There Ought to Be a Law!

Today we share our top five entries in this year’s Student Contest; There Ought to Be a Law. We asked students to submit a 1-2 minute audio or video clip telling us what there ought to be a law about, why this is a problem in their community, and how that law would fix that problem. We then asked NH State Senator David Watters to weigh in on their proposed legislation.

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Transcript 

Nick Capodice: [00:00:06.29] You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:00:08.54] I'm Hannah McCarthy.

Nick Capodice: [00:00:09.59] And Ring the bells and strike up the band. We are excited to announce the finalists for this year's student contest. There oughta be a law.

Hannah McCarthy: [00:00:17.96] Before we share the winning submissions, can you tell me how you settled on this topic? Having students submit proposed legislation?

Nick Capodice: [00:00:25.85] I got to admit, this idea came from a supporter of the show. Her name is DK Holland. She gave a TEDx talk entitled Kids Should Help Run Their Schools. She's a friend of the show. She heads the Inquiring Minds Institute in New York City. She is a relentless advocate for getting students civically engaged as early as humanly possible. DK wrote me that some of her students were confused about outdated laws and specifically racist and sexist laws that are still on the books in some states. And I thought, How about we have kids? Look into those and report back to us?

Hannah McCarthy: [00:00:59.91] So this contest was initially there ought not to be a law.

Nick Capodice: [00:01:03.96] Exactly. But it turned out to be a lot harder than I imagined to research outmoded local legislation. So we opted to have students tell us what new laws should be created instead. And my goodness, we got a lot of laws.

Student Montage: [00:01:22.05] If someone making minimum wage can't even make their rent. What about paying for food, medication, clothing?

Student Montage: [00:01:27.54] There is a gun shop that is only three miles away from one of our elementary schools.

Student Montage: [00:01:32.73] There ought to be a law about planting trees in every household.

Student Montage: [00:01:37.92] There ought to be a law about implementing civics education within all public schools.

Student Montage: [00:01:41.97] Solar panels can prevent $167 billion in health and environmental damages.

Student Montage: [00:01:46.95] Every person in the United States has to have a roof over their head.

Student Montage: [00:01:50.16] My law will fix this problem by implementing updated federal laws regarding privacy and ensuring that they are somewhat future proofed.

Student Montage: [00:01:55.83] The farmers should be nicer to cats.

Nick Capodice: [00:02:01.07] Today, what we're going to do is play our top five submissions and to see how they would hold up in the exhausting process of a bill becoming a law. I got a little outside help.

David Watters: [00:02:10.58] Any opportunity to deal with students. And they're so they're so smart and they're they're so right and they're so hopeful. And once once us old boomers get pushed out of the way, they're going to do a good job running the world.

Nick Capodice: [00:02:23.45] This is a man who has sponsored many pieces of legislation, New Hampshire State Senator David Watters. He's going to weigh in on our top choices and how he might approach these bills.

Hannah McCarthy: [00:02:34.49] All right. Let's get to it. What is our first law?

Nick Capodice: [00:02:37.40] Number one, Emily Chang.

Emily Chang: [00:02:41.27] Hello. My name is Emily. And I am from Sunnyvale, California. I believe that there ought to be a law that implements a mandatory life skills class lasting at least a year in all high schools across the country. Not being taught life skills in high school is a problem because students need to be prepared to properly take care of themselves in the real world outside an academic standpoint. This is especially important for high school students who are on the verge of adulthood and are taking on larger responsibilities. So here are a few examples of topics that could be covered during this class. First, a basic personal finance and budgeting topic so students will learn how to manage their money after graduation. Whether you're going to college, entering the workforce or anything, it is important to understand how to manage money in order to pay for food, shelter, tuition and other necessities. Additionally, a mental health topic would be wonderful to teach people about managing their day to day emotional levels and keep stress at bay. Of course, there are so many other potential topics, such as exploring occupations, resume building, cooking and even how to change a flat tire. Speaking from experience, this is very helpful when you're stranded on the road halfway home from a road trip and the only building near you in a five mile radius is a dilapidated Taco Bell. So having a basic life skills class will not only prepare students for their immediate future, but will also create healthy, long lasting habits for people to thrive.

David Watters: [00:04:08.94] What an interesting idea. And schools tend to go at this in different ways. Now, one thing that can be done, for example, is to say that all students might take career and technical education classes even if they're not concentrating in that area. So they could do some culinary arts, they could do some auto repair, they could do some technology, they could do some health care. So there are ways to do it. There's one thing to look at a YouTube video on changing a tire. It's another to be on the side of the road at 11 at night when it's raining and you can't find the jack parts.

Nick Capodice: [00:04:48.42] Proposed law number two. Annette Diaz.

Annette Diaz: [00:04:52.29] Hello. My name is Annette Diaz and I'm from Egg Harbor Township, New Jersey. There ought to be a law that ensures equitable access to education to low income minority students, because people like me have had to fight their way through doors that for other people, were already open. And I've had to teach ourselves how to fill out documents without the help of English speaking parents. I've had to put in double the work to prove to our schools that we are capable of doing more than what is stereotypically expected of us. We've never been on the same playing field as our fellow classmates. During my sophomore year, I overheard a student telling my guidance counselor about how he was the first person in his family planning to go to college. He didn't ask her for help in the application process. My counselor told him that she was not going to help him because that was something that he could figure out and that he was probably just being lazy. People often talk about how low income minority students usually perform below the level of the average student, but not enough people are talking about why this is and not enough people are doing something about it. Students like me don't just need simple solutions, like more funding. We need more counselors and administrators that not only help us, but that can actually understand us. We need more diverse curriculums and we need more access to resources that can help us walk an already rocky path. By doing this, we can hopefully close the education gap and inspire more students like me to go beyond the lines society has drawn for us.

David Watters: [00:06:19.21] Annette Diaz I mean, she's so right on not only about the experience that students go through and the resulting lack of opportunity and educational equity, but I think she also drives down to some of the actual practical things that you can do. When I see this, there are kind of two issues that arise. Is that what what can be done at the federal level? Because education is a responsibility of the states. And so I think at the federal level, it is quite possible to put funding which can then be provided to states for programs that they may set up. But it's very hard at the federal level to truly mandate down to the granular level what can be can be done. But I think certainly there could be funding here.

Nick Capodice: [00:07:05.74] Here we go. Law number three. Katherine Gage and Abby Stark.

Abby Stark: [00:07:09.58] Hi, I'm Abby Stark from Hooksett, New Hampshire.

Katherine Gage: [00:07:12.16] And I'm Katherine Gage from Windham, New Hampshire.

Abby Stark: [00:07:14.53] And there ought to be a law about climate change that comes in Fast and Furious, addresses it like nobody's business, while clean and sleek enough that it does not have too many side effects. This is a problem because, to quote Bill Nye, the planet is on bleeping fire.

Katherine Gage: [00:07:28.42] Well, yeah, all the weather is getting really messed up. So this march, Texas was buried in snow while at 75 degrees here in New Hampshire, which really wasn't what I signed up for living here.

Abby Stark: [00:07:36.91] Yeah, and can't we just pick up Texas in New Hampshire and flip their locations and everything will be all set right?

Katherine Gage: [00:07:42.61] I think a carbon fee and dividend is probably a better idea.

Abby Stark: [00:07:46.48] Yeah. All right. I forgot about that. Carbon fee and dividend is a great way to change to a clean energy market while also helping the people at the same time.

Katherine Gage: [00:07:54.76] Yeah, so here's how it works. So there's a fee on fossil fuels which increases every year making fossil fuels not profitable and transitioning us to clean energy. Second, all the money collected from the fee gets distributed to all American households equally to account for increased costs people are paying. And third, there's border adjustments on trade with other countries that don't have a similar carbon price. So this will encourage all other countries to price their carbon too, if they want to trade with us.

Abby Stark: [00:08:20.77] Yeah, and this would be great. It would reduce US greenhouse gas emissions by 40% in 12 years and 90% in 30 years, while encouraging similar policies in other countries through our trade. And second, help the poor with 96% coming out ahead financially and saving 295,000 lives in ten years.

Katherine Gage: [00:08:39.46] All right, let's get this carbon fee and dividend cooking.

Abby Stark: [00:08:42.64] Is that a climate change joke?

David Watters: [00:08:46.20] So. Carbon tax. Yeah. Yeah. Catherine Abby. I love the way they put it together. And I think that on this one, what was effective about their presentation is how do you make this seem reasonable, doable, and responsible when it is one that has become such a political flashpoint not only in the States but also nationally? We run into a variety of problems with it. One big one is that people focus only on the short term cost, that you're going to make something more expensive. They don't want to hear about the dividend. Other folks will say free market. Now, you know, the free market hasn't done a real great job on the climate crisis, has it? Right. As the free market that when a lot of government subsidies that created the climate crisis. So but that is another argument for folks who are the persuasion that government should not be intervening in these kinds of things. All that said, I think it's going to happen. You know, I mean, the carbon tax at the national level was a Republican idea in its origins.

Nick Capodice: [00:10:01.68] Law four Nestor Ilievski.

Nestor Ilievski: [00:10:04.92] Hello, my name is Nestor Ilievski. I'm 16 years old and I believe there ought to be a law about the problem of prison overcrowding. Prison overcrowding is a problem because it is one of the key contributing factors to poor prison conditions across the world, let alone America, as it causes problems such as lack of privacy, which can cause mental health issues and increase rates of violence. One such example of how prison overcrowding is a problem is in California. As California faced a serious issue with the prison population around 2010 to the point where it was a violation of the prisoners, Eighth Amendment right to protection against cruel and unusual punishments to have so many people confined in such a small space. As a result, California decided that their solution would be to release a significant portion of their prison population early, which did not solve the problem. After the prisoners release in 2011, crime rates spiked. I believe that there has to be a better solution to the problem, as there are many alternative measures, such as the decriminalization of lesser offenses like possession of marijuana and alternative punishments such as probation. But I don't think that they have a very good impact on the prison population. I believe that in order to fix this problem, a state should make a set amount of prisons that can account for their incarcerated population in order to make sure that overcrowding isn't an issue and there is space for every single prisoner.

David Watters: [00:11:50.81] What do you know, Nester Ilievski? I thought his articulation of this and of course, pointed to California. You know, in an interesting way, maybe just saying the overcrowding, if you if you, as he says, you know, define overcrowding and say, okay, you got to do something about it. The system is going to have to adjust. You're going to see parole reform. You're going to see drug sentencing reform. You're going to see more mental health. You're going to see diversion, you know, more mental health diversion courts. We've got veterans diversion courts, you know, drug diversion courts. This can be done. But there's got to be there's got to be a way to break this.

Nick Capodice: [00:15:50.51] And finally, our last nominee, Tzvia Ahmad.

Tzvia Ahmad: [00:15:54.05] Hello. My name is Tzvia Ahmad and there ought to be a law about menstrual equity. This is a problem because women are often put at a disadvantage during their period. For instance, high school students are often have to prioritize their health or their education. During these unpleasant times, and for some high school students who come from low income households or women in general who have low income jobs, have to prioritize putting food on the table or having a roof over their head during their periods as menstrual products are quite expensive. As an average menstrual spends about $6,000 on these products every year during their lifetime. So obviously that money can be a lot for some people. But for most people, like these women with low income jobs, that money can make a huge difference for them. And with that, these well, these women with low income jobs and from low income households have to use unhygienic substitutions along with women incarcerated in state prisons. They have to use rags, adult diapers, toilet paper and such to survive. And with that leads them to high rates of cervical cancer, bacterial infections like toxic shock syndrome, and even possibly death, especially for these women incarcerated who are put in unpleasant situations in prison, in state prisons and have lack of resources and poor quality conditions there already. Therefore, their their needs to be a menstrual equity law instilled in an American government system to ensure that these women and these few groups and more have the resources and access to get these products, especially since this country have the population consists of women, We need to shut out all of those women, not just women, who in these situations were women from all different backgrounds. We need to make sure that they have the access, they have the accessibility and all the safety protection under a law in American government to survive and overall be able to be happy with their own bodies during a natural bodily function during that time.

David Watters: [00:17:56.43] Oh, this is just so great. And and again, she's so right. And I mean, what I liked about this idea is the way it's expanded it beyond the kind of focused focus that there's been on the schools and said, no, we got to think about this much more, much more broadly.

Hannah McCarthy: [00:18:15.21] Did Senator Watters tell you which was his favorite?

Nick Capodice: [00:18:17.85] He said he was reluctant to pick one specifically because he loved them all. So then I asked a few of DK's students to weigh in on their favorites among the finalists.

Ed Zúñiga Velasco: [00:18:27.06] My name is Clara Flanders and I go to Brooklyn Technical High School in Brooklyn, New York. I think it was either making period products free or much cheaper than they are now. And I think this one struck me as a woman myself. So I understand like how often you need to get those products and how that kind of price can definitely add up over a long period of time. And I think when I was listening to it and just thinking about the fact that many of the people who are making laws currently are men, I think is very easy for them to overlook and maybe not think as very important or something that needs a lot of attention because it's not something that directly affects them.

Ed Zúñiga Velasco: [00:19:08.34] I'm Ed Zúñiga Velasco. I go to Art and Design High School. Well, about the prison overcrowding one definitely because prison what prisons do right now, like the function they serve, is very close to slavery in that prison. They're doing unpaid labor. Conditions aren't great.

Rachel Patashnik: [00:19:27.99] I'm Rachel Patashnik and I'm a junior at the High School of Art and Design. I liked the making Basic human life skill classes in schools might be an individual state kind of law change because school systems are different in each state. But in general, I really do think that it would be beneficial to the future if people were a little more prepared.

Lynn Watford: [00:19:55.70] I'm Lynn Watford and I go and I attend the School of 25th Grader. Some of the stuff I didn't really understand, but the second one I kind of agreed with the one of the most it was the one about equality for what was the word, um, low income, like people that just came and they extra help and all that and they can't get that stuff. It's kind of, it's really unfair.

Hannah McCarthy: [00:20:24.14] Let's not keep anyone in suspense any longer. Time to reveal this year's winner.

Nick Capodice: [00:20:29.09] The whole Civics 101 team listened to all the submissions and it was nearly impossible to pick a winner. But we chose Annette Diaz from Egg Harbor Township, New Jersey.

Hannah McCarthy: [00:20:40.46] Congratulations, Annette. A bag of civic swag is headed your way and we will put all of the top winners on our website, civics101podcast.org.

Nick Capodice: [00:20:49.39] And before we say goodbye, I asked Senator Waters what advice he'd give to all of you out there who submitted laws. And I beg you to listen to his words.

David Watters: [00:20:58.54] Demand change. Talk to your legislators. Call people like me and say I want you to introduce a bill on this. I don't know if students really understand the extraordinary impact they have when they show up and they can get things done. And you know what? If people don't get things that you that you want done, run for office, Maybe sometimes you don't change minds, you replace them. So I'm looking forward to seeing all these all these students in leadership in our in our in their home communities and in their states.

Nick Capodice: [00:21:38.59] That's a wrap on our student contest. Follow us on Spotify or Apple Podcasts or wherever you get your podcasts for our upcoming series on civil rights cases and the Supreme Court. Today's episode was produced by me, Nick Capodice with Johanna McCarthy. Thank you.

Hannah McCarthy: [00:21:52.51] Thank you. Our staff includes Jacqui Fulton and Erika Janik is our executive producer.

Nick Capodice: [00:21:57.04] And we've got a fun biweekly newsletter. Transcripts of our episodes and a whole host of other things at our website, civics101podcast.org.

Hannah McCarthy: [00:22:05.56] Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NPR New Hampshire Public Radio.

Made possible in part by the Corporation for Public Broadcasting.

The Chinese Exclusion Act

Between 1882 and 1965, a huge percentage of would-be Chinese immigrants were excluded from the United States. This is the story of how the U.S. came to exclude Chinese workers from immigration and Chinese immigrants from citizenship, the multi-generational reverberations of this practice and its extension to nearly all Asians and Pacific Islanders.

Jack Tchen of Rutgers University and Jane Hong of Occidental College are our guides to the Chinese Exclusion Act.

Click here to download a Graphic Organizer for students to take notes on while listening to the episode.

Episode Resources

Have two hours to deep dive into Chinese Exclusion? Check out this PBS American Experience episode.

We stuck to the 1882 Chinese Exclusion Act in this episode for brevity’s sake, but there is much more to learn about the history of anti-Asian legislation. The Page Act of 1875 banned women brought to the U.S. for “immoral purposes” but was mostly utilized against Chinese women. The 1892 Geary Act extended and expanded the Exclusion Act, introduced an early form of restrictive border control and required all Chinese to carry documentation proving they’d entered the country legally with them at all times.

Be sure to listen to our episode on the Wong Kim Ark case for more context on the kind of legal injustice that Asian Americans encountered during this long period of American history. You should also get to know the case People v Hall which ruled that Chinese Americans (joining Native and African Americans in this categorization) could not testify against white Americans in court.

Episode segments

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ChineseExclusionAct_FullFinal.mp3: Audio automatically transcribed by Sonix

ChineseExclusionAct_FullFinal.mp3: this mp3 audio file was automatically transcribed by Sonix with the This transcript may contain errors.

Hannah McCarthy:
Civics 101 is

Jane Hong:
Supported in part by the Corporation for Public Broadcasting.

Hannah McCarthy:
The first transcontinental railroad was constructed by two companies, one racing from the east and the other from the west. When they met in Promontory, Utah, in 1869, they drove a golden spike to connect the two lines, just like that travel and trade were transformed in the United States. And there's a pretty famous picture of this moment. It's got two locomotives face to face, the head engineers of each company shaking hands. You've got bottles of champagne, proud workers lining up to face the camera. It's a photo that shows a defining moment in American history. And this photo is a lie.

Nick Capodice:
A lie. Let me have it, Hannah.

Hannah McCarthy:
This is Civics 101. The one I'm Hannah McCarthy.

Nick Capodice:
I'm Nick

Nick Capodice:
Capodice.

Hannah McCarthy:
And today we were talking about a piece of legislation and the history that surrounds it, a federal law, the first of its kind, that banned an entire group of people from entering the United States. Today, we're talking about the Chinese Exclusion Act.

Nick Capodice:
Which somehow has something to do with a photo of the transcontinental railroad.

Hannah McCarthy:
To me, this photo says so much about the attitudes towards Chinese immigrants in the United States because of the 15000 plus Chinese people who worked on the transcontinental railroad of the contingent of those workers who attended the Golden Spike Railroad finishing ceremony. Not a one of them appears in that photograph. Most of the rail workers in the West, as many as 90 percent were Chinese, but with a single photograph there scrubbed from that story. Just as the Exclusion Act attempted to scrub Chinese workers from the nation.

Jack Tchen:
Well, the 1882 Exclusion Act is a consequence of a series of attempts by especially Western politicians. But it's really a national political act to try to limit the numbers of Chinese arriving into the ports of the West Coast.

Hannah McCarthy:
This is Jack Tchen, historian, author and chair of Public Histories and Humanities at Rutgers University.

Jack Tchen:
So the need to Exclusion Act is really a way to say, well, we have to restrict and manage the laborers who are coming in.

Nick Capodice:
So the group which was excluded from entering the U.S. in 1882, it's just Chinese laborers.

Hannah McCarthy:
Well, the language of the law says, quote, skilled and unskilled laborers and Chinese employed in mining. That meant that diplomats, teachers, students, merchants and anyone else who could prove that they were not laborers could attempt to enter the United States. To be clear, that's still excluded a huge number of potential immigrants from China. Mind you, this act comes after American industry had already taken full advantage of Chinese laborers. Large numbers of Chinese immigrants had poured into the U.S. in the mid 19th century, following bores and crop failures in China, especially with the discovery of gold in California. In 1848, hundreds of thousands of people came seeking mining, agriculture and eventually railroad work.

Jack Tchen:
All that labor was welcomed on one hand, and those who benefited, they made plenty of money and they were initially at least in favor of continuing to bring in that Chinese labor because they essentially were the contract laborers as opposed to enslaved laborers of the West Coast.

Hannah McCarthy:
Remember, the transcontinental railroad was completed in 1869. That is four years after the end of the civil war. It was during the rails construction that the United States passed the 13th Amendment and abolished the enslavement of human beings, creating a so-called labor problem. Meanwhile, you've got this influx of Chinese immigrants, mainly men in the West.

Jack Tchen:
So basically there's a new solution to the quote unquote, labor problem, which is really how to get the cheapest labor or the lowest cost labor that you can exploit and dehumanize the easiest. So that set of challenges really has people looking towards Asia as a solution, not just China, but also South Asia.

Hannah McCarthy:
Anti Chinese sentiment was already rampant in California at this point as the gold rush hit a fever pitch. White miners were quick to blame Chinese miners for the overcrowded field and competition and the scapegoating and bigotry and racism made the railroad industry reluctant to hire Chinese laborers. However, the job was dangerous, sometimes deadly, and white workers were hard to recruit. So the railroad hired Chinese laborers who they considered inferior by the thousands. They paid them far less than white workers and made them sleep in tents while the white workers slept on rail cars. But I have to say at this and every step of anti Chinese practice and legislation in the United States, Chinese immigrants protested and boycotted and went on strike. But that anti Chinese and eventually anti Asian sentiment persisted.

Nick Capodice:
So the U.S. went from exploiting Chinese laborers, relying heavily on them for the construction of this very American rail project to banning Chinese laborers once that work was completed.

Hannah McCarthy:
Yeah, there's this notion in the U.S. that the influx of Chinese immigrants is threatening white purity. There's also an economic depression in the 1970s that white Americans partially blamed on Chinese immigrants. Basically, the message was low wages and bad economy are the fault of all of these Chinese laborers, this large group of others. This is a message that is wielded by politicians at the time. We needed Chinese laborers to help us build all of this necessary infrastructure. But now that we've finished most of that, they are still here. And that is seen as a problem.

Jack Tchen:
And you see these all on the political cartoons of the time in which these invaders are coming and destroying our moral fabric. Right. You have Chinatowns becoming places in which they're perceived to be dangerous places. OK, so opium is there. There are some opium dens there, but are opium dens all over? Whites are using the opium dens more than the Chinese are. OK, so so these things get flipped around. And what sticks is that? Oh, the Chinese are opium eating, rat eating, disease infested, and they're dangerous to the white family and to white morality.

Hannah McCarthy:
And when it comes to the Chinese, there's this other complication at play and that's the fact that Americans love Chinese imports. The U.S. had been engaged in trade with China, importing silk and tea and porcelain for nearly as long as we had been our own nation. That is one of the reasons we built the transcontinental railroad to begin with.

Nick Capodice:
That's interesting. So a railroad across the country was an easier way for East Coast merchants to get access to goods in China.

Jack Tchen:
And it's an obstacle, in fact, to the West Coast politicians who wanted to appeal to the xenophobia that they could easily stir up and as a way for them to get elected and reelected locally. But it was in conflict with those merchants from the Northeast, especially, who were making their money from the China trade and from the Asia trip. Right. So there's a conflict between the West Coast not wanting the people and the East Coast wanting the things.

Hannah McCarthy:
Jack describes America's perception and attitude toward China and the Chinese as both xenophobic, fearful and prejudiced against their culture or group and xenophilic, attracted to and appreciative of another culture or group, both of which in this case dismissed the humanity of Chinese people. The solution to this love-hate perception of the Chinese is to pass the Chinese Exclusion Act that keeps some Chinese immigrants. Laborers out while allowing others in

Jack Tchen:
Exceptions are Chinese merchants are OK. Chinese merchants are OK because that's where the East Coast folks are able to kind of say, well, no, but we want that stuff, we love that stuff. So you can't ban Chinese merchants. And the other thing they can't ban you can't ban Chinese scholars or teachers. OK, and you can't ban Chinese students. So those become the exempt clauses. Right. So there's a class and kind of class dynamic that are the ways in which it's not strictly exclusion, but it's restriction.

Nick Capodice:
Ok, so American politicians are using Chinese laborers as the scapegoat for an economic downturn and a threat to white Americans. I get that. But this is national legislation we're talking about. How on earth did enough Congress members from across the whole country agree to a law that really only applied to California and the Northeast?

Jane Hong:
The bottom line is the anti Chinese movement could not have become nationalized without the support of national politicians.

Hannah McCarthy:
This is Jane Hong, history professor at Occidental College.

Jane Hong:
And so by the 70s and 80s, both political parties, Republicans and Democrats, they both adopt anti Chinese platforms as part of their national party platforms because both parties, they desperately want California's electoral votes and elections at this point are really razor thin. And so presidential elections in particular. And so that's why you have people like James Blaine, who's a senator from Maine, of all places, become one of the most vocal supporters of Chinese exclusion. Right. I don't even know if he had ever seen a Chinese person in real life before. But the issue itself, right, the anti Chinese kind of issue, it becomes an electoral strategy for national politicians.

Hannah McCarthy:
So I wanted to know what this actually meant for Chinese people living in the states, like what happens to others of a cultural or ethnic group when some of their members are banned from a country.

Jane Hong:
There's a lot of violence against the Chinese, particularly late 19th century. There are whole lists of kind of massacres and riots, race riots in places across the west in particular.

Hannah McCarthy:
Jane told me about one incident that occurred before the Chinese Exclusion Act, an 1871 mob attack on a Chinese neighborhood in Los Angeles that massacred 18 men and boys. It's one of the largest lynchings in American history. Just to give you a sense of the hateful attitude that had been percolating even before the passage of the 1882 Act.

Jane Hong:
I think that history is something that many historians have been writing about, but I don't think it's really entered the public conversation as much. I think that's true. I mean, in terms of segregation, schools were segregated for many Chinese and other Asian students on the West Coast. There's also residential segregation. So in terms of where Asian-Americans could live in places like California, they were really restricted. And for many years, things called restrictive covenants. Right. Which prohibit particular houses from being sold to nonwhite peoples. Those restrictive covenants, I mean, they're used to block African-Americans from buying homes. But many of those contracts also include mentions of either Orientals, Mongolians, Asiatics. Right. So there are all kinds of racial terms that were used to describe Asian-Americans. And so they were also targeted by many of those kind of housing restrictive housing policies. I think another piece in 13 states across the country, mostly in the West. You also have state legislatures pass alien land laws that make it really difficult for particularly Asian-Americans to own or even rent agricultural land.

Nick Capodice:
So what were people doing in response to these laws? Did they have any recourse whatsoever?

Jane Hong:
For

Jane Hong:
Chinese during this period? I think what's really important to remember and what people often kind of don't think about is that for many Chinese at the time, they believed the laws, the Chinese exclusion laws were immoral. And so they didn't have any compunction about trying to circumvent them or challenge or contest them in courts of law. So you have lots of Chinese who hire local lawyers in places like San Francisco. And there's a whole industry that emerges around this where Chinese are actually contesting. They're suing the US government for the right to enter the United States.

Hannah McCarthy:
One prime example of this is the case of United States versus Wong Kim Ark, a man of Chinese descent born in the United States who was denied reentry to the U.S. after visiting his family in China. And I won't go into it here, but we do have a whole episode on the Wong Komaki. So please give that a listen for context.

Jane Hong:
So there's all these cases that are happening at the same time that you have, you know, Chinese who. Develop ways to again circumvent the laws by claiming to be the son of a merchant.

Hannah McCarthy:
This is otherwise known as the paper son system, as in someone was claimed as a family member on paper to get them access to the United States. So there was resistance, to be sure. But that didn't stop the U.S. from doubling and tripling down on exclusion. What started with Chinese immigrants soon applied to many others.

Jane Hong:
When you trace the longer history of anti Asian racism and Asian exclusion, you know, Congress targets Chinese first, but they they eventually then target Japanese and Koreans. Then they target Indians or South Asians and then they target Filipinos. So it basically is the story of kind of the 80s to the 1920s is successive waves of Asian immigration. So after the Chinese are restricted, more Japanese enter as well as Koreans, and then there's a lot of clamor for them to be restricted. And then by 1917, South Asians are the ones who you know, people are talking about the tide of turbans that are entering the United States, the threat that they pose as well. Congress brings Indians under exclusion in 1917 and by 1920 for all Asians except Filipinos. Right. Become targets of exclusions. They basically can't immigrate in for long term immigration.

Hannah McCarthy:
The 1917 Immigration Act goes as far as to draw a circle around a huge chunk of Asia, call it the Asiatic barred zone, and prohibit immigration from nations that fell within that category.

Jane Hong:
You know, these are people from East Asia, Southeast Asia, South Asia. Many of them didn't see themselves as having anything in common on Indians and Chinese during this time, like they didn't necessarily see themselves as related. But according to the law, they were all considered Asiatic. And so, you know, in many ways what we consider Asian-American today, it's a category created by U.S. immigration exclusion laws in particular.

Hannah McCarthy:
And Jane clarified U.S. immigration and exclusion law created this catch all category to talk about Asian-Americans. But the terms used by the United States were words like Asiatic, Oriental and Mongolian.

Jane Hong:
And the legal term that in many ways operated as a catch all for Asian American groups was, quote, aliens ineligible to citizenship because there were they Asians were really distinct group. They were one of the the only kind of racial group in American history that was barred from U.S. citizenship for so long. So until fifty two. So those are the terms that people used before the 1960s in various different ways, the term Asian-American. So that actually has a different origin story. And that one's more rooted in the activism of Chinese, Japanese and other Asian-Americans in the 60s. It's like a political project. So it's so Asian-American doesn't have the same kind of negative connotations because I think it itself was a term of solidarity that was born out of activism and struggle.

Nick Capodice:
What did it take to finally take this kind of racist legislation down? Did some legislator finally figure out how to win support to repeal these acts?

Hannah McCarthy:
Well, much like the reason the Chinese exclusion and subsequent restrictive immigration acts passed in the first place, it was a political game to get them off the books.

Jane Hong:
U.S. interests in Asia are really the driver that begin to dismantle the Asian exclusion regime, because by the 1940s, like I said before, no Asian group, including Filipinos, nobody could enter the United States in meaningful numbers. But the U.S. and China were wartime allies, and the United States really wanted to keep China in the war fighting against Japan because the fear was China would abandon the allies and join the Japanese to fight against the West. That was one of the biggest fears in Washington Congress, which basically controls U.S. immigration and naturalization policy. Congress repeals the Chinese Exclusion Act in 1943, and they give an immigration quota of 105 to China and they give Chinese eligibility to U.S. citizenship. And so it's meant to be a really symbolic it's kind of a token gesture. So it really was, you know, in many ways it was a wartime measure, but that opens the door for other Asian groups to make similar claims.

Hannah McCarthy:
I just want to pause here and emphasize we go from essentially zero Chinese immigrants to 105. But compare that to quotas in the tens of thousands for immigrants from most European nations, for example. Still, activists see the crack in the door and they use it to push for legislation. By 1946, Indians fight for similar provisions and they end up with a quota of 100 people per year and. Get eligibility for U.S. citizenship, Filipinos get eligibility that same year by 1952, Congress gives all Asian countries and colonies quotas of one to 200 per year and strikes down racial restrictions for citizenship. So all Asians become eligible for citizenship for the first time ever. But the real reason that Congress caves its 1952 war in the middle of the Cold War and communist countries are calling us out.

Jane Hong:
The U.S. wants to wants to prove that it's not racist. It wants to prove that it can uphold democracy, that it practices racial democracy, because during this time, the Soviet Union and other communist powers are specifically attacking the United States for its racial records. Right. For its racial hypocrisy. I'm talking about, you know, lynching the American foul segregation as well as racist immigration policies. So it's really the Cold War, right, that that leads to the formal repeal of Asian exclusion.

Hannah McCarthy:
Now, remember the story of formal exclusion. It starts in 1882. But even after that, 1952 formal repeal grants Asian immigrants the ability to gain citizenship. Immigration from Asian nations is still restricted to 105 immigrants per year. It isn't until 1965 that meaningful changes are made with the 1965 Immigration and Nationality Act. Here's Jack Tchen again.

Jack Tchen:
Because of the effort to also deal with another international embarrassment of racism against blacks. Right. And racism in general. So it's too embarrassing. It's just all too embarrassing. So the way to do that is no. We we welcome people. You know, we're in the height of the Vietnam War. We're not racist. We're welcoming the world's people. So it's a different narrative that gets played out in terms of the slippage between foreign policy wars abroad for American interests and American purposes and our self-image.

Nick Capodice:
So Chinese weren't allowed into the U.S. in any significant numbers from 1882 until 1965, and that was lifted because we were embarrassed.

Jane Hong:
The '65 Act is a it's a perfect example of unintended consequences. And that's how most scholars talk about it, because Congress did not expect that the majority of people who took advantage of the 65 law would be people from Latin America and Asia. They did not expect that at all. And yet that's what happened beginning in the 1970s. The majority of immigrants coming to the U.S. have been from Latin America and Asia.

Nick Capodice:
I feel like the story of Asian exclusion is very much an illustration of how we got to where we are today and not just in terms of immigration to the United States, but also how we view and treat Asians and Asian-Americans in this country even today.

Hannah McCarthy:
And we have to say this episode is being released in April of 2021 and what we hope are the waning days of a global pandemic. And Asian Americans have felt the heat of scapegoating when it comes to covid-19, with top leaders referring to it with the slur, the, quote, China virus blaming one nation for the devastation caused by this illness. Reports of racially motivated harassment and violence against Asian-Americans are significantly up. And that's keeping in mind the fact that incidents of harassment and violence are thought to go grossly underreported. But this trend is not new. Blaming the problems of our nation on China and the people of Chinese descent, or who look Chinese relying heavily on China's imports while demonizing its people, conflating all Asian-Americans as a single group. This is simply the legacy of one hundred and fifty years of legislation that institutionalized anti Asian racism and white supremacy in the United States.

Jack Tchen:
So China has always been the kind of conjoined twin evil twin, the doppelganger twin root of all of this so that you can always blame the twin for any problems that you're having, any behavioral problems that you have. It's really not You. It's the twin. Right. So I think there is a kind of dynamic in American culture in China.

Hannah McCarthy:
Of course, there is another inheritance at play here, a century and a half of pushback from activists and scholars both inside and out of the communities being excluded.

Jane Hong:
I guess the hope is that by uncovering this history, which in many ways, I mean, there's a long history of nativism, but this is a more recent version of it. I guess the idea is by uncovering these networks, it'll make it easier to challenge and dismantle them. So we'll see what happens. But I have to believe about matters of that can do something.

Hannah McCarthy:
That's it today for Civics 101 and the Chinese Exclusion Act, but there is much more to say about Anti-Asian legislation and practice in the United States. We'll post some resources on our website, civics101podcast.org. This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Jackie Fulton. Erica Janik is our executive producer. Music in this episode by Crowander and Chris Zabriskie. Feel like you learned something today? There is so much more in the Civics 101 universe. You can follow us on Apple podcasts or wherever you get your podcasts so that you never miss an episode. Thanks for listening.

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Right to Privacy: Roe v Wade

Mention of Roe versus Wade can silence conversation or incite heated debate. Candidates campaign on protecting it and getting it overturned. Your opinion of the case can define your politics. Ever since its ruling in 1973, we have told a story about Roe v Wade. But what are the actual facts of the case and what of that infamous opinion still stands today?

Renee Cramer of Drake University and Mary Ziegler of Florida State University find the facts in the moral fable.

Click here to download a Graphic Organizer for students to take notes on while listening to the episode.

Episode Resources

The Bill of Rights Institute has a comprehensive (and quick) video overview and set of discussion questions to further help facilitate conversation about this controversial case.

Episode Segments

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Transcript:

Hannah McCarthy: [00:00:00] This is an episode about a case, a couple of cases that no longer carry the force of constitutional law. This episode was made when the essential holding of Roe v Wade still stood. This is no longer the case. It's a rare occurrence for the Supreme Court to overturn a decision outright, especially a landmark decision. But that is indeed what happened on Friday, June 24th, shortly after 10 a.m.. In a 6-3 vote to uphold a Mississippi abortion ban. In the case of Dobbs v Jackson Women's Health Organization and a54 vote to overrule Roe v Wade in its entirety, the Supreme Court has eliminated a federal right to abortion. In the majority opinion, Justice Samuel Alito called Roe egregiously wrong from the start. The opinion holds that Roe and Casey must be overruled. Casey, by the way, refers to Planned Parenthood v Casey determined in 1992 which could have overruled Roe v Wade, but did not. The reasoning at the time being that row was practicable. The provisions of row depended upon by people in the United States, and that landmark precedent was important to preserve. 30 years later, a majority of the court determined that Roe and Casey must go, period. When we first released this episode in 2021, one of our guests, Rene Cramer, said something that I didn't include in the episode because it was a prediction, not yet a fact. Hey, Renee, you were right.

Renee Cramer: [00:01:29] And I've been predicting that Roe will fall for the last three years. I mean, on live television, I have said Roe will fall. The fact that it didn't astounds me. When Roe falls, access to reproductive health care of almost all kinds will depend on where you live.

Hannah McCarthy: [00:01:46] Listen to this episode to get an understanding of what Roe V Wade was, what Casey was, and why they happened in the first place. But no, the decisions about abortion access are now the providence of your state. Here we go.

Hannah McCarthy: [00:02:01] Every year, around 7000 cases try to beg their way onto the Supreme Court's docket and only about a hundred, you know, maybe 150 of them make it. And while all of them are significant, the majority pass by without a ton of scrutiny. There is one case in particular, though, that for some was pure scandal, a ruling so controversial that to this day, advocates work tirelessly to preserve or overturn it.

Archival: [00:02:34] To raise the dignity of woman and give her freedom of choice in this area is an extraordinary event and I think this January 22nd, 1973, will be an historic day.

Archival: [00:02:49] In this instance, the Supreme Court has withdrawn protection for the human rights of unborn children. And it is...

Archival: [00:02:56]  What is the most important human right? The right to life, the right to life, the right to life.

Archival: [00:03:01] That a fetus is not a person. Yes, it is. Ok, that's where the disagreement is.If women could keep themselves from getting pregnant when they didn't want to. I tell you what it is, it's chastity. Hey bagpipes, shut up. When does it become a child to you?It's my body. I would have to carry the child.

Hannah McCarthy: [00:03:21] This is Civics 101, I'm Hannah McCarthy.

Nick Capodice: [00:03:25] I'm Nick Capodice,

Hannah McCarthy: [00:03:26] And today we're taking on a case that these days shows up in every Senate hearing for a new nominee to the Supreme Court

Archival: [00:03:34] The case that every nominee gets asked about. Roe v. Wade. Can you tell me whether Roe was decided correctly? At protests and during elections? If Roe v. Wade is Overturned, what would you want Indiana to do? Would you want your home state to ban all abortions? You have two minutes.

Hannah McCarthy: [00:03:53] A case that fueled the fire of two movements that draw a line in the reproductive sand, Roe vs. Wade.

Renee Cramer: [00:04:01] I will start by saying that probably anything you think you know about Roe is wrong.

Hannah McCarthy: [00:04:06] This is Renee Cramer, law professor at Drake University.

Nick Capodice: [00:04:10] Well, hang on. Hang on. This has got to be one of the most famous cases the Supreme Court ever ruled on. And Renee saying we don't actually know it. I mean, Roe v. Wade is the case that legalized abortion, right?

Renee Cramer: [00:04:24] No, actually, it simply said that Texas couldn't criminalize abortion in the first trimester.

Hannah McCarthy: [00:04:31] As it turns out, before you can start learning Roe v. Wade, you first have to unlearn Roe v. Wade.

Renee Cramer: [00:04:39] And one of the first things that we have to unlearn about Roe is that states weren't outlawing abortion because of religious or moral views. The church was actually not a big player. The Roman Catholic Church or the evangelical church was not a big player in abortion politics until after ROE. State laws limiting access to abortion were passed because doctors wanted to decide which women could access them. So most states began with laws like if your health is in peril, your doctor can facilitate an abortion. And doctors had a really liberal view of what that meant.

Hannah McCarthy: [00:05:18] The main factor in providing an abortion was the health of the mother. So if a woman was going to die if she carried to term, she could, of course, abort. But the same went for mental health risk, like postpartum depression or not having enough money to support a family or being at risk of losing your job if you were pregnant.

Nick Capodice: [00:05:37] Ok, so Roe v. Wade is not about legalizing unrestricted abortion. And anti-abortion laws were not necessarily based on pro-life ideas, pro-life being the term anti-abortion activists use for their movement.

Hannah McCarthy: [00:05:52] Yeah, and one more thing. Roe v. Wade did not result in the plaintiff, Jane Roe, [00:04:00] real name, Norma Jean McCorvey, getting an abortion. She ended up carrying the child to term and giving the child up for adoption. While we're on the subject of Norma Jean McCorvey, McCorvey later went on to speak out against abortion and call her involvement in Roe v. Wade the biggest mistake Of her life.

Archival: [00:06:18] Norma McCorvey: I've done a lot against his teachings, but I think the far greater sin that I did was to be the plaintiff in Roe vs. Wade.

Nick Capodice: [00:06:25] Ok, that I have heard Norma McCorvey became a major anti-abortion activist.

Hannah McCarthy: [00:06:30] She did

Hannah McCarthy: [00:06:31] Indeed. Which makes this interview clip all the more complicated.

Archival: [00:06:35] Nick Sweeney: [00:04:37] Do you think they would say that you used them? Norma McCorvey: Well, I think it was a mutual thing. You know, I took their money and they put me out in front of the cameras and told me what to say. Norma McCorvey: And that's why I said that.

Hannah McCarthy: [00:06:47] Is Norma McCorvey telling director Nick Sweeney that essentially she was putting on an act in exchange for money from pro-life groups. She also says in this interview that if a young woman [00:05:00] wants to have an abortion, that is her choice. McCorvey passed away in 2017. So unfortunately, we cannot ask her about any of that. But there you go. This documentary, by the way, came out in 20/20. It's called A.K.A. Jane Roe. And the one last thing I will say about unlearning Roe v. Wade when we talk about Roe, we're actually talking about Roe and a case called Planned Parenthood v. Casey.

Nick Capodice: [00:07:28] Another case.

Hannah McCarthy: [00:07:30]  Yep. In 1992, Planned Parenthood v. Casey nearly resulted in Roe being overturned. It was not overturned, but it was changed drastically enough for Chief Justice William Rehnquist to write the following, quote, Roe continues to exist, but only in the way a storefront on a Western movie set exists, a mere facade to give the illusion of reality. And we will come back to that later. [00:06:00]

Nick Capodice: [00:07:59] Wow, Hannah, now you've told me what this case is not. Can we talk about what it is?

Hannah McCarthy: [00:08:04] Yes. Back to Jane Roe.

Renee Cramer: [00:08:06] So this was a very troubled woman for most of her life, both before and after the case. What brought the case to be was that she was an unmarried woman who this was her third pregnancy and she did not want to remain pregnant. She wanted to have an abortion in the state of Texas, abortion was outlawed unless to save the life of the mother or the mother was raped or a victim of incest. So at no time could a woman simply access abortion. She had to be have her life at risk or have the pregnancy to be the result of a crime. So she lied and said that she had been raped. And that makes this problematic for a whole host of reasons, but not problematic legally.

Mary Ziegler: [00:08:49] So she eventually, after trying to get an abortion illegally, found her way to two attorneys, Linda Coffee and Sarah Weddington.

Hannah McCarthy: [00:08:56] This is Mary Ziegler, law professor at Florida State University College of Law. And author of a number of books about abortion law and Roe v. Wade,

Hannah McCarthy: [00:09:04] She eventually gave birth anyway before the case was decided and the child went up for adoption, but the case continued. So Coffee and Weddington filed suit in a district court in Texas on Makarevich behalf, and they used an alias, Jane Roe.

Hannah McCarthy: [00:09:21] The purpose of an alias, by the way, is to protect the identity of the plaintiff, sort of similar to using TALOS initials and New Jersey Vitiello because she was a minor at the time. Even though we later found out Roe's identity, you can imagine why Coffee and Weddington might have initially wanted to protect their client's privacy.

Archival: [00:09:40]  But when She came Forward, Norma McCorvey became the emblem of the movement.So she's here today coming out of hiding for this. And we appreciate her courage, darling.

Hannah McCarthy: [00:09:50] Anyway, the case goes to a Texas district court and here is the kicker in that district court, [00:08:00] a three judge panel found the law that prevented Norma McCorvey from pursuing an abortion to be invalid. But District Attorney Henry Wade was not so happy about that. He appealed the case to the Supreme Court. And by the way, the court almost did not take it. Here's Renee again.

Renee Cramer: [00:10:20] Some of the people on the court said, well, we shouldn't hear this case. There's a rule that the court cannot hear MOUT cases. A moot case is one that doesn't matter anymore. And you could look at Norma McCorvey or Jane Roe and say, well, she's not pregnant anymore. She doesn't need access to an abortion. And the court does that sometimes when it wants to avoid an issue like affirmative action, some of the first affirmative action cases, they'd say, well, he already got his degree. We don't need to we don't need to trouble with this. But they looked at Jane Roe and the state of Texas and they said, you know, any woman in Texas who's pregnant and doesn't want to be is going to have this problem. They defined her as part of [00:09:00] a class, a class of people, meaning any woman who could become pregnant, who didn't want to be pregnant. And they said we have to decide this on their behalf, using the facts of her case as the starting point.

Hannah McCarthy: [00:11:12] So the court takes the case.

Hannah McCarthy: [00:11:15] We'll hear arguments number 18 Roe against Wade.

Hannah McCarthy: [00:11:18] You've got attorney Jay Floyd arguing in defense of the Texas abortion restrictions and attorneys Linda Coffee and Sarah Weddington representing Roe and Floyd. Oh, Boy Floyd arguing a case that will ultimately decide whether a woman has a right to choose to have an abortion. Arguing opposite to accomplished female lawyers starts his argument like so,

Archival: [00:11:44] Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this they're going to have the last word.

Nick Capodice: [00:11:57]  Oh, that's just - that really happened?

Hannah McCarthy: [00:12:00]  Yeah, that really happened. It's been called the worst joke ever made in legal history.

Nick Capodice: [00:12:05] That's ridiculous. And I'm not really hearing a chuckle from the bench.

Hannah McCarthy: [00:12:10] No. Apparently, Chief Justice Warren Burger looked like he was going to come at Floyd for that one. So Weddington and Coffee argue along Ninth Amendment unenumerated rights. That's the amendment that says that just because a right isn't listed in the Bill of Rights doesn't mean that you don't have it. They also went for Fourteenth Amendment Rights to Liberty and cite the due process and equal protection clause of the Constitution.

Nick Capodice: [00:12:34] What's the argument of Mr. Live at the Improv Jay Floyd?

Mary Ziegler: [00:12:38] The state of Texas had two arguments, essentially saying even if there is an abortion right, these laws should still be unconstitutional. The first was that a fetus or unborn child was a person. So if a fetus or unborn child is a person within the meaning of the Constitution, that person would have, for example, a right to due process of law and to equal protection of the law, which would make abortion rights kind of a legal impossibility. Texas, the second argument was that the government had a compelling interest in protecting life from the moment of conception.

Archival: [00:13:16] Thank you, Mrs. Weddington. Thank you. We're going the case is submitted.

Hannah McCarthy: [00:13:20] So that is the first time this case is argued before the court.

Nick Capodice: [00:13:26] First time -- the court heard Roe v. Wade more than once?

Mary Ziegler: [00:13:38] So, I mean, one of the things that's worth noting, right, is that the court gets ROE in 1970 and there is no decision in Roe until 1973, which is really unusual. Right. I mean, the Supreme Court has slowed, but not three years kind of slow.

Nick Capodice: [00:13:59] Three years. What happened?

Hannah McCarthy: [00:14:02] Well, it's 1970 and the court says, OK, we will hear Roe and oral arguments happen. And the justices are [00:12:00] discussing getting ready to make a ruling. And Justice Harry Blackmun proposed an opinion that will say Texas law is unconstitutionally vague because it's unclear when an abortion would be necessary to protect a woman's life and you shouldn't be able to punish doctors. And his liberal colleagues are like, you know what, Harry? That really doesn't go far enough. So they reschedule the case for reargument. And by the way, Texas Assistant Attorney General Robert Flowers replaces Floyd in that second round.

Mary Ziegler: [00:14:42] And then Blackmun famously spent some time over that summer researching the history of the abortion at the Mayo Clinic in Minnesota, where he was from. And so Roe very much is kind of steeped in Blackmun's sense of the medical history of abortion and what the medical profession thought about abortion.

Nick Capodice: [00:15:02] Was Harry Blackmun a doctor and a former life or something?

Hannah McCarthy: [00:15:05] Not even a little bit. The Mayo Clinic was a former client of [00:13:00] his, but Blackmun's research and eventually his opinion did focus on something that we still talk about today when it comes to the length of a pregnancy trimesters.

Archival: [00:15:20] How did this line of discussion start to evolve in your mind?

Archival: [00:15:25] Harry Blackmun:  Well, by really doing a lot of reading that summer and literally getting into the the history of abortion and the the attitude of organizations to it. And again, all that set forth in the opinion. I found it fascinating.

Renee Cramer: [00:15:41] And he's very interested in educating the public about the different stages of pregnancy. And our understanding of pregnancy has changed somewhat since 1973. But for the most part, we still think of pregnancy in this way we have trimesters. So the court is saying, well, what we understand is women are pregnant for three trimesters for nine months, which is really 40 weeks, which [00:14:00] is really ten months. And we know that the fetus is viable after a certain point in its development and by viable, they mean could live unassisted outside of the mother, could be born. Prematurely and survive at the time they put fetal viability at the third trimester, mark, so those last three months of pregnancy.

Archival: [00:16:33] Harry Blackmun: We came up With what it was and didn't know what the trimester system. And that seemed to have an appeal, and that was it.

Renee Cramer: [00:16:42] And what the court said was, gosh, in those last three months, the state might well have a compelling interest in regulating and limiting women's access to abortion. We have the sense that the fetus has developed almost to the point of autonomy.

Nick Capodice: [00:16:56] So Justice Blackmun is the first one who introduces us to this notion of a trimester question when it comes to abortion and Roe v. Wade.

Hannah McCarthy: [00:17:05] And that is a huge element to the decision in this case, which, in case we've forgotten, hinges on this Texas state law that prohibits abortion. And the court ultimately has to decide whether that law is constitutional. Remember, Texas is arguing in part that the fetus is a person, so they have to address that.

Mary Ziegler: [00:17:25]  So the court in Roe said, no, there is no fetal personhood because when the Constitution uses the word person, it applies pretty much only post-natal there. The court sort of canvased one of China's leading religious and medical authorities and essentially said there's no agreement on when life begins. And so if there is no agreement, neither the Supreme Court nor the state of Texas can impose one view on everybody else.

Hannah McCarthy: [00:17:54] The court says yes, agreeing with Weddington and coffee. The due process clause argument applies here. A woman has a right to privacy and choosing an abortion falls within that. Right. And also, yes, the state does have interest in protecting both the mother and the potentiality of life, but that varies from trimester to trimester. You cannot criminalize abortion during the first trimester, but things get more complicated during the second and third.

Mary Ziegler: [00:18:28] Essentially, Blackmun's sets out what is his ambition for the case, which is to try to sort of stay above the political fray and to resolve the questions in a way that feels less sort of more dispassionate. Right. I think that was his ambition. And, of course, that reads kind of tragically, I think, to people who have been following it since then, because, of course, Roe became kind of the central point of contestation. It hardly diffused the debate. It probably escalated it.

Hannah McCarthy: [00:19:01] Today we think about the abortion debate as pro-life versus pro-choice, Republican versus Democrat, conservative versus liberal, Christian versus non Christian. And the debate certainly existed prior to Roe v. Wade. But this political divide prior to the 1970s, Democrats voted against abortion about as often as Republicans after Roe v. Wade. The Catholic Church, for example, got louder about abortion. So the people who wanted access to abortion also had to get louder. Republican Richard Nixon looks at all of these loud anti-abortion Catholics and social conservatives and thinks I should appeal to them. We should be the pro family party. But even then, the Supreme Court was not a top of mind. Anti-abortion advocates wanted a constitutional amendment.

Mary Ziegler: [00:20:00] It is really hard to amend the Constitution. So eventually that strategy becomes off limits and the anti-abortion movement is sort of looking into how [00:18:00] they can kind of justify their movement going forward. And the answer that the anti-abortion movement came up with was that the point was to change the Supreme Court and see to it that Roe was overturned.

Hannah McCarthy: [00:20:22] In 1980, Ronald Reagan actually campaigned on appointing anti-abortion justices. Meanwhile, Blackmun's trimester fetal viability principle, the thing that he thought would put a pin in the abortion question, becomes essential to the post Roe v. Wade legal battles.

Renee Cramer: [00:20:40] This part of Roe is where we've had the last 40 years of litigation. How does the state have a legitimate interest in the life of the fetus in those middle months, in the time that it is developing towards viability? Or does it have a legitimate interest, a less legitimate interest in the fetus and a greater interest in the health and welfare of the mother? You will notice all of these constructions pit the woman against the fetus as though they are rivals. This is not how this is not how it had to be. This is a story law has told about women's bodies and reproduction, that when a woman is pregnant and wants an abortion, it's pitting a fetus against a woman. And when the fetus is really small, the woman wins and when the fetus is really big, the fetus wins or the state, that that's a completely constructed way of understanding abortion, health care, pregnancy, and it's outdated. So the question becomes, as we get better technology and the fetus is viable earlier, does that increase the state's interest?

Hannah McCarthy: [00:21:44] Speaking of fetal viability, I told you at the beginning of this episode that when we talk about Roe v. Wade, we're talking about Roe v. Wade and Planned Parenthood v. Casey because Planned Parenthood v. Casey, it got rid of Blackmun's trimester rule.

Archival: [00:22:03] Interviewer: What are the facts of this case and how does it relate to Roe v. Wade?

[00:22:06] Kathryn Kolbert: Well, the case is a direct challenge to Roe versus Wade. The law at issue is a Pennsylvania law that was passed in both nineteen eighty eight and again amended in nineteen eighty nine, which enact a series of roadblocks in the path of women obtaining abortions. The reason that it presents a direct challenge to Roe is these same restrictions were struck down as unconstitutional back in nineteen eighty six by the Supreme Court under Roe versus Wade. And so for the court to address whether or not they are now constitutional, that court must revisit the question and determine what are the appropriate standards to judge abortion laws.

Mary Ziegler: [00:22:47]  The court declined to overturn Roe, but got rid of the trimester framework and instead adopted what it called the undue burden test. So now, if you want to know if an abortion regulation is constitutional, the question is whether it has the purpose or effect of creating a substantial obstacle for someone seeking abortion. And that, of course, is notoriously vague. [00:21:00] And within the court and outside of the court, people have been fighting about exactly what it means ever since. But when you're really thinking about the fate of Roe going forward with this six current conservative, six justice majority, what you're really talking about is the fate of Roe and Casey, because Roe in the law has already been changed in pretty fundamental ways.

Hannah McCarthy: [00:23:34] What this means practically, is that a state now can limit access to abortion in the first trimester. Justice Harry Blackman was still on the court at this time, and this is what he said in his dissent, that, quote, The ROE framework is far more administrative and far less manipulable than the undue burden standard adopted by the joint opinion.

Nick Capodice: [00:24:00] You know, Hannah, you told us that in order to learn Roe v. [00:22:00] Wade, you have to unlearn Roe v. Wade and boy, have I done just that. But at the same time, the things we associate with Roe v. Wade, all of the debate and legislation and court cases that followed, this is what we did with Roe v. Wade that represents what we still think of Roe. There's the court case, Roe v. Wade,

Archival: [00:24:32] Jane Roe, an unmarried pregnant Girl.There's Harry Blackmun in his research.

Archival: [00:24:37] Harry Blackmun: I put a lot of myself into that opinion.

Archival: [00:24:39] here's no McCorvey in her contradictions. It was all an act.

Archival: [00:24:42] Norma McCorvey: Yeah.

Nick Capodice: [00:24:43] Nick Capodice: [00:22:34] There's Planned Parenthood v. Casey.

[00:24:45] Interviewer: [00:22:35] It was initiated by --

[00:24:47] Kathryn Kolbert: [00:22:37] That's right --

[00:24:48] Interviewer: [00:22:38] Planned Parenthood.

[00:24:50] Kathryn Kolbert: [00:22:39] Whenever...

Nick Capodice: [00:24:51] And then there is the political and social division that Roe is synonymous with. Even today.

Mary Ziegler: [00:24:59] Roe has become this incredibly powerful cultural symbol, much bigger than what the Supreme Court itself ever said, a kind of window into how we see lots of things, everything [00:23:00] from gender to the role of the courts in our democracy. And it's changed lots of things about our politics. Right. The kind of the role of the Supreme Court, the view that the Supreme Court is probably the major election issue, how social movements proceed when using tactics. And so I think if you're studying Roe, you're not just studying Roe. You're studying lots of things about the functioning of American democracy and kind of the nature of social change.

Nick Capodice: [00:25:40] I've got one last question, and I think it will help me understand what Roe actually did, how it impacts life today, because there is an enormous push to overturn it. And anti-abortion activists are optimistic that the current makeup of the Supreme Court, which is majority conservative, could mean that the decision is overturned at some point. So what would that actually do?

Hannah McCarthy: [00:26:03] All right. This is a two parter because Roe does maintain, despite Planned Parenthood [00:24:00] v. Casey, that a woman has a right to choose an abortion in certain cases. So what would an overturn mean in terms of health care? Here's Renee again.

Renee Cramer: [00:26:20] Access to reproductive health care of almost all kinds will depend on where you live. So it will be state by state women who live in California, who live in New York. They will have great access to abortion if they want it. They will have great access to prenatal care. Women who live in impoverished areas, rural areas, more conservative areas. Not only will they not have access to abortion, they also and this is documented, really well documented, that in jurisdictions with limited access to birth control, we actually see worse maternal health outcomes and that those maternal health outcomes are desperately bad for women of color. So when a state legislates against abortion, it's not as though it legislates in favor of babies and maternal health. It just gets rid of access to Planned Parenthood. And Planned Parenthood is where women get their birth control, their prenatal care, their post-natal care, their STD testing, their mammograms. So in states where Planned Parenthood is forced out, we actually have worse rates of women's health in general and no fewer abortions, just fewer safe abortions.

Hannah McCarthy: [00:27:27] So if Roe goes away, the decision about whether a woman can get an abortion in any circumstance goes to the states, which is actually an important point because of what it means for people who wish to see Roe overturned. Here's Mary with the second part of the answer to your question.

Mary Ziegler: [00:27:44] Even though I think Roe is an object lesson in the limits of the power of the Supreme Court, Harry Blackmun had planned and expected settles the abortion conflict with this opinion, which, of course, looks laughable almost 50 years later. The irony is that abortion opponents seem to believe the same thing Harry Blackmun did almost 50 years ago. Right, that if they have the perfect Supreme Court decision going the other way, that that [00:26:00] will settle the abortion debate only in their favor. And they're just as likely to be wrong as Blackmun was.

Hannah McCarthy: [00:28:14] Roe v. Wade is remembered as this sweeping landmark decision that gave a woman the green light to have an abortion if she so chooses. But when you look right at it, it's actually a case about privacy, fetal viability and state interests. It's a case with limitations, a case that some would say has lost its teeth already. Still, what we believe about Roe v. Wade is just as important as what it actually says. The mythos and misperception of the case is in large part the reason it stands as one of the most controversial rulings in history.

Hannah McCarthy: [00:29:15] This episode was produced by me and Hannah McCarthy with Nick Capodice. Erika Janik is our executive producer and our staff includes Jackie Fulton.

Nick Capodice: [00:29:27] If you like this episode and you learn something, I sure did and you want more, make sure you follow us on Twitter @Civics101pod and wherever you get your podcasts so you never miss an episode.

Hannah McCarthy: [00:29:40] Music. In this episode by Bio Unit, Ketsa, Metre, The Young Philosopher's Club and Xylo Ziko.

Nick Capodice: [00:29:47]  Civics 101 supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Right to Privacy: New Jersey v T.L.O.

Today we travel to the spring of 1980, where the presidential campaigns of Reagan and Carter take a back seat to an act of disobedience committed by a 14-year-old girl in Piscataway, New Jersey. The highest court in the land has to decide, how are your 4th Amendment protections different when you happen to be a student?

This episode features the voices of Professor Tracey Maclin from Boston University School of Law and Professor Sarah Seo from Columbia Law School.

Click here to download a Graphic Organizer for students to take notes on while listening to the episode.

Episode Resources

Search Me from the American Bar Association: Line students up and ask them to step forward or backward depending on whether they think a hypothetical search/seizure is lawful or not.

Episode Segments

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TLO full.mp3: Audio automatically transcribed by Sonix

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

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

Nick Capodice:
Did you did you ever get in trouble at school for anything?

Hannah McCarthy:
Exactly One incident it's not worth...

Nick Capodice:
Just tell me what it was.

Hannah McCarthy:
I knew a girl had the wrong answer. It was like an outloud test. I indicated to her that she had the wrong answer. And the teacher said that Hannah McCarthy ruined the day for everybody.

Nick Capodice:
Oh, my God.

Hannah McCarthy:
I think I was in second grade.

Nick Capodice:
I hacked into...I knew how to use DOS, so I hacked in to find out the teacher passwords for the kids grades.

Hannah McCarthy:
I can't believe you did that

Nick Capodice:
Yeah. I feel terrible about it.

Nick Capodice:
Every episode we work on gives me another reason to fall in love with Supreme Court cases. And today it's that a relatively minor offense can rise through the court system to achieve the stature of landmark decision. And the story of this case starts in spring 1980.

Nick Capodice:
Empire Strikes Back is about to hit theaters, Queen is at the top of the charts with crazy little thing called love. Former Governor Ronald Reagan is campaigning against Jimmy Carter using the fresh new slogan,

"Ronald Reagan for President, Let's make America great again."

Nick Capodice:
And in Piscataway, New Jersey, 14 year old girl broke a school rule and started her journey to the highest court in the land.

Hannah McCarthy:
She broke school rule and ended up in the Supreme Court. What was she doing?

Nick Capodice:
Oh, I'll tell you, Hannah.

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

Hannah McCarthy:
I'm Hannah McCarthy,

Nick Capodice:
And we are looking at another Supreme Court case dealing with our right to privacy. Today, The case that defines your Fourth Amendment protections as a student, New Jersey v TLO, 1985.

Hannah McCarthy:
First, I have to ask you about the name of this case. Who is TLO?

Nick Capodice:
TLO is the respondent in this case. She was a minor at the time, so the court just used her initials. She was a freshman at Piscataway High School in New Jersey.

Tracey Maclin:
She was caught smoking in the girls room. Remember Barnsville? What is it, that song, Smoking in the Boys room?

Nick Capodice:
This is Tracey Maclin. He's a professor at Boston University School of Law. And when I called him, neither of us could remember the name of the band. It was a Brownsville Station, by the way, later covered by Motley Crue, and the song, I sure do know, smoking in the boys room.

Nick Capodice:
And I bring this up because I have to point out that smoking was allowed at this school at the time, just not in the bathroom. This is important later. But TLO and another girl smoked in the bathroom just the same.

Hannah McCarthy:
And they got caught.

Nick Capodice:
They were they were caught by a teacher and they were marched to the office of Assistant Vice Principal Choplick.

Tracey Maclin:
And he asked her whether she had been smoking and she denied it. And she said she never even, she didn't even smoke. And so at that point, he he grabbed her purse. Opened it up and saw a package of cigarettes.

Hannah McCarthy:
All right, stop. This is the moment where I can see the Fourth Amendment getting involved. That's the amendment that protects us against unreasonable search and seizure. Did the assistant vice principal have the authority to search her purse?

Nick Capodice:
This is the crucial moment in the case. And everything rests on that question because it's not just about finding cigarettes. It's what he saw after he opened the purse and took the cigarettes out.

Tracey Maclin:
He found some rolling papers, a note that talked about the people that owed money to TLO, and a small amount of marijuana

you left out one item in the pocketbook, the 40 bucks.

I beg your pardon?

You left out one item in the pocketbook. Which was forty dollars in one dollar bills which signified that she was selling it.

Yes, Your Honor.

Nick Capodice:
That was Justice Thurgood Marshall, by the way, questioning the advocate for New Jersey in the case. That combination of rolling papers, marijuana, a book of names of people who owed TLO money and a bunch of small bills was together enough evidence to get her sent to the police station with her mother, where she confessed. Yes, she had been selling marijuana in school and she was sentenced by the court to a year of probation.

Sarah Seo:
What's interesting about this case is that it first comes up with a question that is ultimately not decided in the decision.

Nick Capodice:
This is Sarah Seo. She teaches at Columbia Law School.

Sarah Seo:
The school admitted that the Fourth Amendment was violated and the question was, does the exclusionary rule apply?

Hannah McCarthy:
It starts as an exclusionary rule case.

Nick Capodice:
Yeah, we talked about the exclusionary rule in our Mapp v Ohio episode. But Professor Seo gave us a quick recap.

Sarah Seo:
And this exclusionary rule is if the state official violates a constitutional right to get that evidence, then that evidence must be excluded or cannot be used against the individual in a criminal proceeding. And so the issue was, could the evidence of the marijuana be used in the juvenile proceeding against TLO?

Hannah McCarthy:
If the initial search for cigarettes by Choplick was unconstitutional, then all other evidence he found after that search is not admissible as evidence.

Nick Capodice:
Right. Which started with rolling papers.

Tracey Maclin:
Now once he sees the cigarettes, then the rolling papers became what's known as plain view. That's a term of art for Fourth Amendment purposes. In other words, they were no longer private.

Nick Capodice:
Plain view is one of the exceptions to the exclusionary rule. If you can see evidence of a crime, if it's out in public, you can use it in court. But it only was in plain view in the first place because Choplick opened the purse. So TLO argued that the pot and the rolling papers and the money and even her confession at the police station can't be used in court because it is fruit from a poisonous tree.

Hannah McCarthy:
Also, you said smoking was allowed in school, right?

Nick Capodice:
It was in designated areas

Hannah McCarthy:
So her having cigarettes in her purse wasn't even breaking a school rule.

Nick Capodice:
It wasn't. And Choplick said he only searched the purse because even though she was caught smoking, TLO lied and said she didn't even smoke at all.

Hannah McCarthy:
So Sarah said that it came to the court as an exclusionary rule case, but it changed into something else. What did it become about?

Nick Capodice:
The court doesn't even address the exclusionary rule in their decision, but instead it becomes a broad Fourth Amendment case. On a base level are your protections against unlawful search and seizure different if you're a student in a public school setting?

OK, how did the court rule? Had TLO's Fourth Amendment rights been violated?

So in New Jersey v TLO the court rules in favor of... New Jersey.

Tracey Maclin:
I believe it was six to three decision they said no, there's no violation of the 4th amendment. Choplick's actions were reasonable within the meaning of the Fourth Amendment because while students have some Fourth Amendment rights, they don't have the same rights that you and I have. In other words, they have diminished protections in schools.

Sarah Seo:
The court held a few things. One, it held that the warrant requirement of the Fourth Amendment doesn't apply in the school context and to that the probable cause standard also doesn't apply in the school context. What it held was that a school official can conduct a search if at the time of the search, the official has reasonable suspicion.

Hannah McCarthy:
The ruling states that a teacher only needs reasonable suspicion to search a student, not probable cause. So I'm going to need both of those terms defined.

Tracey Maclin:
That's a fair question. The problem with any answer you get is that the Supreme Court itself has never defined what probable cause means, and there's a reason for that. But the best answer for your audience is that probable cause means a substantial chance that the government, the police, the FBI, there's a substantial chance, a fair probability that you'll find evidence of a crime.

Nick Capodice:
And this ruling stands today. You do have an expectation of privacy in school, but teachers and school officials only need reasonable suspicion to search You not probable cause. Now, reasonable suspicion is if you have a reasonable grounds for suspecting that your search will find evidence that a student violated a specific school rule, then that search is allowed.

Hannah McCarthy:
I come back to the same thing I always come to when we talk about Supreme Court cases, I always want to know what were the reverberations? How does it affect student privacy protections today?

Sarah Seo:
What's important to note about this case is starting in the mid 1980s, the Supreme Court is starting to chip away at the Fourth Amendment by creating these exceptions to the exclusionary rule. The year before this case was decided, the Supreme Court for the first time created an exception to the exclusionary rule. It's called the Leon Good Faith exception to the exclusionary rule, where if a police officer in good faith relies on an arrest warrant but that arrest warrant turns out to be faulty, then the exclusionary rule will not apply.

Sarah Seo:
So this case comes up the next year asking does exclusionary rule apply in the school context or can there be an exception? And the court, of course, held, holds that there's actually another exception to the warrant requirement that is in the school context.

Sarah Seo:
The second thing I want to point out is this is the 1980s. We're in the middle of the war on drugs. Nancy Reagan is encouraging students to just say no,

Say no to drugs, and say yes to life.

Sarah Seo:
And drugs in schools becomes a huge concern. And so the court is addressing that concern by with this decision, by allowing school administrators and school officials to conduct searches in order to create drug free schools.

Sarah Seo:
So after this case came down, a lot of school administrators relied on this case to start doing strip searches of students to look for drugs.

State police are investigating after staff at a Binghamton middle school were accused of strip searching four 12 year old girls. Governor Cuomo directed troopers to launch an investigation.

Nick Capodice:
That news clip is from 2019. A complaint was filed on behalf of four 12 year old students in Binghamton, New York, who were searched physically by the school nurse after they were seen talking and laughing in the hallway by school officials who described them as being, quote, hyper and giddy.

Hannah McCarthy:
Whenever we look at Supreme Court cases that deal with students while at school, I always think of Tinker v. Des Moines or like Hazelwood v. Kuhlmeier

Nick Capodice:
yeah, cases about students' First Amendment rights.

Hannah McCarthy:
The court always wrestles with how things are different when we're talking about being in a school. And balancing a student's rights with maintaining a safe and undisrupted space to learn sounds tricky.

Nick Capodice:
If there's one thing I take away from the TLO decision, it's that every case afterward that dealt with reasonable suspicion and a search at school, like, can a teacher demand your phone or social media password if they suspect you of bullying? Can they search your locker if they think you have a weapon, can they pat you down in the hallway? It all depends on a very specific context. And the fifty four words that make up that Fourth Amendment are being reinterpreted every single day.

Nick Capodice:
That's it for the saga of TLO. You can listen to all of our other right to privacy episodes and a whole lot more on our website, Civics101podcast.org.

Hannah McCarthy:
And while you're there, if you want to learn about all of the civics trivia nuggets that we cannot cram into our episodes, subscribe to our newsletter, Extra Credit.

Nick Capodice:
And see what the civics team is doing all the time by following us on Facebook or Twitter. Just come and say hi, for heaven's sake @civics101pod. Today's episode is produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy:
Oh, you're welcome, Nick. Our staff includes Jackie Fulton. Erika Janik knows that vapin' ain't allowed in the Corn Maze.

Nick Capodice:
Music in this episode by Jahzzar, Blue Dot Sessions, Wildlight, Matt Oakley, Loo Loco, The Grand Affair and the Musical Toast of Corpus Christi, Chris Zabriskie.

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

TLO full.mp3

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

Nick Capodice: [00:00:04] Did you did you ever get in trouble at school for anything?

Hannah McCarthy: [00:00:07] Exactly One incident it's not worth...

Nick Capodice: [00:00:10] Just tell me what it was.

Hannah McCarthy: [00:00:11] I knew a girl had the wrong answer. It was like an outloud test. I indicated to her that she had the wrong answer. And the teacher said that Hannah McCarthy ruined the day for everybody.

Nick Capodice: [00:00:23] Oh, my God.

Hannah McCarthy: [00:00:23] I think I was in second grade.

Nick Capodice: [00:00:25] I hacked into...I knew how to use DOS, so I hacked in to find out the teacher passwords for the kids grades.

Hannah McCarthy: [00:00:32] I can't believe you did that

Nick Capodice: [00:00:33] Yeah. I feel terrible about it.

Nick Capodice: [00:00:36] Every episode we work on gives me another reason to fall in love with Supreme Court cases. And today it's that a relatively minor offense can rise through the court system to achieve the stature of landmark decision. And the story of this case starts in spring 1980.

Nick Capodice: [00:00:56] Empire Strikes Back is about to hit theaters, Queen is [00:01:00] at the top of the charts with crazy little thing called love. Former Governor Ronald Reagan is campaigning against Jimmy Carter using the fresh new slogan,

[00:01:10] "Ronald Reagan for President, Let's make America great again."

Nick Capodice: [00:01:14] And in Piscataway, New Jersey, 14 year old girl broke a school rule and started her journey to the highest court in the land.

Hannah McCarthy: [00:01:25] She broke school rule and ended up in the Supreme Court. What was she doing?

Nick Capodice: [00:01:30] Oh, I'll tell you, Hannah.

Nick Capodice: [00:01:37] You're listening to Civics 101, I'm Nick Capodice.

Hannah McCarthy: [00:01:39] I'm Hannah McCarthy,

Nick Capodice: [00:01:40] And we are looking at another Supreme Court case dealing with our right to privacy. Today, The case that defines your Fourth Amendment protections as a student, New Jersey v TLO, 1985.

Hannah McCarthy: [00:01:52] First, I have to ask you about the name of this case. Who is TLO?

Nick Capodice: [00:01:56] TLO is the respondent in this case. She was a minor at the time, [00:02:00] so the court just used her initials. She was a freshman at Piscataway High School in New Jersey.

Tracey Maclin: [00:02:06] She was caught smoking in the girls room. Remember Barnsville? What is it, that song, Smoking in the Boys room?

Nick Capodice: [00:02:14] This is Tracey Maclin. He's a professor at Boston University School of Law. And when I called him, neither of us could remember the name of the band. It was a Brownsville Station, by the way, later covered by Motley Crue, and the song, I sure do know, smoking in the boys room.

[00:02:29]

Nick Capodice: [00:02:33] And I bring this up because I have to point out that smoking was allowed at this school at the time, just not in the bathroom. This is important later. But TLO and another girl smoked in the bathroom just the same.

Hannah McCarthy: [00:02:47] And they got caught.

Nick Capodice: [00:02:48] They were they were caught by a teacher and they were marched to the office of Assistant Vice Principal Choplick.

Tracey Maclin: [00:02:53] And he asked her whether she had been smoking and she denied it. And she said she never even, she didn't even smoke. [00:03:00]And so at that point, he he grabbed her purse. Opened it up and saw a package of cigarettes.

Hannah McCarthy: [00:03:11] All right, stop. This is the moment where I can see the Fourth Amendment getting involved. That's the amendment that protects us against unreasonable search and seizure. Did the assistant vice principal have the authority to search her purse?

Nick Capodice: [00:03:25] This is the crucial moment in the case. And everything rests on that question because it's not just about finding cigarettes. It's what he saw after he opened the purse and took the cigarettes out.

Tracey Maclin: [00:03:35] He found some rolling papers, a note that talked about the people that owed money to TLO, and a small amount of marijuana

[00:03:48] you left out one item in the pocketbook, the 40 bucks.

[00:03:52] I beg your pardon?

[00:03:52] You left out one item in the pocketbook. Which was forty dollars in one dollar bills which signified that she was [00:04:00] selling it.

[00:04:01] Yes, Your Honor.

Nick Capodice: [00:04:02] That was Justice Thurgood Marshall, by the way, questioning the advocate for New Jersey in the case. That combination of rolling papers, marijuana, a book of names of people who owed TLO money and a bunch of small bills was together enough evidence to get her sent to the police station with her mother, where she confessed. Yes, she had been selling marijuana in school and she was sentenced by the court to a year of probation.

Sarah Seo: [00:04:27] What's interesting about this case is that it first comes up with a question that is ultimately not decided in the decision.

Nick Capodice: [00:04:35] This is Sarah Seo. She teaches at Columbia Law School.

Sarah Seo: [00:04:38] The school admitted that the Fourth Amendment was violated and the question was, does the exclusionary rule apply?

Hannah McCarthy: [00:04:48] It starts as an exclusionary rule case.

Nick Capodice: [00:04:51] Yeah, we talked about the exclusionary rule in our Mapp v Ohio episode. But Professor Seo gave us a quick recap.

Sarah Seo: [00:04:56] And this exclusionary rule is if the [00:05:00] state official violates a constitutional right to get that evidence, then that evidence must be excluded or cannot be used against the individual in a criminal proceeding. And so the issue was, could the evidence of the marijuana be used in the juvenile proceeding against TLO?

Hannah McCarthy: [00:05:21] If the initial search for cigarettes by Choplick was unconstitutional, then all other evidence he found after that search is not admissible as evidence.

Nick Capodice: [00:05:30] Right. Which started with rolling papers.

Tracey Maclin: [00:05:35] Now once he sees the cigarettes, then the rolling papers became what's known as plain view. That's a term of art for Fourth Amendment purposes. In other words, they were no longer private.

Nick Capodice: [00:05:44] Plain view is one of the exceptions to the exclusionary rule. If you can see evidence of a crime, if it's out in public, you can use it in court. But it only was in plain view in the first place because Choplick opened the purse. So TLO argued that the pot and the rolling [00:06:00] papers and the money and even her confession at the police station can't be used in court because it is fruit from a poisonous tree.

Hannah McCarthy: [00:06:07] Also, you said smoking was allowed in school, right?

Nick Capodice: [00:06:10] It was in designated areas

Hannah McCarthy: [00:06:12] So her having cigarettes in her purse wasn't even breaking a school rule.

Nick Capodice: [00:06:15] It wasn't. And Choplick said he only searched the purse because even though she was caught smoking, TLO lied and said she didn't even smoke at all.

Hannah McCarthy: [00:06:23] So Sarah said that it came to the court as an exclusionary rule case, but it changed into something else. What did it become about?

Nick Capodice: [00:06:31] The court doesn't even address the exclusionary rule in their decision, but instead it becomes a broad Fourth Amendment case. On a base level are your protections against unlawful search and seizure different if you're a student in a public school setting?

[00:06:48] OK, how did the court rule? Had TLO's Fourth Amendment rights been violated?

[00:06:53] So in New Jersey v TLO the court rules in favor of... New Jersey.

Tracey Maclin: [00:06:59] I believe [00:07:00] it was six to three decision they said no, there's no violation of the 4th amendment. Choplick's actions were reasonable within the meaning of the Fourth Amendment because while students have some Fourth Amendment rights, they don't have the same rights that you and I have. In other words, they have diminished protections in schools.

Sarah Seo: [00:07:22] The court held a few things. One, it held that the warrant requirement of the Fourth Amendment doesn't apply in the school context and to that the probable cause standard also doesn't apply in the school context. What it held was that a school official can conduct a search if at the time of the search, the official has reasonable suspicion.

Hannah McCarthy: [00:07:46] The ruling states that a teacher only needs reasonable suspicion to search a student, not probable cause. So I'm going to need both of those terms defined.

Tracey Maclin: [00:07:54] That's a fair question. The problem with any answer you get is that the Supreme [00:08:00] Court itself has never defined what probable cause means, and there's a reason for that. But the best answer for your audience is that probable cause means a substantial chance that the government, the police, the FBI, there's a substantial chance, a fair probability that you'll find evidence of a crime.

Nick Capodice: [00:08:22] And this ruling stands today. You do have an expectation of privacy in school, but teachers and school officials only need reasonable suspicion to search You not probable cause. Now, reasonable suspicion is if you have a reasonable grounds for suspecting that your search will find evidence that a student violated a specific school rule, then that search is allowed.

Hannah McCarthy: [00:08:45] I come back to the same thing I always come to when we talk about Supreme Court cases, I always want to know what were the reverberations? How does it affect student privacy protections today?

Sarah Seo: [00:08:58] What's important to note about [00:09:00] this case is starting in the mid 1980s, the Supreme Court is starting to chip away at the Fourth Amendment by creating these exceptions to the exclusionary rule. The year before this case was decided, the Supreme Court for the first time created an exception to the exclusionary rule. It's called the Leon Good Faith exception to the exclusionary rule, where if a police officer in good faith relies on an arrest warrant but that arrest warrant turns out to be faulty, then the exclusionary rule will not apply.

Sarah Seo: [00:09:31] So this case comes up the next year asking does exclusionary rule apply in the school context or can there be an exception? And the court, of course, held, holds that there's actually another exception to the warrant requirement that is in the school context.

Sarah Seo: [00:09:47] The second thing I want to point out is this is the 1980s. We're in the middle of the war on drugs. Nancy Reagan is encouraging students to just say no,

[00:10:00] Say [00:10:00] no to drugs, and say yes to life.

Sarah Seo: [00:10:06] And drugs in schools becomes a huge concern. And so the court is addressing that concern by with this decision, by allowing school administrators and school officials to conduct searches in order to create drug free schools.

Sarah Seo: [00:10:23] So after this case came down, a lot of school administrators relied on this case to start doing strip searches of students to look for drugs.

[00:10:31] State police are investigating after staff at a Binghamton middle school were accused of strip searching four 12 year old girls. Governor Cuomo directed troopers to launch an investigation.

Nick Capodice: [00:10:41] That news clip is from 2019. A complaint was filed on behalf of four 12 year old students in Binghamton, New York, who were searched physically by the school nurse after they were seen talking and laughing in the hallway by school officials who described them as being, quote, hyper and giddy.

Hannah McCarthy: [00:10:58] Whenever we look at Supreme Court cases [00:11:00] that deal with students while at school, I always think of Tinker v. Des Moines or like Hazelwood v. Kuhlmeier

Nick Capodice: [00:11:06] yeah, cases about students' First Amendment rights.

Hannah McCarthy: [00:11:08] The court always wrestles with how things are different when we're talking about being in a school. And balancing a student's rights with maintaining a safe and undisrupted space to learn sounds tricky.

Nick Capodice: [00:11:21] If there's one thing I take away from the TLO decision, it's that every case afterward that dealt with reasonable suspicion and a search at school, like, can a teacher demand your phone or social media password if they suspect you of bullying? Can they search your locker if they think you have a weapon, can they pat you down in the hallway? It all depends on a very specific context. And the fifty four words that make up that Fourth Amendment are being reinterpreted every single day.

Nick Capodice: [00:11:54] That's it for the saga of TLO. You can listen to all of our other right to privacy episodes and a whole lot more [00:12:00] on our website, Civics101podcast.org.

Hannah McCarthy: [00:12:03] And while you're there, if you want to learn about all of the civics trivia nuggets that we cannot cram into our episodes, subscribe to our newsletter, Extra Credit.

Nick Capodice: [00:12:11] And see what the civics team is doing all the time by following us on Facebook or Twitter. Just come and say hi, for heaven's sake @civics101pod. Today's episode is produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy: [00:12:24] Oh, you're welcome, Nick. Our staff includes Jackie Fulton. Erika Janik knows that vapin' ain't allowed in the Corn Maze.

Nick Capodice: [00:12:30] Music in this episode by Jahzzar, Blue Dot Sessions, Wildlight, Matt Oakley, Loo Loco, The Grand Affair and the Musical Toast of Corpus Christi, Chris Zabriskie.

Hannah McCarthy: [00:12:40] Civics 101 is made possible in part by the Corporation for Public Broadcasting and is a production of NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

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.

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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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Made possible in part by the Corporation for Public Broadcasting.

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

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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.

---

Made possible in part by the Corporation for Public Broadcasting.

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.

---

Made possible in part by the Corporation for Public Broadcasting.

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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Made possible in part by the Corporation for Public Broadcasting.

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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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.

---

Made possible in part by the Corporation for Public Broadcasting.

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.

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.

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Made possible in part by the Corporation for Public Broadcasting.

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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WhyTakingSoLong_PRX.mp3 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors.

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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Made possible in part by the Corporation for Public Broadcasting.

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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