Primaries and Caucuses

It's one of the most democratic aspects of our nation, not to mention extremely recent. In this episode we explore the snarled history of how we select party nominees; from delegates to superdelegates, and from gymnasiums in Iowa to booths in New Hampshire.

This episode features political scientists Bruce Stinebrickner (DePauw University) and Alvin Tillery (Northwestern University), NPR's Domenico Montanarro, Iowa Public Radio's Kate Payne, and Lauren Chooljian from NHPR.

Also, Brady Carlson takes us through the least-suspenseful election in the history of the United States.

Episode Segments

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TRANSCRIPT

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

Civics 101

Primaries and Caucuses

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

Nick Capodice: [00:00:04] Let me run a little thought experiment by you.

Hannah McCarthy: [00:00:08] Alright, run it on by

Nick Capodice: [00:00:08] This one comes from Bruce Stinebrickner.

Bruce Stinebrickner: [00:00:10] I'm Bruce Stinebrickner, I'm a professor of political science at DePauw University.

Nick Capodice: [00:00:15] He told me to imagine it's the first game in the World Series.

Bruce Stinebrickner: [00:00:18] And there's going to be, let's assume it's going to be the Yankees, which is often the case with respect to the American League.

[00:00:25] Derek Jeter!(clap clap clapclapclap)

Bruce Stinebrickner: [00:00:25] And let's assume they're going to be playing the Dodgers. So it's an old Yankees Dodgers World Series.

Hannah McCarthy: [00:00:33] Ah the old Yankee Dodgers World Series.

Bruce Stinebrickner: [00:00:36] I don't think the Yankees organization,  New York Yankees, are going to hold a vote among all the Yankee fans in the country to decide who's going to be the starting pitcher for the first game. And they chose Nick. They chose you. That would be ludicrous. And yet that is the analogy of what gets done in the presidential selection, nomination process.

Nick Capodice: [00:01:04] I'm Nick Capodice, the worst pitcher in the world.

Hannah McCarthy: [00:01:06] I'm Hannah McCarthy, and I'm slightly better at it.

Nick Capodice: [00:01:08] And today on Civics 101 in our presidential election series, we're talking about primaries and caucuses. The elections before the elections. The unique way we choose nominees. Yes, it may be ludicrous for baseball, but in politics, it's called democracy. So first off, when you choose a candidate's name in a primary or caucus, you're not technically voting for that candidate.

Domenico Montanaro: [00:01:35] Well, when it comes to a primary process, you're actually voting for a delegate. I'm Domenico Montanaro. I'm senior political editor and correspondent at NPR.

Nick Capodice: [00:01:45] And those delegates, about 4700 for the Democratic Party and 2400 for the Republican Party, they go to the convention and that's where they pick the official nominee.

Hannah McCarthy: [00:01:55] And the person that the delegates vote for at the convention, it's who the public voted for.

Domenico Montanaro: [00:02:00] It's based on the public's vote, but they're actually not required to be fixed to the public vote. Some places do require some of them to be fixed. So if somebody and oftentimes they wind up being that way anyway, because the candidates submit a slate of delegates. In other words, they submit the names of the people who they would want to be at the convention for them. And they do that to guarantee that those people don't wig out on them and, you know, go in and vote for somebody else.

Nick Capodice: [00:02:33] Most of the delegates are called pledged delegates who will on the first ballot at the convention vote for the candidate that picked them. But the Democratic Party has this fun thing called superdelegates. There's about 700 of them.

Domenico Montanaro: [00:02:48] A superdelegate is an elected leader or party official who gets a vote in this process. The Democratic National Committee has selected who those people would be. So if you're a member of Congress, you're a senator or governor. And also, they have these sort of higher level superdelegates who are former elected officials and dignitaries like former President Bill Clinton, for example. He would get a vote. Jimmy Carter. He gets a vote.

Hannah McCarthy: [00:03:17] So the Republicans don't have superdelegate.

Nick Capodice: [00:03:19] They do not. Hannah, I know you're gonna go into conventions in great detail in your episode, but just for a bare understanding, the delegates all vote at conventions. Whoever has a 51 percent majority gets the nomination. If there isn't a 51 percent majority, then they have to have a second ballot. The 2020 election is gonna be the first time that superdelegates do not get to vote on that first ballot.

Domenico Montanaro: [00:03:40] Their votes, however, would count on a second ballot. That could make things very, very dicey and interesting when it comes to a floor fight at the convention. If it comes to that.

Hannah McCarthy: [00:03:50] Ok. That is what we're choosing in a primary or caucus. But what is the difference between the two?

Nick Capodice: [00:03:56] OK. Here's Bruce again.

Bruce Stinebrickner: [00:03:58] So you're very question wants me to distinguish between caucuses and primaries as two different instruments in the nomination process. And that's fine. I can do that and I will. But the bigger point is, by world standards, either caucuses such as which occur in Nevada or Iowa or primaries which occur in New Hampshire and California in New York. Either of those is simply a remarkable political phenomenon.

Nick Capodice: [00:04:25] And he did explain the difference, but he wanted to make something very clear to me at first.

Bruce Stinebrickner: [00:04:30] But don't. But don't ignore it. Don't ignore my friend. How unique either is if you introduced the most restrictive caucus system that's used in the United States in one of these 10 states, if you move that to Britain or Canada or Japan or India, other functioning democracies, it would be a democratic revolution.

Hannah McCarthy: [00:04:51] Why?

Nick Capodice: [00:04:52] Because nobody else does it this way. Primaries have been proposed in some countries and some positions around the world are subject to primaries, but not president or prime minister and almost nobody else caucuses.

Hannah McCarthy: [00:05:05] So why do we? Is this just the way that we've always done it?

Nick Capodice: [00:05:08] No. This is a relatively new phenomenon in America. The way things used to be, Party elites selected our nominees for president. Yes, regular voters choose who's going to actually be president, but they couldn't choose who would be on the ballot in the first place. And at this time, we have to mention our old standby, the early part of the 20th century, the progressive era. I mean, we're talking progressive politics. You know where we're going, right Hannah?

Hannah McCarthy: [00:05:37] Take me to the Badger State.

Nick Capodice: [00:05:38] You got it. Always with the Wisconsin! In Wisconsin in the early nineteen hundreds corrupt party bosses were, they were picking all the local candidates. And so reform-minded progressive politicians start to pass legislation that the people should have a say in the nominees. And as we know, states are laboratories of democracy. Florida starts to have its first. Primary in 1901. Wisconsin has a primary in 1905. And by the 1960s, we got 14 states who have primaries. And while those primaries gave momentum and public support for candidates, by and large, the party still picked the nominee.

Nick Capodice: [00:06:19] But then we get to 1968.

Lauren Chooljian: [00:06:28] In 1968, the Democratic Party changed the rules, you know about this?

Nick Capodice: [00:06:33] You do know about this.

Hannah McCarthy: [00:06:34] I do know about this.

Nick Capodice: [00:06:35] What was going on in 1968?

Lauren Chooljian: [00:06:39] Vietnam.

Nick Capodice: [00:06:41] This is Lauren Chooljian. She's an NHPR reporter and she's a co-host of the podcast Stranglehold.

Lauren Chooljian: [00:06:46] Democrats had nominated somebody who didn't perform as well in the primaries.

Nick Capodice: [00:06:53] That somebody who won the Democratic nomination was Hubert Humphrey by the way. Humphrey did not win a single primary. He got 2 percent of the national primary vote. He had just focused his campaign on states that didn't have primaries and he won the nomination.

Lauren Chooljian: [00:07:08] And of course, there are a lot of things. I mean, Robert Kennedy got killed doing this. I mean, there's a lot going on. Basically, what happened was in after the 68 convention, Democrats were like party bosses have run this game for a long time. It was party bosses who up until 68 chose the nominees, even if they performed well in the primary, the party bosses could say, "eh"  do whatever they need to do, like strong arm people to make that happen. Well, in 68, as you may have known, a lot of  people protest in Chicago, the DNC in Chicago, because they're angry. They're angry with government. They're fed up.

Nick Capodice: [00:07:50] And protests were happening outside of the convention, but there was chaos inside. There was fighting amongst delegates. Dan Rather got punched in the stomach.

Lauren Chooljian: [00:08:08] And so the Democratic Party was like, OK, we cannot have middle aged, middle class white men determine who picks our nominee for president. The real people out there need to have more of a say. So that switch was huge. And then the Republicans that would, the Republicans then go along with this rule change as well, I should say. And that is why we have people like Jimmy Carter in 1976,.

[00:08:33] The Democratic nominee for president of the United States.

Lauren Chooljian: [00:08:37] Who had no clout, no connections to party bosses, was like hardly known by anybody. He was like just the governor of Georgia at this time. He like was involved a little bit in national politics, but not a lot.

Nick Capodice: [00:08:47] And Carter goes on to campaign like crazy in Iowa. New Hampshire sweeps them both in 1976 and becomes president.

[00:08:53] We went out early and not many people cared who I was. We had to shake hands with everybody at the Portsmouth shipyard. And everybody that came, I had to explain who I was and what I was running for.

Hannah McCarthy: [00:09:07] All right. So primaries and caucuses have been around for a while, but they didn't really mean much until recently.

Nick Capodice: [00:09:14] Yeah, and now the difference. Here's Bruce Stinebrickner again.

Bruce Stinebrickner: [00:09:18] Caucuses. Caucuses are different from primaries in that primaries are state government run elections. The state government of New Hampshire runs the New Hampshire primary. The state government of California runs the California primary. Caucuses, such as in Iowa, Nevada. Those caucuses are run by the party organizations of the states. So they are not official government elections.

Hannah McCarthy: [00:09:49] We have a primary here in New Hampshire.

Nick Capodice: [00:09:50] We do. We have a very special one which we are gonna get to

Hannah McCarthy: [00:09:53] How many states do primaries or caucuses?

Nick Capodice: [00:09:57] Hoo! Not only are the rules and methods different in every state. There's no federal law about primaries and caucuses. The rules can change every election. In 2016, 14 percent of pledged delegates came from caucuses, but in 2020, it's going to be around 5 percent.

Hannah McCarthy: [00:10:13] Why are states dropping caucusing?

Nick Capodice: [00:10:15] Because caucuses, frankly, take a lot more work than a primary for the party and for the voters. We're now down to only six states who do caucuses. You must you just simply must look up how your state runs its primary or caucus. Some states only let you vote in the caucus if you're registered as being affiliated with the party. Some states don't. Some states have same day registration. Some states take you off the rolls if you haven't voted in a certain amount of years. You just gotta look it up.

Hannah McCarthy: [00:10:40] I think I got it. Caucuses are run by parties in a state, primaries by the state government. They both choose delegates for the convention. And every state is different.

Nick Capodice: [00:10:54] You got it.

Hannah McCarthy: [00:10:55] But what actually happens in a caucus?

Nick Capodice: [00:10:57] Ok, for this one, let's go to the first nomination contest in the country.

[00:11:04] People, if you choose to try to find one more person caucus and we allow more time.

Kate Payne: [00:11:12] Something I didn't really anticipate or fully understand until I came up here was how fraught the process can be for some people, like some Iowans really just don't like having to be yelled at when they're trying to vote.

Nick Capodice: [00:11:36] This is Kate Payne. She works for Iowa Public Radio and she's the co-host of the podcast Caucusland. A caucus is not filling out a bubble in a voting booth. A caucus is held in a school or a library or meeting hall. All across the state. And they take hours. And big surprise, the Republicans and the Democrats do them completely differently.

Kate Payne: [00:11:56] So for the Republicans, they use a secret ballot. So sort of writing down a candidate's name on a piece of paper or tossing it into a hat kind of idea. So surrogates will get up, defend their candidate folks, write down their names. Democratic caucuses are where a lot of back and forth and the political tug of war happens. So folks have seen, you know, those videos of dozens or hundreds of people yelling at each other in an Iowa gymnasium somewhere.

[00:12:28] What are you doing to make sure you invited people come over to John Edwards? People I know. I'm going to talk to each one of these candidates. John Edwards is the right man for president. We're going to get them over. Clinton supporters? Oh, yeah. What are you doing to make sure the Biden people come over? Kidnap most of them. You know what? A lot of times chloroform works, when you knock em out and drag em over...

Kate Payne: [00:12:48] That is a Democratic caucus. So at a Democratic caucus, the candidates surrogates will get up, defend their choice, and then it's up to all of those individuals in the room to then choose their candidate physically stand, you know, and some corner of the room with their candidate's supporters.

Hannah McCarthy: [00:13:11] So they're standing in corners of the room. But how do they winnow down the field?

Kate Payne: [00:13:17] So each candidate has to get at least 15 percent of all of the folks in the room. If they don't, then those supporters have to realign. They have to choose a different candidate.

Nick Capodice: [00:13:29] And Kate told me that is the beauty and the horror of the Democratic caucus. You're not hiding behind a secret ballot. You're taking a literal stand.

Kate Payne: [00:13:39] Individual Iowans defending their choice to other supporters. Sometimes their, you know, family, friends and neighbors defending their choice and trying to get other people to come over to their side. So that's that back and forth, hashing out argumentation about which candidate is better prepared, what are their policies, really? It's that interaction that is essential to the caucuses.

Nick Capodice: [00:14:16] And then eight days later, we drive into our own home state for the New Hampshire primary, which, according to the state law of New Hampshire is, "the first contest of its kind." This is what Stranglehold the show that Lauren hosts with Jack Rodolico, this is their rockin theme song, by the way, is all about. New Hampshire being first in the nation.

Lauren Chooljian: [00:14:39] FITN is like a hashtag and a lifestyle around here for like the political class.

Nick Capodice: [00:14:43] If you live in New Hampshire, you can physically shake the hand of just about every single presidential candidate because the New Hampshire primary gets so much press.

Lauren Chooljian: [00:14:53] Now, this is seems crazy, but New Hampshire has a very low number of delegates, so each should not rationally get the amount of coverage and media presence that it gets for its contests, because in the grand scheme of things, the amount of delegates that are coming for New Hampshire versus the amount of delegates in California, Texas. It's like not even comparable. However, because we are first Iowa's the first caucus, but because we are the first primary, Iowa and New Hampshire get an incredible amount of media attention. That then makes it seem like they get all this momentum going into the rest of them. And it makes it seem like we are much more important than many of the other states because it's the first real chance that candidates are going in front of real voters. And it's the first time we, as Americans are saying, oh, this is what our neighbors in these states are thinking. But the reason why New Hampshire is like, yeah, we're first, even though Iowa is the first contest, is because we're the first time people are actually going into a voting booth and making it a choice.

Hannah McCarthy: [00:15:50] Okay. So now I have to ask, I know Iowa and New Hampshire are first, but what does that actually affect? You know, how often does it determine the nominee?

Nick Capodice: [00:16:02] Since about 1960 New Hampshire has picked the nominee for the Republicans in all but three elections, Democrats much less often. But Lauren told me that a win in New Hampshire or in Iowa can be a fast track to the White House. And she gave me the example of Bernie Sanders in 2016, who won in New Hampshire. And without that win, he might not have lasted as long as he did in that campaign. And this is all because we are first.

Alvin Tillery: [00:16:30] Ah yes. The first mover advantage.

Nick Capodice: [00:16:34] This is Alvin Tillery. He's a political science professor at Northwestern University.

Alvin Tillery: [00:16:38] So they are. They are the first two states in the the nominating system, and they have a ton of power to shape the way in which subsequent states consider who's a viable candidate. And so that's why they're so important. Some people say that the dilemma with Iowa and New Hampshire is that their populations, you know, don't mirror the the nation.

Nick Capodice: [00:17:06] And when Alvin says Mirror of the nation, he's referencing the fact that Iowa is the sixth whitest state in the union. New Hampshire is the fourth. And while the United States is about 60 percent white, those two states are about 90 percent. Which brings us to this question.

Alvin Tillery: [00:17:25] If you lose in Iowa and New Hampshire, I don't know, for racial or gender reasons. Will the national media proclaim you a loser before you get to a place like South Carolina or California where you're much more likely to find support? And so, you know, there's been a debate about whether or not those two states should remain should keep their their their order.

Hannah McCarthy: [00:17:52] So why do we keep doing it this way? Why can't we have a national vote?

Nick Capodice: [00:17:57] That's exactly what I asked Lauren.

Lauren Chooljian: [00:17:58] Because New Hampshire and Iowa won't give it up, dude.

Nick Capodice: [00:18:03] Honestly, I can't. You just can't. Can't everyone agree that this is not truly a Democratic process?

Lauren Chooljian: [00:18:08] No, they can't agree. Which is what what I just explained to you. They like people in New Hampshire, like we want to be first, Iowa people want to be first. They don't want that. You know why they don't want that, for the most part is because a lot of people believe the nationalized primary then just becomes a TV primary. Then you don't have to, as a candidate, go and face voters, you know, one on one and be like, what's your question about like, what's your big issue like? Oh, it's health care. Let me give you my plan. Oh, you want Medicare for all? Well, here's why I do or don't believe in that. Or like you don't like Obamacare? Well, neither do I. Like those. You know, they're not. This is per the argument of these people who believe that a national primary would be bad. Their argument is like, then it's not real. Then it's not...then the real people don't really have as much power because then this campaign is going to be held in, you know, airports where they're like, I'm here in Nevada, but I'm not really I'm just like stepping off an airplane then I'll fly somewhere else, or it's it's, the campaign is done in commercials, you know, and then it becomes a cost thing. And then, you know, somebody who can't raise a lot of money doesn't even have a shot because they can't pay for the major ad markets in California or whatever.

Hannah McCarthy: [00:19:06] I can't forget Bruce's insistence that this is the most small 'd' Democratic nominating process in the world. But it seems like New Hampshire and Iowa just have a lot of power. Has anyone floated potential alternatives to this.

Nick Capodice: [00:19:23] A few things have been floated, like everybody has the primary on the same day, but also maybe doing a rotating first in the nation primary. So like every four years, there's a different set of states that goes first. And while that doesn't have a ton of momentum to change right now, there are some things changing about how we do primaries and caucuses. We can just opt to not do them at all.

[00:19:50] That's President Trump discussing his Republican challengers for president just moments ago. Several states are canceling their GOP primary elections and Kansas is one of them. The president says he had nothing to do with that.

Nick Capodice: [00:20:02] As of this moment, four states have canceled their GOP primaries. There's probably more to come. All those delegates will automatically be pledged to Donald Trump. And this is not unprecedented. In 2012, the DNC canceled 12 primaries during Barack Obama's re-election. But one difference is that in 2012, there weren't any serious significant challengers to Obama. And Domenico Montanaro said that this year there are.

Domenico Montanaro: [00:20:26] And that's a big reason why they're canceling primaries. They don't want to embarrass President Trump if there winds up being a significant chunk of the vote that goes to somebody else, like a Mark Sanford, the former governor of South Carolina. They don't want to have that kind of embarrassment, that media storyline, and eventually potentially hurt the president's chances of re-election.

Nick Capodice: [00:20:54] Before we go. Brady Carlson, author of the fantastic book Dead Presidents, is going to take us through one of his favorite presidential elections in U.S. history. What do we got today, Brady?

Brady Carlson: [00:21:04] Today, we're looking at the election of 1820, which at least on its face, was one of the most predictable and least suspenseful elections in American history. Here's the short version. James Monroe runs for re-election unopposed and wins.

Nick Capodice: [00:21:21] Nobody? Nobody opposed him. Just one candidate on the ballot.

Brady Carlson: [00:21:25] Just that one.

Nick Capodice: [00:21:26] Just for the.... You gotta put somebody up there, you know, just for appearances.

Brady Carlson: [00:21:30] You'd think, right. But this seemingly dull rubber stamp of an election actually has a lot more to it than it seems at first glance. So when I was reading president books as a kid, the way I understood 1820 was that James Monroe was just so popular that the country began what is sometimes called the era of good feelings. And so they re-elected him nearly unanimously in the Electoral College, nearly unanimously because one elector cast his vote elsewhere so that George Washington could have the singular honor of being the only president elected unanimously. Here's, though, how it actually played out.

Brady Carlson: [00:22:08] James Monroe was president at a time when the early American political parties were dying out. There were the Federalists who wanted a stronger federal government like the second president, John Adams, and Alexander Hamilton of musical fame. They were opposed by the anti federalists who were mostly also called Republicans in their time and are known best today as Democratic Republicans.

Nick Capodice: [00:22:30] Terrible branding, first of all.

Brady Carlson: [00:22:32] Yeah, agreed.

Nick Capodice: [00:22:33] I know generally where Democrats and Republicans stand on issues, specifically social issues today. But what were those two big parties about?

Brady Carlson: [00:22:41] Well, very broadly, the Federalists were mostly based in the north. They represented industry and cities and they wanted stronger ties with England. The anti federalist Republicans were more southern, more rural. They wanted closer ties to France instead of England, and they were much more skeptical of the federal government. The key here was that the anti federalists had support in the most important state in the country. Virginia In the first 36 years of the U.S. presidency, a non Virginian was president for only four years. There were three Virginia presidents elected back to back. They were called the Virginia Dynasty, Thomas Jefferson, James Madison and James Monroe. The Republican Party was growing and growing. The Federalists were declining to the point that by 1820, there wasn't enough of a party left to even field a presidential candidate. So when the Electoral College met, nearly all the votes went to the only guy in the race. And in Massachusetts, one of the electors who voted for Monroe was John Adams, one of the original leaders of that opposition Federalist Party.

Nick Capodice: [00:23:43] I did not know that former presidents could be electors. Stubborn old John Adams cast his ballot for the opposition party?

1776: [00:23:51] "Will someone shut that man up? NEVERRRRR!"

Brady Carlson: [00:23:54] And you see why there's this idea that this was the era of good feelings. But was it? I mean, 1820 was the year without a contested election, but it was also the year Congress had to engineer what was called the Great Compromise to head off this growing regional tension about slavery and whether or not to expand slavery as the country was expanding. And even in the very lopsided Electoral College count, there was a hint of opposition or dissatisfaction in the air. There was the faithless elector from New Hampshire called William Plumer, a former U.S. senator and governor. And later he would be a founder of the New Hampshire Historical Society. Well, he had reservations about casting his vote for Monroe, but it wasn't because he wanted George Washington to be the only president elected unanimously. That story I'd read was not true. He wasn't a huge fan of the Monroe administration. And while he knew he wasn't going to change the outcome of the election on his own, he thought he had a plan to make his protest vote count.

Nick Capodice: [00:24:52] So let me have it. Who did he cast his protest vote for?

Brady Carlson: [00:24:57] He voted for John Quincy Adams, who was Monroe's secretary of state. And his thinking was, this is a guy who someday should be president. So he was kind of floating Adams name to the political class, kind of hinting about who they should back in the next election in 1824. And as it turned out, much of the political class did get behind Adams in that election. But by then, the idea of having a bunch of powerful elites choosing each successive president for the rest of the country was not very popular. And there was a war hero, an aspiring president out there called Andrew Jackson, who decided to launch his own populist movement to stand against the political classes. He eventually and very pointedly named that movement the Democratic Party.

Nick Capodice: [00:25:44] So this extremely boring election with only one candidate and one political party essentially leads to a complete new era of U.S. politics.

Brady Carlson: [00:25:54] Yeah it's kind of the opposite of E Pluribus Unum, you know, out of many one. In this case, it was out of one many.

Nick Capodice: [00:26:01] Brady, thank you so much.

Brady Carlson: [00:26:02] My pleasure. Thank you.

Nick Capodice: [00:26:09] That's Brady Carlson, author, host of All Things Considered on Wisconsin Public Radio. That'll just about do it for today. We'll keep coming out every two weeks as long as you keep listening. Today's episode was produced by me Nick Capodice and you Hannah McCarthy thank you.

Hannah McCarthy: [00:26:24] Our staff includes Ben Henry and Jacqui Fulton. Erika Janik is our executive producer and reminder that it's pronounced Nevada, not Nevada.

Nick Capodice: [00:26:32] Maureen McMurray has no delegates, but she gets a lot of media attention.

Hannah McCarthy: [00:26:36] Music in this episode by Music in this episode by Blue Dot Sessions, Chris Zabriskie, Audio Hertz,  Meydan, Lee Rosevere, The Grand Affair and Junior85

Nick Capodice: [00:26:44] And we say it once, but we'll say it again. If you're a teacher and you ever want to use any of her shows in your classroom, drop us a line. Visit us at civics101podacst.org/info for various and sundry supports.

Hannah McCarthy: [00:26:54] Civics 101 is made possible in part by the Corporation for Public Broadcasting and is a production of NHPR.

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Made possible in part by the Corporation for Public Broadcasting.

How To Run for President

The job description is pretty sparse, the laws are convoluted and the path from A to Z seems fraught with peril. So how does a person go from candidate to nominee to Leader of the Free World? We asked some heavy hitters for the inside scoop on running for President.

Settle in for a long and strange ride with Former Governor and Democratic nominee for President, Michael Dukakis, CNN political analyst Bakari Sellers and founding partner of Purple Strategies, Mark Squier.

Episode Segments

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TRANSCRIPT

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

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

Hannah McCarthy: [00:00:11] Nick and I are a little nervous, in part because Michael Dukakis is not answering the door.

Nick Capodice: [00:00:18] Seems to be another door.

[00:00:20] Maybe this could be one of the two houses that are next to each other.

Hannah McCarthy: [00:00:26] Good morning.

Michael Dukakis: [00:00:27] Good morning.

Hannah McCarthy: [00:00:29] Michael Dukakis was governor of Massachusetts from 1975 to 1979 and then from 83 to 91.

Hannah McCarthy: [00:00:37] And in 88...

Archival: [00:00:38] It did not come as a surprise, but Michael Dukakis did make it official today, declaring his candidacy for president. Dukakis made his formal announcements and...

Hannah McCarthy: [00:00:46] He also happened to be the Democratic nominee for president of the United States.

Michael Dukakis: [00:00:51] My fellow Democrats, my fellow Americans.

Hannah McCarthy: [00:00:55] Atlanta, Georgia, July 21st, 1988.

Michael Dukakis: [00:00:58] 16 months ago, [00:01:00] when I announce my candidacy for the presidency of the United States, I said this campaign would be a marathon. Tonight with a wind at our backs, with friends at our sides and with courage in our hearts. The race to the finish line began.

[00:01:36] Did a great job on the primary, unfortunately, screwed up the final. Which was a very winnable race but didn't do the grassroots stuff and made a decision which turned out to be pretty dumb decision that I was not going to respond to the Bush attack campaign. You know, keep it positive. This that and the other thing. You want to keep it positive.

[00:01:57] But if somebody is going to hit you with stuff, you've [00:02:00] got to have a carefully thought out strategy for dealing with it.

Hannah McCarthy: [00:02:04] Governor Dukakis did not win the 1988 election. George H.W. Bush did. And yes, there were attack ads and they were pretty rough. But that that is not what we are here for today.

[00:02:20] We want to try to explain to listeners what is really, truly like to run for president. I think maybe we should start with what it takes.

[00:02:32] I mean, what kind of a person can reasonably endeavor to do it? What does it take to do it?

[00:02:41] Not sure there's a clear definition. I mean, we all have our own story. I'm a greek kid, parents came over...

Hannah McCarthy: [00:02:49] Michael Dukakis' story? He's the child of Greek immigrants, grew up in a Boston plagued by racial and religious tension. And early on, he was affected by the injustices he saw in his community. [00:03:00] He went to college, served in Korea, went to Harvard Law, and then he got himself elected to the Massachusetts House of Reps. From there, he became governor of Massachusetts.

[00:03:11] And in his third term, people started coming to him with a question. Was he interested in running for president?

Michael Dukakis: [00:03:20] And I said, look, I kind of want to enjoy this victory. At least until the end of the year. And I'll take a look at it, but it's 90 percent and I am very happy doing what I'm doing. And if I said, OK, I'm going to take three months.

Hannah McCarthy: [00:03:40] And the question Dukakis is asking himself at this point?

Michael Dukakis: [00:03:44] I mean, is it a job I can do?

Hannah McCarthy: [00:03:46] Are you ready to be leader of the free world?

Michael Dukakis: [00:03:49] First three months, I'm just going to spend time meeting with people whose judgment I respect and saying, look, is this something I really should seriously consider? [00:04:00] And I don't I don't want to. I want you to sugarcoat this thing. I mean, is it a job I can do? I was serious about it. I mean, it's kind of a pretty big assignment. You know?

Nick Capodice: [00:04:11] Now, wait.

[00:04:12] I agree. That's a very important part of the process. A very big question to answer. But how you actually get the job, how do you literally run for president?

Hannah McCarthy: [00:04:24] Luckily, Nick, that is exactly why we are here today. So let's get to it already. I'm Hannah McCarthy.

[00:04:30] I'm Nick Capodice.

Hannah McCarthy: [00:04:30] And this is Civics 101 on the presidential election.

Nick Capodice: [00:04:34] Today, the campaign, how do you run for president? How does this operation actually happen?

[00:04:39] The only job description is in the Constitution. Article 2, the executive power shall be vested in a president.

[00:04:46] But how do you know if you're really right for the job? How do you know you're supposed to do?

Hannah McCarthy: [00:04:51] I mean, aside from the constitution, we don't really have a job description.

Michael Dukakis: [00:04:55] Yeah, but if you've been in politics as long as I was, I mean, you've got a pretty good idea of what the president does and [00:05:00] it doesn't hurt to been a governor.

[00:05:02] But I can tell you that you can't be a very good president and come from Congress or the senator or some other place.

[00:05:12] But it doesn't hurt to have been responsible for managing government and picking good people, which is so important.

[00:05:22] It's this is a people business and the quality and caliber of the folks that you pick as a chief executive are just the most important thing you've got to think about. That gives you a nice kind of experience base, but it's a big job.

Hannah McCarthy: [00:05:47] It helps, obviously, to have a sense of what running things like a government really looks like. I mean, all but one president, Donald J. Trump, has had some military or government experience before running. So it's not a necessity, [00:06:00] but it is a plus.

Nick Capodice: [00:06:01] And I know there are certain requirements.

[00:06:03] You have to be a natural born U.S. citizen.

Hannah McCarthy: [00:06:06] Mhm. Which pretty much means born in the United States for the intents and purposes of a presidential election.

Nick Capodice: [00:06:11] And you have to have been living in the United States for at least 14 years.

Hannah McCarthy: [00:06:14] No recent expats, sir.

Nick Capodice: [00:06:16] And you got to be 35 years old.

Hannah McCarthy: [00:06:17] I'm out, you're in.

Nick Capodice: [00:06:19] A gentleman never reveals his age, unless running for president.

Hannah McCarthy: [00:06:22] Next step, the Federal Election Commission says that there are a few things that you're allowed to do before you actually become a capital C candidate.

Nick Capodice: [00:06:30] Is this where the exploratory committee comes in? Bunch of people trying to figure out whether or not you're a viable candidate for the party?

Hannah McCarthy: [00:06:37] Exactly. Otherwise known as a testing the Waters Committee, you can conduct polling. You can make phone calls, travel scope out the field, even raise money under an exploratory committee. So long as you are not campaigning.

Nick Capodice: [00:06:49] A-huh.

[00:06:52] So you're basically saying you can campaign without campaigning.

Bakari Sellers: [00:06:56] The worst kept secret of anybody running for office is when they do an exploratory [00:07:00] committee. I've never I've honestly never seen watching politics my entire life. I've never seen anybody have an exploratory committee that didn't run for office.

Hannah McCarthy: [00:07:08] Bakari Sellers, folks, a beloved repeat guest and CNN political analyst. Here's the story with exploratory committees. The FEC says you can't raise more than five grand while you're sniffing around the presidency because that triggers the candidate label. But an exploratory committee gets an exemption. They don't have to file financial reports so long as the potential candidate is not an official candidate.

Nick Capodice: [00:07:32] So by exemption, you mean loophole.

Hannah McCarthy: [00:07:34] Yeah, but the second it is somehow clear to the FEC that you aren't just dipping a toe in the water. You are at risk of being called out as a candidate. This can be because you've raised way too much money.

Nick Capodice: [00:07:45] But they have no way of knowing that since you're not reporting anything.

Hannah McCarthy: [00:07:48] We're just not going to touch that one. That's Civics 606 campaign finance law. But you can also tip the FEC off by going on TV and slipping up and calling yourself a candidate [00:08:00] or making a sign that says Capodice 2020.

Nick Capodice: [00:08:04] It feels so a hazy still and unofficial.

[00:08:08] You're a candidate and you're calling yourself a candidate. This has happened for real. What's next? What's the actual thing? What's the actual thing that says, I am running for president?

Hannah McCarthy: [00:08:18] The actual thing?

Nick Capodice: [00:08:19] Yes.

Hannah McCarthy: [00:08:20] The forms. Yeah. Your forms. you have form one and form two. That's statement of organization and statement of candidacy. You can't file one without the other. You've got the committee that's trying to elect the candidate and you've got the candidate itself.

Nick Capodice: [00:08:36] This committee. Are we talking about PACs, political action committees?

Hannah McCarthy: [00:08:40] Well, we could be. There is space to register a PAC on form one. But what you need to know is that candidates have their principal committee that's subject to contribution limits. And then there are, quote, independent PACs that can raise unlimited funds in support of though not technically affiliated with [00:09:00] a candidate. And let's get one thing clear here. You want to be president?

Bakari Sellers: [00:09:05] So, I mean, I think the number one rule about campaign money is to raise as much of it as you can. I mean, that that would be if you're trying to run for office now, that would be my number one rule. Right. And and people always say, well, why do we get money out of politics? Great idea. Absolutely phenomenal idea. But until that day comes. Raise as much money as you can.

Hannah McCarthy: [00:09:23] Money does not necessarily mean a political action committee. Grassroots fundraising can and does make a difference. But suffice it to say, you've got to come by money one way or another if you're going to get your face and your voice plastered around the country and you maybe have to be a little crazy, too.

Bakari Sellers: [00:09:41] Oh, yeah, yeah, yeah. I mean, well, that's very narcissistic process and sociopath. Anybody running for president of the United States who believes that the entire country wants to follow you and choose them to be the leader of this great country has a slight dose of psychopathy. Because you don't just. I don't mean this to sound funny, but [00:10:00] when I speak to people around the country, especially young people, and they tell me they want to run for office, they ask for advice, and I say, have you ever met anyone who's halfway pregnant? And the answer to that is no. Either you are or you're not. There's no sticking your toe into politics. It's all consuming.

Hannah McCarthy: [00:10:19] I think it can sometimes be easy to forget that inside these shiny, quaffed, suit wearing stump speech making candidates are human beings. And when you enter the race, you are gobbled up by it. The campaign becomes everything.

[00:10:36] Right.

[00:10:37] Ok, the campaign. So first we have primary season, right?

Hannah McCarthy: [00:10:40] Right. Before you can get onto the ballot for president, you have to be nominated for president by your party. And in order to be nominated, you have to prove that voters are going to want you.

Nick Capodice: [00:10:51] Iowa State Fair, even corn dogs, kissing cows in New Hampshire, talking to folks in barns. We watch this stuff play [00:11:00] out every four years. We do. But -- but how do you get from that antiseptic form one and form two to flying around the country and fair food and trying to make everybody love you?

Hannah McCarthy: [00:11:12] You have to start by finding the people who know what they're doing and you have to get their buy in. People like Mark Squier who look for someone who really wants the job.

Mark Squier: [00:11:22] So I would say sort of an initial one is that sort of fire in the belly.

[00:11:27] Mark is a partner at Purple Strategies, a communications firm that prides itself on going for the bipartisan approach. Before that, he worked on campaigns, notably Howard Dean, who ran for president back in 2004. You may remember him by his scream.

Nick Capodice: [00:11:42] You didn't ask him about the scream. Did you ask him about the scream?

Hannah McCarthy: [00:11:44] He brought it up.

Nick Capodice: [00:11:46] What'd he say?

Mark Squier: [00:11:47] And I know you're going to ask me about the scream and I'll get into that later.

[00:11:51] But.

Howard Dean: [00:11:51] And then we're going to Washington, D.C. to take back the White House.

Hannah McCarthy: [00:11:58] Now, when Mark thinks about [00:12:00] taking a candidate on, he tries to evaluate whether they have a shot of convincing people that they are the one.

Mark Squier: [00:12:06] We remember when when the government came in and told us that he wanted to run. And I don't know, at that time, Bush looked completely invincible. Right. It was it was like, who is going to take this guy on? Because his the invasion in Iraq had been fairly successful and people were feeling okay about that. The economy was OK. And and, you know, Governor Dean was like, listen, I want to do this just because I want to talk about health care. And I've been a governor and I'm a doc and I got something to say about it. And we're like, okay, great. And we'd been with him for quite a while through his governors races. And eventually what happened was he took off like a rocket ship and we had to make a decision as a firm, frankly, just to go get on board and move to Burlington.

Hannah McCarthy: [00:12:52] So the campaign starts off kind of romantic, but, you know, it can't stay that way. You might start with fire in the belly, [00:13:00] but then you have to start playing by the rules. You have to do Iowa. You have to do New Hampshire. You have to play to the voters and you have to find the people with cash. Oh, and you're basically building a temporary business while you're at it.

Mark Squier: [00:13:15] You know, in Howard's case, you know, we were initially sort of a lot of people that had worked on this governor's race based in Burlington. You know, and eventually you have to set up shop in Des Moines, Iowa and New Hampshire. And then eventually these things keep going. You can then get sort of some field offices. There are satellites in those two states. And -- and then maybe you're starting to look at South Carolina, Nevada now.

Nick Capodice: [00:13:37] So I'm assuming this is the principle campaign committee who's doing all this work? But where do the PACs come in? Like when you see an ad attacking one candidate or puffing up another one, and at the end, it says something like paid for by the Freedom Lovers PAC, not authorized by any candidate, like it or not. Don't you just need people flooded with TV coverage? If you can't ask a PAC for help, how do you get one on board?

[00:13:59] You're hoping [00:14:00] that they're going to come in. And to that point, what we would do is go forward and let's say what we knew in the campaign when you did, you know somebody out there making a case against our opponent while we were also making a case for ourselves because voters didn't know enough about us. And let's just keep our fingers crossed that somebody comes on. On the other side and starts going after the opponent. So that's a way of saying, you know, we don't we can't coordinate, but we're certainly winking at each other saying, hey, we take this road, maybe somebody will take this route. But, yeah, the laws are very specific about that, that they can't just come in and buy a candidate.

Hannah McCarthy: [00:14:40] And even when you've got the PACs, TV and radio are peppered with your face and bad voice overs and intimidating music, you still need to talk to voters. There's this huge machine swirling around you, but you have to kiss the babies. You have to nod solemnly when someone tells you about losing the job at the factory. [00:15:00] And Mark says that voters can tell when someone is just glad-handing them.

[00:15:05] So the campaign staff has to keep an ear to the ground.

Mark Squier: [00:15:07] And then we'll figure out sort of what it is the voters need to hear. And then the job of us together is to marry those two things up in a way that's authentic and credible and that hopefully gets people to vote for you. But yeah, I think too often there are some candidates who just expect it to be packaged and marketed. And I think fortunately, I would say most of those campaigns tend to fail because I think voters do give voters a lot of credit. I think they can sniff this stuff out. And I think most of the time they can they can they can figure it out and make the right choice.

Nick Capodice: [00:15:45] So let's say you're telling voters exactly what they want to hear and they're responding well and things are starting to seem real palpably possible.

[00:15:54] Does the campaigning then start to shift?

Mark Squier: [00:15:56] And I remember probably about three weeks before [00:16:00] Iowa finally went that that I began to think, wow, you know, this might actually happen because like another example, you know, you go from like, you know, booking the candidate and one person on a small airplane to fly around from Council Bluffs, Iowa, to Des Moines to Iowa City. Right. To. Well, there's now enough interest in funding in the campaign. And the press wants to follow you that you now have, like, you know, a 737 jet that flies everybody, including the press corps, like a mini Air Force One, if you will, from, you know, Iowa and New Hampshire to South Carolina.

[00:16:38] You know, in those initial days.

Hannah McCarthy: [00:16:39] Mark says the campaign does begin to take on a life of its own. Success breeds success. And we're gonna go all the way on primaries and caucuses and conventions in later episodes. But the long and short of it is just like Mark said. People start to think you might win and that means you get votes in the Iowa caucuses, you get votes [00:17:00] in the primary.

[00:17:01] Enough people in enough states think that you might actually stand a chance against another candidate and suddenly you find yourself standing behind a podium at the Democratic National Convention.

Michael Dukakis: [00:17:11] Mr. Chairman.

Hannah McCarthy: [00:17:17] Accepting the nomination for candidacy for president of the United States of America.

Michael Dukakis: [00:17:22] A few months ago, when Olympia Dukakis front of about a billion and a half television viewers all over the world raised that Oscar over her head and said, OK, Michael, let's go. She wasn't kidding.

Hannah McCarthy: [00:17:41] And everything changes.

Bakari Sellers: [00:17:44] Oh, they changed drastically. Oh, they changed so quickly.

Hannah McCarthy: [00:17:47] Bakari Sellers, again.

Bakari Sellers: [00:17:48] Your campaign goes from a campaign of maybe 40 people in your headquarters, 80 people in your quarters in these states around the country to [00:18:00] 300 people in your headquarters.

Hannah McCarthy: [00:18:04] Bakari says that very quickly, you have to be everywhere. It isn't just you anymore. You are part of something bigger now.

Bakari Sellers: [00:18:12] You merge operations with your party. You merge with the RNC or the DNC. You go from being one hundred million dollars, 200 million dollar operation to a billion and a half dollar operation. You spent all this time eating like fried Snickers and stuff like that in Iowa. And now you're in Florida. Every other day in Michigan, Wisconsin, Ohio. You know, Pennsylvania. Running a primary and running a general. It's like apples and avocados. Like there's no no similarity.

Hannah McCarthy: [00:18:46] The way you approach voters has to change, too. Time is running out.

Bakari Sellers: [00:18:51] You're trying to message, you're trying to strategize. You're trying to make sure that on election day you have all of those people come out. So that becomes that never comes a point when you stop trying to strategize to [00:19:00] woo voters. That happens usually around October and at the beginning of October. There aren't many undecideds. There are people who you can convince to vote for you. They're people. People don't make their decision in October. Who they're going to vote for in November make that decision is already made. So in October, you switch over to what's called G.O.T.V. strategy, which is get out the vote strategy, and that's when you implement and try to figure out how you can get all those people from their couches to the ballot box.

Hannah McCarthy: [00:19:27] Picture Michael Dukakis fresh off his nomination. He's vetted and chosen a running mate, Lloyd Bentsen.

[00:19:33] And now the pressure is really on because he is playing for the biggest job in the country.

Michael Dukakis: [00:19:42] Once you win the nomination or the guy wins his nomination, now one of the two of you is going to be the leader of the free world.

Hannah McCarthy: [00:19:52] So in 1988, Michael Dukakis had proven to Democrats the country over that he could really possibly win.

Michael Dukakis: [00:20:00] And [00:20:00] everything you do for the moment you get outta bed to the moment you go to sleep is just subject to more enormous public scrutiny beyond anything you've had, even in a state that takes its politics very seriously with a very active and aggressive press corps, as this one is. I mean it's just a whole different ballgame.

[00:20:18] And I think one of the things that happens, it's almost inevitable, is you should got to way everything you say, everything you do.

Hannah McCarthy: [00:20:29] And it's just you and one other person under the microscope, in the pressure cooker.

[00:20:33] One on one debates.

Archival: [00:20:34] Because it's gotten a little ugly out there. It's gotten a little nasty. It's not much fun sometimes.

Hannah McCarthy: [00:20:41] Constant media attention.

Archival: [00:20:42] Do you feel that Michael has offered made his medical records public? Look, I'm not going to pick on an invalid.

Hannah McCarthy: [00:20:47] Attack ads.

Archival: [00:20:49] What else could it have been but these ads that drove up Michael Dukakis's negatives in the eyes of independents and Reagan Democrats?

Hannah McCarthy: [00:20:54] And of course, in the end there can only be one.

Michael Dukakis: [00:20:59] I called Vice President [00:21:00] Bush and congratulated him on his victory.

Michael Dukakis: [00:21:06] Did a great job in the program, and unfortunately screwed up the final, which was a very winnable race but didn't do the grassroots stuff and made a decision which turned out to be a pretty dumb decision that I was not going to respond to the Bush attack campaign. Keep it positive, this, that and the other thing. You want to keep it positive.

[00:21:28] But if somebody is coming at you with stuff, you've got to have a carefully thought out strategy for dealing with it. And I basically said, we're not going to do that. And it hurt me. Badly.

Nick Capodice: [00:21:40] It's just so much to go through it and possibly not make it to the end.

Hannah McCarthy: [00:21:46] Yeah. When we were speaking with Governor Dukakis and he was telling us this story, I just had to know what that does to you.

[00:21:55] Did you become disillusioned with politics through that process?

Michael Dukakis: [00:22:01] No. [00:22:00] Never have. You know, I'm not a guy that blames other people on me. I thought I thought I was responsible for my defeat because of these mistakes we made. And they weren't somebody else's mistakes. I'm not a guy that delegates responsibility of the campaign. Somebody else. I mean, you -- you've got to take responsibility. No, it did just you know, there were mistakes made. We ran a great primary and some lessons there for these candidates, particularly in a multi headed race. Don't start attacking some of your fellow Democrats.

Hannah McCarthy: [00:22:41] The fact is, Dukakis will always have been one of the two staring down the barrel of the presidency.

[00:22:48] I mean, my last question is just what is it like after the fact? Has your life changed significantly, having been the nominee and getting so close?

Michael Dukakis: [00:23:00] Yes, [00:23:00] in one respect. I think despite my loss that people look at you as somebody who's had interesting experience. Needless to say, and particularly now, you know, what was it like? What do you think? Do you think the candidates are doing this kind of thing. And people, I think, probably credit you with some degree of experience and maybe wisdom when it comes to this kind of thing.

Nick Capodice: [00:23:31] I think possibly the real answer to what's it like to run for president is try it and you'll find out, kid.

[00:23:40] Try it and you'll find out.

Archival: [00:23:43] I am not going to exploit for political purposes my opponent's youth and inexperience.

[00:23:50] I have so many opportunities from this country. I just don't want to see us fall backwards.

[00:23:57] I am paying for this microphone.

[00:24:00] Commerce, [00:24:00] education and the uh -- what's the third one there, let's see?

[00:24:05] You know, when I came back from Vietnam, I just had the greatest brainwashing that anybody can get.

[00:24:10] Read my lips. No new taxes.

Hannah McCarthy: [00:24:16] I forgot to mention, Nick, we've really only been talking about presidential elections that played out without too much drama because there are attack ads and then there's violence, fraud, contested votes and constitutional crisis.

Nick Capodice: [00:24:31] What election you're talking about?

Brady Carlson: [00:24:33] We're talking about the 1876 election, the one that has been called, and I quote, the ugliest, most contentious presidential election ever.

Hannah McCarthy: [00:24:43] Brady Carlson from Wisconsin Public Radio. He is going to be joining us at the end of every episode in the series to share one of his favorite presidential elections.

Brady Carlson: [00:24:51] All that ugliness and contentiousness had a pretty profound effect on American history, even if the candidates in that election aren't exactly top tier historical [00:25:00] figures today.

Hannah McCarthy: [00:25:01] Who are they?

[00:25:02] Two governors, Republican Rutherford B Hayes of Ohio.

Nick Capodice: [00:25:05] Vote for Hayes!

Brady Carlson: [00:25:05] And Democrat Samuel J. Tilden of New York.

Nick Capodice: [00:25:09] Tilden.

Brady Carlson: [00:25:09] And both of them were known as reformers.

[00:25:13] And that's because the outgoing administration of President Ulysses S. Grant had developed a reputation for how do I put this nicely needing reform.

Hannah McCarthy: [00:25:22] What did Grant do?

[00:25:24] Well, wasn't so much what Grant did, but the people underneath him, whom he trusted and maybe shouldn't have. Were alternately enriching themselves at the font of the government, helping their friends. So the country was not feeling great about its direction. The economy had been in trouble for a number of years, and the two people who were nominated to succeed Grant were seen as straight and narrow kind of guys, even if they weren't the most exciting candidates. In fact, one of hazes nicknames was Old Granny.

Hannah McCarthy: [00:25:57] So [00:26:00] who won, Brady?

Brady Carlson: [00:26:00] Well, from the looks of the popular vote, Tilden appeared to have narrowly won, which would have made him the first Democrat to win the White House in twenty years. In fact, the Republican nominee, old Granny Hayes, went to bed on election night believing that he'd lost.

Hannah McCarthy: [00:26:16] But.

Brady Carlson: [00:26:17] But as we've seen so many times, winning the popular vote does not equal winning the presidency.

[00:26:22] The votes that matter are electoral votes. And it wasn't 270 to win in 1876. The magic number then was one hundred eighty five. Tilden had one hundred eighty four. Hayes had won sixty five. But there were three states where Republicans said Tilden only won here because there had been massive voter suppression, fraud, all kinds of trouble. And there was also a single electoral vote from Oregon that was held up as well. So there are 20 electoral votes still up in the air. You get faithless electors all over the place. And at the same time, Democrats are saying there had been suppression and voter fraud in other parts of the state caused by Republicans. There [00:27:00] was even a story that the election board in one of those disputed states had offered to certify the election for Tilden and the Democrats in exchange for a million dollars. So ironically, in this campaign, with two reform candidates, both parties end up saying the other has tried to steal the election. And meanwhile, there's nobody with a majority of electoral votes.

Hannah McCarthy: [00:27:18] What do we do when there's no winner?

[00:27:20] Under the Constitution, it's up to Congress to count the electoral votes. And Congress was, like it is today, split. The House had a Democratic majority. The Senate Republican majority.

[00:27:32] So they decided to set up an electoral commission to review and then award these disputed electoral votes. They set it up so it would have five members of the U.S. House, five senators and five Supreme Court justices. And it was politically balanced. There would be seven Republicans, seven Democrats and one independent.

Hannah McCarthy: [00:27:49] Brady, that sounds like a total circus.

Brady Carlson: [00:27:51] And it's about to get even weirder.

[00:27:55] The independent justice was a guy called David Davis, a justice from Illinois. And [00:28:00] just as Congress is about to convene this very carefully, put together delicately balanced committee, Davis gets word back from Illinois that surprise the Democratic majority legislature there has elected him to the U.S. Senate.

[00:28:13] So Davis decides he can't be on the commission. He resigns. And the other four justices approve his replacement, Joseph Bradley, who was a Republican. And so the commission has eight Republican members who then outvote the seven Democratic members to award all of the disputed electoral votes to the Republican Rutherford B Hayes, giving him one hundred eighty five electoral votes, a one vote majority over Tilden and Rutherford. B. Hayes gets a new nickname to replace Old Granny. He's now called Rutherford Fraud.

Hannah McCarthy: [00:28:44] Rutherfraud! Ooh, that is a clever one, they knew what they were doing back then.

Brady Carlson: [00:28:50] And there's more. Congress then has to decide whether or not to accept the commission's decision, because under the Constitution, that's their job. The Republican Senate is ready for [00:29:00] Rutherford. The Democratic House is still convinced he's run their fraud and they decide maybe they're just not going to take up the Electoral College vote at all.

Hannah McCarthy: [00:29:08] And all of this under the threat of maybe having an empty chair in the Oval Office.

Brady Carlson: [00:29:13] Yeah, the clock is ticking here. When March 4th, 1877 rolls around, President Grant is leaving office. And unless someone is declared the winner of the election. Well, who's the next president going to be? So finally, the two parties work out a deal. Democrats say they will accept the commission's conclusion and they will vote to accept Hayes as the winner. But on a certain condition, they want federal troops removed from the capitals of several southern states. They had been there during reconstruction to, among other things, ensure that states were protecting the civil rights of black residents. This deal goes through March 2nd, which means President elect Hayes has a transition period of two days. A little rough for him, sure, but only a small hurdle compared to what was coming for black Americans. Whites have called this the compromise of [00:30:00] 1877. African-Americans have long called it the great betrayal. One more note about this election. Hayes, of course, goes on to be president. As for Tilden, he used to joke that he had the great honor of being elected president without having to deal with all the headaches of the office. But it had to have heard at least a little bit. And you might find out his true feelings about the 1876 election on his tomb in New York, where you'll find the words, quote, "I still trust the people.".

Hannah McCarthy: [00:30:29] Wow. Thank you, Brady.

Brady Carlson: [00:30:31] Glad to be here.

Hannah McCarthy: [00:30:39] That is a wrap on our episode about how to run for president of these United States of America. But there is a lot more in this series, including caucuses, primaries and conventions, DNC and RNC and of course, the very daunting Electoral College.

[00:30:55] Civics 101 is produced by me, Hannah McCarthy with Nick Capodice, [00:31:00] Erika Janik is our executive producer, Maureen McMurry has secretly run every successful presidential campaign in American history. Music in this episode by Junior 85, Florian Decros, Chris Zabriskie, Cambo and Broke for Free. We have more resources like graphic organizers, for those of you playing at home, as well as our contact info at civics101podcast.org -- hit us up. We want to hear from you. Civics 101 is produced in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Student Contest Winner: On the Bench

Here they are, a fantastic trio of winners!

From left to right, here are self-professed Supreme Court lovers Jessie Aniloff, Katie Bruni, Mr. Anthony Micalizzi, and Tara Czekner. They created On the Bench, a show about representation in the Supreme Court. Also, we interviewed the trio to hear why this topic was so important to them.

We will launch our next Student Contest in February, so look out! And if any teachers out there are attending NCSS in Austin this November, make sure to stop by our table! We love to talk audio in the classroom.

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Made possible in part by the Corporation for Public Broadcasting.

Starter Kit: How a Bill (really) Becomes a Law

We at Civics 101 adore Schoolhouse Rock and that sad little scrap of paper on the steps of the Capitol. But today we try to finish what they started, by diving into the messy, partisan, labyrinthine process of modern-day legislation.

This episode features the voices of Andy Wilson, Adia Samba-Quee, Alizah Ross, and Eleanor Powell.

Click here to find other charts of Civics 101 episode from Periodic Presidents.

Graphic Organizer: Have students take notes on this sheet when listening to the episode

Episode Segments

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TRANSCRIPT

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

Civics 101

Starter Kit: How a Bill (really) Becomes a Law

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

Nick Capodice: [00:00:04] Well, here it is. Saw this coming a mile away.

Schoolhouse Rock: [00:00:07] You sure have to climb a lot of steps to get this Capitol building here in Washington. Well, I wonder who that sad little scrap of paper is. I'm just a bill. Yes, I'm only a bill. And I'm sitting here on Capitol Hill.

Hannah McCarthy: [00:00:21] Do kids even know about this? Schoolhouse Rock?

Nick Capodice: [00:00:25] I don't even know. It was an educational animated TV show from the 1970s. I think we should ask a student.

Hannah McCarthy: [00:00:33] Got anyone in mind?

Adia Samba-Quee: [00:00:35] Hello. It's Nick isn't it?

Nick Capodice: [00:00:37] It is Nick, hi Adia

Adia Samba-Quee: [00:00:42] Yes, Nick! Hi.

Hannah McCarthy: [00:00:42] Adia, Hi Adia

Nick Capodice: [00:00:43] Adia Samba Quee was our first student contest winner. She's a civics friend. She'd just finished taking a test when I called her.

Nick Capodice: [00:00:49] What was the test on.

Adia Samba-Quee: [00:00:51] First and second New Deal programs and then describe like how like some of them still exist in real life. And then talk about like how like they were successful or not at like ending the Great Depression.

Nick Capodice: [00:01:02] I asked her if she knew the song I'm just a bill.

Adia Samba-Quee: [00:01:06] Yes. I had to watch it in fourth grade. We didn't even know what; I remember that where they talk about the prospect of a bill becoming law. Oh, God. Like I know how a bill becomes law, but not with the help of that video.

Nick Capodice: [00:01:20] So then I called a teacher, Alizah Ross. She teaches high school AP gov. I asked her if she shows it to her class.

Alizah Ross: [00:01:26] Every time. They love it. They ask for it. And then there is always like one or two kids that are like, I've never seen it. And then I feel like they have to see it. I think that there are some details that are definitely missing.

Hannah McCarthy: [00:01:39] So what's missing?

Nick Capodice: [00:01:48] This. All of this.

Nick Capodice: [00:02:01] I'm Nick Capodice.

Hannah McCarthy: [00:02:01] And I'm Hannah McCarthy.

Nick Capodice: [00:02:03] And today on Civics 101 in our Starter Kit series, we are going to follow that thread through the labyrinth. We are going to see how a bill really becomes a law. And I wasn't dragging on Schoolhouse Rock. It taught me that bills are brilliant ideas that are proposed. They go through committee, get voted on. Go to the other House. End up on the president's desk. Zip zap zop. Bob's your uncle.

Eleanor Powell: [00:02:25] So that's the sort of ideal version it's supposed to work.

Nick Capodice: [00:02:28] This is Eleanor Powell. She's the Booth Fellow associate professor of political science at the University of Wisconsin.

Eleanor Powell: [00:02:34] In practice, it very rarely works that way, and it's certainly not that simple. So in this unorthodox, messy world in which we live, essentially there are two parts.

Nick Capodice: [00:02:45] Two roads diverged in a chamber of Congress.

Eleanor Powell: [00:02:49] So one is the really easy path where essentially if everybody's on the same page, there's not a lot of bipartisan disagreement. There's not a lot of conflict. What happens is essentially both chambers use these expedited procedures.

Eleanor Powell: [00:03:02] The other path, the path of most legislation that you actually read about in the paper and you hear about in the news is the stuff that's more controversial where there's more partisan disagreement. That stuff gets hard and very messy.

Nick Capodice: [00:03:14] We're going to follow the complicated path for now. So part one: coming up with it.

Andy Wilson: [00:03:19] So the first thing is you have to come up with a bill. You have to have an idea. And then you have to translate that idea into what's called legislative language.

Nick Capodice: [00:03:27] I talked to Andy Wilson. He's a former staffer on Capitol Hill.

Andy Wilson: [00:03:30] An actual bill that adds to or commends some part of the United States code of laws.

Nick Capodice: [00:03:38] Members of Congress work with their staff to write bills. They can also get help if they need it from the nonpartisan Office of Legislative Counsel. Experts on legal language and how to write laws.

Andy Wilson: [00:03:49] So sometimes when you have the idea and you have a written, you take some time to gather up support for the bill as co-sponsors before you introduce it.

Nick Capodice: [00:03:56] If you've got several members of Congress as co-sponsors to a bill, that's a signal that this bill has lots of support. Co-sponsors are just adding their name to it. They might not have even read the thing. Bills in the House can have a few co-sponsors. They can have hundreds of co-sponsors, which makes them many times more likely to become a law. And as to crafting a bill, I never knew this. Anybody can write one. Special interest groups, lobbyists, people who are raising money for your campaign. It just has to be proposed by a member of Congress.

Hannah McCarthy: [00:04:26] So once you, along with your staff, the Office of Legislative Counsel and anyone else you fancy have written a bill, where does it go?

Andy Wilson: [00:04:34] In the House? You have to take it down to the clerk of the House, which is a team of people that sit near where the president gives the State of the Union address every year. And you have to drop the physical piece of paper with the legislative language on it into a box. And that box is called the hopper.

Hannah McCarthy: [00:04:53] The hopper?

Nick Capodice: [00:04:53] Yes. In 2003, they replaced their hopper from the 1950s. It's just a wooden box.

Andy Wilson: [00:05:00] But the clerk takes the bill and gives it a number in sequential order. So the first one in the new Congress is H R one, House resolution one or S. one, Senate resolution one. And then it's assigned to the relevant committee based on whatever the topic of the of the bill is. So if it's a bill that has to do with foreign policy, it's it's directed to the Foreign Relations Committee. If it's got to do with farm policy, it's referred to the Agriculture Committee and so on.

Hannah McCarthy: [00:05:31] Who is in charge of deciding what committee it gets assigned to?

Nick Capodice: [00:05:35] That is the speaker of the House or the Senate parliamentarian. Sometimes it even goes to more than one committee.

Hannah McCarthy: [00:05:41] All right. Written, dropped in the hopper. Assigned number and assigned to a committee.

Nick Capodice: [00:05:45] Right. Part two committee.

Nick Capodice: [00:05:52] The House has 20 permanent committees. The Senate has 17. And there's also four joint committees which have members of both the House and the Senate.

Andy Wilson: [00:05:59] The committees are formed to have expertise in a particular area so that they can be the first line of review of a particular topic instead of the whole house having to look at every little thing. So it's both to have deeper expertise on a given topic when looking at the various proposals that come before Congress and to have a little bit better process and having a more wieldy way in which the Congress can do its business.

Hannah McCarthy: [00:06:27] So who gets to be on these committees.

Nick Capodice: [00:06:29] Before each new Congress, every two years. There's a committee committee who chooses who gets to be in the committees. But what's most important about committees is that whichever party has a majority in the House or the Senate also has the majority in every single committee. For example, in 2019, the Agriculture Committee in the House has more Democrats than Republicans, and the Agriculture Committee in the Senate has more Republicans than Democrats.

Andy Wilson: [00:06:56] So that's why one of the reasons why the party that's in majority has so much power, because they really have the ability to set the agenda, to set the terms of the debate and to ultimately decide what is voted on and what is in committee and in in the full House or the full Senate.

Nick Capodice: [00:07:15] These bills get read sometimes for the very first time. They get hearings. They're discussed. Experts are called in to speak to the effects of a bill. They get marked up amendments are added.

Hannah McCarthy: [00:07:26] Question.

Nick Capodice: [00:07:26] Yeah.

Hannah McCarthy: [00:07:27] It's about amendments to bills, the kinds of things that can be added.

Nick Capodice: [00:07:29] Right.

Hannah McCarthy: [00:07:31] Did you see the speech that Jon Stewart gave the House committee on that 9/11 First Responders bill?

Jon Stewart: [00:07:37] It'll get stuck in some transportation bill or some appropriations bill and get sent over to the Senate where a certain someone from the Senate will use it as a political football to get themselves maybe another new import tax on petroleum, because that's what happened to us in 2015.

Hannah McCarthy: [00:07:56] What was he talking about?

Nick Capodice: [00:07:57] That line stuck out to me and I emailed Andy about it and he said that in the House, amendments to bills have to be, quote, germane. That means that they are relevant to the bill at hand. But in the Senate, there is no germane rule. You can propose any amendments on any topic whatsoever to a bill. So if you're a senator and you can't get your own bill to the floor and it doesn't have a lot of support, one thing you can do is get someone in a committee to put the stuff you want as a rider to another different, totally irrelevant bill. But this time period, this process of committee is where most bills die. And it's not because people vote on them in the committee and they say this is a bad bill. It's just they never get out a committee. So much time and effort and it just dies on the vine.

Andy Wilson: [00:08:45] It can simply disappear into the committee ether and never be heard from again.

Nick Capodice: [00:08:52] And if a bill doesn't make it to the floor for a vote in a Congress, it's dead. You have to start from the beginning and the next Congress, 90 percent of bills die in committee.

Hannah McCarthy: [00:09:03] Are committee members required to do anything like give a bill, a hearing.

Nick Capodice: [00:09:08] No they can just put it in the endless to-do pile.

Hannah McCarthy: [00:09:12] All right. So what if by luck and determination and bipartisan support, a bill survives the committee process and the committee reports it out and says this thing is ready for a vote? Is it then put on the calendar?

Nick Capodice: [00:09:24] Absolutely not. No way. In the House of Representatives, the Speaker of the House decides which bills that make it out of committee, gets to the floor for a vote. And in the Senate, it's the Senate majority leader who decides what gets voted on.

Hannah McCarthy: [00:09:38] Theoretically, can the speaker of the House or the Senate majority leader just kill a bill by not letting it get to a vote?

Nick Capodice: [00:09:44] Up until now, I've been talking about the House process and the Senate process as being pretty much the same. But here we have a major difference. The Speaker of the House. Yes. Can kill a bill, but there is a rarely enacted check on that power. It's called a discharge petition. Where if a majority of members of the House sign a physical petition, a piece of paper, that bill then gets brought out of committee and onto the floor for debate.

Hannah McCarthy: [00:10:11] What's the check in the Senate?

Nick Capodice: [00:10:14] Nothing. There's no discharge petition in the Senate. If the Senate majority leader does not want your bill to get voted on, there will be no vote. The only check on this power is election. The American people voting in a new majority party.

Nick Capodice: [00:10:29] Wanna talk about debate.

Hannah McCarthy: [00:10:38] Yeah, sure.

Nick Capodice: [00:10:39] Part 3 debate. First off, the house.

Andy Wilson: [00:10:45] In the house there's a really interesting and weird process called the Rules Committee, where any bill that's going to be debated in the full house has to go through the Rules Committee, where the Rules Committee votes on and determines what the terms of the debate will be. How much time will be a allotted for each side, what amendments might be in order. And when sort of the votes would be taking place. Generally, that's all controlled by the Speaker of the House.

[00:11:14] Said rule provides one hour of debate on the motion, equally divided and controlled by the chair and the ranking minority member.

Nick Capodice: [00:11:21] This is why you hear 'I yield the remainder of my time to the congresswoman from Delaware.' But in the Senate.

Ted Cruz: [00:11:28] Do you like green eggs and ham?

Nick Capodice: [00:11:30] There is no rules committee. You can talk as long as you like.

Ted Cruz: [00:11:37] Would you like them here or there? I would not like them here or there. I would not like them anywhere. I do not like green eggs and ham. I do not.

Eleanor Powell: [00:11:47] It's worth actually talking about what a filibuster is.

Nick Capodice: [00:11:49] This is Eleanor Powell again. And that was Texas Senator Ted Cruz reading Green Eggs and Ham in an attempt to block the Affordable Care Act in 2015.

Eleanor Powell: [00:11:57] So a filibuster is just any type of delay or obstruction that any individual senator can engage in. So it's not just the standing up and talking until you pass out the sort of old school filibuster that we used to think about. Now it's really a much broader category. And so the Senate really changed how they handle filibusters. So used to be you had to hold the floor of the Senate and you talk and talk until you can no longer talk anymore. And that's how you would break a filibuster. You'd wait somebody out.

Nick Capodice: [00:12:27] Cloture stops filibuster. If you invoke cloture you are asking to end of the debate and the filibuster and then have a vote. And it requires three fifths of the Senate to invoke cloture, 60 votes, which is a ton. The world record filibuster is currently held by Senator Strom Thurmond. He talked for 24 hours and 18 minutes in 1957 to block civil rights legislation. He also apparently took steam baths beforehand to dehydrate himself so that he wouldn't have to pee. But it doesn't really work like that anymore.

Eleanor Powell: [00:13:01] Now, essentially, the way it works is essentially you declare your intent that you would filibuster something. And so instead of trying to wait you out, they're going to try to proceed via cloture or just give up entirely or try to convince you might change your mind. And so the cloture vote, you know, getting 60 votes on something is really hard. That's a really tough threshold. And so this distinction where instead of having to talk yourself hoarse,.

Jimmy Stewart: [00:13:30] You all think I'm licked. Well, I'm not licked. I'm going to stay right here and fight for this lost cause, even if this room gets filled with lies like these.

Eleanor Powell: [00:13:39] Now that you only have to signal that you would filibuster, the costs of filibuster, are much, much lower than they used to be for an individual who doesn't like the legislation. And so that's one the really big changes that we've seen from essentially, you know, the fact that the majority responds to a filibuster by saying taking the threat is sincere and just saying, all right, we'll either have a vote to try to make you stop or we'll just give up rather than sort of try and force you to actually hold the floor and have this like long all night marathon. And that's what sort of made the cost of filibuster much lower for any individual senator who wants a change to some piece of legislation.

Hannah McCarthy: [00:14:19] Let me get this clear.

Nick Capodice: [00:14:20] Yeah.

Hannah McCarthy: [00:14:20] You don't need to stand up there anymore to block legislation. You just need to have the 41 people on your side say, yeah, we would block legislation and nobody has to bother with the steam baths.

Nick Capodice: [00:14:31] As things work now in the Senate, that's how you block a bill.

Hannah McCarthy: [00:14:35] So what does this mean for legislation?

Eleanor Powell: [00:14:37] So it's, it's had a huge impact. I mean, it means in practice now that you have to get, you know, 60 percent of the Senate on board, you in practice have to have bipartisan buy-in at least some level of bipartisan buy-in. And that just means very, very few things can pass through the Senate in its current form. And that's why we've seen here the majority in the Senate take you increasing steps to actually weaken the filibuster. Right. And we no longer allow you have filibusters or we lower the cloture vote threshold on judicial nominations, confirmations, that sort of stuff. Used to also require 60 votes for folks to get confirmed. Now, we've lowered that because not enough folks were getting confirmed. The majority felt they couldn't get their way.

Hannah McCarthy: [00:15:21] So the Senate makes their own rules for filibustering cloture.

Nick Capodice: [00:15:23] They do.

Hannah McCarthy: [00:15:24] Theoretically. If the Senate wanted to, they could just get rid of it. They could make cloture always 50 votes.

Nick Capodice: [00:15:31] They could.

Hannah McCarthy: [00:15:36] So are we here yet? The vote?

Nick Capodice: [00:15:39] Right. I'd almost forgotten the vote.

Andy Wilson: [00:15:45] The speaker of the House or the president pro tem in the Senate. Whoever is the presiding officer of the House at the time calls the calls the vote. Sometimes there's a voice vote in the Senate, for example, each member will come down, no name will be called, and they'll say I or nay, in the House, they typically vote by electronic device, which which means each member of Congress has a little card like a credit card, and they stick it into a reader and then they press green for yes. Read for no. And then the votes are tallied that way.

Nick Capodice: [00:16:19] Remember when Eleanor said that there are two paths to legislation and we've been going down the real gnarly one?

Hannah McCarthy: [00:16:23] Yeah.

Nick Capodice: [00:16:24] Let's take a little diversion down the Bunny Hill, suspending the rules. If the bill is relatively non-controversial, you can do what's called vote under suspension of the rules. If two thirds of the House agrees, you can ignore all the rules and debate and procedures.

Eleanor Powell: [00:16:40] And in the Senate, you actually have a unanimous consent agreement. So literally every single senator is on board and you just go ahead and pass it and you can just sort of skip all the other rules and the messiness. If people are, if there's no sort of partisan disagreement, we can just do this sort of easy process and lots of legislation passes that way.

Hannah McCarthy: [00:16:57] What kinds of laws get this fast track treatment.

Eleanor Powell: [00:17:00] Sort of standard everyday things that may not ever make it into a, you know, a headline in terms of the news, but in which there actually is a fair degree of, you know, bipartisan buy in. So this could be everything from symbolic bill. So renaming a post office, sort of relatively noncontroversial things, but even sort of more complicated things. You know, things like, you know, it's tough to even think of examples now because they tend to disagree on everything. But there are spending bills. There are other sorts of things where we do see a bipartisan buy and where essentially no one objects. And they've worked out their disagreements behind closed doors.

Hannah McCarthy: [00:17:41] How often is that?

Nick Capodice: [00:17:42] Pretty darn often. In the house, about 60 percent of bills are passed under suspension.

[00:17:47] Relative The rules are suspended. The bill is passed. And without objection, the motion to reconsider is laid on the table.

Nick Capodice: [00:17:53] After debate and maybe suspension of the rules in both the House and the Senate, it just requires a simple majority to win a vote. So it can pass. It can fail. There can be a motion to recommit, which means it's got to go back to committee for some work. But if it passes, all it has to do then is just go to the other chamber of Congress for the same exact process. Committee assignment, committee hearings, markup amendments. Reporting out. debate. vote. Because before that bill gets to the desk of the president. We've got just one more committee. If the language of a bill is exactly the same in both the House and the Senate, it goes to the president's desk to be signed. But that very rarely happens. Usually legislation goes to what's called the conference committee. Senior members of the committees in both the House and the Senate who worked on that bill. They meet and they talk and they argue and they decide one final version that both houses are happy with.

Hannah McCarthy: [00:18:59] And that goes to the president.

Nick Capodice: [00:19:01] That that my old friend that goes to the president is so close, so close, you could just taste it. The last part, presidential actions.

Nick Capodice: [00:19:15] The president can sign it and it becomes a law. The president can also veto it, saying, I don't like this bill and it doesn't become a law, but the Congress can override a veto with a two thirds majority vote. Also, the president can just ignore a bill if it's left on that desk for 10 days. It becomes a law even without the president's signature. However, if the Congress adjourns before those 10 days are up, it does not become a law. This is called a pocket veto.

Nick Capodice: [00:19:46] And there you have it. What do you think?

Hannah McCarthy: [00:19:49] It sounds to me like this whole process is mostly about committees, like the committee is the most important thing.

Nick Capodice: [00:19:55] Yeah. Most bills die in committee. Committees determine everything when it comes to bills, and Eleanor said something that I hadn't thought about, that people in committees have areas of expertise and they know people who work in the industry. But the influence of committees on bills has recently shifted.

Eleanor Powell: [00:20:10] You know, congressional committees are really important in the legislative process. But one of the changes we've seen over the last several decades is party leaders increasingly taking power away from the committees. And a lot of what the committees are doing is sort of implementing changes that the party leaders wants to see in the legislation that have been sort of already agreed upon by the majority.

Nick Capodice: [00:20:32] That is my big takeaway for this whole episode, pretty much for the whole series that nobody can do anything by themselves unless one party has the presidency and the House and 61 seats in the Senate. There must be compromise and tons of it before you even begin the process. In the 115th Congress, of the proposed thirteen thousand five hundred and fifty six bills, 443 became law.

Hannah McCarthy: [00:21:09] You wanna take a whack at this?

Nick Capodice: [00:21:10] I'd usually save this for a post credits joke. You wanna leade me in.

Hannah McCarthy: [00:21:14] What do I say??

Nick Capodice: [00:21:14] You got to say, I wonder who that sad little scrap of paper is.

Hannah McCarthy: [00:21:18] I wonder who that sad little scrap of paper is.

Nick Capodice: [00:21:23] I'm just a bill. Yes, I'm only a bill. And my fate was pretty much determined by the party in power. Well, I was written by the staff of a member of Congress and also helped some lobbyists in the Office of Legislative Counsel. But I was drop in the hopper and given a number

Nick Capodice: [00:21:42]  But to day, I'm still just a bill.

Hannah McCarthy: [00:21:49] Gosh, Bill, what happens in a committee.

Nick Capodice: [00:21:50] Well, I'll tell you, my young shaver. You See, committee is where I’m read and talked about and there are hearings and if I’m super lucky I get reported out, that means I’ll be either killed or sent to the whole house for debate, after teh rules committee of course, but the number of members in a committee who decide whats gets reported out is directly proportional to the partisan makeup of the respective chamber of congress, if the house has 235 democrats and 197 republicans, the committee will have about 22 democrats and 17 republicans and in the unlikely event that I get a hearing by the committee or subcommittee, I am debated and investigated for a good long while, but if there’s no way I can get a 61 person majority in the senate, maybe the committee says why bother even talking about it, it’ll never work! But if it is reported out favorably in the house it goes to the rules committee who decides the terms of the debate and what amendments can be added. The speaker of the house is in charge of the calendar for when bills are debated and voted upon the floor and the senate majority leader is in charge of the calendar, and in the house an absolute majority of members can sign a discharge petition to drag it out of committee and onto the floor for a vote but that’s happened a handful of times since 1985. There’s also the hastert rule, which I didn't  talk about in the episode, which is more of an informal rule, where the speaker of the house won’t let bills come to the floor that don’t have the support of the majority party, even if the bill would theoretically pass! And we’re just getting started! Maybe we can just suspend the rules and vote and the post office is named after Frank Harrigan the third,  Hooray! Frank, we're so glad you got your post office.

Nick Capodice: [00:23:15] That's it for today, and that's it for the whole darn starter kit series.

[00:23:19] We're going to be back in a few weeks. Can't believe it's over. Today's episode was produced by me Nick Capodice with you, Hannah McCarthy. Thank you.

Hannah McCarthy: [00:23:26] Thank you, Nick. Editorial help from Jacqi Fulton, Ben Henry and Samantha Searles. Erika Janik is our executive producer and Sway Back Adirondack Pack Basket.

Nick Capodice: Maureen MacMurray takes steam bath before managers meetings

Hannah McCarthy: music in this episode by Schoolhouse Rock. Chris Zabriskie, Bisou, Uncle Bibby, Lee Rosevere, Kevin McCloud, Mild Wild, Cooper Cannell and Blue Dot Sessions. And a very special thanks to Sophia Jordan Wallace, who schooled us on representation in Congress.

Nick Capodice: [00:23:53] We do it often. We do not do it often enough. Civics teachers, AP gov high school gov, social studies, whatever. If you've used any of our episodes in your class, we really want to hear about it. Drop us a line. Civics101@nhpr.org

Hannah McCarthy [00:24:05] Civics 101 is made possible in part by the Corporation for Public Broadcasting and is a production of an NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Starter Kit: Federalism

A tug of war, a balancing act, two dancers dragging each other across the floor. This is the perpetual ebb and flow of power between the states and the federal government. How can things be legal in a state but illegal nationally? Are states obstinate barricades to federal legislation? Or are they laboratories of democracy?

Today's episode features Lisa Manheim, Associate Professor of Law at the University of Washington School of Law and co-author of The Limits of Presidential Power, and Dave Robertson, Chair of the Political Science department at the University of Missouri St.Louis.

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

Episode Segments

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TRANSCRIPT

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

 Civics 101 — Starter Kit: Federalism

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

Archival: [00:00:09] It is my opinion that the south will be law abiding and will comply with the decision of the court and a step.

Hannah McCarthy: [00:00:17] In 1954, the Supreme Court handed down a landmark decision.

Archival: [00:00:22] People in the south are just as law abiding as anybody else. And other decisions have come down which they said they wouldn't like. And there's never been any trouble as a result of any of these decisions.

Hannah McCarthy: [00:00:34] Brown vs. Board of Education. Segregation in schools is unconstitutional, a violation of the Equal Protection Clause in the 14th Amendment. Separate but equal is not equal at all.

[00:00:46] Nine thousand negroes met together with no problem at all and discussed segregation and the ending of segregation. And that was in Mississippi.

Hannah McCarthy: [00:00:56] Three years later, a group of nine black students formally enrolled in an all white school in Little Rock, Arkansas.

Nick Capodice: [00:01:02] The Little Rock Nine.

Hannah McCarthy: [00:01:03] The Little Rock Nine.

Archival: [00:01:04] Units of the National Guard have been and are now being mobilized.

Hannah McCarthy: [00:01:12] And Governor Orval Faubus responded with military force.

Archival: [00:01:16] Advance units are already on duty on the grounds of Central High School.

Hannah McCarthy: [00:01:23] A mob of screaming white protesters lined the path as the nine students approached Central High School.

[00:01:28] They never did make it inside. The Arkansas National Guard, under orders from the governor, barred their entry.

Archival: [00:01:38] Then you see it as a state-federal conflict of authority.

[00:01:43] Oh, I don't think there's a question about that.

Lisa Mannheim: [00:01:44] This was clearly unconstitutional based on the Supreme Court's decision. But the states nevertheless argued that they did not need to be, in a sense, bound by the U.S. Supreme Court's decision. They disagreed with it. They said we don't we don't need to follow it.

Hannah McCarthy: [00:01:59] This is Lisa Mannheim. She's an associate professor of law at the University of Washington School of Law. So back in Arkansas in 1957, the governor tries to forcibly prevent enforcement of federal law.

Lisa Mannheim: [00:02:11] In response, the president, who at the time was President Eisenhower, sent in federal troops to escort these students into the state run school. So that would be an example of state government refusing to comply with federal law. And in response, the federal government here, both the court which concluded that the Arkansas was incorrect to think it had the power to do this, as well as the executive branch, the president here pushing back against the state in the sense forcing the state to comply with federal law.

Hannah McCarthy: [00:02:42] Eisenhower deputized as the National Guard to take it out of the governor's hands. And for the rest of the year, there is a military presence at the school enforcing the federal integration law.

Nick Capodice: [00:02:54] So Arkansas is forced to comply with desegregation.

Hannah McCarthy: [00:02:58] Actually, the events at Central High School were just the beginning before desegregation was going to happen in Arkansas.

[00:03:05] There was going to be a dance.

Nick Capodice: [00:03:06] What kind of dance?

Hannah McCarthy: [00:03:07] A dance of state and federal government in a constant swirl of conflict, negotiation and defiance. A dance otherwise known as federalism. And that is the subject of our show today. One big government and the 50 little governments that comprise it. I'm Hannah McCarthy.

Nick Capodice: [00:03:28] And I'm the Nick Capodice.

[00:03:29] And this is the Civics 101 starter kit on the delicate balance that keeps -- or tries to keep -- American democracy in order.

Lisa Mannheim: [00:03:37] The United States is a federation. And what that means is that we don't only have a national government. We also have a number of governments that operate, in a sense, underneath the federal government or alongside the federal government in. In the United States, this refers to the 50 separate state governments that exist along with the federal government. And it's important to understand that these state governments are their own independent governments. They are not just subsections of the federal government.

Hannah McCarthy: [00:04:11] Back in Arkansas in the 50s, Eisenhower sends the troops in and says, "waltz."

[00:04:18] But Governor Faubus is like, no way. You can't make me. Tango.

[00:04:27] Arkansas requests a delay on desegregation from the federal court system and they get it. But then the NAACP petitions the Supreme Court for an emergency overturn, Arkansas's case goes back to the federal courts. Governor Faubus won't budge. He calls an emergency session of the Arkansas General Assembly to consider 16 bills to forestall desegregation. The Supreme Court meets and orders immediate integration of Central High. Arkansas passes the segregation bills and closes the Little Rock High School system. For the next year, there is no integration in Little Rock high schools because there are no Little Rock high schools.

Nick Capodice: [00:05:32] Hannah, correct me if I'm wrong, but this is totally illegal, isn't it?

Hannah McCarthy: [00:05:36] Oh, yeah, it's totally illegal.

Nick Capodice: [00:05:38] But it happened.

Hannah McCarthy: [00:05:39] But it happened.

Nick Capodice: [00:05:40] How is it possible that it happened?

Lisa Mannheim: [00:05:42] If you think about a government as having its own independence, as working on its own.

[00:05:49] But at the same time, having to share a space, in a sense with a separate government, you are.

[00:05:58] Trying to work out a system whereby two sovereigns are somehow coexisting.

Nick Capodice: [00:06:11] Two sovereigns at once. It just seems impossible. It's hard for me to wrap my mind around the idea that two governments are in charge. We look at Arkansas. It doesn't seem like it could possibly work.

Lisa Mannheim: [00:06:22] It's very complicated. And there are three overarching principles that are helpful to keep in mind when it comes to this complicated idea of federalism.

Hannah McCarthy: [00:06:31] Principle number one.

Lisa Mannheim: [00:06:32] The first is that in the United States, the Constitution makes clear that the federal law wins if there's a conflict between the federal law and some sort of state law. If, for example, you think about a simple illustration, something like imagine there's a federal law that says if you package a certain product, the packaging needs to be blue. By contrast, you have a state law that purports to regulate the same product. And it says, no, if you package this sort of product. The packaging has to be red. In that case, it is impossible for a company to comply with both federal law and state law. There's a conflict. And as a result, the federal law controls. And the state law is no longer valid.

Hannah McCarthy: [00:07:13] Federal beats state. This is called the supremacy clause. The Constitution and federal law are the supreme law of the land.

Hannah McCarthy: [00:07:23] Principle number two?

Lisa Mannheim: [00:07:24] State governments are profoundly important in our country. And this is particularly true in areas where the federal government hasn't regulated very much, or maybe where the constitution doesn't allow the federal government to regulate very much or even in areas where the states just think it's very important to do some sort of lawmaking places where there in particular there's a lot of state law rather than federal law are in areas like family law relating to marriage and divorce and the like, criminal law, property law, as well as laws relating to contracts.

Hannah McCarthy: [00:07:58] States are your primary lawmakers. Where you live in this country matters because states govern the bulk of your life. So even though the federal government is the top law of the land, state laws are closer to you and there are more of them. Quantity over clout. All right.

[00:08:14] Principle number three.

Lisa Mannheim: [00:08:16] The last principle that is really helpful to keep in mind when it comes to federalism is that because state governments are independent of the federal government, they not only are, as a practical matter, able to push back from against the pie federal government if they so choose. They are also constitutionally protected in that sort of resistance. So if a state law disagrees with federal policy with respect to something like criminal law or immigration related law, the states retain a constitutionally protected power to, in a sense, refuse to cooperate with the federal government. By contrast, if the states agree with the federal law, they can voluntarily choose to cooperate. The states retain the ability to make that decision. Now there's limits to exactly how a state is able to do this. But the basic principle is embedded in the constitutional structure.

Hannah McCarthy: [00:09:12] For one thing, if state law contradicts federal law, the federal government can choose to enforce the supreme law of the land. Can being the operative word, it often opts not to. And then we've got the 10th Amendment. That's the one that says that the federal government only has the powers that are actually listed in the Constitution. All other powers are reserved for the state or the people to decide.

Nick Capodice: [00:09:42] Right. The 10th Amendment sort of follows the Ninth Amendment to address the concerns that Hamilton had and Madison had about your rights being constrained by the Constitution. The night says your rights are not limited to what's in the Constitution, and the tenth says whatever is not addressed here is left up to the states.

Dave Robertson: [00:09:57] Remember, the people who wrote the Constitution were first and foremost politicians. They weren't philosophers, they weren't saints. They certainly weren't political scientists, but they knew a lot about those things. What they were interested in was making sure that a new government could protect their states and accomplish national purposes. But the same time, not destroy the vital interests of their states.

Hannah McCarthy: [00:10:25] This is Dave Robertson.

Dave Robertson: [00:10:26] Chair of the Political Science Department at the University of Missouri, St. Lewis.

Hannah McCarthy: [00:10:33] Dave tells this story about a group of Russians visiting the university. The visitors are all interested in civics, and Dave is trying to explain how the U.S. government works through this principle of federalism.

Dave Robertson: [00:10:43] I started by showing them what they can see every day there in the United States. I showed them a variety of license plates because just about any place you'd go in the world, you have very boring license plates and they look similar to license plates in other countries. I think of Europe along those lines. Well, in the United States, if somebody is driving you around, you can see all of these fancy look. License plates of different colors, different sayings and different kinds of designs. And I try to explain if you want to understand federalism, you have to understand that states can do a whole lot of things differently that are not done differently and lots of other countries.

Hannah McCarthy: [00:11:30] Dave points out to his Russian visitors that the 50 disparate chunks of our country are called states like independent, self-governing mini countries inside of a bigger country. And the framers had just come through the Revolutionary War where they broke off from Britain, this big, powerful government. Just try and tell some of these scrappy little states that you're going to impose a big, strong federal government on them. Some states were going to benefit. Others, though, would get short shrift it. Alexander Hamilton, for example, wanted a strong federal government because it would benefit his state, New York.

Dave Robertson: [00:12:03] He wanted lots of tools for the federal government to control trade and to help nurture economic development and to do other kinds of things that would build manufacturing in the United States. Madison and Jefferson represented Virginia, which was a state that made a lot of money by growing crops and shipping them overseas. Trade restrictions, tariffs. The development of a manufacturing economy would tend to benefit states like New York. Hamilton states. And it would disadvantage a state like Virginia and other southern states that grow crops for export to Europe and to elsewhere. Those economic differences, along with philosophical differences about which level of government exercise, which powers really help drive a wedge between Madison and Hamilton and help spur the creation of national political parties.

Nick Capodice: [00:13:09] Ok, so there's that north versus the south from the get go.

[00:13:13] And we all know what happened next.

Dave Robertson: [00:13:14] Because states decided that they could get out of the union. And that was contested, wasn't settled by a court. It wasn't settled by a political compromise. It was settled by bloodshed, lots of bloodshed and incredibly brutal war in which one side surrendered and surrendered that right to leave the union forever, at least as long as our constitution stays in effect.

Hannah McCarthy: [00:13:41] While the South was in secession, the Republicans, led by Lincoln, leveraged federal power to help industry, commerce, even education. The tendrils of strong government eventually led to a nationalized railroad system and telegraph system. The economy boomed. An industry ruled for years. But as farms dwindled, factories rose and the population exploded. You also started to see extreme poverty, and so state and federal government needed to start working together.

Dave Robertson: [00:14:10] The result was a progressive movement that aimed to help create partnerships between the national government, whose powers were limited by the Supreme Court and the states. So in that period, you saw lots of federal efforts to try to connect with the states, to build highways, to extend vocational education, even to extend for a time help for mothers and children. Almost any innovation you can think of that is now a federal program. Whether you're talking about welfare programs, you're talking about civil rights programs or talking about environmental programs. All of those things have been innovated often at the local level and cities then spreading to the states and finally being adopted by the federal government. That's part of the story of what happened in the 1960s and 70s with environmental policy.

Nick Capodice: [00:15:09] Wait, almost any federal program starts at the state level?

[00:15:13] What about something like Social Security?

Dave Robertson: [00:15:14] Aid to mothers with children? The stated innovated those things. Even unemployment compensation is a federal state program because the states of Ohio and Wisconsin had pioneered those before the federal government got involved.

Nick Capodice: [00:15:30] So what if the federal government kicks off a program that was like litmus tested in Iowa and Kansas says, no, heck no, we don't need a national speed limit.

Hannah McCarthy: [00:15:40] Well, for one thing, let's say the federal government is providing money to replace all the speed limit signs in your state. Kansas can be like we don't need your filthy money.

Dave Robertson: [00:15:49] Yes, there's lots of instances of that. There are states that reject the money because they don't want to deal with the regulations. But but that doesn't last long because there's often a provision that allows the federal government to come in and begin to implement the rules of if the state. Doesn't decide to join in. That happened with the Clean Air Act. The state of Arizona didn't join in for a good number of years, and it has happened with a lot of more conservative states and the Affordable Care Act.

Hannah McCarthy: [00:16:27] And Dave says, even in cases of federal law, the bulk of the implementation of those laws tends to fall to the states.

Dave Robertson: [00:16:35] We think about all of those federal regulations that the EPA issues as being federal rules, and they are. But in case after case, the states actually administer those laws so that the states regulate about 90 percent of most of the regulations of the environment that the federal government issues. The states do things differently and they have a lot of power to do important things differently. It's not that in theory, federalism matters. It's in practice. States rule most of our lives in many everyday ways, from birth to death.

Archival: [00:17:20] New Yorkers won't have to choose between just two gender categories and a birth certificate.

[00:17:24] Yesterday asked the Florida House passed a bill the Senate had already passed that creates the state's 5th school voucher program. They're introduced at the Ohio State House. Could mean teenagers have to wait until they are 16 and a half years old to get their driver's Arkansas.

[00:17:38] Lawmakers could limit who would benefit from the minimum wage increase. That vote was first time.

[00:17:44] Louisiana has a minimum age for marriage.

[00:17:47] 60 year old Vermont physician assisted dying legislation approved by the legislature. The law making the provision permanent.

Nick Capodice: [00:18:05] I keep coming back in my mind to the Little Rock Nine. They were forced out of the school and then the school was shut down by illegal measures. How did Arkansas get away with it?

Hannah McCarthy: [00:18:18] In the end, they didn't. Federal law ended up beating state law as it's supposed to. In 1959, a federal court struck down Governor Faubus as school closing law. And that August, Little Rock's white schools opened with black students in attendance. The state public school system was fully integrated by 1972.

Nick Capodice: [00:18:36] But that is so long.

[00:18:39] That's what 15 years to implement a federal law and one of the most significant federal laws our country has ever witnessed. Separate but equal is not equal.

[00:18:50] I feel I feel Hannah to an extent.

[00:18:54] If it weren't for this given take between the state and the federal where obstinate racism was given its say on the state level, those schools would have integrated a lot sooner. I mean, is federalism actually good for American democracy?

Nick Capodice: [00:19:08] It's essential for democracy to have a competing party that is protected from eradication and. In the United States, state governments help provide a place where opponents of the incumbent administration can thrive, where they can really build up a coalition of opposition to the people in power. Sometimes, you know, we often being partisans don't like that. Some Democrats didn't like opposition from conservative states to Barack Obama. Some conservatives now don't like opposition to Donald Trump. But in the end, we have to have a system where a president doesn't have the power to eliminate his opponents. There is a great photograph from 2012 where Barack Obama is on a tarmac in Arizona and the diminutive governor of Arizona, a woman, is lecturing him and pointing her finger at his chest. She is opposing him. She's criticizing him for all kinds of things, including Obamacare. But as I tell visitors from other countries like Russia, Barack Obama cannot fire her. He can't get rid of the legislature in the state of Arizona. He can't eradicate that opposition. And if there's one thing that democracy needs that our republic needs, its opposition to, anybody who's in power.

Nick Capodice: [00:20:51] It feels like federalism is like the firewall of our democracy.

[00:20:56] It is ambiguous and frustrating, and imperfect. But it helps keep this bird up in the air.

Hannah McCarthy: [00:21:04] Yeah, I think even though so many of us bristle at it. It's essential that we are a country that is not of one mind. And sometimes that's really ugly. But so long as we're allowed not only to disagree, but disagree to the point of combating laws and taking those laws to court and even finding our own way to use those laws to govern ourselves. That decentralized power is what makes this country so unusual. It's a mess. It's chaotic. But that's the way it's supposed to work.

Archival: [00:21:49] And I've enjoyed weed since Vietnam. And I think it's time for that whole United States to federally to legalize it.

[00:22:02] When did it become unconstitutional to exclude homosexual couples from marriage?

[00:22:09] The States Living Infants Fairness and Equality or Life Act bans all abortions after a fetal heartbeat is detected so far.

[00:22:17] Eight states and Washington, D.C. have legalized the drug for recreational use.

[00:22:21] The unborn deserves a up and down vote right yet to live.

[00:22:25] In Salt Lake City, yet another victory for gay rights advocates across the nation.

[00:22:30] Marijuana has long been classified as a Schedule 1 drug. That's the same classification for drugs such as heroin.

[00:22:37] A lot of them are pretty obviously contradictory to Roe v. Wade and other Supreme Court precedents on abortion.

[00:22:42] They say of California now wants to allow same sex marriage. They can repeal that constitutional amendment.

[00:22:48] My body, my choice, her body, her choice.

[00:22:54] I'm just I'm just excited to get home, get out of the cold and finally get to use legally for the first time ever.

Hannah McCarthy: [00:23:15] Civics 101 was produced this week by me. Hannah McCarthy with you, Nick Capodice Our staff includes Jackie Fulton and Ben Henry.

Nick Capodice: [00:23:21] Erika Janik is our executive producer and Supreme Law of the Land. Maureen McMurray is a federation unto herself.

Hannah McCarthy: [00:23:28] Music in this episode by Chris Zabriskie, Metre. Cooper Cannell and Bio Unit.

Nick Capodice: [00:23:32] Hannah and I have so much to share from our research into episodes that doesn't make it into the episode.

[00:23:37] But lucky enough, we have a newsletter where we can put all that good stuff: civics101podcast.org/extracredit.

Hannah McCarthy: [00:23:40] Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Starter Kit: Judicial Branch

The Supreme Court, considered by some to be the most powerful branch, had humble beginnings. How did it stop being, in the words of Alexander Hamilton, "next to nothing?" Do politics affect the court's decisions? And how do cases even get there?

This episode features Larry Robbins, lawyer and eighteen-time advocate in the Supreme Court, and Kathryn DePalo, professor at Florida International University and past president of the Florida Political Science Association.

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

Episode Segments

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TRANSCRIPT

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

Civics 101 –

Starter Kit: Judicial Branch

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

[00:00:10] This Lieutenant White came and showed a piece of paper.  And, Mrs. Mapp demanded to see the paper, to read it, see what it was.

[00:00:20] The first plaintiff was Jane Roe, unmarried pregnant girl who had sought an abortion in the state of Texas.

[00:00:27] We can't order you to salute the flag. We can't order you to do all these obeisances around the flag. Can we order you not to do something, to show something about the flag?

[00:00:37] I see that my white light is on, so if there are no further questions I would save my further time for rebuttal.

[00:00:42] Thank you, Ms. Phelan, you have further time. We'll hear now from you Mr. Robbins

Nick Capodice [00:00:49] Do you remember this moment?

Larry Robbins: [00:00:51] Yeah.

Larry Robbins in 1986: [00:00:52] Mr. Chief Justice. And may it please the court. I'd like to begin my remarks by addressing the questions regarding deception...

Larry Robbins: [00:01:02] So is that that's actually from must be from Colorado against Spring. Yeah. I you know, I didn't realize that that one was recorded. I don't know that I've ever heard it.

Nick Capodice: [00:01:13] This is Larry Robbins. He runs a private law practice now, but for years he worked in the office of the solicitor general. That's the office responsible for arguing on behalf of the United States in the Supreme Court. I called him up because I wanted to know what it's like to stand there alone under the eyes of Rehnquist, O'Connor, Ginsburg, Marshall.

Larry Robbins: [00:01:35] What's remarkable, though, it was to me anyway, the first time I stood up at the lectern is how close to you the justices are. I always I guess I always analogize it to sitting in a living room with nine very smart people who have thought about the same problem that you have and want to ask you some questions about it. And your job is to answer them. That's how it felt to me. And I've done it 18 times and it always feels like that.

Nick Capodice: [00:02:10] It's the judicial branch today on Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:02:13] And I'm Hannah McCarthy.

Nick Capodice: [00:02:14] And while I studied acting in college, on a whim I took this one class on the First Amendment. Where the only texts we were assigned were Supreme Court opinions. And thereafter, I took every single course that professor taught. And I just carried a torch for the third branch ever since. Hannah, what would you say if I told you that the judicial branch is, quote, beyond comparison? The weakest of the three departments of power, that its next to nothing?

Hannah McCarthy: [00:02:42] I'd say you were terribly misinformed.

Nick Capodice: [00:02:44] I know, but that was a direct quote from Federalist 78 by Alexander Hamilton, because initially the Supreme Court did not have that much power. But there was a night. Then everything changed.

Hannah McCarthy: [00:02:59] Lay it on me.

Nick Capodice: [00:03:01] You're going to love it. I'm standing up. The presidential election of eighteen hundred, the two major political parties, the Federalists and the Democratic Republicans. Thomas Jefferson, the Democratic Republican beats the incumbent Federalist John Adams, 76 electoral votes to 65.

Nick Capodice: [00:03:23] And Adams becomes what they call a lame duck president. He's just sitting around until Jefferson is sworn in on March 4th. It's like spring of your senior year, right. But Adams and his federalist Congress, they don't just sit there. They go to work in the lame duck session. They pass this law called the Judiciary Act of 1801. And it's a new version of the Judiciary Act of 1789. I promise this is important, which creates a ton of new courts in the United States. And Adams uses his executive power of appointment and just packs those courts full of Federalist judges. The very night before Jefferson comes to the White House, they have appointed 16 circuit judges and 42 justices of the peace. These were called the midnight judges. Got all their albums. So you get a judge commission and you get a judge commission. Adams's Secretary of State John Marshall, he's just running around frantically trying to give out these judgeships and some of them didn't get delivered.

Nick Capodice: [00:04:20] Tom Jefferson is sworn in, and one story goes that he sees all of these judge commissions on the table and says, oh, no, you don't. And he maybe throws them all in a fire.

Nick Capodice: [00:04:33] One of those potential judges, William Marbury, sitting by the phone with a ham sandwich waiting for his commission to arrive. He goes to the Supreme Court to sue Jefferson's new secretary of state, James Madison. He says, hey, I was promised this judgeship. I didn't get it. He's furious. And the chief justice of the Supreme Court is John Marshall.

Hannah McCarthy: [00:04:54] Hold on one second. John Marshall was Adam's secretary of state. The guy delivering all those commissions.

Nick Capodice: [00:05:01] Yes. And the Chief Justice, John Adams, was like, all right, my term's ending. Can you just do both jobs until Jefferson comes to office? So William Marbury, he thinks he's got this one in the bag. He's asking the court to issue what's called a writ of mandamus, which is where the court orders the executive branch to do something to give him that judgeship. And Justice Marshall, stunning everyone, says, I'm sorry, Bill, I can't do that. Because that 1789 Judiciary Act was unconstitutional. And we the Supreme Court, we have a job to do. And it is not to make people do things. Our job is to say whether or not something is constitutional. That case, Marbury vs. Madison, establishes judicial review.

Hannah McCarthy: [00:05:53] All right, I was wondering where you're going with that story. But this is pretty significant. A branch giving itself a major power, maybe the most major power.

Nick Capodice: [00:06:03] Yeah. And apparently a kind of flew under the radar at the time.

Kathryn DePalo: [00:06:06] Now, a lot of people make a big deal about Marbury versus Madison today.

Nick Capodice: [00:06:10] This is Catherine DePalo. She's a political science professor at Florida International University.

Kathryn DePalo: [00:06:15] But at the time, it kind of came and went with a whimper. Right. Because nobody really said, oh, gosh, now this gives the U.S. Supreme Court all this power of judicial review to declare something unconstitutional. You know, the courts were kind of an afterthought. They weren't really thought as as, you know, as equal as Congress and the presidency, at least in people's minds. You know, in the Capitol building, they met in the basement.

Hannah McCarthy: [00:06:39] The Supreme Court used to meet in a basement.

Nick Capodice: [00:06:41] Yes. Catherine told me that after Marbury versus Madison, the court didn't rule something unconstitutional again until 1857, the infamous Dred Scott decision, where the court ruled that an enslaved person was not a citizen and had no rights. The Supreme Court didn't really kick into its modern, more powerful iteration until the 20th century.

Hannah McCarthy: [00:07:01] So if they weren't declaring laws constitutional or not, what were they doing? What are their constitutional powers?

Nick Capodice: [00:07:09] The Constitution establishes the Supreme Court and it lays out that justices are appointed by the president with the Senate's approval. But it doesn't say how many justices there should be, though it does specify a chief justice. Originally, there weren't nine justices. There were five in the eighteen hundreds. And the number increased over the years by acts of Congress, cementing it at nine justices in 1869. It's left to the Congress to decide how the lower courts would be set up.

Kathryn DePalo: [00:07:36] There are some specific things that the U.S. Supreme Court is tasked with doing.

Nick Capodice: [00:07:40] One of those is settling disputes between the states.

Kathryn DePalo: [00:07:43] So if New New York wants to sue New Jersey over a particular matter, the Supreme Court is there to settle some of those disputes. Other things, you know, involve cases involving ambassadors and and these particular things. But it's so vague. And really, the Supreme Court is not used as a trial court much anymore.

Nick Capodice: [00:08:03] The Supreme Court is what's called an appellate court, which means that it hears appeals. It's not like a trial court. There's no jury. So someone loses a case in another court. They think it's not fair. They can appeal it up the chain.

Hannah McCarthy: [00:08:15] Appellate appeal.

Nick Capodice: [00:08:18] Yeah.

Hannah McCarthy: [00:08:19] How do cases get to that level where they're ruled upon by the highest court in the land?

Nick Capodice: [00:08:24] Here's Larry Robbins again.

Larry Robbins: [00:08:25] The Supreme Court, to my knowledge, is the only federal court and one of the few kinds of appellate courts that you have no inherent right to be heard in front of. You have to ask their permission and they grant it only very rarely.

Nick Capodice: [00:08:43] It's a long process. And as Larry says, it's super rare, but it helps illustrate the entire federal court system instead of just those nine justices at the top. First off, Hannah, most trials in the U.S. are gonna be in your state court. You stole a car, you got a divorce, you jumped a subway turnstile, state court. Federal courts are for when your case deals with the constitutionality of a law or if the United States is a party in the case or if you broke a federal law. Currently, there are 94 federal trial courts and those are divvied up into 13 circuits, kind of like the NCAA

Hannah McCarthy: [00:09:19] Right. So it's like the West Coast is one circuit.

Nick Capodice: [00:09:22] Right they're the 9th Circuit.

Hannah McCarthy: [00:09:22] And what circuit are we in?

Nick Capodice: [00:09:24] We in New Hampshire are part of the first circuit, which also includes Maine, Rhode Island, Massachusetts and Puerto Rico, interestingly.

Hannah McCarthy: [00:09:31] Yeah.

Nick Capodice: [00:09:32] So if you lose a case in one of those 94 federal courts, you can appeal it to your circuit court. And a court of appeals trial has no jury. Its lawyers arguing in front of a panel of three judges.

Hannah McCarthy: [00:09:44] And if you lose that appeal, what happens then?

Nick Capodice: [00:09:46] We are on the road to getting your case into the Supreme Court.

Larry Robbins: [00:09:49] A case begins with an application to the Supreme Court to hear the case. This has a very fancy name with some with a Latin component because lawyers like to sound as obscure as possible. So it's called a petition for a writ of certiorari,.

Hannah McCarthy: [00:10:08] Petition for a writ of certiorari.

Larry Robbins: [00:10:11] What's called a cert petition for short. And what a cert petition does is it says to the Supreme Court, you should hear my case.

Nick Capodice: [00:10:20] And like Larry said, the Supreme Court does not have to do it.

Larry Robbins: [00:10:23] The vast, vast majority bordering on 98 or 99 percent are denied.

Nick Capodice: [00:10:30] If four of the nine Supreme Court justices agree to hear a case, then it will get a hearing in the Supreme Court. And only about 100 of the nearly 7000 cert petitions are granted.

Hannah McCarthy: [00:10:42] Are there any types of cases that tend to be granted more than others?

Nick Capodice: [00:10:46] Yes. And Larry had some tips on that.

Larry Robbins: [00:10:48] The most important thing you can say to get the Supreme Court interested in granting your case is that there is a question of federal law because the Supreme Court is there to decide federal questions, not state law questions, but federal questions, either questions about federal statutes or the United States Constitution. And what you want to tell the court is, look, there is a important federal question that the courts of appeals, the lower federal courts disagree about.

Nick Capodice: [00:11:22] There's hundreds of publications and Web sites out there that track these circuit splits, where two circuit courts are divided on an issue.

Larry Robbins: [00:11:29] Even better, if you can say there are three circuits on one side of the question and four on the other side of the question. So that, you know, the issue has been widely considered. The question has percolated in the courts of appeals, if you will. That's a Supreme Court lawyer's term of art.

Hannah McCarthy: [00:11:54] I have a question.

Nick Capodice: [00:11:55] Yeah, go ahead.

Hannah McCarthy: [00:11:56] So the Supreme Court, a seemingly passive political body, does have some political power because they can decide what cases they want to hear or not. And presidents campaign on what kind of Supreme Court justice they'll appoint. But if a justice wanted to pass a controversial ruling, they can't bring it up themselves, can they?

Nick Capodice: [00:12:15] No, they cannot.

Kathryn DePalo: [00:12:16] We talk a lot about how much power the court has. And I think some of the power of the court, particularly the U.S. Supreme Court, has significant power in shaping a policy agenda. You know, if there is a ruling that they make, all of a sudden everybody's talking about it. And you point to Roe v. Wade in 1973 and we're still talking about that. It separates our political parties and our system. That's that's power that's setting an agenda. However, the power of the courts is really limited because the Supreme Court, you know, can't be watching, you know, TV and say, what the heck's going on? Let's make a ruling. They have to wait for the process to begin.

Hannah McCarthy: [00:12:50] Ok. So that's how a case gets into the Supreme Court. What happens once you're in there?

Nick Capodice: [00:12:55] Have you actually have you been to the Supreme Court chamber?

Hannah McCarthy: [00:12:57] I have not. Have you?

Nick Capodice: [00:12:58] Not since seventh grade. Anyone can visit it and witness the oral arguments. It's sort of this hallowed date; The first Monday in October until about mid-April, the court hears arguments and they make decisions. And when they're in recess, they choose their next session's cases and they prepare for those. People will wait in line sometimes from 5:00 a.m. like a rock concert to get a seat.

Larry Robbins: [00:13:19] In the years that I was in the SD office, The Supreme Court heard many more cases than they do these days. In those years, which were 1986 to 1990, there were typically four arguments every day that almost I think never happens anymore. The court doesn't grant as many cases as it used to.

Nick Capodice: [00:13:40] After the argument, usually the same week, they meet privately and they vote. The senior justice in the majority decides which justice, with a lot of help from their clerks, is going to write the opinion. Drafts circulate, edits are made. These opinions take time.

Kathryn DePalo: [00:13:56] Mostly most the time there is a majority opinion, whether it's 5 to 4 or 9 to 0. They they often on the court want to not have closely divided opinions because that doesn't look good for the court. Certainly going forward, that might not stand if you have a change, a composition of the court and then justices certainly that disagree can write dissenting opinions. And Ruth Bader Ginsburg, I think, has written some of the more interesting ones, expressing her legal rationale for why she thinks the majority got it wrong and what she thinks would be the proper course. Some write concurring opinions, meaning they're part of the majority, they agree with the majority, but they may disagree on some other point or they may expand on some issues that the court did not agree to, did not address. So they'll talk about those particular things as well.

Nick Capodice: [00:14:47] And while the opinion and dissent lay out the legal reasoning for a decision, the ruling is usually one of these three things: affirm, reverse or remand. Affirm is that the finding from the lower court is upheld. So the petitioner was unsuccessful in their appeal. Reverse is the opposite where the lower court's ruling was in error and it's overturned and the petitioner wins the day. And finally, remand is where the case is sent back to the lower court for a retrial with any irregularities corrected.

Hannah McCarthy: [00:15:20] One thing I'm curious about goes back to something that Kathryn said earlier about a court furthering a political agenda. Does the party of the president who appointed them have influence on their decisions?

Larry Robbins: [00:15:35] Look, I think. I think it's possible to overstate the significance of who appointed a particular judge or justice. I'm close to agreement with my old friend, who is now the Chief Justice, John Roberts, who I think famously responded to one of the present President Trump's tirades about Obama judges by saying there are no Obama judges, there are no Bush judges, there are just judges trying to do their level best. But I don't think, you know, anybody should be so naive as to imagine that political ideology has no impact. It certainly does.

Nick Capodice: [00:16:22] Larry told me one thing about how political ideology affects the law, and it's something I'd never considered before. It's that right now such a high percentage of judges in the lower courts are conservative. And that means there's less disagreement between the circuits on rulings, which in turn means there are fewer cases presented to the Supreme Court for writs of certiorari. And this goes back to what Larry said, that the Supreme Court every year is hearing fewer and fewer cases.

Hannah McCarthy: [00:16:47] Last thing, these justices are appointed for life. They often outlive the presidents who appoint them. And they're not Constitution-interpreting blank vessels. They have strong opinions. Right. So how do they interact with each other when they're off the bench?

Nick Capodice: [00:17:02] Larry refused smartly, I believe, to go on the record about that. But Kathryn had a specific example that I thought was just lovely.

Kathryn DePalo: [00:17:11] The late Justice Scalia of probably one of the most conservative jurists we've had on the U.S. Supreme Court was best friends with Ruth Bader Ginsburg, one of the more liberal justices we've seen in the history of the court. And they had this love of opera together and they would would go see operas and they would have dinner with the spouses. And were really the best of friends. And, you know, you can't find two really more opposite people. A lot of the justices have said, you know, it's not like in Congress where, you know, I'm going to yell at you for having your position. I respect your position. I may not agree with your position, but you have the right to say that and we move on. So I think the fact that they're all trained lawyers and have gone through the advocacy processes in their careers and understand you're going to win some, you're going to lose some, I think is particularly important. And I think that's how the court continues to operate.

CREDITS:

Today’s episode was produced by me Nick Capodice and you Hannah McCarthy, with help from Samantha Searles.

Erika Janik is our Executive Producer and burner of judicial commissions, Maureen McMurray only judges things at midnight

Music in this episode by Tonstartssbandht, thank you, Edwin, Chris Zabriskie, Doug Maxwell, the Grand Affair, Emily Sprague (I love all her stuff), Yung Kartz, and the MIT Symphony Orchestre

Archival Supreme Court audio comes from Oyez, o-y-e-z-.org, the greatest most wonderful resource from Cornell’s legal information institute

Hey, and I got two people to thank. First off, Keith ‘hip’ Hughes whose video on Marbury vs Madison I watched a hundred times check it out, and second, Professor Michael Brown from Emerson College, the guy responsible for the fact that I shall never forget that article 3 section 2 paragraph 1 says, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution”

Civics 101 is made possible in part by the Corporation for Public Broadcasting, and is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Starter Kit: Legislative Branch

There are 535 people who meet in the hallowed halls of Capitol Hill. They go in, legislation comes out. You can watch the machinations of the House and Senate chambers on C-SPAN, you can read their bills online. But what are the rules of engagement? Where does your Senator go every day, and what do they do? What does it mean to represent the American people?

Our guides to the U.S. Legislative branch are Congressman Chris Pappas, Eleanor Powell, Stefani Langehennig and Emmitt Riley.

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

Episode Segments

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TRANSCRIPT

 Please note: this transcript was created using a combination of human and computer transcription – there may be some discrepancies.

Starter Kit: Legislative Branch

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

Congressman Chris Pappas: [00:00:04] You know, as someone who is new on the job. I don't pretend to have all the answers.

Hannah McCarthy: [00:00:09] This is Chris Pappas on the phone with me a few weeks ago. He's a first term congressman in the U.S. House of Representatives, and he also just so happens to be my representative in New Hampshire's 1st Congressional District. I called him up to ask. In short, what he does all day. What does it mean to be a representative? He get voted into office. You head off to Washington and then what?

Congressman Chris Pappas: [00:00:32] You know, there are really two ways that you look to be a good representative. One is by working on legislation here in Washington that can be of help to people back in New Hampshire.

[00:00:46] Another major way is by serving the constituents very directly and helping them with issues that they may have before government.

Hannah McCarthy: [00:00:52] Lawmaking and problem solving, hashing it out with politicians in Washington and then hashing it out with the public in your district. Being a member of Congress is all meetings and handshakes and promises. It's two houses, 535 people, lots of money and very few laws passed. This is the Civics 101 Starter Kit. This is our legislative branch. I'm Hannah McCarthy.

Nick Capodice: [00:01:19] And I'm Nick Capodice.

Hannah McCarthy: [00:01:21] We're going to come back to Chris Pappas, Capitol Hill and this idea of the good representative in just a moment, because the whole point of Congress is representation. But first, let's set the stage. The House, the Senate,.

Nick Capodice: [00:01:35] Two houses, both alike in dignity.

Hannah McCarthy: [00:01:38] Not quite.

Eleanor Powell: [00:01:38] The two chambers actually used to be much more similar originally in Congress. And they've sort of evolved along different paths.

Hannah McCarthy: [00:01:46] Eleanor Powell stopping us from going full. Romeo and Juliet here.

Nick Capodice: [00:01:50] Darn it.

Eleanor Powell: [00:01:50] So they used to both be so these sort of freewheeling chambers without a lot of rules and without a lot of structure. The House used to look a lot more like the Senate.

Hannah McCarthy: [00:01:57] Eleanor Powell is the Booth Fowler, associate professor of political science at the University of Wisconsin, Madison. So constitutionally, states are given two senators each and representatives are apportioned based on population. The first House of Reps had 64 members, all men and the Senate 26 members.

Eleanor Powell: [00:02:16] And over time, they've diverged with the House, had so many people, they had to sort of corral folks and create more rules to have more structure and order the Senate, because they had a small number, a smaller number of delegates sort of maintain their sort of relatively loose structure.

Hannah McCarthy: [00:02:31] So by way of example, here's a vote on the floor of the House.

House Vote: [00:02:35] Those in favor say I. Those opposed say no. The no's have it. The motion is not the speaker. Mr. Speaker, the gentleman from Texas is right. He now as the recorded vote.

Hannah McCarthy: [00:02:50] And here is a vote on the floor of the Senate.

Senate Vote: [00:02:52] Mr. Boehner, Mrs. Blackburn, Mr. Blumenthal. Mr. Blunt. Mr. Booker.

Hannah McCarthy: [00:03:05] So the Senate with its 100 members, is considerably quieter than the 435 member House and trying to corral nearly 500 people with lots of very strong ideas means you need rules, lots of rules.

Eleanor Powell: [00:03:25] The House is so big with 435 members. If you let everyone talk endlessly or even talk a fair bit about any piece of legislation, it would just take you forever to pass it. And so the two chambers evolved along these very different paths where, you know, if you actually look at the text of the rules of the two chambers the House has, rules are twice as large as the Senate's just in terms of the number of words. There's just a lot more structure in place for the majority party to try to control what happens in the House.

Hannah McCarthy: [00:03:52] Now, the internal rules of the House may seem like small potatoes, but changing the structure of legislating can have a massive impact on our laws. It means things as mundane as you know. A representative isn't allowed to walk around while the speaker of the House is talking or take out their cell phone. But it can also mean how long a rep can spend debating a bill or how long they have to read that bill before it goes to debate.

Nick Capodice: [00:04:18] Like if you give legislators more time to read a bill, then you eliminate those situations where a bill gets jammed through the House last minute with a bunch of sneaky stuff thrown in.

Hannah McCarthy: [00:04:27] Exactly. And alternatively, the House could pass a rule that shortens review time to like an hour or two, which would mean that it's easier to get legislation passed without your fellow congresspeople knowing exactly what's in it. One of the first things a new Congress does and we get a new one every two years because representatives search on your terms is ratify the rules for the term. They keep a lot of what the preceding Congress had in place, but they change a lot, too. You do need a two thirds vote to make that happen. But with some concessions to moderates, the majority can get it done. And because the House has this two year turnover, the rules change pretty frequently. Things are a little different in the Senate, though.

Eleanor Powell: [00:05:10] The Senate, by contrast, because senators are elected to six year terms and those are staggered six year terms. So they don't adopt new rules every two years. They essentially their rules continue throughout the course of the Senate. So that means that's actually a little bit harder to change the rules in the Senate, whereas in the House, you can just make whatever shifts you want. At the start of the new Congress, the Senate, you have to decide how you're going to change the rules. And it's pretty hard to technically change the rules.

Nick Capodice: [00:05:41] All right. So if the house's dealer's choice poker where have a majority names the game at the start of every hand.

[00:05:47] The Senate's like a night of Texas Hold'em.

Hannah McCarthy: [00:05:50] Unless, of course, the dealer, a.k.a. the Senate majority leader, opts to go nuclear.

Eleanor Powell: [00:06:07] So the nuclear option, what we've seen in the Senate is actually changing the interpretation of a precedent in terms of how a rule is applied or what the rule applies to. And it turns out you can sort of change the interpretation of a precedent with just a simple majority rule, whereas technically they like do more substantial rule changes. You'd need a larger number of folks on board.

Nick Capodice: [00:06:29] So the Senate majority leader can pretty much turn Texas Hold'em into acey deucey.

Hannah McCarthy: [00:06:34] Final votes on bills in the Senate can pass with a simple majority. But in order to get to that final vote, you need a supermajority that's two thirds vote to end debate on a bill. The minority party will take advantage of this fact and keep debate going endlessly. This is also known as filibustering in order to prevent the final vote from happening. But the Senate majority leader has the power to issue what is called a point of order, where they suspend that two thirds super majority rule in favor of a simple majority of 51 votes. This is the nuclear option. Basically eliminate the minority's stalling tactic so that they can all get to a final vote.

Nick Capodice: [00:07:20] Ok. Because that final vote is a simple majority. It means the majority party can pass legislation they want to without any trouble from the minority party. So wait, why isn't this happening all the time? It basically grants the majority party absolute legislative power.

Hannah McCarthy: [00:07:35] Well, think about it this way. Senators do have those six year terms, but the elections are staggered, so they're constantly being replaced and the majority party can always flip. So if a Democratic majority leader uses the nuclear option, one year of Republican majority leader might use it the next.

Nick Capodice: [00:07:53] That is a dangerous little game to play, right?

Hannah McCarthy: [00:07:56] If there's any doubt as to whether the legislative branch is exciting. Just remember that stuff like that can go down and the stakes are high.

Nick Capodice: [00:08:03] But what are those stakes exactly? Are they voting on the same thing in the House? In the Senate?

Eleanor Powell: [00:08:08] So they do have notably different power. So that the big distinction is in the House, spending bills have to originate in the House and the Senate has the confirmation power. So essentially, anytime a cabinet secretary or a lower level appointment or an ambassador, any of those things that go through sort of advise and consent, the confirmation of the Senate that only goes through the Senate, not the House.

Hannah McCarthy: [00:08:33] The House is supposed to be the people's chamber. It's big, it's rowdy, it's proportional. And the framers gave the people the power of the purse. That's money bills. They're also the ones who bring impeachment charges. And that's not just against the president. It could be any civil officer of the United States. Of course, the Senate does have to confirm all of those money bills and they get to act as jury in impeachment cases. And then they also get to give advice and consent on presidential appointments.

Nick Capodice: [00:09:02] It feels like the House is sort of the shoot from the hip reach for the stars chamber and the Senate is the let's sit down and think this over for a while. Chamber, just like that hot tea cup and saucer metaphor that George Washington may or may not have invented, that the house is the hot tea and the Senate is the saucer that cools the tea.

Hannah McCarthy: [00:09:19] Which makes sense if you think about the House as a microcosm of the country at large and the Senate as a slightly more curated group.

[00:09:27] The House also gets to choose the president. If no candidate gets an electoral majority, the Senate gets to pick the vice president in that situation. Oh, and fun fact. The speaker of the House is actually third in line for the presidency.

Nick Capodice: [00:09:42] That is way more power than I expected the speaker of the House to have. And it brings something up that I would like to get straight. Leadership positions.

Hannah McCarthy: [00:09:50] Yes.

Stefani Langehennig: [00:09:51] It's I would say unquestionably the most important formal duty for the parties is selecting chamber leadership.

Hannah McCarthy: [00:09:57] This is Stephanie Langehennig. She researches U.S. politics and policy. And she gave me the rundown on leadership, starting with the speaker of the House.

Stefani Langehennig: [00:10:06] There are a limited set of kind of official duties that are defined by the chamber rules. So these, you know, include deciding who can speak on the floor and how the agenda is going to be structured and how different information is going to be disseminated and controlled.

Nick Capodice: [00:10:20] Does that mean they can prevent any bills from coming to the floor for a vote whatsoever?

Hannah McCarthy: [00:10:25] Exactly. It's a ton of power. And the speaker who gets elected by the House, the beginning of every term, also has political sway over committee appointments, which is also really big because it's in committee that most bills live or die if you get a good appointment. You can have a say in whether the bills that matter most, you actually make it to the floor.

Stefani Langehennig: [00:10:45] Basically, the remaining party leadership structure in the House in the Senate is determined by the party caucus organizations. So in the House, the majority leader and the majority whip. So the person who's whipping up the votes, it's literally call that for that reason. So you go into, you know, the Democratic Party and try to get them to vote on certain pieces of legislation. We're doing the dirty work. I would say, but they operate just below the speaker in terms of party leadership and then below that are these other secondary leadership positions that are also a part of the broader sort of majority party organizations.

Nick Capodice: [00:11:21] Okay, then who's the speaker of the Senate in the Senate?

Stefani Langehennig: [00:11:23] There is no speaker in the Senate.

[00:11:28] So for the Constitution, the president of the Senate is the vice president of the US. So right now, that's Mike Pence. And so the president of the Senate technically presides over the chambers proceedings, though the rules of the Senate get the holder of this position little authority. It's actually pretty ceremonial, I would say. However, I should also say that in recent years we've seen the president of the Senate or the V.P. come in and be the tiebreaker. Right. So we've seen Mike Pence come to the Hill a few times and break ties in the Senate so they can be really important. However, by and large, they don't really do much.

Hannah McCarthy: [00:12:06] Most of the time, actually, the vice president doesn't even show and the Senate has to appoint an interim presiding officer that they call the pro tempore, a president of the Senate, which actually has a really boring job because at any one time there aren't that many people out on the floor.

Stefani Langehennig: [00:12:21] And so the majority leader is actually the most powerful Senate leader, I think, because the majority party leaders have so much power and they they really dictate how the agenda said.

[00:12:35] They hold an enormous amount of influence in the way that policymaking and just the general flow of the day to day plays out.

Hannah McCarthy: [00:12:45] As we know, the majority leader has that nuclear card in their back pocket. But being in charge of the agenda is a huge deal, too, as we know. It means that you get to decide what's going to be debated on a given day, which means you can also decide what will not be debated. The rest of the structure is pretty similar to the House. So the Senate's also got whips, majority and minority, who help the majority and minority leaders respectively. There are caucus chairs who preside over caucus meetings, conference chairs who organized party members.

Nick Capodice: [00:13:13] Hold on the word caucuses.

[00:13:15] I hear that word all the time and I'm not sure exactly what it means.

Stefani Langehennig: [00:13:18] Caucuses are organizations that can effectively be whatever you want them to be, right? You've got really popular ones like the Blue Dog Democrats or the Congressional Black Caucus or, you know, the Freedom Caucus, things like that, where it's pretty easy to find a membership. Well, I should say the Freedom Caucus is not easy to find a membership on record for. But the Congressional Black Caucus, you can find, you know, a Web site and who's in there? Their caucus. And how many people are in it and what their policy priorities are. But some of these other ones are really pretty low key and hard to get a handle on.

Hannah McCarthy: [00:13:55] In the House, caucuses are formal. They receive recognition and funding from the chamber in the Senate. They're informal and they don't. A caucus is basically a club with a focused interest that meets and discusses how to get legislation passed that benefits that interest. There are loads of caucuses and they cover everything from biomedical research and climate solutions to wrestling and bourbon.

Nick Capodice: [00:14:19] I'd join the Bourbon Caucus.

Hannah McCarthy: [00:14:20] You and me both, pal.

Nick Capodice: [00:14:21] Okay. I feel like I have a pretty decent grasp of how the structure works. But what does the day to day actually look like?

Hannah McCarthy: [00:14:28] I think it's time to bring Congressman Pappas back on.

Congressman Chris Pappas: [00:14:30] You know, the average day in Washington will start at between 8:00 and 9:00 at some point.

[00:14:39] And typically, you know, it might start with a caucus meeting for the Republicans and Democrats have caucuses in the morning.

Hannah McCarthy: [00:14:48] Chris Pappas is co-chair of the LGBT Equality and the New Democrat Coalition caucuses. So he starts the day by meeting with like minded legislators.

[00:14:57] Following that, the House session opens up. And so you might be giving brief remarks on the piece of legislation or something that's happening in your district that you want to raise for your colleagues. Committee meetings happen and sometimes they happen at exactly the same time.

Hannah McCarthy: [00:15:15] If Congress is in session, you show up at the Capitol building and you get to work. Sometimes you're on the floor talking about a bill. Sometimes you're in a committee meeting.

Congressman Chris Pappas: [00:15:23] You might be running from one committee hearing where you want to hear a witness, ask them questions and then head off to another one. Or you can be a part of that discussion, too.

Hannah McCarthy: [00:15:32] Committees are where bills are discussed after they're introduced. Congressman Pappas is on the Veterans Affairs Committee and the Transportation and Infrastructure Committee.

Congressman Chris Pappas: [00:15:41] And then typically in the afternoon is when votes will start happening. So. Well, you know, you've been in committee. There's debate happening on the floor. You know, you stay up to date on that through your staff and then you take votes and sometimes back and last throughout the afternoon and into the evening.

Hannah McCarthy: [00:15:58] All of this, by the way, is sound tracked by a system of coded bells that tell legislators about what's. Going on on the floor, though, it typically falls to staffers to learn the codes and make sure their lawmaker doesn't miss a vote.

Nick Capodice: [00:16:11] I want to learn the bell code. I really do.

Hannah McCarthy: [00:16:14] We'll learn it. Let's learn it. The bell code here.

Congressman Chris Pappas: [00:16:17] We have no staff in DC to act in the district and there are committee staff resources that are available to you to help you understand issues that help you draft legislation or amendments to the bill.

[00:16:31] And so, you know, it's really a force multiplier for you to do your job well and to make sure that you're addressing the concerns of folks back home.

Hannah McCarthy: [00:16:41] Ok. The folks back home. The house has district work, period. The Senate has state work periods. This means they're not in session, but they're supposed to go back home and talk to their constituents. It's easy to think of these as congressional vacations, but during this period, Congressman Pappas is most likely not sitting on a beach with my time. He's back home figuring out what people need and want from him.

Congressman Chris Pappas: [00:17:04] Back in New Hampshire, you know, we're invited to attend things seven days a week and we look to be proactive, to add ways to do outreach and to get me in front of constituents.

[00:17:16] And so, yeah, that doesn't really seem to be a typical day there.

[00:17:20] But whatever we're called on to show up and to engage with folks, we're ready and willing to do it.

Nick Capodice: [00:17:26] Okay. Hannah, representation. We come back to right where we started. These legislators are supposed to be listening to us, reflecting what we want and giving us what we want.

Hannah McCarthy: [00:17:36] Right. That's the idea. And I think that this is where things can kind of fall apart. You know, I think of some of these all white, all male state legislatures that often have women and people of color saying, hey, you know, it's not fair that you get to make my laws. You don't reflect me.

Congressman Chris Pappas: [00:17:52] It's critical that here in Washington we have a reflection of the people of this country, the diversity that exists around this nation and what people are looking for out of the public policy making process.

Nick Capodice: [00:18:05] But at the federal level, we've got our most diverse legislature yet. Right.

Hannah McCarthy: [00:18:09] Right. But I guess my question is, what does a reflection of the people really mean? Just because I or a person of color or a member of the LGBTQ community or a member of any other number of minority groups can look at our House or Senate and find someone who looks like them or has a similar background. Does that mean that Congress is really, truly representing this country?

Emmitt Riley: [00:18:34] If we were to dissect the concept of representation, the first concept, we have to talk about his formal representation. This is Emmett Riley. No, I'm an assistant professor of Africana Studies and Political Science, and I'm also affiliated faculty with the Peace and Conflict Studies Program at DePaul University in Green Castle, Indiana.

Hannah McCarthy: [00:18:55] I called Emmett up to well, first, just establish our terms. You know, what does representation actually mean?

Emmitt Riley: [00:19:01] Formal representation. And that is the notion that anyone who is elected to an institution formally represents a person. This has nothing to do with their policy preferences. It has nothing to do with their race, their gender. This is the notion that by virtue of being elected to a certain institution, I am formally representing the American people. Then we go a step farther and begin to look at what we call descriptive representation, or most textbooks will call these sociological representation. And that is the degree to which people who are elected share features that we have, such as are race or gender or ethnicity, our heritage, our sexuality, all of those things.

Hannah McCarthy: [00:19:41] So now that we've got the most diverse Congress ever, does that mean that we're really representing, really reflecting the population's wants and needs at the legislative level?

Emmitt Riley: [00:19:51] And so when we look at that and we tie this into the political institution of the United States Congress, we see that the diversity that is reflected within the American population is represented in Congress, despite the fact that this last Congress that we elected is the most diverse Congress in our in congressional history. It still does not mirror the population that we have in the United States.

Hannah McCarthy: [00:20:18] What it saying here is that even though there are more people of color and women in Congress, it's still an institution that is predominantly white and upper class, which is not what America looks like.

Nick Capodice: [00:20:29] So what would happen if Congress did look more like the American population?

Emmitt Riley: [00:20:32] The diversity in the makeup of the composition of an institution has profound consequences on the types of policies that are produced. That is, what types of policies do women pursue if they're given a chance to be to be represented in Congress? Do those interests intersect with black interests or other minority interests? And so the research overwhelmingly supports the notion that having a diverse body in Congress typically leads to a more diversity in the outputs in the type of bills that are introduced.

Hannah McCarthy: [00:21:04] And representation can mean something more than just the bills introduced.

[00:21:10] It can affect us as voters.

Emmitt Riley: [00:21:13] We also have to look at the impact that this representation has on levels of political engagement, in terms of voting, in terms of registration, in terms of campaigning, in terms of donating to campaigns. And so far, people are more likely to vote if there is a candidate in an election that looks like them, that shares their background, that shares their interests or have similar political interests that they have. And so we note it in particular in our scholarship that the more minorities who are running for office typically increases the number of minorities who are engaged.

Nick Capodice: [00:21:45] Okay.

[00:21:45] So having a diverse Congress can mean engaging a more diverse population.

Hannah McCarthy: [00:21:49] And a more engaged, diverse population means more votes for people who really represent us, which ultimately is what this whole mess is about. The legislative branch, as high and mighty and distant as it seems is supposed to be us. And the louder we are and the more we demand that it reflects us, the more it actually does.

Nick Capodice: [00:22:12] So as per usual, Hannah, your advice is get out there and vote.

Hannah McCarthy: [00:22:15] Yeah. Strength in numbers, my friend. Please listen carefully.

Hannah McCarthy: [00:22:24] Now, if you're sitting there thinking to yourself, that's it. You forgot the whole lawmaking part of being a legislator, Hanna, and you'll never work in this town again. Well, pump the brakes. Dear listener, because we've got a whole episode on how a bill becomes a law. In this starter kit, now that you know the framework of Congress, you're ready to learn what goes on inside of it. This episode of Civics, when one was produced by me, Hannah McCarthy with Nick Capodice.

Nick Capodice: [00:22:47] Editing help from Jackie Fulton. Erica Janik is the one who schedules back to back committee meetings and skips them all day to hang out with her dog.

Hannah McCarthy: [00:22:54] Maureen McMurray thinks rules were meant to be broken.

Nick Capodice: [00:22:57] Music in this episode by Yung Kartz, Quincas Moreira, Shaolin Dub, Christian Bjoerklund, Blue Dot Sessions and Jazzhar.

Hannah McCarthy: [00:23:04] There's a lot more to see and hear at our website, including our newsletter subscription sign up every other week. We put all the fun stuff that does not make it into the episodes into our extra credit newsletter that is at civics one to one podcast dot org slash extra credit.

Nick Capodice: [00:23:17] Civics 101 is made possible in part by the Corporation for Public Broadcasting and is a production of NHPR.

[00:23:23] New Hampshire Public Radio.

[00:23:24] Dude we're gonna make a game called Senate Bells.

Hannah McCarthy: [00:23:36] That sounds really boring.

Nick Capodice: [00:23:36] It's really called you don't have the bell. The Tin Tin adulation, the Tin Tin adulation of the Senate bells bells . Was it the Senate we're in or in the House? We're in the House bells.

Hannah McCarthy: [00:23:47] It's all Capitol Hill.

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Made possible in part by the Corporation for Public Broadcasting.

Starter Kit: Executive Branch

In this episode of our Starter Kit series, we explore the powers of the President, both constitutional and extra-constitutional. What can a president do? How long do a president’s actions reverberate? Why don’t we do treaties anymore?

Also, we’ve got a super inefficient mnemonic device to remember the 15 executive departments in the order of their creation.

Featuring the voices of Lisa Manheim, professor at UW School of Law and co-author of The Limits of Presidential Power, and Kathryn DePalo, professor at Florida International University and past president of the Florida Political Science Association.

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

Episode segments

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TRANSCRIPT

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

Starter Kit: Executive Branch

[00:00:04] (Presidential Oath of Office)

[00:00:26] Congratulations Mr. President.

[00:00:43] I've got a pen to take executive actions where Congress won't.

[00:00:46] I'm announcing my choice today, and will submit Judge Stevens name formally.

[00:00:51] What I'm going to do when I veto this is to say yes I'm going to send this bill right back.

[00:00:55] I'm signing today an executive order establishing the President's Task Force on Victims of Crime

Nick Capodice: [00:01:05] Ring a ding ding. What if the president picks up.

[00:01:09] Please continue to hold.

Hannah McCarthy: [00:01:14] What on earth is that.

Nick Capodice: [00:01:15] I called the president to make a comment. And I was on hold for about 20 minutes.

Nick Capodice: [00:01:23] Starts off the same way. Much like presidencies. Got hope at first. Comes along with a little trouble along the way. But the next thing you know. A Volunteer will answer. And take my comment to the president.

[00:01:51] Comment Line volunteer operators are currently assisting other callers.

Hannah McCarthy: [00:01:55] Did a volunteer actually end up talking to you.

Nick Capodice: [00:01:58] Yes one did and she told me that my comments would be delivered to the West Wing. Because no office is untouchable by the American citizen. I hope.

Nick Capodice: [00:02:09] I'm not Captain E.J.

Hannah McCarthy: [00:02:11] I'm Hannah McCarthy.

Nick Capodice: [00:02:12] And this is Civics 101, our starter kit series, and today we are tackling the most powerful job in the world. Or, as President James K. Polk put it, no bed of roses. We're talking about the Executive Branch.

Hannah McCarthy: [00:02:26] It's one of my favorite questions that the listener submitted. "What does the president do?"

Nick Capodice: [00:02:32] So when I think of the Executive branch, of course the first thing I think about is the president. But there is so much more. I spoke with Lisa Manheim. She's a lawyer and professor at University of Washington School of Law and co-author of The Limits of Presidential Power.

Lisa Manheim: [00:02:47] The executive branch has about has several million people working in it and there are about 2 million people who work as civilians within the executive branch. And then there are about 2 million people who work in the military.

Hannah McCarthy: [00:03:00] Over 4 million.

Nick Capodice: [00:03:02] Yeah. And the president is at the very top. The Constitution gives the president the power to execute the laws.

Lisa Manheim: [00:03:10] And one way of understanding what that is is it is the power to take the laws that Congress has passed, and they might relate to food safety or education or national security, and those laws need to be executed. They need to be carried out and enforced. And so the president via the constitution has the power to execute those laws. And what that refers to in practice is really helping to oversee a an executive branch that consists of literally millions of people who are doing the work of carrying out those laws passed by Congress.

Nick Capodice: [00:03:45] So this includes federal law enforcement. This is like the FBI and the Department of Justice employees, but also every member of the civil service. This is every post office worker, every national park employee. By contrast the legislative and judicial branches each have about 30000. The Executive branch is the single largest employer in the world. Twice as many employees as Wal-Mart. There are hundreds of agencies that fall within the 15 departments of the executive branch. All 15 of these departments can should and will get their own episode. But just so you know them all, you know I'm a sucker for a good mnemonic right Hannah?

Hannah McCarthy: [00:04:22] I do.

Nick Capodice: [00:04:23] Here's a super impractical one that I adore. See that dog jump in a circle. Leave her house to entertain educated veterans homes.

Hannah McCarthy: [00:04:31] See that dog jump in a circle. Leave her house to entertain educated veterans homes.

[00:04:37] Now you're on the trolley. STDJIACLEHTEEVH, fifteen federal departments in the order of their creation. S state department, handling our relationship with foreign countries. T. Treasury. They make the money they collect taxes they include the IRS D defense. That's our largest department. J. Justice. They enforce the laws that protect public safety. This includes the FBI and U.S. Marshals. I, interior, manages the conservation of our land. This includes the National Parks, A Agriculture USDA they oversee farming food. C, commerce. They promote our economy and handle international trade. L labor, our workforce. H, Health and Human Services. That includes the FDA and the CDC. They also manage medicare and medicaid. H, Housing and Urban Development, HUD. They address national housing needs. T, Transportation. That's federal highways and the Federal Aviation Administration. E energy, the DOE, they manage our energy and they research better ways to make it. The next E's education. You know what they do. V, veterans affairs, benefit programs for those who've served in the military, and finally Homeland Security, whose job is to prevent and disrupt terrorist attacks within the United States.

Hannah McCarthy: [00:05:43] Right. Homeland Security. That's the newest one. It was just after September 11th.

Nick Capodice: [00:05:47] And the president hires, with the Senate's approval, and fires, without necessarily, political appointees to these departments.

Hannah McCarthy: [00:05:55] Wait before you jump into the president. I think that you are missing something.

Nick Capodice: [00:06:00] What? Oh. The vice president.

Nick Capodice: [00:06:10] All right. To be fair it's easy to overlook the vice president because the job just doesn't come with a lot of official duties. The veep is next in succession in case anything happens to the president, a heartbeat away from the Oval Office. They also serve as president of the Senate. Breaking tie votes when necessary. And that's happened about 270 times. And they preside over nonpresidential impeachment trials. Interestingly when it's a presidential impeachment it's the chief justice of the Supreme Court that runs the trial. Can you imagine that. And then over the last century the role the vice president has shifted a bit more towards domestic and foreign policy and sort of less sitting in that seat in the Senate as the president.

Hannah McCarthy: [00:06:52] Ok. Thank you. So we've talked about the millions in the executive branch but what does the president do?

Nick Capodice: [00:06:59] OK. There are constitutional powers of the president as well as more political powers. So let's start with what's written on the parchment. Here is Lisa Manheim again.

Lisa Manheim: [00:07:10] The Constitution creates the office of the president but it's sort of surprisingly has relatively little to say in the actual text about the range of different powers that a president in particular President these days has and is able to execute. That being said there are, the Constitution does include a relatively short list of specific powers that it grants the president and three of the most important relate to laws that Congress pass, who's appointed in the federal government, and then finally issues that relate to foreign affairs or to the military.

Hannah McCarthy: [00:07:45] The first of those three powers is signing bills into law or vetoing them.

Nick Capodice: [00:07:50] Which Congress can override with a two thirds majority in both houses.

Hannah McCarthy: [00:07:53] The second is appointing people to powerful positions in those 15 departments.

Nick Capodice: [00:07:58] Including Supreme Court justices. There are about 4000 positions that the president appoints. Twelve hundred of which require Senate approval.

Hannah McCarthy: [00:08:06] Ok. And the third the Foreign Affairs and the military that's forming treaties with other nations and being commander in chief of the armed forces.

Nick Capodice: [00:08:14] Right. And there's one more constitutional power that the president "shall from time to time give the Congress Information of the state of the Union," which they used to call the Annual Address and it used to be a written administrative report on what all the many executive employees had been up to. But radio and television have altered it to the State of the Union that we know and love today.

[00:08:34] Mr. Speaker. the president. of the United States.

Hannah McCarthy: [00:08:39] I've always thought that when you look at it on the page right there in Article 2 of the Constitution, for a job that's called one of the most powerful in the world, there aren't that many powers and they're all checked. The president appoints nominees but the Senate approves them. The president can create or sign treaties but two thirds of the Senate has to concur. Did the founders intentionally make it a not very powerful position?

Nick Capodice: [00:09:07] Well let's duck into that hot room in Philadelphia at the Constitutional convention. Because they all knew they wanted an executive branch, which the articles of confederation did not have. And they were like, We want someone like the guy running these proceedings, someone who can also lead the troops into battle. Like General George Washington. Like that guy.

Hannah McCarthy: [00:09:27] So they picked the candidate and then they wrote the job description.

Nick Capodice: [00:09:31] Yes. And that's one reason for our unique way that the branches divvy up war powers.

Kathryn DePalo: [00:09:36] The Constitution if you want to talk about separation of powers checks and balances there you know has given Congress so the people's branch right in the people's house the ability to declare a war.

Nick Capodice: [00:09:47] This is Kathryn DePalo, she's a political science professor at Florida International University.

Kathryn DePalo: [00:09:52] And that is very specific language but also gave the president of the United States the power as commander in chief. And so once Congress declared the war, the president then was supposed to lead the troops if you will. But that really hasn't happened at all. I mean the last time we declared war was in World War 2.

Nick Capodice: [00:10:09] There has been a consistent give and take between the legislative and executive branches when it comes to war.

Kathryn DePalo: [00:10:15] One of the things I find actually fascinating is the War Powers Resolution or the War Powers Act of 1973. And that was sort of the height of Vietnam. Everyone hated this war including members of Congress.

[00:10:34] Under the Constitution, you can end the war, not another dime for this war!

Kathryn DePalo: [00:10:41] And so what they wanted to do was try to take power away from the presidency. And so they passed this law that basically says the president cannot unilaterally send troops wherever he wants to. Just because he's commander in chief that you know the president has to inform Congress within 48 hours Congress, within a 60 day period has to decide if they want to continue with this war and continue to fund this this particular war. But a lot of wars aside from some of our recent war certainly in Afghanistan and Iraq really wrapped up very quickly. You know we didn't declare war you know when we went into Iraq the first time. And so the president really has a lot of the ability to send the troops and then say to Congress, oh well what are you going to do now. Right? These troops are here. So there's a lot of these things that are extra constitutional that would suggest there's a strict separation of powers here but really especially with the president of the United States and reality can do a lot.

Hannah McCarthy: [00:11:35] It sounds like we are getting into the territory of executive branch loopholes.

Nick Capodice: [00:11:41] Did you ever see these Saturday Night Live parody of the I'm just a bill song from Schoolhouse Rock with the executive order?

Hannah McCarthy: [00:11:45]  No!

[00:11:49] I'm an executive order and I pretty much just happen.

Kathryn DePalo: [00:11:56] Well I think human nature is we always seek out those loopholes. Right. So so of course there there are certainly loopholes and you know to talk about the presidency certainly to go around Congress. You know especially if the president's having difficulty getting Congress passed desired legislation the president as the chief executive of the executive bureaucracy can issue executive orders and basically make a whole lot of changes. You know President Obama couldn't get some immigration policy passed through Congress so he signs executive orders like the DREAM Act which which kept a lot of these kids who had graduated from American high schools to be able to stay here. And that's an order really to get to the the executive branch and to ICE. And so you can essentially make a lot of policy in those particular ways to be official.

Nick Capodice: [00:12:45] Executive orders need to be signed and recorded in the Federal Register and each of them gets an official number. I love executive orders they're fascinating. And every single president has issued them with the solitary exception of William Henry Harrison.

Hannah McCarthy: [00:12:57] To be fair he did die 31 days into office he probably would have done a few.

Nick Capodice: [00:13:02] We don't know that, we'll never know for sure. George Washington, he did eight. Lincoln's Emancipation Proclamation of January 1863 was technically an executive order. The record for those so far is FDR Franklin Delano Roosevelt three thousand five hundred twenty two executive orders, one of those was executive order 7 0 3 4 which created the Works Progress Administration, one of the primary ways FDR sought to combat the Great Depression. But as of very recently, determining what is an executive order has become a bit muddy.

Lisa Manheim: [00:13:35] When President Trump publishes a tweet, there is an argument that that is itself an executive order. It's not a formal executive order. It's not being published in the Federal Register. But legally speaking if the president issues a clear direction and does so in the form of a tweet that has the same legal effect as a formal executive order that's published in the Federal Register.

Hannah McCarthy: [00:13:59] So executive orders are just the president telling the people of the United States and all three branches of government their instructions.

Nick Capodice: [00:14:08] Yes. And these executive orders can still be blocked by the Supreme Court or by Congress if they pass a bill invalidating the order. And executive orders are different from executive agreements. Those are agreements that the president enters into with a foreign country.

Lisa Manheim: [00:14:23] And so if a question is Well why would a President ever enter into an executive agreement which he can do on his own rather than deciding to involve the Senate and enter into a treaty. There are basically two answers. One is that actually Presidents very rarely do enter into treaties now in part because they take this other route of entering into executive agreement. The other answer is that if a president enters into executive agreement rather than into a treaty then it's much easier for the next president if he wants to to exit the executive agreement than it is to executive exit a treaty. And that's one of the reasons why President Trump was able to start the unwinding process for the Paris agreement about climate change even though President Obama had just entered into it.

Nick Capodice: [00:15:13] George W. Bush he submitted about 100 treaties during his administration and most of them were approved by the Senate. And that's been pretty much the average since the beginning. By contrast Obama submitted 38. Only 15 of which were approved. However executive agreements which require no other branch involvement they are on the rise and American presidents have issued about 18000 of those.

Hannah McCarthy: [00:15:38] I'm curious as to the limits of these executive orders and agreements. Can a president order anything they want.

Lisa Manheim: [00:15:49] The fundamental principle that's underlying all this is the idea that if the president takes an official action there has to be some legal source of authority and the legal source of authority has to come from either a law passed by Congress or from the Constitution itself. The executive agreement is the tool the executive order is the tool and it's something in a Congress in one of Congress's laws or in the Courts Union itself that provides the basis for the president using that tool.

Hannah McCarthy: [00:16:20] One last thing I've got to know about. How persistent are the effects of precedent because if you love a president's agenda you might want them to issue as many orders and agreements as possible. Or if you loathe an administration you want to elect someone who will throw everything out and start anew. How long do a president's actions reverberate.

Nick Capodice: [00:16:44] That is an excellent question.

Lisa Manheim: [00:16:46] Legally speaking one way of understanding how permanent a president's actions are is to think about the process the president used to take those actions because for the most part the harder it is in terms of the process for a president is to take an action the harder it is in the future going to be for a president to unwind that same action. So for example if the president is, were to sign a bill into law, that means that two houses of Congress came together and agreed on the same statutory language which they then present to the president and the president signs it into law. For the next president to make that law go away? The president on his own cannot eliminate that prior law. By contrast if the president takes some sort of action all on his own. So if the president decides I'm going to issue an executive order directing people in my own administration to try to adopt certain enforcement priorities when it comes to immigration or if the president says I'm going to enter into an agreement with a foreign country and I'm not going to involve the Senate, I'm not gonna involve Congress at all I'm just going to sign it on my own. If the president does something on his own then generally speaking as a legal matter the next president can come in and unwind that on his own.

Nick Capodice: [00:18:07] There are different ways you can be a president you can be a military figurehead like George Washington who didn't necessarily even want the job, or you can be like Eisenhower or Kennedy you work like crazy to broker deals with the House and Senate getting a ton of laws passed and treaties signed or you can say forget that I'm gonna just go it alone and use those presidential powers. But again Congress can pass legislation to overturn an executive order and the courts can deem them unconstitutional. For example Donald Trump's travel ban was an executive order that a judge ruled against the law and no individual action on the part of the president could change that.

Hannah McCarthy: [00:18:47] Until he wrote another executive order which the Supreme Court upheld.

Nick Capodice: [00:18:55] Yeah. There's sort of one last vestige of the power of the president that Lisa told me about. And the thing is it depends on how powerful we let the president be.

Lisa Manheim: [00:19:05] Given the role that the president plays as in a sense the single person that the news can go to that people can look to that foreign countries can can refer to. In thinking about what the United States government means and what it's doing in light of that position that the president plays. The president has over time gained an enormous amount of in a sense political power.

Nick Capodice: [00:19:33] And this didn't happen overnight. Administration to administration presidents have set precedent that gives the office more power. And we have no idea how that will evolve in the next 250 years. But I will say presidents often add tools to their executive toolbox but very rarely take them out.

Nick Capodice: [00:19:59] Well that'll just about do it for today's episode in the executive branch. Today's episode was produced by me Nick Capodice with you Hannah McCarthy thank you.

Hannah McCarthy: [00:20:06] Our staff. You're welcome. Our staff includes Jackie Helbert and Ben Henry.

Hannah McCarthy: [00:20:10] Erika Janik is our executive producer which means she executes the episode and Maureen MacMurray, whose job description was written after she was hired.

Nick Capodice: [00:20:18] Music In this episode is by supercontinent, pictures of a floating world, Bisou, Daniel Birch, Chris Zabriskie, Ask Again, Asura, and the United States Coast Guard band. This here is Tone Ranger.

Hannah McCarthy: [00:20:28] Civics 101 is made possible in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

Nick Capodice: [00:20:36] And don't you forget you too can call the president to make a comment. 2 0 2 4 5 6 1 1 1 1.

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Made possible in part by the Corporation for Public Broadcasting.

Starter Kit: Checks and Balances

We exist in a delicate balance. Ours is a system designed to counterweight itself, to stave off the power grabs that entice even the fairest of us all. The U.S. government is comprised of humans, not angels, so each branch has the power to stop the other from going to far. The only catch being, of course, they have to actually exercise that power.

In this episode, with the inimitable Kim Wehle as our guide, we learn what those checks actually are, and how the Executive, Legislative and Judicial branches (ostensibly) keep things democratic.

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

Episode Segments

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TRANSCRIPT

Please note: this transcript was created using a combination of machine and human transcribing. Discrepancies may occur.

CPB : [00:00:00.09] Civics 101 is supported in part by the Corporation for Public Broadcasting.

Hannah McCarthy: [00:00:05.83] When we decided we'd had enough of our own government and went to war and built a whole new government. The guiding principle was no king.

Kim Wehle: [00:00:19.9] So the framers of the Constitution were upset about a monarchy.

Hannah McCarthy: [00:00:25.0] This is Kim Wehle by the way.

Kim Wehle: [00:00:26.5] The Constitution basically took the concept of a monarchy and broke it into what I say almost like a three headed monster or a three handed you know Angel. However you want to see it and so instead of having one boss that would be a king or a CEO of a corporation even the American Constitution separated the government into three parts.

Hannah McCarthy: [00:00:48.73] That's right. America is basically Cerberus with wings that three headed hound that guards the gates of the underworld. You've got power carefully divided between each head all supporting the health of one body.

Kim Wehle: [00:01:02.05] One is the executive branch which is the president.

Archival: [00:01:04.87] The president of the United States.

Kim Wehle: [00:01:07.96] One is the Congress the legislative branch.

Archival: [00:01:10.99] Members of Congress.

Kim Wehle: [00:01:12.4] And the third would be the judiciary the judicial branch which are federal judges.

Archival: [00:01:16.75] The court is now sitting.

Hannah McCarthy: [00:01:19.48] If you could get a look at this angel beast's DNA you'd see a basic order to it all. A blueprint for the operations of this complex animal otherwise known as the U.S. government.

[00:01:31.69] The thing that has kept it alive for two centuries and counting written into our genetic code from the beginning today on civics 101.

[00:01:44.2] Checks and balances because the people who run this government are no angels. I'm Hannah McCarthy.

Nick Capodice: [00:01:50.35] I'm going to Capitol.

Hannah McCarthy: [00:01:51.34] And this is the civics 101 starter kit. The basic knowledge you need to understand the rest of American democracy.

Nick Capodice: [00:01:58.3] Now it seems a tangled web but you promised me Hannah that there is a structure there underneath the headlines. The tweeting and the campaigning and the arguing there's a foundation at the bottom of it all that keeps the whole thing from toppling over.

Hannah McCarthy: [00:02:11.11] There is a swear. It's why I called up Kim Wehle to try to figure out how that system of checks and balances is supposed to operate and how it actually operates. Kim by the way is a law professor at the Baltimore University School of Law and author of a brand new book on our favorite subject to Nick how to read the Constitution and why we asked her what exactly we mean when we talk about checks.

Kim Wehle: [00:02:38.65] It means if any one of those branches violates the law or does something that is improper or not consistent with what the public wants there are mechanisms or levers in the Constitution that the other two branches can pull in order to basically impose consequences on the bad branch.

Hannah McCarthy: [00:02:58.84] If you think of each head of the government beast as having its own crown that crown vests special powers in that particular head. Powers that allow them to do their own thing and powers that allow them to play watchdog for the other branches.

Nick Capodice: [00:03:13.81] What branch you want to do first let's do legislative branch.

Archival: [00:03:17.26] Congress.

Kim Wehle: [00:03:18.61] Legislate branch means Congress what is a law.

[00:03:21.97] A law is a rule that governs general behavior.

[00:03:26.77] Thou shalt not discriminate on the basis of race. That would be a law that is something that Congress decided and passed through both houses and that is then signed by the president to become a law.

Hannah McCarthy: [00:03:40.48] But let's say Congress tries to pass a law that's questionable beast number two rears its head.

Archival: [00:03:47.95] The President.

Kim Wehle: [00:03:49.72] So the president has a check on that process the president can veto what Congress has done. That would be one check for example.

Nick Capodice: [00:03:58.31] And so the president can stop Congress from doing basically the one thing that it really does.

Hannah McCarthy: [00:04:02.5] Except Congress can then veto the veto.

[00:04:06.34] It's called a veto override and they can go over the president's head and pass their law anyway even if that law is unconstitutional. But this is a three headed dog remember.

[00:04:17.68] And that third head is a little more stoic.

Archival: [00:04:19.78] The courts.

Kim Wehle: [00:04:22.21] The court can then can strike down that law and hold it unconstitutional so that's an example of how the legislative branch is checked by both other branches of the federal government.

Hannah McCarthy: [00:04:32.62] Judicial review is not a constitutional power. By the way it's the result of one of the end all be all Supreme Court cases Marbury vs. Madison in 1883 in which the Supreme Court established its own power to declare a law unconstitutional.

Nick Capodice: [00:04:49.33] That is an insane amount of power when you think about it the Supreme Court can make itself more powerful like it took its superpower crown and made it even more super.

Hannah McCarthy: [00:04:59.35] But lest we forget where there's power.

Archival: [00:05:01.54] The court.

Hannah McCarthy: [00:05:02.36] There is a check.

Archival: [00:05:04.98] The President.

Kim Wehle: [00:05:04.98] The executive branch checks judges is to decide what cases to bring.

Nick Capodice: [00:05:10.38] So you can't rule on something unless somebody asks you to.

Hannah McCarthy: [00:05:13.53] Precisely. If federal law is violated it is the executive branch's job to prosecute through the Department of Justice. The DOJ they do that at the district level and then the circuit level after which point a disappointed plaintiff can appeal to the Supreme Court. But what if a federal prosecutor chooses not to take a case to begin with chooses not to prosecute something not to bring it into the court system at all. That's called prosecutorial discretion and it can keep cases away from the Supreme Court.

Nick Capodice: [00:05:50.03] Right. And the president is the one who appoints federal judges.

Hannah McCarthy: [00:05:52.41] With congressional approval.

[00:05:54.36] But yes when it comes to removing someone from the Supreme Court though that is a horse of a different color.

Kim Wehle: [00:06:03.83] Judges can be impeached. Federal judges just like the president can be impeached. Congress can narrow the kinds of cases that federal judges can hear. They can say listen you can only I'm exaggerating but you can only hear disputes involving fights with blue cars versus red cars. That's a that's not an accurate example. But the judges. what's called jurisdiction is defined by the United States Congress. The Congress could also decide we don't want federal judges under the Constitution. The only judges that are required as the Supreme Court the United States or Congress could say listen we want all these cases to go to the states. We are going to abolish the entire federal judiciary.

[00:06:41.18] Other than the Supreme Court that literally would be constitutional.

Hannah McCarthy: [00:06:43.13] By the way the same act that established the federal court system the judiciary active 1789 established congressional power to regulate jurisdiction.

Nick Capodice: [00:06:52.88] Another branch making its own super powers more super.

[00:06:56.99] You got Supreme Court saying We decide what's constitutional or not. And you've got Congress saying we decide what you can rule on.

Hannah McCarthy: [00:07:04.1] And then you've got that third head of the government beast. We might want to think of that as the most enigmatic of the branches the executive presided over by the president.

Archival: [00:07:12.92] The president.

Hannah McCarthy: [00:07:14.63] The president can't make law or officially rule on whether law is constitutional. A president's job according to the oath of office is to preserve protect and defend the Constitution to make sure that law is upheld. But being in command of the enormous executive branch also means commanding the military the Treasury the Department of Justice and on and on. Most of the power there is implicit so checks are everything. When it comes to presidential reach and most of that checking lies with Congress.

Kim Wehle: [00:07:48.92] Well the number one thing we heard in the news right now is impeachment. If the executive branch the president commits high crimes and misdemeanors or even members within the president's cabinet the legislative branch can basically have a trial in the Congress and impeach that is basically fire the wrongdoer.

Hannah McCarthy: [00:08:06.44] Short of this fire the president approach Congress can cause a lot of slowdown or flat failure of the president's agenda.

Kim Wehle: [00:08:15.86] They can control the executive branch through the budget process. They can say listen we're going to shrink the attorney general's budget we're not going to give the Department of Justice enough money to actually execute the laws. That's going to limit their ability to go off the rails so to speak.

Nick Capodice: [00:08:32.09] Ah yes is the all important power of the purse. Yeah.

Hannah McCarthy: [00:08:35.18] Congress basically controls the president's allowance because they're the ones approving the budget or making appropriations for certain bills. You can't wield overbearing prosecutorial power if Congress underfunded the attorney general's budget and let's say it's a matter of the president overstepping some bounds. But Congress isn't looking to impeach.

[00:08:56.69] They can still issue a check of sorts because they make the laws.

Kim Wehle: [00:09:00.44] Every branch gets their papers graded one way that Congress grades the the papers of the executive branch is to hold hearings. The hearings are for two reasons. One to find out whether Congress needs to do more checking by passing a law that limits the executive branch's power which is well within its authority under Article 1 of the Constitution that vests a legislative power in the Congress and the second thing is to just let the American public know what's going on.

Hannah McCarthy: [00:09:31.1] Limiting presidential power like this usually comes after Congress feels like the president has gone too far. Like maybe he didn't act unconstitutionally but that doesn't mean it wasn't wrong like when FDR served for 12 years straight and Congress finally passed the 22nd Amendment and made term limits an official thing.

Nick Capodice: [00:09:51.26] Right. Especially in a nation founded on that no king principle. I'm thinking of the War Powers Act Truman and Kennedy entered wars but they didn't actually declare war. So they sidestepped Congress and Congress claps back and passed a law that said presidents are supposed to get approval for most conflict engagement regardless of what they call it.

Hannah McCarthy: [00:10:10.25] But in those cases I mean in part because laws take so long to come to fruition. The presidents who got a little too big for their britches they were already out of the White House by the time those laws were passed. So what happens when we need a legal decision immediately. This is where that last black robe clad Cerberus head gets to speak up because the Supreme Court can declare executive actions unconstitutional for example. In 1996 President Bill Clinton wanted the Paula Jones sexual harassment lawsuit dismissed on the grounds of presidential immunity.

Archival: [00:10:48.35] The president.

[00:10:48.47] The Supreme Court ruled that a sitting president does not have immunity from civil litigation while in office a court because they get to decide what is constitutional or not. Basically. Clinton eventually ended up in impeachment proceedings.

Nick Capodice: [00:11:04.26] But what happens if the president refuses to follow that ruling. Like when Abraham Lincoln suspended habeas corpus during the Civil War and the Supreme Court said no you can't hold people indefinitely without trial just because they're disloyal. And Lincoln just ignored them ignored the Supreme Court. That's just completely illegal.

Hannah McCarthy: [00:11:21.84] Yeah. And the thing is that this does happen. And in a case like that Congress could have impeach the president. That would have technically been a proper course of action but they didn't. And to be fair most of us are probably grateful for that Lincoln prevailed and is considered to have been one of the nation's greatest presidents. But it's an important moment to bring up because what if the check system fails to engage. What if Congress and the judiciary or Congress and the president agree to let the other do what they want. Just because they're pals. What if one of these heads is asleep while the other two are just running amok.

Kim Wehle: [00:12:00.54] Another example I use is you know a speed camera. There's one on Connecticut Avenue I live outside of Washington D.C. and there's a couple blocks on Connecticut Avenue where everyone slows down and goes below 30 miles an hour because there's a speed camera. Once it's in the rearview mirror. People speed up. So same with the Constitution. If there's not a speed camera catching people and sending them the dreaded ticket in the mail with a little you know snapshot of your of your license plate.

[00:12:28.23] People are going to speed and the president.

Archival: [00:12:30.03] The president.

Kim Wehle: [00:12:30.66] The Congress.

Archival: [00:12:31.47] Congress.

Kim Wehle: [00:12:32.76] Federal judges.

Archival: [00:12:33.5] The court.

Kim Wehle: [00:12:33.6] They'll all blow through the speed limits.

[00:12:36.42] If there aren't consequences and that's the case for Republicans Democrats independent. It doesn't matter who is in the White House or who's in Congress. What I'm saying what matters is protecting the institution. So if if those in power shift whoever's in power is checked whoever's in power has consequences for bad behavior.

Hannah McCarthy: [00:12:57.3] Turns out the three headed government monster actually comes with a leash and the person holding that leash it's you they actually have to take the thing for a walk to make a difference.

Kim Wehle: [00:13:10.89] There's no constitution cop on the block that is the Constitution is a piece of paper. It's like a contract right. If you if we the people don't enforce it through the voting booth the ballot box or through the courts or a suit of some kind of other mechanism to ensure that our elected leaders are actually complying with the law then the Constitution itself just becomes irrelevant it's a piece of paper it doesn't its rules don't matter you can take out the black sharpie and cross them out. It's only so good as it's enforced.

Nick Capodice: [00:13:48.84] I feel like this ultimately makes us the Constitution cops. I mean trust in the system. Appreciate the system sure but know how the system works. Just in case someone sleeping on the job.

Hannah McCarthy: [00:14:01.5] Yeah. So. now that we do understand how things are supposed to work.

[00:14:06.93] The failsafe system for keeping the three headed dog alive it might be time to get a better sense of what all of these branches are thinking doing on their own time. Their powers are checked. but what are their powers.

Nick Capodice: [00:14:22.89] That's next time on Civics 101.

Hannah McCarthy: [00:14:33.47] Civics 101 was produced today by me. Hannah McCarthy with Nick Capodice and help from Jackie Helbert and Ben Henry. Erica Janik is our executive producer Maureen McMurray thinks that power corrupts but absolute power is actually kind of cool. Music In this episode is by Blue Dot sessions, Lobo Loco and Quicksand. There is a transcript for this episode as well as a bunch of other resources at Civics 101 podcast dot org. And while you're there drop us a line. Click the Ask a question link and let us know what you want to know about civics. We'll do our best to answer it in a future episode. Civics when one is a production of N H PR New Hampshire Public Radio.

CPB : [00:15:30.29] Civics 101 is supported in part by the Corporation for Public Broadcasting.

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Made possible in part by the Corporation for Public Broadcasting.

Life Stages: Death

It's the final episode of our Life Stages series, and its euphemism-free. We speak to a doctors, lawyers, professors, and funeral professionals about the rules of death; pronouncing, declaring, burying, cremating, willing, trusting, canceling, donating.

Featuring the voices of Dan Cassino, Ken Iserson, Leah Plunkett, Mandy Stafford, and Taelor Johnson. 

Click here to get a Graphic Organizer for notetaking while listening to the episode.

Episode Segments

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TRANSCRIPT

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

Civics 101

Life Stages: Death

 [00:00:05] Civics 101 is supported in part by the Corporation for Public Broadcasting.

Nick Capodice [00:00:05] You know what. More than ever in this series, I am grateful for red tape. Because death is so personal. And in radio we're not supposed to refer to  "the listener." But I'm gonna do it. You listener. I have no idea how you want to talk about death. When I was coming up with ideas for the episode I was like I'll open with The Seventh Seal or Bill and Ted's Bogus Journey or Barber's Adagio for Strings. Because I don't know, are you a reverent about death? Does it terrify you? Maybe you're dealing with it right now in your life and it's horrible and it's consuming everything. So all I'll do is say that when I have dealt with death in my own life, I strangely took comfort in the rules and regulations and systems of it. Because I'm sad and I'm angry and I don't know how I'm supposed to feel, but okay let's see what the lawyer has to say. How many copies of the death certificate do we need. Let's talk about the arrangements. But these conversations are so awkward.

Ken Iserson [00:01:06] We don't like to talk about it. We don't like to think about it.

Nick Capodice [00:01:10] This is Dr. Ken Iserson.

Ken Iserson [00:01:14] I'm professor emeritus at the University of Arizona Department of Emergency Medicine.

Nick Capodice [00:01:17] He's written several books on death including Dust to Death: What happens to dead bodies.

Ken Iserson [00:01:21] You know even in the shoot em up cops and robbers and military films and other media where they show lots of deaths and lots of killings, they don't show the funerals. They don't show the dead bodies. Except maybe for Game of Thrones. But in general we don't, a lot of people don't like to go to funerals. That's not part of their life which is kind of strange because of course it is part of life.

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

Hannah McCarthy [00:01:54] I'm Hannah McCarthy.

Nick Capodice [00:01:55] And today on Civics 101 it is the final chapter of our life stages series; Death.

Hannah McCarthy [00:02:01] Can we start with when someone becomes dead.

Nick Capodice [00:02:04] Right, we're not going to get into the sort of philosophical question of when is someone quote dead but we can explore when someone is legally dead.

Ken Iserson [00:02:12] Yeah that's that's a really really big part of the interaction of law and death. Who decides that a person is dead and how is it done. Well in every country in every locale the basic rule is a person is dead when a physician says the person is dead.

Hannah McCarthy [00:02:32] So once they're pronounced dead is that when the death certificate is issued?

Nick Capodice [00:02:37] Yeah and usually someone checks the clock and they step back and they say time of death for 13 or whatever but there are two very different ways you can become dead and Hannah, this can cause some issues regarding what is real.

Dan Cassino [00:02:52] Legal facts and actual facts often but do not always co-exist.

Nick Capodice [00:02:58] You all know that music means there he is making his last appearance in the series, Dan Cassino from Fairleigh Dickinson University.

Dan Cassino [00:03:04] Meaning, the fact that something is legally true does not mean it is actually true. So there's two ways you can be declared dead. So you can be declared dead, declaration of death happens from either a cop or a medic or a judge, or you can be pronounced dead which is by a doctor. Now if you're pronounced dead and a doctor looks at you and says This guy's dead, there's not much disagreement about that and the legal fact of your death and the actual fact of your death are two things that are very much in line. Depending what state you're in between four and seven years if you have disappeared and there is no reason why you've disappeared in the courts are allowed to look into this and decide alright is this person fleeing debt, where they, did they leave a note and say they were going somewhere, if there's no reason why you should be missing and you haven't turned up at your place of business and there's been effort to find you and haven't turned up and they put an ad in the newspaper asking for you to turn up and you haven't turned up guess what. After four to seven years you are legally dead and your heirs can start collect your estate. The government can start giving Social Security to your survivors. Insurance companies have to pay out and if you decide after that you want to come back and you are not actually dead just legally dead, well you're gonna have a hell of a time because the Social Security administration is gonna want all that money back that they paid out to your survivors and they might not want to pay you back. The insurance company while it turns out they cannot actually take the money back from your heirs, it turns out they can sue you if you disappeared on purpose and try and get the money back that they did pay out from you. And so we have all these cases where people who are in fact legally legally dead but not actually that do come back.

Hannah McCarthy [00:04:29] But how often does that actually happen.

Nick Capodice [00:04:31] Dan said there are about 100,000 dead not dead Americans walking around right now.

Hannah McCarthy [00:04:37] That is bonkers.

Nick Capodice [00:04:38] But for the majority of Americans, death will happen in a hospital or home or hospice care and the funeral service will be contacted to assist with what comes next. But Ken told me it wasn't always that way.

Ken Iserson [00:04:52] In the beginning in the beginning of our country families experienced births and deaths at home. They saw many many many little children die at birth. They saw the mothers in large numbers die giving birth or shortly thereafter. They saw what happened to the bodies. They helped bury them they helped prepare them, and then that changed.

Nick Capodice [00:05:22] In fact the antiquated term undertaker which I learned you should never call a funeral professional these days just meant someone who undertook a task. And that person is usually a family friend or relative who helped you bury the body and make arrangements. That person would contact the local cabinet maker to make a coffin and maybe a carriage to take it to the grave site. But that was it. By the way do you know the difference between a coffin and a casket Hannah.

Hannah McCarthy [00:05:48] This isn't a setup for a joke is it.

Nick Capodice [00:05:49] No it's not. No.

Hannah McCarthy [00:05:50] Okay Nick what is the difference between a coffin and a casket.

Nick Capodice [00:05:54] It's the shape. A casket is rectangular and a coffin has that a irregular hexagonal coffin shape.

Hannah McCarthy [00:06:00] That's it?

Nick Capodice [00:06:01] That's it. And as a fun side note, in the 1950s there are about 500 casket manufacturers in the U.S. and today three companies that make 70 percent of the caskets in America.

Hannah McCarthy [00:06:12] So when did Death shift from being the responsibility of families and your local cabinet maker to these funeral professionals.

Ken Iserson [00:06:21] Around and after the Civil War the funeral industry suddenly became a real entity and embalming was developed. And initially it was developed of course for the bodies on the battlefield, especially the officers, they wanted to preserve them and send them home. And then all of a sudden this body arrived that was supposed to be embalmed. And I guess it was to some extent but not in a condition you'd want to look at it. And then the families began using that routinely and gradually sending the whole process over to the funeral director instead of at home.

Nick Capodice [00:07:12] Embalming becomes more popular when formaldehyde becomes readily available in America and embalming fluid sellers would travel the country to give these one day crash courses and how to do it to funeral directors and this means the body can be preserved and therefore more time and consideration given to the funeral service. And that's how we get to today where a funeral director can provide over 130 separate types of services for a family.

Hannah McCarthy [00:07:41] Like what.

Nick Capodice [00:07:42] Set up catered meals for services, they contact the friends and family for you about the death, write and place the obituary, arrange the hearse, the church, gravestone, refrigeration, memorial cards, tent at the gravesite, washing, dressing, cremating casketing, cosmetology and the big one embalming.

Hannah McCarthy [00:08:02] Wow wow.  Is it legally required that a body be embalmed nowadays.

Nick Capodice [00:08:05] Absolutely not. But there are laws of it having to embalm or refrigerate or cremate or bury within a certain time window after death. Did you know the U.S. and Canada are the only two countries in the world where enbalming is common and we bury about 800000 gallons of embalming fluid every year. But while all the states have different regulations about burial, embalming is not required as part of your final disposition.

Hannah McCarthy [00:08:31] Final disposition.

Mandy Stafford [00:08:32] A final disposition is that last step.

Nick Capodice [00:08:37] This is Mandy Stafford. She's a funeral director at Mueller memorial in St. Paul Minnesota.

 [00:08:41] Hi I'm Scott Mueller president of Mueller memorial and author of the bestselling book What to know before you go.

Nick Capodice [00:08:47] I had the pleasure of speaking with two Mueller Memorial employees Mandy and Taelor Johnson who's in charge of community relations.

Hannah McCarthy [00:08:53] I'm glad that we get to hear from people who actually do this for a living.

Nick Capodice [00:08:56] Right. And the first thing I asked them to do was to help me clear up any misconceptions about the industry.

Taelor Johnson [00:09:03] I'll search sorry but I'll start you right there. Scott doesn't like it when we call it an industry. He prefers to be called a profession.

Hannah McCarthy [00:09:09] Nick you always manage to do this.

Nick Capodice [00:09:12] I know! No. They were very cool about it.

Taelor Johnson [00:09:13] No no no it's a perfect example. Perfect example.

Nick Capodice [00:09:16] If I may say Mandy and Taylor were the exact opposite of that film stereotype of the scary funeral director and they both told me about the laws regarding that final disposition how you end up.

Mandy Stafford [00:09:28] Minnesota has what's called a 72 hour law and so within 72 hours of when someone passes away the family needs to make the decision between having cremation take place being able to do the embalming process or doing what's called a direct burial which means burial takes place without embalming, within the 72 hours.

Hannah McCarthy [00:09:52] Are those your only three options; embalming cremation direct burial.

Nick Capodice [00:09:56] Not even remotely every state may have different laws but in 46 of them you can be buried in your own yard. There are green burials which are alkalis that break your body down, you can be buried at sea. Not to mention the thousands of things you can do with your cremains. And also, and this is where Mandy and Taelor defied my expectations, they expressly said you don't even need a casket or coffin. You need a rigid container if you're cremated. But other than that anything goes. A cardboard box. A bedsheet.

Hannah McCarthy [00:10:26] Wow. Can I ask a quick questino.

Nick Capodice [00:10:28] Yeah go ahead.

Hannah McCarthy [00:10:29] I don't know if you know the answer to this.

Nick Capodice [00:10:29] Sure.

Hannah McCarthy [00:10:30] I had a boyfriend once.

Nick Capodice [00:10:32] Yeah.

Hannah McCarthy [00:10:32] Who. I mean this is this is just a little fantastical but his plan for his death was to be taken out to the forest and and kind of sink into the earth and be taken away by animals. Can you do that can you just let yourself let your dead body be eaten away and taken away just lying out there in the middle of the forest is that legal?

Nick Capodice [00:10:53] That is not legal due to the potential for spreading illness or contaminating a water supply. The body does have to be buried.

Hannah McCarthy [00:11:00] Oh what about a Viking funeral.

Nick Capodice [00:11:04] Like a Pyre?

Hannah McCarthy [00:11:04] Yeah.

Nick Capodice [00:11:05] Like set alight on a boat via a flaming arrow.

Hannah McCarthy [00:11:08] Yeah.

Nick Capodice [00:11:08] You can't do that and you're not the first to ask. That's actually a common question. Cremation has to be done by a licensed crematorium because fires that we set just can't get hot enough.

Hannah McCarthy [00:11:18] How hot exactly did crematoriums need to get to reduce the body to ash.

Nick Capodice [00:11:24] Modern crematoriums get up to about eighteen hundred degrees. There is one and only one outdoor pyre styled crematorium in the US. It's in Colorado.

Hannah McCarthy [00:11:34] Now. Take me through the absolute bare minimum. Someone dies. What do you have to do.

Nick Capodice [00:11:40] If it happened in your home; unless the person was in hospice care, you have to call the police. They will send a medical examiner and determine the cause of death and write the death certificate. But dealing with the body is probably going to cost you. Lots of life insurance plans help you cover those funeral expenses, average burial in America seven to ten thousand dollars, average cremation five to six thousand dollars. If you're working with a funeral home a funeral parlor you'll probably spend at least three thousand dollars.

Hannah McCarthy [00:12:10] But what if you have no money. A relative passes away in your home what can you do.

Nick Capodice [00:12:16] This varies state by state and county by county. But if you're on some manner of governmental assistance that assistance program will negotiate and cover a simple cremation or a burial with the funeral home. Mandy told me it's usually cremation most of the time because the government program will not help pay for a cemetery plot or a headstone. But the real tricky part in this comes not to how it's done but who gets to make that final determination of your final disposition. It's your next of kin. You know about the next of kin order right.

Hannah McCarthy [00:12:46] No I don't.

Nick Capodice [00:12:47] It's like the presidential succession. So first it's your spouse and then it's your children and then it's your parents siblings and grandchildren then grandparents then nieces nephews etc.. Here's funeral director Mandy Stafford again.

Mandy Stafford [00:12:58] So I think that is really the biggest red tape is understanding who has that right to make the decisions and say there are eight children and four of them want cremation and four of them want a traditional casket at service. That's where things can get a little grey so to say. Because here in Minnesota we do need one more than half to sign for cremation to take place.

Taelor Johnson [00:13:27] And if they can't get that majority.

Nick Capodice [00:13:29] Taelor told me that they just get there. They mediate and they discuss it and it almost always gets decided within that 72 hour window.

Hannah McCarthy [00:13:40] So what can I the currently living due to prevent this hassle and debate for my next of kin when the time comes.

Nick Capodice [00:13:48] So you want to make it easier for those you love.

Hannah McCarthy [00:13:50] Yeah.

Nick Capodice [00:13:51] All right. First thing you have to do is fill out an advance directive. I'm going to do it as soon as we record this episode. I swear. You can download the forms for your state. Fill them out in front of a witness. Give a copy to your doctor, to your lawyer, to your parents, to your kids. Keep a note saying you have one in your wallet. That assures your friends and loved ones that what you want to be done with your body will be carried out and no one has to make that grueling decision. But even after you deal with the red tape of the burial, you're not finished.

Taelor Johnson [00:14:22] Yeah there's a lot of things that that we don't think about because there's especially now in the digital age we're living in. People have so many different accounts and and passwords and user names and all that and it's it's hard to figure out exactly how to close out someone's life. You kind of break it down into two different categories, one would be cancellations and one would be more like asset distribution. So if you're looking at cancellations, something like Netflix Netflix doesn't have a contract or anything like that so you can just call Netflix and tell them someone passed away and they'll cancel the account. Because if you are doing that falsely it would be easy for the person to reinstate it. It's not a big deal but you want to use caution when you cancel something like an Amazon account or a an iTunes account because once you do that you lose all of the assets that were being held by that account. So technically speaking when you buy a song air quotes buy a song on iTunes you're actually leasing it for your lifetime.

Hannah McCarthy [00:15:27] Are you kidding me. Like I don't actually own the copy of a League of Their Own that I paid for.

Nick Capodice [00:15:33] Those Rockford peaches are not yours to espy in death Hannah, and my kids can no longer watch all nine seasons of Curious George. Google lets you choose whatever you want to do with your account when it's been inactive a certain amount of time you can let someone else access that or just lock it all shut it down and delete everything. And Facebook lets you assign what's called a legacy contact. Phone companies need to be called appropriately enough but there's one kind of Web site that is very persnickety about death.

Taelor Johnson [00:16:05] So. So if you have like an online stock account through E-Trade or T.D. Ameritrade or something like that you would you would want to make sure that beforehand, and this is a huge takeaway and if I could if I could like shake people and say do this it would be it would be to say go into, if you have these kinds of accounts if you have a brokerage account which is just an account that has that you can trade stocks in or something to that effect. Make sure you have a transfer on death filled out because you are not required to fill that out when you when you open a brokerage account. You are required to fill out a beneficiary for an IRA but if you've got an online brokerage account you have to go in specifically and fill out a transfer on death form. And a big thing there is is the biggest most important thing in either of those cases is to not ever make any transactions after someone has died. If you have the username and password for your spouse or your sibling or something like that if you're there the executor of their state whatever it doesn't matter do not go and make changes because the IRS will not look fondly upon a discrepancy between transactions that were made by quote someone you know like it by a living person and that conflicting with a a certain death certificate.

Hannah McCarthy [00:17:35] Okay so now we're into an area that is famously touchy right. Leaving your assets after death your will.

Nick Capodice [00:17:44] Right. Did I ever tell you that I had a program on my Apple iic when I was a kid called Will Writer. My sister and I wanted to start a will writing business.

Hannah McCarthy [00:17:52] Why were you... as children?

 [00:17:56] Can you write your own will. Sure you can.

Nick Capodice [00:17:58] There are a ton of YouTube videos with will advice out there by the way.

 [00:18:01] You can also build your own house but that doesn't mean you should. A will is an important legal document.

Hannah McCarthy [00:18:08] When you're left something in a will, does the government take some of that is it taxed?

Nick Capodice [00:18:13] This is called an estate tax and the federal government won't do it unless it is eleven point eight million dollars or more that you're left. The state though can levy state taxes on that gift at a lower level but it's still around the million dollar range. However be ye warned about capital gains tax. So that's like if you're left a house that's worth 250 grand and you sell it for 275. You get taxed on that twenty five thousand dollar difference.

Hannah McCarthy [00:18:43] Why are wills so complex.

 [00:18:44] I know, right? So I asked Leah Plunkett from University of New Hampshire School of Law, why can't I just write on a piece of paper I leave everything to my wife and kids and they know what's best. Why are they so tricky.

Leah Plunkett [00:18:55] Wills are complicated because we need to make sure that they are made with an understanding by the person who's making them of what they're doing that they're not being coerced or controlled but they're being made knowingly and voluntarily and of free will. It's so crucial that we know that that's really your decision. So I've got a piece of paper in my blue professor pen you know on the desk right here. If I just write I leave everything to my husband two kids and a dog they know what's best, you're an appropriate witness because you're not related to me, you don't have a stake in my will. But how the heck is you know a court or the bank that has the mortgage on our house or any of these other official entities supposed to be able to know that this piece of scrap paper that I scribbled on was really me, that I was really doing it of my own free will. If there aren't certain, I sometimes tell my law students that going to law school is like going to Hogwarts that there's certain phrases and certain words that are legal terms of art. And if you use them the right way then magic happens. And it's not flying or unforgivable curses but you do have the power to alter the outcome of someone's life or an institution's trajectory.

Hannah McCarthy [00:20:18] These are phrases like I Hannah McCarthy being of sound mind and body.

Nick Capodice [00:20:22] Yeah. Terms like bequest, devise, right of representation, executor, the female version of which was once an executrix by the way. An executor is the person who carries out the will and with very few exceptions your will is going to go through probate, which is a court review to prove the validity of the will. Probate comes from Latin for to prove. And that process of probate can take months up to years.

Hannah McCarthy [00:20:47] And there's no way around this.

Nick Capodice [00:20:49] There is a way and I feel like I'm in a commercial when I'm talking about this stuff but it's creating a trust instead of using a will to give stuff to someone else. If you create a trust you can choose possessions and money to give to someone before you die, and when you die, and after you die. And trusts do not go through probate, they don't go through court.

Hannah McCarthy [00:21:12] OK I. I knew a good number of people in college who actually had trusts that like they wouldn't be able to access them until they were like 21 or 25 or 30 but some of these trusts, tell me if this is an actual legal thing, had stipulations like you have to have graduated from college or you can't get in trouble with the law.

Nick Capodice [00:21:35] You can put conditions like that on any gift, will, or trust. State supreme courts have actually ruled on this. As long as the conditions don't break the law they are binding and you have to do the thing to get that money. Even things like you have to have an Ivy League diploma or you cannot marry outside the faith.

Hannah McCarthy [00:21:55] Wow that's really kind of restrictive and manipulative.

Nick Capodice [00:21:58] But it's legal, man. It's the law.

Hannah McCarthy [00:22:01] Can I just ask you Nick, after all of this, have you decided on your final disposition?

Nick Capodice [00:22:10] I haven't yet but there is something that Ken Iserson from University of Arizona said to me that opened up a possibility I hadn't even considered.

 [00:22:22] There there's so much suffering in creation as we know it. We remember today those made a difference in the relieving that suffering by generosity.

Ken Iserson [00:22:34] I always have felt that people who donate their whole body to science are really benefactors for humanity.

Nick Capodice [00:22:45] If you contact your local medical school and you start the process which also requires signing forms in front of witnesses, you can leave your body to medical science. Once it's been used it's been studied and it's been dissected it's cremated and the criminals are sent back to you usually for free.

Ken Iserson [00:23:01] You know there's one other thing that's associated with it. I think it started at the University of Arizona Medical School and has gone to other places since. But the medical students actually have a service for all the people who donated their bodies for their anatomical training. And it's rather moving the whole class gets together and it's led by a diverse religious people.

 [00:23:30] I never knew where you were from. I never knew your face, never knew your voice. I committed every twist and turn of each and every vein and artery to memory.

Nick Capodice [00:23:44] Even though the way we think about death has changed so much in America has Taelor who deals with death every day if she had any advice for the rest of us.

Taelor Johnson [00:23:53] Definitely don't shield your children from from death, don't shield anyone from it. Because we're we're pretty well distanced now as a society from death. We have someone who comes to our house and and takes the body away and there are, we don't have to be close, closely involved as as even two generations before us were. So I just encourage people because I spend a lot of time working on grief and those those few days that that acute loss period is really so vital framing how your grief experience is gonna go for the rest of your life. So so don't back away from it, kind of lean into the the rites and ceremonies that happen when someone dies and always go to the funeral.

Nick Capodice [00:24:41] Mandy told me that it helps with the grieving process. And she told me a story about the one time she didn't go to a colleague's and how she still doesn't have closure in that death. Ken told me that it's great maybe even preferable to not have a funeral at all but have a memorial service like months or weeks after to celebrate the life of that person.

Hannah McCarthy [00:25:01] I have to make an advance directive. Write a will. Write down passwords and tell my next of kin not to cancel my Amazon.

Nick Capodice [00:25:10] Right.

Hannah McCarthy [00:25:11] I have a lot of tasks to do before I die.

Nick Capodice [00:25:14] May it be a long time my friend.

Hannah McCarthy [00:25:18] So that's it. I think we're done. Cradle to grave.

 [00:25:22] Yeah. Almost. Just one last word to kind of put the hat on the snowman. Before I said goodbye to Dan, he said he wanted to put in one final salvo, a defense for these things that you and I consider onerous.

Dan Cassino [00:25:37] All of these things we're talking about are about bureaucracy or about the federal government and putting red tape in your way. And we hate bureaucracy. We hate that red tape. But turns out this is actually a really good thing. So think about it. If I go to the DMV and a person in front, that person handing me a ticket tells you a line to get in. If Bill Gates goes to the DMV he goes the front that person gives him the same ticket. Lets say that person really loves Bill Gates loves Windows. I'm sure that person exists. They go out they say we want to help Bill Gates, what can they do? Nothing. They give him the same ticket. They are constrained. They have really no way of doing anything other than the one thing they're allowed to do. The whole idea of bureaucracy is it's small d democratic. Everyone gets treated in the exact same way because the bureaucrats don't have any discretion, they have no ability to treat people differently so you and me and Bill Gates and the person's mother in law and everybody gets treated the exact same way when they show up. So bureaucracy, while we hate, it while it's terrible because no one has discretion they can't help you out or something goes wrong, guess what. It's the most democratic part of our government.

Nick Capodice [00:26:37] So here's to bureaucracy a word that I can just never spell.

Hannah McCarthy [00:26:40] Me neither

Nick Capodice [00:26:41] Really?? You also have that one?

Hannah McCarthy [00:26:42]  I can never.

Nick Capodice [00:26:43] It kills me that red squiggle. I'm like "Today I'm not going to get the red squiggle" and there it is.

Hannah McCarthy [00:26:49] Nick it was fun exploring the life of an American with you.

Nick Capodice [00:26:55] The pleasure was more than half mine. I agree, Hannah. That'll do it for this episode and this series. Today's episode was produced by me Nick Capodice with you Hannah McCarthy. Thank you.

Hannah McCarthy [00:27:02] Oh you're welcome. Our staff includes Jacqui Helbert, Daniela Vidal-Allee and Ben Henry. Erika Janik is our executive producer and owns a non digital copy of a League of Their Own.

Nick Capodice [00:27:13] Maureen McMurray rides A Pale Horse.

Hannah McCarthy [00:27:15] Music in this episode by elephant funeral Blue Dot sessions Seb Wildwood coconut monkey rocket and Chris Zabriske. Scott Grant and did this inspirational song you listen to here.

 [00:27:25] Don't you just want to walk forcefully up a mountain and stand there with your hands on your hips. Civics 101 is a production of a NHPR New Hampshire Public Radio and is supported in part by the Corporation for Public Broadcasting.

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Made possible in part by the Corporation for Public Broadcasting.

Life Stages: Retirement

The prospect of retirement - of leaving the work force, aging, confronting a new body and a new way of life - is peppered with concepts and requirements so unwieldy they can make your brain turn off. So how do we make retirement prep easier? Shed the dread and face the future armed with a plan? Our guides to the next stage of life are Bart Astor, Tom Margenau and Cristina Martin Firvida. 

Click here to get a Graphic Organizer for notetaking while listening to the episode.

Episode Segments

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TRANSCRIPT

 LIFE STAGES: Retirement

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

Hannah McCarthy [00:00:05] I have to confess something.

Nick Capodice [00:00:07] A podcast for thousands of listeners is as good a place as any Hannah.

Hannah McCarthy [00:00:11] Whenever I see an ad for retirement investing.

Retirement Ad Montage [00:00:16] Money is like life. You have to decide how to get the most from it which means you can retire without retiring from life with retirement planning and advice for what you need today. And tomorrow.

Hannah McCarthy [00:00:30] I get this creeping anxiety.

Nick Capodice [00:00:32] I have retirement accounts I whenever I look at them I just try to find something else to do.

Hannah McCarthy [00:00:38] Yeah. And I think to myself well you know it honey you're not afraid of the future. You've been paying into Social Security since you were probably 16. You're actually pretty lucky you've got a full time job and a retirement savings account. And I have even used one of those retirement calculator things online.

[00:00:57] And yet...

Retirement Ad Montage [00:01:00] We ask people the question how much money do you think you'll need when you retire.

[00:01:04] Five hundred thousand maybe a half million.

Hannah McCarthy [00:01:08] Full on stomach ache.

Nick Capodice [00:01:09] Isn't retirement supposed to be something that you look forward to no more working for the man. Rest of Your Life is just me time.

Hannah McCarthy [00:01:17] Sure all that free time to do what every you've always wanted to do. But then I think to myself What am I actually going to do.

Nick Capodice [00:01:28] Can we pull back this existential shroud? Can we lift a little of our dread?

Hannah McCarthy [00:01:32] I think.

[00:01:33] In fact we can. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice [00:01:38] I'm Nick Capodice.

Hannah McCarthy [00:01:39] And today.

[00:01:40] Retirement. The golden years. The autumn years. The sunset years. Life at the crossroads.

[00:01:56] Can we please remove these words from our retirement vocabulary.

[00:02:05] Retirement doesn't mean you pass into some shimmering soft focus cloud of obscurity.

Nick Capodice [00:02:10] Thank you. I hate these euphemisms. The sunset years. No wonder I don't want to think about getting old.

Hannah McCarthy [00:02:17] Yeah I feel like these terms make us sound like we'll become generic one dimensional versions of ourselves after we leave the workforce and become older. Not to mention the fact that they're a way around saying the word old.

Bart Astor [00:02:31] I think we put down the whole concept of Old. And and my my mission I took on was to say the word old is not a bad word. I think it's really good to be old. I'm so much happier now than I was throughout my life.

Hannah McCarthy [00:02:47] This is Bart Astor. I called him up to talk about what we don't talk about when we talk about retirement.

Bart Astor [00:02:54] I'm fascinated by the fact that we don't think about it. I mean it's amazing everything becomes a surprise. I didn't know that my body would start failing but yet it did. Of course it did.

Nick Capodice [00:03:06] Of course it did. It's bizarre but I get it. Age sneaks up on you a bad back sneaks up on you I'm pretty sure I was 22 yesterday.

Hannah McCarthy [00:03:13] Yeah. There is a measure of existential dread that comes along with this stage of life right. What's gonna happen to my body my brain? Will I have enough money? Can I ever retire? If I do what is it even going to look like?

Bart Astor [00:03:29] Because this image of what life is supposed to be like and we know it is just not necessarily what it is. So I think that we don't want to think ahead. And then when we do we we're afraid that I'm going to sit around and eat bonbons and that that's going to be my retirement.

Hannah McCarthy [00:03:46] Does it have to be all lounging on the couch and eating bonbons. How do we make this transition as straightforward and predictable as possible while Bart's helping us out with the existential. Let's make the practical a little less mystifying too. And the practical has a lot to do with government retirement and a lot of ways was designed by the federal government. There are three major things you need to think about when you think about retirement. That's social security health and savings. First stop Social Security.

Tom Margenau [00:04:21] Maybe you've heard the term join the Navy and see the worldwide join the Social Security Administration. I didn't see the world but I saw a lot of the country as we moved around to different social security offices.

Hannah McCarthy [00:04:31] This is Tom Margenau. He worked for the Social Security Administration for 31 years and a bunch of different jobs. And these days he writes a column about Social Security and retirement. And before we do jump into Social Security as a retirement benefit.

[00:04:47] A quick caveat.

Tom Margenau [00:04:49] Social Security isn't just old people. What Social Security is in a nutshell is it obviously is old people it's retirement benefits and widows benefits those are two big parts of Social Security. But another big part of Social Security disability benefits we don't all stay healthy until we reach our retirement years.

Hannah McCarthy [00:05:08] You can receive Social Security benefits for as long as the Social Security Administration says your condition is one that prevents you from returning to work. For some people that is indefinite and then when they do reach retirement age their disability benefits convert into retirement benefits. There is also a survivor's program for spouses and children widows and widowers can collect part of their deceased spouse's benefit. Children can too until they turn 18.

Nick Capodice [00:05:36] I got it. So Social Security helps keep people secure and all sorts of situations right. But it seems like they're all tied to the fact that someone was working at some point.

Hannah McCarthy [00:05:45] Yes the Social Security Administration uses a credit system so it's similar to the way that you earn college credits as you put in class time on your way to graduation. As of 2019 for every 1360 dollars you earn you get a credit.

[00:06:02] Up to four credits a year.

[00:06:05] The minimum is 40 credits to receive benefits which get delivered once a month for the rest of your life.

Nick Capodice [00:06:13] So after about 10 years you unlock the social security enhancement.

Hannah McCarthy [00:06:18] Exactly.

[00:06:19] Now before we get into details have we always had Social Security in the U.S. the United States actually came a little bit late to the Social Security game.

Tom Margenau [00:06:27] Social Security was implemented in the U.S. in 1935 in many European countries have social security systems long before we started doing that which for example Germany had a Social Security system going back to the 1880s.

Nick Capodice [00:06:41] So what was it like before we had it. It's a long time to go without having a retirement safety net.

Tom Margenau [00:06:46] So it was something like 60 or 70 percent of senior citizens before Social Security were living below the poverty level. They were living with their family they were a lot of senior citizens ended up living in cold poor houses because they had essentially no money.

[00:07:03] So so security grew out of this era in this country when especially going out of the Great Depression as a target. Franklin Roosevelt's New Deal program some kind of system to provide some level of support for older people and then eventually for disabled people and widows and widowers and so on.

Hannah McCarthy [00:07:23] The Social Security Act has been changed a number of times since 1935 but initially it was just federally administered social insurance and we paid for it with payroll taxes.

Nick Capodice [00:07:35] When I look at my paycheck and there's that little area where social security is taken out that's going into the Social Security pot at the end of the rainbow and it goes into one big pot right. It's not just me saving for retirement.

Hannah McCarthy [00:07:46] Right.

[00:07:47] And we'll get into individual savings accounts in a bit but of course if you are making more you are paying more into it and your employer is also paying a percentage into that pot. So if you are self-employed and wondering why your taxes seem so high that is in part because you are paying the entirety of the Social Security tax.

Nick Capodice [00:08:06] So do I get more from Social Security if I made a lot more money during my life.

Tom Margenau [00:08:10] The more money you put in the system the higher your benefits going to be. You know Bill Gates is going to get a higher social security benefits someday. Then his maid is gonna get.

Nick Capodice [00:08:20] What does that mean. Why would billionaire Bill Gates not get five million bucks a week or something from Social Security.

[00:08:26] That has to do with something called rate of return. It's higher for people who earn lower wages over their lifetime. So Bill Gates is Social Security check. It is going to probably be higher than let's say his housekeeper's check. But the percentage of his total income is going to be way lower.

Tom Margenau [00:08:44] A rich person gets a higher Social Security benefits than a poor person. But again as a sort of percentage of what they kicked into the system the poor person gets a better deal out of the program. And that's one of the social aspects of Social Security is to raise the standard of living of lower income people in retirement by giving them this higher rate of return.

Nick Capodice [00:09:05] I've wondered how does the Social Security Administration know that you're ready to collect your benefits to retire.

[00:09:10] Do you tell them you give a call or does your employer tell them?

Hannah McCarthy [00:09:13] You have to apply with the administration. So in most cases you can do this online or over the phone but there are also social security offices in every state in the country.

[00:09:23] You've got to be a few months away from age 62 in order to do it. But there are a lot of people in this country who spend years paying into Social Security who reach that retirement age and find that they are denied benefits.

Tom Margenau [00:09:37] You might be pumping money into the system matter of fact so sturdy actuaries will tell you that illegal immigrants crudely pump about two billion dollars a year in taxes into the Social Security system. People who've obtained numbers through nefarious means but they're working above the people faithfully are of course a lot of folks like that work under the table. But there are some who actually get us all still does work above the table and are paying money into the system pumping two billion dollars a year into the Social Security system but they never collect a dime in benefits because if you're living here illegally you're never going to get a nickel of Social Security benefit.

Nick Capodice [00:10:16] All right. So that's how Social Security is applied to undocumented immigrants. But I have another one I'm a little confused about. I've heard that by the time I retire Social Security will have dried up entirely. What's the deal with that.

Hannah McCarthy [00:10:29] I have heard the exact same thing. And by the way I like Way to up the ante on existential dread. Right.

[00:10:36] And this is an issue that Tom really wanted to get out of the way.

Tom Margenau [00:10:40] The very first presentation I ever made about Social Security somebody got up and said I don't know why we're even listening to you because we all know the program is going to be broke long before we ever get benefits. That was 50 years ago. If that guy is still alive he was in his 30s at the time. You know he's in his 80s now and he's been getting so steady checks for 20 or 30 years now for 50 years now. People have been telling me the system's going to go belly up before they ever have a chance to get benefits. But the system has been paying these benefits for 80 years now. I'm not quite sure how long it's got to be around before people finally accept the fact that maybe it's here to stay.

Hannah McCarthy [00:11:17] The deal right now is that Social Security's excess cash their reserves could run out a decade and a half from now. If Congress does not pass any laws to help things out but this is not the same thing as Social Security going broke. Now there are certainly scenarios where we might receive less money from Social Security because say the economy tanks or we go into a recession but things like this Reserve's running low or economic crises have happened in the past and Congress has reacted.

Tom Margenau [00:11:50] Now certainly over the years the system has had its pumped up against various economic problems were and forecasts were that the benefits would might have to be tapped or something.

[00:12:03] Over the years every time this has happened Congress has passed some laws that make some reforms to Social Security like keep the system going.

Nick Capodice [00:12:12] What kind of reforms.

Hannah McCarthy [00:12:13] Things like phasing in a higher retirement age tweaking tax rates for a period of time adjusting the benefit formula adjusting the retirement age didn't the government sit down and say 65 is the perfect number.

Hannah McCarthy [00:12:27] Well they did in 1935 but actually 65 is not the national retirement age anymore. Reforms in 1983 mean that now the ages 66 and two months if you are on the brink of retirement right now. But by 2022 that age will be 67.

Nick Capodice [00:12:50] Alright so I'll be retiring at 67.

Hannah McCarthy [00:12:52] Or later even. It really all depends on what possible future reforms look like and what your bank account looks like. Also humans tend to be living longer. You can start collecting retirement before you retire but your longevity might be a consideration for you.

Cristina Martin Firvida [00:13:09] You might outlive your savings but you cannot outlive your Social Security and you want to make sure that your Social Security check is robust especially as you get much older.

[00:13:22] This is Cristina Martin Firvida. She's the vice president of financial security and consumer affairs at AARP.

Nick Capodice [00:13:28] The AARP American Association of Retired Persons.

Hannah McCarthy [00:13:32] it actually used to be the American Association of Retired Persons. But there are a lot of people who are members of the group who are not yet retired so now they just go by the acronym AARP.

[00:13:43] They're pretty influential lobbying group in the U.S. that focuses on senior citizen issues.

Cristina Martin Firvida [00:13:48] So I lead up all of a piece federal lobbying on retirement issues including Social Security and pensions. And in addition to that I also work on employment issues housing transportation telecommunications all sorts of important issues that people think about when they're getting ready retire and they're thinking about their money.

Hannah McCarthy [00:14:12] AARP also sells memberships and lends its name to some health insurance companies for health care plans.

Nick Capodice [00:14:18] And they know when you turn 50 my friend just got home for his fiftieth birthday and the card was in the mail and he nearly died. So it's like Hogwarts for adults.

Hannah McCarthy [00:14:26] Yes AARP does send you a membership invitation when you turn 50.

Nick Capodice [00:14:31] How do they know.

[00:14:32] Well in one of the articles that I read about exactly this subject a rep from AARP said they get birthdays from quote companies that specialize in providing information to direct marketers. It's totally legal even if it bums you out. Can we get back to the show, Harry.

[00:14:50] OK onward.

Hannah McCarthy [00:14:54] Your Social Security check is based on your average monthly earnings. The administration pulls from the highest earning 35 years of your employment so you can estimate depending on your age and your highest earnings what your monthly check will look like when you start collecting.

[00:15:09] And that number will barring changes in the law be the same for as long as you collect.

Nick Capodice [00:15:14] And the longer you wait before you decide to collect Social Security the bigger the check will be.

Hannah McCarthy [00:15:19] To a point after you hit the national retirement age you actually do get a monthly bonus if you wait to collect Social Security. But that bonus will only take you to age 70 and you're not going to make more than around thirty five hundred bucks a month.

Nick Capodice [00:15:32] OK. So I'm not going to get rich on Social Security checks if I made the absolute maximum and Social Security and make about forty two thousand dollars a year which seems like enough if the House and the car are paid off. I didn't have any unexpected medical catastrophes or want to go on vacations.

Hannah McCarthy [00:15:51] Yeah and most people are not even going to make that much from social security checks. The average is closer to just under three thousand dollars a month.

Nick Capodice [00:16:01] Is that enough to live on for the rest of my life?

Cristina Martin Firvida [00:16:04] Very few workers have sufficient savings to really make it on just their savings. That's why we have Social Security. The idea of Social Security has always been to form the bedrock of your retirement income. And unfortunately for a lot of for a lot of retirees it's their sole source of income. So to your question is it ever enough. It's probably not enough to have a comfortable retirement. If it's the only source of income you have but it is unsafe it sadly for many their only source of income which is why we definitely want to talk about some other supports.

Hannah McCarthy [00:16:43] Lots of people out there depend on Social Security alone and plenty more rely on it to make up about half of their income. So for many many older Americans it can make a huge difference to access various programs that make life easier to afford. And this is also where part two of the insurance puzzle comes in. Health care.

Cristina Martin Firvida [00:17:05] You obviously want to think about signing up for Medicare which is a very important benefit. After you leave the workforce and then depending on you know for some folks there are some additional benefits that a retiree can access as well and those will include nutritional supports and some other supports that are really designed to assist retirees who have very low income in their post work years.

Hannah McCarthy [00:17:32] There are thousands of these programs across the country to help with prescription drugs housing issues transportation home care services and the hundred plus other things that can crop up in retirement all right.

Nick Capodice [00:17:44] It's time for me to confess something my eyes just glazed over a little when you mentioned Medicare only because health insurance is so much to comprehend. What do I need to know.

[00:17:54] Bare bones.

Hannah McCarthy [00:17:55] OK bare bones. Medicare. Medicare is federal health insurance. It's for people 65 and older. Some younger people with disabilities and people with kidney failure. Medicare is also funded by payroll taxes and some elderly people are eligible for Medicaid too which is typically free comprehensive health care. But there is a catch.

Cristina Martin Firvida [00:18:17] A lot of individuals are surprised that they often will need supplemental health insurance or that they will need to think about budgeting for for the high cost of medicine. We're very focused on the high cost of drugs and we are in the in the middle of a really big push both at the federal and state level to do something about high prescription drug prices. I want to make sure your listeners realize that the median annual income for Medicare beneficiaries is only twenty six thousand dollars. That is not a lot.

Hannah McCarthy [00:18:54] All right Nick how are we feeling about the prospect of retirement so far?

Nick Capodice [00:18:58] I honestly don't know if I'm going to budget for the surprise stuff. I'm terrible at budgeting first off. What if I want to travel to China or start a huge board game collection. I don't want to just scrape by. Is it possible for me to not just scrape by.

Hannah McCarthy [00:19:14] Yes. Nick we've arrived at Part 3 of the wild world of retirement prep savings. Oh man. Here's Tom again.

Tom Margenau [00:19:24] The thinking was you should get about a third of your retirement income from Social Security another third from savings or investments and another third from maybe a pension from your employer. But that was they always they called it a three legged stool.

Hannah McCarthy [00:19:40] It used to be relatively common for an employer to offer a traditional pension plan when you left your job your employer would provide you with retirement benefits based on a fund that they paid into and maintained. But the burden being on the employer is part of the reason that the traditional pension has become pretty rare. It's mostly government workers and a handful of private employees who get these now after some unfortunate incidents in the 60s including pension funds drying up. Two things happened. One Congress passed the Employee Retirement Income Security Act ERISA in 1974 which laid out some basic rules for retirement plans and established a corporation to cover pensions. If that company does go belly up to traditional pension plans started to decline.

Nick Capodice [00:20:28] So back in the day a lot of people had said traditional pension options. That's like one leg of my retirement stool and then maybe I've made some investments of my own or I've save some. That's another leg.

[00:20:39] And Social Security is the third leg.

Tom Margenau [00:20:41] So a Social Security benefit is roughly for the average retiree if this isn't something like 40 percent 30 to 40 percent of their pre-retirement income. And then it's up to the person getting benefits to make up the other two legs of that stool so that it isn't a wobbly stool.

Nick Capodice [00:21:00] But if my pension leg is kicked off I'm standing on a wobbly stool. Hanna I would rather not be on a wobbly two legged stool the rest of my life.

Hannah McCarthy [00:21:09] Okay. It is not as easy as it used to be to have a nice sturdy three legged stool of retirement. But there are options. Here's Cristina again.

Cristina Martin Firvida [00:21:20] There's been more and more responsibility put on individual workers to save for their own retirement. In 1983 only 12 percent of workers were being put into a for one case style savings plan. But today at the current time 73 percent of workers who are offered any kind of retirement plan at work are offered only a for one case style savings vehicle.

Hannah McCarthy [00:21:50] There are tax incentivised retirement programs out there that can help you save even if your employer doesn't offer you one.

[00:21:56] You can get a retirement account with a bank or a credit union or a broker. You can also make your own investments. If you're lucky enough to have the funds or try to stash things away in a savings account even putting a little bit away. Cristina says makes a difference when the day comes to start planning out your retirement.

[00:22:15] Oh and one more thing. Talk to someone who understands money. You don't have to and really shouldn't go through this process alone.

Cristina Martin Firvida [00:22:26] There are a lot of conflicts of interest in the financial advice world. They're not all disclosed. It can be difficult to know what fees you're being charged what commissions you're being charged what recurring fees you're being charged. It's really important to ask those questions. They can be uncomfortable questions to ask. I know it from personal experience but it's your money you saved it you need it for your retirement and you need to know what's going to happen to have money. So make sure the advice you get is best for you. The only way you can know that. Is if you ask those questions.

Hannah McCarthy [00:23:18] Okay Nick what do you think is retirement less of a dark looming forest creature now.

Nick Capodice [00:23:26] It is still a lot to take in.

[00:23:29] But I feel like it has gone from being something I just didn't want to face to being something that's like possible to face now.

Hannah McCarthy [00:23:36] And necessary to face.

Nick Capodice [00:23:37] Whether I like it or not.

[00:23:39] But to be honest I'm still not thrilled with the prospect.

[00:23:42] This whole thing still means at the end of my job and getting older and dealing with all this stuff that I don't want to deal with.

Hannah McCarthy [00:23:49] I think it's time to bring Bart back in.

Bart Astor [00:23:52] I'm 70. I figure I'm going to live to be 90.

[00:23:55] Could be more could be I could get it tomorrow by the bus. OK.

[00:23:59] But I have to assume I have 20 plus years.

Hannah McCarthy [00:24:03] The foggy shroud around retirement and aging has I think a lot to do with the fact that we don't want to pull back that shroud for many people money and aging does causing diety and anxiety can mean that we don't prepare for what's coming because we just don't want to look at it.

[00:24:23] So Bart's advice. Look at it. People it's coming.

Bart Astor [00:24:30] The batter hit the ball with the ball with cleats. We know it's coming at it's time. You know I'm 64 and a half and I have six months before I get on Medicare or retire or whatever. Do nothing. If the ball is already in the air and it's not going to change course it's done all the sudden going to veer left just expressed.

[00:24:53] I because I close my eyes. It's it's coming. So I put my hand out and I catch the ball or I don't.

Nick Capodice [00:25:01] I want to catch the ball. I do that we may find the facts of retirement may be boring or intimidating. Basically we have to pay attention if we want the whole thing to be smoother less surprising.

Hannah McCarthy [00:25:13] Nick, should we run a final test to see if things have improved in the dread department.

Nick Capodice [00:25:18] I'm ready.

Retirement Ad [00:25:20] Why earn my mutual fund fees so high my returns so low and yet you guys keep putting up record profits year after year. You'll see the results in the end. It's a long term game. It's not a game. It's my retirement it's my family's future.

Hannah McCarthy [00:25:40] Getting real there was a tough one. But how do you feel.

Nick Capodice [00:25:46] I feel okay. I feel a little inspired actually. How about you.

Hannah McCarthy [00:25:49] I think the shroud of dread has been lifted. I can successfully watch an entire 30 second retirement commercial without total dread.

Nick Capodice [00:25:59] Eyes on the prize Hannah. It's just.

[00:26:03] That it's like one big ole elephant that we're kind of skirting around here.

Hannah McCarthy [00:26:08] But we're paying attention we're looking forward we got it down.

Nick Capodice [00:26:11] We're not looking all the way forward.

Hannah McCarthy [00:26:14] All the way forward?

Nick Capodice [00:26:15] All stories least the good ones have a beginning a middle and an end. And Hannah. We got to take that step into the most existential of all life stages. The final stage.

[00:26:28] That's next time on Civics 101.

[00:26:41] This episode of Civics 101 was produced by me. Hannah McCarthy with Nick Capodice. Our staff includes Ben Henry, Jacqui Helbert and Daniela Vidal Alee. Erika Janik is our executive producer.

[00:26:51] Maureen MacMurray has been planning her retirement partisan she was a little girl.

[00:26:54] The theme is circus music in this episode by Blue Dot sessions D.R. and scan globe.

[00:27:00] There's so much to see and do at our Web site civics one to one podcast dot org. You can drop us a line or donation if you're so inclined. We really really truly couldn't make this show without your support.

[00:27:11] Civics when one is a production of NH PR New Hampshire Public Radio and is supported in part by the Corporation for Public Broadcasting.

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Made possible in part by the Corporation for Public Broadcasting.

Life Stages: Marriage

Today, what does it really mean to be married? Divorced? What changes in the law's eyes?  What do you have to do? And, most importantly, how and why has the government decided who is allowed to marry whom?

And while we're at it, what does love, Pocahontas, or a credit card application have to do with any of this?

Today's episode features the voices of Stephanie Coontz, Kori Graves, Dan Cassino, Leah Plunkett, and dozens of County Clerks. 

Click here to get a Graphic Organizer for notetaking while listening to the episode.

Episode Segments

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TRANSCRIPT

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

Civics 101

Life Stages: Marriage

 [00:00:00] When you two met there was probably an early physical reaction. Romantic attraction pulling you together... a love appeal that hit you sort of. Buying.

 [00:00:12] How did you know? Well it happened to me. It happened to some degree to most couples who become happily married. Boing. Boing. Boing?

 [00:00:24] Why yes, I think you've made a good start towards getting ready for marriage.

Hannah McCarthy [00:00:33] Boing?

Nick Capodice [00:00:34] There is no shortage of clips like this on YouTube Hannah. Dozens of educational films from the 1950s like 'Should I Get Married' 'Going Steady' or 'A Boy's Fancy.'

 [00:00:45] Don't change the subject. Do I look good in a chiffon nightgown or don't I? Or don't you notice anymore?

Nick Capodice [00:00:50] We have arrived at our fourth step and the life stages series here at Civic one. I'm Nick Capodice.

Hannah McCarthy [00:00:56] I'm Hannah McCarthy.

Nick Capodice [00:00:57] And today we're talking about marriage.

 [00:01:02] Married life is no Hollywood moonbeams and honeysuckle but it can be mighty satisfying at times.

Nick Capodice [00:01:08] It's easy to mock these 1950s sexist education reels but one thing I will say it is no wonder there were so many about marriage after World War 2. There was a spike in marriages and divorces higher than ever before in the U.S. Couples rushed to the altar after the war was over and some who had maybe gotten hastily married before the war filed for divorce immediately after.

Hannah McCarthy [00:01:30] It seems strange doesn't it.

Nick Capodice [00:01:33] What do you mean.

Hannah McCarthy [00:01:33] I mean you're doing this thing that feels so personal. And you're thinking about where you're going to get married and what you're gonna say and this whole new life together and an engagement party and telling family and friends and then it's like, well now I gotta figure out what forms we have to fill out.

 [00:01:50] (phone montage)

Nick Capodice [00:01:59] It's true it's so weird you're like I mean it's like 'aaah!' but then we have to do the thing we have to do this other thing right. What do we do? Let's google it. Getting hitched is not specifically outlined in the Constitution. It's up to the states. The fees, requirements wait times, minimum age of marriage, also up to the states is who can marry you, who can officiate the wedding. Most states say it has to be a recognized member of the clergy, a judge, or a clerk. But states like California permit anyone to apply for permission to become a "deputy commissioner of marriages for the day." Isn't that nice.

Hannah McCarthy [00:02:34] That is nice.

Nick Capodice [00:02:34] You've heard of the Universal Life Church right.

Hannah McCarthy [00:02:37] Is that the one online that gives you the ability to marry someone? Okay.

Nick Capodice [00:02:42] It's a church that allows anyone to become a minister and thus officiate a wedding.

Hannah McCarthy [00:02:45] Got it.

Nick Capodice [00:02:45] As long as they follow the state process. Only North Carolina and Virginia have ruled in court that Universal Life Church marriages are not valid. So when it comes to governmental requirements for getting married you're looking at 50 different sets of rules. So I called a bunch of county clerks.

 [00:03:20] (clerk montage).

Clerk [00:03:27] Are you coming in? Are you doing a license or do you want a certificate.

Hannah McCarthy [00:03:30] Yeah Nick. Which one did you want?

Nick Capodice [00:03:33] I froze up. I wasn't sure, I had to ask her which was which.

Clerk [00:03:35] It's like a driver's license. You'd get a license to get married and then afterwards we would mail you acertificate.

Nick Capodice [00:03:40] These are the two documents you need to get from the government to get married; one before and one after you tie the knot. So I obviously need a license first and the costs and requirements to get one of those not only vary by state but sometimes even by county.

Clerk [00:03:53] What you would need to bring with you is an original birth certificate for both of you or either a certified copy of your version.

Clerk [00:04:00] Both parties must be present with a photo I.D. and be at least 18 years of age.

Nick Capodice [00:04:07] Sometimes you both have to be there. Sometimes just one of you. The I.D. needed varies, it can be birth certificates or social security card or a passport. They almost always need a driver's license and the price is on average around 40 dollars but it can be as little as five dollars, in Oklahoma.

Clerk [00:04:22] If you if you go through the two together class then there is then you get a discount.

Hannah McCarthy [00:04:27] Wait what's that.

Nick Capodice [00:04:30] Some states; Texas, Minnesota, Tennessee, and Oklahoma, offer you a discount on your marriage license if you take a premarital education course.

Clerk [00:04:38] We do offer a discount for people who take 12 hours of premarital counseling through an educator of their choice.

Hannah McCarthy [00:04:46] 12 hours.

Nick Capodice [00:04:47] But in Minnesota that knocks it from 115 dollars down to 40 bucks.

Clerk [00:04:51] The bride if under the age of 50 must provide a proof of a rubella blood test or a doctor's statement regarding sterilization.

Hannah McCarthy [00:05:00] Wait. What? I mean first off why rubella. Second off why do they have to show proof of sterilization.

Nick Capodice [00:05:09] So Montana is the last state to have a blood test to get a marriage license and they're testing to see if you've been vaccinated for rubella which is also called German measles which passes onto a fetus and can cause birth complications. If you show that you've been sterilized you don't have to prove that you've had a rubella shot because you're not gonna have kids anyway. All that said the CDC claims there's about 10 cases in the nation of rubella every year and since 2007 actually in Montana as long as you and your spouse both co-sign a document and say we don't care you can opt out of the blood test.

Clerk [00:05:38] If there have been previous marriages we need to see a death certificate or a divorce decree.

Nick Capodice [00:05:45] All right here we have reached our first national constant. If you've been married before you have to provide details on the dissolution of your previous marriage to get a new one. Some states just need some relevant details and a lot of others need to see the documents.

Hannah McCarthy [00:06:03] So what happens if you say that you're divorced. But it turns out you are not. Is your new marriage just null and void.

Nick Capodice [00:06:12] Oh I asked.

Clerk [00:06:13] That is a legal question that I wouldn't touch with a ten foot pole.

Dan Cassino [00:06:18] So the marriage certificates are this great example of federalism.

Nick Capodice [00:06:21] He's been on the show so much he's got his own theme music. That's Dan Cassino, political science professor from Fairleigh Dickinson University.

Dan Cassino [00:06:27] Every state has its own rules for marriage certificates. And when you can get married and when you can get divorced and this led to a lot of forum shopping. And so libertarians and people who believe strongly in federalism are going to argue that this is the real strength of federalism, that everyone can choose which laws they want and they go and they vote with their feet. And if you are a state with good laws more people come to your state. If your state has bad laws, fewer people come to your state. What this meant in terms of marriage is that basically if you want to get married quickly you just went to a state where you get married easily. So you just went to Delaware and then you can go to Delaware and get married within three hours. You don't have to wait three weeks to have a blood test didn't have to do anything.

Hannah McCarthy [00:07:04] This is where we get the trope of the drive-through wedding in Las Vegas, right.

Nick Capodice [00:07:09] Yes. Right and this goes for divorce as well.

Dan Cassino [00:07:11] And if you wanted a divorce as recently as the 1940s if you wanted a divorce you had to go to Nevada you had to set up residency in Nevada. So sometimes you'd have to live there for as much as 60 days to establish residency and then you get divorced within a week. If you were in California for instance you wanted to get a divorce that divorce took a minimum of one year in an effort to try and get the couple to reconcile, the courts say great you filed for divorce. We'll see you in a year. And so going Nevada was actually a much easier way to do this.

Nick Capodice [00:07:38] So California no longer requires you to try to make things work for a year.

Hannah McCarthy [00:07:42] No?

Nick Capodice [00:07:43] Now it's down to six months.

Hannah McCarthy [00:07:45] Oh. But why do you even need a marriage license. It's not like driving where you could injure others if you don't know what you're doing. So why does the government make you get a license and a certificate?

Leah Plunkett [00:07:59] Because otherwise you could be married to like 100 people and how would the state know?

Nick Capodice [00:08:04] This is Leah Plunkett. She's the associate dean for administration and director of academic success at U N H law.

Leah Plunkett [00:08:10] The same way that we get a birth certificate or a death certificate, the state does very legitimately need a way to keep track of people and their various familial statuses. Again not not too focused, right. The state isn't going to ask you to get a license if you're not married to your significant other and you break up, right. You don't need to let the state know we live together for 10 years and it just didn't work out. And I'm really sad that he got to keep the cat.

Hannah McCarthy [00:08:37] But what's the reason that the government needs to know your marital status or that you're not married to like 100 people.

Nick Capodice [00:08:45] There's no federal law about it but all 50 states have laws against polygamy, being married to more than one person. Monogamous marriage is very ingrained in Western culture and in mainstream Christianity. Polygamy was allowed in Utah before it became a state. But Utah was required to ban it in its constitution to gain statehood. Some states make it a criminal offense if you have more than one marriage certificate.

Hannah McCarthy [00:09:09] So now I have to ask. I've always been so curious, what actually changes for you in the eyes of the law when you get married?

Leah Plunkett [00:09:20] Closet space. Sorry.

Leah Plunkett [00:09:25] Everything really. And and so what is what is changing is how the government regards you and your familial affairs. Not your professional affairs, right. So back even up to the certainly 1950s probably into the 1960s or even 70s in some places there were restrictions on a married woman's ability to engage in the professional workforce without going through her husband in terms of her ability to own property.

Nick Capodice [00:09:58] In 1974 the Equal Credit Opportunity Act passed in the U.S. and until that point a bank required your husband to accompany you to co-sign a credit application. Like to get a credit card.

Hannah McCarthy [00:10:13] But if you were a single woman you could get a credit card by yourself right.

Nick Capodice [00:10:18] No. You had to have a man go with you and co-sign.

Hannah McCarthy [00:10:22] It should surprise me. But it does not.

Nick Capodice [00:10:24] Also in the eyes of the law you can confide in your spouse places where you couldn't confide in your friend for example.

Leah Plunkett [00:10:32] If you're engaging in a private marital communication with your spouse no one's overhearing it you intended to be private. If there are then some sort of government proceeding against one or both of you you can claim spousal privilege in regard to the contents of that conversation. It's in that same very broad umbrella as lawyer/client doctor/patient each one of them are very different too. But that is the same basic idea of the government recognizes certain types of relationships as being so foundational to your sense of self, to your well-being, and so inherently private that they will wall them off from being able to be pierced by the government in the course of a law enforcement administrative regulatory proceeding.

Nick Capodice [00:11:26] But one of the biggest changes legally when you're married is that resources can be shared. You and your spouse can now collect assets known as joint property. You can share bank accounts you can share your stuff your house and your debts.

Hannah McCarthy [00:11:41] So if you owe money I'm mortgage and you die. Your spouse can't just walk away whistling airily, the debt doesn't disappear.

Nick Capodice [00:11:53] Right. And when you file your taxes you can choose to file them jointly with your spouse and possibly lower your tax bill. If some rando, Hannah, gave you a gift of a million dollars out of the blue you'd have to pay taxes on that gift. But married couples can exchange money gifts tax-free. Have you seen Shawshank Redemption?

Hannah McCarthy [00:12:10] Many times.

 [00:12:11] If you want to keep all that money give to your wife. The IRS allows a one time only gift to your spouse for up to 60 thousand dollars.

Hannah McCarthy [00:12:18] I think of it as like an emotional scene more than an informational scene.  I know we're a civic show not a show about the affairs of the heart. But it feels like we're being just a little cold and calculating here. Marriage is ideally an expression of love and people have fought to have the right for that expression.

Nick Capodice [00:12:40] All right. So we're gonna have to go back a little bit. Maybe more than a little bit.

Hannah McCarthy [00:12:51] Horse and Carriage a little bit?

Nick Capodice [00:12:53] Maybe further.

Hannah McCarthy [00:12:53] Magna Carta kind of far?

Nick Capodice [00:12:55] Just a quick jaunt to like 2300B.C.

Hannah McCarthy [00:13:00] Ok so the Mesopotamians.

Nick Capodice [00:13:01] Yeah. The first evidence of marriage Mesopotamia 2350 B.C. Hannah, your and my concept of marriage is super duper recent.

Stephanie Coontz [00:13:16] We tend to think about tradition and rather truncated ways.

Nick Capodice [00:13:20] This is social historian Stephanie Coontz author of Marriage a History or how Love Conquered Marriage and it's implied in the title of her book. Love had nothing to do whatsoever with marriage.

Stephanie Coontz [00:13:33] Marriage started out as as the main way that in the absence of a fully developed banking system and wage system, marriage was the main way that people raised capital, made political connections, made alliances. And it was also used as a way of recognizing the citizenship of a man. A man was not considered fully adult until he had a wife to be a co-worker. One of the things that's interesting to modern people is we sometimes think of the male breadwinner marriage as traditional. But in fact it was not through most of history. A man needed a wife to run a farm or to run a small business and in fact colonial authorities often forbade a man to open a small business or especially an inn if he didn't, if he wasn't already married.

Hannah McCarthy [00:14:29] Okay so this isn't just ancient history. This continues even to colonial America.

Stephanie Coontz [00:14:35] So by the time the colonists came to America you had two different interesting marriage systems going. that of the Native Americans which was still based on making kinship alliances and connecting groups that were far flung so that you married out of your group and you had in-laws and therefore obligations and favors with another group. But by this time the practice in England was more endogenous marriage, to marry people of the same class or in the same grouping. And that was still very tightly controlled by parents. In fact in New England one of the laws was that if you won the affection of a young woman without having had the permission of the father the young man could be whipped.

Nick Capodice [00:15:25] The reason that parents were so controlling is because until about two hundred years ago the explicit goal of marriage was to acquire useful in-laws and gain political and economic power.

Hannah McCarthy [00:15:34] So when does this shift. When do people start to choose their own spouses?

Nick Capodice [00:15:38] In the late eighteen hundreds. People start to be paid wages wage labor when work in America wasn't so dependent on your spouse and you'd like go to work for someone else instead. Marriage could kind of start to move away from this economic agreement and that's when we start to see the rise of what historians refer to as the love match; couples getting married because they want to.

Stephanie Coontz [00:16:01] But the other interesting thing that happen and this is also particularly American is that the government began to use marriage as a way of distributing resources, rights, and obligations to people that in some other countries were more universally targeted. Instead of giving a right to health care or Social Security directly to people as they aged it began to be channeled through whether they were married. So employer, you only got health care if you were married to someone who was employed to an employer who offered health care.

Hannah McCarthy [00:16:40] Why did they start to do it that way.

Stephanie Coontz [00:16:43] It was cheaper than giving universal citizenship rights to people. But also there was the sense that existed for quite a while that marriage is something that stabilizes people, especially in the years of the male breadwinner marriage, which as I say was a pretty modern invention. But in the 20th century the ideal was that if the men could earn enough to support a family the woman would stay home and take care of the kids. And therefore society wouldn't have any responsibility for that. And furthermore the man would work much harder because he had to support a family.

Nick Capodice [00:17:24] But the other side of this is that once these benefits are tied to the institution of marriage, unmarried people don't have access to them.

Stephanie Coontz [00:17:32] But the right not to marry became very much penalized because you couldn't get access to these kinds of; you couldn't you couldn't automatically choose who could inherit from you your partner wouldn't have the right to visit you in the hospital.

 [00:17:49] Excluding same sex couples for marriage thus conflicts with a central premise of the right to marry inflicting stigma uncertainty and humiliation on the children of same sex couples through no fault of their own.

Nick Capodice [00:18:00] This is Justice Anthony Kennedy reading the Supreme Court decision from Obergefell v Hodges in 2015, a narrow 5 to 4 decision which altered federal law and it required all states provide a license and legally recognize same sex marriages. Because we haven't talked about the most important way the government interacts with you when it comes to marriage, when it decides who can marry whom. That's coming up after the break.

Nick Capodice [00:18:28] To understand the history of who can get married in the U.S. I spoke with Kori Graves.

Kori Graves [00:18:33] My name is Kori Graves and I'm a Professor of History at the University at Albany, part of the SUNY system. I teach courses on marriage and family women gender and race.

Nick Capodice [00:18:45] And she explained it through the lens of three laws that were passed in Virginia.

Kori Graves [00:18:49] Because when we think about the limitations on marriage it reaches back to the earliest days of the colony in Virginia. If we look at sort of this question of Virginia and the history, Pocahontas and John Rolfe represents one of the first of what we could consider an interracial marriage.

Nick Capodice [00:19:07] Just to jump in here if you're like me and relied heavily upon the song 'fever', or if you relied upon the Disney movie for this history, Pocahontas didn't marry John Smith. She married John Rolfe. And there is evidence that she'd been married before John Rolfe, had a child, and was kidnapped from her tribe to form the alliance with Rolfe.

Kori Graves [00:19:26] That particular marriage was celebrated because it represented a kind of old alliance Old World Alliance and also the alliances that we think about in New World contexts too. But rather quickly in the colony. Individuals started to transform how they thought about that relationship because of ideas about superiority inferiority and the status of women. So she and John Rolfe married in sixteen fourteen. They had a son they traveled to England and 16 16 and she dies on the way home.

Nick Capodice [00:20:01] And at that time Virginia starts to pass laws that specifically forbid not just interracial marriage but interracial sex.

Kori Graves [00:20:07] So that begins in 1630 we see the governor ordering the whipping of a white man for interracial sex. He defiled his body with a Negro. We start to see that so as early as the 16, the mid 1600s you see that while there was a promise in the Pocahontas John Rolfe relationship of individuals imagining that you could cross certain borders, that, that begins to quickly erode.

Nick Capodice [00:20:38] One especially problematic part of the relationship was their difference in status. The British didn't see the Algonquin as equal and there was some thought that marriage could be used to help Native people be more like white Europeans.

Kori Graves [00:20:50] So it's not that this marriage represented a kind of equal footing in any way. In fact she was considered, because she was female, she would have lost her status that, the status that she had as a favored daughter in the tribe who had power and a matrilineal society. She would have lost that by becoming the wife of a British subject who understood patriarchy as the appropriate order for society and for family. So that relationship is not...it's problematic but it also represents the first. Throughout the 1600s, 1700s, 1800s you get the elaboration of laws defining who could marry whom and these laws are always about creating a boundary between First the British colonist and later Anglos, American Anglos. That said they can only marry Anglos. So in terms of who could marry whom when we think about it as a way of creating a kind of white supremacy, and I use that word deliberately because by the time we get to the 20th century and one of the most restrictive laws about both marriage and immigration it is it is about the law itself is about preserving white supremacy.

Nick Capodice [00:22:14] In 1924 the United States passes the Johnson Reed act which is all about restrict immigration using race based quotas which by the way is not lifted until 1965. And this is why we have enormous immigration from Italy and Eastern Europe until 1924 and then it just stops. And Kori told me about another 1924 law passed, again, In Virginia.

Kori Graves [00:22:35] The state legislature passed what was called an act to preserve racial integrity. And what this law did was it prohibited any white person from marrying anyone who was not white. It also said that any interracial marriage that took place outside of Virginia, Virginia wouldn't recognize. So you couldn't go outside of the state boundaries come back and say hey we're legally married and this marriage is recognized across these borders because marriage is each state gets to define its marriage laws. So that's the law that was in place and it was again a product of centuries of defining and actually limiting who could marry whom.

Hannah McCarthy [00:23:22] How did they actually go about enforcing this? With paperwork?

Kori Graves [00:23:25] So this law specifically required things like birth certificates that you could prove who you were. It looked at things like blood quantum. But it also has a very curious exception. It was called the Pocahontas exception. And it said that a person who could claim one sixteenth or less Native American heritage could still marry a white person.

Hannah McCarthy [00:23:50] Why on earth would they create that super specific specification.

Nick Capodice [00:23:54] We're still in Virginia and this goes back to the John Rolfe Pocahontas marriage. Lots of wealthy elite first family Virginians proudly claimed descendancy from the Pocahontas John Rolph marriage and they didn't want to have to jeopardize their status. This racial integrity Act is law in Virginia until one of the most famous marriage Supreme Court cases in our history.

 [00:24:19] That there is much more deference here that there is actually one simple issue. The issue is may a state proscribe a marriage between two adult consenting individuals because of their race. And this would take in much more...

Kori Graves [00:24:32] I always think. What more fitting name than Loving. That's his real last name, is loving.

Nick Capodice [00:24:43] 1958 Richard and Mildred Loving got married in Washington D.C. because they couldn't marry in Virginia because he was white. She was an African-American. And they returned home.

 [00:24:56] It was about 2am, and I saw this light you know and I woke up and there was the policeman standing beside the bed. And he told us to get up and that we were under arrest. And they told us to leave the state for 25 years.

Hannah McCarthy [00:25:10] They have to leave for 25 years. They'd have to completely dismantle their life.

Nick Capodice [00:25:15] And they did. For their marriage. They left their jobs their home their family and they moved to D.C. and they were arrested when they just came back to visit their hometown.

Kori Graves [00:25:25] And this case would actually make its way through the Virginia State Supreme Court to the U.S. Supreme Court and it would be Loving v. Virginia that would establish the right to marriage as a protected civil right. Chief Justice Warren would offer the argument that marriage was, and this is a quote, one of the basic civil rights of man. And the end here is is added to deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in the Virginia racial integrity clause is surely to deprive all the state's citizens of liberty without due process of law.

Nick Capodice [00:26:09] This was a unanimous decision by the way in 1967 but it still meant that each state had to change their laws so Virginia did in1968. West Virginia Florida Oklahoma and Missouri in 1969 North Carolina in 1970 Georgia Louisiana and Mississippi in 1972 Delaware and Kentucky in 1974. Tennessee in 1978 South Carolina in 1998 and Alabama in 2000.

Hannah McCarthy [00:26:43] This is like what we continue to hear about officials refusing to grant licenses to same sex couples. As we speak. Even though the decision came down years ago that same sex couples can marry.

Nick Capodice [00:26:57] Right and the Loving decision was cited in that case Obergefell v. Hodges and it's not just officials it's politicians who are proposing bills.

 [00:27:05] Specifically a bill that was just filed in the Tennessee legislature, the Tennessee natural marriage Defense Act and this would define a natural marriage as between a man and a woman of course we know there's going to be lots of strong opinions on this...

Nick Capodice [00:27:25] Last thing we should talk about for the end is the end. When a marriage just doesn't work. The 2019 divorce rate in the United States is about 39 percent.

Hannah McCarthy [00:27:36] Okay. When did divorce start to become a common thing in America.

Nick Capodice [00:27:40] Stephanie Coontz told me about that.

Stephanie Coontz [00:27:42] With the development of the love match and this was one of the tremendous complaints that defenders of the real traditional marriage of political and economic convenience had against the love match. They said, look, if you say marriage is about love people are going to demand the right to divorce. If marriage ceases to be about love and that has been a steady steady increase in demands. They began to liberalize a little divorce right fairly early in the colonies that happened more after the American Revolution but still our laws right up until 1970 were based on fault based divorce that you had to show that the other party was at fault.

Nick Capodice [00:28:24] And if you're wondering what can justify a fault divorce the most common grounds are adultery, abandonment, prison confinement, one spouse is physically unable to have sexual intercourse, or one spouse has inflicted emotional or physical pain on the other.

Stephanie Coontz [00:28:41] And many people romanticize this, they think oh marriage was more stable under fault-based divorce but fault based divorce was really weird. You had to come to the court...it was,  this is the way the courts put it, with clean hands if you wanted a divorce. In other words if you came in and couldn't prove that you had done nothing to contribute to the complaints of which you you were wanting for which you were wanting the divorce you couldn't get a divorce. There was a divorce in the 1930s in the state next to mine, Oregon Mauer versus Mauer. The court found that the family lived in terror of the man's you know terrible temper and temper tantrums but they found that the wife had thrown pots at the man a couple times. So therefore since neither party came to court with clean hands neither of them could have a divorce.

Nick Capodice [00:29:33] In 2010 New York State became the 15th state to allow for no fault divorces. So now you can get one all over the country. One or both of the spouses has to claim that the marriage is "irretrievably broken" or you have irreconcilable differences.

Hannah McCarthy [00:29:51] But still in California and you told me you got to wait six months before you can get divorced.

Nick Capodice [00:29:58] Sure do. And in Virginia you have to live apart from your spouse for a year uninterrupted or if you have kids six months. Seventeen states require divorcing parents attend a divorced parent education class.

Hannah McCarthy [00:30:09] All of that statutory red tape aside I do feel like we have come a long way since the Mesopotamians.

Nick Capodice [00:30:17] Wwe have and so much of it is so recent. Stephanie Coontz told me that for thousands of years the institution of marriage is relatively unchanged. But when we start with the love match moving through the 19th 20th century, especially the last 40 years, the benefits of being married are covered in other places.

Stephanie Coontz [00:30:36] Americans no longer feel that marriage is essential to have a successful life. Back in 1950, 85 percent of Americans said that it was immoral or deviant or psychotic to want to be single not to be married. And there were all sorts of social and legal sorts of discrimination that occurred if you were not married. Nowadays people accept that you can have a good successful single life but marriage is not central. But at the same time as we have stopped valuing marriage so much as a mandatory institution we have actually increased our expectations of it as a good qualitative relationship. And the paradox is that we expect more of marriage when we're married and we do marriage better, most of us when we're married than people of the past. There's less domestic violence, there's more equality there's more sharing there's more intimacy, but people aren't willing to enter or stay in a marriage that doesn't live up to that. And so people are postponing marriage.

Hannah McCarthy [00:31:43] It's almost like she's saying we're more likely to marry for love and like a really solid well-established love because otherwise women and LGBTQ people have actual codified rights now. And so like I can get a credit card, I can own property, I can adopt a child by myself if I want to. I don't have to marry a man to live out certain important steps of life.

 [00:32:13] So now are a little hypothetical American has been born, educated, worked, married, divorced and after all that stuff isn't it time that this American had a break, Hannah.

 [00:32:27] I think it is but that's next time on Civics 101.

 [00:32:43] That'll just about do it for today. This episode was produced by me Nick Capodice with you Hannah McCarthy. Our staff includes Jacqui Helbert Ben Henry Daniela Vidal Ali and Erika Janik is our executive producer and killer of Darlings. Maureen MacMurray and her husband Danny totally go boing.

 [00:32:58] Music In this episode is by Broke for Free. Chris Zabriske Kilo Kaz, Lee Rosevere Scott Gratton, Spazz Cardigane and this year is time.

 [00:33:07] I love me some time. Carl if you like Johnny is Kovac gonna hop out any minute and push me off my bike.

 [00:33:11] Seventy one is supported in part by the C P B and is a production of N H PR New Hampshire Public Radio and it is supported in part by you gentle listener.

 [00:33:21] Thank you so much to those of you who given already. If you haven't got a civics one to one podcast dot org. Check out the kind of swag we have on offer and thank you so much.

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Made possible in part by the Corporation for Public Broadcasting.

Life Stages: Work

The modern day workplace is the product of a centuries-long battle for fair wages, reasonable hours and safe conditions. Today's episode tells the story of the labor in the United States - from slavery and indentured servitude to the Equal Pay Act and the weekend. What did Americans workers have to go through to make their voices heard, and how did they change labor in America?

Our guests include Priscilla Murolo, Philip Yale Nicholson and Camille Hebert.

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TRANSCRIPT

Please note: this transcript may contain discrepancies.

Civics 101 Life Stages: Work

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

Hannah McCarthy [00:02:40] Nick can you believe that we're at work right now.

Nick Capodice [00:02:42] Yes. That is where we work.

Hannah McCarthy [00:02:44] But I mean our job is to learn stuff and then tell other people what we've learned.

Nick Capodice [00:02:50] Yeah I see what you're getting then we got a bit of a dream job here.

Hannah McCarthy [00:02:53] We got a bit of a dream job. Also the hours are reasonable.

Nick Capodice [00:02:56] True.

Hannah McCarthy [00:02:57] We aren't locked into the building.

Nick Capodice [00:02:58] Also true.

Hannah McCarthy [00:03:00] The air is breathable.

Nick Capodice [00:03:02] Yeah.

Hannah McCarthy [00:03:02] Nobody physically threatens us.

Nick Capodice [00:03:05] Hold on.

[00:03:05] Not that I'm not grateful and all but can I just say of course we're not Lowell mill girls in nineteen hundred. We're Republic radio hosts in 2019.

Hannah McCarthy [00:03:15] That's a good point. But you know we didn't get here by accident. People had to ask for better conditions demand better conditions our jobs look the way they do because of hundreds of years of protests strikes rallies negotiations and legislation.

Nick Capodice [00:03:31] So it all started back in the 20th century.

Hannah McCarthy [00:03:34] Actually we get to go back even further than that way back. The story of work in the United States begins before we were the United States and my work in the United States by the way is cohosting Civics 101. I'm Hannah McCarthy.

Nick Capodice [00:03:48] And I'm Nick Capodice. And to understand the way that work works in this country.

[00:03:58] It helps to understand where we came from in order to get to ergonomic office chairs and lunch breaks and safety measures and a living wage.

[00:04:11] We had to pass through grueling hours child labor factory fires and futile strikes. Through unpaid labor servitude and abuse through the enslavement of millions of people in the name of capitalism.

Priscilla Murolo [00:04:34] Well.

[00:04:34] The vast majority of working people in the colonies were bound laborers in some way.

Hannah McCarthy [00:04:42] This is Priscilla Murollo. She's a history professor at Sarah Lawrence and co-author of From the Folks who Bought you the Weekend.

Priscilla Murolo [00:04:49] They might be apprentices who were legally bound to work for their master craftsman. They might be indentured servants who were bound for a period of years or they might be enslaved. But they were bound to in some way wage work as we know it. Selling your labor and having the right to quit an intolerable job was quite rare.

Hannah McCarthy [00:05:14] When Priscilla says bound laborers. She is talking about people who cannot quit. Some were obligated to work for say a master craftsmen for a period of time so that would be an apprentice working in exchange for learning a craft. Others were indentured servants working to pay off a debt like passage to America. Those were almost without exception white people and then there were those who are obligated to work because they were enslaved and owned by another person. Those were almost without exception people of color. Work was a very different thing for most people in colonial America than it is today.

Priscilla Murolo [00:05:52] The settlers of that colony preferred indentured labor to enslaved labor because it was more expensive to buy in and enslaved workers than it was to buy and intentioned workers someone enslaved only for a short period of time and chances were that the Labor was only going to live a few years anyway because the work was very hard and the swamps carried a lot of fever.

Hannah McCarthy [00:06:20] But it wasn't just hard risky work that went into being an indentured servant. These positions were oppressive and bound by contract indentured servants were forbidden to quit. They needed permission from their master to get married. They were sometimes beaten.

[00:06:36] But if they lived long enough they would eventually work off that debt.

Nick Capodice [00:06:43] Right. And their conditions were I imagine were nowhere near as bad as enslaved people.

Hannah McCarthy [00:06:48] Right. That's a good point. We're going to be talking about a perception of some common experience here but enslaved people were bound for life. They were often shackled whipped. Mutilated. Sexually assaulted and sometimes murdered. In many states they were forbidden from being educated. And in all cases actively deprived of personal identity and a sense of humanity. Indentured Servants. By contrast did live under harsh and restricted conditions but they had some rights. The commonality here is being bossed under oppressive conditions of some kind.

Priscilla Murolo [00:07:32] People resist being bussed in all kinds of ways sometimes just passively and sometimes through confrontation. But they have historically resisted it and this is the heart in many respects of the labor movement.

[00:07:48] That and the notion of solidarity.

Hannah McCarthy [00:07:52] Solidarity standing together against a common enemy even though indentured servants were by no means in the same camp as enslaved people.

[00:08:01] Both groups lived under the thumb of the ruling class.

Priscilla Murolo [00:08:04] Especially after a big rebellion in Virginia in 16 76.

[00:08:10] A hundred years before the American Revolution the rebellion called Bacon's Rebellion. This was a big uprising of indentured servants and slaves together.

Hannah McCarthy [00:08:20] This Bacon guy he considered all indigenous peoples to be the enemy of the colonists. He wanted to attack both friendly and defensive tribes and the governor of Virginia was just not having it. So Bacon rallied support.

[00:08:35] He promised freedom to all servants and enslaved people who would join his cause indentured servants united with enslaved people in a common cause. All sharing the bond of bound servitude and this was alarming for the elites.

Priscilla Murolo [00:08:57] The fathers of Virginia the ruling fathers of Virginia thought when had to find a way to divide these two groups and one of the things that they did was to get more generous in the good conditions of bounds laborers to begin to segregate in the law.

Nick Capodice [00:09:16] So the people in charge see the possibility of a unified oppressed class and they're like No way gonna nip this in the bud right.

Hannah McCarthy [00:09:24] Right. They crafted this stark division between races by providing indentured servants and non land owning white males with more rights and power and they passed laws that made relationships between those indentured servants and enslaved people untenable.

Priscilla Murolo [00:09:41] For example if you ran away.

[00:09:44] From slavery or you ran away from an intense shirt you would be punished under the law. But if you ran away together a slave and an indentured servant together they would be punished more severely.

Hannah McCarthy [00:09:56] So now you've got this perception of enslaved people at the bottom of the work ladder and indentured servants are rung above. And Virginia lawmakers also start to lean into language around African descent in 16 22. They codified the idea that slavery is hereditary and lifelong and that basically anyone of color brought into the country as a servant should be considered a slave.

Nick Capodice [00:10:22] So now just just the shade of your skin can mean that you're going to be enslaved or associated with slavery.

Hannah McCarthy [00:10:29] Right. And on top of that they've given white people some rights and power regardless of their status. And that intensifies this us versus them dichotomy and the white US stretches across economic classes for example by the mid 1400's you no longer need to own property to vote. The political parties are still run by elites but those elites now want to woo working whites.

Priscilla Murolo [00:10:55] They want those votes. They want that support to say we have something in common because we are white. I may be a plantation owner and you may be scratching along as a shoemaker but we're both white so we have something in common.

Hannah McCarthy [00:11:16] We'll come back to Priscilla in a moment but I want to introduce another person here.

Phillip Nicholson [00:11:20] I am Philip Nicholson. I'm Professor Emeritus retired from Nassau Community College after 46 years. I guess you could call me Phil but I mean you can introduce me as the author of a book I guess that you came across that seemed to be provocative enough for you to invite me to talk to you about the issues that you're going to bring forward today.

Hannah McCarthy [00:11:44] That book is Labor's story in the United States. And Phil starts that story in the same place Priscilla does with slavery.

Phillip Nicholson [00:11:53] Slave labor that is labor without any rights whatsoever.

[00:11:57] No human rights no civil legal rights no liberties that is rights under the law whatsoever. And that was the preferred and dominant system and when the revolutionary era unleashed calls for Liberty Give me liberty or give me death it awakened the rest of the population including women and some slaves and the formation of antislavery societies start in that period of the revolutionary era and the concept of liberty itself. That is the attainment of rights under the law.

Hannah McCarthy [00:12:31] This idea of liberty catches on in a way that perhaps the elites the orchestrators of the Revolutionary War had not intended employees and enslaved people see the possibility of control over their own lives and their own destiny and that includes control over their work experience in addition to growing abolitionist sentiment.

[00:12:54] There was growing unrest among workers.

Phillip Nicholson [00:12:57] When they first sought to organize if they if you could call it that they didn't even call them unions then.

Nick Capodice [00:13:03] Unions.

Hannah McCarthy [00:13:04] Unions.

International Ladies' Garment Workers' Union [00:13:09] "Look for the Union Label".

Hannah McCarthy [00:13:14] Kind of a union more specifically labor union or a trade union is an organization of workers dedicated to protecting themselves and others in their same field whether it's about wages or hours or working conditions. Most collect dues to keep their activities up and they negotiate with employers they lobby Congress. But the first people who tried to do something like this got into big trouble.

Phillip Nicholson [00:13:39] They were found guilty of engaging in a conspiracy to raise their wages.

Hannah McCarthy [00:13:48] The "they" Phil is talking about is the Federal Society of journeymen Cordswainers of Philadelphia. They were shoemakers employed by master craftsmen and they worked crazy hours to meet the footwear demands of the states but they didn't make very much money. So they organized into this society and demanded more pay for as a judge saw it. They committed conspiracy.

Phillip Nicholson [00:14:10] That's actually from the original 1906 indictment a conspiracy an illegal conspiracy to raise wages and they lost that case and they began in various towns and cities to fight through the local state or city courts and legislative bodies to win the right to associate with one another and they were not successful for the first 25 or 30 years in winning those battles.

Hannah McCarthy [00:14:36] The problem wasn't just that they got low pay.

[00:14:39] It was that the court was essentially saying it's illegal to organize and ask for more from your employers. But that didn't stop all kinds of workers from trying. Here's Priscilla again.

Priscilla Murolo [00:14:50] The first political parties to raise that issue appeared in the late 1920s they were known as the working men's parties that are mostly in the northeast and they had a much more expansive vision of us and them. They thought of themselves as speaking for working men and women usually white working men and women but not necessarily only white working men and women. And they thought of the other as their enemies as the the rich the elite.

Hannah McCarthy [00:15:27] The working class pitting itself against the elite.

[00:15:31] It's something that we've come close to before which is why legislators passed those racist laws that pretty much cemented the fate of people of color in the United States and kept organizing a cross working groups at bay. But this sense of commonality between poor working whites and wealthy elites started to shift with the dawn of the industrial revolution. We went from smaller scale operations and a lot of agriculture work to factories everywhere and with them came terrible working conditions grueling hours and workplace injury.

Priscilla Murolo [00:16:08] There was considerable support for the abolition of slavery among mill workers and Newling England. And it's not too hard to explain because they worked under terrible conditions in cotton mills processing cotton that was cultivate and under terrible conditions by slaves and they often identified with those other workers in the production process and formed antislavery associations that would be based in a factory or based in a union such as the Knights of St. Chrispin which represented shoe workers.

Hannah McCarthy [00:16:49] There was antislavery sentiment among workers. But it's important to note that some of that sentiment came from self-interest rather than empathy. The whole country was propped up on two co-dependent industries. You had planting and manufacturing cotton and mills in the north. Industrial capitalists exploited their workforce and in the South plantation owners exploited theirs. And while having a common enemy does not mean that white Americans saw enslaved or free people of color as being equal to them. Same goes with men and women across these groups. It was at least agreed that the expansion of slavery needed to be curbed so there were protests and strikes against the industry.

Nick Capodice [00:17:33] But after slavery is finally struck down you've got this massive population of freed people who need to work and they live in a part of the country that has been hostile to the very idea that they should be anything other than property. Does the sentiment of fair wages and better working conditions suddenly extend to these newly free people.

Priscilla Murolo [00:17:51] Certainly workers hope there would be prayed there would be demanded changes. Organized workers right after the Civil War are said. Now we have defeated slavery. Now we have defeated the most anti labor reactionary system we could imagine and we now hope to use this as a basis for remaking the whole society. Extend freedom to everyone and maximize everyone's freedom. But that is not what came to pass as we know.

Hannah McCarthy [00:18:26] What did come to pass is that Southern legislators severely limited all kinds of freedom for freed people including freedoms having to do with Labor after Reconstruction in the state of Mississippi.

Priscilla Murolo [00:18:38] It was a criminal offense. It could go to prison for breaking a labor contract and you were expected to sign up for a labor contract for should run for an entire year. So you would wind up a sharecropper working for the same. Family that hed own to you when you were enslaved and you under the state law you had to sign up to work for a year and if you left if you thought well I could do better by you I'm going to move from Mississippi to Chicago. That was illegal.

Hannah McCarthy [00:19:16] It was also a crime to not have a job. Many freed people ended up as tenant farmers or sharecroppers and accrued debt that lasted through generations.

[00:19:27] Which meant they were something akin to indentured servants to the families that had once owned them.

Nick Capodice [00:19:33] So this is a real catch 22 right. You're not allowed to quit your job to go look for another job. But you can't also not have a job right.

[00:19:45] Did those farmers ever attempt to unionize.

Hannah McCarthy [00:19:48] Yes the Alabama sharecroppers union came around in 1931. It was open to all races but membership was solely African-American. They staged huge strikes against landowners for fair wages and more rights. And they succeeded sometimes. But there were also violent clashes and more failures than successes.

Nick Capodice [00:20:08] So what I'm hearing is that more failures than successes is kind of the theme of the labor movement so far. But I look at my job today and I know over time things improve because of that movement. How do we get to this point.

Phillip Nicholson [00:20:21] The biggest strikes the biggest struggles in what is called after the Civil War a kind of heroic age of labor as one of their heroes a woman who I came to admire Mary Harris Mother Jones once said Those were the years of the martyrs and the saints the decades after the Civil War when the biggest battles and there were national strikes and walkouts and even almost a national general strike and the upheavals of 1877 when workers in huge very impersonal very dangerous industries mining coal minerals hard rock mining out west and the Rocky Mountains and of course in steel in various ways engaged in some of the biggest labor battles in all of American history.

Nick Capodice [00:21:14] So the labor unions kicking but all across the USA.

Hannah McCarthy [00:21:18] Well they never quite kick butt or if they do it's through a thousand tiny largely ineffectual kick's because they often do not get what they want but the noise that unions make that does make a difference. As the decades wear on meetings and protests turned violent people are killed in the name of better conditions. Buildings are burned. Machinery is destroyed and strikes were massively disruptive to industry. So legislators start to listen. Yeah we're actually going to speed ahead in time now because this is when things really start to pick up. Working conditions spark social movements like the child labor movement and the black freedom movement after the Great Depression under President Roosevelt's New Deal America. The Fair Labor Standards Act was signed in 1938. This puts an end to oppressive child labor standards. It brings us the minimum wage and overtime pay and the 40 hour work week.

Nick Capodice [00:22:18] And the weekend.

Hannah McCarthy [00:22:19] The hallowed weekend. In 1964 we get antidiscrimination laws and a right to equal pay.

[00:22:26] In 1970 we get a right to health and safety in the workplace. And it's a constant battle of worker versus industry with social and labor movements working in tandem to have their needs and wants met workers just don't shut up and it makes a difference. But what exactly did we get out of all of those decades of strife. What did all of the changes in the American workplace actually provide to the American worker. That's coming up after the break.

[00:23:00] "Which Side Are You On?"

Hannah McCarthy [00:23:39] Welcome back to Civics 101.

[00:23:41] Let's get to work.

[00:23:46] Work in the U.S. has come to be defined by the victories of the labor movement and for the record that history is rich and varied and complicated. And we have had to skip over most of it to get to today. But you should know that most unions in the country today are under either the AFL CIO that's the American Federation of Labor and Congress of Industrial Organizations or the change to win federation. Now what does work in America look like today.

Camille Hebert [00:24:15] Yeah sure. So my name is Camille Hebert. I'm a professor of law at the Ohio State University Moritz College of Law.

Hannah McCarthy [00:24:22] Camille teaches labor employment discrimination and employee benefits law. I asked her to run me through the ins and outs of protections rights and limits in the world of employment. And it turns out that the federal government has established a lot of rules and regulations for the workforce.

Nick Capodice [00:24:40] So let's say I don't even have a job yet.

[00:24:42] Am I protected even during the interview process for a job?

Camille Hebert [00:24:45] So yes the federal prohibition against discrimination which is generally race sex religion national origin age disability apply both of being employed stage and applying antidiscrimination is in a lot of state laws as well but it was the Civil Rights Act of 1964 that served as the hallmark. It's unlawful to refuse to hire someone because of a particularly protected category. It would also be unlawful to engage in sexual harassment at a job interview and I kind of laugh thinking Well that wouldn't happen but I've actually read cases where it did where there was actually harassment.

Hannah McCarthy [00:25:24] Yeah. A major theme of my conversation with Camille was my being disappointed that this stuff still happens in the workplace or anywhere for that matter. That's why we have these laws. That's why I'm telling you about them. So let's say you have a disability. What does that mean for you in the job interview process?

Camille Hebert [00:25:44] Particularly for disability.

[00:25:46] You have to show that you are a qualified individual a disability which essentially means you can perform the job the essential functions of the job either without any help or with accommodation with reasonable accommodation.

Nick Capodice [00:26:02] All right. So what happens if I suspect that I wasn't hired because of discrimination of the employer do I sue.

Hannah McCarthy [00:26:08] You can try and if you do prove it. If you're right if you win.

Camille Hebert [00:26:12] Courts will often order employers to hire. So you have to prove generally intent to discriminate on the part of the employer. Sometimes with a disability law it's a little easier sometimes to prove that because employers generally can't ask about disability at least nonobvious disability until after they've made an offer.

Hannah McCarthy [00:26:41] Now let's say you got the job. It's an office gig you're going to be in charge of answering the phone and you're talking wages with your new boss and your boss says look I'm going to pay you four dollars 50 cents an hour, capisce?

Camille Hebert [00:26:55] I mean you you have to be paid at least the minimum wage. And so if an employer says no or only hire you if you work below the minimum wage and you say no I won't do it then you can sue. You can sue for a violation that's the fair labor standards act is what does the minimum wage.

Nick Capodice [00:27:13] So the minimum wage in America is 725 right now right.

Hannah McCarthy [00:27:16] Yes.

Nick Capodice [00:27:16] And some of these can go higher. But no states can go lower than that.

Hannah McCarthy [00:27:19] Exactly. I also know that even though we have that law. If I'm a waiter or a bartender I will not get that minimum.

Camille Hebert [00:27:26] So there's a couple of exceptions for tipped employees can get a smaller minimum wage it's like two dollars and 14 cents. Really low as long as the tips make up the difference between that and the minimum wage.

Nick Capodice [00:27:42] So someone gets hired in this cushy phone answering job. What happens if you start the job and then they hire this guy Bob to answer phones with you. Bob is getting paid more than you. Is that somehow all right.

Camille Hebert [00:27:55] So there is a federal statute that prohibits men and went pay in men and women different wages for the same job it's called the Equal Pay Act. 1963 it was enacted but it requires you literally to show that it is the same job not worth the same but the same job.

Hannah McCarthy [00:28:17] Let's say that it's a woman who is hired for this phone answering job. And Bob gets hired and FAAB happens to be a man. If Bob is getting paid more than me and we're working the exact same job like same hours same amount of responsibility same effort same output then that woman might have a case she would have that case under the Equal Pay Act.

Camille Hebert [00:28:42] Right.

[00:28:43] Equal pay act only applies to sex. So if you're going to sue for race or any other category you have to do it under Title 7 or the age act.

Nick Capodice [00:28:53] Title 7 of what?

Hannah McCarthy [00:28:54] That'd be Title 7 of the Civil Rights Act. So if you're a person of color being paid less for the same job as a white co-worker you can sue according to discrimination on the basis of race. The Age Act of 1975 works in a similar way.

Nick Capodice [00:29:09] What about other workplace protections. I'm thinking about these places that have terrible conditions terrible bosses throughout history. No no wages were behind a lot of strikes and a lot of organizing. But the workplace was too right.

Hannah McCarthy [00:29:24] Oh yeah big time.

Camille Hebert [00:29:25] So harassment is covered on the same grounds as any other discrimination. So sex religion race national origin disability age.

[00:29:37] Most people hear about sexual harassment and that's what they think of and they think of it as something sexual which of course sexual harassment does generally require sexual conduct but harassment can also just be creating a hostile environment.

Hannah McCarthy [00:29:52] Things like yelling at your employees denigrating someone in the workplace making fun of someone for their religious beliefs. Harassment violates a lot of laws. It's covered in the Civil Rights Act the Age Discrimination in Employment Act and the Americans With Disabilities Act. There is a catch though harassment has to be either severe or pervasive or both.

Nick Capodice [00:30:17] So I have to be like either superduper harassed or harassed for months or years. What if someone's just making me feel bad.

Hannah McCarthy [00:30:25] Well that's unlikely to be enough for a case. Also harassment doesn't often have an audience right. So how do you prove that you're being harassed. E-mails are good but what if you don't have them.

Camille Hebert [00:30:37] Yeah if you don't have proof it's no one person's word against the other. I actually really hate when I hear you know he said she said because it just really bothers me sort of that notion you know that if you don't have outside proof somehow your own word that it happened isn't sufficient. Right. I mean it can be. It's just really hard courts are reluctant to find employers liable if it's only the woman's word about what happened thought always a woman can be a man also.

Nick Capodice [00:31:17] I know that's the way law goes.

[00:31:19] In America you're innocent until proven guilty and the burden of proof is on the victim. But it seems almost impossible to prove you've been discriminated against or harassed.

Hannah McCarthy [00:31:28] Yeah I hear you. And sometimes these cases involve that power imbalance or fear of losing your means of income fear of being fired in retaliation for speaking up. And speaking of being fired you know many employees are considered something called at will. And that means that they can quit for any reason. But it also means that their employer can pretty much fire them for any reason or no reason. Employers can read anything you wrote on a work computer. They can monitor what websites they're accessing on your phone if you're using workplace Wi-Fi. They can listen in to any call in a work phone until it's obviously personal. They can't even ask you about that sick day you took last Friday.

Nick Capodice [00:32:09] All right so labor unions and social movements pushed and they pushed and they push for rights and protections. But it's not like they stripped employers of total control.

Hannah McCarthy [00:32:17] Right. Employers still have plenty of power and protection but I think the important thing is that these laws do deter employers from discriminating against or harassing employees and they give us stuff health insurance.

Camille Hebert [00:32:34] What I'm thinking of is the Affordable Care Act. You have to be certain employers have to provide health insurance to full time employees and those are employees who are more than 30 hours a week overtime. I think the biggest misconception is that salaried employees are not eligible for overtime. It's actually the opposite to be exempt from overtime. You have to be salaried for the most part. Child labor laws. So the Fair Labor Standards Act has minimum wage overtime and child labor provisions. So they're for children under the age of 18 or 16 depending on the occupation. There are limits on how many hours you can work. Usually it's you know outside of school and you know certain only a certain number of hours during the school year.

Hannah McCarthy [00:33:19] We also have to have our disability reasonably accommodated and our employers have to protect our health safety and welfare when we're at work. If we're fired and it wasn't our fault we get unemployment pay.

Nick Capodice [00:33:32] When you look at the whole trajectory of work it's kind of remarkable that we got here and it looks this way at all right in large part because workers fought for the right to even just come together. They demanded it and then they kept pushing.

Hannah McCarthy [00:33:47] And things are still changing. There are state laws that take a lot of these federal laws and run with them. Some states mandate paid family and paid sick leave and some raise their minimum wage and some ban employers from asking you what your former wage was in order to break a cycle of unfairly low salaries especially for women and people of color. My favorite part of the story of work in America is that workers found a way to improve the system that they found themselves in and make it work for them. We do have a right to try and make things better.

Nick Capodice [00:34:36] One thing about workers rights you didn't mention.

Hannah McCarthy [00:34:38] Oh what.

Nick Capodice [00:34:38] It is illegal for an employer to ask an employee about their marital status. Same goes for you have kids are you planning to have kids.

Hannah McCarthy [00:34:45] That's actually a good rule. Where'd you hear it.

Nick Capodice [00:34:48] I've been doing a lot of reading on marriage divorce relationships in general and there's a lot more there like a whole episode a lot. That's next time I'm Civics 101.

Hannah McCarthy [00:35:07] Civics 101 is produced by me. Hannah McCarthy with Nick Capodice. Our staff includes Jackie Helbert Ben Henry Daniela Vidal Allee and Erica Janikis our executive producer.

Nick Capodice [00:35:17] Maureen McMurry pours herself a cup of ambition each and every morning.

Hannah McCarthy [00:35:21] Music in this episode a Blue Dot Sessions, the International Ladies Garment Workers Union, Lobo Loco the Almanac Singers, South London Hi-Fi. Daniel Birch and Geographer.

Nick Capodice [00:35:31] There is lots more to see and learn on our website civics 101 podcast dot org. And while you're at it subscribe to our newsletter. That's where we put all the tangents and fascinating tidbits that can make in our episodes and it's awesome.

[00:35:43] If I do say so myself.

Hannah McCarthy [00:35:46] Civics 101 is a production of NHPR -- New Hampshire Public Radio.

[00:36:08] Civics 101 is supported in part by the Corporation for Public Broadcasting.

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Made possible in part by the Corporation for Public Broadcasting.

Life Stages: School

As Adam Laats said, "when it comes to schools, the most important thing is who you are, and where you live."

In today's episode, we explore how K-12 education has developed in the US since the 1600s, what teachers can and can't teach, what rights students have in public school, and how the federal government gets involved.

Today's episode features Mary Beth Tinker, Dan Cassino, Kara Lamontagne, Adam Laats and Campbell Scribner.

Subscribe to Civics 101 here!

Click here to get a Graphic Organizer for notetaking while listening to the episode.

Episode Segments

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TRANSCRIPT

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

Civics 101

Life Stages: School

Civics 101 is supported in part by the Corporation for Public Broadcasting.

Nick Capodice [00:00:07] Do you like middle school?

Hannah McCarthy [00:00:10] I loved middle school. That's why I really came into my own in theater. I did great in middle school. How about you, Nick?

Nick Capodice [00:00:18] This was so...this was like the apex of my mediocrity as a human. Like I had a tough time in middle school.

Hannah McCarthy [00:00:27] Mediocrity, what does that even mean.

Nick Capodice [00:00:30] I was just like this was like when I was the most awkward. Had no idea who I was or what I was doing.

Hannah McCarthy [00:00:37] But that's every human being on the face of the planet!

Nick Capodice [00:01:16] I'm Nick Capodice

Hannah McCarthy [00:01:17] And I'm Hannah McCarthy.

Nick Capodice [00:01:19] This is Civics 101, our Life Stages series. And today we're going to school. If I sounded a little pathetic there it's because Hannah and I weren't just visiting a random middle school, we were visiting my old school. Merrimack Valley Middle School. Which was a great school! I played logo. I watched all the president's men. But it had been 25 years and it smelled exactly the same and all that stuff just came flooding back.

Hannah McCarthy [00:01:43] I wonder can you just opt out. Do you even have to go to school.

Dan Cassino [00:01:49] No.

Hannah McCarthy [00:01:51] I know that no.

Nick Capodice [00:01:52] Yeah. That's Dan Cassino political science professor at Fairleigh Dickinson University.

Dan Cassino [00:01:56] And this actually kind of weird. This is one of those ways in which America is exceptional, that we're different than other parts of the world. So if you were in France you wouldn't have a choice about whether or not your kid was going to public school. Everyone goes to school. You don't have a choice. If you want send your kid to church afterwards, great. Have a blast. But you have to send your kid to public school. Everyone has to get an education. In the United States, we've actually relaxed that. That was the law in most states up until the 1960s. What happened was the Amish.

SCOTUS archival [00:02:26] The Amish are in a fortunate position respecting the schooling which they conduct for children beyond the 8th grade. It is learning by doing. An ideal system.

Dan Cassino [00:02:36] The Amish do send their kids to school but they typically take their kids out of school around eighth grade. The state of Wisconsin started going to Amish families in fining them for truancy saying your kid is not showing up to school you're going to get a fine for truancy and your kid has to go to school whether you like it or not because everyone has to go to school. The Amish then sued, saying this was an infringement on their religious rights. Saying look we don't want our kids to learn about all the sinful stuff you learn in 10th grade I don't know. It's not really in the curriculum but there were, they didn't want the kids exposed to what was going on in high school.

SCOTUS archival [00:03:08] The lack in modern education of a clear connection between learning and doing is responsible for much of the student actions we have today.

Nick Capodice [00:03:17] This is from the argument in the Supreme Court case Wisconsin v. Yoder, the 1972 decision of which set the precedent that as long as you're receiving a "adequate education" you do not have to go to public school. This is what allows for private schools and home schooling in every state.

Hannah McCarthy [00:03:35] What is an adequate education?

Nick Capodice [00:03:38] Well each state decides what that word adequate means. Because when it comes to federal laws about schools it is slim pickings.

Campbell Scribner [00:03:47] So constitutionally of course the American Constitution does not mention education at all. There's no mention of schools in it.

Nick Capodice [00:03:54] This is Campbell Scribner. He's a professor at the College of Education at the University of Maryland.

Campbell Scribner [00:03:58] And therefore traditionally the sort of governing principle has been the 10th Amendment which is the amendment that basically says any rights or responsibilities not specifically mentioned in the Constitution revert to the states. And so education usually is conceived as a state responsibility.

Nick Capodice [00:04:16] Quick historical diversion here Hannah

Hannah McCarthy [00:04:18] Are you going to use the horse and carriage sound effect again.

Nick Capodice [00:04:22] I'm just one man Hannah.

Nick Capodice [00:04:27] Cast your mind back to the 20s. Andrew Jackson is elected president in 1829. And at that time in most states you didn't just have to be a white man to vote you had to be a white man who owned property. But the Jacksonians push for the "common man" to be part of our democracy. And by 1850 the landowning requirement is dropped nationally. So now there's this grave concern. Can we trust the common man to vote well if he isn't educated? And we have education advocates like Horace Mann who created the first public school system in Massachusetts that is a model for other New England states to copy. But it is radically different in different parts of the country.

Hannah McCarthy [00:05:06] So it sounds like the federal government had very little influence when it came to schools.

Nick Capodice [00:05:13] And it does today as well. Most of the decisions about what's taught and funding for schools all happens on a state and local level. Most funding for schools comes from property taxes. But there are a few ways the federal government gets involved.

Dan Cassino [00:05:26] It's like road laws. Every state can do whatever it wants with those roads and the federal government has nothing to do with that. But wait, you're saying. The federal government has lots to do with roads. They set the speed limit. They're doing all sorts of stuff with the roads. And the answer is yes. But they're not allowed to do it, they have to get the states to voluntarily agree to let the federal government come in and do that, and they do that by withholding funding. So in the 1980s if you wanted funding for your highways you had to reduce your speed limit and you had to increase your drinking age to 21. There are a couple of states that held out; do Arizona didn't increase the drinking age of 21 till later than everyone else. New Hampshire didn't either. But guess what, eventually they folded because they wanted that sweet sweet federal money. The same holds true for schools. The federal government can't actually tell the schools what to do. What it can do is tie school funding to certain programs and tell the states if you want this money you have to do X Y and Z.

Hannah McCarthy [00:06:19] What kind of programs is he talking about.

Nick Capodice [00:06:22] This is stuff like sex education and the federal government defines rules about what gets taught. And it changes under different administrations. So for example, programs that promoted abstinence only sex education got billions of dollars over the last 20 years and then starting in 08 that shifted to programs about preventing pregnancy and STIs.And this is how it works for things like federal funding for afterschool programs or even school lunch.

Dan Cassino [00:06:48] So the government says we're going to give you this money for school lunch, with the proviso that when you get this money you have to turn around and give free or reduced cost lunch to a lot of kids. Now how do we pass that through Congress? It turns out that the school lunch program is mostly a subsidy for American farmers. So when the price of crops gets too low farmers go out of business. So the Federal Government has price guarantees; the price gets too low, the federal government comes in and buys a bunch that crop. So what do they do with that crop? Well part of it gets shipped overseas. That's where food aid comes from. And the school lunch program we buy up all this extra corn and soybeans all these extra food products and we ship them off to schools so schools get all of that food for free as long as they agree to go ahead and give some of this food to kids for nothing.

Nick Capodice [00:07:33] All that said the federal government accounts for under 10 percent of funding for schools.

Hannah McCarthy [00:07:37] What about things like when kids have to go to school? You know like the start time, how many days a year,  vacation all that stuff.

Nick Capodice [00:07:45] All right so school start time is chosen by your local school board and over the last 20 years there has been a concerted movement to get schools to start later in the day since young minds need sleep. But do you know why we have summer vacatio, Hannah?

Hannah McCarthy [00:07:57] I have always been told that it's because families needed help farming in the summer.

Nick Capodice [00:08:02] I was taught the same thing. But it turns out that is one of the Great Education Myths. Spring and fall are planting and harvest time respectively and the summer vacation starts due to wealthy families and cities in the late 1800's. Schools in the city were ruthlessly hot in these days before air conditioning, and well heeled families would book it to the country for a few months, leaving the poorest students to swelter in July and August. The summer vacation was created so everyone goes to school the same amount of time. Today in the U.S. there are about 4 percent of schools that do year-round schooling.

Hannah McCarthy [00:08:40] But speaking of kids helping out with the family farm. When did we start making kids go to school?

Adam Laats [00:08:48] Well say it once and then I'll try not to keep repeating it but for school stuff, the main question is who you are and where you lived.

Nick Capodice [00:08:57] This is Adam Laats. He is professor of education at SUNY Binghamton.

Adam Laats [00:09:01] You know so if you were a sort of affluent kid in the Northeast you went to school. And from fairly early on you know and in places like Massachusetts and Connecticut it's as soon as the English people land they establish pretty formal schools like Harvard for example, and then village schools where you know literacy was pretty common in terms of you know teaching kids formally to read, and then sending a few kids on to college although the college would be very different from what we would expect.

Hannah McCarthy [00:09:39] Is this exclusively men that Adam is referencing here?

Nick Capodice [00:09:44] I incorrectly assumed it was. I thought way more men went to school than women in early America.

Adam Laats [00:09:49] By and large girls in America have always gone to more school than boys. You'd think that because of the you know the unfair treatment of girls and women that they would be also deprived of school as they've been deprived of the vote you know in other other basic rights. But with school that's never been the case. Again I'm speaking population-wise, not specifics. And they've always done way better at school by every measure. Girls have always been measured better at school than boys. And that's true across ethnic groups so Latin-x African-American White Asian and every group girls have always done better and done more formal school than boys.

Campbell Scribner [00:10:34] But for the most part education was sort of dropped in and you dropped out.

Nick Capodice [00:10:37] This is Campbell Scribner again.

Campbell Scribner [00:10:39] You know there was not a K-12 system at all. There was no public funding. There was basically no oversight. And it was sort of that people would attend as long as they wanted and they would get the skills that they wanted. And then they would go off and work. And the virtue of that I guess was that people weren't compelled to do things that they didn't want to do, right? And so the students perhaps were a little bit more motivated in that sense. And for those of us who sort of felt like high school was a huge waste of four years of our lives, kids could actually get right into the workforce, right. There was no there was no compulsory attendance.

Nick Capodice [00:11:14] Massachusetts had mandatory attendance laws in 1850. But Campbell told me that nobody enforced those until the turn of the 20th century.

Campbell Scribner [00:11:21] Child labor of course became unpopular at the end of the 19th century and people wanted to get kids out of coal mines and out of factories because they were getting maimed. But really they lacked the ability to really enforce those laws until the first decades of the 20th century.

Nick Capodice [00:11:36] But during the Great Depression kids aren't working because there are so few jobs to go around. And that is when things start to shift.

Campbell Scribner [00:11:42] It's only by the 1930s that high school attendance becomes more or less universal. Until then you know up through the 19-teens only 10 percent of kids were even in high school and only 4 percent graduated. So for most of us we don't have to go back too far in our family history to find the first high school graduate.

Adam Laats [00:12:02] But when it comes to say everybody the other huge dividing line is your race and ethnicity. For African-Americans. Not only were they, if they were enslaved, not only were they not schooled before the Civil War and Emancipation but as you're probably aware starting in the 1740s there were more and more laws banning, forbidding by threat of legal punishment formal schooling for for African-Americans, for enslaved people.

Campbell Scribner [00:12:32] It's always been fraught frankly. And I'll include Native Americans in that in that same category although there are some differences. Basically since the beginning you've had racial progressives of various stripes, originally people who would want to sort of abolish slavery and then re colonize former slaves back to Africa that was seen as the progressive position up through the 1830s and eventually just straight up abolitionists who want to end slavery and have a multiracial society. But both of these groups do see education as sort of uplifting what they see as a benighted race in African-Americans and slaves. And the hope is that you could eventually again sort of make citizens. The problem is that even the best of these reformers were awfully, I mean in my language you can hear it, they were awfully paternalistic in how they approached it right. They did assume that there was sort of racial differences, most of them. And that African-Americans were either incapable of learning or at least delayed.

Nick Capodice [00:13:36] Which Campbell pointed out, we shouldn't even have to say it, is complete nonsense. But when African-Americans are finally given access to education it doesn't grant them the same benefits as it does to whites.

Campbell Scribner [00:13:50] You find all of these testimonies where they basically write into newspapers they speak it at meetings and they say it's a sham. I've done everything I'm supposed to do and white owners still won't hire me for a job. I still get disrespected. I still get disenfranchised. And so that sort of complaint which we hear echoes of it today. Of course it was there from the very beginning. And while schools have always sort of wrestled with inclusion or exclusion even in places where African-American kids were included and the possibility of schooling, a lot of times they didn't reap the results.

Nick Capodice [00:14:28] Coming up how students and teachers constitutional rights change when they cross the schoolhouse gate.

Hannah McCarthy [00:14:35] Nick you've been saying that federal laws are few and far between when it comes to school. But aren't there some things that public school teachers cannot teach.

Nick Capodice [00:14:45] What are you talking about exactly.

Hannah McCarthy [00:14:46] I'm talking about you know like teaching religion and teaching like passages from the Bible you know because of the whole separation of church and state thing. Right?

Nick Capodice [00:14:55] Right there is lots of Supreme Court precedent about that separation in public schools. But what happens in the classrooms themselves is an entirely different matter. For example I asked Adam what are the rules when it comes to teaching creationism and evolution in American schools.

Adam Laats [00:15:09] Yeah I can do it in three words. No one knows. The Supreme Court doesn't know, your local principal doesn't know, the kids in school have no idea. My, when my daughter was in fourth grade her new best friend just transferred from Catholic school into her public school and were walking home and I was like how is school, you know how is your new school. She was like, it was OK. But at one point someone sneezed? And I said bless you? And then I was like sorry. I don't know if you can say bless you in a public school.

Adam Laats [00:15:43] So I think when it comes to what the law is ever since the Scopes Trial of 1925 and before no one knows what you can do with religion in schools.

Spencer Tracy [00:15:54] In a child's power to master the multiplication table there is more sanctity than your shouted amens and holy holies and hosannahs.

Nick Capodice [00:16:05] State of Tennessee v. John Thomas Scopes often referred to as the Scopes Monkey Trial, wonderfully depicted in the 1960 classic Inherit the Wind. It was a case about whether a Tennessee Act that forbade teaching evolution was unconstitutional. And it started this conversation nationally but precedent wasn't set until the 1960s.

Adam Laats [00:16:25] So for example, can a science teacher teach creationism? Well we know that by by Supreme Court precedent and other court precedents there's a really clear answer and that answer is a resounding no. But we also know they surveyed a ton of high school biology teachers and very few of them teach only evolution. Sixty percent of them say they sort of mix it up, 13 or 14 percent teach only creationism. So the Supreme Court is clear. But what goes on in classrooms is anything but clear when it comes to creationism.

Hannah McCarthy [00:16:59] What about students, their rights? Is it any clearer when it comes to them?

Nick Capodice [00:17:04] You and I have done several shows about First Amendment rights in schools. But we should do in the future about Fourth Amendment rights in schools, like can a teacher look in your locker or tell you to unlock your phone. The quickest summary of that is I can't go to your house Hannah and look in your closet. But a teacher can ask you to open your locker. The Supreme Court has ruled that teachers maintaining order outweighs a student's right to privacy at school if they have reasonable grounds.

Mary Beth Tinker [00:17:30] As I like to explain to students all of the rights of the Bill of Rights and in our constitution have limitations.

Hannah McCarthy [00:17:38] Who is that.

Nick Capodice [00:17:39] That is a personal hero is who that is.

Mary Beth Tinker [00:17:41] My name is Mary Beth Tinker. And when I was 13 years old I became a plaintiff in what became aU.S. Supreme Court ruling for students rights called Tinker vs. Des Moines.

Hannah McCarthy [00:17:54] The Mary Beth Tinker?

SCOTUS archival [00:17:55] Number 21, John Tinker and Mary Beth Tinker, minors, et cetera et al, petitioners vs Des Moines community School District et al.

Nick Capodice [00:18:08] If any of you were unfamiliar with the Supreme Court case Tinker v. Des Moines from 1969. It was the topic of Hannah and my first episode together, which we called IRL1. Mary Beth Tinker and her brother John and others were suspended for wearing black armbands to mourn the dead on both sides of the Vietnam War and their case went to the Supreme Court. The Tinkers won. And in the opinion of Justice Abe Fortas he wrote "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." And today Mary Beth travels the country advocating for students rights.

Mary Beth Tinker [00:18:45] Young people have unique qualities. They have incredible creativity. They have energy. They're willing to take risk. And it's no wonder that they've been in the lead of movements through history to stand up for justice and for equality and all of our democratic values. Because another great quality of young people is that they have a sense of fairness. And adults are too quick to tell kids you know that life's not fair and get used to it. But I always tell kids, don't get used to it. Life should be fair. And when you see something that's not fair you can use your first amendment rights; the right to free speech free press to assemble the right to petition the right to have your own beliefs your own religion to do something about things that you see are not fair and to take action.

Nick Capodice [00:19:37] Even a class action, right now students in Rhode Island are suing their state for not providing them an adequate civics education. Their argument is they are not being provided the opportunity to be prepared voters, jurors, participants in the political system. Hannah in your birth episode you talked about how children and students aren't recognized constitutionally. But the Tinker ruling changes that.

Mary Beth Tinker [00:19:59] One of my favorite parts of the ruling is that students are persons under our Constitution with the rights and responsibilities of persons. Abe Fortas writing for the majority also said that schools should not be enclaves of totalitarianism, and that there might be some discomfort at times when people express their First Amendment rights or use their rights. But that's a discomfort that we are willing to pay in our democracy.

Nick Capodice [00:20:25] There are some exceptions though under the First Amendment.

Mary Beth Tinker [00:20:28] Number one, substantial disruption of school. You could have your first amendment rights and free speech but you could not substantially disrupt school in the process of using those rights. And number two impinging on the rights of others would not be covered by the First Amendment rights of students. Now whatever that means and that's been debated ever since.

Nick Capodice [00:20:55] When we were walking through Merrimack Valley Middle School I talked to principal Kara Lamontagne about speech restrictions. And it started with the dress code.

Kara Lamontagne [00:21:04] Morning Jake. Don't forget to take that hood off when you're ready...

Nick Capodice [00:21:04] Are you not allowed to wear hoods? Why not?

Kara Lamontagne [00:21:19] Just to be able to see faces, to be able to make eye contact with students. Kind of help us read their body language little better. When they cover up and cover their face. You know it's hard to have any of that.

Nick Capodice [00:21:29]  And their code is pretty consistent with schools that I asked across the country. No hoods or hats, no clothing with profanity, no clothing that advocates drug or alcohol use.

Kara Lamontagne [00:21:41] And then there are some limitations around. I guess skin visibility. Just to help students be respectful of their bodies as they're trying to figure things out as middle schoolers. You know so we do have like some limitations around how shorts have to be a certain lengh, your skirts have to be a certain length,   we don't want to see undergarments and that's just not the place for that. But every place I've worked the dress code for middle school is very similar. And you know it's really just about having an appropriate non-disruptive environment. Sometimes the students don't understand that, you know, how come my skirt being too short is disruptive to the learning environment. But it can be and it's hard to explain that to them. The students do talk about, you're sexualizing us. That's the word that I hear often from from the girls.

Hannah McCarthy [00:22:32] It's interesting that these young women use the words you know you're sexualizing me I would never have thought to do that. It just speaks to how much the culture has shifted and I guess kind of empowered young women to use these terms.

Kara Lamontagne [00:22:46] And I would agree cause this is my 20th year as an administrator I was an assistant principal for a long time and did the discipline. Ninety five percent of it. And I didn't used to hear that language. It's hard. I mean because I understand that perspective and I I really respect the students that I work with. But we have we have this rule for a reason it's just a hard one for them to grasp.

Nick Capodice [00:23:08] And if you note, Kara used the word disruptive which is the exact word used in that tinker ruling.

Hannah McCarthy [00:23:14] What about other kinds of disruption. I can think of some politically charged statements on a shirt or a hat that could get students pretty riled up.

Nick Capodice [00:23:23] You said it.

News Report [00:23:23] High school student in Oregon who was suspended for wearing a pro Trump T-shirt is getting the last laugh and a lot of money.

Nick Capodice [00:23:29] In 2018 a student was suspended for refusing to remove a pro border wall T-shirt. And the courts ruled it unconstitutional and the school had to pay him twenty five thousand dollars and write him a letter of apology. This is a juggling act creating a respectful environment, without disruption, that enforces student protection, and their rights. And if there's a takeaway from all of this it's that this juggling act is very difficult.

Campbell Scribner [00:23:59] One of the classic problems with American schools is that because we live in a liberal democracy, a free society, it puts a lot of weight on education. We say that we have a free market right and people will rise or fall based on their effort and their talents. And you know we don't have strong social programs because we basically imply that if you're poor you just didn't work hard enough or you aren't smart enough or whatever for that system to hold. We have to, we have to assume that kids do have a fair shot at the beginning, right. That we have a strong educational system that that's allowing meritocracy to thrive and allowing people to rise and fall. We obviously don't have that. I mean clearly we can see that schools pass on opportunities to rich kids, to white kids, to suburban kids, whatever, that they deny to immigrants and students of color. I think we need be more realistic with the way we expect them to do.

Hannah McCarthy [00:24:50] So not only are schools juggling rights but they're also bearing the weight of expectations and the flaws in our system.

Campbell Scribner [00:24:59] If we could all agree that schools were supposed to do one thing they could do it. If we all merely wanted the kids or students to know, you know, the three branches of government and basic civics, I'm sure that schools could teach all children that. But as it is we expect them to do that and all the other subjects. And to have a winning football team and provide health care to students and hot lunch and to you know do job training and a million other things. It's not a surprise that they're not doing them all well. And even when they do start to do one of them well it's not hard to pick another one out and sort of cherry pick where they're failing. So I think before we even propose how to improve schools as a nation we need to be much more serious with how we deliberate about their purpose and what we actually think are supposed to be doing to begin with.

Nick Capodice [00:25:47] Adam Laats told me that his family and friends have banned him from talking about education at the dinner table. And I said you're unbanned here, what is the thing you want America to know about our school system.

Adam Laats [00:25:59] Oh I got it. I got it. Sorry I'm shouting. All right. So here's a question I want everyone to ask themselves and that is do you think. And say you're walking down the street you're minding your own business. A guy jumps out of an alley and says this. Do you think American public education is in a crisis right now. What would you say. So what would you say. Do you feel like American public education writ large is in a crisis?

Nick Capodice [00:26:25] Do you?

Hannah McCarthy [00:26:26] No.

Nick Capodice [00:26:26] why not?

Hannah McCarthy [00:26:29] There are more kids entering into higher education. There are more kids being educated now than have ever been educated. I think there are difficulties but there are always difficulties, there are always controversies, but more people having access to education I say that's always a good thing. Do you think that public schools are in crisis?

Nick Capodice [00:26:51] I think I do.

Hannah McCarthy [00:26:53] Why?

Nick Capodice [00:26:53] Well Adam asked me the same thing. There's a school 15 minutes away from my house where they can't play basketball in the gym because it rains asbestos on the kids in the band room below. And I brought up lots of media. I brought up the Wire season four and half Nelson.

Adam Laats [00:27:08] There's this sense that there are these not just problems but really devastating and immediate crises. We might call it a state of emergency. Other countries are doing way better on math tests without spending as much money we're told. Teachers from L.A. to Denver to West Virginia to you name it Oklahoma are on strike. And the pictures of the the resources that they're showing from 2018 and this year are just, this is why they're winning because nobody wants kids to go to schools that are that bad. So other countries seem like they're doing better the teacher pay seems like it is not just pay but the condition of public schools seems like it's in certainly crisis state. And then we have these savage inequalities as Jonathan Kozol called them where some kids go to very high schools and five miles away in any urban district you can go to a school that feels and looks like not just a nice prison but a terrible prison. So on the one hand yes there's no doubt American schools are in a crisis. Yet on the other hand you aren't. I'm not. We are correct on both counts. American schools really are in crisis. And yet American schools, public schools are fantastic. I think the kicker is it depends who you are, where you are and most importantly who your parents are. And that it's a fundamental divide in America that is running right down the middle of our public schools.

Hannah McCarthy [00:28:49] It sounds like he's saying that inequality writ large is the issue in public school. If a parent can afford to live somewhere that has a great school they'll do that. And you know I'll be honest I know that my parents partially selected our hometown because they could and because they researched the school systems and found out that it had decent schools.

Nick Capodice [00:29:11] I did the same exact thing. Our little hypothetical American in the series so far has been born and educated. But what next? When they're gainfully employed? What do they need to know before their soul is fettered to an office stool?

Hannah McCarthy [00:29:28] That's next time on Civics 101.

 Today’s episode was produced by me, Nick Capodice, with you, Hannah McCarthy.

Our staff includes Jacqui Helbert, Ben Henry, and Daniela Vidal-Allee. Erika Janik is our executive producer

Maureen McMurray totally gave a boy her earring in school detention

Music in this episode by Asura, and Asura remixed by Grim God, Blue Dot Sessions, SciFiIndustries, Scott Gratton, Yung Karts, KieloKaz, Daniel Birch, and Chris Zabrizkie

Special thanks to Ms. Dunn and Kara Lamontaigne and MVMS GO PRIDE!

HEY! HEY YOU! Are you part of the 5% who listens to the end of these things? We think you’re just great. Every two weeks we cobble together suppl emental reading and fun stuff we encounter about civics and we type it in our e-newsletter called Extra Credit. Join it! Civics101podcast.org slash extracredit.

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Made possible in part by the Corporation for Public Broadcasting.

Life Stages: Birth

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

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

Click here to get a Graphic Organizer for notetaking while listening to the episode.

Episode Segments

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TRANSCRIPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[00:11:02] Does that happen.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice [00:23:38] Yeah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[00:29:39] Hot dog!

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: The Bill of Rights

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

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

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

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

Episode Segments

More Resources

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

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

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TRANSCRIPT

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

Founding Documents: Bill of Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Blue Dot Sessions

Ikimashoo Oi

Meydn

Scott Gratton

Yeyey

Yung Karts

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

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: The Federalist and Anti-Federalist Papers

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

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

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

Episode Clips

More Resources

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

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

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TRANSCRIPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[00:28:11] Dot org.

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: The Constitution

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

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

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

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

Episode Clips

More Resources

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

Day-By-Day Summary of the Convention

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

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

James Madison’s Notes from the Convention

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

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

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

The Three-Fifths Compromise

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Transcript:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: Articles of Confederation

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

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

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

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

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

Episode Clips

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TRANSCRIPT

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

Civics 101: Articles of Confederation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Founding Documents: Declaration of Independence

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

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

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

Episode Segments

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TRANSCRIPT

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

Civics 101

Founding Documents: Declaration of Independence

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

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

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

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

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

1776: [00:02:41] Vote yes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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