the same time to preserve the spirit resist encroachments of the others. The provision
and the form of popular government, is then the for defense must in this, as in all other cases, be
great object to which our inquiries are directed.16 made commensurate to the danger of attack.
Ambition must be made to counteract ambition.18

Journal on Constitutional Democracy 23

For Madison, the solution to corruption is embedded well happen that the public voice, pronounced by the
in the American Constitution, thus eliminating the representatives of the people, will be more consonant
necessity of having to construct other legal safeguards to the public good than if pronounced by the people
to curb the abuse of public office: again, self-interested themselves.”20 Here, Madison claims that the members
behaviors would simply cancel one another out. of the natural aristocracy know better than the public
itself what is best for the public good. And because
The Anti-Federalists found Madison’s perspective they possess the clearest vision of the public good,
troubling. Centinel argues in Letter I that the Madison believed that elite public officials drawn from
newly proposed Constitution “would be in practice this natural aristocracy should be given a politically
a permanent ARISTOCRACY”19 and that, because wide set of boundaries to pursue – that they should
of this, Madison’s conceptualized competition of face few restrictions in pursuing – actions that they
interests would not be a competition at all. Rather than feel would benefit society, even if these actions might
“ambition” being made to “counteract ambition,” the on the surface seem corrupt. Political scientists David
aristocratic class of elites in government would collude Redlawsk and James McCann captured Madison’s
to advance the interests of the elite, and the elite only. approach to defining corruption in their co-authored
And going back to Centinel’s previously cited argument, 2005 article in Political Behavior:
because the House did not provide the general public
with an adequate way to represent themselves, the To Madison and the other liberal founders,
rest of the population would have no mechanism for corruption occurred when government officials
introducing their interests into competition with the overstepped the formally recognized boundaries of
interests of the elite. their public office. Within the legally constituted
For his part, Madison believed that the representation confines of these offices, however, favoritism was
of elite interests was actually a positive feature of not to be condemned. Indeed, it was to be expected
government. He writes, for example, how “it may and even lauded; under the celebrated logic of
Federalist 51, self-interested actors responding
24 Kinder Institute to factional pressures would check and balance
each other.21

Hence, Madison’s definition of corrupt activity was
considerably narrower – i.e., considerably more
permissive of seemingly corrupt activity – than that
of the Anti-Federalists, and the boundaries he set
for public officials were far fewer. Elitism, nepotism,
and other activities that may appear corrupt to the
general public were all acceptable to Madison. And as
was suggested earlier, this Madisonian conception of
corruption is not exclusive to the Founding Era. In fact,
subsequent analysis will reveal that Madison’s narrow
interpretation of corruption appears to be similar
to that interpretation which the Supreme Court has
embraced in recent decisions.

Corruption, as Defined by the Supreme
Court Today

In 2015, three in four Americans perceived corruption
as widespread in government, and this proportion of
Americans has steadily grown since.22 In addition,
the laws restraining public officials have experienced

significant changes in recent years. The Supreme venue, arguing that a fair trial had become impossible
Court of the United States has paid particular attention in Houston. The District Court denied the motion,
to 18 U.S.C. §1346 and 18 U.S.C. §201 – more leading Skilling to challenge his prosecution on two
commonly known as the honest-services statute and counts: the bias of the jury and the constitutionality of
the federal bribery statute. Through two landmark §1346, the honest-services statute. After review by the
decisions, Skilling v. United States (2010) and McDonnell Supreme Court, Justice Ginsburg delivered the final
v. United States (2016), the Supreme Court significantly opinion. Regarding Skilling’s allegations of an unfair
narrowed the scope of each statute, which is to say trial, the Court held that he “did not establish that a
loosened the restrictions that public officials face, presumption of juror prejudice arose or that actual bias
making James Madison’s influence on the present day infected the jury that tried him.”26 More importantly,
readily apparent. the Court used the Skilling ruling as an opportunity
to set a new precedent for interpretation of §1346:
In order to Ҥ1346 covers only bribery and kickback schemes.
understand the Because Skilling’s alleged misconduct entailed no
significance of the bribe or kickback, it does not fall within §1346’s
Skilling decision, a proscription.”27 Within the context of this essay’s
summation of the argument, although Jeffrey Skilling was a private
case is necessary. individual and not a public official, the implications
The case brief of the Supreme Court’s decision still impacted public
from the United officials in a significant manner by transforming §1346,
States Department a law that had previously constrained the conduct of
of Justice outlines public officials due to its restricting their interactions
the facts as with donors or other private interests. Specifically, by
follows: “Between issuing a far narrower interpretation of what conduct is
1999 and the end deemed unacceptable under the statute, the Court gave
of 2001, petitioner [Skilling] orchestrated a massive public officials much more leeway to behave as they
scheme to deceive Enron’s shareholders, federal pleased – as long as that behavior did not constitute
regulators, and the investing public about the company’s direct bribes or kickbacks.
financial condition and performance.”23 Jeffrey Skilling
was the president and chief operating officer of Enron Legal scholars overwhelmingly embraced the
Corporation; and importantly, his compensation was perspective that the Skilling decision would make
directly related to the condition of the company’s the prosecution of public officials and top executives,
stock, as uncovered in the trial.24 Due to this fact, it was alike, much more difficult in cases of dishonest activity.
very obviously in Skilling’s personal or private interest Former public corruption prosecutor Patrick Collins
to drive up Enron share prices despite revenues from testified to news media outlets that:
the corporation being unable to sustain a higher price-
to-earnings ratio. As the Justice Department stated: [t]he court has clearly raised the bar…The easy
“Petitioner therefore sought to increase the P/E case is the official who takes $10,000 from a
[price-to-earnings] ratio by convincing the market that contractor and then awards him a contract. But
Enron was poised for steady and significant growth.”25 what about the guy who secretly goes on a vacation
paid for by the contractor, and then several years
As a result of Skilling’s deceptive scheme, the later awards him a big contract? This is a gray area
government began investigating Enron, with the now if you can’t show a direct connection.28
ultimate consequence of indictments for him and
two other high-ranking executives in the corporation. In another example, Noah Bookbinder, executive
Due to the bankruptcy of Enron and the expansive director of Citizens for Responsibility and Ethics
charges against Skilling, the case became high-profile, in Washington, told the New York Times that Skilling
and Skilling’s defense team moved for a change of “was likely to have a major impact because elected

Journal on Constitutional Democracy 25

officials involved in wrongdoing often did not have Madisonian framework for defining corruption that
the power to personally deliver the favor that had been was examined in the previous section. And as a result,
requested.”29 In other words, it was already incredibly public officials were, after Skilling, permitted much
difficult to show the direct connection between more freedom to act without fear of prosecution for
gifts and political activities, and with the newly and dishonest services fraud, as the standard for what
more narrowly interpreted honest-services statute, constitutes dishonest service was significantly narrowed
there was now even less room for nuance in cases of to include two, and only two, actions.
possible corruption.
Six years after Skilling v. United States was decided,
As Justice Ginsberg makes clear in her opinion in former Virginia Governor Robert McDonnell was
Skilling, the Supreme Court very much intended for its indicted by the federal government for suspected
ruling to have this narrowing effect: corruption, and the Court’s re-energized interest in
narrowing the definition of corruption was put to the
In light of the relative infrequency of conflict-of- test. The charges, as outlined in McDonnell v. United
interest prosecutions in comparison to bribery States, were related to,
and kickback charges, and the intercircuit
inconsistencies they produced, we conclude that …the acceptance of $175,000 in loans, gifts, and
a reasonable limiting construction of §1346 must other benefits from Virginia businessman Jonnie
exclude this amorphous category of cases. Further Williams, while Governor McDonnell was in
dispelling doubt on this point is the familiar office. Williams was the chief executive officer of
principle that ‘ambiguity concerning the ambit Star Scientific, a Virginia-based company that had
of criminal statuses should be resolved in favor developed Anatabloc, a nutritional supplement
of lenity.’30 made from anatabine, a compound found in
tobacco. Star Scientific hoped that Virginia’s
In contrast, and to fully grasp the consequences public universities would perform research studies
of narrowing the interpretation of §1346, the past on anatabine, and Williams wanted Governor
utilization of the honest-services statute had been McDonnell’s assistance in obtaining those studies.32
much more broad:
In order to convict McDonnell under 18 U.S.C. §201,
Enacted in 1872, the original mail-fraud provision, the federal bribery statute, prosecutors had the burden
the predecessor of the modern-day mail- and of proving that the Virginia governor committed,
wire-fraud laws, proscribed, without further or agreed to commit, an official act in exchange for
elaboration, use of the mails to advance ‘any monetary compensation and gifts. Per the terms of the
scheme or artifice to defraud.’ In 1909, Congress statute: “the term ‘official act’ means any decision or
amended the statute to prohibit, as it does action on any question, matter, cause, suit, proceeding
today, ‘any scheme or artifice to defraud, or for or controversy, which may at any time be pending, or
obtaining money or property by means of false or
fraudulent pretenses, representations, or promises.
Emphasizing Congress’ disjunctive phrasing, the
Courts of Appeals, one after the other, interpreted
the term ‘scheme or artifice to defraud’ to include
deprivations not only of money or property, but
also of intangible rights.31

In a clear rejection of this more inclusive or expansive
interpretation of what is encompassed by “unlawful
activities,” the Supreme Court abandoned the original
interpretation of the honest-services statute in favor
of one that distinctly resembles the less restrictive

26 Kinder Institute

which may by law be brought before any public official, as it did in Skilling, on narrowing its interpretation of
in such official’s official capacity, or in such official’s what actions could be legally considered and prosecuted
place of trust or profit.”33 as corrupt.

The language of 18 U.S.C. §201 appears to have been The theoretical justification for Chief Justice Roberts’
drafted with the purpose of “official act” encompassing opinion has clearly Madisonian roots, as Roberts wrote:
a wide scope of activities, making the parallel to the
nineteenth-century application of the honest-services …conscientious public officials arrange meetings
statute clear: both statutes were originally created to be for constituents, contact other officials on their
both extensive and nuanced in what could be defined behalf, and include them in events all the time.
as unlawfully corrupt behavior and, in this, harder on The basic compact underlying representative
corruption. In fact, the federal government argued in government assumes that public officials will hear
McDonnell that, from their constituents and act appropriately on
their concerns.36
‘Congress used intentionally broad language’ in Roberts’ discussion of representative government
§201(a)(3) to embrace ‘any decision or action, on implies that a constituency ought to provide public
any question or matter, that may at any time be officials with a baseline level of trust to execute the
pending, or which may by law be brought before necessary responsibilities of a public office. Madison
any public official, in such official’s official capacity.’ similarly insisted that members of the government
The Government concludes that the term ‘official should be implicitly trusted by the public, and he
act’ therefore encompasses nearly any activity by took this argument one step further by claiming that
a public official. In the Government’s view ‘official elected officials would be of such caliber as “to refine
act’ specifically includes only arranging a meeting, and enlarge the public views.”37 Madison embraced the
contacting another public official, or hosting an aristocratic nature of government in this assumption
event—without more—concerning any subject, that representatives would possess more virtue and
including a broad policy issue such as Virginia intelligence than “average citizens” and that their
economic development.34 “wisdom may best discern the true interest of their
country, and…[that their] patriotism and love of justice
The federal bribery statute, the government argued, will be least likely to sacrifice it to temporary or partial
was intended to apply broadly and thus restrictively considerations.”38 These words reflect Madison’s
to the activities of public officials. Importantly, the
government’s logic also implies that proof of direct
quid pro quo was deliberately not a feature of the original
law, as 18 U.S.C. §201 was meant to cover nearly all
actions of officials that appear to benefit donors,
whether directly or indirectly. The Supreme Court,
however, interpreted the bribery statute much like it
did the honest-services law in Skilling.

John Roberts, author of the majority opinion of
McDonnell, rejected the federal government’s arguments
and denounced §201 as unfairly vague. He wrote: “…
setting up a meeting, calling another public official,
or hosting an event does not, standing alone, qualify
as an ‘official act.’”35 Even after Governor McDonnell
received approximately $175,000 in loans and gifts and
engaged in repeated interactions with Mr. Williams
regarding Anatabloc, the governor’s activities were still
considered lawful because the Supreme Court insisted,

Journal on Constitutional Democracy 27

steadfast faith that public officials would execute their profound impact on modern public affairs.The parallels
responsibilities properly, knowledgably, and morally between James Madison’s writings and the writings of
while in office, a perspective that makes his narrow the Supreme Court in Skilling and McDonnell are stark,
conception of corruption seem a logical conclusion. and the American public’s perception of corruption is
Few legal restrictions were necessary for a subset of not far off from the Anti-Federalist perspective in the
individuals who possessed such wisdom and virtue! early 19th century. In addition, the frustrations held
Within McDonnell v. United States, the Supreme Court by the public following the caning of Charles Sumner
asserted a similar perspective: according to Chief Justice were left unaddressed by public officials – similarly, the
Roberts, public officials will seemingly by nature “act concerns of the public had little impact on the case of
appropriately”39 in responding to constituent concerns. Senator Robert Menendez. And all of this reveals an
even larger, also yet unanswered question concerning
Though apparent, the profound influence of James whether or not public sentiments in general should
Madison’s limited definition of corruption on the receive government response. In a democratic society,
modern case law of the United States Supreme Court is asymmetry between public policy and public opinion
may not suit the general public. Mark Warren explains an object of concern? Should modern discourse shape
that a contemporary conceptualization of corruption, the activities of government, or should Americans turn
at odds with the Madisonian tradition, has arisen with to the country’s intellectual founders for wisdom?
greater focus on mass political inclusion: “…every
individual potentially affected by a decision should 1“The Sumner Outrage. A Full Report of the Speeches
have an equal opportunity to influence the decision… at the Meeting of Citizens in Cambridge, June 2, 1856,
collective actions should reflect the purposes decided in Reference to the Assault on Senator Sumner, in the
under inclusive processes.”40 Redlawsk and McCann Senate Chamber at Washington.” Cambridge: John
offer additional insight into this modern perception Ford, Printer, 1856. 3. The Library of Congress. 15
of corruption in a summary of public opinion data October 2017.
they collected: https://lccn.loc.gov/19008592
2 Ibid, 5.
Under this much broader conceptualization of 3Ibid, 23.
political corruption, many common activities in 4Ibid, 11.
a system of liberal representation – backroom 5Sinha, Manisha. “The Caning of Charles Sumner:
deal-making and logrolling, the mobilization of Slavery, Race, and Ideology in the Age of the Civil
particular factions to further one’s political causes, War.” Journal of the Early Republic 23.2 (2003): 233-
brazen appeals to partisanship, for example – 262, 233.
might be called into question.41 6Sinha, Manisha. “The Caning of Charles Sumner:
Slavery, Race, and Ideology in the Age of the Civil
Despite public opinion moving toward this broader, War.” Journal of the Early Republic 23.2 (2003): 233-
less permissive conception of corruption, the Supreme 262, 234.
Court of the United States continues to embrace 18th-
century Madisonian theories. The disparity between
the Supreme Court and the public reflects a difficult
conundrum in American government: what source
should the Court use to define corruption in cases that
come before it? Should the Court embrace the public’s
broad definition of corruption or respect the Founding
Era conception?

While the examination of the philosophical
underpinnings of corruption may generate more
questions than answers, one lesson is clear: history has a

28 Kinder Institute

7Woods, Michael E. “‘The Indignation of Freedom- 2010.
Loving People’: The Caning of Charles Sumner and 24Skilling v. United States, 561 U.S. 358, U.S. Sup. Ct.
Emotion in Antebellum Politics.” Journal of Social 2010.
History 44.3 (2011): 689-705, 698. 25Skilling v. United States, 561 U.S. 358, U.S. Sup. Ct.
8Phillips, Amber. “Everything you need to know 2010.
about Sen. Robert Menendez’s corruption saga.” The 26Skilling v. United States, 561 U.S. 358, U.S. Sup. Ct.
Washington Post (April 26, 2017). 2010.
9Friedman, Matt and Ryan Hutchins. “Justice 27Skilling v. United States, 561 U.S. 358, U.S. Sup. Ct.
Department drops corruption case against Menendez.” 2010.
Politico (January 31, 2018). 28Lipton, Eric, and Benjamin Weiser. “Supreme Court
10Hamilton, Alexander, John Jay, and James Madison. Complicates Corruption Cases From New York to
The Federalist Papers: The Gideon Edition. Liberty Illinois.” The New York Times. (June 27, 2016).
Fund, Inc., 2001. 45. 29Ibid
11Hamilton, Alexander, John Jay, and James Madison. 30Skilling v. United States, 561 U.S. 358, U.S. Sup. Ct.
The Federalist Papers: The Gideon Edition. Liberty 2010.
Fund, Inc., 2001. 269. 31Skilling v. United States, 561 U.S. 358, U.S. Sup. Ct.
12Warren, Mark E. “What Does Corruption Mean in 2010.
a Democracy?” American Journal of Political Science, 32McDonnell v. United States, 579 U.S. ____, U.S. Sup.
48.2 (2004): 328–343, 330. Ct. 2016.
13Hamilton, Alexander, John Jay, and James Madison. 33McDonnell v. United States, 579 U.S. ____, U.S. Sup.
The Federalist Papers: The Gideon Edition. Liberty Ct. 2016.
Fund, Inc., 2001. 47. 34McDonnell v. United States, 579 U.S. ____, U.S. Sup.
14Storing, Herbert J. The Anti-Federalist. Chicago: Ct. 2016.
The University of Chicago Press, 1985. 19. 35McDonnell v. United States, 579 U.S. ____, U.S. Sup.
15Storing, Herbert J. The Anti-Federalist. Chicago: Ct. 2016.
The University of Chicago Press, 1985. 19. 36McDonnell v. United States, 579 U.S. ____, U.S. Sup.
16Hamilton, Alexander, John Jay, and James Madison. Ct. 2016.
The Federalist Papers: The Gideon Edition. Liberty 37Hamilton, Alexander, John Jay, and James Madison.
Fund, Inc., 2001. 45. The Federalist Papers: The Gideon Edition. Liberty
17Hamilton, Alexander, John Jay, and James Madison. Fund, Inc., 2001. 46.
The Federalist Papers: The Gideon Edition. Liberty 38Hamilton, Alexander, John Jay, and James Madison.
Fund, Inc., 2001. 269. The Federalist Papers: The Gideon Edition. Liberty
18Hamilton, Alexander, John Jay, and James Madison. Fund, Inc., 2001. 46.
The Federalist Papers: The Gideon Edition. Liberty 39McDonnell v. United States, 579 U.S. ____, U.S. Sup.
Fund, Inc., 2001. 268. Ct. 2016.
19Storing, Herbert J. The Anti-Federalist. Chicago: 40Warren, Mark E. “What Does Corruption Mean in
The University of Chicago Press, 1985. 19. a Democracy?” American Journal of Political Science,
20Hamilton, Alexander, John Jay, and James Madison. 48.2 (2004): 328–343, 333.
The Federalist Papers: The Gideon Edition. Liberty 41Redlawsk, David P., and McCann, James A. “Popular
Fund, Inc., 2001. 46. Interpretations of ‘Corruption’ and their Partisan
21Redlawsk, David P., and James A. McCann. “Popular Consequences.” Political Behavior 27.3 (2005): 261-
Interpretations of ‘Corruption’ and their Partisan 283, 264.
Consequences.” Political Behavior 27.3 (2005): 261-
283, 264.
22“75% in U.S. See Widespread Government
Corruption.” Gallup News (September 15, 2015).
23Skilling v. United States, 561 U.S. 358, U.S. Sup. Ct.

Journal on Constitutional Democracy 29

Iran and Chile: An Examination
of Human Rights Conditions
Following United States Influence
in Coup d’états

by Rylie White

30 Kinder Institute

In 2004, when the Iraq War was at the forefront of admonishing the prospect of foreign action. In his
political discussions, American journalist Ron Suskind’s farewell address, for example, George Washington
interview with an anonymous advisor to President writes:
George W. Bush was published in The New York Times.
Discussing the relationship between the press, the The duty of holding a neutral conduct may
actions of the administration, and history, the advisor be inferred, without anything more, from the
reportedly stated the following: obligation which justice and humanity impose on
every nation, in cases in which it is free to act, to
We’re an empire now, and when we act, we create maintain inviolate the relations of peace and amity
our own reality. And while you’re studying that towards other nations.
reality—judiciously as you will, we’ll act again,
creating other new realities, which you can study For Washington, the obligation to inviolately maintain
too, and that’s just how things will sort out. We’re peaceful foreign relations could be fulfilled through
history’s actors…and you, all of you, will be left to isolationism, a position he reiterates when, later in the
just study what we do. address, he offers “counsels of an old friend” to “warn
against the mischiefs of foreign intrigue [and] to guard
The chilling quote was later attributed to former policy against the impostures of pretended patriotism.” In an
advisor Karl Rove, and although he denies making 1823 letter from Thomas Jefferson to James Monroe,
the statement, it remains a popular point of reference we see an even stronger founding-era inclination
for critics of the Bush administration’s foreign policy toward isolationist attitudes, as he writes: “The
decisions. Despite its somewhat dark connotation, presumption of dictating to an independent nation the
the notion that history exists as a malleable script to form of its government is so arrogant, so atrocious, that
be determined by the world’s largest actors holds indignation as well as moral sentiment enlists all our
substantial truth. Because of this, it calls for reflection partialities and prayers in favor of one and our equal
on previous actions taken by the United States execrations against the other.”It might be expected that
government. It is no secret that, in the time that the this generation of leaders would hold this view; after
U.S. has become a global power, its government has all, they had just liberated themselves from oppressive
utilized its hegemon status to advance certain causes. British rule. Still, these opinions contrast greatly with
the 20th-century history and current state of U.S.
The condition and functionality of a nation’s foreign policy.
government is dependent on a number of economic,
social, and environmental factors; no single instance in In recent years, the U.S. Central Intelligence Agency
history can be solely responsible for the advancement or (CIA) has declassified a number of documents claiming
hindrance of a society’s progress. It is, however, likewise U.S. involvement in, or advocacy of, the toppling
undeniable that policy decisions made by the United of several foreign regimes. Although America’s role
States, especially in the context of the mid-to-late 20th in regime change is nothing new, the CIA’s covert
century, have played a substantial role in shaping the
geopolitical climate we see today. The United States
has long touted itself as a champion of democracy, and
presidential administrations from Woodrow Wilson’s
to George W. Bush’s have defended the United States’
actions as integral to the spread of global democracy
and freedom. Yet it seems that although they are in
company of noble efforts, some U.S. policy decisions
have proven to be less-than altruistic—at times working
against partial or functioning democracies.

As far back as the founding, we see national leaders

Journal on Constitutional Democracy 31

missions to overthrow foreign leaders have still sparked relatively progressive, was nowhere near a perfect or
extensive controversy. The cases looked at in this essay, fully-functioning democracy, but the regime change in
while deserving of critical review, will be studied not 1953 ruined any possibility for a democratic Iran.
only from the standpoint of the affected country but
also in the context of the Cold War: that is, in the In 1951, Mossadegh was nominated as Prime Minister
context of a time when the spread of communism was by the Iranian parliament with a vote of 79-12 and
a legitimate and pervasive concern in Western society. appointed to power by the Shah, Mohammad Reza
In terms of methodology and objective, this essay will Pahlavi. In theory, the Iranian parliament, better known
examine the political and human rights conditions as the Majle, was a sovereign body, but the Shah, or
within a nation during the timeframe of American “king of kings,” held ultimate power. Mossadegh’s most
involvement, as well as how involvement has shaped notable policy move was his decision to nationalize
the continuing relationship between the nation being the Iranian Oil industry. Naturally, this crossed
studied and the U.S. What this essay will not do is make Great Britain, who had utilized oil reserves from the
an attempt to wholly denounce or justify reasons for Middle East via the Anglo-Iranian Oil Company since
intervention. As will be explored later, each instance of 1908. By 1953, the Shah had fled Iran following an
U.S. involvement is different. In some cases, problems altercation with Mossadegh. Nationalization, as well as
surrounding human rights conditions may have arisen Mossadegh’s refusal to negotiate with the British, was
in direct correspondence with regime change, while to a large extent the impetus for British involvement in
other cases may be more nuanced, with consequences the coup to overthrow the Prime Minister. The United
that manifested themselves several years later. A brief States, on the other hand, was more concerned with
recap of each case is important in order to establish the possibility of Soviet influence in the area; thus, they
the historical timeline that is necessary for observing worked closely with the British to intervene. Several
decades after the coup, the CIA confirmed U.S. motives,
changes in the landscape of human rights and relations stating that the Agency’s objective was to “disenchant
with the U.S. over time. the Iranian population with the myth of Mossadeq’s
patriotism, by exposing his collaboration with the
One of the most historically and politically far- communists and his manipulation of constitutional
reaching CIA operations abroad is U.S. involvement authority to serve his own personal ambitions for
in the 1953 coup d’état in Iran, an event that would power.” The Iranian coup resulted in full power
set the precedent for further operations around the being granted to Shah Mohammad Reza Pahlavi, who
world. The deposing of Prime Minister Mohammad returned to Iran and ran a pro-Western authoritarian
Mossadegh (or Mossadeq) would help trigger a regime until 1979. After 26 years, fundamentalist
concatenation of events that are partially responsible Ayatollah Khomeini led a revolution that would greatly
for the tenuous U.S.-Iranian relations we see today. change the country, establishing an Islamic Republic.
The nation’s government under Mossadegh, though
In the context of this timeline, what exactly did Iran’s
political and human rights situation look like before
and after the coup? The answer to this question is quite
complicated and remains highly debated to this day. In
terms of the landscape under Mossadegh, Richard W.
Cottam, a prominent scholar of Iranian Studies, writes:
“Dr. Mossadeq…did not exhibit the same intensity
of concern for satisfying the basic material needs of
his people that he expressed regarding the right of
national self-determination and the right of individual
freedom.” Cottam also describes both parliament and
the press as “relatively free” during this time.

32 Kinder Institute

In 1953, when the Shah was restored to power, Iran of marriage for women to 15. Before passage of these
experienced accelerated modernization under a secular laws, only men could file for divorce and they were
authoritarian military regime. In 1957, the SAVAK unilaterally granted custody of children. The Shah
(which the CIA had a great deal of involvement had also attempted to ban women from wearing the
with) was formed as the Shah’s National Intelligence veil, which received varying reactions from older and
and Security Organization. The SAVAK operated younger generations of Iranian women. As can be
to oppress political opposition and is thought to be seen by these contrasting pieces of information, the
accountable for a large portion of the human rights Shah’s authoritarian regime had elements of brutality
abuses that occurred under the Shah. It is unclear how alongside progressive reforms.
many political prisoners were taken during his reign,
but torture was certainly utilized during this period. The reasoning behind the 1979 Iranian Revolution,
The “admitted official figure” of prisoners is around as with most aspects of Iran’s history, is not exactly
3,500, with “the top figure provided by opposition agreed upon. Even so, it is apparent that America’s
decision to overthrow Mossadegh in 1953 not only
served to disrupt the potential for democratization,
but also created a breeding ground for anti-American
sentiment—at least in some corners of the population.
A slew of policies aimed at westernizing the nation
were partially responsible for provoking Ayatollah
Khomeini’s revolution, an event that would significantly
change Iran’s political landscape going forward.
The revolution arguably led to poorer human rights
conditions and harmed relations with the United States
under the theocratic political structure that would be
implemented. According to a new book by Khomeini’s
former deputy, nearly 30,000 political prisoners were
executed in 1988 alone, and extremely regressive
policies which eliminated the Family Protection Laws
and implemented strict policies regarding female dress
codes began to take shape during his reign.

Today, under this theocratic political structure, Iran
continues to face problems related to human and
civil rights. Freedom House rates Iran a 6 out of 7 on
political and civil liberties (a 1 being most free and
a 7 being least free). Both the press and the internet

leaders” nearing 125,000. By the 1970s, the Shah
had eliminated mainstream political opposition and
allowed for the existence of one sole party of the state,
the Resurgence Party.

Treatment of women under the Shah began to shift
in a more positive direction with the development
of Family Protection Laws. These laws addressed
concerns of women seeking divorce, as well as issues
related to child custody, and they raised the legal age

Journal on Constitutional Democracy 33

are considered “not free.” Human Rights Watch also nationalization of several industries, including copper
reports that “[w]omen’s rights are severely restricted and the Chilean healthcare system. Thus, the CIA
in Iran, to the point where women are even forbidden attempted to influence the outcome of Chile’s election
from watching men’s sports in stadiums.” and subsequently supported a ruthless junta under
General Augusto Pinochet. The CIA has admitted its
In light of ongoing tensions between the United States knowledge of the plot to overthrow president Allende
and Iran, Iranian public perception of the U.S. varies. in 1973, but it has not claimed involvement. The U.S.
A study by the Center for International and Security State Department also reports that the CIA used covert
Studies at Maryland found that the Iranian people funds to attempt to keep Allende out of power. At the
held only a 29% percent favorable view of the United time of Allende’s election, President Richard Nixon
States yet had a 53% favorable view of the American had given orders to the CIA to “make their economy
people. Clearly, there are a number of factors which scream” in order to stymie his rise to power. Following
may influence public perception in Iran, including the coup, civilian rule was eliminated and Augusto
access to information, current policy decisions by the Pinochet exercised absolute, brutal control.
United States, and state media influence. However,
it is important to note the discrepancies between the The U.S. provided continued support for Pinochet’s
Iranian people’s mostly negative view of the United regime, despite significant human rights atrocities under
States, versus their increased favorability of the his rule. In 2011, a commission in Chile investigating
American people. former human rights abuses under Pinochet reported a
figure of 40,018 individuals who were taken as political
The 1973 coup d’état in Chile serves as another prisoners and tortured and at least 3,197 people who
example of significant Cold War era foreign policy. had been killed under his rule. Historians Marivic
Salvador Allende, former deputy of Chile’s Congress Wyndham and Peter Read write that “[Pinochet]
and Minister of Health to radical President Pedro deterred any citizenry from ‘undermining’ his
Aguirre Cerda, was elected to the presidency in 1970. government by enforcing sun-up to sun-down curfews,
Allende’s government declaring group gatherings of more than three people
illegal[,] and suppressing the media to prevent public
took power with an ambitious programme. It was opposition. Anyone caught violating these orders would
going to nationalize the commanding heights of be—and many were—shot on sight.”13
the economy, implement a massive programme
of income distribution, end the dominance of Today, Chile operates under a representative
the large farms, transform the political system democratic republic but continues to experience the
through the creation of a unicameral legislature, after effects of Pinochet’s regime. Freedom House
develop popular participation in the running of regards Chile as a “free” country with a rating of 1 out
the economy and the political and legal system, of 7 on the freedom scale in political and civil rights,
and pursue an independent foreign policy. Yet and the country has experienced an expansion of
all this would be achieved within the existing personal liberties and civil rights since 1990.
constitutional system: the Chilean road to
socialism would be legal and peaceful.

Given Allende’s radical ideology and ties to communist
leaders, it was expected—and many would argue
somewhat warranted—that the United States would
grow wary of his regime. Allende had become
good friends with Cuba’s Fidel Castro and had
met with Ho Chi Minh while traveling to Vietnam
in 1969. Additionally, in ways similar to Prime
Minister Mossadegh, Allende’s policies focused on

34 Kinder Institute

Based on the information presented in these two case There is still much controversy over how United States
studies, there are a few conclusions that can be drawn intervention has affected these countries, and although
about United States involvement in Iran and Chile. they appear quite different today—as reflected in the
Firstly, the cases looked at in this essay generally were data presented by Human Rights Watch, conditions in
associated with human rights abuses. The conditions Iran continue to be much worse than those in Chile—
that resulted from regime change may be attributed to studying the political and human rights landscapes
the policies and actions of the regime in power but may within these two nations in the context of U.S.
also be attributed to the destabilization caused by the involvement is extremely important for understanding
change itself. Secondly, the impetus for United States present day implications of foreign policy decisions.
involvement can ultimately be traced back to the anti-
communist sentiment of the Cold War era. Although 1Suskind, Ron. “Faith, Certainty and the Presidency of
this motive to act may be considered altruistic in the George W. Bush.” The New York Times, (2004)
sense that it aimed to stem the spread of a communist 2“Washington’s Farewell Address.” 19 September
system widely deemed dangerous by and to Western 1796 The Washington Papers gwpapers.virginia.edu/
society, the outcomes of the actions themselves documents/washingtons-farewell-address/ April 25,
nonetheless tended to be negative in terms of their 2017
effect on political and physical integrity rights. 3“Washington’s Farewell Address.” 19 September
1796 The Washington Papers gwpapers.virginia.edu/
These instances involving Chile and Iran are not the documents/washingtons-farewell-address/. April 25,
only cases in which the United States has involved itself 2017
with overthrowing foreign governments, but they do 4 “Founders Online: To James Madison from Thomas
serve as important examples to be closely examined. Jefferson.” 20 December 1787 National Archives and
Records Administration,
founders.archives.gov/documents/
Madison/01-10-02-0210. April 25, 2017
5 “CIA Confirms Role in 1953 Iran Coup.” The
National Security Archive, 19 August 2013 nsarchive2.
gwu.edu/NSAEBB/NSAEBB435/. April 25, 2018
6Cottam, Richard. “Human Rights in Iran Under the
Shah.” Case Western Reserve Journal of International
Law, 12.1 (1980): 121-136, 126.
7Cottam, Richard. “Human Rights in Iran Under the
Shah.” Case Western Reserve Journal of International
Law, 12.1 (1980): 121-136, 126.
8Cottam, Richard. “Human Rights in Iran Under the
Shah.” Case Western Reserve Journal of International
Law, 12.1 (1980): 121-136, 127.
9Ibid
10Ibid
11Ibid
12Ibid
13Bowcott, Owen. “Tribunal to Investigate 1980s
Massacre of Political Prisoners in Iran.” The
Guardian, 18 Oct. 2012.
14Bowcott, Owen. “Tribunal to Investigate 1980s
Massacre of Political Prisoners in Iran.” The

Journal on Constitutional Democracy 35

Guardian, 18 Oct. 2012.
15“Women’s Rights in Iran.” Human Rights Watch 28
October 2015 https://www.hrw.org/news/2015/10/28/
womens-rights-iran April 25, 2018
16Zuesse, Eric. “Iranians’ Opinions of ISIS, of US
Government and of US People.” Strategic Culture
Foundation Online Journal May 3, 2017 https://www.
strategic-culture.org/news/2017/03/05/iranians-
opinions-isis-us-government-and-us-people.html
April 25, 2018
17Muir, Richard, and Alan Angell. “Commentary:
Salvador Allende: His Role in Chilean Politics.”
International Journal of Epidemiology 34: 4 (2005):
737-739.
18“CIA Activities in Chile.” Central Intelligence
Agency, Last updated 19 June 2013 https://www.cia.
gov/library/reports/general-reports-1/chile/#5 April
25, 2018
19Wyndham, Marivic, and Peter Read. “From State
Terrorism to State Errorism: Post-Pinochet Chile’s
Long Search for Truth and Justice.” Public History
32.1 (2010): 31–44.
20“Chile.” FreedomHouse: Freedom in the World
2017 https://freedomhouse.org/report/freedom-
world/2017/chile April 17, 2018 and “Chile.”
FreedomHouse: Freedom in the World 2018 https://
freedomhouse.org/report/freedom-world/2018/chile July 6,
2018.

36 Kinder Institute

Journal on Constitutional Democracy 37

38 Kinder Institute

Journal on Constitutional Democracy 39

Wizards of Odds: Tammany Hall’s
Manipulation of Electoral Margins

by Sarah Jolley

40 Kinder Institute

If they dare to come out in the open field and silver debate itself, after a series of 19th-century
defend the gold standard as a good thing, we shall droughts and financial crises that disproportionately
fight them to the uttermost, having behind us the affected Western and Southern agrarian communities,
producing masses of the nation and the world. culminating in the Financial Panic of 1893.5 Historian
Having behind us the commercial interests and Paul Glad observes that the cultural, class, and regional
the laboring interests and all the toiling masses, divides that had begun developing with westward
we shall answer their demands for a gold standard expansion and industrialism boiled over as a result of
by saying to them, you shall not press down upon the 1893 Panic, as the country’s plight “pitted the urban
the brow of labor this crown of thorns. You shall East against the rural West and South, the conservative
not crucify mankind upon a cross of gold.1 against the radical, and labor against capital.”6 The
Panic and President Grover Cleveland’s ineffective
So ends William Jennings Bryan’s famous “Cross of attempts to correct the ensuing depression encouraged
Gold” speech, delivered at the July 1896 Democratic many farmers to defect from the Democratic Party to
National Convention in Chicago. Considered one of the fledgling populist People’s Party, foreshadowing
the most powerful addresses in U.S. political history, the partisan and intra-party fractures that came to
the speech played an instrumental role in Bryan’s a head in the years immediately prior to the 1896
1896 Democratic presidential nomination and his presidential election.7
subsequent nomination by the Populist Party.2 In it,
Bryan calls for the abandonment of the gold standard Out of this time of economic turbulence, party
in favor of bimetallism, or the silver standard. More divisions, regional schism, and social turmoil, William
importantly, he also paints the gold/silver debate in Jennings Bryan arose as a simultaneously polarizing
terms of class and regional competition, arguing that and sympathetic figure. A Nebraska man at heart, he
the restricted, though arguably more stable, gold was known to consider the Northeast the “enemy’s
standard protected only the Northeastern capitalist, country,”8 a moniker that embodied the degree
while the silver standard and the increase in coinage
that would come with it benefitted the nation’s poor
working and agrarian classes.3 With this speech, Bryan
solidified his position not only as one of the premier
orators of the Gilded Age but also as a champion of the
politically underrepresented, economically distressed
agrarian Democrats of the American South and West.

The 1896 Presidential Election would ultimately see
Bryan, a Nebraska Democrat, pitted against William
McKinley, an Ohio Republican and ardent supporter of
big business and the gold standard. The divide of silver
vs. gold dominated much of the campaign and left the
United States split along regional and class lines, with
the industrial (and wealthier) Northeast generally in
support of the pro-gold McKinley and much of the
agricultural South and West in support of Bryan’s free
silver platform.4 In addition to this partisan clash, the
issue created deep divides within the Democratic Party,
resulting in a large number of pro-gold, pro-Grover
Cleveland Democrats at odds with poor Democratic
farmers. As important as they were to the election of
1896, these socioeconomic fractures started forming
long before it. They first arose, along with the gold/

Journal on Constitutional Democracy 41

to which the election had come to be defined by factions and industrialists, McKinley unsurprisingly
polarization. Still, in spite of the momentum that had carried the Northeast and much of the Upper Midwest,
begun to gather after his “Cross of Gold” speech and leaving Bryan the South, Lower Midwest, and the
that was codified by Populist support, class concerns West, with the exceptions of Oregon and California.13
prevented him from fusing the opposing factions of the While Bryan lost the state of New York to McKinley,
Democratic Party into a winning coalition. Because his he overwhelmingly won New York City, which he
campaign centered on the gold versus silver debate, it attributed to Tammany’s support of his campaign.14
ultimately failed to adequately bridge the gap between Overall, the results of the 1896 election would mark a
the poor agrarian farmers in the South and West, the culmination of the political realignment along regional
prosperous farmers of the Upper Midwest, and the and socioeconomic fault lines which had begun taking
industrial laborers of the Northeast. At the very least, place in the decades prior. McKinley’s support base
though, his oratory abilities and quick wit made him a consisted of businessmen, professionals, wealthy
rising star within the broader pro-silver factions of the farmers, and skilled workers, whereas Bryan’s consisted
Party, including Tammany Hall, a Democratic political of poor farmers, poor workers, Populists, and members
machine that was defined by corruption, urbanism, and
above all, its control of New York City—and thus an of the National Silver Party.
unlikely supporter of Bryan, the idealistic defender of On November 12, 1896, the Tammany Hall Publishing
the South and West. Company released volume VIII, number 181 of the
machine’s biweekly periodical, the Tammany Times. The
This paradox was not lost on members of the machine, first one printed after the results of the 1896 election
many of whom questioned the wisdom of the silver had become official, this issue of the Times bears a
standard. Prominent Tammany Hall member and unique title: the Nebraska Edition. The Nebraska
staunch gold standard supporter William Steinway, for Edition opens to a large, central photograph of a young
example, expressed disbelief at Tammany’s endorsement
of Bryan: “Tammany Hall endorsed the Nomination
of the Silverite W.J. Bryan for President, and it seems
to me as if the silver craze is rapidly spreading even
in New York.”9 Though other rank and file members
also expressed doubt over the machine’s support of
the Nebraska upstart, Tammany leadership made its
endorsement of Bryan’s candidacy abundantly clear
during his acceptance of the Democratic nomination at
Madison Square Garden, reserving five thousand seats
for the event and purchasing boxes for top Tammany
officials.10 Despite this public show of support, Bryan
and Tammany existed in an uneasy alliance. Though he
recognized that a successful political campaign required
the resources and support of party organizations like
Tammany Hall, Bryan professed to be anti-corruption
and anti-machine. For their part, many Tammany
officials remained wary of a candidate who did not fully
appeal to New York Democrats like Steinway and other
gold standard supporters in the Democratic Party.11

The dramatic election of 1896 ended in Republican
victory, with William McKinley winning 271 electoral
votes and 7,104,779 popular votes, to Bryan’s 176 and
6,502,925.12 Due to the alliance between pro-gold

42 Kinder Institute

William Jennings Bryan. He stares out of the frame, he has accomplished much. He will accomplish
proud and resolute, projecting thoughtfulness and more. This is not utter defeat he has to look upon.
conviction. From the article’s title, “A Great State’s It is the fair beginning of a new era.” Taken in its
Great Son,” and its bold proclamation, “The foremost entirety, this lengthy description of Bryan reads like a
citizen of the State of Nebraska today is Williams political endorsement that foreshadows a second run
Jennings Bryan,” the reader would never guess at the presidency in 1900. Far more importantly, by
that a little over a week earlier, Bryan had lost the deliberately exploiting Bryan’s unique personal and
presidency to Republican William McKinley. Despite political qualifications, it presents him as a candidate
this demoralizing defeat, the Tammany Times provides who transcends—and, in transcending, is capable of
a glowing review of Bryan’s character and appearance: mending—the divide between Midwestern farmers
and Northeastern intellectuals. With this article, then,
He combines in his wonderful personality Tammany plants the seeds for the coalescence of the
the physical strength of the plain citizen of voting bloc that they and the Party lacked in the 1896
the rugged West, and the keen, intellectual election, a Democratic coalition that spans classes and
force of the brilliant man of affairs. His body regions with Bryan as the figurehead and Tammany
is gladiatorial, of the broadsword order. His Hall at the helm. Tammany’s persuasive intentions, first
brain is bright, flashing, subtle, rapierlike. His hinted at in its characterization of Bryan, become both
presence is distinguished. He has the air of more nuanced and more transparent as the Nebraska
the polished gentleman, the suggestion of the Edition unfolds.
strength of the born fighter. He is by nature a
leader of men.15 Directly beneath this description lies a second,
contrasting article: “McKinley Elected-Great
Immediately, the Times begins to unveil its larger, Republican Victory.” In a rather defensive
persuasive project in the Nebraska Edition by placing acknowledgement of the election’s outcome, the Times
a persistent and purposeful emphasis on the dual, asserts that the full extent of McKinley’s victory is
seemingly contrasting aspects of Bryan’s nature—his unknown. Despite this reluctant admission of electoral
intellect and his physical strength. On one hand, Bryan defeat, they maintain their position that the election of
exemplifies the values of the cosmopolitan, educated 1896 is only the start of Bryan’s political career:
male voter. He possesses both the “air of a polished
gentleman” and the “intellectual force of the brilliant While Mr. McKinley has been fairly chosen by
man of affairs,” making him an archetype of the kind the people for their President, the Democratic
of figure capable of thriving in the urban political party has made a strong showing. Mr. Bryan
sphere. On the other hand, the article describes Bryan has sustained no inglorious defeat. He polled a
as “the plain citizen of the rugged West” and “a born stronger vote against greater odds than did Mr.
fighter,” qualities that appear to be highlighted both Cleveland in 1888. Later in the political history
to target the rural, Western voter and appeal to the of this country, when the confusion, naturally
romanticized, idealized West imagined by Tammany’s attendant upon a national election shall have
citybound, northeastern base. disappeared, Democracy will stand, stronger than
before the third of November, in better condition
Precisely because he is capable of embodying these for the next great campaign.16
otherwise incongruous traits, Bryan is ultimately
deemed “a leader of men,” consummately and Rather than presenting Bryan as an underqualified,
uniquely able to serve the interests of both Western controversial candidate, the article equates him with
rustic and Eastern intellectual voters. Finally a young Grover Cleveland. President Cleveland,
addressing the results of the election, the article a New York Democrat, won the popular vote in
makes a brief concession before launching into an 1888, though he ultimately failed to secure enough
optimistic conclusion: “Mr. Bryan is right. His work votes in the Electoral College and lost to Benjamin
is just begun. Since the great Chicago Convention Harrison. (Ironically, Tammany Hall’s refusal to

Journal on Constitutional Democracy 43

endorse Cleveland in 1888 directly contributed to his Bemis not only flatters the Eastern reader’s “industry
inability to win the electoral votes of his home state.17) and thrift” but also artfully gives it a new outlet for
Nevertheless, Cleveland returned stronger than ever expression: the irresistible lure of exchanging high rents
in the election of 1892, winning both the popular vote for cheap, profitable land by relocating to Nebraska.
and the presidency with broad Democratic support. Passages like this leave little doubt about the Nebraska
The Times, it would very much seem, is floating this Edition’s intention to encourage settlement of the state
Bryan-to-Cleveland comparison as an act of political by the Tammany Times’ New York City Democratic
prophecy, transforming the former’s loss into a narrow readers. But why? If, on the one hand, Tammany Hall
used the dual nature of William Jennings Bryan as a
defeat that will galvanize a disheartened Democratic means of bridging the ideological divide between the
base to return victorious in the “next great campaign.” East and West, the machine goes one step further here,
attempting to physically erase this divide altogether
The page immediately following the Times’ segments by geographically reallocating loyal Northeastern
on Bryan and McKinley is dominated by the headline, Democratic votes. A cross-country political coalition
“The Great State of Nebraska: A Land of Milk and of this scope would almost certainly secure Bryan’s
Honey for the Thrifty Farmer or the Shrewd Seeker presidential bid in the upcoming 1900 election. And
of Wealth.” This article sets the tone for the remainder as an additional bonus, physically manipulating the
of the Nebraska Edition, the majority of which is distribution of Democratic voters in this manner
dominated by resident testimonials that actively would also give Tammany Hall increased influence
promote settlement of Nebraska through a variety of over national politics and allow the machine to assert
rhetorical strategies and to a variety of interlocking sway over Western Democrats who had defected to the
ends. While this transition from commenting on the Populist Party.
election of 1896 to selling Western migration initially
seems abrupt, it is, upon closer scrutiny, the logical next Especially helpful in fleshing out the larger persuasive
step in Tammany’s plan. project in which Tammany is engaged are those articles
which seem to be even more transparent in their
Attributed to the Hon. George P. Bemis of Omaha, objective: “Nebraska Wants Settlers,” for example, or
“A Land of Milk and Honey” provides a lengthy “Nebraska for Homeseekers.” In the latter, Lincoln
description of Nebraska’s geography and the vast resident H.E. Heath openly affirms the purpose of the
agricultural opportunities available in the state. Given Nebraska Edition:
that the Times circulated almost entirely to New
Yorkers, the following appeal by Bemis is particularly We commend the Times for its enterprise in
pointed within the context of the Nebraska Edition’s putting out a special issue devoted to Nebraska’s
larger project: agricultural and commercial interests, for we
believe that this will do much to correct the
The tenant in the East who has accumulated by erroneous opinion prevailing in a large portion of
industry and thrift a comparatively small sum of the East, that Nebraska does not afford splendid
money, can make himself in Nebraska the owner of opportunities for the intelligent and industrious
a farm equally valuable and productive as the one home-seeker.19
for the use of which he has been paying high rent.18
This defensive reassurance of Nebraska’s suitability
for Eastern transplants makes the line from “corrected
opinion” to “industrious Nebraska home-seeker” easy
to draw. More than just a desire to correct opinions
and transplant citizens west, though, this also exhibits
how the Nebraska Edition’s ultimate goal was to forge
an entirely new and unified Democratic identity,
one centered around the personality cult of William

44 Kinder Institute

Jennings Bryan and driven by the prospect of effectively The article “Vast Garden of the West,” written by Falls
eliminating all ideological and cultural distinctions City resident Francis Martin, seems to do more of
between East and West. the same, in its initial poetic waxing about the many
agricultural opportunities available in Nebraska;
This is especially seen in how, in addition to promoting however, the Tammany Times also uses this piece as an
Nebraska’s agricultural prowess, the Tammany opportunity to comment on how “the efforts of the
Times also includes articles that celebrate its public Tammany Times to bring about a better understanding
education, transportation, and industry. In the course between the East and the West should receive the
of promoting profitable land to thrifty Easterners, for encouragement of all good citizens.”22 This statement
example, Bemis also champions: feels out of place and incongruous with the overall
message of the article, which describes Nebraska as
[a] superior system of public schools, and an a thriving agricultural center. For one, it marks the
inexhaustible State fund from which to maintain first time the Tammany Times includes an explicit
them; churches in every village and almost every statement regarding its intention to bridge the gap
valley; railroads fairly gridironing the State, and that had developed between the East and West.
a most invigorating and healthy climate, [all of Second, asserting that this goal “should receive the
which] combine to make Nebraska desirable, in encouragement of all good citizens” seems to imply
every sense of the term, for a residence.20 that some readers may criticize the Times’ choice to
publish the Nebraska Edition in the first place.23 In
Similarly, in a later article entitled, “Educational actuality, upon more careful consideration, this outlier
Facilities of the State,” Edward W. Lee defends fits perfectly as a sort of confession by Tammany Hall
Nebraska’s system of university education to the reader: of its underlying motives in publishing the Nebraska
Edition: to promote the mutually supportive goals
Notwithstanding the fact that our Western of encouraging relocation and broad reunification of
schools have not, as yet, attained the well known Democratic voters, and to put itself in the powerful
and enviable reputation of many of our Eastern position of having fostered this reconciliation.
schools, still the fact is demonstrable that every
facility in the way of high class teachers and well- After viewing the Nebraska Edition, the reader is left
equipped institutions enjoyed by our Eastern with little doubt that this issue of the Tammany Times
colleges is well enjoyed by like institutions in our was designed to encourage the newspaper’s New York
State of Nebraska.21 City recipients to identify with Midwestern voters and/
or to settle the state of Nebraska (again, with the one
Lee’s direct cross-regional comparison of educational goal often supporting the other). With this knowledge
facilities reassures the Eastern reader that Nebraska in hand, the reader must return to the central
boasts cultural institutions on par with the East (save question driving this inquiry: why is Tammany Hall,
for in reputation), further dispelling misconceptions, a Democratic political machine concerned with New
justifying relocation, and establishing a common York City politics, actively encouraging the settlement
identity in even broader terms than before. Other of Nebraska by their political base? As the first issue of
articles go on to advertise “Best Roads in the Union,”
“The Nebraska Telephone Company,” and “Nebraska’s
Wonderful Productiveness,” each presenting Nebraska
as modern, industrious, and economically vibrant.
While such articles and testimonials do not advertise
settlement, as such, when examined as a group and in
conjunction with the articles analyzed previously, it
becomes clear that their shared, overarching goal is not
simply to paint Nebraska to Easterners as a desirable
place but also to render coastal and middle America
more or less indistinguishable.

Journal on Constitutional Democracy 45

the Tammany Times after the 1896 election, the editorial
choice to publish the Nebraska Edition certainly seems
significant, and by examining the broader historical and
electoral context of the Nebraska Edition, I hope to
confirm earlier suspicions regarding why it is significant.

I argue that the answer lies in the character of William
Jennings Bryan, the unlikely Nebraska Democrat who
won the loyalty of poor, agrarian voters in the South
and West in the presidential election of 1896. Prior to
Bryan’s candidacy, a large portion of this demographic’s
defection from the Democratic Party to the newfound
Populist Party signaled a divide between the interests of
the urban, industrial East and the rural, agrarian South
and West. Moreover, pre-Bryan, the Eastern elites of
the Democratic Party, formerly the dominant ruling
coalition, resisted meaningfully acknowledging—i.e.,
working to counteract—the defection of Southern and
Western voters to the Populist Party, instead continuing
to prioritize their own interests. However, with the
electoral victory of William McKinley, these Eastern
elites were confronted with the consequences of party
schism. Shortly after the election, once it became
clear that Eastern control of the national Democratic
Party was slipping, the politically savvy Tammany
boss Richard Croker returned from his retirement in
England. Croker saw the results of the election of 1896
as an opportunity to capitalize on the dysfunction within
the Democratic Party and to recapture alienated voters.
So Tammany carefully painted William Jennings Bryan
and Nebraska as a whole as larger embodiments of a
culturally and economically fertile region—a “Land of
Milk and Honey”—thereby extending this praise more
broadly to all Western voters, disassociating the machine
from insular eastern political elites, and bringing all into
one fold. Additionally, I argue that Tammany Hall used
the Nebraska Edition to simultaneously set the stage
for another Bryan campaign in 1900 and encourage
members of its urban, democratic base to settle Nebraska,
with the ultimate goals of extending its political clout
and influencing elections on a national scale.

Ironically, Tammany’s increased involvement in
William Jennings Bryan’s 1900 campaign may have
inadvertently contributed to its ultimate demise. To
welcome Bryan to New York City, Croker staged an
elaborate procession from Grand Central Station to
Tammany Hall, planning for himself and Bryan to ride

46 Kinder Institute

in an open carriage through the streets of New York New York, the Ice Trust Scandal, and Croker’s more
City, as roman candles and fireworks marked their unsavory political ambitions. Ultimately, McKinley
progress to the assembled crowd.24 Unfortunately for would once again defeat Bryan, earning 292 votes in
Croker and Bryan, a last-minute storm forced them to the electoral college and 51.7 percent of the popular
cancel the fireworks display and proceed in a closed vote.27 Bryan, meanwhile, garnered only 155 votes in
carriage, and the gathered crowd quickly dispersed. the electoral college and 45.5 percent of the popular
For both men, the great fanfare preceding the event vote. It seems that despite Tammany Hall’s plans for the
and its subsequent failure came off as a public relations Nebraska Edition, the machine couldn’t establish the
nightmare. Later, in a speech before a crowd at Cooper functional transregional voting bloc that it set out to
Union, Bryan purportedly deviated from his planned create, either because of its failure to encourage enough
remarks and announced “great is Tammany and Croker Northeastern supporters to migrate westward, or its
is its prophet.” This unwise, impromptu statement inability to transform William Jennings Bryan into a
drew harsh criticism from Republicans, who censured candidate that the public perceived as being capable of
Bryan in the press for bragging about his association uniting the diverse interests of the agricultural West
with the corrupt Tammany boss.25 and the industrial Northeast. Ironically, even with
Tammany’s efforts (or perhaps because of them) Bryan
In 1900, William Jennings Bryan’s central policy would lose his home state of Nebraska.
proposals still revolved around the silver standard
and the interests of the poor and working classes. 1“Bryan’s “Cross of Gold” Speech: Mesmerizing the
Unfortunately, in an election dominated by issues of Masses” American Social History Project. 3 January
imperialism and trust-busting, Bryan’s connection to 2017. George Mason University. 11 October 2017.
Tammany Hall in the wake of the American Ice Trust 2Ibid
Scandal of 1900 only convinced voters of his own
corruption and hypocrisy. Croker and New York City
Mayor Robert Van Wyck were subject to massive public
outcry after it was revealed that Tammany had bribed
multiple city officials into securing a monopoly for the
American Ice Company, a trust principally controlled
by Croker, Van Wyck, and other Tammany lackeys.26
Bryan’s proximity to all of this culminated in a series of
damning political cartoons by William Allen Rodgers
for Harper’s Weekly, in which Rodgers continually
linked Bryan to Tammany, his failed welcome to

Journal on Constitutional Democracy 47

3Ibid 20Bemis, George P. “The Great State of Nebraska:
4Harpine, William D. From the Front Porch to A Land of Milk and Honey for the Thrifty Farmer
the Front Page: McKinley and Bryan in the 1896 or the Shrewd Seeker of Wealth.” Tammany Times
Presidential Campaign. College Station: Texas A&M 8.181. (1896): 4.
University Press, 2005. 28. 21Lee, Edward W. “Educational Facilities of the State.”
5Jones, Stanley L. The Presidential Election of 1896. Tammany Times 8.181. (1896): 14.
Madison: The University of Wisconsin Press, 1964. 22Martin, Francis. “Vast Garden of the West.”
40. Tammany Times 8.181. (1896): 6.
6Glad, Paul William McKinley: The Politics of 23Ibid
Depression 12 July 2018 Profiles of U.S. Presidents: 24Crichton, Judy. America in 1900: The Turning Point.
William McKinley http://www.presidentprofiles.com/ New York: Henry Holt and Company, 1998. 244.
Grant-Eisenhower/William-McKinley-The-politics- 25Ibid. 245
of-depression.html 26Golway, Terry. Machine Made: Tammany Hall and
7Jones, Stanley L. The Presidential Election of 1896. the Creation of Modern American Politics. New York:
Madison: The University of Wisconsin Press, 1964. Liveright Publishing Corporation, 2014. 181-82.
43-46. 27Pallardy, Richard. “United States Presidential
8Kent, Noel Jacob. America in 1900. New York: M.E. Election of 1900.” Encyclopedia Britannica. 2017. 15
Sharpe, Inc. 2000. 160. October 2017.
9“The William Steinway Diary, 1861-1896.”
The William Steinway Diary Project. The
Smithsonian Institution. 15 April 2018. http://www.
americanhistory.si.edu/steinwaydiary/diary/
10Harpine, William D. From the Front Porch to
the Front Page: McKinley and Bryan in the 1896
Presidential Campaign. College Station: Texas A&M
University Press, 2005. 76.
11Ibid. 87
12“United States Presidential Election of 1896.”
Encyclopedia Britannica. 2017. 15 October 2017.
13Ibid
14Harpine, William D. From the Front Porch to
the Front Page: McKinley and Bryan in the 1896
Presidential Campaign. College Station: Texas A&M
University Press, 2005. 143.
15“A Great State’s Great Son.” Tammany Times 8.181.
(1896): 3.
16“McKinley Elected-Great Republican Victory.”
Tammany Times 8.181. (1896): 3.
17Pallardy, Richard. “United States Presidential
Election of 1888.” Encyclopedia Britannica. 2017. 15
October 2017.
18Bemis, George P. “The Great State of Nebraska:
A Land of Milk and Honey for the Thrifty Farmer
or the Shrewd Seeker of Wealth.” Tammany Times
8.181. (1896): 4.
19Heath, H.E. “Nebraska for Homeseekers.” Tammany
Times 8.181. (1896): 15.

48 Kinder Institute