Journal on Constitutional Democracy

grounds to be upset with or punish what might be widely Students and teachers are interacting, exhibiting
considered morally negligent behavior. By extension both commendable and less commendable behaviors.
of this logic, he adds, the day-to-day operations of a The teacher is in charge of the reaction to any given
typical school reveal a rift between policy or practice situation in the classroom and has license to ignore,
and curriculum. For example, per a strict adherence to praise, or discipline student behavior. By enforcing
moral relativism, “cheating is wrong” is an opinion and rules in this manner, teachers are exhibiting a form
thus philosophically un-punishable, since, for the moral of morality that relativism fails to provide adequate
relativist, the rules from which punishment derives must philosophical grounding for. They are not treating
be rooted in fact. As a result, the continued enforcement morals as subjective opinions but instead acting upon
of moral rules and the continued instruction in moral them as truths that are bound to pre-defined (and
relativism presents something of an un-resolvable definable) notions of right and wrong. If the school
contradiction that reduces the philosophical cornerstone system leaned into this reality and turned away from
of Common Core pedagogy down to little more than a teaching relativism, morality could be examined and
troubling convenience: dogma at times but disposable discussed more effectively in these situations as a
when necessary. relationship between action, harm, and outcome that
draws on natural rights and utilitarian philosophical
Because the Common Core method of distinguishing traditions (and, in this, on the foundations of
“fact” from “opinion” proves much too narrow and democratic thought). Adjacently returning to Lipman’s
invites contradiction, students should instead be taught objectives, students taught this way would approach
to widen their view when it comes to this distinction: morality with the common good in mind, thoughtfully
to consider credibility when it comes to sources (which considering how questions about what behavior should
can be taught through philosophical reasoning) and to be avoided, and what behavior can be punished, trace
differentiate between a universal moral truth, like an back to careful deliberation over whether an action has
action that will absolutely harm someone else (murder), the potential to harm oneself, another, or a society.
and subjective morality, like cultural ethics (eating or
not eating pork). If students, like those in Barnwell’s class, are eager to
learn morality in alternative ways and go beyond the
To anecdotally contextualize why we need this kind of limits of Common Core curriculum, why not encourage
curricular revision, as well as why it might be successful, this? Why not teach morality and productive discourse,
education writer and teacher Paul Barnwell posed and, moreover, why not teach morality as emerging
a question to his 11th grade English students about from productive discourse? This would not mean that
whether or not they would report a significant other a teacher is telling students to hold particular views,
to the police after learning of a violent felony he or but rather that a teacher would be guiding students in
she had committed.14 Barnwell was disappointed both a discussion of how to consider and construct morality
in his students’ responses—most of the students said and make moral choices, skills that they would be able
their loyalty to their partner was more important than to utilize throughout their lives. And while teaching
the harm that had been done to another—and in their morality may include use of the Socratic method, as
clear lack of experience discussing morality. However, teaching philosophy does, there is a different core
there was still something inspiring about the exercise: purpose: teaching philosophy is teaching students to
he reported that his students were “more engaged than think and ask questions, while teaching morality is
they’d been in weeks” and wanted to discuss morality teaching students to be empathetic and to consider
more often in the classroom. what is right and wrong. Both modes of teaching do,
however, equally encourage one to seek out a very
In the 943 impressionable hours that elementary-age democratically-inclined understanding of others.
students spend in the classroom each year,15 math, When students are questioned about philosophical
science, social studies, and English are the main ideas, the challenge is for them to consider others’
points of focus, often with the ultimate goal of high viewpoints and determine if their own ideas are
test scores in mind. But amidst this, there is humanity.

Journal on Constitutional Democracy 101

Plato’s Allegory of the Cave

Imagine several prisoners, chained by their necks and
legs, staring into the wall of a cave. There is a fire behind
the prisoners, lighting up the wall in front of them with
shadows that are cast by a walkway that is in between
the fire and the prisoners. The prisoners observe people,
animals and objects passing through the cave, but all the
prisoners can see are their shadows, and all they can hear
are muffled noises. The prisoners have lived like this for
their entire lives. The cave is the only truth they know.

One day, one of the prisoners is freed and forced to leave
the cave. The light of the sun in the prisoner’s eyes, which
have before only seen darkness, is blinding. Slowly, he
gains his vision. He begins to wonder about the purpose
of all of the new things he discovers in the world beyond
the cave.

Eventually, the prisoner is excited about his new, better "Plato’s Allegory of the Cave drawing by Markus
world, and wants to share it with his old friends in the cave. Maurer. 1 January 1996"
He goes into the cave and attempts to bring the other
prisoners out of the darkness, but they threaten to kill him
if he removes them from their current state, thinking that
his mind has been ruined and that he is delusional.

This is Plato’s Allegory of a Cave, and his point is that what people view in the world is merely their
perception of reality (shadows), and that we have to be philosophers in order to find the truth of
reality (objects). The people trapped in the cave were blind to all but their own world and would
not accept that there could be another truth. Those with philosophical insight, like the person who
was freed from the cave, have the ability to see past their own perception and to consider others’
perspectives as well as truth of the world, and they have an obligation to try to inform others, even if
they are met with resistance. Students trained to be philosophers will be more likely to view the world
broadly and to seek out the truth of the world, not just the truth of their experience. When we as
citizens cannot think philosophically, we will never be any more enlightened than the men chained to
the cave.

defensible, need revision, or both. When students are and how a vote can influence others in society, more
questioned about morality, the objective is not for informed, compassionate, and consistent decisions can
them to argue their opinion with only logic, but for be made in democracies.
them to also consider what is right—both for them
personally and for those around them—and what the Thomas Jefferson supported public education for
repercussions of their statements and actions are, thus the purpose of upholding democracy and avoiding
putting them in a position where they must balance aristocracy. In 1805, he wrote, “Convinced that the
potential negative outcomes (for self/others) with people are the only safe depositories of their own
potential positive ones (for self/others). In the context liberty, and that they are not safe unless enlightened
of a democracy, it is important for voters to be able to to a certain degree, I have looked on our present
differentiate between logic and emotion and to know state of liberty as a short-lived possession unless the
which one they should use—or in what combination mass of the people could be informed.”16 We have, as
they should use both—as a guide for each issue. When a nation, continuously worked to grant “the mass of
a voter can recognize both his or her own moral code the people” wider access to education, and programs

102 Kinder Institute

"Main Building of the former Black Mountain College, on the ‘They will impress upon their children
the truth, that the exercise of the elective
grounds of Camp Rockmont, a summer camp for boys" (1997) franchise is a social duty, of as solemn a
nature as man can be called to perform;
like No Child Left Behind and Common Core have that a man may not innocently trifle with
been implemented with the well-meaning intention his vote; that every free elector is a trustee
of bettering our educational system through federal
policy. But in an America where the Department as well for others as himself; and that
of Education’s first priority is to “[i]ncrease college every man and every measure he supports,
degree attainment,”17 schools are not prompted to has an important bearing on the interests
look at the larger picture of democratic engagement.
Education today is seen as a means to prepare for of others as well as on his own.”19
“global competitiveness,”18 presumably in economic
markets, yet a person cannot thrive with a college 1Plato. The Republic. Translated by Benjamin Jowett.
degree that is not backed by individualized and applied The Internet Classics Archive by Daniel C. Stevenson,
moral aptitude, and a government cannot survive on 2009. Book VIII.
economic advancement alone.
http://classics.mit.edu/Plato/republic.9.viii.html
A functioning democratic society is one in which the
people consider not only themselves but also others 2Biography.com editors. “Plato Biography.” The
when they vote. The people must be thoughtful and Biography.com website (2015)
selfless, and must extrapolate beyond the present
in order to preserve and/or forge the government 3Plato. The Republic. Translated by Benjamin Jowett.
that they value for the future. Teaching students The Internet Classics Archive by Daniel C. Stevenson,
philosophical thought and moral consideration would 2009. Book VIII.
help achieve these goals. Citizens trained in these skills
would be able to evaluate what is “true” and what is http://classics.mit.edu/Plato/republic.9.viii.html
“right”—and, moreover, what is collectively true and
broadly right—and vote with those interests in mind. 4Plato. The Republic. Translated by Benjamin Jowett.
Forward-minded and empathetic thinking could result The Internet Classics Archive by Daniel C. Stevenson,
in decisions being made whose consequences extend 2009. Book VIII.
past one’s current state of being; our voters would have
the capacity to vote in a manner that would outlast their http://classics.mit.edu/Plato/republic.9.viii.html
own lives and, therefore, maintain a strong democracy
for years to come. 5Plato. The Republic. Translated by Benjamin Jowett.
The Internet Classics Archive by Daniel C. Stevenson,
2009. Book VI.

http://classics.mit.edu/Plato/republic.7.vi.html

6“Democracies in the World.” Nobelprize.org (2014).
Nobel Media. 11 Jan 2017.

https://www.nobelprize.org/educational/peace/
democracy_map/production/index.html.

7“English Language Arts Standards” Common Core
State Standards Initiative. 24 February 2017.

http://www.corestandards.org/ELA-Literacy/

Journal on Constitutional Democracy 103

8Albares, Nick, Michael Leachman, Kathleen 17The Department’s FY 2016-17 Priority Performance
Masterson, and Marlana Wallace. “Most States Have Goals. U.S. Department of Education. March 2015.
Cut School Funding, and Some Continue Cutting.” 13 Dec. 2016.
25 Jan. 2016. Center on Budget and Policy Priorities.
26 Feb. 2017. http://www2.ed.gov/about/overview/focus/goals.html

www.cbpp.org/research/state-budget-and-tax/most- 18Overview and Mission Statement. U.S. Department
states-have-cut-school-funding-and-some-continue- of Education. 13 December 2016. http://www2.ed.gov/
cutting. about/landing.jhtml

9Fisher, Robert. Teaching Thinking: Philosophical 19Bailey, R. W., William Cutter, and Elihu
Enquiry in the Classroom. Cassell, 1998. 26-50. Burritt, editors. The Patriarch; or family library
magazine. Vol. II, George A. Peters, 1841, pp.
10“English Language Arts Standards » Reading: 21-22, 7 April 2017. https://books.google.com/
Informational Text » Grade 9-10.” Common Core
State Standards Initiative. 26 February 2017.

http://www.corestandards.org/ELA-Literacy/.

11“fact.” Oxford Dictionary. British and World English
ed. 27 Feb. 2017. https://en.oxforddictionaries.com/
definition/fact.

12“opinion.” Oxford Dictionary. British and
World English ed. 27 Feb. 2017. https://
en.oxforddictionaries.com/definition/opinion.

13Justin McBrayer. “Why Our Children Don’t Think
There Are Moral Facts.” 2 March 2015. The New York
Times. 13 Dec. 2016.

https://opinionator.blogs.nytimes.com/2015/03/02/
why-our-children-dont-think-there-are-moral-
facts/?_r=0

14Paul Barnwell. “Students’ Broken Moral
Compasses.” 25 July 2016. The Atlantic. 13 Dec. 2016.

https://www.theatlantic.com/education/
archive/2016/07/students-broken-moral-
compasses/492866/

15Mona Chalabi. “American Kids Will Spend An
Average Of 943 Hours In Elementary School This
Year.” 4 Sept. 2014. FiveThirtyEight.

http://fivethirtyeight.com/datalab/american-kids-
will-spend-an-average-of-943-hours-in-elementary-
school-this-year/

16Thomas Jefferson in a letter to Littleton Waller
Tazewell. “Thomas Jefferson on Educating the
People.” The Center for Internet Research. 13 December
2016. tcfir.org/opinion/Thomas%20Jefferson%20
on%20Educating%20the%20People.pdf.

104 Kinder Institute

By the People: Legitimacy in
Revolution

by Alexander Galvin

Horst Sturm, “Besuch Ho Chi Minhs bei Pionieren, bei Berlin” (1957)

Journal on Constitutional Democracy 105

In his now immortal 1863 “Gettysburg Address,” the United States exerted its foreign influence in order
Abraham Lincoln famously described the United to subvert, rather than remain disentangled from,
States as a “government of the people, by the people, other colonies’ popular revolutions. A key example
and for the people,”1 modeling with language the of this practice occurred during the 1960s and 1970s,
principle of self-governance that is pivotal to American when Ho Chi Minh’s revolution against colonial rule
identity. What exactly, though, does “self-governance” in Vietnam was not only deemed illegitimate by the
mean? In its essence, which Lincoln embodies with United States government but also actively oppressed
his trio of prepositions, self-governance refers to a through the use of American military force. Given the
government that is under the control and direction seeming contradictions that mark this history, we must
of the inhabitants of a political unit rather than an re-adjust our frame and instead ask: “what makes a
outside authority. The history of this concept is thus revolution legitimate in the eyes of the United States?”
closely aligned with colonialism, in so far as claims
to self-governance are often made when power shifts Joint Chiefs of Staff , "Letter from Ho Chi Minh to President
from the hands of the colonizers to the hands of the Harry S. Truman" (1946)
colonists (a shift often preceded by and predicated
on violent, popular revolution). The very notion of In the case of the United States’ own popular, founding
freedom in America is rooted in both this concept of revolution, the Declaration of Independence still serves
self-governance and this historical context of shifting as the ultimate source material for establishing the
power structures. In part because of the strength of its cause’s legitimacy. This is for two reasons: because,
founding narrative, the United States has come to be in it, the Founding Fathers crafted a moral claim to
seen by its citizens as the epitome of self-governance individuals’ right to self-governance; but also, and more
and related principles, creating a spirit of exceptionalism importantly, because they listed the transgressions
among Americans, often to the understandable disdain committed against them by their colonizer, Britain, and
of the greater global community. Despite this attitude petitioned for their redress.2 The inclusion of the list
of being a unique, shining bastion of Enlightenment
thought (and Enlightened political practices),
Americans are, of course, far from the only persons
to have broken the chains of colonialism and declared
their right to self-governance. Since the American
war for independence, the inhabitants of many
other nations have fought popular revolutions with
similar intentions and to similar results, though these
revolutions have oftentimes not gained support from
the United States government. Why would this be? If
other oppressed peoples were following in the physical
and philosophical footsteps of the American colonists,
wouldn’t the United States want to support them and
further scale back colonialism in order to promote the
very ideals of freedom and self-governance in which its
own national identity is founded?

This question of ‘why’ has no singular answer. Some of
the revolutions in question went unsupported by the
American government out of simple pragmatism and
the desire to remain un-involved in foreign conflicts.
This passive, pragmatic isolationism was not always
the case, though. In some instances, the government of

106 Kinder Institute

of grievances gave Britain a chance to bypass conflict Ho Chi Minh argues in his Declaration that they no
by adhering to colonists’ demands that the mother longer had legitimate authority over the region and
country improve the daily lives and acknowledge the that, because of this, it was instead the prerogative of
fundamental rights of its American subjects. In not the Vietnamese people to create a new political state.
redressing these wrongs, Britain ultimately justified
revolution by proving itself an ineffective governor of At the heart of the Vietnamese Declaration of
its North American colonial holdings and, in doing so, Independence is thus a simple, well-reasoned claim to a
tacitly creating a living argument of sorts in support populace’s right to govern itself—a claim, moreover,
of the colonists’ desire to practice self-governance. For that we would assume the United States would have
the purposes of this article, it is important to note that supported, since it was not so different from the one
the Declaration of Independence is only an argument for at the heart of its own story of national independence.
self-governance and not an argument for democracy, But this document went largely unanswered by the
the core value of American politics to this day; nor United States. Loyalty to their French allies, despite
for federalism, which would be embodied years later disagreements on decolonization, was valued more by
in the U.S. Constitution; nor for capitalism, a major the American government than Vietnam’s claim to self-
component of the modern conception of American governance. And it was at this point that the United
economic freedom. States missed an opportunity to support the creation
of an independent state that might have been rooted in
This exact same mode of establishing the legitimacy ideals and principles similar to its own.
of revolution resurfaced nearly two centuries later in
the Vietnamese Declaration of Independence, written by “It was patriotism, not communism, that
Ho Chi Minh on September 2, 1945, at the close of inspired me.” ~ Ho Chi Minh
World War II. Like his American counterparts, Ho
Chi Minh uses the Vietnamese Declaration not only to As the years after 1945 went by, Vietnam emulated
stake a moral claim to his people’s right to political the liberal West less and less, and Ho Chi Minh
self-determination but also to identify and demand the instead pursued self-governance by forging stronger
redress of wrongs committed by the French colonial ties with the communist Soviet Union. Returning to
government (also like his American counterparts, he an important distinction drawn earlier in this article,
saw his demands summarily rejected by the colonial this was all done because the outcome Ho Chi Minh
government in power). Unlike its American antecedent desired more than anything was not ideological but
though, Ho Chi Minh’s document does not just cite ill fundamental in nature: the liberation of the Vietnamese
treatment by the colonizer to justify its rightful claim to people from colonial rule and the establishment of a
liberation but also France’s abdication of control over self-determined political state. Or, conversely, it was an
Vietnam to Japan at the beginning of WW II. In tracing outcome that could be pursued under the banner of
this history, Ho Chi Minh shows that the Vietminh communism as easily as it could be under the banner
fought back against the Japanese during the War and of democracy. The U.S., however, could not abide this
even attempted to ally themselves with their French communist alliance, leading to the Vietnam War.
colonizers to evict the Axis power from their shores.
The French, he goes on to explain, not only denied this Regardless of these communist ties, Ho Chi Minh’s
partnership, but under the command of the Japanese, argument for the necessity of revolution was every bit
carried out attacks against the Vietnamese fighters that as legitimate in the 1960s and 1970s as it was in 1945,
were attempting to free themselves and the French from because the same principle underlying it, a colony’s
Japanese occupation. When the War finally ended and right to self-governance in the face of an ineffective
the Japanese surrendered to the Americans, they left colonial government, still applied. Zooming out, in
Vietnam only to have the French resume control over both universal terms and in terms of the particular
it. Since the French did not defeat the Japanese but logic of the United States’ Declaration of Independence,
boldly assisted them in their occupation of Vietnam, no matter what style of government a colony pursues
via revolution, as long as it is a government by, of

Journal on Constitutional Democracy 107

WWW3ii, “D16 Armor manoeuvers in elephant grass din Vietnam’s oppressor, France, and to the United States,
Vietnam during Operation Waco in 1966” (1966) the symbolic champion of freedom and decolonization
and one of two global superpowers at the time that
and for the people of that colony, that revolution is could have put the needed pressure on France to
legitimate. And zooming back in, since the Declaration withdraw from its colonial holdings in Indochina.
of Independence thus philosophically grants legitimacy He brings the United States into the argument by
to Ho Chi Minh’s communist revolution, it likewise quoting from the American Declaration of Independence
exposes how American efforts to subvert it were both regarding the right to life, liberty, and the pursuit of
morally illegitimate and directly contradictory to the happiness;3 similarly, he engages France by quoting
standards and ideals of the United States’ founding. from its own revolutionary founding document,
the 1789 Declaration of the Rights of Man, regarding
Ho Chi Minh opens the 1945 Vietnamese Declaration equality of birth for all of mankind.4 With the quote
of Independence by strategically appealing both to from the American Declaration, Ho Chi Minh attempts
to sway the United States to support decolonization in
Vietnam by demonstrating their shared philosophical
commitment to natural rights. Beyond pointing out
this common language of and commitment to rights,
though, he also makes a more methodological case for
U.S. support by listing the abuses carried out against
the Vietnamese by the French in a fashion that mirrors
the list of British abuses and usurpations that the
American colonists delineated in justifying their own
revolutionary cause. Through these tactics, Ho Chi
Minh’s appeal gains practical and moral footing, since
he shows how Vietnam has both the same reasons and

108 Kinder Institute

the same aspirations for pursuing decolonization that appears in the American list of grievances when it is
the United States had almost 150 years prior. noted that the colonists were being deprived of “the
benefits of trial by jury” and transported “beyond seas,
In quoting from the French Declaration of the Rights of to be tried for pretended offenses.”8 Framing these
Man, he inverts this rhetorical strategy. Specifically, by claims in the context of the larger argument being
creating a system of comparison between the abuses made in both documents, if a government is unable
listed in the Vietnamese Declaration and the liberal to fairly impose law and order for the benefit of the
principles championed in the Declaration of the Rights of citizenry instead of in spite of it, then that government
Man, Ho Chi Minh shows that the colonial occupation is unfit to rule over the populace in the first place and
of Vietnam by France is illegitimate—or, alternately, thus worthy of displacement.
that decolonization is necessary—because France has
long violated the very same moral code by which it This pattern of concretely proving the unfitness of
justified its own revolution against tyranny. colonial government and using this proof as the basis
for justifying revolution continues. For example, Ho
As in the American Declaration of Independence, perhaps Chi Minh goes on to make the vivid claim that the
even more than its philosophical argument, it is the French “have mercilessly slain [our] patriots” and
Vietnamese Declaration’s highly specific list of abuses “have drowned [our] uprisings in rivers of blood,”9
committed by the colonial ruling power that justifies which parallels the American claim that Britain “has
its call for independence. In regards to appealing to abdicated government here, by declaring us out of
the United States for support, it is also of the utmost [their] protection and waging war against us.”10 Much
importance to Ho Chi Minh’s argument that the actual like in the field of law and order discussed before, a
abuses listed in both documents are quite similar. In government’s legitimate claim to authority is weakened
the Vietnamese Declaration, Ho Chi Minh starts off by when its power, in this case military, is used to oppress,
describing how the French “have set up three distinct rather than protect, the people it rules over. Although
political regimes in the North, the Center and the enemies to the state and populace can be both foreign
South of Vietnam in order to wreck national unity and and domestic, there is a breaking point between
prevent people from being united.”5 This use of artificial maintaining order and actively oppressing a people.
divisions to threaten political autonomy and solidarity
compares to Britain’s “abolishing the free system of Gonzo Gooner, “Crater Valley" (2011)
English laws in a neighboring province, establishing Also from the Vietnamese Declaration: “In the fields of
therein an arbitrary government, and enlarging its economics, [the French] have fleeced [the people] to the
boundaries, so as to render it at once an example and fit backbone, impoverished [the] people, and devastated
instrument for introducing the same absolute rule into [their] land. They have robbed [them] of [their] rice
these colonies.”6 In the Americans’ case, this threat to fields, [their] mines, [their] forests, and [their] raw
autonomy manifested itself in acts of tyranny in and
by a neighboring province, while for the Vietnamese,
it took the form of creating three distinct governments
to rule over one people. Regardless, in both cases, the
colonizer attempts to divide and conquer in order to
assert absolute, tyrannical rule over the colony. Ho
Chi Minh also cites that the French have “built more
prisons than schools,”7 both an indication of how
state infrastructure in general and the justice system
in particular were corruptly being used to punish the
people instead of serve them as well as a reminder
of how this corruption was inconsistent with French
law. This suspension of the same legal rights that are
ensured to citizens of the mother country likewise

Journal on Constitutional Democracy 109

materials.”11 By comparison, the American Declaration Man meticulously lays out seventeen points that the
grieves how Britain had “plundered [our] seas, ravaged common people have a right to and that government
[our] coasts, burned [our] towns, and destroyed the lives must abide by, many of which, as I will show, are
of [our] people.”12 This abuse of resources and people negatively invoked by Ho Chi Minh as incontrovertible
is what truly allows the authors of each document to evidence that the French colonial government had
distinguish between right governance and tyranny. failed to uphold the political and moral standards
In both cases, the colonizer was working for its own on which the modern French state was founded. For
benefit in spite of the suffering that such pursuits example, Ho Chi Minh describes how, in politics, the
brought to colonial citizens—the hallmark of unjust French had “deprived [the] people of every democratic
government. Finally, the most famous justifying claim liberty,”15 which goes against the French Declaration’s
for the American Revolution regarded the imposition of third point, that “all sovereignty resides essentially in
taxes without consent,13 which is almost exactly echoed the nation”16 and therefore its people. The previously
by Ho Chi Minh’s statement that the French “have cited inhumane laws that had been established to
invented numerous unjustifiable taxes and reduced [the] oppress the Vietnamese people17 go against the 1789
people, especially [the] peasantry, to a state of extreme document’s fifth point, which argues that all “law can
poverty.”14 Taxes may seem trivial when compared to only prohibit such actions as are hurtful to society.”18
violent action and economic-via-ecological devastation, That the government had been broken up into three
but in this context, we have to account for how a political regimes in order to “prevent [the] people
government’s right to collect taxes from its people from being united”19 and obstruct their participation
stems from its commitment to applying tax revenue in politics violates the sixth point’s claim that “every
toward the maintenance of a safe and prosperous citizen has a right to participate” in their government.20
society for its citizens. When taxes support the abuse Insofar as arbitrary punishment often walks hand-in-
of a citizenry, as was the case in Britain and France’s hand with the practice of building “more prisons
colonial holdings, then the topic becomes far less trivial. than schools,”21 this practice contradicts the seventh
It is worth reiterating that the American colonists and point of the Declaration of the Rights of Man, which
Ho Chi Minh issued many of the same grievances states that “no person shall be accused, arrested, or
toward Britain and France and that they became the imprisoned except in the cases and according to the
moral backbone to their calls for independence. And it forms prescribed by law.”22 Violent brutality against
is doubly worth reiterating that, despite this connection, dissention is also described by Ho Chi Minh in the
America never answered the Vietnamese call to support Vietnamese Declaration,23 proving that the military
its pursuit of self-governance. was not present for the benefit and protection of the
people in Vietnam and, in this, that the twelfth point
“The principle of self-government cannot of France’s Declaration was no longer being upheld.24
A very specific grievance of Ho Chi Minh’s regards
be violated with impunity. The individual’s the “obscurantism [practiced] against [the] people”
by the French colonial rulers in order to oppress the
right to it is sacred—regardless of class, Vietnamese.25 This obscurantism flies directly in
the face of how the Declaration of the Rights of Man’s
caste, race, color, sex, or any other accident fifteenth point calls for government transparency.26
or incident of birth.” ~ Susan B. Anthony
Similar to many other historical instances of colonial
The greatest irony of all, though, is not that the abuses abuse, the Vietnamese had also been “forced to use opium
carried out against the Vietnamese resembled those and alcohol,”27 weakening the people as a whole and thus
carried out against the American colonists; instead, it robbing them of their liberty and security, in violation
is that these abuses were committed by the French, of the French revolutionary claim that every man has a
whose own revolutionary doctrine espouses the same right to “[resist] oppression.”28 The last three statements
Enlightenment thought, principles, and practices in the Vietnamese Declaration grieve the destruction of
whose violation the Vietnamese Declaration sheds light
on. Specifically, France’s Declaration of the Rights of

110 Kinder Institute

land, the stealing of property, the oppressive imposition Kennan, a Foreign Service Officer under Truman
of unfair taxes, and the exploitation of workers by the who, in 1947, explained how his strategy consisted
bourgeoisie.29 The thirteenth and fourteenth points of a “containment of Russian expansive tendencies”
of the French Declaration specifically address the need through the application of “counter-force at a series of
for fair tax and economic practice, while the second constantly shifting geographical and political points,
point addresses the well-known right to property in corresponding to the shifts and maneuvers of Soviet
liberal democracies.30 All these points were broken by policy,” in order to “break-up or [gradually mellow]
the colonial practices of the French. In general, the Soviet power.”31 In his book For the Soul of Mankind,
French Revolution was fueled by a desire to throw off Melvyn P. Leffler further elaborates on Kennan’s
the oppressive tax codes implemented by the French policy by noting that “so long as the United States had
Estate System of the Ancien Régime of King Louis XVI superior power, it had to employ it to deter, contain,
and to redress other abuses visited upon the natural and roll back communism.”32

As it relates to the Vietnam War, commitment
to this strategy of containment was more or less
inseparable from concerns derived from domino
theory, which asserted that the fall of a noncommunist
state to communism would precipitate the fall of
noncommunist governments in neighboring states.33
Motivated by a fear of this theory’s realization, the
Johnson administration was particularly “worried that
revolutionary nationalism in the third world would
escape their control,”34 and Johnson himself noted

Burdell Moody, CAT IV, “Night Operation” (1967) Nomad Tales, "Haiphong, Vietnam" (2008); Jean-Pierre
Dalbéra, "La statue de lOncle Hô (Can Tho, Vietnam)" (2011)
rights of the citizenry. These very abuses of economic
and natural rights were being reinstituted by the French with caution that “if [the communists] take South
colonial government in Vietnam, which leads, as Ho Vietnam, they take Thailand, they take Indonesia, they
Chi Minh argues, to the philosophically straightforward take Burma, they come right back to the Philippines.”35
conclusion that if the French people were justified in This anxiety over the spread of communism was so
overthrowing their oppressive government system, so pervasive among United States government officials
too were the Vietnamese. that “justifying escalation regularly invoked the
domino theory and affirmed that Vietnam was a test
Returning to the question posed in this article’s case of America’s strength and credibility.”36
introduction, despite the morally ambiguous—and
some might argue morally de-legitimizing—disconnect
between the United States’ founding ideals and its
actions in the Vietnam War, there was a reason for
America’s involvement. Situated in the mid-twentieth-
century, bipolar struggle for world power and influence
between the United States of America and the Soviet
Union, the Vietnam War served as a testing ground
for the implementation of containment strategy and
the observance of domino theory. Containment theory
is no better defined than by its inventor, George F.

Journal on Constitutional Democracy 111

Therefore the United States entered the Vietnam https://www.unc.edu/courses/2009fall/hist/140/006/
War and refused to allow the communist revolution Documents/VietnameseDocs.pdf
to succeed purely out of pragmatism—because
“walking away or negotiating from weakness could be 6Declaration of Independence. 4 July 1776. The Avalon
dangerous” under the prevailing foreign policy theories Project. 2008. Yale Law School: Lillian Goldman Law
and strategies of the day.37 If not for the global power Library. 16 Dec. 2016.
struggle of the Cold War and the fact that Ho Chi
Minh’s anticolonial revolution was so closely tied to http://avalon.law.yale.edu/18th_century/declare.asp
international communism and support for and from the
Soviet Union, the United States would have never been 7“Declaration of Independence, Democratic Republic
involved in the first place. The subversion of Ho Chi of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
Minh and his revolution may have violated the callings 2009. University of North Carolina at Chapel Hill. 16
of the Declaration of Independence, but given the scale Dec. 2016.
of Soviet policy regarding the aggressive expansion of
communism—and the magnitude of fear in the United https://www.unc.edu/courses/2009fall/hist/140/006/
States about this the success of this expansion—the Documents/VietnameseDocs.pdf
Vietnam War was considered justifiable at the time
even though, to this day, it still lacks moral standing. 8Declaration of Independence. 4 July 1776. The Avalon
Project. 2008. Yale Law School: Lillian Goldman Law
1Lincoln, Abraham. “The Gettysburg Address.” 19 Library. 16 Dec. 2016.
Nov. 1863. The Avalon Project. 2008. Yale Law School:
Lillian Goldman Law Library. 16 Dec. 2016. http:// http://avalon.law.yale.edu/18th_century/declare.asp
avalon.law.yale.edu/18th_century/rightsof.asp
9“Declaration of Independence, Democratic Republic
2Declaration of Independence. 4 July 1776. The Avalon of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
Project. 2008. Yale Law School: Lillian Goldman Law 2009. University of North Carolina at Chapel Hill. 16
Library. 16 Dec. 2016. Dec. 2016.

http://avalon.law.yale.edu/18th_century/declare.asp https://www.unc.edu/courses/2009fall/hist/140/006/
Documents/VietnameseDocs.pdf
3Declaration of Independence. 4 July 1776. The Avalon
Project. 2008. Yale Law School: Lillian Goldman Law 10Declaration of Independence. 4 July 1776. The Avalon
Library. 16 Dec. 2016. Project. 2008. Yale Law School: Lillian Goldman Law
Library. 16 Dec. 2016.
http://avalon.law.yale.edu/18th_century/declare.asp
http://avalon.law.yale.edu/18th_century/declare.asp
4Declaration of the Rights of Man. 26 Aug. 1789. The
Avalon Project. 2008. Yale Law School: Lillian 11“Declaration of Independence, Democratic Republic
Goldman Law Library. 16 Dec. 2016. of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
2009. University of North Carolina at Chapel Hill. 16
http://avalon.law.yale.edu/18th_century/rightsof.asp Dec. 2016.

5“Declaration of Independence, Democratic Republic https://www.unc.edu/courses/2009fall/hist/140/006/
of Vietnam.” 2 Sept. 1945. Vietnamese Documents. Documents/VietnameseDocs.pdf
2009. University of North Carolina at Chapel Hill. 16
Dec. 2016. 12Declaration of Independence. 4 July 1776. The Avalon
Project. 2008. Yale Law School: Lillian Goldman Law
Library. 16 Dec. 2016.

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

112 Kinder Institute

13Declaration of Independence. 4 July 1776. The Avalon The Avalon Project. 2008. Yale Law School: Lillian
Project. 2008. Yale Law School: Lillian Goldman Law Goldman Law Library. 16 Dec. 2016.
Library. 16 Dec. 2016.
http://avalon.law.yale.edu/18th_century/rightsof.asp
http://avalon.law.yale.edu/18th_century/declare.asp
21“Declaration of Independence, Democratic Republic
14“Declaration of Independence, Democratic Republic of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
of Vietnam.” 2 Sept. 1945. Vietnamese Documents. 2009. University of North Carolina at Chapel Hill. 16
2009. University of North Carolina at Chapel Hill. 16 Dec. 2016.
Dec. 2016.
https://www.unc.edu/courses/2009fall/hist/140/006/
https://www.unc.edu/courses/2009fall/hist/140/006/ Documents/VietnameseDocs.pdf
Documents/VietnameseDocs.pdf
22Declaration of the Rights of Man. 26 Aug. 1789. The
15“Declaration of Independence, Democratic Republic Avalon Project. 2008. Yale Law School: Lillian
of Vietnam.” 2 Sept. 1945. Vietnamese Documents. Goldman Law Library. 16 Dec. 2016.
2009. University of North Carolina at Chapel Hill. 16
Dec. 2016. http://avalon.law.yale.edu/18th_century/rightsof.asp

https://www.unc.edu/courses/2009fall/hist/140/006/ 23“Declaration of Independence, Democratic Republic
Documents/VietnameseDocs.pdf of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
2009. University of North Carolina at Chapel Hill. 16
16Declaration of the Rights of Man. 26 Aug. 1789. Dec. 2016.
The Avalon Project. 2008. Yale Law School: Lillian
Goldman Law Library. 16 Dec. 2016. https://www.unc.edu/courses/2009fall/hist/140/006/
Documents/VietnameseDocs.pdf
http://avalon.law.yale.edu/18th_century/rightsof.asp
24Declaration of the Rights of Man. 26 Aug. 1789. The
17“Declaration of Independence, Democratic Republic Avalon Project. 2008. Yale Law School: Lillian
of Vietnam.” 2 Sept. 1945. Vietnamese Documents. Goldman Law Library. 16 Dec. 2016.
2009. University of North Carolina at Chapel Hill. 16
Dec. 2016. http://avalon.law.yale.edu/18th_century/rightsof.asp

https://www.unc.edu/courses/2009fall/hist/140/006/ 25“Declaration of Independence, Democratic Republic
Documents/VietnameseDocs.pdf of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
2009. University of North Carolina at Chapel Hill. 16
18Declaration of the Rights of Man. 26 Aug. 1789. Dec. 2016.
The Avalon Project. 2008. Yale Law School: Lillian
Goldman Law Library. 16 Dec. 2016. https://www.unc.edu/courses/2009fall/hist/140/006/
Documents/VietnameseDocs.pdf
http://avalon.law.yale.edu/18th_century/rightsof.asp
26Declaration of the Rights of Man. 26 Aug. 1789. The
19“Declaration of Independence, Democratic Republic Avalon Project. 2008. Yale Law School: Lillian
of Vietnam.” 2 Sept. 1945. Vietnamese Documents. Goldman Law Library. 16 Dec. 2016.
2009. University of North Carolina at Chapel Hill. 16
Dec. 2016. http://avalon.law.yale.edu/18th_century/rightsof.asp

https://www.unc.edu/courses/2009fall/hist/140/006/ 27“Declaration of Independence, Democratic Republic
Documents/VietnameseDocs.pdf of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
2009. University of North Carolina at Chapel Hill. 16
20Declaration of the Rights of Man. 26 Aug. 1789. Dec. 2016.

Journal on Constitutional Democracy 113

https://www.unc.edu/courses/2009fall/hist/140/006/
Documents/VietnameseDocs.pdf

28Declaration of the Rights of Man. 26 Aug. 1789. The
Avalon Project. 2008. Yale Law School: Lillian
Goldman Law Library. 16 Dec. 2016.

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

29“Declaration of Independence, Democratic Republic
of Vietnam.” 2 Sept. 1945. Vietnamese Documents.
2009. University of North Carolina at Chapel Hill. 16
Dec. 2016.

https://www.unc.edu/courses/2009fall/hist/140/006/
Documents/VietnameseDocs.pdf

30Declaration of the Rights of Man. 26 Aug. 1789. The
Avalon Project. 2008. Yale Law School: Lillian
Goldman Law Library. 16 Dec. 2016.

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

31“Kennan and Containment, 1947.” Office of the
Historian. United States State Department. 16 Dec.
2016. https://history.state.gov/milestones/1945-1952/
kennan

32 Leffler, Melvyn P. For the Soul of Mankind. New
York City: Hill and Wang, 2008. pp. 145.

33“Domino theory.” International Relations. 6 Feb.
2009. The Encyclopedia Britannica. 16 Dec. 2016.
https://www.britannica.com/topic/domino-theory

34 Leffler, Melvyn P. For the Soul of Mankind. New
York City: Hill and Wang, 2008. pp. 220.

35Leffler, Melvyn P. For the Soul of Mankind. New
York City: Hill and Wang, 2008. pp. 220.

36Leffler, Melvyn P. For the Soul of Mankind. New
York City: Hill and Wang, 2008. pp. 220.

37Leffler, Melvyn P. For the Soul of Mankind. New
York City: Hill and Wang. 2008. pp. 217.

114 Kinder Institute

Scott335, “Amanda Knox leaves the prison in Perugia” (2011)

Balance a suspect’s right to a fair
trial with the public’s right to know

by Peyton Rosencrants

Journal on Constitutional Democracy 115

The full essence of a jury trial is both not at all and brings them to the real perpetrator. After a brutal
quite difficult to capture. In the Fifth and Sixth interrogation, the investigators get the damning piece
Amendments, the U.S. Constitution describes jury of evidence needed to send the defendant to a quickly
trials in a way that can be generally understood, yet approaching trial. The prosecution, always a beacon
certain elements remain elusive. of enlightened civil service, manages to overcome a
laundry list of obstacles to ensure that justice is served.
No person shall be…deprived of life, liberty, or (Of course, the dedicated viewer already knew that
property, without due process of law.1 Prosecutor Jack McCoy or District Attorney Adam
Schiff would win the day.) On the other side, the soon-
In all criminal prosecutions, the accused shall to-be-found-guilty defendant is represented either by a
enjoy the right to a speedy and public trial, by an bumbling public defender who strains to grasp even the
impartial jury of the state and district wherein the rudiments of trial law, or an expensive, amoral defense
crime shall have been committed.2 attorney who attempts at every turn to circumvent
justice. In the end, whether we get to see it or not, that
In regards to citizens’ understanding of jury trials, bombshell the prosecution uncovered in the middle
“speedy” and “public” are familiar enough concepts, and of the trial is always enough to persuade the unbiased,
“innocent until proven guilty” provides a functionally representative jury. All of this adds up to a show, like so
colloquial frame of reference for arguably the most many other crime dramas, that misrepresents process
imperative trial pre-requisite: impartiality leading up in a way that creates a strong correlation between arrest
to a verdict. The more complex element, though, is and guilt that is not at all reflective of reality. And when
what exactly the “process” component of “due process” this misrepresentation is shown hundreds of times to
entails. On one hand, a total understanding of due millions of viewers, it eventually has the potential to
process by the general public is not essential; after all, create and reinforce a bias against defendants that, in
we have to put some degree of trust in professionals destroying the presumption of innocence, takes with it
and elected officials in the legal community to ensure the constitutional mandate of impartiality.
that it is observed. However, it is still incumbent on
the public to have a broad understanding of just how Of course, we tell ourselves, these portrayals are
integral due process is to preserving impartiality. harmlessly fictional. This often inaccurate and nearly
Ironically, it is in learning more about the first that always pro-prosecution depiction of the criminal
our grasp of the second loosens. Specifically, as the justice system is a product of entertainment television,
public relies more and more on various forms of media and we can expect much more from “respectable” news
to learn about jury trials and how the courts operate, outlets like mainstream print and broadcast journalism.
the misinformation about the legal process that these Unfortunately, the mainstream media oftentimes
sources trade in ultimately obstructs individuals’ ability presents various aspects of the legal process in ways
to maintain impartiality, particularly for defendants. that similarly compromise impartiality in the audience.

Take, for instance, the long-running Law & Order The purpose of this article is to shed light on the causes
series. In 2012, a blogger created a spreadsheet of and effects of the mainstream media’s various failings
episode outcomes for all 20 seasons of the show, which when it comes to crime reporting. To do this, I first
adds up to 450 different judicial storylines.3 He found will discuss how many Americans get their news and
that 80 percent of the episodes ended in wins for the provide brief context for how news acquisition relates
prosecution—either an outright or implied guilty to the overall issue that this paper is examining. Next, I
verdict, or a plea bargain. By the final season in 2010, 0 will provide an overview of the Society of Professional
percent of the cases ended in not guilty verdicts. Like Journalists’ Code of Ethics, which governs the work of
most procedural dramas, Law & Order and its numerous journalists. I will then use the Code of Ethics to analyze
spin-offs are relentlessly,and problematically,formulaic. the language, structure, and extent of crime coverage
In essence, the flawed roadmap is this: The police in order to expose the mainstream media’s consistent
chase down a winding trail of leads that eventually failure to uphold the Code, the implications of this

116 Kinder Institute

Udo Keppler, “At the stake” (1903) the first live, televised trial,5 and how frequently it still
promotes the same biases to the viewing audience.
failure for public understanding of legal processes,
and the dire impact that this lack of understanding Pamela Smart was a media center specialist from New
can have on defendants. Finally, I will consider how Hampshire, but you would not know that fact from
journalists can avoid these ethical failings and, instead, the press coverage, which quickly labeled her the
promote the due process and impartiality provisions of “killer teacher.”6 Her husband, Greg, was murdered by
the Constitution by reporting on crime in a way that a group of boys from one of the high schools where
does justice to the requirement that journalists be both she worked. Pamela had engaged in a relationship with
transparent and accountable. the convicted “trigger man,” Billy Flynn, who said he
killed Greg because Pamela asked him to. Pamela was
tried and convicted of being an accomplice to first
degree murder, but not before she was the subject
of a relentless media circus that created the bias of a
typical Law & Order episode by giving the prosecution
a much larger platform than the defense to reach (and
manipulate) the public. For example, a star witness for
the prosecution sat down for an in-depth TV interview
long before taking the stand, giving the public early
access to inexpertly parsed and entirely one-sided
information about the case. Doing their part to sway
the public, rather than objectively provide facts, the
police not only told the media about key pieces of
evidence, most notably a wiretapped conversation
that was central to the prosecution’s case, but also
publicly interpreted what this evidence meant and
how it implicated Smart. At no point did the potential
effects of this imbalance start to become clearer than
two days before jury selection, when the local news
station ran an hour-long special called, of all things,
Anatomy of a Murder, for which it took out a full-page,
promotional newspaper ad and which was largely told
from the perspective of Bill Spencer, a local broadcast
newscaster for WMUR in New Hampshire who had
quickly become the face of the media in Smart’s case. To

“The gallery in which the reporters sit has O.B. Buell, “Charles Fitzpatrick addressing the jury” (1885)
become a fourth estate of the realm.” ~
Lord Thomas Babington Macaulay

How we get our news

In 2016, television continues to be the most widely used
news platform, with 57 percent of adults getting their
news “from TV often,”4 a statistic that is problematic
only because of how frequently the content of the news
still looks like it did during the trial of Pamela Smart,

Journal on Constitutional Democracy 117

contextualize Spencer’s role in the circus, immediately will go through these principles one-by-one, applying
after the airing of Anatomy of a Murderer, he appeared them to media coverage of cases going to trial for the
on nationally broadcast shows, including Inside Edition purpose of identifying the potential collateral damage
and Sally Jesse Raphael, at one point getting into an created by those instances when the SPJ’s Code of
argument with Pamela Smart’s mother, proclaiming Ethics is not upheld.
“the real evidence in this case astronomical” right
after he said he thought Pamela was getting a fair trial. “Seek the Truth and Report It”
Convicted by the media long before she was tried in a
court of law, the actual legal process for Pamela Smart This principle may seem to be one of the most basic
seemed little more than a formality. tenets of journalism—to essentially be implied by the
very term ‘journalism’—but even in high-profile cases,
In the film Captivated: The Trial of Pamela Smart, inaccuracies can be reported. In 2016, for example, the
Spencer boasts, “Nobody ever really knows a whole Center on Juvenile and Criminal Justice (CJCJ) did a
story until a case goes to trial and people under oath content analysis of media coverage during the Jerry
start telling what happens. In this case, I’ve managed Sandusky trial, examining 217 mainstream news articles
to tell everybody everything about this case before it published during the 10-day trial. One of the biggest
even goes to trial. I mean, the whole thing is out there.” concerns was the high number of inconsistencies
Only this was not true—he told but one side of the and errors in the coverage. Not only did the media
“whole thing”; and, as a result, Pamela Smart did not frequently leave out crucial information; when it was
go into her trial with the “presumption of innocence.” included, it was often reported inaccurately in different
Instead of the prosecution having to uphold its legal ways by different news sources. Basic elements such
burden of proving to the jury that Smart was guilty, the as ages of victims, the timeline, and how long the jury
media presented her to be guilty to anyone who would spent deliberating were misreported. As the CJCJ
watch before the trial even started, including potential noted in its analysis, such factual slippage fosters the
jurors. This is further substantiated by the fact that an kind of biased-thinking that can easily compromise
unprecedented 300 potential jurors had to be brought impartiality. “When news articles have errors like this,”
in due to repeated disqualification based on response to the group’s report noted, “the reader might be unduly
the media coverage. influenced one way or another concerning the guilt of
the defendant based on the inaccurate information that
The Journalistic Code is being relayed.”8 The line between ‘the defendant’
and ‘a defendant’ is thin and of consequence. The more
There is no one set of “rules” for journalists. There we accustom ourselves to errors in reporting, the more
are, however, codes of ethics adopted by individual likely we are to habituate ourselves to the biases these
organizations. While most are similar in nature, I errors create.
specifically will be relying on the Code of Ethics for
the Society of Professional Journalists (SPJ), which “Act Independently”
is the most wide-spanning professional journalism
organization in the United States and presents itself It is important to recognize the motives of—and, in
as dedicated to “encouraging the free practice of this, to remain independent from and un-biased by
journalism and stimulating high standards of ethical or toward—sources; to do otherwise risks sacrificing
behavior.”7 According to the SPJ, its Code of Ethics impartiality and integrity. When it comes to crime
is a statement of abiding principles that address (and coverage, a common way in which independence
endure) changing journalistic practices and that guide is compromised is when disproportionate power
all who engage in journalism to take responsibility for and attention are given to prosecutors over defense
the information they provide, regardless of medium. attorneys. Generally speaking, prosecutors are often
The four main principles of the Code of Ethics are: made out to seem like officials representing the public
seek the truth and report it; minimize harm; act good, and when they speak to the media, what they
independently; and be accountable and transparent. I say is often presented (first by themselves and then

118 Kinder Institute

The Journalist’s Creed subsequently in the actual coverage) as “the facts of the
case,” regardless of whether the representation of those
I believe in the profession of journalism. facts is one-sided and/or un-thorough. The defense,
on the other hand, rarely gets such an opportunity to
I believe that the public journal is a public trust; present its side to the public. As two defense attorneys
that all connected with it are, to the full measure noted in an interview for Media Coverage of Crime
of their responsibility, trustees for the public; and Criminal Justice,9 “in every courtroom across the
that acceptance of a lesser service than the public United States, prosecutors are urging jurors to believe
service is betrayal of this trust. that ‘This case is simple,’ while lawyers for the accused
inevitably respond that ‘No case is ever simple and no
I believe that clear thinking and clear life is ever simple.’ But only the former fits above the
statement, accuracy and fairness are fundamental fold in today’s newspaper.” The corruption of standard
to good journalism. described here occurs on a level of both medium and
message. Putting a story above the fold gives it a certain
I believe that a journalist should write only what he weight, metaphorically speaking to its importance and
holds in his heart to be true. implying its correctness. Additionally, by providing
the prosecution’s perspective without the defense’s
I believe that suppression of the news, for any argument as a counterpoint, media outlets oversimply
consideration other than the welfare of society, the jury’s role in the judicial process to the point that
is indefensible. it is un-recognizable. Determining guilt or innocence
no longer requires a rigorous parsing of complicated
I believe that no one should write as a journalist evidence; instead, it merely requires determining
what he would not say as a gentleman; that bribery whether or not the single narrative one has access to
by one's own pocketbook is as much to be avoided as seems plausible enough.
bribery by the pocketbook of another; that individual
responsibility may not be escaped by pleading Problems concerning whom the media gives a voice
another's instructions or another's dividends. to, and in what capacity, arise in trial and pre-trial
publicity alike, the latter of which, in high-profile
I believe that advertising, news and editorial columns
should alike serve the best interests of readers; that Alan Light, “Photo taken February 1986 at the Kahala Hilton
a single standard of helpful truth and cleanness Hotel in Honolulu Hawaii” (1986)
should prevail for all; that the supreme test of good
journalism is the measure of its public service.

I believe that the journalism which succeeds best
-- and best deserves success -- fears God and
honors Man; is stoutly independent, unmoved by
pride of opinion or greed of power, constructive,
tolerant but never careless, self-controlled, patient,
always respectful of its readers but always unafraid,
is quickly indignant at injustice; is unswayed by
the appeal of privilege or the clamor of the mob;
seeks to give every man a chance and, as far as
law and honest wage and recognition of human
brotherhood can make it so, an equal chance; is
profoundly patriotic while sincerely promoting
international good will and cementing world-
comradeship; is a journalism of humanity, of and
for today's world.

Journal on Constitutional Democracy 119

cases, can be months or even years longer than the push the boundaries of they are qualified to do. A news
trial itself. In 2004, a study of network news found that source, simply put, is not the factfinder when it comes
high-profile crimes and the lead-up to high-profile to a trial; its role is to report on the proceedings, not to
criminal trials were reported on differently than other build its own case or provide expert commentary on a
stories. According to the report, “The vast majority decision. Research shows, however, that this distinction
(84%) of the coverage of [these] stories were carried does not always hold and that the line between journalist
on the morning network news, and tended to offer and trial lawyer can easily become blurred. A study
only one viewpoint and contain anonymous (although conducted in the 1980s, for example, examined the
transparent) sources.”10 Regardless of which side the difference between the effect of news coverage and the
viewpoint represents, there is great danger in a single effect of actual court documents on people’s attitudes
story, especially when trials are inherently two-sided. about the sentencing of convicted criminals.12 Two
Whether it is the defense or the prosecution—and let findings in particular stood out. For one, researchers
us not be mistaken here; it is typically the prosecution— discovered that newspaper stories significantly affected
when one side controls the narrative, a descent into people’s judgments of leniency, with tabloid stories in
partiality is essentially un-preventable. particular creating strong perceptions among readers
of lenient treatment given by judges to defendants.
“Minimize Harm” This conclusion was confirmed when the researchers
conducted a second experiment in which subjects were
Television news has yet to find a “happy medium” randomly assigned to read either a newspaper account
when it comes to trial coverage. Segments of nightly of a criminal sentence or a summary of trial court
news shows are limited to two minutes or less, but documents that the judge had considered in imposing
higher-profile cases are subject to the relentless 24- the sentence. Subjects who read the court documents
hour news cycle. In both situations, sensationalism were significantly more likely than subjects who read
sells, and in both situations, impartiality is again at the news story to see the sentence as appropriate. These
risk. This sensationalism often takes the form of a differing results demonstrate the impact a news source
reporter editorializing—we have all heard the lead-ins can have when its coverage strays from what actually
to a segment about a “shocking” crime or a “horrific occurs in a court of law. Surely harm to defendants
and brutal” murder. According to Richard Gabriel, an is not being minimized if news coverage portrays
adjunct law professor at Pepperdine whose consulting criminal sentences more leniently than the court
firm, Decision Analysis, specializes in cases of high-bias, documents themselves. Specifically, this representation
such vocabulary sways viewers as to how they should of leniency is bound to bias individuals not only toward
feel about the event in question. By using language the need for stricter punishment but also toward a
like “shocking” and “disturbing,” Gabriel writes, “a presumption of the judicial process’ “routine” failure
commentator on the news draws conclusions about the to rightly and vigorously identify guilt; and in this,
facts and their possible meaning, and speculates about coverage pushes individuals further and further away
what will happen in the future.”11 Of course the effect from an understanding of the judicial process as built
of such specific and subjective commentary technically around the need to thoroughly prove guilt. The media
has no place in trial law, as the court explicitly instructs must report with an awareness of these kinds of longer-
jurors to set aside the potential biases produced by term implications, even if that means that a story is not
editorializing. But the reality remains that a negative as glamorous or ratings-boosting as it could be. The
portrayal of a defendant can dangerously lead Society of Professional Journalists’ Code of Ethics says
viewers—especially jurors in future criminal trials—to it best: “Balance a suspect’s right to a fair trial with the
begin drawing their own negative conclusions not only public’s right to know.”13
about the defendant in whatever case is at hand but,
worse, about defendants in general. “Be Transparent and Accountable”

A related concern is that the ratings- or clicks-pressure Sometimes, journalists make mistakes. While these
of the 24-hour news cycle encourages journalists to mistakes do not necessarily define a journalist, the

120 Kinder Institute

decisions made leading up to and following them do. serving as a mouthpiece for the prosecution. Instead
For journalists to be transparent and accountable, they of seeking the truth and reporting that truth, Spencer
need to be able to take responsibility for their work spread gossip. The hour-long TV special he narrated,
and explain the decisions they made along the way Anatomy of a Murderer, laid out theories of how
to the public. When questions about procedure arise, Smart could have been involved in the crime, many
for example, one must be able to answer them quickly of which were beyond substantiation even by the
and provide a defensible basis for the path pursued; laxest of evidentiary thresholds. He pandered to the
similarly, when a mistake does occur, it should be public’s lurid curiosity without considering the long-
term consequences of this type of coverage, meaning
John Jakob Wick, “Burning of Three Witches in Baden, that there were no real attempts to “minimize harm.”
Switzerland” (1585) As a result, Spencer has never been able to answer
questions regarding his clarity, accuracy, or fairness
acknowledged and corrected promptly. These steps with anything even remotely resembling transparency
are crucial if high-quality, ethical journalism is to be and accountability (although he has certainly tried and
the standard. In reality, though, transparency and resoundingly failed to do so since the case). Smart, on
accountability are not criteria on their own, but rather the other hand, has continued to face the consequences
the byproducts of meeting the criteria previously of problematic journalism. Her appeals have been
discussed. If the media seek the truth and report it, act denied and exhausted. Her only option for relief is
independently, and minimize harm, transparency and intervention by the governor. And Smart believes the
accountability should be implied. public’s hatred for her—the hatred drummed up by the
reporting of figures like Spencer—is precisely what is
“The freedom of the press works in such a standing in the way of any mercy.14
way that there is not much freedom from
This article does not intend to suggest that all news
it.” ~ Grace Kelly sources fail to uphold journalistic standards, as that
is simply not true. We commonly see responsible
In the case of Pamela Smart, we saw what happens reporting that is transparent and accountable. More
when media members fail to adhere not just to the importantly, we see what this type of reporting can do
SPJ Code of Ethics but, really, to any code of ethics not only for the news industry and its audience but also
at all. Looking specifically at Bill Spencer of WMUR, for the individuals, most notably the defendants, whom
he did not act independently but boosted his career by the media cover.
appearing on multiple national television programs,
Take, for example, season one of the Serial podcast.
In this instance, the listener was able to hear—and
actually learn—about legal and journalistic procedure

Walter Frank Winn, “Photo of the trial of Leo Frank” (1913)

Journal on Constitutional Democracy 121

simultaneously (an ideal, though rarely realized, researching and investigating leads, and it sparked a
synergy). For those who are not familiar with Serial, national conversation about and interest in the criminal
journalist Sarah Koenig aired 12, hour-long episodes justice system.
about the murder of a high school student and her
convicted killer, a fellow high school student and ex- Ethical coverage does not just affect the defendant in
boyfriend, Adnan Syed. When Koenig first started a particular case. Koenig’s true-crime coverage, among
speaking with Syed, he had just been denied post- others’, has created a following of predominantly young
conviction relief, though it is important to note that fans. “As such,” the Washington Post’s Robert Gebellhoff
her journalistic investigation was not an effort to suggests, “we might slowly be building up a generation
exonerate him. Rather, her motivation was to seek the whose primary introduction to criminal justice is
truth for herself and report it. While not perfect, binging on hours’ worth of podcasts and Netflix
Koenig’s reporting upheld the Code of Ethics. From episodes that explain legal standards and parse through
the start, she made her intentions clear, and in each evidence ad nauseam. We might have the most legally
episode, she both demonstrated and invited from the literate population in history.”15 Journalists cannot
listener a hearty dose of skepticism. Although the case un-ring the bell in cases that have been subjected to
was covered by local media at the time, Koenig acted damaging coverage. However, the court system and the
independently, meticulously reexamining claims by public have much to gain by the media upholding the
both the prosecution and the defense over the course ethics of journalism in their reporting, and by holding
of the 12-part series. And, sure enough, she finds errors them accountable when they do not.
and inconsistencies that would have stayed hidden had
she blindly accepted the previous work of others.Koenig 1U.S. Constitution. Art./Amend. V.
holds back opinions and judgments, as well as names of
those who wish to remain nameless, a clear attempt on 2U.S. Constitution. Art./Amend. VI
her part to minimize harm. Throughout the series,
Koenig walks us through the entirety of her process. 3Matthew Belinkie. “The Law and Order Database:
While other journalists experience the same situations All 20 Seasons.” Overthinking It. Accessed 13
and make similar decisions, Koenig’s reporting let the November 2012. https://www.overthinkingit.
listener understand why a piece of information was com/2012/11/13/the-law-and-order-database-all-20-
excluded from her “official” reporting and analysis, and seasons/ Accessed 15 October 2016.
when she did do something more controversial for her
field, like airing parts of an interview with an unnamed 4Amy Mitchell, Jeffrey Gottfried, Michael Barthel
source, she provided reasoning to the listeners who and Elisa Shearer. “The Modern News Consumer:
might have understandably been made reluctant by News attitudes and practices in the digital era.” Pew
this decision to endorse her methodology. And it is Research Center: Journalism & Media. 7 July 2016.
worth repeating that Koenig invited such reluctance. http://www.journalism.org/2016/07/07/pathways-to-
Each step of the way, Koenig asked the listener to be news/ Accessed 1 October 2016.
skeptical and demand support for claims being made
and, in doing so, she taught important lessons about 5Noreen O’Donnell. “Pamela Smart, Convicted of
journalistic ethics, legal processes, and the means of Plotting Husband’s Murder, Hopes Documentary
resisting bias. She was, in other words, transparent Will Change Minds.” 4 New York. 1 January 2015.
and accountable for the information she spread. NBCUniversal Media. Accessed 1 November 2016.
http://www.nbcnewyork.com/news/local/Pamela-
Within a year of the coverage, Syed had a new trial. Smart-Interview-HBO-Documentary-Captivated-
Ultimately, he was released. Serial was by no means the Murder-Plot-Case-285382921.html
only reason for this, but it did get 80 million downloads
and 8 students from the University of Virginia School 6Jeremiah Zagar. “Captivated: The Trials of Pamela
of Law Innocence Project Clinic involved with Smart.” 17 January 2014. HBO. Accessed 5 November
2016.

7“SPJ Code of Ethics.” Society of Professional

122 Kinder Institute

Journalists. 6 September 2014. http://www.spj.org/
ethicscode.asp Accessed 5 November 2016.

8Jennifer L. Klein and Danielle Tolson Cooper. “Trial
by Error: A Content Analysis of the Media Coverage
Surrounding the Jerry Sandusky Trial.” Justice
Policy Journal. 13:1. (2016): 1-29. http://www.cjcj.
org/uploads/cjcj/documents/jpj_trial_by_error.pdf
Accessed 12 October 2016.

9Robinson, Matthew B. Media Coverage of Crime and
Criminal Justice. North Carolina: Carolina Academic
Press, 2014. p. 208

10Robinson, Matthew B. Media Coverage of Crime
and Criminal Justice. North Carolina: Carolina
Academic Press, 2014. p. 215

11Richard Gabriel. “This Case Is Brought to You by…:
How High-Profile Media Trials Affect Juries.” Loyola
of Los Angeles Law Review. vol. 33. no. 2. 2000.
pp. 725-736. http://digitalcommons.lmu.edu/cgi/
viewcontent.cgi?article=2209&context=llr Accessed 2
November 2016.

12Valerie P. Hans and Juliet Dee. “Media Coverage
of Law: Its Impact on Juries and the Public.” 1
December 1991. Cornell Law Faculty Publications.
pp. 136-149. http://scholarship.law.cornell.edu/
facpub/324/ Accessed 1 October 2016.

13“SPJ Code of Ethics.” Society of Professional
Journalists. 6 September 2014. http://www.spj.org/
ethicscode.asp Accessed 5 November 2016.

14Jean Mackin. “25 years after husband’s killing,
Pamela Smart seeks mercy.” WMUR9. 18 March
2015. http://www.wmur.com/article/25-years-
after-husband-s-killing-pamela-smart-seeks-
mercy/5198550 Accessed 1 November 2016.

15Robert Gebelhoff. “How the ‘Serial’ podcast
is challenging the criminal-justice system.” The
Washington Post. 6 July 2016. https://www.
washingtonpost.com/news/in-theory/wp/2016/07/06/
how-the-serial-podcast-is-challenging-the-criminal-
justice-system/?utm_term=.aeb6a2eb6430 Accessed
10 November 2016.

Journal on Constitutional Democracy 123

Universal Human
Rights Norms: Their
Potential Natural
and Unnatural
Consequences

by Tricia Swartz

"U.S. Supreme Court Building, Washington, D.C." (1943)

124 Kinder Institute

I. “It is not our affluence, or our plumbing,
or our clogged freeways that grip the
In March 2005, the United States Supreme Court imagination of others. Rather, it is the
delivered its much anticipated opinion in the case Roper values upon which our system is built.
v. Simmons. Prior to the case, multiple states allowed for
juvenile offenders who were at least 16 years of age at These values imply our adherence not only
the time of their offense to be executed for murder. The to liberty and individual freedom, but
majority opinion in Roper ruled that, on the basis of the
Eighth Amendment’s prohibition of “cruel and unusual also to international peace, law and order,
punishment,” it is unconstitutional to impose the death and constructive social purpose. When we
penalty on juvenile offenders who were less than 18 depart from these values, we do so at our
years old at the time of their offense, which raised the
minimum age requirement for execution in most states peril.” ~ Sen. J. William Fulbright
from 16 to 18.1 What sets Roper apart from other Court
cases is that the majority, citing international human "Title page of John Locke, Two Treatises of Government" (1690)
rights treaties, referred in its opinion to a global trend
toward prohibiting the death penalty for juvenile II.
offenders. Of particular interest here is that the Court
referenced the United Nations Convention on the Rights of Although Locke’s social contract theory mainly pertains
the Child, which, as late Justice Antonin Scalia noted in to civil governments established by individuals, his ideas
his dissenting opinion, the United States had (and still about the state of nature, consent, and sovereignty can
has) yet to ratify.2 be extended to international bodies created by multiple
states, such as the United Nations. Before we can begin
Scalia’s dissenting opinion, and particularly his to apply Locke to the United Nations, though, we
concerns about the use of international norms as must first develop a basic understanding of his social
interpretative aids in deciding domestic legal matters, contract theory.
is largely based on fundamental principles regarding
national sovereignty and consent of the governed. In Locke’s social contract theory is described in The
contrast, the majority opinion in Roper demonstrates Second Treatise of Civil Government (1689), which begins
a deep commitment to using international human by defining the natural duties and rights of individuals
rights norms in interpretations of the Constitution. and, from there, traces the origins of government as it
The differing opinions of the Court on the purposes exists to preserve individuals’ rights by creating legal
and use of international human rights law speak to a obligations for men to obey. The first stage of Locke’s
tension that exists within the United Nations itself. explication of the social contract theory occurs in
The states, or members, of the United Nations are the state of nature. In this stage, all men are assumed
often conflicted, because, in addition to wanting the
right to govern themselves, they also want to encourage
neighboring states to uphold human rights. In order to
develop a deeper understanding of this issue, my essay
will use John Locke’s social contract theory as a lens
for evaluating the United Nations and its processes for
balancing the tension between preserving the sanctity
of consent and sovereignty for its members while at the
same time promoting their adoption of international
human rights norms.

Journal on Constitutional Democracy 125

to be equal, and they may freely act as they see fit. of written laws and unbiased judges, is the “proper
However, Locke quickly specifies that, “though this remedy” for preventing a state of war and preserving
[state of nature] is a state of liberty, it isn’t a state of the natural rights of men.6
licence.”3 This liberty-license distinction is imperative
to understanding Locke’s social contract theory, Locke’s version of a civil government is built on
because it presents the contingency that, while men certain features which directly relate to Roper and the
have the ability to act freely, there are still moral limits United Nations, most notably consent and sovereignty.
as to how they ought to conduct themselves. These Specifically, Locke arrives at a conception of civil
limits, he goes on to explain, are found within the law government in which the purpose of consent is to
of nature, which was set in place by God; is meant to uphold the sovereignty, or natural liberty, of individuals.
govern all individuals in the state of nature; and is not According to Locke, liberty in the state of nature is “to
written, like civil legislation, but is rather made known be free from any superior power on earth, and not to
to each person by virtue of his or her God-given ability be under the will or legislative authority of men but
to reason. Locke, likely citing Richard Hooker or St. to be ruled only by the law of nature.”7 Since all men
Thomas Aquinas, in fact states that reason is the law are naturally born free, Locke reasons that if they do
of nature, by which he means that the law of nature recognize the need for government, it is still the case
is man using reason to understand God’s eternal law, that no one can rightfully force individuals to follow the
which governs the universe.4 will and authority of another except when they consent
to a political power. Therefore, consent, whether it be
Once man makes such use of his reason, Locke obtained by a direct vote or through representatives,
continues, he learns that all men are equal and that guarantees that men will only be subject to an authority
since all men are the work of God, they may not to which they agreed, which they established, and,
infringe on one another’s natural rights, which include finally, which is designed to acknowledge and uphold
life, liberty, and property.5 Ideally, as these natural their sovereignty.
laws are already set in place for mankind, the state of
nature should persist as a state of peace and prosperity. Locke additionally posits that, on the basis of the
Unfortunately, Locke notes, the state of nature can individual’s sovereignty and consent, the government
easily devolve into a state of war, wherein the rights to itself also ought to be sovereign, which he defines as
life, liberty, and/or property are imperiled rather than “the international independence of a state, combined
universally respected. with the right and power to regulate its internal affairs
without foreign dictation.”8 Or, approached from
For Locke, one of the primary problems that arises the perspective of the individual, as consent prevents
as a result of this devolution stems from how conflict men from being under the arbitrary will of another,
is resolved once the state of nature becomes the state it likewise prevents them from being “under restraint
of war. When one deviates from the law of nature and from any law except what is enacted by the legislature
harms the life, liberty, or property of another, then the in accordance with its mandate.”9 Sovereignty thus
person being harmed has the right to wage war on the ensures that, first, a state’s laws will not be determined
person who is committing the offense, because it is by a foreign or extra-state influence and, secondly,
everyone’s duty under the natural law to respect natural that individuals in the state will be governed only by a
rights, including their own lives. Moreover, because legislature and laws created with their consent.
there is no authority on earth to which mankind can
refer to resolve rights disputes in the state of war, every In summary, Locke believes it is necessary for men to
man can be the judge of both himself and others when establish a civil government among themselves and
the law of nature is violated. Given that self-interest can that the main functions of a civil government should be
motivate men to favor themselves and punish others as follows: to prevent a state of war; to define the duties
too severely, the state of war can thus easily become of individuals by implementing laws which they are
increasingly more violent and arbitrary. Therefore, obligated to follow; and to preserve the natural rights
Locke believes that a civil government, which consists of men, which are life, liberty, and property. In order

126 Kinder Institute

Morris Huberland, “United Nations Building construction" relation to one another. In their analyses of the causes
(ca. 1952) and consequences of the state of war, the similarities
between Locke and Price become apparent. Specifically,
for the government to fulfill this vision, it must itself be just as Locke asserts that individuals possess self-interest,
sovereign and built on consent of the governed. and that this self-interest contributes to the persistence
of a state of war between them, Price contends that every
Particularly as it relates to this article, what is interesting state has its own interests and that once a state threatens
about Locke’s social contract theory is how other the interests of another, conflict will inevitably result
authors have gone beyond thinking about it exclusively because the involved parties will resort to self-defense
in terms of a relationship between individuals and in order to preserve themselves. He uses the example of
civil government, and have instead applied it to Europe to make this case:
interactions between states in the international sphere.
Around the time of the United States’ Declaration of While it continues divided, as it is at present, into
Independence, for example, Richard Price, a philosopher a great number of independent kingdoms whose
and Presbyterian minister, wrote about the ideas in interests are continually clashing, it is impossible
Locke’s Second Treatise using a global perspective. A but that disputes will often arise which must end
brief overview of the similarities between Price's and in war and carnage. It would be no remedy to this
Locke’s writings will enable us to more fully explore evil to make one of these states supreme over the
the relationship between the social contract theory and rest; and to give it an absolute plentitude of power
the United Nations’ origins, structure, and processes. to superintend and controul them. This would be
to subject all the states to the arbitrary discretion
III. of one, and to establish an ignominious slavery not
possible to be long endured.10
In his Observations on the Nature of Civil Liberty (1776),
Price considers the implications of applying Locke’s By rejecting the idea that making “one of these states
social contract theory to multiple civil governments in supreme over the rest” would prove a “remedy to this
evil,” Price acknowledges that, in order to prevent
states from exerting force and arbitrary will upon one
another, all states must first be viewed as equal entities.
In an effort to uphold equality, he then proposes there
ought to be an unbiased authority, which recognizes
that all states are independent of one another and, in
the case that disputes arise among them, can fairly
decide how to resolve conflict.11 Just as Locke believed
that a civil government was necessary for preventing
a state of war between individuals and for ensuring
that their natural rights were protected, Price extends
this argument to states by hypothesizing the creation
of an outside, interstate system, consented to by all its
members, that can regulate conflict in order to preserve
the sovereignty of each individual state.

While Price’s ideas are largely based on the same
principles of consent and sovereignty that we see in
Locke, the two authors apply civil liberty to different
entities. Whereas Locke’s definition of civil liberty
only concerns individuals, Price defines civil liberty as
it relates to both individuals and states. According to

Journal on Constitutional Democracy 127

Price, if a governing authority exists to ensure that all important to note that, for Price, any directives that
states are independent of one another, then every state are made by the international governing authority
will enjoy a form of civil liberty which for him is “the should be accepted by and implemented with the
power of a civil society or state to govern itself by its own individual consent of each state, a condition that also
discretion; or by laws of its own making, without being implies each state’s willingness to follow through with
subject to any foreign discretion, or to the impositions of the obligations mandated by the directives it accepts.
any extraneous will or power.”12 Although this meaning
of civil liberty is specific to states, it still directly relates Lybil BER, “Vue de façade de devant du Palais de la Pays à Haye”
to the civil liberties of individuals. (2009)

According to Locke, the civil liberty of man is the right Given the connections that can be and have been
to freely act within the bounds set by the government, drawn between Locke’s social contract theory and
and to be under the authority of only the laws international agreements between states, it is worth
established by his consent and his state’s legislature.13 examining how his theory has been integrated into
Since all men are naturally free in the state of nature, the structure of the United Nations. Returning to
then only by their consent can a government be where this article began, such an analysis might also
formed. A civil government that is based on consent help us to identify the reasons why the justices in Roper
is also a sovereign power, which means that it is arrived at differing opinions. In addition to using the
independent and that its internal affairs are determined social contract to examine these issues and questions,
by the people it governs, rather than foreign influences. we will refer to two documents created by the United
By comparison, Price’s notion of civil liberty implies Nations: the Charter of the United Nations and the
that, in order for states to remain sovereign, then the Universal Declaration of Human Rights, both of which
states themselves, in addition to individuals, must be contain multiple, brief sections, which discuss some
guaranteed civil liberty. If a state lacks civil liberty, or of the same concepts that are central to Locke’s social
the right to govern itself, at the international level, this contract theory.
could potentially undermine individuals’ consent and
sovereignty at the domestic level. It is for these reasons IV.
that Price expresses the need for a system among
multiple civil governments that recognizes the equality The Charter of the United Nations was drafted and
of all states and, in this, preserves their equal right to adopted in 1945. Once a state signs and ratifies the
govern themselves “without the impositions of any Charter by using its own domestic procedure, it
extraneous will or power.” becomes a United Nations (U.N.) member and assumes
the responsibility of following the principles outlined
Although he was primarily concerned with the in the Charter.14 One of the main purposes for the
relationship between the British Empire and creation of the United Nations was to prevent a state
the thirteen colonies, Price still enhances our of war, an objective that was crafted in direct response
understanding of the relationships between states
in general. In addition to analyzing how states tend
to interact with one another, Price also explains how
these interactions can sometimes threaten the natural
rights of citizens. Due to self-interest, both men and
states will engage in war with one another and fail
to resolve their transgressions peacefully. In order to
prevent the state of war and fairly punish violations
of the natural law, states, as well as men, can form a
governing authority among themselves. As the purpose
of the social contract among states is to uphold the
civil liberties of both states and their citizens, it is

128 Kinder Institute

to the events that preceded the U.N.’s establishment, In regard to the first method named above, equality
and one that it maintains today. is a recurring theme throughout the Charter, which
specifically recognizes the “equal rights and self-
Shortly before talks about creating the United Nations determinations of people” and “the sovereign equality
began, the world had experienced World War II, of all its Members.”16 By acknowledging that every
which, to use Locke and Price’s shared vocabulary, member is a sovereign equal, the Charter sets forth the
represented a moment in history when nations were notions, reminiscent of Price’s writings about the civil
exerting arbitrary will over one another, mainly liberties of states, that all members have the authority
through invasions and direct attacks. The League of to govern themselves without foreign influence, and
Nations, the predecessor to the United Nations that that foreign influence includes aggressive or arbitrary
was established after World War I, failed to prevent the power wielded by one member state over or against
outbreak of a second global conflict, and as a result, another. The anticipated benefit of this approach—
tens of millions of lives were lost. The need to ensure reducing the chances of another global war—is an
against another occurrence of war on such a massive outcome that University of Westminster’s Paresh
scale by introducing a new and stronger international Kathrani traces back to Locke’s theories:
community was nowhere more clearly spelled out than
in the opening statements of the Charter, where it is The UN system also has a broad social contract
written that one of the goals of the United Nations is dimension in that states agreed to co-operate, and
“to save succeeding generations from the scourge of afford each other the same treatment they would
war, which twice in our lifetime has brought untold expect for themselves, in order to prevent the
sorrow to mankind.”15 Just as Locke conceived of the state of war that had decimated most of the world
social contract as a way to curb war among individuals, during the beginning of the previous century.17
the same purpose is laid out for states not only in
Price’s writing but also here, in the founding language As for the second of Locke’s methods, in the case that a
of the United Nations. dispute arises between members, the Charter stipulates
that its terms can be submitted to the United Nations
Locke’s social contract theory relies on two methods Security Council, which is responsible for investigating
for preventing an occurrence of war: first, recognizing threats to international peace and security. Once the
the equality and rights of men; and second, mandating Council fully investigates a dispute, it can then make
that only the governing authority created in accordance recommendations to all parties involved so that the
with the social contract, and not men themselves, can conflict might be settled peacefully.18 The role of the
enforce punishments for violations of the law. The Security Council in particular relates back to Locke’s
United Nations reflects both characteristics. social contract theory, especially his belief that since
men possess self-interest, they should neither judge
"Defendants in the dock at the Nuremberg Trials,” nor punish transgressions against themselves because
(ca. 1945-1946) doing so might escalate war. As nations possess a similar
self-interest that poses a similar danger, they have
authorized the United Nations Security Council to
enforce international law, rather than trying to use their
own force to coerce others into obedience. In Article
33 of the Charter, the United Nations specifies that
the Security Council will resolve international disputes
through a variety of means, including, but not limited
to, negotiation, mediation, arbitration, and judicial
settlements.19 It is important to note, however, that in
order for the Security Council to directly influence
the actions of nations so that universal peace might be
maintained, its decisions are binding: “The Members of

Journal on Constitutional Democracy 129

the United Nations,” the Charter clearly states, “agree of person.”22 The Declaration thus demonstrates that
to accept and carry out the decisions of the Security the U.N. was created to protect not only the equal
Council in accordance with the present Charter.”20 sovereignty of states but also the shared and universal
freedoms of individuals around the globe.
A quick read of the Charter demonstrates that the
social contract theory can be used to administer To achieve both of these goals, the United Nations
the relationships between states and decrease the creates treaties, though in doing so, it is careful to
likelihood of war. However, in addition to encouraging rely heavily on language that maintains the sanctity of
more peaceful interactions, the United Nations was consent and sovereignty. Article 21 of the Declaration,
also created to “reaffirm faith in fundamental human for example, states that, “The will of the people shall be
rights.”21 The main reason for prioritizing human rights the basis of the authority of government,” implying that
was that, in the midst of World War II, the German the powers of each member’s government should be
state exerted violent, arbitrary power over some of its based on the consent of its constituents.23 Moreover, by
own citizens, depriving them and many others of their recognizing every member as a sovereign state, the U.N.
natural rights to life, liberty, and property in the course acknowledges that each one has its own constitutional
of committing widespread and unthinkable human procedure for governing internal affairs. Within the
rights atrocities. Following the conclusion of World context of the social contract argument made earlier,
War II, nations around the world were thus adamant the U.N. thus operates with full understanding of the
about devising a more reliable means of preventing degree to which consent and sovereignty are essential
both state aggression against states as well as human to protecting men and states from arbitrary and foreign
rights violations within individual states, such as the influences. However, as important as these principles
mass genocide of the Holocaust. are, they create certain complications when it comes
to the United Nations’ enforcement of international
Marcello Casal, “The 62nd General Assembly of the United human rights law.
Nations begins” (2007)
Perhaps the most challenging consequence of
Whereas the Charter explains the purposes and recognizing consent and sovereignty at the international
procedures of the United Nations (U.N.), the Universal level is that the resolutions produced by the General
Declaration of Human Rights identifies which rights Assembly, the U.N.’s primary organ for debating and
belong to all humans, regardless of their country voting on international standards, are not immediately
of origin or residence. In Articles 2 and 3 of the binding on its members. A country may sign a treaty,
Declaration, one can again see how the U.N. has relied but the provisions of the treaty may not be enforceable
on some of the basic tenets of social contract theory in until they have been ratified and implemented by that
conceiving of its responsibilities and objectives. Just as country according to its own domestic procedures.
Locke believed that every person had the right to life, The difficulties of enforcement that this arrangement
liberty, and property, the United Nations recognizes presents can be seen in the instance of the treaty cited
that, “Everyone has the right to life, liberty, and security in Roper, the United Nations Convention on the Rights of the
Child. In Roper, Scalia justified his dissenting opinion by
referring to constitutional processes based on consent
and sovereignty, specifically noting that, in the United
States, a treaty is not legally binding until it has received
approval from the Senate and is then referred to the
President for ratification.24 Given that the Convention
on the Rights of the Child was an international treaty that
had not been approved and ratified in accordance with
these channels, Scalia questioned the Court’s reliance
on international law for a case that was concerned with
domestic constitutional principles.

130 Kinder Institute

Grant us a common faith that man shall Chris Erbach, “United Nations General Assembly Chamber”
know bread and peace—that he shall
(2007)
know justice and righteousness, freedom
and security, an equal opportunity and influence the U.N. can wield over the steps that are
an equal chance to do his best not only in necessary to carry out this type of law involves the
our own lands, but throughout the world. organization merely encouraging each member to
And in that faith let us march toward ratify and then implement the treaties that pertain to
the clean world our hands can make. human rights, a process which consent and sovereignty
can either prolong or halt entirely. Conversely, it is
~ Stephen Vincent Benet at least plausible to imagine suspending consent and
sovereignty on the basis of promoting human rights law,
Another challenge of enforcement that the U.N. but doing so would then result in negative, unintended
confronts emerges from the fact that, historically, consequences. A lack of consent and sovereignty at
ratified treaties have been viewed as “not self-executing,” the international level could very possibly subject a
meaning that a given treaty becomes enforceable only nation’s citizens to a foreign influence or an arbitrary
after its provisions have been implemented into a nation’s power, which in turn could undermine their liberty
domestic laws and procedures.25 Some nations have and sovereignty as individuals. Therefore, the consent
ratified the Convention on the Rights of the Child, and these and sovereignty of states are necessary safeguards
nations have created commissions and offices to enforce regardless of scenario, because while they may be at
the obligations outlined in the treaty.26 However, other odds with the goals of enforcing human rights treaties,
nations still violate the norms that developed out of the they serve as critical checks to the powers of both the
Convention, and may continue to do so until they have United Nations and other countries.
not only signed and ratified the treaty, but also aligned
their domestic laws with these norms.27 By referring back to John Locke and Richard Price, one
can appreciate political philosophy and its significance
If we consider the effects that consent and sovereignty to our understanding of governmental institutions
may have on all United Nations agreements, and not today. An overview of Locke’s social contract theory
just the Convention on the Rights of the Child, we can has shown how sovereignty and international human
begin to understand the few enforcement mechanisms rights law are often points of tension within the
that the U.N. may employ in its interactions with United Nations. This tension became more salient in
member states and the difficulties it faces as a result. Roper v. Simmons. Whereas the justices of the majority
As the United Nations, on the basis of consent and opinion wanted to consider prevailing norms based on
sovereignty, cannot intervene in a nation’s domestic international human rights treaties, the justices of the
legal procedures, it has a very limited role in ensuring dissenting opinion were primarily concerned with how
that international human rights law is actually carried the majority’s reference to these norms could violate
out, because “the state is not bound by a [U.N.] directive the principles of consent and national sovereignty.
in the same way that a human would be in the domestic
sphere…it is recognized that a state is only bound to
the extent that it decides; in other words, generally, by
its own good faith.”28

In terms of human rights, both consent and sovereignty
can thus hinder the United Nations’ ability to enforce
international human rights law. In fact, the realistic

Journal on Constitutional Democracy 131

132 Kinder Institute

Journal on Constitutional Democracy 133

1“Roper v. Simmons.” Oyez. Date unknown. Chicago- 20Ibid. p. 7.
Kent College of Law at Illinois Tech. 18 February
2017. https://www.oyez.org/cases/2004/03-633. 21Ibid. p. 2.

2Roper v. Simmons. 543 U.S. 551. US Sup. Ct. 2005. 22Universal Declaration of Human Rights. United Nations
Key Documents. Date unknown. United Nations.
3John Locke. Second Treatise of Government. Early 1 February 2017: p. 2. http://www.ohchr.org/EN/
Modern Texts. March 2008. Johnathan Bennett. 3 UDHR/Documents/UDHR_Translations/eng.pdf.
December 2016: p. 4. http://www.earlymoderntexts.
com/assets/pdfs/locke1689a.pdf. 23Ibid. pp. 5-6.

4Ibid. 24“Treaties: The Senate’s Role in Treaties.” United
States Senate. Date unknown. United States
5Ibid. Government. 18 February 2017. https://www.senate.
gov/artandhistory/history/common/briefing/Treaties.
6Ibid. p. 6. htm.

7Ibid. p. 9. 25“Self Executing Treaty.” Wex Legal Dictionary.
Date unknown. Cornell University Law School Legal
8“Sovereignty.” Black’s Law Dictionary – Free Online Information Institute. 10 March 2017. https://www.
Dictionary. 2nd ed. 1910. 10 March 2017. http:// law.cornell.edu/lii/terms/documentation.
thelawdictionary.org/sovereignty/.
26Elizabeth Bartholet. “Ratification by the United
9Locke. Second Treatise of Government. p. 9. States of the Convention on the Rights of the Child:
Pros and Cons from a Child’s Rights Perspective.” The
10Richard Price. Observations on the Nature of Civil ANNALS of the American Academy of Political and
Liberty, the Principles of Government, and the Justice Social Science. 633 (2011): p. 3.
and Policy of the War with America. Online Library of
Liberty. 2016. Liberty Fund. 3 December 2016: pp. 11- 27Ibid. p. 4.
12. http://oll.libertyfund.org/titles/price-observations-
on-the-nature-of-civil-liberty. 28Kathrani, Paresh. “Social Contract Theory and the
International Normative Order.” p. 101.
11Ibid. p. 12.

12Ibid. pp. 9, 12.

13Locke. Second Treatise of Government. p. 9.

14Charter of the United Nations and Statute of the
International Court of Justice. United Nations Treaty
Collection. Date unknown. United Nations. 3
December 2016: p. 20. https://treaties.un.org/doc/
publication/ctc/uncharter.pdf.

15Ibid. p. 2.

16Ibid. pp. 3, 11.

17Kathrani, Paresh. “Social Contract Theory and the
International Normative Order: a New Global Ethic?”
Jurisprudence. 1.119 (2010): p. 100.

18Charter of the United Nations. United Nations. pp. 8-9.

19Ibid. p. 8.

134 Kinder Institute

Toward and Against Erasure: A
History of Politicizing Multiracial
Identity from H.R. 416 to
Loving v. Virginia

by Tessa Weinberg

"Photograph of Mildred Jeter and Richard Loving" (1967)

Journal on Constitutional Democracy 135

G.W. Bromley & Co., “Political caricature No. 2., Miscegenation According to the U.S. census, the racial categories
or the millennium of abolitionism” (1864) by which it asks individuals to identify themselves
“generally reflect a social definition of race recognized
in this country and not an attempt to define race
biologically, anthropologically, or genetically.”1 On the
2000 U.S. census, individuals could self-identify as more
than one race for the first time in history,2 an option
that remained when the census was taken again in
2010. However, understanding the significance of this
change demands acknowledgment of how multiracial
identities were, in fact, seen on the U.S. census more
than a century before. As I will examine in this article,
in tracing the intersection of the legal designation and
social construction of racial identity from the mid-
nineteenth century through the twenty-first century, we
see how the consistent practice of subjecting individuals
of multiracial identity to external definition has had
troubling consequences throughout history.

On the 1850-1880 censuses, the term “mulatto”
appeared alongside the categories of white and black.
On the 1910 census, the distinction between black and
mulatto was defined as follows: “‘black’ (B) includes
all persons who are evidently full blooded negroes,
while the term ‘mulatto’ (Mu) includes all other
persons having some proportion or perceptible trace
of negro blood.”3 Twenty years later, interpretation
and application of the “one-drop rule” expanded to
more than just a white-black dichotomy. As D’vera
Cohn writes in “Race and the Census: The ‘Negro’
Controversy:”

Persons who were mixed ‘White and Negro
blood’ were to be counted as ‘Negro’ (apparently
capitalized) no matter how small the share of
‘Negro blood.’ (This so-called ‘one-drop rule’ or
variations of it appeared in census instructions
beginning in 1870.) Persons who were mixed
white-Indian were to be counted as Indian ‘except
where the percentage of Indian blood was very
small or where he or she was regarded as White
in the community.’  Any person who was ‘white’
and ‘colored’ was to be counted according to the
‘colored’ race, and mixed colored races were to be
counted according to the race of the father.4

136 Kinder Institute

The flimsy means by which multiracial individuals When my immigrant, Korean mother and white,
were defined based on standards such as community Jewish father first announced they were engaged, they
regard shows in general how “whiteness” is a fluid term. were disowned by members of their family on both
More importantly, and as Cohn demonstrates in the sides. It’s unsettling that I have grown up knowing
cited passage, the term’s fluidity has deliberately been that people I am related to by blood were averse to my
manipulated either to absorb individuals that society existence before I was even born.
deems worthy of inclusion into a sphere of white social
and political privilege or to systematically exclude
individuals believed to lack title to the privileges
associated with whiteness.

In 1863, the Democratic party distributed a 72-
page pamphlet, “Miscegenation: The Theory of
the Blending of the Races, Applied to the American
White Man and Negro,” in an effort to discredit the
Republican party by claiming that it advocated for
the intermarriage of blacks and whites until the two
races were “indistinguishably mixed.” In the pamphlet’s
introduction, the author suggests with satirical
aspiration that for “a people, to become great, [they]
must become composite,” and to add effect, he goes
on to quote Antony from Shakespeare’s The Tragedy of
Julius Caesar on the pamphlet’s cover: “…the elements/
So mixed in him that Nature might stand up/And
say to all the world, ‘This was a man.’”5 The author’s
intent, here, is entirely insincere and subversive, as he
attempts to use his faux-praise to catalyze opposition
to the Republican party on the grounds that it was not
only the party of emancipation but also miscegenation.

Not only is this thinly-veiled critique of intermarriage
a horrifying reminder to the modern reader of the
white supremacist attitudes that were the norm in 1863
and remain sadly in circulation today; placed in the
historical context of the miscegenation laws of the time,
which explicitly outlawed intermarriage, we must also
interpret it as a reminder to the nineteenth-century
reader of how those laws made “blending of the races”
a criminal offense and, in this, effectively outlawed
the very existence—both the concept and biological
conception—of multiracial identity. The pamphlet thus
aims not only to mock anyone in support of Antony’s
logic but also to threaten them with punishment.

In both of these examples, multiracial identities
were under political attack because of the fear that
the socially constructed basis of white superiority or
supremacy, “whiteness” itself, could be compromised

Journal on Constitutional Democracy 137

This expression of aversion emanating from both by intermarriage. The persistence of attempts to
sides of the family translated to “I’m not enough.” preserve and insulate this construct can be seen in
A consistent lack of identity has stayed with me over subsequent laws throughout history that have had very
the years as strangers and even family members real, and in most cases very damaging, consequences
have chosen to define me by my absence of a for individuals who fall outside of the socially defined
singular identity. boundaries of “whiteness.” Specifically, the census and
Growing up mixed it was hard to feel like I had a pamphlet exemplify not only that multiracial identities
heritage to claim. I couldn’t speak Korean. I couldn’t have been politicized over the course of American
read Hebrew. Orthodox Jews would tell me, “Well history but also how the intention of this politicization
your mom isn’t Jewish, so you’re not a real Jew,” has consistently been to target individuals of multiracial
as traditionally it has to be passed down from the identity for political exclusion and historical erasure.
mother’s side. I was confused each time I would be told
this, because while I couldn’t understand the prayers “It makes an immigrant laugh to hear
and songs in Hebrew, I knew them by heart from the fears of the nationalist, scared of
attending Shabbat services with my dad every Friday infection, penetration, miscegenation, when
night. Growing up, I was never deemed “enough” by this is small fry, peanuts, compared to
people defining me on their terms. what the immigrant fears—dissolution,
disappearance.” ~ Zadie Smith
138 Kinder Institute
I. This land is my land

Introduced on April 2, 1866, H.R. 416 was an
act submitted to the House of Representatives
in the first session of the 39th Congress. The bill
was read twice and referred to the Committee
on Indian Affairs, where amendments were later
made on June 13, 1866. Described by its authors
as an act “for the benefit of certain half-breeds and
mixed-bloods of the Winnebago tribe of Indians,”
H.R. 416 stipulates that said “half-breeds” and
“mixed-bloods” who are “sufficiently advanced in
civilization” are exempt from the sale of the tribe’s
reservation and may retain some land allotted
to them, provided that (a) the land be subject to
taxation and (b) they abandon all tribal relation.
An amendment added later further demands that
in order for such a patent for land ownership to
be issued, the person applying must appear in
court and take the oath of allegiance that is law
for the “naturalization of aliens.” In addition, the
amendment details how applicants must show
that they are “sufficiently intelligent and prudent
to control their affairs and interests” and that
they have “adopted the habits of civilized life”
before they can formally renounce their tribal
membership and become a U.S. citizen.6

On the most surface of levels, H.R. 416 reads like an "Casta painting containing complete set of 16 casta combinations”
acknowledgement of the social and political legitimacy (ca. 18th century)
of multiracial individuals in the Winnebago tribe.
More specifically, by designating that “half-breed” and
“mixed-blood” members of the tribe can be granted
land, the bill appears to outline a means by which
they can attain citizenship and be lawfully integrated
into political and economic society, albeit with certain
stipulations. Again, on the surface (this cannot be
stressed enough), the bill seems, then, to buck historical
convention and not use these individuals’ multiracial
identity as a warrant for exclusion.

However, digging below this surface level immediately
reveals a more familiar story. Rather than allow the
individuals in question to retain their status as half-
Native American—and, in doing so, acknowledge this
status’ legitimacy—the bill explicitly ties the extension of
the privilege of land ownership to the act of abandoning
tribal relations. The subsequent revision to the bill
underscores legislators’ commitment to this intention
and its implications. In the initial version of the bill, it was
decided that “half-breed” and “mixed-blood” individuals
must “have abandoned or may abandon” their tribal
relation. However, in the later, revised version, the words
“or may abandon” are struck from the bill’s language,
allowing no tribal relation to remain whatsoever if
multiracial individuals are to be deemed “sufficiently
advanced” and considered worthy of the benefits that
come with membership in political society. Returning
to the framing language for this article, the omission of
“or may abandon” thus not only politicizes multiracial
identity but also attempts to incentivize its historical
erasure. In other words, these multiracial individuals can
be deemed citizens only when one component of their
identity “ceases” to exist—only when, that is, they legally
“cease” to be multiracial.

Other instances of the bill’s coded language further
exemplify how, in this case as in many others, being
multiracial often translates to a justification for
exclusion from political society. For example, the bill
suggests that to warrant consideration for advancement
into (and in) political society, one must express that he
possesses qualities such as intelligence, prudence, and
civility, and again, the bill extends access to the means
for such advancement only to multiracial individuals
willing to renounce their Native American heritage.

Journal on Constitutional Democracy 139

On standardized tests, my pencil always hesitated In doing so, H.R. 416 implies on the one hand that
at what to bubble in for my race. (This was before when individuals retain (or refuse to renounce) their
students could bubble in more than one.) My Native American heritage, these qualities of civility,
options were Caucasian, Asian, or Other. I distinctly intelligence, and prudence cannot be expressed.
remember being told by the magnet program By extension, the bill thus also implies that these
coordinator in middle school that I should bubble in qualities exist in multiracial individuals only because
Caucasian; that way, if I did well, my scores would of their proximity to socially constructed ideas about
stand out from my white peers’. She said it would “whiteness”—i.e., that these qualities exist in spite
be harder for my good scores to be noticed if I put of and can only become manifest at the cost of their
Asian. However, it’s also been a privilege to be mixed Native American heritage. (Full Native Americans, it
and choose how I want to be defined on paper. Not is worth noting, are not given an opportunity to prove
everyone has the fluidity and room to do so. that they possess any of these qualities, because, by the
bill’s logic, it is assumed that they simply cannot possess
them in the first place.) On a level of language, the act
of tying social worth to the renunciation of heritage
is further imposed with the demand that “half-breed”
and “mixed-blood” Winnebago tribe members take the
oath of allegiance that is law for the “naturalization of
aliens.” Not only does this add an additional legalistic
dimension to the erasure of multiracial identity; on
a more metaphorical level, it also reinforces the idea
that multiracial identity is broadly insufficient and
can be used as a means of exclusion by virtue of the
fact that whiteness is tantamount to naturalness and
anything other than whiteness is tantamount to a cause
for alienation.

II. Checking a box

In a January 1943 letter to local officials, Walter
Plecker, the state registrar for Virginia’s Bureau
of Vital Statistics—and a noted white supremacist
and supporter of eugenics—urged local clerks to
take stricter action against identification fraud
on various state records. In his letter, Plecker
specifically alerted county registrars to the fact
that “mixed families” (descendants of “free
mulattoes”) were attempting to fraudulently
register themselves on birth certificates, marriage
licenses, draft cards, etc., according to their “non-
negro” heritage, namely as “Indian” or “white.” He
went on to note the success of past attempts, cite
the penalties for fraud, and urge greater diligence
on the part of the clerks, going so far as to circulate
a list of surnames by which these “deceivers” could
be identified.7

140 Kinder Institute

While H.R. 416 encouraged multiracial individuals to Moving from Los Angeles, CA, to Columbia, MO, my
legally abandon their non-white heritage for economic freshman year was a difficult transition. College is a
and legal gain, Plecker does the opposite in his letter, difficult adjustment period in general, but it wasn’t
arguing that multiracial identity—or, more specifically, just dealing with the humidity that made living in
any quotient of “negro heritage”—absolutely de- Missouri hard for me.
legitimized any claim to the privileges associated with
whiteness. As it relates to this article’s larger argument Jack Delano, “Mulatto ex-slave in her house near Greensboro,
about the politicization of multiracial identity, the Alabama” (1941)
second paragraph of Plecker’s letter, quoted in its
entirety below, is the most important:

Now that these people are playing up the
advantages gained by being permitted to give
‘Indian’ as the race of the child’s parents on birth
certificates, we see the great mistake made in not
stopping earlier the organized propagation of
this racial falsehood. They have been using the
advantage thus gained as an aid to intermarriage
into the white race and to attend white schools,
and now for some time they have been refusing
to register with war draft boards as negroes,
as required by the boards which are faithfully
performing their duties. Three of these negroes
from Caroline County were sentenced to prison
on January 12 in the United States Court at
Richmond for refusing to obey the draft law unless
permitted to classify themselves as ‘Indian.’8

Plecker’s purpose for politicizing multiracial identity
revolves around his notion of “advantage.” Specifically,
because his goal is to ensure that social and political
advantages, such as all-white schools and privileged draft
status, remain exclusively in the hands of white citizens,
he uses the “non-white” component of multiracial
individuals’ identity as a legally-binding warrant both
to exclude them from these advantages and to punish
attempts at inclusion as criminally fraudulent.

H.R. 416’s layers of bigotry are echoed in Plecker’s
memo. He not only politicizes multiracial identity as a
way to exclude individuals from societal advantages, but
also uses a language of deception to call into question
the legitimacy—the very idea—of “multiracial-ness” as
an identity. For example, Plecker writes how “[s]ome
of these mongrels, finding that they have been able to
sneak in their birth certificates unchallenged as Indians
are now making a rush to register as white.”9 He further
dismisses the legitimacy of multiracial individuals

Journal on Constitutional Democracy 141

I shifted my life to a place where I didn’t see people by labeling them “racial falsehoods,” and he uses scare
who looked like me, couldn’t find Korean barbecue quotes around white and Indian throughout the letter
or Jewish delis to snack on comfort food I was raised to discredit multiracial identity as a whole and demand
on, and ultimately knew no one. The culture shock that only strict racial binaries be recognized. More
was omnipresent. In California, I grew up with than a scam, Plecker deems this act of “sneaking into
multiracial friends, and people were quicker to white society” worthy of criminal prosecution when
recognize parts of my identity. Missouri was the first he cites the three Caroline County citizens who were
place I was mistaken for an international student who sentenced to prison for refusing to identify as anything
couldn’t speak English. It was the first place I had a other than Indian when registering for the draft.
boy reduce me to simply my outward appearance and
say to me, “What nationality are you? You have a All of the above examples additionally speak to how
nice flavor to you.” It was the first place I saw anti- Plecker uses language to fabricate an air of danger and
Semitic incidents occur on a campus I was struggling urgency surrounding the problem he introduces, a tactic
to call home. that reaches its most feverish pitch with his alarmist claim
that “one hundred and fifty thousand other mulattoes
in Virginia are watching eagerly the attempt of their
pseudo-Indian brethren, ready to follow in a rush when
the first have made a break in the dike.”10 Here, Plecker
paints multiracial individuals as a militarized band of
guerilla rebels eager to overthrow political society as
soon as the opportunity presents itself—or, to more
accurately represent Plecker’s rhetorical aims, as a rebel
contingent that has to be thrown out of society before
this opportunity comes around.

“There is patently no legitimate
overriding purpose independent of
racial discrimination which justifies this
classification. That Virginia prohibits
only interracial marriages involving
white persons demonstrates that the racial
classifications must stand on their own
justification, as measures designed to

maintain White Supremacy.”

~ Chief Justice Earl Warren in

Loving v. Virginia

III. A Snowball Effect

The Citizens’ Council was the newspaper of the
Mississippi chapter of the white supremacist
organization by the same name. Headed by

142 Kinder Institute

William J. Simmons, publication of the paper Charity Organization Society of the City of New York, “Percentage
began in October 1955, when operations were of Negroes in total population-Mulattoes in Negro Population”
largely confined to republishing articles from (1904)
other pro-segregation journalists. By November
1956, Simmons estimated the average monthly G.W. Bromley & Co., “Political caricature No. 4, The
circulation of the paper to be 40,000, much of miscegenation ball” (1864)
which was outside of Mississippi. In April 1957,
the Council began a weekly fifteen-minute
telecast on twelve stations in Alabama, Georgia,
Louisiana, Mississippi, Texas, and Virginia, and its
radio broadcasts at the time were played by over
fifty stations across the South. As Neil McMillen
writes in his book, The Citizens' Council: Organized
Resistance to the Second Reconstruction, “in column
and cartoon [the paper] assailed southern apathy
and moderation and recounted stories of perfidious
white northern liberals and diseased, depraved
and crime-prone Negroes.”11 Headlines in The
Citizens’ Council ranged from, “Inter-Racial Blood
Transfusions Are Dangerous, Doctor Reports,”
to “Psychologists Find Negroes Below Whites
in Capacity For Education.” Various articles also
commented on the rise of mixed marriages.

In a November 1956 issue of The Citizens’ Council, the
article “Mixed Marriages Will Become Commonplace”
summarized the two main points of South Carolina
author Herbert Ravenel Sass’ Atlantic Monthly article
about “racial amalgamation” from that same month:
(a) that mixed marriages would increase in the coming
years; and (b) that the goal of mixed marriage was to
eventually achieve integration and reduce racism.

In general, Sass’ commentary reveals how, in the
time period being examined here, the politicization
of multiracial identity wasn’t exclusively pursued via
political channels, but could be achieved through
manipulation of the cultural landscape as well. Case in
point: Sass’ Atlantic article was a bald attempt to garner
widespread public support for his own (and many
others’) racist views about school integration through
a diabolical combination of cultural fear-mongering,
demonization, and propagandizing on the issue of
multiracial identity. Take, for example, his claim that
racial amalgamation was the “real goal” behind school
integration and his subsequent warning that “northern
support of school integration in the South is due to
the failure to realize its inevitable biological effect in

Journal on Constitutional Democracy 143

Suddenly, most people couldn’t tell I was mixed like regions of large Negro population. If Northerners did
they could back home. Good friends I had all of first realize this,” he added, “their enthusiasm for mixed
semester thought I was only Korean, because to them, schools in the South would evaporate at once.”12 In
those features were the most salient. I never had further characterizing the likelihood and danger of
thought I needed to spell out my identities for people, this effect coming to bear, Sass goes on to explain that
because previously, there had never been a need to. “race preference (which the propagandists miscall race
I learned that my racial ambiguity was affected by prejudice or hate)” isn’t active in the very young, and he
where I was situated geographically. predicts that if young children of different races were to
learn and grow up together in integrated schools, then
their “defenseless mind[s]” would be “exposed to brain-
washing which [they] would not know how to refute.”13
From here, Sass paints a picture of a snowball effect:
first comes school integration, then the integration
of the institution of marriage, and then the cyclical
reproduction of mixed race children and the parallel
growth of an absence of “race preference”—a term
he coins and invokes only to blunt the blatant racism
of his segregationist ideals. The ultimate integration
of not only schools but also families “might be a
solution of a sort,” Sass writes, “but not the one that
the American people would desire,” given that “mixed
marriages [would] inevitably result, beginning with
the least desirable elements of both races, in a great
increase of racial amalgamation.”14

Analyzing Sass’ rhetoric and intention does not require
complicated intellectual gymnastics. He repeatedly (and
convolutedly) denigrates multiracial identity as a way
to forward his own fight against school de-segregation
and, in this, to more broadly promote the exclusion of
both black and multiracial individuals from political
society. And what’s more, he does it in the cheapest
way imaginable: by presenting multiracial identity as
a threat to the most defenseless (children) and sacred
(family) components of society. As if this weren’t
enough, he also invents a false academic logic for his
argument, first citing history as a reason to be wary of
multiracial identity and mixed marriage—writing that
amalgamation is “the very process which throughout
our history we have most sternly rejected”—and then
going on to claim that the separation of races isn’t
just a key part of human history but also imperative
to the maintenance of the natural order of the world:
If mixed marriages were permitted, he writes, “the
salutary instinct of race preference which keeps the
races separate, as in Nature, will be destroyed before it
develops.”15 Tying things back to H.R. 416 and Walter

144 Kinder Institute

Plecker, Sass’ extrapolation that mixed marriages will
become more commonplace with school integration
is used, by his own admission, to “quickly enlist
millions of non-Southerners” in support of his and
the South’s segregationist political agenda, reducing
multiracial individuals, in the process, to little more
than political pawns.

IV. Conclusion

The Citizens’ Council was right on one count. Mixed
marriages did become more commonplace in the
decades after the summary of Sass’ argument was
published, just not as a political means to achieve school
integration. Instead, this increase can be attributed to
a public recognition that all individuals were entitled
to be with the person they loved and, moreover,
that multiracial couples should be afforded the same
rights and privileges as couples of the same race. This
growing sentiment was then politically and legally
codified in the landmark 1967 case Loving v. Virginia,
when the U.S. Supreme Court ruled that “marriage is
one of the ‘basic civil rights of man,’ fundamental to
our very existence and survival.”16 After the ruling in
Loving v. Virginia, mixed marriages increased from 0.4
percent of all U.S. marriages in 1960, to two percent in
1980, according to the census.17

Exploring multiracial identities will hold an
increasingly prominent role in political society and
public discourse as the number of mixed individuals
continues to increase in the United States. A 2015 Pew
Research Center survey estimated that approximately
6.9 percent of the U.S. adult population could be
considered multiracial.18 According to the 2010
U.S. census, the number of white and black biracial
Americans more than doubled between 2000 and
2010, while the population of adults with a white and
Asian background increased by 87 percent over the
same period.19 During the same decade, we also saw
the election of the United States’ first mixed race
president: Barack Obama, the son of a black father
from Kenya and a white mother from Kansas. In 2010,
Kamala Harris, the daughter of an Indian-American
mother and a Jamaican-American father, was the first
woman, the first African American, the first Asian
American, and the first Indian American attorney
general in California. Rather than being manipulated

Journal on Constitutional Democracy 145

Finding a community of other multiracial students on as political chess pieces, multiracial individuals are
finally starting to be viewed as full-fledged human
campus has helped me continue to explore and come beings and free political agents. They can, that is, make
choices for themselves, rather than have others dictate
into my multiracial identity. When I first discovered to them what land they can own, how they can identify,
and who they can marry.
the “Bill of Rights for People of Mixed Heritage,” it
1Bureau, US Census. “About.” US Census Bureau.,
felt like someone had put into words what I always 8 July 2013. Web. http://www.census.gov/topics/
population/race/about.html.
questioned I was allowed to do or feel.
2Bureau, US Census. “About.” US Census Bureau.,
Bill of Rights 8 July 2013. Web. http://www.census.gov/topics/
population/race/about.html.
for
People of Mixed Heritage 3Bureau, US Census. “About.” US Census Bureau.,
8 July 2013. Web. http://www.census.gov/topics/
I HAVE THE RIGHT... population/race/about.html.
Not to justify my existence in this world.
Not to keep the races separate within me. 4Cohn, D’Vera. “Race and the Census: The “Negro”
Not to justify my ethnic legitimacy. Controversy.” Pew Research Center’s Social &
Not to be responsible for people’s discomfort with Demographic Trends Project., 21 Jan. 2010. Web.
my physical or ethnic ambiguity.
http://www.pewsocialtrends.
I HAVE THE RIGHT... org/2010/01/21/race-and-the-census-the-
To identify myself differently than strangers %E2%80%9Cnegro%E2%80%9D-controversy/#.
expect me to identify.
To identify myself differently than how my parents 5Croly, David G. “Miscegenation; the theory of the
identify me. blending of the races, applied to the American white
To identify myself differently than my brothers and man and negro.” New York, H. Dexter, Hamilton &
sisters. co, 1864. Online Text. Retrieved from the Library of
To identify myself differently in different Congress, https://lccn.loc.gov/05009520.
situations.
6H.R. 416, 39th Cong. (1866) (enacted). Print.
I HAVE THE RIGHT...
To create a vocabulary to communicate about 7Plecker, Walter. “Walter Plecker Letter to Local
being multiracial or multiethnic. Officials.” Letter to Local Registrars, Physicians,
To change my identity over my lifetime--and more Health Officers, Nurses, School Superintendents, and
than once. Clerks of the Courts. Jan. 1943. MS. N.p.
To have loyalties and identification with more
than one group of people. 8Plecker, Walter. “Walter Plecker Letter to Local
To freely choose whom I befriend and love. Officials.” Letter to Local Registrars, Physicians,
Health Officers, Nurses, School Superintendents, and
© Maria P. P. Root, PhD, 1993, 1994 Clerks of the Courts. Jan. 1943. MS. N.p.

9Plecker, Walter. “Walter Plecker Letter to Local
Officials.” Letter to Local Registrars, Physicians,
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10Plecker, Walter. “Walter Plecker Letter to Local
Officials.” Letter to Local Registrars, Physicians,

146 Kinder Institute

Health Officers, Nurses, School Superintendents, and
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11McMillen, Neil R. “The Citizens’ Council;
Organized Resistance to the Second Reconstruction,
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12Sass, Herbert R. Mixed Schools and Mixed Blood.
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13Sass, Herbert R. Mixed Schools and Mixed Blood.
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14Sass, Herbert R. Mixed Schools and Mixed Blood.
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15Sass, Herbert R. Mixed Schools and Mixed Blood.
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16“Loving v. Virginia 388 U.S. 1 (1967).” Justia Law.
N.p., n.d. Web. 02 Feb. 2017.

17“Race of Wife by Race of Husband: 1960, 1970,
1980, 1991, and 1992.” Census.gov. U.S. Bureau of the
Census, 10 June 1998. Web. 02 Feb. 2017.

18“Multiracial in America.” Pew Research Center’s
Social & Demographic Trends Project. Pew Research
Center, 11 June 2015. Web.

http://www.pewsocialtrends.org/2015/06/11/
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19Jones, Nicholas A., and Jungmiwha Bullock. “The
Two or More Races Population: 2010.” Washington,
DC: U.S. Dept. of Commerce, Economics and
Statistics Administration, U.S. Census Bureau, 2012.
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https://www.census.gov/prod/cen2010/briefs/
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Journal on Constitutional Democracy 147

Image Credits Wilson took the oath of office and read his inaugural
address on the stand on the steps of the east front of
Pellerito the capitol--inside the railing are ambassadors, justices
of the Supreme Court, representatives in Congress,
Cover. “Eisenhower and President-elect John members of the outgoing and incoming cabinets,
Fitzgerald Kennedy” (1960) and other persons privileged by official position, past
or present--massed in front, the great concourse of
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Kennedy” Wikimedia Commons. 1960. view of the day’s ceremonies” The New York Public
https://commons.wikimedia.org/wiki/ Library Digital Collections. 1913.
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ca8a-0132-aa37-58d385a7b928
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Library Digital Collections. 1796.
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d3b6-7de3-e040-e00a18066263#/?uuid=5ea9e413- F. Kennedy Presidential Library and Museum,
2ab9-eb22-e040-e00a18065372 Boston. “Inaugural Address of John F. Kennedy, 35th
President of the United States. Washington, D.C., 20
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(1989) “Mos Def” Wikimedia Commons. 1999.
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prepares_for_farewell_1-11-89.jpg
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address” (1961) Yorck” Library of Congress Digital Collections. ca 1778.
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3. James Gillray, “Fashion before Ease; —or— ; A
The Miriam and Ira D. Wallach Division of Art, good Constitution sacrificed for a Fantastick Form”
Prints and Photographs: Print Collection, The New (1793)
York Public Library. “The scene when Woodrow

148 Kinder Institute

Library of Congress Prints & Photographs Division. “The Bloody Massacre” Wikimedia Commons. 1770
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sacrificed for a Fantastick Form” Library of Congress bloody_massacre_by_Paul_Revere.jpg
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the Battle of Princeton, January 3, 1777” (1786) Chandler Christy’s 1940 painting Scene at the Signing
of the Constitution” (1978)
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Princeton, January 3, 1777.” Wikimedia Commons. “A key identifying the subjects of Howard Chandler
1786. Christy’s 1940 painting Scene at the Signing of the
https://commons.wikimedia.org/wiki/File:The_ Constitution of the United States, a well-known work
Death_of_General_Mercer_at_the_Battle_of_ which hangs in the United States Capitol Building
Princeton_January_3_1777.jpeg (purchased from the painter in 1819)” Wikimedia
Commons. 1978.
5. ATOMIC Hot Links, “Van Ness near 54th Street” https://commons.wikimedia.org/wiki/1. “Order of
(1992) procession, in honor of the Constitution of the United
States” (1788)
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Ness near 54th Street” Flickr. 1992. 1. “Order of procession, in honor of the Constitution
https://www.flickr.com/photos/7552532@ of the United States” (1788)
N07/3112339632/in/photolist-5K2y99-pdF9ZQ-
haqbqe-i9RgRb-eDuH3E-i9B2cE-8fxgpH-io9Ma- Library of Congress, Rare Book and Special
jiN6q5-e7zne7-mpcsST-bAsfmQ-dMQXBX- Collections Division. “Order of procession, in honor
9BdzMD-9rzxsY-dqevgP-dqip8V-A9Vpcx-m55xU2- of the Constitution of the United States . . . by order
rmEVu-2Rzhe-dq8hyp-dqibjH-7Cy8vx-q4bFRS- of the Committee of Arrangements, Richard Pratt,
dqrQjm-dq7ShX-8hpqde-vDBr-6uvogo-5WhnLc- chairman, July 23 [1788]” Library of Congress Digital
qqofxt-4Dtcmp-fva8w5-qqypsr-dZC2R3-7CBXY7- Collections. 1788
dq2fDP-7TAubB-7CBYr9-iJehwE-49EbgJ-fQFrMD- http://www.loc.gov/exhibits/creating-the-
jgvyE-eDuGsA-SkzF8e-bDciTf-eDuGzC-9phkYS- united-states/Constitution/Ratification/Assets/
qERnj us0068_02_725.Jpeg

Made Public Domain by User ATOMIC Hot 2. Chester Raymond Miller, “Your right to vote is
Links under the Creative Commons Attribution- your opportunity to protect, over here the freedoms
NonCommercial-NoDerivs 2.0 Generic License. No for which Americans fight over there” (1943)
changes were made to the image and its inclusion in
no way reflects the endorsement of the licensor. Library of Congress, Prints and Photographs
https://creativecommons.org/licenses/by-nc-nd/2.0/ Division. “Your right to vote is your opportunity to
legalcode protect, over here the freedoms for which Americans
fight over there” Library of Congress Digital Collections.
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President Al Gore; sitting with LeVar Burton” (1985)
3. Amos Doolittle, “The Looking Glass” (1787)
“Tipper Gore, wife of then Senator and later Vice
President Al Gore; sitting with LeVar Burton” Library of Congress, Prints and Photographs
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https://commons.wikimedia.org/wiki/File:Tipper_ Digital Collections. 1787.
Gore.jpg https://www.loc.gov/pictures/item/2008661778/

7. Paul Revere, “The Bloody Massacre” (1770)

Journal on Constitutional Democracy 149

4. “Don’t Sell Your Vote” (1953) ca. 1850.
https://commons.wikimedia.org/wiki/
“Don’t Sell Your Vote” Wikimedia Commons. 1953. File:TrafalgarBattle.jp
https://commons.wikimedia.org/wiki/File:Don’t_Sell_
Your_Vote_-_NARA_-_5729938.jpg Williams-Vann

Smith Creative Component Cover. “Willie McGee in his cell at Hinds County Jail,
Jackson, Mississippi” (ca. 1945-1950)
1. Peter Woodentop, “LCFC lift the Premier League
Trophy” (2016) Schomburg Center for Research in Black Culture,
Photographs and Prints Division, The New York
“LCFC lift the Premier League Trophy” Wikimedia Public Library. “Willie McGee in his cell at Hinds
Commons. 2016 County Jail, Jackson, Mississippi” The New York Public
https://commons.wikimedia.org/wiki/File:LCFC_lift_ Library Digital Collections. 1945-1950.
the_Premier_League_Trophy_(26943755296).jpg https://digitalcollections.nypl.org/items/79c74cb6-
f664-ec7f-e040-e00a18065e1a
Made Public Domain by Peter Woodentop under
the Creative Commons Attribution-Share Alike 2.0 1. “Daisy Bates takes a walk” (ca. 1957)
License. No changes were made to the image and its
inclusion in no way reflects the endorsement of the Schomburg Center for Research in Black Culture,
licensor. Photographs and Prints Division, The New York
https://creativecommons.org/licenses/by-sa/2.0/ Public Library. “Daisy Bates takes a walk - Activist
legalcode Daisy Bates picketing with placard: “Jailing our youth
will not solve the problem in Little Rock. We are only
2. “Robert McClanahan on a Paraguayan stamp for asking for full citizenship rights”” The New York Public
the 1980 Winter Olympics” (1981) Library Digital Collections. ca. 1957.
https://digitalcollections.nypl.org/items/8e0aac3d-
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1980 Winter Olympics” Wikimedia Commons. 1981.
https://commons.wikimedia.org/wiki/ 2. “Poster for the first-run showing of D.W. Griffith’s
File:TeamUSA1980_stamp.png Birth of a Nation at the Moore Theatre, Seattle
Washington” (ca. 1915)
3. Emanuel Luetze, “Washington Crossing the
Delaware” (1851) “Poster for the first-run showing of D.W. Griffith’s
Birth of a Nation at the Moore Theatre, Seattle
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Commons. 1851. https://commons.wikimedia.org/wiki/File:Birth_of_a_
https://commons.wikimedia.org/wiki/ Nation_Poster_-_Seattle.jpg
File:Washington_Crossing_the_Delaware_by_
Emanuel_Leutze,_MMA-NYC,_1851.jpg 3. “Silent Protest parade on Fifth Avenue, New York
City, July 28, 1917, in response to the East St. Louis
4. “Dewey Defeats Truman” (1948) race riot” (1917)

The Harry S. Truman Museum. “Dewey Defeats Schomburg Center for Research in Black Culture,
Truman” Wikimedia Commons. 1948. Photographs and Prints Division, The New York
https://commons.wikimedia.org/wiki/File:Dewey_ Public Library. “Silent Protest parade on Fifth
Defeats_Truman.jpg Avenue, New York City, July 28, 1917, in response to
the East St. Louis race riot. In front row are James
5. “Map of the Trafalgar Battle” (ca. 1850) Weldon Johnson (far right), W. E. B. DuBois (2nd
from right), Rev. Hutchens Chew Bishop, rector of St.
“Map of the Trafalgar Battle” Wikimedia Commons. Philip’s Episcopal Church (Harlem) and realtor John
E. Nail” New York Public Library Digital Collections.
150 Kinder Institute 1917.