Journal on Constitutional Democracy

Rhetoric: Then & Now Vol. 2

The cover illustration and the illustration above are taken from Professor of Elocution Albert M. Bacon’s work “A Manual
of Gesture; [sic] Embracing a Complete System of Notation Together with the Principles of Interpretation and Selections for
Practice” p. 40 (1875). The cover llustration uses the “chironomia sphere” to depict the hand gestures that may be used in
rhetorical delivery. The illustration above portrays a variety of hand gestures in rhetorical delivery. Bacon adopted the idea of
the “chironomia sphere” from from Gilbert Austin’s work, Chironomia; or a Treatise on Rhetorical Delivery: Comprehending
Many Precepts, Both Ancient and Modern, For the Proper Regulation of the Voice, the Countenance, and Gesture. Together
With an Investigation of the Elements of Gesture, and a New Method for the Notation Thereof (1806). For an overview of
these works and the chironomia sphere, please see Brian Dillon, “Inventory/Talk to the Hand”, Cabinet Magazine (Issue 26,
Magic, Summer 2007), available at http://www.cabinetmagazine.org/issues/26/dillon.php

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

2015-2016 Editorial Board

Senior Editor
Caroline Spalding

Content Editing and Copy Editing
Alison Bonner
Allison Pecorin
Jennifer Perritt

Andrew Wisniewsky

Layout and Design
Rachelle Engen

Rebecca Greenway
Alexander Hutton
Lindsay McManus
Jennifer Prohov

Contributions
Sera Holland



JOURNAL ON CONSTITUTIONAL DEMOCRACY
Rhetoric: Then & Now

Table of Contents
Note from the Editor
by Caroline Spalding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Introduction to Rhetoric: Then & Now
by Dr. Thomas Kane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Constituting (Origins)

R/republican
by Alexander Hutton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
How Susan B. Anthony Really Changed America
by Rachelle Engen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Persuading (the Public)

“For Eagles to be Crows”
by Andrew Wisniewsky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
When the Crows Stop Calling
by Sera Holland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
When a Fox Guards the Henhouse: Rhetoric in Campaign Finance Reform
by Lindsay McManus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Mongering (Fear)

The Other: Understanding the Eugenics Movement through Analysis of Language
by Allison Pecorin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Tactics of Delegitimizing Democracy
by Alison Bonner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
“In God We Trust” and “Under God”: Eisenhower’s Theocratic Legacy
by Caroline Spalding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Mobilizing (Voters)

Democracy and the Rhetoric of Early Feminism: A Comparison of the Declaration of
Independence (1776) and the Declaration of Sentiments (1848)

by Jennifer Perritt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
The Role of Rhetoric in American Politics
by Jennifer Prohov. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Image Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

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Note from the Editor

Dear Reader,

This past year has been one of considerable change at Mizzou. Incidents on and around campus shed light on the
injustices that minority students and citizens across the nation continue to face, and the protests in Columbia that
followed during Fall 2015 culminated in the resignation of University of Missouri System President Tim Wolfe.
In addition, MU graduate students joined together during the 2015-16 academic year to demand equal rights as
workers and recently voted to unionize. These events demonstrate how rhetoric and citizen participation can affect
even the highest institutions in a democratic community and can start conversations that have the potential to lead
to large-scale, meaningful change.

Throughout the year, our undergraduate student writers, myself included, have been working tirelessly on their
submissions to the Journal on Constitutional Democracy in order to ensure that this volume both underscores the
significance of rhetoric in a society built on a foundation of free speech and measures up not only to the standards
set by the inaugural class of the Kinder Institute’s Society of Fellows but also to the academic standards of other
scholarly publications. The essays that follow, all of which focus on a different component of the history of rhetoric
in the United States, draw heavily on primary sources and cover rhetoricians ranging from Jefferson to Trump, and
consequences of rhetoric ranging from exclusion to empowerment. While reading, I ask you to keep an open mind,
and whether you agree or disagree with the writers, to further explore the ideas they present. I hope you enjoy
reading these submissions as much as I have.

Sincerely,

Caroline Spalding

Senior Editor

Journal on Constitutional Democracy 7

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Introduction to Rhetoric: Then & Now

Dr. Thomas Kane

“as cookery : medicine : rhetoric : justice”

—Plato, “Gorgias”

As Plato suggests with the above analogy, the cynicism that accompanies a scholarly engagement with—and sometimes
even a casual mention of—the art (dark art?) of rhetoric is often difficult to suppress. “Knavish and ignoble,” Plato
goes on to describe the rhetorician’s craft; “a simulation of a disguise”; “a substitution of flattery for truth.”

While the kind of dangerously persuasive duplicity that Plato outlines is not lost on the authors and editors of this
year’s Journal on Constitutional Democracy, they very much recognize the problems inherent in treating cynicism as,
itself, an endgame. From Andrew Wisniewsky’s critique of hawkish slander during the Great Plains Wars to Allison
Pecorin’s indictment of the language and logic politicians drew on to disenfranchise the mentally ill community in the
late-nineteenth and early-twentieth centuries, the articles in this year’s Journal that tackle rhetorical deceit in no way
emptily bemoan the absence of truth. Instead, these articles engage in the far more nuanced and productive process
of shedding light on the truth that was absent, buried beneath decorative turns of phrase, inscrutable grammatical
constructions and, in some cases, outright lies. Which is to say that they expose the dire consequences of falling prey
to false rhetoric and, in doing so, demand the utmost accountability from both rhetorician and audience.

Also not lost on this year’s authors is that Plato’s critique tells only half of the story. As Jennifer Perritt makes clear
in her section-by-section comparative close reading of the Declarations of Independence and Sentiments—and
as Rachelle Engen reiterates in her study of orators invoking “We the People”—the kind of rhetoric that trades
primarily in Aristotle’s logos has been responsible for catalyzing the reconciliation of injustices that have plagued,
and that continue to plague, democratic societies the world around.

In between these two poles are articles that tackle fundamental questions regarding how the matter and platform
of rhetoric has changed in the digitized and analytically-revolutionary modern age. What insight can data provide
us about the sometimes terrifying effects of election cycle rhetoric and behavior, Jennifer Prohov asks? Or, if we
read between the lines of Alexander Hutton’s essay on the meaning that a decision as simple as capitalization
communicates, what mess would we have made of Thomas Jefferson’s “First Inaugural Address” in the era of
140 characters?

As a whole, these and all other articles in this year’s Journal make a simple but all-important request of their readers:
to be attentive to the significance of minutia—to consider the text on our nation’s currency (Caroline Spalding); to
count the pages in our states’ ethics guides (Lindsay McManus); to do the impossible and imagine a world in which
today’s political speeches are held to the standard of Madison’s constitutional theory (Alison Bonner).

And so, readers, do enjoy these articles, and do press back against them. More than anything, though, do admire
the excellent scholarly work and drive of a group of students who willingly added an extra class to their schedules
at the last minute so that they could write essays not because they had to but because they wanted to—because they
understood that meaningful participation in constitutional democracy requires curiosity and historical context;
it requires people who understand that progress at times begins with an essay (and that writing essays is at times
pretty fun).

Journal on Constitutional Democracy 9

10 Kinder Institute

Constituting (Origins)

Journal on Constitutional Democracy 11

R/republican

Alexander Hutton

“Inauguration” (1905) understood the importance of using his inaugural
address as a way to begin reestablishing the public’s
The election of 1800 featured John Adams running faith in the nation’s political systems and processes as
for the Federalist Party and Thomas Jefferson running well as in the durability and integrity of the document,
for the Democratic-Republicans. At the time, much the 1787 Constitution, which had put them into place.
like today, candidates on both sides were often harsh Jefferson thus presents the Constitution in his “First
and very negative toward their opponents, and when Inaugural Address” as the device that could serve both
the election cycle was over, due to the two-name to bring the country together under common political
ballot system in place, Thomas Jefferson and Aaron principles and still allow for differences of political
Burr (another Democratic-Republican) had tied in opinion, all the while working to reunite a fractured
electoral votes. This tie sent the election to the House nation through this complex, and at times seemingly
of Representatives, where it took 36 ballots over six contradictory, set of appeals.
days to elect Jefferson as the third President of the
United States.1 It was only after the intervention of I.
Alexander Hamilton, who advised his Federalist allies
to vote for Jefferson as opposed to Burr, that the In his “First Inaugural Address,” delivered in
election was finally decided.2 At this point, however, Washington on March 4, 1801, Thomas Jefferson
the partisan damage from the election had been done, almost immediately looks backward in time to broadly
and Jefferson was acutely aware that he was coming stress the importance of common principles. In the
to power facing a nation that had not only become speech’s second paragraph, he writes:
sharply divided along party lines but that had also
grown disenchanted with an electoral process that had Let us, then, fellow-citizens, unite with one
proven itself less than perfect. As a result, Jefferson heart and one mind. Let us restore to social
intercourse that harmony and affection without
which liberty and even life itself are but dreary
things. And let us reflect that, having banished
from our land that religious intolerance under
which mankind so long bled and suffered,
we have yet gained little if we countenance a
political intolerance as despotic, as wicked, and
capable of as bitter and bloody persecutions. 3

Especially important in the quotation is that Jefferson
chooses to invoke the pre-history of the problem at
hand in the midst of describing the day’s hostile political
environment. For Jefferson, the fact that the nation had
already once found its way out from under suffering
by being united around the principle of religious
tolerance was a lesson that had clear implications for
the United States, a young nation trying to survive its
rocky early years.

Specifically, by using the consequences of religious

12 Kinder Institute

intolerance as a parallel for the consequences of political seen when, in the sentences immediately following
intolerance, Jefferson makes it clear that if the nation the previously cited passage, Jefferson claims, “But
failed to find a common political principle around which every difference of opinion is not a difference of
to rally or “harmonize,” all of the prior generations’ principle. We have called by different names brethren
advances towards liberty and freedom would have been of the same principle. We are all Republicans, we are
for naught and a subsequent return to “despotism, all Federalists.”5 On the surface, the use of capital-F
wickedness, and persecutions” would be imminent. Federalist and capital-R Republican would seem to
undermine Jefferson’s primary argument about the need
After establishing the basic point that unity around a for political harmony by playing up the terms’ partisan
common political principle was paramount to saving connotations (and thus the political divisiveness of the
the nation, Jefferson next seeks to identify the source time). However, his use of the language “we are all”
of that principle. Continuing in his second paragraph, ultimately prevents this reading and reiterates his main
he states, point by breaking down the distinction between the
parties and, in doing so, forcing people to acknowledge
During the throes and convulsions of the ancient the shared principles—federalism and republicanism—
world, during the agonizing spasms of infuriated upon which the Federalist and Democratic-Republican
man, seeking through blood and slaughter his parties were founded. This double reference serves a
long-lost liberty, it was not wonderful that the specific purpose for Jefferson, allowing him to concede
agitation of the billows should reach even the that party affiliations and the different opinions that
distant and peaceful shore; that this should be come with them exist and are welcome within American
more felt and feared by some and less by others, constitutional democracy while simultaneously
and should divide opinions as to measures demanding that people remain (a) cognizant of the
of safety.4 common principles in which these differences are
rooted and (b) committed to the common ideals that
Although it is not explicitly mentioned, the these principles were designed to facilitate (and that
Constitution is central to understanding Jefferson’s took precedence over partisan-driven differences).
intention in this passage. By placing his language in the
historical context of post-Revolution America, we can II.
infer that he is referring, here, to how the Constitution
symbolically and practically ensured to the people their It stands to reason that citizens’ understanding of
“long-lost liberty” after a sustained period of “blood Jefferson’s address, particularly when it came to details
and slaughter” and, in this, became both the cause like the capitalization of Republicans and Federalists,
and safeguard of individual rights, equality, and order. would have been dictated by how the speech was
For Jefferson, to be divided (as the nation then was) reprinted in the primary media source then available:
about whether or not the Constitution contained the the newspaper. Newspapers would seem to have
principles necessary to provide a “measure of [political] been “at liberty,” so to speak, to reprint the message
safety” for all was to allow for the possibility of the in whatever way they saw fit, a fact which would have
dissolution of society back to a point where liberties allowed the media to alter details like capitalization
were not secure: where they were enjoyed “more by as a way of skewing Jefferson’s message to reflect
some and less by others” or, potentially worse, where their support or condemnation of it (and him). Based
people would once again have to fight for them. on my argument above, it seems likely that papers
that supported Jefferson would not have capitalized
Even though Jefferson is quick to uphold the Republican and Federalist as a way to stay true to his
Constitution as the safeguard of liberty (and the means message about the importance of unity via common
of repelling tyranny) in the United States, he also principles by mitigating the possibility of anyone
points out that an adherence to the Constitution in misreading the speech as partisan. Conversely, papers
no way precludes the kinds of political disagreement that did not support Jefferson might have used all
associated with a two-party system. This is most clearly

Journal on Constitutional Democracy 13

After the highly contested election of 2000, George W. Bush came to power knowing that the election
had fractured the nation. In his victory speech, given from the Texas House of Representatives chamber
on December 14th, 2000, Bush uses language that is not unlike that of Jefferson during his first Inaugural
Address. Below are excerpts from each speech.

George W. Bush’s Victory Speech Thomas Jefferson’s First Inaugural Address

“After a difficult election, we must put politics “During the contest of opinion through which we
behind us and work together to make the promise have passed the animation of discussions and of
of America available for every one of our citizens.” exertions has sometimes worn an aspect which might
impose on strangers unused to think freely and to
“Our nation must rise above a house divided. speak and to write what they think; but this being
Americans share hopes and goals and values far now decided by the voice of the nation, announced
more important than any political disagreements. according to the rules of the Constitution, all will,
Republicans want the best for our nation. And of course, arrange themselves under the will of
so do Democrats. Our votes may differ, but not the law, and unite in common efforts for the
our hopes.” common good.”

“I know America wants reconciliation and unity. I “Let us, then, fellow-citizens, unite with one heart
know Americans want progress. And we must seize and one mind. Let us restore to social intercourse
this moment and deliver.” that harmony and affection without which liberty
and even life itself are but dreary things.”
“We’ve discussed our differences; now it is time
to find common ground and build consensus to “But every difference of opinion is not a difference
make America a beacon of opportunity in the 21st of principle. We have called by different names
century. I’m optimistic this can happen. Our future brethren of the same principle. We are all
demands it, and our history proves it.” republicans, we are all federalists.”

“Two hundred years have only strengthened the “Let us, then, with courage and confidence
steady character of America. And so we being the pursue our own federal and republican principles,
work of healing our nation, tonight I call upon our attachment to union and government….
that character. Respect for each other. Respect Entertaining a due sense of our equal right to the
for our differences. Generosity of spirit. And a use of our own faculties, to the acquisitions of our
willingness to work hard and work together to own industry, to honor and confidence from our
solve any problem.” fellow-citizens, resulting not from birth, but from
our actions and their sense of them….”

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typographical and editorial means at their disposal Intelligencer, who set to printing the speech exactly as
to curry this misreading by highlighting the address’ it had been given to him.6 This version was widely
partisan elements and, in turn, suggesting that distributed immediately upon the conclusion of the
Jefferson’s intention was to drive a wedge more deeply ceremonies, and as the only publicly available copy
into an already divided public. We would assume, more of the speech, and one known to have come straight
generally, that the tense political climate of the time from Jefferson himself, it became the standard of
would have been reflected in a high degree of variance reproduction for other newspapers. Although Jefferson
in how the speech appeared in print. had written three different drafts of the speech and had
gone through significant changes in each draft, it is
In fact, a survey of several newspapers from the important to note that all three drafts did not contain
time interestingly shows that not only was there capitalization of the terms in question. With the
no variance across the group, but that there was mystery of the speech’s uniformity solved, we are left
also no capitalization of either word in the original only with the questions of why some modern sources
publications. This brings up several questions worth insist on capitalizing the terms today and whether this
addressing through the end of this article. Why was capitalization even matters.
there no capitalization in any of the cases found? Is
this indicative of a widely circulated copy of the speech One document that we might examine to begin
that did not include capitalization or was it an editorial assessing the significance of capitalization in Jefferson’s
decision? And, finally, does capitalization of F/federalist “First Inaugural Address” is the Declaration of
and R/republican even matter? Independence, for which Jefferson was the primary
author. Indeed, the original draft of the Declaration
For this essay, I examined five different newspapers that shows places where Jefferson failed to capitalize words
reprinted the original speech: the National Intelligencer that were capitalized in the final, signed document. 78
in Washington, D.C.; the New-York Gazette in New And while direct conclusions about who made these
York; the Guardian of Liberty in Newport, RI; the changes and why cannot be drawn, given that the
Independent Chronicle in Boston; and the City Gazette Declaration had multiple authors and editors, it is still
in Charleston, SC. The National Intelligencer was the worth asking whether the meaning of the document
first newspaper to reproduce the speech, publishing it was altered based upon these instances of capitalization.
on the same day of the inauguration. The City Gazette One phrase worth examining in this context is “nature’s
was the last of these five to publish the speech, exactly god,” which appears un-capitalized in Jefferson’s draft
two weeks later, on March 18. This makes sense, as but capitalized in the final document. Given the
the progression of the speech outward from D.C. prevalence of Christianity during the time, one would

“Men suppose their reason has command over their words; still it happens that words
in return exercise authority on reason.”-Sir Francis Bacon

would have made the City Gazette and Charleston, assume it to be capitalized as a way of drawing a direct
the furthest city from the capital, the speech’s logical line between the nation’s revolutionary leanings and
“last stop.” Still, this does not answer the question its religious ones, almost as if to divinely authorize the
of how uniformity was maintained among the cause. If left un-capitalized, though, god would have
different newspapers? taken on an interesting double-meaning: the meaning
that Christians would have assigned to it (God), as
As it turns out, the reason for the uniformity also is not well as a more general reference to a higher being that
hard to discern. On the morning of his inauguration, perhaps would have added even more philosophical
Jefferson gave a copy of the speech, which did not nuance and depth to an already rich document (a
contain capitalization of either federalist or republican, nuance, it should be added, with direct ties to the spirit
to Samuel Harrison Smith, the founder of the National

Journal on Constitutional Democracy 15















Journal on Constitutional Democracy 23

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Persuading (the Public)

Journal on Constitutional Democracy 25

“For Eagles to be Crows”

Andrew Wisniewsky

In 1876 Sitting Bull, a needed victory at the Battle

Lakota leader, undertook of Trenton. The General of

what would turn out to be the Continental Army was

a prescient protest against leading his own rebellion

U.S. westward incursion. He against a British enemy that

fasted for two days and two was described in J.T.Headley’s

nights; fifty pieces of flesh serialized biography of

were ritually sliced from Washington as possessing

his arms. He collapsed and “more unprovoked, useless

received a vision of American barbarity, more cold-blooded,

soldiers falling from their damning cruelty than was

horses, hats flying off their ever witnessed among

heads, as they were picked savages.”1 Washington had

off one by one. David Francis Barry, “Portrait of Sitting Bull” (1885); the support of his people
Gilbert Stuart, George Washington who were “aroused by the
A few months later, his vision atrocities committed by the
was realized. At the Battle of (The Constable-Hamilton portrait) (1794) Hessian and English troops.”2

Little Big Horn, U.S. General

George Custer and his five companies were slaughtered, His sneak attack, launched on the day after Christmas,

led into a trap by Crazy Horse of the Lakota. It would struck a garrison of Hessian troops, German

become the U.S. Military’s largest, most infamous defeat mercenaries hired by the British. These Hessians

during its conquest of Native lands. saw Americans as “barbarians and outlaws,”3 while,

for their part, the Americans viewed the Hessians as

Little Big Horn was the climactic battle of the Great violent tyrants hired by violent tyrants. The battle was

Sioux War of 1876, the last war of the U.S. plains. a rout; the only killer of Americans was frostbite as the

Conflict had sparked over the possession of the Black freedom fighters easily won the day. A century later

Hills, a mineral rich territory that promised the United however, American soldiers no longer were defending

States profitable returns upon acquisition. Already their homes from invasion but were hounding the

agitated over American encroachment in the Black Sioux relentlessly across their land, seeking to satisfy a

Hills, which had been marked as Sioux territory by the perpetual lust for expansion.

Fort Laramie Treaty of 1868, the Lakota people, who

were native and rightful owners of the land as members These two moments in the United States’ military

of the Great Sioux Nation, refused to negotiate a new history stand opposed to each other: freedom fighters

treaty in 1876. They had observed how the U.S. had in one case, conquering imperialists in the other.

“honored” its treaties with other tribes, and rather than Just as they sought to free themselves from what

submit to the U.S. Military and government’s whims, they considered tyrannical British rule in the 18th

Sitting Bull instead helped lead the Sioux nation in century, the Americans assumed the role of tyrants in

one last rebellion to prevent the unlawful and unjust the 19th century, invading lands to which the United

seizure of its land by the conquerors from the East. States had no legitimate claim in order to acquire

profitable mines and build the Northwest Pacific

Almost exactly a century earlier, George Washington Railroad. Moreover, U.S. territory had only reached

crossed the Delaware in an attempt to secure a much- that far West in the first place due to a string of broken

26 Kinder Institute

treaties, violent conquests of indigenous land, and discouragement, and held right on.”6 In contrast, Sitting
forced displacement of indigenous tribes. How could Bull led his people in the evasion of U.S. capture “like
a nation supposedly built on a foundation of freedom a frightened dog, hurr[ying] back to cover, content to
justify this rabid conquest? The answer: rhetoric. By
vilifying indigenous leaders, demonizing their actions, “I wish it to be remembered that
assaulting their culture, beliefs, and race, and declaring I was the last man of my tribe to
their own Manifest Destiny, American war hawks in surrender my rifle.” –Sitting Bull
office and the media attempted to justify the nation’s
actions to the public and, in doing so, absolve the spend his time in nurturing the savage instinct of his
United States of blame for its tyrannical subjugation of people.”7 The objective of the slanderous campaign
the Western Plains. waged against Sitting Bull becomes evident here.
Even putting aside the revolting dehumanization of
One of the great ironies of this transition from equating him with a dog, the language of an individual
tyrannized to tyrants is how incredibly similar Sitting “nurturing” his “savagery” is not simply derogatory
Bull was to America’s most iconic figure, George but casts him as a monumental threat to civilization—a
Washington. Both led their people in rebellion against threat against whom violent resistance was imperative
a wealthier, more powerful, more technologically to the well-being of Western culture.
advanced foreign power. Both were well-respected
by their people, known as stoic and brave, and able As I will examine in the following sections, this
to keep a “serene command.”4 Both were quite campaign against Sitting Bull was fueled by
skilled at evading capture and keeping the fight alive. misinformation, propaganda, and slander that
Washington famously escaped British capture in New violently targeted and demeaned him and his people
York by the skin of his teeth. A Lakota man, when in a variety of ways. Beginning with what will soon
told by a white reporter that Sitting Bull had been prove a relatively benign example of the untruths that
captured, commented: “I’d sure like a dollar for every the media spread, while the U.S. press credited Sitting
time I’ve heard that in the last six years, tenderfoot.”5 Bull’s victory in the Great Sioux War to the fact that
The similarities between these two men make the “his braves outnumbered our troops seven to one,”8
dichotomy of their depictions in the U.S. press all the reality was that the indigenous people fielded some
the more striking: Washington revered as a demigod; 900 warriors to the United States’ 2,500.
Sitting Bull reviled as a devil.
I. Race
The primary reason for this dichotomy is clear:
Washington helped the nation realize its desire for For those leading it, the use of race in the slanderous
independence, while Sitting Bull stood in the way of campaign against Sitting Bull was excusable because
America’s desire to expand. Because Sitting Bull’s cause, of Sitting Bull’s open hatred of the white man. When
methods, and style all were similar to Washington’s, a white trader who was married to one of Sitting
American war hawks could not easily justify waging Bull’s relatives once tried to contact him to make a
war against the moral equivalent of the nation’s great deal, Sitting Bull replied, “you know I will kill all the
hero. As a result, in order to justify war, they launched white men who come into camp.”9 Later, when Chief
an attack on the character and motivations of Sitting Black Moon of the Lakota signed a treaty with the
Bull, while artificially swelling the threat he posed to American government, Sitting Bull threw all the goods
America’s national security. Instead of a talented leader they had been given for signing the treaty into the
defending his home from foreign invaders, Sitting Bull river, screaming at the retreating U.S. representatives:
was painted as a hate-filled savage who would settle “This is the way I make treaties with white dogs, liars,
for no less than the destruction of white society. For and robbers!”10 He was notorious for his distrust
example, when Washington retreated from British of the white man, a feeling that was quite justified
forces in New York, he “stood up, in the midst of

Journal on Constitutional Democracy 27

considering the myriad instances of deception and of the “red man.” Moreover, there was a tendency to
violence he and his people had faced, among them the project this characterization onto his whole people, as
spark for this conflict: illegal American occupation of one writer does in explaining how:
the Black Hills, a gold-rich area of land occupied by
the Lakota for centuries. The press, ignoring those The subtle, sudden fury of the Western elements
reasons, instead used Sitting Bull’s openly voiced and the monotonous barrenness of large sections
hatred to whip the American people into a fearful of the Sioux lands have had some influence on the
uproar over a completely fictional, and logistically treacherous nature of this man who wielded such
impossible, invasion of American territory by the power over people.12
Sioux. In 1879, for example, the Christian Advocate, a
Power over people” is indicative of the kind of language
that was key to the press’ attempts (a) to paint Sitting
Bull as a super villain of sorts—a deceptive tyrant who
could spread his “hatred of inconceivable rancor”—
and, in turn, (b) to justify the use of violence not only
against him but also against all Sioux and whoever else
inhabited their lands. Sitting Bull was made out to be a
cancer and an aggressor, as if he were the one invading
United States territory, when in fact the opposite was
true. Rather than an aggressor, Sitting Bull was a threat
to the United States only because he held the power

Von Bern, “Sitting Bull and Buffalo Bill in Montreal” (1884); D.F. (David Francis) Barry, “Sitting Bull’s Family” (1891);
Gilbert Stuart, “George Washington- The Munro-Lenox Portrait” General George Washington and his family (date unknown)

(1800)

popular periodical, declared that Sitting Bull “hates
(us) with an inconceivable rancor.”11 Not only does
the Advocate hide from the public consciousness all
the things Sitting Bull was actually fighting for: the
safety of his people, the protection of his lands, and
the preservation of his forefathers’ way of life; with
language like “inconceivable rancor,” it also falsely
paints Sitting Bull as a threat to American existence so
unprecedented that he would plague the nation until
America was destroyed or he was dead.

In the next quote, we again see how the press’ goal was
both to misdirect public opinion away from why Sitting
Bull was really fighting and to falsely present him as a
threat so great that the nation had no choice but to
resort to violence. While American forces were in the
process of unjustly invading his home, he was not only
presented as a supreme evil but one who personified
the treachery, cruelty, and (ironically) the tyranny

28 Kinder Institute

to mobilize the Sioux in justified defense of their own The Christian Advocate, for example, noted how “his
land (the power, that is, to thwart the United States’ judgment is said to be superior to his courage, and
imperial efforts). his cunning was superior to both.”13 Dialing back the
praise, the article went on to add how he was well
The above description of Sitting Bull also demonstrates studied in military strategies but only so that he “might
a new dimension of the lengths that the press went to more intelligently wipe [white society] from the face
in order to manufacture justification for why the Sioux of the earth.”14 Which it to say that it was necessary
needed to be violently repelled: because their collective for his merits to be recognized only so people would
character was tied to the lands they called home. In fear his savagery even more and thus support armed
American eyes, they were tainted by their time living conflict against him. Sitting Bull had, according to
outside white civilization: enemies not only because of the press, backed America into a corner, and this
their inherently “treacherous nature” but also because demanded that the nation brace for and willingly accept
of how this nature was stoked by their culturally and conflict’s imminence.

“The means of defence agst. foreign danger, have been always the instruments of
tyranny at home.” —James Madison

geographically “barren” environment. In American This strategy worked. At the time of Sitting Bull’s
eyes, it was impossible for the Sioux to be peacefully capture, he was loathed and feared, and “most of
reasoned with because they were susceptible to the the men [present], remembering his part in Custer’s
tragedy, would have been delighted if there was an
implicitly negative attenuate on the man’s life.”15 In February 1891, about
influence of the a year after his death, a New York man had obtained
“elements” of the one of Sitting Bull’s prized saddles in a frontier trade.
plains; violence The New York Times ran an article on it, describing
was necessary, the saddle as “once the property of the late, but not
that is, because lamented, Sitting Bull.”16 The writer then urged the
they had become man to rid the city of such a relic “in view of the
irreversibly horrible and unparalleled atrocity which [Sitting Bull]
poisoned by the had committed.”17 The smear campaign had been a
devilish wilds they rousing success, and as contemptible as it is on its own
called home. (de)merits, it becomes even more despicable when you
consider the ulterior motive for this violence, and why
Ironically, the press it was being obscured (see Section IV).
would occasionally
compliment Sitting II. Religion
Bull as a way of
further inflating Americans went beyond fashioning Sitting Bull and
Western society’s the Lakota as a threat. To further justify their actions,
fear of his prowess, they made all indigenous people appear as uncultured
further justifying the savages who did not possess enough humanity to make
need for violence claims to land destined to be a part of the United States.
against him. Perhaps the most effective method for doing so was by
critiquing their religion. The mid- to late-nineteenth
James Otto Lewis, “The Pipe Dance and the Tomahawk Dance” century was a time of great Protestant fervor in the
United States, and both Protestants and Catholics
(1825); “Dinner [held by] First and Second Companies Governor’s

Foot Guards [at] ‘Hotel Somerset, Boston, MA (HOTEL;)’”

(1906)

Journal on Constitutional Democracy 29











When a Fox Guards the Hen
House: Rhetoric in Campaign
Finance Reform

Lindsay McManus

With their overall trust in elected officials and political I.
processes reeling after Watergate, American citizens,
working more than ever with and through the media, 1907: The Progressive Era had successfully weakened
challenged the federal government to initiate various political parties but not necessarily the influence
reforms to become more ethical and transparent. corporations had over elections. The first piece of
The appeal was so successful that the media and its campaign finance reform to address this influence by
private owners informally came to be known as the asking (and ruling on) the question, “are corporations
fourth branch of government. While the media’s rise people,” the Tillman Act outlawed all types of direct
in prominence allowed investigative journalism to and indirect corporate influence on (read: monetary
become a watchdog for the American people, it also contribution to) any federal campaign or sitting
gave an influential platform to large private media office holder.
conglomerates that had their own biases. With the
rise of this new way of pushing the agendas of political 1940’s: Political action committees (PACs) emerged as
candidates and parties, private money has followed. did weak campaign finance laws such as The Hatch Act
and The Taft-Hartley Act (a relationship that continues
This essay will examine the implications of this to rear its head in the present). These laws were
relationship between money and electoral politics supposed to give Congress power to limit contributions
through the lens of campaign finance and ethics (or to and expenditures during congressional elections, and
lack thereof) in the state of Missouri. To do so, however, they outlawed both labor unions and corporations from
requires providing some background on major federal becoming involved in Federal elections. Ultimately,
campaign finance-related acts and court cases from these two acts were not only predictably unpopular but
the past century and the issues and questions that they also wildly unsuccessful, given that they provided no
addressed and raised. framework for their own enforcement.

“donors were mainly corporations, unions, 1971: The Federal Election Campaign Act (FECA) of
political actions committees, and other 1971 instituted stringent disclosure requirements for
federal candidates, political parties, and political action
large contributors, leading to charges that committees. Legislators had hoped that disclosure
these gifts were influencing elections in requirements would cause candidates to give more
corrupting ways” thought to the interests behind their contributors, for
fear of public scrutiny, but, like its 1940s predecessors,
—American Constitutional Law: this legislation was nearly impossible to enforce
Essays, Cases, and Comparative Notes without central administrative authority.

(2009) 1974: Given its shortcomings, legislators amended
the 1971 FECA to tighten and centralize reporting
protocols in order to more authoritatively enforce
limits on campaign contributions and expenditures.

Journal on Constitutional Democracy 35

Edmund Valtman, “I want to make it perfectly clear that national 2002: Acknowledging that the unlimited soft money
faucet created by Buckley necessitated further reform,
defense requires 18-cent oil.” (1970) the McCain/Feingold Act prohibited national parties
and federal candidates from soliciting soft money
1976: A group of senators and special interest groups contributions; prevented state and local parties from
challenged the constitutionality of the amended FECA using soft money in support of federal candidates;
in Buckley v. Valeo, arguing that the statute violated disallowed issue advertising on behalf of federal
First Amendment rights. The Supreme Court upheld candidates within 30 days of primaries and 60 days of
the act’s contribution limits but overturned limits on general elections; and prevented donations by labor
expenditures by individuals, groups, and candidates, unions, corporations, and individuals to political parties.
ruling that “restrictions on expenditures are a
substantial and direct restraint on the quantity and 2010: In a destructive and embarrassing blow to the
diversity of free speech.” campaign finance reform initiated by the McCain/
Feingold Act, the Supreme Court ruled in Citizens
1988-2000: Using a loophole created by Buckley, special United v. Federal Election Commission that “The
interest groups tied to candidates found a way around First Amendment protects the right to free speech,
FECA restrictions by increasingly using soft money, [regardless of] the speaker’s identity.”2 Among other
which is not earmarked for specific candidates and thus things, this enabled big money corporations with special
not subject to limitation. Soft money donations increased interests to create (without limit or restriction) mass
from $45 million in 1988 to $498.1 million in 2000, as electioneering propaganda, despite Justice Stevens’
more and larger PACs formed. As noted in American noting that “there are compelling governmental
Constitutional Law, soft money “donors were mainly interests to curb corporations’ ability to spend money
corporations, unions, political actions committees, and during local and national elections.”3
other large contributors, leading to charges that these
gifts were influencing elections in corrupting ways.”1 “there are compelling governmental
interests to curb corporations’ ability

to spend money during local and
national elections.”

—Justice Stevens

Central to this cycle of reform and retraction is a
debate regarding whether protecting the civil liberties
of donors actually denies voters their own civil liberty
to be protected from corrupt influence on government.
Opponents of campaign finance reform argue that the
amount of money spent by PACs only makes up 36
percent of total money donated to campaigns and does
not always equal a win. The foundational premise of
the counter-argument is that, while individual donors do
donate much more to candidates’ individual campaigns,
the donations made are not from one concentrated
source with its own agenda of private interests, as is
the case with PACs. Proponents of campaign finance
reform thus argue (a) that the capacity to spend far
more money than the average person gives PACs a

36 Kinder Institute

far greater political voice and, in turn, (b) that laws Answering the question of how we have let our state
designed to protect the rights of corporate entities and ethics laws reach this level—and subsequently analyzing
PACs present private interest groups with an ability what the consequences of our having done so are—
to buy and shape public opinion without regard for requires first examining how current state law puts the
the public good. Moreover, when a PAC-sponsored Missouri Ethics Commission (MEC), the organization
candidate is elected to office, the PAC then has a built- nominally responsible for regulating campaign finance,
in and outsized power to influence policy, votes, and in a position to fail.
lawmaking through the same deep pockets.
Tellingly, Missouri’s 2015 Guide to Ethics Laws is only
This reality raises a number of important questions about 28 pages long in total. Broadly speaking, its
that I will address in this paper: Why are lawmakers purpose is to give the Missouri Ethics Commission
writing their own rules (or lack thereof), and are a point of reference for enforcing statutes pertaining
these rules designed with the public good in mind? Is to candidates’ and elected officials’ behavior and for
campaign finance reform really an issue of individuals’ making these statutes transparent to citizens, public
and corporations’ civil liberty to freedom of speech, or officials, and their staffs. In large part the Guide
is it an issue of all citizens’ civil right to be protected focuses on predictable but still very important topics—
from corrupt influence on government? And, finally, campaign finance, lobbying, conflicts of interest, filing
is democracy at its strongest when several individual complaints, training, etc. Upon close examination, the
grassroots supporters rally behind a candidate? language with which it addresses these topics has very
little substance.
II.
In general, and as seen in the following quote, this lack
The federal government typically allows each individual of substance speaks directly to how the MEC is without
state to address these and other related questions with the authority necessary to put Missouri in a position to
its own election ethics laws. State governments, in uncover and eliminate corruption in state politics and
turn, generally follow the precedents that the federal elections. In describing the MEC’s primary tasks, the
government has established with regard to imposing Guide states how the Commission
contribution limits in particular, typifying the
conventional wisdom that the root of corruption lies in is charged with enforcement and retention of
who gave the gift and how much it amounted to, rather information and reports related to conflict of
than in how that money was spent. An exception to this interest laws relating to public officials and
rule of thumb is Missouri, where our ethics laws are not employees; lobbyist reporting laws; personal
simply far worse than the federal government’s; they financial interest reporting laws; and campaign
more or less do not exist. Today, Missouri is the only finance disclosure laws. 5
state that allows the “trifecta” of no limits on campaign
donations, no restrictions on gifts from lobbyists, The use of the word “enforcement” is particularly
and no rule regarding a waiting period before public deceptive when we consider how the task that follows
officials can become lobbyists. it, the “retention of information,” limits the scope of
the MEC’s authority to that of a passive information
“Missouri State Capitol [2]” (c. 1860) manager. As the next quote makes even clearer what
the MEC actually is charged with enforcing is entirely
bureaucratic: essentially that records are kept and
deadlines are met. “Campaign finance disclosure is
required,” the Guide reads:

when individuals, groups, and entities receive
money (contributions) and/or spend or incur
money (expenditures) to support or oppose a
candidate or ballot measure. The law requires

Journal on Constitutional Democracy 37

record keeping and, in most instances, reporting III.
of this activity. The purpose for these disclosure
requirements is to provide accountability, The need to impose stricter campaign finance guidelines
transparency and enforceability.6 certainly has come up in recent decades, both in the
Missouri state legislature and Missouri Supreme Court.
Again, the language used in the Guide is truly deceptive. At the same time, an overview of the history of campaign
While terms such as “accountability,” “transparency,” finance reform in the state shows that, despite having
and “enforceability” give the impression that the state the worst state ethics laws in the country, Missouri has
has strict guidelines when it comes to demanding failed for years to uphold any progressive reform that
ethical behavior from candidates and lobbyists—and, was initiated in the legislature or courts. Just as we
moreover, that the MEC has a significant amount of saw with the federal government, any step forward in
leverage when it comes to enforcing these guidelines— the state is typically met with two steps back. And the
this isn’t at all the case. What is conspicuously absent, same controversy between freedom of speech and the
here, is any discussion of the actual limits or restrictions civil right to protection from corrupt influence on
that are placed on the amount of money candidates can government takes center stage as the state government’s
receive from individuals and groups and, in light of own attempts to weed out corruption are retracted.
their absence, any discussion of the need for an agency
that has power to create and enforce such limits and ACT 1: A Star-Crossed Beginning
restrictions that are necessary to maintaining ethical
“accountability and transparency.” This establishes the In 1974, Missourians passed The Missouri Campaign
impotence of the MEC in an almost circular way: on Finance and Disclosure Law (CDFL), which, much like
the one hand, in the current environment, the MEC has the 1974 amendment to FECA, created contributions
nothing of substance to enforce, leaving it with little to and expenditure limits and required candidates to
do but act as a bureaucratic agency; at the same time, file disclosure statements—a development that,
because it was designed specifically to keep records and thinking back to the prior section, would seem to have
ensure that deadlines are met, the MEC likewise lacks empowered the MEC (if it had existed back then) by
the jurisdiction necessary to introduce the kinds of laws giving the agency something of ethical substance to
that might change the current environment. The state enforce. Years later, however, following the lead of the
of Missouri will only gain ethical standards when the U.S. Supreme Court ruling, the Missouri Supreme
MEC has guidelines to enforce or the power to create Court ruled the Campaign Finance and Disclosure Law
them. In the meantime, when an ethics agency has unconstitutional, using the same argument concerning
nothing substantive to regulate, corruption is invited. free speech protection and First Amendment liberties
as in Buckley v. Valeo.
The state of Missouri will only gain
ethical standards when the MEC has The political maneuvering that came after the Missouri
guidelines to enforce or the power to Supreme Court’s decision to roll back the CFDL shows
create them. In the meantime, when an how willfully negligent the state has historically been
ethics agency has nothing substantive to when it comes to addressing the need for more effective
ethics regulations. Commenting on the decision and its
regulate, corruption is invited. aftermath in his essay “It All Adds Up: Reform and the
Erosion of Representative Government in Missouri,
1900-2000,” Kenneth H. Winn describes how, “in
a six-to-one decision, the Missouri Supreme Court
agreed [that the CFDL was unconstitutional] and
the state returned to the basic [campaign ethics] law
first enacted in 1893. In 1978, the [state] legislature,
sensing the resilience of the desire for campaign finance
reform, passed a greatly watered-down bill that had lax

38 Kinder Institute

















it requires the assessment that there is no probability like the criminal, should be separated from society.
for improvement. Again, this step vests great (and Moreover, and tying back to the issue of authority and
greatly subjective) authority in the advisers and power structures, by evoking language that seems to be
medical board to make such an assessment, and it again procedural and medically sound, this legislation makes
also makes significant claims about personhood. A it easy for general citizens to approve these forms of
lack of improvement means a lack of ability to reason disenfranchisement rather than question the deviant
effectively, to make independent decisions, and to serve label as it was being applied.
as a rational actor. Without these skills, this legislation
calls into question whether an individual is actually a Fully understanding the relationship between Becker’s
person at all. It questions their capacity, and as we will theory and the disenfranchisement of the mentally ill
explore later, it is a general lack of capacity that drives also requires a careful look at its relevance to the pre-
the conclusion that individuals are unlikely to be fit for history of this legislation. In order to pass legislation
reproduction. A lack of personhood is equated with that labels others as deviant, the individuals who wrote
disenfranchisement through sterilization. the legislation must have already believed those deviant
labels to be true or otherwise stood to benefit from the
This legislation passed.There were certainly opponents application of the label.So while the eugenics movement
to it, such as state legislator Thomas Marshall, who may very well be the height of disenfranchisement for
two years later would declare a moratorium on the the mentally ill, to get to this point, politicians and
continued sterilization.7 But in spite of protest, other individuals in power would have had to work to
continued forced sterilization of institutionalized create, maintain, and pass down the deviant label. This
patients would proceed on and off for years because of a means years of political action that first defined mental
rhetoric that left the basis or sterilization unchallenged illness in a way that disenfranchised those individuals
and the power structure that determined and applied to whom the definition applied by depriving them of a
this basis unchecked. The Indiana legislation is notable variety of rights they would have otherwise held.
not only because it is the first of its kind but also
because it would go on to inspire Harry Laughlin, a In order to get a sense of this backstory, we will consider
strong advocate for negative eugenics, to compose his examples of relevant sources that came before the
1914 model eugenics law that would later be adapted 1907 Indiana law: firstly, an 1876 document published
and deemed constitutionally sound by 18 states.8 To by the Association of Medical Superintendents of
understand how this legislation, with all the flaws American Institutions for the Insane (the Association)
outlined above, “succeeded,” we must return to the which lays out the legal restriction of rights for the
relationship between language, power, and persuasion mentally disabled more than 30 years prior to the
at the heart of Becker’s study. Perhaps most important eugenics movement and then going back slightly
is that the language was issued by those whose position further, newspaper references that give examples of
of power engendered implicit public trust, thus the general language used to describe mentally ill
allowing their words and thoughts to go unquestioned individuals. Particularly with regard to the latter,
and their authority to go unchallenged. Beyond this, colloquial language can be quite revealing in so far as
the language used in constructing the deviant label is it creates the kind of dichotomy observed in the prior
careful to create what Becker calls a dichotomous form example and thus helps individuals remove themselves
of thinking that can be used to justify ostracizing those from associating with and even humanizing those in
to whom the label applies. Though the legislation does the deviant subgroup, effectively “permitting” them to
not explain what mental illness is, by associating it stand by as the deviant group becomes disenfranchised.
with deviant criminality, and by leaning on an already
clear distinction between criminal and non-criminal, Questions regarding the proper treatment of mentally
it promotes the idea that an individual with a mental ill communities had been a topic of discussion long
illness is unlike the average citizen—someone not only before Indiana lawmakers brought it to their agenda.
different but someone almost inhuman; someone who, In 1844, a group of gentleman concerned with
creating universal standards of treatment for the

Journal on Constitutional Democracy 47

mentally ill community gathered in Philadelphia to believ[ing] that these utterances of opinion,
create a set of standards that, considered today, reveal based as they are on the most varied and enlarged
troubling ideas about how to manage institutionalized experience, may be valuable to others than its
populations. These men believed themselves motivated members, the Association, at its meeting held in
by benevolence and, blind to their patients’ personal Philadelphia, in June 1876, appointed a committee
autonomy, felt that they could determine what was to collect the same, and to have them printed for
universally best for them without consultation. the use of those who are interested in securing
This group became The Association of Medical the best provisions for and the most enlightened
Superintendents of American Institutions for the treatment of the insane.”11
Insane. Evidence of the Association’s opinion of itself,
Dr. Francis T. Stribling, a charter member, wrote in In this opening statement, the Association asserts its
a letter shortly after the Association’s founding that expertise and authority in a manner that immediately
the organization’s work had “secured to the American gives (or at least should give) the reader cause to
asylums for the insane a reputation and a confidence call this authority into question. What they tout is
which the heretofore boasted of institutions in Europe “opinion” guised as valuable because of experience, a
cannot afford to look down to.”9 claim that betrays their authority’s terribly subjective
basis. While the Association presents these opinions
Before examining a pamphlet produced by the as facts to be modeled, the opinions come only from
Association containing its guiding ideas on the inside sources. Moreover, because the document is not
treatment of mentally ill individuals and the proper audited by anyone outside the Association, there is no
care of their respective facilities, it is important to authority or policy for challenging the assertions made
frame this examination within the context (a) of how within it. They are validated for propagation and use
the Association was founded on an unchecked power only by the “enlightened” individuals who asserted
structure similar to what was seen in Indiana and (b) them as valuable.
of how this foundation made the disenfranchisement
of the mentally ill possible (both at the time of the Equally troubling here is the language used to
pamphlet’s publication and going forward). As some describe the intentions of the individuals acting as
of the first United States doctors to begin looking part of this Association. According to this document,
critically at the treatment of mentally ill individuals, the the Association exists in order to deem what is best
physicians that served on the board of The Association for the mentally ill, but it does so without their
self-selected themselves as ultimate authorities on consent, thus positioning the mentally ill community
the topic, and they were in turn implicitly trusted in as infantilized actors without free will. Because these
the American eye because of the organization they individuals are, through language, shaped as being
created. As a result, their authority was not challenged. unable to care for themselves, their disenfranchisement
Additionally, it seems from Stribling’s language in the comes to be viewed as a reasonable exercise of
above quote that the formation of the Association was power—not exploitative on the Association’s part but
rooted in promoting the United States’ proficiency insteadevidence of the benevolence they superficially
relative to its European counterparts, a motivation that lay claim to.
both speaks to the authority in which the Association
shrouded itself and calls into question the degree to After establishing the basis for its power, the Association
which it was driven by a desire to provide genuine care then lays out a list of rules regarding who may serve
for the mentally ill. on the governing bodies for insane institutions. The
document says all power should be consolidated in
In 1876, the Association published an updated version the hands of a board of trustees. The board, in turn, is
of their propositions and resolution.10 The document responsible for picking physicians who the document
states its purpose early, noting that members of later specifies will have ultimate authority to make
the organization decisions about the sentencing, treatment, and often
times freedom of those deemed mentally insane.

48 Kinder Institute