Journal on Constitutional Democracy

Cover: Thomas U. Walter, “Elevation of Dome of U.S. Capitol,”
1859 Ink and Water Color on Paper, bequeathed to the Library of Congress by Ida Walter, 1915.

From the students of
the Kinder Institute on Constitutional Democracy’s

inaugural Society of Fellows
to our professors and mentors, especially
Dr. Justin Dyer, Dr. Jeff Pasley & Dr. Carli Conklin



Journal on Constitutional Democracy
2014-2015 Editorial Board

Editor-in-Chief
Anurag Chandran

Content Editors
Julian Douglass

Trey Sprick
Emily Waggoner

Copy Editors
Samantha Franks (co-lead)

John Tsikalas (co-lead)
Lauren Herbig
Jack Meyerhoff

Caroline Spalding
Peter Zekert

Design – Art and Quotations
Conor Fagan (lead)
Nathanial Brose
Bishop Davidson
Tia Paulette

Design - Layout
Camille Hosman (lead)

Fritz Autry

Marketing
Samuel Dicke (lead)

Zachari Sweets

Mizzou Media Liaison
Matthew McKeown



JOURNAL ON CONSTITUTIONAL DEMOCRACY
Democracy: Within & Beyond

Table of Contents
Introduction to the Journal
by Dr. Carli Conklin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Note from the Editor
by Anurag Chandran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Introduction to Democracy: Within & Beyond
by Dr. Justin Dyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Within
The Spirit of ’76: Self-Governance
by Bishop Davidson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A Question of Representation
by Trey Sprick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Supreme Court and its Role in the American Democratic Experience
by John Tsikalas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
The Right to Bear Arms in a Contemporary World
by Matthew McKeown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
A Woman’s Vote
by Samantha Franks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Beyond
The Source of American Exceptionalism
by Samuel Dicke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Democracy and Foreign Relations in Early America
by Nathaniel Brose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Justifying Imperial Policy in the American Republic
by Conor Fagan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
America and Democracy in a Post-War Era
by Julian Douglass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

What Would Happen If Puerto Rico Joined the Union?
by Fritz Autrey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Image Credits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Close-up view of the Statue of Freedom (1993). The Statute of Freedom had been in place
for nearly 130 years when it was temporarily removed from the dome by helicopter in 1993

for restoration work. The Statue of Freedom has since been returned to the dome of the
U.S. Capitol building.

1 Walter, Thomas Ustick, Architect. Elevation of dome of U.S. Capitol. 1859. Image. Retrieved from the Library of Congress, https://
www.loc.gov/item/2005695752. (Accessed March 14, 2016.)
2The following history of the Capitol dome is summarized from accounts included on the Architect of the Capitol’s website
https://www.aoc.gov and the U.S. Capitol Visitor Center website https://www.visitthecapitol.gov/about-capitol/evolution-
capitol. For the history of the Capitol dome, please see, https://www.aoc.gov/capitol-buildings/capitol-dome. For the history of
the Statute of Freedom, please see https://www.aoc.gov/capitol-hill/other-statues/statue-freedom.

6 Kinder Institute

Introduction to the Journal on Constitutional Democracy

Dr. Carli Conklin

During the 2014-15 academic year, I had the immense pleasure of supervising our inaugural Society of Fellows class
as they envisioned, and then completed, the first volume of the Kinder Institute on Constitutional Democracy’s
student-edited Journal on Constitutional Democracy. Under the leadership of student Editor-in-Chief Anurag
Chandran, the Fellows selected a theme; wrote, revised, and edited essays; located relevant political cartoons,
photographs, works of art, and quotations to accompany those essays; and then combined each of these moving
parts into one cohesive layout. Their creativity, collaboration, and sheer commitment to completing the task at
hand was both admirable and inspiring. The Journal is the result of their efforts.

A photograph of the U.S. Capitol building was among the ideas that the students had suggested for cover imagery.
While searching for possible images, we came across Philadelphia architect Thomas U. Walter’s pen and ink
drawing of the U.S. Capitol building.1 Captivated by the image, I researched its history and learned the following. 2

The first dome of the U.S. Capitol, designed by Boston architect Charles Bulfinch and completed in the 1820s,
was a fire hazard and, by the 1850s, had become ill-suited to the proportions of the newly-enlarged Capitol
building. Thomas Walter, architect for the House and Senate wings of the Capitol, sketched his vision for a larger,
cast iron dome. In December 1854, Walter hung that sketch in his office, where it caught the eye, and favor, of
Senators and Representatives visiting his office. Within three months, President Franklin Pierce signed legislation
commissioning a new dome, to be built on Walter’s design.

Completion of Walter’s vision, however, took considerable time and effort. Although Bulfinch’s dome was removed
in 1856, Walter’s new dome would not be completed until 1866. Much of the delay centered on the statue crowning
Walter’s sketch. American sculptor Thomas Crawford created a statue that was much larger than Walter had
envisioned, requiring Walter to alter both the height of the dome and the platform for the statue. Walter used
these changes as an opportunity to make improvements to the interior of the dome, as well. For the exterior,
Walter’s sketch had depicted a statue of freedom holding a liberty cap. Crawford modified the statue so that the
figure wore the liberty cap instead. Then-Secretary of War Jefferson Davis, who was in charge of the Capitol
construction projects, objected to the liberty cap. Crawford drew a third version, replacing the liberty cap with a
crested Roman helmet that combined stars with the imagery of an eagle with feathers, evoking Native American
dress. Construction of the Statue of Freedom was completed in late 1863. The interior of the dome was completed
three years later.

Walter’s pen and ink drawing memorializes changes made to the building that houses Congress, one of our most
democratic institutions. The new Capitol dome came to completion through an initial vision, a vote to move forward
with that vision, the resolution of problems and conflicting ideals, agreed-upon improvements and alterations, and
the talents and contributions of many. It is a process that sounds a lot like constitutional democracy.

I was as intrigued by the story of the dome as I was inspired by the work of our student editors in bringing to
completion this first volume of the Journal on Constitutional Democracy. As you explore their theme—Democracy:
Within and Beyond-- in the pages ahead, I hope you will consider the concept of constitutional democracy, anew,
and be intrigued and inspired, as well.

Journal on Constitutional Democracy 7

8 Kinder Institute

Note from the Editor

Dear Reader,

The Journal on Constitutional Democracy is the culmination of a yearlong intellectual pursuit by the Society of Fellows,
a competitive undergraduate fellowship program at the University of Missouri. For an entire year, we explored,
researched, and analyzed the historical and philosophical foundations of American constitutional democracy. In
today’s political discourse, there is a tendency to rely heavily on opinion-driven arguments over fact-based ones.
By producing articles backed by primary sources, we intend to challenge belief-based discourse that bends facts to
fit personal narratives and creates confusion among the general public. The Journal will consist of excerpts from
primary source readings, brief summaries of these documents, and articles written by students that will interpret
the Constitution in light of today’s political environment. The beauty of the Journal is that it features not just one
voice, but a collection of voices that range in both political perspectives and interest areas.

If, during the summer of 2013, someone were to tell me that an idea of a student-produced journal would become a
reality, I would not have believed them. Today, almost two years since the conception of the idea, I am humbled by
the tremendous support that we have received in making this dream come true. All credit goes out to my team of
incredibly motivated fellow students who channeled their intellectual curiosity and passion for political discourse
into producing top-quality articles. This project would not have been successful without the dedication of our
faculty mentors whose guidance, patience, and encouragement allowed us to stay on track and pick ourselves up
when we ran into roadblocks. Dr. Justin Dyer has been the backbone of this journey, and I cannot thank him enough
for believing in this project and giving me the chance to lead the effort, after a fortuitous meeting in the summer
of 2013. Dr. Thomas Kane has been instrumental in the editing process, showing me the ropes and guiding me
with his expertise at every step of the way. However, if there is one single person without whom this project could
not have been completed, it is Dr. Carli Conklin. Dr. Conklin incorporated my proposal for the student-produced
journal into the Kinder Institute’s Society of Fellows program and undertook the responsibility of making the
Journal a reality. The end result is a product that I am incredibly proud of – one that far exceeded even my most
optimistic expectations.

The main goal of the Journal is to encourage debate and discussion about the Constitution. As such, I encourage
you to read our articles with an open mind - thinking about the ways in which our writers interpreted the primary
sources and if you would agree or disagree with them. I sincerely hope that you find the Journal as enjoyable and
informative to read as it was for us to create.

Yours truly,
Anurag Chandran
Editor-in-Chief

Journal on Constitutional Democracy 9

Introduction to Democracy:
Within and Beyond

Dr. Justin Dyer

10 Kinder Institute

American constitutional democracy presents a paradox. the Second Amendment “right of the people to keep
Our Constitution does not mention democracy, and many and bear arms.” Samantha Franks then highlights the
of our political institutions – the Senate and Supreme tension between the universal principles underlying the
Court, for example – are hardly democratic. Yet our American claim to self-governance and the historical
tradition also insists that government derives its legitimacy reality of hierarchical, hereditary, racial and sex-based
from the consent of the governed, which in practice means exclusions from participation in American electoral
the consent of the majority of the governed.And while our politics and civic life generally.
Constitution is written in the name of “We the People,”
still there are constitutional limits on what the people The remaining essays broaden the focus beyond
may lawfully do. Majority rule does not sanction majority America’s borders and explore issues related to foreign
tyranny; minorities retain rights that limit the reach even affairs. In the section’s lead essay, Samuel Dicke takes
of overwhelming majorities. up the idea of American exceptionalism, by which he
means a belief in both the moral superiority of American
Constitutionalism, marked by a commitment to the democracy and a correlative duty to spread democratic
rule of law, is thus not tantamount to democracy. And government abroad. Dicke connects this idea to
democracy, emphasizing the rule of the many, does Progressive-era foreign policy generally and the decision
not necessarily entail constitutionalism. The dynamic of the United States to enter World War I specifically.
interplay between the American constitutional and The democratic ideas afloat during the Progressive-era
democratic traditions is the inspiration for our student- have a history, of course, and Nathaniel Brose highlights
edited Journal on Constitutional Democracy. The articles the nascent seeds of American democracy in early
in the inaugural issue explore various facets of the Revolutionary-era diplomatic communications. Both
American experiment in self-government, and they look American democracy and the United States’ foreign
both within America to domestic politics and beyond to policy goal of spreading democracy abroad developed in
international affairs. tandem over time. Neither emerged fully developed at
the time of the American founding.
Bishop Davidson’s essay focuses on the importance of
self-governance in early American political thought. In Conor Fagan argues in his essay, however, that the idea
his research, Davidson uncovered a fascinating transcript of American exceptionalism and the goal of exporting
of remarks delivered at an 1894 dinner of the Sons of the American ideals abroad do have roots that reach
American Revolution. The speaker shared a first-hand into the founding generation. Borrowing Thomas
account of a conversation he had long ago had with Levi Jefferson’s memorable phrase, Fagan notes how many
Preston, a retired Army Captain who had described why have understood America to be an “Empire of Liberty.”
he fought at Concord in 1775. “Young man,” Preston While Fagan discusses the Monroe Doctrine and US
said, “what we meant in going for those red-coats was intervention in South America, Julian Douglass looks
this: we always had governed ourselves, and we always at the Truman Doctrine and American foreign policy
meant to. They didn’t mean we should.” Bishop sees in during the Cold War. Like Fagan, Douglass highlights a
this remark what he calls the “Spirit of ’76,” that is, an connection between policy and interest and argues that
emphasis on the right of self-government. there is often a tension between principles and practice
in American foreign policy. Finally, Fritz Autrey ends
But what is self-government? Practically, how does the discussion of American foreign engagement with a
it work? On this score, Trey Sprick focuses on the practical constitutional question, “What would happen
question of representation and revisits the arguments if Puerto Rico joined the Union?” The answer brings
of one of the Constitution’s most insightful critics, together all of the various threads woven throughout
the anti-Federalist essayist who wrote under the pen the journal: constitutionalism, democracy, idealism, and
name “Brutus.” John Tsikalas explores the role of the national interest. The essays are written from different
Supreme Court in the American political system, and methodological and theoretical perspectives, but what
Matthew McKeown enters the fray with a discussion connects them all is a deep interest in the ongoing
of the current constitutional controversies surrounding American experiment in constitutional self-government.

Journal on Constitutional Democracy 11

12 Kinder Institute

Within

Journal on Constitutional Democracy 13

The Spirit of ’76: Self-Governance

Bishop Davidson

Arthur Rothstein, “Franklin Delano Roosevelt Meets a North Dakota Farmer” (1936)

Self-governance is an often used, often misinterpreted state power. These selected documents and the brief
expression. Over the course of the United States’ analysis of their implications attempt to contribute
short history, concerns of self-governance have to unveiling the origins of American self-governance
accompanied, and continue to accompany, discussion and, consequently, its meaning.
about the relationship between individual freedom and

Remarks at the Dinner of the Sons of the American Revolution

(Concord, Massachusetts, April 19, 1894) by Mellen Chamberlain1

When the action at Lexington on the morning of the 19th was known at Danvers [city in Massachusetts],
the minute men there, under the lead of Captain Gideon Foster, made that memorable march—or run,
rather—of sixteen miles in four hours, and struck Percy’s flying column at West Cambridge. Brave but
incautious in flanking the red-coats, they were flanked themselves and badly pinched, leaving seven dead,
two wounded, and one missing. Among those who escaped was Levi Preston, afterwards known as Captain
Levi Preston.

When I was about twenty-one and Captain Preston about ninety-one, I “interviewed” him as to what
he did and thought sixty-seven years before, on April 19, 1775: and now, fifty-two years later, I make my
report—a little belated perhaps, but not too late I trust for the morning papers!

... I began: “Captain Preston, why did you go to the Concord Fight, the 19th of April, 1775?”

The old man, bowed beneath the weight of years, raised himself upright, and turning to me said: “Why
did I go?”

“Yes,” I replied; “my histories tell me that you men of the Revolution took up arms against ‘intolerable
oppressions.’”

“What were they? Oppressions? I didn’t feel them.”

“What, were you not oppressed by the Stamp Act?”

“I never saw one of those stamps, and always understood that Governor Bernard put them all in Castle
William. I am certain I never paid a penny for one of them.”

“Well, what then about the tea-tax?”

“Tea-tax! I never drank a drop of the stuff; the boys threw it all overboard.”

“Then I suppose you had been reading Harrington or Sidney and Locke about the eternal principles of
liberty.”

“Never heard of ‘em. We read only the Bible, the Catechism, Watts’s Psalms and Hymns,
and the Almanack.”

“Well, then, what was the matter? And what did you mean in going to the fight?”

“Young man, what we meant in going for those red-coats was this: we always had governed ourselves, and
we always meant to. They didn’t mean we should.”

And that, gentlemen, is the ultimate philosophy of the American Revolution. It correctly assigns its
underlying cause, it explains and accounts for the action of the patriotic party…For the attitude of the
colonists was not that of slaves seeking liberty, but of freemen—freemen for five generations—resisting
political servitude.

Journal on Constitutional Democracy 15

Analysis of Self-Governance Self-Governance: The Infrastructure for Inherent
The Spirit of ‘76 was self-governance. The primal and Inalienable Rights
urge to self-govern fueled the flames of the In the Declaration of Independence, the Founders
American Revolution; provided the fertile soil recognized and declared that among
in which the inherent rights of all humankind our inalienable rights are life, liberty, and the pursuit
could take root and eventually flourish upon the of happiness. These are the ends to which
American continent; and, when properly applied, was all people are entitled. However, one must pay
responsible for shaping, instituting, and providing homage to the means whereby these ends are best
both consent and oversight for a government designed given substance. Self-governance is that means. In
to preserve these inherent rights. By revisiting the “The Rights of Colonists as Men,” Samuel Adams
significance of self-governance in American history, realized these most basic human rights emanated
the Spirit of ‘76 might yet again surge. from the rightsbearers themselves, declaring that
individuals’ ability to “support and defend [these
Self-Governance: The Impetus for Revolution rights] in the best manner they can” was a corollary
The oppressions of a far-off empire were resisted not of the first law of nature. This ability to self-
only (or even primarily) because of offensive policy, procure and maintain these rights is so essential
but also because of principle. Four hundred forty-two that Adams declares a corporate forfeiture of this
days before the Signers laid a national foundation ability something of a logical impossibility: an act
of self-governance with a declaration of words, the of “renunciation” that “the eternal law of reason”
people asserted the need for such a foundation with would immediately “vacate.” Clearly, self-governance
action. The testimony of an aged minuteman gives is the very infrastructure on which our inalienable
light to the people’s motivations for entering the war. rights are sustained, a conclusion reaffirmed by the
Many of those who fought and died were like Captain Declaration of Independence’s emphasis on “consent”
Levi Preston. While they may not have known the as fundamental to the establishment of a productive,
nation’s early political literature or philosophical rights-preserving government.
origins, they embodied the Spirit of ‘76. When
asked whether figures such as Harrington or Sidney Though in different ways than the authors and signers
influenced his conception of liberty and his drive for of the Declaration, Thomas Paine demonstrates that
revolution, Preston answered in the negative: this self-governing infrastructure does not preclude
the need for civil government. In Common Sense, Paine
“Never heard of ‘em. We read only the Bible, the refers to government as a “necessary evil”—“necessary,”
Catechism, Watt’s Psalms and Hymns, and the not “evil,” being the operative word here. For Paine,
Almanack…Young man, what we meant in going government was born of two conjoined truths: 1) we
for the red-coats was this: we always had governed are flawed; and 2) there must be a structure instituted
ourselves, and we always meant to. They didn’t to secure our basic rights in light of our flaws. While,
mean we should.” in Common Sense, this security was provided by
governmental acts designed to restrain citizens’ vices,
As made evident in the quote above, in accordance for the Framers, it was the product of a government
with the prevalent belief in natural law but also in a designed to protect and promote citizens’ realization
way that transcended the Founders’ “bookishness,” of a right to pursue happiness. As I will demonstrate in
men and women like Preston thought their inherent the next section, however, in both readings, it stands
authority to govern themselves had been challenged to reason that the reach of civil government will be
and that they therefore possessed the right and duty inversely proportional to the general level of self-
to fight back. And while they left the task of formally government exercised by the body politic.
translating the Spirit of ’76 into national law to
leaders like Jefferson, their revolutionary obligation
and actions were the essence of self-government.

16 Kinder Institute

Samuel Adams’ “The Rights of the Colonists as Men”2

(From the Committee of Correspondence to the Boston town meeting, November 20, 1772)

Among the natural rights of the colonists are these: First, a right to life. Second, to
liberty. Thirdly, to property; together with the right to support and defend them in the best
manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation,
commonly called the first law of nature ... Every natural right not expressly given up, or from the nature of
a social compact necessarily ceded, remains. All positive and civil laws should conform, as far as possible, to
the law of natural reason and equity ... In short, it is the greatest absurdity to suppose it in the power of one,
or any number of men, at the entering into society, to renounce their essential natural rights, or the means
of preserving those rights; when the grand end of civil government, from the very nature of its institution,
is for the support, protection, and defence of those very rights; the principal of which, as is before observed,
are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up
any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate
such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to
alienate this gift and voluntarily become a slave.

Thomas Paine’s Common Sense: Beginning two paragraphs, “Role of Government”3

(1776)

Some writers have so confounded society with government, as to leave little or no
distinction between them; whereas they are not only different, but have different origins. Society
is produced by our wants, and government by our wickedness; the former promotes our
happiness positively by uniting our affections, the latter negatively by restraining our vices. The
one encourages intercourse, the other creates distinctions. The first is a patron, the last a
punisher. Society in every state is a blessing, but Government, even in its best state, is but a
necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the
same miseries by a government, which we might expect in a country without government, our
calamity is heightened by reflecting that we furnish the means by which we suffer. Government,
like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the
bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed,
man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part
of his property to furnish means for the protection of the rest; and this he is induced to do by the same
prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security
being the true design and end of government, it unanswerably follows that whatever form thereof appears
most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.

The Declaration of Independence4 (In Congress, July 4, 1776)

We hold these truths to be self-evident: That all men are created equal: that they are endowed by their
Creator with certain inalienable rights: that among these are life, liberty, and the pursuit of happiness: that,
to secure these rights, governments are instituted among men, deriving their just powers from the consent of
the governed: that whenever any form of government becomes destructive of these ends, it is the right of the
people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and
organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Journal on Constitutional Democracy 17

Self-Governance: The Inverse of [of government] thereof appears most likely to ensure

Civil Government [security] to us, with the least expense and greatest

Despite working in tandem to secure our inalienable benefit, is preferable to all others.” Because, for Paine,

rights, self-government and civil government maintain government is produced “by our wickedness” and

a dynamic tension. In theory, the truly self-governed “promotes our happiness negatively by restraining

individual is in less need of statutory guidance from our vices,” inasmuch as a people display vice, therein

a civil institution. Such a person is determined the strength of its

merely needs government to civil government. As vice—to

secure his or her fundamental one degree or another—will

rights and wherewithal to actualize always manifest in individuals, it

them—a condition due in large was never a question for Paine

part to such a person’s awareness or the Founders of whether civil

of these rights’ universality and, government would exist. Rather,

in turn, his or her willingness to the question became: what

promote the universal preservation will be the breadth of that civil

of these rights in the same manner government? Drawing from these

that a government might. In many documents, it is reasonable to infer

ways, and as mentioned above, that the Founders believed that

the Declaration of Independence the power of civil government

expresses faith that the people would necessarily be inversely

would design, implement, and proportional to the government’s

perpetuate a government that not ability to promote virtue and, in

only mirrors but also produces doing so, to cede the power of

the ideals of the theoretically self-governance to its constituents.

self-governed person described Honore Daumier, “Caricature of Alexis With this, practical application

above. At the same time, though, Henry De Tocqueville (1849) dictates that we ask a final and

the Founders urged diligence most salient question: What is

lest any government fail in this the current state of virtue and, in

mission, and they took care to task the governed virtue, self-governance within our union?

with actively resisting their government in such an

occurrence. Samuel Adams continues this strand of

thought in declaring how, “[e]very natural right not 1Chamberlain, Mellen. 1898. John Adams, the

expressly given up, or from the nature of a social Statesman of the American Revolution: With Other

compact necessarily ceded, remains. All positive and Essays, and Addresses, Historical and Literary.

civil laws should conform, as far as possible, to the Harvard University: Houghton, Mifflin.

law of natural reason and equity.” By stating how 2Adams, Samuel. 2012. “The Rights of the Colonists
the common intention of civil laws is to maximize as Men.” In The Constitution of the United
the rights and individual freedoms that remain when States of America: And Selected Writings of the
individuals enter into the social contract, Adams Founding Fathers, Compilation by Barnes &
makes clear how, even in acknowledging that certain Noble, Inc. New York: Barnes & Noble, Inc. 19-23.
liberties must be ceded to it, the Founders imagined
a government that would (or at least could) be 3Paine, Thomas. 2012. “Common Sense.” In The
limited in strength and scope because of a natural Constitution of the United States of America:
commitment among the people to a principle of And Selected Writings of the Founding Fathers,
equity. Thomas Paine elaborates further by asserting Compilation by Barnes & Noble, Inc. New York:
that, while necessary, civil law must also be limited in Barnes & Noble, Inc. 127-172.

its scope: “it unanswerably follows that whatever form

18 Kinder Institute

A Question of Representation

Trey Sprick

Denar (Brutus-Denar), Allgemein from the Berlin State Museum
I.

In his November 15, 1787, “Anti-Federalist III,” Brutus This was not an argument of principle alone;

(likely New York Associate State Supreme Court Brutus also discussed the practical consequences of

Justice Robert Yates) challenged the claim that the new the unrepresentative government he anticipated.

Constitution outlined adequate means for guaranteeing “According to the common course of human affairs,

equal representation in the federal government. the natural aristocracy of the country will be elected”—

In addition to a harsh critique of the Three-Fifths an aristocracy, Brutus added, that “will be ignorant of

Compromise and the the sentiments of

structure of the Senate, Those who own the country ought to govern it the middling class of
Brutus singled out citizens, strangers to

a number of factors ~ John Jay their ability, wants,
compromising the and difficulties, and

democratic integrity of the House of Assembly (what is void of sympathy, and fellow feeling.” As Brutus makes

now the House of Representatives). His first contention clear in his vision of a government estranged from the

reflected a worry that all classes of (white male) workers “wants” of and devoid of “sympathy” for the “middling

would not be represented in the new government. “The class,” the rise to power of the wealthy would come at

house of assembly,” Brutus wrote, the expense of the interests of the laborers who made

which is intended as a representation of the up a majority of the nation’s voters. His argument,
people of America, will not, nor cannot, in the however, is not simply that a wealthy ruling class
nature of things, be a proper one -- sixty-five would be ignorant to the needs of the working class.
men cannot be found in the United States, who Far worse, and in a way that returns to the ideas
hold the sentiments, possess the feelings, or are underlying the colonists’ revolt against taxation
acqainted [sic] with the wants and interests of without representation, Brutus goes on to imagine that
this vast country. such a government would unduly divest the laboring
citizenry of rights and property. He asks:

Journal on Constitutional Democracy 19

Martin Luther King, Jr., “I Have A Dream”

Give all the power to the many, they will oppress the few. Give all the
power to the few, they will suppress the many. ~ Alexander Hamilton

[W]hat security therefore can there be for the and including freedmen in political society as citizens,
people, where their liberties and property are at voters, and taxpayers (in theory, if not always in
the disposal of so few men? It will literally be a practice), and in civic society as paid laborers.2Five years
government in the hands of the few to oppress later, the first two black men began terms in Congress.
and plunder the many. Similarly, in the early 1900s, women’s participation
in the labor force spiked to over 25 percent. The
For Brutus, as for many thinkers in the Enlightenment first woman was elected to Congress in 1916. Within
tradition, a lack of sympathy was tantamount to a the context of Brutus’ argument that “the person or
willingness to violently assert one’s interest not only body chosen for this purpose [of representing voters],
at the expense of another’s fundamental liberties but should resemble those who appoint them,” it is clear
also their private property. While certainly a product that the United States continues to move towards a
of its times, Brutus’ argument is far from anachronistic. more comprehensively representative democracy. The
In an era in which all Americans are ostensibly equal recently elected 114th Congress could easily be viewed
under the law, inequality of representation and its as a stunning triumph for equal representation in this
consequences are troublingly persistent problems. country. More diverse than any Congress before it, it
includes record numbers of women (104) and racial
II. minorities (92).

Unquestionably, our society has steadily gravitated However, an argument could just as easily be made that
towards equal representation (toward taxation with the 114th Congress marks but a marginal advancement
representation) since Brutus’ time. Beginning with toward equality—that, in line with Brutus’ concerns,
the American Revolution, representation of once- vast swaths of the country are left taxed and represented
disenfranchised demographic groups in Congress by elected officials completely unlike them. While the
has closely followed the start of their significant initial representation of women and minorities closely
participation in the paid labor market and thus their followed their entry into and increased presence in
contribution to federal tax revenue.1 In 1865, the the paid labor market, their level of representation has
Thirteenth Amendment was ratified, ending slavery

20 Kinder Institute

steadily fallen behind their and indigent, women,
taxation since then. Black
Americans, for instance, and racial minorities in
make up 12 percent of the
labor force in the United Congress is contrary
States but comprise only
8.5 percent of the 114th to the very foundation
Congress. The disparity
for women, who make of the United States. It
up over 46 percent of the
labor force, is even more is, ironically, the same
stark: the 104 women
who serve in the House style of representation
and Senate make up less
than 20 percent of the that England assured
members of Congress.
the colonists they had
Most stunning, though,
is the prescience with in Parliament. While

“taxation without

representation” was

the rallying cry of the

Revolution that led to the

formation of this country,

it seems as though, nearly

250 years later, we still

“The tea-tax-tempest, or the Anglo-American Revolution” (1778) falter in efforts to pair

these terms.

Democracy is a process by which the people are free to choose
the man who will get the blame.” ~ Dr. Laurence J. Peter

which Brutus anticipated not only the rise of the 1For the purpose of this essay, entrance into the
natural aristocracy but also its willingness to “plunder paid labor market (or participation increased to a
the many.” In terms of wealth, gross inequality of significant level) is used as an instrument for assuming
representation is beyond dispute. While the median contribution to tax revenue. While many in the labor
net worth of American citizens is less than $45,000, the market, particularly minorities, do not pay significant
median net worth of a member of the 113th Congress federal income taxes relative to other demographics, I
(2013-2015) was over 22 times as much, topping $1 would assert that this measure serves as a baseline by
million. Just one example of the consequence of this which I still vastly underestimate the amount of taxation
inequality is the omnibus spending bill passed in late without representation that occurs in contemporary
2014, which included a provision loosening regulations America. Even with exemptions and other mechanisms
on Wall Street: regulations that were initially passed to to lower working class Americans’ income tax burden
protect consumers from the effects of extremely risky to zero, nearly all citizens contribute to federal
but highly profitable trading practices. The provision revenue. In typical, non-recession years, only around
was written by Citigroup, one of the corporations 14 percent of households do not pay federal income
being regulated. taxes or payroll taxes. This number would be even
lower if it reflected other federal taxes that households
The Constitution, a distinctly Federalist document, pay, including excise taxes on gasoline and other items.
has played an integral role in promoting equality 2Ibid.
throughout every facet of life in this nation, but
history has borne out many of the Anti-Federalists’
concerns about unequal representation in the
government. Regardless of the legislative effects of a
government still controlled largely by wealthy, white
men, this “virtual representation” of the middle class

Journal on Constitutional Democracy 21

The Supreme Court and its Role
in the American Democratic
Experience

John Tsikalas

There is much debate in the United States addressed this and other pressing problems.

regarding the nature of the Supreme Court, However, despite relative unanimity about

its relationship with the American people, the need for a new system, its details

and its place in the American democratic were heavily and contentiously discussed

system. Given its prominent role in all throughout the three-month Convention.

facets of our democracy, citizens have good In conceptualizing a national judiciary,
reason to engage in such conversations. most Framers envisioned a judicial branch
The Supreme Court ostensibly possesses in which state courts solved most legal
the final say on all constitutional issues, and problems. At the same time, they brought
the American populace thus rightly looks competing ideas regarding what this
to the Court for clarity on legislation and national court would look like. Delegates
to initiate legal change on a range of issues, set forth varying proposals as to who should
including marriage rights, voting rights, appoint federal judges; they disagreed about
abortion rights, speech protections, and what qualified as “good behavior,” which was
privacy issues. necessary for life tenure, and held differing

This essay will explore two foundational opinions on salary provisions for federal

concerns related to Article III of the United judges; a Virginia delegation even proposed

States’ Constitution in an attempt to give Theodor Horydczak, the possibility of multiple federal supreme

the reader a broader perspective on both “U.S. Supreme Court courts. Though the Framers eventually

historical and modern debates surrounding exteriors. Close-up of door compromised, assembling their disparate

the Supreme Court. The essay’s first to U.S. Supreme Court I; ideas into what is now Article III of the

section will examine two differing Construction, main entry to Constitution, they left many unanswered

eighteenth-century opinions regarding the U.S. Supreme Court” questions regarding the structure, scope,

to the proper role of the national judicial (ca. 1920-1950) and logistics of the national judiciary.

system, while its second section will shed As a point of reference for these questions, my hope
light on the two primary sides of the unceasing debate is to frame them within the broader context of the
over the correct judicial interpretative method. Federalist and Anti-Federalist debates over the form

I. of national government that was proposed by the new

Early in the Constitutional Convention, the Framers Constitution. On the one hand, the Anti-Federalists
agreed that the United States would have a permanent argued that the power invested in the general
national judicial system, a drastic break from the limited government by the Constitution would unduly burden
court included in the Articles of Confederation. That and reduce the authority of the member states. On
the Articles of Confederation gave no real solution to the other hand, the Federalists sought to convince the
the inevitability of interstate disputes, for example, nation that ratification was a necessary public good and
was one of many shortcomings that confirmed, for that the proposed government was ideally structured to
the Framers, the need for a new judicial system that protect the rights of the states and citizens and, more
generally, to preserve the Union. The Federalists and

22 Kinder Institute

Federalist 78 Anti-Federalist XI
Publius (Alexander Hamilton) Brutus (Robert Yates)

Whoever attentively considers the different departments of This government is a complete system, not only for making,
power must perceive, that in a government in which they are but for executing laws. And the courts of law, which will be
separated from each other, the judiciary, from the nature of its constituted by it, are not only to decide upon the constitution
functions, will always be the least dangerous to the political and the laws made in pursuance of it, but by officers
rights of the constitution; because it will be least in a capacity to subordinate to them to execute all their decisions. The real
annoy or injure them. effect of this system of government, will therefore be brought
The complete independence of the courts of justice is peculiarly home to the feelings of the people, through the medium of
essential in a limited constitution. By a limited constitution I the judicial power. It is, moreover, of great importance, to
understand one which contains certain specified exceptions to examine with care the nature and extent of the judicial power,
the legislative authority; such for instance as that it shall pass no because those who are to be vested with it, are to be placed in a
bills of attainder, no ex post facto laws, and the like. Limitations situation altogether unprecedented in a free country. They are
of this kind can be preserved in practice no other way than to be rendered totally independent, both of the people and the
through the medium of the courts of justice; whose duty it legislature, both with respect to their offices and salaries. No
must be to declare all acts contrary to the manifest tenor of the errors they may commit can be corrected by any power above
constitution void. Without this, all the reservations of particular them, if any such power there be, nor can they be removed
rights or privileges would amount to nothing. from office for making ever so many erroneous adjudications.
A constitution is in fact, and must be, regarded by the judges as They are authorised to determine all questions that may
a fundamental law. It therefore belongs to them to ascertain its arise upon the meaning of the constitution in law. This
meaning as well as the meaning of any particular act proceeding article vests the courts with authority to give the constitution
from the legislative body. If there should happen to be an a legal construction, or to explain it according to the rules
irreconcileable variance between the two, that which has the laid down for construing a law. — These rules give a certain
superior obligation and validity ought of course to be preferred; degree of latitude of explanation. According to this mode
or in other words, the constitution ought to be preferred to of construction, the courts are to give such meaning to the
the statute, the intention of the people to the intention of their constitution as comports best with the common, and generally
agents. received acceptation of the words in which it is expressed,
Nor does this conclusion by any means suppose a superiority regarding their ordinary and popular use, rather than their
of the judicial to the legislative power. It only supposes that the grammatical propriety. Where words are dubious, they will
power of the people is superior to both; and that where the will be explained by the context. The end of the clause will be
of the legislature declared in its statutes, stands in opposition to attended to, and the words will be understood, as having a
that of the people declared in the constitution, the judges ought view to it; and the words will not be so understood as to bear
to be governed by the latter, rather than the former. They ought no meaning or a very absurd one.
to regulate their decisions by the fundamental laws, rather than By this they are empowered, to explain the constitution
by those which are not fundamental. according to the reasoning spirit of it, without being confined
It can be of no weight to say, that the courts on the pretense to the words or letter.
of a repugnancy, may substitute their own pleasure to the They will give the sense of every article of the constitution,
constitutional intentions of the legislature. This might as well that may from time to time come before them. And in their
happen in the case of two contradictory statutes; or it might as decisions they will not confine themselves to any fixed or
well happen in every adjudication upon any single statute. The established rules, but will determine, according to what
courts must declare the sense of the law; and if they should be appears to them, the reason and spirit of the constitution.
disposed to exercise will instead of judgment, the consequence The opinions of the supreme court, whatever they may be,
would equally be the substitution of their pleasure to that of the will have the force of law; because there is no power provided
legislative body. The observation, if it proved anything, would in the constitution, that can correct their errors, or controul
prove that there ought to be no judges distinct from that body. their adjudications. From this court there is no appeal.
If then the courts of justice are to be considered as the bulwarks That the judicial power of the United States, will lean strongly
of a limited constitution against legislative encroachments, this in favour of the general government, and will give such an
consideration will afford a strong argument for the permanent explanation to the constitution, as will favour an extension of
tenure of judicial offices, since nothing will contribute so much its jurisdiction, is very evident from a variety of considerations.
as this to that independent spirit in the judges, which must be This power in the judicial, will enable them to mould the
essential to the faithful performance of so arduous a duty. government, into almost any shape they please.

Journal on Constitutional Democracy 23





Timeline of the Court

1787 1789 1803 1832 1861 1870

The Constitutional Judicial Review
Convention
Judiciary Act of In Marbury v. Jackson Defies the Lincoln ignores Expansion to
The Convention Madison, Chief
included Article 1789 Justice John Court Taney Nine Justices
III to the United Marshall forever
States Constitution, President George elevated the In Worcester After President On February 7,
establishing the Washington signed Supreme Court’s v. Georgia, the Abraham Lincoln 1870, President
federal judicial this bill into law role in our federal Supreme Court suspended habeas Ulysses S. Grant
system. The lack of outlining the government by decided the corpus, Chief nominated
a federal judiciary framework for the declaring an State of Georgia Justice Taney Joseph P. Bradley
was among the federal judicial act of Congress could not make wrote in Ex parte to the Court,
many defects of system and the unconstitutional. its own treaties Merryman, “The creating the
the Articles of same foundation Though some and agreements president, under Supreme Court’s
Confederation, and for our current believed the Court with the Cherokee the constitution of ninth seat. The
Article III sought judiciary. The possessed this Nation. President the United States, number of
to remedy this Act established power before Andrew Jackson, cannot suspend justices has not
problem. District Courts, Marbury, Marshall’s who advocated the privilege of since changed.
Circuit Courts, and opinion officially for furthering the writ of habeas
a Supreme Court. gave the Court states’ rights in corpus.” Again
Interestingly, the final say on these matters, was demonstrating
Supreme Court constitutional law. reported to have the reality that
originally consisted said, “John Marshall the Court’s power
of one Chief Justice has spoken, now is intimately
and five associate let him enforce it.” connected with the
justices. Though scholars current political
question whether situation, especially
Jackson said this during war, Lincoln
line, his disregard simply ignored
for Chief Justice Taney’s warning.
Marshall’s opinion
showed the Court
has always relied
on other branches
of government to
enforce its rulings.

26 Kinder Institute

1925 1935 1937 1967 1981 2000 2005

Supreme Court Court Packing First African- First Woman Bush v. Gore “Balls and
Construction
Judiciary Act of Completed Frustrated by American Justice Justice Though winning Strikes”
the Court’s the popular vote,
1925 After judging hindering New On August 30, Fulfilling his Vice President In his
from New Deal Programs, 1967, President presidential Al Gore lost the confirmation
This piece of York City, President Franklin Lyndon Johnson campaign electoral college hearings,
legislation gave Philadelphia, Roosevelt nominated promise, to Governor current Chief
the Supreme and various proposed his Thurgood President George W. Bush. Justice nominee
Court unrestricted parts of “Court-packing Marshall to the Ronald Reagan Because of John Roberts
ability to choose Washington plan,” legislation Supreme Court. nominated complications explained his
its docket of D.C., including that would Marshall served Sandra Day surrounding vision for the
cases. Through the basement empower him on the High Court O’Connor to Florida’s ballots, Supreme Court,
writs of certiorari, of the U.S. to insert six new until 1991, when he serve as the Gore decided “I will remember
the Court could Capitol building, justices to the retired at the age first woman to contest the that it’s my job
now decide which Congress Supreme Court. of eighty-two. justice in U.S. outcome in the to call balls
cases it wanted allotted almost Due to the public history. court system. and strikes and
to decide, rather $10 million for and legislators’ Eventually, the not to pitch or
than hearing the construction immense Supreme Court bat.” Roberts
cases from its of a new disapproval of ruled 5-4 that was eventually
“mandatory courthouse. this proposal, it Florida must confirmed, and is
jurisdiction.” seems unlikely the stop its recount, our current Chief
Because Chief number of justices essentially Justice
Justice Taft urged will change. granting the
Congress to pass presidency to
this bill, it is often Bush.
referred to as the
‘Judges’ Bill.’

Journal on Constitutional Democracy 27

“My job is to call balls and strikes and not to pitch or bat.”

~ U.S. Supreme Court Chief Justice John Roberts,
Confirmation Hearings (2005)

II. On one hand, some see the United States Constitution
as a living and evolving document. The meaning of
In modern times, the focus of the debates surrounding the Constitution’s words, they argue, is neither fixed
the Supreme Court has very much evolved but has nor static. Rather, the Constitution gives judges
hardly ceased. Though some disputes have been principles to apply, and these principles evolve and
resolved—the issue of judicial review, for instance— shift in their practical applications in response to
others have emerged to take their place. Today, social and historical change. In his book entitled Active
arguments surrounding the federal courts address Liberty, for example, current Supreme Court Justice
topics ranging from the confirmation-process to Stephen Breyer stresses the “democratic theme” of the
permitting video recorders in oral arguments to Constitution. The principles that the Constitution
whether or not justices equally represent the American bequeaths are those of liberty and equality, and the
people (and if it matters). In this section of the essay, legal understanding of liberty and equality must
however, I will examine what I consider to be the most change as our nation changes. According to Breyer, his
significant issue in debates concerning the modern method of interpretation “will yield better law—law
Supreme Court: differing theories of interpretation. that helps a community of individuals democratically

atscJdultBduOdCiAoothijmuennhhhutbainrnnuioeliaoTsfvottseeesamolranaffteeseltiuidwoeiunntdirrrelscotrceorrepptiieswletiseaermmmiaugc2trrnistkngso7tntoeeat0getoooh6rcA5ttlvna1emleauuso0acj%osysnlts3Sdutettaissm%syhiulittuidsllsetsvosioeseyystoteeps,oticot..niexwnosessscCarnulvinfmaFtmegfeenseaisoalottngusomarstdcdenstMntoiaelrfkpieheanhnclwneGtlsinrgcetehnegtaStotcohiorgaieosionesdarutnemCorrwoeigoeurrsdepeodimsnmeyuoefsotilcbmrnwt,nesisetorviuesohuo,uhsddareefteemr.nmeroraetnheegnrnrtiogeeil.s,onnrd’yeeeetrs)tonn.,,,fHrdtieheseogsxerwuaanseceredesTSvrieuhcnbareoprg,aonredtteheothrmroreoaaHwUenvrohee.rtCSiliroydyg.sdoSeihrcauzuode-larplpaetkordcrec,g(oim“aaadifUscnneieela.dddCeSsl o. uSrutpfrsmmwtarehoenmhmeaaaeeetiktnurvnCietrotsaoaoiilrutndivnr(egiiit1smnf.a9isCgnno2prooe0cCilugewd)ireomitdtbrntyoe,hys.on1”etmai8ttn2Atuia1dhnsts-iWsaotctdenacaannerpsntdrustumbafliwnisctCtBAmteaamnstighhonaureonnarrmrwhegayseectrcddenitpdoeartiietyaeayeeudahoki,n.snudponenacflnarterpidTsrrnfhpRd,gnterCdrJe’eahrstdtrdalmg1uaojaehsahnooounaosc9tserttpeeetrbnfshtghtwsifn5hirgrntiioottolseeeccovi8teieauttnrcrssf)raep.mimn“,.mteistlcmirpdTosadjuDhndTEosoucereraintstit”ehugonundcaynpahinhohs—ocoseorrotlpggttedleeetlhleenuuceeori(nposmss[ebb’teiWdssndsn,sEecrifevppaeeroteseepCtyvoswieswaittahycnncgroowwilnworo.edohiiovsthrpntrstfaeeunseiuhearefetalneeirocdnthrtoorltnaltsnntodogyyyyearsstttff],,

28 Kinder Institute

There are, however, substantial objections to this the meaning that it has borne from its inception, and
popular line of thinking. Who decides the modern reject judicial speculation about both the drafters’
definition of decency? What about those who disagree extratextually derived purposes and the desirability
with judges’ understanding of what is decent? Are of the fair reading’s anticipated consequences.”
these people’s notions of decency less important or Interestingly, this view can also be exemplified with a
valid than others? How can a democracy produce death penalty case. In his dissenting opinion in Roper
justice for all, when its judges choose one definition of v. Simmons (2005), Justice Scalia wrote, “The Court
progress over another? Textualism claims to have the thus proclaims itself the sole arbiter of our Nation’s
answer to these pressing questions. moral standards – and in the course of discharging
that awesome responsibility purports to take guidance
Textualists argue for an objective understanding of the from the views of foreign courts and legislatures.”
Constitution that does not shift with the tide of public Here and in many other dissents, Scalia critiques this

“The judicial power of the United States, shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time
ordain and establish. The judges, both of the supreme and inferior courts,
shall hold their offices during good behavior, and shall, at stated times, receive
for their services, a compensation, which shall not be diminshed during their

continuance in office.”

~ Article III Section I United States Constitution

opinion. Claiming that moral views and their constant conception of the Court-as-moral arbiter, arguing that,
fluctuation have nothing to do with the interpretation per the mandates of the Constitution (as opposed to
of the Constitution, textualists seek neutral principles the mandates of the “foreign courts and legislatures”
in the law. Unlike those that subscribe to an evolving he cited in Roper), our society’s moral dilemmas should
or living Constitution, they discredit the role of such be sorted out in the legislative branch, the branch
factors as public-opinion polls and international laws that represents the people, and not dealt with by nine
in finding meaning for the Constitution and simply unelected women and men wearing black robes.
look to the words of the text and the traditions (legal,
philosophical, and otherwise) from which the text It is worth noting that the line between textualists
developed as a way of arriving at judgment. Current and non-textualists is not so clear, and there are many
Supreme Court Justice Antonin Scalia and legal scholar variations in Constitutional interpretation. However,
Bryan Garner summarize textualists’ arguments in I hope that juxtaposing Justices Breyer and Scalia’s
their book Reading Law, when they say that “we look basic interpretative philosophies will shed light on
for meaning in the governing text, ascribe to that text the polarizing ideological divide on our nation’s
highest court.

Journal on Constitutional Democracy 29

The Right to Bear Arms in a
Contemporary World

Matthew McKeown

30 Kinder Institute

“A well regulated militia, being necessary to the security of a free state,
the right of the people to keep and bear arms, shall not be infringed.”
~ Second Amendment to the Constitution of the United States

Since the passage of the Bill of Rights in 1791,the Second control advocates thus combat the argument often
Amendment has been at the heart of heated national cited by gun control proponents by indicating that
debates. Each of its 27 words has been scrutinized in the right to bear arms extends beyond the context of
the battle over gun control, and the short amendment warfare in order to protect ordinary citizens across the
has taken center stage in disputes concerning the extent developing country. More broadly, then, the operative
and limits of states’ and individual rights and disparate clause serves for anti-gun control advocates as a means
philosophies of constitutional interpretation. of proposing that the Second Amendment was designed
by the federal government for the purpose of limiting
The Second Amendment is often broken into two parts, its own authority in matters related to gun ownership
with people on opposing sides of the argument about and rights.
gun control seizing on one or the other in support of
their claim to rightness. In these debates, proponents of Underlying this disagreement over the prefatory
stricter federal gun control often focus their arguments and operative clauses of the Second Amendment is a
on the prefatory clause of the Second Amendment: “A broader question of interpretive philosophy that many
well-regulated militia, being necessary to the security contemporary constitutional debates about gun control
of a free state.” Believing that the Framers intended address: In attempting to interpret the language of the
for the amendment to ensure a militia’s gun rights in Constitution in its historical context, are we failing
the event of conflict, these people often extend the to ask the question of whether the Framers intended
right no further, arguing that the Constitution does for the Second Amendment to account for or apply to
not guarantee private citizens the right to bear arms relevant changes in society, such as technological shifts
in peacetime. By reading the document as ensuring and changes in weaponry? Debates about this question
the right to bear arms in the event of war, they reject can best be addressed by taking an historical look at
that it offers a sense of unlimited freedom with Supreme Court cases on the Second Amendment and,
regards to arms, and, in turn, they use this as the moreover, at the ideological stalemate that has arisen
basis for establishing the constitutionality of federal as a result of, and perhaps even been exacerbated by,
gun regulations. these cases.

On the other hand, two different groups, anti- As our country’s weaponry has progressed to handle
gun control advocates and states’ rights advocates, greater rapid firing capabilities and larger magazines
emphasize the operative clause—“the right of the than ever before, we as a society have been placed at
people to keep and bear arms shall not be infringed”— a crossroads of liberty and safety. With regard to the
in arguing that the Second Amendment represents ongoing gun control debate, as gun violence continues
an unambiguous articulation of unlimited rights. to become more prevalent across the nation, the public
Specifically, these advocates use this brief segment of has begun to rely more on the Supreme Court not
the amendment’s text to argue that the phrase “shall only to determine what federally-legislated, safety-
not be infringed” precludes the federal government related regulations are permissible within the context
from regulating gun ownership, holding fast to the of the Second Amendment and what rights extended
belief that the government’s inability to “infringe” upon directly to individuals are inviolable but also, in some
this right is truly what the Framers intended. Anti-gun cases, to make a choice between these ideals of public

Journal on Constitutional Democracy 31

safety and individual freedom. The groundbreaking in arguments about gun rights and regulations;
case of District of Columbia v. Heller (2008) examined moreover (and conversely), relying too emphatically
gun regulations at the national level, ruling on the issue on a textualist reading of the Constitution exposes the
of federal protection of an individual’s right to bear limits of language and history as morally normative
arms within federal enclaves. In a win for individuals’ interpretive tools.
rights, claims of self-defense, and at-home protection,
the Court sided with Heller, striking down previous It is through these opposing methods of constitutional
firearms control regulations and ruling that individuals interpretation that we come to a fork in the road.
do, in fact, possess the right to keep and bear a firearm Should we continue to interpret the amendment based
for traditionally lawful purposes at a federal level. on its original language and intent (understanding that
there are debates about original meaning, itself), or
As seen in Adam Winkler’s examination of Justice must we apply it to our modern societal advancements
Scalia’s opinion in his essay “Heller’s Catch-22,” it and the potential dangers that may come along with
is clear that DC v. Heller was decided on the basis of them? It is here that the argument becomes circular.
the kind of textual interpretation of the Constitution As has been repeatedly seen in recent years, the
examined in this essay’s third paragraph. In interpreting question of whether we should read the constitution
the Framer’s intentions, Scalia and the court read the as a living document or read the words as signposts of
amendment’s operative clause as protecting the right our Framers’ intentions has become one of the most
to bear arms for private as well as militia purposes. As influential and least resolved aspects of the gun control
noted in “Heller’s Catch 22,” Scalia’s opinion relied debate. Further complicating this issue is how our
primarily on historical resources to indicate that the current society has come to understand gun control as
numerous questions presented by the amendment a heated, black-and-white moral debate over what is

“Justice Scalia’s opinion [in Heller] relies heavily on historical sources to conclude that
the Second Amendment was understood by the Framers to protect a right to keep and
bear arms for private purposes, in addition to militia purposes.” ~ Adam Winkler

could simply be answered by reading the language of right and what is wrong in relation to gun ownership
the original document in its original, historical context. and individual liberty. Often, an emotional appeal is
made in relation to control regulation, citing examples
At the same time—and at the heart of the debate over of violent accidents or mass murders where guns have
interpretive philosophy—many argue that approaching been used and, moreover, where accounting for societal
the Constitution as a living document could easily yield change via greater regulations might have prevented
a different decision. In “In Search of a Standard: Gun tragedy. On the other side, advocates for less control
Regulation after Heller and McDonald,” for example, over gun ownership use history as an example of the
Stephen Kiehl provides insight into the consequences importance of individual ownership and, more broadly,
of employing this alternate model by looking at the the liberty extended to citizens by the Constitution. An
case from the perspective of Heller. Though he became issue that is generally divided along partisan lines, gun
a poster boy of sorts for gun rights, Heller himself regulations will undoubtedly be a topic that will never
warned that, “[l]ike most rights, the right secured by truly plateau in relation to its current understanding
the Second Amendment is not unlimited.” Though in a by the Supreme Court. A divided society and a divided
rather fragmented, quasi-partisan way, Heller sums up court seem to continuously come back to a question
the simplicity behind the argument of those calling for that goes beyond the limited context of the gun control
a modern examination of the second amendment in this debates: is it time for our system to modernize the way
quote. The original language, Heller suggests, does not we read the Constitution?
grant unlimited license to ignore modern technology

32 Kinder Institute

“Even as Heller and McDonald were landmark decisions, however, they were also
cautious decisions. The Court took pains to note that it was recognizing only the right to
keep and bear arms in the home for self-defense. The Court declined to set a standard

of review to guide lower courts but noted that some longstanding gun regulations . . .
continue to be lawful.” ~ Stephen Kiehl

1. Adam Winkler, “Heller’s Catch-22”, 56 UCLA
Law Review 1551 (2009).
2. Stephen Kiehl, “In Search of a Standard: Gun
Regulation after Heller and McDonald”, 70 Maryland
Law Review 1131 (2011).

Journal on Constitutional Democracy 33

A Woman’s Vote

Samantha Franks

“Elizabeth Cady Stanton, seated, and Susan B. Anthony, standing, three-quarters length portrait” (ca. 1880-1902)
34 Kinder Institute

Wesleyan Chapel, 126 Fall Street (State Route 5 & 20), Seneca Falls, Seneca County, NY.
Location of the first women’s rights convention (1848)

In the twenty-first century, school children are taught American idea of coverture, in which a woman’s legal
that the birth of American freedom ushered in an age identity was subsumed within that of her husband.
of golden liberty. The Declaration of Independence Liberty for all actually meant liberty for few, and it
proclaimed American citizens free in a number of would take almost two centuries of painful, stilted
different capacities – free of a tyrannical king, free to progress for the American ideal of freedom to begin
pursue their individual happiness, free to claim the being universally applied to American citizens. Like the
ground beneath their feet as their own. The shining narrative of the nation’s founding, the path to suffrage
city on a hill that Winthrop first spoke of in his 1630 for all has been turned into myth, and for women in
sermon, “A Model of Christian Charity,” became a particular, the myth is strangely narrow. In the usual
potent metaphor for self-determination, forged in the telling, the July 1848 Seneca Falls Convention of is
Boston Harbor and delivered by George Washington seen as the single most important event in the history
to a waiting populace. Presidents Kennedy and Reagan of women’s rights and one from which the passage
affirmed this story with the very same metaphor. of the 19th Amendment, granting women’s suffrage,
Eventually, the United States became an empire, with followed with relative ease.
its power grounded in its people.
While strong female presences such as Dolly Madison,
Part of that history is real. It is not, however, the full truth. Martha Washington, and Betsy Ross certainly existed
in the decades following the American Revolution,
It is common knowledge, now, that the founding their influence is rarely noted in history. Instead, the
documents of America established rights for a primarily movement to advance and secure women’s rights
white, exclusively male demographic. The native traditionally “begins” seventy years later, with the
peoples were disregarded; the slaves, while considered Seneca Falls Convention. While the Convention was
in preliminary discussions, remained ultimately not the first defining moment for the movement,
unprotected. Women, despite comprising half of the Susan B. Anthony and Elizabeth Cady Stanton found
young nation’s population, were sidelined by the early it “useful to their political agenda and strategy” to

Journal on Constitutional Democracy 35

refer to the New York gathering as a powerful, unified importance of Seneca Falls is undeniable, this approach
moment in women’s history. In many respects, this that jumps from the Convention to the passage of the
strategy reflects the historical importance of the 19th Amendment problematically blurs and comes at the
Convention. Specifically, Seneca Falls represents a expense of carefully examining the vast significance of the
moment in history when women joined together to seventy years between these two events.
create an American declaration of their own—a unified
pronunciation of their rights—and it thus became a The truth of history holds less charm than the history
potent reminder of what could be: that the so-called books’ simplistic story of triumphant unification
“fairer sex” could gather, debate, and come to a followed by constitutional triumph. In 1870, despite
conclusion about substantive matters of government. her lack of a vote, Victoria Woodhull declared herself
Still, this narrative of unity also obscures the actual the head of a presidential campaign and then ran on
history to some degree. In reality, Susan B. Anthony a platform based on “sexual revolution” for women.
did not even attend the Convention, and it was not Unsurprisingly, the radical feminism of Woodhull was
until after the Civil War, when it “was necessary to not well accepted; some even said it may have hindered
start the women’s rights movement all over again,” the cause, creating the idea that women’s suffrage was
that the most famous American suffragist met Stanton a foolish and obnoxious endeavor. Two years later,
and joined the movement for women’s rights. It has Susan B. Anthony would be arrested for filing a ballot,
been easier in history text books, though, to assume then charged a $100 fine that she never paid. Further,
that the women began working as one unit at Seneca working to secure women’s right to vote could not
Falls and continued to do so afterwards, as opposed to unify everyone. Groups of advocates were stratified
joining together only when necessary. For whatever not only by how they thought women should conduct
reason, be it Anthony and Stanton’s early direction themselves in their pursuit of political equality but also
of historical memory or other, more varied reasons, by race and class. Determined to secure suffrage for
the Convention thus commonly prefaces women’s right Caucasian women first, early white feminism turned
to vote in American text books. And while the historical its back on the cause of African Americans’ suffrage

36 Kinder Institute

and, in doing so, alienated abolitionist men and women Almost 150 years before, the Founding Fathers tried
alike. Anthony and Stanton did their best to ignore this to build a better, freer world. In some ways, they
stratification. Despite her penchant for starting feuds, succeeded. A country, though, is never done – and
Anthony was careful to paint a narrative in which while 1919 certainly did not see the end of women’s
women universally agreed on the path to suffrage fight for equality or even for the fight of universal
and, more specifically, agreed on her path. Despite suffrage, it did represent a fundamental step forward
her efforts, though, Anthony would die without ever in claiming independence for all citizens. The fight for
casting a legal ballot. the vote encapsulated much of what it meant to be an
American. It meant disagreeing, debating, fighting, and
Slowly, states began to ratify women’s right to vote, ultimately striving for a fairer world. While it may not
but a constitutional Amendment remained elusive. have been what the original Declaration imagined, it
When Woodrow Wilson came to office in 1913, 5,000 reinforced one fundamental truth: when the people
women converged upon Washington, DC, determined speak, if the speak loud and long enough, they will
to convince their new president to support their cause. be heard.
Wilson, despite this, seemed more annoyed than
sympathetic. Over the next few years, he continued 1Mullaney, Marie M. “The Myth Of Seneca Falls:
to tell the suffragists to wait for state approval. Led Memory And The Women’s Suffrage Movement,
by the determined but divided Anna Shaw and Alice 1848–1898.” Library Journal 139.12 (2014): 99.
Paul, women continued to actively advance their cause Professional Development Collection. Web. 13 Feb.
by petitioning Congress, speaking across the country, 2015.
and protesting outside the White House. When World
War I began, women continued to protest despite the 2Henrietta Krone Armstrong
general disapproval associated with picketing a wartime Source: The Pennsylvania Magazine of History and
president. After the demonstrations turned violent, Biography, Vol. 79, No. 4 (Oct., 1955), pp. 525-526.
many of the young suffragists were jailed; they turned Publisher(s): The Historical Society of Pennsylvania
to a hunger strike to continue their protests and after
subsequent force feedings, gained public support for 3Frisken, Amanda. “Sex in Politics: Victoria Woodhull
the movement. President Wilson finally declared his As An American Public Woman, 1870-1876.” Journal
support in 1918, but it would be another year before Of Women’s History 12.1 (2000): 89. America:
the constitutional amendment passed. History & Life. Web. 17 Feb. 2015.at 91.

Even then, the amendment barely squeaked into 4Enix-Ross, Deborah. “Susan B. Anthony Is Convicted
history. The right to suffrage came down to Tennessee, For Casting A Ballot.” ABA Journal 99.11 (2013): 1.
where state legislators wore white or red roses to show Business Source Premier.
their support or disdain for the amendment. The Web. 16 Feb. 2015.
white roses, representing suffragists, were dwindling
after days of bribes, arguments, and general disarray. 5Farrell, Grace. “Beneath The Suffrage Narrative.”
In the end, it was a mother that decided history. Her Canadian Review Of American Studies 36.1 (2006):
24-year-old son, Harry Burn, wore a red rose pinned 45. MasterFILE Premier. Web. 17 Feb. 2015.
to his chest – until he received a note from his mother,
persuading him to help put the “’rat’ in ‘ratification.’” 6Pusey, Allen. “Wilson, Women And War.” ABA
Still wearing the red rose, he declared aye so quickly Journal 101.1 (2015): 40-41. Academic Search
that it took his co-conspirators-turned-opponents Complete. Web. 16 Feb. 2015.
several long moments to realize what had happened.
By then, it was too late. Tennessee approved women’s
suffrage by one vote.

Journal on Constitutional Democracy 37

38 Kinder Institute

Beyond

Woodrow Wilson and American
Exceptionalism

Samuel Dicke

An Afghan displays the ink used for casting ballots at a voting center
in Matun District, Khost province, Afghanistan, Sept. 18, 2010.

Presidents of the United States from John F. Kennedy in how Wilson justifies
to Ronald Reagan have famously referred to our nation
as the shining city upon a hill, using this metaphor entering war on the
to imply how the United States is an ideal model of
the democratic experience and the crown jewel of grounds that the United
democratic governance. While this poetic line strikes
a deep patriotic chord, its underlying reference to States’ participation
American exceptionalism (the subject of this essay) is
nothing new; it is a notion that has been articulated by (and, implicitly, its
American leaders from the Founding era forward. Even
today, the idea that our nation is qualitatively different orchestration of victory)
from other nations—an exception within democracy’s
global context—dominates as a staple of US foreign would inevitably result
policy.The idea has also taken on the secondary meaning
that over time, and due to its many accomplishments, in the spread of a
American democracy has not only proven itself
different but qualitatively better or more exceptional particularly American
than other governments. Though the concept has
been used frequently in the news in recent years, this notion of political liberty
mentality lies rooted far deeper in our nation’s history
than most realize. By examining the speeches, policies, to nations where the
and procedures of President Woodrow Wilson, I will rights associated with this Thomas Woodrow Wilson (1919)
examine how this idea has grown to define American
foreign policy in the 20th century. Specifically, I will liberty were not present.
use Wilson’s World War I-era writings to identify how
By underscoring the geopolitical necessity of sowing the

seeds of democracy abroad, even if it meant violence,

Wilson is establishing American democracy’s difference

from the standing institutions or “tested foundations”

in Europe as well as highlighting its natural superiority

and desirability relative to these institutions and

their foundations.

Wilson’s Fourteen Points, his post-war statement of the
guiding principles for peace negotiations, demonstrates
a similar ideological and broadly exceptionalist
determination to extend democracy’s scope (a

“Just think of what Woodrow Wilson stood for: he stood for world
government. He wanted an early United Nations, League of Nations. But it

was the conservatives, Republicans, that stood against him.” ~ Ron Paul

American exceptionalism, as well as the rhetorical determination, moreover, that can be traced back
and policy-related controversies that have come with to before his own presidency.) Specifically, Wilson’s
it, was strengthened by Wilson’s sense of our nation’s last point, which called for “a general association of
ideological obligation with regard to the support and nations…formed under specific covenants for the
spread of democratic ideals. purpose of affording mutual guarantees of political
independence and territorial integrity to great and
A clear indication of Wilson’s exceptionalist belief in small states alike,” 3 is clearly influenced by President
the global importance of the democratic process can Theodore Roosevelt’s 1904 Corollary to the Monroe
be found in a 1917 address to Congress, in which Doctrine, which justified the United States’ status as an
he lobbies for declaring war against the “Imperial “international police power” by asserting the US’ right
German Government.”1In his plea, Wilson states to intervene in conflicts between European and South
that “the world must be made safe for democracy. Its American nations. 4 Wilson’s Fourteen Points proposal
peace must be planted upon the tested foundations of to create an international governing body to regulate
political liberty.” 2 Both the original and more modern the global world becomes far more interesting when
interpretations of American exceptionalism are evident put in context of the 1917 speech to Congress examined

Journal on Constitutional Democracy 41

earlier. Given his justification for entering war, one can that the public was already trained in (and broadly in
only assume that his “association of nations” would call support of) the idea of America’s difference from and
on countries that were not particularly or politically greatness relative to the rest of the world.
democratic to participate in the American-led process
of extending democracy, an arrangement that further Wilson’s defense of the need to secure and expand
expresses Wilson’s belief in democracy’s superiority. democracy’s presence abroad is evident in his July 4th,
1918, address at Mount Vernon, in which Wilson stated
Though Wilson was adamant about their rightness, his “that it is our inestimable privilege to concert with
ideas about the nation’s duty to grow democracy were men out of every nation [about] what shall make not
not always well received. The controversy sparked by only the liberties of America secure, but the liberties of

“The day of conquest and aggrandizement is gone by; so is also the day of secret
covenants entered into in the interest of particular governments and likely at

some unlooked-for moment to upset the peace of the world.”

~ Woodrow Wilson

Wilson’s Fourteen Points and the attitude of American every other people as well.” 5 The rhetorical equation
exceptionalism underlying it became domestically of the “liberties of America” and “the liberties of
evident when, as the Great War wound down, every other people” shows the president’s persistent
Americans fought the ratification of the Paris Peace exceptionalist attitude by presenting the extension of
Treaty. The Treaty of Versailles called for the creation American democracy as the extension of a naturally and
of a united League of Nations, similar in nature to “inestimably” superior or privileged political model.
Wilson’s “association of nations,” whose responsibilities
included holding independent nations accountable for Possibly the greatest unknown accomplishment of
future injustices and protecting democratic liberty. our 28th president was the King-Crane Commission,
Wilson campaigned for months to convince the US a report assigned to businessmen and senators in the
populace of the Treaty’s advantages to no avail, as it late 1910s that served as an official investigation into
ultimately failed to be ratified in the Senate in 1919. the democratic transition of several Arab nations and,
However, this failure was not necessarily a referendum more importantly for my purposes here, that revealed
on citizens’ distaste for American exceptionalism. Tired a different side of Wilson’s ideas regarding American
of being wound up in the conflicts of other nations, exceptionalism.Rather than reflect a somewhat arrogant
Americans insisted on the nation’s isolation, rather than belief in the superiority of American democracy, the
its emergence as a democratic crusader, despite the fact report demonstrates Wilson’s perception of American

“America is a Nation with a mission - and that mission comes from
our most basic beliefs. We have no desire to dominate, no ambitions
of empire. Our aim is a democratic peace - a peace founded upon the
dignity and rights of every man and woman.” ~ George W. Bush

42 Kinder Institute

exceptionalism as an inherently altruistic attitude 1Woodrow Wilson, Address of the President of the
by declaring that the US should “…seek to bring United States Delivered at a Joint Session of the Two
the new State as rapidly as possible to economic Houses of Congress, April 2, 1917.
independence as well as to political independence.”
6Absent any explicitly pro-democratic cheerleading, 2Woodrow Wilson, Address of the President of the
this opinion suggests that Wilson’s foreign policy United States Delivered at a Joint Session of the Two
intentions were not wholeheartedly nationalistic Houses of Congress, April 2, 1917.
but were instead concerned with providing the aid
that would be necessary to secure the economic and 3Woodrow Wilson, Fourteen Points, January 8, 1918.
political liberation of these oppressed nations on their
own terms. Looking forward in time, I believe such 4Theodore Roosevelt, Annual Message to Congress,
intervention a century ago would have resulted in a December 6, 1904.
more united and politically stable Arab world today.
Unfortunately, the actions proposed by the King- 5Address of President Woodrow Wilson Delivered at
Crane Commission never came to fruition, as Wilson Mount Vernon, VA, July 4, 1918.
had recently suffered a stroke, and the report was
buried on the desk of a deteriorating president. 61919 Inter-Allied Commission on Mandates in
Turkey, also known as the King-Crane Commission.
Although Wilson’s primary goals were not achieved
during his lifetime, Ronald Reagan’s use of the shining
city on the hill metaphor exemplifies the long lasting
impact that Woodrow Wilson left on a uniquely
American idea. Despite the numerous setbacks and
failures that Wilson faced, the notion of a superiority
that spawns from America’s inherent difference from
the rest of the world can be traced back to the efforts
and idealism of one man. On one hand, the attitude and
arrogance affiliated with this concept has encouraged
and prompted wars, conflicts, and disputes in an ever-
growing globalized community, leaving the legitimacy
of Wilson’s legacy mired in contest even today. On
the other hand, this attitude has led to incredible
humanitarian aid, conflict resolution, and the protection
of civil liberties internationally. Opponents of American
foreign policy argue that this idea has harmfully shaped
the way we perceive the international community as
well as the way the international community perceives
us; however, I side with Wilson in thinking that it is our
difference that has led to success.

Journal on Constitutional Democracy 43

Herman Moll, Cartographer, “A new map of the north parts of America claimed by France under ye names of Louisiana, Mississippi,
Canada and New France, with ye adjoyning [sic] territories of England and Spain . . .” (1720)

44 Kinder Institute

Democracy and Foreign Relations
in Early America

Nathaniel Brose

Democracy, once an experimental idea discussed agricultural country with few resources and little
among learned European intellectuals, became a opportunity to establish a complex infrastructure,
tangible, practical concept in the early United States. especially for a war against a premier naval and military
Independence changed the political identity of the power. This reliance on foreign assistance to achieve
United States from a loose affiliation of colonies with a liberation from Great Britain is but one example of how
select few intellectual leaders to a democratic sovereign we can use diplomatic history to chart the developmental
nation established and led by political philosophers. trajectory of American democracy.

While certainly a part of the story, the narrative in While diplomatic relations with France continued after
which the nation developed by applying the principles the war with England, with Thomas Jefferson serving
of natural freedom and rights to form a democratic as an official U.S. consul in Paris, the power dynamic of
society is woefully oversimplified. As seen in the these relations changed drastically and changed in a way
letters of Benjamin Franklin and Thomas Jefferson, that reflected the United States’ growing prominence.

“America will never be destroyed from the outside. If we falter and lose our
freedoms, it will be because we destroyed ourselves.” ~ Abraham Lincoln

diplomatic relations and correspondence should also Instead of the dependence seen in Franklin’s letter to
be used to chart how the maturation of democracy was Dumas, the particular language of Jefferson’s letters
reflected in the newfound strength and prominence of home from Paris reveals how the United States was
the United States in relation to, and as it progressively beginning to exert a subdued sway over French politics
grew to become a peer of, long-standing world powers. during France’s own Revolutionary era. For example,
Jefferson’s participation in and influence on the
Examining early instances of collegial diplomatic process of advancing and shaping democracy in France
communications shows the nascent, underdeveloped can be seen in his recounting how “a declaration of the
aspects of democracy in the Revolutionary-era United rights of man, as the preliminary of their work, was
States compared to other countries with longer-standing accordingly prepared and proposed by the Marquis
political and intellectual traditions. For example, the de la Fayette. The appeal to the rights of man, which
1775 letter “Franklin to Dumas” reveals America’s had been made in the U.S. was taken up by France,
“lesser” status relative to other nations by articulating first of the European nations.”2 In underscoring how
how the Revolution in the United States was ultimately the United States’ “appeal to the rights of man” came
supported by a cooperative liaison with France. In the before France’s own moment of democratic transition,
letter, Franklin requests intellectual resources from Jefferson demonstrates not only how the United States
Dumas, telling him how “we are in great want of good no longer relied on France, but also how this pattern
engineers, and wish you could engage and send us two of dependence had begun to shift, with America now
able ones in time for the next campaign, one acquainted being able to lay claim to offering the philosophical
with field service, sieges, etc., and the other with foundation for the evolution of the new French
fortifying sea-ports.”1 Franklin petitions for specialists, political state.
knowing that the cutting-edge knowledge of technology
and skills would not be present in a predominantly

Journal on Constitutional Democracy 45

“The true essence of reconciliation is more than making friends
with nonindigenous people. Our motto is united Australia, one
that respects the land and the heritage of its indigenous peoples and
provides justice and equity for all. I think reconciliation is about
changing the structures that govern us and trying to influence
opinion leaders in whatever way we can.” ~ Jackie Huggins

Another area where we can use diplomacy to gauge Each letter or speech demonstrates a step in the
the strengthening of democracy in America is in the evolution of American political philosophy as the
United States’ dealings with sovereign North American nation grew into a more formal, worldly approach to
Indian nations in territories outside the original thirteen domestic and foreign relations. Democracy became
colonies. As seen in Jefferson’s Second Annual Message a tangible concept in a country that was founded
to Congress, issues related to land ownership and on philosophical and intellectual inquiry into the
commerce in particular exemplify the nation’s continued principles of representation and good government, as
growth. In theory, the sale of the Louisiana Territory is seen in how relations with other counties changed to
by France was considered to be a diplomatic concern, reflect the newfound strength and prominence of the
since it highlighted how, in its infancy, the United States United States.
had no legal mechanism to diplomatically purchase
land. In his message to Congress, however, Jefferson 1Letter from Benjamin Franklin to Charles-
authoritatively dispels these concerns by declaring that: Guillaume-Frederic Dumas, 9 December 1775,
included in “The Revolutionary Diplomatic
In order to remove every ground of difference Correspondence of the United States, Volume 2.”
possible with our Indian neighbors, I [Jefferson] American Memory. December 19, 1775. http://
have proceeded in the work of settling with them memory.loc.gov/cgi bin/query/r?ammem/hlaw:@
and marking the boundaries between us. That field(DOCID+@lit(dc00211))#0020065 (accessed
with Choctaw Nation is fixed in one part and will October 13, 2014). This letter also is available through
be through the whole within a short time. The the National Archives at http://founders.archives.gov/
country to which their title had been extinguished documents/Franklin/01-22-02-0172
before the Revolution is sufficient to receive a
very respectful population, which Congress will 2Jefferson, Thomas. “Autobiography by Thomas
probably see the expediency of encouraging so Jefferson.” The Avalon Project. December 15, 1802.
soon as the limits shall be declared. 3 http://avalon.law.yale.edu/19th_century/jeffauto.asp
(accessed October 6, 2014).
Evident here is how even domestic relations provided
opportunities for the United States government to 3Jefferson, Thomas. “Second Annual Message to
diplomatically wield its own power. While Jefferson’s Congress.” The Avalon Project. December 15, 1802.
goal, here, is clearly to maintain peaceful and respectful http://avalon.law.yale.edu/19th_century/jeffmes2.asp
relations with the Choctaw Nation, it is Jefferson (accessed October 6, 2014).
himself—the “I” in the message—who exerts sole
agency over determining the terms on which these
relations would play out.

46 Kinder Institute

Justifying Imperial Policy in the
American Republic

Conor Fagan

Today, ‘empire’ generally carries with it a distasteful Thomas Jefferson to George Rogers Clark, 1780
connotation. It was not always that way. Jefferson, for
example, referred to the United States as an “Empire of …we shall be at leizure to turn our whole
Liberty” to articulate how the US could become involved force to the rescue of our eastern Country
with the lands surrounding it. Reminiscent of the rhetoric from subjugation, we shall divert through our
of the French Revolution, Jefferson’s “Empire of Liberty” own Country a branch of commerce which the
reflected how he foresaw expansion as a way for the nation European States have thought worthy of the
to spread what he considered to be its universally beneficial most important struggles and sacrifices…we shall
ideals in a way that would be productive for all parties. form to the American union a barrier against
Between Canada to the north and the Spanish holdings the dangerous extension of the British Province
to the west, Jefferson saw plenty of opportunity to pursue of Canada and add to the Empire of liberty an
the Empire. This ideal was shared by others, including the extensive and fertile Country thereby converting
American Diplomat to the Dutch Republic, C. W. F. Dumas. dangerous Enemies into valuable friends.

Udo J. Keppler, The Pull of the Monroe Magnet (1913) Thomas Jefferson to Benjamin Chambers, 1805
The United States often has flirted with empire, but
few realize what real imperial power the American The addition of a country so extensive, so fertile,
government has exerted in its relatively brief history. as Louisiana, to the great republican family of this
Admittedly, the United States has never had an empire hemisphere…has secured the blessings of civil
in the traditional sense: it held very few full colonies & religious freedom to millions yet unborn. By
(even releasing the one true colony it established); it enlarging the empire of liberty, we multiply it’s
operated from a representative government unlike auxiliaries, & provide new sources of renovation,
most traditional imperial powers; and it often exerted should it’s [sic] principles at any time, degenerate;
influence only with support from a faction of the in those portions of our country which gave them
other country involved. Despite these factors and birth..the peace & friendship of the various Indian
a longstanding reluctance to describe the United tribes is among the highly valued advantages of
States as an empire, many today discuss recent this acquisition.
action in the Middle East and elsewhere in terms of
The attentions to the interests of my Western
brethren…having been acts of duty, have no
other merit than the pleasure with which they
were performed…

C. W. F. Dumas in a letter to John Adams, 1781

…when we will have pacified Europe, climb up
to the Top of your Blue Mountains and crowned
with oaken Boughs, survey and bless from thence
the glorious Empire of Liberty, with its happy
Sons and Daughters.

Journal on Constitutional Democracy 47

The Monroe Doctrine (1823) session of Congress proceeded shortly afterwards
to their destinations. Of their arrival there official
In a December address to Congress, President intelligence has not yet been received. The minister
James Monroe set forth his intentions regarding appointed to the Republic of Chile will sail in a
the Republic’s influence in the Americas. As Spain few days. An early appointment will also be made
and Portugal released subjects in South America and to Mexico. A minister has been received from
figures such as Simón Bolívar rose to prominence, Colombia…
Monroe saw a possibility for the United States
to keep out foreign powers, which he sought ***
to accomplish by tying the US to the fledging It is only when our right are invaded or seriously
governments on the neighboring continent. As far menaced that we resent injuries or make preparation
as ideas regarding empire are concerned, what seems for our defense. With the movements in this
like a desire to prevent colonialism by threat of US hemisphere we are of necessity more immediately
involvement eventually would be seen as a driving connected…We owe it, therefore, to candor and to
force of American colonial and imperial interest in the amicable relations existing between the United
South America. States and those powers to declare that we should
consider any attempt on their part to extend their
…a national policy, extending its fostering care and system to any portion of this hemisphere as dangerous
protection to all the great interests of our Union, is to our peace and safety. With the existing colonies
formed and steadily adhered to. or dependencies of any European power we have
not interfered and shall not interfere. But with the
…as a principle in which the rights and interests of Governments who have declared their independence
the United States are involved, that the American and maintained it, and whose independence we
continents, by the free and independent condition have…acknowledged, we could not view any
which they have assumed and maintain, are interposition for the purpose of oppressing them,
henceforth not to be considered as subjects for or controlling in any other manner their destiny…
future colonization by any European powers. a manifestation of an unfriendly disposition toward
the United States.
***
The ministers who were appointed to the Republics
of Colombia and Buenos Ayres during the last

“American imperialism.” Here, I will address this the United States. In terms of territory, it is hard to
disconnect, examining primary sources that provide argue that the United States did not portray features
insight into why there even is a debate about the of empire. Indeed, some of these territories were
veracity of an American empire despite historical obtained through annexation, business takeover, or
proof of its existence. Specifically, I argue that rhetoric government replacement, all of which are clearly
characterizing American imperialism in terms of a imperialist in nature. Still, many deny the nation’s
perceived obligation to expand American ideals as well past as an imperial power, often simply by citing
as a firm belief that others deserve to receive them has the United States’ representative governing system
long obscured the nation’s imperial tendencies. as a stark contrast to other imperial powers. Only
France in the late-eighteenth century, in its fervor
The United States, at different points in time, has to spread the revolution, expanded and attempted to
controlled areas far beyond the 50 states. Puerto Rico, “liberate” neighbors under a nominally representative
Guam, American Samoa, the Philippines, parts of government. Otherwise, empire has been characterized
Panama, Cuba, Haiti, and (pre-state) Hawaii all have by monarchy (in later France, Spain, and Britain) or
been occupied or administered by the government of autocracy (Germany and fascist Italy). Also of note

48 Kinder Institute