A Civics Trivia Special! - Holidays at the White House

Holidays are a big deal at the White House, and they’re full of all the regular trappings of a family celebration. There are traditions, festivities, complicated social dynamics, and then a healthy helping of global politics. 

On this edition Civics 101, we put our hosts’ White House holiday knowledge to the test. Who will be the victor of the first ever Holiday Civics Trivia Challenge? Plus...we find out, what are the the worse holiday songs ever?

Holiday Trivia Final: Audio automatically transcribed by Sonix

Holiday Trivia Final: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Rebecca Lavoie:
Hey, guys. I'm Rebecca Lavoie. I'm executive producer of Civics 101. This week we've got a special edition of the show for you. We decided to put hosts Nick and Hannah to the test with a holiday edition of civics trivia, in part to give them a break from hosting the show for a week. And also because we thought it would be fun to see what they know because they're always teaching us stuff. But before we get to the show, just a quick pitch, this team Hannah NicK, producers Christina Phillips and Jacqui Fulton. They put their all into making the show for you each and every week, and they couldn't do it without listener support. So if you make a donation to Civics 101 right now in any amount, we'll send you a really cool sticker that says the constitution is my copilot, so you can show off your love for civics and your support for the podcast. You can put the sticker on your coffee mug, on your car, on your notebook, anywhere you like, just head over to Civics101podcast.org or you can make that donation and get that sticker by clicking the link I'm putting right there in the show notes. Thanks so much for your support and for listening all year long. I hope you enjoy this special show that we've put together for you. It's a little bit format breaking, but it's really fun. So let's get to it.

Christina Phillips:
Holidays are a big deal at the White House, and they're full of all the regular trappings of a family celebration. You've got the tradition, the festivities, the complicated social dynamics and then a healthy helping of global politics. Today on Civics 101, we're going to put our hosts White House holiday knowledge to the test. Welcome to Civics Trivia Holiday Edition. I've got the whole team here and we decided it would be fun if we got to put Nick and Hanna head to head Hanna and Nick. We're going to test out, well, you know, holidays at the White House. Oh God, it's going to be me great.

Rebecca Lavoie:
It's going to be amazing.

Nick Capodice:
And you know, we did an episode on the holidays the way you did.

Rebecca Lavoie:
Well, you should be prepared.

Christina Phillips:
Then I am Christina Phillips. I am the senior producer of Civics 101 and.

Rebecca Lavoie:
I'm Rebecca Lavoie.

Rebecca Lavoie:
I run the podcast unit at Nhpr.org and I am the executive producer of 101. And we also have with us, Jacqui Fulton. Jacqui, please introduce yourself. Who are you?

Jacqui Fulton:
Yeah, as stated, I'm Jacqui Fulton and I'm a producer with Civics 101.

Rebecca Lavoie:
And of course, the main event our contestants Nick Capodice and Hannah McCarthy. Hello, Nick and Hannah. Thank you for joining the program.

Hannah McCarthy:
Hello. Thank you for having us, Rebecca.

Nick Capodice:
It's a pleasure to be here. My pleasure. Thanks for having us on Civics 101.

Christina Phillips:
Ok, OK, OK. So also, I would like to know everybody. What is your least favorite holiday song? I want to know because I feel like there are so many bad holiday songs. There's so many good holiday songs, so I will go first. My least favorite holiday song is Christmas shoes. Are you guys familiar?

Nick Capodice:
It's the one about one about a kid who needs some Christian, some shoes for Christmas.

Christina Phillips:
It's yes, but even more. So, It's a kid whose mother is dying, who needs shoes for her because she's dying.

Music:
Daddy says there's no time. You see, She's been sad for quite, and he wants.

Christina Phillips:
I believe the line is my mother will look beautiful if she meets Jesus tonight,

Music:
I want her to look beautiful if Momma meets Jesus tonight.

Christina Phillips:
That is that is the whole point, and apparently I've been told by Rebecca that SNL spoofed it this week, so I need to go watch that, but it is so stupid, it is obnoxious. Oh, I hate it so much

Hannah McCarthy:
Christina, that reminds me my mother had a collection of Christmas books, one of which was the Little Match Girl, which is a charming Christmas story about a little girl who freezes to death.

Christina Phillips:
I loved that book because I was the kind of child who liked to pretend that I was always in danger of dying. I loved that.

Rebecca Lavoie:
Grim, grim.

Christina Phillips:
Ok, OK, so Hannah, do you have a least favorite holiday song?

Hannah McCarthy:
I'm going to preface this by saying I bowed down at the feet of this individual. They have one of the greatest vocal ranges in human history. You'll always be. My baby is one of my karaoke songs. I cannot stand. All I want for Christmas is you.

Rebecca Lavoie:
Oh my god.

Hannah McCarthy:
I can't stand it.

Rebecca Lavoie:
We're done. You and me.

Nick Capodice:
There is a lot going on in that song in that song.

Hannah McCarthy:
Mariah Carey I love. I, you know, I'm saying this as though she's going to listen to it.

Rebecca Lavoie:
It is an American standard. How dare you?

Christina Phillips:
Why do you not like it? I need to know why.

Hannah McCarthy:
All I can tell you is that when that song comes on, I have this like. Dread dry feeling in my stomach like this, like horrible, just sick, I'm suppose, is so horrible. Mariah Carey, I'm sorry, you're an American treasure,

Nick Capodice:
But I respect your opinion. But I mean, I have to just disagree and say, that's one of the greatest songs ever. It's like wall of sound great. Like you're like, Whoa, what is going on here? Christmas song.

Hannah McCarthy:
We're going to lose half our listeners because I'm the the demon.

Christina Phillips:
OK, Nick? What is your least favorite holiday song?

Nick Capodice:
It's a song that I have to leave stores when it comes on, and it's performed by Andy Williams, and it starts off with like, Happy holidays, a hickory do, a hickory dock. Don't forget to hang up your sock and then he's got he'll be coming down the chimney down. Yeah. What the heck is coming down the chimney? Down down.

Music:
He'll be coming down the chimney, down down the chimney.

Nick Capodice:
The reason I hate this song, Rebecca, is that it rhymes toys with girls and boys.

Music:
It's got a toy for every good girl and good little boy.

Nick Capodice:
How much time did you have to come up with that one?

Rebecca Lavoie:
It has a rousing call and response section that I enjoy.

Christina Phillips:
Jacqui, what is your least favorite holiday song?

Jacqui Fulton:
So I used to work at a restaurant and they would they had like holiday playlist that they would do all the time and this one they played, it felt like every 30 minutes and it was Santa baby. It's so weird!

Jacqui Fulton:
It's like this person obviously has a big thing for saying which, you know, no shaming people for what they like.

Jacqui Fulton:
And like little kids sing this song!

Rebecca Lavoie:
And on that note, and I have a feeling that only one other person on this call may be familiar with this because they mentioned retail is Dominic the Donkey?

Hannah McCarthy:
The Italian Christmas Donkey?

Rebecca Lavoie:
The weirdest song that's strangely pandering to Italian-Americans in a way that is completely unnecessary. We didn't ask for it. We don't need it. And it's weird.

Nick Capodice:
My favorite Christmas story is about this song. I make it really fast. Ok? In Little Italy, in Manhattan, there's these storefronts that are clearly owned by organizations that don't actually sell anything. And one store was just, I don't know. I just don't want to get in trouble on our podcast. And one storefront window was completely dark and it just had one thing in it and it was a T-shirt and it said, Dominick, the Christmas donkey. And then in the bottom, it said, as featured in the movie Riding in Cars with Boys, starring Drew Barrymore.

Hannah McCarthy:
Ever since you told me that story, I'm just going to I'll give this away to you. Like, I have been searching for that T-shirt. So they want to gift it to you. I thought that was the greatest thing I'd ever heard.

Christina Phillips:
So here's how the trivia will work, we'll have three rounds of questions about different aspects of the holiday season at the White House. There will be bonus points in each round. The winner gets nothing but glory. That's right.

Rebecca Lavoie:
Nothing but glory, nothing, but glory is not going to be anything but glory,

Christina Phillips:
No, nothing.

Rebecca Lavoie:
But glory is this because our budget is so small because this is public radio. It's like nothing but glory.

Christina Phillips:
Also, I don't want to shop for Christmas anyway. I didn't want to get anyone anything. Sorry guys.

Rebecca Lavoie:
And this is a great time to remind listeners, by the way, they can donate to the show because we can't afford to give anything but glory. You get a sticker if you do go to Civics101podcast.org, make a donation. Maybe next year we'll have more than glory to give away. Yes. Yes. All right. Continue. Continue.

Christina Phillips:
All right. It's a great stocking stuffer. Probably. I don't know. Do people on stickers anyway?

Christina Phillips:
Rebecca, I'm going to hand this round off to you.

Rebecca Lavoie:
Ok, so in this round, Nick and Hannah questions are worth one point. I believe they're worth one point in every room. And of course, these points are extremely important because glory, yes, nothing but glory is at stake. The stakes are zero, except if you care about glory, which I believe you to do. So almost nothing else matters. Christmas toasts is the category the holiday season has served as a symbol of unity and peace throughout American history. I'm going to read you quotes of holiday messages delivered at the White House and a couple of questions related to each quote. Our first question is for Hannah McCarthy. This quote is from a world leader who ditched his own country's holiday celebration to meet with a U.S. president won't let the children have their night of fun and laughter. Let the gifts of Father Christmas delight their play. Let us ups share to the full in their unstinted pleasures before we turn again to the stern tasks and formidable year that lies before us.

Hannah McCarthy:
I'm supposed to guess the person.

Rebecca Lavoie:
Yes, which world leader ditched his own country's celebrations and delivered that speech

Hannah McCarthy:
At the White House? Churchill?

Rebecca Lavoie:
Yes. Very good.

Hannah McCarthy:
Because of the writing!

Nick Capodice:
Oh, I'm done for.

Rebecca Lavoie:
Winston Churchill spoke on Christmas Eve, 1941 in a shared Christmas address with President Franklin Roosevelt during World War Two. Nick, follow up question for you What event took place on American soil earlier that same December?

Nick Capodice:
Oh, can you say the date one more time?

Rebecca Lavoie:
Sigh.

Nick Capodice:
I wasn't listening, can I say the can I say the bombing of Pearl Harbor?

Rebecca Lavoie:
You can.

Nick Capodice:
I wanted to just double check the date.

Rebecca Lavoie:
Of course, the bombing of Pearl Harbor in 1941 in December marked the United States official declaration of war in Japan and full entry into World War Two. Shortly thereafter, Germany and Italy declared war on the United States and the U.S. reciprocated. Churchill was in Washington, D.C., around Christmas to strategize with Roosevelt. Ok, quick tally. Where are we right now?

Christina Phillips:
Hannah has one, Nick has one. I feel like Hannah had the harder question.

Rebecca Lavoie:
All right. Hannah McCarthy Yes. Roosevelt was known for holiday related executive orders during his presidency, including declaring an emergency federal bank holiday during the Great Depression. In a similar vein in 1939, Roosevelt moved which holiday a week earlier in an effort to stimulate the economy.

Rebecca Lavoie:
Oh, I read About this when I was making the Federal Holidays Episode,

Rebecca Lavoie:
I Would think you'd be prepared then For this question.

Hannah McCarthy:
You'd think I would be prepared, Rebecca, You'd think.

Hannah McCarthy:
I mean, I would say Thanksgiving.

Rebecca Lavoie:
Really? You would, that is the correct answer.

Nick Capodice:
And it was just that one time, right?

Rebecca Lavoie:
Was it just that one time?

Christina Phillips:
Yes, it was. He actually became known for moving holidays around, and people would call this Franksgiving.

Nick Capodice:
Yeah, that's right.

Rebecca Lavoie:
Ok, now we are on to our second Christmas toast. Nick, you are getting the starting question for this one. Ok. The holiday season is a good time for people to flex their muscles, to brag a bit. In 1958, President Eisenhower stuck it to the Russians by broadcasting his holiday message to the American public from where?

Nick Capodice:
Wow, so Eisenhower stuck it to the Russians. Yes, by broadcasting.

Nick Capodice:
Oh oh, but no, it can't be.

Hannah McCarthy:
My guess is ridiculous.

Nick Capodice:
I was going to guess from space.

Rebecca Lavoie:
Wow, what a guess that is correct, Nick.

Rebecca Lavoie:
Shortly after the successful launch of Sputnik Russia's satellite into orbit, the Eisenhower administration faced pressure to keep up in the space race. So when a secret mission, the U.S. launched its first communications satellite into orbit in December with a recorded message from Eisenhower to broadcast on the radio. The audio quality is about what you'd expect from a satellite in space made in the 1950s.

Eisenhower from space:
The United States. All of the scientific advance, my voice is coming my satellite.

Rebecca Lavoie:
Unsurprisingly, the weak signal meant that only the biggest radio hobbyists nerds actually heard that first transmission, but most of the American public heard it rebroadcast on the news. Hannah. Follow up for you for a point to government agencies were created because of pressure from the public and Congress after the launch of Sputnik one was NASA. Can you name the other one? I will give you a hint if you need it.

Hannah McCarthy:
Oh, I'll take the hint, but I'm afraid it's going to make it worse. Give me the hint.

Rebecca Lavoie:
The hint is this agency is known for its creepy, creepy robots.

Christina Phillips:
Well, this is a hard one,

Rebecca Lavoie:
Is it? I thought my hint is pretty telling.

Hannah McCarthy:
Is there like a national science administration?

Rebecca Lavoie:
No. But there is a little organization called DARPA, which is pretty well known for its creepy, creepy robots. Sorry. The Defense Advanced Research Projects Agency was also created at the same time as NASA. Sorry, didn't get that one. Hannah, so we are now on our third toast question to this. This anchor question goes to you. Presidents have used their holiday addresses as a way to endear themselves to the people, instilling patriotism and put aside political division, sometimes with mixed success. In 1954, following the end of the Korean War, President Eisenhower's administration rebranded the lighting of the National Christmas tree as quote The Christmas pageant of Peace. This made it a little awkward for presidents in wartime, which Presidents Christmas pageant of peace was interrupted by protesters.

Hannah McCarthy:
Ooooh was it Kennedy?

Christina Phillips:
Think about presidents who a lot of people were really mad at them.

Rebecca Lavoie:
Imagine a president that might have gotten protesters at other events besides just the lighting of the Christmas tree. I mean, you want to take a second guess?

Hannah McCarthy:
Nixon?

Rebecca Lavoie:
Yeah, I think she made a half a point.

Rebecca Lavoie:
Give her half.

Christina Phillips:
Ok, half a point.

Rebecca Lavoie:
Maybe you'll have an opportunity for half a point later. So, Nick, a follow up question for you. Nixon did not attend his pageant of peace in 71 and 72. I wonder why? Who gave speeches on his behalf instead?

Nick Capodice:
Oh wow.

Nick Capodice:
On speeches, on Nixon's behalf.

Nick Capodice:
So, uh, was it Ford?

Rebecca Lavoie:
No, no. Take a second guess for half a point.

Nick Capodice:
Yeah, yeah. Give me a second. Let's see. It Wasn't Spiro Agnew.

Rebecca Lavoie:
It wasn't?

Nick Capodice:
OK, Spiro Agnew.

Rebecca Lavoie:
Yay!

Rebecca Lavoie:
It was Vice President Spiro Agnew at the 1970 Pageant of Peace. By the way, Nixon did say we can look forward with assurance to the end of that war. The U.S., of course, would not leave Vietnam until 1975, so there was the storied history of the quote pageant of peace during the Nixon administration.

Christina Phillips:
I believe Nixon also one time I I try to find pictures of this, but I couldn't. He put a peace sign on top of the tree instead of a star, and a lot of people got really mad about that. But also, I like to imagine that if Ford had lit the Christmas tree, he would start it with. Our national nightmare has ended. Christmas has arrived.

Rebecca Lavoie:
So, Nick, this one is for you. Yeah. In nineteen seventy nine, during the quote pageant of peace, President Jimmy Carter made a symbolic statement when he chose to only light the star at the top of the national Christmas tree. Carter said the tree would remain dark until what happened. Oh oh my goodness, this was 1979 near the end of his administration, right?

Nick Capodice:
Ok, so let me just just talk out loud for a second, right?

Rebecca Lavoie:
Yes, you can talk.

Nick Capodice:
Carter cares about, you know, he cares deeply about world hunger. You near

Rebecca Lavoie:
The end of his administration.

Rebecca Lavoie:
Yeah. And he and there was. What is he waiting to have happen near the end of his administration, like the trees remaining dark until this Whole this thing happens?

Nick Capodice:
Yes. Hold on, I've almost got I've almost got it.

Rebecca Lavoie:
If you need a hint, I'm happy to give you one.

Nick Capodice:
Give me just 30 more seven more seconds. Sure. Think about what the thing is that he wants to have happen.

Rebecca Lavoie:
I know you can get this one.

Nick Capodice:
Is it the freeing of hostages from Iran?

Rebecca Lavoie:
It is the freeing of U.S. hostages at the embassy in Tehran, Iran. He was waiting for them to be released. The hostages were captured on November 4th, 1979, during a period of intense conflict between the U.S. and Iran. So Hannah McCarthy bonus question for you Approximately how long were the hostages held at the embassy?

Hannah McCarthy:
I will just I'm going to be completely honest, I have absolutely no idea zero inkling,

Rebecca Lavoie:
One of the easiest numbers to remember in political history. I believe, Nick, do you know the answer to this question?

Nick Capodice:
I don't know the number.

Christina Phillips:
Can we get a guess, I just I'm curious how long you think that they were held because I was surprised. I did not know that. I did not know I was.

Nick Capodice:
It was the year I was born.

Rebecca Lavoie:
Hmm. I guess I am really old. 80 days.

Hannah McCarthy:
Or seventy nine days?

Rebecca Lavoie:
Four hundred and forty four days.

Nick Capodice:
Yes, it's way longer than I thought.

Rebecca Lavoie:
Yes, yes. And of course, if you want a telling of the story or a part of the story, I would highly recommend the Oscar winning movie Argo, directed by my favorite boyfriend of Jennifer Lopez, Ben Affleck. Ok, where are we score wise host Christina Phillips?

Christina Phillips:
Nick, you have three and a half, Hannah. You have two and a half.

Rebecca Lavoie:
When we get back from the break, we'll find out if Hannah can redeem herself as we turn to the next round of civics trivia revolving around holiday time. But one quick note you can get all kinds of trivia and ephemera and civics facts in our Civics 101 newsletter called Extra Credit. It's free, it's fun, it's biweekly, and everyone loves it. Sign up for it at civics101podcast.org or just click the link in our show notes to get on the list. Welcome back to our special holiday break edition of Civics 101, where we're putting hosts Hannah McCarthy and Nick Capodice to the test, pitting them against each other with a series of trivia questions about civics and the holidays before we return to the show. Might I remind you if you love the podcast, support it, make a donation in any amount and we'll send you a snazzy sticker that says the constitution is my copilot. You can make that gift at civics101podcast.org or just click the link in the show notes. All right, let's get back to the trivia.

Christina Phillips:
Our next round will be about the celebration of Hanukkah at the White House. This is a multiple choice round, so buzz in after we've read all the options and so I've asked you to select a buzzer noise. Nick, what is your buzzer noise?

Nick Capodice:
My buzzer noise is this.

Rebecca Lavoie:
Very good. I hate you know what that is. So I do, you know, Rebecca?

Hannah McCarthy:
Yeah, it's the horse sound at the end of what the Christmas song that I don't.

Rebecca Lavoie:
Yeah, yeah, yeah, yeah, yeah. It's sleigh ride.

Nick Capodice:
I want to tell you it's sleigh ride, sleigh ride, sleigh ride.

Nick Capodice:
Oh, it's the horse whinny. And I got to be the horse whinny when we played it in high school.

Rebecca Lavoie:
Yeah, the greatest high school concert band number ever. Because some percussionist gets to play the whip, which is, yeah, two blocks on a stick that go, which I got to do it four times a night, but

Rebecca Lavoie:
All right, go ahead. What is your buzzer, Hannah?

Hannah McCarthy:
I don't know. Nick selected it for me. Why are you?

Rebecca Lavoie:
Oh, really?

Nick Capodice:
Well, you could try this one instead. You got this one.

Hannah McCarthy:
I want that one. Yeah.

Nick Capodice:
Ok, so this is You Mario going down the pipe? Press it one more time to make sure

Hannah McCarthy:
It gives me childhood anxiety. Yeah, because I tried really hard at that game and I never did well.

Christina Phillips:
All right. We are headed into our next round. It is all about the celebration of Hanukkah at the White House. This is multiple choice buzz in after we've read all the options, Jacqui. You are going to be leading us through this round. Take it away.

Jacqui Fulton:
Ok, question one. Presidents only began honoring Hanukkah in the 20th century, when this president was the first to light a menorah during the holiday season alongside the lighting of the national Christmas tree. Was it a Franklin Roosevelt? B John F Kennedy, C Jimmy Carter or D George H.W. Bush?

Rebecca Lavoie:
We get the same exact time,

Hannah McCarthy:
Same time, except yours is

Rebecca Lavoie:
Louder.

Nick Capodice:
No, you hit it twice, so it turned off, you did that.

Rebecca Lavoie:
Oh, we have a dispute, we have a dispute. I don't know what..

Nick Capodice:
We could both say it at the same time. Yep.

Nick Capodice:
Ok. All right. Three. Jimmy Carter,

Rebecca Lavoie:
Do you think happens? They both get the point.

Christina Phillips:
I'm going to give them both the point. All right.

Jacqui Fulton:
So initially, Carter Secretary of the Interior Cecil Andrus, denied the permit for a menorah on government property, saying it violated the First Amendment. Carter's adviser, Stu Eizenstat, told Andrus that if he denied the permit for the menorah, he would also have to deny the permit for the Christmas tree, and he backed down.

Nick Capodice:
Wow, that's a good story. You know where you can read about that, that whole crazy story, Rebecca, where an extra credit, biweekly newsletter? It was like two years ago. I don't remember who wrote it if it was an

Hannah McCarthy:
I think it was You,

Nick Capodice:
But it was all about that. That was such a good story, Jacqui, when he was like, Well, then we'll just, you know, the Christmas tree Christmas.

Christina Phillips:
I love the idea that Eisenstadt was like, Oh, do I just maybe we don't have to do any of it this year. I don't have to worry about any of it.

Jacqui Fulton:
All right. Question to you guys ready? Yeah, OK. During a menorah lighting ceremony in the Oval Office in 1993, President Clinton acted quickly when Watt accidentally caught fire a stack of papers on the Resolute Desk B a young girl's ponytail, c a Secret Service member sleeve, or D the Oval Office carpet.

Christina Phillips:
That was definitely Hannah.

Rebecca Lavoie:
That was me, a little girl's hair caught fire! A ponytail!

Jacqui Fulton:
You seem really excited about her hair catching on fire.

Hannah McCarthy:
Actually, if you watch the video, it happens in a flash.

Jacqui Fulton:
Yeah, a young girl's ponytail. The menorah was sitting on the desk behind her, and Clinton noticed the flame and put it out with his hands.

Christina Phillips:
He was very, very subtle about it, like it was just like, yeah,

Hannah McCarthy:
It was very,

Christina Phillips:
Yeah, you can't even tell what happened.

Rebecca Lavoie:
That little girl was inside of us all along.

Nick Capodice:
And that little girl grew up to be...

Rebecca Lavoie:
The little match girl.

Nick Capodice:
The little match girl.

Jacqui Fulton:
All right, question number three. In 2013, the first day of Hanukkah fell on Thanksgiving Day. President Obama presented a monarchy during an event at the end of the holiday. What is the monarchy? Was it a turkey carved in the shape of a menorah? Be a menorah carved in the shape of a turkey? See the live turkey. Obama had pardoned on Thanksgiving, wearing a sweater with menorahs on it, or d an aide wearing a turkey costume carrying a menorah.

Christina Phillips:
Hannah, what is it?

Hannah McCarthy:
Be a menorah carved to look like a turkey.

Christina Phillips:
Yes. Yes, we have the audio of that.

Barack Obama:
We've got 10 year old Asher Weintraub from New York City. Where's Ashley? Asher came up with what we believe is the world's first ever menorah shaped like a turkey. It is called the monarchy. Where is the monarchy? I had it just a second ago.

Jacqui Fulton:
Obama was also the first president to hold a ceremonial seder during Passover.

Rebecca Lavoie:
Oh, amazing. I didn't know that.

Hannah McCarthy:
Yeah. You know, I've never been to a Seder. I've always wish my friends in high school would invite me, and they never did.

Rebecca Lavoie:
So where are we score wise for this round?

Christina Phillips:
Nick, you have four and a half points and you have five and a half points.

Nick Capodice:
Wow. Ok. How quickly the wheels of time.

Rebecca Lavoie:
So we are headed into our final round, Christina and I am going to hand it off to you. I'm going to be doing the scoring and you are going to be doing the question reading because this round you came up with and you deserve to do it. So take it away.

Christina Phillips:
In 1961, Jacqueline Kennedy was the first first lady to give the White House holidays a theme which would help determine how the White House was going to be decorated that year. The theme was The Nutcracker Suite, so our next round is this or that you have to guess whether I'm naming a White House holiday theme or a scented product from Bath and Body Works.

Hannah McCarthy:
Well, I grew up in the 90s and I went to the mall a lot.

Christina Phillips:
This is going to be interesting. You'll get a bonus point if you can either name the first lady or describe the scent. If you come even a little bit close to how bath and body works, describes that scent will give you the bonus points.

Rebecca Lavoie:
Stream of consciousness. Any word, any fruit, any nut, any spice.

Christina Phillips:
Plus, there will be four first ladies that you can choose from, and we will read them out for you. After you guess, we'll remind you of who those first ladies are, but they are Laura Bush, Hillary Clinton, Michelle Obama or Pat Nixon. And there may be more than one theme from the same first lady.

Rebecca Lavoie:
Hmm. Ok, so White House themes four first ladies. One store that sells a lot of stinky stuff. Ok, take it away, Christina.

Christina Phillips:
Ok, Hannah, first question is for you. Is this a White House holiday theme or a scent from Bath and body works? Winter Wonderland?

Hannah McCarthy:
It's so broad, I'm going to say it's a theme.

Rebecca Lavoie:
You are correct.

Christina Phillips:
So here's a little more about this. The Knitting Guild of America and the Society of Decorative Painters work together with fabric artists from each state on these ornaments, so every state had different ornaments that were themed winter wonderland. Ok. All right, bonus question for you, Hannah. Yeah. Was this Laura Bush, Hillary Clinton, Michelle Obama or Pat Nixon?

Hannah McCarthy:
Just because of the how basic it is, I'm going to guess Pat Nixon.

Nick Capodice:
Sorry that she was the first first lady to get a college degree.

Rebecca Lavoie:
No, I'm just saying the era. Just the era.

Christina Phillips:
Yeah, no. It was like Clinton in 1998.

Nick Capodice:
Woa, you just called Hillary Clinton basic.

Christina Phillips:
I love it.

Nick Capodice:
Somebody is not with her. Saw her drinking a white claw the other day.

Rebecca Lavoie:
She was cutting those sugar cookies from that roll.

Nick Capodice:
Listening to All I want for Christmas is you.

Christina Phillips:
All right.

Christina Phillips:
Question number two. This is for you, Nick. Is this a White House holiday theme or is sent from Bath and body works? Fresh, sparkling snow.

Nick Capodice:
I mean, that you'd have to be a first lady going through some stuff. The theme, Oh, I'm going to go with Bed Bath and body works.

Rebecca Lavoie:
Oh, shoot.

Nick Capodice:
I always do that. I'm going to do scent. Sorry.

Christina Phillips:
Can you Imagine? Bed Bath and body works.

Hannah McCarthy:
The ultimate collab, I would go there every day.

Christina Phillips:
I cannot imagine them combined.

Rebecca Lavoie:
The towels would be scented forever.

Nick Capodice:
Forever scented. Oh God.

Christina Phillips:
Oh, you are correct, Nick. Oh, the scent from bath and body works. Ok, here's your bonus question. Yeah. Name three things.

Rebecca Lavoie:
Anything I think anything.

Christina Phillips:
You can name three things What do you think? Fresh, sparkling snow smells like

Rebecca Lavoie:
Stream of consciousness, Nick. If you name Anything.

Nick Capodice:
Well. Can you say it's fresh? What kind of snow?

Rebecca Lavoie:
Fresh, sparkling.

Nick Capodice:
Fresh, sparkling snow?

Nick Capodice:
I mean, I feel like it's going to have some sort of like wintergreen, vanilla, a pine.

Christina Phillips:
All right. Do you want to hear the description? Here we go. Here we go. Fresh, sparkling snow, cool and crisp, just like the first snowfall of the season. Icy melon. Winter pine,

Rebecca Lavoie:
Yes.

Christina Phillips:
And fresh citrus.

Rebecca Lavoie:
You got it with the pine. Yeah, yeah. With the pine melon pine.

Nick Capodice:
Nothing says Christmas. Like the scent of melon.

Christina Phillips:
I have a question. Is icy melon a melon? Or is that just melon that's frozen

Hannah McCarthy:
There's no such thing. It's not like a type of melon.

Rebecca Lavoie:
I think that's just bath and body works saying this melon is actually just chemicals.

Nick Capodice:
It's an in case of emergency melon.

Christina Phillips:
All right, Hannah. Question three Is this a White House holiday theme or are you sent from Bath and body works a thousand Christmas wishes?

Hannah McCarthy:
Um, a theme.

Christina Phillips:
No,

Hannah McCarthy:
No. How is that a scent, for the love of God?

Christina Phillips:
Ok. A thousand Christmas wishes I sent from Bath Body Works. Can you give me three tasting? Scenting notes that you think is a thousand Christmas wishes?

Rebecca Lavoie:
You had a chance to redeem yourself or just name some stuff.

Hannah McCarthy:
I do think vanilla is a good guess. Maybe peppermint

Rebecca Lavoie:
And. A thousand Christmas wishes?

Rebecca Lavoie:
I'm going to give you a hint. Obscure Christmas fruits.

Hannah McCarthy:
Obscure Christmas fruits, so not citrus, then. Uh.. Cranberry. All right.

Christina Phillips:
Ok, I'm going to read the description. But what did she say again? We got vanilla

Rebecca Lavoie:
She didn't get it.

Hannah McCarthy:
Rebecca is so disappointed.

Christina Phillips:
A celebratory blend of pomegranate prosecco, sweet elderberries star jasmine and sugared Woods.

Hannah McCarthy:
Sugared wood.

Nick Capodice:
Oh my gosh, that's where the winter melon grows.

Rebecca Lavoie:
The icy melon.

Nick Capodice:
Icy melon grows in the sugar Woods.

Christina Phillips:
I'm just picturing a piece of bark that somebody sucking.

Rebecca Lavoie:
All right, so right now, just so you know, we have a tie game, it is six and a half to six and a half. That was your chance to pull it in.

Hannah McCarthy:
I know now that you're saying that I feel like I remember reading that description in bath and body works.

Nick Capodice:
I thought it was. I thought it was. Was it too? Was it orange in color?

Christina Phillips:
Oh, I have no idea, but I could check.

Jacqui Fulton:
They just took a thousand different chemicals. Put it in there.

Hannah McCarthy:
It's like a thousand Christmas chemicals.

Christina Phillips:
All right, Nick, question for is this a White House holiday theme or a scent from bath and body works: home for the holidays? Oh no.

Nick Capodice:
This would be great as both, I'm going to say White House Christmas theme.

Christina Phillips:
You are correct, and I think by the way, I did cross reference. Yeah, I made sure that there was no overlap because it was it was a close thing.

Nick Capodice:
A I can tell you that if it was a scent, it would have gingerbread in it.

Christina Phillips:
A White House holiday theme. Here is the theme. It featured historic house ornaments designed by local architects, so local houses of each state as ornaments. Laura Bush, Hillary Clinton, Michelle Obama or Pat Nixon.

Nick Capodice:
Oh, it sounds like something a Carter would do, but let me see here.

Rebecca Lavoie:
Hold on. That wasn't one of the choices.

Nick Capodice:
Yeah. No, I was just talking out loud. I'm pretending like it's the wait. Wait, don't tell me. Except we don't have the answers given to us. Yes. They don't, do they. It just made that up. Oh, I'm going to guess Laura Bush.

Christina Phillips:
Yes.

Hannah McCarthy:
Oh, boooo.

Rebecca Lavoie:
Somebody is ahead by two points.

Christina Phillips:
Important follow up, Hannah, is that basic or not basic: Home for the holidays?

Nick Capodice:
Very, very complicated and sophisticated.

Christina Phillips:
Ok. And question number five simple gifts.

Hannah McCarthy:
If I were the designer of scents at Bath and Body Works, I would never describe my scent is simple because they're all about complexity and strangeness. I'm going to say it was a theme.

Christina Phillips:
You are correct.

Hannah McCarthy:
Oh, thank God,

Rebecca Lavoie:
I love hearing the logic.

Christina Phillips:
Yes. So simple gifts. The theme was honoring state and county fairs and featured prize ribbons from each state and territory, and it was known as the gift of the American spirit.

Hannah McCarthy:
I'm again going to say Pat Nixon.

Christina Phillips:
It was not Pat Nixon, it was Michelle Obama.

Hannah McCarthy:
I'm sweating so much.

Rebecca Lavoie:
Yes, well, Nick, you have one more chance to win it by a lot.

Hannah McCarthy:
Was that my last question?

Rebecca Lavoie:
I'm afraid to say it was so nick. This last question will determine just how much glory it is you have in this game

Rebecca Lavoie:
To go find my trumpet.

Hannah McCarthy:
Curse Pat Nixon and the space she takes up in my brain

Jacqui Fulton:
She is far more complex than you thought.

Rebecca Lavoie:
Living rent free.

Christina Phillips:
Ok, Nick. Question six Is this a White House holiday theme or a scent from Bath and Body Works. Holiday Cheers.

Nick Capodice:
Wow.

Hannah McCarthy:
Cheers, plural?

Christina Phillips:
Yeah.

Nick Capodice:
If it was a theme for the White House, they'd have to be like about cheers and drinks and toasts. And it's just

Hannah McCarthy:
Or the bar Cheers.

Nick Capodice:
Yeah, where everybody votes their party.

Hannah McCarthy:
Cheerleaders of America.

Nick Capodice:
Holiday cheers. I'm going to say I'm going to say bath and body.

Rebecca Lavoie:
Oh, you are correct.

Nick Capodice:
Sorry.

Hannah McCarthy:
Ok, I get extra points for the fun trivia I noticed off the top of my head.

Rebecca Lavoie:
You get extra points for winning the lightning round with your buzzer man. As far as yes.

Christina Phillips:
Yeah, OK, I actually think it would be fun. I want you both to guess what the scent is, so each of you is going to name one thing. We'll go back and forth three times. What do you think holiday cheers smells like, Nick? One.

Nick Capodice:
Ok. Give me a second! Holiday cheers. Cinnamon.

Christina Phillips:
Ok, Hannah.

Rebecca Lavoie:
No, by the way, no cinnamon.

Hannah McCarthy:
Given that they put prosecco in one of their beverages, beverages in one of their scents, I'm going to guess Prosecco again.

Rebecca Lavoie:
No, no

Nick Capodice:
I'm going to say cloves.

Rebecca Lavoie:
No.

Hannah McCarthy:
What was your first, cinnamon?

Nick Capodice:
Oh, I got another guess, yeah.

Hannah McCarthy:
You already said cinnamon.

Rebecca Lavoie:
I did.

Hannah McCarthy:
Mulled wine.

Nick Capodice:
Now I'm going to guess some sort... I'm going down Eggnog Road. I'm going to say nutmeg.

Christina Phillips:
Yes.

Nick Capodice:
Give me that nutmeg,

Christina Phillips:
This is the description, creamy, sweet and extra toasty, it makes the holidays that much more cozy, warm vanilla, spiced rum and a dash of nutmeg. So I know you were very close with the the alcohol guess.

Rebecca Lavoie:
So Nick, you are the winner of our first ever Civics 101 holiday trivia game. How does it feel to have all of the glory?

Nick Capodice:
You've all heard a little bit. I'm going to tell you it's not pleasant.

Christina Phillips:
I would just like to point out that Pat Nixon had none of those themes. I threw her in there as a decoy and it worked.

Rebecca Lavoie:
Yes, it sure did.

Christina Phillips:
Nick and Hannah, thank you for being such good sports and for joining us today.

Nick Capodice:
Thank you. Thank you. You'll get me now. You'll get you'll get into next year.

Hannah McCarthy:
Jackson had a snowball fight in the White House with little balls of cotton. I know that!

Christina Phillips:
She's just going to start spouting White House bags for the next year. Jacqui, thank you so much for joining us and for leading that round.

Jacqui Fulton:
Oh yeah, my pleasure.

Christina Phillips:
Executive producer Rebecca Lavoie,

Rebecca Lavoie:
Thanks for coming to my basement to record this with me.

Christina Phillips:
Thank you for allowing me to interlope in your basement.

Christina Phillips:
And for everyone at Civics 101. We hope you have a great holiday season and that you have a Happy New Year. Happy New Year!

Hannah McCarthy:
What theme would you pick?

Hannah McCarthy:
I'm sorry, I'm sorry.

Christina Phillips:
I love it, I love it. No, I want to know.

Nick Capodice:
I would pick like sort of like root vegetables and roasted root vegetables.

Hannah McCarthy:
I would pick just because I believe, you know, death is always with us.

Rebecca Lavoie:
The little match girl.

Hannah McCarthy:
I would pick. I would pick A Christmas Carol. Our tree topper is the ghost of Christmas present. Yeah. I feel like, you know, just remember, everybody, it can all go away in a second.

Christina Phillips:
So, Jacqui what would you pick? What would yours?

Jacqui Fulton:
Oh mean girls.

Christina Phillips:
I love that

Rebecca Lavoie:
This episode of Civics 101 was written by Christina Phillips and produced by me, Rebecca Lavoie, with help from Jacqui Fulton, thanks to our special guests Civics 101 host Hannah McCarthy and Nick Capodice for letting us put you through the trivia ringer and for all you do all year round to make the show a joy to work on and to listen to. This episode featured music by the Starlight Singers, Andy Williams, kids singing Lou Monte Wesleyan Studios and the Royal Philharmonic with scoring by Henry Lavoie and our special apologies to Mariah Carey. You really are awesome. Despite what Hannah says, Civics 101 is a production of New Hampshire Public Radio.

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Rebecca Lavoie: [00:00:03] Hey, guys. I'm Rebecca Lavoie. I'm executive producer of Civics 101. This week we've got a special edition of the show for you. We decided to put hosts Nick and Hannah to the test with a holiday edition of civics trivia, in part to give them a break from hosting the show for a week. And also because we thought it would be fun to see what they know because they're always teaching us stuff. But before we get to the show, just a quick pitch, this team Hannah NicK, producers Christina Phillips and Jacqui Fulton. They put their all into making the show for you each and every week, and they couldn't do it without listener support. So if you make a donation to Civics 101 right now in any amount, we'll send you a really cool sticker that says the constitution is my copilot, so you can show off your love for civics and your support for the podcast. You can put the sticker on your coffee mug, on your car, on your notebook, anywhere you like, just head over to Civics101podcast.org or you can make that donation and get that sticker by clicking the link I'm putting right there in the show notes. Thanks so much for your support and for listening all year long. I hope you enjoy this special show that we've put together for you. It's a little bit format breaking, but it's really fun. So let's get to it.

 

Christina Phillips: [00:01:39] Holidays are a big deal at the White House, and they're full of all the regular trappings of a family celebration. You've got the tradition, the festivities, the complicated social dynamics and then a healthy helping of global politics. Today on Civics 101, we're going to put our hosts White House holiday knowledge to the test. Welcome to Civics Trivia Holiday Edition. I've got the whole team here and we decided it would be fun if we got to put Nick and Hanna head to head Hanna and Nick. We're going to test out, well, you know, holidays at the White House. Oh God, it's going to be me great.

 

Rebecca Lavoie: [00:02:20] It's going to be amazing.

 

Nick Capodice: [00:02:23] And you know, we did an episode on the holidays the way you did.

 

Rebecca Lavoie: [00:02:26] Well, you should be prepared.

 

Christina Phillips: [00:02:27] Then I am Christina Phillips. I am the senior producer of Civics 101 and.

 

Rebecca Lavoie: [00:02:31] I'm Rebecca Lavoie.

 

Rebecca Lavoie: [00:02:32] I run the podcast unit at Nhpr.org and I am the executive producer of 101. And we also have with us, Jacqui Fulton. Jacqui, please introduce yourself. Who are you?

 

Jacqui Fulton: [00:02:42] Yeah, as stated, I'm Jacqui Fulton and I'm a producer with Civics 101.

 

Rebecca Lavoie: [00:02:47] And of course, the main event our contestants Nick Capodice and Hannah McCarthy. Hello, Nick and Hannah. Thank you for joining the program.

 

Hannah McCarthy: [00:02:55] Hello. Thank you for having us, Rebecca.

 

Nick Capodice: [00:02:57] It's a pleasure to be here. My pleasure. Thanks for having us on Civics 101.

 

Christina Phillips: [00:03:01] Ok, OK, OK. So also, I would like to know everybody. What is your least favorite holiday song? I want to know because I feel like there are so many bad holiday songs. There's so many good holiday songs, so I will go first. My least favorite holiday song is Christmas shoes. Are you guys familiar?

 

Nick Capodice: [00:03:21]  It's the one about one about a kid who needs some Christian, some shoes for Christmas.

 

Christina Phillips: [00:03:25] It's yes, but even more. So, It's a kid whose mother is dying, who needs shoes for her because she's dying.

 

Music: [00:03:34] Daddy says there's no time. You see, She's been sad for quite, and he wants.

 

Christina Phillips: [00:03:41] I believe the line is my mother will look beautiful if she meets Jesus tonight,

 

Music: [00:03:46] I want her to look beautiful if Momma meets Jesus tonight.

 

Christina Phillips: [00:03:56] That is that is the whole point, and apparently I've been told by Rebecca that SNL spoofed it this week, so I need to go watch that, but it is so stupid, it is obnoxious. Oh, I hate it so much

 

Hannah McCarthy: [00:04:08] Christina, that reminds me my mother had a collection of Christmas books, one of which was the Little Match Girl, which is a charming Christmas story about a little girl who freezes to death.

 

Christina Phillips: [00:04:18] I loved that book because I was the kind of child who liked to pretend that I was always in danger of dying. I loved that.

 

Rebecca Lavoie: [00:04:25] Grim, grim.

 

Christina Phillips: [00:04:26]  Ok, OK, so Hannah, do you have a least favorite holiday song?

 

Hannah McCarthy: [00:04:31] I'm going to preface this by saying I bowed down at the feet of this individual. They have one of the greatest vocal ranges in human history. You'll always be. My baby is one of my karaoke songs. I cannot stand. All I want for Christmas is you.

 

Rebecca Lavoie: [00:04:47] Oh my god.

 

Hannah McCarthy: [00:04:48] I can't stand it.

 

Rebecca Lavoie: [00:04:49] We're done. You and me.

 

Nick Capodice: [00:04:49] There is a lot going on in that song in that song.

 

Hannah McCarthy: [00:04:53] Mariah Carey I love. I, you know, I'm saying this as though she's going to listen to it.

 

Rebecca Lavoie: [00:04:59] It is an American standard. How dare you?

 

Christina Phillips: [00:05:02] Why do you not like it? I need to know why.

 

Hannah McCarthy: [00:05:04] All I can tell you is that when that song comes on, I have this like. Dread dry feeling in my stomach like this, like horrible, just sick, I'm suppose, is so horrible. Mariah Carey, I'm sorry, you're an American treasure,

 

Nick Capodice: [00:05:21] But I respect your opinion. But I mean, I have to just disagree and say, that's one of the greatest songs ever. It's like wall of sound great. Like you're like, Whoa, what is going on here? Christmas song.

 

Hannah McCarthy: [00:05:32]  We're going to lose half our listeners because I'm the the demon.

 

Christina Phillips: [00:05:41]  OK, Nick? What is your least favorite holiday song?

 

Nick Capodice: [00:05:47] It's a song that I have to leave stores when it comes on, and it's performed by Andy Williams, and it starts off with like, Happy holidays, a hickory do, a hickory dock. Don't forget to hang up your sock and then he's got he'll be coming down the chimney down. Yeah. What the heck is coming down the chimney? Down down.

 

Music: [00:06:13] He'll be coming down the chimney, down down the chimney.

 

Nick Capodice: [00:06:20] The reason I hate this song, Rebecca, is that it rhymes toys with girls and boys.

 

Music: [00:06:25] It's got a toy for every good girl and good little boy.

 

Nick Capodice: [00:06:30] How much time did you have to come up with that one?

 

Rebecca Lavoie: [00:06:32] It has a rousing call and response section that I enjoy.

 

Christina Phillips: [00:06:53] Jacqui, what is your least favorite holiday song?

 

Jacqui Fulton: [00:06:56] So I used to work at a restaurant and they would they had like holiday playlist that they would do all the time and this one they played, it felt like every 30 minutes and it was Santa baby. It's so weird!

 

Jacqui Fulton: [00:07:12] It's like this person obviously has a big thing for saying which, you know, no shaming people for what they like.

 

Jacqui Fulton: [00:07:20] And like little kids sing this song!

 

Rebecca Lavoie: [00:07:40] And on that note, and I have a feeling that only one other person on this call may be familiar with this because they mentioned retail is Dominic the Donkey?

 

Hannah McCarthy: [00:07:50] The Italian Christmas Donkey?

 

Rebecca Lavoie: [00:07:53] The weirdest song that's strangely pandering to Italian-Americans in a way that is completely unnecessary. We didn't ask for it. We don't need it. And it's weird.

 

Nick Capodice: [00:08:14] My favorite Christmas story is about this song. I make it really fast. Ok? In Little Italy, in Manhattan, there's these storefronts that are clearly owned by organizations that don't actually sell anything. And one store was just, I don't know. I just don't want to get in trouble on our podcast. And one storefront window was completely dark and it just had one thing in it and it was a T-shirt and it said, Dominick, the Christmas donkey. And then in the bottom, it said, as featured in the movie Riding in Cars with Boys, starring Drew Barrymore.

 

Hannah McCarthy: [00:08:49] Ever since you told me that story, I'm just going to I'll give this away to you. Like, I have been searching for that T-shirt. So they want to gift it to you. I thought that was the greatest thing I'd ever heard.

 

Christina Phillips: [00:09:16] So here's how the trivia will work, we'll have three rounds of questions about different aspects of the holiday season at the White House. There will be bonus points in each round. The winner gets nothing but glory. That's right.

 

Rebecca Lavoie: [00:09:31] Nothing but glory, nothing, but glory is not going to be anything but glory,

 

Christina Phillips: [00:09:37] No, nothing.

 

Rebecca Lavoie: [00:09:38] But glory is this because our budget is so small because this is public radio. It's like nothing but glory.

 

Christina Phillips: [00:09:43] Also, I don't want to shop for Christmas anyway. I didn't want to get anyone anything. Sorry guys.

 

Rebecca Lavoie: [00:09:45] And this is a great time to remind listeners, by the way, they can donate to the show because we can't afford to give anything but glory. You get a sticker if you do go to Civics101podcast.org, make a donation. Maybe next year we'll have more than glory to give away. Yes. Yes. All right. Continue. Continue.

 

Christina Phillips: [00:09:59] All right. It's a great stocking stuffer. Probably. I don't know. Do people on stickers anyway?

 

Christina Phillips: [00:10:04] Rebecca, I'm going to hand this round off to you.

 

Rebecca Lavoie: [00:10:07] Ok, so in this round, Nick and Hannah questions are worth one point. I believe they're worth one point in every room. And of course, these points are extremely important because glory, yes, nothing but glory is at stake. The stakes are zero, except if you care about glory, which I believe you to do. So almost nothing else matters. Christmas toasts is the category the holiday season has served as a symbol of unity and peace throughout American history. I'm going to read you quotes of holiday messages delivered at the White House and a couple of questions related to each quote. Our first question is for Hannah McCarthy. This quote is from a world leader who ditched his own country's holiday celebration to meet with a U.S. president won't let the children have their night of fun and laughter. Let the gifts of Father Christmas delight their play. Let us ups share to the full in their unstinted pleasures before we turn again to the stern tasks and formidable year that lies before us.

 

Hannah McCarthy: [00:11:08] I'm supposed to guess the person.

 

Rebecca Lavoie: [00:11:09] Yes, which world leader ditched his own country's celebrations and delivered that speech

 

Hannah McCarthy: [00:11:16] At the White House? Churchill?

 

Rebecca Lavoie: [00:11:23] Yes. Very good.

 

Hannah McCarthy: [00:11:28] Because of the writing!

 

Nick Capodice: [00:11:30] Oh, I'm done for. 

 

Rebecca Lavoie: [00:11:30] Winston Churchill spoke on Christmas Eve, 1941 in a shared Christmas address with President Franklin Roosevelt during World War Two. Nick, follow up question for you What event took place on American soil earlier that same December?

 

Nick Capodice: [00:11:45] Oh, can you say the date one more time?

 

Rebecca Lavoie: [00:11:49] Sigh.

 

Nick Capodice: [00:11:49] I wasn't listening, can I say the can I say the bombing of Pearl Harbor?

 

Rebecca Lavoie: [00:11:56] You can.

 

Nick Capodice: [00:11:57] I wanted to just double check the date.

 

Rebecca Lavoie: [00:11:59] Of course, the bombing of Pearl Harbor in 1941 in December marked the United States official declaration of war in Japan and full entry into World War Two. Shortly thereafter, Germany and Italy declared war on the United States and the U.S. reciprocated. Churchill was in Washington, D.C., around Christmas to strategize with Roosevelt. Ok, quick tally. Where are we right now?

 

Christina Phillips: [00:12:20] Hannah has one, Nick has one. I feel like Hannah had the harder question.

 

Rebecca Lavoie: [00:12:25]  All right. Hannah McCarthy Yes. Roosevelt was known for holiday related executive orders during his presidency, including declaring an emergency federal bank holiday during the Great Depression. In a similar vein in 1939, Roosevelt moved which holiday a week earlier in an effort to stimulate the economy.

 

Rebecca Lavoie: [00:12:49] Oh, I read About this when I was making the Federal Holidays Episode,

 

Rebecca Lavoie: [00:12:55] I Would think you'd be prepared then For this question.

 

Hannah McCarthy: [00:12:57] You'd think I would be prepared, Rebecca, You'd think.

 

Hannah McCarthy: [00:13:01]  I mean, I would say Thanksgiving.

 

Rebecca Lavoie: [00:13:12] Really? You would, that is the correct answer.

 

Nick Capodice: [00:13:15] And it was just that one time, right?

 

Rebecca Lavoie: [00:13:17] Was it just that one time?

 

Christina Phillips: [00:13:18] Yes, it was. He actually became known for moving holidays around, and people would call this Franksgiving.

 

Nick Capodice: [00:13:25] Yeah, that's right.

 

Rebecca Lavoie: [00:13:27] Ok, now we are on to our second Christmas toast. Nick, you are getting the starting question for this one. Ok. The holiday season is a good time for people to flex their muscles, to brag a bit. In 1958, President Eisenhower stuck it to the Russians by broadcasting his holiday message to the American public from where?

 

Nick Capodice: [00:13:47] Wow, so Eisenhower stuck it to the Russians. Yes, by broadcasting.

 

Nick Capodice: [00:13:53] Oh oh, but no, it can't be.

 

Hannah McCarthy: [00:13:57] My guess is ridiculous.

 

Nick Capodice: [00:13:58] I was going to guess from space.

 

Rebecca Lavoie: [00:14:00] Wow, what a guess that is correct, Nick.

 

Rebecca Lavoie: [00:14:06] Shortly after the successful launch of Sputnik Russia's satellite into orbit, the Eisenhower administration faced pressure to keep up in the space race. So when a secret mission, the U.S. launched its first communications satellite into orbit in December with a recorded message from Eisenhower to broadcast on the radio. The audio quality is about what you'd expect from a satellite in space made in the 1950s.

 

Eisenhower from space: [00:14:33] The United States. All of the scientific advance, my voice is coming my satellite.

 

Rebecca Lavoie: [00:14:45] Unsurprisingly, the weak signal meant that only the biggest radio hobbyists nerds actually heard that first transmission, but most of the American public heard it rebroadcast on the news. Hannah. Follow up for you for a point to government agencies were created because of pressure from the public and Congress after the launch of Sputnik one was NASA. Can you name the other one? I will give you a hint if you need it.

 

Hannah McCarthy: [00:15:16] Oh, I'll take the hint, but I'm afraid it's going to make it worse. Give me the hint.

 

Rebecca Lavoie: [00:15:20] The hint is this agency is known for its creepy, creepy robots.

 

Christina Phillips: [00:15:29] Well, this is a hard one,

 

Rebecca Lavoie: [00:15:31] Is it? I thought my hint is pretty telling.

 

Hannah McCarthy: [00:15:34] Is there like a national science administration?

 

Rebecca Lavoie: [00:15:38] No. But there is a little organization called DARPA, which is pretty well known for its creepy, creepy robots. Sorry. The Defense Advanced Research Projects Agency was also created at the same time as NASA. Sorry, didn't get that one. Hannah, so we are now on our third toast question to this. This anchor question goes to you. Presidents have used their holiday addresses as a way to endear themselves to the people, instilling patriotism and put aside political division, sometimes with mixed success. In 1954, following the end of the Korean War, President Eisenhower's administration rebranded the lighting of the National Christmas tree as quote The Christmas pageant of Peace. This made it a little awkward for presidents in wartime, which Presidents Christmas pageant of peace was interrupted by protesters.

 

Hannah McCarthy: [00:16:30] Ooooh was it Kennedy?

 

Christina Phillips: [00:16:33] Think about presidents who a lot of people were really mad at them.

 

Rebecca Lavoie: [00:16:36] Imagine a president that might have gotten protesters at other events besides just the lighting of the Christmas tree. I mean, you want to take a second guess?

 

Hannah McCarthy: [00:16:45] Nixon?

 

Rebecca Lavoie: [00:16:46] Yeah, I think she made a half a point.

 

Rebecca Lavoie: [00:16:52]  Give her half.

 

Christina Phillips: [00:16:54] Ok, half a point.

 

Rebecca Lavoie: [00:16:55] Maybe you'll have an opportunity for half a point later. So, Nick, a follow up question for you. Nixon did not attend his pageant of peace in 71 and 72. I wonder why? Who gave speeches on his behalf instead?

 

Nick Capodice: [00:17:11] Oh wow.

 

Nick Capodice: [00:17:12] On speeches, on Nixon's behalf.

 

Nick Capodice: [00:17:14] So, uh, was it Ford?

 

Rebecca Lavoie: [00:17:21] No, no. Take a second guess for half a point.

 

Nick Capodice: [00:17:24] Yeah, yeah. Give me a second. Let's see. It Wasn't Spiro Agnew.

 

Rebecca Lavoie: [00:17:30]  It wasn't?

 

Nick Capodice: [00:17:31]  OK, Spiro Agnew.

 

Rebecca Lavoie: [00:17:34] Yay!

 

Rebecca Lavoie: [00:17:35] It was Vice President Spiro Agnew at the 1970 Pageant of Peace. By the way, Nixon did say we can look forward with assurance to the end of that war. The U.S., of course, would not leave Vietnam until 1975, so there was the storied history of the quote pageant of peace during the Nixon administration.

 

Christina Phillips: [00:17:54] I believe Nixon also one time I I try to find pictures of this, but I couldn't. He put a peace sign on top of the tree instead of a star, and a lot of people got really mad about that. But also, I like to imagine that if Ford had lit the Christmas tree, he would start it with. Our national nightmare has ended. Christmas has arrived.

 

Rebecca Lavoie: [00:18:24] So, Nick, this one is for you. Yeah. In nineteen seventy nine, during the quote pageant of peace, President Jimmy Carter made a symbolic statement when he chose to only light the star at the top of the national Christmas tree. Carter said the tree would remain dark until what happened. Oh oh my goodness, this was 1979 near the end of his administration, right?

 

Nick Capodice: [00:18:49] Ok, so let me just just talk out loud for a second, right?

 

Rebecca Lavoie: [00:18:52] Yes, you can talk.

 

Nick Capodice: [00:18:53] Carter cares about, you know, he cares deeply about world hunger. You near

 

Rebecca Lavoie: [00:18:57] The end of his administration.

 

Rebecca Lavoie: [00:19:02] Yeah. And he and there was. What is he waiting to have happen near the end of his administration, like the trees remaining dark until this Whole this thing happens?

 

Nick Capodice: [00:19:10] Yes. Hold on, I've almost got I've almost got it.

 

Rebecca Lavoie: [00:19:15] If you need a hint, I'm happy to give you one.

 

Nick Capodice: [00:19:17] Give me just 30 more seven more seconds. Sure. Think about what the thing is that he wants to have happen.

 

Rebecca Lavoie: [00:19:22] I know you can get this one.

 

Nick Capodice: [00:19:23] Is it the freeing of hostages from Iran?

 

Rebecca Lavoie: [00:19:25] It is the freeing of U.S. hostages at the embassy in Tehran, Iran. He was waiting for them to be released. The hostages were captured on November 4th, 1979, during a period of intense conflict between the U.S. and Iran. So Hannah McCarthy bonus question for you Approximately how long were the hostages held at the embassy?

 

Hannah McCarthy: [00:19:50] I will just I'm going to be completely honest, I have absolutely no idea zero inkling,

 

Rebecca Lavoie: [00:19:56] One of the easiest numbers to remember in political history. I believe, Nick, do you know the answer to this question?

 

Nick Capodice: [00:20:03] I don't know the number.

 

Christina Phillips: [00:20:05] Can we get a guess, I just I'm curious how long you think that they were held because I was surprised. I did not know that. I did not know I was.

 

Nick Capodice: [00:20:15] It was the year I was born.

 

Rebecca Lavoie: [00:20:16] Hmm. I guess I am really old. 80 days.

 

Hannah McCarthy: [00:20:19] Or seventy nine days?

 

Rebecca Lavoie: [00:20:20]  Four hundred and forty four days.

 

Nick Capodice: [00:20:24] Yes, it's way longer than I thought.

 

Rebecca Lavoie: [00:20:25] Yes, yes. And of course, if you want a telling of the story or a part of the story, I would highly recommend the Oscar winning movie Argo, directed by my favorite boyfriend of Jennifer Lopez, Ben Affleck. Ok, where are we score wise host Christina Phillips?

 

Christina Phillips: [00:20:42] Nick, you have three and a half, Hannah. You have two and a half.

 

Rebecca Lavoie: [00:20:55] When we get back from the break, we'll find out if Hannah can redeem herself as we turn to the next round of civics trivia revolving around holiday time. But one quick note you can get all kinds of trivia and ephemera and civics facts in our Civics 101 newsletter called Extra Credit. It's free, it's fun, it's biweekly, and everyone loves it. Sign up for it at civics101podcast.org or just click the link in our show notes to get on the list. Welcome back to our special holiday break edition of Civics 101, where we're putting hosts Hannah McCarthy and Nick Capodice to the test, pitting them against each other with a series of trivia questions about civics and the holidays before we return to the show. Might I remind you if you love the podcast, support it, make a donation in any amount and we'll send you a snazzy sticker that says the constitution is my copilot. You can make that gift at civics101podcast.org or just click the link in the show notes. All right, let's get back to the trivia.

 

Christina Phillips: [00:22:17] Our next round will be about the celebration of Hanukkah at the White House. This is a multiple choice round, so buzz in after we've read all the options and so I've asked you to select a buzzer noise. Nick, what is your buzzer noise?

 

Nick Capodice: [00:22:30] My buzzer noise is this.

 

Rebecca Lavoie: [00:22:34] Very good. I hate you know what that is. So I do, you know, Rebecca?

 

Hannah McCarthy: [00:22:38] Yeah, it's the horse sound at the end of what the Christmas song that I don't.

 

Rebecca Lavoie: [00:22:46] Yeah, yeah, yeah, yeah, yeah. It's sleigh ride.

 

Nick Capodice: [00:22:49] I want to tell you it's sleigh ride, sleigh ride, sleigh ride.

 

Nick Capodice: [00:22:52] Oh, it's the horse whinny. And I got to be the horse whinny when we played it in high school.

 

Rebecca Lavoie: [00:22:56] Yeah, the greatest high school concert band number ever. Because some percussionist gets to play the whip, which is, yeah, two blocks on a stick that go, which I got to do it four times a night, but

 

Rebecca Lavoie: [00:23:10]  All right, go ahead. What is your buzzer, Hannah?

 

Hannah McCarthy: [00:23:13] I don't know. Nick selected it for me. Why are you?

 

Rebecca Lavoie: [00:23:16] Oh, really?

 

Nick Capodice: [00:23:19] Well, you could try this one instead. You got this one.

 

Hannah McCarthy: [00:23:25] I want that one. Yeah.

 

Nick Capodice: [00:23:26] Ok, so this is You Mario going down the pipe? Press it one more time to make sure

 

Hannah McCarthy: [00:23:30] It gives me childhood anxiety. Yeah, because I tried really hard at that game and I never did well.

 

Christina Phillips: [00:23:33]  All right. We are headed into our next round. It is all about the celebration of Hanukkah at the White House. This is multiple choice buzz in after we've read all the options, Jacqui. You are going to be leading us through this round. Take it away.

 

Jacqui Fulton: [00:23:50] Ok, question one. Presidents only began honoring Hanukkah in the 20th century, when this president was the first to light a menorah during the holiday season alongside the lighting of the national Christmas tree. Was it a Franklin Roosevelt? B John F Kennedy, C Jimmy Carter or D George H.W. Bush?

 

Rebecca Lavoie: [00:24:16] We get the same exact time,

 

Hannah McCarthy: [00:24:19] Same time, except yours is

 

Rebecca Lavoie: [00:24:20] Louder.

 

Nick Capodice: [00:24:21] No, you hit it twice, so it turned off, you did that.

 

Rebecca Lavoie: [00:24:24] Oh, we have a dispute, we have a dispute. I don't know what..

 

Nick Capodice: [00:24:29]  We could both say it at the same time. Yep.

 

Nick Capodice: [00:24:31] Ok. All right. Three. Jimmy Carter,

 

Rebecca Lavoie: [00:24:35] Do you think happens? They both get the point.

 

Christina Phillips: [00:24:36] I'm going to give them both the point. All right.

 

Jacqui Fulton: [00:24:39] So initially, Carter Secretary of the Interior Cecil Andrus, denied the permit for a menorah on government property, saying it violated the First Amendment. Carter's adviser, Stu Eizenstat, told Andrus that if he denied the permit for the menorah, he would also have to deny the permit for the Christmas tree, and he backed down.

 

Nick Capodice: [00:24:58] Wow, that's a good story. You know where you can read about that, that whole crazy story, Rebecca, where an extra credit, biweekly newsletter? It was like two years ago. I don't remember who wrote it if it was an

 

Hannah McCarthy: [00:25:10] I think it was You,

 

Nick Capodice: [00:25:12] But it was all about that. That was such a good story, Jacqui, when he was like, Well, then we'll just, you know, the Christmas tree Christmas.

 

Christina Phillips: [00:25:22] I love the idea that Eisenstadt was like, Oh, do I just maybe we don't have to do any of it this year. I don't have to worry about any of it.

 

Jacqui Fulton: [00:25:29] All right. Question to you guys ready? Yeah, OK. During a menorah lighting ceremony in the Oval Office in 1993, President Clinton acted quickly when Watt accidentally caught fire a stack of papers on the Resolute Desk B a young girl's ponytail, c a Secret Service member sleeve, or D the Oval Office carpet.

 

Christina Phillips: [00:25:56] That was definitely Hannah.

 

Rebecca Lavoie: [00:25:58] That was me, a little girl's hair caught fire! A ponytail!

 

Jacqui Fulton: [00:26:04] You seem really excited about her hair catching on fire.

 

Hannah McCarthy: [00:26:10]  Actually, if you watch the video, it happens in a flash.

 

Jacqui Fulton: [00:26:13] Yeah, a young girl's ponytail. The menorah was sitting on the desk behind her, and Clinton noticed the flame and put it out with his hands.

 

Christina Phillips: [00:26:30] He was very, very subtle about it, like it was just like, yeah,

 

Hannah McCarthy: [00:26:33] It was very,

 

Christina Phillips: [00:26:34] Yeah, you can't even tell what happened.

 

Rebecca Lavoie: [00:26:36] That little girl was inside of us all along.

 

Nick Capodice: [00:26:39]  And that little girl grew up to be...

 

Rebecca Lavoie: [00:26:40] The little match girl.

 

Nick Capodice: [00:26:43]  The little match girl.

 

Jacqui Fulton: [00:26:53] All right, question number three. In 2013, the first day of Hanukkah fell on Thanksgiving Day. President Obama presented a monarchy during an event at the end of the holiday. What is the monarchy? Was it a turkey carved in the shape of a menorah? Be a menorah carved in the shape of a turkey? See the live turkey. Obama had pardoned on Thanksgiving, wearing a sweater with menorahs on it, or d an aide wearing a turkey costume carrying a menorah.

 

Christina Phillips: [00:27:25] Hannah, what is it?

 

Hannah McCarthy: [00:27:26] Be a menorah carved to look like a turkey.

 

Christina Phillips: [00:27:30] Yes. Yes, we have the audio of that.

 

Barack Obama: [00:27:32] We've got 10 year old Asher Weintraub from New York City. Where's Ashley? Asher came up with what we believe is the world's first ever menorah shaped like a turkey. It is called the monarchy. Where is the monarchy? I had it just a second ago.

 

Jacqui Fulton: [00:27:51] Obama was also the first president to hold a ceremonial seder during Passover.

 

Rebecca Lavoie: [00:27:56] Oh, amazing. I didn't know that.

 

Hannah McCarthy: [00:27:58] Yeah. You know, I've never been to a Seder. I've always wish my friends in high school would invite me, and they never did.

 

Rebecca Lavoie: [00:28:06] So where are we score wise for this round?

 

Christina Phillips: [00:28:08] Nick, you have four and a half points and you have five and a half points.

 

Nick Capodice: [00:28:13] Wow. Ok. How quickly the wheels of time.

 

Rebecca Lavoie: [00:28:39] So we are headed into our final round, Christina and I am going to hand it off to you. I'm going to be doing the scoring and you are going to be doing the question reading because this round you came up with and you deserve to do it. So take it away.

 

Christina Phillips: [00:28:56] In 1961, Jacqueline Kennedy was the first first lady to give the White House holidays a theme which would help determine how the White House was going to be decorated that year. The theme was The Nutcracker Suite, so our next round is this or that you have to guess whether I'm naming a White House holiday theme or a scented product from Bath and Body Works.

 

Hannah McCarthy: [00:29:26] Well, I grew up in the 90s and I went to the mall a lot.

 

Christina Phillips: [00:29:30] This is going to be interesting. You'll get a bonus point if you can either name the first lady or describe the scent. If you come even a little bit close to how bath and body works, describes that scent will give you the bonus points.

 

Rebecca Lavoie: [00:29:47] Stream of consciousness. Any word, any fruit, any nut, any spice.

 

Christina Phillips: [00:29:54] Plus, there will be four first ladies that you can choose from, and we will read them out for you. After you guess, we'll remind you of who those first ladies are, but they are Laura Bush, Hillary Clinton, Michelle Obama or Pat Nixon. And there may be more than one theme from the same first lady.

 

Rebecca Lavoie: [00:30:13] Hmm. Ok, so White House themes four first ladies. One store that sells a lot of stinky stuff. Ok, take it away, Christina.

 

Christina Phillips: [00:30:23] Ok, Hannah, first question is for you. Is this a White House holiday theme or a scent from Bath and body works? Winter Wonderland?

 

Hannah McCarthy: [00:30:38] It's so broad, I'm going to say it's a theme.

 

Rebecca Lavoie: [00:30:41] You are correct.

 

Christina Phillips: [00:30:43] So here's a little more about this. The Knitting Guild of America and the Society of Decorative Painters work together with fabric artists from each state on these ornaments, so every state had different ornaments that were themed winter wonderland. Ok. All right, bonus question for you, Hannah. Yeah. Was this Laura Bush, Hillary Clinton, Michelle Obama or Pat Nixon?

 

Hannah McCarthy: [00:31:09] Just because of the how basic it is, I'm going to guess Pat Nixon.

 

Nick Capodice: [00:31:13] Sorry that she was the first first lady to get a college degree.

 

Rebecca Lavoie: [00:31:18] No, I'm just saying the era. Just the era.

 

Christina Phillips: [00:31:20] Yeah, no. It was like Clinton in 1998.

 

Nick Capodice: [00:31:26] Woa, you just called Hillary Clinton basic.

 

Christina Phillips: [00:31:29] I love it.

 

Nick Capodice: [00:31:30] Somebody is not with her. Saw her drinking a white claw the other day.

 

Rebecca Lavoie: [00:31:41] She was cutting those sugar cookies from that roll.

 

Nick Capodice: [00:31:46] Listening to All I want for Christmas is you.

 

Christina Phillips: [00:31:51] All right.

 

Christina Phillips: [00:31:52] Question number two. This is for you, Nick. Is this a White House holiday theme or is sent from Bath and body works? Fresh, sparkling snow.

 

Nick Capodice: [00:32:05] I mean, that you'd have to be a first lady going through some stuff. The theme, Oh, I'm going to go with Bed Bath and body works.

 

Rebecca Lavoie: [00:32:16] Oh, shoot.

 

Nick Capodice: [00:32:17] I always do that. I'm going to do scent. Sorry.

 

Christina Phillips: [00:32:21] Can you Imagine? Bed Bath and body works.

 

Hannah McCarthy: [00:32:25] The ultimate collab, I would go there every day.

 

Christina Phillips: [00:32:30] I cannot imagine them combined.

 

Rebecca Lavoie: [00:32:32] The towels would be scented forever.

 

Nick Capodice: [00:32:33] Forever scented. Oh God.

 

Christina Phillips: [00:32:36] Oh, you are correct, Nick. Oh, the scent from bath and body works. Ok, here's your bonus question. Yeah. Name three things.

 

Rebecca Lavoie: [00:32:44] Anything I think anything.

 

Christina Phillips: [00:32:47]  You can name three things What do you think? Fresh, sparkling snow smells like

 

Rebecca Lavoie: [00:32:53] Stream of consciousness, Nick. If you name Anything.

 

Nick Capodice: [00:32:57] Well. Can you say it's fresh? What kind of snow?

 

Rebecca Lavoie: [00:33:01] Fresh, sparkling.

 

Nick Capodice: [00:33:02]  Fresh, sparkling snow?

 

Nick Capodice: [00:33:04] I mean, I feel like it's going to have some sort of like wintergreen, vanilla, a pine.

 

Christina Phillips: [00:33:13] All right. Do you want to hear the description? Here we go. Here we go. Fresh, sparkling snow, cool and crisp, just like the first snowfall of the season. Icy melon. Winter pine,

 

Rebecca Lavoie: [00:33:25] Yes.

 

Christina Phillips: [00:33:26] And fresh citrus.

 

Rebecca Lavoie: [00:33:28] You got it with the pine. Yeah, yeah. With the pine melon pine.

 

Nick Capodice: [00:33:32] Nothing says Christmas. Like the scent of melon.

 

Christina Phillips: [00:33:35] I have a question. Is icy melon a melon? Or is that just melon that's frozen

 

Hannah McCarthy: [00:33:40] There's no such thing. It's not like a type of melon.

 

Rebecca Lavoie: [00:33:43] I think that's just bath and body works saying this melon is actually just chemicals.

 

Nick Capodice: [00:33:50] It's an in case of emergency melon.

 

Christina Phillips: [00:33:53] All right, Hannah. Question three Is this a White House holiday theme or are you sent from Bath and body works a thousand Christmas wishes?

 

Hannah McCarthy: [00:34:05] Um, a theme.

 

Christina Phillips: [00:34:06] No,

 

Hannah McCarthy: [00:34:07] No. How is that a scent, for the love of God?

 

Christina Phillips: [00:34:13] Ok. A thousand Christmas wishes I sent from Bath Body Works. Can you give me three tasting? Scenting notes that you think is a thousand Christmas wishes?

 

Rebecca Lavoie: [00:34:23] You had a chance to redeem yourself or just name some stuff.

 

Hannah McCarthy: [00:34:26] I do think vanilla is a good guess. Maybe peppermint

 

Rebecca Lavoie: [00:34:34] And. A thousand Christmas wishes?

 

Rebecca Lavoie: [00:34:42] I'm going to give you a hint. Obscure Christmas fruits.

 

Hannah McCarthy: [00:34:50] Obscure Christmas fruits, so not citrus, then. Uh.. Cranberry. All right.

 

Christina Phillips: [00:34:58] Ok, I'm going to read the description. But what did she say again? We got vanilla

 

Rebecca Lavoie: [00:35:01] She didn't get it.

 

Hannah McCarthy: [00:35:02] Rebecca is so disappointed.

 

Christina Phillips: [00:35:02] A celebratory blend of pomegranate prosecco, sweet elderberries star jasmine and sugared Woods.

 

Hannah McCarthy: [00:35:13] Sugared wood.

 

Nick Capodice: [00:35:14] Oh my gosh, that's where the winter melon grows.

 

Rebecca Lavoie: [00:35:17] The icy melon.

 

Nick Capodice: [00:35:19] Icy melon grows in the sugar Woods.

 

Christina Phillips: [00:35:22] I'm just picturing a piece of bark that somebody sucking.

 

Rebecca Lavoie: [00:35:25] All right, so right now, just so you know, we have a tie game, it is six and a half to six and a half. That was your chance to pull it in.

 

Hannah McCarthy: [00:35:34] I know now that you're saying that I feel like I remember reading that description in bath and body works.

 

Nick Capodice: [00:35:39] I thought it was. I thought it was. Was it too? Was it orange in color?

 

Christina Phillips: [00:35:43] Oh, I have no idea, but I could check.

 

Jacqui Fulton: [00:35:45] They just took a thousand different chemicals. Put it in there.

 

Hannah McCarthy: [00:35:48] It's like a thousand Christmas chemicals.

 

Christina Phillips: [00:36:18] All right, Nick, question for is this a White House holiday theme or a scent from bath and body works: home for the holidays? Oh no.

 

Nick Capodice: [00:36:29] This would be great as both, I'm going to say White House Christmas theme.

 

Christina Phillips: [00:36:34] You are correct, and I think by the way, I did cross reference. Yeah, I made sure that there was no overlap because it was it was a close thing.

 

Nick Capodice: [00:36:44] A I can tell you that if it was a scent, it would have gingerbread in it.

 

Christina Phillips: [00:36:49] A White House holiday theme. Here is the theme. It featured historic house ornaments designed by local architects, so local houses of each state as ornaments. Laura Bush, Hillary Clinton, Michelle Obama or Pat Nixon.

 

Nick Capodice: [00:37:05] Oh, it sounds like something a Carter would do, but let me see here.

 

Rebecca Lavoie: [00:37:08] Hold on. That wasn't one of the choices.

 

Nick Capodice: [00:37:10] Yeah. No, I was just talking out loud. I'm pretending like it's the wait. Wait, don't tell me. Except we don't have the answers given to us. Yes. They don't, do they. It just made that up. Oh, I'm going to guess Laura Bush.

 

Christina Phillips: [00:37:28] Yes.

 

Hannah McCarthy: [00:37:30] Oh, boooo.

 

Rebecca Lavoie: [00:37:33] Somebody is ahead by two points.

 

Christina Phillips: [00:37:36] Important follow up, Hannah, is that basic or not basic: Home for the holidays?

 

Nick Capodice: [00:37:43] Very, very complicated and sophisticated.

 

Christina Phillips: [00:37:48] Ok. And question number five simple gifts.

 

Hannah McCarthy: [00:37:56] If I were the designer of scents at Bath and Body Works, I would never describe my scent is simple because they're all about complexity and strangeness. I'm going to say it was a theme.

 

Christina Phillips: [00:38:14] You are correct.

 

Hannah McCarthy: [00:38:15] Oh, thank God,

 

Rebecca Lavoie: [00:38:17] I love hearing the logic.

 

Christina Phillips: [00:38:18] Yes. So simple gifts. The theme was honoring state and county fairs and featured prize ribbons from each state and territory, and it was known as the gift of the American spirit.

 

Hannah McCarthy: [00:38:32] I'm again going to say Pat Nixon.

 

Christina Phillips: [00:38:36] It was not Pat Nixon, it was Michelle Obama.

 

Hannah McCarthy: [00:38:44] I'm sweating so much.

 

Rebecca Lavoie: [00:38:49] Yes, well, Nick, you have one more chance to win it by a lot.

 

Hannah McCarthy: [00:38:54]  Was that my last question?

 

Rebecca Lavoie: [00:38:57] I'm afraid to say it was so nick. This last question will determine just how much glory it is you have in this game

 

Rebecca Lavoie: [00:39:05] To go find my trumpet.

 

Hannah McCarthy: [00:39:07]  Curse Pat Nixon and the space she takes up in my brain

 

Jacqui Fulton: [00:39:11] She is far more complex than you thought.

 

Rebecca Lavoie: [00:39:12] Living rent free.

 

Christina Phillips: [00:39:16] Ok, Nick. Question six Is this a White House holiday theme or a scent from Bath and Body Works. Holiday Cheers.

 

Nick Capodice: [00:39:26] Wow.

 

Hannah McCarthy: [00:39:26] Cheers, plural?

 

Christina Phillips: [00:39:28]  Yeah.

 

Nick Capodice: [00:39:28] If it was a theme for the White House, they'd have to be like about cheers and drinks and toasts. And it's just

 

Hannah McCarthy: [00:39:34] Or the bar Cheers.

 

Nick Capodice: [00:39:35]  Yeah, where everybody votes their party.

 

Hannah McCarthy: [00:39:39] Cheerleaders of America.

 

Nick Capodice: [00:39:41] Holiday cheers. I'm going to say I'm going to say bath and body.

 

Rebecca Lavoie: [00:39:45] Oh, you are correct.

 

Nick Capodice: [00:39:48] Sorry.

 

Hannah McCarthy: [00:39:51] Ok, I get extra points for the fun trivia I noticed off the top of my head.

 

Rebecca Lavoie: [00:39:55] You get extra points for winning the lightning round with your buzzer man. As far as yes.

 

Christina Phillips: [00:39:58] Yeah, OK, I actually think it would be fun. I want you both to guess what the scent is, so each of you is going to name one thing. We'll go back and forth three times. What do you think holiday cheers smells like, Nick? One.

 

Nick Capodice: [00:40:13] Ok. Give me a second! Holiday cheers. Cinnamon.

 

Christina Phillips: [00:40:20] Ok, Hannah.

 

Rebecca Lavoie: [00:40:21] No, by the way, no cinnamon.

 

Hannah McCarthy: [00:40:25] Given that they put prosecco in one of their beverages, beverages in one of their scents, I'm going to guess Prosecco again.

 

Rebecca Lavoie: [00:40:31] No, no

 

Nick Capodice: [00:40:33]  I'm going to say cloves.

 

Rebecca Lavoie: [00:40:36] No.

 

Hannah McCarthy: [00:40:38] What was your first, cinnamon?

 

Nick Capodice: [00:40:40] Oh, I got another guess, yeah.

 

Hannah McCarthy: [00:40:41] You already said cinnamon.

 

Rebecca Lavoie: [00:40:42] I did.

 

Hannah McCarthy: [00:40:44] Mulled wine.

 

Nick Capodice: [00:40:48] Now I'm going to guess some sort... I'm going down Eggnog Road. I'm going to say nutmeg.

 

Christina Phillips: [00:40:53] Yes.

 

Nick Capodice: [00:40:56] Give me that nutmeg,

 

Christina Phillips: [00:40:58] This is the description, creamy, sweet and extra toasty, it makes the holidays that much more cozy, warm vanilla, spiced rum and a dash of nutmeg. So I know you were very close with the the alcohol guess.

 

Rebecca Lavoie: [00:41:12] So Nick, you are the winner of our first ever Civics 101 holiday trivia game. How does it feel to have all of the glory?

 

Nick Capodice: [00:41:19] You've all heard a little bit. I'm going to tell you it's not pleasant.

 

Christina Phillips: [00:41:23] I would just like to point out that Pat Nixon had none of those themes. I threw her in there as a decoy and it worked.

 

Rebecca Lavoie: [00:41:28]  Yes, it sure did.

 

Christina Phillips: [00:41:31] Nick and Hannah, thank you for being such good sports and for joining us today.

 

Nick Capodice: [00:41:35] Thank you. Thank you. You'll get me now. You'll get you'll get into next year.

 

Hannah McCarthy: [00:41:39] Jackson had a snowball fight in the White House with little balls of cotton. I know that!

 

Christina Phillips: [00:41:44] She's just going to start spouting White House bags for the next year. Jacqui, thank you so much for joining us and for leading that round.

 

Jacqui Fulton: [00:41:52] Oh yeah, my pleasure.

 

Christina Phillips: [00:41:53] Executive producer Rebecca Lavoie,

 

Rebecca Lavoie: [00:41:55] Thanks for coming to my basement to record this with me.

 

Christina Phillips: [00:41:57] Thank you for allowing me to interlope in your basement.

 

Christina Phillips: [00:42:01] And for everyone at Civics 101. We hope you have a great holiday season and that you have a Happy New Year. Happy New Year!

 

Hannah McCarthy: [00:42:36] What theme would you pick?

 

Hannah McCarthy: [00:42:39] I'm sorry, I'm sorry.

 

Christina Phillips: [00:42:40] I love it, I love it. No, I want to know.

 

Nick Capodice: [00:42:43] I would pick like sort of like root vegetables and roasted root vegetables.

 

Hannah McCarthy: [00:42:51] I would pick just because I believe, you know, death is always with us.

 

Rebecca Lavoie: [00:42:56] The little match girl.

 

Hannah McCarthy: [00:42:59] I would pick. I would pick A Christmas Carol. Our tree topper is the ghost of Christmas present. Yeah. I feel like, you know, just remember, everybody, it can all go away in a second.

 

Christina Phillips: [00:43:15] So, Jacqui  what would you pick? What would yours?

 

Jacqui Fulton: [00:43:17]  Oh mean girls.

 

Christina Phillips: [00:43:21] I love that

 

Rebecca Lavoie: [00:43:29] This episode of Civics 101 was written by Christina Phillips and produced by me, Rebecca Lavoie, with help from Jacqui Fulton, thanks to our special guests Civics 101 host Hannah McCarthy and Nick Capodice for letting us put you through the trivia ringer and for all you do all year round to make the show a joy to work on and to listen to. This episode featured music by the Starlight Singers, Andy Williams, kids singing Lou Monte Wesleyan Studios and the Royal Philharmonic with scoring by Henry Lavoie and our special apologies to Mariah Carey. You really are awesome. Despite what Hannah says, Civics 101 is a production of New Hampshire Public Radio.

 



 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

The Lottery

The lottery generates over $70 billion in revenue each year. Today on Civics 101 we explore how we got here; from failed lotteries in the Revolutionary War to the Golden Octopus to the Numbers Game to a Mega Millions ticket from your neighborhood shop. Where does all of that money GO? And why are states so dependent on them in the first place?

Taking us on this madcap journey are two experts on the lottery in the US; Kevin Flynn (author of American Sweepstakes) and Matthew Vaz (author of Running the Numbers).

Also, we're in a friendly competition with our friends at Outside/In as to who can raise the most sugar during our year-end fund drive. Push us over the edge with a small donation today and you'll get a really cool sticker!

lottery FINAL FINAL.mp3: Audio automatically transcribed by Sonix

lottery FINAL FINAL.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Nick Capodice:
And a quick note before this episode on the lottery, which is one of those things you think isn't really a civics topic, but then it ends up being very much a civics topic. Uh, I want to jump in and share with you all that we have done over two hundred and fifty episodes of Civics 101. And it feels like we haven't even scratched the surface. There are dozens of departments Supreme Court decisions, cabinet positions, legislative powers that need to be explored. This show was created to address your questions about our government, how it works, but we need listener support to answer those questions. Make your year end tax deductible donation at Civics101podcast.org and you'll receive a very snazzy civic sticker, as well as our eternal thanks. Help us at Civics 101 Demonstrate and HPR that a show like ours with a cause like ours is a worthy investment. All right, onto the episode.

Kevin Flynn:
There's always been a lottery.Do we agree with old man Warner thatThe lottery should be continued simply because there's always

Nick Capodice:
Been one as Oklahomans try to strike it rich? They also invest in Oklahoma's future? Or do we

Speaker3:
Object with Tessie that the whole thing just isn't fair,

Hannah McCarthy:
Isn't right? And so people who buy tickets thinking, Hey, I'm helping education, do you think they're really doing as much as they think they are? They they believe they

Kevin Flynn:
Are, but they're absolutely not benefiting education.

Speaker3:
Whatever else Shirley Jackson has done in her story, she has certainly given us a memorable image.

Hannah McCarthy:
We're not talking about that lottery, are we, Nick?

Nick Capodice:
Well, as every English teacher in America knows Hannah. The morning of June 27 was clear and sunny with the fresh warmth of a full summer day.

Hannah McCarthy:
All right, I'm going to put the kibosh on Shirley Jackson from the outset, although I will say that short story is all about hyper local government. But I do want to ask you with all seriousness, what does buying a ticket and maybe winning millions of dollars have to do with U.S. governmental systems? Why are we doing a civics episode on the lottery?

Kevin Flynn:
Because I'm an awesome guy. No, that isn't the right answer.

Hannah McCarthy:
Wait is that Kevin?

Nick Capodice:
It is. I'll let him introduce himself here.

Kevin Flynn:
My name's Kevin Flynn. I'm a former journalist and author, and I wrote the book American Sweepstakes; How One Small State Bucked the Church, The Feds and the Mob to usher in the lottery age.

Nick Capodice:
So we've got to do a whole mess of full disclosure here. Kevin Flynn is indeed a writer, podcast host, TV and radio journalist

Hannah McCarthy:
And dear friend.

Nick Capodice:
And.

Hannah McCarthy:
And he's married to our executive producer, Rebecca Lavoie.

Nick Capodice:
He sure is. But we were in a civics one one production meeting, talking about the lottery and its intersection with the government, and we learned that Kevin had written a book on it. And so we had to have him on the show.

Hannah McCarthy:
All right now, we got that out of the way. Did he give a reason on why civics listeners should be interested in the lottery?

Kevin Flynn:
It's a great question. The lottery is just a big part of state government these days.

Hannah McCarthy:
How big?

Nick Capodice:
Big, real big. You're listening to Civics 101. I'm Nick Capodice,

Hannah McCarthy:
I'm Hannah McCarthy

Nick Capodice:
and today we are talking about the U.S. lottery. How it started, ended, started again. How much money it makes and where that money goes.

Hannah McCarthy:
Now, Kevin said lottery is a big part of state government, but does every state in the U.S. have one?

Nick Capodice:
Almost almost. Mississippi was the most recent state to adopt a lottery. They started selling tickets in 2020.

archival:
Scratch off tickets for the very first time, And Mississippians can take a shot at winning without Having to leave the state.

Nick Capodice:
Five states do not have a lottery. Alaska, Hawaii, Utah, Alabama and Nevada.

Hannah McCarthy:
So when did this all start? Like, what was the first lottery?

Kevin Flynn:
Oh, we have always had lotteries in civilization, right? Lotteries go back to the Bible, right? In the Old Testament. It was, you know, casting lots was the way that a lot of times the the will of God was divined. King Saul was selected because of a drawing of lots. Do you remember when the apostles were down a man where they were down to 11 guys for some reason?

Hannah McCarthy:
Down a man, as in after Judas Iscariot died?

Nick Capodice:
Yeah.

Nick Capodice:
There were two candidates to become the new Twelfth Apostle, and they cast lots, it means they threw sticks of different lengths on the ground to see who it would be, and it ended up being Mathias. And OK. That's more Bible than civics 101 has ever had. And maybe it's just so I could use clips from Jesus Christ Superstar.

You want me to do it!

Nick Capodice:
But let's move on.

Kevin Flynn:
The Great Wall of China was financed some repairs that were financed by the Chinese for an early version of Keno. I think they called it the the white pigeon game.

Nick Capodice:
The roads to Rome, Hannah, were paid for by raffles. And to finally wend our way towards America. The Jamestown settlement in Virginia, the first permanent English settlement in the Americas, was financed with a lottery.

Hannah McCarthy:
You're kidding me

Kevin Flynn:
So you could say America really is, you know, the the child of a lottery. Part of the Continental Army was financed through a lottery. George Washington wanted to raise $10 million to pay for the Revolutionary War in the Continental Army through a lottery. So, you know, it was always it's something that's been around, you know, since since people had money.

Nick Capodice:
I want to add, by the way, that lottery in 1776 to help pay for the Revolutionary War failed utterly. They didn't come even close to raising enough money. Congress printed a hundred thousand tickets, but they only sold around 30000. So to pay for the war, they just printed a bunch of money instead and borrowed a lot from France. But what's important is that it set a precedent for other lotteries in our new country to help pay for infrastructure like roads and bridges.

Hannah McCarthy:
All right now, this is where it starts to become a civics conversation, right? Armies, roads and general infrastructure costs usually fall into the purview of government expenses. So why is a lottery involved at all?

Nick Capodice:
A lottery is a way to get money for something when you don't have the power or the political interest to tax people. If you want to build a covered bridge and you don't have the money in your state budget to do it. Having a lottery to build that bridge where the winner gets some of the money from the lottery tickets and the rest goes to building the bridge; that might get you reelected, whereas raising taxes might not. So from our nation's founding up to the eighteen forties over the whole United States, hundreds and hundreds of lotteries were springing up to pay for stuff. And when you have a lot of lotteries, you start to also get a lot of rigging of lotteries to pick winners.

Kevin Flynn:
So it's just, you know, when you deal with a lot of cash like that, you know, sharpies are going to come in and do what they do. That's a lot of sugar. Nick, there's a lot of sugar there. It's funny because, you know, let's go to like the the mid eighteen hundreds. Lotteries ended up getting kind of a stink on them in in public, not illegal, but in a nation where cockfighting and duels and poker games are considered gentlemanly. It was lotteries that, you know, started to get a bad name, in part because no, no poor person ever died in a duel. Right? That was that was the lotteries ended up democratizing gambling.

Hannah McCarthy:
So rich folks are gambling left and right. But the one form of gambling that working class Americans can participate in gets a bit of stigma.

Nick Capodice:
Yeah, and is often the case. In these instances, somebody just went a little too far. The biggest lottery in America in the 19th century was called the Louisiana Lottery Company, and it was huge. It was nicknamed the Golden Octopus. Its hands were everywhere. People all over the country played it. Over half of the mail in New Orleans was lottery tickets. And what the company did is they paid 40 grand each year to a charity hospital, and they got to keep the rest of their profits tax free. There was a staggering amount of corruption. Bribes got paid to reps in state and federal legislatures all over the country. So in response, the federal government passed a bill banning the sale of lottery tickets in the mail. So the Louisiana lottery company moved to Honduras. And finally, in eighteen ninety five, all lotteries in the United States were banned. And that's it.

Hannah McCarthy:
This is making me think of prohibition. Ok, right? You've got something that's legal. Highly profitable. Very popular, very prevalent. And then it's made illegal. And I would say that just with booze, but with a lot of things in history, what history has shown us is that when you then make it illegal, it rarely, if ever actually goes away.

Nick Capodice:
Naturally.

Hannah McCarthy:
And I know that the lottery didn't go away because I grew up in Massachusetts, and I know that I can walk outside and I can buy a ticket. So how did we get from the banning of the golden octopus to lotteries being run in most states?

Nick Capodice:
We get there via something called the numbers.

Matthew Vaz:
OK. You know, once upon a time, it's not a good way to start, right?

Nick Capodice:
I counter that once upon a time is always a good way to start. And this is Matthew Vaz. He's a professor at City College of New York, and he wrote a fascinating book called Running the Numbers, Race Police and the History of Urban Gambling. So once upon a time, there was a popular illegal game called policy,

Matthew Vaz:
And it involved betting on several two digit numbers between one and seventy two. The odds are a little complicated, but it offered a way to make a small bet on a number of guess and come out with a decent amount of money. If you win, you could bet a dollar, and maybe in some situations you could win two hundred dollars. But the winning numbers were generated by the spinning of a wheel, so to speak, and maybe sort of draw out almost like a pulling a ping pong ball out of a barrel kind of a thing.

Nick Capodice:
But the problem with policy was that like all lotteries beforehand, they could be rigged. The person picking out the ping pong ball could cheat and grab one with their friend's number on it. And they did. But a new system was born in Harlem in the 1920s,

Matthew Vaz:
And most people believe that it was a man named Caspar Holstein, who was an immigrant to New York from the West Indies, developed a new method for arriving at winning numbers. He came up with a game that is typically called the numbers that involves placing a bet or on a guess of what the last three digits before the decimal point will be in a massive number generated by some far off uncontrollable institution. And so what they initially use was was an institution called the New York Clearinghouse, right? It's a financial institution that sort of clears money from different banks, and millions of dollars would pass through it every day.

Nick Capodice:
And at the end of the day, they'd publish how much money went through that clearinghouse. And the last three digits of that number were the winning numbers.

Matthew Vaz:
So we could say today 12 million four hundred and eighty three thousand two hundred and twenty one dollars and sixty nine cents pass through here. And the last three digits before the decimal point were two one two two one, right? And that's a number that no man on the street can manipulate or control it. And it is in essence, almost a random number, right?

Nick Capodice:
You'd make your bet with a numbers runner and this is important. You would pick what your numbers were. People chose lucky birthdays, favorite numbers, holidays, whatever, the odds are one in a thousand that you'll win, and the payout was usually 600 bucks for a dollar bet.

Matthew Vaz:
And it becomes a very, very popular form of gambling first in the Black communities of New York. It displaces that older policy game. People basically abandoned playing that because this game is simpler. The payouts are better and it in effect cannot be rigged, right? It cannot be manipulated. And it becomes popular in most of the major cities along the East Coast, Philadelphia, Washington, D.C., Baltimore. And eventually it spreads well beyond the Black communities of those cities and becomes popular among working class whites. Organized crime figures start to muscle in on the game, particularly after prohibition is over, and there's a kind of violent contestation over who's going to control the game. Is it going to be the mafia or is it going to be Black gamblers that had set up this game initially?

Hannah McCarthy:
Well, this I remember from our episode on Mapp v Ohio Right that somebody bombed Don King's home in Cleveland, Ohio, over a fight to control the numbers racket. But I also remember and we talked about this when we were making that episode that the numbers were about community institutions.

Nick Capodice:
Right, right. The people who ran the numbers, they lived there in those neighborhoods, in that community, and the payout, it wasn't a million dollars and it wasn't two dollars, it was six hundred dollars. And the reason I bring that up is Matthew asked me if I'd ever won two bucks on a scratch ticket, which I have

Matthew Vaz:
If you win that four dollars or that $2 prize. What are you going to do with it?

Nick Capodice:
What are you going to do with it?

Hannah McCarthy:
Probably buy more scratch tickets.

Matthew Vaz:
You're going to buy two more. Exactly right. It's like, Oh, nice, I want give me two more of those, right? But if you're playing with old fashioned numbers game and you win six hundred dollars, what are you going to do with that, right? Something, you know, something better. It's something... You're going to catch up on your bills or whatever it is. You know, it's going to move you along a little bit.

Hannah McCarthy:
I imagine that state legislatures which had this history of using gambling to fund projects, we're taking a good hard look at the numbers, games and asking, how can we get some of that?

Nick Capodice:
How can we get some of that, as Kevin would say, how can we get some of that sugar, which they certainly did, but it wasn't going to be an easy road to that pot of municipal gold. We'll get to the legalization of lottery and where the money goes right after the break.

Hannah McCarthy:
But first, if you want a lotto fun extra civics tidbits in your life, subscribe to our newsletter Extra credit. It's every two weeks, and since it's free, it's not even a gamble. Just click the newsletter button at our website civics101podcast.org.

Hannah McCarthy:
We're back and you're listening to civics one on one now, just a quick reminder that our show depends on the generosity of our listeners to keep running and instead of us having a lottery, we just ask that you donate whatever you feel is fair at civics101podcast.org. The odds are not the same that you will win a mega million jackpot, but they're almost the same. And speaking of a mega million jackpot, Nick, how did we get from a federally banned activity to a pastime in which millions of Americans participate?

Nick Capodice:
The shift to a legal lotto starts in nineteen sixty three in a state famously opposed to taxes, none other than the home state of Civics 101, New Hampshire. Here's Kevin Flynn again.

Kevin Flynn:
Well, in New Hampshire, there was a there was a state representative named Larry Pickett who thought that a great way to raise money for state causes was would be to hold a sweepstakes, and it was finally signed into law by Governor John King. And this immediately set off a whole bunch of reaction in the state and across the country.

Hannah McCarthy:
Wait, so the lottery was illegal federally?

Nick Capodice:
Yes, it was.

Hannah McCarthy:
So is this kind of akin to states across the country decriminalizing marijuana, even though at the federal level it's still a Schedule one drug and totally illegal?

Nick Capodice:
Hannah, that analogy to marijuana legalization is more apt than you can possibly imagine because and I'm going to try to make this quick You and I can't really understand just how scandalous it was for a state to legalize the lottery in the U.S., the FBI was involved. It was considered a national moral outrage. And to jump to the present, the path towards marijuana legalization, from the blatant racial disparity of who got arrested for it to the national outcry against it and states discovering how much money can be made from it, taxing it to it, becoming legal in many states to purchase. But in some of them, you've got to pay for it in cash. Every bit of it is note for note out of the lottery legalization playbook. But back to New Hampshire in the nineteen sixties, one way they got around it is that it wasn't a lottery per say. Even though we're going to call it one, it was technically a sweepstakes.

archival:
The race is incidental to the sweeps excitement that has raised two and a half million dollars for New Hampshire's educational system.

Nick Capodice:
So instead of drawing a number on a ping pong ball and winning some money, a sweepstakes ticket holder was paired to one of two hundred and thirty two racehorses. And if that horse was picked to run in a race and then that horse won that race, you won a bunch of cash. And people across the country freaked out.

Kevin Flynn:
Well, the lottery ended up being a big scandal, and almost every newspaper in the state was against it. They had like some really great quotes, and this is where I hope the folks from Civics 101 get a montage together of people reading these headlines like old timey newspaper people like now. Be a good time to start playing that music, Nick. I'm just I'm just like setting you up to spike this ball. Ok?

archival:
As either New Hampshire Uncle Sam so hard up that this shabby dodge is the only way out. What's happening in New Hampshire at the hands of politicians shouldn't happen to a dog. Scandalous experiment. Moral bankruptcy.

Nick Capodice:
There was one quote that was in favor of the lottery in New Hampshire. It's by the newspaper publisher Bill Loeb, who said, "No one has to go to the track and bet, no one has to smoke tobacco. No one has to drink. But how do those who oppose the sweepstakes propose to raise the money, either a sales tax or property tax or some other kind of levy that people will have to pay?" And New Hampshire did it. They sold lottery tickets, and people from all over the country came to New Hampshire to buy them.

Hannah McCarthy:
That's how much the country wanted a lottery.

Nick Capodice:
But the thing was it was against the law to take lottery tickets across state lines back to where they lived. So New Hampshire found a workaround.

Kevin Flynn:
So what New Hampshire did in order to sort of get around the Gambling Paraphernalia Act was that the tickets would stay in New Hampshire. People would get a carbon copy like a receipt. They called it an acknowledgment, so it would prove to somebody that, yes, they had purchased the ticket and you couldn't have put somebody else's name. You couldn't resell the ticket. But the actual ticket, the one that would be drawn, would stay in New Hampshire.

Nick Capodice:
And this actually ended up in the United States Supreme Court in a case called U.S. V. Fabrizio. Anthony L. Fabrizio, the appellee, knowingly carried in interstate commerce from Keene, New Hampshire, to Elmira, New York. Seventy five acknowledgments of purchase on a sweepstakes race of the state of New Hampshire, and he lost that Supreme Court appeal.

Kevin Flynn:
I found out later on that it was common knowledge that there was at least one U.S. Supreme Court justice who had purchased a sweepstakes ticket at the time that they heard the case.

Hannah McCarthy:
Seriously.

Nick Capodice:
Yeah.

Hannah McCarthy:
Do you know which one.

Nick Capodice:
I can't say, Hannah.

Kevin Flynn:
I can't tell you which one. I can't tell you which one, but you'll know him when you see him. If you're picking up what I'm putting down.

Hannah McCarthy:
All right, so once New Hampshire has the ball rolling, what is the next state to follow suit?

Nick Capodice:
The New Hampshire sweepstakes was a bit of a strange one-off. The Empire State came next. Here's Matthew Vaz again.

Matthew Vaz:
But in New York, which is the second lottery and becomes much more of a kind of national template, right? Because when New York does something, the rest of the country pays close attention. That that debate in New York, which happens over the course of nineteen sixty five and sixty six, is much more centered around the problem of illegal gambling.

Nick Capodice:
New York legalizes the lottery in nineteen sixty six and then a bunch of other states do the same, but they can't compete with these illegal numbers games that we talked about earlier. And one of the reasons is is that unlike the numbers game in the lottery, you couldn't pick your own numbers. That was it. You couldn't pick birthdays or holidays or your kids age.

Hannah McCarthy:
We're such a superstitious bunch.

Matthew Vaz:
Essentially, these state lotteries don't rest until they figure out how to get to that numbers clientele, and it takes them a number of years as New Jersey that first figures out the technology, right? Like, how do we set up something that will allow people a network that allows people to guess the number rather than just receive the number? That first New Jersey game was called pick-it

archival:
until then. This is Dick LaRosa saying Thanks for watching and playing Pickit

Nick Capodice:
And Matthew told me the lottery was a pretty sleepy thing for 13 years until they indeed did figure out a way to let people pick numbers after which sales quadrupled in four years. And here we are.

archival:
In the United States, tens of millions of people are clinging to a little piece of paper and a lot of hope. That's because tonight someone could become hundreds of millions of dollars richer.

Hannah McCarthy:
Are there still local numbers games, albeit underground in cities?

Nick Capodice:
There are not much, honestly. And part of that is due to the astronomical payout of the big lotteries. How can six hundred dollars compared to 600 million?

Hannah McCarthy:
Ok, I've always wondered this, and I'm going to guess that the answer is fairly straightforward, but in terms of those massive payouts? How is that possible? Like, how much money does the lottery itself actually make? Because you have to staff this operation, right?

Nick Capodice:
I have some stats from 2015. So first, as a comparison, corporate income taxes in 2015 generated forty nine billion dollars. State lotteries generated $67 billion dollars.

Hannah McCarthy:
And did all of that money go back into the states?

Nick Capodice:
No, not all of it. And this answers your question. Forty two billion went into prizes. That's how they have such big jackpots. Three billion went to advertising and administration of the lottery, leaving about $21 billion that went back into the states.

Hannah McCarthy:
Now where does that money go? I've heard that the lottery supports, for example, education in a lot of states.

Nick Capodice:
Did you ever see The Simpsons where there's like, it's like a massive lottery?

archival:
One big winner. Our state school system, which gets fully half the profits from the lottery. Just think what we can buy with that money. History books that know how the Korean War came out. Math books that don't have that basic 6 crap in them.

Matthew Vaz:
Oh yeah, it can be argued both ways, right? And you know, I would say to you that that it varies state to state. Ok. Different states have a different arrangement for where that money goes in New York. There is a fallacy that it goes to education. Well, only in the most only and the most sort of symbolic sense does it go to education. Which is to say the state education budget in New York is determined by a formula. Right?

Nick Capodice:
As a hypothetical Hannah with wildly inaccurate numbers, let's say New York set its education budget at a million dollars and the lottery has a great year and has $750000 left over.

Matthew Vaz:
That doesn't mean that the state is now going to give one million seven hundred and fifty thousand dollars towards education. The state is still just going to give a million dollars to education, but the lottery had a big, huge year, and that means that if we take now, we can take that seven hundred fifty thousand dollars that came in for the lottery and we're moving from education and just spend it elsewhere in the budget, right? The phrasing is it's a substitute, not a supplement

Kevin Flynn:
In nineteen sixty four. New Hampshire made five point seven million dollars, selling three dollar sweepstakes tickets. Right before the sweepstakes, New Hampshire was the forty fifth state as far as money that the state put towards education. And then, after the sweepstakes, New Hampshire was forty fifth among 50 states as to what it put towards local education.

Matthew Vaz:
Furthermore, once something becomes a kind of structural element of the budget, then it cannot be reduced, right? The only way to reduce it is to cut the good itself, the schools or the hospitals or whatever it's supporting, which nobody wants right or to continue to support schools and hospitals where there's only one way to do that and that is taxes, right? And you see how literally impossible it is. Raising taxes is is a blood sport in American politics, so you are in effect, committing yourself.

Hannah McCarthy:
I know the odds of winning a big jackpot are slim, but just for curiosity's sake, how slim are we talking? How far am I from becoming a multibillionaire?

Nick Capodice:
There was a Big Mega Millions jackpot in Florida in January of twenty twenty one. It was $750 million. The odds of winning it are one in three hundred and two million. Statistically, you are ten times more likely to become the president of the United States than that. But that sum, that number, that staggering sum, you can't ignore that kind of a payout.

Matthew Vaz:
I'm drawn in by the magnetism of this vast, obscene sum of money that has attracted me to this game. And so I'll play my dollar right. And lottery executives used to use the joke is like most, most players think, there's really the odds are 50 50. Either I win or I don't write, you know? You know, and in some ways, that is a kind of true feeling of, Hey, let me try, you know, either I win or I don't write. And you know it, it speaks to a kind of mentality for how we organize our society. Like, are we all just sort of slowly kind of taking our turn, winning a modest sum of money? Or are we willing to sort of assume that we're never going to win on the infinitesimal chance that if we do, we're going to be hyper rich?

Nick Capodice:
There is an expression that lotteries are quote a tax on the poor, and I don't want to go too much into that expression, but I want to make two points related to it. First, yes, Americans and lower income brackets spend more money on lottery tickets. But second, these games are marketed towards people with less money. The ads for lotteries are not aimed at wealthy Americans, and their slogans are things like New York Lotto. All you need is a dollar and a dream. A survey from 2006 found that one in three Americans who make less than twenty five thousand a year think the lottery represents the most practical way for them to accumulate significant savings.

Matthew Vaz:
You know, it speaks to like our ideas about distribution of of of wealth and inequality. It's like, Look, I'd rather have. I'll skip having a decent chance of winning a modest sum in favor of having an infinitesimally small chance of having a grossly outrageously large sum of know six hundred and seventy million dollars, right? And it tracks very closely with the with the time period of like where inequality becomes a disaster in American life since the late nineteen seventies.

Hannah McCarthy:
That fantasy that you won't win enough money to just pay off your student loans or put a down payment on a car, but you'll win enough to buy an island and a helicopter to get you to that island and all of that because you spent a dollar on a lottery ticket. I mean, nonexistent odds are not. That is a tempting dream.

Nick Capodice:
And back to the civics part, for state budgets, this influx of cash from people buying these lottery chances, these fantasies. It is a dream come true. You know what, if I could just add one more tidbit that I find fascinating? I'd forgotten completely about this. The people who win those massive jackpots, they end up having to pay about 37 percent of their winnings back to state and federal government for income tax.

Kevin Flynn:
If you want to say gambling is bad for individuals, can't necessarily argue that, but the people really addicted to lotteries are the states that run them that rely on the revenue. They're the ones who are really addicted to the lottery.

Old Man Warner:
There's always been a lottery.

Nick Capodice:
That's it. Did any of you out there get Kevin's sly hint as to which Supreme Court Justice bought a ticket? Brag at us on Twitter at Civics 101 Pod? I'm going to put the answer in this week's newsletter, which you can subscribe to at civics101podcast.org. Today's episode was produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy:
Thank you. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and NHPR's very own Golden Octopus Music.

Nick Capodice:
Music in this episode by Blue Dot Sessions, Sir Cubworth, Tracky Birthday, ProleteR, Moore and Gardner, Metre, Ari Di Nero, and the Soni Venetum Wind Quintet.

Hannah McCarthy:
Civic's 101 is a production of NHPR New Hampshire Public Radio.

Nick Capodice:
Lottery!

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Transcript

Nick Capodice: And a quick note before this episode on the lottery, which is one of those things you think isn't really a civics topic, but then it ends up being very much a civics topic. Uh, I want to jump in and share with you all that we have done over two hundred and fifty episodes of Civics 101. And it feels like we haven't even scratched the surface. There are dozens of departments Supreme Court decisions, cabinet positions, legislative powers that need to be explored. [00:00:30] This show was created to address your questions about our government, how it works, but we need listener support to answer those questions. Make your year end tax deductible donation at Civics101podcast.org and you'll receive a very snazzy civic sticker, as well as our eternal thanks. Help us at Civics 101 Demonstrate and HPR that a show like ours with a cause like ours is a worthy investment. All right, onto the episode.

OPEN: There's [00:01:00] always been a lottery.Do we agree with old man Warner that The lottery should be continued simply because there's always been one? As Oklahomans try to strike it rich? They also invest in Oklahoma's future? Or do we object with Tessie that the whole thing just isn't fair, Isn't right? And so people who buy tickets thinking, Hey, I'm helping education, do you think they're really doing as much as they think they are? They they believe they are, but they're absolutely not benefiting education. Whatever [00:01:30] else Shirley Jackson has done in her story, she has certainly given us a memorable image…

Hannah McCarthy: We're not talking about that lottery, are we, Nick?

Nick Capodice: Well, as every English teacher in America knows Hannah. The morning of June 27 was clear and sunny with the fresh warmth of a full summer day.

Hannah McCarthy: All right, I'm going to put the kibosh on Shirley Jackson from the outset, although I will say that short story is all about hyper local government. But I do want to ask you with all seriousness, what does buying [00:02:00] a ticket and maybe winning millions of dollars have to do with U.S. governmental systems? Why are we doing a civics episode on the lottery?

Kevin Flynn: Because I'm an awesome guy. No, that isn't the right answer.

Hannah McCarthy: Wait is that Kevin?

Nick Capodice: It is. I'll let him introduce himself here.

Kevin Flynn: My name's Kevin Flynn. I'm a former journalist and author, and I wrote the book American Sweepstakes; How One Small State Bucked the Church, The Feds and the Mob to usher in the lottery [00:02:30] age.

Nick Capodice: So we've got to do a whole mess of full disclosure here. Kevin Flynn is indeed a writer, podcast host, TV and radio journalist

Hannah McCarthy: And dear friend.

Nick Capodice: And.

Hannah McCarthy: And he's married to our executive producer, Rebecca Lavoie.

Nick Capodice: He sure is. But we were in a civics one one production meeting, talking about the lottery and its intersection with the government, and we learned that Kevin had written a book on it. And so we had to have him on the show.

Hannah McCarthy: All right now, we got that out of the way. Did he give a reason on why civics [00:03:00] listeners should be interested in the lottery?

Kevin Flynn: It's a great question. The lottery is just a big part of state government these days.

Hannah McCarthy: How big?

Nick Capodice: Big, real big. You're listening to Civics 101. I'm Nick Capodice,

Hannah McCarthy: I'm Hannah McCarthy

Nick Capodice: and today we are talking about the U.S. lottery. How it started, ended, started again. How much money it makes and where that money goes.

Hannah McCarthy: Now, Kevin said lottery is a big part of state government, [00:03:30] but does every state in the U.S. have one?

Nick Capodice: Almost almost. Mississippi was the most recent state to adopt a lottery. They started selling tickets in 2020.

archival: Scratch off tickets for the very first time, And Mississippians can take a shot at winning without Having to leave the state.

Nick Capodice: Five states do not have a lottery. Alaska, Hawaii, Utah, Alabama and Nevada.

Hannah McCarthy: So when did this all start? Like, what was the first lottery?

Kevin Flynn: Oh, we have always had lotteries [00:04:00] in civilization, right? Lotteries go back to the Bible, right? In the Old Testament. It was, you know, casting lots was the way that a lot of times the the will of God was divined. King Saul was selected because of a drawing of lots. Do you remember when the apostles were down a man where they were down to 11 guys for some reason?

Hannah McCarthy: Down a man, [00:04:30] as in after Judas Iscariot died?

Nick Capodice: Yeah.

Nick Capodice: There were two candidates to become the new Twelfth Apostle, and they cast lots, it means they threw sticks of different lengths on the ground to see who it would be, and it ended up being Mathias. And OK. That's more Bible than civics 101 has ever had. And maybe it's just so I could use clips from Jesus Christ Superstar.

You want me to do it!

Nick Capodice: But let's move on.

Kevin Flynn: The Great Wall of China was [00:05:00] financed some repairs that were financed by the Chinese for an early version of Keno. I think they called it the the white pigeon game.

Nick Capodice: The roads to Rome, Hannah, were paid for by raffles. And to finally wend our way towards America. The Jamestown settlement in Virginia, the first permanent English settlement in the Americas, was financed with a lottery.

Hannah McCarthy: You're kidding me

Kevin Flynn: So you could say America really is, you know, the the child of a lottery. Part of the Continental [00:05:30] Army was financed through a lottery. George Washington wanted to raise $10 million to pay for the Revolutionary War in the Continental Army through a lottery. So, you know, it was always it's something that's been around, you know, since since people had money.

Nick Capodice: I want to add, by the way, that lottery in 1776 to help pay for the Revolutionary War failed utterly. They didn't come even close to raising enough money. [00:06:00] Congress printed a hundred thousand tickets, but they only sold around 30000. So to pay for the war, they just printed a bunch of money instead and borrowed a lot from France. But what's important is that it set a precedent for other lotteries in our new country to help pay for infrastructure like roads and bridges.

Hannah McCarthy: All right now, this is where it starts to become a civics conversation, right? Armies, roads and general infrastructure costs usually fall into the purview of government expenses. [00:06:30] So why is a lottery involved at all?

Nick Capodice: A lottery is a way to get money for something when you don't have the power or the political interest to tax people. If you want to build a covered bridge and you don't have the money in your state budget to do it. Having a lottery to build that bridge where the winner gets some of the money from the lottery tickets and the rest goes to building the bridge; that might get you reelected, whereas raising taxes might not. So [00:07:00] from our nation's founding up to the eighteen forties over the whole United States, hundreds and hundreds of lotteries were springing up to pay for stuff. And when you have a lot of lotteries, you start to also get a lot of rigging of lotteries to pick winners.

Kevin Flynn: So it's just, you know, when you deal with a lot of cash like that, you know, sharpies are going to come in and do what they do. That's a lot of sugar. Nick, there's a lot of sugar there. It's funny because, you know, let's go to like the the mid eighteen hundreds. [00:07:30] Lotteries ended up getting kind of a stink on them in in public, not illegal, but in a nation where cockfighting and duels and poker games are considered gentlemanly. It was lotteries that, you know, started to get a bad name, in part because no, no poor person ever died in a duel. Right? That was that was the lotteries ended up democratizing gambling.

Hannah McCarthy: So [00:08:00] rich folks are gambling left and right. But the one form of gambling that working class Americans can participate in gets a bit of stigma.

Nick Capodice: Yeah, and is often the case. In these instances, somebody just went a little too far. The biggest lottery in America in the 19th century was called the Louisiana Lottery Company, and it was huge. It was nicknamed the Golden Octopus. Its hands were everywhere. People all over [00:08:30] the country played it. Over half of the mail in New Orleans was lottery tickets. And what the company did is they paid 40 grand each year to a charity hospital, and they got to keep the rest of their profits tax free. There was a staggering amount of corruption. Bribes got paid to reps in state and federal legislatures all over the country. So in response, the federal government passed a bill banning the sale of lottery tickets in the mail. So the Louisiana lottery company moved to Honduras. And finally, in eighteen ninety five, all [00:09:00] lotteries in the United States were banned. And that's it.

Hannah McCarthy: This is making me think of prohibition. Ok, right? You've got something that's legal. Highly profitable. Very popular, very prevalent. And then it's made illegal. And I would say that just with booze, but with a lot of things in history, what history has shown us is that when you then make it illegal, it rarely, if ever actually goes away.

Nick Capodice: Naturally.

Hannah McCarthy: And I know that [00:09:30] the lottery didn't go away because I grew up in Massachusetts, and I know that I can walk outside and I can buy a ticket. So how did we get from the banning of the golden octopus to lotteries being run in most states?

Nick Capodice: We get there via something called the numbers.

Matthew Vaz: OK. You know, once upon a time, it's not a good way to start, right?

Nick Capodice: I counter that once upon a time is always a good way to start. And this is Matthew [00:10:00] Vaz. He's a professor at City College of New York, and he wrote a fascinating book called Running the Numbers, Race Police and the History of Urban Gambling. So once upon a time, there was a popular illegal game called policy,

Matthew Vaz: And it involved betting on several two digit numbers between one and seventy two. The odds are a little complicated, but it offered a way to make a small bet on a number [00:10:30] of guess and come out with a decent amount of money. If you win, you could bet a dollar, and maybe in some situations you could win two hundred dollars. But the winning numbers were generated by the spinning of a wheel, so to speak, and maybe sort of draw out almost like a pulling a ping pong ball out of a barrel kind of a thing.

Nick Capodice: But the problem with policy was that like all lotteries beforehand, they could be rigged. The person picking out the ping pong ball could cheat and grab one with their friend's number on it. And they did. But [00:11:00] a new system was born in Harlem in the 1920s,

Matthew Vaz: And most people believe that it was a man named Caspar Holstein, who was an immigrant to New York from the West Indies, developed a new method for arriving at winning numbers. He came up with a game that is typically called the numbers that involves placing a bet or on a guess of what the last three digits before the decimal point will be in [00:11:30] a massive number generated by some far off uncontrollable institution. And so what they initially use was was an institution called the New York Clearinghouse, right? It's a financial institution that sort of clears money from different banks, and millions of dollars would pass through it every day.

Nick Capodice: And at the end of the day, they'd publish how much money went through that clearinghouse. And the last three digits of that number were the winning numbers.

Matthew Vaz: So we could say today 12 million four hundred and eighty three thousand two hundred and twenty one dollars and sixty nine cents [00:12:00] pass through here. And the last three digits before the decimal point were two one two two one, right? And that's a number that no man on the street can manipulate or control it. And it is in essence, almost a random number, right?

Nick Capodice: You'd make your bet with a numbers runner and this is important. You would pick what your numbers were. People chose lucky birthdays, favorite numbers, holidays, whatever, the odds are one in a thousand that you'll win, and the payout was usually 600 bucks for a dollar bet.

Matthew Vaz: And it becomes a very, [00:12:30] very popular form of gambling first in the Black communities of New York. It displaces that older policy game. People basically abandoned playing that because this game is simpler. The payouts are better and it in effect cannot be rigged, right? It cannot be manipulated. And it becomes popular in most of the major cities along the East Coast, Philadelphia, Washington, D.C., Baltimore. And eventually it spreads well beyond the Black communities of those cities and becomes popular among working class whites. Organized [00:13:00] crime figures start to muscle in on the game, particularly after prohibition is over, and there's a kind of violent contestation over who's going to control the game. Is it going to be the mafia or is it going to be Black gamblers that had set up this game initially?

Hannah McCarthy: Well, this I remember from our episode on Mapp v Ohio Right that somebody bombed Don King's home in Cleveland, Ohio, over a fight to control the numbers racket. But I also remember and we talked about this when we were making that episode that the numbers were about community [00:13:30] institutions.

Nick Capodice: Right, right. The people who ran the numbers, they lived there in those neighborhoods, in that community, and the payout, it wasn't a million dollars and it wasn't two dollars, it was six hundred dollars. And the reason I bring that up is Matthew asked me if I'd ever won two bucks on a scratch ticket, which I have

Matthew Vaz: If you win that four dollars or that $2 prize. What are you going to do with it?

Nick Capodice: What are you going to do with it?

Hannah McCarthy: Probably buy more scratch tickets.

Matthew Vaz: You're [00:14:00] going to buy two more. Exactly right. It's like, Oh, nice, I want give me two more of those, right? But if you're playing with old fashioned numbers game and you win six hundred dollars, what are you going to do with that, right? Something, you know, something better. It's something... You're going to catch up on your bills or whatever it is. You know, it's going to move you along a little bit.

Hannah McCarthy: I imagine that state legislatures which had this history of using gambling to fund projects, we're taking a good hard look [00:14:30] at the numbers, games and asking, how can we get some of that?

Nick Capodice: How can we get some of that, as Kevin would say, how can we get some of that sugar, which they certainly did, but it wasn't going to be an easy road to that pot of municipal gold. We'll get to the legalization of lottery and where the money goes right after the break.

Hannah McCarthy: But first, if you want a lotto fun extra civics tidbits in your life, subscribe to our newsletter Extra credit. It's every two weeks, and since it's free, it's not even a gamble. [00:15:00] Just click the newsletter button at our website civics101podcast.org.

Hannah McCarthy: We're back and you're listening to civics one on one now, just a quick reminder that our show depends on the generosity of our listeners to keep running and instead of us having a lottery, we just ask that you donate whatever you feel is fair at civics101podcast.org. The odds are not the same that you will win a mega million jackpot, [00:15:30] but they're almost the same. And speaking of a mega million jackpot, Nick, how did we get from a federally banned activity to a pastime in which millions of Americans participate?

Nick Capodice: The shift to a legal lotto starts in nineteen sixty three in a state famously opposed to taxes, none other than the home state of Civics 101, New Hampshire. Here's Kevin Flynn again.

Kevin Flynn: Well, in New Hampshire, there was [00:16:00] a there was a state representative named Larry Pickett who thought that a great way to raise money for state causes was would be to hold a sweepstakes, and it was finally signed into law by Governor John King. And this immediately set off a whole bunch of reaction in the state and across the country.

Hannah McCarthy: Wait, so the lottery was illegal federally?

Nick Capodice: Yes, it was.

Hannah McCarthy: So is this kind of akin to states [00:16:30] across the country decriminalizing marijuana, even though at the federal level it's still a Schedule one drug and totally illegal?

Nick Capodice: Hannah, that analogy to marijuana legalization is more apt than you can possibly imagine because and I'm going to try to make this quick You and I can't really understand just how scandalous it was for a state to legalize the lottery in the U.S., the FBI was involved. It was considered a national moral outrage. And to jump to the present, the path towards [00:17:00] marijuana legalization, from the blatant racial disparity of who got arrested for it to the national outcry against it and states discovering how much money can be made from it, taxing it to it, becoming legal in many states to purchase. But in some of them, you've got to pay for it in cash. Every bit of it is note for note out of the lottery legalization playbook. But back to New Hampshire in the nineteen sixties, one way they got around it is that it wasn't a lottery per say. Even though we're going to call [00:17:30] it one, it was technically a sweepstakes.

archival: The race is incidental to the sweeps excitement that has raised two and a half million dollars for New Hampshire's educational system.

Nick Capodice: So instead of drawing a number on a ping pong ball and winning some money, a sweepstakes ticket holder was paired to one of two hundred and thirty two racehorses. And if that horse was picked to run in a race and then that horse won that race, you won a bunch of cash. And people across the country [00:18:00] freaked out.

Kevin Flynn: Well, the lottery ended up being a big scandal, and almost every newspaper in the state was against it. They had like some really great quotes, and this is where I hope the folks from Civics 101 get a montage together of people reading these headlines like old timey newspaper people like now. Be a good time to start playing that music, Nick. I'm just I'm just like setting you up to spike this ball. Ok?

archival: As either New Hampshire [00:18:30] Uncle Sam so hard up that this shabby dodge is the only way out. What's happening in New Hampshire at the hands of politicians shouldn't happen to a dog. Scandalous experiment. Moral bankruptcy.

Nick Capodice: There was one quote that was in favor of the lottery in New Hampshire. It's by the newspaper publisher Bill Loeb, who said, "No one has to go to the track and bet, no one has to smoke tobacco. No one has to drink. But how do those who oppose the sweepstakes propose to raise the money, either a sales tax [00:19:00] or property tax or some other kind of levy that people will have to pay?" And New Hampshire did it. They sold lottery tickets, and people from all over the country came to New Hampshire to buy them.

Hannah McCarthy: That's how much the country wanted a lottery.

Nick Capodice: But the thing was it was against the law to take lottery tickets across state lines back to where they lived. So New Hampshire found a workaround.

Kevin Flynn: So what New Hampshire did in order to sort of get around the Gambling Paraphernalia Act was [00:19:30] that the tickets would stay in New Hampshire. People would get a carbon copy like a receipt. They called it an acknowledgment, so it would prove to somebody that, yes, they had purchased the ticket and you couldn't have put somebody else's name. You couldn't resell the ticket. But the actual ticket, the one that would be drawn, would stay in New Hampshire.

Nick Capodice: And this actually ended up in the United States Supreme Court in a case called U.S. V. Fabrizio. Anthony L. Fabrizio, the appellee, knowingly [00:20:00] carried in interstate commerce from Keene, New Hampshire, to Elmira, New York. Seventy five acknowledgments of purchase on a sweepstakes race of the state of New Hampshire, and he lost that Supreme Court appeal.

Kevin Flynn: I found out later on that it was common knowledge that there was at least one U.S. Supreme Court justice who had purchased a sweepstakes ticket at the time that they heard the case.

Hannah McCarthy: Seriously.

Nick Capodice: Yeah.

Hannah McCarthy: Do you know which one.

Nick Capodice: I can't say, Hannah.

Kevin Flynn: I can't tell [00:20:30] you which one. I can't tell you which one, but you'll know him when you see him. If you're picking up what I'm putting down.

Hannah McCarthy: All right, so once New Hampshire has the ball rolling, what is the next state to follow suit?

Nick Capodice: The New Hampshire sweepstakes was a bit of a strange one-off. The Empire State came next. Here's Matthew Vaz again.

Matthew Vaz: But in New York, which is the second lottery and becomes much more of a kind of national template, right? Because when New York does something, the rest of the country pays close attention. That that debate [00:21:00] in New York, which happens over the course of nineteen sixty five and sixty six, is much more centered around the problem of illegal gambling.

Nick Capodice: New York legalizes the lottery in nineteen sixty six and then a bunch of other states do the same, but they can't compete with these illegal numbers games that we talked about earlier. And one of the reasons is is that unlike the numbers game in the lottery, you couldn't pick your own numbers. That was it. You couldn't [00:21:30] pick birthdays or holidays or your kids age.

Hannah McCarthy: We're such a superstitious bunch.

Matthew Vaz: Essentially, these state lotteries don't rest until they figure out how to get to that numbers clientele, and it takes them a number of years as New Jersey that first figures out the technology, right? Like, how do we set up something that will allow people a network that allows people to guess the number rather than just receive the number? That first New Jersey game was called pick-it

archival: until then. This is Dick LaRosa saying Thanks for watching [00:22:00] and playing Pickit

Nick Capodice: And Matthew told me the lottery was a pretty sleepy thing for 13 years until they indeed did figure out a way to let people pick numbers after which sales quadrupled in four years. And here we are.

archival: In the United States, tens of millions of people are clinging to a little piece of paper and a lot of hope. That's because tonight someone could become hundreds of millions [00:22:30] of dollars richer.

Hannah McCarthy: Are there still local numbers games, albeit underground in cities?

Nick Capodice: There are not much, honestly. And part of that is due to the astronomical payout of the big lotteries. How can six hundred dollars compared to 600 million?

Hannah McCarthy: Ok, I've always wondered this, and I'm going to guess that the answer is fairly straightforward, but in terms of those massive payouts? How is that possible? Like, how much money does the lottery itself actually make? Because you have to staff this operation, [00:23:00] right?

Nick Capodice: I have some stats from 2015. So first, as a comparison, corporate income taxes in 2015 generated forty nine billion dollars. State lotteries generated $67 billion dollars.

Hannah McCarthy: And did all of that money go back into the states?

Nick Capodice: No, not all of it. And this answers your question. Forty two billion went into prizes. That's how they have such big jackpots. Three billion went to advertising and administration of the lottery, leaving about $21 [00:23:30] billion that went back into the states.

Hannah McCarthy: Now where does that money go? I've heard that the lottery supports, for example, education in a lot of states.

Nick Capodice: Did you ever see The Simpsons where there's like, it's like a massive lottery?

archival: One big winner. Our state school system, which gets fully half the profits from the lottery. Just think what we can buy with that money. History books that know how the Korean War came out. Math books that don't have that basic 6 crap in them.

Matthew Vaz: Oh yeah, it can be argued both ways, right? And you know, I would say to you that that it [00:24:00] varies state to state. Ok. Different states have a different arrangement for where that money goes in New York. There is a fallacy that it goes to education. Well, only in the most only and the most sort of symbolic sense does it go to education. Which is to say the state education budget in New York is determined by a formula. Right?

Nick Capodice: As a hypothetical Hannah with wildly inaccurate numbers, let's say New York set its education [00:24:30] budget at a million dollars and the lottery has a great year and has $750000 left over.

Matthew Vaz: That doesn't mean that the state is now going to give one million seven hundred and fifty thousand dollars towards education. The state is still just going to give a million dollars to education, but the lottery had a big, huge year, and that means that if we take now, we can take that seven hundred fifty thousand dollars that came in for the lottery and we're moving from education and just spend it elsewhere in the budget, right? [00:25:00] The phrasing is it's a substitute, not a supplement

Kevin Flynn: In nineteen sixty four. New Hampshire made five point seven million dollars, selling three dollar sweepstakes tickets. Right before the sweepstakes, New Hampshire was the forty fifth state as far as money that the state put towards education. And then, after the sweepstakes, New Hampshire was forty fifth among 50 states as to what it put towards local education.

Matthew Vaz: Furthermore, [00:25:30] once something becomes a kind of structural element of the budget, then it cannot be reduced, right? The only way to reduce it is to cut the good itself, the schools or the hospitals or whatever it's supporting, which nobody wants right or to continue to support schools and hospitals where there's only one way to do that and that is taxes, right? And you see how literally impossible it is. Raising taxes is is a [00:26:00] blood sport in American politics, so you are in effect, committing yourself.

Hannah McCarthy: I know the odds of winning a big jackpot are slim, but just for curiosity's sake, how slim are we talking? How far am I from becoming a multibillionaire?

Nick Capodice: There was a Big Mega Millions jackpot in Florida in January of twenty twenty one. It was $750 million. The odds of winning it are one in three hundred and two million. Statistically, you are ten times more likely to [00:26:30] become the president of the United States than that. But that sum, that number, that staggering sum, you can't ignore that kind of a payout.

Matthew Vaz: I'm drawn in by the magnetism of this vast, obscene sum of money that has attracted me to this game. And so I'll play my dollar right. And lottery executives used to use the joke is like most, most players think, there's really the odds are 50 50. Either I win or [00:27:00] I don't write, you know? You know, and in some ways, that is a kind of true feeling of, Hey, let me try, you know, either I win or I don't write. And you know it, it speaks to a kind of mentality for how we organize our society. Like, are we all just sort of slowly kind of taking our turn, winning a modest sum of money? Or are we willing to sort of assume that we're never going to win on the infinitesimal chance that if we do, we're going to be hyper rich? [00:27:30]

Nick Capodice: There is an expression that lotteries are quote a tax on the poor, and I don't want to go too much into that expression, but I want to make two points related to it. First, yes, Americans and lower income brackets spend more money on lottery tickets. But second, these games are marketed towards people with less money. The ads for lotteries are not aimed at wealthy Americans, and their slogans are things like New [00:28:00] York Lotto. All you need is a dollar and a dream. A survey from 2006 found that one in three Americans who make less than twenty five thousand a year think the lottery represents the most practical way for them to accumulate significant savings.

Matthew Vaz: You know, it speaks to like our ideas about distribution of of of wealth and inequality. It's like, Look, I'd rather have. I'll skip having a decent chance of winning a modest sum in favor of having an [00:28:30] infinitesimally small chance of having a grossly outrageously large sum of know six hundred and seventy million dollars, right? And it tracks very closely with the with the time period of like where inequality becomes a disaster in American life since the late nineteen seventies.

Hannah McCarthy: That fantasy that you won't win enough money to just pay off your student loans or put a down payment on a car, but you'll win enough to buy an island and a [00:29:00] helicopter to get you to that island and all of that because you spent a dollar on a lottery ticket. I mean, nonexistent odds are not. That is a tempting dream.

Nick Capodice: And back to the civics part, for state budgets, this influx of cash from people buying these lottery chances, these fantasies. It is a dream come true. You know what, if I could just add one more tidbit that I find fascinating? I'd forgotten completely about this. The people who win those massive [00:29:30] jackpots, they end up having to pay about 37 percent of their winnings back to state and federal government for income tax.

Kevin Flynn: If you want to say gambling is bad for individuals, can't necessarily argue that, but the people really addicted to lotteries are the states that run them that rely on the revenue. They're the ones who are really addicted to the lottery.

[00:30:00]

Old Man Warner: There's always been a lottery.

Nick Capodice: That's it. Did any of you out there get Kevin's sly hint as to which Supreme Court Justice bought a ticket? Brag at us on Twitter at Civics 101 Pod? I'm going to put the answer in this week's newsletter, which you can subscribe to at civics101podcast.org. [00:30:30] Today's episode was produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy: Thank you. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and NHPR's very own Golden Octopus Music.

Nick Capodice: Music in this episode by Blue Dot Sessions, Sir Cubworth, Tracky Birthday, ProleteR, Moore and Gardner, Metre, Ari Di Nero, and the Soni Venetum Wind Quintet.

Hannah McCarthy: Civic's 101 is a production of NHPR New Hampshire Public Radio.

Nick Capodice: Lottery!


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Federal Holidays

Of the hundreds of reasons to celebrate and reflect in this country, the United States government has made only twelve of them official federal holidays. What does that actually mean, how does it happen and who gets the day off? Our guides to the holidays are Jeff Bensch, author of History of American Holidays and JerriAnne Boggis, Executive Director of the Black Heritage Trail of New Hampshire.

 

Transcript

Nick Capodice: Where are you, Taylor? Oh, terrible giants. Admit someone wants to join this call. Taylor Quimby. Hello.

 

Hey. Everybody, this is my friend, Taylor Taylor Quimby. Can you tell everyone what you do with NHPR?

 

Taylor Quimby: I'm the senior producer for outside/in our sort of

 

Taylor Quimby: Show about the outdoors.

 

Nick Capodice: So I just got a tweet outside in radio, [00:00:30] just tweeted, We're one of the staple podcasts. In fact, we're the podcast sorry @Civics101pod of Nhpr. Did you write that tweet?

 

Taylor Quimby: Uh huh..

 

Nick Capodice: Oh, Taylor,

 

Taylor Quimby: What.

 

Taylor Quimby: Don't tell me that you are a You aren't a little competitive, Mr. Nick Capodice.

 

Nick Capodice: Ok, fair enough. Maybe I'm one of the most competitive people in the world. I do know our higher ups are trying to foster some healthy competition between the two of us. And [00:01:00] I will rise to that challenge. But I do want to say this outside in is a tremendous show that is worthy of your support. So, yes. Go to Civics101podcast.org. Click Donate. We'll send you a snazzy sticker to put on your laptop or your water bottle, but do listen to outside end. You can do that it outside and radio talk or you know what they say in the business.

 

Taylor Quimby: What do we say.

 

Nick Capodice: Wherever you get your podcasts.

 

Taylor Quimby: Oh yeah, yeah. I get my podcast by mail.

 

Hannah McCarthy: Nick, [00:01:30] you know, when you're a journalist, that tends to mean spending every morning clicking through about a dozen or so press releases just to clean out your

 

Nick Capodice: Inbox, yeah, there's a guy who was an extra in Pirates of the Caribbean who I get an email about, like once a month, who's got got an opinion to share about something.

 

Hannah McCarthy: I feel like you should interview him.

 

Nick Capodice: I Should.

 

Hannah McCarthy: You just consider it and at least a few times a month, it's something like we hope you're planning to cover a National Diatomaceous Earth Day or National Clean Out Your Virtual Desktop Day.

 

Nick Capodice: Last week, I [00:02:00] got one that was like, Hey, we know, you know, it's National Peppermint Bark Day.

 

Hannah McCarthy: Everybody knows.

 

Nick Capodice: Here's what you should be doing to cover it, and if we have these experts to talk about it, if you're interested.

 

Hannah McCarthy: And I'm always like, who came down from on high and decided that it was National Bubble Wrap Appreciation Day.

 

Nick Capodice: I'm going to blame big bubble wrap for that one. Bunch of bubble wrap moguls sitting on their bubble wrap, thrones popping their product.

 

Hannah McCarthy: I have looked into it. Some of these micro holidays, a term that I stole [00:02:30] from Atlantic writer Megan Garber, are manufactured by industries to sell things. You're right. Now some are, to my mind, legitimate reminders that draw awareness to illness or social problems or important events. I'm cool with that, and some are just nonsense that has made its way onto the internet like National Walk Around Things Day.

 

Nick Capodice: Is that real?

 

Hannah McCarthy: Yeah. Well, I mean, what do you mean? Is it real? None of this is real, and I can only assume the point [00:03:00] of National Walk Around Things Day is to celebrate the act of walking around things.

 

Nick Capodice: I had no idea you were so passionate about this.

 

Hannah McCarthy: I think it's the arbitrariness. It's not grounded in anything. Or maybe the excuse for selling stuff also really bothers me. Or maybe Nick, maybe five years of National French Dip Day press releases finally broke me.

 

Nick Capodice: You're going to forgive me, Hannah. But aren't all holidays made up? I mean, somebody at some point says, [00:03:30] this is the special day. Everybody take your kid to the doctor in a red wheelbarrow and eat some plums because it's William Carlos Williams Day.

 

Hannah McCarthy: You wait, you'll get a press release for that tomorrow. But I take your point. Yes, all holidays have to start somewhere. But some holidays really go somewhere. There are holidays that are far more significant, far more real, if you will. So today, to cleanse the palate, Nick, we are going to talk about the holidays [00:04:00] that rise all the way up to the powers that be, who proclaim them to be real, who make them official. This is Civics 101. I'm Hannah McCarthy.

 

Nick Capodice: I'm Nick Capodice,

 

Hannah McCarthy: And today we are covering the 12 count them only 12 federal holidays on the United States calendar.

 

Nick Capodice: There's only 12.

 

Hannah McCarthy: Only 12.

 

Hannah McCarthy: And this is the how and the why of becoming official.

 

Nick Capodice: Right, [00:04:30] and just to start, I want to clarify, calling something a national holiday does not make it a federal holiday.

 

Hannah McCarthy: Correct. In actual fact, the United States does not have national holidays the way that some other countries do.

 

Nick Capodice: Well, what do you mean?

 

Hannah McCarthy: Well, you can't have a national holiday in the United States because Congress does not have the constitutional authority to force the 50 states to observe a holiday. [00:05:00]

 

Jeff Bensch: It only applies to federal employees.

 

Hannah McCarthy: This is Jeff Bensch, the author of History of American Holidays

 

Jeff Bensch: And in the early days and only applied to federal employees in Washington, D.C., shortly thereafter applied to all federal employees. And then the banks usually take the day off.

 

Nick Capodice: But this is something I've always wondered Is a bank holiday the same thing as a federal holiday? Like, do banks somehow fall within the federal employee world because they're regulated by the Federal Reserve?

 

Hannah McCarthy: That is a great question. No [00:05:30] banks do not have to close on a federal holiday, but they usually do because they tend to follow the U.S. Federal Reserve calendar. Basically, it's hard to do business when the thing that regulates You takes the day off.

 

Nick Capodice: It seems like we all tend to follow that calendar, though. Like every year, we get a list of paid holidays from New Hampshire Public Radio. And I'm pretty sure it adds up to about 12.

 

Jeff Bensch: Generally, once the federal government declares a holiday, then the states will tend to ratify it afterwards.

 

Hannah McCarthy: A [00:06:00] state holiday is a day made official by state legislatures, and even on these days, with some exceptions from Massachusetts and Rhode Island, private employers are not required to give a paid day off. Sometimes, even a state employer doesn't have to pay a state employee during that day off.

 

Nick Capodice: I feel like this is another tried and true example of how does the civics one on one topic work? And the answer is federalism.

 

Hannah McCarthy: Yeah. Per usual, every state can do it differently.

 

Archival: It's a state holiday today, meaning most [00:06:30] government offices will be closed. It's all in remembrance of the Bennington battle...

 

Archival: The state offices in both Alabama and Mississippi are

 

Archival: Closed today for Confederate Memorial Day and for our state. It is one of three. Nevada Day is the best because everybody comes together. Everybody enjoys themselves.

 

Archival: We all have a holiday in Rhode Island and only

 

Archival: In Rhode Island. It's Victory Day, a state holiday that marks the end of World War Two...

 

Jeff Bensch: Well, a couple of holidays, you know, states would resist it after the federal  [00:07:00]throughout history, you know, like Memorial Day, for one, because it started after the Civil War and the southern states were not not into it. It took them a while.

 

Nick Capodice: Actually, this makes me think of New Hampshire in particular. I grew up when this argument was happening. Weren't we the last state in the Union to make Martin Luther King Jr. Day a holiday?

 

Hannah McCarthy: New Hampshire is kind of tied with South Carolina. They made it a holiday in 1999 and under a good deal of protest in the Legislature. [00:07:30] I should add South Carolina state law gave public employers the option of observing either MLK Day or one of three Confederate holidays now that ended in the year 2000, when MLK Day became a compulsory holiday. But just for the record, Confederate holidays are still, albeit quite controversially celebrated in several states in the U.S., including South Carolina.

 

Nick Capodice: Well, that's another prime example of federalism at work, I suppose. State [00:08:00] legislatures can enshrine whatever date they want. I'm thinking, for example, those states that opt not to celebrate Columbus Day and celebrate Indigenous Peoples Day instead, right?

 

Hannah McCarthy: Yeah. And that's something that the federal government has also considered doing replacing Columbus Day with Indigenous Peoples Day, which gets to this practice that Jeff mentioned earlier, right, of the federal government copying what a state does. So Labor Day is actually a great example of this.

 

Jeff Bensch: Different labor unions wanted a holiday to celebrate [00:08:30] labor and the eight hour workday and then the 40 hour workweek, and after various strikes and riots before then, different groups had created their own Labor Day.

 

Hannah McCarthy: Oregon was the first state to make Labor Day a legal holiday, and that was an 1887. There were 28 states celebrating Labor Day as a state holiday before Congress finally made it a federal holiday in 1894. And in a case like this, it is not like the federal government was a champion of laborers [00:09:00] or unions.

 

Jeff Bensch: It was a Pullman strike of 1894 that instigated Labor Day, and there the federal troops came in and that railroad strike was big and it spanned many other labor unions. But the federal troops came in and force the workers back to work and arrested a bunch and all that kind of stuff. But then later on that year, the president Cleveland agreed to make a federal holiday, hoping [00:09:30] to win back some of the votes he lost by sending in the federal troops.

 

Nick Capodice: So how does a federal holiday end up being signed by a president? I mean, if it carries the force of law, does it work like a bill? Does it go through the legislative process and get signed by the president at the end?

 

Hannah McCarthy: Well, for one thing, presidents sign observations of holidays all the time. But that doesn't make a federal holiday.

 

Jeff Bensch: You might get

 

Jeff Bensch: A presidential proclamation or executive order [00:10:00] that designates it as a holiday. And usually that might only be for one time or for a short period. It's really not an official holiday until it goes through Congress. It's just like any other law.

 

Hannah McCarthy: The most common argument against a federal holiday at the legislative level, by the way, is money. It costs millions of federal dollars to shut down offices, but still pay employees for the [00:10:30] day.

 

Nick Capodice: And this is another thing where it's like any other bill. It's it's an issue of funding, right? So if all these holidays had to be established by law, that means that when the United States was established as a country, Thanksgiving, for example, was not a federal holiday.

 

Jeff Bensch: There's the act of 1870. There was for holidays, New Year's Day, Independence Day, Thanksgiving and Christmas.

 

Nick Capodice: Hold on 1870. So it's basically one hundred years [00:11:00] before we had any federal holidays at all.

 

Hannah McCarthy: Yeah, the 1870 Act was passed quote to correspond with similar laws of states around the district and in every state of the Union. Loads of states already had Thanksgiving state holidays, albeit on different days. President Lincoln made it the fourth Thursday in November, years before Congress made it a paid holiday for federal employees.

 

Nick Capodice: And real quick, I have to ask. I'm fairly sure Christmas is the only federal holiday that is explicitly a religious holiday, [00:11:30] right? How is that legal? How can a law force the government to celebrate a religious holiday?

 

Hannah McCarthy: Yeah, I looked into this. There was no significant separation of church and state debate on that 1870 bill when it was in committee, but there has been some debate since it was passed. And one of the best answers I've got is that Christmas passes the lemon test,

 

Nick Capodice: The lemon test. You now have my attention.

 

Hannah McCarthy: Lemon V. Kurtzman 1971. [00:12:00] The Supreme Court establishes a three pronged test for determining whether a statute is in violation of the establishment clause of the Constitution. The statute must have a secular legislative purpose. Its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster, quote, excessive government entanglement with religion because there are three other holidays that are secular in that act, and because the passage of Christmas is a federal [00:12:30] holiday, in no way compels anybody to practice religion. It merely says the office is closed. Christmas passes.

 

Archival from Lemon v Kurtzman: It contains no religious classification or gerrymander. It is non preferential. It employs essentially religious means to achieve essentially secular ends without any primary effect of advancing religion, inhibiting religion. And I must refer you there to our brief on entanglement because we have had an inadequate opportunity to discuss the [00:13:00] whole question of entanglement.

 

Jeff Bensch: And then 1968t, we had the Uniform Holiday Act, which sometimes the Uniform Monday Holiday Act. So Washington's Birthday Memorial Day, Columbus Day and Veterans Day were all put on on Mondays.

 

Hannah McCarthy: And anybody who reads a fabulous newsletter will know that people were so mad that Veterans Day had been moved from November 11th that it was eventually switched back.

 

Nick Capodice: All right, I've got eight so far, four in the 1870s, four in the 1960s. What [00:13:30] are the other four?

 

Hannah McCarthy: The next holiday to show up is a great example of what being a federal holiday actually means, because this holiday is only celebrated by employees in Washington, DC and only every four years. Any guesses?

 

Nick Capodice: Yeah, but I didn't know this Inauguration Day is a federal holiday.

 

Hannah McCarthy: Yep, as of 1957. Then comes Columbus Day in '68. MLK Jr. Day in '83. [00:14:00] And finally, the very recent Juneteenth, which was made a federal holiday in 2021. And like many others, that is a holiday that has been celebrated since before the federal government had established a single one. Now that it's finally recognized at the federal level, though, what does that mean for this long hallowed holiday? I want to take a look at our most recently established federal holiday to ask what the pros and cons are of making something a federal holiday. [00:14:30] I'll have the answer to that question after the break.

 

There is so much I wanted to put in this episode that simply didn't fit. Like, for example, did you know that if you celebrated Christmas in Massachusetts in 1659, you would be fined five shillings?

 

Nick Capodice: Oh yeah, those Puritans, they hated Christmas.

 

Hannah McCarthy: They called it Foolstide because there was so much eating and drinking and mocking of authority. And people would go around begging and would sometimes just burst into the homes of the wealthy [00:15:00] as well. And speaking of holidays, the Puritans were not a fan, just generally. They only took a few days off. They took off for the Sabbath. Election Day, Harvard commencement day. And then there were the occasional fast and Thanksgiving days. Fast days were also called humiliation days.

 

Nick Capodice: Humiliation days.

 

Nick Capodice: Well, who wouldn't want to be a Puritan Hannah?

 

Hannah McCarthy: This is good stuff, right? So what do I do with it? Why I put it in our delightful and fun [00:15:30] newsletter. Of course, that's where all of the stuff goes. That does not make it into the episode. Like the Isle of Lost Trivia.

 

Nick Capodice: The Isle of Misfit trivia. It's called Extra Credit. You get it in your inbox every other Tuesday, and it is the best way to get the B sides of Civics 101. It's also where we put important updates and announcements, and I swear it is very much not annoying,

 

Hannah McCarthy: Absolutely worthy of space in your inbox.

 

Nick Capodice: You can sign up by clicking Subscribe to the newsletter at civics101podcast.org.

 

When [00:16:00] we're not lounging around in our slippers on a cushy paid holiday, we at the Civic 101 team are working our collective backsides off to make this show that we love. So if you love it too, and you're in the position to do so, please consider showing us some support. What with the law and all our public radio station pays us holiday or no, and you can help ensure that they're always going to do so by clicking the donate button at Civics101podcast.org. Ok, back to the stuff that really [00:16:30] matters.

 

Hannah McCarthy: All right, we're back. And now that we've covered what a federal holiday is and how it happens, I want to get into the nuance of the thing what happens to a holiday when you make it federal and to do that? We're looking at our most recent one.

 

JerriAnne Boggis: So throughout history, Juneteenth has been known by many names Jubilee Day, Freedom Day, [00:17:00] Liberation Day, Emancipation Day and today, a national holiday. So Juneteenth is a holiday that's been traditionally celebrated by African-Americans honoring and celebrating what was considered the end of enslavement. On [00:17:30] June 19th, 1865.

 

Hannah McCarthy: This is JerriAnne Boggis, longtime friend of the show and the executive director of the Black Heritage Trail of New Hampshire. Now, remember that date June 19th, 1865 a date celebrating the end of enslavement? That is two years after the Emancipation Proclamation of 1863.

 

JerriAnne Boggis: And it often surprises [00:18:00] people that we still had enslaved people in the Americas even after the Emancipation Proclamation. But it took the army actually marching into Galveston on June 19, 1865, and war then, you know, an additional war to officially enforce the Emancipation Act to free the enslaved people there.

 

Nick Capodice: Right. It wasn't as if Lincoln writes this proclamation, and suddenly all enslavers [00:18:30] freed their enslaved people.

 

Hannah McCarthy: And it isn't even that all enslaved people were made free in 1865.

 

JerriAnne Boggis: The exact date when we could say that all enslaved people were free is not really known because there were pockets of resistance across the country. There's pockets of fighting still enslaved people running away, self emancipating themselves all throughout the southern regions. We just don't know. But that June [00:19:00] 19th was celebrated because we had hard evidence and hard facts of that order that came into Galveston from the federal government to enforce and to forcefully enforce the Emancipation Act.

 

Hannah McCarthy: When I reached out to JerriAnne to talk about Juneteenth, I knew that the Black Heritage Trail had held educational celebrations of the holiday for years, and I knew that she was present when New Hampshire Governor Chris Sununu signed a law recognizing [00:19:30] Juneteenth as a holiday. Though importantly, Nick, not as a paid day off for state employees. Remember, I told you that a state doesn't necessarily pay their employees on these holidays. Yeah, but I wanted to hear what it actually meant to her, to JerriAnne to have Juneteenth recognized at the federal level.

 

JerriAnne Boggis: So I think everything comes with a double edged sword. There's always two sides to any coin. I'm really glad that it's been publicly recognized [00:20:00] and federally recognized as a holiday because it changes the narrative of American history to say, you know, that all enslaved people were freed with the Emancipation Proclamation. This federal acceptance of this June 19 creates that debunks that myth, right? It serves as a place for that dialog for us to honestly look at [00:20:30] what our history is, not a sugar coating of our history, but the reality of what it was and how that affects us today. The other side of the coin as typical typical American fashion that that's problematic and worrisome is that we'll turn it into a consumer event. You know, we'll have Juneteenth sales, you know, [00:21:00] like Christmas sales. It'll just be another another marketing opportunity rather than an understanding of of what the holiday is.

 

Nick Capodice: Yeah. And this makes me mad. This is a personal grudge of mine, and it makes me think of Labor Day in particular. Labor Day is ostensibly a day to commemorate American workers and their long struggle for protections and wages. But for most people, it is now just an end of summer holiday and a great time to get a deal on a car.

 

Hannah McCarthy: And [00:21:30] JerriAnne pointed out that even the celebration of Juneteenth has the potential to lose the thread to miss the whole point of remembering the emancipation of America's enslaved.

 

JerriAnne Boggis: There's a celebratory feel to it because we are celebrating, but African-Americans are not out of the woods in our country. Racism is still strong, still intact, still affects every segment of our systems. So I think [00:22:00] that knowledge needs to be also acknowledged that it's not the mint julep celebration, right? It is a realization of looking at. What's really going on in the country? So this is one of those things where you don't want to critique good folks who are trying to do good things but end up doing bad things, you know, because of a misunderstanding. I think we have to really think about how we celebrate [00:22:30] it and what it means. I think event with just white votes doing African-American things doesn't feel genuine.

 

Hannah McCarthy: So, for example, when a community jumps at the opportunity to celebrate Juneteenth this holiday, the federal government has finally said is worthy of recognition. The question is how are they really celebrating it and with whom?

 

JerriAnne Boggis: I think some some communities hurriedly pulled together something to celebrate Juneteenth, [00:23:00] right? And it was like, Oh my God. And you know, I think I have to put everything in its context to, you know, our last two years with the pandemic, you know, with the George Floyd murder case, our communities were really aware of the lack of diversity, their lack of action. So I think there was this push to understand or do something quickly to say, Oh, no, our community is not racist. [00:23:30] Oh no, that wouldn't happening in our town. Or No, we need to figure this out. And in that frenzy created these events without thought.

 

Hannah McCarthy: I want to reiterate JerriAnne is not disappointed that Juneteenth has been made a federal holiday. I asked her if it was a net positive, and she said yes. Of course, the point is really, is Juneteenth going to be just another day off in some states? Ok, [00:24:00] for example, Nick, do you actually stop to give thanks on Thanksgiving?

 

Nick Capodice: I try, but I sometimes fail.

 

Hannah McCarthy: Do you mourn the deaths of hundreds of thousands of U.S. soldiers on Memorial Day? Do you think Americans 50 years from now are going to reflect on our history of enslavement and how it has haunted our society and laws every Juneteenth?

 

JerriAnne Boggis: I think time [00:24:30] will tell just what America will make of this federal holiday. I think that may scare some people to say that Juneteenth may be more celebrated than July 4th. You know, because July 4th is problematic when we think of, you know, a whole percent huge percentage of people being enslaved while we're celebrating July 4th, whereas June 19th, we're looking at a bigger picture, a more inclusive [00:25:00] picture and what's out put it in quotes. Freedom is, you know, I'm just really glad that it's there. And I, you know, have big hopes for the celebration and really allowing people to create a different narrative of what America is.

 

Nick Capodice: It's interesting to think of federal holidays as an opportunity, even if a federal holiday in practice does not apply to the entire nation. [00:25:30] Giving an idea or an event federal recognition at the federal level, it's symbolic. It says that the U.S. government agrees that something is worthy of observance. Juneteenth was not made a federal holiday because the government thought everybody needed another day off or that like sock companies needed the excuse to make Juneteenth socks,

 

Hannah McCarthy: Which you can buy at Wal-Mart. By the way, they do already exist, which is exactly the slippery slope JerriAnne was talking about. [00:26:00] Because you're right, Nick, when the federal government creates a federal holiday, that is a political statement, and it gives states and communities the chance to make statements of their own in the way they choose to celebrate both Juneteenth and every holiday.

 

Nick Capodice: One last thing, Hannah.

 

Hannah McCarthy: Go for it.

 

I looked it up during the break and guess what today is

 

Hannah McCarthy: As [00:26:30] we're taping this episode, it is December 4th.

 

Nick Capodice: Yes, yes. But guess what that means?

 

Hannah McCarthy: I don't want to.

 

Nick Capodice: It's National Sock Day. Like for real.

 

Hannah McCarthy: I have to go.

 

Hannah McCarthy: And in a case like this, it is not like the federal government was championing it. How do you say that word? Championing, right?

 

Nick Capodice: Yeah, it was championing.

 

Hannah McCarthy: It was not like the federal government [00:27:00] was championing labors. So really hard championing, championing.

 

Nick Capodice: Yeah. Just like a champion of.

 

Hannah McCarthy: Ok.

 

Hannah McCarthy: This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. Music in this episode by Yung Kartz, petrochines, Mello C, Marten Schellekens, Ketsa, Breakmaster Cylinder and Audiobinger. You [00:27:30] can find this in all other episodes at our website civics101podcast.org. And if you're looking for more, albeit significantly quieter civics lessons, you can check out the book that Nick and I wrote. It's called A User's Guide to Democracy: How America Works, and it was illustrated by the very wonderful New Yorker cartoonist Tom Toro. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Civics at the Movies: NASA and Hollywood

Yup, it’s a special bonus episode!

We're launching a new series called Civics at the Movies, where we'll talk about the fun we have (and the inaccuracies we count!) when government and civics appear on screen...from All The President's Men to Veep to...don't even get us started.

For our inaugural edition, we're talking about NASA and Hollywood. Why does the agency in charge of science and technology relating to air and space have such a close relationship with the movie industry? And is it true that NASA scientist sometimes get inspiration from science fiction when they invent new gadgets?


Civics-Bonus-NASA-Movies-1.mp3: Audio automatically transcribed by Sonix

Civics-Bonus-NASA-Movies-1.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Nick Capodice:
You're listening to Civics 101, I'm Nick Capodice,

Hannah McCarthy:
I'm Hannah McCarthy, we have a fun little bonus episode for everybody today.

"Say again, please. Houston, we have a problem."

Hannah McCarthy:
You know, for a long time we've been saying, wouldn't it be really fun if we could do a civics episode about, like all the president's men or Mr. Smith goes to Washington? Yeah. All of these movies about democracy and government.

Nick Capodice:
Veep?

Hannah McCarthy:
Yeah, absolutely excellent. And then one day we're all sitting around. We were like, of course, civics at the movies

"Plenty of time. So visit the snack bar. Now a tasty treat will double your enjoyment of the show."

Nick Capodice:
Our producer, Jacqui Fulton, is going to blast off with the first one. Jacqui, what are we talking about today?

Jacqui Fulton:
We're going to be talking about NASA and Hollywood.

Nick Capodice:
So, Jacqui, before we start, one of my favorite little trivia tidbits about NASA and the movies is that there is a movie so bad, so scientifically inaccurate that NASA uses it in training for new hires to find as many inconsistencies in the movie as they possibly can. It is the 1998 classic Armageddon the United States government just asked us to save the world.

"We're talking about space, right? Outer space. This is like deep blue hero stuff. I'm there. I'm with you. Hit me up, Scotty."

Jacqui Fulton:
Oh yeah. That's the one where NASA recruits deep core drillers to fly to an asteroid and blow it up with a nuclear bomb before it can destroy Earth.

Nick Capodice:
It has one hundred and sixty eight things in it that are scientifically impossible, not just improbable, like impossible. That's that's that's more than one thing a minute that scientifically impossible.

Hannah McCarthy:
Okay so NASA, I'm very excited for this one. Did you actually talk to somebody who works for NASA?

Jacqui Fulton:
Boy, did I ever? I wore my NASA hat and favorite NASA shirt to talk to the big man himself. NASA's chief scientist, Dr. James Green, Dr. Green, are you there?

NASA Tech Help:
You know, we've been having some connectivity problems here at NASA today.

"This is Houston. Say again, please."

Jacqui Fulton:
Dr. Green may know all the science and technology to get to the Moon, but like all of us, he still had issues with Zoom.

NASA Tech Help:
It may be that he needs to reboot his computer. I'm sorry, Dave.

"I'm afraid I can't do that."

Dr. James Green :
Yes, I'm Jim Green, NASA's chief scientist.

Hannah McCarthy:
And for anyone out there who might not know what is NASA,Jacqui, can you help us out?

Jacqui Fulton:
I'll let this nice man from an old educational video explain

"The National Aeronautics and Space Administration, or NASA, was formed to consolidate U.S. policy in space that is devoted to peaceful purposes for the benefit of all mankind."

Jacqui Fulton:
While NASA might sound too cool to be a government agency, it is an independent agency in the Department of the Interior with a budget of twenty three point three billion dollars. NASA doesn't just send people in this space. They study the Earth, the climate, our solar system and beyond. Technology they develop is used to help all earthlings. Dr. Green is the chief scientist at NASA, the top guy Uber nerd of all the space nerds. I asked how we got into studying space in the first place

Dr. James Green :
In high school chemistry. The chemistry teacher was outstanding and he ended up becoming the head of an observatory was a 12 inch album Clark refractor. And it was during that time that Star Trek, the original one with the with Captain Kirk and Spock and McCoy in the crowd really came on the scene.

"Enterprise log captain James Kirk commanding. We are leaving that vast cloud of stars and planets, which we call our galaxy."

Dr. James Green :
The question was when I wasn't watching Star Trek, I was observing the stars with the telescopes.

Jacqui Fulton:
You were talking about Star Trek. I'm sure you saw that William Shatner went into space.

Dr. James Green :
Yes.

Bill Schatner:
"So filled with emotion about what just happened. I just it's extraordinary."

Dr. James Green :
Yeah. Actually, I know William or Bill, as he likes to be called reasonably well. I was on Bill's podcast called Burgers and Beer.

Nick Capodice:
Two things: he knows Bill Shatner, and Bill Shatner has a podcast.

Jacqui Fulton:
Well, all the cool kids have a podcast. I'll drop them a line to beg for a guest spot.

Hannah McCarthy:
And speaking of Star Trek, Jacqui, there's this thing that I've heard that's a little hard to believe, which is that sometimes NASA scientists develop new technology based on stuff they see in pop culture. Is that actually true?

Jacqui Fulton:
Yeah. I asked about that.

Jacqui Fulton:
I've heard that like shows like Star Trek and Star Wars, especially Star Trek, have actually inspired scientists to make certain things. That's true.

Dr. James Green :
Yeah, of course. In fact, I was the NASA head consultant on the movie The Martian.

"I have no way to contact NASA or my crewmates, but even if I could, it would take four years for another manned mission to reach me."

Dr. James Green :
I was very privileged to be able to do that. The book was written by Andy Weir. Great, a great hard science fiction book, meaning that you use the basic understanding of our physics and knowledge and then you extrapolate into the future and then create a vision. And we call that hard science fiction. And I had one of the major set designers, Art Max, with me at the Johnson Space Center.

Dr. James Green :
We toured modules that NASA was building to test what they might look like and functionality on the surface of Mars. And of course, that's part of the movie. And so he was walking around saying, I don't see this, I don't see this. How are you going to do that? How are you going to do this? And I said, Art, you have to figure this out. You have to you have to be able to decide what it's going to look like. And if we like it, we might actually adopt it.

Jacqui Fulton:
For example, Dr. Green talked about how things we see in shows like Star Trek influence the way NASA does, things like how NASA is able to call an astronaut on the space station on their iPhone.

Dr. James Green :
The TV show in the sixties, you know, was talking about as a major way you communicate well, communicators, you know, then are like our iPhones today. It's amazing what we can do

"For the enterprise. Scott, sir. We're beaming up, not if I transport a room."

Dr. James Green :
And so indeed, things like that occur in science fiction that then gets stuck in our mind. And and indeed, many people move in the direction of creating these kind of things that are science fiction at the time, but can become science reality.

Jacqui Fulton:
This brings us back to Armageddon. It might not be as far-fetched as you thought, Nick.

"Next, we have a bit of news from space. A NASA spacecraft set to launch this week, we'll try to change the trajectory of an asteroid, which could come in handy if Earth is ever threatened by a rock from space. It was put together by NASA's Planetary Defense Office, which is a real thing."

Nick Capodice:
There is an actual NASA planetary defense office, and they sent spacecraft to whack into an asteroid just like in the movie?

Jacqui Fulton:
It's less dramatic than Bruce Willis blowing up the asteroid with a nuclear bomb. NASA will be nudging the asteroid a different direction instead. But still, that science fiction becoming reality.

Hannah McCarthy:
So NASA, our real life space agency, sometimes creates technology based on science fiction and science fiction drives some of the tech that NASA develops. But why is NASA so cozy with the movie industry in the first place?

Nick Capodice:
We'll get to that after the break.

Nick Capodice:
Ok, we're back,

Hannah McCarthy:
Yep, this is Civics 101 I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice,

Hannah McCarthy:
And today we are talking about civics at the movies and the special relationship between NASA, the government agency responsible for science and technology related to air and space and the big screen.

Nick Capodice:
And helping us out today is our producer, Jacqui Fulton, who spoke with NASA's chief scientist, James Green. So Jacqui, we heard from Dr. Green that he consulted on The Martian, and I want to know to what extent is NASA officially involved in the movie business?

Jacqui Fulton:
Well, Sandra Bullock got to consult with an astronaut before shooting gravity, and NASA has confirmed that they're working with Tom Cruise to film a movie on the International Space Station. And of course, he does all his own stunts. Dr. Green told me that the agency is involved in over 40 to 50 documentaries and films a year.

Hannah McCarthy:
And look, I don't want to be a total killjoy here, Jacqui. But how does a government organization justify this kind of thing to its taxpayers?

Dr. James Green :
We are a federal agency. We're funded by the public and what we have, you know, can be requested and acquired. We have an enormous amount of data and indeed many, many groups use that data. So it's not always scientific. It can be used in different ways.

Jacqui Fulton:
NASA does invest labor, resources, and therefore taxpayer money into these movie projects, but they see it as part of their mission to give the public access to their work. And like in Dr. Green's case, it can be a good recruitment tool. For filmmakers, a perk of working with NASA is that they get to use NASA's technology like special airplanes to get actors into near zero gravity. They're called the vomit comet.

Dr. James Green :
These planes go into an orbit that goes straight up, flies a little parallel to the ground and then come straight down. And it's that it's that leg where they're going straight down that you end up feeling like you're in space. We call that microgravity. And you end up floating around.

Dr. James Green :
And in fact, you know, the movie Apollo 13, which is a movie about that particular mission's problem. It's beautifully filmed and you have the sense of weightlessness as they go from the capsule back into the the lunar module, you know, and float around. Much of that was filmed on what are called the Zero-G flights. These parabolic flights that that that happen to make it as realistic as possible, they didn't use wires. They weren't, You weren't suspended from the ceiling in some studio.

"And we have a pretty good show in store for you tonight. We are going to show you just what our life is like for the three of us here in the vast expanse of outer space... And it really OK... One of the first things we'd like to do is provide you with the appropriate background music... So hit it there, Freddo. Hello, world."

Nick Capodice:
Last thing, if NASA is sharing its materials and data and scientists with filmmakers, how does someone like Dr. Green feel when he sees an Armageddon? You know, a bad capital b a D movie about space?

Dr. James Green :
Yeah, I I enjoy science fiction movies, but I really don't go to a movie and pick apart the science. I like going and, you know, sort of check my science at the door and go on in and really enjoy it.

Jacqui Fulton:
Yeah, it could get tedious, I guess, to pick it apart. So you're able to suspend disbelief.

Dr. James Green :
Yeah, sure. Of course, you have to recognize that as you study science, you're taught about physical principles and the laws of physics, the laws of quantum mechanics. Some of these things are very strange. In fact, most of them are very strange, and most of them are hard to relate to yourself here on Earth. You know, with gravity, the ability to tease out what's happening on scales that you cannot see with the atoms and how, how they're arranged and what they do, and that requires a little suspension of belief sometimes.

Jacqui Fulton:
I don't know about you, Nick. That makes me feel much better about binge watching X-Files.

Nick Capodice:
Me too. We're doing it for the science Jacqui. And if you want to hear more of Dr. Green geeking out about space science, you should check out his podcast, Gravity Assist.

Jacqui Fulton:
I told you all the cool kids have their own podcast.

Hannah McCarthy:
That'll do it. This episode of Civics 101 was produced by Jacqui Fulton and Rebecca LaVoy. Our staff includes Christina Philips

Nick Capodice:
Music in this episode by Animalweapon Chris Zabriskie, Uncanny Valleys, Nangdo, Sci Fi Industries, Ansia Orchestra, Blue Dot Sessions, and Karl Casey.

Hannah McCarthy:
And if you have a favorite movie or TV show about government or politics or anything adjacent to us, please drop us a line. Tell us you want an episode on it. You can email us at Civic's one on one at NH Nhpr.org.

Nick Capodice:
I really just want to get an expert on to break down the accuracy of movies that depict the machinations of Congress, you know?

Hannah McCarthy:
Yeah, OK. Speaking of accuracy, I have heard that people in government say that Veep is actually remarkably accurate, that a lot of what you see on that show is exactly how conversations and decisions go at the executive level. And I really want to know if that's true. I want to do an episode on it.

Nick Capodice:
All right. Civics 101 is a production of NHPR New Hampshire Public Radio.

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Nick Capodice: [00:01:27] You're listening to Civics 101, I'm Nick Capodice,

 

Hannah McCarthy: [00:01:30] I'm Hannah McCarthy, we have a fun little bonus episode for everybody today.

 

[00:01:34] "Say again, please. Houston, we have a problem."

 

Hannah McCarthy: [00:01:37] You know, for a long time we've been saying, wouldn't it be really fun if we could do a civics episode about, like all the president's men or Mr. Smith goes to Washington? Yeah. All of these movies about democracy and government.

 

Nick Capodice: [00:01:49] Veep?

 

Hannah McCarthy: [00:01:50] Yeah, absolutely excellent. And then one day we're all sitting around. We were like, of course, civics at the movies

 

[00:01:59] "Plenty of time. So visit the snack bar. Now a tasty treat will double your enjoyment of the show."

 

Nick Capodice: [00:02:06] Our producer, Jacqui Fulton, is going to blast off with the first one. Jacqui, what are we talking about today?

 

Jacqui Fulton: [00:02:12] We're going to be talking about NASA and Hollywood.

 

Nick Capodice: [00:02:17] So, Jacqui, before we start, one of my favorite little trivia tidbits about NASA and the movies is that there is a movie so bad, so scientifically inaccurate that NASA uses it in training for new hires to find as many inconsistencies in the movie as they possibly can. It is the 1998 classic Armageddon the United States government just asked us to save the world.

 

[00:02:17] "We're talking about space, right? Outer space. This is like deep blue hero stuff. I'm there. I'm with you. Hit me up, Scotty."

 

Jacqui Fulton: [00:02:51] Oh yeah. That's the one where NASA recruits deep core drillers to fly to an asteroid and blow it up with a nuclear bomb before it can destroy Earth.

 

Nick Capodice: [00:03:01] It has one hundred and sixty eight things in it that are scientifically impossible, not just improbable, like impossible. That's that's that's more than one thing a minute that scientifically impossible.

 

Hannah McCarthy: [00:03:15] Okay so NASA, I'm very excited for this one. Did you actually talk to somebody who works for NASA?

 

Jacqui Fulton: [00:03:22] Boy, did I ever? I wore my NASA hat and favorite NASA shirt to talk to the big man himself. NASA's chief scientist, Dr. James Green, Dr. Green, are you there?

 

NASA Tech Help: [00:03:34] You know, we've been having some connectivity problems here at NASA today.

 

[00:03:38] "This is Houston. Say again, please."

 

Jacqui Fulton: [00:03:41] Dr. Green may know all the science and technology to get to the Moon, but like all of us, he still had issues with Zoom.

 

NASA Tech Help: [00:03:48] It may be that he needs to reboot his computer. I'm sorry, Dave.

 

[00:03:53] "I'm afraid I can't do that."

 

Dr. James Green : [00:03:55] Yes, I'm Jim Green, NASA's chief scientist.

 

Hannah McCarthy: [00:03:59] And for anyone out there who might not know what is NASA,Jacqui, can you help us out?

 

Jacqui Fulton: [00:04:04] I'll let this nice man from an old educational video explain

 

[00:04:09] "The National Aeronautics and Space Administration, or NASA, was formed to consolidate U.S. policy in space that is devoted to peaceful purposes for the benefit of all mankind."

 

Jacqui Fulton: [00:04:22] While NASA might sound too cool to be a government agency, it is an independent agency in the Department of the Interior with a budget of twenty three point three billion dollars. NASA doesn't just send people in this space. They study the Earth, the climate, our solar system and beyond. Technology they develop is used to help all earthlings. Dr. Green is the chief scientist at NASA, the top guy Uber nerd of all the space nerds. I asked how we got into studying space in the first place

 

Dr. James Green : [00:04:58] In high school chemistry. The chemistry teacher was outstanding and he ended up becoming the head of an observatory was a 12 inch album Clark refractor. And it was during that time that Star Trek, the original one with the with Captain Kirk and Spock and McCoy in the crowd really came on the scene.

 

[00:05:22] "Enterprise log captain James Kirk commanding. We are leaving that vast cloud of stars and planets, which we call our galaxy."

 

Dr. James Green : [00:05:30] The question was when I wasn't watching Star Trek, I was observing the stars with the telescopes.

 

Jacqui Fulton: [00:05:36] You were talking about Star Trek. I'm sure you saw that William Shatner went into space.

 

Dr. James Green : [00:05:42] Yes.

 

Bill Schatner: [00:05:43] "So filled with emotion about what just happened. I just it's extraordinary."

 

Dr. James Green : [00:05:49] Yeah. Actually, I know William or Bill, as he likes to be called reasonably well. I was on Bill's podcast called Burgers and Beer.

 

Nick Capodice: [00:06:03] Two things: he knows Bill Shatner, and Bill Shatner has a podcast.

 

Jacqui Fulton: [00:06:09] Well, all the cool kids have a podcast. I'll drop them a line to beg for a guest spot.

 

Hannah McCarthy: [00:06:15]  And speaking of Star Trek, Jacqui, there's this thing that I've heard that's a little hard to believe, which is that sometimes NASA scientists develop new technology based on stuff they see in pop culture. Is that actually true?

 

Jacqui Fulton: [00:06:31] Yeah. I asked about that.

 

Jacqui Fulton: [00:06:33] I've heard that like shows like Star Trek and Star Wars, especially Star Trek, have actually inspired scientists to make certain things. That's true.

 

Dr. James Green : [00:06:45] Yeah, of course. In fact, I was the NASA head consultant on the movie The Martian.

 

[00:06:52] "I have no way to contact NASA or my crewmates, but even if I could, it would take four years for another manned mission to reach me."

 

Dr. James Green : [00:07:00] I was very privileged to be able to do that. The book was written by Andy Weir. Great, a great hard science fiction book, meaning that you use the basic understanding of our physics and knowledge and then you extrapolate into the future and then create a vision. And we call that hard science fiction. And I had one of the major set designers, Art Max, with me at the Johnson Space Center.

 

Dr. James Green : [00:07:31] We toured modules that NASA was building to test what they might look like and functionality on the surface of Mars. And of course, that's part of the movie. And so he was walking around saying, I don't see this, I don't see this. How are you going to do that? How are you going to do this? And I said, Art, you have to figure this out. You have to you have to be able to decide what it's going to look like. And if we like it, we might actually adopt it.

 

Jacqui Fulton: [00:08:03] For example, Dr. Green talked about how things we see in shows like Star Trek influence the way NASA does, things like how NASA is able to call an astronaut on the space station on their iPhone.

 

Dr. James Green : [00:08:16] The TV show in the sixties, you know, was talking about as a major way you communicate well, communicators, you know, then are like our iPhones today. It's amazing what we can do

 

[00:08:30] "For the enterprise. Scott, sir. We're beaming up, not if I transport a room."

 

Dr. James Green : [00:08:35] And so indeed, things like that occur in science fiction that then gets stuck in our mind. And and indeed, many people move in the direction of creating these kind of things that are science fiction at the time, but can become science reality.

 

Jacqui Fulton: [00:08:54] This brings us back to Armageddon. It might not be as far-fetched as you thought, Nick.

 

[00:08:59] "Next, we have a bit of news from space. A NASA spacecraft set to launch this week, we'll try to change the trajectory of an asteroid, which could come in handy if Earth is ever threatened by a rock from space. It was put together by NASA's Planetary Defense Office, which is a real thing."

 

Nick Capodice: [00:09:18] There is an actual NASA planetary defense office, and they sent spacecraft to whack into an asteroid just like in the movie?

 

Jacqui Fulton: [00:09:28] It's less dramatic than Bruce Willis blowing up the asteroid with a nuclear bomb. NASA will be nudging the asteroid a different direction instead. But still, that science fiction becoming reality.

 

Hannah McCarthy: [00:09:42] So NASA, our real life space agency, sometimes creates technology based on science fiction and science fiction drives some of the tech that NASA develops. But why is NASA so cozy with the movie industry in the first place?

 

Nick Capodice: [00:09:59] We'll get to that after the break.

 

Nick Capodice: [00:11:16] Ok, we're back,

 

Hannah McCarthy: [00:11:17] Yep, this is Civics 101 I'm Hannah McCarthy.

 

Nick Capodice: [00:11:19]  I'm Nick Capodice,

 

Hannah McCarthy: [00:11:20] And today we are talking about civics at the movies and the special relationship between NASA, the government agency responsible for science and technology related to air and space and the big screen.

 

Nick Capodice: [00:11:32] And helping us out today is our producer, Jacqui Fulton, who spoke with NASA's chief scientist, James Green. So Jacqui, we heard from Dr. Green that he consulted on The Martian, and I want to know to what extent is NASA officially involved in the movie business?

 

Jacqui Fulton: [00:11:48] Well, Sandra Bullock got to consult with an astronaut before shooting gravity, and NASA has confirmed that they're working with Tom Cruise to film a movie on the International Space Station. And of course, he does all his own stunts. Dr. Green told me that the agency is involved in over 40 to 50 documentaries and films a year.

 

Hannah McCarthy: [00:12:11] And look, I don't want to be a total killjoy here, Jacqui. But how does a government organization justify this kind of thing to its taxpayers?

 

Dr. James Green : [00:12:20] We are a federal agency. We're funded by the public and what we have, you know, can be requested and acquired. We have an enormous amount of data and indeed many, many groups use that data. So it's not always scientific. It can be used in different ways.

 

Jacqui Fulton: [00:12:38] NASA does invest labor, resources, and therefore taxpayer money into these movie projects, but they see it as part of their mission to give the public access to their work. And like in Dr. Green's case, it can be a good recruitment tool. For filmmakers, a perk of working with NASA is that they get to use NASA's technology like special airplanes to get actors into near zero gravity. They're called the vomit comet.

 

Dr. James Green : [00:13:06] These planes go into an orbit that goes straight up, flies a little parallel to the ground and then come straight down. And it's that it's that leg where they're going straight down that you end up feeling like you're in space. We call that microgravity. And you end up floating around.

 

Dr. James Green : [00:13:37] And in fact, you know, the movie Apollo 13, which is a movie about that particular mission's problem. It's beautifully filmed and you have the sense of weightlessness as they go from the capsule back into the the lunar module, you know, and float around. Much of that was filmed on what are called the Zero-G flights. These parabolic flights that that that happen to make it as realistic as possible, they didn't use wires. They weren't, You weren't suspended from the ceiling in some studio.

 

[00:14:14] "And we have a pretty good show in store for you tonight. We are going to show you just what our life is like for the three of us here in the vast expanse of outer space... And it really OK... One of the first things we'd like to do is provide you with the appropriate background music... So hit it there, Freddo. Hello, world."

 

Nick Capodice: [00:14:38] Last thing, if NASA is sharing its materials and data and scientists with filmmakers, how does someone like Dr. Green feel when he sees an Armageddon? You know, a bad capital b a D movie about space?

 

Dr. James Green : [00:14:53] Yeah, I I enjoy science fiction movies, but I really don't go to a movie and pick apart the science. I like going and, you know, sort of check my science at the door and go on in and really enjoy it.

 

Jacqui Fulton: [00:15:05] Yeah, it could get tedious, I guess, to pick it apart. So you're able to suspend disbelief.

 

Dr. James Green : [00:15:12] Yeah, sure. Of course, you have to recognize that as you study science, you're taught about physical principles and the laws of physics, the laws of quantum mechanics. Some of these things are very strange. In fact, most of them are very strange, and most of them are hard to relate to yourself here on Earth. You know, with gravity, the ability to tease out what's happening on scales that you cannot see with the atoms and how, how they're arranged and what they do, and that requires a little suspension of belief sometimes.

 

Jacqui Fulton: [00:15:55] I don't know about you, Nick. That makes me feel much better about binge watching X-Files.

 

Nick Capodice: [00:16:00] Me too. We're doing it for the science Jacqui. And if you want to hear more of Dr. Green geeking out about space science, you should check out his podcast, Gravity Assist.

 

Jacqui Fulton: [00:16:10] I told you all the cool kids have their own podcast.

 

Hannah McCarthy: [00:16:35] That'll do it. This episode of Civics 101 was produced by Jacqui Fulton and Rebecca LaVoy. Our staff includes Christina Philips

 

Nick Capodice: [00:16:42] Music in this episode by Animalweapon Chris Zabriskie, Uncanny Valleys, Nangdo, Sci Fi Industries, Ansia Orchestra, Blue Dot Sessions, and Karl Casey.

 

Hannah McCarthy: [00:16:50] And if you have a favorite movie or TV show about government or politics or anything adjacent to us, please drop us a line. Tell us you want an episode on it. You can email us at Civic's one on one at NH Nhpr.org.

 

Nick Capodice: [00:17:02] I really just want to get an expert on to break down the accuracy of movies that depict the machinations of Congress, you know?

 

Hannah McCarthy: [00:17:09] Yeah, OK. Speaking of accuracy, I have heard that people in government say that Veep is actually remarkably accurate, that a lot of what you see on that show is exactly how conversations and decisions go at the executive level. And I really want to know if that's true. I want to do an episode on it.

 

Nick Capodice: [00:17:27] All right. Civics 101 is a production of NHPR New Hampshire Public Radio.

 


 
 

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This podcast is a production of New Hampshire Public Radio.

Emergency Powers of the President

Emergency powers are designed for when plans need to change, and fast, by allowing the president to override certain Constitutional provisions in a time of crisis. But in the last century, national emergencies have gone from a rarity to a tool that presidents use dozens of times while in office. 

We talk about what a president can (and cannot) do during a state of emergency, and how Congress has tried to put checks on that power, with help from Kim Lane Scheppele, author of Law in a Time of Emergency.

 

EPISODE SEGMENTS

Emergency Powers Final.mp3: Audio automatically transcribed by Sonix

Emergency Powers Final.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Archival News Audio:
"Immediately following the first attack, I implemented our government's emergency response"..."President Barack Obama has declared swine flu a national emergency"... "Now, not over the next 68 days, but right now"... "The bottom line is this we're in a national emergency. We need to act like we're in a national emergency."

Hannah McCarthy:
Nic, how common would you wager a national emergency is

Nick Capodice:
A national emergency? Sounds like a very rare thing. Like it's it's reserved for emergencies. It's like break this glass, but only if there is an emergency.

Hannah McCarthy:
Currently in December 2021, when we are recording this, we have 40 active national emergencies.

Nick Capodice:
Forty!

Hannah McCarthy:
Yeah, and some of these emergencies have been active for decades. The oldest is from nineteen seventy nine and started after the Iran hostage crisis.

Archival News Audio:
"An embassy in Tehran is in the hands of Muslim students tonight, spurred on by an anti-American speech by the Ayatollah Khomeini. They stormed the embassy..."

Nick Capodice:
I mean, I assume we're not just talking about something that happened that seemed like an emergency at the time. This is an official codified term, right?

Hannah McCarthy:
Yeah, it's more than someone just yelling, "It's an emergency!" Actually, it's not too different from that, but it is that the president is the one yelling it.

Archival News Audio (Trump):
"To unleash the full power of the federal government in this effort. Today, I am officially declaring a national emergency..."

Hannah McCarthy:
And in doing so, invoking their quote "emergency powers." It is the political equivalent of, as you said, breaking the glass or like pushing the big red button.

Nick Capodice:
Have there always been so many emergencies going on at the same time?

Hannah McCarthy:
Ok, so you said that a national emergency sounds like it should be a rare thing, right?

Nick Capodice:
Yeah.

Hannah McCarthy:
And it used to be. In the last century, the president's use of emergency powers went from a rarity to a tool that presidents use dozens of times while in office, and they often extend into the next administration and the one after that. Our last four presidents have had 53 national emergencies between them. Clinton had 17, George W. Bush had 13. Obama had 12 and Trump had 11.

Hannah McCarthy:
But before we talk about how we ended up with dozens of simultaneous national emergencies, some decades old, we should talk about what emergency powers are and why they exist in the first place. I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And this is Civics 101. Today we are talking about the power that a president gets during a national emergency and how Congress has tried to put checks on that power.

Nick Capodice:
So what are emergency powers?

Hannah McCarthy:
I'm going to leave that up to Kim Lane Scheppele, the author of Law in a Time of Emergency, which is I really like that title. Virginia Prescott, the former host of Civics 101, spoke to her back in 2017.

Kim Lane Scheppele:
Emergency powers are used to override laws that would otherwise normally have effect, and actually it's also used to override some constitutional provisions that would otherwise have effect.

Hannah McCarthy:
Emergency powers are designed for moments when plans need to change and fast. And the president decides that they can't wait for the slow bureaucracy of Congress to act.

Kim Lane Scheppele:
For example, you know, presidents all the time declare national disasters or emergencies. If there are hurricanes, floods, giant snowstorms, you know various kinds of weather related emergencies, earthquakes would be another example. And when the president declares emergency powers, what the president can usually do is to take money that's been allocated for other purposes and redirect it to deal with the crisis that the country is facing at the moment.

Nick Capodice:
So an emergency allows the president to override certain laws and take money Congress at designated to one thing and use it somewhere else.

Hannah McCarthy:
Yes.

Kim Lane Scheppele:
Constitution 101 says that Congress must appropriate funds for specific uses. And so here you've got a case where the president sort of overrides that and takes money. Congress has put aside for one purpose and uses it for another purpose.

Nick Capodice:
Is there any law that defines what actually counts as an emergency?

Hannah McCarthy:
There is no strict definition of a quote unquote "emergency" in our constitution, but the understanding of how that word can be used has evolved over time. All a president needs to do is issue a proclamation and file it with a federal register announcing a state of emergency because of a specific reason. A hurricane. An attack of some kind. A pandemic.

Nick Capodice:
It sounds like emergency powers are a way for a president to push their agenda without having to work with Congress, as this always been sort of a tried and true workaround for navigating the wheels of Congress.

Kim Lane Scheppele:
Well, it used to be the case. If you go back far enough in American history, presidents would just declare emergencies on their own.

Hannah McCarthy:
Now, presidents weren't declaring emergencies with any regularity until the 1930s. It was right after the stock market crashed. It was the beginning of the Great Depression, and what happens is newly elected President Franklin Delano Roosevelt declares a Federal Bank Holiday.

Hannah McCarthy:
He closes the country's banks for four days, and this was the first step in the government reconstruction of our financial and economic fabric.

Hannah McCarthy:
Now, Roosevelt justified this move under the Trading with Enemies Act of 1917, which gave the president the power to restrict trade with enemies during wartime.

Nick Capodice:
This is 1933.

Hannah McCarthy:
Yeah.

Nick Capodice:
We weren't at war in 1933.

Hannah McCarthy:
No. But Roosevelt found a way to retroactively justify this act because at the time there were over 100 newly elected Democrats in Congress who also wanted to make radical changes to the banking system. Roosevelt asked Congress to pass a joint resolution that became the Emergency Banking Act, which not only gave the president the power to restrict trade in a national emergency, but also created 12 new Federal Reserve banks that could issue additional currency and stabilize the nation's economy.

Nick Capodice:
What it sounds like is that Roosevelt used an emergency situation as an opportunity to give the president more power to act in future emergency situations.

Hannah McCarthy:
Yeah, and he also used it to drastically change the banking structure in the United States and for the next two decades. T

Hannah McCarthy:
he list of things presidents justified doing in certain situations like wartime or an emergency kept growing and growing. Like President Truman's decision to send troops to South Korea without congressional authorization during the Cold War and President Johnson's escalation of America's participation in the Vietnam War

Archival News Audio (Nixon):
"To protect our men who are in Vietnam..."

Hannah McCarthy:
And then President Nixon came along

Archival News Audio (Nixon):
"And to guarantee the continued success of our withdrawal and Vietnamization programs. I have concluded that the time has come for action."

Hannah McCarthy:
During the Vietnam War, Nixon ordered secret bombings in Cambodia without alerting Congress, and Congress was not pleased.

Archival News Audio (Nixon):
"I would rather be a one term president and do what I believe was right and to be a two term president at the cost of seeing America become a second rate power."

Hannah McCarthy:
Don't forget there was something else that pushed Congress and Nixon at odds.

Archival News Audio:
"Watergate. The White House called it a third rate burglary, but it escalated into the worst political scandal in American history."

Hannah McCarthy:
In 1972, someone broke into the Democratic Party headquarters at the Watergate hotel, stole documents and bugged a phone. Nixon hampered the federal investigation into the break-in at one point ordering his attorney general to fire the special prosecutor, Archibald Cox, the very man who was investigating Nixon.

Archival News Audio:
"Half an hour after the special Watergate prosecutor had been fired. Agents of the FBI, acting at the direction of the White House, sealed off the offices of the special prosecutor. The offices of the attorney general and the offices of the deputy attorney general. That's a stunning..."

Hannah McCarthy:
Here's Kim Lane Scheppele again.

Kim Lane Scheppele:
Congress got a little bit nervous about exactly what presidents can do, especially when investigations are closing in on them, and the president seems to have no limits on the way the president can, shall we say, hold off those kinds of investigations.

Nick Capodice:
I think of this is kind of like the political equivalent of a snowball fight. It's all fun and games until that one kid starts packing his snowballs with rocks.

Hannah McCarthy:
Congress passed a number of reforms throughout the 1970s to rein in the executive branch, starting with the War Powers Act of 1973, which limited the president's ability to take military action without congressional approval. It was vetoed by Nixon. That veto was overturned. And during this period, a Senate inquiry found that there were more than 450 statutes that the executive branch could use when a president declares a state of emergency.

Kim Lane Scheppele:
Congress developed a series of laws that actually regulate presidential emergency powers.

Hannah McCarthy:
The result?

Hannah McCarthy:
Two acts that drew boundaries around presidential powers. The National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977. We'll talk about them right after this.

Nick Capodice:
Hannah, you said there were two acts that gave Congress more checks on presidential power. How did they do that?

Hannah McCarthy:
Let's talk about the International Emergency Economic Powers Act or the IEEPA first, because it defines a type of national emergency called economic sanctions.

Archival News Audio (Clinton):
"I am formally announcing my intention to cut off all trade and investment with Iran."

Hannah McCarthy:
Which make up 65 of the 71 national emergencies that have been declared since 1976. Here's Kim Lane Scheppele, the author of Law in a Time of Emergency,

Kim Lane Scheppele:
And under that act, the president can designate certain individuals and organizations for sanctions that they can't receive certain kinds of materials or funds from the United States, for example.

Hannah McCarthy:
And if there is an actual attack, the president can confiscate property connected with a country group or person that aided in the attack.

Nick Capodice:
How does that actually work?

Hannah McCarthy:
Trump's national security adviser, John Bolton, explains this process pretty well. So what happened is in twenty nineteen President Trump increased sanctions against Venezuela.

Archival News Audio:
"So basically one way to summarize this to a business, for example, is do you want to do business in Venezuela or do you want to do business with the United States?"

Hannah McCarthy:
The first national emergency declared under that law was that one from 1979 that we mentioned earlier. Jimmy Carter imposed economic sanctions on Iran after diplomats at the embassy were taken hostage. Those sanctions were lifted in 1981 as part of an agreement to release the hostages. But Reagan instated new sanctions in 1984 during the Iraq-Iran war, and we have had some form of sanctions against Iran pretty much ever since.

Nick Capodice:
Ok, the IEEPA defined economic sanctions on foreign enemies, but what about the other types of emergencies that wouldn't benefit from imposing sanctions on another country like hurricanes or floods, snowstorms or pandemics?

Hannah McCarthy:
This is where the National Emergencies Act comes in. One major thing this act did was to establish rules for what the president can and cannot do when they declare a national emergency. Remember how I said there were more than 400 statutes that the president could use in an emergency in the seventies? Now that number is one hundred and thirty six.

Nick Capodice:
Wow.

Hannah McCarthy:
Thirteen of those require congressional approval. But the president can carry out one hundred and twenty three without getting permission from Congress.

Nick Capodice:
So of those that remain, what kind of powers are we talking about?

Kim Lane Scheppele:
Yes, under certain laws, the president actually has the power, for example, to call out the National Guard to deal with emergencies and to deploy even some military forces.

Hannah McCarthy:
The executive branch can suspend regulation on things like weapons acquisition and testing and handling, including suspending the prohibition on testing weapons on humans,

Kim Lane Scheppele:
Things like curfews or preventive detention. We actually saw this with the outbreak of these various kind of diseases that come into the U.S. with U.S. carriers, and then those people are quarantined for a while. That's a different kind of emergency power where suddenly somebody's civil liberties are suspended and they have to spend time in a hospital for a while.

Archival News Audio:
"And in Japan, the numbers of confirmed cases continue to rise on that quarantined cruise ship near Tokyo. This is the site of the largest outbreak outside of mainland China, and it's caused that ship to be under quarantine."

Hannah McCarthy:
The president can lift certain restrictions on disposal of medical waste in the ocean. They can overturn some legal protections for farmlands if those lands need to be used for defensive purposes.

Hannah McCarthy:
And here's one that stuck out to me. The Secretary of Defense can postpone annual assessments of harassment, violence and discrimination on the basis of sex. Gender, race or ethnicity? If it is not practicable during a time of war or national emergency,

Nick Capodice:
That it's, it's just so shocking to me because it feels like during an emergency we can throw out a lot of the ways we normally do things because there's an emergency. But I never knew it could be used to justify denying basic civil rights protections

Hannah McCarthy:
And just the fact that they thought to include that right. What's very telling is what is in here and what is not. Every one of these statutes involves political decision making, and this one strikes me as something that does not obviously contribute to some sort of defense strategy other than it means focusing less on workplace conditions of your employees, whereas the other ones, at least to me, have a clearer function. Even suspending weapons testing on humans, as nightmarish as that seems, has a clear, if horrifying, defensive strategy.

Nick Capodice:
So all of those things are weirdly legal under states of emergency, because what Congress has done is to provide this whole catalog of alternative legalities, so to speak, alternative legal powers that the president can invoke as long as he first says the magic words I declare a state of emergency.

Nick Capodice:
Did the National Emergencies Act limit how long a national emergency lasts?

Kim Lane Scheppele:
There are limits. The president has at most 12 months to have a state of emergency before it has to be renewed.

Hannah McCarthy:
These restrictions, by the way, also apply to economic sanctions under the EPA.

Kim Lane Scheppele:
But it turns out to be extremely easy to renew it, and you can renew these states of emergency indefinitely.

Hannah McCarthy:
After the terrorist attacks on 9/11, President Bush declared a national emergency quote by reason of certain terrorist attacks so that he could increase the power of our military by re apportioning money toward defense spending and changing people's military contracts

Kim Lane Scheppele:
To sometimes extend their terms of duty to sometimes refuse to allow them to retire or leave at the end of their terms if they're needed. In other words, it was a set of powers that had to do with his role as commander in chief. So that was declared right after 9-11, and every year since that time, the president, whoever the president is. Signs the continuation of that declaration of emergency.

Hannah McCarthy:
In the 20 years since September 11th, Bush, Obama, Trump and Biden have all extended this national emergency, which again allows the president and his secretary of defense to extend someone's military commitment or call them out of retirement.

Kim Lane Scheppele:
These are time limited, but the time limits are, shall we say, not terribly binding.

Nick Capodice:
How does Congress end a national emergency other than just hoping it's going to expire?

Hannah McCarthy:
The National Emergencies Act originally allowed Congress to end a national emergency through a concurrent resolution, which is when the Senate and the House passed identical resolutions that cannot be vetoed by the president. However, the Supreme Court ruled that this is unconstitutional in 1985, and the act was changed so that Congress needs a joint resolution to end a national emergency, which can be vetoed by the president.

Nick Capodice:
And I'm going to assume a president is pretty likely to veto an act that would limit their power.

Hannah McCarthy:
Yes, which means that in order for Congress to actually end a national emergency, both houses will likely need a supermajority. That's two thirds of the vote to overturn the veto.

Kim Lane Scheppele:
So it looks like Congress is kind of reining the president in which, you know, not a bad thing if you've got an out of control president. The problem is the reining in is not very serious. The president, whenever he thinks it's justified, can declare a state of emergency and then use powers that Congress has scattered throughout the laws to address the crisis.

Hannah McCarthy:
A recent example of this was Trump's declaration of a national emergency at the U.S. southern border in 2019.

Archival News Audio:
"This morning, the president plans to announce an end round around Congress, spending billions more on his border wall than Congress has approved."

Hannah McCarthy:
Trump wanted Congress to allocate money toward building a wall along the u.s.-mexico border. The fight between Trump and Congress over this funding led to a thirty five day government shutdown. Finally, Trump declared a national emergency to give himself the power to divert money that Congress had allocated to other places to border wall construction instead.

Nick Capodice:
We're the House and Senate able to pass a joint resolution to end the national emergency.

Hannah McCarthy:
Yes, but Trump vetoed it. And while the Senate was able to get a supermajority to override the veto, the House did not.

Archival News Audio:
"Two hundred and forty eight lawmakers voted to override, but that was thirty eight short of the two thirds majority needed. The emergency declaration along the southern border still faces..."

Hannah McCarthy:
The emergency only ended when President Joe Biden came into office, and in the meantime, billions of dollars of federal money was funneled into the construction of the border wall. Over the last 90 years or so, presidents have pushed against the checks placed on their power by Congress, and Congress has tried to push back.

Kim Lane Scheppele:
Emergencies are so routinely declared in the U.S. and they are so routinely used for this kind of messaging purpose where they're designed to say, you know, yes for handling things that we forget that they really are exceptions to normal law. And in some cases, they really are truly extraordinary exceptions to that to regular law. We shouldn't be comforted by the sheer number of states of emergency that exist at any one time in the United States.

Kim Lane Scheppele:
Surely, if this is a routine problem, you know you have some natural disaster and you have to get relief supplies across roads that otherwise would be closed or, you know, something of that kind. There's got to be some way we can handle that short of a generalized suspension of normal law.

Kim Lane Scheppele:
Because if you had really major states of emergency, which is to say massive civil liberties violation tanks in the streets, you know, all the kinds of things we associate with rogue government, for example, we wouldn't really have a way to theoretically distinguish it or to actually bring legal resources to bear to check it.

Nick Capodice:
What stands out to me from all this, Hannah, is that even after the National Emergencies Act, the use of emergency powers has just gone up. It feels like once Congress has defined what a president is and is not allowed to do when they declare an emergency, those powers have been more readily used. Well, that'll do it for today's episode on emergency powers.

Nick Capodice:
We hope you like that we didn't put any sirens in this episode. You know, we should have done it for like a joke, but is there anybody else who hates it more than anything when you're listening to something on the radio, in your car and the siren - drives me crazy. Anyhoo, this episode was written and produced by Christina Phillips. Well done, Christina, with help from me Nick Capodice and Hannah McCarthy. Our staff includes Jacqui Fulton. Rebecca Lavoie is our Executive Producer, Music in this episode by BioUnit, Chris Zabriskie, Blue Note Sessions, Broke for Free, Komiku, Little Glass Man, Maarten Schellekens, and Bobby Renz. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Archival News Audio: [00:02:20] "Immediately following the first attack, I implemented our government's emergency response"..."President Barack Obama has declared swine flu a national emergency"... "Now, not over the next 68 days, but right now"... "The bottom line is this we're in a national emergency. We need to act like we're in a national emergency."

Hannah McCarthy: [00:02:43] Nick, how common would you wager a national emergency is?

Nick Capodice: [00:02:49] A national emergency? Sounds like a very rare thing. Like it's it's reserved for emergencies. It's like break this glass, but only if there is an emergency.

Hannah McCarthy: [00:02:58] Currently in December 2021, when we are recording this, we have 40 active national emergencies.

Nick Capodice: [00:03:07] Forty!

Hannah McCarthy: [00:03:07] Yeah, and some of these emergencies have been active for decades. The oldest is from nineteen seventy nine and started after the Iran hostage crisis.

Archival News Audio: [00:03:17] "An embassy in Tehran is in the hands of Muslim students tonight, spurred on by an anti-American speech by the Ayatollah Khomeini. They stormed the embassy..."

Nick Capodice: [00:03:27] I mean, I assume we're not just talking about something that happened that seemed like an emergency at the time. This is an official codified term, right?

Hannah McCarthy: [00:03:35] Yeah, it's more than someone just yelling, "It's an emergency!" Actually, it's not too different from that, but it is that the president is the one yelling it.

Archival News Audio (Trump): [00:03:46] "To unleash the full power of the federal government in this effort. Today, I am officially declaring a national emergency..."

Hannah McCarthy: [00:03:53] And in doing so, invoking their quote "emergency powers." It is the political equivalent of, as you said, breaking the glass or like pushing the big red button.

Nick Capodice: [00:04:02] Have there always been so many emergencies going on at the same time?

Hannah McCarthy: [00:04:06] Ok, so you said that a national emergency sounds like it should be a rare thing, right?

Nick Capodice: [00:04:11] Yeah.

Hannah McCarthy: [00:04:11] And it used to be. In the last century, the president's use of emergency powers went from a rarity to a tool that presidents use dozens of times while in office, and they often extend into the next administration and the one after that. Our last four presidents have had 53 national emergencies between them. Clinton had 17, George W. Bush had 13. Obama had 12 and Trump had 11.

Hannah McCarthy: [00:04:41] But before we talk about how we ended up with dozens of simultaneous national emergencies, some decades old, we should talk about what emergency powers are and why they exist in the first place. I'm Hannah McCarthy.

Nick Capodice: [00:04:55] I'm Nick Capodice.

Hannah McCarthy: [00:04:56] And this is Civics 101. Today we are talking about the power that a president gets during a national emergency and how Congress has tried to put checks on that power.

Nick Capodice: [00:05:06] So what are emergency powers?

Hannah McCarthy: [00:05:09] I'm going to leave that up to Kim Lane Scheppele, the author of Law in a Time of Emergency, which is I really like that title. Virginia Prescott, the former host of Civics 101, spoke to her back in 2017.

Kim Lane Scheppele: [00:05:19] Emergency powers are used to override laws that would otherwise normally have effect, and actually it's also used to override some constitutional provisions that would otherwise have effect.

Hannah McCarthy: [00:05:34] Emergency powers are designed for moments when plans need to change and fast. And the president decides that they can't wait for the slow bureaucracy of Congress to act.

Kim Lane Scheppele: [00:05:44] For example, you know, presidents all the time declare national disasters or emergencies. If there are hurricanes, floods, giant snowstorms, you know various kinds of weather related emergencies, earthquakes would be another example. And when the president declares emergency powers, what the president can usually do is to take money that's been allocated for other purposes and redirect it to deal with the crisis that the country is facing at the moment.

Nick Capodice: [00:06:11] So an emergency allows the president to override certain laws and take money Congress at designated to one thing and use it somewhere else.

Hannah McCarthy: [00:06:20] Yes.

Kim Lane Scheppele: [00:06:20] Constitution 101 says that Congress must appropriate funds for specific uses. And so here you've got a case where the president sort of overrides that and takes money. Congress has put aside for one purpose and uses it for another purpose.

Nick Capodice: [00:06:37] Is there any law that defines what actually counts as an emergency?

Hannah McCarthy: [00:06:41] There is no strict definition of a quote unquote "emergency" in our constitution, but the understanding of how that word can be used has evolved over time. All a president needs to do is issue a proclamation and file it with a federal register announcing a state of emergency because of a specific reason. A hurricane. An attack of some kind. A pandemic.

Nick Capodice: [00:07:05] It sounds like emergency powers are a way for a president to push their agenda without having to work with Congress, as this always been sort of a tried and true workaround for navigating the wheels of Congress.

Kim Lane Scheppele: [00:07:19] Well, it used to be the case. If you go back far enough in American history, presidents would just declare emergencies on their own.

Hannah McCarthy: [00:07:27] Now, presidents weren't declaring emergencies with any regularity until the 1930s. It was right after the stock market crashed. It was the beginning of the Great Depression, and what happens is newly elected President Franklin Delano Roosevelt declares a Federal Bank Holiday.

Hannah McCarthy: [00:07:42] He closes the country's banks for four days, and this was the first step in the government reconstruction of our financial and economic fabric.

Hannah McCarthy: [00:07:51] Now, Roosevelt justified this move under the Trading with Enemies Act of 1917, which gave the president the power to restrict trade with enemies during wartime.

Nick Capodice: [00:08:03] This is 1933.

Hannah McCarthy: [00:08:04] Yeah.

Nick Capodice: [00:08:05] We weren't at war in 1933.

Hannah McCarthy: [00:08:07] No. But Roosevelt found a way to retroactively justify this act because at the time there were over 100 newly elected Democrats in Congress who also wanted to make radical changes to the banking system. Roosevelt asked Congress to pass a joint resolution that became the Emergency Banking Act, which not only gave the president the power to restrict trade in a national emergency, but also created 12 new Federal Reserve banks that could issue additional currency and stabilize the nation's economy.

Nick Capodice: [00:08:42] What it sounds like is that Roosevelt used an emergency situation as an opportunity to give the president more power to act in future emergency situations.

Hannah McCarthy: [00:08:52] Yeah, and he also used it to drastically change the banking structure in the United States and for the next two decades. T

Hannah McCarthy: [00:08:59] he list of things presidents justified doing in certain situations like wartime or an emergency kept growing and growing. Like President Truman's decision to send troops to South Korea without congressional authorization during the Cold War and President Johnson's escalation of America's participation in the Vietnam War

Archival News Audio (Nixon): [00:09:19] "To protect our men who are in Vietnam..."

Hannah McCarthy: [00:09:22] And then President Nixon came along

Archival News Audio (Nixon): [00:09:25] "And to guarantee the continued success of our withdrawal and Vietnamization programs. I have concluded that the time has come for action."

Hannah McCarthy: [00:09:36] During the Vietnam War, Nixon ordered secret bombings in Cambodia without alerting Congress, and Congress was not pleased.

Archival News Audio (Nixon): [00:09:45] "I would rather be a one term president and do what I believe was right and to be a two term president at the cost of seeing America become a second rate power."

Hannah McCarthy: [00:10:01] Don't forget there was something else that pushed Congress and Nixon at odds.

Archival News Audio: [00:10:05] "Watergate. The White House called it a third rate burglary, but it escalated into the worst political scandal in American history."

Hannah McCarthy: [00:10:15] In 1972, someone broke into the Democratic Party headquarters at the Watergate hotel, stole documents and bugged a phone. Nixon hampered the federal investigation into the break-in at one point ordering his attorney general to fire the special prosecutor, Archibald Cox, the very man who was investigating Nixon.

Archival News Audio: [00:10:38] "Half an hour after the special Watergate prosecutor had been fired. Agents of the FBI, acting at the direction of the White House, sealed off the offices of the special prosecutor. The offices of the attorney general and the offices of the deputy attorney general. That's a stunning..."

Hannah McCarthy: [00:10:55] Here's Kim Lane Scheppele again.

Kim Lane Scheppele: [00:10:57] Congress got a little bit nervous about exactly what presidents can do, especially when investigations are closing in on them, and the president seems to have no limits on the way the president can, shall we say, hold off those kinds of investigations.

Nick Capodice: [00:11:11] I think of this is kind of like the political equivalent of a snowball fight. It's all fun and games until that one kid starts packing his snowballs with rocks.

Hannah McCarthy: [00:11:20] Congress passed a number of reforms throughout the 1970s to rein in the executive branch, starting with the War Powers Act of 1973, which limited the president's ability to take military action without congressional approval. It was vetoed by Nixon. That veto was overturned. And during this period, a Senate inquiry found that there were more than 450 statutes that the executive branch could use when a president declares a state of emergency.

Kim Lane Scheppele: [00:11:54] Congress developed a series of laws that actually regulate presidential emergency powers.

Hannah McCarthy: [00:11:59] The result?

Hannah McCarthy: [00:12:00] Two acts that drew boundaries around presidential powers. The National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977. We'll talk about them right after this.

Nick Capodice: [00:12:47] Hannah, you said there were two acts that gave Congress more checks on presidential power. How did they do that?

Hannah McCarthy: [00:12:53] Let's talk about the International Emergency Economic Powers Act or the IEEPA first, because it defines a type of national emergency called economic sanctions.

Archival News Audio (Clinton): [00:13:04] "I am formally announcing my intention to cut off all trade and investment with Iran."

Hannah McCarthy: [00:13:10] Which make up 65 of the 71 national emergencies that have been declared since 1976. Here's Kim Lane Scheppele, the author of Law in a Time of Emergency,

Kim Lane Scheppele: [00:13:21] And under that act, the president can designate certain individuals and organizations for sanctions that they can't receive certain kinds of materials or funds from the United States, for example.

Hannah McCarthy: [00:13:32] And if there is an actual attack, the president can confiscate property connected with a country group or person that aided in the attack.

Nick Capodice: [00:13:39] How does that actually work?

Hannah McCarthy: [00:13:41] Trump's national security adviser, John Bolton, explains this process pretty well. So what happened is in twenty nineteen President Trump increased sanctions against Venezuela.

Archival News Audio: [00:13:50] "So basically one way to summarize this to a business, for example, is do you want to do business in Venezuela or do you want to do business with the United States?"

Hannah McCarthy: [00:14:01] The first national emergency declared under that law was that one from 1979 that we mentioned earlier. Jimmy Carter imposed economic sanctions on Iran after diplomats at the embassy were taken hostage. Those sanctions were lifted in 1981 as part of an agreement to release the hostages. But Reagan instated new sanctions in 1984 during the Iraq-Iran war, and we have had some form of sanctions against Iran pretty much ever since.

Nick Capodice: [00:14:32] Ok, the IEEPA defined economic sanctions on foreign enemies, but what about the other types of emergencies that wouldn't benefit from imposing sanctions on another country like hurricanes or floods, snowstorms or pandemics?

Hannah McCarthy: [00:14:48] This is where the National Emergencies Act comes in. One major thing this act did was to establish rules for what the president can and cannot do when they declare a national emergency. Remember how I said there were more than 400 statutes that the president could use in an emergency in the seventies? Now that number is one hundred and thirty six.

Nick Capodice: [00:15:10] Wow.

Hannah McCarthy: [00:15:12] Thirteen of those require congressional approval. But the president can carry out one hundred and twenty three without getting permission from Congress.

Nick Capodice: [00:15:21] So of those that remain, what kind of powers are we talking about?

Kim Lane Scheppele: [00:15:25] Yes, under certain laws, the president actually has the power, for example, to call out the National Guard to deal with emergencies and to deploy even some military forces.

Hannah McCarthy: [00:15:35] The executive branch can suspend regulation on things like weapons acquisition and testing and handling, including suspending the prohibition on testing weapons on humans,

Kim Lane Scheppele: [00:15:47] Things like curfews or preventive detention. We actually saw this with the outbreak of these various kind of diseases that come into the U.S. with U.S. carriers, and then those people are quarantined for a while. That's a different kind of emergency power where suddenly somebody's civil liberties are suspended and they have to spend time in a hospital for a while.

Archival News Audio: [00:16:06] "And in Japan, the numbers of confirmed cases continue to rise on that quarantined cruise ship near Tokyo. This is the site of the largest outbreak outside of mainland China, and it's caused that ship to be under quarantine."

Hannah McCarthy: [00:16:17] The president can lift certain restrictions on disposal of medical waste in the ocean. They can overturn some legal protections for farmlands if those lands need to be used for defensive purposes.

Hannah McCarthy: [00:16:29] And here's one that stuck out to me. The Secretary of Defense can postpone annual assessments of harassment, violence and discrimination on the basis of sex. Gender, race or ethnicity? If it is not practicable during a time of war or national emergency,

Nick Capodice: [00:16:50] That it's, it's just so shocking to me because it feels like during an emergency we can throw out a lot of the ways we normally do things because there's an emergency. But I never knew it could be used to justify denying basic civil rights protections

Hannah McCarthy: [00:17:06] And just the fact that they thought to include that right. What's very telling is what is in here and what is not. Every one of these statutes involves political decision making, and this one strikes me as something that does not obviously contribute to some sort of defense strategy other than it means focusing less on workplace conditions of your employees, whereas the other ones, at least to me, have a clearer function. Even suspending weapons testing on humans, as nightmarish as that seems, has a clear, if horrifying, defensive strategy.

Nick Capodice: [00:17:43] So all of those things are weirdly legal under states of emergency, because what Congress has done is to provide this whole catalog of alternative legalities, so to speak, alternative legal powers that the president can invoke as long as he first says the magic words I declare a state of emergency.

Nick Capodice: [00:18:03] Did the National Emergencies Act limit how long a national emergency lasts?

Kim Lane Scheppele: [00:18:08] There are limits. The president has at most 12 months to have a state of emergency before it has to be renewed.

Hannah McCarthy: [00:18:15] These restrictions, by the way, also apply to economic sanctions under the EPA.

Kim Lane Scheppele: [00:18:21] But it turns out to be extremely easy to renew it, and you can renew these states of emergency indefinitely.

Hannah McCarthy: [00:18:27] After the terrorist attacks on 9/11, President Bush declared a national emergency quote by reason of certain terrorist attacks so that he could increase the power of our military by re apportioning money toward defense spending and changing people's military contracts

Kim Lane Scheppele: [00:18:44] To sometimes extend their terms of duty to sometimes refuse to allow them to retire or leave at the end of their terms if they're needed. In other words, it was a set of powers that had to do with his role as commander in chief. So that was declared right after 9-11, and every year since that time, the president, whoever the president is. Signs the continuation of that declaration of emergency.

Hannah McCarthy: [00:19:09] In the 20 years since September 11th, Bush, Obama, Trump and Biden have all extended this national emergency, which again allows the president and his secretary of defense to extend someone's military commitment or call them out of retirement.

Kim Lane Scheppele: [00:19:24] These are time limited, but the time limits are, shall we say, not terribly binding.

Nick Capodice: [00:19:34] How does Congress end a national emergency other than just hoping it's going to expire?

Hannah McCarthy: [00:19:39] The National Emergencies Act originally allowed Congress to end a national emergency through a concurrent resolution, which is when the Senate and the House passed identical resolutions that cannot be vetoed by the president. However, the Supreme Court ruled that this is unconstitutional in 1985, and the act was changed so that Congress needs a joint resolution to end a national emergency, which can be vetoed by the president.

Nick Capodice: [00:20:04] And I'm going to assume a president is pretty likely to veto an act that would limit their power.

Hannah McCarthy: [00:20:09] Yes, which means that in order for Congress to actually end a national emergency, both houses will likely need a supermajority. That's two thirds of the vote to overturn the veto.

Kim Lane Scheppele: [00:20:20] So it looks like Congress is kind of reining the president in which, you know, not a bad thing if you've got an out of control president. The problem is the reining in is not very serious. The president, whenever he thinks it's justified, can declare a state of emergency and then use powers that Congress has scattered throughout the laws to address the crisis.

Hannah McCarthy: [00:20:41] A recent example of this was Trump's declaration of a national emergency at the U.S. southern border in 2019.

Archival News Audio: [00:20:47] "This morning, the president plans to announce an end round around Congress, spending billions more on his border wall than Congress has approved."

Hannah McCarthy: [00:20:56] Trump wanted Congress to allocate money toward building a wall along the u.s.-mexico border. The fight between Trump and Congress over this funding led to a thirty five day government shutdown. Finally, Trump declared a national emergency to give himself the power to divert money that Congress had allocated to other places to border wall construction instead.

Nick Capodice: [00:21:19] We're the House and Senate able to pass a joint resolution to end the national emergency.

Hannah McCarthy: [00:21:24] Yes, but Trump vetoed it. And while the Senate was able to get a supermajority to override the veto, the House did not.

Archival News Audio: [00:21:32] "Two hundred and forty eight lawmakers voted to override, but that was thirty eight short of the two thirds majority needed. The emergency declaration along the southern border still faces..."

Hannah McCarthy: [00:21:44] The emergency only ended when President Joe Biden came into office, and in the meantime, billions of dollars of federal money was funneled into the construction of the border wall. Over the last 90 years or so, presidents have pushed against the checks placed on their power by Congress, and Congress has tried to push back.

Kim Lane Scheppele: [00:22:09] Emergencies are so routinely declared in the U.S. and they are so routinely used for this kind of messaging purpose where they're designed to say, you know, yes for handling things that we forget that they really are exceptions to normal law. And in some cases, they really are truly extraordinary exceptions to that to regular law. We shouldn't be comforted by the sheer number of states of emergency that exist at any one time in the United States.

Kim Lane Scheppele: [00:22:37] Surely, if this is a routine problem, you know you have some natural disaster and you have to get relief supplies across roads that otherwise would be closed or, you know, something of that kind. There's got to be some way we can handle that short of a generalized suspension of normal law.

Kim Lane Scheppele: [00:22:57] Because if you had really major states of emergency, which is to say massive civil liberties violation tanks in the streets, you know, all the kinds of things we associate with rogue government, for example, we wouldn't really have a way to theoretically distinguish it or to actually bring legal resources to bear to check it.

Nick Capodice: [00:23:15] What stands out to me from all this, Hannah, is that even after the National Emergencies Act, the use of emergency powers has just gone up. It feels like once Congress has defined what a president is and is not allowed to do when they declare an emergency, those powers have been more readily used. Well, that'll do it for today's episode on emergency powers.

Nick Capodice: [00:23:48] We hope you like that we didn't put any sirens in this episode. You know, we should have done it for like a joke, but is there anybody else who hates it more than anything when you're listening to something on the radio, in your car and the siren - drives me crazy. Anyhoo, this episode was written and produced by Christina Phillips. Well done, Christina, with help from me Nick Capodice and Hannah McCarthy. Our staff includes Jacqui Fulton. Rebecca Lavoie is our Executive Producer, Music in this episode by BioUnit, Chris Zabriskie, Blue Note Sessions, Broke for Free, Komiku, Little Glass Man, Maarten Schellekens, and Bobby Renz. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

US vs: Two Party System

Since our founding, Americans have taken issue with political parties, as well as the system that ensures there shall only be two of them in power.

So what else is out there?

Today in our first episode of US vs, we explore how our democracy compares to others around the world. What are the pros and cons of the various systems? Is there a perfect democracy? And why are we talking so much about Street Fighter 2?

This episode features two professors of political science, Robin Best from Binghamton University and Guillermo Rosas from Washington University in St. Louis.

 

Transcript

Nick Capodice: You watch enough political speeches, Hannah, and it gets to the point you don't even hear it anymore.

: Oh, but don't let anyone tell you that America isn't great.

: I think we have to get back to what this election has to be about.

: Ok, listen, we this is the greatest country in the history of mankind. In the greatest nation on Earth. Thank you. I tell this story just to remind you of the magical, intoxicating power of America…

Nick Capodice: You're [00:00:30] listening to Civics 101, I'm Nick Capodice,

Hannah McCarthy: I'm Hannah McCarthy,

Nick Capodice: And today we are asking how we measure up against the rest of the world. It seems, Hannah, every few weeks we come up with another series on our show, but this is one I desperately want to revisit. It's called us vs. or U.S. versus where we compare other successful or sometimes unsuccessful governmental systems to our own. And today something we get asked about constantly the [00:01:00] two party system. Why do we have it? Can it change? And most importantly, how does our system compare to other democracies? And yeah, I'm doing like a whole street fighter two thing. This is the opening music to that, by the way.

Hannah McCarthy: What is streetfighter two?

Nick Capodice: It's a violent lesson in democracy, Hannah. Players pick a fighter who lives in a country somewhere in the world, and they fly around the world visiting other countries and do battle with other fighters there.

Hannah McCarthy: So it's an arcade game,

Nick Capodice: It's an arcade game.

You win! [00:01:30]

Nick Capodice: And right off the bat, I have to say that is ridiculous. There is no M. Bison to defeat at the end of this episode, but I do want to say one thing, and it's a fast, personal anecdote. Did I ever tell you about the play that I was in in New York that was really bad?

Hannah McCarthy: From what I understand, you were in a lot of really bad plays,

Nick Capodice: That's fair.

Nick Capodice: This one was one of the worst and I'm not going to name the director, but I was having a tough time in rehearsal one night because I didn't like any of the choices they were making, and I was upset [00:02:00] and a friend of mine, said Nick. No matter how bad you think a director is, they've got a better seat than you, and I'm never going to forget that.

Hannah McCarthy: Meaning you can't accurately critique your own performance because you're You.

Nick Capodice: Yeah.

Hannah McCarthy: So to take that lesson to heart for civics, it's hard to study American governmental systems when you're in them, you're basically on stage,

Nick Capodice: Right. So first, I'm going to explain why we have a two party system, but then we'll talk about the pros, cons [00:02:30] and how other democracies do it.

Hannah McCarthy: Hold on a second, nick. I can hear the gathering of pitchforks. There are other parties in the United States.

Nick Capodice: There are, there are many other parties. Keep the pitchforks in the barn. But I will say, as of this recording December twenty twenty one, every member of the House of Representatives is a Republican or a Democrat, and in the Senate there are two independents, but they always caucus with the Democratic Party. Of the seven thousand three hundred and eighty three seats in state legislatures. [00:03:00] Only 25 of them are held by members of other parties.

Hannah McCarthy: So while there are other parties, we are known internationally as a country that has a two party system.

Nick Capodice: Yeah, and to continue on that thread to put us in the US versus frame of mind, I talk to a specialist in that in comparative politics. Guillermo Rosas, he teaches at Washington University at St. Louis.

Guillermo Rosas: Comparative politics basically uses the comparative method to [00:03:30] say meaningful things about politics in general. And here the emphasis is in using a different, the domestic politics of different countries as data points, as observations that we can leverage to make general claims about political phenomena in general.

Nick Capodice: Guillermo told me that his students get very animated when he teaches the two party system because they are frustrated.

Guillermo Rosas: It's not that they are apathetic, but they certainly feel alienated [00:04:00] oftentimes, right? They see two options nowadays. It used to be that because I'm old enough to have to have had a student that are now in their 30s or 40s. There was a time when, you know, people complained that the parties were too similar, so there was no real option

Hannah McCarthy: When in modern history were the parties considered too similar?

Nick Capodice: Well, after World War Two, there was this era of political postwar consensus where policy had very [00:04:30] little to do with whether you had a D or an R next to your name. Most of the bills that passed in the nineteen fifties and sixties were with bipartisan support, and voters expressed frustration with the fuzziness of the two parties. They didn't know who to hold accountable or what it was their representatives even stood for.

Guillermo Rosas: Now, that's not the complaint. The complaint now is that there's certainly a lot of difference in the platforms of the Republican Party and the Democratic Party, but [00:05:00] that they feel too far away from these parties that they would like some other option that's closer to them. And that's a common complaint when you have a two party system. It makes sense, right? Two parties, two options. And of course, these are parties that are going to have to pack a lot of content in their platforms.

Hannah McCarthy: This is something that I have heard, not just from listeners to our show, but guests. I did an episode on Independence, and one guest said she considered being an independent to [00:05:30] be an act of noncompliance, a political statement of great importance.

Nick Capodice: Yeah, and I get that. We are at a moment right now of severe polarization. And if you told someone where you stood on a hot button social issue, they could predict the probability of where you stand on 20 other issues that aren't even related to it.

Hannah McCarthy: So you're saying there's frustration when the two parties are too similar. And also when they are too different, then why do we have it? Is the two party system in the Constitution? [00:06:00]

Robin Best: Yeah, that's a really good question. It is not enshrined anywhere in our founding documents.

Nick Capodice: This is Robin Best, professor of political science at Binghamton University, who also teaches comparative politics.

Robin Best: And in fact, there's nothing in the Constitution that needs that says that we have to have either a particular type of electoral system or a particular type of party system. The primary reason why we have a two party system in the United States is the electoral system that we use for many of our elections and almost all of our national [00:06:30] level elections, which is the single member district plurality method of election.

Hannah McCarthy: So I think many of our listeners know how we do elections in America, but they might not be familiar with that term. Can we define it?

Nick Capodice: Yeah. Single member district plurality method of election. SMP for short also called first past the post voting, it's a winner take all system, it's just how we do it. You live in a geographic district and in that district you vote for one elected official [00:07:00] like a senator, congressperson, and the winner is the person with a plurality of votes. We can't say majority because there are usually more than two people on the ticket. It's it's usually a plurality. So say the first place gets 40 percent of the votes. Second place gets 30 percent and the rest of the votes go to other candidates.

Robin Best: And whoever wins that district, whichever candidate wins that district wins the seat and the loser gets absolutely nothing. And what this does is [00:07:30] it really focuses political competition between two candidates, but also two political parties, so one political party could conceivably win the district seat and then there's a political party that kind of comes in second. It might be able to overtake the winner the next time around.

Nick Capodice: But this leaves those parties that came in third or fourth with little to no chance of winning over time.

Hannah McCarthy: And is this why you see candidates leave third parties and join one of these big two?

Nick Capodice: Yeah. I mean, if you're losing [00:08:00] over and over as a Green Party or a libertarian candidate, chances are you might change your affiliation to a D or an R. So you got a chance. And the same goes for voters. Hannah, if a voter keeps voting for that third party and they never win anything in this winner take all system, they too will start to align with the red or the blue. And it's this combination of systems that creates a law.

What is the law?

Nick Capodice: Duverger's Law. [00:08:30]

Guillermo Rosas: Duverger was very celebrated and with good reason as having come up with a statement that, you know for political scientists, basically has the force of law.

Robin Best: This is one of the closest things we have to a law in political science is deeper. So this was Maurice Duverger who expressed this relationship between a single member district plurality method of election and a two party system. So different law is very simply that [00:09:00] the single member district plurality method of election tends to favor a two party system. There is the law it on man. And it's for precisely the reasons that we've been discussing, so Duverger himself separated the process here into a mechanical effects and then a set of psychological effects,

Nick Capodice: That law says as long as we have winner take all single district plurality voting, it's a pretty sure bet that will [00:09:30] be in the two party system.

Hannah McCarthy: But that's not to say that we're going to forever be Democrats and Republicans. We have had a lot of parties over the years.

Nick Capodice: Oh, we sure have. Should we go through the list just for old time's sake?

Hannah McCarthy: Maybe we should get you a button that you press that just as classical music and carriage running down a cobbled street because it would save you a lot of time?

Nick Capodice: It's true.

Nick Capodice: George Washington was our only president who wasn't aligned with a party. He hated parties. That man saw a balloon on a mailbox he would drive right by. He would see [00:10:00] them start to form during his administration. But in his farewell address, he excoriated parties. He said the spirit of parties "serves always to distract the public councils and enfeebled the public administration. It agitates the community with ill founded jealousies and false alarms. Kindles the animosity of one part against another. Foments occasionally riot and insurrection." But they happened right away. We started with the Federalists, led by Alexander Hamilton [00:10:30] and the anti-Federalists, led by James Madison and Thomas Jefferson. The anti-federalists start to go by the Democratic Republicans, The Federalists die out around the War of 1812 and the Whigs rise to take their place. The Andrew Jackson led Democrats come to contend against the Whigs, the Republican Party branches off the Whigs and grows into power to battle the Democrats. And from 1854 to now, it has been two parties, Republicans and Democrats,

Hannah McCarthy: And I have to add what those parties stood for changed an awful lot over one hundred and fifty years. [00:11:00] We've done episodes on the Republican Party and the Democratic Party if anyone out there wants the full story on realignment. But I can't help but wonder, is there a possibility of fulfilling George Washington's fantasy? Can we exist without parties at all?

Nick Capodice: It seems improbable, Guillermo told me about a famed political scientist named Eric Elmer Schattschneider, who said that contemporary representative democracy is really not even imaginable in the absence of parties. [00:11:30]

Hannah McCarthy: Why?

Guillermo Rosas: Let me see if I can put this encapsulate this in a one minute elevator pitch. I may fail. But the best explanation is that once you have representatives in Congress, you are selecting people that come from geographically circumscribed territories. So there is in principle, no reason why people that show up in Congress or in parliament the first time have some sort of pre-built allegiance to a particular party, right? However, once they once they show up, they [00:12:00] realize that they are going to be there for a while, right? Their terms, their terms vary from two years to three or four whenever the next election is, and that they are going to have to be passing laws and building coalitions.

Nick Capodice: And if you want to succeed, if you want to get laws passed that your constituents love, and don't forget, if you want someone to bankroll your campaign, you align with one of these coalitions. You may not agree with them all the time, but you do most of the time.

Guillermo Rosas: The [00:12:30] dirty secret is that politicians themselves know that they are tying their hands when they enter into a party, right? They are tying their hands, and they are oftentimes called to do things that they do not necessarily believe are in their best personal interest. But they trade this off for the opportunity or for the predictability of belonging to a to a to a coalition that they understand

Hannah McCarthy: Parties in politics, two parties in America. They are here [00:13:00] and they're here to stay. But is that a good thing or a bad thing?

Nick Capodice: Well, we'll talk about that as well as how we measure up to other countries right after the break.

Hannah McCarthy: But first, if you want to read about how the parties changed as part of a complete primer on how America works. Check out our book A User's Guide to Democracy. It has got the 101 on everything and is peppered with wonderful cartoons by New Yorker cartoonist Tom Toro.

Nick Capodice: Also, we got a fun, goofy free newsletter called Extra Credit. Let [00:13:30] us say hello in your email every two weeks and tell you about the stuff we cut out from our episodes. Subscribe at civics101podcast.org.

Nick Capodice: We are back and don't forget Civics 101 is always free to listen to but thrives on listener support. Please contribute to civics education with a donation at Civics101podcast.org. All right, so we got our hands up, they're playing our song, it's two parties in the USA.

Hannah McCarthy: Ok, now to the U.S. [00:14:00] versus do any other countries have a system like ours?

Nick Capodice: Here's Robin Best again.

Robin Best: It's really fun to teach American students about comparative politics because you learn how weird the U.S. is. The U.S. is actually really strange and unique on a number of dimensions. And the two party system is actually in this day and age, quite rare as well.

Nick Capodice: There are a few countries that have a system where the same two parties are vying for seats like us, notably Jamaica, the Bahamas [00:14:30] and Zimbabwe. And there are other countries that vote like we do, but don't have a two party system.

Robin Best: Some of the other countries that have, that use single member district plurality elections like Canada or the United Kingdom. They have very significant third parties that manage to enter their national legislatures, and we just don't. And one of the reasons why you might think that's the case is you might say that instead of two parties, we actually have one hundred.

Nick Capodice: And here is where we are truly one of a kind. Political parties in the U.S. [00:15:00] are organized on a state by state basis.

Robin Best: So you could think of the U.S. is having like a New York state Democratic Party and then a Texas Democratic Party or New Hampshire Republican Party and a Colorado Republican Party, and that you actually get some ideological and strategic differences between the party organizations by state. So the U.S. is actually quite unique in the structure of its party system, not only because it's a two [00:15:30] party system, but again because these parties are kind of they're very large, their umbrella parties. And because of that, they can mask a lot of underlying variations, a lot of which take place at the state level if

Hannah McCarthy: The two parties are Umbrella's, each encapsulating 50 state parties. I can see true federalism at work. A country where people are frustrated that they're Democrat or Republican Party isn't necessarily repped at the federal level.

Nick Capodice: It's a good point.

Hannah McCarthy: So let's get into it. Give me a country [00:16:00] that does it differently.

Nick Capodice: You got it. Here is Guillermo Rosas again, with Germany

Guillermo Rosas: In Germany, there probably are five to six parties represented in the in the Bundestag.

Nick Capodice: Germany has a multi-party system. They are a federal parliamentary representative Democratic Republic. The Bundestag, which he mentioned, is their federal parliament and members of it are elected by the German people. There are 736 seats in the Bundestag. Indeed, divided by six parties.

Guillermo Rosas: So there is in principle there's there's [00:16:30] something for everyone, right? You can you can feel very close to a particular party, but it is not entirely. It is not entirely obvious to voters what kind of governing arrangement they are going to get after all of the bargaining is done once the election has taken place.

Nick Capodice: And that's not the case in the U.S. Sure, we have moderates and far left and far right politicians, but they're [00:17:00] all aligned under a majority umbrella. In contrast, when you have a lot of parties, something for everyone, and there's no clear majority, how is anyone going to get legislation passed? Only through working with other parties. Sure, I'll sign your clean energy bill, but only if you add X, Y and Z and then you sign my bill, which may be your constituents are going to hate.

Hannah McCarthy: So the trade off here is that you can elect someone who lines up exactly with what you [00:17:30] want a member of your very specific party, but you have no idea if they're going to succeed at getting anything done.

Guillermo Rosas: And the corollary of that is that it's also going to be more difficult for you as a voter to know exactly who you whom you need to hold accountable for things that you dislike.

Hannah McCarthy: Ok, that's an example of a multi-party system, is there such a thing as a one party system,

Guillermo Rosas: Most one party systems are occurring [00:18:00] in countries that are not democratic. Right. So China is a one party system. Cuba is a one party system. Vietnam is a one party system. There are other systems, more and more so we in political science were moving away from a strict dichotomous division between authoritarian countries and democratic countries. Think about the United, United Russia in in Putin's Russia, right? That would also be a competitive, authoritarian regime where other parties cannot take representation in the Duma. [00:18:30] But you know, it's it's a it's a pretty it's a pretty hegemonic presence of of the of the main party.

Nick Capodice: The State Duma is Russia's elected legislative body, and of its four hundred and fifty members, 326 are the United Russia party.

Hannah McCarthy: Okay, we're not going to get into the pros and cons of non-democratic or authoritarian systems in this episode, but I will say, ah, it's pretty effective.

Nick Capodice: Yeah, it's easy to get stuff done if you just do away with elections and democracy [00:19:00] and representatives. A lot less gridlock.

Hannah McCarthy: I think I understand the pros and cons of two party versus multi-party. Two party systems like ours are relatively easier to govern. One party is in power for a while and they can get laws passed until the other party wins control. And the downside is a lack of choices. You've got two ways to address every issue in America, and multi-party systems offer more diversity of thought, [00:19:30] but have more trouble passing laws and there's less accountability.

Nick Capodice: That's a pretty good summation, and I think Guillermo and Robin would both be proud of it.

Hannah McCarthy: I bet Guillermo wouldn't say being a political scientist and all, but did he give any hint of what he thinks is the best of these democratic systems? Is there one that surpasses all others as champion?

Guillermo Rosas: Many students, especially the young ones, believe that somewhere out there there is a perfect political system that [00:20:00] has the right amount of parties that has the right configuration to allow laws to be passed effectively and implemented with some good sense. And it is true that I think some systems are better than others, but that that's a holy grail, right? I mean, it's well, it's not a search that we have a clear final goal where you're going to find the perfect system.

Nick Capodice: And I dared ask him, Guillermo, [00:20:30] I know there isn't a perfect system, but if you had to pick, which country do political scientists think is closest to that holy grail?

Hannah McCarthy: Did he choose one? He did. What was it?

Nick Capodice: Spain,

Hannah McCarthy: Spain?

Nick Capodice: Spain!

Guillermo Rosas: Spain would be kind of the place that people had in mind. And you know, if you have been following politics in Spain, it's anything but [00:21:00] placid, right? There's also a lot of problems. It's complicated. But the argument there would be that the way that Spanish voters send representatives to the courts to their parliaments is that they are also divided geographically.

Nick Capodice: I'm going to try to break down how Spain does it, and I hope we don't make a hash of things. But Spain is divided into 50 provinces and each province elects members to Spain's Congress called the general courts. The more people that live in a province, the more seats it sends to the courts.

Hannah McCarthy: It sounds a lot [00:21:30] like our own congressional districts,

Nick Capodice: Yes, but with two massive differences. They do not use the SMP winner take all method. They use a proportional method and the people don't vote for individuals. They vote for a party that has a pre-selected list of candidates. As an example, let's take Cadiz, that Old Town on the southwestern coast, Cadiz sends nine people to the courts. In their 2019 election, the Spanish Socialist Workers Party got 30 percent of the vote and thus [00:22:00] won three seats. The conservative Vox Party got 20 percent and they sent two people to the courts, and so on.

Guillermo Rosas: So what does that buy you? It buys you on in terms of the alienation that we've been talking about. It buys you the fact that you have more parties with, with more with more diverse platforms all over the spectrum, from far left to far right that you can choose from. So that's nice. At the same time, you are not fragmenting [00:22:30] the the the the assembly or the parliament all that much. After all, there's only so many ways in which you can divide eight votes, right? Even you have 14, 40 parties competing, most of them are not going to get a lot of representation.

Nick Capodice: Some political scientists say that Spain's system hits that sweet spot

Guillermo Rosas: In which you are obtaining some of the advantages of a system like the United States where you know who your Congress representative is. Where you know the Congress representative spends a lot of time [00:23:00] in in close to the constituents develops a home style. Once these babies and shake hands and talk to people and all of that and the advantages of the more proportional systems that we tend to find in continental Europe, where there is more possibility for different interests to be represented.

Hannah McCarthy: All right. My last question is how do we measure up? Who wins in this us versus.

Nick Capodice: Now I am not saying [00:23:30] if we want to go back to the Street Fighter two reference at the beginning that we should all choose Vega instead of Guile.

Hannah McCarthy: I think maybe one percent of our audience is going to get that reference.

Nick Capodice: Fair. That's fair. Guile is from the U.S. everyone, Vega's from Spain. But Spain is by no means a consensual nation. Politically, they've got divides and problems like we've all have divides and problems. But to know how the U.S. would do in a comparative matchup against Spain, Guillermo said, We can't. We have to wait and [00:24:00] see.

Guillermo Rosas: You know, the American Two-Party system has has its problems. I'm not going to stand here and say otherwise. But it also I I what I like about it is that it provides ample opportunity to build relatively lasting majority coalitions. I think we are going through a period in American history in which this is not quite working out because we seem to be in the middle of a process of realignment [00:24:30] where the two big parties are trying to figure out how they are going to capture constituencies that they didn't used to represent. And I think it's going to take a while for the parties to sort this out. But what? I like the two party system because of that, right, it's especially in a country that's as heterogeneous as the United States.

Nick Capodice: And in this liminal space of a realignment, the two big parties are looking to their constituents and deciding what their new platforms are, [00:25:00] what the party stands for. And once we get through this phase of what Guillermo referred to me as growing pains, only then can we better assess how we measure up on a global scale.

Hannah McCarthy: And until then, I'm sticking to Tekken.

Nick Capodice: [00:25:30]

Nick Capodice: That'll do it for a two party party cause a two party party is a party I like, this episode was produced by me Nick Capodice with Hannah McCarthy. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and in charge of all social media related to Get Back. Music in this episode by Electroswing, Creo, Bio Unit, George Gaskin that’s this guy, Ari Di Niro, Scott Holmes, Yoko Shimomura who is the brilliant composer of the music to Street Fighter 2, and that composer who didn’t write bobe made a kishke, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Diplomacy

The United States charges nearly 8,000 people with being good at relationships. These are our diplomats, or Foreign Service Officers. These are the people who make us look good, make sure the world gives us what we want and need and try to keep tensions at a minimum.

To try to understand how this nuanced job actually works, we speak with Alison Mann, Public Historian at the National Museum of American Diplomacy and Naima Green-Riley, soon-to-be professor of Politics and International Affairs at Princeton and former diplomat.

 

: Audio automatically transcribed by Sonix

Diplomacy.mp3: this mp3 audio file was automatically transcribed by Sonix with the This transcript may contain errors.

Hannah McCarthy:
Hello, everybody. Before we get started, some very quick and exciting news for you all. Civics 101 is now a weekly show. That's right. You might not have noticed, but before we were only coming out every other week, you will finally have a brand spanking new Civics 101 episode in your feed every single Tuesday. We recently joined Stitcher, and this is allowing us to do that much more for our listeners and learn so much more about American government. There are so many stories for us to explore, so many questions for us to answer, and now we're going to be able to do an even better job of that for you. So stay tuned. Keep listening and check for a new civics one one episode weekly in your podcast feed.

Hannah McCarthy:
Nick, earlier today I asked you, what do you think of when you think of a diplomat and before you answered, you did a little bit for me. Do you remember what you did?

Nick Capodice:
Yeah, I do.

Hannah McCarthy:
Can you do that again?

Nick Capodice:
Diplomats are kind of like, I'm a fancy lad, I'm super fancy. I solve problems around the world.

Hannah McCarthy:
The reason I liked that, the reason I'm bringing it up now is because prior to about two weeks ago, if I thought of diplomats at all, I thought of fancy well-heeled people, mostly men in suits who hobnob with other fancy well-heeled men in suits like polo matches and brandy mixed with international intrigue due in part, I think to Hollywood. I mean, have you ever seen the movie the ambassador with Robert Mitchum? It's pretty dramatic. The ambassador, he's through negotiating anyway. It's not accurate. I'm ashamed.

Nick Capodice:
I also have this sort of vague idea of diplomatic immunity, meaning you can commit any crime and get away with it. But I imagine that's probably not true.

Hannah McCarthy:
Actually, it's that's a little bit true.

Nick Capodice:
Really.

Hannah McCarthy:
Depending on your rank, you might have carte blanche immunity unless the U.S. decides to take it away or hand it over to other authorities, which they do. Diplomatic immunity is fascinating.

Nick Capodice:
Fascinating.

Hannah McCarthy:
But let's start with the basics, shall we? This is Civics 101, I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And today we are talking about the subtle system that attempts to keep our global relationships at a low simmer and fix them when they boil over.

Alison Mann:
Diplomacy is a practice. It's not foreign

Alison Mann:
Policy.

Hannah McCarthy:
This is Dr. Alison Mann, the public historian at the National Museum of American Diplomacy.

Alison Mann:
Foreign policy is the directive and the foreign policy for your listeners. This is set by the administration. This is set by Congress, the administration and then formally our nation's diplomats. They will carry out that foreign policy through the secretary of State.

Hannah McCarthy:
Carrying out foreign policy means representing American interests to other nations and keeping things peaceful and prosperous. Diplomats establish and maintain trade and economic relations and keep an eye on politics abroad and try to keep the peace.

Alison Mann:
It's about relationships, it's about building those relationships and building trust. And I think that's the greatest, that's the greatest that they have in their toolkit. And a diplomatic toolkit is building those relationships. And how do you foster that relationship to withstand a period of time today?

Hannah McCarthy:
Those relationships are built by people in the five different what are called cones of diplomacy of the State Department. And Nick, I'm going to run through them real quick. Are you ready? Absolutely. There's public diplomacy promoting U.S. interests abroad through all kinds of engagement and cultural exchange. There are counselors, the people who provide services to Americans abroad, passports to Americans and visas to foreign nationals. There are economic officers who build and maintain positive trade and economic relations with other countries. There are political officers who keep a constant eye on politics in other countries and interpret them for the United States. And then finally, there is the management track. These are the people who are leaders at embassies. If you pass the test interviews and security clearance, you get to choose one of these tracks and then eventually you get an assignment.

Nick Capodice:
I'm going to bet American diplomacy has not always been so comprehensive and organized.

Hannah McCarthy:
There's quite right. Thomas Jefferson was our first secretary of state, and he had six people working for him. Today, we have around eight thousand diplomats, otherwise known as Foreign Service officers. But American diplomacy nick, it started long before Jefferson and his tiny fledgling department came along.

Alison Mann:
I would say the white American colonists had been practicing diplomacy even while they were British colonists.

Nick Capodice:
I mean, if we're going to talk about relationships with other nations, I want to know how diplomacy was done with the nations who are already here in North America. When the colonists arrived,

Hannah McCarthy:
Well, let's look at it from the peaceful and prosperous angle that I brought up, right? That works best when two nations can meet in good faith with the intention of relationship building. In the case of Native Americans, the colonists did not see those complex sovereign nations as complex sovereign nations. So even as tribes played the role of trading partners and allies in war, the skill of Native American diplomats was perpetually undercut by European and colonial prejudice. Colonial diplomacy with the French and Spanish, who were in North America was very different, and things got even more complicated when those colonists ceased to be British subjects.

Alison Mann:
In 1776, that's when they realized they now had to do it as United States citizens, and how are they going to do that? So if you read carefully the Declaration of Independence, it's really not only just an internal document, it's a declaration to the world and it is making that case for global recognition. And then you need allies, right? So almost immediately, the Continental Congress dispatched Benjamin Franklin, Arthur Lee and Silverstein over to France, which would be the natural ally of the Americans to try to broker an agreement of recognition.

Nick Capodice:
It is fascinating to think of the United States as a nation that's scrambling for recognition and connection at the global scale. We've been a quote unquote superpower for so long.

Hannah McCarthy:
I know, but it wasn't really until the major world wars that the U.S. fully took on that label. Allison told me that the museum has these diplomatic simulations that allow people to play out negotiations and, for example, the first Barbary War in the early 19th century.

Nick Capodice:
Diplomatic simulations.

Hannah McCarthy:
This is speaking to your game love.

Nick Capodice:
Can we do this?

Nick Capodice:
Can we do the Barbary, the Barbary Pirates?

Hannah McCarthy:
Yeah, I'll do it later today.

Alison Mann:
All right. Usually the facilitator will divide them up and be like, OK, well, you're going to play this country, you're going to be the United States. And so the students are like United States. It's like, Yeah, Big Dog here, you know, and they reach in the materials and they're like, Oh, wait, a second, we actually have the least to work with here, especially the 18th century system where they don't really have that much, they don't have the upper hand. And that is so fascinating to to watch the students and then the students who are playing the other stakeholders to be like, Oh, wow, we have the upper hand here. And then they go into those negotiations with a little bit more confidence. So that's been really fascinating to watch. It was, you know, decades of decades and decades and decades of, you know, learning where where was the United States place in the world.

Hannah McCarthy:
For example, Nick, speaking of our place in the world, the United States shouts into the global void Hey, we're our own country now. And this is a tense moment because not only is this treason? It also doesn't mean much until other countries agree. So who would you guess was the first nation to shout back? Yes, indeed. United States, we recognize you. You are a country.

Nick Capodice:
I'm going to say because of our search for an ally in our early founding years, France.

Alison Mann:
Morocco was the first country to recognize the United States. It was not France. It was Morocco. The relationship between the United States and Morocco is the longest standing, unbroken relationship in American history. And it's over two hundred and thirty years old now, Mohammed, the third said. This is great. We have a great trading partner that we can. We can, we can box out Europe now like we're all for it. Excellent. So it was Morocco that was really like, yeah, we totally recognize the United States of America. But for the United States to go to France, it was really about the military support. It was about the global recognition and the fact that they felt very strongly that other European nations would follow suit. But within all of that is that layer of the negotiation with Native American, these sovereign tribes.

Hannah McCarthy:
But like you guessed, Nick, we did end up getting recognition from France as well. And in that case, it was really about needing military support for the Revolutionary War and hoping that if France recognized us, then other European nations would, too. And it wasn't just nations abroad that we needed something from.

Alison Mann:
In 1778 that crucial year of alliances when there was a brief moment of parity between the United States efforts of diplomacy with France, but also with the Lenape tribe in current-day Ohio kind of western Pennsylvania, the United States understood very well that they needed an ally in this native nation to pass freely through those lands to prosecute the war. But they also floated around the idea of creating a sovereign Lenape state within the United States of America, possibly being a 14th state when the United States was able to conclude the war. And it's interesting then, to see how the relationship with the French strengthened, but very quickly that that agreement that was signed at the Treaty of Fort Pitt in September of seventeen seventy eight dissolved a month or two later because of violence against the Native Americans.

Hannah McCarthy:
By violence.

Hannah McCarthy:
Alison means members of the continental militia continuing the attacks and murders of the Lenape people that had been going on. Prior to this peace treaty, and this highlights an important factor of American diplomacy, two governments can make all of the agreements and treaties they want, but citizens of those governments have to play along for the agreement to mean something. In the case of the Treaty of Fort Pitt, a treaty essentially establishing a formal alliance between the Lenape and the U.S. government. U.s. citizens went on to murder members of the Lenape tribe, not on the order of their government, but of their own accord. Still, it showed the Lenape that the U.S. could not effectively stand behind their alliance, and so that alliance dissolved.

Nick Capodice:
And speaking of American citizens breaking ranks. Tell me about diplomacy during the Civil War in the U.S. because we have this chunk of a country which is trying to secede. So how did other nations react to that? Were we communicating with them about it at all?

Alison Mann:
You know, something that's really fascinating to for our audience when they always learn like, wow, the Confederacy had diplomats were like, Yeah, because much like the United States, 80 years before, the Confederacy recognized that they only exist as far as the world sees them as existing. So they lobbied very hard for the British and the French to recognize them as independent from the United States of America and the United States. In their best interest was to prevent that from happening.

Nick Capodice:
I had no idea the Confederacy had diplomats, but it makes perfect sense. They're trying to, because they're trying to form their own country.

Hannah McCarthy:
Yeah. And for the record, there were people in Europe who were like, Hey, wait a minute, didn't you? United States just secede? And now you're telling people in your own country, No, you're not allowed to secede that that was one of the powerful talking points of the Confederacy.

Alison Mann:
Early on in eighteen sixty one, after the violence had begun, the Confederacy dispatched a couple of guys over to Great Britain, Great Britain, it said, We're neutral like we're just, we're waiting, you know, which infuriated the United States because is neutrality really neutral by the fact that you're saying you're neutral? Aren't you kind of taking their side because that means that you'll still do business with them like you can't do that? You know,

Hannah McCarthy:
It was a fine diplomatic balance because confederates know that Europe is reliant on American cotton, so they appeal to that trade issue in Great Britain and France are lured by that. Meanwhile, union diplomats are just scrambling madly to keep Europe neutral to make sure that Europe is not siding with anybody. And by the way, union diplomats are pushing the problem of secession. Not the problem of enslavement. It fell to American abolitionists, not official diplomats, to represent the most important cause of this national rift.

Alison Mann:
And so there was a woman. Her name was Sarah Parker Redman. She was an African-American woman who went on a speaking circuit in eighteen fifty nine throughout Scotland and England, and she spoke to the working classes and she spoke to them about the cotton that they were touching, that they were making in the textile mills. And she appealed to them based upon their common humanity, which is a just a diplomatic skill that is so important is to appeal to common humanity. And she was so effective in Manchester that workers, the textile refused to touch the raw cotton that they knew had come from the South. So that was a way that an American citizen was able to actually influence political decision making over in Great Britain.

Nick Capodice:
So while you had official diplomats trying to sway heads of state one way or another, here's this woman talking to fellow laypeople getting to the heart of the matter.

Hannah McCarthy:
And that subtlety, Nick, you know, like appealing not just to the heads of state, but to the rest of the people of a country. This is a vitally important aspect of diplomacy that took a long while for the United States to refine. After we managed to preserve the union, we started to grow rapidly as a nation and things really hit a fever pitch when the First World War rolled around. And then the second, as we became true powerbrokers on the global scale repping the U.S. became an increasingly complex dance because yes, it is about having good trade and economic partners who will help you. Should a war break out. But it's also about showing the world what America is like and making sure the world likes us. That's coming up after the break.

Nick Capodice:
Hey, we really love what we do, and we're really lucky to do it, and Hannah and I say this all the time, we say that we would do it for free if we were independently wealthy and tragically, the rich estranged uncle I never knew has yet to leave his entire state to me. Ditto for Hannah. So instead, we must work for money, for lucre. And in the case of Civics 101, that money comes in part from listener donations. So if you are a kindly soul who is able to make a contribution to the show, we would be so grateful. And you can do that by clicking the donate button at Civics101podcast.org. And if you are my rich, estranged uncle I don't know about, I live in Concord, New Hampshire, and I would love to cook for you. Let's get back to the show.

Hannah McCarthy:
In 1949, President Harry Truman did something unprecedented in the world of diplomacy. He appointed a woman. Eugenie Anderson as the U.S. ambassador to Denmark. Here's Alison Mahon, public historian at the National Museum of American Diplomacy.

Alison Mann:
She's a really fascinating figure. She was politically appointed to an ambassadorship by President Harry Truman, and she is our first female ambassador.

Eugenie Anderson:
That we have no choice but to build up

Eugenie Anderson:
Our defenses and to help our

Eugenie Anderson:
Allies to restore their defense forces.

Alison Mann:
But she was an early practitioner of what she called people to people diplomacy. There really wasn't that idea that the diplomat would go out among the people, right, that when they were over the stationed in there, they talk to their foreign counterparts, like they talk to the foreign affairs minister. They talk to us. But you didn't like walk around the street, you know, and talk to the people. But Eugenie Anderson said, Well, I'm going to go talk to the people. So she made it a point to learn Danish before she went to Denmark, and she would go and visit the fish market, and she would talk to the people in their own language and just get on that very basic person to person level. And in that way, building the trust of the people of the country and at the same time, advocating for the United States of America.

Hannah McCarthy:
When I asked Alison about her favorite diplomats, I heard stories like this. People who represented shifts in American diplomacy, who innovated new ways of communicating with other nations. This form of diplomacy that Alison is talking about, quote unquote public diplomacy. The State Department did not make that a part of its mission until the late 90s.

Nick Capodice:
So you you started this episode by saying you were ashamed to stereotype diplomats as fancy men with suits and brandy snifter who operated behind closed doors. But it also sounds like until very recently, it kind of was that way.

Naima Green-Riley:
Historically, the State Department has not been very diverse. The State Department is a place where until 1971, if a woman was a Foreign Service officer and wanted to serve abroad, she could not be married. And as soon as she got married, she had to resign at. The State Department is a place where the three primary adjectives to explain diplomats for many years 50 years ago, for example, were pale male and Yale. So it's a place where there was often a huge homogeneity of the diplomatic corps.

Hannah McCarthy:
This is Naima Green-Riley soon to be Dr. Naima Green Riley and a professor at Princeton. She's currently completing her PhD at Harvard and writing about diplomacy. She also happens to be a former diplomat who worked in public diplomacy.

Naima Green-Riley:
I often felt like on the ground I could bring my personal experience to the job, and that was important to me because America is a diverse place where sometimes people in the country have very different views from mine. At the same time, there weren't enough, and there still are not enough people who are able to do that within the diplomatic corps. And to the extent that we can increase the diversity of the State Department, I think that we'll get people abroad. We'll get a better idea of really what it means to be American and its full sense of diversity and its full and its full spectrum

Hannah McCarthy:
Name is first diplomacy job was in Egypt.

Naima Green-Riley:
I got assigned to Egypt in late 2010, and shortly after I was told that I was going to Egypt for my first tour, a little thing called the Arab Spring happened

Hannah McCarthy:
And right away. This was an opportunity where sharing her personal experience in and of America was an asset.

Naima Green-Riley:
And my own experience as a black woman at the time when I was a diplomat as a pretty young black woman, had a huge impact on how I had experienced being an American and so going abroad, I found that I was able to bring those experiences to the table in order to set up programing. So there were times when we talked about the civil rights movement and protests that happened during the civil rights movement in the context of an Arab Spring in which you see people who are struggling to gain greater rights in both situations. There were times in which I had a soul food dinner and I got to introduce Black Eyed Peas and collard greens and fried chicken to schoolkids and in Egypt. There was a time when we did a Soul Train line in China. And so one thing that was important to me when I was a diplomat was to be able to share what my experience was as an American. And I think that that is actually something that many diplomats aim to do.

Hannah McCarthy:
I read this government report assessing public diplomacy. Think this was in 2005? Ok? Really recent. And it says that in this changed world, public diplomacy is as important as foreign policy and that. The State Department needs to do an even better job of it. But, you know, to me, that principle was evident back when Sarah Parker, Redmond, told mill workers in England the horrifying truth about where their cotton came from, the way other countries have perceived us has always mattered since our earliest days as a country. So yes, diplomacy is about conversations, about sharing, about making sure the U.S. knows what's going on politically and economically elsewhere, and making sure our interests are not compromised abroad. But it's also about desirable culture. Does your country have the it factor that's going to make people like it? Do your ambassadors represent that? Naima and I talked about this thing called soft power,

Naima Green-Riley:
The concept of soft power. Originally came from academia and I have now left the State Department. I've gone into an academic role. I'm about to start a role as a professor at Princeton, and I've had a lot of time to think about what public diplomacy is from an academic standpoint and how it seeks to to capture soft power. So soft power is this term that was coined in the late 80s early 90s by professor at Harvard named Joe Nye. And the idea is that through being attractive through things like it's entertainment industry or its fashion industry or its music industry, a country can somehow gain some sort of credit internationally that will translate into helping it to be more persuasive, helping it to get what it wants internationally. And so another way to talk about soft power is to say, if you're cool, if your country is cooler, then you'll get brownie points and those brownie points will help you to gain something tangible in international politics. That's that's the way the concept works.

Nick Capodice:
Wow. So there is such a thing as being the cool kid, even at the global level.

Hannah McCarthy:
Yeah, there is. But you don't become the cool kid overnight. You don't develop strong international relationships overnight. You don't create or de-escalate conflict overnight. You don't establish a desirable culture overnight. One major takeaway for me about diplomacy is that it is a long game. It is the long game.

Alison Mann:
It's the skills. It's the tools. It's the getting to. Yes, it's the getting to. Maybe. And to understand that there really is no quick fix that what we see kind of evolving over the course of time is just very lengthy relationship building of the work of our nation's diplomats, you know, to get to that point that we don't see, quite frankly, you know, the work of the diplomacy and our diplomats is quiet often.

Hannah McCarthy:
Nick, you know, I struggled in this episode to pin diplomacy to the corkboard, to define it. And I came to realize the reason I couldn't is that it is so many things. It is so nuanced a practice. It takes place over such a long period of time and over so many small and large interactions that you cannot pin it down. And when it comes to the diplomats themselves, I asked Naima, OK, what makes a good diplomat? And she gave me the ultimate non definition.

Naima Green-Riley:
Diplomats can get training in and there's lots of training that goes into being diplomat. One thing that I always look back to and sort of laugh at is that when you first become a Foreign Service officer, the State Department puts you into a class called a one hundred. And it was about six weeks when I took it in twenty ten. But basically You in a class of other First-Year diplomats all joined the State Department at the same time. And you go to a place called the Foreign Service Institute and walk around with your suit and your briefcase, and it's kind of like a Hogwarts for diplomats. So I just remember going to the Foreign Service Institute and getting this training. But as much as you can have trainings on sort of what to expect in your role as a diplomat, I think that much of what makes diplomats talented is sort of innate. The people who are bridge builders and other situations, the people who are able to understand different languages are the people who have traveled internationally in the past often tend to be the people who are good at being diplomats. And so I don't know that there's anything that you can learn in a class that's going to really, really when things get get tough, you know, be the magic bullet.

Hannah McCarthy:
Today's episode was produced by me, Hannah McCarthy with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. We try to fit a lot into these episodes, but there is a lot on the cutting room floor and that is what our newsletter is for Extra Credit. You can subscribe by going to civics101podcast.org. And by the way, if you like the show, whether you're a regular listener or brand new, leave us a review on iTunes and let us know what you think. Music in this episode by Xylo Zico Spring Tide Bio Unit Anthem of Rain and Ketsa. Civics 101 is a production of Nhpr, New Hampshire Public Radio.

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Transcript

Hannah McCarthy: Hello, everybody. Before we get started, some very quick and exciting news for you all. Civics 101 is now a weekly show. That's right. You might not have noticed, but before we were only coming out every other week, you will finally have a brand spanking new Civics 101 episode in your feed every single Tuesday. We recently joined Stitcher, and this is allowing us to do that much more for our listeners and learn so much more about American government. There are so many stories for us to explore, so many questions for us to answer, [00:00:30] and now we're going to be able to do an even better job of that for you. So stay tuned. Keep listening and check for a new civics one one episode weekly in your podcast feed.

 

Hannah McCarthy: Nick, earlier today I asked you, what do you think of when you think of a diplomat and before you answered, you did a little bit for me. Do you remember what you did?

 

Nick Capodice: Yeah, I do.

 

Hannah McCarthy: Can you do that again?

 

Nick Capodice: Diplomats [00:01:00] are kind of like, I'm a fancy lad, I'm super fancy. I solve problems around the world.

 

Hannah McCarthy: The reason I liked that, the reason I'm bringing it up now is because prior to about two weeks ago, if I thought of diplomats at all, I thought of fancy well-heeled people, mostly men in suits who hobnob with other fancy well-heeled [00:01:30] men in suits like polo matches and brandy mixed with international intrigue due in part, I think to Hollywood. I mean, have you ever seen the movie the ambassador with Robert Mitchum? It's pretty dramatic. The ambassador, he's through negotiating anyway. It's not accurate. I'm ashamed.

 

Nick Capodice: I also have this sort of vague idea of diplomatic immunity, meaning you can commit any crime and get away with it. But I [00:02:00] imagine that's probably not true.

 

Hannah McCarthy: Actually, it's that's a little bit true.

 

Nick Capodice: Really.

 

Hannah McCarthy: Depending on your rank, you might have carte blanche immunity unless the U.S. decides to take it away or hand it over to other authorities, which they do. Diplomatic immunity is fascinating.

 

Nick Capodice: Fascinating.

 

Hannah McCarthy: But let's start with the basics, shall we? This is Civics 101, I'm Hannah McCarthy.

 

Nick Capodice: I'm Nick Capodice.

 

Hannah McCarthy: And today we are talking about the subtle system that attempts to keep our global relationships at a low simmer [00:02:30] and fix them when they boil over.

 

Alison Mann: Diplomacy is a practice. It's not foreign

 

Alison Mann: Policy.

 

Hannah McCarthy: This is Dr. Alison Mann, the public historian at the National Museum of American Diplomacy.

 

Alison Mann: Foreign policy is the directive and the foreign policy for your listeners. This is set by the administration. This is set by Congress, the administration and then formally our nation's diplomats. They will carry out that foreign policy through the secretary of State. [00:03:00]

 

Hannah McCarthy: Carrying out foreign policy means representing American interests to other nations and keeping things peaceful and prosperous. Diplomats establish and maintain trade and economic relations and keep an eye on politics abroad and try to keep the peace.

 

Alison Mann: It's about relationships, it's about building those relationships and building trust. And I think that's the greatest, that's the greatest that they have in their toolkit. And a diplomatic toolkit is building those relationships. And how do you foster that relationship [00:03:30] to withstand a period of time today?

 

Hannah McCarthy: Those relationships are built by people in the five different what are called cones of diplomacy of the State Department. And Nick, I'm going to run through them real quick. Are you ready? Absolutely. There's public diplomacy promoting U.S. interests abroad through all kinds of engagement and cultural exchange. There are counselors, the people who provide services to Americans abroad, passports to Americans and visas to foreign nationals. There are economic officers who build and maintain positive trade [00:04:00] and economic relations with other countries. There are political officers who keep a constant eye on politics in other countries and interpret them for the United States. And then finally, there is the management track. These are the people who are leaders at embassies. If you pass the test interviews and security clearance, you get to choose one of these tracks and then eventually you get an assignment.

 

Nick Capodice: I'm going to bet American diplomacy has not always been so comprehensive and organized.

 

Hannah McCarthy: There's quite right. [00:04:30] Thomas Jefferson was our first secretary of state, and he had six people working for him. Today, we have around eight thousand diplomats, otherwise known as Foreign Service officers. But American diplomacy nick, it started long before Jefferson and his tiny fledgling department came along.

 

Alison Mann: I would say the white American colonists had been practicing diplomacy even while they were British colonists.

 

Nick Capodice: I mean, if we're going to talk about relationships with other nations, I want to know how diplomacy [00:05:00] was done with the nations who are already here in North America. When the colonists arrived,

 

Hannah McCarthy: Well, let's look at it from the peaceful and prosperous angle that I brought up, right? That works best when two nations can meet in good faith with the intention of relationship building. In the case of Native Americans, the colonists did not see those complex sovereign nations as complex sovereign nations. So even as tribes played the role of trading partners and allies in war, [00:05:30] the skill of Native American diplomats was perpetually undercut by European and colonial prejudice. Colonial diplomacy with the French and Spanish, who were in North America was very different, and things got even more complicated when those colonists ceased to be British subjects.

 

Alison Mann: In 1776, that's when they realized they now had to do it as United States citizens, and how are they going to do that? So if you read carefully the Declaration of Independence, [00:06:00] it's really not only just an internal document, it's a declaration to the world and it is making that case for global recognition. And then you need allies, right? So almost immediately, the Continental Congress dispatched Benjamin Franklin, Arthur Lee and Silverstein over to France, which would be the natural ally of the Americans to try to broker an agreement of recognition.

 

Nick Capodice: It is fascinating to think of the United States as a nation that's scrambling [00:06:30] for recognition and connection at the global scale. We've been a quote unquote superpower for so long.

 

Hannah McCarthy: I know, but it wasn't really until the major world wars that the U.S. fully took on that label. Allison told me that the museum has these diplomatic simulations that allow people to play out negotiations and, for example, the first Barbary War in the early 19th century.

 

Nick Capodice: Diplomatic simulations.

 

Hannah McCarthy: This is speaking to your game love.

 

Nick Capodice: Can we do this?

 

Nick Capodice: Can we do the [00:07:00] Barbary, the Barbary Pirates?

 

Hannah McCarthy: Yeah, I'll do it later today.

 

Alison Mann: All right. Usually the facilitator will divide them up and be like, OK, well, you're going to play this country, you're going to be the United States. And so the students are like United States. It's like, Yeah, Big Dog here, you know, and they reach in the materials and they're like, Oh, wait, a second, we actually have the least to work with here, especially the 18th century system where they don't really have that much, they don't have the upper hand. And that is so fascinating to to watch the students [00:07:30] and then the students who are playing the other stakeholders to be like, Oh, wow, we have the upper hand here. And then they go into those negotiations with a little bit more confidence. So that's been really fascinating to watch. It was, you know, decades of decades and decades and decades of, you know, learning where where was the United States place in the world.

 

Hannah McCarthy: For example, Nick, speaking of our place in the world, the United States [00:08:00] shouts into the global void Hey, we're our own country now. And this is a tense moment because not only is this treason? It also doesn't mean much until other countries agree. So who would you guess was the first nation to shout back? Yes, indeed. United States, we recognize you. You are a country.

 

Nick Capodice: I'm going to say because of our search for an ally in our early founding years, France.

 

Alison Mann: Morocco was the first country to recognize the United States. It [00:08:30] was not France. It was Morocco. The relationship between the United States and Morocco is the longest standing, unbroken relationship in American history. And it's over two hundred and thirty years old now, Mohammed, the third said. This is great. We have a great trading partner that we can. We can, we can box out Europe now like we're all for it. Excellent. So it was Morocco that was really like, yeah, we totally recognize the United States of America. [00:09:00] But for the United States to go to France, it was really about the military support. It was about the global recognition and the fact that they felt very strongly that other European nations would follow suit. But within all of that is that layer of the negotiation with Native American, these sovereign tribes.

 

Hannah McCarthy: But like you guessed, Nick, we did end up getting recognition from France as well. And in that case, it was really about needing military support for the Revolutionary [00:09:30] War and hoping that if France recognized us, then other European nations would, too. And it wasn't just nations abroad that we needed something from.

 

Alison Mann: In 1778 that crucial year of alliances when there was a brief moment of parity between the United States efforts of diplomacy with France, but also with the Lenape tribe in current-day Ohio kind of western Pennsylvania, the United States understood very well that they [00:10:00] needed an ally in this native nation to pass freely through those lands to prosecute the war. But they also floated around the idea of creating a sovereign Lenape state within the United States of America, possibly being a 14th state when the United States was able to conclude the war. And it's interesting then, to see how the relationship with the French strengthened, but very quickly that that agreement that was signed [00:10:30] at the Treaty of Fort Pitt in September of seventeen seventy eight dissolved a month or two later because of violence against the Native Americans.

 

Hannah McCarthy: By violence.

 

Hannah McCarthy: Alison means members of the continental militia continuing the attacks and murders of the Lenape people that had been going on. Prior to this peace treaty, and this highlights an important factor of American diplomacy, two governments can make all of the agreements and treaties they want, but citizens of those governments have to [00:11:00] play along for the agreement to mean something. In the case of the Treaty of Fort Pitt, a treaty essentially establishing a formal alliance between the Lenape and the U.S. government. U.s. citizens went on to murder members of the Lenape tribe, not on the order of their government, but of their own accord. Still, it showed the Lenape that the U.S. could not effectively stand behind their alliance, and so that alliance dissolved.

 

Nick Capodice: And speaking of American citizens breaking ranks. Tell [00:11:30] me about diplomacy during the Civil War in the U.S. because we have this chunk of a country which is trying to secede. So how did other nations react to that? Were we communicating with them about it at all?

 

Alison Mann: You know, something that's really fascinating to for our audience when they always learn like, wow, the Confederacy had diplomats were like, Yeah, because much like the United States, 80 years before, the Confederacy recognized that they only exist as far [00:12:00] as the world sees them as existing. So they lobbied very hard for the British and the French to recognize them as independent from the United States of America and the United States. In their best interest was to prevent that from happening.

 

Nick Capodice: I had no idea the Confederacy had diplomats, but it makes perfect sense. They're trying to, because they're trying to form their own country.

 

Hannah McCarthy: Yeah. And for the record, there were people in Europe who were like, Hey, wait a minute, didn't you? United [00:12:30] States just secede? And now you're telling people in your own country, No, you're not allowed to secede that that was one of the powerful talking points of the Confederacy.

 

Alison Mann: Early on in eighteen sixty one, after the violence had begun, the Confederacy dispatched a couple of guys over to Great Britain, Great Britain, it said, We're neutral like we're just, we're waiting, you know, which infuriated the United States [00:13:00] because is neutrality really neutral by the fact that you're saying you're neutral? Aren't you kind of taking their side because that means that you'll still do business with them like you can't do that? You know,

 

Hannah McCarthy: It was a fine diplomatic balance because confederates know that Europe is reliant on American cotton, so they appeal to that trade issue in Great Britain and France are lured by that. Meanwhile, union diplomats are just scrambling madly to keep Europe neutral to make sure that Europe is not siding with anybody. And [00:13:30] by the way, union diplomats are pushing the problem of secession. Not the problem of enslavement. It fell to American abolitionists, not official diplomats, to represent the most important cause of this national rift.

 

Alison Mann: And so there was a woman. Her name was Sarah Parker Redman. She was an African-American woman who went on a speaking circuit in eighteen fifty nine throughout Scotland and England, and she spoke to the working classes and she spoke to [00:14:00] them about the cotton that they were touching, that they were making in the textile mills. And she appealed to them based upon their common humanity, which is a just a diplomatic skill that is so important is to appeal to common humanity. And she was so effective in Manchester that workers, the textile refused to touch the raw cotton that they knew had come from the South. So that was a way that an American citizen was able to actually [00:14:30] influence political decision making over in Great Britain.

 

Nick Capodice: So while you had official diplomats trying to sway heads of state one way or another, here's this woman talking to fellow laypeople getting to the heart of the matter.

 

Hannah McCarthy: And that subtlety, Nick, you know, like appealing not just to the heads of state, but to the rest of the people of a country. This is a vitally important aspect of diplomacy that took a long while for the United States to refine. After we managed to preserve the union, [00:15:00] we started to grow rapidly as a nation and things really hit a fever pitch when the First World War rolled around. And then the second, as we became true powerbrokers on the global scale repping the U.S. became an increasingly complex dance because yes, it is about having good trade and economic partners who will help you. Should a war break out. But it's also about showing the world what America is like and making sure the world likes us. That's coming up after the break. [00:15:30]

 

Nick Capodice: Hey, we really love what we do, and we're really lucky to do it, and Hannah and I say this all the time, we say that we would do it for free if we were independently wealthy and tragically, the rich estranged uncle I never knew has yet to leave his entire state to me. Ditto for Hannah. So instead, we must work for money, for lucre. And in the case of Civics [00:16:00] 101, that money comes in part from listener donations. So if you are a kindly soul who is able to make a contribution to the show, we would be so grateful. And you can do that by clicking the donate button at Civics101podcast.org. And if you are my rich, estranged uncle I don't know about, I live in Concord, New Hampshire, and I would love to cook for you. Let's get back to the show.

 

Hannah McCarthy: In  [00:16:30]1949, President Harry Truman did something unprecedented in the world of diplomacy. He appointed a woman. Eugenie Anderson as the U.S. ambassador to Denmark. Here's Alison Mahon, public historian at the National Museum of American Diplomacy.

 

Alison Mann: She's a really fascinating figure. She was politically appointed to an ambassadorship by President Harry Truman, and she is our first female [00:17:00] ambassador.

 

Eugenie Anderson: That we have no choice but to build up

 

Eugenie Anderson: Our defenses and to help our

 

Eugenie Anderson: Allies to restore their defense forces.

 

Alison Mann: But she was an early practitioner of what she called people to people diplomacy. There really wasn't that idea that the diplomat would go out among the people, right, that when they were over the stationed in there, they talk to their foreign counterparts, like they talk to the foreign affairs minister. They talk to us. But you didn't like walk around the street, you know, and talk to the people. But Eugenie Anderson said, Well, I'm going to go talk to the people. [00:17:30] So she made it a point to learn Danish before she went to Denmark, and she would go and visit the fish market, and she would talk to the people in their own language and just get on that very basic person to person level. And in that way, building the trust of the people of the country and at the same time, advocating for the United States of America.

 

Hannah McCarthy: When I asked Alison about her favorite diplomats, I heard stories like this. People who represented shifts [00:18:00] in American diplomacy, who innovated new ways of communicating with other nations. This form of diplomacy that Alison is talking about, quote unquote public diplomacy. The State Department did not make that a part of its mission until the late 90s.

 

Nick Capodice: So you you started this episode by saying you were ashamed to stereotype diplomats as fancy men with suits and brandy snifter who operated behind closed doors. But it also sounds like until very recently, it kind of was that way.

 

Naima Green-Riley: Historically, [00:18:30] the State Department has not been very diverse. The State Department is a place where until 1971, if a woman was a Foreign Service officer and wanted to serve abroad, she could not be married. And as soon as she got married, she had to resign at. The State Department is a place where the three primary adjectives to explain diplomats for many years 50 years ago, for example, were pale male and Yale. So [00:19:00] it's a place where there was often a huge homogeneity of the diplomatic corps.

 

Hannah McCarthy: This is Naima Green-Riley soon to be Dr. Naima Green Riley and a professor at Princeton. She's currently completing her PhD at Harvard and writing about diplomacy. She also happens to be a former diplomat who worked in public diplomacy.

 

Naima Green-Riley: I often felt like on the ground I could bring my personal experience to the job, and that was important to [00:19:30] me because America is a diverse place where sometimes people in the country have very different views from mine. At the same time, there weren't enough, and there still are not enough people who are able to do that within the diplomatic corps. And to the extent that we can increase the diversity of the State Department, I think that we'll get people abroad. We'll get a better idea of really what it means to be American and its full sense of diversity and its full and its full spectrum

 

Hannah McCarthy: Name is first diplomacy job was in Egypt.

 

Naima Green-Riley: I got [00:20:00] assigned to Egypt in late 2010, and shortly after I was told that I was going to Egypt for my first tour, a little thing called the Arab Spring happened

 

Hannah McCarthy: And right away. This was an opportunity where sharing her personal experience in and of America was an asset.

 

Naima Green-Riley: And my own experience as a black woman at the time when I was a diplomat as a pretty young black woman, had a huge impact on how I had experienced being [00:20:30] an American and so going abroad, I found that I was able to bring those experiences to the table in order to set up programing. So there were times when we talked about the civil rights movement and protests that happened during the civil rights movement in the context of an Arab Spring in which you see people who are struggling to gain greater rights in both situations. There were times in which I had a soul food dinner [00:21:00] and I got to introduce Black Eyed Peas and collard greens and fried chicken to schoolkids and in Egypt. There was a time when we did a Soul Train line in China. And so one thing that was important to me when I was a diplomat was to be able to share what my experience was as an American. And I think that that is actually something that many diplomats aim to do.

 

Hannah McCarthy: I read this government report assessing public diplomacy. Think this was in [00:21:30] 2005? Ok? Really recent. And it says that in this changed world, public diplomacy is as important as foreign policy and that. The State Department needs to do an even better job of it. But, you know, to me, that principle was evident back when Sarah Parker, Redmond, told mill workers in England the horrifying truth about where their cotton came from, the way other countries have perceived us has always mattered [00:22:00] since our earliest days as a country. So yes, diplomacy is about conversations, about sharing, about making sure the U.S. knows what's going on politically and economically elsewhere, and making sure our interests are not compromised abroad. But it's also about desirable culture. Does your country have the it factor that's going to make people like it? Do your ambassadors represent that? Naima and I talked [00:22:30] about this thing called soft power,

 

Naima Green-Riley: The concept of soft power. Originally came from academia and I have now left the State Department. I've gone into an academic role. I'm about to start a role as a professor at Princeton, and I've had a lot of time to think about what public diplomacy is from an academic standpoint and how it seeks to to capture soft power. So soft power is this term that was coined in the late 80s early 90s by professor at Harvard named Joe [00:23:00] Nye. And the idea is that through being attractive through things like it's entertainment industry or its fashion industry or its music industry, a country can somehow gain some sort of credit internationally that will translate into helping it to be more persuasive, helping it to get what it wants internationally. And so another way to talk about soft power is to say, if you're cool, if your country is cooler, then [00:23:30] you'll get brownie points and those brownie points will help you to gain something tangible in international politics. That's that's the way the concept works.

 

Nick Capodice: Wow. So there is such a thing as being the cool kid, even at the global level.

 

Hannah McCarthy: Yeah, there is. But you don't become the cool kid overnight. You don't develop strong international relationships overnight. You don't create or de-escalate conflict overnight. You [00:24:00] don't establish a desirable culture overnight. One major takeaway for me about diplomacy is that it is a long game. It is the long game.

 

Alison Mann: It's the skills. It's the tools. It's the getting to. Yes, it's the getting to. Maybe. And to understand that there really is no quick fix that what we see kind of evolving over the course of time is just very lengthy relationship building [00:24:30] of the work of our nation's diplomats, you know, to get to that point that we don't see, quite frankly, you know, the work of the diplomacy and our diplomats is quiet often.

 

Hannah McCarthy: Nick, you know, I struggled in this episode to pin diplomacy to the corkboard, to define it. And I came to realize the reason I couldn't is that it is so many things. It is so nuanced a practice. It takes place over such a long period of time and [00:25:00] over so many small and large interactions that you cannot pin it down. And when it comes to the diplomats themselves, I asked Naima, OK, what makes a good diplomat? And she gave me the ultimate non definition.

 

Naima Green-Riley: Diplomats can get training in and there's lots of training that goes into being diplomat. One thing that I always look back to and sort of laugh at is that when you first become a Foreign Service officer, [00:25:30] the State Department puts you into a class called a one hundred. And it was about six weeks when I took it in twenty ten. But basically You in a class of other First-Year diplomats all joined the State Department at the same time. And you go to a place called the Foreign Service Institute and walk around with your suit and your briefcase, and it's kind of like a Hogwarts for diplomats. So I just remember going to the Foreign Service Institute and getting this training. But as [00:26:00] much as you can have trainings on sort of what to expect in your role as a diplomat, I think that much of what makes diplomats talented is sort of innate. The people who are bridge builders and other situations, the people who are able to understand different languages are the people who have traveled internationally in the past often tend to be the people who are good at being diplomats. And so [00:26:30] I don't know that there's anything that you can learn in a class that's going to really, really when things get get tough, you know, be the magic bullet.

 

 [00:27:00]

 

Hannah McCarthy: Today's episode was produced by me, Hannah McCarthy with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. We try to fit a lot into these episodes, but there is a lot on the cutting room floor and that is what our newsletter is for Extra Credit. You can subscribe by going to civics101podcast.org. And by the way, if you like the show, whether you're a regular listener or brand new, leave us a review on iTunes and let us know what you think. [00:27:30] Music in this episode by Xylo Zico Spring Tide Bio Unit Anthem of Rain and Ketsa. Civics 101 is a production of Nhpr, New Hampshire Public Radio.


 
 

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Gerrymandering

The 2020 census has concluded, which means it's time for states to redraw their congressional districts. Today we're exploring partisan gerrymandering, the act of drawing those maps to benefit one party over the other. In this episode you'll learn about stacking, cracking, packing, and many other ways politicians choose voters (instead of the other way round). 

Taking us through the story of Gerry's salamander and beyond are professors Justin LevittRobin Best, and Nancy Miller.

Click here for a graphic organizer for students to take notes upon while they listen to the episode.


gerrymandering final.mp3: Audio automatically transcribed by Sonix

gerrymandering final.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Nick Capodice:
Ok. Ok. Yeah. Ok, hold on. Ok. Take a look at this. Ok.

Hannah McCarthy:
It's like a Rorschach test.

Nick Capodice:
Ok, so that's Maryland's Third District, and it's called it's nicknamed the praying mantis. Check this one out.

Hannah McCarthy:
There's a long thing that could be like a trunk that looks like it might be like squirting water out of it.

Nick Capodice:
That's Texas's Thirty Fifth District, and it's nicknamed the Upside-Down Elephant.

Hannah McCarthy:
Is it Rorschach or Rorschach?

Nick Capodice:
Rorschach.

Hannah McCarthy:
Good I got it right.

Nick Capodice:
There's an old joke like, Who is this guy Rorschach? And Why did he draw so many pictures of my parents fighting?

Hannah McCarthy:
Yeah, that's funny. This one looks like someone like yelling at someone else and kicking their butt.

Nick Capodice:
That is Pennsylvania's 7th District. It doesn't exist anymore, and it's got my favorite nickname, which is Goofy kicking Donald Duck.

Hannah McCarthy:
So these are congressional districts, right? Why do they look so weird?

Nick Capodice:
Ok, so you know, every two years, a bunch of Americans go into a voting booth and they pick someone, right?

Hannah McCarthy:
Yes, voting.

Nick Capodice:
What these are extreme instances of are not citizens picking representatives. But representatives picking them. You're listening to Civics 101, I'm Nick Capodice,

Hannah McCarthy:
I'm Hannah McCarthy,

Nick Capodice:
And today we are talking about gerrymandering, the political maneuver of drawing a map to divide voters so on Election Day, one party is more likely to win. To start off, if you live in the United States, you live in a congressional district. Your physical address determines who you can vote for in an election. And even if you live in a state that only has one district, your address still matters because it determines who you can vote for in your state legislature.

Hannah McCarthy:
And I know that as we speak November 2021, these maps are being drawn, right?

Nick Capodice:
Yes, they are, because we draw our state and federal congressional districts after each census.

Hannah McCarthy:
I have heard news stories from multiple states about these new maps. Nick, people care so deeply about them, and I think that that's in part because we are going to be stuck with them for 10 years.

Nick Capodice:
And because of that, Hannah, gerrymandering is always a current events issue.

Justin Levitt:
Well it's no surprise if I could guarantee my job in the job of my friends and guarantee that I could punish the people I don't like. I'd be mighty tempted to use that power, no matter what field that we're in.

Nick Capodice:
This is Justin Levitt. He's a professor of law at Loyola Marymount University.

Justin Levitt:
Legislators aren't any different. Legislators. They're just like us. And since the dawn of the redistricting process, legislators have used the power to draw the lines to reward their friends and punish their enemies.

Hannah McCarthy:
This is interesting. I tend to think of gerrymandering as this modern day political practice that involves computers and data analysis and a lot of critique. But it sounds like Justin is saying that this is something that we have always done.

Nick Capodice:
Always, since the very beginning before we even had a word for it. Some scholars have suggested that Patrick Henry, Mr. Give me liberty or give me death, almost gerrymandered James Madison out of Congress in 1788 by redrawing Virginia's maps. But I'm going to jump ahead to the creation of the term, which is in 1812, and I'm going to start with the fact that we're probably saying it wrong.

Nancy Miller:
You reached out to your nana to see if there's anything you wanted me to to address to the congressman when he comes out next.

Yes, she had a few things. She said he should know that his district was the first to be gerrymandered. And I said, Yeah, I know. Yeah,

Nick Capodice:
That was John Mulaney on Late Night with Seth Meyers and his grandmother's right. The term comes from that signer of the Declaration of Independence, Massachusetts Gov. Elbridge Gerry. Gerry was a Democratic Republican at the time, and he signed a redistricting act that cut up the districts of Essex County so it would be much harder for the other party, the Federalists, to get any seats in the Legislature. And the map of these districts was such a long, curved shape that a cartoonist put wings and a reptilian head on it and published it in the Boston Gazette with the name Gerrymander. It's a portmanteau word of Gerry and Salamander.

Hannah McCarthy:
Now I'm not a herpetologist here, but I don't believe that salamanders have wings.

Nick Capodice:
That's fair. I think it comes from when we used to use the word salamander to just mean dragon.

Hannah McCarthy:
Was that 1812 gerrymander successful?

Nick Capodice:
Lord Yes. In the following election, Federalists won only a third of seats in the state legislature, even though they had a majority of the popular vote.

Hannah McCarthy:
But how does that work? How do these maps hold so much power?

Nick Capodice:
Well, to understand gerrymandering, we have to first understand the process that we're going through now, congressional redistricting. And Justin told me that redistricting is one of the most important facets of our democracy because whatever you care about Hannah, whether it's like national security or universal health care or a woman's right to choose or gun rights, whatever, it all comes down to our election process, we do things through the representatives that we elect.

Justin Levitt:
And if you care about the election process, then you care about redistricting. It's the infrastructure of infrastructure. It's how we do absolutely everything else because it makes sure that some voices get lifted up in choosing who those representatives will be that decide what kind of a world we're going to be living together.

Nancy Miller:
Redistricting is something we have to do, or it's it's good that we have to do it every 10 years now since the 1960s, because people move around.

Nick Capodice:
This is Professor Nancy Miller. She teaches political science at the University of Dayton.

Nancy Miller:
From a congressional standpoint, we've decided that the House of Representatives is going to be 435 people, and I don't think there's any appetite to make that larger right now. And so people move from the northeast to the South or the Midwest to the South. Sometimes they move from the south up to the Pacific Northwest. And in order to keep with the principle of one man, one vote, some states have to lose some seats and some states will gain some seats. And if you're going to change the number of seats in a state, then you, of course, you've got to redraw the lines.

Nick Capodice:
And if we're keeping the house at four hundred and thirty five members, it's only fair that each of those members represents about the same number of people.

Nancy Miller:
So what would commonly happen in particular in state legislatures, but also in congressional delegations? Oftentimes, they would just map districts on the counties like, especially at the state legislative level. And as cities grew, there was a lot of what we would call malapportionment.

Hannah McCarthy:
It's called malapportionment,

Nick Capodice:
Malapportionment. Apportionment that is unfair. So you'd have a city of a million people represented by one person and then a lot of rural communities of like 20000 people with one representative each for those. So if you lived in the city, your vote meant a lot less. And there were fewer people in Congress standing up for city issues.

Nancy Miller:
So rural rural interests were always dominating the Legislature. Oftentimes to the detriment of urban populations, which couldn't get some of the services or the infrastructure things they needed because it wasn't a priority for rural legislators

Nick Capodice:
On the national level there are four hundred and thirty five congressional districts in the United States, and each one represents about seven hundred thousand people. There are some exceptions, though.

Hannah McCarthy:
For example, I'm thinking of those states that have one congressional district and a smaller population than 700000, like Wyoming.

Nick Capodice:
Yeah, Vermont. Those outliers aside, since the 1960s, every 10 years after each federal census states redraw their federal congressional districts and their state congressional districts to make sure that malapportionment doesn't occur. And this process is when we get to the world of the praying mantis, the upside-down elephant, goofy kicking Donald Duck.

Robin Best:
Partisan gerrymandering, of course, doesn't have to happen.

Nick Capodice:
This is Professor Robin Best, who teaches political science at Binghamton University.

Robin Best:
But the redistricting process that happens every 10 years gives the people drawing these lines the opportunity to draw those lines in a way that might advantage one political party and disadvantage the other political party. After the last round of redistricting in 2010, we saw a good number of people drawing those district lines actually do so to try to benefit one party at the expense of the other.

Hannah McCarthy:
And that is what separates redistricting from gerrymandering. Right. Redistricting is a necessary democratic process, but gerrymandering is done to favor one party.

Nick Capodice:
Yes, and there are three tried and true methods of gerrymandering packing, cracking and stacking, and we're going to cover all three. First up, packing

Robin Best:
When you pack partisans, you cram as many of them as you possibly can into a few districts as possible. So for example, if you are Republicans and you want to advantage your own party when you're drawing district lines, you would try to cram as many Democratic voters into a few districts as possible. And you kind of give them those districts, right? So say you have 10 districts that you're trying to create. You put as many Democrats as you can into two of them where they constitute like a ninety five percent majority. You give them those two districts and then you spread out your Republicans across the remaining eight districts so that you receive a majority of the vote in each of those districts.

Nick Capodice:
And cracking is the opposite. Let's say you're a Democrat-controlled legislature and you want to draw a map that favors your party, the Democrats. So what you do is you take a Republican district and you crack it up, putting those Republican voters into nearby Democrat dominant districts. So instead of four super blue districts and one Super Red District, you have five barely blue districts, five Democratic elected officials.

Hannah McCarthy:
Ok. It seems to me, then, that the most dastardly gerrymander, the perfect crime, if you will, would be to crack districts so deftly that your party wins every district by the slimmest margin.

Nick Capodice:
And that is a map, just like goofy kicking Donald Duck. Pennsylvania's 7th District, it so obviously cracked several urban neighborhoods into outlying rural areas that there was a public outcry and a lawsuit. Party leaders couldn't agree how to fix it, and it fell to the Pennsylvania Supreme Court to redraw the district more equitably in 2018.

Hannah McCarthy:
All right. I got packing. I got cracking. But stacking is one that I have never heard of

Nick Capodice:
Yeah, stacking is, in my opinion, the most nefarious. When you stack a congressional district, you draw the lines to create a perceived majority in it. A majority of people who are either minorities and a lower income bracket or less educated three demographics that statistically due to various circumstances, have a much lower voter turnout than educated, wealthy white voters.

Hannah McCarthy:
So it's kind of like misdirection. You grant a clear majority presence in a district. The official, elected in November, is not the one who represents the majority of people who live there.

Nick Capodice:
Absolutely. And there are other methods of gerrymandering that don't get talked about as much. I just want to give them a brief mention here. There's prison-based gerrymandering where a district with a large incarcerated population which cannot vote counts those citizens as part of that district's population instead of their hometown, giving that district more representative power. And finally, there's sweetheart gerrymandering. That's where incumbents from both parties reach a tacit handshake, an agreement to draw the lines so everybody just gets to keep their job.

Hannah McCarthy:
Who specifically is in charge of physically drawing these maps?

Nick Capodice:
All right, here's Robin again.

Robin Best:
Yes, that is actually probably the most important question. So in the majority of states, the state legislatures will draw the lines and then often the maps that they create have to be approved by the governor in a much smaller proportion of states. The lines are drawn by redistricting commissions, some of which are independent, some of which are political, some of which are bipartisan. There are lots of different variations of those, but in the vast majority of states, they're still drawn by state legislatures.

Nick Capodice:
And those variations are interesting. Some states have independent commissions that draw the maps, and each commission is completely different. California's redistricting commission comprises five Democrats, five Republicans and four individuals unaffiliated with any party drawn by a lottery. But as of right now, maps are drawn by the state legislature in thirty three states.

Robin Best:
And as you can imagine, you know, the state legislatures are not entirely neutral observers of elections. So we actually see we tend to see the more egregious gerrymanders occur as a result of the lines that are drawn by state legislatures with approval of the governor. So when one party, for example, controls all three branches of the state government, we call that a trifecta. Under those trifecta, we are likely to see the more egregious gerrymander to take place. If there is divided control, so a legislature of one party and a governor from another party, we're less likely to see those types of kind of egregious partisan gerrymanders.

Hannah McCarthy:
As to the result of those different gerrymanders, I do happen to know that they are tremendously effective. Most significantly, I know that in 2012, Democrats received over a million more votes for the House, but the GOP won a thirty three seat majority. Which brings me to a bigger question. Is this legal?

Nick Capodice:
A good question, and one that I'm going to get to right after the break.

Hannah McCarthy:
Ok, but before that, I want to tell listeners that they can read all about the deep dives that are too full of ephemera and trivial tidbits to make it into our show in our free, biweekly newsletter. It's called extra credit. You can subscribe at our website, civics101podcast.org

Nick Capodice:
And quickly, speaking of reading, Hannah and I took the stuff we've learned from making three years worth of episodes and compressed it into a book. It's called A User's Guide to Democracy, How America Works. It's illustrated by the wonderful New Yorker cartoonist Tom Toro. You can get it wherever you get your books.

Nick Capodice:
Ok, we're back, where were we?

Hannah McCarthy:
You were about to answer the question of whether all of this is legal.

Nick Capodice:
Ok. Here's Nancy Miller again.

Nancy Miller:
So there were two cases in the nineteen sixties Reynolds V. Sims and Baker V. Carr. So everybody's probably mostly familiar with Baker V. Carr, because that's the congressional one. Reynolds V. Sims handled state legislative districts, so it's basically the same principle that the districts you draw have to allow for roughly equal representation.

Nick Capodice:
Both of these cases ruled that redistricting is a justiciable issue. It's a funny word. Justiciable. Justiciable means it's something that can be addressed by the Supreme Court or the State Supreme Court. And those two decisions dealt with equal numbers of people in districts that malapportionment thing we talked about earlier. These are the cases that ruled we are obligated to redraw our maps after every census, and you can't draw a district so that it has significantly fewer citizens than another.

Hannah McCarthy:
Did we redraw them at a different time prior to these court cases?

Nancy Miller:
Prior to the nineteen sixties, the districts were just redrawn whenever the state felt like it. Pretty much so. There was a whole, yeah. So there was a whole lot of malapportionment.

Nick Capodice:
But while the Supreme Court ruled that in equal numbers of people in a state and federal districts is unconstitutional when it comes to the issue of partisan gerrymandering, I'm talking, cracking, packing and stacking. That is something else entirely.

Chief Justice Roberts:
And others set forth, in our opinion. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. We vacate the judgments below and remand with instructions to dismiss...

Nick Capodice:
That was Chief Justice John Roberts announcing the 2019 decision in Rucho V. Common Cause. It was a five to four decision which stated that partisan gerrymandering claims are not justifiable. The Supreme Court cannot rule on questions of a political nature, and it's no surprise that John Roberts wrote the opinion because a year earlier, in another case, he referred to methods to determine partisan gerrymandering as "sociological gobbledygook."

Hannah McCarthy:
I didn't know you were allowed to use the word gobbledygook when you were a chief justice. So we know that this is happening, political scientists agree that gerrymandering is real, but it is not technically illegal.

Nick Capodice:
It is not technically illegal at the federal level. Some states have legislation that bans certain types of gerrymander, like the prison gerrymander we spoke of earlier. Twenty four states have laws requiring that maintaining communities of interest has to be considered when they're drawing the maps. But even then, it's not easy to prove in a court of law if gerrymandering is happening. And Justin Levitt told me that just because a map looks strange and snaky, that doesn't mean it's necessarily a gerrymander.

Justin Levitt:
It's dangerous to judge a book by its cover. And so you can have some really nice looking districts that do some pretty bad things, and you can have some strange looking districts that do some pretty great things.

Hannah McCarthy:
So we've talked about strange and like bad maps a lot so far. But can you give me an example of a strange but positive map?

Nick Capodice:
Yeah, and radio is a bad medium to talk about map design, but listeners should take a look at Illinois's 4th Congressional District. It looks absurd. It's like, what do you call the thing you like in a movie and you say... a clapperboard? It's like a clapperboard on a movie set. But what that strange clapperboard district does is it unites two Latino communities that share a lot of characteristics and thus a lot of representational needs.

Justin Levitt:
And so it's not often the strangely drawn nature of a district that tells you whether it's good or bad. People make assumptions just like they make assumptions about other people based on how they look that aren't always true.

Hannah McCarthy:
Can I ask about the argument that we should just do away with human beings drawing districts entirely and just let a computer do it randomly?

Nick Capodice:
Yeah, I always thought, that's like the perfect solution. It's just, you know, take the humans out of the equation, and there are a lot of people who do advocate for that. But I want to share two arguments against random redistricting. First off, Robin said even that could favor one party over the other.

Robin Best:
The problem was kind of the natural geography in the U.S. is that Democrats tend to be very packed together. So New York City, you can't really draw competitive districts in New York City. They are going to be packed full of Democrats, no matter what you do. So a lot of those votes are not going to kind of be effectively used. They're just going to be wasted. So the entire country actually kind of looks like that. So you have Democrats that are kind of packed more tightly into these urban geographic centers and Republican votes that are distributed kind of more efficiently is what we call it in terms of elections across the other areas in the state. So that if you just kind of let the computer draw the maps, you're likely to just perpetuate that kind of natural gerrymander that's already in place, which is then going to end up being a bit biased against Democrats and in favor of Republicans.

Nick Capodice:
And finally, Justin said something that made me realize that when I was staring at maps and numbers, I had lost sight of the whole reason we have congressional districts in the first place. Hannah, why do we elect our representatives in the United States?

Hannah McCarthy:
Because they represent us. It is, it's right there in their name, representative. And if we feel they don't do a good job representing us, we get to pick someone else

Nick Capodice:
And it's much easier to gauge how well they're doing at it if people in their district have things in common.

Justin Levitt:
Sometimes those are geographic. People from a particular town or particular county. Sometimes that's based on industry. Sometimes it's based on racial or ethnic affiliation. It can be based on lots of things. But when people have common interests, when a community together as common interests, they can hold their representatives accountable for whether their representatives are standing up and representing those interests or not. If your district represents the tech sector, then your representative should be out there advocating for the tech sector in ways that are Republican or Democrat, but should be advocating for the tech sector. If your district represents St. Louis, then your representative should be advocating for St. Louis. Whether they're Republican or Democrat should also be advocating for St. Louis. So there's a lot to be said for having districts where there's something common about the people who live in the district. There's something that binds them together beyond just party. And when you have districts that are created to reward or punish friends or enemies, that makes it really hard to hold the representatives accountable.

Hannah McCarthy:
So when I asked if gerrymandering is legal, the answer is kind of like the answer to Can I make a right on a red light? It depends where you are.

Nick Capodice:
Yeah, though I will add there is language in the Freedom to Vote Act, which was introduced in the Senate in October of Twenty Twenty One, which explicitly bans partisan gerrymandering, and it puts up safeguards to fix maps that are unfairly drawn. But the bill did not get the 60 votes needed to overcome the filibuster. But to your question, gerrymandering can be legal depending on your state.

Hannah McCarthy:
May I take the question just one step further?

Nick Capodice:
Yeah.

Hannah McCarthy:
Is gerrymandering cheating?

Nick Capodice:
That was a real... That was a really hard question, because like when you Google is gerrymandering cheating, you're not going to get an answer. Yeah, I didn't. I didn't ask Robin that when I was interviewing her, so I wrote her an email after to ask that exact question. And here's her response to Is gerrymandering cheating? She says, I think it would be fair to say that partisan gerrymandering violates our notions of fairness and democratic principles. So would most of the population view it as cheating, even if it's not explicitly illegal? Yes. Probably.

Nick Capodice:
And that is it for gerrymandering. Today's episode was produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy:
Thank you. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and stan of the Nicholas Cage Vehicle, Valley Girl. Music.

Nick Capodice:
Music in today's episode by Blue Note Sessions, Sir Cubworth, Quincas Moreira, Cory Gray, Makiah Beats, Ikimashu Oi, and that composer with the chords never miss-keyed, Chris Zabriskie.

Hannah McCarthy:
Civics 101 is a production of Nhpr.org New Hampshire Public Radio.

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Transcript

Nick Capodice: Ok. Ok. Yeah. Ok, hold on. Ok. Take a look at this. Ok.

Hannah McCarthy: It's like a Rorschach test.

Nick Capodice: Ok, so that's Maryland's Third District, and it's called it's nicknamed the praying mantis. Check this one out.

Hannah McCarthy: There's a long thing that could be like a trunk that looks like it might be like squirting water out of it.

Nick Capodice: That's Texas's Thirty Fifth District, and it's nicknamed the Upside-Down Elephant.

Hannah McCarthy: Is it [00:00:30] Rorschach or Rorschach?

Nick Capodice: Rorschach.

Hannah McCarthy: Good I got it right.

Nick Capodice: There's an old joke like, Who is this guy Rorschach? And Why did he draw so many pictures of my parents fighting?

Hannah McCarthy: Yeah, that's funny. This one looks like someone like yelling at someone else and kicking their butt.

Nick Capodice: That is Pennsylvania's 7th District. It doesn't exist anymore, and it's got my favorite nickname, which is Goofy kicking Donald Duck.

Hannah McCarthy: So these are congressional districts, right? Why do they look so weird?

Nick Capodice: Ok, so you know, every two years, a bunch of Americans go into a voting [00:01:00] booth and they pick someone, right?

Hannah McCarthy: Yes, voting.

Nick Capodice: What these are extreme instances of are not citizens picking representatives. But representatives picking them. You're listening to Civics 101, I'm Nick Capodice,

Hannah McCarthy: I'm Hannah McCarthy,

Nick Capodice: And today we are talking about gerrymandering, the political maneuver of drawing a map to divide voters so on Election Day, one party is more likely to win [00:01:30]. To start off, if you live in the United States, you live in a congressional district. Your physical address determines who you can vote for in an election. And even if you live in a state that only has one district, your address still matters because it determines who you can vote for in your state legislature.

Hannah McCarthy: And I know that as we speak November 2021, these maps are being drawn, right?

Nick Capodice: Yes, they are, because we draw our state and federal congressional districts after each census.

Hannah McCarthy: I have heard news stories from multiple [00:02:00] states about these new maps. Nick, people care so deeply about them, and I think that that's in part because we are going to be stuck with them for 10 years.

Nick Capodice: And because of that, Hannah, gerrymandering is always a current events issue.

Justin Levitt: Well it's no surprise if I could guarantee my job in the job of my friends and guarantee that I could punish the people I don't like. I'd be mighty tempted to use that power, no matter what field that we're in.

Nick Capodice: This is Justin Levitt. He's a professor of law at Loyola Marymount [00:02:30] University.

Justin Levitt: Legislators aren't any different. Legislators. They're just like us. And since the dawn of the redistricting process, legislators have used the power to draw the lines to reward their friends and punish their enemies.

Hannah McCarthy: This is interesting. I tend to think of gerrymandering as this modern day political practice that involves computers and data analysis and a lot of critique. But it sounds like Justin is saying that this is something that we have always done.

Nick Capodice: Always, since the very beginning before we even had a word for it. [00:03:00] Some scholars have suggested that Patrick Henry, Mr. Give me liberty or give me death, almost gerrymandered James Madison out of Congress in 1788 by redrawing Virginia's maps. But I'm going to jump ahead to the creation of the term, which is in 1812, and I'm going to start with the fact that we're probably saying it wrong.

Nancy Miller: You reached out to your nana to see if there's anything you wanted me to to address to the congressman when he comes out next.

Yes, she had a few things. She said he should know that his district was the first to be gerrymandered. And I said, Yeah, I know. Yeah,

Nick Capodice: That [00:03:30] was John Mulaney on Late Night with Seth Meyers and his grandmother's right. The term comes from that signer of the Declaration of Independence, Massachusetts Gov. Elbridge Gerry. Gerry was a Democratic Republican at the time, and he signed a redistricting act that cut up the districts of Essex County so it would be much harder for the other party, the Federalists, to get any seats in the Legislature. And the map of these [00:04:00] districts was such a long, curved shape that a cartoonist put wings and a reptilian head on it and published it in the Boston Gazette with the name Gerrymander. It's a portmanteau word of Gerry and Salamander.

Hannah McCarthy: Now I'm not a herpetologist here, but I don't believe that salamanders have wings.

Nick Capodice: That's fair. I think it comes from when we used to use the word salamander to just mean dragon.

Hannah McCarthy: Was that 1812 gerrymander successful?

Nick Capodice: Lord Yes. In the following election, Federalists won [00:04:30] only a third of seats in the state legislature, even though they had a majority of the popular vote.

Hannah McCarthy: But how does that work? How do these maps hold so much power?

Nick Capodice: Well, to understand gerrymandering, we have to first understand the process that we're going through now, congressional redistricting. And Justin told me that redistricting is one of the most important facets of our democracy because whatever you care about Hannah, whether it's like national security or universal health care or a woman's right to choose or gun rights, [00:05:00] whatever, it all comes down to our election process, we do things through the representatives that we elect.

Justin Levitt: And if you care about the election process, then you care about redistricting. It's the infrastructure of infrastructure. It's how we do absolutely everything else because it makes sure that some voices get lifted up in choosing who those representatives will be that decide what kind of a world we're going to be living together.

Nancy Miller: Redistricting [00:05:30] is something we have to do, or it's it's good that we have to do it every 10 years now since the 1960s, because people move around.

Nick Capodice: This is Professor Nancy Miller. She teaches political science at the University of Dayton.

Nancy Miller: From a congressional standpoint, we've decided that the House of Representatives is going to be 435 people, and I don't think there's any appetite to make that larger right now. And so people move from the northeast to the South or the Midwest to the South. Sometimes they move from the south [00:06:00] up to the Pacific Northwest. And in order to keep with the principle of one man, one vote, some states have to lose some seats and some states will gain some seats. And if you're going to change the number of seats in a state, then you, of course, you've got to redraw the lines.

Nick Capodice: And if we're keeping the house at four hundred and thirty five members, it's only fair that each of those members represents about the same number of people.

Nancy Miller: So what would commonly happen in particular in state legislatures, [00:06:30] but also in congressional delegations? Oftentimes, they would just map districts on the counties like, especially at the state legislative level. And as cities grew, there was a lot of what we would call malapportionment.

Hannah McCarthy: It's called malapportionment,

Nick Capodice: Malapportionment. Apportionment that is unfair. So you'd have a city of a million people represented by one person and then a lot of rural communities of like 20000 people with one representative each for those. So if you [00:07:00] lived in the city, your vote meant a lot less. And there were fewer people in Congress standing up for city issues.

Nancy Miller: So rural rural interests were always dominating the Legislature. Oftentimes to the detriment of urban populations, which couldn't get some of the services or the infrastructure things they needed because it wasn't a priority for rural legislators

Nick Capodice: On the national level there are four hundred and thirty five congressional districts in the United States, and each one represents about seven hundred thousand [00:07:30] people. There are some exceptions, though.

Hannah McCarthy: For example, I'm thinking of those states that have one congressional district and a smaller population than 700000, like Wyoming.

Nick Capodice: Yeah, Vermont. Those outliers aside, since the 1960s, every 10 years after each federal census states redraw their federal congressional districts and their state congressional districts to make sure that malapportionment doesn't occur. And this process is when we get to the world of the praying mantis, the upside-down elephant, [00:08:00] goofy kicking Donald Duck.

Robin Best: Partisan gerrymandering, of course, doesn't have to happen.

Nick Capodice: This is Professor Robin Best, who teaches political science at Binghamton University.

Robin Best: But the redistricting process that happens every 10 years gives the people drawing these lines the opportunity to draw those lines in a way that might advantage one political party and disadvantage the other political party. After the last round of redistricting in 2010, [00:08:30] we saw a good number of people drawing those district lines actually do so to try to benefit one party at the expense of the other.

Hannah McCarthy: And that is what separates redistricting from gerrymandering. Right. Redistricting is a necessary democratic process, but gerrymandering is done to favor one party.

Nick Capodice: Yes, and there are three tried and true methods of gerrymandering packing, cracking and [00:09:00] stacking, and we're going to cover all three. First up, packing

Robin Best: When you pack partisans, you cram as many of them as you possibly can into a few districts as possible. So for example, if you are Republicans and you want to advantage your own party when you're drawing district lines, you would try to cram as many Democratic voters into a few districts as possible. And you kind of give them those districts, right? So say you [00:09:30] have 10 districts that you're trying to create. You put as many Democrats as you can into two of them where they constitute like a ninety five percent majority. You give them those two districts and then you spread out your Republicans across the remaining eight districts so that you receive a majority of the vote in each of those districts.

Nick Capodice: And cracking is the opposite. Let's say you're a Democrat-controlled legislature and you want to draw a map that favors your party, the Democrats. So what you do is you take a Republican district [00:10:00] and you crack it up, putting those Republican voters into nearby Democrat dominant districts. So instead of four super blue districts and one Super Red District, you have five barely blue districts, five Democratic elected officials.

Hannah McCarthy: Ok. It seems to me, then, that the most dastardly gerrymander, the perfect crime, if you will, would be to crack districts so deftly that your party wins every district by the slimmest margin. [00:10:30]

Nick Capodice: And that is a map, just like goofy kicking Donald Duck. Pennsylvania's 7th District, it so obviously cracked several urban neighborhoods into outlying rural areas that there was a public outcry and a lawsuit. Party leaders couldn't agree how to fix it, and it fell to the Pennsylvania Supreme Court to redraw the district more equitably in 2018.

Hannah McCarthy: All right. I got packing. I got cracking. But stacking is one that I have never heard of

Nick Capodice: Yeah, stacking is, in my opinion, the most nefarious. When [00:11:00] you stack a congressional district, you draw the lines to create a perceived majority in it. A majority of people who are either minorities and a lower income bracket or less educated three demographics that statistically due to various circumstances, have a much lower voter turnout than educated, wealthy white voters.

Hannah McCarthy: So it's kind of like misdirection. You grant a clear majority presence in a district. The official, elected [00:11:30] in November, is not the one who represents the majority of people who live there.

Nick Capodice: Absolutely. And there are other methods of gerrymandering that don't get talked about as much. I just want to give them a brief mention here. There's prison-based gerrymandering where a district with a large incarcerated population which cannot vote counts those citizens as part of that district's population instead of their hometown, giving that district more representative power. And finally, there's sweetheart gerrymandering. That's where incumbents [00:12:00] from both parties reach a tacit handshake, an agreement to draw the lines so everybody just gets to keep their job.

Hannah McCarthy: Who specifically is in charge of physically drawing these maps?

Nick Capodice: All right, here's Robin again.

Robin Best: Yes, that is actually probably the most important question. So in the majority of states, the state legislatures will draw the lines and then often the maps that they create have to be approved by the governor in a much smaller proportion of states. The lines are drawn by redistricting [00:12:30] commissions, some of which are independent, some of which are political, some of which are bipartisan. There are lots of different variations of those, but in the vast majority of states, they're still drawn by state legislatures.

Nick Capodice: And those variations are interesting. Some states have independent commissions that draw the maps, and each commission is completely different. California's redistricting commission comprises five Democrats, five Republicans and four individuals unaffiliated with any party drawn by a lottery. But as of right now, maps are [00:13:00] drawn by the state legislature in thirty three states.

Robin Best: And as you can imagine, you know, the state legislatures are not entirely neutral observers of elections. So we actually see we tend to see the more egregious gerrymanders occur as a result of the lines that are drawn by state legislatures with approval of the governor. So when one party, for example, controls all three branches of the state government, we call that a trifecta. Under those trifecta, [00:13:30] we are likely to see the more egregious gerrymander to take place. If there is divided control, so a legislature of one party and a governor from another party, we're less likely to see those types of kind of egregious partisan gerrymanders.

Hannah McCarthy: As to the result of those different gerrymanders, I do happen to know that they are tremendously effective. Most significantly, I know that in 2012, Democrats received over a million more votes for the House, but [00:14:00] the GOP won a thirty three seat majority. Which brings me to a bigger question. Is this legal?

Nick Capodice: A good question, and one that I'm going to get to right after the break.

Hannah McCarthy: Ok, but before that, I want to tell listeners that they can read all about the deep dives that are too full of ephemera and trivial tidbits to make it into our show in our free, biweekly newsletter. It's called extra credit. You can subscribe at our website, civics101podcast.org

Nick Capodice: And quickly, speaking [00:14:30] of reading, Hannah and I took the stuff we've learned from making three years worth of episodes and compressed it into a book. It's called A User's Guide to Democracy, How America Works. It's illustrated by the wonderful New Yorker cartoonist Tom Toro. You can get it wherever you get your books.

Nick Capodice: Ok, we're back, where were we?

Hannah McCarthy: You were about to answer the question of whether all of this is legal.

Nick Capodice: Ok. Here's Nancy Miller again.

Nancy Miller: So there were two cases in the nineteen sixties Reynolds V. Sims and Baker [00:15:00] V. Carr. So everybody's probably mostly familiar with Baker V. Carr, because that's the congressional one. Reynolds V. Sims handled state legislative districts, so it's basically the same principle that the districts you draw have to allow for roughly equal representation.

Nick Capodice: Both of these cases ruled that redistricting is a justiciable issue. It's a funny word. Justiciable. Justiciable means it's something that can be addressed by the Supreme Court or the State Supreme Court. And those two decisions dealt with equal numbers [00:15:30] of people in districts that malapportionment thing we talked about earlier. These are the cases that ruled we are obligated to redraw our maps after every census, and you can't draw a district so that it has significantly fewer citizens than another.

Hannah McCarthy: Did we redraw them at a different time prior to these court cases?

Nancy Miller: Prior to the nineteen sixties, the districts were just redrawn whenever the state felt like it. Pretty much so. There was a whole, yeah. So there was a whole lot of malapportionment.

Nick Capodice: But while [00:16:00] the Supreme Court ruled that in equal numbers of people in a state and federal districts is unconstitutional when it comes to the issue of partisan gerrymandering, I'm talking, cracking, packing and stacking. That is something else entirely.

Chief Justice Roberts: And others set forth, in our opinion. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. We vacate the judgments below and remand with instructions to dismiss...

Nick Capodice: That was Chief Justice John Roberts announcing the 2019 [00:16:30] decision in Rucho V. Common Cause. It was a five to four decision which stated that partisan gerrymandering claims are not justifiable. The Supreme Court cannot rule on questions of a political nature, and it's no surprise that John Roberts wrote the opinion because a year earlier, in another case, he referred to methods to determine partisan gerrymandering as "sociological gobbledygook."

Hannah McCarthy: I didn't know you were allowed to use the word gobbledygook when you were a chief justice. So we [00:17:00] know that this is happening, political scientists agree that gerrymandering is real, but it is not technically illegal.

Nick Capodice: It is not technically illegal at the federal level. Some states have legislation that bans certain types of gerrymander, like the prison gerrymander we spoke of earlier. Twenty four states have laws requiring that maintaining communities of interest has to be considered when they're drawing the maps. But even then, it's not easy to prove in a court of law if gerrymandering is happening [00:17:30]. And Justin Levitt told me that just because a map looks strange and snaky, that doesn't mean it's necessarily a gerrymander.

Justin Levitt: It's dangerous to judge a book by its cover. And so you can have some really nice looking districts that do some pretty bad things, and you can have some strange looking districts that do some pretty great things.

Hannah McCarthy: So we've talked about strange and like bad maps a lot so far. But can you give me an example of a strange but positive map?

Nick Capodice: Yeah, and radio [00:18:00] is a bad medium to talk about map design, but listeners should take a look at Illinois's 4th Congressional District. It looks absurd. It's like, what do you call the thing you like in a movie and you say... a clapperboard? It's like a clapperboard on a movie set. But what that strange clapperboard district does is it unites two Latino communities that share a lot of characteristics and thus a lot of representational needs.

Justin Levitt: And so it's not often the strangely drawn nature of a district that [00:18:30] tells you whether it's good or bad. People make assumptions just like they make assumptions about other people based on how they look that aren't always true.

Hannah McCarthy: Can I ask about the argument that we should just do away with human beings drawing districts entirely and just let a computer do it randomly?

Nick Capodice: Yeah, I always thought, that's like the perfect solution. It's just, you know, take the humans out of the equation, and there are a lot of people who do advocate for that. But I want to share two arguments against random redistricting. First off, Robin said even [00:19:00] that could favor one party over the other.

Robin Best: The problem was kind of the natural geography in the U.S. is that Democrats tend to be very packed together. So New York City, you can't really draw competitive districts in New York City. They are going to be packed full of Democrats, no matter what you do. So a lot of those votes are not going to kind of be effectively used. They're just going to be wasted. So the entire country actually kind of looks like that. So you have Democrats that are kind of packed more tightly [00:19:30] into these urban geographic centers and Republican votes that are distributed kind of more efficiently is what we call it in terms of elections across the other areas in the state. So that if you just kind of let the computer draw the maps, you're likely to just perpetuate that kind of natural gerrymander that's already in place, which is then going to end up being a bit biased against Democrats and in favor of Republicans.

Nick Capodice: And finally, Justin said something that made me realize that when I was staring at maps and numbers, [00:20:00] I had lost sight of the whole reason we have congressional districts in the first place. Hannah, why do we elect our representatives in the United States?

Hannah McCarthy: Because they represent us. It is, it's right there in their name, representative. And if we feel they don't do a good job representing us, we get to pick someone else

Nick Capodice: And it's much easier to gauge how well they're doing at it if people in their district have things in common.

Justin Levitt: Sometimes those are geographic [00:20:30]. People from a particular town or particular county. Sometimes that's based on industry. Sometimes it's based on racial or ethnic affiliation. It can be based on lots of things. But when people have common interests, when a community together as common interests, they can hold their representatives accountable for whether their representatives are standing up and representing those interests or not. If your district represents the tech sector, then your representative should be out there advocating for the tech sector in ways [00:21:00] that are Republican or Democrat, but should be advocating for the tech sector. If your district represents St. Louis, then your representative should be advocating for St. Louis. Whether they're Republican or Democrat should also be advocating for St. Louis. So there's a lot to be said for having districts where there's something common about the people who live in the district. There's something that binds them together beyond just party. And when you have districts that are created to reward or punish friends or enemies, that [00:21:30] makes it really hard to hold the representatives accountable.

Hannah McCarthy: So when I asked if gerrymandering is legal, the answer is kind of like the answer to Can I make a right on a red light? It depends where you are.

Nick Capodice: Yeah, though I will add there is language in the Freedom to Vote Act, which was introduced in the Senate in October of Twenty Twenty One, which explicitly bans partisan gerrymandering, and it puts up safeguards to fix maps that are unfairly drawn. But [00:22:00] the bill did not get the 60 votes needed to overcome the filibuster. But to your question, gerrymandering can be legal depending on your state.

Hannah McCarthy: May I take the question just one step further?

Nick Capodice: Yeah.

Hannah McCarthy: Is gerrymandering cheating?

Nick Capodice: That was a real... That was a really hard question, because like when you Google is gerrymandering cheating, you're not going to get an answer. Yeah, I didn't. I didn't ask Robin that when I was interviewing her, so I wrote her an [00:22:30] email after to ask that exact question. And here's her response to Is gerrymandering cheating? She says, I think it would be fair to say that partisan gerrymandering violates our notions of fairness and democratic principles. So would most of the population view it as cheating, even if it's not explicitly illegal? Yes. Probably.

Nick Capodice: And [00:23:00] that is it for gerrymandering. Today's episode was produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy: Thank you. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and stan of the Nicholas Cage Vehicle, Valley Girl. Music.

Nick Capodice: Music in today's episode by Blue Note Sessions, Sir Cubworth, Quincas Moreira, Cory Gray, Makiah Beats, Ikimashu Oi, and that composer with the chords never miss-keyed, Chris Zabriskie.

Hannah McCarthy: Civics 101 is a production of Nhpr.org New [00:23:30] Hampshire Public Radio.


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After 9/11: Department of Homeland Security

The terrorist attacks on September 11th, 2001, made one thing very obvious: our country’s national security strategy was flawed. What followed was one of the biggest reorganizations of our federal government in history: the creation of the Department of Homeland Security in November, 2002.

What about 9/11, the attacks, and their aftermath, made it possible for the government to transform, in just over a year? And how has that transformation changed how our government makes decisions about threats to our country, and responds to them?

Helping us untangle this story are: David Schanzer, the director of the Triangle Center on Terrorism and Homeland Security at Duke University; Darren Davis, a politics professor at the University of Notre Dame who studies public opinion and political behavior; and Eileen Sullivan, the Homeland Security Correspondent for the New York Times.

Editor’s note: A previous version of this episode misstated that prior to 9/11, a person applied for a visa through the Immigration and Naturalization Service.

Click here for a Graphic Organizer for students to fill out while listening to the episode

 

Episode Resources

Christina’s attempt to organize the Department of Homeland Security by mission. To find DHS’s complete organizational chart, click here.

 

Episode Segments


DHS final.mp3: Audio automatically transcribed by Sonix

DHS final.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Christina Phillips:
I have hit record! We are going.

Nick Capodice:
Well, let me start by saying it is lovely to see you in this chair, Christina.

Christina Phillips:
It is so wonderful to be here in the studio with you, face to face.

Nick Capodice:
Everyone. This is Christina Phillips. She is our senior producer, and she's going to be stepping in for Hannah this week. She is about to take us on a journey and she has been, quite frankly, busy.

Christina Phillips:
Yeah, so I thought I'd given myself a pretty straightforward task, which was explaining how September eleventh led to the creation of the Department of Homeland Security and why that matters.

Nick Capodice:
And this is the executive department that combined twenty two agencies from several different departments under one roof, right?

Christina Phillips:
Yeah. And created a few new agencies on top of that, all for the purpose of preparing for preventing and responding to domestic emergencies, especially terrorism. And let me tell you, just trying to figure out what moved where and why was a pretty enormous task. I ended up mapping it out on a whiteboard that is the size of a window. Wow. Imagine what it was like for the federal government to decide to do this in the first place, upend dozens of agencies and more than one hundred and sixty nine thousand employees, and fold them into a brand new department that has one mission to protect the homeland.

Nick Capodice:
Now this need to protect the homeland that didn't exist before 9/11.

Christina Phillips:
Well, our government has always had the role of providing for the common defense since the founding of our nation. It's in our constitution, right? But it took one day, one series of attacks for the government to be able to completely reshape what that means over an extremely compressed timeline. You'd think that something as serious as national security would still be subject to the slow grind of democracy that our government love so much. But it only took 14 months for Congress to pass the Homeland Security Act on November 25th, 2002 and establish a brand new executive department

Nick Capodice:
A very short time.

Christina Phillips:
And what I'm so interested in is what was it about that day, about that moment that made it so urgent, so possible for the government to start looking at itself differently enough so that it could create a new department? And once we've created this thing, what does that actually look like? Before we can talk about what the Department of Homeland Security is and does, we've got to take a step back and talk about how we got there.

Nick Capodice:
All right, let's get into it.

Christina Phillips:
Five strangers come into contact with the federal government. At the same time, a woman arrives at the Mexico side of the U.S.-Mexico border with a temporary work visa.

Archival Audio:
"The National Weather Service has issued a tornado warning."

Christina Phillips:
An emergency services dispatcher in Missouri issues a tornado warning.

Christina Phillips:
The captain of a shipping vessel from England sails into a port in Newark, New Jersey. The vice president climbs into a car that takes her to a speaking engagement near the U.S. Capitol.

Archival Audio:
"This is a final boarding call for the..."

Christina Phillips:
A man arrives at an airport in New York City to board a flight.

Christina Phillips:
What each of these people have in common is that they are face to face with the Department of Homeland Security, but their experiences would have been very different if they happened prior to 9/11. Before the terrorist group Al-Qaida hijacked four planes and killed nearly 3000 civilians in an attack on U.S. soil.

Archival Audio:
Eyewitness News. The unthinkable happened today the World Trade Center.

Archival Audio:
Both towers gone and we are all and we're just beginning to understand the extent of the catastrophe.

President Bush:
Tonight is the most extensive reorganization of the federal government since the 1940s. During his presidency, Harry Truman recognized that our nation...

Christina Phillips:
This is the story of how the government transformed itself after the terrorist attacks of September 11, 2001, by creating a new executive department designed specifically to prevent and respond to threats. So Nick, what do you remember about the creation of the Department of Homeland Security?

Nick Capodice:
I remember it was swift and massive.

Christina Phillips:
Yeah, this was the biggest reorganization of the federal government since 1947, which, by the way, that reorganization was also because of national security. It was called the National Security Act of 1947, and it moved military operations like the Army, Navy and Air Force under a Department of Defense and created the CIA and the National Security Council.

Nick Capodice:
And this was after World War Two with a brewing Cold War on the horizon. But September 11th was not a war. It was an attack, and it took place on a single day.

Christina Phillips:
I asked David Schanzer, who's the director of the Triangle Center on Terrorism and Homeland Security at Duke University, to walk me through the aspects of the 9/11 terrorist attacks that felt different from anything the government had responded to before.

David Schanzer:
The attacks demonstrated multiple vulnerabilities and multiple, you know, gaps and things that went wrong during the day.

Christina Phillips:
David was a staffer for the U.S. Senate on 9/11, and he was there for the creation of the Department of Homeland Security. He talks about some of the systems that were exploited by Al Qaida.

David Schanzer:
All the hijackers were able to enter the United States. Their applications were generally fraudulent, but they entered. They got visas to come into the US.

Christina Phillips:
I just want to pause here because that's two agencies in two different departments right there. Before nine eleven, a person applied for a visa through the Immigration and Naturalization Service, which was in the Justice Department. And when they reach the border like an airport, they pass through U.S. customs, which was in the Treasury Department.

Nick Capodice:
I think I'm starting to see where you're going here.

David Schanzer:
Our aviation system, of course, was shown to be extremely vulnerable that they could bring knives on planes. And we know nothing about people as they were boarding.

Nick Capodice:
And that's airport security, which used to be just private security agencies. When I was a kid, there was a metal detector, but that was about it. You didn't even need an I.D. to get on a plane back then. You could just walk up to the gate.

Christina Phillips:
Well before 9/11, there was something called the computer assisted passenger prescreening system, or CAPPS, which was shared between the Federal Aviation Administration and the FBI. It was created in the 1990s because of concerns about terrorism, so certain passengers would have their checked baggage screened for explosives. But you're right, there was minimal security screening for most passengers, and airlines had to hire their own security. The Transportation Security Administration did not exist.

David Schanzer:
They were shown to be a lack of real coordination between the different law enforcement and intelligence entities. The CIA knew that al Qaeda was planning some sort of spectacular attack. They didn't know where or when. Of course, a lot of that information didn't get passed on to the FBI. The FBI was tracking some people. Then they lost track of them.

Christina Phillips:
By the way, we covered this in more depth in our episode about the FBI. So check that out. The point is, the style of terrorist attacks planned by Al Qaida revealed just how vulnerable our country was and that the existing approach to national security wasn't sufficient and that there were some security measures that didn't exist at all.

David Schanzer:
So all of these issues led to this movement to create many different reforms. The most comprehensive one was to create a Department of Homeland Security that was placing all the different agencies with responsibility for the protection. The regulation, essentially the creation of borders, whether they be borders by air, by sea, by land, all into one department.

Nick Capodice:
But terrorism wasn't unheard of in the United States until September 11th. And it wasn't even the first terrorist attack on the World Trade Center. I remember in 1993, a terrorist detonated a bomb in a truck in the parking garage below the North Tower.

Christina Phillips:
That's what I think is key here. The federal government had been thinking about new threats to national security, but politicians were also thinking about everything else the economy, health care, education. There had actually been a study in 1998 called the Commission on National Security in the 21st Century that was quote "the most comprehensive review of American security since the National Security Act of 1947"

Nick Capodice:
Which, as you said earlier, was the last time the government had undergone a major reorganization.

Christina Phillips:
The study was more commonly known as the Hart Rudman Commission after lead author Gary Hart and Warren Rudman. They said that a lack of coordination across agencies in the circumstances of a terrorist attack or disaster was a huge concern. In fact, Warren Rudman, a former Republican senator from New Hampshire, talked about this exact problem in February 2001 on C-SPAN

Nick Capodice:
February, seven months before nine eleven.

Warren Rudman:
Yes, the responsibility for dealing with that kind of a disaster in this country currently is spread across 46 federal agencies, which do not have good coordination with each other. We believe that this is such a serious threat that we're not talking about creating a new bureaucracy. We're talking about probably reducing the bureaucracy by moving the functions and these units into a Homeland Security Agency, which will then be.

Nick Capodice:
Oh, interesting. So that term Homeland Security was being tossed around in government circles before September 11.

Christina Phillips:
Yeah, the term is not new. But before the September 11th attacks, the discussions around protecting the homeland were much more theoretical. I watched some of the congressional hearings about the Hart Rudman Commission, and the politicians were talking a lot about budgeting and turf. You know who's going to do what? Who is going to pay for it? What are we going to give up in order to do it? And what makes that national security threat go from something theoretical into an actual plan? And action has to do with the experience of the attacks for the public. The September 11th attacks felt new.

Darren Davis:
The crucial difference for nine 11 for the average American citizen was that there were innocent victims.

Christina Phillips:
This is Darren Davis. He's a professor of political science at the University of Notre Dame. He actually surveyed Americans right after 9-11 and asked how they were feeling in that moment about terrorist attacks and their government.

Darren Davis:
In the immediate aftermath. Many American citizens were thinking that there were more terrorist attacks to follow. So there's this belief that they needed to be protected.

Christina Phillips:
Darren talks about this trade off that people have to make between being protected from terrorism and being protected from the government's encroachment on our civil liberties.

Darren Davis:
When the government is attacked, when American citizens are attacked, when they've been attacked in the past. American citizens can be expected to give up their rights. Congress can be expected to concede to a more powerful president for fear of being considered unpatriotic.

Christina Phillips:
The media also played a role in this.

Darren Davis:
The media acquiescence to a more powerful president for fear of being considered unpatriotic.

Nick Capodice:
The coverage was relentless. There was nothing else being talked about on radio or TV or in newspapers for months, like my friend and I used to say, walking around whatever we'd see the sign that said, never forget. We're like, I don't think that's very likely. I don't think anybody's going to be forgetting this anytime soon.

Christina Phillips:
The media does set a tone and for example, in World War Two, when media was reporting on what was happening during the war, there were choices made like suppressing information until after an attack happened for the greater purpose of success in the war.

Nick Capodice:
So it's yeah, it's just so interesting in such a tenuous line, right? I'm keeping you misinformed for your safety and for the country's safety. It always leads to an ultimate question is this a good thing or not? So was that happening in the aftermath of the attacks on 9-11?

Christina Phillips:
Well, after 9-11, there was a lot of coverage of how the government was acting to keep people safe. There was a lot of opportunity for politicians to talk to the people. I mean, they were on the news all the time. And so there was a lot of access to the government and the government was getting a lot of access to the public through the media. Which brings me to the last big factor that made this massive reorganization possible. 9-11 had a uniting effect on the country.

Darren Davis:
Normally, the two political parties are deliberative. But one of the things I want to point out is that this came months after the 2000 election between Bush and Gore, and the government was extremely divided because that election had to be decided by the Supreme Court

Christina Phillips:
Because the decision is being taken out of the hands of the people and put into the hands of the Supreme Court. It just draws out this political tension. It was a really divisive moment, especially when it came to trusting that democratic process in supporting the incoming president

Darren Davis:
And politicians, and the public began to rally as expected behind George Bush.

Christina Phillips:
After nine 11, President Bush's approval rating rose from around 60 percent to 92 percent, including 88 percent of Democrats. This was one of the highest approval ratings for a president ever.

Nick Capodice:
To add to that, presidents and congresses are more effective when they have high approval ratings. They can get more done.

Darren Davis:
So here's the irony of all of this is that over time, as the government began to use. Its ability to protect its citizens, it began to lose support when the government began to lose support and trust declined, people were unwilling at that point to concede their civil liberties. So the immediate context of 911 is really, really important. What happened over time is also important because it shows that without trust, government can't do very much.

Nick Capodice:
We're going to keep exploring this new umbrella department, but first we're going to take a quick break. But before we do, if anyone is interested in all the ephemera, trivia and stuff that gets left on the cutting room floor of our episodes, Hannah and I write a biweekly newsletter called Extra Credit. It's free, and you can sign up at our website, civics101podcast.org.

Christina Phillips:
Civics 101 is produced by a nonprofit journalism outlet, New Hampshire Public Radio. We can only do what we do because listeners just like you chip in a few bucks, sometimes more than a few, to support our work. If you'd like to donate to the cause. Head over to Civics101podcast.org or click the link in the show notes.

Nick Capodice:
All right, so you've got this massive pressure from the American people to focus on terrorism. What were the first steps towards this massive consolidation to address that?

Christina Phillips:
The first thing President Bush did was issue an executive order creating a new Office of Homeland Security on September 20th, 2001. So this is not a department. President Bush said that this office and the director he appointed would develop a national strategy of Homeland Security and coordinate efforts across other departments.

Nick Capodice:
Had they plan to create this department by this time?

Christina Phillips:
No, no. So at this point, it's really like President Bush recognized that there's a whole bunch of agencies that are responding to terrorism, and he says, OK, I'm going to put this one guy in charge of helping communicate and organize all of these departments and agencies that are all trying to respond to terrorism in different ways.

Nick Capodice:
He's going to figure out a way to get them to, like, talk to each other.

Christina Phillips:
Yes, and and set a plan for how they'll respond in the future.

Nick Capodice:
So tell me about the guy they decided to put in charge.

Christina Phillips:
That would be Tom Ridge. He is the governor of Pennsylvania, and he started on October 8th, 2001.

Nick Capodice:
And what was Tom Ridge actually able to do? Could he give orders to the FBI, to the DOJ Department of Transportation just to make sure they're all now focused on this new Homeland Security strategy?

Christina Phillips:
So you're not the only person to ask that question.

Archival Audio:
If there's a bioterrorist, a large scale bioterrorist act in the future, who is in charge of the response, who has authority to make decisions related to the response, but I'm trying to find out basically is are you the boss here or are you a coordinator?

Tom Ridge:
If there is A well, I guess, you know, the coordinator, it's like a conductor with an orchestra. The music doesn't start playing until he taps the baton.

Christina Phillips:
That was a reporter at a press conference 10 days after Ridge started his official duties as director. It was in the middle of this other big attack that happened after 911, when someone mailed anthrax spores to congressional delegates and news agencies from a New Jersey post office, which ended up killing five people.

Archival Audio:
In just a week's time, we have had four confirmed cases of anthrax, all with media connections and a number of anthrax scares as well.

Christina Phillips:
In this press conference to explain how the government was responding to the anthrax attack and explaining his role as this new director of Homeland Security Tom Ridge was on stage with the head of the FBI leaders from the Department of Health and Human Services, the postmaster general, and several other people who were all responding to the anthrax attack. Ok, I promise this is related, but when I trained to be a wilderness EMT,

Nick Capodice:
You were a wilderness EMT.

Christina Phillips:
Yes, I was. It was mostly for my own safety, especially when I went on hikes. I'm very accident prone. But anyway, one thing you learn in search and rescue situations where you actually need to go out and find someone and provide medical attention in the wilderness like an injured hiker is that there needs to be an obvious hierarchy and there are people who understand what their role is. The person carrying the water, the person following the map, the person monitoring the patient, everyone there knows what they're doing and what everyone else is doing. And you've all agreed ahead of time on how it will work. And there's one person who's in charge of the whole thing, which is ideally how things could have worked with Tom Ridge in this new Office of Homeland Security.

Nick Capodice:
The difference here between the government and a hiker is that this is a federal emergency, but the government is still running at the same time.

Christina Phillips:
Yeah, and they're not used to responding to attacks like these in a coordinated way. They're writing the manual as they go and the guy in charge of making sure everything comes together. Tom Ridge is the newest person on the team.

Nick Capodice:
It sounds like a recipe for utter chaos.

Christina Phillips:
Yeah, that press conference showed that.

Tom Ridge:
If we think we've overlooked something, I make the call.

Nick Capodice:
So how do we get from an Office of Homeland Security to the creation of this massive department?

Christina Phillips:
It was later clear to many people that this solution an Office of Homeland Security with Tom Ridge as the director, wasn't enough. Agencies involved in national security were spread across departments with separate missions, and coordination wasn't happening as well as it needed to. In the months after the attacks on September 11th, as the government had to grapple with the major holes in national security, as the public had united around President Bush and was seeking protection, Bush announced the plan to establish a new cabinet Department of Homeland Security.

Christina Phillips:
I've been thinking of it like a bucket, the Homeland Security bucket, if you will. There would be twenty two agencies from other department buckets and they were going to be new agencies put in there. But that bucket didn't have everything.

Nick Capodice:
So Homeland Security wasn't this catch all. There's still work happening in other agencies that had to do with national security that weren't in the department.

Christina Phillips:
One of the major things that was not put in the Homeland Security bucket was the intelligence community, the Justice Department, FBI, CIA. So President Bush had to distinguish how the Department of Homeland Security would fit in with those other agencies.

Eileen Sullivan:
Dhs is primarily a law enforcement agency. It is enforcing the laws that the administration argues for in the Congress passes. And so they're not necessarily coming up with the laws. They're just but they are. They are enforcing them.

Christina Phillips:
This is Eileen Sullivan. She's the New York Times correspondent for the Department of Homeland Security.

President Bush:
Tonight, I propose a permanent cabinet level Department of Homeland Security to unite essential agencies that must work more closely together. Among them the Coast Guard, the Border Patrol, the Customs Service, immigration officials, the Transportation Security Administration and the Federal Emergency Management Agency. Employees of this new agency will come to work every morning knowing their most important job is to protect their fellow citizens.

Nick Capodice:
So have we reached the moment when you can explain what this whole new department looks like?

Christina Phillips:
Yes, it is time to pull out the giant whiteboard where I mapped out which agencies were absorbed into Homeland Security and how they fit into the purpose of the department, which President Bush very helpfully broke down into four different missions.

Nick Capodice:
By the way, we'll make sure to include a photo of this beast of a whiteboard on our website so you can follow along if you want at civics101podcast.org. Let's go through them one at a time. Tell me about mission number one.

Christina Phillips:
Mission number one is border control.

President Bush:
This new agency will control our borders and prevent terrorists and explosives from entering our country.

Christina Phillips:
Remember how I said there were four missions? Yeah, well, this first mission also has four different agencies in it focused on protection, enforcement and security at the border.

Nick Capodice:
So I see here the first one is U.S. Customs and Border Protection. Is that a new agency?

Christina Phillips:
Yes. So it's a new agency that absorbed customs and immigration agencies from the Treasury and Justice Department, as well as plant and animal inspection from the Department of Agriculture.

Nick Capodice:
So basically, like everything that comes across the border.

Christina Phillips:
Yeah, everything.

Christina Phillips:
The second agency is U.S. Immigration and Customs Enforcement, which is also known as ICE, and this is also a new agency. It's created specifically to protect the U.S. from cross-border crime and illegal immigration.

Nick Capodice:
Number three is another new agency under this border control mission the Transportation Security Administration. The TSA, which, as we already mentioned, did not exist before nine eleven.

Christina Phillips:
Yeah, this is the new law enforcement arm that puts airport security directly in the hands of the government.

Nick Capodice:
And the final part of the first mission of border control is the U.S. Coast Guard, which I always thought was part of the military.

Christina Phillips:
Yeah, it depends. The Coast Guard is technically overseen by the Department of Homeland Security and Peace, Peacetime and the Navy in wartime. Ok. It's not a simple system, especially considering that we've spent the majority of the 20 years since 9/11 at war.

Nick Capodice:
Ok, that's mission one. What's Mission two?

Christina Phillips:
Emergencies.

President Bush:
It will work with state and local authorities to respond quickly and effectively to emergencies.

Christina Phillips:
This is the Federal Emergency Management Administration, or FEMA, which was designed to coordinate disaster response between local and federal agencies. And it did exist before 9/11. But under the new reorganization, there was an additional focus on coordinating the response to terrorism related disasters.

Eileen Sullivan:
One of the original concepts of Homeland Security was that it would be the one to talk to state and local officials about about threats and about what they need to know. And so instead of getting multiple reports from different federal agencies, it should all be one.

Christina Phillips:
Homeland Security absorbed FEMA and FEMA absorbed the nuclear incident response team from the Department of Energy, the domestic emergency support team from the Department of Justice and the Center for Domestic Preparedness from the Justice Department and the FBI.

Nick Capodice:
Wow. So Mission Two: Emergency response. What about Mission Three?

Christina Phillips:
I'm not sure I can actually summarize this one into a couple of words. Let's just listen to President Bush.

President Bush:
It will bring together our best scientists to develop technologies that detect biological, chemical and nuclear weapons and to discover the drugs and treatments to best protect our citizens.

Nick Capodice:
I'm going to bite my tongue about the nuclear thing. Tell me, what is Bush saying here?

Christina Phillips:
From what I can tell, this is the research and development arm of Homeland Security, but it's basically six different things. What's it called?

Christina Phillips:
The Science and Technology Directorate Directorate.

Nick Capodice:
Can you give me some examples of what a directorate actually looks like?

Christina Phillips:
So one thing the directorate has done is develop technology that helps first responders communicate effectively in emergencies. The directorate also works a lot with private companies that are developing the technology. The government may want to use things like security technology for screening people and goods or threat forecasting.

Nick Capodice:
Ok. Mission Three: Science and Technology Directorate. What's mission four?

Christina Phillips:
Information analysis and infrastructure protection.

President Bush:
And this new department will review intelligence and law enforcement information from all agencies of government and produce a single daily picture of threats against our homeland. Analysts will be responsible for imagining the worst and planning to counter it.

Nick Capodice:
So cybersecurity and data gathering. But I also see the Federal Protective Service, which I don't know anything about, and the U.S. Secret Service, which I do, are also in this umbrella.

Christina Phillips:
Yeah, I had to look this up to the Federal Protective Service is the law enforcement that protects federal properties around the U.S. like federal courthouses and post offices.

Nick Capodice:
And the Secret Service, which was initially created to combat counterfeiting, provide security for the president, vice president, White House. But they still do investigate crimes against the U.S. financial system. With the reorganization, this massive Cristina, I assume it's not as simple as telling all these people, OK, you used to work for this department and now you're being moved to another department and your new mission is to protect the American people and prevent terrorists from killing Americans.

Christina Phillips:
One of the biggest hurdles for the department was Congress, specifically congressional oversight. See, in our system of checks and balances, one check on the power of the executive department is congressional committees. They monitor the work being done in the executive branch, and that work didn't stop when agencies were moved into a new department. Here's Eileen Sullivan, the Homeland Security correspondent for the New York Times.

Eileen Sullivan:
So while the agencies were pulled from their parent departments and formed DHS, the Congress didn't really give anything up.

Christina Phillips:
At the start, all the committees that were overseeing those individual agencies continued to oversee them under Homeland Security. It was over a hundred different committees by some count, 123.

Nick Capodice:
How does that number compare to other departments?

Christina Phillips:
Well, the Department of Defense, which is the largest cabinet department, is overseen by 30 committees. At one point, Secretary Chertoff, who was appointed in 2005, said that the department had written over 5000 briefings and attended over 300 hearings for Congress in a single year,

Nick Capodice:
And has that number changed since.

Christina Phillips:
Over the years, the number of committees have been winnowed down to around 90.

Nick Capodice:
So not much change at all,

Eileen Sullivan:
Which just shows you how difficult it is to take away turf anywhere, ever.

Christina Phillips:
And that kind of turf battle was bad, even when the focus of the department was still pretty narrow.

David Schanzer:
Well, first of all, there was really an almost exclusive laser like focus on the threat from Al Qaida and other like minded groups.

Christina Phillips:
That's David Schanzer, who was working in Congress on Homeland Security in the early years of the department.

David Schanzer:
Another nine 11 style attack where people or weaponry or explosives or weapons of mass destruction could be smuggled into into the U.S. and deployed.

Nick Capodice:
So what happens when time goes on and the focus isn't so laser like? What changed over the next 20 years?

Eileen Sullivan:
Current events have kind of defined each chapter of the department.

Christina Phillips:
As the department has encountered new challenges and new leadership. Its mission has evolved. There have been some major failures, like in 2005, when Hurricane Katrina struck the Gulf Coast and in each successive administration after Bush, the commander in chief, appointed heads of the department that fulfilled their agendas. You can see over time how the department's power has been applied in new ways, determined by what the government and its leader consider the biggest threats to our country. For example, President Obama made border security and cybersecurity. His major focuses during his presidency. He about doubled the number of Border Patrol agents and unmanned aerial vehicles, also known as drones, that surveyed the border.

Nick Capodice:
And then what happened under President Trump?

Christina Phillips:
He wanted to limit who was allowed to enter the United States legally or not. This included his highly controversial executive actions that restricted travel to the U.S. for citizens from several majority Muslim countries.

Archival Audio:
Protesters gathered outside JFK International Airport in New York and demanded the release of refugees blocked from entering the United States.

Christina Phillips:
And under President Trump, the federal government also enforced a family separation policy at the U.S.- Mexico border.

Archival Audio:
Border Patrol officials said today that since April, more than 2300 children have been separated from their families, with some held in makeshift tent cities.

Nick Capodice:
And what's most interesting to me is that the Department of Homeland Security was specifically created to help prevent something like 9/11 from ever happening again. But with each successive administration, it's become much more than that.

Christina Phillips:
This is a story of what happens when the way our government does things is held up to a microscope in a moment of violence and pain. Pair that with a public united by fear, anger and patriotism, and the outcome is a massive reorganization under a short timeline where the government is trying to protect the nation as its writing its own manual on what that actually means.

Christina Phillips:
The Department of Homeland Security has given us a name for our feeling of safety and security the homeland and has drawn lines around the borders of safe and dangerous. And in the 20 years since, given our leaders the tools to enforce them, from cybersecurity to law enforcement at the border, to screenings at the airport.

Christina Phillips:
So that's it for the Department of Homeland Security. This episode was written and produced by me, Christina Phillips, with help from You Nick Capodice and Hannah McCarthy.

Nick Capodice:
Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer.

Christina Phillips:
Music In this episode by Audiobringer, Broke for Free, KiloKaz, Martin Skeleton's Blue Dot Sessions, Makiah, UNCan, Chris Zabriskie, Jason Leonard and Yung Kartz

Nick Capodice:
Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Transcript

DHS final.mp3

Christina Phillips: [00:00:03] I have hit record! We are going.

Nick Capodice: [00:00:09] Well, let me start by saying it is lovely to see you in this chair, Christina.

Christina Phillips: [00:00:13] It is so wonderful to be here in the studio with you, face to face.

Nick Capodice: [00:00:17] Everyone. This is Christina Phillips. She is our senior producer, and she's going to be stepping in for Hannah this week. She is about to take us on a journey and she has been, quite frankly, busy.

Christina Phillips: [00:00:28] Yeah, so I thought I'd given myself a pretty straightforward task, which was explaining how September eleventh led to the creation of the Department of Homeland Security and why that matters.

Nick Capodice: [00:00:40] And this is the executive department that combined twenty two agencies from several different departments under one roof, right?

Christina Phillips: [00:00:47] Yeah. And created a few new agencies on top of that, all for the purpose of preparing for preventing and responding to domestic emergencies, especially terrorism. And let me tell you, just trying to figure out what moved where and why was a pretty enormous task. I ended up mapping it out on a whiteboard that is the size of a window. Wow. Imagine what it was like for the federal government to decide to do this in the first place, upend dozens of agencies and more than one hundred and sixty nine thousand employees, and fold them into a brand new department that has one mission to protect the homeland.

Nick Capodice: [00:01:22] Now this need to protect the homeland that didn't exist before 9/11.

Christina Phillips: [00:01:27] Well, our government has always had the role of providing for the common defense since the founding of our nation. It's in our constitution, right? But it took one day, one series of attacks for the government to be able to completely reshape what that means over an extremely compressed timeline. You'd think that something as serious as national security would still be subject to the slow grind of democracy that our government love so much. But it only took 14 months for Congress to pass the Homeland Security Act on November 25th, 2002 and establish a brand new executive department

Nick Capodice: [00:02:01] A very short time.

Christina Phillips: [00:02:03] And what I'm so interested in is what was it about that day, about that moment that made it so urgent, so possible for the government to start looking at itself differently enough so that it could create a new department? And once we've created this thing, what does that actually look like? Before we can talk about what the Department of Homeland Security is and does, we've got to take a step back and talk about how we got there.

Nick Capodice: [00:02:29] All right, let's get into it.

Christina Phillips: [00:02:34] Five strangers come into contact with the federal government. At the same time, a woman arrives at the Mexico side of the U.S.-Mexico border with a temporary work visa.

Archival Audio: [00:02:43] "The National Weather Service has issued a tornado warning."

Christina Phillips: [00:02:46] An emergency services dispatcher in Missouri issues a tornado warning.

Christina Phillips: [00:02:51] The captain of a shipping vessel from England sails into a port in Newark, New Jersey. The vice president climbs into a car that takes her to a speaking engagement near the U.S. Capitol.

Archival Audio: [00:03:03] "This is a final boarding call for the..."

Christina Phillips: [00:03:04] A man arrives at an airport in New York City to board a flight.

Christina Phillips: [00:03:09] What each of these people have in common is that they are face to face with the Department of Homeland Security, but their experiences would have been very different if they happened prior to 9/11. Before the terrorist group Al-Qaida hijacked four planes and killed nearly 3000 civilians in an attack on U.S. soil.

Archival Audio: [00:03:25] Eyewitness News. The unthinkable happened today the World Trade Center.

Archival Audio: [00:03:29] Both towers gone and we are all and we're just beginning to understand the extent of the catastrophe.

President Bush: [00:03:36] Tonight is the most extensive reorganization of the federal government since the 1940s. During his presidency, Harry Truman recognized that our nation...

Christina Phillips: [00:03:47] This is the story of how the government transformed itself after the terrorist attacks of September 11, 2001, by creating a new executive department designed specifically to prevent and respond to threats. So Nick, what do you remember about the creation of the Department of Homeland Security?

Nick Capodice: [00:04:07] I remember it was swift and massive.

Christina Phillips: [00:04:10] Yeah, this was the biggest reorganization of the federal government since 1947, which, by the way, that reorganization was also because of national security. It was called the National Security Act of 1947, and it moved military operations like the Army, Navy and Air Force under a Department of Defense and created the CIA and the National Security Council.

Nick Capodice: [00:04:31] And this was after World War Two with a brewing Cold War on the horizon. But September 11th was not a war. It was an attack, and it took place on a single day.

Christina Phillips: [00:04:43] I asked David Schanzer, who's the director of the Triangle Center on Terrorism and Homeland Security at Duke University, to walk me through the aspects of the 9/11 terrorist attacks that felt different from anything the government had responded to before.

David Schanzer: [00:04:56] The attacks demonstrated multiple vulnerabilities and multiple, you know, gaps and things that went wrong during the day.

Christina Phillips: [00:05:06] David was a staffer for the U.S. Senate on 9/11, and he was there for the creation of the Department of Homeland Security. He talks about some of the systems that were exploited by Al Qaida.

David Schanzer: [00:05:15] All the hijackers were able to enter the United States. Their applications were generally fraudulent, but they entered. They got visas to come into the US.

Christina Phillips: [00:05:26] I just want to pause because that's three different departments right there. Before 9/11, a person applied for a visa through the State Department, and before entering the U.S. their visa was screened by the Immigration and Naturalization Service, which was in the Justice Department. And then their property was examined by U.S. customs, which was in the Treasury Department.

Nick Capodice: [00:05:45] I think I'm starting to see where you're going here.

David Schanzer: [00:05:48] Our aviation system, of course, was shown to be extremely vulnerable that they could bring knives on planes. And we know nothing about people as they were boarding.

Nick Capodice: [00:05:59] And that's airport security, which used to be just private security agencies. When I was a kid, there was a metal detector, but that was about it. You didn't even need an I.D. to get on a plane back then. You could just walk up to the gate.

Christina Phillips: [00:06:11] Well before 9/11, there was something called the computer assisted passenger prescreening system, or CAPPS, which was shared between the Federal Aviation Administration and the FBI. It was created in the 1990s because of concerns about terrorism, so certain passengers would have their checked baggage screened for explosives. But you're right, there was minimal security screening for most passengers, and airlines had to hire their own security. The Transportation Security Administration did not exist.

David Schanzer: [00:06:40] They were shown to be a lack of real coordination between the different law enforcement and intelligence entities. The CIA knew that al Qaeda was planning some sort of spectacular attack. They didn't know where or when. Of course, a lot of that information didn't get passed on to the FBI. The FBI was tracking some people. Then they lost track of them.

Christina Phillips: [00:07:02] By the way, we covered this in more depth in our episode about the FBI. So check that out. The point is, the style of terrorist attacks planned by Al Qaida revealed just how vulnerable our country was and that the existing approach to national security wasn't sufficient and that there were some security measures that didn't exist at all.

David Schanzer: [00:07:21] So all of these issues led to this movement to create many different reforms. The most comprehensive one was to create a Department of Homeland Security that was placing all the different agencies with responsibility for the protection. The regulation, essentially the creation of borders, whether they be borders by air, by sea, by land, all into one department.

Nick Capodice: [00:07:46] But terrorism wasn't unheard of in the United States until September 11th. And it wasn't even the first terrorist attack on the World Trade Center. I remember in 1993, a terrorist detonated a bomb in a truck in the parking garage below the North Tower.

Christina Phillips: [00:08:01] That's what I think is key here. The federal government had been thinking about new threats to national security, but politicians were also thinking about everything else the economy, health care, education. There had actually been a study in 1998 called the Commission on National Security in the 21st Century that was quote "the most comprehensive review of American security since the National Security Act of 1947"

Nick Capodice: [00:08:24] Which, as you said earlier, was the last time the government had undergone a major reorganization.

Christina Phillips: [00:08:29] The study was more commonly known as the Hart Rudman Commission after lead author Gary Hart and Warren Rudman. They said that a lack of coordination across agencies in the circumstances of a terrorist attack or disaster was a huge concern. In fact, Warren Rudman, a former Republican senator from New Hampshire, talked about this exact problem in February 2001 on C-SPAN

Nick Capodice: [00:08:53] February, seven months before nine eleven.

Warren Rudman: [00:08:57] Yes, the responsibility for dealing with that kind of a disaster in this country currently is spread across 46 federal agencies, which do not have good coordination with each other. We believe that this is such a serious threat that we're not talking about creating a new bureaucracy. We're talking about probably reducing the bureaucracy by moving the functions and these units into a Homeland Security Agency, which will then be.

Nick Capodice: [00:09:25] Oh, interesting. So that term Homeland Security was being tossed around in government circles before September 11.

Christina Phillips: [00:09:32] Yeah, the term is not new. But before the September 11th attacks, the discussions around protecting the homeland were much more theoretical. I watched some of the congressional hearings about the Hart Rudman Commission, and the politicians were talking a lot about budgeting and turf. You know who's going to do what? Who is going to pay for it? What are we going to give up in order to do it? And what makes that national security threat go from something theoretical into an actual plan? And action has to do with the experience of the attacks for the public. The September 11th attacks felt new.

Darren Davis: [00:10:04] The crucial difference for nine 11 for the average American citizen was that there were innocent victims.

Christina Phillips: [00:10:11] This is Darren Davis. He's a professor of political science at the University of Notre Dame. He actually surveyed Americans right after 9-11 and asked how they were feeling in that moment about terrorist attacks and their government.

Darren Davis: [00:10:24] In the immediate aftermath. Many American citizens were thinking that there were more terrorist attacks to follow. So there's this belief that they needed to be protected.

Christina Phillips: [00:10:35] Darren talks about this trade off that people have to make between being protected from terrorism and being protected from the government's encroachment on our civil liberties.

Darren Davis: [00:10:44] When the government is attacked, when American citizens are attacked, when they've been attacked in the past. American citizens can be expected to give up their rights. Congress can be expected to concede to a more powerful president for fear of being considered unpatriotic.

Christina Phillips: [00:11:03] The media also played a role in this.

Darren Davis: [00:11:05] The media acquiescence to a more powerful president for fear of being considered unpatriotic.

Nick Capodice: [00:11:15] The coverage was relentless. There was nothing else being talked about on radio or TV or in newspapers for months, like my friend and I used to say, walking around whatever we'd see the sign that said, never forget. We're like, I don't think that's very likely. I don't think anybody's going to be forgetting this anytime soon.

Christina Phillips: [00:11:33] The media does set a tone and for example, in World War Two, when media was reporting on what was happening during the war, there were choices made like suppressing information until after an attack happened for the greater purpose of success in the war.

Nick Capodice: [00:11:49] So it's yeah, it's just so interesting in such a tenuous line, right? I'm keeping you misinformed for your safety and for the country's safety. It always leads to an ultimate question is this a good thing or not? So was that happening in the aftermath of the attacks on 9-11?

Christina Phillips: [00:12:04] Well, after 9-11, there was a lot of coverage of how the government was acting to keep people safe. There was a lot of opportunity for politicians to talk to the people. I mean, they were on the news all the time. And so there was a lot of access to the government and the government was getting a lot of access to the public through the media. Which brings me to the last big factor that made this massive reorganization possible. 9-11 had a uniting effect on the country.

Darren Davis: [00:12:29] Normally, the two political parties are deliberative. But one of the things I want to point out is that this came months after the 2000 election between Bush and Gore, and the government was extremely divided because that election had to be decided by the Supreme Court

Christina Phillips: [00:12:52] Because the decision is being taken out of the hands of the people and put into the hands of the Supreme Court. It just draws out this political tension. It was a really divisive moment, especially when it came to trusting that democratic process in supporting the incoming president

Darren Davis: [00:13:08] And politicians, and the public began to rally as expected behind George Bush.

Christina Phillips: [00:13:16] After nine 11, President Bush's approval rating rose from around 60 percent to 92 percent, including 88 percent of Democrats. This was one of the highest approval ratings for a president ever.

Nick Capodice: [00:13:28] To add to that, presidents and congresses are more effective when they have high approval ratings. They can get more done.

Darren Davis: [00:13:36] So here's the irony of all of this is that over time, as the government began to use. Its ability to protect its citizens, it began to lose support when the government began to lose support and trust declined, people were unwilling at that point to concede their civil liberties. So the immediate context of 911 is really, really important. What happened over time is also important because it shows that without trust, government can't do very much.

Nick Capodice: [00:14:12] We're going to keep exploring this new umbrella department, but first we're going to take a quick break. But before we do, if anyone is interested in all the ephemera, trivia and stuff that gets left on the cutting room floor of our episodes, Hannah and I write a biweekly newsletter called Extra Credit. It's free, and you can sign up at our website, civics101podcast.org.

Christina Phillips: [00:14:38] Civics 101 is produced by a nonprofit journalism outlet, New Hampshire Public Radio. We can only do what we do because listeners just like you chip in a few bucks, sometimes more than a few, to support our work. If you'd like to donate to the cause. Head over to Civics101podcast.org or click the link in the show notes.

Nick Capodice: [00:14:57] All right, so you've got this massive pressure from the American people to focus on terrorism. What were the first steps towards this massive consolidation to address that?

Christina Phillips: [00:15:07] The first thing President Bush did was issue an executive order creating a new Office of Homeland Security on September 20th, 2001. So this is not a department. President Bush said that this office and the director he appointed would develop a national strategy of Homeland Security and coordinate efforts across other departments.

Nick Capodice: [00:15:28] Had they plan to create this department by this time?

Christina Phillips: [00:15:30] No, no. So at this point, it's really like President Bush recognized that there's a whole bunch of agencies that are responding to terrorism, and he says, OK, I'm going to put this one guy in charge of helping communicate and organize all of these departments and agencies that are all trying to respond to terrorism in different ways.

Nick Capodice: [00:15:48] He's going to figure out a way to get them to, like, talk to each other.

Christina Phillips: [00:15:51] Yes, and and set a plan for how they'll respond in the future.

Nick Capodice: [00:15:56] So tell me about the guy they decided to put in charge.

Christina Phillips: [00:15:59] That would be Tom Ridge. He is the governor of Pennsylvania, and he started on October 8th, 2001.

Nick Capodice: [00:16:06] And what was Tom Ridge actually able to do? Could he give orders to the FBI, to the DOJ Department of Transportation just to make sure they're all now focused on this new Homeland Security strategy?

Christina Phillips: [00:16:19] So you're not the only person to ask that question.

Archival Audio: [00:16:23] If there's a bioterrorist, a large scale bioterrorist act in the future, who is in charge of the response, who has authority to make decisions related to the response, but I'm trying to find out basically is are you the boss here or are you a coordinator?

Tom Ridge: [00:16:37] If there is A well, I guess, you know, the coordinator, it's like a conductor with an orchestra. The music doesn't start playing until he taps the baton.

Christina Phillips: [00:16:47] That was a reporter at a press conference 10 days after Ridge started his official duties as director. It was in the middle of this other big attack that happened after 911, when someone mailed anthrax spores to congressional delegates and news agencies from a New Jersey post office, which ended up killing five people.

Archival Audio: [00:17:03] In just a week's time, we have had four confirmed cases of anthrax, all with media connections and a number of anthrax scares as well.

Christina Phillips: [00:17:10] In this press conference to explain how the government was responding to the anthrax attack and explaining his role as this new director of Homeland Security Tom Ridge was on stage with the head of the FBI leaders from the Department of Health and Human Services, the postmaster general, and several other people who were all responding to the anthrax attack. Ok, I promise this is related, but when I trained to be a wilderness EMT,

Nick Capodice: [00:17:33] You were a wilderness EMT.

Christina Phillips: [00:17:35] Yes, I was. It was mostly for my own safety, especially when I went on hikes. I'm very accident prone. But anyway, one thing you learn in search and rescue situations where you actually need to go out and find someone and provide medical attention in the wilderness like an injured hiker is that there needs to be an obvious hierarchy and there are people who understand what their role is. The person carrying the water, the person following the map, the person monitoring the patient, everyone there knows what they're doing and what everyone else is doing. And you've all agreed ahead of time on how it will work. And there's one person who's in charge of the whole thing, which is ideally how things could have worked with Tom Ridge in this new Office of Homeland Security.

Nick Capodice: [00:18:13] The difference here between the government and a hiker is that this is a federal emergency, but the government is still running at the same time.

Christina Phillips: [00:18:21] Yeah, and they're not used to responding to attacks like these in a coordinated way. They're writing the manual as they go and the guy in charge of making sure everything comes together. Tom Ridge is the newest person on the team.

Nick Capodice: [00:18:33] It sounds like a recipe for utter chaos.

Christina Phillips: [00:18:36] Yeah, that press conference showed that.

Tom Ridge: [00:18:37] If we think we've overlooked something, I make the call.

Nick Capodice: [00:18:45] So how do we get from an Office of Homeland Security to the creation of this massive department?

Christina Phillips: [00:18:51] It was later clear to many people that this solution an Office of Homeland Security with Tom Ridge as the director, wasn't enough. Agencies involved in national security were spread across departments with separate missions, and coordination wasn't happening as well as it needed to. In the months after the attacks on September 11th, as the government had to grapple with the major holes in national security, as the public had united around President Bush and was seeking protection, Bush announced the plan to establish a new cabinet Department of Homeland Security.

Christina Phillips: [00:19:24] I've been thinking of it like a bucket, the Homeland Security bucket, if you will. There would be twenty two agencies from other department buckets and they were going to be new agencies put in there. But that bucket didn't have everything.

Nick Capodice: [00:19:38] So Homeland Security wasn't this catch all. There's still work happening in other agencies that had to do with national security that weren't in the department.

Christina Phillips: [00:19:45] One of the major things that was not put in the Homeland Security bucket was the intelligence community, the Justice Department, FBI, CIA. So President Bush had to distinguish how the Department of Homeland Security would fit in with those other agencies.

Eileen Sullivan: [00:20:00] Dhs is primarily a law enforcement agency. It is enforcing the laws that the administration argues for in the Congress passes. And so they're not necessarily coming up with the laws. They're just but they are. They are enforcing them.

Christina Phillips: [00:20:16] This is Eileen Sullivan. She's the New York Times correspondent for the Department of Homeland Security.

President Bush: [00:20:21] Tonight, I propose a permanent cabinet level Department of Homeland Security to unite essential agencies that must work more closely together. Among them the Coast Guard, the Border Patrol, the Customs Service, immigration officials, the Transportation Security Administration and the Federal Emergency Management Agency. Employees of this new agency will come to work every morning knowing their most important job is to protect their fellow citizens.

Nick Capodice: [00:20:50] So have we reached the moment when you can explain what this whole new department looks like?

Christina Phillips: [00:20:54] Yes, it is time to pull out the giant whiteboard where I mapped out which agencies were absorbed into Homeland Security and how they fit into the purpose of the department, which President Bush very helpfully broke down into four different missions.

Nick Capodice: [00:21:08] By the way, we'll make sure to include a photo of this beast of a whiteboard on our website so you can follow along if you want at civics101podcast.org. Let's go through them one at a time. Tell me about mission number one.

Christina Phillips: [00:21:19] Mission number one is border control.

President Bush: [00:21:22] This new agency will control our borders and prevent terrorists and explosives from entering our country.

Christina Phillips: [00:21:28] Remember how I said there were four missions? Yeah, well, this first mission also has four different agencies in it focused on protection, enforcement and security at the border.

Nick Capodice: [00:21:36] So I see here the first one is U.S. Customs and Border Protection. Is that a new agency?

Christina Phillips: [00:21:42] Yes. So it's a new agency that absorbed customs and immigration agencies from the Treasury and Justice Department, as well as plant and animal inspection from the Department of Agriculture.

Nick Capodice: [00:21:51] So basically, like everything that comes across the border.

Christina Phillips: [00:21:54] Yeah, everything.

Christina Phillips: [00:21:55] The second agency is U.S. Immigration and Customs Enforcement, which is also known as ICE, and this is also a new agency. It's created specifically to protect the U.S. from cross-border crime and illegal immigration.

Nick Capodice: [00:22:07] Number three is another new agency under this border control mission the Transportation Security Administration. The TSA, which, as we already mentioned, did not exist before nine eleven.

Christina Phillips: [00:22:18] Yeah, this is the new law enforcement arm that puts airport security directly in the hands of the government.

Nick Capodice: [00:22:23] And the final part of the first mission of border control is the U.S. Coast Guard, which I always thought was part of the military.

Christina Phillips: [00:22:30] Yeah, it depends. The Coast Guard is technically overseen by the Department of Homeland Security and Peace, Peacetime and the Navy in wartime. Ok. It's not a simple system, especially considering that we've spent the majority of the 20 years since 9/11 at war.

Nick Capodice: [00:22:44] Ok, that's mission one. What's Mission two?

Christina Phillips: [00:22:46] Emergencies.

President Bush: [00:22:47] It will work with state and local authorities to respond quickly and effectively to emergencies.

Christina Phillips: [00:22:53] This is the Federal Emergency Management Administration, or FEMA, which was designed to coordinate disaster response between local and federal agencies. And it did exist before 9/11. But under the new reorganization, there was an additional focus on coordinating the response to terrorism related disasters.

Eileen Sullivan: [00:23:13] One of the original concepts of Homeland Security was that it would be the one to talk to state and local officials about about threats and about what they need to know. And so instead of getting multiple reports from different federal agencies, it should all be one.

Christina Phillips: [00:23:30] Homeland Security absorbed FEMA and FEMA absorbed the nuclear incident response team from the Department of Energy, the domestic emergency support team from the Department of Justice and the Center for Domestic Preparedness from the Justice Department and the FBI.

Nick Capodice: [00:23:43] Wow. So Mission Two: Emergency response. What about Mission Three?

Christina Phillips: [00:23:49] I'm not sure I can actually summarize this one into a couple of words. Let's just listen to President Bush.

President Bush: [00:23:54] It will bring together our best scientists to develop technologies that detect biological, chemical and nuclear weapons and to discover the drugs and treatments to best protect our citizens.

Nick Capodice: [00:24:05] I'm going to bite my tongue about the nuclear thing. Tell me, what is Bush saying here?

Christina Phillips: [00:24:10] From what I can tell, this is the research and development arm of Homeland Security, but it's basically six different things. What's it called?

Christina Phillips: [00:24:17] The Science and Technology Directorate Directorate.

Nick Capodice: [00:24:20] Can you give me some examples of what a directorate actually looks like?

Christina Phillips: [00:24:25] So one thing the directorate has done is develop technology that helps first responders communicate effectively in emergencies. The directorate also works a lot with private companies that are developing the technology. The government may want to use things like security technology for screening people and goods or threat forecasting.

Nick Capodice: [00:24:42] Ok. Mission Three: Science and Technology Directorate. What's mission four?

Christina Phillips: [00:24:46] Information analysis and infrastructure protection.

President Bush: [00:24:50] And this new department will review intelligence and law enforcement information from all agencies of government and produce a single daily picture of threats against our homeland. Analysts will be responsible for imagining the worst and planning to counter it.

Nick Capodice: [00:25:05] So cybersecurity and data gathering. But I also see the Federal Protective Service, which I don't know anything about, and the U.S. Secret Service, which I do, are also in this umbrella.

Christina Phillips: [00:25:15] Yeah, I had to look this up to the Federal Protective Service is the law enforcement that protects federal properties around the U.S. like federal courthouses and post offices.

Nick Capodice: [00:25:23] And the Secret Service, which was initially created to combat counterfeiting, provide security for the president, vice president, White House. But they still do investigate crimes against the U.S. financial system. With the reorganization, this massive Cristina, I assume it's not as simple as telling all these people, OK, you used to work for this department and now you're being moved to another department and your new mission is to protect the American people and prevent terrorists from killing Americans.

Christina Phillips: [00:25:52] One of the biggest hurdles for the department was Congress, specifically congressional oversight. See, in our system of checks and balances, one check on the power of the executive department is congressional committees. They monitor the work being done in the executive branch, and that work didn't stop when agencies were moved into a new department. Here's Eileen Sullivan, the Homeland Security correspondent for the New York Times.

Eileen Sullivan: [00:26:15] So while the agencies were pulled from their parent departments and formed DHS, the Congress didn't really give anything up.

Christina Phillips: [00:26:26] At the start, all the committees that were overseeing those individual agencies continued to oversee them under Homeland Security. It was over a hundred different committees by some count, 123.

Nick Capodice: [00:26:36] How does that number compare to other departments?

Christina Phillips: [00:26:39] Well, the Department of Defense, which is the largest cabinet department, is overseen by 30 committees. At one point, Secretary Chertoff, who was appointed in 2005, said that the department had written over 5000 briefings and attended over 300 hearings for Congress in a single year,

Nick Capodice: [00:26:55] And has that number changed since.

Christina Phillips: [00:26:57] Over the years, the number of committees have been winnowed down to around 90.

Nick Capodice: [00:27:01] So not much change at all,

Eileen Sullivan: [00:27:02] Which just shows you how difficult it is to take away turf anywhere, ever.

Christina Phillips: [00:27:08] And that kind of turf battle was bad, even when the focus of the department was still pretty narrow.

David Schanzer: [00:27:13] Well, first of all, there was really an almost exclusive laser like focus on the threat from Al Qaida and other like minded groups.

Christina Phillips: [00:27:22] That's David Schanzer, who was working in Congress on Homeland Security in the early years of the department.

David Schanzer: [00:27:27] Another nine 11 style attack where people or weaponry or explosives or weapons of mass destruction could be smuggled into into the U.S. and deployed.

Nick Capodice: [00:27:39] So what happens when time goes on and the focus isn't so laser like? What changed over the next 20 years?

Eileen Sullivan: [00:27:47] Current events have kind of defined each chapter of the department.

Christina Phillips: [00:27:51] As the department has encountered new challenges and new leadership. Its mission has evolved. There have been some major failures, like in 2005, when Hurricane Katrina struck the Gulf Coast and in each successive administration after Bush, the commander in chief, appointed heads of the department that fulfilled their agendas. You can see over time how the department's power has been applied in new ways, determined by what the government and its leader consider the biggest threats to our country. For example, President Obama made border security and cybersecurity. His major focuses during his presidency. He about doubled the number of Border Patrol agents and unmanned aerial vehicles, also known as drones, that surveyed the border.

Nick Capodice: [00:28:32] And then what happened under President Trump?

Christina Phillips: [00:28:33] He wanted to limit who was allowed to enter the United States legally or not. This included his highly controversial executive actions that restricted travel to the U.S. for citizens from several majority Muslim countries.

Archival Audio: [00:28:45] Protesters gathered outside JFK International Airport in New York and demanded the release of refugees blocked from entering the United States.

Christina Phillips: [00:28:53] And under President Trump, the federal government also enforced a family separation policy at the U.S.- Mexico border.

Archival Audio: [00:28:59] Border Patrol officials said today that since April, more than 2300 children have been separated from their families, with some held in makeshift tent cities.

Nick Capodice: [00:29:08] And what's most interesting to me is that the Department of Homeland Security was specifically created to help prevent something like 9/11 from ever happening again. But with each successive administration, it's become much more than that.

Christina Phillips: [00:29:24] This is a story of what happens when the way our government does things is held up to a microscope in a moment of violence and pain. Pair that with a public united by fear, anger and patriotism, and the outcome is a massive reorganization under a short timeline where the government is trying to protect the nation as its writing its own manual on what that actually means.

Christina Phillips: [00:29:49] The Department of Homeland Security has given us a name for our feeling of safety and security the homeland and has drawn lines around the borders of safe and dangerous. And in the 20 years since, given our leaders the tools to enforce them, from cybersecurity to law enforcement at the border, to screenings at the airport.

Christina Phillips: [00:30:17] So that's it for the Department of Homeland Security. This episode was written and produced by me, Christina Phillips, with help from You Nick Capodice and Hannah McCarthy.

Nick Capodice: [00:30:25] Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer.

Christina Phillips: [00:30:28] Music In this episode by Audiobringer, Broke for Free, KiloKaz, Martin Skeleton's Blue Dot Sessions, Makiah, UNCan, Chris Zabriskie, Jason Leonard and Yung Kartz

Nick Capodice: [00:30:40] Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Government Shutdown

Congress agrees on a budget and the President signs it. Or… not. This is what happens when we don’t have a full and final budget or a continuing resolution. This is what happens when the government shuts down and how our idea of a shutdown has changed over time. Our guest this time around is Charles Tiefer, Professor of Law at Baltimore School of Law.


: Audio automatically transcribed by Sonix

: this mp3 audio file was automatically transcribed by Sonix with the This transcript may contain errors.

Hannah McCarthy:
Nick?

Nick Capodice:
Yeah.

Hannah McCarthy:
I think that I have done a pretty good job of not referencing the West Wing on this show. I think I've shown a lot of restraint.

Nick Capodice:
I think that's fair.

Hannah McCarthy:
For someone who works on a show that's largely about government and still cries about a quarter of the time when I watch the West Wing. I will admit I occasionally bring up the Bartlet for America napkin, but that's it, right?

Nick Capodice:
You do bring that up, but in your defense, it's a pretty cinematic moment.

Hannah McCarthy:
It is.

Hannah McCarthy:
But today I'm I'm doing it. I'm breaking. I'm going to reference the West Wing quite a bit. Also, by the way, for anyone who has never heard of or never seen the West Wing, it is a TV show from the 90s and the early aughts about a fictional president, Jeb Bartlet, and his administration, and it has been roundly praised for being relatively true to the actual goings on of the West Wing. If pretty idealistic and sentimental, which is why I cry all the time. And the government of Myanmar reportedly used the West Wing to study how democracy works,

Nick Capodice:
Although I do know that Gerald Ford's daughter couldn't watch it, apparently because they got the layout wrong and the frequent walking talks they turn left when it's actually a right turn and they turn right when it's actually a left turn.

Hannah McCarthy:
Whatever. Nevertheless, I recently rewatched a certain episode and nick my how the world has changed.

West Wing, Season 5, Episode 8: Shutdown:
And I said No. Let's be clear, sir. You will be held responsible for shutting down the federal government, then shut it down.

Nick Capodice:
Oh, it's so dramatic.

Hannah McCarthy:
It is so dramatic. But Nick? Government shutdowns actually used to mean something. The name of that episode, by the way, for anyone who's looking for it, is just shut down. I mean, can you even imagine at this stage a United States in which a shutdown warrants this kind of music?

Nick Capodice:
I feel like nowadays the announcement of a government shutdown would elicit nothing more than like a trombone going wah-wah-wahhhh.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

And this is Civics 101, and today we are talking about the grind to a halt disaster that has taken on new meaning in recent years. The government shutdown.

Archival:
Top Democrats Nancy Pelosi and Chuck Schumer tonight. The possible shutdown less of a concern now than to the lawmakers racing to prevent a government shutdown.

Archival:
Both chambers, so we told the president we needed the government open. He resisted. In fact, he said he'd keep the government closed.

Archival:
A new poll shows more Americans blame the president and his party for this historic.

Archival:
Fortunately, Congress has not fulfilled its responsibility. It's failed to pass a budget, and as a result, much of our government must now shut down until Congress funds it again.

Nick Capodice:
I feel like government shutdowns are pretty commonplace nowadays, but I do want to point out, I don't remember hearing about them when I was a kid.

Hannah McCarthy:
OK.

Hannah McCarthy:
Yes, the thing is the government shutdowns were certainly happening as you were growing up. The public just was not paying as much attention to them.

Nick Capodice:
Why wouldn't you pay attention to the government itself shutting down?

Hannah McCarthy:
Well before we talk about what a government shutdown used to be? Let's quickly establish what it actually is.

Charles Tiefer:
A shutdown is like a disease in the budgetary process.

Hannah McCarthy:
This is Charles Tiefer, a law professor at the University of Baltimore. He spoke with the original host of Civics 101 Virginia Prescott back in 2017.

Nick Capodice:
Right. So before we stumbled into our longest shutdown ever,

Hannah McCarthy:
Correct just before the twenty eighteen shutdown. This is when we were on the verge of it and everyone was like, what does a shutdown mean again?

Charles Tiefer:
Annual spending bills are supposed to regularly follow one after the other. So as one expires, the one for the spending for the next year takes over. But if you have a giant glitch in the spending process, the one for a prior fiscal year expires and there's no new one in place. And that means the government finds it has an empty wallet without any money in it they can spend.

Nick Capodice:
In other words, a government shutdown is when the government fails to fund itself

Hannah McCarthy:
And to understand government shutdowns. Today, it helps to know where this relatively recent phenomenon came from.

Nick Capodice:
We haven't always had them.

Hannah McCarthy:
No, our government did not have its first shutdown until nineteen seventy six.

Nick Capodice:
So for the first two hundred years of our government's existence, we didn't have a single shutdown.

Hannah McCarthy:
Correct.

Hannah McCarthy:
So what on earth went wrong?

Hannah McCarthy:
All right. Before the mid 70s, the president had way more control over the budgeting process than Richard Nixon came along and took it to the next level. He refused to spend congressionally appropriated funds.

Archival:
The time has come for a new economic policy for the United States. Its targets are unemployment, inflation and international speculation. And this is how we are going to attack those targets.

Hannah McCarthy:
Congress got mad and passed the Congressional Budget and Impoundment Control Act of 1974 to gain more control, as is in the name. Nineteen seventy six came along and President Gerald Ford vetoed an appropriations bill because he felt trapped by a Democratic Congress. He wanted more control and the government shut down for 10 days.

Nick Capodice:
Did everyone freak out?

Hannah McCarthy:
Not really. Everyone assumed Congress would just figure it out, and they did. Also because we'd never had a shutdown before the government just went on spending money that it hadn't appropriated. The attorney general later decided during the Reagan administration that spending money you didn't have was illegal.

Nick Capodice:
All right. But I grew up in the Reagan administration, and I still don't remember shutdowns.

Hannah McCarthy:
Reagan had eight government shutdowns during his administration.

Nick Capodice:
Eight shutdowns.

Hannah McCarthy:
Yeah, the most of any president ever.

Nick Capodice:
Wait, we hear about Reagan's legacy all the time. Why doesn't anybody mention that he had eight shutdowns?

Hannah McCarthy:
All right. So here is the big shift that changed government shutdowns forever. Before the 1990s, government shutdowns were typically about line item quibbles. Disputes over very specific funding decisions. For example, we shut down under Carter for a full 18 days when he vetoed an appropriations bill that funded an expensive nuclear powered aircraft carrier.

President Carter:
We are going to hold down government spending, reduce the budget deficit and eliminate government waste.

Nick Capodice:
So what changed in the nineties?

Charles Tiefer:
Oh, that was a titanic clash. In 1995, a new Republican House Republican Senate had been elected in the 1994 election. So you had the first Republican Congress in ages and ages and ages had been decades since there had been a Republican House. This was led by Speaker Newt Gingrich, and he thought that this would batter down the doors of the White House and that he would make them sign bills about key spending programs, including perhaps cuts in entitlements like Medicare Medicaid.

Newt Gingrich:
He talked about letting Medicare wither on the vine. The fact is, there is a forty five percent increase in general Medicare spending that is twice the inflation rate over the next seven years.

Nick Capodice:
Ok, I do remember it being a huge deal that Republicans had control of Congress for the first time in like 40 years,

Charles Tiefer:
And President Clinton, who had lost the Congress in the 1994 election, had been elected with a strong Democratic Congress in the 1992 election and then lost it in the midterm election. He had lay low for a while. He hadn't been fighting. He hadn't been standing up visibly against the Republican Congress, but he stood up on the shutdown and said, You want to shut me down, go ahead and shut me down. I'm here to protect Medicare, Medicaid, the environment and Social Security. And he drew the line in the sand, and that was what the government closed down on that clash at the top level.

Nick Capodice:
This sounds familiar.

Hannah McCarthy:
Doesn't it, though.

West Wing, Season 5, Episode 8: Shutdown:
You will be held responsible for shutting down the federal government, then shut it down.

Hannah McCarthy:
Ok, so this major shutdown happens in the nineties and it lasts 21 days. And this is a big deal, and I don't know why you don't remember it, probably because you were a teenager and had other things on your mind. But the point is the government shuts down for a long time, and this time it is about something big. It's not some small line item, it's about political ideologies of a president

Nick Capodice:
Just like Jeb Bartlet.

Hannah McCarthy:
Just like Jeb Bartlet.

West Wing, Season 5, Episode 8: Shutdown:
We still haven't cut enough spending. I agree. I want you to cut agriculture subsidies and you want me to cut Medicaid again. You know, I'll veto any Medicaid cuts, and I know you won't give me any agriculture cuts. So here we are.

Hannah McCarthy:
And by the way, Republicans in the 90s made a bet that the public would back them in this fight, and they were wrong. It divided and hurt the Republican Party, and everyone was so wounded by this moment that for the next 17 years, we avoided another shutdown.

Nick Capodice:
What year did that episode of the West Wing come out?

Hannah McCarthy:
As two thousand and three.

Nick Capodice:
Ok. So when that episode came out, government shutdown had become a different, scarier political beast and a really big deal that we all worked hard to avoid.

Hannah McCarthy:
Yeah, even when we had budget issues which happen all the time, Congress was able to prevent shutdown by passing what's called a continuing resolution. Here's Charles Tiefer again.

Charles Tiefer:
When you have a gap, it's possible for Congress to say we don't have our act together to pass another full length appropriation bill that would be 100 pages or much more, depending on which one it is. We don't have our act to do that, but we could pass a one paragraph statement that you just continue spending for the next 30, 60 or 90 days at the rate from last year. And that's it's like a bandage over the sore and it works. During that period, the government has a wallet. There are many complaints about that situation, but it is not a shutdown,

Nick Capodice:
Which is something that President Biden signed to avoid the first government shutdown threat of his administration. But our longest shutdown, Hannah. Thirty five days under President Trump. That seemed to confirm this new normal, that government shutdowns will be the inevitable result of partisan battles between Congress and the president. And they don't seem to have any lasting political consequences. So what happened?

Hannah McCarthy:
Well, we saw our first government shutdown since Clinton during the Obama administration with this big fight over the Affordable Care Act.

Barack Obama:
About three weeks ago, as the federal government shut down the Affordable Care Act's health insurance marketplaces open for business across the

Nick Capodice:
Country. Another example of a party not getting what they wanted and gambling on a shutdown.

Hannah McCarthy:
And also, I think another example of partisanship of a Congress that does not want to compromise because before the 90s, remember, shutdowns were typically short and represented the time that it took to make a compromise on usually something smaller. And that's just not really the case anymore. So Obama had just the one shutdown, but then Trump had three, although one of them only lasted for nine hours. And now, you know, so for me, when someone at the FDA tells me, as they recently did, that they might not be able to do an interview in a week because the government might be shut down, I'm like, Yup, that sounds about right.

Nick Capodice:
All right. So government shutdown has gone from this sort of temporary hiccup, barring negotiation to a commonplace political tactic,

Hannah McCarthy:
At least in our current political climate. And for us laypeople, US and nongovernment employees who can kind of shrug it a shutdown because it isn't reflected in our paychecks. I feel like we should emphasize that he shutdown does matter to everyone. It does affect your life and we're going to find out how after the break.

Nick Capodice:
I just want to invite any listeners out there who might be interested in trivia and ephemera and deeper dives into our episode topics to subscribe to our newsletter, it's called Extra Credit. It's every two weeks, it's a goof. Next week, I'm going to have some Civics 101 trivia that we asked on air and a photo of our executive producers most hideous new pair of leggings. You can subscribe at civics101podcast.org. All right, let's get back to it. What actually happens when the government shuts down?

Hannah McCarthy:
Great question. Here's Charles Tiefer.

Charles Tiefer:
The government has various guides, legal opinions of the past, practices of the past guidelines and so forth to follow, which say some activities can continue to be funded. Sort of on an emergency basis so that the armed forces aren't left without the ability to to get ammunition. Things that must continue on an emergency basis are able to. But the government splits apart and quite a lot of its activity isn't. Emergency is just a continuing need of the public and that it can't spend on during a shutdown.

Hannah McCarthy:
And for many of us, the problem does start and end at inconvenience.

Charles Tiefer:
Among the examples so most of the IRS shuts down if you have a question and you need to get an answer, you can't get an answer. You can't call up. No one will answer the phone.

Hannah McCarthy:
Now what shuts down during a shutdown all depends on what has or has not been funded at that point. But you're usually going to see the parks services close up shop, meaning bye bye to your trip to Yellowstone. The same goes for Smithsonian museums and the National Zoo. Immigration courts typically close as if the backlog wasn't bad enough. Most of the Department of Agriculture, which monitors farming and forest regulation, shuts down. Nasa even has to power down some of its large scale instruments.

Nick Capodice:
Yeah, I didn't know that. What about stuff like regulation like food and drug inspection? Does that continue?

Charles Tiefer:
Food inspections are considered an emergency service, and they do continue

Hannah McCarthy:
And things like entitlements, meaning Medicare and Social Security, those don't need annual spending bills, so those keep churning. But there are examples of people being disastrously affected by a government shutdown.

Charles Tiefer:
I can tell you what one of the most horrible examples of what happens during a shutdown in the Health and Human Services. They have what they call trials, tryouts, tests for new drugs, new treatments and new people cannot be enrolled in a clinical trial. New patients, desperate new patients cannot be enrolled in clinical trials during a shutdown period. And so you would see saw the last time that there was a shutdown. These frantic parents saying I can't get my son or daughter into a trial. They've got one of these rare types of childhood cancers that there's no good regular treatment for. I can't imagine what insanity is going on, that they're not letting my child get enrolled.

Hannah McCarthy:
And just to be clear, in terms of who is affected by something like that, as of October, twenty twenty one. There were over a hundred thousand clinical trials registered in the United States alone. Halting that much work can have devastating consequences.

Nick Capodice:
So if Health and human services were to shut down during a pandemic, what would happen to all the research, the response and vaccine development?

Hannah McCarthy:
Well, fortunately, that's considered an emergency service. And for example, HHS created a full. What we're going to do with COVID 19 if the government shuts down plan. But keep in mind these emergency workers, these people who still show up and do the job, they are technically working without pay.

Charles Tiefer:
There is no money for them. It used to be the custom that when the shutdown was over, they would pay people retroactively. But there have been threats during recent pre shutdown periods. By some, you might call some anti-government or small government people who who say, Let's we don't want to pay the civil service, let's not pay them. At the end of the day, let's not pay retroactively at the end of the shutdown.

Nick Capodice:
So who gets to make the call in terms of what actually is an emergency service or not?

Charles Tiefer:
Well, that has gotten more organized. Few decades ago, it was pretty random. A supervisor that low levels would make the decisions. But now there's supervision on high from the White House. They keep a pretty elaborate tab to make sure there's some uniformity in what's shut down and what's not shut down so that the different cabinet departments have some kind of similar read.

Hannah McCarthy:
No matter how well a shut down is organized, it is still a shutdown. There is a civic impact. A shutdown affects how we think of our government. The public does not like it.

Charles Tiefer:
Well they all think it shows gridlock in Washington and that Washington is dysfunctional. That's something pretty common that you you see during shutdowns. And they consider it the extreme example that the government can't get its act together. The public doesn't like disorderly things like shutdown, essentially.

Nick Capodice:
Even if it is commonplace, it's the kind of thing we roll our eyes at. But expect shutdowns do endanger faith in our government, which I feel is bad for all of us in the long run.

Hannah McCarthy:
And Nick, just to bring this walk and talk full circle. This is exactly the point that that West Wing episode is trying to make that shut down is trying to make the government shuts down because there was a compromise to keep everything going and then that compromise is retracted. And Jeb Bartlett is like, do your job.

West Wing, Season 5, Episode 8: Shutdown:
We had a deal. I don't care if my approval ratings drop into single digits. I am the president of the United States, and I will leave this government shutdown until we reach an equitable agreement.

Hannah McCarthy:
This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. If you want more civics, headphones free, you can check out our book on it. It's called A User's Guide to Democracy: How America Works, and it's a quick, fun guide to these United States. You can find that wherever books are sold. Music in this episode by Xylo-Zico, Wildlight Metre, Daniel Burch and Cycle Hiccups. There is always more to be found, including our many other episodes a submission form to ask us for an episode you want and loads more at civics101podcast.org. And while you're there a reminder that while civics is free to you, it is not free to make. We exist because of your generous contributions to our show. If you're so inclined, you can click the donate button on your way to your favorite civics episode. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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This podcast is a production of New Hampshire Public Radio.

State Attorneys General

We often hear them referred to as the “top cop” of a state. The attorneys general are the chief legal advisors and law enforcement officers, the ones in charge of statewide investigations and asserting state sovereignty. They sue presidential administrations and big businesses, give press conferences and advise the legislature. But what is the daily business of a state attorney general? How does the “People’s Lawyer” actually work for the people?

Our guests are former New Hampshire Attorney General Michael Delaney and New Hampshire policy experts Jackie Benson and Anna Brown.

Click here for a Graphic Organizer for students to fill out while listening to the episode


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

After 9/11: The FBI

This is the story of where the FBI was on September 11th, 2001. This is what they did — and did not — have when it came to counterterrorism and how the tragedy of that Tuesday morning transformed the Bureau. Our guide is Sasha O’Connell, the director of the Terrorism and Homeland Security Program at American University who spent the bulk of her career working for the FBI.

 

Episode Segments


AFTER 9/11: FBI

This mp3 audio file was automatically transcribed by Sonix. This transcript may contain errors.

Hannah McCarthy:
Hey, there a quick favor. We are conducting an audience survey, and we would be really grateful if you could take just a few minutes to answer it. Please visit Survey.PRX.Org/Civics101 to take the survey today. That survey.prx.org/Civics101. Thanks.

Hannah McCarthy:
September 11 2021 marks the 20th anniversary of a tragedy that forever and profoundly changed the United States of America. Some of you who live in the United States and are listening right now witnessed and experienced those changes. Some of you have never lived in a world without them. Over the course of this year, Civics 101 is going to be exploring and interrogating those changes. How did our government, our civil liberties, our security and society pivot following the attacks of that Tuesday morning?

Nick Capodice:
This will be an ongoing series that you'll hear intermittently throughout the year. After all, the government and societal effects of 9/11 are not isolated to one date or one anniversary. They've been happening for 20 years and will continue to do so. So every once in a while, you'll encounter an episode from this series in your feed. And we also want to hear from you as we work through it. How has your relationship to the U.S. government and its leaders changed, if at all, in the 20 years since 9/11? Send a voice memo to Civics101@Nhpr.org. We hope to use it in these episodes.

Sasha O'Connell:
And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room, so the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind of crazy. And it was just pouring off the fax machine and the banks were sending us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice,

Hannah McCarthy:
And that is the voice of Sasha O'Connell, a woman who spent most of her career in various roles at the FBI because we're starting this Civics 101 series with a look inside the world of the people on the inside. The Federal Bureau of Investigation is an organization so synonymous with government its agents have long been referred to as quote G-men.

Nick Capodice:
I never knew that the G in G-men stands for government men?

Hannah McCarthy:
Yeah, government men.

Nick Capodice:
Totally new to me.

Hannah McCarthy:
For those who don't know, the FBI is also now synonymous with counter terrorism. That is the bureau's explicitly stated number one priority, one of its best resourced missions. But it wasn't always that way at the FBI. So this is the story of how it happened, how four planes hijacked by the terrorist group Al Qaeda, three United States targets and nearly 3000 deaths -- the tragedy of September 11th, 2001 -- changed the FBI.

Sasha O'Connell:
I actually joined right into the counterterrorism program what was then the International Terrorism Operations section? I joined in '98.

Hannah McCarthy:
Right now, Sasha is the director of the Terrorism and Homeland Security Policy Program at American University. But in September of 2001, she was working for the FBI.

Nick Capodice:
Before we go any further, Hannah, can you tell me what is the FBI? What do they do?

Hannah McCarthy:
The FBI investigates federal crimes. Now, the bureau itself lists those crimes in order of priority. We talked about priorities, right? And domestic and international terrorism is number one. There's also international counterintelligence.

Nick Capodice:
Is that meaning like spies?

Hannah McCarthy:
Yeah, meaning spies. The FBI is supposed to prevent international spies from doing their job in international cyber attacks from happening. And cybercrime, by the way, is on that list of priorities, as is combating public corruption, white collar and violent crime and protecting civil liberties. They also handle stuff like organized and drug related crime and health care fraud. And then the FBI works with the attorney general of the United States to get those crimes prosecuted.

Nick Capodice:
You said that the FBI's job is in part, protecting civil liberties.

Hannah McCarthy:
Yeah, they're supposed to be upholding the Constitution in their daily dealings.

Nick Capodice:
Ok, so the elephant in the room, if we're talking about the FBI and September 11th, it's the degree to which those civil liberties were or were not upheld after the attacks.

Hannah McCarthy:
This is a very important point. I'm glad you brought this up. We will absolutely be addressing the rise of surveillance and how the U.S. government impinged on privacy, among other rights, following September 11th, 2001. That will come in other Civics 101 episodes, for example, about acts of Congress that resulted in some fairly carte blanche interpretations of surveillance powers. But today, for the purposes of this episode, we are looking at where the FBI was on counterterrorism pre-9/11 and how those attacks changed it.

Nick Capodice:
Ok, fair enough. Got it. So back to the place of the FBI in the federal government. It's part of the DOJ, the Department of Justice, right?

Hannah McCarthy:
Yeah, that's the close work with the attorney general, right? That's who they work with to prosecute these crimes.

Nick Capodice:
Ok, so that makes it an executive branch department, which is run in the end by the president.

Hannah McCarthy:
And it is through the Presidential Management Fellows program, which is designed to place grad students in federal jobs. That Sasha O'Connell, our guest today, ended up at the FBI in the International Terrorism Operations section

Sasha O'Connell:
In the years before September 11th, there was a real strong initiative underway at the FBI. Not only was the FBI working terrorism cases with partners, but also there was a restructuring in order to focus on terrorism and a whole strategic planning process called Max Cap 05. That was ongoing, and I had the extraordinary opportunity, as one does as a young person in government to get to staff the working group that was sorting through, leading, building, assessing the program and building that strategic plan. So I was knee deep in that kind of strategic view of the terrorism program at the FBI on the lead up to 9/11.

Nick Capodice:
So if the FBI was working on this strategic plan to deal with international terrorism, how does something as big as all the attacks on September 11th get through?

Hannah McCarthy:
That is the sort of perennial question of 9-11, not just when it comes to the FBI, but when it comes to all levels of government. There was a lot of scrutiny of the FBI following. This tragedy, because the question was, how could this have happened? And can the FBI really have been paying close attention to international terrorism if this did happen?

Sasha O'Connell:
It couldn't be possible that the bureau was both focused and this happened, right? That couldn't be possible in people's minds. And in fact, it's much more nuanced than that. And that is possible, right? There was a contingent of the government that was extraordinarily focused on al Qaeda, including this program at the FBI before 9/11. But that's not enough, right? And one of the big lessons in my mind of 9/11 is, you know, having a small group looking around the corner, having a small group, you know, focused on a threat is is not enough.

Nick Capodice:
While we're on the subject of how this all happened. I actually remember reading the 9/11 Commission Report, which is something that Congress and President George Bush requested after 9/11 to figure out what went wrong. It is tremendously well written. I remember that one of the major findings of the report was the FBI and other government agencies were not sharing information, and that likely contributed to the success of these attacks on September 11th.

Sasha O'Connell:
We obviously had the 9/11 commission, which is an amazing if people haven't read it and you're really interested in what happened and where the gaps were. I mean, they do an incredible job. They did an incredible investigation, and the report is an incredible resource to understand what was happening.

Hannah McCarthy:
This report takes a look at a 1998 FBI plan to combat terrorism and says, and this is the actual wording here, "The plan did not succeed." The report determines that the FBI was under-resourced. There were twice as many agents at the time, working drug enforcement as there were working counterterrorism. The training was insufficient. The information systems were lacking. They didn't have enough translators in key languages. The unit that Sasha was working on in 2001, Max Cap 05, was designed to increase FBI counterterrorism capability to maximum capacity feasible by 2005. In September of 2001, almost every FBI field office was considered to be operating below maximum capacity.

Sasha O'Connell:
It was a Tuesday morning and it was bright and sunny, and yes, it was September 11th and I got married on November 17th in Boston, so we were knee-deep in wedding planning and I had a dress fitting on the South Shore that afternoon, so I was supposed to leave work early. I remember what I was wearing and so I was pretty much focused on that that day, right? And not on work. I was in the Boston office, as I mentioned, and I didn't know a lot of people in the Boston office because I was up from headquarters and sort of placed in a pod, you know, a cubicle in the corner doing my work. And I just said hello to a few people over the summer, but I didn't really have relationships. So what happened actually in that morning was an agent who was sitting couple sort of rows away from me in the cubicles, had a little tiny TV in his cubicle at the time. We didn't have what we now have everywhere, right, which is big screen TVs and every every floor of the FBI. And he stood up. I remember and said, something's happening.

News archival:
And I looked up and all of a sudden a plane smashed right there into the center of the World Trade Center.

Nick Capodice:
And Boston was a particularly significant place to be on this day because both planes that hit the Twin Towers came from Logan Airport in Boston.

Sasha O'Connell:
I remember looking out the window once we started to put some of the pieces together because at the time it since changed. The Boston office of the FBI was actually in a private commercial building, but the federal building was right across the street. And I have a very distinct memory of thinking a plane is going to hit the building across the street, right? That's what's going to happen.

Hannah McCarthy:
There's some chaos and uncertainty. But eventually, Sasha remembers hearing from headquarters in Washington, D.C., and basically being told to get to work on this. After all, she is on the counterterrorism team,

Sasha O'Connell:
And I walked up to the executive floor and there was the leadership team was standing in the hallway talking and I said, My name is Sasha. I'm here from the counterterrorism division at headquarters. And they said, Go to the basement, get a car and go to the airport. And I said, I'm not an agent. And they said, Great, get in the command post,

Nick Capodice:
Get in the car, go to the airport. What exactly is supposed to be going on on the FBI agent side of things in a case like this and folks

Sasha O'Connell:
Say, I want to work for the FBI or I want to be an FBI agent, like, what do you think they do right? And the truth is, most of what FBI agents do is talk to people. They interview people. Right. So a lot of what was happening on that day, and this is when they said to me, go to the airport. They thought it was an agent. It's go start talking to people, right? That's how you collect human intelligence is you talk to people, right? So you talk to people at the airport. What happened, how they got on the plane? You talk to the baggage handlers, right? And you come back. And then there's a process that the FBI called setting a lead.

Nick Capodice:
Sasha is talking about gathering intelligence. I always thought intelligence gathering was the purview of the CIA, the Central Intelligence Agency.

Hannah McCarthy:
It absolutely is. Yes, both the CIA and the FBI are part of the intelligence community, although the CIA is prohibited from collecting information regarding quote U.S. persons. Did you know that?

Nick Capodice:
No, I did not.

Hannah McCarthy:
The CIA is also not empowered as a law enforcement agency the same way that the FBI is. But to that point, prior to 9/11, the CIA was the lead against Al Qaeda. And when this attack happens on American soil, the FBI has to prioritize its focus on that terrorist group as well. And these agents cannot leave any stone unturned in these cases, even in the chaos following the attacks. These agents had to figure out where physically to go, what specifically to ask in order to clarify what happened that day.

Sasha O'Connell:
What happened? Where did this bag come from? Who handled it right? They found the car in the parking lot. You've got to talk to the parking lot attendant, right? You're going to find litter in the car, then you're going to go to the hotel where the receipt was in that car. All these things happen on 9/11, right?

Nick Capodice:
When Sasha says they found a car in a parking lot. What are they talking about? Was it a suspect's car? Was it like one of the hijackers car at the airport?

Hannah McCarthy:
Yes. Agents found both the car and the luggage of the individual, later considered to be the ringleader of the 9/11 attacks. And they found these at Logan Airport when they went to the airport. Again, Boston is a central element in the investigation on day one.

Nick Capodice:
What was the luggage they found?

Hannah McCarthy:
Mohamed Atta's luggage. That's the ringleader. Just as an aside, his suitcase was only discovered because it never made it onto the plane in Boston after his connecting flight. Totally incidental. I feel like details like this really illustrate the significance of minutia in an FBI investigation. The suitcase and the car were full of evidence. And, you know, once the agents find this evidence, they have to pass it on. They coordinate. They follow leads and they put the story together. And this is happening not just in Boston or around the country, but around the world.

Sasha O'Connell:
You can literally picture just the world lighting up with people talking to people and. Trying to figure out what's going on. Similarly, using other intelligence methods right to do that, whether that's sort of a digital collection, opportunities, right, but it's information gathering is a huge piece of kind of what's going on. And then there's a lot of capacity back, whether it's in a field office or at headquarters trying to put those pieces together because this whole world is getting laid up and all this information is coming in and a you have to coordinate all those people and be you then have to coordinate all that intelligence, right? Which is just a fancy word for facts and information that are coming in.

Hannah McCarthy:
And the coordination part, that is Sasha on September 11th. She's in the command post and evidence is pouring in.

Sasha O'Connell:
We started getting markers and whiteboards and made sure the fax machine was turned on and someone brought in an extra phone.

Hannah McCarthy:
Sasha mentioned that today FBI field offices have these big, beautiful conference rooms with loads of screens and resources. But on 9/11, she is in a windowless room with just a phone and a fax machine. This is before this anti-terrorism effort was majorly resourced.

Sasha O'Connell:
And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room that were printed out and we could see and there was paper all the way around the room. And by the end of the day, my two biggest memories were one that the fax machine was right behind me. So I was sitting at a conference table and the fax machine was right behind my back. And paper was just pouring off the fax machine because airlines and banks. So the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind of crazy. And it was just pouring off the fax machine and the banks were sending us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Nick Capodice:
What's up at the banks? The airlines thing makes perfect sense, but how are the banks connected

Hannah McCarthy:
At this stage in counterterrorism in this country, U.S. banks were already expected to block any Al Qaeda transactions and seize their funds. But the hijackers of 9/11 made extensive use of U.S. banks. The 9/11 Commission Report concluded that nothing these attackers did would have tipped off the banks, but still after those attacks, anything is potential evidence anyway. Sasha is processing all of this incoming information.

Sasha O'Connell:
My job is to man that phone and talk to headquarters, figure out, you know, understand what they needed from the Boston office. And that's how we work 12 hour shifts for the next oh, about eight weeks. And I did leave sort of duty in the command post shortly before my wedding.

Nick Capodice:
The pressure at this moment must have been incredible, especially for someone who, as you said earlier, was quite young and quite new to the bureau. Did Sasha say what it was like for her during those two months?

Sasha O'Connell:
Day one, it was just it's a blessing and a curse, right? You're so busy you don't have any time to think, and it's wonderful because you're busy and you feel like you're contributing. But I wasn't thinking I was trying to survive and solve problems, right? And find the paper or clean up the fax machine or find George and run down a lead. There was no time to think. We didn't even have a TV in the command post at the time, so it's something I didn't realize. I think I mentioned to you that the first anniversary 9/11, I saw the pictures really for the first time in the video, right? I hadn't seen them. We were too busy just trying to get things sorted out or get agents to the airport, get the evidence back, you know? And again, I'm just trying to keep lists and keep organized.

Nick Capodice:
It's just you would think that someone who is so closely involved with the investigation would be inundated with images and footage and news the way that we in the U.S. were every waking moment.

Hannah McCarthy:
You know, I think it would have been different had Sacha been in a modern command post surrounded by televisions and news analysis. Instead, it was her and a phone and a fax machine. And this constant drive to figure out the who, what, when, where and why of September 11th.

Nick Capodice:
All right. Speaking of the modern command post versus the FBI that Sasha worked for in 2001, can we get into the changes that happened after the September 11th attacks? You had people in the FBI who were pretty clear on the fact that they needed to beef up counterterrorism efforts. So did they?

Hannah McCarthy:
Sasha left the FBI in 2002 to work for the private sector. She came back in 2007, and when she did, the Bureau had reassessed its whole approach to counterterrorism. And the lack of resources that was no longer a problem for the counterterrorism effort.

Sasha O'Connell:
The counterterrorism program is resourced, so all the things we were asking for before 9/11 training translation analysis, right when we did that assessment, there were gaps. We knew there were gaps. We were asking for it in the budget and we weren't getting it from Congress, right? It just wasn't coming. And by the time I got back, like amazing, like we have all those things right that had happened. And then the other interesting thing that had happened and I never worked in the counterterrorism division after, but it was the head of strategy. So I got to work a little bit with all the divisions for a time is that before 9-11, the counterterrorism division operated much like the criminal division in that cases were more decentralized. So a special agent in charge of a field office like in New York, I'm one of the largest field offices. We're really responsible as they are on the criminal side for their cases. And there was sort of programmatic oversight at headquarters. And, you know, obviously the most sensitive cases got briefed to the director or whoever needed for legal review. But fundamentally, there was kind of this decentralized approach to case management during the time that I was white and really since the counterterrorism program swung the other direction. One hundred and eighty degrees cases are really centrally managed out of FBI headquarters.

Hannah McCarthy:
Prior to this, FBI field offices were fairly autonomous operations. And that autonomy ended with 9/11 and this new approach to counterterrorism. A lot of people actually blamed this decentralized element of the FBI for some of the failures that allowed 9/11 to happen. And when Sasha returned to the FBI, de-centralized was a thing of the past.

Nick Capodice:
I heard a lot about Joint Terrorism Task Forces, were these part of the restructuring.

Hannah McCarthy:
Yeah, but Joint Terrorism Task Forces had been around since nineteen eighty. They started in New York City on nine eleven. We had thirty five of them in the U.S. These were locally based investigators and analysts who are in various states and supposed to watch out for terrorist activity in the U.S.. Now, after 9/11, the FBI almost overnight nearly doubled these forces. They had 56 forces in the days after 9/11. We now have 104. The FBI also established a national joint terrorism task force at headquarters in D.C., which coordinates all of these local task forces. Again, this is all part of this big centralization movement. And the bureau also reassessed how it gathered and reported information. Part of the problem leading up to nine eleven was communication and coordination across the bureau itself and with other agencies.

Sasha O'Connell:
There had been a major initiative called SET, which looked at and then realigned the way the FBI did intelligence intake collection and reporting. So it was really about the business process and the prioritization of intelligence collection and shoring up a lot of those gaps, frankly, that existed before 9/11. So that was a huge kind of it's almost like a strategic change management initiative that Director Mueller ran to shore up that intelligence function of the FBI and further professionalize the intelligence workforce to be able to drive that to the next level. So that was huge.

Hannah McCarthy:
And as the FBI is reassessing and reorganizing itself, there is a larger governmental push to think about separating the intelligence gathering and national security mission of the FBI from the criminal investigation and domestic law enforcement mission. But the FBI itself did not want this, and Sasha believes the reason the bureau remained unified is because they had been attempting to do counterterrorism work before 9/11. The will was in place, even if the resourcing was not.

Sasha O'Connell:
Yes, there was a lot again, as you mentioned, kind of push right at the beginning of holding folks accountable. And part of that led to let's split up the FBI. Some of the work that I had been involved in in terms of Max Cap 05 and explaining that there was a vision for kind of pulling this all together and building maximum capacity. I think and I got this was my sort of opinion sort of helped turn those tides, and a lot of work was done by a lot of people who are involved in our partner organizations to say that's not the way to go in the United States, right? You don't want a domestic intelligence agency, right? Focus on U.S. citizens, right? NSA is focused externally. CIA is focused externally. We don't want a domestic intelligence function split off from the FBI. We want our domestic intelligence to the extent it happens to be tied closely to our enforcement, which is all governed by the same set of domestic constitution, laws and everything else, and ultimately the bureau through a lot of work, a lot of people and a lot of folks, for example, on the Hill who got educated and understood this, and the 9-11 commission findings kept the bureau together, and still today the FBI has again that kind of national security, intelligence function and all the traditional criminal responsibilities that we think of with federal law enforcement.

Nick Capodice:
So should we be thinking of the FBI post-9/11 as the ones in charge, the front line of defense?

Sasha O'Connell:
So sort of, yes and no, I would say so. Just to clarify that the FBI is the lead federal agency right for counterterrorism. There's no question about that domestically, right? There's a lot of work going on overseas because a lot of the threats don't start here, right? And so other U.S. government and foreign government partners are doing that work globally. And then in the United States, you know, there's only I think today around 14000 FBI agents right to cover the world. And they they are global. You know, there's 18000 state local law enforcement organizations, right? I think there's like thirty six thousand police officers in New York City. So actually, in any instance, it's going to be state and local law enforcement. That's truly the front line, right? There just aren't the number of FBI agents right to to be out doing the interviewing. We're talking about the kind of human intelligence collection that's required to kind of understand what's happening with these threats.

Hannah McCarthy:
Now, as we know, the change that happened after 9/11 is this laser focus on a priority that was just not being sufficiently resourced before the attacks in two thousand one. But even with that necessary funding and staffing and focus that came out of 9/11, there still aren't enough agents to handle everything like Sasha says. So if you keep thinking of the FBI as this agency that worked to centralize it is the coordinating force among all of these disparate law enforcement agencies working counterterrorism in the U.S..

Sasha O'Connell:
And for the United States, the FBI is kind of the quarterback, maybe, right? You know, at the end of the day, the policy is set by the White House to right when it comes to strategy. When it comes to investigations, though, that's the FBI's calls today. Like in a lot of programs, the counterterrorism program is run in a task force model where you know you can have private sector organizations, you can have foreign partners, you can have all the different USG federal partners, you can have state and local law enforcement. And the FBI coordinates that task force.

Nick Capodice:
And you explicitly said to me earlier that we are not focusing on a shift in surveillance or the intense scrutiny the FBI came under in the wake of these changes after 9/11. But I do have to ask, like, did Sasha talk about that at all? Like that the attacks are not going to just change the structure of the FBI, but the whole idea of security in the United States and not just security like civil liberties, surveillance, nationalism, xenophobia, Islamophobia. Were there any signs to the people on the inside of what was going to come next?

Sasha O'Connell:
I do remember I don't know how long it was after, but after things were more in routine, it was probably at least a month out. I remember sitting in the command post one day, and one of the things that happened in the command post is that we answered the phone when the public called, and I did some of that too, when the headquarters line was quiet. And I remember taking a call where the caller said, You know, I want to report to the FBI because these people are taking pictures of a bridge. And I don't know what language they're speaking, but it's not English. And I was like, Oh boy, we got a problem, right? And things are going to change like this is. And so that was when I started to think, Oh boy, what is happening out there, right? And I was starting to think about backlash and hate crimes. I started to think about security and privacy changing.

Hannah McCarthy:
So many people have only ever known the United States as this place of super heightened security, with a hyper focus on terrorist groups both domestic and international. A place ostensibly under constant threat and an understanding that the government is hyper focused on that threat. And that leaves everyone more vulnerable to government suspicion to surveillance. This is just the way things are in the United States today. But I do think it's important to ask why. I think it's important to scrutinize that the FBI is the executive intelligence and law enforcement agency in the U.S., and its primary, an overwhelming focus is terrorism. And that focus trickles down to the everyday experience of people in this country and around the world. That is what 9/11 did to the FBI.

This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie sees all. If you want a nearly as portable and twice as quiet civics lesson in your back pocket, Nick and I wrote a book on it. It's called A User's Guide to Democracy: How America Works. If you liked this episode of Civics 101, or if you want us to go deeper and do more, consider making a donation to the show at civics101podcast.org. We are supported by You. You are the reason we're able to keep going and do better all the time. And while you're there, you can find our entire backlog of episodes -- we have many -- and submit your own questions about American government. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Transcript

Hannah McCarthy: [00:00:00] Hey, there a quick favor. We are conducting an audience survey, and we would be really grateful if you could take just a few minutes to answer it. Please visit Survey.PRX.Org/Civics101 to take the survey today. That survey.prx.org/Civics101. Thanks.

Hannah McCarthy: [00:00:19] September 11 2021 marks the 20th anniversary of a tragedy that forever and profoundly changed the United States of America. Some of [00:00:30] you who live in the United States and are listening right now witnessed and experienced those changes. Some of you have never lived in a world without them. Over the course of this year, Civics 101 is going to be exploring and interrogating those changes. How did our government, our civil liberties, our security and society pivot following the attacks of that Tuesday morning?

Nick Capodice: [00:00:56] This will be an ongoing series that you'll hear intermittently throughout [00:01:00] the year. After all, the government and societal effects of 9/11 are not isolated to one date or one anniversary. They've been happening for 20 years and will continue to do so. So every once in a while, you'll encounter an episode from this series in your feed. And we also want to hear from you as we work through it. How has your relationship to the U.S. government and its leaders changed, if at all, in the 20 years since 9/11? Send a voice memo to Civics101@Nhpr.org. We hope [00:01:30] to use it in these episodes.

Sasha O'Connell: [00:01:47] And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room, so the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind [00:02:00] of crazy. And it was just pouring off the fax machine and the banks were sending us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Hannah McCarthy: [00:02:20] I'm Hannah McCarthy.

Nick Capodice: [00:02:21] I'm Nick Capodice,

Hannah McCarthy: [00:02:22] And that is the voice of Sasha O'Connell, a woman who spent most of her career in various roles at the FBI because [00:02:30] we're starting this Civics 101 series with a look inside the world of the people on the inside. The Federal Bureau of Investigation is an organization so synonymous with government its agents have long been referred to as quote G-men.

Nick Capodice: [00:02:47] I never knew that the G in G-men stands for government men?

Hannah McCarthy: [00:02:50] Yeah, government men.

Nick Capodice: [00:02:51] Totally new to me.

Hannah McCarthy: [00:02:52] For those who don't know, the FBI is also now synonymous with counter terrorism. That is the bureau's [00:03:00] explicitly stated number one priority, one of its best resourced missions. But it wasn't always that way at the FBI. So this is the story of how it happened, how four planes hijacked by the terrorist group Al Qaeda, three United States targets and nearly 3000 deaths -- the tragedy of September 11th, 2001 -- changed the FBI.

Sasha O'Connell: [00:03:27] I actually joined right into the counterterrorism program what [00:03:30] was then the International Terrorism Operations section? I joined in '98.

Hannah McCarthy: [00:03:34] Right now, Sasha is the director of the Terrorism and Homeland Security Policy Program at American University. But in September of 2001, she was working for the FBI.

Nick Capodice: [00:03:45] Before we go any further, Hannah, can you tell me what is the FBI? What do they do?

Hannah McCarthy: [00:03:49] The FBI investigates federal crimes. Now, the bureau itself lists those crimes in order of priority. We talked about priorities, right? And domestic and international [00:04:00] terrorism is number one. There's also international counterintelligence.

Nick Capodice: [00:04:05] Is that meaning like spies?

Hannah McCarthy: [00:04:07] Yeah, meaning spies. The FBI is supposed to prevent international spies from doing their job in international cyber attacks from happening. And cybercrime, by the way, is on that list of priorities, as is combating public corruption, white collar and violent crime and protecting civil liberties. They also handle stuff like organized [00:04:30] and drug related crime and health care fraud. And then the FBI works with the attorney general of the United States to get those crimes prosecuted.

Nick Capodice: [00:04:38] You said that the FBI's job is in part, protecting civil liberties.

Hannah McCarthy: [00:04:42] Yeah, they're supposed to be upholding the Constitution in their daily dealings.

Nick Capodice: [00:04:48] Ok, so the elephant in the room, if we're talking about the FBI and September 11th, it's the degree to which those civil liberties were or were not upheld after the attacks.

Hannah McCarthy: [00:04:59] This is [00:05:00] a very important point. I'm glad you brought this up. We will absolutely be addressing the rise of surveillance and how the U.S. government impinged on privacy, among other rights, following September 11th, 2001. That will come in other Civics 101 episodes, for example, about acts of Congress that resulted in some fairly carte blanche interpretations of surveillance powers. But today, for the purposes of this episode, we are looking at where the FBI [00:05:30] was on counterterrorism pre-9/11 and how those attacks changed it.

Nick Capodice: [00:05:38] Ok, fair enough. Got it. So back to the place of the FBI in the federal government. It's part of the DOJ, the Department of Justice, right?

Hannah McCarthy: [00:05:48] Yeah, that's the close work with the attorney general, right? That's who they work with to prosecute these crimes.

Nick Capodice: [00:05:53] Ok, so that makes it an executive branch department, which is run in the end by the president.

Hannah McCarthy: [00:05:59] And it [00:06:00] is through the Presidential Management Fellows program, which is designed to place grad students in federal jobs. That Sasha O'Connell, our guest today, ended up at the FBI in the International Terrorism Operations section

Sasha O'Connell: [00:06:16] In the years before September 11th, there was a real strong initiative underway at the FBI. Not only was the FBI working terrorism cases with partners, but also there was a restructuring in order to focus on terrorism [00:06:30] and a whole strategic planning process called Max Cap 05. That was ongoing, and I had the extraordinary opportunity, as one does as a young person in government to get to staff the working group that was sorting through, leading, building, assessing the program and building that strategic plan. So I was knee deep in that kind of strategic view of the terrorism program at the FBI on the lead up to 9/11.

Nick Capodice: [00:06:56] So if the FBI was working on this strategic plan to deal with [00:07:00] international terrorism, how does something as big as all the attacks on September 11th get through?

Hannah McCarthy: [00:07:07] That is the sort of perennial question of 9-11, not just when it comes to the FBI, but when it comes to all levels of government. There was a lot of scrutiny of the FBI following. This tragedy, because the question was, how could this have happened? And can the FBI really have been paying close attention to international [00:07:30] terrorism if this did happen?

Sasha O'Connell: [00:07:33] It couldn't be possible that the bureau was both focused and this happened, right? That couldn't be possible in people's minds. And in fact, it's much more nuanced than that. And that is possible, right? There was a contingent of the government that was extraordinarily focused on al Qaeda, including this program at the FBI before 9/11. But that's not enough, right? And one of the big lessons in my mind of 9/11 is, you know, having a small group looking around [00:08:00] the corner, having a small group, you know, focused on a threat is is not enough.

Nick Capodice: [00:08:05] While we're on the subject of how this all happened. I actually remember reading the 9/11 Commission Report, which is something that Congress and President George Bush requested after 9/11 to figure out what went wrong. It is tremendously well written. I remember that one of the major findings of the report was the FBI and other government agencies were not sharing information, and that likely [00:08:30] contributed to the success of these attacks on September 11th.

Sasha O'Connell: [00:08:33] We obviously had the 9/11 commission, which is an amazing if people haven't read it and you're really interested in what happened and where the gaps were. I mean, they do an incredible job. They did an incredible investigation, and the report is an incredible resource to understand what was happening.

Hannah McCarthy: [00:08:46] This report takes a look at a 1998 FBI plan to combat terrorism and says, and this is the actual wording here, "The plan did not succeed." The report determines that the FBI [00:09:00] was under-resourced. There were twice as many agents at the time, working drug enforcement as there were working counterterrorism. The training was insufficient. The information systems were lacking. They didn't have enough translators in key languages. The unit that Sasha was working on in 2001, Max Cap 05, was designed to increase FBI counterterrorism capability to maximum capacity feasible [00:09:30] by 2005. In September of 2001, almost every FBI field office was considered to be operating below maximum capacity.

Sasha O'Connell: [00:09:45] It was a Tuesday morning and it was bright and sunny, and yes, it was September 11th and I got married on November 17th in Boston, so we were knee-deep in wedding planning and I had a dress fitting on the South Shore that afternoon, so I was supposed to leave work early. I remember [00:10:00] what I was wearing and so I was pretty much focused on that that day, right? And not on work. I was in the Boston office, as I mentioned, and I didn't know a lot of people in the Boston office because I was up from headquarters and sort of placed in a pod, you know, a cubicle in the corner doing my work. And I just said hello to a few people over the summer, but I didn't really have relationships. So what happened actually in that morning was an agent who was sitting couple sort of rows away from me in the cubicles, had a little tiny TV in his cubicle at the time. [00:10:30] We didn't have what we now have everywhere, right, which is big screen TVs and every every floor of the FBI. And he stood up. I remember and said, something's happening.

News archival: [00:10:40] And I looked up and all of a sudden a plane smashed right there into the center of the World Trade Center.

Nick Capodice: [00:10:46] And Boston was a particularly significant place to be on this day because both planes that hit the Twin Towers came from Logan Airport in Boston.

Sasha O'Connell: [00:10:55] I remember looking out the window once we started to put some of the pieces together because [00:11:00] at the time it since changed. The Boston office of the FBI was actually in a private commercial building, but the federal building was right across the street. And I have a very distinct memory of thinking a plane is going to hit the building across the street, right? That's what's going to happen.

Hannah McCarthy: [00:11:12] There's some chaos and uncertainty. But eventually, Sasha remembers hearing from headquarters in Washington, D.C., and basically being told to get to work on this. After all, she is on the counterterrorism team,

Sasha O'Connell: [00:11:26] And I walked up to the executive floor and there was the leadership [00:11:30] team was standing in the hallway talking and I said, My name is Sasha. I'm here from the counterterrorism division at headquarters. And they said, Go to the basement, get a car and go to the airport. And I said, I'm not an agent. And they said, Great, get in the command post,

Nick Capodice: [00:11:43] Get in the car, go to the airport. What exactly is supposed to be going on on the FBI agent side of things in a case like this and folks

Sasha O'Connell: [00:11:52] Say, I want to work for the FBI or I want to be an FBI agent, like, what do you think they do right? And the truth is, most of what FBI agents do is talk to people. They interview people. Right. [00:12:00] So a lot of what was happening on that day, and this is when they said to me, go to the airport. They thought it was an agent. It's go start talking to people, right? That's how you collect human intelligence is you talk to people, right? So you talk to people at the airport. What happened, how they got on the plane? You talk to the baggage handlers, right? And you come back. And then there's a process that the FBI called setting a lead.

Nick Capodice: [00:12:19] Sasha is talking about gathering intelligence. I always thought intelligence gathering was the purview of the CIA, the Central Intelligence Agency.

Hannah McCarthy: [00:12:27] It absolutely is. Yes, both the CIA [00:12:30] and the FBI are part of the intelligence community, although the CIA is prohibited from collecting information regarding quote U.S. persons. Did you know that?

Nick Capodice: [00:12:40] No, I did not.

Hannah McCarthy: [00:12:41] The CIA is also not empowered as a law enforcement agency the same way that the FBI is. But to that point, prior to 9/11, the CIA was the lead against Al Qaeda. And when this attack happens on American soil, the FBI has to prioritize its focus on that terrorist [00:13:00] group as well. And these agents cannot leave any stone unturned in these cases, even in the chaos following the attacks. These agents had to figure out where physically to go, what specifically to ask in order to clarify what happened that day.

Sasha O'Connell: [00:13:18] What happened? Where did this bag come from? Who handled it right? They found the car in the parking lot. You've got to talk to the parking lot attendant, right? You're going to find litter in the car, then you're going to go to the hotel [00:13:30] where the receipt was in that car. All these things happen on 9/11, right?

Nick Capodice: [00:13:33] When Sasha says they found a car in a parking lot. What are they talking about? Was it a suspect's car? Was it like one of the hijackers car at the airport?

Hannah McCarthy: [00:13:42] Yes. Agents found both the car and the luggage of the individual, later considered to be the ringleader of the 9/11 attacks. And they found these at Logan Airport when they went to the airport. Again, Boston is a central element in the investigation on day one. [00:14:00]

Nick Capodice: [00:14:00] What was the luggage they found?

Hannah McCarthy: [00:14:02] Mohamed Atta's luggage. That's the ringleader. Just as an aside, his suitcase was only discovered because it never made it onto the plane in Boston after his connecting flight. Totally incidental. I feel like details like this really illustrate the significance of minutia in an FBI investigation. The suitcase and the car were full of evidence. And, you know, once the agents find this [00:14:30] evidence, they have to pass it on. They coordinate. They follow leads and they put the story together. And this is happening not just in Boston or around the country, but around the world.

Sasha O'Connell: [00:14:41] You can literally picture just the world lighting up with people talking to people and. Trying to figure out what's going on. Similarly, using other intelligence methods right to do that, whether that's sort of a digital collection, opportunities, right, but it's information gathering is a huge piece of kind of what's going on. And [00:15:00] then there's a lot of capacity back, whether it's in a field office or at headquarters trying to put those pieces together because this whole world is getting laid up and all this information is coming in and a you have to coordinate all those people and be you then have to coordinate all that intelligence, right? Which is just a fancy word for facts and information that are coming in.

Hannah McCarthy: [00:15:19] And the coordination part, that is Sasha on September 11th. She's in the command post and evidence is pouring in.

Sasha O'Connell: [00:15:27] We started getting markers and whiteboards [00:15:30] and made sure the fax machine was turned on and someone brought in an extra phone.

Hannah McCarthy: [00:15:34] Sasha mentioned that today FBI field offices have these big, beautiful conference rooms with loads of screens and resources. But on 9/11, she is in a windowless room with just a phone and a fax machine. This is before this anti-terrorism effort was majorly resourced.

Sasha O'Connell: [00:15:52] And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room that [00:16:00] were printed out and we could see and there was paper all the way around the room. And by the end of the day, my two biggest memories were one that the fax machine was right behind me. So I was sitting at a conference table and the fax machine was right behind my back. And paper was just pouring off the fax machine because airlines and banks. So the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind of crazy. And it was just pouring off the fax machine and the banks were sending [00:16:30] us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Nick Capodice: [00:16:45] What's up at the banks? The airlines thing makes perfect sense, but how are the banks connected

Hannah McCarthy: [00:16:51] At this stage in counterterrorism in this country, U.S. banks were already expected to block any Al Qaeda transactions [00:17:00] and seize their funds. But the hijackers of 9/11 made extensive use of U.S. banks. The 9/11 Commission Report concluded that nothing these attackers did would have tipped off the banks, but still after those attacks, anything is potential evidence anyway. Sasha is processing all of this incoming information.

Sasha O'Connell: [00:17:22] My job is to man that phone and talk to headquarters, figure out, you know, understand what they needed from the Boston office. And that's how we work 12 [00:17:30] hour shifts for the next oh, about eight weeks. And I did leave sort of duty in the command post shortly before my wedding.

Nick Capodice: [00:17:38] The pressure at this moment must have been incredible, especially for someone who, as you said earlier, was quite young and quite new to the bureau. Did Sasha say what it was like for her during those two months?

Sasha O'Connell: [00:17:51] Day one, it was just it's a blessing and a curse, right? You're so busy you don't have any time to think, and it's wonderful because you're busy and you feel like you're contributing. [00:18:00] But I wasn't thinking I was trying to survive and solve problems, right? And find the paper or clean up the fax machine or find George and run down a lead. There was no time to think. We didn't even have a TV in the command post at the time, so it's something I didn't realize. I think I mentioned to you that the first anniversary 9/11, I saw the pictures really for the first time in the video, right? I hadn't seen them. We were too busy just trying to get things sorted out or get agents to the airport, get the evidence back, you know? And again, I'm just trying to keep lists and keep organized. [00:18:30]

Nick Capodice: [00:18:30] It's just you would think that someone who is so closely involved with the investigation would be inundated with images and footage and news the way that we in the U.S. were every waking moment.

Hannah McCarthy: [00:18:40] You know, I think it would have been different had Sacha been in a modern command post surrounded by televisions and news analysis. Instead, it was her and a phone and a fax machine. And this constant drive to figure out the who, what, when, where [00:19:00] and why of September 11th.

Nick Capodice: [00:19:03] All right. Speaking of the modern command post versus the FBI that Sasha worked for in 2001, can we get into the changes that happened after the September 11th attacks? You had people in the FBI who were pretty clear on the fact that they needed to beef up counterterrorism efforts. So did they?

Hannah McCarthy: [00:19:22] Sasha left the FBI in 2002 to work for the private sector. She came back in 2007, and when [00:19:30] she did, the Bureau had reassessed its whole approach to counterterrorism. And the lack of resources that was no longer a problem for the counterterrorism effort.

Sasha O'Connell: [00:19:42] The counterterrorism program is resourced, so all the things we were asking for before 9/11 training translation analysis, right when we did that assessment, there were gaps. We knew there were gaps. We were asking for it in the budget and we weren't getting it from Congress, right? It just wasn't coming. And by the time I got back, like amazing, like we have all those [00:20:00] things right that had happened. And then the other interesting thing that had happened and I never worked in the counterterrorism division after, but it was the head of strategy. So I got to work a little bit with all the divisions for a time is that before 9-11, the counterterrorism division operated much like the criminal division in that cases were more decentralized. So a special agent in charge of a field office like in New York, I'm one of the largest field offices. We're really responsible as they are on the criminal side for their cases. And there was sort of programmatic oversight at headquarters. [00:20:30] And, you know, obviously the most sensitive cases got briefed to the director or whoever needed for legal review. But fundamentally, there was kind of this decentralized approach to case management during the time that I was white and really since the counterterrorism program swung the other direction. One hundred and eighty degrees cases are really centrally managed out of FBI headquarters.

Hannah McCarthy: [00:20:53] Prior to this, FBI field offices were fairly autonomous operations. And that autonomy ended with [00:21:00] 9/11 and this new approach to counterterrorism. A lot of people actually blamed this decentralized element of the FBI for some of the failures that allowed 9/11 to happen. And when Sasha returned to the FBI, de-centralized was a thing of the past.

Nick Capodice: [00:21:19] I heard a lot about Joint Terrorism Task Forces, were these part of the restructuring.

Hannah McCarthy: [00:21:26] Yeah, but Joint Terrorism Task Forces had been around [00:21:30] since nineteen eighty. They started in New York City on nine eleven. We had thirty five of them in the U.S. These were locally based investigators and analysts who are in various states and supposed to watch out for terrorist activity in the U.S.. Now, after 9/11, the FBI almost overnight nearly doubled these forces. They had 56 forces in the days after 9/11. We now have 104. The FBI also [00:22:00] established a national joint terrorism task force at headquarters in D.C., which coordinates all of these local task forces. Again, this is all part of this big centralization movement. And the bureau also reassessed how it gathered and reported information. Part of the problem leading up to nine eleven was communication and coordination across the bureau itself and with other agencies. [00:22:30]

Sasha O'Connell: [00:22:30] There had been a major initiative called SET, which looked at and then realigned the way the FBI did intelligence intake collection and reporting. So it was really about the business process and the prioritization of intelligence collection and shoring up a lot of those gaps, frankly, that existed before 9/11. So that was a huge kind of it's almost like a strategic change management initiative that Director Mueller ran to shore up that intelligence function of the FBI and [00:23:00] further professionalize the intelligence workforce to be able to drive that to the next level. So that was huge.

Hannah McCarthy: [00:23:06] And as the FBI is reassessing and reorganizing itself, there is a larger governmental push to think about separating the intelligence gathering and national security mission of the FBI from the criminal investigation and domestic law enforcement mission. But the FBI itself did not want this, and Sasha believes the reason the bureau remained unified is because they [00:23:30] had been attempting to do counterterrorism work before 9/11. The will was in place, even if the resourcing was not.

Sasha O'Connell: [00:23:40] Yes, there was a lot again, as you mentioned, kind of push right at the beginning of holding folks accountable. And part of that led to let's split up the FBI. Some of the work that I had been involved in in terms of Max Cap 05 and explaining that there was a vision for kind of pulling this all together and building maximum capacity. I think and I got this was my sort [00:24:00] of opinion sort of helped turn those tides, and a lot of work was done by a lot of people who are involved in our partner organizations to say that's not the way to go in the United States, right? You don't want a domestic intelligence agency, right? Focus on U.S. citizens, right? NSA is focused externally. CIA is focused externally. We don't want a domestic intelligence function split off from the FBI. We want our domestic intelligence to the extent it happens to be tied closely to our enforcement, which is all governed by the same set of domestic constitution, [00:24:30] laws and everything else, and ultimately the bureau through a lot of work, a lot of people and a lot of folks, for example, on the Hill who got educated and understood this, and the 9-11 commission findings kept the bureau together, and still today the FBI has again that kind of national security, intelligence function and all the traditional criminal responsibilities that we think of with federal law enforcement.

Nick Capodice: [00:24:50] So should we be thinking of the FBI post-9/11 as the ones in charge, the front line of defense?

Sasha O'Connell: [00:24:56] So sort of, yes and no, I would say so. Just to clarify that the [00:25:00] FBI is the lead federal agency right for counterterrorism. There's no question about that domestically, right? There's a lot of work going on overseas because a lot of the threats don't start here, right? And so other U.S. government and foreign government partners are doing that work globally. And then in the United States, you know, there's only I think today around 14000 FBI agents right to cover the world. And they they are global. You know, there's 18000 state local law enforcement organizations, [00:25:30] right? I think there's like thirty six thousand police officers in New York City. So actually, in any instance, it's going to be state and local law enforcement. That's truly the front line, right? There just aren't the number of FBI agents right to to be out doing the interviewing. We're talking about the kind of human intelligence collection that's required to kind of understand what's happening with these threats.

Hannah McCarthy: [00:25:50] Now, as we know, the change that happened after 9/11 is this laser focus on a priority that was just not being sufficiently resourced before the attacks [00:26:00] in two thousand one. But even with that necessary funding and staffing and focus that came out of 9/11, there still aren't enough agents to handle everything like Sasha says. So if you keep thinking of the FBI as this agency that worked to centralize it is the coordinating force among all of these disparate law enforcement agencies working counterterrorism in the U.S..

Sasha O'Connell: [00:26:23] And for the United States, the FBI is kind of the quarterback, maybe, right? You know, at the end of the day, the policy is set by the White House to [00:26:30] right when it comes to strategy. When it comes to investigations, though, that's the FBI's calls today. Like in a lot of programs, the counterterrorism program is run in a task force model where you know you can have private sector organizations, you can have foreign partners, you can have all the different USG federal partners, you can have state and local law enforcement. And the FBI coordinates that task force.

Nick Capodice: [00:26:53] And you explicitly said to me earlier that we are not focusing on a shift in surveillance or [00:27:00] the intense scrutiny the FBI came under in the wake of these changes after 9/11. But I do have to ask, like, did Sasha talk about that at all? Like that the attacks are not going to just change the structure of the FBI, but the whole idea of security in the United States and not just security like civil liberties, surveillance, nationalism, xenophobia, Islamophobia. Were there any signs to the people on the inside of what was going to come next?

Sasha O'Connell: [00:27:29] I do remember [00:27:30] I don't know how long it was after, but after things were more in routine, it was probably at least a month out. I remember sitting in the command post one day, and one of the things that happened in the command post is that we answered the phone when the public called, and I did some of that too, when the headquarters line was quiet. And I remember taking a call where the caller said, You know, I want to report to the FBI because these people are taking pictures of a bridge. And I don't know what language they're speaking, but it's not English. And I was like, Oh boy, we got a problem, right? And things are going to change [00:28:00] like this is. And so that was when I started to think, Oh boy, what is happening out there, right? And I was starting to think about backlash and hate crimes. I started to think about security and privacy changing.

Hannah McCarthy: [00:28:19] So many people have only ever known the United States as this place of super heightened security, with a hyper focus on terrorist [00:28:30] groups both domestic and international. A place ostensibly under constant threat and an understanding that the government is hyper focused on that threat. And that leaves everyone more vulnerable to government suspicion to surveillance. This is just the way things are in the United States today. But I do think it's important to ask why. I think it's important to scrutinize that [00:29:00] the FBI is the executive intelligence and law enforcement agency in the U.S., and its primary, an overwhelming focus is terrorism. And that focus trickles down to the everyday experience of people in this country and around the world. That is what 9/11 did to the FBI.

[00:29:37] This [00:29:30] episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie sees all. If you want a nearly as portable and twice as quiet civics lesson in your back pocket, Nick and I wrote a book on it. It's called A User's Guide to Democracy: How America Works. If you [00:30:00] liked this episode of Civics 101, or if you want us to go deeper and do more, consider making a donation to the show at civics101podcast.org. We are supported by You. You are the reason we're able to keep going and do better all the time. And while you're there, you can find our entire backlog of episodes -- we have many -- and submit your own questions about American government. Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:30:30]


 
 

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John Marshall and the Supreme Court

John Marshall was the longest-serving Chief Justice in Supreme Court history. In today’s episode, we learn all about the man as well as the decisions that shaped the highest court in the land; from Marbury v Madison to McCullough v Maryland.

This episode features the voices of Susan Siggelakis, Robert Strauss and Randolph Moss.


Transcript

Mitch Scacchi: Hey, Nick and Hannah, can I tell you both a story?

Nick Capodice: Of course! This is Mitch Scacchi by the way everyone, our summer intern and we hate to see him go.

Hannah McCarthy: Yeah Mitch, let's have it.

Mitch Scacchi: The year is 1801. John Adams is in the final days of his presidency. Thomas Jefferson is poised to take over on March 4th. Down and out about losing a second term, Adams decides he must act.

Susan Siggelakis: Adams decided that he was very worried about the future of the country now that Jefferson and his administration were poised to take over, and he appointed what was called the "midnight judges." [00:00:30]

Mitch Scacchi: This is Susan Siggelakis, professor of political science at the University of New Hampshire.

Susan Siggelakis: There had been a bunch of new judgeships created under the Federalists and he was filling them before he left. In fact, it was the night before the new inauguration. And he filled out a bunch of what they were called "commissions." And Marshall was the outgoing Secretary of State, and so his job was to essentially finalize the paperwork. But he actually didn't really fully [00:01:00] complete the job because he didn't, he was very lax about certain things. And so some of them actually didn't get delivered.

Mitch Scacchi: Secretary of State John Marshall got some of the appointments out, but he missed some others. And one of these undelivered commissions was for William Marbury, who had been appointed by Adams as Justice of the Peace in the District of Columbia. Marbury asks the new administration for his job, but he doesn't receive a response. So he and three others petitioned the U.S. Supreme Court under Section [00:01:30] 13 of the Judiciary Act of 1789 to compel the new Secretary of State, James Madison, to deliver their commissions and give them their jobs. And the Chief Justice who decides to take the case two years later? Oh, yeah, it's John Marshall.

Hannah McCarthy: I can already see a conflict for Marshall with this case. I mean, he was the guy who gave Marbury and these three other appointees their commissions in the first place when he was Secretary of State.

Mitch Scacchi: But nobody thought it was wrong for Marshall to rule on the case. And [00:02:00] it didn't make the headlines. But it's not necessarily the facts of the case that make it well-known, it's what Marshall decides to do with it.

Robert Strauss: And he decides to take on a case that's going to establish what he wants to establish, and that is the right for the Supreme Court to review laws.

Mitch Scacchi: This is Robert Strauss, author of "John Marshall: The Final Founder."

Susan Siggelakis: He essentially holds that Section 13 of the Judiciary Act was actually an unconstitutional action of Congress because Congress gave [00:02:30] it gave the Court jurisdiction that it wasn't allowed to have under Article Three of the U.S. Constitution.

Mitch Scacchi: Marshall says that this law giving the Supreme Court jurisdiction over the case is unconstitutional. So he can't rule on the case. And just like that, in 1803, in what became the landmark case of Marbury v. Madison, Marshall established the principle of judicial review.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice. [00:03:00]

Hannah McCarthy: And I'm Hannah McCarthy. And today we're talking about John Marshall, the longest-serving Chief Justice of the Supreme Court and his influence in shaping the Court we know today.

Nick Capodice: Our guide for this episode is Mitch Scacchi. We at Civics 101 have been honored to have him as our intern this summer. Let's have it Mitch!

Mitch Scacchi: Thanks, guys. Like many of the founders, John Marshall is an impressive but also complicated figure in our nation's history. But to really understand the Constitution, the judicial branch, [00:03:30] the Supreme Court, and the scope of federal power that we see today, you have to know who John Marshall was. It was one thing for the Framers to write the Constitution, and it was one thing for it to be ratified, but it was another thing entirely for the Constitution to be applied. Nobody really knew just what the words on paper would look like in practice, and John Marshall was one of the first to give effect to those words. In doing so, he shaped the practical meaning of the young Constitution, established the judiciary as an equal branch of [00:04:00] government, and made the Supreme Court into an institution of great power and influence.

Hannah McCarthy: Ok, Mitch, let's start from the beginning.

Mitch Scacchi: Marshall was born in 1755 in Virginia, a colony with a huge enslaved population, the most of any colony at the time. Marshall would later own hundreds of enslaved people himself. This is an important thing about Marshall, particularly in the way it shaped some of his judgments from the bench. But for this episode, [00:04:30] we're going to focus on how Marshall shaped the role of the Chief Justice, the Supreme Court, and the federal government. When the Revolutionary War broke out, Marshall volunteered with his father.

Robert Strauss: But he started out as a young soldier in Valley Forge. His father was a friend of George Washington's, they were fellow surveyors. So when the war started, of course, his father wanted to go off with his friend and fight the British, and he brought his son along with him, his oldest son.

Mitch Scacchi: This is Robert Strauss again. So [00:05:00] after the Revolutionary War, John Marshall studied law at the College of William and Mary, and he became a successful lawyer in Richmond, Virginia. But the law wasn't Marshall's only ambition. Here's Professor Susan Siggelakis.

Susan Siggelakis: He was a legislator, state legislator in the Virginia General Assembly. He actually was a delegate to the Virginia ratifying convention, which ratified the United States Constitution. And later he actually worked with Madison in crafting the First Amendment. [00:05:30]

Nick Capodice: He served in the Revolutionary War, he helped ratify the Constitution, and he drafted the First Amendment with James Madison. This guy's everywhere!

Hannah McCarthy: And this is all before he gets his first high-profile job?

Mitch Scacchi: Exactly. In 1799, he's elected to the U.S. House of Representatives from Virginia, but he didn't serve long because President John Adams nominated Marshall to be Secretary of State in June of 1800.

Nick Capodice: All right, so as if what he's already done isn't enough, he [00:06:00] joins Congress and then moves into the executive branch as the Secretary of State?

Mitch Scacchi: Yeah, and there were some foreign relations involved with the position, but he's basically Adams's chief of staff. But he's only Secretary of State for less than a year. The third Chief Justice of the Supreme Court, Oliver Ellsworth, was sent on a diplomatic mission to France, which was actually common at the time. But he gets stuck overseas and the Court needs a Chief Justice.

Robert Strauss: So now he's stuck there. He gets sick and [00:06:30] he sends a note back, "I'm not coming back. You're going to have to find somebody else." So the Secretary of State, Marshall, goes to Adams and he suggests people, including bringing John Jay back, and Adams says, "No, I think it's you. I like you." So now he is both Supreme Court Chief Justice and Secretary of State.

Hannah McCarthy: It is wild to think that Marshall was nominated with less than two months left in Adams's presidency. He was so close to never becoming [00:07:00] Chief Justice.

Mitch Scacchi: And he wasn't even Adams's first choice. Adams nominated former Chief Justice John Jay to serve again, but Jay turned him down. So Adams went with Marshall instead. Once Marshall was nominated, the Senate actually delayed his confirmation because they hoped that Adams would pick someone else. But he didn't. And eventually the Senate voted to confirm Marshall to the Court.

Hannah McCarthy: Yeah, Adams later said that, quote, "My gift of John Marshall to the people of the United States was the [00:07:30] proudest act of my life." But why did Adams eventually settle for Marshall?

Susan Siggelakis: You know, I think Adams saw in him a real, he was a real Federalist. I mean, he was somebody who could be trusted. He, he believed in a lot of the things that Adams believed in.

Mitch Scacchi: At this time, there were two major political parties: the Federalists, led by John Adams and Alexander Hamilton, and the Democratic-Republicans, led by Thomas Jefferson and James Madison. [00:08:00] In short, Federalists believed in strong central government and a loose interpretation of the Constitution, while Democratic-Republicans believed in greater respect for states' rights and a strict interpretation of the Constitution. John Marshall was a loyal Federalist.

Nick Capodice: And now he's also Chief Justice of the Supreme Court and Secretary of State.

Mitch Scacchi: Yeah, I was surprised by this. But then again, Marshall became Chief Justice on February 4th, 1801, exactly one month before the [00:08:30] end of the Adams presidency. So Marshall served as Secretary of State and Chief Justice at the same time for only one month. And it's important to also mention that the Supreme Court was not the esteemed institution it is today. In fact, the first Chief Justice, John Jay, really didn't take the job seriously. He took on very few cases. No one was really sure what role the Court should play, so nobody really cared about Marshall serving in both roles.

Robert Strauss: The Supreme Court is relatively undefined in the Constitution. It's the highest [00:09:00] court, there's no question. But Jay doesn't take it upon himself to do much about it. He eventually quits to become Governor of New York, which he figures is a better deal than being the Supreme Court Chief Justice.

Susan Siggelakis: Unlike today, the Supreme Court really wasn't a very important institution in American government.

Nick Capodice: And so the Supreme Court was largely insignificant compared to the other two branches.

Mitch Scacchi: You could say that. The Supreme Court met in the basement of the Capitol Building, if that's any indication of what the other branches thought of it. But John Marshall...he [00:09:30] changed that. As Chief Justice, Marshall was determined not to sink into the annals of history as an insignificant justice on an insignificant court. No, he was going to do something with this job.

Susan Siggelakis: If you look at Marshall's career, I would say between 1801 when he got on the Court and 1835, the Court actually rendered about a thousand opinions, a thousand [00:10:00] cases were decided. He wrote about 500 of those individually. So you can see the guy was a workhorse. You know, he sort of was a captain of a ship that, a captain of an institution that gradually grew in importance during his time on the Court.

Robert Strauss: And their decisions were all, I hesitate to call them unanimous, but they spoke as one voice. In other words, they might have been 4 to 2 [00:10:30] in this case, but when the when the case is written it sounds like all of them are in agreement. And Marshall thought this would give the Supreme Court a little bit more sway.

Mitch Scacchi: This idea that the Court would speak as one voice when it issues a majority opinion seems so obvious to us now. But this wasn't always the case.

Randolph Moss: Before he was Chief Justice, each justice would state their own views. And he was the one who instituted the notion of actually having an opinion for the Court, which, by and large, during the early days of the Marshall Court, he was the one who announced.

Mitch Scacchi: This is Judge [00:11:00] Randolph Moss. He serves as a judge on the United States District Court for the District of Columbia.

Hannah McCarthy: So Marshall steps in and says that instead of issuing separate opinions, the Court will issue one majority opinion that will serve as the voice of the Court.

Nick Capodice: Yeah, and I see this as being a way for Marshall to give the Court more legitimacy, to establish the Court as one entity, one force, with one opinion to be followed.

Mitch Scacchi: Right. But more than the single voice Marshall gave the Court, his tenure [00:11:30] was also characterized by that idea of unanimity. All the justices agreeing with the decision of the Court. Marshall believed that, if every justice agreed with the Court's ruling, the Court's decisions would have more weight and authority.

Susan Siggelakis: I think it's a tribute to his organizational skills. I think it's a tribute to the fact that he had a court most of the time, actually, who were part of that same founding generation, and they had similar views. [00:12:00] So it wasn't that difficult, I think, to get unanimity.

Hannah McCarthy: I mean, this is remarkable. Marshall redefined the role of Chief Justice and of the Supreme Court itself.

Nick Capodice: Yeah, and the judiciary as a whole.

Susan Siggelakis: You know, he was important for building up judicial power, but also for recognizing the limits of judicial power. And I think that's the key thing about Marshall.

Mitch Scacchi: Going back to that 1803 case Marbury v. Madison, Marshall built up judicial power by establishing [00:12:30] the principle of judicial review.

Hannah McCarthy: Ok, yes, judicial review. Let's define this. What is judicial review?

Susan Siggelakis: Judicial review is the authority of a court to render void and inoperable any act of a legislature or any other act of any other part of the government based on the fact that it's conflicting with some, something in the United States Constitution.

Mitch Scacchi: Marshall wrote in his opinion that "It [00:13:00] is emphatically the province and duty of the judicial department to say what the law is."

Nick Capodice: And that's pretty much what we think of as the whole point of the Supreme Court these days, isn't it? To rule something unconstitutional or uphold its constitutionality. But the Court did not actually have that power until John Marshall said that it did.

Susan Siggelakis: He was saying, you know, somebody has to be the last word on what the Constitution says, what it allows government to do and what it doesn't allow [00:13:30] government to do. And the Court is the best equipped to do that, particularly since it's not vested in the political struggles of the time. It's supposed to be a more neutral, a more detached body from the the opinions of the day, shall we say.

Robert Strauss: What we had when Marshall decided on judicial review was we finally had three coequal branches of government. So I think that's why I'd say Marbury v. Madison sort of [00:14:00]ends the founding of the country. From there on, it's an elaboration on what we already have.

Mitch Scacchi: Marshall gave the judicial branch some real power to hold the other two branches and the states accountable to the Constitution. But Marbury v. Madison is also a case in which Marshall recognizes the limits on judicial power. Here's Judge Moss again.

Randolph Moss: That's another tradition set by John Marshall, is that in every case we say to ourselves, do I actually have the power to decide this case? That's a question [00:14:30] of whether there's a statute that gives you the power to decide the case and whether the Constitution gives you the power to decide the case. And if it doesn't, then we're done at that point, and there's nothing left for the Court to say.

Mitch Scacchi: Now, this wasn't Marshall's only significant case. He was also instrumental in establishing the idea that federal power should overrule state power when they come into conflict,

Hannah McCarthy: Wait, are we talking about McCulloch v. Maryland here, 1819?

Mitch Scacchi: Absolutely. McCulloch v. Maryland is a case where a state government challenged the existence [00:15:00] of the National Bank. Alexander Hamilton, as Secretary of the Treasury, wanted to establish a national bank to help stabilize and improve the nation's credit. And this dream of his came true. But many states hated the National Bank, including Maryland, which imposed a tax on the Bank. James McCulloch was the cashier of the Bank's Baltimore branch, and he refused to pay this tax. This case eventually made its way to the Supreme Court, and the big question facing Marshall was, [00:15:30] Is the National Bank constitutional?

Susan Siggelakis: The state of Maryland and other states would say, there's nothing in the U.S. Constitution that says Congress can charter a bank, nowhere does it say that. And if you look in Article One, section eight, which is where the enumerated powers of Congress are, you don't see it. You know, you don't see a place where it says Congress shall have the power to charter a bank. But when argument was taken before the U.S. Supreme Court, Marshall, again thinking [00:16:00] about his idea of being a Federalist, the idea of a strong nation as opposed to partiality of various states all pursuing different policies, he sided with the National Bank and the nation.

Mitch Scacchi: Marshall look to the Necessary and Proper Clause of the U.S. Constitution, which gives Congress the power to do whatever is "necessary and proper" for carrying out its other stated powers. So was the establishment of the National Bank a necessary [00:16:30] and proper action taken by Congress?

Susan Siggelakis: The states were saying, well, it's not absolutely necessary for the nation to have a bank. You know, it might be helpful, but the language of the Constitution says "necessary and proper." And they read the Necessary and Proper Clause as essentially allows for things that are absolutely necessary rather than simply helpful or convenient. Marshall, on the other hand, reads it essentially as convenient. So [00:17:00] essentially, he allows Congress to be the judge of its own powers.

Hannah McCarthy: So Marshall interprets, quote, "necessary and proper," to really mean "appropriate and legitimate." As long as Congress is acting toward a constitutional end, then the means to get there are constitutional, too, like creating the National Bank.

Mitch Scacchi: Right, as long as those means aren't explicitly outlawed in the Constitution.

Randolph Moss: So that's the first question, he said, yes, Congress has this power, and that was [00:17:30] a question of enormous importance. But the second question was also enormously important, and he said, and Maryland can't tax the Bank because if Maryland can tax the bank Maryland can destroy the bank. And in doing that, Marshall, early on in the Court's history, established the supremacy of federal law and supremacy of the federal government over the state governments, at least within the realm in which there is federal power. So those were both enormously important propositions.

Nick Capodice: Marshall's decision here must've had a major impact [00:18:00] on the scope of federal power.

Randolph Moss: Well, I mean, with respect to the country as it ultimately developed, it could not be more important. It's what allows us to actually have a strong national government. I agree that McCulloch, in terms of defining the nation, may be a more important decision than Marbury v. Madison.

Mitch Scacchi: In fact, this decision opened the door to what are called implied powers.

Hannah McCarthy: Right, those are the powers the federal government has even though they are not explicitly [00:18:30] stated in the Constitution.

Susan Siggelakis: Smarter people than I have traced the explosion of national power and the diminishment of state power to two decisions by the Marshall Court. One, obviously, McCulloch, the other one was called Gibbons v. Ogden.

Mitch Scacchi: It's enough to know that Gibbons v. Ogden was a case about navigation rights on the Hudson River between New York and New Jersey. The question facing Marshall was whether the Commerce Clause of the Constitution gave Congress power to regulate interstate [00:19:00] navigation. And in 1824, he ruled that Congress has that power over the states, that interstate commerce included all types of commercial intercourse between the states, including navigation.

Randolph Moss: It is, I think, still the seminal case on the commerce power. The power to regulate commerce between states, so for example between New York and New Jersey, is a federal power, and not a state power. And if each state can regulate commerce in a way that [00:19:30] limits the flow of commerce between states, it's very hard to have a national economy. That's something that Hamilton saw, it's something that's in the Constitution itself, in the Commerce Clause, and it's something that Marshall again gave life to in Gibbons v. Ogden.

Hannah McCarthy: So in both McCulloch and Gibbons, Marshall interprets the Constitution in such a way that results in the expansion of federal power over time, right?

Susan Siggelakis: Those two cases are often twinned together. [00:20:00] There's very few limits on what Congress can do to the economy because the Court is just not going to step in to second-guess what Congress wants to do, right? In other words, Marshall would say, we're not experts on the economy, we're not the experts on taxation, those kinds of things. So we'll just let the people and their elected representatives figure out whether they think this is good or not good.

Randolph Moss: To the extent that Gibbons stands for the proposition that it's up to the federal [00:20:30] government to regulate commerce between the states and that states cannot limit commerce between the states, that is a proposition that is not, today, subject to any reasonable doubt.

Nick Capodice: From all this, you can easily see just how much of an impact Marshall had not just on the Court and the judiciary but on all aspects of federal power in the centuries that followed. Congress's power over the economy, FDR's New Deal programs, the Affordable Care Act, the [00:21:00] stimulus bills passed because of COVID-19 - all of these examples of federal power can be traced back to Marshall's interpretation of the Necessary and Proper Clause and the Commerce Clause of the Constitution.

Randolph Moss: I think that's exactly right. He gave meaning to those words. I think that one of the things that is essential about John Marshall is that he had vision in the same way that I think Alexander Hamilton had vision for the country and a country that would eventually grow into what it is today. And obviously, neither of them understood exactly [00:21:30] what the country was going to look like today, but they did have a vision of providing the tools to a national government that would allow it to become what it's become today.

Mitch Scacchi: And that's why Jean Edward Smith calls him the "Definer of a Nation" in his biography of Marshall. Marshall gave real practical meaning to those words in the Constitution and set this country down a path that leads us to where we are today. But despite his tremendous [00:22:00] influence on the Supreme Court, his legacy is complicated. For one, Marshall bought and sold hundreds of enslaved people throughout his life, and he never wrote an opinion supporting freedom for Black Americans.

Susan Siggelakis: He actually sponsored a bill in the Virginia legislature, he was a member of the legislature at one point, to encourage what was called manumission. In other words, for people to individually free their slaves. He actually founded a society for colonization of freed slaves, [00:22:30] which obviously today people are against, and many people were against it at that time, too, but it was the idea of sending them back to Liberia or colonization. And that was seen as actually a rather progressive view at the time compared to keeping them enslaved, you know, for the rest of their lives in the United States.

Mitch Scacchi: Supporters of colonization efforts did so for many reasons. Some were opposed to slavery and hoped that helping people move to Africa would encourage enslavers to voluntarily free their enslaved populations. [00:23:00] Others saw Liberia as a way to rid the new nation of Black people. Opponents of colonization saw the efforts as racist and pro-slavery. Although Marshall supported the colonization of free Black people throughout his life, he never considered freeing his own enslaved people and resettling them in Liberia.

Hannah McCarthy: And I know that the rights of Native Americans are another complicated area for Marshall. In the case of Worcester v. Georgia in 1832, he upheld the rights of the Cherokee [00:23:30] Nation and declared all Georgia laws about their land unconstitutional.

Susan Siggelakis: The important thing about that case is what Marshall wrote about the Cherokee Nation, and if I could just read it, he says, "The Cherokee Nation then is a distinct community occupying its own territory with boundaries accurately described in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the ascent of the Cherokees themselves or in conformity with treaties and [00:24:00] with the acts of Congress. The whole intercourse between the United States and this Nation by our Constitution and laws is vested in the government of the United States."

Nick Capodice: In other words, tribal sovereignty.

Mitch Scacchi: Yup. The United States and its citizens must respect Native American tribes, their lands, and their sovereignty. This is one of several cases Marshall's Court decided on the rights of Native peoples, decisions that have been seen by some as the foundation of federal Native American law and others as laying the groundwork [00:24:30] for the control and decimation of Native Americans. This is all part of Marshall's complex legacy.

Hannah McCarthy: Now, I know that Robert wrote a book called "John Marshall: The Final Founder." And what do we make of this idea that John Marshall even was a founding father, perhaps the final founder?

Robert Strauss: He definitely was. I mean, in a certain sense, he kept the nation together because it really was splitting up in 1800. I mean, if there were not this "definer" as the other book calls him, we [00:25:00] could've split up as a country very easily.

Randolph Moss: And I think that, I think he is, I think he did play as significant a role as the founders in defining what sort of country we have today.

Nick Capodice: And is it fair to say that he is one of the most influential Supreme Court justices in history?

Mitch Scacchi: Well, the Supreme Court gets the last word on the meaning of the Constitution. You could argue that's all thanks to John Marshall. It's no exaggeration to say that the Supreme Court would be far less supreme today if not for him.

Susan Siggelakis: I [00:25:30] mean, obviously, I guess, that goes without saying. I mean, obviously, Marbury v. Madison is the most quoted decision. The phrase that you said, that it is emphatically the province and the duty of the judiciary to say what the law is, that line is the most commonly cited in every case, almost in every Supreme Court case or lower court case that there is. So I think he was, you know, enormously influential in raising the prestige of the Court, in tackling the [00:26:00] key issues of the day.

Randolph Moss: Well, you start with cases as great as Marbury v. Madison, which casts the judiciary as the deciding voice in what the Constitution means and what the law is. We don't step back to think about it, but the judiciary today is what it is in large part because of John Marshall.

C-SPAN: "Off the main justice's dining room [00:26:30] is a smaller dining room for smaller functions known as the John Marshall Dining Room, and that's due to a sculpture that was placed there in the mid-1970s of John Marshall. Chief Justice Warren Burger decided that he wanted to make that the theme of the room, and so...."

Mitch Scacchi: If you're walking through the lower level of the Supreme Court Building, you'll see a huge statue of John Marshall. He's sitting in a massive chair right in the center of the downstairs of the Supreme Court. And there's a reason he's there, in the middle of the building. It's because, in a way, John [00:27:00] Marshall made the Supreme Court.

Randolph Moss: And so I think, and the point I'm trying to make is, in part by just the way Marshall carried himself through his career as a justice and otherwise in his career, I think he did help further establish both the independence and the integrity of the judiciary.

Nick Capodice: Today's episode was written and produced by Mitch Scacchi, with help from Jacqui Fulton, Christina Phillips, Hannah McCarthy and me, Nick Capodice.

Hannah McCarthy: Erika Janik is our Executive Producer. Music in this episode by cymbalBird, Sir Cubworth, [00:27:30] Blue Dot Sessions, and Chris Zabriskie.

Nick Capodice: Special thanks to Rebecca Fanning from the U.S. Courts, and a fun quick fact about Professor Susan Siggelakis: She was Mitch's thesis advisor at UNH, and he wishes to thank her for her contributions to the episode.

Hannah McCarthy: You can hear all of our episodes of Civics 101 at Civics101podcast.org. You can also listen to us on Apple podcasts or wherever you get your podcasts. And if you're so inclined, leave us a review, we want to know what you think. Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:28:00]


 
 

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This podcast is a production of New Hampshire Public Radio.

Civil Rights: Obergefell v Hodges

It’s the most recent landmark case in our Civil Rights SCOTUS series, the decision that said the fundamental right to marry is protected under the 14th Amendment. How did it come about? What was the status of marriage before June of 2015? And why is the government so involved in the marriage business anyways?

This episode features the voices of Melissa Wasser from the Project on Government Oversight and Jim Obergefell, the named party in Obergefell v Hodges.

Click here for a Graphic Organizer for students to fill out while listening to the episode


Transcript

Obergefell all.mp3

Jacqui Fulton: I've been married twice the first time I was very young and closeted, in part because of all the homophobia and bigotry and stuff like that.

Nick Capodice: This is Jackie Foltyn, a producer here at Civics 101. And this is Fendall Fulton.

Fendall Fulton: I'm Fendall, I am Jacki's other half.

Nick Capodice: Jackie and Fendall got married at Odeorne Point in November of twenty eighteen.

Jacqui Fulton: I remember when I went with my ex now ex-husband and we're doing the paperwork and stuff and asked if we were cousins or if we were [00:00:30] blood related. I thought that was kind of funny, but it was like super easy to fill out, you know, no problem. And so whenever Fendall and I went to do the paperwork, it asks and asked who is Person A and who is person B? And I was like, well, how do we know? Like, I guess I guess it could be personal because they're older than I am. Yeah.

Fendall Fulton: So I took the A role, Jacqui took the B role. But that's not indicative of our actual actual [00:01:00] roles in life.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Jacqui Fulton: And I'm Jacqui Fulton.

Nick Capodice: And today we're learning about one of the most recent landmark Supreme Court decisions; so recent it is not yet required in many states civics curriculum, though I imagine it will be soon. The decision that made marriage marriage Obergefell v. Hodges 2015.

Jim Obergefell: A Supreme [00:01:30] Court ruling announced Minutes ago extends same sex marriage In America. The justices ruled Five to four that states...

Jacqui Fulton: Before we get started, I just want to know why. Nick, why is the government involved in marriage in the first place?

Nick Capodice: Well, Jacqui, as you know, marriage was not always about two people who loved each other before the late eighteen hundreds. The explicit goal of marriage was usually to acquire useful in laws, passed down property and gain political and economic power. [00:02:00] But there's a shift around the turn of the century with the rise of wage labor, where states begin to use marriage as a way to give out resources like health care or Social Security. And frankly, they do this because it's cheap to do it that way. Instead of giving everyone those resources, just give them to the breadwinner in a family via an employer and extend them to your spouse and children.

Jacqui Fulton: Ok, and so a same sex union flies in the face of the system and therefore LGBTQ [00:02:30] plus couples who live together did not get those resources.

Nick Capodice: They did not. Same sex unions have existed since the beginning of recorded times, as has homophobia. But in the United States, LGBTQ plus couples have lived together in relationships akin to marriage in every facet. Save the legal benefits. The only way a couple could get those benefits, and this happened predominantly in the 1970s to the 2000s, was for one partner to adopt the other.

Jacqui Fulton: How [00:03:00] far back do we have to go to understand marriage equality laws before June of 2015?

Nick Capodice: The first challenge to the legal definition of marriage being between two people of the opposite sex was in the 1970s,

Melissa Wasser: Baker vs. Nelson, which is a 1971 case out of the Minnesota state Supreme Court.

Nick Capodice: This is Melissa Wasser. She's policy counsel at POGO, the Project on Government Oversight. James McConnell and Richard Baker applied for a marriage license in Minneapolis, and the district [00:03:30] court clerk refused to grant it because they were both men and went up to the Minnesota Supreme Court.

Melissa Wasser: So even though that's a state Supreme Court, Baker in that case ended up appealing to the Supreme Court and the Supreme Court had a one line order that said this appeal did not raise, quote, a substantial federal question. And so they couldn't take it.

Nick Capodice: It was dismissed. None of the lawsuits in the 1970s seeking recognition of marriages between gay and lesbian couples were successful. [00:04:00] And so the next big milestone is in 1991 in Hawaii,

Melissa Wasser: The Hawaii Supreme Court had a case that said that their state's prohibition on same sex marriage might be unconstitutional.

Nick Capodice: And the case, called Baehr v Lewin in the Supreme Court of Hawaii, sent their verdict back to a lower court, asking them to demonstrate that denying marriage licenses to same sex couples, quote, furthers compelling state interests.

Jacqui Fulton: Oh, so basically they're saying prove [00:04:30] that preventing marriage, same sex couples is good for Hawaii.

Nick Capodice: Right. And they formed a commission to do just that. Two commissions, actually, the first commission failed to give a report, but the second commission reported they'd studied the benefits of marriage and public policy and they recommended Hawaii open marriage to all.

Jacqui Fulton: Why did they fail to give a report? What was up with that?

Nick Capodice: Honestly, they just couldn't get their stuff together.

Jacqui Fulton: You had one job.

Jim Obergefell: In the mid 90s, [00:05:00] there was that case making its way through the courts in Hawaii and John stepmother at the time actually said, you know, if this happens, if they make marriage a possibility in Hawaii, I'm going to take the entire family there so you guys can get married.

Jacqui Fulton: Who is that?

Jim Obergefell: I'm Jim Obergefell, named plaintiff in Obergefell v Hodges, the landmark Supreme Court marriage equality case.

Jacqui Fulton: The Obergefell?

Nick Capodice: The very same. He and his partner, John Arthur, had been together some time when this all happened in Hawaii, [00:05:30] when it seemed like marriage equality would be possible.

Jim Obergefell: Well, that never happened. And John and I talked about it and we both agreed that for us, we didn't want to just have a symbolic ceremony. We had friends who, you know, had ceremonies in Ohio and elsewhere. But for us, it just wasn't what we wanted. We wanted to marry only if it actually carried legal weight.

Jacqui Fulton: Now might be a good time to explain civil unions.

Nick Capodice: All right. There were different rules in each state regulating same [00:06:00] sex unions. But while couples all over the country would perform civil unions for family and friends, these couples did not receive the state sanctioned benefits of marriage. And we're talking inheritance rights, huge tax benefits, insurance, Social Security. And Jim and John wanted those benefits.

Jacqui Fulton: Yeah, of course they did. Like everybody else,

Nick Capodice: This court case in Hawaii caused a backlash against marriage equality and it brought the topic into the national spotlight. [00:06:30] Battle lines were drawn. States hastily passed legislation mandating marriage is something between one man and one woman,

Melissa Wasser: Not just in Hawaii. It was also at the federal level, which ended up with the enactment of the Defense of Marriage Act, or DOMA, and that was by signed into law by President Bill Clinton in 1996.

John Kerry: Obviously, the results of this bill will not be to preserve anything but will serve to attack a group of people [00:07:00] out of various motives and rationales.

Robert Byrd: Humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength and help of human.

Nick Capodice: That was Democratic Senator John Kerry speaking against the Defense of Marriage Act and also Democratic Senator Robert Byrd speaking for it. It passed resoundingly in the House and the Senate with support from both parties. Only [00:07:30] 14 senators voted against it

Melissa Wasser: The Defense of Marriage Act, or DOMA, was a federal law that defined marriage for federal purposes as the union of one man and one woman. So that meant anything that federal benefits dealt with. So insurance benefits, Social Security, survivor benefits, filing a joint tax return if you were married for those purposes, it was between one man and one woman. And so that was Section three of DOMA. Section two [00:08:00] of DOMA was that states were allowed to refuse recognition of same sex marriages that were granted from other states and other jurisdictions or think like Canada or if other states had same sex marriage laws, it wouldn't transfer state to state like other benefits did.

Nick Capodice: In the decade after Hawaii's ruling, many states, including Hawaii itself, passed constitutional amendments and legislation banning marriage for all but opposite sex couples. And one of the most famous [00:08:30] was Prop eight in California.

The streets of Castro in market were full of people celebrating Barack Obama's win. Their party turned somber, though, when they realized that Proposition eight was headed for victory. Supporters of gay marriage tell us they thought they'd reached a mountaintop...

Nick Capodice: California legalized same sex marriage in May of 2008. And thousands of couples got married. But the backlash was swift. In California, they put a proposition, an initiative that the people vote on on the [00:09:00] ballot, that November, which banned marriage within same sex couples. And financial support for Prop eight poured in from out of state, primarily from religious institutions like the Roman Catholic Church and the Knights of Columbus. And the vast majority of donations, as well as volunteers, came from the Mormon community. And Prop eight passed.

Jacqui Fulton: Yeah, I remember that was heartbreaking. A lot of couples who had already gotten married, didn't they have to have their marriages annulled?

Nick Capodice: No, they [00:09:30] did not have to have their marriages annulled because as soon as the legislation passed, a trio of cases went to the California Supreme Court to argue that Prop eight was unconstitutional because it took away people's fundamental rights. And the court ruled that Prop eight was constitutional, but those 18000 marriages remained legally valid.

Jacqui Fulton: Interesting. Hmm. Were there any gains for those fighting for marriage equality in the wake of all this?

Nick Capodice: There [00:10:00] were a few. Notably in 2004, Massachusetts was the first state to license and recognize marriages between same sex couples. Other states followed, including New York. Which brings us to our next milestone, United States v. Windsor.

Edie Windsor: I wanted to tell you what marriage meant to me. It's kind of crazy how we lived together for 40 years. We were engaged with with the circle that I wear as a pin because I wouldn't wear a ring because I was still in the closet. I [00:10:30] am today an out lesbian. OK, who just sued the United States of America, which is kind of overwhelming for me...

Melissa Wasser: Edie Windsor and Thea Spyer were married in New York State in 2008. Thea died in 2009 and left her entire estate to Edie Windsor. When a spouse dies, their surviving spouse gets to claim a tax exemption. Where I believe you get an unlimited spousal deduction and [00:11:00] you pay no federal estate tax on what you're Spouse leaves you. She wanted to claim that exemption, but was barred by Section three of DOMA, which again dealt with because marriage is between one man and one woman at the federal level, you don't get any benefits. So she had to pay those three hundred and sixty three thousand and fifty three dollars. By the time the case ended, it was over six hundred thirty eight thousand dollars in estate [00:11:30] tax payments that the government had to pay back. But she sued the federal government because if you think about it, what is it? Had it been, Edie, a man you know, then she would have qualified for that unlimited spousal deduction.

Nick Capodice: Melissa was in the courtroom when US v. Windsor was argued and when the opinion was read and the court ruled five to four that the Defense of Marriage Act imposes a, quote, disadvantage, a separate status, and so a stigma to [00:12:00] LGBTQ married couples and thus violated the due process protections of the Fifth Amendment. And so DOMA is struck down

Speaker5: By seeking to displace this protection and treating those persons as living in marriage is less respected than others. Section three of DOMA is in violation of the Fifth Amendment.

Jacqui Fulton: An honest civil clarification here, you said due process in the Fifth Amendment. I thought due process was the Fourteenth Amendment.

Nick Capodice: I had the same question.

Melissa Wasser: And I know listeners are [00:12:30] going to hear there's two due process clauses. What does that mean? Which I totally I totally get the Fifth Amendment binds the federal government. The Fourteenth Amendment binds the states.

Jacqui Fulton: Ok, got it.

Nick Capodice: So what we then have are 50 states each with their own rules when it comes to marriage equality.

Jacqui Fulton: Ok, so how do we get to the national decision on marriage equality?

Nick Capodice: We get there from that favorite dance move of the Supreme Court, the circuit court split.

Melissa Wasser: And [00:13:00] so a circuit split is what happens when one circuit rules one way and another circuit rules the opposite way, and now you have, based on where you're living in the country, in the same United States of America, the law is two different things. So what happened with Obergefell and those associated cases where there were positive rulings towards marriage equality, saying that state level bans were unconstitutional in the 4th, the 7th, the 9th and the 10th Circuit. But if you lived in Ohio, [00:13:30] Kentucky, Michigan, Tennessee, the bans were constitutional. And so that leaves a circuit split. The only people who can rectify a circuit split are the justices of the United States Supreme Court.

Nick Capodice: So the court agrees to hear four cases, one from each state and the Sixth Circuit. And that is how we get to Jim Obergefell

Jim Obergefell: So the first time I met John, honestly, he scared the daylights out of me because I was still a high school teacher. [00:14:00] I was still closeted. And I went out with a friend of mine and we went to a bar near the University of Cincinnati where we had both graduated. So sitting at the bar was his friend, John.

Nick Capodice: It wasn't the first time they met that they got together, nor the second, but the third time they met each other, they decided to be a couple.

Jim Obergefell: And John and I joked that for us, it wasn't love at first sight. It was love at first sight. We became a couple. John tried to talk me out of it, said, Jim, I'm a mess. I've dated a lot of men. [00:14:30] It never ended well, but I wouldn't be dissuaded. I wouldn't be talked out of it. So we became a couple, you know, that Hawaii case, which did not turn out the way we wanted it to. So that was when all of those state level DOMAs started happening and also, you know, the federal level Defense and Defense of Marriage Act. So we just thought marriage is forever going to be something we were denied the ability to do. We just thought it was forever out of our reach.

Nick Capodice: And tragically, [00:15:00] in 2011, John was diagnosed with ALS. And Jim devoted his life to taking care of him.

Jim Obergefell: June 26, 2013 I was standing next to John's bed because at the time he was at home hospice care, and I was a full time caregiver. Well, other than like four hours a week when the hospice nurses visited. So when we heard that the Supreme Court struck down the Defense of Marriage Act, I did. I just leaned over, hugged him and kissed him and said, let's get married. And luckily [00:15:30] he said, yes, but, you know, here we were living in Ohio, which had its own state level version of the Defense of Marriage Act, which meant I could not just put him in his wheelchair and take them six blocks to the county courthouse for a marriage license. So we had to figure out where do we go, where do I take this dying man to do something millions of people simply take for granted?

Nick Capodice: Jim and John considered several cities in which they could get married, but they were all long drives away, severely uncomfortable for John and his wheelchair. [00:16:00] But a friend of theirs suggested Maryland because Maryland was the only state that allowed just one member of a couple to apply for the marriage license, which meant John only had to travel for the ceremony itself.

Jim Obergefell: We also knew who was going to officiate because years before John's aunt Paulette had told us that in her opinion, we represented marriage better than any other couple she knew, and she is well wanted us to be able to marry one day. So she was more optimistic than we were, [00:16:30] I guess, because at Paulette, her nickname is Aunt Tootie, went to the Internet where she clicked the ordained me button because she wanted to be able to officiate if we ever had the opportunity. So after I proposed to John, I called Aunt Tootie and said, Aunt Tootie, do you remember the promise you made, the offer you made to officiate, does that still stand? And of course, Aunt Tootie said, absolutely, Jim. You tell me when and where I will be there.

Nick Capodice: And because of John's condition, they booked a medical jet to get to Baltimore [00:17:00] Airport

Jim Obergefell: And we landed, parked on the tarmac. And got married. I got to take John's hand and we got to say I thee wed. I do. And it really was the happiest moment of our lives.

Nick Capodice: And shortly after their wedding, a lawyer friend of a friend of Jim and John's, Al Gerstein asked to meet with them.

Jim Obergefell: So on Tuesday, five days after we got married, Al came to our home. And during that conversation, he pulled [00:17:30] out that piece of paper that he had searched his files for. And it was a blank Ohio death certificate. And he said, now, my guess is you haven't really thought about this because why would you be thinking about John's death certificate when you just got married? But you guys, do you really get it? You understand that because of Ohio's Defense of Marriage Act, when John dies, his last official record as a person will be wrong. Ohio will say he's unmarried. And Jim, they're not going to list your name as his surviving spouse.

Nick Capodice: Jim went to court and he sued [00:18:00] eight days after their wedding.

Jacqui Fulton: Who was he suing?

Nick Capodice: Initially, he sued three parties, Governor John Kasich, Attorney General Mike DeWine and the city of Cincinnati itself, as these are the three parties involved with death certificates.

Jacqui Fulton: But they were married. Right. And the state of Ohio refused to recognize that marriage.

Nick Capodice: It did. And this was at the heart of their argument.

Jim Obergefell: Our legal argument was, in my opinion, so simple, so clear, so obvious, because [00:18:30] in Ohio, first cousins cannot get a marriage license. In Ohio, an underage couple cannot get a marriage license. However, if they're in another state, that that will issue marriage license to first cousins or underage couples. And they get married in that state as soon as they cross the border into Ohio. Ohio immediately says your marriage exists. You get all of the rights, all of the protections, all of the responsibilities of a married couple, even though your marriage is one that cannot be entered into in Ohio. [00:19:00] So our legal argument was Ohio. You're creating separate classes of people by recognizing some out-of-state marriages, but not others.

Nick Capodice: At the beginning of the hearing, the Cincinnati city solicitors stood up in the courtroom and said, we don't want anything to do with this. John and Jim's marriage should be recognized.

Jacqui Fulton: Wow.

Jim Obergefell: And at five o'clock that day, July 22nd, we won.

Jacqui Fulton: They won?

Nick Capodice: They did.

Jacqui Fulton: But if they [00:19:30] won in Ohio, how did their case get up to the Supreme Court?

Nick Capodice: Well, when John died and it came time to fill out that death certificate, the state had an opportunity to appeal, which it did. And so we get to the Supreme Court, four cases combined into one each with unique circumstances. And since Jim in John's case, had the lowest docket number, the Supreme Court case is to heretofore referred to as Oberg, F.L. v. Hodges.

Jacqui Fulton: Who is Hodges?

Nick Capodice: Yeah, this is interesting. Jim [00:20:00] told me that neither Governor Kasich or Attorney Devine wanted their name attached to the case. So the only respondent was the director of the Ohio Department of Health, Rick Hodges. And as a quick side story, sometime after the decision, a friend of Jim's asked if he wanted to meet Rick Hodges. And Jim was like,

Jim Obergefell: I don't know, Elena, do I? Because, you know, in my mind, even though I'd always thought he's he's just a name. He's just a fall guy, I had no idea. I had no no knowledge of this man, no clue [00:20:30] what he really thought. So we met and we are now close friends.

Nick Capodice: Rick Hodges wasn't even remotely involved with the case and supported rights for LGBTQ plus couples

Jacqui Fulton: Getting back to the case. What were the arguments in court?

Nick Capodice: Here's Melissa again

Melissa Wasser: When the cases were consolidated, the court determined what the legal questions were going to be. They had two. The first question was, does the Fourteenth Amendment require a state to license a marriage [00:21:00] between two people of the same sex? The second question, and only the Obergefell case, the other three cases dealt with the licensure of marriage. The Obergefell case was a little different because it was asking the state to recognize a marriage that was not performed in that state. So the second legal question is, does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed [00:21:30] and performed out of state?

Jacqui Fulton: It seems that whenever we're exploring civil rights cases in the Supreme Court, the Fourteenth Amendment, dealing with equal protection and due process for states gets brought up.

Nick Capodice: Yeah, and this time there's another constitutional issue. And this is exclusively related to Jim and John's case. It's Article four of the Constitution that something called the full faith and credit clause

Advocate: Of the 14th Amendment does not require states with traditional marriage laws to recognize marriages from other states between two [00:22:00] persons of the same sex.

Justice Scalia: What about Article four? I'm so glad to be able to quote a portion of the Constitution that actually seems to be relevant. Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. Now, why doesn't that apply?

Nick Capodice: I asked Jim, who was in court during the arguments, what he remembered, and he said that two arguments stood out.

Jim Obergefell: One of the justices brought [00:22:30] up the fact that in ancient Greece, based on what we know about Greek civilization, same sex relations were OK. But there's no evidence that that same sex marriage was allowed. Well, why not? Why not? Why do you think that is? And Mary Bonauto, who did the arguments for the right to marry, she said, Your Honor, I I'm in no place to even guess what ancient Greek philosophers thought or believed. It was just such a ridiculous argument. Who cares what [00:23:00] happened in ancient Greece? But then the other one, which I love again, I forget which justice this was brought up, that tired argument that, you know, those of us who were proponents of marriage equality, we were changing the definition of marriage because marriage had meant the same thing for millennia. And Ruth Bader Ginsburg jumped right in and said, no, I'm sorry. We already have changed the definition of marriage because women are no longer the property [00:23:30] of their husbands.

Nick Capodice: Also, Jim remembers this happening.

Jim Obergefell: There was somebody in the public seats who started screaming that we were all going to hell or things like that at the start, and you could hear him as they're dragging him down the hallway, even though the courtroom doors were closed, he had quite the volume,

Advocate: Just as if the court is ready. We're ready. OK.

Justice Scalia: That was rather refreshing, [00:24:00] actually.

Jacqui Fulton: Ok, so that's the anti-marriage equality folks, what are the arguments for it?

Nick Capodice: I think the argument was best summarized in the opening line of the argument from Jim and John's advocate, Mary Bonauto.

Mary Bonuato: Mr. Chief Justice, may it please the court, the intimate and committed relationships of same sex couples, just like those of heterosexual couples, provide [00:24:30] mutual support and are the foundation of family life in our society.

Nick Capodice: The arguments in court, where at the end of April 2015 and as the court reads decisions on Mondays in May and June, Jim started going to D.C. every single week.

Jim Obergefell: I knew I had to be in the courtroom to hear the decision. It I couldn't imagine not being there to hear what the highest court in the land said. You know, I also have to be honest, Nick, from the very start, like we're we're winning this. We're on the right side.

Nick Capodice: And as is often the case, [00:25:00] the Supreme Court has a lot of decisions to read. So they were adding additional days.

Jim Obergefell: But then we were outside the courtroom on the 22nd when someone came running out to say, well, they just added Thursday, June 25th, as a decision day. A few minutes later, someone else came running out and said, well, they just added Friday, June 26th as decision day. And I was there. I was there other attorneys on the case, plaintiffs. And we all looked at each other and said, it's going to be Friday, June twenty sixth. And [00:25:30] the reason we thought that was that's an important date for LGBTQ rights at the Supreme Court. United States versus Windsor, which struck down DOMA, came out on June 26, 2013. Lawrence versus Texas, which struck down anti sodomy laws, came out on June 26.

Nick Capodice: The decision was five four in favor of Obergefell. Justice Anthony Kennedy delivered the opinion. The decision states that both the due process clause and the equal protection clause of the 14th Amendment [00:26:00] guarantee the right of same sex couples to marry

Justice Kennedy: In forming the marital union. Two people become something greater than they once were and would misunderstand petitioners to say that they disrespect. Or diminish the idea of marriage in these cases, they're pleased that they do respect it, they respect it so deeply, they seek to find its fulfillment for themselves. They ask for equal dignity in the eyes of the law. And the Constitution grants them that right. For these reasons and others set out, in my opinion...

Jim Obergefell: And I burst [00:26:30] into tears. You could hear people around the courtroom sobbing. Al told me later because he was in the courtroom as well. He told me later that he has never seen so many attorneys crying in a courtroom. And, you know, of course, not surprising. My first thought was, John, I wish you were here. I wish you could experience this. I wish you knew that our marriage can never be erased. I wish you could know that. I will always have the [00:27:00] legal right to call you, to call myself your widower, to call You my husband and I miss him desperately. Then I also had this amazing realization that for the first time in my life as an out gay man, I felt more like an equal American than I ever had before.

Nick Capodice: And there were four separate dissents, one for each dissenting justice, and [00:27:30] in something rather rare, each Supreme Court justice usually does this like once a year, for the first time in his tenure on the court, Chief Justice Roberts read his dissent from the bench. Jim walked out of the courtroom. It was bedlam, celebration everywhere. He was being interviewed by CNN.

Jim Obergefell: And I finished that interview and I turned around. I'm looking at the courthouse and someone hands me my phone. He says, Jim, you have a phone call?

Melissa Wasser: [00:28:00]

Nick Capodice:

Jim Obergefell: And here I am in the midst of this joyful crowd having a conversation on speaker with President Obama.

Jacqui Fulton: Yeah, I remember seeing on the news tons of people getting married immediately. My friends were so excited. Some of them were crying and a lot of them made wedding plans that day. [00:28:30]

Nick Capodice: Yeah. And I just got some data on this. In 2019, the Census Bureau released an estimation that there are right now nearly one million Americans in same sex marriages. And that's one of the reasons, Jim says that regardless of the structure and ideology of the Supreme Court, this decision will last forever. It's hard for the Supreme Court to take rights away from people that it has previously granted. But he also says that the work's not done.

Jim Obergefell: I like to say, yes, [00:29:00] we have the right to get married in all 50 states, but we don't enjoy marriage equality. We're far from enjoying marriage equality. I mean, we still have businesses, photographers, bakers, event venues who don't don't want to even throw their business open to the public. If you happen to be a same sex couple, they they want the right to say that their religious beliefs are more important than someone else's civil and human rights. And there are still court officials [00:29:30] and judges who have stopped doing all marriages because they don't want to officiate marriages. For two people of the same sex.

Jacqui Fulton: Nick, it's a tremendous victory. But I just want to point out that this story doesn't have a happy ending. Just like how DOMA passed after the Hawaii case. There was a national backlash in the wake of the Obama decision, and this is specifically aimed at transgender legislation.

Nick Capodice: Jim told me about the recent Supreme Court case, Bostock v. Clayton [00:30:00] County, which ruled that an employer who fired someone for being gay or transgender violates the Civil Rights Act of 1964. But that decision was six to three, and it doesn't apply to everyone.

Jim Obergefell: But that doesn't apply to every job. That doesn't apply to everyone. So we still aren't equal in our job. So if you if you're married, you have a family and you lose your job because someone doesn't like you solely because you're LGBTQ plus. Well, that certainly isn't marriage equality in 2021.

Nick Capodice: There have been so far over [00:30:30] 100 bills introduced to restrict trans rights.

Jacqui Fulton: Yeah, I've actually been fired for being queer and it was devastating. There's nothing I could do about it. And this is something we see in every civil rights case. You can change legislation, but you can't change people's attitudes.

Nick Capodice: And, uh, that's it, I guess, not [00:31:00] just for this case, but for our civil rights and the Supreme Court. We hope you enjoyed it and we hope you follow us on Apple podcasts or Spotify or wherever you get your podcasts to keep finding out about how our government works. And make sure to visit our Web site, Civics101podcast.org, where you can get transcripts, teacher created lesson plans, activities and so much more. We've thanked her before during the series, but I'm going to do it again. These Supreme Court episodes would not have been possible without the tireless help [00:31:30] of Rebecca Fanning from the U.S. courts. She got such a tremendous number of judges to talk to us about these cases. It made our jobs so much easier. And you can check out any of their great judicial resources at U.S. courts dot gov. This episode was produced by me Nick Capodice with help from Jacqui Fulton, Hannah McCarthy, Mitch Scacci, and Christina Phillips. Erika Janik is our executive producer. Special thanks to person A, Fendall Fulton. Music in this episode from Blue Dot S [00:32:00]essions Cycle Hiccups, Randy Butternubs, Scott Gratton, Ikimashu Oi, and the wonderous Chris Zabriskie.

Jacqui Fulton: Also, I'd like to extend a special thanks to Jim Obergefell for.

Fendall Fulton: His and John's tireless efforts and all the others that put everything on the line to make it possible.

Jacqui Fulton: So we can be married.

Nick Capodice: All right.


 
 

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Civil Rights: Loving v Virginia

Mildred and Richard Loving were jailed and banished for marrying in 1958. Nearly a decade later, their Supreme Court case changed the meaning of marriage equality in the United States — decriminalizing their own marriage while they were at it. This is the story of Loving.

Our guests are Magistrate Judge Zia Faruqui of the U.S. District Court for Washington, D.C. and Farrah Parkes and Brad Linder of The Loving Project.

Click here for a Graphic Organizer for students to fill out while listening to the episode

 

Episode Segments


Transcript

Loving v Virginia_DRAFT3.mp3

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

Mildred Loving: [00:00:05] And if if we do win we will be helping a lot of people, and I knew we have -- I knew we have some enemies, but we have some friends, too.

Hannah McCarthy: [00:00:16] Richard and Mildred Loving were newlyweds.

Mildred Loving: [00:00:19] I said I think that marrying who you want to is a right that no man should have anything to do with.

Hannah McCarthy: [00:00:24] They had known each other since they were kids. They grew up neighbors in Caroline County, Virginia.

Mildred Loving: [00:00:30] My Husband's father, he gave us a acre of land, right across the road. And that's where we're meant to build. And I'll be close to my mother and he'll be close to his family.

Hannah McCarthy: [00:00:40] They dated off and on for years before deciding to finally get married. In July of 1958 they'd been married for about five weeks. Mildred was pregnant with their first child together. At two a.m. on July 11th. The Lovings were asleep in their bed in their small home when they heard someone at the door and suddenly the front door was broken down. Police officers burst into their bedroom. They shined their flashlights into the Lovings' eyes

Richard Loving: [00:01:14] And they came one night and they knocked a couple of times. I remember before I could get up, you know, they just broke the door and come on in. And when we got up, they're standing beside the bed. With flashlights.

Mildred Loving: [00:01:28] They asked Richard, who was a woman he was sleeping with. I said I'm his wife and the sheriff said not here you're not.

Nick Capodice: [00:01:38] What what did the sheriff mean by not here you're not?

Hannah McCarthy: [00:01:42] Good question.

Hannah McCarthy: [00:01:43] This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:46] I'm Nick Capodice.

Hannah McCarthy: [00:01:47] And the answer to that is the story of Loving versus Virginia, the landmark Supreme Court case that determined whether a state could criminalize the act of marriage between a person of color and a white person, which is exactly the kind of couple Mildred and Richard Loving were.

Judge Zia Faruqui: [00:02:05] You have Richard Loving and Mildred Loving, and they can't get married in Virginia.

Hannah McCarthy: [00:02:10] This is Magistrate Judge Zia Faruqui of the District Court of Washington, D.C.

Judge Zia Faruqui: [00:02:15] They secretly go right to the Las Vegas, apparently of the East Coast, Washington, D.C., and get married. I can only imagine by an Elvis impersonator. And so they get married in the quiet of night and then returned to Virginia.

Mildred Loving: [00:02:29] You know, we went to Washington to be married. And I guess that's why, you know, we went there. People had been mixing all the time. So I didn't know any different. I didn't know there was a law against it, you know, and white and colored went to school different and things like that. They couldn't go in the same restaurant. And I knew that. But I didn't realize how bad it was until we got married.

Hannah McCarthy: [00:03:00] By the way, that is the voice of Mildred loving herself from an interview in the late sixties.

Nick Capodice: [00:03:05] And when Mildred says she didn't know how bad it was, she means until officers burst into her home and told her she was not legally Richard's wife.

Hannah McCarthy: [00:03:13] Not only you're not his wife, he's not your husband, but you're arrested for committing a crime. Richard and Mildred were living in violation of the Virginia State Racial Integrity Act of 1924.

Judge Zia Faruqui: [00:03:26] The Virginia statute has said that, you know, the punishment, you know, miscegenation is the term for it, which no one obviously ever says now or probably even then because it's such a mouthful, but that the statute says punishment for marriage. If any white person intermarriages with a colored person or any colored person, intermarriage with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one year and not more than five years.

Nick Capodice: [00:03:52] Hannah can I clarify something. It sounds like this law pertains specifically to people of color marrying white people, not to people of color marrying other people of color. Right. So in calling this the Racial Integrity Act, what it actually is, is a white purity act.

Hannah McCarthy: [00:04:10] Yes. The whole idea was to protect and preserve whiteness.

Judge Zia Faruqui: [00:04:14] You can be black and Hispanic person, and that would be totally OK. But you cannot be white and marry someone who is black or Hispanic and vice versa. And it has a criminal penalty. Right. So, you know, I think most people, when they hear this exist, they would think like, oh, they probably just invalidate your marriage license. Right. But this isn't that right? This isn't even a fine. This is we are going to put you in prison, imprison you for marrying someone if you are one of the two partners is white. And that's pretty severe.

Hannah McCarthy: [00:04:45] The act prevented intermarriage from happening in the state because it required that birth certificates, either to find someone is white or is quote unquote colored your only white. If for as far back as you could look in your family's history, your ancestry was white. The one exception, which is called the Pocahontas clause, allowed for one sixteenth or less of American Indian ancestry, everyone else was quote unquote colored. If an interracial couple that included a white person wanted a marriage license, that was not going to happen in Virginia. And even if you got married elsewhere, once back home, you better lay low. Still, Richard and Mildred knew of interracial couples in their own community who were left alone. Somebody had decided to make an example of them.

Richard Loving: [00:05:40] It's a lot of them down here but we're the only ones who have been bothered by it. It's a lot of the same down here.

Interviewer: [00:05:44] Is that right?

Richard Loving: [00:05:45] Yeah. Let's see, just it just some people that didn't like it they just talk, see, and started the dog rolling.

Interviewer: [00:05:53] Do you know any other couples who are in the same situation?

Richard Loving: [00:05:56] Yeah, I know some but I wouldn't like call them names.

Interviewer: [00:06:00] I just wondered if you did.

Richard Loving: [00:06:02] Yeah, I know a few.

Interviewer: [00:06:04] I wonder why they picked on you then?

Richard Loving: [00:06:08] I don't know, I'll never find out. Somebody talked.

Judge Zia Faruqui: [00:06:13] This was like a sting where they go and they were trying to catch them, you know, having adult relations in the middle in the law, I think to say inflagrante delicto. Right. And so they come in there, they have this sting, the raid, they go in there and in fact, they were just asleep and they wake them up and say, you know, you're under arrest.

Nick Capodice: [00:06:32] So what happened? Did the police really drag them out of their home in the middle of the night?

Mildred Loving: [00:06:36] And anyway they carried us to Bowling Green, locked us up and in January they had the trial and told us to leave the state for 25 years,

Nick Capodice: [00:06:47] So they're told to leave the state.

Hannah McCarthy: [00:06:48] The judge who sentenced them, Leon Bazile, commuted their one year prison sentence on the condition that they leave Virginia for 25 years.

Judge Zia Faruqui: [00:06:58] In effect, what happened is that they were banished to Washington, D.C., and that they just had to, you know, try to get their family to come visit them or not. So it's pretty disturbing.

Nick Capodice: [00:07:08] What did the Lovings do? Is this the moment when they decided to fight the ruling?

Judge Zia Faruqui: [00:07:12] They plead guilty because they're just like, again, this is just such a ludicrous, you know, proposition like, is this really worth fighting for? Because it just seems so silly. And so they're like, fine, we'll just leave Virginia and move to D.C., which is a D.C. resident who is in a mixed race marriage. I was very appreciative to see, you know, my forbearers from Washington, D.C. were already ahead of the curve.

Hannah McCarthy: [00:07:35] The Lovings leave behind their family and friends and move to Washington, D.C., the place where they were married. But it's expensive and it's a far cry from the expansive countryside where they had lived their whole lives.

Mildred Loving: [00:07:48] The children didn't have anywhere to play. They would like being caged. And I couldn't stand it. I couldn't take it.

Hannah McCarthy: [00:07:57] They couldn't visit their family in Virginia if they went together. In fact, they were arrested a second time during a visit home.

Judge Zia Faruqui: [00:08:05] What how do they handle this and becomes expensive and sort of living in D.C. So ultimately they decide, you know, we need help and they write to Attorney General Robert Kennedy and that he apparently responded and said, yeah, you should go to the ACLU. And you know that they maybe have some attorneys that can help you litigate this. And, you know, I was a prosecutor myself for a while. I don't think I ever got myself a little in the attorney general letters of request for assistance and they referred him out. But that's, you know, amazing that and to credit to Attorney General Robert Kennedy.

Bernard Cohen: [00:08:36] Who's the date. So we can be sure that was June 20th, 1963, and they were living in Washington, D.C. at the time.

Hannah McCarthy: [00:08:42] This is Bernard Cohen, one of the ACLU lawyers who ended up taking Mildred in Richard's case. This is from footage taken the same year that the case went to court. He's reading Mildred's letter to Bobby Kennedy.

Bernard Cohen: [00:08:53] Dear sir, I am writing to you concerning a problem we have. Five years ago, my husband and I were married here in the district. We then returned to Virginia to live. My husband is white, I am part Negro and part Indian. At the time, we did not know there was a law in Virginia against mixed marriages. Therefore we were jailed and tried in a little town of Bowling Green. We were to leave the state to make our home. We have three children and cannot afford an attorney. We wrote to the attorney general. He suggested that we get in touch with you for advice. Please help us if you can hope to hear from your real soon. Yours truly, Mr. and Mrs. Richard Loving. And it was that simple letter that got us into this not so simple case.

Nick Capodice: [00:09:38] I would imagine that every Supreme Court case is not so simple. So is the Loving's case somehow more so?

Judge Zia Faruqui: [00:09:45] It's a kind of a hard position to go back and vacate something that someone does that was knowing intelligent and voluntary. Right. Like they chose to plead guilty. And so withdrawing your guilty plea are trying to essentially vacated. That is procedurally pretty difficult.

Hannah McCarthy: [00:10:01] It's a lot of effort on the part of the ACLU lawyers, but they eventually figure out a way to get the Lovings case moving through the courts. They ask the original judge, Judge Bazile, to vacate, basically undo the conviction that ordered the Lovings to leave the state for 25 years. But Bazile doesn't do that.

Judge Zia Faruqui: [00:10:20] Pretty you know, disturbingly, he issues his opinion and he says the judge Bazile says that, quote, Almighty God created the races, white, black, yellow, Malay and red. And he placed them on separate continents. And but for the interference with this arrangement, there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to end quote. And so obviously, this judge was not sympathetic to the Loving's claims. And so they then appeal their case. And it goes to the Virginia Supreme Court.

Hannah McCarthy: [00:10:55] The Lovings lawyers Philip Hirschkop and Bernard Cohen brainstorm a game plan. Are they going for irreparable injury, for denial of basic rights?

Bernard Cohen: [00:11:06] What are the things that can only be done together by man and wife that they can do in Virginia? They can't come visit her parents together.

Law team: [00:11:14] or their friends.

Phillip Hirschkop: [00:11:16] Children, can't live with them and go to school.

Law team: [00:11:18] Breaking up the family ought to be irreparable injury, if anything.

Phillip Hirschkop: [00:11:21] This is strictly a segregation problem. And the Supreme Supreme Court has said time and again the federal courts have the right to protect federal rights, but it's a federal right to talk about that.

Bernard Cohen: [00:11:33] Let's go back to the office and get thing on paper.

Hannah McCarthy: [00:11:35] Ultimately, the Lovings lawyers argue that because Plessy versus Ferguson and separate but equal has been overturned in Brown vs. Board of Education, because due process of law and equal protection under the 14th Amendment in race cases has been upheld. The Virginia statute banning interracial marriage between white people and people of color is unconstitutional.

Judge Zia Faruqui: [00:11:56] So you would think in this instance you're going to get a good decision from the Virginia Supreme Court, but certainly that is not what happened. The Virginia Supreme Court says the ban is still appropriate.

Hannah McCarthy: [00:12:06] Basically, the court says that regardless of Plessy vs. Ferguson being overturned, the state can still use its powers to protect its citizens. Now, just because it can't use those powers to enforce school segregation, that doesn't mean it can't use them against interracial marriage because interracial marriage is considered bad for certain states citizens.

Judge Zia Faruqui: [00:12:29] There was the underpinnings of the question in terms of banning interracial marriage came from a, quote, legislative determination that there was a great deal of evidence. Now, on the podcast, people can't see, but I'm super passive aggressively putting evidence and air quotes, but quote unquote, evidence to support that intermarriage between people of color and white people is, quote, incompatible with the general welfare and therefore a proper subject for regulation under police power. And so this is the way they came to and said, yeah, Plessy said you couldn't use police power to separate students in a school. But that doesn't mean that you can't use police power to still do things to protect the community, to make sure that on racial lines it just means you can't do it for school.

Nick Capodice: [00:13:15] And presumably now that it's been denied in a state supreme court, this case can finally be appealed to the Supreme Court of the United States.

SCOTUS archival: [00:13:22] Number 395, Richard Perry Loving et al versus Virginia.

Hannah McCarthy: [00:13:34] The Supreme Court takes the case.

Phillip Hirschkop: [00:13:36] Mr. Chief Justice, associate justice may please the court. We will divide the argument accordingly. I will handle the equal protection argument as we view it. Mr. Cohen argued the due process argument. You have before you today we consider the most odious of the segregation laws and the slavery laws and our view of this law. We hope to clearly show that that is slavery law.

Hannah McCarthy: [00:14:03] Cohen and Hirschkop argue that the Virginia Racial Integrity Act violates the equal protection clause of the 14th Amendment, which is made a little simpler by the fact that that is exactly what Chief Justice Earl Warren asked them to do.

Judge Zia Faruqui: [00:14:19] We like to call this in the law a quote, a leading question a little bit. And so here's what question is. Whether a statutory scheme adopted by the state of Virginia to prevent marriages between persons solely on the basis of racial classification violates the equal protection and due process clause, the 14th Amendment. Yeah, that that's pretty self-evident. So, you know, when it's teed up like that, when you get cert, you're at the Warren Court, I think you're feeling pretty good.

Nick Capodice: [00:14:45] And what's the argument coming from Virginia?

Judge Zia Faruqui: [00:14:47] So this is a book by Dr. Albert Gordon, and he talked about the negative effects of interracial marriage on society, calling him, quote, undesirable and saying that they, quote, hold no promise for a bright and happy future for mankind, unquote. And so there definitely was this idea that the marriage itself but then always right. Like this is the same thing. And always in marriage equality, it's the same thing, then the same things. Later idea ideas like, oh, the poor children who will be victimized by this, you know, what's going to happen to them. And so the Virginia lawyers talk about this in their briefs to the U.S. Supreme Court.

Hannah McCarthy: [00:15:21] Lawyer Robert McIlwaine argued for the state of Virginia and his argument swirls around the same principle that the Virginia Supreme Court insisted upon. That the state could protect its citizens and because interracial marriage resulted in negative home environments, the state ought to prevent those marriages from happening.

Robert McIlwaine: [00:15:41] Intermarried families are subjected to much greater pressures and problems. It is not infrequent that the children of intermarried parents are referred to not merely as the children of intermarried parents, but as the victims of intermarried parents and as the models of intermarriage.

Hannah McCarthy: [00:16:01] It also argued, by the way, that because both the person of color and the white person in these cases was punished, it was equal punishment and so not unequal.

Robert McIlwaine: [00:16:11] The prohibition works both ways. You say a man that is prohibited from marrying into another race feels inferior. The prohibition also prohibits a white person to marry a colored person. [unintelligible]

Hannah McCarthy: [00:16:23] And I want to point out Cohen and Hirschkop hammer home not to the fact that this is a violation of equal protection under the law, not just the fact that the Virginia law violated the due process clause of the 14th Amendment, but also the fact that Richard and Mildred Loving loved each other.

Bernard Cohen: [00:16:39] And that is the right of Richard and Mildred Loving to wake up in the morning or to go to sleep at night knowing that the sheriff will not be knocking on their door or shining a light in their face in the privacy of their bedroom or illicit cohabitation. The Lovings have the right to go to sleep at night knowing that should not should they not awake in the morning, their children would have the right to inherit from them under intestacy. They have the right to be secure in knowing that if they go to sleep and do not wake up in the morning, that one of them, a survivor of them, has the right to Social Security benefits. All of these are denied to them. As I started to say before, no matter how we articulate this, no matter which theory of the due process clause or which emphasis we attach to, no one can articulate it better than Richard Loving. When he said to me, Mr. Cohen, tell the court I love my wife and it is just unfair that I can't live with her in Virginia.

Nick Capodice: [00:17:44] I have to imagine standing before the Warren Court, the same court that had just declared racial segregation in schools unconstitutional. Virginia had its work cut out for them, and these ACLU lawyers were in pretty good shape arguing against this racist principle before Earl Warren. So what did the court end up ruling?

Judge Zia Faruqui: [00:18:04] The Supreme Court says the Warren Court says the reasoning behind them is, quote, obviously an endorsement of the doctrine of white supremacy, close quote. Right. So there you go. You know, you could have written the opinion in like one page. And, you know, and I think Justice Warren is doing that and he's like, let's just let's call this what it is. The court ultimately says, like, look, we're not looking at this after analysis of what happens afterwards and who's harmed does not harm. We're looking at the beginning part. We don't need to get in to see who's better. This is just wrong. It's white supremacy and it's it it is against the equal protection clause.

Hannah McCarthy: [00:18:36] And that could be enough. Right. But Earl Warren doesn't stop there.

Judge Zia Faruqui: [00:18:40] But what's super interesting is that they have at the end of the session, like put a put a rainbow start asterisks next to this. They make a due process. Also, rights to the Fourteenth Amendment has is two parts. You have to have equal protection law. But there's also due process. When you think of that normally is like I have to be able to have a you know, come to court. I have to have a judge there. I need to have my, you know, a lawyer there and things like that. But the court does say very briefly, you know, hey, marriage is a civil right and the Lovings are being denied of this freedom because they are being denied of liberty without due process of law.

Nick Capodice: [00:19:12] Ok, so is the court saying antimiscegenation laws, laws banning interracial marriage are unconstitutional, full stop?

Hannah McCarthy: [00:19:19] That's right. Now, at the time this case was argued, 16 states had laws banning the marriage of a white person to a person of color. The opinion written by Warren calls these laws, quote, odious to a free people and said the Virginia Racial Integrity Act had no legitimate purpose, quote, independent of invidious racial discrimination.

Nick Capodice: [00:19:40] Hannah How long did it take for all states to eliminate antimiscegenation practices?

Hannah McCarthy: [00:19:46] The last state to eliminate antimiscegenation law from their books was Alabama in 2000. Now, law is not the same thing as practice. Still, it took over 30 years to scrub this form of white supremacy from all of the books.

Judge Zia Faruqui: [00:20:05] It is shocking that it took to the year 2000 for Alabama to become the last state to adopt that decision, and that what's even more shocking is it was a ballot initiative, right? Like that. People had to go out and vote as to whether or not it was OK for me to marry my wife.

Hannah McCarthy: [00:20:22] Judge Faruqui pointed out that antimiscegenation law probably was not enforced, even in states that still had laws like that on the books. Terms of implementation, it wasn't like eliminating segregation in schools. There were no tactical bussing questions to address, no public education funding to reappropriate. This was about a personal decision between two people

Judge Zia Faruqui: [00:20:45] Not to be cheesy, but black and white. Right. Like you just can't get married. And so it was, I think, a lot easier to implement, certainly, than Brown or something like that. But you see that it there were, you know, the the poison or the animus behind it. It's still lingered and went on.

Nick Capodice: [00:21:05] Yeah, to that point, Hannah, that the lingering on and not just the poison, but the positive legacy as well, how did Loving v. Virginia change life in the U.S.?

Hannah McCarthy: [00:21:16] Well, I feel like a testament to Loving's legacy really shines. In this podcast, I discovered it's called The Loving Project. It was made by a married couple, Farah Parks and Brad Linder, put together in twenty seventeen.

Farrah Parkes: [00:21:30] So Brad and I got married in between the summer between my two years of grad school and that fall in my family law and social policy, I learned about Loving v. Virginia and was just struck by how recent it was.

Hannah McCarthy: [00:21:45] Farrah and Brad are an interracial couple and it occurred to them that they could just interview other interracial couples about being together, that that was the best way to commemorate the decision that allowed certain interracial couples to get married in the first place. And they interviewed couples who had been married for a few months and couples who had been married for 50 years. So in terms of what life might have been like for an interracial couple immediately after loving

Farrah Parkes: [00:22:12] The couple that got married the year after, loving and, you know, met in the South, he was at Vanderbilt, she was at Fisk. And and to think of the bravery they had to have shown and Florence, you know, pretty fierce, but it's like a big teddy bear, you know. And he tells a story about the time when he bought a gun because he could see people following them on the highway. And, you know, Laura Knoy found out later and was like, we're not doing that, just the fact that they persevered through all of that and also just the fact that they were forced into these, you know, sort of hard decisions like buying and carrying a gun. You know, this really just sweet, affable guy sitting in front of you being like, well, I was going to get a gun to protect my life and my family. You know, it was just so powerful to hear that and and also to just have seen them come out on the other side and just, you know, be happy and successful in their kids and grandkids. And they're my heroes.

Nick Capodice: [00:23:19] So for this couple who are only able to marry because of Loving v. Virginia, that case is a seminal moment in their lives. And they lived through what that decision and other civil rights decisions could not do, which is to magically eliminate racism and its threats in the U.S.. But I want to know about newly married interracial couples. Did they think about Loving what it did or what it didn't do?

Farrah Parkes: [00:23:43] It was definitely a bigger deal for the older couples because they had just been so much sentir about, you know, social center as well as, you know, the loving decision being recent. But in terms of anybody that got married, you know, like after 1980 or so, I'm not sure it was there was necessarily necessarily a variation. I do think that the gay couples like because they because same sex marriage was so new, loving was a bigger thing in their minds because they also recognized, you know, the ways that this marriage hadn't been legal nationwide until 2015. You know, that there were precedents for that.

Hannah McCarthy: [00:24:26] And as far as walking through life as an interracial couple and confronting racism together, Farrah and Brad told me that, of course, that did come up in a lot of interviews.

Brad Linder: [00:24:37] People did sort of learn how to walk through the world together as a couple and deal with the fact that they might not be always seen the same way by other people.

Farrah Parkes: [00:24:49] Yeah. And just sort of developing, you know, a greater understanding of racial dynamics in this country. Not that, you know, they are the white partner is completely, you know, cleansed of all, you know, sort of the racism that everybody walks around in and just inherent everywhere but that they develop a better understanding of what it is that people of color go through. And then also just, you know, the sharing of different cultural traditions.

Hannah McCarthy: [00:25:18] And for Ferrah, part of the reason she wanted to commemorate this case is because it is so recent, because it was a decision made by flesh and blood, men in black robes, men who can change their minds.

Farrah Parkes: [00:25:33] It's scary, actually, I think, to realize that it was so recent. Like if you had asked me before I learned about loving, if there was a time when when people of different races could marry, I would have said yes. But if you had asked me to guess when that ended, I probably would have guessed a lot earlier than 1967 and the fact that it was so. You know, tenuous I mean, you know, the Supreme Court, you know, it is the law of the land, but it's still, you know, the courts can change and and judges change. And so there's also the sense that, you know, these things could change. And it's not sort of enshrined into it's not in the constitution. Right. And it's only in certain states laws. So I think it's scary to think about how. Some people, humanity and some people's rights are really being held on by a thread,

Nick Capodice: [00:26:41] And this brings me, Hannah, to the question we always ask why do we talk about the Supreme Court cases? Why are they important to return to or to celebrate as fair? And Brad did. And I think it's in part because there are moral beings at their core, people who made a decision to preserve a right. And people could make a decision to dismantle that right as well, but either way, the reason they come to that decision is in part based on their being flesh and blood, changeable human beings who see humanity and others. So we talk about these cases to remember what people recognized as a civil right and why they chose to uphold it so that we will know in the future what to point to if that right is challenged.

Hannah McCarthy: [00:27:24] And in the case of Loving v. Virginia in particular, we are talking about a man and a woman who loved one another and wanted to be married, live in the same home, raise their children and the judges who said, yes, that is your right. They didn't just make that decision based on the Constitution. They made it because they heard a story about human beings. And it was a good one, actually. Judge Farooqi brought this up, you know, yes. Judges passed down rulings based on the language of the Constitution. That's where law locates justice and injustice. But a sense of injustice that's also a feeling right and wrong, are defined by our founding documents and by our moral compass. To people, loving one another is not some fun anecdote in oral argument. It's the core of this case. It's part of what makes Loving v. Virginia a landmark case.

Judge Zia Faruqui: [00:28:22] We're not just robots, we're not automatons. We're just sitting and blindly looking. This I bring my life experiences with me to court as a judge, as a person in an interracial marriage. Sure. That comes to mind what would have happened if at the Virginia State Court there was someone who loved a black woman? There's someone who he was you know, he was Native American. Perhaps they would have said like the same result. But at least as they were thinking about it, they think about how does this make the Lovings feel? Right. And so that's my second point as to why this is super important. It's really upsetting. I mean, it really is. I mean, I'm NMI. So I think about most things now in terms of my kids and my daughter, who when she was, I guess, like seven pre pandemic and came back from class, was like, wait, like what happened to black people? I don't understand. You're like, oh my God, I don't even know how to begin this conversation. And I talked about loving. So because it's something that was really easy for me, because it obviously affects us. I was like, you know, there used to be a law that mama mama couldn't get married. And like, why? I was like, that's a good question. And, you know, it's but it is I want not only because of vigilance, but I just want her to appreciate and me to appreciate, like nothing is for granted that we shouldn't take anything for granted and like, hurt has happened and hurt requires, you know, thoughtful reflection upon it. And then also remedies. Right. Like what was a remedy for the Lovings?

Hannah McCarthy: [00:29:44] Richard and Mildred Loving won their case. An interracial couples won the right to marry without persecution. The Lovings raised their kids in Virginia. Richard died in a car crash at the age of 41, a crash that Mildred survived. She died in 2008 at the age of 68. And though neither of these individuals considered themselves history makers, they were only doing what they thought was right. Their case has been cited again and again in marriage equality cases. It was a major precedent case in the decision of Oberg, AFLD v. Hodges in 2016, the case that upheld the right to same sex marriage. Mildred did not live to see that case, but up until the end of her life, she did maintain a sense of right and wrong when it comes to love. Here's what she said on the fortieth anniversary of her court case.

Judge Zia Faruqui: [00:30:33] And so she issues this statement June 2007. She says, My generation was bitterly divided over something that should have been so clear and right. The majority believe that what judge said that it was God's plan to keep people apart and the government should discriminate against people in love. But I have lived long enough now to see big changes. The older generations fears and prejudices have given way in today's young people realize that if someone loves someone, they have a right to marry, surrounded as I am now by wonderful children and grandchildren. Not a day goes by. They don't think of Richard and our love, our right to marry and how much it meant to me that freedom to marry the person precious to me, even if others thought that was the wrong kind of person for me to marry. I believe all Americans, no matter of their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others, especially if it denies people civil rights. I'm still not a political person, but I am proud that Richard and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support that freedom to marry for all. That's what Loving and loving are all about.

Hannah McCarthy: [00:32:11] This episode was produced by me, Hannah McCarthy with Nick Capodice, Christina Philips is our senior producer. Our staff includes Jacqui Fulton and Mitch Schacci. And Erika Janik is our executive producer music in this episode by Chris Zabriskie, Daniel Birch, Xylo Ziko and Crowander. We have so many more resources and so many more episodes. You can find all of them at Civics101podcast.org. And don't forget, you never have to miss a single Civics 101 episode. Follow us on Apple podcasts or wherever you get your podcasts. And while you're there, leave us a review. We want to know what you think of us. And a very special thanks to Rebecca Fanning of the U.S. courts for all of her help, both on this episode and this entire Supreme Court series. Civics 101 supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.


 
 

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Civil Rights: Brown v Board of Education of Topeka

Five cases, eleven advocates, and a quarter century of work; Brown v Board of Education of Topeka addressed this question: does racial segregation in schools violate the 14th amendment?

Walking us through the long journey to overturn Plessy v Ferguson are Chief Judge Roger Gregory and Dr. Yohuru Williams. They tell us how the case got to court, what Thurgood Marshall and John W. Davis argued, and how America does and does not live up to the promise of this monumental decision.

Click here for a Graphic Organizer for students to fill out while listening to the episode


Transcript

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

Nick Capodice: [00:00:05] Since the first one appeared on the docket in 1791, there have been thousands of cases argued in the U.S. Supreme Court and each one arrived there in a different way. An individual burned a flag.

Speaker3: [00:00:17] Whatever pain freedom of expression may inflict, [00:00:20] it is a principle on which we can give no ground.

Nick Capodice: [00:00:23] Another was not informed of their rights upon arrest.

Speaker3: [00:00:27] Miranda petitioner versus Arizona.

Nick Capodice: [00:00:30] The president refused to hand over secret recordings

Speaker3: [00:00:33] That the Constitution means what he says it does and that there is no one, not even the Supreme Court, to tell [00:00:40] him otherwise

Nick Capodice: [00:00:41] These become landmark cases after they're decided. But sometimes there's an issue that's so divisive, so prevalent in the minds of Americans that a case is a landmark before it even gets there, a case that lawyers and doctors, [00:01:00] sociologists and activists had been working on for a quarter of a century before its day in court.

Judge Roger Gregory: [00:01:07] Sometime, you know, you go through things like, well, you know, I didn't know at the time, but they knew at the time they were riding in lightning.

[00:01:20] Every. [00:01:20] I can recommend people

Speaker3: [00:01:29] You've got to go to it not only in you getting so many people, I mean, the Feltes main just gravity. Oh, [00:01:40] I wouldn't want to get all the hate in their heart. What about you, sir? Do you think they got to go back to school?

[00:01:48] And I say segregation now. Segregation tomorrow.

Nick Capodice: [00:01:59] You're listening [00:02:00] to Civics 101, I'm Nick Capodice.

Hannah McCarthy: [00:02:02] I'm Hannah McCarthy,

Nick Capodice: [00:02:03] And today we are learning about one of the most landmark landmark decisions in U.S. history, a case that was actually five cases rolled into one, all of them asking this simple question, does racial segregation in schools violate the 14th [00:02:20] Amendment is separate but equal equal. This is Brown versus Board of Education of Topeka, Kansas, 1954.

Hannah McCarthy: [00:02:29] How does such an enormous question even end up before the Supreme Court?

Judge Roger Gregory: [00:02:35] Well, the best way to start it is in 1896, the Supreme [00:02:40] Court handed down the decision of Plessy vs. Ferguson. Briefly. It is known for its ruling that state mandated segregation of the races would not violate the 14th Amendment of the Constitution if those accommodations or services are equal.

Nick Capodice: [00:02:59] This is Chief [00:03:00] Judge Roger Gregory

Judge Roger Gregory: [00:03:01] I'm the chief judge of the United States Court of Appeals for the 4th Circuit. The 4th Circuit encompasses the states of Maryland, West Virginia, the North and South Carolina.

Yohuru Williams: [00:03:12] Well, what you witnessed in the aftermath of Plessy is the kind of gradual adoption of separate but equal as we know it today. [00:03:20]

Nick Capodice: [00:03:20] And this is Dr. Yohuru Williams. He's professor of history and founding director of the Racial Justice Initiative at the University of St. Thomas.

Hannah McCarthy: [00:03:27] Gradual adoption of separate but equal. In other words, segregation laws didn't happen overnight.

Nick Capodice: [00:03:35] Yeah, we see this in so many Supreme Court decisions. It takes time [00:03:40] for the effects of these big rulings to change laws and customs state by state.

Hannah McCarthy: [00:03:45] What did segregation look like in the United States in the first half of the 20th century before Brown v. Board?

Yohuru Williams: [00:03:52] So it's not immediate that segregation signs go up, but over the course of the 30 years post Plessy, you actually begin [00:04:00] to see kind of the advent of this rigid system of segregation, which most of us associate with the white and colored signs. For example, the first municipality to enact the residential segregation ordinance is Baltimore, Maryland, in 1910. That's relatively late. So you're looking at certainly [00:04:20] a segregationist impulse and you're certainly looking at efforts by municipalities and private businesses to segregate. But it's informal and haphazard in some sense, and it increasingly becomes more formalized

Nick Capodice: [00:04:36] And in terms of education. This resulted in massive disparities [00:04:40] in school funding. Many states were spending three times as much on white students than Black students, and some were even more disparate; for every five dollars spent on a Black child in South Carolina. Fifty three dollars was spent on a white child.

Yohuru Williams: [00:04:55] And then by the time you get to the 19 teens and nineteen twenties, segregation [00:05:00] as we know it, in the form that we're most familiar with, it is is pretty much entrenched in the United States, particularly in the former states to the old Confederacy.

Nick Capodice: [00:05:11] But before you think I'm saying that segregation was a purely Southern institution, it was widespread throughout the entire U.S. in completely different ways. And to explain [00:05:20] this, Yohuru defined two terms for me, de juri and de facto segregation. De juri is by law, de facto is by custom or practice.

Yohuru Williams: [00:05:30] A good example of that would be segregation ordinances that require African-Americans or the white and colored races to go to separate schools or residential [00:05:40] segregation ordinances which deny African-Americans and whites to occupy homes domiciles within the same block. That's there by by law.

Nick Capodice: [00:05:51] And while during segregation was more common in the Southern states, de facto segregation was in the North.

Yohuru Williams: [00:05:56] You'd have de facto segregation at education because [00:06:00] because African-Americans, like immigrants, move into neighborhoods which are predominantly comprised of people from that race or that ethnic group, then the schools and the businesses and everything that's in that community by default is predominantly African-American and predominantly Italian or [00:06:20] whatever it may be. The difference with the ethnic immigrants is that eventually they're able to escape those spaces. But for African-Americans, thanks to practices such as redlining, that becomes literally in and of itself a prison and they're not able to escape,

Hannah McCarthy: [00:06:38] I feel like redlining should be an entire episode [00:06:40] of Civics 101. But can you just give a short definition of it?

Nick Capodice: [00:06:44] Sure. Briefly. Redlining grew out of the New Deal in the 1930s. In an effort to increase the number of American homeowners, the government increased federal loans for homes, but mortgage lenders refused to grant those loans. The people who lived in, quote, [00:07:00] hazardous neighborhoods, those were predominantly neighborhoods with a large Black population.

Speaker3: [00:07:06] We have absolutely no one in the south, those areas which have been segregated for at least 100 years.

Nick Capodice: [00:07:15] So by the time we get to the 1950s, about 11000 school districts in the country, [00:07:20] the majority are segregated. It was required in 16 states and optional or not forbidden in another 18. So that's where we are. School segregation wise when the court hears the case in 1952.

Hannah McCarthy: [00:07:35] So what was happening with the opposition to segregation leading up to this case? [00:07:40]

Nick Capodice: [00:07:40] The NAACP, the National Association for the Advancement of Colored People began the legal fight against segregation in the early 1930s. Charles Hamilton Houston, he was a graduate of Harvard Law, became their first legal counsel. Houston later worked at Howard University, where he and Thurgood [00:08:00] Marshall and others started, in essence, a think tank. Legal minds from across the country working to conceive a strategy to take on separate but equal.

Hannah McCarthy: [00:08:11] And what did their strategy end up being?

Nick Capodice: [00:08:13] Here's Judge Gregory again.

Judge Roger Gregory: [00:08:15] So basically, let's take Plessy, even though we don't like it, at its word. Forms were filed. [00:08:20] These suits, whenever there's demonstrable differences in the facilities, is clearly unequal. So you bring litigation. And the overall strategy was it was a war of attrition.

Nick Capodice: [00:08:35] Their legal strategy at first focused on the equal part of separate but equal, [00:08:40] schools could segregate as long as they had equal facilities. So the NAACP found instances where schools clearly did not. But providing equal facilities cost a lot of money, money that many institutions didn't have.

Yohuru Williams: [00:08:54] The idea was we need to undermine the doctrine of Plessy vs. Ferguson in all [00:09:00] aspects of American life. They realized, for example, that in terms of education, the best case they can make early on is a graduate professional education. Why will they make the case that if a law student wants to practice law in a particular state, but the state's answer to not maintaining a separate [00:09:20] facility for quote unquote colored students is to send that student anywhere in the country they want to go provide full tuition. The state saying we're offering you a deal here. We're saying you can go wherever else eventually. Thurgood Marshall, Charles Hamilton, Houston, they'll come to the conclusion, you know, kind of brilliantly, Thurgood [00:09:40] Marshall, the case of Murray vs. Maryland that, well, that's inherently unequal because you're denying that student access to those facilities within the state that ultimately would be successful for them to be able to work and be successful as an attorney in that state.

Nick Capodice: [00:09:55] And this was a particular situation that Thurgood Marshall knew very well because he [00:10:00] wanted to go to the University of Maryland law school and had been denied admission. And so he went to Howard, a historically Black university. But this strategy, focusing on higher education, worked.

Judge Roger Gregory: [00:10:12] So for the first time in these cases, there were victories. But the victory was this. The court recognized that [00:10:20] there were intangibles about the educational process that you couldn't make because these schools, because the states responded, said, OK, we'll start a new law school. And the court said, wait a minute, a law school that's newly minted months old versus University of Oklahoma. University of Texas, [00:10:40] it's it's it's almost a joke to consider that to be equal. So therefore, admission was allowed. So that was a good part. But the bad part is that these cases did not take on Plessy head-on. It dealt with equalization.

Nick Capodice: [00:10:56] That is, until 1950. Charles [00:11:00] Hamilton Houston died and Thurgood Marshall became the head of the legal team of the NAACP. And he shifted the strategy, saying, we are no longer fighting for equal, we're fighting against separate. And he and his team selected five cases to submit to the Supreme Court to overturn Plessy v. Ferguson.

Hannah McCarthy: [00:11:20] Yeah, [00:11:20] OK, so I always thought the Brown v. Board was just one case with one plaintiff. What were these other cases about?

Nick Capodice: [00:11:28] All right, here's a summary of the five cases that we now know as Brown v. Board of Education. No. One, Briggs v. Elliott. Harry Briggs lived in Summerton, South Carolina, where his son and others had no [00:11:40] bus transportation whatsoever to their Black elementary schools, which were little more than wooden shacks. And they would walk, in some cases eight miles to school, #2, Bowling v. Sharpe, a group of 11 Black junior high schoolers who were refused admission to an all white school in Washington, D.C. Their Black-only schools [00:12:00] were shown to be grossly unequal. Number three, Belton v. Gebhart. This was a case where students in Delaware were riding busses an hour to get to their crowded one room school. Number 4, Davis V County School Board of Prince Edward County. This is the only case that started from a protest. 16 year old Barbara Rose Johns led [00:12:20] a walkout of her school to protest unequal conditions. And finally, number five, Brown vs. Board of Education of Topeka, which interestingly, is the only case where school facilities were found to be equal and in some instances superior. But the qualification of teachers was called into question.

Judge Roger Gregory: [00:12:39] These cases [00:12:40] were meticulously chosen because they wanted the facts to be different. Washington, D.C., federal jurisdiction, not state Delaware state case. And they won the case. They were respondents. There was some schools where Blacks attended where it was at least equal to the whites. So they wanted [00:13:00] to make sure this wasn't just about you take on Plessy because the argument what they wanted to make is even if the school is equal or better, there's something inherently, inherently. Unequal about separation.

Hannah McCarthy: [00:13:17] It was a strategy where they wanted to cover all of [00:13:20] their bases.

Nick Capodice: [00:13:20] Yeah, Judge Gregory said they were thinking through all the possibilities with these cases to make sure that there was no wiggle room.

Judge Roger Gregory: [00:13:27] And the key is this. They want to make sure that when they won, that this would settle it for all America. You couldn't say, oh, that was the state not about [00:13:40] federal. No, it's state and federal. Whatever was...every fact was and you couldn't say, well, that was the Blacks in poverty. No, they had several Black physicians, Black professors, teachers. It didn't matter. Segregation, it was harmful. And they wanted [00:14:00] to cross the whole spectrum. No matter what the circumstance, the harm is done to the Black kids who are denied based solely on race.

Nick Capodice: [00:14:10] And now we come to the argument in the court, the case or cases, I should say, were argued in December 1952 to answer the question, [00:14:20] does segregation violate the equal protection clause of the 14th Amendment?

Hannah McCarthy: [00:14:24] Who are the lawyers who are actually making the arguments in the court?

Nick Capodice: [00:14:28] Due to this being five cases, there were 11 lawyers as advocates. The two most famous, though, were in one corner arguing against Plessy v. Ferguson, Thurgood Marshall. [00:14:40]

Speaker3: [00:14:40] Well, when you live in a segregated community, you find that one group has everything and the other group has little, if anything.

Nick Capodice: [00:14:47] And in the other, arguing that states had a right to segregate John W. Davis,

Speaker3: [00:14:53] The state establishes the schools. It pays the funds and it has the sole power to educate its citizens [00:15:00]

Nick Capodice: [00:15:01] Since there isn't any archival I can find if John W. Davis, that is from the wonderful TV miniseries Separate but Equal, Burt Lancaster's final role.

Hannah McCarthy: [00:15:09] And what were Marshall's and Davis's arguments?

Nick Capodice: [00:15:12] Ok, first, a man who had appeared in the Supreme Court one hundred and forty times, John W. Davis,

Judge Roger Gregory: [00:15:18] John W. Davis [00:15:20] at the time was considered to be the most eminent and prominent lawyer in America. He was former president of the bar. You know, he was a candidate for president. He was ambassador to England. I mean, he he was just awesome. He made it simple. He said, court, you are [00:15:40] interpreting the 14th Amendment and you're your power, if it exists, must exist to the 14th Amendment. To end segregation. So let's look at what the framers let's look and see what their intent was.

Nick Capodice: [00:15:57] Davis had three main arguments based [00:16:00] on what he saw as the intent of the people who wrote the 14th Amendment. Number one, the Freedmen's Bureau, which was created in 1866, established segregated schools so Congress could not have meant to end segregation. Number two, Davis talked about how Senator Charles Sumner proposed that four formerly Confederate states to be readmitted [00:16:20] to the Union. They had to desegregate and that proposal failed. And finally, number three, Congress operated segregated schools in Washington, DC

Judge Roger Gregory: [00:16:30] So how could the same Congress met to end segregated schools in the 14th Amendment when they turned around were operating segregated [00:16:40] schools at the same time? So this is first attack. Justices, you can't do this when the framers clearly laid the breadcrumbs to show that that couldn't have been their intent.

Hannah McCarthy: [00:16:53] So Davis wasn't interested in arguing about equality. He was only arguing about the intention [00:17:00] of the man who wrote the 14th Amendment.

Nick Capodice: [00:17:03] Yes, Davis admitted schools were not equal and they should be. But he said the states just needed time to do it.

Hannah McCarthy: [00:17:12] And what was Thurgood Marshall's answer to this?

Nick Capodice: [00:17:14] Marshall hardly focused on the intent of the framers at all.

Judge Roger Gregory: [00:17:17] He said, and this is where he really put it to the court, that the [00:17:20] only thing he could think of to rationalize this is that somehow it was important to keep these people who had come up from slavery to keep them as in a position or status as close as possible to that condition of enslavement as [00:17:40] you can. And is now is the time for the court to say that that is not what the Constitution stands for and to make that clear. So he took it right on. He said basically you have to adopt that view. That is something intrinsic about the Black race, [00:18:00] that it must be kept in an inferior status close to slavery is possible contrary to the 13th Amendment, of course, because it says all vestiges of that servitude beautiful how he tied that into a 13th Amendment theme. And to continue what the court said, the Constitution still stands for that in nineteen fifty [00:18:20] three. That was his response to Davis, which was all just just brilliant. You have same schools, equal schools, same funding, beautiful building. It doesn't matter. Then what he did. It put together not just arguments from lawyers, but a team of experts that were awesome, Dr. Kenneth Clark, who [00:18:40] did Black Doll study and showed how these Black kids were shown dolls and rejecting really themselves

Archival: [00:18:48] As the nice dark. Which doll is the bad doll,

Nick Capodice: [00:18:56] Kenneth and Mamie Clark's doll test asked Black children to point to a Black or [00:19:00] a white doll when asked, which is the smart doll, the polite doll, or which is the ugly doll, which is the naughty doll. And these children overwhelmingly pointed to the white doll for all the positive traits and the Black doll for all the negative ones.

Judge Roger Gregory: [00:19:14] What compels the court to act is to show a harm. And they use [00:19:20] the tort model, which means in law a wrong, the wrong is the physical and mental damage done to the child. Had to be a moment of just tearful moment, but also a moment powerfully that for the first time to show in terms of the amount of science that these things are real and they're very [00:19:40] devastating and Marshall made it clear. We may have done it long and announced it long but these have become echoes of real harm to real children.

Nick Capodice: [00:19:54] The court hears the arguments in 1952 and says come back in a year and argue it [00:20:00] again,

Hannah McCarthy: [00:20:00] Why did they do that? Why not just issue a ruling? Then and there?

Nick Capodice: [00:20:04] The court was divided on the issue and some justices felt that if this decision was not unanimous, pro segregationists could use that to delegitimize the ruling. And so Justice Felix Frankfurter proposed a new hearing [00:20:20] as a stalling tactic to build consensus, impossible as it seemed at the time. But before that second round of arguments, something big happened.

Speaker3: [00:20:30] President Eisenhower appointed Governor Earl Warren of California as chief justice of the Supreme Court. The 62 year old Calif.

Nick Capodice: [00:20:37] What happened is this. Chief justice, Fred Vinson, [00:20:40] who had presided over the first Brown v. Board arguments, died in 1953, and President Eisenhower needed to appoint a new chief justice. And he had promised former California Governor Earl Warren, who is just about to take a job as Eisenhower solicitor general, that he'd have the next vacancy that opened up in the court and Earl Warren was nominated to be the [00:21:00] next chief justice. The case was argued again in December of nineteen fifty three. And on May 17th, 1954,

Speaker3: [00:21:08] On May 17, the court ruled unanimously that segregation in public schools was not legal.

Nick Capodice: [00:21:15] Separate but equal is a violation of the Fourteenth Amendment overturning [00:21:20] Plessy v. Ferguson and ending school segregation. And it was unanimous. Scholars agree that while the ruling would have been the same if Vinson hadn't died, the unanimity was secured by Chief Justice Warren. He convinced one justice to drop his concurring opinion and another to drop his dissent. And Warren himself [00:21:40] wrote the opinion.

Judge Roger Gregory: [00:21:41] The opinion is beautiful in its simplicity and brevity. The court said quite plainly, we cannot determine the intent. Brilliant. We can't do it. They didn't hem and haw and try to, you know, pontificate and scratch their chins like some opinions do. We [00:22:00] can't tell. So we move on. And we must assess in modern day time. What is the importance of education? So that's how he got to it quickly. And what he said, there's nothing probably more important in a state and local government function to educate its children. It [00:22:20] is the window through which everyone develops, how they become a thinking person. How democracy thrives. Because people are able to function and be productive and understand their rights and those things. And he doubts that in a court of law they say that any child could succeed without an education.

Nick Capodice: [00:22:38] Warren's opinion ends with "we [00:22:40] conclude that in the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal."

Judge Roger Gregory: [00:22:51] It reminds me of Alexis de Tocqueville in 1830, traipsed about America and wrote American Democracy. He said America's [00:23:00] greatness is not because we are more enlightened than other nations. He said Our greatness is our ability to repair our faults. And I can't think of a better example of that than Brown.

Hannah McCarthy: [00:23:16] But what next? How does desegregation [00:23:20] happen in those 11000 school districts?

Nick Capodice: [00:23:23] The Supreme Court made a new ruling in 1955, which they just called Brown vs. Board of Education of Topeka II to give their recommendations and how the decisions should be implemented. Now, remember, the Supreme Court interprets the law. They can't enforce it. They can't fine a school or [00:23:40] arrest a principal for refusing to desegregate. But they did use four famous, some now say, infamous words about how desegregation should happen "with all deliberate speed." Here's Yohuru Williams again.

Yohuru Williams: [00:23:55] It's not so much that Brown led to immediate desegregation. [00:24:00] In fact, the language of the court itself becomes contested. What does all deliberate speed mean? You've got some municipalities who look at that after they, you know, exhaust efforts at interposition and nullification and other efforts, Governor Lindsay Almond in Virginia closes the schools for a year rather than see them open on an integrated basis. Then you've got other places, [00:24:20] you know, other states that go. Well, all deliberate speed. We think that we can accomplish this by nineteen eighty. So they're kind of kicking the can down the road.

Nick Capodice: [00:24:28] The timeline of desegregation of schools is lengthy. Most famously in 1957, a white mob of protesters as well as the Arkansas National Guard prevented nine students from attending Central [00:24:40] High in Little Rock, Arkansas.

Speaker3: [00:24:42] Little Rock, Arkansas. And the first phase of the trouble, the white population are determined to prevent college students from going to the school. Their own children attend picketing the school. They clash with the police. The law of the land agrees

Nick Capodice: [00:24:55] In response, President Eisenhower federalized the National Guard [00:25:00] and sent 1000 soldiers from 101st Airborne to protect those students.

Hannah McCarthy: [00:25:05] And so at what point was total desegregation of schools actually achieved in the United States?

Nick Capodice: [00:25:13] The answer to this is complicated because while no public school officially says this is a segregated [00:25:20] school, schools in America are enormously segregated. A study in 2016 found that over half of American schoolchildren attend a school that is predominantly white or predominantly Black. And the barrier to integration is due to income inequality, to unequal practices like redlining, even to the placement of train [00:25:40] tracks in a town. But the fact is, schools in America do remain segregated.

Yohuru Williams: [00:25:46] I think part of the challenge with Brown in this kind of tortured relationship with Brown is that there's a recognition on one hand that Brown versus Board of Education was an important milestone [00:26:00] in the struggle for Black equality, no matter what, in terms of how we think about what it actually accomplished, it repudiated the doctrine of separate but equal. The problem is that it's an articulation of principle. And in practice, Brown really hasn't achieved. In fact, one could argue that the efforts to maintain [00:26:20] the segregationist impulse were so insidious that things are worse today when people make the argument that, you know, maybe we should retreat from the promise of Brown versus Board of Education. It's coming in some sense from that room and the narrative that comes from if Brown was [00:26:40] meant to create equality by ensuring absolute equality, access to public education, it failed miserably. If the metric is that it got rid of separate but equal as articulated in Plessy and opened the door for interrogation of of how you dismantle that in other areas is an absolute success. But in terms of its primary [00:27:00] directive, desegregation of schools with all deliberate speed, it would be difficult for anyone to argue at this point that Brown v. Board was a success.

Hannah McCarthy: [00:27:08] It sounds like Yohuru is saying that while this case was a tremendous victory, schools are just one part of an unequal system. Discrimination in housing, employment, the [00:27:20] criminal justice system. These issues are all intertwined.

Nick Capodice: [00:27:24] That's right. And changing laws does not necessarily change minds. Brown is an amazing victory and an amazing story. You've even got Thurgood Marshall becoming the first Black justice on the Supreme Court 13 years later.

[00:27:37] Historians will note this hour at the White House in [00:27:40] a Rose Garden ceremony, a 58 year old great grandson of a slave is nominated by President Johnson to be a Supreme Court justice. He is Solicitor General Thurgood Marshall

Nick Capodice: [00:27:52] But the half century since that decision has been a series of gains and losses. Many other movements, including the [00:28:00] fight for rights of other minority groups, have been helped by the Brown decision. But many of the issues at the heart of Brown, the promise of equality for all people and how to achieve it remain. That's it for this Supreme [00:28:20] Court episode on Civics 101, follow us on whatever podcast app you prefer to keep up with how these justices interpret our lives.

[00:28:28] This episode was produced by me Nick Capodice with You, Hannah McCarthy thank you.

Hannah McCarthy: [00:28:31] Thank you. Thank you.Our staff includes Christina Phillips, Mitch Scacchi, and Jacqui Fulton. Erika Janik is our executive producer and rides in lightning while her dogs hide from it.

Nick Capodice: [00:28:32] Music in this episode by Blue Dot Sessions, Sarah the Illstrumentalist,, Scott Holmes, Jesse Gallagher, and that lady whose beats are never vague, Emily Sprague.

Hannah McCarthy: [00:28:32] Our show is and always will be free to listen to, so show your support of it with a donation at our website, civics101podcast.org.

Nick Capodice: [00:28:57] Civics [00:28:40] 101 is made possible by our listeners [00:29:00] and is supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Japanese American Internment

Japanese American internment, or incarceration, spanned four years. Over 120,000 Japanese Americans and nationals, half of them children, were made to leave their homes, schools, businesses and farms behind to live behind barbed wire and under armed guard. There was no due process of law, no reasonable suspicion keeping these individuals locked away. What does this injustice mean to our nation? To the inheritors of that trauma? Our guides to this troubling period of American history are Judge Wallace Tashima, Professor Lorraine Bannai and Karen Korematsu.

 

Episode Resources

Click here to download a graphic organizer to take notes upon while listening to the episode.

Listen to Densho’s new podcast, Campu, which tells the stories of Japanese internment through mundane objects and places.


Audio automatically transcribed by Sonix

This transcript may contain errors.

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

Hannah McCarthy:
In the days after the United States entered World War Two, it became clear that the public needed to know more, more about why we were at war, who we were at war with, who our allies were, who our enemies were. So in the summer of 1942, President Franklin Delano Roosevelt created the United States Office of War Information. It would create posters, magazine articles and films to show the American public what we were up to overseas.

Archival:
Believe me, today we've been through some of the real stuff. The fellows are asleep now. They're half dead with exhaustion. They're filthy with sweat and dirt. But take my word for it, Mom. They're grand soldiers. Every one of

Hannah McCarthy:
Them encouraged patriotism.

Archival:
Just what does Mrs. Exception mean when she tells you she had to give up a Red Cross work because it didn't leave her time enough to get her hair done each week

Hannah McCarthy:
And explain why we were removing over 120000 people from their homes and sending them to camps in desolate regions of rural America.

Archival:
All persons of Japanese descent were required to register. They gathered in their own churches and schools, and the Japanese themselves cheerfully handled the enormous paperwork involved in the migration.

Hannah McCarthy:
This is Civics 101, I'm Hannah McCarthy,

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And today we are talking about the four year period during which American citizens were ordered to leave their homes, friends, schools and businesses behind to live under armed guard. We're talking about Japanese American confinement during World War two. And if you haven't heard it, this is something of a companion episode to Korematsu versus the United States, the case that unsuccessfully challenged what we'll be talking about today.

Judge Wallace Tashima:
Born in 1934, of course, you know, study a little bit of history. Just I think there's been a remarkable change in our country. You know, it's still ongoing. It's not complete, but there's been a change. I think my life is kind of an illustration of it.

Hannah McCarthy:
This is Judge Wallace Tashima. If you've heard our episode on the Supreme Court case, Korematsu versus the United States, then you already know his voice. Judge Tashima is a senior United States circuit judge of the U.S. Court of Appeals for the 9th Circuit and currently lives in Los Angeles, California.

Judge Wallace Tashima:
I was born in Santa Maria, California. My father was an immigrant from Japan. My mother was also an immigrant from Japan. And my father was a graduate of the University of Utah. I was born in Santa Maria where he was the I guess the executive manager of the Farmers Co-op time, which is a big farming area.

Hannah McCarthy:
Judge Tashima's father passed away when he was about four and his mother moved the family to L.A. That is where they were on December 7th, 1941, when the Empire of Japan launched a surprise attack on the naval base at Pearl Harbor in Honolulu, Hawaii. Nearly 1400 people were killed, including some civilians. Now, up until this point, the United States had been officially neutral in the World War. That had been raging for nearly three years. And that was over now.

Archival:
I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war. Has existed between the United States and the Japanese empire.

Nick Capodice:
So Judge Tashima was pretty young when this happened.

Hannah McCarthy:
He was and he makes clear that his memories are that of a young boy. He doesn't remember everything. He didn't grasp everything that was going on at the time, but he still has many memories. It's just him, his sisters and his mom, a family of Japanese descent living in California in the wake of an attack by the Japanese empire

Judge Wallace Tashima:
In May of 1942. We were we were sent to this what they call the war relocation center, which was, you know, like an internment camp. It wasn't a German camp. The one we were sent to was called the Post and it was on the Arizona side of the Colorado River. And to show how many people were there, I think there are about fifteen thousand Japanese Americans in right away. It became the third largest, if you could call it a city, city in Arizona, because Arizona was you know not heavily populated.

Hannah McCarthy:
Poston was the largest of 10 internment camps scattered across the country where nearly one hundred and twenty thousand people of Japanese descent eventually landed following President Roosevelt's executive order 9066.

Nick Capodice:
Did that order specifically call for the removal and relocation of Japanese Americans?

Hannah McCarthy:
Actually, the order authorized the military to remove and relocate anybody from designated, quote, military areas. But the military targeted people of Japanese descent.

Lorraine Bannai:
Any understanding of the Japanese American population during World War Two has to start with an understanding of the history of anti-American sentiment in this country going all the way back to the immigration of Chinese, mainly Chinese, during the late eighteen hundreds.

Hannah McCarthy:
This is Professor Lorraine Bannai. She's the director of the Fred Korematsu Center for Law and Equality and a professor of lawyering skills at Seattle University School of Law.

Lorraine Bannai:
There were just a host of anti-Asian laws. Japanese Americans. Chinese Americans were prohibited from intermarrying with whites. Asian-Americans were prohibited from owning land. Asian-American children are placed in segregated school. We see many of the same types of racist laws directed against other immigrant communities and people of color in this country directed against Asian-Americans. So the bombing of Pearl Harbor took place against this atmosphere of racism and hate,

Archival:
As iron ore is melted in furnaces to remove impurities, so in Japan, humanitarian impurities are burned out of the child as the steel is shaped by beating and hammering. So is the boy hammered and beaten into the shape of the fanatic samurai.

Lorraine Bannai:
You know, in the days that followed, community leaders were picked up and there was a call from the popular press, the public newspapers, to get rid of Japanese Americans from the West Coast believing that they were a threat to the country.

Nick Capodice:
So this demand to remove and relocate anyone of Japanese descent, it's not simply a result of the attack on Pearl Harbor. It came after years and years of bigotry and mistrust and legislation passed against Asian immigrants and Asian-Americans.

Hannah McCarthy:
And it isn't just the press who calls for the removal of anyone who looks Japanese. It's economic and nativist lobbying groups who have long viewed Japanese people as a threat. It's also people from all levels of government. So President Roosevelt finally signed Executive Order 9066 on February 19th, 1942.

Karen Korematsu:
You can imagine or try to imagine that all of a sudden you are looked like as the enemy because you're you're of Japanese ancestry. Even though you're born in this country, you're look like the enemy.

Hannah McCarthy:
This is Karen Korematsu, daughter of Fred Korematsu, the man who challenged executive order 9066 by staying put. She now runs the Fred Korematsu Institute.

Karen Korematsu:
Not only were people's possessions and their livelihoods and their and their homes stripped from them, their dignity was stripped from them. And we all want to have our dignity, to be proud of ourselves. And when when people look at you like it's your fault of the bombing of Pearl Harbor, that it's your fault for for this war and You, you're powerless. And it's very, very scary because that weight is on your shoulders.

Nick Capodice:
Real quick, what were the military areas that people of Japanese descent were required to leave?

Hannah McCarthy:
All you need to know is that this includes all of California and Alaska and parts of Washington, Oregon and Arizona.

Nick Capodice:
So the entire west coast of the United States.

Hannah McCarthy:
The whole thing off limits to Japanese Americans and nationals. And that's regardless of age, health, occupation or even reasonable suspicion.

Lorraine Bannai:
There were no charges against them. They have no trials and there was no allegation that any had engaged specifically individually had engaged in acts of espionage or sabotage. Every person of Japanese ancestry was moved. There's some really famous footage of soldiers kind of between them carrying an elderly man, holding up an elderly woman between them who can barely walk. But people were moved regardless of age. My my grandmother was a blind mother of five children who had moved. Her son was a teenager at the time. The people were elderly and were ill and orphans and everyone was moved without exception.

Nick Capodice:
So I had a guest recently wrote in to ask us which branch of government and agency was in charge of this effort. Was it the executive branch? Did President Roosevelt have a major say in what went on?

Hannah McCarthy:
The thing about executive order 9066 is that it's simply a military authorization. So while Roosevelt focused on the war, the Army and specifically General John DeWitt, who was in charge of the Western Defense Command of the Army, targeted and removed people of Japanese descent from these, quote, military zones.

Archival:
No one knew what would happen among this concentrated population if Japanese forces should try to invade our shores. Military authorities therefore determined that all of them, citizens and aliens alike, would have to move.

Hannah McCarthy:
All of this fell under various arms of the executive branch. So step one is the army. After that, temporary wartime agencies took over. Step two is the removal of Japanese Americans and immigrants to temporary relocation centers. And step three is the transfer of these individuals to formal internment camps for the duration of the war. Places like Poston War Relocation Center, where Judge Tashima and his family ended up.

Judge Wallace Tashima:
I spent three years and three months there May 42 to August of 1945. So I completed the third, fourth and fifth grade in that internment camp.

Nick Capodice:
That's just so difficult for me to imagine, because when you're that young, just a year of school is a long time. But three years of school is a huge chunk of your entire life. And what were the living conditions like?

Judge Wallace Tashima:
We live in barracks. All internees were housed in these barracks. I would say my best estimate now, probably about the size of a two car garage, a room about that size. And we had five in our family. My mother was a widow and I had three sisters and myself -- four -- she had four kids. And so five of us living in the one room. So there was no privacy, so to speak.

Hannah McCarthy:
No privacy in a room the size of a garage is tough, to say the least, but the Tashimas and everyone else may do.

Judge Wallace Tashima:
So you put a rope and blankets and stuff like that. There was no plumbing, but there was electricity. Each block had a tank of fuel oil. So we had to go get our own fuel oil to fuel up our heater in the unit. They had like central restrooms, called latrines then. A women's latrine and a men's latrine. And also a central laundry room where they can go and do their laundry. And of course, there's no furniture. No one had any furniture. I think it was a bed and mattress.

Hannah McCarthy:
Judge Tashima went to school, made friends, played on the weekends. This is nearly four years of life for most of the people in these camps. So you had to find a way to go on.

Judge Wallace Tashima:
You know, there were no recreation facilities there, no playgrounds, nothing but people, you know, built basketball courts, baseball fields, stuff like that. There was a huge irrigation canal that ran right through the camp. So they make a big like a like a swimming pool. We swam in there and I learned to swim at quite a young age because there was about nothing else to do in the summertime.

Nick Capodice:
Speaking of getting on with your life, how did these individuals and families make their spaces comfortable where they allowed to bring stuff from their homes,?

Hannah McCarthy:
Only what you could carry. So Judge Tashima says people got pretty much everything else from the Sears Roebuck catalog.

Judge Wallace Tashima:
There are no stores, no grocery stores, drug stores, department stores, nothing. Everybody used to order their clothes from Sears Roebuck, I remember. Everybody had a Sears Roebuck catalog.

Nick Capodice:
But where did the money come from to do that, Hannah? Everyone was forced to leave their jobs. So how could they pay for anything from Sears Roebuck?

Hannah McCarthy:
Well, OK. For one, the government covered food and the meager housing and people did have access to their funds, with the exception of a few who had their bank accounts frozen. And there were jobs at the camps.

Judge Wallace Tashima:
A number of the internees were professional people, doctors and nurses, dentists, stuff like that. Those people got highly paid at something like twenty six dollars a month. And if you were if you were cooking in the mess hall you could make maybe 15 dollars a month. It was that kind of wage structure. There were a bunch of Caucasian workers there, some worked in the hospital. My third grade teacher there was a Caucasian woman and they lived in a separate, almost like separate little town.

Hannah McCarthy:
Judge Tashima told me, by the way, that these white workers were also paid significantly more than internees.

Nick Capodice:
That strikes me as just another small example of how the government was explicitly treating these internees as something closer to prisoners than to untried, unconvicted, innocent, loyal citizens. Which brings me to one point. I know we covered in a Korematsu v. US episode, but it's about the terminology here. We've been saying internment and internee because that's what the government called and calls it. And it's more likely what you'll read in a history textbook. But Karen and Lorraine call this incarceration.

Hannah McCarthy:
And that is the term advocated for by organizations who are trying to keep this history alive. And it's not the only government use term that's challenged.

Karen Korematsu:
People don't understand that. You know, the Japanese American incarceration rate, we were trying to bring attention to the euphemisms that were were used at that time to kind of soft pedal the governments, you know, outright really racist act against Japanese Americans. And so, you know, the like you used to refer to the term of evacuation, which I can tell you that even five year olds and six year olds understand evacuation. Yes. Whether you're living in California and you have earthquakes or you're in the middle of the country and you have tornadoes or you're in in Louisiana and in hurricanes. Right. It's it's to be removed for your own safety. Well, the Japanese Americans weren't removed for their own safety. They were forced from their homes. They lost their possessions just because all of them look like the enemy, quote, unquote.

Nick Capodice:
And what happened to the homes of these 120000 people? Did the government seize their property?

Hannah McCarthy:
No, but they might as well have. I mean, when the evacuation order came down, people had between a week and 10 days to either find someone to take and protect their property or to sell it off. You could either sell your home, find a renter, or just hope it wasn't damaged somehow. And renters regularly stole and destroyed property vandalism of Japanese property. It was very common. Across the West Coast, the property damages are estimated to be between one and three billion dollars, and that's not adjusted for inflation.

Judge Wallace Tashima:
A lot of people lost a lot of property and a lot of their savings. You know, my mother being a widow, we didn't have a lot of money. But, for instance, my my father in law, my wife's father was a very successful businessman in Ventura County. He ran several grocery stores, but they took him away. So he lost, I think, literally by today's delegation just millions of dollars.

Nick Capodice:
I know Judge Tashima was quite young at the time, but did Judge Tashima recognize at the time how unjust this was?

Hannah McCarthy:
He told me about movie nights when mothers of soldiers who had died overseas would be called to the front of the crowd and presented with a Medal of Valor, young men who died fighting for the country that incarcerated them.

Judge Wallace Tashima:
It struck me even as a fourth grader. That it was something was not right about that.

Nick Capodice:
Hang on, the Army drafted people from these camps, the same army that rounded them up and forced them to relocate.

Judge Wallace Tashima:
The boys turned 18. They were drafted into the army like all other young white Americans in World War Two. And they would go off to basic training. At that time they all got a 30 day home leave before they were shipped overseas. These boys were then, they finished their basic training and they come back to the camp to spend their last annual pre deployment leave in an internment camp before going off to fight. It just didn't seem right. You know, the only thing a 18, 19 year old can do if you get 30 days leave, where are you going to go? Are you going to go home? Right. And their home was in the internment camp.

Hannah McCarthy:
I also want to point out that not every internee was drafted. Many voluntarily joined the military during World War Two. Judge Tashima also told me that he would occasionally see wounded veterans, people on crutches or in wheelchairs, who, after surviving the war but not without injury, were sent back to Camp re-incarcerated. I feel like we really cannot overstate how frightening and confusing this period of time was for the people incarcerated in these camps. But we also need to emphasize how frustrating and unjust it must have felt. Fred Korematsu was one of many who understood that his rights as an American citizen were being violated, that his humanity was being stripped away.

Judge Wallace Tashima:
There were a number of people, young men, who refused to get drafted until their families were released from camp. And of course, government wouldn't accept a condition like that. So a number of people were tried in federal court throughout the West for violating the draft act. And the sentences range anywhere from some got probation, some as much as five years in prison.

Nick Capodice:
So the incarceration lasted until the end of the war. What was life like when it was all over?

Judge Wallace Tashima:
Well, when we first came back, we went to what they called it a hostel, it was run by a church. Almost like a like a bunch of motel, I guess, or even more budget than that. And we lived there for, I would say, almost a year, six months between six months in the year. And my mother owned the house. I could get the house to back and move back. So I know I spent my sixth grade in the hostel in Venice, California.

Hannah McCarthy:
There was no easy return to normal life after this period, with the exception perhaps of rampant racism being the norm, even for a remarkably successful person like Judge Tashima. He graduated Harvard Law School in 1961. He had decent grades and he was interviewed by some major firms. He says people were nice enough, but they just didn't seem anxious to hire him.

Judge Wallace Tashima:
One hiring partner whom I got to know better years later, from a big law firm in Los Angeles. And he said to me, you know, Wally, I'd like to hire you, but I just can't do it because our clients wouldn't stand for it. When he said that, it always occurred to me, well, that's why, you know, these people that I've interviewed with never even sent me a note saying thanks for interviewing.

Hannah McCarthy:
And it wasn't just exclusion from the job market. It was the housing market, too.

Judge Wallace Tashima:
My wife and I were looking for an apartment and certain landlord said, I'm sorry, we can't we can't rent to you. So it was quite open.

Hannah McCarthy:
So much of this is incredibly galling, both morally and constitutionally, but one detail that I find just incredibly sad is the shame that former internees felt four years following this period. It's like Karen said earlier, that weight of being blamed for the attack on Pearl Harbor, the psychological toll of your own government, presuming You guilty without the option of proving your innocence. Karen didn't even learn her father had been a part of a major Supreme Court case challenging Japanese American removal and relocation until she was in grade school. She heard it during a friend's oral report. And she wasn't the only one. Here's Lorraine again.

Lorraine Bannai:
My parents, my grandparents, my aunts and uncles were incarcerated during World War Two. And like many people who had been incarcerated, they never talked about it. And when we were growing up and so I knew I learned about my family's incarceration during ethnic studies, during Asian-American studies, which was really quite shocking and remarkable and horrible.

Nick Capodice:
Did the government ever do anything, admit that these actions were wrong or try to make up for it in some way?

Hannah McCarthy:
The government compensated for some, though not all, of the property and monetary losses to incarcerated people following the end of World War Two. But it wasn't until nineteen eighty eight through the combined efforts of a formerly interned California congressman and the Japanese American Citizens League that the Civil Liberties Act was passed and surviving internees were granted twenty thousand dollars apiece. The language of the act makes clear that the government actions were based on, quote, race prejudice, war hysteria and a failure of political leadership, unquote, rather than national security concerns. But while we're on the subject of what the country did to address the race based force confinement of 120000 thousand Japanese American citizens and nationals. I feel like I can reasonably say not much.

Lorraine Bannai:
This isn't taught, it's not required, it's not taught, I'm on the West Coast, it happened here in Seattle and people don't know about it and there's no requirement that teachers teach it. And so teachers have to find their own way.

Hannah McCarthy:
Karen Korematsu, Judge Wallace Tashima and Lorraine Bannai all emphasize the need for education when it comes to what to do with our legacy of incarceration camps. And plenty of people can agree that education about our past is important if we don't want to repeat that past. But Lorraine made me think about it in a pretty specific way. So I want to end on this idea. What do we do with this horrible, uncomfortable, racist moment? We learn what was lost, what was not defended in that moment, because the moment that rights are denied to one person, they can be denied to anybody

Lorraine Bannai:
In a specific way is is really the and then they came for us kind of a thing. Right. That that that what we're talking about as far as racism and sexism and ableism and all of that in this country is that it all rises from the same roots. And that's the root of intolerance and ignorance. Right. And so. So. My sense is that it's so important that all of us be allies for each other, not just because it's the right thing to do, but because it could be us next. And if we don't try to uphold dignity and humanity and the law for four other people, we're we're not holding it up for yourself.

Hannah McCarthy:
One last thing I want to say is that this episode is being released at a time when anti-Asian sentiment and hate crimes are being covered widely in the press. This bigotry is known to be "up" right now, but was also probably underreported and insufficiently covered in the past. But to those who are surprised to learn about anti Asian hate in the U.S. or who think this is a sudden thing tied to hateful rhetoric connecting China to the covid-19 pandemic, I feel like this episode demonstrates that we don't have to look back very far to see broad, life altering anti Asian laws and actions and realize that precedent has long been set for anti Asian hate. But of course, that's all we can do, set precedent and the way that we use the past to inform that precedent, whether we choose to learn from our troubling history is kind of up to us.

This episode of Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Jackie Fulton and Mitch Scacchi. Erica Jannik is our executive producer. Music in this episode by Chris Zabriskie, Bio Unit and Zylo Ziko. You can find more resources on Japanese incarceration, the Supreme Court case, Korematsu vs. the United States and of course, everything else we've ever made at Civics101podcast.org. Our pursuit of what is going on and has gone on in this country is never ending. So there will be so much more where this came from. You can make sure you never miss an episode of Civics 101 by following us on Apple podcasts, Spotify or wherever you get your podcasts. Civics 101 supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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Civil Rights: Korematsu v United States

Is it Constitutional for the government to remove and relocate American citizens to remote camps without due process of law? In 1944, SCOTUS said yes.

In 1942, approximately 120,000 Japanese immigrants and Japanese Americans were ordered to leave their homes. They were sent to internment camps in desolate regions of the American West. Fred Korematsu refused to comply. This is the story of his appeal to the Supreme Court and what happens when the judicial branch defers to the military. Our guides for this story are Karen Korematsu, Lorraine Bannai and Judge Wallace Tashima.

Please note: An earlier version of this episode indicated that internment of people of Japanese heritage began a year after Pearl Harbor when in fact the earliest wave of removal and relocation took place just a few months after the attack. This prior version also incorrectly identified Korematsu v U.S. as being the case that upheld Japanese internment. Though many agree this to be the de facto result of the case, Korematsu v U.S. in explicit terms upheld the Constitutionality of the removal and relocation of people of Japanese heritage.

 

Episode Resources

Click here to download a graphic organizer to take notes upon while listening to the episode.

Visit Densho for a wealth of information, including archival materials, chronicling internment during World War II.

Street Law has created wonderful free case summaries for Korematsu, click here for High School and click here for Middle School

Transcript

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

 

Hannah McCarthy: [00:00:05] Let's try a thought experiment. I'd like you to imagine that you're an American citizen. You're an American citizen and always have been. You were born here in California, to be exact. You went to school here, played with the kids on your block, got a B in algebra, hated taking out the trash, had a crush on the kid who taught you how to surf, worked an after school job at the supermarket in town. Life is good. Mostly not perfect, but this is home. And then one Sunday afternoon, you're lying around your living room with some friends and you hear something on the news. The United States has been attacked. This attack means that the country is joining a war, which is reason enough [00:01:00] for You an American citizen to be concerned. But there's another thing. The nation that staged this attack, your parents immigrated from there, and that's why your home is about to turn on. Bars and clubs print hunting licenses, declaring open season on anyone of your heritage. Magazines print articles explaining what physical features distinguish you from other Americans. Businesses hang signs telling you and your family to go back to where you came from. And then the government, your government, issues a curfew. Anyone descended from the country that attacked the United States has to stay indoors between 8:00 p.m. and 6:00 a.m.. And finally, an order comes down, the president will allow the military to remove and relocate whoever [00:02:00] it wants. The military picks You mere months after a foreign nation attacked American soil. You, an American citizen who has never been to that foreign nation are forced out of your home and incarcerated in a camp without due process of law. Because you look like the enemy. Now, here's the question. Does that seem constitutional to you? This is Civics 101, I'm Hannah McCarthy.

 

Nick Capodice: [00:02:37] I'm Nick Capodice.

 

Hannah McCarthy: [00:02:38] And today we're exploring a case that upheld the removal and relocation of 120000 people of Japanese heritage, the majority of them American citizens, to isolated camps for nearly four years during World War Two. We're talking about the 1944 case, Korematsu versus the United States.

 

Karen Korematsu: [00:02:58] My father learned about the Constitution [00:03:00] in high school. He was born in Oakland, California, attended Castlemont High School, was just like any other American kid and hung out with his friends. But he was paying attention to the Constitution that day in class and he thought he had rights as an American citizen. And the Executive Order 9066 was issued.

 

Hannah McCarthy: [00:03:25] This is Karen Korematsu, daughter of the late Fred Korematsu, the plaintiff in Korematsu v. United States. She founded and serves as director of the Fred Korematsu Institute for Civil Rights and Education.

 

Nick Capodice: [00:03:38] And what is Executive Order 9066?

 

Karen Korematsu: [00:03:40] The executive order gave the military the authority to forcibly remove anyone of Japanese ancestry from the West Coast.

 

Hannah McCarthy: [00:03:49] This order was issued at the height of anti Japanese sentiment in the United States following the attack on Pearl Harbor in Honolulu, Hawaii, on December 7th, 1941 by [00:04:00] the Imperial Japanese Navy, Air Service

 

Nick Capodice: [00:04:03] And everything you described at the beginning of this episode, the signs on businesses, the magazine articles, the hunting licenses, the curfew did all of that happened to Japanese immigrants and Japanese Americans in the U.S.?

 

Hannah McCarthy: [00:04:16] It really did. It also needs to be said that anti Asian sentiment was already rampant in the United States. The Japanese military attacked Pearl Harbor, the U.S. entered World War to Japan, officially became an enemy nation. And the reasoning was, well, you can't separate the sheep from the wolves in sheep's clothing. There may be spies and saboteurs among Japanese immigrants and Japanese Americans. So lock them all up. Racism is necessarily not separate from that. That is something to keep in mind when we get to Fred Korematsu case. And speaking of the case, Karen Korematsu, Fred's daughter, is an expert on it now, but she didn't even learn about it until she was 16 [00:05:00] when a school friend of hers mentioned Korematsu versus the United States in a book report.

 

Nick Capodice: [00:05:06] And are you telling me that Karen Korematsu didn't know her father was part of this monumental Supreme Court case until she went to high school? How is that possible?

 

Karen Korematsu: [00:05:17] I always ask the question, well, why didn't anybody talk about this? Well, it wasn't it wasn't acceptable at that time to even speak up. At least now what we're trying to do is now we need to speak up, as my father said. But at that time, it wasn't acceptable in our culture, in the Japanese, in Asian culture, you're you're you're quiet. You're not you don't make trouble. You you go along, you do what you're told, especially if it's from the government. You don't make waves. And they all wanted to prove that they were good American citizens and to follow along with the government's orders. You can't fault [00:06:00] anyone for that,

 

Nick Capodice: [00:06:01] And the government's orders were what exactly?

 

Lorraine Bannai: [00:06:04] So President Roosevelt issued executive order nine six six allowing or basically delegating to the secretary of war the ability to broad powers and the ability to remove or alter the movements of anyone, the secretary of war or his designate, SOF, that there was nothing on the face of the order that was directed at Japanese Americans. But everybody knew. And you could tell from the entire history behind it that it was really directed at controlling the Japanese American population.

 

Hannah McCarthy: [00:06:39] This is Lorraine Bannai, director of the Fred Korematsu Center for Law and Equality and Professor of Lawyering Skills at Seattle University School of Law.

 

Lorraine Bannai: [00:06:48] Pursuant to Executive Order 9066, Gen. John L. DeWitt, who was the commander of the Western defense, issued a series of orders against the Japanese American [00:07:00] community. He first issued a curfew order that required Japanese Americans to stay near their home and to stay in their homes during certain hours. And that was followed by a series of one hundred and eight civilian exclusion orders requiring Japanese Americans in zone after zone after zone on the West Coast to report for removal from the West Coast. And this included the entire population, including babes in arms and the very elderly. Two thirds of the people who were removed up to one hundred ten thousand one hundred twenty thousand people were like my parents and like Fred, American citizens by birth. So Japanese Americans were first being moved to temporary confinement centers and then ultimately to 10 camps in desolate regions across the United States.

 

Hannah McCarthy: [00:07:54] These were called internment camps, internment, meaning to imprison somebody, especially [00:08:00] during wartime, and Japanese immigrant and Japanese American internment. That is an entire civics one on one episode unto itself. But I do want to make clear before we get to Fred Korematsu case, both Karen and Lorraine refer to the government's actions as incarceration. These remote camps were surrounded by barbed wire. They were presided over by armed guards who had orders to shoot anybody who tried to leave.

 

Nick Capodice: [00:08:28] But did people do when these orders came down? I mean, I'm thinking about this moment you described at the beginning of the episode. You're you're going on with your life and suddenly your own government starts treating you like the enemy. How do people respond?

 

Lorraine Bannai: [00:08:42] Deputized Americans reacted to this in a myriad of different ways. There's a kind of a story up there that's kind of like Japanese Americans cooperated and went. And and it's really important, I think, that we kind of like diffuse that. Many Japanese Americans complied. They [00:09:00] complied for any number of reasons to show their loyalty, to show they were loyal citizens, because they were frightened, because they were scared, because they didn't know what's going to happen, because they didn't want to be separated from their parents or their children or whatever. So the bulk of Japanese Americans complied. A few did not. And that's kind of what the story is about, is that a few men did not comply.

 

Hannah McCarthy: [00:09:29] Speaking of noncompliance, let's get back to Fred Korematsu.

 

Lorraine Bannai: [00:09:36] Fred Korematsu was a twenty two year old welder living in Oakland, California, when he decided to refuse to report for removal. He chose instead to remain in Oakland with his Italian American fiancee, basically to remain with the woman he loved in the place that had always been his home and decided to stay behind when his [00:10:00] family was taken away.

 

Hannah McCarthy: [00:10:01] I should also say Fred Korematsu also just knew this wasn't right.

 

Karen Korematsu: [00:10:06] He just thought that the government was wrong to put people in prison just because they look like the enemy. He was born in this country who is an American citizen. He had never been to Japan. He was the last of his family. It wasn't even until two thousand and one in the spring was the first time he he even went to Japan. My my husband I took took my parents.

 

Hannah McCarthy: [00:10:30] There was another significant court case, by the way, that had already upheld the constitutionality of the curfew order, the one requiring Japanese Americans to stay indoors during certain hours. That one called Hirabayashi the United States, which is important to mention because of the argument the government used against Gordon Hirabayashi, because there was no evidence of espionage or sabotage. They went with this. Japanese Americans are prone to disloyalty [00:11:00] because of a natural solidarity with their motherland.

 

Lorraine Bannai: [00:11:04] We have this litany of, quote, characteristics. The Japanese had to say that given those characteristics, the military could, in its judgment, reasonably believe that the Japanese people posed a threat to the country and that the court had to accept that determination. So Hirabayashi upheld the curfew.

 

Hannah McCarthy: [00:11:28] The Supreme Court agreed with the government. Chief Justice Harlan Stone wrote that racial discrimination was acceptable because, quote, In time of war, residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry, end quote. Again, this is the case that upheld the curfew order.

 

Lorraine Bannai: [00:11:51] A year and a half later, the Korematsu case comes up before the Supreme Court. And this order was different. The Korematsu [00:12:00] case was about the removal of Japanese Americans from their homes, very, very much more intrusive order than one that simply is a curfew that you can't leave your home at night. But the court said that for all the reasons we upheld the curfew order in Hirabayashi, we uphold the removal orders and Korematsu.

 

Hannah McCarthy: [00:12:23] So the Supreme Court first rules that people of Japanese descent have the racial characteristic of loyalty to Japan that makes them prone to pose a threat to the United States. Then the court rules that the military removal order in the case of Fred Korematsu is constitutional.

 

Lorraine Bannai: [00:12:41] And in saying that the court upheld the military order and for Mozza, based on the conclusion that this was a military necessity, a military urgency, and it wasn't about race. In other words, this was a military decision. It wasn't a race based decision. [00:13:00] And the court actually said Korematsu was not excluded from the military area because of any hostility to him or his race. He was excluded because of the military urgency of the situation.

 

Nick Capodice: [00:13:14] But the Fred Korematsu case is following this decision that is based on race. And it certainly seems like the incarceration of Japanese immigrants and Japanese Americans must be based on race, because how else do you decide to isolate people of certain descent, but based upon their descent?

 

Lorraine Bannai: [00:13:31] What's really important here is that every indication was that the removal orders were about race. They were targeted only at Japanese Americans. And yet the court said this wasn't about race. There was about military necessity. And I can go in to how the big concern we have in so many laws that impact minority [00:14:00] communities. It's that story. It's like this isn't about race. It's about national security. This isn't about race. It's about public health. The government argued this was a military necessity. The military made a judgment that it was necessary to protect our country. And so it's constitutional that basically the court needs to uphold it because it's within the executive's constitutional power.

 

Nick Capodice: [00:14:33] So what happened to Fred Korematsu?

 

Hannah McCarthy: [00:14:36] Well, he had already been convicted by a lower court, this Supreme Court case upheld that conviction. He received five years probation and a federal record. And when we do talk about what happened to Fred Korematsu, I also want people to remember that though this seems like something that happened a long time ago in a different kind of America, Fred [00:15:00] and his legal team did not expect to lose this appeal. And the court was not unanimous in upholding Japanese immigrant and Japanese American removal and relocation.

 

Karen Korematsu: [00:15:11] My father thought for sure that by the time that his case reached the Supreme Court, the Supreme Court would say it was unconstitutional. That's how much he believed in in in our democratic process, you know, and and that in the Supreme Court and the Constitution, because all due process of law was denied. So they didn't have access to an attorney, to a hearing. And they there was no charges against them because quote of the executive order. Right. So that's the process. And so by the time that my father's case, because of appeals was heard by the Supreme Court on December 18th, 1944, [00:16:00] it was not a unanimous decision by the Supreme Court. And that's also important. And I encourage students and teachers to to look at the dissenting opinions because the dissenting opinions are still relevant today. The dissenting opinions of of Justice Robert Jackson, who said that might refer to my father's Supreme Court case as this is around like a loaded weapon ready for anyone to pick up and use with a plausible cause. I'm paraphrasing here, Justice Murphy. And forty four call it the ugly abyss of racism. That's very telling. And and Justice Owen Roberts called it unconstitutional

 

Hannah McCarthy: [00:16:47] After Fred's conviction was upheld. He was sent to the Central Utah War Relocation Center in Topaz, Utah.

 

Lorraine Bannai: [00:16:54] One thing is that he was ostracized by his own community for taking the stand. And [00:17:00] secondly, he was criticized for basically doing this for selfish reasons. He wanted to stay with his girlfriend. It wasn't like he was doing this as an act of civil disobedience, right out of principle for the for the Constitution and make a statement about the Constitution.

 

Karen Korematsu: [00:17:22] He had a federal prison record for almost 40 years. He could even work for the government. There's a lot of things he couldn't do, but most importantly. He did this for for all American citizens because he didn't want something like the Japanese American incarceration to happen again. That's why after his conviction was was overturned in 1983, he found his voice with encouragement from his legal team to crisscross this country and speak to everyone about his own story and about the treatment [00:18:00] of Japanese Americans and the aftermath.

 

Nick Capodice: [00:18:03] Ok, so Korematsu v. U.S. was overturned in 1983.

 

Hannah McCarthy: [00:18:07] No, Fred Korematsu conviction was overturned in 1983. The Supreme Court case, however, was not overruled. Still, it's a story worth telling because it reveals exactly how undeniably unjustified the government's actions were in this case. One last thing I haven't yet mentioned about Professor Lorraine Bannai. She was on Fred Korematsu legal team when his conviction was overturned in 1983.

 

Lorraine Bannai: [00:18:35] During World War Two, the government suppressed, altered and destroyed material evidence while it was arguing its case before the U.S. Supreme Court. General DeWitt, who was the commander of the Western defense who carried out the program of curfew and removal, had written a final report that basically summed up his reasons for [00:19:00] the incarceration of what he based his decisions on. And it was discovered that the government had given a copy of this report to the Supreme Court, but it was an altered version. So. General DeWitt had written his final report, and in that report, he said that there was no way to tell loyal Japanese Americans until Japanese Americans, no matter how much time you had truly revealing the racist reasoning behind the incarceration, the Japanese were as a group disloyal and you couldn't figure out a loyal one, disloyal one, no matter how much time you have. At the same time, the government was arguing to the Supreme Court that the reason for the incarceration was because there was insufficient time to tell the loyal from the disloyal, which was totally contradicted by DeWitt's reasoning.

 

Nick Capodice: [00:19:57] So DeWitt was saying there is no amount of time [00:20:00] or energy that could determine who's loyal and who is not. At the same time, the government is telling the court, we had to do this because we didn't have enough time.

 

Hannah McCarthy: [00:20:09] Right. DeWitt's report exposed the fact that he made a blatantly racist choice when it came to the execution of executive order 9066. All Japanese immigrants and Japanese Americans are suspect, period. The government changed that report when they argued before the court and ordered all copies of DeWitt's original report destroyed. So the copies were collected and burned.

 

Lorraine Bannai: [00:20:34] What survived, however, was a soldier's memo that said Today I destroyed all these copies of this report along with one co- one surviving copy of the original report

 

Nick Capodice: [00:20:45] Really says some soldier was crossing the T's and dotting his eyes and left behind proof of this evidence destruction. So I'm guessing after this, Lorrain in the rest of the legal team pretty much had this case in the bag.

 

Hannah McCarthy: [00:21:00] They [00:21:00] did. And Fred Korematsu conviction was, as you know, overturned. But of course, the facts of the case remain and the facts are pretty depressing.

 

Lorraine Bannai: [00:21:15] It was really pretty amazing and sad. I mean, I think when. When my parents when many Japanese Americans who had been incarcerated learned of this evidence, it was great because we could reopen the cases. But it was heartbreaking to know not only that their incarceration had been wrong, but that there had been this massive coverup to lie to the Supreme Court to justify their incarceration.

 

Nick Capodice: [00:21:45] All right. We'll give it to me straight. At what point was Korematsu v. United States finally actually overturned?

 

Hannah McCarthy: [00:21:52] So this one's a little trickier. I want to introduce you to one more guest. This is Judge Wallace Tashima of the [00:22:00] U.S. Court of Appeals for the Ninth Circuit. He is the third Asian-American and first Japanese American to be appointed to the U.S. Court of Appeals. He has had a long and illustrious career in law. He is also a former internee of the Post and War Relocation Center in southwestern Arizona, a story that we'll hear in our episode on internment. But as we were speaking about his experiences, I asked him to weigh in on Korematsu and whether or not it actually has been overruled. Because the truth is, it is not clear to me.

 

Judge Wallace Tashima: [00:22:33] You know, usually when a case report overrules one of its own cases, it only does it because it has to reach a different result. I mean, the primary example is the Brown vs. Board of Education member. Before that, the constitutional doctrine was the government could comply with the equal protection laws by having separate facilities. Brown versus Board of Education [00:23:00] overruled Plessy versus that the court had to overrule the other case or decide. That's not the kind of ruling that happened in way.

 

Hannah McCarthy: [00:23:13] That would be a 2018 case called Trump v. Hawaii, which challenged President Trump's executive order restricting travel to the U.S. by people of certain, notably predominantly Muslim nations. The Supreme Court reversed a Court of Appeals decision that this order likely violated the Immigration and Nationality Act and ruled that the president did, in fact, have the power to restrict that travel. Both the opinion and the dissent referenced Korematsu. Chief Justice Roberts wrote the opinion.

 

Judge Wallace Tashima: [00:23:44] Then he said the dissent referenced requirements affords the court the opportunity to make express what is already obvious. And then he quotes Justice Murphy. Korematsu is wrong. The day was decided has been overruled [00:24:00] by the court of history. And to be clear, it has no place in law under the Constitution. Well, that's all good, and I'm sure you know that. But it's not something that the court had to do in order to reach the result because in spite of, you know, Justice Sotomayor is dissent. The majority still said that, you know, this this proclamation by President Trump is constitutional, so it's really kind of odd, I'd say almost bizarre way case.

 

Hannah McCarthy: [00:24:36] So is that an overruling? Judge Tashima leans yes, but calls it a weird one. People may generally agree that, quote, being overruled in the court of history is being overruled. And again, legal scholars haven't really sunk their teeth into this one yet. Lorraine Bannai and Karen Korematsu being too strong outliers.

 

Lorraine Bannai: [00:24:58] First of all, he didn't say [00:25:00] he overruled it. So Justice Roberts, that has been overruled by the court of history, so he didn't overrule it. We don't even know what the court of history is, actually. But even when he said it's been overruled by the court of history, he didn't specify what he was overruling. Did he mean we can never incarcerate one hundred and twenty thousand persons on the basis of race again? But what's most important to those of us who are so disappointed in what he did was that it's really clear that he didn't overrule one of the most important things from Korematsu or several important things from form UTSU. One is the idea that courts should defer on issues of national security, that basically Korematsu was so dangerous because the Supreme Court said if and if the military wants to do this, if it's a matter of military necessity, the court doesn't have a role in in questioning that

 

Karen Korematsu: [00:25:59] When [00:26:00] when Chief Justice Roberts said that Korematsu was overruled in the court of history is dicta that's a legal term, meaning it was just a reference to the case. It did not. There was no overruling in support of the decision of Trump vs. Hawaii. So, yes, who knows what would happen. I mean, this is what my father was always afraid of, is somehow his case would be would be cited for for, you know, as a precedent in another legal case. And that and that still could happen.

 

Nick Capodice: [00:26:34] See, that is something that is particularly eerie to me about this case, like the famous relationship between Plessy v. Ferguson and Brown v. Board. You know, Brown versus Board of Education overruled Plessy v. Ferguson. But Korematsu has not been explicitly overruled in the same way. And essentially the mass incarceration of people in the U.S. without due process has not [00:27:00] been canceled in the books, even though pretty much everyone agrees that it's wrong.

 

Judge Wallace Tashima: [00:27:05] Well, I think it's important to study it, to understand how it came about. And I think to also understand that Korematsu, I'm sure at the time it was decided was a reflection of the great sentiment in the country, partly because America was at war with Japan. I think study it, one to assess, well, was it just, was it not just? If you conclude it was unjust then, you know, I think studying it is going to help you maintain your visual not to let something like that happen again to another group. That's the worry.

 

Hannah McCarthy: [00:27:45] Part of keeping that conversation alive, according to Lorraine Banai, is that it serves as a reminder of how easily this kind of thing can happen in America.

 

Lorraine Bannai: [00:27:55] That this isn't just a story about some some crazy people who [00:28:00] decided to be racist, incarcerate Japanese Americans. It's a story about an entire American public that left this happened. And to be able to learn from that, how easy it is for us to walk over that line if we're not paying attention.

 

Hannah McCarthy: [00:28:20] You know, ultimately, the lesson is really twofold for Karen. One element is this long arc of history that leads to racist actions that we have to understand.

 

Karen Korematsu: [00:28:31] What people don't realize is the intersectionality of of the the history of this country, the racism, the marginalization, the inhumanity. That's why history is so important. People think, well, why do you have to teach history or why do we have to have Asian Pacific Islander history or why do we have to have black history? Well, because we haven't learned the lessons of history, obviously.

 

Hannah McCarthy: [00:28:59] And [00:29:00] the other part of the lesson is, well, what her dad did.

 

Karen Korematsu: [00:29:05] Would like everyone to remember my father's words stand up for what is right and don't be afraid to speak up.

 

Hannah McCarthy: [00:29:25] If you're thinking that we barely scratched the surface of Japanese incarceration during World War Two in this episode, we agree and we have an addendum in the works. Check out the feed for more from Karen Korematsu, Lorraine Bannai and Judge Wallace Tashima. Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice.

 

Nick Capodice: [00:29:45] Our staff includes Jackie Fulton, Mitch Scacchi and Erica Janik is our executive producer. Music in this episode by Alex Mason, Bio Unit Croawander, Hinterheim and Xylo Zico.

 

Hannah McCarthy: [00:29:57] You can learn a lot more about Fred Korematsu and [00:30:00] Japanese incarceration at our website, civics101podcast.org. While you're there, you'll find a link to densho.org, which I cannot recommend enough for learning more about the incarceration during World War Two.

 

Nick Capodice: [00:30:13] And remember, you can listen to any of our hundreds of episodes and how American democracy works on Apple podcast, Spotify or your podcast app of choice or our website civics101podcast.org.

 

Hannah McCarthy: [00:30:25] Civics 101 supported in part by the Corporation for Public Broadcasting and is a production of NhPR, New Hampshire Public Radio.

 



 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Civil Rights: Plessy v Ferguson

Today in our series on civil rights Supreme Court cases, we examine the anticanon decision of Plessy v Ferguson. Steven Luxenberg, Kenneth Mack, Keith Plessy and Phoebe Ferguson walk us through the story of Homer Plessy, the Separate Car Act of 1890, an infamous opinion and a famous dissent.

 

Episode Resources

Click here to download a graphic organizer to take notes upon while listening to the episode

Click here for a case summary and primary source activity on the case from Street Law

 

Episode segments


Transcript

Plessy final all.mp3

Adia Samba Quee: [00:00:02] Civics 101 is supported in part by the Corporation for Public Broadcasting.

Nick Capodice: [00:00:09] June 7th, 1892, New Orleans, Louisiana, a 30 year old Black man named Homer Plessy buys a ticket for the 415 train to Covington. The train arrives at the station on the corner of Press and Royal, and it is made up of cars for white passengers and cars for Black passengers, Plessy steps into the car for white passengers and takes a seat. The conductor asks Plessy his race. Plessy tells him. And then the conductor insists he has to move to the car for Black riders. Plessy refuses. And a detective who just happens to be there arrests Plessy and removes him from the car. These are the events that resulted in a landmark Supreme Court decision, an anticanon decision, one universally agreed upon as a mistake. A decision that I thought I knew about, but was dead wrong. You're listening to Civics 101, I'm Nick Capodice.

Hannah McCarthy: [00:01:17] I'm Hannah McCarthy,

Nick Capodice: [00:01:18] And today we're talking about an event that was not just an individual act of protest, an arrest that was anything but coincidental, and contrary to what I've learned beforehand, a decision that did not establish the separate but equal doctrine, Plessy v. Ferguson, 1896

Hannah McCarthy: [00:01:36] So far. Nick, you've talked a lot about what this case is not. Can we start with what it is?

Nick Capodice: [00:01:43] Yeah. In 1890, the state of Louisiana passed the Separate Car Act. This was one of the state's Jim Crow laws, anti-Black laws that enforced segregation. And this act required that trains have, "equal but separate accommodations" for Black and white passengers. But before we get started in this case, the history of separation goes way back.

Steven Luxenberg: [00:02:07] Separation, which is the word they used in the 19th century as a concept, was really born in the north on a railroad line that went from Boston to Salem, opened in 1838.

Nick Capodice: [00:02:19] This is Stephen Luxenberg, associate editor at The Washington Post and author of Separate the Story of Plessy v. Ferguson and America's Journey from Slavery to Segregation.

Steven Luxenberg: [00:02:28] And Throughout the North, before the Civil War, there were instances of separation on public transportation. There were people fighting against that, mostly from the abolitionist movement, the group of radicals that said that slavery should be abolished right now. Some of the precedents later cited in Plessy come from the north before the civil war, where courts ruled that separation was allowable. It was a reasonable rule by the railroad.

Hannah McCarthy: [00:02:56] So a separation which we later referred to as segregation, it came out of the North.

Nick Capodice: [00:03:02] It did. Steven told me that separation wasn't possible in states that were practicing enslavement.

Steven Luxenberg: [00:03:08] But there were always people fighting, resisting in the 19th century against slavery first, then against civil rights violations. Everything is new in this era. Everything is new. The famous Black journalist Ida B Wells, as a 20 year old, is refusing in 1882 to ride in the, quote, colored car. She's not got anybody behind her, she says. Twice she goes to the Tennessee Supreme Court. She loses kind of the deck is rigged against her she learns.

Nick Capodice: [00:03:40] Ida B. Wells is act of brave resistance was ten years before Homer Plessy got on that train in New Orleans. She was initially awarded five hundred dollars in damages, but the Tennessee state Supreme Court overturned it and she was forced to repay the money as well as court fees.

Hannah McCarthy: [00:03:55] Ok, so Ida B. Wells is one of the first to challenge these civil rights issues in the courts. And when Steve says everything is new, what does he mean?

Nick Capodice: [00:04:04] The nation was struggling to figure out how to make the reconstruction amendments, the newly passed 13th, 14th and 15th Amendments actually apply. And this happened when people like Wells put their bodies on the line. But while her protest was an individual action, Plessy's was not.

Hannah McCarthy: [00:04:24] OK. Right. And getting back to Homer Plessy on that day in 1890. What do we know about him? And who was Ferguson?

Keith Plessy: [00:04:31] Homer Plessy was a Creole African descent gentleman who was born on March the 17th. That was St. Patrick's Day. My name is Keith Plessy and I am a fourth generation descendant of Homer Plessy.

Phoebe Ferguson: [00:04:48] Judge Ferguson was not from New Orleans. He was not from Louisiana. Judge Ferguson was born on Martha's Vineyard. My name is Phoebe Ferguson and I am the great great granddaughter of Judge John Howard Ferguson.

Nick Capodice: [00:05:04] Keith and Phoebe head the Plessy and Ferguson Foundation. They visit schools and institutions across the country to share the story of the case and their message that mutual history can be a tool to create unity and understanding.

Keith Plessy: [00:05:17] It's no longer Plessy versus Ferguson is Plessy and Ferguson.

Nick Capodice: [00:05:24] Holmer Plessy's father died at a young age and his mother remarried a shoemaker named Victor Dupart. And Homer learned to be a shoemaker from a stepfather. But he also went with him to community meetings where he learned about civil rights activism.

Keith Plessy: [00:05:38] When the laws came out, he had already been an activist in the neighborhood, in the Treme neighborhood, where he was advocating to keep public schools open.

Nick Capodice: [00:05:46] Homer Plessy joined the Commite Citoyen in Louisiana, which I will refer to here on out as the Citizens Committee. Their full title actually is a bit longer. Steve Luxenberg found their original stationery.

Steven Luxenberg: [00:05:59] They needed a PR person to tell them to get a better name that was easier to say, but the stationery was the committee to challenge the constitutionality of the separate car act

Hannah McCarthy: [00:06:11] The committee's sole purpose was to challenge this one law.

Nick Capodice: [00:06:16] Yeah, and they ran test cases, carefully orchestrated events to purposefully violate the law. And Plessy offered to be the second test.

Keith Plessy: [00:06:25] He looked like a white person. So that was one of the criteria of his volunteering for that protest. And when he approached the train depot, no one noticed him as a person of color, purchased that ticket without any dispute, boarded the first class train car that was designated for whites only and sat down and no one was disturbed by his presence. But when the conductor approached him and asked him, was he a colored man? He responded, yes. And he said you would have to move to the car for your race. And he refused. So the arresting officer stepped up and removed him from the train and made it look real good. It was it was orchestrated well, so they threw him off the train. Physically. They didn't make it look like it was a nice departure for him.

Hannah McCarthy: [00:07:15] Everybody was in on it?

Nick Capodice: [00:07:17] Everybody was in on it! The conductor's actions were rehearsed. The citizen's committee hired that detective to arrest him and write a report. Even the railroad company itself was involved and in support of it because for one thing, it was more expensive to have separate cars.

Keith Plessy: [00:07:30] In those days. If you were interrupting, which was probably one of the most prominent and busy depots, the Press Street wharf, he interrupted business that brought the cotton to be processed to the train depot that day. Normally a person that did something like that in those times would have been hung from a tree, might have never made it to jail, but he was safely whisked off to jail where he was booked, and then he was able to pay the fine after a night in jail to get out because the bail was set for him and the money was set, the budget was set to remove him.

Hannah McCarthy: [00:08:12] So Homer Plessy is arrested and released on bail. How does this case get to the Supreme Court?

Nick Capodice: [00:08:19] The first trial was Homer Plessy v. the State of Louisiana. And his lawyers argue that the separate train car act violated Homer Plessy's rights under the 13th and 14th Amendments. And the judge who heard the case, John Howard Ferguson.

Hannah McCarthy: [00:08:33] There's Ferguson.

Phoebe Ferguson: [00:08:35] They make a presentation. Judge Ferguson says says you've made a very good presentation. And I would like to think about that. We will rejoin in two weeks. And two weeks they come back to the court. Judge Ferguson says he's considered, however, he decides that Louisiana's law, our state, our state's rights and the state has the right to determine whether or not Black and white passengers can ride together. So he upholds the Louisiana state law.

Nick Capodice: [00:09:06] The citizens committee appealed it to the state Supreme Court, which upheld Ferguson's decision. And finally in 1896, they appealed it to the United States Supreme Court, which ruled in favor of Judge Ferguson.

Hannah McCarthy: [00:09:20] What was the vote?

Nick Capodice: [00:09:21] Seven to one, one judge abstained because he had a sick family member at the time. The opinion was written by Justice Henry Billings Brown, and the lone dissenter was Justice John Marshall Harlan.

Kenneth Mack: [00:09:33] John Marshall Harlan, the former slave owner, is the person who dissents and Plessy vs. Ferguson. And Henry Billings Brown, who's from Massachusetts. You know, the kind of cradle of abolition, who's going to Yale and Harvard Law School is the one who writes the majority opinion. So irony of ironies.

Nick Capodice: [00:09:52] This is Kenneth Mack. He's the inaugural Laurence D. Beale professor of law and affiliate professor of history at Harvard University. He walked me through Justice Brown's opinion.

Kenneth Mack: [00:10:04] You know, the basic claim of Plessy and his lawyers is that the statute is unconstitutional under the 14th Amendment because it's discriminatory against African-Americans. Brown has to figure out a bunch of things. First, he talks about political versus social equality. This is all over the rhetoric of white southerners, judges, lots of people after the civil war. They say that the 14th and 15th Amendments gave African-Americans civil and political equality, but they didn't give them social equality. And they say this all the time. What they really mean is that if we don't want to associate with Black people, we don't have to associate with Black people. We don't have to accept Black people into our houses. We don't have to be friends with Black people. The law can't make us do that. Well, the question is, well, is, is a statute that says that you have to sit in separate coaches by race. Is that about social equality? What's a piece of legislation that's not white people choosing not to be friends with Black people? That's a state law saying that Black people and white people can't sit in the same coach. So white southerners reason from the kind of social equality argument to the fact that they they can pass statutes mandating that people be separate by race within state sponsored institutions like schools or within private institutions like railroad cars. And they say that's the same thing as that. That's just social. The law is just about social equality. It's not about civil or political equality, which are the things that the 14th and 15th Amendments cover.

Hannah McCarthy: [00:11:50] Justice Brown is saying that this law is not about civil or political equality. It's about unenforceable social equality.

Nick Capodice: [00:12:01] Yes. And to further justify it, he points to a number of previous cases that said railroads could separate passengers. But there is a problem with that.

Kenneth Mack: [00:12:10] The problem is that almost all of those cases are before the civil war. So the question is, well, you know, did the 14th Amendment change that? And Brown just sort of blinks that. He doesn't acknowledge that the actually the 14th Amendment did something.

Nick Capodice: [00:12:26] Kenneth said it was an extremely narrow, extremely specific minute reading of the 14th Amendment, where he acknowledged, yes, the amendment was created to enforce equality, but that it, quote, could not have been intended to abolish distinction based upon color. And then we come to the lone, now famous dissent of Justice Harlan.

Kenneth Mack: [00:12:47] I mean, I think Harlan's making two or three points. One is that the 13th and 14th Amendment changed things, that they gave new constitutional rights that weren't there before and that they were supposed to change both the framework of citizenship and the racial order. You know, so before these were enacted, you know, you could use law, you could segregate, you could you can make white people superior, but 13th and 14th Amendment changed things. And the second thing he's saying is basically this is not neutral. Everybody knows why the statute was enacted. Everybody knows the symbolic import of this is to keep Black people out of railroad cars where white people ride because Black people are presumed to be inferior. He is saying, well, you can't use law to erect white supremacy. And he's saying that's what this statute does.

Nick Capodice: [00:13:46] I want to quickly add here, this was not Harlan's first dissent on this subject. He was the only dissent in what is called the civil rights cases of 1883, a decision that said that the federal government could not outlaw racial discrimination by private individuals. In 1906, he gave his family Bible to the Supreme Court. And since then, every single justice has signed their name within it. Justice David Souter said that signing his name in the Harlan Bible was, quote, the most humbling thing I have ever done in my entire life.

Hannah McCarthy: [00:14:18] Something that you mentioned earlier that I want to get straight is that you thought this was a case that cemented the separate but equal doctrine, but you learned that that's not necessarily true.

Nick Capodice: [00:14:30] Yeah, it is and it isn't true. This decision, in essence, yes. Prevented the constitutional challenges to racial segregation for over half a century. And the words separate but equal doctrine were on my Plessy v. Ferguson flashcards in school. But Steve Luxenberg corrected this for me.

Steven Luxenberg: [00:14:49] So I see a lot of the shorthand that my journalistic brethren use is the Supreme Court established the doctrine of separate but equal and made it the law of the land. And for Civics 101, let's talk about both parts of that sentence. What is a doctrine? We can give it a lot of synonyms: an order, an established set of rules. What you would expect if the Supreme Court had established a doctrine that there would be a clear doctrine in the majority opinion. But if you read the majority opinion, there's no doctrine. Now, did it have the effect of sanctioning a custom that had been going on? Yes, it had that effect. Did the Supreme Court make it the law of the land? It's the judicial branch. It's not the legislative branch. It can't make laws. You can say, Steve, you're parsing words here. Didn't it have the effect of being the law of the land? And the answer is no. It didn't really did not apply because it was a state legislature acting in Louisiana. Other state legislatures had to act to create laws that were similar. They they did in some cases, but not everywhere, not the law of the land.

Nick Capodice: [00:16:04] Steve says the blame for separate does not lie with this case.

Steven Luxenberg: [00:16:08] If we lay the blame on those nine justices of the Supreme Court, eight justices in this case of the Supreme Court, we are taking ourselves off of the hook. We have to own the doctrine of separate but equal, which began in the north in the 1830s. We have to accept that it was already the custom of the country. It's not the Supreme Court's fault. It is all of our faults.

Nick Capodice: [00:16:37] And to reinforce what Steve is saying here, the words separate but equal are nowhere in the decision.

Hannah McCarthy: [00:16:45] Nick, before we wrap up, you know, we always try to find modern reverberations of these Supreme Court opinions. And I know that the Plessy decision was overturned in 1954 in Brown vs. Board of Education of Topeka, the case that started the path to desegregation. But is there anything from Plessy that is still with us today?

Nick Capodice: [00:17:09] Kenneth Mack left me with this.

Kenneth Mack: [00:17:11] It's quite relevant today. The case was about how to think about laws or public policies that were alleged to be discriminatory against one race, in particular discriminatory against African-Americans who had historically been discriminated against, the court goes out of its way to say that the law was neutral, the segregation statute was neutral. Sometimes it looks as though we can find a nondiscriminatory neutral purpose. But to do that is simply to blink reality. So, for instance, um, you know, the recent Georgia voting statute.

archival: [00:18:00] Georgia Republican lawmakers have passed a law on a party line vote or overhauling the election rules in that state. They say the law will help protect against voter fraud. But Democrats and critics say the law disenfranchizes primarily people of color and the fraud claims have no basis, in fact...

Kenneth Mack: [00:18:19] Is this a neutral enactment or is this an enactment where if you look at the context, we all know who the act will fall most heavily on, and we can always articulate neutral reasons for these things. And in fact, that's the lesson of Plessy. That a bunch of very, very smart Supreme Court justices can articulate neutral reasons that the larger society could articulate neutral reasons and that it's necessary to dig a little deeper and to look at the context, the way that Harlan looked at it, to figure out what's really going on.

Hannah McCarthy: [00:19:09] I think one of the major things they take away from this story is that from Ida Wells to Homer Plessy to Claudette Colvin to the four students who sat down at a Woolworth's lunch counter in Greensboro. So much of the long civil rights movement involves acts of sacrifice, of people being told to move. And saying no.

Nick Capodice: [00:19:45] That is a picture wrap on Plessy v. Ferguson. We got more civil rights cases in the Supreme Court headed your way. So stay a while and listen. Today's episode was produced by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton. And Erika Janik is our executive producer. Music in this episode by Yung Kartz, Scott Holmes, Ikimashu Oi and Chris Zabriskie. To hear about the other cases in this series or to hear any of our hundreds of episodes, follow us on Apple podcasts, Spotify or your podcast app o' Choice. You can also visit our Web site, civics101podcast.org. All of our new episodes have materials for educators teaching these subjects. And while we're here, why not be our friend on Twitter @civics101pod? Come on by. Say hello. Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Civil Rights: Dred Scott v Sandford

In 1846, Dred and Harriet Scott were living in St. Louis, Missouri with their two daughters. They were enslaved and launched a not uncommon petition: a lawsuit for their freedom. Eleven years later Chief Justice Roger B. Taney would issue an opinion on their case that not only refused their freedom but attempted to cement the fate of all Black individuals in the United States. Taney would ultimately fail and the Reconstruction Amendments would dash Taney’s opinion in Dred Scott v Sandford, but not before the case was forever cast as a Supreme Court decision gone wrong.

The Scotts’ great great granddaughter, Lynne Jackson, is joined by Chief Judge John R. Tunheim of the U.S. District Court of Minnesota to tell the story of the Scotts and their case.

Click here to download a Graphic Organizer for students to take notes on while listening to the episode.

 

Episode Resources

Lynne Jackson’s Dred Scott Heritage Foundation site offers regular updates on educational programs, efforts to promote the Dred Scott story and the community of descendants preserving their heritage. Please note! THIS is the active website. This is the archived website.

The Old Courthouse museum at Gateway Arch National Park in St. Louis, Missouri is a must-visit. This is also the site of the Dred and Harriet Scott statue that launched Lynne Jackson’s efforts to preserve the Scott story. They are currently undergoing renovations which will include a large exhibit devoted to Dred and Harriet Scott.

We talk about anticanon in this episode and give you a sense of how it’s generally interpreted, but this article by Jamal Greene is a remarkable argument for deeper interrogation of the anticanon cases and why we believe they’re wrong. If you’re a SCOTUS nerd consider this a must-read.

Street Law has created wonderful free case summaries on Scott v Sandford, click here for High School or Middle School

 

Episode Segments



 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.