Journal on Constitutional Democracy

"Still from the American film The Birth of a Nation" (1915) Epoch Producing Co., "Poster for the American film The Birth of a
Nation" (1915)
Black Codes and Jim Crow laws, the most frequently-
cited beginnings of modern black criminality. We saw
it in Birth of a Nation, which seemed to use its popular
status as "the most riveting movie of its time" to
sanction the stigmatization of the African American
community. We saw it in the Southern Strategy, and
we continue to see it today through the aftershocks of
the disastrous War on Drugs under Nixon and Reagan’s
reigns. Can we rid America of these prejudices toward
the African American community that have long been
built off escalating, systemic racism? Let us begin by
having the conversation that our nation is too ashamed
to have, about how the country’s debilitating history has
contributed to the stereotype of black criminality and its
consequences, and how we must reverse this problem.

1U.S. Constitution. Amend. XIII

2The Birth of a Nation. Dir. D.W. Griffith. Epoch,
1915. Film.

3Ibid

4Wilson, Theodore Brantner. The Black Codes of the
South. Tuscaloosa: University of Alabama Press, 1965.
57.

5Gulliver, Reg and Hal Murphy. The Southern Strategy.
New York: Scribner, 1971. 3.

6Robinson, Eugene. “Why won’t the GOP compete
for African American votes?” The Washington Post.
WP Company. October 8, 2010. Web. Accessed Dec
1 2016.

Journal on Constitutional Democracy 51

http://www.washingtonpost.com/wp-dyn/content/ from http://www.criminaldefenselawyer.com/resourc-
article/2010/10/07/AR2010100705222.html es/crack-vrs-powder-cocaine-one-drug-two-penalties.
htm
7Gulliver and Murphy, 3.
18Fair Sentencing Act. (n.d.). Retrieved May 02, 2017,
8Corey Robin. The Reactionary Mind: Conservatism from from https://www.aclu.org/feature/fair-sentencing-act
Edmund Burke to Sarah Palin. Oxford University Press,
2011. 50. 19“The Punishing Decade: Prison and Jail Estimates at
the Millennium.” Justice Policy Institute, May 2000.
9“The ‘Reagan Revolution,’ 1984.” N.p., n.d. Web. 18 Web. Dec. 2016.
Dec. 2016.
http://www.justicepolicy.org/images/upload/00-05_
https://www.google.com/search?q=the+reagan+revo- rep_punishingdecade_ac.pdf
lution+1984&oq=the+reagan+revolution+1984&aqs=-
chrome..69i57j69i64.3658j0j4&sourceid=-
chrome&ie=UTF-8

10Delaney, Arthur. “Who Gets Food Stamps? White
People, Mostly.” The Huffington Post. TheHuffington-
Post.com, 28 Feb. 2015. Web. 18 Dec. 2016.

http://www.huffingtonpost.com/2015/02/28/
food-stamp-demographics_n_6771938.html

11“Thirty years of America’s Drug War: A Chronolo-
gy.” PBS. PBS, 2014. Web. Dec. 2016.

http://www.pbs.org/wgbh/pages/frontline/shows/
drugs/cron/

12Tom LoBianco. “Report: Nixon’s War on Drugs
Targeted Black People.” CNN. Cable News Network,
n.d. Web. Accessed December 17, 2016.

http://www.cnn.com/2016/03/23/politics/john-ehrli-
chman-richard-nixon-drug-war-blacks-hippie/index.
html

13Legal, I. U. (n.d.). USLegal. Retrieved May 02, 2017,
from https://definitions.uslegal.com/c/crack-cocaine/

14England, D. C. (2017). Differences Between Crack
and Coke | Criminal Law. Retrieved May 02, 2017,
from http://www.criminaldefenselawyer.com/
resources/crack-vrs-powder-cocaine-one-drug-two-
penalties.htm

15Jesselyn McCurdy and Deborah Vargins. Cracks
in the System: Twenty Years of the Unjust Federal Crack
Cocaine Law. American Civil Liberties Union, 2006. i.

16McCurdy and Vargins, 1.

17England, D. C. (n.d.). Differences Between Crack
and Coke | Criminal Law. Retrieved May 02, 2017,

52 Kinder Institute

Disharmony

Journal on Constitutional Democracy 53

"Lucille Ball with the twin boys who played Little Ricky" (1955)

Pigs in the Parlor: Carlin,
Pacifica, and the Case
for FCC Deregulation

by Spencer Tauchen

54 Kinder Institute

Television has evolved dramatically since the dawn unmarried, interracial, and same-sex couples in bed—
of network TV in the late 1940s. Network executives or to acknowledge the existence of toilets. Despite this,
at the time appreciated their unique new power to modern broadcast television still has more in common
broadcast directly to living rooms across America, and with the past than it cares to admit. As was the case
as a result, they shied away from producing any material in the 1950s, writers today are still bound by fairly
that could be seen as crass or suggestive enough to strict government regulation. Broadcast networks
alienate their viewership. I Love Lucy’s Lucille Ball and might let actors say ‘pregnant’ now, but the Federal
Desi Arnaz, although married and expecting a child in Communications Commission (FCC) still will not
real life, were depicted as a married couple that slept in allow them to say ‘shit.’ As the history of Supreme
separate twin beds. When Lucy gave birth to a child on Court cases related to regulating obscenity reflects,
the show, the network forbade writers from using the the line between what is acceptable and what is not
word ‘pregnant.’1 Even Mary Kay and Johnny, the first is difficult, if not impossible, to draw, leaving some to
television program to show married characters sharing wonder both if the government ought to draw this line
a bed, failed to include a bathroom in their apartment. in the first place and if such restrictions are still even
Almost two decades later, little had changed: The necessary given the changing nature of today’s media
Brady Bunch featured six siblings who shared a single and cultural landscapes.
bathroom that lacked a toilet.
Any discussion of television broadcast standards has to
ABC Television, “Cast photo of the program The Brady Bunch” begin with the man who helped challenge them the most:
(ca. 1973-1974) George Carlin. Widely considered to be one of history’s
most influential stand-up comedians, Carlin became a
When compared with the much more conservative household name following his frequent appearances on
past, present-day broadcast television seems a paragon The Tonight Show with Johnny Carson. While performing
of progress. Over time, broadcast networks have on NBC, Carlin was bound by the same restrictions
relaxed their self-imposed standards of decency to that governed other broadcast television shows of the
the point that it is no longer taboo to show married, 1960s and 1970s, and this experience helped lay the
foundation for his most notorious set, “Filthy Words,”2
in which he describes the frustrating process by which
he learned bad words as a kid. Because no one was able
to provide him with an exhaustive list of the words that
he could and could not say during childhood, he was
forced to resort to trial and error. He would say a bad
word and learn it was bad only after he got smacked
across the head for saying it. Although Carlin plays up
his analysis for comedic effect, he makes an important
point. Even today, no one can provide a definitive list
of profane words, and the impossibility of doing so is
further underscored by the fact that a word’s degree of
vulgarity can depend on context.

“What is freedom of expression? Without
the freedom to offend, it ceases to exist.”

~ Salman Rushdie

Carlin was not the only person at the time to highlight

Journal on Constitutional Democracy 55

this very issue. In his concurring opinion in Jacobellis v. Chief Justice Warren Burger noted in the subsequent
Ohio (1964), Justice Potter Stewart likewise discussed obscenity-related case Miller v. California (1972),
the inherent difficulty in defining obscenity, writing, demonstrating a total lack of redeeming social value
“I shall not today attempt further to define the kinds amounts to “a burden virtually impossible to discharge
of material I understand to be embraced within that under our criminal standards of proof.” For example,
shorthand description; and perhaps I could never two years after Jacobellis, in a case peculiarly named
succeed in intelligibly doing so. But I know it when A Book Named “John Cleland’s Memoirs of a Woman
I see it.”3 Stewart’s “I know it when I see it” approach of Pleasure” v. Massachusetts (1966), the Court failed
exemplifies what is perhaps the primary obstacle that to find a “patently offensive” erotic novel obscene
the government confronts in attempting to successfully because it was not “unqualifiedly worthless.”6 In order
regulate obscenity: the fact that there is no sufficient, to prohibit objectionable speech, the Court would thus
intelligible guideline for capturing everything that is have to change its definition of obscenity.
obscene and excluding everything that is not. Even
if one believes that the government has the right or Frank Griesshammer, "Die Memoiren der Fanny Hill" (2016);
duty to limit obscene content on the airwaves, if “Cover of an American edition of Fanny Hill” (c. 1910)
Stewart’s analysis is correct, then regulators face a
lose-lose dilemma. They can set a universal guideline In 1972, eight years after the decision in Jacobellis
for obscenity, knowing that it is likely to limit some v. Ohio, Marvin Miller, a mail-order pornography
content it should not and fail to limit some content it salesman, offered the Supreme Court its chance to
should, or they can determine obscenity on a case-by- redefine obscenity in Miller v. California. At issue in
case basis. The former method seems inconsistent and the case was whether or not an unsolicited brochure
unsatisfactory, and the latter seems like it would hardly mailed by Miller advertising pornography was in
improve on Carlin’s mother informing him that a word violation of a California statute that prohibited the
was bad by smacking him over the head after he had distribution of obscene materials. Ultimately, the
already said it. Supreme Court ruled against Miller, reaffirming its
decision in Roth that the First Amendment does not
Tracing the origins of this dilemma even further back, protect obscenity and then deeming Miller’s brochure
the standard utilized by the Court in Jacobellis in 1964 to be obscene according to yet another three-pronged
stemmed from the 1957 case of Roth v. United States.4 test constructed specifically for the case. According to
In Roth, the Court found that the First Amendment the Court, a work could now be considered obscene
does not protect obscene material, and, as a result, and legally subject to government regulation if:
concluded that the plaintiff’s erotic literature magazine
could be restricted because it fell in line with a newly 1) The average person, applying contemporary
devised three-pronged definition of obscenity: ‘community standards,’ would find that the work,
taken as a whole, appeals to the prurient interest,
(a) the dominant theme of the material taken as 2) the work depicts or describes, in an offensive
a whole appeals to the prurient interest in sex;
(b) the material is patently offensive because it
affronts contemporary community standards
relating to the description or representation
of sexual matters; and (c) the material is utterly
without redeeming social value.5

Definitions of obscenity often commit one of two
errors: They are too permissive or too restrictive.
The definition in Roth proved guilty of the former. In
practice, it is nearly impossible to demonstrate that a
work is “utterly without redeeming social value.” As

56 Kinder Institute

way, sexual conduct or excretory functions, as This all changed in 1973, when a New York radio
specifically defined by applicable state law, and 3) station played Carlin’s “Filthy Words” standup routine
the work, taken as a whole, lacks serious literary, in the mid-afternoon, giving the FCC an opportunity
artistic, political, or scientific value.7 to broaden its powers. Following a public complaint,
the FCC issued the station a formal reprimand,
Overhauling the definition utilized by the court in Roth threatening more severe action if another infraction
and Memoirs, under the new “Miller test,” a work with took place. The station immediately appealed the
social value could be ruled obscene, so long as that decision, leading to the case FCC v. Pacifica (1978). By
value was not of a “serious literary, artistic, political, or any objective standard, Carlin’s standup—although
scientific” nature. New, but still fundamentally flawed, crude to some—is not obscene. His commentary has
the Court’s definition in Miller struggles with the same obvious artistic and political value, making it a far cry
issue that plagued the definitions of obscenity that from the brochure at issue in Miller. Because of this,
came before it: there is no way to apply it objectively. the question at hand in FCC v. Pacifica was neither
For example, there is no empirical test for determining whether Carlin’s content was obscene nor if the FCC
serious artistic value. Take Andre Serrano’s Piss Christ. had the right to regulate obscene content. Instead, the
The work is a red-tinted photograph of a plastic crucifix Court needed to decide whether the FCC could legally
submerged in the artist’s urine. One might argue that regulate indecent or profane content that fell short of
the work appeals to the prurient interest, depicts an qualifying as obscenity under the “Miller test.” The
excretory function, and lacks serious artistic value; but U.S. Court of Appeals in Washington, D.C., sided with
one might just as easily argue that the work holds serious the station, holding that the FCC’s action was invalid
artistic value for its nuanced critique of what modern because it either “constituted censorship [,] which was
Christianity has done to Christ. It is not obvious which expressly forbidden by…the Communications Act of
interpretation is correct. Perhaps both. Perhaps neither. 1934,” or because the material itself was not obscene
There is no consensus among average persons as to and thus protected by the First Amendment.9
whether such works are obscene or not, leaving Supreme
Court justices no option but to call it as they see it. The FCC appealed the case to the U.S. Supreme
Court where, by a 5-4 decision, the lower court’s
Despite the difficulty it faced in defining obscenity, the ruling was reversed. In the majority decision, Justice
Supreme Court of the mid-twentieth century made John Paul Stevens wrote that the FCC’s action
one thing certain: obscenity was not protected by the neither violated the Communications Act of 1934
First Amendment. As a result, the FCC settled into its nor restricted First Amendment-protected speech. In
power to bar content deemed obscene from cable and order for its actions to constitute censorship, Stevens
satellite, as well as from broadcast TV and radio.8 For argued, the FCC would need to edit broadcasts before
material that “failed” to meet the “Miller test,” however, they aired. Furthermore, he added, nowhere does the
the FCC’s power of regulation was ill defined; but since Communications Act “deny the FCC the power to
few broadcast TV and radio stations of the era were review the content of completed broadcasts.”10 Finally,
pushing the boundaries of acceptability, the FCC had the majority found that a work is not exempt from
no cause to clarify or even test this power’s extent. FCC regulation simply because it is not obscene, a

1927 The first electronic television is demonstrated. 1950 Nine percent of American households have
1941 1954 television.
1946 Bulova Watches purchases the first television ad. 1957
The Tournament of Roses Parade becomes the
1947 NBC becomes the first national broadcast first national color television broadcast.
network to offer continuous over-the-air
broadcasting. Leave it to Beaver films the first toilet* in American
television history. (*The network only let them film
Mary Kay and Johnny becomes the first TV the tank, not the bowl).
program to show a married couple sharing the
same bed.

Journal on Constitutional Democracy 57

CBS Television Network, "Publicity photo of American actors and context of a broadcast. They reasoned that Carlin’s
profanity-laced standup is a nuisance if it is broadcast
Isabel Sanford, Sherman Hemsley, and Mike Evans" (1974) at a time at which children are likely in the audience.
Citing Justice George Sutherland’s opinion in Euclid v.
determination that extended the FCC’s regulatory Ambler Realty Co. (1926), Stevens wrote, “‘a nuisance
power to indecent and profane content. So even though may be merely a right thing in the wrong place—like
Carlin’s standup lacked the prurient appeal necessary a pig in the parlor instead of the barnyard.’ We simply
to fail the “Miller test,” it still met Stevens’ definition hold that, when the Commission finds that a pig has
of indecency, “nonconformance with accepted entered the parlor, the exercise of its regulatory power
standards of morality,”11 and on top of this, Carlin’s does not depend on proof that the pig is obscene.”13
use of expletives also met the definition of profanity,
“‘grossly offensive’ language that is considered a public In his dissent in Pacifica, Justice William J. Brennan, Jr.
nuisance.”12 Broadcast television and radio, the Court offered a stinging indictment of the majority, accusing
held, are both “uniquely pervasive” in the home and them of misguidedly “[attempting] to impose [their]
“uniquely accessible to children,” and because of this, notions of propriety on the whole of the American
the FCC ought to tailor its actions both to the content people,”14 and further arguing that the constitutional
protection offered to speech should not depend on
how much “social value [is] ascribed to that speech
by five Members of this Court.”15 Because Carlin’s
standup routine met neither grounds for obscenity
nor incitement, Brennan questioned the FCC’s right
to restrict it. On the one hand, he acknowledged that
individuals do have a vested interest in protecting what
content enters the privacy of their homes as well as
what material is consumed by their children. However,
he qualified this with the argument that, by allowing
broadcast airwaves into their home, consumers submit
themselves to the possibility of stumbling onto material
that they find objectionable. Though he conceded that
offended individuals might experience discomfort in the
brief moment before they change the channel, Brennan
ultimately reasoned that their privacy concerns were
secondary to the rights of broadcasters and interested
viewers to produce and consume that material. Keeping
with Stevens’ animal analogy, Brennan countered that
restricting a broadcaster’s speech to protect a potentially
offended viewer constitutes “[burning] the house to
roast the pig.”16

1957 Elvis appears on The Ed Sullivan Show and is 1976 TBS becomes the first basic cable network
1960 barred from being filmed below the waist. launched by satellite.
1968 1978
1972 Over ninety percent of American households 1981 FCC v. Pacifica is decided by the Supreme Court.
have television.
1991 SNL fires Charles Rocket for saying “fuck” live
Star Trek scripts the first interracial kiss in U.S. on-air.
television history.
L.A. Law broadcasts the first same-sex kiss in
HBO launches. U.S. television history.

58 Kinder Institute

“All censorships exist to prevent anyone Terms to Know
from challenging current conceptions
and existing institutions. All progress Obscene: “content [that] does not have protection
by the First Amendment. For content to be ruled
is initiated by challenging current obscene, it must meet a three-pronged test
conceptions, and executed by supplanting established by the Supreme Court: It must appeal
existing institutions. Consequently, the to an average person’s prurient interest; depict or
first condition of progress is the removal of describe sexual conduct in a ‘patently offensive’ way;
censorship.” ~ George Bernard Shaw and, taken as a whole, lack serious literary, artistic,
political or scientific value.” Unprotected across all
The Supreme Court’s decision in Pacifica cemented media and platforms.
the FCC’s ability to regulate indecent content—a
power it retains today. Although profane and indecent Indecent: “content  [that] portrays sexual or
speech is protected by the First Amendment, the FCC excretory organs or activities in a way that does not
prohibits it from appearing on broadcast TV or radio meet the three-prong test for obscenity.”
from six o’clock in the morning to ten o’clock in the
evening, times “when there is a reasonable risk that Profane: “content [that] includes “grossly offensive”
children may be in the audience.”17 These restrictions, language that is considered a public nuisance.”
however, do not apply to cable TV, satellite TV,
or satellite radio, because they are all subscription FCC: Federal Communications Commission;
services. The reason for this difference in enforcement U.S. federal agency tasked with enforcing
can be seen in Stevens’ logic in Pacifica. Broadcast communications laws and regulations.
television is “uniquely pervasive”18; viewers are not, for
instance, given the opportunity to opt out of receiving Broadcast/network television: freely distributed
NBC, ABC, or their local FM stations. If they own channels (ex: ABC, NBC, etc.) that generate revenue
a television or radio, they receive these channels. By solely through advertising; bound by FCC regulations
contrast, consumers must go out of their way to pay regarding obscenity, indecency, and profanity.
for subscription services, and in doing so, they willingly
take on the risk that these new channels will introduce Cable/satellite television: channels provided to paid
indecent or profane content into their homes. subscribers via cable or satellite transmission that
generate revenue from subscriptions and advertising
In the nearly 40 years since the ruling in Pacifica, FCC (ex: TBS, ESPN, etc.); bound only by FCC regulations
regulations remain one of the few constants in an regarding obscenity.
ever-changing television landscape. Since Pacifica, the
number of entertainment and media platforms available Subscription channels: channels that generate all
in homes has dramatically increased. Cable and satellite revenue from customer subscriptions (ex: HBO,
Showtime, etc.); bound only by FCC regulations
regarding obscenity.

1991 The World Wide Web is first released to the 2015 Eighty-four percent of American adults report
general public. 2015 using the internet.
2017
2000 Fifty-two percent of American adults report using HBO Now, a subscription service that does not
the internet. require a cable or satellite subscription, launches.

2004 CBS is fined over $500,000 for Janet Jackson’s YouTube announces YouTube TV, a subscription
Super Bowl halftime nip slip. television channel offering forty channels
including Fox, ABC, CBS, NBC, and ESPN.
2007 Netflix introduces streaming media.

Journal on Constitutional Democracy 59

TV have arguably become ubiquitous. Premium thousands of programs on streaming services, or one
subscription networks, like HBO and Showtime, of countless other programs available online. Similarly,
have emerged as titans in the industry, and streaming for children in most households, broadcast television is
services, like Netflix, Amazon, and Hulu, were no easier to access than cable, Netflix, or the internet,
founded and have begun creating their own original meaning that, if the FCC did lift its regulations,
programming. (And of course the internet now offers children would be no more likely to stumble upon
consumers easy access to seemingly unlimited content). profane or indecent material. Furthermore, parents
All of the services mentioned above are available in today are offered control options for television and
most homes across the country and are exempt from internet that did not exist at the time of Pacifica and
FCC indecency and profanity regulations.19 Even that they can use to easily filter out whatever material
obscene content—although barred from cable and they deem inappropriate. Instead of the government
satellite—is readily accessible online at all hours of the restricting protected speech, these settings make
day. Broadcast television, by contrast, remains bound by parents the ultimate authority on what is and is not
Carter-era standards of decency. The new golden era of acceptable for their children to watch.
television has flourished on networks that can produce
programs which challenge our modern standards of A world without FCC regulation would not be too
acceptability. On broadcast stations, by contrast, writers terribly different from the world we live in today.
are still struggling to find “‘a more potent way to call Relaxing standards would give broadcast networks
somebody a jerk.”’20 the latitude to compete with cable and subscription
networks, but it is unlikely that this change alone
Disney-ABC Television Group, “Modern Family” (2014) would have a dramatic effect on the content that
broadcast networks produce. Cable networks, although
With these dramatic changes in mind, it makes sense free from FCC profanity and indecency restrictions,
to reconsider the majority’s assessment of broadcast are still cautious about their use of language and nudity.
television in Pacifica, specifically the question of Breaking Bad, for instance, was notoriously restricted
whether or not broadcast television is still “uniquely by AMC from using ‘fuck’ more than a couple times
pervasive” or “uniquely accessible to children.” I am per season. Many other cable dramas use the word even
inclined to say that it is not. Yes, it is still the only more sparingly, if it all, and there is nothing that would
service that does not require a subscription, but very, lead us to believe that deregulating broadcast networks
very few Americans rely on it today as their sole source would yield a different result. A simple, but no less
of television programming. Upwards of 80 percent of true, answer as to why this is the case is that pressure
Americans pay for cable.21 Add in those with internet from advertisers keeps networks from producing
and streaming services, and that number rises even objectionable material. More specifically, as advertisers
higher. If consumers in 2017 find themselves put off have an obvious financial interest in associating their
by what is being broadcast, they likely have the option product with programs that audiences like, shows that
to watch one of hundreds of other channels, one of fail to conform “with accepted standards of morality”—
shows that actively turn viewers off—are unlikely to get
desired advertising support. At the same time, though,
as these accepted standards naturally evolve, advertisers’
attitudes will evolve with them, a relationship which
in turns creates an organic mechanism for content
regulation becoming less stringent and more effective.
An advertiser in 1958 might have felt uncomfortable
backing a show that included a toilet, but an advertiser
in 2010 likely did not care. An advertiser in 2017 might
be uncomfortable supporting a show that includes
graphic nudity, but by 2032, that trepidation might
also fade away. By tying regulation to the economic

60 Kinder Institute

interests of advertisers, then, the resulting standards 9FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
will more accurately represent the current beliefs and Ct. 1978.
values of average American audiences.
10FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
The government has a vested interest in keeping Ct. 1978.
socially unacceptable material out of American living
rooms, but current FCC regulation is neither the 11FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
most effective nor the least restrictive way of doing Ct. 1978.
so. Justice Brennan’s argument in Pacifica rings even
truer today. The discomfort felt by offended persons 12“Obscene, Indecent and Profane Broadcasts.” Feder-
need not outweigh the rights of broadcasters or al Communications Commission. Federal Communi-
other consumers. With parental control options and cations Commission. https://www.fcc.gov/consumers/
countless new sources of television, individuals can guides/obscene-indecent-and-profane-broadcasts
come closer than ever to ensuring that material they
find objectionable never makes it into their homes. 13FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
In addition, external forces already lead networks to Ct. 1978.
moderate their content to meet the public’s standards
of decency. To continue Pacifica’s analogy, the brick wall 14FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
created by FCC regulations does succeed in keeping Ct. 1978.
pigs out of the parlor, but it is unnecessary; the pigpen
created by pressure from advertisers, audiences, and 15FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
parental controls is enough. Moreover, eliminating Ct. 1978.
these redundant and cumbersome regulations will
begin to help broadcast networks create content 16FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
that is more adaptive to ever-changing standards of Ct. 1978.
social acceptability and more competitive in today’s
entertainment marketplace. 17“Obscene, Indecent and Profane Broadcasts.” Feder-
al Communications Commission. Federal Communi-
1Mikkelson, David. “Early to Bed.” Snopes.com. 11 cations Commission. https://www.fcc.gov/consumers/
January 2016. Urban Legends Reference Pages. 30 guides/obscene-indecent-and-profane-broadcasts
October 2016. http://www.snopes.com/radiotv/tv/
marykay.asp 18FCC v. Pacifica Foundation, 438 U.S. 726, U.S. Sup.
Ct. 1978.
2Carlin, George. “Filthy Words.” Exploring Consti-
tutional Conflicts. UMKC Law School. 30 October 19Anderson, Monica, and Andrew Perrin. “13% of
2016. http://law2.umkc.edu/faculty/projects/ftrials/ Americans Don’t Use the Internet. Who Are They?”
conlaw/filthywords.html Pew Research Center. Pew Research Center, 07 Sept.
2016. Web. 25 Apr. 2017. http://www.pewresearch.
3Jacobellis v. Ohio, 378 U.S. 184. U.S. Sup. Ct. 1964. org/fact-tank/2016/09/07/some-americans-dont-use-
the-internet-who-are-they/
4Roth v. U.S., 354 U.S. 476, U.S. Sup. Ct. 1957.
20Wyatt, Edward. “More Than Ever, You Can Say
5Roth v. U.S., 354 U.S. 476, U.S. Sup. Ct. 1957. That on Television.” The New York Times. The New
York Times, 13 Nov. 2009. Web. 13 Dec. 2016. http://
6Memoirs v. Massachusetts, 383 U.S. 413, U.S. Sup. www.nytimes.com/2009/11/14/business/media/14vul-
Ct. 1966. gar.html

7Miller v. California, 413 U.S. 15, U.S. Sup. Ct. 1973. 21James, Brendan. “Forget Cable Cord-Cutting: 83
Percent Of American Households Still Pay For TV.”
8“Obscene, Indecent and Profane Broadcasts.” Federal International Business Times. IBT Media, Inc., 05
Communications Commission. Federal Communica- Dec. 2015. Web. 13 Dec. 2016. http://www.ibtimes.
tions Commission. https://www.fcc.gov/consumers/ com/forget-cable-cord-cutting-83-percent-american-
guides/obscene-indecent-and-profane-broadcasts households-still-pay-tv-2081570

Journal on Constitutional Democracy 61

United States FBI, “John Hinckley, Jr. Mugshot" (1981)

An Imperfect View of Insanity: The
Media, Public Perception, and Their
Effects on Legislating

by Taylor Tutin

62 Kinder Institute

“REAGAN WOUNDED IN CHEST BY so that misguided reform could be knowledgably
GUNMAN…”1 “HINCKLEY IS CLEARED BUT challenged.
IS HELD INSANE IN REAGAN ATTACK.”2
“HINCKLEY ACQUITTAL BRINGS MOVES “If a madman or a natural fool, or a lunatic
TO CHANGE INSANITY DEFENSE.”3 When in the time of his lunacy do [kill a man],
discussing the insanity defense’s place in American this is no felonious act for they cannot be
legal history, there is one infamous person who bears said to have any understanding of will.”6
the weight of public disapproval of the defense on
his back: John Hinckley Jr. Hinckley attempted to The above statement comes from a 1581 English
assassinate President Ronald Reagan in 1981 but legal treatise and is one of the first recorded instances
ultimately failed, as Reagan recovered from being shot of an insanity provision in the history of law. When
in the chest.4 Hinckley nonetheless became public the English colonists settled in North America, they
enemy number one for his attempt on the president’s brought their rich history of the Common Law with
life, and his acquittal on the basis of insanity not only them, and while the United States' time as English
generated nationwide public outcry but also created colonies may have come to an end in 1776 with the
increasingly negative and often misinformed public Declaration of Independence, the founders were still
opinion about the insanity defense as a legal provision. heavily influenced by British legal traditions as they
Perhaps catering to opinion and emotion, multiple began framing out the new country. Because each of the
states reformed their insanity defense standards in the original thirteen colonies was unique, with everything
wake of Hinckley’s acquittal to be more stringent on from culture to natural resources varying widely, the
defendants, with some states even going so far as to nation’s early leaders examined the existing Common
abolish the defense altogether. Law and adapted it to fit the specific legal needs of
the new states.7 At the state level, this combination of
Some opposed to Hinckley’s acquittal took solace British influence and case-by-case adaptation paved the
in the belief that he likely would be hospitalized for path for the modern-day insanity defense.
insanity for the rest of his life. However, in 2016,
the federal judge assigned to Hinckley’s case deemed In order for someone to be found guilty of a crime, it has
him to no longer be a danger to himself or society to be proven (a) that the defendant has committed the
and released him from St. Elizabeth’s Hospital in criminal act (the actus reus) and (b) that the defendant
the District of Columbia.5 Issues that arose in 1981 possessed the appropriate mens rea, meaning that he
became relevant once more, and they remain largely or she had criminal intent or a “guilty mind.” If the
unresolved to this day: Will the emotions associated defendant did not intend to commit a crime or did not
with Hinckley’s release cause the public to again rely appreciate the wrongfulness of his or her actions, then
on misinformation to process and voice their feelings mens rea cannot be proven and the defendant cannot
about the special defense? Will history repeat itself, be convicted. While insanity defense standards and
with Hinckley’s release sparking new rounds of national protocols differ between states in the U.S., the general,
insanity defense reform that are at least in part driven shared idea is that the defense exists as a guilt-excusing
by this misinformation? To adequately address these condition that accommodates such defendants who, at
questions, a working knowledge of the insanity defense the time of their crime, did not possess the appropriate
and its history is required. Firstly, a basic understanding rationale to be deterred from wrongdoing. In other
of the defense would enable us to determine exactly words, if a defendant is deemed legally insane, then
what about the public’s opinion is misinformed. With by definition, he or she could not have expressed the
this basic understanding in place, we could then more level of intent—the mens rea—necessary to warrant a
productively evaluate data on this public opinion and guilty verdict.
identify where the misinformation is coming from, an
outcome that would be important for two reasons: so The notion of legal insanity is central to—and a good
adequate solutions could be proposed or, alternately, starting point for—this paper’s argument, since much

Journal on Constitutional Democracy 63

of the public’s misinformation about the insanity "Daniel McNaughton, Insane Murderer" (c. 1843)
defense stems from an inability to distinguish between
“insanity” as a fictitious medical term and the relevant The earliest standard for insanity, the M’Naghten Rule,
judicial concept: legal insanity. None of the five editions relies solely on the cognitive prong, judging insanity by
of the Diagnostic and Statistical Manual of Mental defendants’ ability or inability to understand the crime
Disorders (DSM), an exhaustive list of every psychiatric they committed or to distinguish right from wrong.10
condition, includes a definition for insanity. In terms of The standard came from policy change after the
the legal implications of this fact, because it is not an acquittal of a British man named Daniel M’Naghten,
acknowledged and defined medical condition, insanity and it was the first official standard for insanity to be
cannot exist as a medical diagnosis (simply put, it does utilized in the United States.11 The M’Naghten Rule
not refer to a singular mental illness). Going one step was, in fact, the most widely used standard in U.S.
further, because there is no diagnosable condition, there courts from the mid 1800s through 1963, but it fell
is no medical standard of insanity to which courts can out of favor as the sole means of legally determining
be held accountable. Lacking a concrete medical frame insanity after critics successfully (and rightfully) argued
of reference, insanity only has a legal definition, which that it was missing a volitional prong.12
encapsulates a large breadth of psychiatric conditions
and, within the criminal justice system, refers only to The Irresistible Impulse Test was created as the second
“a state of mental illness where a person is unable to standard of insanity, with the express purpose of
determine between right and wrong and as a result will addressing the volitional prong criticism of M’Naghten.
commit unlawful acts.”8 Bound strictly to whether or Established in English law in 1960 and incorporated
not a defendant has met the jurisdiction’s standards for by some U.S. states shortly thereafter, the Irresistible
insanity and therefore has a guilt-reducing condition, Impulse Test judges a defendant’s ability or inability
legal insanity can thus only be determined by a judge or to control his/her impulses due to mental disease and
jury. And while some standards for insanity do require how this factors into the commission of a criminal
a psychiatric diagnosis of a mental disease or disorder, act.1314 It is important to note that this standard is
a medical professional is not qualified to act alone in purely volitional and has never been used on its own
assigning legal insanity within a courtroom. in the U.S. but, instead, only as a supplement to the
M’Naghten Rule.
As for post-trial procedure, which will be explored in
more detail later in this article, in the majority of cases, The third standard for insanity emerged from a 1954
a successful plea of insanity leads to commitment in a U.S. Court of Appeals case, Durham v. United States.
psychiatric facility. The only exception to psychiatric In the decision, the judge stated that “the question…
commitment is when a defendant can prove that he or
she was insane at the time of the crime but is no longer
insane and does not pose a threat to society. Successfully
proving this could result in immediate release, but it is
rare. Only 15% of those who successfully plea insane
are released without psychiatric commitment.9

There are four variations to the insanity defense, and the
main point of distinction between them is the presence,
or absence, of the cognitive and volitional prongs of
insanity. The cognitive prong judges individuals’ ability
to distinguish right from wrong and to appreciate the
wrongfulness of their actions. The volitional prong, on
the other hand, judges individuals’ capacity to conform
behavior to law by measuring their ability to resist
extreme urges to commit the crimes in question.

64 Kinder Institute

[should be] whether the accused acted because of "Portrait of Maj. Gen. Daniel E. Sickles, officer of the Federal
a mental disorder, and not whether he displayed Army" (ca. 1860-1865)
particular symptoms which medical science has
long recognized do not necessarily, or even typically, of the subject matter affects public perception of
accompany even the most serious mental disorder.”15 the insanity defense. Considering that there has
Purposely written to be vague, so that it could be been much dissent within federal courts as to which
inclusive of any psychiatric diagnosis, the Durham Rule standard is best, it is obvious that the four standards are
makes no mention of the cognitive or the volitional not created equal. Given that such debate happens at
prongs and only requires proof that a diagnosed mental the level of federal courts, it likewise makes exceeding
disorder led to a criminal act to determine insanity. As intuitive sense that it is unclear to non-specialists
a result, the Durham Rule relies almost exclusively on which of these standards most accurately identifies
testimony by medical professionals, and because of legal insanity and why. Due to its complicated nature,
this confounding of psychiatric and legal notions of it is possible, then, that public disapproval of the
insanity, it was abandoned as an acceptable standard at insanity defense as a whole is actually just disapproval
the federal level in 1972, leaving New Hampshire as of a particular standard, which may or may not apply to
the only state that still utilizes the defense.16 the more immediate source of the public’s discontent:
a particular case or ruling. Until the public is familiar
Created by the American Law Institute in 1962, the with all four standards and can accurately identify which
fourth and final standard, the Model Penal Code one is being used in the case they are criticizing—and,
Test, arose in response to the absence of a standard moreover, cogently discuss the implications of it being
that explicitly and effectively incorporated both used—we cannot know whether or not standardization
the cognitive and volitional prongs, and it marked of how to legally determine insanity would alleviate
an attempt on the part of the legal community to public disapproval of the defense. As it stands now, the
assist legislatures in improving penal law through data we have only identifies public opinion, not public
modernization and standardization.17 The Model knowledge, of the insanity defense.
Penal Code Test says that defendants are insane if a
diagnosed mental defect rendered them unable either As proof of this dearth of reliable public knowledge,
to understand the criminality of their act (cognitive) shortly after Hinckley’s acquittal on the basis of
or to act in a way that is within the confines of the insanity, the University of Delaware conducted a
law (volitional).18 This standard is similar to Durham study on perceptions of the insanity defense, which
in that it requires a medical diagnosis. However, its showed that almost half of the respondents thought
incorporation of the cognitive and volitional prongs that the defense should be abolished at a national
shifts the power from psychiatrists to juries. Under
the Model Penal Code Test, only a jury can determine
whether defendants were impaired by mental defect to
the point that they could not understand the criminality
of their actions or could not control their behavior to
reflect knowledge of the law. Combining aspects of all
three prior standards, it is the most flexible of the four
outlined here, and it was used at the federal level until
the unpopular acquittal of John Hinckley Jr. Soon after,
the federal government, along with multiple states,
reverted to the M’Naghten Rule.19

On the most basic level, examining these standards is
important both because it reveals the degree to which
legal insanity is a difficult concept and, in this, provides
a starting point for inquiring into how the complexity

Journal on Constitutional Democracy 65

level and that over 94% of respondents thought that Growing up as
the defense required a lot of reform.20 Mathematically the youngest of
speaking, these statistics speak to the confusion that three children,
defines public opinion of the insanity defense. If 94% Hinckley was
of survey-takers said that the insanity defense needed a good student
reform, they were fundamentally implying that it and excelled
should still exist as a provision. However, the fact that in basketball
nearly half of survey-takers also said that the insanity and football. In
defense should be abolished means that a significant high school, his
number of respondents un-reconcilably believed both interests shifted
that the insanity defense needed to be reformed and to music and
that it needed to be done away with. This contradiction he would spend
exemplifies a hypothesis drawn earlier: the people are most of his days
not unhappy with the insanity defense as a provision; playing his guitar in his room. Hinckley originally
instead, they are unhappy with particular legal attended Texas Tech University, but he dropped
applications of the provision and, moreover, lack the out of college in 1976 to move to California
understanding and vocabulary necessary to express this and pursue his passion for music. During his
nuanced opinion. This conclusion is further supported institutionalization, Hinckley had such good
by statistics showing that 76.5% of the sample claimed behavior that he was given a clerical job in the
that the insanity defense is sometimes justified, while hospital that allowed him to leave his assigned
63.6% deemed it a necessary provision in the legal living space. He even had a girlfriend for 22 years
system (both of which, again, wildly contradict popular of his confinement, a former patient named Leslie
receptiveness to abolishing the insanity defense).21 deVeau (pictured with Hinckley above).

The general level of confusion about the insanity from Killing Reagan: The Violent Assassination
defense that these conflicting responses demonstrate that Changed a Presidency, by Bill O’Reilly and
becomes even more problematic if we examine how Martin Dugard
answers to more detailed questions reveal not only
a lack of knowledge but also a significant degree of “John Warnock Hinckley is a cold-blooded
misinformation. For example, over 78% of respondents killer, a man who has trained himself in the art
to the University of Delaware survey said that the of murder.”
insanity defense sends a message to criminals that
they can get away with crime, with 76.9% believing from “Setting John Hinckley Free Is a Dangerous
that the insanity defense negatively impacts (i.e., Decision,” by Gregg Jarrett (Fox News Opinion
increases) the crime rate.22 Placed in conversation Piece)
with the statistics examined in the prior paragraph,
the rift between reality and perception grows even “[In his time at St. Elizabeth’s,] he exchanged
bigger. When taken together, this data suggests that letters with serial killer Ted Bundy. He sought
the early 1980s American public rightly deemed the the address of mass murderer, Chales Manson.
insanity defense a necessary provision that protects He continued his obsession over actress Jodi
vulnerable defendants, while somehow simultaneously Foster, smuggling her photos and other materials
supporting the incorrect assumption that it was highly into his room…he could turn violent and deadly
and dangerously exploitable. in an instant.”

66 Kinder Institute

“Is not this insanity plea becoming rather acquitted.26 The reality is that 0.9% of criminal trial
common? Is it not so common that the defendants attempt to plea insane, with only 26% of
these cases actually resulting in an acquittal.27 For
reader confidently expects to see it offered the record, this amounts to 0.234% of criminal trials
in every criminal case that comes before ending in acquittal based on insanity (according to
the courts? Really, what we want now, is public opinion, this number would be 16.28% of
not laws against crime, but a law against criminal trials). In addition, the study revealed that the
public believed that over 25% of defendants acquitted
insanity.” ~ Mark Twain23 on the basis of insanity are released back into society
with no form of rehabilitation, when the actual statistic
The study also reveals a troublesome public conflation is only 15% of defendants.28
of legal and mental insanity, with the data showing
that 91.2% of respondents thought that a psychiatrist It is obvious from these studies that the American
should testify in regards to a defendant’s mental public harbored (and likely still harbors) gross
condition.24 It is important to mention again that there misunderstandings about the insanity defense’s
is no psychiatric diagnosis for insanity and that it has place and usage in the criminal justice system, and
no medical definition. It is common in insanity defense it appears that these misunderstandings have at least
cases to ask a psychiatrist to confirm a psychiatric some correlation with the Hinckley acquittal in
diagnosis of some sort, and it is certainly true that these the 1980s. From here, we can begin to draw similar
kinds of diagnoses can play a part in trials; but nowhere conclusions which suggest that the rise of these
in the definition of legal insanity is medical testimony misunderstandings—and particularly the rise of those
alone presented as evidence enough to conclusively that miscast the insanity defense as a loophole and
establish whether the defendant knew what he or she thus a public threat—correlates with post-Hinckley
did was wrong or was unable to conform his or her legislative reforms that seemed to cater to public
actions to the law. In other words, a psychiatrist is disapproval by making insanity pleas more difficult
permitted to testify on a defendant’s mental state, of (and in some cases impossible) to carry out. During
course, but it is ultimately the jury who decides what to the development of Hinckley’s trial, for example, the
do with this information when determining whether or Idaho state legislature moved to completely abolish
not to acquit on the basis of insanity. their insanity defense and replace it with a guilty but
mentally ill verdict.29 Receiving a guilty but mentally
While a 1994 study from the American Psychology- ill verdict means that the defendant has been denied
Law Society’s (APLS) Journal of Law and Human a not guilty by reason of insanity plea (or not offered
Behavior suggested that there was not a large shift in an insanity defense, depending on the state), but that
popular understanding of or opinions about the insanity sentencing should still reflect the defendant’s mental
defense in the decade or so after the Hinckley acquittal, illness. Both a successful insanity defense plea and
one alarming and telling data trend from the Delaware a guilty but mentally ill verdict lead to psychiatric
research that the APLS study expanded on concerned treatment. However, when a defendant is committed
perception of the insanity defense as a loophole for under a plea of insanity, he or she will be released when
criminals seeking to avoid punishment.25 Not only did a court or medical professional deems that the patient
the study reaffirm the public’s (incorrect) belief that is of sound mind. With a guilty but mentally ill verdict,
the defense is easily exploited; it also suggested that defendants that complete psychiatric treatment are
the public believed that, as a result of its being easily then moved to a prison to complete the remainder of
exploited, the defense was used much more frequently their sentences.30 While some states had adopted the
than it actually is. Specifically, survey-takers expressed guilty but mentally ill option before the Hinckley trial,
a belief that 37% of criminal defendants attempt to his acquittal gave this verdict a great deal of momentum,
plea insane and that 44% of these criminals are actually with some states racing to use it as a supplement to
their existing insanity defense and others adopting it to
replace the insanity defense altogether.31

Journal on Constitutional Democracy 67

"The Center Building at St. Elizabeths" (2006) held conflicting ideas that define the public’s (mis)
understanding of the insanity defense. By professional
It is vital to this (and any) discussion of the insanity standards, journalists are ethically obliged to pursue
defense to dispel states’ false argument that a guilty but facts in a way that properly educates Americans on the
mentally ill verdict is equivalent to an insanity defense issues being reported (and, it should be added, they
(and with it, their implied argument that insane often do fulfill this ethical imperative). However, media
defendants should be held legally responsible for their companies’ best interests (commonly indistinguishable
crimes via a guilty verdict). The guilty but mentally ill from their most profitable courses of action) often
verdict blatantly ignores (a) that defendants who are invite them to sensationalize reporting in order to
legally insane did not have the appropriate mens rea for increase viewership and ratings. Trials involving the
committing a crime and (b) that punishing them would insanity defense, while very rare, typically are subject
therefore be unjustified, since punishment is only to inflated publicity and heightened sensationalism
warranted when both the actus reus and the mens rea are because they are packed with the kinds of captivating,
present. This is problematic for a number of reasons sometimes lurid storylines that the public enjoys
but most of all because, in the four states that have consuming. The fact that insanity defense trials are so
abolished their insanity defense, defendants are being highly publicized might account for why Americans
deprived the right to choose a plea that recognizes have been led to believe that insanity defense trials
their innocence and whose consequences are reflective occur more frequently than they actually do, a form
of their conduct. Specifically, despite not being morally of misinformation that is compounded by the equally
or legally accountable for the crime due to a lack of perilous tendency to sensationalize the content of
mens rea, legally insane defendants are being put in a these trials.
position where they have no alternative but to choose
a plea—guilty but mentally ill— that forces them Making matters worse, there are fairly easy steps the
to serve jail time after psychiatric rehabilitation for media could, but usually does not, take that would
crimes they were not responsible for in the first place. improve their coverage of cases involving the insanity
It is understandable that the public wants individuals defense in a way that might lead to more reliable
who have committed crimes to receive punishment, publicly accessible information on the topic (and, in
but the public must understand that those who plea turn, better public understanding of the topic). For
insane are not in the same category as those criminals example, more empirical data on the insanity defense
whose action society wants retribution for. could be used in coverage of the cases; it would be
incredibly beneficial to the public’s understanding
In terms of overall causation, the media certainly plays a of the defense if a story simply mentioned that
role in cultivating the confusion and the simultaneously the defense is invoked in less than one percent of
criminal trials and that only a fraction of these pleas
are successful. Without precluding raw enjoyment of
the story, these numbers would allow viewers not only
to have a clear idea of the infrequency of the insanity
defense but also to apply this new information to other
misperceptions they might foster (an improvement, it
should be noted, that might also have a positive effect
on legislation, since it is often shaped at least in part by
public knowledge of certain issues). Also, it would be
beneficial for legal experts on the insanity defense to be
included in media stories so that the public could gain a
better grasp of the justification for a given defense and
a better understanding of the complex legal proceedings
related to it. Of course, there is always the possibility

68 Kinder Institute

that the public might choose to ignore this information In summary, the insanity defense is a provision that is
because it does not interest them, but this concern is essential to America’s justice system. Cases like John
not unique to insanity defense coverage but instead Hinckley Jr.’s have been sensationalized in a way that
generally indicative of how balancing responsible and omits key information about the defense, causing the
compelling reporting is one of the largest hurdles the public to question its philosophical, legal, and moral
journalism industry faces. What the public chooses to necessity. Unfortunately, these misperceptions seem
retain from responsible reporting is just something that to have also influenced legislators, who, in acting on
the media does not and will never have full control over. behalf of a misinformed and disapproving public, have
made the insanity defense unavailable to defendants in
four states and more difficult to utilize in many others.
While constituents in these states may think that
loopholes in the law are being closed and that criminals
are being given just retribution, legislation like this in
reality is setting a dangerous precedent. Abolishing
the insanity defense opens Pandora’s box within the
legal system, and reversing the problem can begin
with something as simple as encouraging responsible
reporting and releasing statements on the defense that
are easily reportable.

"Voici une photo de la criminalité de la police utilisée pour décrire 1Howell Raines. “Reagan wounded in chest by
gunman; Outlook ‘good’after 2 hour surgery; Aide and
le tueur en série Ed Gein" (2016) 2 guards shot.” The New York Times (1981): A1.

All blame should not, however, fall on the media. In 2Stuart Taylor Jr. “HINCKLEY IS CLEARED BUT
terms of highly publicized trials like Hinckley’s, a move HELD INSANE IN REAGAN ATTACK.” The New
that could be taken by the justice system itself would York Times (1982): A1.
be to issue a post-trial statement that briefly details the
purpose and the usage of the insanity defense and that 3The Associated Press. “HINCKLEY ACQUITTAL
could serve as an alternative or supplement to the long BRINGS MOVES TO CHANGE INSANITY
opinions issued by judges that might not be accessible DEFENSE.” The New York Times (1982): A1.
to the general public. This new statement could be
written by the judge, by jurors, by an institute like the 4Howell Raines. “Reagan wounded in chest by
American Bar Association, or by some combination of gunman; Outlook ‘good’after 2 hour surgery; Aide and
the three, and it could follow the model of government 2 guards shot.” The New York Times (1981): A1.
announcements that fashion certain key points into
“soundbites.” By making the statement more concise 5Kiernan, Laura, Eric Pianin, Ed Bruske, Nancy
and direct, the media would have an easier time crafting Lewis, Michel Marriott, and Michel McQu.HERE
a story from it and therefore may be more likely to “Hinckley Found Not Guilty, Insane.” The Washington
utilize it. By using an easily reportable format, judges Post (1982).
would thus be maximizing not only the likelihood of
media coverage but also the likelihood of responsible 6Lambarde, William. Eirenarcha. Or Of The Office Of
coverage that contains facts which do justice to and The Justices Of Peace In Foure Books. 1581.
increase public knowledge of the matter at hand.
7“The Common Law and Civil Law Traditions.” The
Robbins Collection. University of California at Berkeley
School of Law. https://www.law.berkeley.edu/library/
robbins/CommonLawCivilLawTraditions.html

Journal on Constitutional Democracy 69

8“Criminal Insanity.” The Law Dictionary. http:// the Insanity Defense.” UMKC School of Law. http://
thelawdictionary.org/criminal-insanity/ law2.umkc.edu/faculty/projects/ftrials/hinckley/
hinckleyinsanity.htm
9Silver, Eric, Carmen Crincione, and Henry
Steadman. “Demythologizing Inaccurate Perceptions 19“The ‘Model Penal Code’ Test for Legal
of the Insanity Defense.” Law and Human Behavior Insanity.” Findlaw. http://criminal.findlaw.com/
1994: 67. criminal-procedure/the-model-penal-code-test-for-
legal-insanity.html
10Collins, Kimberly, Gabe Heinkebein, and Staci
Schorgl. “The John Hinckley Trail & Its Effects On 20Hans, Valerie P. “An analysis of public attitudes
the Insanity Defense.” UMKC School of Law. http:// toward the insanity defense.” Criminology 24.2 1986:
law2.umkc.edu/faculty/projects/ftrials/hinckley/ 400.
hinckleyinsanity.htm
21Hans, Valerie P. “An analysis of public attitudes
11Collins, Kimberly, Gabe Heinkebein, and Staci toward the insanity defense.” Criminology 24.2 1986:
Schorgl. “The John Hinckley Trail & Its Effects On 400.
the Insanity Defense.” UMKC School of Law. http://
law2.umkc.edu/faculty/projects/ftrials/hinckley/ 22Hans, Valerie P. “An analysis of public attitudes
hinckleyinsanity.htm toward the insanity defense.” Criminology 24.2 1986:
403.
12Collins, Kimberly, Gabe Heinkebein, and Staci
Schorgl. “The John Hinckley Trail & Its Effects On 23Clemens, Samuel. “A New Crime: Legislation
the Insanity Defense.” UMKC School of Law. http:// Needed.” The Lectric Law Library. 1903. http://www.
law2.umkc.edu/faculty/projects/ftrials/hinckley/ lectlaw.com/files/cur04.htm
hinckleyinsanity.htm
24Hans, Valerie P. “An analysis of public attitudes
13Collins, Kimberly, Gabe Heinkebein, and Staci toward the insanity defense.” Criminology 24.2 1986:
Schorgl. “The John Hinckley Trail & Its Effects On 403.
the Insanity Defense.” UMKC School of Law. http://
law2.umkc.edu/faculty/projects/ftrials/hinckley/ 25Silver, Eric, Carmen Crincione, and Henry
hinckleyinsanity.htm Steadman. “Demythologizing Inaccurate Perceptions
of the Insanity Defense.” Law and Human Behavior
14Collins, Kimberly, Gabe Heinkebein, and Staci 1994: 67.
Schorgl. “The John Hinckley Trail & Its Effects On
the Insanity Defense.” UMKC School of Law. http:// 26Silver, Eric, Carmen Crincione, and Henry
law2.umkc.edu/faculty/projects/ftrials/hinckley/ Steadman. “Demythologizing Inaccurate Perceptions
hinckleyinsanity.htm of the Insanity Defense.” Law and Human Behavior
1994: 67.
15Wechsler, Herbert. “The Criteria of Criminal
Responsibility.” The University of Chicago Law 27Silver, Eric, Carmen Crincione, and Henry
Review 22.2 (1955): 373. Steadman. “Demythologizing Inaccurate Perceptions
of the Insanity Defense.” Law and Human Behavior
16Collins, Kimberly, Gabe Heinkebein, and Staci 1994: 67.
Schorgl. “The John Hinckley Trail & Its Effects On
the Insanity Defense.” UMKC School of Law. http:// 28Silver, Eric, Carmen Crincione, and Henry
law2.umkc.edu/faculty/projects/ftrials/hinckley/ Steadman. “Demythologizing Inaccurate Perceptions
hinckleyinsanity.htm of the Insanity Defense.” Law and Human Behavior
1994: 67.
17Robinson, Paul H., and Markus D. Dubber. “The
American Model Penal Code: A Brief Overview.” New 29“Idaho Moves to Bar Insanity as Legal Defense.”
Criminal Law Review: An International and New York Times (1982): INCLUDE WEBSITE.
Interdisciplinary Journal, Vol. 10, No. 3, 2007: 326.
30“Insanity Defense FAQs.” Frontline. PBS. Web.
18Collins, Kimberly, Gabe Heinkebein, and Staci
Schorgl. “The John Hinckley Trail & Its Effects On

70 Kinder Institute

Jimmyack205, “Catfish, Billy, and Brad Gulden” (1979)

The Sherman Act and Baseball’s
Antitrust Exemption

by Thomas Groeller

Journal on Constitutional Democracy 71

“Dear Mr. Kuhn, After twelve years in were necessary for getting food and supplies to small
the major leagues, I do not feel that I am frontier communities in the mid-to-late 1800s, these
a piece of property to be bought and sold communities were at the railroad company’s mercy
in terms of pricing. If the railroads wanted to raise

irrespective of my wishes.” ~ Curt Flood shipping prices on a town before competitors made it
into the area, the town would have to accept the hike

or risk civic collapse. An attempt to alleviate some of

In 1890, Congress passed America’s first significant these concerns, the Sherman Act was the first major
piece of antitrust legislation with the Sherman piece of legislation intended to provide local business
Antitrust Act.1 The Act’s creation was a direct response and the general public with some protection against
to the changing economic landscape in the United the predatory power of the monopoly.

States at the time.2 The post-Civil War era was full of Over 60 years later, the Sherman Act’s provisions

technological innovations, some of which connected intersected with America’s national pastime, baseball.

different regions and markets more than ever before. George Toolson, a pitcher for the Newark Bears (the

In particular, the expansion of the railroad industry Triple-A affiliate of the New York Yankees), wished

allowed cross-country shipping to occur at a fraction to seek employment elsewhere, because he believed

of the former cost, which in turn allowed businesses his skills exceeded his minor league status.4 Under

to expand their operations across state lines in an the rules of Major League Baseball (MLB), Yankees

attempt to increase profit and market share. With the ownership did not have to—and ultimately did

decreased cost of shipping, a truly national corporation not—grant Toolson the contract release he desired,

was feasible for the first time in American history. And a business decision that effectively ended his major

while this was clearly desirable to large business owners, league career.5 In most job markets, this obviously

the negatives effects that such corporations would would not have been the outcome, as Toolson would

have on local businesses have simply switched to

and consumers were a different employer. In

easily identifiable (and professional baseball,

readily identified). however, MLB owned

Local businesses rightly almost 100% of the

worried that increased labor market, leaving

production would him nowhere else

lower the average to go for work. The

cost of production story of Toolson

for a good, allowing raises the obvious

a small operation to question of how and

be undercut for its why, in the presence

customers. Additionally, of the Sherman Act

the newfound and other antitrust

potential for interstate legislation, MLB was

commerce stoked fear allowed to accrue

of monopolies amongst "1885-86 Cuban Giants" (1885) such market share?

consumers, who were all Ironically, the answer

too aware that once a business owned the entire market is in part because the Supreme Court granted Major

for a good (a true monopoly), it could begin raising League Baseball an exemption from the Sherman Act

prices well above production cost.3 For example, the in 1922, which ensured that the league could not be

early railroad companies in the western United States broken up by any federal antitrust legislation.6 This

acted much like true monopolies. Because the railroads paper will use this antitrust exemption to consider

72 Kinder Institute

how the language of the Sherman Antitrust Act has can exist within a single marketplace for a given good.
affected Court interpretation of monopolies over time, Having a working knowledge of what these terms mean
with a particular focus on answering the questions does not, however, solve the real problem introduced
of whether the Sherman Act’s language allowed the by the Sherman Act’s vagueness. Because the Act does
MLB exemption to occur in the first place and if this not give any specific definitions, its language can be
exemption is due for an update. manipulated to fit a variety of interpretations when
actually applied in a court of law, giving a corporation
Making sense of whether or not the exemption like MLB, which provides a unique service, an
granted to Major League Baseball effectively supports opportunity to benefit from inconsistent rulings and,
a monopolistic enterprise requires first looking at the as history shows, a potentially problematic pathway to
language with which the Sherman Antitrust Act defines becoming exempt from federal regulations altogether.
its purpose. The Act is broken into eight sections, but
only the first two (excerpted below) discuss the anti- It would be reasonable to wonder whether the issue
competitive corporate behaviors that are prohibited of the legislation’s vague language could perhaps be
and subject to punishment: resolved if its background were better understood.
While there is no critical consensus regarding the
Every contract, combination in the form of trust original motivation for passing the Sherman Act, two
or other-wise, or conspiracy, in restraint of trade previously mentioned and frequently cited hypotheses
or commerce among the several States, or with are: (a) that it was passed to protect the American
foreign nations, is hereby declared to be illegal.7 people from monopolistic price abuse; and (b) that it
was passed to protect local businesses from the newly
Every person who shall monopolize, or attempt emerging trusts and nationalized markets.1011 The
to monopolize, or combine or conspire with any former hypothesis commonly holds that the Act was
other person or persons, to monopolize any part of intended to maximize citizen welfare in cases when
the trade or commerce among the several States, corporations obtained a high market share across
or with foreign nations, shall be deemed guilty.8 state boundaries.12 While the decreased production
costs that occur when a monopoly exists are initially
Though repeated multiple times, as if the very act of good news for costumers, if enough local businesses
repetition lends it clarity, the word “monopolize” is close their doors and a larger company comes close to
never explicitly defined in the legislation. Similarly, owning an entire market, the general public is usually
the phrases “restraint of trade” and “among the several taken advantage of via increased prices and decreased
States” appear in two of the first three sections but output. The latter hypothesis holds that technological
likewise do not have clearly explicated meanings. changes in the marketplace were the main reason
To end the Act, Section Eight provides the façade of for the Sherman Act’s passage.13 As the railroad
clarification by noting that “person” also includes system grew in America in the late 1800s, so did the
corporations and associations in its definition.9 So in opportunity for monopolization. When the railroads
summary, the Act tells us that persons, corporations, cut cargo costs, local businesses found themselves
and associations are subject to fines and punishment competing with larger national corporations that could
if they “restrain trade” or “attempt to monopolize now afford to move their products around the country.
among the several States.” While the Act might be In general, when a company produces more of a given
unclear in establishing their meaning, we do, of course, good than other companies do, that company can
have conventional understanding of and practical usually sell this good for less, a phenomenon known as
definitions for these key terms. Restraint of trade, for economies of scale. Historically speaking, the pressure
example, is usually said to occur when a company buys caused by economies of scale led small business
its competition or moves into an area where it can owners to demand some protection from companies
undercut existing businesses by pricing an item lower that utilized mass production and mass employment
than previously possible. Monopolizing usually means to maintain lower prices. In addition to owners, the
to restrain trade so much so that no other businesses

Journal on Constitutional Democracy 73

employees of these businesses also feared a monopoly in Chief Justice Melville Fuller’s majority opinion, “the

gaining control over markets, because with a monopoly fact that an article is manufactured for export to another

present, practitioners of a particular trade would only State does not, of itself, make it an article of interstate

have one place to work, which could potentially lead commerce.”16 Since all of the manufacturing took place

to a lack of bargaining power among laborers and a in Philadelphia, the Court decided that the acquisition

subsequent stagnation of wages and/or an elimination was a purely intrastate matter and thus not subject to

of benefits. the Sherman Act, a ruling that initially narrowed what

In general terms, the lack of consensus regarding the it meant to be a monopoly by deciding that large-
motivations behind the Sherman Act does nothing to scale manufacturing, if localized, did not qualify as
help clear up any of the interstate commerce.

language issues raised Northern Securities Co.

earlier. As for the larger v. United States (1905),

question underlying another early Sherman

this article, since Act case, went the

both interpretations opposite direction,

revolve around an interpreting “restraint of

understanding of trade” in a manner that

the Sherman Act as gave the government

designed to prevent more latitude in trust

large corporations from breaking.17 The case

stifling competition, and arose as a result of

since MLB is certainly a Northern Securities

large corporation, the Company, a holding

question of why it is Rdikeman, “V.A. Memorial Stadium, Home of the Chillicothe Paints company, attempting
Frontier League Baseball Team” (2008) to combine three major
not subject to antitrust western railroads into
regulation remains.

To resolve these issues of language and interpretation, one of the largest railroad companies in the United
some of the early Supreme Court cases involving States.18 When the purchase of the three railroads
the Sherman Act need to be analyzed. If, in the was announced, there was a large public outcry, and
course of this analysis, a case-to-case consistency President Theodore Roosevelt asked the Department
of interpretation on the Court’s part emerges, then of Justice to pursue an antitrust complaint. Justice John
MLB’s exemption fails to make sense. However, if the Marshall Harlan II gave the Court’s majority opinion
Court’s interpretation of the Sherman Act’s language in the case, ruling against Northern Securities Co. by
creates further uncertaintanty of definition, MLB noting that “all the stock it held or acquired in the
may have a basis for its exemption today. The case of constituent companies was acquired and held to be used
United States v. E. C. Knight Co. (1895) is where the in suppressing competition between those companies.
Court’s interpretation of the Sherman Act first began It came into existence only for that purpose.”19 Harlan’s
taking shape.14 During the late nineteenth century, the reasoning was that the three merging companies were
American Sugar Refining Company had purchased each other’s main competitors, and in banding together,
several other refineries located in Philadelphia, they effectively became free of competition and thus
including E. C. Knight Company.15 President Grover capable of lowering prices until smaller companies
Cleveland called for the government to sue the Knight were driven out of business and an absolute monopoly
Company under the interstate commerce provisions of was established. In contrast to E. C. Knight, this
the Sherman Act, with the Supreme Court ultimately decision expanded the scope of interstate commerce
deciding that the acquisition of E. C. Knight Co. was by broadly defining “restraint of trade” as any action
not in violation of antirust legislation because, as stated intended to drive out competitors through company

74 Kinder Institute

mergers/buyouts, giving the Sherman Act a much new meaning by “stream of commerce,” a clarification
larger jurisdiction going forward. that expanded the scope of the Act, enabling it to now
be applied to intrastate actions if their intended effect
A third case instrumental in bringing greater clarity to was to negatively impact interstate commerce. While
the language of the Sherman Act was Swift & Co. v. these cases did create a path toward more consistent
United States (1905).20 Swift & Company, along with interpretation of the Sherman Act, they somewhat
five other competitors, joined together to create the ironically also created a clear path around it. Specifically,
National Packing Company in 1903.21 The larger the new stream of commerce designation opened up
corporation then went on to fix meat prices across all the possibility that a company might try to avoid being
six constituents and get preferential treatment from subsumed in a chain of production by narrowly and
railroad companies. The company’s argument for the falsely defining its product or production process to
legality of its actions was that all cattle purchases and not include all of its necessary aspects, making it seem
packaging were done at a state level, thereby exempting localized in its effect on commerce and thus beyond
it from regulation under the Sherman Act, per the the scope of antitrust law. On one hand, this potential
precedent set in E. C. Knight. Justice Harlan gave the loophole speaks to the simple fact that production,
unanimous opinion against the beef trust, arguing that and all of its many particulars and nuances, can be
“although the combination alleged embraces restraint tough to define, especially when dealing with a unique
and monopoly of trade within a single State, its effect good or service. In terms of this particular article's
upon commerce among the States is not accidental, query, exploiting this complexity for the purpose of
secondary, remote or merely probable.”22 With this, circumventing antitrust law is a key aspect in Federal
the Court established an incredibly important new Baseball Club v. National League (1922), the Supreme
precedent: that intrastate business can be—and, in this Court case that granted baseball its exemption from
case, absolutely was—subject to Sherman Act regulation the Sherman Act.
if it is part of a larger “stream of commerce,” the goal of
which is to intentionally restrain competitive interstate "Babe Ruth, Baltimore Terrapins” (1914)
business. A “stream of commerce,” the Court further The Federal League (FL) was a “Third Major League,”
determined, is defined as the entire production process developed in 1913 to compete with the National and
for a good, meaning that an intrastate action can still American Leagues of MLB.23 The FL had eight teams
be regulated if it is a stop along a larger, interstate
assembly line of actions. Much like the conditions that
led to the Northern Securities decision, in Swift & Co.,
fixed prices enabled the larger company to drive out
local businesses, and since several local entities across
multiple states were harmed in the process, an intent to
affect interstate commerce was not only implicit in the
National Packing Company’s creation but, as the Court
was careful to point out, was also what distinguished
its actions from those of the American Sugar Refining
Company in the E.C. Knight decision.

These three cases certainly helped to disambiguate
the Sherman Act’s language and to guide applications
of the legislation going forward by more precisely
defining its key terms. For example, “restrained
trade” (the Act’s original language) came to mean
“restrained competition” or actions/contracts that
manipulated trade to drive out competitors. “Among
the several states” (the original language) was given

Journal on Constitutional Democracy 75

and played three full seasons before business was possibly apply. And by extension of Holmes’ logic, the
shuttered in 1915. Initially, the FL was moderately entire industry of baseball—merely a series of isolated,
successful in drawing fans, because its teams were local, on-the-field contests—is not subject to federal
able to recruit some top talent away from MLB. To antitrust legislation. To see why the Court unanimously
most outsiders, the FL seemed to be doing well, but ruled this way, we must return to the previous Sherman
in reality, it began failing almost as soon as it started Act cases and consider if the ruling in favor of MLB was
to grow. To attract MLB players to the upstart league, indeed in line with the precedents they set.
FL teams had to pay salaries well above market wage.
Because of this, many teams reported big losses right Under the framework outlined earlier in this article,
out of the gate, and the FL quickly folded due to it is clear that the driving force of logic behind the
financial issues, after which MLB offered to buy out Court’s decision in Federal Baseball Club v. National
the FL teams. In addition to receiving cash buyouts, League—that baseball is a purely intrastate game—is
the Chicago Whalers’ and the St. Louis Terriers’ out-of-line with prior Sherman Act rulings in general,
owners were allowed to purchase MLB teams (the and specifically out-of-line with the ruling in Swift &
Chicago Cubs and the St. Louis Browns, respectively). Co., in which the “stream of commerce” argument was
Of the FL Teams, only the Baltimore Terrapins did not established. By narrowly defining baseball as a form of
participate in the buyouts. Terrapins ownership wanted intrastate commerce, so that E. C. Knight rather than
the same opportunity to purchase an MLB team Swift & Co. could be used as a precedent, the Court
that the Whalers’ and Terriers’ owners had, but they blatantly ignores every aspect of the production chain
were not afforded it on the grounds that “Baltimore that takes place before, and is instrumental to the
is a minor league town, and not a hell of a good one success of, the final, on-the-field product. Precluding
at that.”24 The owners of the Terrapins then leveled any commerce stream discussion from factoring into
an antitrust suit against MLB, claiming it unlawfully the decision was curious, to say the least, especially
restricted commerce by not giving all FL teams equal because the very same Supreme Court invoked “stream
access to acquiring an MLB counterpart. of commerce” to break up a trust in Stafford v. Wallace,
which took place in the same month (May 1922) as the
This lawsuit eventually became the case of Federal Federal Baseball Club decision.27 This alone is sufficient
Baseball Club v. National League (1922).25 The trial court in showing that the “stream of commerce” line-of-
initially held that the defendants were jointly liable in argumentation was still being used by the Court in its
payment of $250,000 to the Baltimore Terrapins, but decision-making and at the very least could have been
through the appeals process, the case reached the considered in Federal Baseball Club.
Supreme Court, which reversed this decision and ruled
against the Terrapins. Justice Oliver Wendell Holmes “When boxers travel from State to State,
gave the Court’s unanimous opinion in favor of Major carrying their shorts and fancy dressing
League Baseball, stating, robes in a ditty bag in order to participate

The players, it is true, travel from place to place in in a boxing bout, which is wholly
interstate commerce, but they are not the game. Not intrastate, it is now held by this Court
until they come into contact with their opponents that the boxing bout becomes interstate
on the baseball field and the contest opens does the commerce. What this Court held in the
game come into existence. It is local in its beginning Federal Baseball case to be incident to the
and in its end. Nothing is transferred in the process exhibition now becomes more important
to those who patronize it.26 than the exhibition. This is as fine an
example of the tail wagging the dog as can
Here, Justice Holmes claims that Major League Baseball be conjured up.” ~ Sherman Minton
is not a matter of interstate commerce because the
product in question, the baseball game itself, is purely
an intrastate event to which the Sherman Act cannot

76 Kinder Institute

In later discussing the case, Justice Samuel Alito argued "Jackie Robinson in Kansas City Monarchs Uniform” (1945)
that the decision to cite E. C. Knight was the right one,
and he deemed the Federal Baseball Club ruling to be as At a glance, the manufacture of baseball is not as
reasonable (or unreasonable) as the 1895 precedent.28 tangible, and thus not as easily defined, as meat
Simply put, Justice Alito is wrong in this thinking. packaging or sugar refining. Even in its uniqueness,
For one, in noting that Holmes’ majority opinion though, baseball and its manufacture are far more
in Federal Baseball Club was consistent with his prior similar to the former than the latter, a fact that makes
rulings, Alito surprisingly (or perhaps conveniently) Swift & Co., not E. C. Knight, the more relevant
ignores that Holmes sided with the majority in Swift & precedent in Federal Baseball Club and, in this, the most
Co.9 That Alito makes no mention of this is, however, direct entry point for questioning Holmes’ logic in
symptomatic of a larger flaw in his commentary: a exempting MLB from antitrust law. To demonstrate
failure on his part, as it was a failure on the part of the this, we need to first think about baseball in relation
judges in Federal Baseball Club, to adequately address to sugar and meat’s respective geographic spheres of
why Swift & Co. was not used. manufacture. On a sliding scale ranging from “entirely
intrastate” to “entirely interstate,” sugar would be
To review the precedent that Holmes used in Federal at the far end toward “entirely intrastate” because of
Baseball Club in comparison to the one that he curiously its quick and contained manufacturing process. Meat
avoided using, the E. C. Knight case held that if the production is a little harder to place, but it should
manufacture of a good takes place exclusively within fall somewhere in between the two endpoints of this
state lines and does not affect interstate commerce, then spectrum, which would roughly symbolize a process that
the manufacturer is not subject to the Sherman Act. One could be either entirely intrastate or entirely interstate
especially important distinction to note is that the E. C. depending upon the scale of production. Baseball
Knight case dealt specifically with the manufacture, and manufacturing, while perhaps superficially hard to
not the sale, of sugar. Excluding the fact that sugarcane define, should clearly be well past meat packaging
cannot be grown everywhere, sugar can be completely toward the “entirely interstate” endpoint. This is
refined and manufactured in one state. If someone has primarily because the process of “manufacturing” a
access to sugarcane, making sugar can, in fact, be done in baseball player is geographically expansive. Baseball
just a few simple steps, making the E. C. Knight decision players are scouted and drafted from across the nation
entirely defensible.30 On the other hand, the manufacture every year by the various MLB clubs.33 Once drafted,
of meat, the product in question in Swift & Co., is much
more complex. Cattle must be either purchased or bred
and then raised on a plot of land until they are ready for
slaughter.31 Once of age and appropriate weight, cattle
are slaughtered and then rated and labeled for meat
quality, and from there, they are butchered into different
cuts of beef and packaged. After being packed, the meat
is finally ready for distribution and sale. It is true that, in
practice, the process of going from live cow-to-saleable
beef can be, and sometimes is, localized, which would
make the process totally intrastate (and which would
make E. C. Knight relevant). That said, the companies
in Swift & Co. were based around Chicago, and their
manufacturing and distribution processes involved
several states across the Midwest, which, as the Court’s
ruling in the case rightly noted, made the process subject
to interstate regulation.32

Journal on Constitutional Democracy 77

a player usually reports to a minor league club, such two paragraphs showed, the games are just one stop
as Toolson’s Newark Bears, but may be a little raw in on an extensive line of production, meaning that
talent. After a player grows into his ability, sometimes the industry’s effect on interstate commerce is much
passing through as many as five minor league stops in larger than a single, localized, three-hour contest.
five different states as he does so, he may be called up And although the Federal Baseball Club decision came
to play for his parent organization (to use the Toolson down in a bygone area—a time before mass television
example, players from the Newark Bears may be called deals, international merchandising, and multibillion-
up to play for the New York Yankees). When a team has dollar baseball franchises34—a baseball team could still
all of its different players ready, they will play games bring well over a million people to the stadium over
in their own city and in other cities from coast-to- the course of a season and have an economic impact
coast against other MLB clubs comprised of players on an area that went far beyond not only the stadium
who have followed a similar (and similarly circuitous) gates but also the state lines.35 It is thus abundantly
developmental trajectory. clear that, even in 1922, the business end of baseball
was a long process involving hundreds of people and
To complete the analogy, the duration of the multiple industries—scouting, research, development,
manufacturing process must also be examined in transportation, and management, as well as industries
order to place baseball within an interstate stream ancillary to the sport, such as hospitality—and therefore
of commerce. As for sugar, once you have sugarcane should have been classified by the Court as part of a
available, the stream of commerce is effectively over; “stream of commerce” with an intended impact on
making sugar from sugarcane can be completely done interstate affairs.36
by one firm, in one day, affecting only one industry
in one location. Meat production can be localized So far, this paper has only answered one of the two
like sugar, but it is always spread out over a far longer questions outlined in the introduction: that the Supreme
span of time, opening up the manufacturing process Court in Federal Baseball Club v. National League was
to more variation and, in this, to a greater likelihood unjustified in granting MLB an antitrust exemption,
of crossing over into interstate commerce. Baseball because it failed to account for what should have been
players, somewhat like cattle (if you can excuse the obvious—that baseball is clearly a matter of interstate
crass analogy), are bought and molded over time until commerce. The second, very related question, “is the
they reach their max potential, but the entire process exemption due for an update,” is easier to answer, since
related to this maturation is far more sprawling and far the interstate presence and impact of baseball has only
more variable than what we see with meat production. grown (and grown exponentially) since 1922. In short,
Baseball players usually pass through multiple the Federal Baseball Club ruling is, without a doubt, due
industries and take multiple years before they are for an update. Why? Because MLB had a 2015 revenue
completely “manufactured,” making baseball altogether of $9.5 billion, total attendance of 73.1 million, and
different from sugar and beef in terms of both length an estimated total worth of $36 billion.37 And because
and location of production. And this is why baseball MLB has 30 major league teams in 18 states and two
manufacturing would be near “entirely interstate” on countries, and 244 minor league teams, spanning 47
the sliding scale—because each professional baseball states and three countries.38 And because all MLB
team is made up of dozens of players who most likely teams have multi-million dollar deals for radio and
played and trained for significant lengths of time in television broadcasting.39 And finally, and perhaps most
other states and for other organizations. importantly, because the effect of a baseball team on
its host community is estimated to be as large as $132
Only the most simplistic interpretation of baseball— million.40 This hundred million dollar boost could be
one that ignores everything that goes into the totally intrastate, sure, but with several teams positioned
manufacture of the sport—gives way to the logic that near state borders or in multi-state metropolitan
MLB should be exempt from Sherman Act regulation areas (New York City, Philadelphia, and Washington
because the entire business/product of baseball is D.C., to name a few), the possibility that the game’s
confined to the games themselves. As the previous

78 Kinder Institute

7 6 2

8
1

4 9 55


3

A lineup card is a way for teams to quickly
show players, and the umpires, who is playing
and who is available to come in off the bench
or in from the bullpen during a given game.
This lineup card represents a fictitious game
between Major League Baseball and the made-
up Baltimore Trustbusters. The Trustbusters are
made up of eight position players, four pitchers,
and two coaches, all of whom had some
involvement with MLB’s lack of employment
rights. Their individual involvements are varied,
but each one was either a victim of MLB’s
monopoly or helped push back against MLB’s
monopoly. The nine individuals pictured on the
field are the starters for the day and are placed
in their correct defensive position. This lineup
card is modified to include the four umpires
for the game. Each umpire is a judge that
helped sustain MLB’s monopoly at some point
in history. The twelve players and two coaches
of the Baltimore Trustbusters hope to defeat
Major League Baseball out on the diamond, but
with this umpire crew, it seems unlikely.

Journal on Constitutional Democracy 79

economic impact is confined to a single market is, to Major League Baseball, "Curt Flood of the St. Louis Cardinals”
be generous, unlikely. In other words, baseball’s status
as a driver of interstate commerce seems undeniable in (2014)
2017, yet MLB still has an antitrust exemption from
the Supreme Court. evidence—embodies the borderline absurdity of the
Court’s unwillingness to revisit the Federal Baseball Club
The Supreme Court has had two opportunities to ruling. While there is no way to be entirely sure what
update the decision of Federal Baseball Club v. National is behind the Court’s reluctance, some have speculated
League: once in 1953, in the aforementioned case that it is because of baseball’s history as America’s
involving George Toolson, and again in 1972, in Flood pastime, arguing that if the court overturned the
v. Kuhn. In both instances, the Supreme Court upheld ruling, other organizations could challenge the game’s
the decision in Federal Baseball Club v. National League hallowed status.47 In theory, yes, the effect of this could
in spite of the fact that the business of baseball was well be devastating for baseball, but I would venture to say
on its way to becoming the modern, interstate, and that not much would actually change. The NFL had
multinational powerhouse it is today.4142 Toolson v. New the XFL challenge its dominance in 2001, but the
York Yankees was a 7-2 decision, in which the majority XFL failed in its first year (without any outside legal
stated that “if there are evils in this field which now intervention, it should be added).48 Because of this, the
warrant application to it of the antitrust laws, it should NFL has a strong argument for being seen (and treated)
be by legislation.”43 The majority chose, in other words, as a natural monopoly, a status which I am sure would
to stick to the precedent of the Federal Baseball Club case, apply to baseball as well. If a league in 1913 could not
while putting the responsibility on Congress to rescind successfully infringe on MLB’s turf, it stands to reason
the league’s exemption should “evils in the field” deem that a league today would struggle even more.
it necessary. The case of Flood v. Kuhn brought more of
the same. In a 5-3 decision, the majority opinion held Perhaps Congress and the Supreme Court have failed
that the precedent of the Federal Baseball Club case did to act here because they perceive that there would be
not implicitly need re-examination, adding that, if such no gain in doing so. And while that may be true today,
a re-examination were at some point to occur, it would the events of the past 90 years tell a different story. For
not be the Court leading the charge. “Congress, by its nearly a century, the antitrust exemption allowed MLB
positive inaction,” the Court ruled in Flood v. Kohn, teams to treat their employees as if they were utterly
“has allowed those decisions to stand for so long and, disposable. Players did not have a union at the time
far beyond mere inference and implication, has clearly
evinced a desire not to disapprove them legislatively.”44
These decisions were widely criticized by minority
dissenters on the Court and outside legal scholars for
a number of reasons, not least of which was the way in
which, in both cases, the majority very much seemed
to concede that revision of the exemption was perhaps
worth considering while, in the same breath, saddling
Congress with the actual task of alteration should it
ever come up.45

In the majority opinion in Flood v. Kuhn, Justice
Harry Blackmun, in a very interesting turn of
phrase, concluded that “professional baseball is a
business and it is engaged in interstate commerce.”46
The acknowledgement that baseball is “engaged
in interstate commerce” by itself—let alone when
considered in combination with the previously cited

80 Kinder Institute

of the Toolson case, and, without one, they could not MLB would have chosen the former in order to keep
collectively bargain on their own behalf for raises or its natural monopoly, and all else would be the same as
improved labor conditions and instead were subject to it is now. Today, even with two opportunities to revise
the whims of ownership.49 If they were lucky, unhappy the decision and Justice Blackmun personally admitting
players would be granted a trade or contract release, that baseball is a form of interstate commerce, the initial
though some, like Toolson, had their careers ended by antitrust exemption remains. And while I disagree with
stubborn owners acting with the carte blanche power of Justice Alito’s opinion that the Court was right to grant
the exemption behind them.Thirteen years after Toolson, the exemption in the first place, I do believe that he was
the Major League Baseball Players Association became correct when he said that “the real losers” in this matter
an official union and successfully negotiated a collective “are the local people.”52 Some players, like Toolson and
bargaining agreement with MLB team owners to raise Flood, had their careers ended by the decision not to
the minimum league salary.50 Still, baseball players rescind the exemption, and some fans, like those of the
lacked the means to choose their own employer, and Baltimore Terrapins, were wrongfully denied a chance
Curt Flood, from Flood v. Kuhn, had his career ended to see their hometown host a professional baseball
because of this. Finally, three years after the Flood game in their lifetimes.
ruling, baseball removed the reserve clause which stated
that players could only join a new organization if their 1Sherman Antitrust Act. 26. 2 Jul. 1890. Stat. 209.
current team allowed them to do so, thereby granting
players the right to choose their own employer through 2Robert H. Bork. “Legislative Intent and the Policy of
the modern day free agency system.51 the Sherman Act.” The Journal of Law & Economics,
Vol. 9 (Oct., 1966), pp. 7-48.
Sandra Cohen-Rose and Colin Rose, “Stade Fernand Bédard”
(2008) 3Robert H. Bork. “Legislative Intent and the Policy of
the Sherman Act.” The Journal of Law & Economics,
The negative effect of baseball’s employment rules Vol. 9 (Oct., 1966), pp. 7-48.
on Toolson, Flood, and many others could have been
avoided if the Courts removed, or perhaps never 4Roger I. Abrams. “Before the Flood: The History of
initially granted, baseball’s antitrust exemption. Baseball’s Antitrust Exemption.” Marquette Sports
Removing the exemption would have allowed other Law Review, Volume 9 (1999), pp. 307-313.
leagues to competitively enter into the market, and
some, seeing the need to attract players, would have 5Mckelvery, G. Richard. For It’s One, Two, Three,
offered greater salaries and better contract rights. If Four Strikes You’re Out At The Owners’ Ball Game:
this were to have happened, MLB would have been left Players Versus Management in Baseball. Mcfarland,
with two options: (1) grant players similar rights and 2001, p. 52.
privileges; or (2) lose their market share. Safe to say,
6Federal Baseball Club of Baltimore, Inc. v. National
League of Professional Baseball Clubs, et al., 259 U.S. 200
(1922).

7Sherman Antitrust Act. 26. 2 Jul. 1890. Stat. 209.

8Sherman Antitrust Act. 26. 2 Jul. 1890. Stat. 209.

9Sherman Antitrust Act. 26. 2 Jul. 1890. Stat. 209.

10Robert H. Bork. “Legislative Intent and the Policy of
the Sherman Act.” The Journal of Law & Economics,
Vol. 9 (Oct., 1966), pp. 7-48

Journal on Constitutional Democracy 81

11Anne Mayhew. “The Sherman Act as Protective 26Federal Baseball Club v. National League, 259 U.S. 200.
Reaction.” Journal of Economic Issues, Vol. 24, No. 2 US Sup Ct. 1922.
(Jun., 1990), pp. 389-396
27Stafford v. Wallace, 258 U.S. 495. US Sup Ct. 1922.
12Robert H. Bork. “Legislative Intent and the Policy of
the Sherman Act.” The Journal of Law & Economics, 28Samuel A. Alito. “The Origin of the Baseball
Vol. 9 (Oct., 1966), pp. 7-48. Antitrust Exemption: Federal Baseball Club of
Baltimore, Inc. v. National League of Professional
13Anne Mayhew. “The Sherman Act as Protective Baseball Clubs”. Journal of Supreme Court History.
Reaction.” Journal of Economic Issues, Vol. 24, No. 2 Volume 34, Issue 2, 2009. Pp. 183-195.
(Jun., 1990), pp. 389-396.
29Samuel A. Alito. “The Origin of the Baseball
14United States v. E. C. Knight Co., 156 U.S. 1. US Sup. Antitrust Exemption: Federal Baseball Club of
Ct.1895. Baltimore, Inc. v. National League of Professional
Baseball Clubs”. Journal of Supreme Court History.
15 Wm. F. Dana. “The Supreme Court and the Volume 34, Issue 2, 2009. Pp. 183-195.
Sherman Anti-Trust Act.” Harvard Law Review, vol.
16, no. 3, 1903, pp. 178–185. 30“How We Get Sugar.” The Sugar Assocation, The
Sugar Assocation, https://www.sugar.org/how-we-get-
16 United States v. E. C. Knight Co., 156 U.S. 1. US Sup. sugar/. Accessed 1 Feb. 2017.
Ct. 1895.
31Reid, J.C. “Pasture to Plate: How a cow becomes a
17Northern Securities Co. v. United States, 193 U.S. 197. steal.” Houston Chronicle, 22 Oct. 2014. Accessed 1 Feb.
US Sup. Ct.1904. 2017.

18Biklé, Henry Wolf. “The Northern Securities 32Swift & Co. v. United States, 196 U.S. 375. US Sup.
Decision. A Review.” The American Law Register Ct. 1905.
(1898-1907), vol. 52, no. 6, 1904, pp. 358–380.
33Wild, Danny. “Want to play in the Minors? Here’s
19Northern Securities Co. v. United States, 193 U.S. 197. how.” Minor League Baseball, MiLB, 18 Mar. 2015.
US Sup. Ct.1904. Accessed 1 Feb. 2017.

20Swift & Co. v. United States, 196 U.S. 375. US Sup. 34Samuel A. Alito. “The Origin of the Baseball
Ct.1905. Antitrust Exemption: Federal Baseball Club of
Baltimore, Inc. v. National League of Professional
21Gordon, David. “Swift & Co. v. United States: The Baseball Clubs”. Journal of Supreme Court History.
Beef Trust and the Stream of Commerce Doctrine,” Volume 34, Issue 2, 2009. Pp. 183-195.
American Journal of Legal History, vol. 28, no.3,
1984, pp 244–279. 35Samuel A. Alito. “The Origin of the Baseball
Antitrust Exemption: Federal Baseball Club of
22wift & Co. v. United States, 196 U.S. 375. US Sup. Baltimore, Inc. v. National League of Professional
Ct.1905. Baseball Clubs”. Journal of Supreme Court History.
Volume 34, Issue 2, 2009. Pp. 183-195.
23Okkonen, Marc (1989). The Federal League of
1914–1915: Baseball’s Third Major League. Garrett 36Svrluga, Barry. “The Glue.” The Washington Post, 22
Park, Md: Society for American Baseball Research. Sept. 2014. Accessed 1 Feb. 2017.

24Grow, Nathaniel. “Baseball on Trial: The Origin of 37Brown, Maury. “MLB Sees Record Revenues
Baseball’s Antitrust Exemption”. University of Illinois For 2015, Up $500 Million And Approaching $9.5
Press. 2014. Pp. 94-150. Billion.” Forbes. 4 Dec. 2015. Web. 3 Dec. 2016.

25Federal Baseball Club v. National League, 259 U.S. 200. 38Minor League Baseball affiliations page. http://www.
US Sup Ct. 1922. milb.com/milb/info/affiliations.jsp

82 Kinder Institute

39Edwards, Craig. “Estimated TV Revenues for All 30
MLB Teams.” Fangraphs. 25 April 2016. Web. 3 Dec.
2016.

40Matheson, Victor and Baade, Robert, “Striking Out?
The Economic Impact of Major League Baseball
Work Stoppages on Host” (2005). Economics
Department Working Papers. Paper 86.

41Toolson v. New York Yankees, Inc. 346. US 356. U.S.
Sup Ct. 1953.

42Flood v. Kuhn. 407 US 258. U.S. Sup Ct. 1972.

43Toolson v. New York Yankees, Inc. 346. US 356. U.S.
Sup Ct. 1953.

44Flood v. Kuhn. 407 US 258. U.S. Sup Ct. 1972

45Samuel A. Alito. “The Origin of the Baseball
Antitrust Exemption: Federal Baseball Club of
Baltimore, Inc. v. National League of Professional
Baseball Clubs”. Journal of Supreme Court History.
Volume 34, Issue 2, 2009. Pp. 183-195.

46Flood v. Kuhn. 407 US 258. U.S. Sup Ct. 1972.

47Roger I. Abrams, “Blackmun’s List,” 6 Va. Sports
& Ent. L. J., 181, 183 (2006–7); see also Roger I.
Abrams, Legal Bases: Baseball and the Law, 60 (1998).

48Sandomir, Richard. “Pro Football; No More
Springtimes for the XFL as League Folds.” The New
York Times, 11 May 2001. Accessed 1 Feb. 2017.

49“Our History.” MLB Players, MLBPA, 29 June 2016.
Accessed 1 Feb. 2017.

50“Our History.” MLB Players, MLBPA, 29 June 2016.
Accessed 1 Feb. 2017.

51Flynn, Neil F. Baseball’s Reserve System: The Case
and Trial of Curt Flood Vs. Major League Baseball.
Springfield, Il, Walnut Park Group, 2006. Accessed 2
Feb. 2017.

52Samuel A. Alito. “The Origin of the Baseball
Antitrust Exemption: Federal Baseball Club of
Baltimore, Inc. v. National League of Professional
Baseball Clubs”. Journal of Supreme Court History.
Volume 34, Issue 2, 2009. Pp. 183-195.

Journal on Constitutional Democracy 83

Feminism and
Conservatism
in the Judicial
Opinions of
Sandra Day
O’Connor

by Natalie Fitts

Lee Lockwood, “Estelle Griswold, executive director
of the Planned Parenthood League” (1963)

84 Kinder Institute

When then-President Ronald Reagan appointed in relation to her identity as both a woman and a
Sandra Day O’Connor to the U.S. Supreme Court on conservative. While the results of these examinations
August 19, 1981, he was fulfilling one of his campaign vary case-by-case, this article will show that O’Connor
promises to appoint a woman to the nation’s high ultimately tended to rule in favor of states’ rights in
court upon the next vacancy. The public reaction to these instances, regardless of how that ruling related
her appointment and subsequent confirmation was to either the conservative or feminist view on abortion.
largely positive, and the Court found itself inundated
with letters celebrating it as a huge milestone for White House Photographic Office , "Photograph of Sandra Day
women and their future in politics. However, her O’Connor Being Sworn in as a Supreme Court Justice” (1981)
nomination was not without its critics. She was
scrutinized heavily for her “ideological reliability.”1 In
particular, because of her gender and senatorial voting
record on women’s issues, including abortion, some
people, such as televangelist and Southern Baptist
pastor Jerry Falwell and members of the National
Right to Life Committee, urged that O’Connor not be
confirmed on the grounds that she sometimes strayed
from traditional conservative and Republican ideas.
The right-wing Moral Majority echoed this claim,
expressing concern that she would be overly focused on

"President Reagan and his Supreme Court Justice nominee In a recent Pew Research Center survey, sixty-nine
Sandra Day O’Connor" (1981); Deborah Thomas, “Jerry Falwell, percent of individuals who identified as conservative said
that abortion should be illegal in all or most cases. By
evangelical and leader of the Moral Majority—Tallahassee, contrast, only twenty-seven percent of self-identifying
Florida” (1984) conservatives believed that abortion should be legal in
all or most cases.4 Meanwhile, the traditional feminist
“issues linked to feminism.”2 Despite these concerns, view on abortion, which aligns with the traditional
Reagan remained steadfast in his selection, with one liberal view on the issue, is that it should be legal because
of his officials declaring that O’Connor “had the right “women have a…right to decide what to do with their
philosophy, the right political affiliation, [and] the bodies” and because “the right to abortion is vital for
right backing.”3 Reagan’s confidence in the nomination gender equality [and] for individual women to achieve
aside, O’Connor’s appointment marked the beginning their full potential.”5 O’Connor could have chosen to
of years of debates regarding how feminism and consistently side with one of these views, but again,
gender played into her decisions while on the Court. she instead usually voted in favor of states’ rights when
Specifically, scholars and the public alike sparred cases regarding abortion were brought to the Court.
over how O’Connor chose to side when the issue of And while supporting states’ rights is typically seen as
women’s rights, and especially abortion rights, came conservative, I would argue that O’Connor’s opinions in
into conflict with the conservative ideology she was these cases had less to do with her political ideology and
known for. More than ten years after her retirement, more to do with her interpretation of the Constitution.
scholars still examine how she voted on abortion cases
The most prominent cases related to abortion for
which O’Connor wrote majority, concurring, or
dissenting opinions during her time on the Court
are Thornburg v. American College of Obstetricians and
Gynecologists (1986), Webster v. Reproductive Health
Services (1989), Hodgson v. Minnesota (1990), Planned

Journal on Constitutional Democracy 85

Parenthood of Southeastern Pennsylvania v. Casey (1992), Harry Blackmun, Lewis F. Powell Jr., and John Paul
and Ayotte v. Planned Parenthood of Northern New Stevens agreed with the majority or concurring
England (2006). This essay will look at these five cases opinions. Meanwhile, two conservative justices,
in chronological turn, considering what each one tells Warren E. Burger and William Rehnquist, and one
us about the relationship between O’Connor’s opinions moderate justice, Byron White, joined O’Connor
and traditionally feminist and conservative perspectives for the dissenting opinion. The 5-to-4 decision held
on abortion. All ideological labels for justices that are that Pennsylvania’s statutory restrictions undermined
used throughout the essay (conservative, moderate, a woman’s right to privacy and were blatant attempts
and liberal) are based on Segal-Cover scores, which to prevent women from making their own decisions
measure the perceived ideologies and experience of regarding abortion.
Supreme Court justices based on analysis of pre-
confirmation editorials from major newspapers such “I think the important thing about my
as The New York Times, Washington Post, and The Wall appointment is not that I will decide
Street Journal. cases as a woman, but that I am a
woman who will get to decide cases.”
Of these five cases, the only one for which O’Connor ~ Sandra Day O’Connor
wrote the dissenting opinion was also the earliest,
In her dissenting opinion, O’Connor cites her prior
Thornburg v. American College of Obstetricians and dissenting opinion in Akron v. Akron Center for
Gynecologists (1986). Thornburg challenged the Reproductive Health (1983), in which she determined
constitutionality of legislation enacted in Pennsylvania that the state has the main interest in protecting
in 1982 that created a variety of restrictions on maternal health and potential human life, and then
abortion, which included: “informed consent” of the went on to argue that state laws regarding abortion
woman receiving the abortion, meaning that she would should only be challenged in the Supreme Court
be required to know information such as the name if they do not advance the interests of the state in
of the doctor performing the abortion; mandated protecting maternal health and potential human life or
awareness of the “particular medical risks” of both the if they place an undue burden on a woman’s abortion
abortion procedure and carrying the fetus to term; and decision. In regard to Thornburg, she argues that
access to “facts that there may be ‘detrimental physical the case should not even be the Court’s decision to
and psychological effects,’ that medical assistance make in the first place, since the law in question does
benefits may be available for prenatal care, childbirth, not meet either of these two criteria. As she further
and neonatal care, that the father is liable to assist in explains, the majority opinion in fact establishes a new
the child’s support, and that printed materials are precedent that the Court will now invalidate any law
available from the State that describe the fetus and that creates “the mere possibility that some women
list agencies offering alternatives to abortion.”6 Other will be less likely to choose to have an abortion”7 than
restrictions enacted by the legislation concerned the they would have been had the law not been enacted.
distribution of certain information about the risks She writes, conclusively, that the decision marks “the
of abortion, reporting procedures, using particular Court’s attempt to discredit and preempt state abortion
medical procedures after viability, and the presence of regulation regardless of the interests it serves and the
a second doctor for abortions occurring post-viability. impact it has.”8
The Court was asked to determine if these statutory
restrictions interfered with a woman’s right to privacy. These arguments show that O’Connor’s decision
in this particular case had very little to do with
At the time the case was decided, the Court was her support (or lack thereof) of abortion and was
composed of six conservative justices, including
O’Connor; one moderate justice; and two liberal
justices. Two liberal justices, William J. Brennan Jr. and
Thurgood Marshall, and three conservative justices,

86 Kinder Institute

instead driven by her belief in a state’s right to create and counseling regarding abortions were illegal; and
its own laws regarding abortion. Therefore, this case that doctors were required to perform viability tests
cannot be used to determine if O’Connor tends to on women once they reached their twentieth (or later)
rely more on traditionally feminist or traditionally week of pregnancy. In this case, the Court needed to
conservative views in making decisions on abortion, determine whether or not these restrictions infringed
even though she essentially did vote against abortion upon the right to privacy or violated the Equal
rights in this instance. Protection Clause of the Fourteenth Amendment.

White House Photographic Office , "Photograph of Sandra Day At the time of the case, O’Connor was one of six
O’Connor Being Sworn in as a Supreme Court Justice" (1981) conservative justices. Two of the other justices were
The next major abortion case the Court ruled on during liberal, while the ninth justice was moderate. The
O’Connor’s time was Webster v. Reproductive Health justices unanimously agreed with one part of the
Services (1989). O’Connor sided with the majority majority opinion, written by Rehnquist, a conservative.
in Webster while also writing a concurring opinion. After that, the Court was incredibly divided. White,
This case came to the Court after Missouri passed a moderate, and Antonin Scalia, O’Connor, and
legislation in 1986 that created several restrictions on Kennedy, all conservatives, agreed with three other
abortion, some of which were similar to those made by parts of the majority opinion. Rehnquist, White, and
Pennsylvania in Thornburg (1986). Stemming from the Kennedy also made up the plurality, agreeing with the
preamble of the Missouri legislation, which stated that final two parts of the case. O’Connor and Scalia also
“the life of each human being begins at conception,”9 wrote concurring opinions. Blackmun and Stevens,
the restrictions in question in Webster included: that both conservatives, wrote two dissenting opinions, and
public employees and facilities be prohibited from Brennan and Marshall, both liberals, joined them.
performing or assisting in any abortions that were not
necessary to save the mother’s life; that encouragement O’Connor agreed with most of the majority opinion,
which ruled: (1) the Court could not judge the
constitutionality of the legislation’s preamble, since
it was not used to concretely restrict abortions; and
(2) states are allowed to prohibit the use of public
employees and facilities in abortions, since the Due
Process Clause does not require that states enter the
business of abortion. O’Connor did not, however, agree
with the ruling that the viability testing statute should be
upheld, arguing that this “artificially confined”10 a state’s
interest in pregnancy by using the concept of trimesters.

As in Thornburg (1986), O’Connor based her decision in
Webster on her conviction that states should be in charge
of regulating abortion laws within their jurisdiction, and
her concurring opinion in the case reiterates both this
belief and her stance that the federal government should
only step in if state laws are unconstitutional. Again, her
states’ rights argument offers little help when it comes
to deciphering whether she relies more on feminist or
conservative views in abortion cases.

A year later, the Court ruled on Hodgson v. Minnesota
(1990), an abortion rights case dealing with the
constitutionality of a state law requiring a minor

Journal on Constitutional Democracy 87

to notify both of her parents before obtaining an Toward the end of her concurrence, O’Connor
abortion. Here, O’Connor, the conservative Blackmun, includes the main reason why she finds Minnesota’s
and the liberal Brennan and Marshall joined the two-parent notice requirement unreasonable: only
majority opinion, written by the conservative Stevens, half of the minors in the state of Minnesota live
in ruling that the two-parent notice requirement with both biological parents, and as a result, this
was unconstitutional. However, O’Connor also notice requirement would place an unfair burden
joined the Court’s more conservative justices at the on those minors who live with only one or neither
time (Rehnquist, White, Scalia, and Kennedy) in
determining that the law would only be valid with Executive Office of the President of the United States, "Draft Press
judicial bypass, which would allow a minor to obtain Release re Nomination of Sandra Day O’Connor to the Supreme
an abortion if she notified one parent or guardian.
The judicial bypass would also allow a minor who has Court (1981); President George W. Bush speaks via phone to
proved her maturity or extenuating circumstances to Associate Supreme Court Justice Sandra Day O’Connor" (2005)
receive approval from a judge for an abortion, rather
than notifying two parents or guardians. parent. O’Connor’s reasoning shows that she has
considered all arguments against the two-parent
In her partial concurrence, O’Connor begins by stating consent requirement, even when they conflicted with
that, while she does not agree with Justice Stevens’ and demanded that she deviate from her conservative
opinion in its entirety, she does agree with the majority ideology. Moreover, this case marked the first abortion
of it, particularly that “‘[a] woman’s decision to conceive restriction that O’Connor struck down, which, within
or to bear a child [is] a component of her liberty that is the scope of this particular examination, means that it
protected by the Due Process Clause of the Fourteenth can be used as an instance in which the Justice relied
Amendment to the Constitution.’”11 more heavily on traditionally liberal and feminist ideas
about abortion when deciding how to vote. It is worth
In discussing the areas where she disagrees with Stevens, noting that Hodgson v. Minnesota also marks a case in
O’Connor references the cases of Bellotti v. Baird (1979) which O’Connor reaffirmed the landmark holding in
and Planned Parenthood of Central Mo. v. Danforth (1976) Roe v. Wade (1973).
and their important decisions extending the right to
get an abortion to minors with certain limitations, one The fourth major abortion case O’Connor ruled on was
of which was allowing states to require parental notice Planned Parenthood of Southeastern Pennsylvania v. Casey
and consent before an abortion could be performed. In (1992). This case ultimately upheld the central ruling
looking at these two cases, O’Connor makes clear that of Roe v. Wade, in determining that because “matters,
she agrees that minors lack the maturity to make such involving the most intimate and personal choices
an important decision on their own, a point she further a person may make in a lifetime, choices central to
supports by citing Brennan’s concurring opinion in personal dignity and autonomy, are central to the liberty
Stanford v. Kentucky (1989), saying, “minors are treated protected by the Fourteenth Amendment,”13 a woman
differently from adults in our laws, which reflects the thus has the right to choose to have an abortion until
simple truth derived from communal experience, that a fetus becomes viable. The 1992 case also expanded
juveniles as a class have not the level of maturation and
responsibility that we presume in adults and consider
desirable for full participation in the rights and duties
of modern life.”12 This language shows that while
O’Connor does not fully agree with the two-parent
consent law, she also does not believe that minors
should be treated exactly the same way that adults are
in the eyes of the law, including when it comes to the
issue of abortion.

88 Kinder Institute

Segal-Cover scores measure the perceived ideologies and experience of Supreme
Court justices based on analysis of pre-confirmation editorials about their nominations
from newspapers such as The New York Times, Washington Post, and The Wall Street
Journal. The judges receive an overall score on an ideological spectrum, with 1 being
most liberal and 0 being most conservative. The average score for all justices to date
leans slightly liberal at 0.55. The following graph compares Sandra Day O’Connor’s
score with the scores of the justices she served with concurrently.

Jeffrey Segal and Albert Cover. “Ideological Values and the Votes of Supreme Court Justices” American
Political Science Review 83 (1989): 557-565.

on Roe v. Wade by granting states the right to ban an waiting period was required between the time a woman
abortion of a viable fetus under any circumstance except decided to have an abortion and when she actually
when the health of the fetus’ mother is at risk. Finally, received the abortion; and (5) that certain reporting
the ruling held that the constitutionality of state laws requirements were imposed on physicians and facilities
that restrict abortion should be examined in terms of that provided abortions. If found constitutional, the
an undue burden standard, deciding that if a law creates plaintiffs argued, these provisions would restrict some
substantial obstacles for a woman seeking an abortion, of the fundamental abortion rights established by Roe v.
the Court can use this undue burden standard to deem Wade, and therefore to uphold them would essentially
it invalid. be tantamount to overturning the 1973 decision.

In Planned Parenthood v. Casey, physicians and abortion O’Connor authored the majority opinion in Planned
clinics in Pennsylvania challenged the following five Parenthood v. Casey, which rejected the Pennsylvania
provisions of the Pennsylvania Abortion Control Act of legislature’s proposal to effectively overturn Roe v.
1982: (1) that doctors were required to inform women Wade and invalidated the provision of the Pennsylvania
considering abortion about its potential negative Abortion Control Act of 1982 that required a woman
impacts on their health; (2) that women were required to notify her husband before obtaining an abortion.
to notify their husbands before receiving an abortion; O’Connor was joined by Kennedy and Souter in full
(3) that minors seeking an abortion were required to get and Stevens and Blackmun in part.
consent from a parent or guardian; (4) that a 24-hour

Journal on Constitutional Democracy 89

According to Judith Olans Brown, Wendy E. Parmet, substantial obstacles to the woman’s effective right to
and Mary E. O’Connell’s co-authored Indiana Law elect the procedure; (2) a confirmation of the State’s
Review article, “The Rugged Feminism of Sandra power to restrict abortions after viability, if the law
Day O’Connor,” instead of “clearly overruling Roe” contains exceptions for pregnancies endangering a
and siding with the traditional conservative view of woman’s life or health; and (3) the principle that the
opposing abortion completely, O’Connor’s decision in State has legitimate interests from the outset of the
Planned Parenthood v. Casey “worked to form a centrist pregnancy in protecting the health of the woman and
consensus that eschewed both the status quo and the the life of the fetus that may become a child.”16
rescission of the right to abortion.”14 Her opinion
in the case was largely pragmatic, emphasizing the “She’s obviously a conservative woman,
importance of following precedent unless a dramatic but she did not turn her back on women’s
change in situation occurred or newfound knowledge
was discovered. In other words, O’Connor and the rights.” ~ Eleanor Smeal
other majority justices simply did not feel that there
had been a significant enough change in circumstance O’Connor’s decision here exemplifies an interesting
to warrant a complete abandonment of Roe v. Wade, interplay between the traditional feminist leanings
and she wrote in her opinion that “although Roe has she demonstrated in Hodgson and the states’ rights
engendered opposition, it has in no sense proven jurisprudence of Thornburg. If, on one hand, she
unworkable.”15 However, the Justices did find that new explicitly supports a woman’s right to choose to
research revealed that a fetus could become viable have an abortion before the fetus is viable, she also
earlier than was thought at the time of the Roe decision, recognizes that states, and not the federal government,
and they ruled that a state could choose to ban an are the proper authorities for making and approving
abortion once a fetus is viable per this new standard, abortion laws, a formulation that deftly finds a way to
except in cases where the health of the mother is at risk. simultaneously defend both states’ and women’s rights.

Steve Petteway, “The four women who have served on the Supreme The final major abortion case that O’Connor ruled
Court of the United States” (2010) on was Ayotte v. Planned Parenthood of Northern New
England (2006), for which she authored the unanimous
Overall, O’Connor determined in her opinion that majority opinion. This case came to the Court after
the Court had reaffirmed three major ideas in Planned New Hampshire’s state legislature approved the
Parenthood v. Casey: “(1) a recognition of a woman’s right Parental Notification Prior to Abortion Act but
to choose to have an abortion before fetal viability and before the legislation went into effect. The Planned
to obtain it without undue interference from the State, Parenthood branch named in the case claimed that
whose previability interests are not strong enough to this Act, which required that parents be notified before
support an abortion prohibition or the imposition of their minor daughter received an abortion, violated
the “undue burden” test created in Planned Parenthood
v. Casey. In addition, while the law did include an
exemption regarding abortions deemed necessary to
prevent the death of the mother, Planned Parenthood
of Northern New England felt it too narrow. The
Supreme Court’s job was thus to determine: (1) if
the Planned Parenthood branch could challenge the
constitutionality of the Act before it went into effect;
and (2) if the Act adequately protected the health of
minors seeking abortions.

The Court unanimously ruled that “States have the
right to require parental involvement when a minor

90 Kinder Institute

considers terminating her pregnancy” and that a “State 3Gross, Leonard and Norman Vieira. Supreme Court
may not restrict access to abortions that are ‘necessary, Appointments: Judge Bork and the Politicization of Senate
in appropriate medical judgment for preservation Confirmations. Southern Illinois University Press,
of the life or health of the mother.’”17 The Court 1998. pp. 7-8.
also ruled that in making this Act, New Hampshire
had ignored that some pregnant minors may need 4Lipka, M., & J. Gramlich. “5 facts about abortion.”
immediate abortions in order to protect their own Pew Research Center. 2017.
health and that to prohibit abortions in these cases
would be unconstitutional. 5“BBC - Ethics - Abortion: Arguments in favour of
abortion.” British Broadcasting Corporation. 2014.
While O’Connor still discusses states’ rights in her
Ayotte ruling, much like she does in nearly all of the 6Thornburg v. American College of Obstetricians &
previously examined opinions, she mainly focuses on Gynecologists, 476 U.S. 747. US Sup. Ct. 1985.
the health of the woman seeking an abortion. This
case is thus the first clear example of O’Connor siding 7Thornburg v. American College of Obstetricians &
with feminism, even if the issue at hand (“preservation Gynecologists, 476 U.S. 747. US Sup. Ct. 1985.
of the life or health of the mother”) is separate from
her consideration of states’ right to make their own 8Thornburg v. American College of Obstetricians &
abortion laws. Her opinion in Ayotte is especially Gynecologists, 476 U.S. 747. US Sup. Ct. 1985.
indicative of the breadth of concerns she regularly
took into account when examining cases involving 9Webster v. Reproductive Health Services, 492 U.S. 490.
abortion, a thoroughness of method and logic which US Sup. Ct. 1989.
makes it nearly impossible to pigeonhole her in terms
of ideology, even with an issue as partisan as abortion. 10Chopko, M., “Webster v. Reproductive
Health Services: A Path to Constitutional
Based on O’Connor’s rulings in these five cases, it is Equilibrium,” Campbell Law Review, vol. 12, no. 2,
clear that her main priority in making decisions on 1990, pp. 181–220.
abortion is ensuring that states are left to determine
the appropriate laws regarding it. She argues that 11Hodgson v. Minnesota, 497 U.S. 417. US Sup. Ct.
the Court should only intervene if a state’s laws are 1990.
potentially unconstitutional or if they create an undue
burden on a woman seeking an abortion. However, 12Hodgson v. Minnesota, 497 U.S. 417. US Sup. Ct.
in those cases when O’Connor does not explicitly 1990.
make a states’ rights argument, she instead typically
relies on feminism to inform and form her decisions, 13Planned Parenthood of Southeastern Pennsylvania v.
clearly supporting a woman’s right to choose whether Casey, 505 U.S. 833. US Sup. Ct. 1992.
or not to have an abortion—a foundation of modern
feminism—even when that support is at odds with her 14Brown, Judith Olans, Wendy E. Parmet, and Mary
otherwise conservative ideology. E. O’Connell. “The Rugged Feminism of Sandra Day
O’Connor.” Indiana Law Review. vol. 32, no. 4, 1999.
1 Gross, Leonard and Norman Vieira. Supreme Court pp. 1219-1246.
Appointments: Judge Bork and the Politicization of Senate
Confirmations. Southern Illinois University Press, 15Planned Parenthood of Southeastern Pennsylvania v.
1998. pp. 7-8. Casey, 505 U.S. 833. US Sup. Ct. 1992.

2Hayes, Hannah. “Sandra Day O’Connor: The 16Planned Parenthood of Southeastern Pennsylvania v.
Center Vote That Counted.” Perspectives Magazine, Casey, 505 U.S. 833. US Sup. Ct. 1992.
vol. 14, no. 2, 2005.
17Ayotte v. Planned Parenthood of Northern New England,
546 U.S. 320. US Sup. Ct. 2006.

Journal on Constitutional Democracy 91

92 Kinder Institute

Re-Education

Journal on Constitutional Democracy 93

The Fundamentals of a Democracy:
A Comprehensive Education System

by Bryanna Leach

"Buckminster Fuller at Black Mountain College" (1949)

94 Kinder Institute

Education is essential to the development of a person, Peloponnesian War against Sparta.2 The Spartans
and its role in democratic society is no less critical. came out victorious and replaced democracy in Athens
An educated citizenry has the means to participate with oligarchy, and two of Plato’s relatives became
in adequate debate and make informed decisions; an leaders in the new government. As his theory more or
educated citizenry can consider for itself what would less predicted, however, the new Spartan government
be the best solutions to social problems; an educated was overthrown after a few years and Athens returned
citizenry can avoid being misled by lies constructed for to democracy.
political advancement because its members have the
means and will to research and think for themselves. All over Greece, this pattern held, as different forms
Therefore, education is critical to the survival of a of government were alive, if unstably so, throughout
democratic nation, though the importance of this Plato’s life: Athens typically being a democracy, Sparta
relationship is not necessarily reflected in the aims and an aristocracy and oligarchy at various points, Crete an
methods of today’s classroom. This essay will explore aristocracy, and multiple cities tyrannies.3 Within the
how nontraditional forms and theories of education context of all of these differences and transformations,
could help resolve this issue and build a more educated Plato ultimately came to believe that stable government
citizenry going forward. was impossible, that aristocracy was the “perfect state,”
and that democracy was “charming,” but disorderly.4
Raphael, “The School of Athens” (1509)
When Plato wrote in Book VIII of The Republic that Though he questioned the possibility of stable
“[e]verything which has a beginning has also an end,”1 governance, Plato nevertheless developed theories of
he was speaking specifically about governments. Plato’s ideal governments vis-à-vis education. While Plato
theory was that governments would inevitably develop believed that everyone should seek out knowledge, he
in cycles, beginning with aristocracy, and then moving did not believe that everyone had the capacity to be
through oligarchy, timocracy, and democracy, before a just philosopher. And because not everyone had this
finally arriving at tyranny. In Plato’s time, governments capacity, and because he thought this capacity central
were, in fact, constantly being deconstructed and to successful governance, Plato believed that only the
transformed. Thirty years before Plato wrote The limited few who were predisposed to reach this station
Republic, for example, he fought with Athens in the should rule, a conviction about unequal faculties
that served as the foundation for his declaration
that aristocracy was the ideal governing form and
democracy too idealistic. In aristocracies, Plato
reasoned, the intellectual elite would naturally rise
to positions of power, and he went on to hypothesize
about how this form of government was conducive to
the creation of the “philosopher-king,”5 a term whose
order of operations reveals his belief that the head of
a “perfect state” must be properly educated and have a
just soul before he can effectively seek out power and
lead with the truth. In a democracy, on the other hand,
Plato determined that just governance would forever
be compromised by the fact that everyone would
participate in and be accountable for making decisions
that not everyone was capable of making.

Of course, in the more than two thousand years since
Plato’s death, aristocracies have come to be viewed
as undesirable and have been dismantled in favor
of democracies, which all but four of the world’s

Journal on Constitutional Democracy 95

countries at least claim to be.6 England, the United Of all the subjects that students are required to study in
States, and Switzerland, to name only a few, have primary, secondary, and post-secondary schools, a topic
thrived for hundreds of years under some version of notably missing from typical curricula is philosophy.
Plato’s charmingly “undesirable” form of governance, Since philosophical reasoning is not explicitly named
and their success can be attributed in no small part in Common Core’s list of standards,7 schools that are
to populations that are freely educated and given the constantly facing reduced budgets can easily overlook
resources necessary for self-determined growth. philosophy in favor of funding those subjects which are
required and tested and to which budgets are tethered
Plato’s elitist views about individuals’ capacity— (in several states, there were budget cuts of over 10
educational, political, and otherwise—have by this percent in 2016).8 However, teaching philosophy—
point been rejected by much of our society, where we teaching students to question everything and constantly
prefer to think that every person has the potential for seek out the truth, rather than take the world and what
self-improvement, intellectual growth, and significant they are told at face-value—could be the answer to
social contribution. The irony, however, is that our having a more informed and curious, and thus more
society still fails to teach in a way that equips people substantively participative and morally enlightened,
with the tools required to actually grow intellectually democratic citizenry.
and advance our democracy. In the past two decades, Enter Matthew Lipman.
educational policy has focused on knowledge and Matthew Lipman founded the Institute of
testing, with the implementation of programs like Advancement of Philosophy for Children (IAPC) in
Common Core and No Child Left Behind. While 1969, with the simple mission of teaching students to
students are pushed to excel in mathematics and writing, think.9 Lipman believed that this could be achieved by
they are not encouraged to think for themselves or to encouraging children to be philosophers, starting as
ask deep questions. In essence, students are taught how soon as they were able to speak. Like Plato, he believed
to be “college ready” but not how to be active citizens that philosophical thought was necessary for just
of and meaningful participants in a constitutional governance; unlike Plato, though, Lipman believed
democracy. that everyone had the capacity to think critically and
logically, and thus to participate in government, at a
“The function of education is to teach one high level—they just needed practice.
to think intensively and to think critically.”
Marion Post Wolcott, “Negro schoolhouses near Summerville,
~ Dr. Martin Luther King, Jr. South Carolina” (1938)

To the betterment of the United States, truth and
morality have often prevailed in times of rift, a
tendency embodied, for example, in the Reconstruction
Amendments of the U.S. Constitution, which
compelled the nation’s citizens to acknowledge slavery
as a moral blight and equal protection of rights as a
moral imperative. The fight for equal treatment of
all people in our country is undeniably still ongoing,
but it has persisted due to a relentless spirit of moral
progress. Going forward, we must ensure that being
on the right side of moral choice continues to be a
priority for people who are by nature inclined to be
self-interested first, and that the truth can still be
found in an Internet age when access to unlimited false
information increases daily.

96 Kinder Institute

“If I wished to punish a province, I and thoroughly analyze issues for themselves, arrive at
would have it governed by philosophers.” their own conclusions, and cogently express their views
in conversation with others. At the same time, because
~ Frederick the Great being trained in philosophy requires considering a
single subject from multiple points of view, strong sense
For Lipman, the negative implications of a lack thinkers will also develop a mindset that allows them
of philosophical education had started to become to be challenged without being offended and, in this,
apparent in democratic society by the late 1960s. For to be alternately capable of respectfully disagreeing
example, he noticed during the Vietnam War that, with beliefs that counter their own or revising their
while passionate about the subject, many Americans personal conclusions based on others' perspectives.
could not strongly express their thoughts on the The ideal democracy, Fisher reasons, has citizens who
conflict, and the beliefs they did have were not well are strong sense critical thinkers: people who can be
developed. The strategy Lipman devised to bridge this open-minded, fair, and flexible, and who treat problem
gap between sentiment and the articulation of it utilizes solving as an exercise in truth seeking that is necessarily
Socratic method to create classroom conversations carried out with an interest in the common good in
that become organically sustainable through questions mind. Unfortunately, he concludes, most politicians
that build on each other and work around subjects in exemplify weak sense critical thinking skills.
a way that encourages students to see various sides
of an issue. Students are challenged in the course of As the classroom conversation cited on the next page
discussion to justify and clarify their own beliefs and to indicates, Lipman’s pedagogy is designed to produce
consider other viewpoints—skills that will serve them precisely the strong sense thinkers whose importance to
and their communities well later in life as foundational democratic society Fisher champions. The conclusions
components of productive political discourse and that the students arrive at in this conversation are
responsible democratic decision-making. truly innovative and show incredible intellectual
range, acumen, and self-possession. More importantly,
A session in a Lipman course might include children though, the development of the students’ arguments
and teachers sitting in a circle reading a novel out loud over the course of the conversation shows their self-
together. Upon finishing the reading, the students are critical ability to re-analyze, revise, and improve their
asked to quietly reflect on what they enjoyed in the own logic through dialogue with others. For example,
text and what they would like to discuss from it. The one student, Tom, poses the question of whether the
students then volunteer their ideas by writing them brain and the mind are the same, and we can see his
on a chalkboard and decide collectively what the ideas evolve as the conversation twists and turns. He
discussion topic will be. After this, the group considers starts by saying that the mind and the brain could be
the question together in search of a logical answer, with the same thing, but almost immediately reevaluates this
the teacher only intervening to guide students’ inquiry. and says that the mind is a part of the brain, but not
the whole brain. His ability to ask a question, try to
In analyzing this method of instruction, Robert Fisher, answer it, and then publicly change his answer when he
author of Teaching Thinking, brings up the idea of realizes there is a better one demonstrates the kind of
“weak sense” and “strong sense” critical thinkers. strong sense skills that Lipman’s pedagogy cultivates.
Weak sense thinkers, he notes, maintain a personal, He is not afraid to be wrong for the sake of seeking
selfish point of view and argue in ways and for ends out the truth. Tom likewise shows a great capacity not
that will specifically benefit themselves. On the other only to listen to others’ ideas—he leans out for much
hand, strong sense thinkers can be simultaneously of the conversation as his classmates weigh in on his
self-possessed and self-critical, a combination from initial claim—but also to revise his own conclusions
which a commitment to both truth and equitability based on them. His final deduction—“your brain is like
follows. Because they are trained in philosophy, a dock and your mind is like a warehouse…containing
strong-sense thinkers are well-equipped to reasonably all your memories and thoughts on lots of different

Journal on Constitutional Democracy 97

“A Philosophical Discussion: Is Your Brain the Same As Your Mind?”

The following conversation is prompted by a reading of Melanie: Different.
Harry Stottlemeier’s Discovery by Matthew Lipman.
The question was written by one of the students, all of Isabel: Yes.
whom are 11 years old.
Melanie: Because it doesn’t control anything…
RF: Is your brain the same as your mind? Let’s see the mind just thinks.
if we can get a bit closer to an understanding of
that. Tom, why did you ask that question? Camilla: The mind I think is our thoughts more
than controlling our body. I mean our brain sends
Tom: Well, is it, I mean you brain controls your messages everywhere round our body all the time
heart and your arms and everything that goes on to nerves and everything, or they are sending
in your body, but does your mind really think, messages to the brain but the mind isn’t part of
‘Okay I’ll move left,’ and do you think ‘Okay brain this, I don’t think. I think the mind just contains
send messages down to the muscles to move’? your thoughts.

RF: So are you saying because the brain has its Jamie: And memories.
messages that the mind is not aware of that it
means that the mind cannot be the same as the The children discuss what happens to the mind
brain? when you die and when you dream, and are asked to
analogize the mind
Tom: Yes. It isn’t the same as the brain, because…
it’s part of the brain but it isn’t the brain. RF: Would you agree with someone who says the
mind is a bit like smoke in the brain… a sort of
Mark: I think I’d agree with Tom that your mind strange ghost?
is part of the brain. But… if you’d like to put one
inside the other you’d put the mind inside the Jamie: Yeah.
brain. So if the mind is inside the brain…
RF: If it’s like a strange ghost then could it live
Tom: Or inside part of it… outside the brain?

RF: Part of it. How do you think it’s different Maria: Not like a ghost.
from the brain? If not the same as the brain it
must be different, mustn’t it? Peter: The mind’s not like that… It’s not very
good.
Tom: Well the brain controls everything about us,
the mind as well, but the mind only controls our RF: Not a good way to describe that mind?
thoughts… and contains our thoughts. A lot of thinking goes on in what are called
analogies. We’ve got to liken it to something else
Jamie: Memory… to understand it better. What would you say the
mind is like?
Tom: I think the mind is made out of memories
and thoughts… it’s a thinking bank. Pete: Like a big warehouse… with things on the
back shelves of your memory… and things being
RF: So is the mind the same as the brain, but the moved around in your thoughts.
brain just bigger than the mind, or is the mind
different from the brain? Jamie: Yeah.

98 Kinder Institute

RF: So part of the warehouse is called the shelves”—weaves together his own mind-as-warehouse
mind? The active part… analogy with his classmate Peter’s claim that the brain
is “a dock…containing lots of different warehouses for
Tom: No, the warehouse is your mind. doing different things [and] with things on the back
shelves for your memories.” Tom has not simply taken
… the abstract idea of whether the mind and brain are
separate and turned it into a concept that he can easily
RF: If the mind is like a warehouse what is the grasp by comparing it to the tangible world that he
brain like? Can you continue this analogy…? knows (though this is certainly impressive for a student
of his age); he has done so in a way that recognizes
Maria: A brain is like a… a… beehive. truth seeking as a necessarily collaborative process that
incorporates the ideas and acknowledges the interests
Peter: A dock… containing lots of different of others.
warehouses for doing different things.
Those citizens and politicians who use strong sense
Mark: An ants’ nest! skills constantly reevaluate the world around them,
acting at all times in the best interest of society by
(The children are asked to sum up their revising their ideas (and the world) to fit the needs of the
thoughts) constantly evolving state in which we live. Therefore,
when politicians change their mind or voting behavior
RF: So if we come back to Tom’s question - ‘Is over time because of increased education and insight
your mind the same as the brain? - we could into a topic, they should not immediately be ridiculed
now formulate a much better answer to that, as wavering or pliable, but instead be praised for
couldn’t we? opening their minds and altering their views when the
public interest called for it. If everyone were encouraged
Tom: Yes. to discuss issues and evolve their thinking based on
facts and consideration of others’ viewpoints, our
RF: How would you sum up your answer now, government could better serve the public both in the
Tom? present and with an eye toward the future.

Tom: Your brain is like a dock and your mind Fifty years later, Lipman’s ideas are valued by a small
is like a warehouse in it containing all your group of people but are not widely established. However,
memories and thoughts on lots of different their acceptance and introduction into schools could be
shelves… and your brain sends lots of different
messages around and across the dock.

Nationaal Archief, “Schoolklas begin jaren ‘50” (1950)

Journal on Constitutional Democracy 99

a fundamental piece of public education that America Axel Kühn, “Mainbuilding of the Summerhill School in Leiston,
is missing. By teaching philosophy to students from Suffolk” (1993)
a young age, we could become a country of citizens
who think for themselves, challenge themselves, and or truth and opinion—between what is provable via
press authorities and politicians with tough questions. a text and what is subjectively inferred—philosopher
As a philosophically-educated citizenry, we would not Justin McBrayer rightly points out that “[t]hings can
ask, “What is your tax plan? How will it affect what I be true even if no one can prove them.”13 McBrayer
pay this year?” Instead, we would ask, “Why did you uses extraterrestrial life as an example. That humans
choose this plan rather than this one? How will this cannot currently prove whether there is life outside
tax plan affect not only myself but also the nation as of Earth does not warrant devaluing a belief about
a whole in the next 20 years?” Rather than implicitly extraterrestrial life by deeming it only an opinion
trusting elected officials’ answers and what is said on (by deeming it an “un-truth”). Because unproven
the news, we would be more inclined to pursue truths does not by nature imply unprovable, a belief that
for ourselves. A philosophically-educated citizenry, in extraterrestrial life could accurately reflect reality is,
other words, would not allow itself to be defined as a he argues, still a truth. As McBrayer suggests, because
pool of voters who know how to solve math equations of this—and because opinions are often based on
and in what year our country was founded; rather, a facts—we cannot draw a clear-cut line of separation
philosophically-educated citizentry would delight between something that is “fact” and something that
in being filled with selfless problem solvers who are is “opinion.” Teaching students the opposite—that
interested in the advancement of the collective over there is no overlap or intersection between these two
and before the satisfaction of their individual interests, categories—is indicative, he adds, of precisely the kind
and who know that the long-term success of everyone of nuanced distinction that Common Core guidelines
would benefit them and the country in return. encourage teachers to overlook.

Common Core educational objectives include teaching “Children must be taught how to think,
students to differentiate between explicitly-stated text not what to think.” ~ Margaret Mead
and inferences that readers draw as a result of their
lived experiences and unique perspectives; to evaluate Alien lifeforms aside, McBrayer’s broader point is that,
sources and evidence; and to be able to identify false under curricular standards like those that Common
statements and reasoning.10 There is certainly nothing Core promotes, students are implicitly and explicity
wrong with any of these aims. At the same time, being trained in what proves to be a contradictory
although they may reflect how Common Core has a theory of moral relativism: the idea that, because they
good purpose in mind, they likewise expose the limits of are un-provable, moral beliefs cannot be truths. But,
Common Core curriculum and the degree to which it he says, if there are no moral truths, then we have no
invites contradiction in some areas, like when it comes
to teaching students how to differentiate between fact
and opinion. For reference, we will use the Oxford
Dictionary’s definition of the two terms in question,
which track with the methodology for differentiating
between them taught under Common Core:

Fact: A thing that is known or proved to be true.11

Opinion: A view or judgment formed about
something, not necessarily based on fact or
knowledge.12

While Common Core draws a hard line between fact

100 Kinder Institute