Gerrymandering

The 2020 census has concluded, which means it's time for states to redraw their congressional districts. Today we're exploring partisan gerrymandering, the act of drawing those maps to benefit one party over the other. In this episode you'll learn about stacking, cracking, packing, and many other ways politicians choose voters (instead of the other way round). 

Taking us through the story of Gerry's salamander and beyond are professors Justin Levitt, Robin Best, and Nancy Miller.

Click here for a graphic organizer for students to take notes upon while they listen to the episode.

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Nick Capodice:
Ok. Ok. Yeah. Ok, hold on. Ok. Take a look at this. Ok.

Hannah McCarthy:
It's like a Rorschach test.

Nick Capodice:
Ok, so that's Maryland's Third District, and it's called it's nicknamed the praying mantis. Check this one out.

Hannah McCarthy:
There's a long thing that could be like a trunk that looks like it might be like squirting water out of it.

Nick Capodice:
That's Texas's Thirty Fifth District, and it's nicknamed the Upside-Down Elephant.

Hannah McCarthy:
Is it Rorschach or Rorschach?

Nick Capodice:
Rorschach.

Hannah McCarthy:
Good I got it right.

Nick Capodice:
There's an old joke like, Who is this guy Rorschach? And Why did he draw so many pictures of my parents fighting?

Hannah McCarthy:
Yeah, that's funny. This one looks like someone like yelling at someone else and kicking their butt.

Nick Capodice:
That is Pennsylvania's 7th District. It doesn't exist anymore, and it's got my favorite nickname, which is Goofy kicking Donald Duck.

Hannah McCarthy:
So these are congressional districts, right? Why do they look so weird?

Nick Capodice:
Ok, so you know, every two years, a bunch of Americans go into a voting booth and they pick someone, right?

Hannah McCarthy:
Yes, voting.

Nick Capodice:
What these are extreme instances of are not citizens picking representatives. But representatives picking them. You're listening to Civics 101, I'm Nick Capodice,

Hannah McCarthy:
I'm Hannah McCarthy,

Nick Capodice:
And today we are talking about gerrymandering, the political maneuver of drawing a map to divide voters so on Election Day, one party is more likely to win. To start off, if you live in the United States, you live in a congressional district. Your physical address determines who you can vote for in an election. And even if you live in a state that only has one district, your address still matters because it determines who you can vote for in your state legislature.

Hannah McCarthy:
And I know that as we speak November 2021, these maps are being drawn, right?

Nick Capodice:
Yes, they are, because we draw our state and federal congressional districts after each census.

Hannah McCarthy:
I have heard news stories from multiple states about these new maps. Nick, people care so deeply about them, and I think that that's in part because we are going to be stuck with them for 10 years.

Nick Capodice:
And because of that, Hannah, gerrymandering is always a current events issue.

Justin Levitt:
Well it's no surprise if I could guarantee my job in the job of my friends and guarantee that I could punish the people I don't like. I'd be mighty tempted to use that power, no matter what field that we're in.

Nick Capodice:
This is Justin Levitt. He's a professor of law at Loyola Marymount University.

Justin Levitt:
Legislators aren't any different. Legislators. They're just like us. And since the dawn of the redistricting process, legislators have used the power to draw the lines to reward their friends and punish their enemies.

Hannah McCarthy:
This is interesting. I tend to think of gerrymandering as this modern day political practice that involves computers and data analysis and a lot of critique. But it sounds like Justin is saying that this is something that we have always done.

Nick Capodice:
Always, since the very beginning before we even had a word for it. Some scholars have suggested that Patrick Henry, Mr. Give me liberty or give me death, almost gerrymandered James Madison out of Congress in 1788 by redrawing Virginia's maps. But I'm going to jump ahead to the creation of the term, which is in 1812, and I'm going to start with the fact that we're probably saying it wrong.

Nancy Miller:
You reached out to your nana to see if there's anything you wanted me to to address to the congressman when he comes out next.

Yes, she had a few things. She said he should know that his district was the first to be gerrymandered. And I said, Yeah, I know. Yeah,

Nick Capodice:
That was John Mulaney on Late Night with Seth Meyers and his grandmother's right. The term comes from that signer of the Declaration of Independence, Massachusetts Gov. Elbridge Gerry. Gerry was a Democratic Republican at the time, and he signed a redistricting act that cut up the districts of Essex County so it would be much harder for the other party, the Federalists, to get any seats in the Legislature. And the map of these districts was such a long, curved shape that a cartoonist put wings and a reptilian head on it and published it in the Boston Gazette with the name Gerrymander. It's a portmanteau word of Gerry and Salamander.

Hannah McCarthy:
Now I'm not a herpetologist here, but I don't believe that salamanders have wings.

Nick Capodice:
That's fair. I think it comes from when we used to use the word salamander to just mean dragon.

Hannah McCarthy:
Was that 1812 gerrymander successful?

Nick Capodice:
Lord Yes. In the following election, Federalists won only a third of seats in the state legislature, even though they had a majority of the popular vote.

Hannah McCarthy:
But how does that work? How do these maps hold so much power?

Nick Capodice:
Well, to understand gerrymandering, we have to first understand the process that we're going through now, congressional redistricting. And Justin told me that redistricting is one of the most important facets of our democracy because whatever you care about Hannah, whether it's like national security or universal health care or a woman's right to choose or gun rights, whatever, it all comes down to our election process, we do things through the representatives that we elect.

Justin Levitt:
And if you care about the election process, then you care about redistricting. It's the infrastructure of infrastructure. It's how we do absolutely everything else because it makes sure that some voices get lifted up in choosing who those representatives will be that decide what kind of a world we're going to be living together.

Nancy Miller:
Redistricting is something we have to do, or it's it's good that we have to do it every 10 years now since the 1960s, because people move around.

Nick Capodice:
This is Professor Nancy Miller. She teaches political science at the University of Dayton.

Nancy Miller:
From a congressional standpoint, we've decided that the House of Representatives is going to be 435 people, and I don't think there's any appetite to make that larger right now. And so people move from the northeast to the South or the Midwest to the South. Sometimes they move from the south up to the Pacific Northwest. And in order to keep with the principle of one man, one vote, some states have to lose some seats and some states will gain some seats. And if you're going to change the number of seats in a state, then you, of course, you've got to redraw the lines.

Nick Capodice:
And if we're keeping the house at four hundred and thirty five members, it's only fair that each of those members represents about the same number of people.

Nancy Miller:
So what would commonly happen in particular in state legislatures, but also in congressional delegations? Oftentimes, they would just map districts on the counties like, especially at the state legislative level. And as cities grew, there was a lot of what we would call malapportionment.

Hannah McCarthy:
It's called malapportionment,

Nick Capodice:
Malapportionment. Apportionment that is unfair. So you'd have a city of a million people represented by one person and then a lot of rural communities of like 20000 people with one representative each for those. So if you lived in the city, your vote meant a lot less. And there were fewer people in Congress standing up for city issues.

Nancy Miller:
So rural rural interests were always dominating the Legislature. Oftentimes to the detriment of urban populations, which couldn't get some of the services or the infrastructure things they needed because it wasn't a priority for rural legislators

Nick Capodice:
On the national level there are four hundred and thirty five congressional districts in the United States, and each one represents about seven hundred thousand people. There are some exceptions, though.

Hannah McCarthy:
For example, I'm thinking of those states that have one congressional district and a smaller population than 700000, like Wyoming.

Nick Capodice:
Yeah, Vermont. Those outliers aside, since the 1960s, every 10 years after each federal census states redraw their federal congressional districts and their state congressional districts to make sure that malapportionment doesn't occur. And this process is when we get to the world of the praying mantis, the upside-down elephant, goofy kicking Donald Duck.

Robin Best:
Partisan gerrymandering, of course, doesn't have to happen.

Nick Capodice:
This is Professor Robin Best, who teaches political science at Binghamton University.

Robin Best:
But the redistricting process that happens every 10 years gives the people drawing these lines the opportunity to draw those lines in a way that might advantage one political party and disadvantage the other political party. After the last round of redistricting in 2010, we saw a good number of people drawing those district lines actually do so to try to benefit one party at the expense of the other.

Hannah McCarthy:
And that is what separates redistricting from gerrymandering. Right. Redistricting is a necessary democratic process, but gerrymandering is done to favor one party.

Nick Capodice:
Yes, and there are three tried and true methods of gerrymandering packing, cracking and stacking, and we're going to cover all three. First up, packing

Robin Best:
When you pack partisans, you cram as many of them as you possibly can into a few districts as possible. So for example, if you are Republicans and you want to advantage your own party when you're drawing district lines, you would try to cram as many Democratic voters into a few districts as possible. And you kind of give them those districts, right? So say you have 10 districts that you're trying to create. You put as many Democrats as you can into two of them where they constitute like a ninety five percent majority. You give them those two districts and then you spread out your Republicans across the remaining eight districts so that you receive a majority of the vote in each of those districts.

Nick Capodice:
And cracking is the opposite. Let's say you're a Democrat-controlled legislature and you want to draw a map that favors your party, the Democrats. So what you do is you take a Republican district and you crack it up, putting those Republican voters into nearby Democrat dominant districts. So instead of four super blue districts and one Super Red District, you have five barely blue districts, five Democratic elected officials.

Hannah McCarthy:
Ok. It seems to me, then, that the most dastardly gerrymander, the perfect crime, if you will, would be to crack districts so deftly that your party wins every district by the slimmest margin.

Nick Capodice:
And that is a map, just like goofy kicking Donald Duck. Pennsylvania's 7th District, it so obviously cracked several urban neighborhoods into outlying rural areas that there was a public outcry and a lawsuit. Party leaders couldn't agree how to fix it, and it fell to the Pennsylvania Supreme Court to redraw the district more equitably in 2018.

Hannah McCarthy:
All right. I got packing. I got cracking. But stacking is one that I have never heard of

Nick Capodice:
Yeah, stacking is, in my opinion, the most nefarious. When you stack a congressional district, you draw the lines to create a perceived majority in it. A majority of people who are either minorities and a lower income bracket or less educated three demographics that statistically due to various circumstances, have a much lower voter turnout than educated, wealthy white voters.

Hannah McCarthy:
So it's kind of like misdirection. You grant a clear majority presence in a district. The official, elected in November, is not the one who represents the majority of people who live there.

Nick Capodice:
Absolutely. And there are other methods of gerrymandering that don't get talked about as much. I just want to give them a brief mention here. There's prison-based gerrymandering where a district with a large incarcerated population which cannot vote counts those citizens as part of that district's population instead of their hometown, giving that district more representative power. And finally, there's sweetheart gerrymandering. That's where incumbents from both parties reach a tacit handshake, an agreement to draw the lines so everybody just gets to keep their job.

Hannah McCarthy:
Who specifically is in charge of physically drawing these maps?

Nick Capodice:
All right, here's Robin again.

Robin Best:
Yes, that is actually probably the most important question. So in the majority of states, the state legislatures will draw the lines and then often the maps that they create have to be approved by the governor in a much smaller proportion of states. The lines are drawn by redistricting commissions, some of which are independent, some of which are political, some of which are bipartisan. There are lots of different variations of those, but in the vast majority of states, they're still drawn by state legislatures.

Nick Capodice:
And those variations are interesting. Some states have independent commissions that draw the maps, and each commission is completely different. California's redistricting commission comprises five Democrats, five Republicans and four individuals unaffiliated with any party drawn by a lottery. But as of right now, maps are drawn by the state legislature in thirty three states.

Robin Best:
And as you can imagine, you know, the state legislatures are not entirely neutral observers of elections. So we actually see we tend to see the more egregious gerrymanders occur as a result of the lines that are drawn by state legislatures with approval of the governor. So when one party, for example, controls all three branches of the state government, we call that a trifecta. Under those trifecta, we are likely to see the more egregious gerrymander to take place. If there is divided control, so a legislature of one party and a governor from another party, we're less likely to see those types of kind of egregious partisan gerrymanders.

Hannah McCarthy:
As to the result of those different gerrymanders, I do happen to know that they are tremendously effective. Most significantly, I know that in 2012, Democrats received over a million more votes for the House, but the GOP won a thirty three seat majority. Which brings me to a bigger question. Is this legal?

Nick Capodice:
A good question, and one that I'm going to get to right after the break.

Hannah McCarthy:
Ok, but before that, I want to tell listeners that they can read all about the deep dives that are too full of ephemera and trivial tidbits to make it into our show in our free, biweekly newsletter. It's called extra credit. You can subscribe at our website, civics101podcast.org

Nick Capodice:
And quickly, speaking of reading, Hannah and I took the stuff we've learned from making three years worth of episodes and compressed it into a book. It's called A User's Guide to Democracy, How America Works. It's illustrated by the wonderful New Yorker cartoonist Tom Toro. You can get it wherever you get your books.

Nick Capodice:
Ok, we're back, where were we?

Hannah McCarthy:
You were about to answer the question of whether all of this is legal.

Nick Capodice:
Ok. Here's Nancy Miller again.

Nancy Miller:
So there were two cases in the nineteen sixties Reynolds V. Sims and Baker V. Carr. So everybody's probably mostly familiar with Baker V. Carr, because that's the congressional one. Reynolds V. Sims handled state legislative districts, so it's basically the same principle that the districts you draw have to allow for roughly equal representation.

Nick Capodice:
Both of these cases ruled that redistricting is a justiciable issue. It's a funny word. Justiciable. Justiciable means it's something that can be addressed by the Supreme Court or the State Supreme Court. And those two decisions dealt with equal numbers of people in districts that malapportionment thing we talked about earlier. These are the cases that ruled we are obligated to redraw our maps after every census, and you can't draw a district so that it has significantly fewer citizens than another.

Hannah McCarthy:
Did we redraw them at a different time prior to these court cases?

Nancy Miller:
Prior to the nineteen sixties, the districts were just redrawn whenever the state felt like it. Pretty much so. There was a whole, yeah. So there was a whole lot of malapportionment.

Nick Capodice:
But while the Supreme Court ruled that in equal numbers of people in a state and federal districts is unconstitutional when it comes to the issue of partisan gerrymandering, I'm talking, cracking, packing and stacking. That is something else entirely.

Chief Justice Roberts:
And others set forth, in our opinion. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. We vacate the judgments below and remand with instructions to dismiss...

Nick Capodice:
That was Chief Justice John Roberts announcing the 2019 decision in Rucho V. Common Cause. It was a five to four decision which stated that partisan gerrymandering claims are not justifiable. The Supreme Court cannot rule on questions of a political nature, and it's no surprise that John Roberts wrote the opinion because a year earlier, in another case, he referred to methods to determine partisan gerrymandering as "sociological gobbledygook."

Hannah McCarthy:
I didn't know you were allowed to use the word gobbledygook when you were a chief justice. So we know that this is happening, political scientists agree that gerrymandering is real, but it is not technically illegal.

Nick Capodice:
It is not technically illegal at the federal level. Some states have legislation that bans certain types of gerrymander, like the prison gerrymander we spoke of earlier. Twenty four states have laws requiring that maintaining communities of interest has to be considered when they're drawing the maps. But even then, it's not easy to prove in a court of law if gerrymandering is happening. And Justin Levitt told me that just because a map looks strange and snaky, that doesn't mean it's necessarily a gerrymander.

Justin Levitt:
It's dangerous to judge a book by its cover. And so you can have some really nice looking districts that do some pretty bad things, and you can have some strange looking districts that do some pretty great things.

Hannah McCarthy:
So we've talked about strange and like bad maps a lot so far. But can you give me an example of a strange but positive map?

Nick Capodice:
Yeah, and radio is a bad medium to talk about map design, but listeners should take a look at Illinois's 4th Congressional District. It looks absurd. It's like, what do you call the thing you like in a movie and you say... a clapperboard? It's like a clapperboard on a movie set. But what that strange clapperboard district does is it unites two Latino communities that share a lot of characteristics and thus a lot of representational needs.

Justin Levitt:
And so it's not often the strangely drawn nature of a district that tells you whether it's good or bad. People make assumptions just like they make assumptions about other people based on how they look that aren't always true.

Hannah McCarthy:
Can I ask about the argument that we should just do away with human beings drawing districts entirely and just let a computer do it randomly?

Nick Capodice:
Yeah, I always thought, that's like the perfect solution. It's just, you know, take the humans out of the equation, and there are a lot of people who do advocate for that. But I want to share two arguments against random redistricting. First off, Robin said even that could favor one party over the other.

Robin Best:
The problem was kind of the natural geography in the U.S. is that Democrats tend to be very packed together. So New York City, you can't really draw competitive districts in New York City. They are going to be packed full of Democrats, no matter what you do. So a lot of those votes are not going to kind of be effectively used. They're just going to be wasted. So the entire country actually kind of looks like that. So you have Democrats that are kind of packed more tightly into these urban geographic centers and Republican votes that are distributed kind of more efficiently is what we call it in terms of elections across the other areas in the state. So that if you just kind of let the computer draw the maps, you're likely to just perpetuate that kind of natural gerrymander that's already in place, which is then going to end up being a bit biased against Democrats and in favor of Republicans.

Nick Capodice:
And finally, Justin said something that made me realize that when I was staring at maps and numbers, I had lost sight of the whole reason we have congressional districts in the first place. Hannah, why do we elect our representatives in the United States?

Hannah McCarthy:
Because they represent us. It is, it's right there in their name, representative. And if we feel they don't do a good job representing us, we get to pick someone else

Nick Capodice:
And it's much easier to gauge how well they're doing at it if people in their district have things in common.

Justin Levitt:
Sometimes those are geographic. People from a particular town or particular county. Sometimes that's based on industry. Sometimes it's based on racial or ethnic affiliation. It can be based on lots of things. But when people have common interests, when a community together as common interests, they can hold their representatives accountable for whether their representatives are standing up and representing those interests or not. If your district represents the tech sector, then your representative should be out there advocating for the tech sector in ways that are Republican or Democrat, but should be advocating for the tech sector. If your district represents St. Louis, then your representative should be advocating for St. Louis. Whether they're Republican or Democrat should also be advocating for St. Louis. So there's a lot to be said for having districts where there's something common about the people who live in the district. There's something that binds them together beyond just party. And when you have districts that are created to reward or punish friends or enemies, that makes it really hard to hold the representatives accountable.

Hannah McCarthy:
So when I asked if gerrymandering is legal, the answer is kind of like the answer to Can I make a right on a red light? It depends where you are.

Nick Capodice:
Yeah, though I will add there is language in the Freedom to Vote Act, which was introduced in the Senate in October of Twenty Twenty One, which explicitly bans partisan gerrymandering, and it puts up safeguards to fix maps that are unfairly drawn. But the bill did not get the 60 votes needed to overcome the filibuster. But to your question, gerrymandering can be legal depending on your state.

Hannah McCarthy:
May I take the question just one step further?

Nick Capodice:
Yeah.

Hannah McCarthy:
Is gerrymandering cheating?

Nick Capodice:
That was a real... That was a really hard question, because like when you Google is gerrymandering cheating, you're not going to get an answer. Yeah, I didn't. I didn't ask Robin that when I was interviewing her, so I wrote her an email after to ask that exact question. And here's her response to Is gerrymandering cheating? She says, I think it would be fair to say that partisan gerrymandering violates our notions of fairness and democratic principles. So would most of the population view it as cheating, even if it's not explicitly illegal? Yes. Probably.

Nick Capodice:
And that is it for gerrymandering. Today's episode was produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy:
Thank you. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and stan of the Nicholas Cage Vehicle, Valley Girl. Music.

Nick Capodice:
Music in today's episode by Blue Note Sessions, Sir Cubworth, Quincas Moreira, Cory Gray, Makiah Beats, Ikimashu Oi, and that composer with the chords never miss-keyed, Chris Zabriskie.

Hannah McCarthy:
Civics 101 is a production of Nhpr.org New Hampshire Public Radio.

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Transcript

Nick Capodice: Ok. Ok. Yeah. Ok, hold on. Ok. Take a look at this. Ok.

Hannah McCarthy: It's like a Rorschach test.

Nick Capodice: Ok, so that's Maryland's Third District, and it's called it's nicknamed the praying mantis. Check this one out.

Hannah McCarthy: There's a long thing that could be like a trunk that looks like it might be like squirting water out of it.

Nick Capodice: That's Texas's Thirty Fifth District, and it's nicknamed the Upside-Down Elephant.

Hannah McCarthy: Is it [00:00:30] Rorschach or Rorschach?

Nick Capodice: Rorschach.

Hannah McCarthy: Good I got it right.

Nick Capodice: There's an old joke like, Who is this guy Rorschach? And Why did he draw so many pictures of my parents fighting?

Hannah McCarthy: Yeah, that's funny. This one looks like someone like yelling at someone else and kicking their butt.

Nick Capodice: That is Pennsylvania's 7th District. It doesn't exist anymore, and it's got my favorite nickname, which is Goofy kicking Donald Duck.

Hannah McCarthy: So these are congressional districts, right? Why do they look so weird?

Nick Capodice: Ok, so you know, every two years, a bunch of Americans go into a voting [00:01:00] booth and they pick someone, right?

Hannah McCarthy: Yes, voting.

Nick Capodice: What these are extreme instances of are not citizens picking representatives. But representatives picking them. You're listening to Civics 101, I'm Nick Capodice,

Hannah McCarthy: I'm Hannah McCarthy,

Nick Capodice: And today we are talking about gerrymandering, the political maneuver of drawing a map to divide voters so on Election Day, one party is more likely to win [00:01:30]. To start off, if you live in the United States, you live in a congressional district. Your physical address determines who you can vote for in an election. And even if you live in a state that only has one district, your address still matters because it determines who you can vote for in your state legislature.

Hannah McCarthy: And I know that as we speak November 2021, these maps are being drawn, right?

Nick Capodice: Yes, they are, because we draw our state and federal congressional districts after each census.

Hannah McCarthy: I have heard news stories from multiple [00:02:00] states about these new maps. Nick, people care so deeply about them, and I think that that's in part because we are going to be stuck with them for 10 years.

Nick Capodice: And because of that, Hannah, gerrymandering is always a current events issue.

Justin Levitt: Well it's no surprise if I could guarantee my job in the job of my friends and guarantee that I could punish the people I don't like. I'd be mighty tempted to use that power, no matter what field that we're in.

Nick Capodice: This is Justin Levitt. He's a professor of law at Loyola Marymount [00:02:30] University.

Justin Levitt: Legislators aren't any different. Legislators. They're just like us. And since the dawn of the redistricting process, legislators have used the power to draw the lines to reward their friends and punish their enemies.

Hannah McCarthy: This is interesting. I tend to think of gerrymandering as this modern day political practice that involves computers and data analysis and a lot of critique. But it sounds like Justin is saying that this is something that we have always done.

Nick Capodice: Always, since the very beginning before we even had a word for it. [00:03:00] Some scholars have suggested that Patrick Henry, Mr. Give me liberty or give me death, almost gerrymandered James Madison out of Congress in 1788 by redrawing Virginia's maps. But I'm going to jump ahead to the creation of the term, which is in 1812, and I'm going to start with the fact that we're probably saying it wrong.

Nancy Miller: You reached out to your nana to see if there's anything you wanted me to to address to the congressman when he comes out next.

Yes, she had a few things. She said he should know that his district was the first to be gerrymandered. And I said, Yeah, I know. Yeah,

Nick Capodice: That [00:03:30] was John Mulaney on Late Night with Seth Meyers and his grandmother's right. The term comes from that signer of the Declaration of Independence, Massachusetts Gov. Elbridge Gerry. Gerry was a Democratic Republican at the time, and he signed a redistricting act that cut up the districts of Essex County so it would be much harder for the other party, the Federalists, to get any seats in the Legislature. And the map of these [00:04:00] districts was such a long, curved shape that a cartoonist put wings and a reptilian head on it and published it in the Boston Gazette with the name Gerrymander. It's a portmanteau word of Gerry and Salamander.

Hannah McCarthy: Now I'm not a herpetologist here, but I don't believe that salamanders have wings.

Nick Capodice: That's fair. I think it comes from when we used to use the word salamander to just mean dragon.

Hannah McCarthy: Was that 1812 gerrymander successful?

Nick Capodice: Lord Yes. In the following election, Federalists won [00:04:30] only a third of seats in the state legislature, even though they had a majority of the popular vote.

Hannah McCarthy: But how does that work? How do these maps hold so much power?

Nick Capodice: Well, to understand gerrymandering, we have to first understand the process that we're going through now, congressional redistricting. And Justin told me that redistricting is one of the most important facets of our democracy because whatever you care about Hannah, whether it's like national security or universal health care or a woman's right to choose or gun rights, [00:05:00] whatever, it all comes down to our election process, we do things through the representatives that we elect.

Justin Levitt: And if you care about the election process, then you care about redistricting. It's the infrastructure of infrastructure. It's how we do absolutely everything else because it makes sure that some voices get lifted up in choosing who those representatives will be that decide what kind of a world we're going to be living together.

Nancy Miller: Redistricting [00:05:30] is something we have to do, or it's it's good that we have to do it every 10 years now since the 1960s, because people move around.

Nick Capodice: This is Professor Nancy Miller. She teaches political science at the University of Dayton.

Nancy Miller: From a congressional standpoint, we've decided that the House of Representatives is going to be 435 people, and I don't think there's any appetite to make that larger right now. And so people move from the northeast to the South or the Midwest to the South. Sometimes they move from the south [00:06:00] up to the Pacific Northwest. And in order to keep with the principle of one man, one vote, some states have to lose some seats and some states will gain some seats. And if you're going to change the number of seats in a state, then you, of course, you've got to redraw the lines.

Nick Capodice: And if we're keeping the house at four hundred and thirty five members, it's only fair that each of those members represents about the same number of people.

Nancy Miller: So what would commonly happen in particular in state legislatures, [00:06:30] but also in congressional delegations? Oftentimes, they would just map districts on the counties like, especially at the state legislative level. And as cities grew, there was a lot of what we would call malapportionment.

Hannah McCarthy: It's called malapportionment,

Nick Capodice: Malapportionment. Apportionment that is unfair. So you'd have a city of a million people represented by one person and then a lot of rural communities of like 20000 people with one representative each for those. So if you [00:07:00] lived in the city, your vote meant a lot less. And there were fewer people in Congress standing up for city issues.

Nancy Miller: So rural rural interests were always dominating the Legislature. Oftentimes to the detriment of urban populations, which couldn't get some of the services or the infrastructure things they needed because it wasn't a priority for rural legislators

Nick Capodice: On the national level there are four hundred and thirty five congressional districts in the United States, and each one represents about seven hundred thousand [00:07:30] people. There are some exceptions, though.

Hannah McCarthy: For example, I'm thinking of those states that have one congressional district and a smaller population than 700000, like Wyoming.

Nick Capodice: Yeah, Vermont. Those outliers aside, since the 1960s, every 10 years after each federal census states redraw their federal congressional districts and their state congressional districts to make sure that malapportionment doesn't occur. And this process is when we get to the world of the praying mantis, the upside-down elephant, [00:08:00] goofy kicking Donald Duck.

Robin Best: Partisan gerrymandering, of course, doesn't have to happen.

Nick Capodice: This is Professor Robin Best, who teaches political science at Binghamton University.

Robin Best: But the redistricting process that happens every 10 years gives the people drawing these lines the opportunity to draw those lines in a way that might advantage one political party and disadvantage the other political party. After the last round of redistricting in 2010, [00:08:30] we saw a good number of people drawing those district lines actually do so to try to benefit one party at the expense of the other.

Hannah McCarthy: And that is what separates redistricting from gerrymandering. Right. Redistricting is a necessary democratic process, but gerrymandering is done to favor one party.

Nick Capodice: Yes, and there are three tried and true methods of gerrymandering packing, cracking and [00:09:00] stacking, and we're going to cover all three. First up, packing

Robin Best: When you pack partisans, you cram as many of them as you possibly can into a few districts as possible. So for example, if you are Republicans and you want to advantage your own party when you're drawing district lines, you would try to cram as many Democratic voters into a few districts as possible. And you kind of give them those districts, right? So say you [00:09:30] have 10 districts that you're trying to create. You put as many Democrats as you can into two of them where they constitute like a ninety five percent majority. You give them those two districts and then you spread out your Republicans across the remaining eight districts so that you receive a majority of the vote in each of those districts.

Nick Capodice: And cracking is the opposite. Let's say you're a Democrat-controlled legislature and you want to draw a map that favors your party, the Democrats. So what you do is you take a Republican district [00:10:00] and you crack it up, putting those Republican voters into nearby Democrat dominant districts. So instead of four super blue districts and one Super Red District, you have five barely blue districts, five Democratic elected officials.

Hannah McCarthy: Ok. It seems to me, then, that the most dastardly gerrymander, the perfect crime, if you will, would be to crack districts so deftly that your party wins every district by the slimmest margin. [00:10:30]

Nick Capodice: And that is a map, just like goofy kicking Donald Duck. Pennsylvania's 7th District, it so obviously cracked several urban neighborhoods into outlying rural areas that there was a public outcry and a lawsuit. Party leaders couldn't agree how to fix it, and it fell to the Pennsylvania Supreme Court to redraw the district more equitably in 2018.

Hannah McCarthy: All right. I got packing. I got cracking. But stacking is one that I have never heard of

Nick Capodice: Yeah, stacking is, in my opinion, the most nefarious. When [00:11:00] you stack a congressional district, you draw the lines to create a perceived majority in it. A majority of people who are either minorities and a lower income bracket or less educated three demographics that statistically due to various circumstances, have a much lower voter turnout than educated, wealthy white voters.

Hannah McCarthy: So it's kind of like misdirection. You grant a clear majority presence in a district. The official, elected [00:11:30] in November, is not the one who represents the majority of people who live there.

Nick Capodice: Absolutely. And there are other methods of gerrymandering that don't get talked about as much. I just want to give them a brief mention here. There's prison-based gerrymandering where a district with a large incarcerated population which cannot vote counts those citizens as part of that district's population instead of their hometown, giving that district more representative power. And finally, there's sweetheart gerrymandering. That's where incumbents [00:12:00] from both parties reach a tacit handshake, an agreement to draw the lines so everybody just gets to keep their job.

Hannah McCarthy: Who specifically is in charge of physically drawing these maps?

Nick Capodice: All right, here's Robin again.

Robin Best: Yes, that is actually probably the most important question. So in the majority of states, the state legislatures will draw the lines and then often the maps that they create have to be approved by the governor in a much smaller proportion of states. The lines are drawn by redistricting [00:12:30] commissions, some of which are independent, some of which are political, some of which are bipartisan. There are lots of different variations of those, but in the vast majority of states, they're still drawn by state legislatures.

Nick Capodice: And those variations are interesting. Some states have independent commissions that draw the maps, and each commission is completely different. California's redistricting commission comprises five Democrats, five Republicans and four individuals unaffiliated with any party drawn by a lottery. But as of right now, maps are [00:13:00] drawn by the state legislature in thirty three states.

Robin Best: And as you can imagine, you know, the state legislatures are not entirely neutral observers of elections. So we actually see we tend to see the more egregious gerrymanders occur as a result of the lines that are drawn by state legislatures with approval of the governor. So when one party, for example, controls all three branches of the state government, we call that a trifecta. Under those trifecta, [00:13:30] we are likely to see the more egregious gerrymander to take place. If there is divided control, so a legislature of one party and a governor from another party, we're less likely to see those types of kind of egregious partisan gerrymanders.

Hannah McCarthy: As to the result of those different gerrymanders, I do happen to know that they are tremendously effective. Most significantly, I know that in 2012, Democrats received over a million more votes for the House, but [00:14:00] the GOP won a thirty three seat majority. Which brings me to a bigger question. Is this legal?

Nick Capodice: A good question, and one that I'm going to get to right after the break.

Hannah McCarthy: Ok, but before that, I want to tell listeners that they can read all about the deep dives that are too full of ephemera and trivial tidbits to make it into our show in our free, biweekly newsletter. It's called extra credit. You can subscribe at our website, civics101podcast.org

Nick Capodice: And quickly, speaking [00:14:30] of reading, Hannah and I took the stuff we've learned from making three years worth of episodes and compressed it into a book. It's called A User's Guide to Democracy, How America Works. It's illustrated by the wonderful New Yorker cartoonist Tom Toro. You can get it wherever you get your books.

Nick Capodice: Ok, we're back, where were we?

Hannah McCarthy: You were about to answer the question of whether all of this is legal.

Nick Capodice: Ok. Here's Nancy Miller again.

Nancy Miller: So there were two cases in the nineteen sixties Reynolds V. Sims and Baker [00:15:00] V. Carr. So everybody's probably mostly familiar with Baker V. Carr, because that's the congressional one. Reynolds V. Sims handled state legislative districts, so it's basically the same principle that the districts you draw have to allow for roughly equal representation.

Nick Capodice: Both of these cases ruled that redistricting is a justiciable issue. It's a funny word. Justiciable. Justiciable means it's something that can be addressed by the Supreme Court or the State Supreme Court. And those two decisions dealt with equal numbers [00:15:30] of people in districts that malapportionment thing we talked about earlier. These are the cases that ruled we are obligated to redraw our maps after every census, and you can't draw a district so that it has significantly fewer citizens than another.

Hannah McCarthy: Did we redraw them at a different time prior to these court cases?

Nancy Miller: Prior to the nineteen sixties, the districts were just redrawn whenever the state felt like it. Pretty much so. There was a whole, yeah. So there was a whole lot of malapportionment.

Nick Capodice: But while [00:16:00] the Supreme Court ruled that in equal numbers of people in a state and federal districts is unconstitutional when it comes to the issue of partisan gerrymandering, I'm talking, cracking, packing and stacking. That is something else entirely.

Chief Justice Roberts: And others set forth, in our opinion. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. We vacate the judgments below and remand with instructions to dismiss...

Nick Capodice: That was Chief Justice John Roberts announcing the 2019 [00:16:30] decision in Rucho V. Common Cause. It was a five to four decision which stated that partisan gerrymandering claims are not justifiable. The Supreme Court cannot rule on questions of a political nature, and it's no surprise that John Roberts wrote the opinion because a year earlier, in another case, he referred to methods to determine partisan gerrymandering as "sociological gobbledygook."

Hannah McCarthy: I didn't know you were allowed to use the word gobbledygook when you were a chief justice. So we [00:17:00] know that this is happening, political scientists agree that gerrymandering is real, but it is not technically illegal.

Nick Capodice: It is not technically illegal at the federal level. Some states have legislation that bans certain types of gerrymander, like the prison gerrymander we spoke of earlier. Twenty four states have laws requiring that maintaining communities of interest has to be considered when they're drawing the maps. But even then, it's not easy to prove in a court of law if gerrymandering is happening [00:17:30]. And Justin Levitt told me that just because a map looks strange and snaky, that doesn't mean it's necessarily a gerrymander.

Justin Levitt: It's dangerous to judge a book by its cover. And so you can have some really nice looking districts that do some pretty bad things, and you can have some strange looking districts that do some pretty great things.

Hannah McCarthy: So we've talked about strange and like bad maps a lot so far. But can you give me an example of a strange but positive map?

Nick Capodice: Yeah, and radio [00:18:00] is a bad medium to talk about map design, but listeners should take a look at Illinois's 4th Congressional District. It looks absurd. It's like, what do you call the thing you like in a movie and you say... a clapperboard? It's like a clapperboard on a movie set. But what that strange clapperboard district does is it unites two Latino communities that share a lot of characteristics and thus a lot of representational needs.

Justin Levitt: And so it's not often the strangely drawn nature of a district that [00:18:30] tells you whether it's good or bad. People make assumptions just like they make assumptions about other people based on how they look that aren't always true.

Hannah McCarthy: Can I ask about the argument that we should just do away with human beings drawing districts entirely and just let a computer do it randomly?

Nick Capodice: Yeah, I always thought, that's like the perfect solution. It's just, you know, take the humans out of the equation, and there are a lot of people who do advocate for that. But I want to share two arguments against random redistricting. First off, Robin said even [00:19:00] that could favor one party over the other.

Robin Best: The problem was kind of the natural geography in the U.S. is that Democrats tend to be very packed together. So New York City, you can't really draw competitive districts in New York City. They are going to be packed full of Democrats, no matter what you do. So a lot of those votes are not going to kind of be effectively used. They're just going to be wasted. So the entire country actually kind of looks like that. So you have Democrats that are kind of packed more tightly [00:19:30] into these urban geographic centers and Republican votes that are distributed kind of more efficiently is what we call it in terms of elections across the other areas in the state. So that if you just kind of let the computer draw the maps, you're likely to just perpetuate that kind of natural gerrymander that's already in place, which is then going to end up being a bit biased against Democrats and in favor of Republicans.

Nick Capodice: And finally, Justin said something that made me realize that when I was staring at maps and numbers, [00:20:00] I had lost sight of the whole reason we have congressional districts in the first place. Hannah, why do we elect our representatives in the United States?

Hannah McCarthy: Because they represent us. It is, it's right there in their name, representative. And if we feel they don't do a good job representing us, we get to pick someone else

Nick Capodice: And it's much easier to gauge how well they're doing at it if people in their district have things in common.

Justin Levitt: Sometimes those are geographic [00:20:30]. People from a particular town or particular county. Sometimes that's based on industry. Sometimes it's based on racial or ethnic affiliation. It can be based on lots of things. But when people have common interests, when a community together as common interests, they can hold their representatives accountable for whether their representatives are standing up and representing those interests or not. If your district represents the tech sector, then your representative should be out there advocating for the tech sector in ways [00:21:00] that are Republican or Democrat, but should be advocating for the tech sector. If your district represents St. Louis, then your representative should be advocating for St. Louis. Whether they're Republican or Democrat should also be advocating for St. Louis. So there's a lot to be said for having districts where there's something common about the people who live in the district. There's something that binds them together beyond just party. And when you have districts that are created to reward or punish friends or enemies, that [00:21:30] makes it really hard to hold the representatives accountable.

Hannah McCarthy: So when I asked if gerrymandering is legal, the answer is kind of like the answer to Can I make a right on a red light? It depends where you are.

Nick Capodice: Yeah, though I will add there is language in the Freedom to Vote Act, which was introduced in the Senate in October of Twenty Twenty One, which explicitly bans partisan gerrymandering, and it puts up safeguards to fix maps that are unfairly drawn. But [00:22:00] the bill did not get the 60 votes needed to overcome the filibuster. But to your question, gerrymandering can be legal depending on your state.

Hannah McCarthy: May I take the question just one step further?

Nick Capodice: Yeah.

Hannah McCarthy: Is gerrymandering cheating?

Nick Capodice: That was a real... That was a really hard question, because like when you Google is gerrymandering cheating, you're not going to get an answer. Yeah, I didn't. I didn't ask Robin that when I was interviewing her, so I wrote her an [00:22:30] email after to ask that exact question. And here's her response to Is gerrymandering cheating? She says, I think it would be fair to say that partisan gerrymandering violates our notions of fairness and democratic principles. So would most of the population view it as cheating, even if it's not explicitly illegal? Yes. Probably.

Nick Capodice: And [00:23:00] that is it for gerrymandering. Today's episode was produced by me Nick Capodice with You Hannah McCarthy. Thank you.

Hannah McCarthy: Thank you. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and stan of the Nicholas Cage Vehicle, Valley Girl. Music.

Nick Capodice: Music in today's episode by Blue Note Sessions, Sir Cubworth, Quincas Moreira, Cory Gray, Makiah Beats, Ikimashu Oi, and that composer with the chords never miss-keyed, Chris Zabriskie.

Hannah McCarthy: Civics 101 is a production of Nhpr.org New [00:23:30] Hampshire Public Radio.

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After 9/11: Department of Homeland Security

The terrorist attacks on September 11th, 2001, made one thing very obvious: our country’s national security strategy was flawed. What followed was one of the biggest reorganizations of our federal government in history: the creation of the Department of Homeland Security in November, 2002.

What about 9/11, the attacks, and their aftermath, made it possible for the government to transform, in just over a year? And how has that transformation changed how our government makes decisions about threats to our country, and responds to them?

Helping us untangle this story are: David Schanzer, the director of the Triangle Center on Terrorism and Homeland Security at Duke University; Darren Davis, a politics professor at the University of Notre Dame who studies public opinion and political behavior; and Eileen Sullivan, the Homeland Security Correspondent for the New York Times.

Editor’s note: A previous version of this episode misstated that prior to 9/11, a person applied for a visa through the Immigration and Naturalization Service.

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

Episode Resources

Christina’s attempt to organize the Department of Homeland Security by mission. To find DHS’s complete organizational chart, click here.

Episode Segments

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DHS final.mp3: Audio automatically transcribed by Sonix

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

Christina Phillips:
I have hit record! We are going.

Nick Capodice:
Well, let me start by saying it is lovely to see you in this chair, Christina.

Christina Phillips:
It is so wonderful to be here in the studio with you, face to face.

Nick Capodice:
Everyone. This is Christina Phillips. She is our senior producer, and she's going to be stepping in for Hannah this week. She is about to take us on a journey and she has been, quite frankly, busy.

Christina Phillips:
Yeah, so I thought I'd given myself a pretty straightforward task, which was explaining how September eleventh led to the creation of the Department of Homeland Security and why that matters.

Nick Capodice:
And this is the executive department that combined twenty two agencies from several different departments under one roof, right?

Christina Phillips:
Yeah. And created a few new agencies on top of that, all for the purpose of preparing for preventing and responding to domestic emergencies, especially terrorism. And let me tell you, just trying to figure out what moved where and why was a pretty enormous task. I ended up mapping it out on a whiteboard that is the size of a window. Wow. Imagine what it was like for the federal government to decide to do this in the first place, upend dozens of agencies and more than one hundred and sixty nine thousand employees, and fold them into a brand new department that has one mission to protect the homeland.

Nick Capodice:
Now this need to protect the homeland that didn't exist before 9/11.

Christina Phillips:
Well, our government has always had the role of providing for the common defense since the founding of our nation. It's in our constitution, right? But it took one day, one series of attacks for the government to be able to completely reshape what that means over an extremely compressed timeline. You'd think that something as serious as national security would still be subject to the slow grind of democracy that our government love so much. But it only took 14 months for Congress to pass the Homeland Security Act on November 25th, 2002 and establish a brand new executive department

Nick Capodice:
A very short time.

Christina Phillips:
And what I'm so interested in is what was it about that day, about that moment that made it so urgent, so possible for the government to start looking at itself differently enough so that it could create a new department? And once we've created this thing, what does that actually look like? Before we can talk about what the Department of Homeland Security is and does, we've got to take a step back and talk about how we got there.

Nick Capodice:
All right, let's get into it.

Christina Phillips:
Five strangers come into contact with the federal government. At the same time, a woman arrives at the Mexico side of the U.S.-Mexico border with a temporary work visa.

Archival Audio:
"The National Weather Service has issued a tornado warning."

Christina Phillips:
An emergency services dispatcher in Missouri issues a tornado warning.

Christina Phillips:
The captain of a shipping vessel from England sails into a port in Newark, New Jersey. The vice president climbs into a car that takes her to a speaking engagement near the U.S. Capitol.

Archival Audio:
"This is a final boarding call for the..."

Christina Phillips:
A man arrives at an airport in New York City to board a flight.

Christina Phillips:
What each of these people have in common is that they are face to face with the Department of Homeland Security, but their experiences would have been very different if they happened prior to 9/11. Before the terrorist group Al-Qaida hijacked four planes and killed nearly 3000 civilians in an attack on U.S. soil.

Archival Audio:
Eyewitness News. The unthinkable happened today the World Trade Center.

Archival Audio:
Both towers gone and we are all and we're just beginning to understand the extent of the catastrophe.

President Bush:
Tonight is the most extensive reorganization of the federal government since the 1940s. During his presidency, Harry Truman recognized that our nation...

Christina Phillips:
This is the story of how the government transformed itself after the terrorist attacks of September 11, 2001, by creating a new executive department designed specifically to prevent and respond to threats. So Nick, what do you remember about the creation of the Department of Homeland Security?

Nick Capodice:
I remember it was swift and massive.

Christina Phillips:
Yeah, this was the biggest reorganization of the federal government since 1947, which, by the way, that reorganization was also because of national security. It was called the National Security Act of 1947, and it moved military operations like the Army, Navy and Air Force under a Department of Defense and created the CIA and the National Security Council.

Nick Capodice:
And this was after World War Two with a brewing Cold War on the horizon. But September 11th was not a war. It was an attack, and it took place on a single day.

Christina Phillips:
I asked David Schanzer, who's the director of the Triangle Center on Terrorism and Homeland Security at Duke University, to walk me through the aspects of the 9/11 terrorist attacks that felt different from anything the government had responded to before.

David Schanzer:
The attacks demonstrated multiple vulnerabilities and multiple, you know, gaps and things that went wrong during the day.

Christina Phillips:
David was a staffer for the U.S. Senate on 9/11, and he was there for the creation of the Department of Homeland Security. He talks about some of the systems that were exploited by Al Qaida.

David Schanzer:
All the hijackers were able to enter the United States. Their applications were generally fraudulent, but they entered. They got visas to come into the US.

Christina Phillips:
I just want to pause here because that's two agencies in two different departments right there. Before nine eleven, a person applied for a visa through the Immigration and Naturalization Service, which was in the Justice Department. And when they reach the border like an airport, they pass through U.S. customs, which was in the Treasury Department.

Nick Capodice:
I think I'm starting to see where you're going here.

David Schanzer:
Our aviation system, of course, was shown to be extremely vulnerable that they could bring knives on planes. And we know nothing about people as they were boarding.

Nick Capodice:
And that's airport security, which used to be just private security agencies. When I was a kid, there was a metal detector, but that was about it. You didn't even need an I.D. to get on a plane back then. You could just walk up to the gate.

Christina Phillips:
Well before 9/11, there was something called the computer assisted passenger prescreening system, or CAPPS, which was shared between the Federal Aviation Administration and the FBI. It was created in the 1990s because of concerns about terrorism, so certain passengers would have their checked baggage screened for explosives. But you're right, there was minimal security screening for most passengers, and airlines had to hire their own security. The Transportation Security Administration did not exist.

David Schanzer:
They were shown to be a lack of real coordination between the different law enforcement and intelligence entities. The CIA knew that al Qaeda was planning some sort of spectacular attack. They didn't know where or when. Of course, a lot of that information didn't get passed on to the FBI. The FBI was tracking some people. Then they lost track of them.

Christina Phillips:
By the way, we covered this in more depth in our episode about the FBI. So check that out. The point is, the style of terrorist attacks planned by Al Qaida revealed just how vulnerable our country was and that the existing approach to national security wasn't sufficient and that there were some security measures that didn't exist at all.

David Schanzer:
So all of these issues led to this movement to create many different reforms. The most comprehensive one was to create a Department of Homeland Security that was placing all the different agencies with responsibility for the protection. The regulation, essentially the creation of borders, whether they be borders by air, by sea, by land, all into one department.

Nick Capodice:
But terrorism wasn't unheard of in the United States until September 11th. And it wasn't even the first terrorist attack on the World Trade Center. I remember in 1993, a terrorist detonated a bomb in a truck in the parking garage below the North Tower.

Christina Phillips:
That's what I think is key here. The federal government had been thinking about new threats to national security, but politicians were also thinking about everything else the economy, health care, education. There had actually been a study in 1998 called the Commission on National Security in the 21st Century that was quote "the most comprehensive review of American security since the National Security Act of 1947"

Nick Capodice:
Which, as you said earlier, was the last time the government had undergone a major reorganization.

Christina Phillips:
The study was more commonly known as the Hart Rudman Commission after lead author Gary Hart and Warren Rudman. They said that a lack of coordination across agencies in the circumstances of a terrorist attack or disaster was a huge concern. In fact, Warren Rudman, a former Republican senator from New Hampshire, talked about this exact problem in February 2001 on C-SPAN

Nick Capodice:
February, seven months before nine eleven.

Warren Rudman:
Yes, the responsibility for dealing with that kind of a disaster in this country currently is spread across 46 federal agencies, which do not have good coordination with each other. We believe that this is such a serious threat that we're not talking about creating a new bureaucracy. We're talking about probably reducing the bureaucracy by moving the functions and these units into a Homeland Security Agency, which will then be.

Nick Capodice:
Oh, interesting. So that term Homeland Security was being tossed around in government circles before September 11.

Christina Phillips:
Yeah, the term is not new. But before the September 11th attacks, the discussions around protecting the homeland were much more theoretical. I watched some of the congressional hearings about the Hart Rudman Commission, and the politicians were talking a lot about budgeting and turf. You know who's going to do what? Who is going to pay for it? What are we going to give up in order to do it? And what makes that national security threat go from something theoretical into an actual plan? And action has to do with the experience of the attacks for the public. The September 11th attacks felt new.

Darren Davis:
The crucial difference for nine 11 for the average American citizen was that there were innocent victims.

Christina Phillips:
This is Darren Davis. He's a professor of political science at the University of Notre Dame. He actually surveyed Americans right after 9-11 and asked how they were feeling in that moment about terrorist attacks and their government.

Darren Davis:
In the immediate aftermath. Many American citizens were thinking that there were more terrorist attacks to follow. So there's this belief that they needed to be protected.

Christina Phillips:
Darren talks about this trade off that people have to make between being protected from terrorism and being protected from the government's encroachment on our civil liberties.

Darren Davis:
When the government is attacked, when American citizens are attacked, when they've been attacked in the past. American citizens can be expected to give up their rights. Congress can be expected to concede to a more powerful president for fear of being considered unpatriotic.

Christina Phillips:
The media also played a role in this.

Darren Davis:
The media acquiescence to a more powerful president for fear of being considered unpatriotic.

Nick Capodice:
The coverage was relentless. There was nothing else being talked about on radio or TV or in newspapers for months, like my friend and I used to say, walking around whatever we'd see the sign that said, never forget. We're like, I don't think that's very likely. I don't think anybody's going to be forgetting this anytime soon.

Christina Phillips:
The media does set a tone and for example, in World War Two, when media was reporting on what was happening during the war, there were choices made like suppressing information until after an attack happened for the greater purpose of success in the war.

Nick Capodice:
So it's yeah, it's just so interesting in such a tenuous line, right? I'm keeping you misinformed for your safety and for the country's safety. It always leads to an ultimate question is this a good thing or not? So was that happening in the aftermath of the attacks on 9-11?

Christina Phillips:
Well, after 9-11, there was a lot of coverage of how the government was acting to keep people safe. There was a lot of opportunity for politicians to talk to the people. I mean, they were on the news all the time. And so there was a lot of access to the government and the government was getting a lot of access to the public through the media. Which brings me to the last big factor that made this massive reorganization possible. 9-11 had a uniting effect on the country.

Darren Davis:
Normally, the two political parties are deliberative. But one of the things I want to point out is that this came months after the 2000 election between Bush and Gore, and the government was extremely divided because that election had to be decided by the Supreme Court

Christina Phillips:
Because the decision is being taken out of the hands of the people and put into the hands of the Supreme Court. It just draws out this political tension. It was a really divisive moment, especially when it came to trusting that democratic process in supporting the incoming president

Darren Davis:
And politicians, and the public began to rally as expected behind George Bush.

Christina Phillips:
After nine 11, President Bush's approval rating rose from around 60 percent to 92 percent, including 88 percent of Democrats. This was one of the highest approval ratings for a president ever.

Nick Capodice:
To add to that, presidents and congresses are more effective when they have high approval ratings. They can get more done.

Darren Davis:
So here's the irony of all of this is that over time, as the government began to use. Its ability to protect its citizens, it began to lose support when the government began to lose support and trust declined, people were unwilling at that point to concede their civil liberties. So the immediate context of 911 is really, really important. What happened over time is also important because it shows that without trust, government can't do very much.

Nick Capodice:
We're going to keep exploring this new umbrella department, but first we're going to take a quick break. But before we do, if anyone is interested in all the ephemera, trivia and stuff that gets left on the cutting room floor of our episodes, Hannah and I write a biweekly newsletter called Extra Credit. It's free, and you can sign up at our website, civics101podcast.org.

Christina Phillips:
Civics 101 is produced by a nonprofit journalism outlet, New Hampshire Public Radio. We can only do what we do because listeners just like you chip in a few bucks, sometimes more than a few, to support our work. If you'd like to donate to the cause. Head over to Civics101podcast.org or click the link in the show notes.

Nick Capodice:
All right, so you've got this massive pressure from the American people to focus on terrorism. What were the first steps towards this massive consolidation to address that?

Christina Phillips:
The first thing President Bush did was issue an executive order creating a new Office of Homeland Security on September 20th, 2001. So this is not a department. President Bush said that this office and the director he appointed would develop a national strategy of Homeland Security and coordinate efforts across other departments.

Nick Capodice:
Had they plan to create this department by this time?

Christina Phillips:
No, no. So at this point, it's really like President Bush recognized that there's a whole bunch of agencies that are responding to terrorism, and he says, OK, I'm going to put this one guy in charge of helping communicate and organize all of these departments and agencies that are all trying to respond to terrorism in different ways.

Nick Capodice:
He's going to figure out a way to get them to, like, talk to each other.

Christina Phillips:
Yes, and and set a plan for how they'll respond in the future.

Nick Capodice:
So tell me about the guy they decided to put in charge.

Christina Phillips:
That would be Tom Ridge. He is the governor of Pennsylvania, and he started on October 8th, 2001.

Nick Capodice:
And what was Tom Ridge actually able to do? Could he give orders to the FBI, to the DOJ Department of Transportation just to make sure they're all now focused on this new Homeland Security strategy?

Christina Phillips:
So you're not the only person to ask that question.

Archival Audio:
If there's a bioterrorist, a large scale bioterrorist act in the future, who is in charge of the response, who has authority to make decisions related to the response, but I'm trying to find out basically is are you the boss here or are you a coordinator?

Tom Ridge:
If there is A well, I guess, you know, the coordinator, it's like a conductor with an orchestra. The music doesn't start playing until he taps the baton.

Christina Phillips:
That was a reporter at a press conference 10 days after Ridge started his official duties as director. It was in the middle of this other big attack that happened after 911, when someone mailed anthrax spores to congressional delegates and news agencies from a New Jersey post office, which ended up killing five people.

Archival Audio:
In just a week's time, we have had four confirmed cases of anthrax, all with media connections and a number of anthrax scares as well.

Christina Phillips:
In this press conference to explain how the government was responding to the anthrax attack and explaining his role as this new director of Homeland Security Tom Ridge was on stage with the head of the FBI leaders from the Department of Health and Human Services, the postmaster general, and several other people who were all responding to the anthrax attack. Ok, I promise this is related, but when I trained to be a wilderness EMT,

Nick Capodice:
You were a wilderness EMT.

Christina Phillips:
Yes, I was. It was mostly for my own safety, especially when I went on hikes. I'm very accident prone. But anyway, one thing you learn in search and rescue situations where you actually need to go out and find someone and provide medical attention in the wilderness like an injured hiker is that there needs to be an obvious hierarchy and there are people who understand what their role is. The person carrying the water, the person following the map, the person monitoring the patient, everyone there knows what they're doing and what everyone else is doing. And you've all agreed ahead of time on how it will work. And there's one person who's in charge of the whole thing, which is ideally how things could have worked with Tom Ridge in this new Office of Homeland Security.

Nick Capodice:
The difference here between the government and a hiker is that this is a federal emergency, but the government is still running at the same time.

Christina Phillips:
Yeah, and they're not used to responding to attacks like these in a coordinated way. They're writing the manual as they go and the guy in charge of making sure everything comes together. Tom Ridge is the newest person on the team.

Nick Capodice:
It sounds like a recipe for utter chaos.

Christina Phillips:
Yeah, that press conference showed that.

Tom Ridge:
If we think we've overlooked something, I make the call.

Nick Capodice:
So how do we get from an Office of Homeland Security to the creation of this massive department?

Christina Phillips:
It was later clear to many people that this solution an Office of Homeland Security with Tom Ridge as the director, wasn't enough. Agencies involved in national security were spread across departments with separate missions, and coordination wasn't happening as well as it needed to. In the months after the attacks on September 11th, as the government had to grapple with the major holes in national security, as the public had united around President Bush and was seeking protection, Bush announced the plan to establish a new cabinet Department of Homeland Security.

Christina Phillips:
I've been thinking of it like a bucket, the Homeland Security bucket, if you will. There would be twenty two agencies from other department buckets and they were going to be new agencies put in there. But that bucket didn't have everything.

Nick Capodice:
So Homeland Security wasn't this catch all. There's still work happening in other agencies that had to do with national security that weren't in the department.

Christina Phillips:
One of the major things that was not put in the Homeland Security bucket was the intelligence community, the Justice Department, FBI, CIA. So President Bush had to distinguish how the Department of Homeland Security would fit in with those other agencies.

Eileen Sullivan:
Dhs is primarily a law enforcement agency. It is enforcing the laws that the administration argues for in the Congress passes. And so they're not necessarily coming up with the laws. They're just but they are. They are enforcing them.

Christina Phillips:
This is Eileen Sullivan. She's the New York Times correspondent for the Department of Homeland Security.

President Bush:
Tonight, I propose a permanent cabinet level Department of Homeland Security to unite essential agencies that must work more closely together. Among them the Coast Guard, the Border Patrol, the Customs Service, immigration officials, the Transportation Security Administration and the Federal Emergency Management Agency. Employees of this new agency will come to work every morning knowing their most important job is to protect their fellow citizens.

Nick Capodice:
So have we reached the moment when you can explain what this whole new department looks like?

Christina Phillips:
Yes, it is time to pull out the giant whiteboard where I mapped out which agencies were absorbed into Homeland Security and how they fit into the purpose of the department, which President Bush very helpfully broke down into four different missions.

Nick Capodice:
By the way, we'll make sure to include a photo of this beast of a whiteboard on our website so you can follow along if you want at civics101podcast.org. Let's go through them one at a time. Tell me about mission number one.

Christina Phillips:
Mission number one is border control.

President Bush:
This new agency will control our borders and prevent terrorists and explosives from entering our country.

Christina Phillips:
Remember how I said there were four missions? Yeah, well, this first mission also has four different agencies in it focused on protection, enforcement and security at the border.

Nick Capodice:
So I see here the first one is U.S. Customs and Border Protection. Is that a new agency?

Christina Phillips:
Yes. So it's a new agency that absorbed customs and immigration agencies from the Treasury and Justice Department, as well as plant and animal inspection from the Department of Agriculture.

Nick Capodice:
So basically, like everything that comes across the border.

Christina Phillips:
Yeah, everything.

Christina Phillips:
The second agency is U.S. Immigration and Customs Enforcement, which is also known as ICE, and this is also a new agency. It's created specifically to protect the U.S. from cross-border crime and illegal immigration.

Nick Capodice:
Number three is another new agency under this border control mission the Transportation Security Administration. The TSA, which, as we already mentioned, did not exist before nine eleven.

Christina Phillips:
Yeah, this is the new law enforcement arm that puts airport security directly in the hands of the government.

Nick Capodice:
And the final part of the first mission of border control is the U.S. Coast Guard, which I always thought was part of the military.

Christina Phillips:
Yeah, it depends. The Coast Guard is technically overseen by the Department of Homeland Security and Peace, Peacetime and the Navy in wartime. Ok. It's not a simple system, especially considering that we've spent the majority of the 20 years since 9/11 at war.

Nick Capodice:
Ok, that's mission one. What's Mission two?

Christina Phillips:
Emergencies.

President Bush:
It will work with state and local authorities to respond quickly and effectively to emergencies.

Christina Phillips:
This is the Federal Emergency Management Administration, or FEMA, which was designed to coordinate disaster response between local and federal agencies. And it did exist before 9/11. But under the new reorganization, there was an additional focus on coordinating the response to terrorism related disasters.

Eileen Sullivan:
One of the original concepts of Homeland Security was that it would be the one to talk to state and local officials about about threats and about what they need to know. And so instead of getting multiple reports from different federal agencies, it should all be one.

Christina Phillips:
Homeland Security absorbed FEMA and FEMA absorbed the nuclear incident response team from the Department of Energy, the domestic emergency support team from the Department of Justice and the Center for Domestic Preparedness from the Justice Department and the FBI.

Nick Capodice:
Wow. So Mission Two: Emergency response. What about Mission Three?

Christina Phillips:
I'm not sure I can actually summarize this one into a couple of words. Let's just listen to President Bush.

President Bush:
It will bring together our best scientists to develop technologies that detect biological, chemical and nuclear weapons and to discover the drugs and treatments to best protect our citizens.

Nick Capodice:
I'm going to bite my tongue about the nuclear thing. Tell me, what is Bush saying here?

Christina Phillips:
From what I can tell, this is the research and development arm of Homeland Security, but it's basically six different things. What's it called?

Christina Phillips:
The Science and Technology Directorate Directorate.

Nick Capodice:
Can you give me some examples of what a directorate actually looks like?

Christina Phillips:
So one thing the directorate has done is develop technology that helps first responders communicate effectively in emergencies. The directorate also works a lot with private companies that are developing the technology. The government may want to use things like security technology for screening people and goods or threat forecasting.

Nick Capodice:
Ok. Mission Three: Science and Technology Directorate. What's mission four?

Christina Phillips:
Information analysis and infrastructure protection.

President Bush:
And this new department will review intelligence and law enforcement information from all agencies of government and produce a single daily picture of threats against our homeland. Analysts will be responsible for imagining the worst and planning to counter it.

Nick Capodice:
So cybersecurity and data gathering. But I also see the Federal Protective Service, which I don't know anything about, and the U.S. Secret Service, which I do, are also in this umbrella.

Christina Phillips:
Yeah, I had to look this up to the Federal Protective Service is the law enforcement that protects federal properties around the U.S. like federal courthouses and post offices.

Nick Capodice:
And the Secret Service, which was initially created to combat counterfeiting, provide security for the president, vice president, White House. But they still do investigate crimes against the U.S. financial system. With the reorganization, this massive Cristina, I assume it's not as simple as telling all these people, OK, you used to work for this department and now you're being moved to another department and your new mission is to protect the American people and prevent terrorists from killing Americans.

Christina Phillips:
One of the biggest hurdles for the department was Congress, specifically congressional oversight. See, in our system of checks and balances, one check on the power of the executive department is congressional committees. They monitor the work being done in the executive branch, and that work didn't stop when agencies were moved into a new department. Here's Eileen Sullivan, the Homeland Security correspondent for the New York Times.

Eileen Sullivan:
So while the agencies were pulled from their parent departments and formed DHS, the Congress didn't really give anything up.

Christina Phillips:
At the start, all the committees that were overseeing those individual agencies continued to oversee them under Homeland Security. It was over a hundred different committees by some count, 123.

Nick Capodice:
How does that number compare to other departments?

Christina Phillips:
Well, the Department of Defense, which is the largest cabinet department, is overseen by 30 committees. At one point, Secretary Chertoff, who was appointed in 2005, said that the department had written over 5000 briefings and attended over 300 hearings for Congress in a single year,

Nick Capodice:
And has that number changed since.

Christina Phillips:
Over the years, the number of committees have been winnowed down to around 90.

Nick Capodice:
So not much change at all,

Eileen Sullivan:
Which just shows you how difficult it is to take away turf anywhere, ever.

Christina Phillips:
And that kind of turf battle was bad, even when the focus of the department was still pretty narrow.

David Schanzer:
Well, first of all, there was really an almost exclusive laser like focus on the threat from Al Qaida and other like minded groups.

Christina Phillips:
That's David Schanzer, who was working in Congress on Homeland Security in the early years of the department.

David Schanzer:
Another nine 11 style attack where people or weaponry or explosives or weapons of mass destruction could be smuggled into into the U.S. and deployed.

Nick Capodice:
So what happens when time goes on and the focus isn't so laser like? What changed over the next 20 years?

Eileen Sullivan:
Current events have kind of defined each chapter of the department.

Christina Phillips:
As the department has encountered new challenges and new leadership. Its mission has evolved. There have been some major failures, like in 2005, when Hurricane Katrina struck the Gulf Coast and in each successive administration after Bush, the commander in chief, appointed heads of the department that fulfilled their agendas. You can see over time how the department's power has been applied in new ways, determined by what the government and its leader consider the biggest threats to our country. For example, President Obama made border security and cybersecurity. His major focuses during his presidency. He about doubled the number of Border Patrol agents and unmanned aerial vehicles, also known as drones, that surveyed the border.

Nick Capodice:
And then what happened under President Trump?

Christina Phillips:
He wanted to limit who was allowed to enter the United States legally or not. This included his highly controversial executive actions that restricted travel to the U.S. for citizens from several majority Muslim countries.

Archival Audio:
Protesters gathered outside JFK International Airport in New York and demanded the release of refugees blocked from entering the United States.

Christina Phillips:
And under President Trump, the federal government also enforced a family separation policy at the U.S.- Mexico border.

Archival Audio:
Border Patrol officials said today that since April, more than 2300 children have been separated from their families, with some held in makeshift tent cities.

Nick Capodice:
And what's most interesting to me is that the Department of Homeland Security was specifically created to help prevent something like 9/11 from ever happening again. But with each successive administration, it's become much more than that.

Christina Phillips:
This is a story of what happens when the way our government does things is held up to a microscope in a moment of violence and pain. Pair that with a public united by fear, anger and patriotism, and the outcome is a massive reorganization under a short timeline where the government is trying to protect the nation as its writing its own manual on what that actually means.

Christina Phillips:
The Department of Homeland Security has given us a name for our feeling of safety and security the homeland and has drawn lines around the borders of safe and dangerous. And in the 20 years since, given our leaders the tools to enforce them, from cybersecurity to law enforcement at the border, to screenings at the airport.

Christina Phillips:
So that's it for the Department of Homeland Security. This episode was written and produced by me, Christina Phillips, with help from You Nick Capodice and Hannah McCarthy.

Nick Capodice:
Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer.

Christina Phillips:
Music In this episode by Audiobringer, Broke for Free, KiloKaz, Martin Skeleton's Blue Dot Sessions, Makiah, UNCan, Chris Zabriskie, Jason Leonard and Yung Kartz

Nick Capodice:
Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Transcript

DHS final.mp3

Christina Phillips: [00:00:03] I have hit record! We are going.

Nick Capodice: [00:00:09] Well, let me start by saying it is lovely to see you in this chair, Christina.

Christina Phillips: [00:00:13] It is so wonderful to be here in the studio with you, face to face.

Nick Capodice: [00:00:17] Everyone. This is Christina Phillips. She is our senior producer, and she's going to be stepping in for Hannah this week. She is about to take us on a journey and she has been, quite frankly, busy.

Christina Phillips: [00:00:28] Yeah, so I thought I'd given myself a pretty straightforward task, which was explaining how September eleventh led to the creation of the Department of Homeland Security and why that matters.

Nick Capodice: [00:00:40] And this is the executive department that combined twenty two agencies from several different departments under one roof, right?

Christina Phillips: [00:00:47] Yeah. And created a few new agencies on top of that, all for the purpose of preparing for preventing and responding to domestic emergencies, especially terrorism. And let me tell you, just trying to figure out what moved where and why was a pretty enormous task. I ended up mapping it out on a whiteboard that is the size of a window. Wow. Imagine what it was like for the federal government to decide to do this in the first place, upend dozens of agencies and more than one hundred and sixty nine thousand employees, and fold them into a brand new department that has one mission to protect the homeland.

Nick Capodice: [00:01:22] Now this need to protect the homeland that didn't exist before 9/11.

Christina Phillips: [00:01:27] Well, our government has always had the role of providing for the common defense since the founding of our nation. It's in our constitution, right? But it took one day, one series of attacks for the government to be able to completely reshape what that means over an extremely compressed timeline. You'd think that something as serious as national security would still be subject to the slow grind of democracy that our government love so much. But it only took 14 months for Congress to pass the Homeland Security Act on November 25th, 2002 and establish a brand new executive department

Nick Capodice: [00:02:01] A very short time.

Christina Phillips: [00:02:03] And what I'm so interested in is what was it about that day, about that moment that made it so urgent, so possible for the government to start looking at itself differently enough so that it could create a new department? And once we've created this thing, what does that actually look like? Before we can talk about what the Department of Homeland Security is and does, we've got to take a step back and talk about how we got there.

Nick Capodice: [00:02:29] All right, let's get into it.

Christina Phillips: [00:02:34] Five strangers come into contact with the federal government. At the same time, a woman arrives at the Mexico side of the U.S.-Mexico border with a temporary work visa.

Archival Audio: [00:02:43] "The National Weather Service has issued a tornado warning."

Christina Phillips: [00:02:46] An emergency services dispatcher in Missouri issues a tornado warning.

Christina Phillips: [00:02:51] The captain of a shipping vessel from England sails into a port in Newark, New Jersey. The vice president climbs into a car that takes her to a speaking engagement near the U.S. Capitol.

Archival Audio: [00:03:03] "This is a final boarding call for the..."

Christina Phillips: [00:03:04] A man arrives at an airport in New York City to board a flight.

Christina Phillips: [00:03:09] What each of these people have in common is that they are face to face with the Department of Homeland Security, but their experiences would have been very different if they happened prior to 9/11. Before the terrorist group Al-Qaida hijacked four planes and killed nearly 3000 civilians in an attack on U.S. soil.

Archival Audio: [00:03:25] Eyewitness News. The unthinkable happened today the World Trade Center.

Archival Audio: [00:03:29] Both towers gone and we are all and we're just beginning to understand the extent of the catastrophe.

President Bush: [00:03:36] Tonight is the most extensive reorganization of the federal government since the 1940s. During his presidency, Harry Truman recognized that our nation...

Christina Phillips: [00:03:47] This is the story of how the government transformed itself after the terrorist attacks of September 11, 2001, by creating a new executive department designed specifically to prevent and respond to threats. So Nick, what do you remember about the creation of the Department of Homeland Security?

Nick Capodice: [00:04:07] I remember it was swift and massive.

Christina Phillips: [00:04:10] Yeah, this was the biggest reorganization of the federal government since 1947, which, by the way, that reorganization was also because of national security. It was called the National Security Act of 1947, and it moved military operations like the Army, Navy and Air Force under a Department of Defense and created the CIA and the National Security Council.

Nick Capodice: [00:04:31] And this was after World War Two with a brewing Cold War on the horizon. But September 11th was not a war. It was an attack, and it took place on a single day.

Christina Phillips: [00:04:43] I asked David Schanzer, who's the director of the Triangle Center on Terrorism and Homeland Security at Duke University, to walk me through the aspects of the 9/11 terrorist attacks that felt different from anything the government had responded to before.

David Schanzer: [00:04:56] The attacks demonstrated multiple vulnerabilities and multiple, you know, gaps and things that went wrong during the day.

Christina Phillips: [00:05:06] David was a staffer for the U.S. Senate on 9/11, and he was there for the creation of the Department of Homeland Security. He talks about some of the systems that were exploited by Al Qaida.

David Schanzer: [00:05:15] All the hijackers were able to enter the United States. Their applications were generally fraudulent, but they entered. They got visas to come into the US.

Christina Phillips: [00:05:26] I just want to pause because that's three different departments right there. Before 9/11, a person applied for a visa through the State Department, and before entering the U.S. their visa was screened by the Immigration and Naturalization Service, which was in the Justice Department. And then their property was examined by U.S. customs, which was in the Treasury Department.

Nick Capodice: [00:05:45] I think I'm starting to see where you're going here.

David Schanzer: [00:05:48] Our aviation system, of course, was shown to be extremely vulnerable that they could bring knives on planes. And we know nothing about people as they were boarding.

Nick Capodice: [00:05:59] And that's airport security, which used to be just private security agencies. When I was a kid, there was a metal detector, but that was about it. You didn't even need an I.D. to get on a plane back then. You could just walk up to the gate.

Christina Phillips: [00:06:11] Well before 9/11, there was something called the computer assisted passenger prescreening system, or CAPPS, which was shared between the Federal Aviation Administration and the FBI. It was created in the 1990s because of concerns about terrorism, so certain passengers would have their checked baggage screened for explosives. But you're right, there was minimal security screening for most passengers, and airlines had to hire their own security. The Transportation Security Administration did not exist.

David Schanzer: [00:06:40] They were shown to be a lack of real coordination between the different law enforcement and intelligence entities. The CIA knew that al Qaeda was planning some sort of spectacular attack. They didn't know where or when. Of course, a lot of that information didn't get passed on to the FBI. The FBI was tracking some people. Then they lost track of them.

Christina Phillips: [00:07:02] By the way, we covered this in more depth in our episode about the FBI. So check that out. The point is, the style of terrorist attacks planned by Al Qaida revealed just how vulnerable our country was and that the existing approach to national security wasn't sufficient and that there were some security measures that didn't exist at all.

David Schanzer: [00:07:21] So all of these issues led to this movement to create many different reforms. The most comprehensive one was to create a Department of Homeland Security that was placing all the different agencies with responsibility for the protection. The regulation, essentially the creation of borders, whether they be borders by air, by sea, by land, all into one department.

Nick Capodice: [00:07:46] But terrorism wasn't unheard of in the United States until September 11th. And it wasn't even the first terrorist attack on the World Trade Center. I remember in 1993, a terrorist detonated a bomb in a truck in the parking garage below the North Tower.

Christina Phillips: [00:08:01] That's what I think is key here. The federal government had been thinking about new threats to national security, but politicians were also thinking about everything else the economy, health care, education. There had actually been a study in 1998 called the Commission on National Security in the 21st Century that was quote "the most comprehensive review of American security since the National Security Act of 1947"

Nick Capodice: [00:08:24] Which, as you said earlier, was the last time the government had undergone a major reorganization.

Christina Phillips: [00:08:29] The study was more commonly known as the Hart Rudman Commission after lead author Gary Hart and Warren Rudman. They said that a lack of coordination across agencies in the circumstances of a terrorist attack or disaster was a huge concern. In fact, Warren Rudman, a former Republican senator from New Hampshire, talked about this exact problem in February 2001 on C-SPAN

Nick Capodice: [00:08:53] February, seven months before nine eleven.

Warren Rudman: [00:08:57] Yes, the responsibility for dealing with that kind of a disaster in this country currently is spread across 46 federal agencies, which do not have good coordination with each other. We believe that this is such a serious threat that we're not talking about creating a new bureaucracy. We're talking about probably reducing the bureaucracy by moving the functions and these units into a Homeland Security Agency, which will then be.

Nick Capodice: [00:09:25] Oh, interesting. So that term Homeland Security was being tossed around in government circles before September 11.

Christina Phillips: [00:09:32] Yeah, the term is not new. But before the September 11th attacks, the discussions around protecting the homeland were much more theoretical. I watched some of the congressional hearings about the Hart Rudman Commission, and the politicians were talking a lot about budgeting and turf. You know who's going to do what? Who is going to pay for it? What are we going to give up in order to do it? And what makes that national security threat go from something theoretical into an actual plan? And action has to do with the experience of the attacks for the public. The September 11th attacks felt new.

Darren Davis: [00:10:04] The crucial difference for nine 11 for the average American citizen was that there were innocent victims.

Christina Phillips: [00:10:11] This is Darren Davis. He's a professor of political science at the University of Notre Dame. He actually surveyed Americans right after 9-11 and asked how they were feeling in that moment about terrorist attacks and their government.

Darren Davis: [00:10:24] In the immediate aftermath. Many American citizens were thinking that there were more terrorist attacks to follow. So there's this belief that they needed to be protected.

Christina Phillips: [00:10:35] Darren talks about this trade off that people have to make between being protected from terrorism and being protected from the government's encroachment on our civil liberties.

Darren Davis: [00:10:44] When the government is attacked, when American citizens are attacked, when they've been attacked in the past. American citizens can be expected to give up their rights. Congress can be expected to concede to a more powerful president for fear of being considered unpatriotic.

Christina Phillips: [00:11:03] The media also played a role in this.

Darren Davis: [00:11:05] The media acquiescence to a more powerful president for fear of being considered unpatriotic.

Nick Capodice: [00:11:15] The coverage was relentless. There was nothing else being talked about on radio or TV or in newspapers for months, like my friend and I used to say, walking around whatever we'd see the sign that said, never forget. We're like, I don't think that's very likely. I don't think anybody's going to be forgetting this anytime soon.

Christina Phillips: [00:11:33] The media does set a tone and for example, in World War Two, when media was reporting on what was happening during the war, there were choices made like suppressing information until after an attack happened for the greater purpose of success in the war.

Nick Capodice: [00:11:49] So it's yeah, it's just so interesting in such a tenuous line, right? I'm keeping you misinformed for your safety and for the country's safety. It always leads to an ultimate question is this a good thing or not? So was that happening in the aftermath of the attacks on 9-11?

Christina Phillips: [00:12:04] Well, after 9-11, there was a lot of coverage of how the government was acting to keep people safe. There was a lot of opportunity for politicians to talk to the people. I mean, they were on the news all the time. And so there was a lot of access to the government and the government was getting a lot of access to the public through the media. Which brings me to the last big factor that made this massive reorganization possible. 9-11 had a uniting effect on the country.

Darren Davis: [00:12:29] Normally, the two political parties are deliberative. But one of the things I want to point out is that this came months after the 2000 election between Bush and Gore, and the government was extremely divided because that election had to be decided by the Supreme Court

Christina Phillips: [00:12:52] Because the decision is being taken out of the hands of the people and put into the hands of the Supreme Court. It just draws out this political tension. It was a really divisive moment, especially when it came to trusting that democratic process in supporting the incoming president

Darren Davis: [00:13:08] And politicians, and the public began to rally as expected behind George Bush.

Christina Phillips: [00:13:16] After nine 11, President Bush's approval rating rose from around 60 percent to 92 percent, including 88 percent of Democrats. This was one of the highest approval ratings for a president ever.

Nick Capodice: [00:13:28] To add to that, presidents and congresses are more effective when they have high approval ratings. They can get more done.

Darren Davis: [00:13:36] So here's the irony of all of this is that over time, as the government began to use. Its ability to protect its citizens, it began to lose support when the government began to lose support and trust declined, people were unwilling at that point to concede their civil liberties. So the immediate context of 911 is really, really important. What happened over time is also important because it shows that without trust, government can't do very much.

Nick Capodice: [00:14:12] We're going to keep exploring this new umbrella department, but first we're going to take a quick break. But before we do, if anyone is interested in all the ephemera, trivia and stuff that gets left on the cutting room floor of our episodes, Hannah and I write a biweekly newsletter called Extra Credit. It's free, and you can sign up at our website, civics101podcast.org.

Christina Phillips: [00:14:38] Civics 101 is produced by a nonprofit journalism outlet, New Hampshire Public Radio. We can only do what we do because listeners just like you chip in a few bucks, sometimes more than a few, to support our work. If you'd like to donate to the cause. Head over to Civics101podcast.org or click the link in the show notes.

Nick Capodice: [00:14:57] All right, so you've got this massive pressure from the American people to focus on terrorism. What were the first steps towards this massive consolidation to address that?

Christina Phillips: [00:15:07] The first thing President Bush did was issue an executive order creating a new Office of Homeland Security on September 20th, 2001. So this is not a department. President Bush said that this office and the director he appointed would develop a national strategy of Homeland Security and coordinate efforts across other departments.

Nick Capodice: [00:15:28] Had they plan to create this department by this time?

Christina Phillips: [00:15:30] No, no. So at this point, it's really like President Bush recognized that there's a whole bunch of agencies that are responding to terrorism, and he says, OK, I'm going to put this one guy in charge of helping communicate and organize all of these departments and agencies that are all trying to respond to terrorism in different ways.

Nick Capodice: [00:15:48] He's going to figure out a way to get them to, like, talk to each other.

Christina Phillips: [00:15:51] Yes, and and set a plan for how they'll respond in the future.

Nick Capodice: [00:15:56] So tell me about the guy they decided to put in charge.

Christina Phillips: [00:15:59] That would be Tom Ridge. He is the governor of Pennsylvania, and he started on October 8th, 2001.

Nick Capodice: [00:16:06] And what was Tom Ridge actually able to do? Could he give orders to the FBI, to the DOJ Department of Transportation just to make sure they're all now focused on this new Homeland Security strategy?

Christina Phillips: [00:16:19] So you're not the only person to ask that question.

Archival Audio: [00:16:23] If there's a bioterrorist, a large scale bioterrorist act in the future, who is in charge of the response, who has authority to make decisions related to the response, but I'm trying to find out basically is are you the boss here or are you a coordinator?

Tom Ridge: [00:16:37] If there is A well, I guess, you know, the coordinator, it's like a conductor with an orchestra. The music doesn't start playing until he taps the baton.

Christina Phillips: [00:16:47] That was a reporter at a press conference 10 days after Ridge started his official duties as director. It was in the middle of this other big attack that happened after 911, when someone mailed anthrax spores to congressional delegates and news agencies from a New Jersey post office, which ended up killing five people.

Archival Audio: [00:17:03] In just a week's time, we have had four confirmed cases of anthrax, all with media connections and a number of anthrax scares as well.

Christina Phillips: [00:17:10] In this press conference to explain how the government was responding to the anthrax attack and explaining his role as this new director of Homeland Security Tom Ridge was on stage with the head of the FBI leaders from the Department of Health and Human Services, the postmaster general, and several other people who were all responding to the anthrax attack. Ok, I promise this is related, but when I trained to be a wilderness EMT,

Nick Capodice: [00:17:33] You were a wilderness EMT.

Christina Phillips: [00:17:35] Yes, I was. It was mostly for my own safety, especially when I went on hikes. I'm very accident prone. But anyway, one thing you learn in search and rescue situations where you actually need to go out and find someone and provide medical attention in the wilderness like an injured hiker is that there needs to be an obvious hierarchy and there are people who understand what their role is. The person carrying the water, the person following the map, the person monitoring the patient, everyone there knows what they're doing and what everyone else is doing. And you've all agreed ahead of time on how it will work. And there's one person who's in charge of the whole thing, which is ideally how things could have worked with Tom Ridge in this new Office of Homeland Security.

Nick Capodice: [00:18:13] The difference here between the government and a hiker is that this is a federal emergency, but the government is still running at the same time.

Christina Phillips: [00:18:21] Yeah, and they're not used to responding to attacks like these in a coordinated way. They're writing the manual as they go and the guy in charge of making sure everything comes together. Tom Ridge is the newest person on the team.

Nick Capodice: [00:18:33] It sounds like a recipe for utter chaos.

Christina Phillips: [00:18:36] Yeah, that press conference showed that.

Tom Ridge: [00:18:37] If we think we've overlooked something, I make the call.

Nick Capodice: [00:18:45] So how do we get from an Office of Homeland Security to the creation of this massive department?

Christina Phillips: [00:18:51] It was later clear to many people that this solution an Office of Homeland Security with Tom Ridge as the director, wasn't enough. Agencies involved in national security were spread across departments with separate missions, and coordination wasn't happening as well as it needed to. In the months after the attacks on September 11th, as the government had to grapple with the major holes in national security, as the public had united around President Bush and was seeking protection, Bush announced the plan to establish a new cabinet Department of Homeland Security.

Christina Phillips: [00:19:24] I've been thinking of it like a bucket, the Homeland Security bucket, if you will. There would be twenty two agencies from other department buckets and they were going to be new agencies put in there. But that bucket didn't have everything.

Nick Capodice: [00:19:38] So Homeland Security wasn't this catch all. There's still work happening in other agencies that had to do with national security that weren't in the department.

Christina Phillips: [00:19:45] One of the major things that was not put in the Homeland Security bucket was the intelligence community, the Justice Department, FBI, CIA. So President Bush had to distinguish how the Department of Homeland Security would fit in with those other agencies.

Eileen Sullivan: [00:20:00] Dhs is primarily a law enforcement agency. It is enforcing the laws that the administration argues for in the Congress passes. And so they're not necessarily coming up with the laws. They're just but they are. They are enforcing them.

Christina Phillips: [00:20:16] This is Eileen Sullivan. She's the New York Times correspondent for the Department of Homeland Security.

President Bush: [00:20:21] Tonight, I propose a permanent cabinet level Department of Homeland Security to unite essential agencies that must work more closely together. Among them the Coast Guard, the Border Patrol, the Customs Service, immigration officials, the Transportation Security Administration and the Federal Emergency Management Agency. Employees of this new agency will come to work every morning knowing their most important job is to protect their fellow citizens.

Nick Capodice: [00:20:50] So have we reached the moment when you can explain what this whole new department looks like?

Christina Phillips: [00:20:54] Yes, it is time to pull out the giant whiteboard where I mapped out which agencies were absorbed into Homeland Security and how they fit into the purpose of the department, which President Bush very helpfully broke down into four different missions.

Nick Capodice: [00:21:08] By the way, we'll make sure to include a photo of this beast of a whiteboard on our website so you can follow along if you want at civics101podcast.org. Let's go through them one at a time. Tell me about mission number one.

Christina Phillips: [00:21:19] Mission number one is border control.

President Bush: [00:21:22] This new agency will control our borders and prevent terrorists and explosives from entering our country.

Christina Phillips: [00:21:28] Remember how I said there were four missions? Yeah, well, this first mission also has four different agencies in it focused on protection, enforcement and security at the border.

Nick Capodice: [00:21:36] So I see here the first one is U.S. Customs and Border Protection. Is that a new agency?

Christina Phillips: [00:21:42] Yes. So it's a new agency that absorbed customs and immigration agencies from the Treasury and Justice Department, as well as plant and animal inspection from the Department of Agriculture.

Nick Capodice: [00:21:51] So basically, like everything that comes across the border.

Christina Phillips: [00:21:54] Yeah, everything.

Christina Phillips: [00:21:55] The second agency is U.S. Immigration and Customs Enforcement, which is also known as ICE, and this is also a new agency. It's created specifically to protect the U.S. from cross-border crime and illegal immigration.

Nick Capodice: [00:22:07] Number three is another new agency under this border control mission the Transportation Security Administration. The TSA, which, as we already mentioned, did not exist before nine eleven.

Christina Phillips: [00:22:18] Yeah, this is the new law enforcement arm that puts airport security directly in the hands of the government.

Nick Capodice: [00:22:23] And the final part of the first mission of border control is the U.S. Coast Guard, which I always thought was part of the military.

Christina Phillips: [00:22:30] Yeah, it depends. The Coast Guard is technically overseen by the Department of Homeland Security and Peace, Peacetime and the Navy in wartime. Ok. It's not a simple system, especially considering that we've spent the majority of the 20 years since 9/11 at war.

Nick Capodice: [00:22:44] Ok, that's mission one. What's Mission two?

Christina Phillips: [00:22:46] Emergencies.

President Bush: [00:22:47] It will work with state and local authorities to respond quickly and effectively to emergencies.

Christina Phillips: [00:22:53] This is the Federal Emergency Management Administration, or FEMA, which was designed to coordinate disaster response between local and federal agencies. And it did exist before 9/11. But under the new reorganization, there was an additional focus on coordinating the response to terrorism related disasters.

Eileen Sullivan: [00:23:13] One of the original concepts of Homeland Security was that it would be the one to talk to state and local officials about about threats and about what they need to know. And so instead of getting multiple reports from different federal agencies, it should all be one.

Christina Phillips: [00:23:30] Homeland Security absorbed FEMA and FEMA absorbed the nuclear incident response team from the Department of Energy, the domestic emergency support team from the Department of Justice and the Center for Domestic Preparedness from the Justice Department and the FBI.

Nick Capodice: [00:23:43] Wow. So Mission Two: Emergency response. What about Mission Three?

Christina Phillips: [00:23:49] I'm not sure I can actually summarize this one into a couple of words. Let's just listen to President Bush.

President Bush: [00:23:54] It will bring together our best scientists to develop technologies that detect biological, chemical and nuclear weapons and to discover the drugs and treatments to best protect our citizens.

Nick Capodice: [00:24:05] I'm going to bite my tongue about the nuclear thing. Tell me, what is Bush saying here?

Christina Phillips: [00:24:10] From what I can tell, this is the research and development arm of Homeland Security, but it's basically six different things. What's it called?

Christina Phillips: [00:24:17] The Science and Technology Directorate Directorate.

Nick Capodice: [00:24:20] Can you give me some examples of what a directorate actually looks like?

Christina Phillips: [00:24:25] So one thing the directorate has done is develop technology that helps first responders communicate effectively in emergencies. The directorate also works a lot with private companies that are developing the technology. The government may want to use things like security technology for screening people and goods or threat forecasting.

Nick Capodice: [00:24:42] Ok. Mission Three: Science and Technology Directorate. What's mission four?

Christina Phillips: [00:24:46] Information analysis and infrastructure protection.

President Bush: [00:24:50] And this new department will review intelligence and law enforcement information from all agencies of government and produce a single daily picture of threats against our homeland. Analysts will be responsible for imagining the worst and planning to counter it.

Nick Capodice: [00:25:05] So cybersecurity and data gathering. But I also see the Federal Protective Service, which I don't know anything about, and the U.S. Secret Service, which I do, are also in this umbrella.

Christina Phillips: [00:25:15] Yeah, I had to look this up to the Federal Protective Service is the law enforcement that protects federal properties around the U.S. like federal courthouses and post offices.

Nick Capodice: [00:25:23] And the Secret Service, which was initially created to combat counterfeiting, provide security for the president, vice president, White House. But they still do investigate crimes against the U.S. financial system. With the reorganization, this massive Cristina, I assume it's not as simple as telling all these people, OK, you used to work for this department and now you're being moved to another department and your new mission is to protect the American people and prevent terrorists from killing Americans.

Christina Phillips: [00:25:52] One of the biggest hurdles for the department was Congress, specifically congressional oversight. See, in our system of checks and balances, one check on the power of the executive department is congressional committees. They monitor the work being done in the executive branch, and that work didn't stop when agencies were moved into a new department. Here's Eileen Sullivan, the Homeland Security correspondent for the New York Times.

Eileen Sullivan: [00:26:15] So while the agencies were pulled from their parent departments and formed DHS, the Congress didn't really give anything up.

Christina Phillips: [00:26:26] At the start, all the committees that were overseeing those individual agencies continued to oversee them under Homeland Security. It was over a hundred different committees by some count, 123.

Nick Capodice: [00:26:36] How does that number compare to other departments?

Christina Phillips: [00:26:39] Well, the Department of Defense, which is the largest cabinet department, is overseen by 30 committees. At one point, Secretary Chertoff, who was appointed in 2005, said that the department had written over 5000 briefings and attended over 300 hearings for Congress in a single year,

Nick Capodice: [00:26:55] And has that number changed since.

Christina Phillips: [00:26:57] Over the years, the number of committees have been winnowed down to around 90.

Nick Capodice: [00:27:01] So not much change at all,

Eileen Sullivan: [00:27:02] Which just shows you how difficult it is to take away turf anywhere, ever.

Christina Phillips: [00:27:08] And that kind of turf battle was bad, even when the focus of the department was still pretty narrow.

David Schanzer: [00:27:13] Well, first of all, there was really an almost exclusive laser like focus on the threat from Al Qaida and other like minded groups.

Christina Phillips: [00:27:22] That's David Schanzer, who was working in Congress on Homeland Security in the early years of the department.

David Schanzer: [00:27:27] Another nine 11 style attack where people or weaponry or explosives or weapons of mass destruction could be smuggled into into the U.S. and deployed.

Nick Capodice: [00:27:39] So what happens when time goes on and the focus isn't so laser like? What changed over the next 20 years?

Eileen Sullivan: [00:27:47] Current events have kind of defined each chapter of the department.

Christina Phillips: [00:27:51] As the department has encountered new challenges and new leadership. Its mission has evolved. There have been some major failures, like in 2005, when Hurricane Katrina struck the Gulf Coast and in each successive administration after Bush, the commander in chief, appointed heads of the department that fulfilled their agendas. You can see over time how the department's power has been applied in new ways, determined by what the government and its leader consider the biggest threats to our country. For example, President Obama made border security and cybersecurity. His major focuses during his presidency. He about doubled the number of Border Patrol agents and unmanned aerial vehicles, also known as drones, that surveyed the border.

Nick Capodice: [00:28:32] And then what happened under President Trump?

Christina Phillips: [00:28:33] He wanted to limit who was allowed to enter the United States legally or not. This included his highly controversial executive actions that restricted travel to the U.S. for citizens from several majority Muslim countries.

Archival Audio: [00:28:45] Protesters gathered outside JFK International Airport in New York and demanded the release of refugees blocked from entering the United States.

Christina Phillips: [00:28:53] And under President Trump, the federal government also enforced a family separation policy at the U.S.- Mexico border.

Archival Audio: [00:28:59] Border Patrol officials said today that since April, more than 2300 children have been separated from their families, with some held in makeshift tent cities.

Nick Capodice: [00:29:08] And what's most interesting to me is that the Department of Homeland Security was specifically created to help prevent something like 9/11 from ever happening again. But with each successive administration, it's become much more than that.

Christina Phillips: [00:29:24] This is a story of what happens when the way our government does things is held up to a microscope in a moment of violence and pain. Pair that with a public united by fear, anger and patriotism, and the outcome is a massive reorganization under a short timeline where the government is trying to protect the nation as its writing its own manual on what that actually means.

Christina Phillips: [00:29:49] The Department of Homeland Security has given us a name for our feeling of safety and security the homeland and has drawn lines around the borders of safe and dangerous. And in the 20 years since, given our leaders the tools to enforce them, from cybersecurity to law enforcement at the border, to screenings at the airport.

Christina Phillips: [00:30:17] So that's it for the Department of Homeland Security. This episode was written and produced by me, Christina Phillips, with help from You Nick Capodice and Hannah McCarthy.

Nick Capodice: [00:30:25] Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer.

Christina Phillips: [00:30:28] Music In this episode by Audiobringer, Broke for Free, KiloKaz, Martin Skeleton's Blue Dot Sessions, Makiah, UNCan, Chris Zabriskie, Jason Leonard and Yung Kartz

Nick Capodice: [00:30:40] Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Government Shutdown

Congress agrees on a budget and the President signs it. Or… not. This is what happens when we don’t have a full and final budget or a continuing resolution. This is what happens when the government shuts down and how our idea of a shutdown has changed over time. Our guest this time around is Charles Tiefer, Professor of Law at Baltimore School of Law.

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

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: Audio automatically transcribed by Sonix

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

Hannah McCarthy:
Nick?

Nick Capodice:
Yeah.

Hannah McCarthy:
I think that I have done a pretty good job of not referencing the West Wing on this show. I think I've shown a lot of restraint.

Nick Capodice:
I think that's fair.

Hannah McCarthy:
For someone who works on a show that's largely about government and still cries about a quarter of the time when I watch the West Wing. I will admit I occasionally bring up the Bartlet for America napkin, but that's it, right?

Nick Capodice:
You do bring that up, but in your defense, it's a pretty cinematic moment.

Hannah McCarthy:
It is.

Hannah McCarthy:
But today I'm I'm doing it. I'm breaking. I'm going to reference the West Wing quite a bit. Also, by the way, for anyone who has never heard of or never seen the West Wing, it is a TV show from the 90s and the early aughts about a fictional president, Jeb Bartlet, and his administration, and it has been roundly praised for being relatively true to the actual goings on of the West Wing. If pretty idealistic and sentimental, which is why I cry all the time. And the government of Myanmar reportedly used the West Wing to study how democracy works,

Nick Capodice:
Although I do know that Gerald Ford's daughter couldn't watch it, apparently because they got the layout wrong and the frequent walking talks they turn left when it's actually a right turn and they turn right when it's actually a left turn.

Hannah McCarthy:
Whatever. Nevertheless, I recently rewatched a certain episode and nick my how the world has changed.

West Wing, Season 5, Episode 8: Shutdown:
And I said No. Let's be clear, sir. You will be held responsible for shutting down the federal government, then shut it down.

Nick Capodice:
Oh, it's so dramatic.

Hannah McCarthy:
It is so dramatic. But Nick? Government shutdowns actually used to mean something. The name of that episode, by the way, for anyone who's looking for it, is just shut down. I mean, can you even imagine at this stage a United States in which a shutdown warrants this kind of music?

Nick Capodice:
I feel like nowadays the announcement of a government shutdown would elicit nothing more than like a trombone going wah-wah-wahhhh.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

And this is Civics 101, and today we are talking about the grind to a halt disaster that has taken on new meaning in recent years. The government shutdown.

Archival:
Top Democrats Nancy Pelosi and Chuck Schumer tonight. The possible shutdown less of a concern now than to the lawmakers racing to prevent a government shutdown.

Archival:
Both chambers, so we told the president we needed the government open. He resisted. In fact, he said he'd keep the government closed.

Archival:
A new poll shows more Americans blame the president and his party for this historic.

Archival:
Fortunately, Congress has not fulfilled its responsibility. It's failed to pass a budget, and as a result, much of our government must now shut down until Congress funds it again.

Nick Capodice:
I feel like government shutdowns are pretty commonplace nowadays, but I do want to point out, I don't remember hearing about them when I was a kid.

Hannah McCarthy:
OK.

Hannah McCarthy:
Yes, the thing is the government shutdowns were certainly happening as you were growing up. The public just was not paying as much attention to them.

Nick Capodice:
Why wouldn't you pay attention to the government itself shutting down?

Hannah McCarthy:
Well before we talk about what a government shutdown used to be? Let's quickly establish what it actually is.

Charles Tiefer:
A shutdown is like a disease in the budgetary process.

Hannah McCarthy:
This is Charles Tiefer, a law professor at the University of Baltimore. He spoke with the original host of Civics 101 Virginia Prescott back in 2017.

Nick Capodice:
Right. So before we stumbled into our longest shutdown ever,

Hannah McCarthy:
Correct just before the twenty eighteen shutdown. This is when we were on the verge of it and everyone was like, what does a shutdown mean again?

Charles Tiefer:
Annual spending bills are supposed to regularly follow one after the other. So as one expires, the one for the spending for the next year takes over. But if you have a giant glitch in the spending process, the one for a prior fiscal year expires and there's no new one in place. And that means the government finds it has an empty wallet without any money in it they can spend.

Nick Capodice:
In other words, a government shutdown is when the government fails to fund itself

Hannah McCarthy:
And to understand government shutdowns. Today, it helps to know where this relatively recent phenomenon came from.

Nick Capodice:
We haven't always had them.

Hannah McCarthy:
No, our government did not have its first shutdown until nineteen seventy six.

Nick Capodice:
So for the first two hundred years of our government's existence, we didn't have a single shutdown.

Hannah McCarthy:
Correct.

Hannah McCarthy:
So what on earth went wrong?

Hannah McCarthy:
All right. Before the mid 70s, the president had way more control over the budgeting process than Richard Nixon came along and took it to the next level. He refused to spend congressionally appropriated funds.

Archival:
The time has come for a new economic policy for the United States. Its targets are unemployment, inflation and international speculation. And this is how we are going to attack those targets.

Hannah McCarthy:
Congress got mad and passed the Congressional Budget and Impoundment Control Act of 1974 to gain more control, as is in the name. Nineteen seventy six came along and President Gerald Ford vetoed an appropriations bill because he felt trapped by a Democratic Congress. He wanted more control and the government shut down for 10 days.

Nick Capodice:
Did everyone freak out?

Hannah McCarthy:
Not really. Everyone assumed Congress would just figure it out, and they did. Also because we'd never had a shutdown before the government just went on spending money that it hadn't appropriated. The attorney general later decided during the Reagan administration that spending money you didn't have was illegal.

Nick Capodice:
All right. But I grew up in the Reagan administration, and I still don't remember shutdowns.

Hannah McCarthy:
Reagan had eight government shutdowns during his administration.

Nick Capodice:
Eight shutdowns.

Hannah McCarthy:
Yeah, the most of any president ever.

Nick Capodice:
Wait, we hear about Reagan's legacy all the time. Why doesn't anybody mention that he had eight shutdowns?

Hannah McCarthy:
All right. So here is the big shift that changed government shutdowns forever. Before the 1990s, government shutdowns were typically about line item quibbles. Disputes over very specific funding decisions. For example, we shut down under Carter for a full 18 days when he vetoed an appropriations bill that funded an expensive nuclear powered aircraft carrier.

President Carter:
We are going to hold down government spending, reduce the budget deficit and eliminate government waste.

Nick Capodice:
So what changed in the nineties?

Charles Tiefer:
Oh, that was a titanic clash. In 1995, a new Republican House Republican Senate had been elected in the 1994 election. So you had the first Republican Congress in ages and ages and ages had been decades since there had been a Republican House. This was led by Speaker Newt Gingrich, and he thought that this would batter down the doors of the White House and that he would make them sign bills about key spending programs, including perhaps cuts in entitlements like Medicare Medicaid.

Newt Gingrich:
He talked about letting Medicare wither on the vine. The fact is, there is a forty five percent increase in general Medicare spending that is twice the inflation rate over the next seven years.

Nick Capodice:
Ok, I do remember it being a huge deal that Republicans had control of Congress for the first time in like 40 years,

Charles Tiefer:
And President Clinton, who had lost the Congress in the 1994 election, had been elected with a strong Democratic Congress in the 1992 election and then lost it in the midterm election. He had lay low for a while. He hadn't been fighting. He hadn't been standing up visibly against the Republican Congress, but he stood up on the shutdown and said, You want to shut me down, go ahead and shut me down. I'm here to protect Medicare, Medicaid, the environment and Social Security. And he drew the line in the sand, and that was what the government closed down on that clash at the top level.

Nick Capodice:
This sounds familiar.

Hannah McCarthy:
Doesn't it, though.

West Wing, Season 5, Episode 8: Shutdown:
You will be held responsible for shutting down the federal government, then shut it down.

Hannah McCarthy:
Ok, so this major shutdown happens in the nineties and it lasts 21 days. And this is a big deal, and I don't know why you don't remember it, probably because you were a teenager and had other things on your mind. But the point is the government shuts down for a long time, and this time it is about something big. It's not some small line item, it's about political ideologies of a president

Nick Capodice:
Just like Jeb Bartlet.

Hannah McCarthy:
Just like Jeb Bartlet.

West Wing, Season 5, Episode 8: Shutdown:
We still haven't cut enough spending. I agree. I want you to cut agriculture subsidies and you want me to cut Medicaid again. You know, I'll veto any Medicaid cuts, and I know you won't give me any agriculture cuts. So here we are.

Hannah McCarthy:
And by the way, Republicans in the 90s made a bet that the public would back them in this fight, and they were wrong. It divided and hurt the Republican Party, and everyone was so wounded by this moment that for the next 17 years, we avoided another shutdown.

Nick Capodice:
What year did that episode of the West Wing come out?

Hannah McCarthy:
As two thousand and three.

Nick Capodice:
Ok. So when that episode came out, government shutdown had become a different, scarier political beast and a really big deal that we all worked hard to avoid.

Hannah McCarthy:
Yeah, even when we had budget issues which happen all the time, Congress was able to prevent shutdown by passing what's called a continuing resolution. Here's Charles Tiefer again.

Charles Tiefer:
When you have a gap, it's possible for Congress to say we don't have our act together to pass another full length appropriation bill that would be 100 pages or much more, depending on which one it is. We don't have our act to do that, but we could pass a one paragraph statement that you just continue spending for the next 30, 60 or 90 days at the rate from last year. And that's it's like a bandage over the sore and it works. During that period, the government has a wallet. There are many complaints about that situation, but it is not a shutdown,

Nick Capodice:
Which is something that President Biden signed to avoid the first government shutdown threat of his administration. But our longest shutdown, Hannah. Thirty five days under President Trump. That seemed to confirm this new normal, that government shutdowns will be the inevitable result of partisan battles between Congress and the president. And they don't seem to have any lasting political consequences. So what happened?

Hannah McCarthy:
Well, we saw our first government shutdown since Clinton during the Obama administration with this big fight over the Affordable Care Act.

Barack Obama:
About three weeks ago, as the federal government shut down the Affordable Care Act's health insurance marketplaces open for business across the

Nick Capodice:
Country. Another example of a party not getting what they wanted and gambling on a shutdown.

Hannah McCarthy:
And also, I think another example of partisanship of a Congress that does not want to compromise because before the 90s, remember, shutdowns were typically short and represented the time that it took to make a compromise on usually something smaller. And that's just not really the case anymore. So Obama had just the one shutdown, but then Trump had three, although one of them only lasted for nine hours. And now, you know, so for me, when someone at the FDA tells me, as they recently did, that they might not be able to do an interview in a week because the government might be shut down, I'm like, Yup, that sounds about right.

Nick Capodice:
All right. So government shutdown has gone from this sort of temporary hiccup, barring negotiation to a commonplace political tactic,

Hannah McCarthy:
At least in our current political climate. And for us laypeople, US and nongovernment employees who can kind of shrug it a shutdown because it isn't reflected in our paychecks. I feel like we should emphasize that he shutdown does matter to everyone. It does affect your life and we're going to find out how after the break.

Nick Capodice:
I just want to invite any listeners out there who might be interested in trivia and ephemera and deeper dives into our episode topics to subscribe to our newsletter, it's called Extra Credit. It's every two weeks, it's a goof. Next week, I'm going to have some Civics 101 trivia that we asked on air and a photo of our executive producers most hideous new pair of leggings. You can subscribe at civics101podcast.org. All right, let's get back to it. What actually happens when the government shuts down?

Hannah McCarthy:
Great question. Here's Charles Tiefer.

Charles Tiefer:
The government has various guides, legal opinions of the past, practices of the past guidelines and so forth to follow, which say some activities can continue to be funded. Sort of on an emergency basis so that the armed forces aren't left without the ability to to get ammunition. Things that must continue on an emergency basis are able to. But the government splits apart and quite a lot of its activity isn't. Emergency is just a continuing need of the public and that it can't spend on during a shutdown.

Hannah McCarthy:
And for many of us, the problem does start and end at inconvenience.

Charles Tiefer:
Among the examples so most of the IRS shuts down if you have a question and you need to get an answer, you can't get an answer. You can't call up. No one will answer the phone.

Hannah McCarthy:
Now what shuts down during a shutdown all depends on what has or has not been funded at that point. But you're usually going to see the parks services close up shop, meaning bye bye to your trip to Yellowstone. The same goes for Smithsonian museums and the National Zoo. Immigration courts typically close as if the backlog wasn't bad enough. Most of the Department of Agriculture, which monitors farming and forest regulation, shuts down. Nasa even has to power down some of its large scale instruments.

Nick Capodice:
Yeah, I didn't know that. What about stuff like regulation like food and drug inspection? Does that continue?

Charles Tiefer:
Food inspections are considered an emergency service, and they do continue

Hannah McCarthy:
And things like entitlements, meaning Medicare and Social Security, those don't need annual spending bills, so those keep churning. But there are examples of people being disastrously affected by a government shutdown.

Charles Tiefer:
I can tell you what one of the most horrible examples of what happens during a shutdown in the Health and Human Services. They have what they call trials, tryouts, tests for new drugs, new treatments and new people cannot be enrolled in a clinical trial. New patients, desperate new patients cannot be enrolled in clinical trials during a shutdown period. And so you would see saw the last time that there was a shutdown. These frantic parents saying I can't get my son or daughter into a trial. They've got one of these rare types of childhood cancers that there's no good regular treatment for. I can't imagine what insanity is going on, that they're not letting my child get enrolled.

Hannah McCarthy:
And just to be clear, in terms of who is affected by something like that, as of October, twenty twenty one. There were over a hundred thousand clinical trials registered in the United States alone. Halting that much work can have devastating consequences.

Nick Capodice:
So if Health and human services were to shut down during a pandemic, what would happen to all the research, the response and vaccine development?

Hannah McCarthy:
Well, fortunately, that's considered an emergency service. And for example, HHS created a full. What we're going to do with COVID 19 if the government shuts down plan. But keep in mind these emergency workers, these people who still show up and do the job, they are technically working without pay.

Charles Tiefer:
There is no money for them. It used to be the custom that when the shutdown was over, they would pay people retroactively. But there have been threats during recent pre shutdown periods. By some, you might call some anti-government or small government people who who say, Let's we don't want to pay the civil service, let's not pay them. At the end of the day, let's not pay retroactively at the end of the shutdown.

Nick Capodice:
So who gets to make the call in terms of what actually is an emergency service or not?

Charles Tiefer:
Well, that has gotten more organized. Few decades ago, it was pretty random. A supervisor that low levels would make the decisions. But now there's supervision on high from the White House. They keep a pretty elaborate tab to make sure there's some uniformity in what's shut down and what's not shut down so that the different cabinet departments have some kind of similar read.

Hannah McCarthy:
No matter how well a shut down is organized, it is still a shutdown. There is a civic impact. A shutdown affects how we think of our government. The public does not like it.

Charles Tiefer:
Well they all think it shows gridlock in Washington and that Washington is dysfunctional. That's something pretty common that you you see during shutdowns. And they consider it the extreme example that the government can't get its act together. The public doesn't like disorderly things like shutdown, essentially.

Nick Capodice:
Even if it is commonplace, it's the kind of thing we roll our eyes at. But expect shutdowns do endanger faith in our government, which I feel is bad for all of us in the long run.

Hannah McCarthy:
And Nick, just to bring this walk and talk full circle. This is exactly the point that that West Wing episode is trying to make that shut down is trying to make the government shuts down because there was a compromise to keep everything going and then that compromise is retracted. And Jeb Bartlett is like, do your job.

West Wing, Season 5, Episode 8: Shutdown:
We had a deal. I don't care if my approval ratings drop into single digits. I am the president of the United States, and I will leave this government shutdown until we reach an equitable agreement.

Hannah McCarthy:
This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. If you want more civics, headphones free, you can check out our book on it. It's called A User's Guide to Democracy: How America Works, and it's a quick, fun guide to these United States. You can find that wherever books are sold. Music in this episode by Xylo-Zico, Wildlight Metre, Daniel Burch and Cycle Hiccups. There is always more to be found, including our many other episodes a submission form to ask us for an episode you want and loads more at civics101podcast.org. And while you're there a reminder that while civics is free to you, it is not free to make. We exist because of your generous contributions to our show. If you're so inclined, you can click the donate button on your way to your favorite civics episode. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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State Attorneys General

We often hear them referred to as the “top cop” of a state. The attorneys general are the chief legal advisors and law enforcement officers, the ones in charge of statewide investigations and asserting state sovereignty. They sue presidential administrations and big businesses, give press conferences and advise the legislature. But what is the daily business of a state attorney general? How does the “People’s Lawyer” actually work for the people?

Our guests are former New Hampshire Attorney General Michael Delaney and New Hampshire policy experts Jackie Benson and Anna Brown.

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

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Made possible in part by the Corporation for Public Broadcasting.

After 9/11: The FBI

This is the story of where the FBI was on September 11th, 2001. This is what they did — and did not — have when it came to counterterrorism and how the tragedy of that Tuesday morning transformed the Bureau. Our guide is Sasha O’Connell, the director of the Terrorism and Homeland Security Program at American University who spent the bulk of her career working for the FBI.

Episode Segments

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AFTER 9/11: FBI

This mp3 audio file was automatically transcribed by Sonix. This transcript may contain errors.

Hannah McCarthy:
Hey, there a quick favor. We are conducting an audience survey, and we would be really grateful if you could take just a few minutes to answer it. Please visit Survey.PRX.Org/Civics101 to take the survey today. That survey.prx.org/Civics101. Thanks.

Hannah McCarthy:
September 11 2021 marks the 20th anniversary of a tragedy that forever and profoundly changed the United States of America. Some of you who live in the United States and are listening right now witnessed and experienced those changes. Some of you have never lived in a world without them. Over the course of this year, Civics 101 is going to be exploring and interrogating those changes. How did our government, our civil liberties, our security and society pivot following the attacks of that Tuesday morning?

Nick Capodice:
This will be an ongoing series that you'll hear intermittently throughout the year. After all, the government and societal effects of 9/11 are not isolated to one date or one anniversary. They've been happening for 20 years and will continue to do so. So every once in a while, you'll encounter an episode from this series in your feed. And we also want to hear from you as we work through it. How has your relationship to the U.S. government and its leaders changed, if at all, in the 20 years since 9/11? Send a voice memo to Civics101@Nhpr.org. We hope to use it in these episodes.

Sasha O'Connell:
And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room, so the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind of crazy. And it was just pouring off the fax machine and the banks were sending us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice,

Hannah McCarthy:
And that is the voice of Sasha O'Connell, a woman who spent most of her career in various roles at the FBI because we're starting this Civics 101 series with a look inside the world of the people on the inside. The Federal Bureau of Investigation is an organization so synonymous with government its agents have long been referred to as quote G-men.

Nick Capodice:
I never knew that the G in G-men stands for government men?

Hannah McCarthy:
Yeah, government men.

Nick Capodice:
Totally new to me.

Hannah McCarthy:
For those who don't know, the FBI is also now synonymous with counter terrorism. That is the bureau's explicitly stated number one priority, one of its best resourced missions. But it wasn't always that way at the FBI. So this is the story of how it happened, how four planes hijacked by the terrorist group Al Qaeda, three United States targets and nearly 3000 deaths -- the tragedy of September 11th, 2001 -- changed the FBI.

Sasha O'Connell:
I actually joined right into the counterterrorism program what was then the International Terrorism Operations section? I joined in '98.

Hannah McCarthy:
Right now, Sasha is the director of the Terrorism and Homeland Security Policy Program at American University. But in September of 2001, she was working for the FBI.

Nick Capodice:
Before we go any further, Hannah, can you tell me what is the FBI? What do they do?

Hannah McCarthy:
The FBI investigates federal crimes. Now, the bureau itself lists those crimes in order of priority. We talked about priorities, right? And domestic and international terrorism is number one. There's also international counterintelligence.

Nick Capodice:
Is that meaning like spies?

Hannah McCarthy:
Yeah, meaning spies. The FBI is supposed to prevent international spies from doing their job in international cyber attacks from happening. And cybercrime, by the way, is on that list of priorities, as is combating public corruption, white collar and violent crime and protecting civil liberties. They also handle stuff like organized and drug related crime and health care fraud. And then the FBI works with the attorney general of the United States to get those crimes prosecuted.

Nick Capodice:
You said that the FBI's job is in part, protecting civil liberties.

Hannah McCarthy:
Yeah, they're supposed to be upholding the Constitution in their daily dealings.

Nick Capodice:
Ok, so the elephant in the room, if we're talking about the FBI and September 11th, it's the degree to which those civil liberties were or were not upheld after the attacks.

Hannah McCarthy:
This is a very important point. I'm glad you brought this up. We will absolutely be addressing the rise of surveillance and how the U.S. government impinged on privacy, among other rights, following September 11th, 2001. That will come in other Civics 101 episodes, for example, about acts of Congress that resulted in some fairly carte blanche interpretations of surveillance powers. But today, for the purposes of this episode, we are looking at where the FBI was on counterterrorism pre-9/11 and how those attacks changed it.

Nick Capodice:
Ok, fair enough. Got it. So back to the place of the FBI in the federal government. It's part of the DOJ, the Department of Justice, right?

Hannah McCarthy:
Yeah, that's the close work with the attorney general, right? That's who they work with to prosecute these crimes.

Nick Capodice:
Ok, so that makes it an executive branch department, which is run in the end by the president.

Hannah McCarthy:
And it is through the Presidential Management Fellows program, which is designed to place grad students in federal jobs. That Sasha O'Connell, our guest today, ended up at the FBI in the International Terrorism Operations section

Sasha O'Connell:
In the years before September 11th, there was a real strong initiative underway at the FBI. Not only was the FBI working terrorism cases with partners, but also there was a restructuring in order to focus on terrorism and a whole strategic planning process called Max Cap 05. That was ongoing, and I had the extraordinary opportunity, as one does as a young person in government to get to staff the working group that was sorting through, leading, building, assessing the program and building that strategic plan. So I was knee deep in that kind of strategic view of the terrorism program at the FBI on the lead up to 9/11.

Nick Capodice:
So if the FBI was working on this strategic plan to deal with international terrorism, how does something as big as all the attacks on September 11th get through?

Hannah McCarthy:
That is the sort of perennial question of 9-11, not just when it comes to the FBI, but when it comes to all levels of government. There was a lot of scrutiny of the FBI following. This tragedy, because the question was, how could this have happened? And can the FBI really have been paying close attention to international terrorism if this did happen?

Sasha O'Connell:
It couldn't be possible that the bureau was both focused and this happened, right? That couldn't be possible in people's minds. And in fact, it's much more nuanced than that. And that is possible, right? There was a contingent of the government that was extraordinarily focused on al Qaeda, including this program at the FBI before 9/11. But that's not enough, right? And one of the big lessons in my mind of 9/11 is, you know, having a small group looking around the corner, having a small group, you know, focused on a threat is is not enough.

Nick Capodice:
While we're on the subject of how this all happened. I actually remember reading the 9/11 Commission Report, which is something that Congress and President George Bush requested after 9/11 to figure out what went wrong. It is tremendously well written. I remember that one of the major findings of the report was the FBI and other government agencies were not sharing information, and that likely contributed to the success of these attacks on September 11th.

Sasha O'Connell:
We obviously had the 9/11 commission, which is an amazing if people haven't read it and you're really interested in what happened and where the gaps were. I mean, they do an incredible job. They did an incredible investigation, and the report is an incredible resource to understand what was happening.

Hannah McCarthy:
This report takes a look at a 1998 FBI plan to combat terrorism and says, and this is the actual wording here, "The plan did not succeed." The report determines that the FBI was under-resourced. There were twice as many agents at the time, working drug enforcement as there were working counterterrorism. The training was insufficient. The information systems were lacking. They didn't have enough translators in key languages. The unit that Sasha was working on in 2001, Max Cap 05, was designed to increase FBI counterterrorism capability to maximum capacity feasible by 2005. In September of 2001, almost every FBI field office was considered to be operating below maximum capacity.

Sasha O'Connell:
It was a Tuesday morning and it was bright and sunny, and yes, it was September 11th and I got married on November 17th in Boston, so we were knee-deep in wedding planning and I had a dress fitting on the South Shore that afternoon, so I was supposed to leave work early. I remember what I was wearing and so I was pretty much focused on that that day, right? And not on work. I was in the Boston office, as I mentioned, and I didn't know a lot of people in the Boston office because I was up from headquarters and sort of placed in a pod, you know, a cubicle in the corner doing my work. And I just said hello to a few people over the summer, but I didn't really have relationships. So what happened actually in that morning was an agent who was sitting couple sort of rows away from me in the cubicles, had a little tiny TV in his cubicle at the time. We didn't have what we now have everywhere, right, which is big screen TVs and every every floor of the FBI. And he stood up. I remember and said, something's happening.

News archival:
And I looked up and all of a sudden a plane smashed right there into the center of the World Trade Center.

Nick Capodice:
And Boston was a particularly significant place to be on this day because both planes that hit the Twin Towers came from Logan Airport in Boston.

Sasha O'Connell:
I remember looking out the window once we started to put some of the pieces together because at the time it since changed. The Boston office of the FBI was actually in a private commercial building, but the federal building was right across the street. And I have a very distinct memory of thinking a plane is going to hit the building across the street, right? That's what's going to happen.

Hannah McCarthy:
There's some chaos and uncertainty. But eventually, Sasha remembers hearing from headquarters in Washington, D.C., and basically being told to get to work on this. After all, she is on the counterterrorism team,

Sasha O'Connell:
And I walked up to the executive floor and there was the leadership team was standing in the hallway talking and I said, My name is Sasha. I'm here from the counterterrorism division at headquarters. And they said, Go to the basement, get a car and go to the airport. And I said, I'm not an agent. And they said, Great, get in the command post,

Nick Capodice:
Get in the car, go to the airport. What exactly is supposed to be going on on the FBI agent side of things in a case like this and folks

Sasha O'Connell:
Say, I want to work for the FBI or I want to be an FBI agent, like, what do you think they do right? And the truth is, most of what FBI agents do is talk to people. They interview people. Right. So a lot of what was happening on that day, and this is when they said to me, go to the airport. They thought it was an agent. It's go start talking to people, right? That's how you collect human intelligence is you talk to people, right? So you talk to people at the airport. What happened, how they got on the plane? You talk to the baggage handlers, right? And you come back. And then there's a process that the FBI called setting a lead.

Nick Capodice:
Sasha is talking about gathering intelligence. I always thought intelligence gathering was the purview of the CIA, the Central Intelligence Agency.

Hannah McCarthy:
It absolutely is. Yes, both the CIA and the FBI are part of the intelligence community, although the CIA is prohibited from collecting information regarding quote U.S. persons. Did you know that?

Nick Capodice:
No, I did not.

Hannah McCarthy:
The CIA is also not empowered as a law enforcement agency the same way that the FBI is. But to that point, prior to 9/11, the CIA was the lead against Al Qaeda. And when this attack happens on American soil, the FBI has to prioritize its focus on that terrorist group as well. And these agents cannot leave any stone unturned in these cases, even in the chaos following the attacks. These agents had to figure out where physically to go, what specifically to ask in order to clarify what happened that day.

Sasha O'Connell:
What happened? Where did this bag come from? Who handled it right? They found the car in the parking lot. You've got to talk to the parking lot attendant, right? You're going to find litter in the car, then you're going to go to the hotel where the receipt was in that car. All these things happen on 9/11, right?

Nick Capodice:
When Sasha says they found a car in a parking lot. What are they talking about? Was it a suspect's car? Was it like one of the hijackers car at the airport?

Hannah McCarthy:
Yes. Agents found both the car and the luggage of the individual, later considered to be the ringleader of the 9/11 attacks. And they found these at Logan Airport when they went to the airport. Again, Boston is a central element in the investigation on day one.

Nick Capodice:
What was the luggage they found?

Hannah McCarthy:
Mohamed Atta's luggage. That's the ringleader. Just as an aside, his suitcase was only discovered because it never made it onto the plane in Boston after his connecting flight. Totally incidental. I feel like details like this really illustrate the significance of minutia in an FBI investigation. The suitcase and the car were full of evidence. And, you know, once the agents find this evidence, they have to pass it on. They coordinate. They follow leads and they put the story together. And this is happening not just in Boston or around the country, but around the world.

Sasha O'Connell:
You can literally picture just the world lighting up with people talking to people and. Trying to figure out what's going on. Similarly, using other intelligence methods right to do that, whether that's sort of a digital collection, opportunities, right, but it's information gathering is a huge piece of kind of what's going on. And then there's a lot of capacity back, whether it's in a field office or at headquarters trying to put those pieces together because this whole world is getting laid up and all this information is coming in and a you have to coordinate all those people and be you then have to coordinate all that intelligence, right? Which is just a fancy word for facts and information that are coming in.

Hannah McCarthy:
And the coordination part, that is Sasha on September 11th. She's in the command post and evidence is pouring in.

Sasha O'Connell:
We started getting markers and whiteboards and made sure the fax machine was turned on and someone brought in an extra phone.

Hannah McCarthy:
Sasha mentioned that today FBI field offices have these big, beautiful conference rooms with loads of screens and resources. But on 9/11, she is in a windowless room with just a phone and a fax machine. This is before this anti-terrorism effort was majorly resourced.

Sasha O'Connell:
And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room that were printed out and we could see and there was paper all the way around the room. And by the end of the day, my two biggest memories were one that the fax machine was right behind me. So I was sitting at a conference table and the fax machine was right behind my back. And paper was just pouring off the fax machine because airlines and banks. So the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind of crazy. And it was just pouring off the fax machine and the banks were sending us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Nick Capodice:
What's up at the banks? The airlines thing makes perfect sense, but how are the banks connected

Hannah McCarthy:
At this stage in counterterrorism in this country, U.S. banks were already expected to block any Al Qaeda transactions and seize their funds. But the hijackers of 9/11 made extensive use of U.S. banks. The 9/11 Commission Report concluded that nothing these attackers did would have tipped off the banks, but still after those attacks, anything is potential evidence anyway. Sasha is processing all of this incoming information.

Sasha O'Connell:
My job is to man that phone and talk to headquarters, figure out, you know, understand what they needed from the Boston office. And that's how we work 12 hour shifts for the next oh, about eight weeks. And I did leave sort of duty in the command post shortly before my wedding.

Nick Capodice:
The pressure at this moment must have been incredible, especially for someone who, as you said earlier, was quite young and quite new to the bureau. Did Sasha say what it was like for her during those two months?

Sasha O'Connell:
Day one, it was just it's a blessing and a curse, right? You're so busy you don't have any time to think, and it's wonderful because you're busy and you feel like you're contributing. But I wasn't thinking I was trying to survive and solve problems, right? And find the paper or clean up the fax machine or find George and run down a lead. There was no time to think. We didn't even have a TV in the command post at the time, so it's something I didn't realize. I think I mentioned to you that the first anniversary 9/11, I saw the pictures really for the first time in the video, right? I hadn't seen them. We were too busy just trying to get things sorted out or get agents to the airport, get the evidence back, you know? And again, I'm just trying to keep lists and keep organized.

Nick Capodice:
It's just you would think that someone who is so closely involved with the investigation would be inundated with images and footage and news the way that we in the U.S. were every waking moment.

Hannah McCarthy:
You know, I think it would have been different had Sacha been in a modern command post surrounded by televisions and news analysis. Instead, it was her and a phone and a fax machine. And this constant drive to figure out the who, what, when, where and why of September 11th.

Nick Capodice:
All right. Speaking of the modern command post versus the FBI that Sasha worked for in 2001, can we get into the changes that happened after the September 11th attacks? You had people in the FBI who were pretty clear on the fact that they needed to beef up counterterrorism efforts. So did they?

Hannah McCarthy:
Sasha left the FBI in 2002 to work for the private sector. She came back in 2007, and when she did, the Bureau had reassessed its whole approach to counterterrorism. And the lack of resources that was no longer a problem for the counterterrorism effort.

Sasha O'Connell:
The counterterrorism program is resourced, so all the things we were asking for before 9/11 training translation analysis, right when we did that assessment, there were gaps. We knew there were gaps. We were asking for it in the budget and we weren't getting it from Congress, right? It just wasn't coming. And by the time I got back, like amazing, like we have all those things right that had happened. And then the other interesting thing that had happened and I never worked in the counterterrorism division after, but it was the head of strategy. So I got to work a little bit with all the divisions for a time is that before 9-11, the counterterrorism division operated much like the criminal division in that cases were more decentralized. So a special agent in charge of a field office like in New York, I'm one of the largest field offices. We're really responsible as they are on the criminal side for their cases. And there was sort of programmatic oversight at headquarters. And, you know, obviously the most sensitive cases got briefed to the director or whoever needed for legal review. But fundamentally, there was kind of this decentralized approach to case management during the time that I was white and really since the counterterrorism program swung the other direction. One hundred and eighty degrees cases are really centrally managed out of FBI headquarters.

Hannah McCarthy:
Prior to this, FBI field offices were fairly autonomous operations. And that autonomy ended with 9/11 and this new approach to counterterrorism. A lot of people actually blamed this decentralized element of the FBI for some of the failures that allowed 9/11 to happen. And when Sasha returned to the FBI, de-centralized was a thing of the past.

Nick Capodice:
I heard a lot about Joint Terrorism Task Forces, were these part of the restructuring.

Hannah McCarthy:
Yeah, but Joint Terrorism Task Forces had been around since nineteen eighty. They started in New York City on nine eleven. We had thirty five of them in the U.S. These were locally based investigators and analysts who are in various states and supposed to watch out for terrorist activity in the U.S.. Now, after 9/11, the FBI almost overnight nearly doubled these forces. They had 56 forces in the days after 9/11. We now have 104. The FBI also established a national joint terrorism task force at headquarters in D.C., which coordinates all of these local task forces. Again, this is all part of this big centralization movement. And the bureau also reassessed how it gathered and reported information. Part of the problem leading up to nine eleven was communication and coordination across the bureau itself and with other agencies.

Sasha O'Connell:
There had been a major initiative called SET, which looked at and then realigned the way the FBI did intelligence intake collection and reporting. So it was really about the business process and the prioritization of intelligence collection and shoring up a lot of those gaps, frankly, that existed before 9/11. So that was a huge kind of it's almost like a strategic change management initiative that Director Mueller ran to shore up that intelligence function of the FBI and further professionalize the intelligence workforce to be able to drive that to the next level. So that was huge.

Hannah McCarthy:
And as the FBI is reassessing and reorganizing itself, there is a larger governmental push to think about separating the intelligence gathering and national security mission of the FBI from the criminal investigation and domestic law enforcement mission. But the FBI itself did not want this, and Sasha believes the reason the bureau remained unified is because they had been attempting to do counterterrorism work before 9/11. The will was in place, even if the resourcing was not.

Sasha O'Connell:
Yes, there was a lot again, as you mentioned, kind of push right at the beginning of holding folks accountable. And part of that led to let's split up the FBI. Some of the work that I had been involved in in terms of Max Cap 05 and explaining that there was a vision for kind of pulling this all together and building maximum capacity. I think and I got this was my sort of opinion sort of helped turn those tides, and a lot of work was done by a lot of people who are involved in our partner organizations to say that's not the way to go in the United States, right? You don't want a domestic intelligence agency, right? Focus on U.S. citizens, right? NSA is focused externally. CIA is focused externally. We don't want a domestic intelligence function split off from the FBI. We want our domestic intelligence to the extent it happens to be tied closely to our enforcement, which is all governed by the same set of domestic constitution, laws and everything else, and ultimately the bureau through a lot of work, a lot of people and a lot of folks, for example, on the Hill who got educated and understood this, and the 9-11 commission findings kept the bureau together, and still today the FBI has again that kind of national security, intelligence function and all the traditional criminal responsibilities that we think of with federal law enforcement.

Nick Capodice:
So should we be thinking of the FBI post-9/11 as the ones in charge, the front line of defense?

Sasha O'Connell:
So sort of, yes and no, I would say so. Just to clarify that the FBI is the lead federal agency right for counterterrorism. There's no question about that domestically, right? There's a lot of work going on overseas because a lot of the threats don't start here, right? And so other U.S. government and foreign government partners are doing that work globally. And then in the United States, you know, there's only I think today around 14000 FBI agents right to cover the world. And they they are global. You know, there's 18000 state local law enforcement organizations, right? I think there's like thirty six thousand police officers in New York City. So actually, in any instance, it's going to be state and local law enforcement. That's truly the front line, right? There just aren't the number of FBI agents right to to be out doing the interviewing. We're talking about the kind of human intelligence collection that's required to kind of understand what's happening with these threats.

Hannah McCarthy:
Now, as we know, the change that happened after 9/11 is this laser focus on a priority that was just not being sufficiently resourced before the attacks in two thousand one. But even with that necessary funding and staffing and focus that came out of 9/11, there still aren't enough agents to handle everything like Sasha says. So if you keep thinking of the FBI as this agency that worked to centralize it is the coordinating force among all of these disparate law enforcement agencies working counterterrorism in the U.S..

Sasha O'Connell:
And for the United States, the FBI is kind of the quarterback, maybe, right? You know, at the end of the day, the policy is set by the White House to right when it comes to strategy. When it comes to investigations, though, that's the FBI's calls today. Like in a lot of programs, the counterterrorism program is run in a task force model where you know you can have private sector organizations, you can have foreign partners, you can have all the different USG federal partners, you can have state and local law enforcement. And the FBI coordinates that task force.

Nick Capodice:
And you explicitly said to me earlier that we are not focusing on a shift in surveillance or the intense scrutiny the FBI came under in the wake of these changes after 9/11. But I do have to ask, like, did Sasha talk about that at all? Like that the attacks are not going to just change the structure of the FBI, but the whole idea of security in the United States and not just security like civil liberties, surveillance, nationalism, xenophobia, Islamophobia. Were there any signs to the people on the inside of what was going to come next?

Sasha O'Connell:
I do remember I don't know how long it was after, but after things were more in routine, it was probably at least a month out. I remember sitting in the command post one day, and one of the things that happened in the command post is that we answered the phone when the public called, and I did some of that too, when the headquarters line was quiet. And I remember taking a call where the caller said, You know, I want to report to the FBI because these people are taking pictures of a bridge. And I don't know what language they're speaking, but it's not English. And I was like, Oh boy, we got a problem, right? And things are going to change like this is. And so that was when I started to think, Oh boy, what is happening out there, right? And I was starting to think about backlash and hate crimes. I started to think about security and privacy changing.

Hannah McCarthy:
So many people have only ever known the United States as this place of super heightened security, with a hyper focus on terrorist groups both domestic and international. A place ostensibly under constant threat and an understanding that the government is hyper focused on that threat. And that leaves everyone more vulnerable to government suspicion to surveillance. This is just the way things are in the United States today. But I do think it's important to ask why. I think it's important to scrutinize that the FBI is the executive intelligence and law enforcement agency in the U.S., and its primary, an overwhelming focus is terrorism. And that focus trickles down to the everyday experience of people in this country and around the world. That is what 9/11 did to the FBI.

This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie sees all. If you want a nearly as portable and twice as quiet civics lesson in your back pocket, Nick and I wrote a book on it. It's called A User's Guide to Democracy: How America Works. If you liked this episode of Civics 101, or if you want us to go deeper and do more, consider making a donation to the show at civics101podcast.org. We are supported by You. You are the reason we're able to keep going and do better all the time. And while you're there, you can find our entire backlog of episodes -- we have many -- and submit your own questions about American government. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Transcript

Hannah McCarthy: [00:00:00] Hey, there a quick favor. We are conducting an audience survey, and we would be really grateful if you could take just a few minutes to answer it. Please visit Survey.PRX.Org/Civics101 to take the survey today. That survey.prx.org/Civics101. Thanks.

Hannah McCarthy: [00:00:19] September 11 2021 marks the 20th anniversary of a tragedy that forever and profoundly changed the United States of America. Some of [00:00:30] you who live in the United States and are listening right now witnessed and experienced those changes. Some of you have never lived in a world without them. Over the course of this year, Civics 101 is going to be exploring and interrogating those changes. How did our government, our civil liberties, our security and society pivot following the attacks of that Tuesday morning?

Nick Capodice: [00:00:56] This will be an ongoing series that you'll hear intermittently throughout [00:01:00] the year. After all, the government and societal effects of 9/11 are not isolated to one date or one anniversary. They've been happening for 20 years and will continue to do so. So every once in a while, you'll encounter an episode from this series in your feed. And we also want to hear from you as we work through it. How has your relationship to the U.S. government and its leaders changed, if at all, in the 20 years since 9/11? Send a voice memo to Civics101@Nhpr.org. We hope [00:01:30] to use it in these episodes.

Sasha O'Connell: [00:01:47] And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room, so the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind [00:02:00] of crazy. And it was just pouring off the fax machine and the banks were sending us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Hannah McCarthy: [00:02:20] I'm Hannah McCarthy.

Nick Capodice: [00:02:21] I'm Nick Capodice,

Hannah McCarthy: [00:02:22] And that is the voice of Sasha O'Connell, a woman who spent most of her career in various roles at the FBI because [00:02:30] we're starting this Civics 101 series with a look inside the world of the people on the inside. The Federal Bureau of Investigation is an organization so synonymous with government its agents have long been referred to as quote G-men.

Nick Capodice: [00:02:47] I never knew that the G in G-men stands for government men?

Hannah McCarthy: [00:02:50] Yeah, government men.

Nick Capodice: [00:02:51] Totally new to me.

Hannah McCarthy: [00:02:52] For those who don't know, the FBI is also now synonymous with counter terrorism. That is the bureau's [00:03:00] explicitly stated number one priority, one of its best resourced missions. But it wasn't always that way at the FBI. So this is the story of how it happened, how four planes hijacked by the terrorist group Al Qaeda, three United States targets and nearly 3000 deaths -- the tragedy of September 11th, 2001 -- changed the FBI.

Sasha O'Connell: [00:03:27] I actually joined right into the counterterrorism program what [00:03:30] was then the International Terrorism Operations section? I joined in '98.

Hannah McCarthy: [00:03:34] Right now, Sasha is the director of the Terrorism and Homeland Security Policy Program at American University. But in September of 2001, she was working for the FBI.

Nick Capodice: [00:03:45] Before we go any further, Hannah, can you tell me what is the FBI? What do they do?

Hannah McCarthy: [00:03:49] The FBI investigates federal crimes. Now, the bureau itself lists those crimes in order of priority. We talked about priorities, right? And domestic and international [00:04:00] terrorism is number one. There's also international counterintelligence.

Nick Capodice: [00:04:05] Is that meaning like spies?

Hannah McCarthy: [00:04:07] Yeah, meaning spies. The FBI is supposed to prevent international spies from doing their job in international cyber attacks from happening. And cybercrime, by the way, is on that list of priorities, as is combating public corruption, white collar and violent crime and protecting civil liberties. They also handle stuff like organized [00:04:30] and drug related crime and health care fraud. And then the FBI works with the attorney general of the United States to get those crimes prosecuted.

Nick Capodice: [00:04:38] You said that the FBI's job is in part, protecting civil liberties.

Hannah McCarthy: [00:04:42] Yeah, they're supposed to be upholding the Constitution in their daily dealings.

Nick Capodice: [00:04:48] Ok, so the elephant in the room, if we're talking about the FBI and September 11th, it's the degree to which those civil liberties were or were not upheld after the attacks.

Hannah McCarthy: [00:04:59] This is [00:05:00] a very important point. I'm glad you brought this up. We will absolutely be addressing the rise of surveillance and how the U.S. government impinged on privacy, among other rights, following September 11th, 2001. That will come in other Civics 101 episodes, for example, about acts of Congress that resulted in some fairly carte blanche interpretations of surveillance powers. But today, for the purposes of this episode, we are looking at where the FBI [00:05:30] was on counterterrorism pre-9/11 and how those attacks changed it.

Nick Capodice: [00:05:38] Ok, fair enough. Got it. So back to the place of the FBI in the federal government. It's part of the DOJ, the Department of Justice, right?

Hannah McCarthy: [00:05:48] Yeah, that's the close work with the attorney general, right? That's who they work with to prosecute these crimes.

Nick Capodice: [00:05:53] Ok, so that makes it an executive branch department, which is run in the end by the president.

Hannah McCarthy: [00:05:59] And it [00:06:00] is through the Presidential Management Fellows program, which is designed to place grad students in federal jobs. That Sasha O'Connell, our guest today, ended up at the FBI in the International Terrorism Operations section

Sasha O'Connell: [00:06:16] In the years before September 11th, there was a real strong initiative underway at the FBI. Not only was the FBI working terrorism cases with partners, but also there was a restructuring in order to focus on terrorism [00:06:30] and a whole strategic planning process called Max Cap 05. That was ongoing, and I had the extraordinary opportunity, as one does as a young person in government to get to staff the working group that was sorting through, leading, building, assessing the program and building that strategic plan. So I was knee deep in that kind of strategic view of the terrorism program at the FBI on the lead up to 9/11.

Nick Capodice: [00:06:56] So if the FBI was working on this strategic plan to deal with [00:07:00] international terrorism, how does something as big as all the attacks on September 11th get through?

Hannah McCarthy: [00:07:07] That is the sort of perennial question of 9-11, not just when it comes to the FBI, but when it comes to all levels of government. There was a lot of scrutiny of the FBI following. This tragedy, because the question was, how could this have happened? And can the FBI really have been paying close attention to international [00:07:30] terrorism if this did happen?

Sasha O'Connell: [00:07:33] It couldn't be possible that the bureau was both focused and this happened, right? That couldn't be possible in people's minds. And in fact, it's much more nuanced than that. And that is possible, right? There was a contingent of the government that was extraordinarily focused on al Qaeda, including this program at the FBI before 9/11. But that's not enough, right? And one of the big lessons in my mind of 9/11 is, you know, having a small group looking around [00:08:00] the corner, having a small group, you know, focused on a threat is is not enough.

Nick Capodice: [00:08:05] While we're on the subject of how this all happened. I actually remember reading the 9/11 Commission Report, which is something that Congress and President George Bush requested after 9/11 to figure out what went wrong. It is tremendously well written. I remember that one of the major findings of the report was the FBI and other government agencies were not sharing information, and that likely [00:08:30] contributed to the success of these attacks on September 11th.

Sasha O'Connell: [00:08:33] We obviously had the 9/11 commission, which is an amazing if people haven't read it and you're really interested in what happened and where the gaps were. I mean, they do an incredible job. They did an incredible investigation, and the report is an incredible resource to understand what was happening.

Hannah McCarthy: [00:08:46] This report takes a look at a 1998 FBI plan to combat terrorism and says, and this is the actual wording here, "The plan did not succeed." The report determines that the FBI [00:09:00] was under-resourced. There were twice as many agents at the time, working drug enforcement as there were working counterterrorism. The training was insufficient. The information systems were lacking. They didn't have enough translators in key languages. The unit that Sasha was working on in 2001, Max Cap 05, was designed to increase FBI counterterrorism capability to maximum capacity feasible [00:09:30] by 2005. In September of 2001, almost every FBI field office was considered to be operating below maximum capacity.

Sasha O'Connell: [00:09:45] It was a Tuesday morning and it was bright and sunny, and yes, it was September 11th and I got married on November 17th in Boston, so we were knee-deep in wedding planning and I had a dress fitting on the South Shore that afternoon, so I was supposed to leave work early. I remember [00:10:00] what I was wearing and so I was pretty much focused on that that day, right? And not on work. I was in the Boston office, as I mentioned, and I didn't know a lot of people in the Boston office because I was up from headquarters and sort of placed in a pod, you know, a cubicle in the corner doing my work. And I just said hello to a few people over the summer, but I didn't really have relationships. So what happened actually in that morning was an agent who was sitting couple sort of rows away from me in the cubicles, had a little tiny TV in his cubicle at the time. [00:10:30] We didn't have what we now have everywhere, right, which is big screen TVs and every every floor of the FBI. And he stood up. I remember and said, something's happening.

News archival: [00:10:40] And I looked up and all of a sudden a plane smashed right there into the center of the World Trade Center.

Nick Capodice: [00:10:46] And Boston was a particularly significant place to be on this day because both planes that hit the Twin Towers came from Logan Airport in Boston.

Sasha O'Connell: [00:10:55] I remember looking out the window once we started to put some of the pieces together because [00:11:00] at the time it since changed. The Boston office of the FBI was actually in a private commercial building, but the federal building was right across the street. And I have a very distinct memory of thinking a plane is going to hit the building across the street, right? That's what's going to happen.

Hannah McCarthy: [00:11:12] There's some chaos and uncertainty. But eventually, Sasha remembers hearing from headquarters in Washington, D.C., and basically being told to get to work on this. After all, she is on the counterterrorism team,

Sasha O'Connell: [00:11:26] And I walked up to the executive floor and there was the leadership [00:11:30] team was standing in the hallway talking and I said, My name is Sasha. I'm here from the counterterrorism division at headquarters. And they said, Go to the basement, get a car and go to the airport. And I said, I'm not an agent. And they said, Great, get in the command post,

Nick Capodice: [00:11:43] Get in the car, go to the airport. What exactly is supposed to be going on on the FBI agent side of things in a case like this and folks

Sasha O'Connell: [00:11:52] Say, I want to work for the FBI or I want to be an FBI agent, like, what do you think they do right? And the truth is, most of what FBI agents do is talk to people. They interview people. Right. [00:12:00] So a lot of what was happening on that day, and this is when they said to me, go to the airport. They thought it was an agent. It's go start talking to people, right? That's how you collect human intelligence is you talk to people, right? So you talk to people at the airport. What happened, how they got on the plane? You talk to the baggage handlers, right? And you come back. And then there's a process that the FBI called setting a lead.

Nick Capodice: [00:12:19] Sasha is talking about gathering intelligence. I always thought intelligence gathering was the purview of the CIA, the Central Intelligence Agency.

Hannah McCarthy: [00:12:27] It absolutely is. Yes, both the CIA [00:12:30] and the FBI are part of the intelligence community, although the CIA is prohibited from collecting information regarding quote U.S. persons. Did you know that?

Nick Capodice: [00:12:40] No, I did not.

Hannah McCarthy: [00:12:41] The CIA is also not empowered as a law enforcement agency the same way that the FBI is. But to that point, prior to 9/11, the CIA was the lead against Al Qaeda. And when this attack happens on American soil, the FBI has to prioritize its focus on that terrorist [00:13:00] group as well. And these agents cannot leave any stone unturned in these cases, even in the chaos following the attacks. These agents had to figure out where physically to go, what specifically to ask in order to clarify what happened that day.

Sasha O'Connell: [00:13:18] What happened? Where did this bag come from? Who handled it right? They found the car in the parking lot. You've got to talk to the parking lot attendant, right? You're going to find litter in the car, then you're going to go to the hotel [00:13:30] where the receipt was in that car. All these things happen on 9/11, right?

Nick Capodice: [00:13:33] When Sasha says they found a car in a parking lot. What are they talking about? Was it a suspect's car? Was it like one of the hijackers car at the airport?

Hannah McCarthy: [00:13:42] Yes. Agents found both the car and the luggage of the individual, later considered to be the ringleader of the 9/11 attacks. And they found these at Logan Airport when they went to the airport. Again, Boston is a central element in the investigation on day one. [00:14:00]

Nick Capodice: [00:14:00] What was the luggage they found?

Hannah McCarthy: [00:14:02] Mohamed Atta's luggage. That's the ringleader. Just as an aside, his suitcase was only discovered because it never made it onto the plane in Boston after his connecting flight. Totally incidental. I feel like details like this really illustrate the significance of minutia in an FBI investigation. The suitcase and the car were full of evidence. And, you know, once the agents find this [00:14:30] evidence, they have to pass it on. They coordinate. They follow leads and they put the story together. And this is happening not just in Boston or around the country, but around the world.

Sasha O'Connell: [00:14:41] You can literally picture just the world lighting up with people talking to people and. Trying to figure out what's going on. Similarly, using other intelligence methods right to do that, whether that's sort of a digital collection, opportunities, right, but it's information gathering is a huge piece of kind of what's going on. And [00:15:00] then there's a lot of capacity back, whether it's in a field office or at headquarters trying to put those pieces together because this whole world is getting laid up and all this information is coming in and a you have to coordinate all those people and be you then have to coordinate all that intelligence, right? Which is just a fancy word for facts and information that are coming in.

Hannah McCarthy: [00:15:19] And the coordination part, that is Sasha on September 11th. She's in the command post and evidence is pouring in.

Sasha O'Connell: [00:15:27] We started getting markers and whiteboards [00:15:30] and made sure the fax machine was turned on and someone brought in an extra phone.

Hannah McCarthy: [00:15:34] Sasha mentioned that today FBI field offices have these big, beautiful conference rooms with loads of screens and resources. But on 9/11, she is in a windowless room with just a phone and a fax machine. This is before this anti-terrorism effort was majorly resourced.

Sasha O'Connell: [00:15:52] And I remember very clearly by the end of that day, there was photographs of all the hijackers around the room that [00:16:00] were printed out and we could see and there was paper all the way around the room. And by the end of the day, my two biggest memories were one that the fax machine was right behind me. So I was sitting at a conference table and the fax machine was right behind my back. And paper was just pouring off the fax machine because airlines and banks. So the airlines were sending us manifests of their of their passengers, whether we had asked for it or not, which is kind of crazy. And it was just pouring off the fax machine and the banks were sending [00:16:30] us lists that they were worried about and it was pouring off the fax machine. So I have this really strong memory of this paper pile behind me just piling up. And with sort of unsolicited information pouring in to one field office, you can imagine what was happening across the country.

Nick Capodice: [00:16:45] What's up at the banks? The airlines thing makes perfect sense, but how are the banks connected

Hannah McCarthy: [00:16:51] At this stage in counterterrorism in this country, U.S. banks were already expected to block any Al Qaeda transactions [00:17:00] and seize their funds. But the hijackers of 9/11 made extensive use of U.S. banks. The 9/11 Commission Report concluded that nothing these attackers did would have tipped off the banks, but still after those attacks, anything is potential evidence anyway. Sasha is processing all of this incoming information.

Sasha O'Connell: [00:17:22] My job is to man that phone and talk to headquarters, figure out, you know, understand what they needed from the Boston office. And that's how we work 12 [00:17:30] hour shifts for the next oh, about eight weeks. And I did leave sort of duty in the command post shortly before my wedding.

Nick Capodice: [00:17:38] The pressure at this moment must have been incredible, especially for someone who, as you said earlier, was quite young and quite new to the bureau. Did Sasha say what it was like for her during those two months?

Sasha O'Connell: [00:17:51] Day one, it was just it's a blessing and a curse, right? You're so busy you don't have any time to think, and it's wonderful because you're busy and you feel like you're contributing. [00:18:00] But I wasn't thinking I was trying to survive and solve problems, right? And find the paper or clean up the fax machine or find George and run down a lead. There was no time to think. We didn't even have a TV in the command post at the time, so it's something I didn't realize. I think I mentioned to you that the first anniversary 9/11, I saw the pictures really for the first time in the video, right? I hadn't seen them. We were too busy just trying to get things sorted out or get agents to the airport, get the evidence back, you know? And again, I'm just trying to keep lists and keep organized. [00:18:30]

Nick Capodice: [00:18:30] It's just you would think that someone who is so closely involved with the investigation would be inundated with images and footage and news the way that we in the U.S. were every waking moment.

Hannah McCarthy: [00:18:40] You know, I think it would have been different had Sacha been in a modern command post surrounded by televisions and news analysis. Instead, it was her and a phone and a fax machine. And this constant drive to figure out the who, what, when, where [00:19:00] and why of September 11th.

Nick Capodice: [00:19:03] All right. Speaking of the modern command post versus the FBI that Sasha worked for in 2001, can we get into the changes that happened after the September 11th attacks? You had people in the FBI who were pretty clear on the fact that they needed to beef up counterterrorism efforts. So did they?

Hannah McCarthy: [00:19:22] Sasha left the FBI in 2002 to work for the private sector. She came back in 2007, and when [00:19:30] she did, the Bureau had reassessed its whole approach to counterterrorism. And the lack of resources that was no longer a problem for the counterterrorism effort.

Sasha O'Connell: [00:19:42] The counterterrorism program is resourced, so all the things we were asking for before 9/11 training translation analysis, right when we did that assessment, there were gaps. We knew there were gaps. We were asking for it in the budget and we weren't getting it from Congress, right? It just wasn't coming. And by the time I got back, like amazing, like we have all those [00:20:00] things right that had happened. And then the other interesting thing that had happened and I never worked in the counterterrorism division after, but it was the head of strategy. So I got to work a little bit with all the divisions for a time is that before 9-11, the counterterrorism division operated much like the criminal division in that cases were more decentralized. So a special agent in charge of a field office like in New York, I'm one of the largest field offices. We're really responsible as they are on the criminal side for their cases. And there was sort of programmatic oversight at headquarters. [00:20:30] And, you know, obviously the most sensitive cases got briefed to the director or whoever needed for legal review. But fundamentally, there was kind of this decentralized approach to case management during the time that I was white and really since the counterterrorism program swung the other direction. One hundred and eighty degrees cases are really centrally managed out of FBI headquarters.

Hannah McCarthy: [00:20:53] Prior to this, FBI field offices were fairly autonomous operations. And that autonomy ended with [00:21:00] 9/11 and this new approach to counterterrorism. A lot of people actually blamed this decentralized element of the FBI for some of the failures that allowed 9/11 to happen. And when Sasha returned to the FBI, de-centralized was a thing of the past.

Nick Capodice: [00:21:19] I heard a lot about Joint Terrorism Task Forces, were these part of the restructuring.

Hannah McCarthy: [00:21:26] Yeah, but Joint Terrorism Task Forces had been around [00:21:30] since nineteen eighty. They started in New York City on nine eleven. We had thirty five of them in the U.S. These were locally based investigators and analysts who are in various states and supposed to watch out for terrorist activity in the U.S.. Now, after 9/11, the FBI almost overnight nearly doubled these forces. They had 56 forces in the days after 9/11. We now have 104. The FBI also [00:22:00] established a national joint terrorism task force at headquarters in D.C., which coordinates all of these local task forces. Again, this is all part of this big centralization movement. And the bureau also reassessed how it gathered and reported information. Part of the problem leading up to nine eleven was communication and coordination across the bureau itself and with other agencies. [00:22:30]

Sasha O'Connell: [00:22:30] There had been a major initiative called SET, which looked at and then realigned the way the FBI did intelligence intake collection and reporting. So it was really about the business process and the prioritization of intelligence collection and shoring up a lot of those gaps, frankly, that existed before 9/11. So that was a huge kind of it's almost like a strategic change management initiative that Director Mueller ran to shore up that intelligence function of the FBI and [00:23:00] further professionalize the intelligence workforce to be able to drive that to the next level. So that was huge.

Hannah McCarthy: [00:23:06] And as the FBI is reassessing and reorganizing itself, there is a larger governmental push to think about separating the intelligence gathering and national security mission of the FBI from the criminal investigation and domestic law enforcement mission. But the FBI itself did not want this, and Sasha believes the reason the bureau remained unified is because they [00:23:30] had been attempting to do counterterrorism work before 9/11. The will was in place, even if the resourcing was not.

Sasha O'Connell: [00:23:40] Yes, there was a lot again, as you mentioned, kind of push right at the beginning of holding folks accountable. And part of that led to let's split up the FBI. Some of the work that I had been involved in in terms of Max Cap 05 and explaining that there was a vision for kind of pulling this all together and building maximum capacity. I think and I got this was my sort [00:24:00] of opinion sort of helped turn those tides, and a lot of work was done by a lot of people who are involved in our partner organizations to say that's not the way to go in the United States, right? You don't want a domestic intelligence agency, right? Focus on U.S. citizens, right? NSA is focused externally. CIA is focused externally. We don't want a domestic intelligence function split off from the FBI. We want our domestic intelligence to the extent it happens to be tied closely to our enforcement, which is all governed by the same set of domestic constitution, [00:24:30] laws and everything else, and ultimately the bureau through a lot of work, a lot of people and a lot of folks, for example, on the Hill who got educated and understood this, and the 9-11 commission findings kept the bureau together, and still today the FBI has again that kind of national security, intelligence function and all the traditional criminal responsibilities that we think of with federal law enforcement.

Nick Capodice: [00:24:50] So should we be thinking of the FBI post-9/11 as the ones in charge, the front line of defense?

Sasha O'Connell: [00:24:56] So sort of, yes and no, I would say so. Just to clarify that the [00:25:00] FBI is the lead federal agency right for counterterrorism. There's no question about that domestically, right? There's a lot of work going on overseas because a lot of the threats don't start here, right? And so other U.S. government and foreign government partners are doing that work globally. And then in the United States, you know, there's only I think today around 14000 FBI agents right to cover the world. And they they are global. You know, there's 18000 state local law enforcement organizations, [00:25:30] right? I think there's like thirty six thousand police officers in New York City. So actually, in any instance, it's going to be state and local law enforcement. That's truly the front line, right? There just aren't the number of FBI agents right to to be out doing the interviewing. We're talking about the kind of human intelligence collection that's required to kind of understand what's happening with these threats.

Hannah McCarthy: [00:25:50] Now, as we know, the change that happened after 9/11 is this laser focus on a priority that was just not being sufficiently resourced before the attacks [00:26:00] in two thousand one. But even with that necessary funding and staffing and focus that came out of 9/11, there still aren't enough agents to handle everything like Sasha says. So if you keep thinking of the FBI as this agency that worked to centralize it is the coordinating force among all of these disparate law enforcement agencies working counterterrorism in the U.S..

Sasha O'Connell: [00:26:23] And for the United States, the FBI is kind of the quarterback, maybe, right? You know, at the end of the day, the policy is set by the White House to [00:26:30] right when it comes to strategy. When it comes to investigations, though, that's the FBI's calls today. Like in a lot of programs, the counterterrorism program is run in a task force model where you know you can have private sector organizations, you can have foreign partners, you can have all the different USG federal partners, you can have state and local law enforcement. And the FBI coordinates that task force.

Nick Capodice: [00:26:53] And you explicitly said to me earlier that we are not focusing on a shift in surveillance or [00:27:00] the intense scrutiny the FBI came under in the wake of these changes after 9/11. But I do have to ask, like, did Sasha talk about that at all? Like that the attacks are not going to just change the structure of the FBI, but the whole idea of security in the United States and not just security like civil liberties, surveillance, nationalism, xenophobia, Islamophobia. Were there any signs to the people on the inside of what was going to come next?

Sasha O'Connell: [00:27:29] I do remember [00:27:30] I don't know how long it was after, but after things were more in routine, it was probably at least a month out. I remember sitting in the command post one day, and one of the things that happened in the command post is that we answered the phone when the public called, and I did some of that too, when the headquarters line was quiet. And I remember taking a call where the caller said, You know, I want to report to the FBI because these people are taking pictures of a bridge. And I don't know what language they're speaking, but it's not English. And I was like, Oh boy, we got a problem, right? And things are going to change [00:28:00] like this is. And so that was when I started to think, Oh boy, what is happening out there, right? And I was starting to think about backlash and hate crimes. I started to think about security and privacy changing.

Hannah McCarthy: [00:28:19] So many people have only ever known the United States as this place of super heightened security, with a hyper focus on terrorist [00:28:30] groups both domestic and international. A place ostensibly under constant threat and an understanding that the government is hyper focused on that threat. And that leaves everyone more vulnerable to government suspicion to surveillance. This is just the way things are in the United States today. But I do think it's important to ask why. I think it's important to scrutinize that [00:29:00] the FBI is the executive intelligence and law enforcement agency in the U.S., and its primary, an overwhelming focus is terrorism. And that focus trickles down to the everyday experience of people in this country and around the world. That is what 9/11 did to the FBI.

[00:29:37] This [00:29:30] episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie sees all. If you want a nearly as portable and twice as quiet civics lesson in your back pocket, Nick and I wrote a book on it. It's called A User's Guide to Democracy: How America Works. If you [00:30:00] liked this episode of Civics 101, or if you want us to go deeper and do more, consider making a donation to the show at civics101podcast.org. We are supported by You. You are the reason we're able to keep going and do better all the time. And while you're there, you can find our entire backlog of episodes -- we have many -- and submit your own questions about American government. Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:30:30]

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Made possible in part by the Corporation for Public Broadcasting.

John Marshall and the Supreme Court

John Marshall was the longest-serving Chief Justice in Supreme Court history. In today’s episode, we learn all about the man as well as the decisions that shaped the highest court in the land; from Marbury v Madison to McCullough v Maryland.

This episode features the voices of Susan Siggelakis, Robert Strauss and Randolph Moss.

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Transcript

Mitch Scacchi: Hey, Nick and Hannah, can I tell you both a story?

Nick Capodice: Of course! This is Mitch Scacchi by the way everyone, our summer intern and we hate to see him go.

Hannah McCarthy: Yeah Mitch, let's have it.

Mitch Scacchi: The year is 1801. John Adams is in the final days of his presidency. Thomas Jefferson is poised to take over on March 4th. Down and out about losing a second term, Adams decides he must act.

Susan Siggelakis: Adams decided that he was very worried about the future of the country now that Jefferson and his administration were poised to take over, and he appointed what was called the "midnight judges." [00:00:30]

Mitch Scacchi: This is Susan Siggelakis, professor of political science at the University of New Hampshire.

Susan Siggelakis: There had been a bunch of new judgeships created under the Federalists and he was filling them before he left. In fact, it was the night before the new inauguration. And he filled out a bunch of what they were called "commissions." And Marshall was the outgoing Secretary of State, and so his job was to essentially finalize the paperwork. But he actually didn't really fully [00:01:00] complete the job because he didn't, he was very lax about certain things. And so some of them actually didn't get delivered.

Mitch Scacchi: Secretary of State John Marshall got some of the appointments out, but he missed some others. And one of these undelivered commissions was for William Marbury, who had been appointed by Adams as Justice of the Peace in the District of Columbia. Marbury asks the new administration for his job, but he doesn't receive a response. So he and three others petitioned the U.S. Supreme Court under Section [00:01:30] 13 of the Judiciary Act of 1789 to compel the new Secretary of State, James Madison, to deliver their commissions and give them their jobs. And the Chief Justice who decides to take the case two years later? Oh, yeah, it's John Marshall.

Hannah McCarthy: I can already see a conflict for Marshall with this case. I mean, he was the guy who gave Marbury and these three other appointees their commissions in the first place when he was Secretary of State.

Mitch Scacchi: But nobody thought it was wrong for Marshall to rule on the case. And [00:02:00] it didn't make the headlines. But it's not necessarily the facts of the case that make it well-known, it's what Marshall decides to do with it.

Robert Strauss: And he decides to take on a case that's going to establish what he wants to establish, and that is the right for the Supreme Court to review laws.

Mitch Scacchi: This is Robert Strauss, author of "John Marshall: The Final Founder."

Susan Siggelakis: He essentially holds that Section 13 of the Judiciary Act was actually an unconstitutional action of Congress because Congress gave [00:02:30] it gave the Court jurisdiction that it wasn't allowed to have under Article Three of the U.S. Constitution.

Mitch Scacchi: Marshall says that this law giving the Supreme Court jurisdiction over the case is unconstitutional. So he can't rule on the case. And just like that, in 1803, in what became the landmark case of Marbury v. Madison, Marshall established the principle of judicial review.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice. [00:03:00]

Hannah McCarthy: And I'm Hannah McCarthy. And today we're talking about John Marshall, the longest-serving Chief Justice of the Supreme Court and his influence in shaping the Court we know today.

Nick Capodice: Our guide for this episode is Mitch Scacchi. We at Civics 101 have been honored to have him as our intern this summer. Let's have it Mitch!

Mitch Scacchi: Thanks, guys. Like many of the founders, John Marshall is an impressive but also complicated figure in our nation's history. But to really understand the Constitution, the judicial branch, [00:03:30] the Supreme Court, and the scope of federal power that we see today, you have to know who John Marshall was. It was one thing for the Framers to write the Constitution, and it was one thing for it to be ratified, but it was another thing entirely for the Constitution to be applied. Nobody really knew just what the words on paper would look like in practice, and John Marshall was one of the first to give effect to those words. In doing so, he shaped the practical meaning of the young Constitution, established the judiciary as an equal branch of [00:04:00] government, and made the Supreme Court into an institution of great power and influence.

Hannah McCarthy: Ok, Mitch, let's start from the beginning.

Mitch Scacchi: Marshall was born in 1755 in Virginia, a colony with a huge enslaved population, the most of any colony at the time. Marshall would later own hundreds of enslaved people himself. This is an important thing about Marshall, particularly in the way it shaped some of his judgments from the bench. But for this episode, [00:04:30] we're going to focus on how Marshall shaped the role of the Chief Justice, the Supreme Court, and the federal government. When the Revolutionary War broke out, Marshall volunteered with his father.

Robert Strauss: But he started out as a young soldier in Valley Forge. His father was a friend of George Washington's, they were fellow surveyors. So when the war started, of course, his father wanted to go off with his friend and fight the British, and he brought his son along with him, his oldest son.

Mitch Scacchi: This is Robert Strauss again. So [00:05:00] after the Revolutionary War, John Marshall studied law at the College of William and Mary, and he became a successful lawyer in Richmond, Virginia. But the law wasn't Marshall's only ambition. Here's Professor Susan Siggelakis.

Susan Siggelakis: He was a legislator, state legislator in the Virginia General Assembly. He actually was a delegate to the Virginia ratifying convention, which ratified the United States Constitution. And later he actually worked with Madison in crafting the First Amendment. [00:05:30]

Nick Capodice: He served in the Revolutionary War, he helped ratify the Constitution, and he drafted the First Amendment with James Madison. This guy's everywhere!

Hannah McCarthy: And this is all before he gets his first high-profile job?

Mitch Scacchi: Exactly. In 1799, he's elected to the U.S. House of Representatives from Virginia, but he didn't serve long because President John Adams nominated Marshall to be Secretary of State in June of 1800.

Nick Capodice: All right, so as if what he's already done isn't enough, he [00:06:00] joins Congress and then moves into the executive branch as the Secretary of State?

Mitch Scacchi: Yeah, and there were some foreign relations involved with the position, but he's basically Adams's chief of staff. But he's only Secretary of State for less than a year. The third Chief Justice of the Supreme Court, Oliver Ellsworth, was sent on a diplomatic mission to France, which was actually common at the time. But he gets stuck overseas and the Court needs a Chief Justice.

Robert Strauss: So now he's stuck there. He gets sick and [00:06:30] he sends a note back, "I'm not coming back. You're going to have to find somebody else." So the Secretary of State, Marshall, goes to Adams and he suggests people, including bringing John Jay back, and Adams says, "No, I think it's you. I like you." So now he is both Supreme Court Chief Justice and Secretary of State.

Hannah McCarthy: It is wild to think that Marshall was nominated with less than two months left in Adams's presidency. He was so close to never becoming [00:07:00] Chief Justice.

Mitch Scacchi: And he wasn't even Adams's first choice. Adams nominated former Chief Justice John Jay to serve again, but Jay turned him down. So Adams went with Marshall instead. Once Marshall was nominated, the Senate actually delayed his confirmation because they hoped that Adams would pick someone else. But he didn't. And eventually the Senate voted to confirm Marshall to the Court.

Hannah McCarthy: Yeah, Adams later said that, quote, "My gift of John Marshall to the people of the United States was the [00:07:30] proudest act of my life." But why did Adams eventually settle for Marshall?

Susan Siggelakis: You know, I think Adams saw in him a real, he was a real Federalist. I mean, he was somebody who could be trusted. He, he believed in a lot of the things that Adams believed in.

Mitch Scacchi: At this time, there were two major political parties: the Federalists, led by John Adams and Alexander Hamilton, and the Democratic-Republicans, led by Thomas Jefferson and James Madison. [00:08:00] In short, Federalists believed in strong central government and a loose interpretation of the Constitution, while Democratic-Republicans believed in greater respect for states' rights and a strict interpretation of the Constitution. John Marshall was a loyal Federalist.

Nick Capodice: And now he's also Chief Justice of the Supreme Court and Secretary of State.

Mitch Scacchi: Yeah, I was surprised by this. But then again, Marshall became Chief Justice on February 4th, 1801, exactly one month before the [00:08:30] end of the Adams presidency. So Marshall served as Secretary of State and Chief Justice at the same time for only one month. And it's important to also mention that the Supreme Court was not the esteemed institution it is today. In fact, the first Chief Justice, John Jay, really didn't take the job seriously. He took on very few cases. No one was really sure what role the Court should play, so nobody really cared about Marshall serving in both roles.

Robert Strauss: The Supreme Court is relatively undefined in the Constitution. It's the highest [00:09:00] court, there's no question. But Jay doesn't take it upon himself to do much about it. He eventually quits to become Governor of New York, which he figures is a better deal than being the Supreme Court Chief Justice.

Susan Siggelakis: Unlike today, the Supreme Court really wasn't a very important institution in American government.

Nick Capodice: And so the Supreme Court was largely insignificant compared to the other two branches.

Mitch Scacchi: You could say that. The Supreme Court met in the basement of the Capitol Building, if that's any indication of what the other branches thought of it. But John Marshall...he [00:09:30] changed that. As Chief Justice, Marshall was determined not to sink into the annals of history as an insignificant justice on an insignificant court. No, he was going to do something with this job.

Susan Siggelakis: If you look at Marshall's career, I would say between 1801 when he got on the Court and 1835, the Court actually rendered about a thousand opinions, a thousand [00:10:00] cases were decided. He wrote about 500 of those individually. So you can see the guy was a workhorse. You know, he sort of was a captain of a ship that, a captain of an institution that gradually grew in importance during his time on the Court.

Robert Strauss: And their decisions were all, I hesitate to call them unanimous, but they spoke as one voice. In other words, they might have been 4 to 2 [00:10:30] in this case, but when the when the case is written it sounds like all of them are in agreement. And Marshall thought this would give the Supreme Court a little bit more sway.

Mitch Scacchi: This idea that the Court would speak as one voice when it issues a majority opinion seems so obvious to us now. But this wasn't always the case.

Randolph Moss: Before he was Chief Justice, each justice would state their own views. And he was the one who instituted the notion of actually having an opinion for the Court, which, by and large, during the early days of the Marshall Court, he was the one who announced.

Mitch Scacchi: This is Judge [00:11:00] Randolph Moss. He serves as a judge on the United States District Court for the District of Columbia.

Hannah McCarthy: So Marshall steps in and says that instead of issuing separate opinions, the Court will issue one majority opinion that will serve as the voice of the Court.

Nick Capodice: Yeah, and I see this as being a way for Marshall to give the Court more legitimacy, to establish the Court as one entity, one force, with one opinion to be followed.

Mitch Scacchi: Right. But more than the single voice Marshall gave the Court, his tenure [00:11:30] was also characterized by that idea of unanimity. All the justices agreeing with the decision of the Court. Marshall believed that, if every justice agreed with the Court's ruling, the Court's decisions would have more weight and authority.

Susan Siggelakis: I think it's a tribute to his organizational skills. I think it's a tribute to the fact that he had a court most of the time, actually, who were part of that same founding generation, and they had similar views. [00:12:00] So it wasn't that difficult, I think, to get unanimity.

Hannah McCarthy: I mean, this is remarkable. Marshall redefined the role of Chief Justice and of the Supreme Court itself.

Nick Capodice: Yeah, and the judiciary as a whole.

Susan Siggelakis: You know, he was important for building up judicial power, but also for recognizing the limits of judicial power. And I think that's the key thing about Marshall.

Mitch Scacchi: Going back to that 1803 case Marbury v. Madison, Marshall built up judicial power by establishing [00:12:30] the principle of judicial review.

Hannah McCarthy: Ok, yes, judicial review. Let's define this. What is judicial review?

Susan Siggelakis: Judicial review is the authority of a court to render void and inoperable any act of a legislature or any other act of any other part of the government based on the fact that it's conflicting with some, something in the United States Constitution.

Mitch Scacchi: Marshall wrote in his opinion that "It [00:13:00] is emphatically the province and duty of the judicial department to say what the law is."

Nick Capodice: And that's pretty much what we think of as the whole point of the Supreme Court these days, isn't it? To rule something unconstitutional or uphold its constitutionality. But the Court did not actually have that power until John Marshall said that it did.

Susan Siggelakis: He was saying, you know, somebody has to be the last word on what the Constitution says, what it allows government to do and what it doesn't allow [00:13:30] government to do. And the Court is the best equipped to do that, particularly since it's not vested in the political struggles of the time. It's supposed to be a more neutral, a more detached body from the the opinions of the day, shall we say.

Robert Strauss: What we had when Marshall decided on judicial review was we finally had three coequal branches of government. So I think that's why I'd say Marbury v. Madison sort of [00:14:00]ends the founding of the country. From there on, it's an elaboration on what we already have.

Mitch Scacchi: Marshall gave the judicial branch some real power to hold the other two branches and the states accountable to the Constitution. But Marbury v. Madison is also a case in which Marshall recognizes the limits on judicial power. Here's Judge Moss again.

Randolph Moss: That's another tradition set by John Marshall, is that in every case we say to ourselves, do I actually have the power to decide this case? That's a question [00:14:30] of whether there's a statute that gives you the power to decide the case and whether the Constitution gives you the power to decide the case. And if it doesn't, then we're done at that point, and there's nothing left for the Court to say.

Mitch Scacchi: Now, this wasn't Marshall's only significant case. He was also instrumental in establishing the idea that federal power should overrule state power when they come into conflict,

Hannah McCarthy: Wait, are we talking about McCulloch v. Maryland here, 1819?

Mitch Scacchi: Absolutely. McCulloch v. Maryland is a case where a state government challenged the existence [00:15:00] of the National Bank. Alexander Hamilton, as Secretary of the Treasury, wanted to establish a national bank to help stabilize and improve the nation's credit. And this dream of his came true. But many states hated the National Bank, including Maryland, which imposed a tax on the Bank. James McCulloch was the cashier of the Bank's Baltimore branch, and he refused to pay this tax. This case eventually made its way to the Supreme Court, and the big question facing Marshall was, [00:15:30] Is the National Bank constitutional?

Susan Siggelakis: The state of Maryland and other states would say, there's nothing in the U.S. Constitution that says Congress can charter a bank, nowhere does it say that. And if you look in Article One, section eight, which is where the enumerated powers of Congress are, you don't see it. You know, you don't see a place where it says Congress shall have the power to charter a bank. But when argument was taken before the U.S. Supreme Court, Marshall, again thinking [00:16:00] about his idea of being a Federalist, the idea of a strong nation as opposed to partiality of various states all pursuing different policies, he sided with the National Bank and the nation.

Mitch Scacchi: Marshall look to the Necessary and Proper Clause of the U.S. Constitution, which gives Congress the power to do whatever is "necessary and proper" for carrying out its other stated powers. So was the establishment of the National Bank a necessary [00:16:30] and proper action taken by Congress?

Susan Siggelakis: The states were saying, well, it's not absolutely necessary for the nation to have a bank. You know, it might be helpful, but the language of the Constitution says "necessary and proper." And they read the Necessary and Proper Clause as essentially allows for things that are absolutely necessary rather than simply helpful or convenient. Marshall, on the other hand, reads it essentially as convenient. So [00:17:00] essentially, he allows Congress to be the judge of its own powers.

Hannah McCarthy: So Marshall interprets, quote, "necessary and proper," to really mean "appropriate and legitimate." As long as Congress is acting toward a constitutional end, then the means to get there are constitutional, too, like creating the National Bank.

Mitch Scacchi: Right, as long as those means aren't explicitly outlawed in the Constitution.

Randolph Moss: So that's the first question, he said, yes, Congress has this power, and that was [00:17:30] a question of enormous importance. But the second question was also enormously important, and he said, and Maryland can't tax the Bank because if Maryland can tax the bank Maryland can destroy the bank. And in doing that, Marshall, early on in the Court's history, established the supremacy of federal law and supremacy of the federal government over the state governments, at least within the realm in which there is federal power. So those were both enormously important propositions.

Nick Capodice: Marshall's decision here must've had a major impact [00:18:00] on the scope of federal power.

Randolph Moss: Well, I mean, with respect to the country as it ultimately developed, it could not be more important. It's what allows us to actually have a strong national government. I agree that McCulloch, in terms of defining the nation, may be a more important decision than Marbury v. Madison.

Mitch Scacchi: In fact, this decision opened the door to what are called implied powers.

Hannah McCarthy: Right, those are the powers the federal government has even though they are not explicitly [00:18:30] stated in the Constitution.

Susan Siggelakis: Smarter people than I have traced the explosion of national power and the diminishment of state power to two decisions by the Marshall Court. One, obviously, McCulloch, the other one was called Gibbons v. Ogden.

Mitch Scacchi: It's enough to know that Gibbons v. Ogden was a case about navigation rights on the Hudson River between New York and New Jersey. The question facing Marshall was whether the Commerce Clause of the Constitution gave Congress power to regulate interstate [00:19:00] navigation. And in 1824, he ruled that Congress has that power over the states, that interstate commerce included all types of commercial intercourse between the states, including navigation.

Randolph Moss: It is, I think, still the seminal case on the commerce power. The power to regulate commerce between states, so for example between New York and New Jersey, is a federal power, and not a state power. And if each state can regulate commerce in a way that [00:19:30] limits the flow of commerce between states, it's very hard to have a national economy. That's something that Hamilton saw, it's something that's in the Constitution itself, in the Commerce Clause, and it's something that Marshall again gave life to in Gibbons v. Ogden.

Hannah McCarthy: So in both McCulloch and Gibbons, Marshall interprets the Constitution in such a way that results in the expansion of federal power over time, right?

Susan Siggelakis: Those two cases are often twinned together. [00:20:00] There's very few limits on what Congress can do to the economy because the Court is just not going to step in to second-guess what Congress wants to do, right? In other words, Marshall would say, we're not experts on the economy, we're not the experts on taxation, those kinds of things. So we'll just let the people and their elected representatives figure out whether they think this is good or not good.

Randolph Moss: To the extent that Gibbons stands for the proposition that it's up to the federal [00:20:30] government to regulate commerce between the states and that states cannot limit commerce between the states, that is a proposition that is not, today, subject to any reasonable doubt.

Nick Capodice: From all this, you can easily see just how much of an impact Marshall had not just on the Court and the judiciary but on all aspects of federal power in the centuries that followed. Congress's power over the economy, FDR's New Deal programs, the Affordable Care Act, the [00:21:00] stimulus bills passed because of COVID-19 - all of these examples of federal power can be traced back to Marshall's interpretation of the Necessary and Proper Clause and the Commerce Clause of the Constitution.

Randolph Moss: I think that's exactly right. He gave meaning to those words. I think that one of the things that is essential about John Marshall is that he had vision in the same way that I think Alexander Hamilton had vision for the country and a country that would eventually grow into what it is today. And obviously, neither of them understood exactly [00:21:30] what the country was going to look like today, but they did have a vision of providing the tools to a national government that would allow it to become what it's become today.

Mitch Scacchi: And that's why Jean Edward Smith calls him the "Definer of a Nation" in his biography of Marshall. Marshall gave real practical meaning to those words in the Constitution and set this country down a path that leads us to where we are today. But despite his tremendous [00:22:00] influence on the Supreme Court, his legacy is complicated. For one, Marshall bought and sold hundreds of enslaved people throughout his life, and he never wrote an opinion supporting freedom for Black Americans.

Susan Siggelakis: He actually sponsored a bill in the Virginia legislature, he was a member of the legislature at one point, to encourage what was called manumission. In other words, for people to individually free their slaves. He actually founded a society for colonization of freed slaves, [00:22:30] which obviously today people are against, and many people were against it at that time, too, but it was the idea of sending them back to Liberia or colonization. And that was seen as actually a rather progressive view at the time compared to keeping them enslaved, you know, for the rest of their lives in the United States.

Mitch Scacchi: Supporters of colonization efforts did so for many reasons. Some were opposed to slavery and hoped that helping people move to Africa would encourage enslavers to voluntarily free their enslaved populations. [00:23:00] Others saw Liberia as a way to rid the new nation of Black people. Opponents of colonization saw the efforts as racist and pro-slavery. Although Marshall supported the colonization of free Black people throughout his life, he never considered freeing his own enslaved people and resettling them in Liberia.

Hannah McCarthy: And I know that the rights of Native Americans are another complicated area for Marshall. In the case of Worcester v. Georgia in 1832, he upheld the rights of the Cherokee [00:23:30] Nation and declared all Georgia laws about their land unconstitutional.

Susan Siggelakis: The important thing about that case is what Marshall wrote about the Cherokee Nation, and if I could just read it, he says, "The Cherokee Nation then is a distinct community occupying its own territory with boundaries accurately described in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the ascent of the Cherokees themselves or in conformity with treaties and [00:24:00] with the acts of Congress. The whole intercourse between the United States and this Nation by our Constitution and laws is vested in the government of the United States."

Nick Capodice: In other words, tribal sovereignty.

Mitch Scacchi: Yup. The United States and its citizens must respect Native American tribes, their lands, and their sovereignty. This is one of several cases Marshall's Court decided on the rights of Native peoples, decisions that have been seen by some as the foundation of federal Native American law and others as laying the groundwork [00:24:30] for the control and decimation of Native Americans. This is all part of Marshall's complex legacy.

Hannah McCarthy: Now, I know that Robert wrote a book called "John Marshall: The Final Founder." And what do we make of this idea that John Marshall even was a founding father, perhaps the final founder?

Robert Strauss: He definitely was. I mean, in a certain sense, he kept the nation together because it really was splitting up in 1800. I mean, if there were not this "definer" as the other book calls him, we [00:25:00] could've split up as a country very easily.

Randolph Moss: And I think that, I think he is, I think he did play as significant a role as the founders in defining what sort of country we have today.

Nick Capodice: And is it fair to say that he is one of the most influential Supreme Court justices in history?

Mitch Scacchi: Well, the Supreme Court gets the last word on the meaning of the Constitution. You could argue that's all thanks to John Marshall. It's no exaggeration to say that the Supreme Court would be far less supreme today if not for him.

Susan Siggelakis: I [00:25:30] mean, obviously, I guess, that goes without saying. I mean, obviously, Marbury v. Madison is the most quoted decision. The phrase that you said, that it is emphatically the province and the duty of the judiciary to say what the law is, that line is the most commonly cited in every case, almost in every Supreme Court case or lower court case that there is. So I think he was, you know, enormously influential in raising the prestige of the Court, in tackling the [00:26:00] key issues of the day.

Randolph Moss: Well, you start with cases as great as Marbury v. Madison, which casts the judiciary as the deciding voice in what the Constitution means and what the law is. We don't step back to think about it, but the judiciary today is what it is in large part because of John Marshall.

C-SPAN: "Off the main justice's dining room [00:26:30] is a smaller dining room for smaller functions known as the John Marshall Dining Room, and that's due to a sculpture that was placed there in the mid-1970s of John Marshall. Chief Justice Warren Burger decided that he wanted to make that the theme of the room, and so...."

Mitch Scacchi: If you're walking through the lower level of the Supreme Court Building, you'll see a huge statue of John Marshall. He's sitting in a massive chair right in the center of the downstairs of the Supreme Court. And there's a reason he's there, in the middle of the building. It's because, in a way, John [00:27:00] Marshall made the Supreme Court.

Randolph Moss: And so I think, and the point I'm trying to make is, in part by just the way Marshall carried himself through his career as a justice and otherwise in his career, I think he did help further establish both the independence and the integrity of the judiciary.

Nick Capodice: Today's episode was written and produced by Mitch Scacchi, with help from Jacqui Fulton, Christina Phillips, Hannah McCarthy and me, Nick Capodice.

Hannah McCarthy: Erika Janik is our Executive Producer. Music in this episode by cymbalBird, Sir Cubworth, [00:27:30] Blue Dot Sessions, and Chris Zabriskie.

Nick Capodice: Special thanks to Rebecca Fanning from the U.S. Courts, and a fun quick fact about Professor Susan Siggelakis: She was Mitch's thesis advisor at UNH, and he wishes to thank her for her contributions to the episode.

Hannah McCarthy: You can hear all of our episodes of Civics 101 at Civics101podcast.org. You can also listen to us on Apple podcasts or wherever you get your podcasts. And if you're so inclined, leave us a review, we want to know what you think. Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:28:00]

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Made possible in part by the Corporation for Public Broadcasting.

Civil Rights: Obergefell v Hodges

It’s the most recent landmark case in our Civil Rights SCOTUS series, the decision that said the fundamental right to marry is protected under the 14th Amendment. How did it come about? What was the status of marriage before June of 2015? And why is the government so involved in the marriage business anyways?

This episode features the voices of Melissa Wasser from the Project on Government Oversight and Jim Obergefell, the named party in Obergefell v Hodges.

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

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Transcript

Obergefell all.mp3

Jacqui Fulton: I've been married twice the first time I was very young and closeted, in part because of all the homophobia and bigotry and stuff like that.

Nick Capodice: This is Jackie Foltyn, a producer here at Civics 101. And this is Fendall Fulton.

Fendall Fulton: I'm Fendall, I am Jacki's other half.

Nick Capodice: Jackie and Fendall got married at Odeorne Point in November of twenty eighteen.

Jacqui Fulton: I remember when I went with my ex now ex-husband and we're doing the paperwork and stuff and asked if we were cousins or if we were [00:00:30] blood related. I thought that was kind of funny, but it was like super easy to fill out, you know, no problem. And so whenever Fendall and I went to do the paperwork, it asks and asked who is Person A and who is person B? And I was like, well, how do we know? Like, I guess I guess it could be personal because they're older than I am. Yeah.

Fendall Fulton: So I took the A role, Jacqui took the B role. But that's not indicative of our actual actual [00:01:00] roles in life.

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

Jacqui Fulton: And I'm Jacqui Fulton.

Nick Capodice: And today we're learning about one of the most recent landmark Supreme Court decisions; so recent it is not yet required in many states civics curriculum, though I imagine it will be soon. The decision that made marriage marriage Obergefell v. Hodges 2015.

Jim Obergefell: A Supreme [00:01:30] Court ruling announced Minutes ago extends same sex marriage In America. The justices ruled Five to four that states...

Jacqui Fulton: Before we get started, I just want to know why. Nick, why is the government involved in marriage in the first place?

Nick Capodice: Well, Jacqui, as you know, marriage was not always about two people who loved each other before the late eighteen hundreds. The explicit goal of marriage was usually to acquire useful in laws, passed down property and gain political and economic power. [00:02:00] But there's a shift around the turn of the century with the rise of wage labor, where states begin to use marriage as a way to give out resources like health care or Social Security. And frankly, they do this because it's cheap to do it that way. Instead of giving everyone those resources, just give them to the breadwinner in a family via an employer and extend them to your spouse and children.

Jacqui Fulton: Ok, and so a same sex union flies in the face of the system and therefore LGBTQ [00:02:30] plus couples who live together did not get those resources.

Nick Capodice: They did not. Same sex unions have existed since the beginning of recorded times, as has homophobia. But in the United States, LGBTQ plus couples have lived together in relationships akin to marriage in every facet. Save the legal benefits. The only way a couple could get those benefits, and this happened predominantly in the 1970s to the 2000s, was for one partner to adopt the other.

Jacqui Fulton: How [00:03:00] far back do we have to go to understand marriage equality laws before June of 2015?

Nick Capodice: The first challenge to the legal definition of marriage being between two people of the opposite sex was in the 1970s,

Melissa Wasser: Baker vs. Nelson, which is a 1971 case out of the Minnesota state Supreme Court.

Nick Capodice: This is Melissa Wasser. She's policy counsel at POGO, the Project on Government Oversight. James McConnell and Richard Baker applied for a marriage license in Minneapolis, and the district [00:03:30] court clerk refused to grant it because they were both men and went up to the Minnesota Supreme Court.

Melissa Wasser: So even though that's a state Supreme Court, Baker in that case ended up appealing to the Supreme Court and the Supreme Court had a one line order that said this appeal did not raise, quote, a substantial federal question. And so they couldn't take it.

Nick Capodice: It was dismissed. None of the lawsuits in the 1970s seeking recognition of marriages between gay and lesbian couples were successful. [00:04:00] And so the next big milestone is in 1991 in Hawaii,

Melissa Wasser: The Hawaii Supreme Court had a case that said that their state's prohibition on same sex marriage might be unconstitutional.

Nick Capodice: And the case, called Baehr v Lewin in the Supreme Court of Hawaii, sent their verdict back to a lower court, asking them to demonstrate that denying marriage licenses to same sex couples, quote, furthers compelling state interests.

Jacqui Fulton: Oh, so basically they're saying prove [00:04:30] that preventing marriage, same sex couples is good for Hawaii.

Nick Capodice: Right. And they formed a commission to do just that. Two commissions, actually, the first commission failed to give a report, but the second commission reported they'd studied the benefits of marriage and public policy and they recommended Hawaii open marriage to all.

Jacqui Fulton: Why did they fail to give a report? What was up with that?

Nick Capodice: Honestly, they just couldn't get their stuff together.

Jacqui Fulton: You had one job.

Jim Obergefell: In the mid 90s, [00:05:00] there was that case making its way through the courts in Hawaii and John stepmother at the time actually said, you know, if this happens, if they make marriage a possibility in Hawaii, I'm going to take the entire family there so you guys can get married.

Jacqui Fulton: Who is that?

Jim Obergefell: I'm Jim Obergefell, named plaintiff in Obergefell v Hodges, the landmark Supreme Court marriage equality case.

Jacqui Fulton: The Obergefell?

Nick Capodice: The very same. He and his partner, John Arthur, had been together some time when this all happened in Hawaii, [00:05:30] when it seemed like marriage equality would be possible.

Jim Obergefell: Well, that never happened. And John and I talked about it and we both agreed that for us, we didn't want to just have a symbolic ceremony. We had friends who, you know, had ceremonies in Ohio and elsewhere. But for us, it just wasn't what we wanted. We wanted to marry only if it actually carried legal weight.

Jacqui Fulton: Now might be a good time to explain civil unions.

Nick Capodice: All right. There were different rules in each state regulating same [00:06:00] sex unions. But while couples all over the country would perform civil unions for family and friends, these couples did not receive the state sanctioned benefits of marriage. And we're talking inheritance rights, huge tax benefits, insurance, Social Security. And Jim and John wanted those benefits.

Jacqui Fulton: Yeah, of course they did. Like everybody else,

Nick Capodice: This court case in Hawaii caused a backlash against marriage equality and it brought the topic into the national spotlight. [00:06:30] Battle lines were drawn. States hastily passed legislation mandating marriage is something between one man and one woman,

Melissa Wasser: Not just in Hawaii. It was also at the federal level, which ended up with the enactment of the Defense of Marriage Act, or DOMA, and that was by signed into law by President Bill Clinton in 1996.

John Kerry: Obviously, the results of this bill will not be to preserve anything but will serve to attack a group of people [00:07:00] out of various motives and rationales.

Robert Byrd: Humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength and help of human.

Nick Capodice: That was Democratic Senator John Kerry speaking against the Defense of Marriage Act and also Democratic Senator Robert Byrd speaking for it. It passed resoundingly in the House and the Senate with support from both parties. Only [00:07:30] 14 senators voted against it

Melissa Wasser: The Defense of Marriage Act, or DOMA, was a federal law that defined marriage for federal purposes as the union of one man and one woman. So that meant anything that federal benefits dealt with. So insurance benefits, Social Security, survivor benefits, filing a joint tax return if you were married for those purposes, it was between one man and one woman. And so that was Section three of DOMA. Section two [00:08:00] of DOMA was that states were allowed to refuse recognition of same sex marriages that were granted from other states and other jurisdictions or think like Canada or if other states had same sex marriage laws, it wouldn't transfer state to state like other benefits did.

Nick Capodice: In the decade after Hawaii's ruling, many states, including Hawaii itself, passed constitutional amendments and legislation banning marriage for all but opposite sex couples. And one of the most famous [00:08:30] was Prop eight in California.

The streets of Castro in market were full of people celebrating Barack Obama's win. Their party turned somber, though, when they realized that Proposition eight was headed for victory. Supporters of gay marriage tell us they thought they'd reached a mountaintop...

Nick Capodice: California legalized same sex marriage in May of 2008. And thousands of couples got married. But the backlash was swift. In California, they put a proposition, an initiative that the people vote on on the [00:09:00] ballot, that November, which banned marriage within same sex couples. And financial support for Prop eight poured in from out of state, primarily from religious institutions like the Roman Catholic Church and the Knights of Columbus. And the vast majority of donations, as well as volunteers, came from the Mormon community. And Prop eight passed.

Jacqui Fulton: Yeah, I remember that was heartbreaking. A lot of couples who had already gotten married, didn't they have to have their marriages annulled?

Nick Capodice: No, they [00:09:30] did not have to have their marriages annulled because as soon as the legislation passed, a trio of cases went to the California Supreme Court to argue that Prop eight was unconstitutional because it took away people's fundamental rights. And the court ruled that Prop eight was constitutional, but those 18000 marriages remained legally valid.

Jacqui Fulton: Interesting. Hmm. Were there any gains for those fighting for marriage equality in the wake of all this?

Nick Capodice: There [00:10:00] were a few. Notably in 2004, Massachusetts was the first state to license and recognize marriages between same sex couples. Other states followed, including New York. Which brings us to our next milestone, United States v. Windsor.

Edie Windsor: I wanted to tell you what marriage meant to me. It's kind of crazy how we lived together for 40 years. We were engaged with with the circle that I wear as a pin because I wouldn't wear a ring because I was still in the closet. I [00:10:30] am today an out lesbian. OK, who just sued the United States of America, which is kind of overwhelming for me...

Melissa Wasser: Edie Windsor and Thea Spyer were married in New York State in 2008. Thea died in 2009 and left her entire estate to Edie Windsor. When a spouse dies, their surviving spouse gets to claim a tax exemption. Where I believe you get an unlimited spousal deduction and [00:11:00] you pay no federal estate tax on what you're Spouse leaves you. She wanted to claim that exemption, but was barred by Section three of DOMA, which again dealt with because marriage is between one man and one woman at the federal level, you don't get any benefits. So she had to pay those three hundred and sixty three thousand and fifty three dollars. By the time the case ended, it was over six hundred thirty eight thousand dollars in estate [00:11:30] tax payments that the government had to pay back. But she sued the federal government because if you think about it, what is it? Had it been, Edie, a man you know, then she would have qualified for that unlimited spousal deduction.

Nick Capodice: Melissa was in the courtroom when US v. Windsor was argued and when the opinion was read and the court ruled five to four that the Defense of Marriage Act imposes a, quote, disadvantage, a separate status, and so a stigma to [00:12:00] LGBTQ married couples and thus violated the due process protections of the Fifth Amendment. And so DOMA is struck down

Speaker5: By seeking to displace this protection and treating those persons as living in marriage is less respected than others. Section three of DOMA is in violation of the Fifth Amendment.

Jacqui Fulton: An honest civil clarification here, you said due process in the Fifth Amendment. I thought due process was the Fourteenth Amendment.

Nick Capodice: I had the same question.

Melissa Wasser: And I know listeners are [00:12:30] going to hear there's two due process clauses. What does that mean? Which I totally I totally get the Fifth Amendment binds the federal government. The Fourteenth Amendment binds the states.

Jacqui Fulton: Ok, got it.

Nick Capodice: So what we then have are 50 states each with their own rules when it comes to marriage equality.

Jacqui Fulton: Ok, so how do we get to the national decision on marriage equality?

Nick Capodice: We get there from that favorite dance move of the Supreme Court, the circuit court split.

Melissa Wasser: And [00:13:00] so a circuit split is what happens when one circuit rules one way and another circuit rules the opposite way, and now you have, based on where you're living in the country, in the same United States of America, the law is two different things. So what happened with Obergefell and those associated cases where there were positive rulings towards marriage equality, saying that state level bans were unconstitutional in the 4th, the 7th, the 9th and the 10th Circuit. But if you lived in Ohio, [00:13:30] Kentucky, Michigan, Tennessee, the bans were constitutional. And so that leaves a circuit split. The only people who can rectify a circuit split are the justices of the United States Supreme Court.

Nick Capodice: So the court agrees to hear four cases, one from each state and the Sixth Circuit. And that is how we get to Jim Obergefell

Jim Obergefell: So the first time I met John, honestly, he scared the daylights out of me because I was still a high school teacher. [00:14:00] I was still closeted. And I went out with a friend of mine and we went to a bar near the University of Cincinnati where we had both graduated. So sitting at the bar was his friend, John.

Nick Capodice: It wasn't the first time they met that they got together, nor the second, but the third time they met each other, they decided to be a couple.

Jim Obergefell: And John and I joked that for us, it wasn't love at first sight. It was love at first sight. We became a couple. John tried to talk me out of it, said, Jim, I'm a mess. I've dated a lot of men. [00:14:30] It never ended well, but I wouldn't be dissuaded. I wouldn't be talked out of it. So we became a couple, you know, that Hawaii case, which did not turn out the way we wanted it to. So that was when all of those state level DOMAs started happening and also, you know, the federal level Defense and Defense of Marriage Act. So we just thought marriage is forever going to be something we were denied the ability to do. We just thought it was forever out of our reach.

Nick Capodice: And tragically, [00:15:00] in 2011, John was diagnosed with ALS. And Jim devoted his life to taking care of him.

Jim Obergefell: June 26, 2013 I was standing next to John's bed because at the time he was at home hospice care, and I was a full time caregiver. Well, other than like four hours a week when the hospice nurses visited. So when we heard that the Supreme Court struck down the Defense of Marriage Act, I did. I just leaned over, hugged him and kissed him and said, let's get married. And luckily [00:15:30] he said, yes, but, you know, here we were living in Ohio, which had its own state level version of the Defense of Marriage Act, which meant I could not just put him in his wheelchair and take them six blocks to the county courthouse for a marriage license. So we had to figure out where do we go, where do I take this dying man to do something millions of people simply take for granted?

Nick Capodice: Jim and John considered several cities in which they could get married, but they were all long drives away, severely uncomfortable for John and his wheelchair. [00:16:00] But a friend of theirs suggested Maryland because Maryland was the only state that allowed just one member of a couple to apply for the marriage license, which meant John only had to travel for the ceremony itself.

Jim Obergefell: We also knew who was going to officiate because years before John's aunt Paulette had told us that in her opinion, we represented marriage better than any other couple she knew, and she is well wanted us to be able to marry one day. So she was more optimistic than we were, [00:16:30] I guess, because at Paulette, her nickname is Aunt Tootie, went to the Internet where she clicked the ordained me button because she wanted to be able to officiate if we ever had the opportunity. So after I proposed to John, I called Aunt Tootie and said, Aunt Tootie, do you remember the promise you made, the offer you made to officiate, does that still stand? And of course, Aunt Tootie said, absolutely, Jim. You tell me when and where I will be there.

Nick Capodice: And because of John's condition, they booked a medical jet to get to Baltimore [00:17:00] Airport

Jim Obergefell: And we landed, parked on the tarmac. And got married. I got to take John's hand and we got to say I thee wed. I do. And it really was the happiest moment of our lives.

Nick Capodice: And shortly after their wedding, a lawyer friend of a friend of Jim and John's, Al Gerstein asked to meet with them.

Jim Obergefell: So on Tuesday, five days after we got married, Al came to our home. And during that conversation, he pulled [00:17:30] out that piece of paper that he had searched his files for. And it was a blank Ohio death certificate. And he said, now, my guess is you haven't really thought about this because why would you be thinking about John's death certificate when you just got married? But you guys, do you really get it? You understand that because of Ohio's Defense of Marriage Act, when John dies, his last official record as a person will be wrong. Ohio will say he's unmarried. And Jim, they're not going to list your name as his surviving spouse.

Nick Capodice: Jim went to court and he sued [00:18:00] eight days after their wedding.

Jacqui Fulton: Who was he suing?

Nick Capodice: Initially, he sued three parties, Governor John Kasich, Attorney General Mike DeWine and the city of Cincinnati itself, as these are the three parties involved with death certificates.

Jacqui Fulton: But they were married. Right. And the state of Ohio refused to recognize that marriage.

Nick Capodice: It did. And this was at the heart of their argument.

Jim Obergefell: Our legal argument was, in my opinion, so simple, so clear, so obvious, because [00:18:30] in Ohio, first cousins cannot get a marriage license. In Ohio, an underage couple cannot get a marriage license. However, if they're in another state, that that will issue marriage license to first cousins or underage couples. And they get married in that state as soon as they cross the border into Ohio. Ohio immediately says your marriage exists. You get all of the rights, all of the protections, all of the responsibilities of a married couple, even though your marriage is one that cannot be entered into in Ohio. [00:19:00] So our legal argument was Ohio. You're creating separate classes of people by recognizing some out-of-state marriages, but not others.

Nick Capodice: At the beginning of the hearing, the Cincinnati city solicitors stood up in the courtroom and said, we don't want anything to do with this. John and Jim's marriage should be recognized.

Jacqui Fulton: Wow.

Jim Obergefell: And at five o'clock that day, July 22nd, we won.

Jacqui Fulton: They won?

Nick Capodice: They did.

Jacqui Fulton: But if they [00:19:30] won in Ohio, how did their case get up to the Supreme Court?

Nick Capodice: Well, when John died and it came time to fill out that death certificate, the state had an opportunity to appeal, which it did. And so we get to the Supreme Court, four cases combined into one each with unique circumstances. And since Jim in John's case, had the lowest docket number, the Supreme Court case is to heretofore referred to as Oberg, F.L. v. Hodges.

Jacqui Fulton: Who is Hodges?

Nick Capodice: Yeah, this is interesting. Jim [00:20:00] told me that neither Governor Kasich or Attorney Devine wanted their name attached to the case. So the only respondent was the director of the Ohio Department of Health, Rick Hodges. And as a quick side story, sometime after the decision, a friend of Jim's asked if he wanted to meet Rick Hodges. And Jim was like,

Jim Obergefell: I don't know, Elena, do I? Because, you know, in my mind, even though I'd always thought he's he's just a name. He's just a fall guy, I had no idea. I had no no knowledge of this man, no clue [00:20:30] what he really thought. So we met and we are now close friends.

Nick Capodice: Rick Hodges wasn't even remotely involved with the case and supported rights for LGBTQ plus couples

Jacqui Fulton: Getting back to the case. What were the arguments in court?

Nick Capodice: Here's Melissa again

Melissa Wasser: When the cases were consolidated, the court determined what the legal questions were going to be. They had two. The first question was, does the Fourteenth Amendment require a state to license a marriage [00:21:00] between two people of the same sex? The second question, and only the Obergefell case, the other three cases dealt with the licensure of marriage. The Obergefell case was a little different because it was asking the state to recognize a marriage that was not performed in that state. So the second legal question is, does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed [00:21:30] and performed out of state?

Jacqui Fulton: It seems that whenever we're exploring civil rights cases in the Supreme Court, the Fourteenth Amendment, dealing with equal protection and due process for states gets brought up.

Nick Capodice: Yeah, and this time there's another constitutional issue. And this is exclusively related to Jim and John's case. It's Article four of the Constitution that something called the full faith and credit clause

Advocate: Of the 14th Amendment does not require states with traditional marriage laws to recognize marriages from other states between two [00:22:00] persons of the same sex.

Justice Scalia: What about Article four? I'm so glad to be able to quote a portion of the Constitution that actually seems to be relevant. Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. Now, why doesn't that apply?

Nick Capodice: I asked Jim, who was in court during the arguments, what he remembered, and he said that two arguments stood out.

Jim Obergefell: One of the justices brought [00:22:30] up the fact that in ancient Greece, based on what we know about Greek civilization, same sex relations were OK. But there's no evidence that that same sex marriage was allowed. Well, why not? Why not? Why do you think that is? And Mary Bonauto, who did the arguments for the right to marry, she said, Your Honor, I I'm in no place to even guess what ancient Greek philosophers thought or believed. It was just such a ridiculous argument. Who cares what [00:23:00] happened in ancient Greece? But then the other one, which I love again, I forget which justice this was brought up, that tired argument that, you know, those of us who were proponents of marriage equality, we were changing the definition of marriage because marriage had meant the same thing for millennia. And Ruth Bader Ginsburg jumped right in and said, no, I'm sorry. We already have changed the definition of marriage because women are no longer the property [00:23:30] of their husbands.

Nick Capodice: Also, Jim remembers this happening.

Jim Obergefell: There was somebody in the public seats who started screaming that we were all going to hell or things like that at the start, and you could hear him as they're dragging him down the hallway, even though the courtroom doors were closed, he had quite the volume,

Advocate: Just as if the court is ready. We're ready. OK.

Justice Scalia: That was rather refreshing, [00:24:00] actually.

Jacqui Fulton: Ok, so that's the anti-marriage equality folks, what are the arguments for it?

Nick Capodice: I think the argument was best summarized in the opening line of the argument from Jim and John's advocate, Mary Bonauto.

Mary Bonuato: Mr. Chief Justice, may it please the court, the intimate and committed relationships of same sex couples, just like those of heterosexual couples, provide [00:24:30] mutual support and are the foundation of family life in our society.

Nick Capodice: The arguments in court, where at the end of April 2015 and as the court reads decisions on Mondays in May and June, Jim started going to D.C. every single week.

Jim Obergefell: I knew I had to be in the courtroom to hear the decision. It I couldn't imagine not being there to hear what the highest court in the land said. You know, I also have to be honest, Nick, from the very start, like we're we're winning this. We're on the right side.

Nick Capodice: And as is often the case, [00:25:00] the Supreme Court has a lot of decisions to read. So they were adding additional days.

Jim Obergefell: But then we were outside the courtroom on the 22nd when someone came running out to say, well, they just added Thursday, June 25th, as a decision day. A few minutes later, someone else came running out and said, well, they just added Friday, June 26th as decision day. And I was there. I was there other attorneys on the case, plaintiffs. And we all looked at each other and said, it's going to be Friday, June twenty sixth. And [00:25:30] the reason we thought that was that's an important date for LGBTQ rights at the Supreme Court. United States versus Windsor, which struck down DOMA, came out on June 26, 2013. Lawrence versus Texas, which struck down anti sodomy laws, came out on June 26.

Nick Capodice: The decision was five four in favor of Obergefell. Justice Anthony Kennedy delivered the opinion. The decision states that both the due process clause and the equal protection clause of the 14th Amendment [00:26:00] guarantee the right of same sex couples to marry

Justice Kennedy: In forming the marital union. Two people become something greater than they once were and would misunderstand petitioners to say that they disrespect. Or diminish the idea of marriage in these cases, they're pleased that they do respect it, they respect it so deeply, they seek to find its fulfillment for themselves. They ask for equal dignity in the eyes of the law. And the Constitution grants them that right. For these reasons and others set out, in my opinion...

Jim Obergefell: And I burst [00:26:30] into tears. You could hear people around the courtroom sobbing. Al told me later because he was in the courtroom as well. He told me later that he has never seen so many attorneys crying in a courtroom. And, you know, of course, not surprising. My first thought was, John, I wish you were here. I wish you could experience this. I wish you knew that our marriage can never be erased. I wish you could know that. I will always have the [00:27:00] legal right to call you, to call myself your widower, to call You my husband and I miss him desperately. Then I also had this amazing realization that for the first time in my life as an out gay man, I felt more like an equal American than I ever had before.

Nick Capodice: And there were four separate dissents, one for each dissenting justice, and [00:27:30] in something rather rare, each Supreme Court justice usually does this like once a year, for the first time in his tenure on the court, Chief Justice Roberts read his dissent from the bench. Jim walked out of the courtroom. It was bedlam, celebration everywhere. He was being interviewed by CNN.

Jim Obergefell: And I finished that interview and I turned around. I'm looking at the courthouse and someone hands me my phone. He says, Jim, you have a phone call?

Melissa Wasser: [00:28:00]

Nick Capodice:

Jim Obergefell: And here I am in the midst of this joyful crowd having a conversation on speaker with President Obama.

Jacqui Fulton: Yeah, I remember seeing on the news tons of people getting married immediately. My friends were so excited. Some of them were crying and a lot of them made wedding plans that day. [00:28:30]

Nick Capodice: Yeah. And I just got some data on this. In 2019, the Census Bureau released an estimation that there are right now nearly one million Americans in same sex marriages. And that's one of the reasons, Jim says that regardless of the structure and ideology of the Supreme Court, this decision will last forever. It's hard for the Supreme Court to take rights away from people that it has previously granted. But he also says that the work's not done.

Jim Obergefell: I like to say, yes, [00:29:00] we have the right to get married in all 50 states, but we don't enjoy marriage equality. We're far from enjoying marriage equality. I mean, we still have businesses, photographers, bakers, event venues who don't don't want to even throw their business open to the public. If you happen to be a same sex couple, they they want the right to say that their religious beliefs are more important than someone else's civil and human rights. And there are still court officials [00:29:30] and judges who have stopped doing all marriages because they don't want to officiate marriages. For two people of the same sex.

Jacqui Fulton: Nick, it's a tremendous victory. But I just want to point out that this story doesn't have a happy ending. Just like how DOMA passed after the Hawaii case. There was a national backlash in the wake of the Obama decision, and this is specifically aimed at transgender legislation.

Nick Capodice: Jim told me about the recent Supreme Court case, Bostock v. Clayton [00:30:00] County, which ruled that an employer who fired someone for being gay or transgender violates the Civil Rights Act of 1964. But that decision was six to three, and it doesn't apply to everyone.

Jim Obergefell: But that doesn't apply to every job. That doesn't apply to everyone. So we still aren't equal in our job. So if you if you're married, you have a family and you lose your job because someone doesn't like you solely because you're LGBTQ plus. Well, that certainly isn't marriage equality in 2021.

Nick Capodice: There have been so far over [00:30:30] 100 bills introduced to restrict trans rights.

Jacqui Fulton: Yeah, I've actually been fired for being queer and it was devastating. There's nothing I could do about it. And this is something we see in every civil rights case. You can change legislation, but you can't change people's attitudes.

Nick Capodice: And, uh, that's it, I guess, not [00:31:00] just for this case, but for our civil rights and the Supreme Court. We hope you enjoyed it and we hope you follow us on Apple podcasts or Spotify or wherever you get your podcasts to keep finding out about how our government works. And make sure to visit our Web site, Civics101podcast.org, where you can get transcripts, teacher created lesson plans, activities and so much more. We've thanked her before during the series, but I'm going to do it again. These Supreme Court episodes would not have been possible without the tireless help [00:31:30] of Rebecca Fanning from the U.S. courts. She got such a tremendous number of judges to talk to us about these cases. It made our jobs so much easier. And you can check out any of their great judicial resources at U.S. courts dot gov. This episode was produced by me Nick Capodice with help from Jacqui Fulton, Hannah McCarthy, Mitch Scacci, and Christina Phillips. Erika Janik is our executive producer. Special thanks to person A, Fendall Fulton. Music in this episode from Blue Dot S [00:32:00]essions Cycle Hiccups, Randy Butternubs, Scott Gratton, Ikimashu Oi, and the wonderous Chris Zabriskie.

Jacqui Fulton: Also, I'd like to extend a special thanks to Jim Obergefell for.

Fendall Fulton: His and John's tireless efforts and all the others that put everything on the line to make it possible.

Jacqui Fulton: So we can be married.

Nick Capodice: All right.

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Made possible in part by the Corporation for Public Broadcasting.

Civil Rights: Loving v Virginia

Mildred and Richard Loving were jailed and banished for marrying in 1958. Nearly a decade later, their Supreme Court case changed the meaning of marriage equality in the United States — decriminalizing their own marriage while they were at it. This is the story of Loving.

Our guests are Magistrate Judge Zia Faruqui of the U.S. District Court for Washington, D.C. and Farrah Parkes and Brad Linder of The Loving Project.

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

Episode Segments

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Transcript

Loving v Virginia_DRAFT3.mp3

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

Mildred Loving: [00:00:05] And if if we do win we will be helping a lot of people, and I knew we have -- I knew we have some enemies, but we have some friends, too.

Hannah McCarthy: [00:00:16] Richard and Mildred Loving were newlyweds.

Mildred Loving: [00:00:19] I said I think that marrying who you want to is a right that no man should have anything to do with.

Hannah McCarthy: [00:00:24] They had known each other since they were kids. They grew up neighbors in Caroline County, Virginia.

Mildred Loving: [00:00:30] My Husband's father, he gave us a acre of land, right across the road. And that's where we're meant to build. And I'll be close to my mother and he'll be close to his family.

Hannah McCarthy: [00:00:40] They dated off and on for years before deciding to finally get married. In July of 1958 they'd been married for about five weeks. Mildred was pregnant with their first child together. At two a.m. on July 11th. The Lovings were asleep in their bed in their small home when they heard someone at the door and suddenly the front door was broken down. Police officers burst into their bedroom. They shined their flashlights into the Lovings' eyes

Richard Loving: [00:01:14] And they came one night and they knocked a couple of times. I remember before I could get up, you know, they just broke the door and come on in. And when we got up, they're standing beside the bed. With flashlights.

Mildred Loving: [00:01:28] They asked Richard, who was a woman he was sleeping with. I said I'm his wife and the sheriff said not here you're not.

Nick Capodice: [00:01:38] What what did the sheriff mean by not here you're not?

Hannah McCarthy: [00:01:42] Good question.

Hannah McCarthy: [00:01:43] This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:46] I'm Nick Capodice.

Hannah McCarthy: [00:01:47] And the answer to that is the story of Loving versus Virginia, the landmark Supreme Court case that determined whether a state could criminalize the act of marriage between a person of color and a white person, which is exactly the kind of couple Mildred and Richard Loving were.

Judge Zia Faruqui: [00:02:05] You have Richard Loving and Mildred Loving, and they can't get married in Virginia.

Hannah McCarthy: [00:02:10] This is Magistrate Judge Zia Faruqui of the District Court of Washington, D.C.

Judge Zia Faruqui: [00:02:15] They secretly go right to the Las Vegas, apparently of the East Coast, Washington, D.C., and get married. I can only imagine by an Elvis impersonator. And so they get married in the quiet of night and then returned to Virginia.

Mildred Loving: [00:02:29] You know, we went to Washington to be married. And I guess that's why, you know, we went there. People had been mixing all the time. So I didn't know any different. I didn't know there was a law against it, you know, and white and colored went to school different and things like that. They couldn't go in the same restaurant. And I knew that. But I didn't realize how bad it was until we got married.

Hannah McCarthy: [00:03:00] By the way, that is the voice of Mildred loving herself from an interview in the late sixties.

Nick Capodice: [00:03:05] And when Mildred says she didn't know how bad it was, she means until officers burst into her home and told her she was not legally Richard's wife.

Hannah McCarthy: [00:03:13] Not only you're not his wife, he's not your husband, but you're arrested for committing a crime. Richard and Mildred were living in violation of the Virginia State Racial Integrity Act of 1924.

Judge Zia Faruqui: [00:03:26] The Virginia statute has said that, you know, the punishment, you know, miscegenation is the term for it, which no one obviously ever says now or probably even then because it's such a mouthful, but that the statute says punishment for marriage. If any white person intermarriages with a colored person or any colored person, intermarriage with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one year and not more than five years.

Nick Capodice: [00:03:52] Hannah can I clarify something. It sounds like this law pertains specifically to people of color marrying white people, not to people of color marrying other people of color. Right. So in calling this the Racial Integrity Act, what it actually is, is a white purity act.

Hannah McCarthy: [00:04:10] Yes. The whole idea was to protect and preserve whiteness.

Judge Zia Faruqui: [00:04:14] You can be black and Hispanic person, and that would be totally OK. But you cannot be white and marry someone who is black or Hispanic and vice versa. And it has a criminal penalty. Right. So, you know, I think most people, when they hear this exist, they would think like, oh, they probably just invalidate your marriage license. Right. But this isn't that right? This isn't even a fine. This is we are going to put you in prison, imprison you for marrying someone if you are one of the two partners is white. And that's pretty severe.

Hannah McCarthy: [00:04:45] The act prevented intermarriage from happening in the state because it required that birth certificates, either to find someone is white or is quote unquote colored your only white. If for as far back as you could look in your family's history, your ancestry was white. The one exception, which is called the Pocahontas clause, allowed for one sixteenth or less of American Indian ancestry, everyone else was quote unquote colored. If an interracial couple that included a white person wanted a marriage license, that was not going to happen in Virginia. And even if you got married elsewhere, once back home, you better lay low. Still, Richard and Mildred knew of interracial couples in their own community who were left alone. Somebody had decided to make an example of them.

Richard Loving: [00:05:40] It's a lot of them down here but we're the only ones who have been bothered by it. It's a lot of the same down here.

Interviewer: [00:05:44] Is that right?

Richard Loving: [00:05:45] Yeah. Let's see, just it just some people that didn't like it they just talk, see, and started the dog rolling.

Interviewer: [00:05:53] Do you know any other couples who are in the same situation?

Richard Loving: [00:05:56] Yeah, I know some but I wouldn't like call them names.

Interviewer: [00:06:00] I just wondered if you did.

Richard Loving: [00:06:02] Yeah, I know a few.

Interviewer: [00:06:04] I wonder why they picked on you then?

Richard Loving: [00:06:08] I don't know, I'll never find out. Somebody talked.

Judge Zia Faruqui: [00:06:13] This was like a sting where they go and they were trying to catch them, you know, having adult relations in the middle in the law, I think to say inflagrante delicto. Right. And so they come in there, they have this sting, the raid, they go in there and in fact, they were just asleep and they wake them up and say, you know, you're under arrest.

Nick Capodice: [00:06:32] So what happened? Did the police really drag them out of their home in the middle of the night?

Mildred Loving: [00:06:36] And anyway they carried us to Bowling Green, locked us up and in January they had the trial and told us to leave the state for 25 years,

Nick Capodice: [00:06:47] So they're told to leave the state.

Hannah McCarthy: [00:06:48] The judge who sentenced them, Leon Bazile, commuted their one year prison sentence on the condition that they leave Virginia for 25 years.

Judge Zia Faruqui: [00:06:58] In effect, what happened is that they were banished to Washington, D.C., and that they just had to, you know, try to get their family to come visit them or not. So it's pretty disturbing.

Nick Capodice: [00:07:08] What did the Lovings do? Is this the moment when they decided to fight the ruling?

Judge Zia Faruqui: [00:07:12] They plead guilty because they're just like, again, this is just such a ludicrous, you know, proposition like, is this really worth fighting for? Because it just seems so silly. And so they're like, fine, we'll just leave Virginia and move to D.C., which is a D.C. resident who is in a mixed race marriage. I was very appreciative to see, you know, my forbearers from Washington, D.C. were already ahead of the curve.

Hannah McCarthy: [00:07:35] The Lovings leave behind their family and friends and move to Washington, D.C., the place where they were married. But it's expensive and it's a far cry from the expansive countryside where they had lived their whole lives.

Mildred Loving: [00:07:48] The children didn't have anywhere to play. They would like being caged. And I couldn't stand it. I couldn't take it.

Hannah McCarthy: [00:07:57] They couldn't visit their family in Virginia if they went together. In fact, they were arrested a second time during a visit home.

Judge Zia Faruqui: [00:08:05] What how do they handle this and becomes expensive and sort of living in D.C. So ultimately they decide, you know, we need help and they write to Attorney General Robert Kennedy and that he apparently responded and said, yeah, you should go to the ACLU. And you know that they maybe have some attorneys that can help you litigate this. And, you know, I was a prosecutor myself for a while. I don't think I ever got myself a little in the attorney general letters of request for assistance and they referred him out. But that's, you know, amazing that and to credit to Attorney General Robert Kennedy.

Bernard Cohen: [00:08:36] Who's the date. So we can be sure that was June 20th, 1963, and they were living in Washington, D.C. at the time.

Hannah McCarthy: [00:08:42] This is Bernard Cohen, one of the ACLU lawyers who ended up taking Mildred in Richard's case. This is from footage taken the same year that the case went to court. He's reading Mildred's letter to Bobby Kennedy.

Bernard Cohen: [00:08:53] Dear sir, I am writing to you concerning a problem we have. Five years ago, my husband and I were married here in the district. We then returned to Virginia to live. My husband is white, I am part Negro and part Indian. At the time, we did not know there was a law in Virginia against mixed marriages. Therefore we were jailed and tried in a little town of Bowling Green. We were to leave the state to make our home. We have three children and cannot afford an attorney. We wrote to the attorney general. He suggested that we get in touch with you for advice. Please help us if you can hope to hear from your real soon. Yours truly, Mr. and Mrs. Richard Loving. And it was that simple letter that got us into this not so simple case.

Nick Capodice: [00:09:38] I would imagine that every Supreme Court case is not so simple. So is the Loving's case somehow more so?

Judge Zia Faruqui: [00:09:45] It's a kind of a hard position to go back and vacate something that someone does that was knowing intelligent and voluntary. Right. Like they chose to plead guilty. And so withdrawing your guilty plea are trying to essentially vacated. That is procedurally pretty difficult.

Hannah McCarthy: [00:10:01] It's a lot of effort on the part of the ACLU lawyers, but they eventually figure out a way to get the Lovings case moving through the courts. They ask the original judge, Judge Bazile, to vacate, basically undo the conviction that ordered the Lovings to leave the state for 25 years. But Bazile doesn't do that.

Judge Zia Faruqui: [00:10:20] Pretty you know, disturbingly, he issues his opinion and he says the judge Bazile says that, quote, Almighty God created the races, white, black, yellow, Malay and red. And he placed them on separate continents. And but for the interference with this arrangement, there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to end quote. And so obviously, this judge was not sympathetic to the Loving's claims. And so they then appeal their case. And it goes to the Virginia Supreme Court.

Hannah McCarthy: [00:10:55] The Lovings lawyers Philip Hirschkop and Bernard Cohen brainstorm a game plan. Are they going for irreparable injury, for denial of basic rights?

Bernard Cohen: [00:11:06] What are the things that can only be done together by man and wife that they can do in Virginia? They can't come visit her parents together.

Law team: [00:11:14] or their friends.

Phillip Hirschkop: [00:11:16] Children, can't live with them and go to school.

Law team: [00:11:18] Breaking up the family ought to be irreparable injury, if anything.

Phillip Hirschkop: [00:11:21] This is strictly a segregation problem. And the Supreme Supreme Court has said time and again the federal courts have the right to protect federal rights, but it's a federal right to talk about that.

Bernard Cohen: [00:11:33] Let's go back to the office and get thing on paper.

Hannah McCarthy: [00:11:35] Ultimately, the Lovings lawyers argue that because Plessy versus Ferguson and separate but equal has been overturned in Brown vs. Board of Education, because due process of law and equal protection under the 14th Amendment in race cases has been upheld. The Virginia statute banning interracial marriage between white people and people of color is unconstitutional.

Judge Zia Faruqui: [00:11:56] So you would think in this instance you're going to get a good decision from the Virginia Supreme Court, but certainly that is not what happened. The Virginia Supreme Court says the ban is still appropriate.

Hannah McCarthy: [00:12:06] Basically, the court says that regardless of Plessy vs. Ferguson being overturned, the state can still use its powers to protect its citizens. Now, just because it can't use those powers to enforce school segregation, that doesn't mean it can't use them against interracial marriage because interracial marriage is considered bad for certain states citizens.

Judge Zia Faruqui: [00:12:29] There was the underpinnings of the question in terms of banning interracial marriage came from a, quote, legislative determination that there was a great deal of evidence. Now, on the podcast, people can't see, but I'm super passive aggressively putting evidence and air quotes, but quote unquote, evidence to support that intermarriage between people of color and white people is, quote, incompatible with the general welfare and therefore a proper subject for regulation under police power. And so this is the way they came to and said, yeah, Plessy said you couldn't use police power to separate students in a school. But that doesn't mean that you can't use police power to still do things to protect the community, to make sure that on racial lines it just means you can't do it for school.

Nick Capodice: [00:13:15] And presumably now that it's been denied in a state supreme court, this case can finally be appealed to the Supreme Court of the United States.

SCOTUS archival: [00:13:22] Number 395, Richard Perry Loving et al versus Virginia.

Hannah McCarthy: [00:13:34] The Supreme Court takes the case.

Phillip Hirschkop: [00:13:36] Mr. Chief Justice, associate justice may please the court. We will divide the argument accordingly. I will handle the equal protection argument as we view it. Mr. Cohen argued the due process argument. You have before you today we consider the most odious of the segregation laws and the slavery laws and our view of this law. We hope to clearly show that that is slavery law.

Hannah McCarthy: [00:14:03] Cohen and Hirschkop argue that the Virginia Racial Integrity Act violates the equal protection clause of the 14th Amendment, which is made a little simpler by the fact that that is exactly what Chief Justice Earl Warren asked them to do.

Judge Zia Faruqui: [00:14:19] We like to call this in the law a quote, a leading question a little bit. And so here's what question is. Whether a statutory scheme adopted by the state of Virginia to prevent marriages between persons solely on the basis of racial classification violates the equal protection and due process clause, the 14th Amendment. Yeah, that that's pretty self-evident. So, you know, when it's teed up like that, when you get cert, you're at the Warren Court, I think you're feeling pretty good.

Nick Capodice: [00:14:45] And what's the argument coming from Virginia?

Judge Zia Faruqui: [00:14:47] So this is a book by Dr. Albert Gordon, and he talked about the negative effects of interracial marriage on society, calling him, quote, undesirable and saying that they, quote, hold no promise for a bright and happy future for mankind, unquote. And so there definitely was this idea that the marriage itself but then always right. Like this is the same thing. And always in marriage equality, it's the same thing, then the same things. Later idea ideas like, oh, the poor children who will be victimized by this, you know, what's going to happen to them. And so the Virginia lawyers talk about this in their briefs to the U.S. Supreme Court.

Hannah McCarthy: [00:15:21] Lawyer Robert McIlwaine argued for the state of Virginia and his argument swirls around the same principle that the Virginia Supreme Court insisted upon. That the state could protect its citizens and because interracial marriage resulted in negative home environments, the state ought to prevent those marriages from happening.

Robert McIlwaine: [00:15:41] Intermarried families are subjected to much greater pressures and problems. It is not infrequent that the children of intermarried parents are referred to not merely as the children of intermarried parents, but as the victims of intermarried parents and as the models of intermarriage.

Hannah McCarthy: [00:16:01] It also argued, by the way, that because both the person of color and the white person in these cases was punished, it was equal punishment and so not unequal.

Robert McIlwaine: [00:16:11] The prohibition works both ways. You say a man that is prohibited from marrying into another race feels inferior. The prohibition also prohibits a white person to marry a colored person. [unintelligible]

Hannah McCarthy: [00:16:23] And I want to point out Cohen and Hirschkop hammer home not to the fact that this is a violation of equal protection under the law, not just the fact that the Virginia law violated the due process clause of the 14th Amendment, but also the fact that Richard and Mildred Loving loved each other.

Bernard Cohen: [00:16:39] And that is 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 or illicit cohabitation. The Lovings have the right to go to sleep at night knowing that should not should they not awake in the morning, their children would have the right to inherit from them under intestacy. They have the right to be secure in knowing that if they go to sleep and do not wake up in the morning, that one of them, a survivor of them, has the right to Social Security benefits. All of these are denied to them. As I started to say before, no matter how we articulate this, no matter which theory of the due process clause or which emphasis we attach to, no one can articulate it better than Richard Loving. When he said to me, Mr. Cohen, tell the court I love my wife and it is just unfair that I can't live with her in Virginia.

Nick Capodice: [00:17:44] I have to imagine standing before the Warren Court, the same court that had just declared racial segregation in schools unconstitutional. Virginia had its work cut out for them, and these ACLU lawyers were in pretty good shape arguing against this racist principle before Earl Warren. So what did the court end up ruling?

Judge Zia Faruqui: [00:18:04] The Supreme Court says the Warren Court says the reasoning behind them is, quote, obviously an endorsement of the doctrine of white supremacy, close quote. Right. So there you go. You know, you could have written the opinion in like one page. And, you know, and I think Justice Warren is doing that and he's like, let's just let's call this what it is. The court ultimately says, like, look, we're not looking at this after analysis of what happens afterwards and who's harmed does not harm. We're looking at the beginning part. We don't need to get in to see who's better. This is just wrong. It's white supremacy and it's it it is against the equal protection clause.

Hannah McCarthy: [00:18:36] And that could be enough. Right. But Earl Warren doesn't stop there.

Judge Zia Faruqui: [00:18:40] But what's super interesting is that they have at the end of the session, like put a put a rainbow start asterisks next to this. They make a due process. Also, rights to the Fourteenth Amendment has is two parts. You have to have equal protection law. But there's also due process. When you think of that normally is like I have to be able to have a you know, come to court. I have to have a judge there. I need to have my, you know, a lawyer there and things like that. But the court does say very briefly, you know, hey, marriage is a civil right and the Lovings are being denied of this freedom because they are being denied of liberty without due process of law.

Nick Capodice: [00:19:12] Ok, so is the court saying antimiscegenation laws, laws banning interracial marriage are unconstitutional, full stop?

Hannah McCarthy: [00:19:19] That's right. Now, at the time this case was argued, 16 states had laws banning the marriage of a white person to a person of color. The opinion written by Warren calls these laws, quote, odious to a free people and said the Virginia Racial Integrity Act had no legitimate purpose, quote, independent of invidious racial discrimination.

Nick Capodice: [00:19:40] Hannah How long did it take for all states to eliminate antimiscegenation practices?

Hannah McCarthy: [00:19:46] The last state to eliminate antimiscegenation law from their books was Alabama in 2000. Now, law is not the same thing as practice. Still, it took over 30 years to scrub this form of white supremacy from all of the books.

Judge Zia Faruqui: [00:20:05] It is shocking that it took to the year 2000 for Alabama to become the last state to adopt that decision, and that what's even more shocking is it was a ballot initiative, right? Like that. People had to go out and vote as to whether or not it was OK for me to marry my wife.

Hannah McCarthy: [00:20:22] Judge Faruqui pointed out that antimiscegenation law probably was not enforced, even in states that still had laws like that on the books. Terms of implementation, it wasn't like eliminating segregation in schools. There were no tactical bussing questions to address, no public education funding to reappropriate. This was about a personal decision between two people

Judge Zia Faruqui: [00:20:45] Not to be cheesy, but black and white. Right. Like you just can't get married. And so it was, I think, a lot easier to implement, certainly, than Brown or something like that. But you see that it there were, you know, the the poison or the animus behind it. It's still lingered and went on.

Nick Capodice: [00:21:05] Yeah, to that point, Hannah, that the lingering on and not just the poison, but the positive legacy as well, how did Loving v. Virginia change life in the U.S.?

Hannah McCarthy: [00:21:16] Well, I feel like a testament to Loving's legacy really shines. In this podcast, I discovered it's called The Loving Project. It was made by a married couple, Farah Parks and Brad Linder, put together in twenty seventeen.

Farrah Parkes: [00:21:30] So Brad and I got married in between the summer between my two years of grad school and that fall in my family law and social policy, I learned about Loving v. Virginia and was just struck by how recent it was.

Hannah McCarthy: [00:21:45] Farrah and Brad are an interracial couple and it occurred to them that they could just interview other interracial couples about being together, that that was the best way to commemorate the decision that allowed certain interracial couples to get married in the first place. And they interviewed couples who had been married for a few months and couples who had been married for 50 years. So in terms of what life might have been like for an interracial couple immediately after loving

Farrah Parkes: [00:22:12] The couple that got married the year after, loving and, you know, met in the South, he was at Vanderbilt, she was at Fisk. And and to think of the bravery they had to have shown and Florence, you know, pretty fierce, but it's like a big teddy bear, you know. And he tells a story about the time when he bought a gun because he could see people following them on the highway. And, you know, Laura Knoy found out later and was like, we're not doing that, just the fact that they persevered through all of that and also just the fact that they were forced into these, you know, sort of hard decisions like buying and carrying a gun. You know, this really just sweet, affable guy sitting in front of you being like, well, I was going to get a gun to protect my life and my family. You know, it was just so powerful to hear that and and also to just have seen them come out on the other side and just, you know, be happy and successful in their kids and grandkids. And they're my heroes.

Nick Capodice: [00:23:19] So for this couple who are only able to marry because of Loving v. Virginia, that case is a seminal moment in their lives. And they lived through what that decision and other civil rights decisions could not do, which is to magically eliminate racism and its threats in the U.S.. But I want to know about newly married interracial couples. Did they think about Loving what it did or what it didn't do?

Farrah Parkes: [00:23:43] It was definitely a bigger deal for the older couples because they had just been so much sentir about, you know, social center as well as, you know, the loving decision being recent. But in terms of anybody that got married, you know, like after 1980 or so, I'm not sure it was there was necessarily necessarily a variation. I do think that the gay couples like because they because same sex marriage was so new, loving was a bigger thing in their minds because they also recognized, you know, the ways that this marriage hadn't been legal nationwide until 2015. You know, that there were precedents for that.

Hannah McCarthy: [00:24:26] And as far as walking through life as an interracial couple and confronting racism together, Farrah and Brad told me that, of course, that did come up in a lot of interviews.

Brad Linder: [00:24:37] People did sort of learn how to walk through the world together as a couple and deal with the fact that they might not be always seen the same way by other people.

Farrah Parkes: [00:24:49] Yeah. And just sort of developing, you know, a greater understanding of racial dynamics in this country. Not that, you know, they are the white partner is completely, you know, cleansed of all, you know, sort of the racism that everybody walks around in and just inherent everywhere but that they develop a better understanding of what it is that people of color go through. And then also just, you know, the sharing of different cultural traditions.

Hannah McCarthy: [00:25:18] And for Ferrah, part of the reason she wanted to commemorate this case is because it is so recent, because it was a decision made by flesh and blood, men in black robes, men who can change their minds.

Farrah Parkes: [00:25:33] It's scary, actually, I think, to realize that it was so recent. Like if you had asked me before I learned about loving, if there was a time when when people of different races could marry, I would have said yes. But if you had asked me to guess when that ended, I probably would have guessed a lot earlier than 1967 and the fact that it was so. You know, tenuous I mean, you know, the Supreme Court, you know, it is the law of the land, but it's still, you know, the courts can change and and judges change. And so there's also the sense that, you know, these things could change. And it's not sort of enshrined into it's not in the constitution. Right. And it's only in certain states laws. So I think it's scary to think about how. Some people, humanity and some people's rights are really being held on by a thread,

Nick Capodice: [00:26:41] And this brings me, Hannah, to the question we always ask why do we talk about the Supreme Court cases? Why are they important to return to or to celebrate as fair? And Brad did. And I think it's in part because there are moral beings at their core, people who made a decision to preserve a right. And people could make a decision to dismantle that right as well, but either way, the reason they come to that decision is in part based on their being flesh and blood, changeable human beings who see humanity and others. So we talk about these cases to remember what people recognized as a civil right and why they chose to uphold it so that we will know in the future what to point to if that right is challenged.

Hannah McCarthy: [00:27:24] And in the case of Loving v. Virginia in particular, we are talking about a man and a woman who loved one another and wanted to be married, live in the same home, raise their children and the judges who said, yes, that is your right. They didn't just make that decision based on the Constitution. They made it because they heard a story about human beings. And it was a good one, actually. Judge Farooqi brought this up, you know, yes. Judges passed down rulings based on the language of the Constitution. That's where law locates justice and injustice. But a sense of injustice that's also a feeling right and wrong, are defined by our founding documents and by our moral compass. To people, loving one another is not some fun anecdote in oral argument. It's the core of this case. It's part of what makes Loving v. Virginia a landmark case.

Judge Zia Faruqui: [00:28:22] We're not just robots, we're not automatons. We're just sitting and blindly looking. This I bring my life experiences with me to court as a judge, as a person in an interracial marriage. Sure. That comes to mind what would have happened if at the Virginia State Court there was someone who loved a black woman? There's someone who he was you know, he was Native American. Perhaps they would have said like the same result. But at least as they were thinking about it, they think about how does this make the Lovings feel? Right. And so that's my second point as to why this is super important. It's really upsetting. I mean, it really is. I mean, I'm NMI. So I think about most things now in terms of my kids and my daughter, who when she was, I guess, like seven pre pandemic and came back from class, was like, wait, like what happened to black people? I don't understand. You're like, oh my God, I don't even know how to begin this conversation. And I talked about loving. So because it's something that was really easy for me, because it obviously affects us. I was like, you know, there used to be a law that mama mama couldn't get married. And like, why? I was like, that's a good question. And, you know, it's but it is I want not only because of vigilance, but I just want her to appreciate and me to appreciate, like nothing is for granted that we shouldn't take anything for granted and like, hurt has happened and hurt requires, you know, thoughtful reflection upon it. And then also remedies. Right. Like what was a remedy for the Lovings?

Hannah McCarthy: [00:29:44] Richard and Mildred Loving won their case. An interracial couples won the right to marry without persecution. The Lovings raised their kids in Virginia. Richard died in a car crash at the age of 41, a crash that Mildred survived. She died in 2008 at the age of 68. And though neither of these individuals considered themselves history makers, they were only doing what they thought was right. Their case has been cited again and again in marriage equality cases. It was a major precedent case in the decision of Oberg, AFLD v. Hodges in 2016, the case that upheld the right to same sex marriage. Mildred did not live to see that case, but up until the end of her life, she did maintain a sense of right and wrong when it comes to love. Here's what she said on the fortieth anniversary of her court case.

Judge Zia Faruqui: [00:30:33] And so she issues this statement June 2007. She says, My generation was bitterly divided over something that should have been so clear and right. The majority believe that what judge said that it was God's plan to keep people apart and the government should discriminate against people in love. But I have lived long enough now to see big changes. The older generations fears and prejudices have given way in today's young people realize that if someone loves someone, they have a right to marry, surrounded as I am now by wonderful children and grandchildren. Not a day goes by. They don't think of Richard and our love, our right to marry and how much it meant to me that freedom to marry the person precious to me, even if others thought that was the wrong kind of person for me to marry. I believe all Americans, no matter of their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others, especially if it denies people civil rights. I'm still not a political person, but I am proud that Richard and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support that freedom to marry for all. That's what Loving and loving are all about.

Hannah McCarthy: [00:32:11] This episode was produced by me, Hannah McCarthy with Nick Capodice, Christina Philips is our senior producer. Our staff includes Jacqui Fulton and Mitch Schacci. And Erika Janik is our executive producer music in this episode by Chris Zabriskie, Daniel Birch, Xylo Ziko and Crowander. We have so many more resources and so many more episodes. You can find all of them at Civics101podcast.org. And don't forget, you never have to miss a single Civics 101 episode. Follow us on Apple podcasts or wherever you get your podcasts. And while you're there, leave us a review. We want to know what you think of us. And a very special thanks to Rebecca Fanning of the U.S. courts for all of her help, both on this episode and this entire Supreme Court series. 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.

Civil Rights: Brown v Board of Education of Topeka

Five cases, eleven advocates, and a quarter century of work; Brown v Board of Education of Topeka addressed this question: does racial segregation in schools violate the 14th amendment?

Walking us through the long journey to overturn Plessy v Ferguson are Chief Judge Roger Gregory and Dr. Yohuru Williams. They tell us how the case got to court, what Thurgood Marshall and John W. Davis argued, and how America does and does not live up to the promise of this monumental decision.

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

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Transcript

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

Nick Capodice: [00:00:05] Since the first one appeared on the docket in 1791, there have been thousands of cases argued in the U.S. Supreme Court and each one arrived there in a different way. An individual burned a flag.

Speaker3: [00:00:17] Whatever pain freedom of expression may inflict, [00:00:20] it is a principle on which we can give no ground.

Nick Capodice: [00:00:23] Another was not informed of their rights upon arrest.

Speaker3: [00:00:27] Miranda petitioner versus Arizona.

Nick Capodice: [00:00:30] The president refused to hand over secret recordings

Speaker3: [00:00:33] That the Constitution means what he says it does and that there is no one, not even the Supreme Court, to tell [00:00:40] him otherwise

Nick Capodice: [00:00:41] These become landmark cases after they're decided. But sometimes there's an issue that's so divisive, so prevalent in the minds of Americans that a case is a landmark before it even gets there, a case that lawyers and doctors, [00:01:00] sociologists and activists had been working on for a quarter of a century before its day in court.

Judge Roger Gregory: [00:01:07] Sometime, you know, you go through things like, well, you know, I didn't know at the time, but they knew at the time they were riding in lightning.

[00:01:20] Every. [00:01:20] I can recommend people

Speaker3: [00:01:29] You've got to go to it not only in you getting so many people, I mean, the Feltes main just gravity. Oh, [00:01:40] I wouldn't want to get all the hate in their heart. What about you, sir? Do you think they got to go back to school?

[00:01:48] And I say segregation now. Segregation tomorrow.

Nick Capodice: [00:01:59] You're listening [00:02:00] to Civics 101, I'm Nick Capodice.

Hannah McCarthy: [00:02:02] I'm Hannah McCarthy,

Nick Capodice: [00:02:03] And today we are learning about one of the most landmark landmark decisions in U.S. history, a case that was actually five cases rolled into one, all of them asking this simple question, does racial segregation in schools violate the 14th [00:02:20] Amendment is separate but equal equal. This is Brown versus Board of Education of Topeka, Kansas, 1954.

Hannah McCarthy: [00:02:29] How does such an enormous question even end up before the Supreme Court?

Judge Roger Gregory: [00:02:35] Well, the best way to start it is in 1896, the Supreme [00:02:40] Court handed down the decision of Plessy vs. Ferguson. Briefly. It is known for its ruling that state mandated segregation of the races would not violate the 14th Amendment of the Constitution if those accommodations or services are equal.

Nick Capodice: [00:02:59] This is Chief [00:03:00] Judge Roger Gregory

Judge Roger Gregory: [00:03:01] I'm the chief judge of the United States Court of Appeals for the 4th Circuit. The 4th Circuit encompasses the states of Maryland, West Virginia, the North and South Carolina.

Yohuru Williams: [00:03:12] Well, what you witnessed in the aftermath of Plessy is the kind of gradual adoption of separate but equal as we know it today. [00:03:20]

Nick Capodice: [00:03:20] And this is Dr. Yohuru Williams. He's professor of history and founding director of the Racial Justice Initiative at the University of St. Thomas.

Hannah McCarthy: [00:03:27] Gradual adoption of separate but equal. In other words, segregation laws didn't happen overnight.

Nick Capodice: [00:03:35] Yeah, we see this in so many Supreme Court decisions. It takes time [00:03:40] for the effects of these big rulings to change laws and customs state by state.

Hannah McCarthy: [00:03:45] What did segregation look like in the United States in the first half of the 20th century before Brown v. Board?

Yohuru Williams: [00:03:52] So it's not immediate that segregation signs go up, but over the course of the 30 years post Plessy, you actually begin [00:04:00] to see kind of the advent of this rigid system of segregation, which most of us associate with the white and colored signs. For example, the first municipality to enact the residential segregation ordinance is Baltimore, Maryland, in 1910. That's relatively late. So you're looking at certainly [00:04:20] a segregationist impulse and you're certainly looking at efforts by municipalities and private businesses to segregate. But it's informal and haphazard in some sense, and it increasingly becomes more formalized

Nick Capodice: [00:04:36] And in terms of education. This resulted in massive disparities [00:04:40] in school funding. Many states were spending three times as much on white students than Black students, and some were even more disparate; for every five dollars spent on a Black child in South Carolina. Fifty three dollars was spent on a white child.

Yohuru Williams: [00:04:55] And then by the time you get to the 19 teens and nineteen twenties, segregation [00:05:00] as we know it, in the form that we're most familiar with, it is is pretty much entrenched in the United States, particularly in the former states to the old Confederacy.

Nick Capodice: [00:05:11] But before you think I'm saying that segregation was a purely Southern institution, it was widespread throughout the entire U.S. in completely different ways. And to explain [00:05:20] this, Yohuru defined two terms for me, de juri and de facto segregation. De juri is by law, de facto is by custom or practice.

Yohuru Williams: [00:05:30] A good example of that would be segregation ordinances that require African-Americans or the white and colored races to go to separate schools or residential [00:05:40] segregation ordinances which deny African-Americans and whites to occupy homes domiciles within the same block. That's there by by law.

Nick Capodice: [00:05:51] And while during segregation was more common in the Southern states, de facto segregation was in the North.

Yohuru Williams: [00:05:56] You'd have de facto segregation at education because [00:06:00] because African-Americans, like immigrants, move into neighborhoods which are predominantly comprised of people from that race or that ethnic group, then the schools and the businesses and everything that's in that community by default is predominantly African-American and predominantly Italian or [00:06:20] whatever it may be. The difference with the ethnic immigrants is that eventually they're able to escape those spaces. But for African-Americans, thanks to practices such as redlining, that becomes literally in and of itself a prison and they're not able to escape,

Hannah McCarthy: [00:06:38] I feel like redlining should be an entire episode [00:06:40] of Civics 101. But can you just give a short definition of it?

Nick Capodice: [00:06:44] Sure. Briefly. Redlining grew out of the New Deal in the 1930s. In an effort to increase the number of American homeowners, the government increased federal loans for homes, but mortgage lenders refused to grant those loans. The people who lived in, quote, [00:07:00] hazardous neighborhoods, those were predominantly neighborhoods with a large Black population.

Speaker3: [00:07:06] We have absolutely no one in the south, those areas which have been segregated for at least 100 years.

Nick Capodice: [00:07:15] So by the time we get to the 1950s, about 11000 school districts in the country, [00:07:20] the majority are segregated. It was required in 16 states and optional or not forbidden in another 18. So that's where we are. School segregation wise when the court hears the case in 1952.

Hannah McCarthy: [00:07:35] So what was happening with the opposition to segregation leading up to this case? [00:07:40]

Nick Capodice: [00:07:40] The NAACP, the National Association for the Advancement of Colored People began the legal fight against segregation in the early 1930s. Charles Hamilton Houston, he was a graduate of Harvard Law, became their first legal counsel. Houston later worked at Howard University, where he and Thurgood [00:08:00] Marshall and others started, in essence, a think tank. Legal minds from across the country working to conceive a strategy to take on separate but equal.

Hannah McCarthy: [00:08:11] And what did their strategy end up being?

Nick Capodice: [00:08:13] Here's Judge Gregory again.

Judge Roger Gregory: [00:08:15] So basically, let's take Plessy, even though we don't like it, at its word. Forms were filed. [00:08:20] These suits, whenever there's demonstrable differences in the facilities, is clearly unequal. So you bring litigation. And the overall strategy was it was a war of attrition.

Nick Capodice: [00:08:35] Their legal strategy at first focused on the equal part of separate but equal, [00:08:40] schools could segregate as long as they had equal facilities. So the NAACP found instances where schools clearly did not. But providing equal facilities cost a lot of money, money that many institutions didn't have.

Yohuru Williams: [00:08:54] The idea was we need to undermine the doctrine of Plessy vs. Ferguson in all [00:09:00] aspects of American life. They realized, for example, that in terms of education, the best case they can make early on is a graduate professional education. Why will they make the case that if a law student wants to practice law in a particular state, but the state's answer to not maintaining a separate [00:09:20] facility for quote unquote colored students is to send that student anywhere in the country they want to go provide full tuition. The state saying we're offering you a deal here. We're saying you can go wherever else eventually. Thurgood Marshall, Charles Hamilton, Houston, they'll come to the conclusion, you know, kind of brilliantly, Thurgood [00:09:40] Marshall, the case of Murray vs. Maryland that, well, that's inherently unequal because you're denying that student access to those facilities within the state that ultimately would be successful for them to be able to work and be successful as an attorney in that state.

Nick Capodice: [00:09:55] And this was a particular situation that Thurgood Marshall knew very well because he [00:10:00] wanted to go to the University of Maryland law school and had been denied admission. And so he went to Howard, a historically Black university. But this strategy, focusing on higher education, worked.

Judge Roger Gregory: [00:10:12] So for the first time in these cases, there were victories. But the victory was this. The court recognized that [00:10:20] there were intangibles about the educational process that you couldn't make because these schools, because the states responded, said, OK, we'll start a new law school. And the court said, wait a minute, a law school that's newly minted months old versus University of Oklahoma. University of Texas, [00:10:40] it's it's it's almost a joke to consider that to be equal. So therefore, admission was allowed. So that was a good part. But the bad part is that these cases did not take on Plessy head-on. It dealt with equalization.

Nick Capodice: [00:10:56] That is, until 1950. Charles [00:11:00] Hamilton Houston died and Thurgood Marshall became the head of the legal team of the NAACP. And he shifted the strategy, saying, we are no longer fighting for equal, we're fighting against separate. And he and his team selected five cases to submit to the Supreme Court to overturn Plessy v. Ferguson.

Hannah McCarthy: [00:11:20] Yeah, [00:11:20] OK, so I always thought the Brown v. Board was just one case with one plaintiff. What were these other cases about?

Nick Capodice: [00:11:28] All right, here's a summary of the five cases that we now know as Brown v. Board of Education. No. One, Briggs v. Elliott. Harry Briggs lived in Summerton, South Carolina, where his son and others had no [00:11:40] bus transportation whatsoever to their Black elementary schools, which were little more than wooden shacks. And they would walk, in some cases eight miles to school, #2, Bowling v. Sharpe, a group of 11 Black junior high schoolers who were refused admission to an all white school in Washington, D.C. Their Black-only schools [00:12:00] were shown to be grossly unequal. Number three, Belton v. Gebhart. This was a case where students in Delaware were riding busses an hour to get to their crowded one room school. Number 4, Davis V County School Board of Prince Edward County. This is the only case that started from a protest. 16 year old Barbara Rose Johns led [00:12:20] a walkout of her school to protest unequal conditions. And finally, number five, Brown vs. Board of Education of Topeka, which interestingly, is the only case where school facilities were found to be equal and in some instances superior. But the qualification of teachers was called into question.

Judge Roger Gregory: [00:12:39] These cases [00:12:40] were meticulously chosen because they wanted the facts to be different. Washington, D.C., federal jurisdiction, not state Delaware state case. And they won the case. They were respondents. There was some schools where Blacks attended where it was at least equal to the whites. So they wanted [00:13:00] to make sure this wasn't just about you take on Plessy because the argument what they wanted to make is even if the school is equal or better, there's something inherently, inherently. Unequal about separation.

Hannah McCarthy: [00:13:17] It was a strategy where they wanted to cover all of [00:13:20] their bases.

Nick Capodice: [00:13:20] Yeah, Judge Gregory said they were thinking through all the possibilities with these cases to make sure that there was no wiggle room.

Judge Roger Gregory: [00:13:27] And the key is this. They want to make sure that when they won, that this would settle it for all America. You couldn't say, oh, that was the state not about [00:13:40] federal. No, it's state and federal. Whatever was...every fact was and you couldn't say, well, that was the Blacks in poverty. No, they had several Black physicians, Black professors, teachers. It didn't matter. Segregation, it was harmful. And they wanted [00:14:00] to cross the whole spectrum. No matter what the circumstance, the harm is done to the Black kids who are denied based solely on race.

Nick Capodice: [00:14:10] And now we come to the argument in the court, the case or cases, I should say, were argued in December 1952 to answer the question, [00:14:20] does segregation violate the equal protection clause of the 14th Amendment?

Hannah McCarthy: [00:14:24] Who are the lawyers who are actually making the arguments in the court?

Nick Capodice: [00:14:28] Due to this being five cases, there were 11 lawyers as advocates. The two most famous, though, were in one corner arguing against Plessy v. Ferguson, Thurgood Marshall. [00:14:40]

Speaker3: [00:14:40] Well, when you live in a segregated community, you find that one group has everything and the other group has little, if anything.

Nick Capodice: [00:14:47] And in the other, arguing that states had a right to segregate John W. Davis,

Speaker3: [00:14:53] The state establishes the schools. It pays the funds and it has the sole power to educate its citizens [00:15:00]

Nick Capodice: [00:15:01] Since there isn't any archival I can find if John W. Davis, that is from the wonderful TV miniseries Separate but Equal, Burt Lancaster's final role.

Hannah McCarthy: [00:15:09] And what were Marshall's and Davis's arguments?

Nick Capodice: [00:15:12] Ok, first, a man who had appeared in the Supreme Court one hundred and forty times, John W. Davis,

Judge Roger Gregory: [00:15:18] John W. Davis [00:15:20] at the time was considered to be the most eminent and prominent lawyer in America. He was former president of the bar. You know, he was a candidate for president. He was ambassador to England. I mean, he he was just awesome. He made it simple. He said, court, you are [00:15:40] interpreting the 14th Amendment and you're your power, if it exists, must exist to the 14th Amendment. To end segregation. So let's look at what the framers let's look and see what their intent was.

Nick Capodice: [00:15:57] Davis had three main arguments based [00:16:00] on what he saw as the intent of the people who wrote the 14th Amendment. Number one, the Freedmen's Bureau, which was created in 1866, established segregated schools so Congress could not have meant to end segregation. Number two, Davis talked about how Senator Charles Sumner proposed that four formerly Confederate states to be readmitted [00:16:20] to the Union. They had to desegregate and that proposal failed. And finally, number three, Congress operated segregated schools in Washington, DC

Judge Roger Gregory: [00:16:30] So how could the same Congress met to end segregated schools in the 14th Amendment when they turned around were operating segregated [00:16:40] schools at the same time? So this is first attack. Justices, you can't do this when the framers clearly laid the breadcrumbs to show that that couldn't have been their intent.

Hannah McCarthy: [00:16:53] So Davis wasn't interested in arguing about equality. He was only arguing about the intention [00:17:00] of the man who wrote the 14th Amendment.

Nick Capodice: [00:17:03] Yes, Davis admitted schools were not equal and they should be. But he said the states just needed time to do it.

Hannah McCarthy: [00:17:12] And what was Thurgood Marshall's answer to this?

Nick Capodice: [00:17:14] Marshall hardly focused on the intent of the framers at all.

Judge Roger Gregory: [00:17:17] He said, and this is where he really put it to the court, that the [00:17:20] only thing he could think of to rationalize this is that somehow it was important to keep these people who had come up from slavery to keep them as in a position or status as close as possible to that condition of enslavement as [00:17:40] you can. And is now is the time for the court to say that that is not what the Constitution stands for and to make that clear. So he took it right on. He said basically you have to adopt that view. That is something intrinsic about the Black race, [00:18:00] that it must be kept in an inferior status close to slavery is possible contrary to the 13th Amendment, of course, because it says all vestiges of that servitude beautiful how he tied that into a 13th Amendment theme. And to continue what the court said, the Constitution still stands for that in nineteen fifty [00:18:20] three. That was his response to Davis, which was all just just brilliant. You have same schools, equal schools, same funding, beautiful building. It doesn't matter. Then what he did. It put together not just arguments from lawyers, but a team of experts that were awesome, Dr. Kenneth Clark, who [00:18:40] did Black Doll study and showed how these Black kids were shown dolls and rejecting really themselves

Archival: [00:18:48] As the nice dark. Which doll is the bad doll,

Nick Capodice: [00:18:56] Kenneth and Mamie Clark's doll test asked Black children to point to a Black or [00:19:00] a white doll when asked, which is the smart doll, the polite doll, or which is the ugly doll, which is the naughty doll. And these children overwhelmingly pointed to the white doll for all the positive traits and the Black doll for all the negative ones.

Judge Roger Gregory: [00:19:14] What compels the court to act is to show a harm. And they use [00:19:20] the tort model, which means in law a wrong, the wrong is the physical and mental damage done to the child. Had to be a moment of just tearful moment, but also a moment powerfully that for the first time to show in terms of the amount of science that these things are real and they're very [00:19:40] devastating and Marshall made it clear. We may have done it long and announced it long but these have become echoes of real harm to real children.

Nick Capodice: [00:19:54] The court hears the arguments in 1952 and says come back in a year and argue it [00:20:00] again,

Hannah McCarthy: [00:20:00] Why did they do that? Why not just issue a ruling? Then and there?

Nick Capodice: [00:20:04] The court was divided on the issue and some justices felt that if this decision was not unanimous, pro segregationists could use that to delegitimize the ruling. And so Justice Felix Frankfurter proposed a new hearing [00:20:20] as a stalling tactic to build consensus, impossible as it seemed at the time. But before that second round of arguments, something big happened.

Speaker3: [00:20:30] President Eisenhower appointed Governor Earl Warren of California as chief justice of the Supreme Court. The 62 year old Calif.

Nick Capodice: [00:20:37] What happened is this. Chief justice, Fred Vinson, [00:20:40] who had presided over the first Brown v. Board arguments, died in 1953, and President Eisenhower needed to appoint a new chief justice. And he had promised former California Governor Earl Warren, who is just about to take a job as Eisenhower solicitor general, that he'd have the next vacancy that opened up in the court and Earl Warren was nominated to be the [00:21:00] next chief justice. The case was argued again in December of nineteen fifty three. And on May 17th, 1954,

Speaker3: [00:21:08] On May 17, the court ruled unanimously that segregation in public schools was not legal.

Nick Capodice: [00:21:15] Separate but equal is a violation of the Fourteenth Amendment overturning [00:21:20] Plessy v. Ferguson and ending school segregation. And it was unanimous. Scholars agree that while the ruling would have been the same if Vinson hadn't died, the unanimity was secured by Chief Justice Warren. He convinced one justice to drop his concurring opinion and another to drop his dissent. And Warren himself [00:21:40] wrote the opinion.

Judge Roger Gregory: [00:21:41] The opinion is beautiful in its simplicity and brevity. The court said quite plainly, we cannot determine the intent. Brilliant. We can't do it. They didn't hem and haw and try to, you know, pontificate and scratch their chins like some opinions do. We [00:22:00] can't tell. So we move on. And we must assess in modern day time. What is the importance of education? So that's how he got to it quickly. And what he said, there's nothing probably more important in a state and local government function to educate its children. It [00:22:20] is the window through which everyone develops, how they become a thinking person. How democracy thrives. Because people are able to function and be productive and understand their rights and those things. And he doubts that in a court of law they say that any child could succeed without an education.

Nick Capodice: [00:22:38] Warren's opinion ends with "we [00:22:40] conclude that in the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal."

Judge Roger Gregory: [00:22:51] It reminds me of Alexis de Tocqueville in 1830, traipsed about America and wrote American Democracy. He said America's [00:23:00] greatness is not because we are more enlightened than other nations. He said Our greatness is our ability to repair our faults. And I can't think of a better example of that than Brown.

Hannah McCarthy: [00:23:16] But what next? How does desegregation [00:23:20] happen in those 11000 school districts?

Nick Capodice: [00:23:23] The Supreme Court made a new ruling in 1955, which they just called Brown vs. Board of Education of Topeka II to give their recommendations and how the decisions should be implemented. Now, remember, the Supreme Court interprets the law. They can't enforce it. They can't fine a school or [00:23:40] arrest a principal for refusing to desegregate. But they did use four famous, some now say, infamous words about how desegregation should happen "with all deliberate speed." Here's Yohuru Williams again.

Yohuru Williams: [00:23:55] It's not so much that Brown led to immediate desegregation. [00:24:00] In fact, the language of the court itself becomes contested. What does all deliberate speed mean? You've got some municipalities who look at that after they, you know, exhaust efforts at interposition and nullification and other efforts, Governor Lindsay Almond in Virginia closes the schools for a year rather than see them open on an integrated basis. Then you've got other places, [00:24:20] you know, other states that go. Well, all deliberate speed. We think that we can accomplish this by nineteen eighty. So they're kind of kicking the can down the road.

Nick Capodice: [00:24:28] The timeline of desegregation of schools is lengthy. Most famously in 1957, a white mob of protesters as well as the Arkansas National Guard prevented nine students from attending Central [00:24:40] High in Little Rock, Arkansas.

Speaker3: [00:24:42] Little Rock, Arkansas. And the first phase of the trouble, the white population are determined to prevent college students from going to the school. Their own children attend picketing the school. They clash with the police. The law of the land agrees

Nick Capodice: [00:24:55] In response, President Eisenhower federalized the National Guard [00:25:00] and sent 1000 soldiers from 101st Airborne to protect those students.

Hannah McCarthy: [00:25:05] And so at what point was total desegregation of schools actually achieved in the United States?

Nick Capodice: [00:25:13] The answer to this is complicated because while no public school officially says this is a segregated [00:25:20] school, schools in America are enormously segregated. A study in 2016 found that over half of American schoolchildren attend a school that is predominantly white or predominantly Black. And the barrier to integration is due to income inequality, to unequal practices like redlining, even to the placement of train [00:25:40] tracks in a town. But the fact is, schools in America do remain segregated.

Yohuru Williams: [00:25:46] I think part of the challenge with Brown in this kind of tortured relationship with Brown is that there's a recognition on one hand that Brown versus Board of Education was an important milestone [00:26:00] in the struggle for Black equality, no matter what, in terms of how we think about what it actually accomplished, it repudiated the doctrine of separate but equal. The problem is that it's an articulation of principle. And in practice, Brown really hasn't achieved. In fact, one could argue that the efforts to maintain [00:26:20] the segregationist impulse were so insidious that things are worse today when people make the argument that, you know, maybe we should retreat from the promise of Brown versus Board of Education. It's coming in some sense from that room and the narrative that comes from if Brown was [00:26:40] meant to create equality by ensuring absolute equality, access to public education, it failed miserably. If the metric is that it got rid of separate but equal as articulated in Plessy and opened the door for interrogation of of how you dismantle that in other areas is an absolute success. But in terms of its primary [00:27:00] directive, desegregation of schools with all deliberate speed, it would be difficult for anyone to argue at this point that Brown v. Board was a success.

Hannah McCarthy: [00:27:08] It sounds like Yohuru is saying that while this case was a tremendous victory, schools are just one part of an unequal system. Discrimination in housing, employment, the [00:27:20] criminal justice system. These issues are all intertwined.

Nick Capodice: [00:27:24] That's right. And changing laws does not necessarily change minds. Brown is an amazing victory and an amazing story. You've even got Thurgood Marshall becoming the first Black justice on the Supreme Court 13 years later.

[00:27:37] Historians will note this hour at the White House in [00:27:40] a Rose Garden ceremony, a 58 year old great grandson of a slave is nominated by President Johnson to be a Supreme Court justice. He is Solicitor General Thurgood Marshall

Nick Capodice: [00:27:52] But the half century since that decision has been a series of gains and losses. Many other movements, including the [00:28:00] fight for rights of other minority groups, have been helped by the Brown decision. But many of the issues at the heart of Brown, the promise of equality for all people and how to achieve it remain. That's it for this Supreme [00:28:20] Court episode on Civics 101, follow us on whatever podcast app you prefer to keep up with how these justices interpret our lives.

[00:28:28] This episode was produced by me Nick Capodice with You, Hannah McCarthy thank you.

Hannah McCarthy: [00:28:31] Thank you. Thank you.Our staff includes Christina Phillips, Mitch Scacchi, and Jacqui Fulton. Erika Janik is our executive producer and rides in lightning while her dogs hide from it.

Nick Capodice: [00:28:32] Music in this episode by Blue Dot Sessions, Sarah the Illstrumentalist,, Scott Holmes, Jesse Gallagher, and that lady whose beats are never vague, Emily Sprague.

Hannah McCarthy: [00:28:32] Our show is and always will be free to listen to, so show your support of it with a donation at our website, civics101podcast.org.

Nick Capodice: [00:28:57] Civics [00:28:40] 101 is made possible by our listeners [00:29:00] and is supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Japanese American Internment

Japanese American internment, or incarceration, spanned four years. Over 120,000 Japanese Americans and nationals, half of them children, were made to leave their homes, schools, businesses and farms behind to live behind barbed wire and under armed guard. There was no due process of law, no reasonable suspicion keeping these individuals locked away. What does this injustice mean to our nation? To the inheritors of that trauma? Our guides to this troubling period of American history are Judge Wallace Tashima, Professor Lorraine Bannai and Karen Korematsu.

Episode Resources

Click here to download a graphic organizer to take notes upon while listening to the episode.

Listen to Densho’s new podcast, Campu, which tells the stories of Japanese internment through mundane objects and places.

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Audio automatically transcribed by Sonix

This transcript may contain errors.

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

Hannah McCarthy:
In the days after the United States entered World War Two, it became clear that the public needed to know more, more about why we were at war, who we were at war with, who our allies were, who our enemies were. So in the summer of 1942, President Franklin Delano Roosevelt created the United States Office of War Information. It would create posters, magazine articles and films to show the American public what we were up to overseas.

Archival:
Believe me, today we've been through some of the real stuff. The fellows are asleep now. They're half dead with exhaustion. They're filthy with sweat and dirt. But take my word for it, Mom. They're grand soldiers. Every one of

Hannah McCarthy:
Them encouraged patriotism.

Archival:
Just what does Mrs. Exception mean when she tells you she had to give up a Red Cross work because it didn't leave her time enough to get her hair done each week

Hannah McCarthy:
And explain why we were removing over 120000 people from their homes and sending them to camps in desolate regions of rural America.

Archival:
All persons of Japanese descent were required to register. They gathered in their own churches and schools, and the Japanese themselves cheerfully handled the enormous paperwork involved in the migration.

Hannah McCarthy:
This is Civics 101, I'm Hannah McCarthy,

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And today we are talking about the four year period during which American citizens were ordered to leave their homes, friends, schools and businesses behind to live under armed guard. We're talking about Japanese American confinement during World War two. And if you haven't heard it, this is something of a companion episode to Korematsu versus the United States, the case that unsuccessfully challenged what we'll be talking about today.

Judge Wallace Tashima:
Born in 1934, of course, you know, study a little bit of history. Just I think there's been a remarkable change in our country. You know, it's still ongoing. It's not complete, but there's been a change. I think my life is kind of an illustration of it.

Hannah McCarthy:
This is Judge Wallace Tashima. If you've heard our episode on the Supreme Court case, Korematsu versus the United States, then you already know his voice. Judge Tashima is a senior United States circuit judge of the U.S. Court of Appeals for the 9th Circuit and currently lives in Los Angeles, California.

Judge Wallace Tashima:
I was born in Santa Maria, California. My father was an immigrant from Japan. My mother was also an immigrant from Japan. And my father was a graduate of the University of Utah. I was born in Santa Maria where he was the I guess the executive manager of the Farmers Co-op time, which is a big farming area.

Hannah McCarthy:
Judge Tashima's father passed away when he was about four and his mother moved the family to L.A. That is where they were on December 7th, 1941, when the Empire of Japan launched a surprise attack on the naval base at Pearl Harbor in Honolulu, Hawaii. Nearly 1400 people were killed, including some civilians. Now, up until this point, the United States had been officially neutral in the World War. That had been raging for nearly three years. And that was over now.

Archival:
I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war. Has existed between the United States and the Japanese empire.

Nick Capodice:
So Judge Tashima was pretty young when this happened.

Hannah McCarthy:
He was and he makes clear that his memories are that of a young boy. He doesn't remember everything. He didn't grasp everything that was going on at the time, but he still has many memories. It's just him, his sisters and his mom, a family of Japanese descent living in California in the wake of an attack by the Japanese empire

Judge Wallace Tashima:
In May of 1942. We were we were sent to this what they call the war relocation center, which was, you know, like an internment camp. It wasn't a German camp. The one we were sent to was called the Post and it was on the Arizona side of the Colorado River. And to show how many people were there, I think there are about fifteen thousand Japanese Americans in right away. It became the third largest, if you could call it a city, city in Arizona, because Arizona was you know not heavily populated.

Hannah McCarthy:
Poston was the largest of 10 internment camps scattered across the country where nearly one hundred and twenty thousand people of Japanese descent eventually landed following President Roosevelt's executive order 9066.

Nick Capodice:
Did that order specifically call for the removal and relocation of Japanese Americans?

Hannah McCarthy:
Actually, the order authorized the military to remove and relocate anybody from designated, quote, military areas. But the military targeted people of Japanese descent.

Lorraine Bannai:
Any understanding of the Japanese American population during World War Two has to start with an understanding of the history of anti-American sentiment in this country going all the way back to the immigration of Chinese, mainly Chinese, during the late eighteen hundreds.

Hannah McCarthy:
This is Professor Lorraine Bannai. She's the director of the Fred Korematsu Center for Law and Equality and a professor of lawyering skills at Seattle University School of Law.

Lorraine Bannai:
There were just a host of anti-Asian laws. Japanese Americans. Chinese Americans were prohibited from intermarrying with whites. Asian-Americans were prohibited from owning land. Asian-American children are placed in segregated school. We see many of the same types of racist laws directed against other immigrant communities and people of color in this country directed against Asian-Americans. So the bombing of Pearl Harbor took place against this atmosphere of racism and hate,

Archival:
As iron ore is melted in furnaces to remove impurities, so in Japan, humanitarian impurities are burned out of the child as the steel is shaped by beating and hammering. So is the boy hammered and beaten into the shape of the fanatic samurai.

Lorraine Bannai:
You know, in the days that followed, community leaders were picked up and there was a call from the popular press, the public newspapers, to get rid of Japanese Americans from the West Coast believing that they were a threat to the country.

Nick Capodice:
So this demand to remove and relocate anyone of Japanese descent, it's not simply a result of the attack on Pearl Harbor. It came after years and years of bigotry and mistrust and legislation passed against Asian immigrants and Asian-Americans.

Hannah McCarthy:
And it isn't just the press who calls for the removal of anyone who looks Japanese. It's economic and nativist lobbying groups who have long viewed Japanese people as a threat. It's also people from all levels of government. So President Roosevelt finally signed Executive Order 9066 on February 19th, 1942.

Karen Korematsu:
You can imagine or try to imagine that all of a sudden you are looked like as the enemy because you're you're of Japanese ancestry. Even though you're born in this country, you're look like the enemy.

Hannah McCarthy:
This is Karen Korematsu, daughter of Fred Korematsu, the man who challenged executive order 9066 by staying put. She now runs the Fred Korematsu Institute.

Karen Korematsu:
Not only were people's possessions and their livelihoods and their and their homes stripped from them, their dignity was stripped from them. And we all want to have our dignity, to be proud of ourselves. And when when people look at you like it's your fault of the bombing of Pearl Harbor, that it's your fault for for this war and You, you're powerless. And it's very, very scary because that weight is on your shoulders.

Nick Capodice:
Real quick, what were the military areas that people of Japanese descent were required to leave?

Hannah McCarthy:
All you need to know is that this includes all of California and Alaska and parts of Washington, Oregon and Arizona.

Nick Capodice:
So the entire west coast of the United States.

Hannah McCarthy:
The whole thing off limits to Japanese Americans and nationals. And that's regardless of age, health, occupation or even reasonable suspicion.

Lorraine Bannai:
There were no charges against them. They have no trials and there was no allegation that any had engaged specifically individually had engaged in acts of espionage or sabotage. Every person of Japanese ancestry was moved. There's some really famous footage of soldiers kind of between them carrying an elderly man, holding up an elderly woman between them who can barely walk. But people were moved regardless of age. My my grandmother was a blind mother of five children who had moved. Her son was a teenager at the time. The people were elderly and were ill and orphans and everyone was moved without exception.

Nick Capodice:
So I had a guest recently wrote in to ask us which branch of government and agency was in charge of this effort. Was it the executive branch? Did President Roosevelt have a major say in what went on?

Hannah McCarthy:
The thing about executive order 9066 is that it's simply a military authorization. So while Roosevelt focused on the war, the Army and specifically General John DeWitt, who was in charge of the Western Defense Command of the Army, targeted and removed people of Japanese descent from these, quote, military zones.

Archival:
No one knew what would happen among this concentrated population if Japanese forces should try to invade our shores. Military authorities therefore determined that all of them, citizens and aliens alike, would have to move.

Hannah McCarthy:
All of this fell under various arms of the executive branch. So step one is the army. After that, temporary wartime agencies took over. Step two is the removal of Japanese Americans and immigrants to temporary relocation centers. And step three is the transfer of these individuals to formal internment camps for the duration of the war. Places like Poston War Relocation Center, where Judge Tashima and his family ended up.

Judge Wallace Tashima:
I spent three years and three months there May 42 to August of 1945. So I completed the third, fourth and fifth grade in that internment camp.

Nick Capodice:
That's just so difficult for me to imagine, because when you're that young, just a year of school is a long time. But three years of school is a huge chunk of your entire life. And what were the living conditions like?

Judge Wallace Tashima:
We live in barracks. All internees were housed in these barracks. I would say my best estimate now, probably about the size of a two car garage, a room about that size. And we had five in our family. My mother was a widow and I had three sisters and myself -- four -- she had four kids. And so five of us living in the one room. So there was no privacy, so to speak.

Hannah McCarthy:
No privacy in a room the size of a garage is tough, to say the least, but the Tashimas and everyone else may do.

Judge Wallace Tashima:
So you put a rope and blankets and stuff like that. There was no plumbing, but there was electricity. Each block had a tank of fuel oil. So we had to go get our own fuel oil to fuel up our heater in the unit. They had like central restrooms, called latrines then. A women's latrine and a men's latrine. And also a central laundry room where they can go and do their laundry. And of course, there's no furniture. No one had any furniture. I think it was a bed and mattress.

Hannah McCarthy:
Judge Tashima went to school, made friends, played on the weekends. This is nearly four years of life for most of the people in these camps. So you had to find a way to go on.

Judge Wallace Tashima:
You know, there were no recreation facilities there, no playgrounds, nothing but people, you know, built basketball courts, baseball fields, stuff like that. There was a huge irrigation canal that ran right through the camp. So they make a big like a like a swimming pool. We swam in there and I learned to swim at quite a young age because there was about nothing else to do in the summertime.

Nick Capodice:
Speaking of getting on with your life, how did these individuals and families make their spaces comfortable where they allowed to bring stuff from their homes,?

Hannah McCarthy:
Only what you could carry. So Judge Tashima says people got pretty much everything else from the Sears Roebuck catalog.

Judge Wallace Tashima:
There are no stores, no grocery stores, drug stores, department stores, nothing. Everybody used to order their clothes from Sears Roebuck, I remember. Everybody had a Sears Roebuck catalog.

Nick Capodice:
But where did the money come from to do that, Hannah? Everyone was forced to leave their jobs. So how could they pay for anything from Sears Roebuck?

Hannah McCarthy:
Well, OK. For one, the government covered food and the meager housing and people did have access to their funds, with the exception of a few who had their bank accounts frozen. And there were jobs at the camps.

Judge Wallace Tashima:
A number of the internees were professional people, doctors and nurses, dentists, stuff like that. Those people got highly paid at something like twenty six dollars a month. And if you were if you were cooking in the mess hall you could make maybe 15 dollars a month. It was that kind of wage structure. There were a bunch of Caucasian workers there, some worked in the hospital. My third grade teacher there was a Caucasian woman and they lived in a separate, almost like separate little town.

Hannah McCarthy:
Judge Tashima told me, by the way, that these white workers were also paid significantly more than internees.

Nick Capodice:
That strikes me as just another small example of how the government was explicitly treating these internees as something closer to prisoners than to untried, unconvicted, innocent, loyal citizens. Which brings me to one point. I know we covered in a Korematsu v. US episode, but it's about the terminology here. We've been saying internment and internee because that's what the government called and calls it. And it's more likely what you'll read in a history textbook. But Karen and Lorraine call this incarceration.

Hannah McCarthy:
And that is the term advocated for by organizations who are trying to keep this history alive. And it's not the only government use term that's challenged.

Karen Korematsu:
People don't understand that. You know, the Japanese American incarceration rate, we were trying to bring attention to the euphemisms that were were used at that time to kind of soft pedal the governments, you know, outright really racist act against Japanese Americans. And so, you know, the like you used to refer to the term of evacuation, which I can tell you that even five year olds and six year olds understand evacuation. Yes. Whether you're living in California and you have earthquakes or you're in the middle of the country and you have tornadoes or you're in in Louisiana and in hurricanes. Right. It's it's to be removed for your own safety. Well, the Japanese Americans weren't removed for their own safety. They were forced from their homes. They lost their possessions just because all of them look like the enemy, quote, unquote.

Nick Capodice:
And what happened to the homes of these 120000 people? Did the government seize their property?

Hannah McCarthy:
No, but they might as well have. I mean, when the evacuation order came down, people had between a week and 10 days to either find someone to take and protect their property or to sell it off. You could either sell your home, find a renter, or just hope it wasn't damaged somehow. And renters regularly stole and destroyed property vandalism of Japanese property. It was very common. Across the West Coast, the property damages are estimated to be between one and three billion dollars, and that's not adjusted for inflation.

Judge Wallace Tashima:
A lot of people lost a lot of property and a lot of their savings. You know, my mother being a widow, we didn't have a lot of money. But, for instance, my my father in law, my wife's father was a very successful businessman in Ventura County. He ran several grocery stores, but they took him away. So he lost, I think, literally by today's delegation just millions of dollars.

Nick Capodice:
I know Judge Tashima was quite young at the time, but did Judge Tashima recognize at the time how unjust this was?

Hannah McCarthy:
He told me about movie nights when mothers of soldiers who had died overseas would be called to the front of the crowd and presented with a Medal of Valor, young men who died fighting for the country that incarcerated them.

Judge Wallace Tashima:
It struck me even as a fourth grader. That it was something was not right about that.

Nick Capodice:
Hang on, the Army drafted people from these camps, the same army that rounded them up and forced them to relocate.

Judge Wallace Tashima:
The boys turned 18. They were drafted into the army like all other young white Americans in World War Two. And they would go off to basic training. At that time they all got a 30 day home leave before they were shipped overseas. These boys were then, they finished their basic training and they come back to the camp to spend their last annual pre deployment leave in an internment camp before going off to fight. It just didn't seem right. You know, the only thing a 18, 19 year old can do if you get 30 days leave, where are you going to go? Are you going to go home? Right. And their home was in the internment camp.

Hannah McCarthy:
I also want to point out that not every internee was drafted. Many voluntarily joined the military during World War Two. Judge Tashima also told me that he would occasionally see wounded veterans, people on crutches or in wheelchairs, who, after surviving the war but not without injury, were sent back to Camp re-incarcerated. I feel like we really cannot overstate how frightening and confusing this period of time was for the people incarcerated in these camps. But we also need to emphasize how frustrating and unjust it must have felt. Fred Korematsu was one of many who understood that his rights as an American citizen were being violated, that his humanity was being stripped away.

Judge Wallace Tashima:
There were a number of people, young men, who refused to get drafted until their families were released from camp. And of course, government wouldn't accept a condition like that. So a number of people were tried in federal court throughout the West for violating the draft act. And the sentences range anywhere from some got probation, some as much as five years in prison.

Nick Capodice:
So the incarceration lasted until the end of the war. What was life like when it was all over?

Judge Wallace Tashima:
Well, when we first came back, we went to what they called it a hostel, it was run by a church. Almost like a like a bunch of motel, I guess, or even more budget than that. And we lived there for, I would say, almost a year, six months between six months in the year. And my mother owned the house. I could get the house to back and move back. So I know I spent my sixth grade in the hostel in Venice, California.

Hannah McCarthy:
There was no easy return to normal life after this period, with the exception perhaps of rampant racism being the norm, even for a remarkably successful person like Judge Tashima. He graduated Harvard Law School in 1961. He had decent grades and he was interviewed by some major firms. He says people were nice enough, but they just didn't seem anxious to hire him.

Judge Wallace Tashima:
One hiring partner whom I got to know better years later, from a big law firm in Los Angeles. And he said to me, you know, Wally, I'd like to hire you, but I just can't do it because our clients wouldn't stand for it. When he said that, it always occurred to me, well, that's why, you know, these people that I've interviewed with never even sent me a note saying thanks for interviewing.

Hannah McCarthy:
And it wasn't just exclusion from the job market. It was the housing market, too.

Judge Wallace Tashima:
My wife and I were looking for an apartment and certain landlord said, I'm sorry, we can't we can't rent to you. So it was quite open.

Hannah McCarthy:
So much of this is incredibly galling, both morally and constitutionally, but one detail that I find just incredibly sad is the shame that former internees felt four years following this period. It's like Karen said earlier, that weight of being blamed for the attack on Pearl Harbor, the psychological toll of your own government, presuming You guilty without the option of proving your innocence. Karen didn't even learn her father had been a part of a major Supreme Court case challenging Japanese American removal and relocation until she was in grade school. She heard it during a friend's oral report. And she wasn't the only one. Here's Lorraine again.

Lorraine Bannai:
My parents, my grandparents, my aunts and uncles were incarcerated during World War Two. And like many people who had been incarcerated, they never talked about it. And when we were growing up and so I knew I learned about my family's incarceration during ethnic studies, during Asian-American studies, which was really quite shocking and remarkable and horrible.

Nick Capodice:
Did the government ever do anything, admit that these actions were wrong or try to make up for it in some way?

Hannah McCarthy:
The government compensated for some, though not all, of the property and monetary losses to incarcerated people following the end of World War Two. But it wasn't until nineteen eighty eight through the combined efforts of a formerly interned California congressman and the Japanese American Citizens League that the Civil Liberties Act was passed and surviving internees were granted twenty thousand dollars apiece. The language of the act makes clear that the government actions were based on, quote, race prejudice, war hysteria and a failure of political leadership, unquote, rather than national security concerns. But while we're on the subject of what the country did to address the race based force confinement of 120000 thousand Japanese American citizens and nationals. I feel like I can reasonably say not much.

Lorraine Bannai:
This isn't taught, it's not required, it's not taught, I'm on the West Coast, it happened here in Seattle and people don't know about it and there's no requirement that teachers teach it. And so teachers have to find their own way.

Hannah McCarthy:
Karen Korematsu, Judge Wallace Tashima and Lorraine Bannai all emphasize the need for education when it comes to what to do with our legacy of incarceration camps. And plenty of people can agree that education about our past is important if we don't want to repeat that past. But Lorraine made me think about it in a pretty specific way. So I want to end on this idea. What do we do with this horrible, uncomfortable, racist moment? We learn what was lost, what was not defended in that moment, because the moment that rights are denied to one person, they can be denied to anybody

Lorraine Bannai:
In a specific way is is really the and then they came for us kind of a thing. Right. That that that what we're talking about as far as racism and sexism and ableism and all of that in this country is that it all rises from the same roots. And that's the root of intolerance and ignorance. Right. And so. So. My sense is that it's so important that all of us be allies for each other, not just because it's the right thing to do, but because it could be us next. And if we don't try to uphold dignity and humanity and the law for four other people, we're we're not holding it up for yourself.

Hannah McCarthy:
One last thing I want to say is that this episode is being released at a time when anti-Asian sentiment and hate crimes are being covered widely in the press. This bigotry is known to be "up" right now, but was also probably underreported and insufficiently covered in the past. But to those who are surprised to learn about anti Asian hate in the U.S. or who think this is a sudden thing tied to hateful rhetoric connecting China to the covid-19 pandemic, I feel like this episode demonstrates that we don't have to look back very far to see broad, life altering anti Asian laws and actions and realize that precedent has long been set for anti Asian hate. But of course, that's all we can do, set precedent and the way that we use the past to inform that precedent, whether we choose to learn from our troubling history is kind of up to us.

This episode of Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Jackie Fulton and Mitch Scacchi. Erica Jannik is our executive producer. Music in this episode by Chris Zabriskie, Bio Unit and Zylo Ziko. You can find more resources on Japanese incarceration, the Supreme Court case, Korematsu vs. the United States and of course, everything else we've ever made at Civics101podcast.org. Our pursuit of what is going on and has gone on in this country is never ending. So there will be so much more where this came from. You can make sure you never miss an episode of Civics 101 by following us on Apple podcasts, Spotify or wherever you get your podcasts. 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.

Civil Rights: Korematsu v United States

Is it Constitutional for the government to remove and relocate American citizens to remote camps without due process of law? In 1944, SCOTUS said yes.

In 1942, approximately 120,000 Japanese immigrants and Japanese Americans were ordered to leave their homes. They were sent to internment camps in desolate regions of the American West. Fred Korematsu refused to comply. This is the story of his appeal to the Supreme Court and what happens when the judicial branch defers to the military. Our guides for this story are Karen Korematsu, Lorraine Bannai and Judge Wallace Tashima.

Please note: An earlier version of this episode indicated that internment of people of Japanese heritage began a year after Pearl Harbor when in fact the earliest wave of removal and relocation took place just a few months after the attack. This prior version also incorrectly identified Korematsu v U.S. as being the case that upheld Japanese internment. Though many agree this to be the de facto result of the case, Korematsu v U.S. in explicit terms upheld the Constitutionality of the removal and relocation of people of Japanese heritage.

Episode Resources

Click here to download a graphic organizer to take notes upon while listening to the episode.

Visit Densho for a wealth of information, including archival materials, chronicling internment during World War II.

Street Law has created wonderful free case summaries for Korematsu, click here for High School and click here for Middle School

Transcript

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

Hannah McCarthy: [00:00:05] Let's try a thought experiment. I'd like you to imagine that you're an American citizen. You're an American citizen and always have been. You were born here in California, to be exact. You went to school here, played with the kids on your block, got a B in algebra, hated taking out the trash, had a crush on the kid who taught you how to surf, worked an after school job at the supermarket in town. Life is good. Mostly not perfect, but this is home. And then one Sunday afternoon, you're lying around your living room with some friends and you hear something on the news. The United States has been attacked. This attack means that the country is joining a war, which is reason enough [00:01:00] for You an American citizen to be concerned. But there's another thing. The nation that staged this attack, your parents immigrated from there, and that's why your home is about to turn on. Bars and clubs print hunting licenses, declaring open season on anyone of your heritage. Magazines print articles explaining what physical features distinguish you from other Americans. Businesses hang signs telling you and your family to go back to where you came from. And then the government, your government, issues a curfew. Anyone descended from the country that attacked the United States has to stay indoors between 8:00 p.m. and 6:00 a.m.. And finally, an order comes down, the president will allow the military to remove and relocate whoever [00:02:00] it wants. The military picks You mere months after a foreign nation attacked American soil. You, an American citizen who has never been to that foreign nation are forced out of your home and incarcerated in a camp without due process of law. Because you look like the enemy. Now, here's the question. Does that seem constitutional to you? This is Civics 101, I'm Hannah McCarthy.

Nick Capodice: [00:02:37] I'm Nick Capodice.

Hannah McCarthy: [00:02:38] And today we're exploring a case that upheld the removal and relocation of 120000 people of Japanese heritage, the majority of them American citizens, to isolated camps for nearly four years during World War Two. We're talking about the 1944 case, Korematsu versus the United States.

Karen Korematsu: [00:02:58] My father learned about the Constitution [00:03:00] in high school. He was born in Oakland, California, attended Castlemont High School, was just like any other American kid and hung out with his friends. But he was paying attention to the Constitution that day in class and he thought he had rights as an American citizen. And the Executive Order 9066 was issued.

Hannah McCarthy: [00:03:25] This is Karen Korematsu, daughter of the late Fred Korematsu, the plaintiff in Korematsu v. United States. She founded and serves as director of the Fred Korematsu Institute for Civil Rights and Education.

Nick Capodice: [00:03:38] And what is Executive Order 9066?

Karen Korematsu: [00:03:40] The executive order gave the military the authority to forcibly remove anyone of Japanese ancestry from the West Coast.

Hannah McCarthy: [00:03:49] This order was issued at the height of anti Japanese sentiment in the United States following the attack on Pearl Harbor in Honolulu, Hawaii, on December 7th, 1941 by [00:04:00] the Imperial Japanese Navy, Air Service

Nick Capodice: [00:04:03] And everything you described at the beginning of this episode, the signs on businesses, the magazine articles, the hunting licenses, the curfew did all of that happened to Japanese immigrants and Japanese Americans in the U.S.?

Hannah McCarthy: [00:04:16] It really did. It also needs to be said that anti Asian sentiment was already rampant in the United States. The Japanese military attacked Pearl Harbor, the U.S. entered World War to Japan, officially became an enemy nation. And the reasoning was, well, you can't separate the sheep from the wolves in sheep's clothing. There may be spies and saboteurs among Japanese immigrants and Japanese Americans. So lock them all up. Racism is necessarily not separate from that. That is something to keep in mind when we get to Fred Korematsu case. And speaking of the case, Karen Korematsu, Fred's daughter, is an expert on it now, but she didn't even learn about it until she was 16 [00:05:00] when a school friend of hers mentioned Korematsu versus the United States in a book report.

Nick Capodice: [00:05:06] And are you telling me that Karen Korematsu didn't know her father was part of this monumental Supreme Court case until she went to high school? How is that possible?

Karen Korematsu: [00:05:17] I always ask the question, well, why didn't anybody talk about this? Well, it wasn't it wasn't acceptable at that time to even speak up. At least now what we're trying to do is now we need to speak up, as my father said. But at that time, it wasn't acceptable in our culture, in the Japanese, in Asian culture, you're you're you're quiet. You're not you don't make trouble. You you go along, you do what you're told, especially if it's from the government. You don't make waves. And they all wanted to prove that they were good American citizens and to follow along with the government's orders. You can't fault [00:06:00] anyone for that,

Nick Capodice: [00:06:01] And the government's orders were what exactly?

Lorraine Bannai: [00:06:04] So President Roosevelt issued executive order nine six six allowing or basically delegating to the secretary of war the ability to broad powers and the ability to remove or alter the movements of anyone, the secretary of war or his designate, SOF, that there was nothing on the face of the order that was directed at Japanese Americans. But everybody knew. And you could tell from the entire history behind it that it was really directed at controlling the Japanese American population.

Hannah McCarthy: [00:06:39] This is Lorraine Bannai, director of the Fred Korematsu Center for Law and Equality and Professor of Lawyering Skills at Seattle University School of Law.

Lorraine Bannai: [00:06:48] Pursuant to Executive Order 9066, Gen. John L. DeWitt, who was the commander of the Western defense, issued a series of orders against the Japanese American [00:07:00] community. He first issued a curfew order that required Japanese Americans to stay near their home and to stay in their homes during certain hours. And that was followed by a series of one hundred and eight civilian exclusion orders requiring Japanese Americans in zone after zone after zone on the West Coast to report for removal from the West Coast. And this included the entire population, including babes in arms and the very elderly. Two thirds of the people who were removed up to one hundred ten thousand one hundred twenty thousand people were like my parents and like Fred, American citizens by birth. So Japanese Americans were first being moved to temporary confinement centers and then ultimately to 10 camps in desolate regions across the United States.

Hannah McCarthy: [00:07:54] These were called internment camps, internment, meaning to imprison somebody, especially [00:08:00] during wartime, and Japanese immigrant and Japanese American internment. That is an entire civics one on one episode unto itself. But I do want to make clear before we get to Fred Korematsu case, both Karen and Lorraine refer to the government's actions as incarceration. These remote camps were surrounded by barbed wire. They were presided over by armed guards who had orders to shoot anybody who tried to leave.

Nick Capodice: [00:08:28] But did people do when these orders came down? I mean, I'm thinking about this moment you described at the beginning of the episode. You're you're going on with your life and suddenly your own government starts treating you like the enemy. How do people respond?

Lorraine Bannai: [00:08:42] Deputized Americans reacted to this in a myriad of different ways. There's a kind of a story up there that's kind of like Japanese Americans cooperated and went. And and it's really important, I think, that we kind of like diffuse that. Many Japanese Americans complied. They [00:09:00] complied for any number of reasons to show their loyalty, to show they were loyal citizens, because they were frightened, because they were scared, because they didn't know what's going to happen, because they didn't want to be separated from their parents or their children or whatever. So the bulk of Japanese Americans complied. A few did not. And that's kind of what the story is about, is that a few men did not comply.

Hannah McCarthy: [00:09:29] Speaking of noncompliance, let's get back to Fred Korematsu.

Lorraine Bannai: [00:09:36] Fred Korematsu was a twenty two year old welder living in Oakland, California, when he decided to refuse to report for removal. He chose instead to remain in Oakland with his Italian American fiancee, basically to remain with the woman he loved in the place that had always been his home and decided to stay behind when his [00:10:00] family was taken away.

Hannah McCarthy: [00:10:01] I should also say Fred Korematsu also just knew this wasn't right.

Karen Korematsu: [00:10:06] He just thought that the government was wrong to put people in prison just because they look like the enemy. He was born in this country who is an American citizen. He had never been to Japan. He was the last of his family. It wasn't even until two thousand and one in the spring was the first time he he even went to Japan. My my husband I took took my parents.

Hannah McCarthy: [00:10:30] There was another significant court case, by the way, that had already upheld the constitutionality of the curfew order, the one requiring Japanese Americans to stay indoors during certain hours. That one called Hirabayashi the United States, which is important to mention because of the argument the government used against Gordon Hirabayashi, because there was no evidence of espionage or sabotage. They went with this. Japanese Americans are prone to disloyalty [00:11:00] because of a natural solidarity with their motherland.

Lorraine Bannai: [00:11:04] We have this litany of, quote, characteristics. The Japanese had to say that given those characteristics, the military could, in its judgment, reasonably believe that the Japanese people posed a threat to the country and that the court had to accept that determination. So Hirabayashi upheld the curfew.

Hannah McCarthy: [00:11:28] The Supreme Court agreed with the government. Chief Justice Harlan Stone wrote that racial discrimination was acceptable because, quote, In time of war, residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry, end quote. Again, this is the case that upheld the curfew order.

Lorraine Bannai: [00:11:51] A year and a half later, the Korematsu case comes up before the Supreme Court. And this order was different. The Korematsu [00:12:00] case was about the removal of Japanese Americans from their homes, very, very much more intrusive order than one that simply is a curfew that you can't leave your home at night. But the court said that for all the reasons we upheld the curfew order in Hirabayashi, we uphold the removal orders and Korematsu.

Hannah McCarthy: [00:12:23] So the Supreme Court first rules that people of Japanese descent have the racial characteristic of loyalty to Japan that makes them prone to pose a threat to the United States. Then the court rules that the military removal order in the case of Fred Korematsu is constitutional.

Lorraine Bannai: [00:12:41] And in saying that the court upheld the military order and for Mozza, based on the conclusion that this was a military necessity, a military urgency, and it wasn't about race. In other words, this was a military decision. It wasn't a race based decision. [00:13:00] And the court actually said Korematsu was not excluded from the military area because of any hostility to him or his race. He was excluded because of the military urgency of the situation.

Nick Capodice: [00:13:14] But the Fred Korematsu case is following this decision that is based on race. And it certainly seems like the incarceration of Japanese immigrants and Japanese Americans must be based on race, because how else do you decide to isolate people of certain descent, but based upon their descent?

Lorraine Bannai: [00:13:31] What's really important here is that every indication was that the removal orders were about race. They were targeted only at Japanese Americans. And yet the court said this wasn't about race. There was about military necessity. And I can go in to how the big concern we have in so many laws that impact minority [00:14:00] communities. It's that story. It's like this isn't about race. It's about national security. This isn't about race. It's about public health. The government argued this was a military necessity. The military made a judgment that it was necessary to protect our country. And so it's constitutional that basically the court needs to uphold it because it's within the executive's constitutional power.

Nick Capodice: [00:14:33] So what happened to Fred Korematsu?

Hannah McCarthy: [00:14:36] Well, he had already been convicted by a lower court, this Supreme Court case upheld that conviction. He received five years probation and a federal record. And when we do talk about what happened to Fred Korematsu, I also want people to remember that though this seems like something that happened a long time ago in a different kind of America, Fred [00:15:00] and his legal team did not expect to lose this appeal. And the court was not unanimous in upholding Japanese immigrant and Japanese American removal and relocation.

Karen Korematsu: [00:15:11] My father thought for sure that by the time that his case reached the Supreme Court, the Supreme Court would say it was unconstitutional. That's how much he believed in in in our democratic process, you know, and and that in the Supreme Court and the Constitution, because all due process of law was denied. So they didn't have access to an attorney, to a hearing. And they there was no charges against them because quote of the executive order. Right. So that's the process. And so by the time that my father's case, because of appeals was heard by the Supreme Court on December 18th, 1944, [00:16:00] it was not a unanimous decision by the Supreme Court. And that's also important. And I encourage students and teachers to to look at the dissenting opinions because the dissenting opinions are still relevant today. The dissenting opinions of of Justice Robert Jackson, who said that might refer to my father's Supreme Court case as this is around like a loaded weapon ready for anyone to pick up and use with a plausible cause. I'm paraphrasing here, Justice Murphy. And forty four call it the ugly abyss of racism. That's very telling. And and Justice Owen Roberts called it unconstitutional

Hannah McCarthy: [00:16:47] After Fred's conviction was upheld. He was sent to the Central Utah War Relocation Center in Topaz, Utah.

Lorraine Bannai: [00:16:54] One thing is that he was ostracized by his own community for taking the stand. And [00:17:00] secondly, he was criticized for basically doing this for selfish reasons. He wanted to stay with his girlfriend. It wasn't like he was doing this as an act of civil disobedience, right out of principle for the for the Constitution and make a statement about the Constitution.

Karen Korematsu: [00:17:22] He had a federal prison record for almost 40 years. He could even work for the government. There's a lot of things he couldn't do, but most importantly. He did this for for all American citizens because he didn't want something like the Japanese American incarceration to happen again. That's why after his conviction was was overturned in 1983, he found his voice with encouragement from his legal team to crisscross this country and speak to everyone about his own story and about the treatment [00:18:00] of Japanese Americans and the aftermath.

Nick Capodice: [00:18:03] Ok, so Korematsu v. U.S. was overturned in 1983.

Hannah McCarthy: [00:18:07] No, Fred Korematsu conviction was overturned in 1983. The Supreme Court case, however, was not overruled. Still, it's a story worth telling because it reveals exactly how undeniably unjustified the government's actions were in this case. One last thing I haven't yet mentioned about Professor Lorraine Bannai. She was on Fred Korematsu legal team when his conviction was overturned in 1983.

Lorraine Bannai: [00:18:35] During World War Two, the government suppressed, altered and destroyed material evidence while it was arguing its case before the U.S. Supreme Court. General DeWitt, who was the commander of the Western defense who carried out the program of curfew and removal, had written a final report that basically summed up his reasons for [00:19:00] the incarceration of what he based his decisions on. And it was discovered that the government had given a copy of this report to the Supreme Court, but it was an altered version. So. General DeWitt had written his final report, and in that report, he said that there was no way to tell loyal Japanese Americans until Japanese Americans, no matter how much time you had truly revealing the racist reasoning behind the incarceration, the Japanese were as a group disloyal and you couldn't figure out a loyal one, disloyal one, no matter how much time you have. At the same time, the government was arguing to the Supreme Court that the reason for the incarceration was because there was insufficient time to tell the loyal from the disloyal, which was totally contradicted by DeWitt's reasoning.

Nick Capodice: [00:19:57] So DeWitt was saying there is no amount of time [00:20:00] or energy that could determine who's loyal and who is not. At the same time, the government is telling the court, we had to do this because we didn't have enough time.

Hannah McCarthy: [00:20:09] Right. DeWitt's report exposed the fact that he made a blatantly racist choice when it came to the execution of executive order 9066. All Japanese immigrants and Japanese Americans are suspect, period. The government changed that report when they argued before the court and ordered all copies of DeWitt's original report destroyed. So the copies were collected and burned.

Lorraine Bannai: [00:20:34] What survived, however, was a soldier's memo that said Today I destroyed all these copies of this report along with one co- one surviving copy of the original report

Nick Capodice: [00:20:45] Really says some soldier was crossing the T's and dotting his eyes and left behind proof of this evidence destruction. So I'm guessing after this, Lorrain in the rest of the legal team pretty much had this case in the bag.

Hannah McCarthy: [00:21:00] They [00:21:00] did. And Fred Korematsu conviction was, as you know, overturned. But of course, the facts of the case remain and the facts are pretty depressing.

Lorraine Bannai: [00:21:15] It was really pretty amazing and sad. I mean, I think when. When my parents when many Japanese Americans who had been incarcerated learned of this evidence, it was great because we could reopen the cases. But it was heartbreaking to know not only that their incarceration had been wrong, but that there had been this massive coverup to lie to the Supreme Court to justify their incarceration.

Nick Capodice: [00:21:45] All right. We'll give it to me straight. At what point was Korematsu v. United States finally actually overturned?

Hannah McCarthy: [00:21:52] So this one's a little trickier. I want to introduce you to one more guest. This is Judge Wallace Tashima of the [00:22:00] U.S. Court of Appeals for the Ninth Circuit. He is the third Asian-American and first Japanese American to be appointed to the U.S. Court of Appeals. He has had a long and illustrious career in law. He is also a former internee of the Post and War Relocation Center in southwestern Arizona, a story that we'll hear in our episode on internment. But as we were speaking about his experiences, I asked him to weigh in on Korematsu and whether or not it actually has been overruled. Because the truth is, it is not clear to me.

Judge Wallace Tashima: [00:22:33] You know, usually when a case report overrules one of its own cases, it only does it because it has to reach a different result. I mean, the primary example is the Brown vs. Board of Education member. Before that, the constitutional doctrine was the government could comply with the equal protection laws by having separate facilities. Brown versus Board of Education [00:23:00] overruled Plessy versus that the court had to overrule the other case or decide. That's not the kind of ruling that happened in way.

Hannah McCarthy: [00:23:13] That would be a 2018 case called Trump v. Hawaii, which challenged President Trump's executive order restricting travel to the U.S. by people of certain, notably predominantly Muslim nations. The Supreme Court reversed a Court of Appeals decision that this order likely violated the Immigration and Nationality Act and ruled that the president did, in fact, have the power to restrict that travel. Both the opinion and the dissent referenced Korematsu. Chief Justice Roberts wrote the opinion.

Judge Wallace Tashima: [00:23:44] Then he said the dissent referenced requirements affords the court the opportunity to make express what is already obvious. And then he quotes Justice Murphy. Korematsu is wrong. The day was decided has been overruled [00:24:00] by the court of history. And to be clear, it has no place in law under the Constitution. Well, that's all good, and I'm sure you know that. But it's not something that the court had to do in order to reach the result because in spite of, you know, Justice Sotomayor is dissent. The majority still said that, you know, this this proclamation by President Trump is constitutional, so it's really kind of odd, I'd say almost bizarre way case.

Hannah McCarthy: [00:24:36] So is that an overruling? Judge Tashima leans yes, but calls it a weird one. People may generally agree that, quote, being overruled in the court of history is being overruled. And again, legal scholars haven't really sunk their teeth into this one yet. Lorraine Bannai and Karen Korematsu being too strong outliers.

Lorraine Bannai: [00:24:58] First of all, he didn't say [00:25:00] he overruled it. So Justice Roberts, that has been overruled by the court of history, so he didn't overrule it. We don't even know what the court of history is, actually. But even when he said it's been overruled by the court of history, he didn't specify what he was overruling. Did he mean we can never incarcerate one hundred and twenty thousand persons on the basis of race again? But what's most important to those of us who are so disappointed in what he did was that it's really clear that he didn't overrule one of the most important things from Korematsu or several important things from form UTSU. One is the idea that courts should defer on issues of national security, that basically Korematsu was so dangerous because the Supreme Court said if and if the military wants to do this, if it's a matter of military necessity, the court doesn't have a role in in questioning that

Karen Korematsu: [00:25:59] When [00:26:00] when Chief Justice Roberts said that Korematsu was overruled in the court of history is dicta that's a legal term, meaning it was just a reference to the case. It did not. There was no overruling in support of the decision of Trump vs. Hawaii. So, yes, who knows what would happen. I mean, this is what my father was always afraid of, is somehow his case would be would be cited for for, you know, as a precedent in another legal case. And that and that still could happen.

Nick Capodice: [00:26:34] See, that is something that is particularly eerie to me about this case, like the famous relationship between Plessy v. Ferguson and Brown v. Board. You know, Brown versus Board of Education overruled Plessy v. Ferguson. But Korematsu has not been explicitly overruled in the same way. And essentially the mass incarceration of people in the U.S. without due process has not [00:27:00] been canceled in the books, even though pretty much everyone agrees that it's wrong.

Judge Wallace Tashima: [00:27:05] Well, I think it's important to study it, to understand how it came about. And I think to also understand that Korematsu, I'm sure at the time it was decided was a reflection of the great sentiment in the country, partly because America was at war with Japan. I think study it, one to assess, well, was it just, was it not just? If you conclude it was unjust then, you know, I think studying it is going to help you maintain your visual not to let something like that happen again to another group. That's the worry.

Hannah McCarthy: [00:27:45] Part of keeping that conversation alive, according to Lorraine Banai, is that it serves as a reminder of how easily this kind of thing can happen in America.

Lorraine Bannai: [00:27:55] That this isn't just a story about some some crazy people who [00:28:00] decided to be racist, incarcerate Japanese Americans. It's a story about an entire American public that left this happened. And to be able to learn from that, how easy it is for us to walk over that line if we're not paying attention.

Hannah McCarthy: [00:28:20] You know, ultimately, the lesson is really twofold for Karen. One element is this long arc of history that leads to racist actions that we have to understand.

Karen Korematsu: [00:28:31] What people don't realize is the intersectionality of of the the history of this country, the racism, the marginalization, the inhumanity. That's why history is so important. People think, well, why do you have to teach history or why do we have to have Asian Pacific Islander history or why do we have to have black history? Well, because we haven't learned the lessons of history, obviously.

Hannah McCarthy: [00:28:59] And [00:29:00] the other part of the lesson is, well, what her dad did.

Karen Korematsu: [00:29:05] Would like everyone to remember my father's words stand up for what is right and don't be afraid to speak up.

Hannah McCarthy: [00:29:25] If you're thinking that we barely scratched the surface of Japanese incarceration during World War Two in this episode, we agree and we have an addendum in the works. Check out the feed for more from Karen Korematsu, Lorraine Bannai and Judge Wallace Tashima. Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice.

Nick Capodice: [00:29:45] Our staff includes Jackie Fulton, Mitch Scacchi and Erica Janik is our executive producer. Music in this episode by Alex Mason, Bio Unit Croawander, Hinterheim and Xylo Zico.

Hannah McCarthy: [00:29:57] You can learn a lot more about Fred Korematsu and [00:30:00] Japanese incarceration at our website, civics101podcast.org. While you're there, you'll find a link to densho.org, which I cannot recommend enough for learning more about the incarceration during World War Two.

Nick Capodice: [00:30:13] And remember, you can listen to any of our hundreds of episodes and how American democracy works on Apple podcast, Spotify or your podcast app of choice or our website civics101podcast.org.

Hannah McCarthy: [00:30:25] 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.

Civil Rights: Plessy v Ferguson

Today in our series on civil rights Supreme Court cases, we examine the anticanon decision of Plessy v Ferguson. Steven Luxenberg, Kenneth Mack, Keith Plessy and Phoebe Ferguson walk us through the story of Homer Plessy, the Separate Car Act of 1890, an infamous opinion and a famous dissent.

Episode Resources

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Episode segments

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Transcript

Plessy final all.mp3

Adia Samba Quee: [00:00:02] Civics 101 is supported in part by the Corporation for Public Broadcasting.

Nick Capodice: [00:00:09] June 7th, 1892, New Orleans, Louisiana, a 30 year old Black man named Homer Plessy buys a ticket for the 415 train to Covington. The train arrives at the station on the corner of Press and Royal, and it is made up of cars for white passengers and cars for Black passengers, Plessy steps into the car for white passengers and takes a seat. The conductor asks Plessy his race. Plessy tells him. And then the conductor insists he has to move to the car for Black riders. Plessy refuses. And a detective who just happens to be there arrests Plessy and removes him from the car. These are the events that resulted in a landmark Supreme Court decision, an anticanon decision, one universally agreed upon as a mistake. A decision that I thought I knew about, but was dead wrong. You're listening to Civics 101, I'm Nick Capodice.

Hannah McCarthy: [00:01:17] I'm Hannah McCarthy,

Nick Capodice: [00:01:18] And today we're talking about an event that was not just an individual act of protest, an arrest that was anything but coincidental, and contrary to what I've learned beforehand, a decision that did not establish the separate but equal doctrine, Plessy v. Ferguson, 1896

Hannah McCarthy: [00:01:36] So far. Nick, you've talked a lot about what this case is not. Can we start with what it is?

Nick Capodice: [00:01:43] Yeah. In 1890, the state of Louisiana passed the Separate Car Act. This was one of the state's Jim Crow laws, anti-Black laws that enforced segregation. And this act required that trains have, "equal but separate accommodations" for Black and white passengers. But before we get started in this case, the history of separation goes way back.

Steven Luxenberg: [00:02:07] Separation, which is the word they used in the 19th century as a concept, was really born in the north on a railroad line that went from Boston to Salem, opened in 1838.

Nick Capodice: [00:02:19] This is Stephen Luxenberg, associate editor at The Washington Post and author of Separate the Story of Plessy v. Ferguson and America's Journey from Slavery to Segregation.

Steven Luxenberg: [00:02:28] And Throughout the North, before the Civil War, there were instances of separation on public transportation. There were people fighting against that, mostly from the abolitionist movement, the group of radicals that said that slavery should be abolished right now. Some of the precedents later cited in Plessy come from the north before the civil war, where courts ruled that separation was allowable. It was a reasonable rule by the railroad.

Hannah McCarthy: [00:02:56] So a separation which we later referred to as segregation, it came out of the North.

Nick Capodice: [00:03:02] It did. Steven told me that separation wasn't possible in states that were practicing enslavement.

Steven Luxenberg: [00:03:08] But there were always people fighting, resisting in the 19th century against slavery first, then against civil rights violations. Everything is new in this era. Everything is new. The famous Black journalist Ida B Wells, as a 20 year old, is refusing in 1882 to ride in the, quote, colored car. She's not got anybody behind her, she says. Twice she goes to the Tennessee Supreme Court. She loses kind of the deck is rigged against her she learns.

Nick Capodice: [00:03:40] Ida B. Wells is act of brave resistance was ten years before Homer Plessy got on that train in New Orleans. She was initially awarded five hundred dollars in damages, but the Tennessee state Supreme Court overturned it and she was forced to repay the money as well as court fees.

Hannah McCarthy: [00:03:55] Ok, so Ida B. Wells is one of the first to challenge these civil rights issues in the courts. And when Steve says everything is new, what does he mean?

Nick Capodice: [00:04:04] The nation was struggling to figure out how to make the reconstruction amendments, the newly passed 13th, 14th and 15th Amendments actually apply. And this happened when people like Wells put their bodies on the line. But while her protest was an individual action, Plessy's was not.

Hannah McCarthy: [00:04:24] OK. Right. And getting back to Homer Plessy on that day in 1890. What do we know about him? And who was Ferguson?

Keith Plessy: [00:04:31] Homer Plessy was a Creole African descent gentleman who was born on March the 17th. That was St. Patrick's Day. My name is Keith Plessy and I am a fourth generation descendant of Homer Plessy.

Phoebe Ferguson: [00:04:48] Judge Ferguson was not from New Orleans. He was not from Louisiana. Judge Ferguson was born on Martha's Vineyard. My name is Phoebe Ferguson and I am the great great granddaughter of Judge John Howard Ferguson.

Nick Capodice: [00:05:04] Keith and Phoebe head the Plessy and Ferguson Foundation. They visit schools and institutions across the country to share the story of the case and their message that mutual history can be a tool to create unity and understanding.

Keith Plessy: [00:05:17] It's no longer Plessy versus Ferguson is Plessy and Ferguson.

Nick Capodice: [00:05:24] Holmer Plessy's father died at a young age and his mother remarried a shoemaker named Victor Dupart. And Homer learned to be a shoemaker from a stepfather. But he also went with him to community meetings where he learned about civil rights activism.

Keith Plessy: [00:05:38] When the laws came out, he had already been an activist in the neighborhood, in the Treme neighborhood, where he was advocating to keep public schools open.

Nick Capodice: [00:05:46] Homer Plessy joined the Commite Citoyen in Louisiana, which I will refer to here on out as the Citizens Committee. Their full title actually is a bit longer. Steve Luxenberg found their original stationery.

Steven Luxenberg: [00:05:59] They needed a PR person to tell them to get a better name that was easier to say, but the stationery was the committee to challenge the constitutionality of the separate car act

Hannah McCarthy: [00:06:11] The committee's sole purpose was to challenge this one law.

Nick Capodice: [00:06:16] Yeah, and they ran test cases, carefully orchestrated events to purposefully violate the law. And Plessy offered to be the second test.

Keith Plessy: [00:06:25] He looked like a white person. So that was one of the criteria of his volunteering for that protest. And when he approached the train depot, no one noticed him as a person of color, purchased that ticket without any dispute, boarded the first class train car that was designated for whites only and sat down and no one was disturbed by his presence. But when the conductor approached him and asked him, was he a colored man? He responded, yes. And he said you would have to move to the car for your race. And he refused. So the arresting officer stepped up and removed him from the train and made it look real good. It was it was orchestrated well, so they threw him off the train. Physically. They didn't make it look like it was a nice departure for him.

Hannah McCarthy: [00:07:15] Everybody was in on it?

Nick Capodice: [00:07:17] Everybody was in on it! The conductor's actions were rehearsed. The citizen's committee hired that detective to arrest him and write a report. Even the railroad company itself was involved and in support of it because for one thing, it was more expensive to have separate cars.

Keith Plessy: [00:07:30] In those days. If you were interrupting, which was probably one of the most prominent and busy depots, the Press Street wharf, he interrupted business that brought the cotton to be processed to the train depot that day. Normally a person that did something like that in those times would have been hung from a tree, might have never made it to jail, but he was safely whisked off to jail where he was booked, and then he was able to pay the fine after a night in jail to get out because the bail was set for him and the money was set, the budget was set to remove him.

Hannah McCarthy: [00:08:12] So Homer Plessy is arrested and released on bail. How does this case get to the Supreme Court?

Nick Capodice: [00:08:19] The first trial was Homer Plessy v. the State of Louisiana. And his lawyers argue that the separate train car act violated Homer Plessy's rights under the 13th and 14th Amendments. And the judge who heard the case, John Howard Ferguson.

Hannah McCarthy: [00:08:33] There's Ferguson.

Phoebe Ferguson: [00:08:35] They make a presentation. Judge Ferguson says says you've made a very good presentation. And I would like to think about that. We will rejoin in two weeks. And two weeks they come back to the court. Judge Ferguson says he's considered, however, he decides that Louisiana's law, our state, our state's rights and the state has the right to determine whether or not Black and white passengers can ride together. So he upholds the Louisiana state law.

Nick Capodice: [00:09:06] The citizens committee appealed it to the state Supreme Court, which upheld Ferguson's decision. And finally in 1896, they appealed it to the United States Supreme Court, which ruled in favor of Judge Ferguson.

Hannah McCarthy: [00:09:20] What was the vote?

Nick Capodice: [00:09:21] Seven to one, one judge abstained because he had a sick family member at the time. The opinion was written by Justice Henry Billings Brown, and the lone dissenter was Justice John Marshall Harlan.

Kenneth Mack: [00:09:33] John Marshall Harlan, the former slave owner, is the person who dissents and Plessy vs. Ferguson. And Henry Billings Brown, who's from Massachusetts. You know, the kind of cradle of abolition, who's going to Yale and Harvard Law School is the one who writes the majority opinion. So irony of ironies.

Nick Capodice: [00:09:52] This is Kenneth Mack. He's the inaugural Laurence D. Beale professor of law and affiliate professor of history at Harvard University. He walked me through Justice Brown's opinion.

Kenneth Mack: [00:10:04] You know, the basic claim of Plessy and his lawyers is that the statute is unconstitutional under the 14th Amendment because it's discriminatory against African-Americans. Brown has to figure out a bunch of things. First, he talks about political versus social equality. This is all over the rhetoric of white southerners, judges, lots of people after the civil war. They say that the 14th and 15th Amendments gave African-Americans civil and political equality, but they didn't give them social equality. And they say this all the time. What they really mean is that if we don't want to associate with Black people, we don't have to associate with Black people. We don't have to accept Black people into our houses. We don't have to be friends with Black people. The law can't make us do that. Well, the question is, well, is, is a statute that says that you have to sit in separate coaches by race. Is that about social equality? What's a piece of legislation that's not white people choosing not to be friends with Black people? That's a state law saying that Black people and white people can't sit in the same coach. So white southerners reason from the kind of social equality argument to the fact that they they can pass statutes mandating that people be separate by race within state sponsored institutions like schools or within private institutions like railroad cars. And they say that's the same thing as that. That's just social. The law is just about social equality. It's not about civil or political equality, which are the things that the 14th and 15th Amendments cover.

Hannah McCarthy: [00:11:50] Justice Brown is saying that this law is not about civil or political equality. It's about unenforceable social equality.

Nick Capodice: [00:12:01] Yes. And to further justify it, he points to a number of previous cases that said railroads could separate passengers. But there is a problem with that.

Kenneth Mack: [00:12:10] The problem is that almost all of those cases are before the civil war. So the question is, well, you know, did the 14th Amendment change that? And Brown just sort of blinks that. He doesn't acknowledge that the actually the 14th Amendment did something.

Nick Capodice: [00:12:26] Kenneth said it was an extremely narrow, extremely specific minute reading of the 14th Amendment, where he acknowledged, yes, the amendment was created to enforce equality, but that it, quote, could not have been intended to abolish distinction based upon color. And then we come to the lone, now famous dissent of Justice Harlan.

Kenneth Mack: [00:12:47] I mean, I think Harlan's making two or three points. One is that the 13th and 14th Amendment changed things, that they gave new constitutional rights that weren't there before and that they were supposed to change both the framework of citizenship and the racial order. You know, so before these were enacted, you know, you could use law, you could segregate, you could you can make white people superior, but 13th and 14th Amendment changed things. And the second thing he's saying is basically this is not neutral. Everybody knows why the statute was enacted. Everybody knows the symbolic import of this is to keep Black people out of railroad cars where white people ride because Black people are presumed to be inferior. He is saying, well, you can't use law to erect white supremacy. And he's saying that's what this statute does.

Nick Capodice: [00:13:46] I want to quickly add here, this was not Harlan's first dissent on this subject. He was the only dissent in what is called the civil rights cases of 1883, a decision that said that the federal government could not outlaw racial discrimination by private individuals. In 1906, he gave his family Bible to the Supreme Court. And since then, every single justice has signed their name within it. Justice David Souter said that signing his name in the Harlan Bible was, quote, the most humbling thing I have ever done in my entire life.

Hannah McCarthy: [00:14:18] Something that you mentioned earlier that I want to get straight is that you thought this was a case that cemented the separate but equal doctrine, but you learned that that's not necessarily true.

Nick Capodice: [00:14:30] Yeah, it is and it isn't true. This decision, in essence, yes. Prevented the constitutional challenges to racial segregation for over half a century. And the words separate but equal doctrine were on my Plessy v. Ferguson flashcards in school. But Steve Luxenberg corrected this for me.

Steven Luxenberg: [00:14:49] So I see a lot of the shorthand that my journalistic brethren use is the Supreme Court established the doctrine of separate but equal and made it the law of the land. And for Civics 101, let's talk about both parts of that sentence. What is a doctrine? We can give it a lot of synonyms: an order, an established set of rules. What you would expect if the Supreme Court had established a doctrine that there would be a clear doctrine in the majority opinion. But if you read the majority opinion, there's no doctrine. Now, did it have the effect of sanctioning a custom that had been going on? Yes, it had that effect. Did the Supreme Court make it the law of the land? It's the judicial branch. It's not the legislative branch. It can't make laws. You can say, Steve, you're parsing words here. Didn't it have the effect of being the law of the land? And the answer is no. It didn't really did not apply because it was a state legislature acting in Louisiana. Other state legislatures had to act to create laws that were similar. They they did in some cases, but not everywhere, not the law of the land.

Nick Capodice: [00:16:04] Steve says the blame for separate does not lie with this case.

Steven Luxenberg: [00:16:08] If we lay the blame on those nine justices of the Supreme Court, eight justices in this case of the Supreme Court, we are taking ourselves off of the hook. We have to own the doctrine of separate but equal, which began in the north in the 1830s. We have to accept that it was already the custom of the country. It's not the Supreme Court's fault. It is all of our faults.

Nick Capodice: [00:16:37] And to reinforce what Steve is saying here, the words separate but equal are nowhere in the decision.

Hannah McCarthy: [00:16:45] Nick, before we wrap up, you know, we always try to find modern reverberations of these Supreme Court opinions. And I know that the Plessy decision was overturned in 1954 in Brown vs. Board of Education of Topeka, the case that started the path to desegregation. But is there anything from Plessy that is still with us today?

Nick Capodice: [00:17:09] Kenneth Mack left me with this.

Kenneth Mack: [00:17:11] It's quite relevant today. The case was about how to think about laws or public policies that were alleged to be discriminatory against one race, in particular discriminatory against African-Americans who had historically been discriminated against, the court goes out of its way to say that the law was neutral, the segregation statute was neutral. Sometimes it looks as though we can find a nondiscriminatory neutral purpose. But to do that is simply to blink reality. So, for instance, um, you know, the recent Georgia voting statute.

archival: [00:18:00] Georgia Republican lawmakers have passed a law on a party line vote or overhauling the election rules in that state. They say the law will help protect against voter fraud. But Democrats and critics say the law disenfranchizes primarily people of color and the fraud claims have no basis, in fact...

Kenneth Mack: [00:18:19] Is this a neutral enactment or is this an enactment where if you look at the context, we all know who the act will fall most heavily on, and we can always articulate neutral reasons for these things. And in fact, that's the lesson of Plessy. That a bunch of very, very smart Supreme Court justices can articulate neutral reasons that the larger society could articulate neutral reasons and that it's necessary to dig a little deeper and to look at the context, the way that Harlan looked at it, to figure out what's really going on.

Hannah McCarthy: [00:19:09] I think one of the major things they take away from this story is that from Ida Wells to Homer Plessy to Claudette Colvin to the four students who sat down at a Woolworth's lunch counter in Greensboro. So much of the long civil rights movement involves acts of sacrifice, of people being told to move. And saying no.

Nick Capodice: [00:19:45] That is a picture wrap on Plessy v. Ferguson. We got more civil rights cases in the Supreme Court headed your way. So stay a while and listen. Today's episode was produced by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton. And Erika Janik is our executive producer. Music in this episode by Yung Kartz, Scott Holmes, Ikimashu Oi and Chris Zabriskie. To hear about the other cases in this series or to hear any of our hundreds of episodes, follow us on Apple podcasts, Spotify or your podcast app o' Choice. You can also visit our Web site, civics101podcast.org. All of our new episodes have materials for educators teaching these subjects. And while we're here, why not be our friend on Twitter @civics101pod? Come on by. Say hello. Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Civil Rights: Dred Scott v Sandford

In 1846, Dred and Harriet Scott were living in St. Louis, Missouri with their two daughters. They were enslaved and launched a not uncommon petition: a lawsuit for their freedom. Eleven years later Chief Justice Roger B. Taney would issue an opinion on their case that not only refused their freedom but attempted to cement the fate of all Black individuals in the United States. Taney would ultimately fail and the Reconstruction Amendments would dash Taney’s opinion in Dred Scott v Sandford, but not before the case was forever cast as a Supreme Court decision gone wrong.

The Scotts’ great great granddaughter, Lynne Jackson, is joined by Chief Judge John R. Tunheim of the U.S. District Court of Minnesota to tell the story of the Scotts and their case.

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

Episode Resources

Lynne Jackson’s Dred Scott Heritage Foundation site offers regular updates on educational programs, efforts to promote the Dred Scott story and the community of descendants preserving their heritage. Please note! THIS is the active website. This is the archived website.

The Old Courthouse museum at Gateway Arch National Park in St. Louis, Missouri is a must-visit. This is also the site of the Dred and Harriet Scott statue that launched Lynne Jackson’s efforts to preserve the Scott story. They are currently undergoing renovations which will include a large exhibit devoted to Dred and Harriet Scott.

We talk about anticanon in this episode and give you a sense of how it’s generally interpreted, but this article by Jamal Greene is a remarkable argument for deeper interrogation of the anticanon cases and why we believe they’re wrong. If you’re a SCOTUS nerd consider this a must-read.

Street Law has created wonderful free case summaries on Scott v Sandford, click here for High School or Middle School

Episode Segments

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Made possible in part by the Corporation for Public Broadcasting.

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy:
I'm Hannah McCarthy,

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

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

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

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

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

Hannah McCarthy:
What's a numbers racket?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy:
Does it?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice:
You remember, Wolfe v Colorado?

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

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

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

Nick Capodice:
And the advocate is like,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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Made possible in part by the Corporation for Public Broadcasting.