Our 250th Annual Trivia Episode!

Not really. But we send one of our own out in style by asking (and answering) some very tough questions. Including one you might recognize.

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Transcript

Nick Capodice: [00:00:07] You are listening to Civics 101 from NPR. [00:00:10] I'm Nick Capodice.

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

Dana Cataldo: [00:00:13] I'm Dana Cataldo.

Rebecca Lavoie: [00:00:14] And I'm Rebecca Lavoie.

Nick Capodice: [00:00:15] And this is the 25th annual Civics 101 Trivia Round.

Hannah McCarthy: [00:00:19] The [00:00:20] 250th Civics 101.

Nick Capodice: [00:00:22] 250th anniversary of the first Civics 101 trivia.

Rebecca Lavoie: [00:00:25] Feels for sure. Whoa!

Nick Capodice: [00:00:27] Yeah. Rebecca, can we say anything about [00:00:30] you before we start?

Rebecca Lavoie: [00:00:31] Yeah, this is very likely my final appearance on one of these trivia episodes. I have taken a new job here at NPR. I am now the chief content officer and [00:00:40] no longer working with you guys directly every day. Sad.

Hannah McCarthy: [00:00:43] Very sad.

Rebecca Lavoie: [00:00:44] But I still wanted to do this very badly.

Hannah McCarthy: [00:00:46] You can be the Rebecca Emeritus Civics 101. [00:00:50]

Rebecca Lavoie: [00:00:50] Thank you. Yeah. That is in Robert's Rules of Order or the parliamentary procedure?

Hannah McCarthy: [00:00:54] Absolutely. Sure, sure.

Rebecca Lavoie: [00:00:57] Take back everything I said. This is not my last one.

Nick Capodice: [00:00:59] I fib a lot to [00:01:00] people to make them feel better in my day to day life. Rebecca. Okay, sorry, but not you. But what? But the point I'm trying to make here is that from the bottom of my heart. I am really sad [00:01:10] that you're no longer our boss. Which you even refuse to let us call you as such. But.

Rebecca Lavoie: [00:01:15] Well, I love working with the two of you, and I'm glad I'm not, like, leaving the. You know, I'm still working [00:01:20] in content, so I'm still going to be working with the two of you. I know, and we have Slack so we can talk Slack. Yeah.

Hannah McCarthy: [00:01:25] That's true.

Nick Capodice: [00:01:26] Dana Cataldo. Can we it's your first time in the studio. [00:01:30]

Dana Cataldo: [00:01:30] This is my first time in the studio. Dana's never been behind this mic over here.

Nick Capodice: [00:01:33] Oh my goodness. Would you introduce yourselves to to the audience?

Dana Cataldo: [00:01:37] Yeah. So my name is Dana Cataldo. I'm the digital video producer here at [00:01:40] Civics 101. So making our, our fun little videos on the Instagrams, on the TikToks, on the social medias soon on the YouTubes. Yeah.

Nick Capodice: [00:01:47] And she got hit with, can I tell them you got hit with a softball [00:01:50] really hard?

Dana Cataldo: [00:01:50] Oh yeah.

Nick Capodice: [00:01:51] That's fantastic.

Hannah McCarthy: [00:01:52] It's the coolest bruise.

Nick Capodice: [00:01:53] It's the best bruise I've ever seen in my life. It looks like matches your shirt.

Dana Cataldo: [00:01:57] It did? Yeah, I got drilled right in the leg. It was all me, [00:02:00] fortunately. But yeah, it was a lot. A lot of blue.

Nick Capodice: [00:02:03] Did the doctor say that this is all me?

Dana Cataldo: [00:02:06] That's what I said. I want to say they wanted to put me on the bench. I was like, no.

Nick Capodice: [00:02:09] This is [00:02:10] all me, sir. I shall pitch this game. I got a couple rounds of trivia for you all today, [00:02:20] and the first one is kind of just dipping your toe in the bath a little bit, and it's Civics 101 by the numbers. And I have a fun chart here for everyone.

Rebecca Lavoie: [00:02:28] Oh, boy.

Nick Capodice: [00:02:28] With some numbers, you [00:02:30] could look at this and it says 45,727,525,685.

Rebecca Lavoie: [00:02:36] I'm relieved about one thing. What's that? I see a 52, 56 and [00:02:40] 85. So this can't be a thing where which president it is?

Nick Capodice: [00:02:43] Yeah. None of these are presidential.

Rebecca Lavoie: [00:02:44] We would all be terrible.

Nick Capodice: [00:02:46] The worst kind of trivia.

Rebecca Lavoie: [00:02:48] Yeah.

Nick Capodice: [00:02:49] Boo! Yeah, [00:02:50] you'd be good at that.

Dana Cataldo: [00:02:51] Be good at that one.

Nick Capodice: [00:02:51] So, can you all see the numbers?

Hannah McCarthy: [00:02:53] Yes.

Nick Capodice: [00:02:53] All right, here we go. First person to say the correct answer gets the point. Question number [00:03:00] one, amendments to the Constitution.

Dana Cataldo: [00:03:03] 27.

Nick Capodice: [00:03:04] Dana. Cataldo.

Hannah McCarthy: [00:03:06] Dana.

Nick Capodice: [00:03:06] Bing bong.

Dana Cataldo: [00:03:08] I just listened to some recent articles. [00:03:10] Episodes.

Nick Capodice: [00:03:11] Yeah. Very good. The easy trick for the 26th amendment, if you want to forget. If you forget, what it means is six plus two. 26 is eight. 18 years old is [00:03:20] when you can vote. Oh, I wish I had a mnemonic for all of those.

Rebecca Lavoie: [00:03:23] Yeah.

Nick Capodice: [00:03:23] Ready for the next one?

Hannah McCarthy: [00:03:24] Yes.

Nick Capodice: [00:03:25] Essays in the Federalist Papers 52.

Hannah McCarthy: [00:03:30] 56, [00:03:30] 85. It's 85. I knew it was 85.

Nick Capodice: [00:03:34] It was 85.

Rebecca Lavoie: [00:03:35] We just let you have that one hand.

Nick Capodice: [00:03:36] We're gonna let you have that one. Hannah. I'm gonna.

Hannah McCarthy: [00:03:38] Put. I had this [00:03:40] four and a year. Weeks in a year, 52.

Rebecca Lavoie: [00:03:43] Wait, have there ever been any episodes about the Federalist Papers on this program?

Hannah McCarthy: [00:03:47] Yeah, it's all me. Yeah. I have multiple copies [00:03:50] of the federal.

Nick Capodice: [00:03:51] I did fed ten. All right, you guys ready for the next one?

Hannah McCarthy: [00:03:53] Yes.

Nick Capodice: [00:03:55] Articles in the Constitution.

Hannah McCarthy: [00:03:57] For.

Nick Capodice: [00:03:59] Dana Cataldo. [00:04:00]

Rebecca Lavoie: [00:04:00] By the way, I've been overseeing a podcast about civics for five years.

Nick Capodice: [00:04:05] You guys ready?

Hannah McCarthy: [00:04:06] Yeah.

Nick Capodice: [00:04:06] Freedom's in the First Amendment.

Hannah McCarthy: [00:04:08] Four.

Dana Cataldo: [00:04:09] Five. [00:04:10]

Hannah McCarthy: [00:04:10] Five. Oh my God.

Dana Cataldo: [00:04:14] Should we should.

Nick Capodice: [00:04:14] We go through the five freedoms.

Rebecca Lavoie: [00:04:16] Are speech, religion, [00:04:20] assembly, petition I think is.

Hannah McCarthy: [00:04:24] Petition.

Rebecca Lavoie: [00:04:25] And press.

Hannah McCarthy: [00:04:27] Yes, yes, yes.

Rebecca Lavoie: [00:04:28] Do I get a point for that?

Nick Capodice: [00:04:29] You get [00:04:30] a point. I'm going to give you.

Rebecca Lavoie: [00:04:31] Please, I need one.

Nick Capodice: [00:04:32] Yeah, yeah. Everybody's on the board. Here we go. Freedoms that Franklin Delano Roosevelt said everyone should enjoy in his [00:04:40] 1941 state of the Union.

Rebecca Lavoie: [00:04:42] Five.

Dana Cataldo: [00:04:43] Four.

Hannah McCarthy: [00:04:44] Four.

Rebecca Lavoie: [00:04:44] Oh, of course it's free. We already.

Hannah McCarthy: [00:04:46] Used.

Rebecca Lavoie: [00:04:46] We already used five.

Dana Cataldo: [00:04:47] Yeah.

Nick Capodice: [00:04:48] I think there's also four Freedoms Park [00:04:50] on Roosevelt Island.

Hannah McCarthy: [00:04:51] Oh, that's what I was thinking.

Nick Capodice: [00:04:53] If anyone's curious, those freedoms are freedom of speech and expression, freedom of worship, freedom from want and [00:05:00] freedom from fear. Signers of the Declaration of Independence. 5656. [00:05:10] Well done Hannah. Anybody want to shout out one of those names?

Dana Cataldo: [00:05:16] John Hancock.

Nick Capodice: [00:05:17] Very good. Anyone else want to shoot one out?

Hannah McCarthy: [00:05:19] Benjamin [00:05:20] Franklin.

Nick Capodice: [00:05:21] And then the last one words in the preamble to the Constitution.

Hannah McCarthy: [00:05:24] 52.

Nick Capodice: [00:05:33] So [00:05:30] at the end of this first round, we have Hannah with three points, Rebecca with two points and [00:05:40] Dana with five.

Hannah McCarthy: [00:05:42] Oh.

Dana Cataldo: [00:05:43] Wow.

Nick Capodice: [00:05:43] New kid on the block. Running away with it.

Hannah McCarthy: [00:05:46] Yeah.

Dana Cataldo: [00:05:46] Embarrassing for you guys.

Hannah McCarthy: [00:05:47] Yeah, 100%. It's very embarrassing. [00:05:50]

Nick Capodice: [00:05:55] We're going to do a whole lot more trivia, but we got to take a quick break. Welcome [00:06:10] back to Civics 101 trivia. Rebecca's last trivia. Maybe never. Definitely not [00:06:20] Rebecca's last trivia as our boss.

Rebecca Lavoie: [00:06:22] Sure. That's fair.

Nick Capodice: [00:06:24] Dana's first trivia. Until we invent a time machine.

Dana Cataldo: [00:06:27] Yay! Oh.

Nick Capodice: [00:06:29] Yay! Boom! [00:06:30] Christina Phillips, who used to work at Civics 101, would always do these kind of cool [00:06:40] this or that rounds. And I was always impressed with them. And I was like, I got to come up with one of these. And here is what I'm going to do. I have nine titles [00:06:50] that I'm going to read to each of you. These titles are either a book written by a president of the United States or the [00:07:00] title of an episode in the beloved franchise, Buffy the Vampire Slayer.

Hannah McCarthy: [00:07:04] Oh. So good. That's good.

Rebecca Lavoie: [00:07:07] So good.

Speaker 6: [00:07:07] In every generation, there is a chosen one. [00:07:10] She alone will stand against the vampires, the demons, and the forces of darkness. She is the slayer.

Nick Capodice: [00:07:17] Are any of you Buffy fans?

Hannah McCarthy: [00:07:18] I've only watched it through once. [00:07:20]

Rebecca Lavoie: [00:07:20] Uh oh. I have my hand up high.

Nick Capodice: [00:07:22] Rebecca has her hand scratching the ceiling.

Rebecca Lavoie: [00:07:24] Acknowledge that.

Nick Capodice: [00:07:26] I have seen one episode and I enjoyed it greatly. So, [00:07:30] Hannah, I'm going to start with you.

Hannah McCarthy: [00:07:31] Okay.

Nick Capodice: [00:07:32] Uh, is this a book written by a president or the title of a Buffy episode? Keeping faith.

Hannah McCarthy: [00:07:40] Ooh. [00:07:40] Uh, I'm gonna say a book by a president.

Speaker 5: [00:07:48] Absolutely. Well done.

Nick Capodice: [00:07:49] That [00:07:50] is one of the many books that Jimmy Carter wrote. Uh, and appropriately, it leads enough to Dana Faith, hope and trick. [00:08:00]

Dana Cataldo: [00:08:01] Buffy.

Nick Capodice: [00:08:02] It is Buffy. Rebecca. Do you know who Faith is?

Rebecca Lavoie: [00:08:05] Yeah, of course I do. Who's faith? Faith is another slayer played by Eliza [00:08:10] Dushku.

Speaker 7: [00:08:10] I mean, if I'd had friends like you in high school, I probably still would have dropped out. But I might have been sad about it, you know?

Nick Capodice: [00:08:17] All right. Rebecca Lavoie.

Rebecca Lavoie: [00:08:18] Yeah.

Nick Capodice: [00:08:20] In [00:08:20] the arena, it is a president. Well done. I thought it would get you with that one. That is. The full title is in the Arena Colon A Memoir [00:08:30] of Victory, defeat and Renewal. Anyone want to guess who? Which president wrote that?

Rebecca Lavoie: [00:08:34] Uh, Eisenhower. I'm thinking of a war, people. You know.

Nick Capodice: [00:08:37] Defeat is pretty important. Richard [00:08:40] Nixon.

Hannah McCarthy: [00:08:41] Oh.

Nick Capodice: [00:08:42] In the arena, unjustly put in the arena.

Hannah McCarthy: [00:08:46] For.

Nick Capodice: [00:08:46] Being a cheat.

Rebecca Lavoie: [00:08:47] Renewed by playing a lot of golf in California. [00:08:50] Maybe.

Nick Capodice: [00:09:00] Hannah [00:09:00] McCarthy, the initiative.

Hannah McCarthy: [00:09:04] Ooh, I'm gonna say Buffy.

Nick Capodice: [00:09:08] In the initiative, spike is imprisoned [00:09:10] in an underground demon research facility, and Riley Finn realizes he has a crush on Buffy.

Hannah McCarthy: [00:09:17] Oh.

Rebecca Lavoie: [00:09:17] Lame.

Nick Capodice: [00:09:18] Is that as Riley Finn? [00:09:20]

Rebecca Lavoie: [00:09:20] Kind of like he was not a fan favorite.

Hannah McCarthy: [00:09:22] Yeah, I did not love Riley.

Rebecca Lavoie: [00:09:23] Leave that there.

Hannah McCarthy: [00:09:24] I remember the underground facility.

Rebecca Lavoie: [00:09:26] Run by the government.

Hannah McCarthy: [00:09:27] Mhm.

Nick Capodice: [00:09:29] Everybody's [00:09:30] been ace in this.

Hannah McCarthy: [00:09:31] I'm still waiting for someone to tell me I'm a vampire slayer.

Dana Cataldo: [00:09:35] Maybe you just have to slay your vampire first.

Hannah McCarthy: [00:09:38] You're probably.

Dana Cataldo: [00:09:38] Right. It's a requirement. Yeah.

Hannah McCarthy: [00:09:40] That's [00:09:40] how we start.

Nick Capodice: [00:09:47] Dana.

Dana Cataldo: [00:09:49] Yes.

Nick Capodice: [00:09:49] Fear [00:09:50] itself.

Dana Cataldo: [00:09:53] Buffy. Oh, you got it. It is Buffy.

Nick Capodice: [00:09:56] I thought I'd get you because we have nothing to fear but fear itself.

Hannah McCarthy: [00:09:59] Yeah, but.

Dana Cataldo: [00:09:59] I thought it [00:10:00] was like. No. No way.

Nick Capodice: [00:10:01] Yeah. Who did say we have nothing to fear but fear itself?

Dana Cataldo: [00:10:03] Roosevelt. Fdr.

Rebecca Lavoie: [00:10:04] Oh my God. She knows everything.

Hannah McCarthy: [00:10:06] Oh my God.

Nick Capodice: [00:10:07] I should just quit. Uh! Fear [00:10:10] itself. Buffy reluctantly agrees to Joy, Willow, Oz, and Xander at a Halloween party where they stumble into a real life house of horrors masquerading as an innocuous fraternity. [00:10:20]

Hannah McCarthy: [00:10:20] Wow. Oh, I remember that one is weird.

Nick Capodice: [00:10:24] Yeah. Uh, Rebecca.

Rebecca Lavoie: [00:10:27] Yes.

Nick Capodice: [00:10:28] Decision points.

Rebecca Lavoie: [00:10:30] President. [00:10:30] Yeah. Yeah. That's easy peasy. Yeah.

Nick Capodice: [00:10:34] Anyone want to take a shot at which president wrote decision points?

Rebecca Lavoie: [00:10:37] I'd say w.

Nick Capodice: [00:10:38] Absolutely it's George [00:10:40] W you get a bonus point for.

Hannah McCarthy: [00:10:41] That.

Dana Cataldo: [00:10:41] He's a decider.

Hannah McCarthy: [00:10:42] Yeah.

Rebecca Lavoie: [00:10:43] To be fair the dude did have a lot of decision points.

Dana Cataldo: [00:10:46] He made a lot of.

Hannah McCarthy: [00:10:46] Decisions a lot.

Rebecca Lavoie: [00:10:48] Of.

Hannah McCarthy: [00:10:48] Choices.

Nick Capodice: [00:10:49] Now watch this drive. [00:10:50]

Rebecca Lavoie: [00:10:52] I mean as presidents often do. Yeah. But.

Nick Capodice: [00:10:55] All right. Here we go. Hannah McCarthy.

Hannah McCarthy: [00:10:58] Yes.

Nick Capodice: [00:10:58] Is it a Buffy episode [00:11:00] or a book by a president. Where's the rest of me?

Hannah McCarthy: [00:11:04] Uh, I, I feel like, um. Buffy. [00:11:10]

Nick Capodice: [00:11:13] It's a book by a president. Anyone want to take a shot at. Who said? Where's the rest of me? He didn't talk like that.

Rebecca Lavoie: [00:11:17] Where's the. Was Rodney Dangerfield president? [00:11:20] Where's the rest of me?

Nick Capodice: [00:11:21] Uh, it is a president who lost something after their presidency. Mentally.

Hannah McCarthy: [00:11:29] Oh. Oh. [00:11:30] Did Reagan.

Nick Capodice: [00:11:31] He did.

Hannah McCarthy: [00:11:32] Yeah. Yeah. Do I get a point for regaining that one?

Nick Capodice: [00:11:36] You do.

Hannah McCarthy: [00:11:36] Thank you.

Nick Capodice: [00:11:37] Six. Six. Five.

Rebecca Lavoie: [00:11:39] Mhm. [00:11:40] Charging back.

Nick Capodice: [00:11:41] Charging back. Dana. An hour before daylight.

Dana Cataldo: [00:11:46] President.

Nick Capodice: [00:11:49] Yes. Because [00:11:50] you knew.

Speaker 8: [00:11:51] It was a vampire.

Dana Cataldo: [00:11:52] Vampire?

Hannah McCarthy: [00:11:53] Vampire. Especially like Buffy's gotta go out hunting and.

Rebecca Lavoie: [00:11:57] Like, go on patrol.

Dana Cataldo: [00:11:58] Yeah, that was too [00:12:00] that was too two low hanging that it was much higher.

Hannah McCarthy: [00:12:02] That was really tricky.

Nick Capodice: [00:12:03] The full title is an Hour before Daylight Memories of a Rural Boyhood, and we want to shout out [00:12:10] who that could be.

Rebecca Lavoie: [00:12:10] Another book by Carter.

Nick Capodice: [00:12:12] Yeah, Rebecca.

Hannah McCarthy: [00:12:13] Gary Carter, folks.

Nick Capodice: [00:12:15] It's all tied up and it could be broken right now. [00:12:20]

Rebecca Lavoie: [00:12:20] All right.

Nick Capodice: [00:12:20] Last question in this round, Rebecca, what's my line?

Rebecca Lavoie: [00:12:25] Buffy.

Nick Capodice: [00:12:26] In part one, Buffy endures career week at school [00:12:30] while spike hires assassins to kill her.

Hannah McCarthy: [00:12:32] Yes.

Nick Capodice: [00:12:33] And this also has someone called Kendra the Vampire Slayer. Is that another slayer?

Rebecca Lavoie: [00:12:37] Yes. I'm just gonna say this is [00:12:40] the first time in my life that my encyclopedic knowledge, Buffy the Vampire Slayer has come in so handy as it did when Christina asked us all those Twilight questions.

Hannah McCarthy: [00:12:48] Oh, yeah.

Rebecca Lavoie: [00:12:49] Mhm.

Hannah McCarthy: [00:12:50] When [00:12:50] are we going to have a my so-called life themed round?

Rebecca Lavoie: [00:12:53] I guess what? I'd also be good at that. Do you remember, Hannah, when Angela thought that Jordan Catalano [00:13:00] wrote a song about her.

Hannah McCarthy: [00:13:01] Of course.

Rebecca Lavoie: [00:13:02] But it was actually.

Hannah McCarthy: [00:13:02] About her. It's about his.

Rebecca Lavoie: [00:13:04] Car. Exactly.

Nick Capodice: [00:13:11] Well, [00:13:10] that is the end of the second round. One more round coming up. We got to take a quick break. Welcome [00:13:30] back to Civics 101 trivia. Our last round, except for bonus question, is coming [00:13:40] up. I'm gonna need each of you to make sure you have a fresh piece of paper.

Hannah McCarthy: [00:13:44] Mhm.

Nick Capodice: [00:13:45] Just to take notes and to write your answers down. So these are nine questions [00:13:50] with a secret theme. All right. Hannah. Yes. Question number one.

Hannah McCarthy: [00:13:55] Okay.

Nick Capodice: [00:13:56] I'm looking for the last name of the American motorcycle [00:14:00] designer. He was born in 1880, and that name is also the first name of an anti-heroine in the Batman series, whose [00:14:10] costume is stolen directly from one of the characters in the commedia dell'arte.

Hannah McCarthy: [00:14:15] Harley.

Nick Capodice: [00:14:16] And who are the two Harley's?

Hannah McCarthy: [00:14:18] Harley Quinn and Harley Davidson.

Nick Capodice: [00:14:21] All [00:14:20] right. Dana. The mnemonic to remember all the departments in the cabinet in the executive branch is. See that dog jumping in a circle? [00:14:30] Leave her home to entertain educated veterans homes. Do you remember I made a video of that in an airport once and said it to you?

Dana Cataldo: [00:14:37] Yes.

Nick Capodice: [00:14:38] So if you look at all the departments [00:14:40] in the cabinet, two of them are the letter T. The first one that was created is the Department of the Treasury. What is the other T? [00:14:50]

Dana Cataldo: [00:14:50] Transportation.

Hannah McCarthy: [00:14:52] Yes.

Nick Capodice: [00:14:53] The DOT the answer is the Department of Transportation or the DOT. Well done Rebecca. [00:15:00]

Rebecca Lavoie: [00:15:00] Yes.

Nick Capodice: [00:15:00] Sorry about this one.

Rebecca Lavoie: [00:15:02] Oh gosh.

Nick Capodice: [00:15:03] What is the common name for the animal of the genus Knoy.? Naja. [00:15:10] With varieties such as forest, snouted and spitting. The most famous of these animals is actually not a naja. It is a genus all to itself. [00:15:20] Named, amusingly enough, the Ophiophagus Hannah. I just thought that was funny. It's not relevant to the round, but I just need the common name of the animal. With [00:15:30] varieties forest snouted and spitting.

Rebecca Lavoie: [00:15:33] Forest snouted and spitting sloth.

Nick Capodice: [00:15:38] Anybody else want to take a crack? [00:15:40]

Rebecca Lavoie: [00:15:40] I guess that's wrong.

Nick Capodice: [00:15:41] Yes. Sloths. Wrong. This animal is also the name of the bad guys in the Karate Kid franchise.

Hannah McCarthy: [00:15:47] Oh.

Rebecca Lavoie: [00:15:48] Cobra.

Nick Capodice: [00:15:49] Yeah, [00:15:50] I'll give it to you. Nice, nice. The Cobra Kai, why don't you just take your precious Cobra Kai and get out of here?

Rebecca Lavoie: [00:15:55] The best.

Speaker 9: [00:15:56] Sweep the leg.

Nick Capodice: [00:15:58] Hannah. The [00:16:00] most famous company that makes this cooking product in the United States is Argo. And this product is used to thicken soups [00:16:10] and sauces and a host of Chinese dishes. It can also be used probably never by you as a dry shampoo.

Hannah McCarthy: [00:16:19] I have used [00:16:20] it as a dry shampoo. I have used everything you can use as a dry shampoo, including baby powder. Everybody don't be doing that. Uh, it is cornstarch. Yes. [00:16:30]

Nick Capodice: [00:16:30] Excellent. Cornstarch is the correct answer. Well done.

Hannah McCarthy: [00:16:34] Thank you.

Nick Capodice: [00:16:35] Dana. Dana, you're getting all the civics questions today. Excellent. This question [00:16:40] introduced something to me that I am buying immediately. So here we go. According to the World Factbook, a reference guide published by the CIA [00:16:50] like for real. Like you can buy this informational document from the CIA. What country? Dana, buy a lot in the world [00:17:00] has the longest coastline.

Dana Cataldo: [00:17:03] Chile.

Nick Capodice: [00:17:04] Anybody else want to take a crack? It is more than double the number two country with 125,000 [00:17:10] miles of coastline.

Rebecca Lavoie: [00:17:14] Australia.

Nick Capodice: [00:17:15] Longer than that.

Hannah McCarthy: [00:17:16] The United States.

Nick Capodice: [00:17:18] Close.

Dana Cataldo: [00:17:19] Canada. [00:17:20]

Speaker 8: [00:17:20] Canada.

Speaker 10: [00:17:24] And us are home and native land. Who. [00:17:30] Patriot love in all thy sons command. Glowing hearts we see. [00:17:40]

Dana Cataldo: [00:17:40] Give me that point, I did. Give me another point.

Nick Capodice: [00:17:43] Oh, boy. My pencil broke. I got another one.

Dana Cataldo: [00:17:46] Yeah. Excuses for not giving me more points.

Nick Capodice: [00:17:48] Actually, everybody is tied with eight each.

Rebecca Lavoie: [00:17:49] I [00:17:50] love this for us, Rebecca. Yes.

Nick Capodice: [00:17:52] What? Government agency, which is now the highest funded U.S. law enforcement agency at $85 billion, [00:18:00] Has not had a Senate appointed director since 2017.

Rebecca Lavoie: [00:18:04] Law enforcement.

Nick Capodice: [00:18:05] Yes.

Rebecca Lavoie: [00:18:06] Fbi.

Nick Capodice: [00:18:07] Anybody else want to take a crack?

Hannah McCarthy: [00:18:08] Is it ice?

Nick Capodice: [00:18:09] Ice. [00:18:10] Hannah, I'm going to give you the point.

Rebecca Lavoie: [00:18:11] Very good.

Nick Capodice: [00:18:12] Hannah. Yes. I am so sorry to give you an actor question, but I gotta do it today. I had to do it. This actor who I [00:18:20] love so much, who laughs like this. He's played an Indiana basketball coach, Superman's arch nemesis. [00:18:30] And your favorite, the not actually dying patriarch of a wealthy family who lives on Archer Avenue in Harlem.

Hannah McCarthy: [00:18:39] I know [00:18:40] him, just let it happen. Just. It's right there. It's right there. Gene Hackman.

Speaker 11: [00:18:46] Oh. Very good.

Hannah McCarthy: [00:18:50] I [00:18:50] love Gene Hackman.

Rebecca Lavoie: [00:18:51] I literally wrote it down to prove I knew it, because that's what kind of a dork I am. Also because I'm trying to guess the theme.

Nick Capodice: [00:18:56] I'm trying to think if there's any other good Gene Hackman movies that everybody in this room loves. [00:19:00]

Rebecca Lavoie: [00:19:00] Oh, he's so good.

Nick Capodice: [00:19:01] Unforgiven heist.

Rebecca Lavoie: [00:19:02] Unforgiven is great.

Speaker 12: [00:19:04] That's a great movie.

Speaker 13: [00:19:04] Yeah, he was real careful. No hurry. And bam! [00:19:10]

Nick Capodice: [00:19:11] Dana, when you know a song to sing, you can sing most anything. What is the sixth note and what [00:19:20] we call the solfege scale? And as a hint, it is not a deer, not la. It is.

Speaker 11: [00:19:28] La.

Nick Capodice: [00:19:29] La [00:19:30] la do re mi fa. So la and la is just a note to follow.

Rebecca Lavoie: [00:19:34] So yeah, it's lame. It's got nothing, nothing going for it except for that apparently.

Nick Capodice: [00:19:39] So you got [00:19:40] like a needle pulling thread.

Rebecca Lavoie: [00:19:41] And all.

Nick Capodice: [00:19:41] That. Okay, Rebecca, your last question. You're our manager. You were our manager. And a tremendous one at that. But [00:19:50] you are not. Nor have you ever been an HR employee. Is that true? You've never worked in HR.

Rebecca Lavoie: [00:19:58] Can you.

Nick Capodice: [00:19:58] Tell? I'm glad you [00:20:00] said it. Not me. Thank goodness. So any HR person worth their salt knows that there are over 20 types of this a [00:20:10] paid or unpaid period of time where an employee stops working.

Rebecca Lavoie: [00:20:14] Leave.

Nick Capodice: [00:20:15] Well done, well done, well done, well done. Now look at your answers everybody [00:20:20] for your the correct answers for your three questions. And for a bonus three points. Write down the secret theme of this round. Raise your hand when you're done and [00:20:30] you're gonna hate it.

Dana Cataldo: [00:20:32] I'm vexed.

Nick Capodice: [00:20:33] I love seeing vexation.

Rebecca Lavoie: [00:20:35] This is going to be an anagram or something, isn't it?

Nick Capodice: [00:20:38] Pack my box with six dozen liquor [00:20:40] jars.

Rebecca Lavoie: [00:20:42] This is like the hardest game of connections.

Nick Capodice: [00:20:45] This is the purple clue.

Rebecca Lavoie: [00:20:47] Yes.

Nick Capodice: [00:20:48] Anybody want to just say any idea [00:20:50] you got at all? Maybe for partial credit.

Rebecca Lavoie: [00:20:52] Mm. Liberace. It's not an anagram, but I think I can spell it with all the words in my answers.

Nick Capodice: [00:21:00] You [00:21:00] seem to be devoted to this anagram idea.

Rebecca Lavoie: [00:21:03] Well, I know you.

Nick Capodice: [00:21:05] I'm going to give Rebecca one point for that.

Rebecca Lavoie: [00:21:07] Thank you.

Nick Capodice: [00:21:09] Dana, [00:21:10] you had DOT Canada and la Hannah, Harley, cornstarch Hackman and Cobra ice. Leave DOT Canada law is an anagram of Dana Cataldo. [00:21:20] Cobra ice. Leave is Rebecca Lavoie and Harley Cornstarch. Hackman. I've got all of their movies. Is Hannah Rose. Clark McCarthy.

Speaker 14: [00:21:29] Oh, [00:21:30] wow.

Rebecca Lavoie: [00:21:31] All of them.

Hannah McCarthy: [00:21:33] I was about to say, there's no K in my name, but there is.

Rebecca Lavoie: [00:21:36] I'm just saying, now that I look at it, it's incredibly.

Hannah McCarthy: [00:21:38] Obvious that I had [00:21:40] a K in my name the whole time.

Nick Capodice: [00:21:41] If I was playing this round, it would have been Cindy Peacock.

Hannah McCarthy: [00:21:44] Mhm.

Nick Capodice: [00:21:45] I hope I guys I'm going to the big Cindy Peacock concert tonight. So, [00:21:50] uh, well done everyone. Rebecca, you're gonna get one point because you knew it was an anagram of some kind. Hannah's [00:22:00] got nine points, Dana has nine points and Rebecca [00:22:10] has ten points. Gotten pushed over the top from that bonus.

Rebecca Lavoie: [00:22:13] I feel like some of my points were suspect, but that's okay. Yeah, I'll take them.

Nick Capodice: [00:22:18] So I'm going to play a piece of [00:22:20] tape for you all from the last trivia. So listen up.

Rebecca Lavoie: [00:22:23] Christina used to do this.

Nick Capodice: [00:22:26] This is the third time for this question.

Rebecca Lavoie: [00:22:29] Oh, no, [00:22:30] oh, no. I know a question. It's going to be.

Speaker 15: [00:22:34] Idaho is the biggest producer of potatoes in the United States. We went [00:22:40] around the room and I asked you to share your guess for one of the four states that rounds out the top five potato producers in this [00:22:50] country. Idaho is number one. And there are four other states that are top potato producers. So you each got two guesses. Last time, only [00:23:00] one person got one out of the eight guesses. Correct.

Hannah McCarthy: [00:23:03] So Idaho.

Nick Capodice: [00:23:07] Idaho.

Rebecca Lavoie: [00:23:08] Even though we've heard the answer [00:23:10] twice before.

Nick Capodice: [00:23:11] Idaho is the biggest producer of potatoes in the United States.

Rebecca Lavoie: [00:23:17] Here we go.

Nick Capodice: [00:23:18] Write down any of [00:23:20] the other four and you get two guesses. Put down any of the other four biggest producers of potatoes in the United States that are [00:23:30] not idle.

Hannah McCarthy: [00:23:30] I know I'm just going to write down one of the wrong answers that I got last time. I'm just going to do it.

Rebecca Lavoie: [00:23:35] Yeah. There's one that I know isn't because I was so sure.

Nick Capodice: [00:23:39] I might start [00:23:40] with you, Dana, because you never you don't know what we're talking about.

Dana Cataldo: [00:23:43] Not really. I mean, I feel the drama of apparently hearing the answer to this twice before, and [00:23:50] this still being difficult enough to ask it a third time.

Nick Capodice: [00:23:53] I got one of the one of them correct the first time, and then the second time she asked it, I got none of them. I got worse. [00:24:00]

Rebecca Lavoie: [00:24:00] The second time she asked it, I gave the same answers.

Nick Capodice: [00:24:03] I did to at least one of them. Wait, we're gonna be able to go back in the past later and see how.

Rebecca Lavoie: [00:24:09] I'm comparing the [00:24:10] harp sound effect in everything. The dream memory. Harp.

Nick Capodice: [00:24:14] Last night I dreamt about potatoes again. Last night I dreamt I went to potato again. By the [00:24:20] way, you get two points for each correct state. Let me hear em, Dana.

Dana Cataldo: [00:24:24] All right, I said Ohio and Maine.

Nick Capodice: [00:24:28] I'm so sorry to hear it. Yeah, [00:24:30] neither.

Dana Cataldo: [00:24:30] Of those are kind of.

Rebecca Lavoie: [00:24:31] I was very confident in Maine the first two times.

Nick Capodice: [00:24:34] Potato producers. Hannah.

Hannah McCarthy: [00:24:36] I'm gonna say Indiana and Pennsylvania.

Speaker 16: [00:24:40] I [00:24:40] think you said those last.

Hannah McCarthy: [00:24:41] No.

Nick Capodice: [00:24:44] I said Pennsylvania last time.

Hannah McCarthy: [00:24:47] I was so sure I was being really innovative. [00:24:50]

Nick Capodice: [00:24:50] We're batting a thousand here on the potato round. So far, everybody's got a potato. Rebecca, you're currently in the lead, so you're gonna win this either way. What [00:25:00] are your two states?

Rebecca Lavoie: [00:25:02] I'm really torn. I have California and South Carolina.

Nick Capodice: [00:25:06] California is the one we all said every time.

Rebecca Lavoie: [00:25:09] And it was. [00:25:10]

Speaker 11: [00:25:10] Wrong.

Nick Capodice: [00:25:12] Nobody got it right. After Idaho. It is Washington, Wisconsin, [00:25:20] Colorado, and North Dakota.

Rebecca Lavoie: [00:25:23] We are so stupid.

Dana Cataldo: [00:25:24] Colorado point.

Nick Capodice: [00:25:30] The [00:25:30] final score is Hannah McCarthy with nine points, Dana Cataldo with nine points and Rebecca Lavoie with ten. Going out, going out. [00:25:40] Hi.

Rebecca Lavoie: [00:25:40] Does this make me a three time champion?

Nick Capodice: [00:25:42] I think it makes you at least a two time champion.

Rebecca Lavoie: [00:25:44] I think it's.

Hannah McCarthy: [00:25:45] I think it might be three.

Nick Capodice: [00:25:47] Maybe three, maybe.

Rebecca Lavoie: [00:25:48] Four. Back to the tape and find [00:25:50] out.

Hannah McCarthy: [00:25:50] We can find out.

Nick Capodice: [00:25:51] And then you can do the voiceover. That's like, yeah, I won all the time. Slightly edited tape. And Rebecca Lavoie [00:26:00] is the winner. Thank you all so much for this. This was this was a lot of fun. Incredible.

Rebecca Lavoie: [00:26:08] I'm so nostalgic.

Nick Capodice: [00:26:09] I am nostalgic [00:26:10] too, I think. Yeah. It's mandated that you're in the next one.

Hannah McCarthy: [00:26:13] All right.

Nick Capodice: [00:26:13] Yeah.

Rebecca Lavoie: [00:26:14] And I'm not nostalgic anymore.

Nick Capodice: [00:26:15] Maybe next time we won't ask the potato question. We'll give you some time to think about what you did. [00:26:20]

Hannah McCarthy: [00:26:20] I think we need to ask the potato.

Rebecca Lavoie: [00:26:21] Do you know what's amazing? I've already forgotten the answer to the potato question.

Nick Capodice: [00:26:35] Thank [00:26:30] you, everyone for listening to yet another Civics 101 trivia affair. [00:26:40] I am Nick Capodice.

Hannah McCarthy: [00:26:41] I'm Hannah McCarthy.

Dana Cataldo: [00:26:42] I'm Dana Cataldo.

Rebecca Lavoie: [00:26:44] And I'm four time champion Rebecca Lavoie.

Nick Capodice: [00:26:47] Our staff also includes Taylor Quimby and Marina Hankey. [00:26:50] Music in this episode from Epidemic Sound. Civics 101 is and of right ought to be a production of NPR New Hampshire Public Radio.

Rebecca Lavoie: [00:26:58] Perfect.

Hannah McCarthy: [00:27:06] I [00:27:00] was going nowhere. Going nowhere [00:27:10] fast. I know. Yeah, I do know the whole song.

Rebecca Lavoie: [00:27:12] What a hot little dope that guy was.

Hannah McCarthy: [00:27:13] Oh, such a hot little dope.

Nick Capodice: [00:27:15] Wasn't that your. Was that your first big.

Hannah McCarthy: [00:27:17] First big crush? Yes.

Nick Capodice: [00:27:19] I'm gonna just offer if [00:27:20] anybody's interested in sharing. My first super hardcore screen crush was, um, Allison Janney. Oh. Big night.

Rebecca Lavoie: [00:27:28] Wow. That's. You read very niche [00:27:30] taste as a young person.

Speaker 17: [00:27:31] Did you meet me as a kid?

Hannah McCarthy: [00:27:33] I need to amend mine. My first crush, before I really knew what a crush was. Was obviously, as is for so many people. [00:27:40] The fox in the animated Robin Hood.

Rebecca Lavoie: [00:27:43] Yeah, that's just weird.

Dana Cataldo: [00:27:44] Of course.

---

Article II of the Constitution

Article II, which lays out the powers, duties, and limits on presidential powers, is one of the most debated and reinterpreted parts of the Constitution. So what does it say?

Today we are joined by ⁠Dr. Corey Brettschneider⁠, a professor of political science at Brown, author of several books on presidential power, and co-host of the podcast The Oath and the Office. We go through each and every clause of Article II, but somehow it keeps coming back to the same 35 words.

Be sure to check out Corey's podcast ⁠here⁠.

---

Transcript

C101_Article II.mp3

Nick Capodice: You are listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And in one of the most 101 things we've ever done on this show, Hannah and I are continuing our meticulous journey through the articles in the Constitution. We have battled the Balrog of Congress, which is the very extensive article one. And now we're moving on with the job that Congress and the Supreme Court are tasked with keeping in check the gosh darn president of the United States [00:00:30] of America. Now, Hannah, I wanted to keep this episode, as we say in the podcast biz, as evergreen as possible, and that has been very difficult to do.

Hannah McCarthy: Evergreen, meaning that listeners can listen to this episode years from now. And it will still make sense because it's not, you know, super tied to current events.

Nick Capodice: Yeah. And again, it's been hard. But while we will touch on the current administration a little bit, first and foremost, we are focusing on the words. Today is [00:01:00] our top to bottom exploration of article two, what the Constitution says about the executive branch. Stick around. I want to start off with something that is not often simple to understand in the Constitution, and that's something is people's actual jobs what they do. So like, take a senator, for example. [00:01:30] Where in the Constitution does it say what a senator does?

Hannah McCarthy: Well, what we do know of their constitutional job description, that's in article one. So like senators do a ton of things. Representatives do a ton of things.

Nick Capodice: Yeah. And that job description of all those things, it is a full half of our Constitution. So what about the Supreme Court?

Hannah McCarthy: Supreme court is article three. But the supreme power of the Supremes, that is not in the Constitution. That is a power [00:02:00] they gave to themselves in 1803.

Nick Capodice: And we are going to get into all that when we do an episode on article three, by the way. But I bring all this up because article two, which lays out the executive branch and specifically the powers of the president, it's got the most succinct, most clear job description in the entire Constitution, and it's a neat 35 words. These words are the beating heart of article two. Words that have been uttered so far 74 [00:02:30] times.

Archival: I, Franklin Delano Roosevelt I, Dwight D Eisenhower, do solemnly swear that I will faithfully execute, and I will faithfully execute the office of president of the United States and will, to the best of my ability and will, to the best of my ability, preserve, protect and defend, preserve, protect and defend the Constitution of the United States. So help me God. So help me God. So help me God. Congratulations, Mr. President.

Nick Capodice: I [00:03:00] just want to start by saying, I am glad to be going on this journey with you. Hannah. Seven articles total in the Constitution. Now we conquered the first article already, and now we're kind of even going further towards Mordor.

Hannah McCarthy: I feel like, can I be Frodo in this one? I, I'm the Frodo. I, I like bearing burdens. I'm very pale.

Nick Capodice: Is Frodo pale?

Hannah McCarthy: Well, as things get harder, he [00:03:30] definitely gets paler.

Nick Capodice: You can definitely be Frodo in this metaphor. I think it's prudent to mention that I played Samwise in an eight hour production of the Lord of the rings at Summer camp production, which featured, by the way, a now very famous actor in the role of Bilbo Baggins.

Hannah McCarthy: You're not gonna say the famous actor's name?

Nick Capodice: I'm not gonna say his name. I'm just hoping he hears this and, like, remembers our friendship and gives the show a shout out. But I'm getting very distracted from our quest here. Hannah.

Hannah McCarthy: I mean, Nick, the Constitution goes ever on [00:04:00] and on down from the preamble where it began. You started by saying that the presidential oath of office was the heart of article two.

Nick Capodice: I did for a very good reason.

Corey Brettschneider: My podcast, as you know, is called The Oath in the office, and it's called that because of language in article two, which lays out word for word in a way that is distinct from any other office. What the president has to say in the first few seconds in office to even become [00:04:30] president.

Nick Capodice: This is Corey Brett Schneider. He's a professor of political science at Brown University and the co-host of the podcast, The Oath and The Office.

Corey Brettschneider: I also wrote a book called The Oath in the office, and another called The Presidents and the people five Leaders Who Threaten democracy and the citizens who fought to defend it.

Nick Capodice: So I started my interview with Corey by saying, it seems to me like a lot of stuff in article two feels kind of vague, and it's been reinterpreted [00:05:00] a lot over the years. So he brought up the oath, which is the last paragraph in section one of article two. Quote. Before he enter on the execution of his office, he shall take the following oath or affirmation, etc..

Corey Brettschneider: So on the one hand, yes, you're absolutely right. Article two is very vague, but it's very specific when it comes to the oath. So much so that when President Obama recited the oath with Justice Roberts, he flubbed some of the words.

Archival: That I will [00:05:30] execute the office of president to the United States faithfully, and I will execute. The. Faithfully the office of president of the United States. President of the United States, faithfully.

Corey Brettschneider: And will the listeners will remember this. And there was such a worry about this that they repeated the oath that night to make sure that he actually was president. That's how serious a requirement it is. It says that the president has to pledge to I preserve, protect and defend the Constitution [00:06:00] of the United States. That's what that defines the office. And we often think about the president as sort of the leader of the country. That's language that Woodrow Wilson introduced in the 20th century, kind of beyond, you know, the other branches. But what that language is meant to do is to say the opposite, that a president is not above the law, far from it is, is, is concerned with the implementation and protection of law, not just that they have to respect rights, but that they have to do more than that, right? They [00:06:30] have to preserve, protect and defend them, not just not violate them.

Hannah McCarthy: Okay. Nick, let's get into those vague parts you were talking about and all the rest. Let's do the nuts and bolts of article two.

Nick Capodice: Sure thing. Article two. It is 1023 words. That is half the length of article one. It's got four sections and it lays out the executive branch. It details the office of the president and the vice President and a bunch of other things. And here we go. Quote. The executive power [00:07:00] shall be vested in a president of the United States of America, end quote. And, Hannah, we gotta stop right there.

Hannah McCarthy: We just started. We did. We're not even out of the shire, Nick. This is as far as we've ever gone before.

Nick Capodice: If I take one step more.

Corey Brettschneider: I mean, it seems straightforward, but notice how quickly it becomes complicated. What is executive power? And that's on the one hand, you know, I think the best historical evidence suggests that the framers themselves had a very constrained [00:07:30] idea of what that power was. They thought it was executing the laws like it says.

Nick Capodice: But on the other hand, some judges and scholars have interpreted this sentence, which is called the vesting clause to me that the president is the single person in charge of the entire executive branch.

Hannah McCarthy: Right. This is the unitary executive theory, an interpretation that is tied to several recent Supreme Court decisions, specifically about who the president can and cannot fire. [00:08:00]

Corey Brettschneider: And I think it's just a weird pair, because the idea that the unitary executive is based in the text, you know, I feel embarrassed at the idea because what the text is that they're talking about is that one sentence, and it doesn't really tell us a lot. It's not like, for instance, birthright citizenship, which says, you know, you're born in the United States, you are a citizen if you talk about that too. Or I'll give an even easier example, the requirement age requirements for president or Senate [00:08:30] or the House of Representatives. You know, those are textual, very clear. And then there are provisions that are really vague and the executive power being vested in a president. I'd count that among the most vague.

Nick Capodice: All right, moving on. The next part in section one is pretty clear by comparison. The president, quote, shall hold his office during the term of four years, end quote. Now, the 22nd amendment enshrines the rule that you can only be elected two times as president, you only get two terms. And then it says quote. And together with the vice president chosen [00:09:00] for the same term, be elected as follows. Colon.

Hannah McCarthy: Colon here's how we elect the president.

Nick Capodice: Here's how we do it. This is the Electoral College. So first it goes to say that each state appoints electors and the formula for how many. I am not going to admit, Hannah, how old I was when I realized the number of electoral votes that a state gets is not just some arbitrary number based on how many people live in that state. I mean, it is tied to how many people live in your state, but it is not arbitrary.

Hannah McCarthy: The total number of senators and representatives [00:09:30] your state is allowed to have in Congress is the total number of electoral votes you get. So Texas is apportioned to have 38 seats in the House of Representatives and two senators in the Senate. So Texas has 40 electoral votes. The fewest electoral votes a state can have is three, which a few states do have. So does Washington, DC and the state with the most electoral votes and the most representatives and senators is California at 54 total?

Nick Capodice: Yeah. And those numbers aren't static. There [00:10:00] will always be 538 total. But when the census comes out every ten years, those numbers can shift during reapportionment, by the way. Hannah, did you know that the term Electoral college is not in the Constitution? Yes you did. I didn't know that. It's not even in the Federalist Papers. Like not once. Not once. It is an old term, though. The first use I could find was in the 1760s in England. Something to do with the Duke of Hanover, interestingly. Anyways, then [00:10:30] we move on to the longest paragraph in article two, how the electoral votes are tallied up, and who therefore is elected president and Vice president. Now, this chunk was amended in 1804 with the ratification of the 12th amendment.

Hannah McCarthy: Yeah. It used to be that the person who got the most votes became the president, and the person who got the second most votes became the vice president, which means that, you know, especially as elections got more and more vicious, which was pretty much from the beginning, the [00:11:00] guy who lost had to work directly with the guy who won.

Nick Capodice: Yeah, the 2024 election would have resulted under our original Constitution and President Donald Trump and his vice president, Kamala Harris. Match made in heaven. The dream team. So here is the process for how those electoral votes get counted.

Corey Brettschneider: This is where it gets complicated. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall be counted. The person [00:11:30] having the greatest number of votes shall be the president. If such number be a majority of the whole number of electors appointed. And if there be more than one who have such a majority and have an equal number of votes in the House of Representatives, shall immediately choose by ballot one of them for president, and if no person have a majority, then from the five highest on the list, the said, how shall in like manner choose the president. But in choosing the president, the votes shall be taken by the States. The representative from each state having one [00:12:00] vote. But what all this does are two things. One is the idea that the. Which seems innocuous, right when I read it like. So how boring. The president of the Senate, the vice president is, the president of the Senate opens the the votes, you know, and certifies them. That's the language that Donald Trump and John Eastman use to try to justify the plot of January 6th, because what they said was that gave the ability of the Vice president, [00:12:30] Mike pence, the ability to say these ballots are invalid, they're fraudulent. Now, it doesn't say that, but that's what they read in.

Archival: It, aides to former Vice President Mike pence told the House January 6th Committee Thursday that the conservative lawyer John Eastman, pressured pence to reject certification of the 2020 election, but the former vice president refused and repeatedly told the former President Trump the actions were illegal. Committee chairman Bennie Thompson applauded pence for resisting [00:13:00] the pressure.

Hannah McCarthy: Their constitutional interpretation was that article two gives the vice president the authority to certify or not certify votes, and if enough states are declared invalid, then this other procedure would kick in.

Nick Capodice: Exactly.

Corey Brettschneider: Which is that under the electoral vote threshold, the states vote one by one, each state getting one vote. And what Eastman and Trump had calculated was that if you get [00:13:30] through this combination of pence refusing to certify supposedly invalid ballots, just to be clear, as I'm sure your listeners know, there's no evidence for the idea that that these ballots were invalid or that there was massive fraud to, to influence the election, but they were pretending that it was. And there were Trump and his supporters were threatening pence into trying to do this all with the idea of going to the House of Representatives and kicking in this procedure that we were just reading about.

Archival: It's [00:14:00] hard to believe, Anderson, what's going on here in the United States Capitol right now? I've been around here for a long time. I've never seen anything like this. I never thought I would see an armed mob like this, break windows and get into the United States Capitol and do what they're doing, and you can see what's going on. These individuals, they should be.

Nick Capodice: I have to add here that after what happened on January 6th, 2021, Congress did pass something called the Electoral Count Reform Act that [00:14:30] clarified that the vice president's role in all of this is truly a formality of just opening envelopes and saying, who won each state? All right, the rest of article two coming right up.

Hannah McCarthy: You're listening to Civics 101. I am Hannah McCarthy, Frodo Baggins.

Nick Capodice: I am Nick Capodice slash Samwise Gamgee or Gamgee?

Hannah McCarthy: I don't know. Ask Tolkien.

Hannah McCarthy: And we are journeying through article two of [00:15:00] the US Constitution. So we've gone through the process of electing a president. What comes next?

Nick Capodice: All right, article two, section one, clause five. This next clause is about the requirements for becoming a president. So you got to be at least 35 years old. You have to have been a resident in the US for at least 14 years and, quote, no person except a natural born citizen or a citizen of the United States at the time of the adoption of this Constitution [00:15:30] shall be eligible to the office of president.

Hannah McCarthy: And everybody want to Nick Capodice trivia questions is who was the first president born in the United States of America? And Nick got me on this one the first time around. It is Martin Van Buren.

Nick Capodice: Yeah. Because technically there wasn't a United States until 1776. So, for example, George Washington was born in the colony of Virginia, but not in the United States. Anyhow, this requirement has [00:16:00] come up a few times during presidential elections. President Chester A Arthur was rumored to have been born in Canada. He was not. His father lived in northern Vermont, and he traveled between the two countries pretty frequently. Barry Goldwater. Hannah. Interestingly, did you know this about him? Goldwater was the candidate in 1964. He was born in the Arizona Territory three years before it became a state. Huh? John McCain was born in a U.S. naval base in the Panama Canal Zone. [00:16:30] And finally, Barack Obama was born in Hawaii in 1961, three years after it became a state. But due to conspiracy theories that he was actually born in another country, uh, President Obama was the subject of dozens of state and federal lawsuits attempting to remove him from office.

Archival: Donald Trump today finally submitting to the truth.

Archival: President Barack Obama was born in the United States. Period.

Archival: A seven second [00:17:00] statement after 28 minutes of build up trying to reverse a position Trump held for five years, championing a conspiracy theory.

Nick Capodice: You want to move along?

Hannah McCarthy: Yeah, I do.

Nick Capodice: All right. The next clause is about what happens if a president is removed from office by, quote, death, resignation, or inability to discharge the powers and duties of the said office. End quote.

Hannah McCarthy: The whole shebang goes to the vice president.

Nick Capodice: Yeah. Does it? Hannah, is that person the president or is that person just [00:17:30] acting like one? Is it a pipe or a picture of a pipe? After two centuries of presidents dying or nearly dying in office, and several close calls for the succeeding Veep also nearly died around the same time. This section was clarified with the passage of the 12th, the 20th, and the 25th amendment, which are all fascinating amendments that I can't get into right now. Now, penultimate clause in section one of article two, the president may receive compensation [00:18:00] for the job. That amount can't be raised or lowered during their elected term. So it has been $400,000 a year since 2001. Uh, and then there's this part they quote shall not receive within that period any other emolument from the United States or any of them, as in those states.

Hannah McCarthy: Like individual states. Right? Yeah. So this is the presidential emoluments clause.

Nick Capodice: It is. That word is one I had not heard until 2016. Emolument [00:18:30] means compensation basically payment for doing something. But this section Hannah it is crucial. There are no fewer than three emoluments clause in the Constitution. The other two are in article one. Here again is Doctor Corey Brettschneider.

Corey Brettschneider: To the founders, this was just the core. It was like the oath itself. What an emolument is, is essentially being able to profit from the office. And that is not just some abstract idea. It's really spelled out in these emoluments clauses [00:19:00] that essentially are saying you can't use the office for your own profit. And so George Washington, um, in his inaugural address, uh, says that, you know, he says, I will pledge to take no emoluments in the first inaugural. And to say the least, it's relevant to our current moment where there is, uh, you know, on this one, I'm not going to be neutral. There's a president of the United States who seems to be defying these emoluments clauses.

Hannah McCarthy: I do remember back in 2017, before we hosted [00:19:30] Civics 101, there was an episode on emoluments because everyone was talking about it.

Nick Capodice: It was such a hot topic. One reason being, when Trump was elected the first time, he did not divest himself of his myriad hotel businesses. People from all over the world stayed in those hotels. They paid for lavish things. There is a big potential to buy influence. So there were a bunch of lawsuits, and the Supreme Court finally got around to this after Donald Trump left office and said, essentially, well, [00:20:00] he's not the president anymore, so let's move on.

Hannah McCarthy: And move on. We did.

Archival: It is now official. Cnn projects that Donald Trump has been elected president, defeating Vice President Kamala Harris and making a political comeback unlike any.

Nick Capodice: One, reporter at The New Yorker said in January of 2026 that a very conservative estimate of how much money Donald Trump has made in the first year of his second term is over $4 billion. But while the Constitution says, you can't [00:20:30] do this, it does not say what happens if you do do this. There is no enforcement clause. So we too shall just move on. Last part of this section is the oath of office, which we talked a little bit about earlier, but it does bear revisiting.

Corey Brettschneider: So my favorite way of explaining it is to quote and explain the way George Washington took this oath so seriously, especially in his [00:21:00] second inaugural. It's the shortest ever given and I think the most powerful, um, inaugural address. What he says is, look, I just took the oath of office and it, you know, pledges me to, to have fidelity to the rule of law and to the Constitution. And if I violate it, I want the people assembled here to upbraid me. That's the word that he uses. Criticize me. And if I really violate it, this is my favorite part, subject me to constitutional punishment. [00:21:30] And what a, what a, what a profound moment. You know, Washington is really saying like, I'm not a king. I'm nothing like a king. I'm a temporary officeholder. And there are obligations and duties of this office that are spelled out in the oath to respect the rule of law.

Nick Capodice: Can't get more OG than George Washington. Hannah. All right, we are nearly there. The last few parts of article two. Right after a quick break.

Hannah McCarthy: We're [00:22:00] back. We're getting to the end of article two here. All right, what's left? What do we got?

Nick Capodice: All right, Hannah, we're basically at, like, what's the big battle in the Two towers? Helm's Deep.

Hannah McCarthy: Yeah, but that's. There's still a long way to go after Helm's Deep.

Nick Capodice: We're kind of at the point where Legolas sees an elephant for the first time. That's kind of where we are. We got sections two, three, and four, but those are all much shorter than section one. Section two starts with, quote, the president shall [00:22:30] be commander in chief of the army and Navy of the United States.

Hannah McCarthy: Commander in chief. But you can't declare war.

Nick Capodice: Exactly.

Corey Brettschneider: One thing to say is the framers, you know, did a lot to try to make it clear that article two was the opposite of creating an absolute monarch or anything like it. And one way that they did was they took monarchical power, in which, for instance, the ability to start a war and carry it out was held in the same person in the monarch and divided [00:23:00] them. Congress has the power to initiate or the framers use the word declare war. And now this is the other side of it. The president is the commander in chief. Once the war has been declared, he or she has the obligation of commanding the military and and and winning the war and carrying it out. Very different from the modern understanding of many presidents of both parties, I should say, and many scholars of so-called originalism, because I really don't think there's [00:23:30] any doubt about it. You know, defensive war. You know, that's one thing when a war is already underway. That's one exception to this. But aside from that, you want to start a war. That's Congress, not the president.

Hannah McCarthy: To be clear here, the last time the US declared war was 1942, when three countries were added to the original World War II Two declaration from the previous year.

Nick Capodice: Yeah. So the War Powers Resolution of 1973 dictates that a president has 60 days after a military action to get Congress's [00:24:00] approval, or you gotta get out of there. Now, the next part in this. This is all in the same paragraph is the pardon power. Pardon power is huge, to quote Grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Hannah McCarthy: Do you know how many people have been pardoned over time by presidents?

Nick Capodice: I looked it up. Thousands. Hundreds of thousands. So Andrew Johnson pardoned over 7000 former Confederates after the Civil War. And [00:24:30] Jimmy Carter, Jimmy Carter pardoned over 200,000 people for avoiding the draft in the Vietnam War.

Hannah McCarthy: And the pardon power is absolute right. Like anyone can be pardoned for anything.

Nick Capodice: Anything except for impeachment and impeached and removed. Judge or Senator or president Cannot be pardoned by a president. All right, next part. The president can make treaties with two thirds of the Senate approving it. And the president can, with the advice and consent [00:25:00] of the Senate, nominate, quote, ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States whose appointments are not herein otherwise provided for. End quote.

Hannah McCarthy: And this doesn't have to be the two thirds consent of the Senate. Just a majority.

Nick Capodice: Just a majority for appointments.

Corey Brettschneider: The president can't just pick a judge. He doesn't pick Justice Alito and put him on the Supreme Court. He doesn't even pick cabinet ministers. The attorney general, for instance, we just went through this can't just be put on permanently [00:25:30] in that position unless there is. And it's not both houses of Congress here. It's the Senate. A majority of the Senate approves. And that really is a fundamental check on the president's power. There was a debate, you know, in the 18th century, very early on, about whether or not you had to get permission from the Senate as well for removal. Um, and that has gone in the direction of the unitary executive where the answer is really no. That's up to the president. But what certainly remains, [00:26:00] and there is no debate about this, this isn't a controversial thing. Maybe the main check on monarchical power by a president is the idea that all the executive officers, judges, ambassadors have to be approved by a majority of the Senate.

Nick Capodice: The last part of section two is that the president may fill up any vacancies during the recess of the Senate.

Hannah McCarthy: Okay. How often does that actually happen?

Nick Capodice: Uh, not very often. You know, it sounds like it could be really big, but when you consider the [00:26:30] Senate isn't in recess all that much and that there has to be a vacant position, it hasn't come up a ton. The Supreme Court ruled in 2014 that anything less than ten days is too short a recess for this kind of appointment, and that it can't happen when the Senate is doing what are called pro forma sessions.

Hannah McCarthy: All right. That's the thing where just one senator goes to D.C. and gives a little speech to an empty Senate chamber on any topic they like, and that means the Senate is still in session.

Nick Capodice: Yeah, it's kind of like jiggling your mouse every [00:27:00] ten days. Section three is a fun one. Here it goes. Quote. He shall from time to time, give to the Congress information of the state of the Union and recommend to their consideration such measures as he shall judge necessary and expedient.

Hannah McCarthy: You could kind of think of the state of the Union as the president's self-evaluation performance review.

Nick Capodice: They're always like, we're doing great. The state of the Union is what is it? Most often strong?

Hannah McCarthy: I think so.

Nick Capodice: Gerald [00:27:30] Ford once said, the state of the Union is not good. It's it's not good. And then it goes on to say that the president may, on quote, extraordinary occasions, end quote, convene both houses. So this is usually to discuss an emergency potential war declaration, a nomination they want to get through, etc.. And then it goes on to say that the president may adjourn Congress when Congress can't agree when to adjourn. [00:28:00] And this has never happened. Never, never, never. And then that the president receives ambassadors and public ministers. And finally, Hannah, last little part of section three. It is a teeny, tiny little sentence. I am going to take a dramatic pause before reading this. He shall take care that the laws be faithfully executed.

Hannah McCarthy: That's really the whole job.

Nick Capodice: That's it.

Corey Brettschneider: Big one. I think maybe the most important and neglected sentence [00:28:30] because notice what it's doing, right? It's using very similar language to the oath. The oath talks about faithful execution as well of the office. And here we're talking about faithful execution of the laws. So that language really, really matters.

Nick Capodice: This is called the take care clause, and it is maybe the most debated, most widely interpreted sentence in the whole Constitution. So is it a power? Can the president do anything in the service of executing laws, or is it a restriction? [00:29:00] A president has to be faithful to the Constitution when executing laws and tied to that take care clause. Hanna is our very last paragraph. What happens when you don't take care? The final section of article two is section four, which says, quote, the president, Vice president and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. [00:29:30]

Hannah McCarthy: And while no president has been removed from office, three presidents have been impeached Andrew Johnson, Bill Clinton and Donald Trump twice. And if I'm not mistaken, Nick, the charge has always been high crimes and misdemeanors every time.

Nick Capodice: Always different high crimes and misdemeanors, but none so far for treason or bribery. So we have talked a lot about limits in this episode, and impeachment is one of those. The [00:30:00] framers debated long and hard about what should justify an impeachment. Ben Franklin said it was for when the executive, quote, rendered himself obnoxious. It's like the Mark Twain.

Hannah McCarthy: I think he got to the point. I think that's what Ben Franklin did.

Nick Capodice: He was just like.

Hannah McCarthy: I love reading his stuff. Yeah. He's like, come on.

Nick Capodice: Alexander Hamilton said in Federalist 65 that it was, quote, those offenses which proceed from the misconduct of public men or, in other words, [00:30:30] from the abuse or violation of some public trust, end quote. But whatever the cause, it is a limit.

Corey Brettschneider: We often talk about presidential power, but notice what this is about. It's all about what article two really is about is presidential duties, obligations to obey the law, limits on what the president is able to do. And I think that is consistent throughout, even in places where we thought the power was unlimited. Think of the way people talk about the war power as if it's unlimited [00:31:00] or the pardon power. And even there there are limits, certainly in the war power, more controversially in the pardon power. And I think that's all consistent with the idea that the framers weren't creating a monarch. They thought they were creating this limited branch that was at most, you know, not more than co-equal to the other branches. They thought it would be at the founding, at least, even weaker. And, um, you know, the language is in there, the language of obligation and duty [00:31:30] rather than the language of power.

Nick Capodice: And that, my old friend, is article two. We are like three quarters done with the whole Constitution. Like the rest are very important. There's a lot more articles, but they're very short. We are like almost to Mount Doom.

Hannah McCarthy: Which is I mean.

Nick Capodice: Isn't that the part?

Hannah McCarthy: Yeah. But to say like, [00:32:00] we barely got anything left, just just the Mount Doom part. We're almost at the part where Sam is like, maybe I should carry it for a while.

Nick Capodice: Share the load.

Nick Capodice: Wait, you could do a thing. We could do a thing. We could do a flip, a flip. See, we could do a verso where you do the next article and I help you out.

Hannah McCarthy: Okay. You're on. You got this, man. You got this.

Nick Capodice: This episode was made by me Nick Capodice with you, Hannah McCarthy. Thank you always.

Hannah McCarthy: Thank you.

Nick Capodice: Huge thanks to Corey for getting [00:32:30] us through the whole article. I got a link to his podcast, The Oath and The Office. In the show notes, he and John Fugelsang get much deeper into the stuff we touched on today. You should check it out. Civics 101 staff includes Rebecca LaVoy, Taylor Quimby, Marina Henke and Dana Cataldo. Music. In this episode from blue Dot sessions, Epidemic Sound and the unimpeachably talented Chris Zabriskie. Civics 101 is a production of NPR, New Hampshire Public Radio.

Nick Capodice: Oh, [00:33:00] you know, we're at that battle where the ghosts come out.

Hannah McCarthy: But it's it's Frodo and Gollum and Sam just just walking.

Nick Capodice: We're kind of like at the Elvish waybread point. We're kind of at like when the ghosts come out of the mountain and win the fight. We're kind of at the point where Legolas sees an elephant for the first time. That's kind of where we are. Uh, we got sections two.

Hannah McCarthy: An elephant.

Speaker 17: Or elephant? [00:33:30]

Nick Capodice: Isn't it called an elephant?

Hannah McCarthy: Oliphant.

Nick Capodice: Oliphant.

Hannah McCarthy: Like Timothy.

Nick Capodice: Like Timothy Olyphant.

Hannah McCarthy: It's not all that.

Nick Capodice: I thought Legolas was like...it's an elephant.

Hannah McCarthy: He has an English accent.

Nick Capodice: It's an elephant.

Nick Capodice: He wouldn't be like, oh. there's an elephant, sir.

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SCOTUS Decision Roundup

The Supreme Court wrapped it's 2025-2026 term and headed off on summer recess, so we're running through the biggest decisions from the bench. What did the court have to say about our constitution, our federal government and our individual rights?

This year they got to everything from Birthright Citizenship to mail-in ballots to executive agencies, cementing some principles and throwing others into legal limbo. A lot can change in a year, especially when nine people have the power to profoundly affect constitutional democracy.

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Transcript

Hannah: [00:00:00] This is Civics 101 from NHPR. I'm Hannah McCarthy.

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

Hannah: [00:00:05] And today, while the robes are away, the civic's hosts [00:00:10] are gonna play. Here is what the Supreme Court had to say this year. Yeah, this year. But it didn't rhyme. The [00:00:20] 2025 2026 Supreme Court term wrapped up just before July 4th. A k a the 250th [00:00:30] birthday of America. Now the Supreme Court issues decisions about cases throughout the year. Just like July is the big blockbuster month for Hollywood, [00:00:40] June tends to be the blockbuster month for the biggest, most anticipated, often most consequential decisions from the Supreme Court.

Speaker 3: [00:00:48] Yeah, they do seem to wait [00:00:50] until.

Nick: [00:00:50] Like, the very last minute to tell us what they think about everything, whether or not some or all of our lives are going to change. [00:01:00]

Hannah: [00:01:00] What they don't tell us, Nick, is why we have to wait till the end of term to hear certain decisions. It's probably because those are the cases [00:01:10] that require the most deliberation. That and well, maybe they're saving major constitutional releases for the last minute so they can immediately pack their bags [00:01:20] and go on summer vacation.

Nick: [00:01:22] Well, it's easier to avoid the reviews. Anna, if you're on a private island drinking out of a coconut, I guess.

Hannah: [00:01:28] I mean, if I were writing scripts with [00:01:30] the power to profoundly change American constitutional democracy. I would probably take a little time away. All right, speaking of. Let's get into it. The major [00:01:40] releases of the 2025 2026 Scotus season. You ready?

Nick: [00:01:45] Got my popcorn. Hello [00:02:00] hello. Welcome back everyone. This is Civics 101.

Hannah: [00:02:04] I'm Nick and I'm Hannah. And we are going to start with one of the biggest things to come out of the court this year. [00:02:10] The Christopher Nolan's Odyssey of Cases. Trump v Barbara.

Nick: [00:02:18] A journey to the very [00:02:20] meaning of home.

Hannah: [00:02:26] This one came out on June 30th in the last batch of [00:02:30] the summer releases. The plot. Trump signed an executive order to end birthright citizenship for children who are born in the United States to parents [00:02:40] who are not in this country lawfully. Three individuals, all non-citizens of the United States, challenged this order on behalf of both themselves and [00:02:50] all people with similar situations. These three challengers, Barbara, Susan, and Mark.

Nick: [00:02:57] All three of whom chose to remain anonymous. [00:03:00]

Hannah: [00:03:00] That is right. All three remained anonymous throughout this entire thing to protect themselves and their family, and their situations vary. Our titular character, [00:03:10] Barbara, is a Honduran immigrant with a pending asylum application living in New Hampshire. She was pregnant with her daughter when Trump's order came down in October of 2025. [00:03:20] Susan is a Taiwanese citizen living in Utah whose child, born while Susan was in the United States on a student visa, had a [00:03:30] pending passport application. And finally, Mark, a green card applicant living in Florida whose undocumented wife had given birth in the spring before [00:03:40] the Trump order. Their baby had a U.S. passport. And now the issue is, is that passport's validity in question.

Nick: [00:03:49] So we've [00:03:50] got stories from across the country, across the spectrum of immigrant and citizenship status. This ensemble cast class action case is all hinging on [00:04:00] one question. If you're born here, are you an American? Regardless of your parents story, with very few specific exceptions for children [00:04:10] of diplomats and kids born in unincorporated territories.

Hannah: [00:04:13] And in the end, the Supreme Court chose to stick with the authors of the past. Six of the nine justices [00:04:20] decided that Trump's order was unlawful and birthright citizenship remained intact.

Nick: [00:04:34] Well, [00:04:30] as big as this blockbuster decision was, though, Hanna, it pretty much instantly [00:04:40] spurred a bunch of sequels. There's a proposed bill for ending birthright citizenship in American territories, one that would classify undocumented people in the US as, quote [00:04:50] unquote, invaders to try and turn Trump's order into a law, and one that would change the Immigration and Nationality Act to get around birthright citizenship. [00:05:00] Also, two new executive orders from Trump attempting to narrow the definitions of birthright citizenship and prevent pregnant non-citizens from traveling to the U.S. [00:05:10] and giving birth.

Hannah: [00:05:11] Now see the trouble with retelling a story from an executive, or even a congressional perspective, is that you're [00:05:20] dancing into constitutional territory, which is why you have a lot of experts saying eliminating birthright citizenship would require a constitutional amendment, [00:05:30] not just a law or an executive order.

Speaker 4: [00:05:34] In a world where nine people interpret the supreme law of the land, [00:05:40] several lawmakers are wondering, can we avoid doing that thing that's basically impossible and get away with it?

Hannah: [00:05:48] And who knows? [00:05:50] They are certainly going to try. We will have to see if that one somehow How gets the green light. All [00:06:00] right. Moving on. Because there were two other big releases that same day with majorly [00:06:10] different plots.

Nick: [00:06:11] Yeah. Real barbenheimer.

Hannah: [00:06:13] We had a political drama by the name of National Republican Senatorial Committee, the Federal Election Commission, [00:06:20] Nrsc v FEC.

Nick: [00:06:25] For those who are familiar with Citizens United and the widening gyre [00:06:30] of political spending that followed, this might be of some interest.

Hannah: [00:06:34] This case should be of interest to any American who cares about money in politics. Before [00:06:40] this decision, there were limits on how much a political party could spend when they coordinated with a presidential or congressional candidate, meaning the party [00:06:50] doesn't write the candidate a check, but they foot a portion of the bill for goods and services the candidate needs to campaign.

Nick: [00:06:58] Like paying for a campaign [00:07:00] ad, for example.

Hannah: [00:07:01] Yeah. Historically that has been the primary coordinated expense. But sometimes coordinating just means that a party will pay invoices of [00:07:10] various kinds for a candidate. And again, Nick, there used to be a limit on how much they could actually pay, a limit that the Supreme Court [00:07:20] upheld back in 2001. Now, here are the plot twists that helped this case [00:07:30] to get to the Supreme Court. The National Republican Senatorial and Congressional committees sued the FEC. They said campaign finance law has changed [00:07:40] since 2001. We have super PACs now, for one thing, superPACs that exist only because the Supreme Court changed the way it thinks about First [00:07:50] Amendment rights and campaign finance law.

Nick: [00:07:53] There's that Citizens United cameo.

Hannah: [00:07:55] When their First Amendment argument failed at the appeals court level. The Supreme [00:08:00] Court took it on. And here's the question Scotus had to answer. Do these FEC limits violate the First Amendment, [00:08:10] making our 2001 ruling on limits irrelevant? Now the answer. Yes, 6 to 3. The limits do not exist.

Nick: [00:08:22] Which [00:08:20] is what makes this one kind of rhyme with Citizens United and what followed. Back then, the Supreme Court did not get [00:08:30] rid of the limit on individual direct campaign donations, and this year they did not get rid of the limit on party direct campaign contributions. They just [00:08:40] made it possible for giant entities to spend unlimited money to get a candidate elected.

Hannah: [00:08:46] With an important addition. Super PACs [00:08:50] are forbidden from coordinating with candidates. They have to do their business totally independently. But political parties, they are very [00:09:00] much allowed to be in the editing room. All [00:09:10] right. Next on the list is a double feature. West Virginia V, B, p, J and little V Hickox.

Nick: [00:09:18] This is two cases in one.

Hannah: [00:09:19] Yeah. [00:09:20] These were two situations in which two transgender athletes in two different states experienced the same legal barrier to participating in girls and women's sports, [00:09:30] namely, their states prohibited trans women and girls from participating in women's and girls sports in grade school and college. Both of these girls [00:09:40] sued, and when both of their cases were appealed to the Supreme Court, the Supreme Court combined them.

Nick: [00:09:45] And this happens a lot. Brown v Board of Education. The landmark case that [00:09:50] ruled segregation in schools, was unconstitutional. That was a combination of five cases. And in this one, it's because the legal question is the same in both.

Hannah: [00:10:00] Right? [00:10:00] Both cases sued on an equal protections basis, although one also included a title nine claim.

Nick: [00:10:08] Title nine being the law that prohibits [00:10:10] sex based discrimination in schools.

Hannah: [00:10:12] Bingo. The Supreme Court, in another 6 to 3 decision upheld these state transgender sports bans. So what that [00:10:20] means is that states do not have to enact these bans.

Nick: [00:10:24] But if lawmakers or voters want to, they can.

Hannah: [00:10:29] And the [00:10:30] Supreme Court was clear. This decision does not apply to other educational situations, only to sports. What this does mean, however, is that in states [00:10:40] like Arizona, Washington and Colorado, where state and gender based bans are on the ballot this year, at least portions of those bands will definitively [00:10:50] be lawful if the ballot measures pass.

Nick: [00:10:58] All right. So those were [00:11:00] the three final releases of this year.

Hannah: [00:11:02] Cases with major consequences across the civic, social and political genres.

Nick: [00:11:08] So you know, what I find interesting about [00:11:10] these cases is that all of them, in one way or another, relate to elections, right? You've got a case that changes who will and will not be given [00:11:20] citizenship, and therefore will be or will be not allowed to vote one day. How much money can be spent to influence a political campaign, and the validity of proposed [00:11:30] policy that some people will vote on this November?

Hannah: [00:11:33] Right. And even for the people who are not directly affected by these decisions, the outcomes of these cases may [00:11:40] change what your state and local candidates campaign on, what voter blocs they pay more attention to, what election laws they pass in the future, what ballot measures [00:11:50] they may introduce the next time around, and of course, which candidates actually get a shot at the big time, and which are [00:12:00] drowned out by the spectacularly funded candidates. A party wants to see in power. All right. [00:12:10] The court did a lot more over the course of last term, and I'm going to lay some more plot summaries on you, so stay tuned. That's coming up after the break.

Nick: [00:12:44] We're [00:12:40] back. You're listening to Civics 101 from Wnbr. And today we are looking back at the Supreme Court's major releases [00:12:50] while they are off on their summer recess, probably sitting in a spa, Eating cucumbers and listening to water sounds.

Hannah: [00:12:58] Have you ever been to a spa, Nick? [00:13:00]

Nick: [00:13:00] No, not per se.

Hannah: [00:13:03] You know, there are often cucumbers and there are often water sounds. I will give you that. I should also say that the justices [00:13:10] do often teach and give lectures, and have to chip away at the emergency docket, aka the shadow docket over the summer. And their clerks most definitely [00:13:20] do not get the summer off. But why not spa cucumbers?

Nick: [00:13:30] All [00:13:30] right, so let's get into it. You let us in on the last three decisions that the court released before they headed off into the sunset. What else did the Supreme Court get up to this year?

Hannah: [00:13:40] I [00:13:40] got a slasher for you, Nick. Trump v slaughter.

Nick: [00:13:47] That one's too easy. Hannah.

Hannah: [00:13:51] In [00:13:50] 2025, Rebecca Slaughter was working at the Federal Trade Commission.

Nick: [00:13:56] The agency that enforces antitrust law.

Hannah: [00:13:59] Right. [00:14:00] Antitrust is designed to protect consumers and stop businesses from getting involved in all sorts of hijinks that would mess with the market. Other businesses and [00:14:10] us, the consumers. Like all other independent federal agencies, the FTC was created by Congress. And like all other independent agencies, [00:14:20] it was designed to make high stakes decisions about high stakes issues without politics getting involved. So there [00:14:30] are five FTC commissioners and they get appointed to seven year terms. This board of commissioners is bipartisan by law. So out of five, you [00:14:40] can only ever have three commissioners of one party. And there is one important piece to this whole independent agency thing. Most of them, including [00:14:50] the FTC, specify three things that could get agency leadership fired by the president, inefficiency, neglect [00:15:00] of duty or malfeasance in office.

Nick: [00:15:03] And that's actually written into the act, the law Congress passed to create the FTC. [00:15:10]

Hannah: [00:15:10] Yeah. It is actually written in part of the law. These agencies are not just supposed to be protected from Partizan decision making. They are supposed to be protected [00:15:20] from presidential political whims.

Nick: [00:15:24] Supposed to be. Sounds like somebody's got a case of the spouses.

Hannah: [00:15:29] Sounds [00:15:30] like somebody has a guess where this is going.

Nick: [00:15:33] I have a feeling somebody revived his apprentice catchphrase for this case.

Hannah: [00:15:38] And you would be right. In 2025, [00:15:40] the two Democratic commissioners at the FTC, one of whom was Rebecca Slaughter, were fired by Donald Trump. And he was vague on [00:15:50] the reason why, except to say that these Democrats did not align with the administration's priorities. Slaughter sued, saying that Trump violated [00:16:00] the law. So this case goes all the way up to the Supreme Court, and they ruled 6 [00:16:10] to 3 that the law is wrong. It violates the separation of powers clause in the Constitution. The president is in charge of the executive branch and [00:16:20] can fire at will. As the opinion reads, the president is the chief magistrate with whom the buck stops.

Nick: [00:16:29] So fire [00:16:30] anybody. There are a lot of people in the executive branch.

Hannah: [00:16:35] Well, we're not talking about every single executive branch employee, many of whom have [00:16:40] civil service protections. There are other ways, of course, to eliminate people in lower positions, for example, withholding federal funding, which this administration has done [00:16:50] to great effect. Now, Nick, here is the question. This is a decision about the FTC that applies to the FTC. But what [00:17:00] about the dozens of other independent executive agencies that have similar or identical for cause removal provisions for the people who lead [00:17:10] them?

Nick: [00:17:10] I mean, if the court is saying the FTC's for cause provision is unconstitutional, doesn't that suggest that [00:17:20] the for cause thing is unconstitutional across the board?

Hannah: [00:17:24] Well, Nick, on the very same day that the court released slaughter stripping [00:17:30] protections for the people in charge of one independent agency, they released another opinion that did the exact opposite thing for [00:17:40] another independent executive agency. This one is called cook.

Speaker 4: [00:17:48] One Chef's Journey to independence [00:17:50] in the high stakes world of the Executive kitchen.

Hannah: [00:17:56] In cook v Trump, the setup is similar. Trump tries to [00:18:00] fire a head of an independent federal agency, claiming without proof or due process that she committed mortgage fraud. Not a commissioner at the FTC, but [00:18:10] a governor on the board of the Federal Reserve by the name of Lisa Cook. Lisa Cook sued. A federal judge blocked her removal from the job while her [00:18:20] lawsuit progressed, Trump said to the Supreme Court, hey, just let me fire her. And the Supreme Court said, 5 to 4. No, you cannot randomly fire [00:18:30] a governor on the board of the Federal Reserve.

Nick: [00:18:32] As in the central Bank of the United States. Why is that an exception?

Hannah: [00:18:37] Yeah. Here is the strange [00:18:40] thing. Nick. Scotus says Trump cannot randomly fire her because the law that established the Federal Reserve includes [00:18:50] a clause that requires a firing to be quote for cause.

Nick: [00:18:56] Mm. So that is weird, Hannah, because [00:19:00] I'm pretty sure you just told me that on the very same day the Supreme Court said the for cause clause in the FTC law was unconstitutional. [00:19:10]

Hannah: [00:19:10] You heard me correctly. Yes, I did just tell you that. So what exactly is going on here? Some say that the logic in this latter [00:19:20] case extends to other independent agencies. Others say, well, hang on, if the court made an exception for the Federal Reserve, will there be exceptions [00:19:30] for other agencies too?

Nick: [00:19:32] Did the court explain what makes the Federal Reserve so special?

Hannah: [00:19:37] All right. So here is how Chief Justice Roberts sees [00:19:40] it. There's a line, in his opinion, for Trump v cook, where he says that removing the protections we have for the Federal Reserve leaders would be out of step with the [00:19:50] law and out of step with, quote, our nation's tradition of central banking. Protected from political interference. [00:20:00] Thing is, Nick, the whole point of independent executive agencies is to make sure that high stakes decisions are made by [00:20:10] people who aren't worrying about the politics of those decisions. They're not supposed to be worrying about whether the president and his party don't like it. They're supposed to [00:20:20] be worrying about the economy, the law, the American people. They're supposed to be playing the long game. So here on out, the question is going to be which [00:20:30] agencies are worthy of protection from politics and which aren't. And that is a question the courts are likely going to have to decide [00:20:40] and probably more than once. All [00:20:50] right. Let's pivot here. This next case is a vampire tale. So [00:21:00] Hawaii has some pretty restrictive gun laws, including [00:21:10] one that says concealed carry permit gun owners cannot bring their gun onto private property that is open to the public like a store, a restaurant, etc., [00:21:20] without permission from the owner.

Nick: [00:21:23] Oh, I get it. It took me a second to get why this is a vampire story.

Speaker 5: [00:21:28] Won't you invite me in? [00:21:30]

Hannah: [00:21:30] Exactly. This is known as a vampire rule.

Nick: [00:21:35] Really?

Hannah: [00:21:35] Yeah, really. Whether you're packing fangs or heat, you need explicit permission [00:21:40] to cross the threshold. By the way, California also has a similar set of even stricter vampire rules. And so what happened is this gun rights advocacy [00:21:50] groups and gun owners in both states. California and Hawaii sued, arguing that these laws violate the Second Amendment. The cases got consolidated [00:22:00] and ended up before a panel of ninth Circuit judges. Now, these judges said that Hawaii's law was consistent with its legal history and why he got to keep their [00:22:10] vampire law. California's, however, was inconsistent. Their vampire law had to go. So what ended up getting appealed to the Supreme Court was the [00:22:20] decision on Hawaii's law.

Nick: [00:22:23] Count Dracula versus state of Hawaii.

Hannah: [00:22:27] Wolford v Lopez.

Nick: [00:22:29] I tried [00:22:30] for.

Hannah: [00:22:40] The [00:22:40] Supreme Court agreed in a 6 to 3 ruling that vampire laws do indeed violate the Second Amendment. And to be clear, this decision is also [00:22:50] going to impact similar laws in Maryland, New York and New Jersey.

Nick: [00:22:54] I do have to ask an important question. In all seriousness, Hannah, did the majority [00:23:00] opinion use the word vampire?

Hannah: [00:23:03] It did not.

Nick: [00:23:04] Real missed opportunity there.

Hannah: [00:23:09] Okay, Nick, just [00:23:10] a couple more major cases for you here. Some political sagas, if you will, in what promises to be a high stakes midterm. The court established some [00:23:20] major direction for how things are going to play out. First, Watson, the Republican National Committee. What happened here is that the Republican [00:23:30] National Committee claimed that federal law says ballots have to be received on Election Day in federal elections. The majority, 5 to [00:23:40] 4, disagreed. Federal law. They said, only defines when a ballot must be cast, not when it must be received.

Nick: [00:23:48] And mail in ballots [00:23:50] are huge this season, and this is the court affirming that states can count mail in ballots that are postmarked by Election Day, even if they arrive [00:24:00] after Election Day.

Hannah: [00:24:01] That is correct.

Nick: [00:24:02] So just to clarify, because I'm actually not sure about this. How late can ballots actually be counted?

Hannah: [00:24:08] That is what makes this a states [00:24:10] are in charge of elections case. This decision is not saying that you have to accept postmarked ballots after Election Day. It is saying that states are allowed to have laws that [00:24:20] say, for example, we will accept your postmarked ballot up to five days after the election. Okay, last full treatment here. And this is a big [00:24:30] one, Louisiana v Calais. And this is based on a true story that goes like this. Black voters in Louisiana have long [00:24:40] been fighting to change congressional maps, the tools that divide states into voting districts. The way these maps were drawn, black voters said, diluted [00:24:50] their vote.

Nick: [00:24:51] As in, black voters had less of a say in their elections. The maps were drawn without giving them as much of a say as the white [00:25:00] majority.

Hannah: [00:25:01] Right. And the Voting Rights Act, the landmark statute of 1965, is specifically designed to stop this from happening. States are not allowed [00:25:10] to have standards or practices that result in a citizen having their voting rights denied or abridged. Keep that part in mind because I am going to come back to it. [00:25:20] Black voters sued in Louisiana, and a new map with a new majority black district was created.

Nick: [00:25:27] Right. This essentially gave black Louisianans [00:25:30] an extra opportunity to elect the candidate that they wanted. And it worked, right?

Hannah: [00:25:35] By all appearances, yes. For the first time in history, two black Louisianans [00:25:40] won congressional seats in the same election, and then a group of self-described nonblack voters sued, claiming this new district was a racial gerrymander. [00:25:50] This case went all the way up to the Supreme Court, and the Supreme Court agreed with the group of non-Black voters.

Nick: [00:25:59] As in [00:26:00] the Supreme Court agreed that this new district violated the Voting Rights Act.

Hannah: [00:26:05] Yes, but the court did not stop there. Justice Samuel Alito [00:26:10] wrote that in order to succeed with a Voting Rights Act challenge, you have to prove that a state had the intent to [00:26:20] discriminate.

Nick: [00:26:21] And you didn't have to prove that before.

Hannah: [00:26:23] Well, the Voting Rights Act, specifically section two, stops states from having standards and practices [00:26:30] that result in votes being denied or abridged. Remember I told you I was going to come back to that results in not [00:26:40] intends to, but after Louisiana v Calais, that is all over. You now have to prove that [00:26:50] your state is motivated by racial discrimination.

Nick: [00:26:54] But how do you prove that a state can give any number of reasons for drawing a district one way or another? [00:27:00]

Hannah: [00:27:00] Well, that might be what Justice Elena Kagan was asking herself when she wrote her dissent. She said, quote, the consequences are likely to be far reaching and grave. [00:27:10] Today's decision renders section two all but a dead letter in the states where that law continues to matter, the states still marked by [00:27:20] residential segregation and racially polarized voting. Minority voters can now be cracked out of the electoral process. Now, [00:27:40] Nick, I have to say, there are plenty of other not quite blockbuster cases that the court took on this year as well, cases that are certainly a big deal. I [00:27:50] mean, they made it all the way to the Supreme Court, but with decisions that were narrow or even kind of ambiguous. Take the Colorado conversion [00:28:00] therapy case.

Nick: [00:28:01] Colorado banned conversion therapy. A conversion therapist sued. The court said the ban was unconstitutional.

Hannah: [00:28:10] This [00:28:10] was a narrow one. The therapist who sued was a talk therapist. So the court said, all right, come on guys. We are literally talking about speech here. [00:28:20] This is a cut and dry free speech violation. And Justice Elena Kagan even went on to say, you know, if the ban had been worded differently, [00:28:30] this might have been a much more difficult decision. And then there was a case that said that Trump could not use the International Emergency Economic Powers Act to impose [00:28:40] tariffs. But the decision did not stop Trump from using other paths to impose tariffs. There was a ruling that said that police can enter a home without [00:28:50] a warrant if they are doing it to provide emergency assistance. But the cops have to exercise, quote, objective reasonableness.

Nick: [00:28:59] Ou [00:29:00] objective reasonableness. What is that? Hannah, how do you define that?

Hannah: [00:29:05] Well, I mean, that's literally a case by case question, right? A lot of Supreme Court [00:29:10] decisions might be totally fascinating to law buffs or the courts slash businesses slash people it directly affects or to Civics 101 hosts, but not [00:29:20] quite grabby enough for the average citizen to sit through.

Nick: [00:29:31] All [00:29:30] right. Well, have we got anything major brewing for next year?

Hannah: [00:29:36] Oh yeah. There is a climate injury case that will probably decide [00:29:40] whether big energy companies can be sued by states for the costs of the damages from flooding and wildfires and drought, etc..

Nick: [00:29:48] Oh, wow. So it is literally [00:29:50] you guys cause climate change and it's messing up our state. Give us money.

Hannah: [00:29:54] Yeah. So one way or another, this will be a huge decision for the long term future of the country. [00:30:00] There's another case about a lawful permanent resident who was held by Ice for 21 months without a bond hearing. And the question is whether that was unconstitutional. The [00:30:10] court is first gonna decide whether they can even decide on this case.

Nick: [00:30:16] Why wouldn't they be able to? They tend to be able to [00:30:20] do a lot.

Hannah: [00:30:21] Well, the man who was held has since been released, so the court might decide the case is moot. Basically, no problem here anymore. But if [00:30:30] they do take up the case, that could have massive consequences for immigrant rights. So far, the court has agreed to take on [00:30:40] 25 cases. There will be more, and they will figure out what they're going to add to the list when they are finally back from feeling the sand between their toes and the wind in their hair.

Nick: [00:30:49] And eating [00:30:50] those spa cucumbers.

Hannah: [00:30:51] We are gonna get you a spa day ASAP. This [00:31:00] episode was produced by me, Hannah McCarthy with Nick Capodice. Dana Cataldo is our digital producer. Marina Henke is our producer. Taylor Quimby is our interim executive producer. Music [00:31:10] in this episode comes from Epidemic Sound. If you have questions about America, democracy, the Constitution, the courts, the executive branch, Congress, or any of [00:31:20] the other stuff that really matters and has a lot of explaining to do, you can ask us about it at our website. Civics101podcast.org. Civics 101 is a production of NHPR [00:31:30] New Hampshire Public Radio.

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What is communism, socialism, and fascism?

With the midterms coming up, these words are being uttered more and more each day. So what does it really mean when we call someone a socialist, communist, or fascist? Where did these ideologies come from, and why do we have ideologies in the first place?

Today we speak with Patrick McGovern, professor of political science at ⁠Buffalo State University⁠, and Susan Kang, professor of political science at ⁠John Jay College of Criminal Justice⁠ and host of ⁠Left On Red.

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Transcript

Nick Capodice: Hello everyone. Nick Capodice here from civics 101. So this January, a democratic socialist, Zoran Mamdani, was sworn in as the mayor of New York City. And that party, the Democratic Socialists for America, the DSA. It has been growing. In 2016, about 6000 Americans were registered as members of the DSA, and now their numbers are [00:00:30] over 100,000. Several members of the DSA won their primaries. They are running for office in the upcoming 2026 midterms. And in response, members of the Republican Party are not just using the word socialist in their campaigns against them, they're switching it out with another word.

Archival: Michael will stand up to the radical left communists in Congress, and he will always put America first, and he's going to put Wisconsin first.

Archival: We are fighting right now in Congress over whether we're going [00:01:00] to maintain our status as a constitutional republic, or we're going to trade that in, dismantle the foundations and go down this dark road of death to communism. This is not a game. Everybody needs to understand these crazy little mini mamdani's who are popping up all around the country. They are. They are a danger to you and your family.

Nick Capodice: And tying all this together. When Mayor Mamdani visited with President Trump at the white House, he was asked about his feelings regarding Trump and a third word.

Archival: He asked about your comment, calling the president a fascist. Um, [00:01:30] and your answer was, both President Trump and I have been clear about our positions and our views. Are you affirming that you think President Trump is a fascist?

Speaker 5: I've spoken about..That's okay. You can just say, okay...Okay.

Archival: It's easier. It's easier than explaining it. I don't know.

Nick Capodice: Socialism, communism, fascism. It is a scant three months until the midterm elections, and we're all gonna hear this trio of words a heck of a lot more in those months. [00:02:00] So we want to make sure everyone is on the same page. What do these words mean? What do they not mean? Today on Civics 101 from HBR, it's all about the isms. So stick around.

Archival: Hurry! Step right up, folks. Here's the answer to your problems, doctor. Utopias. Sensational new discovery ism. Ism will cure any ailment of [00:02:30] the body.

Nick Capodice: Do you recognize that voice, Hannah?

Hannah McCarthy: The voice of Doctor Utopia. No, Nick. I don't recognize it.

Nick Capodice: It's Frank Nelson.

Hannah McCarthy: Who?

Nick Capodice: Wait. Let me try this. Do you recognize this? Yes, yes.

Hannah McCarthy: Oh. That guy.

Nick Capodice: That guy. The yes guy.

Hannah McCarthy: I know, I know a guy.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are tackling three isms. This [00:03:00] is a trio that sees a lot of use and misuse in the media and on social media.

Archival: We will never let socialism destroy American health care.

Archival: According to a new survey, 70% of American millennials say they'll likely vote socialist, and 1 in 3 of them view communism favorably.

Archival: The leader of the American military compared the president of the United States to hitlerian fascism.

Nick Capodice: We are talking socialism, communism [00:03:30] and fascism. Words that you or I, Hannah, or even you, gentle listener, might misuse with the best of intentions.

Hannah McCarthy: Okay, Nick, each of those words on their own are college courses.

Nick Capodice: You're not wrong, Hannah. So this is going to be as light of a touch as I can manage.

Hannah McCarthy: Hang on. Before you start. What was that thing you played with? The guy peddling isms?

Nick Capodice: Oh, yeah. That is as good a place to start as any. It is from a cartoon called Make Mine Freedom. It was a cartoon funded by [00:04:00] the Alfred P Sloan Foundation in the 1940s. It is a jocular short where we learn how great the American way of business is. The scene I played for you there had the shady Doctor Utopia peddling them bottles of isms. And these Americans see what life is like once they get a taste.

Archival: I'll take this case to the Supreme Court. The state is the Supreme Court. Our decision is as follows. No more private property, no more. [00:04:30]

Hannah McCarthy: You wait. What is the ISM cocktail? Communism. Socialism.

Nick Capodice: Interestingly, Hannah, it is not named or specified once in the entire movie, but this is clearly an anti-communist piece. But whatever the ism is we're talking about today. All isms at their core are ideologies.

Patrick McGovern: So ideologies are frameworks. There are ways of organizing the way we think and engage, uh, society [00:05:00] and political power structures.

Nick Capodice: This is Patrick McGovern, professor of political science at Buffalo State University. And he gets a very special shout out.

Hannah McCarthy: Why is that?

Nick Capodice: Patrick is responsible for teaching political theory to the person we have had on our show more than any other.

Hannah McCarthy: You mean Dan Cassino from Fairleigh Dickinson University?

Nick Capodice: I do indeed.

Hannah McCarthy: Ah, thanks, Patrick.

Nick Capodice: Thank you Patrick. But back to the episode. Patrick told me why we have ideologies, what they do in the first place.

Patrick McGovern: They provide [00:05:30] us with. If you think about the human brain as having, you know, the, the, the, the reptile brain that says run like hell. Uh, and then the brain that sits on top of that says, well, let's think about this. Ideologies are in the run like hell thing. They're there. They're there to help us simplify, filter and deal with an onslaught of data that we, that we get hit with coming out of our political realm, coming out of the social world we engage in. So these are things that help us understand what's coming [00:06:00] at us. And if you look at anybody who's defining this, it's they're deeply within us. They are part of who and what we are. Someone like Karl Marx would say about ideologies. We don't know their ideology. We simply think one. Other people think this way, think the same way we do. And if they don't, they're bad. It's that easy. Um, black and white. Good over here, bad over there. So ideologies help us organize those things.

Hannah McCarthy: Okay, so ideologies are the labels we adhere to that help guide lots [00:06:30] of other choices we make.

Nick Capodice: Yeah. And labels that we attach to other people that we may disagree with. And all three of the isms we're talking about today were created in direct contrast to another ism.

Patrick McGovern: If we're going to talk about friends and enemies, all of those were organized primarily against liberalism.

Hannah McCarthy: Liberalism now not liberal as in left wing, but liberal as in the old school definition. The freedom of the individual is the most important [00:07:00] thing.

Nick Capodice: Absolutely.

Patrick McGovern: We in the United States call it libertarianism. And that that's a whole nother show. Uh, but the liberalism that we get from someone like the English, um, political thinker John Locke, writing in the late 1600s, promotes the idea of, of the individual as coming prior to society that the individual societies are made up of atomized individuals. Society is just a collection of individuals. So when you organize [00:07:30] government, government has to be restricted from impinging upon the individual pursuing their own interest.

Nick Capodice: Last thing on ideologies, generally, before I get into any one of these in particular, Patrick posits that the notion of the United States having one is relatively new.

Patrick McGovern: One of the things I think my students and most people just don't understand. And that's it's okay. But we just taught this way is that the nation state, as we organize, we're organized politically, internationally. [00:08:00] And, you know, the way we look at the world today, we are members. We're citizens of the United States, the United States. That's something we we only come to recognize after the Civil War. That's what the Civil War was about prior to it. We call it these United States.

Nick Capodice: But after the Civil War, we really start to run with this idea of the U.S. as a nation state, because it is a lot more effective to get soldiers to join [00:08:30] and fight for a country and what it stands for than for your town or your state to do the same.

Patrick McGovern: So what happens is we start seeing the development of nation states, getting in cahoots with economies, organizing society in such a way as to make them better at projecting their power into the rest of the world, particularly Europeans. The question becomes, what's what's the best way of doing that? And how do you avoid some of the problems that come with it? And one of the problems that comes with it, [00:09:00] and this is where socialists and Marxists kick in and say, hey, when you look at that economy that you think is fueling everything, one, you're making some people super rich and you're destroying the lives of other people.

Hannah McCarthy: Okay, we're getting to how the economy works here, making the wealthy wealthier and hurting the non-wealthy at the same time. Are we straying into our first ism?

Nick Capodice: We are indeed Hannah: socialism.

Susan Kang: I define socialism as a political movement that seeks [00:09:30] to equalize political, social, and economic power within capitalist society.

Nick Capodice: This is Susan Kang, professor of political science at John Jay College of Criminal Justice.

Susan Kang: I'm a member of the New York City Democratic Socialists of America. And also for fun. I also co-host a podcast called left on Red.

Hannah McCarthy: Left on Red is a very funny name for a podcast about socialism.

Nick Capodice: Well, as I am a thousand year old vampire, I don't really get the joke, Hannah, but I sort of do. I asked [00:10:00] Susan, though, what the goal of socialism is. What are socialists trying to do to me?

Susan Kang: The fight for socialism in like, you know, our contemporary context would be promoting rights for workers, social and economic rights for regular people, whether it be like guaranteeing housing, health care, education, things like a clean environment. Did I say child care? Uh, and lots of things that we in our current society think of as things you pay for. Right. Because [00:10:30] I'm also a scholar of human rights. So human rights are not just the idea that you have a right not to be discriminated against, which is of course also fundamental to socialism in my mind, but also that you don't have to have value in a capitalist market economy to be able to have your basic needs met. And so that's like a really minimalist view of socialism.

Hannah McCarthy: Okay. So Susan identifies as a socialist.

Nick Capodice: She does.

Hannah McCarthy: Now, when I think of extreme socialism, [00:11:00] I think of things like a system where nobody owns property and everything is distributed equally. Is that what she's advocating for?

Nick Capodice: Absolutely not. There are dozens of different kinds of socialism.

Susan Kang: My own family, for example, my grandmother lived in what is now North Korea. They lost land. There was a lot of repression. You know, there was starvation, like, you know, under Stalin, for example, there was attempt to create a new society through force. And like, no one that I know who calls himself a socialist wants [00:11:30] to do something like that. Like we know that really radical, top down, state mandated social economic reforms, they don't work. Right. What we need is to build a broad consensus among people who think, yeah, this is what we want.

Patrick McGovern: One of the things I like to point out to people that if you, you know, you don't like socialism. All right, then don't read Dickens. That anger that you see in Charles Dickens against the factory owners, Marx [00:12:00] is writing the same thing. Just they're doing it different ways, but it's the same anger. And again, this is particularly this time that the rise of the textile mill, the rise of automation. We're not quite there yet. But it's you know, you can see it beginning to happen. Child labor, the reason you have kids working these looms is their little hands work faster and can get into the machinery. Oh, the kids hand is ripped off. Yep. Too bad. Go beg. There's no there's no social net. So you had people who were making the argument [00:12:30] that, okay, we've got this rise of the nation state. Maybe we can use it to provide a baseline of protection against the citizens that you're asking to commit to the nation state.

Nick Capodice: Even though I'd be hard pressed to find someone who referred to the U.S. as a socialist country, we do have an awful lot of socialist policies, places where the government steps in to help people out.

Hannah McCarthy: Okay. Off the top of my head, I'm thinking, uh, like food assistance programs, [00:13:00] unemployment insurance, Medicare, Social Security, the mail, the mail.

Susan Kang: The U.S. mail, like they get stuff there. Right. And we take it for granted, but it's really nice. What if I offered you 25? I don't know, 50 odd cents to deliver this thing to my friend in California. That would never work. There's no market for that.

Nick Capodice: And there's one big, big one that I never before thought of as socialist.

Patrick McGovern: Just get on Google and type in biggest discretionary spending U.S. [00:13:30] government. And what do you get? That is the spending outside of debt maintenance and Social Security that are mandated. You have to pay into that. What's the next thing? Okay. It's defense. You and I are not going out and buying a B-2 bomber. We can't, we cannot. You know, France cannot buy a B-1 bomber from us. There's one group that's purchasing that's that's the United States military. That's socialist. That's government buying [00:14:00] these things for us.

Susan Kang: Capitalists have to work really, really hard to go against that existing consensus to tell them that this is going to be not in your favor. Having these kinds of basic rights are going to mean that you hard working American are going to get cheated, when in actuality, the cheating is already there.

Nick Capodice: Again, a reminder here Susan identifies as a socialist. We're sharing her political viewpoint here. But I have to add, it's not an uncommon one.

Susan Kang: It's the wealthy who are hoarding their wealth, hiding it offshore, [00:14:30] refusing to pay their share of taxes, um, doing things like kicking people off Medicaid, like hundreds of thousands of people are now being kicked off Medicaid. Other social programs which in no way will benefit anyone, not even like, you know, employers. So we see that this is like an ideological war that has to constantly be fought, because otherwise, if we were allowed to present our ideas, then we would win. Um, because they're popular ideas.

Hannah McCarthy: Okay. I'd like to move on to a more specific [00:15:00] form of socialism, one that the U.S. has certainly been at odds with over the years. Communism.

Nick Capodice: Ah, yes. Communism. We're going to get to that as well as fascism right after the break.

Hannah McCarthy: And Nick, speaking of free things for the common good.

Nick Capodice: Oh, I see where this is going.

Hannah McCarthy: Civics 101 is and always will be as long as I draw breath free, but it relies on listener support. If you have the means, donate what you like at our website, civics101podcast.org dot org. We're [00:15:30] back. We're doing a gentle touch on a bunch of isms today. And Nick, we were about to dive into the system of government that provides from each according to their ability, to each according to their need.

Nick Capodice: Top marks to you, Hannah. Let's do a minute on communism.

Archival: Now the world begins to learn the truth about communism. Family ties are discouraged. The state is supreme. Religion is the opiate of the people. [00:16:00]

Nick Capodice: The basic definition of communism is a system based on the ideals presented by Karl Marx and Friedrich Engels work, The Communist Manifesto. And the big thing you got to know about it is that it removes all class.

Hannah McCarthy: Like there's no more upper class, no more working class, no more so-called lower class, etc..

Nick Capodice: Right. And everyone owns everything together, leading to the eventual removal due to irrelevance of private property, of money and [00:16:30] ultimately the state itself. But like we said with socialism, Communism is also not so cut and dried.

Patrick McGovern: When you talk about communism that comes out of Marxism, you get Leninism, you get Maoism, you get Trotskyism, just to name a few.

Nick Capodice: Again, this is Patrick McGovern, professor of political science at Buffalo State University.

Patrick McGovern: They all have different views. For example, Lenin had no problem with the state. The revolution was the people seizing [00:17:00] the state, using the state to organize workers, and then eventually the state goes away. But as you can see with Stalin, Stalin had no problem with keeping the state right in place. And this is one of the breaks between Stalin and Trotsky. That's no, no, no, no, no, that's not we don't want the state. We can see what the problems with the state is this. It's authoritarian and classic. Marxists are not authoritarian.

Nick Capodice: To my understanding, Hannah, no country has yet successfully had a Marxist style government. [00:17:30] Again, here's Susan Kang, professor of political science at John Jay College of Criminal Justice.

Susan Kang: In my mind, communism is what various states, like various countries of the world, participated in before the end of the Cold War, in which there was an attempt to use a powerful state to radically transform society, to fit socialist ideas. Sometimes people use the term actually existing socialism or state socialism to describe this. But we could think of this as like [00:18:00] East Germany, Soviet Union, like the Eastern Bloc, maybe Vietnam, North Korea, and China, obviously, and some people in some places it was very Stalinist, um, with like a really powerful totalitarian state. Um, but the general idea was that there was an ideology of socialism that justified the whole project, but the practices were not necessarily ones that someone like myself would ever endorse [00:18:30] or say we're good, right? So for example, Stalin thought that most farming in Soviet Union was done through privatized means. And he was like, no, let's do something called collective farming. And if you don't fall in line, I'm going to send you to the gulag. And so he it was very top down, not a lot of appreciation for local knowledge.

Nick Capodice: And a lot of people protested and were indeed kicked out or sent to the gulags. Those were forced labor camps where over 18 million [00:19:00] people were imprisoned. And this, of course, had horrible repercussions.

Susan Kang: And so his great Soviet collectivization of agriculture led to some of the most devastating famines in Russian history, in which, like, millions of people died. So that's not something that socialists would endorse, at least not contemporary socialists.

Patrick McGovern: Marx wouldn't look at China, Marx wouldn't look at the Soviet experiment or Vietnam or Cuba and say, yeah, that's yeah, that's what I had in mind. No, those people are those people are miserable. That's not what [00:19:30] he had in mind. He had in mind a radical democracy where we all own the means of production.

Hannah McCarthy: All right. In the US, we have historical moments like the Red scare, the Cold War. These are things that supported the idea that America is a nation state, does not espouse a communist ideology, that it is, in fact, anti-communist. But there was a Communist Party in the U.S., wasn't there?

Nick Capodice: There was. And I got to bring this up because it happened just a few blocks from where [00:20:00] I live. A historic marker dedicated to the birthplace of a member of that party has very recently been removed.

Archival: I am dead set against this, and I think it's an embarrassment that we have a program that allows us to put communists on historical markers and then say, oh, that's part of our history. It's not part of my history.

Patrick McGovern: Certainly in the 1930s in the United States, there were a lot of people who were, you know, members of the Communist [00:20:30] Party flirting with the Communist Party. And the fear was that they were just agents of the Soviet Union. And certainly the Soviet Union was trying to make them agents. That that's clear. Um, but once a lot of people caught wind that that was going on, they hightailed it out of there.

Nick Capodice: So a historic marker dedicated to the birthplace of Elizabeth Gurley Flynn was removed. Not during the Cold War, not during the Red scare, but a few weeks ago. And New Hampshire Governor Chris Sununu [00:21:00] signed off on the removal. Flynn was a leader in the IWW, the Industrial Workers of the World Labor Union, as well as a founding member of the ACLU, the American Civil Liberties Union. And yes, she was indeed a leading member of the Communist Party USA. She went to prison for that. She was accused of advocating the violent overthrow of the government, and she defended herself at the trial, saying, quote, never have I and not now do I intend to advocate the overthrow of the government by force and violence. Nor do [00:21:30] I intend to bring about such an overthrow. She died during a visit to Russia in the 1960s, but as per her wishes, her remains were shipped to be buried in Chicago, right next to Emma Goldman.

Patrick McGovern: Not all people who claim Marxist roots, of course, are not endorsing what Stalin was up to. And look how many people left Marxist left the Soviet Union, because that's what he was up to. They knew what he was doing, and they got the they got out of there.

Hannah McCarthy: Okay, [00:22:00] Nick, last ism here. Fascism. It's a little strange to include it in this list, because communism and socialism share a lot of principles. But fascism does not share those same principles.

Nick Capodice: I agree they do not share principles. I picked these three specifically because of their prevalence in social media, and we've been in the historic vein for a while, Hannah, but I have to let our listeners know that in this last part, we're going to touch on today's political climate and our guests view [00:22:30] of it. And we don't do that too often on the show. Okay. Okay. First, I'm going to start with a contrasting piece of propaganda to make mine freedom. Here's a clip from another film called Don't Be a Sucker. It's an anti-fascism movie produced by the U.S. Department of War in 1947.

Archival: I'm speaking to you as an American American, and I tell you, friends, we'll never be able to call this country our own until it's a country without without Negroes, [00:23:00] without alien foreigners, without Catholics, without Freemasons.

Archival: What's wrong with the Masons? I'm a mason. Hey, that fella's talking about me. And that makes a difference, doesn't it?

Hannah McCarthy: Wait. The protagonist is going along with fascist ideas until he hears they're against Freemasons.

Nick Capodice: Yeah. Not really a persecuted group today, Hannah.

Patrick McGovern: Or ever in [00:23:30] in getting ready for this podcast, I was reading up on all of this and where people are worried about the ism of Marxism, communism, fascism had a much bigger impact on the world. More countries are willing to engage in fast fascist tendencies, authoritarian totalitarian tendencies than, you know, a successful communist revolution.

Hannah McCarthy: Do you have, like, a Webster's definition of fascism?

Nick Capodice: Yeah, this one's harder to define. [00:24:00] There's no like fascist manifesto, and it's not a term anybody really uses to describe themselves. But Patrick gave me a good breakdown.

Patrick McGovern: Okay, um, I'm going to say it's an authoritarian, nationalist ideology that's characterized by strong central government, a dictatorial leader, a strict control of the economy. It suppresses political dissent. It's aggressive, it's militaristic, and it has a clear [00:24:30] sense of an enemy who has caused a crisis in the nation. And the only there's only one person that can solve that crisis. And everybody has to get on board with with the leader, whether you call it IL IL Duce, you call him the Führer, you call him the man. Um, and again, it's almost always a male figure. It's very, very gendered in that regard.

Hannah McCarthy: Getting on board with the leader is an idea that has been around since we have had leaders. But [00:25:00] when does that word fascism arise as an ideology?

Patrick McGovern: Fascism came out of Italy in the 1920s, um, under Benito Mussolini, um, who was trying to organize again like everybody else. He's looking around saying, you know, Italy kind of didn't do so well in World War One. So Benjamino Mussolini comes along and says, I'm gonna make you the. You know, I'm gonna make you a reincarnation of the Roman Empire. We're going to be important again.

Hannah McCarthy: That [00:25:30] is a pretty bold claim. How does he go about doing that?

Nick Capodice: Well, first, by concentrating on massive weapons production and equally massive industrial production and also framing this Italy first ideology. We are the best.

Patrick McGovern: The other thing is that fascism ties in with the rise of national communication systems, film, radio, um, propaganda. During World War One, nation states figured out how to get millions [00:26:00] of people into the trenches and be willing to walk into a meat grinder and not give a second thought about it. Fascists do this extremely well.

Nick Capodice: And unlike our other isms, fascism allows people to get very, very wealthy.

Patrick McGovern: Fascism is all about the nation state. It does not challenge private property. That's one of the things where it's going to come after Marxism and say, no, we're going to let the private, especially large capital [00:26:30] holders. We're going to let them be. We're going to let them get rich so long as they're supporting our regime's aim, and that is to make Italy great again.

Nick Capodice: And as we all know, Mussolini wasn't the last fascist.

Hannah McCarthy: Right? Many leaders since have used the idea of the nation above the individual or race above the individual to gain power.

Nick Capodice: Yeah, like Adolf Hitler. And while Hitler and Mussolini are dead and gone, and the fascist ideologies of Italy [00:27:00] and Germany that led to World War Two are no longer tied to those nation states. Fascism itself is not gone from the earth.

Patrick McGovern: One of the things we tend to forget is that with the end of World War Two, elements that bring about fascism were not defeated. They did not go away. Um, So that's that's always a threat. One of the, you know, Fascism's biggest targets is democracy. They don't want our vote. They want our participation, [00:27:30] but they don't want our vote because that they don't want an in a sense of individuality. It's be a good soldier. Strap on, you know, this national bird and take up arms.

Nick Capodice: And Patrick says that if we're looking at fascism today in America, the enemy isn't necessarily another nation.

Patrick McGovern: It may not be taking up arms, you know, go off to Afghanistan and fight, but take up arms against the people who are driving our country apart. But but you certainly opened up [00:28:00] a can of worms. It's like, well, what what fascist elements do we see in the United States? Um, you know, if I come out and say, Trump, you're going to get a boatload of, you know, you're, you're going to be overwhelmed. Uh, but certainly that tendency that I am the answer. We are in crisis. I am the answer. God. Guns and Coca-Cola or you know, don't don't challenge, um, industry unless it's Disney and they're making us woke or [00:28:30] something. But the people who won't get on board with them, the people who are on board with them are clearly good and everybody else is bad. That certainly shows, you know, at at least a tendency towards authoritarianism.

Hannah McCarthy: Patrick said the ideology of fascism didn't end after the war. But does that mean we're stuck with it?

Nick Capodice: Maybe. Maybe not. I mean, I don't want to end an episode on a shrug, but this is truly something [00:29:00] that comes and goes.

Patrick McGovern: This has been a long slog, I would argue, since World War Two. Um, and, you know, it came in waves. And, you know, American politics is always on this pendulum and we happen to be swinging towards a not so discursive mode right now. Um, my hope and history tells us will swing back, but what's going to take us to swing back? Maybe [00:29:30] it was January 6th that we say, oh, okay, we've gone, we've gone far enough.

Nick Capodice: Well, that is it for this triumvirate of words on Civics 101. I'm off to go read some Marx, Engels, Hegel, Locke and Machiavelli. This episode was made by me. Nick Capodice with you, Hannah McCarthy. Thank you. Our staff includes Marina Henke, Rebecca LaVoy, and Taylor Quimby. Music [00:30:00] in this episode from Epidemic Sound, blue Dot sessions and the wondrous Chris Zabriskie. Civics 101 is a production of NPR New Hampshire Public Radio. All right.

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Article I of the Constitution

Maybe you’ve read the Constitution a ton of times. Maybe you’ve never read it. Maybe you even have one somewhere in your home! But, even for us civics lovers, there are times we forget what exactly is in it. However, by the end of this episode, you’ll know each and every part of the largest, and most important, section.

Article I, which lays out the powers and restrictions of Congress, is massive. It comprises a full half of the written Constitution, and it’s the part the framers spent the most time debating. Today we’re going through the entire thing, section by section, with the inimitable Linda Monk, JD. Linda is a constitutional scholar and author of The Words We Live By, An Annotated Guide to the Constitution and The Bill of Rights: A User’s Guide.

Correction: In an earlier version of this episode, Nick said there would never be more than 34 senators up for election at once. However, if there were any special elections due to senators not finishing their term (which happens a lot) that would bring it above 34. Or if we had more states! Kudos to longtime listener Arturo Magidin who caught this mistake, and Nick regrets the error.

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Transcript

C101_Article I.mp3

Nick Capodice: Hannah. Do you remember when this happened?

Khizr Khan: Donald Trump, you're asking Americans to trust you with their future. Let me ask you, have you even read the United States Constitution?

Hannah McCarthy: Oh yes, I do.

Nick Capodice: Do you want to tell everybody what we're listening to here?

Hannah McCarthy: Oh, I sure do. This was at the Democratic National Convention in the summer of 2016. And on stage, the father of a soldier [00:00:30] who was killed in the Iraq war pulled out a pocket constitution.

Khizr Khan: I will gladly lend you my copy.

Hannah McCarthy: And in a rare moment of everyone actually thinking about the Constitution, this moment went kind of viral.

Nick Capodice: So the speaker, Khizr Khan, was referencing the constitutionality of Donald Trump's proposed complete and total shutdown of all Muslims entering the United States. And [00:01:00] I'm bringing this up, Hannah, because at that time there was no Civics 101 podcast. And for me personally, you know, I'd read the Constitution a few times in my life at that point. I didn't have a tremendous grasp of it. And I'm wondering if there's anyone out there who's like me, you know, the Nick back in 2016, someone who cares about this country and cares about politics and has a pocket constitution, but, you [00:01:30] know, doesn't 100% know what exactly is in it and where, you know, but today, today we're gonna fix that. If you do not know what's in article one of the Constitution, by the end of this episode, you will I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And from NPR, this is Civics 101. Stick around.

Hannah McCarthy: All right, so article one, Nick, [00:02:00] we're doing the whole thing.

Nick Capodice: The whole thing from stem to stern, from the crown to the toe. Top full. Hannah, I am not gonna recite all of article one to everyone out there, but I did want someone to walk us through it. I wanted someone who knew this thing cold.

Linda Monk: So when we're looking at the U.S. Constitution, written in 1787, we have to remember that this is a document in writing with words.

Hannah McCarthy: Oh, Linda [00:02:30] Monk.

Nick Capodice: Linda Monk, JD, the Constitution. Lady Linda is a constitutional scholar. She has written many books on the Constitution, including the words We Live by. Your Annotated Guide to the Constitution and the Bill of rights, A User's Guide. And she started our little chat with telling me about how Americans wanted a physical, written in ink Constitution.

Linda Monk: The American people, pretty early on, actually, even back to 1641, [00:03:00] and the Massachusetts body of liberties wanted their rights written down. Wanted the government's powers written down. So unlike the United Kingdom, where they have a constitution that has different written documents that are part of it, it also has a body of kind of unwritten mores and values that they consider [00:03:30] their Constitution. But it's unwritten. And to Americans, that would be really unacceptable.

Nick Capodice: So that's how we got a written constitution, starting with a preamble and then article one, which is the beating heart of our government.

Linda Monk: One of the things we look at when we look at article one, which sets up the legislative branch, is that it is at least half of the written constitution.

Hannah McCarthy: Half of the written constitution half.

Nick Capodice: If you go down to the National [00:04:00] Archives in DC and you look at that original parchment.

Hannah McCarthy: Which is stretched dried animal hide, by the way, which I don't know why I didn't know until I was looking at the plaque next to it in Washington, DC.

Nick Capodice: Well, if you are at the archives looking at the actual Constitution, article one makes up two full pages and the whole Constitution is only four.

Linda Monk: Big part of that fourth page is the signatures. So especially when you take out the signatures and you look at articles one through [00:04:30] seven, what did they say? Article one with the legislative branch is well over half of the entire document. It's much larger than the executive branch, which is second, and then the judicial branch, which is third. So just looking at the the framers of the Constitution, people who actually wrote the document. And then when you look at the legislative history of it, too, It's very clear that they intended for Congress [00:05:00] to be the dominant branch. And Congress gets the most words and the most explicit powers.

Hannah McCarthy: You know, this is interesting because I think people think of the three branches as sometimes being equal, at least in theory, and they check each other equally. But you know, they're not. And it sounds like they were not intended to be.

Nick Capodice: Yeah. Congress was the top dog in 1787. So let us get into [00:05:30] it. Article one comprises ten sections, and we're going to go through each one. And section one is so short it's the only one I'm going to read verbatim. Here it goes. Quote, all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.

Linda Monk: Section one sets the basic template of that. It Establishes the legislative branch and it even names that [00:06:00] legislative branch to be Congress. Well, now, was that a brand new term that they never heard before? No. Congress had been called Congress under the Articles of Confederation. It had even been called the Continental Congress during revolutionary times. So this idea that there's a legislative body that's really running things is an old idea. It goes back to England, when England had its civil [00:06:30] war 100 years previously to the American Revolution. And the big contention there is, is the king's power going to be absolute, or can Parliament, the legislative branch of England, have power? And in fact, today it's known as parliamentary supremacy. Parliament is supreme over the rest of the government.

Hannah McCarthy: Okay. Section one just says there's a thing called the Congress, and it's got a House and a Senate, and they have all the legislative [00:07:00] powers, meaning they make the laws.

Nick Capodice: Yeah. Clean and simple. Sections two and three. I'm going to kind of mix them a little bit here. They lay out how the two chambers work respectively. Section two is the House of Representatives and section three is the Senate. And here's where we got to jump back a little bit and look at the debates that were going on when the Constitution was written.

Linda Monk: In the Constitutional Convention itself, held in Philadelphia. There were two major issues that [00:07:30] were at stake, and the resolution of those issues was going to determine whether the Constitution would actually be approved, both by the delegates there and later by the American people.

Nick Capodice: Now, let's remember at this point, there was a pre constitution, constitution called the Articles of Confederation, which is the framework that was set up during the American Revolution.

Linda Monk: The first was under the Articles of Confederation every state was equal, and like 13 quarreling. [00:08:00] Brothers and sisters, nobody wanted to give up any of their power. They wanted to all be equal in the. The new form of government. Now larger states like Virginia, New York, Pennsylvania, um, weren't really keen on that idea because they thought, well, we have more people, we have, um, a greater population. And, and so it's only fair that our people get [00:08:30] more representation. So the resolution of that particular dispute was what's called the great compromise, where you had two houses in Congress.

Hannah McCarthy: And the great compromise was that the House has representatives from each state according to its population. A k a proportional representation. And with the Senate. You have senators representing the people, but it's two from each state.

Nick Capodice: And that the [00:09:00] tax liability is portioned out using the House model. That is, the amount that the federal government collects in taxes from people is directly tied to how many people live in your state. And then we run into a famous or rather infamous quandary.

Linda Monk: And the second compromise, which many Americans still today find abhorrent. But, um, it was the compromise that was made, rightly [00:09:30] or wrongly, was okay. When you count the population of these states, who are you going to count? Because they quickly agree. Well, we're going to count a lot of people that we would call citizens, but they don't vote. And that's white men without property. That's women, that's children. Children are still citizens even though they don't get to vote whole categories. And so the question then becomes, what about [00:10:00] enslaved people?

Hannah McCarthy: Southern states want to count enslaved people toward their populations, because that means they will have more representatives in the House.

Nick Capodice: Yes. And they do not want to count them when it comes to taxes, because the fewer people a state has, the lower their tax burden is.

Linda Monk: And here's a deep conflict. Irony that is difficult for modern Americans to understand is the [00:10:30] issue was, would enslaved people be counted as full persons for the purpose of both population and taxation, or would they not be counted as persons at all? Some northern states says, wait a minute. You say that enslaved people are your property. Well, then, if you're going to count your slaves for for representation, then we're going to count our horses and cows. That makes the same sense. The dilemma is, [00:11:00] is that if you count enslaved people fully 100%. Does that end slavery? No. And who does it give power to? It gives power to the very states that are holding people in bondage. So again, we think today about oh three versus 3/5 of a person, which was the compromise that came up. Okay. We're going to say 3/5 of all other [00:11:30] persons.

Hannah McCarthy: The 3/5 clause was in section two, but it was abolished upon the passage of the 14th amendment in 1868. Now, the 14th amendment, of course, granted birthright citizenship to people, meaning that if you were born here in this country, you were a citizen of this country.

Nick Capodice: Absolutely. But if you're looking at article one, as it stood when the Constitution was written. That was how it apportioned out representation and taxes. Representation being how [00:12:00] many people each state gets in the house. And if you read it, you will notice Hannah. They never even once used the word slavery. It just says a free person counts as one and everybody else counts as 3/5.

Linda Monk: You're free to disagree with it. But the rationale was we're not talking about ending slavery. We're not talking about ending slavery. We're talking about political representation and power.

Nick Capodice: So here is the formula, the mapping out of how many [00:12:30] representatives a state can get in the house. Quote, the number of representatives shall not exceed one for every 30,000. End quote. The average member of the House in the 18th century represented about 25,000 people.

Hannah McCarthy: So right now there are 435 members of the House of Representatives, and that is where it is staying. Unless someone passes another act or law, because that's where the number was capped in 1929.

Nick Capodice: Yep.

Hannah McCarthy: Just out of curiosity, though, if they had not capped [00:13:00] it, Nick, where would we be right now? How many members of Congress would there be a lot.

Linda Monk: Today, a member of the House represents about 750 000 people, which is pretty phenomenal. I think using that original proportion, Congress would be somewhere around 5000 representatives.

Hannah McCarthy: 5000.

Nick Capodice: 5000. The House would need to be about 11 times bigger anyways. Section two also says that members [00:13:30] of the House serve for two years, that they have to be at least 25 years old. They have to live in the state that they represent, and they have to have been a citizen in the US for the last seven years. And finally, the last part of section two, we get to a power that the House has all to itself.

Linda Monk: The House has the ability to impeach. Impeach means charge. That means that there's a charge laid against them, and it's done in the House of Representatives. That's where it [00:14:00] has to begin. And this applies to officers, officials of the executive branch and of the judicial branch.

Hannah McCarthy: And to be clear, impeaching someone does not mean removing someone from office. Three presidents have been impeached so far, but so far none of them have been removed from office.

Nick Capodice: Yes, and we are going to get to that removal a little later in the next section, section three, which is all about the Senate. Two [00:14:30] senators from each state, they serve six year terms. And originally you did not used to have any say whatsoever in who your senator was. You didn't vote for him. Your state's legislature chose senators, no election at all. And, unsurprisingly, wealthy and powerful people usually got the job.

Linda Monk: Now, at one time in American history, the Senate was called the Millionaires Club because it was believed that state legislatures would just pick [00:15:00] a millionaire to. That was one of their benefits was to get the state legislature to put them in in the Senate. Um, there's other reasons. The Senate is called the Millionaires club still today in terms of net worth. What was changed is the 17th amendment then gave direct election of senators. So that's another one of those examples where the Constitution of 1787 was made more democratic [00:15:30] in the sense of the people. The everyday people who could vote were allowed to directly choose more and more of the offices.

Nick Capodice: Again, two senators from your state, no matter how big or how small it is. Next interesting thing about the Senate is their length of term. Now, Linda already mentioned that it's six years, but the Senate is on sort of a round robin rotation, so only one third of the Senate is up for election every [00:16:00] two years. Sort of maintaining a status quo like a this is how we do things around here kind of vibe.

Hannah McCarthy: Kind of like Theseus ship.

Nick Capodice: Yeah, I've had the same broom all my life. Just change the handle and the bristles. Oh. That's a good joke.

Linda Monk: And the Senate has the vice president. This is very unusual. You have in [00:16:30] the Constitution a member of two branches. The vice president is in the executive branch, but he's also considered the president or she is also considered the president of the Senate, which is a very influential job. And when the Congress is divided or the Senate is divided. The vice president can do tie break, make tie breaking votes. And that has happened repeatedly.

Hannah McCarthy: How repeatedly?

Nick Capodice: Well, as of right now, [00:17:00] July of 2026, ties in the Senate have been broken by the Veep 306 times. The vice president also tallies the electoral votes in presidential elections. And then we get to the nuts and bolts of who can serve as a senator just a tad more persnickety than the House. You have to be 30 years old, at least live in the state you represent and have been a US citizen for the last nine years. Now back to impeachment. The House starts it and the Senate [00:17:30] finishes the job.

Linda Monk: The Senate then tries the impeachments so the House makes its charges and the House will even act as prosecutors before the Senate. The Senate really acts as like the jury would in terms of um, having the vote of whether or not the person is guilty and should be removed from office. And that's not a simple majority vote. That's a two thirds vote. Uh, the House can impeach [00:18:00] by majority, but the Senate needs a two thirds vote to remove from office. And that's supposed to be whiz bang. Thank you, ma'am. We're done. We'll see how, um, since thus far, no president has been successfully removed from office, uh, how that would actually play out.

Nick Capodice: All right. How are we doing, Hannah?

Hannah McCarthy: I'm feeling good. And that's it for section three.

Nick Capodice: That's it. Only seven to go, and we're gonna get through [00:18:30] those right quick after a short break. You are listening to civics 101. We are talking about the Constitution. We're clogging through the entirety of article one piece by piece. Where were we before we stopped?

Hannah McCarthy: We were about to get to section four.

Nick Capodice: Section four. Okay. Here again is constitutional scholar Linda Monk.

Linda Monk: Section four is times, places [00:19:00] and manners of elections. What it says is that the times, places and manners of elections. And by the way, this is all federal elections, including House, Senate and the president um shall be done by the States.

Hannah McCarthy: States determine the how, where and when of elections they do.

Nick Capodice: This is how we have things like ranked choice voting in Maine and Alaska, for example. It is entirely up to the states.

Hannah McCarthy: Except, except.

Linda Monk: Except when [00:19:30] Congress wants to make those decisions. In my opinion, as a scholar, Congress should make some of those decisions to get us more uniform, and they absolutely have that power. But the states would still thus far administer the elections. And right now, until Congress makes other provisions, state standards about when you count votes and how you count votes, etc., varies from state [00:20:00] to state. And there have been some challenges of that.

Hannah McCarthy: So this is why there are often differences in how different states handle various elements of the voting process. Different rules for mail in ballots, different timelines for counting votes, different rules for absentee voting.

Nick Capodice: Yeah. Or which states allow same day registration and which ones don't.

Linda Monk: And thus far they've been those variations among states have been upheld. But there's [00:20:30] big movement certainly within the current administration to change that.

Nick Capodice: All right. On to section five. Section five is all about procedure in the House and the Senate. How stuff works operationally. And that includes Meeting people after elections. As in, you know, they won the election, they're now a senator or they're now a member of the House of Representatives. You've got the job, kid. Now, this section can read like a little bit of administrative housekeeping, but the first line is [00:21:00] an important one. Quote, each House shall be the judge of the elections, returns and qualifications of its own members, end quote. And this this is where things can get a little tricky, because what that is saying is if the House decides they don't want to seat a newly elected representative, they don't have to.

Linda Monk: It's happened before it happened, um, around reconstruction when suddenly the the former Confederates, [00:21:30] including Confederate generals, were pardoned very quickly by President Andrew Johnson. We're having elections. Wanted to be seated back in the Senate and the House and the Republican majority at that point. Now people call them quote unquote, radical Republicans, but they were the ruling majority at that time said, wait a minute, wait a minute. We're not going to have people that were just trying to kill us two years ago and get rid of Congress [00:22:00] to suddenly, okay, we we forgot come on back, you know. And so the Reconstruction Congress used this provision, section five, to say, wait a minute. We don't acknowledge these elections. And they refused to seat these neo-confederates. And there weren't even neo-confederates. They were just Confederates still in their eyes. They had taken an oath of loyalty to the government as part of their [00:22:30] pardon. But guess what? They had an oath of loyalty as military people if they were in the United States Army before. So we already know they've broken one oath.

Nick Capodice: This happened again during the Civil rights movement. A black legislator named Adam Clayton Powell was accused of mismanaging his campaign funds. So the House majority refused to seat him.

Speaker 7: Adam Clayton Powell was having some work done in a dentist chair today. When he got the news. The Supreme Court had agreed to hear his case and [00:23:00] agreed to decide if Congress had the power to keep him out of his seat. Congress generally feels it is totally sovereign in these matters, and that the courts have no right to ask any questions or give any opinions.

Nick Capodice: There was a whole tangle of a back and forth, and it eventually ended in Powell winning a special election to fill his own vacant seat. All this to say, Hannah, in the words of Battlestar Galactica. All this has happened before, and it could happen [00:23:30] again.

Speaker 8: It's not exactly what they say in Battlestar Galactica.

Hannah McCarthy: So say we.

Nick Capodice: All. What do they say in the Battlestar?

Hannah McCarthy: All of this has happened before, and all this will happen again.

Speaker 9: So say we all. Where's my Cylon detector?

Hannah McCarthy: You need to watch Battlestar Galactica again.

Linda Monk: But it just goes to show that at a time when the validity of elections are being challenged, right or wrong, when you create enough public doubt about what's happening, who gets to [00:24:00] decide? And in the case of the House and the Senate, it's the House and the Senate. And, um, one of the questions is, in this particular climate, who gets to decide the majority that's already in power gets to decide, oh, well, you new people that are coming in, we're just not going to see you. We're not going to have a what what would it be now, the 108th Congress or 112th Congress, whatever the number is, that [00:24:30] kind of possibility for stalemate. So we're living in a time where the stress tests, as they say, on the US Constitution, are phenomenal. And in my experience as a constitutional scholar, when that happens, it's really the people that make the ultimate decision.

Nick Capodice: Last thing about section five, and it's a big one. It's that the House and the Senate make their own rules.

Linda Monk: Section [00:25:00] five also says that the House and the Senate, in addition to determining the outcomes of elections, makes its own rules and procedures. And when it comes down to what piece of legislation won and by how many votes, and is a regular majority required or a supermajority required, that's where those rules come into play.

Hannah McCarthy: For example, the House could say, we only vote on Wednesdays and everyone has to wear a special little [00:25:30] hat. Or to get real for a second, the Senate could get rid of the filibuster anytime they want.

Nick Capodice: Anytime they want it. Hannah, are you ready for section six?

Hannah McCarthy: I think I am.

Nick Capodice: All right. All right, let's talk about making money.

Linda Monk: Section six is an interesting one because it says, okay, we're going to, you know, we're going to pay the the House and the Senate and they should get some compensation. Now, remember when the Constitution was written, the [00:26:00] idea was that the noble classes, you know, they wouldn't call themselves nobility, but they definitely believed in noblesse oblige, meaning that the people to whom much is given much is required. It's supposed to be like a civic duty. So you're not going to Congress to get paid a lot of money? Well, they'll have a compensation, but it has to be determined by law.

Nick Capodice: In other words, section six says members of Congress [00:26:30] get paid, but it doesn't say how much.

Hannah McCarthy: Right. Their salary has to be written into a bill and passed like any other law. Right now, for example, a senator makes $174,000 a year.

Nick Capodice: Yeah, that is more than twice the median American household income, but admittedly, they haven't gotten a raise since 2009. Because voting to raise your salary when you're not very popular is not very popular.

Linda Monk: And one of the other interesting updates is that [00:27:00] in the Bill of rights, as originally proposed, there were 12 amendments. And the Second Amendment in that version was one that said Congress couldn't have a pay raise until the people got a chance to fire them through another election. That's now become the 27th amendment.

Hannah McCarthy: Right. The 27th amendment was ratified in 1992 and is our most recent amendment, but it was actually one of the original 12 proposed in 1789.

Nick Capodice: What's interesting to me about this is that if you look at the state [00:27:30] votes for ratification for the 27th amendment, the most recent ones were in 1992. But some states go back to 1789.

Hannah McCarthy: Those 200 year old votes were still legitimate.

Nick Capodice: Still legit for this amendment.

Linda Monk: The archivist of the of the of the United States said, well, you know, the Supreme Court has said we really need to have contemporaneous ratification, but we're going to let this one pass. Not the ERA, but we'll let this one pass. You [00:28:00] can edit that out if you want to.

Speaker 10: He didn't.

Linda Monk: The other provision of section six that's really important is not only shall Congress get paid, but when can they be punished, because it was not uncommon under, uh, English circumstances, whether by the king or or elsewhere, that members of the Parliament would [00:28:30] be arrested on the floor of the Parliament to keep them from voting. You know what section six says is no. While you're on the floor of the Congress. You cannot be arrested except for felony treason. It has to be a big deal. It can't just be. Oh, you know, we saw him driving too fast on the way to the Capitol. So we got this. You got to come down and be be arraigned. No, that's not supposed to happen. And [00:29:00] the other big, important thing is that they can't be punished for anything based on the speech or debate in the Congress.

Hannah McCarthy: Oh, okay. This is the speech or debate clause, right?

Nick Capodice: This protects members of Congress from someone in the executive branch, like, say, the president, demanding that they be arrested.

Linda Monk: And finally, the interesting thing in this section is that if [00:29:30] you're a member of Congress, you're not supposed to also have a job in the executive department. You have to resign from Congress to then be in the executive department.

Hannah McCarthy: So a senator cannot be the Secretary of Homeland Security.

Nick Capodice: No they cannot. You gotta keep them separated. All right. Only a few remain. We're gonna come back after a quick break.

Hannah McCarthy: You're [00:30:00] listening to civics 101. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And we are tearing through article one at a pretty good clip, I would say. And we are at section seven.

Nick Capodice: This is the section that lays out how a bill becomes a law. Like the thing we know about the legislative branch, that they write the bills and those bills go through a fantastic process that we don't have time to summarize here. And they eventually land on the president's desk to be signed into law or not.

Linda Monk: So the legislative power is predominantly [00:30:30] Congress. But guess what? The president gets to veto if he disapproves legislation.

Nick Capodice: You want to give us a quick veto summary?

Hannah McCarthy: Hannah I do. If a president does not like a bill that is passed in both chambers for any number of reasons, usually political, they can veto it. And that bill does not become law. Then if two thirds of both chambers say, actually, we really want this, they can [00:31:00] override that presidential veto. And then that bill does become law without the president's signature.

Nick Capodice: And also, if the president doesn't officially veto a bill but just refuses to sign it, it becomes law ten days after it reaches the president's desk. Which Hannah recently was explained to Fox News host Maria Bartiromo by GOP rep French Hill. And maybe one of the only times our show was unintentionally name dropped by a member of Congress.

Archival: He may sign [00:31:30] it, he may veto it, or ten days after it's transmitted to the white House, it becomes law without his signature.

Archival: There you go. That's it. Okay. Congressman good to see you this morning. Thank you.

Archival: Civics 101 Maria.

Archival: Thank you for that education. Mr. chairman.

Hannah McCarthy: We finally made it. Nick. Just like when a musician gets invited to be on Sesame Street.

Nick Capodice: But now there's this other thing called a pocket veto, which is if a president refuses to sign a bill. But before [00:32:00] those ten days pass, Congress adjourns. That bill is vetoed, in essence, without anybody doing anything. Another thing in section seven is that the House and only the House can write certain laws.

Hannah McCarthy: The power of the purse.

Nick Capodice: Write any bills about taxing and spending must start in the House. The People's Chamber. That said, there are some workarounds to this. It's not hard for someone in the Senate to [00:32:30] say to their buddy in the House, hey, I want you to write this tax bill or another workaround. Money can be appropriated by other people, specifically the president, if it's tied to a quote unquote, national emergency.

Hannah McCarthy: Do you happen to know how many national emergencies have been declared over our history?

Nick Capodice: Yeah, since we started declaring them in 1976, there have been 90 emergencies, 51 of which are still in effect, and 11 of those have been declared during [00:33:00] Trump's second term. All right, we're on to section eight. And this is a big one.

Linda Monk: Then section eight is what I call the laundry list of the Constitution. It's where most of Congress's powers are set out. The kinds of things you wanted the Congress to be able to do, that it really couldn't do under the Articles of Confederation, like tax, borrow money, raise an army, create a uniform rule of [00:33:30] naturalization, provide for punishment of counterfeit coins, to coin money to regulate its value. And that's a pretty big power to say that a nickel doesn't mean what a nickel used to be. Establishing post office and roads. That was Benjamin Franklin's great gift to the country. Copyright and patent protect those rights so that people would be able to enjoy the benefits of their creative work. Create tribunals under [00:34:00] the Supreme Court also to declare war. This is another shared power. Congress declares war, but the president's the commander in chief raise and support armies. That becomes a big deal in terms of whether or not to have a standing army, a permanent army. Provide and maintain a navy, provide for the common. The calling forth of a militia. And right at the beginning of that list is to regulate commerce with foreign nations. That's [00:34:30] international commerce. And among the several states, that's interstate commerce that's probably become the largest source of federal power.

Nick Capodice: Hannah, this is what surprised me most, talking to Linda, that interstate commerce has become the biggest source of federal power. And this tiny chunk of section eight called the Commerce Clause. It's only 16 words, but its effect is tremendous. [00:35:00]

Linda Monk: Multiple civil rights laws were in fact not passed under the 14th amendment, but under interstate commerce. So the the public accommodations laws that says that a person of any color can stay anywhere, that the business is open to the public or can eat in a restaurant where it is open to the public that comes out of interstate commerce. Because what happens, um, African American people encountered this of there weren't [00:35:30] safe places that would allow them to sleep with an integrated population. So they had to create the Green book, a special directory. This hampers the movement of people and ideas and products that a vital economy needs. That segregation is a bad idea for so many reasons, and fundamentally, it hurts the economic, enterprise and ability to compete of the American people because [00:36:00] the best people aren't able to offer the best products.

Hannah McCarthy: And interstate commerce is also tied to things like gun ownership, cannabis possession, etc..

Nick Capodice: It's tied to so much stuff. If you sell something on eBay, if you drive across the state line for work, any transaction that goes from one state to another falls under interstate commerce, and it's under the purview of Congress. So that's huge. And while we're here in section eight, the very last item in [00:36:30] the laundry list is this quote to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.

Hannah McCarthy: Necessary and proper. Always struck me as a little bit vague.

Nick Capodice: Yeah, it's a little vague, Hannah. And this clause, also called the elastic clause, has been interpreted by the Supreme Court to say, hey, this laundry list here, that's not everything Congress does. Their powers might stretch as an elastic band, might around [00:37:00] a whole bunch of other stuff.

Hannah McCarthy: Till it snaps. Makes me wonder exactly how stretchy we want that elastic band to get.

Nick Capodice: Absolutely. And I'm going to leave that for our listeners to decide. All right. We are coming to the close here, sections nine and ten. I like these, Hannah, because the first eight were a bunch of do's. Don't do what Donnie don't does.

Linda Monk: Section nine is what I call the don'ts of Congress. These are the very explicit [00:37:30] things that it says flat out Congress. You do not have the power to do this. And I tragically, ironically, first thing off the boat, so to speak, is Congress did not have the power to ban the slave trade until 1808, which it did in 1808. But remember, that doesn't end slavery either, because what it creates is a domestic market for the children [00:38:00] of enslaved people to be perpetually sold and resold in bondage in the United States.

Nick Capodice: All right, moving along. Here is another crucial bit of section nine.

Linda Monk: We have the privilege of the writ of habeas corpus, which Congress cannot suspend except in times of rebellion or invasion. Principle of habeas [00:38:30] corpus is that if the government puts you in jail, they have to, within a reasonable time, tell you why you're there and not just throw away the key.

Hannah McCarthy: Okay, so let's say you've got a family member. You think this family member has been arrested, but you cannot get in touch with her. You have a right to be told what is going on.

Nick Capodice: Correct. You get a writ of habeas corpus from a judge and then.

Linda Monk: The prosecutor, the government, the jailer has to say, yes, we have her. And by [00:39:00] the way, here's what we're holding her for. We've talked about people who are disappeared under certain governments because you have no idea where they're being held, if they're alive, if they're dead, what they're being held for and can die or rot in prison. And now, under expanded powers for Ice in the US about immigration procedures, it's a similar issue of of people are saying, wait a minute. They took my my husband, [00:39:30] my wife, my loved one, my father, my child, and I have no idea where they are or if they're still alive or dead. And so this writ of habeas corpus is supposed to say that if you're representing the United States of America, you have to respond to this. And we're seeing it put into implementation, not always successfully, but at least being raised today.

Nick Capodice: Habeas corpus [00:40:00] is an extremely important don't in section nine. But there are a few more no bills of attainder, meaning you can't pass legislation designed to hurt a particular person. Also, no corruption of blood, which means people can't inherit assets from someone who is convicted of treason.

Linda Monk: The big one that I think is still important is no titles of nobility, because we the people are equal, as I say. Thank you very much.

Nick Capodice: And [00:40:30] the very last section in article one shortly, but a goodie. Section ten.

Linda Monk: Section ten. No state shall enter into any treaty or alliance. Different states wanted to receive the Minister of France, who doesn't want to receive the Minister of France. Right. And and setting all these diplomatic difficulties.

Nick Capodice: So basically, during the Articles of Confederation, all the states were getting a little too big for their britches, you know, acting like their [00:41:00] own little federal government, if you please.

Linda Monk: And that's why we needed section ten of article one to say no. States, you may think you're sovereign, but you're not a sovereign nation. You have certain sovereignty within your sphere under the US Constitution, but you're not an international sovereign and stop acting like it. And particularly regarding interstate commerce, you got to stop this business of trying [00:41:30] to put taxes and duties on other states to give yourself an advantage. New York, you can't tax New Jersey's goods. New Jersey you can't tax New York's goods. You can't do that. We're all going to live together now under a constitution. And that means they're going to be things that individual states are not going to like all the time. But we've already gone through a period where the states had maximum say so and look what [00:42:00] happened. So here we are. Did that work?

Nick Capodice: Did that work?

Hannah McCarthy: Oh that worked.

Nick Capodice: You wouldn't be able to run it all back for me, would you?

Hannah McCarthy: You want to just record this episode all over again? It's an endless loop for the listener.

Nick Capodice: Well, I mean, like, the tiniest little song.

Hannah McCarthy: Oh, you really want me to do it? Okay. Okay, great. Article one is the longest part of the Constitution, and it says there will be a legislative [00:42:30] branch, it is called Congress. It then tells us how the House of Representatives is set up, how the Senate is set up, how elections work for members of Congress, how procedure works in both chambers, how representatives and senators are paid for their jobs, how bills become laws, and that specifically spending bills have to start in the House. And then it is a laundry list of what Congress does, what they cannot do, [00:43:00] and finally, what the states cannot do.

Nick Capodice: That was pretty great. Thank you. How am I gonna end this episode?

Hannah McCarthy: You know, Nick, there are other articles in the Constitution.

Nick Capodice: Seven like the Seven Kingdoms.

Hannah McCarthy: Seven total. We got one down. Do your job.

Nick Capodice: Well, that is not it for the Constitution, but that's it for article one. Huge thanks to Linda Monk. If you want to learn more about her and her work, visit her [00:43:30] website, lynda.com. This episode is made by me Nick Capodice with you, Hannah McCarthy.

Hannah McCarthy: Thank you, thank you, thank you.

Nick Capodice: Our staff includes Taylor Quimby, Rebecca Lavoie, Dana Cataldo, and Marina Henke. Music in this episode from blue Dot sessions. Epidemic sound and the genuine article Chris Zabriskie. Civics 101 is a production of NPR, New Hampshire Public Radio.

Speaker 13: So [00:44:00] say we all.

Speaker 9: So say we all. Where's my Cylon detector?

Hannah McCarthy: You need to watch Battlestar Galactica again.

Nick Capodice: I know every.

Hannah McCarthy: Where's my Cylon detector? Saul doesn't say.

Nick Capodice: That. That was my Adama impression. He punches, he punches.

Speaker 14: I thought it was.

Speaker 9: If I was doing Saul Tigh, I'd sound like that.

Nick Capodice: Here's my Adama. He punches him in the stomach and he goes.

Speaker 9: Where's my Cylon detector? But Saul Tigh is like these frakking toasters.

---

Why do Americans love conspiracy theories?

Conspiracy theories are not new in the United States, but over the years they have taken on a life and power of their own. How did conspiracy theories become so entrenched in the American mind? Why is it that, even if we don't entirely believe them, we like them?

Our guests today are ⁠Katherine Olmsted⁠, author of Challenging the Secret Government: The Post-Watergate Investigations of the CIA and FBI and history professor at UC Davis and ⁠Derek Arnold⁠, an instructor at Villanova University who teaches communications and conspiracy theory.

---

Transcript

Hannah McCarthy: [00:00:01] I remember years ago, walking down the street in New York with a friend of mine and talking about some seriously appalling nonsense that had [00:00:10] just gone down at the federal level. And this friend also happens to be British, and we are ranting and bemoaning, and she goes, why isn't your secret shadow government doing [00:00:20] anything about this?

Nick Capodice: [00:00:22] Yeah, get it together. Secret shadow government.

Hannah McCarthy: [00:00:24] I am pretty sure that is exactly what I said. Quit sitting on your hands and your cushy [00:00:30] bunker. Climb up here and do something about this. And of course, my friend was joking. And I was also joking, but I think we [00:00:40] were a little bit not joking.

Archival: [00:00:45] They really did fake the moon landing. How sad is that?

Archival: [00:00:49] Jack [00:00:50] Kennedy and and Bobby Kennedy assassinated. Martin Luther King assassinated. I firmly convinced that it was it was not a lone killer. 80% [00:01:00] of the American people say they don't believe the government. Now that's that's really healthy.

Archival: [00:01:05] False flag operations, if you go through history, happen all the time before these wars. [00:01:10]

Archival: [00:01:10] But that's very different from saying that the government knew 9/11 was coming, knew the planes were coming and didn't try to stop it.

Archival: [00:01:16] Well, take a look at my book. It's no more...

Archival: [00:01:19] These fake [00:01:20] ballots that are coming in late. And back to the observation. They're not letting us watch the process.

Archival: [00:01:25] Pam, did you just say fake ballots?

Archival: [00:01:27] It comes from the Illuminati. No matter how they sound, [00:01:30] Illuminati is real.

Hannah McCarthy: [00:01:36] This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:38] I'm Nick Capodice.

Hannah McCarthy: [00:01:39] And today [00:01:40] the secret shadow government aka conspiracy theories, aka what are they and why do so many of us Americans have picture collages covered in webs of red string [00:01:50] in our minds? In [00:02:10] 2023, the market research firm YouGov did a survey of 1000 American adults across [00:02:20] the age, gender, race, education and political spectrum and asked them whether they thought the following statements were true or not true. [00:02:30] Do you want to hear some, Nick?

Nick Capodice: [00:02:32] Absolutely. Let's do it.

Hannah McCarthy: [00:02:34] Lee Harvey Oswald did not act alone in assassinating John F Kennedy in 1963. [00:02:40]

Nick Capodice: [00:02:41] Now, am I assessing these statements, Hanna.

Hannah McCarthy: [00:02:44] I think that we should leave that for your personal private life. Okay. Here's another one. Regardless [00:02:50] of who is officially in charge of the government and other organizations, there is a single group of people who secretly control events and rule the world together. [00:03:00]

Nick Capodice: [00:03:00] The secret shadow government.

Hannah McCarthy: [00:03:01] Here's another one. Barack Obama was not born in the United States.

Nick Capodice: [00:03:06] Oh, I had actually forgotten about that one.

Hannah McCarthy: [00:03:08] Another. The US government [00:03:10] was behind the nine over 11 attacks on New York City. The 1969 landing on the moon did not occur and was actually staged somewhere in Arizona. The US government is [00:03:20] using the Covid 19 vaccine to microchip the population. The list goes on.

Nick Capodice: [00:03:25] So what is the verdict? Do people believe these are true statements?

Hannah McCarthy: [00:03:29] Well, more [00:03:30] than half of the people surveyed do think that Lee Harvey Oswald did not act alone. That was the most popular theory. The second most popular was that a single group of people [00:03:40] are ruling the world. Again, secret shadow government. The fake moon landing was at the bottom of the list. And the common thread in all of these, what [00:03:50] must be true in order for all of these statements to be true, is that we are being lied to.

Nick Capodice: [00:03:56] We the American people by the American [00:04:00] government.

Hannah McCarthy: [00:04:01] Yep. So let's start there. Are we being lied to? Yeah, maybe.

Katherine Olmsted: [00:04:08] Well, it's very important to [00:04:10] be skeptical in a democracy of your government, spokespeople of government officials of the official story. Because many times government [00:04:20] officials do deceive or manipulate or cover up.

Hannah McCarthy: [00:04:24] This is Kathryn Olmsted, a professor of history at the University of California at Davis and the author [00:04:30] of Real Enemies Conspiracy Theories and American Democracy World War 1 to 9 over 11 and Challenging the Secret Government, the post-Watergate investigations of the CIA [00:04:40] and FBI, among other books. And you can trust me, but by all means verify when I tell you that Kathryn has done her research.

Katherine Olmsted: [00:04:49] It's not just [00:04:50] historians who study conspiracy theories, but in general, historians spend their all of their research time trying to find [00:05:00] facts and verify them. And I think a lot of people don't realize that most historical research is archivally [00:05:10] based, where you actually have to go into an archive and you look at government documents, or you look at the private collections of individuals who saved their [00:05:20] letters, and you're going through these very carefully preserved documents, and you're looking for different voices to make sure that you're not just telling the story [00:05:30] of the people in power, but other people who have left records. And you're looking at these records, and then you're eventually [00:05:40] writing peer reviewed articles based on your research, and other historians read your articles and judge whether you have done this [00:05:50] accurately or not, and then pass on whether it can be published. So it is a real intense social, scientific process. [00:06:00] We, as a discipline, as a profession, try very hard to make sure that we are not spreading disinformation. [00:06:10]

Nick Capodice: [00:06:10] This is also what a journalist is doing. Ideally, you don't necessarily take someone or something at face value. You do your research. You're [00:06:20] doing everything in your power to make sure that by the time you tell someone about it, you know it is true.

Hannah McCarthy: [00:06:27] Yeah. And I also think that that is an important and necessary [00:06:30] skill as a citizen of any nation. Pay attention. Seek trustworthy sources, verify information. So when does skepticism [00:06:40] turn into conspiracy theory?

Katherine Olmsted: [00:06:44] We're verges into conspiracy theory is when you start saying, well, I believe [00:06:50] that there is this hidden group in the government that is pulling all the strings, and I can't prove it, but I'm sure that [00:07:00] it's there. And also, another sign of a conspiracy theory is that it's non-falsifiable that someone shows you evidence that something [00:07:10] is untrue and you say, but no, I just feel it in my bones that I am right. And it's just that the conspirators are so clever that they have covered it up and destroyed [00:07:20] all of the evidence.

Nick Capodice: [00:07:22] A conspiracy theory is non-falsifiable. I had not thought about it that way. You cannot prove a conspiracy theory [00:07:30] wrong.

Hannah McCarthy: [00:07:30] Take the Obama birth certificate thing, for example. Do you remember where that all started?

Nick Capodice: [00:07:36] I think I do. Didn't it start with Hillary Clinton supporters, like [00:07:40] before the 2008 primary? There was some email suggesting that Obama was not a US citizen and was therefore not eligible for president.

Hannah McCarthy: [00:07:48] Yeah. So Clinton was [00:07:50] lagging behind in the polls and whether her supporters originated the idea or not, it was some of those die hards who suggested that Obama was ineligible for president. [00:08:00] Also a convenient way to leverage racism while claiming it is about constitutionality anyway. First, Obama and his campaign dismissed it, and then eventually [00:08:10] they were like, you know what?

Derek Arnold: [00:08:12] Fine. Here's my birth certificate. And they looked at it and they go, oh yeah, well, that's the short form. That's not the formal, you know, version of [00:08:20] it.

Hannah McCarthy: [00:08:20] This is Derek Arnold. He teaches communications, including a class on conspiracy theory at Villanova University.

Nick Capodice: [00:08:28] I remember the short form birth [00:08:30] certificate thing. It was as though all these conspiracy theorists had suddenly developed the administrative red tape strictness of the DMV.

Hannah McCarthy: [00:08:38] And who knows if it might have [00:08:40] ended there. But then Donald Trump went on the Today show and said he had doubts about Obama being a citizen.

Archival: [00:08:48] Donald Trump sure knows how to make [00:08:50] people watch, but many people now, including Republicans, are wondering, are they watching a serious candidate or a circus actor? Does he really believe that President Obama wasn't born in America, [00:09:00] or is he really just selling his favorite product? Trump.

Hannah McCarthy: [00:09:05] And at this point, Obama was our president. So again, Obama [00:09:10] and his people respond.

Derek Arnold: [00:09:12] So he would go, what the hey? And so fine, here's my long form version of my birth certificate. And they go, oh, by now you just [00:09:20] figured out ways to digitally alter it or whatever.

Nick Capodice: [00:09:22] So yeah, like it started to feel like it wouldn't matter if you had the home video of Obama being born on a beach in Hawaii, [00:09:30] right?

Hannah McCarthy: [00:09:30] No proof could be sufficient proof. You cannot disprove a conspiracy theory, nor importantly can you prove it ideally. [00:09:40] So, for example, if you think about the theory that the government faked the moon landing, Who would know that? Really, only the government.

Derek Arnold: [00:09:49] It's [00:09:50] something that doesn't typically wind up being provable, because some of the information they would need the government or powers to be, they actually [00:10:00] have that. And so when they do, we can't have access to that information because, A, they don't want you to have it, because then I would be able to prove my conspiracy theory. [00:10:10] Or if there is something that slips that, you know, gets out, they say if it's not really helpful for their own conspiracy theory, they will say that, oh, this [00:10:20] got out because, you know, this was something that they really wanted us to have in a way.

Nick Capodice: [00:10:26] So the proof is in the government's hand and they won't give it [00:10:30] to us. So there is no way to prove a theory. Correct. And whatever the government does tell us, if it doesn't support the conspiracy theory, it's actually [00:10:40] part of the conspiracy.

Hannah McCarthy: [00:10:43] Which puts conspiracy theory in this slippery place. Can't prove it, can't disprove it. And it [00:10:50] grows stronger the more someone tries to prove or disprove it. Derek says his students often come into class excited to talk conspiracy, perhaps [00:11:00] not unlike people listening to this episode right now, only to be a smidge disappointed.

Derek Arnold: [00:11:08] A lot of times the students come in the first day or [00:11:10] two and they're basically saying, oh, this is going to be so cool. All these, you know, great, you know, conspiracy theories they have in their head and they're a little bit like, oh, wait, it's almost like super bored when I [00:11:20] say, okay, we're going to talk about logic. We're going to talk about all these other things as far as argumentation goes and they go, but I want to see all the crazy stuff in a way. And if you tell people [00:11:30] like, here's a regular story where here's the logical and common sense explanation for it, folks are going to be like, oh, wait, but that really wasn't what I signed up for. [00:11:40]

Hannah McCarthy: [00:11:40] I want to just reiterate that the accepted stories are not always the true story that people in government do lie and manipulate and mislead, [00:11:50] and they should be fact checked. But the thing I find remarkable about conspiracy theories is that they give the big, bad government a whole lot of credit.

Nick Capodice: [00:12:00] Are [00:12:00] you saying it's actually hard to stage a massive, multi-decade cover up, Hannah?

Hannah McCarthy: [00:12:05] I only mean that while there are definitely secrets the government does not want us to [00:12:10] know does not let us know, the government is also people. You know that scene in All the President's Men where Bob Woodward is meeting his FBI informant, [00:12:20] Deep Throat, aka Mark felt in the parking garage. And Woodward is like, well, we can't figure out this puzzle. It's seeming like there's this cover up here, despite what the government is saying. And Deep Throat [00:12:30] goes.

Archival: [00:12:30] Forget the myths the media's created about the white House. The truth is, these are not very bright guys. And things got out of hand. [00:12:40]

Hannah McCarthy: [00:12:41] The truth is, these are not very bright guys and things got out of hand.

Nick Capodice: [00:12:47] I absolutely love that scene. It's like, these [00:12:50] are not geniuses. These are people who screwed up.

Hannah McCarthy: [00:12:54] Yeah. And in this case, Mark felt is saying two things. One, stop taking the [00:13:00] government at its word. And two, this pretty picture you have about the government, a picture that you, the media, helped to create all cleverness and [00:13:10] competence. That is not the real picture.

Nick Capodice: [00:13:13] Right. Quit being so starry eyed and pay attention so you can find the cracks.

Hannah McCarthy: [00:13:18] So not taking the government [00:13:20] at its word that is essential to a conspiracy theory and perfectly reasonable. Be skeptical and verify. But the other part [00:13:30] of conspiracy theory, the part that goes against Mark Feltes advice conspiracy theory assumes extraordinary cleverness and competence, [00:13:40] as though the government comprises not human beings, as in people who forget things, make mistakes, catch the common [00:13:50] cold, lose their keys, but perfect genius demigods who see everything, know everything and can do anything [00:14:00] and then cover it up so the American people never know.

Katherine Olmsted: [00:14:06] There is an assumption by the conspiracy theorists that [00:14:10] there is this group in charge that controls every aspect of a plot and is able not only to carry [00:14:20] it out, but then to cover it up and to make sure that no one, except maybe the very savvy conspiracy theorists, can uncover it.

Hannah McCarthy: [00:14:28] And Derek made the point that [00:14:30] perhaps there's something comforting about this.

Derek Arnold: [00:14:34] I may not have control at all of my life, but it's nice to know that somebody got this like, you know, [00:14:40] even if it's like to take over the world, they seem to have their act together.

Nick Capodice: [00:14:43] It makes me think of your British friend and the whole secret shadow government thing. Would a secret shadow [00:14:50] government be a good thing in a representative government? No. But would it be nice if there was something bigger and more powerful and [00:15:00] more capable than anyone or anything else to step in and take care of stuff when it all goes sideways?

Hannah McCarthy: [00:15:05] Maybe in a world of chaos and uncertainty, at [00:15:10] least someone has the ability to take over the world, even if we don't want them to take over the world. So how and why did so many [00:15:20] Americans develop this way of thinking about governmental power and control? I can tell you this much. They came about it honestly. That's after [00:15:30] the break.

Nick Capodice: [00:15:50] We [00:15:50] are back. We're talking about conspiracy theory in America, what that actually means, and why so many of us have conspiracy theories, or at the very least, [00:16:00] like them. And Hannah, before the break, you said that Americans came by. This kind of thinking, honestly, is conspiracy theory a uniquely [00:16:10] American thing?

Katherine Olmsted: [00:16:11] So it would be incorrect to say that Americans believe conspiracy theories and the rest of the world, or also Americans at [00:16:20] earlier times, are completely rational. It's very human tendency.

Hannah McCarthy: [00:16:24] This is Katherine Olmstead again.

Katherine Olmsted: [00:16:26] For many decades, the leading scholar [00:16:30] of American conspiracy theories was a historian from Columbia named Richard Hofstadter. He wrote a very famous essay called The Paranoid Style [00:16:40] in American Politics, in which he looked at conspiracy theories back to the Puritans and how they had changed over time.

Hannah McCarthy: [00:16:49] If you research conspiracy [00:16:50] theory and I don't mean investigate conspiracy theories, then you've probably come across Richard Hofstadter.

Katherine Olmsted: [00:16:58] And his argument [00:17:00] was that because America is a nation of immigrants, that many Americans are very anxious to define who they are, what [00:17:10] is American. And so they're always casting out the un-americans. And so there is this desire to find people who are endangering [00:17:20] your country, your republic, and to cast them out. He also had the theory that he used the term [00:17:30] status anxiety to say that America is such a is a, is a it's an economy in which many people are going up and going down. They don't [00:17:40] have necessarily a fixed place. So that creates a certain amount of anxiety that can lead to right wing theorizing.

Hannah McCarthy: [00:17:48] Hofstadter wrote the paranoid [00:17:50] style in American politics, and that was in 1964. So when he talked about the right wing theorizing, he meant and this was in a lot of different ways, the theory [00:18:00] that the communists are everywhere throughout our government and among our citizens, undermining capitalism, religion, education, the press, democracy itself.

Nick Capodice: [00:18:09] And this is at a [00:18:10] time when communism was shorthand for un-American.

Hannah McCarthy: [00:18:13] Which plenty of people still believe today. But Hofstadter also believed that this [00:18:20] American way of thinking was neither new nor especially right wing.

Nick Capodice: [00:18:25] How not new?

Katherine Olmsted: [00:18:27] There have been conspiracy theories in [00:18:30] U.S. history since the United States was created, or even before. So the conspiracy theories are constant, but the targets of the conspiracy theories, [00:18:40] the villains of the conspiracy theories, change over time.

Hannah McCarthy: [00:18:43] In the very early days, for example, you had the Freemasons in the American colonies and eventually in the [00:18:50] United States. Now the Freemasons evolved from what had been in the Middle Ages in Europe a craftsmen's guild of stonemasons. By the time it was in America, it was [00:19:00] a pretty powerful and influential group of guys who also had secret handshakes and secret meetings. Here's Derek Arnold again.

Derek Arnold: [00:19:10] They [00:19:10] have these secret ceremonies. When it came to when not so much the things that they would talk about outside in the meetings or in the meetings themselves. But it was almost like the the [00:19:20] actual kinds of steps and procedures and stuff. So like if somebody got promoted to a next level up of, of the Masons and people say, well, why would you have to do [00:19:30] those things in secret? And they guys just kind of how we do it to kind of, you know, make sure we've got the trust of the people to make sure that they are basically consistent and for our ideals [00:19:40] and stuff. And that wound up being, I think, part of the idea of how the Freemasons began to be a little bit more suspected.

Hannah McCarthy: [00:19:47] It didn't help things that in 1776, [00:19:50] the Illuminati was established in Bavaria. Both the Freemasons and the Illuminati were all about enlightenment thinking, reason. The [00:20:00] Illuminati were also opposed to abuses of monarchical power and the influence of religion, and in America that was spun into a [00:20:10] fear that the Illuminati wanted to destroy religion and overthrow all European government.

Nick Capodice: [00:20:17] But that's Europe, and that's not the Freemasons. [00:20:20]

Hannah McCarthy: [00:20:20] And the Illuminati had been squashed in Bavaria pretty darn quickly. But it doesn't really matter. They kind of rhyme. A pastor in Boston, Jedidiah Morse [00:20:30] delivered a sermon warning against an Illuminati plot in the United States. The president of Yale University, Timothy Dwight, did the same thing, claiming [00:20:40] that the Illuminati in America sought, quote, the overthrow of religion, government, and human society. Civil and domestic. At [00:20:50] the same time, the country had very recently and very successfully developed a two party political system, [00:21:00] Federalists and the Democratic-Republicans.

Derek Arnold: [00:21:03] 1796 and 1800. Those two elections, when you have Adams and Jefferson, who are [00:21:10] good friends, wind up basically at each other's throats.

Hannah McCarthy: [00:21:13] Now, those two men I mentioned who were warning against the dangers of the Illuminati in America, Jedidiah Morse, [00:21:20] the Boston pastor, and Timothy Dwight the Yalie. They were both Federalists, aka pro John Adams, who was running [00:21:30] against Thomas Jefferson, the Democratic-Republican who also happened to be a deist, meaning believes in God, but not so much religious constrictions and iffy [00:21:40] on the dogma of Christianity. Jefferson also liked France. Where revolution happens.

Nick Capodice: [00:21:47] Happened here too.

Hannah McCarthy: [00:21:48] That is beside the point. People thought France [00:21:50] wanted us to overthrow our brand new government anyway. Dwight ends up saying that while he can't say for sure who is an Illuminati member in the United States, [00:22:00] he'd put Thomas Jefferson at the top of the list.

Nick Capodice: [00:22:03] Because he's not religious and he likes France.

Hannah McCarthy: [00:22:06] I'm painting in broad strokes here, but you know what? So did Dwight. [00:22:10] So yeah. And then actually, the smear campaign backfired. And a disgruntled preacher who never made it big in New England took the Illuminati fear and [00:22:20] ran with it. And he was like, of course, Jedidiah Morse and Timothy Dwight are ranting against the Illuminati. They are the Illuminati and the Illuminati is [00:22:30] an anti-religion. It is actually trying to create a secret state run religion.

Nick Capodice: [00:22:36] Wow. Talk about reaping what you sow.

Hannah McCarthy: [00:22:39] Of course, it didn't help [00:22:40] that John Adams, despite being very much for religious freedom, called for a national day of fasting and prayer and got accused of trying to mandate faith. [00:22:50]

Nick Capodice: [00:22:50] Oh, boy. Sit down John.

Hannah McCarthy: [00:22:53] But basically, Nick, what you have got here is a picture of power secret clubs. They're coming for our religion. They're coming for our [00:23:00] government. They're coming for our democracy. They're coming for our America. And it never went away. Here's Kathryn Olmsted again.

Katherine Olmsted: [00:23:10] In [00:23:10] the 1800s, there were many conspiracy theories about religious minorities in a Protestant nation. So anti-Catholic conspiracy [00:23:20] theories, anti-Semitic conspiracy theories. There were also many anti-Mormon conspiracy theories. There were conspiracy theories by the late [00:23:30] 1800s about large corporations, and these were economic conspiracy theories that distant corporations, railroads, banks [00:23:40] were conspiring against the people. So you have this mix of conspiracy theories about minority groups and then about concentrated [00:23:50] capital. But there's not a lot of anti-government conspiracy theories until the early 1900s.

Nick Capodice: [00:23:58] Hang on. But wasn't the Illuminati [00:24:00] stuff anti-government?

Hannah McCarthy: [00:24:01] Not quite. It was a fear that a single person or a single group was going to undermine or destroy the government. Our democracy. But [00:24:10] the prevailing idea that the government itself was the bad guy. That took a while.

Katherine Olmsted: [00:24:17] Until you get to about World War One. And [00:24:20] what I argue in my book, Real Enemies, is that that's because that's when the government gets big, that the U.S. government began developing a secret [00:24:30] state, the capacity to spy on dissenters, to monitor its own people around about the period of World War One. So the U.S. [00:24:40] entered the war in 1917. And it's as the U.S. government criminalizes dissent in World War One. And as it starts surveilling domestic [00:24:50] dissidents, there start to be a lot more anti-government conspiracy theories.

Hannah McCarthy: [00:24:58] The anti-government conspiracy [00:25:00] theories did not start right away, though.

Katherine Olmsted: [00:25:03] So one of the first is about the U.S. entry into World War One and the belief increasingly [00:25:10] after it's over. So not so much at the time, but by the 1930s, a lot of Americans look back at that and say, what a mistake. Why did the U.S. get involved [00:25:20] in that war? That was really a horrific war for the men who fought it. And so why did that happen? And they say, well, you know, actually [00:25:30] it was a conspiracy by U.S. banks that wanted to get their money out of the allied countries that wanted the allies to win so that they would [00:25:40] get their loans repaid. And it was a conspiracy by arms manufacturers who wanted to sell guns to all the sides. So there's there's that [00:25:50] conspiracy theory in World War One. And every major U.S. war in the 20th century triggers conspiracy theorizing. So in World War [00:26:00] Two, there were some people on the far right who thought that the U.S. was involved in the wrong war with the wrong enemy, that really the United [00:26:10] States should be fighting against the Soviet Union rather than with the Soviet Union, against the Nazis.

Nick Capodice: [00:26:19] You know, the [00:26:20] concern that we get involved in war for the wrong reasons. That we're fighting the wrong people. That money and profit has something to do with it. That is not entirely [00:26:30] absurd.

Hannah McCarthy: [00:26:32] Definitely not. There's something there.

Derek Arnold: [00:26:35] I tell my classes, like maybe 10 to 15% of all the conspiracy theories [00:26:40] you will hear have something to them. Doesn't mean that they're true, but it's just enough to lure you to go farther.

Hannah McCarthy: [00:26:46] Okay. So if, for example, World War two is confusing, [00:26:50] if the alliances seem weird, if Americans don't entirely like what they're seeing, conspiracy theory can take those sort of vague understandings [00:27:00] and push them even further.

Katherine Olmsted: [00:27:02] And so these people on the far right said, well, I think that Franklin Roosevelt tricked us into the war by [00:27:10] deliberately exposing the U.S. fleet at Pearl Harbor and setting up the fleet to be attacked, and then failing to warn [00:27:20] the commanders there so that Pearl Harbor conspiracy theories become a staple of the. Of the far right in the 1940s and 50s. Then [00:27:30] in the 1950s, there's anti-communist conspiracy theories that there are communists who have infiltrated the U.S. government and [00:27:40] are manipulating U.S. foreign policy to benefit the Soviet Union.

Archival: [00:27:44] Even if there are only one communist in the State Department, that would still be one Communist too many. [00:27:50]

Katherine Olmsted: [00:27:51] And then in the 1960s, with the JFK assassination, the energy and conspiracy theories isn't just limited [00:28:00] to people on the right, but instead the JFK conspiracy theories are much more widespread. And they're on the left and the right.

Archival: [00:28:09] There may be [00:28:10] something abroad in the land that wants not to believe. The report's conclusion that President Kennedy was the victim of a lone madman and not of a conspiracy.

Katherine Olmsted: [00:28:19] And there [00:28:20] are many more ordinary citizens who get excited by energized by these theories and think I can solve them, that [00:28:30] I am a historical detective. I'm going to go to Dallas, and I'm going to find witnesses. And I am going to study the sewer system, [00:28:40] and I'm going to look at manholes, and I'm going to walk in the footsteps of Lee Harvey Oswald, and I'm going to solve this myself. And they [00:28:50] bring this sort of citizen detective energy to conspiracy theories. And then in the 1970s, [00:29:00] after Watergate, after the Vietnam War, exposed a lot of government lies, then you have a lot more people, a lot more Americans who [00:29:10] distrust the government and who are increasingly inclined to believe all sorts of conspiracy theories.

Archival: [00:29:17] The president himself admitted he has lost his impeachment [00:29:20] fight in the House, that he has not always given the public the straight story on Watergate, and that he withheld from his lawyers and the House committee certain damaging information. Dan Rather [00:29:30] reports.

Hannah McCarthy: [00:29:34] Watergate is a really important example here, and I know that we talked about it a little already, but Watergate [00:29:40] was a conspiracy. Woodward and Bernstein were right.

Archival: [00:29:45] Bernstein listen, it goes all the way to stands.

Archival: [00:29:46] What are you talking about?

Archival: [00:29:47] It goes all the way to stans. He gave the check to stands for the [00:29:50] Committee to Reelect.

Archival: [00:29:51] Did he say that?

Archival: [00:29:52] He said it. I've got it on my notes. It's down on record. Bernstein.

Katherine Olmsted: [00:29:57] Woodward and Bernstein were viewed by [00:30:00] their peers as people who were unnecessarily fixated on potential wrongdoing in the Nixon administration, [00:30:10] when, in fact, they believed that the press corps should be taking the president and his officials at their word. But Woodward and Bernstein decided [00:30:20] no. We believe that there is this conspiracy and we are going to uncover it. And of course, they they started a movement that brought down a president. And [00:30:30] then they were glorified in popular culture, in great texts like All the President's Men. So that conspiracy theories today, [00:30:40] conspiracy theorists can look back on that and say, well, I want to be the next Woodward or Bernstein. I'm not going to listen. When people say I'm wrong, I'm a conspiracy [00:30:50] theorist. I'm going to uncover the truth.

Nick Capodice: [00:30:56] So Watergate actually fuels the [00:31:00] conspiracy theory fire.

Hannah McCarthy: [00:31:01] Well, think about it. It is proof that the government cannot be trusted. It is proof that the government lies, that the government covers [00:31:10] things up. And what happens after Watergate reveals even more proof that the American government is a slippery one.

Katherine Olmsted: [00:31:21] After [00:31:20] Watergate, Congress has investigations into possible abuses by secret government agencies, and [00:31:30] these investigations then come up with a lot of evidence of previous government abuses. So, for example, that the FBI spied on Martin Luther King and [00:31:40] civil rights leaders, that the CIA worked with the mafia to try to kill Fidel Castro of Cuba.

Archival: [00:31:47] One of the problems in the very beginning, in 1960, was that the [00:31:50] CIA wanted to try and kill Fidel Castro without it being obvious that it was the CIA that was trying to kill him.

Katherine Olmsted: [00:31:56] And so then by the late 20th century, there [00:32:00] are these anti-government conspiracy theories are widespread. They are mainstreamed. They are in pop culture. The X-Files, for example, runs for [00:32:10] 11 seasons, starting in the 1990s.

Archival: [00:32:13] What are they trying to do?

Archival: [00:32:15] That's the missing piece.

Archival: [00:32:16] But it's not hard to imagine a government hiding, [00:32:20] hoarding alien technology for 70 years at the expense of human life and the future of the planet.

Katherine Olmsted: [00:32:26] There's a lot of pop culture that you can consume [00:32:30] about government conspiracies and how the government is conspiring against you. And then finally, when we get into the 21st century, there's nine over 11 attacks, [00:32:40] which is a traumatic event. The Bush administration then leads the U.S. into war against Iraq. So you have another war decision that leads to conspiracy [00:32:50] theories about how did we get in this war? Well, it must be there was a conspiracy by people within the government against the American people.

Archival: [00:32:58] There is solid evidence [00:33:00] that members of the Saudi royal family were working with al Qaeda terrorists.

Archival: [00:33:06] The 9/11 Commission, not surprisingly, ignored this subject [00:33:10] altogether.

Hannah McCarthy: [00:33:14] So again, I said, Americans come by this honestly, and I'm not saying that all Americans are conspiracy [00:33:20] theorists, and I'm not saying that all conspiracy theorists are way out of bounds. And when Katherine Olmstead started writing about conspiracy theories, she understood [00:33:30] that there was a balance here.

Katherine Olmsted: [00:33:31] I actually got interested in this subject because the first book that I published was called Challenging the Secret Government. It was [00:33:40] about the congressional investigations of the CIA and FBI right after Watergate. But people started contacting me from [00:33:50] all over the country who wanted to tell me their stories about how they believed that they were the subjects of conspiracies by the government, [00:34:00] the targets of conspiracies, and they wanted me to help them research what they saw as their own oppression, or they just wanted someone to listen to [00:34:10] their stories, and some of them were not very persuasive in the stories that they told. But there were [00:34:20] people who were very persuasive, who believed that the FBI, for example, or the CIA, had been surveilling them when they were activists against the Vietnam War. [00:34:30] And so I was very interested, got very interested in how do you draw that line between people who you think are [00:34:40] delusional and people who actually have been surveilled by or oppressed by the government? And how do you how do you verify that? And how do [00:34:50] you respectfully tell the stories of the people who believe these theories?

Hannah McCarthy: [00:35:01] What [00:35:00] I found really interesting about Catherine's approach to conspiracy theory came in part through her answer to a question that I myself do not really know [00:35:10] how to answer. Do you have a favorite conspiracy theory? And should you have a favorite conspiracy theory?

Katherine Olmsted: [00:35:20] I [00:35:20] would say that because of recent events where it seems like so many conspiracy theories have harmful effects, I don't really [00:35:30] have a favorite conspiracy theory. I'm just worried about the deleterious effects of all of them.

Nick Capodice: [00:35:36] Like the conspiracy theory that vaccines cause autism, leading [00:35:40] to unvaccinated children leading to measles outbreaks.

Hannah McCarthy: [00:35:44] Or that the 2020 election was rigged and votes were illegitimate, leading to widespread mistrust of [00:35:50] the election process and the legitimacy of our elected officials and an insurrection.

Archival: [00:35:55] Events in Washington have taken a violent and tumultuous turn in the past few hours, as [00:36:00] thousands of supporters of President Trump stormed the US Capitol building, venting their anger at the victory of Joe Biden in the presidential election.

Hannah McCarthy: [00:36:08] In fact, it's not just [00:36:10] the suggestion that the election system is rigged, but that every thing is rigged. Nothing can be trusted.

Katherine Olmsted: [00:36:17] I have to say that in recent years, it [00:36:20] has been a little bit harder to remain sympathetic when some of the anti-government conspiracy theories are not intriguing or or based [00:36:30] on real events, but just outright lies.

Nick Capodice: [00:36:34] That is an interesting point that Katherine's making. Some of the conspiracy theories today just [00:36:40] aren't intriguing. They're not working within reality, within actual things that are actually going on.

Hannah McCarthy: [00:36:47] They are also a powerful [00:36:50] distraction.

Katherine Olmsted: [00:36:51] Thomas Pynchon, the novelist, said, essentially, if they can get you asking the wrong questions, they don't have to worry about [00:37:00] answers. So that if you are distracted by asking the wrong questions and trying to prove mysteries that [00:37:10] don't exist, then that means you don't have the attention or energy to devote to the real problems in American society and the real mysteries to be exposed.

Nick Capodice: [00:37:19] What's [00:37:20] going on at the Watergate while you're storming the pizza place?

Hannah McCarthy: [00:37:23] And who stands to gain by sending you in the wrong direction? Because conspiracy [00:37:30] is real. Undermining and attacking American democracy, education, sources of information. That's all real. All of that stuff that even the early [00:37:40] American people were really worried about. And it's often committed by not very bright people who let things get out of hand, which is a [00:37:50] whole lot easier to do when people are looking the other way. This [00:38:00] episode was produced by me, Hannah McCarthy with Nick Capodice. Marina Henke is our producer, Dana [00:38:10] Cataldo is our digital producer, and Rebecca Lavoie is our executive producer. Music in this episode comes from Epidemic Sound. You can find a transcript for this episode, as well as everything else we [00:38:20] have ever made at Civics101podcast.org dot org. And while you're there, if you have questions about the American government, how it works, whether it works, and the mistakes it has definitely [00:38:30] made, you can ask us, just click the Ask a Question button on our home page, which again is civics101podcast.org dot org. Civics 101 is a production of [00:38:40] NHPR, New Hampshire Public Radio.

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Do we have separation of church and state?

What did Jefferson mean when he wrote about a "wall of separation" between the church and the state? How have we interpreted the pair of clauses in the 1st Amendment regarding religion? And finally, what is the current relationship between church and state when it comes to the Supreme Court, religious schools, taxes, and growing religious nationalism?

Today we talk to Katherine Stewart, author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism and Morgan Marietta, Chair of Political Science at the University of Texas, Arlington and founding editor of the SCOTUS Decisions Series.

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Transcript

Nick Capodice: Hannah, you don't want to, like, come clean on the most embarrassing civics gaffe that you've made.

Hannah McCarthy: Uh, no. I don't want to do that. No.

Nick Capodice: I was I was going to start with mine, but I am just not going to do it. I am not going to admit my most ignorant gaffe since I started this job. It's too embarrassing to even say out loud. But if any of you happen to see me in the real [00:00:30] world and you ask me in person, I will tell you. So I bring it up. Because, Hannah, you refrained from referencing the West Wing until your government shutdown episode. And today I break my fast. I start with a West Wing episode that saved me from another blunder.

West Wing: The law separation of church and state. Who told you that? You know exactly what I'm talking about. So the government and the church are not supposed to. They're not supposed to be the same [00:01:00] thing. And you think there's a law? There is. What kind of law? What the hell? City, state, federal. I don't know about those things, but I know there's a law.

Hannah McCarthy: Oh, I know this episode.

Nick Capodice: You do? Red Mass?

Hannah McCarthy: Of course. Yeah. This is the one about the Catholic mass held the Sunday before the Supreme Court first convenes in October. Right. And there's this guy who's talking to Charlie.

Nick Capodice: Anthony.

Hannah McCarthy: Okay. Yeah. Anthony Anthony says that it is against the law to have a mass that all of these politicians [00:01:30] are supposed to go to because of the separation of church and state. And Charlie challenges Anthony to show him where exactly separation of church and state exists in the Constitution.

Nick Capodice: That is the one. If I had not seen that episode, Hannah, I would have told you that there is a clear law somewhere saying that there is a separation of church and state.

Hannah McCarthy: I mean, the idea is in there, it's in the First Amendment. But [00:02:00] it does all make me wonder why we all know that phrase separation of church and state. Where does that come from?

Nick Capodice: Well, Hannah, we have got a long, fuzzy, gray road to walk. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about the separation of church and state. We are going to look into the framers intentions, the controversy about the separation since our founding, the modern interpretation in the courts, and [00:02:30] finally, the growing movement of nationalism in the name of religion. But yeah, let's start with that question. Where does this phrase come from?

Katherine Stewart: As you know, the phrase separation of church and state is not in the Constitution, but that's because the Constitution requires quite precise language. And that phrase, separation of church and state is not sufficiently exact for that document.

Morgan Marietta: The separation of church and state as an idea, as a principle, surely is [00:03:00] part of the US Constitution. But that does not mean that we have agreed now or in the past or in the future exactly what that principle is or how it should be applied.

Katherine Stewart: My name is Katherine Stewart. I'm an author and journalist. My book is titled The Power Worshipers Inside the Dangerous Rise of Religious Nationalism.

Morgan Marietta: I'm Morgan Marietta, professor and chair of political science at the University of Texas at Arlington and coeditor of the annual Scotus series.

Nick Capodice: And before we get into the history, I have to [00:03:30] start with a really compelling idea that Morgan told me at the start of our interview. It was something Franklin Delano Roosevelt said on Constitution Day in 1937.

Morgan Marietta: Fdr 1937 has this great quote on this The Constitution of the United States was a laymen's document, not a lawyer's contract.

FDR: This great laymen's document, therefore, was a charter of general principles completely different from the whereases [00:04:00] and the parties of the first part and the fine print which lawyers put into leases and insurance policies and installments.

Morgan Marietta: And that's the reason why the phrase separation of church and state is so important. It's an understandable phrase that's meant for ordinary discussion. It's not literally in the Constitution, but it's the way that we talk about and understand this.

Nick Capodice: So this separation as an idea [00:04:30] is in the First Amendment, which I'm going to get to in short order. But the words in that expression come from the 1800s.

Katherine Stewart: Thomas Jefferson offered those words as a paraphrase in a letter to the Danbury Baptist Association in Connecticut in 1802. Baptists at the time were fairly marginalized and often despised group religious group. And they were worried that a nation dominated by other Protestant sects and [00:05:00] denominations would force them to do things that they simply didn't want to do. So Jefferson was really assuring them that they didn't have to worry, that the government wasn't going to take sides when it came to religion and that they were going to have full and equal rights as citizens. So that phrase separation of church and state is a really good paraphrase for those ideas and principles.

Hannah McCarthy: It's interesting to me that such a massive thing, something one might consider a bedrock principle of America, was [00:05:30] first used in a letter to a small association in Connecticut after our Constitution was written.

Nick Capodice: I know, but what surprised me about it is that it wasn't just a small personal missive. He just slapped together. The Library of Congress, enlisted the help of the FBI forensic experts to reveal how many drafts and how many edits he made of this letter. It was important to Jefferson. He talked about it a lot. His actual words were, quote, a wall of [00:06:00] separation between church and state.

Katherine Stewart: Another really important document to remember is the Virginia Statute of Religious Freedom. It's a statement written by Thomas Jefferson in 1786. And in that statute, he laid the ground for the First Amendment protections for religious freedom. It discusses in some detail both freedom of conscience and also the principle of church state separation. And it's really well worth a read. But I think it's important to remember that the Virginia Statute of Religious [00:06:30] Freedom came about because there was this crisis where everyone was asked to pay a tax to support the Anglican Church, and other denominations were really upset about that. They didn't want to pay for an American religion. And Jefferson and Madison agreed that no one should have to pay money to support a religion they do not wish to support. And that's why we have that statute of religious freedom, which anticipated the Bill of Rights in the First Amendment.

Nick Capodice: And as a quick aside, if you're talking original constitution, not including the amendments, the [00:07:00] word religion is only mentioned once in the whole thing. It's an Article six "No religious test shall ever be required as a qualification to any office or public trust under the United States."

Hannah McCarthy: Okay, let's get into the First Amendment, those actual words upon which this idea is based.

Morgan Marietta: So the actual phrase is Congress shall make no law. It's important to note here, people get confused about this. They think, oh, you mean Congress...you mean that states can violate this. This is about the civil war in the 14th Amendment. [00:07:30] We have broadened this out. We read it now to mean government. So you take Congress and you x it out and you say government. So government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Nick Capodice: Worth noting here that while we might think of the First Amendment primarily being about speech; religion, religion comes first in the actual words. And there are two clauses in those 16 words which we refer to as the establishment clause and the free exercise [00:08:00] clause. And those 16 words again for the people in the back. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Hannah McCarthy: Two clauses in 16 words Let's break them down.

Nick Capodice: You got it McCarthy Establishment first.

Morgan Marietta: Establishment clearly was referring to the practice in Old Europe and in the early colonies of having an established church to which you had to give some kind of obedience or give money. But [00:08:30] Americans in the court have seen it much more broadly than that. It's not just about having an official church. It's about having any endorsement of religion or entanglements with religion. Question is, how far does that go? Does it go to a wall of separation? Does it go to this complete argument that there can be no religious presence at all, but that might start to violate the second part, which is free exercise and free exercise of religion raises the question of what is a religion? It's clearly [00:09:00] belief. So the government can't tell you what to believe or what to say. But religions are not just about belief. They're also about behavior. That belief tells you to act in certain way or wear a certain things or engage in certain kinds of behaviors. And the question is, how far does that go? Because if it's behavior as well as belief, those behaviors can start to infringe upon other people.

Hannah McCarthy: I just want to jump in here and say I like the idea of the Constitution being understandable. A laypersons [00:09:30] document. But even if we think we understand what it says, it still comes down to interpretation. How have people and most importantly, of course, the courts interpreted those 16 words.

Nick Capodice: Well. Morgan talked with me a bit about that specifically. Many Supreme Court decisions have read them differently over the years, but he boiled it down to three, three interpretations.

Morgan Marietta: It basically basically goes like this The dual [00:10:00] clauses could mean protection, neutrality or separation.

Nick Capodice: And before this trio. Hannah, Let me just relate a personal I don't know. What do you call it? A Bugaboo? Hannah, do you have a word that you like? Always misinterpret that you get wrong?

Hannah McCarthy: Not any more, but kind of like family lore. We in the McCarthy household always used the term enervate to mean like giving energy, [00:10:30] right? Like that was so enervating because it sounds like energizing, but actually the word enervate means the exact opposite.

Nick Capodice: I have the exact same problem with the word secular, the exact same thing. I think it means the opposite of what it means. So secular means non-religious. I don't have trouble with non-religious as an idea. It sounds religious, right? Seculare.

Religious Choir: Se-cu-la-reeee

Nick Capodice: So if there's just one person out there like me who has trouble with the definition of [00:11:00] secular, No, we are in the same canoe. Okay, Back to Morgan's trio of interpretation of the establishment and free exercise clauses. Number one, protection.

Morgan Marietta: And protection means that the original purpose was to protect the liberty of the mind, to protect the existence of religion. Madison argued very clearly that religion flourishes more when government does not interfere with it. It was meant [00:11:30] to protect religion by not letting one religion dominate others. If you put the Catholics in charge, they'll dominate the Protestants. And if you put the Baptists in charge, they'll dominate the other Protestant denominations. If you want a religious society, you have a separation of church and state. But that was meant to let them flourish. You can argue that separation of church and state is meant to have society be more and more secular. But the founding idea may not have been that at all, and the idea could be protection of religion. [00:12:00]

Nick Capodice: All right. You ready for number two? Number two, neutrality.

Morgan Marietta: Neutrality. And this suggests that the meaning of the dual religion clauses is you must treat religion and secularism neutrally and all religions neutrally and all criticisms of religion neutrally. So anything that goes to the seculars, the religious, anything that goes to the religious, the seculars, Gad and neutrality [00:12:30] and this phrase of neutrality. The Supreme Court has used this many, many different times, often without agreement of what neutrality means, though.

Hannah McCarthy: What does Morgan mean when he says the justices cannot agree on what neutrality means?

Nick Capodice: I'll get to that real soon, but let me get number three out of the way first.

Morgan Marietta: The third version is separation. And there was a very important case, the Lemon case, 1971, Lemon v Kurtzman and the lemon [00:13:00] test said that essentially we had to avoid any kind of entanglement that whenever a public institution was advantaging one or the other or even becoming excessively entangled with religion in any way, this was a violation of the Constitution.

SCOTUS archival: I discern eight eight grounds on which church state cases have been founded by this court. And I venture to say this in the first piece of legislation [00:13:30] ever before this court that violates all eight.

Nick Capodice: The Lemon test. Lemon v Kurtzman. So in the 1960s, both Rhode Island and Pennsylvania had laws that gave money to religious private schools. The court voted 8 to 1 that this violated the First Amendment. In his opinion. Chief Justice Warren Burger said that these laws established, quote, an intimate and continuing relationship, end quote, between church and state. [00:14:00] And the word that the court used in this opinion is entanglement. Church and state cannot be entangled. They must be separate.

Hannah McCarthy: What is the test, though, in the lemon test? Is it like you can look at a law and check off some boxes and determine if it's constitutional or not?

Nick Capodice: Yeah, essentially it's three prongs, a fork, if you will. Prong one purpose. Does the law have a religious purpose? Prong two effect. Does the law advance or [00:14:30] inhibit religion in any way? And prong three entanglement, does the law result in an excessive government entanglement with religion? You check any of those boxes, you failed the lemon test. That law is unconstitutional.

Morgan Marietta: And it essentially meant that we had to have a full separation between the two, which means that public institutions are essentially secular by constitutional mandate. That was the reigning understanding for about 50 years until very recently. [00:15:00] And with the current constitutional revolutions, the Supreme Court has essentially abandoned separation very recently.

Hannah McCarthy: What happened?

Nick Capodice: I'm going to tell you. About how the lemon test is now pretty much irrelevant. And we'll talk about everything going on when it comes to church and state in the modern court's era, right after this break.

Hannah McCarthy: But before the break, it is our podcast fund drive, which means that if you support our show, we'll give something back to you. It is a very cool vintage [00:15:30] baseball cap. If you make a one time donation of $60, it is yours. Click the link in the show notes. To do that or head on over to our website civics101podcast.org. I can say with certainty that this hat passes the lemon test.

Hannah McCarthy: We're back. We're talking about the separation of church and state. And Nick, you just spent a lot of time explaining what the Lemon test was, only to say that it does not matter anymore. [00:16:00]

Nick Capodice: Yeah, Lemon is gone, Hannah. No more lemons.

Archival: Happening today, the US Supreme Court set to hear the case of a former Bremerton High School football coach Joe Kennedy. So Kennedy last coach, the Bremerton High School football team seven years ago. The school district fired him for praying on the field with his players.

Nick Capodice: Kennedy v Bremerton School District 2022. Now, listeners might know this as the praying coach case. This is about a high school football coach named Joseph Kennedy, who prayed at the 50 yard line at football games. Students eventually joining [00:16:30] in. The school board asked Kennedy to stop to pray somewhere else or at some other time. He did not, and his contract was not renewed as a result. Again, here's Morgan Marietta.

Morgan Marietta: And there is a strong debate about the facts of the case, and I'd like to set that aside a bit, because the facts that the Supreme Court recognized were these that he did, in fact, pray. He did have some students join him, but he wasn't asking them to. They did it of their own free will. It was on [00:17:00] his personal time. It wasn't in class. That is not allowable. He wasn't proselytizing. But what he was was someone who was in this middle ground between whether he's a private citizen or he's the government himself, a teacher in a public school is both of those things. And this is why this is a tough case. He is a person and under the free exercise clause, he is a citizen with rights to be religious. And the state can't coerce him [00:17:30] into not being religious.

Nick Capodice: But also he is a member of the government. He is a public school teacher and a member of the government cannot coerce students to be religious.

Hannah McCarthy: So this coach, you know, as a private citizen and also a government employee, he's kind of straddling that border, right. If we're talking coercion, it's like who is coercing whom? Either he's coercing students to be religious or the government is coercing [00:18:00] him to not be religious.

Nick Capodice: Exactly. It is a very, very tricky situation.

Hannah McCarthy: So what did the court decide?

Nick Capodice: The court decided 6 to 3 in favor of Coach Kennedy in the opinion by Justice Neil Gorsuch. He says the school's case for firing the coach, "rested on a mistaken view that it had a duty to ferret out and suppress religious observances, even as it allows comparable secular speech." And in her dissent, Justice Sonia Sotomayor expressed [00:18:30] that the court had long said teachers cannot lead prayer in school and that this decision, "charts a different path yet again. Pain, almost exclusive attention to the free exercise clauses, protection for individual religious exercise while giving short shrift to the establishment clauses. Prohibition on state establishment of religion."

Archival: For the first time in eight years, Joe Kennedy will coach under the Friday Night Lights here at Bremerton Memorial Stadium. While some fans are coming [00:19:00] just to watch the football game, others will be here paying close attention to see what Kennedy does after the play clock runs out.

Hannah McCarthy: Okay, Nick, we've talked about the Supreme Court's interpretation of church and state. Now, I would love to understand something a little more tangible money that churches don't pay taxes, right?

Nick Capodice: No, they do not. Churches [00:19:30] are exempt from local, state and federal taxes.

Hannah McCarthy: And can churches get money from the government?

Nick Capodice: That is that's a little more fuzzy. Here again is Katherine Stewart, author of The Power Worshipers Inside the Dangerous Rise of Religious Nationalism.

Katherine Stewart: On the question of money, on the question of taxation, there has absolutely been backsliding because our founders were really clear that any form of government money for any church was unacceptable. Madison [00:20:00] And and Jefferson wrote that the very definition of tyranny. Tyranny they used that word was to, as they put it, tax Peter to pay for the religion of Paul. They said this repeatedly that citizens shouldn't have to support religions they did not wish to support and they were really adamant about that. But today, taxpayers are directly subsidizing religion in all sorts of ways, including tax exemptions, subsidies, direct direct funding [00:20:30] through a variety of means.

Hannah McCarthy: Does Katherine have any specific examples of this?

Nick Capodice: Yep, she sure does.

Katherine Stewart: So one example is the crisis pregnancy centers, which take in nearly $100 million every single year in direct government money and taxpayer funding. The state of Ohio alone spent $14 million last year on these right wing, typically faith based programs. They act like they provide medical care, but then they don't [00:21:00] they they exist to evangelize women in the form of religion that they want to promote. They might do a few other things, but that is their purpose.

Nick Capodice: A study that I found from 2021 cited that at least ten states have used federal grant money to fund anti-abortion centers.

Katherine Stewart: Another example about this taxpayer funding of religion is vouchers for religious schools, which, as you know, school vouchers direct many millions of dollars in taxpayer funding to religious groups. They want [00:21:30] the government to pay directly for religious schools, which are then free to teach Christian nationalist versions of American history or inculcate students in contempt for other faiths. And right wing legal activists are setting up a case in Oklahoma right now to that end. So not paying tax to support any church you don't want was one of the clearest aims of our founders. We are where we are now because of five decades of investment [00:22:00] in the infrastructure of what I call the Christian nationalist movement.

Nick Capodice: And I have to jump in here to make something perfectly plain. When we talk about religious nationalism today, specifically in the United States, Christian nationalism, we are not talking about Christianity or any other religion. This is something entirely different.

Katherine Stewart: Listen, let's really be clear. Christian nationalism is not Christianity. It's not a religion. Christianity [00:22:30] in America is very diverse. So Christian nationalism is a political phenomenon that involves the exploitation of religion for political purposes. I think of it as combining two kinds of things. On the one hand, it's a set of ideas, an ideology, and on the other hand, it's a political movement, an organized quest for power as an ideology. It boils down to the idea that America was founded as a so-called Christian nation. Christian here, referring to a very conservative [00:23:00] or reactionary conception of that religion. And it says that all of our problems stem from the fact that we have supposedly forsaken this, you know, this kind of heritage. So it's a kind of there's an ethno nationalism sort of built into it. But this ideology is a tool. It's really just a tool for a leadership driven political machine that turns this story into political power.

Hannah McCarthy: This ties into something else that I'm [00:23:30] curious about. Can churches support political candidates? Like can they give to campaigns?

Nick Capodice: No, they cannot. And this is due to something called the Johnson Amendment.

Katherine Stewart: The Johnson Amendment is a provision in the US tax code has prohibited all 500 and 1C3 organizations, nonprofit organizations from endorsing or opposing political candidates. But of course, it's totally ignored or circumvented on the ground, often through what they call values voting. They [00:24:00] will put out voter guides that don't endorse any particular candidate, but they'll say they'll say they'll put the two candidates side by side and how do they vote on abortion? And so you're supposed to look and say this one checks all the boxes for biblical values, abortion, biblical marriage, etcetera. So that's one way they get around that. Now, you know, I've been working in this field for 15 years. I've published two books on the topic. And I've attended some [00:24:30] events at conservative leaning churches that talk very specifically about political candidates. But I've attended even more that will say up front, you know, we don't endorse or oppose any particular candidate. But then the way they talk about the election leaves absolutely no question in anybody's mind how you're supposed to vote in order to reflect those so-called biblical values and get people to vote one way or another.

Hannah McCarthy: Nick, [00:25:00] all of this leads me to ask, can we think of religion as just speech? Speech from a religious point of view?

Nick Capodice: One could argue that it is, but Kathrine points it out to me that it isn't. According to our tax code, religions enjoy tax privileges and benefits that for profit and nonprofit companies do not. And also religious organizations are permitted to do other things that would cause a non religious enterprise to be, rightfully, [00:25:30] sued.

Katherine Stewart: Religions are allowed to do things that no other companies and nonprofits are allowed to do. They're allowed to discriminate against women. They're allowed to discriminate against people of other ethnic backgrounds. They're allowed to exclude gay people from positions of leadership. So when they want their special subsidies and their legal privileges and their tax privileges, they say, oh, we're just speech like everybody else. But when they want to get into, [00:26:00] you know, public education or when they want to force their programs into government, they say, no, no, we're just like everybody else. So they're really trying to have it both ways. They want to have their cake and eat it, too.

Nick Capodice: I want to end here with something that Morgan mentioned to me. I mean, I went into talking with him, thinking I had like a pretty good handle on church and state. And I left the interview more uncertain than when I went in.

Hannah McCarthy: Why? What did he say?

Nick Capodice: Well, [00:26:30] he talked to me a lot about rights versus powers. Who would you say that rights are for?

Hannah McCarthy: I would say that rights are for people. We always say that rights protect people often from power.

Nick Capodice: Yeah. And I would go on to say, the more power you have, the fewer rights you need. Morgan told me You can't have a conversation about church and state without first having a conversation [00:27:00] about how you view the Constitution. Now, Catherine pointed out the growing power of the religious nationalist movement. I mean, the subtitle of her book uses the word Dangerous; The Dangerous Rise of Religious Nationalism. It is a fact that if we are talking about the Supreme Court, the current court has overwhelmingly ruled to advance conservative Christian values. But at the same time, when Morgan was telling me about the praying coach case, he pointed [00:27:30] something out that I had not considered. That if we're talking about people, Americans, instead of organizations or courts, he told me that only one out of three Americans say they are churchgoers.

Morgan Marietta: But two out of three are not. And the people who have no religious beliefs at all and no interest in it are about a quarter or a third of the population. But those people who have rights, they are now more protected. The coach is more protected now than he used to be because he is a minority and minorities [00:28:00] are what are the beneficiaries of rights protections. So you can't get around whether you're going to decide an original constitution is how you read it or a living constitution is how you read it, especially in regard to religion. You've got to pick. And it either means that we protect religious citizens. Under an original constitution where it means that we separate under a living constitution. And you must decide what this means. [00:28:30]

Nick Capodice: So. Gotta choose.

Nick Capodice: Well, that's church and state. I'm going to be thinking about it for a long time. Thank you, Charlie and Anthony. This episode was made by me Nick Capodice with Hannah McCarthy. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. Music in this episode by Jesse Galagher, Hanu Dixit, Ikimashu oi, HoliznaCCo, The New Fools, Howard Harper Barnes Fabian Tell, Valante, Kurt Lyndon, One Two Feet, Ava Low, Chill Cole, APPOLLO, Bio Unit Erik Kilkenny and the man who separates his songs into just the right key, Chris Zabriskie. Civics [00:29:00] 101 is a production of NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Why is our union so imperfect? (With Jill Lepore)

Pulitzer-prize winning historian and author Jill Lepore has spent her career uncovering the stories we often do not tell, particularly about American history and democracy. In her most recent books, These Truths and We, the People, she asks what really made and makes the United States and what role citizens have in arching toward a more perfect Union. Listen in as she talks about her work for Writers on a New England Stage, recorded at the Seacoast Litfest in Portsmouth New Hampshire.

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Transcript:

Hannah McCarthy: Pulitzer Prize winning historian and author Jill Lepore has spent her career uncovering the stories we often do not tell, particularly about American history and democracy. In her most recent books, These Truths and We the People, she asks what really made and makes the United States and what role citizens have in arching toward a more perfect union. I'm Hannah McCarthy. Listen in as she talks about her work for writers on a New England stage recorded at the Seacoast Lit Fest in Portsmouth, New Hampshire. Jill, I'm so thrilled to be here with you today. Jill. I'm going to get it out of my system now. I host a civics podcast, Civics 101, as Jim mentioned. I read a lot of history. I read a lot of civics government books, and I never recommend them to my friends because my friends are brilliant, but they are not of this world and they wouldn't find it interesting. These truths was the first history book I recommended to people to whom I never would have recommended a history book. I find it, I truly find it that compelling. And before we get into, you know, the the meat of this book, part of what makes it so compelling, I would first just love to know. Jill, what is it about you that made you someone who would endeavor to. And then successfully write a history of the United States.

Jill Lepore: You know, for years I had been asked by various publishers to contribute to a U.S. history textbook. So in the college classroom, textbooks are dying because of shifts in the publishing industry and because you can sort of assign crap from the internet for free, and schools don't have any resources. But there are still U.S. history textbooks, and they're mostly written by teams of scholars. And you write a section that is your area of expertise, and they read like books written by teams of scholars, which means they're not fun to read and students hate them. And so I'd always said no. Like, I just thought that that's the kind of writing I'd never want to do. Um, but increasingly I was concerned by the kinds of books, not so much that college students are assigned to read, but that the public had on offer if you wanted to, as an American or as an, you know, person interested in the United States, to have a sense of the sweep of American history. And you went into a bookstore, you trawled around Amazon. There really was really very little to choose from. Maybe there was, um, you know, like, um, a Bill O'Reilly book, Killing America or something like that. Or maybe there was Howard Zinn's A People's History on the left, or maybe there was this Newt Gingrich book to Renew America.

Jill Lepore: It was very pious. And so at a certain point, when Norton, my publisher, asked me, okay, we'd like you to write a textbook, but just you. What about just you? We don't have we don't really do that anymore. Like a single person writing a textbook. And I said, well, now I'm kind of interested in doing that, but I actually want to write a trade book. I want to write a book for ordinary, you know, for regular readers. And then we can kind of convert that into a textbook and sell it in the college market if you'd like to. And they were like, do you really think a bookstore is going to sell any copies of a big, long history of the United States? Well, I don't know. No one's done it in a long time. So it really was just the short answer is it was the kind of Girl Scout sense of duty, because I didn't really think it would be, like, fun to write. I wanted that book to be out there so that my friends who would never read a history book would have something that they could read if they just kind of wanted to understand the shape of American history.

Hannah McCarthy: Yeah. Was it any fun to write?

Jill Lepore: It was, um, I think the challenge of it was really interesting. The parts that were least interesting were parts I knew the best. But I had, like I wrote chronologically, I outlined the thing and then I kept these three stacks of books in my office, like a stack of books, generally for the chapter I just finished writing that I needed to haul back a stack of books for the chapter I was writing, and then I'd kind of accumulate the books for the chapter I was about to write. And I just would, you know, every day I'd take a book off and take my notes and finish the stack, write the chapter, move those books to the next. Try to anticipate, because I had a very quick turnaround time for a book that was a thousand pages. So I like a race. I love writing fast. I love a deadline. I published a book of essays a few years ago. It's called The Deadline. Just kind of I love deadlines, so I had a very strict schedule for myself. Like I really had to write a chapter a month, essentially. And that's tough. I mean, the books like 350,000 words, but I, I think the, um, I don't know, the kind of like NASCAR of it all was fun.

Hannah McCarthy: You, you write in the introduction to the book that it is in part designed to be an old fashioned civics book. And if you think of civics as the study of the rights and duties of citizenship. What duties do you hope that your readers take away after reading this book?

Jill Lepore: Well, honestly, I think if you read the book, you can check a lot of things off your list in that one of your obligations in a democracy is to be well informed. And that usually in our contemporary lives, is narrowed to, did you scroll through the headlines and your Apple News feed or whatever? Like there's a few things you know are going on, but I don't think that is being a well-informed citizen. I actually think that historical knowledge is a piece of what's required for being knowledgeable in the world as a citizen. I mean, it's a little bit like if being a citizen was I'm thinking that we're at the seacoast thing. So I'm kind of trying to come up with a maritime metaphor. If you know you wanted to get your captain's license, you know, you actually do need to have some hours on a boat steering it, you know, not just along the coast, but out into the open ocean. You need to know how to repair your motor. You need to know how to you know how to call the Coast Guard. What to do if you encounter another vessel in danger. Like you need to kind of study up, but you also need to be out there on the water.

Jill Lepore: And I like the way we think of what a well-informed citizen is by kind of scrolling through the headlines. Like, that's like looking at a postcard of a boat. Like it's just not that doesn't really constitute the knowledge that you need to be a captain of an ocean going vessel. And that's, that's the person who walks into the bookstore and is like, what can I read that will tell me about American history? Like, that's the thing that wasn't there. If you wanted to become well informed that I was, That's a need I was trying to fill. And I would also say like, I don't think other people have written sweeping accounts of American history since this book first came out in 2018, but I hope they do. Like, I wasn't trying to say like, ta da! Here's the one and only account of American. I was trying to say like, here's a thing historians should do. And so that readers would have the ability to encounter a book like this and, you know, get their captain's license.

Hannah McCarthy: Yeah. Something that I love that you do in your writing is you bring in little moments, little stories, little details, uh, some of them you describe an older woman tapping a young man on the shoulder and embracing him in what would become Sierra Leone. That woman was his mother. They were formerly enslaved. It was moments like that in the book. I have to pause. I have to put it down because otherwise I'm going to soak the book in tears. What compels you to include those little details that may not, I suppose, directly inform the Ark, but to me at least feel incredibly important to the narrative.

Jill Lepore: Yeah, I do think they're important. And I guess one thing I would say is that my style of writing comes out of narrative nonfiction more than it comes out of academic history. So narrative nonfiction is, you know, a true story that takes the form of fiction, like in its in its literary sense, there are plot, there are characters, there's plot, there's suspense, there's a, an attempt to achieve an emotional response from a reader. That's what a novelist does. And the reason, I mean, there are many reasons I write as a narrative nonfiction writer, but one is it's my experience. Well, there are two. I guess there's two big reasons. One is there are a lot of big ideas in a book like this, right? You have to understand sovereignty, populism, personhood, conquest, whatever. There's like big ideas, evangelicalism. And in my experience, people can digest ideas better if they're attached to a person. So especially when I'm trying to wrestle with a really big idea, I introduce a character, a real life person whose world experience embodies this idea. So when I talk about, say, 19th century agrarian populism, I this kind of short profile of this woman, Mary Lees, who was a Kansas mother of six who was known as the Amazon of the West. She was an incredible speaker. She was like six foot tall.

Jill Lepore: And I feel like people will remember Mary Lees. And if they can't remember what populism was about, as long as you can remember some details from her life, you know what populism was about. So there's that. If you start a novel, even if you don't really like it, you tend to finish it because you want to know what happened. But if you start a nonfiction book, or let's say you start a journal article like the Journal of American History, and you have no reason to finish it. And seldom does anyone do. Um, like you just read the abstract and you're like, okay, I know what this argument is. This is an argument that, uh, 19th century populism was informed by the Railroad Act of 1862, without which we would not have like, it's just an argument. And there's no you could read the article if you wanted to have the evidence trotted out and the historiography presented for you, and then the argument repeated, but you don't need to get to the end of the story. You don't need to know what happened to read a journal article. You just need the argument. So I want people to both get to the bottom of the argument and get to the end of the story. So the way I write is to begin with a story and then weave the argument like it's like braiding the argument through it and get the argument deeper and deeper and deeper.

Jill Lepore: The more the story progresses, so that the reader will be taken by the desire to get to the end of the story and find out what happened, will be taken all the way to the end of the argument, to the bottom of the argument. And like I write for The New Yorker, and that's how my New Yorker essays all work, right? Like you, you have to you have to hope that the reader, you've structured the thing such that the reader will finish the piece. Now, I know sometimes people don't finish New Yorker pieces. I've heard this, but that is the goal. And the way that works is I'm not going to just stand here and say, here's my argument about American history, because then why do you need to read the book? You want to actually have an experience of that moment of emotional connection with the character, of being startled or bewildered by the irony of something, of being moved by the quiet heroism of someone, of being struck by the resonance with our own day, whatever it is that just kind of like, like a little bit of Velcro to hold you onto the page.

Hannah McCarthy: Mhm. Were there any threads that you were particularly enamored of that you felt either didn't fit into the book? Right. You couldn't you couldn't end that story. Or they went in a way that you really couldn't find a place for in your history.

Jill Lepore: Well, I wrote the book before the Covid pandemic, and I thought afterward, although there are a lot of epidemics and pandemics in the book, you know, beginning with the decimation of the indigenous population of much of the Americas, the Spanish influenza epidemic of 1918. And there's quite a bit about polio in the 1950s. Like I afterwards was like, well, readers in like 2020, 2021 are going to be frustrated that there's not more presence of the role of disease across American history. I think that the book is. There are many weaknesses in the book, and one is, I think it it's weak on foreign policy. And if I were starting out all over again, I would force. I'm not interested in foreign policy. So I would force myself to pay more attention to it because by the time you get to, I, you know, the 1950s in Korea, I think the readers like. And what are they doing now? Like, like, you know, the cold. It's not that the Cold War doesn't happen or the war on terrorism doesn't happen, but I think we're somehow not set up enough. Structurally, the way the book works architecturally, that was just a failing of mine. And maybe, you know, there are things that have to do with the speed with which I was writing. But for this new edition that I just signed all these books for you all. So the new edition that's come out, there's a new chapter that runs from Election Day 2016, where the previous edition ended to, you know, Trump's second administration. And as I was writing that, I was like, well, I wonder if I've really planted enough seeds in the earlier chapters that you could understand Trump's foreign policy. That was a question I asked myself a lot, was that when I was writing that?

Hannah McCarthy: So it's interesting you have the opportunity to add a bit to the book. Do you think having written A history of a nation as a history marches on? Do you fear or are you concerned that you may have a longing to continue to add to this?

Jill Lepore: No. Historians, in my experience, certainly me, hate to write about the present. If we wanted to write about the present, we really wouldn't have become historians. So there are plenty of historians who do write about the present, or most of them you see on TV frequently, and they like to talk about the present. When I first agreed to write the book and I outlined it, I wanted it to end with Barack Obama's inauguration in January of 2009, because I figured the book would come out 2018, 2019, and that was like ten years in the past. And it's a good ending for a book. It's a great scene. You know, there's a kind of like a shoe drops. But it was also safely in the past, which I was comfortable with. But as I was finishing the book and I was like, in the last year of writing the book, Trump was elected. And I just thought, oh, shoot, now I need to actually write a whole history of the Obama years so that I can end on Trump's election, which is also a very weird ending to a book, because it's not like a shoe drops. It's like you throw a shoe up in the air and everyone's like, where's it gonna land? Um, so it really wasn't like it was very hard place to end the book. People still the historians political science still don't really understand Trump's rise in 2015 2016. I still don't think there's like a definitive great account of that. That was hard enough. And then being asked to like add a chapter that would go up to the present. It was really, really, really, really hard. I don't expect to do it again in my lifetime.

Speaker 3: Coming up, more of my conversation with Jill Lepore, recorded live at Seacoast Litfest for writers on a New England stage in Portsmouth, New Hampshire. Jill Lepore, New Yorker staff writer, author of many books and professor of history and law at Harvard University, has spent a career noticing and sharing the vital details that are often left out of the narrative of American history. Her latest and Pulitzer Prize winning book, We the People, asks what role citizens truly play in the making of American democracy. While her best selling book, These Truths, gives us a new history of the United States.

Hannah McCarthy: I really want to talk about. There's a through line in your book. You talk about the numbers game, the math equation that is a government by the people and for the people. And and in the later third, fourth of the book, you talk about the development of machines that are able to count and quantify and sort by demographic people. And it seems to me that the ability to sort us in that way smooths out not just individuality, but the disagreements and nuances of the group or the community. What do you think was the effect on the power of the people, the ability to have a voice after you had both the media and parties sorting people by demographic and targeting them by demographic?

Jill Lepore: Yeah. All right. Well, this is not something I've argued before. I'm going to throw out a theory.

Hannah McCarthy: Lay it on.

Jill Lepore: Me. We could think about American history as in its political culture, as going through several different stages. So, you know, there's party politics. We understand what party politics are. You know, the parties, organized parties are loyal dissent. They organize dissent. That's what. There's a party in power. There's a. There's a party in opposition. It organizes legitimate political dissent. Then you have kind of machine politics where the same is true. It's party politics. But a political machine is doing the work of the parties. And then you have interest group politics, really by the 1950s, say interest groups are really important, not segmenting the population, but but groups beyond that are smaller than the party. Right. So maybe the suburban voters, how are veterans kind of large groups? And then by the 1970s, you have identity politics and you cannot have identity politics without the segmentation of the population through mainframe computers, without kind of beginning the beginnings of micro-targeting of populations, like, okay, it's not just suburban voters. It's a 47 year old Detroit housewife who's Catholic and Irish. We're going to send her this one message. But the person who lives next door, who's a 30 year old welder, who's Detroit born and is a veteran, he's going to get a completely different message.

Jill Lepore: So I think we think that identity politics kind of came out of racial liberation and women's liberation. And the gay rights movement in the 1960s really came out of market research. It comes out of market research, completely takes over the Democratic Party. The Democratic Party becomes the party of identity politics because that's how they're doing. But it also, of course, affects the Republican Party. But I think what we're in now, so if we go back over my little I like truly just invented this. So I'm not going to defend it. But, you know, party politics, machine politics, interest group politics, identity politics, you would say we're in now something that we might call artificial politics, which is to say you are actually just a piece of data and you're not even really like a 47 year old housewife, mother of three who's Catholic and Irish from Detroit. You're just much less than that. And you're representing not your own self, but an avatar of You is operating politically. I just think it's a completely different ball game. But each of these developments is affected by shifts in technologies of communication.

Hannah McCarthy: I have a friend who I love very much who has voted or not voted based on whether or not she believes her vote is going to mean anything, depending on where she lives. And I have always argued that she should vote no matter what. And the only argument I ever made that I found worked for her was, if you go out to vote and you get people who are also of your same demographic to go out to vote, than the people who you think are ignoring, you might start to pay attention to you because there are more first generation white women with a college degree between the ages of 30 and 40. But having read your book a couple of times now and really trying to think harder about this, that really does, I think, strip away something more important, right? Because what does that demographic even mean? How can we possibly understand what that demographic wants? Right? I fit into the same demographic as a lot of people, but we don't want the same things necessarily. And that brings me, I think, to this idea of polling. So you talk about polling in your book now as a journalist, I have been warned by many social scientists not to rely on polls because they don't actually give you the answer that you're looking for. And I'd love to know, you know, you don't not that I can see in the book. You don't flat out condemn polling, but I'd love to know your opinion of the rise of the Gallup poll and what that then meant for the way that party's treated the supposed desires of the electorate.

Jill Lepore: Yeah. I, um, I wrote an article for the New Yorker years ago called politics and the New Machine. That was a kind of history of the polling industry at the cusp of when the polling industry was becoming obsolescent and was being replaced by data science. Like, um, there is still polling, but really most political consultants and in fact, most reporting organizations are using data analytics. Like they don't need to call someone on the telephone and ask them what they think. They, they can know that in other ways. So it's not the polling doesn't still exist, but it's a completely different thing than than what it used to be. There are polls in the 19th century, but they're not scientific polls. So modern scientific polling, which is using a representative sampling of the population, dates to the 1930s. And George Gallup's American Institute of Public Opinion Research soon after, followed by Elmer Roper and then the Fortune Survey, and then public opinion surveying becomes a huge thing in the academy and social scientific research from the start. There were, and there, of course, remain all kinds of concerns about polling that it's wrong in the sense of inaccurate. And I think we're all familiar with that. I'm like, well, then pollsters will say, well, we're better now, or we have these corrections and we aggregate the polls and we take the whatever, like they're just an evergreen.

Jill Lepore: There's always concerns about the accuracy of the polls, the reliability of the polls. And I think we all know that we should be cautious about looking at polls. Or are they too far in advance? What I think we have forgotten, and what this piece was really trying to engage with, is that the polls are wrong in the moral sense that in fact, it is wrong to pull the population. And that actually has been a critique that has been made since the beginning of scientific polling, including by George Gallup himself. So Gallup was doing he had a newspaper column called America Speaks. It was syndicated across the country. When he would report like, here's what Americans think about toothpaste. Here's what Americans think about Germany. Here's what Americans think about Neville Chamberlain. And there were like a lot of doubts about it. People were like, how do you know? What is this method, this scientific method? And so he kept trying to drum up subscribers for his syndicated column. And he said, you know what I'm going to do? I'm going to prove that my public opinion surveys are accurate because how do you gainsay that? Like, and he said, I'm going to do that by predicting the next election.

Jill Lepore: I'm going to ask people who they're going to vote for, and then I'm going to tell you who's going to win, and that will prove that my opinions are. But I want to be clear. I know this is wrong. It would be. It's dangerous to democracy to actually try to figure out in advance who's going to win an election, and then tell people that would be wrong and our politics. And he does it very apologetically and for a couple of elections, he's right. And then famously, of course, everybody's wrong. In 1948 when when Dewey does not beat Truman. But what happens is that people love it. And so he's like, oh, I do think this is wrong, but he keeps doing it and then increasingly becomes like the the best seller of his business. So in other words, even the person who started Armenia for these polls understood them as somewhat dangerous to democracy. There was a great critique of polling written in 1948 by a political scientist named Lindsay Rogers, who had a book called The Pollsters, in which he explains how dangerous it is to representative government to announce the public's opinion of the possible winner of an election in advance of an election.

Jill Lepore: And, of course, we forget that other countries have bans on polling. Like in some countries, you you cannot do polling. You know, in the last 200 days before an election or like there are a lot of countries that have some constraints on public opinion polling because it interferes in the process of, of, of, of learning about candidates and has been demonstrated to distort elections by elevating candidates with high name recognition or whatever, or some of the, some of the problems polling. I just think it's weird that we don't even talk anymore. Or for instance, like, like NPR has like, what are they? I think they partnered with like Quinnipiac or something. The first news sponsored poll wasn't until 1975. It was a CBS sponsored poll, and it was roundly condemned. Like, wait a minute, you're supposed to be reporting the news. Not making it like to produce a poll is to make the news. How can a media organization do that in any ethical way? And yet we completely accept, you know, after a matter like maybe five, ten years. Obviously, the media is going to be doing polling all the time. It's just that it's I find it to be a weird, inexplicable deformity of our politics.

Speaker 3: We'll be back with more of my conversation with Jill Lepore, including some questions from the audience at Seacoast Litfest when writers on a New England stage continues. Pulitzer prize winning historian and author Jill Lepore has spent her career uncovering the stories we often do not tell, particularly about American history and democracy. I'm Hannah McCarthy. Listen in as she talks about her work for writers on a New England stage recorded at the Seacoast Lit Fest in Portsmouth, New Hampshire.

Hannah McCarthy: I would love to keep asking you questions, but there are people in the audience who I believe have questions of their own, and I would love to hear those far more than the sound of my own voice. Please come on down. We've got a mic for you.

Speaker 4: Great talk. Just following up on what you're talking about. Now, I'm struck at how little conversation there is in politics now about policy, and particularly across party lines about that. And I was wondering if you would comment on what has caused that and how we might rectify it.

Jill Lepore: I assume you're talking about national politics. Yeah. I think in the States people still talk about policy. I think most states are still governed in interesting ways that involve, you know, bipartisan coalitions and citizen participation in governance. Nationally, I think part of the reason we don't talk about policy is neither party has a coherent one, um, or really a coherent political philosophy anymore. Political scientists talk about the parties as being hollowed that there's just like, there's like a, it's like, you know, for Easter Sunday, you ever blow the eggs out? Like that's what the parties are now. There's like nothing inside. And I don't think that that's likely to change until a fairly significant political revolution deals with the problem of money in politics.

Speaker 5: Thank you so much. It's it's really a pleasure to have this opportunity to ask you this question. We you spoke about identity politics. You spoke about interest groups, and I lived 20 years overseas in developing countries and have been in a different headspace for a long time before I came back during Covid. And one of the things that's really struck me is that we have two slots to put our put our put our faith in Democrat or Republican. And it seems to me that the US would really benefit from a parliamentary system. And in that way, these interest groups become parties themselves and have a stake and have seats. And and those extremist wings have their places and then are automatically, in a lot of ways sort of pushed to the sides. Whereas in our country, the extremist groups, due to the way that we do our elections and primary system, take over our parties in a lot of ways. And I'd love to hear your thoughts on that. Thank you.

Jill Lepore: Yeah, thanks. That's a great question. I think I think a lot of political scientists share your view. I think there's a lot of empirical evidence to support your view. What's challenging is to imagine how things can change. I think that's generally the problem in how we think about at least the the politics nationally these days is any kind of vision for change. But I could imagine the existing two party system being successfully challenged in some states. And I think that's where I look for political reforms, imaginative political experiments. And I tell my students all the time to spend some time thinking about how to get involved in state politics. I just think there's more room for things to change.

Speaker 5: Do you do you think we're at a place right now with not only the division, but also the hunger for that kind of change that perhaps we have an opportunity, uh, rather than things collapsing into a state of total incivility and possible civil war, or in whatever that would form, it would take, but rather the opportunity to say, cleaving off, finding different ways. I think Plattner is perhaps an example of this AOC, others. Thank you.

Jill Lepore: Yeah. I mean, I think that it does feel to me like we're at the beginning of some kind of a political watershed, but I don't know how to really assess whether that's the case or that's just a fantasy on my part. But but there tend to be. I don't think there's a lot of incremental change going on. So I feel like there's something likely that will be overwhelming. And I find that both exciting and terrifying. I'm in a meliorist and I don't really like revolution. Um, I don't know. I don't know how we would know it was starting until it really started. And I don't think it's quite started and I don't see the organizational infrastructure for such a thing. I mean, so it's easy to say, for instance, compare the Tea Party movement with the no Kings rallies. And although we think of the Tea Party movement as in some ways, you know, defunct and unsuccessful, the Tea Party movement had a legislative agenda that has largely been accomplished, whereas the occupy movement had none of that, and nothing has been accomplished that it was on its non agenda. I guess a concern, if you're thinking nationally, is that like the no Kings movement is not an an organized movement for change. It is a performance of resistance.

Speaker 6: Thank you for a very interesting talk. Thank you also for writing as much as you have. Thank you for the name of war. Thank you for historians who love too much. Thank you for this book because as you sort of suggested, the last time I read a full survey of U.S. history was 50 years ago when I was when I was 16.

Jill Lepore: What one was.

Speaker 6: It? It was garrity's. I forget what it was called, but it was. Oh yeah, it was a standard AP history textbook in the 70s. I admit to not having yet finished this book. I have 204 pages to go, so I've made good progress. But as I look.

Jill Lepore: Spoiler.

Speaker 6: Alert in well, not asking for as I as I read it and I felt that I discerned a through line and I have a feeling it was intentional, but you can tell me if it was intentional or if I'm off base of perennial sustained internal conflict that that from the beginning there have been thoroughly fought out, sometimes with weaponry, philosophical and political conflicts in this country. And so that made me think harder about whether what we see today is necessarily that different from things we've seen in the past. We've fought three bloody civil wars already. I'm not looking for another. I'm not suggesting we're going for another. But was conflict really a through line in there? Am I misreading it?

Jill Lepore: No. You're not misreading it. I think that, um, you know, there there are plenty of historians to get to your sort of historiographical point of view that would support the contention that American history is characterized by a kind of Manichean battle between liberal and illiberal forces. Uh, I think that's almost essentially irrefutable. And especially if you're trying to be broad minded and not write a partizan or highly ideological account, you're going to be constantly. And then these people tried to do this, and these people said, no. And these people tried to do this. And these people said, no, we're doing this. And these people said, no. Like, that's the story of America. Like, that's like, that's the story of most people's, right. So yes, that is a through line. I think that we, it maybe looks more prominent in the way you would read the book in 2026 or even in 2018. Um, then maybe then maybe I meant it to be. Um. But I do think there is something different about this moment. And I think that's largely to do with the difficulty of extracting ourselves from this kind of like hands around each other's throat or like, you know, that scene in a kind of holed up movie where the two guys each have a gun to the other guy's head and you're like, what's going to happen next? Like, that's sort of how it feels in that that gun is, is basically social media. Like, you know, until we disarm social media, I don't think we can have a republic.

Speaker 7: Thank you.

Hannah McCarthy: And I know we have a long line there. We have about five minutes remaining. So probably a question or two.

Speaker 8: Um, religion has been extremist religion from my Puritan ancestors and to the Spanish and the southwest and the in the early 1600s through history. Is there any feeling of that thread? And also, does that can that help us understand the rise of Christian fascism?

Jill Lepore: You know, I remember learning when I was in college, when the Moral Majority remember Jerry Falwell and the Moral Majority of 1979 and the so-called Christian right emerged. I remember being taught in history classes that this was the first time Christian Christianity organized Christianity had influenced American politics. And I was like, and certainly there was actually a lot of commentary about that. There was a kind of like, that's what you'd hear on the news. Maybe that was more on the news than in a classroom. But like organized religion has always been part of politics in the United States. And as I was trying to sort of emphasize earlier, certainly not exclusively on the right or on the left, I would say more often in American history, Christian churches have been involved in social reform, moral crusades for equal rights coming from the left. It's sort of what was kind of unusual about Jerry Falwell was that that was coming from the right. So to answer your question, I mean, like, absolutely, it is a through line. Um, but I think it's, it's, it's important to me as a historian, but also as a person of maybe little faith, but some faith to be, to be clear that I don't think that's like a demonic force in American history. I think, um, I think of the incredible work of temperance reformers. I'm not a supporter of prohibition, um, but temperance reformers and the Women's Christian Temperance League union really were committed to ending domestic violence. I mean, the reason to try to get rid of alcohol in the United States was because, women and children were being so often beaten by their drunken husbands or abandoned by them, and it was a way before women had the right to vote, to try to exert some kind of political power through a moral crusade that was rooted in their religious experience. So I think it's I guess I just would agree with the idea that there's a lot of religion in American history. It often bleeds into our politics, um, and often in, in very powerfully good ways and often in very powerfully bad ways.

Speaker 9: Just a simple question. Do you think that the US Constitution would have been would have been written and structured differently if the idea of political parties was more prominent in 1787?

Jill Lepore: Yes. Okay. Next.

Speaker 9: How?

Jill Lepore: It's not only that there were no political parties in 1787, it's that they were in impossible to conceive of because political parties were considered inimical to Republican forms of government, that any Republican government that had parties would succumb to factionalism and destroy itself. So things like the amendment mechanism of the Constitution in Article five, whereby to become a part of the Constitution, a proposed amendment has to pass by a double supermajority in both houses by two thirds vote, and then by three quarters of the states. We can't do that. We haven't meaningfully amended the Constitution since 1971. For most of American history, it's been impossible to amend the Constitution because our our constitutional amendment mechanism is so difficult that math would not have made any sense to people who anticipated political parties.

Speaker 10: I, I work in an elementary school and I go into classrooms and they're teaching social studies, and I go in and they're talking about checks and balances. And we're talking about the Founding Fathers and the Constitution, knowing what this present administration has done with our agencies. Okay. As well as national policies and just decimating things. What can we say about what's going on with our checks and balances while this is all happening in front of us?

Jill Lepore: Um, there was a lot of concern in the 1930s that FDR had destroyed the system of checks and balances by founding New Deal agencies that were perceived as usurping the power of Congress and moving legislative powers to the executive. And I think in some ways, the conservative insurgency that holds power in the United States today in the federal government, sees itself as undoing the New Deal. But but at the same time, redoing the New deal. I think the comparing the different uses of executive and legislative power in the 1930s and the 2020s is a really interesting way to try to be non-ideological in how to think about what checks and balances are, and under what conditions emergency powers can be used. Because one of the things that FDR did was say that he was using emergency powers. He was dealing first with the Great Depression and then with the emergency of the Second World War. And the new chapter of my book that you all now have is called A State of Emergency. It is largely about the Trump administration usurping legislative powers and taking them into the executive branch and also asserting judicial powers, which is the thing that that FDR did not do by declaring emergencies that I would say empirically do not exist in my house. When my kids were little, we had a constitutional convention every Labor Day weekend before the school year began.

Jill Lepore: And you're like, I'm so glad I didn't grow up as one of your kids. And we would take the Constitution off the refrigerator from the previous year and we would examine like what the truth, you know, the allocation of chores were what everybody's bedtime was. And we would entertain proposals for amendment and we would amend it every year because the kids got older and your bedtime is going to be different. And also if like last year, you were in charge with washing the dishes four nights a week, and what you really wanted to do was to be the person who vacuumed the stairs or whatever, like whatever. We just, we would revise the Constitution every year. And there were obvious exceptions. Like, um, if we were Knicks fans, like bedtimes would not have mattered the last couple of weeks. Right? Like that's an emergency. But like other things maybe wouldn't have been really emergencies. Like I really want to watch this movie is not a reason to adjust your bedtime like I think there are to return to your civics education. Like I think that kids understand what a check and a balance is pretty easily because they're negotiating with their parents or with their teachers all the time about the rules under which we live together and that if someone's abusing their powers all the time, like, you know, we often had a problem that one of our kids would pay one of our other kids to do the and like, that's a constitutional violation.

Jill Lepore: So there has to be a way to address that. And, you know, maybe like, so then there's going to be like, we're going to have an amendment that if you do that, you're going to be fined and you're going to be fined at a rate of like 200% of what you charge the kid. And it's going to come out of your we didn't have allowances, but like whatever. Like, I think that kids can understand if you don't have rules, you live in chaos. And the way to abide by the rules is to help make them. And this gets back to your question about reading the Constitution, its legibility. How do. How would we revise it? What would we write it now? But there is I don't know if I'm misreading the room, but like a little bit of like dreariness and dread about the world in the room. We're like wearing this, like, mantle of powerlessness between like, we can't change the fucking government.

Jill Lepore: And AI is destroying everything we love and care about, including bookstores. And I can't even have like a printed newspaper anymore. Like just the things everybody's kind of mad about and we feel so powerless about. Um, but I think in that, like we created this government by our own consent, we can revise it, we can reject it, we can rewrite our state constitution. New Hampshire wrote the first constitution in this country in January of 1776. It is the 250th anniversary of your first state constitution, the first written constitution in the United States. It is a time to think about. Do you have a government that represents you? If you don't, how can you make sure to have it? How can you consent to a government that you admire, that is in the interest of everyone where you are willing to make sacrifices in the interest of other people, and with an idea of the public good? That is what the country's history really is a gift to all of us for. It's really exciting to be heading toward July 4th, and as a way to maybe claim that moment to begin the watershed of whatever the questioner asked. So I just want to thank you all for coming out for this conversation and thank Hannah. It's been a real treat.

Hannah McCarthy: Jill, thank you so much. I just want to say my thanks to the Music Hall Acting President and CEO Joe Gleason, New Hampshire Public Radio president and CEO Jim Schachter, production manager. Dan Cahill, NH Public Radio program director. Emily Cork, the music hall literary producer. Brittany Wasson, the music hall production manager. Aidan Kellerman, the Music hall live sound and recording engineer Ian Martin, the music hall lighting and cinema coordinator, Drew Fabrizio. Thank you all so much. This was wonderful. Thank you.

Why is Congress like this?

Today in our continued exploration of why the US is the way it is, we get to Article I. Why did the framers design Congress the way they did? Why did the small states come out so far ahead? And what, potentially, would James Madison think if he saw its operation in 2026?

To help us navigate the thoughts of men long-dead, we talk to Madison scholar Jack Rakove. He shares his insights on representation, the electoral college, and much more.

⁠Click here⁠ to listen to our episode on the Articles of Confederation, our shaggy dog of a first draft of government!

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Transcript

why congress is the way first 16.mp3

Nick Capodice: I am here.

Hannah McCarthy: Oh, okay.

Nick Capodice: Yeah, I'm also here. I've been here the whole time. It's pretty bouncy. Do you think it's kind of bouncy?

Hannah McCarthy: It's pretty bouncy. Bouncy house.

Nick Capodice: We're in a large room, everyone. So just, you know. I hope it's okay. Just for today, though. Hannah. I have used variations on these clips so often now that I wonder if they're even necessary.

Hannah McCarthy: What clips?

Nick Capodice: These ones. I'm gonna put some heart pounding cable [00:00:30] news music under this.

Speaker 4: Only about 1 in 10 Americans think Congress is doing a good job.

Speaker 5: You know, I just want to say to Congress, stand up and applaud. You're usually hated, but usually not this hated. You're reaching or at least tying record highs in terms of disapproval. Hello. 86%. 86% of Americans disapprove of Congress. That is tied with November of 2013.

Hannah McCarthy: The tried and true news clips of people disapproving [00:01:00] of the way the US government is doing its job.

Hannah McCarthy: Yeah.

Hannah McCarthy: What is the congressional approval rating right now, by the way?

Nick Capodice: As of this morning, June 23rd, 2026, it is at 24%. That is 24% of polled Americans approve of the job Congress is doing.

Hannah McCarthy: And now, is that especially low?

Nick Capodice: It is especially low. It's been lower. But the record low is in 2011. And the record high was in the wake of September 11th, 2001. But it's low. [00:01:30] And it got me thinking. Hannah got me thinking of that historical fantasy. If under a pale moon, the cemeteries rattled and the specters of those that wrote the manual, the ones who designed our system of government. If they rose from the earth and looked about, what would they say?

Hannah McCarthy: Well, we can't do that.

Nick Capodice: We can't do that.

Hannah McCarthy: We spend an awful lot [00:02:00] of time in this country, maybe in this world, wondering what the dead would say, you know, if they rose from the grave, which, if history is any indication, does not seem to be on the docket.

Nick Capodice: All right. So barring that, today I got the next best thing. You're listening to Civics 101, the podcast refresher course on the basics of how our democracy works. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And in our series Celebrating and examining our 250th anniversary as a nation, we often ask ourselves, why are we like this? And [00:02:30] today it's all about article one. Why is our Congress the way it is? We're talking representation and apportionment, legislative powers, successes and failures, all of that stuff. And we're doing it through the lens of the people who created the Constitution. One person in particular, James Madison. So stick around.

Hannah McCarthy: All right, Nick, your rather gruesome cemetery scene. And I say that because [00:03:00] I never got over the thriller music video as a child. It still haunts my dreams. Uh, being a bit of a nonstarter. How should we talk about what the framers thought?

Nick Capodice: Well, I reached out to this guy.

Jack Rakove: You know, for myself as Madison's alter ego. You know, in terms of my current work.

Nick Capodice: This is Jack Rakove.

Jack Rakove: Hi, everyone. I'm Jack Rakove. I am the William Robertson Coe Professor of history and American Studies and professor of political science. [00:03:30] And by courtesy Law Emeritus, meaning I'm retired at Stanford University, the author of eight books and the editor of many others.

Hannah McCarthy: All right. He's done this before, hasn't he?

Nick Capodice: Yeah, he sure has. Jack's one of the OG Mad Men. Can I refer to James Madison scholars as Mad Men? Or is that, like, been done to death mad men? Yeah, because Madison men.

Hannah McCarthy: Are not because they're mad men.

Nick Capodice: No, no, they're called.

Hannah McCarthy: Watched the TV show.

Nick Capodice: Yeah, but they're called Mad Men because the ad agencies were [00:04:00] on Madison Avenue.

Hannah McCarthy: No, I know I.

Speaker 7: Yeah, I know that, Nick.

Nick Capodice: But in addition to his books, mostly on Madison, Jack has contributed to myriad briefs for the United States Supreme Court, notably in Trump v US, the presidential immunity case, and the recent Arizona redistricting case. So, Hannah, let us start with what the Constitution was born out of. Give us a quick primer on the Articles of Confederation.

Hannah McCarthy: All right. Absolutely. We have a link to an entire episode [00:04:30] on this in the show notes. But in brief, the articles were our first constitution. They outlined our government initially. So right after the Continental Congress appointed a committee of five to write the Declaration of Independence, they also appointed a committee of 13 to draft the articles and. And they were a disaster. Uh, every state for itself. Barely [00:05:00] any centralized government whatsoever. No executive power to speak of. And they were nigh impossible to amend. So when we were creating a new constitution, our goal was in part to fix our mistakes.

Jack Rakove: For starters, one has to assume, particularly if you look at things from James Madison's vantage point, what you wanted to do in the wake of the effective collapse, the framers would have said [00:05:30] the imbecility of the Continental Congress under the Articles of Confederation was you wanted to create a national government that would be fully empowered to enact, execute and adjudicate its own laws. And once you get to the matter of legislation, the conventional wisdom was you need to have a bicameral legislature.

Hannah McCarthy: All right. Why was a bicameral legislature. Conventional wisdom.

Nick Capodice: Well, first off, the vast majority of colonies now states they [00:06:00] already operated under a bicameral legislature, which, by the way, is two chambers of Congress. Not to mention it's what we did in the old place, the Parliament of Great Britain, where we had the House of Commons and the House of Lords.

Jack Rakove: That raises interesting questions about if you have two houses, what is each one going to represent? And Madison in particular, and no longer his allies, people like James Wilson and Robert Morris, Gouverneur Morris in Pennsylvania, Rufus [00:06:30] King from Massachusetts, and so on. They were committed to the idea that you needed to have some form of proportional representation in both houses of Congress that you had to get. Absolutely. Get rid of the one state, one vote rule, which had been the model of decision making in the kind of Congress going back to 1774. So that absolutely had to be abandoned. But that leaves open the question of what rule of apportioning representatives across the States or among the States [00:07:00] in two houses. Would you apply? Would it be strictly population? Would it be population plus property? And Madison felt that legislative power by itself was very difficult to define and defined in the sense of limiting. There was a phrase he uses later in life as the plastic faculty of legislation.

Hannah McCarthy: The Plastic Faculty of legislation.

Nick Capodice: Yeah. Plastic isn't bendy, changeable. Madison talks about this in [00:07:30] Federalist 48 and in other places later in his life. The thing is, when you constitute a government, especially a national government, you want to be really specific about who has what powers.

Jack Rakove: But theoretically, Madison felt it was actually quite difficult to do because legislative power is, by its nature so supple and so complex that legislatures could always, in a sense, manipulate or mask their or their more, you know, their, their ambitions [00:08:00] through devising complicated techniques of developing laws.

Hannah McCarthy: So basically, the legislative branch is the most difficult to pin down because that branch makes the laws and those laws can be complex and technical, and the legislature can nudge the rules one way or another, potentially to grant themselves more power.

Nick Capodice: Exactly. So now we're going to talk about some plans. Hanna, to famous plans come out of the arguments to determine how [00:08:30] our Congress is gonna be constructed. The Virginia plan and the new Jersey plan. So Madison drafted the Virginia Plan, which has in it a bicameral legislature. And it is determinate on population. And representatives from smaller states are like, oh, man, no way. That means we're not gonna have any people in there. And so small states back the new Jersey plan, which says we should have one chamber of Congress, and every state gets the same amount of representatives, regardless [00:09:00] of population.

Jack Rakove: The decision of July 16th to give each state an equal vote in the Senate, we call it either the Great Compromise or. For reasons I don't really agree with the Connecticut Compromise because I don't think Connecticut played any special role here, although the Connecticut delegates were quite active. But they weren't the decision makers. But you know that vote. That vote was not a compromise in its own name. That's to say the vote on July 16th, which is when you get the equal state vote in the Senate, was five states to [00:09:30] four states with one state, Massachusetts, divided. So they said, look, you know, we you know, we support most of the legislative outcomes you want, but we're not going to we're not going to agree to this without preserving the equal vote in at least one house. So it was always about the second house. It was always about what would happen in the Senate. And massive position was, you know, we're just going to use a placeholder now.

Hannah McCarthy: Do the small states come out ahead [00:10:00] here? The Senate is an extremely powerful body, and each state gets two senators, no matter how many people live there.

Nick Capodice: Yeah, they kind of did. And Madison thought so too. And to that point, Jack asked me a very interesting question.

Jack Rakove: You asked my students and you could ask, you know, whoever your listeners are, and this is a trick question. Uh, Nick so, so pay attention. Do we ever vote on the basis of the size of the state in which [00:10:30] we live?

Nick Capodice: So do we. Hannah.

Hannah McCarthy: I don't know if I know what that means. Can you repeat that?

Nick Capodice: Do we ever vote for a candidate because of the size of our state?

Hannah McCarthy: I comprehend the words that are coming out of your mouth, but I do not understand their meaning.

Nick Capodice: This exact same thing happened to me when Jack asked me and I was like, uh, no, I don't think so. But think of it this way. The main reason people are gonna vote for one candidate or another is based on where [00:11:00] they stand on certain topics. Big ones. Right? Speech, immigration, war, taxes, healthcare, etc.. What on earth does the size of the state have to do with it?

Jack Rakove: The way we vote is based on the issues we care about. And you know, and they have nothing at all. You know, if it matters a lot, if you live in a city, if you live in the countryside, if you're, you know, if you're for if you're farming corn or soybeans [00:11:30] on the west bank of the Mississippi, in Iowa or on the east Bank in my native state of Illinois, farm subsidies or whatever will define what your interests are. And Madison's argument is, you know, against this, he felt he could. Wear the smallest small size down by force of argument. And because basically he's right. If you want to say that the states have, should have, and should have an equal vote on the basis of the interests they represent or they possess, then you have to be able [00:12:00] to identify what those interests are. But the large states don't have common interests. So you compare Massachusetts with Pennsylvania and Virginia. They have very different kinds of economies. They have very different populations. If you guys could ever tell me what will bring the small states together on the one hand or the large space on the other hand, you might have a good argument. The small states can never do it.

Hannah McCarthy: All right. This is a famous small state versus big state battle. The small states are like, if we don't have equal representation [00:12:30] with the big states, we'll lose out on the small state issues. But there aren't any small state issues precisely.

Nick Capodice: But small states hold out. And Madison didn't want to toss the whole thing in the midden and start over with the new convention and a new constitution. So this is just something the guy had to swallow.

Jack Rakove: When Madison came to the state vote. He said, you can't defend it on its merits. We just have to accept it was a necessary compromise at the convention. And so we're stuck with it. We [00:13:00] got to defend it on principle. It's part of the package. The overall good will still be served by ratifying the new constitution, not by rejecting or modifying it. So there we are.

Hannah McCarthy: There we are. But did Jack have any thoughts in terms of how we're doing 250 years later? Does anything stick out as being opposed to Madison's intentions?

Nick Capodice: Absolutely. Hanna and I have a few proposed remedies to the congressional malaise. But [00:13:30] first, we got to take a quick break.

Hannah McCarthy: We're back. You're listening to civics 101. And, Nick, you were just about to tell me. About what things today, Congress wise, are at odds with how James Madison envisioned our great American experiment.

Nick Capodice: I certainly was. And here is the first thing that nobody in the 1780s would have expected the notion of career [00:14:00] politicians. Here again, is Madison scholar Jack Rakove.

Jack Rakove: Okay, now here's Madison's position, though. If you're a political scientist today, you would say the the independent variable that drives political behavior today is the desire to be reelected. Right. That, you know, we assume that politics has been professionalized, that once you're elected to Congress, getting reelected is your dominant personal ambition. [00:14:30] You know, you know, they just they just want to stay on forever. Maximum era when holding office was thought really to be vocational in nature. It wasn't your profession, wasn't your career. You could be a planter. You could be a merchant, you could be a lawyer, and so on.

Hannah McCarthy: All right, so you're a professional first and a politician second.

Speaker 7: Yeah.

Nick Capodice: And this is good because you'd come to Congress with a unique expertise. You were a wheat farmer, you sold felt hats, you made boats, [00:15:00] whatever.

Hannah McCarthy: And often you were a lawyer.

Nick Capodice: Yes. That was and is true. Hanna, about 40% of members of Congress right now have a law degree. But do you know the number one prior occupation for somebody who is sitting in the House of Representatives?

Hannah McCarthy: Like right now.

Nick Capodice: Right now.

Hannah McCarthy: I'm gonna guess, given that 40% of them have law degrees. Lawyer.

Nick Capodice: Huh? Something beats it out. Something they did since they were a lawyer and before they came to the House of Representatives. And [00:15:30] that is, they worked in politics already. And I gotta add, this is really new.

Jack Rakove: The mean term of service in the House of Representatives from 1789 down to about 1900 plus or minus, but 1900s. The turning point was three years, meaning if you do the arithmetic, the vast majority of members served 1 or 2 terms, and then very few senators and a few did. But very few senators served two terms [00:16:00] until the late 19th century.

Nick Capodice: And look, it's understandable that our first few congresses in the 1800s were absent career politicians because we were a fresh new country. But in 1979, a very lucky year for me. Only 29 members of the House were former politicians. But in 2019, 171.

Hannah McCarthy: Huh? Is there a repercussion for that?

Nick Capodice: Well, I am not going to put words in Jack's [00:16:30] mouth, but to me, it seems like the career politician is something that could lead to the much bigger problem. So, Hannah, what skills would you say? Somebody who has worked in politics for a long time has uh.

Hannah McCarthy: I mean, I would say foremost, they are politic. They know how to negotiate. They understand the system ostensibly, um, and how to maneuver [00:17:00] it to benefit their constituents ostensibly or themselves, you know, um, and frankly, I think a lot of them are pretty good at getting reelected.

Nick Capodice: Yeah. And that last one, Hannah, that leads to Jack's primary concern.

Jack Rakove: So, Nick, I'm doing a lot of work on constitutional failure. So from a madisonian perspective. So I've been giving a lot of thought to this. But Madison's standard assumption, this [00:17:30] is Federalist 51. You may or may not know this text ambition must be made to counteract ambition. The interest of man must be connected to the constitutional rights of the place. And so the very famous passage from The Federalist, almost as famous as the stuff from Federalist ten. Party loyalty is, is, is, is much stronger than, um, you know, kind of strict loyalty to one's institution.

Hannah McCarthy: Okay. So [00:18:00] this is it. And we have talked about this on the show before. Partizanship. And that includes loyalty to the party to party leadership, resulting in Congress not necessarily acting in the best interests of their constituents, of the people.

Nick Capodice: Yes. An utter devotion to your party has swung back and forth between the two parties over the centuries, but there is a [00:18:30] marked rise in Partizanship full stop party over everything else. In the 1990s. And it hasn't gone down.

Jack Rakove: It's [00:19:00] more profound for the Republicans is for the Democrats. Because if you're a Republican politician, your principal fear in life is the fear of being primaried. And particularly if you cross Trump. It doesn't work in every case, but it has worked in a number of cases. In another age before, before we lived in an era of [00:19:30] hyper partizanship, you know, you'd find legislators who worked together would, you know, would would learn how to collaborate. If you want great examples of this. Just think about the passage of the of the Voting Rights Act and the Civil Rights Act of 64 and the Voting Rights Act of 1965. And those were collaborative efforts.

Hannah McCarthy: Well, one way to eradicate Partizanship is to get rid of parties entirely. We have had so many listener emails over the years asking, why don't we or can't we [00:20:00] get rid of the two party system? And yes, there are a bunch of democracies in the world that have multi-party systems. But the way our elections are set up, there seems to be no way to stop being a two party system.

Nick Capodice: That's absolutely right. And I asked Jack, do you think there are any remedies to all of this? And he said, right now we are having a reckoning with gerrymandering, in particular states drawing legislative [00:20:30] districts to ensure one party wins over the other. And that creates voter apathy, and that creates a lack of faith in Congress. And as a funny side note, James Madison was perhaps the very first victim of a gerrymander, but that was in 1789, before they even had a name for it. Anyways, here is one of Jack's potential solutions.

Jack Rakove: You know, one way to solve the gerrymandering probably. Problem is let's get rid of districts. And you know, after reading more about [00:21:00] this, I mean, there's a big part of this. If you if you have access to Max Farron's records of the federal Convention of 1787, it's available online. Go to volume two, page two, 4241 and read Madison's long speech. It's a seminal speech because it illustrates two things. One is there's no obvious idea of exactly how should you reelect the House of Representatives? You know, kind of figure, you know, remember in decision about how you do that is left [00:21:30] under the elections clause, article one, section four, not section eight, but section four is left to the states state legislatures to resolve. Madison did not trust the state legislatures to do anything right. Always, he was deeply distrustful of the state legislatures. But then also, you might decide that there is one optimal way to elect representatives. So if you want to solve the gerrymandering problem, if you say, okay, constituent, you know, congressmen represent their constituents, it's valuable. [00:22:00] But, you know, a whole delegation can set up mechanisms to do that. You know, you can I mean, they can create staffs, which with responsive individuals and, you know, from coming from different communities, you could kind of allocate telephone calls on that basis or whatever. And you could, you could get rid of the gerrymandering problem because you're not going to have districts.

Nick Capodice: And the very last potential remedy that Jack talked to me about wasn't about Congress specifically, but I think it's important to include it here, something that has been [00:22:30] argued about as long as I've been a sentient being, our unique system of electing a president.

Hannah McCarthy: The Electoral College.

Nick Capodice: The Electoral College.

Jack Rakove: Well, I think I think the most relevant point is the presidency. And, Nick, it's important to know that all the critical decisions about the presidency really came, were taken to the very end in Madison's language. The [00:23:00] whole discussion of subject matter, it was a precis, was the result of tedious, if tedious and reiterated discussions or something like that. It's. In his letter to Jefferson of October 24th, 1787. Tedious. I think it's tedious if reiterated discussions. So I think that's you know, so the basic idea about the presidency is it's not that the Electoral College was the most attractive alternative is that it was the least unattractive [00:23:30] alternative. And, um, you know, the real problem with it was, I think correctly, is they found it very hard to imagine how a, um, you could have a national popular election of a president that would be decisive in the sense of getting to a majority. And so long as Washington wants to be president, it doesn't matter what the rules are, you'll get the same result. [00:24:00] But in a post-washington world, the assumption is how do you how are you? How are you going to define genuinely national characters? And how would you avoid a lot of favorites on voting? So, but yeah, they decided on this at the end. But you know, if you get to 1796, if you had a popular election, it would be quite effective. You have two, you have two big name candidates, John Adams and Thomas Jefferson, both both by that time quite well known, you know, quite Wait a minute. And, you know, [00:24:30] you could have decided between them. So I think that's the I think that's the single. That's the one example I would really emphasize.

Hannah McCarthy: It is interesting to me that the things that still to this day cause a lot of consternation, equal representation in the Senate and the Electoral College [00:25:00] and the Electoral College and the Electoral College. One was a tough pill for Madison to swallow, and the other was a. Let's just get this done, we'll fix it in post kind of thing.

Nick Capodice: Yeah. And it points to the fact that our system is not, nor was it ever perfect. But more perfect is what we reach for.

Hannah McCarthy: Supposed to be.

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When a flag is against the rules... or the law

In recent years, flag restriction rules, policies and laws have been cropping up across the country. Whether the government is telling you what you can fly or what you cannot, there's always something behind the flag.

We dig into how, why and when it's legal for the government to decide what you can or cannot fly and hear from Halifax, Massachusetts, about what a flag controversy revealed about that town.

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Transcript

Hannah McCarthy: [00:00:00] Nick, you know how a couple of episodes ago, we learned about America's singular obsession with the Stars and Stripes? Well, today we're going to hear [00:00:10] another story about how in this country flags can spark some big feelings. But this time, it's not about the American [00:00:20] flag, although that does play a role. It's a story about what happens when you use a flag to advocate for peace in the classroom.

Nick Capodice: [00:00:30] Huh. [00:00:30] That sounds kind of Tinkery. Hannah Tinker v Des Moines, the landmark 1969 Supreme Court case, the money quote being it can hardly [00:00:40] be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, end quote. For anyone who doesn't know, Mary Beth and [00:00:50] John Tinker wore black armbands to school to protest the Vietnam War. The armbands were banned. That's a little hard to say by the school district. [00:01:00] The whole thing went to court and all the way up to the highest court, and the tinkers won, so to speak. The ban on bans was indeed a violation of the First Amendment.

Hannah McCarthy: [00:01:10] It [00:01:10] is Tinkery. But this is very much a story of today for reasons I hope will become clear. We're going to talk about something that happened in [00:01:20] Halifax, Massachusetts in 2021.

Dana Cataldo: [00:01:23] So my name is Dana Cataldo. I'm the new digital producer here at Civics 101. I do a bit of video producing, [00:01:30] um, and a bit of social media producing.

Nick Capodice: [00:01:32] By the way, if you've seen more of us on Instagram or TikTok lately, that is all thanks to Dana's excellent work. If you haven't, follow [00:01:40] us at Civics 101 pod to see me cook and to see Hannah reenact iconic scenes from movies. Okay, I digress back to Dana.

Dana Cataldo: [00:01:48] When I was working at HuffPost in 2021, [00:01:50] I saw this article get dropped in one of the Slack channels where you usually drop in, uh, different like, uh, headlines that we might see come across from different regional [00:02:00] news networks around the country. And I was so surprised to see the very familiar looking sign posted in front of Halifax Elementary School that I [00:02:10] attended when I was a kid. The headline that accompanied this was that the Halifax Elementary School had banned peace flags from the classroom. And so it [00:02:20] was something that, just like it bore a hole in my head and I had to like I couldn't stop thinking about it.

Nick Capodice: [00:02:29] Hang on the peace [00:02:30] flag. What is that exactly?

Dana Cataldo: [00:02:31] It's like ten vertical stripes. There's like skin tones and like rainbow stripes that are included in there. Um, it [00:02:40] has the word peace in black lettering across it. And from what I understand, the whole idea behind it was it was this all inclusive, like, you know, racially inclusive, [00:02:50] um, sexual orientation and gender inclusive flag that someone made. I'm usually not like, very like ear to the ground when it [00:03:00] comes to flags. Anyways, I'm like not usually a flag waver. So I just kind of saw it as like one of those peace flags that has like, you know, stripes and like, like inclusion or peace or something kind of to those [00:03:10] effects. To me, it was like this generic thing. And I was just surprised that there was this outrage over something that sounds like this.

Archival: [00:03:15] The peace flag has every single color on it. So that to me, that [00:03:20] should mean that it represents every single thing.

Archival: [00:03:23] Ten year old Charlie Eldridge is in the fifth grade at Halifax Elementary School. Recently, his teachers and classmates hung these [00:03:30] peace flags up on the back walls of their classrooms. Charlie says they hung them as a reminder.

Archival: [00:03:36] That up there was showing that everyone should have peace and [00:03:40] not be rude, mean and just accept people for who they are.

Archival: [00:03:44] But the flags were recently removed after the principal received requests from parents who wanted to display other flags [00:03:50] in the classroom as well. In fact, the school superintendent sent home a letter addressing the issue, saying some parents felt their kids were being politically marginalized, saying under equal [00:04:00] access laws and regulations, we had to provide access to numerous points of view and cannot discriminate based on a particular viewpoint.

Nick Capodice: [00:04:08] All right. Pause here. The [00:04:10] school said it cannot discriminate based on a certain viewpoint. I don't know exactly what that means.

Hannah McCarthy: [00:04:18] Viewpoint discrimination [00:04:20] is when the government regulates speech based on its specific, quote, motivating ideology, unquote, or the speaker's quote, opinion or perspective [00:04:30] unquote. And the Supreme Court has said that this kind of regulation is, quote, an egregious form of content discrimination. It is a [00:04:40] classic First Amendment violation.

Nick Capodice: [00:04:42] Okay. And in a school, for example, where there is some speech regulation allowed for certain reasons. What [00:04:50] about that?

Hannah McCarthy: [00:04:51] Even then, the government is not allowed to permit some viewpoints and not others, with some rare exceptions that I will talk about later. But that does [00:05:00] bring me to a major part of the story we heard from a kid, Charlie, in that news clip. He was the one who saw the peace flags as being representative [00:05:10] of, well, peace. So the other day, Dana and I called up Charlie and his mom, Lana, and asked them to rehash the events. Here's [00:05:20] Lana.

Lana: [00:05:21] You know, I'll be honest. When Dana first reached out, I was like, oh my God, do we really want to rehash all of this? Like it was. But basically for Dana, I would [00:05:30] do just about anything. At one point, they had changed the design of the flag from, I believe it was. The word [00:05:40] peace was written in white lettering to change it to black lettering to include support for the Black Lives Matter movement. And once sort of the conservative [00:05:50] folks in town got their hooks into that, like it was just, you know, then it was it was deemed political. And, you know, and the argument was, is that politics [00:06:00] didn't belong in a child's classroom.

Hannah McCarthy: [00:06:02] So in response to the piece lag and to this nod to the Black Lives Matter movement, there were requests to hang Blue Lives Matter flags [00:06:10] at the school, and the principal had the piece flags taken down and no other flags went up. And here again is that kid from the news clip a now a teenager. [00:06:20] Charlie.

Charlie: [00:06:21] It was an overnight thing. I remember asking why they were taken down, because I remember I had sat in the back of the room and the peace flag was right behind me. And, [00:06:30] um, it was just, it was weird having it be removed in one day. So I had asked my I'm pretty sure it was my science teacher who had it hung up. I asked, why'd you have it removed? And she said that the [00:06:40] principal had told them because of different parental complaints.

Lana: [00:06:43] It literally became you were either pro peace flag or pro blue Lives matter. Blue Lives Matter is one [00:06:50] thing. This this rainbow peace flag of inclusion. It's completely separate issues, right? But people were completely divided. And like I said, you were [00:07:00] one side or the other. And it, it did. It trickled down into school where like the kids were like the parents were arguing and then the kids were arguing. And it [00:07:10] literally to the. I would stand to argue that even to this day, we're still pretty much cut down the middle of wo, you know, five years ago, which is crazy to say five years ago you were pro [00:07:20] peace flag. So we can't talk now or we can't be friends because it's just it's so it was so polarizing. It was it was incredible.

Nick Capodice: [00:07:28] Okay, so you've got two viewpoints, [00:07:30] viewpoints that the community saw as oppositional to each other and a school taking down flags of one viewpoint and disallowing flags [00:07:40] of another viewpoint.

Hannah McCarthy: [00:07:41] And believe it or not, that did not fix what was going on behind the flags. There is always something behind a flag. There is a meaning, a message, [00:07:50] a movement. And especially recently in the U.S. at the public school, city and state level, there have been efforts to restrict which meanings, messages [00:08:00] and movements get a flag and which don't.

Nick Capodice: [00:08:03] Okay. So we're not talking about flag desecration laws. Right. Because we are actually allowed to desecrate the U.S. [00:08:10] flag. The Supreme Court said so in Texas v Johnson.

Hannah McCarthy: [00:08:13] Right. We are talking about what kinds of flags you are or are not allowed to fly school [00:08:20] flag restrictions exist well beyond Halifax, though. School policy is its own unique legal creature in so many ways because it is about a place [00:08:30] of learning. There are also, however, city, county and even state flag restrictions.

Nick Capodice: [00:08:38] Wait, is this a new thing? How [00:08:40] have I not heard of this before?

Hannah McCarthy: [00:08:42] Relatively. Yeah. This kind of restriction has happened over the past few years. So for example, Idaho. This [00:08:50] is an interesting case. First, the state legislature voted on flags in public schools. They prohibited anything that represented, quote, a political viewpoint, including but not [00:09:00] limited to flags or banners regarding a political party, race, sexual orientation, gender or political ideology, unquote. [00:09:10] And then they passed a law explicitly dictating what flags government entities are allowed to fly.

Nick Capodice: [00:09:18] Now, Hannah, I am wondering, is [00:09:20] that first law a viewpoint issue? I mean, it literally has the word viewpoint in it.

Hannah McCarthy: [00:09:26] Well, that is the question, isn't it? And the American Civil [00:09:30] Liberties Union, the ACLU has weighed in on flag restriction legislation pertaining to cities, states and schools in the U.S.. They say that policies banning openly [00:09:40] and explicitly the rainbow flag, and by that they mean the pride flag do constitute viewpoint discrimination.

Nick Capodice: [00:09:49] But this Idaho law [00:09:50] isn't explicitly banning the pride flag, even though it is effectively banning the pride flag both in schools and on government buildings.

Hannah McCarthy: [00:09:59] Nor [00:10:00] is the prohibition limited to the list it provides of what it considers political viewpoints. That said, Nick, the public school law does define [00:10:10] race, sexual orientation, and gender as political viewpoints, sandwiches them right between political party and political ideology. [00:10:20]

Nick Capodice: [00:10:20] Hannah, wouldn't you say that sandwiching race, sexual orientation and gender between politics is in the grand tradition of American sandwich making?

Hannah McCarthy: [00:10:30] Oh, [00:10:30] I certainly would. But are they political viewpoints? And if the law isn't limited to that list, what else could [00:10:40] be included? Is a flag that says, I love trees representing a political viewpoint. What about a flag that says, I love Jesus? [00:10:50]

Nick Capodice: [00:10:50] I mean, you start down that road, Hannah, and literally any opinion whatsoever could be considered a political viewpoint.

Hannah McCarthy: [00:10:57] And for that matter, if school districts, cities, counties [00:11:00] and states across the country already have policies dictating what kinds of political behavior their employees can and cannot engage in, [00:11:10] why would you need a law defining what political is and where it is not allowed?

Nick Capodice: [00:11:17] Do school districts, cities, counties, [00:11:20] and states across the country already have those policies?

Hannah McCarthy: [00:11:22] Oh, of course, you've got to find a way to balance a person's First Amendment rights with the need for government employees to remain neutral [00:11:30] and not coerced by politics. The policies vary, but their standard fare, in part because the Hatch Act, which was passed in 1939, limits [00:11:40] political activity for federal employees, and a lot of state employee jobs are funded by the federal government.

Nick Capodice: [00:11:48] So what counts as political activity in [00:11:50] these policies?

Hannah McCarthy: [00:11:51] These are laws and policies about running for office, campaigning for a candidate, raising money for a party cause, advocating for a [00:12:00] ballot or policy measure. A lot of the time, it has to do with what you're not allowed to do while on the clock.

Nick Capodice: [00:12:07] Okay, so a teacher hanging up their [00:12:10] favorite candidate's campaign flag in the classroom. That would probably be against policy.

Hannah McCarthy: [00:12:16] Right? In a state where a teacher is, for example, not allowed to campaign [00:12:20] for an office during instructional time or around their students. Idaho is one of those states, by the way.

Nick Capodice: [00:12:32] All [00:12:30] right, so you're asking why you'd need a clarifying law when politics and public employees are already pretty well covered?

Hannah McCarthy: [00:12:39] Well, [00:12:40] I guess you need it if you want to clarify what your state considers political.

Nick Capodice: [00:12:46] All right. Okay. But, Hannah, what is political [00:12:50] or what are politics? Because now you got me thinking, and I am not totally [00:13:00] sure how to answer that.

Hannah McCarthy: [00:13:01] Nick. I really did try to answer this. Like, I can tell you that the dictionary says it's quote of or relating to [00:13:10] government. There are legal and philosophical debates about what politics actually is or are, and for that matter, what government is, what public means, [00:13:20] what social means, what conflict means. I think we should go to law school, and also I do not have a good answer.

Nick Capodice: [00:13:26] Okay. Well, I also think we should go to law school, but I think we cannot afford [00:13:30] it and we do not have time. But that aside, I'm still trying to understand how and when the government is allowed to say not this viewpoint. [00:13:40]

Hannah McCarthy: [00:13:40] I do have an answer to that, and I'll give it to you after the break.

Nick Capodice: [00:14:01] We're [00:14:00] back. We are talking restrictions, viewpoints, politics and flags. And just before the break, Hannah, you said you actually had an answer about how [00:14:10] and when the government is allowed to say no to an opinion.

Hannah McCarthy: [00:14:13] Yeah. And I actually have a flag example and a Supreme Court case rolled into one to help us understand. [00:14:20]

Nick Capodice: [00:14:20] All right. Hit me.

Hannah McCarthy: [00:14:21] All right. Shurtleff v City of Boston. Boston has flagpoles outside of City Hall. Private citizens and groups could apply to fly a flag [00:14:30] on one of those flagpoles. A Christian organization applied to fly a Christian flag. The city said no. The Supreme Court said, not so fast, Boston. [00:14:40] You let other people in groups fly their flags? You do not personally select those flags or design those flags. This is a private [00:14:50] citizen matter. This is not government speech.

Nick Capodice: [00:14:53] Government speech. Is that an actual legal thing?

Hannah McCarthy: [00:14:57] It is. The government doesn't have [00:15:00] to pass a First Amendment test if it is speaking for itself. Now, the majority opinion also explained that deciding whether [00:15:10] something is government speech requires an holistic assessment, but that assessment includes questions like, is the public going to think this [00:15:20] is Boston speaking for itself or someone else speaking? And does Boston already have policies or internal guidance about what flags groups can fly? [00:15:30]

Nick Capodice: [00:15:30] So this complicates the matter, Hannah, because if these flag restriction laws we've been talking about are about government speech, then a First Amendment test [00:15:40] isn't required.

Hannah McCarthy: [00:15:41] Which, by the way, the ACLU also pointed out in its memo about flag restrictions. But, you know, if a city in Idaho has a history [00:15:50] of allowing the public to fly their own flags on government property, I think that could get tricky. That could be a shirt left question.

Nick Capodice: [00:15:58] All right. So let me ask this. [00:16:00] Getting back to this story in Halifax, getting back to the peace flag, did the state or the school district or the town have laws [00:16:10] or policies on the books dictating which kinds of flags could be flown?

Hannah McCarthy: [00:16:15] Well, okay, so Halifax now dictates that only the American flag [00:16:20] can be flown in municipal buildings, though that wasn't the case at the time. But schools are again, a different and unique thing. And when it comes to third party [00:16:30] flags in schools, that is up to the superintendent and the administration.

Nick Capodice: [00:16:35] All right, I guess that settles it. It's not a First Amendment question. [00:16:40]

Hannah McCarthy: [00:16:40] Well, you know, I personally do think it is a little Tinkery.

Nick Capodice: [00:16:47] So it is a Tinker story. [00:16:50]

Hannah McCarthy: [00:16:50] Well, let's go back to Lana and Charlie, the mother and son we heard from at the beginning of this episode. I asked Lana about district flag [00:17:00] policy, thinking that this peace flag issue might be up to the school district to decide.

Lana: [00:17:06] So Halifax is part of the Silver Lake School District. It's regional. [00:17:10] So it's Halifax, Plympton and Kingston. And for you know, so these flags were taken out of the classroom. Halifax has a very strict policy now that the [00:17:20] only flag that is allowed to be flown in any municipal building is the American flag. So there are no other flags allowed in any town building. However, I work at the high school now, [00:17:30] and there are peace flags all over the building, all over the building. So it's literally I and I can't speak to like the elementary school or the intermediate school in Kingston and Plympton. But like [00:17:40] so the kids are graduating, they go K through six in Halifax, and then they go to the middle school and there's peace flags everywhere there too. So it's almost like it was like a [00:17:50] it was a very mixed message.

Nick Capodice: [00:17:52] Hang on. The flag restriction only applied to Halifax Elementary.

Hannah McCarthy: [00:17:56] And the reason I say this is Tinkery is because [00:18:00] the major element of the Tinker v Des Moines opinion was, does this cause substantial disruption in the classroom? Those [00:18:10] black armbands kids talked about them during lunch. Kids were even hostile to each other outside of the classroom. But the court said they were not a disruption. [00:18:20] And in Halifax, the conversation inside and out of the classroom really picked up after [00:18:30] the flags came down.

Charlie: [00:18:32] You could definitely see that there was like a change in the classroom and in their like conversations because they were, [00:18:40] I don't know if they were explicitly told to keep politics away from the classroom. I assume they were, but, um, they tried to avoid the issue, but it [00:18:50] was inevitable to be brought up eventually. And, um, I feel like somebody at some point said something and it started a big chain reaction and everybody just started really talking about it. [00:19:00]

Nick Capodice: [00:19:00] So the effort to take what people saw as politics out of the classroom introduced a whole new world of conversation, maybe [00:19:10] even political conversation.

Charlie: [00:19:12] I think 100% it really it like it opened my eyes to like a new aspect of the world that I was previously unaware of, like [00:19:20] the aspect of politics and how people's ideas on different topics can differ. Um, I tend to not let that like determine my friendships and stuff because some of my friends are right [00:19:30] leaning, some of my friends are left leaning and I just get to see a broader spectrum of ideas. Um, and I feel like it like as soon as that happened, I started watching more of the news [00:19:40] and just like being more aware of like my situations, my surroundings and what's really going on in the world and just like paying attention and forming my own views on everything. [00:19:50]

Hannah McCarthy: [00:19:51] And Nick, here's the part of Tinker I think really applies here. Justice Abe Fortas wrote, quote, any word [00:20:00] spoken in class, in the lunchroom or on the campus that deviates from the views of another person may start an argument [00:20:10] or cause a disturbance. But our Constitution says we must take this risk. And our history says that it [00:20:20] is this sort of hazardous freedom, this kind of openness that is the basis of our national strength and of the independence and vigor [00:20:30] of Americans who grow up and live in this relatively permissive, often disputatious society.

Nick Capodice: [00:20:41] This [00:20:40] hazardous freedom something might cause an issue, but you have to give it the chance to.

Hannah McCarthy: [00:20:48] And I think actually in Halifax, [00:20:50] that peace flag, that symbol that some people saw as divisive, it got its chance. It revealed its own disputatious society. [00:21:00] And as far as strength goes, after it went away, a kind of union sprung up in its place.

Lana: [00:21:08] I think the peace [00:21:10] flag was, you know, a blessing and a curse because it did really reveal people's true colors. But within that, people who, [00:21:20] you know, sort of aligned with whatever the peace flag stood for and how, you know, just whether it's LGBTQ plus or Black [00:21:30] Lives Matter or anything We found sort of our community within the community.

Hannah McCarthy: [00:21:35] Or as our digital producer, Dana sees it.

Dana Cataldo: [00:21:38] And, you know, the more we talk [00:21:40] about this, the more I like come back to this like central theme of like, you know, the battles, like picking our battles because [00:21:50] almost like for the flag, for instance, you know, what would I rather have? Would I rather have a flag in a classroom? Or would I rather have these [00:22:00] events and this persistent organization that like makes people feel included in my hometown? I would love both, but I would really prefer the second one.

Nick Capodice: [00:22:14] So, [00:22:10] Hannah, it does make me wonder in these towns or cities or school districts [00:22:20] or states where laws and policies are stopping certain flags from being flown, is it a bridge too far to assume this has resulted in flags being taken [00:22:30] down?

Hannah McCarthy: [00:22:31] No, that is not a bridge too far. We may be Civics 101, but we don't have to be naive. Of course, flags have been taken down. And in the details [00:22:40] of bureaucracy, like in San Antonio, Texas, where states control the roadways. But cities control the sidewalks. People are walking on rainbows. In Saint Petersburg, in [00:22:50] Florida, where Governor Ron DeSantis ordered rainbow sidewalks painted over the city, installed rainbow bike racks. The city of Boise, Idaho, went so far as to [00:23:00] make the pride flag an official city flag to get around the restriction. That is, until the state legislature passed a law finding cities $2,000 [00:23:10] a day for defying their flag orders.

Nick Capodice: [00:23:12] Okay, but I do take your point. The government can legislate ideology and controversy, maybe even before [00:23:20] the controversy happens. But this country finds a way to stay relatively permissive.

Hannah McCarthy: [00:23:26] Okay, speaking of ideology and controversy. The [00:23:30] last thought I want to leave you with comes from Charlie, who seems to have discovered a secret option for living in a place where people [00:23:40] disagree.

Charlie: [00:23:41] I mean, I feel like I can attest to the fact that there's still definitely a divide. I can sense it within the school that like the different group of friends, [00:23:50] like there's definitely like the people that are definitely left leaning, but then there's also the people that associate themselves with the right and associate themselves with like right wing beliefs. But [00:24:00] I feel like the border is slowly being lowered between the two. And we don't necessarily have to reside within those ideologies. We can disagree [00:24:10] politically, but we can still get along and not be, like, harsh with one another day to day.

Hannah McCarthy: [00:24:40] This [00:24:40] episode was produced by me, Hannah McCarthy with Nick Capodice. Dana Cataldo is our digital producer. Thank you, Dana, for bringing us this story. And Rebecca Lavoie is our executive [00:24:50] producer. Music in this episode comes from Epidemic Sound. You can learn so much more about Tinker v Des Moines, about rights in schools, about the First Amendment, all at our website, civics101podcast.org [00:25:00] dot org. Civics 101 is a production of NHPR New Hampshire Public Radio.

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How to Make Things Better

Today we complete our trio of episodes in collaboration with iCivics, where we explore why people of myriad groups are having a tough time, civics-wise. In this episode, we tell you how to eradicate your cynicism and make a difference.

First, we share Jill Lepore's presentation on conventions; how we used to interact with our many constitutions. And then, we talk with Eitan Hersh. Eitan is the author of Politics Is for Power: How to Move Beyond Political Hobbyism, Take Action, and Make Real Change. He tells us what works (and what doesn't) when it comes to engaging in politics.

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Transcript

Archival: In 2012, 52% of American adults voted. That means that almost half of the people over the age of 18 did not cast a ballot during the last presidential election.

Archival: So why don't people vote? Good question. America prides itself as one of the world's great democracies. So how can we explain why more than 100 million Americans simply don't vote more than 40% of the eligible population? And why does America rank almost dead last when it comes to turnout rates in developed countries?

Archival: Honestly, I haven't voted in about eight years. And because I [00:00:30] have a lot of knowledge about politics, I. I just think that it's a waste of my time because whoever's going to get into office is not going to be influenced based on what my goals are or what my needs are or what the public needs are.

Archival: A new Gallup Bentley University poll gives new insight into how Americans view institutions, which have the power to influence and influence to act in society's best interests. The federal government gets the lowest mark. A third of those surveyed said they don't trust Washington at all.

Nick Capodice: You're listening [00:01:00] to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we complete our episodes on why various groups in America are having a tough time. And you know what? This one's for you. All of you civics wise. I mean, I don't know you and what you're going through in your life, but I'm talking about having faith in our democracy, faith in our government, and believing that we as Americans can actually do anything about it whatsoever. And I swear, Hannah, on my [00:01:30] sock of harmonicas in my board game collection, this episode is gonna be just full of good news. Pinky swear friends don't lie. Mccarthy. Stick around. So I want to go back to how I started this series in the first place. The first day, the opening ceremonies of Civic Learning Week in Philadelphia, Hannah and I are walking around talking to teachers and students and the heads of various organizations. And Jill [00:02:00] Lepore gets on the stage.

Danielle Allen: It's a pleasure to welcome her here today for her keynote remarks, Professor Lepore.

Hannah McCarthy: Now, for those of you who don't know Jill Lepore, you really, really should. She's an historian, a journalist, a professor of history at Harvard University. We interviewed her for an episode on how we vote a long time ago, and she recently won a Pulitzer for her book, We the People A History of the US Constitution.

Nick Capodice: So naturally, when Jill Lepore got on [00:02:30] the stage, I thought she was going to talk about something to do with James Madison or the Constitutional Convention. But instead she starts by sharing a statute that is on the law books in Vermont.

Jill Lepore: An act relating to designating the state pie and the state fruit is hereby enacted by the General Assembly of the State of Vermont. The state pie shall be apple pie. When serving apple pie in Vermont, a good faith effort shall be made to meet one or more of the following conditions a. With a glass of cold [00:03:00] milk, B with a slice of cheddar cheese weighing a minimum of a half an ounce. C with a large scoop of vanilla ice cream. Also the state fruit shall be apple. Now there are two kinds of people in this room. There are people who are thinking, doesn't the Vermont Legislature have anything better to do? And then there are people who are thinking, My God, this is what good government looks like.

Nick Capodice: One thing that's special about this legislation is that it was written by elementary school children. [00:03:30] A member of the Vermont House of Representatives, Ed Paquin, who was gonna give kids a tour of the state House. He said, you know what? If these kids are going to get on a bus and come all the way down here, they shouldn't just walk around and listen to what I have to say. They should actually create a law.

Jill Lepore: They learn about how laws get made, and then they prepare for that field trip. And I picture them arguing about what kind of a law they want to propose meeting with their legislator. Legislator Ed Paquin asking him questions, touring [00:04:00] the state House, sitting in it's funny. Fancy seats, getting dressed up for the field trip. It's got everything that civic education requires the study and doing and exercising of rights and duties, the study and exercising of community rules, of conversation, of determination and action. And it also has ice cream.

Nick Capodice: Vermont's not alone. A lot of states do this, and it's great. And it is not always this fun, cute [00:04:30] story of kiddos going and seeing some innocuous bill get passed. For example, in 2015, a group of students in New Hampshire proposed a bill to make the red tailed hawk the state raptor.

Archival: They wore this t shirt as they spoke to a subcommittee. Then in the gallery, they understood the bill could fail, and it did. But some of the debate still stings.

Nick Capodice: And not only did this bill fail to pass, but it was mocked and derided on the floor by [00:05:00] members of the House. One lawmaker was like, what's next? A state hot dog? And another one. I'm just gonna let his words speak for themselves.

Archival: But it grasps with its talons and then uses its razor sharp beak to rip its victim to shreds, tear it apart limb by limb. And I guess the shame about making this a state bird is it would serve as a much better mascot for Planned Parenthood.

Hannah McCarthy: Wow.

Nick Capodice: Yeah.

Hannah McCarthy: How old were these kids?

Nick Capodice: They were in fourth grade. [00:05:30] They were sitting up there in the gallery, just excitedly waiting to see their legislation make the red tailed hawk the state raptor.

Hannah McCarthy: I am really sorry to hear that. That is the reaction they had to hear. I don't think that kids should have to listen to things like that, but I do have to say it is an accurate representation of politics and the legislative process. Any bill, no matter how innocuous, runs the risk of being used as a straw man to further a political agenda.

Nick Capodice: Yeah it does. And [00:06:00] let me add, nowadays, in the world of omnibus legislation, it would not be surprising to me to find an amendment sneaked into an apple pie bill that creates a funding package for a concrete production plan. Can I play the Jon Stewart clip on this, Anna?

Hannah McCarthy: Oh, is this the one where he was trying to get legislation passed that would help pay for the medical bills of nine over 11 responders?

Nick Capodice: Yeah. That one.

Hannah McCarthy: All right. Go ahead.

John Stewart: And I have yet to hear a reasonable explanation for why it'll get stuck in some transportation bill or some appropriations bill and [00:06:30] get sent over to the Senate, where a certain someone from the Senate will use it as a political football to get themselves maybe another new import tax on petroleum, because that's what happened to us in 2015.

Nick Capodice: I tell you, that clip never gets old. That right there is maybe one little part of the reason why people can feel quite cynical about our government these days. But the purpose of me telling everyone about the Vermont ice cream bill and the New [00:07:00] Hampshire State Raptor bill, which eventually passed four years later, by the way, is that students were for one day actually part of our government and school, even not during field trips to state houses. School is the primary place where Americans learn what it means to be a citizen. Classrooms have rules. Some have their own constitutions that the students draw up at the start of each year with their teacher. Teachers teach students every day how [00:07:30] to be civil with one another, how to talk, how to disagree, how to listen, how to advocate for what they want and what they need.

Jill Lepore: It also used.

Jill Lepore: To be that there were many, many other civil society institutions that did this work exceptionally well, raising democratic citizens, inculcating the habits of representation, participation and deliberation. Those institutions included labor unions, Temperance societies. Ymcas. Chambers of Commerce. Chapters of the [00:08:00] Urban League. The farmer's Grange. All of those institutions are in decline. And frankly, I think it's important to note that K 12 public education is, by some measures, the only civil society institution that is really left standing.

Nick Capodice: So students learn and practice this in school. All right. But what about the rest of the time the rest of their lives? What is their role in the legislative process? What [00:08:30] say do they have in the federal and more importantly, state laws that actually govern them? They can protest. They can argue on social media. They can write their congressperson. But when it comes to creating a law to actually changing how things work in this country, the only thing they have really is once they turn 18, their vote every four years or two years. If they're politically [00:09:00] active, they can say who they want to represent them, and they hope if that person wins, that that person will generally do stuff that makes their lives better. And to get real civics 101 here, all laws that are written and passed must be applicable under your state constitution, and then those statutes must be in accordance with the Constitution, the supreme law of the land, and whether or not they are, is determined by nine unelected [00:09:30] officials who serve for life. You see what I'm getting at here, McCarthy?

Hannah McCarthy: I do we the people have a pretty limited set of tools when it comes to actual change.

Nick Capodice: So, Hannah, if I asked you, after we turn off our microphones to tell me ten laws that you personally feel would make this country better, you could do that, right?

Hannah McCarthy: I can think of a lot of things. I would like to figure out how to pass laws.

Nick Capodice: About what? About amendments to the Constitution.

Hannah McCarthy: Possibly. But of course, amendments are [00:10:00] far more difficult to pass than local laws. We have only amended the federal Constitution 27 times. The last time was in 1992, and it wasn't even a new amendment. It was originally proposed in 1789. Amendments required two thirds of both chambers of Congress and three quarters of all states.

Nick Capodice: Yeah. Very hard. Now, there is another way to amend the Constitution, which we've talked about, but it's not talked about a ton because the odds of it actually happening are pretty [00:10:30] slim. That method is for two thirds of all the state legislatures to call a convention to amend the Constitution. I am admittedly thinking about it sort of through a Frank Capra lens. 34 state legislatures all waving goodbye on a train platform, crowds cheering, or going to D.C. and we're gonna figure this out. Frank Capra aside, it shocked me to my core when Jill Lepore told the audience, yeah, this has never happened. But [00:11:00] states did have conventions to amend their constitutions.

Jill Lepore: U.s. states used to hold constitutional conventions all the time. Meetings in rooms like this have elected delegates who were elected to write or revise state constitutions, which were then sent back to voters for ratification. These conventions were widely reported in the newspaper, avidly followed by ordinary people. There was an effect, a near unceasing constitutional argument, going on all over the United States [00:11:30] all the time. Remember, laws govern people, but constitutions govern government. So holding these conventions was a way of asking really frequently, is this how we wish to live, or ought we to amend our fundamental law?

Nick Capodice: You could actually vote for someone because you thought they were going to come up with something cool, and if the people liked it, they would vote to ratify it.

Hannah McCarthy: How many state constitutional conventions have been held in total.

Nick Capodice: So far in the US? 233. [00:12:00] The most recent state to actually have one was Rhode Island, and it did so in 1986. But I think Jill's point is that when we did this all the time, we actually were involved and how our government worked, we were part of it.

Jill Lepore: Americans learned about constitutional democracy by writing and revising and ratifying or protesting state constitutions, and by following that process in the newspaper. A convention is the provided machinery of peaceful [00:12:30] revolution, said one US senator. The very act of assembling, of gathering gatherings like these. The convention itself became the symbol, the visible enactment of the sovereignty of the people. As the Supreme Court of Indiana put it in 1855, a constitutional convention of eminent citizens is the substitute for the armed mob of other countries.

Nick Capodice: The convention was the way that we interacted with the government and other non-governmental systems, [00:13:00] too.

Jill Lepore: Because these state constitutional conventions before the Civil War, they were for white men and for white men only. But all of the people excluded from these kinds of meetings held their own conventions in which they drafted, ratified, and amended their own constitutions and statements of purpose and principle, and organized petition campaigns and proposed amendments to federal and state constitutions. Black men held what were called colored conventions, where they elected delegates in what [00:13:30] can properly be considered extraconstitutional conventions. Between 1830 and 1861, black delegates met in 49 conventions in the state's two regional conventions and 11 national conventions.

Nick Capodice: There were conventions to determine women's rights. There were native nation conventions to amend their own constitutions.

Jill Lepore: The militant abolitionist John Brown held a convention that wrote A constitution when the Southern States seceded. They held conventions and wrote constitutions. Americans in these years invented the first nominating convention [00:14:00] in 1831, and everyone knew what it meant to be the writer of your own constitution.

Hannah McCarthy: Nick. It sounds magical and involved and, well, fun. But we don't do it anymore.

Nick Capodice: We don't. Which isn't to say we won't ever again, but we really don't do conventions these days. And maybe that's one of the reasons we feel politically powerless. So to that point, I [00:14:30] spoke with someone who wrote about what Americans can actually do when they feel that way, and I'm going to tell you about that right after the break. We're back. You're listening to civics 101, and today we are talking about why Americans, full stop. Are civics wise a little disengaged.

Hannah McCarthy: So, Nick, you said you had some tips in terms of what Americans [00:15:00] can do besides vote. And by the way, please vote if you are eligible to get the change they want. So let's hear it.

Eitan Hersh: Yeah. You know, like I've thought about this in different ways. I mean, one way to say it quickly is that a lot of people want to pay attention to important things and not themselves be important.

Nick Capodice: This is Eitan Hersh.

Eitan Hersh: My name is Eitan Hersh. I'm a professor of political science at Tufts University, and I'm the new director of our center for Expanding Viewpoints in Higher Education.

Hannah McCarthy: All right. So what is the [00:15:30] center for Expanding Viewpoints in Higher Education?

Nick Capodice: Their mission is to help students, quote, more broadly, embrace difficult topics and challenging conversations to break out of ideological bubbles, to drive research and teaching forward, end quote. So Etan told me his students at Tufts were by an overwhelming majority liberal.

Eitan Hersh: The culture on campus, and I think in the public was very constrained. It was hard to ask questions about, you know, the other side of issues, [00:16:00] even ones that like gerrymandering or voter ID laws where, um, the conversation felt like very, very hard to learn about what other people were seeing on these same issues as, as our students were inspired me to design a whole course on conservatism and public policy.

Nick Capodice: Etan is also the author of a book, politics is for Power How to Move Beyond Political Hobbyism Take Action and Make Real Change.

Hannah McCarthy: Oh, that's right. This is the book that you talked about in [00:16:30] another episode where Etan compared someone thinking they're politically engaged by following politics, obsessively reading the news, watching the news to a sports fan, considering themselves a quarterback by watching the Super Bowl.

Eitan Hersh: It is when you're paying attention to national politics, when you're paying attention to something like that's happening on the Supreme Court that's happening in Congress. Like that stuff is important, but you have no role. Like you have no role to play in [00:17:00] that. So you are not an important person. And if we reframe what political activity ought to be mostly about, it's about ways where an individual can actually be important.

Nick Capodice: And I'm going to reiterate the name of Etan's book here. Politics is for power. So think of, I don't know, five things that you did this month that could be tied to politics. Sharing an article, having an argument with a relative, reading [00:17:30] a Supreme Court opinion, listening to the news, whatever. And then ask yourself, how did this action change the power structure? How did it move power from a place or a party, or a person you don't feel has your best interest at heart to a different place that does.

Hannah McCarthy: What are the actions that do actually shift power?

Nick Capodice: Unsurprisingly, Hannah and I know yes, we say this all the time, but this time I'm saying it in thunder. It is through [00:18:00] state and local politics.

Eitan Hersh: It's kind of remarkable, actually, how easy it is to get power at the local level. If you just think about the fact that, you know, we live in a country where, you know, we have something like 15% voter turnout at the local level, uh, not that many people are civically engaged, if you want to be. It's like really not that hard. So the way that you make a difference in your own community, in the laws that are happening in your town, it could be an electioneering activity. It could be in a political campaign [00:18:30] getting different people elected. It could be in in lobbying or advocacy. But like you actually understand the connection between what you are doing and the outcome that you see, like the strategic outcome that you want, then you are like an important person all of a sudden. And, and then you don't have to feel that sense of, of dismay. I think, you know, it's really damaging for people to have such a national orientation towards politics, where they will always feel like they have no role to play.

Nick Capodice: So [00:19:00] if you want to lose that sense of dismay, if you're tired of feeling unimportant, you have to do some research to find out who where you live is doing work that you support and is doing work that has an effect.

Eitan Hersh: So, so the first thing is to think about like what organizations around you have a strategic mindset. Like they actually have a set of goals they're trying to do. In my book, I highlight all these examples of a Latino coalition in Massachusetts [00:19:30] that had a big effect on city politics and electioneering group in Pennsylvania that is, you know, moving people towards its political goals, but also like a 90 year old guy in an old age home that gets people supporting the candidates that are important to his his constituency. Some of the stuff could be solitary. It's usually not as fun when solitary.

Nick Capodice: So, Hannah, you were a reporter at NPR before you came to the podcast unit, right?

Hannah McCarthy: I did, I covered the New Hampshire Statehouse, [00:20:00] local politics, that sort of thing.

Nick Capodice: Did you ever go to a town meeting?

Hannah McCarthy: Yeah, I can remember at least one that I attended. It was people actively being a part of their political process, even if they were simply making decisions about, you know, getting a new fire truck or something. And then in terms of the state House committee hearings were my favorite to cover.

Nick Capodice: All right. Tell me about those. What were they?

Hannah McCarthy: So in New Hampshire, it is a tried and true tradition that bills proposed in the House or Senate get a committee hearing and a vote on the floor. And [00:20:30] anyone can look up when the hearing might be for a particular piece of legislation and just attend. You can then testify in front of the committee, explain to them that you support a bill or oppose it and why.

Nick Capodice: So this sort of thing, the committee hearing or the town meeting. These are the rooms where the power lives and moves. So Aten told me about one time he was at a zoning board meeting with some of his students in a [00:21:00] town in New York state.

Eitan Hersh: And it turned out that there was a woman who basically attends the weekly zoning board meeting of this town and has been doing it for years, and she's done it. You know, I don't know what night it is like Wednesday nights for two hours. She instead of watching Netflix, she goes to the zoning board meeting. And, um, she's developed real expertise. She has a perspective, she has goals around, you know, what should be built and what shouldn't be built. She's [00:21:30] kind of a thorn in the side of this zoning board. You know, I only saw this interaction for a couple hours. But, you know, I don't think she has a constituency, but she has actually a substantial amount of power in her town because she knows the procedures of how this is supposed to work. She knows what she can raise a stink about, and it was sort of remarkable to see someone who actually doesn't have a church group, a ag group, a campaign, just one person. But, you know, if you just sort of are persistent and [00:22:00] you're like, I'm gonna do this every week. And by the way, it's kind of interesting. Like, I will both be smarter for it. Uh, when I see my friends later in the week, I'll be able to tell them some like fun war stories.

Hannah McCarthy: I think we've all met some version of this person, and I appreciate the fact that this person who, you know, might be the thorn in the side of the committee hearing, the person who everyone in town knows, the person who maybe gets an eye roll is recognized for being, in a way, one of the most powerful people around.

Nick Capodice: Yeah. So [00:22:30] if you're a listener to Civics 101, I'm going to make the leap of faith here and assume you're someone who cares about politics. So I want to end this episode with a personal request, find something that you care about and then figure out how that thing is affecting you in the town or the city where you live. Search for a local group that is [00:23:00] actively working to change that thing and go to their next meeting. And when you're there, look for the power and try to figure out how this group tries to shift it.

Eitan Hersh: The thing that politics is, is to get power so you can do what you want. That's what that's what politics is. And if you're not trying to get power so you can do what you want. Bye bye. Do what I want. I mean, do selfishly what you want, but do what you think is right for the government. Or it could be selfishly, if you're not doing politics for power you [00:23:30] like, you're just not doing politics at all. You're doing some other thing which I call political hobbyism, which is like, you know, the same thing as, you know, equivalent to some kind of like sports fandom.

Nick Capodice: This is what people in power do. So why not you? That is it for this episode on why we're having a tough time, and that is it for this whole [00:24:00] series on myriad groups having a tough time. Huge shout out to Icivics who collaborated with us on these. Again, if you're not familiar with their work, check it out. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you always. Our staff includes Dana Cataldo, Marina Henke, and executive producer Rebecca LaVoy. Music in this episode from blue Dot sessions, Azura Epidemic Sound and the power shifter of power chords Chris Zabriskie. Civics 101 is a production of NPR, [00:24:30] New Hampshire Public Radio.

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How did we get so red, white and blue?

Whether you fly it, wear it or want nothing to do with it, the American flag says a lot in and about the United States. Red, white and blue is far from exclusive to our nation and yet it is very much our brand... and very much branded on anything we can think to put it on.

So where did the American obsession with our flag come from?

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Transcript

Hannah McCarthy: [00:00:00] Nick. The other day I was craving a vanilla soft serve ice cream with rainbow sprinkles because I have never not craved a vanilla soft serve with rainbow sprinkles. [00:00:10] And at a certain point, I realized that as an adult, I can just choose to eat kid coated desserts and I will be just fine.

Nick Capodice: [00:00:18] Just a quick reminder, Hannah, [00:00:20] this is Civics 101.

Hannah McCarthy: [00:00:21] I'm Hannah McCarthy.

Nick Capodice: [00:00:23] And I'm Nick Capodice, and I'm here to get you back on track.

Hannah McCarthy: [00:00:26] Okay, this story serves a purpose, I promise, because when my [00:00:30] ardently anticipated ice cream was handed out that window, it was not rainbow sprinkled at all.

Nick Capodice: [00:00:37] Everybody's on the edge of their seats here, Hannah.

Hannah McCarthy: [00:00:39] The sprinkles [00:00:40] were red, white and blue. And I thought, right, of course, it's almost summer. It is almost the 4th of July. It is almost [00:00:50] the 250th birthday of America. So red, white and blue, which are everywhere anyway, was going to be, especially everywhere lately. [00:01:00] And then I thought, I really wish that I could ask for regular rainbow sprinkles. But what would that say about me?

Nick Capodice: [00:01:06] Probably that you're more red than you are red, white and blue, if you know what [00:01:10] I'm saying. Hannah.

Hannah McCarthy: [00:01:11] Probably. So today we're for the American obsession, devotion, adoration, deification of the red, white [00:01:20] and blue. Now, Nick, ours is not the only flag with these colors by a long shot.

Nick Capodice: [00:01:26] Oh, absolutely. There is France, Norway, [00:01:30] the Netherlands.

Hannah McCarthy: [00:01:31] Great Britain notably.

Nick Capodice: [00:01:33] Oh, yeah. Duh.

Hannah McCarthy: [00:01:34] In fact, there are dozens and dozens of countries and territories with red, white and blue flags. But [00:01:40] hear those words in that order are shorthand for America. So [00:02:10] I wanted to know, does everyone's heart beat true for the red, white and blue or their nation's equivalent? Or is it just us? But first, where [00:02:20] did it come from?

Nick Capodice: [00:02:22] Come from our flag. Like who designed it?

Hannah McCarthy: [00:02:24] Well, we've talked about that a bit before on the show. It likely was not Betsy Ross, despite [00:02:30] the way the story goes. But it is possible. It is far more likely. It was a guy named Francis Hopkinson who designed flags for the Navy. He is the only one who made a documented [00:02:40] claim to it in his lifetime, and there is evidence that he requested payment in the form of a, quote, quarter cask of the public wine.

Nick Capodice: [00:02:47] Only a quarter cask in [00:02:50] exchange for the enduring symbol of American freedom, equality and union.

Hannah McCarthy: [00:02:54] Well, whoever did design it had no idea what the flag would come to mean. And [00:03:00] at the time, it really was not that big a deal.

Nick Capodice: [00:03:03] How could that possibly be the case?

Hannah McCarthy: [00:03:05] Well, let's get back to where the flag came from. Or maybe a [00:03:10] better way of putting it is what the flag was for. Because the first American flag was a basic necessity during the Revolutionary War. The [00:03:20] Continental Army, who entered armed conflict with the motherland in 1775, needed to distinguish itself from the British Army. Specifically, [00:03:30] it needed an ensign that was different from their ensigns.

Nick Capodice: [00:03:35] An ensign? Yeah, like in Star Trek.

Hannah McCarthy: [00:03:37] Like in Star Trek, and also in militaries in [00:03:40] the real world. Still holding out hope, of course, that Star Trek is the future of the real world, but I digress. Ensign can be the title of a ranking officer in the military, or it can be the [00:03:50] name of a flag, specifically a flag that identifies a ship as military or civilian. So for the British, they took their existing flag, the Union flag, or [00:04:00] the Union Jack, and they shrank it, and they stuck it in the Canton.

Nick Capodice: [00:04:04] The canton. Well, I know what that is. As a self-described amateur vexillologist and this is something we've talked about [00:04:10] before on Civics 101, it is the upper left hand corner of a flag. For us. At least today it is blue with stars.

Hannah McCarthy: [00:04:18] Bingo. So in the British ensigns, [00:04:20] the Union Jack was in the canton, and the rest of the space might be blue, it might be red, it might be white with a red cross. And the revolutionaries looked at that and realized [00:04:30] they needed something different. States had flags, but the Army and Congress did not. So we also shrank that Union Jack down for our canton [00:04:40] and made the rest of it red and white stripes.

Nick Capodice: [00:04:43] And keeping that Union Jack that was to symbolize loyalty, like. We're fighting with you and we're different [00:04:50] from you, but we're still part of you.

Hannah McCarthy: [00:04:52] Well, historians haven't actually come to a consensus on that point. In 1775, when we first started using it, [00:05:00] we hadn't yet declared independence. We hadn't yet blamed King George for our ills. Our beef was with Parliament. Now, one theory is that this was a way [00:05:10] for the Continental Army to. Yes, show loyalty to the King. Another is that it was supposed to show resistance to Parliament, or both. And one way or another it is [00:05:20] nearly identical to the British East India Company flag.

Nick Capodice: [00:05:23] Which was a self-governing company that managed to take over India while remaining loyal to the king. So [00:05:30] it's sort of like we could be our own self-governing entity and maintain Britishness.

Hannah McCarthy: [00:05:36] Yes. And again, who knows if that's what we were trying to say. [00:05:40] Exactly. The symbolism of flags has always been important, but not in the same way it is today. We have to be careful about giving 18th century flags a [00:05:50] 21st century interpretation. At that time, flags were almost entirely about military operations. The Continental Congress passed [00:06:00] the flag resolution on July 14th, 1777, it says, quote. Resolved that the flag of the 13 United States be 13 stripes, alternate red [00:06:10] and white, and that the Union be 13 stars white in a blue field representing a new constellation.

Nick Capodice: [00:06:16] And this was because we had actually become the United [00:06:20] States at this point. We had finally blamed the King. We are finally thinking about ourselves as an independent nation.

Hannah McCarthy: [00:06:27] There's a bit of that. There is also a bit of, [00:06:30] uh oh, when we have the Union Jack on our flag, we might accidentally get fired on by our own side. Better switch it up and we already have the stripe thing going. That's [00:06:40] pretty familiar. So let's just change the canton.

Nick Capodice: [00:06:43] Hannah, was it really that casual?

Hannah McCarthy: [00:06:45] I think it's more like one small detail among many decisions being [00:06:50] made about the operations of a burgeoning military within a tenuous, brand new country. And for years to come, these United States flags would [00:07:00] be haphazard. There was no standard design, no direction on how many points the stars should have, how the stars should be arranged, how many red versus white stripes. [00:07:10] I mean, some of the flags even had blue stripes blue.

Nick Capodice: [00:07:14] Even though Congress passed an act saying red and white stripes. Also, Hannah, [00:07:20] if you're going to say this is our flag, why wouldn't you? I don't know. Include a picture or a press release of some kind that says, [00:07:30] and this is what it looks like.

Hannah McCarthy: [00:07:31] Well, over the course of the revolution, there were a lot of questions about the standard. People wanted to know, you know, like, what exactly [00:07:40] is the design? Do we have some standard that we can use to base our military flags on? But again, the flag is part utilitarian [00:07:50] object. A military tool was a flag representative of shared ideals and solidarity, the sort of thing that could remind people, namely soldiers, [00:08:00] what they were on about. Totally. Was it this near sacred beacon for all citizenry to fly with pride? Uh uh. It [00:08:10] was far more a way of saying, hey, don't shoot, we're friends or we're still here. Or this is ours now, or this is [00:08:20] not a warship.

Nick Capodice: [00:08:21] Or watch out. We're gonna get you.

Hannah McCarthy: [00:08:23] Sure, but you weren't walking down to the corner store to buy a flag to hang by your front door. The average person [00:08:30] is not flying the flag at all.

Nick Capodice: [00:08:33] All right, so obviously, something changed majorly. What happened?

Hannah McCarthy: [00:08:38] We're gonna get to that after [00:08:40] the break. We're [00:08:50] back. We're talking the red, white and blue [00:09:00] stars and stripes. Old glory.

Nick Capodice: [00:09:02] The Star Spangled Banner.

Hannah McCarthy: [00:09:04] The Star Spangled Banner is the nickname of a real, actual flag. And there is only one. And [00:09:10] you can go see it at the Smithsonian. And it is the one that Francis Scott Key wrote the poem about, and that is how it got its name. But that was not until 1814.

Nick Capodice: [00:09:18] During the war of 1812, [00:09:20] when the British were like, actually, you know what? We're not done here.

Hannah McCarthy: [00:09:25] Actually, we started the war of 1812 over trade restrictions during the Napoleonic [00:09:30] Wars. Britain was not really in any real way trying to regain North America.

Nick Capodice: [00:09:36] And there is yet another global conflict I missed in grade school.

Hannah McCarthy: [00:09:39] You and [00:09:40] me both. Anyway, yes. During the war of 1812, Francis Scott Key wrote the poem that would eventually be excerpted for our national anthem. Now, [00:09:50] what happened was this the British Royal Navy bombarded the American Fort McHenry in Baltimore, and when all [00:10:00] was said and done, the American flag was still there. Huzzah! And that success was immortalized in poetry.

Nick Capodice: [00:10:12] And [00:10:10] so the Star-Spangled banner, our national anthem, is actually a war poem.

Hannah McCarthy: [00:10:17] It is very much a war poem, and it isn't even [00:10:20] called the Star-Spangled banner. It is called The Defense of Fort McHenry. The song, our national Anthem, leaves out a lot of the war stuff.

Nick Capodice: [00:10:28] So Francis Scott Key [00:10:30] was documenting the horrors of war and the success of this new country, the land of the free and the home of the brave.

Hannah McCarthy: [00:10:38] Right. And if you think of the line, does [00:10:40] that star spangled Banner yet wave? He's saying, do we still have the fort? And also, more broadly, will this free and brave country prevail in [00:10:50] this war? The flag is the signifier that we are continuing. If it is still there, we are still here. And [00:11:10] yes, the tattered Fort McHenry flag was trotted out for special occasions in the decades following the war. It was representative of something far greater than [00:11:20] itself. The Star Spangled Banner was revered, make no mistake, but we are trying to figure out when this symbol became something that we all [00:11:30] possessed, something that projected our Americanness to others, something we revered, something we put on our hats and t shirts and pillows and mugs [00:11:40] and rugs and shorts and bikinis and anything else we can manage to stick it on. So when did that happen?

Nick Capodice: [00:11:47] Right, right.

Hannah McCarthy: [00:11:49] Civil war, [00:11:50] my friend.

Nick Capodice: [00:11:50] No way.

Hannah McCarthy: [00:11:52] Oh, yeah.

Nick Capodice: [00:11:54] So that is like a hundred years of the flag mostly being this military symbol, not [00:12:00] something that everyone or anyone else really displayed and then all of a sudden it's everywhere.

Hannah McCarthy: [00:12:06] Well, in terms of the Stars and Stripes, the defining moment was the capture [00:12:10] of Fort Sumter by the Confederacy. When they took it, they raised a new flag. Their flag.

Nick Capodice: [00:12:17] Right. The stars and bars. [00:12:20] So, Hannah, was this the Confederacy purposefully riffing off the Stars and Stripes?

Hannah McCarthy: [00:12:29] Oh, [00:12:30] very much so. And very quickly here, the Stars and Bars is not the same thing as the Confederate battle flag that many Americans display proudly to this day. The Stars [00:12:40] and Bars has the blue canton with a circle of. As the name suggests, stars and three bars of color, two red and one white. As one newspaper put it, it [00:12:50] bore, quote, a sufficient resemblance to the old one to keep an everlasting remembrance, the glorious deeds achieved beneath its fold unquote. The [00:13:00] idea was not to throw the baby out with the bathwater, but to retain an old patriotism while building a new one.

Nick Capodice: [00:13:07] So Sumpter was captured. And then what? Suddenly [00:13:10] everyone or every unionist, I guess, wants to display Old Glory, basically.

Hannah McCarthy: [00:13:16] Yeah. Flag culture took off very quickly. [00:13:20] Flag day, which we now celebrate on June 14th, was proposed shortly after the capture of Fort Sumter. Conceived of as a way to support the Union troops, we [00:13:30] were a nation divided, clashing ideals. So on the battlefield, flags signified literally and politically. Spiritually, [00:13:40] where you stood, where the lines were drawn as brothers and fathers, sons and friends killed each other for what they believed in. [00:13:50] The flags were the objects that told everyone who you were, what you represented, and what represented you.

Nick Capodice: [00:14:02] And [00:14:00] I guess if you're going gonna roll out a brand new flag to represent your side, your movement, and I'm talking about the Confederacy here, you're going [00:14:10] to want a lot of people to see the stars and bars.

Hannah McCarthy: [00:14:13] Yeah. And there were these local flag raising ceremonies throughout the South. There were schematics of the design available for people who [00:14:20] wanted to copy it. It appeared on newspaper mastheads, on envelopes, on railroad cars, courthouses, hotels. Likewise, in the north, the Stars and Stripes was [00:14:30] displayed on schoolhouses, churches, and even tucked into hats and lapels.

Nick Capodice: [00:14:35] Lapels. So people are wearing the thing that used to be [00:14:40] reserved for the military and special occasions.

Hannah McCarthy: [00:14:42] That's right. During the Civil War, displaying your flag became fully entwined with patriotism for whatever side [00:14:50] you were on. And a lot of historians think of this as the beginning of the American flag, as a symbol of devoutness to the only national religion [00:15:00] America has itself. It has been referred to by some as a flag cult.

Nick Capodice: [00:15:09] Wait, what does that mean? [00:15:10]

Hannah McCarthy: [00:15:10] Officially, Nick, we have no religion, right? Though I'm sure many would beg to differ. We have no national religion. We have no king. But people [00:15:20] are people, and a lot of the time they need fervor. They need to worship something. And after the Civil War, after so many had died for an idea, and by transference [00:15:30] for a flag, and the idea and the flag that won out was the Stars and Stripes Old glory, its sacredness took hold. [00:15:40]

Nick Capodice: [00:15:40] Well, Hannah, is it treated as sacred, though? Like if we're putting it on beach towels and underwear.

Hannah McCarthy: [00:15:49] Well, I mean, [00:15:50] Nick, that's an issue in religious sects around the world. Is it right and pious to create physical representations of something you worship? Is iconography holy or is [00:16:00] it blasphemy? And in the United States, that truly runs the gamut. There are those who see their Jesus t shirts or car decals, or any number of other objects as [00:16:10] a signifier of their devotion, and those who see it as oppositional to real Christian piety.

Nick Capodice: [00:16:16] All right, so speaking of the iconography thing, Hannah, when did we start [00:16:20] putting the flag on everything?

Hannah McCarthy: [00:16:22] By the first centennial. 1876, photography and lithography had made it possible to stamp the symbol of freedom [00:16:30] of persevering ideals on loads of commercial products. It also allowed politicians to stamp the flag on their campaign materials.

Nick Capodice: [00:16:39] All right, [00:16:40] so the flag became a tool for commercialism and politicking.

Hannah McCarthy: [00:16:45] Just as it is today. Simultaneously, there were those who saw this as an exploitation [00:16:50] and desecration of the sacred symbol of the United States. We established Flag Day in 1877. Flag committees were formed around the country to dictate the proper use [00:17:00] of the Stars and Stripes to learn, by the way, how the Pledge of Allegiance came to be. Check out our episode on that. World Wars one and two certainly catapulted the flag to a new stratosphere of reverence and [00:17:10] representation of liberty. And finally, Congress approved a flag code that would tell people exactly how they should and should not treat the flag.

Nick Capodice: [00:17:21] To [00:17:20] that point, Hannah, the flag code says that the flag must not be used for advertising purposes of any kind whatsoever. So [00:17:30] what does that make all those old Navy shirts?

Hannah McCarthy: [00:17:33] Well, the flag code is more guidelines than actual rules.

Nick Capodice: [00:17:40] You're [00:17:40] always finding a way to sneak it in. Hannah.

Hannah McCarthy: [00:17:42] And by that, I mean it doesn't contain much in the way of enforcement. Are the Old Navy t shirts and all of the other flag things illegal? There [00:17:50] are those who say, technically yes, but without any actual penalty. There's not much you can do. Now, there are state American flag laws as well. In 1907, for example, the Supreme [00:18:00] Court upheld a Nebraska law prohibiting desecration of the flag when a businessman was charged for putting an American flag label on a bottle of beer. That said, Nick, [00:18:10] if patriotism is one American deity, capitalism is another. The towels and the shoes and the board shorts and the rugs, they're here to stay.

Nick Capodice: [00:18:20] All [00:18:20] right. So I am wondering if we really are a little bit more flag obsessed than other countries. Like, we clearly have a unique history [00:18:30] with it, but are we the only ones who do this, who like, print every object we can think of with the stars and Stripes?

Hannah McCarthy: [00:18:37] Well, not exactly. The Union Jack is [00:18:40] heavily merchandised in Great Britain, though the national devotion there is more intertwined with the Royal Family, admittedly a complicated and not at all universal devotion. In Denmark, [00:18:50] the Danish flag is displayed everywhere, including on Christmas trees. In France, the flag blue, white and red, continues to serve as a symbol of a successful [00:19:00] revolution and of national principles of liberty, equality and fraternity, but Americans are undeniably among the most fervent flag devotees [00:19:10] on earth.

Nick Capodice: [00:19:11] All right, last question here, Anna. We have talked before about the proliferation of different kinds of flags in the United States in recent years, [00:19:20] flags that represent or signify movements, opposition division. Flags that say sometimes by way of redesigning the [00:19:30] American flag. We are the true representation of America, and the American flag itself has become to some divisive or [00:19:40] at the very least, conflicting. Because what it means to be a patriot, to be an American, to honor and Revere liberty is incredibly fragmented [00:19:50] right now. The flag itself, by way of its use, or some might say, overuse in certain spheres, has been perceived as politicized as representing [00:20:00] a party instead of a people. So my question is, has this ever happened before? Has the symbol of unity ever [00:20:10] been a symbol of division?

Hannah McCarthy: [00:20:13] Now, whether it comforts you or not, it most certainly has. Overwhelmingly for the black American population [00:20:20] of the United States, for whom the symbol of unity and of freedom did not represent their reality, whether under enslavement or. In the ensuing decades of oppression and violence, the American [00:20:30] flag has been conflicting or worse. And it was following the Vietnam War that flag burning was found to be a constitutionally protected form of speech after antiwar protesters [00:20:40] burned Old Glory, when to them it had become representative of the American government's transgressions. But I think if there were ever a time that the flag was as widely [00:20:50] fraught as it is today, it would be the exact same era that made the flag what it became.

Nick Capodice: [00:20:57] And you mean the Civil War?

Hannah McCarthy: [00:20:59] I do. [00:21:00] There was pain, melancholy, Longing, disgust and fury in the South when it came to the Stars and Stripes. [00:21:10] The Union, as they saw it, had been destroyed by. As one historian put it, quote, abolitionist fanatics and their unprincipled, despotic president. [00:21:20] It doesn't surprise me, Nick, that the Civil War complicated and cemented the American flag as something so much grander than a military tool. When [00:21:30] we turned our resistance and weapons against each other, against ourselves, the American flag became a symbol of division, even [00:21:40] as it fervently united one half of the nation.

Nick Capodice: [00:21:44] But even the Confederacy couldn't let it go. Not entirely. If they were going to have a new flag, it [00:21:50] was going to honor what the original represented or what it had come to represent.

Hannah McCarthy: [00:21:57] Yeah. And I think that even if today Americans [00:22:00] are once again looking at one another over that flag, It is hard to the point of being painful to ignore the people [00:22:10] and victories and defeats and joy and anguish woven into it. I'm not sure we can stop the [00:22:20] flag from meaning something more than any one era or body politic or movement or president. For what my $0.02 is worth, I think we threw [00:22:30] that constellation of stars too far up into the heavens. It's more a question of whether we can still see it. By the dawn's early light.

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Why Students Are Having a Tough Time

Today we share our second installment on why things are tough in the civics world. Specifically, we talk about how students are doing in civics classrooms and on national assessments.

But! It's not all bad news. Shawn Healey (Chief Policy and Advocacy Officer at iCivics) takes us through the myriad state bills that are currently in the legislative process which will affect civic education, and we hear from three students (Ava-June Tackett, Shreya Raman, and Ben Kurian) on what they think can improve civic learning and reduce partisanship.

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Transcript

Speaker 1: Well, new this morning. The National Education Report card was released overnight. It is painting a concerning picture of our students.

Speaker 2: Academic performances have really slipped over this last year, but some scores hitting lows set in the early 2000.

Speaker 3: The latest report card shows kids history scores are now historically low. The nation's middle schoolers are struggling to explain major themes and events in the country's past, and lack a basic understanding of the way government works.

Nick Capodice: You're [00:00:30] listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today, our second episode in collaboration with Icivics, talking about what Hannah and I learned at the Civic Learning Week National Forum in Philly. Today, we are going to hear why, civics wise, the kids are not all right. But it is not all doom and gloom today. People who are fans of civics and civic education, which I imagine is a large chunk of the people who listen to this very show, those folks are gonna get some good news, [00:01:00] so stick around. All right, everyone. So a few seconds ago, I said the kids are not all right, but I should really take that back. They are all right, and they always will be. At least according to Pete Townshend and The Who. But in all honesty, we could be doing a better job when it comes to helping them out. At least when it comes [00:01:30] to civics.

Hannah McCarthy: You've probably heard Nick or me talk about this before. When we look at federal dollars appropriated toward civic education, it is compared to what is appropriated for reading or math a small, small amount.

Nick Capodice: And to call one group out. By way of comparison, the federal government spends about $50 per student per year on Stem education.

Hannah McCarthy: Science, technology, engineering and math. Nick, what is the current spend on civics? [00:02:00]

Shawn Healey: The appropriation for fiscal year 26, which is will end at the end of September. We're at $23 million, which is about $0.46 a student.

Nick Capodice: This is Shawn Healy. Shawn is the chief policy and advocacy officer at iCivics. He travels the country constantly to talk to state legislatures and individuals. And he advocates for, you know, policy that improves civic education and 23 million like he said, [00:02:30] it's not a small number, I know, but it is 0.03% of the $63 billion federal education budget.

Hannah McCarthy: So I know that we do not spend a lot on civics education federally, but how well are we doing when it comes to civic education? Do we test it?

Nick Capodice: Yeah, we sort of do. And this is all part of NEP, which we refer to as nAEP, the National Assessment of Educational progress, which people also might know as the nation's report [00:03:00] card. Civics assessment is not mandatory. States can opt in to see how proficient their students are at civics, but the data we get from nAEP is one massive nationwide assessment of how the United States is doing its civics.

Shawn Healey: Uh, since 2010. We've only done that with eighth graders and you've seen the headlines. The proficiency numbers is in 2022 was at 22% proficiency, which [00:03:30] was a little lower than in the past. Um, but, but, uh, that's kind of where we've been stuck in that range, uh, really since the assessments unemployed and down to the state level, by our count, 29 states have some type of assessment in civics, but the majority of them are using some version of the US naturalization test, which, yeah, is somewhat controversial.

Hannah McCarthy: What are the main concerns with using [00:04:00] the naturalization test?

Shawn Healey: It requires a pretty low level of knowledge. So what are the colors of the stripes on the flag or what do they mean? For example, not saying that that's that's not important, but the concern is that if that's if that's all we're teaching, uh, in civics, that's that's insufficient 22% proficiency.

Hannah McCarthy: Does that make it our weakest subject?

Shawn Healey: So the only test that students do worse on, uh, on the nation's report card is American history. So [00:04:30] we're at 15% proficiency there, uh, on the last test. So, uh, we, we see the two very much tethered, right? That U.S. history and civics need to be taught in sequence. And they speak to one another, but those are the lowest scores of all the subjects tested by nAEP. It speaks to the marginalization, the broader marginalization of social studies. Right. Um, And in particular, just imagine if we weren't teaching reading and math in K-5, right? And [00:05:00] we're in a place now where we're lucky if students are getting 20 minutes a day on social studies. So it's, that's I don't know about you, Nick, but my recollection of elementary school growing up was social studies was right there with the other subjects, right? It wasn't it wasn't bigger, but it was very equivalent. And that is just not the case. I have a daughter in elementary school and they teach social studies like every other semester, and so they alternate social studies and science.

Nick Capodice: Did you [00:05:30] have social studies in eighth grade?

Hannah McCarthy: Hannah I did.

Nick Capodice: I did too. I think there was some geography in there as well. I may have mentioned it in another episode, but our teacher started every class by asking us, how you doing? And we were supposed to shout hungry! This was a reference to All the President's Men, where Harry Rosenfeld is talking about Woodward and Bernstein.

Speaker 7: He wants on the story bad. They both do. He knows a lot of people. Howard. They're hungry. You remember when you were hungry?

Hannah McCarthy: So what happened? How did we get to [00:06:00] 20 minutes a day on social studies and such low proficiency scores?

Shawn Healey: Yeah. I mean, a big driver of this was No Child Left Behind. Right. Which goes goes back 25 years now. And many states. I'm here in Illinois. We had a state social studies test. And essentially that law said, we're going to hold you accountable for student performance in reading and math. Um, so many states jettisoned assessments and other subject areas. And as they say, unfortunately, in the current [00:06:30] era, if you don't test it, you don't teach it, but schools are punished and rewarded for student performance in reading and math. So that's where the attention lies. And I think it's also fair to say, um, some of the retrenchment of the teaching of civics and social studies preceded No Child Left Behind. So this isn't just, you know, start in 2001, In 2002. Its controversial, right? So broadly American support teaching American history and civics. That's that's a 9010 [00:07:00] issue. Um, but then when you get into what we teach, how we teach, that's more controversial, right? And, uh, unfortunately, in this moment, if it's too hot to touch, you might put it over there, right? So it's the combination of not being a priority from the perspective of policy. And then, uh, in some corners being considered too hot to handle.

Hannah McCarthy: Nick.

Nick Capodice: What?

Hannah McCarthy: It's a grim picture. Yeah. Some people may consider civics and U.S. history too [00:07:30] hot to handle, but it is us. I don't mean you and me. Nick Capodice and Hannah McCarthy. I mean, civics is about understanding how we are governed, how we operate, how we got here, how we negotiate with each other, talk to each other. Do you have any good news?

Nick Capodice: I do. And the good news is that while federal support and programs focused on civics is, frankly rather anemic, there is a [00:08:00] tidal shift at the state level.

Shawn Healey: This spring, we've been tracking over 240 bills in 40 states that impact civic education, and some of those big ones are already across the finish line. Many states are already adjourning. Um, just as we're recording this just yesterday, uh, Alaska, uh, passed legislation that requires a high school course in civics, an assessment in civics, and a civic [00:08:30] diploma seal. Mississippi adopted a high school course requirement. Civic diplomacy was just exploding.

Hannah McCarthy: What are civic diploma seals?

Nick Capodice: This is something that at the start of this year, about a dozen states did where they recognize high school students for excellence in And civics by putting a state seal on their diploma. So ten more states are currently in the process of adopting state civics seals. They have either signed [00:09:00] it into law, or it is currently in a bill moving through the legislative process.

Shawn Healey: It's not crazy to say we could see 50 state adoption of civic diploma seals by 2030. The reason I think they're spreading so quickly is, or there are several reasons, but one, pretty easy to adopt, right? We're not mandating a new course. This is voluntary, right? So it's more of a carrot approach versus a stick approach. It aligns with what lots [00:09:30] of other states are doing, uh, with respect to putting forth portraits of a graduate. And so 26 states have already put forth these portraits, and they are not overtly civic, but there are certainly civic skills or competencies that they prioritize. So information literacy, for example, the ability to have conversations across ideological divides, uh, engagement in communities, these are often [00:10:00] part of, uh, graduate portraits and civic feels very much align with those. So I think you're getting, we're, we're moving to a place where, uh, civic competencies are prioritized. And we'll, uh, schools and districts and states will need to think of young people's civic development, not just in a single high school class, but over a K-12 trajectory. So that's a really positive, uh, development.

Hannah McCarthy: So these seals aren't just like proof that, you know, the three branches [00:10:30] and that Marbury versus Madison established judicial review. They are evidence that you are someone who does the work of being a citizen. You're informed, you participate in your community.

Nick Capodice: Yeah. And if you're leaving high school, this can go on your resume or your college application, Whatever. All right. So that is good news number one. Here is the second shift. We are, for the first time in decades changing how we assess civics.

Shawn Healey: The [00:11:00] National Assessment Governing Board approved a week ago expansion of the nAEP civics assessment as soon as 2028. So they were just in the field this spring doing the eighth grade assessment again. But come 2028, they're going to do the eighth grade assessment and they're going to do it expanded to allow state level data, which we've never had for civics. We have that in reading and math. Uh, states have to opt in, so some may not. Uh, [00:11:30] but, uh, in having that data, we'll be able to compare how states are doing relative to one another with respect to civics. Um, so that's kind of the other side, that kind of carrot stick approach, civics heels, uh, in this, this new, uh, nAEP assessment also kind of inside baseball, but they are going to revise the framework.

Hannah McCarthy: Meaning what? They're rewriting the questions.

Nick Capodice: Yeah. I'm putting a link to the current assessment in the show notes, just in case any of you out there want to take a crack at it and see how well you [00:12:00] do on sample questions versus an eighth grader. But these questions, Hannah, they have not been revised in a long time.

Shawn Healey: How long for Nape Civic? So it hasn't been revised since the 1990s.

Hannah McCarthy: The 1990s, my so-called life in Buffy.

Nick Capodice: Blossom in Beverly Hills, 90210. Hannah.

Shawn Healey: Just a little bit is changing our politics since then. It's not. It's very focused on institutions, the three branches of government, etc., but [00:12:30] but doesn't recognize, I think, the fact that our democracy has become increasingly digital, right? So the way we engage in democracy is so different. Um, it is very, you know, it's probably the best characterization of the framework is it is a mile wide and an inch deep. So as we teach about the three branches of government, for example, it's not just important that we going to name the three branches of government, but can we talk about how they interact with one another, right? These divided [00:13:00] and shared powers. And then, you know, this is a very ripe conversation in this moment. Uh, how is that balance of power evolved over time? Like that's the level of conceptual understanding we'd like to see this new framework encompass.

Nick Capodice: And the reason this is so important is that we read that big scary national 22% proficiency number. But like we so often say in other episodes, Hannah states do education, [00:13:30] right, not the federal government. And if we can see which states are doing better at civics and which states need help, that can make a big change. But I have to add, states have to opt into this voluntarily. So whether they do or not will remain to be seen.

Hannah McCarthy: Did Sean say if there was any indication that a lot of states would do this?

Nick Capodice: We cannot know for sure. But he is pretty hopeful.

Shawn Healey: The call hasn't happened yet, but we heard from our friends [00:14:00] at Nagb that they had an informational meeting in 45 states showed up. So that was surprising and really encouraging. What I didn't point out with those programs is there are red states, there are blue states, there are purple states. You know, that there's there's just broad adoption. And that's really encouraging to me.

Hannah McCarthy: All right. Nick. So that is how we in terms of states are changing policy to improve civic education. But what about the kids themselves? How [00:14:30] do they think they're doing?

Nick Capodice: Well, I'm going to share some students thoughts. Three students to be exact, three people who also happen to be among the brightest civic minds I have ever encountered in my whole life. Right after a quick break.

Ben Sheehan: And now, sitting on stage with some of the most accomplished people I've ever met who happen to be children, I'm starting to feel bad about myself. Uh, if you're an adult in this room [00:15:00] and you hear what these kids have done already, you might feel a little bit of that too. But far more than that, you'll feel really good about the future.

Nick Capodice: This is from a panel at the Civic Learning Week National Forum, where fellow civic explainer Ben Sheehan. He's the host of Civics Made Easy on PBS. Check it out. Ben was interviewing some very accomplished high schoolers on what kind of policies they cared about, what they're up to in their schools. So they got off the stage, and I was able to snag them for a few minutes [00:15:30] to hear what they are seeing in the classroom. I talked to Ava June Tackett.

Ava June Tackett: I'm Ava June Tackett, and I'm a sophomore at Johnson Central High School in Johnson County, Kentucky.

Nick Capodice: To Shreya Rahman.

Shreya Raman: Hi, my name is Soraya Rahman. I go to bases out of Turkey. I'm a junior in Phoenix, Arizona.

Nick Capodice: And to Ben Curran.

Ben Kurian: I'm Ben Curran, I'm a current sophomore from Olentangy Liberty High School. I'm in Powell, Ohio. That's a suburb of Columbus, Ohio.

Ava June Tackett: So I started my civics journey, I guess in the national civics be through the Chamber of Commerce [00:16:00] Foundation. And my speech and essay was over improving civics education in schools. And I got to create a community problem solving project called Young Government. I got to write a children's book called Honestly Abe.

Shreya Raman: I've advised for the Arizona Board of Education, the charter school Board, and the Governor's Commission. I've given a TEDx talk and I work in politics. So I managed, um, my first ever campaign at 14. We lost.

Ben Kurian: Um, I think really three formative experiences I've seen kind of through my civic identity, the first one [00:16:30] being filmmaking. So when I was in seventh grade, I kind of realized Ohio was a leader in national opioid deaths. So I created a documentary about that, trying to raise awareness, break the stigma. Um, I was fortunate to win first prize in a national competition hosted by the C-Span network. And ever since then, I've been creating a lot more documentaries on a variety of different civic issues.

Nick Capodice: So I asked them first, what's it like where you go to school? Like, what do you feel personally about how things are going in your civics [00:17:00] classroom?

Ava June Tackett: Teachers are terrified to teach civics because like I said, it's so polarized. And I'm from Kentucky, which and it's no secret that Kentucky is one of the most polarized states in the nation, but teachers are scared of the Facebook posts that follow. They're scared of the classroom switches that happen. And it leads to them not teaching civics. Um, because it's safer to not. But when you think about it, it's not safer because if you don't teach basic principles and how to be involved, [00:17:30] then you face a nation that is not educated and that that is the scariest thing, um, that our nation is facing is people that aren't. They don't know what they're talking about.

Shreya Raman: I'm a teacher's assistant, a TA for AP government. And so the class, the classes I teach in, they're they're such curious kids. They're all freshmen because my school makes all of us take AP government as freshmen. Um, and they're so curious about especially what's going on with current events and how that relates to the [00:18:00] curriculum. And I watch my government teacher, um, get all these questions. And there's always a sense of like, what will parents say? What will administrators say? If I, if I talk about this issue, especially when you're asking about something like current events, like, like what's going on internationally, what's going on domestically in America, um, and teachers are so scared to talk about it because even though it's such vital information, there's always going to be a parent out there or an administrator or a policymaker out there who is going to see it as a brainwashing children, which I don't think informing children [00:18:30] is, is brainwashing them. When when a student asks in class, what's happening with, with this legislation? What's happening with, with this country? Um, they're asking because they want to know. They're curious about the world around them. And it's so dangerous telling, telling teachers they have to squash that curiosity for the sake of not being controversial because controversy is not a bad thing. Everything is controversial.

Ben Kurian: We're seeing a lot of polarization. Like that is undeniable. Um, you know, party specific advocacy. Um, so what our students do, you know, our 32 [00:19:00] high school undergrad and med students, they come to us, they bring us like a specific bill that's being worked on or trying to be passed through the House or Senate. Um, and, and they tell us, hey, like I support this issue or like, I don't support this issue. And it's usually never, you know, party based, it's, it's more just based on the issue. Like, do I like the implementation of this bill or do I not? Um, maybe it's teaching kids more about, you know, specific issues, right. Or specific policies. Um, I think that specificity is the [00:19:30] way to, uh, to drive out polarization, uh, and to foster like a better civic education.

Nick Capodice: Then I said to them, look, you are three of the most civically engaged students in the nation. You've either written a book, you've made a documentary, you've run a political campaign. What advice would you give to a fellow student who feels that they don't have the opportunity? You've had [00:20:00] someone who maybe feels like, hey, great, when I'm 18, I can vote. But politicians don't seem to care that much about young voters, and young voters don't have a good turnout. Maybe this is someone who feels a little disenchanted by politics in general. What would you say to that student?

Shreya Raman: But when you talk about like the inherent pessimism surrounding people in terms of political efficacy, I really want to emphasize that pessimism does not breed inefficiency. One of the best things you can do as an informed citizen is being able [00:20:30] to critique the country you love. And so whether it's through basic civic actions like voting or, um, things like volunteering for a campaign, phone banking, going door to door for a cause that you really care about. Those are all things that's available to everyone. I cannot stress enough how every political candidate in your state is going to have and look for volunteers to to phone bank, to go door to door and talk about certain issues, right? Like I've done that so many different times. I help lead phone banking now. Um, there, there will always be an opportunity [00:21:00] to, to advocate for a cause that you really care about.

Ava June Tackett: So I really think it's important to emphasize that civics isn't always politics. Politics is turned into kind of a dirty word in America right now because we are so polarized more than ever before. And so civics is not. It can be politics, don't get me wrong. I mean, being involved in a campaign is great. And that's wonderful work that you're doing. But civics is on a more general scale. Anything to [00:21:30] impact your community. And that's what kids need to realize is when they talk to whenever they go play basketball with their friends from other school districts, that civics because you're making a connection. Civics is being involved, making the connections of people in your community and not letting the word community be limited to where you're at.

Ben Kurian: Children are inherently very innocent, right? We are super like enthusiastic, engaged. I have a family friend who's a three year old who will just go on [00:22:00] and on and on about a variety of topics. But I think it really means that just like we care, like we are like pretty much involved. Um, so that isn't really the problem. It's more just knowing how to get involved. Um, so I think the way to know how to get involved is to just like, see the impact that, you know, society has on you. It's not a problem of them being interested or like wanting to help out their community, because I'm sure they do. Um, it's more just like knowing that they can do that and how to do that. Um, so I think giving students the tools to, [00:22:30] you know, maybe how to reach out to a local policymaker or, giving them the tools to advocate maybe on social media. There's so many different avenues today, especially, you know, living in the 21st century to be civically engaged. And I think it's just teaching our children just how to use those tools.

Shreya Raman: I know a lot of people from less fortunate backgrounds who always talk about how they don't have time. Time for politics or time for civics because they're trying to put food on the table for their family. You fix that [00:23:00] issue by advocating politically, by having civic engagement. If you're struggling to put food on the table, if your parents if you're watching your parents struggle to make a living, the way you fix that systemically is by advocating for policies to raise the minimum wage or for more affordable health care. That's how you you make a difference. And no matter what issue you're struggling with, there will always be a political avenue for you to take to fix that issue.

Hannah McCarthy: Nick, you called this episode why kids are having [00:23:30] a tough time, but it feels like not only are the kids all right, maybe because of them, the rest of us are gonna be.

Nick Capodice: Do you think I could use, like, a who sample, or would I get into trouble for that? That's it for this who? This episode on how students feel they're doing in the civics classroom. This episode is made in collaboration with Icivics by me, Nick Capodice with You Hannah McCarthy. Thank you. Our staff [00:24:00] includes producer Marina Henke, producer Dana Cataldo, and executive producer Rebecca LaVoy. Music. In this episode from blue Dot sessions, Epidemic Sound and the wondrous Chris Zabriskie. Civics 101 is a production of NPR New Hampshire Public Radio. By the way, New Hampshire just signed a bill doing the Civic Seals. True story. Check it out, Sid. See you later.

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How making people wait sparked the American Revolution

Once upon a time, American British colonists were separated from power, decision-making, culture and information by thousands of miles and many weeks. As ⁠Helena Yoo-Roth⁠ puts it, time “flowed evenly outward” from the homeland.

This is the story of waiting, longing and realizing that time just might be on our side as we approached the American Revolutionary War. Helena Yoo-Roth is the author of the forthcoming American Timelines: Imperial Communications, Colonial Time-Consciousness, and the Coming of the American Revolution.

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Transcript

Hannah McCarthy: [00:00:00] It's October 25th, 1760, and King George the Second has died.

Helena Yoo-Roth: [00:00:08] Honestly, there should be no [00:00:10] news that is more important than the death of the king in the administering of a nation and empire.

Hannah McCarthy: [00:00:17] This is Helena Yoo-Roth.

Helena Yoo-Roth: [00:00:19] I [00:00:20] am Helena Yoo-Roth. I am the Barbara postdoctoral fellow at the McNeil center for Early American Studies at the University of Pennsylvania. [00:00:30] I got my PhD from the Graduate Center of the City University of New York, and I study the coming of the American Revolution.

Nick Capodice: [00:00:39] So [00:00:40] the king dying is a big deal because he's in charge of everything, right?

Hannah McCarthy: [00:00:44] Not quite.

Helena Yoo-Roth: [00:00:45] Not because the king is making his decisions on everything, but because it's [00:00:50] this view of the body politic with the king at its head, so that, you know, judges and assemblies and your local jailer and everyone, Every [00:01:00] tax collector is working off of the power of the king.

Nick Capodice: [00:01:04] All right. So it's more like this is important because without the king, nobody has any power.

Hannah McCarthy: [00:01:09] Bingo.

Helena Yoo-Roth: [00:01:09] There [00:01:10] was a administrative law passed in Great Britain that said, okay, after the death of the king, we will have a [00:01:20] six month extension of government. Meaning the dead King's judges, the dead king's jailers, the dead King's tax men can all continue to operate for six months. Cool. [00:01:30] Cool. And that is plenty of time for the nation. But when you start taking those six months and spending three of them [00:01:40] to travel, then that looks like potentially there might be a problem.

Nick Capodice: [00:01:44] Oh.

Hannah McCarthy: [00:01:45] So you see where this is going?

Nick Capodice: [00:01:47] Well, my best guess is this is going to the 13 colonies. [00:01:50] Although three months seems like a long time.

Hannah McCarthy: [00:01:54] Typically 6 to 8 weeks minimum. So three months is not out of the [00:02:00] question. But back to the King. He's dead.

Helena Yoo-Roth: [00:02:04] New Yorkers raised the question of at what point should the six month extension of government [00:02:10] begin? Is it when the king died in Kensington Palace, or is it when the New Yorkers got the official news? Is it in October or is it [00:02:20] in January? When did the king die?

Nick Capodice: [00:02:25] When did the king die?

Hannah McCarthy: [00:02:27] Okay, this maybe sounds ridiculous, but for [00:02:30] the colonists, the king dies when they hear that the king died.

Helena Yoo-Roth: [00:02:37] And this is something that they try to legislate. And [00:02:40] the New Yorkers say the king dies when we receive notice. We can't possibly be expected to act on terms where we don't know. And so the six month extension of [00:02:50] government should be from when we hear about the king's death. Similar pieces of legislation are passed in new Jersey, South Carolina [00:03:00] and Bermuda. And in new Jersey, South Carolina and Bermuda. Those acts are passed and the governor sign off. And then later on [00:03:10] in London they get shot down by the Empire. But in New York, there's a very curmudgeonly old governor named Cadwallader Colden, who is trying to curry [00:03:20] favor with his imperial overlords. And he's determined that this is not going to pass. And so the New Yorkers tried three times to pass this piece of legislation, [00:03:30] and he keeps vetoing it. And you see them really wrestling with the question of when does something happen? What does time mean? And the New Yorkers [00:03:40] are like, I know it looks insane, but it's actually very, very sane if you see it over here.

Hannah McCarthy: [00:03:45] This is civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:03:47] I'm Nick Capodice.

Hannah McCarthy: [00:03:48] And today we are learning [00:03:50] the story of colonial revolt from a new perspective. What happens when you make people wait.

PRE ROLL

Helena Yoo-Roth: [00:04:18] Although [00:04:10] colonists [00:04:20] at the peripheries and imperial officials at the center both had to wait for news to travel across the Atlantic, not all kinds of waiting were created equal. Furthermore, [00:04:30] the passage of time did not always equate to waiting. Orders flowed from one direction, from the Metropole to the peripheries. Imperial officials in Whitehall didn't wait [00:04:40] for colonists. Instead, delays in communication were simply the consequence of time that flowed evenly outwards.

Hannah McCarthy: [00:04:47] Greenwich Mean Time, aka London time, [00:04:50] was not yet a thing, but we're going to be talking about what it meant when the colonies were on the London clock despite being many weeks away. [00:05:00] And this is something that Helena is thinking a lot about.

Helena Yoo-Roth: [00:05:05] I am working on a book project titled American Timelines, Imperial [00:05:10] Communications, Colonial Time Consciousness and the coming of the American Revolution.

Nick Capodice: [00:05:15] Colonial time consciousness.

Hannah McCarthy: [00:05:17] We will get there, but we're going to start [00:05:20] slow. Really slow. Because when something big happens in Europe, when it hits the newsstands in London, for example, you know, read all about [00:05:30] it. War of Spanish succession over.

Nick Capodice: [00:05:32] What's that?

Hannah McCarthy: [00:05:34] Typical American, always the last to hear. Anyway, you're gonna know that pretty dang fast in England. [00:05:40] But for the 13 American colonies, first that news has to get on a boat. And [00:05:50] that boat has to cross the ocean.

Helena Yoo-Roth: [00:05:53] At a minimum, it takes six weeks. Honestly, it takes much longer than that.

Hannah McCarthy: [00:05:58] And as that news becomes an [00:06:00] old story in London. It is just reaching the ports of Boston or New [00:06:10] York. But all of this time has passed. And you, the colonial news consumer, you know, [00:06:20] this is old news. It's only new to you. It's an echo of the past.

Helena Yoo-Roth: [00:06:33] What [00:06:30] happens when you stretch the thin skin of a nation across a 3000 miles of ocean to [00:06:40] a maritime empire? What happens then? Because all of a sudden, when you are bringing the London newspapers, maybe [00:06:50] six weeks of newspapers all at once, and then you're dropping them in the colonies, and people at the ports are processing them. It's sort of like binge watching Empire and [00:07:00] then having this long gap in which they have their own theories, their own concerns.

Nick Capodice: [00:07:06] Like getting really into a TV show and thinking you're going to be able to watch the next season [00:07:10] right away, but then you find out you gotta wait a year to see what happens next.

Helena Yoo-Roth: [00:07:14] Colonists are living in these multiple timelines where they're having to pay attention to what's happening [00:07:20] in London, and they're also trying to figure out how to best work the system at home, and increasingly becoming aware [00:07:30] that in the six weeks that it took for news potentially to get to you, six weeks of events have already occurred that you don't know about. And how do you deal with that? [00:07:40]

Nick Capodice: [00:07:40] How do you deal with that?

Hannah McCarthy: [00:07:41] Well, I mean, eventually you really don't.

Helena Yoo-Roth: [00:07:47] I study the way [00:07:50] the development of something I call colonial time consciousness catalyze the coming of the American Revolution.

Nick Capodice: [00:07:56] So Helena is saying that this time consciousness thing. This [00:08:00] contributed to the revolution, the delay in the binge.

Hannah McCarthy: [00:08:03] It's about more than the delay and the binge. It's about who controls information, who controls [00:08:10] the timeline, and who has to wait.

Helena Yoo-Roth: [00:08:13] Well, you know, everyone has to wait, right? You know, communications is what it is. Everyone's waiting for communications, and [00:08:20] I just want to intervene in that and just say making people wait is an expression of power and the specifics of who waits on whom and for what, [00:08:30] under what terms and conditions they super matter. And so at one extreme, the experience of waiting forces individuals into sort of a non-place of immobility, where their agency [00:08:40] and control are stripped away, and where they have to reckon with their own powerlessness. And part of the pain of waiting comes from the growing disparity between the waiter's perceived time and [00:08:50] the time of the powerful. And so thinking about what waiting meant to the colonies means that we can begin to see how time and power are not only interconnected, but also [00:09:00] a method of discipline and control within the British Empire.

Nick Capodice: [00:09:15] Hannah. [00:09:10] It's so human. It's so paternalistic. [00:09:20] Like you think about a parent and a child, right? We are always trying to instill patience in our kids. You are the one in charge, and they have to wait [00:09:30] for everything from a trip to the playground to a snack.

Helena Yoo-Roth: [00:09:34] There's a reason that a lot of colonists and imperial people use the family [00:09:40] metaphor. Mother country, colonial child, rebellious children, uncaring mother. You know, there are all of these [00:09:50] ways. And there's also a lot of temporal considerations of what is appropriate for a child. What would it mean to have a fully grown adult child as a colony?

Hannah McCarthy: [00:09:59] See, what's [00:10:00] going on is the colonists are waiting is that they are also growing. They are developing. They have their own ideas, their own sense of autonomy. They even help their [00:10:10] dad out.

Helena Yoo-Roth: [00:10:10] And after the Seven Years War, in a lot of ways, when the British colonists are celebrating their Britishness, they're also celebrating their adulthood that they're [00:10:20] contributing. They're not just peripheral anymore. They matter. They're important. They can do stuff. They're so cool. And at the same time, that deep desire for recognition, [00:10:30] in the same way that growing children desire recognition and approval.

Nick Capodice: [00:10:38] Hang on and forgive me for this, but [00:10:40] what happened during the Seven Years War that made the colonists feel like they mattered more?

Hannah McCarthy: [00:10:45] All right, first of all, seven Years war, global conflict, multiple major powers vying [00:10:50] for land and control in North America. We call it the French and Indian War because, well, that's the part the colonists were involved in. And when all was said and done, Great Britain [00:11:00] had won and they got Canada and the colonists felt like they had really helped out. Not everyone agreed.

Helena Yoo-Roth: [00:11:07] This is the moment when North American colonists are so excited [00:11:10] about being British. They feel so important because they've contributed so much, they think, to the success of the British Empire. Of course, there are different [00:11:20] opinions. Some of the British military commanders will remember the first half of the war, where it wasn't so successful because they blamed the colonists for not supporting the [00:11:30] military enough, not raising enough men, not raising enough taxes, um, smuggling and trading with the enemy. So different memories from the war will come to define [00:11:40] things.

Nick Capodice: [00:11:40] Isn't this also the same time period as when George Washington was feeling real unappreciated?

Hannah McCarthy: [00:11:46] Yeah, and actually, that's a good little microcosmic example [00:11:50] of how the colonists may have felt. George Washington was denied the rank and commission he thought he deserved in the British military as a proper Englishman who had served his country. [00:12:00] But here is what is important for everyone else. What happens during the Seven Years War is that Britain is funding monthly mail [00:12:10] packet ships.

Nick Capodice: [00:12:11] So boats with the mail every month.

Hannah McCarthy: [00:12:15] Exactly their war. The powers back home have to communicate with the military [00:12:20] in North America.

Helena Yoo-Roth: [00:12:21] There is a significant moment at the end of the Seven Years War in 1763, where the British state says, yes, we have been funding these monthly mail [00:12:30] packet ships in order to fight this global imperial war. And we are going to now turn it over into civilian hands, and we are going to continue to maintain it. [00:12:40] And there is this burst of enthusiasm about the possibilities of imperial integration.

Nick Capodice: [00:12:46] Imperial integration, were we not integrated [00:12:50] already.

Helena Yoo-Roth: [00:12:51] When the English colonies are first established? There isn't a manual on how to establish a colony. There is [00:13:00] no big plan. They are throwing spaghetti at the wall and seeing what sticks. And even though Jamestown is now known as the first colony on the North American mainland, [00:13:10] that works. It's not because that's the first colony they attempt. In fact, it is at the long end of a lot of experiments. As a result of that, [00:13:20] there isn't a clear idea of how authority ought to be delineated and even more importantly, how it works in practice. Because [00:13:30] in the 17th century, when communications are even more challenging than in the 18th century, you have sort of [00:13:40] a recognition that local problems are going to be solved by local people as long as the aims of empire are maintained.

Hannah McCarthy: [00:13:49] So it's like, [00:13:50] okay, we took all of this land on this massive continent, and we've got people over there making sure that we can get what we want out of that land. But also, they are way over there, [00:14:00] and we can't talk to them every day or even every month. So as long as they basically do what we want, they can kind of figure the rest out for themselves.

Nick Capodice: [00:14:09] Keep us rich, [00:14:10] keep us powerful, figure out your own problems.

Hannah McCarthy: [00:14:13] But after the Seven Years War, things have changed.

Helena Yoo-Roth: [00:14:22] Especially [00:14:20] after the Seven Years War, there is an effort to reform the Empire because all of a sudden, the British Empire [00:14:30] has just absorbed so many new peoples and territories, and they are at the height of their power. And also [00:14:40] they are so burdened by debt, and they feel like there need to be these administrative changes that are going to help them figure out how [00:14:50] to handle these new people and new territories.

Hannah McCarthy: [00:14:53] It's like Parliament looks up from its desk and says, oh, dang, this is a lot to deal with. We really [00:15:00] need to be in control here. They set their sights on those 13 colonies and [00:15:10] those colonies.

Helena Yoo-Roth: [00:15:11] They always have identified themselves as Englishmen. They've thought of themselves as Englishmen and with the rights of Englishmen. But when [00:15:20] you get to. After the Seven Years War, there were these new reform efforts being made. And there's also a new communication system that's been established in the war. [00:15:30]

Nick Capodice: [00:15:30] These are the mail boats.

Hannah McCarthy: [00:15:31] These are the mail boats.

Helena Yoo-Roth: [00:15:32] These monthly mail package ships do this funny thing because royal governors, in their instructions, [00:15:40] are instructed that they have to write by every opportunity to their Superiors in Whitehall.

Hannah McCarthy: [00:15:47] The royal governors, by the way, were the guys [00:15:50] in charge of each colony appointed by the Crown. And Whitehall at this point in British history was the place with the government buildings in London. [00:16:00] In fact, the British government is still sometimes called Whitehall today. Anyway, the royal governors are now told they have to write to the powers that be [00:16:10] every month, which is a change.

Helena Yoo-Roth: [00:16:14] When there is no official mail system, where there is a monthly system where you have a schedule, [00:16:20] governors can pick and choose when to write, which means they can, within reason, like don't go six months without writing. They'll know. But you [00:16:30] have an opportunity to say, here's a problem that we're facing, and here's the solution we're proposing. And it's not 100% [00:16:40] correct according to the rules that you've laid out in Whitehall, but I think you'll agree that this is a really close fit, and it addresses [00:16:50] local concerns and addresses the big picture. But when you start having these monthly mail packet cycles and you miss one, then the Board [00:17:00] of Trade, which is the governing body in the Metropol that oversees correspondence with the governors, will go to ask, why didn't you write by the June boat? [00:17:10]

Nick Capodice: [00:17:10] All right. This is the end of salutary neglect. Before the Seven Years War, we were kind of allowed to do our own thing, you know, govern ourselves, [00:17:20] check in with Parliament when it made sense. But when that war ended, Great Britain put us on the leash.

Hannah McCarthy: [00:17:26] And for the royal governors, more communication [00:17:30] with the Metropole, aka London, aka the home base of the ever expanding British Empire might not be a good thing.

Helena Yoo-Roth: [00:17:39] So now governors [00:17:40] are being told they have to report everything that is happening by every packet ship. In order to do that, they are having to present more problems without clear solutions [00:17:50] yet. And halfway through surgery, it looks like murder. So the Metropol constantly is being bombarded with news of like, oh my God, things are [00:18:00] getting out of control. And on the flip side, where the royal governors used to have this flexibility and sort of in the the flexibility of the old system before [00:18:10] the packet ships now in the system, they're not able to negotiate with the locals with as much flexibility. And they keep [00:18:20] being told, no, no, no, don't do this. No, no, no, that's not the right way to do it. At the same time that they are also not close enough to actually [00:18:30] get meaningful advice.

Nick Capodice: [00:18:31] It's like bringing in a new boss who doesn't understand just how things work in the office.

Hannah McCarthy: [00:18:37] Yeah, and then that boss doesn't answer you for six weeks [00:18:40] at a time, minimum.

Helena Yoo-Roth: [00:18:44] A governor? S letter could be sitting on a pile of letters on a desk for months in Whitehall, because [00:18:50] what's urgent to a colonial governor might not be so urgent when it's seen from London. But when governors act and they don't follow the rules to the dot, they get in trouble. When they [00:19:00] ask for advice, they don't get answers quickly enough while local time continues to go on, of course. And so they're sort of in this administrative and temporal straitjacket. [00:19:10] It's actually a revolution of rising expectations because there's this promise that communication and integration are possible. [00:19:20] And then the realities. It's not just a technological problem, it's an administrative problem. And it's also because things are almost good enough where colonists can sort [00:19:30] of glimpse at what might be possible without achieving it.

Nick Capodice: [00:19:34] A revolution of rising expectations.

Hannah McCarthy: [00:19:36] Oh, yeah. And we're going to get to that after a quick break. [00:19:40] We're [00:19:50] back. We're speaking with Helena You Roth about [00:20:00] what she calls colonial time consciousness and how it stoked the fires of a revolution.

Nick Capodice: [00:20:06] And just before the break, Hannah Helena said something about a revolution of rising [00:20:10] expectations. Can you get into that?

Hannah McCarthy: [00:20:12] Yeah. So Helena talked about an administrative problem. This big global war is over. The colonists contributed [00:20:20] to the effort in North America. There's a promise, like Helena said earlier, of communication and integration, of feeling, living, being. [00:20:30] Even more British.

Helena Yoo-Roth: [00:20:33] Colonists are practicing their Britishness. They're wearing their Britishness on their sleeves, literally, with the clothes that they wear, [00:20:40] the foods that they eat, and they really see themselves as part of this larger community.

Hannah McCarthy: [00:20:47] And for a long time, for decades and decades, with all that [00:20:50] distance and time and England being distracted as it turned itself into Great Britain, the 13 colonies could feel like they were a part of that community without [00:21:00] worrying too much about how much they really were a part of that community.

Helena Yoo-Roth: [00:21:06] There's this useful fuzziness that when you don't [00:21:10] actually push too hard, where everyone can be happy in their fuzzy understandings and misunderstandings.

Nick Capodice: [00:21:18] Happy in their fuzzy understandings [00:21:20] and misunderstandings. I think anybody could relate to this. So many things feel great and full of possibility. Before [00:21:30] you lay down the law, before you bring in rules and restrictions. It's the expectation of something versus the reality of it.

Helena Yoo-Roth: [00:21:39] You're having [00:21:40] These old colonies. So the colonies in North America, who were established in the 17th century, now having to grapple with the fact that they're [00:21:50] not so sure whether they are being considered as imperial subjects alongside the new imperial subjects, including the French Canadians, who are now [00:22:00] British subjects after the Seven Years War, or native people or people of color, or if they're members of the nation, because they always have identified themselves as Englishmen. [00:22:10] They've thought of themselves as Englishmen and with the rights of Englishmen.

Hannah McCarthy: [00:22:17] And they have acted like Englishmen, [00:22:20] not just in the clothes they wear and the food they eat, but in the way they run things.

Helena Yoo-Roth: [00:22:26] It was the growth and maturation of their local systems [00:22:30] and cultures, such as the establishment of colleges and local bar associations and things like that, where they have more [00:22:40] and more the infrastructure of self-governance.

Nick Capodice: [00:22:43] But after the war, the colonies have less self-governance.

Hannah McCarthy: [00:22:48] And that time and distance, [00:22:50] the thing that had allowed us to be fuzzy and happy, all of a sudden, it's going to be one of those things that makes us feel like we're being choked. Helena [00:23:00] explained that the colonists have this idea of Britishness.

Helena Yoo-Roth: [00:23:05] These colonists, remember, have inherited 17th century ideas [00:23:10] of what it means to be English. So they have these expectations that maybe colonists in different parts of the Empire who have just been absorbed don't. And so [00:23:20] there are these old understandings, these old practices with these new imperial reforms and these new administrative practices. And really, honestly, [00:23:30] too much optimism and too much excitement in a way that can't possibly be satisfied. And it creates what I think of as sort of a [00:23:40] pressure cooker effect.

Hannah McCarthy: [00:23:42] See, unlike the colonies that Britain acquired after the Seven Years War. Like formerly French Canada and formerly Spanish Florida, the [00:23:50] 13 colonies had this long history of being English. They're not like the new acquisitions.

Helena Yoo-Roth: [00:23:58] They fundamentally [00:24:00] share this sort of history of the English Civil War. And then with the restoration and then with the Glorious Revolution, which establishes a [00:24:10] constitutional balance. And this is what makes them English and then soon will become make them British. And it's this idea that they have this protected relationship with [00:24:20] the Crown and with Parliament, and that the colonists themselves see their own local assemblies as little parliaments that they themselves are building on this model. [00:24:30] There are also ways in which they desperately want the approval of the people back home That there is this longing for acceptance, [00:24:40] especially as people are becoming more sophisticated, but people are becoming more sophisticated in part because they go, keep going back to the mother country, that [00:24:50] elites send their children back for education.

Nick Capodice: [00:24:52] So in some ways, just to achieve the Britishness the colonists want, they literally have to get on a boat to [00:25:00] London to get it.

Helena Yoo-Roth: [00:25:01] All of their fashion, all of their news, all of their interests. They are constantly waiting. It is a position of deference in some ways.

Hannah McCarthy: [00:25:09] And of [00:25:10] course, it takes a while for the colonies to shift their perspective, their longing for Britishness. But that's something they can only really get from Britain from [00:25:20] far away. They've mimicked British governance, but now Britain is cracking down with new reforms and new controls.

Nick Capodice: [00:25:28] Stamp acts, Townshend [00:25:30] acts, sugar acts, tea acts.

Hannah McCarthy: [00:25:31] All of which we have talked about in other episodes, which I will link to in the show notes. But the point is, the pressure is building. And remember, [00:25:40] Nick, there are human beings in this story. They want things. They feel confused, hurt, left out. [00:25:50]

Helena Yoo-Roth: [00:25:50] It's emotional. And I think one way I think my work contributes to this literature is by saying, it's not that people's feelings are [00:26:00] hurt because of the way in which power is used against them. Time is used against them. They feel like the deck is stacked against them. They can't participate. [00:26:10] It's not just a problem right now, but that there's something wrong with the system. But this is not sustainable. Maybe it worked before, but it doesn't work anymore.

Hannah McCarthy: [00:26:20] And [00:26:20] eventually the system changes. Helena told me that many historians consider 1774 as the turning point. Britain [00:26:30] was punishing Massachusetts for the Boston Tea Party. It had passed the coercive acts Blockading ports, taking over governance and justice, housing troops [00:26:40] at colonial expense. Boston and the surrounding area became the stage for months of battles between the British troops and the [00:26:50] rebelling colonists.

Helena Yoo-Roth: [00:26:56] You are seeing the British military really on the populace, and [00:27:00] there's this other moment that I think is part of that story that really that awakens the possibility of independence for colonists. [00:27:10] And it's not just the siege of Boston, but its evacuation, where the British military had been starved by the American colonists, [00:27:20] that the siege of Boston has actually starved the military instead, and that all of a sudden, these poorly [00:27:30] fed British military soldiers are having to go back into their ships and leave. And Abigail Adams writes, [00:27:40] you know, in wonder about this. And she says, to what a contemptible situation are the troops of Britain reduced? And so the colonists [00:27:50] really can't believe that the British are really, really retreating. It's this moment where colonists sort of see that they might be able to exist without the Empire, [00:28:00] that the empire is not actually as strong as they imagined. They see it as real people who are themselves overwhelmed and far [00:28:10] from the decision makers. So I think that is a moment where people sort of start realizing that they don't have a great plan. The British, as they're evacuating, don't have a plan. [00:28:20]

Nick Capodice: [00:28:20] Because the people who make the plan are thousands of miles and many weeks away.

Helena Yoo-Roth: [00:28:25] And that is something that I trace, that shifts in this revolutionary [00:28:30] moment where I look at the center of gravity of Communications. There's an amazing line in common sense that hasn't been really [00:28:40] understood enough, I think.

Nick Capodice: [00:28:42] Common sense. I was wondering when we were going to get to Thomas Paine.

Helena Yoo-Roth: [00:28:46] He's 37 years old. He's a mostly bankrupt former [00:28:50] corset maker, shopkeeper, tax collector, schoolteacher, proto union organizer who had advocated for higher wages for civil servants, and a parliamentary pamphleteer [00:29:00] and lobbyist with a recommendation from Ben Franklin and a talent for political writing. He arrives. He quickly becomes the editor of a magazine called the Pennsylvania [00:29:10] magazine, and he's immersed in the vibrant political life of colonial Philadelphia.

Hannah McCarthy: [00:29:15] And Paine writes Common Sense, a pamphlet advocating for American [00:29:20] independence from Great Britain.

Helena Yoo-Roth: [00:29:23] And Paine's point is really simple. He says, quote, to be always running 3 or 4000 miles with a tail [00:29:30] or a petition waiting for five months for an answer. Well, in a few years be looked upon as folly and childishness.

Nick Capodice: [00:29:38] So he's saying, basically, [00:29:40] this is embarrassing. We're not being treated like grownups and we're not acting like grown ups.

Hannah McCarthy: [00:29:48] And to Helena's point, Payne [00:29:50] understands the problem with distance, time, and patience.

Helena Yoo-Roth: [00:29:57] The revolution that Payne demands is not just a [00:30:00] political one or a constitutional one. It's temporal. He's declaring independence not just from British rule, but from British time. And this particular [00:30:10] sentence, the next one that I'm going to read, doesn't make it into the final draft of Common sense, but it really captures the political and psychological toll of living in multiple timelines, he says. A [00:30:20] greater absurdity cannot be conceived of than three millions of people running to their sea coast. Every time a ship arrives from London to know what portion [00:30:30] of liberty they should enjoy.

Nick Capodice: [00:30:32] Wow.

Hannah McCarthy: [00:30:33] Yeah.

Nick Capodice: [00:30:34] Chills. Hannah.

Hannah McCarthy: [00:30:35] I know. You know, when common sense came out, right?

Nick Capodice: [00:30:38] Uh, 1776. [00:30:40]

Hannah McCarthy: [00:30:41] Yeah. But actually, I mean, the day because the specific day matters.

Helena Yoo-Roth: [00:30:47] By late 1775. Pain is not just [00:30:50] writing common sense. The text that we would come to know as common sense. But doing math because pain puts together his knowledge of transatlantic communications rhythms with [00:31:00] the political rhythms of the metropole together to ensure that common sense hits the bookstands in Philadelphia and colonial readers at the right time. [00:31:10] And he has this amazing letter in 1779 where he explains how he did it, and, of course, take it with a grain of salt, because this is looking after the fact. But he says, as [00:31:20] I knew the time of the Parliament meeting and had no doubt what sort of King's speech it would produce, my contrivance was to have the pamphlet come [00:31:30] out just at the time the speech might arrive in America. And so fortunate was I in this cast of policy that both of them made their appearance [00:31:40] in the city on the same day.

Nick Capodice: [00:31:42] Hold on. What speech?

Helena Yoo-Roth: [00:31:44] The thing that arrives on January 9th, 1776, is George II's speech [00:31:50] to Parliament rejecting the olive branch petition and condemning his rebellious subjects. And this news is arriving the very [00:32:00] same day that Thomas Paine's common sense is being advertised in the Philadelphia newspapers. Paine's timed the publication of Common Sense to coincide [00:32:10] precisely with the arrival of the speech, rejecting the petition, and it becomes a deliberate act of revolutionary synchronization, one that forges [00:32:20] an artificial simultaneity between monarchical rejection and revolutionary rebuttal. And in a world where colonial readers are used to waiting, guessing, [00:32:30] and reacting. Common sense reads like a revelation, a response to imperial authority that arrived not months later, but in real time. This [00:32:40] carefully manufactured simultaneity between the king's rejection and Paine's call for independence gives common sense, this really powerful immediacy. And for [00:32:50] colonists who are used to feeling like they're always playing catch up to imperial news, it's electrifying.

Hannah McCarthy: [00:32:59] What pain [00:33:00] does is revolutionary, not just in terms of content. He is merging the timelines. He drops common sense on the very day [00:33:10] that it will have optimal impact. All of a sudden, there is something happening right away. There is something originating in the colonies that has [00:33:20] to do with something that is coming from thousands of miles away.

Nick Capodice: [00:33:24] After 150 plus years of being on a constant delay.

Helena Yoo-Roth: [00:33:29] So in that way, [00:33:30] you know, common sense is more than just a pamphlet. It's a temporal intervention. It sort of names and indicted the lived experience of colonial delay, the endless [00:33:40] cycles of sending petitions, awaiting for replies and living under the shadow of decisions made months earlier in a distant capital.

Nick Capodice: [00:33:48] A temporal intervention. [00:33:50]

Hannah McCarthy: [00:33:51] Yeah. A radical perspective shift. All of this waiting that's running to the coast for stale scraps from the [00:34:00] dispassionate overlords. Thomas Paine says it. It's absurd.

Helena Yoo-Roth: [00:34:06] So there's this moment at which colonists say, [00:34:10] enough is enough. And then there is this sort of the clapback moment that I love is after the colonists have declared independence. [00:34:20] Richard Howe, who is a British commander who has been granted a dual role as naval commander and he's [00:34:30] supposed to be a peace commissioner. He had set off from London in May. He arrives in July off the coast of Staten Island, [00:34:40] aboard a ship called the Eagle. And he hears about the Declaration of Independence. And he's unable to get off of his ship because [00:34:50] he knows that once he sets foot on the ground, he's going to have to address the Declaration of Independence. But the instructions that he got from London when he left May [00:35:00] are insufficient. And now he is experiencing that colonial dilemma where the instructions no longer make sense, and he's going to have to act. And what does he do? And so [00:35:10] he stays cooped up on the ship for weeks trying to figure out what to do. And for me, that is the perfect encapsulation of sort of [00:35:20] the imperial officials at the highest level are now living what it means to be like colonists. The center of gravity of communications. Local [00:35:30] events have overtaken local time has overtaken imperial time.

Hannah McCarthy: [00:35:39] There are [00:35:40] so many versions, so many facets of the story, of how we kept time on our side, how we used distance and delay to our advantage [00:35:50] in the Revolutionary War and beyond. How we became the center of our own universe instead of orbiting around the British sun. But [00:36:00] we also kept that awareness of exactly how powerful the widening gyre is, how things can [00:36:10] fall apart, how the center might not hold.

Helena Yoo-Roth: [00:36:17] American settlers are going to keep moving west, and [00:36:20] their capitals are all on the east where they first established them. So they're going to be wrestling with those questions of time and distance for a long [00:36:30] while. There are ways in which the early Republic really grapples with this question of what will it mean to be a nation whose borders [00:36:40] continue to grow and how will we maintain. And the Post Office is a huge part of that story. That the idea that post [00:36:50] is key, that print culture and newspapers and letters are going to create these ties that bring us together [00:37:00] and keep citizens informed at the furthest stretches. And that tells you something really important about how they're thinking about distance.

Hannah McCarthy: [00:37:09] When you think about [00:37:10] the rising tensions leading up to the revolution, Nick. All of the acts and the taxes and the petitioning and the waiting and the feeling ignored [00:37:20] and left out, you begin to realize that distance and time is silencing you.

Nick Capodice: [00:37:29] Taxation [00:37:30] without representation.

Hannah McCarthy: [00:37:32] Right. It's unconstitutional. Not the American constitution. The British one. It was, as the colonists saw it, [00:37:40] their right as Englishmen to be heard, to be taken into account. It was one of the biggest problems then. And it is one of the [00:37:50] biggest problems right now. Where is the center of power and how much time and space is between [00:38:00] that and the people?

Helena Yoo-Roth: [00:38:02] Do they feel like their voices are heard in the cities where the decisions are being made? How can representatives [00:38:10] really. How does representation work when you have a country that is so large and people have to travel so far? So these are things [00:38:20] that we're going to keep wrestling with in the House of Representatives. How often should a representative be B and d c and how often should they be back home listening to their constituents? It's a problem of representation. [00:38:30]

Hannah McCarthy: [00:38:45] This [00:38:40] episode was produced by me, Hannah McCarthy with Nick Capodice. Marina Henke is our producer. [00:38:50] Dana Cataldo is our digital producer, and Rebecca Lavoie is our executive producer. Music in this episode comes from Epidemic Sound. Helena Yoo-Roth's upcoming book is called American [00:39:00] Timelines, Imperial Communications, Colonial Time Consciousness, and the coming of the American Revolution. Keep an eye out for that one. Civics 101 is a production of [00:39:10] NHPR New Hampshire Public Radio.

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Why Teachers Are Having a Tough Time

This is the first episode in a series we are doing with iCivics, who invited us to their National Forum for Civic Learning Week.

Today we share the many conversations we had with civics and social studies teachers from across the country, and we explore the results from a nationwide survey on what they're going through right now. And, finally, what could be done to help them?

To learn more about iCivics and their myriad resources for teachers and students, visit them at https://ed.icivics.org.

To read about the survey conducted by iCivics, click here.

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Transcript

C101_CLW01.mp3

Archival: [00:00:03] It's that time of year. Millions of students across the country will soon head back to school. But in Texas, the topics students will learn in their social studies classes are under hot debate.

Archival: [00:00:14] Republicans claim in [00:00:15] a new report that some teachers are abusing their role in trying to indoctrinate kids.

Archival: [00:00:19] In fact, Lieutenant Governor Mark Robinson recently formed a task force to look into that. But Democrats say it's really about fear mongering.

Archival: [00:00:26] Parents have a God given right and role in the raising of their children. [00:00:30] When they send their kids to the public schools, they expect the schools to deliver a quality education to their children in order to prepare them for success in the future. Unfortunately, government schools have abused this trust and have been indoctrinating children with far left [00:00:45] lies and poisoning their minds with woke gender ideology.

Nick Capodice: [00:00:50] Hello everyone. Nick here. Today is the first part in a three part series we are doing in collaboration with iCivics. For those of you who don't know [00:01:00] iCivics, they're a nonpartisan organization dedicated to advancing civic learning, but they are so much more. For the last few years, they have invited Hannah and me to their National Forum for Civic Learning Week. The most recent one this [00:01:15] March in Philadelphia was tremendous. We met a ton of teachers.

Jill Lepore: [00:01:20] We are. Oh my gosh. I used your podcast in my class with my, um, my undergrad.

Nick Capodice: [00:01:26] Jill Lepore spoke.

Jill Lepore: [00:01:27] Thanks to all of you for being here and for the work [00:01:30] you do. That is just just a magnificent importance. I want to begin by telling you a story about apple pie.

Nick Capodice: [00:01:37] And we have made episodes about these forms before. Sort of a the kids are all right state of civics education in the [00:01:45] US. But, you know, things are not all right. Yes, some things are. But it would be inaccurate for me to not admit that some folks, maybe most folks when it comes [00:02:00] to civics, politics, discourse, etc. some folks are having a tough time. And that's what this series is about. Why are we having such a tough time? So today, in part one, we wanted to share with you all [00:02:15] what civics and social studies teachers are going through right now. 2026 and I hope some of the ways we could improve their lives and their work. Stick around. You're listening [00:02:30] to civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:02:32] I'm Hannah McCarthy.

Nick Capodice: [00:02:33] And today we are talking about what Hannah and I learned at the Civic Learning Week National Forum. Specifically, what civics and social studies teachers are going through right now. 2026. Where do you want [00:02:45] to start on this one?

Hannah McCarthy: [00:02:46] Uh, let's not bury the lead. I think we should start with opening remarks.

Nick Capodice: [00:02:50] Sure.

Hannah McCarthy: [00:02:52] So Nick and I are sitting in this massive hotel ballroom in Philadelphia. We are the only radio people in the room, and we are surrounded by [00:03:00] hundreds of teachers, heads of civic organizations and students. And Louise Dubé gets on the stage. She is the CEO of Icivics.

Louise Dube: [00:03:11] Welcome. Welcome to Philadelphia, the heart [00:03:15] of all things civics.

Hannah McCarthy: [00:03:16] And after welcoming everyone, Louise starts to talk about a survey.

Louise Dube: [00:03:21] About a couple of months ago, we sent you a survey to ask you what it's like to teach civics right now in this country. And [00:03:30] about 2200 of you answered the call.

Nick Capodice: [00:03:33] Yeah. So this survey is the reason I wanted to make this episode.

Louise Dube: [00:03:37] About 35% of you reported changing or removing lessons because of the climate in their school [00:03:45] or community. Almost 60% worried about experiencing backlash. 53% said even teaching Basic civic concepts are difficult.

Nick Capodice: [00:03:59] And the most [00:04:00] difficult to me at least. Result from this survey was the answer to this question. Have you considered leaving the profession, leaving teaching due to the divisive environment?

Hannah McCarthy: [00:04:11] And how many said yes to that 21%? [00:04:15]

Nick Capodice: [00:04:18] So we met up with Luisa afterwards and we asked her what these results meant to her.

Louise Dube: [00:04:23] What was interesting about the response is that it validates a lot of other research to the [00:04:30] effect that it is a very hard time to be a civics educator in this country, and I think that's a consequence of the polarization in our communities, and not only polarization, even in a community that's predominantly [00:04:45] has one point of view or the other. There is a vocal, either majority or minority, that has found the schools to be a place where these discussions are to be had or not had. The educators [00:05:00] have told us that about 60% of them are afraid of backlash. What's interesting about that is that it is actually worse in states where they have passed legislation prohibiting or shaping [00:05:15] the kind of instruction that can happen in those states. It should be, in fact, clearer, but the teachers are actually feeling worse.

Hannah McCarthy: [00:05:36] So states were these so-called divisive concepts. Laws are on the books, laws designed to regulate exactly what teachers can [00:05:45] and cannot teach in their classrooms. Teachers in those states fear backlash even more.

Nick Capodice: [00:05:51] They do.

Louise Dube: [00:05:52] It sets up an environment where I think teachers are feeling like they're not quite clear. Where is that line? What can I say, what can't [00:06:00] I say? And who among parents will interpret these laws differently? Right. The other thing that was truly raised, my eyebrows had to do with the lack of support from the community or parents. So today in our conversation [00:06:15] with the state chiefs, they said how important it is to have parent support for history and civics education. That's an critical component of our being able to do this work. In our survey, we found that [00:06:30] that is in fact not the case. So that educators are quite worried whether parents support them.

Hannah McCarthy: [00:06:37] So how much of the fear of backlash is tied to parent support versus lack of support from the school administration?

Nick Capodice: [00:06:45] Yeah. [00:06:45] The respondents overwhelmingly said they feel prepared to teach civics. They feel supported by their Either administration, but less than half said they are supported by parents, and 39% of that half say that that support is [00:07:00] neutral.

Hannah McCarthy: [00:07:00] As in even of those who feel, quote unquote supported, 39% of them don't feel strong, warm support. Right, right. So I want to go back to that pretty staggering number, 21% [00:07:15] of civics and social studies teachers saying they have considered leaving the profession. Did Louise have any sense of what might be causing that?

Louise Dube: [00:07:25] Well, I don't know that I can shed much more light, except that this is a trend. Right? Uh, ever [00:07:30] since Covid, I think you've seen a mass exodus of longtime educators. But then after that, the divisions that Covid really exacerbated in the communities, some of them have gone away and have, you [00:07:45] know, some of the civic fabric has come together in some communities. But I think Ultimately, when teachers tell us that even teaching basic civics is considered controversial, it's not surprising that people say, okay, you know what? Done this [00:08:00] for this many years, I've had enough. Um, and there are and I feel terrible about that, right? Because educators should be safe in teaching about our country always.

Hannah McCarthy: [00:08:10] So what can we do? How can you know, we the people [00:08:15] help the people who are teaching our kids?

Nick Capodice: [00:08:18] I have a few thoughts to share about this. And a lot of them come from teachers themselves that we talked to in Philly, which we're going to get back to right after a quick break. We're [00:08:30] back. You're listening to civics 101 from NPR. And we're talking about teachers with teachers.

Hannah McCarthy: [00:08:37] Nick and I walked around with a microphone for a few hours, asking anyone who was willing to share what it's like in civics classrooms [00:08:45] in 2026, what they wish everyone knew, and what would help them in this moment.

Nick Capodice: [00:08:52] And we wanted to share their thoughts with you. So here we go.

Teacher 1: [00:08:55] And you can use my information, my name, my voice. Yeah. If it sounds [00:09:00] better putting me in auto tune, please do so now. Like if you need a little John me up, that's fine.

Hannah McCarthy: [00:09:06] Have you had to change anything about the way that you approach teaching in the past 5 or 10 years? Yes.

Teacher 1: [00:09:13] So I've had to I've [00:09:15] definitely have had to change the way that I approach teaching. I mean, yes, just alone in terms of strategies. But I would also say content wise too. I'm absolutely switching things up. I have to be really thoughtful about the word choices that I use because some languages become politicized. When ten, 15 [00:09:30] years ago, it wasn't considered political to use certain phrases. Now it has. So I have to be really thoughtful about that. And I walk through topics pretty carefully. I feel like sometimes I'm in a minefield.

Teacher 2: [00:09:42] I think I've had to change a few things. I've had to [00:09:45] consider more. What the community, what people will think or what they might think, or how they could perceive what I'm doing in my classroom. So I've had I've had to think more about it. I don't necessarily [00:10:00] think that's 100% a bad thing, though, because it made me think more about it and maybe come up with more unique ways to approach things rather than just throw out a topic and debate it, but maybe have them, uh, take some time to [00:10:15] research what different people think about it. And not just not just pit them against each other. Maybe come up with some solutions in the middle sometimes. Yes. I have one time been called down to the principal's office because of an incident, [00:10:30] uh, where parent was not happy with something I was doing, but it was more of a misunderstanding that went home and my principal was very supportive of me. I can tell you what happened. So it [00:10:45] was right after the election of 2016 and Donald Trump was elected. And right after that, we were studying the Electoral College.

Teacher 2: [00:10:54] And this was a point where Kanye West, before, [00:11:00] he said. A lot of the things that he has said since then was saying, I was going to run for president, and right then he was just a musical artist and whatever. So I said, okay, if Kanye, what states would Kanye have to win to flip in order to get, uh, [00:11:15] in order to win the presidency? Well, that got home as that. I was already talking about getting Donald Trump out of office and, and wanting Kanye to be president and that he was just elected. I'm already talking [00:11:30] about him leaving, whereas I just picked I heard some kids talking about Kanye West. So I said, well, what states would he have to flip in order to win? So that's where it's a communication thing. And I was brought in and we had a discussion and the principal let the [00:11:45] the mom talk and let her have her say and it was a good, good result. It was a good result. But, uh yeah, so I have been on the hot seat before.

Teacher 1: [00:11:58] In all fairness, [00:12:00] I don't know that I get immediate external pressure from any one person. Definitely not my school administration. They're really wonderful to work with and have been nothing but supportive. Um, in truth. Um, but one of the things that I have noticed [00:12:15] is I think I'm just being extra precautious for fear of pushback, if nothing else, right? It feels like educators are seeing in the media stories of people at school board meetings and, um, social [00:12:30] media blowing up over teacher A or teacher B, you know, teaching some lesson or taking something out of context. And so I'm putting maybe those handcuffs on myself in a way Away without having the [00:12:45] immediate pushback yet, because I'm afraid of the pushback. In all fairness.

Teacher 3: [00:12:51] My school district, even though I'm in a blue area in a red state, um, I really have autonomy to kind of say and do what [00:13:00] I want, but I think it's a, I'll be honest, I think it's a personal thing. I think I've just become so conscious because of the current climate, to make sure that I'm not stepping on somebody's toes. Because even when I look at the teacher, I was, I hate to say [00:13:15] this pre Covid and post Covid, they're a little different. I am more comfortable, but I'm also a little bit more reserved in how I deliver the content. I think a part of it was [00:13:30] I was just bold and young and didn't care then. And now it's just like, oh, okay. You got to kind of pay attention because this is this is our reality.

Teacher 4: [00:13:42] It's kind of like, um, asking [00:13:45] to be, uh, teach nine over 11 so we don't start school until right around Labor Day a little bit after Labor Day. So it's like, boy, let's start. Welcome back students. We're going to talk about this traumatic event that happened when I was a senior in high school. Like they need context to understand that. So I'll [00:14:00] end up teaching it later on in the year. So it's tough when, you know, we haven't gotten to that in our curriculum. And the kids want to talk about these current events that are happening around the world. And it's they don't have the background just yet. So they need the basement before we, you know, put the roof on, as my dad would say, [00:14:15] but it's a lot. And then listen, that might be on a Tuesday. On a Wednesday, something else could change. And they have total they're so curious. I get I love that about them, but it's like, oh, that curiosity is, is not [00:14:30] derailing the curriculum, but it's forcing me to take more time to talk about it. For example, with the recent crisis in Iran, kids are, you know, not only am I trying to teach them where Iran is, but it's also like, okay, they need a little primer on the history. How he got to this point. [00:14:45] And then we can start taking questions about executive powers and congressional authority. So it's a lot to unpack, and that's on top of the curriculum that we're already, you know, doing and teaching. So it's a lot, it's, I would say it's exhausting. It's good work. Um, but it [00:15:00] is exhausting.

Hannah McCarthy: [00:15:01] So that's really our question is, have you had to change anything over the past however many years?

Teacher 5: [00:15:06] Yeah. That's interesting. Um, you know, in a lot of ways. No, I will say that, which is, which is fascinating, but you know, it's, you know, emotionally speaking, [00:15:15] like we have children that come from very diverse backgrounds and they have families that came here for various reasons, and they came here in various ways. So that has certainly affected us. Um, you know, with the administration and policies on immigration and Ice. [00:15:30] And we, we lost, we seem to have lost families and children. They would have been enrolling in our school this year. We lost a lot of kids. They didn't come back. But the way that I teach, you [00:15:45] know, I try to be as unbiased as I can at certain times. And then I also feel like I can use emotion in the classroom and be genuine and just say, hey, this is my bias. Um, so it certainly made it harder. [00:16:00] The political climate, but it really hasn't changed as much as I would think.

Teacher 3: [00:16:06] We all go through education preparation programs. Some may do alternative routes. And those of us that love our job and love what we do, number one, [00:16:15] we're not going to jeopardize our livelihood. I have too many student loans to jeopardize my career. Like there's just nothing else that I can do or want to do but teach students. Um, number two, I'm just the type of educator [00:16:30] and I think most of us are going to treat these children how we want somebody to treat our kids. And so we wouldn't want anybody indoctrinating our kids. So we're not going to do that to someone else's.

Hannah McCarthy: [00:16:41] What would you want parents to know about what it's like in your classroom?

Teacher 2: [00:16:46] I [00:16:45] think they should know that I make every effort, every day to give kids all sides of an issue if we're talking about it. I go out of my way to make sure they understand what [00:17:00] people's perspectives are, because I think that's what's interesting. I like them to understand both sides. I am not going to try to indoctrinate them. Uh, I've tried to indoctrinate them to remember [00:17:15] to bring their iPads and pencils, and that hasn't happened. Every day I think about that, I think about making sure they see both sides of the issue. And when we're doing discussions and debates, [00:17:30] and that's what I see most teachers doing. And I must say for the most part, parents are very, very supportive of what I'm doing when they come to Back to School night. I tell them about what we're doing and [00:17:45] they're like, oh, I wish I, you know, could have done that when I was in school. So for the most part, parents are very, very supportive, but it only takes one.

Speaker 16: [00:17:54] What's one thing that you wish that parents knew about what it's like in your classroom?

Teacher 5: [00:17:59] That I wish they [00:18:00] would come by and say hello more. I've never had a bad interaction with a parent my entire teaching life, ever. Only positive ones. Um, and you know, they're busy. They got a lot of stuff going on. Um, but it's just in our community, parents care very deeply, but there's just not a lot [00:18:15] of involvement because of challenges that they face. Um, so I don't know, I just invite them to come in and hang out and watch. And I could ask them about their experience because I'm sure they have a lot more to say about things like racism than me.

Teacher 1: [00:18:30] Well, [00:18:30] like in all fairness, guys, so and I don't post it on my bio or anything, but like, I was just appointed by the governor of the State Board of Ed and the only teacher there. And right off the bat, we're having a great conversation about, you know, graduation [00:18:45] and what its diplomas and how many credits students need. And I'm walking in going, wait a minute, what about how many classes a teacher can teach? And what about making sure the teachers have the professional learning to be able to teach the courses? And in small schools, that might be really [00:19:00] challenging to recruit those teachers. And and in rural areas, how are we going to get a teacher over there to teach X? Like that's very fundamental into what the work is. And so how, how do you how, how do we keep teachers in the classroom [00:19:15] when you have all of these other layers on top that make it really challenging to do your job? Unfortunately, the current model that we're using for education is not one that in terms of the amount of days we have in the calendar and how this is all built, um, doesn't meet the [00:19:30] need of the current teacher and the current students. So, um, it isn't as much of a pay raise, although that's always lovely for folks on more vacation days, right? All of these types of things and better health care, please. Yes. But I think the system [00:19:45] needs some major shifts, and it hasn't caught up to the kid and the teacher that exists in 2026. Oh, and by the way, you know, political climate that is questioning public education and sorry, can you fix [00:20:00] that?

Nick Capodice: [00:20:05] Last thing before we go. After asking all these teachers about what they're going through and what they need. I asked Louise what is really [00:20:15] driving this difficulty.

Louise Dube: [00:20:18] There is a sense, not a sense, but a fact that public trust in institution in general and mostly towards your neighbor has deteriorated significantly. However, [00:20:30] we've gotten here, clearly we have a lack of trust. Having said that, I think K-12 is one of the last standing major scale institutions to have at least respect [00:20:45] at the local level. So you can ask folks about whether they believe in public schooling or whether they think schools are any good. Uh, and they will answer fairly negative answers. Not so much. However, you ask them about [00:21:00] their local school. Oh, I love my local school, I love this, I love Mrs. So and so and so and so. It is important to note that and not to give up on, uh, or K-12 education.

Hannah McCarthy: [00:21:13] Did Louis say anything about [00:21:15] the future of civics education? What needs to be done to make it better?

Nick Capodice: [00:21:20] Well, of course, she said to listen to the teachers needs to ask them what would help them right now. That's why they do these surveys, but also that civic learning has to be [00:21:30] pluralistic. It has to have diverse perspectives.

Louise Dube: [00:21:34] So we strongly believe that a democracy cannot be fixed by having one set of folks beat up on the other and win. Right? So there's a, um, so it depends what [00:21:45] your operating model is. But for us, that's not our operating model. Our operating model is what is in research for more in common and many other research organizations where there is actually a lot of common agreement about how [00:22:00] to solve our common problems. The problem comes when you think that the other guy is just pure bad, right? And what we want to do is to ensure that students are not told what to think. We need to have a classroom [00:22:15] in which there is a range of ideas, a range of primary sources, and students are given the skills to determine what truth is and to find what they believe. Ultimately, it's not our job to tell them what they should believe. [00:22:30] It's our job to present a pluralism in action, which is means a diverse set of viewpoints on particular issues and teach them the skills of how they might make [00:22:45] something out of that, like for themselves, for their lives.

Nick Capodice: [00:22:50] And also civic learning has to engage in reflective patriotism.

Hannah McCarthy: [00:22:56] You know, I heard that expression used a few times at this forum. [00:23:00] What is meant by reflective patriotism?

Louise Dube: [00:23:04] I think it's a real problem when patriotism is identified with one party or another. Right. And right now, that is the way it is, right? So it's coded red. And um, it, it's [00:23:15] a problem because I think that all of us, uh, if we're going to teach about civics, we're going to teach about the American self-governance system. And that's a process that involves, uh, citizens getting involved [00:23:30] in how we run our country and how we solve our common problems. And that is a patriotic act. And I think we want to be very clear about that. And I think what we want to do is to have a reflective [00:23:45] patriotism, which is one in which we take a balanced view of our countries. We look at what we've done well, and we look at what the places where we need to learn and grow. And that is why we have a more perfect union. That is what the [00:24:00] founders had in mind. They never had in mind that we would just declare victory and say, we're all great. They had in mind that we will continue to improve and do better. And in order to do that, we need to talk to each other. We need to learn from [00:24:15] each other, and we need to solve our problems. I think part of the distrust that people are feeling about this country is that we don't actually solve the problems. Right. There are problems on the table, very little legislative action. All [00:24:30] branches are not acting equally. Never. Having said that, there's a lot of activity at the state level. So that is where local and state levels is, where we are much more optimistic that there will be a rebuild [00:24:45] of trust so we can solve our problems.

Nick Capodice: [00:24:56] Just a few things to work on, all of us. This [00:25:00] episode is made by me, Nick Capodice with you, Hannah McCarthy in collaboration with the fine folks at iCivics. Our staff includes producers Marina Henke and Dana Cataldo, as well as our executive producer, Rebecca LaVoie. Music in this episode from blue Dot sessions, Epidemic Sound [00:25:15] and the always pluralistic Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio.

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What did the world really think about the Declaration of Independence?

For Americans today, it's a treasure. Scripture. The thing that made us. It wasn't always that way, though. This is the story of the Declaration of Independence before it was enshrined in our collective national consciousness. Back when it was a news headline and we had no control what others thought of it.

Our guest is ⁠Emily Sneff, author of When the Declaration of Independence was News.

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Transcript

Hannah McCarthy: [00:00:00] This is Civics 101. I'm Hannah McCarthy.

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

Hannah McCarthy: [00:00:04] Nick, imagine you need to drop some major news. The [00:00:10] biggest thing you have ever told the world. But the minute it gets into other people's hands, you have no control over it. They're [00:00:20] going to take it and run with it, and they're going to decide what it means, and they're going to play it up, or they're going to use it to tear you down.

Nick Capodice: [00:00:29] See? See, [00:00:30] this is why I am neither a politician nor a celebrity, Hannah, because that sounds terrifying. And that is what always, always happens. [00:00:40] It's like less of a imagine this and more of a duh, vulnerability at your own risk kind of thing. The internet is a hall of [00:00:50] funhouse mirrors.

Hannah McCarthy: [00:00:51] Yeah, well, 18th century news consumers, they're just like us.

Emily Sneff: [00:00:56] In terms of misinformation. When the declaration first [00:01:00] arrives in London before it's printed in London newspapers, like the first week of August, when the news is there that the declaration has arrived. It's [00:01:10] not called a Declaration of independence. It's called a declaration of war.

Archival: [00:01:14] Colonies.

Archival: [00:01:15] They're now called the United States, sir.

Archival: [00:01:18] We will now all hang together, [00:01:20] or most assuredly, we will all hang separately.

Archival: [00:01:23] Why do you refer to King George as a tyrant? Because he is a tyrant. [00:01:30]

Hannah McCarthy: [00:01:36] This is Emily Sniff.

Emily Sneff: [00:01:38] I am an early American historian, [00:01:40] consulting curator and author of When the Declaration of Independence was News.

Hannah McCarthy: [00:01:45] Emily just published a book that takes us into the media and social maelstrom before [00:01:50] and after the release of the Declaration of Independence, before it became a gleaming relic signed by America's heroes before it had a legacy of any kind. [00:02:00] Like when Londoners got their hands on it and were like, oh no, these little brats are gonna get what's coming.

Emily Sneff: [00:02:07] And the Continental Congress did not think of this [00:02:10] as a declaration of war. They had been at war for 15 months. And, you know, the king had declared them to be in rebellion. A declaration of war [00:02:20] also means something within the law of nations. Like, if you declare war, you're supposed to make them aware that you have declared war against them. So just that phrase [00:02:30] and that sort of titling has all these implications that I think impact how the text was then received when it was printed in the London press. [00:02:40]

Nick Capodice: [00:02:40] That would not be great. That's some sneaky business.

Hannah McCarthy: [00:02:43] Especially when you decide to let the cat out of the bag before you actually have a solid plan for, you know, being [00:02:50] your own country at war with the most powerful military On planet earth.

Emily Sneff: [00:02:57] You know, right up until July [00:03:00] 1776, independence was not a foregone conclusion. There was still quite a lot of disagreement about whether and when independence should happen [00:03:10] within the Continental Congress. There are delegates who are remembered as being against independence, but I think they're actually against independence first, [00:03:20] because independence was intertwined with confederation and foreign treaties. So the idea of tearing down something without a substitute [00:03:30] in its place, like, you know, not having any connection formalized among the colonies and not having an ally like France, you know, on board was really challenging [00:03:40] for a lot of people at the center of the story of the declaration, but also more broadly.

Nick Capodice: [00:03:48] You know, when Emily puts it like that, [00:03:50] it actually makes the doubters seem pretty reasonable.

Hannah McCarthy: [00:03:54] Right? You would probably want to have some solid diplomacy and PR in the works before you [00:04:00] assert yourself as a brand new nation breaking off from Great Britain.

Nick Capodice: [00:04:04] Actually, that's a good point. When we did this, did everyone. Okay, maybe not Great Britain, [00:04:10] but did everyone else say, there they are, the United States of America?

Emily Sneff: [00:04:15] Not as soon as the Continental Congress would have hoped. One of the chapters in my [00:04:20] book is about Silas Deane, who was Congress's agent in France, and Silas Deane has a horrible time the fall of 1776, [00:04:30] because the Declaration of Independence is spreading all around him in the popular press in Europe, and he has yet to receive a copy from the Continental Congress. [00:04:40] He doesn't know that they tried to send one to him. It was thrown overboard to prevent being intercepted by the British. They sent another one, but much later. So [00:04:50] he ultimately doesn't get the declaration from them directly until November, by which point it had become an old story in his words. And so this [00:05:00] issue of like the sort of diplomatic shortcomings in communication for the Continental Congress means that even though the declaration uses the language of [00:05:10] free and independent states, in European newspapers and in all of the diplomatic correspondence, no one is calling the colonies the United [00:05:20] States of America. They're still the colonies for quite some time, and then they're slowly in France and then in the Dutch Republic and among other folks, there's [00:05:30] increased usage of states rather than colonies. But it's much more delayed than I think the Continental Congress probably assumed. [00:05:40] As soon as the declaration is out there, we have a new name in the world. We will be the United States of America. And that is not what happens.

Hannah McCarthy: [00:05:52] Silas [00:05:50] Deane, by the way, the one who is in France trying to make sure we have France on our side. When he finally does get a copy of the declaration, [00:06:00] he's like, come on, guys, paper. This is bush league.

Emily Sneff: [00:06:05] And Silas Deane says this to them that the courts of Europe demand more [00:06:10] formality. So when he gets a paper copy of the declaration, he's thinking, you know, it could have been on parchment, it could have had a seal, it could have had some gold thrown on [00:06:20] it. Like we have to stand up against the courts of Europe.

Hannah McCarthy: [00:06:23] Meanwhile, even in the United States, Congress's message did not look the same everywhere it appeared in print. [00:06:30] The declaration was published in newspapers with typos, sometimes with words missing, different formatting, different fonts. And this is a nation, even at this point [00:06:40] of many languages. So it's printed in translation as well, which is art as well as science. Translation can be and often is interpretation. Oh, and [00:06:50] Nick, have you ever thought about the fact that when it was first printed, barely anybody, and certainly not the public, knew who was going to sign the Declaration of Independence?

Nick Capodice: [00:06:59] What [00:07:00] do you mean, who was going to sign it? The declaration is the whole reason we call a signature a John Hancock.

Emily Sneff: [00:07:06] We tend to, in the history of the Declaration of Independence, [00:07:10] prioritize the signing that the signers are the most important people, and the signing is the most important act. Second to that would be [00:07:20] the drafting and the drafters. And of course, Thomas Jefferson as principal author. And all of that is informed by the fact that the parchment copy of the declaration [00:07:30] is on public view and is a, you know, regularly used visual, you know, that visual is very identifiable for people. And we [00:07:40] know who the drafters were, and we know what Thomas Jefferson's rough draft looked like. None of that existed in July 1776.

Hannah McCarthy: [00:07:49] The Dunlap Broadside, [00:07:50] the first printing of the declaration for Public Distribution. It only has two names on it, and yes, one of those names is John Hancock. But it wasn't [00:08:00] John Hancock. John Hancock. It was not his signature. It just says in typeface. John Hancock, president and Charles Thompson, secretary. The [00:08:10] signing did not start until August 2nd of 1776.

Nick Capodice: [00:08:15] Right. I actually knew that about the signing. I've told people that it's just when [00:08:20] I think about the declaration, I think about all of those signatures. I think about that piece of parchment on display at the National Archives.

Hannah McCarthy: [00:08:29] Yeah. And that is [00:08:30] the famous classic image that comes to mind for a lot of people. But in July of 1776, the public did not see that, which to [00:08:40] me reveals the evolution of the declaration from news bulletin to precious document.

Emily Sneff: [00:08:48] And that's an important part of its story because [00:08:50] the signed parchment, it doesn't reflect the men who voted for independence itself on July 2nd, or who voted for the declaration on July 4th, or [00:09:00] even the men who were in the Continental Congress on August 2nd when signing began. It's an amalgamation of people who were there, but also people who came back [00:09:10] after having been in their home colonies, and people who joined the Continental Congress after the Declaration of Independence.

Hannah McCarthy: [00:09:18] And going back to what London [00:09:20] chose to do with it.

Emily Sneff: [00:09:21] The most common manipulation of the declaration in London newspapers was simply censoring the words [00:09:30] for King tyrant. You know, just very light censorship. Just, you know, the whole document is about the king. You can't really get away from it. But at least eliminating [00:09:40] those words. One particular newspaper in London, the Saint James's Chronicle actually changed all of the pronouns in the list of grievances [00:09:50] to it. So instead of he has the declaration read, it has. Now, whether it was Parliament [00:10:00] or the British government at large or all of Great Britain. Very unclear. The process to change all those pronouns would have been very convoluted [00:10:10] and time consuming. So it took some real effort on their part. But that was the strategy for sort of avoiding any implications of, you know, sedition [00:10:20] or printing something against the king by literally changing the text and actually giving us something that, you know, might resemble what the Continental Congress [00:10:30] could have done, you know, by actually blaming Parliament and the British government rather than the king personally.

Nick Capodice: [00:10:36] Hang on. Blaming the king was hugely important to the [00:10:40] declaration, the grievances. Hannah. The grievances are like the whole thing.

Hannah McCarthy: [00:10:44] And not something most British newspapers were interested in risking the printing of.

Nick Capodice: [00:10:49] So British [00:10:50] audiences are reading a declaration of war that avoids mention of the King. This is a total misrepresentation of [00:11:00] the message.

Hannah McCarthy: [00:11:00] Which is not to say, Nick, that the message totally failed to resonate outside of the U.S..

Emily Sneff: [00:11:06] Whereas the rest of British newspapers, by and large, printers [00:11:10] are exerting the text or printing it alongside misinformation, or just kind of presenting a story that is very far from what the Continental Congress would have intended [00:11:20] for an international audience in Ireland. That's still all happening. They're copying from London newspapers, but we see more examples of commentary that [00:11:30] is positive, or at least framed in the sense of the king forced them to this point. And I think that's interesting in terms of the long fight [00:11:40] in Ireland for rights that run sort of parallel to the 13 colonies. So that's where you really see at least hope [00:11:50] that independence might succeed. Whereas in the rest of Europe, it's much more sort of assuming that [00:12:00] the British will win and probably soon based on how things are going for the Continental Army.

Nick Capodice: [00:12:09] Yeah, things were not [00:12:10] going great at this point. What were other countries thinking in terms of the war itself, by the way? Because if Europe isn't looking at us [00:12:20] as the states, at least not at first, does this mean that people think we're going to lose this thing.

Emily Sneff: [00:12:25] Among the courts of Europe? There's not a ton of optimism, [00:12:30] at least in 1776. There's still a sort of belittling of this rebellion and not treating it as a new [00:12:40] sovereign nation, making its appearance on the world stage.

Hannah McCarthy: [00:12:43] And Nick, while we don't necessarily have to call it a project of fits and starts, the Declaration of Independence was [00:12:50] not even the first, well, declaration of independence that Europe had seen from the colonies.

Nick Capodice: [00:12:58] Say what now?

Hannah McCarthy: [00:12:59] I'm gonna [00:13:00] get to that after a quick break.

Nick Capodice: [00:13:13] We're [00:13:10] back. We're talking about the Declaration of Independence, back when it was a message from a brand new country that may or may not have [00:13:20] stood a fighting chance. Hannah, before the break, you said that the declaration was not even the first declaration. What [00:13:30] do you mean?

Emily Sneff: [00:13:31] There's documents and sort of, you know, ideas that are spreading that people are like, oh, is this it? Is this the declaration? Do we have to wait? Like, when's it going to happen? [00:13:40] Internationally, certainly, there was anticipation that a Declaration of Independence was coming.

Hannah McCarthy: [00:13:46] Nick, what do you know about the May 15th resolution? [00:13:50]

Nick Capodice: [00:13:50] Uh not much.

Hannah McCarthy: [00:13:53] So in early May, John Dunlop. John Dunlop of the Dunlap Broadside published news of German mercenaries [00:14:00] headed to join the fighting in North America. And just a little reminder that we were already in armed conflict with Great Britain at this point, though at this stage, of course, [00:14:10] we are still technically a part of Great Britain.

Nick Capodice: [00:14:13] Hold on. German mercenaries. Are these the Hessians?

Hannah McCarthy: [00:14:17] They are at King George the Third. Had [00:14:20] a German prince cousin from Hesse-Kassel who decided to send him a lot of backup anyway. Dunlap informs his readers that George is sending [00:14:30] tens of thousands of mercenary soldiers. Now, this is not much more than a rumor at this point, but it would turn out to be true. And [00:14:40] this is after, by the way, the King has rejected the colonists olive branch petition and declared them to be in open rebellion. This is after Thomas Paine's Common [00:14:50] Sense had been published.

Nick Capodice: [00:14:51] All right, I'm with you here. Hessians at the door. King George is letting us down. Paine's got everyone riled up. Et cetera. Et cetera.

Emily Sneff: [00:14:59] Then, [00:15:00] in May of 1776, the Continental Congress issues a resolution calling for new representative governments in each of the colonies. And that resolution, [00:15:10] the preamble for that is the first time that the Congress blames the king for what the colonists are dealing with. And that resolution is [00:15:20] perceived by some people in the Continental Congress and outside of Independence Hall as a Declaration of Independence. John Adams remembers. It was, you know, all but a formal [00:15:30] declaration of independence.

Nick Capodice: [00:15:32] Why did I not know about this, John Adams himself saw it as a declaration of independence.

Hannah McCarthy: [00:15:41] Well, [00:15:40] he knew it wasn't enough. As Emily explains in her book, only 12 of the 13 colonies were actually represented when the resolution was [00:15:50] voted on. Also, Adams preamble calls us the colonies.

Nick Capodice: [00:15:55] Yeah, but all this to do about calling out King George in the Declaration [00:16:00] of Independence. And we had already kind of done it.

Hannah McCarthy: [00:16:04] Well, to me, looking at how American independence was rolled out, it sometimes feels [00:16:10] closer to a soft launch than it does a single, isolated, carefully coordinated political PR move. Independence didn't happen once, and [00:16:20] in one place we were gesturing to it, testing its waters, watching to see what Great Britain was going to do. I mean, the fact that George the Third had effectively [00:16:30] rejected us, that was to some people, his declaring us independent.

Nick Capodice: [00:16:36] Even so, Hannah, the capital D capital I declaration [00:16:40] of independence was a huge deal. I mean, didn't people get super excited, take to the streets?

Hannah McCarthy: [00:16:48] Oh, yeah. Plenty of people did. [00:16:50] Not everybody though.

Emily Sneff: [00:16:52] The stories that get reported are, of course, all celebratory about the Declaration of Independence. Public readings with hundreds and [00:17:00] thousands of people shouting huzzah! Cannons firing, tearing down the symbols of the king. You know, that's what gets in the newspapers. We see less of the [00:17:10] perspective of people who are not so pleased about independence, but they certainly were out there. One of my favorite stories is from a teenaged girl [00:17:20] on the island of Nantucket. Her name was Keziah Coffin. And when someone brings the declaration from Cape Cod over to Nantucket, she reads [00:17:30] it and she says it's horrible. And she wishes that the Continental Congress and all of their supporters had been hung 50ft in the air before they had been allowed [00:17:40] to issue this document. You know, she's a teenager and and she understands the political stakes of this moment.

Hannah McCarthy: [00:17:48] And, you know, okay, sure. That [00:17:50] is a loyalist perspective. But as Emily told me, it wasn't always as simple as pro-independence or pro-monarchy.

Emily Sneff: [00:17:58] There's this political spectrum that is [00:18:00] much more complex than loyalist patriot. There are a lot of people, and I think this is a very relatable position who just want to continue living their [00:18:10] lives as they had been. And so any change, whether it's independence or reconciliation with Great Britain, they're thinking about like, what does that impact my family, [00:18:20] my farm, my business, you know, commerce, my church.

Hannah McCarthy: [00:18:25] Which is, I think, something that plenty of American voters can relate to today. [00:18:30] When it boils down to it, are you making your political choices based on what's good for everybody? Are you making decisions based upon sweeping [00:18:40] ideals, or are you thinking about how the results are going to affect you and your family?

Emily Sneff: [00:18:47] That's where their minds are. They're not thinking so [00:18:50] much in terms of, you know, super radical support for independence or, you know, diehard support for the king. And I think that that, [00:19:00] you know, perspective is something in the lived experience of the Revolutionary War that we tend to lose sight of being in the Philadelphia area. A lot of people [00:19:10] were able to remain sort of ambivalent until the war comes here, and then they're forced to make decisions about whether or not to support one [00:19:20] side or the other, whether to associate to be part of the actual fight for independence or not. But up until that point, they really just kind of want to hang back [00:19:30] and not, you know, claim support either way.

Nick Capodice: [00:19:36] I mean, I guess that's smart, isn't it? Hedging your bets a little bit. [00:19:40] And as you said, Hanna, we are fighting with the most powerful empire on planet earth. Independence was not a guarantee [00:19:50] just because we had declared that we have it.

Emily Sneff: [00:19:54] And there are also people who think independence might be temporary and not permanent. [00:20:00] You know, the Continental Army is not looking so great in the summer of 1776. And so there are people, you know, in particular, I have a chapter in the book about Anglican ministers [00:20:10] who swore an oath at their ordination to the authority of King George the Third, not only as a political ruler, but as the head of the Church of England. They're [00:20:20] not necessarily willing to go against that oath for something that might just be a temporary political change. So when the Book of Common Prayer is altered [00:20:30] and prayers for the King are changed to prayers for the Continental Congress or the provincial governments, some of those ministers feel obliged to shut their churches or, you know, leave their congregations [00:20:40] rather than change for what might be a momentary blip in the otherwise, you know, long history of the British Empire.

Nick Capodice: [00:20:51] That's [00:20:50] really a sobering idea. I mean, I say that, of course, as an American, as a citizen of the country, that one, but [00:21:00] that this all could have been a blip. And you don't want to be on the wrong side of that blip.

Hannah McCarthy: [00:21:05] And it is only because it was not a blip, only because [00:21:10] we did win that the Declaration of Independence is this sacred American text, because even those who celebrated it in 1776 [00:21:20] had no idea whether it would stick. And they had other things to worry about.

Emily Sneff: [00:21:25] It's just different sort of understandings of the legitimacy of [00:21:30] this document. And as something that, you know, 250 years later, it's, you know, scripture, right? American scripture. That's what Pauline Maier calls it. It is this treasured [00:21:40] document. And yet in 1776, there's a lot of questions about how legitimate it was, what it really meant. And even like, you know, on this side of the Atlantic, [00:21:50] the Continental Army, you know, here's the declaration read aloud at different locations. And one soldier at Fort Ticonderoga said the declaration made a [00:22:00] little buzz and was soon forgotten. You know, they had to move on to the next thing. So there's this, like, ephemeral nature to the declaration that is very unsettling [00:22:10] for especially Americans today. But that's my favorite thing about studying it.

Nick Capodice: [00:22:17] Hannah, when did the Declaration of Independence become, [00:22:20] as Emily puts it, Scripture.

Emily Sneff: [00:22:22] You know, the 4th of July becomes a day, a day of celebration the following year, 1777. But [00:22:30] it's kind of separate from the declaration, the declaration as a text and copies of the declaration as archival treasure. That takes some time. And [00:22:40] really, things solidify in the 1790s when the declaration becomes politicized. So as Thomas [00:22:50] Jefferson and John Adams are competing politically, the declaration is honestly weaponized by the Democratic-Republicans to [00:23:00] talk about Thomas Jefferson as the author of independence, even though John Adams was there, too. And it kind of baffles Adams that Jefferson has this apotheosis [00:23:10] around the declaration when Adams was part of the process. And so I think that politicization of the declaration then makes it more sacred [00:23:20] and more valuable, and you start to see more conversations about which was better. The draft, which no one knew what was in the draft at that point or the final version. The draft [00:23:30] must have been better because Thomas Jefferson wrote it. You know, there's all of this sort of dialog that makes the declaration seem more exceptional.

Nick Capodice: [00:23:38] Wait, what did Jefferson [00:23:40] do here? He weaponizes the declaration.

Hannah McCarthy: [00:23:42] So he's campaigning against Adams for the presidency. Suffice it to say, that campaign was nasty. Jefferson [00:23:50] basically said, listen, I stand for liberty. Remember this thing I wrote? I stand for states rights. This Adams guy wants a strong central government, so he's [00:24:00] essentially one crown short of a monarchist.

Nick Capodice: [00:24:02] Adams, the guy who wrote that may preamble, the guy who repeatedly called for independence, by the way, is this the campaign [00:24:10] where Jefferson also called Adams a hermaphrodite?

Hannah McCarthy: [00:24:13] No, that was four years later. This is the campaign where Jefferson called Adams overweight. He called him his rotundity. [00:24:20] But the point is, Jefferson is calling up these principles of freedom and reminding everyone that he was the one who authored those principles. [00:24:30]

Nick Capodice: [00:24:30] But Hannah Adams is the one who convinced Jefferson to write the declaration.

Hannah McCarthy: [00:24:35] Yeah, this particular barb just feels really mean on [00:24:40] Jefferson's part. But it does get people thinking and talking about that document from a few years ago. It reinforces the declaration as this founding essential text. [00:24:50] And perhaps it is in part, this document that made and makes us the United States.

Emily Sneff: [00:24:57] So I would say in the 1790s and through Jefferson's [00:25:00] presidency, is when the declaration sort of takes its place on a pedestal. And then by the 1820s, that's when [00:25:10] John Quincy Adams, as secretary of state, orders the engraving of the signed copy to be made. But we also, before that, see commemorative copies starting to be printed so people can [00:25:20] have the declaration on view in their own house. That happens in the 18 tens, 1820s, and then of course, 1826 with the first major anniversary [00:25:30] of the declaration. And although no one celebrating on that day knew it, the deaths of Thomas Jefferson and John Adams, all of those events kind of culminate [00:25:40] in the declaration, having this really sacred place in our nation's history.

Nick Capodice: [00:25:45] Died on the same day those two.

Hannah McCarthy: [00:25:47] Died on July 4th, those two which [00:25:50] come on. And yeah, by that point, after decades of reminders from the people who worked on it and the politicians who came after them, the Declaration of Independence [00:26:00] itself had gone from being something, as Emily puts it, ephemeral, to this precious physical object. Speaking of Jefferson and Adams, [00:26:10] by the way, did you ever read the letters they wrote after they became friends again?

Nick Capodice: [00:26:14] I have not, but I have a sneaking suspicion you have Hannah.

Hannah McCarthy: [00:26:18] Yep. Sure have. So they're [00:26:20] talking again, and they're writing letters about politics and philosophy and aging. And in the same letter where he talks about becoming a great grandfather, Jefferson says, quote, a letter [00:26:30] from you calls up recollections very dear to my mind. It carries me back to the times when, beset with difficulties and dangers. We were fellow [00:26:40] laborers in the same cause, struggling for what is most valuable to man his rights of self-government, laboring always [00:26:50] at the same or with some wave ever ahead, threatening to overwhelm us, and yet passing harmless under our bark. We knew not how. We rode through the storm [00:27:00] with heart and hand and made a happy port. And I love this quote, Nick, because Jefferson is saying, hey, remember when we were just scrappy revolutionaries [00:27:10] and somehow it worked?

Nick Capodice: [00:27:14] Actually, I really love that. I really love that idea. Yeah, I really. Back before, [00:27:20] we were the heroes of liberty and the original leaders of the free world, and we had no idea what was going to happen just riding around on a skiff made of paper.

Hannah McCarthy: [00:27:29] Yeah. [00:27:30] And Adams writes back that he is as anxious about the union today as he was about independence back then.

Nick Capodice: [00:27:40] Wow. [00:27:40] So the United States is still not a foregone conclusion to him.

Hannah McCarthy: [00:27:46] It is not. Adams knows that the piece of paper [00:27:50] that said we were independent is not, in fact, what made us independent, and that calling ourselves the United States of America is not what makes [00:28:00] us the United States of America. The declaration was not a guarantee, nor was the country it named. Not for Adams then, and [00:28:10] not for us now. What makes it a treasure, what makes it Scripture is the work of fellow laborers in [00:28:20] the same cause. This [00:28:30] episode was produced by me, Hannah McCarthy with Nick Capodice. Marina [00:28:40] Henke is our producer, Dana Cataldo is our digital producer, and Rebecca LaVoie is our executive producer. Music in this episode comes from Epidemic Sound. This is just one of many episodes [00:28:50] we have made about the Declaration of Independence. You can check the rest out at civics101podcast.org dot org. Civics 101 is a production of NHPR, New Hampshire Public [00:29:00] Radio.

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Ask a Judge: What is Pro Se?

What is the process when a person wishes to represent themselves in court? How common is it? Is it true that a person who represents themselves "has a fool for a client?"

Today in our "Ask a Judge" series, attorney and magistrate Amy Lin Meyerson and "small town lawyer" Ray Williams give tips for those who have no choice but to address the court on their own behalf.

Here is the American Bar Association's virtual legal advice clinic (staffed by human legal minds, not AI!)

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Transcript

Archival: Legal precedent, Your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government if that act is deemed a defense against tyranny, a defense of liberty, your honor. Henry Ward Beecher in Proverbs from the Plymouth Pulpit, 1887, said, and I excuse me.

Archival: Excuse me, can I make a mockery of the court?

Archival: I am afforded the right to speak in my own defense, sir.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice, I'm Hannah McCarthy. And today, in our not yet a series [00:00:30] series. But I hope it becomes a series. Ask a judge. We are gonna talk about pro se.

Hannah McCarthy: You have a theme song yet?

Nick Capodice: I don't, I don't, but I'm gonna work on one, I promise. So stick around, pro se. Coming right up. All right. Hannah. Today we're talking about one of the scariest seeming things you can do. But it's actually not that scary if you just follow a few steps. Pro se representation.

Ray Williams: Well, that, like so many legal [00:01:00] terms, is a fancy Latin term, but it simply means that you represent yourself. You do not have counsel to represent you.

Amy Lin Meyerson: Proxy means that individuals want to have access to justice and don't necessarily have the means or the desire to pay for legal counsel to represent them. And so they choose to start off by representing themselves before the courts. Sure. I'm Amy Lin Meyerson, I'm an attorney in Connecticut, but I also serve part time as a magistrate with the Connecticut Judicial Branch.

Ray Williams: My name is Ray Williams. I am a sole practitioner [00:01:30] attorney in West Plains, Missouri. I have two offices where I represent folks in all kinds of cases, and I'm just a small town lawyer.

Hannah McCarthy: A small town lawyer.

Nick Capodice: I'm not some kind of big city lawyer. Ladies and gentlemen, my opponent's gonna do a little magic trick here with smoke and mirrors.

Hannah McCarthy: Wait. Amy said she's a lawyer and a magistrate.

Nick Capodice: She is. And therefore, I can technically call this an Ask a Judge episode.

Hannah McCarthy: Oh, a [00:02:00] magistrate is a judge.

Nick Capodice: Yes, albeit with limited powers and jurisdiction.

Amy Lin Meyerson: So I hear civil cases that are under $5,000, unless they're involving home improvement contracts, that jurisdictional limit goes up to $15,000. Also here, housing session matters. And then on the criminal side, I hear a motor vehicle infractions.

Nick Capodice: So again, pro se is simply when somebody represents themselves in court. The Latin is pro for, say, oneself or yourself. [00:02:30] And if you fall down a YouTube rabbit hole like I did, you can see thousands upon thousands of videos of people representing themselves and making a hash of it. Many of them, Hannah, sovereign citizens.

Archival: Are article six judge. Under the Michigan Constitution, you have no authority to deprive me of my rights. See how.

Archival: Much authority I have.

Archival: Because you don't know what you're doing. That's what I tried to tell you originally, the first time you were here. You've never been to law school, you've never tried a case. You don't know the rules [00:03:00] of evidence and all the other things.

Archival: You don't have power to do that.

Archival: So your hearing is over. If you don't take your paperwork and leave the courtroom, we'll have you remanded into custody.

Archival: You're threatening me now? I'm even more.

Archival: Giving you a.

Archival: Choice. And if anybody tries to touch me, I'll charge them with assault and battery.

Hannah McCarthy: I think we should make a whole episode on sovereign citizens.

Nick Capodice: We could. It might get us in a bit of a pickle. And I want to be careful, but let me just do a fast explainer on that movement. Sovereign citizens [00:03:30] believe they are not subject to the laws of a government, and that US citizens are being used as collateral to pay off foreign debt, and that birth certificates and social security numbers are just bills of sale. And the aforementioned YouTube rabbit hole is rife with titles like Judge Destroy, Sovereign Citizen, Argument in five seconds.

Ray Williams: The fact is that, yeah, anybody can represent themselves and you don't need to make odd constitutional arguments [00:04:00] about. Sovereign citizen type things that, uh, the patents don't pass down from the king all the way to the common law and all the things that they want to talk about. In fact, you can represent yourself and tell the judge your story.

Nick Capodice: So now we've got that out of the way. Let me say, sovereign citizens aside, people representing themselves in court is a lot more common than I had thought.

Hannah McCarthy: How common is it exactly?

Ray Williams: Well, it turns out there's been studies on that, and it's an increasing, uh, [00:04:30] increasingly common situation, uh, largely because of two things. One, folks sometimes just choose to, to go it alone. They don't think they need a lawyer or they think they can do an adequate job by themselves.

Amy Lin Meyerson: For the cases I preside over in small claims court, many of our litigants are self-represented, and you are seeing increasingly individuals representing themselves in the courts of general jurisdiction as well, because they don't have access to attorneys that they can [00:05:00] hire on a regular basis.

Ray Williams: The more concerning thing, Nick, is this thing called our justice gap, where folks want a lawyer, but they simply cannot afford one.

Nick Capodice: Now, if you're a defendant in a criminal case, you have a right to an attorney. If you cannot afford a lawyer, the court appoints one to you.

Hannah McCarthy: And this is a public defender, right?

Nick Capodice: But you do not have a right to an attorney in a civil case.

Ray Williams: Let's talk about civil cases and a civil case versus a criminal case is you're not charged [00:05:30] with a crime, but you're suing or being sued, uh, typically for money or maybe rent and possession or an eviction case where they're asking you to move out of your apartment. And in those cases, uh, the numbers of pro se litigants are staggering. Uh, for example, in landlord tenant cases, uh, in, uh, credit card collection cases, the larger entity, Usually the credit card company or the landlord will have a lawyer. The pro SE litigant will appear by themselves. Who is [00:06:00] the tenant or the person owing the money or allegedly owing the money. And in those cases, uh, it's generally more than 50%.

Hannah McCarthy: Wow. Half.

Speaker 2: Yeah, half.

Nick Capodice: Maybe more.

Ray Williams: There are some of the statistics will say it's as high as 75% or 80% of one side is represented and the other side is not in state court especially. And we're talking about state court cases, unlike the federal courts, where generally it's, uh, the type of litigation where everybody has a lawyer and in cases in state [00:06:30] court where one company sues another almost every time, there, both sides will have lawyers in those cases. But in cases like landlord tenant, consumer debt collections, family law, increasingly one side can afford a lawyer, the other side cannot. Or, uh, some, some of those, uh, small claims court, for example, that'll always be both sides are pro se, but that was designed for pro SE litigation, but these others were not. And it's simply that, uh, IT folks just can't afford a lawyer to represent them in these kind [00:07:00] of cases.

Hannah McCarthy: This may seem like it has an obvious answer, but if you had to choose between having a lawyer represent you and representing yourself, you would pick the lawyer, right, Nick?

Nick Capodice: You would almost all the time. There is a famous quote that is attributed everywhere to Abraham Lincoln, but I couldn't find the source for it. So I'm going to say, unless a listener writes in with a citation, I'm going to say it is in the air. But the quote is this a lawyer who represents himself has a fool for a [00:07:30] client. Now, Ray did say pro se representation is rare in federal courts, not so rare in state courts. But when people did represent themselves in federal courts, the judge ruled in their favor. Only 12% of the time, if they were the defendant, and 3% of the time when they were the plaintiff.

Amy Lin Meyerson: In a case, a general jurisdiction court where the formal rules of evidence do apply. Then having a lawyer is very helpful because attorneys are familiar with the rules [00:08:00] of evidence and how to get evidence admitted and keeping evidence from being excluded. They'd like to have admitted that would help prove their case. So it is. It is helpful, obviously, to have a lawyer.

Ray Williams: If you don't know the rules of procedure, if you don't know the rules of evidence, if you don't know what you're what's called the burden of proof or how what do I have to prove to win? Or if you don't know when the other side's doing something wrong so that you can object, your odds are pretty much stacked against you, and that it's really a concern that [00:08:30] we have. Also, the court system doesn't run as efficiently because folks don't know what is going on in court. They're not used to being in court. And so they're asking the judge to help. And then unfortunately, judges are, by their ethical guidelines and standards, are not allowed to help, uh, litigants. So that that is a real concern.

Hannah McCarthy: Can you tell me what Amy and Ray mean by the rules of evidence.

Nick Capodice: Yeah.

Ray Williams: And that's one of those lawyer things that it just comes by nature to me. But yeah, that's a very important question. [00:09:00] And a rule of evidence is that hearsay, for example, is defined as an out-of-court statement. Like you and I are having this conversation offered into court for the truth of the matter asserted. And what that means is, if we took this recording and took it to court, it wouldn't be admissible as evidence according to the rules of evidence, unless there was an exception that allowed it to come into play. And that is an example. Just like the photograph, a [00:09:30] photograph in itself is an out-of-court statement, in this case a picture or a video that was made. But you have to demonstrate to the court a what's called a foundation, that it was made at the time of the incident, or in a situation where the incident is the same or substantially similar, uh, as to when the timeline of what's going on happened. So you have to be able to know enough to get your evidence, your documents into evidence so the [00:10:00] judge can consider them. And if you're going up against a lawyer, the lawyer's likely to object. If you try to offer something that's inadmissible.

Hannah McCarthy: This all sounds pretty daunting.

Nick Capodice: It is daunting. But, Hannah, let me say it is not impossible. Again, so many people have no choice but to represent themselves. So after a quick break, I'm going to give everyone some tips if they're going to have their own day in court. We're [00:10:30] back. You're listening to Civics 101 and we are talking about pro se.

Hannah McCarthy: All right. So if you are involved in a civil case and you cannot afford a lawyer or you just plain don't want one, how can you make sure that you do things right?

Nick Capodice: All right, here we go. Hannah. Step number one.

Amy Lin Meyerson: If you look on the judicial branches website of your state, there's actually a tab for self-help. And if you click on that tab, it'll bring up a lot of information on things you need [00:11:00] to do to bring a case in court on your own. There are different resources where you can get free legal advice either through your bar association. A lot of bar associations often have legal aid clinics that are free and open to the public, where you can come ask a question. The American Bar Association actually has a program called Free Legal Answers, which is like an online walk in clinic, and it's available in a lot of different states. And if you go on the ABA's website, ABA free legal answers.org, you can [00:11:30] click on there and just post a question online and an attorney will answer your question.

Nick Capodice: I am going to put some helpful links that Ray and Amy sent my way down there in the show notes, by the by. But on we go. Step number two take a day off and see what you're in for.

Ray Williams: If a party has to go to court by themselves. Then you need to understand you're being held to the standards of the lawyer. I would recommend going to a courthouse and seeing how it works beforehand, preferably on the same type of docket, a family law [00:12:00] docket. Very common is these what's called order of protections or a similar name, where folks get a restraining order to keep another person away from them. I would recommend if you're involved in a situation like that, you go to one of those courts and watch them before your case comes up.

Nick Capodice: Have you been to court, Hannah? Like not have you been on trial, but have you visited a courtroom just to see what's going on?

Hannah McCarthy: Of course, we had a whole episode about it.

Nick Capodice: Oh that's right. It was the Supreme Court, wasn't it? What [00:12:30] about, like, a regular court? Not the Supreme Court.

Hannah McCarthy: I have my aunt is a lawyer, and I have watched her in court before. What about you? Have you?

Nick Capodice: Yeah. One of my professors in college said courts in the United States have open proceedings. The building is ten blocks from here. Just walk in and take a seat. And I did, and it was fascinating.

Hannah McCarthy: Do you remember what the trial was?

Nick Capodice: Yeah. A kid in Boston got in a fight in a mall. Anyways, physically going [00:13:00] to the court beforehand isn't just to see what your trial is going to be like. It's to talk to the clerks and to make sure you've done all the proper paperwork.

Amy Lin Meyerson: So there's a fair amount of legwork that needs to happen before you actually appear in court.

Amy Lin Meyerson: It's always important to first go to the courthouse or connect online with the clerks of the court and find out what procedures you need to follow in small claims court in Connecticut. While the formal rules of evidence don't apply, uh, you still do [00:13:30] need to follow the practice rules, so it's important to follow the procedures of the court. Make sure you have your documents that you need to file files in on time, and have all of the information to prove your case also filed. Um, oftentimes I'll see Self-represented parties file the claim or the writ and say, um, Mr. X owes me such and such amount of dollars because I paid them to do the service. They didn't provide the service. Um, and that's all they write on the writ. Um they failed to [00:14:00] um attach, for example, the service order or a canceled check showing that they paid the amount and that evidence or the supporting documentation needs to go with your claim so that the court can look at all the evidence and determine whether or not they should rule in your favor.

Ray Williams: Always remember, the court clerk is your best friend. They know where things are. They know things, how things get done. They're not going to give you legal advice, but it sure is nice to know when your docket is and what you need to do next, where you need to stand those sorts of things. Um, remember, [00:14:30] as I said before, you're held to the same standard as a lawyer, so you need to have some familiarity with what your case is about, what the rules of procedure are, uh, such that, uh, you know, you know, what to file, what must be filed. What's, uh, what the deadlines are. Don't miss a deadline. That's a real key point.

Hannah McCarthy: All right, so these are all things to do before you appear in court to represent yourself. What about the day itself?

Nick Capodice: Well, I told Amy that if I did this, I'd kind of feel like a dog playing basketball and not a particularly [00:15:00] talented dog like Air Bud. And so I asked her, is this kind of like a one day crash course version of law school? Like everyone in court trying to help out the person doing pro se.

Amy Lin Meyerson: I think it can be very daunting for people who haven't gone to law school. It is similar to maybe what people have seen on TV. I don't know if it's exactly like a law school experience where you're in a classroom where the professor is asking you questions of the [00:15:30] Socratic method. Um, but yes, you, the, the self-represented parties will come to court, they'll present their case, provide the evidence or point to the evidence that they've already filed, um, and then hear what the other side has to say.

Nick Capodice: Also, courtesy goes a long way.

Ray Williams: Show up not in some t shirt with your favorite crazy logo on it, but instead show up, uh, professionally dressed. You don't have to wear a suit and tie, but certainly or, or, or, you know, a funeral dress. But on [00:16:00] the other hand, it's very good to show up in a professional way and, uh, take it very seriously. Uh, it's always good to refer to the judge as your honor or. Yes, judge or, or, or very politely and professionally, even if they rule against you. Uh, don't argue with the judge. Don't argue with folks like that.

Amy Lin Meyerson: One important thing is, uh, the litigant should do their best to remain civil and really focus on getting their story out and telling the court what it is that they would like [00:16:30] to see happen, what kind of relief they want, and not focus on little things, um, like trying to refute every single thing that the other side has said, um, and trying not to get too emotional so that your story is told. So the court it makes it easier for the court to render a decision. I've had a couple of different instances. Either the litigants get very angry with each other and start, you know, saying, oh, that person is lying, or that's not true, or focusing on little issues like, oh, he threw a gum gum wrapper at my, [00:17:00] at my feet when we were talking. And that's really disrespectful, but really doesn't get to the heart of the legal issue that they're trying to, to show. Um, I've also had, um, unfortunately, disputes between family members where they get very emotional. Um, and it's difficult to hear what they're trying to relay because they're just overcome with emotion. And it's, it's, it's hard to hear what they're trying to say.

Hannah McCarthy: Okay, let me run it all back. Go to the court's website, make sure you filed everything you need [00:17:30] to file beforehand, go to the actual court itself to see a trial similar to your own and make friends with the clerk. Don't miss deadlines. Dress professionally. Be courteous and don't let your emotions get the better of you.

Nick Capodice: And there's one thing we mentioned earlier you have got to do your research on the rules of evidence as pertains to your case in your state.

Ray Williams: Be sure that you know some basic information about the rules of evidence. [00:18:00] If you have a picture and you want to introduce it, then you have to tell the judge that it's fairly and accurately depicts what you're wanting to tell the judge about. You always get tripped up on hearsay, and that's a complicated area of evidence, but at least have some basis for what you have to do in your case. Uh, and then know what you want. Because if you don't ask the judge for what you want out is the judge give.

Speaker 13: It to you.

Hannah McCarthy: Last thing, Nick, I know there has been a significant [00:18:30] increase in people using AI to prepare for a case. Is this something that's recommended?

Nick Capodice: Well, Hannah, as you know, I'm kind of a dyed in the wool take no prisoners anti AI guy. But Ray said it could be helpful. But you've got to be careful.

Ray Williams: The artificial intelligence is is extraordinarily helpful in legal research now. But remember that especially the general artificial intelligence platforms will [00:19:00] from time to time, if you ask it a question, almost try to be too helpful and hallucinate an answer. And those hallucinations are common in the law. And sometimes you'll get a case citation that if you look it up, it's not really there. It's it's it's made up. Uh, judges have had that happen with, uh, typically young lawyers, but law firms have filed those things where they used AI to give answers, and they were made up answers and they didn't check them and have gotten into significant and serious trouble. [00:19:30] So if you use AI, go look at your source documents, look at your citations, and be sure that those cases exist, and it's always good to even print them out and provide them to the court as a courtesy.

Nick Capodice: Perhaps unsurprisingly, Ray said, if you can afford a lawyer, get a lawyer, even if it's just for one little part of the process.

Ray Williams: There's something in most states called limited scope representation, and you're able to retain counsel for a limited purpose. For example, [00:20:00] if you are sued, that's usually in the form of something called a complaint or a petition. You need to file something called an answer. That's a legal document. And you can sometimes hire a lawyer to just file your answer. Or you could hire a lawyer to just go to trial in a in a landlord tenant case, for example. So you might be able to limit the scope, the nature of what the lawyer is going to do for you and pay less money. The other thing is if you qualify, it's the right type of case and you don't have sufficient income, then you might [00:20:30] qualify for something called legal services. And the Legal Services Corporation is a national corporation with uh, various entities around all the states, uh, that provide legal services to the indigent who cannot otherwise afford counsel in a civil case. And in those situations, they would represent you for free. In other words, if you can get counsel, do it just like, uh, as the old adage is, I wouldn't want to take my out my appendix, even though I know how to do it because I can read it on the internet.

Nick Capodice: That's [00:21:00] all we got on pro SE today. That's all we got on Pro SE today. This episode is made by me, Nick Capodice with my name in all capital letters and Hannah McCarthy. Our staff includes producers Marina Henke and Dana Cataldo and executive producer Rebecca LaVoy. Music. In this episode from blue Dot sessions, Epidemic Sound and His Honor, Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio.

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What's the Strait of Hormuz? And how do blockades work?

You've been hearing about it in the news, but what exactly is the Strait of Hormuz? And as for those blockades...how do they work?

Listen to the episode:

Watch Hannah give a quick explainer on the Strait of Hormuz:

Transcript

Hannah McCarthy: [00:00:00] Nick. Something has been bothering me.

Nick Capodice: [00:00:04] Just one someting.

Hannah McCarthy: [00:00:05] I have been reading and hearing everywhere that Iran blockaded [00:00:10] the Strait of Hormuz, and that the United States blockaded the Strait of Hormuz, and that the Strait of Hormuz is shut down. And now the Strait of Hormuz is open again, and gas [00:00:20] goes down and gas goes up and on and on. And I'm like, hang on, wait a minute. What is the Strait of Hormuz?

Nick Capodice: [00:00:28] You know what the Strait of Hormuz is. [00:00:30]

Hannah McCarthy: [00:00:31] Do I? I know what it looks like because it's all over the news. I know where it is kind of. I know when you mess with it, the gas prices go [00:00:40] up way, way up. And that it has to do with the oil tankers that usually go through it. But do I really know what the Strait of Hormuz is? And [00:00:50] while we're here, what's a blockade?

Nick Capodice: [00:00:52] Okay. You also know what a blockade is.

Hannah McCarthy: [00:00:55] What is a blockade?

Nick Capodice: [00:00:56] It's when you block something.

Hannah McCarthy: [00:00:59] You [00:01:00] see what I mean? All right, here we go. I'm Hannah McCarthy.

Nick Capodice: [00:01:03] I'm Nick Capodice.

Hannah McCarthy: [00:01:07] This is Civics 101. And today we are [00:01:10] 101-ing, winning the Strait of Hormuz and all the stuff that's going on there right now.

Archival: [00:01:16] Now, earlier this morning, eastern time, the United States and Israel launched [00:01:20] a major military attack on Iran, striking dozens of targets across the country, including in the capital of Tehran. You can see the strikes.

Archival: [00:01:27] What is the objective? What is the end game here? The president [00:01:30] of the United States in that video saying there will be American casualties.

Archival: [00:01:35] Iranian officials say airstrikes hit an elementary school Saturday, killing more than [00:01:40] 160 people, mostly children.

Archival: [00:01:43] What's going on there? Militarily defeated. And now we're going to open up the Gulf with them, [00:01:50] with or without them. But that will be open. We're going to be or the strait, as they call it. And I think it's going to go pretty quickly. And if it doesn't, we'll be able to finish [00:02:00] it off one way or the other. It's going well.

Archival: [00:02:03] Since the U.S. war with Iran began one week ago, filling up has become a lot more expensive. [00:02:10] $0.43 a gallon more.

Archival: [00:02:12] I was driving here today thinking, all right, what can I give up in order to get gas?

Archival: [00:02:18] Because, you know, we are just [00:02:20] sailors. We are just seafarers. We are not trained for for war or war like situations. Uh, we just keep the world trade moving [00:02:30] and, but we, we really feel that we have become, you know, collateral damage here.

Hannah McCarthy: [00:02:49] All [00:02:40] right, Nick, tell [00:02:50] me what you know about the Strait of Hormuz.

Nick Capodice: [00:02:53] Okay, so it's a strait like a waterway between two other bodies of water. And it is how a bunch of [00:03:00] gas and oil gets from, I'm assuming, oil refineries and gas plants out to the ocean on boats.

Hannah McCarthy: [00:03:07] Sure. Great. It is how the oil and the gas [00:03:10] gets out. So it's like this. There's a lot of oil and natural gas in the countries around what we call the Persian Gulf. Those countries are Oman, the United Arab [00:03:20] Emirates, Qatar, Bahrain, Saudi Arabia, Kuwait, Iraq and Iran. The only sea passage from the Persian Gulf to [00:03:30] the ocean is through the Strait of Hormuz.

Nick Capodice: [00:03:33] Which for the people in the back is what exactly?

Hannah McCarthy: [00:03:37] It's about 104 miles long and only 21 miles [00:03:40] wide, at its narrowest point between Oman and Iran. It is the funnel that pours about 20% of the world's oil and gas, specifically liquefied natural [00:03:50] gas, as well as helium and fertilizer and other goods out of the Persian Gulf and into the Gulf of Oman on ships. It is also how a lot of goods get [00:04:00] in to the Persian Gulf.

Nick Capodice: [00:04:01] And who exactly controls the Strait of Hormuz.

Hannah McCarthy: [00:04:05] Okay, so the Strait of Hormuz is like a two lane shipping highway. Boats go into [00:04:10] the Persian Gulf on the lane closer to Iran, and they leave on the lane closer to Oman. I mean, this is how it was happening. But neither country owns or [00:04:20] controls the strait in any legal way. If you ask most of the world, it's basically communal property. The United Nations Convention on the Laws [00:04:30] of the Sea.

Nick Capodice: [00:04:30] Maritime Law.

[00:04:32] No, this is not maritime law. This is a different thing.

Nick Capodice: [00:04:34] You're a crook, Captain Hook.

Archival: [00:04:38] Judge, won't you throw the [00:04:40] book at you?

Hannah McCarthy: [00:04:42] Yeah. Very good. Okay. If you ask the United Nations, according to the Laws of the Sea Treaty, this is an international strait. [00:04:50] And ships have a right of passage through that strait, aka transit passage. Now, Iran did not ratify that treaty. So if you ask them, they'll say, yeah, it's an international [00:05:00] strait, but only for innocent passage.

Nick Capodice: [00:05:03] Innocent meaning what?

Hannah McCarthy: [00:05:05] Yeah. Well, very basically it means a ship is just passing on through. It means no [00:05:10] harm, poses no security threat. But who do you think decides what is a security threat in a case like this?

Nick Capodice: [00:05:17] Iran.

Hannah McCarthy: [00:05:17] Yeah. Now, the U.S. disagrees [00:05:20] with that level of Iranian control over the strait, even though we did not ratify the U.N. Sea Treaty either.

Nick Capodice: [00:05:27] You ever notice how, despite the fact that the U.S. was [00:05:30] instrumental in founding the U.N., we tend not to agree to their rules.

Hannah McCarthy: [00:05:35] That is a whole other episode in and of itself. Anyway, we do want other countries [00:05:40] to agree to the UN's rules. So Iran may not legally control the strait, but geographically they have the catbird seat [00:05:50] on one of the world's most important choke points.

Nick Capodice: [00:05:54] Choke points. If that isn't already a band name. Hannah. I will eat my hat.

Hannah McCarthy: [00:05:58] When it comes to the [00:06:00] sea. A choke point is a place where a lot of trade ships are passing through, because they don't really have a good alternative. The Strait of Hormuz is the most efficient way to get [00:06:10] things in or out of the countries on the Persian Gulf. A maritime choke point is also a very vulnerable place.

Nick Capodice: [00:06:20] Right, because [00:06:20] you've got a super high concentration of trade goods going through one small space.

Hannah McCarthy: [00:06:25] And if those trade goods, for example, 20% of the world's natural gas and oil [00:06:30] cannot get through, shut that highway down and you got global impact. So like if you started a war with one of the nations that borders the Strait of Hormuz, [00:06:40] that could be disruptive.

Nick Capodice: [00:06:42] It very well could be.

Archival: [00:06:43] Tonight, oil fields on fire from Iraq to Tehran, fueling growing concerns over the rising price of oil. [00:06:50]

Archival: [00:06:50] Oil prices surged again today after President Trump did not provide a clear timeline on the end of the war in Iran or a potential reopening of the Strait of Hormuz during his address last night. [00:07:00] International...

Archival: [00:07:00] And we are worried, and we're hearing from these worried analysts who say, you know, in a worst case scenario here, if this continues a pace. There's concern [00:07:10] of an unprecedented price of $200 a barrel. That is very extreme. And that would again, be unprecedented. But that is what...

Hannah McCarthy: [00:07:20] And [00:07:20] we're going to get to that after a quick break.

Nick Capodice: [00:07:42] We're [00:07:40] back. We're talking about the Strait of Hormuz and what's going on over there. Actually, real quick, Hannah, did you figure out why it's called the [00:07:50] Strait of Hormuz?

Hannah McCarthy: [00:07:51] Do you know much about Zoroastrianism?

Nick Capodice: [00:07:54] I know it's got a lot of fire, but I asked you first.

Hannah McCarthy: [00:07:57] The strait is most likely named for a Zoroastrian [00:08:00] god of creation and cosmic order. The Kingdom of Hormuz was founded on what is now the Iranian coast in the 11th century, and it became this vast emporium [00:08:10] kingdom. And why, Nick, do you think that was such a good place to succeed in business?

Nick Capodice: [00:08:16] I am going to guess that strait has something to do with it. [00:08:20]

Hannah McCarthy: [00:08:20] You control that strait, you basically control a gate between much of the Middle East and East Asia. And guess what? That's still the case [00:08:30] today, and we probably would not be doing an episode on it if it weren't for how the US government got very, very involved in that control situation. [00:08:40] So here is a brief and broad how we got here, because this episode is about the Strait of Hormuz and not about the current war in Iran. The U.S. and Israel coordinated strikes [00:08:50] across Iran in late February. President Trump claimed this was to topple the Iranian theocracy. Now theocracy is what Nick?

Nick Capodice: [00:08:58] Well, theocracies are kind of [00:09:00] old school, they're deity based. So the top religious leader has ultimate authority. Like when the faith of the seven takes over Kings Landing in Game of [00:09:10] Thrones, for example.

Hannah McCarthy: [00:09:11] Right. Or when the Shia cleric Ayatollah Ali Khamenei is the supreme leader of Iran, even though Iran has a democratically elected president, Khamenei [00:09:20] was killed in the February strikes.

Archival: [00:09:22] We are getting information from Israeli sources that the Ayatollah is dead. This is breaking news. [00:09:30]

Nick Capodice: [00:09:30] And as we all know, that's all it takes to overthrow a government system.

Hannah McCarthy: [00:09:34] Yeah. No, Khamenei's son, was named the new supreme leader in early March.

Archival: [00:09:38] Iran naming its new supreme [00:09:40] leader Mojtaba Khamenei. He's the son of the late Supreme Leader Ayatollah Ali Khamenei. I want to bring in CNN's Jeremy...

Hannah McCarthy: [00:09:47] Okay. Iran retaliates, and their retaliation [00:09:50] includes striking ships. Two in the Persian Gulf. One in the straight.

Nick Capodice: [00:09:55] U.S. ships.

Hannah McCarthy: [00:09:56] No.

Archival: [00:09:57] New images near the Strait of Hormuz off Iran, where [00:10:00] new attacks are now sending oil prices on another wild ride today. This is a Thai flagged ship, one of at least three vessels [00:10:10] that have been struck.

Nick Capodice: [00:10:11] Wait, why?

Hannah McCarthy: [00:10:11] War? What is it good for? So very broadly? Iran has threatened to attack ships that pass through the strait without permission. The ships in the Gulf [00:10:20] were near the strait, and I don't have the intel on Iran's military decisions. But the perhaps bigger thing going on here is that even the suggestion of danger in and [00:10:30] near the Strait of Hormuz means a massive disruption to the global economy.

Nick Capodice: [00:10:35] So is this the blockade? Can we get to the blockade?

Hannah McCarthy: [00:10:38] We can. Iran has not [00:10:40] formally declared a blockade. And this is important because blockades are detailed in international law. Blockades are acts [00:10:50] of war, and they are regulated.

Nick Capodice: [00:10:53] You ever think about the fact that we have all these international laws governing how to destroy other countries?

Hannah McCarthy: [00:10:59] I think about [00:11:00] that a lot. Okay. So for a blockade to be binding as in legal, as in within the parameters of war law, you first have to have enough resources to [00:11:10] do it, like boats or planes, to stop people or things from coming and going.

Nick Capodice: [00:11:15] Like proof of income when you're applying for a loan.

Hannah McCarthy: [00:11:19] Sure. Why not? [00:11:20] Okay. Then you have to openly declare the blockade to the country you're blockading.

Nick Capodice: [00:11:26] Which Iran did not do.

Hannah McCarthy: [00:11:27] They did not, but we did.

Nick Capodice: [00:11:29] We [00:11:30] as in the US?

Hannah McCarthy: [00:11:32] Yes. So what happened was this: Iran and the US negotiated a cease fire. And the US said, okay, if we're going to [00:11:40] do this cease fire, you have to let the ships get through the strait.

Nick Capodice: [00:11:43] And did Iran do that?

Hannah McCarthy: [00:11:44] Few things here. Iran was like, okay, just to be clear, if you want to go through, you still got to get [00:11:50] our permission. They also planted sea mines in the strait. So basically the idea here is that the strait has been made pretty dangerous.

Nick Capodice: [00:11:58] So generally boats [00:12:00] aren't getting through.

Hannah McCarthy: [00:12:01] Right. So the US said, okay, fine. You're basically blockading. So we are going to officially blockade you Iran.

Archival: [00:12:09] Trump wrote [00:12:10] in part, quote. Effective immediately, the United States Navy, the finest in the world, will begin the blockade. The process of blockading any and all ships trying to enter or leave the Strait of Hormuz. I've also [00:12:20] instructed our Navy to seek and interdict every vessel in international waters that has paid a toll to Iran. No one...

Archival: [00:12:28] Our first images tonight of [00:12:30] what the U.S. naval blockade of Iran looks like up close.

Archival: [00:12:34] You do not comply with this blockade. We will use force.

Archival: [00:12:36] As American warships today broadcast warnings [00:12:40] to vessels near the Strait of Hormuz not to dock...

Nick Capodice: [00:12:43] All right. I was trying to understand this. Trump said we would blockade the Strait of Hormuz.

Archival: [00:12:49] Iran [00:12:50] was already saying that they were blocking it from traffic. Then now Trump is saying he's going to block it too. We don't really know.

Hannah McCarthy: [00:12:57] Which we did not do. That would have been a violation [00:13:00] of international law. Remember, a binding real legal blockade has rules. These include specifying the geographic area of the blockade, which the U.S. said [00:13:10] is the Gulf of Oman and the Arabian Sea, and that it applies, to quote, all ships, regardless of nationality, heading into or from Iranian ports.

Nick Capodice: [00:13:19] All right. This is [00:13:20] something I've always wanted to know. What are we actually doing out there? Like, what does a blockade actually look like? Are there flotillas of U.S. boats just floating out there [00:13:30] in front of Iranian ports?

Hannah McCarthy: [00:13:31] Definitely not. That would not be safe. This blockade consists of reports say, 16 ships patrolling the waters [00:13:40] off the coast of Iran and communicating to other boats that they will be boarded for search and seizure if they try to go to Iran or from Iran. The U.S. has only boarded one ship so far and apparently it's really difficult. The [00:13:50] US chairman of the Joint [00:14:00] Chiefs of Staff said, quote, it is like driving a sports car through a supermarket parking lot on a pay day weekend, with [00:14:10] thousands of kids in that parking lot. As you attempt to maneuver through there to get to that ship that would attempt to run that blockade.

Nick Capodice: [00:14:20] Wow. [00:14:20] First of all, that feels like an oddly specific comparison. And second of all, why is it so crowded in there?

Hannah McCarthy: [00:14:28] Because barely anyone [00:14:30] was getting through the Strait of Hormuz. They have, for the most part, either been trapped in the Persian Gulf or waiting around in the Arabian Sea.

Nick Capodice: [00:14:38] What is the goal [00:14:40] here, Hannah? Nothing and nothing out. Just what? Starve Iran until it cracks.

Hannah McCarthy: [00:14:46] I am glad you brought that up. That would also be a violation of international law. It would be [00:14:50] a war crime. Actually, the U.S. cannot stop food or medicine from reaching Iranian ports. What they can do is try to starve the Iranian economy. If Iran [00:15:00] can't export oil, they're in trouble. And that's the gamble. Put pressure on Iran and see where diplomatic talks go when they're under the [00:15:10] thumb.

Nick Capodice: [00:15:13] So I'm going to guess Iran is not thrilled.

Hannah McCarthy: [00:15:16] That is correct. In fact, they said that the U.S. is essentially violating [00:15:20] the terms of the cease fire by doing this blockade. Amidst all of this, by the way, Iran has changed the shipping route through the strait. Remember how that inbound shipping [00:15:30] lane, the one that goes into the Persian Gulf, is the one closest to Iran?

Nick Capodice: [00:15:35] Yeah. This is like the giant two lane sea highway.

Hannah McCarthy: [00:15:38] So Iran is now saying that ships [00:15:40] must come and go via this narrower, more circuitous route that passes through Iran's territorial waters and past some of its islands, the [00:15:50] rest of the straight, they say, is currently too treacherous.

Nick Capodice: [00:15:54] Does that give Iran more control of those ships somehow?

Hannah McCarthy: [00:15:58] Well, there were reports of Iran [00:16:00] requiring ships to submit full documentation, obtain clearance codes, accept Iranian escort through this passage, and though Iran has partially denied this [00:16:10] and partially indicated that this was exactly the plan charge a toll for safe passage, there have been reports that at least a couple of ships have paid a toll as high as [00:16:20] 2 million in cryptocurrency.

Nick Capodice: [00:16:23] Wow. So it's a toll booth checkpoint, right? Of massive proportions.

Hannah McCarthy: [00:16:29] A toll, to be [00:16:30] clear, would be illegal. It would be a violation of international law. The number of times I have said that something is a violation of international law would almost be funny if I weren't talking [00:16:40] about violations of international law. But the thing is, Nick, war, albeit not a war that the U.S. actually declared, has [00:16:50] a way of revealing exactly how imaginary law actually is.

Nick Capodice: [00:16:58] Because we just made it up. [00:17:00]

Hannah McCarthy: [00:17:01] We just made it up for really good reasons. And when people agree to it, it exists. Or when you [00:17:10] get into a high stakes international conflict and have multiple nations interpreting things, multiple nations disagreeing on things, the law gets thin. [00:17:20] As of today, April 20th, when I am speaking these words, Iran, a country which does not legally own [00:17:30] or control the Strait of Hormuz, has quote unquote opened and quote unquote closed it based on what other countries have done. Yesterday, the United [00:17:40] States seized an Iranian cargo ship. Our country would say this is within the bounds of our legal blockade. Iran says it's an act of piracy.

Nick Capodice: [00:17:49] Piracy, [00:17:50] eh? It is amazing how quickly the code becomes more like guidelines than actual rules.

Hannah McCarthy: [00:17:57] You just had to sneak that in there.

Nick Capodice: [00:18:00] Oh, [00:18:00] come on, Hannah, you handed it to me.

Hannah McCarthy: [00:18:02] Fair enough. Anyway, for now, we wait. We being the whole world. [00:18:10] The people who need the law. And we see whether or not a small group of people can agree on what is real and [00:18:20] what isn't. This [00:18:40] episode was produced by me, Hannah McCarthy and by our executive producer, Rebecca Lavoie. And with Nick Capodice, my co-host. Marina Henke is our producer. Dana [00:18:50] Cataldo is our brand new digital producer. We are so lucky to have her. Make sure to follow us on Instagram and TikTok at civics101podcast.org to check [00:19:00] out everything Dana has been and will be making in the coming months. She's brilliant. As always, you can get everything Civics 101 has ever made at our website. Civics101podcast.org. [00:19:10] Civics 101 is a production of NPR New Hampshire Public Radio.

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How did federal income taxes get this way?

Paying income taxes is a civic responsibility... but it hasn't always been. Where did it start, and where is it now?

We haven't always had a federal income tax, and in the beginning, it only applied to the very richest Americans. So how did we end up with the permanent income tax we have today, with all its complicated rules about everything from pre-tax income to deductions and credits? And what does it actually pay for?  

Listen:

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This transcript is computer-generated, and may contain errors.

Hannah McCarthy: [00:00:00] Hi, this is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:00:02] And I'm Nick Capodice. And I guess we're just jumping in. No warm up, no archival, just going right into this.

Hannah McCarthy: [00:00:09] Well, I do have a question for you, but it sounds a lot like a question we might ask at the beginning of an ad, which this is not. This is a real show. We are not trying to sell you on anything, but we are going to talk about something that you're probably hearing a lot of ads about right now, and that is taxes.

Nick Capodice: [00:00:32] Oh dear.

Archival Sound: [00:00:33] They say everybody's got different problems. Well, maybe so, but I've got a song about one problem that every one of us have and that's taxes.

Hannah McCarthy: [00:00:44] So I solemnly swear I'm not about to sell you a tax service. But I do want to ask to any of these questions sound familiar to you? How many kids do you have? Do you work from home? Did you save for retirement? Did you pay tuition? How about student loans? Did you get money from an inheritance? Did you buy an electric vehicle? Did you donate to a charity? Did you buy a house? Sell a house? How big is your office?

Nick Capodice: [00:01:04] Yeah, I'm familiar with all those questions, Hannah, because I answer them when I file my taxes.

Hannah McCarthy: [00:01:09] And, Nick, if you don't mind me asking, how did you do your taxes last year?

Nick Capodice: [00:01:15] Well, after I put them off, I used an accountant.

Hannah McCarthy: [00:01:19] Right. Like you, most Americans need help figuring out how much money we owe the government. Each year, about 90% of people use technology like TurboTax or hire a human tax preparer to do their tax return. Tax season requires an enormous amount of time, money, and resources, not only from the government, but from us, the taxpayers.

Nick Capodice: [00:01:41] It is pretty confounding, Hannah, that we live in a country where you basically need a degree in accounting, or the money to pay for someone with a degree or computer software just to comply with the law. It's hard to understand how that's a good thing.

Hannah McCarthy: [00:01:56] You raise a good point. So I want to introduce you to someone named Beverly Moran. She's a professor of law and sociology at Vanderbilt University, where she focuses on federal income taxation. She's testified before Congress and written extensively about the complexity of our income tax system.

Beverly Moran: [00:02:12] I mean, what people talk about being able to have a tax return on a postcard, that was basically the amount of information you had to put on a return for most people. But the problem is, as the tax started to filter to the whole country, there was another sort of movement going on which caused the return to become much more frightening. And what that was was that we started to bud a lot of things into the tax system. There really weren't about taxes in preparation for, um, talking to you. I reached out to several friends of mine who had, like, you know, decades of experience, you know, were tax preparers, right? They know the taxpayer side and they know the government side. They were all saying to me, like, how can you say any of it is good? How could you come up with a story like and I'm saying, well, I want to say this and that. And they were like, well, good for you that you can come up with this story because it's not good. It's horrible.

Hannah McCarthy: [00:03:26] So today on Civics 101, we're going to talk about why our income tax system is the way it is full of complexity, difficult to navigate and extremely personal, where circumstances like who you work for, what kind of resources you have and how you spend your money are directly connected to how much you owe the government each year and what the government provides for you in return.

Nick Capodice: [00:03:52] Just to clarify, you said federal income taxes, so we're leaving states out of it. We're not talking about state local sales tax, anything like that. Right.

Hannah McCarthy: [00:04:01] Because that's a whole other subject entirely. Every state and many municipalities have their own tax system, and they vary widely. We're focused today on federal income taxes, specifically those taxes that individuals like you and me pay every year out of the money we earn. And to start, I think we should get a better sense of how much income taxes matter.

Eric Toder: [00:04:27] So the federal income tax is our largest single source of revenue for the federal government. It raises roughly 50% of of federal receipts.

Hannah McCarthy: [00:04:37] This is Eric Toder. He's an institute fellow at the Urban-brookings Tax Policy Center. He worked in tax policy for the Treasury Department, at the IRS and in the Congressional Budget Office. He also worked as a consultant for the New Zealand Treasury.

Eric Toder: [00:04:52] But there are other big taxes. The second biggest tax is the payroll tax, which people may feel is similar to an income tax because it also comes out of their paycheck. And for most people in this country, the payroll tax is a bigger tax than the income tax. The income tax is a very progressive tax. It rises steeply as a rate of tax with your income, whereas the payroll tax is a flat rate tax.

Hannah McCarthy: [00:05:19] The payroll tax is a flat tax set at 15.3%. Your employer pays half and you pay half, right.

Nick Capodice: [00:05:27] But Eric said that income tax is a progressive tax. So can you clarify for me the difference between a flat rate tax and a progressive tax?

Hannah McCarthy: [00:05:35] A flat rate tax is one that applies to everyone in the same amount, regardless of how much money they make, like Social Security. If you made anywhere from $0 to $160,000, you pay 6.2% of your income to Social Security, and your employer also pays 6.2%. If you're self-employed, you pay the full 12.4%. What makes our income tax progressive is that the more income you earn, the higher the tax rate is on that income.

Eric Toder: [00:06:07] The third biggest source, which is significantly smaller, is the corporate income tax. But that's an important part of our tax system because without a tax on corporate income, people could avoid the income tax by accumulating income within corporations. So the corporation income tax, even though it raises only about 10% of federal revenues, is an important part of our our tax system. There are other taxes, excise taxes, estate taxes, customs duties. They're they're smaller.

Nick Capodice: [00:06:38] Where does that revenue go? What kind of things does it pay for?

Hannah McCarthy: [00:06:42] It pays for the cost of running the government. It pays for all kinds of government programs, with social services being the biggest chunk, followed by defense and things like education, scientific research, infrastructure and natural resources.

Nick Capodice: [00:06:56] So I want to go back to how we got to this place. Did the framers mention this at all in the Constitution? Like, have we always had an income tax?

Hannah McCarthy: [00:07:04] We have not. The Constitution says that Congress can set taxes to, quote, pay for the debts and provide for the common defense and general welfare of the United States. But the framers favored indirect taxes like sales taxes and tariffs more than direct taxes on income.

Nick Capodice: [00:07:24] So indirect meaning like a tax on something that you're paying for and theoretically could choose to pay for rather than tax, that automatically comes out of your paycheck.

Hannah McCarthy: [00:07:33] Correct.

Nick Capodice: [00:07:34] All right. So what changed? When did we finally get a permanent income tax?

Hannah McCarthy: [00:07:39] That happened in 1913 when we ratified the 16th amendment. This amendment says the federal government has the right to impose income taxes, and, more importantly, that the federal government does not have to distribute or apportion that revenue to states based on population size.

Joe Thorndike: [00:07:57] Now, in the beginning, the tax is really narrow, only applies to a relative handful of Americans. And that's true, you know, up until the World War one. And then it gets broader and bigger. And then but it's still it's pretty minor tax. It's a rich man's burden basically. Right.

Beverly Moran: [00:08:11] Originally, and even now to some extent it's a fantasy.

Hannah McCarthy: [00:08:15] Again, this is Beverly Moran.

Beverly Moran: [00:08:17] And the fantasy that it was selling between 1913 and the 1940s was that this was a way of having some sort of income redistribution.

Hannah McCarthy: [00:08:30] But the income tax wasn't just added to the already existing taxes. The government also lowered tariffs, which are taxes on imported and exported goods. Tariffs had been a main source of revenue after the Civil War and the rise of industrialization. But with that industrialization came business owners and investors who accumulated vast sums of wealth. People who used that wealth to exploit workers, monopolize industries, raise prices, and manipulate the markets for their own gain. So in an effort to lower tariffs and redistribute wealth without making big cuts to the government's budget, Congress shifted more of the tax burden directly onto the wealthiest Americans.

Beverly Moran: [00:09:15] The taps that were only like 3% of the population even had to file. Only about 1% of the population had to pay.

Hannah McCarthy: [00:09:24] But even so, the stock market crashed in 1929, which led.

Nick Capodice: [00:09:28] To the Great Depression.

Hannah McCarthy: [00:09:29] It did indeed.

Archival Sound: [00:09:30] Prosperity is just around the corner, say the hopeful headlines. But around the corners wind, the lengthening bread lines and a whole new class of citizens appears in American society the new poor.

Hannah McCarthy: [00:09:46] Businesses failed, industries crashed. And when President Franklin Roosevelt was elected in 1933, he wasn't shy about using income tax to pay for economic recovery.

Archival Sound: [00:09:57] My friends, I still believe in ideals. I am not for a return to that definition of liberty, under which for many years a free people were being gradually regimented into the service of the privileged few.

Hannah McCarthy: [00:10:18] For example, Roosevelt introduced the Revenue Act of 1935, which was targeted specifically at the wealthiest Americans with tax rates that were as high as 75%. Wow. This helped fund the relatively new Social Security Administration, one of the New Deal welfare programs Roosevelt created after the Great Depression.

Nick Capodice: [00:10:38] And I am just trying to imagine something like a 75% income tax happening today. And I just cannot.

Hannah McCarthy: [00:10:44] By the way, at one point, the highest tax bracket only had one person, John D Rockefeller. But at the same time that the federal government was heavily taxing the wealthy, it was also creating exceptions, asterisks, things that allowed people to get out of paying taxes on their entire income. Here's Joe Thorndike.

Joe Thorndike: [00:11:07] There was one moment where where FDR says to his Treasury secretary, I'd like a list of the top 50 taxpayers in, you know, 1942. I can't remember which year it was, but roughly around then no names, of course. And then they give them a they give them a memo, which includes all the names. Roosevelt was famous for a lot of sort of anti loophole anti-tax avoidance crackdowns. And in 1937, I mean he had the Treasury write him this memo. Again. There were two versions, one that had the names and one that didn't, but they made sure that those names made their way into the public sphere and that these guys were called out for using, you know, special little loopholes to try to avoid their taxes.

Eric Toder: [00:11:48] Well, we've always had certain exceptions in the income tax system.

Hannah McCarthy: [00:11:53] This is Eric Toder again.

Eric Toder: [00:11:54] Modern federal income tax started in 1913. We had a capital gains preference in introduced in 1921. We had um, mortgage interest deductions. From the beginning, that wasn't very important because not very many people paid income tax and not very many people owned homes. The federal income tax started, but it became important later.

Hannah McCarthy: [00:12:18] It became more important when our income taxes went from something that only affected a small group of people to something that applied to nearly everyone.

Nick Capodice: [00:12:27] I'm going to go with the episode trend so far, Hannah and guests that a war had something to do with this.

Hannah McCarthy: [00:12:33] It did indeed. Once again, war.

Archival Sound: [00:12:35] No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might, will win through to absolute victory.

Hannah McCarthy: [00:12:54] Specifically World War Two, and the need to pay for it led to a major shift in our tax policy.

Eric Toder: [00:13:02] Big government really dates from the Second World War, and that was when we introduced a mass income tax that applied to the majority of Americans.

Beverly Moran: [00:13:13] And again, the income tax becomes a way of communicating certain ideas like this is like a victory garden or this is like not wearing nylons, you know, we're all in it for the war effort.

Archival Sound: [00:13:27] I paid my income tax today. I'm only one of millions more whose income never was taxed before. Art tax. I'm very glad to pay Victory Gardens.

Nick Capodice: [00:13:41] Like. That's where the government encouraged people to grow their own food to help reduce the demand needed to feed soldiers.

Hannah McCarthy: [00:13:47] Yeah, taxes were pitched in the same way. The propaganda around income taxes, like the song by Irving Berlin that you're hearing right now, were all about showing your support for the war effort by paying taxes.

Nick Capodice: [00:14:00] I got to say, it's a pretty jaunty little tune.

Joe Thorndike: [00:14:03] When the number of taxpayers increases, like sevenfold in a few years, millions of new people start paying the tax. They. The saying is that it went from being a class tax to a mass tax, and that's when the Bureau of Internal Revenue became a fact of life for regular Americans, for middle class Americans in particular.

Hannah McCarthy: [00:14:25] Like the previous income tax, the expanded mass income tax was a progressive graduated tax. The higher your income, the higher your income tax rate.

Nick Capodice: [00:14:36] All right. So how did the Bureau handle this huge new tax base? Well, it.

Hannah McCarthy: [00:14:40] Got help from the Social Security Administration which introduced Social Security numbers. So the Bureau of Internal Revenue could keep track of people's identities and income. And Congress also made it possible for the Bureau of Internal Revenue to collect those taxes from someone's check before payday.

Beverly Moran: [00:14:59] I think every kid has this experience, right. You get a job, you're told you're going to get paid $100. You get the check. The check is $80. Like, where did that $20 go? But it's withholding. So, you know, when you think about it, when all this is going on, there are no computers. There's, um, you know, there's no internet, right? They're barely like telephones. So withholding serves a lot of purposes. One of which, from the government point of view, is fewer people to deal with. If I can deal with Smith's Grocery. That represents 20 people. That's much easier for me than dealing with all the 20 people who work in Smith's Grocery. And so the whole thing was pretty easy to do. All right, so.

Nick Capodice: [00:15:47] This sounds pretty basic. Most people paid an income tax, but a lot of times it just came right out of their paycheck. So how do we go from that to what we have now, where a tax return has all of these components in it?

Archival Sound: [00:16:01] The total amount of income is not taxed. However, as each person is allowed certain deductions, you can deduct portions of medical and dental expenses.

Eric Toder: [00:16:10] One reason it's complicated and isn't as complicated in some other other countries is we've tried to use the tax system for many different things other than raising revenue.

Archival Sound: [00:16:20] Charitable contributions, interest payments, certain taxes, and so on.

Eric Toder: [00:16:24] The federal government has decided it wants to encourage certain activities, wants to help people save for retirement. It wants to encourage them to give money to charities. Some of these programs could have been done by appropriations, but instead they're done through forgiving tax.

Nick Capodice: [00:16:42] What does he mean by that? Can you give me like an example?

Hannah McCarthy: [00:16:44] Let's start with World War Two. In 1942, Congress gave President Roosevelt the power to freeze wages, and he introduced a maximum wage of $25,000.

Archival Sound: [00:16:57] Taxation is the only practical way of preventing the incomes and profits of individuals and corporations from getting too high.

Hannah McCarthy: [00:17:05] Essentially, any income you made over $25,000 was taxed at nearly 100%.

Archival Sound: [00:17:13] The nation must have more money to run the war. People must stop spending for luxuries. Our country needs a far greater share of our income.

Hannah McCarthy: [00:17:27] But and here's where things get interesting. That wage cap applied to pay salary commissions, bonuses, but it did not apply to other kinds of compensation like insurance and pension benefits.

Eric Toder: [00:17:44] When wages were capped, employers, in order to compensate their employees, started introducing health benefits. Retirement benefits. The federal government wanted to encourage these things, so the amount of income you get in the form of employer contributions to health insurance is exempt from federal income tax.

Hannah McCarthy: [00:18:07] Especially because the employer also did not have to pay taxes on any income they spent on those kinds of programs.

Eric Toder: [00:18:16] Which encourages employers to provide health insurance to their employees.

Nick Capodice: [00:18:22] Is this unique to the United States? I mean, employer provided health care is one of those things that's now kind of the norm and the backbone of our health care system. And saving for retirement through work is, for most people, the only way they're able to retire. But I know that's not the case elsewhere. So what's different about our tax policy than other countries?

Eric Toder: [00:18:44] Okay, so there are some very big differences. One is we don't have a national sales tax at the federal level. And we generally even including states, we rely a lot less on consumption taxes than than other countries. That means our tax system probably overall is a little bit more progressive than the tax systems in Europe.

Hannah McCarthy: [00:19:08] One way to think of this as more progressive is if there is a high sales tax on something, no matter how much money you earn, you pay that sales tax. Whereas theoretically the burden of the income tax is higher if you make more money.

Eric Toder: [00:19:24] But oddly enough, our fiscal system is less progressive. The reason I say this is they have these value added taxes, but they have much more generous social benefits, health benefits and so forth. So in a sense, we rely more on taxes for redistribution. They rely more on spending programs.

Hannah McCarthy: [00:19:45] So even though other countries may charge greater taxes on consumption, they also often spend more on programs that save people money or reduce their expenses. For example, the cost of health care.

Eric Toder: [00:19:58] All the systems use some tax expenditures. I think, you know, our exemption of employer premiums is probably unique to our system because in other other systems, they have more public funding of health care. So you don't need to have this encouragement of the employer system.

Hannah McCarthy: [00:20:19] So it's hard to compare income taxes across countries. But people in Denmark pay almost half of their income in taxes. And Denmark also has some of the highest consumption taxes, taxes that you pay when you buy something or go out to eat, which the United States has kept relatively low. High consumption taxes are also the norm in countries like Germany, Finland, Sweden, Norway.

Beverly Moran: [00:20:42] So how can it be that you have people who aren't making very much money, are paying a very high tax rate and are paying taxes that, um, in the United States, we say are taxes that hurt the poor. Well, the reason is that they are actually providing tremendous benefits to their people outside of the tax system. Anybody who's a resident of Germany can go to college for free in, um, Scandinavia. You can get you are on health care for free. You're able to have a maternity leave you I mean all sorts of things that in the United States it's all like it's on you, right? Your retirement is on you. Are you saving for it or are you not saving for it? You know, your maternity leave is between you and your employer. It's all fragmented. And in those countries they can do their taxes in less than two hours. Some of them don't do it at all, right? They just get like a letter from the government. This is what you owe. This is what you paid. Here's a check for the difference. Thank you very much. The reason why it's so complicated in the United States is because certain people are advantaged by the fact that it's complicated.

Hannah McCarthy: [00:22:11] We'll be right back after this break.

Nick Capodice: [00:22:14] But real quick, if you like our show, or even if you don't do Hannah and I a favor and leave us a review on Apple Podcasts or wherever you listen to your podcasts, it helps make our show better. It helps other people see our show and see what it's about. And we read every single one, truly. Every single one. So do it. It means a lot to us and thank you.

Hannah McCarthy: [00:22:33] And if you want to learn more about the IRS and how to successfully file your taxes for all of those procrastinators out there, check out that podcast feed because we have got a whole podcast on it. We dropped it the same day as this little guy.

Nick Capodice: [00:22:48] So we've been talking about why our income taxes here in the US are so complicated. And so far we have heard about how the government started using the tax code to shift behavior without passing laws like incentivizing employers to provide health insurance and retirement plans. So what are some of the other carrots that the federal government has added to the tax code?

Hannah McCarthy: [00:23:09] Hannah, there are two main kinds of incentives deductions and credits. We're going to talk about deductions. First, here's Eric Toder.

Eric Toder: [00:23:19] Deductions reduce the amount of income on which you pay tax. So if I have 50,000 of income and then I get 10,000 of deductions, that reduces the amount of income I have to report to 40,000. So there are certain items that, for example, uh, home mortgage interest or state and local income taxes or charitable contributions, which are the biggest, which you can claim as a deduction or subtract that from the income which is subject to tax.

Nick Capodice: [00:23:51] So every year you have to figure out which deductions you might qualify for, and then find out how much of a deduction it would be and send all of that information to the IRS.

Hannah McCarthy: [00:24:02] If you go the itemized deduction route. Yes. But there is another option.

Eric Toder: [00:24:08] However, you can also claim a standard deduction. So depending on your marital status you can deduct a certain amount in lieu of taking itemized deductions. So what you want to do is figure out whether your itemized deductions total up to more than the standard deduction. And if they do, you itemize. And if you don't, you take the standard deduction.

Hannah McCarthy: [00:24:30] Sometimes that itemized deduction is going to be more than a standard deduction, especially if you say own multiple properties or give to multiple charities. Or if you have set up a charitable foundation in your name.

Eric Toder: [00:24:45] Most people take the standard deduction. Most high income people use itemized deductions.

Hannah McCarthy: [00:24:53] Unlike deductions, which lower your taxable income credits lower your tax bill. That's the amount you have to pay after deductions are factored in.

Eric Toder: [00:25:01] If I were paying $500 of tax and I get a tax credit of $150, that would reduce my tax to 350. So it just comes right off of the tax.

Hannah McCarthy: [00:25:13] And many times that credit ends up showing up as a refund after you file your taxes. Basically, the government says you overpaid this year. Here's some money back.

Nick Capodice: [00:25:22] Is it possible to earn more in tax credits than you paid in taxes?

Hannah McCarthy: [00:25:26] Okay, this is where tax credits get a little sticky. The answer is sometimes some credits are refundable, meaning that if the value of the tax credit is more than you owe in taxes, you have a negative tax bill.

Nick Capodice: [00:25:40] In other words, you get money instead of paying money.

Hannah McCarthy: [00:25:42] That's it. So if your tax bill was $500 and you had $600 in refundable tax credits, you would not owe any taxes and you would get $100. One of the main tax credits that is refundable is the earned income Tax Credit, which is specifically for people with lower incomes. But you have to have actually earned an income to qualify.

Nick Capodice: [00:26:03] But not all credits are refundable, right?

Hannah McCarthy: [00:26:05] Many of them are not.

Nick Capodice: [00:26:23] I think I've got it. So how did these tax credits even end up in our tax policy? They seem complicated, like with that earned income tax credit, why not just lower the tax rate for people who make under a certain amount?

Hannah McCarthy: [00:26:52] The answer is simple politics.

Eric Toder: [00:26:55] So we all have different views of what public benefits uh, the government should supply. We all have different views of how big the government should be. Your purchase of public goods through taxes is mandatory. So this is the one place where the government is taking something from you, as well as supplying you with something. So naturally, the question is who should it take from? How should that burden be shared upon those? Those are basically political questions.

Hannah McCarthy: [00:27:26] And with that earned income tax credit and other tax credits designed to help people with lower incomes, in particular, the politics have shifted a lot in the last couple of decades.

Nick Capodice: [00:27:37] How so?

Hannah McCarthy: [00:27:38] Well, remember how we talked about the New Deal ushering in all of these government programs to help support people while the country recovered from the Great Depression? Yeah.

Archival Sound: [00:27:48] The remaining costs of government may be considered under general welfare. Social security programs provide retirement income for the elderly, financial support for widows, children, and others who've lost their means of support, as well as aid to the disabled and unemployed.

Hannah McCarthy: [00:28:04] In the last 30 years or so, a lot of these programs have transitioned from government expenditures to tax incentives instead. The 1980s were the era of Reaganomics, when the Reagan administration proposed streamlining the tax system by removing a lot of incentives while also cutting taxes across the board.

Archival Sound: [00:28:26] When I signed this bill into law. America will have the lowest marginal tax rates and the most modern tax code among major industrialized nations.

Hannah McCarthy: [00:28:36] But especially for businesses and the wealthiest Americans.

Archival Sound: [00:28:40] One that encourages risk taking innovation and that old American spirit of enterprise.

Nick Capodice: [00:28:46] All right. So this is the so-called trickle down economics.

Hannah McCarthy: [00:28:49] Yep. This was also called supply side economics. And the theory was that if you cut taxes for businesses and for people with wealth to invest, they would invest that money back into the US economy rather than pocketing it. And after a lot of this reform and these massive tax cuts, as we're coming out of the 80s, the political debate about how big the government should be and what it should pay for was centered on the value and logistics of welfare programs.

Archival Sound: [00:29:18] More must be done to reduce poverty and dependency. And believe me, nothing is more important than welfare reform.

Speaker7: [00:29:24] One is the whole issue of welfare reform, and more broadly, how we help people to lift themselves out of poverty and dependance. It's time to.

Speaker8: [00:29:31] Make welfare what it should be a second chance, not a way of life.

Hannah McCarthy: [00:29:36] President Bill Clinton ran on a policy of welfare reform when he was elected in 1992.

Eric Toder: [00:29:41] The incentives for retirement saving were greatly expanded. The earned income credit was introduced and then greatly expanded. The child credit was introduced. That was at the same time where aid for families with dependent children was repealed, and welfare reform in 1996. So our system really moved more toward using the tax system for spending like programs.

Hannah McCarthy: [00:30:07] And Eric worked in the Clinton administration on some of the new policies that focused on taxes.

Eric Toder: [00:30:13] When I was in the Clinton administration, and we decided for political reasons, we had to have a middle class tax cut. Well, I think the main view was essentially government spending has a bad name, and politicians wanted to keep what the public perceived to be the size of of the government low and to provide more tax cuts, middle class tax cuts, other kinds of tax cuts. And so the way you could do this while still providing government social benefits was to provide, uh, credits and so forth through the tax system. So if we lowered rates a little bit, it just cost too much money. You couldn't you couldn't lower rates across the board. So that said, we had to give some kind of credits or some benefits. So people had talked about a child credit. And the number that Republicans had race was $500. So we said, well, we have to have $500. It can't be less than $500.

Hannah McCarthy: [00:31:19] He's talking about the Balanced Budget Act of 1993. The way that worked is that families could get a $500 tax credit for every child they had under the age of 17. So when you filled out your taxes, if you had a kid under age 17, you'd have 500 bucks taken off your tax bill.

Eric Toder: [00:31:36] Well, how do we save money if it's $500? Well, we have to phase it out. If people's income is above a certain amount and maybe we want to limit it instead of with personal exemptions, which was 18, maybe we ought to limit it to people under 17. And you get the picture. You go through one contortion after another to hit these various targets for how you're changing the system. And those things just stay in there.

Nick Capodice: [00:32:11] I'm beginning to see how we ended up with such a complicated system. Hanna.

Hannah McCarthy: [00:32:15] And this changed the experience of people who used these programs, in part because for both deductions and tax credits, there's a responsibility on you, the taxpayer, to make sure you fill out the right paperwork and get those incentives.

Beverly Moran: [00:32:29] When the Clinton administration decided that it was going to kill welfare as we know it, right, that was one of the phrases to get rid of welfare as we know it.

Archival Sound: [00:32:40] I have a plan to end welfare as we know it, to break the cycle of welfare dependency.

Beverly Moran: [00:32:44] So you don't really have welfare offices anymore. People don't really use the word welfare. That all seems to have disappeared. But the money is still flowing to people. But now it's flowing to people through the tax system. If you hide it in the tax system, what you're doing is you're replacing social workers with H&R block.

Hannah McCarthy: [00:33:11] Like Eric said before, many of the things treated as apportionment, that is, the government sets up programs and funds them directly were now offered as relief from your tax bill instead. And all of these things just keep being added to the tax code to make it work.

Eric Toder: [00:33:28] The system is much more complicated than it needs to be and could use an overhaul. Uh, I mean, there are, you know, when you look at something like retirement plans, there are multiple different ways you can contribute. And for the average person to figure out how to navigate through these systems, even the the programs for low income people like the education credits, many people just don't use them because they can't figure out how to navigate them in order to fine tune things. We make things way more complicated than it needs to be.

Beverly Moran: [00:34:02] For a lot of people. It's terrifying. You know, they they don't have the time. They don't have access to the things that they would need, even if they have access to the things that they would need, the things that they would need are crazy complicated. The IRS produces all these, um, instruction booklets, right? That could take their like, war and peace. They use all sorts of of language that makes sense to tax insiders, but doesn't necessarily make sense to anyone else. And so either you're going to like, engage in that system and get the money that the government wants you to have. Right. Or you're going to, like, not engage with that system and maybe end up in prison.

Nick Capodice: [00:35:02] Well, that's enough.

Nick Capodice: [00:35:03] Death and taxes today. This episode was written and produced by Christina Phillips with me, Nick Capodice and Hannah McCarthy. Our staff includes Jackie Fulton and Rebecca LaVoy is our executive producer. Music. In this episode by the guy who wrote God Bless America, Irving Berlin, Jesse Gallagher, Raymond Gross, Gridded Blue Dot sessions, César Lee, Rosevere Lobo, loco Nicodum, pictures of a Floating World, Proleter, Scott McCloud, Cooper Canal, Balla and the Tax Free Musical Stylings of Chris Zabriskie. Civics 101 is produced by that station, who I hope is kicking in there. 6.2%, NPR, New Hampshire Public Radio. I'm just kidding. Of course they are.

What is the 25th Amendment?

Sometimes, news happens in the real world, and suddenly a political or civics topic becomes very top of mind for members of the public. And when that happens, we at Civics 101 often say, hey…we have an episode about that.

One of those conversations happened this week, after a tweet from President Trump related to the war in Iran had some conservative, traditionally pro-Trump voices evoking a specific part of the Constitution - the 25th Amendment.

Back in 2022, we made an episode breaking down the 25th Amendment, and it’s pretty thorough about its history and what it means. So, given that it’s on folks’ minds right now, we’ve decided to drop that episode again.
When a monarch dies, power stays in the family. But what about a president? It was a tricky question that the founders left mostly to Congress to figure out later. Lana Ulrich, of the National Constitution Center, and Linda Monk, constitutional scholar and author of The Bill of Rights: A User's Guide, explain the informal rules that long governed the transition of presidential power, and the 25th Amendment, which currently outlines what should happen if a sitting president dies, resigns, or becomes unable to carry out their duties. 

Click here for more charts of Civics 101 episodes by Periodic Presidents!

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TRANSCRIPT

Nick Capodice: [00:00:00] Hannah we have made a lot of episodes of Civics 101 since the show started in 2017. And at any one time we've got a list of 20 to 30 different topics that were either already working on or want to do soon. And yet there are few topics we keep coming back to over and over.

Hannah McCarthy: [00:00:21] Yeah, I mean, elections and voting, those are two I can think of. Yeah, we could probably fill a dozen episodes with things about the election process, the politics of voting, of representation.

Nick Capodice: [00:00:33] Yeah, there's one topic we've talked about multiple times on the show because it keeps coming up in the news during the presidencies of both Donald Trump and Joe Biden.

News Clip: [00:00:41] Have you emailed any members.With the investigative.Branch about.The President's health or the president's decline?Do you believe he's capacitated? Well, I think that we have got to be very careful. He needs to start.

Nick Capodice: [00:00:54] It has to do with presidential power and checks on that power.

News Clip: [00:00:58] The fish stinks from the head. Plain and simple. And so I believe the president is dangerous and should not hold office one day longer.

Nick Capodice: [00:01:09] But it's not impeachment. It has to do with the responsibility of the president, the vice president, and the cabinet to ensure we have a leader who is able to do their job.

News Clip: [00:01:20] I'm not saying he's not a danger. I do believe that there's grave risk there. But we've got 13 days.

Nick Capodice: [00:01:27] We're talking about the 25th Amendment.

News Clip: [00:01:30] People inside the.Administration, people in the cabinet were whispering about invoking the 25th Amendment. It's staggering. We're not at a 25th Amendment level yet.

Nick Capodice: [00:01:47] This is Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:01:49] I'm Hannah McCarthy.

Nick Capodice: [00:01:50] And today we are going to break down the 25th Amendment. This is the amendment that lays out what happens when, for whatever reason, the president cannot perform the duties of that office. And there are four parts to this amendment. The first part deals with the line of succession. The second is about replacing the vice president. The third is about when the president declares their own inability. And the fourth, the most debated, is about the vice president and cabinet's power to declare presidential inability. So today, we're going to explore what this 25th Amendment thing is all about anyway, and why Part four especially, is not as straightforward as it seems.

Nick Capodice: [00:02:28] And to do that, we need to go back to the beginning, to the creation of the Constitution, because there was a lot of time between then and when the 25th Amendment was actually ratified in 1967, the year was 1787, a bunch of men and Whigs were crowded in a room in Philadelphia debating how our government should work. And as it is often said, it was hot. Very odd. We're talking about the Constitutional Convention. And one subject of debate was what do we do if something happens to the president?

Lana Ulrich: [00:03:11] Well, they were debating exactly how they should frame the language addressing presidential succession in the Constitution. And they went back and forth as to how to say, you know, what happens when the president becomes disabled? Should there be an election? Should there not be an election?

Nick Capodice: [00:03:27] This is Lana Ulrich. She's the vice president of content and senior counsel at the National Constitution Center.

Lana Ulrich: [00:03:34] So they finally settled on the language that is included in the original Constitution and Article two, Section one, clause six, which says in case of the removal of the president from office or of his death, resignation or inability to discharge the powers and duties of the set office, the same shall devolve on the Vice President and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and the Vice President declaring what officer shall then act as president and such office shall act accordingly until the disability be removed or a president shall be elected. And that seemed to clarify a bit as to what would happen, but it didn't answer all of the questions. And there was one delegate in particular, Dickinson, who was taking notes during the debate and sort of wrote to himself, what is the extent of the term disability and who is to be judge of it?

Nick Capodice: [00:04:29] John Dickinson, who represented Delaware at the Constitutional Convention, was a supporter of the Great Compromise. This is what gave smaller states equal representation to larger ones in the Senate and proportional representation in the House. And that word disability is very, very complicated. Throughout U.S. history, there have been deeply ingrained societal prejudices and discrimination towards people who have disabilities or require accommodations. So that word carries a lot of weight.

Hannah McCarthy: [00:05:00] So basically, the only real things the Constitution said at the time were that if something happened to the president, the vice president would take over the president's duties and that Congress was in charge of figuring everything else out, correct? Yeah.

Nick Capodice: [00:05:17] The Constitution left Congress to iron out many of the logistics of presidential succession, but it also failed to answer the question what does it mean for the president to be unable to carry out their duties? And perhaps even more importantly, who determines that the first piece of legislation that Congress passed that clarified the logistics of succession was the Presidential Succession Act of 1792, which basically laid out what would happen if both the president and vice president were unable to carry out the duties of the presidency.

Lana Ulrich: [00:05:50] And so something that is debated to this day. Now, what laws did Congress pass to help build on what was laid out in the Constitution?

Nick Capodice: [00:06:02] The first thing Congress did pertaining to that was to pass the Presidential Succession Act of 1792, which basically laid out what would happen if both the president and vice president were unable to carry out the duties of the presidency.

Lana Ulrich: [00:06:16] Under the first Presidential Succession Act. It was the president pro tempore of the Senate and then followed by the Speaker of the House.

Nick Capodice: [00:06:23] But at the time, the law still stated that whomever replaced the president would serve as, quote, acting president until the next election.

Hannah McCarthy: [00:06:32] What is the difference between acting president and just president?

Nick Capodice: [00:06:37] That's the thing. The word acting suggested that there was some distinction between the two, but those distinctions weren't actually written out. And then John Tyler came along. And as so often happens, when you put a rule into practice for the first time, you realize that your interpretation is not the only interpretation.

Lana Ulrich: [00:06:57] Right. So William Henry Harrison was the first president to die in office, and he died on April 4th, 1841. His vice president, John Tyler, basically just insisted that he became president of the United States and was not merely acting president.

Nick Capodice: [00:07:12] Right off the bat, John Tyler seemed pretty eager to move into the White House and disregard the cabinet that his predecessor had appointed. And he told the cabinet, quote, I shall be pleased to avail myself of your counsel and advice, but I can never consent to being dictated to as to what I shall or shall not do. I, as President, will be responsible for my administration. And then he basically said that if they didn't agree with that, they were welcome to resign. And some people felt that this was a misinterpretation of what it means to be an acting president.

Lana Ulrich: [00:07:46] This became known as the quote unquote, Tyler precedent. And it was pretty controversial. And not everyone agreed that the vice president automatically became president, even if the president died in office. Even former President John Quincy Adams wrote to himself, I paid a visit this morning to Mr. Tyler, who styled himself president of the United States and not vice president, acting as president, which should be the correct style.

Nick Capodice: [00:08:10] Former President Harrison's cabinet had understood that the president would only do things if the majority of his cabinet approved of them, and they expected Tyler to follow the same rule as acting president, that he would consult them, trust their judgment, and wouldn't make decisions unless they approved.

Hannah McCarthy: [00:08:26] But this wasn't Tyler's cabinet, right? These were people appointed by Harrison.

Nick Capodice: [00:08:31] Yeah, they weren't his people. And to be frank, there was no love lost there.

Lana Ulrich: [00:08:35] Yeah. I mean, I think there were some that may have agreed with his interpretation, but as you know, John Quincy Adams did not. But Tyler basically took the oath of office. He gave an inaugural speech and he moved into the White House. And so there just to quell any doubts that he was, in fact, president, they were they were silenced at that time.

Nick Capodice: [00:08:55] And this is how we end up with the Tyler precedent, where the line between president and acting president is pretty much nonexistent.

Hannah McCarthy: [00:09:05] What about those times when the president is not obviously permanently out of office either because they've died or resigned? What if the president gets sick or has an ongoing medical issue?

Lana Ulrich: [00:09:19] There were sort of unspoken norms about what would happen if, at the same time if a president became disabled. And throughout history there were many presidents who were quietly incapacitated and due to many reasons, including the fact that there was no constitutional mechanism in place, they just kind of worked quietly behind the scenes to keep his illness under wraps until the next election. I mean, this happened with Woodrow Wilson, had a severe stroke and for a long period of time toward the end of his term, he was essentially not acting as president. But basically his wife and his cabinet were just kind of acting in his stead. Yeah.

Nick Capodice: [00:09:53] And this informal behind closed doors method of the vice president, the cabinet, even the president's spouse was working well enough, even though Congress wasn't really privy to it and didn't have much power over it. There wasn't enough urgency in Congress to rally behind something like a constitutional amendment until the threat of nuclear war came along.

Lana Ulrich: [00:10:17] Right around the time of President Eisenhower, who was also ill.

News Clip: [00:10:21] Stricken with ileitis, an inflammation of the lower intestine. The 65 year old chief executive was taken from the White House.

Lana Ulrich: [00:10:27]  Which coincided with the Cold War.

News Clip: [00:10:29] Soviet Unionn Has informed us That over recent years It has devoted extensive resources to atomic weapons.

Lana Ulrich: [00:10:38] It became clear that we needed something that was a bit more formalized.

Nick Capodice: [00:10:42] Nothing really happened immediately, though. There was a proposed amendment in 1963 that would give Congress the power to determine if the president was unable to discharge their duties. But many argue that it gave Congress too much power, especially considering that Congress already had the power of impeachment.

Lana Ulrich: [00:10:59] And I think the crucial moment in time was after President John F Kennedy was assassinated.

News Clip: [00:11:05] From Dallas, Texas. The flash apparently official. President Kennedy died at 1 p.m. Central Standard Time, 2:00 Eastern Standard Time, some 38 minutes ago. Vice President Lyndon Johnson has left the hospital in Dallas, but we do not know to where he has proceeded. Presumably, he will be taking the oath of office shortly and become the 36th president of the United States.

Linda Monk: [00:11:41] And then Lyndon Johnson was in office without a vice president and he had a history of heart attacks.

Nick Capodice: [00:11:48] This is Linda Monk, constitutional scholar and dear friend of the podcast and author of The Bill of Rights A User's Guide. We have finally reached the 25th Amendment, which gives clearer rules about what to do if the president cannot carry out their duties.

Linda Monk: [00:12:03] So that's when Congress in 65 finally passed it through Congress, and then it was ratified, I believe, in 67.

Hannah McCarthy: [00:12:11] So this amendment does not come up until after we have had several presidents die or have major illnesses while in office.

Nick Capodice: [00:12:20] Yeah, And John F Kennedy's death, which made Lyndon Johnson president, put the issue of succession at the top of people's minds. The amendment was ratified in 1967. Here is Lana Ulrich again.

Lana Ulrich: [00:12:33] And so when President Nixon resigned in 1974, Vice President Ford became president under Section one.

News Clip: [00:12:40] To continue to fight through the months ahead for my personal vindication. Would almost totally absorb the time and attention of both the president and the Congress in a period when our entire focus should be on the great issues of peace abroad and prosperity without inflation at home. Therefore, I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as president at that hour in this office.

Hannah McCarthy: [00:13:19] But what if the vice president vacates the job? Because in that example, Gerald Ford was not Nixon's original vice president. He became vice president after Spiro Agnew resigned.

Nick Capodice: [00:13:42] Well, that's part two of the 25th Amendment.

Lana Ulrich: [00:13:44] So this requires the president to nominate a vice president when the office is vacant, subject to the confirmation by a majority of the House and the Senate.

News Clip: [00:13:55] Mr. Nixon has asked the Republican hierarchy to propose possible successors by tomorrow evening. His choice and many names are being mentioned tonight, will have to be approved by majority vote of each House of Congress.

Lana Ulrich: [00:14:08] So in 1973, Gerald Ford became vice president through Section two. After Vice President Spiro Agnew resigned. And then when Ford took over the presidency the next year, he invoked Section two and nominated Nelson Rockefeller to fill his vice presidential vacancy.

Nick Capodice: [00:14:26] And now we're going to get into those circumstances where the president hasn't died, but for some other reason, they are unable to do the job, either temporarily or permanently. And this is section three. Section three is about the president's responsibility to decide and disclose when they need to give their duties to the vice president. This is known as a voluntary transfer of power.

Hannah McCarthy: [00:14:49] So if the president needed a colonoscopy, for example.

Nick Capodice: [00:14:52] Exactly. Actually, most examples of this happening have to do with colonoscopies, specifically. For example, President George W Bush invoked Section three when he had to undergo colonoscopy, putting Vice President Dick Cheney temporarily in charge.

Lana Ulrich: [00:15:07] In 1985, President Ronald Reagan was also about to undergo colon cancer surgery. And so he designated Vice President George H.W. Bush to be acting president.

Nick Capodice: [00:15:18] And recently, President Biden discharged his duties to Vice President Kamala Harris.

Hannah McCarthy: [00:15:22] Because of a colonoscopy.

Nick Capodice: [00:15:24] Because of a colonoscopy.

Hannah McCarthy: [00:15:29] And this is the responsibility of the president, right? They have to be the one who says, okay, I'm going to transfer power right now.

Lana Ulrich: [00:15:35] You one would assume so. Yes. Since it's since it requires a written declaration to both transfer the power and then to resume power after the president's disability is removed. Yes.

Hannah McCarthy: [00:15:46] Isn't that interesting the way that Lana says one would assume so. I think the implication there being, as with so many wishy washy interpretations of the Constitution or.

Nick Capodice: [00:15:59] Flat out disregard of it.

Hannah McCarthy: [00:16:00] Disregard for the Constitution, the idea is, you know, this is how it has happened and might happen in the future, but anything can be done differently. And sometimes we do things differently and that can cause a constitutional crisis. So this is all voluntary.

Nick Capodice: [00:16:18] Yeah. And this is called a declaration of inability, where the president submits a notice to Congress saying presidential power is being discharged to this person, either permanently or until such and such a time. And if the president submits that, they then submit a follow up declaration when they are able to retake their duties. And this has been used, as we said, several times by different presidents.

Hannah McCarthy: [00:16:42] What about an involuntary transfer of power? Is it possible for a sitting president to be removed involuntarily without an impeachment?

Nick Capodice: [00:16:51] This brings us to the quite complicated part four of the 25th Amendment, and we're going to talk about that right after this break.

Hannah McCarthy: [00:17:00] But before we go, I have a feeling you're listening to this podcast because you want to know more about American democracy, but we don't tell you everything on the podcast. We sure don't. A lot of it gets cut in actual fact, sometimes the very best parts. But we have a place to put that. It's called Extra Credit. It's our newsletter and you could subscribe to it at our website, civics101podcast.org.

Hannah McCarthy: [00:17:26] We're back. This is civics one on one. And we are talking about what happens when the president dies, resigns, or decides they need to temporarily hand over their presidential duties to the vice president for a medical procedure or something like that. But those processes are not the reason why. About two years ago, in the beginning of 2021, everyone was suddenly talking about the 25th Amendment in terms of the vice president or the president's own cabinet taking away the president's power. Specifically, I'm talking about a lot of people wondering whether former President Donald Trump's vice president and cabinet might declare that he was incapable of doing his job, which of course, did not happen.

News Clip: [00:18:08] But in the immediate aftermath of January 6th, members of the president's family, White House staff and others tried to step in to stabilize the situation, quote, to land the plane before the presidential transition on January 20th. You will hear about members of the Trump cabinet discussing the possibility of invoking the 25th Amendment and replacing the president of the United States.

Hannah McCarthy: [00:18:36] So what does the 25th Amendment say about those situations where the removal of power might not be voluntary?

Lana Ulrich: [00:18:48] Yeah. So section three is the voluntary transfer of power. But Section four details what happens when there may need to be an involuntary transfer of power when the president, for it's assumed medical reasons, is unable to make that conscious decision, whether he's in a coma or whether he has maybe a very severe mental impairment progressed dementia. In that situation, it allows for the vice president to be the crucial decider, essentially, and working with either the heads of the cabinets, the heads of the departments and or a disability review body that Congress may establish to determine that the president is no longer able to fulfill his duties and therefore trigger Section four and the mechanisms by which to involuntarily take power away from the president.

Nick Capodice: [00:19:40] That is Lana Ulrich, again, of the National Constitution Center. And this is Linda Monk, again, constitutional scholar and author of the Bill of Rights A User's Guide.

Linda Monk: [00:19:48] We talk about disability as though it's physical disability, but I think what the controversy about President Trump is raising is whether or not the president is capable of caring. Now, maybe that's not a physical disability, maybe that's other kinds of capabilities.

Hannah McCarthy: [00:20:09] So who gets to make that call?

Lana Ulrich: [00:20:10] Yeah, under Section four, the vice president is really the the one who starts the process to determine that the president is is disabled. And then if the president has the opportunity to contest that, but then the vice president and the department heads can go back to Congress and contest the president's contesting essentially as well. And so and if they're successful, then the vice president becomes acting president.

Linda Monk: [00:20:35] The language is, is that a majority of the cabinet and the vice president have to be involved. If it starts within the executive branch, if the president doesn't go along, it goes to Congress anyway. And it has to be a two thirds vote. That's a pretty big vote.

Hannah McCarthy: [00:20:56] So this is not something the vice president or the cabinet can do without the approval of Congress.

Lana Ulrich: [00:21:02] You know, we have impeachment, and that's a political process for removing the president. And I think that the 25th Amendment contemplates some kind of of disability other than, you know, the president is, you know, maybe did something illegal, is is just not performing well. There's got to be something else there. But it's it's not ultimately up to, say, the White House doctor to make that decision. I think the vice president may certainly consult with the president's doctors and ask for an opinion. But ultimately, I think it does boil down to a political decision to actually take that step, to say, okay, we're going to invoke Section four of the 25th Amendment.

Hannah McCarthy: [00:21:42] Has that ever happened?

Lana Ulrich: [00:21:43] No, it hasn't. And it's controversial for many reasons. One being that it takes power away from a duly elected president, essentially, but the other is that it's never been invoked. So we don't really know how the procedure and the practice will play out. And there are a number of gaps that are still left open. So there's a lot of open questions under this mechanism.

Nick Capodice: [00:22:04] For example, during Ronald Reagan's presidency, some of his aides suspected he had developed symptoms of Alzheimer's that were compromising his ability to do the job.

Lana Ulrich: [00:22:14] Some of his aides had discussed that among themselves, I think especially after Iran-Contra happened.

News Clip: [00:22:20] Good evening. I know you've been reading, seeing and hearing a lot of stories the past several days attributed to Danish sailors, unnamed observers at Italian ports and Spanish harbors and especially unnamed government officials of my administration. Well, now you're going to hear the facts from a White House source and you know my name.

Lana Ulrich: [00:22:40] And they briefly discussed it. And then I think they decided to do a case study and they went the next day and spoke with with the president and sort of interviewed him. And then they decided, well, he was acting completely normal. And so they felt that it wasn't appropriate at that time to invoke Section four. But they but they had kicked the idea around.

Hannah McCarthy: [00:22:59] Why would members of the executive branch, like the vice president or the Cabinet, choose to invoke the 25th Amendment instead of handing over things to Congress for impeachment?

Lana Ulrich: [00:23:10] You know, we have impeachment. And that's a political process for removing the president. And I think that the 25th Amendment contemplates some kind of of disability other than, you know, the president is, you know, maybe did something illegal, is is just not performing well. There's got to be something else there.

Linda Monk: [00:23:28] You know, our framers were very good at putting stumbling blocks to the exercise of power. And the reason you'd want to start with any kind of removal from office, from within the executive branch is because those people are supposed to be at least by constitutional duty, most. Oil to the president. This must be a blow to the Constitution and the country first. But they wouldn't have gotten there without the president. So you think those would be the people who would be most capable of making that determination without political motivation?

Nick Capodice: [00:24:03] For example, in 2021, some members of Congress and the public called on Vice President Mike Pence to invoke the 25th Amendment because of President Donald Trump's potential responsibility in and handling of the January 6th riot on the Capitol during the certification of the election.

News Clip: [00:24:21] He may have only 13 days left as president, but yesterday demonstrated that each and every one of those days is a threat to democracy. So long as he is in power. The quickest and most effective way to remove this president from office would be for the vice president to immediately invoke the 25th Amendment.

Linda Monk: [00:24:46] Either way, it's going to come back to Congress. It's going to come back to the leadership in Congress and the vice president.

Nick Capodice: [00:24:54] But at the end of the day, that question that John Dickinson scrawled in his notes back in 1776 at the Constitutional Convention, what is the extent of disability and who is to be the judge of it is still up for debate.

Lana Ulrich: [00:25:10] Yes, it's definitely still an open question. And I think it's going to depend on maybe, you know, obviously a future situation that would call for the application of the amendment to see how it kind of plays out in real life.

Linda Monk: [00:25:23] Again, this is where I think Alexis de Tocqueville said it never ceases to amaze him how wonderful the Americans were at ignoring and avoiding the contradictions of their constitution. So oftentimes in our constitutional interpretation, it's what the political actors choose to do. And that that is part of the Constitution. It's not just supposed to be automatic words on paper. It's people exercising their judgment.

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