hnyo

Rhetoric: Then & Now Vol. 2

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

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

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



JOURNAL ON CONSTITUTIONAL DEMOCRACY

2015-2016 Editorial Board

Senior Editor
Caroline Spalding

Content Editing and Copy Editing
Alison Bonner
Allison Pecorin
Jennifer Perritt

Andrew Wisniewsky

Layout and Design
Rachelle Engen

Rebecca Greenway
Alexander Hutton
Lindsay McManus
Jennifer Prohov

Contributions
Sera Holland



JOURNAL ON CONSTITUTIONAL DEMOCRACY
Rhetoric: Then & Now

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

Constituting (Origins)

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

Persuading (the Public)

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

Mongering (Fear)

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

Mobilizing (Voters)

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

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

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

6 Kinder Institute

Note from the Editor

Dear Reader,

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

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

Sincerely,

Caroline Spalding

Senior Editor

Journal on Constitutional Democracy 7

8 Kinder Institute

Introduction to Rhetoric: Then & Now

Dr. Thomas Kane

“as cookery : medicine : rhetoric : justice”

—Plato, “Gorgias”

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

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

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

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

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

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

Journal on Constitutional Democracy 9

10 Kinder Institute

Constituting (Origins)

Journal on Constitutional Democracy 11

R/republican

Alexander Hutton

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

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

Specifically, by using the consequences of religious

12 Kinder Institute

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

Journal on Constitutional Democracy 13

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

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

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

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

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

14 Kinder Institute

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

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

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

Journal on Constitutional Democracy 15

of religious tolerance that Jefferson rightly deemed across than capitalization could, why do we insist on
central to harmony, affection, and liberty). capitalizing these terms today?

We can apply the same method of analysis to the text of Some websites today that contain a transcript of the
Jefferson’s “First Inaugural Address,” as Jefferson’s lack speech indicate the words as being capitalized, including
of capitalization of the terms republican and federalist Yale University’s “Avalon Project,”9 while others,
likewise accomplishes several different tasks at once. including The Papers of Thomas Jefferson series through
True, a partisan association was likely unavoidable. But Princeton University,10 do not have the capitalization.
by using their lower-case versions, Jefferson demands In the end, it is important to realize that the decision
that people also consider these terms outside of their
normal partisan/party context. Specifically, and much “Grammar…knows how to control
even kings.”—Moliere

to capitalize the term is based on the assumption of the
translator/editor and was not dictated by the original
copy of the speech. Indeed, after a conversation
with The Avalon Project, it was determined that the
capitalization was neither intentional nor ideologically
driven but essentially was done on a whim of the
person who transcribed the speech. While somewhat
incidental, this can significantly change the way the
speech is read and interpreted and detracts from its
original meaning. Capitalization today only serves to
take away from the historical context of the speech
and the way in which Jefferson rhetorically crafts his

“Jefferson’s Draft of First Inaugural Address” (1801) “Presidents George Washington, Thomas Jefferson,
Theodore Roosevelt, and Abraham Lincoln, ‘Mount Rushmore
like in the case of “G/god” in the Declaration of
Independence, the lack of capitalization of these phrases National Memorial’” (2016)
would have forced people to think about these terms
more broadly and abstractly. Rhetorically, Jefferson’s
choice of “republican” and “federalist” thus seems to
have been designed to coax people out of lazy and
divisive readings of the terms and, in this, to make them
acknowledge that the partisanship that divided them
was based in a common political heritage—in a shared
commitment to abstract principles like federalism
and republicanism. Because this lack of capitalization
actually does a better job of getting Jefferson’s message

16 Kinder Institute

message with the use of both unifying language and
typography. Indeed, capitalization ultimately highlights
precisely the partisan divide that Jefferson devoted
time and nuance to mitigating.

1Joanne B. Freeman, “The Presidential Election of
1800: A Story of Crisis, Controversy, and Change,”
accessed March 7, 2016, https://www.gilderlehrman.
org/history-by-era/early-republic/essays/presidential-
election-1800-story-crisis-controversy-and-change.
2“1800 Presidential Election,” accessed March 7, 2016,
http://www.archives.gov/legislative/features/1800-
election/1800-election.html.
3Thomas Jefferson, “First Inaugural Address,” accessed
November 17, 2015, http://avalon.law.yale.edu/19th_
century/jefinau1.asp.
4Jefferson, “First Inaugural Address”
5Ibid.
6Kevin J. Hayes, The Road to Monticello: The Life and
Mind of Thomas Jefferson (New York: Oxford, 2008),
446-56.
7Declaring Independence: Drafting the Documents,”
Library of Congress, accessed January 31, 2016,
http://www.loc.gov/exhibits/declara/declara4.
html#obj3.
8“Engraving of the Declaration of Independence”,
accessed January 31, 2016, https://www.monticello.
org/sites/default/files/uploaded-content-images/
Declaration_Engrav_Pg1of1_doctored_0.jpg.
9Jefferson, “First Inaugural Address.”
10Jefferson, “First Inaugural Address,” accessed January
31, 2016, https://jeffersonpapers.princeton.edu/
selected-documents/first-inaugural-address-0.

Journal on Constitutional Democracy 17

How Susan B. Anthony Really
Changed America

Rachelle Engen

Susan B. Anthony, Frederick Douglass, and many later would result in the adoption of the Nineteenth
others set a precedent for challenging our nation’s Amendment granting women their fundamental right
founding documents, and though they may not have to vote. Because Susan B. Anthony refused to concede
achieved the full scope of their desired outcomes, their to exclusionary interpretations of individual rights, she
efforts, and the evolution that occurred as a result ultimately was able to play a large role in giving women
of their actions and words, are no less significant. In their well-deserved political voice. However, the effects
the midst of a violently divided nation, Anthony and of her speech are not defined by or confined to the
Douglass forced Americans to re-evaluate the true achievement of women’s suffrage. Her efforts also
meaning of “We the People” and, in doing so, sparked clarified and expanded the overarching concept of “We
the idea, still very much relevant today, that the nation the People” outlined in the Unites States Constitution.
should at all times be aware of and aim to close any gap
that exists between the United States’ founding ideals The Preamble of the United States Constitution reads,
and its social and political realities. “We the People of the United States in order to form a
more perfect Union, establish Justice, insure domestic
Determined to expose the wild injustice of using gender Tranquility, provide for the common defence, promote
as a basis for disenfranchisement, Susan B.Anthony gave the general Welfare, and secure the Blessings of Liberty
her famous “Woman’s Right to the Suffrage” speech in to ourselves and our Posterity, do ordain and establish
1873 after being arrested and fined $100 for casting a this Constitution for the United States of America.”1
ballot in the 1872 presidential election. In the speech, Shortened, the Preamble states, “We the People…do
she highlights that she and other women had long been ordain and establish this Constitution for the United
subjugated by white, aristocratic men who believed States of America.” Though it is beautifully crafted and
women inferior and thus unfit for political participation. sets the stage for an intricate and binding document,
Sarcastically and poignantly, she questions whether the Preamble still demands further scrutiny. Especially
women were even persons under the Constitution if we read it in the context of American history, we have
and, in refuting this notion, showcases that no part to ask: Who exactly was “We the People” intended to
of the nation’s founding document warranted their include or refer to? At first glance, the phrase seems
subordinate position in society. Through her famous quite inclusive; it could, that is, very well refer to all
words, Susan B. Anthony catalyzed a conversation that persons who resided in the United States of America
had been going on for some time and that five decades at the time of the Founding and thus could be read

18 Kinder Institute

as suggesting a truly collective confirmation of the “Help us to win the vote” (1914)
Constitution as articulating a common goal for
governance and a universal set of ideals and rights. once disenfranchised portions of the population.
Conversely, it could also be interpreted as referring
only to those individuals who had a hand in crafting In her “Woman’s Right to the Suffrage” speech,Anthony
and signing the Constitution. While neither of these effectively turns the language of the Constitution back
two “answers” is correct, the truth is that the Framers onto itself, using it to present an argument against the
intended for the phrase to be read and applied in a constraints it placed on citizenship. After quoting the
manner that was closer to the latter, more exclusive Preamble in its entirety, Anthony states, “It was we, the
reading. The political history of the United States people; not we, the white male citizens; nor yet we, the
makes clear that the Framers intended only to male citizens; but we, the whole people, who formed the
extend the rights of citizenship to individuals who Union. And we formed it, not to give the blessings of
were physically, socially, and economically similar liberty, but to secure them; not to the half of ourselves
to themselves: white, aristocratic, land-owning, and the half of our posterity, but to the whole people
educated males. Knowing this intended exclusivity – women as well as men.”2 Anthony’s argument for
and how it contradicted the natural rights philosophy
on which the United States was founded, individuals
throughout history have challenged the interpretation
and application of “We the People.” As a result, the

“I come before you to declare that my sex are entitled to the inalienable right to life,
liberty, and the pursuit of happiness.” –Victoria Woodhull

practical meaning of the phrase has evolved over time inclusion is made on a linguistic, poetic, and generative
to become more inclusive, a fact made evident by the level. On a linguistic and poetic level, through each
passage of constitutional amendments that granted hark of “Not we” Anthony uses repetition to illustrate
fundamental rights of citizenship—namely but by no the irony of how, by treating “We the People” as an
means exclusively— suffrage, to a growing number of

Journal on Constitutional Democracy 19

exclusionary phrase, the Framers (and subsequent historical fault. Specifically, in establishing that African
leaders of the nation) pervert the natural meaning of American males’ status as “persons born or naturalized
“we” as a pronoun grammatically incapable of being in the United States” entitled them to the “privileges
qualified. On a generative level, Anthony analyzes the and immunities” granted to citizens and to the legal
phrase “We the People” as broadly referring to those protection of their natural rights to “life, liberty, [and]
people responsible for establishing and perpetuating property,” the Amendment recognizes that the signers
the union and who, in turn, enjoy rights because they of the Constitution were too exclusive in their original
carry out these responsibilities. By pointing out how application of “We the People.” Anthony echoes this
the United States was born and re-generated out of a argument when, in appropriating the language of the
union of women and men, Anthony creates something Fourteenth Amendment, she claims that “women are
of a logical bind. Because the future of the nation— citizens; and no state has a right to make any law, or
establishing justice, providing for the common defense, enforce any old law, that shall abridge their privileges
promoting the general welfare, etc.—has been and will or immunities.”4 Anthony illustrates, here, how the
continue to be dependent on collective action, and 14th Amendment set the precedent for the continued
because citizenship is granted to those who contribute advancement or broadening of “We the People.”
to realizing this future, there are no reasonable Most important is her usage of “citizen.” Given that
grounds for excluding women from political society. It the Fourteenth Amendment establishes that African
only makes sense, Anthony argues, that women should American males are citizens and rights holders because
enjoy the rights associated with being imperative to the they are persons, Anthony posits that women must
continuance of the United States of America. also be considered citizens (and thus rights holders) by
virtue of the same logic.
Anthony then draws on the history of the Fourteenth
Amendment to further her argument for the inclusion Susan B. Anthony recognized the Fourteenth
of women in “We the People” by claiming that steps Amendment as a pivotal moment in the quest for
have already been taken to apply the phrase and extend equal rights, because it started to eradicate the heinous
the privileges that come with it to a greater portion of notion that “We the People” should only include
the population than the Framers originally intended. those who physically and economically resembled
Passed in 1868 as a result of southern states’ refusal the men who had a hand in penning the phrase and,
to acknowledge the rights that African American in this, foreshadowed further gains. She was, however,
male citizens were entitled to under the Thirteenth one of many public figures to use “We the People”
Amendment of the United States Constitution, the to demand that progress take place. Similar to how
Fourteenth Amendment reads: Anthony deployed the phrase in 1873, Frederick
Douglass invoked “We the People” in 1860 to call for
All persons born or naturalized in the United a reinterpretation of what the nation’s founding ideals
States, and subject to the jurisdiction thereof, truly stood for and to whom they extended.
are citizens of the United States and of the
state wherein they reside. No state shall make In “The Constitution of the United States: Is it Pro-
or enforce any law which shall abridge the Slavery or Anti-Slavery,” delivered to the Scottish
privileges or immunities of citizens of the Anti-Slavery Society on March 26, 1860, Douglass
United States; nor shall any state deprive any immediately poses the following question: “Does the
person of life, liberty, or property, without the United States Constitution guarantee to any class or
due process of law; nor deny to any person description of people in that country the right to enslave,
within its jurisdiction the equal protection of or hold as property, any other class or description of
the laws. 3 people in that country?”5 Given the protections that
the original Constitution offered to the institution of
In terms of the phrase under consideration in this slavery, the technical answer to Douglass’ question,
essay, the Fourteenth Amendment acknowledges of course, is “yes.” Douglass poses this question,

20 Kinder Institute

though, not only to excoriate the Constitution for the franchise to women, Douglass also appeals to the
its protection of slavery but also to suggest that the democratic process to resolve this perversion of “We
language of the Constitution could be used to argue the People.” He states, “I, on the other hand, deny that
against the practices it supported. After asking this the Constitution guarantees the right to hold property
rhetorical question, Douglass, referring again to the in man, and believe that the way to abolish slavery
Constitution, states, “Its language is ‘we the people;’ in America is to vote such men into power as well

“Its language is ‘we the people;’ not we the white people, not even we the citizens, not
we the privileged class, not we the high, not we the low, but we the people; not we
the horses, sheep, and swine, and wheel-barrows, but we the people, we the human

inhabitants; and, if Negros are people, they are included in the benefits for which the
Constitution of America was ordained and established.”

—Frederick Douglass

not we the white people, not even we the citizens, not as use their powers for the abolition of slavery.”7 By
we the privileged class, not we the high, not we the contextualizing the problem in terms of the framework
low, but we the people; not we the horses, sheep, and of a democratic process that might bring about a
swine, and wheel-barrows, but we the people, we the solution, Douglass implores his audience back in the
human inhabitants; and, if Negros are people, they are United States to acknowledge and actively engage
included in the benefits for which the Constitution of
America was ordained and established.”6 We see, here, “Her laws are one thing, her practice is
the logical structure from which Anthony’s argument another thing.”
is descended. Much like she did in 1873, Frederick
Douglass uses ‘not we,’ here, to point out a linguistic —Frederick Douglass
and logical perversion inherent in how the Constitution
was being applied in 1860. A phrase that should be all with the fact that the Framers very much intended for
encompassing, and that should extend benefits to all the Constitution to contain a means of righting any
people, “We the People” was being corrupted by the wrongs that it may have introduced. With regard to
fact that the rights of white males were being protected the Constitution’s promising access to the means for
not only instead of but also at the expense of the rights its own revision, Douglass goes on to state how “Her
of other persons. Douglass is doing much more than laws are one thing, her practice is another thing.”8
pointing out this linguistic perversion, though. By In plain and simple terms, Douglass captures both
himself perverting “we” to include animals—horses, the fact and the spirit of the Preamble as well as the
sheep, and swine—and inanimate objects—wheel- Declaration of Independence here: how the practice of
barrows—he underscores how the Constitution was constitutional democracy gives individuals the ability
being used not only to deny African American slaves to resist and propose changes to laws that ignore their
the rights to which they were naturally entitled but also rights and that they feel do not effectively promote the
to reduce “human inhabitants” of the nation to non- or ideals of establishing justice and securing the blessings
sub-human status. of liberty for “We the People.” As Anthony would 13
years later, Douglass empowers his audience not only
Like Anthony does by appealing to the Fourteenth to reinterpret the Constitution in a way that might
Amendment to make her case for the extension of

Journal on Constitutional Democracy 21

foster a more just application of “We the People” but United States Constitution.”
also to seize their constitutional right to act on this
reinterpretation—to succeed where the Framers failed. 1U.S. Const. Preamble.
2Susan B. Anthony, “Woman’s Right to the Suffrage,”
Both Susan B. Anthony and Frederick Douglass accessed May 11, 2016, http://www.nationalcenter.org/
did significant work to spark the philosophical and AnthonySuffrage.html.
practical evolution of the meaning of “We the People.” 3U.S. Const. amend. XIV.
By laying out to the population how the full potential 4Anthony, “Woman’s Right to the Suffrage.”
of this phrase was not being realized, they were able to 5Frederick Douglass, “The Constitution of the United
successfully advocate for the incorporation of African States: Is It Pro-Slavery or Anti-Slavery?” accessed May
American men and, later, all women into the political 11, 2016, http://teachingamericanhistory.org/library/
society to which “We the People” truly refers. Anthony document/the-constitution-of-the-united-states-is-it-
and Douglass’ practice lives on today, as work is still pro-slavery-or-anti-slavery/.
being done to further grow this political society to 6Ibid.
include and to extend rights to more and more groups 7Ibid.
and classes of disenfranchised people. Though much 8Ibid.
more work remains to be done, the United States 9James Obergefell, et al., Petitioners v. Richard Hodges,
Supreme Court case Obergefell v. Hodges (2015), for Director, Ohio Department of Health, et al., 576 U.S.
example, took great strides toward including members ____ (2015)
of the LGBTQ community in the phrase “We the
People” by granting individuals the rights due to them
as citizens under the Fourteenth Amendment. The
ruling stated that “changed understandings of marriage
are characteristic of a Nation where new dimensions
of freedom become apparent to new generations.”9
Drawing on the distinction that Douglass drew in his
1860 speech, members of the LGBTQ community used
the practice of constitutional democracy to challenge
present day laws that denied them the freedom of
marriage. We must conclude, then, that the phrase
“We the People” can and should be ever-evolving and
that it will continue to honor oppressed groups just as
it has done for over two centuries. With the work of
activists like Anthony and Douglass, “We the People”
can gain the interpretation it has denotatively had since
the day the United States Constitution was signed into
law. After all, “We the People” means all persons of the
United States of America, not “we the signers of the

“…the extension of women’s privileges is the general principle for all social progress.”
—Charles Fourier

22 Kinder Institute

Journal on Constitutional Democracy 23

24 Kinder Institute

Persuading (the Public)

Journal on Constitutional Democracy 25

“For Eagles to be Crows”

Andrew Wisniewsky

In 1876 Sitting Bull, a needed victory at the Battle

Lakota leader, undertook of Trenton. The General of

what would turn out to be the Continental Army was

a prescient protest against leading his own rebellion

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

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

nights; fifty pieces of flesh serialized biography of

were ritually sliced from Washington as possessing

his arms. He collapsed and “more unprovoked, useless

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

soldiers falling from their damning cruelty than was

horses, hats flying off their ever witnessed among

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

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

Little Big Horn, U.S. General

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

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

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

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

for their part, the Americans viewed the Hessians as

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

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

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

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

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

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

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

Fort Laramie Treaty of 1868, the Lakota people, who

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

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

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

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

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

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

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

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

profitable mines and build the Northwest Pacific

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

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

26 Kinder Institute

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

Journal on Constitutional Democracy 27

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

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

(1800)

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

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

28 Kinder Institute

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

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

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

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

(1906)

Journal on Constitutional Democracy 29

harnessed this fervor to dehumanize indigenous people Made apparent here is how these loving missionaries
through missionary rhetoric that established the moral were not above conversion-by-rifle, leading one to
necessity of conversion. “Surely here,” J.E. Brush wrote, question the intentions and validity of the missionaries
“is a mission-field that has chains on us as Christians to if the consequence for failure to convert was the sharp
train these children of the forest and plains, and help end of a bayonet. “To obviate their final demise may not
instruct them to love and serve God.”18 As “helpful” be in our power,” the above passage goes on to claim,
and “loving” as the missionaries’ work is made to seem “but we may, with God’s help, do something to prevent
here, the mere invocation of “chains” reveals both that them from dying in paganism.”20 It is clear that, all
conversions were necessary rather than optional and along, the goal of conversion was not to enlighten the
that resistance was thus punishable. In fact, it is clear Sioux to Western traditions and culture but to simply
what failure to convert would lead to: kill them: religious conversion was just a palatable
euphemism for the public.
We Catholics glory especially in the number and
grandeur of the edifices we erect for the worship To use indigenous religion to justify violent conflict,
of the father of all men, whether white, black, or the American press particularly aimed its ire at the
red; but in the actual warfare against paganism and Sioux “Ghost Dance” movement. The Ghost Dance
its concomitant evils the gun and the saber remain movement revolved around the revival of the old ways,
our most effective weapons and last resort.19 and it was born as a response to the stress placed on
the indigenous population following decades of violent
Edward Curtis, “An Oasis in the Badlands” (1905); U.S. conquest, forced relocation, and systematic
Washington Irving, “Washington Crossing the Alleghany River” eradication of their culture. Passionate religious
dances were believed to bring back the spirits of the
(c. 1857) dead, spirits that would force the white man off the
continent and restore the days of peace and unity.
This movement, as one might expect, was not popular
among the white population, despite its peaceful and
benign nature. One writer, for the popular American
periodical Outlook, had this to say when he traveled to
Sioux lands: “the red men imprisoned on their waste
lands try to satiate the cravings of this memory by
the savage ghost dance or any other form of heathen
revelry.”21 With “heathen revelry” and primal savagery
having manifested themselves as norms on Sioux
“waste lands,” only a complete cleansing, the author
implies, could redeem the region and make it habitable
for civilization. In fact, the fabricated danger of the
Ghost Dance movement, and Sitting Bull’s rumored
involvement in it, was ultimately the stated cause of the
fatal raid of Sitting Bull’s home by U.S. federal agents
in 1890.

III. Culture

Perhaps the most prevalent idea drawn on in the
justification of aggressive westward expansion was the
perceived need to civilize an indigenous population
that was resistant to this effort. Even Ulysses S. Grant, a

30 Kinder Institute

relatively progressive president in terms of his attitude John Gast, “Spirit of the Frontier” (1872); Emanuel Leutze,
towards the indigenous population, sought to “bring “Westward the Course of Empire Takes Its Way” (1861)
aboriginals of the country under the benign influences
of education and civilization.” His stated goal was the destined to be the great nation of futurity”27 and was
unification of their culture, but in reality, he sought to “destined for better deed,”28 but this conception of the
forcibly assimilate the indigenous population into the America being unique and sacred had been around
culture of white America (or, conversely, to forcibly since John Winthrop famously described the colonies
strip the Sioux population of their own culture). as a “City upon a hill.”29 Confirming the tradition in
Grant’s program was deemed the “Peace Policy,” and which his Manifest Destiny fell, O’Sullivan noted
its execution involved replacing the Federal Indian how “Our national birth was the beginning of a new
Agents with Christian missionaries who would teach history.”30 This idea, by O’Sullivan’s own claim, was
the indigenous population how to dress, speak, and not new; he simply defined it into plain terms.
farm like “good Americans.” Failure to adhere to these
civilizing policies would, of course, result in indigenous Still, Manifest Destiny was a large factor in propelling
people being run off their homeland by U.S. soldiers. America westward, with the people coming to feel it
their sacred duty to spread democracy and the American
This “civilizing” process was, then, neither optional spirit the width of the continent. Unfortunately for
nor genuine nor peaceful. The American Review stated the Sioux, the “width” of the continent included their
that if Sitting Bull “will not learn the art of civilization, home. The language of Manifest Destiny teemed with
he and his forest must perish together.”22 To be spared, themes of rebirth and resurrection, and the perceived
they had to “show…a readiness to abandon the wild sacredness of Western society and the institution of
life and learn to live as white people do.”23 Even praise democracy was the centerpiece of the concept as a
of Sioux culture was couched in terms that focused on whole. “It’s[sic] greatness, it’s[sic] duration, was always
its inferiority. For example, soldiers on the frontier
expressed surprise in discovering that the Sioux
understood the differences in American weaponry,
stating, “these savages understand the difference
between the infantry and cavalry gun”—knowledge
once thought to be beyond the mental capacities of
the “red men.”24 This impressed the U.S. soldiers on
the frontier, and the Sioux were deemed “the bravest
of their race.”25 The above statement, though, was
qualified with the postscript that it “may seem strange
talk to people who have been accustomed to believe
that one white man is equal to three Indians.” 26

IV. Manifest Destiny

The manufactured demonization of their race and
religion and the attempts at “civilizing” the Sioux were
necessary cogs in the process of western conquest
and expansion, the roots of which can be found in the
doctrine of Manifest Destiny. Originally coined by
journalist John L. O’Sullivan, who first used the term
explicitly in a column advocating for the annexation of
Texas in 1845, the basic idea had been preached long
before that. In O’Sullivan’s words, “our country is

Journal on Constitutional Democracy 31

proportionate to the democratic equality in it’s[sic] Greece, would have been invested with the lofty and
system of government.”31 Manifest Destiny adherents beautiful honors of a demigod.”34
felt that the “savage” natives were the antithesis to a
modern, civilized democracy that did not have room Sitting Bull died on December 15, 1890, on a
for the perceived pagan ways of the Sioux. Their way reservation in South Dakota. He and two of his
of life a thing of the past in the eyes of the West, the children were murdered by U.S. Federal Indian agents
indigenous population was “the last small remnant of attempting to arrest him for his part in the benign Ghost
barbarian life that limits the Republic.”32 The Sioux’s Dance movement.
very existence was a demerit to America’s glory, an
obstruction to the “greatness and duration” of the It was a normal morning at the Standing Rock
nation, and thus a disease to be cleansed. This language Reservation. U.S. agents had finally been given the
exposes why, for white Americans of the time, the orders to arrest Sitting Bull, the “accomplished liar,”
indigenous population could not simply be left alone and “the outlook for a massacre was excellent.”35
by the United States. However, what is willfully left
out of this discussion is now the dehumanization, The agents approached Sitting Bull’s home and
displacement, and destruction of a peaceful people is attempted the arrest. He refused, stirring the village
paradoxical to the very idea of “democratic equality” to anger. The police began beating him, followed by
that is supposed to embody the nation’s greatness and “leveling their Winchesters at the Savages.”36 Sitting
make possible its duration. In its quest for the spread of Bull was shot in the chest. “The Sioux, with a hideous
virtue and liberty, America thus betrayed its core ideals. yell, charged the police.”37
While admitting that this “necessary” purification
of democracy would not come easily, advocates of A riot ensued. Seven Lakota were killed, including
expansion at the time insisted: “the idea be dismissed Sitting Bull’s son Crow Foot, who was 13 years old.
that this desirable result can be reached without some Six policemen were killed as well. Sitting Bull was
hard and bloody fighting.”33 The cost of achieving the still alive following being shot in the chest, “but the
Nation’s destiny would be the blood of millions of police, obeying their instruction to the letter, made a
“savages”; this was a price America was willing to pay. good Indian of him without delay,”38 shooting him in
the head. A U.S. agent recorded the aftermath of the
V. The Tyrant’s Grip killing: “The women and children of the dead savages
made last night hideous with their wailing. They are
George Washington died on December 14, 1799, in in [the] charge of the troops and will be disposed of
his home on Mt. Vernon. He passed surrounded by his as Major McLaughlin directs.”39 He continued: “the
loved ones, servants, and slaves. bringing in of the dead bodies of Bull and his sons
caused a good deal of excitement at the agency.”40
His death was recognized across the globe; Napoleon
even ordered ten days of mourning across France. “Each man is good in His sight. It is
In the States, thousands wore mourning clothes for not necessary for eagles to be crows.”
months following the beloved first President’s death.
Memorial processions were held in every major —Sitting Bull
U.S. city, and Congress passed a joint resolution to
construct a marble monument to Washington in the The capture and death of Sitting Bull marked the end
Capitol. His physicians faced backlash and accusations of indigenous resistance to U.S. conquest and rule.
of malpractice; they had let an American hero die. The rebellion of the Plains Indians had been put to
rest, but the tyranny of the United States conquest was
George Washington would remain the preeminent not. Fourteen days after his death, the United States
symbol of American glory. The great “American military massacred over 200 Lakota men, women,
Liberator,” he possessed “a heroism which, in Old

32 Kinder Institute

WHEN THE CROWS STOP CALLING

Echoes of crow trembled the aspens

limp talons grazed storm clouds as they fell.

Earth softened their descent.

She pressed feathers

between clay and silt like petals

between book pages.



She cradled broken beaks

in her strata. She held their bodies

in a mausoleum. They petrified.

When the crows stopped calling,
the land the wind the sky
couldn’t mimic their melodies.

Ponderosa bowed their crowns shed their needles.

The sandstone cried.

The Ghost Dance stopped.

The Badlands were quiet.

Hoodoos wore veils to mourn the murders

buried in their late nests.

Crows flocked to Cheyenne to heal,

now the river ran dry.

Now, the aspens trembled in fear

and the spruce wilted.

-Sera Holland

Journal on Constitutional Democracy 33

and children at Wounded Knee. 20 U.S. soldiers The United States Democratic Review Volume 6, Issue 3
would receive the Congressional Medal of Honor (1839): 426-430.
for their role in the killings; more than a century of
forced integration, mistreatment, and deterioration 27Ibid.
of the Lakota and many other tribes would follow. 28Respectfully Quoted: A Dictionary of Quotations
The United States had broken the spirit of the Requested from the Congressional Research Service.
indigenous people of America and at last fulfilled its Washington D.C.: Library of Congress, 1989;
Manifest Destiny. Bartleby.com, 2003. www.bartleby.com/73/. [April 20,
2016].
1Graham’s American Monthly Magazine of Literature,
Art, and Fashion (July 1853): 33. 29Ibid.
2Ibid. 30Ibid.
3Ibid. 31“Who is to Blame,” American Catholic Quarterly
4Hamlin Garland, “Sitting Bulls Defiance,” McClure’s Review, 712.
Magazine (Nov 1902): 35. 32Our Correspondent, “Marching Upon the Sioux:
5Fred Copeland, “Sitting Bull’s Last Trial,” The Youth’s Notes from Indian Country,” New York Times,
Companion 94 (1920): 414. August 3, 1876, 5.
6Graham’s, 33. 33Grahams Art, Fashion, and Literature, 33.
7Rosa T. Shelton, “In the Country of Sitting Bull,” 34“The Death of Sitting Bull: Story of the Old
Outlook 10 (1898): 617. Medicine Man’s Last Fight,” New York Times,
8Herald of Gospel of Liberty 76 (1884): 647. December 17, 1890, 2
9Garland, “Sitting Bull’s Defiance,” 35.
10Ibid. 35Ibid.
11“In Sitting Bull’s Camp,” Christian Advocate (1879): 36Ibid.
572. 37Ibid.
12Shelton, “In the Country of Sitting Bull,”617. 38Ibid.
13“In Sitting Bull’s Camp,” Christian Advocate (1879): 39Ibid.
572 40Ibid.
14Ibid.
15Fred Copeland, “Sitting Bull’s Last Trial,” The Youth’s
Companion 94(1920): 414.
16New York Times Staff, “Sitting Bull’s Saddle: A Relic
of a Bad Indian Now In Possession of a New Yorker,”
New York Times, Feb 10, 1891, 647.
17Ibid.
18JE Brush, “Herald of the Gospel of Liberty,”647.
19“Who is to Blame for the Little Big Horn Disaster?”
The American Catholic Quarterly Review, (1876): 712.
20Ibid.
21Shelton, “In the Country of Sitting Bull,” 617.
22Ibid.
23Ibid.
24Ibid.
25Ibid.
26John L. Sullivan, “The Great Nation of Futurity,”

34 Kinder Institute

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

Lindsay McManus

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

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

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

Journal on Constitutional Democracy 35

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

to spend money during local and
national elections.”

—Justice Stevens

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

36 Kinder Institute

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

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

Journal on Constitutional Democracy 37

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

38 Kinder Institute

reporting requirements, failed to limit contributions, Not only did it lack regulative
and lacked effective enforcement.”7 authority; at the time of its inception,

In a state where ethics reform is so clearly needed— the MEC was not even given the
and in a nation where ethics laws have come so far bureaucratic disclosure responsibilities it
for such good reason—it speaks volumes about the possesses today (and it would not receive
negligence of Missouri that the legislature would turn
to a law passed in 1893 for guidance and standards. them until a decade later).
As does the fact that, when faced with a public outcry
for stricter forms of campaign finance regulation, the today (and it would not receive them until a decade
legislature passed a “watered down” bill that imposed later). At the end of the day, the MEC was a façade
“lax reporting requirements,” no contribution limits, created by elected officials to give off the impression of
and no effective means of enforcement, and, in this, that transparency and concern for ethics.
chose to privilege the First Amendment free speech
rights of donors over citizens’ civil right to be protected ACT III: Subtraction by Addition
from their these donors’ influence. If, in theory, the bill
marked legislators’ implicit acknowledgement of the In the wake of the creation of the MEC, proponents
potentially corrupting influence of private money on of stricter ethics regulations achieved what was their
the political system, in practice, it demonstrated their most significant victory to that point when, in 1994,
disinterest in taking a proactive approach to weeding Missourians overwhelmingly passed Proposition A,
out this corruption. which limited individual contributions to legislative
candidates and statewide officials to $100 and $300,
ACT II: A Glimmer of (False) Hope respectively (it should be added that the bill was at best
limited in the reform it could usher through, given that it
Following the “watered down” bill of 1978, the cycle imposed no spending limits, no limits on contributions
of progress continued to tilt toward and then back to candidates from state parties, and no required donor
away from reform. In the early 1990s, the Missouri disclosure...but I digress).9 As seems to always be the
General Assembly proposed a bill to regulate campaign case in Missouri, though, even the victories were
contributions and spending and to create disclosure partial and tenuous. Fearing the implications of the bill
mandates in order to “reduce the influence of special on their own reelection campaigns—and raising the
money on the political system.”8 Before the bill even question of why they would be responsible for writing
passed, however, the Cole County Circuit Court struck laws that apply to them in the first place—legislators
it down entirely, because the disclosure provision was quickly passed more generous ethics legislation that
believed to unconstitutionally compromise the right to session. Senate Bill 650 imposed individual donation
privacy of donors. contribution limits of $250 for legislative candidates
and $1000 for statewide officials and set very generous
During this time, and after a few unsuccessful attempts campaign spending “limits” of $30,000 to $1.5 million
with the Missouri Supreme Court, the legislature finally per candidate.10
passed a bill to create the Missouri Ethics Commission
we know today to ensure that whatever legislation The next year, Proposition A was upheld in Carver v.
was passed would be enforced. Though it seems Nixon, which ruled that the limits were not substantial
like an obvious step forward in the quest for stricter enough to be considered infringements on the freedom
ethics laws, the creation of an Ethics Commission of speech of donors or candidates. Despite this, Senate
nonetheless embodied the “one step forward, two steps Bill 650 prevailed after the 8th Circuit Court of Appeals
back” cycle. Not only did it lack regulative authority; at overturned the ruling of the Federal District Court on
the time of its inception, the MEC was not even given
the bureaucratic disclosure responsibilities it possesses

Journal on Constitutional Democracy 39

the grounds that there was unsubstantial proof that can and should be able to influence (and, in influencing,
the state had a “real problem with corruption or a potentially corrupt) precisely the democratic process
perception thereof as a direct result of large campaign that the high court championed.
contributions.”11 The “real problem,” here, is a total Case in point: In 2006, Missouri House Bill 1900
failure of logic on the part of the Circuit Court. removed maximum campaign contribution limits but
Specifically, by insisting on protecting the free speech introduced an in-session contribution ban and required
of big money donors, the state again negligently refused disclosure reports to be posted on the Missouri Ethics
(a) to acknowledge that it was opening up the possibility Commission website. However, the new law almost
that private interest could supersede the common good immediately was thrown out by the Missouri Supreme
in political campaigns, agenda setting, and law making Court on the grounds that the in-session ban violated
and (b) to seize its power to pre-emptively tamp out freedom of speech.13
the kind of corruption that over and over has stemmed ACT IV: The Fortress Falls (Again)
from large campaign contributions. Why, we have to In 2008, a Missouri statewide office election year,
ask ourselves, were Missouri politicians not content to Senate Bill 1038 reintroduced parts of House Bill
raise lots of small donations, rather than a few large 1900 (2006) by calling for the repeal of campaign
ones? Would that not be a more democratic expression contribution limits and the establishment of stricter
of freedom of speech?
Mayer in The New York Times, “A Lesson in Natural History:
In many respects, these questions were addressed in The Bull Moose and the ‘Dough’ Moose” (c. 1910)
1999, when Shrink Missouri Government PAC v. Nixon
went all the way up to the U.S. Supreme Court where disclosure requirements. Former Governor Matt
arguments were heard regarding whether or not “the Blunt signed the bill into law that year and defended
Missouri statute imposing limits on contributions its commitment to transparency, claiming that
to candidates for state office violated their First money exchanges were happening regardless and
and Fourteenth Amendment rights.”12 The PAC in that taxpayers might as well be able to see disclosure
question had contributed the maximum amount to Zev statements. Hardly a defense, the problem of ethics in
Fredman’s unsuccessful campaign for State Auditor, Missouri and the need for reform is encapsulated by
and they claimed that, without the limitation, they a Governor who acknowledges clear ethical questions
would have contributed more money and thus would but dismisses their significance by pretending, at the
have run a more effective (i.e., a successful) campaign.
Taken at face value, the Supreme Court ruling, which
upheld that the Missouri statute did not violate the First
Amendment, can be seen as a referendum on how the
truest expression of free speech within the context of
democratic elections is one in which victory is tied to
a majority of the people supporting a candidate with
votes and small donations, rather than one in which
big money sways the outcomes. What Feldman and
the PAC failed to account for, the court posited, was
that the interest in which the candidate concentrated
his efforts (and the PAC, its money) was simply not
reflective of the will of the majority. Placed within the
crucible of Missouri history, though, the outcome, even
though ethically favorable, exposes the “real problem”
that the state consistently fails to acknowledge, let alone
address: the whole premise of the PAC’s argument—a
premise that the state repeatedly supports—was that money

40 Kinder Institute

very coattail of his own executive term, that the only 1Donald P. Kommers, John E. Finn, and Gary J.
means of recourse the state has is disclosing these Jacobson, American Constitutional Law: Essays, Cases,
matters’ inevitable occurrence. and Comparative Notes (New York: Rowman &
Littlefield, 2009), 398
In 2010, Missouri lawmakers entertained hope that 2Citizens United v. Federal Election Commission, 538
true ethics reform was on the horizon when Senate U.S. 310 (2010).
Bill 844 passed. Among many proposed advances, SB
844 limited monetary transfers or “money laundering” 3Ibid.
between political parties and PACs; imposed stricter 4John Sides, Campaigns & Elections: Rules, Reality,
reporting requirements; made it a crime to obstruct a Strategy, Choice (New York: W.W. Norton, 2012) 89.
Missouri Ethics Commission investigation; and granted 5Guide to Ethics Laws 2015: A Plain English Summary,
the Commission authority to initiate investigations. Missouri Ethics Commission, accessed May 4, 2016,
However, only a couple years later, in Legends Bank v. http://www.mec.mo.gov/WebDocs/PDF/Misc/
State of Missouri, “SB 844 was ruled unconstitutional on EthicsGuide2015.pdf.
the technicality that it cover[ed] multiple subjects and
because, due to an oversight, banks were disallowed 6Ibid.
from making contributions to PACs.”14 Once again, this 7Kenneth D. Winn, “It All Adds Up: Reform and the
embodies just how much state lawmakers lack interest Erosion of Representative Government in Missouri,
in acknowledging real problems, much less igniting 1900-2000,” Website of Jason Kander, Missouri
real change. It’s simply a travesty when PACs are Secretary of State, accessed May 4, 2016, http://www.
getting progressive reform dismissed on technicalities sos.mo.gov/archives/pubs/article/article.asp.
and when the state itself is committing “oversights”
that rightfully allow it to happen. 8Ibid.
9“History of Ethics Legislation,” University of
ACT V: Moving Forward Missouri-St. Louis Center for Ethics in Public Life,
accessed May 4, 2016, http://cepl.umsl.edu/history-of-
Missouri Governor Jay Nixon, an official who has tried ethics-legislation/.
every legislative season to pass and keep ethics laws
on the books that would revitalize the public’s trust in 10Ibid.
elected officials, underscored the importance of SB 844 11“Missouri History,” Missouri Alliance for Campaign
and expressed his disappointment in its repeal when, Reform, accessed May 4, 2016, http://www.macr.org/
in a 2012 interview with Jo Mannies of the St. Louis pages/history.html.
Beacon, he lamented that SB 844 would have “cleaned 12Nixon v. Shrink Missouri Government PAC, 528
up Missouri’s political party committees, expanded U.S. 377 (2000).
contribution reporting requirements, and [taken] 13Trout v. State of Missouri, 231 S.W.3d 140 (2007).
numerous other steps to make government operate 14“History of Ethics Legislation,” accessed May 4,
in a more open and accountable way. Today’s ruling,” 2016.
the Governor continued, “leaves a significant hole in 15Jo Mannies, “Nixon, Ethics Commission Seek Redo
Missouri’s ethics laws, and the General Assembly must after Court Tosses Ethics Laws,” St. Louis Beacon, 15
move quickly to get a strong ethics bill on my desk.”15 February 2012, accessed May 4, 2016, https://www.
stlbeacon.org/#!/content/11342/nixon_ethics_redo.
The ruling even caused The Missouri Ethics 16Donna Walter, “Supreme Court Tosses Ethics Law,”
Commission to issue a statement on its own behalf, in Missouri Lawyers Weekly 26.8 (February 20, 2012) A1.
which MEC representatives claimed that the decision
“deals a blow to the Commission’s ability to enforce
and administer the law” before adding that they would
continue to work with the state legislature.16

Journal on Constitutional Democracy 41

42 Kinder Institute

Mongering (Fear)

The Other: Understanding the
Eugenics Movement through
Analysis of Language

Allison Pecorin

Society] has accepted the common-sense premise that there is something inherently
deviant (qualitatively distinct) about acts that break (or seem to break) social rules. It
has also accepted the common-sense assumption that the deviant act occurs because some
characteristic of the person who commits it makes it necessary or inevitable that he should.
Scientists do not ordinarily question the label “deviant” when it is applied to particular
acts or people but rather take it as a given. In doing so they accept the value of the group

making the judgment.

—Howard Becker, Outsiders1

Before the publication of Howard Becker’s Outsiders, labeled deviant only because of their inability to fall
deviance in general society was a subject of very limited within acceptable constraints. A fundamental problem
debate. Deviance was defined in terms of actions— with this system that Becker takes up throughout his
specifically, the breaking of “rules whose infraction work is the error of subjectivity that it introduces to
constitute[d] deviance.”2 These rules had a concrete the process of defining deviance. Specifically, he argues
place in daily life by virtue of their having been ushered that because the rules defining deviant behavior are
into legal or social being by individuals in positions of subjectively constructed, but the consequences are
power. As a result, society largely accepted these rules. objectively and uniformly doled out, individuals to
Eventually, deviance came to be viewed not just as whom the deviant label has been attached may unduly
a breaking of these rules but as an innate quality or experience formal and informal social sanction. A gray
characteristic of an individual that “makes it necessary area emerges, Becker’s theory posits, and injustice
or inevitable” that he or she breaks them. often seeps in.

Upon the publication of Outsiders, Becker ushered From this point of view, deviance is not
in a new era of sociological thinking that challenged a quality of the act a person commits, but
this view. His book introduced labeling theory to
the sociological agenda, a theory that suggests that rather a consequence of the application
individuals are deviant not because of some innate by others of rules and sanctions to an
character or quality but because of societal definitions “offender.” The deviant is one to whom that
that compartmentalize them (and their actions) as such. label has successfully been applied; deviant
According to Becker’s labeling theory, those individuals behavior is behavior that people so label.
who hold power in society manufacture deviance by
creating rules for acceptable behaviors, fostering a —Howard Becker, Outsiders3
situation in which people who break these rules are

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Becker’s work includes substantial evidence that the could justifiably occur. The process itself yields some
deviant label comes from an ever-present societal interesting implications about the perceived humanity
force, and a large component of his inquiry involves of the individuals it targets.
exploring the language used to define deviance and
the individuals and social groups who have the power CHAPTER 215.
to wield it. His work reveals a dangerous dynamic
wherein the power to define both norms and the AN ACT entitled an act to prevent procreation of confirmed
consequences of violating them is consolidated in the criminals, idiots, imbeciles and rapists; providing that
hands of a few—namely, individuals and groups with superintendents and boards of managers of institutions
political power, economic wealth, and privileged racial where such persons are confined shall have the authority and
and gender statuses. Given the relatively static nature are empowered to appoint a committee of experts, consisting
of this power distribution, this leads to an unchecked, of two (2) physicians, to examine into the mental condition
self-reinforcing power structure that allows subjective of such inmates.
definitions of norms to disenfranchise individuals who
fall not only outside of the normal patterns of behavior [H. 364. Approved March 9, 1907.]
but also outside of the group or groups that define what
normal is. These powerful groups ultimately have the Preamble.
Whereas, Heredity plays a most important part in
ability to create sanctions for “deviant” individuals that the transmission of crime, idiocy and imbecility;
can have devastating effects on their personal rights.
Penal Institutions—Surgical Operations.
Therefore, Be it
This paper aims to examine the inherent dilemma enacted by the general assembly of the State of Indiana, That
that this power structure presents by exploring the on and after the passage of this act it shall be compulsory for
language used to create a deviant label for those each and every institution in the state, entrusted with the
with mental illnesses from the mid- to late-1800s up care of confirmed criminals, idiots, rapists and imbeciles, to
through the eugenics movement of the 1900s. It will appoint upon its staff, in addition to the regular institutional
show the way in which language left many individuals physician, two (2) skilled surgeons of recognized ability, whose
who were labeled as mentally ill socially, politically, duty it shall be, in conjunction with the chief physician of the
economically and even geographically othered. As I institution, to examine the mental and physical condition
will also demonstrate, once applied, the deviant label of such inmates as are recommended by the institutional
and its ramifications were challenging to shake. Many physician and board of managers. If, in the judgment of this
individuals who came under the mentally ill label committee of experts and the board of managers, procreation
were never able to overcome it, even when substantial is inadvisable and there is no probability of improvement of
evidence of a lack of mental illness was presented. the mental condition of the inmate, it shall be lawful for
the surgeons to perform such operation for the prevention of
Perhaps the most poignant example of the forms of procreation as shall be decided safest and most effective5
disenfranchisement that individuals labeled as mentally
ill faced can be seen at the peak of the issue that this Of the two problems of language that this legislation
paper is examining – the early 1900s and the subsequent presents, the first is that it lacks a clear definition—a
eugenics movement. In 1907, Indiana became the first problem that arises precisely because it lacks a reliable
state to write the possibility of legally-institutionalized mode of defining. By creating a false parallel structure
compulsory sterilization into law.4 In doing so, they that equates terms with clear legal definitions, like
proved rhetoric’s (or, more accurately, the privileged “criminal” or “rapist,” with terms that are much vaguer,
rhetorician’s) power to define deviance and effectively “idiot” or “imbecile,” the drafters of this legislation
disenfranchise some subjected to the mentally ill label absolve themselves of needing to provide an explicit
by revoking their basic human right to reproduction. It definition for this latter set. Instead, they merely suggest
is important to note that this piece of legislation does that these terms are like in kind to (and by extension
not require forced sterilization of the entire community. subject to like sanction as) those in the prior, clearly-
Rather, it outlines a process wherein such sterilization defined categories and therefore place the medical
professional discussed in this document in a position

Journal on Constitutional Democracy 45

of highly subjective power to define what actually that deems procreation to be ill advised. This step of the

constitutes imbecility. This speaks to the second process is problematic for a multitude of reasons. First,

problem of language here: one of process. Though it raises questions about authority. The legislation states

there is an explicit process for doling out the sanction that such assessments are to be done by a select group

of disenfranchisement-via-sterilization, as I will discuss of expert medical professionals as well as members

in a moment, it is important to begin by noting that, of a board of advisors (who, not coincidentally,

given the leeway granted to medical professionals, no are responsible for choosing said experts). Their

such process is necessary for the application of the authority is essentially unchecked and thus invites the

deviant label—an application from which the problem potential for the kinds of subjective error and abuse

of disenfranchisement stems and with which every mentioned in this essay’s introduction. A self-selecting

other step in the process is intertwined. and powerful few get to make concrete assessments

After laying out how the of individual’s health and, more specifically, their

deviant label is “defined,” the ability to be parents to and

legislation clearly outlines to raise children. Secondly,

a four step process wherein the legislation leans on a

someone may be forced into eugenics-era form of thinking

sterilization. The first of these by assuming that mental

steps, as mentioned above, is illness is both hereditary and

highly and problematically fundamentally undesirable. If

subjective: the application one has a mental illness, the

of the deviant label by a legislation posits, one should

medical professional who has not reproduce, because

a wide berth to determine the society does not need or

standard by which deviance want any other individuals

is measured. In order to be like oneself—a position that

cleared for legal compulsory devalues the basic idea of

sterilization, one must first human worth. Individuals

be deemed a “confirmed Karl Pearson, “The groundwork of eugenics” (1909) being (subjectively)

criminal, idiot, rapist, or considered for sterilization

lose their personhood and
imbecile.” The legislation is clear from here – apply the dignity with the (subjective) assessment that society
label, then follow the remaining three steps to deem would be at an inherent disadvantage through the
eligibility for sterilization. Without the label, the entire production of more individuals like them. This
piece of legislation crumbles.
sort of rhetoric is not limited to the Indiana statute.

The second part of the process requires that one then Twenty years later, using this same strain of thinking,
be institutionalized. In a sense, this legislation yields the United States Supreme Court ruled in favor of
to the othering that Becker outlined. The immediate forced sterilization of the intellectually disabled in
impact of the application of the deviant label, according the landmark case Buck v Bell (1927). In the majority
to Becker, is the act of making one an outsider. In this opinion, Justice Oliver Wendell Holmes concludes that
case, the label is applied, and those labeled mentally “three generations of imbeciles is enough” and that the
ill are promptly pushed to the fringes of society, an forced sterilization of the mentally ill is permissible for
outcome that is tolerated in large part because of the the good of society.6

subjective association of mental illness with criminality Of course, even a determination that one is unfit to
that the legislation promotes. reproduce does not necessarily mean sterilization in

The third step in the determination of legal compulsory the case of the Indiana legislation. There is a fourth
sterilization involves a mental and physical assessment step even after reproduction is deemed ill advised, and

46 Kinder Institute

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

Journal on Constitutional Democracy 47

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

48 Kinder Institute