Right to Privacy: Griswold v Connecticut

Despite the fact that they were written in the late 19th century, morality laws were still on the books in the United States in 1965. In Connecticut, one such law prohibited the discussion, prescription and distribution of contraception. After years of trying to get the courts to scrub this law from the books, medical providers had to find a way to get the question before the highest court in the land. It wouldn’t be easy, but in the end the case would transform our notion of privacy and the role of the Supreme Court when it comes to public law.

Renee Cramer of Drake University and Elizabeth Lane of Louisiana State are our guides.

 

Transcript:

Hannah McCarthy: [00:00:03] A quick heads up, we're about to talk about a Supreme Court case that acknowledges the existence of sex, reproduction and birth control. Nothing too detailed. But if you've got young ears around you, you might consider skipping this one. Alright. Here we go.

 

Archival: [00:00:17] Conversation at the dinner table is very important and there are many topics that you cannot speak about, so we'll talk about those first.

 

Hannah McCarthy: [00:00:25] There are several basic rules of thumb when it comes to good table manners. Be nice about the food, elbows off the table and avoid the following subjects.

 

Archival: [00:00:38] I recommend that you do not talk about politics, religion, death, bereavement or anything that's too spicy.

 

Hannah McCarthy: [00:00:46] I found a whole series of etiquette lessons online and now I am finally a lady. But I digress. You'll notice that the last of the forbidden realms was so taboo that it could only be hinted at anything [00:01:00] spicy.

 

Nick Capodice: [00:01:00] May I hazard a guess.

 

Hannah McCarthy: [00:01:02]  Please.

 

Nick Capodice: [00:01:03] Because I'm thinking she doesn't mean chili pepper.

 

Hannah McCarthy: [00:01:05] Right.

 

Nick Capodice: [00:01:06] I'd say that anything having to do with sex at all is a big no.

 

Hannah McCarthy: [00:01:09] I'd say you're right. And anything having to do with the politics of sex may be an even bigger now. But I'll tell you where we do talk about it in these United States, the Supreme Court. This is Civics 101. I'm Hannah McCarthy.

 

Nick Capodice: [00:01:28]  I'm Nick Capodice.

 

Hannah McCarthy: [00:01:30] And today we're covering a case that decided what we're legally allowed to talk about and do when it comes to a certain spicy subject. The year is 1965 and the case is Griswold v. Connecticut. This case paved the way for reproductive privacy in the United States. It's the reason that you're allowed to talk about birth control, let alone buy and use it. This is the case that kicked the federal government out of our bedrooms. Now, [00:02:00] 1965 in the United States, we're talking major clashes and major change, the president is Lyndon B. Johnson, beginning his first full term after the assassination of John F. Kennedy.

 

Archival: [00:02:15] Lyndon Baines Johnson: I speak tonight for the dignity of man and the destiny of democracy.

 

Hannah McCarthy: [00:02:21] The Vietnam War is raging as are anti-war protests. This is the year Malcolm X is assassinated.

 

Archival: [00:02:32] be prepared to defend ourselves or we will continue to be a defenseless people at the mercy of a ruthless and violent racist mob.

 

Hannah McCarthy: [00:02:40] The year 200 Alabama state troopers attacked unarmed, peaceful civil rights marchers in our own.

 

Hannah McCarthy: [00:02:48] The year of the 1965 Voting Rights Act, we are in the midst of the Cold War, the space race...

 

Archival: [00:02:57] Until two days ago, that sound [00:03:00] had never been heard on this earth.

 

Hannah McCarthy: [00:03:01] And in the midst of all of this is a woman who's trying to get in trouble with the law.

 

Archival: [00:03:06] The effort to change morality laws by breaking them is still going on. The latest case in the state of Connecticut.

 

Estelle Griswold: [00:03:18] We are continuing maybe illegally, but we are continuing our program of education and referral.

 

Hannah McCarthy: [00:03:24] Estelle Griswold, executive director of the New Haven, Connecticut, Planned Parenthood Clinic.

 

Estelle Griswold: [00:03:29] An old Comstock law making it a crime to practice contraception, is still on the books.

 

Hannah McCarthy: [00:03:33] See Estelle, along with a doctor from Yale.

 

Archival: [00:03:36] Dr. C. Lee Buxton, chairman of the obstetrical department.

 

Hannah McCarthy: [00:03:39] They wanted to challenge a law and to do it, they needed to get arrested.

 

Archival: [00:03:44] We issued to warrants one against Estelle Griswold and the other against Dr. Sealy Buxton.

 

Archival: [00:03:50] The remnants of Comstockery,constitutional liberties and the moral principles of several religions met head on.

 

Nick Capodice: [00:03:56] Hold on. These providers, Griswold [00:04:00] and Buxton, are violating Comstock three. What does that even mean?

 

Hannah McCarthy: [00:04:05] To answer that, we're going to have to go back a bit.

 

Nick Capodice: [00:04:07] How far back we're going to go?

 

Hannah McCarthy: [00:04:10] This story technically begins nearly 100 years earlier, not in Connecticut at all, but in a little city called New York in 1873.

 

Nick Capodice: [00:04:21] Now, here is a place I know a little bit about, he got tons of wealth, even more poverty, grand mansions going up next to overcrowded tenement blocks, anti-immigrant sentiment was huge. And you're at the height of Victorian morality, this idea that there is a proper way for women and men to behave. So think not gambling, drinking or having premarital sex, while at the same time gambling houses, saloons and so-called vice workers, a.k.a. sex workers were all over the city.

 

Hannah McCarthy: [00:04:57] And into this land of great wealth and poverty, [00:05:00] morality and vice sunlight and shadow walk someone by the name of Anthony Comstock.

 

Nick Capodice: [00:05:08] The inventor of Comstockery. I'm going to guess.

 

Hannah McCarthy: [00:05:12] That's right. This is where it starts. Comstock was a poster child for Victorian morality, the ultimate anti-vice torchbearer.

 

Hannah McCarthy: [00:05:20] He considered gambling, prostitution, pornography, erotic literature, contraception and abortion to be obscene. And he wanted all of it eradicated. So he gets busy lobbying Congress to pass a law that will keep Americans moral. And it works, or at least passing the law works. That same year, 1873, Congress passes the act of the suppression of trade and circulation of obscene literature and articles of immoral use.

 

Nick Capodice: [00:05:54] So the obscene literature thing kind of speaks for itself. But what do they mean by articles of immoral use?

 

Renee Cramer: [00:06:00] The Comstock laws, where federal laws that made possession and distribution of information about birth control a violation of pornographic laws of pornography laws. So it treated these materials as smut, as dirty, as erotic, rather than as a health care.

 

Hannah McCarthy: [00:06:18] This is Renee Cramer, a law professor at Drake University.

 

Nick Capodice: [00:06:21] Hold, how widely available was birth control before this law?

 

Renee Cramer: [00:06:25] Well, here's what's amazing. From about the 1920s to the 1950s, before the Comstock laws made it illegal, people would buy their birth control from the Sears and Roebuck catalog. They would buy their birth control in the personal aisle at the five and dime.

 

Hannah McCarthy: [00:06:40] So birth control goes from dime a dozen common to intensely stigmatized. And the reason the setting is important for this one. By that I mean New York City, high rates of immigration, lots of poverty, lots of bigotry is that this law had a target audience.

 

Renee Cramer: [00:06:58] This was also tied to eugenics. This is also very clearly about which women should reproduce. Middle class, white women should reproduce. Immigrant women should not reproduce. Poor women of color should not reproduce. Poor white women should not reproduce. They weren't being policed in this way at this time. This was middle class and upper class women who would have had access to private doctors, who could give them prescriptions to birth control. And the state had a very formative interest, the nation state, in making sure that they reproduced. It's sometimes called positive eugenics.

 

Hannah McCarthy: [00:07:30] Eugenics, by the way, is the study of how to make sure people with, quote, desirable characteristics meet and produce children. The idea is to improve the human race, but the fine print is that it's about racism, bigotry, anti-Semitism and ableism.

 

Renee Cramer: [00:07:46] So Comstock was making sure that those people who could have had access to birth control or knowledge about it didn't and making sure that people felt dirty and obscene for wanting it.

 

Hannah McCarthy: [00:07:57] Anthony Comstock got his way and then states across the country created their own specific versions of the law.

 

Elizabeth Lane: [00:08:04] But Connecticut took it a step further and they just completely forbid the use of contraceptives.

 

Hannah McCarthy: [00:08:10] This is Elizabeth Lane, Professor of political science at Louisiana State University. Now, as early as 1878, people were petitioning Congress to please repeal the Comstock Act, unsuccessfully, I might add. But as time wore on, doctors started to push their luck with it.

 

Elizabeth Lane: [00:08:28] And one of the first cases actually was in 1938 and a birth control clinic opened in Waterbury, Connecticut. They basically operated kind of unnoticed, right. They just did their thing thinking that, well, perhaps this law has a medical exception.

 

Nick Capodice: [00:08:48]  What counts as a medical exception?

 

Hannah McCarthy: [00:08:51] These doctors were thinking that women who had complications in past pregnancies or whose lives could be threatened by pregnancy were maybe exempt from this anti birth control law. They thought wrong.

 

Elizabeth Lane: [00:09:03] In 1939, the following year, that summer, the Waterbury kind of clergy members got together and they basically said this is a clear violation of the law.

 

Elizabeth Lane: [00:09:20] The police need to do something about it. And the next day that clinic was raided and the two doctors and the nurse who worked there were arrested. And so that was the state of Connecticut v. Nelson. And the Supreme Court of Errors ended up upholding the law.

 

Hannah McCarthy: [00:09:39] A couple of years later, another doctor went looking for more clarification on the medical exemption question.

 

Elizabeth Lane: [00:09:46] He basically went before the Supreme Court of Errors in Connecticut and was like, so there is no medical exemption, kind of basically clarifying. And they said, yes, there is no medical exception to this law. Birth control is not allowed [00:10:00] to be used in the state.

 

Hannah McCarthy: [00:10:02] And this doctor is like, seriously, there is no situation in which a medical doctor would be allowed to help a patient prevent pregnancy.

 

Elizabeth Lane: [00:10:12] He appeals that decision to the Supreme Court, but of course, the Supreme Court doesn't rule on hypothetical cases at that point, that doctor hadn't been prosecuted in any way for providing birth control to a patient. So he did not have standing for the Supreme Court to rule on his case.

 

Hannah McCarthy: [00:10:31] Medical providers, Planned Parenthood in particular, are coming at this problem from various angles.

 

Elizabeth Lane: [00:10:37] Well, the Planned Parenthood League of Connecticut had been working since that case in the 1930s, every legislative session to have someone introduce an amendment to that law from the eighteen hundreds to allow birth control to be used, especially for medical reasons. And they had been unsuccessful.

 

Hannah McCarthy: [00:10:56] The legislature was actually where Estelle Griswold began, executive director [00:11:00] of Planned Parenthood in Connecticut, started before they got anywhere near trying to get arrested.

 

Hannah McCarthy: [00:11:08] She and Dr. Charles Lee Buxton went before Connecticut lawmakers.

 

Archival: [00:11:13] Dr. Buxton, how did you become involved in this birth control case?

 

Elizabeth Lane: [00:11:17] He was the chair of the OBGYN -- the obstetrics and gynecology department at Yale Medical School. She arranged for him to testify.

 

Archival: [00:11:27] Dr. C. Lee Buxton: I'm prevented from taking care of patients the way they should be taken care of by a law that exists. I just happened to believe something ought to be done about it.

 

Elizabeth Lane: [00:11:35] Nothing changed.

 

Nick Capodice: [00:11:37] So you've got a law based in this antiquated notion of Victorian morality in the midst of the 1960s, one of the most tumultuous and freewheeling decades in world history. Anthony Comstock truly got the most out of his legacy.

 

Elizabeth Lane: [00:11:52]  They started thinking, and that's when they backed up with Fowler Harper, professor at Yale Law School, and he happened to specialize in [00:12:00] family law. And this is where kind of the litigation strategy began.

 

Hannah McCarthy: [00:12:07] So Griswold and Harper start looking for a way to challenge the law. And they're thinking, OK, married couples have the best case here because we know it's a bridge too far to ask the court to rule on an unmarried woman who may need to use birth control. And they find three married couples either for whom the pregnancies had been life threatening for the mother or whose children either did not survive very long, had major disabilities or had been stillborn. And they challenged this Comstock law in the state Supreme Court. And the court says, sorry, that ban on birth control applies even if you're married and the pregnancy is life threatening. So Griswold and Harper appeal their case up to the Supreme Court. This case is called Poe v Ullman.

 

Elizabeth Lane: [00:12:51] Once the case got to the United States Supreme Court, they said that there was no controversy because neither the doctor who prescribed the birth control, [00:13:00] Doctor Buxton from Yale Medical School, nor his patients had actually been prosecuted. And so basically the Supreme Court said, well, you don't have standing, nor do we think that it's really realistic that anyone is going to be prosecuted moving forward.

 

Nick Capodice: [00:13:16] Ergo, we can't rule because nobody actually got in trouble for breaking the law. And it doesn't matter in the first place because who bothers enforcing this law anyways?

 

Elizabeth Lane: [00:13:24] Estelle Griswold was like, well, if that's the case, great, we'll start opening clinics all over the states. And if that's not the case, not great. But then at least we will have standing to try to take this case before the Supreme Court again. And so that's what they did.

 

Nick Capodice: [00:13:41] So Estelle Griswold's like, don't mind me, officer. I'll just be over here breaking the law over and over.

 

Elizabeth Lane: [00:13:49] November of 1961, they opened their Planned Parenthood clinic in New Haven, Connecticut. They were open for ten days prescribing contraceptives and birth control to their [00:14:00] patients, and then they were shut down and prosecuted for violating the law.

 

Hannah McCarthy: [00:14:06] The difference now is that Estelle Griswold very much did get in trouble. The case has standing and attorney Thomas Emerson is the advocate in this case. And he's before the court and he starts arguing on a First Amendment basis that you can't constrain what a doctor says to a patient.

 

Archival: [00:14:25] Griswold v Connecticut Oral Argument: Are you coming back to your First Amendment argument? If not I want to ask the question. Well, I'm not getting far on any of my arguments here but uh... uh...

 

Hannah McCarthy: [00:14:33] And then he goes for a 14th Amendment basis.

 

Archival: [00:14:41] Griswold v Connecticut Oral Argument: Let me just outline the argument on due process.

 

Elizabeth Lane: [00:14:45]  This argument that we have liberty located in the due process clause of the 14th Amendment primarily, and this liberty gives individuals the ability to make their own decisions with regard to using contraceptives.

 

Nick Capodice: [00:15:00] So they're arguing on the first and Fourteenth Amendment basis. Those aren't the two, I think, of when we're talking about privacy.

 

Hannah McCarthy: [00:15:06] What happens is at the last minute, Emerson finds an article in the New York University Law Review that focuses a bunch on the Ninth Amendment. And Emerson is like huh. That could work.

 

Archival: [00:15:19] Griswold v Connecticut Oral Argument: Certainly the Ninth Amendment meant to reserve some rights to the people. And if there's any right that you would think would be reserved to the people on which the government should not interfere with this, it would be this right? Yeah.

 

Elizabeth Lane: [00:15:32] And so at like the 13th hour, they ended up including those Ninth Amendment arguments in their brief as well.

 

Elizabeth Lane: [00:15:42]  And as it turned out, that was quite effective.

 

Hannah McCarthy: [00:15:44] See, the Ninth Amendment tells us that just because something is not in the Constitution, that doesn't mean that it is not one of our rights. And that kind of like unlocks a right that the Supreme Court had been thinking about quite a bit lately, [00:16:00] specifically four years earlier in a case in 1961.

 

Nick Capodice: [00:16:05] In a little case called Mapp v Ohio.

 

Nick Capodice: [00:16:08] Right. A case that hinged on an unspoken right to privacy.

 

Hannah McCarthy: [00:16:12]  Right. Here's Renee Kramer again.

 

Renee Cramer: [00:16:14] Douglas wrote the majority opinion. There were two dissents, but Douglas didn't even really want to think through the First Amendment claim. He does a bit, but he says the most important thing here is that we actually have a right to privacy. And this line is why Griswold is so important, because up until Griswold versus Connecticut, privacy doctrine rooted in the Fourth Amendment was all about matters of criminal law. So that's the development of privacy law. And here Douglas says, you know, there are these zones of privacy, these spaces that the state shouldn't enter. And two of those zones are implicated here. One, the marriage. There's a point in his decision. He calls it the sacred precinct of the marital bedroom.

 

Nick Capodice: [00:16:59] Oh, that phrasing, these sacred precinct of the marital bedroom and marital. Seems like the operative word here.

 

Hannah McCarthy: [00:17:09] Oh, very much so.

 

Renee Cramer: [00:17:10] Because this is also about any time a woman in Griswold is making a medical decision, she's making it in consultation with her husband, who is a man and with a doctor who is a man. So these are rights of privacy whereby men are empowered to tell women about their health care options and women are empowered to act on them. So the zones of privacy of the marital bedroom and the doctor's office are the places where women can exert that autonomy. But they're both really bounded places. And Douglas is clear on it. I mean, this is a sacred precinct. This is God ordained. This is marriage.

 

Hannah McCarthy: [00:17:45] The court is ruling in a seven to two decision that, yes, a doctor is permitted to talk about the spicy subject of contraceptives with a patient when it involves the protected private space of the marital bedroom. Basically, this is a right reserved for married couples.

 

Hannah McCarthy: [00:18:08] Still, this ruling reveals this new power of the right to privacy. Justice Douglas writes that privacy has something called a penumbra.

 

Renee Cramer: [00:18:20] Penumbral is a great word. It can be a confusing word. And I think of it in two different ways than an actual penumbral is like a candelabra.

 

Renee Cramer: [00:18:28] So a penumbra is the light that is shed by a flame. So it's the opposite of the shadow. It's what's illuminated by a candle.

 

Renee Cramer: [00:18:36] But I also like to think of a penumbral right as an umbrella. It's the umbrella you stand under in order to not get wet to in order to get out of the storm.

 

Renee Cramer: [00:18:46] So you imagine this married couple walking into their doctor's office saying we do not yet want to have children and they're holding their umbrella and the doctor says, hey, come under this penumbral right of privacy.Step in under this with me.

 

Renee Cramer: [00:19:00] I can give you this information because the court has now said this little area, this little light illuminated by the flame is a zone of privacy and you can have private decision making Control in this area around this part of your reproductive lives, so the penumbral right of privacy is articulated in Griswold starts to open up this range of spaces.

 

Renee Cramer: [00:19:23] It starts to illuminate different zones of privacy where people can make reproductive decisions and eventually where people can make sexual and intimacy decisions beyond birth control and abortion.

 

Renee Cramer: [00:19:35] But on to areas of same sex couples, same sex relationships, same sex marriage, but also interracial marriage earlier, way earlier than those became legal.

 

Nick Capodice: [00:19:45] So first, the Supreme Court reveals this unenumerated rights and then they say, hey, by the way, this thing lights up.

 

Hannah McCarthy: [00:19:55] Making it a lot easier to see what else falls under the right to privacy.

 

Archival: [00:20:02] Please listen carefully.

 

Archival: [00:20:05] The right of Richard and Mildred Loving to wake up in the morning or to go to sleep at night knowing that the sheriff will not be knocking on their door or shining a light in their face in the privacy of their bedroom for illicit cohabitation.

 

Archival: [00:20:25] That is what gave the people of this state and across the country the right of privacy to the decision to end the pregnancy during the first three months belongs to the woman and her doctor, not the governor, as a gay rights case as well as a privacy case. And I think in that respect, Justice Scalia, with whom I do not always agree, was the most important gay rights ruling ever. And it's the culmination of decades of legal battles. It comes from a Supreme Court that just 30 years ago said gay people could be punished as criminals out of that historic Supreme Court decision legalizing same sex marriage across the land.

 

Archival: [00:20:59] And it's profound. The five to four vote [00:21:00] in many ways reflecting the huge societal shift of the last 20 years. The president saying today there are days like this when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.

 

Hannah McCarthy: [00:21:15] That does it for Griswold v. Connecticut, but that does not do it for its impact, ruling on a married couples right to privacy soon led to Eisenstadt v. Baird, which ruled that a single woman has a right to privacy when it comes to birth control. And, of course, one of the most hot button privacy cases in modern history, Roe v. Wade and a woman's right to privacy and choice. So naturally, we're tackling that on Civics 101. This episode was produced by me, Hannah McCarthy with Nick Capodice. Erica Janik is our executive producer and our team includes Jackie Fulton. Music in this episode by Joel Cummins, Nangdo, Lobo Loco, Ketsa, Juanitos, Jahzzar, Crowander and Bio Unit. Just a reminder, our student contest is still going on! It’s called There Outta Be a Law, and we want to know what law you would propose to fix a problem in your school, town, state or country. You’ve got until the end of this month, March 2021, to submit your idea via voice memo or video. All students of all ages welcome, check out the deets at our website, civics101podcast.org. [00:22:00]

 


 
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Right to Privacy: Mapp v Ohio

In 1957, three police officers showed up at the home of Dollree Mapp and demanded to be let in. They had no warrant. Ms. Mapp refused. This landmark case about privacy and unlawful search and seizure defines our protections under the 4th Amendment today.

This episode features Vince Warren, Executive Director for the Center for Constitutional Rights, and Boston University Law professor Tracey Maclin.

 

Episode Resources

Click here for a Graphic Organizer for students to fill out while listening to the episode

Video on the Exclusionary Rule:

 

Episode Segments


mapp final all.mp3: Audio automatically transcribed by Sonix

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

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

A.L. Kearns:
We have a situation here rising in Cuyahoga County, Ohio.

Nick Capodice:
Hannah, I want to tell you a story about a woman in Ohio, a woman named Dalle Rehmat.

A.L. Kearns:
She is a woman without any record whatsoever from a criminal point of view.

Nick Capodice:
She lived in a quiet neighborhood in Cleveland. And one day some police officers came to her house. And before I tell you what happened next, I just want to say that people out there might think of Supreme Court cases as these stuffy procedural things. But at their heart, these cases are stories. They have a plot, characters, struggles, victory, defeat. But when it comes to epic sagas, the case we're talking about today, Mapp v Ohio, pretty much takes the cake.

Hannah McCarthy:
Well, now you've got me curious. What is it got?

Nick Capodice:
What's it got? This case has got it all Hannah!

Nick Capodice:
And it starts with a bomb. Numbers runners. Operators. An unloaded gun. Crooked cops, pornography, a young Don King.

Don King:
I'm not trying to win a popularity contest.

Nick Capodice:
And at the center of it all, a true hero who stood in her doorway and said, if you don't have a warrant, you're not coming in. This is the case that makes the Fourth Amendment actually apply to You.

Nick Capodice:
This is Civics 101, I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy,

Nick Capodice:
And this is the first of four episodes about privacy and the Supreme Court for cases that change the rules about what the government can and can't do when it comes to your home, your locker, your purse or your body. This is Mapp v Ohio, 1961.

Vince Warren:
So Mapp versus Ohio is a case about the police looking for a bomber and ending up arresting a woman for having porn in her basement. My name is Vince Warren. I'm the executive director of the Center for Constitutional Rights in New York City.

Tracey Maclin:
Well, there was a bombing at Don King's home in Cleveland, Ohio. The police suspected that the bomber was that Dolree Mapp's home. My name is Tracey Maclin and I am a law professor at Boston University.

Hannah McCarthy:
Pause here. Are we talking about the Don King,

Nick Capodice:
The one and only. Before he rose to fame as a boxing promoter for Muhammad Ali and others, Don King ran what was called a numbers racket in Cleveland.

Hannah McCarthy:
What's a numbers racket?

Nick Capodice:
It's like an illegal local lottery, sometimes run by a crime syndicate, sometimes far less nefarious. Numbers Runners go around the city and they take bets on three numbers. In Cleveland, they used the closing stock market results in the evening papers to determine the winning lottery numbers. And if you pick the right trio, you could win like a couple hundred bucks.

Hannah McCarthy:
You've got Don King running a numbers racket. Somebody bombs his home and the police think the guy is it at Dolree Mapp's house.

Vince Warren:
And so they showed up at the door. They said, we're here to search the property. Dolly says, can you show me a search warrant? Now, they didn't have a search warrant. So what's a search warrant? A search warrant is when a police officer goes to a judge or a magistrate and swears out with an affidavit. Here is the probable cause to believe that we will find the things that we think that we're going to find in this house. They have to convince a court based on reasonable evidence that that would likely be the case.

Hannah McCarthy:
They want to get in, but they don't have a warrant.

Nick Capodice:
They don't. And this is the most important part. And before I tell you what happened next, I need to explain something called the exclusionary rule, which requires a quick pivot from Cleveland and Dolly Mapp's house to a breakneck history of the Fourth Amendment in the United States. You with me?

Hannah McCarthy:
All right. I'm hedging the horses to the coach.

Nick Capodice:
All right. It all starts with this guy in 1760, one Boston lawyer and patriot, James Otis uttering a line that is heard and many social studies classroom.

James Otis:
A man's house is his castle.

Hannah McCarthy:
Hang on for a minute. Yes, James Otis did say that, but it actually started with this guy in 1604.

That we would not understand why every man's home is his castle, why there should be due process of law, but for their framing by Sir Edward Coke.

Hannah McCarthy:
Edward Coke was a judge in England who issued a ruling saying that there were strict limitations on sheriffs entering homes and issuing writs. And his opinion called a man's home, his castle and fortress.

Nick Capodice:
Yeah, Otis took that and turned it into one of the reasons we have the Fourth Amendment. He gave a five hour speech in a court case against what were called writs of assistance. Under British rule, a writ of assistance could be granted to give authorities the freedom to search anyone's home at any time for evidence of smuggling. And if they found anything that incriminated you in any crime whatsoever, you could go to jail. Otis, by the way, had a sad final chapter in his life. I'm not going to get into it here, but let's just say he was killed by a bolt of lightning. So we have the Fourth Amendment, the first part which says, quote, the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, which sounds good. But as we have learned, every amendment looks nice on paper, but it doesn't mean much until it's tested in the courts. If the police search your home without a warrant, can they use what they find in a court of law? The exclusionary rule says that that evidence cannot be used. It is excluded.

Hannah McCarthy:
Ok, that I know pretty much from watching TV police procedurals like a lawyer finds out that the police got evidence illegally and then that evidence cannot be used in court.

Nick Capodice:
Yeah, because it's not only that evidence that is tainted, but all other evidence found thereafter because of the first evidence is also tainted and unusable. This is referred to by a lovely lawyer term of art, fruit from a poisonous tree.

Hannah McCarthy:
How long did it take after the Fourth Amendment was ratified for the exclusionary rule to be tested in a Supreme Court case?

Nick Capodice:
123 years. Case number one 1914, Weeks v. United States.

Nick Capodice:
Freemont Weeks was arrested by federal marshals at Union Station in Kansas City for the charge of illegally selling lottery tickets in the mail. Police officers broke into his home. They didn't have a warrant and they took all his mail, all his books and according to the court record, all his candies and clothes, they took anything that could be used as evidence.

Hannah McCarthy:
And was the guy guilty, had he been selling lottery tickets in the mail?

Nick Capodice:
Oh, yeah, without a doubt, they found lottery stuff everywhere. They basically found a table with a bunch of envelopes and a bunch of lottery tickets.

Nick Capodice:
However, Weeks' case went to the Supreme Court where they ruled on this question, could that evidence from an illegal search be used in a case?

Hannah McCarthy:
So what did the court say? Was the evidence admissible?

Nick Capodice:
Absolutely not. A unanimous decision cementing the exclusionary rule in federal law. You can't do that for federal cases.

Hannah McCarthy:
OK, for federal cases, but not state cases.

Nick Capodice:
Right. Some states upheld what was called the Weeks rule and some didn't. And that brings us to our second case, Wolfe v. Colorado, 1949, Dr. Julius Wolfe was arrested in Denver for conspiracy to perform abortions. And the prosecution confiscated his appointment books without a warrant. And his case went to the Supreme Court where they were to rule on whether or not the Fourth Amendment applies to the states.

Hannah McCarthy:
Does it?

Nick Capodice:
Yes and no. Here's Tracey Maclin again.

Tracey Maclin:
While Wolfe said the Fourth Amendment applies to the states, the Wolf majority also said the exclusionary rule does not apply to the states. So that was kind of a split decision. They said, yes, states must comply with the Fourth Amendment, but they don't have to follow the exclusionary rule, which, of course, means force that really does apply to states because they know, even though we know we shouldn't be doing it, we shouldn't be violating people's rights, we shouldn't search their homes. We shouldn't stop their cars, it really doesn't matter because the evidence comes in.

Hannah McCarthy:
Therefore, states could use evidence that the authorities got without a warrant.

Nick Capodice:
They could. And there were punitive measures to discourage this. The police could be issued a fine or given a demotion. But in essence, it's left to the states to decide if they use the evidence or not. And that brings us to the home of Dollree Mapp.

Dolly Mapp:
Most of my friends call me Dolly. Very few called me Dollree.

Nick Capodice:
The cops showed up at Mapp's door and demanded entry. Here's Vince Warren again.

Vince Warren:
And they essentially bum rushed her. She closed the door. She tried to call her lawyer. The police knocked down the door after her, refusing, allowing them to come in for lack of a warrant.

Tracey Maclin:
They showed her a piece of paper. She grabbed the paper from one of the officers and as the court described, later stuck it in her bosom. There was a physical encounter in which the cops retrieved the paper. Eventually, it was clear that there was no warrant.

Vince Warren:
They put her in handcuffs, they dragged her upstairs and they ransacked the house, purportedly looking for this bomber. Now, they didn't find the bomber. He wasn't there, but they did find in a trunk in the basement some point and they ended up arresting her not for harboring a bomber, but for having porn in her basement.

Hannah McCarthy:
I just I'm so curious. Can you give me any gyrated specifics on what they found in the basement?

Tracey Maclin:
The search revealed four books: Affairs of a Troubador, Little Darlings, London Stage Affairs and memories of a hotel man and a hand drawn picture, all of which were allegedly obscene.

Nick Capodice:
In a later interview, Dolly said that these books and an unloaded pistol that the cops found these belonged to a former tenant. She didn't think she was in any trouble, but nevertheless, she was arrested.

Tracey Maclin:
She was eventually sentenced to prison and given a seven year indeterminate sentence based on the obscenity that was found in her home.

Hannah McCarthy:
Seven years? And how does a case about owning lewd comic books become a landmark Fourth Amendment opinion?

Vince Warren:
The Mapp v Ohio case is an interesting map, if you will, of how legal issues can be intertwined with each other. Again, it started out as a search for a bomber. It went to the Supreme Court as an obscenity case, and then it ended up being a broad Fourth Amendment case that really set the stage for how we defined privacy rights versus the police. And the way that that flip was that the court looked at the question of the obscenity conviction. But you can't really look at that without looking at the nature of the evidence and how it was obtained.

Nick Capodice:
You remember, Wolfe v Colorado?

Hannah McCarthy:
Yeah, that's the one that said that states can decide if they follow the exclusionary rule.

Nick Capodice:
The justice who wrote that opinion was also on the bench during the map trial. And in the oral argument, one justice asked the advocate for Mapp.

That means you're asking us to overrule Wolfe against Colorado?

Nick Capodice:
And the advocate is like,

A.L. Kearns:
No, I don't believe we are, all that we're asking...

Nick Capodice:
So he wants to keep this as a case about this antiquated obscenity law. But then a lawyer for the American Civil Liberties Union is allowed to give what's called an amicus curiae brief. That means an interested party. A friend of the court, amicus curiae briefs are from people not directly involved with the case, but deeply interested and affected by the outcome. And this lawyer from ACLU says.

Bernard Berkman:
In response to a question which was directed to counsel for the settlement, that we are asking this court to reconsider Wolfe versus Colorado.

Vince Warren:
And so the broader question is that I think reaches beyond both bombing and obscenity is how do we make sure that the police officers are complying with the Fourth Amendment? Because if police officers don't police officers don't comply with the Fourth Amendment, we essentially have no Fourth Amendment protections under the Constitution. So the court was really looking at the idea that police officers cannot use the Fourth Amendment as an on off switch, that they can just turn it off when they want to go into somebody else's house and then they can turn it back on at some point, at some later date.

Hannah McCarthy:
All right. Do don't leave me hanging. How did the court rule the verdict?

Nick Capodice:
In the case of Mapp v. Ohio, the court rules in favor of Dolly map. In a 6-3 decision, the court ruled via interpreting the Fourth Amendment and the due process clause in the 14th Amendment, which is called the incorporation doctrine, that the Fourth Amendment and the exclusionary rule are both incorporated, which mean they now apply to the states, all the states, all of us, all the time. And there you have it.

Hannah McCarthy:
I can see why you love this case. It's fascinating. There's so much drama, so many macguffins. You know what macguffins are right.

Hannah McCarthy:
Yeah. You've told me about macguffins quite a few times. It's like a red herring.

Nick Capodice:
Yeah. It's like the plot device that Alfred Hitchcock is famous for. It's the thing you think the movie's about isn't actually important at all. But the porn and the gun and the bombing suspect, they were all mcguffins. The police found the suspect, by the way. He was staying at Mapp's house, but he was quickly found not guilty of any involvement in the bombing whatsoever.

Hannah McCarthy:
All right. So I always want to know when looking at any Supreme Court case, how does this case affect me? How does Mapp v. Ohio resonate today in modern courts?

Nick Capodice:
This is something Vince brought up at the end of our interview. So first off, there are now, 50 years later, myriad exceptions to the exclusionary rule. This is how states can pass stop and frisk laws, for example, or use the automobile exception to use evidence from searching your car without a warrant. And most of all, what can and does happen when you do what Dollree Mapp did, when you say "no."

Vince Warren:
And so, for example, walking down the street, if a police officer asks you to do the hokey pokey and turn yourself around, you can say, no, I'm not going to do that. There's no reasonable basis to ask me to do that. And under the Fourth Amendment, you're absolutely right. That's a seizure and that they can't ask you to do that. However, you do pay a price by not complying with the police officers in this day and age, particularly if you're Black and Brown. So in some ways, the challenge of Dolly Mapp is still with us. With people walking down the street today, we can always say, no, you're not going to do that. But as we've seen recently, these types of situations can escalate so quickly and so violently and sometimes even leading to death that it makes us think, does the Fourth Amendment actually really protect us in the way that the framers intended as a as a shield against unlawful police activity? Or is it something that courts are going to look at as a mere inconvenience to what is essentially a law enforcement tactic that they ultimately support? And these are questions that we're confronting in our society today.

Nick Capodice:
Mapp v Ohio, nineteen sixty one. We got lots of other Supreme Court cases coming up in the next few weeks, so stay tuned. And if any of you are curious about the exclusionary rule and its exceptions, we made a fun little video on our website, civics101podcast.org.

Nick Capodice:
Today's episode was produced by me, Nick Capodice with You Hannah McCarthy, thank you.

Hannah McCarthy:
Oh, you're welcome. Our staff includes Jackie Fulton. Erika Janik is our executive producer and runs the numbers for two Pillsbury.

Nick Capodice:
Music in this episode by Scott Holmes, Randy Butternubbs, Eric Kilkenny, KiLoKaz, Blue Dot Sessions and Alex Ball, who composed this wonderful 70s cop themed show music you're hearing right now. You can check him out on Spotify.

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

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Transcript

Adia Samba-Quee: [00:00:02.93] Civics 101 is supported in part by the Corporation for Public Broadcasting.

A.L. Kearns: [00:00:07.46] We have a situation here rising in Cuyahoga County, Ohio.

Nick Capodice: [00:00:16.07] Hannah, I want to tell you a story about a woman in Ohio, a woman named Dalle Rehmat.

A.L. Kearns: [00:00:21.65] She is a woman without any record whatsoever from a criminal point of view.

Nick Capodice: [00:00:29.06] She lived in a quiet neighborhood in Cleveland. And one day some police officers came to her house. And before I tell you what happened next, I just want to say that people out there might think of Supreme Court cases as these stuffy procedural things. But at their heart, these cases are stories. They have a plot, characters, struggles, victory, defeat. But when it comes to epic sagas, the [00:01:00.00] case we're talking about today, Mapp v Ohio, pretty much takes the cake.

Hannah McCarthy: [00:01:05.81] Well, now you've got me curious. What is it got?

Nick Capodice: [00:01:08.63] What's it got? This case has got it all Hannah!

Nick Capodice: [00:01:11.99] And it starts with a bomb. Numbers runners. Operators. An unloaded gun. Crooked cops, pornography, a young Don King.

Don King: [00:01:24.38] I'm not trying to win a popularity contest.

Nick Capodice: [00:01:26.27] And at the center of it all, a true hero who stood in her doorway and said, if you don't have a warrant, you're not coming in. This is the case that makes the Fourth Amendment actually apply to You.

Nick Capodice: [00:01:40.24] This is Civics 101, I'm Nick Capodice.

Hannah McCarthy: [00:01:42.16] I'm Hannah McCarthy,

Nick Capodice: [00:01:43.18] And this is the first of four episodes about privacy and the Supreme Court for cases that change the rules about what the government can and can't do when it comes to your home, your locker, your purse or your body. This is Mapp v Ohio, 1961.

Vince Warren: [00:02:02.60] So [00:02:00.00] Mapp versus Ohio is a case about the police looking for a bomber and ending up arresting a woman for having porn in her basement. My name is Vince Warren. I'm the executive director of the Center for Constitutional Rights in New York City.

Tracey Maclin: [00:02:20.84] Well, there was a bombing at Don King's home in Cleveland, Ohio. The police suspected that the bomber was that Dolree Mapp's home. My name is Tracey Maclin and I am a law professor at Boston University.

Hannah McCarthy: [00:02:36.62] Pause here. Are we talking about the Don King,

Nick Capodice: [00:02:41.00] The one and only. Before he rose to fame as a boxing promoter for Muhammad Ali and others, Don King ran what was called a numbers racket in Cleveland.

Hannah McCarthy: [00:02:50.63] What's a numbers racket?

Nick Capodice: [00:02:51.74] It's like an illegal local lottery, sometimes run by a crime syndicate, sometimes far less nefarious. Numbers [00:03:00.00] Runners go around the city and they take bets on three numbers. In Cleveland, they used the closing stock market results in the evening papers to determine the winning lottery numbers. And if you pick the right trio, you could win like a couple hundred bucks.

Hannah McCarthy: [00:03:13.01] You've got Don King running a numbers racket. Somebody bombs his home and the police think the guy is it at Dolree Mapp's house.

Vince Warren: [00:03:21.59] And so they showed up at the door. They said, we're here to search the property. Dolly says, can you show me a search warrant? Now, they didn't have a search warrant. So what's a search warrant? A search warrant is when a police officer goes to a judge or a magistrate and swears out with an affidavit. Here is the probable cause to believe that we will find the things that we think that we're going to find in this house. They have to convince a court based on reasonable evidence that that would likely be the case.

Hannah McCarthy: [00:03:50.84] They want to get in, but they don't have a warrant.

Nick Capodice: [00:03:52.79] They don't. And this is the most important part. And before I tell you what happened next, I need to explain something called the exclusionary [00:04:00.00] rule, which requires a quick pivot from Cleveland and Dolly Mapp's house to a breakneck history of the Fourth Amendment in the United States. You with me?

Hannah McCarthy: [00:04:09.50] All right. I'm hedging the horses to the coach.

Nick Capodice: [00:04:11.51] All right. It all starts with this guy in 1760, one Boston lawyer and patriot, James Otis uttering a line that is heard and many social studies classroom.

James Otis: [00:04:21.26] A man's house is his castle.

Hannah McCarthy: [00:04:23.12] Hang on for a minute. Yes, James Otis did say that, but it actually started with this guy in 1604.

[00:04:33.17] That we would not understand why every man's home is his castle, why there should be due process of law, but for their framing by Sir Edward Coke.

Hannah McCarthy: [00:04:40.91] Edward Coke was a judge in England who issued a ruling saying that there were strict limitations on sheriffs entering homes and issuing writs. And his opinion called a man's home, his castle and fortress.

Nick Capodice: [00:04:54.50] Yeah, Otis took that and turned it into one of the reasons we have the Fourth Amendment. He gave a five hour [00:05:00.00] speech in a court case against what were called writs of assistance. Under British rule, a writ of assistance could be granted to give authorities the freedom to search anyone's home at any time for evidence of smuggling. And if they found anything that incriminated you in any crime whatsoever, you could go to jail. Otis, by the way, had a sad final chapter in his life. I'm not going to get into it here, but let's just say he was killed by a bolt of lightning. So we have the Fourth Amendment, the first part which says, quote, the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, which sounds good. But as we have learned, every amendment looks nice on paper, but it doesn't mean much until it's tested in the courts. If the police search your home without a warrant, can they use what they find in a court of law? The exclusionary rule says that that evidence cannot be used. It is excluded.

Hannah McCarthy: [00:05:58.28] Ok, that I know pretty much [00:06:00.00] from watching TV police procedurals like a lawyer finds out that the police got evidence illegally and then that evidence cannot be used in court.

Nick Capodice: [00:06:10.55] Yeah, because it's not only that evidence that is tainted, but all other evidence found thereafter because of the first evidence is also tainted and unusable. This is referred to by a lovely lawyer term of art, fruit from a poisonous tree.

Hannah McCarthy: [00:06:26.18] How long did it take after the Fourth Amendment was ratified for the exclusionary rule to be tested in a Supreme Court case?

Nick Capodice: [00:06:33.44] 123 years. Case number one 1914, Weeks v. United States.

Nick Capodice: [00:06:39.95] Freemont Weeks was arrested by federal marshals at Union Station in Kansas City for the charge of illegally selling lottery tickets in the mail. Police officers broke into his home. They didn't have a warrant and they took all his mail, all his books and according to the court record, all his candies and clothes, they took anything that could be used as evidence.

Hannah McCarthy: [00:07:00.17] And [00:07:00.00] was the guy guilty, had he been selling lottery tickets in the mail?

Nick Capodice: [00:07:03.68] Oh, yeah, without a doubt, they found lottery stuff everywhere. They basically found a table with a bunch of envelopes and a bunch of lottery tickets.

Nick Capodice: [00:07:11.33] However, Weeks' case went to the Supreme Court where they ruled on this question, could that evidence from an illegal search be used in a case?

Hannah McCarthy: [00:07:19.61] So what did the court say? Was the evidence admissible?

Nick Capodice: [00:07:22.46] Absolutely not. A unanimous decision cementing the exclusionary rule in federal law. You can't do that for federal cases.

Hannah McCarthy: [00:07:32.91] OK, for federal cases, but not state cases.

Nick Capodice: [00:07:36.62] Right. Some states upheld what was called the Weeks rule and some didn't. And that brings us to our second case, Wolf v. Colorado, 1949, Dr. Julius Wolf was arrested in Denver for conspiracy to perform abortions. And the prosecution confiscated his appointment books without a warrant. And his case went to the Supreme Court where they were to rule on whether or not the Fourth Amendment applies [00:08:00.00] to the states.

Hannah McCarthy: [00:08:01.34] Does it?

Nick Capodice: [00:08:02.60] Yes and no. Here's Tracey Maclin again.

Tracey Maclin: [00:08:05.48] While Wolf said the Fourth Amendment applies to the states, the Wolf majority also said the exclusionary rule does not apply to the states. So that was kind of a split decision. They said, yes, states must comply with the Fourth Amendment, but they don't have to follow the exclusionary rule, which, of course, means force that really does apply to states because they know, even though we know we shouldn't be doing it, we shouldn't be violating people's rights, we shouldn't search their homes. We shouldn't stop their cars, it really doesn't matter because the evidence comes in.

Hannah McCarthy: [00:08:36.74] Therefore, states could use evidence that the authorities got without a warrant.

Nick Capodice: [00:08:42.41] They could. And there were punitive measures to discourage this. The police could be issued a fine or given a demotion. But in essence, it's left to the states to decide if they use the evidence or not. And that brings us to the home of Dollree Mapp.

Dolly Mapp: [00:08:56.18] Most of my friends call me Dolly. Very few called me Dollree. [00:09:00.00]

Nick Capodice: [00:09:00.11] The cops showed up at Mapp's door and demanded entry. Here's Vince Warren again.

Vince Warren: [00:09:04.85] And they essentially bum rushed her. She closed the door. She tried to call her lawyer. The police knocked down the door after her, refusing, allowing them to come in for lack of a warrant.

Tracey Maclin: [00:09:14.57] They showed her a piece of paper. She grabbed the paper from one of the officers and as the court described, later stuck it in her bosom. There was a physical encounter in which the cops retrieved the paper. Eventually, it was clear that there was no warrant.

Vince Warren: [00:09:31.31] They put her in handcuffs, they dragged her upstairs and they ransacked the house, purportedly looking for this bomber. Now, they didn't find the bomber. He wasn't there, but they did find in a trunk in the basement some point and they ended up arresting her not for harboring a bomber, but for having porn in her basement.

Hannah McCarthy: [00:09:54.47] I just I'm so curious. Can you give me any gyrated specifics on what they found in [00:10:00.00] the basement?

Tracey Maclin: [00:10:03.77] The search revealed four books: Affairs of a Troubador, Little Darlings, London Stage Affairs and memories of a hotel man and a hand drawn picture, all of which were allegedly obscene.

Nick Capodice: [00:10:16.82] In a later interview, Dolly said that these books and an unloaded pistol that the cops found these belonged to a former tenant. She didn't think she was in any trouble, but nevertheless, she was arrested.

Tracey Maclin: [00:10:27.47] She was eventually sentenced to prison and given a seven year indeterminate sentence based on the obscenity that was found in her home.

Hannah McCarthy: [00:10:35.72] Seven years? And how does a case about owning lewd comic books become a landmark Fourth Amendment opinion?

Vince Warren: [00:10:43.40] The Mapp v Ohio case is an interesting map, if you will, of how legal issues can be intertwined with each other. Again, it started out as a search for a bomber. It went to the Supreme Court as an obscenity case, and then [00:11:00.00] it ended up being a broad Fourth Amendment case that really set the stage for how we defined privacy rights versus the police. And the way that that flip was that the court looked at the question of the obscenity conviction. But you can't really look at that without looking at the nature of the evidence and how it was obtained.

Nick Capodice: [00:11:20.75] You remember, Wolf v Colorado?

Hannah McCarthy: [00:11:22.13] Yeah, that's the one that said that states can decide if they follow the exclusionary rule.

Nick Capodice: [00:11:25.70] The justice who wrote that opinion was also on the bench during the map trial. And in the oral argument, one justice asked the advocate for Mapp.

[00:11:35.03] That means you're asking us to overrule Wolf against Colorado?

Nick Capodice: [00:11:38.39] And the advocate is like,

A.L. Kearns: [00:11:39.89] No, I don't believe we are, all that we're asking...

Nick Capodice: [00:11:43.55] So he wants to keep this as a case about this antiquated obscenity law. But then a lawyer for the American Civil Liberties Union is allowed to give what's called an amicus curiae brief. That means an interested party. A friend of the court, amicus curiae briefs are from people not [00:12:00.00] directly involved with the case, but deeply interested and affected by the outcome. And this lawyer from ACLU says.

Bernard Berkman: [00:12:06.41] In response to a question which was directed to counsel for the settlement, that we are asking this court to reconsider Wolf versus Colorado.

Vince Warren: [00:12:18.05] And so the broader question is that I think reaches beyond both bombing and obscenity is how do we make sure that the police officers are complying with the Fourth Amendment? Because if police officers don't police officers don't comply with the Fourth Amendment, we essentially have no Fourth Amendment protections under the Constitution. So the court was really looking at the idea that police officers cannot use the Fourth Amendment as an on off switch, that they can just turn it off when they want to go into somebody else's house and then they can turn it back on at some point, at some later date.

Hannah McCarthy: [00:12:52.10] All right. Do don't leave me hanging. How did the court rule the verdict?

Nick Capodice: [00:12:55.79] In the case of Mapp v. Ohio, the court rules in favor of Dolly [00:13:00.00] map. In a 6-3 decision, the court ruled via interpreting the Fourth Amendment and the due process clause in the 14th Amendment, which is called the incorporation doctrine, that the Fourth Amendment and the exclusionary rule are both incorporated, which mean they now apply to the states, all the states, all of us, all the time. And there you have it.

Hannah McCarthy: [00:13:24.86] I can see why you love this case. It's fascinating. There's so much drama, so many macguffins. You know what macguffins are right.

Hannah McCarthy: [00:13:30.89] Yeah. You've told me about macguffins quite a few times. It's like a red herring.

Nick Capodice: [00:13:34.79] Yeah. It's like the plot device that Alfred Hitchcock is famous for. It's the thing you think the movie's about isn't actually important at all. But the porn and the gun and the bombing suspect, they were all mcguffins. The police found the suspect, by the way. He was staying at Mapp's house, but he was quickly found not guilty of any involvement in the bombing whatsoever.

Hannah McCarthy: [00:13:52.13] All right. So I always want to know when looking at any Supreme Court case, how does this case affect me? How does Mapp [00:14:00.00] v. Ohio resonate today in modern courts?

Nick Capodice: [00:14:04.49] This is something Vince brought up at the end of our interview. So first off, there are now, 50 years later, myriad exceptions to the exclusionary rule. This is how states can pass stop and frisk laws, for example, or use the automobile exception to use evidence from searching your car without a warrant. And most of all, what can and does happen when you do what Dollree Mapp did, when you say "no."

Vince Warren: [00:14:32.03] And so, for example, walking down the street, if a police officer asks you to do the hokey pokey and turn yourself around, you can say, no, I'm not going to do that. There's no reasonable basis to ask me to do that. And under the Fourth Amendment, you're absolutely right. That's a seizure and that they can't ask you to do that. However, you do pay a price by not complying with the police officers in this day and age, particularly if you're Black and Brown. So in some ways, the [00:15:00.00] challenge of Dolly Mapp is still with us. With people walking down the street today, we can always say, no, you're not going to do that. But as we've seen recently, these types of situations can escalate so quickly and so violently and sometimes even leading to death that it makes us think, does the Fourth Amendment actually really protect us in the way that the framers intended as a as a shield against unlawful police activity? Or is it something that courts are going to look at as a mere inconvenience to what is essentially a law enforcement tactic that they ultimately support? And these are questions that we're confronting in our society today.

Nick Capodice: [00:15:49.85] Mapp v Ohio, nineteen sixty one. We got lots of other Supreme Court cases coming up in the next few weeks, so stay tuned. And if any of you are curious about the exclusionary rule and its exceptions, [00:16:00.00] we made a fun little video on our website, civics101podcast.org.

Nick Capodice: [00:16:10.70] Today's episode was produced by me, Nick Capodice with You Hannah McCarthy, thank you.

Hannah McCarthy: [00:16:15.44] Oh, you're welcome. Our staff includes Jackie Fulton. Erika Janik is our executive producer and runs the numbers for two Pillsbury.

Nick Capodice: [00:16:21.71] Music in this episode by Scott Holmes, Randy Butternubbs, Eric Kilkenny, KiLoKaz, Blue Dot Sessions and Alex Ball, who composed this wonderful 70s cop themed show music you're hearing right now. You can check him out on Spotify.

Hannah McCarthy: [00:16:34.85] Civics 101 is made possible in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.


 
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Electoral College Addendum

Today we’re revisiting one of the most requested and controversial topics from Civics 101; the electoral college. High School social studies teacher Neal Walter Young talks about some of the points he debates with his class when they dissect how we vote for the people who vote for the president.


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Civics 101 is supported in part by the Corporation for Public Broadcasting,

The Electoral College votes, which occurred today, reflect the fact that even in the face of a public health crisis, unlike anything we've experienced in our lifetime, people voted. They voted in record numbers.

Nick Capodice:
Of the many, many questions that we've received over the last few months and episodes we've made in response, there is one topic that has dominated over all the others, the Electoral College.

Hannah McCarthy:
And it's not surprising. The 2020 election, like many elections before it, brought conversations about the Electoral College to the fore. But we've already done a big ol episode on the Electoral College for our starter kit series.

Nick Capodice:
That we did, Hannah, that we did. But before we close the book on the complicated system of how we vote for the people who vote for the president, I'd like to introduce you to Neal.

Neal Walter Young:
My name is Neal Walter Young. I am a teacher at Lawrence High School in Fairfield Maine. Go Bulldogs.

Nick Capodice:
Neal is a member of our cabinet. That's a group of educators from across the country who are designing lesson plans to pair with our episodes. And he wrote me a lovely e-mail about our Electoral College episode. He said that every year he has a lengthy, healthy debate in his class about the pros and the cons of the Electoral College system. And he wanted to share some of those points with us, some ideas that didn't make it into that episode. And he wanted to fix something we flat out got wrong. So that's what we're going to do today. I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy,

Nick Capodice:
And this is an addendum to our episode on the Electoral College.

Hannah McCarthy:
We got something flat out wrong. We got to start with that.

Nick Capodice:
In the episode, a guest misspoke and said that Maine and Nebraska each have two congressional districts.

Neal Walter Young:
And this is just Maine pride showing through. Even our own public radio misses this one sometimes. So Maine has its lonely two. Only two representatives in the House. Nebraska getting bigger, has three.

Hannah McCarthy:
Got it. And Maine has four electoral votes and Nebraska five. All right. What's next?

Nick Capodice:
The second point Neil made is that since we released the episode, there's been a 2020 Supreme Court ruling, Chiafolo v Washington that affects the Electoral College.

Mr. Chief Justice, with this court case, the question in these cases is straightforward. Do the states have the power to control the law of how an elector may vote?

Hannah McCarthy:
This is the case regarding faithless electors, right? Electors who vote for a candidate other than the one who won the state.

Nick Capodice:
Yeah.

Neal Walter Young:
In the Chiafolo ruling, what the Supreme Court said is that states can choose to force the hand of the electors in a number of ways. But what it makes clear is that this idea of faithless electors, those can be a thing of the past. There are many states in which there is no punishment whatsoever. And even those where there is a punishment, it tends not to be more than a thousand dollar fine. And we're in a close election and someone can switch and slap on the hand is a thousand dollars. That doesn't act as a really good bulwark against any funny business happening.

Hannah McCarthy:
So Neal's arguing that the Chiafolo ruling stops any funny business, as he put it, and could put an end to faithless electors, which would mean that electors would have to vote for the candidate who won the state no matter what they feel,

Nick Capodice:
Unless the candidate died before the electoral vote.

Hannah McCarthy:
But there is still the argument to be made that the framers wanted an elector to be able to be faithless, to generally be guided by the vote of the people, but to be able to make a judgment call on who to vote for.

Nick Capodice:
Right. But if you're someone who's all about the popular vote, it is hard to also be someone in favor of faithless electors because they're voting against the will of the people of that state. And this brings us to our third and final point of Neal's.

Neal Walter Young:
This is funny. I didn't realize it was like a legitimate rebuttal to that. So I hope any of the presenters on that, people who are legitimately many times more intelligent. So. In the last episode, it made it seem that the only argument for keeping the Electoral College is that it ensures smaller states to have a say in the process. But there are really many more areas of debate and reasons than just about this small state idea. If we think back to the constitutional convention, we think of the greatest minds at the time coming together to develop this new nation, and they were able to come to agreement on beautiful solutions to many difficult problems. We see federalism, we see separation of powers. And then when they're going to the end of deciding how to elect their president, no one likes the solution, right? It's thrown out. Should it be a direct popular vote? No, no, no, no. This isn't going to do. What about if we give it to Congress and they're like, no, that gets rid of separation of powers and they end up leaving for the weekend. They leave it to a committee to come up with a solution. And the solution they come up with is Byzantine.

Neal Walter Young:
It's complicated. It has all these different inner working parts. And essentially what they decide is that this will be good enough because we all already know that Washington is going to be president. So whatever the kinks are in this system, they'll be worked out as time goes along.

Nick Capodice:
Neal pointed out to me that early on some states like New York, didn't do a vote of the people at all. The state legislature appointed electors until 1820. It wasn't until 1828 that this idea that the people's vote should influence who the electors pick for president became a national norm.

Neal Walter Young:
A lot of the discussions we have about the Electoral College today are rooted in why don't we just use the popular vote? So I think it's helpful to remind ourselves that throughout history, when do you even have a popular vote? Is it 1828 when only white males can vote, albeit white males don't need to own land anymore at that point, is it? After we passed the 15th Amendment?

Nick Capodice:
The 15th Amendment, by the way, prohibits the federal government from denying a citizen's right to vote based on, quote, race, color or previous condition of servitude.

Neal Walter Young:
Is it after the 19th Amendment and now women are their right to vote, is being protected against states? Who would deny them that? Right? Is it up through the 1960s where we're talking about, again, 10 percent of African-Americans being registered to vote in Mississippi? So when we talk about popular vote, we should understand what we mean by that term and kind of what standard we'd like to set and feel comfortable for. There's never been an election where the majority of the American people have voted for a specific candidate.

Hannah McCarthy:
What does he mean by that?

Nick Capodice:
Let's take 1968 as an example.

On our board showing the popular vote. Hubert Humphrey is still ahead, but barely there. Each now has roughly 41 one percent. Humphrey has a lead.

Nick Capodice:
That election, Richard Nixon versus Hubert Humphrey, had the highest turnout in modern history, with 60 percent of eligible voters voting. Nixon won the popular vote by less than one percentage point. And we don't know how that other 40 percent of people would have voted.

Neal Walter Young:
If we replace it, what are we comfortable with to ensure that if a candidate we have five, six, seven candidates such as think about elections in the recent past in Mexico, where you do have candidates winning with twenty three percent of the vote, and then step back and say what percentage of eligible voters even participated? And then you start getting down to very, very small percentages of the entire country's population. And does that still lend as much legitimacy in the eyes of voters?

Nick Capodice:
And that hypothetical switch to a popular vote system is also pretty tricky.

Neal Walter Young:
Another thing that comes in is that the electoral system is handled at the state level. Right. And this is one of the hard parts about the Electoral College is it's really difficult to change one part. You kind of have to change multiple parts that come together. So if we change to a popular vote, how is that regulated through each state? Because every state does its elections a little bit differently. Who's allowed to vote? Felons being a fantastic example. Can you vote from within jail, as you can in the state of Maine and Vermont? Are there voter ID laws in your state? Can you have no excuse absentee ballots or do you need an excuse? So we have to figure out how do we ensure that the requirements in each state are the same, giving up some power to the federal government? Is that a good thing or a bad thing?

Hannah McCarthy:
I am truly grateful that Neal brought these issues up. I'm going to be up all night thinking about this.

Nick Capodice:
Me too. And it was especially helpful to hear from somebody who has this debate in his classroom. Year after year.

Neal Walter Young:
I have no idea what the right answer is, it's it's one of those things where I really have no clue Electoral College, good or bad. It's one of those things where you kind of get stuck in the mud a little bit, where you're like, well, I know what the problems are, the devil, you know. And then just enough unknowns about if we go to popular vote, enough that make me nervous of what are we going to find out about this after it's in place.

Nick Capodice:
So there's the addendum to our Electoral College episode, by the way, if you're interested in the work of the cabinet, which is our advisory board of teachers, we're releasing their Civics 101 activities at Civics101podcast.org/lessonplans. All right.

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Transcript

Civics 101 is supported in part by the Corporation for Public Broadcasting,

The Electoral College votes, which occurred today, reflect the fact that even in the face of a public health crisis, unlike anything we've experienced in our lifetime, people voted. They voted in record numbers.

Nick Capodice: Of the many, many questions that we've received over the last few months and episodes we've made in response, there is one topic that has dominated over all the others, the Electoral College.

Hannah McCarthy: And it's not surprising. The 2020 election, like many elections before it, brought conversations about the Electoral College to the fore. But we've already done a big ol episode on the Electoral College for our starter kit series.

Nick Capodice: That we did, Hannah, that we did. But before we close the book on the complicated system of how we vote for the people who vote for the president, I'd like to introduce you to Neal.

Neal Walter Young: My name is Neal Walter Young. I am a teacher [00:01:00.00] at Lawrence High School in Fairfield Maine. Go Bulldogs.

Nick Capodice: Neal is a member of our cabinet. That's a group of educators from across the country who are designing lesson plans to pair with our episodes. And he wrote me a lovely e-mail about our Electoral College episode. He said that every year he has a lengthy, healthy debate in his class about the pros and the cons of the Electoral College system. And he wanted to share some of those points with us, some ideas that didn't make it into that episode. And he wanted to fix something we flat out got wrong. So that's what we're going to do today. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy,

Nick Capodice: And this is an addendum to our episode on the Electoral College.

Hannah McCarthy: We got something flat out wrong. We got to start with that.

Nick Capodice: In the episode, a guest misspoke and said that Maine and Nebraska each have two congressional districts.

Neal Walter Young: And this is just Maine pride showing through. Even our own public radio misses this one sometimes. So Maine has its lonely two. Only two representatives [00:02:00.00] in the House. Nebraska getting bigger, has three.

Hannah McCarthy: Got it. And Maine has four electoral votes and Nebraska five. All right. What's next?

Nick Capodice: The second point Neil made is that since we released the episode, there's been a 2020 Supreme Court ruling, Chiafolo v Washington that affects the Electoral College.

Mr. Chief Justice, with this court case, the question in these cases is straightforward. Do the states have the power to control the law of how an elector may vote?

Hannah McCarthy: This is the case regarding faithless electors, right? Electors who vote for a candidate other than the one who won the state.

Nick Capodice: Yeah.

Neal Walter Young: In the Chiafolo ruling, what the Supreme Court said is that states can choose to force the hand of the electors in a number of ways. But what it makes clear is that this idea of faithless electors, [00:03:00.00] those can be a thing of the past. There are many states in which there is no punishment whatsoever. And even those where there is a punishment, it tends not to be more than a thousand dollar fine. And we're in a close election and someone can switch and slap on the hand is a thousand dollars. That doesn't act as a really good bulwark against any funny business happening.

Hannah McCarthy: So Neal's arguing that the Chiafolo ruling stops any funny business, as he put it, and could put an end to faithless electors, which would mean that electors would have to vote for the candidate who won the state no matter what they feel,

Nick Capodice: Unless the candidate died before the electoral vote.

Hannah McCarthy: But there is still the argument to be made that the framers wanted an elector to be able to be faithless, to generally be guided by the vote of the people, but to be able to make a judgment call on who to vote for.

Nick Capodice: Right. But if you're [00:04:00.00] someone who's all about the popular vote, it is hard to also be someone in favor of faithless electors because they're voting against the will of the people of that state. And this brings us to our third and final point of Neal's.

Neal Walter Young: This is funny. I didn't realize it was like a legitimate rebuttal to that. So I hope any of the presenters on that, people who are legitimately many times more intelligent. So. In the last episode, it made it seem that the only argument for keeping the Electoral College is that it ensures smaller states to have a say in the process. But there are really many more areas of debate and reasons than just about this small state idea. If we think back to the constitutional convention, we think of the greatest minds at the time coming together to develop this new nation, and they were able to come to agreement [00:05:00.00] on beautiful solutions to many difficult problems. We see federalism, we see separation of powers. And then when they're going to the end of deciding how to elect their president, no one likes the solution, right? It's thrown out. Should it be a direct popular vote? No, no, no, no. This isn't going to do. What about if we give it to Congress and they're like, no, that gets rid of separation of powers and they end up leaving for the weekend. They leave it to a committee to come up with a solution. And the solution they come up with is Byzantine.

Neal Walter Young: It's complicated. It has all these different inner working parts. And essentially what they decide is that this will be good enough because we all already know that Washington is going to be president. So whatever the kinks are in this system, they'll be worked out as time goes along.

Nick Capodice: Neal pointed out to me that early on some states like New York, didn't do a vote of the people at all. The state legislature appointed [00:06:00.00] electors until 1820. It wasn't until 1828 that this idea that the people's vote should influence who the electors pick for president became a national norm.

Neal Walter Young: A lot of the discussions we have about the Electoral College today are rooted in why don't we just use the popular vote? So I think it's helpful to remind ourselves that throughout history, when do you even have a popular vote? Is it 1828 when only white males can vote, albeit white males don't need to own land anymore at that point, is it? After we passed the 15th Amendment?

Nick Capodice: The 15th Amendment, by the way, prohibits the federal government from denying a citizen's right to vote based on, quote, race, color or previous condition of servitude.

Neal Walter Young: Is it after the 19th Amendment and now women are their right to vote, is being protected against states? Who would deny them that? Right? Is it up through the 1960s where we're talking about, again, 10 percent of African-Americans being registered to vote [00:07:00.00] in Mississippi? So when we talk about popular vote, we should understand what we mean by that term and kind of what standard we'd like to set and feel comfortable for. There's never been an election where the majority of the American people have voted for a specific candidate.

Hannah McCarthy: What does he mean by that?

Nick Capodice: Let's take 1968 as an example.

On our board showing the popular vote. Hubert Humphrey is still ahead, but barely there. Each now has roughly 41 one percent. Humphrey has a lead.

Nick Capodice: That election, Richard Nixon versus Hubert Humphrey, had the highest turnout in modern history, with 60 percent of eligible voters voting. Nixon won the popular vote by less than one percentage point. And we don't know how that other 40 percent of people would have voted.

Neal Walter Young: If we replace it, what are we comfortable with to ensure that if a candidate we have five, six, seven candidates such [00:08:00.00] as think about elections in the recent past in Mexico, where you do have candidates winning with twenty three percent of the vote, and then step back and say what percentage of eligible voters even participated? And then you start getting down to very, very small percentages of the entire country's population. And does that still lend as much legitimacy in the eyes of voters?

Nick Capodice: And that hypothetical switch to a popular vote system is also pretty tricky.

Neal Walter Young: Another thing that comes in is that the electoral system is handled at the state level. Right. And this is one of the hard parts about the Electoral College is it's really difficult to change one part. You kind of have to change multiple parts that come together. So if we change to a popular vote, how is that regulated through each state? Because every state does its elections a little bit differently. Who's allowed to vote? Felons being a fantastic example. Can you vote from within jail, as you can in the state of Maine and Vermont? Are [00:09:00.00] there voter ID laws in your state? Can you have no excuse absentee ballots or do you need an excuse? So we have to figure out how do we ensure that the requirements in each state are the same, giving up some power to the federal government? Is that a good thing or a bad thing?

Hannah McCarthy: I am truly grateful that Neal brought these issues up. I'm going to be up all night thinking about this.

Nick Capodice: Me too. And it was especially helpful to hear from somebody who has this debate in his classroom. Year after year.

Neal Walter Young: I have no idea what the right answer is, it's it's one of those things where I really have no clue Electoral College, good or bad. It's one of those things where you kind of get stuck in the mud a little bit, where you're like, well, I know what the problems are, the devil, you know. And then just enough unknowns about if we go to popular vote, enough that make me nervous of what are we going to find out about this after it's in place.

Nick Capodice: So there's the addendum to our Electoral College [00:10:00.00] episode, by the way, if you're interested in the work of the cabinet, which is our advisory board of teachers, we're releasing their Civics 101 activities at Civics101podcast.org/lessonplans.


 
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Insurrection, Protest, Terrorism, Sedition, Coup

When it comes to discussing the events at the Capitol building on January 6, teachers have risen to the challenge. Meredith Baker, who teaches social studies in Virginia, suggests the first step should be defining five very charged terms. And that’s what we do today.

To view the archives of #sschat and see how teachers are reacting to current events in their classrooms, click here.

Also, click here to see the report on terrorism in the United States from the Center for Strategic and International Studies.


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

We were just told that there has been tear gas in the rotunda and we're being instructed to each of us get gas masks...

Nick Capodice:
All right, I don't usually come to Civics 101 episodes from a personal standpoint. We have a topic we want to explore. We call guests to explain it to us. We edit it together as a team, and we try to maintain a professional distance from the subject. But I frankly don't know any other way to start this episode. I'm just going to say I was sick and angry when I saw the attack on the Capitol on January 6th. And that night I thought, how on earth are we going to talk about this on the show? And thankfully, there was another group of people wrestling with the exact same question. There's this community of social studies and civics educators that we regularly interact with on the show. They're called #sschat. They hold weekly live discussions on Twitter where teachers all over the country share resources and lesson plans. They give advice to each other.

Nick Capodice:
They talk about what their kids are talking about, they air grievances. And they hosted an emergency chat session on the night of the sixth with one question. How are you going to talk about this with your students tomorrow?

Nick Capodice:
Meredith Baker, who teaches social studies in Virginia, said she would focus purely on definitions. So that's what we're going to do today.

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

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
And today we're going to talk about some basic dictionary definitions with Meredith and hear how her students responded to the events on January 6th.

Meredith Baker:
I wanted to make sure that we did that in class because in my class, meaning matters. Context matters, language matters, accuracy matters. Truth matters. And so I wanted to make sure we were all using the same terms in the same way.

Hannah McCarthy:
What terms did she define?

Nick Capodice:
Insurrection, protest, coup, terrorism and sedition.

Hannah McCarthy:
OK, so let's go through these one at a time. What is insurrection?

Meredith Baker:
So insurrection is defined as the act or instance of open revolt against civil authority or a constituted government.

Nick Capodice:
I asked Meredith, was the attack on the Capitol on the 6th an insurrection?

Meredith Baker:
Absolutely. I think that having looked at the headlines and reading the accounts of what happened, this was a revolt against a constituted government.

Hannah McCarthy:
Are there other instances of insurrections in U.S. history?

Nick Capodice:
Yeah, one of the most famous ones has come up a lot in our show, Shay's Rebellion. In 1786, Daniel Shays and his followers led an armed insurrection in Massachusetts to protest foreclosures of farms due to debt. And it was one of the events that showed the weaknesses of the Articles of Confederation and ultimately led to the need for a new constitution.

Hannah McCarthy:
Let's move on to protest.

Meredith Baker:
A protest is participation in a public demonstration in opposition to something.

Hannah McCarthy:
I feel like these terms aren't mutually exclusive, right? Like a protest can also be an insurrection.

Meredith Baker:
Right. Or it can start as one thing and turn into another.

Hannah McCarthy:
This next term is one that I am most eager to define because it's been hinted at in media coverage and historians have debated its usage to describe the events of the 6th. What exactly is a coup?

Meredith Baker:
A coup is defined as the removal of an existing government from power, usually through violent means. And typically it's an illegal, unconstitutional seizure of power by a political faction in the military or a dictator.

Hannah McCarthy:
Has there ever been a coup in U.S. history?

Meredith Baker:
So in Wilmington in 1898, Wilmington, North Carolina, there was a fusionist government that was made up of African-Americans and and whites and that was violently overthrown. And they were duly elected. They were removed from power forcibly. So, yes, that happened on a state level.

Nick Capodice:
An unknown number of Black Americans were murdered by white supremacists in Wilmington in November of 1898 with the express purpose of overthrowing its multiracial government. Isaac Stanley-Baker in The Washington Post referred to this as the only successful coup in American history.

Hannah McCarthy:
Where did Meredith and her students stand on the usage of that term for January 6th, 2021?

Meredith Baker:
I've seen this called a coup or an attempted coup, but when my class discussed this definition, we had the same reservations as many historians that I've read, and that is that this was not, to our knowledge, backed by a military power or a single government entity or something like that to give it that designation. So my students were hesitant to call it a coup. And I think many other reporters also weren't willing to go that far because they didn't feel like it met the criteria for that attempted or failed. Sometimes I've seen that used but my students in my class did not feel that that was a completely accurate term.

Nick Capodice:
I do want to add that it is not yet clear that the explicit intentions of the group as a whole on January 6th were to overthrow the U.S. government. And yes, some in the crowd called it a revolution, but we just don't have the information yet to know. So the next term Meredith defined was terrorism.

Meredith Baker:
We just used a standard dictionary definition of terrorism, and that would be the use of violence or the threat of violence, especially against civilians in the pursuit of political goals.

Nick Capodice:
In a recent report by the Center for Strategic and International Studies, they found between 1994 and 2020, there have been 893 terrorist attacks and plots in the United States, right wing terrorists perpetrated 57 percent of all attacks and plots during this period, and left wing terrorists did 25 percent. We're going to put a link to the whole report on the website because it merits a thorough read.

Hannah McCarthy:
And finally, let's define sedition.

Meredith Baker:
Sedition is conduct or speech inciting people to rebel against the authority of a state. Interestingly enough, my students did not have a lot of disagreement over this one.

Nick Capodice:
There have been many incidents of sedition in U.S. history. The recent second impeachment of Donald Trump was on the charge of incitement of insurrection, which is by itself the definition of sedition.

Hannah McCarthy:
So how did it go from Meredith on that day with her class? Did her students come to a consensus on these terms?

Meredith Baker:
My students come from a range of opinions and backgrounds. They're very bright and they're also very respectful of each other. There definitely was some pushback. Some students took exception to the way that the insurrection was covered in the news. Some of them brought up issues of previous riots and protests. But we did have disagreement in the class, but it remained respectful.

Nick Capodice:
Well, those are some definitions today on Civics 101, a huge thank you to all of those teachers out there, not just for helping our youth navigate and understand the world, but for helping us do the same. If any of you out there are interested in how teachers are teaching civics in the past and present of America, you should view all the archives of those chats at sschat.org

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Transcript

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

[00:00:06] We were just told that there has been tear gas in the rotunda and we're being instructed to each of us get gas masks...

Nick Capodice: [00:00:18] All right, I don't usually come to Civics 101 episodes from a personal standpoint. We have a topic we want to explore. We call guests to explain it to us. We edit it together as a team, and we try to maintain a professional distance from the subject. But I frankly don't know any other way to start this episode. I'm just going to say I was sick and angry when I saw the attack on the Capitol on January 6th. And that night I thought, how on earth are we going to talk about this on the show? And thankfully, there was another group of people wrestling with the exact same question. There's this community of social studies and civics educators that we regularly interact with on the show. They're called #sschat. They hold weekly live discussions on Twitter where teachers all over the country share resources and lesson plans. They give advice to each other.

Nick Capodice: [00:01:14] They talk about what their kids are talking about, they air grievances. And they hosted an emergency chat session on the night of the sixth with one question. How are you going to talk about this with your students tomorrow?

Nick Capodice: [00:01:27] Meredith Baker, who teaches social studies in Virginia, said she would focus purely on definitions. So that's what we're going to do today.

Nick Capodice: [00:01:39] You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:01:42] I'm Hannah McCarthy.

Nick Capodice: [00:01:43] And today we're going to talk about some basic dictionary definitions with Meredith and hear how her students responded to the events on January 6th.

Meredith Baker: [00:01:51] I wanted to make sure that we did that in class because in my class, meaning matters. Context matters, language matters, accuracy matters. Truth matters. And so [00:02:00] I wanted to make sure we were all using the same terms in the same way.

Hannah McCarthy: [00:02:04] What terms did she define?

Nick Capodice: [00:02:05] Insurrection, protest, coup, terrorism and sedition.

Hannah McCarthy: [00:02:12] OK, so let's go through these one at a time. What is insurrection?

Meredith Baker: [00:02:17] So insurrection is defined as the act or instance of open revolt against civil authority or a constituted government.

Nick Capodice: [00:02:25] I asked Meredith, was the attack on the Capitol on the 6th an insurrection?

Meredith Baker: [00:02:29] Absolutely. I think that having looked at the headlines and reading the accounts of what happened, this was a revolt against a constituted government.

Hannah McCarthy: [00:02:41] Are there other instances of insurrections in U.S. history?

Nick Capodice: [00:02:44] Yeah, one of the most famous ones has come up a lot in our show, Shay's Rebellion. In 1786, Daniel Shays and his followers led an armed insurrection in Massachusetts to protest foreclosures of farms due to debt. And it was one of the events that showed the weaknesses of the Articles of Confederation and ultimately led to the need for a new constitution.

Hannah McCarthy: [00:03:04] Let's move on to protest.

Meredith Baker: [00:03:06] A protest is participation in a public demonstration in opposition to something.

Hannah McCarthy: [00:03:11] I feel like these terms aren't mutually exclusive, right? Like a protest can also be an insurrection.

Meredith Baker: [00:03:17] Right. Or it can start as one thing and turn into another.

Hannah McCarthy: [00:03:20] This next term is one that I am most eager to define because it's been hinted at in media coverage and historians have debated its usage to describe the events of the 6th. What exactly is a coup?

Meredith Baker: [00:03:32] A coup is defined as the removal of an existing government from power, usually through violent means. And typically it's an illegal, unconstitutional seizure of power by a political faction in the military or a dictator.

Hannah McCarthy: [00:03:44] Has there ever been a coup in U.S. history?

Meredith Baker: [00:03:47] So in Wilmington in 1898, Wilmington, North Carolina, there was a fusionist government that was made up of African-Americans and and whites and that [00:04:00] was violently overthrown. And they were duly elected. They were removed from power forcibly. So, yes, that happened on a state level.

Nick Capodice: [00:04:08] An unknown number of Black Americans were murdered by white supremacists in Wilmington in November of 1898 with the express purpose of overthrowing its multiracial government. Isaac Stanley-Baker in The Washington Post referred to this as the only successful coup in American history.

Hannah McCarthy: [00:04:25] Where did Meredith and her students stand on the usage of that term for January 6th, 2021?

Meredith Baker: [00:04:31] I've seen this called a coup or an attempted coup, but when my class discussed this definition, we had the same reservations as many historians that I've read, and that is that this was not, to our knowledge, backed by a military power or a single government entity or something like that to give it that designation. So my students were hesitant to call it a coup. And I think many other reporters also weren't willing to go that far because they didn't feel like it met the criteria for that attempted or failed. Sometimes I've seen that used but my students in my class did not feel that that was a completely accurate term.

Nick Capodice: [00:05:19] I do want to add that it is not yet clear that the explicit intentions of the group as a whole on January 6th were to overthrow the U.S. government. And yes, some in the crowd called it a revolution, but we just don't have the information yet to know. So the next term Meredith defined was terrorism.

Meredith Baker: [00:05:36] We just used a standard dictionary definition of terrorism, and that would be the use of violence or the threat of violence, especially against civilians in the pursuit of political goals.

Nick Capodice: [00:05:46] In a recent report by the Center for Strategic and International Studies, they found between 1994 and 2020, there have been 893 terrorist attacks and plots in the United States, right wing terrorists perpetrated 57 percent [00:06:00] of all attacks and plots during this period, and left wing terrorists did 25 percent. We're going to put a link to the whole report on the website because it merits a thorough read.

Hannah McCarthy: [00:06:09] And finally, let's define sedition.

Meredith Baker: [00:06:11] Sedition is conduct or speech inciting people to rebel against the authority of a state. Interestingly enough, my students did not have a lot of disagreement over this one.

Nick Capodice: [00:06:22] There have been many incidents of sedition in U.S. history. The recent second impeachment of Donald Trump was on the charge of incitement of insurrection, which is by itself the definition of sedition.

Hannah McCarthy: [00:06:34] So how did it go from Meredith on that day with her class? Did her students come to a consensus on these terms?

Meredith Baker: [00:06:40] My students come from a range of opinions and backgrounds. They're very bright and they're also very respectful of each other. There definitely was some pushback. Some students took exception to the way that the insurrection was covered in the news. Some of them brought up issues of previous riots and protests. But we did have disagreement in the class, but it remained respectful.

Nick Capodice: [00:07:09] Well, those are some definitions today on Civics 101, a huge thank you to all of those teachers out there, not just for helping our youth navigate and understand the world, but for helping us do the same. If any of you out there are interested in how teachers are teaching civics in the past and present of America, you should view all the archives of those chats at sschat.org


 
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Ask Civics 101: Who Are the United States Capitol Police?

With the January 6th insurrection at the Capitol Building, the United States Capitol Police (USCP) were thrust into the spotlight. How is this agency different from the Secret Service? We explore the founding of the USCP and some of the challenges they have faced while protecting Congress and the Capitol grounds.


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

Jacqui Fulton:
With the January six insurrection at the Capitol Building, the United States Capitol Police have been thrust into the spotlight underprepared, overwhelmed, complicit in some of the ways of the Capitol.

News Archive:
Police have been described after a pro Trump mob stormed the Capitol Wednesday evening. One officer dead and another on leave after killing a protester.

This is Civics 101.I'm Jacqui Fulton. And today we're looking at the United States Capitol Police. Who are they and what is their charge?

News Archive:
Heavy cordons of police and soldiers had thrown about the capital and the president is here.

Jacqui Fulton:
The Capitol Police are a security force slash police department hybrid. They are part of the legislative branch. Their stated mission, protect Congress.

News Archive:
The Republican members of Congress were getting ready for a charity baseball game against the Democrats. When the piercing sound of gunfire shattered the peace of their morning practice in Alexandria, Virginia, the American people to know that, but for the fact that the Capitol Police who returned fire and protected us, there would have been a lot more people severely injured and they fought back even though they were wounded. That's correct.

Jacqui Fulton:
But they're more than bodyguards for the 535 members of Congress. It also protects staff, millions of visitors a year, and the family of Congress members, wherever they are in the United States.

News Archive:
The United States Capitol Police and hazardous materials outfits, and they put some sort of suspicious package, which is why this building has been evacuated.

Jacqui Fulton:
They enforced traffic regulations.

News Archive:
Washington, D.C. Capitol Hill was the scene of a car chase today that ended not far from the halls of Congress.

Jacqui Fulton:
They protect the buildings and grounds of the United States Capitol complex, which is big. The campus covers over two hundred and seventy four acres with monuments, House and Senate offices to lobby Congress, Supreme Court and more.

Jacqui Fulton:
When the Capitol building first opened in 1900, a lone watchman was hired to protect it.John Golding but the job was too big for John Allen. Security incidents kept happening. A tipping point was the assault of President John Quincy Adams son under the Capitol Rotunda. His nose was pulled and he was slapped an invitation to door. In response, his father founded the United States Capitol Police in 1828 for a Capitol watchman were given full law enforcement authority.

Jacqui Fulton:
The force has grown to more than 2300 officers and employees, their yearly budget is nearly half a billion dollars considering their small jurisdiction there.

Jacqui Fulton:
One of the most well-funded police departments in America, they even have their own intelligence unit. But that hasn't been enough to prevent all security incidents. There have been assaults, bombings, shootings on the Capitol ground. Six officers have died in the line of duty, two in an attack by gunmen in 1998. They were given the rare honor of lying in state under the Capitol Rotunda this evening once they lowered the flag.

News Archive:
They immediately raised it again halfway and left it there. A sign of mourning for the men who died under the dome.

Jacqui Fulton:
After security incidents happen, investigations are done to determine what went wrong.

CSPAN:
Yesterday, the House administration committee looked at security issues at the U.S. Capitol. Since September 11, members heard from the architect..

Jacqui Fulton:
Normally more money is allocated to beef up the force. The incident on January six will be dissected, and it's likely the Capitol Police will again have to adapt new security measures.

Jacqui Fulton:
That does it for what are the United States Capitol Police on Civics 101 you can listen to all of our episodes at Civics101podcast.org or wherever you get your podcasts.

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Ask Civics 101: Inauguration Day

The Constitution makes it clear that the four-year presidential term begins and ends at noon on January 20th. The time, date, and the words of the presidential oath are committed to ink in the law of the land, but the rest of it- the pomp and circumstance, the parade, the balls, and crowds? Yeah, we invented the rest of it.

Journalist and media consultant Brenna Williams takes us through the day that the incumbent or the President-elect becomes the leader of the free world.

 

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Ask Civics 101: What Is Moving Day Like at the White House?

When a new first family sets foot inside of the White House on Inauguration Day they are walking into their new home for the next, usually, four to eight years. Their furniture is in the living room, their pictures are on the wall, and their clothes are in the closets. The only hitch is that the outgoing first family doesn’t move out until inauguration day. It takes approximately six hours to totally transform a 132-room mansion.

The Washington Post’s Bonnie Berkowitz investigated this process a few years ago and she shares what she uncovered.

 

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

Hannah McCarthy:
Hannah here from Civics 101, the following is an episode about how things usually go during the presidential transfer of families, and it's a pretty lighthearted one, but we are also releasing it days before a presidential family transfer that will occur amidst a health crisis and political strife here in the country. So listen on if you'd like a little lift or save this one for sunnier days. Thanks for being here.

We made a whole episode about this long doldrums period between Election Day and Inauguration Day. We vote for a presidential candidate and the winner does not actually get the presidency for two and a half months, however, there is one element to all of this that is so vast, it is hard to believe the civics one one. I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

And today we're tackling the enormous behind the scenes magic trick that is the White House family transfer, otherwise known as moving day.

Bonnie Berkowitz:
This huge, chaotic, six hours, organized, chaotic, six hours, I guess I should say, on Inauguration Day.

Hannah McCarthy:
This is Bonnie Berkowitz.

Bonnie Berkowitz:
And I'm a graphics reporter at The Washington Post. That means I write stories that tend to have a lot of visuals with them.

Hannah McCarthy:
One such story being that of how you get one first family out of the White House and another first family in.

Nick Capodice:
And did she say this happens in six hours?

Hannah McCarthy:
Well, there's a good deal of prep that can happen as soon as the election is over. Bonnie says the extent of that might depend on how the outgoing president feels about the transition.

Like if the incumbent lost the election or is simply at the end of a presidential term.

Bonnie Berkowitz:
They start compiling a big binder for all of the planning and just various things. And then as soon as the election happens, that's when it really rolls into gear. They start talking to the incoming family. The first lady's very, very involved. They send a detailed personal questionnaire. About just anything you can think of, what kind of shampoo you like, what kind of dental floss, what's your shoe size, because the White House has a bowling alley, so you need bowling shoes. What kind of movies do you like? Do you have midnight snacks? What do you like to snack on? What are you allergic to? What are your family's newspaper preferences? What kind of movies should we put in the theater? The linens. You would like the temperature in the White House. Do you like it warm? Do you like it cool. All of these things that they will eventually use to make the White House home for the new family for four or eight years.

Hannah McCarthy:
The first family, usually the first lady, also gets to select whatever furniture and art they want from a top secret White House warehouse in Maryland that has every piece of furniture ever used in the White House that wasn't a personal belongings of the first family.

Nick Capodice:
That's fascinating. OK, so how on earth does this all get loaded in in the space of six hours?

Bonnie Berkowitz:
Around 4:00 a.m., the staff shows up.

They may start packing. Everything they're going to be doing, though, until the outgoing family leaves is going to be very much behind the scenes because they don't want the family brushing their teeth and seeing somebody packing the shower caddy or something like that.

Nick Capodice:
So it's just White House staff doing this. No outside moving companies or anything?

Hannah McCarthy:
Right. For security reasons, the whole thing is run by the White House chief usher, six or so ushers who work for the chief and the 90 to 100 permanent White House residence staff.

Hannah McCarthy:
A lot of these people have worked there for decades. Anyway, it's about four and a half hours of behind the scenes work and then around 8:30...

Bonnie Berkowitz:
The outgoing family has a good bye with the White House staff, the whole staff gathers and this is apparently very moving because these are the people who have worked with them every day for four years or for eight years, and they just grow so close to them. And it's apparently I mean, people cry. It's very, very sad because think if you've been with somebody for four or eight years and suddenly you're leaving and you're probably not going to interact with them very much anymore, ever, that's about half an hour of tearful goodbyes. And then the first family gets dressed for the inauguration, assuming they're attending, the new president and his family come in for a coffee, a traditional coffee at the White House. There's usually a few people with them, a congressional delegation and around 10:30, they usually leave together for the Capitol for the inauguration.

Hannah McCarthy:
10:30 hits.

And then it happens.

Bonnie Berkowitz:
And literally the second that car pulls away, like the staff waves goodbye and then all heck breaks loose in the White House. The moving trucks come in, everyone splits up into their duties, which they have been prepared. Exactly what they're going to do every five minutes. They have got from 10:30-ish to somewhere between three and five. When the president and first lady come back after the parade, the house has to be done.

Hannah McCarthy:
Staff picks up whatever's left and the outgoing first family's boxes and furniture are loaded into one moving truck. The incoming first family stuff is loaded out of another moving truck and a third moving truck shows up with a treasure trove from the secret warehouse.

Bonnie Berkowitz:
The president is supposed to take office on day one and be hit the ground running so he doesn't have time to organize his sock drawer. So people do that for them. And it's astonishing the things that they do. The Obamas had to have wifi installed during that six hours. They change out light fixtures, all kinds of things. They may have to make repairs. They may have to repaint, touch up a little bit. They can't repaint a whole room that they might have to. They might do some touch up. They might fix some wallpaper, hang clothes in closets, cut out all trash flowers, fresh flowers after flowers everywhere, all kinds of things like that, and the Oval Office, of course, gets a major overhaul.

Nick Capodice:
But what if because, come on, it's only six hours, what if it's not done in time?

Bonnie Berkowitz:
Oh, no, it's ready. And I even asked, what if they run out of toilet paper, and it was as if I asked, how often do you let raccoons run through the wall or something?

I mean, it was as if they could not conceive of the question I was asking.

Nick Capodice:
Ok, so that is the residence and that is truly hard to believe. But what about the whole West Wing?

Bonnie Berkowitz:
Yeah, and that's interesting.

The East and West Wings, the offices are the General Services Administration, and they do a lot, a lot of mostly cleaning, getting rid of papers, any leftover junk.

Nick Capodice:
Now, I have to know if the rumors are true about pranks from outgoing staffers. I heard once that the Clinton administration removed all the WS off of the keyboards before George W. Bush went in office. Do they joke around like this? Are there pranks pulled like this one?

Bonnie Berkowitz:
Apparently somebody left, you know, those drop ceilings.

Somebody put a tuna fish sandwich up in one and left it there. So there was a big mystery trying to figure out where the smell was coming from.

Nick Capodice:
It is nice to know that even in today's world, there's still someone leaving a fish sandwich in the ceiling as a Partheon shot.

Hannah McCarthy:
That's the traditional transfer in a nutshell. I should add, it turns out that in the middle of a pandemic, the government also plans a half million deep clean before the new first family arrives. We've got plenty more on the strangeness of American politics and government. You can check it out at our website, civics101podcast.org.

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Ask Civics 101: What Are Democratic Norms?

Not every guiding principle in the United States is a law. Many are traditions, customs and best practices that someone came up with at one point and stuck. Democratic norms help facilitate a peaceful, respectful, and smoothly-run government. So what happens when norms like respectful deference on the Senate floor or accepting election results are broken?

Susan Stokes, professor of political science at the University of Chicago and Director of the Chicago Center on Democracy, gives us the story.

 

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

Hannah McCarthy:
You're listening to Civics 101, I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
This show is often about understanding a law or a political event or process something written down and codified.

But the truth is, a lot of the time in the US we do things because that's just the way we do them. That's the norm.

Nick Capodice:
So these are things that aren't formal laws, but we still expect people to abide by. Like there's no law that says you must not cut in line at the grocery store, but you just don't do it.

Hannah McCarthy:
Exactly, because if you did, you'd be a jerk. You'd also be setting a bad precedent. You'd be teaching people the wrong lesson, the way I think of it, as if everybody started cutting in line at the grocery store, the simple act of paying for your food would dissolve into chaos. And the same goes for democratic norms.

Susan Stokes:
It's not written down rule that is usually often kind of taken for granted and not even noticed as a rule, until it's violated.

Hannah McCarthy:
This is Susan Stokes. She's a professor of politics at the University of Chicago and director of the Chicago Center on Democracy.

Susan Stokes:
So, you know, to give an example, it sort of goes without saying in general that the that the outgoing president will attend the inauguration of the incoming president. And I'm not sure we would have even thought of that as a norm. We wouldn't have thought hard about why that is helpful or why it is anything more than just like showing up at an event until it now is about to be to be violated or not to be followed.

Nick Capodice:
So these aren't written, but they're customs and traditions like it is customary to address other members of Congress with ridiculously flowery language to not insult a U.S. ally. It's customary for a president to release their tax returns and it's customary for elected officials to eventually accept the results of an election.

Susan Stokes:
What does that do for us? Well, it's part of a kind of peaceful transition of power that is part of the very definition of democracy.

It turns out to be incredibly important.

Hannah McCarthy:
Norms like fancy congressional language during debate that keeps people polite and respectful and let's procedure flow.

Nancy Pelosi:
Thank you, Mr. Speaker. I thank the gentle lady for yielding and congratulate her on her extraordinary leadership.

Hannah McCarthy:
It's basically a step above common courtesy and not punching below the belt. But not all democratic norms are like that.

Susan Stokes:
A lot of these norms actually do help keep our system going. They do help us have a system in which you kind of channel what might be a violent confrontation, conflict into peaceable You mechanisms for adjudicating differences. So, you know, democracy is not about everybody agreeing. It's about shifting from a potentially violent arena to a peaceable arena.

Nick Capodice:
So democratic norms help us maintain courtesy, keep things on schedule and keep the peace. Basically, these are all the little traditions that stitch a functioning democracy together. But I do see a glaring problem here, Hanna. We rely on a lot of these norms, but they aren't laws. It is perfectly legal to ignore them.

Susan Stokes:
You know, to put proper names on it is bad for Democrats and it's bad for Republicans. It's bad for anyone who is invested in a kind of ongoing system in which they can compete for power without risking violence and achieve power. If they have, you know, if they have good ideas and are able to get people to vote for them. So I do think that there should be a very strong bipartisan support for for strengthening these norms.

Nick Capodice:
Are democratic norms ever made into law?

Susan Stokes:
Well, I think we're learning we're learning getting a kind of crash course right now in the 14th Amendment and post civil war rules that were written into the Constitution that were sort of meant to deal with the aftermath and create incentives for it to avoid another sort of violent breaking apart of country and a leaders acting in a kind of treasonous manner.

Hannah McCarthy:
In other words, what might have been considered a democratic norm before the civil war. In this case, office holders engaging in sedition or rebellion became a constitutional law.

After that, norm was violated, which could potentially happen again, if not through a constitutional amendment, then maybe in U.S. code, especially if norms are violated in frightening ways. Like a rebellion. Yeah, like that. In the meantime, these democratic norms that stitch the fabric of our government and politics together should probably still be followed. There's nothing else keeping them alive.

Susan Stokes:
What you don't want is a period of our history in which norms are challenged and shattered. And you have a whole generation of young people thinking, well, those really aren't norms. And therefore, if some leaders don't follow and they. Can't be very important, they can't be we should cast them aside, you know, it's naive to think that those norms are anything real.

Hannah McCarthy:
That does it for democratic norms on Civics 101, you can listen to all of our episodes at Civics101podcast.org or wherever you get your podcasts.

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Ask Civics 101: Has the U.S. Capitol Been Ambushed Before?

The U.S. has a long history of politically motivated violence. The U.S. Capitol building, a symbol of the nation, a very public building, and a working office for thousands of people, can also be a target, as we saw in the unprecedented insurrection on January 6th.


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

Tour:
When you visit the Capitol, you enter through the Capitol Visitor Center, since eighteen hundred, Congress has met here in Washington, D.C. to represent the people and make laws.

Jacqui Fulton:
It's been said that government was invented to prevent violence, but governments can also perpetrate violence.

Tour:
This room was named Emancipation Hall to honor the enslaved people who worked to build the Capitol and become the target of violence.

NPR:
Today, the departing president incited a group of supporters outside the White House. He repeated the lie that he had won the election.

Trump:
We're going to walk down and I'll be there with you. We're going to walk down to the Capitol.

Jacqui Fulton:
The United States Capitol Building, the very symbol of Western democracy, has the scars to prove it.

Newsreel:
In Washington, D.C., ruthless fanatic violence erupted in the halls of Congress. Three men and a woman believed to be members of the Puerto Rican nationalist gang opened fire from the visitors gallery of the House of Representatives.Five congressmen were hit.

Jacqui Fulton:
And I'm Jacqui Fulton. This is Civics 101. Today, we're talking about the history of politically motivated violence at the Capitol Building, the Capitol is one of the nation's most heavily guarded buildings with its own dedicated police force, the United States Capitol Police. But it's also a very public building, a monument opened to citizens and a working office building for thousands of people. The first breach of the capital occurred during the War of 1812, a war between the Americans and the British over territory and trade.

CBS:
4000 British soldiers lay siege to Washington, D.C. and set fire to the U.S. Capitol and the White House. Heat was intense. The glass in the skylights melted, became molten and fell down or chunks.

Jacqui Fulton:
One of the most notable incidents of violence occurred in 1856, the savage beating of Senator Charles Sumner for his abolitionist views by a House member.

Historian:
Preston Brooks walked up to Charles Sumner with raised his cane, made a couple of unfriendly remarks and brought that gold handled, came down on the top of Charles Sumners head.

Jacqui Fulton:
Sumner barely survived his injuries, his blood-stained the Senate floor. President Andrew Jackson narrowly avoided an assassination attempt while attending a funeral at the Capitol in 1835.

Historian:
As the president exited the funeral once drew a pistol from his pocket and fired. But only the cap fired, even though he was 67 and in poor health. The president charged warrants with a cane.

Jacqui Fulton:
The building has been bombed three separate times.

Newsreel:
The single bomb set off by a timing device left the in room, a shambles, demolished, ripping plaster ripped from walls.

Jacqui Fulton:
In 1971 an extremist group, the Weather Underground, a group that used violence to force political and social change, set off a bomb in the men's room right away.

Newsreel:
There was alarm for a time that other bombs might still be hidden inside the Capitol. Police Dogs...

Jacqui Fulton:
Fortunately, no people were injured in any of the bombings. The same cannot be said of shootings in 1998, two police officers died in the line of duty.

Newsreel:
Apparently, the gunman mingled with tourists and approached the Capitol from the east side. He entered by what is called the document door, an entrance that members of Congress share with members of the public. He exchanged gunfire with security officers.

Jacqui Fulton:
While violence in the Capitol isn't unheard of. The insurrection on January 6th is unlike anything that's ever happened before. But eventually, the building was secured and Congress went back to the floor of the Senate and finished the work that had been interrupted.

Pence:
The violence was quelled. The capital is secured and the people's work continues.

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This podcast is a production of New Hampshire Public Radio.

Ask Civics 101: What Happens When One Party Controls Congress and the Presidency?

Once President-elect Joe Biden is sworn in on January 20th, the Democratic Party will be in control of the presidency and both chambers of Congress. What does that mean for legislation?

Dan Cassino of Fairleigh Dickinson University breaks down the pros and cons of unified control as well as divided government.


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Civics 101 is supported in part by the Corporation for Public Broadcasting,

Breaking news from Georgia, where Democrats have picked up at least one Senate seat in the state's highly charged runoff election. CBS News projects the Reverend Raphael Warnock...

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

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
With a special election in Georgia cementing a Senate controlled by the Democratic Party, today, we explore this topic. What happens when one party controls the House, the Senate and the presidency?

Dan Cassino:
So this is what we in political science we call unified control.

Nick Capodice:
This is Dan Cassino, our stalwart civics Virgil and professor of political science at Fairleigh Dickinson University,

Hannah McCarthy:
Unified Control. I gotta remember that one.

Nick Capodice:
Yes. New vocab to keep in your civics back pocket. And again, unified control is when one party controls both chambers of Congress and the presidency.

Dan Cassino:
And unified control, to some extent, is the best case scenario for democracy because we don't have a division of responsibility.

Nick Capodice:
And when Joe Biden is sworn in on January 20th, we will again be in unified control. We were also in it during the first half of President Trump's term. But after the 2018 midterms, we were not in unified control. We were, and here's our second vocab term of the day, in what is called divided government.

Dan Cassino:
Democrats controlled the House. Republicans controlled the Senate and the presidency. If you don't like what's happening, who are you supposed to vote against? You don't know whose fault it is.

Hannah McCarthy:
This is something that we see this very moment. I remember during a 2020 debate, both candidates blamed the other party for not passing a covid-19 relief package.

Why haven't you been able to get them the help? 30 seconds here.

Because Nancy Pelosi doesn't want to approve it. I do.

But you're the president.

I do. But I still have to get unfortunately, that's one of the reasons I think we're going to take over the House.

Because of the Republican leader in the United States Senate said he can't pass it. He will not be able to pass it. He does not have Republican votes. Why is he talking to his Republican friends?

Hannah McCarthy:
How common is unified control? I can't remember too many times in my life that the same party had the White House and both chambers of government.

Nick Capodice:
Yeah, you're right. Divided government has been the norm in modern politics. But prior to the 1960s, with a few notable exceptions, unified control was the norm. President Woodrow Wilson and others criticized divided government for that division of responsibility. Wilson had a rather horrible quote about it. He wrote, How is the schoolmaster the nation to know which boy needs the whipping?

Hannah McCarthy:
Yikes.

Dan Cassino:
Which tells you something about pedagogy in the 1800s right. If I don't like what's happening in Congress, who am I supposed to vote against? Right. I don't know. So both parties can avoid responsibility because they can just blame on the other guy. If Nancy Pelosi doesn't push the policies you want, that's fine. You can just blame it on the Senate or blame it on the president. If the president's policies won't, you can blame it on Nancy Pelosi. There is divided accountability, and that makes it really hard. First off, for Congress to pass anything because our system is set up with multiple veto points. It's very easy to stop a bill from becoming a law and very hard to push it through. So that means it's hard to get anything done under divided government.

Hannah McCarthy:
Ok, so those are some of the downsides of divided government. Are there any potential benefits?

Nick Capodice:
Yeah, sure. The benefits of divided government aren't do different from the benefits of grand sweeping ideas like separation of powers and checks and balances. One party doesn't control everything, so there's a necessity for compromise. The branches are checking each other and so too are the parties.

Dan Cassino:
Under unified government is going to be easier to pass things through in general. But that also means that there's going to be greater accountability. After Obamacare was passed. Right. You've got the 2010 midterm election. Obamacare is pretty popular now. When was first passed, it was not at all popular. And so voters didn't have to look around, say, oh, who do I vote against? If I didn't like Obamacare, they knew exactly who to vote against. And they, in fact, did vote out Democrats in the House and in the Senate as punishment for passing bills that were unpopular at the time.

Hannah McCarthy:
I am loath to quote Spider-Man and Civics one on one episode, but it sounds like Dan's saying with great power comes great responsibility.

Nick Capodice:
The Peter Parker principle is more than apt, Hannah. That's it for today's episode. Remember to submit your questions at our website, civics101podcast.org.

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Transcript

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

[00:00:03] Breaking news from Georgia, where Democrats have picked up at least one Senate seat in the state's highly charged runoff election. CBS News projects the Reverend Raphael Warnock...

Nick Capodice: [00:00:13] You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:00:15] I'm Hannah McCarthy.

Nick Capodice: [00:00:16] With a special election in Georgia cementing a Senate controlled by the Democratic Party, today, we explore this topic. What happens when one party controls the House, the Senate and the presidency?

Dan Cassino: [00:00:28] So this is what we in political science we call unified control.

Nick Capodice: [00:00:32] This is Dan Cassino, our stalwart civics Virgil and professor of political science at Fairleigh Dickinson University,

Hannah McCarthy: [00:00:37] Unified Control. I gotta remember that one.

Nick Capodice: [00:00:40] Yes. New vocab to keep in your civics back pocket. And again, unified control is when one party controls both chambers of Congress and the presidency.

Dan Cassino: [00:00:47] And unified control, to some extent, is the best case scenario for democracy because we don't have a division of responsibility.

Nick Capodice: [00:00:55] And when Joe Biden is sworn in on January 20th, we will again be in unified control. We were also in it during the first half of President Trump's term. But after the 2018 midterms, we were not in unified control. We were, and here's our second vocab term of the day, in what is called divided government.

Dan Cassino: [00:01:11] Democrats controlled the House. Republicans controlled the Senate and the presidency. If you don't like what's happening, who are you supposed to vote against? You don't know whose fault it is.

Hannah McCarthy: [00:01:21] This is something that we see this very moment. I remember during a 2020 debate, both candidates blamed the other party for not passing a covid-19 relief package.

[00:01:31] Why haven't you been able to get them the help? 30 seconds here.

[00:01:35] Because Nancy Pelosi doesn't want to approve it. I do.

[00:01:38] But you're the president.

[00:01:39] I do. But I still have to get unfortunately, that's one of the reasons I think we're going to take over the House.

[00:01:43] Because of the Republican leader in the United States Senate said he can't pass it. He will not be able to pass it. He does not have Republican votes. Why is he talking to his Republican friends?

Hannah McCarthy: [00:01:55] How common is unified control? I can't remember too many times in my life that the same party [00:02:00] had the White House and both chambers of government.

Nick Capodice: [00:02:03] Yeah, you're right. Divided government has been the norm in modern politics. But prior to the 1960s, with a few notable exceptions, unified control was the norm. President Woodrow Wilson and others criticized divided government for that division of responsibility. Wilson had a rather horrible quote about it. He wrote, How is the schoolmaster the nation to know which boy needs the whipping?

Hannah McCarthy: [00:02:28] Yikes.

Dan Cassino: [00:02:28] Which tells you something about pedagogy in the 1800s right. If I don't like what's happening in Congress, who am I supposed to vote against? Right. I don't know. So both parties can avoid responsibility because they can just blame on the other guy. If Nancy Pelosi doesn't push the policies you want, that's fine. You can just blame it on the Senate or blame it on the president. If the president's policies won't, you can blame it on Nancy Pelosi. There is divided accountability, and that makes it really hard. First off, for Congress to pass anything because our system is set up with multiple veto points. It's very easy to stop a bill from becoming a law and very hard to push it through. So that means it's hard to get anything done under divided government.

Hannah McCarthy: [00:03:06] Ok, so those are some of the downsides of divided government. Are there any potential benefits?

Nick Capodice: [00:03:12] Yeah, sure. The benefits of divided government aren't do different from the benefits of grand sweeping ideas like separation of powers and checks and balances. One party doesn't control everything, so there's a necessity for compromise. The branches are checking each other and so too are the parties.

Dan Cassino: [00:03:31] Under unified government is going to be easier to pass things through in general. But that also means that there's going to be greater accountability. After Obamacare was passed. Right. You've got the 2010 midterm election. Obamacare is pretty popular now. When was first passed, it was not at all popular. And so voters didn't have to look around, say, oh, who do I vote against? If I didn't like Obamacare, they knew exactly who to vote against. And they, in fact, did vote out Democrats in the House and in the Senate as punishment for passing bills that were unpopular at the [00:04:00] time.

Hannah McCarthy: [00:04:00] I am loath to quote Spider-Man and Civics one on one episode, but it sounds like Dan's saying with great power comes great responsibility.

Nick Capodice: [00:04:08] The Peter Parker principle is more than apt, Hannah. That's it for today's episode. Remember to submit your questions at our website, civics101podcast.org.


 
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Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

Ask Civics 101: The Peaceful Transition of Power

It has long been a proud claim of American democracy that we are committed to a peaceful transition of power from one president to the next. That, after all is said and done, the results tallied, the legal challenges resolved, a winner is declared and certified. And that the loser will concede and we will move on to the next chapter in our government’s executive branch. Why is this process important? What is at risk when it doesn’t happen? Constitutional scholar Linda Monk once again lends a hand.

 

This transcript may contain errors. Our automated transcription algorithms works with many of the popular audio file formats.

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

Hannah McCarthy:
President Barack Obama gave a speech to his supporters as he neared the end of his presidency.

President Barack Obama:
In 10 days

The world will witness a hallmark of our democracy. [boos] No, no, no, no, no.

Hannah McCarthy:
And to me, the best part about it is that he kind of scolds them, right?

He says, no, no, no, no, no. We don't boo an essential tenet of democracy, the peaceful transfer of power.

Thank your lucky stars that we have it. Protect it.

President Barack Obama:
The idea that for all our outward differences, we're all in this together, that we rise or fall as one.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
This is Civics 101. Today we are talking about one of the many principles that keeps our democratic heads above the authoritarian water, the peaceful transition of power.

Linda Monk:
Well, the procedures are set out in the Constitution. I mean, that's the whole reason you have a constitution, right?

Hannah McCarthy:
This is the inimitable Linda Monk, a.k.a. the Constitution Lady, a.k.a. author of The Bill of Rights, A User's Guide.

Nick Capodice:
When Linda says that the procedure is set out in the Constitution, does it literally say there will be a peaceful transition of presidential power?

Hannah McCarthy:
It does not. But Linda's point is that the Constitution does tell us that we are to hold a free and fair election and the winner of that election will become the president. And the framers put this in writing because they knew and this was before we had political parties, they knew that people would squabble and disagree, and they even feared that foreign nations might get involved trying to influence presidential elections.

Linda Monk:
Gee, what a novel idea. So the Constitution itself sets it up. That's the norm. The norm is that we've got some disagreements. We're going to have elections.

And here's how we keep the government in power.

Nick Capodice:
So this peaceful transition of power is like an unwritten rule. Here's how power will change hands. And as long as you uphold the Constitution, that power shift will be peaceful. But has it truly been peaceful throughout U.S. history?

Linda Monk:
It had been untested, really, until the defeat of John Adams.

Hannah McCarthy:
Incumbent Federalist President John Adams against his Democratic Republican vice president Thomas Jefferson. This is the election of 1800 and Jefferson wins. It was the first time a sitting president lost reelection.

Nick Capodice:
We should note, Adams was only our second president.

Linda Monk:
That was when people look to say, are we going to be able to survive a transfer of power with such diametrically opposed candidates? And then Jefferson in his inaugural speech says, we are all Federalists, we are all Republicans. It was clear what the divisions are there breaking into political parties. And Jefferson tries to bring the nation together, saying essentially, we're all Americans.

Nick Capodice:
Which is what Barack Obama was getting at in that speech.

Isn't it that accepting election results and letting someone else take up the mantle is what helps us to keep a functioning democracy.

Hannah McCarthy:
Even when people are very, very sore losers.

Like when Abraham Lincoln won the presidency in 1860 and seven states seceded.\

Linda Monk:
There was a peaceful transfer of power.

But then the unsuccessful states decided to declare their own nation.

Nick Capodice:
So even on the verge of a civil war and I know there was even a failed assassination plot against Lincoln, but it was accepted that one person lost the other one and the winner would be president.

Hannah McCarthy:
And his opponents did not refuse to acknowledge that he had won. They just made for the hills after he did. No presidential candidate in American history has ever refused to concede to the victor. Until 2020.

Linda Monk:
It's a time of grieving right now. Grieving is necessary because we have forever lost our calling to a peaceful transfer of power through an election. That's forever. Now, maybe that'll make us more humble about what's required to do that and more protective of our electoral process, because all we have to do is look around the world and see where those kind of challenges happen and what the consequences are. May maybe now we've been given a taste of that medicine and instead of bragging about it, will be servants to it.

Hannah McCarthy:
That about does it for the peaceful transition of power. For this episode.

Nick Capodice:
I mean, if any of you have questions about how things are going around here, just ask us drop us a line at Civics101@nhpr.org. We're in this with you.

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Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

Ask Civics 101: The 25th Amendment

NOTE: There is an updated version of this topic published in an episode we published in 2022

Members of Congress from both parties have requested that the Vice President invoke the 25th Amendment to remove President Trump from office. Today we explore all four parts of this relatively new amendment with constitutional scholar and author of The Bill of Rights: A Users Guide, Linda Monk.


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

Here's the truth. The president caused this. The president is unfit and the president is unwell. The president must now relinquish control of the executive branch voluntarily or involuntarily.

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

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
And that was a clip of Republican Congressman Adam Kinzinger from Illinois. On January 7th, 2021, he was calling for the vice president and the cabinet to invoke the 25th Amendment. So today we're going to try to explain the 25th as best as we can, why it was created, what it is and how it works.

Hannah McCarthy:
All right. So let's get to it. What does the 25th Amendment say?

Linda Monk:
The 25th Amendment? And I, I, I'm thinking that unlike in past times, we don't have to have me read all the words, the word like I've insisted sometimes.

Nick Capodice:
This is a dear friend to the show and a constitutional scholar who has in the past insisted things be read to the letter. Linda Monk, author of Bill of Rights A User's Guide.

Linda Monk:
But in general, the 25th Amendment is, well, long, relatively speaking, has four sections, the first of which says something that had been in practice but hadn't been in the Constitution, which is if something happens to the president, the vice president becomes president. Now, like a lot of other things in the 25th Amendment, there had already been precedents before the amendment comes in place, which is really kind of late.

Hannah McCarthy:
Late, like how late?

Nick Capodice:
The amendment wasn't ratified until 1967. The reason it was written in the first place was the Kennedy assassination in 1963. Lyndon Johnson became president after the death of JFK, but he himself had suffered a heart attack and the next people in the order of succession were quite elderly. So they wanted to lay out how to fill the office of the vice president during an administration.

Hannah McCarthy:
Ok, the first part Linda told us about that the vice president becomes president if the president dies, resigns or is removed from office, what are the other three parts?

Nick Capodice:
All right. The second part says that if there is a vacancy in the vice president's office, the president appoints a new one with majority approval of both chambers of Congress. The third part says the veep can become president if the president themself submits a written statement that they're not going to be able to perform their job.

Hannah McCarthy:
Has this part ever been formally invoked?

Nick Capodice:
Yeah, sure. A handful of times. George H.W. Bush underwent surgery and he signed the request to make Dan Quayle president for a short time. And then his son, George W. Bush, did the same thing. He invoked the 25th twice for medical procedures, making Dick Cheney temporary president.

"Because the president will be under the effects of anesthesia, he once again is elected to implement Section three of the 25th Amendment to the United States Constitution. Once enacted, the vice president will serve as acting..."

Nick Capodice:
But then we get to the very long, very tricky fourth part of the amendment,

Hannah McCarthy:
And this is the part about someone else declaring the president unfit to perform their office, right?

Nick Capodice:
Yeah.

Linda Monk:
If the president can't perform his or her job, who does it? And is that provided for in the Constitution? The 25th Amendment puts the constitutional language in. That said, it has not been invoked in terms of presidential disability. I want to focus on that part of it, because that's what we're talking about now. And we talk about disability as though it's physical disability. But I think what the current controversy about President Trump is raising is whether or not the president is capable of carrying out...now, maybe that's not a physical disability. Maybe that's other kinds of capabilities. And as we know now, The Washington Post has issued an editorial calling for the 25th Amendment to be invoked. Both Republican and Democratic members of Congress have. And I'll just cut to the chase in terms of what I think is likely to happen there. 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 has to be a two thirds vote. That's a pretty big vote.

Hannah McCarthy:
So the vice president and a majority of the cabinet have to initiate it. And if the president disagrees and says, hey, no, I'm totally capable of being president, it then goes to Congress for that two thirds vote.

Nick Capodice:
Two thirds in both chambers.

Hannah McCarthy:
What about all those cabinet members who are talking about resigning in the wake of the attempted insurrection on January 6th who cast their vote?

Nick Capodice:
Ok, I don't want this to sound like a cop out. This is truly a murky constitutional area because the fourth section of the 25th Amendment has never been invoked before. The phrase in the amendment is, "a majority of the principal officers of the executive departments." So that is the cabinet. But they didn't specify who those principal officers are. A nineteen eighty five memo from the Justice Department interpreted it to mean the core cabinet secretaries, and one scholar I reached out to said this is all based on old Department of Justice memos in the 1960s. So we are flying in some heavy fog.

Linda Monk:
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. 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. And at a time like this, when there's so much strife and so much division, that's never more called for.

Nick Capodice:
That's the 25th Amendment, if you have any other questions about how our democracy works, just drop us a line at Civics101podcast.org.

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Transcript

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

[00:00:05] Here's the truth. The president caused this. The president is unfit and the president is unwell. The president must now relinquish control of the executive branch voluntarily or involuntarily.

Nick Capodice: [00:00:17] You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:00:19] I'm Hannah McCarthy.

Nick Capodice: [00:00:20] And that was a clip of Republican Congressman Adam Kinzinger from Illinois. On January 7th, 2021, he was calling for the vice president and the cabinet to invoke the 25th Amendment. So today we're going to try to explain the 25th as best as we can, why it was created, what it is and how it works.

Hannah McCarthy: [00:00:39] All right. So let's get to it. What does the 25th Amendment say?

Linda Monk: [00:00:43] The 25th Amendment? And I, I, I'm thinking that unlike in past times, we don't have to have me read all the words, the word like I've insisted sometimes.

Nick Capodice: [00:00:54] This is a dear friend to the show and a constitutional scholar who has in the past insisted things be read to the letter. Linda Monk, author of Bill of Rights A User's Guide.

Linda Monk: [00:01:03] But in general, the 25th Amendment is, well, long, relatively speaking, has four sections, the first of which says something that had been in practice but hadn't been in the Constitution, which is if something happens to the president, the vice president becomes president. Now, like a lot of other things in the 25th Amendment, there had already been precedents before the amendment comes in place, which is really kind of late.

Hannah McCarthy: [00:01:31] Late, like how late?

Nick Capodice: [00:01:33] The amendment wasn't ratified until 1967. The reason it was written in the first place was the Kennedy assassination in 1963. Lyndon Johnson became president after the death of JFK, but he himself had suffered a heart attack and the next people in the order of succession were quite elderly. So they wanted to lay out how to fill the office of the vice president during an administration.

Hannah McCarthy: [00:01:57] Ok, the first part Linda told us about that the vice [00:02:00] president becomes president if the president dies, resigns or is removed from office, what are the other three parts?

Nick Capodice: [00:02:08] All right. The second part says that if there is a vacancy in the vice president's office, the president appoints a new one with majority approval of both chambers of Congress. The third part says the veep can become president if the president themself submits a written statement that they're not going to be able to perform their job.

Hannah McCarthy: [00:02:26] Has this part ever been formally invoked?

Nick Capodice: [00:02:28] Yeah, sure. A handful of times. George H.W. Bush underwent surgery and he signed the request to make Dan Quayle president for a short time. And then his son, George W. Bush, did the same thing. He invoked the 25th twice for medical procedures, making Dick Cheney temporary president.

[00:02:44] "Because the president will be under the effects of anesthesia, he once again is elected to implement Section three of the 25th Amendment to the United States Constitution. Once enacted, the vice president will serve as acting..."

Nick Capodice: [00:02:57] But then we get to the very long, very tricky fourth part of the amendment,

Hannah McCarthy: [00:03:04] And this is the part about someone else declaring the president unfit to perform their office, right?

Nick Capodice: [00:03:10] Yeah.

Linda Monk: [00:03:10] If the president can't perform his or her job, who does it? And is that provided for in the Constitution? The 25th Amendment puts the constitutional language in. That said, it has not been invoked in terms of presidential disability. I want to focus on that part of it, because that's what we're talking about now. And we talk about disability as though it's physical disability. But I think what the current controversy about President Trump is raising is whether or not the president is capable of carrying out...now, maybe that's not a physical disability. Maybe that's other kinds of capabilities. And as we know now, The Washington Post has issued an editorial calling [00:04:00] for the 25th Amendment to be invoked. Both Republican and Democratic members of Congress have. And I'll just cut to the chase in terms of what I think is likely to happen there. 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 has to be a two thirds vote. That's a pretty big vote.

Hannah McCarthy: [00:04:39] So the vice president and a majority of the cabinet have to initiate it. And if the president disagrees and says, hey, no, I'm totally capable of being president, it then goes to Congress for that two thirds vote.

Nick Capodice: [00:04:53] Two thirds in both chambers.

Hannah McCarthy: [00:04:55] What about all those cabinet members who are talking about resigning in the wake of the attempted insurrection on January 6th who cast their vote?

Nick Capodice: [00:05:03] Ok, I don't want this to sound like a cop out. This is truly a murky constitutional area because the fourth section of the 25th Amendment has never been invoked before. The phrase in the amendment is, "a majority of the principal officers of the executive departments." So that is the cabinet. But they didn't specify who those principal officers are. A nineteen eighty five memo from the Justice Department interpreted it to mean the core cabinet secretaries, and one scholar I reached out to said this is all based on old Department of Justice memos in the 1960s. So we are flying in some heavy fog.

Linda Monk: [00:05:41] 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. Oftentimes in our constitutional interpretation, it's what the political actors choose to do and [00:06:00] that that is part of the Constitution. It's not just supposed to be automatic words on paper. It's people exercising their judgment. And at a time like this, when there's so much strife and so much division, that's never more called for.

Nick Capodice: [00:06:18] That's the 25th Amendment, if you have any other questions about how our democracy works, just drop us a line at Civics101podcast.org.


 
CPB_standard_logo.png
 

Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

Ask Civics 101: Why Does the Vote Certification Take So Long?

Even in an election year when it took weeks to count and recount votes, there’s a significant gap when it comes to finally certifying that vote in Congress. Who decides the calendar of events - the first Tuesday after the first Monday, the first Monday after the second Wednesday - January 6th and January 20th? Why does the whole process take so long?

 

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

Archival:
The ayes have it in this meeting at the 20 20 Electoral College is adjourned.

Hannah McCarthy:
Listener Justin wrote in to ask on behalf of friend Christina, why does it take so long to count and officially certify the electoral votes? Specifically, what is with all of the downtime between the date when the electors meet to vote and the date that those votes are counted by Congress? Is it a holdover from the days of slow travel and horse drawn carriage? Is it about our molasses bureaucracy? Your friend Justin came to the right place, Christina, because this is Civics 101 podcast about the basics of how our democracy works. I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
We've actually danced around this question in a few ways from our episode on the lame duck period to the process of counting your ballot to how the Electoral College votes. But the why of it all is a great question.

Nick Capodice:
We've got the election on the Tuesday after the first Monday in November, and then the Electoral College meets this year on December 14th.

Hannah McCarthy:
Officially, it is the first Monday after the second Wednesday in December. And then Congress counts those votes on January 6th.

Nick Capodice:
And then the inauguration is another two weeks after that. It is a good long while from A to Z. So where do all these dates come from?

Hannah McCarthy:
Many of these dates were determined by Congress initially because the Constitution allows states to determine the, quote, time, place and manner of their elections. States held presidential elections on different days.

So first in 1845, Congress passes the presidential Election Day Act, which sets that Tuesday after the first Monday in November thing.

Nick Capodice:
Do you know why they chose a Tuesday in November?

Hannah McCarthy:
I don't.

Nick Capodice:
Well, so much of the voting population at the time were farmers. So spring, summer and early fall were out because those are planting and harvesting seasons. Winter was out because travel would have been too difficult. Weekends weren't good because of church. Wednesday through Friday were market days and November 1st had to be ruled out somehow because that's All Saints Day. Thus the Tuesday after the first Monday in November.

Hannah McCarthy:
And it stuck.

And then we see the date of the Electoral College vote show up in the Electoral Count Act of 1887. Congress wanted to minimize its role in election disputes, so they came up with several deadlines, giving states plenty of time to work out vote kinks. It also establishes that those electoral votes have to reach Congress by the fourth Wednesday in November.

Nick Capodice:
So why this long delay between the electoral vote day and the vote count in Congress?

Hannah McCarthy:
Well, the Constitution says that a new session of Congress starts on January 3rd, and it's the newly seated Congress that counts and certifies the final vote. So that's probably part of it. But it also is a partial holdover from the days before paved roads, telephones and Internet, tabulating the vote, gathering the electors all in one place, letting the president elect know they were elected, and then giving them time to assemble a cabinet. All of that took a lot of time when you couldn't just send an email. And we still need to allow time for a lot of it, especially in an election year like the one we just had.

Nick Capodice:
And also time for all those certificates of vote to be prepared and reach the Congress. This is a lot of bureaucratic red tape.

Hannah McCarthy:
And for the record, all of this used to take a lot longer. Congress initially set the president's inauguration and the beginning of a new congressional term to March 4th. And in fact, the weather was so bad following the first presidential election that George Washington wasn't sworn in until April.

Nick Capodice:
Have there been any attempts to make the whole timeline a little snappier?A little shorter?

Hannah McCarthy:
Actually. This year, Senator Marco Rubio made a play to extend the Electoral College timeline by giving states an even later deadline. And given how long it took to count and recount the 2020 election results, we're not likely to say goodbye to a long time line anytime soon.

Nick Capodice:
Well, that does it for this Civics 101. If you have a question about how and why the United States does it, the way we do it, even if you're asking for a friend, submit your question by clicking on the button at the top of out homepage, Civics101podcast.org.

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Ask Civics 101: What Role Does Congress Play in the Electoral College?

The Constitution requires Congress to meet and count electoral votes on January 6th. It’s the final step in a presidential election process that begins in early November when citizens cast ballots, continues as election officials count (and in some cases, recount) ballots through November, and progresses in December when the Electoral College meets to cast their votes. What happens on January 6th? Can the election results from November change?

 

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

Jacqui Fulton:
Election Day was ages ago. The Electoral College spoke. Each state certified their count with certificates of ascertainment. Finally,inauguration Day!

President Bush:
I, George Walker Bush, do solemnly swear that I will faithfully.

Jacqui Fulton:
Not so fast. I'm Jackie Fulton. Today on Civics 101, we're talking about the final, final, final step in our presidential election process, the certification of Electoral College votes by Congress.

Pelosi:
The House will be in order. Let me please clear the middle aisle.

Jacqui Fulton:
Normally certifying the Electoral College votes, just mundane housekeeping, Congress completing paperwork, boring. But every so often it's used as a chance for a last minute political theater like in 2016.

Representative:
I wish to ask, is there one United States senator who will join me in this letter?

biden:
There's no debate.

Jacqui Fulton:
Let's set the scene for this blockbuster event.

In a world where papers need to be pushed, will the United States Congress push those papers? The Senate packs up their lunch bills and takes a field trip to the House for a joint session of Congress.

CSPAN:
Vice President Cheney as president of the Senate, will chair this,

Jacqui Fulton:
Starring a vice president.

Cheney:
Pursuant to the Constitution and laws of the United States.

Jacqui Fulton:
Who silently reads poster sized certificates from 50 states and the District of Columbia, then hands the certificates over to a teller who tells everyone what they say.

Teller:
Mr. President, the certificate of the electoral vote of the state of Alabama seems to be regular in form an authentic and it appears therefrom that John McCain of the state of Arizona received nine votes for president and Sarah Palin of the state of Alaska received nine votes for vice president.

Jacqui Fulton:
But wait, someone has an objection.

Representative:
Mr. President, I object to the certificate from the state of Alabama on the grounds that the electoral votes were not under all of the known circumstances regularly given and that the electors were not lawfully certified.

Jacqui Fulton:
The objection has to be in writing.

biden:
Is the objection in writing.

Jacqui Fulton:
Signed by a member of the House and a member of the Senate,

biden:
Both member of the House of Representatives and a senator,

Jacqui Fulton:
If it is the House and Senate, retired to the respective chambers and for up to two Nail-biting hours discuss the objection.

Representative:
Given the confirmed and illegal activities engaged by the government of Russia designed to interfere with our election and the widespread violations of the Voting Rights Act.

Jacqui Fulton:
Then they vote.

Movie:
Who is with me? Let's go!

Jacqui Fulton:
It's all but certain to fail. This process has never succeeded in changing the outcome of its electoral college like ever.

biden:
Is it signed by Senator Obama,

Representative:
Signed by a member of the House, but not yet by a member of the Senate?

Cheney:
It is over.

Jacqui Fulton:
You'll be on the edge of your seat as the winner is declared.

Teller:
Barack Obama. The state of Illinois received 15 votes for president again, who received nine votes for president and again, four votes for president.

Jacqui Fulton:
Critics are raving.

biden:
The whole number of the electors appointed to vote for president of the United States is 538, of which a majority is 270.

Jacqui Fulton:
Will the United States Congress push those papers? Find out on January 6th every four years.

biden:
This announcement of the state of the vote by the president, the Senate shall be deemed a sufficient declaration and shall be entered together with a list of votes in the Journal of the Senate and the House of Representatives.

Movie:
Coming soon to theaters.

Jacqui Fulton:
If you've got questions, we've got answers. Just submit them at our website, civics101podcast.org.

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Ask Civics 101: How Does a Contested Convention Work?

Nominating conventions are about party morale, celebrating, and formally anointing the chosen candidate. There hasn’t been a contested convention — a convention when there is no clear winner on the ballot — since 1952. What happens when states have to vote more than once?

NHPR Fellow Tat Bellamy-Walker guest hosts for this episode on contested conventions with Shannon Bow O’Brien.

 

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

Tat Bellamy-Walker:
For an ever so brief moment here at Civics 101, we had the pleasure and privilege of working with Tat Bellamy-Walker, our fellow here at the station. Now Tat, of course, went and got himself a full time job there. Gain is our great loss. But he did make an episode of Civics 101 before he left us. Without further ado, here's Tat Bellamy-Walker with contested conventions.

Gerald Ford:
Mr. Chairman, delegates and alternates to this Republican convention. I am honored by your nomination and I accept it.

Tat Bellamy-Walker:
This is Gerald Ford.

He was the Republican nominee for president in 1976.

Republicans have had some tough competition. Let me say this from the bottom of my heart. After the scrimmages of the past few months, it really feels good to have Ronald Reagan on the same side of the line.

Tat Bellamy-Walker:
He's giving a speech to a room of delegates during the 1976 Republican National Convention. The convention helps the party select a nominee for president. Ford just won the nomination after an intense battle with candidate Ronald Reagan. This all helped Ford move forward as the party's choice.

I'm Tat Bellamy-Walker, a fellow here at Civics 101. Today, we're answering this listener's question: would a contested convention be similar to a caucus? And by caucus, the listener means the process of a party coming together and discussing why they like their candidate.

But before we do that, let's start with what conventions are.

Shannon Bow O'Brien:
Conventions are to formally select the presidential candidate.

Tat Bellamy-Walker:
That's Shannon Bow O'Brien, a political science professor at the University of Texas at Austin. O'Brien describes this as a big cheerleading party. She says this is where delegates cast their votes with hopes of moving the candidate to the general election.

Shannon Bow O'Brien:
So it's this giant rally to get everybody excited about the candidate and the candidate gets to speak and put forward their agenda.

And often the party platform is often created or finalized at the convention to where the candidate will say, you know, if you elect me, this is the list of stuff we're going to do. That's often managed, too.

Tat Bellamy-Walker:
But then we have contested conventions. A contested convention happens when no candidate gets the majority of delegate votes during the state primaries. The one in 1976 was closed for the Republicans, but Ford pulled out enough delegates to not force a contested convention. And these days, because of the primary and caucus process, contested conventions are rare. We usually know who the candidate is before the convention even starts.

Shannon Bow O'Brien:
We haven't had one really in my lifetime.

Shannon Bow O'Brien:
The last time this happened was during the 1952 Democratic Convention in Chicago, when a reluctant Adlai Stevenson, then governor of Illinois, won the nomination with outgoing President Truman support. This was in effect like a caucus. Candidates wheeled and dealed and made concessions, and one by one they dropped out. It took three rounds of voting to beat out his opponents. And in this round, Stevenson received 617 votes. Stevenson's win appears to be a result of a deep racial divide. Truman believed nominating a candidate from a state with Jim Crow laws in force would turn black and northern white voters away from voting for the Democratic Party. Contested conventions might seem bad, but Shannon says that's a misconception.

Shannon Bow O'Brien:
A lot of times I think people think with a contested convention that they're kind of in disarray or they're crazy. A lot of it just means the states are really divided and the states have no one candidate could get a good job of selling themselves across the state.

Tat Bellamy-Walker:
So that's how a contested convention works. Do you have a question about our election process or anything else civics related, you could submit your question at Civics101podcast.org. That's Civics101podcast.org.

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Ask Civics 101: Holidays at the White House

Who had the first Christmas tree in the White House? Who had the first menorah? And when did we start the tradition of FLOTUS choosing a Christmas theme? All that and more in this short episode about celebrating the season at 1600 Pennsylvania Avenue.

Click here to see photos of all the First Lady’s themes since 1961!


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Civics 101 is supported in part by the Corporation for Public Broadcasting,

Nick Capodice:
Hannah Holy Cats. It's been a crazy year. Today, I just want to take a little break.

Hannah McCarthy:
Take a holiday, you know.

Nick Capodice:
And that's what we're going to do today. You're listening to Civics 101. I'm jolly old, not St Nick Capodice.

Hannah McCarthy:
And I'm just regular old Hannah McCarthy.

Nick Capodice:
And today we're going to talk about the history of Christmas and Hanukkah at the White House. Can I can I put Sleigh Ride in here? Is sleigh ride in the Creative Commons? Are we going to get sued? The sounds a little like Sleigh Ride.

Hannah McCarthy:
Ok, let's kick it off with the Hanukkah. How long have we celebrated the eight days of light in the White House?

Nick Capodice:
Both recently and not so recently. Do you want to guess the first president with a Hanukkah story?

Hannah McCarthy:
I think I know this one.

Nick Capodice:
Who is it?

Hannah McCarthy:
I think it's Jimmy Carter.

Hannah McCarthy:
Is it?

Nick Capodice:
Well, kind of. It's George Washington.

Hannah McCarthy:
No way.

Nick Capodice:
In Valley Forge.

Nick Capodice:
It's a second hand account, but it is a credible one. There was a soldier who is sitting apart from the others. He was huddled over two small candles, and when Washington asked him about it, and he told him all about the holiday. And from that account, the general was, quote, warmed by the inspiration of those little flames and the knowledge that miracles are possible.

Hannah McCarthy:
That's really lovely.

Nick Capodice:
And then, yes, Jimmy Carter, we have, then we have 200 years of just Christmas at the White House. Jimmy Carter 1979 was the first president to acknowledge the holiday, giving remarks and lighting the menorah at Lafayette Park. Since then, every president has participated in a menorah lighting ceremony. But Bill Clinton was the first president to have one in the White House itself in 1993 where this happened.

Hannah McCarthy:
Oh, what is that?

Nick Capodice:
That is a young girl's hair catching on fire on the menorah. And the president snuffed it out with his bare hands.

Nick Capodice:
And I know we're focusing on Hanukkah and Christmas, but I just have to touch on one other significant Jewish holiday. Barack Obama is the first and so far only sitting president to host a Passover Seder in the White House.

Hannah McCarthy:
All right. Let's move on to Christmas. We said on many a trivia night that Franklin Pierce was the first president to have a Christmas tree.

Nick Capodice:
So wrong.

Hannah McCarthy:
Really,

Nick Capodice:
It's wrong. We were wrong. Hosting trivia was wrong. I read that, too. But it is disputed. By the way, the Wikipedia page on White House Christmas trees is hilariously edited. It says that Pierce might have had the first Christmas tree, but it can't be certified. And then it says you shouldn't be using Wikipedia as a source. But we do know that Benjamin Harrison had the first indoor tree in the late 1880s. So we'll go with that. And after that, some presidents had one, some presidents didn't. William McKinley was urged by a newspaper editorials to not get one because it was un-American. Trees inside the house are a German tradition. It was unpatriotic.

Hannah McCarthy:
That's right, O Tannenbaum. Let's get to the modern day tradition, which I believe was that by Jackie Kennedy, where the first lady is in charge of choosing a theme for the White House Christmas tree.

Nick Capodice:
Sure. So while Mamie Eisenhower was the first to traditionally put the tree in the Blue Room, as you said, Jackie Kennedy started the theme tradition. She chose a Nutcracker theme for that first one in 1961. And every first lady thereafter has chosen a theme. There are so many they're, so wonderful, we're going to put a link to all the themes on our website. Quick standouts are Lady Bird Johnson's Gingerbread Tree in 1968, Michelle Obama's Military Badges and Medals Tree in 2011. And my personal favorite, lest we forget, Pat Nixon 1973 with the theme of James Monroe. And as to the tree itself, there is a national competition held every year by the National Christmas Tree Association, the champion of which gets to put it in the Blue Room.

Hannah McCarthy:
Last thing. What about Christmas parties?

Nick Capodice:
John Adams had the first White House Christmas party in 1800 and they've just continued to happen ever since and were just about to jump into a new administration. So who knows what the next Christmas tree theme is going to be? Who knows how holidays are going to change at the White House. But after doing this research for this, I am just full of holiday anticipation. Happy holidays.

Hannah McCarthy:
Happy holidays.

Nick Capodice:
And if you have a question that's not about Christmas trees, you can submit it to our Web site, Civics101podcast.org.

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Transcript

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

Nick Capodice: [00:00:03] Hannah Holy Cats. It's been a crazy year. Today, I just want to take a little break.

Hannah McCarthy: [00:00:11] Take a holiday, you know.

Nick Capodice: [00:00:12] And that's what we're going to do today. You're listening to Civics 101. I'm jolly old, not St Nick Capodice.

Hannah McCarthy: [00:00:18] And I'm just regular old Hannah McCarthy.

Nick Capodice: [00:00:21] And today we're going to talk about the history of Christmas and Hanukkah at the White House. Can I can I put Sleigh Ride in here? Is sleigh ride in the Creative Commons? Are we going to get sued? The sounds a little like Sleigh Ride.

Hannah McCarthy: [00:00:31] Ok, let's kick it off with the Hanukkah. How long have we celebrated the eight days of light in the White House?

Nick Capodice: [00:00:38] Both recently and not so recently. Do you want to guess the first president with a Hanukkah story?

Hannah McCarthy: [00:00:44] I think I know this one.

Nick Capodice: [00:00:45] Who is it?

Hannah McCarthy: [00:00:45] I think it's Jimmy Carter.

Hannah McCarthy: [00:00:49] Is it?

Nick Capodice: [00:00:50] Well, kind of. It's George Washington.

Hannah McCarthy: [00:00:52] No way.

Nick Capodice: [00:00:53] In Valley Forge.

Nick Capodice: [00:00:55] It's a second hand account, but it is a credible one. There was a soldier who is sitting apart from the others. He was huddled over two small candles, and when Washington asked him about it, and he told him all about the holiday. And from that account, the general was, quote, warmed by the inspiration of those little flames and the knowledge that miracles are possible.

Hannah McCarthy: [00:01:14] That's really lovely.

Nick Capodice: [00:01:16] And then, yes, Jimmy Carter, we have, then we have 200 years of just Christmas at the White House. Jimmy Carter 1979 was the first president to acknowledge the holiday, giving remarks and lighting the menorah at Lafayette Park. Since then, every president has participated in a menorah lighting ceremony. But Bill Clinton was the first president to have one in the White House itself in 1993 where this happened.

Hannah McCarthy: [00:01:40] Oh, what is that?

Nick Capodice: [00:01:43] That is a young girl's hair catching on fire on the menorah. And the president snuffed it out with his bare hands.

Nick Capodice: [00:01:52] And I know we're focusing on Hanukkah and Christmas, but I just have to touch on one other significant Jewish holiday. Barack Obama is the first and so far only sitting president to host a Passover Seder in the White House.

Hannah McCarthy: [00:02:04] All right. Let's move on to Christmas. We said on many a trivia night that Franklin Pierce was the first president to have a Christmas tree.

Nick Capodice: [00:02:13] So wrong.

Hannah McCarthy: [00:02:14] Really,

Nick Capodice: [00:02:15] It's wrong. We were wrong. Hosting trivia was wrong. I read that, too. But it is disputed. By the way, the Wikipedia page on White House Christmas trees is hilariously edited. It says that Pierce might have had the first Christmas tree, but it can't be certified. And then it says you shouldn't be using Wikipedia as a source. But we do know that Benjamin Harrison had the first indoor tree in the late 1880s. So we'll go with that. And after that, some presidents had one, some presidents didn't. William McKinley was urged by a newspaper editorials to not get one because it was un-American. Trees inside the house are a German tradition. It was unpatriotic.

Hannah McCarthy: [00:02:53] That's right, O Tannenbaum. Let's get to the modern day tradition, which I believe was that by Jackie Kennedy, where the first lady is in charge of choosing a theme for the White House Christmas tree.

Nick Capodice: [00:03:04] Sure. So while Mamie Eisenhower was the first to traditionally put the tree in the Blue Room, as you said, Jackie Kennedy started the theme tradition. She chose a Nutcracker theme for that first one in 1961. And every first lady thereafter has chosen a theme. There are so many they're, so wonderful, we're going to put a link to all the themes on our website. Quick standouts are Lady Bird Johnson's Gingerbread Tree in 1968, Michelle Obama's Military Badges and Medals Tree in 2011. And my personal favorite, lest we forget, Pat Nixon 1973 with the theme of James Monroe. And as to the tree itself, there is a national competition held every year by the National Christmas Tree Association, the champion of which gets to put it in the Blue Room.

Hannah McCarthy: [00:03:52] Last thing. What about Christmas parties?

Nick Capodice: [00:03:55] John Adams had the first White House Christmas party in 1800 and they've just continued to happen ever since and were just about to jump into a new administration. So who knows what the next Christmas tree theme is going to be? Who knows how holidays are going to change at the White House. But after doing this research for this, I am just full of holiday anticipation. Happy holidays.

Hannah McCarthy: [00:04:15] Happy holidays.

Nick Capodice: [00:04:16] And if you have a question that's not about Christmas trees, you can submit it to our Web site, Civics101podcast.org.


 
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Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

Ask Civics 101: What Is Voter Fraud?

Claims of voter fraud are widespread but is voter fraud itself? What is voter fraud, how often does it happen, and what do claims of voter fraud reveal about voter perception? Professor Justin Levitt talks us through this murky subject.

 

VoterFraud_PRX.mp3 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best audio automated transcription service in 2020. Our automated transcription algorithms works with many of the popular audio file formats.

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

Hannah McCarthy:
We heard it a lot this year, voter fraud, widespread, rampant election, ruining voter fraud. Yet at the same time, election officials say they can't find the evidence of significant fraud. So what is the truth about voter fraud? This is civics 101. I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And today we're finding out what fraud actually is, how often it happens and what voter fraud allegations tell us about elections.

Justin Levitt:
Voter fraud does usually happen.

Hannah McCarthy:
This is Justin Levitt, law professor at Loyola Law School in Los Angeles. He says, yes, there are various types of voter fraud and they do happen very rarely.

Justin Levitt:
The important thing to know is that real voter fraud is based on breaking the law in some way.

Nick Capodice:
So this would be like trying to vote more than once.

Hannah McCarthy:
Yes. And impersonating an eligible voter, voting in more than one state or attempting to.

Laws vary from state to state, but in many it is a felony to, for example, vote more than once. Sometimes this is nefarious or sometimes it's a relative voting for their deceased loved one to carry out their last wishes. Either way, though, it is illegal but very, very rare.

Justin Levitt:
The way to distinguish these real incidents from hot takes that turn out to be fiction is to find real facts that show real wrongdoing against real law. And unfortunately, all too often what we hear are claims of voter fraud that are based in I don't like people who don't think like I do voting.

Nick Capodice:
In other words, unsubstantiated voter fraud claims could just be frustration that someone else's candidate won.

Hannah McCarthy:
Or confusion.

Justin Levitt:
That seems fishy to me, but I don't really understand how the rules of the elections work. And it's real easy to jump really quickly in a conspiratorial mindset from this. Seems strange, but I don't understand too. That must be fraud.

Hannah McCarthy:
Justin gave this example of someone suspecting that it's voter fraud for someone to vote in a state in which they do not live, when actually that's just a misunderstanding of legal absentee voting.

Justin Levitt:
Mike Pence votes in Indiana but doesn't live there. Many, many, many, many, many members of the military live in a place that is not their voting residence and vote in a place where they are not currently living. That's not fraud.

Hannah McCarthy:
So actual fraud, while it exists, is exceedingly rare. Still, legislators pass laws like voter ID laws that tighten election security in order to prevent widespread fraud from happening. But those laws are really controversial.

Justin Levitt:
Every state has some means to make sure that you are who you say you are when you go to. But the question isn't, should we have a way to prove that you are who you say you are? The question is, what kind of things should we permit in order to make sure that the election system is reasonably secure, while also making sure that we are not unreasonably locking out eligible voters?

Hannah McCarthy:
Justin says it's important to recognize that insistences of voter fraud with no evidence of voter fraud gives you insight into how voters are feeling. It has to do with intense emotion rather than clear fact.

Justin Levitt:
They're expressions of frustration. They're expressions of anguish. They are communications about disengagement with the system that we have there often not really about whether the law was broken in a particular way in a particular jurisdiction. But if we can recognize that a large part of that conversation is expressing some other deeper disengagement that may help point the way toward embracing all of the voters who participate in the process.

Hannah McCarthy:
We have far from solved the problem of voter fraud, real or imagined.

But here's to hoping we've shed a little light on a murky idea. If you have any questions about the way things are working or not in this country, we will try to find the answers, even if they are dissatisfying. Just click the button at the top of our home page at Civics101podcast.org.

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Ask Civics 101: How Is a Seat Filled When a Member of Congress Takes Another Job?

This January, Senator Kamala Harris will resign her seat to become vice president. How will that seat be filled? How does the process differ among states, and also between both chambers of Congress?

Our guest today is Matthew Tokeshi, Assistant Professor of political science at Williams College.


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

And I'm curious if anybody has already started to pitch themselves as a replacement to You.

Well, you may be the only one that hasn't unless you just did.

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

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
And today we're answering this question. Our listener Judy wrote, How is a U.S. senator seat filled after they're elected president or vice president?

Matt Tokeshi:
I don't know if this listener question was inspired by Kamala Harris, but Kamala Harris is a perfect example. Right?

Nick Capodice:
This is Matt Tokeshi. He's professor of political science at Williams College.

Matt Tokeshi:
Ok, so for Senate vacancies, each state has different rules. So the 17th Amendment of the Constitution empowers state legislatures to grant the governor the power to name a temporary replacement. So in 45 of the U.S. states, the legislature has granted that the governor that appointment power. And in five states, the legislature does not grant the governor a temporary appointment power.

Nick Capodice:
And I have to add that it's not terribly common. So far in U.S. history, 15 senators, including Kamala Harris, have resigned to become vice president. But only three U.S. senators, Barack Obama, Warren G Harding and John F. Kennedy were elected president while they were holding that Senate seat.

Hannah McCarthy:
Matt said that 45 states have the governor pick a replacement. But what about the other five states?

Nick Capodice:
So North Dakota, Oklahoma, Oregon, Rhode Island and Wisconsin don't allow gubernatorial selected Senate replacements. In those states, Senators have to be elected by the people in a special election.

Matt Tokeshi:
So Harris is a U.S. senator from California. And California is one of the 45 states that empowers its governor to appoint, in this case, Senator Harris's replacement.

Hannah McCarthy:
When Matt says these are a temporary replacement, how long does that last?

Nick Capodice:
It lasts until a special election is held. As to when that happens, it varies greatly from state to state. Most states hold it at the next statewide election, 13 states require a special election to be held in a certain time frame after that governor's appointment.

Hannah McCarthy:
Ok, that's the Senate.

Matt Tokeshi:
OK, so let me talk about the House. Article one of the Constitution says that House vacancies are filled by special elections. So unlike the Senate, there are no temporary appointment powers granted to anyone. There is a special election that's held, you know, soon after that vacancy.

Hannah McCarthy:
I'm curious about other positions besides the president and the vice president. Is the process the same if a senator or representative resigns to become a cabinet member?

Matt Tokeshi:
The rules for replacing senators and representatives joining the cabinet are the same for, you know, whether they leave to become the president or vice president or if they die or become sick or retire. This is to fill vacancies for any reason. The rules are all the same. So, for example, President elect Biden has named one U.S. in this case representative, to be a part of his cabinet so far. And that's Ohio Representative Marcia Fudge, who is going to be nominated to be the secretary of Housing and Urban Development. Ohio Democrats are already lining up to fill that Marcia Fudge seat.

Hannah McCarthy:
So when a president picks members of their cabinet, I imagine they have to consider not only the right person for the job, but also that they'll be removing that person from their current position of power.

Matt Tokeshi:
That is definitely a consideration. And that's exactly what we're seeing with what President elect Biden. There's lots of factors that go into it. So President elect Biden so far has mostly selected more, I guess, technocratic type people rather than ambitious politicians who are seeking further office. So he's opted more for people that he's personally familiar with and who are, I guess, less politically ambitious, which means he hasn't named anyone from the Senate. But if you name a senator, you don't know for sure who the replacement is going to be and where. You have a very close fight for party control in the Senate, every single one of those seats is precious. You want to be very, very careful. And in fact, the the most careful way to approach this is just to not name somebody currently in the in the Senate.

That's how we fill vacated seats in Congress here today on Civics 101. Don't forget to submit your questions at our website, civics101podcast.org.

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Transcript

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

[00:00:03] And I'm curious if anybody has already started to pitch themselves as a replacement to You.

[00:00:08] Well, you may be the only one that hasn't unless you just did.

Nick Capodice: [00:00:13] You're listening to Civics 101 I'm Nick Capodice.

Hannah McCarthy: [00:00:15] I'm Hannah McCarthy.

Nick Capodice: [00:00:16] And today we're answering this question. Our listener Judy wrote, How is a U.S. senator seat filled after they're elected president or vice president?

Matt Tokeshi: [00:00:25] I don't know if this listener question was inspired by Kamala Harris, but Kamala Harris is a perfect example. Right?

Nick Capodice: [00:00:31] This is Matt Tokeshi. He's professor of political science at Williams College.

Matt Tokeshi: [00:00:35] Ok, so for Senate vacancies, each state has different rules. So the 17th Amendment of the Constitution empowers state legislatures to grant the governor the power to name a temporary replacement. So in 45 of the U.S. states, the legislature has granted that the governor that appointment power. And in five states, the legislature does not grant the governor a temporary appointment power.

Nick Capodice: [00:01:00] And I have to add that it's not terribly common. So far in U.S. history, 15 senators, including Kamala Harris, have resigned to become vice president. But only three U.S. senators, Barack Obama, Warren G Harding and John F. Kennedy were elected president while they were holding that Senate seat.

Hannah McCarthy: [00:01:18] Matt said that 45 states have the governor pick a replacement. But what about the other five states?

Nick Capodice: [00:01:24] So North Dakota, Oklahoma, Oregon, Rhode Island and Wisconsin don't allow gubernatorial selected Senate replacements. In those states, Senators have to be elected by the people in a special election.

Matt Tokeshi: [00:01:34] So Harris is a U.S. senator from California. And California is one of the 45 states that empowers its governor to appoint, in this case, Senator Harris's replacement.

Hannah McCarthy: [00:01:45] When Matt says these are a temporary replacement, how long does that last?

Nick Capodice: [00:01:50] It lasts until a special election is held. As to when that happens, it varies greatly from state to state. Most states hold it at the next statewide election, 13 states require a special election to be held in a certain time frame after that governor's appointment.

Hannah McCarthy: [00:02:06] Ok, that's the Senate.

Matt Tokeshi: [00:02:07] OK, so let me talk about the House. Article one of the Constitution says that House vacancies are filled by special elections. So unlike the Senate, there are no temporary appointment powers granted to anyone. There is a special election that's held, you know, soon after that vacancy.

Hannah McCarthy: [00:02:25] I'm curious about other positions besides the president and the vice president. Is the process the same if a senator or representative resigns to become a cabinet member?

Matt Tokeshi: [00:02:35] The rules for replacing senators and representatives joining the cabinet are the same for, you know, whether they leave to become the president or vice president or if they die or become sick or retire. This is to fill vacancies for any reason. The rules are all the same. So, for example, President elect Biden has named one U.S. in this case representative, to be a part of his cabinet so far. And that's Ohio Representative Marcia Fudge, who is going to be nominated to be the secretary of Housing and Urban Development. Ohio Democrats are already lining up to fill that Marcia Fudge seat.

Hannah McCarthy: [00:03:11] So when a president picks members of their cabinet, I imagine they have to consider not only the right person for the job, but also that they'll be removing that person from their current position of power.

Matt Tokeshi: [00:03:23] That is definitely a consideration. And that's exactly what we're seeing with what President elect Biden. There's lots of factors that go into it. So President elect Biden so far has mostly selected more, I guess, technocratic type people rather than ambitious politicians who are seeking further office. So he's opted more for people that he's personally familiar with and who are, I guess, less politically ambitious, which means he hasn't named anyone from the Senate. But if you name a senator, you don't know for sure who the replacement is going to be and where. You have a very close fight for party control in the Senate, every single one of those seats is precious. You want to be very, very careful. And in fact, the the most careful way to approach this is just to not name somebody currently in the in the Senate.

[00:04:12] That's how we fill vacated seats in Congress here today on Civics 101. Don't forget to submit your questions at our website, civics101podcast.org.


 
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Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

Ask Civics 101: How Do Presidential Pardons Work?

Ask Civics 101: How Do Presidential Pardons Work?

Pardons are one of the powers given the President in the Constitution but not ever crime can be pardoned. What kind of crimes can be pardoned? And how do pardons end up on the President’s desk? Andrew Rudalevige, professor of government at Bowdoin College, breaks down the process.

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

This podcast is a production of New Hampshire Public Radio.

Ask Civics 101: How Does the Electoral College Vote?

The popular vote has been cast and the electors have been chosen but the Electoral College still needs to meet and cast their ballots. What does that actually look like? Where and when does it happen? Jessie Kratz, historian at the National Archives, gives us the play-by-play.

 

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

Hannah McCarthy:
Even though it is our job to understand it, even I sometimes need a reminder of how the Electoral College works. What do these people actually do? How is the Electoral College vote cast?

Let's take one state, Montana.

Jessie Kratz:
There's literally three people that are meeting on December 14th to cast their vote for president and vice president.

Hannah McCarthy:
This is Jesse Kratz, historian of the National Archives.

Jessie Kratz:
So some states require that the winner of the popular vote gets their electoral votes and then some states is determined by political party. So the political parties will tell their candidate, their slate, their electors, you need a vote for Biden or you need a vote for.

Nick Capodice:
So if you're on the Republican Party slate and you're an elector from the state in which the popular vote went to the Republican Party's nominee, then you get to vote.

Hannah McCarthy:
And this vote happens on the second Monday after the first Tuesday in December, which in 2020 is December 14th. The electors gather in legislative buildings in their respective states to cast paper ballots. This can be the secretary of state's office, the state capital, the governor's office, wherever state law tells them to meet.

Nick Capodice:
And if you are that Republican elector, then you're supposed to vote for the Republican nominee.

Jessie Kratz:
Some states have rules that the electors have to vote that way and other states don't.

And they can vote however they want.

Hannah McCarthy:
Which I always found a little baffling because these electors are chosen by the party. So you'd think they would vote for the party candidate. But we do encounter what are called faithless electors, people who vote for a candidate other than the candidate who won the popular vote in their state.

Jessie Kratz:
Sort of rare because the electors are really chosen from the parties faithful. So it's really unlikely that they would switch their vote to the opposite party. But this happened in 2016. An example uses a lecture from Hawaii. It was supposed to vote for Hillary Clinton, but instead voted for Bernie Sanders. And this was totally legitimate because some states have laws that the electors must vote for the popular vote winner. But Hawaii isn't one of them.

Nick Capodice:
And it is worth mentioning the Supreme Court did just issue a decision saying that it is constitutional for states to penalize faithless electors or to just nullify their votes.

Hannah McCarthy:
But if that vote checks out according to state law, here is what happens.

Jessie Kratz:
They vote for president and vice president and they vote on two separate ballots. And these are what we call certificates of vote. And this is the document that shows who the electors chose for president and vice president. And the electors have to sign, seal and certify these electoral votes. And then they send them to various officials, including the archivist of the United States.

I think we get two copies of these.

Hannah McCarthy:
Election code in each state dictates how this actually plays out.

Like in Massachusetts, the electors nominate and vote on who will be the temporary president, vice president and secretary of the Massachusetts Electoral College itself.

2004 Massachusetts Electoral meeting:
I rise to place a nomination for vice president of the Electoral College, the name of the Honorable Mushtaq Merza of Cambridge.

Hannah McCarthy:
It all varies state to state. You can actually watch these proceedings play out usually on C-SPAN. And my favorite aspect is the clothing, tuxedoes, sequined gowns, even tricorn hats. Electors really glam up for this moment.

Nick Capodice:
And unlike Election Day for general citizens, the college vote is not a secret ballot. You rise and declare who you'll be voting for, which also allows for a rare opportunity to lobby for what you believe in, even if what you believe in is abolishing the Electoral College.

2004 Massachusetts Electoral meeting:
Before I vote

I would like to say we need an electoral system that reflects that respects the sanctity of the vote. Every vote should be counted and count every vote.

And I dedicate myself to election reform.

Hannah McCarthy:
That's the end of the road for an elector's job, but it is not the end of the road for the vote itself. Those certificates have to have to make their way to the Senate where the final steps cement our president. And we'll cover that on Civics 101. And don't forget, if you have a question about the way this democracy works, we will find the answer.

Just ask us by clicking on the button at the top of our homepage at civics101podcast.org.

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Save time and money with automated transcription. Here are five reasons you should transcribe your podcast with Sonix. Automated transcription is getting more accurate with each passing day. Easily organize and search all of your transcripts after they have been transcribed and polished by your team. Rapid advancements in speech-to-text technology has made transcription a whole lot easier. Are you a podcaster looking for automated transcription? Sonix can help you better transcribe your podcast episodes.

Get the most out of your audio content with Sonix. Make your audio files more accessible with Sonix's automated transcription algorithms. Better organize your audio files with Sonix; it's really easy. Easily share and publish transcripts that were automatically transcribed by Sonix.

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Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.