Ask Civics 101: What Is "Court Packing?"

What determines how many justices are on the Supreme Court? What is the process for adding or removing seats on the bench? And what is “constitutional hardball?”

Today we speak with Robinson Woodward-Burns, Assistant Professor of Political Science at Howard University, and author of the forthcoming book, Hidden Laws: How the State Constitutions Stabilize American Politics.

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Transcript

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

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

Trump: [00:00:04] Given power, Biden and his supporters would pack the court, you know they're talking about packing the court.

Biden: [00:00:08] The way that people [00:00:10] have a right to determine who's going to be on the court is how they vote for the senators and their president.

Nick Capodice: [00:00:14] You're listening to Civics 101.

[00:00:16] I'm Nick Capodice.

Hannah McCarthy: [00:00:17] And I'm Hannah McCarthy.

[00:00:18] Today, we answer a question from listener [00:00:20] Felix Owusu. He wrote, We've heard so much about packing the Supreme Court since the passing away of Ruth Bader Ginsburg. How does packing the court work?

Hannah McCarthy: [00:00:29] I love [00:00:30] this question because there are a lot of things that we have to define filibuster the nominating process, how seats are added to the court.

Nick Capodice: [00:00:38] Well, let's start with the nominating process. [00:00:40] Simply the president nominee to justice and the Senate votes to confirm them. But this leads to one more term I learned from talking today's guest, Robinson Woodward [00:00:50] Burns. He teaches political science at Howard University. And that term is constitutional hardball.

Robinson Woodward Burns: [00:00:57] Constitutional hardball is the practice by which [00:01:00] partisan actors and usually members of Congress violate constitutional norms or procedural rules to entrench their party interests [00:01:10] and power, usually in the judiciary or electorate, while operating within the rules of the constitutional text.

Nick Capodice: [00:01:17] A prime recent example of constitutional hardball [00:01:20] was the Democrats in 2013 rewriting the Senate rules to remove the filibuster for judicial nominees in the lower federal courts, and then the GOP retaliating by doing the same thing for Supreme [00:01:30] Court seats in 2017.

Robinson Woodward Burns: [00:01:31] Parties, if they want to get their legislative agenda through, rely on tinkering with the rules, passing, for example, budget legislation or tax legislation. [00:01:40] That act was passed under a procedural sort of tinkering that way. And we also, again, see increasingly a rollback of the filibuster.

Hannah McCarthy: [00:01:48] The filibuster, by the way, is a [00:01:50] procedure in the Senate where bills or appointments can be debated endlessly unless something called cloture is invoked, which requires 60 votes. But [00:02:00] back to Felix's question, how do we decide how many justices are on the Supreme Court?

Robinson Woodward Burns: [00:02:05] The US Constitution allows Congress to set the size [00:02:10] of federal courts, and Congress over time has used that to enlarge or sometimes to subtract [00:02:20] federal court seats. This was largely done not for political reasons, but because Supreme Court judges, justices were expected also to serve as federal [00:02:30] judges in federal circuit courts. This was called riding circuit.

Hannah McCarthy: [00:02:33] Riding circuit?

Nick Capodice: [00:02:34] Yeah, the early Supreme Court justices rode in horse drawn carriages across treacherous terrain [00:02:40] to rule on cases across the country. One almost drowned in a swamp. One was attacked by a former defendant. These guys got sick all the time.

Robinson Woodward Burns: [00:02:49] And so as [00:02:50] the circuits were expanded, as the nation increased in territory, so too were Supreme Court seats.

Hannah McCarthy: [00:02:56] Was this court packing?

Nick Capodice: [00:02:57] Robinson says not really. [00:03:00]

Robinson Woodward Burns: [00:03:00] Court packing is a kind of court enlargement done for political reasons. Parties occasionally in Congress have attempted to entrench [00:03:10] their partisan power on the Supreme Court or on the federal courts by using that constitutional authority to add seats and put in [00:03:20] those seats.

[00:03:21] partisan allies.

Nick Capodice: [00:03:22] Like Robinson said, the Constitution clearly lays out how to add seats to the bench by an act of Congress, but it says very [00:03:30] little on how to remove justices from the court. It's a lifetime appointment until death, resignation or impeachment.

Hannah McCarthy: [00:03:37] So if court packing occurs [00:03:40] only when it is a purely partisan divergence from congressional norms, are there any bipartisan solutions, a way to prevent this game of constitutional [00:03:50] hardball.

Nick Capodice: [00:03:51] There is one proposal that was supported by both Republican Senator Ted Cruz and the late Justice Ruth Bader Ginsburg, and that is to set term limits for Supreme [00:04:00] Court justices. And this can be done through an act of Congress or a constitutional amendment.

[00:04:04] One of the arguments for it is that every other democracy in the world has term limits for [00:04:10] justices, as do forty nine out of the 50 states. The U.S. Supreme Court is quite literally unique in this regard.

[00:04:19] That's court packing, Felix, [00:04:20] I hope we answered your question. And if any of you out there have any questions whatsoever, send them our way. Just go to Civics101podcast.org.

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Ask Civics 101: What Is a "Lame Duck" Session?

So what exactly can the current Congress and President do before the newly elected set is sworn in? Our guest is Dan Cassino, Professor of Political Science at Farleigh Dickinson University and he tells all.

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Transcript

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

Barack Obama: [00:00:04] You, you, you, you, you can tell the. You can tell that I'm a lame duck because nobody's following instructions, everybody out to see.

Hannah McCarthy: [00:00:17] I'm Hannah McCarthy. 

Nick Capodice: [00:00:18] I'm Nick Capodice. 

Hannah McCarthy: [00:00:19] And this is Civics 101. Today's listener question is "tell me about the lame duck period between the election and the inauguration. Is there potential for accelerating abuse of power?" So first off, Nick, what is a lame duck period?

Nick Capodice: [00:00:35] The lame duck period is the time between when the president and members of the Congress are elected and when they're sworn into office. And before we dive into what happens during this time, I got to tell you the origin of the expression. It goes back to the colonial era. And a lame duck was used to refer to failing traders and businessmen who were unable to fund their enterprises. So they were just sort of limping along like a lame duck, like a wounded game bird that might be shot by a hunter.

Hannah McCarthy: [00:01:02] So this period goes from election to January 3rd.

Nick Capodice: [00:01:05] Yeah, but it used to be quite a bit longer. 

Dan Cassino: [00:01:08] Prior to the 20th Amendment, so before basically the mid 20th century, the lame duck period was really long.

Nick Capodice: [00:01:15] This is Dan Cassino, the man, the myth, the legend, professor of political science at Fairleigh Dickinson University. 

Dan Cassino: [00:01:21] They still had elections in November, but the new Congress didn't come into session until March at the earliest and was amended to come into session until November of the following year. So you had a very long lame duck sessions and this was a big problem at the time that you wound up with things like, oh, I don't know, in 1860, the civil war starting during a lame duck period. Right. South Carolina seceded after Lincoln's elected before he takes office in March. And so Lincoln has left there saying, I don't know what to do about this. I'm not president yet. And so problems like that lead Congress to adopt the 20th Amendment and shorten the lame duck period.

Hannah McCarthy: [00:01:54] All right. Now we have a much shorter lame duck session, but I want to know what Congress and the president can do in it.

Nick Capodice: [00:02:01] Well, Dan told me in the modern era, not a whole heck of a lot. Before the 1970s, though, presidents sometimes used their pocket veto. See, if a president doesn't sign a bill into law and Congress is in session, it automatically becomes a law. But if the president doesn't sign it and Congress isn't in session, it does not become a law. Also, when the president makes appointments, when Congress isn't in session, they don't need confirmation. They just go right through.

Dan Cassino: [00:02:27] So since the 1970s, Congress got around this problem by never not being around. That is, they just vote themselves into a pro forma session, which for most of the last 20 years meant that Joe Biden, because he lived in Delaware, would take the Amtrak up to Washington, D.C., gavel, end a session saying, yeah, I'm here senseor any business note. Nobody else here. OK, cool, we're done that. And now the Senate was in session for the day.

Nick Capodice: [00:02:49] One thing I want to add here is that Congress can sometimes pass unpopular legislation in a lame duck session because their actions are no longer electorally accountable. And that is fairly rare on the national level. But lest we forget, Hannah, state and local government, always extremely relevant to your life, also has lame duck sessions. And it is not uncommon for a state legislature to pass a bunch of laws that are not popular with the public, especially if that state's House or Senate is going to flip on January 3rd. We saw this in a big way in 2018 in the Wisconsin election when an outgoing GOP Congress worked overnight to pass laws limiting the incoming Democratic governors power.

Hannah McCarthy: [00:03:29] But what about other presidential powers? Can the outgoing president issue executive orders?

Nick Capodice: [00:03:34] Oh, absolutely.

Dan Cassino: [00:03:35] He can order the executive branch around, have the right to do whatever he wants within the laws as prescribed by Congress. The problem the president runs into during the lame duck session, actually, is that a lot of times the executive branch just isn't around. They're on break. It's the Christmas holiday. They're gone. Nobody's around. And we've actually seen some significant attempts to move policy during December run. The fact that people just are on vacation for a couple of weeks and they don't come back until middle of January when the new president sworn in anyway.

Nick Capodice: [00:04:03] One final presidential power during a lame duck session is the power of pardon. Presidents can pardon whomever they like leading up to the end of the presidency as to whether a president can pardon themselves in this lame duck session. That is an issue that has never been in the courts. So we don't really know the answer.

Nick Capodice: [00:04:20] So that is the lame duck in a nutshell, or rather an eggshell. If you have questions will get answered. Just click the ask a question link at the top of our website, civics101podcast.org.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: How Is My Ballot Counted?

What does an election look like when there are tens of millions of early and mail-in ballots to count? With different election laws in every state, what does the count look like and when will we know the final tally?

Miles Parks, who covers voting for NPR, helps walk us through the drawn out process of counting every vote.

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Transcript

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

Archival: [00:00:00] "I" state your name...

[00:00:03] The absentee deluge is a headache...

[00:00:07] Well, in fact, I recall you telling me some weeks ago [00:00:10] you thought we might not know for some days because one of the things we take into account at every level tonight, of course, is the absentee ballot.

[00:00:16] Absentee or mail-in ballots are the focus, as [00:00:20] you've been hearing, of a lot of attention.

Hannah McCarthy: [00:00:21] When the polls close on election night in the United States.

[00:00:24] That is when election officials really get to work, especially in a year with a lot of mail [00:00:30] in absentee and early vote ballots. So how are these ballots actually being counted? And when will we know the final tally? This is Civics 101. I'm Hannah McCarthy [00:00:40].

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

Hannah McCarthy: [00:00:41] Today, we're going to figure out how and when your vote is counted. There are two basic steps to the vote count procedure. The first is processing. The second is [00:00:50] tabulating.

Nick Capodice: [00:00:51] Now processing.

[00:00:52] I know it's relevant to early vote ballots and mail in absentee ballots because these ballots are inside signed envelopes. Election [00:01:00] workers have to compare the signature on the envelope to a signature they have on file from when you registered. If those signatures match and they usually do. That means the vote is valid [00:01:10] and you can count it.

Hannah McCarthy: [00:01:11] In some states, the ballot is inside a second envelope or a secrecy sleeve. If you sent your ballot in without that secrecy sleeve, it is called a naked [00:01:20] ballot. Certain states, Kentucky and Pennsylvania, for example, reject naked ballots. Others like Florida and Georgia, they count the ballot regardless of [00:01:30] a secrecy sleeve.

Nick Capodice: [00:01:30] Now, this process is time consuming, so some states allow it to begin long before Election Day, but many do not.

Hannah McCarthy: [00:01:37] Some states even allow the tabulating, otherwise [00:01:40] known as the counting of the votes to begin before Election Day. Now, no state is allowed to make the count public until after the polls close, but this is how [00:01:50] we get those instant returns in some states. It also explains how some states are able to tell you on election night who the various winners almost certainly [00:02:00] are.

Nick Capodice: [00:02:01] Why almost certainly? If they've counted the early and absentee votes already, all it takes is counting those in-person votes. Right?

Hannah McCarthy: [00:02:09] It depends, [00:02:10] which I guess is my favorite phrase when it comes to explaining the election process. There's kind of two parts to this. This is Miles Parks covers voting for NPR.

Miles Parks: [00:02:18] The thing that you're watching [00:02:20] on your TV when you're watching network coverage on election night that's showing those totals that says, like, you know, President Trump has won Michigan. That's not all of the votes [00:02:30] in Michigan being counted and President Trump has won, but that is the media organization. They're doing projections.

Nick Capodice: [00:02:37] So in other words, when networks basically award a state [00:02:40] to a candidate, that's just a super, highly educated guess.

Hannah McCarthy: [00:02:44] Yeah, that's part one. The guess. And then there's the actual count.

Miles Parks: [00:02:49] There's the official [00:02:50] tally of the election results, which is like the gospel for like who won this election by how many votes. That always takes weeks like that is never [00:03:00] something we know on election night.

Nick Capodice: [00:03:01] We have never known?

Hannah McCarthy: [00:03:03] Well, we've always had absentee ballots, in part because of our active duty military. 22 states and Washington, D.C. [00:03:10] allow absentee ballots to arrive sometime after Election Day as long as that ballot is postmarked on or sometimes before Election Day. And some states [00:03:20] plan to count those absentee ballots on election night, while some say they're not going to get around to it until the day or days after the election.

Nick Capodice: [00:03:29] Let me make sure I get this right. [00:03:30] Whether a state is able to report almost all of its votes on Election Day has everything to do with its rules about how ballots are accepted or rejected when [00:03:40] those ballots are received and what order they plan to count those ballots.

Miles Parks: [00:03:44] There's more than 8000 different voting jurisdictions in this country, and every single one of those 8000 does [00:03:50] it slightly differently. The thing that voters need to understand the most is that absentee ballots take longer to count than in-person votes. That's not a bad thing, though. [00:04:00] That's not something that people should be freaked out about.

Hannah McCarthy: [00:04:02] So don't freak out. Breathe in. Breathe out and watch the tallies roll in.

[00:04:10] That's [00:04:10] all she wrote on the vote, folks, if you have a question about what is going on in the world right now and how this democracy actually works, ask us and we will find the answers for you. Just click the [00:04:20] link on our home page at Civics101podcast.org.

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Made possible in part by the Corporation for Public Broadcasting.

The Election

What actually happens on the day of the election and in those that follow? Where did your ballot go and how is it being counted? Who keeps our election secure? This is the how and when of vote-counting in an American election, and what you need to know about Election Night 2020.

Our guides are New Mexico Secretary of State Maggie Toulouse Oliver, Casey McDermott, Miles Parks and Matt Lamb.

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

Civics 101

The Election

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

Hannah McCarthy: [00:00:04] The first time I ever voted and this is not an exaggeration. I was shaking with anticipation. I waited in line, walked up to the poll worker, gave them my name, got my ballot again, butterflies in my stomach. And then I stepped into the booth, pulled the curtain closed behind me. My heart is actually racing at this point. And I filled out my ballot so excruciatingly carefully because God forbid, I mess up and they don't count it right. And then finally, lightheaded from the sheer excitement of it, I walked that ballot over to the ballot box, feed it in, get my I voted sticker and then.

Nick Capodice: [00:00:48] Then?

Hannah McCarthy: [00:00:49] And then, I don't know all that anticipation, all that energy and excitement, all for what? My ballot just disappears into this black box and [00:01:00] my job here is done. And now I go home and watch the election night returns. And I wonder.

[00:01:05] Did my vote actually count and how do I know?

[00:01:12] Am I one of those hundreds of thousands of votes under that candidate's name in my state? Where did my ballot go? Who read it?

Nick Capodice: [00:01:21] So the first time you voted, you had an existential crisis.

Hannah McCarthy: [00:01:24] And I didn't really solve it until about a week ago. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:29] I'm Nick Capodice.

Hannah McCarthy: [00:01:30] And we are about to find out how a vote goes from your mind to the ballot to the count, to the election of the people in charge of us.

Maggie Toulouse Oliver: [00:01:38] So, you know, this is where the sausage making of the election process comes into play.

[00:01:44] This is Maggie Toulouse Oliver.

Maggie Toulouse Oliver: [00:01:46] New Mexico secretary of state. I was elected and basically immediately began serving as secretary of state in December of twenty sixteen. Prior to that, I was the county clerk in Bernalillo County, [00:02:00] which is the Albuquerque metropolitan area for 10 years. So I ran the elections there at the ground level.

Nick Capodice: [00:02:05] And as secretary of state, she also oversees elections at the state level, right?

Hannah McCarthy: [00:02:09] Yes. In New Mexico, the elected secretary of state, is also the chief election official. It's that way in a lot of other states, too. But sometimes the chief election official is actually an individual or a commission appointed by the governor. Sometimes it's the lieutenant governor. Sometimes it's a commission appointed by the legislature. And that's what you need to keep in mind throughout this episode. There is no one way we do elections in the United States. The Constitution is clear on this one. Elections are up to state legislators.

[00:02:42] The one thing that is consistent and extremely secure ballot processing process.

Maggie Toulouse Oliver: [00:02:48] What looks like a very simplistic process to a voter is actually an extremely complex process on the back end. And it's that way by design. First of all, your ballot when it comes into the custody [00:03:00] of the election officials. So when you're putting it into a voting machine or when it's received back through the mail at your county clerk or at your local election officials office, it goes then into a very strict chain of custody. It's going to be time stamped. It's going to be put in a locked ballot box. This is overseen at all times, either by your local election official staff or by your bipartisan group of election officials.

Nick Capodice: [00:03:26] It sounds like all that first Election Day nervousness was warranted in a way, you're taking part in a complex, high stakes process.

Hannah McCarthy: [00:03:35] It was actually a relief to me to learn about this process. It was a reminder of exactly how seriously states take Election Day.

[00:03:44] And when it comes to what does happen to my ballot, once I mail it in or feed it into the ballot box?

Maggie Toulouse Oliver: [00:03:50] Whether it's separating them from their envelopes, getting them ready to feed into a voting machine, every single one is going to be accounted for one by one. If there is a discrepancy, [00:04:00] your election officials are going to go back and try to account for that discrepancy. What happened? You know, oh, actually, we received an envelope back but didn't have a ballot in it. Right. And make that notation. And there's a whole process post election that most folks don't know about the canvass of the election, which is basically an audit. And what your election officials and those bipartisan boards are doing is going back and doing exactly this, what we call reconciliation to ensure at the end of the day that every single ballot was indeed counted. And if it wasn't, why?

[00:04:35] And to be able to explain, you know, it was rejected or it was spoiled or or what the reasoning is so that we literally have a record in place for every single ballot cast.

Nick Capodice: [00:04:45] I'm listening to this painstaking process and I'm thinking to myself, OK, but everyone is saying this year, 2020 is going to be different because way more states are making mail and voting available to everyone. We just don't know [00:05:00] how smoothly or quickly the counting process is going to go.

[00:05:03] Well, let's start with that mail in ballot itself.

Casey McDermott: [00:05:06] Whether your ballot is mailed, whether your ballot is hand delivered to a local election official, once it arrives at your local clerk's office, it stays in a vault until the day of the election.

Nick Capodice: [00:05:21] Oh, Casey!

Hannah McCarthy: [00:05:22] Yes, this is Casey McDermott, someone who we are lucky enough to work with at New Hampshire Public Radio. She covers and very well, I might add, voting and elections for the station and reminded me that, yes, those mail in ballots are super protected.

Casey McDermott: [00:05:37] One person actually told me that their vault is fireproof.

Hannah McCarthy: [00:05:41] Depending on your state.

[00:05:43] You were either automatically mailed in absentee mail in ballot or had to request one by the deadline. Now, for most states, that deadline is mid-October, though some allow an application as late as November 2nd or 3rd. And depending [00:06:00] on your state, you may have needed an excuse of some kind like illness or physical limitation to. Qualify for absentee voting and again, depending on your state, you may be required to have a witness sign your ballot as well.

[00:06:14] That ballot then goes into an envelope, which then goes into another security envelope and you sign it and you send it in either by the United States Postal Service or depending on the state and your preference, dropping it off in person at an election office or at an official outdoor ballot box.

Casey McDermott: [00:06:31] So the absentee ballot arrives inside an envelope, inside another envelope. And preprocessing allows local election officials to open that first outside envelope. And what they can do is they can look at that inner envelope that holds the absentee ballot. They can't open that inside envelope to look at someone's votes, but they can look at the the envelope that holds the ballot to make [00:07:00] sure, for example, that it's signed. They can look at the person's name on the ballot to make sure that they meet the requirements to vote in that community. They can get a lot of the stuff that they normally wouldn't have to wait until Election Day to do. They can get a lot of that done before the day of the election. But the ballots are not taken out of the inside envelope until Election Day and they're not counted until Election Day.

Hannah McCarthy: [00:07:26] I should clarify that is the mailing process in New Hampshire.

Nick Capodice: [00:07:29] Don't say it. Let me guess. It depends on the state.

Hannah McCarthy: [00:07:32] It does. Certain states allow vote counting up to two weeks before the election, but the vast majority don't allow counting until the polls close.

Nick Capodice: [00:07:42] I got one more mail in ballot question. We did this whole episode on how tax the Postal Service has been since the pandemic started. And yet all these ballots being mailed, some of them from states where you can request a ballot as late as the eve of Election Day or Election Day itself. So that means some ballots will be arriving [00:08:00] after Election Day.

Miles Parks: [00:08:03] In general, this election, the thing that voters need to understand the most is that absentee ballots take longer to count than in-person votes.

[00:08:13] That's not a bad thing, though. That's not something that people should be freaked out about.

Hannah McCarthy: [00:08:17] This is Miles Parks. He covers voting for NPR. I reached out to him after watching a video he made about ballot counting post-election. That was basically a gentle PSA to not lose your mind if you don't know who the president is on election night.

Miles Parks: [00:08:33] Let's take a step back here.

[00:08:35] None of these things are mistakes or problems, really, even if some people want to make it seem like they are.

Hannah McCarthy: [00:08:41] Between mail in ballots, different state rules for processing and various deadlines for receiving a ballot. The whole thing is probably just going to take longer this year.

Miles Parks: [00:08:53] I had an election administration expert say basically it's like if you had to write thank you cards for your [00:09:00] Christmas gifts and you get 10 Christmas gifts, you're like, oh, that's fine. All right, ten Christmas cards. But then you like next year, you just wake up and you have a thousand Christmas gifts.

[00:09:10] Like the act of writing a card is not difficult, but the act of doing it a thousand or in the case of some of these counties, twenty thousand, thirty thousand envelopes to be opened. Even just that those little things add up to take a lot more time.

Hannah McCarthy: [00:09:24] I do you want people to keep in mind it's not like election officials are totally unprepared for election night. Maggie Oliver brokedown, New Mexico's process for me, for example.

Maggie Toulouse Oliver: [00:09:34] So in my state, our county clerks are actually already actively in the process of accepting absentee ballots back and making sure the required voter information is is attached to that ballot so that it can be qualified starting as many as 10 days and as few as five days before Election Day. County clerks will assemble their absentee precinct boards and begin the actual process [00:10:00] of counting, processing and counting those ballots.

[00:10:04] The goal will be that. Fast forward to election night at 7:00 p.m. when our polls close here, county clerks will be able to begin posting early voting totals right away as the Election Day result totals are coming in throughout that evening, posting those as those come into them and then as quickly as possible, posting as many absentee voting results as they can. And of course, the more ballots that we have factored into those totals, the more likely we are to be able to say with confidence what the outcomes of those elections are going to be on election night.

Nick Capodice: [00:10:42] Ok, so some states may very well be able to tell us the winner on election night.

Hannah McCarthy: [00:10:45] It all depends on how the legislature and the election officials have decided the process is going to work. But still, we will almost certainly not have a clear winner on election night.

[00:10:56] Here's Miles again.

Miles Parks: [00:10:57] A couple states, especially a couple [00:11:00] of battleground states, Pennsylvania, Wisconsin, Michigan. The laws have not been adjusted to basically catch up with the fact that there is going to be so many more mail ballots. So election officials in these states are kind of have their hands tied behind their backs. They can't even open those envelopes. They can't do any of that processing work until either on Election Day. They can start doing that. In Michigan's case, that just passed a law that allows election officials to do it the day before the election. But regardless, that's going to put these local election officials in a really tough spot where they're going to be like having to open all of these ballots, check all these signatures, do all this work, you know, working 20 hours in a row. Twenty four hours in a row, four days in a row to try and get all these absentee ballots counted.

Nick Capodice: [00:11:46] I can't help but anticipate that with a little bit of dread, Hannah, because I'm used to knowing on election night who the president is going to be.

[00:11:53] Yeah, maybe you have to stay up a little later on certain years or maybe the other candidate doesn't make their concession speech for a day [00:12:00] or two. Or there was that long, endless night in 2000 where there's a bunch of hanging chads in Florida. But that wait this year is going to be tough.

Hannah McCarthy: [00:12:09] Miles reminded me that the winner of the presidency, who we learn about on election night, that isn't based on a complete count of the votes. That's just a network projection on election night.

Miles Parks: [00:12:20] We have never known the actual results. We've known unofficial results about who was going to win, who is projected to win, and those projections because of all the absentee ballots that are coming in, because they take longer to count and because it's harder for some of these media companies to model this out. Those projections might take a little longer this time around.

Hannah McCarthy: [00:12:43] Here is the thing about that lag time, though. It is true that you shouldn't freak out. It's true that the waiting period is a sign that all votes are being counted, but there's a good chance the delay will be misinterpreted.

Miles Parks: [00:12:58] I can guarantee you that the [00:13:00] longer it takes for us to have a result that. People have confidence in whether that's from media organizations they trust or from election officials. The longer that takes, the more conspiracy theories are going to happen. That is like the pinnacle of everything that makes a good conspiracy theory is like happening at that moment. At the same time, people have a political interest in forwarding those conspiracy theories, even people who are potentially running for office. You know, we've seen this we saw it in twenty eighteen in Florida where then Governor Rick Scott was running for a Senate seat. He was ahead by a bunch of votes after Election Day and then a couple of days after, which is normal, the absentee ballots were still being counted in some of the bigger jurisdictions. He comes out and does a does a press conference where he basically accuses the election officials of fraud, says, you know, I don't know why my lead is dwindling. I don't know where these absentee ballots are coming from.

Hannah McCarthy: [00:13:57] Mistrust in the election process comes from a [00:14:00] lot of places, politicians sometimes so mistrust when things aren't going their way. You know, something must have gone wrong here because I'm not winning or something will go wrong with this type of voting. And it won't be legitimate. But it also comes from the voter experience. I spoke with Matt Lamb, an assistant professor at Austin Community College, about this. What might make one person's election experience different from another's?

Matt Lamb: [00:14:28] Let's take states where they require voter I.D., African-Americans and Latinos or Latinos are less likely to have a voter I.D. than white voters, and even when they do, they're less likely to have the type of voter ID that can be quickly verified. And what I mean by that is here in Texas, we if you get a driver's license, it has a magnetic strip on [00:15:00] it that can be easily swiped. And your information comes up on the computer and it's and that's that. Well, in the state of Texas, African-Americans are statistically less likely to possess a driver's license if you have another type of ID, even if it is acceptable. Usually they don't have that magnetic strip. So what does a poll worker have to do? They have to pull out their poll book. They have to look up that person's records. And, you know, that can take time, especially if there's some question as to whether or not the actual ID presented meets state requirements.

[00:15:36] And so one of the misconceptions, I think, about the disparities in polling places is that they are inherently intentional, that public officials try to create disparities in polling place conditions.

[00:15:55] And no, I can't prove that it's not going on, at least [00:16:00] to some degree. I think it's far more likely that elections officials sometimes make assumptions about populations that just don't hold true on the ground.

Nick Capodice: [00:16:11] But you do hear people blame the city or blame the state when, for example, polling places close. I know that since 2016, something like 20000 polling locations have closed. And some states like California, Kentucky, North Dakota, they've closed over half of their locations, which then means less accessibility, especially, it seems, in communities with majority minority populations.

Hannah McCarthy: [00:16:39] Which followed a weakening of the 1965 Voting Rights Act in 2013.

[00:16:44] The Supreme Court said states no longer have to prove to the federal government that election law changes are not discriminatory. And this is an important distinction to make. There are election officials like Secretary of State Maggie [00:17:00] Oliver. And then there are the legislators, the people who make the election law in a state as they are empowered to do by our Constitution.

[00:17:10] And politics certainly does play a part in the state legislature.

[00:17:14] But the people actually running the election?

Matt Lamb: [00:17:17] In terms of the actual administrators, the county clerks, the elections, divisions of counties and local jurisdictions, believe it or not, even the ones that are elected, they take their fiduciary responsibility to make the voting process as smooth and as accessible as possible. Very seriously, they are ultimately accountable to their local jurisdictions, to their friends and neighbors. They want people to vote. They want anybody who is eligible and wants to vote to be able to vote.

Hannah McCarthy: [00:17:53] That said, if you have to wait in line for hours and hours and then deal with voter I.D. issues that [00:18:00] make you feel mistrusted, then you have had a bad customer experience with your government. But what you can do is show election officials how they should prepare for the future. You do that by turning out to vote and voting for the legislator who you want in charge of your election law.

Nick Capodice: [00:18:17] This is basically you saying, like, I want to talk to the manager. So if election law changes in our favor, maybe we'll start to trust elections a little more. But I do wonder, what is all this mistrust and elections mean for our country? My big takeaway so far is that we have more reason to trust the process than to not write. There are lots of problems, but they can be corrected. So how do we deal with all that rhetoric out there that says election night this year is going to be a sham?

Hannah McCarthy: [00:18:50] Here's Miles again.

Miles Parks: [00:18:51] The biggest thing is that that I've been trying to preach is that we over the last 20 years have seen [00:19:00] an overall decline in confidence in the legitimacy of our elections. And that was always a very abstract thing to me when I heard about, like professors talking about it's really important for people to have faith in, like how elections work and that they're fair. And that's really the case when you start talking about a peaceful transfer of power, not necessarily going down any conspiracy rabbit holes of if like what President Trump would do if he were to lose and all that stuff. But just in terms of the real possibility of violent unrest, considering how polarized the country is, and I think people need to really connect in their brains when they share on social media a theory about any thing about elections being fraudulent or being questionable or votes being suppressed for nefarious purposes.

[00:19:58] There are real issues [00:20:00] with our election system. But people need to understand that there also has to be a baseline of confidence for us to live in a peaceful country.

Hannah McCarthy: [00:20:09] One last thing, Nick, and this was something Casey McDermott and Maggie Oliver both said, which finally settled that black box. What next question that I used to have about my ballot in the election.

[00:20:23] This is actually a transparent process. Officials aren't trying to do things behind your back.

Maggie Toulouse Oliver: [00:20:30] Most folks don't understand how transparent our election processes actually are. There is literally nothing that happens in an election in the United States behind closed doors. There is always either a bipartisan group of local election officials who really are just volunteers from your local community who are engaging in the process of helping election officials run the election. Or there are observers, watchers from political parties, from candidates, from third party organizations, [00:21:00] from academic institutions that are observing the election process to make sure that everything is going the way that it's supposed to, that it's following the law, that all of the I's are being dotted and T's are being crossed.

Casey McDermott: [00:21:11] I was talking to a local election official recently and just asking, what do you make of all of the rhetoric around elections and whether or not they can be trusted lately? And she was like, well, I just ask them, do you trust your neighbors? And maybe they don't trust their neighbors and maybe they have other reasons for not trusting their neighbors. But in general, remember, your neighbors are the ones that are doing this. And I think that's a really good gut check for a lot of people.

Nick Capodice: [00:21:40] All right, chin up, vote and believe in it.

[00:21:44] And remember that your election officials know more about the election than your friends on Facebook. So give them a call. It is their job to help you.

[00:22:02] This [00:22:00] episode was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jackie Fulton.

[00:22:08] Erica Janik transmits all communication official or no in double-signed envelopes. Music in this episode by Florian Decros, Silent Partner, Scanglobe, Revolution Void, Paddington Bear and Emily A. Sprague. We're here for you and only here because of you and you know, democracy and its beautiful, maddening complications. If you have questions about this country, any questions, no matter how small, no matter how obvious the answers may seem. Ask us. We will make an episode for you. Send us an email at Civics101@nhpr.org. 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.

Ask Civics 101: Why Is Our Voting Age Eighteen?

We take it for granted that the voting age is eighteen in the United States, but it hasn’t always been this way. We lowered that age from twenty-one in the seventies — so does that mean we could lower it again? Who gets to make that decision? Ask Civics 101 is on the case.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: How Did the Supreme Court Become so Important?

How did the Supreme Court go, according to Alexander Hamilton, from “beyond comparison the weakest of the three departments of power” to the grand body that rules on the constitutionality of federal law? Ask Civics 101 takes a closer look at the highest court in the land, appointments and the relationship between party and justice.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: What is the Hatch Act?

What is the Hatch Act? When was it created? Its purpose is to restrict political speech from any federal employee (including members of the Cabinet and USPS employees) while they are working but what are the penalties? Who is exempt? And finally, has anyone been fired for violating it? Let's find out.

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Made possible in part by the Corporation for Public Broadcasting.

Freedom of the Press: Part 2

Note: There is a more recent, updated version of this episode - check our episodes page!

A free press, ideally, learns what is happening in our democracy and passes that information on to us. How, then, do we learn the truth about this country when there’s so much misinformation, so many opinions, claims of fake news and widespread mistrust of the truth?

Joining us again for part 2 are Melissa Wasser and Erin Coyle.

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

Civics 101

Freedom of the Press Part 2

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

CNN Arrest footage: [00:00:37] Wherever you want us, we will we will go, we are just getting out of your way when you were advancing through the intersection.

Hannah McCarthy: [00:00:42] So have you seen this clip, Nick?

Nick Capodice: [00:00:45] Yeah, I've seen it.

CNN Arrest footage: [00:00:46] I'm sorry, Your Honor. OK, do you know why I'm under arrest, sir? Why? Why am I under arrest?

Hannah McCarthy: [00:00:53] This is the end of May of this year. Twenty twenty. During protests in Minneapolis following the police killing [00:01:00] of George Floyd, a CNN television crew was arrested by police as they were filming. So this is on live television.

CNN Arrest footage: [00:01:09] We're all about to be arrested. That's our producer.

Hannah McCarthy: [00:01:13] Officers said that the crew refused to move, even though you hear them offer to move or they later released the crew after learning they were news media, even though the crew told them they were news media.

CNN Arrest footage: [00:01:25] Right now on live television in handcuffs. I've never seen anything like this.

[00:01:32] I'm being arrested now.

Hannah McCarthy: [00:01:34] So I watched this and I was like, OK, well, what about the First Amendment? Isn't that a violation of the freedom of the press?

CNN Arrest footage: [00:01:46] The police are now saying they're being arrested because they were told to move and didn't.

Hannah McCarthy: [00:01:55] This is Civics 101, the podcast refresher course on the basics of how our democracy works. [00:02:00] I'm Hannah McCarthy.

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

Hannah McCarthy: [00:02:02] And this is part two on Freedom of the Press. And it's a murky one because, well, press freedom can seem a little tenuous these days.

Melissa Wasser: [00:02:11] In 2020 alone.

[00:02:13] One hundred and eighty eight journalists have been attacked, 60 of them have been arrested.

[00:02:18] This is Melissa Wasser, a policy analyst with the Reporters Committee for Freedom of the Press.

Melissa Wasser: [00:02:24] There's been many damaged equipment searched in search and seizure of that equipment.

[00:02:30] And during the Black Lives Matter protests alone this summer, over 740 reported aggressions against the press. We saw it in Minnesota when the CNN crew got arrested, we see it at rallies by the president where he could say something negative and kind of fanned the flames.

[00:02:51] And you see the crowd reacting to the highest office holder in the land saying these people are fake news. [00:03:00] They're not giving you the real information.

Trump: [00:03:02] Fake news, fake news. They are fake.

Reporter at Trump rally: [00:03:06] You can hear there is a chorus of those and other chants of this Trump crowd here in Tampa, Florida, they're saying things like saying I'm. Go home and fake news, Wolf. Obviously, all of those things are false. We're staying right here. We're going to do our job and report on this rally to all of our viewers here tonight.

Nick Capodice: [00:03:24] Hannah to your question. Is it illegal to, for example, arrest the press while they're working? Was that a violation of First Amendment rights?

Erin Coyle: [00:03:33] Well, the First Amendment doesn't protect us against breaking laws.

[00:03:39] There is a circuit court opinion that says that the First Amendment is not a license to trespass or steal. I can't say I'm a journalist, so I'm going to go steal all of the information to write this article.

[00:03:54] This is Erin Coyle, a media law and history of journalism professor at Temple University. So [00:04:00] when it comes to restricting the press, her point is that journalists don't necessarily have special privileges. The freedom of the press clause says simply to sum it up, Congress shall make no law abridging the freedom of the press. And in fact, the Supreme Court has had a fairly narrow reading of that clause. For example, there's a case called Houchins versus KQED, Inc. The court ruled that the press did not have the right to enter a jail, to film that the press had the access that the public had, and that was it.

Erin Coyle: [00:04:37] And these things can become really challenging when covering a live event. For instance, when I was living in Baton Rouge several years ago, there were journalists who were they were charged under a law that allows arrests [00:05:00] for impeding traffic on a state highway and just accidentally having one foot go on to that state highway. One instance was seen as you're impeding traffic, you broke the law. We're going to charge you. The First Amendment law related to access essentially says that the access rights that journalists have are there because they're the public's rights. And we get to go where the public could go so we don't get special treatment to be able to step into a highway and tell traffic to stop because we could get a better photograph or better video from being at that angle.

Nick Capodice: [00:05:50] I hear her, the press can't be breaking the law to do its job, but isn't the whole point of the press to witness and report on what's going on so [00:06:00] the American people know what's going on? How can they do that? In other words, what makes them a free press if they can be arrested while doing their job?

Erin Coyle: [00:06:09] It's very disappointing to see how journalists are being treated. It's disheartening to see journalists getting injured and having to wear body armor and gas masks to go do their jobs. And very disappointing to see journalists getting arrested for covering protests. And yes, I read the arguments that, well, the law enforcement couldn't tell who's a member of the press and who is a protester.

[00:06:42] I think the key question there is where members of the press doing anything wrong.

Hannah McCarthy: [00:06:46] This is what really clinches it for me, because if we look back at that CNN tape, for example, the cops are saying back off and the reporter saying, OK, yeah, we'll go wherever you want, but then they get arrested anyway. Or when [00:07:00] it comes to curfew and mobility orders, basically the governor saying get off the streets by 6:00 p.m. You can't go here, here, here.

[00:07:07] Well, many states explicitly build media exemption into that.

[00:07:12] But that hasn't necessarily mattered lately.

Press covering protests: [00:07:16] We're news media hour news media, head out, media is exempt from curfew.

Hannah McCarthy: [00:07:38] Here's Melissa again.

Melissa Wasser: [00:07:40] We found that most most Americans believe a free press is super important.

[00:07:45] They know it's the First Amendment.

[00:07:47] They can name it in the in the five freedoms, but they don't see why it's at risk. And that's really troubling.

Nick Capodice: [00:07:58] Just to jump in for a second, when Melissa says [00:08:00] the five freedoms, she's referring to the five freedoms enshrined in the First Amendment, they are religion, speech, assembly, petition and of course, press.

Melissa Wasser: [00:08:11] There have been signs over the past few years that, you know, it is under attack.

[00:08:18] I mean, the most serious, right, has been the murder of the journalist at the Capital Gazette in direct response to their reporting about the shooter.

[00:08:30] We've seen during the protests. They've been pepper sprayed and tear gassed. They've received death threats. How many we saw those hoax bomb threats at CNN. They if we also think about women and people of color and queer journalists online, the amount of online harassment that journalists get, I mean, there's signs all around us and it can and it consistently gets worse and worse and worse.

[00:08:58] And I think there needs to [00:09:00] be even more general awareness that these are the signs that, you know, freedom of the press is kind of slipping, at least in the United States.

Nick Capodice: [00:09:09] But did Melissa or Erin say why this is happening now? I know you've got a debate about what the press is actually free to do, but this is more than that. What has caused press freedom in the United States to slip?

Erin Coyle: [00:09:24] We can see patterns of presidents being very upset with the press throughout history.

Hannah McCarthy: [00:09:30] Yeah, when the president doesn't like or respect you, well, good luck getting other people to.

[00:09:37] It's the job of the press to find and tell the truth about people in power. And they do that by assembling information, gathering data, talking to witnesses and experts and then conveying an account of what they found and what it means and that much scrutiny, that intense analysis of what you do and say and how it affects people. Well, [00:10:00] who would want that?

Erin Coyle: [00:10:38] It's just human nature to want to defend ourselves if we see something nasty about us and put it out, and it's no wonder to me that people get upset when that happens. So part of this is probably just part of human life. But [00:11:00] also, I was listening last week to a tape recording of President Nixon being very upset with The New York Times and using some colorful language about why he wasn't going to talk with anyone from The New York Times because he was angry with news coverage.

Richard Nixon: [00:11:22] If I were going to give an interview to people, Why would I give it to a newspaper man anyway. Give it to a television man. Darn right. He will never be in my office as long as I'm president. Never. And no man from the Times will ever be in my office as long as I'm President. It isn't worth it. Agreed? I sure do. That's it.

Nick Capodice: [00:11:46] But it's not just the people in power who are wary of the press these days, it's also the people who aren't even necessarily being written about members of the public who have a negative perception of media.

Erin Coyle: [00:11:57] So I think today it's [00:12:00] very concerning to have these discussions about can there be trust in journalists today when people are hearing the term fake news and when fake news gets applied to something often on an emotional basis rather than on a basis of whether something is accurate or not, that contradicts what we teach journalism is supposed to be. Journalism is supposed to be accurate, and sometimes people are not going to like the truth.

[00:12:37] Erin reminded me that, of course, there was a world of print media before the First Amendment. And in that world, truth was not a defense against a claim that something was a lie. Like with libel cases, libel is printing something false about someone that can damage their reputation.

Nick Capodice: [00:12:58] Hold up. I want to make [00:13:00] sure I understand you here. You're saying that the truth was not a viable defense against a claim that something is libel?

[00:13:09] Well, in this case, seditious libel. Sedition is anything that inspires or causes people to rebel against a state or a monarch. And under English law, seditious libel was illegal before we had the First Amendment.

Erin Coyle: [00:13:27] As we know it now, printers were published for seditious libel and seditious labels essentially made people in power or authority and the government look bad or hurt their reputation. And under seditious libel laws, the greater the truth, the greater the libel. It wasn't until the 17th thirties that their notion was accepted that truth could be a defense for libel. And [00:14:00] that didn't come from the law. That came from a very persuasive argument that jurors in the colonies accepted the seditious libel laws still existed after the seventeen thirties.

[00:14:16] It just wasn't very likely that people in the colonies were going to support punishing truthful criticism of a government authority.

Nick Capodice: [00:14:32] Truthful criticism of government authority. So basically you're allowed to say something negative as long as it's backed up by evidence.

Hannah McCarthy: [00:14:41] Yeah, and within that, it's important to recognize what is a statement of opinion and what is a statement of fact. There's a lot of opinion out there right now, some of it based on fact and some of it based on it. Kind of nothing. Give me an example you're talking about. All right. So if someone writes that graph, for example, covid-19 [00:15:00] could have been handled better in the United States. They're basing that opinion on caseloads and the responses of people in power to the virus. Right. But if someone says that testing people for the virus is what leads to more cases, that is something based on paranoia and fear. Maybe not science or fact. And because of the Internet, because anyone can say anything and we can all read it, there's more stuff out there than ever. And these days, when that opinion is made public, especially if it's an opinion about somebody, you might hear it and dismiss it as fake news, especially if you don't like it. And then you might take it a step further and say that the media outlet itself is fake news.

[00:15:47] So when we're calling things fake news, that can end up being really confusing. I mean, how do we know what is fact or not?

Melissa Wasser: [00:15:54] People are smart. They they know where they want to be able to turn for news.

[00:15:59] I [00:16:00] think sometimes people kind of get tripped up between what is news and what is opinion. And it's not invalidating any network or paper or anything like that.

[00:16:11] But sometimes, you know, there's people who are reporting the news and reporting the story directly to people, whether that's, you know, photojournalists or writing news articles online or giving them directly on broadcast or what you're doing on radio.

[00:16:27] You know, it's it's important that people understand the factual stories. But there's also people who give opinions about different things on both sides, across the political spectrum. And when people don't agree with the story that they're hearing, they might think, oh, they don't like the president, they don't like Congress, they don't like my state governor. They're fake news.

[00:16:52] And it is so it really does kind of like weaponize that term and demonize the press.

Nick Capodice: [00:16:58] So, Hannah, with the acknowledgement [00:17:00] that you and I are members of the press, this demonizing of the press feels like it could have seriously negative consequences. One of the reasons the framers enshrined that free press in the Bill of Rights is in part that they saw what could happen if the goings on of government were kept hidden from the people. This idea that sunlight is the best disinfectant, as they say, that exposing potential corruption and bad deeds is the best way to stop corruption and bad deeds from happening in the first place. The press is ideally there to protect democracy.

[00:17:34] But if we don't trust the press or we call the truth lies, then we're not actually aware of what's going on anymore.

Erin Coyle: [00:17:41] A society in which people know enough about our government to be able to have a say, to have informed discussions and debates, to cast informed votes.

[00:17:55] We need journalists out there doing their job. Journalists [00:18:00] are out there representing all of us, going to the trials. We can't take off work to go to going to protests that we might not be healthy enough to go to taking those risks to provide us with information.

Hannah McCarthy: [00:18:20] Erin brought up this one point that I think is pretty important, that it's not just that the public may feel they can't trust journalists. It's also that a government opposed to the press may result in a press that's afraid of the government.

Erin Coyle: [00:18:35] One of the concerns that arises when talking about freedom of speech and freedom of the press is that some government actions can be a deterrent. And there are some instances in which. The. Potential punishment or potential fine would be so [00:19:00] great that people might not be willing to address that topic. It's just too much risk to be able to take to be able to address that specific topic. And that's called a chilling effect.

Nick Capodice: [00:19:20] I wasn't aware of the term chilling effect until I took a class on the First Amendment in college, but yeah, it's it's a big deal.

[00:19:27] It's basically censorship, discouraging the exercise of legitimate rights and in this case, the freedom of the press with legal threats.

[00:19:37] Like the threat of a lawsuit or the threat of a passage of a law that's basically intimidating to the point that it prevents people from exercising their rights.

Erin Coyle: [00:19:45] When we think about the tradition of press freedom and societal expectations for press freedom. It's hard to believe that there are not a set chilling effects that could [00:20:00] be occurring right now because of journalists being called nasty things or people engaging in intentional intimidation of the press. Those are very important factors for us to consider and to address.

Nick Capodice: [00:20:18] So here's where we're coming back around to a principle that we talk about a lot on the show, which is that it doesn't really matter what's written in the Constitution or our laws and statutes if we don't uphold it and protect it, and that the government can basically do whatever the government wants to do.

[00:20:37] If we want to stop or change that, we need to do something about it. But we definitely can't do something about it if we don't know what's going on. So what do we do?

Melissa Wasser: [00:20:48] You know, there are ways to to fix these things, including not demonizing the press to make sure that journalists are protected when they go to do their jobs from assault, arrest and threat of retaliation. [00:21:00]

[00:21:00] And that could be at the federal level through a bill in Congress or at your state level or even local level with local city councils or mayors signing executive orders. You know, it's it's a full level. It's it's at all three levels.

[00:21:15] And so I think it is in front of them. And maybe sometimes people are turning a blind eye and not realizing how threatening these little acts are until they all add up and then it'll be too late. So I think it's really changing the hearts and minds of people, too, to see why these all constitute risks to press freedom.

Hannah McCarthy: [00:21:39] I think the bottom line is that it's not really about whether you agree with the news or coverage of the news, the publishing of provably true information about our government and communities is necessary to maintaining a healthy democracy.

[00:21:57] That's how we make sure the Constitution is [00:22:00] actually upheld. Not liking what we learn about our government can actually be a sign that good journalism is being done. And there's a reason that we say knowledge is power. And in American democracy, it's one of the few true powers that we, the people have.

[00:22:35] Our listeners are what make us us if Nick and I were just shouting into the void with no curious, skeptical, civic minded people out there to hear us, well, we would just have to close up shop. But here you are letting us bend your ears and joining us as we try to figure out how this democracy works. It's our privilege and delight to offer this to you for free. But [00:23:00] the one snag is that Civics 101 is not free to make while the team here mostly subsists on civic pursuit. We do also need money to survive and equipment and all sorts of other stuff that comes at a cost that Nick and I are blessedly spared the details of. But my point is, if you like Civics 101, if you find it useful, if you want us to keep going and to join our efforts to maintain a healthy democracy here in these United States, please take a moment and donate to Civics 101. We believe there's power in understanding how this country works. With your help, we can keep figuring it out and sharing it with you. Check out the donate link on our home page at Civics101podcast.org.

[00:23:51] That does it for this free press today. This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jackie Fulton. Erica Janik, [00:24:00] besides the five freedoms before every meal. Music in this episode, by broke for free, blue dressed man, Lee Rosevere and Daniel Birch, Scott Gratton, Ikimashoo Aoi and spectacular sound productions. You may have noticed that we have this new thing we're doing, by the way, called Ask Civics 101. You ask us about what's going on in this ever evolving democracy. And we make you and everyone else a short and sweet episode answering that question. So if you've got a burning query about our government or politics, you can email us at Civics 101 at any nhpr.org and we will get cracking and ask Civics 101 just for You. Civics 101, supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: What Does the 25th Amendment Say About the President Stepping Down?

The 25th Amendment tells us what happens if the President is unable to do his or her job -- namely that the Vice President steps in. But under what circumstances does that actually happen, and how has this amendment been invoked before?

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: How Do Recounts Work?

A recount may be undertaken if there are concerns about human error or fraud… and in some states, there are laws about close elections automatically triggering recounts. Recounts can happen in local, state, federal, and even presidential elections. How do they work? And how often does a recount change the outcome of an election? Let's find out.

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Made possible in part by the Corporation for Public Broadcasting.

Presidential Debates

Today we’re exploring the relatively recent phenomenon of Presidential Debates. How are they run? When did we start doing them? Why was George HW Bush looking at his watch?? And most importantly, why should we keep doing them?

Our experts in this episode are debate scholar Alan Schroeder, and Executive Director of the Commission on Presidential Debates, Janet Brown.

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Episode Resources

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

Civics 101’s handy VP debate nonverbal expression tracker

C-SPAN’s debate analysis worksheet: Modes of Persuasion, using ethos, logos, and pathos

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

Civics 101

Presidential Debates

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

Nick Capodice: [00:00:07] September 26, 1960, nine thirty p.m. The show Peter Gunn had just finished airing on NBC and then 66 million Americans tuned in to watch a revolution in the process for selecting a president.

Howard K. Smith: [00:00:24] Good evening. The television and radio stations of the United States and their affiliated stations are proud to provide facilities for a discussion of issues in the current political campaign by the two major candidates for the presidency. The candidates need no introduction.

Howard K. Smith: [00:00:41] The Republican candidate, Vice President Richard M. Nixon,

[00:00:44] Vote for Nixon and Lodge November eight.

Howard K. Smith: [00:00:46] And the Democratic candidate, Senator John F. Kennedy. According to rules...

Nick Capodice: [00:00:57] I'm Nick Capodice

Hannah McCarthy: [00:00:58] I'm Hannah McCarthy.

Nick Capodice: [00:00:59] And this [00:01:00] is one Civics 101 one, the podcast refresher course on the basics of how our democracy works. And today we're talking about the relatively recent tradition of presidential debates. When did they start? Who decides how they're run? Why do we do them? And what we should be looking for when we watch them? Hannah what is your first debate memory?

Hannah McCarthy: [00:01:19] I would say it's more like an entire season of debates. It was during the Obama McCain election of 2008. And I I knew that I would be turning 18 a couple of days after the election. So I watched these debates with a great deal of pain in my heart because I knew I wouldn't actually be allowed to vote in that election.

Nick Capodice: [00:01:41] I think I saw Saturday Night Live parodies of the debates before I saw the real ones.

Dana Carvey as George HW Bush: [00:01:45] A thousand points of light. Stay the course.

Nick Capodice: [00:01:51] I think my first visceral staying up late, watching the debate memory is October of 1992 between actually, I should say among, George [00:02:00] H.W. Bush, Bill Clinton and Ross Perot.

Hannah McCarthy: [00:02:03] Oh, that's right. That is the first and so far only three candidate presidential debate. That's so cool. You opened with a clip from the 1960 debate between Nixon and Kennedy, which I know was the first televised debate. But it's certainly not the first debate, is it?

Nick Capodice: [00:02:25] Well, here's Alan Schroeder, he's professor emeritus at Northeastern University and he's the author of several books on presidential debates.

Alan Schroeder: [00:02:33] Well, there were the live debates such as the Lincoln Douglas debates, the senatorial debates of 1858.

Nick Capodice: [00:02:39] 1858. Those debates were for a Senate seat, not for the presidential election. But what's interesting about them is they were published two years later when Abraham Lincoln and Stephen Douglas were the presidential candidates. But until the late 19th century, candidates for president did little personal campaigning. Their supporters did most of the campaigning [00:03:00] and attacking of opponents.

Alan Schroeder: [00:03:01] So pre broadcast, there were debates held in person between candidates. They were these big events where spectators would show up by the hundreds and bring picnic baskets and sort of make an all day activity out of it.

Nick Capodice: [00:03:17] But once broadcasting radio and then television came on the scene, there were more attempts to introduce political debates.

Hannah McCarthy: [00:03:24] What was it in 1960 then that caused this change? Why the debates then?

Alan Schroeder: [00:03:29] They were really a creation of the television networks of that era who wanted to be taken more seriously. You know, they were entertainment media, but not so much information media. So the networks in the late 50s saw an opportunity to legitimize themselves by doing political debates on television. And they got John F. Kennedy on board. And once he was on board, Nixon sort of couldn't get out of it without looking like a coward. And so that's how we got the first debates [00:04:00] in 1960.

Nick Capodice: [00:04:01] So Americans who listened to that first debate on the radio were pretty split on a winner. But television viewers enormously favored Kennedy.

Hannah McCarthy: [00:04:10] Why? What happened?

Alan Schroeder: [00:04:11] Nixon had been hospitalized before the first debate and had only recently been released. So he was he had lost a lot of weight. He was pallid. He was lured by the Kennedy people into thinking that John F. Kennedy hadn't used makeup. So by God, he wasn't a use makeup either. And he does look bad. You know, you look at it now and it is you know, he is this scarecrow that the sweating scarecrow that history remembers him has. But you could definitely see how uncomfortable he was and and ill at ease and ill in general.

Nick Capodice: [00:04:49] So in this debate, Nixon and Kennedy were seated when not taking questions and then they would rise to speak behind a shared podium to a panel of news reporters.

Richard Nixon: [00:04:58] I would suggest, Mr. Vanocur, that, [00:05:00] you know, the president that was probably a facetious remark. I would also suggest as far as...

Nick Capodice: [00:05:06] And when Nixon was behind the podium, you could sort of see him bending his knee in discomfort as he answered questions. Now, Kennedy Kennedy had prepared for this debate. He had studied camera angles. He'd read a lot about TV. He wore makeup.

John F. Kennedy: [00:05:21] I come out of the Democratic Party, which in this century has produced Woodrow Wilson and Franklin Roosevelt and Harry Truman and which supported and sustain these programs.

Nick Capodice: [00:05:30] But Nixon treated this just like another campaign event and refused to wear makeup.

Alan Schroeder: [00:05:35] Nixon himself went on what he called a milkshake diet, where he just started pounding the calories and in a hope of gaining weight again and did look better in the later debates. He also learned the hard way to use makeup.

Hannah McCarthy: [00:05:49] I feel like there's so much more to lose in a debate than there is to gain, like a single gaffe, a single mistake, or even what [00:06:00] you look like can affect your electability.

Nick Capodice: [00:06:03] Yeah, maybe this is why after 1960, there were no presidential debates until 1976.

Hannah McCarthy: [00:06:10] Ok, this brings me to the question of who decides how these things are going to go. Like, are they seated or are they standing? How much time do they get? Who asks the questions? Do the candidates fight with each other behind the scenes and then come up with a mutual solution?

Nick Capodice: [00:06:28] They do not.

Alan Schroeder: [00:06:29] Well, every general election, presidential debates since 1988, it has been sponsored and staged by the Commission on Presidential Debates. And then the candidates can either agree or disagree and they'll try to negotiate a little bit around the margins. But basically, they don't have as much clout. The campaigns don't have as much clout anymore as the debate commission.

Hannah McCarthy: [00:06:52] I didn't know that there was a commission on presidential debates.

Nick Capodice: [00:06:55] I didn't either!

Hannah McCarthy: [00:06:56] What do they do?

Janet Brown: [00:06:57] The Commission on Presidential Debates is [00:07:00] a private, nonprofit, nonpartisan corporation based in Washington, D.C. We were created in 1987 and have been doing the general election, presidential and vice presidential debates ever since 1988. We select the moderator and the moderator selects the questions which are not known to the commission or to the candidates.

Nick Capodice: [00:07:24] This is Janet Brown, the executive director for the Commission on Presidential Debates. I called her a week before the first debate of this election cycle.

Nick Capodice: [00:07:32] How are you, Janet?

Janet Brown: [00:07:34] I'm insane. Thank you for asking.

Hannah McCarthy: [00:07:36] How many debates has she run?

Janet Brown: [00:07:38] 30 debates,

Hannah McCarthy: [00:07:39] 30?

Nick Capodice: [00:07:40] 30! The rules that the commission sets are public knowledge, like the format, who the moderator is, the dates. But there are non-public agreements as well. It's not all out in the open. In 2012, a Time reporter published Obama and Romney's memorandum of understanding. That's a document that's the secret [00:08:00] rules for a debate. And that included no direct questions from one candidate to the other, no requests for a show of hands, no call outs to any non-family member of the audience, and an agreed upon comfortable temperature. To be clear, the commission manages presidential and vice presidential debates, not the primary debates. Those are run by the party. And as such, they can get a little wacky.

Rand Paul: [00:08:23] I don't trust President Obama with our records. I know you gave him a big hug and if you want to give him a big hug again.

Ronald Reagan: [00:08:23]  I am paying for this microphone.

Nick Capodice: [00:08:39] For presidential debates, the commission adopted the journalist panel format that we heard about from the 1960 debate. That's a format that continued in every debate from 1976 on.

Janet Brown: [00:08:49] But it became clear that if you could reduce the number of other participants on the stage and focus more time and attention on the candidates, that's what serves [00:09:00] the public best. So starting in 1992, we experimented with having at least part of one debate that was run by a single moderator.

Hannah McCarthy: [00:09:10] I'm curious about the town hall format of debates where the audience is a bunch of uncommitted voters and they're speaking directly to the candidates. When did we start doing that?

Janet Brown: [00:09:22] Town hall format actually goes back to 92. It was introduced that year and has proven very popular with the public for one primary reason. People identify with the citizens who have been selected to ask questions of the candidates. As you can well imagine, it changes the dynamic if a candidate is answering a question from a citizen as opposed to a journalist.

Anderson Cooper: [00:09:46] One more question from Ken Bone about energy policy. Ken?

Ken Bone: [00:09:50] What steps will your energy policy take to meet our energy needs while at the same time remaining environmentally friendly and minimizing job loss for fossil power [00:10:00] plant workers?

Janet Brown: [00:10:01] And the nature of those conversations is is quite different than it is when you have a journalist who is conducting the whole debate and and asking the questions. It's a particular privilege to work on those because needless to say, those citizens don't do television on a daily basis. This is this is a a very unusual thing. They come to it with such seriousness and sense of purpose on behalf of their fellow citizens. And that's that's a particularly meaningful one to be a part of.

Hannah McCarthy: [00:10:36] How do the candidates even prepare for these?

Nick Capodice: [00:10:38] They each hire someone to be their sparring partner. It's a crucial role in preparing for debates. Their sparring partner is usually a savvy politician who impersonates their opponent like not their accent or clothing or anything, but their persona, their ideas, the way they might phrase questions and answers. And they do mock debates for days on end.

Hannah McCarthy: [00:10:58] So Janet told us that the [00:11:00] candidates don't know the questions that they're going to be asked. But when they learn who the moderator is going to be, do they prepare based on who that person is?

Nick Capodice: [00:11:11] Yeah, they do. Here's a clip of former President George H.W. Bush talking to journalist Jim Lehrer about his opinion on debates.

George HW Bush: [00:11:18]  Ugly. I don't like em,

Jim Lehrer: [00:11:21] Why not?

George HW Bush: [00:11:22] Well, partially, I wasn't to good at them. Secondly, there's some of it's contrived show business. He promised to get the answers ahead of time. Now, this guy, you got Bernie Shaw on the panel, and here's what he's probably going to ask you. You got Lesley Stahl over here and she's known to go for this and that. And you can be sure I remember what Leslie's is going to ask...

Nick Capodice: [00:11:43] And as we learned with Nixon in 1960, the visuals of a debate can matter as much as what is actually said. Alan told me one of the most telling moments in debate history involved the first George Bush glancing down at his watch during a town hall debate, giving the impression to the studio audience and [00:12:00] the audience at home that he had no interest in being there now.

George HW Bush: [00:12:03] Was I glad when the damn thing was over? Yeah, and maybe that's why I was looking at it. Only 10 more minutes of this crap.

Nick Capodice: [00:12:10] That was the town hall debate where a member of the audience asked Bush this question.

[00:12:14] Yes. How has the national debt personally affected each of your lives?

Nick Capodice: [00:12:20] And Bush actually said, I don't get it. And he stayed behind his podium and he honestly did not answer the question.

Alan Schroeder: [00:12:26] And then Bill Clinton comes in right after him and walks to the edge of the stage and directly engages the woman and asks her about her life and empathizes, as only Bill Clinton could do.

[00:12:38] How has it affected you again? You know, people who lost their... Their home. Well, I've been governor of a small state for 12 years. I'll tell you how it's affected me every year. Congress and the president...

Alan Schroeder: [00:12:54] And so, you know, it was it was a telling moment that I think matters, even though it's [00:13:00] trivial in a way, it matters because presidential campaigns strive so hard to control everything that goes out to the public. And so when something busts through the veneer like that, it's, I think, our job as voters to pay attention.

Hannah McCarthy: [00:13:18] You've got the moderated debate. You've got the town hall style debate. Are there any plans for like any other kind of debate format in the future?

Nick Capodice: [00:13:27] Yeah, Janet said there were some ideas boppin around.

Janet Brown: [00:13:28] But if you look back at different debates, there are ones that stand out. And as it happens in Massachusetts and senatorial and gubernatorial races from some years ago, where essentially the moderator served almost as a timekeeper and the candidates were willing to do debates that that essentially were conversations between the candidates.

Janet Brown: [00:13:55] From our work, it's clear that the public wants the maximum [00:14:00] amount of attention and time focused on the candidates. That's who they're trying to learn about. So if we can continue to work toward having the candidates with minimal intrusion, interference by the moderator, that obviously is what the public really finds very, very valuable.

Nick Capodice: [00:14:20] And the commission is responsive and flexible to these debates as they happen. After the first debate in this cycle,

Chris Wallace: [00:14:28] Your campaign agreed that both sides would get two minute answers uninterrupted. Well, your side agreed to it. And why don't you observe what your campaign agreed to...

Nick Capodice: [00:14:43] They made a public statement that they would revisit the format and the rules and a source close to the commission said they were considering cutting mics if the candidates kept interrupting each other.

Hannah McCarthy: [00:14:53] I will say it did recently read that people tuning in to the Trump [00:15:00] Biden debate, the most recent one, 84 percent, said that the debate wasn't going to change their mind either way. So what is the point of a debate if not to change minds?

Alan Schroeder: [00:15:15] I think debates are very important, even if they don't really decide the election, because there's not much during the campaign that belongs to the people, to the voters. But debates do. The journalists have to step aside. The candidates have to respond spontaneously and in real time. And we just don't get that many peeks behind the curtain. And so when one is offered to us, I think we have to pay attention as far as what to keep an eye on during the debate. One of the things that always fascinates me is how do the candidates treat each other? You know, what are they doing when the other person is speaking? What are their facial [00:16:00] expressions toward the other person? And I think you can kind of get some insight into them as human beings just based on that that very little point. How do we treat other people?

Janet Brown: [00:16:13] At the end of the day, they are individual human beings and they're running the gauntlet of a very public and rough and tumble campaign or service. And you are constantly reminded of the poignancy that these are people and that their decisions will involve those closest to them and change their lives.

Howard K. Smith: [00:16:36] I've been asked by the candidates to thank the American networks and the affiliated stations for providing time and facilities for this joint appearance. Other debates in the series will be announced later and will be on different subjects. This is Howard K. Smith. Good night from Chicago.

Nick Capodice: [00:17:02] All [00:17:00] right, that's debate.

Hannah McCarthy: [00:17:03] No, it isn't.

Nick Capodice: [00:17:04] Yes, it is.

Nick Capodice: [00:17:06] Today's episode was produced by me Nick Capodice with you Hannah McCarthy. Thank you.

Hannah McCarthy: [00:17:10] Jacqui Fulton knew Jack Kennedy. Jack Kennedy was a close personal friend of Jacqui's. And Senator, you're no Jacqui's Jack,

Nick Capodice: [00:17:17] Erika Janik is our executive producer and she paid for this microphone.

Hannah McCarthy: [00:17:20] Music in this episode by Chad Crouch, Dyala, Scott Holmes and that composer with the beats so nice and crispy, Chris Zabriskie.

Nick Capodice: [00:17:27] You like political ephemera and deeper dives into these topics. Don't you? Please join our biweekly newsletter, Extra Credit. It's snappy. It's fun. It's at civics101podcast.org.

Hannah McCarthy: [00:17:38] Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

Nick Capodice: [00:17:50] Oh, come on, do you think I'm not going to put this in here, the greatest debate zinger of all time, we referenced it in the episode, but [00:18:00] you just got to hear it. 1988 vice presidential debate between Dan Quayle and Lloyd Bentsen.

Dan Quayle: [00:18:06] I have as much experience in the Congress as Jack Kennedy did when he sought the presidency. I will be prepared to deal with the people and the Bush administration, that unfortunate event, whatever occur.

[00:18:21] Senator Bentsen?

Lloyd Bentsen: [00:18:24] Senator, I served with Jack Kennedy. I knew Jack Kennedy. Jack Kennedy was a friend of mine. Senator, you're no Jack Kennedy.

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Made possible in part by the Corporation for Public Broadcasting.

Freedom of the Press: Part 1

Note: There is a more recent, updated version of this episode - check our episodes page!

The only working-class job enshrined in the Bill of Rights, a free press is essential to the health of the democracy. The citizens deserve to know what’s going on, so the framers made sure that news could be printed and information disseminated. But how does the press actually do that? Are they upholding their end of the bargain? What does the best version of the press and the news look like?

Helping us report this one out are Melissa Wasser, Michael Luo and Erin Coyle.

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TRANSCRIPT

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

Civics 101

Freedom of the Press: Part 1

Archival from case: [00:00:01] The case, of course, raises important.

[00:00:05] Difficult problems about the constitutional right of free speech and free press.

Hannah McCarthy: [00:00:15] June 13th, 1971, New York Times subscribers wake up to a story about U.S. entanglement in Vietnam. Now, at this point, we've been involved in the Vietnam War for about a decade.

[00:00:27] It was the first televised war, the first time Americans could witness the violence in real time.

Archival from Vietnam War: [00:00:33] Someone dead over there, Sergeant.

[00:00:35] Where? Hit in the crater, sir. This is the worst way to go, everyone agrees.

Hannah McCarthy: [00:00:42] And this New York Times article reveals that the Pentagon has done a study into three decades worth of U.S. involvement with Vietnam.

Archival from case: [00:00:49] On Monday, the attorney general sent a telegram to The New York Times asking them to stop and to return the document. The New York Times refused.

Nick Capodice: [00:00:59] Oh, [00:01:00] the Pentagon Papers.

Hannah McCarthy: [00:01:01] Yeah. The infamous Pentagon Papers, which revealed that the executive branch had lied to both Congress and the American people about the extent of its involvement in Southeast Asia.

[00:01:13] The report was leaked in The New York Times, wrote about it and published some of its contents.

[00:01:18] The attorney general is like, you can't do that. You have to give those papers back and stop writing about them on time said no.

Archival from case: [00:01:25] And on Tuesday, the United States uh started this suit.

Hannah McCarthy: [00:01:31] You're listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:33] I'm Nick Capodice.

Hannah McCarthy: [00:01:34] And today we are talking about the civilian job that was so important to our framers, they enshrined it in the Bill of Rights, the free press, the very thing that hung in the balance of this Pentagon Papers case.

Nick Capodice: [00:01:48] Hold on before we take a step further. And maybe this is glaringly obvious to everyone, but what is the press?

Hannah McCarthy: [00:01:56] The press is a little hard to define these days, [00:02:00] in part because anyone can publish or broadcast anything online. But ideally, the press are people who seek out research and verify the truth and then share that truth with others, people who work for newspapers, radio stations, magazines and television networks, people who learn as much as possible about a subject and then pass all of that information on to news consumers. So those are, you know, readers, listeners and viewers who want information about the country.

Nick Capodice: [00:02:33] Ok, take me back to the Pentagon Papers.

Hannah McCarthy: [00:02:36] All right. The New York Times says, no, we are not giving these papers up and we are going to keep writing about them. It is our First Amendment right.

[00:02:44] This case went from district court to the Supreme Court in 12 days.

Nick Capodice: [00:02:49] What was the United States arguing in the case?

Archival from case: [00:02:52] On the claim, as I understand it, that the disclosure of this information would result in an immediate grave threat [00:03:00] to the security of the United States. However, it was acquired and however it's classified.

[00:03:05] Yes, Mr. Justice.

Nick Capodice: [00:03:06] An immediate grave threat to the security of the United States.

[00:03:10] That is something I feel like we hear a lot when it comes to executive privilege, that the president can keep certain conversations and events private because they're protecting national security.

Hannah McCarthy: [00:03:21] Which is exactly what the president was claiming in this case.

Melissa Wasser: [00:03:25] President Nixon claimed that he had executive authority to basically force the Times to not publish this classified information. And so the court had to kind of wrestle with the question of whether the constitutional freedom of the press by the First Amendment was less of a need than the need of President Nixon in the executive branch to maintain secrecy.

Hannah McCarthy: [00:03:53] This is Melissa Wasser.

Melissa Wasser: [00:03:54] I am a policy analyst for the Reporters Committee for Freedom of the Press.

Hannah McCarthy: [00:03:58] Nixon claims he can [00:04:00] basically suspend the Times' his First Amendment right to freedom of the press.

Melissa Wasser: [00:04:05] And that dealt with what's called a prior restraint.

[00:04:09] And so basically, the court said if you want to exercise a prior restraint on information, you want to stop it before it comes out. If you want to exercise that prior restraint, you have to make sure that there's evidence that you show that by publishing that information would cause a grave and irreparable danger.

Nick Capodice: [00:04:30] Prior restraint, by the way, means preventing somebody from publishing or saying something. So in this case, preventing The New York Times from continuing to publish about the Pentagon Papers. And also, I want to point out that grave and irreparable danger, it's not anywhere in the Constitution. That idea comes from Schenck v United States, a 1919 Supreme Court case that established that First Amendment rights could be restrained, but only and this is a big but only if their expression resulted in a, quote, clear [00:05:00] and present danger to the country.

Hannah McCarthy: [00:05:03] And in this case, New York Times, the United States, the court ruled that it was on the Nixon administration to show strong evidence of that clear and present danger.

[00:05:14] And that it had not sufficiently done so.

Melissa Wasser: [00:05:18] And so at least in that case, the Supreme Court held that The New York Times had the right to print the materials, and that's how we got the Pentagon Papers out into the world.

Interview with NYT post-case: [00:05:28] Well, my reaction was very simply one of joy, one of delight, and one of the now we'll go back to business as normal

[00:05:37] at the Times.

Hannah McCarthy: [00:05:40] The important thing to take from this case is that the Supreme Court really came at it from a strong defense of the freedom of the press clause like they can. I just have you read this quote from Justice Hugo Black's opinion?

Nick Capodice: [00:05:53] Sure let me try my best Hugo Black here...

[00:05:56] The press was to serve the governed, not the governors. The [00:06:00] government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bear the secrets of government and inform the people.

[00:06:14] So Justice Black makes no buts about it does he, the press needs to be protected.

Hannah McCarthy: [00:06:18] And he gives us the reason why, he says it right there in the opinion, the press was protected to expose the secrets of government and inform the people. If you think about the checks and balances that keep everybody honest and on track in U.S. government, the press acts as this additional check from the outside.

Melissa Wasser: [00:06:39] It's up to the press to be that accountability measure to keep the government transparent and make sure that people are always aware of what the government does. And so, I mean, the press is so vitally important, especially today, when there's been a lot of protests around racial justice. There's [00:07:00] been a full pandemic that we're currently living and working in. And people want information. People want to know what Congress does and how that affects them, especially when it comes to additional unemployment benefits or, you know, the stimulus check in the first round of the Cares Act, you know, people were really concerned.

Hannah McCarthy: [00:07:19] We know what we know about the daily workings of government because reporters ask questions, they investigate. They track bills and budgets. They keep a finger on the pulse of government, and then they pass it on to the people.

Nick Capodice: [00:07:34] I think we should point out to Hannah that a good journalist or news organization doesn't just hear about something and pass it on. They do their research. They make sure it's true before they share it. And if they can't verify it, they don't share it. And if it doesn't serve their audience, they don't put it out there.

Hannah McCarthy: [00:07:53] Yeah, that's one important thing about the Pentagon Papers to The New York Times spent weeks reading [00:08:00] that report before they decided what were the most necessary and responsible pieces of information to share with the public. They didn't just release the whole thing without context at a much lower stakes level. When I was making this episode, I didn't just speak with people and share what they said. I researched freedom of the press before and after these interviews. I even researched what our guests talked about to make sure that I could talk about it in a way that made sense. And I fact checked.

[00:08:30] And this episode went through multiple rounds of editing before it went out into the world,

Nick Capodice: [00:08:34] Because the whole point of journalism ideally is that it's serving the people. And again, I say ideally because a lot of the information that's out there is not researched, it's not fact checked or edited, but in a government that's supposed to be by and for the people, access to true information about the government is a necessity.

[00:08:54] Thus, the freedom of the press clause.

Hannah McCarthy: [00:08:57] Which is just sitting there in the middle of the First [00:09:00] Amendment right, it goes, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. The press both have a First Amendment right and disseminate the information that allows us to exercise our First Amendment rights before we go any further.

Nick Capodice: [00:09:31] And I think we should point out that you and I are beholden to this.

[00:09:37] We are members of the press, and it's not just about rights, it's about responsibility. We are supposed to find and tell the truth so people who listen to us know the truth.

Michael Luo: [00:09:50] So. So the Hutchins' Commission report is kind of considered responsible for the idea of social responsibility as [00:10:00] a notion in the press.

Hannah McCarthy: [00:10:02] This is Michael Luo.

[00:10:03] I'm the editor of newyorker.com, which means I run the online editorial operation of The New Yorker. And when I can, I try to write. Usually about politics and media.

Hannah McCarthy: [00:10:18] Michael recently wrote about this thing called the Hutchins' Commission.

Michael Luo: [00:10:21] Which was a group that met in the 1940s and produced this little book called A Free and Responsible Press. And one of the things that they talked about in the book that I think is a good summary of the importance of the press and democracy is it talks about how a free society depends on the consumption of ideas and the press is an essential component of that traffic of ideas.

Hannah McCarthy: [00:10:50] Now, this is a moment in history where publishers were huge, powerful entities and many members of the public viewed the press as self-interested [00:11:00] and corporate, you know, just trying to commercialize and get bigger. And in the 1940s, fascism was booming in Europe and Americans feared that it could infiltrate the U.S.. So you've got this existential threat and mistrust of the information being spread to the American public. So the publisher of Time and Life Magazines commissioned this inquiry into how the media can best serve democracy. This group gets together to figure out whether the press is doing its job of keeping everyone informed in order to keep democracy alive.

Michael Luo: [00:11:35] They kind of laid out a bunch of key functions of the press, things like providing a daily accurate account of the of the day's events, providing a forum for common discussion, being accessible to everyone, providing a representative picture of society. And just across the board on all of these things, [00:12:00] they were just saying that the press fell short.

Nick Capodice: [00:12:03] That doesn't sound too dissimilar to today. People are worried now about democracy being threatened and people are dissatisfied with the press, which is part of the reason why Michael wrote about this 1940s report today in 2020.

[00:12:16] And a lot of what the commission found wrong with the press are things that we still hear today.

Michael Luo: [00:12:22] A lot of the things actually they found sound familiar today, like they blame sort of the rush to scoops and sort of novelty, they called it. They blamed business interests. They blamed being the press, being vulnerable to manipulation and things like that.

Hannah McCarthy: [00:12:38] At the end of the book, the commission offered some solutions and the focus was on social responsibility. The press had a lot of power, so they had to wield that properly, give citizens the information they needed to foster a healthy, strong democracy.

Michael Luo: [00:12:54] The ultimate conclusion and the one that the one that I think is [00:13:00] still really relevant today was that it called upon the press to that the burden was upon the press itself to fix itself and to improve itself.

Nick Capodice: [00:13:08] I'm always down with self-improvement, but how does the press fix itself, especially when good journalism is often drowned out by a flood of misinformation?

Michael Luo: [00:13:18] You know, we're kind of swimming in information. We're constantly encountering information. A lot of people actually do not on social media, not go on looking for news, but they kind of bump into it. And the question is like, how much news can you actually absorb like that?

Hannah McCarthy: [00:13:33] Michael has thought a lot about what would help us be more informed citizens. And for him, one potential answer is journalism with more context that goes more in-depth and that is consumed more slowly, which is tricky. Right, because how do you convince people to basically eat their vegetables when there's so much candy out there? How do you convince news organizations to grow vegetables when candy is [00:14:00] the thing that sells and selling is what supports the news?

Nick Capodice: [00:14:05] First off, roasting vegetables instead of boiling them. That's a good start, but really making them more enticing.

Hannah McCarthy: [00:14:14] What I find really fascinating about all of this is that our understanding of freedom of the press and how it's tangled up in social responsibility, that is something that happened over centuries of journalism. We can't know for sure what the framers meant. Right. But we created a very weighty freedom and obligation out of that clause in the Bill of Rights. I want to introduce you to one more guest here.

Erin Coyle: [00:14:37] Hello, I'm Erin Coyle. I am an associate professor at Temple University in Philadelphia. And I teach journalism, law and ethics and journalism, writing and reporting. My research focuses on freedom of expression.

Hannah McCarthy: [00:14:54] I asked Erin, you know, we know, for example, what Justice Hugo Black thinks [00:15:00] the framers meant by not abridging the freedom of the press. But what did the framers say they meant?

Erin Coyle: [00:15:05] They were probably thinking more about the word liberty and freedom at that time. From what my reading shows. And the press was different then than it is now. So scholarship really indicates that at that time they were thinking about printers and there was a history of having government censorship of printers, meaning that to be able to print and distribute information, people would have to get permission from some government authority to be able to print and distribute the information.

Hannah McCarthy: [00:15:47] And that, of course, is an easy way to control what citizens are allowed to learn. If the government can say something cannot be printed, then it cannot be distributed. And that means any number of things [00:16:00] will never come to be known by the public.

Nick Capodice: [00:16:02] It was actually a pretty vulnerable choice for the framers to make when you think about it, preventing ostensibly for all time the people in charge from limiting what gets said about them. But then again, those same men had recently printed an attack on their own government by way of the Declaration of Independence when they wrote this amendment.

[00:16:20] So our nation really began with a form of press freedom.

Hannah McCarthy: [00:16:24] That's both really important and pretty basic freedom of the press and journalism means a lot more today. It means journalists are protected from certain retaliation. If they report on the government, it means a reporter can request information from and about the executive branch. It even means that a news team should be allowed to determine what they report on without the business interests of their organization getting in the way. I asked Erin where all of that came from.

Erin Coyle: [00:16:56] So some of this comes from journalists. The notion of [00:17:00] independence and financial independence comes from journalists. We can't have something like that coming from the government because of the First Amendment. But the discussion of press freedom is really different today than it could have been in the eighteen hundreds. For one thing, the Supreme Court really addressed press freedom as something that could be applied to protect journalists against state laws as well as federal laws.

[00:17:35] For the first time in the early 1960s.

Nick Capodice: [00:17:38] It seems like, as freedom of the press has been strengthened in the courts, so too has the responsibility of the press to exercise itself responsibly. Like, if you're demanding access and protection, you have to do it in part on the basis of serving democracy.

Hannah McCarthy: [00:17:58] I talked earlier about journalism [00:18:00] being about not simply publishing or sharing a piece of information, but about sitting with that information, making judgment calls, about whether it's a helpful, safe thing to share journalism, freedom of the press, social responsibility to support an informed citizenry. It's not just about what we do print or broadcast.

Erin Coyle: [00:18:22] It's also about what we don't is one point that isn't often talked about with New York Times versus the United States.

[00:18:32] Well, journalists from The New York Times took weeks to carefully go through those documents and took their time to find out are these valid? Is this real information? And they didn't just put everything online like we would today. They didn't print an entire classified report. They [00:19:00] selected the information that was most important for information. No, journalists make really important decisions and we trust journalists to be working for the public's interest. And there are times that means that we have to consider people's safety.

Hannah McCarthy: [00:19:25] I think my biggest takeaway from all of these discussions is that the press is powerful.

[00:19:30] The framers made the press powerful by giving it the freedom to print without requiring permission. And the press and the courts over time made the press even more powerful. And such as that, power grew, so did our responsibility.

[00:19:45] We taught our readers, listeners and viewers to expect certain things from us. So what does that mean in an era of widespread protest, fake news and a worldwide pandemic? [00:20:00] Check out part two of freedom of the press to see if I can rise to that responsibility.

[00:20:19] This episode of Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jacqui Fulton. Erika Janik exercises a lot of prior restraint when it comes to dealing with our shenanigans. We have long-planned to find a way to answer listener questions directly, and we have finally done it. We've got a new thing called Ask Civics 101. It's broadcast here in New Hampshire every Monday and goes into our podcast feed every Friday. It's simple, you email or tweet us a question and we find the answers and make you an episode. We're all just trying to figure out how things work around here. Civics 101 is supported in part by the [00:21:00] 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.

Ask Civics 101: Why Is the American Campaign Season so Long?

In the United States, campaign season begins long before primaries and caucuses, and ages before the general election. In the past few presidential elections, some people announced their candidacy nearly two years before election day. And listener Charlie wrote in to ask, "Might you consider discussing why the election ‘season’ takes approximately two years?" Indeed we might, Charlie! And we did! Here comes another installment of Ask Civics 101 with NHPR broadcast host Peter Biello where we tackle why, exactly, the American election season is so long.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: Why Do We Have the Electoral College?

The Electoral College was created as a bulwark, a barrier between the people and the vote for the president. The founders feared giving people too much power so they created a system that put a check on the people's vote by "men of virtue" (and they were all men at the time). It is because of the Electoral College that a person can win the presidency even if they lose the popular vote — but how does it work, exactly?

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Made possible in part by the Corporation for Public Broadcasting.

Introducing Ask Civics 101: What Are We?

We get a lot of questions here at the show. While we try to answer them in some form or another with our full-length episodes, we’ve always wanted a way to answer you directly. So we launched Ask Civics 101! Send us your questions and we’ll get to the bottom of things for you.

Our inaugural episode addresses a question (and critique) that we’ve received for years here at the show. It's an oft-lobbed claim, "We're not a democracy, we're a republic." And it's half true! We are a republic. But we're also a democracy.

What does that actually mean, and why is the question important? For our first-ever Ask Civics 101, we're answering this not-so-straightforward question: what are we?

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Made possible in part by the Corporation for Public Broadcasting.

The Declaration Revisited: The Declaration of Sentiments

The Declaration of Independence called George III a tyrant. And in 1848, a group of women’s rights activists mirrored our founding document to accuse men of the same crime. Today in our final revisit to the Declaration of Independence, we explore the Declaration of Sentiments, the document at the heart of the women’s suffrage movement.

Our guest is Laura Free, host of the podcast Amended and professor at Hobart and William Smith Colleges.

In this episode students will learn about: Elizabeth Cady Stanton, Lucretia Mott, Seneca Falls, grievances in the DoS vs the DoI, the 19th amendment, and lack of equality among all women.

Episode Resources

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Text of the Declaration of Sentiments from Women’s Rights National Historic Park

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Episode Segments

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Transcript

Declaration of Sentiments

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

[00:00:04] The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.

[00:00:17] To prove this, let facts be submitted to a candid world.

Nick Capodice: [00:00:26] One of the things that I like about the Declaration of Independence, though, the more we visited, the more problematic things we find in it. But one thing I can say I like about it is its directness.

Hannah McCarthy: [00:00:36] Yeah, it does a lot in only 1300 words.

Nick Capodice: [00:00:39] It's an argument. It's a solid argument in four parts. First, the preamble saying what the document is, then a statement of human rights, and the claim that when a government doesn't give you those rights, it's your job to alter or abolish it. And then we got the grievances and finally the action: because of the above, we're ending this relationship.

Nick Capodice: [00:00:58] And throughout this series, we [00:01:00] have talked about the immediate criticism and accusations of hypocrisy in it. And yet it lives on. It lives on as this core of our American identity. So what if you didn't just criticize it or call it to task? What if you used its power of argument as a tool to fight inequality?

Laura Free: [00:01:20] Right. In 1848 in America, probably every schoolchild was forced to memorize this document. Everyone knew the words. They all knew the rhythm, the cadence. It would have been a deeply familiar text to them.

Nick Capodice: [00:01:35] I'm Nick Capodice

Hannah McCarthy: [00:01:36] I'm Hannah McCarthy.

Nick Capodice: [00:01:37] And this is Civics 101. Today is our third and final revisit to the Declaration of Independence, and we're exploring the Declaration of Sentiments, the document at the heart of the women's rights movement. And we spoke with Laura Free. She's a professor at Hobart and William Smith Colleges and she's also the host of Amended, a new wonderful podcast about the myths and realities of the long fight for women's suffrage.

Hannah McCarthy: [00:01:59] So we should [00:02:00] start with what the Declaration of Sentiments actually is.

Laura Free: [00:02:03] Yeah, so the Declaration of Sentiments is essentially the central manifesto of the early women's rights movement. It was a text that was created by a group of women, one of whom was Elizabeth Cady Stanton in Seneca Falls in 1848 in upstate New York.

Nick Capodice: [00:02:23] Elizabeth Cady Stanton was an activist and one of the first leaders of the women's rights movement. She helped organize the Seneca Falls convention and wrote the Declaration of Sentiments, which was an extremely influential document at the time. Judith Welman, she's a historian of the convention at Seneca Falls, she called it the single most important factor in spreading news of the women's rights movement around the country. Quick side note. When Laura was referencing the Declaration of Sentiments in the interview, she was reading from this massive reproduction of it.

Laura Free: [00:02:55] I have this in front of me and you're going to laugh because this was a gift to me [00:03:00] from a student. And for Halloween, when my my kid was seven, maybe, she wanted to be Eliza-witch Cady Stanton. So she wore a witch hat and with the declaration of sentiments around her neck,

Hannah McCarthy: [00:03:13] That's adorable. Of course, if you're the daughter of Laura Free that's how you're gonna go. But why 1848? And what makes them think that this is the way to go?

Nick Capodice: [00:03:24] Well, starting in the early 1800s, a small number of women begin to group up and push back against societal restrictions against them. And in 1840, Stanton goes to London for an antislavery convention. And on the boat ride back, she befriends abolitionist activist and Quaker Lucretia Coffin Mott and the two of them on the boat start to plan their own convention, one to further the cause of women's rights. In 1848, Mott and others put an announcement in the Seneca County Courier, calling a convention to discuss the social, [00:04:00] civil and religious conditions and rights of women.

Laura Free: [00:04:03] And so that goes out just to sort of the locals. And so they sit around and they start talking and they're like, well, what are we going to do at this meeting? We've never had a women's rights meeting before. Or maybe we should, you know, have something that people should talk about and maybe even vote on. Stanton herself claims credit for this, but it's not clear that that she's the one who came up with the idea. But someone said, you know what, if we used the Declaration of Independence as a model, what if that was our guide? And I'm sure everyone went, oh, yeah. So Stanton does do a lot of the work of making of writing this. And so she she takes the original declaration. She goes home and she says, OK, let's let's let's fix this. Right. Let's fix this for women. And, you know, the of course, the best line is that is that the first one of the second [00:05:00] paragraph where she says, we hold these truths to be self-evident, that all men and women are created equal. Right. Like that right there would have signaled to everyone who saw it, who listened to it, who heard it read be read out loud. Whoa, wait, something's different. Something's different here. And perhaps, you know, at that point, a lot of people would have accepted the term men to. All humans without thinking about it, right, it was it was often a term used to mean people generally, but the fact that she put in women, there was a wake up call in some ways for for the people listening.

Nick Capodice: [00:05:43] The original declaration says all men are created equal. And as we've said in several episodes, women, people of color, enslaved Americans, Native Americans and white non landowners were not included in the declaration of sentiments is even shorter than the Declaration [00:06:00] of Independence. It's under a thousand words, but it uses that same powerful four part argument.

Laura Free: [00:06:06] And the other thing that Stanton does in the Declaration of Sentiments that really parallels well to the original. As you know, the whole declaration is in some ways a wake up letter to the king, right. Like Yo King, here's what you've done. And Stanton takes that format and she applies it to men and women. So she's like, yo, men, here's what you've done that have have made all of the women in America unequal. She's, you know, calling them out here.

Hannah McCarthy: [00:06:32] And it's an exhaustive list. It's got 16 grievances against "He" the first of which is he has not ever permitted her to exercise her inalienable right to the elective franchise.

Nick Capodice: [00:06:46] He has never permitted her to vote. And that one, that's the first one. It was the most controversial at the time.

Laura Free: [00:06:53] Stanton read them this draft version of the Declaration of Sentiments. And Lucretia Mott says to her in her in her lovely [00:07:00] Quaker 19th century language, she says, Lizzy, thee will make us ridiculous. That the right to vote, the demand for the right to vote was so was so radical. It's going to be problematic. Now, there are some issues with that. There are lots of people prior to this moment who had been asking for the right to vote. Right. Women voted in New Jersey until 1807. There were women in colonial Massachusetts that we know who voted. So, you know, it's not it's not completely unheard of, but it was fairly radical. And so when the meeting takes place, everyone all of these ideas are raised and people are like, yeah, yeah, sure, sure. And then they get they get they get to voting rights and the convention. You can you can kind of imagine maybe like took a kind of a deep breath, like, OK, what are we gonna do with this one. And and Stanton herself, it was her first time speaking in public and she professed to being very nervous and felt like she didn't do a good job defending defending this provision. And so she turns [00:08:00] to Frederick Douglass.

Nick Capodice: [00:08:01] Douglass, who escaped slavery just 10 years earlier, became one of the most influential abolitionists in American history. He gave speeches around the world advocating for equality and ending slavery, and he attended the convention in Seneca Falls.

Laura Free: [00:08:15] He says something along the lines of without the ballot. None of these other changes are going to be possible because women have to have sufficient power to make these other things stick, essentially, and that the vote is is the way to do that.

Hannah McCarthy: [00:08:32] I find it really interesting that the question of getting women the right to vote was the most controversial because there are some grievances in there that are quite advanced for the time.

Laura Free: [00:08:42] Yeah, the declaration asks for equal pay, for equal work for women. Right. You know, something that still is not achieved in America today.

Hannah McCarthy: [00:08:51] I mean, equal pay women only earned the right to sue their employers for unequal pay in 2010.

Nick Capodice: [00:08:58] Yeah, and another grievance Stanton [00:09:00] accuses men of playing God.

Laura Free: [00:09:02] You know, the language she used. She says he has usurped the prerogative of Jehovah himself, claiming it as his right to assign for her a sphere of action when that belongs to her conscience and her God. So basically, she's saying men put themselves above God by trying to tell women what they can and can't do. And so in some ways, she's using religion to indict men further for their bad behavior. So it's not just that men tell women what to do. Men are trying to take over and become God. And so that, I think, gives it a degree of of power for her listeners or her or her listeners, her readers or whoever would see this. They they would they maybe would resonate with that and say, wow, nobody should get in between somebody and God.

Hannah McCarthy: [00:09:53] Oh, it's so interesting because that's that's kind of the best bit of the Magna Carta, right. That no one is above God or the law. [00:10:00] Not even the rulers. Not even kings.  Give me just one more grievance.

Nick Capodice: [00:10:04] Oh, you got it. Here's one. He closes against her all the avenues to wealth and distinction, which he considers most honorable to himself as a teacher of theology, medicine or the law. She is not known. Women couldn't become doctors or lawyers, so they weren't permitted to attend medical school or law school. The first woman lawyer Arabella Mansfield was admitted to the Iowa bar in 1869.

Hannah McCarthy: [00:10:31] All right. So there is one grievance. I do think that we need to address the third one, an accusation that I know that Laura and other scholars have explored in their work. And this one says he has withheld her from rights which are given to the most ignorant and degraded men, both natives and foreigners.

Laura Free: [00:10:53] Yeah, yeah. You know, that's the that's the one that's a signal to [00:11:00] me that that the women's rights movement is not going to take up the cause of equality for all people. It's going to argue and and Stanton herself is the flag bearer for this aspect of the movement. But it's going to argue essentially that white women should have the same rights as white men, not necessarily that all people should have should all be equal. Stanton is particularly unhappy at this point, and she becomes increasingly so over the next 20 years that there are men that she believes to be her own personal inferior, who have more power and more rights in American society than she does. And that's that's her signal there about who who she feels that she's better than. And by the 1866 becomes fully blown racist language and arguments. And she's letting her [00:12:00] baggage show here in a way. Right, that that she use she considers herself better than other people. And she's going to put that right front and center of the women's rights movement.

Laura Free: [00:12:16] And nobody really calls her on that bit. You know, they accept they vote on all of the provisions of the declaration and no one says, hey, at least we don't have a record of anyone saying in the meeting, hey, you know, maybe that's not the nicest thing you could be saying here when we're in a movement at a meeting for people who are, you know, looking for equality, let's not also retrench race and class, you know, inequalities in our movement.Yeah. We don't we don't see that.

Hannah McCarthy: [00:12:47] This is something that we cannot separate from the movement. And Stanton, specifically. That these women divorce women's suffrage from other issues of equality. It's the ugly truth that the best known suffragists [00:13:00] actively opposed the 15th Amendment, which gave black American men the right to vote.

Nick Capodice: [00:13:07] Yeah, this document mimics the Declaration of Independence in its words and in its format. But there's one contrast that I wanted to ask Laura about. It's the action, the conclusion, the action in 1776 was. And therefore, because of this, we're done with You England. We're done with the he and all of those grievances.This isn't the case with the Declaration of Sentiments. 68 women signed it, but so did 32 men.

Laura Free: [00:13:34] Most of their the people are these are married people. These are people who live in close relationship with each other.There are men present at the convention. They don't want to get rid of men in the same way that Americans wanted to get rid of the king. They just want men to behave better. They want they want the laws to be framed more equally. They want they want a seat at the table, [00:14:00] essentially. And so in some ways, they're not they're not saying goodbye. They're asking to say hello.

Hannah McCarthy: [00:14:06] As we've revisited the Declaration of Independence and all of these episodes, one theme that struck me again and again was that the declaration has unending reverberations. It's got bad echoes in the case of the anti Native American language that made its way into Supreme Court decisions and good ones. It's used to incite change, to advocate for equality.

Nick Capodice: [00:14:31] Yeah, I asked Laura what the declaration of sentiments can teach us.

Laura Free: [00:14:37] I think what I would point to isn't anything inherent in the declaration or in the movement or in the women's rights movement itself. But is just the persistence, right? This is 1848 when the Declaration of Sentiments is is raised. It's not until 1920 that the 19th Amendment is passed that denies states the right [00:15:00] to discriminate on the basis of sex. But it's not even until the present moment that all women have the right to vote in a secure way. So it takes a really long time to make change in America. And it's so exciting right now to be living through this moment of of profound, hopefully, transformation. But I think it's it's going to be a marathon, not a sprint. And perhaps the women who met in 1848 knew that. Perhaps they did not. I don't know if they understood how long it was going to be before women's equality would be granted, that it's still not even right at this moment. But nevertheless, they persisted. And I think that's the message that I try to carry, is just to keep persisting.

[00:15:54] Rah, rah, rah.

[00:16:02] Well, [00:16:00] that is a wrap, folks, on the Declaration of Sentiments, as well as our whole series on revisiting the declaration, a new civics episode will be out soon. Today's episode is produced by Mina Kennedy Jr. with You Hannah McCarthy and help from Jackie Foltyn.

[00:16:15] Erica Janick is our executive producer.

[00:16:17] And where's the declaration of sentiments around her neck, even when it's not Halloween music in this episode by Made in the Grand Affair Azura and that new twist on an old classic, Chris Zabriskie.

[00:16:27] Every two weeks, Nick and I pore through the lesser known ephemera related to our episodes. The interesting trivia that gets cut from them. And we write about it in Extra Credit, our biweekly newsletter. It's free, it's fun, and we just want you to read it. If you're interested. Check it out at our website, Civics 101.

[00:16:44] Podcast Dog is Begal Button Thankachan right there, Civics 101, supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Birthright Citizenship: US v Wong Kim Ark

Most of us know about birthright citizenship, but not many people have ever heard of Wong Kim Ark and the landmark Supreme Court decision that decided both his fate and the fate of a U.S. immigration policy that endures to this day.

This episode was written and produced by Felix Poon.

Transcript:

Archival: Civics 101 is supported in part by the Corporation for Public Broadcasting.

Felix Poon: Hi, Nick. Hi, Hannah.

Hannah McCarthy: Hey, Felix.

Nick Capodice: Hello, Felix. Listeners, if you don't know who this is, this is Felix Poon. Felix has been an intern with Civics for the last summer and has been a delight to work with. We're very glad you're here today.

Hannah McCarthy: Felix Yeah. And Felix, you are going to guest host today, right?

Felix Poon: I am, because I've got a story for you, and this story starts in 1895. A man named Wong Kim Ark is on a steamship returning to his hometown of San Francisco, [00:00:30] the city where he was born. And when he lands, a customs agent says he can't enter the United States. He says, you're Chinese and there's a Chinese exclusion law, so you can't come in.

Hannah McCarthy: But you said it was his hometown of San Francisco, Right. So are you saying that someone born on U.S. soil was not allowed back into the country?

Felix Poon: That's right. That's what I'm saying. And he wasn't the only one. This was actually pretty common at that time. Customs agents tried to keep as many Chinese Americans out as they [00:01:00] could, but some Chinese Americans sued the U.S. government to be granted entry. Wong came out, sued, and his case went all the way to the Supreme Court. And it's his case that solidifies birthright citizenship. Nowadays, pretty much everybody knows about birthright citizenship, which is anybody born in this country as a U.S. citizen. And that's the law. But not many people have ever heard of Wong Kim Ark and the landmark Supreme Court decision that decided his fate and [00:01:30] the fate of U.S. immigration policy that endures to this day. And that, my friends, is the story I'm going to tell you about today. I'm Felix Poon and this is Civics 101, the podcast refresher course on the basics of how our democracy works. Today, the story of Wong Kim Ark, the man, the landmark Supreme Court case and the legacy of birthright citizenship. Before I tell you about Wong Kim Ark, I need to tell you about the America [00:02:00] that you was born into. Chinese immigrants began arriving in significant numbers in the 1850s. Many came for the gold rush in California. And when the gold rush ended, they found jobs as railroad workers, miners, farmhands, laundry owners and domestics. But hostility towards them had been growing.

Carol Nackenoff: In San Francisco. You have a labor organizer, Denis Kearney, who was agitating that the Chinese were taking white jobs [00:02:30] and and running a Chinese must go campaign.

Felix Poon: This is Carroll Nackenoff, professor of political science at Swarthmore College and coauthor of the forthcoming book American By Birth Wong Kim Ark and the Battle for Citizenship.

Carol Nackenoff: In July of 1877, a mob formed and destroyed $100,000 in Chinese owned property, burning laundries and leaving four dead.

Felix Poon: That's millions of dollars of damage in today's money. That's a lot. But [00:03:00] more importantly, that's lost life and a lost sense of safety and belonging. And this racially motivated violence happened not just in San Francisco, but all along the West Coast, including Seattle, Tacoma and Los Angeles, where more than half the victims were publicly lynched.

Hannah McCarthy: That's horrifying. And I feel like this is a moment in American history that we really don't hear about. At least I didn't learn about in school. Did you, Nick?

Nick Capodice: No, not at all.

Felix Poon: Yeah, I didn't even learn about it until college, and I was kind of shocked to hear about [00:03:30] it, especially like I'd never learned about it before. And this is when Congress began excluding Chinese immigrants. They passed the country's first immigration act, the Page Act, in 1875, barring Chinese women from entering the country. And then in 1882, the Chinese Exclusion Act barred all Chinese people from entering the country. So that's the hostile environment that Wong Kim Ark was born into around 1871 [00:04:00] in San Francisco. He grew up in Chinatown. He was five foot seven tall. His father was Wong Zi Ping, and his mother was Lei Mei. His parents came to the US from Toisan, China, so public record listed them as merchants. But like, what does that actually mean?

Carol Nackenoff: They ran a store that's considered a merchant, which was in the city directory listed in 1879 and 1880 as a butcher and provision for.

Felix Poon: Wong Kim Ark didn't have much formal education. [00:04:30]

Carol Nackenoff: From age 11. He was listed as a cook.

Felix Poon: And that's about all we know about his life in the US. There are records of four trips he took to China. The first was in 1889 with his parents. He gets married on this trip to a woman named Yishai from his ancestral town of toI san. His second trip is in 1894 to 1895 to visit his wife and family, and it's coming back to San Francisco on the second trip that the customs agent says he can't enter the United [00:05:00] States.

Bethany Berger: And so he was detained. And he said, hey, I was born here. I'm a citizen. You have to let me in.

Felix Poon: This is Bethany Berger, professor of law at the University of Connecticut.

Bethany Berger: Not only did he say that he had.. He had papers with him to prove that. And the customs officer says, I don't care. Chinese cannot become citizens by being born in the United States.

Felix Poon: One of those papers is a notarized letter. We, the undersigned, do hereby certify [00:05:30] that the said Wong Kim Ark is well known to us a witness statement.

Carol Nackenoff: Anybody else traveling, a white American traveling abroad didn't have to have anything in the way of documents.

Felix Poon: This is Carol Nackenoff again.

Carol Nackenoff: And so the Chinese had a far more rigorous documentation regime than anybody else. They had to have witnesses that attested to where they lived and that they knew them.

Felix Poon: These witnesses [00:06:00] couldn't be Chinese. They had to be white.

Nick Capodice: Wait, was that written in? Was that was that a stipulation of it? Like they had to be white?

Felix Poon: I don't think they said it was like a written requirement. Like you must make sure you get a white person. It was just kind of like an unspoken rule that they wouldn't trust Chinese people. And so it was just kind of like they can't be Chinese in practice. It was find a white person, right?

Carol Nackenoff: And they would go through an interview, get this certificate that allowed them to return, go and return. [00:06:30] And it was a single use document.

Felix Poon: Even with this documentation in hand, the customs agent denies Wong K mark entry and so basically he has nowhere to go. So he gets back on the boat.

Hannah McCarthy: Seriously, did he have to go back to China?

Felix Poon: We'll get to that part. But first I have to tell you about those who came before him and what happened to them. There are a lot of Chinese men traveling back and forth to visit family in China at this time, and many are getting denied reentry to the United States. Some of them just give up [00:07:00] and make the trip back to China, a trip that takes 33 days, according to an old newspaper clipping. But others fought their detentions in court with the help of the six companies.

Nick Capodice: The six companies. What's that?

Felix Poon: Well, companies is probably a misnomer. There were really six prominent Chinese associations in San Francisco, and they came together as one to provide social support, but also to provide legal support to Chinese Americans. Here's Bethany Berger.

Bethany Berger: Again. In the first. Years of [00:07:30] the exclusion laws.They brought 7000 cases challenging Chinese exclusion. And they were so successful in doing this that Congress and the customs officials kept trying to amend the laws to make it harder for them to win these cases.

Hannah McCarthy: That's actually very cool.

Felix Poon: So the six companies are there for Wong Kim Ark. They file for habeas [00:08:00] corpus.

Nick Capodice: Habeas corpus, that little Latin phrase. That means bring the unlawfully detained person before the court.

Felix Poon: Yep, that's it. It's a right to a trial. Meanwhile, Wong Clark is still off the coast of San Francisco on a ship. And that ship is about to sail back to China.

Bethany Berger: So he's put onto another ship, and then that ship wants to go back and he's put on to another ship. And so this is a period. Of months. In which he's confined, looking over. At. [00:08:30]His hometown, but unable to set foot there.

Nick Capodice: So is he granted habeas?

Felix Poon: They do grant him habeas. But what's interesting here is that the judge actually agrees in principle with the U.S. government that Wonky Mark is not a citizen. But he says he has to go by legal precedent that was set by earlier court cases. And so he rules that Wong Clark is a U.S. citizen because of the citizenship clause of the 14th Amendment.

Hannah McCarthy: So this judge makes explicitly [00:09:00] clear that he has a racist idea here and that he is only making this decision based on precedents. He basically says this is against my better judgment, but I'm going to do this anyway. And so just as a reminder, that citizenship clause of the 14th Amendment says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. So [00:09:30] Felix Wong, Kim Ark won?

Felix Poon: Yeah, he won. I mean, he was still unlawfully detained on three different boats for five months, but at least he won his court case.

Nick Capodice: So is that it, Felix Like, is this happily ever after for Wong Kim Ark?

Felix Poon: No, not quite.

Julie Novkov: The government immediately appeals, so they take it all the way up to [00:10:00] the US Supreme Court.

Felix Poon: This is Julie Novikov. She's a professor of political science at the University at Albany and coauthor with Carroll on their book, American by Birth. Wong Kim Ark in the Battle for Citizenship.

Julie Novkov: The majority opinion is written by Justice Horace Gray, and his response is that if people are in the United States and they're following the laws of the United States and basically they're not in some sort of special category like that of a diplomat, they [00:10:30] are living under the sovereignty of the United States and therefore, children who are born to them in the United States are born under that sovereign power. And therefore, according to common law principles, going back to England, they are entitled to citizenship on the basis of the 14th Amendment.

Felix Poon: In writing the majority opinion, Justice [00:11:00] Gray did reaffirm that there are exceptions to the citizenship clause. Diplomats are not subject to the jurisdiction of the US. If they commit a crime, they don't face the justice system the same way that we do. So there are children that are born here, not US citizens, children born here of a foreign occupying force. It hasn't happened yet, knock on wood. But if it did happen. Not US citizens. So what the majority opinion boils down to is that Wong Kim Ark does not fall into any of these exempt [00:11:30] categories. So he is indeed a US citizen.

Nick Capodice: But hold on. If this case was decided the other way, wouldn't you then have to revoke the citizenship of millions of children born to European immigrants?

Felix Poon: I mean, basically and Justice Gray wrote this in his opinion that to deny Kim Ark his citizenship would be to, quote, deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered [00:12:00] and treated as citizens of the United States. This ruling is a big deal. It solidifies a path to citizenship for all immigrants that is based on the 14th Amendment. But then there were some unintended consequences in the aftermath of the ruling.

Nick Capodice: Like what?

Felix Poon: So there's this phenomenon of paper sons.

Nick Capodice: Paper sons actually know about these, do you Hannah?

Hannah McCarthy: I don't. I would imagine it's someone claiming someone as their their son [00:12:30] or your daughter, but it would be son in this case.

Nick Capodice: So since the only way you could be a legal Chinese immigrant to the United States was if you were a family member of somebody who had been born here, a child of somebody who had been born here. So you have all these people claiming. Right. So all new Chinese immigrants to the U.S. are claiming that they are the children of people already here on paper, therefore paper sons.

Julie Novkov: Some of these paper sons were maybe not necessarily the sons of citizens, but they were close relatives, maybe they were brothers, [00:13:00] maybe they were nephews. But because there's an awareness among immigration officials that that this is happening, they become far, far more suspicious. What evolves out of this is that you you wind up with kind of a cat and mouse game between Chinese who are trying to get into the United States and immigration officials who are trying to keep as many out as possible.

Felix Poon: And exclusion laws only [00:13:30] get worse.

Julie Novkov: By the time we get to 1924. Legislation is basically excluding almost all Asian immigration and denying immigrants from Asia any possibility of gaining citizenship. This actually goes as far in the 1920s as denying citizenship to Japanese who had served in World War One. [00:14:00]

Archival: My fellow countrymen. We have called the Congress here this afternoon not only to mark a very historic occasion, but to settle a very old issue that is in dispute.

Felix Poon: It's not until the Immigration and Nationality Act of 1965 that immigration bans and quotas are completely lifted.

Archival: With my signature. This system is abolished. [00:14:30]

Felix Poon: And finally, you have greater numbers of Asians immigrating to the US.

Archival: Never again shatter the gate to the American nation.

Felix Poon: Soon after that, public scrutiny over immigration shifts and beginning around the 1980s, you have some people using the term birthright citizenship pejoratively against the children of undocumented [00:15:00] Mexican Americans. They call for doing away with birthright citizenship and immigration.

Archival: President Trump is setting to challenge a 150 year old constitutional standard that anyone born in America is an American citizen.

Hannah McCarthy: The President. But the president can't just unilaterally do away with something that was decided in the Supreme Court, right? I mean, the Wonka marque ruling means that they can't just get rid of birthright citizenship.

Felix Poon: Well, some would argue that the Wong Kim Ark ruling doesn't [00:15:30] apply here because Wonka Marks parents were here legally while undocumented immigrants are here illegally.

Nick Capodice: So what did the people you talked to think about that?

Felix Poon: They don't think this argument would be very convincing in court. Basically, they say that there was no distinction back then between documented and undocumented. If you made it to U.S. shores, you were a citizen. But given the exclusion laws, it was clear the government wanted to exclude Chinese people from this country. [00:16:00] So they're in consensus that the Wong Kim Mark ruling does apply, and therefore the only way to do away with birthright citizenship is to amend the Constitution, which, by the way, is not an easy process. It would need to pass through both the House and the Senate with two thirds majorities, and then it needs to be approved by three fourths of state legislatures. So birthright citizenship is probably here to stay. And our guests all agreed that's a good thing. Here's Julie Novikov.

Julie Novkov: Well, I think birthright citizenship is [00:16:30] important simply because it provides an additional layer of protection for some of the most vulnerable residents of our country. And it also, I think, telegraphs a message of equality of of being born in America. And regardless of where you're coming from or what your situation is, there's a kind of moral [00:17:00] valence to birthright citizenship that is entangled in a productive and good way with American ideals.

Hannah McCarthy: Felix I'm so curious what happened in the end to Wong Kim Ark.

Felix Poon: Well, we don't really know much beyond his third and fourth trips to China to visit his family. Remember, his wife was back in China in that fourth trip in 1931. Was Wong [00:17:30] Mark's last. He didn't come back to the US and we know that he died sometime in the 1940s.

Nick Capodice: So do you know if, like, he died without ever knowing what his legacy was?

Felix Poon: That's a really good question, Nick, and I think the best person to answer that is Erica Lee. She's a professor of American history at the University of Minnesota. She said the reason why he wouldn't have known is because of his lived experience. Remember those notarized witness statements Wong Kim Ark had to get Erika went to see the originals [00:18:00] at the National Archives at San Francisco, and she saw that by his third and fourth trips to China, the U.S. government standardized them into a templated form.

Erica Lee: It was called application of alleged American citizen of the Chinese race for pre investigation of status. This is a government form that means that someone typeset it, someone put it through the printer, someone ordered thousands of copies to be printed and then sent to immigration offices around the country having [00:18:30] that. That term alleged citizen shows just how deeply rooted and institutionalized this racism was. So. So no matter if you won the Supreme Court case. On a daily basis, you're still going to be suspect. I also remember flipping through the file and wondering, where's the copy of the Supreme Court case? Like, shouldn't this be like in Monopoly? Should this be or get out of jail free [00:19:00] card? Like, shouldn't he have just, like, gotten walked off the ship? Hey, it's one mark, you know. Come on in. That didn't happen.

Hannah McCarthy: Felix This is something that we encounter a lot when it comes to people who win their Supreme Court cases in the names of civil rights, and that's that. It just takes so long for whatever it is they've won to be implemented across the United States, right? That that that person ostensibly the beneficiary isn't practically [00:19:30] the beneficiary. They don't get to reap the reward of that decision. And it sounds like that's how it went down for Wong Kim Ark, right?

Felix Poon: Oh, definitely. But there is one last thing to this story. What this landmark ruling does do for Wong Kim Ark is that it allows his sons to immigrate to the US and become naturalized citizens. So guess what? Wong Kim Ark has descendants here in the US, and I just think that's amazing because the US government tried so hard to prevent [00:20:00] Chinese immigrants from establishing families here, but here they are, the family of Wong Kim Ark.

Hannah McCarthy: Mark Felix Does this end up being this proud family story that gets passed down?

Felix Poon: Actually, no. Erica says nobody in the family really knew about it until 1998. There was a 100 year anniversary celebration in San Francisco, and Wong Kim Ark's youngest son just happened to see it reported in the Chinese language newspaper.

Erica Lee: And this is where for the first time, those of us who had [00:20:30] researched Wong Kim Mark realized that his son was still living in San Francisco and that when the reporter interviewed him, he expressed a great deal of surprise that he had never heard his father talk about his struggle. He had no recollection that this [00:21:00] Supreme Court case and the right of birthright citizenship was based on his father's efforts. And it was just such a, I think, tragedy of how we choose which stories, which struggles get remembered and which ones we allow to get forgotten. It was a double tragedy, you know, not just for the Wong family, [00:21:30] but for all of us who care about our our country. One would think that when you win a Supreme Court case and that it establishes such a broad base of citizenship rights, the right of birthright citizenship, that your name would be well known, celebrated, that there would be streets named after you, that there [00:22:00] would be a a statue, that there would be a way that every schoolchild would know who this person was and the importance of his struggle for equality.

Nick Capodice: I just want to say I think it's interesting that the three of us are talking about learning or not learning about [00:22:30] this in school because we've been talking a lot about exclusion and the idea of like the Chinese Exclusion Act. But exclusion doesn't end in 1965. There's still this exclusion of what stories we tell and don't tell.

Hannah McCarthy: I feel like after today, I have a much clearer sense of this time in American history. So thanks for sharing Felix.

Felix Poon: Yeah, thank you for having me host Today it's been an honor to be able to tell you this story. Today's [00:23:00] episode was produced by me Felix Poon, along with Hannah McCarthy, Nick Capodice and Jacqui Fulton. Erika Janik is our executive producer. Special thanks to Bill Hing and Taylor Quimby. Music In this episode from Blue Dot Sessions, Sara, the instrumentalist, Loba Loco and the Tower of Light. You can listen to more Civics 101 at Civics101podcast.org. Civics 101 is supported in part by the Corporation for Public Broadcasting. [00:23:30] It's a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Declaration Revisited: Native Americans

Today is our second revisit to the document that made us a nation. Writer, activist, and Independent presidential candidate Mark Charles lays out the anti-Native American sentiments within it, the doctrines and proclamations from before 1776 that justified ‘discovery,’ and the Supreme Court decisions that continue to cite them all.

In this episode students will learn about: Land acknowledgments, Navajo introduction traditions, the Doctrine of Discovery, Proclamation of 1763, Native Americans in the Declaration, Johnson v M’intosh, and City of Sherrill v. Oneida Indian Nation of New York.

Education Resources

Graphic Organizer and Discussion Questions

Civics 101 Lesson Plan: Creating a Land Acknowledgment

Episode Segments

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Transcript

Civics 101

Episode: Declaration Revisited: Native Americans

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

Nick Capodice: [00:00:05] When we did our declaration episode last year Hannah, author and Harvard professor Danielle Allen told us the document was a masterclass in political philosophy unto itself, that you can hear pro slavery and antislavery voices in it. And then there was something that we didn't talk about in the episode. In a recent interview on Vox, she said, One of the big things we get wrong when we talk about the declaration is that we think it was written entirely by Thomas Jefferson.

Danielle Allen: [00:00:35] He put on his tombstone author, Declaration of Independence. That was a real self aggrandizing gesture. In fact, he was the scribe. The intellectual work of the declaration was driven significantly by John Adams and Benjamin Franklin. That's an important thing to say out loud, because Adams is somebody who never owned slaves and Franklin was somebody who was an enslaver earlier in his life. And who repudiated enslavement [00:01:00] and in fact became a proactive vocal advocate of abolition.

Nick Capodice: [00:01:05] And when we spoke with Danielle, she noted this, that there are pro slavery and antislavery voices in the declaration. But then she followed up that there is one community that shared no such duality.

Danielle Allen: [00:01:17] I mean, 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 this is really, for me, the worst moment in the declaration, the one piece of the declaration that still I think really hurts.

Nick Capodice: [00:01:32] I'm Nick Capodice.

Hannah McCarthy: [00:01:32] I'm Hannah McCarthy.

Nick Capodice: [00:01:34] And this is Civics 101, the podcast refresher course on the basics of how our democracy works. Today is our second revisit to our founding document. We wanted to focus on that particular grievance and its social and political reverberations. I spoke with author, activist and independent candidate for president Mark Charles, and I'll let him introduce himself.

Mark Charles: [00:01:57] Yá’ át’ ééh. Mark Charles yinishyé. Tsin bikee dine’é nishłí. Dóó tó’aheedlíinii bá shíshchíín. Tsin bikee’ dine’é dashicheii. Dóó tódích’ íi’ nii dashinálí. [00:02:00]

Mark Charles: [00:01:57] In our Navajo culture, when we introduce ourselves, we always give our four clans. We're matrilineal as a people and our identities come from our mother's mother. So my mother's mother's American of Dutch heritage. And that's why I say Tsin bikee dine’é that loosely translated, hat means I'm from the wooden shoe people. My second clan, my father's mother is tó’aheedlíinii gleni, which is the waters that flow together. My third clan, my mother's father is also Tsin bikee dine’é, my fourth clan, my father's father is tódích’ íi’ nii, that's the bitter water clan. It's one of the original clans of our Navajo people.

Hannah McCarthy: [00:02:42] That's really interesting because, you know, whenever we introduce ourselves, like even at the beginning of each podcast, we say our first name and our last name and leave it at that. But that Navajo introduction roots oneself in the lands and the people that are a part of you. [00:03:00] It's an active form of self identifying.

Mark Charles: [00:03:03] I also just want to acknowledge that I am speaking to you today from Washington, D.C. and Washington, D.C. is the traditional end of the Piscataway, the Piscataway are the native nation. They lived here. They hunted here. They farmed here. They fished here. They raised their families here. They buried their dead here. Their society was here. And this was the nation that was removed from these lands. And when these lands were colonized. So they were here long before Columbus got lost at sea and then they were removed from these lands. So the District of Columbia, the state of Maryland, the state of Virginia could be established. I like to acknowledge the people whose land I'm on, no matter where I go around the country. So everywhere I speak, when I travel, I always acknowledge the host people of the land. And I want to acknowledge today the Piscataway and I want to thank them publicly for their stewardship of these lands. And I want to thank them for the honor of living of being on their lands today.

Nick Capodice: [00:03:57] I called Mark to talk about the declaration, but [00:04:00] he said first we had to go back to another set of documents from about 300 years earlier, which created a concept of international law called the Doctrine of Discovery.

Hannah McCarthy: [00:04:10] To be honest, I actually haven't heard of that. And I'm a little abashed because we did an entire series on the founding documents. What is the doctrine of discovery?

Mark Charles: [00:04:21] The Doctrine of Discovery is a series of papal bulls that are edicts of the Catholic Church written between fourteen fifty two and fourteen ninety three. They say things like invade, search out, capture, vanquish and subdue all Saracen's and pagans whatsoever, reduce their persons to perpetual slavery, convert them to his and to their use and profit.

Nick Capodice: [00:04:43] That quote is from the papal bull Dum Diversas in 1452. A papal bull, by the way, is a public decree or a charter that's issued by the pope. And Dum Diversas was issued in 1452 by Pope Nicholas the Fifth.

Mark Charles: [00:04:58] So the doctrine discovery, it's essentially [00:05:00] the church in Europe saying to the nations of Europe, wherever you go, whatever lands you find that are not ruled by white European Christian rulers, those people are subhuman and their land is yours for the taking. So this is literally the doctrine that let European nations go into Africa, colonize the continent, enslave the people because they didn't believe them to be human. It's the same doctrine that allowed Columbus, who was lost at sea, to land in this new world, which was already inhabited by millions, and claimed to have discovered it.

Mark Charles: [00:05:34] If you think about it, you cannot discover land already inhabited. That's called stealing. It's called conquering, it's called colonizing. The fact that our history books, our monuments are our proclamations refer to Columbus as the discoverer of America, this reveals the implicit racial bias of the nation, which is that Native people specifically and people of color in general are not fully human.

Hannah McCarthy: [00:05:59] And I would guess, right, [00:06:00] that the dehumanization of nonwhites results in a drastic expansion of the church's power across the whole world. So how is this idea of enslavement and the taking of land tied to the Declaration of Independence?

Nick Capodice: [00:06:18] Mark wanted to mention one more step before 1776. It's a proclamation of King George III, given to the 13 colonies in 1763.

Mark Charles: [00:06:28] In this proclamation, one of the things he did was he essentially drew a line down the Appalachian Mountains and he said to the colonies that were here that they no longer have the right of discovery of the empty Indian lands west of Appalachia. That right, he said, belonged to the crown, not to the colonists. Now, this is where there was a break between the northern colonies up where Canada is and the southern colonies, which were the thirteen of the US, where the northern colonies accepted the proclamation of 1763. It didn't change the history. The [00:07:00] lands were still "discovered." They were just discovered by the Crown, not the colonies.

Nick Capodice: [00:07:05] 1763 is also the year of the end of the French and Indian War, also known as the Seven Years War. And that's when what became Canada changed from French hands to British control. And this proclamation actually started to set up guidance on how to protect indigenous rights to the land. It's a huge factor in Canadian land rights, even to this day. But the southern colonies and when I say southern, I mean all of the 13 colonies that eventually became the United States, they rejected this. They wanted that land for themselves. They wanted that right of discovery. And so they made an official complaint.

Mark Charles: [00:07:42] So a few years later, they write a letter of protest. In their letter of protest, they have a list of grievances against the king. One of the grievances is that he's raising the level of conditions for new appropriations of land. The other grievance this is one of their last grievances is that he's endeavoured to bring on the inhabitants [00:08:00] of our frontiers, the merciless Indian savages, whose only known rule of warfare is a complete destruction of all ages, sexes and conditions. It's literally...this is the Declaration Independence.

Hannah McCarthy: [00:08:10] I have thought of the declaration as an announcement of separation, a justification for revolution, but I'd never considered it as a letter of protest.

Nick Capodice: [00:08:21] The grievances, frankly, get short shrift when we examine the document, but they are all tied to very specific frustrations with England, with the king, and those two paired together embed this racist doctrine of discovery into our very founding.

Mark Charles: [00:08:37] So 30 lines below the statement, all men are created equal, the Declaration of Independence refers to natives as savages, making it very clear that the founding fathers used this inclusive term all men, merely because they had a very narrow definition of who is actually human. So this makes the Declaration [00:09:00] of Independence a blatant systemically white supremacist document.

Nick Capodice: [00:09:09] And it's not just the ethical problem of considering a whole people as savages, the doctrine of discovery becomes embedded into American law. In 1823, the Supreme Court ruled in the case of Johnson vs. McIntosh.

Mark Charles: [00:09:24] And it's two men of European descent and they're litigating over a single piece of land. One of them got the land, acquired the land from a tribe. The other one acquired the same land from the government. They want to know who owned it. So the case goes all the way to the Supreme Court. So the Supreme Court, this is John Marshall's court. He was the chief justice at the time. They had to decide the principle that land titles were based on. They ruled that the principle was that Discovery gave title to the land and then they referenced the Doctrine of Discovery and John Marshall actually [00:10:00] wrote, he said, But the Indians who inhabited these lands were fierce savages whose subsistence came chiefly from the forests. To leave them in possession of their own country was to leave the country a wilderness. This is in the in the opinion he wrote in Johnson vs. Mcintosh. So literally the conclusion of this opinion is that title is based on Discovery, and Natives, even though we were here first, but because we're savages, we are merely occupants of the land, like a fish, occupies water, like a bird occupies air. Meanwhile, Europeans, who have the right of discovery to the land, the fee title to it, they're the true title holders. So that case back in 1823 creates the legal precedent for land titles based on this understanding that natives are savages.

Hannah McCarthy: [00:10:56] How long did that Supreme Court precedent remain that [00:11:00] land titles are based on "discovery?"

Nick Capodice: [00:11:03] That decision, Marshall's decision was cited in 1954, 1985 and most recently 2005.

Hannah McCarthy: [00:11:13] Are you kidding? What was the 2005 case?

Nick Capodice: [00:11:15] It was the city of Sherrill vs. the Oneida Indian Nation of New York. To take it back, at the time of our founding, the Oneida Indian Nation owned about six million acres of land, which the George Washington administration reduced to a few hundred thousand and set aside as a reservation. The Oneida sold much of that land to New York State over the next 200 years.

Mark Charles: [00:11:36] So in the nineteen nineties, the United Indian nation came back to the state of New York and they purchased some of their traditional lands on the open market. They paid full price for them. And they wanted to reestablish some of their traditional sovereignty over these lands. Now, the lands they bought were within the city limits of the city of Sherrill, and if they had sovereignty [00:12:00] over them, it meant they wouldn't pay taxes on them. The city of Sherrill wanted their tax revenues. So they sued the Oneida Indian Nation in federal district court. The case went to the Supreme Court in 2003 and in 2005 the opinion was written. In the first footnote of the case, the court references the doctrine of discovery by name. They then go on to establish that because these lands were settled by, were settled by white people, that there was no precedent for giving the land back. They then go on and they build the argument that these lands have since been converted from wilderness to become parts of city like Sherrill.

Hannah McCarthy: [00:12:44] They used that exact word wilderness.

Nick Capodice: [00:12:46] They did. They are reiterating the exact words of Justice Marshall.

Mark Charles: [00:12:50] So the court in 2005 is making the exact same argument. It's just not using the word savages, but it's making the same argument. And so then they conclude [00:13:00] that the Oneida Indian Nation cannot rekindle embers of sovereignty that have long ago grown cold. It's one of the most white supremacist Supreme Court opinions in my lifetime. And that opinion was written by Ruth Bader Ginsburg.

Ruth Bader Ginsburg: [00:13:15] But given the extraordinary passage of time, the Oneida's long delay in seeking equitable relief in court against New York or its local units and developments in the city of Sherrill spanning several generations. We reject the piecemeal shift in government.

Mark Charles: [00:13:34] And you ask yourself, how can this happen while our nation is literally having a debate about systemic institutionalized white supremacy and we're calling out these racist symbols and we're making some even big changes, and yet we still celebrate this document that literally calls native savages. [00:14:00]

Nick Capodice: [00:14:05] Mark told me the reason he wants to have a national conversation about this is that when we talk about institutional racism and white supremacy, we don't just deal with the low hanging fruit.

Mark Charles: [00:14:16] Yeah, the low hanging fruit is Andrew Jackson. Most Americans can agree he was a problem. We have to deal with him. The low hanging fruit is the Confederate flag. And generally, you know, most people can agree they didn't represent the best of America. The low hanging fruit is Christopher Columbus. Yes. He was pretty vile person who who way overstepped his bounds of what he should have done. That's the low hanging fruit. And yeah, we can all agree those are not good pieces of our history and our legacy to deal with. But because we're dealing with systemic racism and institutionalized white supremacy, we also have to realize that's going to affect the core of who we are.

Mark Charles: [00:14:55] So we have to also look at what's at the center. Abraham [00:15:00] Lincoln, who was a blatant white supremacist and literally committed genocide against native peoples in the states of Minnesota, Colorado and New Mexico, including my own people, the Navajo in the long walk.

Nick Capodice: [00:15:15] We have to look at the Declaration of Independence, it's the value statements for our nation. And what I'm saying is until we have a foundation that actually allows for the humanity of everybody, our laws are never going to reflect that. If you have a house that's built on a bad foundation, you're going to have cracks in your walls, you're going to have gaps in your windowsills, you're going to have a creaky, crooked floor. Now you can paint your walls all you want. You can caulk your windows as much as you want. You can you carpet your your floor every every summer. But until you fix the foundation, you're never going to fix the house. [00:16:00]

Mark Charles: [00:16:01] And so this is where a new law isn't going to solve these problems. We have to deal with the foundation. And so I propose that let's remove the racism, the sexism in the white supremacy from our foundations.

Nick Capodice: [00:16:25] That's two out of three declaration responses, the third will be in a couple of weeks. Today's episode is produced by me, Nick Capodice, with you Hannah McCarthy. Thank you.

Hannah McCarthy: [00:16:32] Our staff includes Jacqui Fulton and Felix Poon.

Nick Capodice: [00:16:35] Erica Janik is our executive producer. Music in this episode by Yung Karts sub Harmonic Bliss. Emily Sprague. And to hear him is to love him. Chris Zabriskie.

Hannah McCarthy: [00:16:46] Also, if there are any teachers out there who want to join our cabinet to get paid to work with us to create lesson plans and activities, to pair with our show, get all of the details at Civics 101 podcast.org backslash [00:17:00] Info.

Nick Capodice: [00:17:02] Finally, Hannah and I are going to host an On Air Ask Civics segment weekly on New Hampshire Public Radio. So if you have any questions you like answered in the lead up to this massive election, send them our way. Email us at Civics101@nhpr.org.

Hannah McCarthy: [00:17:15] Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Declaration Revisited: Black Americans

Today is the first of three revisits to the Declaration of Independence; three communities to which the tenets of life, liberty, and the pursuit of happiness did not apply.

Byron Williams, author of The Radical Declaration, walks us through how enslaved Americans and Black Americans pushed against the document from the very beginning of our nation’s founding.

In this episode students will learn about: Prince Whipple, Frederick Douglass, Langston Hughes, and James Baldwin.

Episode Resources

Graphic organizer and discussion questions

Freedom and the Nation's Founding Documents from Teaching Tolerance (references Whipple petition)

Episode Segments

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Transcript

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

Nick Capodice: [00:00:04] About a year ago, Hannah, we made an episode about the Declaration of Independence. And it had a healthy dose of my enthusiasm for 1776.

[00:00:13] The declaration will be a triumph. I tell you, a triumph!

Nick Capodice: [00:00:17] And it had different takes from three scholars on what the document was.

[00:00:22] It had the job of justifying one of the most consequential political decisions ever taken.

[00:00:27] And I refer to the Declaration Independence as originally written as a secession ordinance.

[00:00:32] This was as close to a perfect document on human agency that one will ever find,

Nick Capodice: [00:00:40] And I loved making that episode. I really did.

Hannah McCarthy: [00:00:44] And since then, the declaration has found its way into many of our episodes.

Nick Capodice: [00:00:49] Yes, our exploration of that document feels forever unfinished. And on the cutting room floor of that episode was something our guest, Byron Williams, said. How the declaration was exclusionary, but the ideas in it evolved into the words of Abraham Lincoln. James Baldwin, the poet and activist Langston Hughes. As we passed this most recent quarantined Fourth of July, I called Byron up to just get a little more on this.

Nick Capodice: [00:01:18] Just want to check the time before we start to start, you got like 30 minutes.

Byron Williams: [00:01:21] I got thirty one for you.

Nick Capodice: [00:01:24] Byron Williams is a professor, theologian and host of the show The Public Morality, and he has just written The Radical Declaration. It's a book of essays on our paradoxical founding document. So I asked him first how the declaration had been used to fuel political change.

Byron Williams: [00:01:41] Well, Lincoln, reconstruction, women's suffrage, civil rights, Jim Crow, Vietnam. The current moment. We see that. That's the great thing about about that document. We can just pick a seminal moment and it pretty much works. So how do you want to go?

Nick Capodice: [00:01:58] I'm Nick Capodice. 

Hannah McCarthy: [00:01:59] I'm Hannah McCarthy. 

Nick Capodice: [00:02:00] And this is Civics 101, the podcast refresher course on the basics of how our democracy works. Today is the first of three revisits to the Declaration of Independence, perhaps our most celebrated founding document. While it has been used, as Byron said, to instigate change throughout our country's history, it is, frankly, a document that's left many people and communities out.

Hannah McCarthy: [00:02:23] By which you mean enslaved Americans, women, people of color and Native Americans.

Nick Capodice: [00:02:30] And initially, even more than that,

Byron Williams: [00:02:33] It is never stated. But the unstated part of that declaration was it applied to white male landowners. In our present discourse, oftentimes we hear white male and we leave out landowners. But it was white male landowners. Sort of like think of it this way. Life, liberty and the pursuit of happiness is this moral agreement. And you've got to have all three to have them all. Two thirds of that proposition won't cut it. If you were white and male and not a landowner, you were still disenfranchised. So as a result, you have this document that proposes creating a nation on liberty and equality. What becomes with the unstated white male land owners? You have subjective liberty and inequality. You disenfranchise all the women, all the people of color, and depending on the, on the data, somewhere between 35 and 50 percent of the white male population. So it's a document right there rooted in inconsistency in what I talk about in the book paradox.

Nick Capodice: [00:03:47] And that paradox in the declaration was commented on and tested not long after it was signed. Byron points to Prince Whipple of Portsmouth, New Hampshire.

Byron Williams: [00:03:57] He was this slave of William Whipple, who was a signer of the Declaration,  and they petitioned to the Hampshire Continental Congress in 1779, to be exact. And a part of it reads The petition of Nero Brewster and others natives of Africa now forcibly detained in slavery and said state most humbly submit that the God of nature gave them life and freedom upon terms of the most perfect equality with other men. That freedom is an inherent right of the human species not to be surrendered. Does that not sound like they were slightly influenced by we hold these truths to be self-evident, that all men are created equal, endowed by their creator?

Byron Williams: [00:04:45] You see right there, the Declaration of Independence is already becoming radicalized, going already going beyond the intended white male landowner to, to more people really not included going, wait a minute. But you said these things. And we are petitioning our freedom based on what you have already committed yourselves to.

Hannah McCarthy: [00:05:09] This was a literal petition that went before the New Hampshire house.

Nick Capodice: [00:05:13] Yes. Before we even had a constitutional right to protest or petition. This was how the people in New Hampshire could interact with their government.

Hannah McCarthy: [00:05:21] What did the New Hampshire Congress do?

Nick Capodice: [00:05:23] They tabled it with no legislative action. Whipple himself was not freed for five more years. Movement towards abolition in New Hampshire began in 1783, but Portsmouth merchants participated in the slave trade until 1837. That was the year the African slave trade was abolished, not the practice of slavery itself.

Nick Capodice: [00:05:45] A small number of enslaved people were reported on the census in New Hampshire until 1840. And shortly after that, in 1852, one of the most famous and critical speeches about American independence was delivered. Frederick Douglass's What to the Slave is the Fourth of July. It's a speech he gave at a commemoration of the Declaration signing.

Hannah McCarthy: [00:06:08] Did you see that recording done by NPR this past Fourth of July of his descendants reading sections from that?

[00:06:15] What to the American slave is your Fourth of July? I answer a day that reveals to him more than all other days in the year the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham. Your boasted liberty and unholy license, your national greatness, swelling vanity, your sound of rejoicing are empty and heartless.

Byron Williams: [00:06:44] Frederick Douglass is obviously one of those stories you can't make up a runaway slave.He runs away, stows away, goes to England, becomes educated. I'm just giving you the really not even the Reader's Digest version and comes back and becomes one of the most ardent abolitionists to end slavery.

Byron Williams: [00:07:05] At this point. It was 1850, 1852. Frederick Douglass sees the irony, the inconsistency of the Declaration of Independence that it does not extend to everybody specifically. It does not extend, you know, to the people of African descent. But later on. Post Civil War. Douglas says this, "I have said that the Declaration of Independence is the ringbolt to the chain of your nation's destiny. So indeed, I regarded the principles contained in that instrument are saving principles. Stand by those principles, be true to them on all occasions and in all places against all foes and at whatever cost. I think that's a great lesson for all of us if we freeze this document in time. You know, I you know, I'm an African-American, if I freeze it, if I freeze the document to the intentions of 1776, then the document may not be relevant to me given given given the history of America. But it's not about anyone's intent. It's what the country committed to. And so you see in Frederick Douglass at the first reading, he points out the hypocrisy, but then later on he evolves and goes, you know what? This document does work, but it can only work if we wanted to.

Nick Capodice: [00:08:36] When I learned about Frederick Douglass in school, it was always in the context of the civil war. But he continued to give lectures across the world well after. He helped to build housing for Black Americans in Baltimore in the late 1890s. And he died in 1895 after returning from a meeting of the National Council of Women in Washington, DC. So, yes, slavery was abolished in 1865, but responses to the declaration and the ideals laid out in it continued into the 20th century.

Byron Williams: [00:09:10] So then you have Langston Hughes saying, you know, America has never been America to me, it's a beautiful poem.

Nick Capodice: [00:09:18] Are you familiar with Langston Hughes?

Hannah McCarthy: [00:09:19] I know a little I know that he was a prominent author during the Harlem Renaissance and that he wrote a famous poem called Harlem.

[00:09:27] What happens to a dream deferred? Does it dry up like a raisin in the sun or fester like a sore and then run? Does it stink like rotten meat?

Nick Capodice: [00:09:38] Byron is referencing Hughes's later poem entitled Let America Be America Again.

Byron Williams: [00:09:45] But even in that lament that America has never been America to him and acknowledging the hypocrisy Hughes carves out a piece of hope. "But I do say clearly America will be America to me" in spite of itself, this thing will happen. And so there is the reality that the America of America's failed promise, but yet there's still this hope that America will be this thing one day.

Byron Williams: [00:10:14] And then you have one of the great 20th century writers, James Baldwin.

Nick Capodice: [00:10:20] James Baldwin was a prolific playwright and novelist and essayist who wrote extensively on the subject of race, but also spoke about it on late night talk shows.

Byron Williams: [00:10:31] There's this great interview that he does on Dick Cavett, and I'm paraphrasing, but Baldwin basically says, you know, I don't know if if real estate lobbyists hate black people, but I know where they forced me to live.

[00:10:46] I don't know what the labor unions and their bosses really hate me. That doesn't matter. But I know I'm not in their unions. I don't know if the Board of Education hates Black people. I know the textbooks I give my children to read and the schools that we have to go to. Now, this is the evidence. You want me to make an act of faith, risking myself, my life and my woman, my sister and my children on some idealism, which you assure me exists in America, which I have never seen.

Byron Williams: [00:11:14] And so at some point, delayed gratification becomes no becomes nonexistent. And I don't believe it. And the only challenge to that is that if you follow the Baldwin path to its logical conclusion, you end up nihilistic and apathetic, which is an understandable conclusion. It does not make us a better people. You know, Bob Dylan wrote the lyric, When you got nothing, you've got nothing to lose. A Democratic Republic cannot survive if it has a growing population that feels they have nothing to lose. That they have nothing. So they have nothing to lose. And they're sort of checked out. The republic cannot survive if that number reaches a certain threshold. And I and I actually worry today Nick that we're getting closer to that threshold.

Hannah McCarthy: [00:12:06] What does Byron think will improve our Democratic Republic?

Nick Capodice: [00:12:11] Byron was very careful to not give prescriptions on how to improve our democratic republic. He specifically said he wrote this book on the declaration to start a conversation. I think I'm going to end this one on the words of someone else, on James Baldwin.

Nick Capodice: [00:12:31] Apathy and nihilism aside, in 1959 he wrote, "Any honest examination of the national life proves how far we are from the standard of human freedom from which we began," which is life, liberty and the pursuit of happiness. And then he said "the recovery of this standard demands of everyone who loves this country, a hard look at himself. And if we're not capable of this examination, we may yet become one of the most distinguished and monumental failures in the history of nations."

Nick Capodice: [00:13:14] I'm taking a page out of Byron's book in honor of him being the first outdoor Civics 101 interview, and I'm recording these credits outside on the hottest day of the year at 12 noon.

Nick Capodice: [00:13:26] Today's episode is produced by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton and Felix Poon. Erica Janik is our executive producer and figurative thunder blanket. Music in this episode by Jesse Gallagher, Blacksona, Sarah the Illstrumentalist and that musician who keeps his songs in a brisk key, Chris Zabriskie. And attention teachers! We're hiring! Civics 101 is hiring. We're looking for a few educators from across the country to design lesson plans and brainstorm new episodes and materials. For more information, remuneration, s super short application, go to civics101podcast.org/info. 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.

Civic Action: Voting, Part 2

Voting in America is not always straightforward, nor is its impact always clear. In this episode, we give you the basic tools to vote on election day, including tips for avoiding the roadblocks. And for those of you on the fence about exercising that enfranchisement, a word to the wise: your vote matters. We’ll tell you why, with help from Kim Wehle and Andrea Hailey.

Episode Resources

Looking for a voting leg up? Check out the resources below! And don’t forget, your secretary of state’s office is a baseline go-to for info on registration, polling locations and other voting musts!

Vote.org (check out their Election Protection page)

U.S. Election Assistance Commission

Vote 411

Common Cause

Rock the Vote

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Transcript

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

Civics 101

Civic Action: Voting, Pt. 2

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

Hannah McCarthy: [00:00:06] Before I started interviewing people for this voting thing, Nick, the question came up that often comes up at the show. We're talking about voting.

[00:00:15] Voting can be a political act, but is voting a political subject?

[00:00:23] And if we try to give people the tools to vote through this show, is that a political act?

Nick Capodice: [00:00:30] We've had this discussion in meetings dozens of times. And to me, it feels like it shouldn't be. But maybe that's just my gut.

Hannah McCarthy: [00:00:37] Yeah, it's my gut, too. We've talked about this a lot, but still, I had to ask.

Kim Wehle: [00:00:42] Well, I'm so glad you raised that point that asking or encouraging people to vote is somehow partisan. Because my last book last year was about the Constitution, how to read the Constitution and why. And sometimes talking about what's in the Constitution is perceived as partisan.

Hannah McCarthy: [00:00:57] This is Kim Wehle. After writing [00:01:00] How to read the Constitution and Why she wrote a book called What You Need to Know About Voting and Why. And he asked, she tells people how to vote and she doesn't think it's political.

Kim Wehle: [00:01:10] The reason that I say go ahead and vote is that we all are Americans. And ultimately, we are a government by the people. It's not a government by the Republicans or a government by the Democrats or government by independents. It's government by the people.

[00:01:26] Kim's thing is the framers set us up with this system that would allow us to self govern. No depending on some king's good graces, we would be self-determined here. Voting is the tool they gave us to ensure that.

Kim Wehle: [00:01:41] And if we don't exercise our right to vote, the alternative is that politicians have the power. So I think it. I don't think it's partisan, really, structurally and theoretically to to encourage people to be to self-govern, because that is the compact that we as Americans have by birth, essentially. [00:02:00] That is reflected in the Constitution. And I think it's really doing a disservice. And it is partisan to suggest that somehow voting is is not a good idea for any individual, because it's the only way that you can have your views heard, regardless of where you aren't a policy, whether you like believe in climate change, you don't. You support immigration reform. You don't. You want LGBTQ rights. You don't. The way you get that herd is at the ballot box. Otherwise, people in power make that decision for you.

Achival: [00:02:38] Now, here's a sign that says, hey, kids, tell everybody it's your duty to vote.

Hannah McCarthy: [00:02:48] Welcome to Civics 101. The podcast about the basics of how our democracy works. I'm Hannah McCarthy.

Nick Capodice: [00:02:54] I'm Nick Capodice.

Hannah McCarthy: [00:02:55] And this is part two of our voting episode. We're going to cover, quite simply [00:03:00] how to do it.

Achival: [00:03:01] You have to be registered in order to vote.

Nick Capodice: [00:03:03] The ballot box is the place where your political and moral beliefs get amplified. That's where your ideas can become a reality.

Achival: [00:03:10] So kids make sure that your moms and dads checked the registration days in your community.

Hannah McCarthy: [00:03:16] And before we dig in, it must be said.

[00:03:19] Voting is not easy for everyone. There are a lot of laws, practices and policies in this country that end up disenfranchising people.

[00:03:28] And if you want to know more about that, you can check out part one of this episode on voting. But if you just want to know how to do the dang thing, well, here we go.

Achival: [00:03:38] Remember, boys and girls, it's their duty and privilege to vote. Make sure that mom and dad do.

Kim Wehle: [00:03:44] Number one is to register. And now in the age of COVID, if you want to vote by mail, you have to usually apply to vote by mail in order to then vote by mail. So you have to make sure you're registered in the polls and then and request a mail in ballot.

Nick Capodice: [00:03:59] Now, I want [00:04:00] to point out that while all states have some form of mail in voting. About a third of them, at least the time this podcast dropped, summer 2020, require you to have some sort of excuse for needing that mail in ballot. Those excuses range from being out of the country on Election Day to being over a certain age, to having a religious reason for not being able to go to the polls.

Hannah McCarthy: [00:04:21] Also there are more and more cases of people challenging, needing to have an excuse, a reason, and even pushing for, you know, a worldwide pandemic to be a good excuse for needing a mail in ballot. All right. So registration is step one, step two.

Kim Wehle: [00:04:37] Step two is voting. Just because you've registered doesn't mean when you show up on that day that you are going to be able to vote. You have to make sure that your registrations up to date, if you've moved, you have to let your secretary of state know in your state that you've moved. If you've moved out of state, you have to re-register in the new state. Some states you can show up on voting day and register, and that's awesome. [00:05:00] But in most states, it's a two step process. And you have to do the registration early enough in time and you have to show up at the polls with the requirements that your state mandates.

[00:05:10] Certain states have higher ID requirements than others.

Nick Capodice: [00:05:14] Can we pause this for just one minute because I'm forever stuck on this issue of registration and whether I'll actually be on the voter roll when I get to the polling place.

[00:05:24] I know that when you register to vote, you get placed on a voter roll. That's the list that says who can vote at a certain polling place.

[00:05:31] How can it be if I'm a registered voter in my state, I might not be on the list?

[00:05:37] Yeah. All right. People who take issue with the way this particular practice plays out. Call it purging. But states call it list maintenance.

Nick Capodice: [00:05:47] And list maintenance.

[00:05:48] That is when people's names are taken off the voter roll.

Hannah McCarthy: [00:05:51] Yes. And to be clear, federal law mandates list maintenance. So this is something that states are required to do. If someone [00:06:00] has died or moved or for some reason become an eligible to vote, their name is supposed to be stricken from that list. The specific reasons for canceling a registration are largely up to the states, and they do vary. The idea there is that if lists contain a bunch of people who aren't actually there and or can't actually vote, then you've gotten an accurate representation of a voter pool and you're spending more money on mailing notices, on printing ballots and running elections than you actually need to spend.

Nick Capodice: [00:06:34] Correct me if I'm wrong here, but there are people who say that this is actually a form of voter suppression. Aren't there? Like people who haven't moved. Who are still very much eligible to vote, who show up at their polling places raring to go and discover their name is not on the list.

Hannah McCarthy: [00:06:50] This happens. And not just to a handful of people. It happens to many hundreds of thousands of eligible and rightfully registered voters, which [00:07:00] in a state where you can register day of that's annoying, but fine. But in a state where you have to preregistered that can pose a real problem.

Achival: [00:07:11] The staggering purge of some 200000 New York City voters from the 2016... Counties with a history of voter discrimination have been purging people at higher rates than the... The Texas secretary of state's office says

[00:07:23] it's questioning the citizenship status of thousands of registered voters... the county removes thousands of registered voters on a regular basis for inactivity... It's supposed to catch people who have moved. But we found it can happen to people who have lived at the same address for years.

Hannah McCarthy: [00:07:38] These are lists with millions of people on them, and it's human beings doing the list maintenance. And they make mistakes. A lot of them.

Nick Capodice: [00:07:48] So let's say I am a voter who is nervous about this possibility of a voter roll purge or maintenance or whatever. How do I make absolutely sure that my registration is going to count?

Kim Wehle: [00:07:59] So you have to get [00:08:00] your ducks in a row for both. That's why I call it like a recipe. You register. And I -- you could add step 1-B, make sure your registrations up to date, and then B, show up at the polls with whatever documentation that you need to show you, prove that you are who you are.

Nick Capodice: [00:08:14] Bear with me and I'm going to push this just a little bit more because, look, I American Voter X,  am not perfect and maybe just getting to the polls was tricky enough right now in the pandemic. I'm worried about remembering my mask, making sure I have child care taken care of because I can't bring them into the polls and it's a whole megillah. So let's say I get there. I don't have my I.D., but I know I'm eligible. I know I'm registered.

[00:08:38] What do I do?

Kim Wehle: [00:08:45] If they turn you away step three would be always ask for what's called a provisional ballot, which federal law requires them to just give you a backup ballot. Essentially that that may or may not get counted. Depends on the state. Some states make you then follow up with your documentation. [00:09:00] But at least it means that you had an opportunity to have your voice heard. In some measure, you didn't just go home empty handed.

Hannah McCarthy: [00:09:07] Also, by the way, some states only require that you sign a form confirming your identity. So the processes vary. The important thing is to ask. Actually, the important thing is to demand. If the polling person is still like, sorry to have cookies, no provisional ballot for you, then this is what you say. All right. Give me a provisional ballot with receipt, as is required by law when requested. Memorize that.

Nick Capodice: [00:09:40] Yeah. Very good. Very lawyerly. And I know we address this a bit in part one, but the issue of the polling place itself, like I show up armed with confirm registration and an I.D. and I know what to say. If all else fails and I show up at my polling place and it isn't a polling place at all, it's closed or [00:10:00] as we have seen in recent elections. The line is like six hours long and I have to go take care of my kids.

Hannah McCarthy: [00:10:07] This is the slightly mushier thing about accessing the polls. And a lot of voting rights advocates would say that stuff like this is pretty hard to defend. Pull closure or understaffed polls. They happen. They happen a lot. And yes, it means that some people end up basically prohibited from voting. States cite all sorts of reasons for closing polls, by the way, from tight budgets to needing to be in compliance with the Americans with Disabilities Act to a polling place, having had in recent years a low turnout. I brought the closings question to Andrea Hailey. She's the CEO of Vote.org. I also asked her if she thought voting was a partisan subject, by the way. And she also said no. And neither, in her estimation, is reasonable access [00:11:00] to the polls.

Andrea Hailey: [00:11:01] People should ask that of their county and state officials and say, what are the plans?

[00:11:07] Because, look, I had a vote that Oregon, when I went to vote on primary day in Indiana, I did not know that they were closing hundreds of polling locations. I didn't know that my heart was going to be standing in line for hours at a time. It would I think states are going to have to add you're going to have massive closures like that.

[00:11:26] You have to make that really well known to the public. But the public should demand that polling locations stay up. And we know that that polling locations tend to be closed or more difficult to reach, especially for lower income. Folks in this country, I do not think all these closures are a mistake.

Nick Capodice: [00:11:45] The suggestion there is that there is something political going on, isn't it? If these closures are mistaken, that means people are being actively, purposefully denied the vote.

Hannah McCarthy: [00:11:56] There are a lot of people who would say that is not [00:12:00] the case, that these measures are in place to protect the vote, to keep the vote secure, keep the process unsullied. And you can't discount the fact that even with the protective measures put in place by our Constitution and various laws, those laws don't always translate into action because they're being translated by fallible, corruptible, self-interested human beings. You know that James Madison quote from the Federalist Papers about man in government.

Nick Capodice: [00:12:29] Boy, how do you do, if men were angels no government would be necessary.

Hannah McCarthy: [00:12:33] Yeah, well, he rounds that off by saying if angels were to govern, men, neither external nor internal controls on government would be necessary. Which to me is a pretty way of saying, look behind the glossy operation. There are a bunch of fallible people and those people need to be checked and checked again because they aren't angels. They're capable of corruption. And in fact, power has [00:13:00] a tricky tendency to lead to corruption.

Nick Capodice: [00:13:02] What it sounds like you're suggesting, Hannah, is that we we the people are Madison's external control in this case. We are the ones who look at it from the outside and we notice when things aren't exactly going the way of the angels.

Hannah McCarthy: [00:13:15] Yeah, that's my take.

Nick Capodice: [00:13:17] So here's my thing. That's really nice in theory. And the idea that voting is how we implement that external control is great. But given all the difficulties, which again, I am now prepped for and given the things we discussed in part one, the Electoral College is a top of mind for me right now. For example, I need to know whether our vote actually works as that external control.

Hannah McCarthy: [00:13:38] I am going to firmly say yes, yes. And I am sure about that. Remember what we were saying about state and local government in the first part of this episode, that those are the people who we need to concentrate on. That is where the rubber meets the road.

Andrea Hailey: [00:13:57] I mean, state and local elections are the ones that affect your life [00:14:00] more than almost more than any other election. And right now, in this protest moment is a really good example of why local government matters. If you want a mayor that will hold a police chief accountable. You've got to participate in that mayoral election and make sure that that mayor shares your values. If you want a D.A. that is going to, you know, file charges and you elect your D.A., you've got to, you know, figure out who that is and what kind of value system they hold in some southern states. You have the Supreme Court is elected in a few of these southern states. That's really important. These are the judges who are going to set the precedent on how your state laws govern.

Hannah McCarthy: [00:14:48] We have to remember that state laws govern voting. You know, we might not concentrate too much on state and local, but that that is really where the power starts. And your vote can [00:15:00] actually govern state laws in a way that's external control.

Nick Capodice: [00:15:05] Even in a presidential election?

Hannah McCarthy: [00:15:06] Yes, there are almost certainly going to be what's called down ballot offices on the presidential election ticket, the so-called lower stakes, less important ones, the ones that people don't necessarily pay attention to. But those are the ones you've got to pay attention to. That's where the change starts. And one last thing that I want to bring up on the subject of does my vote matter? Does it make a difference? The why vote of at all, especially for the people to whom it really matters if they can sway the presidential election? Here's Kim Wehle again.

Kim Wehle: [00:15:45] The votes do matter. I mean, 537 votes in Florida put George Bush in office for eight years, and I don't think anyone can claim that. That didn't change the course of not just American history, but global history of totally reshape the Middle East and [00:16:00] all. Most of us could name five hundred and thirty seven people that we either know personally I've met in our lives or just know of. It's not a lot. So that's number one. Number two, is it less around 50 percent of eligible voters vote? You imagine if that were 60 percent or 70 percent or 80 percent. I mean, everyone said if we grab one person, get them voting, politicians are going to have a harder time ignoring individual Americans in favor of dark money and corporate and corporate money in politics. So it's going to make your vote matter more if there's a tsunami of civic participation. The third piece has to really do with honoring the privilege of our ancestors and the privilege of actually having free and fair elections. I mean, Americans don't understand. It's not every country where even in a democracy that seems like a democracy, where you really do have a government that is accountable to the people. That is not all in bed with power brokers and money gangsters. I mean, that [00:17:00] is it's a real privilege. I mean, you could be maybe you're a religious person that you believe in a higher power. I feel like I'm blessed. And it's a gift to have been born and have my children born in this country. And it's honoring that gift. It's honoring that privilege that not everyone in the planet has.

Nick Capodice: [00:17:20] I have to tell you, and and when I talk about voting, when I think about voting, I come to it lately, especially with a healthy dose of skepticism, sometimes cynicism. And Kim and You, frankly, are helping remind me that, yeah, we are a representative democracy and not everybody has that in this world. And it is a gift that's something that we have to do.

Hannah McCarthy: [00:17:42] Yeah. I think part of the idea is the only way to preserve it is to participate in it. Right. To go out and vote while you can. Thank [00:18:00] you for listening to civics one on one. This episode was produced by me, Hannah McCarthy. And me, Nick Capodice. With help from Felix Poon and Jacqui Fulton. Erica Janik is building a voting booth in her backyard. But it's just so her dogs can experience the joy of enfranchisement.

Nick Capodice: [00:18:29] Maureen McMurray, she's pretty far down ballot. But she's got the most control over the number of pizza delivery flyers that show up in your mailbox.

Hannah McCarthy: [00:18:36] Music in this episode by Silicon Transmitter, The Tides, Spectacular Sound Productions, Shaolin Dub and Xylo Xico.

Nick Capodice: [00:18:43] In the past, I would be irritated when shows would ask this question. But now that I work on a show, I find it's necessary. So, dear listener, if you like civics one to one so much that you listen to the credits like you doing now. Please consider leaving us a review on Apple podcast or whatever [00:19:00] you listen to this on. It's tremendously helpful.

[00:19:03] We read them even if they make us cry. And we firmly believe that all feedback makes us better because it does.

[00:19:09] We take it to heart.

Hannah McCarthy: [00:19:10] 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.