Journal on Constitutional Democracy

“But let us begin...” Vol. 3

Cover image: “Henry Lewis, Saint Louis in 1846” (1846)

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

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

JOURNAL ON CONSTITUTIONAL DEMOCRACY

2016-2017 Editorial Board

Senior Editor
Andrew Wisniewsky

Content Editing and Copy Editing
Natalie Fitts

Bryanna Leach
Peyton Rosencrants

Tricia Swartz
Spencer Tauchen

Taylor Tutin

Layout and Design
Alex Galvin
Tom Groeller

Jordan Pellerito
Logan Smith

Aryn Williams-Vann
Tessa Weinberg

JOURNAL ON CONSTITUTIONAL DEMOCRACY
But Let Us Begin...

Table of Contents

Note from the Editor
by Andrew Wisniewsky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Introduction to “But let us begin…”
by Dr. Thomas Kane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Language
Impacting the Inaugural: The Evolution of Farewell Addresses
by Jordan Pellerito . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fight the Power: The Role of Rap Music in American Protest
by Andrew Wisniewsky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Reclaiming the Preamble from Schoolhouse Rock
by Logan Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Can Roses Really Grow from Concrete
by Aryn Williams-Vann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Disharmony
Pigs in the Parlor: Carlin, Pacifica, and the Case for FCC Deregulation
by Spencer Tauchen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
An Imperfect View of Insanity: The Media, Public Perception, and Their Effect on Legislating
by Taylor Tutin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
The Sherman Act and Baseball’s Antitrust Exemption
by Thomas Groeller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Feminism and Conservatism in the Judicial Opinions of Sandra Day O’Connor
by Natalie Fitts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Re-education
The Fundamentals of a Democracy: A Comprehensive Education System
by Bryanna Leach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
By the People: Legitimacy in Revolution
by Alex Galvin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105
"Balance a suspect’s right to a fair trial with the public’s right to know"
by Peyton Rosencrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
Universal Human Rights Norms: Their Potential Natural and Unnatural Consequences
by Tricia Swartz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124
Toward and Against Erasure: A History of Politicizing Multiracial Identity from H.R. 416 to
Loving v. Virginia
by Tessa Weinberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135

Image Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148

6 Kinder Institute

Note from the Editor

Dear Reader,
It is my immense pleasure to welcome you to the third volume of the Kinder Institute’s undergraduate Journal on
Constitutional Democracy: the product of hundreds of hours of work over the past academic year by this talented
group of thirteen student writers and editors. The third volume seems a peculiar time for highlighting beginnings—
at least at the surface. It is our strong conviction, though, that hopeful beginnings can be forged from times of great
uncertainty and division, and for this reason, many of the articles in Volume 3 of the Journal focus on injustices past
and present. As scholars of the Constitution, we are acutely aware of history’s unceasing influence on our world.
The study of the central institutions of our society, many of which find their genesis in our Constitution, is thus our
primary endeavor, as we firmly believe that progress is only possible through the study of what has come before.
The articles that follow cover a wide variety of topics, and they stem from an even wider variety of perspectives. Our
research and analysis focus on primary source documents, the lifeblood of fact. The standard set by our mentors and
peers, past and present, is high. The Kinder Institute is a remarkable reminder of the power that rigorous academic
study can achieve. I believe we have met that standard, and I hope that you enjoy this year’s Journal on Constitutional
Democracy as much we have enjoyed creating it.
Yours truly,

Andrew Wisniewsky

Senior Editor

Journal on Constitutional Democracy 7

8 Kinder Institute

Introduction

I’ve always found the final stanza of Anthony Hecht’s “Third Avenue in Sunlight”—a remarkable poem that J.D.
McClatchy describes as “linking the history of humankind with the individual psyche”—to be one of the more
deeply sad, as well as profoundly productive, moments in the uneven history of confessional poetry.

Daily the prowling sunlight whets its knife
Along the sidewalk. We almost never meet.
In the Rembrandt dark he lifts his amber ale.
My bar is somewhat further down the street.

Here is Hecht, himself a World War II veteran and no stranger to the psychic burden both of having experienced
and having to recall the experience of catastrophic violence, scraping knowingly past the East Village bar where
John, the penultimate line’s “he,” has been since noon, attempting (in my reading of the poem, at least) to outdrink
a similiarly rooted post-traumatic stress that neither prayer nor treatment could discharge.

In context, the poem’s final line overflows with a quiet and pained compassion that young men of Hecht’s generation
knew all too well. I’m always tempted, though, to commute that last line from its historical context into the present,
and to treat the poem’s final image as a beautifully rendered but intensely cynical embodiment of modern life. In my
updated version, the line betrays how we too often choose the bars somewhat further down the street—our bars, in
their many iterations—because they provide us with a means of not having to meaningfully confront evidence of the
various ways in which a society can fail its citizens, or an administration its polity, or a neighborhood its residents.

To push my Hecht-ian metaphor to its breaking point, the thirteen contributors to this year’s Journal choose John’s
bar; in fact, they choose the barstool next to John. Resisting problem-shuffling cynicism at every turn, they dive
headlong into rigorous, sensitive examinations of questions and issues that, precisely because they are difficult to
confront, are central to grappling with the nation’s history, to repairing its egregious failures, and to improving our
global community.

Or, I should say, these are essays that start to grapple, start to repair, and start to improve. Constellating their
work around the theme “But let us begin…”—taken from Kennedy’s inaugural address—this year’s authors, like
the sentiment’s original utterer, have no interest in entertaining the delusion that the most important political
projects can be completed in the life cycle of a presidency or that the most pressing problems that our society
faces can be solved in the pages of a single essay. Instead, they approach the act of crafting a spirited argument as
indistinguishable from the act of inviting a subsequent conversation. Modeling an alloy of conviction and open-
mindedness to which we should all aspire, the students who shaped Volume 3 of the Kinder Institute’s Journal on
Constitutional Democracy approach the essay as the first, necessary step in a much longer and much more collective
process of both re-learning and thinking beyond our national narrative.

Thomas Kane
Editorial Advisor

Journal on Constitutional Democracy 9

10 Kinder Institute

Language

Journal on Constitutional Democracy 11

Impacting the Inaugural: The
Evolution of Farewell Addresses

by Jordan Pellerito

"Eisenhower and President-elect John Fitzgerald Kennedy" (1960)

While the evolution of the farewell address from its successful military careers prior to their presidencies as
origins to the present can be observed by comparing generals who led Americans—Washington in identity
more or less any presidential iteration of the speech and Eisenhower in nationality—into historically pivotal
to George Washington’s “inaugural farewell,” battles. Washington’s unprecedented resignation from
Dwight Eisenhower’s 1961 address presents a unique the presidency after eight years was due in large part
opportunity to chart the development of the genre, to his ailing age and desire to return to private life;
given the various connections between the first and Eisenhower was the first president affected by the
thirty-fourth presidents. Both men had extensive and Twenty-Second Amendment, which legally bound him

12 Kinder Institute

to an eight-year term limit in political dangers, and

Washington’s honor. A devoted gave advice to the people

student of history, Eisenhower concerning choosing

had admired Washington Washington’s successors.

long before assuming the The first farewell address

nation’s highest office, and was ultimately dedicated to

he strived to incorporate the citizens as an explanation

Washington’s values into his for Washington’s retirement,

own life. The similarities a conclusion to his legacy,

between Washington’s and and a reminder of the new

Eisenhower’s farewell nation’s core principles and

addresses speak not only aspirations. Yet, by refraining

to these parallels of history from providing specific

and character but also to policy recommendations,

what has remained generally Washington also provided his

constant about these successor, John Adams, with

speeches’ themes—among the opportunity to mold the

them hope, disappointment, second presidency in his own

successes, and perseverance fashion, without the pressure

in American ideals. However, Alexander Hamilton, “Farewell Address" (1796) of political imperatives
it is in the differences between handed down by a public

Washington and Eisenhower’s parting rhetoric that we figure of Washington’s celebrated stature.

can truly use this comparison to evaluate the changing In 1960, the team of speechwriters preparing Dwight
nature and intent of the farewell address over time. Eisenhower’s farewell address received a letter from the

In 1792, James Madison received a letter from president’s special assistant, Frederic Fox, who suggested
President George Washington, who sought his advice they consider George Washington’s farewell address
and assistance in constructing a valedictory address of during the drafting process, as it seemed applicable to
modesty, thanks, and conclusion.1 Though he would the time and might serve as a guide for Eisenhower’s
hold the executive office for eight years, Washington own remarks.3 Just as Washington’s presidency was
had been president for just three before he confided preceded by international conflict, so was Eisenhower’s,
in Madison and a select few others that he wished a reality that shaped both their farewell addresses as
to retire from public life.2 Washington was wary of they considered how best to maintain peace in a post-
formalizing a goodbye, fearing it could be construed as war world as well as how to best address an American
vainglorious, but he realized a proper farewell to the nation that found itself at a cultural, political, and
people might be necessary for the transition of power historical crossroads (from colonies to constitutional
that would follow his retirement, due to the relatively democracy for Washington, and from the World War
new and fragile state of the country. Hesitant at first, to the Cold War era for Eisenhower).

he eventually came to see the formal farewell address The similarly tenuous historical circumstances over
as an opportunity to help secure stability and prosperity which each man presided resulted in a similar rhetoric
by reiterating the broad ideals of the nation and in each of their speeches, with Eisenhower also seizing
identifying and addressing factors that might fracture the opportunity of a formal departure to refocus the
its foundation—namely, partisan fighting, sectionalism, United States on its founding ideals and most basic
and foreign entanglement. Madison went on to draft principles—unity and liberty. Unlike Washington,
a series of remarks that fit this vision of a speech that though, Eisenhower seemed to have designs beyond
reinforced American values, issued warnings of potential simply reiterating American foundations. Whereas

Journal on Constitutional Democracy 13

Washington addressed Adams with broad language guidance for his successor. Indeed, in a letter relating
and politically un-intrusive instruction that left him to the initial stages of his farewell address, Washington
room to devise his own plan for national progress, confided to Madison that his motivation was not at
Eisenhower addressed John F. Kennedy with far more all to steer the nation in one direction but instead to
specific policy recommendations. What began in 1796 merely underscore the importance of those values that
as a proper parting with citizens that reemphasized promoted unity and the preservation of the union.5
core values in an attempt to bring ease and tranquility The emphasis on principles that ultimately did define
to a transition of power had thus evolved, under the speech can be seen in passages like the one below.
Eisenhower’s watch, into a final opportunity to build
upon his legacy by publicly burdening his successor The Unity of Government which constitutes you
with particular ideas for the future and a particular path one people is also now dear to you. It is justly so;
forward for the United States. for it is a main Pillar in the Edifice of your real
independence, the support of your tranquility at
"Obama White House" (2012) home; your presence abroad; of your safety; of
your prosperity; of that very Liberty which you so
Understanding the nature of Washington’s farewell highly prize.6
address begins with acknowledging that, while
the American presidency was created with him in Though rich in aspirational language, this passage offers
mind, and thus became his to shape, he was by many little in the way of concrete directive. Yes, it contains
accounts uncomfortable with this responsibility. James a broad statement of ideal national ends (prosperity,
Madison, for example, recalled in a memorandum that safety, tranquility, independence); and, yes, it also
Washington believed himself to be highly unqualified contains a statement of the means by which they might
for the position and incapable of great accomplishment be realized (Unity of Government). Negotiating the
in office without the help of those more politically acute minutia of how, exactly, to ensure that Unity prevailed
than he, describing how “he had from the beginning and that desired cause produced desired effect was,
found himself deficient in many of the essential however, left to another man, for another day.7
qualifications.”4 This kind of humble declaration of
deficiency sheds interesting and important light on “I think our people are to be safely trusted
both the intentions for and content of Washington’s with their own destiny. We do not need
farewell address. Specifically, Washington’s belief to protect the American people with a
that his opinion was no longer necessary to validate
policy decisions—and perhaps never was necessary— prohibition against a president whom they
might explain why he chose to provide such broad do not wish to elect.”
ideals, rather than a specific path for the nation, as
~ Sen. Claude Pepper

While Washington avoided concrete discussion of
how Unity of Government could be produced (and, in
turn, could produce American independence), he did
take time in his address to examine specific domains
of policy that might present potential dangers to these
goals—namely, political polarization, geographical
separatism, and foreign entanglements. Regarding the
second, Washington wrote:

While, then, every part of our country thus feels
an immediate and particular interest in union,
all the parts combined cannot fail to find in
the united mass of means and efforts greater

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Farwell Address Mad Libs

My fellow _________________:
(term of endearment)

After ________ years of service, the time has come for me to depart from this great office. I have
(number)

________________ offered my best efforts to this great nation, and I have watched it prosper
(adverb)

amongst its many struggles. Together we have ____________, ____________, ____________.

(verb) (verb) (verb)

I have tirelessly ____________ against ________________, and I have brought jobs back to this

(verb) (plural noun)

________________ country. America, we have come a long way since ________________, and I

(adjective) (historical event)

pray that we continue down this _______________ path towards ______________ and

(adjective) (American value)

_______________. We will only succeed when we have reached the darkest ________________ of

(American value) (noun)

the planet and the ________________ plights of humanity. You have chosen your next leader, my
(adjective)

successor, and I wish ________ the best in this _______________ position. I hope that _______

(him/her) (adjective) (he/she)

will bear in mind not only the successes of these United States, but also our persistent struggle

against _______________ and our dedication to the people of ________________. Let us not

(American issue) (country)

forget the value of education, the necessity of ____________________ economy, and the
(a/an adjective)

irreplaceable pillars of republican values that __________________ instilled in our foundational
(Founding Father)

documents nearly three centuries ago.

Journal on Constitutional Democracy 15

strength, greater resource, proportionably [sic] Another warning that Washington issues in his farewell
greater security from external danger, a less address is to be aware of political parties and the disunion
frequent interruption of their peace by foreign that he and many others believed would inevitably
nations; and, what is of inestimable value, they result from stoking partisan differences.9 Americans
must derive from union…8 had established a national identity in the American
Revolution, but regional, religious, and habitual
While he implies that disagreement between the differences remained a threat to the consolidation of
sections was unavoidable, Washington goes to great the nation precisely because they might be codified in
lengths to underscore that separatism not become so political parties and divisive partisan agendas. Of these
intense as to render the nation collectively vulnerable. parties, Washington wrote:
Knowing the new state to be generally fragile, and
knowing especially that the North and South’s They serve to organize faction, to give it an
geographical and philosophical divisions could foster artificial and extraordinary force; to put, in the
cultural and political conflict, Washington traces a clear place of the delegated will of the nation the will
line between disunity and foreign threats to national of a party, often a small but artful and enterprising
wellbeing. Conversely, while Washington elsewhere minority of the community; and, according to the
acknowledges that Americans often identified more alternate triumphs of different parties, to make
with their region than the Union as a whole, he the public administration the mirror of the ill-
argues here that these regions were nonetheless concerted and incongruous projects of faction,
incentivized to adhere to one another given that the rather than the organ of consistent and wholesome
shared prosperity that came with union outweighed plans digested by common counsels and modified
the benefits of geographic preferences. Still, even by mutual interests.10
in outlining this threat and the benefits of steering
away from it, he again stops short of presenting any Once more, the specificity of the problem of
of the many specific policy initiatives that might stave partisanship and minority factionalism could have
off the problems inherent in excessive regionalism. warranted an equally specific recommendation for
For Washington, susceptibility to division could be policy that might prevent it. But rather than elucidate
avoided simply through a reinforcement of patriotic specific measures for thwarting “the ill-concerted and
sentiment—through encouraging his countrymen to incongruous projects of faction,” Washington merely
value their similarities as Americans more than their presents the argument that polarization was a danger
differences in regional allegiance and identity. to the wholesome mutuality of the nation’s political
system and the liberty that this system was designed to
"President Reagan prepares for his farewell address" (1989) preserve. He addresses the issue, yes, but not the full
spectrum of possible solutions to it, thus leaving to his
successor the freedom to pursue a self-chosen course of
action for combatting the problem of self-interestedly
“artful and enterprising” party factions.

If ensuring the progress and stability of the United
States was one reason that Washington focused on
broad ideals, allowing his successor the chance to shape
the nation’s future at his own discretion was another.
Nowhere is this clearer than early in the speech when
Washington, declaring his intentions for the farewell
address, states: “These [remarks] will be offered to you
with the more freedom, as you can only see in them the
disinterested warnings of a particular friend, who can

16 Kinder Institute

possible have no personal motive to bias his counsel.”11 by design. A letter to Milton detailed Eisenhower’s
Whether we read ‘you’ as the nation’s citizens or Adams specific request for a committee to work on his address
himself doesn’t change Washington’s statement of and particularly emphasized that this committee
purpose here. If his “warnings” reflect concern for the consist of representatives from several government
welfare of the country and its people, their intentionally departments.13 In thinking about the evolution of the
“disinterested” nature reflects how Washington’s true genre, we might begin here, with the nature of the
motive was to make sure to allow John Adams the liberty committee Eisenhower formed. For the first farewell,
to address these warnings, maneuver the presidency, Washington had recruited James Madison, then a
and secure the future prosperity of the country on his House representative from Virginia, and Alexander
own terms.12 The remainder of America’s first farewell Hamilton, then Secretary of the Treasury, individuals
address reflected this same format, with Washington from different corners of the new government whose
articulating broad concerns but refraining from separate areas of expertise may have allowed for a
suggesting the implementation of any specific policy broader insight and appeal. (Or they simply could have
solutions that might pressure or bias his successor. been the best authors Washington knew and individuals
he trusted.) By comparison, Eisenhower’s committee
The presidents that followed George Washington consisted of himself, his brother, speechwriter Malcom
respected the office that he had shaped, yet, given Moos, and Moos’ team of writers, as well as a host of
the different demands of different eras, they naturally outside foreign relations and economic advisors—
deviated from his model as they exercised the office’s an array of voices and actors that demonstrates the
responsibilities and enlarged its sphere of influence growing impact of both the U.S. presidency and the
over time. As we will see in examining Eisenhower’s farewell address on domestic and global governance.
final speech as president, these deviations would
inevitably affect the rhetoric and intention of the Yet even as he was contributing to the evolution of the
farewell address. genre, Eisenhower was quick to recognize many of the
same founding values that Washington focused on in
"Reading copy of Dwight D. Eisenhower’s farewell address" (1961) his farewell address, most notably liberty and unity.
“Throughout America’s adventure in free government,”
When Eisenhower assumed the presidency in 1953, the Eisenhower wrote in the speech’s opening moments,
farewell address had become a time-honored tradition, “our basic purposes have been to keep the peace;
having been delivered by each of the thirty-three to foster progress in human achievement; and to
presidents before him whose executive terms had come enhance liberty, dignity and integrity among people
to a natural conclusion. Eisenhower’s own version of and among nations.”14 Eisenhower even modeled
this custom took nearly two years to complete and some of Washington’s humility in ruminating on his
was penned in multiple drafts by a team of men led farewell, noting in a letter to his brother that partisan
by his brother, Milton. This collaborative effort was rhetoric would not be beneficial to his cause and that
he would rather his address contain “a few homely
truths that apply to the responsibilities and duties of
a government that must be responsive to the will of
the majorities.15 “A collateral purpose,” he concluded in
another close echo to Washington’s own intentions for
the farewell address, “would be, of course, merely to say
an official goodbye.”16

Returning to his team of writers,Eisenhower’s insistence
on a committee may not have been an innovation as
such, but the advancement of America’s role in the
international community after two world wars does
require us to further consider the significance of the

Journal on Constitutional Democracy 17

deliberately diverse team of speechwriters he assembled. Underwood & Underwood ,"The scene when Woodrow Wilson took
It is possible that he needed a team that cut across so
many policy areas because the address was no longer the oath of office" (1913)
as simple as a personal farewell to the government and
people, but now bore the burden of underscoring the complex posed to republican liberty, Eisenhower
increasing complexity of securing the future of the went one step further, specifically identifying
country. During the first half of the twentieth century, evolving technology as a troubling and direct cause
and including Eisenhower’s time in office, the United and consequence of military growth and, in doing
States had almost unwillingly shifted from isolationist- so, starting to frame out a course of policy action
centered foreign policy to interventionist hegemony. for addressing this problem. In beginning to broach
So while Washington advocated for minimal foreign this subject, Eisenhower noted how: “Akin to, and
relations (arguably the most specific policy proposal largely responsible for the sweeping changes in our
in his farewell address), Eisenhower deemed robust industrial-military posture has been the technological
foreign relations necessary to the success and stability revolution during recent decades.”20 Importantly,
of the United States and the globe. To some degree, this never does he feign ignorance to the benefits of
claim was more reflective than prescriptive. Eisenhower technological progress, which he credits in the speech
acknowledged in his speech how the three wars prior with advancing America’s post-war global leadership
to his administration, which called for both domestic role and contributing to the country’s subsequent
unity and foreign empathy, had effectively transformed prosperity in “material progress, riches, and military
the United States into a new world power that had a strength.”21 But while Eisenhower recognized the
responsibility to ensure tranquility at home and abroad. benefits of technological innovation, he also saw the
“Progress toward [the] noble goals” of enhancing threats it posed in the form of potential influence over
liberty and unity both domestically and internationally, government, an oversized and overreaching military,
he wrote, “is persistently threatened by the conflict now and unnecessary spending for research, and he thus
engulfing the world.”17 Like Washington, who explained presented the pursuit of technology as requiring the
in his address that a large military could perilously country to “be alert to the equal and opposite danger
extend its influence into and over the government, that public policy could itself become the captive of
Eisenhower went on to warn that an oversized military a scientific-technological elite.”22 He went on to
might exacerbate the threat of global conflict and present R&D as a singular area of concern. “In this
jeopardize the realization of noble goals. For that reason, revolution,” he advised the country—and, not-so-
he argued that subsequent generations would do well to indirectly, Kennedy—“research has become central; it
avoid the overgrown military establishments that had [has become] more formalized, complex, and costly.”23
proven inhospitable to preserving and extending liberty, Taken together, these last two claims seem a far cry
and particularly hostile toward republican liberty.18 from Washington’s “disinterested warnings.” Rather
And it is in this warning and Eisenhower’s subsequent than simply urge caution, Eisenhower advocates, here,
elaboration of it that we see the farewell address’ most
conspicuous change.

Immediately prior to Eisenhower’s time as president,
the Korean War emerged from the tail end of World
War II, calling again for the kind of military build-up,
which he, like Washington, was hesitant to endorse.
“In the councils of government,” he wrote, “we must
guard against the acquisition of unwarranted influence,
whether sought or unsought, by the military-industrial
complex.”19 But whereas Washington merely issued
a general warning of the threats that a large military

18 Kinder Institute

for policy that disentangles public institutions and CWO Donald Mingfield, USA, “Inaugural Address of John F.
finance from the cost of research and the interests of Kennedy, 35th President of the United States" (1961)
the “scientific-technological elite.”
his concerns, suggestions, and hopes, and he left the
“We choose to go to the moon in this White House disappointed, a private citizen consumed
decade and do the other things, not because by the realization that “so much remains to be done.”27
John F. Kennedy, on the other hand, exemplified the
they are easy, but because they are hard, idealistic, confident character of a new president in an
because that goal will serve to organize and inaugural address that communicated a willingness to
measure the best of our energies and skills.” “pay any price, bear any burden, meet any hardship,
support any friend, [and] oppose any foe to assure the
~ John F. Kennedy survival and the success of liberty.”28 He promised
American resources to the world for the cause of
“Our people expect their president,” Eisenhower wrote liberty and renewed the country’s commitment to
in his formal departure, “to find essential agreement on technological advancement, in spite of the warnings
issues of great moment, the wise resolution of which will Eisenhower had issued. Kennedy assumed the office
better shape the future of the nation.”24 This statement with the weight of over one hundred and sixty years
by itself exemplifies the policy-specific and rhetorical of executive expectations, but welcomed the challenge
pressure that parts of his farewell address applied to with wide-eyed optimism, seeming to respond to
Kennedy. Whereas George Washington went out and dismiss Eisenhower’s pessimistic “but so much
of his way to ensure that his retirement created the remains to be done” when he publicly proclaimed,
opportunity for a new administration to independently “but let us begin.”29
navigate the country’s plights and secure its prosperity,
the language Eisenhower uses here exposes a thinly- 1Washington, George. “Founders Online: To
veiled attempt to conclude his presidency by burdening James Madison from George Washington, 20 May
his successor with his own expectations for the 1792.” National Archives and Records Administration.
future and his own notions of what constituted “wise National Archives and Records Administration,
resolution” to “issues of great moment.” If Eisenhower n.d. https://founders.archives.gov/documents/
was, in fact, trying to bait Kennedy into taking on his Madison/01-14-02-0287, Nov. 7, 2016
policy agenda, it appears as if Kennedy realized this
and didn’t bite. In his inaugural address, delivered 2Ibid
three days after Eisenhower’s farewell and remembered
fondly for its optimism, Kennedy seems to directly
address and even mock Eisenhower’s “advice” when
he promises to “invoke the wonders of science instead
of its terrors”25 and encourages Americans to “explore
the stars, conquer the deserts, eradicate disease, [and]
tap the ocean depths.”26 Kennedy saw potential for
human betterment and world improvement where
Eisenhower directed him to be hesitant and, more
importantly here, saw a chance to carve out his own
legacy where Eisenhower attempted to hold it captive.

Dwight Eisenhower’s goodbye to the nation maintained
a somber tone throughout, as his presidency bade
farewell to decades of U.S. involvement in international
conflict even as it ushered in the Cold War. He voiced

Journal on Constitutional Democracy 19

3Fox, Frederic. “Memorandum To: Mac Moos.” 5, 2017
https://www.eisenhower.archives.gov/research/
online_documents/farewell_address/1960_04_05.pdf. 15Eisenhower, Dwight. “Letter from the President
May 5, 2017 to Dr. Milton Eisenhower regarding farewell
address, May 25, 1959.” www.eisenhower.archives.
4Madison, James. “Founders Online: Memorandum gov/research/online_documents/farewell_
on a Discussion of the President’s Retirement, 5 address/1959_05_25.pdf, , Nov. 9, 2016
Ma ...” National Archives and Records Administration.
National Archives and Records Administration, 16Ibid
https://founders.archives.gov/documents/
Madison/01-14-02-0278, May 5, 2017 17Eisenhower, Dwight. “Transcript of President
Dwight D. Eisenhower’s Farewell Address
5Washington, George. “Founders Online: To (1961).” https://www.ourdocuments.gov/doc.
James Madison from George Washington, 20 May php?flash=true&doc=90, May 5, 2017
1792.” National Archives and Records Administration.
National Archives and Records Administration, 18Washington, “Farewell”
n.d. https://founders.archives.gov/documents/
Madison/01-14-02-0287, Nov. 7, 2016 19Eisenhower, Dwight. “Transcript of President
Dwight D. Eisenhower’s Farewell Address
6Washington, George. “Farewell Address - (1961).” Www.OurDocuments.gov. https://www.
Transcription.” Papers of George Washington. http:// ourdocuments.gov/doc.php?flash=true&doc=90, May
gwpapers.virginia.edu/documents_gw/farewell/ 5, 2017
transcript.html, May 5, 2017
20Ibid
7Ed. Note: See Logan Smith’s examination of the
relationship between Preamble and Constitution for 21Ibid
further discussion of how a language of abstraction
like the one Washington draws on here can inform, if 22Ibid
not supplant, a text of concrete directives.
23Ibid
8Washington, “Farewell”
24Ibid
9Washington, “To James Madison”
25Kennedy, John F. “John F. Kennedy
10Washington, “Farewell” Quotations.” John F. Kennedy Quotations - John F.
Kennedy Presidential Library & Museum. https://
11Washington, “To James Madison” www.jfklibrary.org/Research/Research-Aids/Ready-
Reference/JFK-Quotations/Inaugural-Address.aspx.
12Ibid May 5, 2017

13Eisenhower, Dwight. “Letter from the President 26Ibid
to Dr. Milton Eisenhower regarding farewell
address, May 25, 1959.” www.eisenhower.archives. 27Ibid
gov/research/online_documents/farewell_
address/1959_05_25.pdf, n.d. Nov. 9, 2016 28Kennedy, John F. “John F. Kennedy
Quotations.” John F. Kennedy Quotations - John F.
14Eisenhower, Dwight. “Transcript of President Kennedy Presidential Library & Museum. https://
Dwight D. Eisenhower’s Farewell Address www.jfklibrary.org/Research/Research-Aids/Ready-
(1961).” Www.OurDocuments.gov. https://www. Reference/JFK-Quotations/Inaugural-Address.aspx,
ourdocuments.gov/doc.php?flash=true&doc=90, May May 5, 2017

20 Kinder Institute 29Ibid

Fight the Power: The Role of Rap
Music in American Protest

by Andrew Wisniewsky

Mika Väisänen, “Mos Def ” (1999) 21
Journal on Constitutional Democracy

Advisory Warning The following article examines influential musical works of political protests. In the process of this
analysis, lyrics containing vulgar, violent, and potentially offensive language appear. The editorial board spoke about
this at length, and came to the decision not to censor the potentially offensive words cited in the following article
in any way. The censorship of the artist’s work would be disrespectful and contrary to both the works’ academic
analysis, and the works themselves. The lyrics are analyzed for their rhetorical merit, and are not endorsed by,
nor do they necessarily reflect the views of, anyone who worked on this year’s Journal. It is the Journal’s goal to
contribute to a constructive, positive, and open academic discourse, and we felt the best way to accomplish that
was to keep the lyrics uncensored.

Thank you,
Andrew Wisniewsky
Senior Editor, Kinder Journal on Constitutional Democracy

In April of 1992, Los Angeles was ablaze. were, un-coincidentally, also filled with proclamations
Four of the city’s white police officers had just been of wrongdoing on the part of the LAPD, and white
acquitted of charges in the beating of black L.A. America as a whole, towards black citizens. Four years
resident Rodney King. The assault was caught on later, in the eyes of many, those proclamations had
video, and the officers’ acquittal, in the face of what was finally been publicly vindicated by one video.
widely perceived as incontrovertible evidence, sparked
riots across the city. Over two hundred years earlier, a British customs
The riots brought robbery, looting, and arson. Both the official approached the home of American colonist
Marines and National Guard were called in to assist an Daniel Malcolm, seeking to seize embargoed goods
overwhelmed police force. In the end, fifty-five people from a safe inside the house. Malcolm claimed the
were dead, over two thousand people were injured, and official had no right to search his home and forced him
more than eleven thousand people had been arrested. to leave and get a warrant. The officer returned with
a sealed warrant, only to find Malcolm’s house locked
Chez Bassett, “Representation du feu terrible a Nouvelle Yorck" and, depending on the source, the proprietor backed
(ca. 1778) either by a mob of three hundred violent men or by a
passive group of fifty curious boys. Dubbed “the most
Only a few years before the riots, the Compton, CA- famous search in colonial America,”1 the event is a case
based rap group NWA had burst onto the scene with study in a conflict—between the American colonies
the explosive popularity of their first two singles: and British empire—defined in large part by economic
“Straight Outta Compton” and “Fuck Tha Police.” clashes over taxes and property rights.
The songs were widely damned in suburban living
rooms across America for their brutal vulgarity, violent Following a decade of seething tension and pub-side
content, and generally controversial nature. They arguments, the Battles of Lexington and Concord
lit the revolutionary fuse in April of 1775. In 1776,
22 Kinder Institute Thomas Paine’s incendiary Common Sense was
released, to riotous uproar. Only a few months after
its publication, the Declaration of Independence officially
marked the beginning of a national war designed to
achieve freedom from British rule.

“Music is your own experience, your
thoughts, your wisdom. If you don’t live it,

it won’t come out of your horn.” ~
Charlie Parker

What do these events have in common, if anything?

Both NWA and Paine gave prophetic voice to a provide a standard for understanding protest literature’s
burgeoning and volatile populist sentiment. Further second characteristic: a list of grievances and a right to
than that, they provided a logic for citizens’ rising protest them.
up against established institutions. Because of their While justifying grievance requires clearly establishing
contributions to American political thought and the underlying principles with which they [these
history, works like Common Sense are regarded as grievances] conflict, a statement of principle is also
ideal examples of protest literature; and rap bears important for the longevity of the argument. Grievances
unmistakable similarities of language, substance, are often specific to the time and place in which they
method, and structure to these celebrated revolutionary occur, which inherently limits the petition’s influence
tracts. Despite these similarities, though, rap artists outside of that context. This is arguably the reason that
are routinely condemned for their words while the Jefferson’s more philosophically-inclined passages are
Founding Fathers are valorized for theirs, an unjust among the most cited from the Declaration—because
trend that this article aims to undo by laying out an they can be effectively applied to situations and times
argument for why rap should hold a place in America’s beyond the specific transgressions of King George III
canon of political protest literature. in the American Colonies.

I. U.S. Army, "40th Infantry Division in L.A. Riots" (1992)

Placing modern rap in the context of American protest Yet a statement of grievances is still of utmost
literature requires first determining what exactly importance. In the case of the Declaration, it provides
‘protest literature’ is. For this task, we can use the concrete evidence of what principles the British
Declaration of Independence as a model whose form and government had violated and, in turn, it validates
content establish criteria that can be traced between the colonists’ decision to pursue independence from
foundational and more contemporary examples of this government. In many respects, the delineation
the genre. Three characteristics of the Declaration in of grievances is thus the most basic and essential
particular can be isolated for this purpose of fashioning characteristic of a protest work because it relays the
a blueprint. reason why protest is justified and necessary. Though
this need not always be the case, the Declaration
First, protest literature provides a statement of the accomplishes this task of stating wrongs done quite
broad principles it champions and whose realization it directly, literally in a list:
aspires to bring about, a characteristic that begins to
take shape in the Declaration’s Preamble:

We hold these truths to be self-evident, that all
men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit
of Happiness.2

The broad, quite familiar principles asserted here
constitute a worldview based on the absolute equality
of all individuals and the individual and political rights
that this equality implies and protects. Beyond this, the
colonists also draw philosophical connections between
this worldview and a principle of self-government,
under which authority hails not from a monarch, or
God, but from the citizens that government is created
to serve. This is important not only in itself but also
because the principles and rights being espoused

Journal on Constitutional Democracy 23

He has refused his Assent to Laws, the most II.
wholesome and necessary for the public good.
The Declaration was remarkably populist for its time,
He has forbidden his Governors to pass Laws particularly considering that it was conceived and
of immediate and pressing importance, unless written by intellectual and economic elites. But before
suspended in their operation till his Assent should the Declaration, there was an even more populist, even
be obtained; and when so suspended, he has more inflammatory work of revolutionary protest:
utterly neglected to attend to them. Thomas Paine’s Common Sense.

He has refused to pass other Laws for the James Gillray, “Fashion before Ease; —or— ; A good Constitution
accommodation of large districts of people, sacrificed for a Fantastick Form" (1793)
unless those people would relinquish the
right of Representation in the Legislature, a Paine’s primary goal in Common Sense was similar to
right inestimable to them and formidable to that of the Declaration: to expose the tyrannical realities
tyrants only...3 of the British monarchy and urge the colonies to
pursue self-governance. Like Jefferson, Paine begins
The colonists continue on with an exhaustive list, his protest against the monarchy with an assertion
building the legitimacy of their claims with concrete of the broad principles of correct governance (the
example after concrete example. In this way, their principles, that is, that the crown was in violation of).
argument becomes both practical and theoretical, He depicts a clash between society and government
the specific evidence of the crown’s unjust actions as central to human civilization—society, he writes,
supporting (by negative example) the prior definition “produced by our wants,” and government “produced
of the proper principles and ends of governance. by our wickedness.”6 Society is a positive force, he
Furthering their logic of or for protest, the colonists reasons, and government an unfortunate necessity,
also frame these grievances with the claim that they and the latter therefore should only exist as protection
have endured with “patient sufferance” a “long train from inherent human vices, its true design being
of abuses and usurpations” at the hand of the King.4 security, not only in a militaristic sense, but also in a
Revolutionary violence thus becomes, here, a self- moralistic and economic one.
defensive final resort, undertaken only after and only
because more peaceful options and pleas for redress had Unlike the authors of the Declaration, though, Paine
been exhausted. connects his broad principles with his grievances in a
more abstract way. His primary grievances are with the
Thirdly, protest literature contains a practical means institutional structure of the British government itself,
of reparation, and the most impactful works of protest not with specifically grievous actions of those within
provide solutions that relate directly to the statements the government. He sees the core system, constitutional
of broad principles and grievances by demonstrating monarchy, as rotten and inherently susceptible to
how the latter will be redressed and the former tyranny. His argument relies heavily on Enlightenment
achieved. In the Declaration, Jefferson presents these conceptions of wisdom and virtue, picking apart the
two objectives (redress and achievement) as happening logic of having a monarch who, because he is unwise
simultaneously. His solution, empowering the people and lacking in supreme virtue, requires the popular
to seize their revolutionary right to “institute new
Government,” ensures the implementation of a form
of rule that embodies the broad principles the
Declaration espouses—self-government, equality,
individual liberty—and is thus unsusceptible to the
transgressions under which the colonists previously
(and patiently) suffered.5

24 Kinder Institute

Legend: [Eazy-E]
Red: Statement of grievances I’m tired of the motherfucking jacking
Blue: The broad principles those grievances Sweating my gang, while I’m chilling in the shack, and
contradict shining the light in my face, and for what?
Green: Means of restoring those grievances
They put out my picture with silence
[MC Ren as Court Officer] Cause my identity by itself causes violence
Right about now, N.W.A. court is in full effect
The E with the criminal behavior
Judge Dre presiding Yeah, I’m a gangsta, but still I got flavor
In the case of N.W.A. vs. the Police Department; Without a gun and a badge, what do ya got?
A sucker in a uniform waiting to get shot
prosecuting attorney’s are: MC Ren, Ice Cube,
and Eazy-motherfucking-E by me, or another nigga

[Dr. Dre as The Judge] [Dre] The jury has found you guilty of being a
Order, order, order redneck,
Ice Cube, take the motherfucking stand
Do you swear to tell the truth, the whole truth white bread, chickenshit motherfucker
and nothing but the truth so help your black ass? [Cop] But wait, that’s a lie! That’s a god damn lie!

[Ice Cube as Witness] [Dre] Get him out of here!
You god damn right! [Cop] I want justice!

Fuck the police coming straight from the [Dre] Get him the fuck out my face!
underground [Cop] I want justice!

A young nigga got it bad cause I’m brown [Dre] Out, RIGHT NOW!
And not the other color so police think [Cop] FUCK YOU, YOU BLACK MOTHER-
they have the authority to kill a minority
Fuck that shit, cause I ain’t the one FUCKERS!

for a punk motherfucker with a badge and a gun [Yasiin Bey]
to be beating on, and thrown in jail
Yo, check it one for Charlie Hustle, two for Steady
We can go toe to toe in the middle of a cell Rock
Fucking with me cause I’m a teenager
with a little bit of gold and a pager Three for the fourth comin live, future shock
It’s five dimensions, six senses
Searching my car, looking for the product
Thinking every nigga is selling narcotics Seven firmaments of heaven to hell, 8 Million Stories
to tell
You’d rather see, me in the pen
than me and Lorenzo rolling in a Benz-o Nine planets faithfully keep in orbit
with the probable tenth, the universe expands length
And on the other hand, without a gun they can’t get
none The body of my text posess extra strength
Power-liftin powerless up, out of this, towerin inferno
But don’t let it be a black and a white one
Cause they’ll slam ya down to the street top My ink so hot it burn through the journal
Black police showing out for the white cop I’m blacker than midnight on Broadway and Myrtle

Ice Cube will swarm Hip-Hop past all your tall social hurdles
on ANY motherfucker in a blue uniform like the nationwide projects, prison-industry complex

Just cause I’m from, the CPT Broken glass wall better keep your alarm set
Punk police are afraid of me! Streets too loud to ever hear freedom sing
HUH, a young nigga on the warpath Say evacuate your sleep, it’s dangerous to dream
And when I’m finished, it’s gonna be a bloodbath but you chain cats get they CHA-POW, who dead

of cops, dying in L.A. now
Yo Dre, I got something to say Killin fields need blood to graze the cash cow
It’s a number game, but shit don’t add up somehow
Like I got, sixteen to thirty-two bars to rock it
but only 15% of profits, ever see my pockets like

sixty-nine billion in the last twenty years

Journal on Constitutional Democracy 25

spent on national defense but folks still live in fear like but you push too hard, even numbers got limits
nearly half of America’s largest cities is one-quarter Why did one straw break the camel’s back? Here’s the
black
That’s why they gave Ricky Ross all the crack secret:
Sixteen ounces to a pound, twenty more to a ki the million other straws underneath it - it’s all

A five minute sentence hearing and you no longer free mathematics
40% of Americans own a cell phone
Further Listening: Hip-Hop Protest Songs
so they can hear, everything that you say when you
ain’t home Please Note: This is far from a comprehensive list. An
attempt was made to select songs from a variety of
I guess, Michael Jackson was right, “You Are Not time periods, geographic locations, and styles. Songs
Alone” are ordered by date of release.

Rock your hardhat black cause you in the Terrordome “The Message” by Grandmaster Flash and the
full of hard niggaz, large niggaz, dice tumblers Furious Five
“Fight the Power” by Public Enemy
Young teens and prison greens facin life numbers “Changes” by Tupac Shakur
Crack mothers, crack babies and AIDS patients “People of the Sun” by Rage Against the Machine
Young bloods can’t spell but they could rock you in “Mosh” by Eminem
“Uncle Sam Goddamn” by Brother Ali
PlayStation “Words I Never Said” by Lupe Fiasco
This new math is whippin motherfuckers ass “Glory” by Common and John Legend
You wanna know how to rhyme you better learn how “Alright” by Kendrick Lamar
“Lifting Shadows” by Oddisee
to add “16 Shots” by Vic Mensa
It’s mathematics “We the People” by A Tribe Called Quest

Yo, it’s one universal law but two sides to every story
Three strikes and you be in for life, manditory
Four MC’s murdered in the last four years

I ain’t tryin to be the fifth one, the millenium is here
Yo it’s 6 Million Ways to Die, from the seven deadly

thrills
Eight-year olds gettin found with 9 mill’s
It’s 10 P.M., where your seeds at? What’s the deal
He on the hill puffin krill to keep they belly filled
Light in the ass with heavy steel, sights on the pretty

shit in life
Young soldiers tryin to earn they next stripe
When the average minimum wage is $5.15
You best believe you gotta find a new ground to get

cream
The white unemployment rate, is nearly more than

triple for black
so frontliners got they gun in your back
Bubblin crack, jewel theft and robbery to combat

poverty
and end up in the global jail economy
Stiffer stipulations attached to each sentence
Budget cutbacks but increased police presence
And even if you get out of prison still livin
join the other five million under state supervision
This is business, no faces just lines and statistics
from your phone, your zip code, to S-S-I digits
The system break man child and women into figures
Two columns for who is, and who ain’t niggaz
Numbers is hardly real and they never have feelings

26 Kinder Institute

oversight of a wiser and more virtuous citizenry. Only a after all, need functional authority), Paine still wants
few pages in, Paine states that the English constitution is it to be as small and un-intrusive as possible. After all,
the “base remains of two ancient tyrannies, compounded “even in its best state,” Paine writes, “government is
with some new republican materials,”7 a claim he but a necessary evil; in its worst state an intolerable
contextualizes with a sprawling list of problems, three of one.”13 His answer to the secondary problem of how
which are cited below: to make a government un-evil is simply to drastically
reduce its scope, for “the more simple any thing is, the
First. The remains of monarchical tyranny in the less liable it is to be disordered, and the easier repaired
person of the king. [T]he king is not to be trusted when disordered.”14
without being looked after, or in other words, that
a thirst for absolute power is the natural disease The three elements of protest literature are all present
of monarchy.8 in Common Sense, but it is worth repeating that the lines
between them are blurred. If the Declaration serves as
…it again supposed the king is wiser than those a model of American protest literature, Common Sense
whom it has already supposed to be wiser than thus serves as not only a viable example of the genre but
him! A mere absurdity.9 also one that depicts the innovations protest literature
often requires if it is to successfully accomplish its goal
How came the king to a power which the people of instituting change. It is also relevant to this particular
are afraid to trust and always obliged to check?10 examination of protest literature that Common Sense
presents its argument in the minority. Because it was
Though no concrete grievance is stated, the violations pre-Declaration, lobbying for independence was still
of principle to which constitutional monarchies are considered quite treasonous. In this way, Common Sense
naturally given can clearly be inferred. A system that is perhaps philosophically and methodologically closer
produces leaders who must be “looked after” and that than the Declaration to modern day rap, whose lyrics
citizens feel at all times “obliged to check”—leaders also firmly contradict established political thought
whose “thirst for absolute power” serves as the basis and norms and draw ire for doing so. Paine, in fact,
of fear and distrust—is, we must reason, patently addresses this tension between protest literature and
incapable of providing the various forms of security political reality, as well as the potential consequences
that serve as hallmarks of just, principled governance. of this tension, in the first paragraph of Common Sense :

For Paine, the solution that protest works Perhaps the sentiments contained in the following
characteristically offer is twofold: a popular pages are not yet sufficiently fashionable to
government, without a monarch, and an across- procure them general favor; a long habit of not
the-board restriction of that government. His ideal thinking a thing wrong, gives it a superficial
government involves “the legislative part to be appearance of being right.17
managed by a select number chosen from the whole
body,”11 and he goes on to argue that because these III.
legislators must “return and mix again with the general
body of the electors [every] few months…their fidelity Because protest literature, by its provocative nature,
to the public will be secured by the prudent reflection invites hostility, it can be identified not only by its
of not making a rod for themselves.”12 In other words, content, structure, and rhetorical technique, but also
choice of and regular interaction with representatives by the nature of reactions to its message or delivery.
ensures that the public’s interests and will are being These reactions often make attempts to discredit
secured as the citizens see fit. Whereas the authors of authors’ motives and disposition (particularly their
the Declaration stress that they would have been satiated anger), and they usually contain calls to equanimity,
with the cessation of specific actions on the part of the aspiring to categorize the protest work as a danger to
crown, Paine advocates for a complete system overhaul the safety of the people rather than as a justified call for
as the only viable solution to the colonists’ grievances. political action and rights, in that order.
Even if the government retains sovereignty (it does,

Journal on Constitutional Democracy 27

John Trumbull , “The Death of General Mercer at the Battle of against democratic government. The problems Paine
Princeton, January 3, 1777" (ca. 1781-1831) alludes to are never touched. Rather than exploring
whether or not Paine’s points are defensible, let
This dynamic played out when Reverend Charles Ingis, alone right, the focus in Ingis’ response is instead on
the leader of a loyalist New York Anglican Church, Paine’s tone of voice and the disruptive nature of his
penned a response to Paine titled, “The Deceiver writing. A few centuries later, rap music would receive
Unmasked.” Even in the title, Ingis attempts to render similar backlash.
Paine’s pamphlet irrelevant by attacking the ethos of
its author, and he continues on this track throughout IV.
the body of the essay, noting, without any mention
of the specifics of Paine’s actual argument, how “he NWA’s “Fuck Tha Police” was a particular target
leaves no method untried, which the most experienced of ire for many Americans. Famously, their record
practitioner in the art of deceiving could invent to label received a letter from the FBI expressing the
persuade any people to a measure that was against their Bureau’s disapproval of the song on the grounds that it
inclinations and interest.”18 Following the formula of misrepresented and had the potential to incite violence
other, similar responses to protest literature, Ingis also against police. Members of NWA would wind up on
makes an appeal to the need to calm tensions and bring FBI watch lists.
about social stability in the wake of the political and
moral un-mooring done by Paine’s pamphlet: Straight Outta Compton, on which “Fuck Tha Police”
was the second track, was one of the first albums to
As for himself…a rage that knows no limits and receive a “Parental Advisory” sticker on the front, a
hurries him along like an impetuous torrent. scarlet letter inspired by the political activism of Tipper
Everything that falls not in with his own scheme, Gore. Echoing the FBI’s concerns, censors accused
or that he happens to dislike, is represented NWA of promoting violence against police officers
in the most aggravated light and with the most and other institutions of government, and of generally
distorted features.19 being a threat to the stability of the nation. I imagine
Rev. Charles Ingis would have agreed. But what exactly
With a language of “impetuous torrent” and limitless, was the message of this song? What was its goal? The
reckless rage, Ingis attempts to shut down any discussion importance of the song’s context bears repeating: it was
of Paine’s points by attacking his character. He paints one of the first politically based rap songs that gained
Paine as so radically angry, that even considering his popularity outside of the niche of those who followed
arguments poses a danger to society. This allows Ingis hip-hop closely in the 1990s. This popularity, and the
to never delve—to never even entertain delving—into backlash that came with it, places “Fuck Tha Police”
an examination of the substantive ideas presented squarely within the framework of the primary question
in Common Sense. There is no argument in “The being asked in this paper: Does it—and other rap
Deceiver Unmasked” for the British monarchy or songs like it—fit into America’s protest canon by the
previously established criteria?

In terms of embodying the criteria established by the
Declaration, for NWA, first came a list of grievances.
This song is made up of three separate verses from
three separate members of the group, each of whom
provides a first-person account of why he is unhappy
with the police’s treatment of him, specifically, and the
black community as a whole. Ice Cube’s verse, the first
in the song, opens with:

28 Kinder Institute

Fuck the police! Comin’ straight from the doors, slashed sofas, shattered mirrors, hammered
underground toilets to porcelain shards, doused clothing with bleach
A young nigga got it bad ‘cause I’m brown. and emptied refrigerators. Some officers left their own
And not the other color, so police think graffiti: ‘LAPD Rules.’ ‘Rollin’ 30s Die.’”22
They have an authority to kill a minority20
NWA’s structural innovation of stating grievances first
"Van Ness near 54th Street" (1992) is rhetorically effective in bringing urgency, severity,
and directness to the claims being leveled against the
NWA is nothing if not straightforward, prone, not police. Thinking in terms of the criteria established by
unlike the colonists were, to directly stating grievances. the Declaration, this structure also puts an interesting
Simply (and justly) put, Ice Cube is tired of the LAPD philosophical onus on listeners by demanding that
killing black people and getting away with it because of they realize how the particular transgressions being
the color of their skin. He goes on to say: “Just cause outlined are so transparently unjust that the broad
I’m from the CPT/Punk police are afraid of me.” Here, principles which they violate should be clear without a
it is not just his skin color, but where he was born and preface of the wider ideas at play.
resides—the largely minority City of Compton—that
is at the root of police discrimination and violence. In fact, a direct statement of the principles these
This frustration with discriminatory government grievances contradict is missing entirely from the
institutions is mirrored in the beginning of the song’s song. That broad principles aren’t explicitly stated
last verse, by Eazy-E: does not, however, mean that NWA doesn’t rigorously
engage with them, something the song’s framing
I’m tired of this motherfuckin’ jackin’ device makes quite clear. The song is presented as a
Sweating my gang while I’m chilling in the shack, courtroom proceeding, with NWA members, playing
and shining my light in my face for what?21 the roles of prosecuting attorney, judge, and witness,
putting law enforcement on trial because they do
Here, the problem isn’t that the police are killing him not trust the court system and legal authorities in
and his friends; it’s that they invade their personal space place to adequately police the police. Via this device,
and harass them without cause (a point Eazy-E deftly they implicitly frame police behavior and the courts’
makes with the ‘sweating’ vs. ‘chilling’ binary). Daniel response to it as a collective, comprehensive failure
Malcolm could relate. Context, again, is important. The of the constitutional principle of due process and a
anger evident in the song’s lyrics can be traced directly violation of the individual liberties it exists to protect.
back to “Operation Hammer,” a mass LAPD raid in And in a direct link to the revolutionary doctrines
which the police “smashed furniture, punched holes examined previously, the group’s testimony regarding
in walls, destroyed family photos, ripped down cabinet being harassed in their homes without a warrant and
seeing African-American citizens murdered without
reason provides evidence of a system of rule that
repeatedly and wantonly violates the very broad
principles of ideal governance and the very notions
of unalienable rights outlined in both the Declaration
and Common Sense. That equality, specifically, is not
being maintained and security, specifically, is not being
pursued by the government and its officials are, again,
statements of principle that the group seems to feel it
neither does nor should have to make. In addition, and
very importantly, the song’s courtroom framing device
demands that listeners confront this evidence with
consideration to the context of era. In the two hundred
years since the Declaration, the rights espoused by

Journal on Constitutional Democracy 29

Jefferson had become almost universally accepted—in It simply trades breadth of philosophical explication
theory, if not always in fact. For N.W.A., then, given for passion and directness.
the ubiquity of the Declaration’s proclamations, the
evidence of rights violations that they provide in court Does this harm the rhetorical strength of the song’s
can and should function reflexively: as a statement argument? In some ways, one could argue that it
both of their grievances and the broad principles does. Because the lyrics are so in-your-face violent,
with which their grievances come into conflict. In the many people were turned off from the song before
process, they demand that the listener reckon with a even considering the very important and historically-
larger contradiction: Since whether or not people have driven connections between grievance and principle
these rights is not up for debate, why are they not being drawn in it. On the other hand, the song was
being upheld for or properly applied to black citizens? propelled into the public consciousness in large part
And in what other ways might this failure of just and because of the controversy generated by the violent
principled governance be happening? lyrics, creating a much wider audience for the song’s
argument than it might otherwise have had. As we see
"Tipper Gore, wife of then Senator and later Vice President with other examples of political rap, such as Yasiin Bey’s
Al Gore; sitting with LeVar Burton" (1985) “Mathematics,” elegant poetry does not sell as well as a
stark call to violent action.
Lastly, the song presents a practical means of repairing
these grievances. NWA’s solution, to the horror of The Declaration made a point to emphasize that the
many Americans, was tit-for-tat retaliation against the colonists had exhausted all peaceful avenues of reform
police. Whether it is “a bloodbath of cops dying in before declaring independence and inciting violence.
L.A.” or “taking out a cop or two” with a sniper rifle, Did NWA? Considering the details of police brutality
it cannot be avoided that this is an incredibly violent in the song, would the violence they advocated for have
song. Not only are the words themselves violent; been justified? That the black community’s fight for
they’re delivered with a certain pleasure: “Taking out equal rights had, in 1988, spanned centuries without
a police,” claims MC Ren, “would make my day.”23 satisfactory resolution, perhaps affirmed, for NWA,
Which is all to say that, under the criteria established that peaceful protest had indeed failed. Assessing the
by Jefferson and embodied by Paine, “Fuck Tha Police” validity of that appraisal is not the goal of this article;
can certainly be considered a work of political protest. the point is simply to illuminate how examining the
structure and lineage of protest works facilitates
meaningful discussion of these sorts of tough questions
and historical connections. We can observe a different
approach to rap protest on the other side of the country.

“We must always take sides. Neutrality
helps the oppressor, never the victim.

Silence encourages the tormenter, never the
tormented.” ~ Elie Wiesel

V.

“Mathematics,” by New York rapper Yasiin Bey, was
released about eleven years after “Fuck Tha Police,”
in a wildly different cultural context and market.
In the 1990s, the genre was flooded with the ultra-
violent gangster rap of groups like NWA, and both
on its own and because of the controversy this kind

30 Kinder Institute

of content created, rap became increasingly popular, 2) Defense spending that fails to provide citizens with
ubiquitous on the radio and in the news. This period the sense of security that Paine understood as the
of rap history in many ways culminated in the murders prime directive of government: “69 billion in the last
of two of the most popular musicians on the planet, 20 years/Spent on national defense but folks still live in
Tupac Shakur (2pac) and Christopher Wallace (The fear”28; 3) Government surveillance, more than a decade
Notorious B.I.G.), in 1996 and 1997, respectively. before Edward Snowden, infringing on individuals’
Their deaths served as a grave reminder to many in right to privacy: “40% of Americans own a cell phone/
the rap community that the violence in their songs So they can hear everything that you say when you ain’t
and feuds—sometimes posturing, sometimes not—was home”29; and, finally 4) Systemic racism that flies in the
dangerous. The result, in some circles, was the rise of face of any notion of liberty and equality: “The system
“conscious” rap, which retained the passionate, political break man, child, and women into figures/2 columns
messaging of NWA, but advocated for non-violent—or for ‘who is’ and ‘who ain’t niggas.’”30
at least less explicitly violent—solutions to social ills. “4
MC’s murdered in the last 4 years I ain’t trying to be Paul Revere, "The Bloody Massacre" (1770)
the fifth one the millennium is here,”24 Bey raps in the
second verse of “Mathematics.” In general, the non- These grievances mirror those mentioned in the
violent nature and overarching purpose of the song— Declaration: military overreach, a broken judicial
to promote self- and community-empowerment in the process, lack of representation, etc. In fact, one
face of and as a solution to institutional neglect—is particular line, “Killing fields need blood to graze the
made clear in the first few lines: “The body of my text cash cow,”31 clearly echoes Jefferson’s famous quote
possess extra strength/Power-lift the powerless up out on the Tree of Liberty while cleverly inverting it:
of this towering inferno.”25 instead of the blood of patriots injecting vitality into
the tree of liberty, the blood of American citizens is
This song, as the name suggests, follows a structure used to feed the “cash cow” that symbolizes powerful
based on numbers, with the first line of each verse corporations. Here, Bey draws attention to how a
starting at one, and then continually counting upwards government which values capitalist greed over the
to ten before the verse proper begins. Most notably in well-being of its citizens contradicts the very same
its second iteration, when Bey raps “it’s one universal broad principles around which the Founders shaped
law but two sides to every story,”26 this one-to-ten
succession provides a broad philosophical language for
contextualizing the listed grievances toward the U.S.
government that follow, nearly all of which come back
to the primary dilemma of an ideal governing principle
or “universal law” of absolute equality that is applied
in an egregiously and dangerously unequal manner.
Some of Bey’s grievances include: 1) The criminal
justice system’s oppressive and disproportionate effect
on impoverished communities:

Like the nationwide project-prison-industry
complex
Working-class poor: better keep your alarm set
Streets too loud to ever hear freedom ring
Say evacuate your sleep, It is dangerous to dream

Stiffer stipulations attached to each sentence
Budget cutbacks with increased police presence2

Journal on Constitutional Democracy 31

the new government as well as the particular rights that In contrast to the protest literature of early America,
they intended for this new government to protect. Put in today’s social and political climate, threats against
bluntly, the government is failing to deliver on its most actors prove, it seems, more controversial than threats
basic promises, according to Bey. In this case, instead against institutions.
of defending the nation, the government is recklessly
entangling itself in costly wars on foreign soil, with the In the end, the call for self-government through
blood of patriots now feeding the military industrial revolution is the single most defining characteristic
complex instead of citizens’ liberty. of American political protest works. It, more than any
other, is the nation’s most sacred right; a reset button for
In another parallel to the Declaration and Common bloated government overstretching its natural limits.
Sense, Bey’s song ends with a familiar call for a popular Rap is born out of a black revolutionary tradition. The
revolution designed to abolish the existing government Black Panthers. Malcolm X. Nat Turner. Its language
and bring about a new one: alludes to the principles of America’s founding and
contains a similar rhetorical nuance to the documentary
Numbers is hard and real and they never have history of the nation’s early years. At the same time,
feelings rap contains its own contradictions: simultaneously
But you push too hard, even numbers got limits packaging natural rights dialogue in dense poetic verse
Why did one straw break the camel’s back? while often also seeping in violent misogynistic vitriol.
Here’s the secret The works of the Founding era contain a different
The million other straws underneath it: It is all contradiction: a hypocritical espousal of egalitarianism,
mathematics32 which simultaneously enables slavery and economic
elitism. It is in these contradictions that the nation
The solution that these last lines present reveals the itself exists. These works of protest contain our virtues
song’s populist roots. Bey declares that if enough and shortcomings, and for that they should prompt our
people rise up, they can succeed against a tyrannical most thoughtful consideration.
government. These egalitarian themes bring to mind
the rhetoric of Common Sense, as well as Jefferson’s 1Reid, John Phillip. In a Rebellious Spirit: The Argument
call for the citizens to institute a government “by the of Facts, the Liberty Riot, and the Coming of the American
people, for the people.” Bey could also be appealing to Revolution. Penn State University Press, 1979. pp.
his earlier allusion to the Tree of Liberty, in hopes of 10-40.
reviving the ideal of self-government it metaphorically
represents through revolution. 2Jefferson, Thomas. Declaration of Independence.
National Archives and Records Administration, n.d.
This song contrasts sharply with “Fuck Tha Police” https://www.archives.gov/founding-docs/declaration.
in style, despite their similar substance. While NWA Accessed May 17, 2017.
focuses on unjust actors,citing the specific transgressions
of individual policemen, Bey focuses on the wrongs of 3Ibid
U.S. institutions, such as the prison industrial complex
and military. This could help explain the difference in 4Ibid
reaction to “Mathematics” versus “Fuck Tha Police.”
Along with the fact that NWA’s song was simply 5Ibid
more popular, and thus considered more perilous,
“Mathematics” lacks the visceral nature of NWA’s act 6Paine, Thomas. Common Sense. Lexington: Coventry
of protest. Even though the threat of the final line of House Publishing, 2016. p 1.
“Mathematics,” a widespread uprising against the U.S.
government, is technically much more dangerous to 7Paine, 6.
the status quo than the more individualized threats in
“Fuck Tha Police,” the song received far less backlash. 8Ibid

32 Kinder Institute

9Ibid
10Ibid
11Paine, 7
12Paine, 4.
13Paine, 1-2.
14Ibid
17Paine, 1.
18Ingis, Charles. “The Deceiver Unmasked.” New
York: Samuel Loudon Publishing, 1776.
19Ibid
20NWA. “Fuck Tha Police.” Straight Outta Compton.
Ruthless Records, 1988.
21Ibid
22Mitchell, John. “The Raid that Still Haunts L.A.” Los
Angeles Times, March 2001. Column 1.
23NWA, “Fuck Tha Police”
24Bey, Yasiin. “Mathematics.” Black on Both Sides.
Rawkus Records, 1999.
25Ibid
26Ibid
27Ibid
28Ibid
29Ibid
30Ibid
31Ibid
32Ibid

Journal on Constitutional Democracy 33

"A key identifying the subjects of Howard Chandler Christy’s 1940 painting Scene at the Signing of the Constitution" (1978)

Reclaiming the Preamble from
Schoolhouse Rock

by Logan Smith

34 Kinder Institute

The Preamble, the run-on Supreme Court Justice Joseph Story,

introductory sentence to the U.S. a more complete picture in which

Constitution, is seen, by and large, the Preamble exists in a reciprocal

to be a dead letter in both American relationship with the Constitution

politics and jurisprudence.In Jacobson is painted. Broadly speaking, these

v. Massachusetts (1905), for example, founding scholars believed that

the Supreme Court acknowledged the Constitution living up to its

that “the Preamble indicates the potential required a participatory

general purpose for which the public that was educated in and

people ordained and established the animated by the inherent values of

Constitution,”1 but went on to add the Preamble.

that it “has never been regarded as A decade after the Preamble’s

the source of any substantive power creation, John Adams used his

conferred on the Government.”2 On inaugural address as a platform to

the surface, there is an element of both acknowledge and assuage the

discord to this judicial edict, as the nation’s doubts about the relatively

Court seems to wrestle in the above new federal government and its

excerpts with its own opinions of "Order of procession, in honor of the ability to effectively administer the

the text in question. Specifically, in
noting the Preamble’s significance for Constitution of the United States" (1788) large nation. In outlining what then
served as a reasonable basis for such
indicating purpose, the Court seems
to set the stage for a legal celebration of it, only to skepticism, Adams states that, “men of reflection were
then relegate the Preamble to foundational sideshow less apprehensive of danger from the formidable power
by stripping it of any “substantive power.” This latter of fleets and armies…than from those contests and
claim, while legally correct, ignores the late-eighteenth dissensions which would certainly arise concerning the
and early-nineteenth century history of praising the forms of government to be instituted over the whole
text as a document that might not have been one of and over the parts of this extensive country.”4 Adams’
the law, but that was still important for articulating the juxtaposition of the tangible and potentially immediate
values and ideology that shaped how the law was to be danger of fleets and armies with the latent threat of
enacted and applied. From this historical perspective, fractious/factious debates served as notice to the
the Preamble is substantive, since it enumerates people that it would be foolhardy to allow something
national values like justice, domestic tranquility, so preventable—or at least so manageable—as political
and promotion of the general welfare3 that in turn disagreement to cause the entire system to crumble.
inform the legal framework that the Constitution Turning his gaze in the speech Constitution-ward,
provides. The Preamble’s accomplishments extend Adams then explains how the language and logic of
beyond informing the Constitution’s application, the Preamble in particular provide assurance that these
though. Working in tandem with the Constitution to anxieties concerning disunion had remedy.

safeguard the people from corruption or misguidance, In addressing how to resolve the growing threat of
the Preamble also serves to shepherd citizens in their factionalism, Adams identifies the shared ideals of the
curation of the republic. In this way, the Constitution public—“the purity of their intentions, the justice of
makes up the flesh and bones of America, but without their cause, and the integrity and intelligence of the
the heart that is the Preamble, the body cannot survive. people”5—as what originally brought the confederated

To effectively elevate the Preamble from footnote states into union with one another and could thus help
status, it is critical to first examine its significance in stave off future dissolution. Importantly, Adams derives
the early American historical context alluded to above. these ideals from a system of common values that
Through excerpts from the writings of President John originate in and emanate out from the Preamble. In
Adams, Treasury Secretary Alexander Hamilton, and locating a grounds for assuming that the populace might,

Journal on Constitutional Democracy 35

in fact, organically refuse to give in to “contests and out in a fashion consistent with the overall ideals of
dissensions,” Adams simply samples the Preamble’s text, the nation. For Adams, it would seem that one could
saying that the Founders sought to “form a more perfect in theory follow the law of the Constitution in such
union, establish justice, insure domestic tranquillity [sic], a way that still contradicted the soul of democracy.
provide for the common defense, promote the general It falls to the Preamble, then, to guarantee that this
welfare, and secure the blessings of liberty.”6 In doing perversion does not occur, and that the letter and
this, he is not merely celebrating the achievement of spirit of the law exist in meritorious harmony. In the
the Constitution (he was, after all, not even present case of elections specifically, this harmony is achieved
during its drafting). Instead, he is acknowledging and when the populace is inculcated in the values of the
communicating to the public the supreme significance Preamble and prudently elects officials who reflect
of the Preamble as the foundation for those derivative the voters' own character. Zooming out, because
ideals, like integrity and purity of intention, that would of how this formulation involves and engages the
serve as the moral mechanisms through which the citizens themselves in the process of making sure that
country persevered. an infectious rift between constitutional values and
constitutional practices does not emerge, we begin
Adams goes one step further than assigning abstract to see how thinkers like Adams viewed the Preamble
value alone to the Preamble, though, by grounding as transforming the Constitution from a document
his praise for the text in its influence over an actual composed by intellectuals into a document of, for, and
democratic device, elections. He begins as before, by by the people.
first warning that elections, and democracy as a whole,
are susceptible to partisan corruption, noting that “we Chester Raymond Miller, “Your right to vote is your opportunity
should be unfaithful to ourselves…if anything partial to protect, over here the freedoms for which Americans fight
or extraneous should infect the purity of our free, fair, over there" (1943)
virtuous, and independent elections.”7 Given the extent
to which elections are discussed in the Constitution,
one might expect Adams to have subsequently used it
to explain how and why the independence and virtue of
the electoral process could and would be maintained.
But instead, he turns again to the Preamble, singling
out “people inspired with the same virtues” that he
outlined before as those who were above partiality
and extraneous concern and who thus “merit[ed] the
gratitude of their fellow-citizens.”8 We might interpret
‘gratitude’ in two ways here: as a thanks, expressed in
imitation, to those individuals whose virtuous behavior
and impartial discourse model democratic ideals; or
as a thanks, expressed in the form of a vote, to those
candidates whose behavior and discourse do the
same. Regardless, the virtues that Adams credits with
potentially saving elections from an impure demise are
those named by (or derived from) the Preamble, and in
light of this point of reference, the substantive power
of the document starts to become clear. It is no fanciful
opener, but a text that helps preserve the integrity
of the voter/voter and voter/official relationships,
and, in this, helps ensure that the laws concerning
elections contained in the Constitution are carried

36 Kinder Institute

Nine years before Adams delivered his inaugural, with the responsibility, and more so the power, to shape
another founding father, Alexander Hamilton, similarly the government into an apparatus that acts consistently
endowed the Preamble with a power that toed the line with the broad values on which it was founded. In light
between abstract and substantive by defining it as a text of Hamilton’s argument, by facilitating the observation
that captures and communicates the spirit of American of certain rights, the Preamble echoes the Declaration
popular rights more fully than those documents that of Independence in positing that there are certain values
were designed to do just that. Specifically, in “Federalist that hold precedence over law, whether they are life and
84,” Hamilton champions the use-value of the Preamble liberty or justice and tranquility. This connection gives
by noting that its directive to “secure the Blessings of the nation two different founding dates, the first of
Liberty to ourselves and our Posterity [was] a better which came when the Declaration laid out a concept of
recognition of popular rights, than volumes of those unalienable rights and self-governance, and the second
aphorisms, which make the principal figure in several coming when the Preamble crystallized the general
of our state bills of rights.”9 Here, Hamilton constructs demands of the Declaration in a cogent, substantive
a system of relative valuation by which we can measure standard of values under which the citizenry could
the worth of the Preamble. His goal is not, as it may protect both its rights and its government from
seem to be, to make a mockery of state bills of rights, perversion.
but rather to assert the Preamble’s influence over them
as an ur-text of sorts. Almost as if anticipating Adams’ Joining Adams and Hamilton in promoting the valuable
logic, Hamilton underscores the degree to which function of the Preamble was Supreme Court Justice
the Preamble informs texts commonly seen as more and legal scholar Joseph Story. Where the previous
authoritative than itself. Whereas bills of rights (state thinkers saw the Preamble as substantive for its abstract,
or otherwise) enumerate the rights of citizens, the but no less educative, relation to the Constitution,
Preamble, per Hamilton’s argument, educates citizens Story, writing in the 1830s, took a different route by
in the values that must first be embodied if these rights exploring its more concrete relevance to law, saying
are to be universally acknowledged and practically of the Preamble that “its true office is to expound the
observed. Should this pre-requisite condition not be nature and extent and application of the powers actually
met, he suggests, bills of rights would be reduced to conferred by the Constitution.”10 Story’s word choice is
little more than “aphorisms” or aspirational clichés. interesting here, chiefly ‘expound’ and ‘application,’ as
When imbued with the values of the Preamble, they indicate a reflexive and synergistic relationship in
however, citizens assume responsibility for bringing which the Preamble needs the legal framework of the
these expressions of popular rights to life in a tangible Constitution, which needs the value-based guidance
way that empowers both constitutions (federal and of the Preamble. ‘Expound,’ for example, suggests
state) and the people governed by them. that the Preamble gives clarity to the laws of the
Constitution by providing meaning that goes beyond
“Interpreted as it ought to be interpreted, the technicality of the text (meaning, perhaps, that the
the Constitution is a glorious liberty text itself cannot provide). However, it is ‘application’
that is the most intriguing term, as it strongly implies
document. Read its preamble, consider its that the Preamble holds within it the very guidelines
purposes.” ~ Frederick Douglass for the usage of the Constitution. Like both Adams
and Hamilton, Story seems to have seen the Preamble
Thus far, both Hamilton and Adams have positioned not as a decorative opener, but almost as a Rosetta
the Constitution as a document of governance and the Stone that completed the Constitution, explained the
Preamble as a document that recognizes and animates philosophy which birthed it, and that any application
the consent of the governed by entrusting the public of its text should in turn reflect.

But where did this enigmatic introduction originate?
Who devised America’s momentous first words? The
answer is a name many may not be familiar with:

Journal on Constitutional Democracy 37

Amos Doolittle, “The Looking Glass” (1787) “They have adopted a temporary national
constitution, in the preamble of which,
Gouverneur Morris, a man highly regarded by his unlike our good old one, signed by
contemporaries—including Hamilton—if historically Washington, they omit ‘We, the People,’
anonymous by comparison today. He followed in and substitute ‘We the deputies of the
Jefferson’s shoes as the second ambassador to France
and negotiated the release from prison of Revolutionary sovereign and independent States.’ Why?
War hero, the Marquise de Lafayette. He even wrote Why this deliberate pressing out of view,
the final draft of the Constitution, an honor most the rights of men, and the authority of the
often atributed to James Madison.11 Yet despite these
accolades, only some of his many accomplishments, people?” ~ Abraham Lincoln
his story has largely been erased from public memory.
As for his place in the history of the Preamble in In his rhetoric, Morris echoes the previous three
particular, one may expect that as the author of a thinkers by linking the sustainability and progress of the
document of popular rights, he would have also been nation to the need to reaffirm broad values and identify
a champion of the people. Paradoxically, Morris was their source and function in the people. Explaining his
a staunch aristocrat. He advocated for lifetime terms motivation for writing the Preamble, Morris notes that
for the president and senators, was a loyalist at the “we have seen that people may be numerous, powerful,
beginning of the war, and even wanted the Northeast wealthy, free, brave, and inured to war without being
to secede from the Union at the onset of the War of great,” and he then goes on to locate the origin of said
1812.12 However, in spite of this seeming disdain greatness “in the national spirit…that high, haughty,
for the common man, Morris managed to empower generous, and noble spirit which prizes glory more
non-elites with his words, and by digging somewhat than wealth and holds honor dearer than life.”13 Here,
deeper into his writings, one can see that this seeming Morris proposes that none of the traditional measures
contradiction is rather easily resolved. of success—power, wealth, bravery—are sufficient for
perpetuating union or elevating a nation. Instead, it is
a nation’s soul, a system of values shared by its people,
which gives it life and which underlies and supports its
aspirations for perfectibility. Expanding on this line of
argumentation, he also references the “ages of Pericles,
of Augustus, and of Louis XIV,”14 claiming that they
“were the result, not the cause of national greatness.”15
The distinction Morris draws here between ‘causing’
and ‘being caused by’ greatness is particularly critical to
this essay's argument because of how it acknowledges
the polity’s (rather than the leaders’) central role in
the process of national formation, the maintenance
of national stability, and the achievement of national
prosperity. Without the “high, haughty, generous, and
noble spirit” of the citizens, these historically great
empires would have amounted to nothing; they would
never have “resulted.” We would, he suggests, know
these ages today by other names (though, to be true

38 Kinder Institute

to his argument, we should perhaps not remember "Don’t Sell Your Vote" (1953)
historically great ages by the names of leaders in the
first place). case dismissed the Preamble, Richfield Oil v. State Board
(1946) reinvigorated it with the determination that
With this explication in mind, it becomes clear that “every word” of the Constitution “appears to have been
Morris intended for the Preamble to be a populist weighed with the utmost deliberation, and its force and
petition designed to kindle the spirit of the American effect to have been fully understood. No word in the
nation, beginning with the familiar first words, “We instrument, therefore, can be rejected as superfluous or
the People.”16 In so far as the national spirit springs unmeaning.”18 With this, the Court went further than
forth from the will of the polity—and in so far as it just rejecting Jacobson, seeming to give the Preamble
is the driving force behind national greatness and more authority than it had ever been afforded.
prosperity—this simple phrase seems to both challenge However, this return to the sun ended abruptly when,
and empower the people to seize their position as in 1972’s Roe v. Wade, Roe’s attorney argued that
curators of the republic: responsible for deciding and states are responsible for protecting posterity.19 By
embodying the rights and values that define the nation reassigning this task in particular—this responsibility
and its government and, in this, for determining how for “protecting prosperity”—the Preamble’s role in
the fate of American democracy is expressed. shaping national identity and unity was tossed aside
in favor of a classic republican states’ rights argument.
While we see this sentiment echoed in Hamilton This reference to one of its values marks the last time
and Story’s writings, the works of Morris and Adams the Supreme Court substantively entertained any
contain the clearest parallel. In his inaugural, Adams mention of the Preamble.
notes that he has “often hazarded [his] all and never
been deceived” by the “honor, spirit, and resources of In spite of my defense of the Preamble thus far, I agree
the American people.”17 Invoking the same language with the Court’s general dismissal of it. Simply put, the
of Morris’ speech on the philosophy underlying the Preamble is far too open-ended and vague to serve as
Preamble, Adams here echoes the idea that the fate law; the simplest of justifications for legislative action
of the nation—its ability to endure tests of its will—is would be afforded to a government that sourced its
the result not of the fabric of its leaders but, instead, power to the abstract values of the Preamble. This
the spirit of its citizens. Especially in light of the other elasticity would prove a dangerous weapon, and the
arguments Adams makes in the inaugural, this common Court was therefore right to disarm the Preamble as a
language seems to suggest the degree to which he way to rein in potential harm. The reason I so readily
and Morris attributed a similar importance to the accept the Preamble’s legal inadequacy is simple: Morris’
Preamble—how they both saw it as a text that not only main concern was providing an ideological beacon for
captures the spirit and shared values of the nation, but the Constitution to follow, not delivering ammunition
also empowers the people to seize a central and causal for legal challenges. And this intention bears out in
role in defining this spirit, embodying these values, and the writings of those figures from history who praised
ultimately authoring the narrative of the United States’
rise throughout history.

There is one significant question still unanswered:
What has happened to the Preamble? Story published
Commentaries on the Constitution of the United States
in 1833, so for at least a half-century after Adams’
inaugural, some scholars remained committed to
defending and expounding upon its importance
to American identity and governance. Jacobson v.
Massachussetts (1905) appeared to signal the end of
the Preamble’s legal relevance, but 40 years after that

Journal on Constitutional Democracy 39

History’s Other Overlooked Contenders

40 Kinder Institute

1. Leicester City Football Club 3. America in the 5. The British Navy at the Battle

In the 2015/2016 Barclays Premier Revolutionary War of Trafalgar (1805)
League, English soccer team Leicester
City managed to achieve the impossible Following the Declaration of This naval battle took place during the
by winning the League after narrowly Independence, the former British colonies War of the Third Coalition as part of
avoiding relegation the year before. To had to stand up to the world’s greatest the Napoleonic Wars. British victory
give context, the odds of Leicester’s win power in order to survive. Thanks in helped fend off a French invasion
were 5000/1, while the odds of Simon part to innovative tactics and French of Britain and asserted British naval
Cowell becoming the next Prime intervention, one of the greatest upsets superiority worldwide, a fact that would
Minister were only 500/1. in all of world history was achieved. hold for over a century.

4. Harry S. Truman in the 1. Peter Woodentop, “LCFC lift the
Premier League Trophy” (2016)
1948 Election
2. “Robert McClanahan on a
In his campaign for a second term as Paraguayan stamp for the 1980
president, Harry S. Truman was so Winter Olympics” (1981)
widely expected to lose that the Chicago
Daily Tribune called the race early, 3. Emanuel Luetze, “Washington
printing its November 3, 1948, edition Crossing the Delaware” (1851)
with the headline “Dewey Defeats
Truman.” The only problem was that 4. “Dewey Defeats Truman” (1948)
Dewey didn’t defeat Truman.
5. “Map of the Trafalgar Battle”
(ca. 1850)

2. 1980 USA Men’s Olympic

Hockey Team

The Winter Olympics in Lake Placid
featured a semifinal matchup between
the USSR, a perennial powerhouse
whose team consisted of many
professional players, and the USA, at that
point a perennial non-contender whose
team consisted primarily of amateur and
collegiate players. In what was expected
to be a lopsided victory for the USSR,
the Americans pulled off an historic
victory and went on to claim gold.

Journal on Constitutional Democracy 41

Morris’ work. Story saw the Preamble as that which Address of John Adams.” The Avalon Project : Inaugural
gives context to the Constitution; Hamilton saw it as Address of John Adams. The Avalon Project, n.d. Web.
a document of popular rights; and Adams believed 17 Dec. 2016
it to be a text that informs and guides all citizens of
the nation as they negotiate the various mechanisms http://avalon.law.yale.edu/18th_century/adams.asp
of democracy. As noted before, by demanding the
recognition of certain rights and values, the Preamble 5Adams, John. “The Avalon Project : Inaugural
also echoes the Declaration of Independence in saying that Address of John Adams.” The Avalon Project : Inaugural
there exist certain ideals that hold precedence over Address of John Adams. The Avalon Project, n.d. Web.
positive law. Despite this similarity, the Declaration and 17 Dec. 2016
the Preamble receive grossly different treatment, the
former remembered as a work of art from the genius http://avalon.law.yale.edu/18th_century/adams.asp.
mind of Thomas Jefferson, whereas the latter, in many
ways a revision of the Declaration, only maintains 6Adams, John. “The Avalon Project : Inaugural
relevance through elementary school civics songs. The Address of John Adams.” The Avalon Project : Inaugural
marginalization of the Preamble has gone on long Address of John Adams. The Avalon Project, n.d. Web.
enough. It is well agreed upon that the Preamble has 17 Dec. 2016.
no place in the courts, but they were never its true
home. Instead, it should be re-inscribed on the hearts http://avalon.law.yale.edu/18th_century/adams.asp
and minds of all Americans to serve as a guide as they
curate the republic, as was intended by its framers. 7Adams, John. “The Avalon Project : Inaugural
Address of John Adams.” The Avalon Project : Inaugural
1“Cites to Case Law Relating to the Preamble The Address of John Adams. The Avalon Project, n.d. Web.
Federal Government Must Consider the Impacts 17 Dec. 2016
of Federal Actions on Posterity; Case Cites:.” U.S.
Constitution Preamble, Cites to Case Law. Constitutional http://avalon.law.yale.edu/18th_century/adams.asp.
Law Foundation, n.d. Web. 17 Dec. 2016.
8Adams, John. “The Avalon Project : Inaugural
https://www.conlaw.org/cites2.htm Address of John Adams.” The Avalon Project : Inaugural
Address of John Adams. The Avalon Project, n.d. Web.
2“Cites to Case Law Relating to the Preamble The 17 Dec. 2016
Federal Government Must Consider the Impacts
of Federal Actions on Posterity; Case Cites:.” U.S. http://avalon.law.yale.edu/18th_century/adams.asp
Constitution Preamble, Cites to Case Law. Constitutional
Law Foundation, n.d. Web. 17 Dec. 2016. 9III, Edmin Meese, Matthew Spalding, David Forte,
and David Forte Matthew Spalding. “The Heritage
https://www.conlaw.org/cites2.htm Guide to The Constitution.” Guide to the Constitution.
The Heritage Foundation, n.d. Web. 17 Dec. 2016.
3Morris, Gouverneur. “The Constitution of
the United States: A Transcription | National http://www.heritage.org/constitution
Archives.” National Archives and Records Administration.
National Archives and Records Administration, n.d. 10III, Edmin Meese, Matthew Spalding, David Forte,
Web. 17 Dec. 2016. and David Forte Matthew Spalding. “The Heritage
Guide to The Constitution.” Guide to the Constitution.
https://www.archives.gov/founding-docs/constitution The Heritage Foundation, n.d. Web. 17 Dec. 2016.

4Adams, John. “The Avalon Project : Inaugural http://www.heritage.org/constitution

11Miller, Melanie R. “The Ingenious Gouverneur
Morris - Online Library of Law & Liberty.” Online
Library of Law & Liberty. Liberty Law Site, 28 Nov.

42 Kinder Institute

2012. Web. 17 Dec. 2016.

http://www.libertylawsite.org/book-review/the-
ingenious-gouverneur-morris/

12Safire, William. Lend Me Your Ears: Great Speeches in
History. New York: W.W. Norton, 1997. Print.

13Safire, William. Lend Me Your Ears: Great Speeches in
History. New York: W.W. Norton, 1997. Print.

14Safire, William. Lend Me Your Ears: Great Speeches in
History. New York: W.W. Norton, 1997. Print.

15Safire, William. Lend Me Your Ears: Great Speeches in
History. New York: W.W. Norton, 1997. Print.

16Morris, Gouverneur. “The Constitution of
the United States: A Transcription | National
Archives.” National Archives and Records Administration.
National Archives and Records Administration, n.d.
Web. 17 Dec. 2016.

https://www.archives.gov/founding-docs/constitution

17Adams, John. “The Avalon Project : Inaugural
Address of John Adams.” The Avalon Project : Inaugural
Address of John Adams. The Avalon Project, n.d. Web.
17 Dec. 2016

http://avalon.law.yale.edu/18th_century/adams.asp

18“Richfield Oil Corp. v. State Bd. of Equalization 329
U.S. 69 (1946).” Justia Law. Justia Law, n.d. Web. 11
Jan. 2017.

https://www.law.cornell.edu/supremecourt/
text/329/69

19“Roe v. Wade 410 U.S. 113 (1973).” Justia Law.
Justia Law, n.d. Web. 11 Jan. 2017.

https://supreme.justia.com/cases/federal/us/410/113/
case.html

Journal on Constitutional Democracy 43

Can Roses Really Grow
from Concrete?

by Aryn Williams-Vann

"Willie McGee in his cell at Hinds County Jail, Jackson, Mississippi" (ca. 1945-1950)
44 Kinder Institute

Neither slavery nor involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.1

Through the Thirteenth Amendment to the U.S. "Daisy Bates takes a walk" (ca. 1957)
Constitution, emancipation was born. Through the
actual language of the amendment, however, a loophole of American history. In reality, the movie spends three
was created for certain agendas, a loophole that has hours upholding stereotypes of black inferiority and
led to the opposite of what the amendment intended deviance and, in doing so, promoting attitudes that
to do, a loophole that has plagued society with a myth support the exclusion of black citizens from society.
that has played out over and over again depicting black
people, especially black men, as criminals. “This is an historical presentation of the
Civil War and Reconstruction Period, and
Can we blame the amendment that served as an is not meant to reflect on any race or people
historical turning point toward the nation embracing
and demanding equality for problems today? of today.” ~ Intertitle, The Birth of a
Specifically, can we blame its language of tolerating Nation (1915)
slavery as a form of criminal punishment for continuing
the enslavement of African Americans by providing a According to Birth of a Nation’s “re-telling” of American
model for black criminality and the stereotypes and history, the South spent the years immediately after
consequences associated with it? The simple answer is emancipation on the defensive, trying to protect itself
no, but many, including myself, see the simple answer from blacks in America. For Griffith, proving the “need”
as too simple. Even if unintentionally, the language of
the amendment has validated the attitudes and ideas of
people who wanted and still want to see slavery continue
under any guise available. As I will explain by examining
infamous moments in the cultural and political history
of America from D.W. Griffith’s Birth of a Nation
through the War On Drugs, this validation affirmed
and produced social beliefs and political programs that
were designed to stigmatize and disenfranchise black
men and women by linking criminality to race and, in
a way predicted by the amendment itself, establishing
incarceration as a proxy form of slavery.

I.

So where do we start this discussion of black
criminality in America and what put our nation on a
path toward accepting the continued enslavement of
African Americans? Let us begin with the story of D.W.
Griffith’s 1915 Birth of A Nation. Set during the Civil
War and Reconstruction eras, and originally titled The
Clansmen, Birth of a Nation was heralded during (and
long too long after) its time as a riveting and great tale

Journal on Constitutional Democracy 45

for protection required scenes that depicted the various, stereotype more clearly pushed than when the movie
fabricated ways in which he believed African Americans shows black men lynching other black men. Scenes like
posed a threat to white society. This begins in the movie this are how the film was able to suggest that the Ku
with a mockery of culture. Small, subconscious snippets Klux Klan, like the Confederate Army before it, was
in the film ridicule such things as the way blacks wore designed to protect and rescue the South from crime
their hair and danced, making these traditions out to and madness. Blacks should be excluded from society
be abnormal and even corrosive, rather than part of a by any means necessary seems to be the message
unique history. Blacks were also represented as ignorant here—even if these means involve the violent actions
and promiscuous, and they were almost exclusively cast of groups like the Klan.
in the roles of slaves, servants, and maids. The only
time blacks were given roles outside of these, the movie "Poster for the first-run showing of D.W. Griffith’s Birth of a
presented them as unfit for these roles, warning, for Nation at the Moore Theatre, Seattle" (ca. 1915)
example, that “in the villages the negroes were the office
holders, men who knew nothing of authority, except As Theodore Brantner Wilson notes in The Black Codes,
in insolences.”2 Particularly for the early twentieth- many of the stereotypes that play out throughout the
century viewer, what instances like these did was drive film repeat pre-Civil War and Reconstruction history
a wedge between black and white society, making it and rhetoric. He describes how ideas like “‘you cannot
easier for white Americans to associate difference with make the negro work without physical compulsion’”
inferiority and insolence and to demean and stereotype and predictions about “the early extinction of the
the black community. Negro race in America…were repeatedly made

From here, the movie takes the even more dangerous
step of equating difference not only with cultural
inferiority but also with physical threat. For example,
in one notable scene, white characters streak away in
fear when they encounter black citizens celebrating
emancipation in the streets. In another scene, a white
woman is walking obliviously in the forest, when a
black man stumbles across her. As soon as he spots her,
he sets his eyes to rape her, and the woman jumps off
a cliff to her death rather than endure this fate, after
which the voiceover announces: “For her who had
learned the stern lesson of honor we should not grieve
that she found sweeter the opal gates of death.”3 In both
cases, Griffith correlates blackness with a ubiquitous,
criminal threat looming over and within, and that
could easily spread beyond, the South. In doing so,
he tries to give the white audience cause not only to
demean African Americans but also to cast them out
of mainstream society as a measure of security (while
additionally providing a precursor to modern day black
criminality). The perception of cultural inferiority
turns into a logic for segregation and, eventually in the
movie, violent segregation.

More than just criminal, the movie uses depictions of
blacks as chaotic and savage to shape attitudes against
the African American community. Nowhere is this

46 Kinder Institute

regardless of how well or poorly Negroes might be On the surface, this idea that compromising
working, and continued well into 1866 after the labor the integrity of the Voting Rights Act would be
situation was greatly improved.”4 In other words, the “shortsighted” makes it seem as if the Southern
social concepts conceived of and promoted by the Strategy was committed to at least acknowledging the
movie kept alive the attitudes underlying slavery and political rights of black Americans. Of course, this was
Black Codes, showing how, in 1915, black Americans not the goal of the Southern Strategy at all. Southern
were still subject to forces who desired their exclusion strategists saw encouraging the black vote as a way
from, no matter their position within, society. Griffith’s to drown out African Americans’ political voice by
use of popular culture to try to edge blacks out bringing more “Negrophobe” white voters into the
socially started to spill over into politics as well. As I Republican party fold so that it might gain enough
will examine next, it seems as if people took the social strength to be able to elect people into office who
concepts from the movie and the rage of not being able supported the disenfranchisement of blacks—people
to control blacks through regulations within their own who wanted to take the attitudes promoted in Birth
towns and transformed them into a program designed of a Nation and give them new, stronger life in laws
to push African American citizens out of the political that kept blacks on the social, political, and economic
process. From the racism that films like Birth of a margins. As Murphy and Gulliver note in describing
Nation instilled within American society, the Southern Georgia’s 1966 gubernatorial race, Southern Strategy
Strategy came about. politics turned America into an electoral battleground
that pitted people who wanted equality against those
II. who wanted to sabotage this cause:

In textbook definitions of the Southern Strategy, we This one was not the perfect fight to illustrate the
see how its main goal was to take the ideas about black old and the new. But it was close to being perfect.
inferiority, deviance, and criminality that were widely For Smith had the new black voters, the students,
circulating throughout society and mold them into a the in-migrants with him. Maddox had the wool-
political agenda that ensured that the black voice would hat boys from the boondocks and the branchheads
always be a powerless minority. Hal Murphy and Reg hoping against hope that he would win.7
Gulliver, for example, define it as “a cynical strategy,
catering in subtle ways to the segregationist leanings The language of “perfect” and “fight” is important.
of white Southern voters—yet pretending with high The ideal outcome for the “wool-hat boys” and
rhetoric that the real aim was simply to treat the South “branchheads” seems to be the official political
fairly, to let it become part of the nation again.”5 It demise of those groups—“black voters, students, in-
was perhaps best explained, though, by Kevin Phillips, migrants”—who society had already marginalized.
Nixon’s chief political strategist, in a May 17, 1970,
interview with the New York Times: And in some senses, the Southern Strategy worked.
Many whites went to the Republican Party under Nixon
From now on, the Republicans are never going in 1968 because of a platform that “emphasized…
to get more than 10 to 20 percent of the Negro the fact that the whole problem is really the blacks”
vote and they don’t need any more than that… but “devise[d] a system that recognized this while not
but Republicans would be shortsighted if they appearing to.”8 For example, Nixon’s promise to take
weakened enforcement of the Voting Rights Act. away government assistance was a telling component of
The more Negroes who register as Democrats a larger plan to use states’ rights to appeal to anti-civil
in the South, the sooner the Negrophobe whites rights voters who would throw their support behind
will quit the Democrats and become Republicans. officials who were committed to not acknowledging
That’s where the votes are. Without that the interests and needs of the black community. These
prodding from the blacks, the whites will backslide voters in the 1968 election would become the same
into their old comfortable arrangement with the people who, a little over a decade later, started new
local Democrats.6 stereotypes about laziness in the black community

that were (and still are) coded in phrases such as At this point, we have gone through the pre-history
“welfare queens”9: black women who do not work of black criminality. We have discussed, for example,
but depend on the government for financial help. how Birth of a Nation encouraged white viewers to
These new stereotypes are, of course, problematic in conceive of the black community as both inferior and
general but also problematic because they are factually dangerous, and therefore helped justify the belief that
wrong, based not on statistics but on the carry-over African Americans were unacceptable in and should be
of Southern Strategy (and, in reality, pre-Southern excluded from mainstream society. We have seen the
Strategy) attitudes. Studies conducted as recently as racist attitudes promoted by Birth of a Nation give way
2015 show that there are more white individuals and to a political strategy that used voting to create a more
families who rely on welfare benefits, 40.2% of SNAP institutionalized means of exclusion. At this point in the
recipients, than black families and individuals, who study, blacks have thus been outcast not only socially,
make up only 25.7% of recipients.10 but politically as well. The only thing left, it would
seem, is to show how this desire for exclusion actually
"Silent Protest parade on Fifth Avenue, New York City, morphed into devising ways to physically extract blacks
July 28, 1917, in response to the East St. Louis race riot" (1917) from society, and as I will examine in the next section,
the War on Drugs takes this next step.

“Many people don’t realize that financial
incentives have been built into the drug
war that guarantee that law enforcement

will continue to arrest extraordinary
numbers of people, particularly in poor
communities of color, for minor drug
offenses that get ignored on the other side

of town.” ~ Michelle Alexander

1. Disturbance of the Peace 2. Fighting for Sought After 3. Still Fighting…
Freedom

"Unidentified African American soldier Florida Memory, "Sit-in at Woolworth’s
in Union uniform with wife and two lunch counter: Tallahassee, Florida"
daughters" (ca. 1863-1865). (1960)

Thomas Clarkson, "Storing slaves on a
Trans-Atlantic transport ship with four

slave decks" (1822)

48 Kinder Institute

III. vilify them night after night on the evening news.
Did we know we were lying about the drugs? Of
Though it certainly did not end with him, the War on course we did.12
Drugs started when President Nixon coined the term in
1971. He had identified drug use in America as “public Simply put, Ehrlichman’s quote shows how, while
enemy number one,” and as a solution, he created the operating under the false pretense of social progress,
Special Action Office for Drug Abuse Prevention, first what Nixon’s campaign really wanted to achieve was
trying to treat America’s drug problem therapeutically, the disenfranchisement of minorities and the tearing
and then the Special Action Office for Drug Abuse Law apart of black communities. Drugs were not the
Enforcement a year later, in an attempt to fight the drug problem so much as a convenient means to this end.
trade at the street level and in the courts and prisons.11 The government’s goal, which traces back to D.W.
At face value, curbing drug use is of course not a bad Griffith, was to use drugs to inspire the public to view
thing. As seen in a 1994 interview with former Nixon blacks as a dangerous, criminal element in society
domestic policy chief John Ehrlichman, however, the and, in doing so, to create justification for and public
ways in which, and the reasons for which, Nixon’s War acceptance of a program that did not just push blacks
on Drugs went about achieving this goal played an to the margins of society but removed them from it
immense part both in fueling the fire of the stereotype altogether. As statistics will soon show, this goal became
of black criminality and in raising the consequences of a reality as the presidents who followed Nixon, most
this stereotype: notably Ronald Reagan, continued his crusade.

The Nixon campaign in 1968, and the Nixon Before we get to the statistics, though, we might use
White House after that, had two enemies: the the difference between powder versus crack cocaine as
antiwar left and black people […] We knew we one of many examples that reveal the mechanics of how
couldn’t make it illegal to be either against the war the War on Drugs went about unjustly targeting black
or blacks, but by getting the public to associate the communities. Scientifically, the difference between
hippies with marijuana and blacks with heroin, and crack and pure cocaine is that crack is processed
then criminalizing both heavily, we could disrupt by mixing cocaine hydrochloride with sodium
those communities. We could arrest their leaders, bicarbonate to create chips of cocaine instead of the
raid their homes, break up their meetings, and powder.13 Besides this difference of process, the two

4. Damn…We STILL Fighting 5. Another SNEAKY Fight 6. “911”

Warren K. Leffler, "African American GeorgeLouis, "Angela Davis (center, no
demonstrators outside the White House" glasses) enters Royce Hall at UCLA for her

(1965) first philosophy lecture" (1969)

JillK61, "Trayvon Martin in Hoodie"
(2012)

Journal on Constitutional Democracy 49

Ollie Atkins, "Richard Nixon gives his trademark ‘victory’ sign" need a number of players who are willing to propagate
the stereotypes and lies on which this war is based;
(1968) and the War on Drugs had many helping hands. The
media in particular supported this plan to destroy black
are scientifically similar: powdered cocaine and crack communities with repeated stories that led people to
cocaine are both derived from the coca leaf, and they believe that crack rock was more potent and addictive,
have the same effects, with the exception that powdered and caused more violence, than powder cocaine.17 And
cocaine gives people a faster high.14 they did this, of course, despite the fact that statistics in
no way backed these claims up.
In spite of their similarities, individuals convicted of
distribution and possession of these narcotics received In 2010, under President Barack Obama, the Fair
drastically different minimum mandatory sentences, Sentencing Act (FSA) was passed in order to reduce
starting during the Reagan years of the War on Drugs. the kinds of sentencing disparities just discussed. The
In 1986, the Anti-Drug Abuse Act created a 100:1 justification for the FSA—the glaring reality that
sentencing standard for crack and powder cocaine, African Americans were receiving longer sentences
meaning that distribution of 5 grams of crack cocaine in prisons for comparable offenses to white citizens—
would have a mandatory minimum sentence of five again proves the community-destroying intentions
years for a first offense, while it would take distribution of Nixon and Reagan’s anti-drug campaigns.18 The
of 500 grams of powder cocaine to have the same numbers on which the FSA built its case for new
effect.15 In 1988, the Omnibus Anti-Drug Abuse sentencing standards, however, are necessary to
Act created a wider disparity by calling for “a 5-year fully understand just how sadly effective Nixon and
mandatory minimum and 20-year maximum sentence Reagan were in bringing about said destruction before
for simple possession of 5 grams or more of crack President Obama stepped in. From the early 1970s
cocaine. The maximum sentence for simple possession through around 2005, the prison population rose
of any amount of powder cocaine or any other drug approximately 500%. Digging deeper into this increase,
remained at no more than 1 year in prison.”16 To “drug convictions went from 15 inmates per 100,000
explain this variance, one need look no further than adults in 1980 to 148 in 1996.” To underscore just how
the previous quote from John Ehrlichman. Because it much the War on Drugs preyed (and was designed to
was an “alloy,” crack was much cheaper than powder prey) on the African American community, black men
cocaine, meaning that it was more frequently found were imprisoned during this time at 6.6 times the rate
in low-income, urban areas with high-density African of white male offenders, and it was found in 1995 that
American populations. To use Ehrlichman’s language, one in three African American men between the ages
the purpose of the sentencing laws was thus to target of 20-29 were under some type of imprisonment.19
black communities for disruption and to vilify and Though no statistics proved that drug use was higher
remove their citizens from society at large. When among black males than white males—and though,
you wage an unjust war on an entire community, you again, nothing supported the media’s portrayal of crack
as a uniquely violent threat to society—politicians
and media members were nonetheless successful in
exploiting public hysteria over drugs to generate
support for (or at least negligence toward) a program
that not only propagated the myth of black criminality
but that used this myth in the service of transforming
incarceration into a modern form of slavery.

This myth of black criminality—and, moreover, the use
of this myth to support the political, legal, and physical
exclusion of blacks from mainstream society—is a
recurring theme within America’s history. We saw it in

50 Kinder Institute