Founding Documents: The Bill of Rights

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

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

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


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

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

Episode Segments:

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Founding Documents: Bill of Rights


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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

Blue Dot Sessions

Ikimashoo Oi


Scott Gratton


Yung Karts


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


Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Founding Documents: The Federalist and Anti-Federalist Papers

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

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

Episode Clips

More Resources

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

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

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[00:28:11] Dot org.

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

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

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




Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Founding Documents: The Constitution

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

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

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

Episode Clips

More Resources

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

Day-By-Day Summary of the Convention

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

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

James Madison’s Notes from the Convention

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


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

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

The Three-Fifths Compromise

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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

NC: Yeah, those Articles... the U.S. didn’t exactly thrive under the Articles.

HM: Washington has just received word from James Madison who is in session with the Virginia Congress that the assembly is considering amending the Articles of Confederation.

NC: So why is Washington so worried? Things are looking up!

HM: Because it’s very nearly too late. The Articles of Confederation have only been in place for five years and they Do. Not. Work.Things are crumbling. Washington has just heard that small rebellions popping up all over the new nation. People are furious. Post-war debt is crushing the country. One of my favorite parts of this letter to Madison is when Washington talks about how melancholy it makes him to think that they might be “fulfilling the prediction of their transatlantic foe. Leave them to themselves and their government will soon dissolve.”

NC: Ouch. So Britain said this would happen, huh? Like, they told us we couldn’t make it work on our own, and look! Barely any time has passed and they’re basically right.

HM: Yeah. Washington calls it “a triumph for our enemies, for the advocates of despotism.” John Adams actually wrote to John Jay around this time and told him that people in England liked to joke that America would come crawling back, begging to be let back in. And then Britain would let them dangle for awhile and then tell them to buzz off.

NC: Oof. That is so cold! And it’s also the ultimate breakup fantasy, right? Like, juuuust wait. They’ll be sorry. They’re going to try to get me back some day, and I’m gonna say no chance.

HM: Except this breakup took seven years and tens of thousands of people died. Washington basically says, look, Madison, I know I don’t have to tell you this, but this weak government is going to be our downfall. So all I’m going to say is, I sure hope these thirteen states can consider the common good here.

NC: Ok, so Washington sends this letter off and then what? What does Madison do?

HM: Madison’s way ahead of things. Before he even receives Washington’s letter, he’s already got a bill before the Virginia assembly that will appoint delegates for a convention the following summer. A convention to amend the Articles of Confederation.


HM: The bill passes. And other states follow suit.


HM: The time? May 14th, 1787. The place? Philadelphia. What show is this? Civics 101. And I’m Hannah McCarthy.

NC: And I’m Nick Capodice.

HM: And today, we’re taking you to the City of Brotherly Love, to a stuffy chamber in the old Pennsylvania State House.

NC: The very same room where, a decade earlier, a group of men came together to declare themselves independent of their motherland.

HM: This time around they came to reel some of that independence in. This is the story of how our constitution and how it came to be.

HM: Well, first things first, in this episode, we’re going to be talking about the thing that was written in 1787. The document designed to correct a nation that was falling off the rails. So first, there’s a preamble. That’s the part that most people know. And a lot of us learn it through this School House Rock song.

[Quick SHR WTP tease]

NC: It’s some pretty grand language. “Secure the blessings of liberty to ourselves and our posterity.”

HM: Yeah, it starts out lofty. But the Constitution itself is a bit more dry than that.

Linda Monk [00:11:59] OK the Constitution we think of as basically a structure of government.

HM: This is Linda Monk. Otherwise known as “the Constitution Lady.”

LM [cont.]: It's got seven articles and four parchment pages that if you want to look at them article 1 which is Congress -- most people get that wrong and they think it's the president, but no it's Congress -- Congress gets two out of four pages and words in the Constitution count.

HM: Okay? So, very basically, the constitution is a collection of seven articles that explain what the government is - what’s in it? - and how it works. Article One, the Legislative Branch, seems to get the most attention.

LM [00:12:30] So the more words there are a lot of times the more powers there are the framers intended Congress to be the dominant branch of government. And that's where most of the power lie.

HM: Next longest is Article Two, the Executive Branch.

LM [cont.] The president was the piece of the current government that the framers had the hardest time agreeing on. They had lots of different proposals. Finally we came down to a president the method of selection in terms of the electoral college is still one that we debate and are concerned about.

HM: Then comes Article Three, the Judicial Branch.

LM [cont.]The third branch is the judiciary which has the fewest words. But we've come to think of it today as having broader powers.

HM: Article Four covers states and citizenship

LM [cont.] The full faith and credit that states must recognize for instance like the marriages in other states.

HM: Full faith and credit basically means that any state has to respect the acts, records and judicial proceedings of another state. Also deals with interstate felons, new states joining the union, and the Federal government protecting states. Then we’ve got five, the “this thing can be amended” clause.

LM [cont.] The fifth article is what I think is the secret sauce that's the amendment process. We said didn't work a constitution that's not too easy to change because that would make it more like every everyday law versus a constitution that's too hard to change. And then you have revolution instead of amendment.

HM: Six.

LM [cont.] The Sixth Amendment is a supremacy clause that says that the Constitution itself is the supreme law of the land including over other state constitutions.

HM: And last, but certainly not least, lucky seven.

LM [cont.] The Seventh Amendment is where they sign and say what what the process is are going to be from that.

HM: When when Linda says “the process,” she’s talking ratification. Nine states are going to have to vote yes on this document in order to make it stick. So there you go. Seven articles, all wrapped up in a neat little package.


Except it wasn’t neat! It was difficult and contentious and touch-and-go and very, very hot in there. So do you want to know how it happened?

NC: Yes! How did it happen?

HM: Well, Linda gives a lot of the credit to James Madison. Linda really, really loves James Madison.

LM [00:07:27] Oh, who can't love James Madison? He's my hunka burning constitutionalism.

HM: According to Linda, Madison is different from the other politicians. Compared to the other framers, he’s petite, and he’s nervous, but he’s strategic and thoughtful. A effective underdog.

LM [00:10:00] to have that combination of a great philosopher but also a good practical politician in one person. And for someone to say that government is the greatest of all reflections on human nature he just has a wisdom that really speaks to me and I will stand by it. He's my boyfriend and he's the person is my favorite founder.

HM: And even if you don’t carry a flame for him, Madison was undeniably instrumental to the Convention of 1787.

David Stewart [00:03:01]: I think you have to point to James Madison -- I have tended to quarrel with calling him the father of the Constitution, but I do think he's the father of the convention in many respects[...]

HM: This is David O. Stewart, author of The Summer of 1787. He’s going to be our main guide to the Constitutional Convention. David says that Madison was successful in part because of his connections. One connection in particular.

DS [cont.]: To be honest though nothing in that decade of the 70s in America happened of significance politically unless Washington was in it. He was the guy. And Madison very intelligently insisted that Washington's name be listed as one of Virginia's delegates right from the start that gave an incredibly strong blessing to the process.

NC: Celebrity power. Like having Obama speak at your charity event or something.

HM: Only bigger. Washington was a celebrity of almost ridiculous proportions.

DS [00:07:18]: I think he could have you know his stature was immense. I mean he was at a stage where he couldn't enter a city without having the church bells ring and fireworks be scheduled in an illumination of everybody's house happen that night. I mean he just was you know the star. We we've never experienced you know stardom at the level that he did.

NC: Okay, so Madison is rallying people to come to this convention, and he knows that Washington will make for some great bait?

DS [00:04:17]: Washington was very uncertain whether he really wanted to go but he did ultimately decide to. There was a lot at stake. And if it didn't go well it would be he would be blamed for it and he knew that. And so it was not an easy decision. He had tried to retire from public life after the revolution and I think he meant to.

NC: Is it weird to say I feel a little bad for George Washington?

HM: No, I think that makes sense. The man put his time in, and he wants to sit back and enjoy the rest of his life in peace. But the country he had fought so hard for was struggling to stay afloat. So he allows himself to be drawn back in -- with the understanding that he would be presiding officer -- actually referred to as the President -- of the convention. That means he’s not going to orate, he’s not going to debate. He’s going to oversee, and he’ll vote.

NC: Alright, so Madison’s got Washington, he’s got his delegates, and then everyone meets up in Philadelphia to figure something out?

HM: It wasn’t quite that easy. Almost everybody was late. The convention was set to start on the 14th of May, and they didn’t reach a quorum - 7 states - until the 25th. Rhode Island just never showed. New Hampshire didn’t have the money to send their delegates until mid-July. There’s actually this funny moment in Madison’s notes where someone proposes a resolution to send for the delegates from New Hampshire and the motion is defeated.

[music beat]

DS [00:08:16] Virginians were the first out of town delegation arrived. The Pennsylvania delegation was mostly men from Philadelphia so they lived there. And those two groups of men got to know each other pretty well. Many of them knew each other beforehand but they did talk and strategize together. And then the Virginians developed a process where in the mornings. And this happened for over a week. They would convene at a boarding house where Madison was staying and they would and they put together a blueprint.

HM: So, remember, the plan is to get a bunch of delegates together and make changes to the Articles of Confederation so that they, well, work. So that the country doesn’t fall apart. But Madison has a different idea. The delegation spends a few days voting on rules for the convention, including total secrecy so that the framers can debate freely and change their minds if necessary, and then Madison makes his move. Before any debate or suggestion takes place, he has fellow Virginian Edmund Randolph submit a list of fifteen resolutions. It’s called the Virginia Plan.

DS [00:08:16] What the Virginia Plan did basically was throw out the articles and start on a blank piece of paper. And that was audacious and it was also very smart because people didn't wouldn't bring to the debate all the old arguments they'd been having for six years under the articles and they could start essentially with first principles of how a government should be designed and should operate.

NC: Woah, that’s bold. I mean, the Articles of Confederation are no dream come true, but imagine showing up thinking you were going to make some small adjustments and this faction of states tells you, nope, surprise! We’re here to talk about a brand new form of government.

DS [00:09:00] There were delegations like Pennsylvania, and I think the South Carolinians, who knew exactly what the Virginians were doing and supported it. There were a number of delegations. What classically has come down to being described as the small state delegations who were surprised and in no small measure are appalled the Delaware delegation ended up threatening to leave. They had instructions from their state legislature that did not include starting over with a new charter of government.

HM: So there are delegates who are understandably upset with this proposition. And they certainly could bail.. They could walk right out that door and spare themselves months of debate in an airless room.

NC: So why don’t they? If enough delegates leave, they’d lose their quorum and then it’d be over. They can try again next year.

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

Woody Holton [00:20:04] If I wanted to choose a three word phrase that sums up the motives of the authors of the Constitution it would be a phrase that was used at the convention and that phrase is describing the problem that the Constitution was designed to solve as excess of democracy.

HM: New face here. Woody Holton, historian and author of Unruly Americans.

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

HM: “Excess of democracy” might sound absurd to the average American, but what Woody means is that, under the Articles of Confederation, the states were masters of their own destiny. They had a say in whether they would be taxed, they got to make up their own rules. And it wasn’t working. Woody says there were so many factors that lead to the debates on the floor of the Philadelphia State House. But money makes the world go ‘round. And after the revolutionary war, the country had empty pockets and crushing debt, with no surefire system in place to collect taxes.

WH [00:24:21] The the people who wrote the Constitution did not write it to make the country more free. They wrote it to get the country out of a recession. They thought the country was in a recession because debts weren't being paid both to the bondholders who had bought up the war bonds or to private creditors. And they had other practical modems like that.

HM: So many delegates saw a lot of danger in granting a federal government more power. And so much of that is about who you can trust, right? Like, these powers can be a good thing if they stop anarchy and improve the economy. But there is some serious danger in power, too. The inherent dichotomy is so stark that there is no way to make everyone happy here. But we do need a new government, right? Nobody wants to go crawling back to Great Britain! So from the absolute get-go, this convention is going to have a theme.

NC: Powdered wigs? Waistcoats?

HM: Compromise.


NC: Ah. Compromise. Yikes. Good luck. By the way, what exactly is the Virginia plan? What does Madison want the new government to look like?

HM: Right. So Madison proposes a strong national government that could make and enforce laws and collect taxes. The legislation would be bicameral, and representation would be proportional to a state’s population.

DS [00:11:30]: And when the Virginia Plan comes out, those devotees of states rights were the most shocked and appalled. Couple of delegates from New York actually left after six weeks that because they were so unhappy with the centralization of power under the draft that everyone was working on. So when that argument was engaged it ended up morphing into an issue over representation and that was a lucky thing I think for the people who wanted a stronger national government because there are certain -- once you're arguing about representation, you're arguing over how to do it as opposed to should we keep this system where the states have essentially almost all the power.

NC: Ohhhh ok. So Madison proposes this plan, and in order to talk about this plan, the delegates have to talk about representation. And that’s such a hot button issue, that suddenly everyone is debating how they’ll be represented in this new congress, and they’ve mostly moved on from the fact that this is a new system of government and that wasn’t the plan for this convention.

HM: Yeah, there were enough people who genuinely wanted that stronger central government, and once the small states got up in arms about their representation, well, suddenly we are officially debating a whole new system of government. And we are officially making compromises. Little New Jersey says ok, I see your two-house proportional representation and raise you: a unicameral legislature and equal representation. Each state gets one vote. As outlined in the Articles of Confederation

DS [00:15:00] That was the bitterest fight of the summer and really almost blew up the convention in early July the small state delegates were about to leave because they'd been losing. And then finally it ended up in an issue resolved before a committee of one delegate from each of the states than they were called committees of 11 because there were only 11 states represented at the time. And they came up with his compromise that we still live with where the Senate has equal state representation. Each state gets two senators and the House of Representatives is proportional based on population.

HM: This was actually called the Great Compromise, or the Connecticut Compromise, because Oliver Ellsworth from Connecticut proposed it. No, not everyone is going to be happy, but it’s acceptable. And they’ve got more work to do. So delegates are even willing to let this go to committee to hammer out the details. But when they reconvene, it’s time to compromise again. Because when you talk representation, you talk population. And nearly 20 percent of the population at that time was enslaved.

Alvin Tillery [00:07:01] Well the three-fifths compromise was essentially one of the pro slavery clauses of the Constitution.

HM: This is Alvin Tillery. He’s the Director of the Center for the Study of Diversity and Democracy at Northwestern University.

AT [00:17:35] And what the southerners wanted entering the Constitutional Convention of 1787 was they wanted all of their slaves to be counted in the apportionment because places like South Carolina and Georgia had very very large slave populations. They were not as well developed as the Mid-Atlantic slave states or the northeastern states. And so for them if you were just counting white people they were going to have very few seats. And so entering the convention they demanded you know a full count every slave would count as one person.

HM: In some states, enslaved people made up a full third of the population. To count slaves as members of the population, rather than pieces of property, would be to give the South real power in terms of representation. So Northerners made the argument that slaves were livestock. Just like horses or oxen. You don’t count horses or oxen as part of the population, do you? So why would you count your slaves? The South said, no, these are people. Human beings. They ought to be counted. So what if they can’t vote? Women can’t vote, but they’re counted.

NC: You know, I think we’re often taught that the North was the moral player throughout the history of the U.S.. But here they are denying the humanity of enslaved people for the sake of argument.

HM: And remember, at the time of this Convention, slavery was still legal in the North, in Maryland, Delaware, New Jersey and New York. And the North had been built on slave labour.

AT: They all understood that it was immoral. And so the the old view that the framers the founding generation the slaveholders among them from Washington and Jefferson and Madison that they didn't know that slavery was wrong is belied by their own writings and statements about slavery. Let's let's not forget that in the first version of the Declaration Thomas Jefferson essentially blamed the king's evil advisers in Parliament for slavery foisting slavery upon them right. [00:12:25] Jefferson wrote very compellingly and notes on the state of Virginia about slavery being a moral evil. And so so those old arguments just don't hold any water. We know from the writings of the framers that they knew that this system was wrong but they protected it because of a combination of their economic interests and white supremacy.

NC: So what conversations were they actually having over this representation issue? Was it purely motivated by money and racism?

HM: I think the racial and economic bias is a given in this room. But there were some people -- like Gouvenour Morris from Pennsylvania and Rufus King from Massachusetts -- who argued against the entire principle of slavery from a moral point of view. Morris even suggested that the newly reformed nation buy and free all slaves, which was quickly shot down. Even in those free states, you still had men who had grown up with slaves. Who were self-interested elites.

AT: [00:13:45] And so so the entire original 13 the wealth that made them all viable is bound up in slavery in some way or another. And this is the argument the southerners used they would say well it's fine for New York and Massachusetts to say that they don't need slavery anymore but they've had slavery for 100 years 125 years and extracted great wealth from it. Well has Charles Cotesworth Pinckney would say from South Carolina South Carolina's just starting to do that. So it's not fair you know to say to say we developed on the slavery basis and now you guys can't. And I think that that argument won the day.

HM: The “compromise” part of this is in the name, of course. Three-Fifths Compromise. Southern delegates wanted their enslaved population to count as full members of the population. Northern delegates didn’t want them to count at all. So they split the difference, based on a number James Madison proposed back when they were figuring out taxes under the Articles of Confederation. The enslaved population would only be counted at three-fifths of its total. Native Americans, by the way, will also appear in article one. They aren’t counted for tax or representative purposes.

NC: Ok, but... for those delegates who were opposed to slavery, and even those states where it was illegal -- why did they give in? Why was it necessary to give the slave states some version of what they wanted?

HM: Well, the South was threatening to walk out.

AT: The South Carolinians were also incredibly clear about exiting the compact. If they did not sort of get to count some of their slave population in the apportionment. And so it was it was union and slavery or no union. And so they didn't really have a choice if they wanted a federal government. And that was what all of these men were nationalist federalists. They had done something that no one believed they could do. And they wanted to see the experiment succeed. [00:15:54]

HM: So, there’s an emotional element to this, right? They did something that nobody had ever successfully done before. They waged war against their motherland, and won, and started a brand new kind of nation. These delegates want to leave Philadelphia as an intact union. But Alvin says it’s also a practical choice.

AT: The overarching concern is the national security concern that England is coming back. George will be back. And as we all know he did come back in the War of 1812. And so the argument for union is both an argument for financial efficiency and expediency so you could actually get credit in international credit markets loan money buildup the you know the industry in the country so that you could compete with Britain and France but also provide for common defense.[00:18:57] And so one of the states two of the states exiting the union leaves them in a much more vulnerable position because you know even has a union they still lost the War of 1812 right. So this is their concern.

HM: The Three-Fifths Compromise was adopted on July 12th, and most states voted yes. Only the Delaware and New Jersey delegates were unanimously against it.

NC: I think it can sometimes be easy to revere the Constitution because provisions like the Three-Fifths Compromise are no longer in there. But this thinking about this as something that was baked into the early days of the U.S. -- how did it end up shaping us?

AT [00:19:47] Well I mean it absolutely inflated the representative power of the of the slave states in the Congress in the House of Representatives and in the electoral college and what that means is that you know five of the first seven presidents are slave owners from Virginia. Right. And you know which was the most populous and powerful of the slave states and this legacy extends into the you know the 19th century the late federal period. It allows southerners to establish a democratic party and to put in place things like the gag rule which means you can't talk about slavery or introduce petitions from northern states against slavery in Congress. And so that takes slavery off the table has a life political issue for 20 years essentially.

HM: Even after the Three-Fifths Compromise, and a clause requiring fugitive slaves be returned to their masters, were removed from the Constitution following the Civil War, southern states found ways to disenfranchise their African American population, while at the same time gaining even greater population numbers now that all people were fully counted. Here’s David Stewart again.

DS [00:45:42] You know they made grimy compromises. There's no other word for it. The Electoral College is a mess on the slavery provisions are unattractive. When Madison had to write about them in Federalist Papers he clearly found it almost impossible. But you had to get a deal. Otherwise the country might well fall apart. And that's the stakes they were playing for. [00:46:06] And if you had to swallow something you hated most of for it.

HM: And so they keep going. Madison’s plan called for an executive power -- should it be one man or a committee? Well, most states have one, so one it is. But can they veto laws? Sure, but that veto can be overridden by two-thirds of both houses. Well how are we going to elect this one powerful man? Direct election by the people? Absolutely not. What about some kind of indirect system...

NC: Oh, man. The electoral college is so weird.

HM: But it is a compromise. And then came another, this one about the slave trade itself. Ten states had banned the import of enslaved people. Georgia and the Carolinas threatened to walk out if they dared to the same to them. So...

NC: They compromised.

HM: Yeah. Congress would eventually have the power to ban the slave trade entirely. But not until 1808.


NC: Hannah, there are so many disappointing, even shocking, steps. So many ugly compromises that came out of that room. But then this plan sticks around. For over 230 years. And, in so many ways, it has benefited this country. There is a lot to be dissatisfied or distraught over, but we live in a democratic system that can actually work.

HM: Linda Monk actually pointed out the elements of the original Constitution that I think gave it the ability to last.

LM [00:18:00] So the laws that are passed day to day by congress or parliament a majority can improve. And a majority can disapprove them. But the American constitution requires a two thirds majority of the Congress or state conventions to or to propose amendment and then a three fourths majority of the states to approve it. And so that's a high bar we don't want our constitution changing at the whim of the people. But we do want it to be subject to the people.

HM: That’d be Article Five -- the Amendment Clause.

NC: Okay, now, obviously the words We, the People in the preamble did not apply to all people in the U.S. when they were written. But there’s a little bit of We, the People in that article, isn’t there? All this talk about representation, remember, it goes both ways. Yes, it’s about the congresspeople, but it’s also about the people people. The people who’ll elect them. And I feel like the same goes for the amendment process.

HM: Absolutely. The “we, the people” slowly came true. And even if it didn’t apply to everyone at first, and in many ways still doesn’t, it’s there, right? We can rise to it. I kind of feel like the amendment clause itself is a built in acknowledgement that words and ideas of 1787 may not apply to 1887. Or 1987.

LM [00:16:01] Those first three words the most important words in the Constitution really we the people. And it's it's really expressing this idea of popular sovereignty popular meaning the people's sovereignty meaning power and the preamble makes it clear that the power that is the people's is then used to ordained the Constitution. The people have the power and they give it to the Constitution. And that's why the president the Congress the Supreme Court any federal and state officer takes an oath to defend the Constitution of the United States. That's the Supreme source of our power.

[Oath montage]

HM: There was one last compromise to come out of that four-month process -- this one was suggested by the convention’s oldest delegate, Dr. Benjamin Franklin. At this point in his life, Ben Franklin had gone from a slave-owning white supremacist to the president of Philadelphia’s Abolitionist Society. This is a man who has changed his mind, radically, over time. “The older I grow,” he says, “the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.”

And Nick, I know that you’ve always harbored a desire to play Ben Franklin in 1776. And while I cannot give you that, I can do you this small kindness. Would you read Franklin’s final statement to the convention?

NC: Here goes.

“On the whole, Sir, I cannot help expressing a wish that every member of the Convention, who may still have objections to it, would with me, on this occasion, doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”

HM: And you know, in the end, despite Franklin’s appeal, only 39 delegates signed. 16 abstained. Not everyone agreed on this new system of government, not everyone was happy with the compromises that went into it. But they were walking out of that stifling room with a new plan, a new system. It was a radical moment.


NC: You know Hannah, there’s one last compromise this constitution will have to wrestle with. Actually, a whole bill of them. We, the people, have a few things to say about this new system of government. And if I remember correctly, there’s a whole Article that says we get our say.

HM: Ah, that’s right. Number Seven. The Ratification Clause. But if you think those framers are going to sit back and watch that debate from the sidelines, you are sorely mistaken, my friend. They’ve just compromised their whole summer away, they worked hard for this Constitution! If the states are going to debate this, the framers are going to put in their two cents. Actually, their 85 cents. It’s time for a strong federal government, Nick. The Federalists will not go quietly.

HM: that’s next time on Civics 101.

HM: Today’s episode was produced by me, Hannah McCarthy.

NC: And me, Nick Capodice.

HM: Our staff includes Jacqui Helbert, Daniela Allee and Ben Henry. Erika Janik is our Executive Producer.

NC: Maureen McMurray subsists on mush cakes and three cups of black tea.

HM: If you want to know more about how our Constitution came to be -- and trust me, there’s a lot more to learn --- you can find resources galore at Civics 101 podcast dot org.

NC: Music in this episode by Blue Dot Sessions, Jingle Punks, Quincas Moreira, Josh Lippi and the Overtimers, Jahzzar, Vibe Mountain, Sir Cubworth, Konrad Oldmoney, Bad Snacks and the United States Marine Band.

HM: Civics 101 is a production of NHPR -- New Hampshire Public Radio.



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Founding Documents: Articles of Confederation

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

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

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

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

Episode Clips

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101: Articles of Confederation


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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






Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Founding Documents: Declaration of Independence

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

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

Episode Segments:

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101

Founding Documents: Declaration of Independence


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


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


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


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


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


1776: [00:02:41] Vote yes


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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






Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Founding Documents: Magna Carta

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

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

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More Resources

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

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

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

*Footage not actual.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101:

Magna Carta


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


Hannah McCarthy: [00:14:43] So Cook is this super important judge in the fifteen hundreds and sixteen hundreds in England. And there comes this point where the king is imprisoning people willy nilly, kind of acting like the kings of old and Coke and a handful of others say hang on we have come up against this before we know how to stop the king from this tyrannical behaviour.


Wiliam Hubbard: [00:15:03] They wrote about Magna Carta. They base their writings and their philosophies and their belief in human rights and freedom of of individuals use those words that you know though they were ancient words they they were still in existence and part of the the law of England.


[00:15:20] And so they they dusted off those words and used them in the context of the time to again try to restrict the power of the king and soon thereafter the British colonies were being established in the United States.


Nick Capodice: [00:15:39] I'm beginning to see a bit of a right place at the right time thing with Magna Carta.


Hannah McCarthy: [00:15:43] And wouldn't you know it. Sir Edward Coke was attorney general of England when the Virginia charter was drawn up in 16 0 6.


[00:15:50] Now this is one of many Virginia charters but this particular one gave colonists land rights in Virginia and it gave people born in the colonies the same rights as people born in England.


Nick Capodice: [00:16:05] And if Magna Carta applies in England...


Hannah McCarthy: [00:16:07] Exactly. Then it applies in America, too.


Wiliam Hubbard: [00:16:11] It's where so much of what we believe is essential started.


[00:16:14] If you just want to go back and look at what is the foundation the foundation for these principles are not something that just came out of the air in the late 1700s in the United States they had been percolating and expanded and they had been explications of what those words meant and then you're simply applying those magic words those critical words to changes in circumstances and there are times when circumstances demand that we go back to basics.


Hannah McCarthy: [00:16:48] If you look back at the dawn of Magna Carta back to Runnymede in the twelve hundreds the Barons were ticked off because King John was among other things levying taxes that they considered to be unfair. He was doing what he darn well pleased and they decided that enough was enough.


Nick Capodice: [00:17:06] OK this little history lesson is beginning to make a lot more sense. Let's keep it in the episode.


Hannah McCarthy: [00:17:12] Thank you.


Nick Capodice: [00:17:13] Because now we're here right at the dawn of the United States and a bunch of people who are supposedly British citizens are not being granted the same rights as British citizens.


Wiliam Hubbard: [00:17:23] The colonists were asserting that they had the same rights as an Englishman as American colonists they still had the same rights as Englishmen. And how did they prove that they proved that by citing provisions of Magna Carta.


Hannah McCarthy: [00:17:36] Now at this point in England parliament is really more important than Magna Carta Magna Carta is respected and it's lodged in English common law. But you're not necessarily going to hear British born citizens make constant reference to it in their laws.


[00:17:53] But for Americans this old unshakeable document is essential to their case.


Wiliam Hubbard: [00:18:01] You know that phrase taxation without representation became a rallying cry of the colonists who because of the rights conveyed in Magna Carta believed that the British government had broken its contract in Magna Carta gave them a basis for rebellion and gave intellectual underpinning to the revolution.


Hannah McCarthy: [00:18:18] Magna Carta was actually at hand when colonists organized their first act of political rebellion.


Joel Collins: [00:18:24] That was the stamp act Congress of 1765.


[00:18:27] That's Joel Collins, lawyer and law professor at South Carolina Honors College.


Joel Collins: [00:18:32] Here again citing Magna Carta.


[00:18:34] They say this violates Clause 12 which guarantees the king will not enact taxes except with the common consent of the realm. So the idea of taxes without representation they said violates Magna Carta.


Hannah McCarthy: [00:18:52] When the first Continental Congress met in fall of 1774 and drafted a declaration of rights and grievances to be issued to Britain. Guess what was on the seal of their journal?


Nick Capodice: [00:19:03] I'm going to guess it has some of the do with Magna Carta, Hannah.


Hannah McCarthy: [00:19:05] It does indeed. The words Magna Carta at the base of a column grasped by twelve hands representing unity.


Nick Capodice: [00:19:14] If it's the colonies why is it 12 and not 13 hands?


Hannah McCarthy: [00:19:16] That's a good question. In 1774 there were only twelve colonies. Delaware was still a part of Pennsylvania until 1776.


Nick Capodice: [00:19:24] Delaware!


Hannah McCarthy: [00:19:25] Delaware man. And speaking of those original twelve colonies concepts that originated in Magna Carta were in nine of those twelve original state constitutions.


Joel Collins: [00:19:36] You know that men have the right of self-determination unalienable rights they are rights that -- that you don't fight for and earn, they are yours upon your birth.


Nick Capodice: [00:19:54] But by the time we get to the Declaration of Independence.


[00:19:57] You're not seeing Magna Carta explicitly referenced, right?


Hannah McCarthy: [00:20:00] Yeah, true but as Joel points out our Framers were reading a lot of philosophy and social theory and they built that into the declaration and eventually into the Constitution and the Bill of Rights they interpreted the principles of documents like Magna Carta for the purposes of American democracy.


Joel Collins: [00:20:19] I think they were very mindful of Magna Carta. I think they were extremely well read. Read the golden passages of Magna Carta, Clause 38 -- henceforth no bailiff shall upon his own support accusation put any man to trial without producing credible witnesses to the truth of the accusation -- there's your every man. He's being given rights. Clause 39 -- no free man shall be taken, imprisoned, disseised, outlawed, banished in any way and we will proceed against or prosecute him only upon the lawful judgment of his peers.


[00:20:53] There's your jury trial. And The law of the land, there's your due process of law, applicable to everybody.


Hannah McCarthy: [00:21:00] It kind of doesn't matter that Magna Carta was first written for a select group of people with totally different life experience and morals and prejudice than us.


[00:21:09] What matters is this fluke of a 1215 stalling tactic somehow stayed alive long enough to inspire an almost divine Principle.


[00:21:20] And that's why it's important that we learn about it.


Susan Herman: [00:21:24] You know, Magna Carta has just had a tremendous explosive impact over time to get it.


[00:21:29] It was kind of a seed and that seed is really I think developed some offshoots that really might have been very surprising to the barons.


[00:21:37] This is Susan Herman, President of the American Civil Liberties Union.


Susan Herman: [00:21:41] Magna Carta idea of law the land was not something that went through our society it only went to 15 percent of the people. Now when the United States Constitution was written. I think you know we don't like to think about it this way but are the framers of our Constitution our founding fathers were not that dissimilar from the barons who went to King John and 1215. They were all white men. Who was left out of the people who were writing the constitution and who was left out of the basic idea of knew who could vote and who was a member of the society were women, people of color, Native Americans, men without property.


Hannah McCarthy: [00:22:19] In Magna Carta Susan says you see the seeds of freedom. It is by no means a freedom that applies to all but the idea itself is so good and feels so right to all humans that it sticks and it evolves and it spreads.


Susan Herman: [00:22:40] So I went this morning because I knew we were going to be talking I went to the ACLU website and just search the term Magna Carta. And there were 77 results when ACLU lawyers write briefs. There are many kinds of briefs in which they reference Magna Carta and those essential principles of no one being above the law.


Nick Capodice: [00:22:58] Modern day lawyers are citing a document from 800 years ago?


Hannah McCarthy: [00:23:02] Magna Carta has been referenced dozens of times and supreme court cases over the years.


Theodore B. Olson, on behalf of Bankers Life and Casualty Company: [00:23:08] The more one examines the history of the excessive fines flaws and its antecedent, the amercement - excessive aercements clause of Magna Carta...


Chambers v. Florida: [00:23:17] My concept of due process, Mr. Justice Black, which I think goes back to the law of the land of Magna Carta...


SCOTUS: [00:23:28] There were no courts to which people could seek redress against the crown at the time of Magna Carta.


SCOTUS: [00:23:29] In fact the issue was addressed in the very first clause of Magna Carta. There King John agreed, and this is quote, "the English church shall be free." End quote. And he accepted the church's quote "freedom of elections."


Nick Capodice: [00:23:52] So when we think of magna carta as the midwife of democracy it's kind of like thinking of the original Constitution and the Bill of Rights as the things that guarantee our equality because when they were written they didn't actually guarantee equality and liberty for everybody.


[00:24:08] They became that the more that we used them because the basic principles of freedom are in there.


Hannah McCarthy: [00:24:14] Exactly. Susan says it boils down to fairness.


Susan Herman: [00:24:18] I think what due process means is it really means being fair laws the land due process it means that --


[00:24:25] Well it's another way that I would describe it as to meet a lot of the idea of rights and civil liberties is really about the golden rule. That --


[00:24:34] Imagine that you're being charged with something somebody says that you've done something that the crime that's wrong and then they just want to lock you up and or punish you somehow and you would feel that that was very unfair because you might have a defense you might have something to say about how you don't think you really were wrong in what you were doing and if you didn't get a chance to defend yourself you would really feel that that was unfair.


Hannah McCarthy: [00:24:54] Fairness is this thing that were naturally drawn to. Remember how Derek Taylor talked about our freedom loving hearts at the beginning of the episode? How we read things into Magna Carta that aren't literally there?


[00:25:07] That's because we sense this magic bean at the core of Magna Carta and accidentally possibly made up magic bean that ended up being strong enough to inspire a great democratic experiment.


Nick Capodice: [00:25:21] That nobody is above the law.


Hannah McCarthy: [00:25:24] Not even Mother England.


Susan Herman: [00:25:26] It sounds like we might be ready for a declaration and maybe even the declaration.


Hannah McCarthy: [00:25:31] That's next time on Civics 101.


Hannah McCarthy: [00:25:42] One last word here on this remarkable document. If you're planning to read it I say go for the 13 54 version. It is pretty exciting to look at those words are those words in translation and see the first instance of the term due process in clause 39.


Nick Capodice: [00:25:59] Hannah, this may be a dumb thing to ask but do you really need to read Magna Carta?


Hannah McCarthy: [00:26:06] Well there really is a lot of stuff in there about knights and the price of corn and living in a forest and fishing on the river Medway. It's very much a document for Barens. The idea and the spirit are what matter most about Magna Carta. Right. So do you have to read it to understand the point of it. I say not necessarily. That said, Nick, the rest of the documents in this series the ones that are written on U.S. soil, you gotta read those. Do you agree?


Nick Capodice: [00:26:42] I agree.


Hannah McCarthy: [00:26:43] We are endeavoring to make them easier to understand and appreciate. But you still have to read them. You have to read them before you listen.


[00:26:50] After you listen read them read them read them. You think I made my point?


Nick Capodice: [00:26:54] I think you got your point -- point well taken.


Hannah McCarthy: [00:27:05] Civics 101 was produced today by me, McCarthy with Nick Capodice.


Nick Capodice: [00:27:08] Our staff includes Jackie Helbert, Ben Henry, Daniela Allee and Jack Rodolico.


[00:27:13] Erica Janik is our executive producer.


Hannah McCarthy: [00:27:15] Maureen McMurry is Extra Knight of the Most Ancient and Most Noble Order of Divine Halberget.


Nick Capodice: [00:27:21] Music in this episode is by Bad Snacks -- what a name -- Wayne Jones, Jahzzar and Blue Dot essions.


[00:27:27] There is a transcript of this episode as well as a bunch of other resources at Civics 101 podcast.


[00:27:33] Dot org. And while you're there check out extra credit on our Web site.


[00:27:37] It's our biweekly newsletter that Hanna and I cobbled together on a host of fun topics related to our episodes Civics 101 is a production of an each new Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

5 Things to Know About the Midterms

Today we launch our five-part series on the midterm elections! Keith Hughes, creator of Hip History, tells us the five things he thinks every American should know about midterms and why they matter.

Each episode in this series concludes with a snapshot of an historic US Midterm election, delivered by Brady Carlson. Today, it's 1826: Good Feelings and Hard Feelings.

Episode Segments:

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Midterm Edition: 5 Things to Know About the Midterms

This transcript was created using a combination of machine and human transcribing, so there may be some typos.

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

Nick Capodice: [00:00:04] In 1965. Opponents of President Lyndon Baines Johnson referred to him as King Lyndon the first.

Archival: [00:00:13] For in your time. We have the opportunity to move not only toward the rich society and the powerful society.

Nick Capodice: [00:00:21] His approval rating 70 percent.

Archival: [00:00:24] But upward to the great society.

Nick Capodice: [00:00:31] Since being sworn in as president after the assassination of JFK in 1963 Johnson had launched a set of programs called the Great Society to demand an end to poverty. And racial injustice.

[00:00:45] He signed the heart Sellar Immigration Act created Medicaid and Medicare.

Archival: [00:00:49] Integration of Martin Luther King receives his pen. A gift he said he would cherish.

Nick Capodice: [00:00:54] It was in this administration that protests led by Martin Luther King in DC and in Selma resulted in two pieces of the most important legislation of our country the Civil Rights Act of 1964 and the Voting Rights Act of 1965. All of this ball navigating our involvement in Vietnam.

Archival: [00:01:13] Main purpose of the operation was to clear the area of the Viet Cong.

Nick Capodice: [00:01:18] Democrats held 289 House seats and 68 Senate seats. Political minds declared the Republican Party officially dead. Andrew

Nick Capodice: [00:01:28] How can you unseat a King?

Archival: [00:01:33] It's like entering a gambling casino to walk into a grocery store in Prince's County.

Nick Capodice: [00:01:43] The Great Society was no match for the price of milk. In 1966 small protests in Baltimore and Denver caught the eye of the Republican National Committee which claimed Johnson's Great Society programs and America's involvement. Vietnam were to blame for rising grocery costs.

[00:02:00] Republican candidates for office latched onto the idea. They brought Giant grocery carts to campaign events. They printed out oversized price tags showcasing rising food costs. They pushed inflation hard. This was the stage for the 1966 midterm election.

Archival: [00:02:18] Big shot in the arm of the American Republican Party. Ronald Reagan as governor of California. Most of the polling station was from west to east showed a swing away from President Johnson's Democratic Party.

Hannah McCarthy: [00:02:34] So what happened?

Nick Capodice: [00:02:35] What happened? What happened and it was huge. One of the biggest losses to the Democratic Party in the history of elections. Republicans gained 47 House seats. Three Senate seats eight governorships 557 state legislature seats. Nixon got elected two years later. Newsweek wrote in the space of a single autumn day that 1000 day reign of Linden the first came to an end.

[00:03:02] The Emperor of American politics became just a president.

Hannah McCarthy: [00:03:06] That is wild.

Nick Capodice: [00:03:08] Crazy.

Nick Capodice: [00:03:09] It was in a midterm which nobody cares about. And not only that not only did Ronald Reagan get elected as governor of California six others Hanah seven people total who are involved in the 1966 midterms became president. Later.

[00:03:24] The Republican Party became decidedly not dead at all. In the wake of a midterm election.

Hannah McCarthy: [00:03:30] Get out.

Nick Capodice: [00:03:38] I'm Nick Capodice.

Hannah McCarthy: [00:03:38] And I'm Hannah McCarthy.

Nick Capodice: [00:03:39] And this is Civics 101 the podcast refresher course on the basics of how our democracy works. And today we're kicking off a five part series on midterm election.

Hannah McCarthy: [00:03:48] We're going to look at campaigning state and local government.

Nick Capodice: [00:03:51] The difference between the House and the Senate and what is on your ballot but before we get into any of today's episode is about finding the midterms and the five reasons why they matter to tell us what happens in a midterm. First we spoke with Cheryl Cook Kallio.

Cheryl Cook Kallio: [00:04:06] I'm Cheryl Cook. Kallio I'm a teacher. I taught government for 39 years.

[00:04:10] My claim to fame is that Sandra Day O'Connor held my hand.

Archival: [00:04:13] And he said Sandra I'd like to announce your appointment to the Supreme Court tomorrow.

Hannah McCarthy: [00:04:19] Sandra Day O'Connor as the first woman to hold a seat on the Supreme Court Sandra Day O'Connor.

Nick Capodice: [00:04:23] The very one.

Cheryl Cook Kallio: [00:04:24] Any national election that takes place without a presidential candidate is considered a midterm. Most people they're not so focused on midterm elections because they think the president is all important. And certainly our chief executive is important however we elect some extremely important positions during this period of time.

Nick Capodice: [00:04:44] And in all of these offices the term lengths can vary. So senators in WashingtonD.C. have a six year term. But some state senators can have an election every two years. That's what we have in New Hampshire. Yes but some states have a four year term and others have completely different terms. But I wanted to cut to the heart of midterm elections. So I asked this guy my name is Keith Hughes.

Keith Hughes: [00:05:05] I'm a social studies teacher. I also run a YouTube channel called Hip Hughes history.

Nick Capodice: [00:05:09] He's made over 500 educational videos aboutU.S. and world history. I asked him to tell me the one thing he wished Americans knew about the midterm elections and he gave me five.

[00:05:20] Are you ready for a listicle?

Hannah McCarthy: [00:05:21] I am always ready for a listicle.

Nick Capodice: [00:05:23] Number one.

Keith Hughes: [00:05:24] So number one the president is going to take it on the chin. Well at least most of the time. Midterm elections many times are called a referendum on the president and what that means is people are going to the polls not so much just voting on local issues which they do a lot but they're really kind of judging in evaluating the president and deciding if they want to give them full rein to do what they're doing or if they think that checks and balances might be in order terrain that President in a little bit.

Nick Capodice: [00:05:53] So if you love the president. Love love love what he's doing. This is a thumbs up.

[00:05:57] Or if you're super frustrated with the president even though he's not on the ballot you can take your frustrations out on his party.

Dan Cassino: [00:06:04] So the midterm elections wind up being important because what we get in the mater is as it's called surge and decline this is Dan Cassino Abdel Cassino an associate professor of political science at Fairleigh Dickinson University. No political science spent a lot of time worrying about Sturgeon decline but the basic principles this which ever party did better in the presidential election does worse in the midterm election. Why is that. Why is that. If your party does really well in the presidential election it's because you turned out a lot of voters who otherwise wouldn't vote. These are of marginal voters may stay home. Well guess what. Two years later they're gonna stay home.

Keith Hughes: [00:06:41] In the past modern era at least 50 or 60 years the president in power has always lost seats in the midterm election except for 1998. Bill Clinton was lucky enough to have a really good economy and George Bush in 2002 and I'm thinking 9/11 might have had something to do with that. But every other election whether it be Barack Obama or it be Bush or Nixon or we can go way back to Harry Truman. Usually Americans that are going to turn out want to see a constitutional republic that works. And usually that means that the president who is in power. Like I said before it's going to take it on the chin.

Archival: [00:07:16] How bad a night was this for Democrats. It was really bad. I think it was. Would you take a look at the election results in 2010 and this year. This was a wave a Republican wave that hit and hit that Democrats.

Hannah McCarthy: [00:07:29] So the surge is when everyone comes out to vote in the presidential election and then the decline is what happens two years later when lots of those voters just stay home.

Keith Hughes: [00:07:42] So number two is really the cyclical cycles that occur in the House and the Senate and there really isn't a cyclical cycle in the house because every single House member is going to be up for re-election. That's right. All 435 members of the House have to face the music. But in the Senate it's one third of the Senate.

Dan Cassino: [00:08:01] So the Senate is divided into three classes actually called in class a class B and Class C in each of those classes is up for election every two years so every two years one third of the Senate is up for re-election. Again this is Dan casino. Now the reason that matters is because no matter how big a wave you get in a midterm election or even the present election it can't affect more than one third of the Senate. This creates a temporal division of power where in the Senate one third of it is governed by what happened two years ago. One third both happened four years ago.

[00:08:34] One third about what happened six years ago.

Archival: [00:08:36] Meanwhile domestic politics also makes headlines. The 1966 election chooses governors senators and congressmen and serves as a significant preview of the 68 presidential election.

Dan Cassino: [00:08:46] So in 2016 in the Senate for instance you are still seeing a bunch of people who've been elected in the Tea Party wave of 2010. Now that wave wasn't really going very much anymore in 2016 but it didn't matter because they were still in there. You're still sharing power across all those years. And the idea is to kind of average things out where the house is reflecting all of these the minute whims of the people they want and a Masonic party. They want the Tea Party. Well the Senate is going to be the insulation between those whims and the actual power of government.

Hannah McCarthy: [00:09:19] So the Senate by design has this long institutional memory and the House is more reactive.

Nick Capodice: [00:09:25] That's right. But the staggered Senate means every election is different when it comes to who even has a chance a chance.

Keith Hughes: [00:09:31] So depending on which states are up for grabs you can see a year where the Democrats are very safe or the Republicans are very safe. This cycle happens to be where there are more Democrats in red states that have to face the music. So it's going to be a little bit more difficult for the Democrats not only to hold their seats but to flip seats as well. So we see very red states states like Montana where you have Democrats that have to face Trump voters they have to face red voters and hold those seats. So not only if the Democrats gained power in the House or the Senate are they going to have that ability to investigate the president. But it also means they're going to be able to put the kibosh on the president's agenda. So in terms of passing legislation that's not going to be so easy for Donald Trump anymore if the Democrats take over either branch because obviously you have to pass legislation out of the House and the Senate. So even taking one branch totally puts the brakes on the Trump agenda legislatively at least.

Hannah McCarthy: [00:10:27] OK so this is like when Obama lost the house in the 2010 midterms right.

Nick Capodice: [00:10:32] Yes. So Obamacare went through before that election but it never would have made it out of the House if it had happened after the election.

[00:10:44] Number three congressional redistricting aka gerrymandering.

Dan Cassino: [00:10:51] Now we've probably heard a lot about gerrymandering in the House of Representatives. That's where state legislatures draw districts to help one party or another. So they might draw districts to make sure that Republicans are always going to one seat or the Democrats win one seat. And both parties do this although in recent years generally Republicans have done a better job of it than Democrats have.

Archival: [00:11:09] Because the politicians are only one thing it does is to stay in power.

[00:11:14] To stay in power no matter what. It doesn't matter if you're a Democrat or a Republican.

Dan Cassino: [00:11:19] Now what that means is the House of Representatives I am largely representing a district that already likes my party. So I'm speaking to here from Montclair New Jersey in Montclair New Jersey as a whole is a city that is slightly to the left of Trotzky.

[00:11:39] That means if I'm the representative from Montclair I run as far left as I can and that'll get me elected. If I go to towns over I'm going to be in a town that had the birth of the Tea Party. And guess what.

[00:11:50] I'm going to run as far right as I can. I'm going to win re-election. House of Representatives districts tend to lead to polarization with members of Congress trying to go as far left as far right as they can get.

Nick Capodice: [00:12:01] Just a quick clarification. Congressional redistricting and gerrymandering aren't interchangeable. Gerrymandering is when you do congressional redistricting to favor your party.

Hannah McCarthy: [00:12:12] OK so what does this have to do with midterm elections.

Nick Capodice: [00:12:15] Well statistically older whiter more conservative people vote in midterms and that means these districts can be drawn to favor conservatives and that won't change for another 10 years.

Keith Hughes: [00:12:26] Most political scientists put it at about 40 seats that are truly up for grabs with all of the rest if you can think of that 435 seats. There's only 40 really competitive districts which means the other ones are really really red are really really blue. Just to put it in perspective in the last election it was pretty split in terms of the House the House of Representatives we saw if you took the total vote for House members it was about 50 percent 50 percent split between Democrats and Republicans. But when you break that 50 50 percent down and you look at what happened in terms of the outcome of the vote you know the Republicans have more of a 40 seat advantage in the house.

Nick Capodice: [00:13:06] I have to restate this Ana because I could not believe it when I heard it the first time in 2016. Even though almost the exact same number of votes were cast for Democratic Representatives and Republican Representatives the Republicans won 241 House seats and the Democrats won 194.

Hannah McCarthy: [00:13:26] So when are those districts actually drawn.

Nick Capodice: [00:13:29] That happens every 10 years after the census is done. So this election coming up 2018 midterms is huge because some of the people who will go in will determine the next drawing of congressional districts. Oh man that's big big big big but let's move on to number four.

Keith Hughes: [00:13:44] Number four midterms matter because you really are pressing the button for new ideas. If the Democrats are able to flip the house or flip the Senate not only does it give a chance for the party to redefine itself to have new leaders to have fresh faces to try to put that agenda in front of the American people and maybe put you know the president under some pressure in terms of is he going to support ideas that might be popular with most Americans because that legislation is now coming out of the House and coming out of the Senate. But in the long term it really can help a party rejuvenate itself. You know come out new start over again.

Hannah McCarthy: [00:14:19] The guy who wrote the book on midterms AndyE. Bush told me about this. He said that if we look at huge areas of new policy in American history say the New Deal or LBJ Great Society. They were bracketed by midterm elections not presidential elections.

Nick Capodice: [00:14:36] Yeah it's like midterms are a test kitchen for politics and we saved the best for last. Here comes number five.

Keith Hughes: [00:14:41] And finally number five why midterm is really important is because voting counts voting really matters and when you look at statistically the type of turnout that you get in midterm elections it's really really sad. My fellow Americans you know in a national election you might see 55 65 percent of registered voters coming out. But in a midterm election it could be as low as 25 30 percent.

Archival: [00:15:05] Sometimes your instincts tell you when a man is right.

[00:15:08] For the job.

Nick Capodice: [00:15:13] So there it is. Keith uses top 5 1 President almost always take the hit to the Senate staggered election cycle is crucial. Three congressional redistricting aka gerrymandering is going to happen after the midterms for midterms are proving ground for new ideas and 5 your vote really counts in a midterm.

Hannah McCarthy: [00:15:35] I gotta say Nick I've really learned a lot in this episode.

Nick Capodice: [00:15:37] Me too. So before we say goodbye we're going to end this episode with a snapshot of the historic midterm broken down by Brady Carlson former NH PR reporter and current afternoon host at Wisconsin Public Radio as well as the author of Dead Presidents.

Hannah McCarthy: [00:15:52] Brady Carlson.

Nick Capodice: [00:15:54] You know him, right?

Hannah McCarthy: [00:15:54] I know Brady.

Nick Capodice: [00:15:55] He's going to tell us about a midterm from the past.

Brady Carlson: [00:15:58] Sometimes a midterm election can turn an era of good feelings. Into an era of hard feelings.

[00:16:11] Today's midterm is the 18 26 midterm election. And to understand the election of 1826 and 1827 they were split up back then. You first have to understand how weird the 20s are in American political history. This is one of the few times where the country doesn't have major political parties that oppose each other. There had been two main political parties the Federalists and the Democratic Republicans but the federalists collapsed and so the Democratic Republicans were kind of the only game in town by the 18 20 presidential election. James Monroe the incumbent ran. Basically unopposed for re-election and because there's no organized opposition to his administration this period becomes known as the era of good feelings.

[00:17:00] The feelings were actually a little more mixed than that especially when 1824 rolled around because there were a bunch of people angling to be Monroes successor at that time. The typical frontrunner to be the next president was the previous president secretary of state. And at that time the secretary of state was a guy called John Quincy Adams of Massachusetts. But there was also kind of a wild card thrown into the mix.

[00:17:25] Jackson of Tennessee had even gotten a national MSJ.

[00:17:30] He was a military hero in the War of 1812. He was enormously popular and he had thrown his hat into the ring. He wasn't going to wait around to become secretary of state first.

[00:17:39] There's only one thing that can keep you from being pretty and that you wish that the election happens.

[00:17:45] Jackson wins the most popular votes and the most electoral votes but not a majority of either. And under the Constitution when there's no majority in the Electoral College the House of Representatives chooses the presidents and in 1824 they chose the second place finisher John Quincy Adams determined Bacchis not to have a wedding present. So obviously the Jackson people are furious. They finished first and didn't win the election so they essentially say this is a rigged system. The Adams people had conspired with the insiders in the House of Representatives to take away the election not only from Andrew Jackson but to their minds. The will of the American people. So the Jackson people respond to this by organizing their own political party. They called it the Democratic Party and their mission was to basically wage a four year election campaign against President Adams and the people who would put him in office. So they specifically targeted those lawmakers from the projects Jackson districts who had voted to elect Adams. They called it a blacklist. Now Adams was still rooted in the old model that public officials were public officials not politicians. They shouldn't carry the banner of a party. He even once told Congress that they needed to pass some of his agenda even if it was unpopular with the people he told them and this is a quote Don't be quote palsied by the will of our constituents. Now that's not the kind of thing that wins you a lot of public support. So the Jackson forces took this opportunity and they started using something close to modern election techniques they were going district by district. They were really playing up the personality of their candidate. Jack's life. Was. Nuts.

[00:19:29] And when the mid-term elections were done they had majorities in both houses of Congress and they use those majorities to block the Adams administration and its priorities for the next two years until the 1828 presidential election rolled around which Andrew Jackson won in an outright majority. This was an early example of what's now known as the mid-term decline where a new president comes in and two years later voters move toward the opposition in Congress to serve as a kind of check on that administration. This is something that's happened not in every presidency but in enough that it's become an almost expectation when a new president comes into office.

[00:20:14] That is it for Civics 101 today and remember this is just the first in a five part series on the midterm elections. Stick around for number two which will be on state and local elections.

[00:20:26] Today's episode was produced by me, Nick Capodice and Hannah McCarthy and Jackie Helbert. Our staff includes Ben Henry and Justine Paradice Jimmy Gutierrez and Taylor Quimby Erika Jandek is our executive producer Maureen McMurry is the one who put the hat on the snowman music in this episode by Diamond Ortiz Rondo brothers Blue Dot sessions Yang logos dead boys Ethan Maxwell parvus decree Samuel Woodworth silent partner Franz Schubert the green orbs and Keen's as Merera. If you want to know more about civics 101 or you want to submit a civics question of your own. You can do that at Civics 101 podcast. Dot org Civics 101 is a production ofM.H. PR. New Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Midterm Edition: Why Vote?

We've told you that midterm elections matter. But the truth is, midterms only matter to you -- and you only matter to your legislators -- if you show up at the polls. It's the first step in making yourself heard. And once you have, you mean that much more to the people who make our laws. 

In this episode, you'll hear what voting actually does for you and your demographic. Plus, how to make sure your voice is heard, whether you're eligible to vote or not. Our experts this time around are Cheryl Cook-Kallio, Edgar Saldivar and Peter Levine.   

Episode Segments

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101

Episode: Why Vote?



Hannah McCarthy: [00:00:02] We've spent a lot of time in this series explaining mid-term elections why they happen how they work. Who runs in them what shows up on the ballot. And I feel like we got there you know midterms Crash Course accomplish.


Nick Capodice: [00:00:18] Why do I feel there's a but in here.


Hannah McCarthy: [00:00:21] But our goal. I mean it's the title of the first episode. Our goal was to convince people that midterms matter. You know full disclosure we definitely have an agenda. We were trying to prove a point.


Nick Capodice: [00:00:34] Yes that's true. But midterms do matter. Of course they matter. They can change the course of politics they change the law.


Hannah McCarthy: [00:00:42] But I'm stuck on that final step. Participation showing up to vote because midterms are going to happen whether people turn out for them or not.


Nick Capodice: [00:00:51] That is actually my least favorite excuse for not voting.


Hannah McCarthy: [00:00:54] OK. Hear me out. We started with the goal of proving the power right. The worth of this election. And I think we partially felt we needed to do that because a lot of people don't care and we know that because we can look at voter turnout numbers and see that people just don't show up for the midterms the way they do for presidential elections.


Nick Capodice: [00:01:16] This is understandable when you're voting for the leader of the free world the largest office in our country it's bound to bring people out voting for the president is huge and it's in an obvious way and that's not really the case with smaller local offices that are on your ballot in a midterm.


Hannah McCarthy: [00:01:32] And that fact isn't going away right no matter how you Gussy them up. The midterms are missing that one crucial thing.


Nick Capodice: [00:01:38] Hannah if at this stage you're trying to convince me that midterm elections are not a big deal. I'm not only going to lose it but I got Dan Cassino on Speeddial right now.


Hannah McCarthy: [00:01:50] OK I would not dare try to do that to you. Especially not at this point. But all I'm saying is I think we need more more what more of a reason to turn up and to vote on Election Day.


Nick Capodice: [00:02:03] You got something?


Hannah McCarthy: [00:02:05] I think I do. Which is good because this is Civics 101. The podcast refresher course on the basics of how our democracy works. I'm Hannah McCarthy.


Nick Capodice: [00:02:18] I'm Nick Capodice.


Hannah McCarthy: [00:02:19] and today on Civics 101 we're going to turn the focus on you dear listener because it isn't the president who makes or breaks an election it's you your five minutes in the voting booth are more than just an exercise in civil participation. Choosing to vote is like saying Hey look over here. You better listen to me because I have got your job in my hands.


Nick Capodice: [00:02:40] I hear you. Hannah and I don't need convincing. But if we're going to go there with voting then I have to say there are plenty of people who do show up to vote every year and still feel like legislators ignore them.


Hannah McCarthy: [00:02:51] You are absolutely right. That was the case for a lot of voters and that's where I want to start. With the frustrating truth about making your voice heard speaking up is not just about election day. It's a lot of work and it needs to be happening all the time.


Cheryl Cook-Kallio: [00:03:10] One of the problems I think with voting is that people think it's a passive action that you do in every two years you do with every four years when in fact it's what you do between elections that actually energize the constituency during a campaign and during an election.


Hannah McCarthy: [00:03:27] That is Cheryl Cook Kallio everybody high school teacher and former member of the California Assembly.


Cheryl Cook-Kallio: [00:03:32] And you know you'll hear people say well I didn't know this was going to happen or I didn't know this is going to be on the ballot. A lot of this is is prepped for years in advance and so voting is extremely important. But paying attention between voting and applying your civic knowledge between voting is equally as important to get the result. And to me a good result is one that represents a broad constituency.


Nick Capodice: [00:03:58] But what does applying your civic knowledge actually look like? We always hear you know you got to get involved but you know give me the instruction manual.


Hannah McCarthy: [00:04:06] It means a lot of things but why don't we start with the obvious you know knowing what you're voting for because let's be honest we've all likely encountered an office on the ballot on Election Day that we didn't even know was up for election or maybe we didn't even know what that office was.


Cheryl Cook-Kallio: [00:04:23] It makes me sick because I've seen that so many times and literally or worse yet who's running right who's running.


Hannah McCarthy: [00:04:32] All right. We hear stuff along these lines pretty often right. You know stay informed do the research don't complain if you don't vote and maybe don't complain if you vote without doing your homework first. And that advice can start to turn into white noise. But Cheryl cares about this and to be honest so do I. Because you are definitely, not maybe Nick, definitely electing people and voting on ballot measures that will change your life.


Nick Capodice: [00:04:59] Let me jump in here because look I know it's not super easy to figure out who and what you're voting for. And I guess is this what you mean by the work? I've pored over so many ballots not just from our state New Hampshire but from every state in the union. They're all completely different. They all have totally different rules and it's frankly overwhelming.


Hannah McCarthy: [00:05:16] It is overwhelming and frustrating and it's my job to research this stuff. But you know passivity is easier or soft focus is easier.


Hannah McCarthy: [00:05:28] And the thing is I don't have to know the world will go on rolling without my knowing exactly who I just helped to elect sheriff. But I'd rather just know who it is. I'm voting for. That way I don't wonder if I helped elect somebody who maybe goes against my morals and luckily we've got thousands of journalists and analysts around the country clamoring to provide us with that information.


Cheryl Cook-Kallio: [00:05:52] I think that people need to be informed and in order to be informed they have to look at a variety of sources. If the only place that you're getting your information is off of Facebook or Fox News or MSNBC you're only getting half of the story. When I see a story come up and I look at the source of the story. I then physically look for other articles that may be done from a different perspective. It takes work and part of the issue with living in a democracy is you have to be constantly vigilant.


Nick Capodice: [00:06:27] I guess if you want the government by and for the people to actually reflect what the people want then the people have to know how to ask for what they want how to establish it. It's just it's such a huge task. I don't feel like any of us can show up on election day knowing everything.


Hannah McCarthy: [00:06:44] I think that's completely true. And as Cheryl sees it you don't have to be an expert in your options.


Cheryl Cook-Kallio: [00:06:51] It's important to recognize that you can't know everything. And so for me if I'm in an area that I'm unfamiliar with I will call a person that I think is an expert or here's the one thing that people don't do enough and that is call the office of their elected official. If I'm really confused about something and I know the bill was authored in a particular office or I know somebody who's opposed to that in a particular office I will call up and ask for the information. That's what their job is is to give you that information.


Hannah McCarthy: [00:07:26] OK. That's the kind of work you couldn't do before an election in the month leading up to it. Right. That's Election Day centric work. But I want to go back to this idea that Cheryl has about civic knowledge because there's the kind of passivity that means not showing up to vote. And then there's the kind of passivity of not knowing who or what you're voting for before you do show up. But to Cheryl civic engagement also has to take place in the off season like being a baseball fan who pays attention to the draft and then watches spring training.


Nick Capodice: [00:07:58] Except these players are in charge of making law. So the stakes are a little higher.


Hannah McCarthy: [00:08:02] Slightly higher. Yeah and the actual law making the job that we essentially hire our legislature to do that is what is going on in the off season. That's what's going on between elections. So the most important part of engaging with your rep or your senator is not the act of voting. Aside from the issue of actually getting to the polls and being sure you're allowed to vote and we will get to that later. The impact of Election Day itself is largely psychological. But the law making that comes after that. That is what makes your life better or worse. That is what keeps your schools operating and your streets safe.


Cheryl Cook-Kallio: [00:08:45] And it's about approaching democracy what's important. What do you need to do before an election. You know what we're talking about is exactly what illustrates the importance of paying attention between elections that it really isn't about just sitting around and twiddling your thumbs. I had a student had once said to me you know I don't care about those government stuff which of course caused me to have you know hyperventilating and he said you know when it's never going to make a difference to me. And I sat there sat down and I said you know right now probably nothing I said but the minute that you want to walk your daughter to school and you recognize that there needs to be a stop sign at the corner. It will become very important to you. And he looked at me and said You're right.


Hannah McCarthy: [00:09:34] We all turn out for the presidential elections and any kind of trickle out for the midterm elections. And then you know the rest of the time how many of us show up when the work is actually being done. I think there's this sense that our metaphorical microphone only appears in the voting booth and then that the rest of the time we have to sit around and watch things happening to us or at us but we're allowed to comment on laws before they happen we're allowed to ask for a stop sign.


Hannah McCarthy: [00:10:02] And the people who can make that stop sign happen and can make you or your kids save are often the very people up for election or re-election during the midterms.


Nick Capodice: [00:10:12] Something that's really easy for me to forget is that you can go online and look up your senator or your state rep governor's number and you could just give them a call. You can ask them questions about what's going on in your city. You can tell them that you need that stop sign at the end of your road or tell them you're opposed to a bill or let them know about a problem at your school.


Cheryl Cook-Kallio: [00:10:32] Decisions are made by people who show up and you only show up on Election Day. Then you're not doing your due diligence and you're likely to be somewhat disconcerted over the outcome at least in some areas.


Nick Capodice: [00:10:46] One of the only obstacles I can foresee for this is it's a matter of numbers. So what if I'm the only one who wants that stop sign or what if my state representative or legislature just doesn't seem to care.


Hannah McCarthy: [00:10:57] I mean that's definitely something that happens but it all comes back to voting. If you turn out to the polls and people who share your beliefs turn out alongside you then you've established that broad constituency that Cheryl was talking about earlier.


Hannah McCarthy: [00:11:15] For example let's say youre a 47 year old Wisconsinite who loves the color green and loves swing sets and believes in unionized playground companies. You want the playground Union to build a green swing set in every city in the state.


Nick Capodice: [00:11:30] I feel very passionately about this.


Hannah McCarthy: [00:11:31] You do and a lot of people around your age feel the exact same way.


Nick Capodice: [00:11:35] OK so we are going to be golden right? If if we all want these union built Kelly Green swings sets we're going to get them right?


Hannah McCarthy: [00:11:43] Ah but let's say only a handful of people in your swing set devoted demographic actually vote.


Nick Capodice: [00:11:49] OK that's not great.


Hannah McCarthy: [00:11:50] No it's not great. Because the thing is it doesn't really matter if you all feverishly desire to see union belt green swing sets dotting the Wisconsin landscape if you don't vote. Your legislators pay attention to those who show up to the polls. If your demographic does not why should they pay attention to what you want in the meantime?


Nick Capodice: [00:12:10] That's pretty dark.


Hannah McCarthy: [00:12:11] That's politics my friend.


Cheryl Cook-Kallio: [00:12:13] Right now if young people would vote if we got the vast majority of students that are 18 years old voting in California they could change how we charge for college education. You would all of a sudden have a group of legislators that would be paying very close attention to this demographic. It's because they don't vote some of these things are passed.


Nick Capodice: [00:12:40] That's crazy. I mean we don't usually talk about legislation in terms of voter turnout. The idea is that your person either wins or loses and they go about their business of working for you or not but it sounds like. And tell me if I've got this right. If your demographic turns out in full force then your demographic's going to get more attention than other demographics even if you both voted for the same person.


Hannah McCarthy: [00:13:03] Exactly. It's just like Cheryl says that people who candidates pay attention to are the people who vote in large numbers. So white people vote more than people of color. Older people vote more than younger people. Rich people vote more than poor people.


Nick Capodice: [00:13:19] And by the way as we've mentioned in a couple different episodes whiter older richer tends to also describe the demographic of the people we actually get to vote for. But on the subject of who is turning out to vote our country by and large makes it way easier for that white wealthy older demographic to vote.


Hannah McCarthy: [00:13:40] Which brings me to my next point the point Cheryl made about college aged voters not turning out. You cannot boil that down to young people being lazy or something.


Cheryl Cook-Kallio: [00:13:50] So you know you're in your parents home you're going off to college you change residences. How many times while you're in college four years are in training or wherever else you go to become an adult. You forget to register and then you can't decide are you going to vote in the city that you're going to college in. Are you going to vote in the town that you came from. You have to make that decision. In some state they make it very difficult for people to vote by mail. So if you are going to college in you know North Carolina specifically had a rule about this or a law about this not too long ago that they didn't want students voting on the college cities that they live in but you're not going to drive home to vote on a Tuesday. So you are basically taking away their right to vote unless you allowed them to vote absentee. I mean they've changed that law now but it is a way to suppress voter participation by making it difficult to register and making it difficult to change your registration.


Hannah McCarthy: [00:14:52] Now I do want to say the people who work on tightening voter registration access say they're doing it to prevent voter fraud. But the defacto result of this is that there are laws all over the country that make it tricky for college kids to vote for people of color to vote for lower income people to vote for trans people to vote.


Edgar Saldivar: [00:15:11] You know the voter ID requirements can be very burdensome to poor individuals to people of color to the elderly who don't often have the ability to obtain the records or pay the fees the state requires to have photo IDs for example.


Hannah McCarthy: [00:15:28] This is Edgar Saldivar he's a senior staff attorney at the ACLU in Texas and Edgar makes clear that although these laws do not explicitly block minorities from voting they do in some cases make it more difficult.


Edgar Saldivar: [00:15:43] There are numerous ways that state legislatures have made it burdensome difficult or sometimes impossible to cast a ballot for individuals who are eligible to vote. And rather than extending access to the ballot what we've seen as a trend to make voting much harder rather than easier.


Hannah McCarthy: [00:16:11] And it's not just registration that poses a problem. A polling place can be moved at the last minute or maybe you show up and you find your name has been purged from the voter roll.


Edgar Saldivar: [00:16:21] Right so a voter roll essentially is a listing all the persons that are registered in a particular precinct.


Hannah McCarthy: [00:16:29] Now Edgar says that there are a lot of ways a person's name might be purged from the rolls in a city or state. Maybe you've moved or you've been incarcerated or become mentally incapacitated. All of these he says are lawful reasons to purge someone from the voter rolls.


Nick Capodice: [00:16:44] However I've read tons of articles specifically in the last 10 years about people who are definitely eligible to vote and they show up and they're told nope sorry you're not on the list.


Hannah McCarthy: [00:16:54] Yeah that does happen.


Edgar Saldivar: [00:16:55] Some states have taken a sort of overly aggressive efforts to purge voters. Oftentimes voters who aren't eligible to vote whether may be sort of a kind of administrative mistake that caused it, you know they go vote and they realize that they are not on the voter rolls.


Nick Capodice: [00:17:14] So it sounds like you've got to have your rights down pat before you even go to your voting station.


Hannah McCarthy: [00:17:17] That's exactly it. Edgar says that if you are eligible to vote meaning you're a U.S. citizen. You'll be 18 on the day of the election. You're a resident of the state county and district where you are casting your ballot and you are not in prison or on parole for a felony conviction. Then it is your constitutional right to vote.


Nick Capodice: [00:17:38] But what if your attempt is thwarted. What if you know that you're eligible to vote you've waited in line for a few hours. You show up and they say Buzz off buddy you're not on the voter rolls.


Hannah McCarthy: [00:17:48] OK. First and foremost what you have to do is ask for a provisional ballot and a receipt. If you ask for this provisional ballot it is required by law that they give it to you. And then after the fact they will assess on a case by case basis whether or not your vote is valid.


Hannah McCarthy: [00:18:06] And then if you have any other problems because things do crop up you can call this number. It's 8 6 6 our vote so that's 8 6 6 6 8 7 8 6 8 3. They're are a nonpartisan election protection coalition. They're national. They'll know what to do.


Hannah McCarthy: [00:18:27] But let me just give you a specific example. Right. So a lot of trans rights groups are trying to look out for people who might be denied at the polls. The ACLU of New Hampshire for instance has put together a fact sheet explaining that yes if you have changed your name you need to reregister under that name.


Hannah McCarthy: [00:18:45] However if for example your I.D. appears to show someone of a different gender you cannot be denied the right to vote.


Nick Capodice: [00:18:51] All right come prepared maybe even write these things down before you go. Just to be on the safe side. But still I can totally see myself being intimidated by the prospect of being denied a ballot even if I know my rights.


Hannah McCarthy: [00:19:04] Yeah in a case like that it can be worth a quick Internet search to figure out if there's an election day carpool program near you that can offer support. in Tennessee for example. There's even a ride share app for the LGBTQ community in Chattanooga that helps people get to the polls. And you know what Nick. If all else fails you can always call your attorney general and verify your right to vote and you can do that right at the polling place.


Nick Capodice: [00:19:30] Can I check in for a minute here. Sure. So we started this episode with you saying you're going to give people just one more reason to turn out on Election Day for midterms. And you've given us a couple and some how tos.


Hannah McCarthy: [00:19:42] OK good. That is what I was going for.


Nick Capodice: [00:19:43] But I think there's one big thing missing actually. The people who can't vote yet. Young people. People who are going to be able to vote in the future or just don't have that constitutional right yet in their lives. So many of the laws. So many of the laws that we make in this country have to do with those people but they don't get a say.


Hannah McCarthy: [00:20:10] Or do they.


Nick Capodice: [00:20:12] Do they? Is this a trick.


Hannah McCarthy: [00:20:14] I mean I say they do. I say young people are instrumental to effecting change.


Nick Capodice: [00:20:19] Go on.


Hannah McCarthy: [00:20:20] OK. Point number one and please bear with me on this one. Young people are the future.


Nick Capodice: [00:20:27] Oh Hannah is everybody rolling their eyes out there?


Hannah McCarthy: [00:20:30] But it's true.


Peter Levine: [00:20:32] So I think it's important for young people to realize that they have a lot of power and they're actually exercising it.


Hannah McCarthy: [00:20:37] This is Peter Levine. He's the academic dean at the Tufts University Tisch College of civic life.


Peter Levine: [00:20:43] They're a very big Voting Bloc. They are gonna run the country. Whatever happens in. 15 20 25 years. So the skills that they learn now. For running the country are really important. Whatever happens the way that they vote does determine the outcome of elections even if they don't vote at the numbers they should. So they do swing elections. So they are actually exercising power so I don't buy the hype that they're just disengaged. Some of them are but some of them aren't.


Nick Capodice: [00:21:08] But still he's talking about the young vote. What about the young nonvote.


Hannah McCarthy: [00:21:12] So Peter has been doing research on civic engagement of people from kindergarten through senior year of high school and he's been doing it for over a decade now. So he knows that first of all if you learn about voting when you're young you can be a good voter by the time you actually get there.


Peter Levine: [00:21:28] So the pattern in America is that people gradually become voters. Each decade until people get into their 80s. They vote at a higher rate and it seems that people sort of overcome the barriers they learn how to do it. They tune into some issues and get an idea who they're going to vote for and when they do that they're much more likely to vote against it. You could say voting is habit forming. And for the very youngest the habit has only formed for about one in five in the midterm elections.


Nick Capodice: [00:21:54] So get in the habit of being a voter before you're actually a voter.


Hannah McCarthy: [00:21:58] Yeah but that isn't it. You know you can actually do something long before you're a member of the electorate. For one thing. What is more compelling more sympathetic than a young person demanding say justice or support? And What is more disappointing than a legislator who ignores that young person's call. Not to get all cynical about this but you know it's good PR to pay attention to young people.


Peter Levine: [00:22:25] So even if you don't have the vote you can work in other domains. But the other thing is you can influence older people have the vote. So. Certainly the Parkland students are demonstrating that you can have a big influence on voters even if you're too young to vote yourself.


Nick Capodice: [00:22:39] And on of these ideas that Cheryl Cook-Kallio talked about that civic engagement is about what happens between the elections, like swaying legislators is less about voting day than it is about how you get at them when things are in session. Is there a way for underage people to get their say?


Hannah McCarthy: [00:22:55] This is one major thing that Peter kept coming back to civics is not limited to government and exercising your voice isn't limited to being of voter age.


Peter Levine: [00:23:04] So you can change the world in lots of ways and that that opens up a whole range of things you can do. One thing is there are in other institutions and communities apart from the government the ones that the government runs they're in the school or any neighborhood.


Peter Levine: [00:23:16] They might be in a religious location they're in a family. And all of those institutions can be changed so you can if you can't change the law through voting you might be able to change your school's policies through talking to the Administration at the schools.


Hannah McCarthy: [00:23:34] So those things that are quite a law like let's say you're suspended for something that you think is unjust. You can go to the mattresses over something like that. You can disagree with policy and you can make people listen to you about it long before you get to actually vote for anything.


Nick Capodice: [00:23:54] And you can work for politicians too. You can volunteer or you can show up at rallies offer feedback like Bakari Sellers said eat cold pizza in a church basement. You can make it so by the time you might have to deal with a challenge to your right to vote you know your rights better than anybody because you've been preparing for this your whole life.


Hannah McCarthy: [00:24:12] I mean my big takeaway from all of this is that the lack of voter turnout is this kind of self-fulfilling prophecy. They say young people don't vote and so young people don't get attention from legislators and so they feel disenfranchised and that literally disenfranchises them. They then don't vote. The same goes for any group of people who feel like they're on the outs.


Nick Capodice: [00:24:35] So I guess the best medicine is to prove those numbers wrong.


Hannah McCarthy: [00:24:39] Yeah I couldn't agree more. Per usual. We're going to end this episode on the story of an historic midterm. Nick do you have one for us?


Nick Capodice: [00:24:49] I sure do.


Hannah McCarthy: [00:24:50] All right.


Nick Capodice: [00:24:51] This one. Go vote dammit.






Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Midterm Edition: Propositions (aka Ballot Measures)

Regardless of how you choose to vote on Prop 1, you'll finish this episode knowing all about ballot measures. These are bills and amendments initiated by the people, and voted into law by the people. What could possibly go wrong when we sidestep our famously pedantic legislature??

Today's episode features our eminently quotable teacher and former California Assemblymember Cheryl Cook-Kallio, political correspondent at KQED Guy Marzorati, and frequent initiative proposer Tim Eyman. Cameo by Dan Cassino.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


 Civics 101 is a production of the Corporation for Public Broadcasting.

Midterm Edition: PROPOSITIONS

Nick Capodice: [00:00:01] If you're from the great state of Idaho you might have heard this.

[00:00:04] It's not just saving our tradition of horse racing. Proposition 1 is about Idaho job creation classroom funding real accountability and the Idaho sponsoring Prop 1 are donating 100 percent of net profits from their horseracing operations to a new charitable foundation.

[00:00:21] I work with horses all my life. Supporters of Prop 1 are running deceptive ads. Prop Wong is an unlimited expansion of gambling statewide. I know the people behind Prop 1 and it made a lot of promises to schools and the racing community. But they take 18 times more money. Than schools get.

Nick Capodice: [00:00:39] Hey Hannah

Hannah McCarthy: [00:00:42] Yes.

Nick Capodice: [00:00:43] Pop quiz hotshot.

Hannah McCarthy: [00:00:44] Okay.

Nick Capodice: [00:00:45] Yes or no on Prop 1.

Hannah McCarthy: [00:00:50] I don't know what Prop 1 is and I need more information if I'm gonna say.

Nick Capodice: [00:00:55] Who benefits, who benefits from Prop 1.

Hannah McCarthy: [00:00:58] Schools, right?

Nick Capodice: [00:01:04] 4h? I cannot explain to you what Prop 1 is. I'm Nick Capodice.

Hannah McCarthy: [00:01:10] And I'm Hannah McCarthy.

Nick Capodice: [00:01:11] This is Civics 101 the podcast refresher course on the basics of how our whole democracy works. So today we're going to be talking about propositions. Ballot measures. These are initiatives referendums and recall.

Hannah McCarthy: [00:01:25] So when you say propositions what are you talking about.

Nick Capodice: [00:01:30] Propositions is an umbrella term under which initiative referendum and recall fall. To be clear today we're not talking about legislatively referred constitutional amendments which all the states except for Delaware have.

Hannah McCarthy: [00:01:46] Hold up, what is up with Delaware.

Nick Capodice: [00:01:47] I don't know actually we're going have to put that in our state anomaly episode along with Nebraska's single house legislature.

Hannah McCarthy: [00:01:53] And our 400 seat House of Representatives.

Nick Capodice: [00:01:55] Yeah.

Hannah McCarthy: [00:01:56] Did I sound a little drunk when I said that/

Nick Capodice: [00:01:57] No it sounded perfect. First off ballot initiatives they only happen in 24 states. And when I told our midterm guru Dan Cassino from Fairleigh Dickinson University that I thought it was funny that New Hampshire didn't have initiatives. He said that.

Dan Cassino: [00:02:11] No it's about when your state constitution is written. With your state constitution written between about 1880 and 1915 you're going to have initiative referendum recall all that, if it wasn't written or wasn't revised during that period you're not going to have it.

Nick Capodice: [00:02:25] This was during the height of the Progressive Era when progressives were arguing that corporations monopolies and trusts were corrupting state legislatures and there was no way for the citizens voice to be heard. Ballot initiative gives them that voice. So many of you out there you're not going to see props on your ballot on Election Day. So for you this episode is going to make you wish you had them, or grateful that you don't. If you are from one of those 24 states. Chances are they are a massive part of your political landscape. But first we need to dissect what an initiative and a referendum are. Here's former California assembly member and teacher Cheryl Cook Kallio.

Cheryl Cook-Kallio: [00:03:06] The initiative and referendum process puts the ability for citizens to either initiate the word initiate a statute that can be passed that either becomes a bill or it might become an amendment to a state constitution which gives grassroots organizers a real advantage. So an initiative is new legislation initiated by the people.

Nick Capodice: [00:03:31] Yes and referendum is.

Cheryl Cook-Kallio: [00:03:33] Something that the legislature submits to the people in order for them to validate a law that they would like to pass. Oftentimes it is something that's controversial or it may be like a state constitution or a referendum could be a grassroots movement by citizens of a particular state or county or city to recall or to redo a bill that they don't want that was passed by their lawmaking body.

Hannah McCarthy: [00:04:04] So a referendum is either reworking or removing a bill that's already been passed by Congress.

Cheryl Cook-Kallio: [00:04:12] So this gave a lot of power to individual citizens as opposed to leaving it up to your representatives.

Nick Capodice: [00:04:19] And legislative referendum is when elected officials put the question to the people. What do you think. Should we pass this bill.

Hannah McCarthy: [00:04:27] Why on earth would Congress want the people's opinion instead of just working it out themselves.

Nick Capodice: [00:04:33] Well as we've learned in many episodes it's really hard to get bills through both houses of Congress. So if you're a legislator and there's a bill that you think doesn't have a chance of getting out of committee or going through a debate on the floor of the House or the Senate you can just throw it to the people for a vote and it becomes law.

Tim Eyman: [00:04:52] So yeah this is Tim Eyman, I'm part of a team that has done initiatives in Washington state in the last 20 years. And during that time we've managed the get 16 ballot measures on the ballot. During that period of time and voters have approved 10 of those and rejected 6. So we're batting over 500.

Nick Capodice: [00:05:12] Tim is a conservative and part of what appeals to him about this process is that it gives him a voice in a state that tends to lean pretty blue.

Tim Eyman: [00:05:21] Well the initiative process is allowing people died. And I think that that is very attractive to me. Frankly I just don't trust politicians to do the right thing. But the initiatives we focus on are really focused on limiting government power and taxes.

Hannah McCarthy: [00:05:40] OK that's initiative and referendum but what is recall.

Nick Capodice: [00:05:45] Ooh, recall is super interesting and super duper rare but I wanted to include it today. Here's another initiative expert Guy Marzorati; political correspondent from our friends at KQED in San Francisco.

Guy Marzorati: [00:05:56] Recalls are of actual politicians and elected officials. We had one a little more than a decade ago in the governor's office where the sitting governor was recalled by voters and so that again was a required signature drive. That was then placed on the ballot and the governor was recalled and a new governor was chosen in the same election.

Hannah McCarthy: [00:06:17] That the people just removed a governor.

Nick Capodice: [00:06:20] They did. Gray Davis was removed from office in 2003 mostly due to tax and budget issues. But this was the election when Arnold Schwarzenegger was sworn in as governor.

[00:06:29] But for the people to win politics as usual must lose.

Hannah McCarthy: [00:06:35] No impeachment process no trial in the Senate. Just the voice of the people.

Nick Capodice: [00:06:41] Yes though I should add only 19 US states have recall and there's only been three in U.S. history, two of which were successful.

Hannah McCarthy: [00:06:49] OK so that's recall. How about initiatives and referendums how did they start. Who can put one on the ballot.

Guy Marzorati: [00:06:55] It can be anyone. And you know you there's a process by which you submit the language to the state. And then after that language is reviewed you are allowed to start gathering signatures.

Nick Capodice: [00:07:07] Here's Tim Eyman again. This is the guy who's gotten 20 initiatives on the ballot in Washington state.

Tim Eyman: [00:07:12] Well it's it's really tough. You've got to somehow convince well over 300000 fellow citizens to sign a piece of paper to put that on the ballot and you have to do that in about three or four months. So it's an incredibly difficult process to be able to you know essentially start the entire campaign and get it up and running in such a short period of time.

Nick Capodice: [00:07:38] Just a quick check in Hannahm How are you feeling about initiatives so far?

Hannah McCarthy: [00:07:43] In the sense that we are a democracy for the people by the people, it sounds really great right?

Nick Capodice: [00:07:52] Well let's start by looking at those signatures.

[00:07:58] My name is Kathy from petition's unlimited. And we here today in this very very rough economy. And I got the job for you.

Guy Marzorati: [00:08:07] In California we often can see outside of supermarkets and you know places where a lot of people gather you'll see folks with clipboards with different initiatives that they are gathering signatures for.

[00:08:19] Make your own hours. This is great for a musician for an actor somebody just wants to make money on the side.

Guy Marzorati: [00:08:26] Many of those people who do that are paid to do it and it can be a lucrative business if say an initiative is running against the clock to qualify for a ballot. Maybe its proponents will pay a hefty fee for each signature that's gathered in order to make sure that the initiative proposal does get on the ballot.

Hannah McCarthy: [00:08:46] Hold on. It's not just passionate advocates getting signatures.

Nick Capodice: [00:08:50] Oh no. This is business big business.

[00:08:55] Enough valid signatures from registered voters and the measures make it into the November ballot.

[00:09:00] If you have the 13 or 12 petitions even one person to sign them all it's worth about forty dollars. So it's worth a lot of money.

[00:09:08] Some campaigns are paying as much as five dollars this year for a single signature.

Hannah McCarthy: [00:09:14] It's the person collecting signatures who gets the five dollars per signature.

Nick Capodice: [00:09:19] Yes. So they can make upwards of five hundred dollars a day.

Cheryl Cook-Kallio: [00:09:22] So there's no incentive for that person with a clipboard to tell you the truth about what you're signing. So if you're not doing your due diligence if you're not reading the initiative you know yourself and they have a whole bag of tricks they can walk up and they say you like puppies don't you. And you know this protects the puppies and oh yes I'm going to sign this because it protects the puppies only to find out that it kills kittens.

Guy Marzorati: [00:09:47] Their job is really just to get the signatures and get paid for it.

Nick Capodice: [00:09:51] As of October 17th 2018 Ballotpedia has tracked about one point four billion with a B dollars spent on contributions and expenditures towards ballot measures for these upcoming midterms.

Hannah McCarthy: [00:10:04] This is starting to dampen my enthusiasm for a citizen led democracy.

Nick Capodice: [00:10:12] Well let me just throw another wet log on the fire Hannah. Sometimes parties and corporations throw tons of money behind initiatives for other reasons.

Guy Marzorati: [00:10:25] Ballot initiatives sometimes are often just used to get people out to the polls. I mean we saw the example that this year in California with the gas tax repeal. This was a measure placed on the ballot with heavy funding from the state Republican Party. They spent a lot to get the signatures and get it qualified for the ballot but then stop spending as much. Once the measure actually qualified. And the reason was they really wanted this gas tax repeal on the ballot to get Republicans to the polls. They thought it would be a big driver of turnout that would help them in the governor's race. And even more importantly help them in really close congressional races. But as an actual measure they didn't really fund it once it was on the ballot to the same extent which made it seem like maybe it was more important to get it on there than to actually get it passed.

Nick Capodice: [00:11:11] So imagine for a second that we as a nation had initiative and referendum. And that the decision to overturn Roe v. Wade was up to the people to decide. Can you imagine the voter turnout for that election.

Hannah McCarthy: [00:11:27] I think it would be huge. Right. I mean that's one of the most divisive issues in the country if that were up to us for a vote. I think most able voters would turn out. But. How would you even write that on a ballot.

Nick Capodice: [00:11:44] I am very glad you asked because this brings me to another point since you're voting for ideas as opposed to just candidates, names on the ballot, there is a lot of attention on how these are phrased. Back in 2008 Cheryl Cook-Kallio she was teaching a high school class she called the most inclusive class she had seen.

Cheryl Cook-Kallio: [00:12:04] They had a gay straight alliance before other schools had them. The kids were very open about who they were.

Nick Capodice: [00:12:09] And this was when California was voting on Prop 8 which was about same sex marriage.

Cheryl Cook-Kallio: [00:12:13] We have an I Vote thing in California where students mimic the national election and they all voted against gay marriage. And my mouth flew open as did my entire We The People class and I immediately went to the ballot and looked at how it was worded and I said well they were all vote thought they were voting in favor of gay marriage. So how something is worded is extremely important. And there are lawyers spend their entire career figuring out how to word something so that it seems like one thing is as opposed to another.

Guy Marzorati: [00:12:47] The wording is such a politicized aspect of this whole ballot initiative conversation. So the wording is decided by the attorney general's office. And this you know can work very drastically for and against supporters of a ballot measure. Take this year with the gas tax repeal. Democrats control all statewide office in California which includes the attorney general's office. So what voters will see on their ballot does not say do you want to vote yes on a gas tax repeal. Instead the measure and the language at sea seems really tilted towards do you want to get rid of funding that has been dedicated to fix our roads to fund transportation which is what this increased gas tax went towards. So polling interestingly that has just asked people about their thoughts on the ballot measure by reading them the ballot language. You know the repeal is done a lot worse than if you ask people whether they support a repeal of the gas tax.

Hannah McCarthy: [00:13:51] Well what language actually made it onto the ballot.

Nick Capodice: [00:13:54] All right here's the first part for the Prop 6 summary: repeals a 2017 transportation law's tax and fee provisions that pay for repairs and improvements to local roads state highways and public transportation. Ballotpedia has this automatic formula that analyzes the readability of all of these measures. And it's called the Flesh Kinkaid grade level which is how many years of formal education you'd have to have in order to fully understand with confidence a ballot measure. So this one we just read that scores of 16.

Hannah McCarthy: [00:14:25] What does 16 mean.

Nick Capodice: [00:14:27] That means you need 16 years of formal education to comprehend. You need a college degree. And the one we played some ads for in the beginning are old horsea friend Prop 1 in Idaho.

[00:14:37] I work with horses all my life.

Nick Capodice: [00:14:40] 53 years of formal education to understand.

Hannah McCarthy: [00:14:44] Who besides a monk has 53 years of formal education.

Nick Capodice: [00:14:50] It's just it's just a formula that analyzes language. But let me but tell me how you'd vote on this. Ready?

[00:14:56] Yeah.

Nick Capodice: [00:14:56] An initiative amending Chapter 25 title 54 Idaho code contains findings and purposes MEND's definition of historical horse race adds new section authorizing historical horse race betting in certain locations where live or simulcast parimutuel horse race betting occurs specifies requirements for historical horse racing terminals declares such terminals not to be slot machines allocates revenue from historical horse race betting requires licensees to enter into agreements Horseman's groups prehistorical horse race purse money fund and State Treasury authorizes distribution by state races commission and between state treasurer refund monies direct state racing commission to promulgate implement rules declares and act effective upon voter approval and completion of voting canvass and provides for severability.

Hannah McCarthy: [00:15:31] Get out. Leave.

Nick Capodice: [00:15:34] My favorite words in this are parimutuel.

Nick Capodice: [00:15:36] So a lot of words, spellcheck was like don't you mean something else like three words in this the my spellcheck didn't catch

Hannah McCarthy: [00:15:43] What's the single thing I'm voting on like what's the big idea here. Because these are a million little things that don't mean a hell of a lot to me. I know nothing about horseracing.

Nick Capodice: [00:15:52] Yeah this is the sort of stuff that requires you to do the legwork you have to research each initiative before you vote. From what I can gather Prop 1 is about legalizing the use of video terminals for horse race betting.

Hannah McCarthy: [00:16:04] I would not have gotten that.

Nick Capodice: [00:16:06] And there's 11 of these in California alone. So if there's a call to action today it's to go to a Web site like, Put in your address and get a sample ballot before Election Day.

Hannah McCarthy: [00:16:19] Or let's say you're in the polling booth. Get out your phone. Look this stuff up if you need to.

Nick Capodice: [00:16:24] So let's hear Guy's final thoughts on the pros and cons of direct democracy.

Guy Marzorati: [00:16:31] Supporters of ballot initiatives say this is the best way to give citizens power to react to things that the legislature isn't dealing with. Examples of that in the past have been about property taxes. This year rent control issues that the legislature hasn't taken up for years. People are fed up and they feel like OK you didn't act on this. Now it's time for us to act on it. On the flip side when we talk about citizens initiative these often aren't brought to the ballot by you know some good citizen who suddenly thinks of it an idea that should be a law it's oftentimes interest groups unions corporations that feel like. You know they want to change a law. They couldn't do it through the legislature. They don't want to negotiate about it. They want to just port forward kind of a yes or no idea and they're willing to spend heavily to make it happen.

Guy Marzorati: [00:17:19] That's you know how does the process I guess has taken on more of a cynical aspect.

Nick Capodice: [00:17:25] And if it seems that people are a bit cynical of initiatives I want to close by saying that yes, corporations and political parties have massive influence on what initiatives make it to the ballot. That said, these are also the issues that elected officials have been avoiding, that they wouldn't touch with a ten foot pole. Issues like marijuana legalization. Abortion. Same sex marriage. The death penalty.

Hannah McCarthy: [00:17:54] So knowing that the language might be designed to purposefully obfuscate the meaning. I feel empowered to do research and also to take with a grain of salt what I'm reading in that voting booth it's a little bit like those crosswords you do Nick where the clue contains the answer but it's not immediately apparent you have to think outside the box to get to it.

Nick Capodice: [00:18:21] The cryptic crossword.

Hannah McCarthy: [00:18:22] Yeah.

Nick Capodice: [00:18:23] And I think it's really exciting they just Prota a lot of there's a lot of trust in the voter in these issues. If the voters all do their work. Then these can be a really cool thing. If they don't they're at the whims of people who have lots of money.

Hannah McCarthy: [00:18:38] Right.

Nick Capodice: [00:18:39] So you gonna move to California.

Hannah McCarthy: [00:18:42] No, I like the rain.

Nick Capodice: [00:18:44] Before we go we have our final snapshot of a famous midterm from U.S. history delivered by former NHPR reporter current afternoon host at Wisconsin Public Radio. Author of dead presidents, Mr. Perfect, Brady Carlson. What mid term are we talking about today Brady?

Brady Carlson: [00:19:01] We're talking about the midterm of 2002 and the lesson from this midterm is that the rules of American politics only apply until they don't.

Brady Carlson: [00:19:16] We know that what typically happens in midterms is that the president's party loses seats in Congress in the midterm after the president is first elected. They don't always vote for the opposition party to have control of Congress. But at the very least the president's party ends up with fewer seats in Congress after that midterm. That said the political picture in 2002 was complicated. We were only a couple of years removed from the presidential election of 2000. That's the one where Republican George W. Bush won the Electoral College but lost the popular vote and there was the highly controversial Supreme Court decision about recounts in the state of Florida.

[00:19:57] Neither the sanctity of the ballots nor the integrity of the election. Has been compromised. And that the election results....

Brady Carlson: [00:20:08] Republicans had a majority in the House of Representatives. It was a straightforward majority. The Senate was anything but straightforward 2000 elections have left the chamber with 50 Republican senators and 50 Democratic and Democratic aligned senators. So the vice president was on the hook to potentially break all these ties.

Brady Carlson: [00:20:26] And then after five months of that split Republican senator switched parties and the Democrats had a very narrow majority.

Senator Jim Jeffords: [00:20:33] I have found myself in crushingly odds with the Republican philosophy and more in line with the philosophy of the Democratic Party.

Brady Carlson: [00:20:43] So leading up to this midterm we had one chamber of Congress with a Republican majority one with a Democratic majority a president who had only narrowly won an election. So this is about as divided as divided government gets which in and of itself is very complicated.

Brady Carlson: [00:20:59] But of course the most complicated piece of the midterm in 2002 was that it came about a year after the attacks of September 11 2001.

Geoge W Bush: [00:21:09] I became something that no president should ever want to be a wartime president.

Brady Carlson: [00:21:16] There were other issues at the time. There had been a big tax cut bill in Congress. There was the No Child Left Behind education law.

Brady Carlson: [00:21:22] The U.S. economy had kind of become sluggish but the single big issue in this midterm was security. The U.S. was already launching a military effort in Afghanistan. President Bush had called for Congress to authorize a new military campaign in Iraq. And I had forgotten until I looked it up just how close to the election the Iraq war vote took place it was in October 2002 so it was under a month before Election Day. Republicans in Congress by and large backed the president, said you need to go into Iraq. The Democrats who had mostly opposed the president on the economy and other domestic issues ended up split on the Iraq vote. A lot of rank and file Democrats opposed the war vote but their leaders in the House and Senate as well as some very high profile senators like Hillary Clinton and John Kerry voted in favor of the resolution.

Senator Hillary Clinton: [00:22:13] Any vote that might lead to war should be hard but I cast it with conviction.

Brady Carlson: [00:22:21] Now obviously that became a very consequential vote for a lot of reasons a lot of people changed their minds about that vote in the years to come. But if you look at it purely through the lens of a midterm election campaign you have a lot of high profile Democrats who are basically siding with the Republican administration on the top issue of the campaign. And all of that ends up leading to a midterm outcome which is far from the usual. There's an important caveat about that rule that the president's party loses seats in the president's first midterm. And that is that you can usually track how big those losses are going to be for the president's party based on the president's approval rating at the time. So take GeorgeW. Bush's predecessor Bill Clinton in his first midterm election. His approval rating was like 43 percent. And so Democrats lost pretty big. They lost control of Congress. In 2002. George W. Bush's approval rating was 63 percent.

Geoge W Bush: [00:23:23] We choose freedom and the dignity of every life.

Brady Carlson: [00:23:34] It wasn't that long before it was even higher in the immediate aftermath of the September 11th attacks. So you have a president with relatively high approval ratings long term changes in the country's political alignment and an election where security and terrorism are top issues in a way that they usually aren't. And it wasn't that all of that ended up turning into a landslide for Republicans in 2002. It was still pretty divided. If you look at the raw vote totals but the races that might have swung one way or another determine the outcome wound up swinging in the administration's favor. So in the end Republicans gained five seats in the house the game two in the Senate. So they wound up having majorities in both chambers of Congress.

Brady Carlson: [00:24:15] Again this is the first time that the president's party had gained seats in the president's first midterm election since the 1930s.

[00:24:28] He told me to come down here and tell you something. Tell me to come down here and tell you that two years from now he wants all y'all on his team.

Brady Carlson: [00:24:47] The lesson here is that there are no guarantees in U.S. elections. There are trends and some of them happen so often that they might almost feel like political laws. But to assume that voters will go a certain way in an election just because voters have usually gone that certain way in the past is to forget the wisdom of one of our great philosophers baseball star Yogi Berra who said it ain't over till it's over.

Nick Capodice: [00:25:18] That'll do for this our penultimate episode on the midterms. Stay tuned for the next and final one. Today's Episode is produced by me Nick Capodice and Hannah McCarthy.

Hannah McCarthy: [00:25:29] Our staff includes Jacqui Helbert and Ben Henry our executive producer is Erika Janik. Maureen McMurray believes in parimutuel promulgation.

Nick Capodice: [00:25:37] Music from today's episode is from Geographer, Scott Graton, Chris Zabriskie, Poddington Bear and Blue Dot Sessions.

Hannah McCarthy: [00:25:45] Civics 101 is a production of an NHPR, New Hampshire Public Radio.




Made possible in part by the Corporation for Public Broadcasting.

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This podcast is a production of New Hampshire Public Radio.

Midterm Edition: Campaigning

How do you stand out in a sea of lawn signs, or make yourself heard above the roar of a thousand ads? Campaigns are hard enough when the whole country is watching -- so what does it take to get the vote when most people couldn't care less? That's the mystery of the midterm campaign. We asked some experts to help us solve it.

In this episode, you'll hear from Inside Elections reporter Leah Askarinam, CNN political analyst Bakari Sellers, politics professor Barry Burden and state house candidate Maile Foster. Plus, Brady Carlson walks us through a midterm of revolutionary proportions. 

Episode Segments

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101

Episode: Campaigning


Hannah McCarthy: [00:00:00] Nick, you ready?


Nick Capodice: [00:00:01] Yeah.


[00:00:05] (ad archival)


Hannah McCarthy: [00:00:41] Relentless.


Nick Capodice: [00:00:41] Yeah this is some of the most depressing audio I've ever heard.


Hannah McCarthy: [00:00:44] Yeah it's it's a bummer. Now listen to this.


[00:00:51] (ad archival)


Nick Capodice: [00:01:08] Hope and action. Anger.


[00:01:11] Yeah.


[00:01:12] We have to do something better for.


Nick Capodice: [00:01:14] Things are going to change.


Hannah McCarthy: [00:01:16] It's like a montage in a movie it's like when things turn around.


Nick Capodice: [00:01:20] That's my favorite part of every movie. Yes the rocky montage.


Hannah McCarthy: [00:01:24] So you better right?


Nick Capodice: [00:01:25] Yeah I do feel a lot better.


Hannah McCarthy: [00:01:25] That's how you're supposed to feel.


Nick Capodice: [00:01:28] So what's up with this emotional rollercoaster.


Hannah McCarthy: [00:01:31] Well Nick that is the sound of someone trying to convince you to vote for them in 2018. A campaign ad that doubles as a heart wrenching autobiography The story of a youth who pulled themselves up by their bootstraps and grew into a grateful and nurturing adult but remains frustrated by the way the world works and wants to do something about it.


Nick Capodice: [00:01:53] Heavy stuff.


Hannah McCarthy: [00:01:55] It is heavier than you can imagine. These ads which look pretty expensive by the way are just one teeny tiny piece of the campaign puzzle and that puzzle is even more puzzling in a midterm election.


Nick Capodice: [00:02:10] Did you solve the puzzle.


Hannah McCarthy: [00:02:11] Absolutely not. But I did talk to a lot of smart people who have because that is how we do it because this is civics 101. The podcast refresher course on how our democracy works. I'm Hannah McCarthy.


Nick Capodice: [00:02:26] And I'm Nick Capodice.


Hannah McCarthy: [00:02:28] And today we are talking money shoe leather and grass roots. Today we are talking campaigns. The sound of campaigning is in constant flux. In the 1960s there was a lot of just repeating candidate names over and over.


[00:02:51] Nixon. Nixon. Nixon Nixon.


Hannah McCarthy: [00:02:52] In the 80s you had a lot of stare at the camera and keep it serious going on.


[00:02:57] Kansas agriculture needs our support. I'm asking for yours on November 6th.


Hannah McCarthy: [00:03:03] And the Hollywood ish melancholy of today will probably be replaced by a whole new sound four years from now numbers shift tactics shift campaign finance laws shift but the principles of campaigning, the bare necessities those are locked in your state constitution.


Maile Foster: [00:03:22] My name is Maile Foster. I'm a small business owner and single mom and I'm running for State House District 18 as an independent. And that's the central Colorado Springs area.


Hannah McCarthy: [00:03:38] A while back Miley was approached by an organization called Unite America.


[00:03:43] Imagine a government that unites rather than divides us one that takes action on issues.


Hannah McCarthy: [00:03:48] They identify independents in various states and then try to get them to run for office.


Hannah McCarthy: [00:03:53] You know people love saying I'm not a politician in their campaign ads?


[00:03:57] I'm a businessman not a politician. Kip's not a politician. He's not a politician of convenience. Here my politician endorsements. None.


[00:04:07] Maile is very much not a politician. She's a financial adviser and before that she worked for IBM. So I wanted to know where someone like her begins after agreeing to something like this. You know you wake up the next day what do you do first.


Maile Foster: [00:04:25] Well it's this big thick three ring binder to do list. That's what it is.


Nick Capodice: [00:04:31] A binder. You mean like a literal binder there's an instruction manual on how to run campaigns?


Hannah McCarthy: [00:04:37] Yeah. The people from Unite America just shipped her this hulking how to manual.


Maile Foster: [00:04:41] Well I will just start on this to do list.


Maile Foster: [00:04:47] Oh we have to file paperwork with the secretary of state each have to form a committee and get a tax ID number. I mean basically start from scratch starting the business almost. And but there's additional financial and regulatory reporting requirements because I have that all spelled out for me is not too hard to just start going down the list. What you gotta do to kick off the campaign.


Nick Capodice: [00:05:17] So you just file some paperwork with the secretary of state. It's just that easy?


Hannah McCarthy: [00:05:21] Actually there is one major step that had to come first.


Maile Foster: [00:05:25] And so right from day one it was like May 17 was the first day I can go get signatures. And so that very first day I was out talking to people to get signatures to get on the ballot.


Nick Capodice: [00:05:39] So signatures so people have to go out and vote for her before they vote for her.


Hannah McCarthy: [00:05:43] Yeah this is called Nomination by Petition and just for the record ballot access laws vary from state to state. So if you're planning to run you should give your election officials a call. But in Miley's case since she was going independent she needed at least 400 signatures to get on the ballot. State Senate requires 600U.S. House requires 800. It's a cool thousand for U.S. Senate. The rules are different for major and minor parties as well.


Nick Capodice: [00:06:11] So Maile got her 400?


Hannah McCarthy: [00:06:12] Actually. She scored 637 signatures.


Nick Capodice: [00:06:16] I mean that seems like an awful lot of work just to get started campaigning. But once you do that what's the next step?


Maile Foster: [00:06:22] Well you need someone to help you manage finances. You need a Treasurer you need someone to help you with volunteers and help recruiting volunteers. You need someone to build a Web site.


Nick Capodice: [00:06:34] So people so for even for a small statehouse seat you need a whole team?


Hannah McCarthy: [00:06:37] Yeah it's kind of amazing to think of how many operations like this are going on around the country during an election year. And you know even with volunteers this stuff costs money which means on top of her day job Maile has to put in hours every day making calls and hoofing it from one door to the next. Introducing herself and asking for money.


Maile Foster: [00:06:59] The first priority of course was raising money because I made a choice of. Obviously I'm not going to get money from a political party because I don't want to be beholden to a political party.


Hannah McCarthy: [00:07:11] I should point out here that the group that recruited Maile does help to fund campaigns. It's a super PAC registered with the FEC specifically designed to be nonpartisan but they don't cover all expenses and Miley has to do a lot of legwork on her own. She actually told me that she outraised all of her opponents.


Nick Capodice: [00:07:30] So that's not bad for someone who's never campaigned before. I'm still trying to figure out what a campaign actually looks like for a candidate who's not in office. Fundraising, courting voters, creating a platform. How does that work?


Maile Foster: [00:07:42] Well a typical day is I'm up at 530. I'm working my day job at maybe by 7 or 730 which didn't I didn't quite used to be up that early. I'm just having the extended day a little bit.


Hannah McCarthy: [00:08:01] So Miley is up. She does her financial advising thing and then.


Maile Foster: [00:08:05] I try to go into campaign mode about 3:00.


Maile Foster: [00:08:13] At least probably an hour a day raising money and then either phone calls or coordinating Fund-Raising events and things like that. Now I'm really trying to meet people especially people in my district to understand what I need to do to earn their vote. I learned something about myself is that it was hard for me to do more than two hours of walking when it was 90 degrees.


[00:08:44] Even with all these advances and changes that have morphed the political landscape since say, the "I like Ike" era.


[00:08:51] U. Like Ike, I like Ike everybody likes Ike!


Nick Capodice: [00:08:53] It sounds like campaigning is pretty analog.


Hannah McCarthy: [00:08:58] Well voters need to see you right. They need to know your face. They need to hear your voice especially if they have no idea who you are. That means thousands of candidates around the country flooding the Internet television radio your mailbox your doorway with their face and their message.


Leah Askarinam: [00:09:25] So a lot of the kind of work that goes into a midterm campaign on the challengers end is just making sure that voters know who they are.


Hannah McCarthy: [00:09:36] This is Leah.


Leah Askarinam: [00:09:37] I'm Leah Askarinam. I'm a reporter and analyst for Inside Elections with Nathan Gonzales. We provide nonpartisan analysis of gubernatorial and federal races.


Hannah McCarthy: [00:09:48] Leah makes clear that even step 1, making sure voters know who you are cannot happen without a lot of cash.


Leah Askarinam: [00:09:57] Without money nothing else really matters.


Hannah McCarthy: [00:10:00] And that once you've got that money it's a matter of appealing to voters and in a midterm election that often means appealing to a country that wants to punish its president.


Nick Capodice: [00:10:11] This comes back to the referendum on the president idea.


Hannah McCarthy: [00:10:14] Exactly and we get into that a bit more in our episode on Why Midterms Matter so make sure to check that out. Anyway let's say there's a Democrat in the Oval Office.


Leah Askarinam: [00:10:23] So you'll see candidates try to say listen I don't like the Democratic Party either.


[00:10:27] I'm Not a Democrat for the powerful. I'll be a governor who empowers you.


Leah Askarinam: [00:10:31] I don't like Nancy Pelosi either.


[00:10:33] But I've said from day one that I won't vote for Nancy Pelosi.


Leah Askarinam: [00:10:36] I like the old Democratic Party and I want to help you the workers.


[00:10:41] It's time we acknowledge that not all Democrats are the same.


Leah Askarinam: [00:10:45] And I want to make sure that you have health care and that you have a good paying job.


Hannah McCarthy: [00:10:49] So it's like when we think about the rules of politicking about sticking to your party's message, Midterms are like this alternate universe in which a party loyalist might end up campaigning against the tenets of their party. And the same goes for voters. With this referendum in the air, some become swayable.


Hannah McCarthy: [00:11:10] So people who are registered Democrats because they are Democrats in the 1980s who have since voted pretty much exclusively for Republicans, to get them to kind of come back to their party. And that's also includes some independents people who maybe formerly were Democrats felt that the Democratic Party abandoned them but felt that the Republican Party wasn't the best fit either.


Nick Capodice: [00:11:35] This may sound cynical but it sounds like the midterms are a perfect opportunity to cash in on disillusionment to say like, I hear you, this party is a real mess. It's been a real bummer. But you can vote for me because I'm not one of those Democrats right? I'm a kinda Democrat you wish still exist. I'm your I'm your grandfather's Democrat.


Hannah McCarthy: [00:11:56] Or you go the route of Maile Foster and run independent right, which means you can campaign on fiscal responsibility and education like Maile is without those commitments carrying the weight of political affiliation. And Maile by the way is an example of one of these kind of soul searching voters. She was a Republican for most of her life and then registered Democrat for a little while before she finally became an independent.


Nick Capodice: [00:12:21] Is there a certain demographic of the population who's more or less likely to be swayed by this independent campaign?


Hannah McCarthy: [00:12:27] I think it varies from year to year along with the political climate. But for example in this year's midterm there has been a lot of attention on suburban white educated women.


Leah Askarinam: [00:12:40] And so you'll see Democrats in other districts try to get those voters. So they are trying to make Republican suburban Republicans feel comfortable not voting for the Republican Party.


Hannah McCarthy: [00:12:53] You might see this with an independent or a moderate Democrat candidate who can sway voters with lets say conservative ideas combined with a strong sense of checks and balances.


Nick Capodice: [00:13:04] But I've seen a lot of these ads and it seems like the strategy is a little less nuanced, like a Democrat who appeals to gun rights activists by shooting a gun the entire time that they're on camera.


[00:13:14] And I approve this message. (bang bang bang)


Hannah McCarthy: [00:13:21] I've seen a lot of those ads.


Nick Capodice: [00:13:22] So many guns in ads!


[00:13:22] And I'll take dead aim at the cap and trade bill.


[00:13:26] I'm a straight shooter.


Hannah McCarthy: [00:13:31] The tactic that you take all depends on where you're running and what pollsters have dug up on your community's demographics and ideas. It's a pretty delicate balance.


Bakari Sellers: [00:13:42] Well I'll just tell you that all elections are tough but a midterm election is a little bit more difficult depending on which party you are part of.


Hannah McCarthy: [00:13:53] This is Bakari Sellers, former state rep from South Carolina currently a lawyer and a CNN commentator.


Bakari Sellers: [00:13:59] If you are a party of the individual in the White House usually you have to run against Washington D.C. as we say and sometimes that gets kind of difficult. You want to stay away from the national politics and just run your own race if you're in the opposition party or if you're a Democrat in 2018. What you want to do is run against the White House and your opponent. If you're running during the mid-term election in 2010 what you saw was many Democrats some Democrats even ran against the Affordable Care Act. Many Democrats didn't want Barack Obama campaigning in their district. You're starting to see a lot of that. Or you're seeing a lot of that in 2018 with Donald Trump.


Nick Capodice: [00:14:35] Seriously so some Democrats in 2010 called up Obama and they were like would you mind just staying away from Nebraska this time of year.


Hannah McCarthy: [00:14:43] Well if the midterm is almost always a referendum on the president right then distancing yourself from the president might be the safer bet in some states. I talked to a political science professor at the University of Wisconsin Madison who got a little deeper into this idea of you know running your own race. This is Barry Burden.


Barry Burden: [00:15:03] So members of the president's party tend to want to make elections about local issues and about them as people so they want to emphasize what political scientists call the personal vote reminding constituents in the district who they are as an individual often kind of identifying with constituents reminding them that hey I grew up here or I share values with you or I've been working for you in Washington where I share the same goals as you so I'm not really part of that Washington establishment. Lots of members of Congress and challengers actually run for Congress by running against it. They criticize the institution and try to convince voters that they will be the ones to go to Washington and help clean up the mess.


Nick Capodice: [00:15:45] So in a midterm election we're seeing personal vote versus the national vote?


Barry Burden: [00:15:51] Democrats say in 2018 would very much like this to be a national referendum and to bring in lots of members of their party so to create a kind of wave or tide or whatever metaphor you like whereas members of the president's party Republicans this year want to insulate themselves from the tide and build a kind of levee or life preserver or something so they can weather the storm.


Hannah McCarthy: [00:16:11] In these uncertain waters. You can think of the president as either your buouy, or the cement shoes dragging you to the bottom. The party not affiliated with the president swims toward what's going on nationally while the party represented by the president might do better staying far away from the shore where it's safe.


Nick Capodice: [00:16:34] So what is the president's job during a midterm in terms of campaigning? Because he's got some people who are trying to steer clear of his messaging and policies and there's others who are on the attack against it.


Barry Burden: [00:16:45] It's a delicate dance for a president in a midterm they want obviously to help their party keep their party's seat share in the legislature if not grow it or minimize the losses. They will do a lot of fundraising and some of that is out of public view. So they're doing private fundraisers gathering millions of dollars and then trying to distribute that to members of their party who could use the funds who are really in some close races and would benefit from some additional campaign money.


Nick Capodice: [00:17:14] OK so the president is using his position of power to generate some cash flow even if he isn't straight up campaigning for candidates in his party.


Hannah McCarthy: [00:17:22] Right. And there are areas of the country where it's totally helpful for the president to campaign but he's got to be strategic.


Barry Burden: [00:17:31] In terms of going out on the campaign trail and giving stump speeches. They're going to be careful about that. They don't want to go into places where they're unpopular and they might create kind of a backlash and remind voters that the candidate in that state or district who's from their party is also linked to the president and that might kind of amplify the penalty that that party faces. So you know they will often deploy to safe districts where they can raise a lot of money and help somebody who's on their side.


Hannah McCarthy: [00:17:59] So here's the deal. There are plenty of places in the country that are solidly overwhelmingly for the president and those districts matter. But to me they're kind of the whitebread of the midterm elections. They're predictable they're the safe bet. If you want to understand what makes midterms unique, what gives them a personality all their own, look to the districts where things are up in the air. A midterm election takes a swing state a swing town and truly tests the mettle of candidates in that area.


Nick Capodice: [00:18:34] How is this different from every other election year. We're always looking at swing states to see how things are going to shake out.


Hannah McCarthy: [00:18:39] The big difference here is turnout. It's lower in a midterm year than it is in a presidential election year and fewer voters mean higher stakes when it comes to campaign messaging especially because the people turning out to vote tend to be driven to the polls by strong conviction. If you can swing the electorate in your direction in a midterm, especially if that direction is away from their typical status quo, then you've accomplished something huge. The candidate who manages to pull that off has played the midterm campaign game to a tee. And if enough candidates do just that it can change everything like a peaceful revolution coordinated and precise campaigning in a midterm election can shake state sometimes even Federal Congress and flip control. This doesn't happen often by the way.


Hannah McCarthy: [00:19:32] It takes some crazy political will and circumstance but it is possible in the past three decades we saw this in 1994.


[00:19:41] Democrats lost the house they've controlled for all but four years since 1932 they lost the Senate they controlled for all but six of the previous 40 years.


Hannah McCarthy: [00:19:51] 2006.


[00:19:52] Good evening. Call it a revolution or a repeal. Democrats are now in charge in the house they needed 15 seats to retake the majority.


Hannah McCarthy: [00:20:01] And 2010.


[00:20:03] Republicans will take control of the House of Representatives.


Hannah McCarthy: [00:20:13] It is really hard to pull off a total switch of power changing who holds the reins at the very top. But with the right political climate and some intense campaigning midterm elections can change everything.


Hannah McCarthy: [00:20:37] Before we go I want to take you inside of one of those crazy landscape changing elections of the past. It's considered a full blown political revolution and Brady Carlson host and reporter at Wisconsin Public Radio is here to break it down which midterm are we talking Brady


Brady Carlson: [00:20:55] This is the midterm of nineteen ninety four and if modern Americans know about any midterm in particular, 1994 is often the one that they know about. Well the first player is Bill Clinton. He was in the middle of his first term as president the first Democrat to win the White House in 12 years.


Brady Carlson: [00:21:16] The man from Hope.


Bill Clinton: [00:21:17] Now I was born in a little town called Hope Arkansas. Three months after my father died.


Brady Carlson: [00:21:23] And everybody talks today about how charismatic he was and how popular he was and that wasn't necessarily the case when he first got started. He ended his term as a relatively popular president. But in the early going he ran into lots of roadblocks.


Brady Carlson: [00:21:45] Remember the first few issues that he made policy moves on. Like the expansive health care proposal.


[00:21:52] Our health care is too uncertain and too expensive.


[00:21:55] The Brady bill so he's adding waiting periods and background checks on guns.


[00:21:59] The Brady bill is not just symbolism.


Brady Carlson: [00:22:02] From lifting the ban on gay service members.


Bill Clinton: [00:22:05] The debate over whether to lift the ban on homosexuals in the military has to put it mildly sparked a great deal of interest over the last few days.


Brady Carlson: [00:22:13] These were all big pushback items at the time and even the things that he did manage to get through like he got approval for the North American Free Trade Agreement NAFTA that wasn't massively popular with the Democratic base. And this is all at a time when there's also talk about like the Whitewater real estate scandal, continued rumors of womanizing,.


[00:22:39] What she calls a 12 year affair you... That allegation is false.


Brady Carlson: [00:22:46] So these are all things that are working not in Clinton's favor classic ingredients in that midterm losses stew. And at the same time you have Republicans launching this very well organized well funded and national campaign to win seats in Congress. This is where they launched what was known as the contract with America. It was a set of bills. They said if you choose us in the midterms here's what we'll do in office.


[00:23:14] We are going to get to the final recorded votes in the first 100 days on every item.


Brady Carlson: [00:23:24] And a lot of opposition parties will just campaign against whoever's in power. And this is a case where the opposition party was also offering an agenda.


Brady Carlson: [00:23:35] The Democrats had majorities in both houses they had had a majority in the house for decades the Senate had gone back and forth a few times but there were pretty substantial majorities for the Democrats in both chambers at that point. 1994 was the biggest loss by the party in power in a generation.


[00:23:58] That Capital is a very different building this morning it is in Republican hands solidly in Republican hands.


Brady Carlson: [00:24:07] Democrats lost 52 House seats eight Senate seats and so was the first time Republicans had majorities in both chambers of Congress since 1950. For the Speaker of the house was one of the Democrats who lost his seat. And at the state level it was big for Republicans too. So their candidates were beating prominent national Democrats like the then governor of New York Mario Cuomo. People know his son Andrew Cuomo as governor today or the then governor of Texas Ann Richards who lost her position to the Republican challenger who was a then baseball executive named George W. Bush.


[00:24:48] I like to go to ball games and I try to you know lend a sense of the kind of fans owner.


Brady Carlson: [00:24:53] And so what happened was the Republicans led by the new speaker of the House Newt Gingrich of Georgia started talking about this election in terms of a Republican revolution. That people weren't just repudiating a first term president. This was a case where the American people had chosen a new majority party and they wanted a new course for American politics. Things were going to be different from then on. And for a while it actually sounded a little bit like that was what was going to happen. I remember a couple of months after that midterm there was a press conference from President Clinton and he responded to one of the reporters questions by basically saying yes everybody is paying attention to Speaker Gingrich and the Republicans. But I'm still relevant. I'm the president. I still have something to add to this.


Bill Clinton: [00:25:46] The president is relevant here especially an activist president and the fact that I am willing to work with the Republicans.


Brady Carlson: [00:25:52] What an extraordinary thing to happen that the president of the United States has to remind you that he's relevant.


Brady Carlson: [00:26:00] Well this was the catch that Republicans had become convinced that they had won midterms because of the Contract With America that voters had chosen them and that because of that voters were choosing their policy agenda. And some voters were of course but not all of them. I mean a midterm is still a midterm. Even if Republicans offered policy agenda and offered a contract with America offered legislation there were still a lot of people who may have voted for that party's candidates who are really just mad at the new president and wanted to balance out his power.


Brady Carlson: [00:26:42] And so the Republican majorities as they were starting to put some of this legislation out there, the bills to change welfare programs the bill change taxes, they started to see pushback to those policy plans just like the Clinton administration had seen pushed back against its plans. And at the same time that you're seeing that opposition President Clinton who is still relevant as he said found his political footing again he had tack to the left when he started and that didn't work. So he tacked back toward the center. He basically coopted some of the more popular parts of the Contract with America and very vocally criticized and campaigned against the less popular ones. So he had rebranded himself at the same time that the Republicans had tried to write him off. TheU.S. economy had started to improve. And so you have this rapidly changing political climate again. And so two years after Bill Clinton had basically been written off by a lot of people he was winning re-election.


Bill Clinton: [00:27:54] Tonight we celebrate the miracle of America. Tomorrow. We agreed on and began our work anew.


Nick Capodice: [00:28:06] Thanks for listening to Civics 101. There is a whole lot more where that came from in our series on the midterms. Make sure to become obsessed with it as we are.


Hannah McCarthy: [00:28:15] Today's episode was produced by me Hannah McCarthy with Nick Capodice and Jacqui Helbert. Erika Janik is our executive producer.


Nick Capodice: [00:28:22] Maureen McMurray is a straight shooter all the way.


Hannah McCarthy: [00:28:24] If you want more Civics 101 or you've got a burning question about how this whole crazy democratic experiment actually works we have got a Web site for that You Can also follow us on Facebook or Twitter @civics101pod.


Nick Capodice: [00:28:40] Music in this episode is by Diamond Ortiz Poddington Bear Jahzaar Dan Liebowitz and our old friends Blue Dot sessions.


[00:28:48] Civics 101 is a production of new Hampshire Public Radio.





Made possible in part by the Corporation for Public Broadcasting.

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This podcast is a production of New Hampshire Public Radio.

Midterm Edition: House v Senate

Two houses, both alike in...well, many things.  But oh so different in many others. We go from absolute basics to the philosophical differences that exist in the Legislative branch. This episode features the opinions of former staffers from both chambers (Andrew Wilson and Justin LeBlanc) a former member of the CA assembly (Cheryl Cook-Kallio) a CNN political analyst (Bakari Sellers) and the inimitable Political Science professor from Farleigh Dickenson, Dan Cassino.

Also, Brady Carlson tells the tale of the biggest loss in midterm history, though we did get a federal holiday out of the deal.

Episode Segments

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101

House v Senate


Archival Audio:  Mr. President, Mr President I call my amendment per the order. The court will report the amendment...


Hannah McCarthy: Nick, What is going on why are you making me listen to this?


Nick Capodice: Ok this is from a youtube video from 2009 and it’s called Senate Chaos. Senator Bernie Sanders from VT he’s just proposed an amendment to a healthcare bill, and as usually happens,  he asks the amendment be considered as read.  Since senators usually get these bills and amendments in advance, there’s no need to read them aloud.


Archival Audio: (I object, objection is heard)


Nick Capodice: Alright, Right there, Senator Tom Coburn from Oklahoma (I object) objects.  So the clerk has to read the whole thing aloud. It’s 767 pages. That would take over 14 hours. After two hours of reading, Sanders withdraws the amendment. Alright, Listen to this.


Archival audio: And had the courage to change from green to red or red to green! (chants of ‘Shame, shame, shame!)


Hannah McCarthy: Whoah, what is going on


Nick Capodice: What’s going on Hannah is the House of Representatives. Such a magical place.


Nick Capodice: Welcome to Civics 101 I’m Nick Capodice

Hannah McCarthy: And I’m Hannah McCarthy


Nick Capodice: And we’re continuing our series on the upcoming midterms. Today? Something many Americans are going to see on their ballot, and a question I’ve wanted to ask since day 1. What is the difference between the House and the Senate?  


They mostly have the exact same powers, with a few exceptions which we’ll talk about, but they both propose bills that might  become laws. Bills can start in either the house or the senate, but they have to be passed by both houses before they go to the president to be signed into law. Though to really understand their key differences, we need to go back...through the annals of history.  

Hannah McCarthy: Please don’t do this.


Nick Capodice :  Oh ho, it appears we’re at the old City Tavern in Philadelphia in 1787, Hannah!


Hannah McCarthy: Please


Nick Capodice:  Why is that James Madison over there? The Sage of Montpelier?


Archival: Yes but ours will be different. Since our plan expands the powers of congress, we will check that power by dividing it into two houses; an upper house, and a lower house.


Hannah McCarthy: What is that from?


Nick Capodice: You’ve never seen A More Perfect Union, the bread and butter of the 8th grade social studies class?


Nick Capodice:Ok, fine. Forget it. Scrap it. But What I’m tryin’ to get at is, During the great debates at the constitutional convention, there was this huge question of representation. Who should make our laws? How many people? Should the big states have more power, because they have a bigger population? Or should all states have equal representation? To make a long story short, we’ve ended up with both. We have a two house Government. A bicameral legislature.  The names can be kind of tricky though. Here’s teacher and former California State Assembly member Cheryl Cook Kallio


Cheryl Cook-Kallio: And so Congress is technically both the House of Representatives and the Senate. Members of the Lower House, the House of Representatives have always been addressed as Congress Members, and members of the Upper House have been addressed as Senator.  


Hannah McCarthy: So a senator is technically a congressperson, but you would never call them that.


Nick Capodice: Yeah, no, and the senate is technically one of the ‘houses’ in congress, but when we say ‘the House’ we mean the house of Representatives.


Hannah McCarthy: I’m glad we got that out of the way I have always wondered.


Cheryl Cook-Kallio: the Framers created a two house legislature in order to make sure that the needs of the people as well as the states were addressed. The House of Representatives, the length of term is shorter it's every two years. It's a more frantic place. It takes on a sense of urgency. The Senate on the other hand is up every six years.


Nick Capodice: Length of term is a major thing that differentiates the house and the senate. The next key difference is the number of members. Our current House has 435 members apportioned by state population; California has 53 congresspeople, we in NH have 2. And the senate has 100, two from each state.


Dan Cassino: The founders were trying to give the public some power for trying to have some element of democracy. The problem is they didn't trust the people as far as they could throw them.


Nick Capodice: This is Dan Cassino, political science professor at Farleigh Dickinson University


Dan Cassino: They didn't like the people at all. They even called democracy mob-ocracy because they don't like the idea of the people actually running anything. The reason we have the House of Representatives is to give the people a voice but to make sure that voice can't actually do anything. The House is supposed to be representative of the people but as far as the founders are concerned the people the United States were kinda like the people of Springfield and The Simpsons;




Dan Cassino: They're ready to jump on any bandwagon with pitchforks and torches and protest against anything. And we've seen this repeatedly throughout American history. In the early 19th century. We had the first major third party in American politics the anti-Masonic party, a party devoted entirely to a conspiracy theory that Masons were murdering people in upstate New York dumping the bodies, then masonically-oriented police and judges were covering the whole thing up.


Hannah McCarthy: That was their sole platform? Not liking the Freemasons?


Dan Cassino: That seems a little ridiculous except those folks into Masonic party won a bunch of seats and statehouses and even won a bunch of seats in the House of Representatives. So why does it matter? Well the Founders saw this. They thought this would happen. So what they did was they made it so the house or reserves couldn't really do anything. House of Representatives is subject to the whims of the people. So if anti-Masonic party is really popular for two years, guess what they can take some seats in the House. But if they took every seat that was up for them in the Senate they could never control more than a third of the Senate. The House is there to represent the whims of the people. The Senate is there to make sure that the people can't  actually get anything done.  Now that's inefficient of course. But that's exactly the way the founders set things up. The people can pass whatever they want in the house and it'll die in the Senate.



Hannah McCarthy: So it sounds like Dan is saying the senate is...should I say superior? Superior to the house?

Nick Capodice:I don’t know! I mean, the house does get some bills out there. I’ve gotta be fair, but Dan told me that number it’s like 9%.

Hannah McCarthy: Wow

Nick Capodice: And most of them are pretty uncontroversial bills.

Hannah McCarthy: So like naming a holiday or something like that

Nick Capodice: Yeah. And in the Senate honestly it’s not too much better right now, it’s about 15% of bills proposed in the Senate become law. But back in the 60s it was much higher, over half of Senate bills became law.

Hannah McCarthy: I want to know what they think of each other, does the House have an inferiority complex?

Nick Capodice: Well let’s see what they have to say for themselves. I got a former senate staffer, Justin Leblanc



Justin Leblanc: We jokingly often refer to the House and the Senate with reference to what the British Parliament calls them and that is obviously the House of Commons and the House of Lords. The Senate chamber itself is I think very austere. You feel like you're walking on sacred ground.


Nick Capodice: And a former house staffer, Andy Wilson


Andy Wilson: Despite the House and the Senate being coequal branches of government, there's very much a feeling of the Senate is sort of the upper chamber


Hannah McCarthy: Wait, are they coequal?

Nick Capodice: They are, but that doesn’t stop the sense that one of them is more ‘uptown’


Andy Wilson: It's more stately it's more dignified etc. So there's sort of a different feeling about even the Senate side of the Capitol complex versus the House side.


Nick Capodice: Justin and Andy have both left congress since, Justin is now the founder and president of Lobbywise, and Andy works for a PR firm in NYC.


Andy Wilson: Well I'm I'm a House guy so I quite enjoyed the the free flowing nature of the House. Other members other people that might have worked in the Senate might might feel more proud of having sort of that stately Senate vibe. But I like the House.


Hannah McCarthy: I think I might be a house gal

Nick Capodice: It sounds like a little more fun, doesn’t it? Look, I want to make it clear, Andy and Justin were in no way throwing shade towards each other’s chambers, but there is some good-natured ribbing that goes on.

Hannah McCarthy: So I’ve got a good feel for their differences due to size and term length, but what are the specific differences in their powers?

Nick Capodice: here’s what Justin said about that.


Justin Leblanc: I think the most significant difference between the Senate and the House really comes down to two things. While they both have to pass legislation and they have to pass the identical legislation in each chamber before it can go to the president for signature into law, only the Senate has the the constitutional responsibility and authority to advise and consent the White House on treaties and so any treaty agreed to by the White House has to be approved by the United States Senate. The House does not have such similar authority.


Nick Capodice: And not just treaties, but the senate confirms all Presidential appointments; cabinet secretaries

Hannah McCarthy: Secretary of state, secretary of defense, etc?

Nick Capodice: Yeah, and ambassadors, and Supreme Court Justices.


Justin Leblanc: And then on the flip side all appropriations measures that is all measures that fund the federal government,  those let, those bills must begin in the House. The Senate does not  have the authority to initiate an appropriations process.


Nick Capodice: This has a fun name by the way, the “Power of the Purse”, the framers wanted the House, the voice of the people, to be dominant when it comes to how we tax and spend money. The Senate cannot make money bills. But besides, money, there’s also impeachment powers. Here’s Cheryl Cook Kallio again.


Cheryl Cook Kallio: The other specific job the House of Representatives have is that any articles of impeachment for any elected federal official goes through the House of Representatives. If they are if they are passed in the House of Representatives, the trial is held in the Senate. That's a specific job of each house.


Nick Capodice: Voting is different, too.


Andy Wilson: In the House. It's a majority rule. So in order to pass a piece of legislation in the house it's 50 percent of the votes plus one. So if you know if the Republicans have a 20 seat majority they can basically do whatever they want whereas in the Senate people might be familiar with the filibuster which frequently requires 60 votes for something to pass.

60 percent of the of the Senate has to agree for something to be passed which requires a great deal of consensus a greater deal of coalition building even once a party is in majority they may not have enough to pass that 60 vote threshold. And so you have to work with the opposing party or at least some members of the opposing party. So it's much more of a collegial feeling in the Senate versus sort of our side versus your side view and feeling in the House of Representatives.


Hannah McCarthy: It kinda sounds like the filibuster, which we kinda think of as a strongarming tactic that gets in the way of things, .it sounds like it actually forces people to reach across the aisle and work together.


Nick Capodice: Yeah, and it’s totally different in the house.


Dan Cassino: The House of Representatives has 435 voting members. Now the problem is that’s so many people that you’re never gonna be able to wrangle all of them, if you let everybody talk, they're never going to shut up.  There's one thing politicians love it's the sound of their own voice. As a result the House of Representatives is incredibly tightly controlled. Everything that happened the House Reps as first has to go through what's called the Rules Committee, a Committee that doesn't even exist in the Senate


Hannah McCarthy: What?

Nick Capodice: I know, they don’t have a rules committee


Dan Cassino: and the Rules Committee is going to decide for any bill that comes out of committee, if that bill is ever gonna make it to the floor or not;  what terms that bill would be argued under and how much debate you' re going to have. Now we say how much debate you might be thinking to senators, two representative to come up and debate and talk back and forth but that never actually happens outside of Hollywood and in the House of Representatives, the most common rule we get is what's called a closed rule meaning there's gonna be no amendments allowed whatsoever. And they’re gonna allow somewhere around 15 minutes of debate. So you get 15 mins of Republicans talking about the bill 15 minutes of Democrats talking about the bill and then you're going to have an up or down vote on the bill. And that's all you're going to get because if they actually allowed amendments, you have all these radicals from both sides there. Nothing is ever going to happen. They’ve basically given up on trying to build consensus in the House of Representatives. House of Representatives is all about mobilizing your party in ramming through whatever you can. And the Speaker of the House because of that becomes enormously powerful if the Speaker of the House doesn't like a bill that bill is dead.


Nick Capodice:  Failure to act on a bill is the equivalent of killing a bill. So the Speaker of the house can just refuse to allow any bill to come to the floor, so it will never be voted on. Unless you do something called a ‘discharge petition’ but that’s gotta be in another episode.

Hannah McCarthy: Gotcha.


Dan Cassino: So the Senate is supposed to be this great debating place where all these members stand up and actually talk to each other and have back and forth and unfortunately that basically never happens. If you watch C-SPAN or C-SPAN or C-SPAN 3 or C-SPAN history if you're a real nerd, if  you ever watch the C-SPANs you'll notice they focus on the person who's talking and never focus on anyone else. They don't show you who's in the gallery. The reason they don't show you that is because there's nobody else. When the members of Congress are speaking. They are in fact talking to themselves. Nobody else is hanging out. Why not? Because they've got other stuff they need to  be doing, either go in a committee hearing or they're raising money which a lot of members of congress spend up five six hours a day doing.


Nick Capodice: And this is something both Houses have in common. Campaigning , a lot. Five to six hours a day to stay in office. Here’s former state rep and CNN political analyst Bakari Sellers;


Bakari Sellers: Let me just say that when you're in the House of Representatives the campaigns never end. You're in a perpetual sense of campaigning because it's that two year period.  You don't stop you don't take a reprieve you win an election and you and you move on to the next elections.  


Dan Cassino: If you want to run for the House the big thing you have to have is name recognition in your community, in a relatively small community 700,000 people for most House seats. You have to people have to know who you are and you have to be able to knock on doors and mobilise people to knock on doors for you.


Nick Capodice: What does it take to campaign for senate?


Bakari Sellers: If you're campaigning for the United States Senate you should have been campaigning your entire life. And there's no there's no waiting until the filing period. And I love to see that you had these like billionaires or millionaires who, or people who have this amazing sense of self and they wait until the filing period which is usually like March for June or July or August primary and they think they can just parachute in and run a race and spend money on TV.


Dan Cassino: If you want to for the Senate the big thing you need is either be really rich yourself or to know a whole lot of rich people because that Senate race is gonna  cost you tens of millions of dollars and you're never able to knock on enough doors. So the types of candidates you get are going to be very very different. This is also one of the reasons why we see a lot more women running for the House than we do for the Senate. While women are able to mobilize other voters just as well as anyone else they actually have a harder time raising money because they don't necessarily have the business connections because of lots of other things going wrong in our society. They'll let them easily run for the Senate.


Nick Capodice: And that doesn’t just effect gender in the Senate


Bakari Sellers: It's you can literally still count on less than two hands. But you know if you go back in history and you're talking about Ed Brooke and Mo Cowan and Carol Moseley Braun and Cory Booker and Kamala Harris and Tim Scott. I just ran through... there may be one that I'm missing or two but I just ran through the African-American members of the United States Senate in history. And so it's a very it's a very deliberative body. But it's also a very old white male body as well. Usually there's a sense of patriarchy that puts you in a position to run for that office.


Nick Capodice: And going by the numbers he’s right, as of this recording, October 2018, there have been 10 total African-American US senators. Ever.


Hannah McCarthy: So 10 total in the history of the country


Nick Capodice: Ten total in the history of the US. Currently the senate is 1/50th African-American but by contrast the house is 10% African-American, so it’s a huge difference.


Hannah McCarthy: Yeah it is huge.


Nick Capodice: I asked Justin and Andy, former congress staffers,  for their final thoughts on both Houses and the system as a whole


Justin Leblanc: The elected officials your elected officials and their staff work incredibly hard and they're they're not particularly well-paid and they're working long hours. Most senators and their staff are in the office from 7:00 or 8:00 in the morning until 9 or 10 at night every day of the week. And when they when they go home they're working all weekend. And when we talk about congressional recesses that is times where the House and the Senate are not actually in session and can't vote on legislation, they're not on vacation. Their staff are still showing up on the Hill every day to do their jobs. And the members are back in their states continuing to work. And so whether you agree or disagree with the policy positions your elected officials may take, I would never accuse any one of them or their staff of being lazy or not hardworking.


Andy Wilson: Sometimes it's easy to look at the House of Representatives or the Senate or the Executive branch and think of it kind of like a machine. It's just this big bureaucracy that exists and it kind of churns on and on and on. But it's really a very human enterprise. It's really about how do you work with your colleagues. How do you have relationships with them. And you know who do you know well do you work with well et cetera. So it's very much a human enterprise. The second piece which follows off on that is its own the system is only as good as the people that are involved in it whether that's voting whether that's running for Congress or whether that's working as a staffer, whether that's getting involved in local political debates or local government issues, state government issues county government issues et cetera. So it's easy to sit back and say these bums don't do anything or they're good for nothing or something like that but it's really just a bunch of people that are elected by people in states and districts across the country. And so if you have a complaint or if you have a priority then the only way to to push for it or the only way to make a difference or make things different is to get involved and you can do that.


Hannah McCarthy: I have one last question

Nick Capodice: What is it?

Hannah McCarthy: It...I mean it just all sounds so ridiculous.  Senators talking to an empty room, the House not even debating, everybody stopping anything from getting done

Nick Capodice: Yes, so that was my final question for Dan, it sounds like the whole thing is broken. That it is a farce, that it doesn’t work. Is that true?


Dan Cassino: Even though all this is absurd all the we were doing things and passing bills is absurd it doesn't make any sense, this is exactly the way the founders wanted it to work. The mechanisms like cloture and filibusters and gerrymandering, none of that was forseen by the founders, but the general principle, the house is subject to the whims of the people, the anti  Masonic party the Tea Party whatever, they get in there. They pass crazy bills that should never work and they're allowed to do that because that's what the people want and then it goes the Senate and the Senate doesn't do anything. And that's exactly the way the whole system is supposed to work. The Senate is supposed to be the branch of government that stops anything from ever actually happening. And today we view that as a bug we think that's a bad thing we want our government to be really much more efficient. The way you see parliamentary systems working in most the world. But our government is not set up to be efficient. It's set up to be inefficient. It's set up to make sure that no big change can actually happen unless the voters for years on end, four six years all are voting in support of this and all three branches of government are in accord with it. It's really easy to kill a law. It's almost impossible to pass one.


Hannah McCarthy: I’ve never considered that inaction could be a comforting thought.

Nick Capodice: Me neither, and sometimes I need to be reminded that this machine has human hands at the wheel

Hannah McCarthy: Yeah

Nick Capodice:Well, before we go we have our snapshot midterm from us history, delivered by none other than Brady Carlson, former NHPR reporter, current afternoon host at Wisconsin Public Radio, and the author of Dead Presidents.


Brady Carlson: Today we’re talking about the midterm of 1894. It’s not a very well known midterm, but if you wanna talk about a wave election, this was the wave election to end all wave elections. Up to this point, the democratic party had majorities in both the House and the Senate. They had won back congress in the 1892 election when Grover Cleveland had won back the White House from Republican Benjamin Harrison. This is when Grover Cleveland became the only president to serve two non-consecutive terms, so this was his moment with destiny.


A week before Cleveland came back to the presidency, there had been a financial collapse in the railroad industry. And that sort of tipped off the domino train. A number of key industries fell and the market fell as a whole and this is what was later known as the Panic of 1893.


So the Democrats have just returned to power, they’ve got the White House, they’ve got majorities in congress, and the economy falls apart. People were calling on the president to do something about the panic, there was even a march on Washington. Grover Celeland saw himself as what’s sometimes called a Guardian President. His thinking was Congress steers the ship of state, the president really only steps in to administer the laws and to stop congress when they go too far, so he didn’t really think it was up to him to get in the way of the economic cycle and intervene in the economy.


The catch was that a lot of the people who had put him back in power were workers, immigrants, farmers, the people who were being hurt by the panic. And at the same time in 1894 there was a very prominent railroad strike, the Pullman Strike in which hundreds of thousands of railroad workers walked off the job. They had had their wages cut and they were protesting. And this is the time where the president thought he should step in, so he sent Federal troops to break it all up and that got plenty of pushback, though as a conciliatory gesture he proposed  the holiday in honor of workers that we now call Labor Day.


So it was sort of a way to get everybody to feel like they had been heard even when they maybe quite hadn’t been.


In the midterm of 1894 Cleveland and the democrats had 220 seats in the House and they lost 113 of those. The biggest loss in history. And then they also lost enough seats in the Senate, not nearly that many, but they lost enough in the Senate to  lost majority control there, so they went from having all the power to almost none of the power, and they wouldn’t regain those majorities in congress for almost two decades. So it was really a political version of what goes up must come down.


 It was really a case where people were saying; we blame you for this and we are going to put other people in power because we don’t think what you’ve done is the right policy and the right way to handle this economic crisis.


Nick Capodice: Thank you Brady for the story of the greatest lost in midterm history. Today’s episode was produced by me, Nick Capodice and Hannah McCarthy.


Hannah McCarthy: Our staff includes Ben Henry and Jacqui Helbert, our Executive Producer is Erika Janik, Maureen McMurray is totally a House Gal.


Nick Capodice: Music for today’s episode comes from Blue Dot Sessions, Creo, Broke For Free, Jahzzar, and Electric Needle Room. Special thanks to one of the NICEST greatest member stations out there, WOVV in Okracoke


Hannah McCarthy: More midterms prep is coming down the pipe, so be sure to subscribe! You can also say hi and listen to all our episodes at


Nick Capodice: Civics 101 is a production of NHPR, New Hampshire Public Radio.





Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Midterm Edition: State and Local Elections

Midterm elections don't have the glitz or drama of presidential campaigning. They're full of aldermen and comptrollers, state senators and governors. These offices seem meager next to national government. But most of the time, it's state and local officials that have the most immediate and palpable impact on our lives and on our future elections.

In episode two of our five-part series on the midterm elections, we're taking a good look at the state and local offices that have a big-time impact on your life. 


Episode Segments

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Midterm Edition: State and Local Elections

This transcript was created using a combination of machine and human transcribing, so there may be some typos.

Hannah McCarthy: [00:00:00] Nick as you know in our last episode we talked about what midterm elections are and why they matter. You know all the sweeping implications stuff how midterms can affect the country with congressional redistricting and this referendum on the president and potentially flipping the House and the Senate and infusing Congress with all of these new ideas and setting the stage for massive change.

[00:00:23] But today I want to think small.

Nick Capodice: [00:00:28] Small like what kind of small?

Hannah McCarthy: [00:00:30] Small like local small.

[00:00:33] Let's start with the town up north in New Hampshire with about 7000 residents that is small. In August I drove up to Plymouth New Hampshire. It's a little college town in a place called Grafton County really charming. There's a town green with a gazebo and old timey diner Covered Bridge of course got a covered bridge.

[00:00:54] It's very New England and across the street from the town green in what used to be a bookstore is the office of the Plymouth area Democrats.

[00:01:06] So that's the sound of people doing the wave.

Nick Capodice: [00:01:09] Which wave.

Hannah McCarthy: [00:01:09] The blue wave.

[00:01:13] There were campaign signs leading up against the wall they had a life size cutout of Obama.

[00:01:18] There was a potluck party atmosphere in the room and I was there to meet this gentleman.

Jeff Steigler: [00:01:25] My name is Jeff Steigler and I am currently the police chief in Bradford Vermont.

[00:01:30] I am currently campaigning for Grafton County Sheriff.

Hannah McCarthy: [00:01:33] Jeff lives in New Hampshire but works just across the border in Vermont.

Jeff Steigler: [00:01:37] This is the first time I've ever asked the public for their support and obviously for their vote on both the primary and hopefully the general election. Also Franklin

Hannah McCarthy: [00:04:16] This was a Grafton County candidate night. The second one that week and Jeff was there to introduce himself and to convince people to vote for him in the New Hampshire primary and to explain exactly what it is that a sheriff does.

Jeff Steigler: [00:04:29] It's actually a constitutional position stage in the state constitution. But any of your listeners could Google are say one of four and you'll see what the primary functions but at the core of what the sheriff's department has to do.

Nick Capodice: [00:04:40] So did you google it.

Hannah McCarthy: [00:04:41] Of course I googled it.

Nick Capodice: [00:04:42] What did you find out.

Hannah McCarthy: [00:04:43] Well first and foremost in New Hampshire we call laws are essays. It stands for Revised Statutes Annotated and our essays include what amounts to a job description for elected officials. For example how an elected sheriff can and ought to lay down the law. They transport prisoners deputise bailiff's.

Nick Capodice: [00:05:02] Bailiffs like bull in night court.

Hannah McCarthy: [00:05:04] Right okay there you go.

[00:05:05] Yep bull was probably deputized by the sheriff. Until I spoke with Jeff Stigler.

[00:05:10] I really didn't know what a sheriff did or frankly the difference between county sheriff and local police chief. But every time I voted for a sheriff I was voting for someone who has major responsibility and it's the same deal with everything from governor to school board members to comptroller.

Nick Capodice: [00:05:26] What actually is a comptroller by the way?

Hannah McCarthy: [00:05:27] They're kind of like a state's chief financial officer. But the point is that there are a lot of obscure offices on the ballot and they can seem insignificant next to federal candidates like who cares about the railroad commissioner when you've got some flashy Senate race going on.

Nick Capodice: [00:05:41] Oh I have a feeling that we care we care.

Hannah McCarthy: [00:05:43] This is Civics 101 a refresher course on the basics of how our democracy works. I am Hannah McCarthy.

Nick Capodice: [00:05:49] And I'm Nick Capodice.

Hannah McCarthy: [00:05:49] And today we continue our five part series on the inner workings of midterm elections. But a closer look at the local and state offices you'll be voting on this November like Sheriff judge and governor. They may go by different names depending on where you live. But either way state and local offices can have a big time impact on your life.

Cheryl Cook-Kallio: [00:06:08] The issue with midterms is that I think we train people to be very hyper focused on national elections but most elections that are local are closer to the people.

Hannah McCarthy: [00:06:18] That's Cheryl Cook-Kallio, former high school teacher.

Nick Capodice: [00:06:20] For 39 years.

Hannah McCarthy: [00:06:22] And former Councilwoman and former candidate for California's state assembly.

Cheryl Cook-Kallio: [00:06:26] Will our house in California is called the Assembly and there are different names in different states.

[00:06:31] Most of them are House of Representatives but in California it is the Assembly.

Hannah McCarthy: [00:06:35] And she says that yes of course it is important that we have good Congresspeople and good senators.

[00:06:40] But.

Cheryl Cook-Kallio: [00:06:41] But whether or not you get a stop sign at the end of your street is really dependent on the kind of city council you elect county supervisors have control over regional issues that have to do with transportation and maybe even water. And so midterms are often ignored because there is no presidential candidate but they may be even more important because there's such a low voter turnout during a midterm election.

Hannah McCarthy: [00:07:04] So think of it this way. What is more likely to affect you. Nick capital on a daily basis theU.S. defense budget or the road in front of your house.

Nick Capodice: [00:07:11] I'm going to definitely say the road.

Hannah McCarthy: [00:07:13] It's the road the.

Nick Capodice: [00:07:13] It's the road.

Cheryl Cook-Kallio: [00:07:15] One of the things that an individual can do is pay attention to those things are most important to them. In most cases that's local politics your school board your inner city council county supervisors and perhaps your state legislature depending on the size of the state.

Hannah McCarthy: [00:07:29] So many of the people who keep your city or your town running smoothly or possibly not so smoothly get elected during midterms. You've got school boards for instance they can set school policy. Decide how the money gets spent. Even decide whether or not to close a school you've got county commissioners who can be in charge of everything from assuring water quality to collecting property taxes some even control public welfare programs and Nick judges. We vote for the people who are in charge of sentencing people to fines probation even prison in many cases. It is in our hands to decide who gets to make those decisions.

Nick Capodice: [00:08:08] What about something like the Register of Deeds.

Hannah McCarthy: [00:08:11] Yes I was so curious about register.

Nick Capodice: [00:08:13] We've seen signs for that all over the neighborhood.

Hannah McCarthy: [00:08:15] Everywhere.

Cheryl Cook-Kallio: [00:08:15] Oh Register of Deeds. OK. That's probably what we would call the clerk which has to do with all the paperwork in your life that is important your marriage your births the deed to your house those kinds of things are done and usually that's controlled by someone who is elected. So there are things like this that may or may not affect you on a daily basis but they certainly control the legalities of what you do in your everyday life.

Nick Capodice: [00:08:39] Nick what gets me about all of what Cheryl is saying is that you know when we complain about government and inefficiencies and taxes and all that stuff I feel like most of us are directing that complaining that I are at the federal government. You know the whole joke. Thanks Obama.

Nick Capodice: [00:08:56] Yeah.

Hannah McCarthy: [00:08:57] You think we're mad at the president we're mad at the federal Congress. And then there's this vague sense that the people at the very top are the ones who make things good or bad for us. But a lot of the structure in our lives is controlled at the state and local level.

Nick Capodice: [00:09:11] So basically it seems like we should be paying as much attention to these smaller elections in offices as we do to day the presidential election.

Hannah McCarthy: [00:09:19] Yeah I mean powers vary from state to state. But I would say at least as much like take the sheriff candidate Jeff Stigler who we met at the beginning of the episode if he wins the midterm he'll essentially be public he appointed law enforcement for an entire county races like that probably deserve more attention than they get. But there are offices up for election and midterms that do get some real attention like Governor.

Nick Capodice: [00:09:42] But what does a governor actually do.

Hannah McCarthy: [00:09:44] Or a lieutenant governor.

[00:09:45] For that matter.

Bakari Sellers: [00:09:46] This is very difficult for me. You take somebody who just lost the lieutenant governor's race and ask him about his the job that he could have had you know not only is it difficult I want to tell you how sharp that hurt because my lieutenant governor is now governor.

[00:09:57] OK.

Hannah McCarthy: [00:09:57] That did not start well. This is Bakari Sellers, attorney and former state rep of South Carolina he was in office for eight years and ran for lieutenant governor in 2014. He lost but he had some insights on the positions.

Nick Capodice: [00:10:07] Do you think he was really offended by that.

Hannah McCarthy: [00:10:09] I don't think so. If he was you forgive us.

Bakari Sellers: [00:10:11] I know it was tough. Now Lieutenant Governor and Governor. They. They are different in every state. We now have. If I'm not mistaken two African-American lieutenant governors in the country. So we are making progress on that front. Governor of course depending on your state we have a legislative state here in South Carolina meaning that really our legislature is way more powerful than our governor is but in certain states it's the other way around although the governor has a bully pulpit right.

Hannah McCarthy: [00:10:34] So in the same way that the President is Chief Executive Officer and commander in chief of the country the governor plays that role for the state so they can veto bills just like the president appoint judges just like the president. They may be in charge of the state National Guard or have the power to pardon criminal sentences. And just like the president most governors have someone waiting in the wings in case things go south.

Bakari Sellers: [00:10:59] Lieutenant governors a lot like vice president in the most important job they have is to be prepared. And why do I say that they have to be prepared because just like the vice president of the United States the age old saying is you are one heartbeat away from being president.

Nick Capodice: [00:11:13] So governor and lieutenant governor are a little like the president and the vice president. If their powers were limited by state borders.

Hannah McCarthy: [00:11:19] Yeah and Bakari says these are really important roles to watch because the person who you elect governor in this year's midterms they might end up being on a different place on the ballot later on when you have a governor.

Bakari Sellers: [00:11:29] You have to think that your governor has only one election away from running for president the United States. In Massachusetts you've had Mitt Romney run for president the United States.

Nick Capodice: [00:11:37] Lots of presidents were governors before the presidency Thomas Jefferson Teddy Roosevelt Jimmy Carter George W. name a few.

Bakari Sellers: [00:11:43] But you see governors run all the time. You're going to have a series of governors who step out there and run for president the United States and so when you each step up that you take there's another realm of possibility.

Hannah McCarthy: [00:11:53] That's one area of the ballot that we have not touched on yet. Right. State legislators and they are really important. It varies from state to state. Who in your state legislature you get to vote for in every midterm election. But who you're voting for is really important because aside from actually making the laws that govern you at a state level those legislators are in charge of a process that can decide the outcome of elections.

Dylan Scott: [00:12:16] State elections are not only important for your health care and for your education but also 2018 in particular is important in 2020 will be important as well because next decade we're going to draw new congressional districts which will be the opportunity for to outline these new maps for the congressional districts that we'll have for the next 10 years.

Hannah McCarthy: [00:12:35] That's Dylan Scott Vox policy reporter.

Nick Capodice: [00:12:37] Quick aside. Congressional redistricting sometimes called Gerrymandering depending on who you're talking to is one of those key factors that make these 2018 midterms so important.

[00:12:47] And it's something we actually dig into our first episode five things you should know about the midterms so give it a listen.

[00:12:52] Gerrymandering is a party hand picking their voters.

Dylan Scott: [00:12:54] And so which party is in control of the governor's mansion. Which party is in control of the state legislature will be very important for redistricting starting in 2020.

Hannah McCarthy: [00:13:03] You know some states like California they do have a redistricting commission that's either bipartisan or nonpartisan. But for the most part it's the governor and the state legislature that are calling the shots.

Dylan Scott: [00:13:14] And I think any expert whether partisan or not would tell you this. One of the reasons the Republicans have the sizable majority that they do in the House of Representatives right now is that they were in control of redistricting almost 10 years ago. So not only is this important for people's everyday experience with government and whether they are eligible for Medicaid or what kind of schools their kids go to. But when you look at control Congress it's it's not much of a stretch to say as one of my colleagues wrote recently that the next decade of the House of Representatives will be on the ballot in 2018 and 2020.

Hannah McCarthy: [00:13:45] OK we get a pause here for one second. Because what he's saying is huge. He is saying that your vote in this midterm election may end up deciding who you get to vote for for the next 10 years. I mean think of the possible reverberations of that.

Nick Capodice: [00:14:00] It's more than time because the people who put in power stay in power they keep drawing districts for the next 50 elections.

Hannah McCarthy: [00:14:05] Could be the next hundred elections.

[00:14:07] Dylan also made the point that those state legislators have the power to either facilitate or block initiatives that are coming down from the federal level like theU.S. Congress can say jump in a state Congress can either say how high or they can thumb their noses and stick out their tongues at them.

Dylan Scott: [00:14:22] So under the Affordable Care Act it expanded Medicaid eligibility to cover millions more Americans than it did before the ACA was passed. But they were allowed to decide whether or not they wanted to practice debate and that Medicaid expansion in about 20 states have refused to expand Medicaid directly as a result of the Republican controlled state legislatures or or the governorship.

Nick Capodice: [00:14:44] That's some real Tenth Amendment action their 10th Amendment of course being a super complicated amendment about the division of power between the federal government and the states right.

Hannah McCarthy: [00:14:52] So the whole principle of states rights how states are allowed to govern themselves in many ways. That is a big part of what makes the midterm elections so important. Those are elected officials who are close to us who might have obscure sounding jobs. They actually have the power to make a big impact on our daily lives. It's often the state level legislature that maintains this state justice system that regulates state industry that maintains highways implements welfare decides what to teach kids in schools. And it's the state legislature that decides what a sheriff does and we get to decide who that sheriff is.

Jeff Steigler: [00:15:30] If you're looking for change or if you are thinking about keeping things the way that they are the reality of it is if you don't go out and vote don't complain about it.

Hannah McCarthy: [00:15:37] That's Jeff Stigler again our sheriff candidate from the beginning of the episode. He won the nomination in New Hampshire's primary and now it is up to the voters to decide if he will win the office.

Hannah McCarthy: [00:15:47] All right. Nick so what do you think. I mean state and local elections are kind of a big deal right.

Nick Capodice: [00:15:51] In some ways possibly the biggest deal.

Hannah McCarthy: [00:15:55] Now you're talking before we sign off we have another major midterm from the past brought to you by Brady Carlson.

[00:16:01] BRADY used to work here at NHPR as a reporter and on air host. He's now at Wisconsin Public Radio.

[00:16:07] He's also the author of Dead Presidents which is a great book. Check it out. Take it away. BRADY What midterm are we talking about.

Brady Carlson: [00:16:14] I'm talking about the midterm of 1858. The key issue in the 1950s of course was slavery and that's at the root of everything that takes place in the 1858 midterm up until the 1950s.

[00:16:25] There were two parties the Democrats and the Whigs although really there were kind of four parties because each of the two parties had northern and southern wings. And here's why that matters. While the northern states had more population and therefore more representative Congress the proslavery Southern politicians were still powerful enough that they could block candidates block bills block proposals block anything that didn't fit with their view that enslaving people was not only legal and constitutional but it was morally right and had to be protected.

Archival: [00:16:54] All we've got is cotton and slave arrogance.

Brady Carlson: [00:16:57] To the top political figures of the day rightly or wrongly we're trying to keep this very tense compromise in place and as a result of that effort to to keep the slavery debate from boiling over you have this series of weak presidents in the 1950s.

Archival: [00:17:12] Pierce of New Hampshire is what do you say Mr. Pierce or Mr. Preston Pierce just Mr. President.

Brady Carlson: [00:17:16] James Buchanan of Pennsylvania is another. The parties were deliberately choosing people for president that they thought would be very cautious would not rock the boat and that would have worked except by the 50s the boat had kind of already been rocked over and over. Fewer and fewer people were interested in setting aside this debate over slavery for the good of the country and Franklin Pierce understood that firsthand when he signed the bill to allow the citizens of the Kansas Territory to choose whether to allow slavery or not. And I came all the way from Kansas to make sure just for you.

Archival: [00:17:54] And to ensure the freedom of Negroes in this state. What do you do.

Brady Carlson: [00:17:58] And it didn't go well it turned into the violent conflict. We now called bleeding Kansas and that's recognized today as one of the key milestones on the road to the civil war. It also realigned the political parties by signing Kansas bill Pearce had undone this compromise that had stood for decades where there was a geographic line that slavery could exist south of but never north of. Now slavery could be anywhere and Northerners were very very uncomfortable with that. So when Pierce undid this compromise Northern Democrats who had been uncomfortable with the proslavery wing of the party felt like they didn't have a political home anymore.

Archival: [00:18:37] The government cannot endure permanently half slave and half. Free.

Brady Carlson: [00:18:52] The Northern Democrats decided to leave their party and join up with what was left of the old Whig Party and a group of what were known as Free spoilers people who had opposed any expansion of slavery in western territories. They all joined together in a new party called the Republican Party. There's a lot of debate as to where the Republican Party actually started. My state Wisconsin has one of the claims. The state of New Hampshire has the other. The important thing to know is that this is a very exclusively northern party. There weren't any Southern Republicans and that one of the new Republicans who was an unknown at the time of the party's founding wound up being a pretty important guy a lawyer from Illinois who had been a little known member of Congress like a decade before but was so upset about Kansas that he came out of retirement and joined this new political party Abraham Lincoln.

Archival: [00:19:43] You know who I am. Abraham Lincoln.

Brady Carlson: [00:19:50] The party starts in 1854 two years later their presidential candidate John C. Fremont only narrowly lost the presidential election.

[00:20:00] By the mid-term elections of 1858. The party was on an even bigger upswing. The debate over Kansas has flared up again. It was even hotter this time. There had also been a big economic panic the year before and the new President James Buchanan was alienating just about everybody who came in contact with. Suffice to say voters were pretty fired up and so when the votes were in for the 1858 midterm the largest party in the House of Representatives was the Republican Party which had only begun about four years earlier. And one of the most surprising stories that came out of the 1850 and that term was Abraham Lincoln who had run for a high profileU.S. Senate seat in Illinois. It's one he lost to the longtime incumbent Stephen Douglas. But he had turned so many heads with his speeches in his well-thought-out debate points.

Archival: [00:20:53] A house divided against itself cannot stand.

Brady Carlson: [00:20:53] That he became a national political figure in two years.

[00:20:57] This political nobody who belonged to a brand new unknown party would be elected president of the United States.

Hannah McCarthy: [00:21:09] That is it for this episode in our five part series on midterm elections. But stay tuned we've got more coming at you civics 21 one was produced today by me. Hannah McCarthy Nick Capodice and Jacqui Helbert.

Nick Capodice: [00:21:22] Our executive producer Erica Janik. Maureen McMurry is a local gal does good.

Archival: [00:21:26] Music in this episode by Loopez, Blue Dot Sessions, Quincas Moreira and Drew Banga.

Nick Capodice: [00:21:32] In addition to subscribing to our podcast you can give us a visit at Civics 1 0 1 podcast dot org or follow us on Twitter at Civics 101 pod Civics 101 is production of NHPR new Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Special Announcement and IRL2

First off, our next season of Civics 101 will launch this October with a special miniseries on the midterm elections. Each episode will better educate you on what you're voting for in November, and will include a breakdown of the wide-ranging effects of a midterm in US history.

Second, this is a rebroadcast of IRL2, our episode on the history of the American flag and the Pledge of Allegiance, focusing on times these icons were used in protest.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Hello Civics listeners. This is Nick Capodice

And Hannah McCarthy

And the more observant of you out there may have realized that we’re taking a pause on producing new episodes

It’s not sloth, it’s industry

We’re developing our next season of Civics 101, which will commence with a five-part series on the midterm elections, featuring the voices of politicians, professors, pages, and civics teachers from across the country.

We’re focusing on things like campaigning and voting, but also the powers of senators, representatives, and all the other people you may see on your midterm ballot.

And each episode will also feature a famous midterm from American history. So don’t miss it. The series will debut on October 2nd, well before you cast your vote. And as for today, here’s an episode we did on the flag and the pledge of allegiance. Enjoy!

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


Civics 101

IRL2: The Flag and the Pledge


Nick Capodice: [00:00:32] Aw it's that time again. Time for another Civics 101 I R L where we dive into the historic moments related to our regular episode topics. I'm Nick Capodice. And with me as always is Hannah McCarthy.


Hannah McCarthy: [00:00:48] Hey there folks.


Nick Capodice: [00:00:49] Virginia will be back for the next one. This is a supplement to our Episode 79 which is about the U.S. flag code. There was so much to talk about that we had to cut the flag in half.


Hannah McCarthy: [00:00:58] For my half. I'm and do history of the flag history of the Pledge of Allegiance.


Nick Capodice: [00:01:02] Yes. And I'm going to do Supreme Court cases that involve the flag and the pledge.


Hannah McCarthy: [00:01:06] Do you want to start with history?


Nick Capodice: [00:01:06] Yes please.


Hannah McCarthy: [00:01:20] So Nick do you know where the American flag comes from, who designed the American flag?


Nick Capodice: [00:01:27] I was always taught Betsy Ross sewed and designed the first American flag.


[00:01:33] That is the prevailing history. But as it turns out there is no written documentation that this is the case. The story actually comes from Betsy Ross's grandson. He goes to the Historical Society of Philadelphia and he says my grandmother designed the American flag what and all that he has is testimony from Ross family members. You know the thing is that Betsy Ross was a flag maker in Philadelphia through the late 1770s. So she was probably sewing American flags. But this idea that she came up with the design the 13 stars in a circle, there's no real evidence aside from the Rosses insisting that this was the case


Nick Capodice: [00:02:19] And they don't have that, they had no evidence to like back it up?


Hannah McCarthy: [00:02:22] No written documentation you know,.


Nick Capodice: [00:02:23] Is that true?


Hannah McCarthy: [00:02:24] That she didn't design the flag?


Nick Capodice: [00:02:26] Yeah.


Hannah McCarthy: [00:02:27] I am not going to say for sure because it's possible right? But all that you've got are affidavits from her family members. So if Betsy Ross didn't design the American flag


Nick Capodice: [00:02:38] Who did?


Hannah McCarthy: [00:02:39] That's a good question. Some historians not all believe that it was a man named Francis Hopkinson. And there's good reason to believe him but that idea that he designed the American flag is based entirely on the fact that he claimed to have designed the American flag. So once again you're running up against this. There's no written proof that this person designed it.


Hannah McCarthy: [00:02:59] The reason it's more likely to have been Francis Hopkinson is that he definitely helped to create the design of the seal for the University of Pennsylvania the seal of the state of New Jersey and the Great Seal of the United States


Nick Capodice: [00:03:14] So he's a seal man.


Hannah McCarthy: [00:03:15] He's a seal man


Nick Capodice: [00:03:16] Seal guy. He designed the U.S. SEAL and that's enough of kind of like will this guy's got some background in design and probably did this too.


Hannah McCarthy: [00:03:24] In patriotic design.


Hannah McCarthy: [00:03:25] He was a known patriot. So it seems a little more likely.


Nick Capodice: [00:03:29] And real quick you know when this was? Is this around like the...


Hannah McCarthy: [00:03:32] Oh yeah of course. This was in the late 1770ss so 1776 1777. We've got this flag that the Continental Congress is flying


Archival audio: [00:03:49] The alternate stripes indicated a dissention from the king's rule. But the Union Jack indicated a loyalty to the mother country.


Hannah McCarthy: [00:03:50] And now this flag very closely resembles our flag except for the fact that the canton which is that in inner upper left hand corner square


Nick Capodice: [00:04:00] That's called the Canton! The blue square.


Hannah McCarthy: [00:04:02] That's right.


Nick Capodice: [00:04:03] I learned something new today.


Hannah McCarthy: [00:04:04] We already had the 13 stripes and that was actually a very popular design that would be displayed on coats of arms across Europe so that there was precedent for that. The Canton that we had was actually just the British Union Jack. So we had that plus our 13 stripes representing our 13 colonies.


Nick Capodice: [00:04:24] So the many stripes was a trope


Hannah McCarthy: [00:04:27] Exactly.


Nick Capodice: [00:04:27] Yet the number 13 was because of our 13 colonies.


Hannah McCarthy: [00:04:30] It was because of our 13 colonies. We were not strictly flying that British flag we were flying or 13 British colonies flag and we were working toward independence from the British. Now although we cannot say definitively who designed our new flag that new flag on June 14th 1777 was the result of the Continental Congress passing an act that established this official flag of the new nation. So the phrasing of that resolution it is resolved that the flag of the United States be 13 stripes alternate red and white and the union be thirteen stars white in a blue field representing a new constellation. OK I like the constellation. Very nice. So initially we had this flag which had our 13 five pointed stars in a circle in the blue Canton


Hannah McCarthy: [00:05:21] Gotcha.


Hannah McCarthy: [00:05:22] And then as states joined the union we would add both stars and stripes.


Nick Capodice: [00:05:30] What?


Hannah McCarthy: [00:05:30] That's right.


Archival audio: [00:05:30] On January 13th 1794 Congress enacted the law. Giving with us the flag with 15 stars and 15 stripes.


Nick Capodice: [00:05:40] When did we stop?


Hannah McCarthy: [00:05:41] So we actually stopped just after Vermont and Kentucky were introduced we only got to 15 I think.


Hannah McCarthy: [00:05:46] And then they say they realized


Hannah McCarthy: [00:05:49] Thank god then they realized that it was going to be visual chaos on the American flag. If you know they knew that the nation was going to continue to grow they might not have known it was going to get to 50.


Hannah McCarthy: [00:05:58] But just imagine that 50 stars next to 50 tiny little stripes. So in 1818 in their great wisdom Congress passes a law stipulating that the original 13 stripes be restored and only new stars be added Of course


Nick Capodice: [00:06:14] So are there like a couple of 15 striped flags out there?


Hannah McCarthy: [00:06:17] There are. You can actually order one. They still make them. So somebody can say you know this is the flag that we had for this period of time in history.


Nick Capodice: [00:06:25] That's really cool.


Hannah McCarthy: [00:06:26] Yeah. So the flag we know today because the flag has changed so many times. It's actually the twenty seventh iteration of the U.S..


Nick Capodice: [00:06:34] OK so they didn't add a star every time we added a state they like a wait for a couple.


Hannah McCarthy: [00:06:38] Correct. OK. Because we were adding at such a rapid rate. So you have only these 27 different versions of the flag.


Archival audio: [00:06:45] Every star state every state star.


Nick Capodice: [00:06:49] Cool. That's the flag.


Hannah McCarthy: [00:06:50] That's the flag.


Nick Capodice: [00:06:51] Now the pledge is tied to the flag right.


Hannah McCarthy: [00:06:53] So the pledge is tied to the flag but it's also really closely tied to patriotism and the union. And I would say the Americanization of people in this country.


Nick Capodice: [00:07:07] Wow. Can I ask you did you say the pledge when you were in school.


Hannah McCarthy: [00:07:10] I said the pledge every single morning I believe through middle school


Nick Capodice: [00:07:16] Stopped for me in middle school too. I said it in elementary school. So what's up with the pledge.


Hannah McCarthy: [00:07:20] Yeah I'm actually going to start us before the Pledge of Allegiance because we had a flag salute before we ever had a pledge of allegiance. So the original flag salute is by Rear Admiral George Balch. He'd been at West Point he served in the civil war and then later on in his career he finds himself working for the New York City Board of Education and he starts noticing that there are suddenly a ton of immigrant children in classrooms across the city and they don't necessarily sound like native born Americans. They might not think like native born Americans. Because he's encountering these foreign born students, he wants to teach American principles and help them to develop this ritual that could foster an American identity. So what he does is he develops this pledge salute combo where children would salute the flag and speak the following. I give my heart and my hand to my country, one country one language, one flag.


Nick Capodice: [00:08:21] Wow, one language too?


Hannah McCarthy: [00:08:23] One language.


Nick Capodice: [00:08:23] So this was a straight up. This is a guy who wanted America to look and sound a certain way.


Hannah McCarthy: [00:08:30] Yes.


Nick Capodice: [00:08:30] What years are we talking about here.


Hannah McCarthy: [00:08:31] So this is in 1887.


Nick Capodice: [00:08:34] OK yes. So it actually is the height. This is like just near the height of both German and Russian Jewish immigration. The Italians are just starting to come in.


Hannah McCarthy: [00:08:45] Exactly.


Nick Capodice: [00:08:45] So this is when the face the sound of America is changing again in a big way


Hannah McCarthy: [00:08:49] In a big way.


Nick Capodice: [00:08:50] And he's like we've got to put a stop to that. We have to change that. It sounds like.


Hannah McCarthy: [00:08:54] I think there was perhaps a fear of the influence of immigrants if not the immigrants themselves; let them in but make sure they become us. I think it was kind of the idea. So not that long after this fact. We are going to come up on the pledge and this is in 1892 which I believe was the same year that Ellis Island was officially opened for business


Nick Capodice: [00:09:17] Certainly was.


Hannah McCarthy: [00:09:17] And you've got millions of people coming in through Ellis Island. It's a very visible immigration from elsewhere into the United States. Not only that but the country is only 30 years into post Civil War recovery. So this idea of national union is still kind of fragile because we almost broke up you know. So there are some who think that patriotism is kind of sinking in the country too many people who are foreign born are moving in are changing the ways that we think and we speak. And we also are totally certain that we can keep this country together if only because we came so close to losing it.


Nick Capodice: [00:09:58] Right.


Hannah McCarthy: [00:09:59] So there's this man named Daniel Sharp Ford he's the owner of a magazine called Youth's Companion and he was particularly concerned with what he saw as this you know sinking morale in this country the sinking patriotism and he wants to boost it. So one of his employees one of the people who writes for him is named Francis Bellamy. He's a minister and an author for Youth's Companion. And so he asks Bellamy to compose a pledge of allegiance to the flag in hopes that it's going to boost patriotism.


Hannah McCarthy: [00:10:34] And here's the original language of the pledge allegiance.


Hannah McCarthy: [00:10:38] I pledge allegiance to my flag and the republic for which it stands


Archival audio: [00:10:46] One nation, with liberty, and justice for all.


Nick Capodice: [00:10:48] Wow. There's a lot that's changed since then.


Hannah McCarthy: [00:10:50] There's quite a bit that's changed.


Nick Capodice: [00:10:52] I think my flag sounds a bit more inclusive. It's like sort of implying that all these new comers these new Americans you know who are coming here are part of us. That's my flag because I'm here


Hannah McCarthy: [00:11:04] Something that we probably take for granted is that there is an American flag an every classroom. A big part of the reason let's just say that they're in so many classrooms in the United States is that at the same time that Youth's Companion publishes this pledge of allegiance and these instructions for this pledge they start selling flags at cost to about 26000 schools across the country. So then the pledge became really popular and that salute became known as The Bellamy salute. I think they simplified it to just this arm straight outward. You know at a slight angle right level with the forehead which looks just like a Nazi salute. During World War II of course we are seeing photographs and film of Nazis with their arms straight out and we decide maybe this isn't what we should be doing. Hand on the .


Nick Capodice: [00:11:58] Hand of the heart.


Hannah McCarthy: [00:11:58] So that's when that transition happens then revisions start to happen to the pledge itself. So in 1923 my flag is changed to the flag of the United States. So that in 1954 we add the words under God.


Nick Capodice: [00:12:13] Fifty four?


Hannah McCarthy: [00:12:14] Nineteen fifty four. So I think a lot of people grow up thinking that this pledge is kind of as old as the country itself.


Nick Capodice: [00:12:20] I thought it had under God from the 1800's.


Hannah McCarthy: [00:12:23] It sounds like something that would have been concocted in the 1800s. You don't really think that in 1954 that they're going to add the words under God.


Nick Capodice: [00:12:33] Yeah. Like just before the 60s?


Hannah McCarthy: [00:12:36] Things were about to blow up in this country. The reason that happened was because we see communism as this huge threat to this country. Communists are considered godless. Eisenhower signs a congressional resolution to pass under God into the Pledge of Allegiance. But it wasn't just Eisenhower. It's also because of a three year campaign by the Knights of Columbus


Nick Capodice: [00:13:04] The Knights of Columbus.


Hannah McCarthy: [00:13:06] That is the initial history of the Pledge of Allegiance. That's how he got up to the language that we use today.


Nick Capodice: [00:13:12] OK. Wow. So Betsy Ross didn't make the flag


Hannah McCarthy: [00:13:15] we don't even really know who designed it, or rather we can't say for sure.


Nick Capodice: [00:13:22] You ready for this?


Hannah McCarthy: [00:13:23] I'm ready.


Nick Capodice: [00:13:24] Are you. Aren't you excited to hear about some court cases.


Hannah McCarthy: [00:13:26] I'm so excited.


Nick Capodice: [00:13:27] After all of this boring here are two Supreme Court cases about saluting the flag and two about burning it. Number one Minersville v Gobitis, 1940.


Nick Capodice: [00:13:39] William and Lillian Gobitis, they're Jehovah's Witnesses. And this is really important for this story.


Hannah McCarthy: [00:13:44] OK


Nick Capodice: [00:13:45] So this is what I didn't know about the Jehovah's Witness faith. Jehovah's Witnesses view God's kingdom as a government.


Hannah McCarthy: [00:13:53] Oh


Nick Capodice: [00:13:54] Yes. And therefore they refrain from pledging allegiance to any other government.


Hannah McCarthy: [00:13:59] Oh!


Nick Capodice: [00:13:59] And like nationalist songs and dances and parties and anything that's like pro a country is anathema to them because in their faith the country of God is the only country to which they should swear allegiance.


Hannah McCarthy: [00:14:11] That's really interesting.


Nick Capodice: [00:14:13] Yeah. And we see Jehovah's Witnesses pop up again and again because of this


Hannah McCarthy: [00:14:17] Because they can't be patriotic.


Nick Capodice: [00:14:19] Right.


Hannah McCarthy: [00:14:20] It must make it hard to live anywhere.


Nick Capodice: [00:14:22] It's only fitting that these two kids the Gobitis family in Pennsylvania. They refused to say the Pledge of Allegiance and they were summarily expelled from school in 1940. Now it goes up to the U.S. Supreme Court. And it is an 8 to 1 vote for Minersville school district.


Hannah McCarthy: [00:14:38] OK


Nick Capodice: [00:14:39] So the kids were not in their constitutional rights to not say the pledge.


Hannah McCarthy: [00:14:44] On what grounds exactly?


Nick Capodice: [00:14:44] Well it was, it was almost unanimous.


Hannah McCarthy: [00:14:48] Yeah.


Nick Capodice: [00:14:49] The justice who wrote the opinion was named Justice Felix Frankfurter. He's a famed Justice who was on the bench a long time. He said that national unity is the basis of national security. So if we're going to succeed as a nation we have to say that some things are respected. And he went on to say that a pledge for the flag is secular it's not religious it's for your nation. So you shouldn't consider it like that you do of God. Harlan Stone said in his dissent of the case that quote "There are other ways to teach loyalty and patriotism which are the sources of national unity then by compelling the people to affirm that which he does not believe." So we have a Supreme Court who almost unanimously says, hey everybody should go and support the flag. .


Hannah McCarthy: [00:15:34] OK.


Nick Capodice: [00:15:35] Everybody should say the Pledge of Allegiance. What happens after me almost immediately after this decision comes out, a mob of 2500 people burned down the Jehovah's Witnesses Kingdom Hall in Kennebunkport Maine. All the Jehovah's Witnesses in an Illinois town are jailed to protect them from citizens who are rioting. Jehovah's Witnesses are lynched, publicly hanged. And one sheriff said quote They are traitors. The Supreme Court said so. Ain't you heard?


Hannah McCarthy: [00:16:07] Wow.


Nick Capodice: [00:16:07] Three Supreme Court Justices, Black Douglas and Murphy, they stated in another opinion that they'd made the wrong decision.


Hannah McCarthy: [00:16:17] Wow.


Nick Capodice: [00:16:17] So in the wake of Minersville v Gobitis, not only is there a huge surge against Jehovah's Witnesses in the U.S. but there is a surge of flag laws in the U.S. saying you have to say the pledge. West Virginia is one of them. They make it compulsory. They say that if you don't say the Pledge of Allegiance in the morning you are insubordinate. And that law is what brings us to our next case, West Virginia v. Barnett 1943. Maria and Gathie Barnett, Jehovah's witnesses refused to say the pledge, goes up to the Supreme Court but something is different. Something is different in the air of America this time. By 1943 Americans had seen a lot of footage and read a lot of stories of Jehovah's Witnesses being persecuted in Nazi Germany and sent to concentration camps for refusing to salute the Nazi flag. So that, the justices who said that they had made a mistake, all comes together to make a new decision which is a 6 to 3 decision to overrule Minersville v Gobitis. So West Virginia Barnett is a case that makes it within your constitutional rights to not say the Pledge of Allegiance.


Nick Capodice: [00:17:21] Justice Jackson wrote the decision and the famous quote from this one as he said "if there is any fixed star in our constitutional constellation it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism religion, or other matters of opinion or force citizens to confess by word or act their faith therein.".


Hannah McCarthy: [00:17:42] I love that.


Nick Capodice: [00:17:44] And there's no big ones. For a while and then we go to New York City. In the 1960s.


Archival audio: [00:17:50] This is about the first case in the history of our country, where this statue was even used. When Patrolman Copeland made his arrest he did not know that he had made the first arrest in the history of the state of New York for the public burning of a flag.


Nick Capodice: [00:18:06] We're talking about street v. New York 1969.


Hannah McCarthy: [00:18:09] Street.


Nick Capodice: [00:18:10] Street is the guy's name. Do you know about this case.


Hannah McCarthy: [00:18:13] No.


Nick Capodice: [00:18:13] Oh it's such a cool case. Oh my God. I mean the coolest people get involved in Supreme court cases, the coolest stories. So cast your mind back to 1966. The case is 1969 but this happens in 1966.


Hannah McCarthy: [00:18:26] I happen to be rereading Just Kids so I'm there.


Nick Capodice: [00:18:29] Oh you're right there right there. So we're in the 60s and we're in our old friend the Warren Court from Tinker v Des Moines


Hannah McCarthy: [00:18:39] I remember Warren, oh year.


Nick Capodice: [00:18:39] So I wish I had a constitutional scholar to walk me through this and it's radio so we should have someone should say hey did somebody call my name, no but we don't have that but hey we do what we can.


Nick Capodice: [00:18:47] So in 1966 there a civil rights activist named James Meredith. James Meredith is part of a protest, he is walking from Memphis Tennessee to Jackson Mississippi and he's promoting voter registration after the, the Voting Rights Act of 1965. And he's talking about and he's exposing racism across the south and he's trying to encourage African-Americans to vote , you know? And he's shot.


Hannah McCarthy: [00:19:15] Is he killed?


Nick Capodice: [00:19:16] He is not killed. It's comes over the radio across the country, James Meredith has been shot by an unidentified sniper. That comes across the radio and a guy's apartment in Brooklyn. And there's a guy named Sidney street Sidney street is a decorated Bronze Star veteran. He himself is African-American.


Archival audio: [00:19:34] He went out on an American flag with got him to his apartment two way street corner. Put a piece of paper on the street holding the flag in one hand, folded put a match to it and set it on fire.


Nick Capodice: [00:19:50] Then it starts to burn so much he can't hold it in his hand he puts it on the piece of paper he never lets the flag touch the ground.


Hannah McCarthy: [00:19:57] That is.. Anyway go on. So interesting.


Nick Capodice: [00:20:01] and this is really important. A police officer later later testified that he heard Sidney Street say if they did that to Meredith we don't need an American flag. The reason this matters is that New York State had a law had a statute at the time that you couldn't desecrate the flag by words or deed. You couldn't say bad stuff about the flag and you couldn't desecrate it physically. Sidney street is charged with malicious mischief for unlawfully burning the American flag and for saying bad words about the American flag. So this is an absolute squeaker. So what's the decision. It's a 5 4 decision. It's kind of confusing to me.


Hannah McCarthy: [00:20:45] OK.


Nick Capodice: [00:20:45] It's called, it's reverse and remand. It's kind of like


Hannah McCarthy: [00:20:50] What does remand mean.


Nick Capodice: [00:20:51] Remand means you send it back to the lower case for a retrial. Like it's the state's business or it's your business that other courts business.


Hannah McCarthy: [00:21:00] Because it was a state's law.


Nick Capodice: [00:21:01] It was but it's kind of like you guys take care of this. So they the court decides by a 5 4 vote that the law about the words about speaking bad about the flag that is unconstitutional. But when it comes to burning the flag let's just we don't. They totally kick the can on this one. It's a famous can kicking. The court does not decide whether or not it was constitutional for him to burn the flag.


Hannah McCarthy: [00:21:29] Wow.


Nick Capodice: [00:21:29] Yeah. It's kicked down 1970s, kicked down in the 1980s, and then we get to 1984 the Republican National Convention in Dallas Texas.


Archival audio: [00:21:43] It is my great privilege. To proclaim the thirty third Republican National Convention in Session and call it to order.


Archival audio: [00:21:58] We represent people who are patriotic. Who believe in our American system and love our country.


Nick Capodice: [00:22:03] Number four. Texas v. Johnson. Reagan and George H.W. Bush have been nominated for the second term and everybody at the RNC is banging gavels and getting all excited outside this convention on the steps of City Hall.


Nick Capodice: [00:22:16] There's a guy named Gregory Lee Johnson who goes by the name Joey. Gregory Johnson. And he takes an American flag and he burns it.


Hannah McCarthy: [00:22:24] I've seen


Nick Capodice: [00:22:24] And he spits on it. Yeah. Texas has a law. Texas legislature may prohibit overt physical acts that it deems offensive slash harmful to society. Texas loses the case and it keeps getting,.and Texas keeps appealing it and it goes up to the top, so Texas's name being first they lost the previous case. What is most interesting to me about this case I kinda, I found like a personal hero when I was researching this case and it's the guy who's the advocate for Johnson the lawyer named William Kunstler


Archival audio: [00:22:57] By the way talking about flags in front of the Supreme Court when I came by today. The flags were up in the rain. And under 36 US Code the leading provision there is flags shall not be displayed in inclement weather.


Archival audio: [00:23:12] Are you gonna get back to.


Archival audio: [00:23:12] Section one applies to all weather flags.


Archival audio: [00:23:17] That's an all weather flag. That could be physical mistreatment under the Texas statute.


Archival audio: [00:23:22] Mister Kunstler. Are you going to get back to the case?


Archival audio: [00:23:24] I'm going back to the case, seems we had this three weeks ago.


Nick Capodice: [00:23:28] He is very funny. And as you hear when he's arguing the case everybody's laughing, Thurgood Marshall is like can we get back to the case. He defended the Chicago Seven. He defended the Black Panthers the Weather Underground.


Archival audio: [00:23:43] Real pariahs people that could be totally hated by most of the population of this country. Well what makes Kunstler pariah bound? Well I have found that it is the pariahs when the law changes


Nick Capodice: [00:23:56] And what bigger pariah than a flag burner? In his argument he cites Street. He cites Barnett and the court makes its decision and it's another 5 4 vote. Another squeaker and the court holds that Johnson's burning of the flag is protected speech under the First Amendment. Justice William Brennan, famed advocate of the First Amendment. He's the one who writes the decision and he has the sort of money quote which is. If there is a bedrock principle underlying the First Amendment it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. And then Kunstler on the steps after the decision is read says this.


Archival audio: [00:24:41] And it tests the First Amendment whether you can see a thing like that which for war veterans who complain about, which touches a lot of people who do have certain reverence for the flag. To have that burned, desecrated in their eyes and yet protected by the First Amendment. I think it's a hard nut to swallow but it's a kind of nut that the founding fathers wanted us to swallow because they said that it's the hard words not the soft words that need protection.


Nick Capodice: [00:25:08] That decision invalidates laws in 48 states right off the bat.


Hannah McCarthy: [00:25:14] Wow.


Nick Capodice: [00:25:14] Suddenly overnight, whoosh.


Hannah McCarthy: [00:25:17] Yeah


Nick Capodice: [00:25:18] But there's one last one last bit to this.


Hannah McCarthy: [00:25:22] OK.


Nick Capodice: [00:25:23] Hannah which is Congress since Texas v. Johnson and starting in the mid 90s really 1990s has on many occasions tried to pass a new amendment to our Constitution. So we've talked before about how an amendment gets ratified into the Constitution and has to pass a two thirds majority in the house and in the Senate and then two thirds of the states have to agree as well. The actual amendment has been written. It's just waiting to be ratified. The amendment says the Congress shall have power to prohibit the physical desecration of the flag of the United States. That's it.


Hannah McCarthy: [00:25:58] Even though it is opposed to a Supreme Court decision


Nick Capodice: [00:26:02] Yeah, Because of its amendment would change that because it be in our constitution


Hannah McCarthy: [00:26:07] That's very interesting.


Nick Capodice: [00:26:08] So from the years 1995 to 2005 this amendment passed in the House six times. And each time it lost in the Senate by a handful or two of votes. In 2006 it got to the Senate and it lost by one vote. But even though it lost by just one vote Senate all 50 states have pledged that they are for this flag desecration amendment. So if it gets to the Senate it's pretty much a guarantee.


Hannah McCarthy: [00:26:40] Is it currently for..


Nick Capodice: [00:26:43] Yeah, so the amendment right now. It was proposed in June of 2017 and it's kicked to the Senate Judiciary Committee. So it's in committee as they say, it's in committee.


Hannah McCarthy: [00:26:54] All right.


Nick Capodice: [00:26:54] Who knows where it's going to go from there.


Hannah McCarthy: [00:26:56] Seems pretty likely to happen maybe next this year. Right?


Nick Capodice: [00:27:00] Who knows.


Nick Capodice: [00:27:02] One for the ages I guess.


Nick Capodice: [00:27:05] Thank you Hannah.


Hannah McCarthy: [00:27:08] Thank you Nick.





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IRL1: Free Speech in Schools [Rebroadcast]

A rebroadcast to get ready for the school year: we're digging into four incredibly important Supreme Court cases - four cases that have shaped how we interpret the meaning of free speech in public schools.  Is political protest allowed in class?  Is lewd speech covered by the First Amendment? Can school administrators determine what students can and can't say in the school newspaper? Listen in, and find out how students and schools have gone head to head over how First Amendment rights apply in a public school setting.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101

1st Amendment in Schools Transcript


Nick Capodice: [00:00:19] This is Civics 101, I'm Nick Capodice. If you've listened to a few episodes of our show you know that we don't have a lot of time. We try to keep these things down to about 15 minutes so they're digestible. And we can't really get into the moments of historical significance that are relevant to our episode topics like landmark Supreme Court cases actual presidential elections all that fun stuff. And that's what we're going to do today. We're calling it Civics 101 IRL. It's the real historical moments relative to our episode topics. So hope you have fun. Stick around. Last week I got this phone call from Dave Alcox


David Alcox: [00:00:54] Hey Nick this is Dave Alcox of Milford high school


Nick Capodice: [00:00:57] Mr. Alcox is a superstar social studies teacher here in New Hampshire, and a professional deejay.


David Alcox: [00:01:03] I've got a wicked great news for you. We're going to have John and Mary Beth Tinker from Tinker vs Des Moines, and Cathy Kuhlmeier from Hazelwood versus Kuhlmeier come visit us at Milford High


Nick Capodice: [00:01:15] And I didn't want to sound like a complete fool when he called me. But the truth is I didn't know who these people were, and when I found out I had to tell someone. So I grabbed producer Hannah McCarthy.


Hannah McCarthy: Yeah!


Nick Capodice: Come in


Hannah McCarthy: Ok

Nick Capodice: Do you have like five minutes?


Hannah McCarthy: I do yeah I have five minutes


Nick Capodice: Yeah, put on those headphones


Nick Capodice: Do you know who John Tinker, Mary Beth Tinker, and Cathy Kuhlmeier are?


Hannah McCarthy: I have no idea


Nick Capodice: Ok, these, it’s ok because I didn’t either, but I can promise you I will go to my grave knowing the names Tinker, Fraser, Kuhlmeier and Frederick


Hannah McCarthy: You gotta tell me who they are then


Nick Capodice: These are four people involved in Supreme Court cases that drastically, drastically change First Amendment rights in schools


Hannah McCarthy: I can’t believe I haven’t heard of this


Nick Capodice: I’m pretty shocked I haven’t heard about it either.




Nick Capodice: [00:02:08] Number one, Tinker versus Des Moines.


Archival Audio: [00:02:12] John F Tinker and Mary Beth Tinker, minors, etc. et al vs Des Moines independent community school district et al.


Nick Capodice: [00:02:21] The Tinkers name being first means that they are the petitioners. And Des Moines being second means they are the respondent.


Hannah McCarthy: [00:02:29] OK so that means that Des Moines is happy.


Nick Capodice: [00:02:32] Yes the original decision they don't want anything else to happen.


Nick Capodice: [00:02:35] Right. The Tinkers lost the previous case and Des Moines won the previous case. They're cool to stand. Mary Beth tinker, great story, Mary Beth Tinker was 13. Her brother John was about 16 I believe when this happened. Their father was a Methodist minister and he was very involved in the civil rights movement. And John and Mary Beth joined some students who were protesting the Vietnam War the Vietnam War and the United States. It's the first time that war is coming to American living rooms.


Hannah McCarthy: [00:03:05] Right through television.


Nick Capodice: [00:03:06] Yes absolutely. The horrors of war. And they were going to protest by joining some students who were wearing black armbands.


Archival Audio: [00:03:13] Specifically the views were that they mourn the dead on both sides, civilian and military in that war and they supported the proposal which would have been made by United States Senator Robert Kennedy. The truce which had been proposed for that war over the Christmas period made it open ended or an indefinite truce.


Nick Capodice: [00:03:33] Totally coincidentally two days before this big protest of wearing black armbands the principal of their school met with a bunch of other principals in Des Moines and passed a rule saying arm bands are forbidden in our school district.


Hannah McCarthy: [00:03:48] So were other kids wearing armbands?


Nick Capodice: [00:03:51] Yeah this was going to, when they heard that the principal heard that this was going to be a thing that happened. They're like look what are we going to do. Kids are going to be wearing armbands in school and it's going to be a disruption.


Hannah McCarthy: [00:04:00] OK so he tried to preempt the whole thing.


Nick Capodice: [00:04:02] Tried to preempt the whole thing but they wore them to school anyways and they were suspended. And immediately after they were suspended they started getting the threats. So yes. People called them a bunch of commies. Someone said they were going to firebomb their house. And one letter one letter that actually Marybeth still has to this day is like you're welcome to wear your armbands just do it on Saturday. You shouldn't be doing it in school. So they got in contact with the ACLU. They got a case together and through appeals it ends up in the Supreme Court and the vote is seven to two in favor of the Tinkers.


Hannah McCarthy: [00:04:40] That is a landslide. Go John and Mary Beth.


Nick Capodice: [00:04:44] John and Mary Beth. The seven justices wrote in the decision that yes their first amendment rights have been violated and they had a right to protest in school. The justice who wrote the decision is Abe Fortas. So when you have a Supreme Court case there's a decision where the majority writes the majority of it and then you can dissent. If you're someone who disagreed you can write in the dissent and Abe Fortas wrote the decision. He said "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Those words are used over and over in other Supreme Court cases further down the line. It's a magnificent decision and it creates this massive blanket precedent called the Tinker Standard which is where you ask was this speech disruptive. And if it's not disruptive then it's protected in schools. John and Mary Beth Tinker case 1969. And to this day John and Mary Beth do what's called the Tinker tour. They travel the country to tell students about their First Amendment rights.


Hannah McCarthy: [00:05:50] That is very cool.


Nick Capodice: [00:05:51] Mary Beth once said, one of my favorite quotes I found of hers, it's a good way of life to speak up. To use your rights. And she says that students are particularly in a position to speak up because students have virility, students are curious, students are the next generation who are is who is going to challenge the way the previous generation had everything all set up. So later on as the years go by the Supreme Court has to decide, are there things besides disruption quote unquote that makes something protected or not in school. So we're going to shift forward in time to 1986 were there.


Hannah McCarthy: [00:06:27] You should play some music.


Nick Capodice: [00:06:28] Oh I'm going to totally play 1986 music for this. It's going to be Cruel Summer.


Hannah McCarthy: [00:06:32] Yeah.


Archival Audio: [00:06:36] It does not say one should not swear in Latin class, the rule says that obscene or profane language is disruptive.


Nick Capodice: [00:06:46] 1986 Bethel v Fraizer.


Archival Audio: [00:06:50] The Facts of this case are that on April 26 1983 Matt Fraser, a 17 year old high school senior, gave a speech to the Associated Student Body.


Nick Capodice: [00:07:00] Gave speech nominating his friend Jeff for student body vice president. It was not full of cuss words.


Archival Audio: [00:07:06] He gave a crude and vulgar speech.


Nick Capodice: [00:07:08] It was very lewd and it was it was short but it was just goofy and it was all lewd and I think I'm not going, I'm not going to say it. So if you want to read it you can just go listen to it.


Hannah McCarthy: [00:07:21] We can't stop you.


Nick Capodice: [00:07:22] We can't stop you from googling it but it to be to be honest Hannah it's like no worse than a lousy Saturday Night Live monologue.


Hannah McCarthy: [00:07:29] Okay.


Nick Capodice: [00:07:30] Yeah except it's way too short. So it's yeah it's not long enough to be about SNL skit but it's just it's just full of sexual innuendo that's all it is. So then he was sent home for that. He went to court. He went to the 9th Circuit 9th Circuit Court of Appeals which ruled in his favor saying that double entendres were protected speech in schools and then the Bethel district brought it up and got up to the highest court in the land. The Supreme Court. Bethel comes first. Bethel v. Fraser because the Bethel school district is the petitioner in the case.


Hannah McCarthy: [00:08:05] I'm a little surprised. In the 80s. That this, that a school would even bother to say no it's our right to send you home when you exhibit lewd behavior.


Nick Capodice: [00:08:19] Because it's about 1960s when Tinker happened, this is a time the height of protest, it's the 60s you know America is learning how to protest in a new way. By the 1980s this is kind of been accepted. You know kids have freedom of speech in schools. Kids are expressing themselves but can it be lewd. It was another 7 - 2 vote. And the answer is no. You cannot say lewd speech in school and it is not protected in school.


Archival Audio: [00:08:46] The Ninth Circuit we believe has misconstrued the extent of the rights a student has under the First Amendment in a public school setting.


Hannah McCarthy: [00:08:55] I was wondering because I know in middle school at least while I was still in school in Massachusetts in a public school system if a kid wore a T-shirt with a lewd slogan or image on it they had to turn it inside out or go home.


Nick Capodice: [00:09:09] Yep same happened to my school particularly in the 1980s something called the coed naked T-shirts which were really hot in 1989 1990. And because they were lewd the school could tell you to turn them inside out or if they had swear words. So they didn't have to just say swear words. But even if they were lewd it couldn't happen in school. One of the quotes from the decision was "the first amendment does not protect speech in school that is vulgar or inconsistent with the fundamental values of public school education." And it kind of makes sense to me even though I'm you know I'm not a crotchety old man but you know you're you can't just go around saying lewd stuff in school.


Hannah McCarthy: [00:09:49] Right. Yeah yeah yeah. The Queen Mab speech is very filthy.


Nick Capodice: [00:09:53] So in the case the dissent and as I've said before the dissent is always kind of my favorite part of Supreme Court cases because it's like the minority coming out being like I still stand for bippity bop. Justice Stevens John Paul Stevens wrote the dissent and he said he just quoted he said "Frankly my dear I don't give a damn. When I was a high school student the use of those words in a public forum shocked the nation. And today Clark Gable's four letter expletive is less offensive than it was then." So he says that what is considered dirty or unprotected as it were in school can change over the years. Yes so let's let it be so let it be kind of like let it be kind of alive.


Hannah McCarthy: [00:10:39] For those of you listening who don't know what that's referencing that's Rhett Butler.


Nick Capodice: [00:10:43] Oh yeah.


Hannah McCarthy: [00:10:43] From uh, um, God,


Nick Capodice: [00:10:45] Gone with the Wind.


Hannah McCarthy: [00:10:47] Yeah.


Nick Capodice: [00:10:48] Two more and they're going to be fast. So that was in 1986 we're going to go forward in time to another case and this is Hazelwood v Kuhlmeier. now so the Tinker case was cited in the Fraser case and tinker and Fraser are cited and Hazel would be Kuhlmeier. And that's what I love is like Supreme Court decisions are living. They build a top each other. Hazelwood v Kuhlmeier decided in 1988. Kathy Kuhlmeier, she worked at a school newspaper called the Spectrum.


Hannah McCarthy: [00:11:20] Alright.


Nick Capodice: [00:11:20] What a fun name this was! What a ROYGBIV name! The Spectrum. And what they did when they wrote the Spectrum newspaper is they gave the proofs of what the paper is gonna be to the principal. He looked it over and said great job kids and printed it. Principal Reynolds got the proofs. It was a May issue. And there were two stories that the principal didn't really care for. One was about teen pregnancy and the other was about divorce. So what he did was he didn't tell anybody he just removed those articles and published the newspaper. Cathy Kuhlmeier and company got their paper the Spectrum opened it up and saw these two big articles were missing and they said what what's up with that. And the principal said that's you know and he gave his reasons for it goes up to the U.S. Supreme Court.


Archival Audio: [00:12:11] Mr. Chief Justice and may it please the court. This case comes before the court to resolve the issue of whether a school sponsored high school newspaper produced and published by a journalism class is a part of the school adopted curriculum under a teacher's supervision and subject to a principal's review. It is a public forum for the purpose of the First Amendment.


Nick Capodice: [00:12:33] Can schools decide what you can and can't put in a school newspaper? So Hazelwood School District v. Kathy Kuhlmeyer. Kuhlmeier got the help of the American Civil Liberties Union. She sued. She won. Then the Hazelwood district appealed it to and went up to the Supreme Court. This vote was 5 3. It's closer than the others and the victor the Hazelwood school district. Schools do have the right to alter to say what you can and can't put in a school newspaper and this was Justice White who delivered the majority decision and he said "the question we addressed and Tinker is different from the question whether the First Amendment requires a school to promote particular student's speech. The former question addresses educators ability to silence a student's personal expression. That happens to occur on school grounds but the latter question concerns educators' authority over school sponsored publications." So this case goes on to say if it's in a newspaper if it's in a school play if it's in a thing the school does, the school has the right to decide what can and can't be done. So you could do a rude play and the school could say we're not going to put that play up and your first amendment rights are not violated. What do you think of that one?


Hannah McCarthy: [00:14:00] I remember being very upset when my school...well in retrospect I get it. We were going to do the King and I and I prepared my audition song and everything from the King and I and and they decided no it's racist we're not doing it. It is racist. They shouldn't have been doing it. But at the moment I just thought like bunch of soft-handed ninnies, like is not is not a good reaction but I don't understand it. I understand that there is an implicit like as though the school is agreeing with whatever is being put in this material because the school's name is on it.


Nick Capodice: [00:14:33] Yeah it's an interesting case and I think because it extends to all sorts of things musical performances, plays I think of all of the possibilities this decision could change and it still stands. I mean Hazelwood v Kuhlmeier stands.


Hannah McCarthy: [00:14:46] Yeah. Especially, well not especially. There's always there's always some tumult in the country. But right now I think you've got a lot of young people who feel very passionately about certain political and racial tensions. And if they want to write a piece about it and you know perhaps cite use of a racial slur or something and they want to print that and talk about that word for example and why that word is wrong and they're going to print it because it's important that you read it as it is something like this you know and the school says we're not publishing that because that's a racial slur.


Hannah McCarthy: [00:15:24] Or maybe not even quite that we're just not even going to really give you a reason beyond use of racial slur. And we're just not printing your piece. I think it couldn't leave room for let's say a hyper conservative principle to just push back on anything that offended his or her ideals.


Nick Capodice: [00:15:41] Yeah. Well I think you might be in the same bailiwick as, this is one of my favorite dissents ever written, Justice William Brennan, "the young men and women of Hazelwood east high expected a civics lesson, but not the one the court teaches them today such unthinking contempt for individual rights is intolerable from any state official. It's particularly insidious from a school principal to whom the public can trust the task of inoculating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees." You, listener. Go read the whole case. It's a fascinating dissent. It's a lot of fun full of passion.


Nick Capodice: [00:16:23] One extra point that I want to make that Cathy Kuhlmeier made about defending her article staying in the newspaper was that there was so much teen pregnancy at her school that they had their own daycare.


Hannah McCarthy: [00:16:34] Wow. I have never heard of that.


Nick Capodice: [00:16:36] Yes. You're not allowed to write about teen pregnancy but enough students are having sex and having underage children that you have a daycare at your high school.


Hannah McCarthy: [00:16:45] That takes it to a completely different level.


Nick Capodice: [00:16:48] And now we're up to our last one.


Hannah McCarthy: [00:16:49] All right.


Nick Capodice: [00:16:50] And it's never the last one because gosh there's going to be is probably one being argued right now and it's it's 2007 Morse v.. Frederick.


Nick Capodice: [00:17:00] We're going to go all the way up. Juneau what I'm talking about we're going to Juneau Alaska.


Archival Audio: [00:17:04] ...everyone has been waiting for. And here are the first two torchbearers to enter the stadium Dorothy Hamill.


Nick Capodice: [00:17:11] This is during the torch relay for the 2002 Winter Olympics in Salt Lake City Utah. It's so fun. A schoolhouse Supreme Court case that involves the Olympics and our neighbor to the north.


Archival Audio: [00:17:24] Respondent Joseph Frederick Sr. was late to school that day when he arrived. He joined his friends across the street from the school to watch the event as the torchbearers and camera crews passed by. Frederick and his friends unfurled a 14 foot banner bearing the phrase quote "bong hits for Jesus" endquote.


Nick Capodice: [00:17:44] Bong Hits for Jesus. And the four was the number four and it was all capital letters except for the 'i" in hits. BONG HiTS 4 JESUS. So Frederick hung up the bong hits banner and principal Morse, Deborah Morse she took the banner down and Frederick was suspended. How would you rule on this one?


Hannah McCarthy: [00:18:12] It may fall under the lewd category because it will not lewd but generally inappropriate because it's saying drugs.


Nick Capodice: [00:18:23] You have these nine old Supreme Court justices men and women talking about bong hits for Jesus. And one of them kept being like, "it was a cryptic message. Such cryptic. What did he mean in Bong Hits for Jesus?"


Archival Audio: [00:18:38] I mean that's what I actually seriously don't understand suppose the school has the following rule. By the way on our field trips you can carry around 15 foot banners they can say anything except they can't talk about drugs and they can't talk about sex and they can't talk about. I don't know. Or I'd say three things. Would that be constitutional. Well I mean I think I think a school could certainly prohibit the display of banners on a school trip or in a school or some...suppose that this particular person had whispered to his next door neighbor bong hits for Jesus. Suppose that's what had happened.


Nick Capodice: [00:19:16] How are they going to vote?


Hannah McCarthy: [00:19:20] I feel a little nervous.


Nick Capodice: [00:19:20] Is the boy and the banner protected, or is the principal in her in her rights thinking of what you know about Hazelwood v Kuhlmeier, thinking of what you know of the Tinker standard and thinking of what you know about Fraser?


Hannah McCarthy: [00:19:33] I think given what I've learned so far from this lesson. Yeah. The principal is protected.


Nick Capodice: [00:19:39] Really.


Hannah McCarthy: [00:19:41] Yeah. Because we've seen two cases where if there is objectionable material the school is in the right to say no.


Nick Capodice: [00:19:50] The court votes five to four, close one, in favor of principal Morse. You got it on the head. And who wrote the decision was the newest chief justice. Justice Roberts.


Hannah McCarthy: [00:20:02] OK.


Nick Capodice: [00:20:02] It was an early decision of the new of the Roberts, uh, of the Roberts court. He said in his decision he said "Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it's going to disrupt the work of the school. Fraser demonstrates that the constitutional rights of students in public school are not automatically coexisting with the rights of adults in other settings like Fraser. If he had said those rude words outside a school th at would've been fine. But he can't say them in school and then Kuhlmeier acknowledged that schools may regulate some speech even though the government couldn't censor it outside of the school. And finally the concern here is not that Frederick speech was offensive but that it is reasonably viewed as promoting illegal drug use.


Hannah McCarthy: [00:20:54] So my biggest issue with all of this is that all of these Supreme Court judges are saying you know you've got adult rights and then you've got what happens to kids in the school in the public school system.


Hannah McCarthy: [00:21:08] And so it's it's basically saying that they aren't, children do not have the same rights as adults. In this certain.


Nick Capodice: [00:21:16] in this public school setting.


Hannah McCarthy: [00:21:18] Right. So why is it that the public school is this hallowed ground where students are stripped of something.


Nick Capodice: [00:21:25] Well do you think that students should have the right to say whatever they want whenever they want in school?


Hannah McCarthy: [00:21:32] No.


Nick Capodice: [00:21:33] Well let's talk about disruption first of all OK. Can somebody stand up and start screaming in class and disrupt your lessons.


Hannah McCarthy: [00:21:39] People do it.


Nick Capodice: [00:21:40] They do it but should they be allowed to do it?


Hannah McCarthy: [00:21:42] Well they're punished right.


Nick Capodice: [00:21:43] So should they not be punished.


Hannah McCarthy: [00:21:45] No I think they should be punished. I guess the idea is that the learning environment we're trying to teach our youth how to be responsible how to earn those rights as adults. I can yeah I can see that. I can understand that. I was also always a good kid. So it's easy for me to just imagine not to say that these are bad kids who are dissenting. Yeah but I only ever saw that it's entertaining and I never came up against sitting in the principal's office for having started an expletive.


Nick Capodice: [00:22:18] I mean I don't think it's, I'm a dyed in the wool champion of freedom of speech. I always have been. You know but all these cases like both sides make sense to me. You know something in them makes sense to me. So I can understand the court's difficulty in making these decisions. And in the dissent for Morse v Frederick it's Justice John Paul Stevens again, and his dissent by the end of it gets around to the point of basically this whole thing we've been talking about. He starts with this he says "although this case began with his silly nonsensical banner it ends up with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs." And then he says "the Vietnam war is remembered today as an unpopular war. But during the Tinker era during its early stages the dominant opinion that Justice Harlan mentioned in his Tinker dissent regarded opposition to that war as unpatriotic if not treason." So look where we are now. Who knows if feelings about drugs cannot change.


Hannah McCarthy: [00:23:26] We know that they can change we're seeing the marijuana laws change across the country.


Nick Capodice: [00:23:30] Absolutely. So I really like that in his dissent for for this case as he references Tinker and he says guys don't forget you know the Vietnam War. You would be just screamed at for opposing the Vietnam War. You'd get in trouble. People would get into fights with you at bars. I really like that he comes back to Tinker and he comes back in a way that's supportive of this. The Constitution is interpreted and those interpretations change over the years. These four students Tinker Fraser Kuhlmeier, Frederick. Four kids changed the ways our First Amendment rights are interpreted in schools.


Nick Capodice: [00:24:07] Well Mr. Alcox, if you're listening I'm ready now. Send me your Tinkers and your Kuhlmeiers. This episode was produced by me Nick Capodice and Hannah McCarthy. Erika Janik is our executive producer, our staff includes Ben Henry, Jacqui Helbert, Jimmy Gutierrez, Justine Paradis, and Taylor Quimby. Music is by the inimitable Peetie Wheetstraw, 1937. And Matt Oakley. The dulcet tones of Supreme Court justices past and present come from, it's a free Law Project from Cornell's Legal Information Institute. Civics 101 is a production of NHPR, New Hampshire Public Radio.






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The Death Penalty

On today's episode we're looking into a practice that sets the U.S. aside from all other Western countries: Capital Punishment. So, is the death penalty a part of the Constitution? How has the Supreme Court ruled on the issue? And ultimately, what can we learn about ourselves from the practice?

Our guest today is Carol Steiker, Harvard Law Professor and author of Courting Death: The Supreme Court and Capital Punishment.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Death Penalty


Nick Capodice: [00:00:00] You're listening to Civics 101.


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


Nick Capodice: [00:00:03] And today we're talking about the death penalty otherwise known as capital punishment.


[00:00:08] Now to more breaking news from Utah where a convicted murderer Ronnie Lee Gardner was shot to death by a firing squad overnight. I want to turn to one of this week's biggest stories in Oklahoma are the execution of Clayton Lockett went horribly wrong.


Hannah McCarthy: [00:00:22] I've heard that we're the only Western nation that still has the death penalty. I want to know if that's true and if it is why.


Nick Capodice: [00:00:33] I want to know how policy towards the death penalty has changed as we've evolved as a nation. This is an issue that doesn't seem just relegated to politics. It could also extend to broader philosophical question can we kill other people because they've done the same. So we wanted to talk to someone who really knew about capital punishment.


Carol Steiker: [00:00:57] My name is Carol Staker. I am the Henry J. Friendly Professor of Law at Harvard Law School where I also am a faculty coach director of the Criminal Justice Policy Program.


Nick Capodice: [00:01:09] So to start do we have a national policy on the death penalty?


Carol Steiker: [00:01:15] No we do not have a national policy on the death penalty because the death penalty is primarily a state by state affair. That's one of the things that makes us different from most other countries is that we give individual states authority over the criminal justice system. So we do have a federal death penalty but the federal government is really a bit player in this field of the 1300 or so executions that have occurred in the last 40 years. Only three of them have been by the federal government.


Hannah McCarthy: [00:01:47] So the Supreme Court has ruled on definitions within the death penalty. But is the death penalty addressed in the Constitution.


Carol Steiker: [00:01:56] Well at the time the Constitution was drafted. Every one of the original 13 colonies had the death penalty and used it and the death penalty is mentioned in the Constitution a number of times. So many people argue that oh well therefore it must be constitutional because it's mentioned in the Constitution. But I think that's a little too simplistic. It's true that at the time the Constitution was drafted there was not any official questioning of the death penalty is permissibility but also mentioned in the Constitution is mutilation. The Fifth Amendment says you can't be held twice in jeopardy of life or limb because there were times in our colonial period where we cut off people's hands or branded them or otherwise mutilated their bodies as punishment. I don't think that many people would argue that because that phrase is in the Constitution that that means that today there's no constitutional problem with say cutting off limbs as punishment. So let's talk about the history. How has our nation's views towards the death penalty changed since the colonial days. Well you know what's really interesting is that when you ask people today why we have the death penalty they come up with a variety of arguments they say well maybe we have to deter other people from committing heinous crimes or maybe we just have it for what are called retributive purposes that is for punishing people in proportion to their dessert. The one thing nobody today would say we have the death penalty for is rehabilitation. I mean you don't rehabilitate someone by killing them. But actually in the colonial era that was the main purpose of capital punishment. That is it was thought at the time that we were overwhelmingly Christian country and people were overwhelmingly believers and they thought that if someone was sentenced to death they could be brought to a state of repentance by the knowledge of their impending execution and therefore their immortal soul could be saved. So the point of sentencing people to death was actually to rehabilitate their souls. I don't think you'd get that argument very often.


Nick Capodice: [00:04:22] Hannah and I are both sitting here with our mouths open. I had no knowledge that the death penalty would have been considered justifiable for religious reasons at that time like you're doing you're doing them a favor. So what's the first legal language about the death penalty the first time maybe the Supreme Court got involved with this death penalty case.


Carol Steiker: [00:04:40] Well that's a really interesting question because it wasn't until the 20th century that the Supreme Court got involved. So let me just tell this story because it's a it's not a well-known one but it's very important to understand how today we understand everyone understands that the Supreme Court is the main player in America's Death Penalty drama. Like I said at the beginning of our country although all the original states had the death penalty although there were people who raised questions about it including some of our founding fathers like Thomas Jefferson and Benjamin Franklin. It was legal and it was practiced pretty much everywhere. But as the 19th century wore on there was a real divergence between the north and the south around the death penalty. That as a number of states in the north and in the Midwest either abolished the death penalty outright. Michigan was the first English speaking jurisdiction in the world to abolish the death penalty in the 1940s and has never had it since then. But in the American South none of the Southern states abolished the death penalty and were very very slow to restrict it in any way because after the Civil War Southern whites were petrified about the possibility of retaliatory violence from the large freed black populations that were in their myths. And they responded with really what was a reign of terror. Again blacks in the south what we now know was a 50 year period of lynching a period in which more than 4000 people were lynched in the United States. Now it wasn't lynching per se that brought the Supreme Court into the death penalty fray. It was the South's response to lynching. So Southern leaders didn't like lynching. It made them look weak. It made them look unable to control the angry mobs who conducted these lynchings in their states. And so they came up with an anti lynching policy that essentially had sheriffs standing on the front steps of courthouses facing down the mob that wanted to lynch a black person charged with a crime against a white person saying don't worry we're going to have a really fast trial and this person this defendant will be hanging by sunset. And that resulted in a kind of quick and dirty. What many people have now call a policy of legal lynching. And this is what brought the Supreme Court into the fray. Now I'm getting to specifically answering your question when did the Supreme Court start to regulate the death penalty under the Constitution. Like I said at the beginning of our country. All the original states had the death penalty although there were people who raised questions about it including some of our founding fathers like Thomas Jefferson and Benjamin Franklin. But the first time that the Supreme Court ever made a rule specific to death penalty cases under theU.S. Constitution was in 1932. In a famous case called Powell versus Alabama which many people today know as the Scottsboro Boys case the Scottsboro Boys case involved nine black boys and they were boys they were ages 12 to 19 who were riding the rails in the South in Alabama and two white women who were also riding the rails accused the nine boys of raping them. We now know that these charges were unfounded. In fact the state of Alabama eventually issued a complete pardon to all of the nine Scottsboro Boys The most recent was in 2013. But at the time they were tried convicted and sentenced to death at least eight of them were the 12 year old was not sentenced to death but eight of the others were sentenced to death after trials that were you know ridiculous incredibly fast and which they were essentially unrepresented by counsel. And the Supreme Court took this case and said For the first time in capital cases you have to have a lawyer. The Constitution requires that.


Hannah McCarthy: [00:09:05] So what have been some other major historic milestones involving the Supreme Court and the death penalty.


Carol Steiker: [00:09:13] Well the biggest was a very famous case in 1972 called Furman versus Georgia where the Supreme Court abolished the death penalty in the United States. Now you might say that's news to me. I thought we still had the death penalty in the United States and we do. And that's because the Supreme Court reversed itself four years later. But I'll get to that. But how did we get to a point in 1972 where the Supreme Court abolished the death penalty in the United States. And the answer is a sort of direct descendant of the Scottsboro Boys case in 1963 almost exactly 30 years after Scottsboro another black man convicted and sentenced to death for raping a white woman in Alabama. As the Supreme Court to take his case. Well there was a liberal justice on the court in the 1960s named Arthur Goldberg who was very much an opponent of capital punishment. He wrote a long what's called dissent from denial of Sir Sharara a dissent from the courts failure to take the case that basically announced to the world his thinking that it was time for the court to consider the constitutionality of capital punishment at least for the crime of rape. And it turns out that that dissent from denial of review caught the attention of the premier civil rights organization in the United States. The NAACP Legal Defense and Education Fund which people everyone calls LDS for short. This was the same organization that had brought and won the Brownvs. Board of Education in 1954 and desegregated America's schools. So it tells you something about the death penalty about its history that in the 1960s in the middle of the civil rights era the nation's preeminent civil rights and racial justice organization would think that the death penalty should become its most important project.


Hannah McCarthy: [00:11:17] So why was the death penalty then reinstated.


Carol Steiker: [00:11:20] That's a very good question. Well it turns out that although LDS won a big victory in 1972 it was a very fragile victory. There are nine justices on the Supreme Court. The decision was 5 to 4 and each of the five justices wrote his own opinion and none of them joined each other so it was kind of hard to know exactly what was wrong with the death penalty in 1972. But the sort of two key swing justices who had rejected such a challenge the year before but changed their minds and accepted it. And Ferman had a kind of narrow view of what was wrong with the death penalty. They said what was wrong was that jurors who did death sentencing in the United States were not given sufficient guidance on how to apply it. They had too wide ranging discretion. The death penalty was widely authorized and there were no standards to help them decide who should get it. So of course states that wanted to keep the death penalty decided to redraft their capital statutes in an attempt to provide the very guidance that these swing justices said were missing. And in 1976 the Supreme Court granted review on five of these new statutes from. And you won't be surprised by this list. Texas Georgia Florida North Carolina and Louisiana. And they upheld a new generation of statutes that provided what the court called guided discretion and the death penalty was back in business.


Hannah McCarthy: [00:12:59] Is the death penalty currently considered an effective deterrent.


Carol Steiker: [00:13:06] I don't think it is. I don't think it is fairly considered to be there. There's been a real cottage industry trying to figure out whether the death penalty deters better than other punishments. You know life without parole or long prison terms. And while other studies that come out on both sides in 2012 a blue ribbon panel of you know the National Institute of Science did a meta analysis of all the studies and concluded that there is no evidence that the death penalty deters. Now they also said there is no evidence that it doesn't deter. In other words the absence of evidence that it deters is not evidence of absence of deterrence. So we're sort of stuck in a who knows situation however just kind of using common sense there about you know 10 to 15000 homicides in the United States every year. Last year we executed around 30 people most people who commit crimes serious homicides have every reason to think that they will not be executed because even the majority of people who have been sentenced to death have not been executed. So just in terms of what you think might contribute to deterrence the way we actually practice the death penalty makes it exceedingly unlikely that it deters.


Nick Capodice: [00:14:38] This may be a strange question but seeing as we have so many people who are on death row in states that have had people on death row for years without executions, what is the justifiable point of keeping the death penalty.


Carol Steiker: [00:14:52] Well it's a really good question. I think in some of the states that keep people on death row for years and years California is case in point. They have you know 700 ish people on death row but between in the last 40 years they've executed only 13 people. I think it's it's kind of a symbolic statement by returning the sentence of death they get to say we take this really seriously but then they don't actually follow through with executions. If you want a really cool analogy to the founding era again occasionally in colonial times people were sentenced to stand at the gallows with the rope around their neck. And often they weren't told that they weren't really going to be hanged. But the actual sentence was you just go to the gallows and they put the rope around your neck. And that was your punishment. And I guess it was a symbolic way of saying what you did was really really bad. And it's enough to make that symbolic statement without actually killing you. And that's what some states I think are doing with the death penalty.


Nick Capodice: [00:16:03] So can you tell me about the arguments moral or legal or civics related against having the death penalty.


Carol Steiker: [00:16:13] Well I think the strongest argument against the death penalty is not so much about what it does to the people who are executed. About whether they deserve it. But what it says about us as a community as a society I often debate the death penalty with people who are very much for it and they always start their debate with an example of some heinous crime. So one person that I debated once started with a description of a crime I'm not even sure that this was a real crime but he described a case in which the defendant had been involved with a woman who broke up with him and he was very angry and he kidnapped her two children from a previous relationship and took those two children and staked them out alive in an alligator patch and let them be eaten by alligators. And he rhetorically said to the audience in our debate how could we think that anything less than death is what this heinous and atrocious murderer deserves. My answer to him is why would we think that a single relatively painless death by lethal injection is what this heinous and atrocious murderer deserves. Why don't we stake him out in an alligator patch and let him get eaten alive by alligators. Always a few people who think well that's a pretty good idea. But most people say no we don't do that. That's uncivilized. And once they admit or acknowledge that there are things that people might be said to deserve because of the heinousness of their own behavior that we don't do because of our civilization humanity. If you want then I think you know you're on my page. If you believe that. And you know I think death should be one of those things that we don't do because that's not what civilized societies do that we have plenty of serious punishments that take seriously wrong doing without taking the awesome step of ending people's lives.






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The Equal Rights Amendment

The Equal Rights Amendment (ERA) is a proposed Constitutional amendment that would explicitly guarantee legal equality under U.S. law, regardless of sex. But almost a century after it was first proposed, the ERA has still not been ratified. What's the hold-up?

Lillian Cunningham is a journalist at The Washington Post. She's also host and creator of the podcasts Presidential and Constitutional.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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


Civics 101




Nick Capodice: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. I'm Nick Capodice.


Hannah McCarthy: [00:00:09] And I'm Hannah McCarthy.


Nick Capodice: [00:00:10] And this is Civics 101. The podcast refresher course on the basics of how our democracy works. The Equal Rights Amendment is a proposed constitutional amendment that would guarantee equality under U.S. law regardless of sex. Huh. Um, shouldn't that already be in there? Is that in there? No? Not really?


Lillian Cunningham: [00:00:32] The Equal Rights Amendment has been the most frequently proposed amendment in all of US history. There have been 11000 proposed amendments over the course of U.S. history and we only have 27 that have actually made it into the Constitution. But out of those 11000 the Equal Rights Amendment or some version of an Equal Rights Amendment is by far the most frequently proposed.


Nick Capodice: [00:01:03] That's today's guest Lillian Cunningham.


Lillian Cunningham: [00:01:05] I'm Lillian Cunningham. I am a journalist at The Washington Post and I'm the host and creator of two podcasts we have, Presidential and Constitutional.


Nick Capodice: [00:01:15] Lillian Cunningham who also goes by Lily is joining us to explain the ERA and why, almost a century after it was first proposed, we're hearing about it again in the news right now.


Archival audio: [00:01:27] You got to hear what I have to say because you know what's going to happen. Women are not given equal rights and protections under federal law.


Nick Capodice: [00:01:49] Alright, let's begin with the most basic question of all. Lily, what is the Equal Rights Amendment?


Lillian Cunningham: [00:01:54] So the Equal Rights Amendment is a proposed amendment or proposed change to the U.S. Constitution. And so the idea is that we would add a line or two to the constitution that would explicitly grant equality under U.S. law to every citizen regardless of their sex. So basically that would mean women would have the same rights and protections as men under the U.S. Constitution. The exact wording I have here in front of me the exact wording is "equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." So you know I think most of us today this sounds pretty straightforward kind of like a no brainer that men and women should have equal protections. But there has actually been a really intense and really long battle that's taking place over about 100 years now in this country over whether we should actually put that language in the Constitution. And that battle is kind of reaching a new climax in the country right now.


Nick Capodice: [00:03:13] So this is a proposed amendment it hasn't been ratified yet. And as Hannah and I know from several different episodes it takes two thirds of all houses three quarters of all states to ratify a constitutional amendment so this is still in the works?


Lillian Cunningham: [00:03:26] So this is where it actually gets very complicated. Right. So what is clear is that it was a proposed amendment and it did at one point pass both houses of Congress with two thirds of the vote. Now what it hasn't done is it hasn't cleared the second hurdle which is that three quarters of states.


Hannah McCarthy: [00:03:51] So Lily you said that this debate has been going on for about a hundred years now. When was this thing proposed and why was it proposed.


Lillian Cunningham: [00:03:59] The backdrop here is in 1920 the country adopts the 19th Amendment which is women's right to vote and kind of on the high from that victory, Alice Paul who's the head of the National Women's Party at the time and a bunch of other female activists, they decide you know OK this is great we have the right to vote now in this country but that's only one piece of what equality looks like. Gender equality looks like. And so really shortly after the adoption of the 19th Amendment Alice Paul and some of her colleagues put forward this idea that we should have an equal rights amendment. Alice Paul is not a congresswoman. She's just a political activist. But she sort of brings this idea to members of Congress and actually at the time in the early 1920s a nephew of Susan B Anthonys was a congressman and he and one of his other colleagues in Congress decide that they are going to actually officially propose this Equal Rights Amendment and they do that in 1923. It doesn't get enough votes though to pass and they try again the next year and the next year and every single year from 1923 onward an Equal Rights Amendment is proposed in Congress. But it just doesn't have enough momentum to get anywhere. Until about 1970 and that's then when the story changes and we suddenly see 50 years after its first proposed we finally see it pass both houses of Congress.


Hannah McCarthy: [00:05:51] So what is going on in the early 1970s why does the story suddenly change after 50 years?


Lillian Cunningham: [00:05:58] So it kind of interestingly it's another moment in the nation's history where we're obviously really debating and trying to reconcile our history of inequality. So Sort of out of racial inequality protesting comes some of these attempts to also fix gender inequality gaps. And so that's why we sort of see this turning point where there's just a lot of political pressure on Congress to pass this equal rights amendment that's been sitting there languishing and it becomes kind of a symbol of the country's commitment to solving these inequality issues.


Nick Capodice: [00:06:44] So it makes it out of committee, miraculously. It gets two thirds of the House two thirds of the Senate. But what happens in the States in 1970?


Lillian Cunningham: [00:06:54] So Congress does something with this amendment that they haven't done with a number of other amendments. And what they do is they pass it but they write that it has a seven year deadline to get those state ratifications. So that means that thirty eight states need to ratify or you know basically sign off and say they want this amendment to be in the Constitution. They need to do that by a deadline of March 22nd, 1979.


Nick Capodice: [00:07:29] So what are the arguments against the ERA. Because with our 2018 glasses on it seems a little strange to have this argument. But were there arguments against it in the 1970s and 80s?


Lillian Cunningham: [00:07:40] There were. There were arguments about it all the way back to the 1920s when it was first proposed you know some people say we don't actually want the same treatment for men and women and it doesn't mean we want worse treatment for women.


Lillian Cunningham: [00:08:00] But you know a lot of the people actually who opposed the Equal Rights Amendment were other women. In the 1920s there were women who had been fighting really hard to get new labor laws passed so that in this like new industrial age where women were joining the workforce in numbers that they hadn't before they were pushing really hard to pass laws where there were limited work hours for women or where you know you could say like if a woman goes on maternity leave she should maybe have different treatment than a man does in the workplace. And then there are of course also some people who are just in the camp of like ah, we already have a 14th Amendment that's sort of more broadly guarantees equal protection for every citizen under the law. And you know we don't really need this amendment.


Nick Capodice: [00:08:54] More on the ERA and the iconic activist who by some accounts is the single reason the ERA didn't pass in the 1970s. That's after the break.


Nick Capodice: [00:09:06] Welcome back to Civics 101. We are here with Lillian Cunningham, journalist for The Washington Post and host and creator of two of their podcasts, Presidential and Constitutional. I'm Nick Capodice here with Hannah McCarthy.


Hannah McCarthy: [00:09:18] So in the 70s and the 80s who was leading the charge against this equal rights amendment?


Lillian Cunningham: [00:09:25] So the main figure is this woman Phyllis Schlafly and she is she is a lawyer and she's also a conservative political activist and she is one of these women who very much felt that women should be treated differently under the law.


Nick Capodice: [00:09:48] Yeah and we've actually dug up some audio here of Phyllis Schlafly speaking about her views on the ERA.


Phyllis Schlafly: [00:09:54] My youngest daughter became 18. And I realized that what these people really wanted was to take my five 5 foot 2 little girl and treat her just like a man and draft her and put her in basic training and teach her to kill and send her out into our country's wars just like the men. Yes I do get emotional about that.


Phyllis Schlafly: [00:10:17] That brought about a very cutthroat censorship of elementary school textbooks, so that they eliminated ego pictures of women in the home and women with babies. Now I believe that strong nations depend upon strong families, and that child care should not be primarily a governmental function.


Archival audio: [00:10:34] Mrs. Schlafly in a well organized and financed campaign has been flying around the country inspiring opposition groups such as this one in Dade County, and the anti amendment mail started coming in.


Lillian Cunningham: [00:10:48] At least in the kind of simple telling of the story she's kind of the main reason why everyone who supported the ERA feels that they weren't able to get the 38 states they needed by the seven year deadline. You know for every pro ERA campaign that was mounted there was Phyllis Schlafly with the anti ERA campaign competing against state and cutting into its momentum.


Nick Capodice: [00:11:19] So I have two questions about where the amendment stands now, and the first is what would be the tangible effects if it were to be ratified?.


Lillian Cunningham: [00:11:28] So there are people who say at this point the ERA is more symbolic than anything else, that it's important for us to put it in the Constitution because it's important for us to acknowledge as a country that we have gender equality, but that in practice you know we've already kind of set up a legal system that can you know account for and protect women so that some people say not much will change.


Lillian Cunningham: [00:11:58] Other people of course the ones who are you know out there right now advocating for it they say it could have an effect on things like equal pay in the workplace for women. It could mean that women or actually men couldn't be charged different insurance premiums, health insurance, car insurance things like that. You know just based on their gender. It could have some kind of future effect on parental leave. So we don't really know all of the ways that it might play out. And that's you know, we won't know even if it does eventually make it into the constitution and we won't have an answer right away of course because all of that sort of thing gets set over time in Supreme Court cases kind of set the precedent for how they're going to how they're going to read that constitutional amendment.


Hannah McCarthy: [00:12:55] It strikes me that it's it's hard to overturn what the Constitution says but it's not quite so hard to overturn what a law says.


Lillian Cunningham: [00:13:06] Absolutely. You know with the exception of prohibition where we put that into the constitution and then repealed it eventually no other constitutional amendment in our history has been repealed. And it is the most permanent way we have of fixing something into you know the governing structure of our country. So it kind of buffers it from the winds of any particular political climate or you know President in office or Congress leaning this way or that way. Absolutely. Yeah that I think is one of the strongest arguments there is for why it would make a difference if we put it in the Constitution.


Nick Capodice: [00:13:55] And I guess the biggest question for me is what's going on right now with equal rights amendment. Why why is it coming into the news as we speak?


Lillian Cunningham: [00:14:03] That's the kind of curious and exciting and interesting thing right now is that the deadline the original deadline Congress set was 1979. And by 1979 35 of the 38 states that needed to ratify it had ratified it. So there were three states away from getting it officially into the Constitution. So Congress decides they're going to extend the deadline by three years until 1982 and give some of these straggler states a chance to ratify it so they can get the three more that's needed which was a controversial move at the time. So that second 82 deadline comes along. There are still 35 states. And it's you know kind of just pronounced dead. Like Congress doesn't extend another deadline. And the idea is that OK if we want an equal rights amendment we now need to go back to square one. It will need to be proposed in Congress again passed by Congress again sent to the states all the states again. So there are people today who say the ERA is actually dead. That's it. It's done. Well. Other people say you know I don't think so I think if we still get three more states we could go to Congress and say hey we have the 38 states we finally need. If Congress had the right to put a deadline on it in the first place and put an extension on the deadline then you have the ability kind of after the fact to go back and say OK we're going to sort of waive that original deadline and we're going to honor the rest of the state ratifications.


Lillian Cunningham: [00:16:00] So there are people who have since 1982 been kind of quietly pushing to get the other three states to ratify it so that we know as a country could then have to sort of force Congress's hand to decide you know what are they going to do. And what's happened is that last year Nevada kind of out of the blue passed it. Or they ratified it. Their state legislature decided to ratify the Equal Rights Amendment. And that meant there were 36 states and then just recently Illinois decided to do the same thing. So that's now 37 states that have said they want this amendment in the Constitution. So there is a huge question mark right now. Like can we get a 38th state? What state would it be. And you know the big question which is what in the world happens if we do get 38 states and Congress then needs to decide whether it's going to honor this. Even though the deadlines expired. So that's where we stand right now. It's a question again without an answer. We have no idea what Congress would do.


Nick Capodice: [00:17:36] Lillian Cunningham is a journalist with The Washington Post and the host and creator of Two sensational podcasts, Presidential and Constitutional. Do yourself a favor and listen to them. Presidential is a podcast about each of our presidents and onstitutional is an in-depth look at the stories of the people who framed and reframed the Constitution and our nation. Today's episode was produced by Justine Paradis with our executive producer Erika Janik. Our staff includes Ben Henry Taylor Quimby Jimmy Gutierrez and Jacqui Helbert and it's hosted by Hannah McCarthy and me Nick Capodice. If you have a question about this grand old American experiment. Send it to us.


Nick Capodice: [00:18:16] You can e-mail us at Civic's 101 at NHP dot org or tweet us at @civics101pod. Civics 101 is a production of new Hampshire Public Radio.






Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

The Affordable Care Act

On today's episode, we tackle a defining law from the Obama administration, the Affordable Care Act -- better known as Obamacare. Some people love it, others hate it, but what did the law really do? Is American health care actually more, you know, affordable? And why is there so much talk of repealing the ACA? Our guide today is Julie Rovner, Washington correspondent for Kaiser Health News

This episode was recorded on 6/11/18.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Nick Capodice: [00:00:05] I'm Nick Capodice.

Ben Henry: [00:00:06] I'm Ben Henry.

Hannah McCarthy: [00:00:06] I'm Hannah McCarthy.

Nick Capodice: [00:00:07] And today we're talking about the Patient Protection and Affordable Care Act.

Ben Henry: [00:00:12] Otherwise known as Obamacare.

Nick Capodice: [00:00:13] We're talking about Obamacare!

Hannah McCarthy: [00:00:14] Obamacare, yeah that's how I know it.

Ben Henry: [00:00:17] So guys the reason I wanted to talk about this is I saw this graph in The New York Times a couple of weeks ago and I found it shocking. What the graph shows is it lays out the amount of money that the United States spends on healthcare per person compared to our life expectancy. How long we live in general you know is a measure of how healthy we are.

Hannah McCarthy: [00:00:38] Yeah I'm looking at it right now it looks like our life expectancy is like seventy nine.

Ben Henry: [00:00:43] Yeah this graph shows that we spend way more money on health care than other developed nations and we don't live longer because of it compared to those other nations. We're kind of somewhere in the middle of the pack in terms of life expectancy.

Nick Capodice: [00:00:57] But we are way ahead of the pack in terms of how much we spend.

Ben Henry: [00:00:59] Way ahead--we're spending all this money and it's not clear what we're getting out of this. And the reason that this article was crazy to me is because the takeaway from the whole article is that we don't really know why. We're not sure why the cost of health care is so high in this country.

Nick Capodice: [00:01:18] I'm very keen to have Obamacare explained to me because I know sort of what it is but I have no idea how the nuts and bolts bolts all work together for it.

Ben Henry: [00:01:27] So we're talking to Julie Rovner. She's a Washington correspondent for Kaiser Health News and she also hosts a podcast for them and she is a veteran healthcare policy reporter. And guys, no question is too stupid.

Nick Capodice: [00:01:41] Oh good.

Hannah McCarthy: [00:01:42] Thank God.

Ben Henry: [00:01:43] We're going to figure out health care.

Nick Capodice: [00:01:50] Julie welcome to Civics 101.

Julie Rovner: [00:01:53] Thank you for having me.

Nick Capodice: [00:01:54] So set the stage for us it's 2008 Obama comes into office. What are the problems that he and his administration see in the U.S. health care system?

Julie Rovner: [00:02:04] Well there are two big problems in 2008. One was the very large number of people who did not have health insurance and some large percentage which could not get health insurance if you didn't get health insurance through the government or on the job and you had to buy your own. If you had a preexisting condition if you had ever basically used the health care system you might not have been able to even buy health insurance at any price if you could buy it it might have been prohibitively expensive.

[00:02:32] At the same time health care costs were rising rapidly they still are by the way. And there was an effort by basically all of the stakeholders everybody involved in healthcare delivery, purchase, consumption, who wanted to do something about the rising cost of health care.

Hannah McCarthy: [00:02:50] So with the Affordable Care Act what were the major provisions in the act? What were they trying to solve?

Julie Rovner: [00:02:57] The main two pieces of the Affordable Care Act that we tend to talk about were, one, the insurance reforms requiring insurance companies to sell to people with preexisting conditions to sell to them at the same price and to not charge women more.

[00:03:14] But also the requirement for most people to either have health insurance or pay a fine. Those were all the things that sort of went together to try to shore up that individual market where about 20 million people buy their own coverage.

[00:03:27] And the other major piece was the expansion of the Medicaid program. Previously Medicaid was available to people with low incomes. But you had to be low income and something else you had to be low income and a child low income and a pregnant woman low income and someone with a disability or low income and a senior.

[00:03:46] Basically what the Affordable Care Act said was you really just had to have a low income and then you could be eligible. Originally that was a requirement all states were going to have to expand Medicaid. In 2012 the Supreme Court ruled that the Medicaid expansion was coercive to the states and it had to be voluntary. So now we have most of the states doing it because the federal government is paying the vast majority of that cost. But there's still 18 states I think that have not yet decided to opt into that Medicaid expansion.

Nick Capodice: [00:04:17] So how did it do in solving those two problems.

Julie Rovner: [00:04:21] Well I think the consensus is it did better at covering people than it did at lowering costs. And there's a variety of reasons for that. But certainly millions of people have joined Medicaid under the states that did expand the people who were getting help paying for their coverage.

[00:04:39] There are a lot more of those people, some other people for complicated reasons have been priced out of that if they make too much to get help from the government. So it's been sort of a give and take in the individual market but yes many more people overall have coverage than had coverage before the Affordable Care Act was passed on the cost side.

[00:04:59] There were a lot of changes to Medicare and they were all intended to be experiment. So some of them have worked better than others of them. Healthcare spending went down rather dramatically in the years following the enactment of the Affordable Care Act. There was a very lively debate amongst analysts and economists about whether that was because of the law or because of the the the Great Depression the recession that still not clear I think the consensus was it was sort of a combination of the two.

Hannah McCarthy: [00:05:28] So you said that it didn't necessarily lower costs but Affordable Care is built into the name of the act. Are you able to explain in a not too complicated way why it did not lower the costs of the cost of health insurance?

Julie Rovner: [00:05:42] One of the big pieces of the Affordable Care in the Affordable Care Act was helping people who didn't have job based insurance or didn't have government insurance afford private insurance and it has done a very good job at that. Previously if you earned thirty thousand dollars a year and insurance costs two thousand dollars a month that just wasn't going to work for you. But now there are subsidies that will help you know people really with a family of four up to about 90000 dollars. Help them afford insurance.

[00:06:07] So in that sense it did make insurance more affordable for the people who were getting help. What happened was the people who weren't getting help were having to pay increases that were very large.

Nick Capodice: [00:06:20] Can you tell me about some of the major criticisms of Obamacare then when it went through and even up to now?

Julie Rovner: [00:06:25] Well Of course the biggest criticism came from Republicans who voted against it unanimously in the end which is that they just didn't want more government involvement in the health care system. Government is already depending on how you look at it either covering or paying close to half of the nation's health care bill. So there's already a lot of government in the health care system and this was seen as perhaps a step to a fully government paid system ... Obviously Republicans would like more market and less government.

[00:06:59] There was also a concern that particularly the requirement that people have insurance or else pay a fine sort of offended the libertarian streak that runs through many Americans of both parties. I mean that was that was just an ideological line that people didn't want to cross. Interestingly enough that the idea of that individual mandate requiring people to have some responsibility for health care that they were likely to consume whether or not they had insurance was originally a Republican idea. It started in the early 1990s when President Bill Clinton was proposing a much more government focused system. That was the Republican's response. They kind of backed off of it later. But then of course they did do it, the first individual mandate in the United States was in Massachusetts in 2006 under then Republican Governor Mitt Romney.

[00:07:48] So it was always sort of kicking around as a Republican idea. But when the Democrats adopted it the Republicans decided they wanted no part of it and indeed it has traditionally been the least popular part of the Affordable Care Act with the public.

Hannah McCarthy: [00:08:01] Why should there be an imperative against not having health insurance? Why Does the government believe that we should?

Julie Rovner: [00:08:08] Well the argument is that almost everybody's going to use health care regardless of whether they're insured or not. So if you're not insured and you get in an accident and you're taken to the hospital and you're treated that's going to cost a lot of money and without insurance you're probably not going to have enough money to pay for that. What happens. The health care providers have to write that off and therefore raise prices for everybody else. So those people are considered free riders. They're basically getting something for nothing. There is an argument that people should have the responsibility for something that is likely to occur i.e. that you're likely to use health care at some point. That is sort of the the moral and societal argument for it.

[00:08:46] The obvious you know personal argument for it is that if you end up needing health care and you don't have insurance you are likely to go broke. So there is there's something to for yourself to having health insurance. But there are people who just simply don't want it. And that was in the law it said OK if you don't want it you're going to pay this fine. And frankly the fine is still lower than the cost of health insurance in almost every case.

[00:09:10] So the idea was that those people would pay what was referred to sometimes as a free rider penalty they would pay that penalty and it would go to help offset the health care costs of people that didn't still have insurance.

Ben Henry: [00:09:29] There's one other component of the ACA that I'm curious about which is the requirement that all health plans include a certain barebones set of benefits in the plan. Can you talk about why that was part of the ACA and what the idea is there?

Julie Rovner: [00:09:43] Yes this was one of the most difficult parts of the ACA for the people who put it together which was what constitutes adequate health insurance. What does a minimum package of benefits have to look like. And it came from a lot of research that showed many people had insurance but they were under insured that things that were likely to happen were things that they wouldn't be covered for maternity care was a really big one. You know many many families not just women because it's usually a family that's having a baby in terms of the finances. Many individual policies didn't cover maternity was something that people were sometimes expected to pay for themselves these days having a baby costs in the tens of thousands of dollars not an amount that most families can comfortably handle.

[00:10:29] Many insurance policies didn't cover mental health or substance abuse issues something that we know is very common. So this was sort of an effort to try to reach that balance. But that's you know this is a question of what as a government do you want to actually mandate for people to have in terms of health insurance.

Hannah McCarthy: [00:10:49] So why is it so expensive? We were sitting here in the studio right before we called you saying you know we get these bills you know from an MRI for example 200,000 dollars and I only have to pay a portion of that. But why on earth would a quick procedure cost that much money? Is that an accurate representation of what it's costing the hospital or whomever?

Julie Rovner: [00:11:12] Well it depends who you ask and this is the continuing debate. Why does health care costs so much. Actually why does the United States spend so much on money that we think has been pretty definitively answered and I quote the late Uwe Reinhardt, Princeton health economist: "It's the prices, stupid." In the United States, there is no government control of prices for prescription drugs. There is within the Medicare program and within the Medicaid program but in the private sector the government does not control how much health care practitioners and suppliers of healthcare things can charge. And so they basically charge what they can. There are libertarians and market driven Republicans who argue that one of the problems is people with insurance because they don't see the bill so that the insurance company will pay it. The patient has no skin in the game therefore people charge more. It's not entirely clear why prices are so much higher in the United States than in other industrialized nations. But prices are so much higher in the United States than they are in other industrialized nations.

Nick Capodice: [00:12:20] And how do we measure up against other industrialized nations in terms of healthcare and prices?

Julie Rovner: [00:12:25] Not very well. We certainly pay the most, but when you look at outcomes you know how healthy our population is. Americans are less healthy than those in many other advanced nations that's who we tend to compare ourselves to. And that is you know for again it's not just the health care system it has to do with other social supports that other countries have. You know with income and the inequity of income in the United States with to some extent how big we are. But yes we spend the most and don't get that much back for it. That's pretty clear.

Hannah McCarthy: [00:13:04] What happened in terms of public perception of the Affordable Care Act? Because I know it didn't start off so hot but then things seemed to balance out a little bit.

Julie Rovner: [00:13:14] Yeah from the beginning the Affordable Care Act was popular among Democrats and unpopular among Republicans. So the most important determine of whether you like the health law or not was what party you identified with. You know when things went wrong support dipped when things went well support rose in general. It was really only last year when Republicans started you know going after the law in a serious attempt to repeal it that more than half of the public suddenly decided that they liked it. And that had mostly to do with independent voters turning more strongly in favor of the law.

[00:13:48] But indeed there's a famous Jimmy Kimmel's sketch that I tend to show when I go out and talk to people. He asked people on the street did they which did they prefer Obamacare or the Affordable Care Act. And everybody he talked to said Oh they preferred the Affordable Care Act they didn't like Obamacare even though of course they were the same thing. So there is something to the words that you use to describe it.

Hannah McCarthy: [00:14:12] So as someone who has covered health care for so long, what is your personal opinion do you feel that the Affordable Care Act protected patients and made health care more affordable across the board for Americans?

Julie Rovner: [00:14:24] You know one of the things I've seen in my now more than 30 years of covering health policy is what tends to happen is that Congress passes a big law, they see what works and what doesn't and they fix what doesn't work. That really hasn't been able to happen with the Affordable Care Act because the Republicans took over the the house right after it passed before it was implemented by the time it was implemented fully. Republicans were in charge of the House and the Senate so they didn't want to fix anything.

[00:14:53] And of course now Republicans who say they don't like the law are in charge of the House the Senate and the White House. So there really has been no chance to go back and tinker with the things that didn't work so well. Will there be we will have to see.

Nick Capodice: [00:15:07] Are there any other countries you think we could look to for guidance for. Is there a better way to do this that you've seen?

Julie Rovner: [00:15:13] Well everybody every other country is struggling with health care costs. Health care is expensive. It gets more expensive. We have dramatic breakthroughs and the people who create those dramatic breakthroughs want to be you know reimbursed for their intellectual work. And I think most people agree that they should be.

[00:15:32] The question is at some point can society and I'm talking about society in general not just the U.S. not afford these things. And you know so some some countries decide to sort of hold down costs by creating queues as they say making people wait. If it's not you know urgent maybe you'll have to wait longer. Americans don't like to wait.

[00:15:53] There are you know Canada has basically what would be what the U.S. could understand as Medicare for all. It's a government paid system but not a government run system. The United Kingdom has what more like the Veterans Administration year it's both the government paid system and a government run system. But Germany and Switzerland and the Netherlands all have hybrid public private systems with government funding and private insurance. Not that dissimilar from what we have and yet they pay considerably less than we do because they have a much more government structured private market than we do.

Ben Henry: [00:16:29] Julie what do you think we can expect going forward? Are there really viable alternatives to the ACA that people are advocating for? Do we think is it going to go away entirely and we'll just have an open market? I mean what do you expect like might happen in the next couple of years?

Julie Rovner: [00:16:46] Well there's a huge spirited debate in the Democratic Party on whether to try to fix what's wrong with the ACA or whether to scrap it and go to a Medicare for all type single payer plan. And there is growing support for that. But people haven't, we've not really debated what that would mean in terms of tradeoffs in terms of much higher taxes in terms of do you really you know people love Medicare do you really trust the government though to basically handle Medicare for you know 325 million people rather than the 55 million people who are on Medicare that it's hard to know what the result of that debate would be, but I would guess that fewer people would support it than than support it at first blush.

[00:17:27] Republicans would like to get rid of the Affordable Care Act but they don't agree on what to replace it with either some of them would like to just give a chunk of money to the states and let the states figure out what they can do. Some of them would like to go to just an entirely market driven system. Basically people are kind of at loose ends figuring out exactly what they would like to see if not the Affordable Care Act.


Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.


Today on Civics 101, Ron Elving takes us through Tariffs. What are they? What are the pros and cons of taxing goods that enter our country? What is the effect on the consumer? And finally, how do trade wars end?

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


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




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


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


Nick Capodice: [00:00:03] And today on Civics 101 we answer question for Sara Mottaz of Seattle.


Sara Mottaz: [00:00:08] Well I've been interested in tariffs lately because they've been in the news so much.


Archival audio: [00:00:11] The Foreign Ministry then clarified and confirmed that China in fact did retaliate with its own tariffs... midnight eastern time, the U.S. raised tariffs on 34 billion dollars worth of Chinese goods.


Nick Capodice: [00:00:24] It's one of those things that whenever I used to hear about tariffs. I would just say oh god I'll learn about this later.


Hannah McCarthy: [00:00:29] Right.


Nick Capodice: [00:00:29] I can't learn about this now.


Sara Mottaz: [00:00:31] I know! I know, that's why I asked the question. We've always had tariffs in place but I don't really understand how they came about to begin with and what changes we're making to tariffs now and how they affect our country and the world economy.


Nick Capodice: [00:00:44] To learn about tariffs we interviewed Ron Elving.


Ron Elving: [00:00:47] I am the senior editor and correspondent on The Washington desk at NPR. I'm also part of the faculty of the School of Public Affairs at American University.


Nick Capodice: [00:00:57] It's worth noting we interviewed Ron before the trade war with China. However we did want to know the basics of what is a tariff. Why do we have them.


Hannah McCarthy: [00:01:04] And how does a trade war end? Why don't we start off by defining a tariff.


Ron Elving: [00:01:12] A tariff is simply a tax that is imposed on goods that are being imported into ones country. So if the United States passes tariffs, we tax the goods of other countries as they arrive in the United States and countries impose tariffs on our goods and those taxes have to be paid by the owner of the goods when they enter someone else's country.


Hannah McCarthy: [00:01:34] So it's the person who is providing the goods who is paying the tariff?


Ron Elving: [00:01:38] That's right. It's the manufacturer who is responsible for that particular tax it has to be paid to the government of the country that is governing the docks in the port or the airport where your goods are arriving.


Nick Capodice: [00:01:52] Now is this just a way to make money or is there another reason we've always done this?


Ron Elving: [00:01:57] Oh it's certainly both. It is magnificently a way to make money and for much of American history it was the main way that the United States federal government made money. There was no federal income tax until the 20th century with a brief exception during the Civil War and the federal income tax as we know it today is really a creation of the WWI period. So the big source of income for the United States government and many other governments was taxing goods that came in from other countries. But that was only part of the reason. That's pretty good reason in and of itself of course. And by the way that the first Tariff Act passed by Congress was the second bill that Congress passed. The very first session of Congress in 1789 right after they passed a bill for oaths of office and after they'd gotten that little formality out of the way they started passing tariffs. That is how important and fundamental it was to the original United States government. You could even argue that to some degree the American Revolution and then later a civil war had a lot to do with tariffs and the conflicts between the United States and Great Britain. The conflicts between the regions of the United States were largely tariff driven. So there were a lot of other purposes besides just raising money. For example trying to provide some money so that America in its early days could build up the kind of industries that might eventually compete with Great Britain. And keeping those goods from Great Britain expensive so that new manufacturing enterprises in the United States could make cheaper goods and sell those to their fellow Americans and get a good start in the world of commerce. Otherwise it was difficult to compete with everything that was coming over the Atlantic.


Nick Capodice: [00:03:43] So it's a good way to start. And yet here we are in 2018. Why do we still continue to be raising tariffs and increasing tariffs?


Ron Elving: [00:03:50] At this point. It's a bit of a throwback. What's going on with a Trump administration right now is very much a throwback to another era because the United States after having been a leading protectionist power if you will of high tariffs and other kinds of restrictions and other people's goods all through the 1800's, half of the 20th century, after 1945 after the destruction of Europe by World War II. There was a sense that we needed to help the rest of the world get back on its feet. So of course we had the Marshall Plan in the late 1940s but probably even more important than that, the United States really switched after World War II to being a free trading power. That doesn't mean we had no tariffs.


Ron Elving: [00:04:33] Not by any means but we changed the emphasis in our trade policy and our foreign policy to be not so much isolationist as we had been before World War II as to be a world leader as to be the country that made sure the entire world was working on the same sort of currency system. We largely set the value of currencies under a system that was devised largely by the United States and we were very generous in letting other countries sell their goods into America. China, Japan, certainly the countries of Europe, other countries around the world, got a good deal by selling their goods into the United States and we were far far less protective than we had ever been before. And we had long since turned to other sources of revenue to actually run our federal government. So in 1945 was a huge watershed year. Now more recently as we have seen more trade protectionism grow up around the world this has become more complicated. And Donald Trump feels that we have been progressively taken advantage of over the last several decades and that even when we negotiated what seemed like a kind of fair deal such as the North American Free Trade Agreement known as NAFTA that goes back to 1994. Even when we got something like that done with Canada and Mexico that it was a better deal for Canada and Mexico than for the United States. That is debatable. There are certainly lots of people who defend NAFTA but Donald Trump found a lot of political payoff if you will he found paydirt by arguing that NAFTA was a bad deal for us that the proposed Trans-Pacific Partnership was a bad deal for us and that our relations even with the European Union perhaps our closest economic allies in at least a geo political sense posing them against Russia were also not in our best interest and that we were getting ripped off. In his view.


Hannah McCarthy: [00:06:31] So what is the intent of the tariffs now? Are we trying to make more money or are we trying to protect our industry?


Ron Elving: [00:06:38] It's really to protect our industry and to, I'm going to give an opinion here, but I believe that the real intent here is to some degree to make a show of punishing some of our trade partners who are also our military allies NATO North Atlantic Treaty Organization which is largely the same group of countries as the European Union. President Trump feels that these folks have been taking advantage of us. That Japan for example which we have included under our nuclear umbrella ever since World War II we have protected Japan we have been their military big brother that they have then turned around and profited from selling us their cars, but restricting what we could sell there and that now hour into the same kind of relationship with China although we certainly are not their military ally. We take a lot of their goods and they are more restrictive about what they were let into their country and all of this while it reflects that role that the United States has been playing in the world for the last 70 some years. While it reflects that role, Donald Trump says it's a bad deal for the United States and that our prosperity has actually been lessened by our efforts to increase the prosperity of the global economy. So we get this contrast between America first, we should just be taking care of our own interests and no one else's and the concept of globalism which is that a rising tide lifts all boats and all world economies doing better is better for the United States as well.


Hannah McCarthy: [00:08:12] So what does this mean for the consumer in either country when you've got these retaliatory tariffs going back and forth. Is that just jacking up the price globally?


[00:08:22] Yes it is because some of the money is not going to the company that has the goods to sell, it's going to the governments. The United States government when we impose the tariffs, the governments of China or Japan the governments of the European Union are collecting these taxes and they're coming from the consumer and they pay them at the exact same time they buy the goods. So this has been the great argument against tariffs over the years is that governments should not collect their revenue or get their revenue in this sort of subterranean way or slightly sneaky way by making it be part of the price that you pay for goods. Now in Europe they also have something called a Value Added Tax which does the same thing. Some people have argued for that in this country. But when you charge people more to get their goods into a country where they're going to be bought and sold, you are adding to the cost of the goods, adding to the cost to the consumer without actually giving the consumer any more value and without giving the company producing the goods any more revenue. The government interposes itself. And that's why philosophical libertarians, people who are political libertarians, people who believe in a free market, do not like tariffs; see them as just another form of taxation and see them as a kind of beggar thy neighbour approach to world trade.


Ron Elving: [00:09:46] If you think world trade is the single greatest driver of the rising of the human species from our earliest origins hunting and gathering to agriculture etc etc. including cultural improvement all over the world and eventually greater political understanding, if you see world trade as the key to all that then tariffs are a mortal enemy.


Hannah McCarthy: [00:10:10] We hear about Trump imposing tariffs. Does the president impose the tariffs does Congress impose the tariffs who makes the decision?


Ron Elving: [00:10:17] The Congress can pass tariff acts and impose tariffs. The president can also do it when Congress gives him the authority to do so. And Congress in recent years, particularly in the most recent decade or so, has been quite willing to give the president wide latitude particularly when a particular tariff can be portrayed as being a measure for national security. So for example with the steel and aluminum tariffs that really got this trade war going, this was justified by the Trump administration which did it just by fiat as a national security measure. In other words if we allow our steel and aluminum industries to get smaller and smaller eventually we will not be able to make our own weapons with our own metal here in the United States. And if we can't do that then we can't win a World War II. We can't be a world superpower unless we can make our own weapons with our own metal. And that has to mean a steel and aluminum industry here in the United States that is second to none. All right that's an arguable point. That's certainly something that someone could make a case for.


Ron Elving: [00:11:27] And Congress has basically stood back and said oh gee if it's national security then fine of course the other side the free traders will argue that there's no evidence that our defense capacity has been in any sense diminished. There's no evidence that our current arrangement for some imported steel and aluminium to be part of our defense industry is making us less safe. There's certainly no evidence that Canada is going to deprive us of whatever metals we might need for our national defense assuming of course that we still see ourselves as allies of Canada and we might very well see the North American continent as our true home and military strategic terms. So there could be questions about this national security justification by the current Congress, which is Republican controlled in the House and Senate, is in no mood to challenge President Trump on this particular issue. Now they may at some point rise up and challenge him on some of the other ramifications of this trade war. And there certainly are many people in Congress who are most disturbed at at least the retaliation in the trade war, for example Republican congressmen and senators from farm states. And there are many. The Republicans dominate in the farm states and they have many people on the ballot this fall who are worried because they see for example soybeans suddenly being the subject of tariffs in Asia and Asia eats a lot of our soybeans and we sell a lot of our soybeans to Asia. So if suddenly that trade is inhibited, not necessarily stopped of course but just cut back a little bit, that means a lot of farmers in the United States are going to be stuck with a lot of soybeans they can't sell. They've overproduced. They're going to take a loss. In some cases it may be a highly significant loss. And those Republican members of Congress and senators might just be feeling that even as soon as the midterm elections this fall.


Nick Capodice: [00:13:24] So you use the word trade war several times. How do trade wars end?


Ron Elving: [00:13:29] Trade wars can only end really with new agreements between the participant countries to cut it out. Now this can be done in a multilateral way. We have had over the years a series of meetings that went on not just you know a week or a month but for years where countries had delegations that would go to international locations for example Montevideo Uruguay was the site of some of these negotiations for a number of years it was called the Uruguay round. There was also a round of such negotiations back in the 60s that was known as the Kennedy Round because it had been initiated by John F. Kennedy when he was president and these negotiations work out elaborate and extremely detailed schedules of tariffs between countries. Or they just eliminate those schedules and say we're going to have free trade in this particular commodity, free trade in this particular manufacture. More often they're working out the details of the actual tariff schedules and those can lower tariffs or raise tariffs. And usually you're getting together to agree on lowering tariffs so as to have more trade so as to increase worldwide commerce. That's what these negotiations have been. And there is an organization there is a working document that's known as the General Agreement on Tariffs and Trade. GA T.T. often referred to as GATT and you'll hear people talk about GATT negotiations.


Ron Elving: [00:15:01] So that's how tariffs are lowered over time. That's how they're brought under control. Or you can have free trade agreements such as NAFTA the North American Free Trade Agreement or the Trans-Pacific Partnership that was negotiated with a number of Asian countries, not China. China was not part of the Trans-Pacific Partnership. In fact one could say TPP was intended to oppose Chinese efforts to impose its trade hegemony or its its domination of the economies of Asia and any anyway TPP was negotiated over the last several years and the first thing he did practically within his first week in office was Donald Trump withdrew US from the Trans-Pacific Partnership.


Hannah McCarthy: [00:15:46] Ron thank you so much.


Ron Elving: [00:15:48] Thank you Hannah. Thank you Nick.


Hannah McCarthy: [00:15:49] That was Ron Elving the senior editor and correspondent on The Washington desk at NPR.


Nick Capodice: [00:15:54] If you want to hear more Ron Elving you can check out our episode of the Electoral College at There you can listen to all our old episodes and you can get transcripts.


Hannah McCarthy: [00:16:04] This episode of civics one on one was produced by me Hannah McCarthy.


Nick Capodice: [00:16:06] And me Nick Capodice.


Hannah McCarthy: [00:16:09] Our executive producer is Erika Janik, our team includes Ben Herny, Jimmy Gutierrez, Taylor Quimby Justine Paradiz and Jacqui Helbert. Music In this episode is by Ryan Little.


Nick Capodice: [00:16:18] Civics 101 is a production of NHPR, New Hampshire Public Radio.






Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Contest Winner: Unconventional

Presenting the winning submission for our first ever student contest! Adia Samba-Quee wrote, narrated, and cast a mockumentary about the arguments surrounding representation at the Constitutional Convention in 1787. 


Check out some behind-the-scenes shots from our taping at the Springfield Renaissance School.

adia hannah nick.jpg

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



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


Nick Capodice: [00:00:06] Welcome to civics I'm a Nick Capodice.


Hannah McCarthy: [00:00:07] And I'm Hannah McCarthy.


Nick Capodice: [00:00:08] And as some of you may recall this spring we had our first ever student contest.


Hannah McCarthy: [00:00:12] So we asked high school students across the country to submit their idea for a civics radio piece and we got some really cool submissions.


Nick Capodice: [00:00:19] But the winner, Adia Samba-Quee from the Springfield Renaissance School in Springfield Massachusetts.


Hannah McCarthy: [00:00:25] Adia pitch says this radio play. She wrote the script, she cast a bunch of her friends and then we drove down to the Springfield Renaissance School to help her tape it. Couple of things you should know about Adia. First of all she's 15. And not only did she write this incredible script she ended up being a great collaborator and in our estimation would make a great radio producer one day.


Nick Capodice: [00:00:45] We were the lucky ones to be able to work with her. This play takes place in Philadelphia Pennsylvania in 1787 when the Articles of Confederation had been our governing document for about ten years and they had an awful lot of problems. So without further ado Civics 101 is honored to present Unconventional by Adia Samba-Quee.


Adia Samba-Quee: [00:01:05] Civics -- civics - civics -- 101!


Nick Capodice: [00:01:09] Nailed it.


Adia Samba-Quee: [00:01:10] Thanks.











By Adia Samba-Quee



NARRATOR: Adia Samba-Quee

KING GEORGE III: ~Aijah Davis~

AMERICAN #1: Brian Vo

AMERICAN #2: Lawrence Thompson

AMERICAN #3: Marcus Jean-Mary

BENJAMIN FRANKLIN: Michelle Santiago

DAVID BREARLY: Breanna Gushman





JAMES MCHENRY: Karla Rebollo



LUTHER MARTIN: Diana Asamoah


ROGER SHERMAN: Rashel Vargas

CALEB STRONG: Pamela Ciano






Narrator: When you've never truly been free, and then you later wage a whole war for the sake of freedom, you're going to need to figure out how to define freedom on paper, and then making sure it applies to each and every imaginable situation you're about to face as a newly-liberated nation. Farmer George didn't take the whole "revolution" thing well.

KING GEORGE III, audibly upset: You're lost without me! Lost!!

NAR: But America didn't immediately become the young, independent nation that don't need no motherland she wanted to be. For example, ahem. The Articles of Confederation.

AMERICAN #1: We don't really have to pay your taxes, only state taxes.

AMERICAN #2: We're about to get into a land war with Indians without your permission.

AMERICAN #3: We're going to make it impossible for anyone to try and fix this document.

NAR, talking directly to Americans: I thought you all hated this document.

AMERICANS, hesitant and not at the same time: Mmyes.

NAR: *sigh* The federal government suffered a decade of this. Fifty-five delegates, the most *high pitched* white and male *normal voice* citizens were cordially invited to indulge in the privilege of re-birthing government right here in the Philadelphia State House. And like actual labor, it was painful. This brings us to Talking Point #1.

BENJAMIN FRANKLIN:   B. Franks in the building!

*cheering from Framers*

*talking head*

Nar: B Franks, is indeed, in the house. Large Benjamin, how would you describe your approach to proposals during the early days of the Convention?

FRANKLIN: What’s with the surveillance device?

NAR: My… camera?

FRANKLIN: Yes, that thing.
NAR: Oh, I’m just recording a little documentary about the beginning of our American Constitution! I thought it’d be sorta neat to archive all the debates and decisions here!

FRANKLIN: You’d rather spend your day listening to a bunch of old jabronis ramble about rules and regs? That’s really sad.

NAR: *dejected sigh, clears throat* How would an old jabroni like you describe your approach to proposals during the early days of the Convention?

FRANKLIN: Obviously, I would describe it as calm, cool, collected. The sorta levelhead   ed wisdom and guidance severely lacking in our current government.

*end talking head*

FRANKLIN: Supermajority? Sucks. One-House Congress? Sucks. The Articles of Confederation? Sucks. How are we going to change the AOC if even the method of amending it sucks?


DAVID BREARLEY: We... keep the Articles of Confederation and work hard to improve it?

NAR and FRANKLIN simultaneously: And you are…

*talking head*

BREARLEY: David Brearley of New Jersey. That's spelled B-R-E-A-R-L-E-Y. I believe that… Maintaining a union is going to be difficult, no doubt. But no one guaranteed governing was easy.

*end talking head*

FRANKLIN: Well, David Barley?

BREARLEY: *sigh* Yes?

FRANKLIN: You're incorrect. We burn the Articles of Confederation. And put a new Constitution in its place.

BREARLEY, to self: Burning it seems to be easier than governing.

FRANKLIN: Any questions?

CHARLES PINCKNEY: What if we create a new constitution and it fails?

FRANKLIN: Then I guess I'll see you in another ten years, CHARLES PINCKNEY. Any more questions?

NAR: Jonathan LANGDON of New Hampshire raises his hand.

LANGDON: Where's Rhode Island?

FRANKLIN: Listen, kid. I may but eighty-eight years old, but I know a thing or two. If Rhode Island was afraid of a powerful federal government, let her be a coward in the comfort of her own home! We’ll be the ones with a legacy.


*talking head*

NAR: JONATHAN LANGDON, why did you choose to say something so controversial… yet so brave?

LANGDON: Well, what had happened was I… didn’t know what body of water surrounded Rhode Island, and I was concerned the delegates didn’t catch a ferry in time. But I guess it’s a misnomer. No island. *sigh* Just a state. Tell FRANKLIN and I’ll hurt you.

*end talking head*

FRANKLIN: Aight. If we ignore what LANGDON just said, I think we can call it a wrap. All those in favor of revising the Articles of Confederation?

*eight Ayes and four Nays*

 See ya tomorrow.

*tap, tap, tap, snap, snap, clap*


R: Talking Point #2

NAR: While we were gone, George Washington proposed a way to prevent the federal government from acquiring too much power.

*talking head*

GEORGE WASHINGTON: I serve as a general in one war. Just one. And now whenever I walk into a room, those guys address me as sir. Someone called me His Excellency last night. I'm not as excellent as they think I am. Or maybe not as excellent as they think I think I am. Anyway, I'm trying to get three equal branches of government to keep each other in check all the time. Only thing is the executive includes a President. And if those fools elect me, I swear I'm gonna flip.

*end talking head*

WASHINGTON: Do you know how much federal government accomplished under the AoC? That's right, nothing

BREARLEY: But we di-

WASHINGTON: Nothing! Instead of one single stick, we all get three branches- stay with me, stay with me- of government. One branch is the Legislative, who writes up laws of our nation. Once we work out what Congress is actually made up of,those representatives will be responsible for proposing new laws. The executive branch ensures law is being carried out in the country. The *lowers voice* President is the head of this branch, along with his Cabinet. Finally, the judicial branch interprets the law passed by Congress. Each branch has the ability to override the actions of another; no branch is more powerful than the other.


VARIOUS FRAMERS: WASHINGTON for President! *clapping and cheering* Nothing but respect for His Excellency! I can’t believe WASHINGTON invented equality!

WASHINGTON, flustered: Stop this right now! Stop this! I just want to rest!

PATTERSON: He’s not excellent.


PATTERSON: That's a terrible plan. (WASHINGTON: Alright, let’s calm down!) It smells like monarchy.

WASHINGTON: If my plan was so terrible, then why did it just pass eight to four?

PATTERSON: It did? *pauses, counts to self* Ah, damnit.

*transitional sound*

NAR: The delegates also tried? to turn the 9/13 state votes needed to fix the Constitution.

WASHINGTON: If there was supposed to be a takeaway, it died.

NAR: The voice of the People. Did anyone tell you you’d make a good-

WASHINGTON: Knock it off.

NAR: Yessir.

*talking head*

Uh, CHARLES PINCKNEY of South Carolina, what do you hope to accomplish in order to soothe the rocky process of passing laws? *clapping* Hello? PINCKNEY?

PINCKNEY, startled: Huh? What?

NAR: You asked for an interview. I'm giving you an interview.

PINCKNEY: Oh. Yeah. Sorry, I'm a little nervous. *awkward giggling*

NAR: *forced pity laughter* Just answer the question.

PINCKNEY: What was the question?


PINCKNEY: We all thought supermajority was a good choice 6 years ago. I was like, "9 out of 13 states? We get along pretty well, this won't be too bad. We'll regularly see at least 9 of us in Congress agree to a law in order for it to pass." And then they were like, "Um, being difficult is so funny, let's do it for 6 whole years." And I was like, "No, don't do that, stop." And they were like, "Whatever loser, that's why no one loves yo…" *clears throat*

NAR: PINCKNEY, you should probably talk to someone about that.

PINCKNEY, sounds zoned out: Probably.

NAR: Can we edit that out?

*end talking head*

PICNKEY: We need to allow laws to pass with a majority vote.

FRANKLIN: Simple majority enough! Get it guys? The majority… bah. All those opposed?


FRANKLIN: Damnit, Langdon !

LANGDON: Under PINCKNEY dookie proposal, (PICNKEY: JONATHAN, that's not really funny) 51% would be enough to pass a law. What if almost all of us disagree with a law? You expect me to tolerate it because it's a fact of life not everyone is going to agree with me?

PINCKNEY: That would be nice.

LANGDON: *mocks Picnkey's voice* That would be nice. Disgusting. That doesn't ring true with my understanding of freedom.

NAR: Gag.

LANGDON: We will not be ens-

PINCKNEY: LANGDON tried to say the S word!

 *stir of chatter from the delegates*

WASHINGTON: Chill bro, chill chill chill Jon just chill.

FRANKLIN: Do you patronize your wife with that mouth? *retches* Strike that comment from the record, MADISON.

MADISON: *draws line on paper*

WASHINGTON: I am so sorry you all had to hear that.

NAR: Rule number one of the Convention- don't ever say the S word.

Talking Point #3: Making the new constitution easier to amend. Here comes Maryland's JAMES MCHENRY, standing his ground.

MCHENRY: If we don't make this new Constitution into something that can be fixed or change, we're going to find ourselves in the exact same place in a few years. I am not perfect, DAVID BARNEY is not perfect, WILLIAM PATTERSON is a mess, along with the entire state of New Jersey (WILLAIM PATTERSON says "Hey!" in the background), so we are okay with the fact this constitution won't be perfect. I call for the amendment process to be changed!

MADISON: How, exactly.

MCHENRY: I don’t know, JAMES MADISON. Something with fractions, maybe?

JAMES MADISON, scratching quill to parchment: *condescending chuckle* Fractions… based on his oration skills and overall unremarkablilty-ness, I am most certainly the superior JAMES.

NAR: Yes, JAMES MADISON has declined any interviews with me from now until "he's ready" because he wants to take notes for himself about the various delegates. Nerd.

Nar: MADISON rises from his seat. He finally has something to say to me.  

*talking head*

Nar: What kind of things would you want the audience to know about you, M adison?

MADISON: A magician never reveals his secrets.

Nar: …you're not a magician, you're just a Framer.

MADISON: …A framer never reveals hi-

Nar: Listen, are you gonna tell us your proposal or not, because we have plenty of delegates behind you who'll be willing to share.

MADISON: *pause, gets uncomfortably closer to the microphone* Basically-

Nar: You don't have to be this close to the mic.

MADISON, ignoring the NARRATOR: You know how Virginia is the biggest state in the country?

NAR, irritated: Sure.

MADISON: Well, when Congress is voting for legislation to be passed, our votes should count for much more than like, Delaware. Because, well, Delaware.

NAR: Delaware was the first state admitted to the Union.

MADISON: That's their only bragging right.

NAR: (beat.) Fair

MADISON: I simply believe representation in Congress should rely on population alone. Bigger state, bigger voice, bigger choice.

NAR: That'll be, uh, interesting to witness.

*MADISON's footsteps, signifying he left the confessional room, also, end talking head*

The room's reaction was, to say the least, interesting. Here is Talking Point #4.

MADISON: Fellas, I have an idea. Does anyone know how many people Virginia ha-

WASHINGTON: 747,000. Give or take.

MADISON: Right. And how many people live in your state, BEDFORD?



NAR: -represents the *hesitation* state of Delaware. He declined to explain his overall goal here at the Constitution, which leads one to assume he has no overall goals here. According to MADISON's notes, that is.

BEDFORD, with difficulty: 58,000.

MADISON, unknowingly being a butt: 58,000 and?

BEDFORD: *mumbles* 94.

MADISON: In what world should we be represented by one single Congressman when we are 12 times larger?

*Agreement from the larger state delegates*

MADISON: I'll tell you what world- England.

*more snaps and contented vocalizations*

MADISON: In *stomps foot* this nation, in this *weird, exaggerated pronunciation* constitution, states should be represented fairly *interrupted by almost-comical reactions from larger states, maybe church-y organ playing behind* which means representatives should reflect state populations.

BEDFORD: What you're trying to say is, Delaware should have one representative-

MADISON: -and we should have twelve.

*The larger states begin to chant ‘we should have 12' about four times, James yells over them and tries to explain that the twelve only applies to Virginia, not the rest of them, yadda yadda yadda*

NAR: This is the most smoothly I've ever seen a decision go down. I'm actually impresse- *WILLIAM PATTERSON jumps out of seat and startles NARRATOR*

*talking head*

Uh, sir, SIR! You interrupted me!

PATTERSON: Permission to speak?

NAR: *sucks teeth* Permission granted, or whatever, I don’t even care anymore.

PATTERSON: Hey hi, it's New Jersey's very own WILLIAM PATTERSON and I'm calling bull. This is not okay? Who thinks this is okay? Like, seriously, is that what chanting does to the Foolish?

Nar: I… can't answer any of those questions.

PATTERSON: I don't expect you to. This is not the spirit of our system. I thought the whole point of us coming together as a union, was that we're all going to be equal parts of our country. I've had enough New Jersey slander.

Nar: Oh, brother.

*end talking head*

PATTERSON: Gentlemen!

Nar: A hush blankets the crowd.

PATTERSON: Virginia only wants representatives to be decided by population size because it means states like them would suddenly have more power. My state of New Jersey is just as important as any other state, as even Delaware! We should have just as much as a say in the government as they do.

BEDFORD: Can- can you all leave Delaware out of this?

MADISON: Yes, you should have just as much a say in the government! But clearly there's something important about my state, so it's sensible for our votes to be prioritized. We're doing something right.


NAR: That indifferent ‘meh' was Luther Martin of Maryland, recipient of the ‘least rhythmic-sounding name in the English language' award.

MARTIN: Perhaps MADISON is right, MCHENRY. Some of the greatest leaders in our short history- looking at you, General.

WASHINGTON, sheepishly: Oh, stop.

MARTIN: Leaders come from these populated countries. Influence is about status, after all.

MCHENRY: See that door over there, Martin?

MARTIN: It's a finely constructed door.

MCHENRY: Could you show us how it works, please?

MARTIN: Certainly. *gets up to turn door handle* You simply rotate this knob and push *door sounds* open, and then close it and now I'm locked outside the room.

MCHENRY: Now you're locked outside the room, do you know why you're locked outside the room?

MARTIN: *silence*

NAR: *Whispers* For being the dissenting opinion within-

MARTIN: Oh, for being the dissenting opinion within my own group.


*talking head*

MCHENRY: *beat* I only kicked him about because he agreed with the other James.

*end talking head*

NAR: Tensions are at an all-time high.

LANGDON: Excuse me, but as a proud New Hampshirean-

NAR: Hampshirean is not a real word.

LANGDON: -I stand with New Jersey's Plan. If you are from a small state and you are okay with representation based on population, you are willingly giving up your speech in this nation. New Hampshire cannot and will not accept this if the proposal is passed. All the large states are going to do is gut our power and leave us unable to make decisions. In fact, we can become our own country, and not ally with you in any way. So, ha.

HAMILTON, knowingly being a butt: What if that happens?

MCHENRY, PATTERSON, and BEDFORD, JR simultaneously: Come again?

FRANKLIN: Get ‘em, Alex.

WASHINGTON: Why does everyone here enable gross behavior?

NAR: It’s the 80s.

HAMILTON: Perhaps we’re doing this to get rid of the weak links. Natural selection taking its course. To a point where the only states worth listening to are the populous ones. *slow and deliberate* What are you going to do about it?


What can we do about it?

PATTERSON: I… don't know.

LANGDON: What do you mean you don't know, you're the one who came up with this idea!

PATTERSON: I didn't think I'd get this far!

BEDFORD: We're very much outnumbered. If we do a vote now, there goes our Congressional representation. But, I have an idea. *whispers unintelligibly, accompanied with audible responses from PATTERSON*

PATTERSON: *to rest of Convention, as awkward and uncoordinated as humanly possible* If this proposal passes, our alliance will implode. BOOM. That's the sound of our alliance. All of us small states will leave. Maybe we'll be our own countries. Maybe we'll ally together. But we will not stay a part of a country that does not treat us like equals.

NAR: The room begins to descend into chaos, when, lo and behold.


*talking head*

SHERMAN: My name is Roger Sherman and I represent the beautiful state of Connecticut. I was doodling on my parchment because this Constitution stuff gets a little stressful for the old noggin, but I was like, "Why don't we incorporate both ideas."

NAR: You seem excited to announce this compromise.

SHERMAN: It's a Great Compromise. I'm quite proud of it.

*end talking head*

SHERMAN: Let's Make a Compromise! *triumphant sound effect* How about a two-house legislature? One house will follow the Virginia Plan and will give each state a number of representatives based on population size. We can call that the House of Representatives. And then we will have a second legislature called the Senate. That one will allow each state to elect 2 representatives, regardless of size. That means each "house" of Congress will have to vote on a proposal before it becomes a law.

*a collective wave of ahhhs follow*

CALEB STRONG: *passive-aggressive laughter*

*talking head*

NAR: This is CALEB STRONG of Massachusetts. First of all, are you okay, STRONG?


NAR: May I ask why?

STRONG: *deep breath* I'm going to have to say the s word.

NAR: Dear lord. Good luck out there.

*end talking head*

STRONG: Excuse me? Uh, hi, thank you for your hard work but I hate this. Are you telling me in the House of Representatives, slav-

NAR: STRONG is cut off by wailing and hollering. I love my job.

BLOUNT: He said the S word! Do not say the S word! That is not okay.

STRONG: But isn't that what y'all do? Partake in the slave tr-

WASHINGTON: Boy, what is wrong with you?

PINCKNEY: Did we not say we weren't going to use the S word? So can someone tell me why I'm hearing the S word?

NAR: STRONG attempted to bring up slavery at the Constitutional Convention. South Carolina has the largest domestic slave market in the United States. You can see the problem now.

PINCKNEY: It's not truly *with great disgust* sla-ver-y per se, it's more of a nonconsensual farming.

*Framers assent to PINCKNEY's synonym for slavery*

STRONG: Are you telling me that in the House of Representatives, *emphasis* slave states *audible wince from few delegates* are going to have a lot of power in the government because they are counting their *more emphasis* slaves as citizens they are representing? They should not be able to control other human beings.

NAR: He's on the right track. We could finally prohibit slavery in America.!

STRONG: Slaves cannot be counted as part of a state's ‘population of citizens, -‘

NAR, anticipation: Caleb, yes!

STRONG: They must be counted as property!

NAR, horror: Caleb, no!

*brief, loud chatter between slave and non-slave states*

BEDFORD, above all the chaos: We're gonna leave again!

*chaos increases in volume ever so slightly*


NAR: Woah.

SHERMAN: *resorts back to sunny disposition*

Let's make a compromise! *distorted, off-key triumphant sound*

*delegates begin to grumble*


*pause* Thank you.

BEDFORD, PATTERSON, BREARLY, LANGFORD, I totally get that you're upset. I'd be too. Why don't we agree slave states can count 3/5ths of their slaves towards their population? They can count most of their slaves, but not all of their slaves towards how much power they get in the House of Representatives.

FRANKLIN: I don't see a problem

NAR: Except the whole slavery part but okay.

FRANKLIN: All those in favor?

*Unanimous aye*

NAR: *beat*…Sherman never said all of his compromises were great.

*tap, tap, tap, snap snap clap*

Talking Point #5

*talking head*

NAR: I am sitting here with undoubtedly rookie of the year, in terms of Congressional approval, ALEXANDER HAMILTON. Now HAMILTON, what exactly do you plan to do after this one-hour break?

HAMILTON: I am planning to
propose… a college, of some sort. The electoral college.

Nar: O…kay, whatever that means…
I wish you luck.

*end talking head*

WILLIAM BLOUNT: I don't know who the hell he thinks he is!

Narrator, over WILLIAM's voice:
WILLIAM BLOUNT of North Carolina.

Blount: Bastard sails in from the
Carribean, ‘cuz of some *mockingly* scary wind and water!

N: HAMILTON is getting an ear
chewing from WILLIAM BLOUNT of North Carolina. And it's called a hurricane.

HAMILTON: You really expect your average farmer in the middle of nowhere to be informed enough to always choose the best president?

Nar: He just proposed a barrier between the people and the election of the President. A college of some sort. The electoral college.

BLOUNT: Was it not the judgement of the people to bring us all here to this room to try and figure out what to do about our messed up Constitution? You didn't doubt their wisdom then?

HAMILTON: You're a messed up Constitution.

*grumbles and groans from delegates- improvisation*

Nar: Comeback game is quite strong.

*someone yells comeback game weak under narrator*

NAR: And how do you feel about ALEXANDER HAMILTON, BLOUNT?

BLOUNT: I don’t care for being told what to do by the electoral college.

HAMILTON: All we have to do is use the number we settled on for Congress to see how many electors each state gets. *Booing and jeering from delegates* Don’t boo me, I’m right.

BLOUNT: (to delegates) No he’s not. (to Hamilton) What we need is to trust the will of the people, since that is what it means to be a true democracy.

HAMILTON, increasingly frustrated: No, no no, you're not listening. What if the people choose an immoral, uneducated, or unprepared candidate who would lead this country off a cliff?

BLOUNT, incredulously: If we're lucky enough, maybe we'll elect a man who's all three.


PINCKNEY: Guys—let's compromise!

NAR: And why are you so eager to offer solutions?

PINCKNEY: I just want to see a real nice country come together. And if compromises are the way to do it, then why not?

BLOUNT: Yes, because the last Compromise went so smoothly.

NAR: Ouch.

PINCKNEY: I hate BLOUNT. He is very mean to me, and I don't like it.

NAR: Welcome to America.

BLOUNT: Electoral college? More like a safety school!

*gasps from delegates, a nice, crisp WORLDSTAR*

HAMILTON: You Yankee. *silence, unsettling shuffle of feet and pens… quills…*

Brearley: Is… is this the opposite of a filibuster?

NAR: Silence? I could live with that.

NAR: 3 whole minutes of silence passed, and I discovered I couldn't live with that. Luckily, neither could they.



HAMILTON: Tell Blount I'm going to run a vote and he's going to have to put up with it, and that he's a coward.


BLOUNT: I heard. Your Excellency-


BLOUNT: Tell HAMILTON I'll rest my case as long as he agrees to never look in my direction for as long as he lives.

NAR: It won't be too long.

FRANKLIN: Are you boys done?
Because I'm about ready to secede from this room. Have we come to a decision?

believe the electoral college is an integral part of democracy and we would be dunces to let this idea slip between our fingers.

BLOUNT: Hey, wait a-

FRANKLIN: Hope this doesn’t backfire. All those in favor of an electoral college?

*various ayes and nays, one particularly bitter aye from BLOUNT*

FRANKLIN: Oh goodie! I pronounce this Convention- convened! Go forth and be merry.


*chatter and background noise*

NAR: If you had one word to describe this experience, from May to August, what would it be?

HAMILTON: Fulfilling.

BLOUNT: Pathetic.

STRONG: Spicy.

WASHINGTON: Complicated.

MADISON: Exciting.

PATTERSON: Insulting.

MARTIN: Brief.

LANGDON: Mediocre.

BEDFORD, JR: Satisfying.



ELSWORTH: Disrespectful.

SHERMAN: Cooperative.

PINCKNEY: Stressful.

HOUSTON: Boring.

BREARLEY: *beat* Unconventional.

NAR: Unconventional.

BREARLEY: See, men from div-

NAR: No, thank you, Brearley.







Made possible in part by the Corporation for Public Broadcasting.

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This podcast is a production of New Hampshire Public Radio.

The Draft

Do you believe in the power of an informed citizenry? Click this link to support Civics 101 today:

When you hear 'the draft' you might think about the Vietnam War... but the history of compulsory military service goes all the way back to before the Constitution was written. In this episode, we start from the beginning: How did conscription change over the years? When was the first national draft law? Who was most likely to be drafted? And the big one: Will the draft ever come back?

Answering those questions and more is Jennifer Mittelstadt: professor of history at Rutgers and the Harold K. Johnson Chair of Miltary History at The U.S. Army War College. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Draft Announcer: [00:00:19] September 14th. September 14th, 0 0 1.

Nick : [00:00:21] I'm Nick Capodice.

Hannah: [00:00:22] And I'm Hannah McCarthy.

Nick : [00:00:23] And this is Civics 101, the podcast refresher course on the basics of how democracy works.

Hannah: [00:00:27] And today's episode is:

Nick : [00:00:29] The draft

Hannah: [00:00:30] The draft.

Draft Announcer: [00:00:30] April 24. April 24 is 0 0 2.

Hannah: [00:00:37] What dp we want to know about the draft?

Nick : [00:00:39] I want to know when it started and when it stopped. And what can cause it possibly to reinstate it again.

Hannah: [00:00:44] Yeah and I want to know how you can get out of it if you can't get out of it.

Draft Announcer: [00:00:48] December 30th 0 0 3.

Nick : [00:00:53] Who can say it starts up again? Who can start up the old draft engine again?

Hannah: [00:00:57] Oh yeah, and does it have to be the president?

Nick : [00:00:59] And if we do start it again will women be included?

Hannah: [00:01:04] That's a good question.

Hannah: [00:01:08] So to learn more about the draft we got in touch with Jennifer Mittelstadt, she's a professor of history at Rutgers and the Harold K. Johnson chair of Military History at the U.S. Army War College.

Nick : [00:01:19] And you know what we learned?

Jennifer Mittelstadt: [00:01:20] Yeah I actually I have a chair. They actually gave me a chair, like an engraved chair.

Hannah: [00:01:26] All right so let's get started.

Nick : [00:01:27] So when I turned 18 I did what all males living in the U.S. have to do and this is native born, immigrant, documented and undocumented, which is I went and signed up for the Selective Service. Can you tell me what I did?

Jennifer Mittelstadt: [00:01:41] Yes I can tell you what you did.

Nick : [00:01:44] Ok Good.

Jennifer Mittelstadt: [00:01:44] That it's actually the product of a law passed in 1980 by President Jimmy Carter and the Congress, which sort of reinstituted the Selective Service after the suspension of the draft in 1973. And what that asks young men in the United States 18 to 25 to do is to upon reaching age 18 sign up for the Selective Service. And we do not currently have an active draft but with the Selective Service Act of 1980 does it make sure that there is a plan in case there is a need for a large mobilization that the U.S. government knows where those 18 to 25 year old males are, that they are signed up and they can be mobilized in case of an emergency.

Nick : [00:02:28] OK. And I have so many questions about how we got here. And I have questions about words like conscientious objection, the draft lottery, draft cards, what it means when someone's number comes up. And in my mind those are all tied to the Vietnam War. But to get there I guess you might make sense to take us from the beginning of the draft in America. Could you do that?

Jennifer Mittelstadt: [00:02:49] There's always been some form of compulsory military service even if you go back all the way to the settlement of Jamestown and the Plymouth Colony, eligible able bodied males were required to perform some kind of military service if necessary and they were required to train for that as well. What happens during the Revolutionary War is that for the very first time, with a Declaration of Independence Americans are forced to consider what compulsory military service might mean in the context of a new nation.

[00:03:22] What are the obligations of citizens not sort of to their local fellow citizens. But what does it mean to the nation. And it won't be until the civil war that we really see a national draft law.

Hannah: [00:03:37] What were the compelling factors. I mean I'm presuming simply not enough men to fight. But what did that look like? Why did they make that decision?

Jennifer Mittelstadt: [00:03:46] Well that's right. As a military leader one of the things that you have to think about is how can I best win this conflict and of course having a fully staffed, fully manned army is one important consideration. So in 1862 in the Confederacy they instituted a draft and in 1863 Lincoln did in the north, they were wildly unpopular however.

Nick : [00:04:11] On both sides or just the...?

[00:04:13] On both sides they were wildly unpopular. They were unpopular in the Confederacy and the union for some of the same reasons. And this brings us to one of the other major questions besides what do citizens owe their government that surrounds the draft and that question really is is the draft fair. And so in both the Confederacy and the union in the 1860s you were permitted to buy your way out or purchase a substitute. And much of the fighting fell to those and we might think of as sort of the lower sort. That might have been the term at the time will be today might think of as the working classes agricultural classes...

Nick : [00:04:54] And foreign born as well right?

Jennifer Mittelstadt: [00:04:57] Yes there are still even today being foreign born does not preclude you from military service. Indeed the draft riots which were which took place in New York City in 1863 were some of the most violent episodes in the history of the draft. And there you were actually looking at foreign born Irish and German immigrants to the city whose sentiments against the war and actually against African-Americans had been stoked since 1859 1860 by anti war Democrats in the city when the draft law was passed in 1863 they erupted in riots both against the draft officers but also against African-Americans across the city.

Hannah: [00:05:38] So when people were buying themselves out of the Civil War was it considered at the time unpatriotic to get yourself out of the draft?

Jennifer Mittelstadt: [00:05:46] It was not. I mean if you recall with the founding of the nation only propertied white men were able to vote for many years and it wasn't until the Jacksonian era that the vote was sort of spread out to non property holding white men. So allowing for that out wasn't necessarily considered at that time to be unpatriotic but it was resented by though it was resented nevertheless by by the working and lower classes.

Nick : [00:06:16] So how did things change in World War One, The War To End All Wars?

Jennifer Mittelstadt: [00:06:20] World War One is really when the modern national draft takes form. So in 1917 Woodrow Wilson reluctantly passes what we will call the 1917 Selective Service Act and there are a few things to note about that. So first of all the world draft, the word conscription, the word compulsory, is nowhere really in the title or description and that's by design. The Selective Service Act is meant to sort of bring a national draft but avoid as much political controversy as possible. So what happens, that means there are no more substitutions an d buyouts allowed.

[00:07:03] It means that there will not be the national government or the military making the decisions about who's in and who's out but rather those decisions about who will be drafted or deferred to 4000 local Selective Service boards. So they're looking for men who are of what we would think of as sort of sort of prime fighting age. They are trying to avoid married men. These people need to be able to meet basic health requirements they can't be too sick they can't be disabled they also can't be criminals.

Nick : [00:07:40] But it sounds like it sounds like a mess Jennifer, 4000 different draft boards? Like how on earth can you police that there's fairness going on and each one of these?

Jennifer Mittelstadt: [00:07:48] That's a really good question and I don't know how except for that the members of the board are sworn to uphold the standards of the of the National Selective Service Act. But I think you might be right to wonder about the kind of discretion that might have operated at the local level and that might get us into the territory of people who are openly saying at the local level. I do not wish to serve. So for the very first time in 1917 the law allows for conscientious objection. That basis however is on religious or moral grounds and you have to have a very strong case for it. It can't be on political grounds. It can't be on philosophical grounds.

[00:08:33] So I think there are cases that we could look at at the local level where someone might have presented themselves in one locale and said I object to this war and the local board may have allowed for an exemption on the basis of conscientious objection. That may not have been allowed in another local board.

Hannah: [00:08:54] So were things looking approximately the same come World War II? Was the draft looking the same were these conscientious conscientious objectors looking the same?

Jennifer Mittelstadt: [00:09:03] Yes that law was looking very much the same. But what's really interesting about World War II is that the scope of the mobilization. I mean just the vast need to bring people into military service very very quickly makes that period of time probably the period in which the draft operated in its most fair manner. In fact in which military service operated in its most representative manner... So one thing you might do is just look at the numbers. World War 1 didn't require the same mobilization the Selective Service Act eventually mobilized around 3 million people in World War 1. Well in World War II, 16 million. Of those 16 million 10 million were purely drafted.

Hannah: [00:09:54] Are you saying that that's what made it fair? That there were just fewer conversations about well this guy gets and this guy doesn't get it it's sort of like y'all got to go?

Jennifer Mittelstadt: [00:10:03] Yes. You just couldn't use as much discretion to maybe let out you know the nice kid who was already in college or the kid who is about to take over the family business. Most people were pressed as far as they could into military service because there wasn't the leeway to allow them out./.

Nick : [00:10:24] Who orders the draft? Is it the president, is it the president with the Congress who makes that decision?

Jennifer Mittelstadt: [00:10:29] It's the president with the approval of Congress. Who initiated the Selective Service Act.

Hannah: [00:10:35] Okay this is probably a good time to take a quick break. Civics 101 we'll be right back.

Hannah: [00:10:40] Welcome back to Civics 101. Today we're talking about the draft with Jennifer Mittelstadt.

Nick : [00:11:00] So we started this episode by going back to the beginning of American history and the draft. So let's talk about the era that most people probably associate with the draft. My father was drafted went to Vietnam, Hannah's uncle was drafted to Vietnam. How did the draft operate during the Vietnam War?

Jennifer Mittelstadt: [00:11:17] So the Vietnam draft is the product of the reinstitution of the draft. It went away for a brief year from 1947 at the end of World War II to 1948 when the U.S. decides to reinstitute it because of the advent of the Cold War and concerns that the U.S. might have to mobilize for another war. So during that period the U.S. does need a large standing army but not nearly as large as what it needed in World War II. So the Selective Service Act actually starts to encompass these provisos and limitations on who will actually be drafted and who won't. So it's saying for example if you're in college and you're on your way to becoming an educated citizen who can then go into the workforce or go into education and helped protect national security through educating children well then you might be exempt from the draft. So when the Vietnam war expands during late 1964 and especially 1965, those sort of channeling programs have actually made it so that the people who are most likely to be drafted by that time are those who are not in college.

[00:12:36] Those who have high school diplomas in fact those who are working. Working class jobs. And so that period of the draft in the beginning the first three years of the Vietnam War actually witnesses the kind of reintroduction of a less fair basis of selective service. So in 1968 this all comes to a head. And of course that's an election year. And every single candidate running for office that year comes out in opposition to the draft and as a result what you see upon the eventual election of Richard Nixon in 1968 those exemptions start to fall away and the U.S. turns instead to a basic lottery. You cannot be exempted based on your education based on whether or not you're married. The Vietnam draft really does reach out to those beyond the working class and into the middle classes.

Nick : [00:13:43] Wow. So it seems that in this unpopular war and this unpopular idea of a draft in 1969 we kind of get to the most fair so far?

Jennifer Mittelstadt: [00:13:51] Well I think World War II if we look at the demographics still stands ultimately as the most representative period. But after 1969 with the institution of the lottery those inequities in the overrepresentation of African-Americans and the sort of gross overrepresentation of working class Americans are largely eliminated. Interestingly enough though once the white middle classes realized that they really will not be exempted from this. This is when the serious pressure to end the war is amped up and the war is brought to a close. So it is precisely the thing that makes the draft fairer that makes the war more unpopular than it ever was.

Nick : [00:14:41] Can you tell me about that 1969 lottery? I Remember something was on live TV. How did that work?

Jennifer Mittelstadt: [00:14:47] What they did was more or less pick out of a... I guess it wasn't a hat. I guess it was um...

Nick : [00:14:55] A glass jar, I saw a video of video of blue easter eggs in a glass jar, 366 easter eggs.

Jennifer Mittelstadt: [00:15:02] Little blue balls. Right. And you know much the same way what we now think of of you know money lottery. Right.

Nick : [00:15:12] Or Bingo, yeah.

Jennifer Mittelstadt: [00:15:13] Bingo. Right. They reached in and they picked out a ball and that ball had a date on it. So when someone said their number was up what they meant was either that their birthday had actually been chosen on that initial blue ball or that their birthday was very close to that. And so going in chronological order their birth date would be one of the next ones that would be called in order to fulfill that particular draft need at that particular time.

Nick : [00:15:46] So I'm picturing a truck going to Fort Bragg and everybody's on got the same birthday. Isn't that strange? Think about it.

Jennifer Mittelstadt: [00:15:53] I guess, I guess that might be right.

Hannah: [00:15:57] So where are we today in terms of the draft. As Nick said when he turned 18 he had to register for selective service. Is it lying dormant right now? And what would it take to bring it back?

Jennifer Mittelstadt: [00:16:09] Well the unpopularity of the draft during Vietnam is one of the things that led to the end of the draft in 1973. So Richard Nixon upon election not only sort of gets rid of the exemptions and switches over to a lottery but he also puts the U.S. on the path toward the end of conscription. He creates a commission on what he will call the all volunteer force. And what that commission argues is that a draft force is antithetical to concepts of us liberty and it will be eliminated. And from that point on the U.S. will staff its military fully through recruitment and voluntary enlistments. And so since 1973 that is in fact what the U.S. has had. It was that 1980 law that Jimmy Carter put in place that reinstituted as a backup as a sort of safeguard the selective service in a sort of just in case mode. But at the same time that has never been activated. So Nick might have registered but Nick and no one like him who's registered has ever been called into service since then.

Hannah: [00:17:28] Is there any chance that women would have to be a part of the draft in the future if we entered another huge war?

Jennifer Mittelstadt: [00:17:35] So because the combat exemption has been lifted for women it is likely that women in the not too distant future will be required to register for selective service. Indeed before Trump was elected there was a bill working its way through Congress that was going to require women to do just that. After Trump's election that was pulled. But I believe that there are people who have tried reintroducing it since then and it's an open question as to what will happen.

Nick : [00:18:08] Do you think the draft could ever happen again in America?

Jennifer Mittelstadt: [00:18:12] Well I think historians are really bad predictors of the future. So I'm I'm really not sure what will happen but I would not put it outside of the realm of possibility. If you think back to the beginning of the nation and you think about that debate that sort of went on about whether or not compulsory military service was sort of I guess the essence of citizenship something that in a free society you owe to your country or whether or not it's the kind of opposite and compulsory military service is this sort of tyrannical imposition against the liberty of free citizens. I think for many Americans the switch to the all volunteer force sort of settled that question and the answer was You don't owe anything and there are people who will volunteer. But I think in fact those who are still thinking about national service whether in the military or in the military and in other places are sort of still asking that question saying that perhaps you know one measure of citizenship is the degree to which you serve fellow citizens and the nation itself.

Hannah: [00:19:26] That was Jennifer Mittelstadt a professor of history at Rutgers and the Harold K. Johnson chair of military history at the U.S. Army War College.

Nick : [00:19:34] If you haven't gotten a chance to watch the video of the Vietnam lottery you should. It's pretty wild. It's got some blue easter eggs. We'll post a link in the show notes and at our website Civic's 101 podcast dot org. This episode was produced by Taylor Quimby our executive producer is Eric Janik Our staff includes Jimmy Gutierrez, Justine Paradis, and Jacqui Helbert. Music in this episode by Sara Alfonso and Silicon Transmitter. Civics 101 is a production of new Hampshire Public Radio.



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