Life Stages: Birth

What does it take to be born an American citizen? And then, once you are, how do you prove it? And what does it get you?

We talk to Dr. Mary Kate Hattan, Dan Cassino, Susan Pearson and Susan Vivian Mangold to find out where (American) babies come from, and what that means.

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Episode Segments

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TRANSCRIPT

Hannah McCarthy [00:00:08] I want to start this episode at the very beginning.

[00:00:16] Of everything. I mean I want to start this episode the way everybody starts.

Mary Kate Hattan [00:00:25] I love that moment when you see a mother or a family meet their newborn for the very first time after all these months of anticipation. I continue to find it to be one of the most moving things I have ever been lucky enough to be present for.

Hannah McCarthy [00:00:43] This is Dr. Mary Kate Hatten. It's such an honor to be there. We'll never get old for me.

[00:00:51] Mary Kate is a family medicine physician who practices obstetrics at Concord Hospital in New Hampshire. She cares for pregnant mothers. She delivers babies and ideally she becomes that baby's doctor once they enter the world.

Mary Kate Hattan [00:01:04] I think most people are amazed that in the end the most important part is when you actually meet your baby. And sometimes I think those moments when you first realize Oh my goodness there's this whole baby I need to take care of. I think sometimes that can be surprising.

Hannah McCarthy [00:01:20] So Nick, you have experienced this moment twice.

[00:01:24] The birth of a new baby.

[00:01:26] Did did you feel like instinct kicked in or were you a little...

Nick Capodice [00:01:31] Absolutely terrified. I couldn't believe I couldn't believe they let me take it home. She. Couldn't believe they let me take it home in the car after he was born.

Hannah McCarthy [00:01:39] So you had no idea what to do.

Nick Capodice [00:01:42] I'd read a lot of books.

[00:01:44] I had a lot of people's advice but when it's the real thing yeah I didn't know what to do.

Hannah McCarthy [00:01:48] Well luckily even if you are one of the many parents who don't immediately know what to do with this tiny human you're responsible for there are systems in place to make sure that that baby gets off on the right foot.

[00:02:07] Mary Kate made clear that there are plenty of ways to have a baby in theU.S. but best practices dictate important steps for doctors and nurses to take.

Mary Kate Hattan [00:02:16] So after her baby is delivered were immediately making sure that the baby's breathing that the baby has a nice tone and is able to move. We're hoping that the baby cries and we check that both at the first minute. The baby's been born and again at five minutes to help give an idea of how the baby is transitioning as it's delivered.

Hannah McCarthy [00:02:39] I love this idea that this human enters the world and immediately there's this transformation going on because they're adapting to life on the outside. And meanwhile the person or people who brought this child into the world they are adapting to my role as your physician is to make sure I tell you the up to date guidelines and recommendations and to tell you.

Mary Kate Hattan [00:03:03] What we consider to be safe to practice and how to keep your babies thriving and healthy. But ultimately we're a team. And parents know what's important for their child. And I trust parents instinct. And while I can advise them medically on things I also trust that they love that child and that they're going to work with me to let them know what's working and where they need more support and for things that they may not be working for them.

Hannah McCarthy [00:03:28] So doctors like Mary Kate are going to make sure that the baby's eating trying to coach the mother through breast or bottle feedings monitoring for jaundice weight gain making sure the parents have a car seat making sure that that baby can breathe in that car seat and if this baby is born in America.

[00:03:48] While there are a lot of other gears that start to grind but before we pull back the curtain on starting your life in the United States. Care to introduce yourself my fellow American?

Nick Capodice [00:04:04] I'm Nick Capodice.

Hannah McCarthy [00:04:05] And I'm Hannah McCarthy and today kicks off the first in our six part series on bureaucracy and you.

Nick Capodice [00:04:11] Our Civics, ourselves, if you will.

Hannah McCarthy [00:04:14] It's the way that government that law the institutions interact with you mold you shape you control you and help you over the course of your lifetime from birth.

Nick Capodice [00:04:28] To death.

Hannah McCarthy [00:04:33] And today we're gone. Brass tacks absolute basics. The facts of American life before you lived very much life at all. Facts like I can't name my baby. The exclamation marks I'm.

[00:04:46] Actually naming laws vary from state to state so that's kind of a case by case basis kind of thing. And anyway the name is not nearly as important to being an American as the circumstances of your birth.

Nick Capodice [00:04:59] So where you're born and who your parents are.

Hannah McCarthy [00:05:02] Exactly. And it may sound obvious but those facts mean everything in the US.

Dan Cassino [00:05:09] So this goes back to the 14th Amendment.

Hannah McCarthy [00:05:10] Say hello to Mr. Dan casino Professor of Political Science at Farleigh Dickinson University. He is also a generous repeat guest on the show. The reconstruction period after the Civil War ended up defining citizenship because we changed the constitution in a really major way back then.

Dan Cassino [00:05:29] The Civil War movement the 13th 14th and 15th amendments.

[00:05:32] And these are they are in order to try and protect the rights of freed slaves in the southern states and make sure the southern states treat everyone equally because obviously they didn't want to. That's why we had a civil war.

Nick Capodice [00:05:42] How did the Reconstruction Amendments apply to babies being born today. Those amendments were designed to treat a very specific problem right.

Hannah McCarthy [00:05:50] They were.

[00:05:51] But in fixing that problem we changed something huge after the emancipation of thousands of enslaved people. There was this problem. These people had been counted as three fifths of a person before the Reconstruction Amendments but they were not citizens they didn't have any rights. Then Congress passes an amendment saying OK slavery is now illegal. So we've got a bunch of free Americans their citizens right.

Dan Cassino [00:06:22] So the state of Georgia could decide who's a citizen of Georgia and who's not. And of Georgia gives certain rights to citizens of Georgia we don't give to noncitizens of Georgia. Why does that matter. The fear was after the Emancipation of the slaves the state of Georgia was gon decide all those newly freed African-Americans while they might be federal citizens but they're not citizens of Georgia. So we don't have to give them any rights under the state constitution of Georgia.

[00:06:44] So the 14th Amendment is trying to get rid of that possibility.

Hannah McCarthy [00:06:46] The 14th Amendment shows up to say look everybody who is born in the United States is a citizen of both the United States generally and the state in which they reside.

Nick Capodice [00:06:58] So before that what made you a citizen.

Hannah McCarthy [00:07:01] That was actually up to the states which is why there was that risk that proslavery states would deny citizenship to newly freed people. But after the 14th Amendment.

[00:07:11] If you're born here you're a citizen.

Nick Capodice [00:07:16] So this is a birthright citizenship right. Is that what we call it.

Hannah McCarthy [00:07:19] Exactly. Citizenship is your birthright if you're born on American soil or to American parents for the most part. There are some exceptions having to do with how long your American parent resided in theU.S. or was working for theU.S. abroad. Also Nick Here's a wacky one a person is a citizen. If they are of quote unknown parentage found in theU.S. under the age of five. And if nobody can prove they were born elsewhere before they reach the age of 21.

Nick Capodice [00:07:49] How often does that happen. How many people achieve citizenship that way. It sounds almost Dickensian but so it sounds like your very best bet is being born onU.S. soil.

[00:07:59] Yes but that is an aspect of birthright citizenship that people debate heavily because there are a lot of people who feel like noncitizens use birth onU.S. soil as a way to game the system.

Dan Cassino [00:08:15] Well because it means that if you are not a citizen and you show up the United States and you have a baby that baby is a citizen and there's nothing anyone can do about that as long as they're born in the United States. And this has led to a growth of what's called birth tourism in the United States. We're well here foreigners from around the world come the United States and Saffren birthing suites hospitals in major cities and give birth there in order to give their child a chance at Americans is when that child becomes an adult.

Nick Capodice [00:08:41] But to be clear it isn't actually gaming the system it's the law it's totally legal.

[00:08:46] And right now in the U.S. babies born here ge tU.S. citizenship.

Hannah McCarthy [00:08:49] Yes except for the babies of foreign diplomats there's this clause in the 14th Amendment that says you're a citizen if you're born in theU.S. and quote subject to the jurisdiction thereof. But foreign diplomats are not subject toU.S. courts or authorities they have diplomatic immunity.

[00:09:08] All right. So not subject to the jurisdiction thereof equals not a citizen but if we're looking at a non diplomat's baby born on American soil we are looking at an American baby. Even though people argue about the correct like being swaddled in an American flag.

Hannah McCarthy [00:09:24] Or like have you ever played the Sims?

Nick Capodice [00:09:27] A little bit.

Hannah McCarthy [00:09:28] You know that green diamond that floats over their heads?

Nick Capodice [00:09:31] What's that called?

Hannah McCarthy [00:09:32] It's called the plumb bob.

Nick Capodice [00:09:33] An American plumb bob.

Hannah McCarthy [00:09:34] An American plumb bob floating over your head except your plumb bob is invisible because you know yeah you've got citizenship but you can't actually enjoy it until someone makes it official.

Nick Capodice [00:09:50] So you can be a U.S. citizen but not actually get any of the benefits of being a U.S. citizen.

Hannah McCarthy [00:09:54] Right. Because how can I know that you're really a citizen.

[00:09:58] I mean I got to have it in writing.

Nick Capodice [00:10:02] When you're born the first thing you have to do is register the birth with the government to let the government know that someone has been born here and generate a birth certificate from that and that person is a legal document.

Nick Capodice [00:10:12] It's kind of like if a tree falls in a forest does anybody hear it.

Hannah McCarthy [00:10:16] Right. In this case if no one writes it down authorizes it. The question is did it really happen.

Susan Pearson [00:10:23] So if you have no birth certificate and you are not white you are much more vulnerable.

Hannah McCarthy [00:10:32] This is Susan Pearson. She's a history professor at Northwestern University and she's working on a book about birth registration in the U.S.

Susan Pearson [00:10:40] Right. You are vulnerable. If something goes wrong if you're picked up by the police to deportation. Although we have near universal birth registration in theU.S. the more on the margins you are the less likely you are to have your birth registered.

Nick Capodice [00:10:59] So she's talking about American citizens getting deported.

[00:11:02] Does that happen.

Hannah McCarthy [00:11:03] It's actually estimated that thousands of Americans are detained or deported every year in theU.S. And your role honorable enough just having a certain last name or looking a certain way but if on top of all that your American birth was never registered. You are in real trouble. How do you prove that you're a citizen. There is this pretty well known story of a young woman in Texas whose birth was unregistered and who had very few official records of her life.

Alicia Faith Cunningham [00:11:32] My name is Alicia Faith Cunnington and I'm aU.S. citizen by birth. However I was born at home and my parents neglected to file a birth certificate for a birth record of any kind. They also never got me Social Security number.

Hannah McCarthy [00:11:46] Now in Alicia's case immigration is not exactly breathing down her neck. She is a white woman. However she can't get a passport she can't get a driver's license.

Susan Pearson [00:11:57] Her home state of Texas as a result of her case ended up passing a law which basically made it a criminal offense for parents not to register their children's birth.

Nick Capodice [00:12:12] Alright for some people there's this threat of deportation.

[00:12:14] And they're not able to get a passport driver's license or Social Security card.

Hannah McCarthy [00:12:18] Also think about all of the other inconveniences that could crop up a birth certificate doesn't just prove that you're a citizen. It proves your age and think about all of the age restrictions in the U.S. At 16 you can go to adult prison at 18. You can vote at 21. You can drink at 35 you can run for president without your birth certificate. Legally speaking you do not have an age. But if you go back even 100 years in the U.S. the whole age thing is not as big of a deal.

Susan Pearson [00:12:51] A lot of people in the 19th century and even into the 20th century actually didn't know exactly how old they were and didn't actually know exactly what their birthdays were or what their children's birthdays were.

Hannah McCarthy [00:13:05] Or if you did bother to make note of your child's birth it was probably in the family Bible or maybe your church took note of the day when your baby was baptized. But it wasn't exactly an official document.

Nick Capodice [00:13:17] What about the president thing you have to be 35 years old that's in the original Constitution. And aren't there age requirements for senators and reps and that sort of stuff.

Hannah McCarthy [00:13:25] There are. But then again when the framers wrote the Constitution they weren't expecting anyone other than wealthy white literate landed gentry to end up in office. And at the time if anyone was having their birth recorded it was those upper class people.

Nick Capodice [00:13:41] So possessing the knowledge of your age is like defacto privilege of its own back in the day. Like the framers probably knew their own birthdays right.

Hannah McCarthy [00:13:49] And then the cobbler let's say who made James Madison shoes he might be able to estimate his age based on family lore and rough dates. It's like the further away you get from privilege and power the further you get from that specific birthday.

Susan Pearson [00:14:05] Frederick Douglass the famous abolitionist and escaped slave begins his autobiography by saying that he doesn't know when he was born and that slave owners kept this information from their slaves and that this was for him evidence of the way that African-Americans under slavery were treated like chattel like animals right and not like human beings. But in reality a lot of plantation owners actually did keep records of the births and deaths of their slaves.

Hannah McCarthy [00:14:48] So even though not really knowing your age was not uncommon. There is something special about age even in the early United States withholding birthdays even when they knew exactly when an enslaved person was born was a way for slave owners to further strip that enslaved person of identity and power and access because age does have this elevated status in our Constitution.

Susan Pearson [00:15:19] Voting. Serving in elective office serving on a jury. Those kinds of things that we understand as being sort of primary ways that we would distinguish a democracy from another kind of form of government.

[00:15:35] Those are actually all bounded by age. Even before there's birth registration and therefore a really easy way for people to show how old they are. We already have rules about what you can and can't do as a citizen based on your age right.

[00:15:54] I'm thinking about today and we often use age as this marker for what you can't do but you can't get married or drive a car or work most jobs. If you're under a certain age when did that all start.

[00:16:05] Child labor laws start getting passed again this starts in New England like birth registration does in the middle of the 19th century. As soon as you start having really. Factory labor. And you know the factories of the mid 19th century or not the factories of the 20th century but people start to get a little worried about you know is it good for their bodies to be in these more dangerous working environments.

Hannah McCarthy [00:16:31] So we started to look at little kids working in mills and being horribly injured and we started to think you know what maybe we shouldn't let those little kids work in those mills. But change came slowly.

Susan Pearson [00:16:44] I mean most of the earliest child labor laws had no provisions for proof of age in them at all he would just say something like You know you can't work in the cotton mill unless you're over the age of 14.

[00:16:57] And so people would just show up and whoever's doing the hiring at the mill would say well how old are you. Zahm for two you'd say whatever the law said right. I mean it might be true or it might not.

[00:17:10] And they say Okay!

Nick Capodice [00:17:13] That makes no sense. What have you ever particularly tall or strong 11 year old and mom and dad are quite sure how old they are so they might as well say 14 so the good can get to work.

Hannah McCarthy [00:17:22] Exactly that's the problem. That age requirement is all well and good but it doesn't mean anything if you don't actually know how old you are. Or if people can fudge the numbers which they do and that's around the time the National Child Labor Committee starts ramping things up.

Susan Pearson [00:17:39] And they think that a lot of children are working under age in factories right.

[00:17:44] And so they press states to pass laws that are little more stringent that have some kind of enforcement mechanism that have some kind of system where instead of just walking into the factories hiring office and saying OK I'm here and the supervisor being late great. You know here's a broom go sweep the floor. They want to say that the child has to present.

[00:18:07] Some kind of proof of their age. And in most places this is an affidavit of age which is supplied by going to a local notary public.

Hannah McCarthy [00:18:20] Close to a birth certificate but no cigar.

[00:18:23] It ends up being basically the same situation as before mom and dad can just say little Janie is 14.

Susan Pearson [00:18:30] But then there was this big investigation in 1895 in New York City done by the state legislature. There was a widespread feeling among again Child Labor opponents that this function was no better than parents walking into employment offices with their kids right because notaries are getting paid for performing the service. They don't care. They're not law enforcement officers. They want to get their 25 cents and their view of their job is I don't decide the truth I just certify that a person said this to me. Right. So there's this big exposé of the notary system and child labor opponents really begin to press for what they call documentary proof of age.

Nick Capodice [00:19:24] I love a good exposé. They get things done.

Hannah McCarthy [00:19:27] Yeah this one is no exception. Child Labor opponents took a long hard look at the system and they decided that they knew what to do. There's only one way to ensure an accurate age for a kid a baby must be registered when they are born.

[00:19:42] And in a narrow window, too.

Susan Pearson [00:19:43] Could be three days it could be three months but the point is that there's no incentive for anyone to lie at the time that a birth is registered right. You're not thinking well if you know 12 years from now I'm going to want to say that Jaynie is 14 and not 12. Right. The other thing about birth registration laws is that in most places they make the duty to report the birth. The job of the birth attendant.

Hannah McCarthy [00:20:19] The system isn't perfect right. For example there were a lot of immigrants coming to theU.S. at this time and they were out of luck when it came to proving their age and the race listed on a birth certificate was a weapon in the hands of those who sought to disenfranchise people of color in theU.S. but ultimately we did get to nearly 100 percent of births being registered in this country.

Nick Capodice [00:20:42] Nearly but that nearly kind of trips me up because at this point in American history that birth certificate is the golden ticket. Right. I mean that not only does it help keep you safe from deportation. It also helps get you a license passport register for school get married get a Social Security card.

Hannah McCarthy [00:20:59] Yes. Also by the way the social security card that is another big one in terms ofI.D. in theU.S. And so there's this box that you can check off when you get your birth certificate and the Social Security Administration will send you one. But if you missed that boat you end up having to prove your citizenship in another way to get a delayed social sometimes or religious or hospital record is enough. But that can be a real catch 22.

Nick Capodice [00:21:23] OK so do we have a right to birth certificate. Are my rights being violated if my parents don't register me.

Susan Pearson [00:21:28] I mean it's it's so basic to be able to establish who you are. Right. And so for parents to deny that to children it comes to be seen as almost as criminal and in fact theU.N. has a charter of children's rights which was passed in 1938.

Nick Capodice [00:21:46] Yeah but that's the U.N. I mean it's not our Constitution.

Hannah McCarthy [00:21:52] Well no this is actually a state's thing. So all states have some kind of language in their statutes that requires a physician midwife parent or some other person present at a birth to register the birth of that child usually within five to ten days in some cases. If a doctor or a midwife fails to do this they can have their license suspended until they register that baby.

[00:22:15] But there are still people who don't register their child's birth for other reasons.

Susan Pearson [00:22:21] They're part of the sovereign citizen movement right. And they say are people who see a kind of very libertarian. You write that you see registering your birth as a form of submission to the state that is illegitimate.

[00:22:36] And that is giving up a piece of your autonomy in a piece of your sovereignty.

Hannah McCarthy [00:22:41] It's not just disenfranchised or marginalized or poor or rural populations that may be susceptible to not receiving a birth certificate. There are people out there who say look you can't make me submit to the government and you can't make me force my child to do that either. But some of these kids do grow up wanting a birth certificate for various reasons they might want to get a legal job or travel for instance. But it's much harder to prove where and when you were born when you're 18 years old.

Nick Capodice [00:23:16] It's amazing to me that this piece of paper this hallmark of boring bureaucracy is like the key to the whole city. But what do you get for that.

[00:23:26] If the birth certificate is the key to protections and privileges what are those protections privileges.

Hannah McCarthy [00:23:32] Like right out the gate.

[00:23:34] What do you get the minute you come wailing into this world?

Nick Capodice [00:23:38] Yeah.

Hannah McCarthy [00:23:38] OK. Day one. You're a brand new person here in theU.S. What does that make you in the eyes of the Constitution?

Susan Mangold [00:23:45] Children have rights as citizens of the United States. And then they have some rights even when they're not citizens of the United States based on case law or statutory law rather than constitutional law.

Hannah McCarthy [00:24:00] This is Sue Mangold chief executive officer of the Juvenile Law Center. It's a nonprofit that advocates for the rights of children in theU.S.

Susan Mangold [00:24:08] So usually when you try to understand the constitutional rights of children you begin with a series of Supreme Court decisions. Meyer Prince Pierce Yoder.

Hannah McCarthy [00:24:23] The interesting thing about these cases is that they weren't actually brought on behalf of the children. They're about what and how a teacher can teach her how a parent or guardian raises a child. Because when it comes to what you get as this new young person in America a lot of that has to do with the adults around you. What are their rights when it comes to you.

Nick Capodice [00:24:46] They're pretty limited aren't they?

Hannah McCarthy [00:24:48] Yes and No.

[00:24:49] You solve this principle of a parent raising a child as they see fit.

Susan Mangold [00:24:55] This balance between parental rights children's rights and state's obligations. And so you know there's a whole line of cases around states being able to order medical care and it's more or less limited to when you know the medical care is widely approved and is lifesaving. But there's you know cases on the margins that don't require quite as high a standard. And in terms of education parents can educate children at home they can send them to private schools they can send them to public school. But there are quite extensive state regulations even of home schooling. And so the parents can make choices but they are limited again.

Hannah McCarthy [00:25:42] Sue describes this triangle of parents rights children's rights and states rights and children's rights have a lot to do with not being abused and not being neglected and also being educated. And the states are the ones who enforce those rights.

Nick Capodice [00:25:58] What if somebody under the age of 18 decides her parent is just not for them. Can they divorce their parents?

Hannah McCarthy [00:26:06] They can. That would be emancipation.

Susan Mangold [00:26:08] Children seek emancipation all the time. They seek access under a range of laws that give them access to health care and reproductive health care mental health care and addiction services without their parents consent. Mindful that their parents would not consent but the laws for all kinds of public health reasons give the child their own right to seek the services even if they're well below the age of 18. And again that depends on the state's laws.

Nick Capodice [00:26:57] It seems like the story of children's rights in the U.S. At its simplest is about our understanding children as hokey as that might sound.

[00:27:08] Like we went from looking at them as many adults to thinking of childhood as this separate stage of life thinking. Maybe that means they shouldn't operate heavy machinery in a mill or get married. Finally realizing they need extra defence against abuse and neglect. It's taken hundreds of years. Which is funny because people think you're just going to magically know what to do and you have a baby of your own. But as a nation. We still aren't really sure how to raise a kid.

Hannah McCarthy [00:27:39] No it's been slow progress. But being born in America.

[00:27:44] I think increasingly means that you're being looked out for. And I think there's also. An increasing attempt to listen to young people. Whether that's literally or by looking at their brains and development.

[00:28:00] And as with all shifts in our democracy when you give a group a voice the system starts to respond.

Nick Capodice [00:28:07] Yes and kids do have a voice. All right. That's actually one basic right. We didn't get to in this absurd.

Hannah McCarthy [00:28:14] Yeah I was kind of thinking that's better suited to an episode about schools.

Nick Capodice [00:28:19] I see where you're going here.

Hannah McCarthy [00:28:20] That's next time on civics 101.

[00:28:34] This was just the beginning. There's a whole lot of life to live here. It's Civics 101 and we're making our way through those life stages. Next stop school.

Nick Capodice [00:28:43] And there's a whole lot left to learn too. You can check out more information about being born in America and all of our upcoming episodes at Civics 101 podcast dot org.

Hannah McCarthy [00:28:52] This episode was produced by me and McCarthy with Nick Kapit each day our staff includes Jackie Helbert Ben Henry and Daniela Vidal Ali. Erika Janica is our executive producer.

Nick Capodice [00:29:02] Maureen McMurry really considers herself more of a citizen of the world.

Hannah McCarthy [00:29:05] Music in this episode by Shaolin Dub. The 126ers, TextMe Records, HiDi, Blue Dot Sessions, Frederic Chopin, and Johannes Brahms.

Nick Capodice [00:29:14] Civics 101 is a production of New Hampshire Public Radio.

Hannah McCarthy [00:29:19] Mom and Dad can just say little Janie is 14.

Nick Capodice [00:29:24] Janie! Mary, Janie! Don't you remember me? You know what that is right?

Hannah McCarthy [00:29:30] Yeah, that's a good Jimmy Stewart.

Nick Capodice [00:29:30] Now, I - I - I - I wanna make a boys camp. I wish I had a million dollars.

[00:29:39] Hot dog!

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: The Bill of Rights

The Bill of Rights is the first ten amendments to our Constitution. Why do we have one? What does it 'do'? And what does it really, really do?

Our guests are Linda Monk, Alvin Tillery, David O. Stewart, Woody Holton, David Bobb, and Chuck Taft.

Each Amendment could be (and has been) its own episode. Except maybe the Third Amendment. So if you don't know them by heart, take two minutes to watch the video below.

Graphic Organizer: Have students take notes on this sheet while they listen to the episode

Episode Segments

More Resources

Want to play Bill of Rights: Survivor? Chuck Taft has shared his lesson plan here.

We have spent more time on the Library of Congress’s primary source page than anywhere else during this series, click here to see the original proposed amendments, Jefferson’s ratification tally, and a lovely illustration of a tub to a whale.

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TRANSCRIPT

 NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Founding Documents: Bill of Rights

[00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.

Chuck Taft [00:00:04] Hi this is Chuck Taft at University School of Milwaukee. I'm unable to get to the phone right now so if you would please leave your name number. Brief message and most importantly your favorite person in American history. I'll get back to you as soon as I can. Thank you.

Hannah McCarthy: [00:00:18] Who is this Chuck Taft?

Nick Capodice: [00:00:19] He's a high school history teacher. And I called him up because he plays this game with his class called Bill of Rights survivor.

Hannah McCarthy: [00:00:28] How on earth do you play that.

Chuck Taft [00:00:33] So Bill of Rights survivor is obviously based on the fantastic reality TV show Survivor of which I'm a big fan. The idea is that we're going to use amendments two through ten and then students are going to try to figure out which amendment should be the sole survivor a Bill of Rights island.

Hannah McCarthy: [00:00:50] Does he give the kids torches?

Chuck Taft [00:00:53] I do actually. You know the little LED candles, and then I have a Bill of Rights mug. I also hide immunity idols in the room. Like two little bits of paper.

Nick Capodice: [00:01:04] The students are assigned amendments and they present speeches as to why theirs is the most important. Everybody votes the losing amendment is called up to the Bill of Rights mug.

Chuck Taft [00:01:13] And I say you know that the tribe has spoken

Nick Capodice: [00:01:19] It's time for you to go. Seventh Amendment.

Hannah McCarthy: [00:01:21] This is so excellent. I imagine the students will walk away with this profound love and respect for the Bill of Rights.

Nick Capodice: [00:01:29] They do. But there's another teacher that I adore, Woody Holton from University of South Carolina.

Woody Holton: [00:01:35] I want you to call me Woody if you don't mind but my legal name is Abner. He's in the Bible and he killed his father. So who gives that name to their son. I play an obnoxious game with my students when I ask them "OK tell me specific things, don't talk in generalities about liberty and freedom, be specific. What specific clauses of the Constitution do you like." And they'll say freedom of speech or they'll say everybody can vote or they'll say gun rights or no unlawful search and seizure and then I get to say, you know the things you just named as being great about the Constitution? None of this is in the Constitution. None of them is in the document that the Framers adopted on September 17th 1787. None of them are reasons that they were there, or they would have put those things in it.

Nick Capodice: [00:02:32] Today on Civics 101 in our founding documents series, we are finally getting to you. And we're talking about the Bill of Rights.

Nick Capodice: [00:02:40] I'm Nick Capodice

Hannah McCarthy: [00:02:41] And I'm Hannah McCarthy.

Nick Capodice: [00:02:42] And before we get into how it was created or how it affects our lives let's be clear about what it is. The Bill of Rights is the first 10 amendments to the U.S. Constitution written by James Madison, ratified December 15th 1791. And you know them all by heart right.

Hannah McCarthy: [00:03:02] Of course.

Nick Capodice: [00:03:02] If you don't, it's real easy to fix that. I looked at a bunch of mnemonic devices for how to memorize the first ten amendments and my favorite by far involves waving your hands around. Which is not good for radio, but Hannah and I made a video of it. Go to our website civics101podcast.org and check it out. Let's begin in that sweltering room in Philadelphia. David O. Stewart, author of The Summer of 1787 told me about the great debates over the Bill of Rights at the Constitutional Convention.

David O. Stewart: [00:03:32] The debate about the Bill of Rights actually never happened. It wasn't discussed through most of the summer. It was not something that they thought was terribly important. A few other states had constitutional provisions that declared rights. Virginia did. And it was widely thought to be sort of eyewash. It was something you did that made everybody feel better, but it didn't really make much difference. And they didn't worry that the national government would create risks to people's liberties.

Nick Capodice: [00:04:05] However the idea of a Bill of Rights was brought up at the convention. But truly at the 11th hour.

David O. Stewart: [00:04:12] In the last week of the convention there were two delegates George Mason of Virginia and Elbridge Gerry of Massachusetts who were known to be unhappy with the Constitution, with lots of features of the powers of the Senate the powers over trade, and suddenly they stand up. And working with each other, obviously they had cooked this up ahead of time, they move for the inclusion of a bill of rights. One of them actually says we could put this together in an afternoon. Which is a little ambitious. And most of the other delegates saw this for what it was which was it was a stall.

Nick Capodice: [00:04:51] They had been in this hot sealed up chamber with boards over the windows for months. And they did not let this diversion of a Bill of Rights scuttle the whole thing. And this feeling that it wasn't really needed is echoed by James Madison and Alexander Hamilton. Hamilton's Federalist 84 says Bills of Rights "are not only unnecessary in the proposed constitution but they would be even dangerous."

Hannah McCarthy: [00:05:14] You said Madison wrote the bill of rights. But he didn't want a bill of rights?

Nick Capodice: [00:05:19] Not in the slightest. He did not think it was essential to a new nation and even referred to the act of writing it as a "nauseous project."

David Bobb: [00:05:29] The fundamental point that James Madison made is that the Constitution itself was really the structural guarantee of our rights.

Nick Capodice: [00:05:40] This is David Bobb. He's the president of the Bill of Rights Institute and the author of Humility an Unlikely Biography of America's Greatest Virtue.

David Bobb: [00:05:48] Alexander Hamilton wrote the Constitution itself is a bill of rights. In other words all of those kind of things that can be considered not quite as exciting: the separation of powers, federalism, these sort of guarantee the structural part of the Constitution, that's the mainstay of our liberty. Of course Madison was very aware that the people's rights need to be protected but that was mainly the job for the states.

Nick Capodice: [00:06:20] Remember Hanah all these states had their own constitutions many of which had their own bills of rights.

Hannah McCarthy: [00:06:25] Right. So they're arguing that all of the states have them, so why does the federal government need one too.

David Bobb: [00:06:32] The other reason that Madison was not for the Bill of Rights was a kind of practical one. And that is, if you write those rights down and separate them out and say boy this is this is really important. This is this is the statement. This is the place you go to find all of your rights here. What if one of them is not on that?What if what if a right that you do possess is not listed there? Does that mean that it's not a right?

Hannah McCarthy: [00:07:00] Those are some pretty strong arguments.

Nick Capodice: [00:07:02] They are. But in the end they don't work. The constitution had been sent to the states where they had ratification conventions to decide if they're going to go along with it. Delaware ratifies first with a unanimous vote in Congress on December 7th. Then Pennsylvania, New Jersey, and Georgia ratify right after. But then we have a nailbiting lull during the year 1788.

Linda Monk: [00:07:25] These ratification conventions were big deals. And during that process of repeated theme is why is there no Bill of Rights.

Nick Capodice: [00:07:33] That's Linda Monk, the Constitution Lady and author of The Bill of Rights: a User's Guide. The people were calling for one.And this terrified the pro ratification federalists.

Woody Holton: [00:07:44] Madison in particular saw that as a plot to derail the constitution because people are saying hey you guys got to go back to Philadelphia in the summer of 1788 and write in some some civil liberties and maybe we'll ratify your constitution and the people who wanted the constitution were afraid that would lead to more controversy and the Constitution would never be ratified. And so they fought tooth and nail against a bill of rights. Not because they were opposed to civil liberties but because they were afraid that would gum up the works and prevent the original seven articles of the constitution from being adopted. But starting in Massachusetts in February 1788 and then in several other states including my original home state of Virginia and the state of New Hampshire all said OK we're going to go ahead and ratify the constitution but only with the understanding that if you don't add that, you'll add a bill of rights and if you don't add a bill of rights we can always call a second convention.

Hannah McCarthy: [00:08:51] Wait so they say give us a bill of rights or we'll call another convention to write a whole new constitution.

Nick Capodice: [00:08:58] Yeah and most of them did not want to do that. It was so hard to get the first one written.

Woody Holton: [00:09:02] The first Congress came in. Has a federalist majority. The majority of them don't want a bill of rights. But James Madison convinced his fellow federalists hey you know what we better give them a bill of rights before they give us one.

Linda Monk: [00:09:19] These states some of them will say OK we're going to trust you to put in a Bill of Rights and we'll go ahead and ratify it now. A state like North Carolina said no we don't trust you we're not going to ratify this until you've added the Bill of Rights. And so when Madison's running for Congress in his State of Virginia he takes the stand that if he is elected he will move to propose a bill of rights in the new Congress and that's what he does in 1789.

Nick Capodice: [00:09:50] Nauseous project or not. Madison is true to his campaign promise. Cause more than anything he just wants that constitution to be ratified. And if the people are crying for a bill of rights not only will he make one, but he'll ask every state what they think should be in it and he sits down and he makes his first list.

David Bobb: [00:10:11] The list that he came up with was more than 200.

Hannah McCarthy: [00:10:13] 200?

Nick Capodice: [00:10:14] 200!

David Bobb: [00:10:15] 200 total yeah. Because there are a lot of states that have pulled together lists that were long. And they had some that were more detailed than others. And Madison again with that kind of mind that wanted to lend some order to these kind of things, no way that you can deal with 200. You can hardly deal with 20.

Nick Capodice: [00:10:32] And then there's the question of where to put these rights. Madison initially wants them to not be a separate thing. He wants to write them into the Constitution.

Hannah McCarthy: [00:10:41] He wants to just change this document that these men sweated over for four months.

Nick Capodice: [00:10:46] Yeah, and Congress says heck no, we have a constitution already. But Roger Sherman of Connecticut had an idea.

Linda Monk: [00:10:54] And in fact it's an enemy of Madison's who proposes that maybe we should put all the amendments at the end. During the process that they propose they are referred to as amendments, not a bill of rights. Madison says there are amendments like a Bill of Rights because at the end of the process they all came together, after they were ratified, it was 12 amendments submitted, ten got ratified. At that time they became known colloquially as the Bill of Rights.

Hannah McCarthy: [00:11:27] Wasn't that the official term for it?

Linda Monk: [00:11:30] Well there is some debate about that Polly Meyer the late and very esteemed scholar raised some questions about that. Well was it actually called a Bill of Rights. I I I take a little exception of that, sometimes you don't have to give a name it's, give a document its formal name for it still to be that. I mean it still operates as what we think of and call a bill of rights.

Nick Capodice: [00:11:58] So we start with 200 and when the smoke clears we end up with 10 nice round number. The first are great civil freedoms; speech, religion, press, petition, assembly. The second and third are about militia and conditions under war, and the 4th to the 7th are about the right to the criminally accused.

Hannah McCarthy: [00:12:17] So a full half of the first ten amendments are about the rights of the accused.

Nick Capodice: [00:12:22] That's right.

Linda Monk: [00:12:23] You think why did the framers put that much emphasis on the rights of the criminally accused. And when you think about it you know why, it's because they were criminally accused. They were very aware of when you have the power of the whole government going against an individual who's accused of a crime.

Nick Capodice: [00:12:42] The ninth answer is Madison's fears of missing rights that just because a right isn't listed here that doesn't mean you don't have it. And then the tenth, that any power not given to the federal government is given back to the people or the States.

Nick Capodice: [00:12:55] And on December 15th 1791, Virginia becomes the 10th state to ratify the bill of rights adding it to our recently ratified constitution. And there it is, right?

Hannah McCarthy: [00:13:07] That's it? What is it like 15 minutes?

Nick Capodice: [00:13:10] Well. I think it's time we bring up the tub.

Hannah McCarthy: [00:13:17] What tub??

Woody Holton: [00:13:17] A tub to the whale.

Nick Capodice: [00:13:21] This is Woody Holton again and he's quoting a whaling term used by an anti federalist to describe the bill of rights.

Woody Holton: [00:13:29] Somtimes you know you're going after one of these big toothed sperm whales and the whale turns on the ship and it can sink the ship just like in Moby Dick. They had these big washtubs big wooden washtubs and they were thrown overboard. In hopes that the whale would attack the tub instead. So it's it's sort of a diversionary tactic. And it's amazing how many of the people who had opposed the Constitution saw the Bill of Rights as written as a tub to the whale. They wanted structural reforms. The largest number of them thought that the Constitution made the federal government too strong. And structural reforms to the Constitution were the last thing that James Madison wanted. He liked weakening the states. He was a strong national government guy and so he didn't want to shift power back to the states and he was also an anti democratic guy and he didn't want to shift power back to the people either. So he didn't want to give the critics of the Constitution the big stuff that they wanted. So instead he gave them some things that he saw as innocuous.

Nick Capodice: [00:14:45] Nobody was challenging gun rights at the time. Nobody thought there was an imminent threat to freedom of speech or religion.

Woody Holton: [00:14:52] They threw in all these things that to them seemed almost trivial. And that's the tub to the whale. And let's get people to adopt that bill of rights so we don't have to adopt a bigger bill of rights that returns power to the states and to the people. And certainly when I ask my students what they, what they like about the Constitution, they name the things in the washtub rather than the ship of state.

Hannah McCarthy: [00:15:18] OK. But regardless of whether the framers thought those rights were trivial, they were ratified. They have become a part of our Constitution and they helped define us.

Nick Capodice: [00:15:30] I agree they do help define us. They are, much like the Declaration of Independence, big ideas that you can hang your hat on. You can sink your teeth into. But there's an ongoing discussion about how they actually affect our lives.

Alvin Tillery: [00:15:47] First of all there's this debate right. There there's the Elkins and McKittrick view in history that's the Bill of Rights is a net gain for citizens in the United States because they've created a bundle of federal rights where the federal government can't trample on you.

Nick Capodice: [00:16:06] This is Alvin Tillery. He's the Director for the Center of the Study of Diversity and Democracy at Northwestern.

Alvin Tillery: [00:16:11] And so that's a net gain for citizenship even though your states can still trample on you your state can have a state religion like in Maryland. Your states can restrict your property. So but, but. To have the federal rights is a net positive in 1787. Right. Then there's the Charles Beard view which is you know all these guys are grifters. You know, the urbanites like you know are grifters and the planters are grifters. And what they've done is make sure that Shays' Rebellion never happens again. And so the Bill of Rights is a nice sort of thing to hang on your wall and make you feel like you're an American citizen. But it doesn't really affect your daily life because you know your state can still do really horrible things to abridge your freedom.

Nick Capodice: [00:16:59] And this is like the crux of the whole thing, Hannah. The Bill of Rights initially did not apply to the states. And what this meant for you as an American was that while the federal Congress couldn't pass a law abridging your freedom of speech freedom of religion your state could. And the Supreme Court even upholds this in a case of 1833 called Barron v. Baltimore. It's not until nineteen twenty five that the Supreme Court rules that via the 14th Amendment, the Equal Protection Clause, the Bill of Rights does apply to the states. But it's not all at once. It's called selective incorporation. Piecemeal, one at a time, these amendments are incorporated into state laws.

Linda Monk: [00:17:43] With any of these rights the way they were developed, say freedom of speech. The Supreme Court didn't even get involved with freedom of speech cases really until the labor movement brought a lot of those cases to the courts. And that's when finally the court would hold that, yes, these Bills of Rights actually apply to state laws too. You look at the civil rights movement, same thing. When, when the Supreme Court rules that desegregation must come to an end, did that happen in 1954? No. There was massive resistance from the states. It took movements of citizens, great movements of citizens to finally have some of those protections apply.

Hannah McCarthy: [00:18:28] This is kind of crazy to me. So are you saying that the Bill of Rights, which was written to kind of answer all of these concerns about the Constitution, you know denying states and individuals their rights, didn't actually apply to the states, it only applied to the federal government until 1925?

Nick Capodice: [00:18:52] Do you know the no excessive fines or bail from the Eighth Amendment?

Hannah McCarthy: [00:18:55] Yeah.

Nick Capodice: [00:18:56] We are recording these words on February 20th 2019 and that was incorporated this morning.

Hannah McCarthy: [00:19:04] So was the Bill of Rights as it was written in the 1700s kind of meaningless?

Nick Capodice: [00:19:10] I was scared to even say that thought out loud. But it is a fact that the Bill of Rights just didn't have much judicial impact for 150 years. The historian Gordon Wood said that "after ratification most Americans promptly forgot about the first ten amendments to the Constitution." In 20th century America, legal immigrants were deported for their politics. People in police custody gave forced confessions. Racial segregation was legal. So I asked Alvin about where he stood on this. Is the Bill of Rights a net gain or is it a bunch of grifters throwing out a washtub?

Alvin Tillery: [00:19:47] I think it is great. I think it was,, you know I think I'm closer to Elkins and McKittrick, and I think it was great when it, when it when it happened. When it was, when it was written into the documents. I think the ideals were always good and valuable but it took the culture time to catch up. And it took thousands and thousands of people putting their bodies and souls on the line to convince the power structure, which is very conservative always, that they should make good on these, the text of these charter documents, right? But the framers knew that they were being hypocritical when they were writing these documents. They absolutely knew it. And that's why the framers didn't allow Jefferson to say you know you forced us to have slavery. They knew that that wasn't true. Right? But they made a Herronvolk, master race democracy for themselves and it took an evolution in this country to undo it. And now it's going to take an evolution to preserve it, because we do have powerful forces that would like to return us to a master race democracy. And that's that's unfortunate but true.

Linda Monk: [00:21:04] My favorite quote, it's one I discovered in law school. It's the one I still stand by. It's by the great Judge Learned Hand. He says, "I think we place too many hopes in laws and courts and constitutions. These are false hopes. Believe me these are false hopes. Liberty lies in the hearts of men and women. And when it dies there, no law, no court, no constitution, can save it." So ultimately, the Bill of Rights came from us, came from We the People, and it depends on We the People for its protection.

Nick Capodice: [00:21:48] I feel like we've been here a lot of times, Hannah.

Hannah McCarthy: [00:21:50] Yeah.

Nick Capodice: [00:21:51] Pretty much every episode. These documents initially didn't apply to everyone. And they may have flaws. But through sacrifice and through the actions of citizens they become something greater.

Hannah McCarthy: [00:22:05] It's like this idea of "no man being above the law" or the words "We the People" or "All men are created equal." The true power of these words is not given by the government. It has to be fought for by the people. We have to rise up to wield it.

[00:22:40] Today's episode was produced by me, Nick Capodice with Hannah McCarthy.

[00:22:43] Our staff includes Jacqui Helbert Daniela Vidal Alee and Ben Henry. Erika Janik is our producer.

[00:22:49] Maureen McMurray is in charge of putting a hole in the washtub.

[00:22:52] Music in this episode by Music in this episode by:

Blue Dot Sessions

Ikimashoo Oi

Meydn

Scott Gratton

Yeyey

Yung Karts

Super special thanks to the very first teacher to talk to me for this series and tell me about the bill of rights, Nate Bowling. He's the host of the Nerd Farmer, a delightful podcast where nerdy civic stuff that we love mingles with politics and shade. Last but not least, Chuck Taft, creator of Bill of Rights Survivor is willing to share that with the world. If you go to our Web site civics101podcast.org Where you can see his lesson plan and PowerPoint. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: The Federalist and Anti-Federalist Papers

Ten days after the Constitution was signed at the Old Philadelphia State House, an anonymous op-ed appeared in the New York Journal. Signed by "Cato," it cautioned readers of the new Constitution to take it with a grain of salt. Even the wisest of men, it warned, can make mistakes. This launched a public debate that would last months, pitting pro-Constitution "Federalists" against Constitution-wary "Anti-Federalists." It was a battle for ratification, and it resulted in a glimpse into the minds of our Framers -- and a concession that would come to define American identity. 

Our guides through the minds of the Federalists and Anti-Federalists are Claire Griffin and Cheryl Cook-Kallio.

Grapphic Organizer: Have students take notes on this sheet while they listen to the episode

Episode Clips

More Resources

If you want to just devour every moment of the Federalist vs. Anti-Federalist debate, head on over to TeachingAmericanHistory.org for the whole collection. You can track the battle and learn what James Madison, Alexander Hamilton and John Jay may have told you if you challenged them to explain the Constitution.

Fun Fact! Thomas Jefferson, the very man who authored the Declaration of Independence, was serving as U.S. minister during the Constitutional Convention so he wasn’t around to offer his thoughts in Philadelphia. But he still managed to play a major role in designing the new government by way of letters to his fellow framers. And, even though he would come to call the Federalist Papers the “best commentary on the principles of government which was ever written,” he leaned more states rights, fear-of-tyranny than his peers. He also lobbied hard for a Bill of Rights. You can get a gander at some of his writing from the time through the Library of Congress.

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TRANSCRIPT

This script was created using a combination of machine and human transcription. There may be discrepancies or typos.

CPB by Adia Samba-Quee: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. Hey.

Hannah McCarthy: [00:00:04] Nick did you ever have to write one of those what I did over my summer vacation essays in grade school.

Nick Capodice: [00:00:10] All the time.

[00:00:12] In fact my finest summer vacation was playing Sam Gamgee in an eight hour production Lord of the Rings.

Hannah McCarthy: [00:00:18] Ok I wasn't expecting that. That is that's really that's ambitious. But still your thing is not as ambitious as designing a new system of government.

Nick Capodice: [00:00:29] Yeah nowhere near as ambitious as that.

Hannah McCarthy: [00:00:31] No right. Because that's totally insane you can't pull that off in four months. And yet that is how we got our current system of government a bunch of guys in the stifling heat in Philadelphia in this airless room with the windows nailed shut in the middle of the summer wrote our Constitution in four months and then they stepped outside and showed the world there. You know what I did on my Summer Vacation essay.

Nick Capodice: [00:00:58] By essay you mean the Constitution.

Hannah McCarthy: [00:01:00] I do.

[00:01:05] The delegates to the convention publish their constitution and newspapers throughout the 13 states and they were probably hoping for a pretty positive response but that is not what they got a mere ten days after the constitution is signed. I mean the ink is barely dry on this thing. Some guy named Cato writes this op ed basically saying I know that it's really exciting that this new constitution was signed by people like George Washington. But just be careful about it. It might not be all it's cracked up to be what someone's.

Nick Capodice: [00:01:38] Already constitution bashin' what does this Cato guy know who is Cato anyways?

[00:01:44] Has even read the Constitution.

Hannah McCarthy: [00:01:45] Well he has. But before we get into that introductions I am Hannah McCarthy.

Nick Capodice: [00:01:52] And I'm Nick Capodice.

Hannah McCarthy: [00:01:52] And this is Civics 101 and today we are diving into one of the most high stakes eloquent intense public battles in the history of the United States.

[00:02:03] The battle that pitted the pro Constitution federalists against the anti constitution anti federalists. And it sounds like the whole thing started with this guy named Cato. It did indeed the op ed that launched a thousand ships as far as who Cato is and what he actually knows. We're not totally sure about that. It's most likely George Clinton the governor of New York but it could also be this New York politician John Williams whoever it is.

[00:02:32] He almost certainly did not attend the Constitutional Convention.

Nick Capodice: [00:02:37] Right so Cato is a pseudonym.

Hannah McCarthy: [00:02:38] Correct. It's referring to a politician in ancient Rome who killed himself because he didn't want to live in Julius Caesar's new government. Cato was all about defending the Roman Republic.

Nick Capodice: [00:02:51] That is a little on the nose. Cato saying he'd rather die than live under this new constitution.

Hannah McCarthy: [00:02:56] Bingo. At the time most educated men would have picked up on the symbolism of this. The name Cato had actually been used to critique the British government in the past.

Nick Capodice: [00:03:06] Okay so the framers were a bunch of classics nerds. I can appreciate that. I think it's kind of endearing but why New York. This essay gets published in New York. It's written by a New York politician. New York, what's your damage?

Hannah McCarthy: [00:03:19] Well New York is not super happy with the new Constitution of the three delegates they send to the Constitutional Convention to walk out. Only Alexander Hamilton stayed behind but he's pretty thrilled with the Constitution. A lot of new York congressmen do not feel the same way. They do not want to see the states consolidated under this one powerful central government and they really don't believe that the Constitution can guarantee equal and permanent liberty like its proponents claim.

Nick Capodice: [00:03:53] So who's Cato writing the op ed for exactly.

[00:03:57] The whole Cato Roman Republic metaphor seems like pretty inside baseball like your average farmer probably doesn't know what's being referenced here.

Hannah McCarthy: [00:04:04] You know the average farmer is not who Cato is speaking to. Right now the Constitution is only a piece of paper with a bunch of ideas. It doesn't carry any real power and Cato wants to stop that power from happening altogether. All right.

Nick Capodice: [00:04:19] So he's talking to the guys in charge.

Hannah McCarthy: [00:04:21] Yeah politicians delegates.

Claire Griffin: [00:04:23] White literate men. Of course those are the ones who were at the Constitutional Convention. Those were the ones who were going to be the ratifying conventions.

Hannah McCarthy: [00:04:32] This is Claire Griffin. She's a former government and history teacher and a consultant in civic education. Like she said the Cato letter is addressed to the people who will be voting on whether or not to ratify the constitution. 9 out of 13 states have to ratify in order for the Constitution to go into effect and the Cato letter is the first of many many op eds criticizing the Constitution.

Claire Griffin: [00:04:55] Well they were a series of about 150 articles written by quite literally dozens of opponents to the Constitution. These were published not just in New York but in New York Pennsylvania Connecticut Maryland again kind of the same time frame September of 1787 through December of 1788 and their purpose was to dissuade the delegates to the ratifying conventions from supporting the constitution.

Nick Capodice: [00:05:27] Also it wasn't just Cato.

Hannah McCarthy: [00:05:28] No they had a Brutus a Centinel.

[00:05:31] They had an old Whig then that's Whig with an "h" -- collectively these writers were known as the anti federalists and these were really smart men with really well informed ideas.

Nick Capodice: [00:05:44] All right so being an anti federalist doesn't make you unreasonable or opposed to a government of any kind necessarily.

Hannah McCarthy: [00:05:52] Not at all.

Claire Griffin: [00:05:52] Before we go on I should almost apologize for calling them anti federalist because nobody wants to be called anti anything and that name anti specialist actually came from the federalist to describe their opponents. And because history is often written by the victors the name anti federalists has stopped and will use that in our conversation. They would have called themselves pro Republicans Republican with a small R.

Nick Capodice: [00:06:25] What does she mean by that small are Republicans.

Hannah McCarthy: [00:06:28] Oh what she means is as opposed to the big R or Republican Party small r Republicans are just in favor of a republic which most basically is a government where power rests with the people. They're anti federalists because they're not thrilled with strict federalism which is basically a centralized federal government that works with smaller state and local governments. The anti federalists would prefer a government closer to the Articles of Confederation with its really weak central government and plenty of state power.

Nick Capodice: [00:07:02] But the guys who are writing what we call the anti federalist papers they wouldn't have actually called themselves into federalist right.

Hannah McCarthy: [00:07:09] No no way. Their opponents gave them that label which is actually a pretty strong PR move. Calling a group anti anything it just makes them seem negative and in this case the other group of guys calls themselves the federalists the anti federalists probably would have called them the anti little are Republicans.

Nick Capodice: [00:07:30] So when do the federalists actually enter the fight. So far we've just got this op ed by Cato.

Hannah McCarthy: [00:07:35] Yeah it's actually quite a while before the anti federalists make their move. The little r Republicans have published 21 statements by the time we hear from the pro Constitution guys which I found pretty surprising because when I learned about this time period in school I learned about the federalists the federalists were this big deal these guys who explained the Constitution and I'm almost certain that I didn't read a single anti federalist paper back then. And yet they were the ones who kicked everything off. We might not have the Federalist Papers as we know them today without the anti federalists.

Nick Capodice: [00:08:17] I'm guessing the pro Constitution framers get to a point where they're like all right enough. We can't let this go anymore. These guys are killing us with bad press.

Hannah McCarthy: [00:08:26] Exactly. And they're not just in New York anymore. Cato inspired critics in other states as well. But the soon to be capital F federalists aren't just sitting there twiddling their thumbs while all of this is going on. They're making plans and then October 27th it happens. The first federalist essay hits the presses of a new york paper.

Claire Griffin: [00:08:51] Number one the very first one written by Alexander Hamilton in which he's laying out the case for a new constitution something to replace the Articles of Confederation.

Hannah McCarthy: [00:09:04] Federalist 1 otherwise known as Publius one.

Nick Capodice: [00:09:09] Publius?

Hannah McCarthy: [00:09:10] Yes it's a silly sounding name Pubilius was a guy in ancient Rome who helped to overthrow the monarchy and create the Republic of the people.

Nick Capodice: [00:09:19] That is a clever move by Hamilton Right. Because Cato kicked things off in the name that's in defense of the Republic and then Hamilton comes back at him like No way man. You got this all wrong. I'm the guy who establishes a representative government. I'm the guy that gives power to the people. You must be the other guy.

Claire Griffin: [00:09:37] What I love about Federalist number one is that Hamilton refers to the fact that the American people now have a chance to make decisions to create a government based on reflection and choice not accident and force.

Hannah McCarthy: [00:09:57] Meanwhile an anti federalist calling himself John DeWitt publishes in Massachusetts. He reads the times and what he sees is this permanent document that will never change. He basically says don't let them fool you. That amendment clause is useless. Congress is never going to achieve that three fourths majority they're talking about because that would require too many people to agree. He calls it an absolute impossibility.

Nick Capodice: [00:10:26] It's interesting because we know that the Constitution does end up getting amended. But back then there must have been so much anxiety about this new system of government. How could they possibly know it was going to work out the anti federalists are just saying hey we can't take this gigantic radical leap into a brand new system especially one that throws us into a stronger government. We just escaped a stronger government.

Hannah McCarthy: [00:10:50] Right. And the federalists were saying look we have got to beef up the federal government because the way that it is now is a disaster. We got it wrong we went too far toward a government of the people. It is too divided. So the first anti federalist drops in late September Pew one arrives about a month later and it says OK so we've heard some concerns.

Cheryl Cook-Kallio: [00:11:17] We are going to write a series of essays that are going to answer all your questions about the new constitution.

Hannah McCarthy: [00:11:25] This is Cheryl Cook. Kallio she's a former teacher and former council member in Pleasanton, California.

Cheryl Cook-Kallio: [00:11:31] And then he and John Jay and Madison methodically went through every single thing that was concerning and tried to answer those questions in 85 essays 85.

Nick Capodice: [00:11:45] How are we going to get through eighty five essays in one episode.

Hannah McCarthy: [00:11:48] Actually it's probably more than 85 because when you lump in the anti federalists and a few other things written at the time you're really looking at closer two hundred and forty plus articles. But don't despair. The point of this episode is to get a sense of what this fight actually looked like. What were the arguments for and against this nation changing document and how did the federalists approach to these op eds help their game.

Cheryl Cook-Kallio: [00:12:15] They were put in a collection and they started to disseminate that collection throughout the colonies. Again in contrast to the anti federalists that were very much individual essays that were now written in defense of their position.

Nick Capodice: [00:12:33] So the federalists are working together and guys like Cato and Brutus and the old Whig are just coming at it from their own individual perspectives.

Hannah McCarthy: [00:12:41] The anti federalists were certainly sharing their opinions with one another but it wasn't a unified front. The way that it was with Alexander Hamilton and James Madison and John Jay Jay by the way wasn't at the Constitutional Convention but he was a powerful New Yorker and Secretary of Foreign Affairs under the Articles of Confederation. So while the anti federalists comprised over a dozen different authors and pseudonyms those three federalists published only as publics. There were certainly other pro Constitution people writing op eds. But it was Publius who shone the brightest.

Nick Capodice: [00:13:17] Do you think that's part of the reason why the federalist ended up being successful you know in my opinion yes and I base this on.

Cheryl Cook-Kallio: [00:13:24] On a couple of things. One is that Hamilton and Madison in particular were planners. They had written out their justifications for particular things even before they would get into the constitutional convention. They would have the ammunition they needed to support something. Also I think Madison James Madison in particular is a pragmatist. He knew that there needed to be a different type of government. He knew that under the Articles of Confederation the government was way too weak to survive and he was prepared to do what he needed to do to get a different structure in place.

Hannah McCarthy: [00:14:06] Here is another agreed upon favorite that sheds some real light.

[00:14:09] This one is by James Madison and actually a lot of the favorites are by James Madison.

Cheryl Cook-Kallio: [00:14:15] I do like Federalist 10. I think that Madison was right when he said that factions are bad but they're inevitable and that the only way to mitigate these factions is to balance them out.

Hannah McCarthy: [00:14:30] Madison published Federalist 10 on November 22nd. This is after anti federalists like Cato expressed concerns about this centralized Congress with so many different special interests. Basically he was saying how is the government going to get anything done with this system. It will be a house divided. It'll be useless just a bunch of factions. Madison has to prove that the new system of government is actually the best way to deal with factions. But what did Madison actually mean by factions like political parties. Well back in the day theU.S. didn't really have the party system the way that it looks today. So it'd be less party factions and more like opposed special interest groups and Maddison's biggest concern was over the special interest groups who would fight against what was best for everybody. A good example back then would have been slave owners versus abolitionists. Here's Claire again.

Claire Griffin: [00:15:25] He's writing about the advantages of a large Republican republic with a small r where individuals choose their elected representatives. Political philosophers before Manison were pretty certain that the republic would only work in a small geographically small area with a fairly homogeneous population and Madison says just the opposite he said. The public works best when the territory is large and expand it and when there are so many different interests and crude he used the word faction that all the different interest groups offset each other. No minority is persecuted against no majority ever has complete sway.

Hannah McCarthy: [00:16:15] Madison also focuses on the economy in Federalist 10 and at this point in history theU.S. economy is really not doing so hot. He describes an equal property distribution with some people having everything and some people having nothing. And this he says can create factions to the wealthy versus the poor. His large republic where you've got a Congress representing the many scattered views of the common people will work to balance this out.

Nick Capodice: [00:16:42] It seems like Madison and the other federalists are going to have an answer for every concern the anti federalist put their way. Yeah he pretty much do.

Hannah McCarthy: [00:16:52] And a big part of defending the Constitution is explaining the Constitution. Lequan anti federalist Brutus argues that the Supreme Court would be quote exalted above all other power in the government and subject to no control. And Hamilton is like OK let me break it down for you.

Claire Griffin: [00:17:12] Number seventy eight. Alexander Hamilton again is writing about the importance of the independent judiciary and I'm not sure whether or not he really believed it but he said that the three branches the judiciary would be the weakest he said. They have neither the force of the sword nor the pen. The idea being they have no way to enforce what their judgment is. And he also emphasized that they were called upon to exercise judgment about laws but not will. As in they are not the law makers. So when you hear discussions about activist judges or judicial overreach or even questions about judicial review today Hamilton are raising those questions back in 1788.

Hannah McCarthy: [00:18:05] And then there's the president the anti federalists looked at Article 2 and they were not happy with what they saw.

Nick Capodice: [00:18:11] I would imagine that anti federalists are looking at the role of the president in thinking this looks mighty familiar.

Hannah McCarthy: [00:18:18] Yep but the federalists believe that there is a very good reason for this executive power.

Claire Griffin: [00:18:24] Number 70 written by Alexander Hamilton. This is where he writes about the importance of energy in the executive branch. The right of the Constitution. We're looking at the immediate past history when we were governed under the Articles of Confederation. One of the major weaknesses of the government under the articles there was no chief executive. And so Hamilton whom some have called a monarchist which I think is unfair. Hamilton was arguing for a strong executive individual and a strong executive branch.

Hannah McCarthy: [00:19:03] And the executive branch that's laid out in the Constitution doesn't say all that much about putting a check on this new executive.

[00:19:10] The anti federalists feared that between veto power and pardon power you'd end up with a president who could bend the nation to his will.

Claire Griffin: [00:19:24] Well if you look you know throughout American history we've had a series of very strong executive. And usually it's in times of crisis. But it is a strong executive. The best for our nation and the epicenter of us would say you know no that's not such a good idea. You know the federalists were arguing generally in favor of a large government or at least a government larger than that which had existed prior and certainly big government can do great and wonderful things but the anti felt but more say not so fast. Maybe we don't want a huge government bureaucracy so it's kind of interesting you could say that the Federalist more success. You know they got their desired outcome.

[00:20:16] The Constitution was ratified and the Federalist Papers have become integral to our understanding of our founding. However if you look at the anti federalists given some of the questions and concerns that that they raised then they're still with us today. We may decide that after all they ended up having the last laugh.

Nick Capodice: [00:20:40] That is a really interesting point. The federalists won. So that's the history that counts right. And we look to the Federalist Papers to better understand the Constitution. And that makes them an amazing resource. But it does seem like the anti federalists are raising valid points.

Hannah McCarthy: [00:20:59] Absolutely. And remember the anti federalists are posing a real threat. First of all these essays are public. So if you can read and you don't like what you're reading about this proposed constitution you might just give your representative an earful down at the tavern or out on the street or after church. And then there's the fact that some of these anti federalists are going to be voting on whether or not to adopt the constitution. So they have a very real say in the future of the country. And on top of all that the Constitution only needs the support of nine states to be ratified. Right. But that means that as many as four states could choose not to ratify and potentially even sever ties with the new nation. So no more union union over and the country ends up being the very failure that so many framers were anxious to prevent.

Nick Capodice: [00:21:53] So the federalists do have to listen to the anti federalists.

[00:21:56] To an extent and not just to calm their fears or do damage control with anti fed op eds.

Hannah McCarthy: [00:22:02] Right the Constitution is up for a vote in ratifying conventions across the country and some states like Delaware Pennsylvania and New Jersey. They're quick to ratify. They do it in December of 1787 but the OP eds don't stop the Federalists and anti federalists are still battling it out into the spring and then into the summer of 1788 because there are a lot of very loud dissenters arguing that the Constitution is illegal under the Articles of Confederation that it's a document written by wealthy upper class people to benefit their own interests that it deprives states of their individual rights in favor of this big central government.

Nick Capodice: [00:22:42] Yeah how do the federalists reconcile that issue. It sounds like anti federalists are all about states having sovereignty and looking out for their own and making their own choices. So how can the federalists make this big government remotely appealing to them.

Cheryl Cook-Kallio: [00:22:56] Well Madison does dig into that by explaining how in broad terms this government is going to work. Here's Cheryl again.

[00:23:03] When he's trying to explain it one of the things he says and this is a quote from federalist 39 in its foundation it is federal not national in the sources from which the ordinary powers of government are drawn. It is partly federal and partly national in the operation of these powers. It is national not federal in the extent of them again it is federal not national. And finally in the authoritative mode of introducing amendments it is neither wholly federal or wholly national. Now that's enough to make anybody's eyes cross two or three times. It sounds like double speak.

Nick Capodice: [00:23:45] Yeah I really don't understand why Madison is talking about is he canceling out his own argument. And what does he mean by federal versus national aren't that the same thing when you deconstruct the paragraph.

Cheryl Cook-Kallio: [00:23:56] It really does illustrate the nature of federalism. Sometimes the states are in charge sometimes the national governments in charge and sometimes the federal government which is the combination of the two is in charge and these things change depending on the circumstance. He would then go on to say that this is really a check this idea that you have state power that doesn't belong the federal government an example of this is police powers. That's a state power. There's a number of things like that and sometimes the lines are blurred and sometimes are not.

Nick Capodice: [00:24:33] All right. So in other words Madison is saying look this strong federal government is not designed to deprive states of all power. Sometimes the states get to decide and sometimes the federal government gets to decide. Sometimes they decide together.

Hannah McCarthy: [00:24:50] Right. He's saying this document is not as extreme as these anti federalists are making it out to be.

[00:24:56] Don't worry you'll retain some states rights.

[00:25:03] Of course that doesn't address the little problem of the federal government being at the top of the food chain and the anti federalists are like we're afraid of tyranny. Remember this constitution doesn't say anything about protecting the little guy. You can't just kind of vaguely say don't worry individual citizens you'll be fine. The anti federalists want this in writing.

[00:25:27] OK. I've been waiting for this. This is the big ole glaring omission in the Constitution of 1787 and we're talking about the Bill of Rights. Where's that Bill of Rights.

Hannah McCarthy: [00:25:38] That is exactly what the Anti-federalists are saying. Where is the Bill of Rights? It might seem like a no brainer for us but at the time the federalists were like No no no we don't need to add anything to the Constitution. It's overkill it's redundant.

Claire Griffin: [00:25:53] The last Federalist Paper which is probably significant for what it argues against not for what it argues in favor of is number 84 in which Hamilton argues against a bill with a right.

[00:26:08] Now today for us in the 21st century a Bill of Rights is sacrosanct. It's right up there with the declaration and the Constitution. It is one of the founding document. It's hard for us to understand how could we not have a Bill of Rights.

[00:26:23] But if you look at Hamilton's arguments they could be pretty persuasive.

Hannah McCarthy: [00:26:28] Hamilton's main argument was that there's protection kind of built into the Constitution already. The federal government only has the powers that are laid out in the Constitution. And this idea of making a list of what the government is not allowed to do to individuals or to states. Well Hamilton says if you start listing them at all you've got to list all of them. And by the way you're bound to forget something and if it doesn't end up on the list well the government might have the power to impose it.

Nick Capodice: [00:26:57] All right. So I know you've been saying the anti federalists lost the war but.

[00:27:02] They did win this battle.

Hannah McCarthy: [00:27:04] Big time at the end of the Federalist anti federalist saga. We are going to have a constitution. But first the anti federalists need a little something. Actually they need 10 little somethings 10 somethings that will change the course of history and come to mean everything to the American people. In a last ditch effort to save the Union. Our civil liberties will be born. But how does it happen. How in Sam Hill does it happen, Nick?

Nick Capodice: [00:27:35] Find out next time on civics 101.

Hannah McCarthy: [00:27:43] Thanks for joining us for another installment of our foundational document series here on civics 101. This episode was produced by me. Hannah McCarthy with Nick Capodice.

Nick Capodice: [00:27:52] Our staff includes Jackie Helbert, Daniela Vidal Allee and Ben Henry. Erica Janik is our executive producer.

Hannah McCarthy: [00:27:58] Maureen McMurry is that other glaring omission from the U.S. Constitution.

Nick Capodice: [00:28:02] We could only cover so many federalist and anti federalist thoughts in this episode but we've got links to plenty more on our Web site civics 101 podcast.

[00:28:11] Dot org.

Hannah McCarthy: [00:28:11] Music in this episode by Quincas Moreira,

[00:28:14] Blue dot sessions and Jahzzar.

Nick Capodice: [00:28:16] Civics 101 is a production of NHPR. New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: The Constitution

After just six years under the Articles of Confederation, a committee of anxious delegates agreed to meet in Philadelphia to amend the government. The country was in an economic crisis — citizens couldn’t pay their debts, the government couldn’t really collect taxes, and rebellions were cropping up in states across the nation. The existing government had the potential to drive the country to ruin. So fifty-five men gathered to determine the shape of the new United States.

The document that emerged after that summer of debate was littered with masterful planning, strange ideas and unsavory concessions. The delegates decided they'd be pleased if this new government lasted fifty years. It has been our blueprint for over two centuries now. This is the story of how our Constitution came to be. 

Leading us through the sweltering summer of 1787 are Linda Monk, David O. Stewart, Woody Holton and Alvin Tillery.

Graphic Organizer: Have students take notes on this sheet while they listen to the episode

Episode Clips

More Resources

The Constitution has a complicated story, so don’t stop here! There are some great resources out there that can shed more light on the Constitutional Convention and its ramifications.

Day-By-Day Summary of the Convention

James Madison took copious notes during the Constitutional Convention, and understanding the timeline of this event can help to shed light on the decisions and compromises made. This day-by-day summary can take you there without having to hold Madison’s hand the whole time.

But let’s say you, just like Linda Monk, would love to hold James Madison’s hand the whole time! You can find his complete notes below.

James Madison’s Notes from the Convention

There are lots of artistic interpretations of the Constitutional Convention. One of the more famous paintings is this beaut by Howard Chandler Christy.

The same folks who brought us that summary above (teachingamericanhistory.org) put together a great interactive version. You can click through the delegates and get to know them a little better.

Unpacking the impact of the Three-Fifths Compromise on the United States takes time. The reverberations were felt throughout history, and therefore can still be felt today. You can find more information on this and the vast scope of African American history at Black Past.

The Three-Fifths Compromise

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Transcript:

Hannah McCarthy: [00:00:00] George Washington wakes up early. Per usual on November 5th 1786 he goes to a study and reads over his correspondence and then around 7:00a.m. the bell rings for breakfast and he joins his guests. Charles Pinckney of South Carolina among them at the table. They probably have cold ham and mutton though Washington's favorite is mush cakes with butter and honey and three cups of tea. No cream when the guests hit the road. Washington heads into a study and sits down to write some letters. In fact he spends the rest of the day writing. He's got a lot on his mind. He's really worried about the state of this fledgling nation at this point in history. The country is still under the Articles of Confederation and things aren't going so well.

Nick Capodice: [00:00:53] Yeah, those articles. The U.S. did not exactly thrive under the Articles.

Hannah McCarthy: [00:00:57]  Washington has just received word from James Madison who is in session with the Virginia Congress that the Assembly is considering amending the Articles of Confederation.

Nick Capodice: [00:01:07] So why is Washington worried. This is good. Things are looking up.

Hannah McCarthy: [00:01:10] Because it's very nearly too late. The Articles of Confederation have only been in place for five years and they do not work. Things are crumbling. Washington has just heard that small rebellions are popping up all over the new nation. People are furious postwar debt is crushing the country. One of my favorite parts in this letter to Matheson is when Washington talks about how melancholy it makes him to think that they might be quote fulfilling the prediction of their transatlantic foe. Leave them to themselves and their government will soon dissolve.

Nick Capodice: [00:01:45] So Britain said this would happen right. Like they said you can't possibly make it on your own and look barely any time has passed and we're basically right.

Hannah McCarthy: [00:01:54] Yeah, Washington calls it quote a triumph for our enemies. For the advocates of despotism John Adams actually wrote to John Jay around this time and told him that people in England were joking about the fact that America would come crawling back beg to be let back in and then Britain would let them dangle for a while and then tell them to buzz off.

Nick Capodice: [00:02:17] So cold and it's like the ultimate breakup fantasy right. It's like just you wait.

Nick Capodice: [00:02:23] You're going to be sorry you're going to come crawling back someday and I'm going to say no chance.

Hannah McCarthy: [00:02:27] Except this breakup took seven years and tens of thousands of people died. Washington basically says look Madison I know I don't have to tell you this. But this week government is going to be our downfall. So all I'm going to say is I sure hope these 13 states can consider the common good here.

Hannah McCarthy: [00:02:48] All right so Washington sends this letter off. And then what does Madison say?

Hannah McCarthy: [00:02:52] Madison, as it turns out is way ahead of things before he even receives Washington's letter. He's already got a bill before the Virginia assembly that will appoint delegates for a convention. The following summer a convention to amend the Articles of Confederation. The bill passes and the other states follow suit. The time? May 14th, 1787. The place? Philadelphia. What show is this? This is Civics 101 and I am Hannah McCarthy.

Nick Capodice: [00:03:25] And I'm Nick Capodice.

Hannah McCarthy: [00:03:26] And today we're taking you to the City of Brotherly Love to a stuffy chamber in the old Pennsylvania statehouse the very same room where a decade earlier a group of men came together to declare themselves independent of their motherland. This time around they came to reel some of that independence in. This is the story of how our Constitution came to be.

Nick Capodice: [00:03:47] Wait wait wait wait just we're all on the same page here when we're talking about theU.S. Constitution. What exactly are we talking about.What's in it.

Hannah McCarthy: [00:03:56] Okay first things first. In this episode we're going to be talking about the thing that was written in 1787 the document designed to correct a nation that was falling off the rails. The constitution has changed quite a bit since then and changed pretty quickly after it was written. Just so everyone knows. So first there's a preamble. That's the part that most people know a lot of us learn it through the Schoolhouse Rock song.

Schoolhouse Rock: [00:04:23] We the people in order to make [fades out]

Nick Capodice: [00:04:27] Some pretty grand language -- secure the blessings of liberty to ourselves and our posterity.

Hannah McCarthy: [00:04:36] Yeah it starts out lofty but the Constitution itself is a bit more dry than that.

Linda Monk: [00:04:43] OK the Constitution we think of as basically a structure of government. It's got seven articles and four parchment pages.

Hannah McCarthy: [00:04:53] This is Linda Monk constitutional scholar and author of the words we live by your annotated guide to the Constitution.

Linda Monk: [00:05:01] Article 1 which is Congress. Most people get that wrong and they think it's the president but no it's Congress. Congress gets two out of four pages and words in the Constitution count.

Hannah McCarthy: [00:05:15] So very basically the Constitution is a collection of seven articles that explain what the government is what's in it and how does it work. Article 1 the legislative branch seems to get the most attention.

Linda Monk: [00:05:29] So the more words there are a lot of times the more powers there are. The Framers intended Congress to be the dominant branch of government. And that's where most of the power Sligh next longest is. Article 2 the executive branch. The president was the piece of our current government that the framers had the hardest time agreeing on. They had lots of different proposals. Finally we came down to a president of the method of selection in terms of the electoral college is still one that we debate and are concerned about. Then comes Article 3 the judicial branch the third branch is the judiciary which has the fewest words. But we've come to think of it today as having broader powers Article 4 covers states and citizenship full faith and credit that states must recognize for instance like the marriages in other States full faith and credit basically means that any state has to respect the acts records and judicial proceedings of another state.

Hannah McCarthy: [00:06:31] It also deals with interstate felons. New states joining the union and Federal Government protecting states. Then we've got five. The this thing can be amended clause.

Linda Monk: [00:06:41] What I think is the secret sauce that's the amendment process. We said didn't work a constitution that's not too easy to change because that would make it more like everyday law versus a constitution that's too hard to change. And then you have revolution instead of amendment. And then there's six supremacy clause that says that the Constitution itself is the supreme law of the land including over other state constitutions. And last but certainly not least lucky number seven where they sign and say what the process is going to be from that.

Hannah McCarthy: [00:07:18] When Linda says the process she's talking ratification nine states are going to have to vote yes on this document to make it stick.

Nick Capodice: [00:07:28] So there you go seven articles all wrapped up nice neat little Pagad pretty pink ribbons on it.

Hannah McCarthy: [00:07:34] Except it wasn't neat, Nik. No pink ribbons. It was difficult and contentious and touch and go and very very hot in there. So do you want to know how it happened. Yes. I don't know how it happened. Well Linda gives a lot of the credit to James Madison Linda really really loves James Madison.

Linda Monk: [00:07:55] Who can't love James Madison.

Linda Monk: [00:07:59] He's my hunka hunka burning constitutionalism.

Hannah McCarthy: [00:08:03] According to Linda Madison is different from the other politicians compared to the other framers. He's petite and he's also kind of nervous but he's strategic and thoughtful and effective underdog.

Linda Monk: [00:08:17] To have that combination of a great philosopher but also a good practical politician in one person. And for someone to say that government is the greatest of all reflections on human nature he just has a wisdom that really speaks to me and I'll stand by it. He's my boyfriend and he's the person is my favorite founder.

Hannah McCarthy: [00:08:42] And even if you don't carry a flame for him Madison it was undeniably instrumental in the Convention of 1787.

David O. Stewart: [00:08:50] You have to point to James Madison I have tended to quarrel with calling him the father of the Constitution but I do think he's the father of the convention in many respects.

Hannah McCarthy: [00:09:00] This is David O. Stewart author of the summer of 1787. He's going to be our main guide to the Constitutional Convention. David says that Madison was successful in part because of his connections.

Hannah McCarthy: [00:09:14]  One connection in particular.

David O. Stewart: [00:09:16] To be honest nothing in that decade of the 70s 80s in America happened of significance politically unless Washington was in it. He was the guy and Madison very intelligently insisted that Washington's name be listed as one of Virginia's delegates right from the start. That gave an incredibly strong blessing.

Nick Capodice: [00:09:36] Celebrity power. Like having Obama speak at your charity event or something.

Hannah McCarthy: [00:09:41] Only bigger. Washington was a celebrity of almost ridiculous proportions.

David O. Stewart: [00:09:47] You know his stature was immense. I mean he was at a stage where he couldn't enter a city without having the church bells ring and fireworks be scheduled and illumination everybody's house happened that night. I mean he just was you know the star. We did. We've never experienced you know stardom that the level that heated.

Nick Capodice: [00:10:12] OK some Maddison's rallying people to come to this convention. He knows that Washington being there is going to get a lot of people in the room.

David O. Stewart: [00:10:19] Washington was very uncertain whether he really wanted to go but he did ultimately decide to. There was a lot at stake. And if it didn't go well then he would be blamed for it. And he knew that. And so it was not an easy decision. He had tried to retire from public life after the revolution.

David O. Stewart: [00:10:38] And I think he meant to.

Hannah McCarthy: [00:10:40] This is understandable. This man put his time in and he wants to sit back and enjoy the rest of his life in peace. But the country he had fought so hard for was struggling to stay afloat so he allows himself to be drawn back in with the understanding that he would be presiding officer actually referred to as the president of the convention. That means he's not going to operate and he's not going to debate he's going to oversee until vote.

Nick Capodice: [00:11:09] OK. So Madison's got Washington he's got his delegates and everyone meets up in Philadelphia to figure something out.

Hannah McCarthy: [00:11:15] It wasn't that easy. Almost everybody was late. The convention was set to start on the 14th of May and they didn't reach a quorum. That's seven states until the twenty fifth Rhode Island just never showed. New Hampshire didn't have the money to send their delegates until mid July. There's actually this moment in Madison's notes where someone proposes a resolution to send for the delegates from New Hampshire and the motion is defeated.

David O. Stewart: [00:11:41] Virginians were the first out of town delegation arrived.

David O. Stewart: [00:11:50] The Pennsylvania delegation was mostly men from Philadelphia so they lived there. And those two groups of men got to know each other pretty well. They did talk and strategize together. And then the Virginians developed the process where in the mornings and this happened for over a week they would convene at the boarding house where Madison was staying. And they put together a blueprint.

Hannah McCarthy: [00:12:17] So remember the plan is to get a bunch of delegates together and make changes to the Articles of Confederation so that they well work so that the country doesn't fall apart. But Madison has a different idea. The delegation spends a few days voting on rules for the convention including total secrecy so that the framers can debate freely and change their minds if necessary. And then Madison makes his move. Before any debate or suggestion takes place. He has fellow Virginian Edmund Randolph submit a list of 15 resolutions they call it the Virginia Plan.

David O. Stewart: [00:12:54] And what the Virginia Plan did basically was throw out the articles and start on a blank piece of paper. And that was audacious and it was also very smart because. People wouldn't bring to the debate all the old arguments they'd been having for six years under the articles. And they could start essentially with first principles of how a government should be designed and should operate.

Nick Capodice: [00:13:20] That's a bold move. The Articles of Confederation are no dreamboat but Imagine showing up thinking you're going to make some small tweaks and adjustments and then this faction of states tells you no surprise we're going to talk about a whole brand new form of government.

David O. Stewart: [00:13:36] The reaction is mixed. Just to be charitable there were delegations like Pennsylvania and I think the South Carolinians who knew exactly what the Virginians were doing and supported. There were a number of delegations what classically has come down to being described as a small state delegations who were surprised and in no small measure appalled.

David O. Stewart: [00:14:01] The Delaware delegation ended up threatening to leave. They had instructions from their state legislature that did not include starting over with a new charter of government.

Hannah McCarthy: [00:14:13]  There are delegates who are understandably upset with this proposition and they certainly could bail. They could walk right out the door and spare themselves months of debate in an airless room.

Nick Capodice: [00:14:26]  But why don't they bail because if enough delegates leave they'll lose the quorum it'll be over but they can just try again next year.

Hannah McCarthy: [00:14:33] Well two delegates from New York do eventually walk out. That's Robert Yates and John Lansing. But I think back to that letter that George Washington wrote to Madison. Things are so bad in the country right now. The government needs to change or this grand experiment is going to fail. And how are you going to walk away from the chance to contribute to the structure of a new nation.

Woody Holton: [00:14:56] I wanted to choose a three word phrase that sums up the motives of the authors of the Constitution. It would be a phrase that was used at the convention and that phrase is describing the problem that the Constitution was designed to solve as excess of democracy.

Hannah McCarthy: [00:15:14] This is Woody Holton historian and author of unruly Americans excess of democracy.

Woody Holton: [00:15:19] The feeling among many of those 50 most of those 55 guys who wrote the Constitution was hey it was great that we got rid of the king but like a pendulum swung too far to the opposite extreme and now we have an excess of democracy and we got to pull it back the other way.

Hannah McCarthy: [00:15:37] Excess of democracy might sound absurd to the average American but what he means here is that under the Articles of Confederation the states were masters of their own destiny. They had a say in whether they would be taxed. They got to make up their own rules but it wasn't working. What he says that there are so many factors that lead to the debates on the floor of the Philadelphia statehouse. But money makes the world go round. And after the Revolutionary War the country had empty pockets and crushing debt with no surefire system in place to collect taxes.

Woody Holton: [00:16:12] The people who wrote the Constitution did not write it to make the country more free. They wrote it to get the country out of a recession because debt aren't being paid both to the bondholders who it bought up the war bonds or to private creditors.

Hannah McCarthy: [00:16:30] So many delegates saw a lot of danger in granting a federal government more power and so much of that is about who you can trust right. Like these powers can be a good thing if they stop anarchy and improve the economy. But there is some serious danger in power too. You know there's there's no way to make everybody happy here. But we do need that new government. Nobody wants to go crawling back to Great Britain. So from the absolute get go the convention is going to have a theme.

Nick Capodice: [00:17:05] Powdered wigs and waistcoats? Tricorn Hats?

Hannah McCarthy: [00:17:07] Compromise.

Nick Capodice: [00:17:11] Compromise. Quickly, what exactly is the Virginia Plan? What does Madison want this new government look like?

Hannah McCarthy: [00:17:21] Okay right. Madison proposes a strong national government that could make and enforce laws and collect taxes. The legislation would be bicameral meaning to house and representation would be proportional to a state's population.

David O. Stewart: [00:17:35] Then when the Virginia Plan comes out those devastated states rights were the most shocked and appalled. Couple of delegates from New York actually left after six weeks that because they were so unhappy with the centralization of power. Under the draft that everyone was working on. So when that argument was engaged. It ended up morphing into an issue over representation. And that was a lucky thing I think for the people who wanted a stronger national government because there are certain once you're arguing about representation. You're arguing over how to do it as opposed to. Should we keep this system where the states have essentially almost all the power.

Nick Capodice: [00:18:24]  OK so Madison proposes this plan and an order to talk about this plan. The delegates have to talk about representation. Right. And that's such a hot button issue that suddenly everyone's debating how to be represented in the Congress. And they've mostly moved on from the fact that this is a completely new system of government and that wasn't the plan for this convention in the first place.

Hannah McCarthy: [00:18:45] Right. So once things get started they have to start making compromises little New Jersey says OK I see your two house proportional representation and I raise you a unicameral that's one house legislature and equal representation. Each state gets one vote as outlined in the Articles of Confederation.

David O. Stewart: [00:19:06] That was the bitterest fight of the summer and really almost blew up the convention in early July. This small state delegates were about to leave because they had been losing. And they came up with this compromise that we still live with where the Senate has equal state representation. Each state gets two senators and the House of Representatives is proportional based on population.

Hannah McCarthy: [00:19:32] This was actually called The Great Compromise or the Connecticut Compromise because Oliver Ellsworth from Connecticut proposed it. Now not everyone is going to be happy. But this is acceptable and anyway they still got a lot of work to do and delegates are willing to let this idea go to committee to hammer out the details but when they reconvene it's going to be time to compromise again because when you talk representation you talk population and nearly 20 percent of the population at that time was enslaved.

Alvin Tillery: [00:20:06] Well the three fifths compromise was essentially one of the pro slavery clauses of the Constitution.

Hannah McCarthy: [00:20:14] This is Alvin Tillery. He's the director of the Center for the Study of diversity and democracy at Northwestern University.

Alvin Tillery: [00:20:20] And what the southerners wanted entering the Constitutional Convention of 1787 was they wanted all of their slaves to be counted in the apportionment because places like South Carolina and Georgia had very very large slave populations. They were not as well developed as the Mid-Atlantic slave states or the northeastern states. And so for them if you were just counting white people they were going to have very few seats.

Alvin Tillery: [00:20:54] And so entering the convention they demanded you know a full count every slave would count as one person.

Hannah McCarthy: [00:21:02] In some states enslaved people made up a full third of the population to count them as members of the population rather than as pieces of property would be to give the South real power in terms of representation. So northerners made the argument that slaves were livestock just like horses or oxen. You don't count horses or oxen as part of the population do you. So why would you count your slaves. The South said no. These are people. They're human beings. They ought to be counted. So what if they can't vote. Women can't vote but they're counted.

Nick Capodice: [00:21:38] You know I've often been taught that the North was the moral player throughout the history of the United States. But here they are denying the humanity of the enslaved people for the sake of their argument.

Hannah McCarthy: [00:21:51] Yeah and remember at the time of this convention slavery was still legal in the north and Maryland Delaware New Jersey and New York and the North had been built on slave labor.

Alvin Tillery: [00:22:04] They all understood that it was immoral. And so the the old view that the founding generation the slaveholders among them from Washington and Jefferson and Madison that they didn't know that slavery was wrong is belied by their own writings and statements about slavery. Let's let's not forget that in the first version of the Declaration Thomas Jefferson sort of essentially blamed the king's evil advisers in Parliament for slavery foisting slavery upon them. Right. Jefferson wrote very compellingly and notes on the state of Virginia about slavery being a moral evil. And so so those old arguments just don't hold any water. We know from the writings of the framers that they knew that this system was wrong but they protected it because of a combination of their economic interests and white supremacy.

Nick Capodice: [00:22:56] What conversations are they actually having over the issue of representation. Was it purely motivated by money and racism.

Hannah McCarthy: [00:23:08] I think the racial and economic bias is a given in this room but there were some people like Gouverneur Morris from Pennsylvania and Rufus King from Massachusetts who argued against the entire principle of slavery from a moral point of view. Morris even suggested that the newly reformed nation by and free all enslaved people. That idea was quickly shot down even in those free states you still had men who had grown up with slaves. They were self interested elites.

Alvin Tillery: [00:23:40] So the entire original thirteen the wealth that made them all viable is bound up in slavery in some way or another. And this is the argument the southerners used they would say well it's fine for New York and Massachusetts to say that they don't need slavery anymore but they've had slavery for a hundred years 125 years and extracted great wealth from it. Well has Charles Cotesworth Pinckney would say from South Carolina South Carolina's just starting to do that. So it's not fair you know to say to say we developed on the slavery basis and now you guys can't and I think that that argument won the day.

Hannah McCarthy: [00:24:20] The compromise part of this is in the name of course the three fifths compromise Southern delegates wanted their enslaved population to count as full members of the population. Northern delegates did not want them to count at all. So they split the difference based on a number of James Madison proposed back when they were figuring out taxes under the Articles of Confederation the enslaved population would only be counted at three fifths of its total Native Americans. By the way will also appear in Article 1 but they aren't counted for tax or representative purposes.

Nick Capodice: [00:25:03] OK but for those delegates who are opposed to slavery and even those states where it was illegal why did they give in. Why was it necessary to give the slave states some version of what they wanted.

Hannah McCarthy: [00:25:15] Well the South was threatening to walk out.

Alvin Tillery: [00:25:18] The South Carolinians were also incredibly clear about exiting the compact. If they did not sort of get to count some of their slave population in the apportionment and so it was union and slavery or no union. And so they didn't really have a choice if they wanted a federal government. And that was what all of these men were nationalists federalists they had done something that no one believed they could do and they wanted to see the experiment succeed.

Hannah McCarthy: [00:25:53] So there is an emotional element to this right. They did something that nobody had ever successfully done before they waged war against their motherland and won and started a brand new kind of nation. These delegates wanted to leave Philadelphia as an intact union. But Alvin says it's also a practical choice.

Alvin Tillery: [00:26:12] The overarching concern is the national security concern that England is coming back. George will be back. And as we all know he did comeback in the War of 1812. And so the argument for union is both an argument for financial efficiency and expediency so you could actually get credit in international credit markets. Loan money build up the industry in the country so that you can compete with Britain and France but also provide for a common defense.

Hannah McCarthy: [00:26:48] The three fifths compromise was adopted on July 12th and most states voted yes. Only Delaware and New Jersey delegates were unanimously against it.

Nick Capodice: [00:26:58] I think it's easy for us to revere the United States Constitution because provisions like the three fifths compromise were taken out eventually but it's worth thinking that this is something that's been baked into it from the very beginning and you can't help but wonder how it shaped us.

Alvin Tillery: [00:27:15] Well I mean it it absolutely inflated the representative power of the slave states in the Congress and the House of Representatives and in the Electoral College. And what that means is that you know five of the first seven presidents are slave owners from you know Virginia. Right. And you know which was the most populous and powerful of the slave states. And this legacy extends into the 19th century the late federal period. It allows southerners to establish a democratic party and to put in place things like the gag rule which means you can't talk about slavery or introduce petitions from northern states against slavery in Congress. And so that takes slavery off the table has a life political issue for 20 years essentially.

Hannah McCarthy: [00:28:14] Even after the three fifths compromise and a clause requiring fugitive slaves to be returned to their masters were removed from the constitution following the Civil War. Southern states found ways to disenfranchise their African-American population while at the same time gaining even greater population numbers. Now that all people were fully counted. Here's David Stewart again.

David O. Stewart: [00:28:37] You know they made grimy compromises. There's no other word for it. The Electoral College is a mess. On the slavery provisions are unattractive. When Madison had to write about them in Federalist Papers clearly found it almost impossible. But you had to get a deal. Otherwise the country might well fall apart. And that's the stakes they were playing for. And if you had to swallow something you hated. Most of them did.

Hannah McCarthy: [00:29:07] And so they keep going. Madison's plan called for an executive power should it be one man or a committee. Well most states have one. So when it is but can this executive veto laws. Sure but the veto has to be overridden by two thirds of both houses. Well how are we going to elect this one powerful man direct election by the people. No absolutely not. What about some kind of indirect system.

Nick Capodice: [00:29:37]  We've been here before. The electoral college is so weird.

Hannah McCarthy: [00:29:41] But it is a compromise. And then came another this one about the slave trade itself. Ten states had banned the import of enslaved people. Georgia and the Carolinas threatened to walk out if they dared to do the same thing to them. So they compromise. Yes Congress would eventually have the power to ban the slave trade entirely. Initially they decided that could happen in 1900. They talked about it for a while and then pushed it back to 89.

Nick Capodice: [00:30:15] And there are so many disappointing even shocking steps so many ugly compromises that came out of that room. But then again this plan sticks around for over 230 years and in so many ways it has benefited this country. There's a lot to be dissatisfied and distraught over but we live in a democratic system that can actually work.

Hannah McCarthy: [00:30:43] Linda Monk actually pointed out the elements of the original Constitution that I think gave it the ability to last.

Linda Monk: [00:30:51] So you know the laws that are passed day to day by Congress or parliament a majority can improve them and a majority can disapprove them. But for the American constitution it requires a two thirds majority of the Congress or state conventions to propose amendment and then a three fourths majority of the states to approve it. And so that's a high bar we don't want our constitution changing at the whim of the people. But we do want it to be subject to the people.

Hannah McCarthy: [00:31:27] That would be Article 5 the amendment clause.

Nick Capodice: [00:31:29] OK. Now obviously the words We the People did not apply to all people in the U.S. when they were written. But there is a little bit of we the people in that article isn't there. All this talk about representation. It goes both ways. Yes it's about the congresspeople but it's also about the people people the people who elect them. And I feel the same goes with the amendment process.

Hannah McCarthy: [00:31:52] Yeah absolutely. The We The People slowly came true. Because even though it didn't apply to everyone at first and you know in some ways still doesn't it is their right. We can rise to that. I kind of feel like the amendment clause itself is a built in acknowledgment that words and ideas of 1787 may not apply to 1887 or 1987.

Linda Monk: [00:32:21] Those first three words The most important words in the Constitution really we the people. And it's it's really expressing this idea of popular sovereignty popular meaning the people's sovereignty meaning power and the preamble makes it clear that the power that is the people's is then used to ordained the Constitution. Those are the people who have the power it's the people have the power and they give it to the Constitution and that's why the president the Congress the Supreme Court any federal and state officer takes an oath to defend the Constitution of the United States. That's the Supreme source of our power.

Hannah McCarthy: [00:33:12] There was one last compromise to come out of that four month process. This one was suggested by the convention's oldest delegate Dr. Benjamin Franklin. At this point in his life Ben Franklin has gone from being a slave owning white supremacist to the president of Philadelphia's abolitionist society. This is a man who has changed his mind. Radically over time. Franklin says you know I don't like everything about this constitution but that doesn't mean that I will always feel that way. The older I grow he says the more apt I am to doubt my own judgment and to pay more respect to the judgment of others. And Nick I know that you have always harbored a desire to play Ben Franklin in 1776 the musical and while I cannot give you that I can do this one small kindness. Would you read Franklin's final statement to the convention. Here goes. On the whole sir I cannot help expressing a wish that every member of the convention who may still have objections to it would with me on this occasion. Doubt. A little.

Nick Capodice: [00:34:27] Of his own infallibility and to make manifest our unanimity. Put his name to this instrument.

Hannah McCarthy: [00:34:52]  And you know in the end despite Franklin's appeal only thirty-nine delegates signed. Three abstained and thirteen had already left the Convention for various reasons.

Hannah McCarthy: [00:35:04] Not everyone agreed on this new system of government. Not everyone was happy with the compromises that went into it but they were walking out of that stifling room with a new plan a new system. It was a radical moment.

Nick Capodice: [00:35:19] There is one last compromise. This constitution is going to have to wrestle with them it's a whole Bill of them. We the People have a few things to say about this new system of government. And if I remember correctly there's a whole article that says we get our say.

Hannah McCarthy: [00:35:36] Oh that's right. Number seven the ratification clause. But if you think that those framers are going to sit back and watch that debate from the sidelines you are sorely mistaken. They've just compromised their whole summer away. They worked hard for this thing. If the states are going to debate this. The framers are going to put in their two cents. Actually it's their 85 cents. It's time for a strong federal government, Nick. And The federalists will not go quietly.

Nick Capodice: [00:36:07] That's next time on civics 101.

Hannah McCarthy: [00:36:11] Today's episode was produced by me.

Hannah McCarthy: [00:36:17] Hannah McCarthy with Nick Capodice. Our staff includes Jacqui Helbert, Daniela Vidal Allee and Ben Henry. Erika Janik is our executive producer. Maureen McMurry subsists on msuh cakes and three cups of black tea.

Nick Capodice: [00:36:28] If you want to know more about how our Constitution came to be and trust me there is a lot more to learn. You can find resources galore at Civic101podcast.org.

Hannah McCarthy: [00:36:37] Music in this episode by Blue Dot Sessions, Jingle Punks, Quincas Moreira, Josh Lippi and the Overtimers, Jhazzar, Vibe Mountain Sir Cubworth, Conrad Old Money, Bad Snacks and the United States Marine Band .

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: Articles of Confederation

While a famous committee of five drafted the Declaration of Independence, a far more unsung committee of thirteen wrote America's first rulebook. The Articles of Confederation was our first constitution, and it lasted nine years. If you prefer Typee to Moby Dick, Blood Simple to A Serious Man, or Picasso's Blue Period over Neoclassicism, you just might like the Articles of Confederation.

The fable of its weaknesses, strengths, rise, and downfall are told to us by Danielle Allen, Linda Monk, Joel Collins, and Lindsey Stevens.

Special thanks to Paul Bogush, who taught us to play Articles of Confederation the Game with a sack of blocks. If you want to see his game in action, you can read about it here! Other teachers have tried Paul’s game as well, with tremendous results.

Editor’s Note: At one point Joel Collins notes that the Confederation Congress met in Lancaster, PA. While this meeting was during the debate about the Articles, it was in September 1777 and therefore was the Second Continental Congress, not the Confederation Congress.

Graphic Organizer: Have students take notes on this sheet while they listen to the episode

Episode Clips

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TRANSCRIPT

 NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101: Articles of Confederation

CPB: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.

Nick Capodice: [00:00:04] I think now is as good a time as any to admit a bit of a minor confession. I sometimes have so much trouble reading primary source documents. I've got Article 9 in the Articles of Confederation in front of me I think I have read it ten times. I don't know what it means. These documents were written a long time ago.

Nick Capodice: [00:00:24] They can be hard to understand.

Paul Bogush: [00:00:26] Primary sources are difficult to bring to light.

Nick Capodice: [00:00:29] This is Paul Bogush. He's a teacher at Dag Hammarskjold middle school.

Paul Bogush: [00:00:32] A lot of times in a classroom it's very easy to give your standard quiz where the kids will read through the documents. They'll name the different parts and spit it back on a test. But I wanted my kids to ingest the documents a little bit differently.

Nick Capodice: [00:00:44] So how on earth do you convey to someone the challenges of governing under the Articles of Confederation without putting them in a chair and making them read it a hundred times.

Nick Capodice: [00:00:54] So Hannah imagine you're sitting in a class you're about to do a blah blah boring day and your teacher comes in with his giant sack of blocks and just dumps them on the table. Heads up. No class today. We're going to play a game.

Hannah McCarthy: [00:01:10] You love games.

Hannah McCarthy: [00:01:10] I do.

[00:01:12] So the teacher cues up some war music, and they play Articles of Confederation. The class is divided into teams which are states, and more students are put in the bigger states.

Paul Bogush: [00:01:25] So the Group of Eight represented Virginia the Group of Six represented Pennsylvania. The group of four represented New York. The group of two represented Connecticut. And finally the one lonely kid by themselves represented Delaware.

Nick Capodice: [00:01:37] Oh poor Delaware. But each state got a different amount of blocks and was told to make a big strong fort that is still standing at the end of class. And the bigger your state was the more blocks you got. So Virginia got a ton of blocks and Delaware got three. Delaware's fort is done in like 5 seconds. But. Every state could do whatever they wanted to help each other out. They could trade blocks they could sell blocks that could help build each other's forts and they could change any rules of the game at all as long as they followed two guidelines.

Paul Bogush: [00:02:10] Rule number one: any state can propose a new rule as long as four out of the five groups agree to it. And rule number two: Each state would only get one vote regardless of their size.

Hannah McCarthy: [00:02:21] So they can do anything.

Nick Capodice: [00:02:23] Anything.

Hannah McCarthy: [00:02:23] But they need to convince almost all of the other states to agree.

Nick Capodice: [00:02:28] Yeah. And Delaware right off the bat proposes a rule that all states should share their blocks equally so everyone gets the same amount. And you can probably guess how that went. So Delaware tries another tack.

Paul Bogush: [00:02:39] Delaware also tried to buy blocks from other states but none of the other states want to sell them. They immediately shot Delaware down and so Delaware was stuck with just their three measly little blocks. But at that moment, me, who is playing England, stepped in and offered to sell Delaware some of the blocks that we had on hand. The other states thought this was immensely unfair and so they tried to stop it.

Nick Capodice: [00:03:06] But that didn't work because Connecticut also wanted more blocks and bought them from England.

Hannah McCarthy: [00:03:11] Did they pass any rules at all?

Nick Capodice: [00:03:12] I spoke with several teachers who played Paul's game and they all said no matter how many times they've played it not one rule got passed. And at the end the class the teacher looks at all the forts of the different states and says, "What if I told you that Delaware's fort is solely responsible for protecting the entire class?"

Paul Bogush: [00:03:36] In every single class that I did this activity the kids that were in the group from Virginia all came to the same conclusion. And that was if they weren't so greedy and selfish and if they cared more about the other states during the process that they would still have power when it was all over.

Hannah McCarthy: [00:03:53] I'm not 100 percent certain how this game is related to the Articles of Confederation.

Nick Capodice: [00:03:58] I think you will be by the end of this episode.

Hannah McCarthy: [00:03:59] All right.

Hannah McCarthy: [00:04:00] But what did those students learn that day.

Paul Bogush: [00:04:04] That we basically need government to save us from ourselves.

Nick Capodice: [00:04:13] Not quite in the lauded canon of the Constitution or the Declaration of Independence; this document is usually remembered for one thing. It's weaknesses. I'm Nick Capodice.

Hannah McCarthy: [00:04:26] And I'm Hannah McCarthy.

Nick Capodice: [00:04:27] And this is Civics 101 our founding documents series. Today we're talking about America's first rule book, the Articles of Confederation. To start, Harvard professor Danielle Allen told me that the Articles of Confederation are even mentioned within the Declaration of Independence.

Danielle Allen: [00:04:45] If you go back to that second sentence where they say that it's the job of the people to lay the foundation on principle and organize the powers of government? That, those two phrases are there to-do list. And that's exactly the committees they set up in June of 1776. They needed a committee to articulate the foundation of principle, that was the committee drafting the Declaration of Independence, and then they needed a committee to organize the powers of government. And that was the committee drafting the Articles of Confederation.

Nick Capodice: [00:05:11] This was a committee of 13 led by anti-independence Congressman John Dickinson of Delaware.

Hannah McCarthy: [00:05:17] So they were written even before we declared independence from Britain.

Nick Capodice: [00:05:22] No because there were sixteen months of revisions.

Nick Capodice: [00:05:26] And then the Continental Congress adopted them in 1777 but they weren't fully ratified by the states until 1781. The American revolution didn't end till 1783.

Hannah McCarthy: [00:05:37] Ok so Articles of Confederation what do they say.

Nick Capodice: [00:05:40] The first article is just "the style of this Confederacy shall be the United States of America."

Hannah McCarthy: [00:05:47] Confederacy, like the South in the civil war?

Nick Capodice: [00:05:52] Yeah Confederacy is just a style of government with individual sovereign states. No big central power running everything. The most famous one today is the European Union.

Hannah McCarthy: [00:06:03] But why did we want it to be like that.

Nick Capodice: [00:06:05] Here's Linda Monk, she's a constitutional scholar and the author of The Bill of Rights a User's Guide.

Linda Monk: [00:06:10] I think it's it's a new government trying to decide OK we didn't like the way the old King did it or the old government did it. How are we gonna do it now? I mean we, think about that that the colonies, the former colonies were able to unite together to fend off the world's strongest military was astonishing. But again as Washington recognized, a revolution by itself is commonplace.

Nick Capodice: [00:06:44] A revolution is an idea and that's a lot easier than a rulebook. We wanted to make sure we got everything right. And when you think about the mindset of the people who wrote this they were coming from a monarchy and they wanted this new system of government to be as opposite as possible to what rule under England was like. I've even heard teachers refer to this using a Goldilocks metaphor, that monarchy was too hot and the Articles of Confederation were too cold.

Hannah McCarthy: [00:07:11] And the constitution is going to be just right.

Nick Capodice: [00:07:13] Exactly. I asked Joel Collins, law professor at South Carolina Honors College, about the Goldilocks metaphor.

Nick Capodice: [00:07:20] Too, hot one's too cold, and constitution is just right.

Joel Collins: [00:07:22] Well that's a simplification. I don't agree with you. OK let's talk about the articles. So so here we are. We have declared our independence we fought for our independence. We've won the surrender of Cornwallis at Yorktown. By the way I call it The War of Independence not the Revolutionary War. We weren't trying to overthrow King George just wanted our freedom. But the one thing that these newly formed states had in common was a desire to avoid a strong central government. They did not want that. The articles are referred to, in the language of their articles, a firm league of friendship. And the articles were designed to be really inefficient.

Hannah McCarthy: [00:08:08] So how did this purposefully inefficient government work?

Lindsey Stevens: [00:08:12] They have one branch of government and that's the Legislative branch. And they call that the Confederation Congress.

Nick Capodice: [00:08:18] That's Lindsey Stevens, government teacher from Katy Texas.

Lindsey Stevens: [00:08:21] It's unicameral so there's only one group and one state gets one vote. So that's the structure of it. And then they specifically list what powers the national government can have. They have the power to coin money the power to make treaties with foreign nations and they also do have the power to request money from the states.

Nick Capodice: [00:08:42] Request money. That word request. It's really important. The federal government isn't taxing states. They're just asking the states for money.

Hannah McCarthy: [00:08:51] And what if the states say no?

Nick Capodice: [00:08:53] You just stand on your porch and shake your fist at them and then if you're another state you say, well look Delaware didn't do it I'm not going to do it either.

Lindsey Stevens: [00:09:00] After the American Revolution ends the states no longer have a common purpose. That was what was holding this League of Friendship together, that they all had a common interest and that was winning the American Revolution and sticking it to the man sticking it to the British government. Once that common interest is gone, the quarrels, the fighting begins.

Linda Monk: [00:09:20] It's like 13 arguing brothers and sisters they all want to be equal.

Nick Capodice: [00:09:24] That's Linda Monk again.

Linda Monk: [00:09:26] No, you take out the garbage. No I don't want to take out the garbage, you take out the garbage. And it particularly came down to this issue of taxation of how are you going to support a government if the states individually aren't willing to pay taxes to cover the costs? And like I say the, can you imagine today if we had an army of unpaid soldiers? Would we expect that government to long continue? No. So the biggest issue was that Congress as it would say the United States in Congress Assembled, that was actually the name of the government. It had some powers, but fundamental is the power to tax. And until you had some agreement amongst the states that was going to allow that it was going to be very difficult.

Hannah McCarthy: [00:10:17] The articles could be amended right.

Nick Capodice: [00:10:19] Yes.

Hannah McCarthy: [00:10:19] So why didn't we just add an amendment saying that the government could tax the states?

Nick Capodice: [00:10:24] Well the amendment process itself was a huge issue.

Joel Collins: [00:10:28] It took 13 out of 13 to change the articles. Rhode Island, which they call Rogue Island wouldn't ever go along with anything. They were always the "no" vote. And as a result of that they couldn't get that 13 out of 13 votes necessary. By the way each state had one vote. That's the way it worked back then. And that's the way it worked at the Constitution Convention, each state had one vote. It took nine out of 13 to enact anything. They never had the power to create and fund an army or a navy. They never had a right to control interstate commerce, and these states were effecting disadvantages on each other by enacting tariffs and levies, duties and all that. And so the trade was just a mess. There were menacing foreign powers looking at these rich colonies sitting there, you know, unorganized and ununited. It had no chief executive.

Hannah McCarthy: [00:11:32] No president at all.

Nick Capodice: [00:11:34] Well there was a president of Congress but that's like for trivial pursuit. Not a president with powers like you and I know it. There was also no judicial branch no national courts and no official meeting place. No, like, building.

Joel Collins: [00:11:48] Go back and read about all the various places the Articles of Confederation, the Confederation Congress met. They met New York, Philadelphia, Lancaster Pennsylvania one time. And one of the books that I assigned to my students David O. Stewart says, "a peripatetic government can never be expected to be very strong and powerful."

Hannah McCarthy: [00:12:10] This doesn't sound good.

Joel Collins: [00:12:11] There were so many problems. There was no common currency. Think about that. You couldn't go into some other state and use your money because it was no good. There were exchange rates but they wildly fluctuated and they were not consistent. For one thing without liquid currency available people who owed money and who couldn't pay their debts with bartered crops or something like that were in a heck of a bind.

Nick Capodice: [00:12:41] Hannah you've got to look up photos of this early American currency. It may have been an economic nightmare but it was certainly a beautiful one. You've got Connecticut shillings, Rhode Island dollars, and Virginia pounds sterling.

Hannah McCarthy: [00:12:54] I'm seeing the flaws of the Articles of Confederation but were there any strengths to it?

Nick Capodice: [00:12:59] I asked Lindsay that exact question.

Lindsey Stevens: [00:13:01] Under the Articles of Confederation the Continental Congress was able to pass one very successful law and that's the Northwest Ordinance.

Lindsey Stevens: [00:13:11] The Northwest Ordinance decided what we were going to do with the land that we had acquired through the Treaty of Paris at the conclusion of the American Revolution.

Nick Capodice: [00:13:20] This land that we got from Britain at the end of the war was called the Northwest Territory and it includes most of modern day Ohio Indiana Illinois Michigan and Wisconsin.

Lindsey Stevens: [00:13:30] And the question that the delegates had to answer is, "What are we going to do with this land? Are we going to make it a colony? Are we going to make it a territory? Can it be admitted as a state?" And they saw the writing on the wall that if they left it as a colony the Territory could eventually have another revolution.

Hannah McCarthy: [00:13:50] So this is another example of let's not do things the way that England did. We don't want another little colony to break off and have a revolution, right?

Nick Capodice: [00:13:59] Right. So they say these territories can become states part of the United States. But there are some requirements;.

Lindsey Stevens: [00:14:05] They have to have self-government, they have freedom of speech freedom of the press freedom of religion. They're not allowed to have slavery.

Hannah McCarthy: [00:14:13] OK. Stop. This ordinance says slavery is not legal in new states?

Nick Capodice: [00:14:20] Yep. We're three documents in and we have finally arrived at our first national limitation on the expansion of slavery. But states that practice it already are allowed to continue to practice.

Hannah McCarthy: [00:14:33] And therefore become even more rich and powerful.

Nick Capodice: [00:14:36] Yes. So this can be viewed as a pro slavery and an antislavery ordinance. But that aside, if a new territory abides by these rules it can apply to become a state. They have to have a constitution and they had to be approved by the Congress.

Lindsey Stevens: [00:14:53] But once they went through that process they were able to have equal rights and equal representation in the government as the original 13 states. And that was really a revolutionary idea of us adding more states to our union that really didn't happen in the past.

Hannah McCarthy: [00:15:10] So there is a little good but it seems like a lot of problems in this weak system of government. How does it all come crashing down in the end.

Nick Capodice: [00:15:21] It crashes like this. You got this government that can't tax,, can't collect money and therefore can't pay soldiers. And as Linda Monk puts it:.

Linda Monk: [00:15:30] Unpaid soldiers after war's over are not a good idea.

Nick Capodice: [00:15:35] And it leads to something called Shays' Rebellion.

Linda Monk: [00:15:39] We can think of that term harshly today, call it rebellion instead of, say, revolution. But really Daniel Shays had been a captain, he was a Revolutionary War veteran. These were farmers from Western Massachusetts who had gone off to defend their country while the bankers from Boston were foreclosing on their debts and taking away their homes. That didn't sound fair or to the people of western Massachusetts and Shays and other unpaid veterans.

Joel Collins: [00:16:09] So he and these farmers decided to march on the armory in Springfield Massachusetts and seize the guns and weaponry and ammunition, and they were gonna then march down to where the Confederate Congress was meeting. And they were gonna absolutely fire 'em up, they were gonna take over the government.

Nick Capodice: [00:16:33] So Massachusetts says "we need help" and the federal government requests that the states chip in with money and soldiers and cannon. But all those states say they've got their own problems.

Hannah McCarthy: [00:16:43] So what happens.

Nick Capodice: [00:16:44] What happens is wealthy private citizens are losing money due to this uprising pool their resources together and they hire a private military to quell Shays and the 4000 plus rebels. But look at the implication of this. You've got private citizens hiring private citizens to go to war with private citizens. Is that what you want? Is that what America is? Is that what this new nation is going to be like? And if it happens in Massachusetts who's to say it's not going to happen in your state? Shays' Rebellion is a cautionary tale.

Nick Capodice: [00:17:24] So we're at the beginning of the end. As is so often the case it comes down to money. All this time the states have been doing whatever they could with their own constitutions and every state had their own constitution by the way, just to make things work when it came to interstate commerce, dealing with those Rhode Island shillings and those Connecticut dollars. So what they had to do is create treaties just to trade with each other, like foreign nations. And there's a call for a political convention at Mann's Tavern in Annapolis Maryland to talk about how we should handle trade between the states.

Joel Collins: [00:18:01] James Madison was there. Only five states sent representatives. The host state Maryland sent nobody.

Lindsey Stevens: [00:18:09] They have been given directives from their states to discuss interstate commerce and to create trade agreements. But on New Jersey's directive from their state it says "anything else pertinent to the success of our country."

Nick Capodice: [00:18:23] Anything else pertinent to the success of our country. Anything else? New Jersey is like, "anything any of us, you, want to chat about while we're all here? Some sort of big elephant in the room? Maybe we could talk about fixing this disaster of a government system? But they can't do much with just five states so they decide to meet up again next year. But not this bar in Maryland. Let's do it proper, let's do it in Philadelphia.

Hannah McCarthy: [00:18:56] I think I know where this is going....

Nick Capodice: [00:18:56] The point of this episode is not to say the Articles of Confederation were an abject failure and oh how foolish were we. They taught us a great deal about ourselves. So I want to end with a final thought from Lindsay Stevens.

Lindsey Stevens: [00:19:08] Some people call the Articles of Confederation a "learning to crawl before you walk" document, taking the first steps of creating a national government. Some people consider it to be a total mistake. I think those people are looking at it with with the insight of what we know today.

Lindsey Stevens: [00:19:25] If you think about it though the Articles is really a good first step towards a national government. What we learned from the articles is that absence of power doesn't create a limited government, it actually creates an ineffective government. You nkow, government has a purpose. And that is to protect the unalienable rights of its citizens. In order for that to happen we do have to give the government some power. We just have to be careful about how we do that. And so we developed a system of checks and balances, separation of powers in order to make sure that that system stays in place and that the government's power is limited.

Nick Capodice: [00:20:00] So, did we learn from our mistakes? Can we keep this republic, Hannah?

Hannah McCarthy: [00:20:07] Find out next time on Civics 101.

Nick Capodice: [00:20:11] Today's episode was produced by me, Nick Capodice, with Hannah McCarthy.

Hannah McCarthy: [00:20:14] Our staff includes Jacqui Helbert, Daniela Vidal-Alee and Ben Henry. Erika Janik is our executive producer.

Nick Capodice: [00:20:20] Maureen McMurray is a justice fighter in the firm league of friendship.

Nick Capodice: [00:20:24] If you want to check out some photos or read more about Paul Bogush's lesson plan on teaching the Articles of Confederation with blocks, head on over to our website civics101podacst.org.

Hannah McCarthy: [00:20:35] Music in this episode by Jahzzar Blue Dot Sessions Kevin McCloud, ASura, and Scott Gratton.

Nick Capodice: [00:20:42] Civics 101 is a production of NHPR. New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: Declaration of Independence

America declared independence on July 2, 1776. But two days later it adopted this radical, revolutionary, inclusive, exclusive, secessionist, compromising, hypocritical, inspirational document. What does it say? What does it ignore? 

This episode features many scholars with differing opinions on the Declaration: Danielle Allen, Byron Williams, Cheryl Cook-Kallio, Woody Holton, and Emma Bray. 

Graphic Organizer: Have students take notes on this sheet while they listen to the episode

Episode Segments

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TRANSCRIPT

 NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Founding Documents: Declaration of Independence

Adia Samba-Quee: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.

1776: [00:00:08] We are about to brave the storm in a skiff made of paper. And How it shall end, god only knows.

Nick Capodice: [00:00:16] I don't know how shall end. But this. This was our beginning July 4, 1776. This was the moment that we became we.

Nick Capodice: [00:00:39] About a month earlier Richard Henry Lee of Virginia read the following resolution before the Continental Congress. "That these United Colonies are and of Right ought to be free and independent states; that they are Absolved from all Allegiance to the British Crown and that all political connection between them and the State of Great Britain is and ought to be totally dissolved.

Nick Capodice: [00:01:07] A committee of five was appointed to draft a statement for the world to declare the reason for such an action. Lee's resolution was debated and adopted by 12 of the 13 colonies on July 2nd 1776. New York abstained. And on the fourth the Declaration was adopted. It was sent to a young Irish immigrant, John Dunlap official printer of the Congress, to be turned into about 200 broadsides to be sent around the colonies. 26 of these, called the Dunlap broadsides, are known to exist today. These weren't printed to sit in glass cases or hang on the walls of state. These were printed to be read out loud. To assemblies, to committees, on Town Hall steps, to the commanders and troops who had already been at war for over a year. Copies were made for the colonists in German and French. And one Dunlap broadside was put on a ship to England where it would be read by King George himself. So whether we're celebrating the successes or examining the flaws of this great democratic experiment, this was the moment that they became our successes. Our flaws. This is the reason I'm a little nervous investigating our literal founding document. And there's one more reason that I hesitate to mention.

1776: [00:02:41] Vote yes

Nick Capodice: [00:02:46] When I'm trying to do a levels check for a guest on this very show. Instead of asking them the industry standard question which is "what did you have for breakfast?" I really like to ask "what is the movie that you watched more than any other in your youth".

Nick Capodice: [00:03:02] Did you have a tape that got played more than any other in your household?

Byron Williams: [00:03:06] A video?

Nick Capodice: [00:03:07] Yeah.

Byron Williams: [00:03:07] Oh absolutely.

Nick Capodice: [00:03:08] What was it.

Byron Williams: [00:03:08] Casablanca.

Hannah McCarthy: [00:03:12] I watched Casablanca for the first time last year.

Byron Williams: [00:03:14] Are you serious.

Hannah McCarthy: [00:03:15] Yeah.

Byron Williams: [00:03:15] It is the greatest movie ever made.

Hannah McCarthy: [00:03:18] It's incredible.

Byron Williams: [00:03:18] It, Let's be honest it is a major piece of propaganda.

Nick Capodice: [00:03:23] That's Byron Williams we'll hear from him a little later. He loved a major piece of propaganda, but so did I.

1776: [00:03:30] Good God what in the hell you waiting for!

Nick Capodice: [00:03:36] I've seen the movie 1776, a musical about our Founding Fathers singing and dancing their way towards the signing of the Declaration independence hundreds, maybe even a thousand times. My childhood wish was to one day play Ben Franklin. Old Ben F.

Hannah McCarthy: [00:03:54] Your childhood wish.

Nick Capodice: [00:03:57] Just like I was born to play that part. So when working on this episode and I was able to get in contact with Danielle Allen, one of the top Declaration of Independence scholars in the world.

Danielle Allen: [00:04:08] I'm James Bryant Conant university professor at Harvard. I'm a political philosopher so I'm a kind of all arounder Declaration of Independence person; history, text, the impact of it and so forth.

Nick Capodice: [00:04:20] I held my breath and asked her for thoughts on the movie.

Nick Capodice: [00:04:25] Did you have any feelings about the film 1776 and its accuracy of depicting the situation.

Danielle Allen: [00:04:29] I'm embarrassed to say, I, yeah I still have not actually seen it.

1776: [00:04:37] Oh Sweet Jesus

Hannah McCarthy: [00:04:40] Oh Nick.

Nick Capodice: [00:04:40] I know.

Hannah McCarthy: [00:04:40] You sounded so nervous.

Nick Capodice: [00:04:40] I know, of course she hasn't seen it, cool people do not see it. Nobody's seen it.

Hannah McCarthy: [00:04:44] Well I've seen it. After you made me see it.

1776: [00:04:48] Does anybody care?

Nick Capodice: [00:04:49] Alright, I promise I will be more judicious about my use of clips from 1776 but a few sneak their way in. I'm Nick Capodice.

Hannah McCarthy: [00:05:01] I'm Hannah McCarthy.

Nick Capodice: [00:05:02] And today on Civics 101 we're exploring the greatest breakup letter of all time, the Declaration of Independence. What it says, what it doesn't say.

Nick Capodice: [00:05:18] To start, you should read it. It's not that long.

Danielle Allen: [00:05:21] It's short it's only 1337 words.

Nick Capodice: [00:05:24] That's Danielle Allen again.

Danielle Allen: [00:05:26] Yet it had the biggest possible of jobs. It had the job of justifying one of the most consequential political decisions ever taken, the decision of the colonists to declare independence from Britain and formally undertake a revolution.

Nick Capodice: [00:05:41] And we might take this for granted now. But there was no precedent for this.

1776: [00:05:46] It's never been done before. No colony has broken from it's parents stem in the history of the world!

Danielle Allen: [00:05:51] So think of that you're trying to justify the creation of a new nation. You're trying to justify a war. All in a little more than 1300 words. You don't do that with small ideas you do that with big ideas.

Hannah McCarthy: [00:06:04] Big ideas like people have rights and the government should protect those rights.

Nick Capodice: [00:06:09] Yes. And the biggest of all that if a government fails to do that the people have a responsibility to fix it. Danielle called this a theory of revolution.

Hannah McCarthy: [00:06:19] So where do we even start.

Nick Capodice: [00:06:21] Well there are four parts of the Declaration. There's a preamble, a statement of human rights, a long list of grievances, and then the action; Lee's resolution. We therefore are doing this.

Danielle Allen: [00:06:34] The question to answer for the declaration is what on earth could justify steps of that magnitude. The rest of the declaration as an answer to that question. So I think it's good to start at the end because that way you know what question the whole text is supposed to answer. How on earth could you possibly make the case that it's reasonable to just call yourself a new nation that it's reasonable to declare yourself no longer loyal to, obedient to your king.

Hannah McCarthy: [00:07:01] If youre going to say that you are no longer beholden to the laws of your country you better have a pretty good reason.

Nick Capodice: [00:07:08] There were good reasons and there were many. There are 27 very specific grievances in the Declaration. These are acts of the king that demonstrate his tyranny and therefore justify a revolution. Concord and Lexington, the first battles of the Revolutionary War, happened over a year before the declaration had been written. But I want to take it back even further and start with civics teacher Cheryl Cook Kallio who boiled it all down to one sentence.

Cheryl Cook-Kallio: [00:07:38] No matter how hard they tried, the English were never going to look at them as being equals. Many people don't think about the salutary neglect that happened in the colonies for 150 years before we started to see the beginnings of unrest.

Hannah McCarthy: [00:07:56] What is salutary neglect?

Nick Capodice: [00:07:58] It was how England governed these colonies. It wanted access to their raw materials. But that is all they wanted. Nobody was enforcing trade laws, nobody was mandating British rule. The colonies were pretty much left to govern themselves.

Cheryl Cook-Kallio: [00:08:14] They just ignored that the colonies even were there. And so you had this large vast amount of land where people from Great Britain would come or people from England would come and recreate their lives. And some would liken the beginning of that period is being a just a blank slate. This idea that you could go in and create a government. Of course they did because they were three months away and 3000 miles away from Parliament and so they were very used to direct democracy.

Nick Capodice: [00:08:46] But then this system of salutary neglect is reversed in the 1750s when England needs a ton of money to do the Seven Years War. This is a massive war and involves all the powers of Europe and this extends to the British fighting the French who are allied with the native tribes. In the colonies it's called the French and Indian War. So England starts to tax. And England start showing up.

Emma Bray: [00:09:10] There is a whole kind of line of increasing hostilities that starts happening.

Nick Capodice: [00:09:16] This is Emma Bray. She's the executive director at the American Independence museum.

Emma Bray: [00:09:20] The British start coming to the colonies. They're being quartered here. And it's not like today where military troops are on bases or have their own homes provided for them. They were being quartered within residents homes here in the colonies. We're getting taxed on goods that we're producing, raw goods that we're creating, giving to England, they then produce it and then we're taxed on them coming back to us. Everything is now getting taxed. So it's not just your sugar, it's your paper it's the Stamp Act, it's every thing. It's tea. It's all of these commodities that you need to live. And at a certain point it just starts to become too much and people are starting to get fed up with it.

1776: [00:10:03] Stamp Acts, Townshend Acts, Sugar Acts, Tea Acts

Nick Capodice: [00:10:07] But it's more than just the money. There are stories of individuals radicalizing.

Cheryl Cook-Kallio: [00:10:14] One of the pieces of discontent was that colonial commissions were considered beneath any level of British commission. So if you were a colonel in the colonial army you were still considered to be below any British commission that was fighting the French and Indian War.

Nick Capodice: [00:10:34] Cheryl told us documented story of one lieutenant colonel who wanted a British Commission and was promised one by General Braddock head of the British army in the colonies.

Cheryl Cook-Kallio: [00:10:43] During a particularly bad battle I mean fierce, General Braddock was killed.

Nick Capodice: [00:10:50] The lieutenant colonel steps up.

Cheryl Cook-Kallio: [00:10:52] He led the surviving soldiers. His horse was shot out from under him twice. He's got musket balls in his jacket. He has really become the epitome of what you think a good British Army officer would look like and he saved the day for those people that were trying to get away because many many many British soldiers were killed during this battle.

Nick Capodice: [00:11:15] He thought this must be sufficient evidence to get that coveted British commission. So he traveled all the way to Boston.

Cheryl Cook-Kallio: [00:11:23] And met with the acting General for the troops in in the colonies and asked for this commission and said I was promised this by General Braddock and was pretty much laughed at.

Nick Capodice: [00:11:34] Maybe by now you figured out who this lieutenant colonel was.

Cheryl Cook-Kallio: [00:11:39] For me that really was one of the scenes that caused George Washington to become radicalized.

Woody Holton: [00:11:49] If you asked me what turned people in New England from mere rebels and protesters into wanting independence I'd say Lexington and Concord.

Nick Capodice: [00:12:00] This is Woody Holton history professor at USC.

Woody Holton: [00:12:03] But if you ask me what turned white Southerners from merely protesting to wanting independence the answer is this informal alliance that African-Americans initiated with the British government. You know that in South Carolina where I live now the majority of the people were enslaved. In Virginia where Jefferson and Washington were 40 percent of the people were enslaved. Enslaved Americans start seeing this battle between the groups that were later going to call loyalists and rebels, enslaved Americans see that split among whites. And they say you know in this gap between one group of whites another group of whites that's an opportunity for us. And they literally go and knock on the door of the governor's palace in Colonial Williamsburg to tell the governor you just give us our freedom we'll help you win this war. And he initially turns them away, as do other colonial governors, but they keep coming. And eventually British officials who had very few white supporters started accepting these black supporters and in fact they issued Emancipation Proclamations very similar to the one that Lincoln would issue. That infuriated whites. One guy referred to it as aiming a dagger at our throats through the hands of our slaves.

Cheryl Cook-Kallio: [00:13:24] The Stamp Act was passed the Coercive Acts were passed. You know at one point the colonial government tried to seat someone in Parliament and they were refused. They sent an Olive Branch petition trying to work things out.

Nick Capodice: [00:13:38] And the king responds by officially declaring the colonies in rebellion.

John Adams: [00:13:46] Those who persist in their treason, the punishment shall be death by hanging.

Hannah McCarthy: [00:13:54] You introduced this as a breakup letter Nick but it sounds like a messy bloody drawn out divorce.

Nick Capodice: [00:14:03] Yeah. You don't respect me. I've tried hard to make this work. We created a Continental Congress expressly to work with you and you have done nothing. Enough. And we get to Lees resolution and the formation of a committee of five to write a declaration.

Hannah McCarthy: [00:14:22] So I've been taught that Thomas Jefferson was the author of the Declaration of Independence but it was co-written by this committee.

Nick Capodice: [00:14:30] Jefferson wrote the Declaration to be sure but the committee made significant changes and you can even see copies of his first drafts with their edits. On the committee of five are some big names you've probably heard before. Ben Franklin, John Adams, Thomas Jefferson himself, but also Robert Livingston from New York and Roger Sherman from Connecticut. Their final draft was presented to Congress on June 28th where over 80 edits were made. But then there were two final changes made to the declaration after Lee's resolution had been adopted. They were made on July 3rd. The first was a removal of reference to the British people as they wanted to place the blame solely at the feet of the king. But the second was the removal of a grievance that becomes a central plot point in 1776.

1776: [00:15:22] He has waged war against human nature itself and the persons of a distant people who never offended him. Captivating and carrying them into slavery in another hemisphere. Determined to keep open a market where men should be bought and sold...

Byron Williams: [00:15:34] It was a stinging critique on the slave trade.

Byron Williams: [00:15:39] I'm Byron Williams. I'm an author national columnist, adjunct professor at Wake Forest University and the host of the NPR-affiliated The Public Morality.

Nick Capodice: [00:15:49] The declaration almost had a section that denounced the practice of slavery but it was removed.

Byron Williams: [00:15:54] The argument for that has been that the primary reason for coming together was independence. They did not want to get bogged down in secondary issues, slavery being one of them, or more to the point that it wasn't a time to discuss the efficacy of human bondage if you will.

Nick Capodice: [00:16:19] Now you might think that this was a fight between the north and the south. But it was actually a coalition of southern slave owners and northern merchants who profited from the slave trade. This is a huge moment in the movie when South Carolina Representative Edward Rutledge just takes the North to task.

1776: [00:16:37] Our northern bretheren. Feeling a bit tender towards our slaves. They don't keep slaves, oh no. But they're willing to be considerable carriers of slaves to others.

Danielle Allen: [00:16:54] First of all important to realize that already in 1776 opinion about slavery was split. So the committee of five that drafted the Declaration was not composed solely of slaveholders. Thomas Jefferson who chaired the committee was a slaveholder. John Adams was not, he always thought slavery was a bad thing and never owned slaves. Benjamin Franklin had been a slave owner earlier in the eighteenth century but by this point he had liberated his slaves and had become somebody who was committed to abolition. So the question of where slavery fit in the document was complicated. In fact the phrase life liberty and pursuit of happiness is a compromise phrase that takes the language from the antislavery position. The fact that the language is about happiness not property was an antislavery choice.

Hannah McCarthy: [00:17:43] Life, liberty and property. That's John Locke right. That was his idea. These things that government is supposed to protect. This is what you have a right to. So how is striking property and making it happiness and antislavery pursuit.

Nick Capodice: [00:17:59] So that word 'property' and the desire to protect it had become code. Code for defending the institution of slavery.

Danielle Allen: [00:18:08] So when you look closely at the text of the declaration you can see both the antislavery voices in the phrase The Pursuit of Happiness. And you see the proslavery voices in that erasure of the text condemning King George for the slave trade. But even with the clause about slavery removed, that line that all men are created equal became a rallying cry for abolitionists after independence was declared. So in January of 1777 Prince Hall, a free African-American in Boston, quotes from the language of the declaration and submitting a petition to the Massachusetts General Assembly seeking the abolition of slavery. And the language factors in for other abolitionists as well. And by 1780 slavery has been abolished in Massachusetts, Pennsylvania, and Vermont. So we fail to recognize actually that the Declaration of Independence was also the moment that the project of abolition is crystallized in the U.S. So the document is not just about what slave owners wrote and thought. It is also about what those who were opposed to slavery wrote and thought.

Byron Williams: [00:19:08] And we see it through the abolitionists you know to do Frederick Douglass and others. And Angelina Grimke. People always pushing for this notion of freedom and so to be a country that is formed on this idea and part of that idea is freedom; to hold some in bondage is incongruent.

Hannah McCarthy: [00:19:34] That is something that Americans have wrestled with from Frederick Douglass to my 8th grade social studies class. How on earth can a document say all men are created equal but not include women African-Americans the Native Nations, everyone else in the country.

Nick Capodice: [00:19:54] Well Hannah, one potential and disputed reason for this could be that maybe they didn't even really mean it. Woody Holton even called it a throwaway line.

Woody Holton: [00:20:05] The yada yada phrase. All men are created equal is the yada yada phrase. And of course it's I don't think it's that now. That's how we can change the meaning of a document.

Woody Holton: [00:20:14] The fundamental right that the Declaration of Independence asserts you know it's mostly just a list of complaints. No one ever reads a complaints except NPR once a year. But it's the fundamental right that they were contending for was the right of secession. All of stuff about all men are created equal. They're say that's a build up to saying, "well OK everybody is equal and we've got certain rights and one of those rights is to create governments but then also to get rid of governments if we don't like them and we don't like the government of George the Third in parliament. So we're gone." But before the year 1776 was out Lemuel Haynes, who was an African-American soldier in the Continental Army, wrote an essay unpublished at the time called Liberty Further Extended where he said, "Hold on a second, that phrase that you kind of rushed through Mr. Jefferson, all men are created equal. Let's stop and talk about that a little bit." Others did that as well culminating in Lincoln at Gettysburg saying this country was not formed by the Constitution it was formed by the Declaration. And so what all of those Americans beginning with Lemuel Haynes in 1776 did was transform a an ordinance of secession into a universal declaration of human rights.

Nick Capodice: [00:21:38] This relationship between the declaration and slavery is frequently addressed. But Danielle brought up a grievance that's very rarely talked about it was glossed over when I was in school it's not in 1776.

Danielle Allen: [00:21:50] And this is really for me the worst moment in the Declaration the one piece of the Declaration that still I think really hurts. And this is where they say that they complained that the king has excited domestic insurrection amongst us and has endeavoured to bring on the inhabitants of our frontiers the merciless Indian Savages whose known rule of warfare is an undistinguished destruction of all ages sexes and conditions. And that, the treatment of Native Americans by the colonists really was was reprehensible and we still haven't fully acknowledged that fact. Whereas in fact you can see antislavery voices in the declaration you can't say the same thing about the treatment of Native Americans, you can't see a moment of sort of positivity in the Declaration on that front. And for me there's a deep lesson there because it means that as we think about the values of the Declaration in the 21st century we have the job of folding into those values a true principle of inclusion. A true principle that embraces all the peoples of this continent in a vision of how to achieve safety and happiness for all of us.

Byron Williams: [00:23:02] Thomas Jefferson said he wanted to write an expression of the American mind. He achieved that in my view in a single sentence, you know we hold these truths to be self-evident that all men are created equal endowed by their Creator with certain rights among them life liberty and the pursuit of happiness. So right there in that single sentence he's enjoining liberty and equality as part of the American narrative. I mean that I mean that is, so right there. Not based on religion, not based on homogenisation, liberty. This idea that we would be a country based on liberty and equality. That in and of itself is profoundly radical. Has not done has not been achieved before or since. That a country would be formed on an idea. And quite frankly I think it's a radical idea. And the proof of how radical the idea is we're still struggling with it in the 21st century. I mean each day we can pick up a newspaper or go to our blog of choice and see where liberty and equality at some point are in tension. And That is the genesis of the declaration.

Nick Capodice: [00:24:18] So Byron Williams calls it a radical document. Woody Holton has referenced it as an ordinance of secession. Jefferson called it an expression of the American mind. And Danielle Allen says it's a masterclass in political philosophy and a universal declaration of human rights.

Hannah McCarthy: [00:24:36] Sounds like everybody is potentially correct here. Right?

Nick Capodice: [00:24:40] Yeah I watched the six hour video of a panel talk at the National Archives and Danielle Allen was on the panel and Woody Holton was on it. And the two of them got into a disagreement about the Declaration and what he said to me was, "well you know the thing is we were both right."

Nick Capodice: [00:24:57] This, this is a document that was built on tension and compromise. And it meant something different to each man who signed it. Each person who heard it, to all who read it.

Nick Capodice: [00:25:16] So! We got ourselves a new country. Only question is, how are we gonna run it? That's Next time on Civics 101.

Nick Capodice: [00:25:30] Today's episode is produced by me Nick Capodice with Hannah McCarthy.

Hannah McCarthy: [00:25:34] Our staff includes Jacqui Helbert, Daniela Vidal-Alee and Ben Henry. Erika Janik is our executive producer.

Nick Capodice: [00:25:40] Maureen McMurray is in charge of supplying both saltpeter and pins.

Nick Capodice: [00:25:44] Special thanks to loyalist scholar Maya Jasanoff, The Declaration Resources Project at Harvard, and the American Independence museum in Exeter New Hampshire.

Hannah McCarthy: [00:25:52] Super Special Thanks to Jesse Kratz, historian at the National Archives. She offered to tour us around both the archives and the Library of Congress and show us these documents in person. We could not go because the government shut down.

Nick Capodice: [00:26:07] Music for this episode by Blue Dot sessions, Scott Gratton Kevin McCleod Kai Engel, Makiah beats and Electroswing. And from 1776 the greatest movie musical ever made.

Hannah McCarthy: [00:26:20] Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: Magna Carta

Magna Carta was sealed on a field in England in 1215. It's purpose was to appease some frustrated Barons, and it was never intended to last. Over 800 years later, this document is credited with establishing one of the most foundational principles of our democracy. So what does Magna Carta actually say? And how did it get from dubious stalling tactic in the 13th century to Supreme Court arguments in the modern era? 

In this episode, you’ll learn how Magna Carta survived and thrived its way into our democracy. Our experts this time around are Derek Taylor, William Hubbard, Joel Collins and Susan Herman.

Graphic Organizer: Have students take notes when they listen to the episode

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More Resources

Want more Magna Carta history? The British Library gives it to you straight, and in less than 4 minutes!

You can also do some deep diving of your own over at The Magna Carta Project. This site is chock full of resources, including, of course, the whole remarkable document broken down by clause, complete with audio commentary.

And here is actual footage* of that fateful day at Runnymede!

*Footage not actual.

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101:

Magna Carta

Hannah McCarthy: [00:00:00] The high Middle Ages.

[00:00:05] Europe's population is growing rapidly. The Black Death is just a glint in some rat's eye and still a century away. The economy is booming, the Catholic Church is crusading -- the feudal system is alive and well.

Peasant, Monty Python and the Holy Grail: [00:00:19] Oh, king, eh? Very nice. And how'd you get that, eh? By exploiting the workers! By hanging on to outdated imperialist dogma which perpetuates the economic and social differences in our society.

Nick Capodice: [00:00:31] When are we exactly?

Hannah McCarthy: [00:00:32] We're looking down the barrel of twelve hundred.

Nick Capodice: [00:00:35] Tremendous tremendous carry on.

Hannah McCarthy: [00:00:37] King Richard the Lionheart has just died after being shot in the shoulder possibly by a vengeful boy child. Richard's younger brother John inherits England. He is by many accounts a petty, cruel and hated ruler. In fact he attempted a rebellion back when Richard was alive and fighting in the Third Crusade. This is actually a key plot point in most Robin Hood movies by the way Prince John is the villain who exploits the poor serfs and prompts Robin to steal from the rich and give to the poor.

Nick Capodice: [00:01:08] Hannah I love this. I love a good history lesson but I just needed chicken for a second here. Huh. Don't get me wrong this is a spectacular rabbit hole that we're falling into. But we do need to get a bit of a wiggle on this founding document series that we are planning for a month or so.

Hannah McCarthy: [00:01:24] I hear ya. But what if what if. Nicholas I told you that there is a founding document all the way back here in the 13th century. A founding document for the United States the very first founding document the most foundational and not just for us not just for the United States.

[00:01:46] Some would say for the very notion of freedom under law.

Nick Capodice: [00:01:52] That's got to be one heck of a piece of paper.

Hannah McCarthy: [00:01:55] It is indeed. So shall we. Back to the Middle Ages back to one of the pillars of freedom?

Nick Capodice: [00:02:01] It seems pretty Civics 101.

Hannah McCarthy: [00:02:04] Good. Because This actually happens to be Civics 101.

Nick Capodice: [00:02:07] The podcast refresher course on the basics of how our democracy works.

[00:02:10] I'm Nick Capodice.

Hannah McCarthy: [00:02:11] And I'm Hannah McCarthy, and today we are kicking off our series on the founding documents of the United States with a charter a charter written long long ago by an unpopular King and a band of fed up barons. Lords and ladies.

[00:02:26] May I present Magna Carta.

Nick Capodice: [00:02:37] The Magna Carta.

Hannah McCarthy: [00:02:38] Actually no just Magna Carta.

Nick Capodice: [00:02:40] That's what I said. The Magna Carta.

Derek Taylor: [00:02:41] You have to forgive me. People in England don't say the Magna Carta. They say Magna Carta.

Nick Capodice: [00:02:45] Who's that.

Hannah McCarthy: [00:02:46] That's Derek Taylor.

Derek Taylor: [00:02:47] I started out life as a historian. I read history and law at Oxford. I then got lured into journalism and I became an international reporter working for independent television news of London and I did quite a lot of work as well for ABC News in the States was a war reporter and reporters from all over the world especially actually in the US but now in retirement I've gone back to my first love which is history back in 2015.

Hannah McCarthy: [00:03:19] Derek did a deep dive into Magna Carta for the eight hundredth anniversary of this document he traced its influence all over the world and wrote a book called Magna Carta in 20 places.

Derek Taylor: [00:03:30] And what I did though was that I went all around not only the UK but in France in the Middle East and indeed in the USA to chart what actually happened in the extraordinary history of this amazing document.

Hannah McCarthy: [00:03:45] Before we go any further with the extraordinary history of this amazing document. Quick question, Nick, do you know what Magna Carta is.

Nick Capodice: [00:03:55] I've heard of Magna Carta before I've heard it associated with Robin Hood. I know it's from England from a long time ago. But that's kind of it. I don't know what it actually says.

Hannah McCarthy: [00:04:05] To be honest neither did I. But it turns out that it is widely celebrated in the US. I mean we've exhibited Magna Carta in Washington D.C. directly across from our own Declaration and Constitution. We currently have a version of it on display at the Library of Congress. Magna Carta, which mean 'great charter,' by the way, in Latin, has been invoked throughout American history as a symbol of a kind of universal right.

Nick Capodice: [00:04:33] I had no idea it was so important. What does it actually say? It's got to have some powerful language.

Hannah McCarthy: [00:04:40] Well here's the catch -- if you actually look at the language of the original document for example printed out and study it in school take it at face value you'll be hard pressed to find the basis for democracy in Magna Carta's original words.

Derek Taylor: [00:04:56] It's surrounded and always has been surrounded by incredible misunderstandings. It's believed for instance that it was the birth of modern democracy that it was the first constitution that gave us equality under the law. All of these I hate to break it to all of these all completely untrue.

Nick Capodice: [00:05:15] So are we wrong to care about it. Hannah, did you conceive this entire episode just so you could re-watch Robin Hood Prince of Thieves.

Hannah McCarthy: [00:05:23] That was an added perk. Also the cartoon version with the fox. Oh yeah. I won't deny it but absolutely not. That's not the reason we're doing this episode before we can understand how Magna Carta served our democracy. We have to look back at how it was supposed to serve a 13th century monarchy. So let's get back to the Middle Ages.

Derek Taylor: [00:05:46] Magna Carta actually started out life in very very simple terms as a something which was simply a peace agreement in 2015. King John of England was facing a rebellion by his barons by the chief aristocrats in the country. And they decided in fact to try and work out a peace deal between themselves to be absolutely honest neither side really believed in it. They were both playing for time while they could build up their own forces and go back to the traditional way in which in the Middle Ages people settled their differences which is that of course what they did was that they used the crossbow and the sword.

Hannah McCarthy: [00:06:28] What Derek is saying is that Magna Carta was really just a stalling tactic. Remember King John was not a popular man. Through a combination of high taxes ill will and failed military campaigns the King found himself on the bad side of some of his barons.

Nick Capodice: [00:06:45] So the barons say to him strike a deal with us and we'll lay off.

Hannah McCarthy: [00:06:48] Yeah well first they stormed London and gained a bunch of antiquing followers and really freaked John out. And then John asked them to meet him for a little chat. So they picked a neutral territory a field just outside of London on the banks of the River Thames called Runnymede and there in the soft light of summer they hammer out a peace agreement.

Derek Taylor: [00:07:11] If we look at the the wording of Magna Carta it's full of words which have no meaning to us today whatsoever. Words like amercement and trithings and halbergett. What on earth did they mean. They're all feudal terms it talks about what should happen about fish traps on the river Medway.

Nick Capodice: [00:07:30] I feel I should point out that there is nothing about halbergett or amercements or fishing in the river Medway in the Constitution or the Bill of Rights as far as I know.

Hannah McCarthy: [00:07:38] Right.

[00:07:39] Most of Magna Carta is about obscure highly specific Berin type concerns like serfs and castles and Shiers. But there is something recognizable in this documents 60-odd clauses.

Derek Taylor: [00:07:51] We do every now and again stumble on one which we think Ah now that's interesting and for one moment all freedom loving hearts leap and then historians come in and say yeah well you may think that but it's actually really not quite like that at all. Can I just read to you what clause 39 says and you'll see you think well that's great. It says no Freeman should be seized or imprisoned or stripped of his rights or possessions or outlawed or exiled or deprived of his standing in any other way. Nor will we. That's the King speaking. Proceed with force against him or send others to do so except by the lawful judgment of his equals or by the law of the land. Wonderful stuff.

Nick Capodice: [00:08:35] Yes. OK. Now you've got me on board. This is wonderful stuff and it sounds like trial by jury.

Hannah McCarthy: [00:08:40] Clause 39 does it sound like that. But it isn't that. Not really.

Derek Taylor: [00:08:46] The first thing to say is that it begins. No free man shall be seized et cetera et cetera. OK so the first thing is that 50 percent of the population women are completely excluded. The second point is that no Freeman actually in 13th century England only one man in five was free, the rest of them were agricultural serfs there were slaves so it didn't apply to them at all. So this is a document actually doing a big favor for a very small number of privileged men.

Hannah McCarthy: [00:09:19] Derek's doing a pretty good job of turning me against Magna Carta actually.

Hannah McCarthy: [00:09:24] Yeah I can kind of get that. And you know what, Magna Carta is not the mother of modern democracy... but some people do call it the midwife.

[00:09:35] It helped things along with some sage advice.

Derek Taylor: [00:09:39] It's establishing the principle that arbitrary punishment is wrong. It's establishing the principle that this kind of thing that dictators do in other words that just simply say take that man out and chop his head off is wrong. There is a process even though we don't agree with the process so that establishes that principle. But the second thing is even more important. This is the King and this is a real shocker for the 13th century. This is the king agreeing to obey the law. Now that's a first. Until this point kings were autonomous they were not responsible to anyone except God only to God. So the idea that the king has to follow rules whatever those rules are. It's an incredible breakthrough.

Nick Capodice: [00:10:31] So up until this point kings could do whatever they wanted. They made the law and they were above the law. And then suddenly the law is above them.

Hannah McCarthy: [00:10:41] Yes just not this king.

Derek Taylor: [00:10:42] Within three months of it being signed. Both sides just forgot about it and they went back to the sword in the crossbow and King John even persuaded the pope to nail it and to condemn it as being shameful shameful. But a man who is responsible to God should be made to obey rules set out by mere human beings.

Hannah McCarthy: [00:11:06] So King John places his seal on Magna Carta when he's in this field surrounded by all of these really angry barons. But then he immediately runs to the pope and he's like I'm the kings and my power comes from God. Right. And the pope is like Yeah absolutely. These parents can tell you what to do. Magna Carta is null and void and the barons wage war.

Nick Capodice: [00:11:28] That's disappointing.

Derek Taylor: [00:11:30] And it might have stayed that way it might have been a document which got banned into the vaults of some dusty old library somewhere of interest only to a few historians if it hadn't been for one thing which is that within 16 months, King John was dead.

Hannah McCarthy: [00:11:48] Dead of dysentery at age 49 now John's son Henry is in charge. He's nine years old.

Derek Taylor: [00:11:56] He was actually described as being a pretty little knight which is not the kind of words that you want to hear used about the person who's leading you know your side.

Hannah McCarthy: [00:12:04] Luckily the young king was appointed a grownup person a counsel a knight named William Marshall who wanted to smooth things over with the barons.

Derek Taylor: [00:12:13] He reissued Magna Carta. He negotiated a peace deal with the barons and said look the way it's going to be from now on under this this young man Henry the third John's son aged only nine is that we're going to follow the rules laid down in Magna Carta.

Hannah McCarthy: [00:12:36] As it turned out Magna Carta was a super useful negotiating tactic.

[00:12:41] King John wasn't so into it because it was about putting some checks on the king at least for the barons benefit but for two centuries after King John's death, Magna Carta was trotted out and revised every time a king needed to suppress or rebellion or raise money for a war. It was a king showing good faith and protecting the interest of his barons. In turn the barons would help out the king.

Nick Capodice: [00:13:04] You said the revised Magna Carta -- so that 1215 version wasn't the be all end all version.

Hannah McCarthy: [00:13:10] Right. There were actually many many versions of Magna Carta. The most significant one happened under Edward the Third in 1354. Remember how clause 39 sounded pretty good but wasn't quite there?

[00:13:24] Edward rewrote it to sound like this.

Derek Taylor: [00:13:27] No man of whatever estate or condition may be -- what a step forward that is -- no man of whatever state or condition he may be -- and if we accept for one moment in the fourteenth century it was impossible for these people to imagine that women should be included -- this is an incredible move towards equality but something even more important. Whatever condition he may be shall not be punished except by -- wait for it -- due process of law.

Nick Capodice: [00:13:57] Due process. So this is 1354. Our Bill of Rights is written in 1791... Four hundred years. How did due process get from King Edward to James Madison?

Wiliam Hubbard: [00:14:09] It basically laid kind of dormant for many centuries.

Hannah McCarthy: [00:14:15] This is William Hubbard. He's a former president of the American Bar Association and a lawyer in Columbia, South Carolina.

Wiliam Hubbard: [00:14:21] And then again in sort of a period of enlightenment English jurists by name of -- spelled Coke, pronounced Cook, and Blackstone sort of dusted off Magna Carta at a time when there was a belief that the king had become too powerful and too insensitive to the people.

Hannah McCarthy: [00:14:43] So Cook is this super important judge in the fifteen hundreds and sixteen hundreds in England. And there comes this point where the king is imprisoning people willy nilly, kind of acting like the kings of old and Coke and a handful of others say hang on we have come up against this before we know how to stop the king from this tyrannical behaviour.

Wiliam Hubbard: [00:15:03] They wrote about Magna Carta. They base their writings and their philosophies and their belief in human rights and freedom of of individuals use those words that you know though they were ancient words they they were still in existence and part of the the law of England.

[00:15:20] And so they they dusted off those words and used them in the context of the time to again try to restrict the power of the king and soon thereafter the British colonies were being established in the United States.

Nick Capodice: [00:15:39] I'm beginning to see a bit of a right place at the right time thing with Magna Carta.

Hannah McCarthy: [00:15:43] And wouldn't you know it. Sir Edward Coke was attorney general of England when the Virginia charter was drawn up in 16 0 6.

[00:15:50] Now this is one of many Virginia charters but this particular one gave colonists land rights in Virginia and it gave people born in the colonies the same rights as people born in England.

Nick Capodice: [00:16:05] And if Magna Carta applies in England...

Hannah McCarthy: [00:16:07] Exactly. Then it applies in America, too.

Wiliam Hubbard: [00:16:11] It's where so much of what we believe is essential started.

[00:16:14] If you just want to go back and look at what is the foundation the foundation for these principles are not something that just came out of the air in the late 1700s in the United States they had been percolating and expanded and they had been explications of what those words meant and then you're simply applying those magic words those critical words to changes in circumstances and there are times when circumstances demand that we go back to basics.

Hannah McCarthy: [00:16:48] If you look back at the dawn of Magna Carta back to Runnymede in the twelve hundreds the Barons were ticked off because King John was among other things levying taxes that they considered to be unfair. He was doing what he darn well pleased and they decided that enough was enough.

Nick Capodice: [00:17:06] OK this little history lesson is beginning to make a lot more sense. Let's keep it in the episode.

Hannah McCarthy: [00:17:12] Thank you.

Nick Capodice: [00:17:13] Because now we're here right at the dawn of the United States and a bunch of people who are supposedly British citizens are not being granted the same rights as British citizens.

Wiliam Hubbard: [00:17:23] The colonists were asserting that they had the same rights as an Englishman as American colonists they still had the same rights as Englishmen. And how did they prove that they proved that by citing provisions of Magna Carta.

Hannah McCarthy: [00:17:36] Now at this point in England parliament is really more important than Magna Carta Magna Carta is respected and it's lodged in English common law. But you're not necessarily going to hear British born citizens make constant reference to it in their laws.

[00:17:53] But for Americans this old unshakeable document is essential to their case.

Wiliam Hubbard: [00:18:01] You know that phrase taxation without representation became a rallying cry of the colonists who because of the rights conveyed in Magna Carta believed that the British government had broken its contract in Magna Carta gave them a basis for rebellion and gave intellectual underpinning to the revolution.

Hannah McCarthy: [00:18:18] Magna Carta was actually at hand when colonists organized their first act of political rebellion.

Joel Collins: [00:18:24] That was the stamp act Congress of 1765.

[00:18:27] That's Joel Collins, lawyer and law professor at South Carolina Honors College.

Joel Collins: [00:18:32] Here again citing Magna Carta.

[00:18:34] They say this violates Clause 12 which guarantees the king will not enact taxes except with the common consent of the realm. So the idea of taxes without representation they said violates Magna Carta.

Hannah McCarthy: [00:18:52] When the first Continental Congress met in fall of 1774 and drafted a declaration of rights and grievances to be issued to Britain. Guess what was on the seal of their journal?

Nick Capodice: [00:19:03] I'm going to guess it has some of the do with Magna Carta, Hannah.

Hannah McCarthy: [00:19:05] It does indeed. The words Magna Carta at the base of a column grasped by twelve hands representing unity.

Nick Capodice: [00:19:14] If it's the colonies why is it 12 and not 13 hands?

Hannah McCarthy: [00:19:16] That's a good question. In 1774 there were only twelve colonies. Delaware was still a part of Pennsylvania until 1776.

Nick Capodice: [00:19:24] Delaware!

Hannah McCarthy: [00:19:25] Delaware man. And speaking of those original twelve colonies concepts that originated in Magna Carta were in nine of those twelve original state constitutions.

Joel Collins: [00:19:36] You know that men have the right of self-determination unalienable rights they are rights that -- that you don't fight for and earn, they are yours upon your birth.

Nick Capodice: [00:19:54] But by the time we get to the Declaration of Independence.

[00:19:57] You're not seeing Magna Carta explicitly referenced, right?

Hannah McCarthy: [00:20:00] Yeah, true but as Joel points out our Framers were reading a lot of philosophy and social theory and they built that into the declaration and eventually into the Constitution and the Bill of Rights they interpreted the principles of documents like Magna Carta for the purposes of American democracy.

Joel Collins: [00:20:19] I think they were very mindful of Magna Carta. I think they were extremely well read. Read the golden passages of Magna Carta, Clause 38 -- henceforth no bailiff shall upon his own support accusation put any man to trial without producing credible witnesses to the truth of the accusation -- there's your every man. He's being given rights. Clause 39 -- no free man shall be taken, imprisoned, disseised, outlawed, banished in any way and we will proceed against or prosecute him only upon the lawful judgment of his peers.

[00:20:53] There's your jury trial. And The law of the land, there's your due process of law, applicable to everybody.

Hannah McCarthy: [00:21:00] It kind of doesn't matter that Magna Carta was first written for a select group of people with totally different life experience and morals and prejudice than us.

[00:21:09] What matters is this fluke of a 1215 stalling tactic somehow stayed alive long enough to inspire an almost divine Principle.

[00:21:20] And that's why it's important that we learn about it.

Susan Herman: [00:21:24] You know, Magna Carta has just had a tremendous explosive impact over time to get it.

[00:21:29] It was kind of a seed and that seed is really I think developed some offshoots that really might have been very surprising to the barons.

[00:21:37] This is Susan Herman, President of the American Civil Liberties Union.

Susan Herman: [00:21:41] Magna Carta idea of law the land was not something that went through our society it only went to 15 percent of the people. Now when the United States Constitution was written. I think you know we don't like to think about it this way but are the framers of our Constitution our founding fathers were not that dissimilar from the barons who went to King John and 1215. They were all white men. Who was left out of the people who were writing the constitution and who was left out of the basic idea of knew who could vote and who was a member of the society were women, people of color, Native Americans, men without property.

Hannah McCarthy: [00:22:19] In Magna Carta Susan says you see the seeds of freedom. It is by no means a freedom that applies to all but the idea itself is so good and feels so right to all humans that it sticks and it evolves and it spreads.

Susan Herman: [00:22:40] So I went this morning because I knew we were going to be talking I went to the ACLU website and just search the term Magna Carta. And there were 77 results when ACLU lawyers write briefs. There are many kinds of briefs in which they reference Magna Carta and those essential principles of no one being above the law.

Nick Capodice: [00:22:58] Modern day lawyers are citing a document from 800 years ago?

Hannah McCarthy: [00:23:02] Magna Carta has been referenced dozens of times and supreme court cases over the years.

Theodore B. Olson, on behalf of Bankers Life and Casualty Company: [00:23:08] The more one examines the history of the excessive fines flaws and its antecedent, the amercement - excessive aercements clause of Magna Carta...

Chambers v. Florida: [00:23:17] My concept of due process, Mr. Justice Black, which I think goes back to the law of the land of Magna Carta...

SCOTUS: [00:23:28] There were no courts to which people could seek redress against the crown at the time of Magna Carta.

SCOTUS: [00:23:29] In fact the issue was addressed in the very first clause of Magna Carta. There King John agreed, and this is quote, "the English church shall be free." End quote. And he accepted the church's quote "freedom of elections."

Nick Capodice: [00:23:52] So when we think of magna carta as the midwife of democracy it's kind of like thinking of the original Constitution and the Bill of Rights as the things that guarantee our equality because when they were written they didn't actually guarantee equality and liberty for everybody.

[00:24:08] They became that the more that we used them because the basic principles of freedom are in there.

Hannah McCarthy: [00:24:14] Exactly. Susan says it boils down to fairness.

Susan Herman: [00:24:18] I think what due process means is it really means being fair laws the land due process it means that --

[00:24:25] Well it's another way that I would describe it as to meet a lot of the idea of rights and civil liberties is really about the golden rule. That --

[00:24:34] Imagine that you're being charged with something somebody says that you've done something that the crime that's wrong and then they just want to lock you up and or punish you somehow and you would feel that that was very unfair because you might have a defense you might have something to say about how you don't think you really were wrong in what you were doing and if you didn't get a chance to defend yourself you would really feel that that was unfair.

Hannah McCarthy: [00:24:54] Fairness is this thing that were naturally drawn to. Remember how Derek Taylor talked about our freedom loving hearts at the beginning of the episode? How we read things into Magna Carta that aren't literally there?

[00:25:07] That's because we sense this magic bean at the core of Magna Carta and accidentally possibly made up magic bean that ended up being strong enough to inspire a great democratic experiment.

Nick Capodice: [00:25:21] That nobody is above the law.

Hannah McCarthy: [00:25:24] Not even Mother England.

Susan Herman: [00:25:26] It sounds like we might be ready for a declaration and maybe even the declaration.

Hannah McCarthy: [00:25:31] That's next time on Civics 101.

Hannah McCarthy: [00:25:42] One last word here on this remarkable document. If you're planning to read it I say go for the 13 54 version. It is pretty exciting to look at those words are those words in translation and see the first instance of the term due process in clause 39.

Nick Capodice: [00:25:59] Hannah, this may be a dumb thing to ask but do you really need to read Magna Carta?

Hannah McCarthy: [00:26:06] Well there really is a lot of stuff in there about knights and the price of corn and living in a forest and fishing on the river Medway. It's very much a document for Barens. The idea and the spirit are what matter most about Magna Carta. Right. So do you have to read it to understand the point of it. I say not necessarily. That said, Nick, the rest of the documents in this series the ones that are written on U.S. soil, you gotta read those. Do you agree?

Nick Capodice: [00:26:42] I agree.

Hannah McCarthy: [00:26:43] We are endeavoring to make them easier to understand and appreciate. But you still have to read them. You have to read them before you listen.

[00:26:50] After you listen read them read them read them. You think I made my point?

Nick Capodice: [00:26:54] I think you got your point -- point well taken.

Hannah McCarthy: [00:27:05] Civics 101 was produced today by me, McCarthy with Nick Capodice.

Nick Capodice: [00:27:08] Our staff includes Jackie Helbert, Ben Henry, Daniela Allee and Jack Rodolico.

[00:27:13] Erica Janik is our executive producer.

Hannah McCarthy: [00:27:15] Maureen McMurry is Extra Knight of the Most Ancient and Most Noble Order of Divine Halberget.

Nick Capodice: [00:27:21] Music in this episode is by Bad Snacks -- what a name -- Wayne Jones, Jahzzar and Blue Dot essions.

[00:27:27] There is a transcript of this episode as well as a bunch of other resources at Civics 101 podcast.

[00:27:33] Dot org. And while you're there check out extra credit on our Web site.

[00:27:37] It's our biweekly newsletter that Hanna and I cobbled together on a host of fun topics related to our episodes Civics 101 is a production of an each new Hampshire Public Radio.

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