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Today we learn about the 27 words that have been interpreted and reinterpreted by historians, activists, judges, and philosophers. What did the 2nd Amendment mean when it was written? What does it mean right now? And what happened in between?
Today's episode features Saul Cornell, professor of history at Fordham University and author of A Well Regulated Militia, Alexandra Filindra, professor of political science at University of Illinois Chicago and author of the upcoming Race, Rights, and Rifles, and Jake Charles, lecturing fellow and executive director of the Center for Firearms Law at Duke Law.
Listen here:
Archival: The right to keep and bear arms is the one right that allows rights to exist at all. Now, either you believe that or you don't, and you must decide because there's no such thing as a free nation where police and military are allowed the force of arms, but individual citizens are not.
Saul Cornell: I often say if we go back to what the founders thought about guns, it would be the worst nightmare for gun rights people and gun control people. Because [00:00:30] you get rid of stand your ground, your duty would be to retreat. The government would inspect your firearm in your home. It would penalize you if you pick the gun you want instead of the gun the government wanted for you. On the other hand, be more like living in Switzerland or Tel Aviv because we would all be part of a well-regulated militia and we would have to drop everything at a minute's notice and report to muster.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And at the top, you heard actor and former president [00:01:00] of the NRA, Charlton Heston. There's going to be more of him later. And right after that, you heard Saul Cornell. He's a professor of history at Fordham University, and he wrote the book A well-regulated Militia. Saul teaches popular constitutionalism in the Early Republic. And we talked to Saul because today we're talking about the Second Amendment, what it meant when it was ratified, what it means as of this moment and what happened in between. We're also going to talk about the amendment in the Supreme Court, the [00:01:30] NRA and the truly unique relationship between our country and gun ownership.
Hannah McCarthy: All right. That's a lot. Yeah, that's a bit of a labyrinth. So can we just start with the words? What does the Second Amendment say?
Saul Cornell: So the Second Amendment, which is probably the most frequently invoked and poorly understood part of the first ten amendments, reads A well-regulated militia being necessary to the security of a free state, [00:02:00] the right of the people to keep and bear arms shall not be infringed.
Hannah McCarthy: So all said, frequently invoked and poorly understood. I mean, we have trouble whenever we try to understand the intent of the framers in their historical context. And regardless of their intent, that kind of doesn't matter. Because what matters is the people who interpret the Constitution whose job it is to do so. The Supreme Court.
Nick Capodice: Yes, absolutely. When the Supreme Court says what something means, it means [00:02:30] that as far as the law is concerned. But back to the intent, the NRA website says, quote, The founding fathers felt that citizens should be able to protect themselves against the government and any other threat to their well-being or personal freedom. But, you know, you don't hear a lot of discourse about what the framers meant when they wrote the Seventh Amendment.
Hannah McCarthy: Yeah. I mean, you don't see like ranting YouTube videos about people talking about why a civil case involving $20 or more should be heard in front of a jury. But back to the Second [00:03:00] Amendment. Why is it so tough to interpret?
Saul Cornell: Modern Americans are quick to say, oh, how did they write such a bad amendment? I mean, how did they manage to screw it up so horribly? But in fact, if you're conversant with the way people talked and wrote about the law in the 18th century, it makes a lot of sense. It uses a very common Latinate construction called the Ablative absolute, and the best way to render it in modern English would be to say because a well-regulated militia is necessary [00:03:30] to security of a free state, the right of the people to keep and bear arms shall not be infringed.
Hannah McCarthy: An ablative absolute.
Nick Capodice: Yeah. I don't want to go too deep into this, but I encourage everyone to look up an article called, "our Latinate Constitution." It's all about how the framers emulated the style of Greek and Latin authors and philosophers. An ablative absolute is an adverbial modifier of the predicate that's not grammatically dependent on any word in the sentence, which I cannot wrap my head around. [00:04:00] Hannah But an example from a Latin textbook is having received the letter, Caesar sends a messenger. Since a well-regulated militia is necessary, the right shall not be infringed.
Hannah McCarthy: Okay, so while we're doing historical context to terms, I want to understand are militia and bear arms?
Nick Capodice: Absolutely. And I'd like to start with what a right to bear arms meant back then.
Saul Cornell: Most of the first state constitutions did not have [00:04:30] a provision on the right to bear arms, which is shocking given our obsession about it today. And perhaps most interesting of all, when they did include such provision, they often included a balancing provision which protected the right not to bear arms.
Hannah McCarthy: Why would you need that right not to bear arms? What does that mean?
Saul Cornell: Bearing arms in the 18th century was an obligation, and we're not used to thinking of rights as carrying obligations in modern American law. We generally think that if [00:05:00] you have a right, it imposes an obligation on either the government or other people to respect that right.
Nick Capodice: In 1792, you were obliged as a white male between the ages of 18 and 45 to buy, keep and maintain your own military weapon, ammunition, backpack, all that stuff. You had to submit it for inspection, and you had to always be ready to report to serve your country if needed.
Hannah McCarthy: Okay, but why would someone need to have a right to [00:05:30] not bear arms.
Nick Capodice: Because of their religion. These were religious pacifists and we're sort of touching on First Amendment territory here. But Saul gave me the example of the Quakers.
Saul Cornell: Quakers by the time that the Second Amendment was adopted, had won the ability in Pennsylvania not to bear arms, because the Pennsylvania Constitution is one of those states with a provision that says you cannot be forced to bear arms. But that wasn't good enough for them. They [00:06:00] felt that any support for militia activity or warlike behavior violated their peace testimony. I mean, they literally took the idea of turning the other cheek as you just turn the other cheek, you do not you don't engage in war like activity. You don't engage in any kind of violence, verbal or physical. And these Quakers refused to even pay taxes to support the militia.
Nick Capodice: And if we're looking at it through the modern day [00:06:30] lens of bearing arms as just having a weapon, the Quakers certainly did that. They were hunting with guns. They even manufactured guns. But at that time that wasn't bearing arms. If you were playing a drum in an army, if you were carrying a stretcher that is bearing arms, it's supporting war.
Saul Cornell: It just shows you how different their world is and how most of the people talk about the Second Amendment today are just essentially functionally illiterate in 18th century constitutional [00:07:00] English. And what they do is they project backwards our obsessions and our understanding. And of course, in modern America, having a Glock in your bedside table so you can kill people is how most people think of what it means to bear arms.
Hannah McCarthy: All right. Let's move on to a well-regulated militia. How does a militia differ from the US army?
Nick Capodice: Okay. First, a quick clarifier. When we're talking about militia in this episode, we [00:07:30] are not talking about what law enforcement today called the American militia movement. That's modern day paramilitary organizations. We're not talking about those. But this is interesting. The Continental Army, which fought the American Revolution, was disbanded almost immediately after the war, and then state militias took their place and became our only ground army.
Hannah McCarthy: Okay. You said white males from 18-45 would be required to enlist; can we get into the white male part of that, please?
Alexandra Filindra: So basically, this is the definition of who is a [00:08:00] citizen in Republican terms, who gets to be a citizen in these two dimensions of citizenship.
Nick Capodice: This is Alexandra Filindra. She's a professor of political science at the University of Illinois at Chicago. She's also the author of the upcoming book Race Rights and Rifles. And Alexandra talked to me about Republicanism. This is not related to the modern day Republican Party. Republicanism is the political ideology. In early America. That was the basis for our revolution [00:08:30] and our foundational documents. And that ideology continues in the history that America is writing for itself today.
Alexandra Filindra: Americans had to explain to themselves and to the world why it was that there were this race and gender based restrictions, right, to who gets to be a citizen. So you need a theory because Republicanism basically says that in order to be a good citizen, [00:09:00] you have to be willing to die for the country. You have to be willing to use violence and bear arms for the purpose of the Republic. So in the American context, the myth that was created was that white colonists proved themselves to be virtuous and therefore deserving of Republican citizenship because they fought to death at the revolution.
Nick Capodice: The Boston Tea Party. Shay's Rebellion. [00:09:30] The Revolution itself. The Confederacy in the U.S. Civil War. These are violent anti-government uprisings, and they have been spoken of with words like patriot freedom fighters. One book was written that said the South had a, quote, honorable defeat.
Alexandra Filindra: And we see that over and over in American history when African Americans use violence and armed violence. It is described [00:10:00] in the language of criminality. Whereas the guys who went to the insurrection on January 6th, it was described in the language of liberty, freedom, don't tread on me. These high moral and political principles and these don't apply to African Americans in in this white male supremacist world. And this is how [00:10:30] guns became symbolic and very positively symbolic of white good citizenship.
Hannah McCarthy: Okay. So Alexandra is saying that it is uncommon to see instances of black Americans displaying arms. I'm thinking of the Black Panthers, for example. Or using violence and then hear it described as an act of patriotism.
Nick Capodice: Right. And to support her point, you can just read modern day responses [00:11:00] or the lack thereof from the NRA. And NRA supported politicians regarding instances where police have killed legally armed Black Americans.
Hannah McCarthy: Okay. So getting back to the militia, that's not how we do things anymore, Nick. So what changed the system?
Nick Capodice: Well, frankly, the system changed due to its effectiveness or should I say ineffectiveness.
Alexandra Filindra: In reality, the militia was useless as a military organization. [00:11:30] They were horrible because the states didn't have the money or the interest to train them and because they were citizen soldiers, they could vote out any politician who insisted on rigorous training. They like the trappings of military service because this is service in quotes. They like the uniforms and they like the weapons, and they run around doing drills with fancy weapons of the time and fancy uniforms. [00:12:00] But when it came to real training, they didn't want to do it.
Nick Capodice: There were enormous problems with militia members deserting in the war of 1812, but the biggest demonstration of the failings in the system was the Civil War
Alexandra Filindra: In the Civil War, the militia showed how badly trained there were. There were constantly brawling, and they weren't working with each other from different states because they didn't have any contact. They had no organizational training, [00:12:30] and they were drunk.
Nick Capodice: And a group of officers from the New York State militia who saw how terribly the militia had performed in the Civil War, devoted themselves to the task of training them, specifically training them how to shoot better records from the union estimated that its troops fired about 1000 rifle shots for each Confederate soldier hit.
Hannah McCarthy: So they weren't just ineffective. They were also, I would assume, costing a lot of money.
Nick Capodice: Yeah. So this new group of officers sent emissaries to other [00:13:00] countries that had militias Germany, the U.K, Canada to see how they train their soldiers to shoot better. And in 1871, this group was chartered in New York State as an association for the purpose of teaching marksmanship.
Hannah McCarthy: Is this going where I think it's going, yeah. An association that would teach people nationally how to properly use their rifles.
Nick Capodice: You got it. This is the birth of [00:13:30] the NRA.
Alexandra Filindra: In the early 1900s when a very, very famous National Guardsman was President Teddy Roosevelt. They were able to get out of Teddy Roosevelt, a new law which provided a subsidy and a monopoly to the NRA for the purpose of training civilians in marksmanship. The federal government committed the provision of surplus weapons [00:14:00] and ammunition for free or at a cost exclusively to NRA and its members for the purpose of military preparedness to morally and in terms of technical skills, create soldiers out of civilians for the purposes of the draft. The NRA didn't become powerful. It was powerful because the NRA was basically the same thing as the National Guards.
Hannah McCarthy: What [00:14:30] does she mean that the NRA was the same thing as the National Guard?
Nick Capodice: Well, in 1903, the state militias were all renamed the National Guard, and they were exclusively trained by the NRA. The heads of the National Guard were the heads of the NRA. Alexander told me a story about a congressional hearings in the 1930s where a guy testified in front of the House as the president of the NRA, and then two days later, the same guy testified in the Senate as the adjutant general of the National [00:15:00] Guard.
Hannah McCarthy: Is that not kind of a conflict of interest?
Nick Capodice: I mean, it is. But honestly, nobody really cared much at the time because everyone was all in on this program of training civilians to protect the government.
Hannah McCarthy: Did the program work?
Nick Capodice: No.
Alexandra Filindra: Because the idea was, okay, we will get them young. We will teach them how to use a gun. And then they will be so excited and morally uplifted by this that they'll want to be in the army. This didn't happen. This was hugely wasted money. [00:15:30] And even though report after report showed that this was wasted money, the program exists today. It stopped being a monopoly of the NRA in 1968. But for an entire century, basically, the NRA had a monopoly over this program that basically gave free guns and ammunition to citizens just for being members of the NRA and members of gun clubs.
Hannah McCarthy: What happened [00:16:00] in 1968 that ended the NRA's monopoly?
Nick Capodice: A lot. A lot happened in the 1960s. And here's where we start to talk about how the Second Amendment legally affects us. And that's coming up right after the break here on Civics 101.
Hannah McCarthy: But first, a reminder that our show is public media and you are the public. Support it with a donation in any amount at our website civics101podcast.org or click the link in the show notes to make a donation [00:16:30] right now.
Nick Capodice: All right, we're back. We're talking about the Second Amendment.
Hannah McCarthy: Now, Nick, we've gotten into the history of the amendment, but now I'd really like to hear about the laws. You mentioned 1968. Is that the year of the first federal gun legislation?
Nick Capodice: Well, I'd love to go a little bit earlier than that. Here is Saul Cornell, professor of history at Fordham University and former director of the Second Amendment Research Center.
Saul Cornell: You can go back to the 14th [00:17:00] century and the statue of Northampton. Hundreds of years before guns even exist. And you have a law in Britain saying you cannot go armed. In this case, it wouldn't be firearms before the king's ministers or in fairs or markets, because there is this notion that carrying arms in heavily populous areas is just not a good idea. Although in most parts of the world, the idea that modern American gun [00:17:30] regulation would depend on a statute passed in the 14th century where there were no guns makes most people in the rest of the English speaking world both laugh and kind of shake their head like, what is going on with you people? And what is this theory of originalism where you actually care more about what was going on in 1328 than the massacres you see now with almost appalling frequency?
Hannah McCarthy: Is Saul implying that much of the world would be baffled by our devotion to adhering to these laws [00:18:00] written so long ago?
Nick Capodice: I think he is. But we do focus on the intent of our framers, specifically when it comes to the Second Amendment. So I'm going to get into it. During the American Revolution, authorities would forcibly disarm you if you didn't swear a loyalty oath to protect your government. You could hunt. You could keep a gun in your house, though, in Boston in 1786, you couldn't keep a loaded one there. And if it was a military issued gun, it had to be registered and regularly checked by your militia. But you were forbidden from having what we now call open carry [00:18:30] guns just out and about when traveling or being in public places. And later on, these rules also extended to places where due to Hollywood, we tend not to think of as heavily restricted gun wise. Here's Alexandra Filindra again.
Alexandra Filindra: Even then, you know, you carrying your arms. But if you went to the okay Corral, the town required you in Arizona and Tombstone. [00:19:00] Arizona required you to leave your guns at the entry of the town before entering it. So, no, no guns were allowed into the town. Very, very regulated, guns wise west.
Saul Cornell: The idea we have always carried guns everywhere all the time is just another gun rights fantasy masquerading as history.
Hannah McCarthy: That's carrying guns in public, though. What about carrying a gun in secret?
Nick Capodice: Oh, legislators passed way more laws preventing that more than open carry.
Alexandra Filindra: Traditionally, in the 19th [00:19:30] century, people were far more concerned about concealed carry than public carry. It's only the criminals who have guns that can be hidden because they're going to attack you when you don't expect it.
Nick Capodice: All of this legislation being it permitting open carry in certain circumstances or banning it in others never comes to the federal level as far as the Supreme Court is involved. Until the 1930s U.S. [00:20:00] v miller, 1939, Jack Miller violated the National Firearms Act of 1934 and carried a sawed off shotgun across state lines.
Hannah McCarthy: And that was illegal at the time.
Nick Capodice: It was. In 1934. We were just coming off an enormous amount of armed violence in the era of prohibition and gang activity, the St Valentine's Day massacre, the National Firearms Act, the NFA put an exorbitant tax on weapons used during that era. So I'm talking [00:20:30] about the Thompson or the Tommy gun. Sawed off shotguns. Silencers on pistols. Explosives like grenades and bombs. Now, the act initially included handguns as well. And interestingly, the NRA supported the National Firearms Act. They helped shape its wording. They agreed there's no place for Tommy guns and grenades in America, but they disagreed with the handgun restriction. So that was stripped out. But back to Jack Miller. Miller was caught with a sawed [00:21:00] off shotgun and he argued the NFA violated his Second Amendment rights.
Hannah McCarthy: So the Second Amendment finally got its day in court.
Nick Capodice: Yeah, kinda. And it comes and goes pretty fast.
Hannah McCarthy: What was the decision?
Nick Capodice: It was unanimous. Miller lost. All of the Supreme Court justices agreed the NFA is not unconstitutional because the Second Amendment has nothing to do with gun ownership [00:21:30] outside the context of a well-regulated militia. Justice McReynolds wrote the opinion where he said, unless having a sawed off shotgun, quote, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Hannah McCarthy: Okay. See, that opinion seems to have very little to do with what I consider sort of prevailing interpretations of the Second Amendment. How long until we see a case where it's [00:22:00] discussed with more detail and debate?
Nick Capodice: About seven years. And before we talk about the more recent Supreme Court interpretation of the Second Amendment. A lot of stuff happens in the US.
Alexandra Filindra: After several attempted assassinations against presidents and after the successful assassination of Kennedy and after the successful assassination of Bobby Kennedy and the successful assassination of Martin Luther King, Malcolm X, you name it. But another problem was [00:22:30] that Klan members and the Minutemen and other extremist organizations in the sixties became members of the NRA and and got access to federal guns and ammunition to fight against the civil rights movement and also against the federal government. And that kind of became a problem and the NRA was investigated.
Hannah McCarthy: What was the result of the investigation?
Nick Capodice: I don't know because it's not public. Alexandra only had a summary of the investigation and she's been trying to get her hands on the full report [00:23:00] for a long time. She hasn't been able to. But shortly thereafter, Lyndon Johnson ended the NRA's monopoly on training the National Guard, and he signed the 1968 Gun Control Act.
Archival: Today, we began to disarm the criminal and the careless and the insane. And all of our people who are deeply concerned in this country about law and order should hale this day.
Nick Capodice: Now that act [00:23:30] banned mail order sales of shotguns and rifles and it prohibited felons and drug users and people found mentally incompetent from purchasing any guns. And this is where the NRA made a big pivot.
Jake Charles: So in the mid 1970s, there was what's called the revolt at Cincinnati with the National Rifle Association.
Nick Capodice: This is Jake Charles. He's the executive director at the Center for Firearms Law at Duke University School of Law.
Jake Charles: And [00:24:00] what that refers to is a moment in time where hardliners in the NRA who thought the NRA was being kind of too cozy with those who were in favor of regulations, what at the time were kind of some fairly mild regulations. The hardliners thought the NRA was not taking enough of a stance for the Second Amendment. And so they took over the organization. And the organization after that point became the organization that we know it today, which is an organization [00:24:30] that is opposed to most forms of gun regulation.
Nick Capodice: The revolt of Cincinnati was in 1977, and I don't think I can overstate its importance. So again, in the late 1960s, the NRA was not politically powerful. It was fairly flexible about gun regulation. But at their convention in 1977, the hard liners who opposed any gun legislation whatsoever outnumbered those who were open to regulation. [00:25:00] New leaders indeed took over, and there was an adoption of a do not give one inch mentality towards firearm legislation. And very quickly, the NRA's focus shifted. It was no longer just about hunting or marksmanship, but something else entirely. It was about opposition to gun legislation, and it was about mobilizing voters.
Archival: And this is where the NRA organizes its million plus members. This [00:25:30] is headquarters in Washington. Buzz computerized, heavily staffed, well-funded and geared for action. Friend and foe agree. The NRA's power to scare congressmen lies in its ability to mobilize its members in any congressional district at the touch of a computer button.
Jake Charles: What we see then is the NRA in 1980 is endorsing Ronald Reagan. It's the first time the NRA endorsed a presidential candidate. Ronald Reagan returned the favor once [00:26:00] he was in office and he would became a very pro gun president. And so the eighties, we see the Congress enacts the Firearm Owners Protection Act, which provides a lot of rolls back some of the federal regulations there have been on guns and protects gun rights a lot. Keep fast forwarding the gun rights movement becomes kind of more powerful. The NRA becomes more powerful. We start to see these challenges to what had been the prevailing interpretation of the Second Amendment for [00:26:30] at least 100 years, which was that it was tied to the militia.
Nick Capodice: And this is when we started to hear things like this.
Archival: So it's not unreasonable that with one lost generation we could lose the Second Amendment forever because we didn't teach them what the battle is all about. We didn't strike that spark in their hearts that lights the fire for freedom.
Nick Capodice: That, again, was Charlton Heston, five turned president of the NRA in an NRA produced short film called A Torch [00:27:00] with No Flame.
Hannah McCarthy: Are you saying that until the 1980s, the Second Amendment was not really talked about as pertaining to an individual's right to own a gun?
Nick Capodice: That is what I'm saying. It was not. I watched an episode of 60 Minutes from 1977 on the inner workings and beliefs of the NRA. And the Second Amendment wasn't mentioned even once, and I was quite shocked to learn about this. Hanna And I was so shocked that I asked Jake that exact question. [00:27:30] Was this interpretation new?
Jake Charles: Yes, I think that's I think that's a fair way to put it at the NRA's kind of energizing moment in the seventies. And with Reagan's presidency in the eighties was first or not first, but at least alongside advocates, we saw legal scholars publishing and we saw gun rights activists publishing in law reviews and in legal journals arguments. The Second Amendment had been misinterpreted for the past hundred years by [00:28:00] the federal courts, and that actually does protect an individual right. They claim to discover a lost history that hadn't been there before and that everyone had overlooked when they were interpreting the Second Amendment, and that it actually protects an individual right unconnected to any service in a militia. So it certainly has not been the prevailing view throughout American history. There is really strenuous debate about how much of it is recovering, what had been an old view that was lost and how much of it is. Creating a new view that responds to current [00:28:30] concerns.
Hannah McCarthy: So basically, the NRA is not just lobbying members of Congress. They're contributing a new philosophy to the academic and legal discourse.
Nick Capodice: They are. But as Jake said, there is to this day debate about whether this philosophy is completely new or it existed hundreds of years ago. And we're just bringing it up again. And to add to this thought, former chief justice of the Supreme Court, Warren Burger, in an interview with PBS in 1991, said that the gun lobby's modern day interpretation of the Second Amendment was, [00:29:00] quote, one of the greatest pieces of fraud. I repeat the word fraud on the American public by special interest groups that I have ever seen in my lifetime, end quote. And all this brings us to the next Supreme Court decision invoking the Second Amendment. District of Columbia, the Heller.
Archival: We will hear argument today in case 072 90, District of Columbia versus Heller. Mr. DELLINGER. Good [00:29:30] morning, Mr. Chief Justice. It may please. The Court The Second Amendment was a direct response to concern over Article one, Section eight of the Constitution, which gave the new name.
Nick Capodice: And by 2008 there had been a few federal laws regarding guns and lots of state and municipal restrictions. The big ones that I should mention here are the Brady Handgun Violence Prevention Act, often called just the Brady Bill from 1993. That requires instant background checks to be performed when anybody [00:30:00] buys a gun. Now, there are loopholes to this. By the way, a study in 2017 found that 22% of gun purchases happen without a background check. And when we're looking at state and municipal gun laws, the relevant one in this case is one from 1975. It's a law that forbid residents of Washington, D.C. from keeping handguns in their homes. Dick Anthony Heller was one of six parties in this case. He was a police officer who used a gun at work, but he said he wasn't [00:30:30] allowed to have one in his home. The case was argued in March of 2008 and the court issued its opinion three months later.
Archival: Our opinion is very lengthy, examining in detail the text and history of the Second Amendment.
Hannah McCarthy: How did they rule.
Nick Capodice: For Heller. For the view that the Second Amendment protects your right to own a gun in your home.
Jake Charles: And in Heller? The Supreme Court endorses that view by a vote of 5 to 4. So it's the five more conservative justices on the side of the Second [00:31:00] Amendment protects this individual right and the four more liberal justices who look at the same history, the same sources that the majority looks, looks at and says, actually, it's tied to a militia. It's not an individual. Right. Unconnected to what that prefatory clause says it's connected to. Right. And what the court said in Heller, or at least the five justices in the majority, what they said was the militia was the reason for the codification of the Second Amendment. This is the reason they drafted it and put it in the Constitution. But their [00:31:30] reasons for putting it in there don't restrict what the scope of the right was. And so what they said, the scope of the right is, is this second clause the right of the people to keep and bear arms? And what Justice Scalia said, writing for the majority, was that self defense is at that core of the right of the people to keep and bear arms. It might not have been the reason that they put it in there, the reason they ratified the Second Amendment. But that was the core of the right that they were protecting.
Nick Capodice: And now, because the Supreme Court is the interpreter of [00:32:00] the words in our Constitution, the Second Amendment is about our right to own a gun, regardless of our involvement with the militia.
Hannah McCarthy: All right. The Heller decision allows handgun ownership federally, but as we see with so many Supreme Court decisions, you know, it often takes some time for that decision to apply to all the states. And this matters a lot because state laws are the ones that actually affect our lives.
Nick Capodice: Right. And the Heller decision took two years to apply to all the states, which it did in another 5 [00:32:30] to 4 ruling almost the same justices except in the minority. You got Justice Sotomayor instead of the now retired Justice Souter. And this is a case called McDonald V City of Chicago. Chicago being another city where handgun ownership was restricted. And this opinion was written by Justice Alito.
Saul Cornell: And in the McDonald decision, which was the case that applied Heller to the states and to localities, incorporated the Second Amendment, to use a phrase familiar to those of you who [00:33:00] study the Constitution out there. So Justice Alito says, well, clearly they decided to rewrite these provisions and take away the focus on the militia. So therefore, it's an individual right, which. Fair enough. But he stops reading right in the middle of the sentence, because the very next line in all these state constitutions is in the legislature shall have the right to regulate arms in public.
Nick Capodice: For example, in his opinion, Justice Alito references the Texas Constitution of 1869, which does say, quote, [00:33:30] Every person shall have the right to keep and bear arms in the lawful defense of himself or the state. But there is no mention of the second half of the sentence which says, quote, under such regulations as the legislature may prescribe.
Saul Cornell: So literally, you have the originalists being textualists; to the point in the text where it contradicts what they want to do. What tends to happen in American constitutional law all too often is we invoke history. But the history that we use to construct [00:34:00] our law is a kind of bizarre combination of mythology, ignorance and anachronism, which is a fairly potent cocktail. If you're mixing one up, you know, one part ignorance, one part anachronism and one part myth. I mean, it's a heady brew, but it's it's not really what historians understand the past to be. I mean, the the basic principle we start [00:34:30] with as historians is if you're not a little confused by how differently they approach something, you're probably not understanding what they meant.
Hannah McCarthy: Now this is an episode about the Second Amendment and its history and its interpretation in the courts and the public discourse. But it is also about America's relationship to guns. Now, when the Constitution was written, [00:35:00] our framers were wary of parties, right? They were wary of factions, even though they happened almost immediately and over the years. Gun regulation has indeed become a partisan topic.
Nick Capodice: It has a very partisan topic, and it's grown more partisan over the last 30 years. A quick example. In 1992, the NRA donated to the campaigns of candidates for the House and a 6040 split, 60% to Republicans, 40% to Democrats. But in 2016, [00:35:30] Republican candidates received 98.4% of such donations.
Hannah McCarthy: Nick, what's next? If we are so deeply divided on this, what can we expect in the next 50 years?
Nick Capodice: Well, since Jake Charles teaches a class at Duke just on the Second Amendment, I asked him what his students say. Do any of them change their mind?
Jake Charles: So I think most of my students come into class thinking that [00:36:00] gun regulations are totally fine and that the Heller decision is bogus. I think by the end of class, they're both conflicted about both of those from the kind of that side of the aisle in that, you know, there is an ambiguous history there. Right. There are things you can point to in the founding era, these concerns about tyranny, these protections for an individual to defend themselves. And so there's lots of there's [00:36:30] maybe more evidence than they had thought there would be. When they just look at the Second Amendment, they're more conflicted about these regulations over particular people possessing firearms. Most of them, I think, get to that point in the class and they say, well, if we're going to have this right, it's got to be available to everybody. It doesn't make sense to limit it to these classes. That's just, you know, that's just racist or classist. On the other side, I think what a lot of my students who are against regulation are strong Second Amendment supporters come away a little more conflicted about is [00:37:00] that the fact we're not talking about are you for the Second Amendment or are you for gun regulation? It's always throughout American history been been both. There has been a strong gun culture. There has been a strong regulation culture. And so it's not just this monolith of of are you for gun regulation, it's this particular proposal. Are you for this particular proposal? And a lot of them say, well, yeah, not everyone should have guns.
Hannah McCarthy: Now we're recording this episode three weeks after the mass shooting in Buffalo, two [00:37:30] weeks after the school mass shooting in Uvalde, Texas, and one week after the Warren Clinic shooting in Tulsa. So from a constitutional Second Amendment viewpoint, Nick, are things going to change? Did your guests talk about how we can consider gun rights in the light of America being the mass shooting capital of the world?
Nick Capodice: Yeah, they did. Alexandra Filindra said she didn't think anything would change anytime soon as gun control is such a volatile topic [00:38:00] that nobody specifically no Republican running for Congress would dare talk about restricting access to guns because they'd be primaried out. But I have to add, as of just a handful of days before this recording, there has been an announcement of a bipartisan deal on gun legislation. It's the first of its kind in over 30 years.
Archival: Tonight, with the news of a tentative bipartisan Senate agreement on what would be the biggest new federal gun legislation in decades, the [00:38:30] package is narrow and short of what President Biden and many Democrats want.
Nick Capodice: And to be clear, yes, as of June 14th, no bill has been proposed in the legislation drafted, but ten senators from both parties have worked on it. Now, Jake said there are certain regulations that his students on both sides of the debate agree upon. Specifically red flag laws. Those are laws that allow the police, family members or coworkers to petition the state court to disarm [00:39:00] someone they believe is a danger to themselves or others. And finally, Saul said, We're not going to get anywhere if we don't talk about it.
Saul Cornell: So any reasonable approach to the problem of gun violence in America, because it is a uniquely American problem, at least in the industrial democracies of the world, has to both recognize that gun ownership, private gun ownership, is a deeply rooted tradition in value in American [00:39:30] life, but so is gun regulation. So the logical and reasonable argument we should be having is, are there any things we could be doing that would reduce the toll and horror of gun violence, that doesn't impose an unreasonable cost on those people who want to have guns? And is it possible to formulate policies that make it more difficult for people? We don't want to have guns to have [00:40:00] them that again, only minimally burden those who want to have guns. That would be a calm, thoughtful, productive discussion, which we never have had as a country in my lifetime. And which would be nice to have.
Nick Capodice: This [00:40:30] episode was written and produced by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton, Christina Phillips as her senior producer, and Rebecca Lavoie our executive producer. Music In this episode by Frances Wells, Peter Sandberg Auto Hacker Apollo [00:41:00] Site of wonders, dam of Beats Peerless Golden Age Radio Major tweaks Fabian tell pictures of a floating world. I love using that song, Cooper Cannell, Blue Dot Sessions, Those Tried and True Warhorses, and the Man. The Myth. The Legend. Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio. All right.
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Is the leaked Supreme Court draft opinion a roadmap for how this court could overturn landmark cases in the future?
A leaked draft opinion in a Supreme Court case about abortion reveals that a majority of the justices were, at the time of this draft's release, in favor of overturning the precedent set in Roe v Wade that protected abortion access.
In our recent episode on judicial precedent, we talked about how the Supreme Court interprets the law, and how precedent gives that interpretation power, ensuring the law is applied equally to everyone. We also talked about how and why the Supreme Court might reconsider, modify, or overturn its own precedent. In this episode, we look at how the draft opinion treats precedent, and how that differs from the way the Supreme Court has treated precedent in the past, including in decisions about abortion. And we talk about the impact this could have, should this draft opinion become final, both on the Supreme Court, and on society.
We talk to Nina Varsava, a law professor at University of Wisconsin, Madison who studies judicial precedent, and wrote the article, "Precedent on Precedent," and Rachel Rebouche, a law professor at Temple University who specializes in family law, health care law, and comparative family law, and has written about the potential impact of overturning Roe v Wade.
Precedent and the Leaked Draft SCOTUS Opinion: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.
Hannah McCarthy:
Hey, everybody, it's about to be really apparent, but I am tracking this with a bad cold. Life happens.
Hannah McCarthy:
The Supreme Court is an institution, an institution with over 230 years of weighty decision making.
Hannah McCarthy:
Now, many of these decisions happen without the majority of people in the United States paying much attention. But every once in a while, you get a landmark.
Hannah McCarthy:
A decision that fundamentally alters lived experience. That has widespread legal implications. That throws the nation into heated debate or celebration.
Hannah McCarthy:
It's decisions like these that people either come to depend on or commit their lives to working against. But come on. The Supreme Court changing its mind.
News Audio:
According to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by Politico. The Supreme Court has voted to strike down the landmark Roe versus Wade decision.
Hannah McCarthy:
What are the chances of that? This is Civics 101. I'm Hannah McCarthy.
Nick Capodice:
I'm Nick Capodice.
Hannah McCarthy:
And today we are talking about the leak that shook the nation. A draft opinion from the Supreme Court authored by Justice Samuel Alito, arguing that Roe v Wade should be overturned, arguing that it was the wrong decision to make in the first place, that the federally protected right to abortion as a part of a right to privacy, the precedent established by Roe v Wade should not exist.
Hannah McCarthy:
Right now, and we're tracking this on June 7th, 2022. That opinion is not official. However, it marks an historic moment in how the Supreme Court is treating its own landmark precedent. And no matter the outcome, this draft is a snapshot of how our current Supreme Court is evaluating the merits of its own past precedent in one of the most controversial and significant landmark decisions in recent history.
Hannah McCarthy:
In our episode on judicial precedent, we talked about how the Supreme Court rarely overturns or reverses its own precedent. We also talked about how the precedent set in Roe v Wade was modified in 1992. Today we are talking about how the draft opinion in Dobbs V Jackson Women's Health Organization looks different and what that draft opinion should it be adopted could mean for our country and for judicial precedent itself.
Nick Capodice:
All right, Hanna, let's unpack the case at the center of this leak.
Hannah McCarthy:
The case which we will refer to in this episode as Dobbs, started in 2018 when Mississippi passed a law that banned abortion after 15 weeks, except in cases of medical emergencies or severe fetal anomaly. And the state's only abortion clinic, Jackson Women's Health Organization, sued the state's health department, naming the state health officer Thomas Dobbs. They said that the new law violated the precedent set by Roe v Wade and upheld by Planned Parenthood v Casey, the 1992 case that modified Roe v Wade but said that states could not outright ban abortion.
Rachel Rebouche:
One of the things that most people interpreted Casey to provide is that states can do a lot to regulate abortion well before viability, that they can't ban it. And that's what Mississippi did.
Hannah McCarthy:
This is Rachel Rebouche. She's a law professor at Temple University, where she focuses on reproductive health, including abortion law.
Rachel Rebouche:
Mississippi passed a law that said if passed 15 weeks, no, no legal abortion in the state, that's well before viability. And the fact that the court took the case in the first place suggested to most people that the court was either going to overturn Roe or announce a new test, because it's not as if it wasn't clear that Casey had stood for the proposition that you can't ban abortion before viability.
Hannah McCarthy:
The district court, which is bound by the precedent set by the Supreme Court, agreed with Jackson women's health and said, yes, this law does violate the rule. So Mississippi, that's the Dobbs side appealed in circuit court and the circuit court upheld the district court ruling. It said, yes, this law cannot stand.
Nick Capodice:
So if the Supreme Court did not take up this case, then that law would not have been able to take effect in Mississippi.
Hannah McCarthy:
Correct.
News Audio:
Significant breaking news just into us. The Supreme Court has agreed to take up a major abortion case next term concerning a controversial Mississippi law that bans most abortions after 15 weeks.
Nick Capodice:
Now, the Supreme Court is famously choosy about what cases it takes. It gets thousands of requests a year, and it has to decide which 60 to 80 or so are of national importance.
Hannah McCarthy:
Right. And it's important to note that in the Casey decision in 1992, the Supreme Court thought that maintaining a precedent was important, but that the use of a trimester system to determine when a state could impose restrictions was outdated. So they updated the rule states had to follow to impose restrictions. This rule was that states could not impose a, quote, undue burden on abortion access, but it gave states a lot more leeway to pass restrictions than the original trimester rule in Roe v Wade.
Nick Capodice:
And in our recent episode on precedent, we talked about the reasons why the Supreme Court might reconsider or overturn precedent.
Hannah McCarthy:
And this is known as a stari decisis analysis. Stare decisis is the doctrine of following precedent. So a stare decisis analysis helps the court decide if a precedent should still stand. Basically, is this precedent working? And an analysis typically involves several factors. So let's go through them. Was the law unworkable, meaning it isn't practical or feasible in practice?
Nick Capodice:
And another was if the law was an outlier like it didn't fit with other precedents in similar cases.
Hannah McCarthy:
And third, are there what are called reliance interests.
Nick Capodice:
And that's how much the law, and society and people have come to rely on that precedent.
Hannah McCarthy:
Right. The court needs to consider the impact changing a precedent might have on making sure the law is applied consistently over time. And the last one is, was the reasoning in the case bad or have the facts changed?
Nick Capodice:
So in Planned Parenthood v Casey, how did the Supreme Court address these factors?
Hannah McCarthy:
Here's Justice David Souter, one of the justices who authored the majority opinion, talking about how these factors applied in Casey.
Justice David Souter:
Despite the controversy it has produced, the decision has not proven unworkable in practice, is undoubtedly engendered reliance in countless people who have organized intimate relationships and made choices that define their views of themselves and their places in society. In the two decades since it was handed down. It has not been rendered doctrinally anachronistic. By other legal developments in the past 20 years, and the factual premises on which it rests are no different today from those on which the ruling rested initially.
Nick Capodice:
So it's not unworkable. People are relying on it, and there hasn't been a significant enough shift in the law in 20 years to suggest this decision was an outlier.
Hannah McCarthy:
And furthermore, the decision in case he was really clear about how important it was to not overturn the precedent in Roe when it came to the legitimacy of the Supreme Court, it put a lot of weight on the doctrine of stare decisis. Here is Justice Sandra Day O'Connor, another author of the majority opinion.
Justice Sandra Day O'Connor:
We conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality, but that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court and the role of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it.
Nick Capodice:
Basically, it's really important to maintain our credibility and not be seen as a court that would prioritize personal feelings over the law.
Hannah McCarthy:
And it's worth noting that this was not a unanimous verdict. The court in 1992 was really divided over this, but the Court ultimately reaffirmed the decision in Roe.
Nick Capodice:
So when the Supreme Court of 2022 took up. Dobbs This is also something they could have done. They could have modified the precedent again without overturning it.
Rachel Rebouche:
In fact, a number of people thought that's what this case would do, that the Supreme Court could essentially gut Roe, ditch the test at establishing Casey, and announce a new test that's much easier for the states to meet in upholding state legislation but not overturn Roe.
Hannah McCarthy:
This has been called a rational review.
Rachel Rebouche:
We're going to strike down state restrictions that aren't rational. That's a really easy test for states to meet. Case law has been interpreted as if you could just pass the laugh out loud, test that your carry law is going to be upheld. But, you know, Roe is still good law. There's still a constitutional right to abortion. It's just that viability is and unworkable line. And this is the new test for states to pass.
Hannah McCarthy:
The draft opinion written by Justice Alito could have suggested that the Supreme Court was going to make it even easier for states to restrict abortion without completely overturning Roe.
Rachel Rebouche:
That's not what Justice Alito wrote.
Nick Capodice:
And we're going to get into what Justice Alito wrote right after this.
Nick Capodice:
We're back and we are talking about the leaked Supreme Court draft opinion in Dobbs v Jackson authored by Justice Samuel Alito.
Hannah McCarthy:
In this draft opinion, Justice Alito says that Roe v Wade was bad precedent.
Rachel Rebouche:
He clearly returned abortion back to the states.
Hannah McCarthy:
This is Rachel Rebouche.
Rachel Rebouche:
And not as a matter of constitutional protection.
Nina Varsava:
Also, something that might be less explicit or getting less attention about the draft opinion is that it also overrules Casey on stare decisis itself.
Hannah McCarthy:
This is Nina Varsava. She's a law professor at the University of Wisconsin, Madison, and she studies judicial precedent.
Nina Varsava:
I do think that this case could represent a significant shift in how the court deals with stare decisis.
Nick Capodice:
What does she mean when she says that the draft opinion overrules Casey on stare decisis itself?
Hannah McCarthy:
Basically, Alito's draft opinion is saying that Roe was wrong in the first place, that abortion should never have been a protected right, and that the way that Casey determined that Roe should be upheld was also wrong.
Nina Varsava:
Let me just quote from him. So he says that Roe's constitutional analysis was "far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed." So he's saying basically that on his view, this decision was so wrong that it was egregious and that this should be weighed heavily in a stare decisis analysis.
Hannah McCarthy:
Nina says that the draft opinion focuses a lot on the factor of reasoning, of whether the original decision was an error.
Nina Varsava:
In the current draft opinion. They seem relatively untethered in the sense that it seems that the question is whether the current justices agree with the past case or not. And precedent is meant to put a block on that kind of decision making, to put some kind of meaningful barrier in place that even if a court does disagree on the merits with the past decision, it's still supposed to follow it. So it will be interesting to see whether those factors remain and how the court deals with them going forward.
Nick Capodice:
It does make me wonder if putting a lot of emphasis on reasoning in this case that could serve as a new precedent itself, where the court finds it easier and easier to question the reasoning of previous decisions. But what about something like Reliance Interests, which is how much society depends on access to abortion? Does the draft opinion say anything about that?
Nina Varsava:
So in Casey, the court reason that people were relying on Roe and that the reliance was important and widespread, a kind of societal reliance. In the draft Dobbs opinion, Alito says that the reliance interest at stake here, to the extent that there are any, are intangible and abstract, and that those kinds of interests do not count for anything in a stare decisis analysis. So this is very different from Casey. And different, I think, from an intuitive understanding of reliance interests.
Nina Varsava:
Women planning their lives based on the belief that abortion would be available to them should they need it or society. Structuring itself based on that idea, women planning their educations and their careers with the assurance that they would be able to access abortion. Those are all, I think, intuitive reliance interests, but they're not relevant or not legitimate in a story decisis analysis according to the draft opinion. So that's another big shift from Casey.
Nick Capodice:
What precedent is this opinion working off of since, as Nina said, it seems like a shift?
Nina Varsava:
I should note that the shift actually began even before. Dobbs But in a more subtle way.
Hannah McCarthy:
Nina noticed that this draft opinion looks a whole lot like an opinion from a different Supreme Court case that she wrote about in 2020. This is a case called Ramos v Louisiana that was about whether the Sixth Amendment applied to states, in essence, whether a state had to abide by the rule that a person could only be convicted of a serious crime by a unanimous jury. And the Supreme Court reached a majority opinion saying that, yes, this Sixth Amendment rule applied to states, including Louisiana. Within that case, the justices spent a lot of time debating how precedent should work, and there were several concurring opinions.
Nick Capodice:
And quickly, concurring opinions are when a justice agrees with the final decision, but disagrees with parts of the decision or the rationale behind it.
Hannah McCarthy:
And a lot of times these concurring opinions give you a context for how the justices are feeling.
Nina Varsava:
Something that stood out to me about that decision is that Justice Kavanaugh issued a concurrence in which he laid out a set of factors in an effort to articulate a framework or roadmap to guide overruling.
Hannah McCarthy:
Basically, Justice Kavanaugh's concurring opinion talked a lot about those factors the Supreme Court has traditionally used to reconsider precedent and laid out a different way that they could do it. And Nina, who studies judicial precedent, wrote a paper about this case.
Nina Varsava:
So in my paper about that Ramos decision, I highlighted Kavanaugh's opinion and suggested that it seemed as though he was attempting to lay the groundwork for future overruling.
Hannah McCarthy:
And then two years later, the draft opinion in Dobbs comes out.
Nina Varsava:
And in the draft Dobbs opinion, Justice Alito takes his framework largely from that Kavanaugh concurrence. So he cites it five times and lists about 30 cases. That is almost the exact same list as a list of cases that Kavanaugh included in that concurrence. It's a list of celebrated cases that had overruled previous decisions. I see this as an attempt to make this overruling seem more palatable to say, Look, we've done this a lot of times, and that people have have actually celebrated these over rulings.
Nina Varsava:
But I was still surprised to see how much space and attention that concurrence got in the draft Dobbs Opinion. How well it worked, basically because it wasn't even a majority opinion. It was just one justice going out on his own to articulate a roadmap for overruling. And Alito really seizes on this and takes advantage of it to articulate this new set of stare decisis factors in DOBBS.
Hannah McCarthy:
Basically, in this draft opinion, Justice Alito is making an argument about precedent, something the Supreme Court takes very seriously. And the rationale for that argument looks a lot like the rationale laid out by a sitting Supreme Court justice in a concurring opinion from a recent case.
Nina Varsava:
So here in the context of Dobbs, it looks as though as soon as the court's composition changed so that we have a majority of ideologically conservative justices, then they move to overturn one of the most politically and morally charged decisions in recent history, maybe ever. So that looks to some people as though the court is doing politics or the justices are acting on personal morality and ideology rather than applying the law. And so a lot of people are reasonably concerned that the court's legitimacy in the eyes of the public will suffer if the court now proceeds to overrule Roe and Casey.
Nick Capodice:
And for as far as what this means for abortion access on a societal level, do we have a sense of what might happen if this draft opinion stands?
Hannah McCarthy:
There are currently 26 states that have drafted legislation that would ban abortion under certain circumstances should Roe v Wade and subsequently Planned Parenthood v Casey be overturned. These laws are known as trigger bans. Essentially, the state laws are triggered to go into effect as soon as federal law allows it.
Rachel Rebouche:
If Justice Alito's draft becomes law, those 26 states will ban most or almost all abortion within their borders.
News Audio:
In Alabama, lawmakers passed a near-total ban on abortions in Kentucky and Florida. Bills have been signed banning abortions after 15 weeks.
Rachel Rebouche:
Some will do so with very few exceptions of any maybe for a medical emergency.
News Audio:
If the ruling is final. 30 days later, Tennessee's trigger ban would outlaw abortions, with just one exception if the patient's life is in danger.
Rachel Rebouche:
Some will ban with exceptions for sexual assault or severe fetal anomaly. But half the country will criminalize or severely punished or both.
News Audio:
A new amendment in the state of Missouri is trying to stop women from crossing state lines to access abortion services.
Rachel Rebouche:
The other half the country will have states like California and Connecticut that are legislating to protect abortion rights.
News Audio:
New York poised to become a safe haven for women seeking abortions once the Supreme Court reverses Roe v Wade. Abortion is protected by state law as part of the Reproductive Health Act.
Rachel Rebouche:
They are legislating to protect their providers in the state and the patients who travel to those states from states that now ban abortion. But then there is a whole host of states that may not rush to ban abortion. They're not going to criminalize it, but they're not necessarily going to repeal the laws that they have on the books. It'll be it'll be a pretty complicated legal landscape.
Hannah McCarthy:
Rachel also says that a lot of legal scholars think that overturning Roe and leaving abortion access up to the states will lead to a lot of complications.
Rachel Rebouche:
Returning abortion to the states is going to be anything but workable. It is going to be a landscape that, as we've discussed, is very is dramatically complex. But it will also incite interstate conflict. And depending on who is president, it will also spark intra jurisdictional conflicts between states and the federal government. Some states are going to not just try to ban abortion in their borders, but they might try to ban it outside their borders. Some states are going to try to protect people who are coming into their states from out of state, and they're going to shield their providers from other actions that would be taken against them from across the country. We're going to see some novel stuff. And and so I guess I would just leave it at that.
Hannah McCarthy:
And it's not just the legal landscape. It's the social landscape.
Nina Varsava:
If Roe is overruled, then we'll have some women who could rely on access to abortion for their whole reproductive lives, whereas some won't be able to access abortion and won't have that reassurance that they could access it if they need to. Many people have organized their lives based on the expectation that abortion would be available to them if they needed to access it. And overruling Roe in case it will will upset those expectations will require people to re conceive their lives and their futures.
Nick Capodice:
I want to know about other 14th Amendment protections, because we've talked about how Roe was built on precedent that came before it, like marriage rights, rights for incarcerated people, access to contraception. If Roe is undone, what does that mean for all the precedent that came before it?
Rachel Rebouche:
You know, I'm not sure. I mean, I think that this is certainly profound for the 14th, the interpretation of the 14th Amendment, the kind of originalism that's at the heart of Justice Alito's opinion. If five justices are willing to sign on to that originalism for this, it could suggest that they are persuaded by originalists and textualist arguments for other things, which is, as again, is, is creates a test, creates a standard for thinking about what the Constitution protects. That might be a little more narrow than other approaches.
Nick Capodice:
And whether or not this draft opinion stands. It has given the American people a window into the process of the Supreme Court revisiting its own decisions. Today's episode was written and produced by Christina Phillips with help from Hannah McCarthy. Our staff includes Jacqui Fulton, and Rebecca Lavoie is our executive producer. Music In this episode by David Celeste Ketsa, Marten Moses, Xylo-Ziko, Brandon Moeller, Blue Dot Sessions and Cospe. Civics 101 is a production of NHPR. New Hampshire Public Radio.
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Hannah McCarthy: [00:01:42] Hey, everybody, it's about to be really apparent, but I am tracking this with a bad cold. Life happens.
Hannah McCarthy: [00:01:52] The Supreme Court is an institution, an institution with over 230 years of weighty decision making.
Hannah McCarthy: [00:02:05] Now, many of these decisions happen without the majority of people in the United States paying much attention. But every once in a while, you get a landmark.
Hannah McCarthy: [00:02:23] A decision that fundamentally alters lived experience. That has widespread legal implications. That throws the nation into heated debate or celebration.
Hannah McCarthy: [00:02:42] It's decisions like these that people either come to depend on or commit their lives to working against. But come on. The Supreme Court changing its mind.
News Audio: [00:02:52] According to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by Politico. The Supreme Court has voted to strike down the landmark Roe versus Wade decision.
Hannah McCarthy: [00:03:05] What are the chances of that? This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:03:11] I'm Nick Capodice.
Hannah McCarthy: [00:03:12] And today we are talking about the leak that shook the nation. A draft opinion from the Supreme Court authored by Justice Samuel Alito, arguing that Roe v Wade should be overturned, arguing that it was the wrong decision to make in the first place, that the federally protected right to abortion as a part of a right to privacy, the precedent established by Roe v Wade should not exist.
Hannah McCarthy: [00:03:41] Right now, and we're tracking this on June 7th, 2022. That opinion is not official. However, it marks an historic moment in how the Supreme Court is treating its own landmark precedent. And no matter the outcome, this draft is a snapshot of how our current Supreme Court is evaluating the merits of its own past precedent in one of the most controversial and significant landmark decisions in recent history.
Hannah McCarthy: [00:04:06] In our episode on judicial precedent, we talked about how the Supreme Court rarely overturns or reverses its own precedent. We also talked about how the precedent set in Roe v Wade was modified in 1992. Today we are talking about how the draft opinion in Dobbs V Jackson Women's Health Organization looks different and what that draft opinion should it be adopted could mean for our country and for judicial precedent itself.
Nick Capodice: [00:04:31] All right, Hanna, let's unpack the case at the center of this leak.
Hannah McCarthy: [00:04:34] The case which we will refer to in this episode as Dobbs, started in 2018 when Mississippi passed a law that banned abortion after 15 weeks, except in cases of medical emergencies or severe fetal anomaly. And the state's only abortion clinic, Jackson Women's Health Organization, sued the state's health department, naming the state health officer Thomas Dobbs. They said that the new law violated the precedent set by Roe v Wade and upheld by Planned Parenthood v Casey, the 1992 case that modified Roe v Wade but said that states could not outright ban abortion.
Rachel Rebouche: [00:05:10] One of the things that most people interpreted Casey to provide is that states can do a lot to regulate abortion well before viability, that they can't ban it. And that's what Mississippi did.
Hannah McCarthy: [00:05:22] This is Rachel Rebouche. She's a law professor at Temple University, where she focuses on reproductive health, including abortion law.
Rachel Rebouche: [00:05:29] Mississippi passed a law that said if passed 15 weeks, no, no legal abortion in the state, that's well before viability. And the fact that the court took the case in the first place suggested to most people that the court was either going to overturn Roe or announce a new test, because it's not as if it wasn't clear that Casey had stood for the proposition that you can't ban abortion before viability.
Hannah McCarthy: [00:05:52] The district court, which is bound by the precedent set by the Supreme Court, agreed with Jackson women's health and said, yes, this law does violate the rule. So Mississippi, that's the Dobbs side appealed in circuit court and the circuit court upheld the district court ruling. It said, yes, this law cannot stand.
Nick Capodice: [00:06:12] So if the Supreme Court did not take up this case, then that law would not have been able to take effect in Mississippi.
Hannah McCarthy: [00:06:18] Correct.
News Audio: [00:06:19] Significant breaking news just into us. The Supreme Court has agreed to take up a major abortion case next term concerning a controversial Mississippi law that bans most abortions after 15 weeks.
Nick Capodice: [00:06:31] Now, the Supreme Court is famously choosy about what cases it takes. It gets thousands of requests a year, and it has to decide which 60 to 80 or so are of national importance.
Hannah McCarthy: [00:06:43] Right. And it's important to note that in the Casey decision in 1992, the Supreme Court thought that maintaining a precedent was important, but that the use of a trimester system to determine when a state could impose restrictions was outdated. So they updated the rule states had to follow to impose restrictions. This rule was that states could not impose a, quote, undue burden on abortion access, but it gave states a lot more leeway to pass restrictions than the original trimester rule in Roe v Wade.
Nick Capodice: [00:07:14] And in our recent episode on precedent, we talked about the reasons why the Supreme Court might reconsider or overturn precedent.
Hannah McCarthy: [00:07:22] And this is known as a stari decisis analysis. Stare decisis is the doctrine of following precedent. So a stare decisis analysis helps the court decide if a precedent should still stand. Basically, is this precedent working? And an analysis typically involves several factors. So let's go through them. Was the law unworkable, meaning it isn't practical or feasible in practice?
Nick Capodice: [00:07:48] And another was if the law was an outlier like it didn't fit with other precedents in similar cases.
Hannah McCarthy: [00:07:54] And third, are there what are called reliance interests.
Nick Capodice: [00:07:58] And that's how much the law, and society and people have come to rely on that precedent.
Hannah McCarthy: [00:08:04] Right. The court needs to consider the impact changing a precedent might have on making sure the law is applied consistently over time. And the last one is, was the reasoning in the case bad or have the facts changed?
Nick Capodice: [00:08:18] So in Planned Parenthood v Casey, how did the Supreme Court address these factors?
Hannah McCarthy: [00:08:24] Here's Justice David Souter, one of the justices who authored the majority opinion, talking about how these factors applied in Casey.
Justice David Souter: [00:08:31] Despite the controversy it has produced, the decision has not proven unworkable in practice, is undoubtedly engendered reliance in countless people who have organized intimate relationships and made choices that define their views of themselves and their places in society. In the two decades since it was handed down. It has not been rendered doctrinally anachronistic. By other legal developments in the past 20 years, and the factual premises on which it rests are no different today from those on which the ruling rested initially.
Nick Capodice: [00:09:01] So it's not unworkable. People are relying on it, and there hasn't been a significant enough shift in the law in 20 years to suggest this decision was an outlier.
Hannah McCarthy: [00:09:12] And furthermore, the decision in case he was really clear about how important it was to not overturn the precedent in Roe when it came to the legitimacy of the Supreme Court, it put a lot of weight on the doctrine of stare decisis. Here is Justice Sandra Day O'Connor, another author of the majority opinion.
Justice Sandra Day O'Connor: [00:09:30] We conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality, but that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court and the role of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it.
Nick Capodice: [00:10:12] Basically, it's really important to maintain our credibility and not be seen as a court that would prioritize personal feelings over the law.
Hannah McCarthy: [00:10:21] And it's worth noting that this was not a unanimous verdict. The court in 1992 was really divided over this, but the Court ultimately reaffirmed the decision in Roe.
Nick Capodice: [00:10:32] So when the Supreme Court of 2022 took up. Dobbs This is also something they could have done. They could have modified the precedent again without overturning it.
Rachel Rebouche: [00:10:41] In fact, a number of people thought that's what this case would do, that the Supreme Court could essentially gut Roe, ditch the test at establishing Casey, and announce a new test that's much easier for the states to meet in upholding state legislation but not overturn Roe.
Hannah McCarthy: [00:10:59] This has been called a rational review.
Rachel Rebouche: [00:11:02] We're going to strike down state restrictions that aren't rational. That's a really easy test for states to meet. Case law has been interpreted as if you could just pass the laugh out loud, test that your carry law is going to be upheld. But, you know, Roe is still good law. There's still a constitutional right to abortion. It's just that viability is and unworkable line. And this is the new test for states to pass.
Hannah McCarthy: [00:11:29] The draft opinion written by Justice Alito could have suggested that the Supreme Court was going to make it even easier for states to restrict abortion without completely overturning Roe.
Rachel Rebouche: [00:11:39] That's not what Justice Alito wrote.
Nick Capodice: [00:11:41] And we're going to get into what Justice Alito wrote right after this.
Nick Capodice: [00:12:08] We're back and we are talking about the leaked Supreme Court draft opinion in Dobbs v Jackson authored by Justice Samuel Alito.
Hannah McCarthy: [00:12:17] In this draft opinion, Justice Alito says that Roe v Wade was bad precedent.
Rachel Rebouche: [00:12:22] He clearly returned abortion back to the states.
Hannah McCarthy: [00:12:26] This is Rachel Rebouche.
Rachel Rebouche: [00:12:27] And not as a matter of constitutional protection.
Nina Varsava: [00:12:31] Also, something that might be less explicit or getting less attention about the draft opinion is that it also overrules Casey on stare decisis itself.
Hannah McCarthy: [00:12:42] This is Nina Varsava. She's a law professor at the University of Wisconsin, Madison, and she studies judicial precedent.
Nina Varsava: [00:12:49] I do think that this case could represent a significant shift in how the court deals with stare decisis.
Nick Capodice: [00:12:58] What does she mean when she says that the draft opinion overrules Casey on stare decisis itself?
Hannah McCarthy: [00:13:04] Basically, Alito's draft opinion is saying that Roe was wrong in the first place, that abortion should never have been a protected right, and that the way that Casey determined that Roe should be upheld was also wrong.
Nina Varsava: [00:13:20] Let me just quote from him. So he says that Roe's constitutional analysis was "far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed." So he's saying basically that on his view, this decision was so wrong that it was egregious and that this should be weighed heavily in a stare decisis analysis.
Hannah McCarthy: [00:13:45] Nina says that the draft opinion focuses a lot on the factor of reasoning, of whether the original decision was an error.
Nina Varsava: [00:13:52] In the current draft opinion. They seem relatively untethered in the sense that it seems that the question is whether the current justices agree with the past case or not. And precedent is meant to put a block on that kind of decision making, to put some kind of meaningful barrier in place that even if a court does disagree on the merits with the past decision, it's still supposed to follow it. So it will be interesting to see whether those factors remain and how the court deals with them going forward.
Nick Capodice: [00:14:29] It does make me wonder if putting a lot of emphasis on reasoning in this case that could serve as a new precedent itself, where the court finds it easier and easier to question the reasoning of previous decisions. But what about something like Reliance Interests, which is how much society depends on access to abortion? Does the draft opinion say anything about that?
Nina Varsava: [00:14:51] So in Casey, the court reason that people were relying on Roe and that the reliance was important and widespread, a kind of societal reliance. In the draft Dobbs opinion, Alito says that the reliance interest at stake here, to the extent that there are any, are intangible and abstract, and that those kinds of interests do not count for anything in a stare decisis analysis. So this is very different from Casey. And different, I think, from an intuitive understanding of reliance interests.
Nina Varsava: [00:15:23] Women planning their lives based on the belief that abortion would be available to them should they need it or society. Structuring itself based on that idea, women planning their educations and their careers with the assurance that they would be able to access abortion. Those are all, I think, intuitive reliance interests, but they're not relevant or not legitimate in a story decisis analysis according to the draft opinion. So that's another big shift from Casey.
Nick Capodice: [00:15:58] What precedent is this opinion working off of since, as Nina said, it seems like a shift?
Nina Varsava: [00:16:04] I should note that the shift actually began even before. Dobbs But in a more subtle way.
Hannah McCarthy: [00:16:10] Nina noticed that this draft opinion looks a whole lot like an opinion from a different Supreme Court case that she wrote about in 2020. This is a case called Ramos v Louisiana that was about whether the Sixth Amendment applied to states, in essence, whether a state had to abide by the rule that a person could only be convicted of a serious crime by a unanimous jury. And the Supreme Court reached a majority opinion saying that, yes, this Sixth Amendment rule applied to states, including Louisiana. Within that case, the justices spent a lot of time debating how precedent should work, and there were several concurring opinions.
Nick Capodice: [00:16:48] And quickly, concurring opinions are when a justice agrees with the final decision, but disagrees with parts of the decision or the rationale behind it.
Hannah McCarthy: [00:16:56] And a lot of times these concurring opinions give you a context for how the justices are feeling.
Nina Varsava: [00:17:01] Something that stood out to me about that decision is that Justice Kavanaugh issued a concurrence in which he laid out a set of factors in an effort to articulate a framework or roadmap to guide overruling.
Hannah McCarthy: [00:17:16] Basically, Justice Kavanaugh's concurring opinion talked a lot about those factors the Supreme Court has traditionally used to reconsider precedent and laid out a different way that they could do it. And Nina, who studies judicial precedent, wrote a paper about this case.
Nina Varsava: [00:17:32] So in my paper about that Ramos decision, I highlighted Kavanaugh's opinion and suggested that it seemed as though he was attempting to lay the groundwork for future overruling.
Hannah McCarthy: [00:17:43] And then two years later, the draft opinion in Dobbs comes out.
Nina Varsava: [00:17:47] And in the draft Dobbs opinion, Justice Alito takes his framework largely from that Kavanaugh concurrence. So he cites it five times and lists about 30 cases. That is almost the exact same list as a list of cases that Kavanaugh included in that concurrence. It's a list of celebrated cases that had overruled previous decisions. I see this as an attempt to make this overruling seem more palatable to say, Look, we've done this a lot of times, and that people have have actually celebrated these over rulings.
Nina Varsava: [00:18:22] But I was still surprised to see how much space and attention that concurrence got in the draft Dobbs Opinion. How well it worked, basically because it wasn't even a majority opinion. It was just one justice going out on his own to articulate a roadmap for overruling. And Alito really seizes on this and takes advantage of it to articulate this new set of stare decisis factors in DOBBS.
Hannah McCarthy: [00:18:55] Basically, in this draft opinion, Justice Alito is making an argument about precedent, something the Supreme Court takes very seriously. And the rationale for that argument looks a lot like the rationale laid out by a sitting Supreme Court justice in a concurring opinion from a recent case.
Nina Varsava: [00:19:13] So here in the context of Dobbs, it looks as though as soon as the court's composition changed so that we have a majority of ideologically conservative justices, then they move to overturn one of the most politically and morally charged decisions in recent history, maybe ever. So that looks to some people as though the court is doing politics or the justices are acting on personal morality and ideology rather than applying the law. And so a lot of people are reasonably concerned that the court's legitimacy in the eyes of the public will suffer if the court now proceeds to overrule Roe and Casey.
Nick Capodice: [00:19:51] And for as far as what this means for abortion access on a societal level, do we have a sense of what might happen if this draft opinion stands?
Hannah McCarthy: [00:20:03] There are currently 26 states that have drafted legislation that would ban abortion under certain circumstances should Roe v Wade and subsequently Planned Parenthood v Casey be overturned. These laws are known as trigger bans. Essentially, the state laws are triggered to go into effect as soon as federal law allows it.
Rachel Rebouche: [00:20:24] If Justice Alito's draft becomes law, those 26 states will ban most or almost all abortion within their borders.
News Audio: [00:20:32] In Alabama, lawmakers passed a near-total ban on abortions in Kentucky and Florida. Bills have been signed banning abortions after 15 weeks.
Rachel Rebouche: [00:20:41] Some will do so with very few exceptions of any maybe for a medical emergency.
News Audio: [00:20:47] If the ruling is final. 30 days later, Tennessee's trigger ban would outlaw abortions, with just one exception if the patient's life is in danger.
Rachel Rebouche: [00:20:56] Some will ban with exceptions for sexual assault or severe fetal anomaly. But half the country will criminalize or severely punished or both.
News Audio: [00:21:08] A new amendment in the state of Missouri is trying to stop women from crossing state lines to access abortion services.
Rachel Rebouche: [00:21:14] The other half the country will have states like California and Connecticut that are legislating to protect abortion rights.
News Audio: [00:21:21] New York poised to become a safe haven for women seeking abortions once the Supreme Court reverses Roe v Wade. Abortion is protected by state law as part of the Reproductive Health Act.
Rachel Rebouche: [00:21:32] They are legislating to protect their providers in the state and the patients who travel to those states from states that now ban abortion. But then there is a whole host of states that may not rush to ban abortion. They're not going to criminalize it, but they're not necessarily going to repeal the laws that they have on the books. It'll be it'll be a pretty complicated legal landscape.
Hannah McCarthy: [00:21:54] Rachel also says that a lot of legal scholars think that overturning Roe and leaving abortion access up to the states will lead to a lot of complications.
Rachel Rebouche: [00:22:03] Returning abortion to the states is going to be anything but workable. It is going to be a landscape that, as we've discussed, is very is dramatically complex. But it will also incite interstate conflict. And depending on who is president, it will also spark intra jurisdictional conflicts between states and the federal government. Some states are going to not just try to ban abortion in their borders, but they might try to ban it outside their borders. Some states are going to try to protect people who are coming into their states from out of state, and they're going to shield their providers from other actions that would be taken against them from across the country. We're going to see some novel stuff. And and so I guess I would just leave it at that.
Hannah McCarthy: [00:23:00] And it's not just the legal landscape. It's the social landscape.
Nina Varsava: [00:23:04] If Roe is overruled, then we'll have some women who could rely on access to abortion for their whole reproductive lives, whereas some won't be able to access abortion and won't have that reassurance that they could access it if they need to. Many people have organized their lives based on the expectation that abortion would be available to them if they needed to access it. And overruling Roe in case it will will upset those expectations will require people to re conceive their lives and their futures.
Nick Capodice: [00:23:36] I want to know about other 14th Amendment protections, because we've talked about how Roe was built on precedent that came before it, like marriage rights, rights for incarcerated people, access to contraception. If Roe is undone, what does that mean for all the precedent that came before it?
Rachel Rebouche: [00:23:55] You know, I'm not sure. I mean, I think that this is certainly profound for the 14th, the interpretation of the 14th Amendment, the kind of originalism that's at the heart of Justice Alito's opinion. If five justices are willing to sign on to that originalism for this, it could suggest that they are persuaded by originalists and textualist arguments for other things, which is, as again, is, is creates a test, creates a standard for thinking about what the Constitution protects. That might be a little more narrow than other approaches.
Nick Capodice: [00:24:41] And whether or not this draft opinion stands. It has given the American people a window into the process of the Supreme Court revisiting its own decisions. Today's episode was written and produced by Christina Phillips with help from Hannah McCarthy. Our staff includes Jacqui Fulton, and Rebecca Lavoie is our executive producer. Music In this episode by David Celeste Ketsa, Marten Moses, Xylo-Ziko, Brandon Moeller, Blue Dot Sessions and Cospe. Civics 101 is a production of NHPR. New Hampshire Public Radio.
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When the Supreme Court decides how the law, and the Constitution, should be interpreted, that interpretation becomes a precedent. Once that judicial precedent has been set, it's understood that the interpretation and its reasoning should be applied to similar cases in the future. So why might the Supreme Court reconsider its own precedent? And what happens when a precedent is modified, or overruled?
We talk to Nina Varsava, a law professor at University of Wisconsin, Madison who studies judicial precedent, and wrote the article, "Precedent on Precedent," and Rachel Rebouche, a law professor at Temple University who specializes in family law, health care law, and comparative family law, and has written about the potential impact of overturning Roe v Wade.
Nick Capodice: You have to be careful with the word precedent. Hannah It starts to turn. What's the word for that thing? When you say it over and over and over again, it doesn't mean sense anymore. You're like, precedent, precedent, precedent.
Hannah McCarthy: I don't know the word for that thing, but I know what you're talking about. But that's not why you got to be careful with the word precedent.
Nick Capodice: No, no.
Hannah McCarthy: You got to be careful with the word precedent because of the word precedents. And presidents.
Nick Capodice: Presidents Day dead.
Hannah McCarthy: Presidents dead. Precedent.
Nina Varsava: Mr. Speaker.
Hannah McCarthy: Precedent.
Nick Capodice: The president of the United States.
Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: I'm Nick Capodice.
Hannah McCarthy: And today we are talking about judicial precedent, how the Supreme Court interprets the law and how that interpretation becomes an authority and guidebook for everyone else, and what happens when that precedent is overturned. Now, we decided to do this episode because of something that's happening right now in our Supreme Court. It's June 20, 22, and earlier this year, a draft opinion in a Supreme Court case about abortion access. Dobbs v Jackson Women's Health Organization was leaked to the public.
Archive Audio: And leaked to the public late yesterday. Suggest that by this summer, a majority of the justices will overturn Roe versus Wade.
Hannah McCarthy: That opinion lays out a justification for overturning Roe v Wade, the landmark case in 1973 that established the right to abortion. By the time you hear this episode, a final decision may have been made in this case. But no matter the final decision, this draft opinion marks an historic moment in Supreme Court precedent. In this episode, we're going to talk about how Supreme Court precedent has worked throughout history and why precedent is so important. We'll also talk about how the Supreme Court has treated the precedent established in Roe v Wade in the years that followed. And we will have a special follow up episode that looks at how precedent is treated in the jobs opinion.
Nina Varsava: The doctrine of precedent refers to the norm of treating like cases alike.
Hannah McCarthy: This is Nina Varsava. She's a law professor at the University of Wisconsin, Madison. She studies judicial precedent and is the author of the 2020 article Precedent on Precedent take something like constitutional rights to life, liberty and property, for example. Now, by itself, that's pretty abstract, right? So how do we know that this actually means we have a right to a fair and speedy trial with the right to equal education?
Nick Capodice: Yeah, the right to marry someone regardless of their race or gender. All of these things we've seen and talked about in landmark Supreme Court cases over the years.
Hannah McCarthy: Right. These rights in our Constitution are given their meaning by the Supreme Court. Who decides what the law actually means in practice? They establish a precedent, and that precedent is the foundation for everything that follows. And I'm just going to go ahead and put it out there right now. This episode is full of legal jargon, but it's so worth it. Here is your first legal term for today. Stare decisis.
Nina Varsava: Stare decisis is short for a longer Latin phrase. That means stand by things decided and don't disturb settled points.
Hannah McCarthy: Basically, stare decisis is the practice of using precedent. When you get a case about, say, freedom of speech, you look at how similar cases were decided and use that to inform the decision in the new case.
Nick Capodice: Is this like reference to or alluded to anywhere in the Constitution? Because I don't think precedent or stare decisis is in there anywhere.
Nina Varsava: So the Constitution doesn't explicitly say anything about precedent. But some commentators have argued that the doctrine of precedent is constitutionally required.
Hannah McCarthy: Like a lot of things with the Constitution, it's up for interpretation.
Nina Varsava: So some believe that Article 3 of the Constitution, which concerns the judicial power, implicitly require stare decisis. And then some commentators have argued that following precedent is a requirement of constitutional due process.
Hannah McCarthy: Basically, your constitutional right to experience the law fairly and consistently, no matter where you.
Nina Varsava: And due process might also require courts to protect reasonable expectations. So people form expectations based on how past cases were decided. And then if courts upset those expectations, decisions are unpredictable, then that would violate the right to due process.
Hannah McCarthy: And that makes sense, right?
Nick Capodice: Yeah.
Hannah McCarthy: You are going to govern your life based on how rules have been set down in the past. Think of an open book test. For example, if a teacher has said all tests in this class will be open book and every test before the one you're about to take has been open book, you have the expectation that that next test is also going to be open book. And then, let's say the day before the test, the teacher says, Oh, no, sorry, this is not an open book test. That teacher has set an expectation and has now completely changed that expectation.
Nick Capodice: Yeah. That sounds demonstrably unfair.
Nina Varsava: Yeah. So once the Supreme Court sets a precedent, whether it's a new precedent on a new issue or it is a precedent overruling previous cases, it affects how other courts in the US will decide similar cases and in turn how people will structure their lives and conduct themselves. So all of the other courts in the US, both state and federal, are strictly bound by the US Supreme Court's cases on matters of federal law.
Hannah McCarthy: This is one way that precedent works, and it's called vertical stare decisis, and it's just what it sounds like. Decisions at the top flow downward.
Nina Varsava: An example is the case of Obergefell v Hodges decided in 2015. In that case, the Supreme Court determined that there's a constitutional right to same sex marriage. And in practical terms, this means that no government may create laws that ban or limit same sex marriage.
Speaker3: Profound. The 5 to 4 vote in many ways, reflecting the huge societal shift of the last 20 years.
Nina Varsava: So that decision, of course, had and continues to have a significant impact on many people's lives. So in practical terms of a state now enacts a law trying to prohibit or restrict same sex marriage, that law would be invalid.
Nick Capodice: But we've read a lot of Supreme Court decisions over the years, and they can be dozens of pages long and you've often got multiple opinions, concurring and dissenting. How do you figure out which part of the decision is the precedent?
Nina Varsava: If there is a majority opinion, then the standard view is that whatever is binding in the precedent is contained in that majority opinion.
Hannah McCarthy: Now, most cases are decided by a simple majority where the justices agree both on the question being asked and how the law applies to it. The interpretation in that simple majority becomes the precedent. So Obergefell v Hodges is one example of this. A54 majority of justices agreed that people have a constitutional right to same sex marriage, and therefore, in the case before them and in all other cases like it, a state could not pass laws that banned same sex marriage.
Nick Capodice: Yeah, but Nina just said if there is a simple majority.
Nina Varsava: Some cases don't have a majority opinion at all.
Hannah McCarthy: These are known as plural decisions. For example, four justices say a law and any law like it is in violation of the Constitution. Another four justices say a law is not in violation of the Constitution. And one justice has a concurring opinion. For example, I agree that this law is in violation of the Constitution, but just this one law, not all other laws like it in some plural decisions which part of the opinion is precedent is less clear. And I should say even justices on the Supreme Court disagree on how precedent should work in plural decisions. Sometimes this means that lower courts end up disagreeing on how to interpret the decision creating circuit court splits, and the case gets punted back up to the Supreme Court.
Nick Capodice: But in an ideal situation, the Supreme Court has issued a clear decision, and that decision becomes the precedent.
Hannah McCarthy: Yes. And vertical stare decisis means that when similar cases come up, the lower courts look to that decision and say, hey, this is what the Supreme Court said.
Nick Capodice: All right. This episode is happening at a time when the Supreme Court seems poised to overturn one of its own decades old precedents. There's no court higher than the Supreme Court. So obviously vertical stare decisis doesn't work there.
Hannah McCarthy: Right. So the way the Supreme Court treats its own precedent is horizontal stare decisis.
Nina Varsava: So there's no court that creates decisions that the Supreme Court would be strictly bound by. But it does recognize the precedential force of its own decisions.
Nick Capodice: Now, that feels a little more wobbly. However, from what I remember throughout history, the Supreme Court usually takes its own precedent pretty seriously. Nearly every Supreme Court case you read about is referring back to previous decisions as a guideline. So questioning themselves all the time would not only be counterintuitive, but also somewhat undermining.
Hannah McCarthy: Yeah, there have been over 25,000 Supreme Court decisions in the history of our Supreme Court, and only a few dozen of those precedents have been overturned.
Nina Varsava: The courts often modify precedent, which means that they're making some adjustment to a past decision, or they're updating the doctrine without completely discarding that previous doctrine. The Supreme Court, typically, and for good reason, has been wary of overturning precedent. So the doctrine of precedent serves several important purposes. For example, it helps to maintain the credibility of perceived legitimacy of the court. And the idea is that if the court adheres to previous decisions, even when the composition of the court has changed, then the court acts as. Going to seem to act as a law playing institution rather than a political or ideological one whose opinion vacillates with the politics or personal morality of the justices.
Nick Capodice: Well, that makes sense if you base all of your power and credibility on doing one thing really well. You don't really want to be in the habit of saying, Well, sometimes they did this well, but this other time I was actually completely wrong.
Hannah McCarthy: Yeah, exactly.
Nina Varsava: So the court's legitimacy might be degraded by a drastic shift in the doctrine concerning fundamental rights, and that might mean that its decisions aren't entitled to as much respect. And then another value underlying star decisis is fairness and equality. So the idea is that it's unfair for similarly situated people to be treated differently under the law over time.
Hannah McCarthy: This gets us back to due process. If the law is constantly up for question, then where you are in space and time can make a big difference in how the law is applied to you.
Nick Capodice: Okay, so overturning precedent is something that is done rarely and with good reason. So why would the Supreme Court ever do it?
Hannah McCarthy: We'll get to that after a quick break.
Hannah McCarthy: So there is a precedent for overturning precedent. Over the centuries, the tens of thousands of cases, the Supreme Court has developed a method for reevaluating its own reasoning. If the court is going to take the step to undo a decision it's already made, especially one that has informed dozens, if not hundreds or thousands of cases across the country, it has to make a pretty good argument for doing so. There are a few factors that the court uses when evaluating precedent. This is Nina Varsava.
Nina Varsava: One, whether the past decision has proven unworkable, so basically that it's impractical and feasible to implement or follow. And then to the degree to end way in which people and society have relied on the decision. Three Whether subsequent changes in law have made the decision a doctrinal outlier so that it just doesn't really fit with other legal doctrines, and for whether facts or our understanding of them have changed such that the holding of the precedent isn't applicable anymore or isn't any more justifiable based on what we now know or understand the relevant facts to be.
Hannah McCarthy: Let's break that down. Is the law impractical or unfeasible? For example, the Supreme Court once had a decision that said that sometimes the federal minimum wage applied to state employees, but not always.
Nick Capodice: This sounds really complicated.
Hannah McCarthy: It was so complicated, in fact, that lower courts couldn't figure out how and when states had to follow the minimum wage requirement or not. And a few years later, the Supreme Court reevaluated and decided.
Nina Varsava: Yeah, this is not workable.
Nick Capodice: Nina also mentioned that the court considers how people in society have relied on a precedent. What did she mean by that?
Hannah McCarthy: This is known as a reliance interest.
Nina Varsava: So they ask, to what extent did people rely on the previous decision or did society rely on it in order to plan their lives? And this kind of interest is also one of the main purposes of the whole doctrine of stare decisis. So protecting people's expectations, making the law predictable.
Nick Capodice: So if the court is considering whether a precedent should be overturned, it should also account for how overturning that precedent may impact people's lives.
Hannah McCarthy: Right. And finally, have facts changed or was there an error in reasoning? I mean, let's take the infamous precedent set by Dred Scott v Sanford. In that decision, the Supreme Court said that African Americans, whether they were free or enslaved, were not citizens of the United States. The decision was highly controversial at the time, and in some ways it helped to galvanize a political movement that eventually led to the Civil War and the abolishment of slavery. Now, later on the 13th and 14th Amendments made the precedent obsolete. It no longer fit with the ideology of the country as a whole. And beyond that, the Supreme Court acknowledged that the reasoning behind that decision was so wrong as to be anti cannon, anti precedent.
Nick Capodice: Now, Nina said that the Supreme Court doesn't often overturn precedent completely, but it modifies it.
Hannah McCarthy: And it just so happens that Roe v Wade is a perfect example of this. A few decades after Roe v Wade, the precedent it established was taken up by the Supreme Court, reconsidered and modified.
Nick Capodice: And if people want to do a deep dove into Roe v Wade, we did a whole episode on it that we just rereleased a couple of weeks ago. You can find it in our show feed. But real quick, can can you remind us all what precedent was established in Roe v Wade?
Archive Audio: Good evening. A landmark ruling the Supreme Court today legalized abortions. The majority in cases from Texas and Georgia said that the decision to end a pregnancy during the first three months belongs to the woman and her doctor, not the government.
Hannah McCarthy: Roe v Wade said that in certain circumstances, someone's ability to get an abortion is inherent to their right to life, liberty and property. And the ability to make that decision is inherent in their right to privacy, which had also been located in the Constitution. And the decision said that those circumstances were determined by viability. Basically, how far along a pregnancy was determined by the trimester system.
Rachel Rebouche: In the first trimester, says Roe. It's the patient in consultation with her doctor, who makes a decision whether or not to carry a pregnancy to term.
Hannah McCarthy: This is Rachel Rebouche.
Rachel Rebouche: In the second trimester. The state's interest becomes bigger.
Hannah McCarthy: She's a professor of law at Temple University, where she focuses on reproductive health, including prenatal genetic testing, surrogacy and abortion law.
Rachel Rebouche: There are certain restrictions that the state can impose and by the third trimester, past viability. Really, then the state can do a lot to restrict choice.
Hannah McCarthy: What's interesting about Roe is that the court justified this precedent that abortion was part of someone's 14th Amendment rights by referring to other 14th Amendment cases.
Rachel Rebouche: Earlier in the 20th century, the court had held that the 14th Amendment due process clause protects the rights of parents to dictate the education of their children. And why? Because the rights of parents to decide fundamental issues dictating how they raise children is older than the Bill of Rights. The same with marriage. There were the Constitution doesn't say marriage, but as part of this. Life, liberty and property. Part of your liberty is that the state cannot restrict your right to marry without a really, really good reason. They can't do it based on race in.
Nick Capodice: Loving, loving as in loving Virginia, which said that a state couldn't prohibit interracial marriage, which we've also done an episode about.
Rachel Rebouche: I can't do it because you're an inmate. They can't do it because you failed to pay child support.
Hannah McCarthy: And not only was Roe informed by other 14th Amendment cases more broadly, it was also informed by 14th Amendment cases that had to do with reproductive health.
Rachel Rebouche: Ten years before Roe was decided, the court had also decided a couple of cases that determined that the same set of values under the 14th Amendment protected the right to contraceptives. So first, it was striking down a Connecticut law that restricted the way in which married people could use contraceptives or obtain contraceptives, and then in the next case, striking down a Massachusetts law that forbid unmarried people from using contraceptives. So those are some examples of the types of rights that the court had held, that the 14th Amendment protected rights that are important to intimacy and relationships, family, procreation, reproduction.
Hannah McCarthy: The precedent in Roe v Wade has been held up to scrutiny, and it has been modified, for example, in a case from 1992 called Planned Parenthood v Casey, Pennsylvania passed a new law that restricted abortion by creating additional requirements that someone had to meet to access an abortion like a waiting period. Spousal notice, parental consent for minors. The Supreme Court took up the case to figure out if the precedent in Roe v Wade was still workable. The court could have completely overturned Roe v Wade, but it didn't.
Archive Audio: David Souter and Anthony Kennedy wrote. After considering the fundamental constitutional questions resolved by Roe, we are led to conclude this The essential holding of Roe v Wade should be retained and once again affirmed.
Rachel Rebouche: The court surprised some. Then it did not overturn Roe. What it did is it said we announce a new test essentially that states have to pass if abortion restrictions are going to stand. We took the trimester system. That's not workable moving forward. Viability is changing. Science is changing. Technology is changing. Change, change, change. And instead what we're going to do as a court is we're going to ask, does the state restriction impose an undue burden on the right to abortion that, you know, open the door for a lot of restrictions? A lot, a lot a lot of restrictions. In that same case, the Supreme Court upheld every Pennsylvania restriction except for the requirement that a woman notify her spouse before she had an abortion, that they upheld the informed consent and reporting requirements and a waiting period and you name it.
Hannah McCarthy: However, the Supreme Court still felt that the core of Roe v Wade, that access to abortion was a protected right, should still stand.
Nina Varsava: So in Casey, the court reason that people were relying on Roe and that the reliance was important and widespread of kind of societal reliance.
Nick Capodice: So the court went so far as to tweak the precedent of the landmark case of Roe v Wade, but stayed in line with the core constitutional question that Roe answered. Access to abortion is federally protected and based on precedent that came before.
Hannah McCarthy: Which is important not just to constitutional interpretation, but to the authority of the Supreme Court itself. The court is the final arbiter of the Constitution. The court tells us what the Constitution actually says to overrule one of those interpretations, a seminal landmark interpretation, no less, is to say that the court was very wrong about something very significant. And in this case, it is to say that they were wrong not so very long ago. The court is hesitant to do such a thing and with good reason.
Nick Capodice: So precedent is really twofold, isn't it? It's about establishing a through line of meaning in the Constitution, and it's about affirming that the court was correct the first, second and third time they establish that meaning.
Hannah McCarthy: Yes. And 20 years after Roe and Planned Parenthood v Casey, the court maintained that core precedent, that precedent based on precedent. But 50 years later.
Archive Audio: Politico report said that shortly after the court heard oral arguments in December about a mississippi law banning abortion after 15 weeks, five Republican nominated justices voted to overturn Roe. That would be a seismic shift, both legally and politically. 26 states are. Certain we're likely to.
Nick Capodice: Yeah. We are going to have to figure out what that actually means for precedent.
Hannah McCarthy: Yeah, we sure are. Based on the precedent set in this very episode, that's in a special bonus episode of Civics 101.
Nick Capodice: Today's episode was produced by Christina Phillips with help from Hannah McCarthy and me, Nick Capodice. Our staff includes Jacqui Fulton, and Rebecca Lavoie is our executive producer. Music In this episode by wax lyricist, Holizna, Chris Zabriskie. Des Moran, Scan Globe, Nul Tiel Records and Rocky Marciano, if you like Civics 101 and you get something out of it and are in the position to put something back in, please consider donating to our show. We're a nonprofit, so people like you are literally the only way we can exist. Thanks. Civics 101 is a production of NHPR New Hampshire Public Radio.
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This podcast is a production of New Hampshire Public Radio.
Happy has lived in New York City’s Bronx Zoo for years. To visitors, she’s a lone Asian elephant. But to a team of animal rights lawyers, she’s a prisoner.
When this episode first came out, lawyers had petitioned the New York State Court of Appeals for a writ of Habeas Corpus; a legal maneuver that could have freed Happy and set a new precedent for animal rights. But in a mid-June 2022 ruling, the court decided: Happy isn’t going anywhere.
You can hear a quick update to the episode episode below.
Because this is a case that deals with animals AND the law, two podcasts from New Hampshire Public Radio teamed up to take it on: Outside/In and Civics 101. We always hear about the animal rights movement… but what rights do animals actually have?
Nate Hegyi: Before we start… should all introduce ourselves. I’m Nate.
Nick Capodice: Nick.
Hannah McCarthy: Hannah.
Nate Hegyi: Great. Now I want you both to picture this: It’s a Wednesday afternoon in Albany, New York.
Nick Capodice: Hold on, Nate. One more time. It's Albany.
Nate Hegyi: Ahhh. Albany. Albany. Albany. It’s a Wednesday afternoon in Albany, New York. A bunch of lawyers are gathered in the state’s court of appeals.
Nick Capodice: I do so love a good “gathering of lawyers” story…
Nate Hegyi: Attorney Monica Miller makes her way to the PODIUM. And she looks a little nervous standing in front of this big row of judges.
Monica Miller: Yes, Good afternoon your honors, may it please the court.
Nate Hegyi: But then she just launches into her spiel. She represents a 64-year-old who she says has been illegally detained in a prison in the Bronx for years. Miller’s client only has a first name. Happy.
Monica Miller: If she hadn’t been kidnapped from Thailand as a baby, Happy could be a matriarch herself. But instead of leading her sisters and cousins and grandchildren hundreds of miles through ancient migratory routes.
Nate Hegyi: So, Miller wants the court to grant Happy freedom…. But there’s a hitch because… as you might be able to guess by now... Happy isn’t a person.
Hannah McCarthy: I had a feeling that was coming.
Nate Hegyi: Right? She’s an elephant. Living in the Bronx Zoo.
Tour Guide: We are now about to see our Asian elephant, Happy.
Nate Hegyi: But Miller and a team of lawyers are arguing that Happy isn’t just an animal in a zoo. That she’s actually a legal person with rights to freedom and liberty. One that’s being held in a prison. And this is just the latest case in an ongoing fight to extend basic human rights to animals. And because this is a case that deals with animals and the law, two podcasts from New Hampshire Public Radio are teaming up for this special crossover episode. I’m Nate Hegyi with Outside/In – we cover nature and the environment.
Hannah McCarthy: I’m Hannah McCarthy.
Nick Capodice: I’m Nick Capodice.
Hannah McCarthy: We are the hosts of Civics 101. Basically we explain how government works.
Nick Capodice: And we always hear about the animal rights movement, but, Nate, what rights do animals actually have?
Nate Hegyi: We’re going to dive into that question, and how this case about an elephant in New York, could have massive consequences for zoos, farms, and even your own cats and dogs.
Nate Hegyi: Hannah, Nick, before we dig in, I need you to meet a friend of mine. Her name is Gilly and she is a three-legged dog. Hi, Gilly!
Hannah McCarthy and Nick Capodice: Oh Hi Gilly!
Nick Capodice: Do you ever call her tripod because she’s tri-pawed?
Nate Hegyi: We’ve definitely called her tripod!
Hannah McCarthy: Oh that’s so cute.
Nate Hegyi: So to your knowledge right now, does this sweet little dog Gilly have any legal rights?
Hannah McCarthy: Well, so I know that animals are pretty much considered property, but we do have a bunch of federal protections for animals. I know you can't beat her or, you know, withhold food and water. You can't make Gilly dog fight. Right? That's a felony in all 50 states.
Nate Hegyi: So I just want to be clear here. Hannah, I would. I would never beat Gilly or make her get into a dog fight.
Nick Capodice: Or withhold food and water from her.
Hannah McCarthy: Yeah, but you can't abuse her, right?
Nate Hegyi: I can't abuse her. Yeah. And so these rights that you're talking about, they're called anti-cruelty laws. And, these are one of the biggest protections that animals like Gilly have right now in the Western world. They essentially say you can’t hurt or abuse certain animals. And they really got popular in the 19th century. Abolitionists were questioning slavery, the treatment of Indigenous people, child labor… and animal welfare. And we saw a lot of these anti-cruelty laws pop up across the country. In 1866 the New York State legislature established the American Society For the Prevention of Cruelty to Animals also known as… Nick?
Nick Capodice: yeah, I’m going to go with the ASPCA
Nate Hegyi: yes! The ASPCA.And they actually had people with badges and uniforms walking the streets of New York City and breaking up cockfights and stopping folks from being mean to their horses.
Nick Capodice: That’s fantastic!
Nate Hegyi: It was a big cultural shift for this country. Treating animals not as brutes or beasts, but as things deserving of some gentleness and kindness. Nowadays, though, one of the big critiques of anti-cruelty laws is that they don’t go far enough. They’re also biased… in the sense that the prevailing human culture gets to decide which animals receive kindness… and which animals we’re cool with hurting and killing. Like, I’ll give the example of cats. In the 19th century, cats were on the crap list.
Nick Capodice: Cats, why were cats on the crap list?
Nate Hegyi: Because they killed, and still do kill, beautiful songbirds. And Some of the same folks saying that we should protect animals were also arguing we should kill all the cats!
Hannah McCarthy: That is so bizarre. But of course, you know, they are, witches familiar, so…
Nick Capodice: Yeah. And they like, didn't they like suck the breath out of children?
Hannah McCarthy: Yes, Cats would suck the air out of you in your sleep.
Nate Hegyi: Well there you go. That's another reason. Not only do they kill beautiful songbirds, but they also suck the breath out of children. I mean, that's that's really terrible.
Hannah McCarthy: For the record, I love cats.
Nick Capodice: That makes one of us.
Nate Hegyi: And obviously, nowadays, cats are in that protected class of cute, cuddly animals along with dogs or horses. You can’t abuse them. But at the same time… many of us are still comfortable hurting other animals like cows or chickens at a factory farm. And that’s where I want to bring in Maneesha Deckha who is a law professor at the University of Victoria in British Columbia. And she’s actually pretty critical of these anti-cruelty laws for that very reason.
Maneesha Deckha: Really what you have is a legal situation where cruelty is only ever thought by legal actors to maybe apply to kind of culturally aberrant practices. So like putting your cat in the microwave.
Hannah McCarthy: Did she just say putting a cat in a microwave?
Nate Hegyi: Yes she did, because she’s making the point that obviously putting a cat in the microwave would be considered animal cruelty. But cutting off a chicken’s beak and putting it in a small cage with tons of other chickens: not considered animal cruelty.
Maneesha Deckha: Even though the level of pain and suffering to that animal can be the same as what happens to a cat in a microwave.
Nick Capodice: Do chickens, cows and other livestock… Do they have any legal protections or rights at the federal level, like the cuddly animals do?
Nate Hegyi: Ehh… not really. I don’t know if you would call this legal “protection” but there is a law that requires livestock to be afforded a quick and efficient death. But it also doesn’t include turkeys or chickens. And all livestock animals are exempted from the country’s big anti-cruelty law… the federal Animal Welfare Act… along with mice and rats.
Hannah McCarthy: Now, what about wild animals? Have we protected them in any way?
Nate Hegyi: Another meh for that one. It’s a mixed bag. We have the Endangered Species Act, which gives some habitat and hunting protections to imperiled species like grizzly bears. And wild horses on federal lands have special legal protections – we can’t hunt them. But at the same time you can still go out and buy one of those sticky traps for a field mouse, or buy a .22 and pick off squirrels that are trying to steal from your birdfeeder.
Nick Capodice: Right, right. And you can, like, set traps for foxes and coyotes that are arguably cruel and hurt them, but it's not illegal.
Nate Hegyi: Exactly. And Maneesha argues that these animal welfare and conservation laws aren’t really rights… at least as you and I have them.
Maneesha Deckha: Which means the right not to be killed by somebody else for their purpose or the right not to have your body used for someone else's profit. And that’s how animals are used.
Nate Hegyi: And that brings us to the latest battlefront. A slow grind towards granting animals something called personhood. Maneesha says that Western common law pretty much divides the world into two categories. You’re either a person or you’re a thing.
Maneesha Deckha: so either as a rights holder. So then you get to typically be seen as a person or you are the object of rights.
Nate Hegyi: And the big lift for animal rights activists is convincing judges that an animal isn’t a thing that we humans get to lord over. Instead, that it’s a person. At least in a legal sense.
Nick Capodice: This is an argument we've talked about a lot on our show. It's been used in the past to give basic human rights to women, black Americans, indigenous people. But in this case, I feel like it could get pretty fraught pretty quickly when activists start comparing the oppression of animals to the oppression of humans.
Nate Hegyi: Right , that was one reason why the first case trying to establish personhood for animals in the United States failed. And that story is coming up right after the break.
Nick Capodice: And hey, since we’re taking a little break here now is the perfect time to sign up for our free Civics 101 newsletter. It’s called Extra Credit. We pour our heart and soul, and a fair number of political dinner-party factoids into this thing, so you can sign up at our website, Civics101.org, and we’ll put a link in the show notes.
Nate Hegyi: Hey. you’re listening to a special crossover episode between Outside/In and Civics 101. I’m Outside/In host Nate Hegyi.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And I'm Nick Capodice. We're from Civics 101.
Nate Hegyi: All right. So we’re going to talk about Tommy.
ABC News: 26-year-old Tommy may not sound like the greatest catch. He’s a retired circus performer, living alone behind a trailer park, watching TV all day and night.
Nick Capodice: Oh, that reporter just loved that joke, did he? Oh, he's going to get everybody in America.
Nate Hegyi: So, that was ABC News, and as you can probably guess again, Tommy isn't a human; he’s a chimpanzee. And he was actually in this movie in the late eighties called Project X with Matthew Broderick….
Project X: These are monkeys! I don’t know anything about monkeys!
Nate Hegyi: But by the 2000’s… Tommy was living with a family in New York State in essentially a jail cell with palm trees painted on the walls. Just Tommy and a color T.V. playing cartoons.
Nick Capodice: Oh, that’s horrible.
Hannah McCarthy: Yeah, that’s just, yeah.
Nick Capodice: After a long and illustrious film career, you know?
Nate Hegyi: So in 2013 this animal rights law firm called the Nonhuman Rights Project heard about Tommy’s situation. And one of their main goals is to establish personhood for animals. And if you’re a lawyer trying to push a new legal precedent like this, you have to look for the perfect case to carry it. And Tommy’s case looked pretty dang good.
Hannah McCarthy: How so? What differentiates Tommy’s case from any other case?
Nate Hegyi: Well, there were three big reasons. First, he’s a chimp. Highly intelligent, an ape, so its in the same taxonomic family as humans. Chimps remind people of people and the thought is that could engender more sympathy with both the courts and with the public. And speaking of the public, the second reason why it was a good case is that Tommy lived in New York State which is a major media market. That means Tommy’s case could get a lot of attention. That’s important if you’re trying to change hearts and minds about how we treat animals, right? And the third reason was that Tommy was in captivity. Which means the lawyers could petition the state for something called a writ of habeas corpus. Alright, Civics 101 friends. What is that?
Nick Capodice: Hannah, you want to take this one?
Hannah McCarthy: I think I can.
Nick Capodice: First. Nate, I wonder if you can do this. Can you, like, get some sort of, like, a medieval soundtrack going on in the background? Like some swords clanging and people being like, Ho there!
Nate Hegyi: Can I just do it with my own voice? Cling! Cling! Cling!
Nick Capodice: Hannah What time are we talking about when it comes to the first writ of habeas corpus?
Hannah McCarthy: Do you really want me to do this?
Nick Capodice: I do.
Hannah McCarthy: The high middle ages!
Nick Capodice: I'm sorry, Nate. This is a long running joke. Basically, just between the two of us. Hannah did an episode on Magna Carta for our founding documents series, and she opened with the line, the high Middle Ages. And we haven't stopped laughing about it for three years.
Hannah McCarthy: Okay, so, the idea of habeas corpus is in Magna Carta. That’s from the high Middle Ages, and it became a part of English common law after that point. The expression later found its way into Article one, Section nine of the U.S. Constitution. I'm going to give you the quote here. “The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it.”
So what does that mean?
What habeas corpus does is protect people from unlawful or indefinite imprisonment without a hearing.
Nate Hegyi: Habeas Corpus is also a great way to establish personhood. Because only quote unquote legal persons are eligible. If Tommy is granted habeas corpus - he could become a legal person. Which means he’d have the human right of bodily liberty. He could go free.
It also means he could be eligible for other rights, and not just be considered an object or property. Tommy’s case is the first of its kind in the United States. The lawyers? They’re feeling good about their chances.
Kevin Schneider: We felt pretty strongly that just the wealth of science about the cognition and behavior of chimpanzees would really open doors.
Nate Hegyi: So that’s attorney Kevin Schnieder. He’s the executive director of the Nonhuman Rights Project. And side note - When we were talking HIS three-legged rescue dog kept walking through his dining room making a bunch of noise.
Kevin Schneider: I might just have to stop for a second because my dog is loudly drinking water behind me.
Nate Hegyi: But anyways, in building the court case for Tommy the chimp, the nonhuman rights project pointed back to cases from two or three hundred years ago.
Kevin Schneider: Where women, children, certainly African-Americans, slaves, Indigenous peoples were treated in horrendous ways. And when they tried to make claims to courts, they were routinely told, you don't have rights, you are not a person. You are something less than a full person in the eyes of the law.
Hannah McCarthy: Ok, wait, wait, wait. Comparing the plight of enslaved black Americans, for example, to that of apes has a really racist legacy in the West.
Nick Capodice: Yeah, basically 19th and 20th century eugenicists fabricated grotesque racist hierarchies with black people being labeled closer to apes than white people. And in the 1900s, there were like literally humans in zoos. The Bronx Zoo, which is part of our story today. The Bronx Zoo had a Congolese teenager on display in the monkey exhibit in 1906.
Nate Hegyi: That is absolutely terrible. And this is where the Nonhuman Rights Project got a lot of flack by both judges and the media. I mean, take a listen to this back and forth between a black reporter and the group's white founder, Steven Wise. It's from this 2016 HBO documentary called Unlocking the Cage.
Reporter: And of course, those equating chimpanzees and apes and stuff like that, obviously hideously. So with black people and say, well, wait a minute, you know, you know, chimps are chimps. They are not humans. Steven Wise: Obviously, we're not saying we're not saying that a chimpanzee is a human and we're not equating chimpanzees with slaves.
Nate Hegyi: Still, the Nonhuman Rights Project couldn’t shake those connotations. Steven Wise got called out by a judge during one of Tommy’s hearings.
Unlocking the Cage: I keep having a difficult time with you using slavery as an anology to this situation. I just have to tell you that. Steven Wise: Let me suggest this, that by referring to human slavery we are no way comparing Tommy to any. Judge: I understand but my suggestion is that you move in a different direction for your remaining two minutes.
Nate Hegyi: And the courts, they ended up rejecting Wise’s petition for a few different reasons. One of them was this – a chimp isn’t a person because they can’t bear legal duties. They don’t have societal responsibilities and they can’t be held legally accountable for their actions. Although an Appeals Court judge later issued a separate opinion that really challenged that idea.
Kevin Schneider: he pointed out quite correctly that many do not have the ability to take on legal duties. If someone is a child, if an older person has dementia or Alzheimer's or someone's in a coma, they don't have the ability to take on legal duties. But we certainly don't take away their rights.
Hannah McCarthy: That, to me, seems like a far better argument to make before a judge, Right? As opposed to bringing up enslaved people.
Nate Hegyi: Absolutely. Regardless, Tommy’s case had hit a dead end. But that same year, the nonhuman rights project began pursuing a different case, one that would allow them to move away from the racial implications of comparing apes and humans.
Hannah McCarthy: Is this Happy?
Nate Hegyi: Yes, Happy the elephant.
News Montage: An animal rights group is suing the zoo, claiming the 40-year-old elephant…
Nate Hegyi: So as we heard… Happy is a middle-aged elephant living by herself in the Bronx Zoo. which is tough because elephants are these really social, complex creatures. And Happy in particular is one smart cookie. She was the first elephant in the world to pass this thing called the mirror recognition test.
Nick Capodice: What is the mirror recognition test?
Nate Hegyi: So I’ll let Kevin explain:
Kevin Schneider: they marked her head with an X and then put her in front of a mirror. And if the subject stands in the mirror and, you know, touches the mark on the head while they're looking at themselves in the mirror, but they're touching, obviously, themselves, that actually means quite a lot. It means that they're able to appreciate that this image that they're looking at is actually themselves. And that takes quite a bit of mental machinery, a surprising amount.
Hannah McCarthy: So she recognized herself in the mirror.
Nate Hegyi: Right! Which… humans, we don’t have that level of self-awareness until we are about two years old. So they have this really smart, socially complex elephant. And the nonhuman rights project files a writ of habeas corpus saying Happy is imprisoned in the Bronx Zoo. They want her declared as a person and released to a special wildlife sanctuary in Tennessee. This case has been slowly leveling up through the New York State courts over the past four years. Which brings us to May 18th.
Court of Appeals: Here ye, here ye, here ye…
Nate Hegyi: It’s a warm spring day in Albany and oral arguments are just beginning at the New York State court of appeals.
Court of Appeals: Judges of the court…
Nate Hegyi: And by the way, I’ve never watched a court of appeals hearing before and dang, those judges go hard! Happy’s lawyer, her name is Monica Miller. And she’s just getting into her argument when one of the judges straight up interrupts her.
Judge Rivera: Counsel, counsel… I’m on the screen. Good afternoon.
Nate Hegyi: So all of these judges are just lobbing questions. But they seem stuck on two points. The first one is that… bottomline… Happy isn’t a human being. When Happy’s lawyer starts pointing back into history at cases where marginalized humans weren’t considered legal persons, she’s stopped dead in her tracks.
Judge Rivera: But even in those examples, they’re all human beings. The court is recognizing the humanity in each of those cases. How can the court apply habeas when we’re not talking about a human? How do we make that move from one point of the spectrum to this other point that you’re arguing for.
Nate Hegyi: Happy’s lawyer pushes back and says species membership isn’t the right marker for deciding whether something is deserving of a basic human right. Instead, it’s intelligence and autonomy.
Monica Miller: And we’re not talking about making basic choices like make a noise or don’t make a noise, or choose this food or that food. We’re talking extensive communication.
Nate Hegyi: The other sticking point for the judges appeared to be… what kind of pandora’s box does this open if Happy wins and gets declared a person with this basic human right?
Nick Capodice: Right. And this is what I've heard about regarding this case, the slippery slope argument like, well, what's next? You know, are we are none of us ever going to eat meat again?
Nate Hegyi: Right. Or like, what about dogs?
Judge: So does that mean that I couldn’t keep a dog? I mean, dogs can memorize words.
Hannah McCarthy: And what about, like, pigs at a factory farm, right? Pigs are highly intelligent and emotionally complex animals. So do they get a right to freedom if Happy wins?
Nate Hegyi: Well, That’s what industry groups representing zoos, farms and veterinarian associations all worry about. Lawyers for all of these groups have written amicus briefs urging the court of appeals to reject Happy’s case. The farm lawyers, they’re worried about economic and social upheaval. The vet lawyers are worried that if animals gain personhood, then it could destroy the idea of ownership and that people might not be able to make medical decisions for their cats and dogs.
Nick Capodice: But Nate, if Happy wins this case, that doesn't mean that all the animals are going to be immediately freed from zoos and farms. That's just not how common law works. Right?
Nate Hegyi: Like, if Happy actually wins – which by the way even her lawyers think it’s a total longshot – but if she does win, technically only Happy will receive personhood and this basic right to liberty. So here’s Kevin Schnieder again.
Kevin Schneider: So it won't immediately free any other animals, not even other elephants. You know, there are other zoo elephants in New York. That being said, I think it would make, certainly make it a lot easier to make an argument on behalf of other elephants.
Nate Hegyi: So they’re not buying the whole slippery slope argument, but at the same time - the whole point of a case like this is to create some sort of pathway… because right now, all nonhuman animals are objects in the eyes of the law. And that’s that.
Kevin Schneider: I also think for great apes in the state, it would also open doors for them in large part because, you know, these are the species we have been talking about from day one. Elephants, great apes, dolphins, whales. They have a sense of themselves, their past, their present, their future. They can make decisions for their own lives, meaningful decisions, and reflect on those decisions.
Hannah McCarthy: So, Nate, when did oral arguments happen in this case?
Nate Hegyi: May 18, 2022. So this year.
Hannah McCarthy: So when will the judges make their decision?
Nate Hegyi: I mean, it could be a month or more. But when it does come, we’ll be sure to give an update to all you listeners out there.
Nick Capodice: Well, I gotta say, thank you very much Nate, this was a ton of fun!
Hannah McCarthy: Yeah, can we do it again sometime?
Nate Hegyi: Oh my god, I would love to.
Nick Capodice: The real question is what should we cover next, you know, on our crossover. What about something like… The Migratory Bird Treaty Act?
Hannah McCarthy: What about something like the creation of the EPA?
Nate Hegyi: I’d love to dig into the history of the National Weather Service.
Hannah McCarthy: Yeah!
Nick Capodice: Whoo! Well, let’s enshrine our democracy and put it to a vote. Why don’t we put it to listeners - folks, if you’ve got a suggestion for the next Civic 101 Outside/In crossover episode, you can email us, tweet at us, send us a letter by pigeon, whatever makes sense for you.
Nate Hegyi: Whats your handle? How can people find you?
Nick Capodice: We’re @civics101pod
Nate Hegyi: And we’re at @outsideinradio
Credits:
Nate Hegyi: This episode was produced and reported by me, Nate Hegyi, with Hannah McCarthy and Nick Capodice.
Nick Capodice: It was edited by Taylor Quimby, Rebecca Lavoie, with help from me, Nate, and Hannah.
Hannah McCarthy: It was mixed by Nate Hegyi. City pronunciation fact-checking by Nick Capodice.
Nick Capodice: It is ALL-bany, Nate
Nate Hegyi: Albany, Albany, Albany.
Hannah McCarthy: Our executive producer is Rebecca Lavoie
Nate Hegyi: Music from this episode came from El Flaco Collective, The Fly Guy Five, Jules Gaia, and peerless.
Our theme is by Breakmaster Cylinder. Outside/In…
Hannah McCarthy: AND Civics 101…
Nate Hegyi: Are both productions of New Hampshire Public Radio!
Nick McCarthy: (elephant noise)
Hannah McCarthy: That was so unpleasant.
Nick McCarthy: You didn’t like my elephant sound? Sorry, Nate.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
The federal judiciary system has three steps: district court, circuit court, and the Supreme Court, and despite what you see on screen, many cases do not end with that first courtroom verdict. This is how the federal judiciary system works, what makes a case worthy of consideration by the Supreme Court, and what happens when case lands in front of SCOTUS. We talked with Erin Corcoran, Executive Director for the Kroc Institute of International Peace Studies, and Behzad Mirhashem, Assistant Federal Public Defender in New Hampshire and professor of law at UNH Law.
Listen to our breakdown of Tinker v Des Moines in IRL1: Free Speech in Schools.
Fed Court System.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.
Hannah McCarthy:
I've got to be honest, Nick. We've been doing this show for years now, and I still don't entirely grasp the court system. Can I say that on this show? Yeah, because we've got district courts, right? Circuit courts. Courts of Appeals. The Supreme Court. The Supreme Court. I pretty much have. But like everything else, it's. It's a tangled web.
Nick Capodice:
Well, I hope we can untangle that web today, Hannah. And actually, I think it might be more appropriate to think of it as a ladder instead of a web. Because though television and movies make it seem like cases end with the judge announcing a verdict. For many cases, that is just the first step on the ladder. You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy:
I'm Hannah McCarthy.
Nick Capodice:
And today we're talking about the federal judiciary system and how a case can go from that first trial all the way up to the Supreme Court.
Hannah McCarthy:
Okay. Nick, I just want to make sure I understand the difference between the federal judiciary system and the state judiciary system, because most people, if they're going to be dealing with the legal system, say a divorce or a contract dispute or even like a traffic violation, that is all happening in state court.
Nick Capodice:
Yes. And to complicate it, every state has completely different laws. Federal laws are for the country as a whole. But I will say that individual state court systems do look a lot like the federal court system.
Hannah McCarthy:
Like the same structure.
Nick Capodice:
Right. And what we're discussing today, you know, trial courts and appeals and the Supreme Court, it's probably pretty similar to what you're going to see in your own state.
Erin Corcoran:
So there's three main levels to the federal judiciary. The first is the district court level, which is the trial court level.
Nick Capodice:
This is Erin Corcoran, Civics 101, talked with her back in 2019. Then she was a professor at the University of New Hampshire School of Law, and she is now the executive director for the Kroc Institute of International Peace Studies.
Erin Corcoran:
And there's 94 federal district courts in the United States.
Hannah McCarthy:
Pause there. We got to define it. What's a trial court?
Erin Corcoran:
Sure. So a trial court hears the questions for the first time. And they're primarily concerned with working through the facts of the case, trying to understand what the different issues are and developing sort of a timeline, a sequence of events, what happens, and then also what kind of legal recourse the parties may have. If you don't like that decision, either party in the civil law context can ask for the appellate court to review the decision of the district court.
Nick Capodice:
And we'll get to those appellate courts in a minute. But, Hannah, when you think of the popular depictions of court proceedings, you're most likely thinking about a trial court.
Erin Corcoran:
Lawyers on either side. Usually you have a jury. People are called up to testify. It's sort of what you see in Law and Order on TV. That's the trial court.
Nick Capodice:
And there are trial courts in the state judiciary system as well. But for cases involving federal law, what we're focusing on today, we've got these 94 district trial courts.
Hannah McCarthy:
Are these broken up geographically somehow?
Nick Capodice:
Yeah. Every state gets at least one district, including the District of Columbia and Puerto Rico. But some states with much bigger populations, they're divided into two, three or four districts. And we also have territorial courts for Guam, the Northern Mariana Islands and the U.S. Virgin Islands. Those are like district courts with like a few differences.
Hannah McCarthy:
So do these district courts see every case that is not relevant to state law?
Erin Corcoran:
A federal court is a court of limited jurisdiction, and they basically have jurisdiction over constitutional questions. Does this law violate my First Amendment rights, my right to freedom of speech, freedom of association? A federal district court would be the court that would hear that claim. They also can hear what we refer to as federal question claims. This is sort of Congress saying if this question is about federal law, you know, whether or not an agency has the authority to do something, that would be another example of the kind of question that that court could hear.
Nick Capodice:
Hannah, you may remember a little case that we've talked about in several episodes Tinker v Des Moines.
Hannah McCarthy:
Oh yeah, of course, that was the case about First Amendment rights of students during the Vietnam War. Right. There were black armbands involved.
Nick Capodice:
Yeah. And if you want to do a deep dove into that case and other cases of free speech in schools, check out that episode. The link is in the show notes. But today Tinker V Des Moines is going to be our real life example of how a case moves through the federal judiciary system all the way up to the Supreme Court.
Hannah McCarthy:
Let's do this.
Nick Capodice:
All right. Short version, Tinker V Des Moines, 1965, Mary Beth Tinker and her brother John, along with her friend Christopher Eckhardt, wore black armbands to mourn the dead on both sides in the Vietnam War. These were worn in protest and they were suspended and they sued their school district for that suspension. And here's a quick clip of John Tinker talking about what happened when the school board got wind of their plan to wear these armbands.
Archival Audio:
And the principal got a hold of the other principals in town and they had a meeting and they decided to not permit the wearing of black armbands. Then I went to classes uneventfully for the first half of the day. The first period in the afternoon there was a phone call, John Tinker report to the office. So I did and I talked with the principal of the school for a long chat, maybe 45 minutes or so, and he said that he thought maybe I'd gotten bad information or information from bad sources. I might there might have been some communist influence that would cause me to think the way I did about the war. He said that it's going to hurt your college career and so on. And at the end he said, I'm going to ask you to take off that armband. If you take it off and go back to class, it'll just be treated. Nothing happened at all, he said. But I don't think you're going to do that, are you?
Hannah McCarthy:
Well, we wouldn't be talking about this case if he did.
Nick Capodice:
That's right. The students were suspended. They sued the school district in the U.S. District Court for the southern district of Iowa, saying the policy against these armbands that had been created violated their First Amendment rights.
Hannah McCarthy:
Aha. So this is a First Amendment case, which means it has to do with federal law and not state law, which is why it was filed in a federal court. Yes.
Nick Capodice:
Yes. The district court sided with the school district and dismissed the case.
Hannah McCarthy:
Okay. But we know they appealed it.
Nick Capodice:
They appealed it, yeah. A party can, in most cases, appeal the decision to a higher court known as an appellate court if they think the lower court was wrong in some way. These higher courts are the next level up in the ladder. They're called the United States Courts of Appeals, also known as circuit courts. And there are 12 geographical circuit courts and one federal circuit court.
Hannah McCarthy:
So how does someone know which circuit court to appeal to?
Nick Capodice:
Circuit courts cover different regions, so 93 of the districts are lumped into 11 circuits, and the District of Columbia gets the circuit court all to itself, and that's known as the D.C. Circuit. And those D.C. courts cover a lot of federal legislation, given that the US Capitol is located in that district.
Hannah McCarthy:
And you also said there is a federal Circuit Court of Appeals. How does that one work?
Nick Capodice:
The federal circuit court, unlike the other circuit courts, it's not dependent on geography, but the type of case. So notably that federal circuit court deals with cases about patents, federal employee benefits and government contracts. When a case moves upward in the chain, any decision in the higher court takes precedent over the lower court.
Hannah McCarthy:
Now, does the appellate court hear the whole case again?
Behzad Mirhashem:
Most of the work of an appellate court is done in writing.
Nick Capodice:
This is Behzad Mirhashem from the University of New Hampshire School of Law Civics 101 originally talked to him back in 2019.
Behzad Mirhashem:
What happens is, if they agree to hear a case, then the parties submit briefs. Those are documents in which both sides present their arguments in writing.
Erin Corcoran:
That appeal is less dramatic. Most of that work is done before they actually present the case to the court, and it's all done with written briefs. And then the court may have what's called an oral argument, an opportunity for each party to give an oral summation of their legal arguments to the appellate body.
Nick Capodice:
A group of circuit court judges might vote to do one of four things they can uphold the lower court's ruling. They can reverse the lower court's decision. They can remand it. That's sending it back to the lower courts to be reheard. Or finally, they can modify that decision. In the case of Tinker V Des Moines, the Tinker family appealed to the US Court of Appeals for the Eighth Circuit, and a tie vote by the judges upheld the ruling by the District Court.
Hannah McCarthy:
And this is where the Supreme Court comes in.
Nick Capodice:
Yeah, they had one more level they could climb on that federal judiciary ladder.
Hannah McCarthy:
All right. But before we get there, just a quick question. So you've got all of these circuit courts that are ruling on cases that come to them based on their geography. But what if you had a situation of two circuit courts hearing similar cases and coming up with different decisions like, say, a group of students in Florida also wanted to wear clothing in symbolic protest of war. And the circuit court covering Florida said that actually it was a violation of First Amendment rights for a school to ban students from wearing certain clothes in symbolic protest.
Erin Corcoran:
I think with respect to the different circuits, because they are regionally based and geographically based, reflexively, their opinions will be different, sort of in part based on sort of what kind of cases come up through them. The circuit courts are only hearing appeals that are coming from district courts in their circuit. So, for example, if a New Hampshire judge's decision was appealed to the First Circuit and a California or Washington state judge's decision was appealed to the Ninth Circuit, the Ninth and First Circuit could in theory, have come up with different rulings. And that would be what we refer to as a circuit split where there is disagreement among the circuits. And so the decision by the First Circuit would be what everyone living in the First Circuit would have to abide by, and those in the Ninth Circuit would have to abide by the Ninth Circuit ruling.
Nick Capodice:
And we all know who loves a circuit court split the US Supreme Court. And we're going to get to that right after the break.
Hannah McCarthy:
But first, a warm and gentle reminder that Civics 101 is produced by a nonprofit radio station, meaning that for the most part, we sing for our supper. If you enjoy civics one on one, if you learn anything from it. I know I do. Please consider giving us a donation at Civics101podcast.org.
Nick Capodice:
All right, we're back. We're talking about federal courts. And let's look back at our federal judiciary ladder real quick, Hannah. We've got district courts where trials happen. There are 94 of those spread out across the country. And then we've got the US Circuit Courts of Appeals. There's 12 of those and one federal court of Appeals.
Hannah McCarthy:
Okay. I think this means that we have finally reached the Supreme Court. We have talked about a lot of Supreme Court cases on this show, and a lot of them started months, if not years earlier in lower courts in district or state courts. What makes a case worthy of the Supreme Court?
Nick Capodice:
All right. So as we've said, district courts hear the original cases. That means they have something that's called original jurisdiction. Now, federal circuit courts here appeals, meaning they have appellate jurisdiction. But the Supreme Court is special. Here's bizarre admission.
Behzad Mirhashem:
The U.S. Supreme Court has both original and appellate jurisdiction. Its original jurisdiction is basically over a few kinds of cases, say, you know, there's a dispute between New Hampshire and Maine over where the boundary line is. And so that kind of a controversy between two states, the Supreme Court has original jurisdiction over it, but mostly its jurisdiction is appellate. It reviews cases that come to it from the lower courts. It has broad powers to basically exercise that kind of jurisdiction over cases that are deciding issues of federal law or federal constitution.
Nick Capodice:
So again, this includes cases that are coming up through the federal court, those district and circuit courts we just talked about, but also cases that may have started in the state court system, but that end up involving questions of federal law in some way.
Behzad Mirhashem:
But as you can imagine, there's like tens of thousands, hundreds of thousands of cases like that every year. And so the kind of cases that they take agree to review, generally speaking, are either cases where the lower courts have strongly disagreed. A federal appeals court may disagree with another federal appeals court. You have those kinds of splits and authority.
Hannah McCarthy:
The circuit court splits, right.
Nick Capodice:
Federal law isn't exactly federal. If different parts of the country can't agree on how that law is interpreted.
Behzad Mirhashem:
Or very occasionally, if there is an issue that they consider of such enormous importance that they decide to hear the case even before such a split has developed.
Hannah McCarthy:
Behzad mentioned that the Supreme Court could get thousands of these appeals a year, and we know it does not hear all of them.
Nick Capodice:
Not even close. The Supreme Court is discretionary. It chooses which cases it thinks need to be reviewed because for some reason, a lower court's decision wasn't enough.
Behzad Mirhashem:
There's different categories of cases. Obviously, one major category is cases arising under the federal constitution, first Amendment issues about free speech or religion, Second Amendment, gun rights, Fourth Amendment, search and seizure. So federal constitutional rights are a big part of their docket, but they also have to decide all sorts of questions of just federal law. Congress has passed the law. There's disagreement among the lower courts about what that law means. And so they're interested in important issues of, you know, federal statutory law as well.
Hannah McCarthy:
Doesn't the Supreme Court have another role as well to act as a check on power? I mean, the court is focused on all these questions of constitutional rights that are playing out all over the country. But doesn't it also have to provide a check on Congress and the president?
Erin Corcoran:
Generally speaking, the courts don't like to get involved in actions that the president or Congress are taking, usually because those are often seen as political questions.
Nick Capodice:
This is Erin Corcoran.
Erin Corcoran:
However, there are times in which either branch of government may be overstepping their constitutionally prescribed limits, and that is when the court has a vital role in checking that power to say, You President, don't have that power under the Constitution and we're going to stop you from doing that because it does violate the Constitution.
Nick Capodice:
So the Supreme Court is constantly weighing questions of constitutionality, both in cases dealing with the powers of Congress and the president and in whether to take up appealed cases from all around the country.
Hannah McCarthy:
Okay. Let's go back to Tinker V Des Moines. Right, because this is a constitutional question. Here you have students who think that the school district creating this policy is infringing on their constitutional right to free speech. So once you've figured out that your case might be a good candidate for the Supreme Court, what do you need to do to convince the Supreme Court to choose your case? Over all the other cases they have to weigh.
Nick Capodice:
You write a pitch.
Erin Corcoran:
Once they've gone to the through the circuit court level, a party can appeal and ask as a matter of discretion that the Supreme Court take on that case. That party would follow what would be known as a petition for certiorari to the Supreme Court.
Nick Capodice:
Sometimes just called a cert petition.
Erin Corcoran:
The Supreme Court votes on whether or not to hear that petition, and then if they decide to hear that petition, they will then schedule a briefing schedule and oral arguments for that.
Behzad Mirhashem:
They get many thousands of these so-called cert petitions every year, and they grant cert in a small fraction of those cases. I think it's important to understand that most people think of appellate courts as being in the business of correcting errors of lower courts. The Supreme Court has said many times they don't have the manpower to do that. There's too many errors, so they don't take cases just to correct errors. They take cases to resolve these sort of important disagreements that have emerged among the lower courts.
Hannah McCarthy:
So in Tinker V Des Moines, the students and their attorneys submitted a petition saying something like, Hey, this is a First Amendment case. We think you should consider it. And the Supreme Court said, you know what? Yeah, you're right. Is this the intense oral argument part?
Nick Capodice:
Almost before that, the two parties submit their arguments in writing. And then there are also amicus briefs.
Behzad Mirhashem:
Amicus briefs are briefs filed not by the parties, but by friends of the court, some organizations that have an interest in the issue. So the Supreme Court justices and more realistically, with the help of their clerks, review all of these briefs. And, you know, depending on the issue, they may or may not come to some sort of firm conclusion about how the case should be decided. The sort of ultimate stage is the oral argument where each side gets a limited amount of time, typically in the U.S. Supreme Court, 30 minutes to present oral argument and address any questions that the judges may have about certain issues about the record, what happened in the lower courts, or hypotheticals they may have about, you know, how would you handle this? And, you know, such and such a situation.
Hannah McCarthy:
30 minutes seems like such a small amount of time.
Nick Capodice:
And it can get pretty intense. So let's listen to some of the oral arguments from Tinker v Des Moines. In this clip, you can hear the school district's attorney, Allen Herrick, defending the decision to ban armbands, in part because students at school knew people who had been killed in Vietnam and the protest could cause disruption. And then Justice Thurgood Marshall, questioning that line of thinking.
Archival Audio:
... Felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control.
Archival Audio:
Do we have a city in this country that hasn't had someone killed in Vietnam?
Archival Audio:
No, I think not, Your Honor, but I don't think it would be an explosive situation in most, most cases. But if someone is going to appear in court with an arm band here protesting the thing that it could be exclusive, that's the situation we find.
Archival Audio:
It could be what it could be. Is that your position?
Archival Audio:
Yes.
Archival Audio:
There was no evidence that it would be. Is that the rule you want us to adopt?
Archival Audio:
No, not at all.
Behzad Mirhashem:
The practice in the Supreme Court is right after the oral argument. They need to have a discussion, take at least a preliminary vote, and then the chief justice, if he's in the majority, assigns the writing of the opinion to one of the justices.
Nick Capodice:
And if the chief justice happens to be in the minority, the most senior justice in the majority assigns the writing of the opinion.
Behzad Mirhashem:
Many decisions of the court are unanimous, but in the Supreme Court, more than other courts, you have a majority opinion and often a dissenting opinion, one or more. And then there could be concurring opinions. The judge agrees maybe with the result, but has a somewhat different take on the analysis. So such a such a justice may write a concurring opinion, and then those are draft opinions. And a lot of times, as the case moves along and these drafts get circulated among the chambers of the various justices, coalitions can shift and opinions can get edited and and out eventually comes the final product.
Hannah McCarthy:
So what happened with Tinker V Des Moines?
Nick Capodice:
The Supreme Court went in the students favor. It said that a public schools prohibition of students wearing armbands is a form of symbolic protest, was a violation of their First Amendment rights.
Archival Audio:
To freedom of speech protest so long as the protest does not disrupt order or interfere with the rights of other.
Hannah McCarthy:
Now, I think in terms of the actual people ruling, the people making these decisions, I'm curious how someone actually becomes a federal judge. Is it the same process as becoming a justice on the Supreme Court like nomination and confirmation?
Nick Capodice:
Exactly the same.
Erin Corcoran:
They are nominated by the president and confirmed by the Senate and for federal judges and circuit court judges. The current rule in the Senate is they need to have 51 or more votes in favor of them.
Nick Capodice:
But here's something interesting. The Constitution doesn't say a Supreme Court justice has to be a certain age, have a certain education, or even a certain profession. They don't have to have native born US citizenship. They just need to be trained in the law. There's no requirement that you've been a judge before. Though a lot of nominees are judges that came from lower down in the federal judiciary ladder. And Erin had one last thing she wanted listeners to take away about how our federal court system works.
Erin Corcoran:
The court's responsibility is to interpret what the law says. It's not to make new law. It's not to decide cases by what? Whether a judge thinks something is morally right or wrong. You know, oftentimes when I've talked with judges, they are confined and limited by the four corners of the statute and the four corners of the constitution. And so sometimes they have to make decisions that they don't like, but that's they're upholding their oath to uphold the Constitution and to interpret the law. And I think sometimes people think that the courts have more power than that.
Hannah McCarthy:
This episode was produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Ketsa, Bio Unit, Sven Lindvall, Frequency Decree, Nul Tiel Records, Rocky Marciano, Walt Adams and Arthur Benson. If you got a little something out of this episode and you're a fan of Civics one on one, please leave us a review wherever you're listening. We love to know what you think, what you like, but you don't, and how we can be the best little civics podcast in the world. Civics one one is a production of NHPR New Hampshire Public Radio.
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Hannah McCarthy: I've got to be honest, Nick. We've been doing this show for years now, and I still don't entirely grasp the court system. Can I say that on this show? Yeah, because we've got district courts, right? Circuit courts. Courts of Appeals. The Supreme Court. The Supreme Court. I pretty much have. But like everything else, it's. It's a tangled web.
Nick Capodice: Well, I hope we can untangle that web today, Hannah. And actually, I think it might be more appropriate to think of it as a ladder instead of a web. Because though television and movies make it seem like cases end with the judge announcing a verdict. For many cases, that is just the first step on the ladder. You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we're talking about the federal judiciary system and how a case can go from that first trial all the way up to the Supreme Court.
Hannah McCarthy: Okay. Nick, I just want to make sure I understand the difference between the federal judiciary system and the state judiciary system, because most people, if they're going to be dealing with the legal system, say a divorce or a contract dispute or even like a traffic violation, that is all happening in state court.
Nick Capodice: Yes. And to complicate it, every state has completely different laws. Federal laws are for the country as a whole. But I will say that individual state court systems do look a lot like the federal court system.
Hannah McCarthy: Like the same structure.
Nick Capodice: Right. And what we're discussing today, you know, trial courts and appeals and the Supreme Court, it's probably pretty similar to what you're going to see in your own state.
Erin Corcoran: So there's three main levels to the federal judiciary. The first is the district court level, which is the trial court level.
Nick Capodice: This is Erin Corcoran, Civics 101, talked with her back in 2019. Then she was a professor at the University of New Hampshire School of Law, and she is now the executive director for the Kroc Institute of International Peace Studies.
Erin Corcoran: And there's 94 federal district courts in the United States.
Hannah McCarthy: Pause there. We got to define it. What's a trial court?
Erin Corcoran: Sure. So a trial court hears the questions for the first time. And they're primarily concerned with working through the facts of the case, trying to understand what the different issues are and developing sort of a timeline, a sequence of events, what happens, and then also what kind of legal recourse the parties may have. If you don't like that decision, either party in the civil law context can ask for the appellate court to review the decision of the district court.
Nick Capodice: And we'll get to those appellate courts in a minute. But, Hannah, when you think of the popular depictions of court proceedings, you're most likely thinking about a trial court.
Erin Corcoran: Lawyers on either side. Usually you have a jury. People are called up to testify. It's sort of what you see in Law and Order on TV. That's the trial court.
Nick Capodice: And there are trial courts in the state judiciary system as well. But for cases involving federal law, what we're focusing on today, we've got these 94 district trial courts.
Hannah McCarthy: Are these broken up geographically somehow?
Nick Capodice: Yeah. Every state gets at least one district, including the District of Columbia and Puerto Rico. But some states with much bigger populations, they're divided into two, three or four districts. And we also have territorial courts for Guam, the Northern Mariana Islands and the U.S. Virgin Islands. Those are like district courts with like a few differences.
Hannah McCarthy: So do these district courts see every case that is not relevant to state law?
Erin Corcoran: A federal court is a court of limited jurisdiction, and they basically have jurisdiction over constitutional questions. Does this law violate my First Amendment rights, my right to freedom of speech, freedom of association? A federal district court would be the court that would hear that claim. They also can hear what we refer to as federal question claims. This is sort of Congress saying if this question is about federal law, you know, whether or not an agency has the authority to do something, that would be another example of the kind of question that that court could hear.
Nick Capodice: Hannah, you may remember a little case that we've talked about in several episodes Tinker v Des Moines.
Hannah McCarthy: Oh yeah, of course, that was the case about First Amendment rights of students during the Vietnam War. Right. There were black armbands involved.
Nick Capodice: Yeah. And if you want to do a deep dove into that case and other cases of free speech in schools, check out that episode. The link is in the show notes. But today Tinker V Des Moines is going to be our real life example of how a case moves through the federal judiciary system all the way up to the Supreme Court.
Hannah McCarthy: Let's do this.
Nick Capodice: All right. Short version, Tinker V Des Moines, 1965, Mary Beth Tinker and her brother John, along with her friend Christopher Eckhardt, wore black armbands to mourn the dead on both sides in the Vietnam War. These were worn in protest and they were suspended and they sued their school district for that suspension. And here's a quick clip of John Tinker talking about what happened when the school board got wind of their plan to wear these armbands.
Archival Audio: And the principal got a hold of the other principals in town and they had a meeting and they decided to not permit the wearing of black armbands. Then I went to classes uneventfully for the first half of the day. The first period in the afternoon there was a phone call, John Tinker report to the office. So I did and I talked with the principal of the school for a long chat, maybe 45 minutes or so, and he said that he thought maybe I'd gotten bad information or information from bad sources. I might there might have been some communist influence that would cause me to think the way I did about the war. He said that it's going to hurt your college career and so on. And at the end he said, I'm going to ask you to take off that armband. If you take it off and go back to class, it'll just be treated. Nothing happened at all, he said. But I don't think you're going to do that, are you?
Hannah McCarthy: Well, we wouldn't be talking about this case if he did.
Nick Capodice: That's right. The students were suspended. They sued the school district in the U.S. District Court for the southern district of Iowa, saying the policy against these armbands that had been created violated their First Amendment rights.
Hannah McCarthy: Aha. So this is a First Amendment case, which means it has to do with federal law and not state law, which is why it was filed in a federal court. Yes.
Nick Capodice: Yes. The district court sided with the school district and dismissed the case.
Hannah McCarthy: Okay. But we know they appealed it.
Nick Capodice: They appealed it, yeah. A party can, in most cases, appeal the decision to a higher court known as an appellate court if they think the lower court was wrong in some way. These higher courts are the next level up in the ladder. They're called the United States Courts of Appeals, also known as circuit courts. And there are 12 geographical circuit courts and one federal circuit court.
Hannah McCarthy: So how does someone know which circuit court to appeal to?
Nick Capodice: Circuit courts cover different regions, so 93 of the districts are lumped into 11 circuits, and the District of Columbia gets the circuit court all to itself, and that's known as the D.C. Circuit. And those D.C. courts cover a lot of federal legislation, given that the US Capitol is located in that district.
Hannah McCarthy: And you also said there is a federal Circuit Court of Appeals. How does that one work?
Nick Capodice: The federal circuit court, unlike the other circuit courts, it's not dependent on geography, but the type of case. So notably that federal circuit court deals with cases about patents, federal employee benefits and government contracts. When a case moves upward in the chain, any decision in the higher court takes precedent over the lower court.
Hannah McCarthy: Now, does the appellate court hear the whole case again?
Behzad Mirhashem: Most of the work of an appellate court is done in writing.
Nick Capodice: This is Behzad Mirhashem from the University of New Hampshire School of Law Civics 101 originally talked to him back in 2019.
Behzad Mirhashem: What happens is, if they agree to hear a case, then the parties submit briefs. Those are documents in which both sides present their arguments in writing.
Erin Corcoran: That appeal is less dramatic. Most of that work is done before they actually present the case to the court, and it's all done with written briefs. And then the court may have what's called an oral argument, an opportunity for each party to give an oral summation of their legal arguments to the appellate body.
Nick Capodice: A group of circuit court judges might vote to do one of four things they can uphold the lower court's ruling. They can reverse the lower court's decision. They can remand it. That's sending it back to the lower courts to be reheard. Or finally, they can modify that decision. In the case of Tinker V Des Moines, the Tinker family appealed to the US Court of Appeals for the Eighth Circuit, and a tie vote by the judges upheld the ruling by the District Court.
Hannah McCarthy: And this is where the Supreme Court comes in.
Nick Capodice: Yeah, they had one more level they could climb on that federal judiciary ladder.
Hannah McCarthy: All right. But before we get there, just a quick question. So you've got all of these circuit courts that are ruling on cases that come to them based on their geography. But what if you had a situation of two circuit courts hearing similar cases and coming up with different decisions like, say, a group of students in Florida also wanted to wear clothing in symbolic protest of war. And the circuit court covering Florida said that actually it was a violation of First Amendment rights for a school to ban students from wearing certain clothes in symbolic protest.
Erin Corcoran: I think with respect to the different circuits, because they are regionally based and geographically based, reflexively, their opinions will be different, sort of in part based on sort of what kind of cases come up through them. The circuit courts are only hearing appeals that are coming from district courts in their circuit. So, for example, if a New Hampshire judge's decision was appealed to the First Circuit and a California or Washington state judge's decision was appealed to the Ninth Circuit, the Ninth and First Circuit could in theory, have come up with different rulings. And that would be what we refer to as a circuit split where there is disagreement among the circuits. And so the decision by the First Circuit would be what everyone living in the First Circuit would have to abide by, and those in the Ninth Circuit would have to abide by the Ninth Circuit ruling.
Nick Capodice: And we all know who loves a circuit court split the US Supreme Court. And we're going to get to that right after the break.
Hannah McCarthy: But first, a warm and gentle reminder that Civics 101 is produced by a nonprofit radio station, meaning that for the most part, we sing for our supper. If you enjoy civics one on one, if you learn anything from it. I know I do. Please consider giving us a donation at Civics101podcast.org.
Nick Capodice: All right, we're back. We're talking about federal courts. And let's look back at our federal judiciary ladder real quick, Hannah. We've got district courts where trials happen. There are 94 of those spread out across the country. And then we've got the US Circuit Courts of Appeals. There's 12 of those and one federal court of Appeals.
Hannah McCarthy: Okay. I think this means that we have finally reached the Supreme Court. We have talked about a lot of Supreme Court cases on this show, and a lot of them started months, if not years earlier in lower courts in district or state courts. What makes a case worthy of the Supreme Court?
Nick Capodice: All right. So as we've said, district courts hear the original cases. That means they have something that's called original jurisdiction. Now, federal circuit courts here appeals, meaning they have appellate jurisdiction. But the Supreme Court is special. Here's bizarre admission.
Behzad Mirhashem: The U.S. Supreme Court has both original and appellate jurisdiction. Its original jurisdiction is basically over a few kinds of cases, say, you know, there's a dispute between New Hampshire and Maine over where the boundary line is. And so that kind of a controversy between two states, the Supreme Court has original jurisdiction over it, but mostly its jurisdiction is appellate. It reviews cases that come to it from the lower courts. It has broad powers to basically exercise that kind of jurisdiction over cases that are deciding issues of federal law or federal constitution.
Nick Capodice: So again, this includes cases that are coming up through the federal court, those district and circuit courts we just talked about, but also cases that may have started in the state court system, but that end up involving questions of federal law in some way.
Behzad Mirhashem: But as you can imagine, there's like tens of thousands, hundreds of thousands of cases like that every year. And so the kind of cases that they take agree to review, generally speaking, are either cases where the lower courts have strongly disagreed. A federal appeals court may disagree with another federal appeals court. You have those kinds of splits and authority.
Hannah McCarthy: The circuit court splits, right.
Nick Capodice: Federal law isn't exactly federal. If different parts of the country can't agree on how that law is interpreted.
Behzad Mirhashem: Or very occasionally, if there is an issue that they consider of such enormous importance that they decide to hear the case even before such a split has developed.
Hannah McCarthy: Behzad mentioned that the Supreme Court could get thousands of these appeals a year, and we know it does not hear all of them.
Nick Capodice: Not even close. The Supreme Court is discretionary. It chooses which cases it thinks need to be reviewed because for some reason, a lower court's decision wasn't enough.
Behzad Mirhashem: There's different categories of cases. Obviously, one major category is cases arising under the federal constitution, first Amendment issues about free speech or religion, Second Amendment, gun rights, Fourth Amendment, search and seizure. So federal constitutional rights are a big part of their docket, but they also have to decide all sorts of questions of just federal law. Congress has passed the law. There's disagreement among the lower courts about what that law means. And so they're interested in important issues of, you know, federal statutory law as well.
Hannah McCarthy: Doesn't the Supreme Court have another role as well to act as a check on power? I mean, the court is focused on all these questions of constitutional rights that are playing out all over the country. But doesn't it also have to provide a check on Congress and the president?
Erin Corcoran: Generally speaking, the courts don't like to get involved in actions that the president or Congress are taking, usually because those are often seen as political questions.
Nick Capodice: This is Erin Corcoran.
Erin Corcoran: However, there are times in which either branch of government may be overstepping their constitutionally prescribed limits, and that is when the court has a vital role in checking that power to say, You President, don't have that power under the Constitution and we're going to stop you from doing that because it does violate the Constitution.
Nick Capodice: So the Supreme Court is constantly weighing questions of constitutionality, both in cases dealing with the powers of Congress and the president and in whether to take up appealed cases from all around the country.
Hannah McCarthy: Okay. Let's go back to Tinker V Des Moines. Right, because this is a constitutional question. Here you have students who think that the school district creating this policy is infringing on their constitutional right to free speech. So once you've figured out that your case might be a good candidate for the Supreme Court, what do you need to do to convince the Supreme Court to choose your case? Over all the other cases they have to weigh.
Nick Capodice: You write a pitch.
Erin Corcoran: Once they've gone to the through the circuit court level, a party can appeal and ask as a matter of discretion that the Supreme Court take on that case. That party would follow what would be known as a petition for certiorari to the Supreme Court.
Nick Capodice: Sometimes just called a cert petition.
Erin Corcoran: The Supreme Court votes on whether or not to hear that petition, and then if they decide to hear that petition, they will then schedule a briefing schedule and oral arguments for that.
Behzad Mirhashem: They get many thousands of these so-called cert petitions every year, and they grant cert in a small fraction of those cases. I think it's important to understand that most people think of appellate courts as being in the business of correcting errors of lower courts. The Supreme Court has said many times they don't have the manpower to do that. There's too many errors, so they don't take cases just to correct errors. They take cases to resolve these sort of important disagreements that have emerged among the lower courts.
Hannah McCarthy: So in Tinker V Des Moines, the students and their attorneys submitted a petition saying something like, Hey, this is a First Amendment case. We think you should consider it. And the Supreme Court said, you know what? Yeah, you're right. Is this the intense oral argument part?
Nick Capodice: Almost before that, the two parties submit their arguments in writing. And then there are also amicus briefs.
Behzad Mirhashem: Amicus briefs are briefs filed not by the parties, but by friends of the court, some organizations that have an interest in the issue. So the Supreme Court justices and more realistically, with the help of their clerks, review all of these briefs. And, you know, depending on the issue, they may or may not come to some sort of firm conclusion about how the case should be decided. The sort of ultimate stage is the oral argument where each side gets a limited amount of time, typically in the U.S. Supreme Court, 30 minutes to present oral argument and address any questions that the judges may have about certain issues about the record, what happened in the lower courts, or hypotheticals they may have about, you know, how would you handle this? And, you know, such and such a situation.
Hannah McCarthy: 30 minutes seems like such a small amount of time.
Nick Capodice: And it can get pretty intense. So let's listen to some of the oral arguments from Tinker v Des Moines. In this clip, you can hear the school district's attorney, Allen Herrick, defending the decision to ban armbands, in part because students at school knew people who had been killed in Vietnam and the protest could cause disruption. And then Justice Thurgood Marshall, questioning that line of thinking.
Archival Audio: ... Felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control.
Archival Audio: Do we have a city in this country that hasn't had someone killed in Vietnam?
Archival Audio: No, I think not, Your Honor, but I don't think it would be an explosive situation in most, most cases. But if someone is going to appear in court with an arm band here protesting the thing that it could be exclusive, that's the situation we find.
Archival Audio: It could be what it could be. Is that your position?
Archival Audio: Yes.
Archival Audio: There was no evidence that it would be. Is that the rule you want us to adopt?
Archival Audio: No, not at all.
Behzad Mirhashem: The practice in the Supreme Court is right after the oral argument. They need to have a discussion, take at least a preliminary vote, and then the chief justice, if he's in the majority, assigns the writing of the opinion to one of the justices.
Nick Capodice: And if the chief justice happens to be in the minority, the most senior justice in the majority assigns the writing of the opinion.
Behzad Mirhashem: Many decisions of the court are unanimous, but in the Supreme Court, more than other courts, you have a majority opinion and often a dissenting opinion, one or more. And then there could be concurring opinions. The judge agrees maybe with the result, but has a somewhat different take on the analysis. So such a such a justice may write a concurring opinion, and then those are draft opinions. And a lot of times, as the case moves along and these drafts get circulated among the chambers of the various justices, coalitions can shift and opinions can get edited and and out eventually comes the final product.
Hannah McCarthy: So what happened with Tinker V Des Moines?
Nick Capodice: The Supreme Court went in the students favor. It said that a public schools prohibition of students wearing armbands is a form of symbolic protest, was a violation of their First Amendment rights.
Archival Audio: To freedom of speech protest so long as the protest does not disrupt order or interfere with the rights of other.
Hannah McCarthy: Now, I think in terms of the actual people ruling, the people making these decisions, I'm curious how someone actually becomes a federal judge. Is it the same process as becoming a justice on the Supreme Court like nomination and confirmation?
Nick Capodice: Exactly the same.
Erin Corcoran: They are nominated by the president and confirmed by the Senate and for federal judges and circuit court judges. The current rule in the Senate is they need to have 51 or more votes in favor of them.
Nick Capodice: But here's something interesting. The Constitution doesn't say a Supreme Court justice has to be a certain age, have a certain education, or even a certain profession. They don't have to have native born US citizenship. They just need to be trained in the law. There's no requirement that you've been a judge before. Though a lot of nominees are judges that came from lower down in the federal judiciary ladder. And Erin had one last thing she wanted listeners to take away about how our federal court system works.
Erin Corcoran: The court's responsibility is to interpret what the law says. It's not to make new law. It's not to decide cases by what? Whether a judge thinks something is morally right or wrong. You know, oftentimes when I've talked with judges, they are confined and limited by the four corners of the statute and the four corners of the constitution. And so sometimes they have to make decisions that they don't like, but that's they're upholding their oath to uphold the Constitution and to interpret the law. And I think sometimes people think that the courts have more power than that.
Hannah McCarthy: This episode was produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Ketsa, Bio Unit, Sven Lindvall, Frequency Decree, Nul Tiel Records, Rocky Marciano, Walt Adams and Arthur Benson. If you got a little something out of this episode and you're a fan of Civics one on one, please leave us a review wherever you're listening. We love to know what you think, what you like, but you don't, and how we can be the best little civics podcast in the world. Civics one one is a production of NHPR New Hampshire Public Radio.
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In fall of 2020 we released two episodes on the Freedom of the Press — what it means, how the media holds up their end of the bargain and what it looks like when threatened. Back then the United States rated 45th out of 180 countries on the World Press Freedom Index. That was up from 48th in 2019. Things have improved slightly in the years since but we’re republishing these episode as a reminder both of what it looked like then and what it means to rank so far behind other Western nations.
Melissa Wasser, Michael Luo and Erin Coyle are our guides.
Freedom of the Press: Part 1
Archival from case: [00:00:01] The case, of course, raises important.
[00:00:05] Difficult problems about the constitutional right of free speech and free press.
Hannah McCarthy: [00:00:15] June 13th, 1971, New York Times subscribers wake up to a story about U.S. entanglement in Vietnam. Now, at this point, we've been involved in the Vietnam War for about a decade.
[00:00:27] It was the first televised war, the first time Americans could witness the violence in real time.
Archival from Vietnam War: [00:00:33] Someone dead over there, Sergeant.
[00:00:35] Where? Hit in the crater, sir. This is the worst way to go, everyone agrees.
Hannah McCarthy: [00:00:42] And this New York Times article reveals that the Pentagon has done a study into three decades worth of U.S. involvement with Vietnam.
Archival from case: [00:00:49] On Monday, the attorney general sent a telegram to The New York Times asking them to stop and to return the document. The New York Times refused.
Nick Capodice: [00:00:59] Oh, [00:01:00] the Pentagon Papers.
Hannah McCarthy: [00:01:01] Yeah. The infamous Pentagon Papers, which revealed that the executive branch had lied to both Congress and the American people about the extent of its involvement in Southeast Asia.
[00:01:13] The report was leaked in The New York Times, wrote about it and published some of its contents.
[00:01:18] The attorney general is like, you can't do that. You have to give those papers back and stop writing about them on time said no.
Archival from case: [00:01:25] And on Tuesday, the United States uh started this suit.
Hannah McCarthy: [00:01:31] You're listening to Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:01:33] I'm Nick Capodice.
Hannah McCarthy: [00:01:34] And today we are talking about the civilian job that was so important to our framers, they enshrined it in the Bill of Rights, the free press, the very thing that hung in the balance of this Pentagon Papers case.
Nick Capodice: [00:01:48] Hold on before we take a step further. And maybe this is glaringly obvious to everyone, but what is the press?
Hannah McCarthy: [00:01:56] The press is a little hard to define these days, [00:02:00] in part because anyone can publish or broadcast anything online. But ideally, the press are people who seek out research and verify the truth and then share that truth with others, people who work for newspapers, radio stations, magazines and television networks, people who learn as much as possible about a subject and then pass all of that information on to news consumers. So those are, you know, readers, listeners and viewers who want information about the country.
Nick Capodice: [00:02:33] Ok, take me back to the Pentagon Papers.
Hannah McCarthy: [00:02:36] All right. The New York Times says, no, we are not giving these papers up and we are going to keep writing about them. It is our First Amendment right.
[00:02:44] This case went from district court to the Supreme Court in 12 days.
Nick Capodice: [00:02:49] What was the United States arguing in the case?
Archival from case: [00:02:52] On the claim, as I understand it, that the disclosure of this information would result in an immediate grave threat [00:03:00] to the security of the United States. However, it was acquired and however it's classified.
[00:03:05] Yes, Mr. Justice.
Nick Capodice: [00:03:06] An immediate grave threat to the security of the United States.
[00:03:10] That is something I feel like we hear a lot when it comes to executive privilege, that the president can keep certain conversations and events private because they're protecting national security.
Hannah McCarthy: [00:03:21] Which is exactly what the president was claiming in this case.
Melissa Wasser: [00:03:25] President Nixon claimed that he had executive authority to basically force the Times to not publish this classified information. And so the court had to kind of wrestle with the question of whether the constitutional freedom of the press by the First Amendment was less of a need than the need of President Nixon in the executive branch to maintain secrecy.
Hannah McCarthy: [00:03:53] This is Melissa Wasser.
Melissa Wasser: [00:03:54] I am a policy analyst for the Reporters Committee for Freedom of the Press.
Hannah McCarthy: [00:03:58] Nixon claims he can [00:04:00] basically suspend the Times' his First Amendment right to freedom of the press.
Melissa Wasser: [00:04:05] And that dealt with what's called a prior restraint.
[00:04:09] And so basically, the court said if you want to exercise a prior restraint on information, you want to stop it before it comes out. If you want to exercise that prior restraint, you have to make sure that there's evidence that you show that by publishing that information would cause a grave and irreparable danger.
Nick Capodice: [00:04:30] Prior restraint, by the way, means preventing somebody from publishing or saying something. So in this case, preventing The New York Times from continuing to publish about the Pentagon Papers. And also, I want to point out that grave and irreparable danger, it's not anywhere in the Constitution. That idea comes from Schenck v United States, a 1919 Supreme Court case that established that First Amendment rights could be restrained, but only and this is a big but only if their expression resulted in a, quote, clear [00:05:00] and present danger to the country.
Hannah McCarthy: [00:05:03] And in this case, New York Times, the United States, the court ruled that it was on the Nixon administration to show strong evidence of that clear and present danger.
[00:05:14] And that it had not sufficiently done so.
Melissa Wasser: [00:05:18] And so at least in that case, the Supreme Court held that The New York Times had the right to print the materials, and that's how we got the Pentagon Papers out into the world.
Interview with NYT post-case: [00:05:28] Well, my reaction was very simply one of joy, one of delight, and one of the now we'll go back to business as normal
[00:05:37] at the Times.
Hannah McCarthy: [00:05:40] The important thing to take from this case is that the Supreme Court really came at it from a strong defense of the freedom of the press clause like they can. I just have you read this quote from Justice Hugo Black's opinion?
Nick Capodice: [00:05:53] Sure let me try my best Hugo Black here...
[00:05:56] The press was to serve the governed, not the governors. The [00:06:00] government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bear the secrets of government and inform the people.
[00:06:14] So Justice Black makes no buts about it does he, the press needs to be protected.
Hannah McCarthy: [00:06:18] And he gives us the reason why, he says it right there in the opinion, the press was protected to expose the secrets of government and inform the people. If you think about the checks and balances that keep everybody honest and on track in U.S. government, the press acts as this additional check from the outside.
Melissa Wasser: [00:06:39] It's up to the press to be that accountability measure to keep the government transparent and make sure that people are always aware of what the government does. And so, I mean, the press is so vitally important, especially today, when there's been a lot of protests around racial justice. There's [00:07:00] been a full pandemic that we're currently living and working in. And people want information. People want to know what Congress does and how that affects them, especially when it comes to additional unemployment benefits or, you know, the stimulus check in the first round of the Cares Act, you know, people were really concerned.
Hannah McCarthy: [00:07:19] We know what we know about the daily workings of government because reporters ask questions, they investigate. They track bills and budgets. They keep a finger on the pulse of government, and then they pass it on to the people.
Nick Capodice: [00:07:34] I think we should point out to Hannah that a good journalist or news organization doesn't just hear about something and pass it on. They do their research. They make sure it's true before they share it. And if they can't verify it, they don't share it. And if it doesn't serve their audience, they don't put it out there.
Hannah McCarthy: [00:07:53] Yeah, that's one important thing about the Pentagon Papers to The New York Times spent weeks reading [00:08:00] that report before they decided what were the most necessary and responsible pieces of information to share with the public. They didn't just release the whole thing without context at a much lower stakes level. When I was making this episode, I didn't just speak with people and share what they said. I researched freedom of the press before and after these interviews. I even researched what our guests talked about to make sure that I could talk about it in a way that made sense. And I fact checked.
[00:08:30] And this episode went through multiple rounds of editing before it went out into the world,
Nick Capodice: [00:08:34] Because the whole point of journalism ideally is that it's serving the people. And again, I say ideally because a lot of the information that's out there is not researched, it's not fact checked or edited, but in a government that's supposed to be by and for the people, access to true information about the government is a necessity.
[00:08:54] Thus, the freedom of the press clause.
Hannah McCarthy: [00:08:57] Which is just sitting there in the middle of the First [00:09:00] Amendment right, it goes, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. The press both have a First Amendment right and disseminate the information that allows us to exercise our First Amendment rights before we go any further.
Nick Capodice: [00:09:31] And I think we should point out that you and I are beholden to this.
[00:09:37] We are members of the press, and it's not just about rights, it's about responsibility. We are supposed to find and tell the truth so people who listen to us know the truth.
Michael Luo: [00:09:50] So. So the Hutchins' Commission report is kind of considered responsible for the idea of social responsibility as [00:10:00] a notion in the press.
Hannah McCarthy: [00:10:02] This is Michael Luo.
[00:10:03] I'm the editor of newyorker.com, which means I run the online editorial operation of The New Yorker. And when I can, I try to write. Usually about politics and media.
Hannah McCarthy: [00:10:18] Michael recently wrote about this thing called the Hutchins' Commission.
Michael Luo: [00:10:21] Which was a group that met in the 1940s and produced this little book called A Free and Responsible Press. And one of the things that they talked about in the book that I think is a good summary of the importance of the press and democracy is it talks about how a free society depends on the consumption of ideas and the press is an essential component of that traffic of ideas.
Hannah McCarthy: [00:10:50] Now, this is a moment in history where publishers were huge, powerful entities and many members of the public viewed the press as self-interested [00:11:00] and corporate, you know, just trying to commercialize and get bigger. And in the 1940s, fascism was booming in Europe and Americans feared that it could infiltrate the U.S.. So you've got this existential threat and mistrust of the information being spread to the American public. So the publisher of Time and Life Magazines commissioned this inquiry into how the media can best serve democracy. This group gets together to figure out whether the press is doing its job of keeping everyone informed in order to keep democracy alive.
Michael Luo: [00:11:35] They kind of laid out a bunch of key functions of the press, things like providing a daily accurate account of the of the day's events, providing a forum for common discussion, being accessible to everyone, providing a representative picture of society. And just across the board on all of these things, [00:12:00] they were just saying that the press fell short.
Nick Capodice: [00:12:03] That doesn't sound too dissimilar to today. People are worried now about democracy being threatened and people are dissatisfied with the press, which is part of the reason why Michael wrote about this 1940s report today in 2020.
[00:12:16] And a lot of what the commission found wrong with the press are things that we still hear today.
Michael Luo: [00:12:22] A lot of the things actually they found sound familiar today, like they blame sort of the rush to scoops and sort of novelty, they called it. They blamed business interests. They blamed being the press, being vulnerable to manipulation and things like that.
Hannah McCarthy: [00:12:38] At the end of the book, the commission offered some solutions and the focus was on social responsibility. The press had a lot of power, so they had to wield that properly, give citizens the information they needed to foster a healthy, strong democracy.
Michael Luo: [00:12:54] The ultimate conclusion and the one that the one that I think is [00:13:00] still really relevant today was that it called upon the press to that the burden was upon the press itself to fix itself and to improve itself.
Nick Capodice: [00:13:08] I'm always down with self-improvement, but how does the press fix itself, especially when good journalism is often drowned out by a flood of misinformation?
Michael Luo: [00:13:18] You know, we're kind of swimming in information. We're constantly encountering information. A lot of people actually do not on social media, not go on looking for news, but they kind of bump into it. And the question is like, how much news can you actually absorb like that?
Hannah McCarthy: [00:13:33] Michael has thought a lot about what would help us be more informed citizens. And for him, one potential answer is journalism with more context that goes more in-depth and that is consumed more slowly, which is tricky. Right, because how do you convince people to basically eat their vegetables when there's so much candy out there? How do you convince news organizations to grow vegetables when candy is [00:14:00] the thing that sells and selling is what supports the news?
Nick Capodice: [00:14:05] First off, roasting vegetables instead of boiling them. That's a good start, but really making them more enticing.
Hannah McCarthy: [00:14:14] What I find really fascinating about all of this is that our understanding of freedom of the press and how it's tangled up in social responsibility, that is something that happened over centuries of journalism. We can't know for sure what the framers meant. Right. But we created a very weighty freedom and obligation out of that clause in the Bill of Rights. I want to introduce you to one more guest here.
Erin Coyle: [00:14:37] Hello, I'm Erin Coyle. I am an associate professor at Temple University in Philadelphia. And I teach journalism, law and ethics and journalism, writing and reporting. My research focuses on freedom of expression.
Hannah McCarthy: [00:14:54] I asked Erin, you know, we know, for example, what Justice Hugo Black thinks [00:15:00] the framers meant by not abridging the freedom of the press. But what did the framers say they meant?
Erin Coyle: [00:15:05] They were probably thinking more about the word liberty and freedom at that time. From what my reading shows. And the press was different then than it is now. So scholarship really indicates that at that time they were thinking about printers and there was a history of having government censorship of printers, meaning that to be able to print and distribute information, people would have to get permission from some government authority to be able to print and distribute the information.
Hannah McCarthy: [00:15:47] And that, of course, is an easy way to control what citizens are allowed to learn. If the government can say something cannot be printed, then it cannot be distributed. And that means any number of things [00:16:00] will never come to be known by the public.
Nick Capodice: [00:16:02] It was actually a pretty vulnerable choice for the framers to make when you think about it, preventing ostensibly for all time the people in charge from limiting what gets said about them. But then again, those same men had recently printed an attack on their own government by way of the Declaration of Independence when they wrote this amendment.
[00:16:20] So our nation really began with a form of press freedom.
Hannah McCarthy: [00:16:24] That's both really important and pretty basic freedom of the press and journalism means a lot more today. It means journalists are protected from certain retaliation. If they report on the government, it means a reporter can request information from and about the executive branch. It even means that a news team should be allowed to determine what they report on without the business interests of their organization getting in the way. I asked Erin where all of that came from.
Erin Coyle: [00:16:56] So some of this comes from journalists. The notion of [00:17:00] independence and financial independence comes from journalists. We can't have something like that coming from the government because of the First Amendment. But the discussion of press freedom is really different today than it could have been in the eighteen hundreds. For one thing, the Supreme Court really addressed press freedom as something that could be applied to protect journalists against state laws as well as federal laws.
[00:17:35] For the first time in the early 1960s.
Nick Capodice: [00:17:38] It seems like, as freedom of the press has been strengthened in the courts, so too has the responsibility of the press to exercise itself responsibly. Like, if you're demanding access and protection, you have to do it in part on the basis of serving democracy.
Hannah McCarthy: [00:17:58] I talked earlier about journalism [00:18:00] being about not simply publishing or sharing a piece of information, but about sitting with that information, making judgment calls, about whether it's a helpful, safe thing to share journalism, freedom of the press, social responsibility to support an informed citizenry. It's not just about what we do print or broadcast.
Erin Coyle: [00:18:22] It's also about what we don't is one point that isn't often talked about with New York Times versus the United States.
[00:18:32] Well, journalists from The New York Times took weeks to carefully go through those documents and took their time to find out are these valid? Is this real information? And they didn't just put everything online like we would today. They didn't print an entire classified report. They [00:19:00] selected the information that was most important for information. No, journalists make really important decisions and we trust journalists to be working for the public's interest. And there are times that means that we have to consider people's safety.
Hannah McCarthy: [00:19:25] I think my biggest takeaway from all of these discussions is that the press is powerful.
[00:19:30] The framers made the press powerful by giving it the freedom to print without requiring permission. And the press and the courts over time made the press even more powerful. And such as that, power grew, so did our responsibility.
[00:19:45] We taught our readers, listeners and viewers to expect certain things from us. So what does that mean in an era of widespread protest, fake news and a worldwide pandemic? [00:20:00] Check out part two of freedom of the press to see if I can rise to that responsibility.
[00:20:19] This episode of Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jacqui Fulton. Erika Janik exercises a lot of prior restraint when it comes to dealing with our shenanigans. We have long-planned to find a way to answer listener questions directly, and we have finally done it. We've got a new thing called Ask Civics 101. It's broadcast here in New Hampshire every Monday and goes into our podcast feed every Friday. It's simple, you email or tweet us a question and we find the answers and make you an episode. We're all just trying to figure out how things work around here. Civics 101 is supported in part by the [00:21:00] Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.
Freedom of the Press: Part 2
Adia Samba-Quee: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.
CNN Arrest footage: [00:00:37] Wherever you want us, we will we will go, we are just getting out of your way when you were advancing through the intersection.
Hannah McCarthy: [00:00:42] So have you seen this clip, Nick?
Nick Capodice: [00:00:45] Yeah, I've seen it.
CNN Arrest footage: [00:00:46] I'm sorry, Your Honor. OK, do you know why I'm under arrest, sir? Why? Why am I under arrest?
Hannah McCarthy: [00:00:53] This is the end of May of this year. Twenty twenty. During protests in Minneapolis following the police killing [00:01:00] of George Floyd, a CNN television crew was arrested by police as they were filming. So this is on live television.
CNN Arrest footage: [00:01:09] We're all about to be arrested. That's our producer.
Hannah McCarthy: [00:01:13] Officers said that the crew refused to move, even though you hear them offer to move or they later released the crew after learning they were news media, even though the crew told them they were news media.
CNN Arrest footage: [00:01:25] Right now on live television in handcuffs. I've never seen anything like this.
[00:01:32] I'm being arrested now.
Hannah McCarthy: [00:01:34] So I watched this and I was like, OK, well, what about the First Amendment? Isn't that a violation of the freedom of the press?
CNN Arrest footage: [00:01:46] The police are now saying they're being arrested because they were told to move and didn't.
Hannah McCarthy: [00:01:55] This is Civics 101, the podcast refresher course on the basics of how our democracy works. [00:02:00] I'm Hannah McCarthy.
Nick Capodice: [00:02:01] I'm Nick Capodice.
Hannah McCarthy: [00:02:02] And this is part two on Freedom of the Press. And it's a murky one because, well, press freedom can seem a little tenuous these days.
Melissa Wasser: [00:02:11] In 2020 alone.
[00:02:13] One hundred and eighty eight journalists have been attacked, 60 of them have been arrested.
[00:02:18] This is Melissa Wasser, a policy analyst with the Reporters Committee for Freedom of the Press.
Melissa Wasser: [00:02:24] There's been many damaged equipment searched in search and seizure of that equipment.
[00:02:30] And during the Black Lives Matter protests alone this summer, over 740 reported aggressions against the press. We saw it in Minnesota when the CNN crew got arrested, we see it at rallies by the president where he could say something negative and kind of fanned the flames.
[00:02:51] And you see the crowd reacting to the highest office holder in the land saying these people are fake news. [00:03:00] They're not giving you the real information.
Trump: [00:03:02] Fake news, fake news. They are fake.
Reporter at Trump rally: [00:03:06] You can hear there is a chorus of those and other chants of this Trump crowd here in Tampa, Florida, they're saying things like saying I'm. Go home and fake news, Wolf. Obviously, all of those things are false. We're staying right here. We're going to do our job and report on this rally to all of our viewers here tonight.
Nick Capodice: [00:03:24] Hannah to your question. Is it illegal to, for example, arrest the press while they're working? Was that a violation of First Amendment rights?
Erin Coyle: [00:03:33] Well, the First Amendment doesn't protect us against breaking laws.
[00:03:39] There is a circuit court opinion that says that the First Amendment is not a license to trespass or steal. I can't say I'm a journalist, so I'm going to go steal all of the information to write this article.
[00:03:54] This is Erin Coyle, a media law and history of journalism professor at Temple University. So [00:04:00] when it comes to restricting the press, her point is that journalists don't necessarily have special privileges. The freedom of the press clause says simply to sum it up, Congress shall make no law abridging the freedom of the press. And in fact, the Supreme Court has had a fairly narrow reading of that clause. For example, there's a case called Houchins versus KQED, Inc. The court ruled that the press did not have the right to enter a jail, to film that the press had the access that the public had, and that was it.
Erin Coyle: [00:04:37] And these things can become really challenging when covering a live event. For instance, when I was living in Baton Rouge several years ago, there were journalists who were they were charged under a law that allows arrests [00:05:00] for impeding traffic on a state highway and just accidentally having one foot go on to that state highway. One instance was seen as you're impeding traffic, you broke the law. We're going to charge you. The First Amendment law related to access essentially says that the access rights that journalists have are there because they're the public's rights. And we get to go where the public could go so we don't get special treatment to be able to step into a highway and tell traffic to stop because we could get a better photograph or better video from being at that angle.
Nick Capodice: [00:05:50] I hear her, the press can't be breaking the law to do its job, but isn't the whole point of the press to witness and report on what's going on so [00:06:00] the American people know what's going on? How can they do that? In other words, what makes them a free press if they can be arrested while doing their job?
Erin Coyle: [00:06:09] It's very disappointing to see how journalists are being treated. It's disheartening to see journalists getting injured and having to wear body armor and gas masks to go do their jobs. And very disappointing to see journalists getting arrested for covering protests. And yes, I read the arguments that, well, the law enforcement couldn't tell who's a member of the press and who is a protester.
[00:06:42] I think the key question there is where members of the press doing anything wrong.
Hannah McCarthy: [00:06:46] This is what really clinches it for me, because if we look back at that CNN tape, for example, the cops are saying back off and the reporter saying, OK, yeah, we'll go wherever you want, but then they get arrested anyway. Or when [00:07:00] it comes to curfew and mobility orders, basically the governor saying get off the streets by 6:00 p.m. You can't go here, here, here.
[00:07:07] Well, many states explicitly build media exemption into that.
[00:07:12] But that hasn't necessarily mattered lately.
Press covering protests: [00:07:16] We're news media hour news media, head out, media is exempt from curfew.
Hannah McCarthy: [00:07:38] Here's Melissa again.
Melissa Wasser: [00:07:40] We found that most most Americans believe a free press is super important.
[00:07:45] They know it's the First Amendment.
[00:07:47] They can name it in the in the five freedoms, but they don't see why it's at risk. And that's really troubling.
Nick Capodice: [00:07:58] Just to jump in for a second, when Melissa says [00:08:00] the five freedoms, she's referring to the five freedoms enshrined in the First Amendment, they are religion, speech, assembly, petition and of course, press.
Melissa Wasser: [00:08:11] There have been signs over the past few years that, you know, it is under attack.
[00:08:18] I mean, the most serious, right, has been the murder of the journalist at the Capital Gazette in direct response to their reporting about the shooter.
[00:08:30] We've seen during the protests. They've been pepper sprayed and tear gassed. They've received death threats. How many we saw those hoax bomb threats at CNN. They if we also think about women and people of color and queer journalists online, the amount of online harassment that journalists get, I mean, there's signs all around us and it can and it consistently gets worse and worse and worse.
[00:08:58] And I think there needs to [00:09:00] be even more general awareness that these are the signs that, you know, freedom of the press is kind of slipping, at least in the United States.
Nick Capodice: [00:09:09] But did Melissa or Erin say why this is happening now? I know you've got a debate about what the press is actually free to do, but this is more than that. What has caused press freedom in the United States to slip?
Erin Coyle: [00:09:24] We can see patterns of presidents being very upset with the press throughout history.
Hannah McCarthy: [00:09:30] Yeah, when the president doesn't like or respect you, well, good luck getting other people to.
[00:09:37] It's the job of the press to find and tell the truth about people in power. And they do that by assembling information, gathering data, talking to witnesses and experts and then conveying an account of what they found and what it means and that much scrutiny, that intense analysis of what you do and say and how it affects people. Well, [00:10:00] who would want that?
Erin Coyle: [00:10:38] It's just human nature to want to defend ourselves if we see something nasty about us and put it out, and it's no wonder to me that people get upset when that happens. So part of this is probably just part of human life. But [00:11:00] also, I was listening last week to a tape recording of President Nixon being very upset with The New York Times and using some colorful language about why he wasn't going to talk with anyone from The New York Times because he was angry with news coverage.
Richard Nixon: [00:11:22] If I were going to give an interview to people, Why would I give it to a newspaper man anyway. Give it to a television man. Darn right. He will never be in my office as long as I'm president. Never. And no man from the Times will ever be in my office as long as I'm President. It isn't worth it. Agreed? I sure do. That's it.
Nick Capodice: [00:11:46] But it's not just the people in power who are wary of the press these days, it's also the people who aren't even necessarily being written about members of the public who have a negative perception of media.
Erin Coyle: [00:11:57] So I think today it's [00:12:00] very concerning to have these discussions about can there be trust in journalists today when people are hearing the term fake news and when fake news gets applied to something often on an emotional basis rather than on a basis of whether something is accurate or not, that contradicts what we teach journalism is supposed to be. Journalism is supposed to be accurate, and sometimes people are not going to like the truth.
[00:12:37] Erin reminded me that, of course, there was a world of print media before the First Amendment. And in that world, truth was not a defense against a claim that something was a lie. Like with libel cases, libel is printing something false about someone that can damage their reputation.
Nick Capodice: [00:12:58] Hold up. I want to make [00:13:00] sure I understand you here. You're saying that the truth was not a viable defense against a claim that something is libel?
[00:13:09] Well, in this case, seditious libel. Sedition is anything that inspires or causes people to rebel against a state or a monarch. And under English law, seditious libel was illegal before we had the First Amendment.
Erin Coyle: [00:13:27] As we know it now, printers were published for seditious libel and seditious labels essentially made people in power or authority and the government look bad or hurt their reputation. And under seditious libel laws, the greater the truth, the greater the libel. It wasn't until the 17th thirties that their notion was accepted that truth could be a defense for libel. And [00:14:00] that didn't come from the law. That came from a very persuasive argument that jurors in the colonies accepted the seditious libel laws still existed after the seventeen thirties.
[00:14:16] It just wasn't very likely that people in the colonies were going to support punishing truthful criticism of a government authority.
Nick Capodice: [00:14:32] Truthful criticism of government authority. So basically you're allowed to say something negative as long as it's backed up by evidence.
Hannah McCarthy: [00:14:41] Yeah, and within that, it's important to recognize what is a statement of opinion and what is a statement of fact. There's a lot of opinion out there right now, some of it based on fact and some of it based on it. Kind of nothing. Give me an example you're talking about. All right. So if someone writes that graph, for example, covid-19 [00:15:00] could have been handled better in the United States. They're basing that opinion on caseloads and the responses of people in power to the virus. Right. But if someone says that testing people for the virus is what leads to more cases, that is something based on paranoia and fear. Maybe not science or fact. And because of the Internet, because anyone can say anything and we can all read it, there's more stuff out there than ever. And these days, when that opinion is made public, especially if it's an opinion about somebody, you might hear it and dismiss it as fake news, especially if you don't like it. And then you might take it a step further and say that the media outlet itself is fake news.
[00:15:47] So when we're calling things fake news, that can end up being really confusing. I mean, how do we know what is fact or not?
Melissa Wasser: [00:15:54] People are smart. They they know where they want to be able to turn for news.
[00:15:59] I [00:16:00] think sometimes people kind of get tripped up between what is news and what is opinion. And it's not invalidating any network or paper or anything like that.
[00:16:11] But sometimes, you know, there's people who are reporting the news and reporting the story directly to people, whether that's, you know, photojournalists or writing news articles online or giving them directly on broadcast or what you're doing on radio.
[00:16:27] You know, it's it's important that people understand the factual stories. But there's also people who give opinions about different things on both sides, across the political spectrum. And when people don't agree with the story that they're hearing, they might think, oh, they don't like the president, they don't like Congress, they don't like my state governor. They're fake news.
[00:16:52] And it is so it really does kind of like weaponize that term and demonize the press.
Nick Capodice: [00:16:58] So, Hannah, with the acknowledgement [00:17:00] that you and I are members of the press, this demonizing of the press feels like it could have seriously negative consequences. One of the reasons the framers enshrined that free press in the Bill of Rights is in part that they saw what could happen if the goings on of government were kept hidden from the people. This idea that sunlight is the best disinfectant, as they say, that exposing potential corruption and bad deeds is the best way to stop corruption and bad deeds from happening in the first place. The press is ideally there to protect democracy.
[00:17:34] But if we don't trust the press or we call the truth lies, then we're not actually aware of what's going on anymore.
Erin Coyle: [00:17:41] A society in which people know enough about our government to be able to have a say, to have informed discussions and debates, to cast informed votes.
[00:17:55] We need journalists out there doing their job. Journalists [00:18:00] are out there representing all of us, going to the trials. We can't take off work to go to going to protests that we might not be healthy enough to go to taking those risks to provide us with information.
Hannah McCarthy: [00:18:20] Erin brought up this one point that I think is pretty important, that it's not just that the public may feel they can't trust journalists. It's also that a government opposed to the press may result in a press that's afraid of the government.
Erin Coyle: [00:18:35] One of the concerns that arises when talking about freedom of speech and freedom of the press is that some government actions can be a deterrent. And there are some instances in which. The. Potential punishment or potential fine would be so [00:19:00] great that people might not be willing to address that topic. It's just too much risk to be able to take to be able to address that specific topic. And that's called a chilling effect.
Nick Capodice: [00:19:20] I wasn't aware of the term chilling effect until I took a class on the First Amendment in college, but yeah, it's it's a big deal.
[00:19:27] It's basically censorship, discouraging the exercise of legitimate rights and in this case, the freedom of the press with legal threats.
[00:19:37] Like the threat of a lawsuit or the threat of a passage of a law that's basically intimidating to the point that it prevents people from exercising their rights.
Erin Coyle: [00:19:45] When we think about the tradition of press freedom and societal expectations for press freedom. It's hard to believe that there are not a set chilling effects that could [00:20:00] be occurring right now because of journalists being called nasty things or people engaging in intentional intimidation of the press. Those are very important factors for us to consider and to address.
Nick Capodice: [00:20:18] So here's where we're coming back around to a principle that we talk about a lot on the show, which is that it doesn't really matter what's written in the Constitution or our laws and statutes if we don't uphold it and protect it, and that the government can basically do whatever the government wants to do.
[00:20:37] If we want to stop or change that, we need to do something about it. But we definitely can't do something about it if we don't know what's going on. So what do we do?
Melissa Wasser: [00:20:48] You know, there are ways to to fix these things, including not demonizing the press to make sure that journalists are protected when they go to do their jobs from assault, arrest and threat of retaliation. [00:21:00]
[00:21:00] And that could be at the federal level through a bill in Congress or at your state level or even local level with local city councils or mayors signing executive orders. You know, it's it's a full level. It's it's at all three levels.
[00:21:15] And so I think it is in front of them. And maybe sometimes people are turning a blind eye and not realizing how threatening these little acts are until they all add up and then it'll be too late. So I think it's really changing the hearts and minds of people, too, to see why these all constitute risks to press freedom.
Hannah McCarthy: [00:21:39] I think the bottom line is that it's not really about whether you agree with the news or coverage of the news, the publishing of provably true information about our government and communities is necessary to maintaining a healthy democracy.
[00:21:57] That's how we make sure the Constitution is [00:22:00] actually upheld. Not liking what we learn about our government can actually be a sign that good journalism is being done. And there's a reason that we say knowledge is power. And in American democracy, it's one of the few true powers that we, the people have.
[00:22:35] Our listeners are what make us us if Nick and I were just shouting into the void with no curious, skeptical, civic minded people out there to hear us, well, we would just have to close up shop. But here you are letting us bend your ears and joining us as we try to figure out how this democracy works. It's our privilege and delight to offer this to you for free. But [00:23:00] the one snag is that Civics 101 is not free to make while the team here mostly subsists on civic pursuit. We do also need money to survive and equipment and all sorts of other stuff that comes at a cost that Nick and I are blessedly spared the details of. But my point is, if you like Civics 101, if you find it useful, if you want us to keep going and to join our efforts to maintain a healthy democracy here in these United States, please take a moment and donate to Civics 101. We believe there's power in understanding how this country works. With your help, we can keep figuring it out and sharing it with you. Check out the donate link on our home page at Civics101podcast.org.
[00:23:51] That does it for this free press today. This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jackie Fulton. Erica Janik, [00:24:00] besides the five freedoms before every meal. Music in this episode, by broke for free, blue dressed man, Lee Rosevere and Daniel Birch, Scott Gratton, Ikimashoo Aoi and spectacular sound productions. You may have noticed that we have this new thing we're doing, by the way, called Ask Civics 101. You ask us about what's going on in this ever evolving democracy. And we make you and everyone else a short and sweet episode answering that question. So if you've got a burning query about our government or politics, you can email us at Civics 101 at any nhpr.org and we will get cracking and ask Civics 101 just for You. Civics 101, supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.
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The blocking of a majority-Black congressional district in Alabama. OSHA regulations requiring vaccinations or a negative COVID test result. A law in Texas banning abortions after six weeks. All of these controversial issues were decided not through the tried-and-true method of a hearing in the Supreme Court, but rather through a system called "the shadow docket," orders from the court that are (often) unsigned, inscrutable, and handed down in the middle of the night. Professor Stephen Vladeck takes us through this increasingly common phenomenon.
Note: The following transcript is machine-generated and may contain errors
Nick Capodice: And the more shows we do, the more it feels that the wheels of government are powerful but slow. So if you want to get something done, the reason perhaps you decided to get involved in politics in the first place, it might be easier to just use a shortcut. You don't want to write a bill cut and paste from another.
Hannah McCarthy: One states because I didn't realize just how many copycat bills there are out there right now.
Nick Capodice: You don't want to go through the rigamarole of amendments in a House vote. Do it under suspension of the rules. Mr. Speaker, I moved to suspend the rules and pass HR 2663. You want to pass a bill in the Senate without debate, without filibuster? Do it under unanimous consent.
Speaker3: I ask unanimous consent that the Senate consider the following nomination calendar numbers.
Nick Capodice: Five 3434. Oh, you're the president and you just don't want to involve Congress at all. Just sign an executive order. I'm on executive order, and I pretty much just happen. But the one entity that was, to my knowledge, unable to use shortcuts was the one which determines how the Constitution applies to us. America's final arbiter, the Supreme Court.
Hannah McCarthy: And let me guess how wrong that you were.
Nick Capodice: How wrong was I?
Speaker4: Hi again, everyone. It's 5:00 in New York following the Supreme Court's refusal to block Texas's new law that all but bans abortion in the state. There's been a barrage of criticism and harsh scrutiny over the Supreme Court's shadow docket.
Nick Capodice: You're listening to Civics one on one. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we're talking about the shadow docket, Supreme Court decisions that we know very little about.
Stephen Vladeck: Justice Amy Coney Barrett gave a speech in April at the Ronald Reagan Presidential Library where she said, you know, you guys think we're all partizan hacks, but like, don't just read the media, like, read our opinions, you know, decide for yourselves.
Hannah McCarthy: It's also perfectly fair game to say that the court got it wrong. But I think if you're going to make the latter claim that the court got it wrong, you have to engage with the Court's reasoning first. And I think you should read the opinion and see, well, does this read like something that was.
Stephen Vladeck: Purely to which my response is great. What if there's no opinion to read?
Nick Capodice: This is Steven Vladeck. He holds the Charles Allen Wright chair in federal courts at University of Texas School of Law. He has a book on the shadow docket coming out spring of 2023. He has also testified before the Senate Judiciary Committee on the shadow docket.
Hannah McCarthy: And this is quite the introduction.
Nick Capodice: I promise it's worth it. And he has argued in front of the Supreme Court three times.
Hannah McCarthy: How'd he.
Stephen Vladeck: Do?
Nick Capodice: 043043. Quick, funny. Civics aside, the first time he was in the Supreme Court, Justice Anthony Kennedy threw him the heaviest curveball ever. Do you think Marbury versus Madison is right? But particularly as to.
Hannah McCarthy: That is a hilarious and impossible question to answer before the Supreme Court. And the reason it's hilarious is because Marbury versus Madison is the case where the Supreme Court gave itself the power to rule on constitutionality. So it's like the case that defined what the Supreme Court is. Okay, but let's get back to the shadow docket. What does this term mean?
Stephen Vladeck: The term was actually coined in 2015 by a professor in Chicago named Will Bode. And it's not meant to be nefarious. It's really an umbrella term that's supposed to cover basically all of the stuff that the US Supreme Court does. Other than the big fancy merits rulings that it hands down every year. So we spend a lot of time every May and June talking about big rulings on affirmative action, abortion, same sex marriage, guns, campaign finance. You know, pick your favorite socially divisive issue.
Hannah McCarthy: We've done, what, like 15 episodes on socially divisive Supreme Court decisions?
Nick Capodice: Yeah, like more maybe from Dred Scott to Roe to Tinker to Citizens United. These massive decisions that affect our daily lives. And we love learning about those. We love talking about those. And as each spring comes to a close, as May turns into June, the nation waits with bated breath to see those new rulings come down.
Speaker4: We have breaking news from the Supreme Court. It is a landmark decision for the LGBTQ community. The justices ruling that it is illegal for workers to be dismissed from.
Stephen Vladeck: And the reality is that those 60 to 70 rulings are a tiny fraction of the Supreme Court's total workload, that most of the work the court does is through unsigned, unexplained summary orders that are public. So it's not like they're inaccessible, but they're inscrutable. I mean, you know, even with a law degree, it's hard to figure out what to make of them. And, you know, when Professor Bode coined the term in 2015, he wasn't trying to suggest that anything especially nefarious was afoot. Rather, his point was just that we ought to be paying more attention to that side of the court's work.
Hannah McCarthy: So when we use the term shadow docket, we're talking about work that the Supreme Court does. That's not the tried and true ruling on an opinion.
Nick Capodice: Yeah, and Supreme Court justices have been doing this work since the beginning of our nation. And just to be clear, I want to put air quotes around the term shadow docket. Not everybody uses that term. Justice Samuel Alito has actively criticized it, saying the term insinuates something sinister.
Hannah McCarthy: But it is a relatively new term because I haven't heard of it before. Why are we suddenly talking about this now?
Nick Capodice: Right. So the court has stepped in to decide things on an emergency basis for a long time. I've got some famous examples. In 1953, the court stepped in to halt the execution of Ethel and Julius Rosenberg, who were convicted of espionage and then allowed it to continue the next day. Likewise, Justice Stephen Douglas ordered a halt of bombing in Cambodia in 1973, but then he was soon overruled by the whole court. These were both shadow docket orders. But to your question, we're talking about it a lot more now because there has been a big increase in orders of the court that are political in nature, not just sort of run of the mill procedural stuff.
Hannah McCarthy: Well, how does that look? How does shadow docket decisions differ from the ones that we've talked about before.
Nick Capodice: The kinds of cases that we watch out for and talk about on the show? Those are called merits cases. And just to juxtapose the difference between that and the shadow docket. Let's go through the journey of a Merritt's case. Hannah, you broke the law.
Hannah McCarthy: What did they do?
Nick Capodice: You know what you did. You did something you shouldn't have, and you were fine.
Hannah McCarthy: I did something I shouldn't have.
Nick Capodice: Hypotheticals are very difficult. You argue that the thing you did is speech. It's protected by the First Amendment and that the law you broke is unconstitutional. So it goes to one of the 94 federal district courts. Lawyers do research. Your case is argued, you lose. But you're a fighter, Hannah. You don't give up so easy. You appeal it up to the circuit court and hear lawyers write briefs, wonderful, succinct documents outlining their legal reasoning. Three judges read those briefs. They have lawyers in. They ask him some questions, and then they affirm the lower court's decision. They say, Yeah, that law is legit and constitutional. Hannah, you shouldn't have done what you did, and you deserve that. Fine. But you don't take that sitting down and your lawyer petitions for a writ of certiorari, asking the Supreme Court to hear your case. Now they get about 8000 cert petitions every year. They only pick about 60. The odds are not in your favor. But lo and behold, four out of nine justices agree. Yeah, we need to weigh in on that McCarthy case. It's scheduled to be heard in the highest court of the land. You've got more briefs. You've got Amichai Friends of the court brought in to testify. There's an hour long argument. Justices deliberate. And then when May finally rolls around, they read their opinion. You see how each justice voted. And the whole thing took a couple of years.
The court will now read its opinion in the case of McCarthy of Braintree, the question of determining speech actions, especially related to those who host public radio podcasts, is complex and worth lengthy consideration.
Nick Capodice: By contrast, what we call a shadow docket ruling would be that a party could skip that entire process by appealing directly to the Supreme Court to issue an emergency order. No arguments, no opinion, no signatures, just an order sent late at night.
Hannah McCarthy: Like it actually happens late at night.
Nick Capodice: Not always, but often. Yeah.
Stephen Vladeck: There was this pattern, especially, gosh, in 2020, 2021, where we had like 10 p.m., 11 p.m., 11:58 p.m., 2:17 a.m.. I don't think that's, you know, to me that's not the hill to die on. Like, yes, they come out late at night if everything else was fine about them. The fact that come out late at night would not be a problem. But I think it reinforces how much of a departure it is from the court's normal operating procedure to be handing down orders like this outside of that flow. So the the joke about the book is that, you know, if I'm really being faithful to everything, the book will be one inscrutable page handed down at 11:58 p.m. on a Friday night, but I don't think my publisher is going to go for that gag.
Hannah McCarthy: What sorts of cases do they decide this way?
Nick Capodice: Stephen gave me a few recent examples. Yeah.
Stephen Vladeck: I mean, so, you know, last September, when the Supreme Court refused to block Texas's controversial six week abortion ban, that was on the shadow docket, you know, in January, when the court blocked the Biden administration's OSHA rule to require large employers to have a vaccinator test requirement that was on the shadow docket in February when the court put back into effect congressional district maps in Alabama that two different lower courts had held to violate the Voting Rights Act. That was on the shadow docket. So, you know, we're just seeing so many more of these decisions that are producing immediate, massive, real world effects that the justices are handing down. You know, not always without explanation, but with far less explanation, with far more truncated explanations, and in context in which at least historically, they weren't supposed to issue relief, they weren't supposed to upset the apple cart unless particular things were true. That don't appear to be true. So we're seeing just this. It's no one thing by itself. It's the rise of so many more of these rulings, having so many so much broader effects in context that are both inconsistent and increasingly in seeming defiance of the court's own rules for what it's doing.
Nick Capodice: And we're going to get into what people see as problems with the shadow docket, as well as some numbers on how much more prevalent these decisions have been in the last few years right after the break.
Hannah McCarthy: But first, Nick and I just want to tell you that civics one on one is listener supported. If you like our show and our mission to simplify the tangles of governmental systems, make a donation at our website civics101podcast.org. We don't mind if you do it late at night. All right, we're back. And we're talking about the shadow docket. So, Nick, you said these sorts of emergency decisions have been happening for hundreds of years, but lately there has been a big increase. Like, how big are we talking.
Nick Capodice: During the George W Bush and Barack Obama administrations combined? We're talking about 16 years total. There was a grand total of eight cases where the federal government appealed directly to the Supreme Court for emergency relief. But in the Trump administration.
Stephen Vladeck: In four years, the Trump administration went to the Supreme Court 41 times. Now, folks disagree about whether that's because lower courts were out to get Trump or because Trump's policies were terrible. Right. Shockingly, that tends to break down on how you feel about President Trump. But what no one can dispute is how much that turbo charges stems and how much that really sort of ratcheted up the pressure on the shadow docket when the federal government, the most common influential player in the Supreme Court. Right, is going back to the well over and over again, asking the justices for this kind of relief.
Hannah McCarthy: You know, one of the most controversial decisions that Stephen mentioned was the court's refusal to block Texas's six week abortion ban.
Nick Capodice: Making news out of the Supreme Court. The Supreme Court has issued an opinion on that major abortion case out of Texas. The justices by a conservative majority have decided to allow that law in Texas, which effectively bans nearly all abortions in that state to remain.
Hannah McCarthy: But to me, there's a major difference here, because that's not the court doing something. That's the court not doing something. Can we consider inaction the same as action when it comes to the shadow docket?
Stephen Vladeck: The problem is, is that if the court had not spent the previous year reaching out over and over again to block California and New York COVID restrictions in context in which historically the court had sat on its hands right then. I think the SB eight rule and the Texas abortion ruling from September would be a lot more defensible. But when the court says over here, we're going to intervene over and over and over again in context where we never have before, and the context in which we probably aren't even allowed to. But over here we're not going to intervene because our hands are tied by the same things that we weren't bound by in those other cases.
Hannah McCarthy: You know, when we talk about members of the Supreme Court doing things that fall in line with one party or another, I'm reminded of a quote that you used in your episode on the judicial branch. It was said by Chief Justice Roberts, quote, We do not have Obama judges or Trump judges that we have an independent judiciary.
Stephen Vladeck: Well, and the irony is and Chief Justice John Roberts line about how there are no Obama judges and there are no Trump judges. Was in a case the court resolved through a shadow docket order.
Nick Capodice: But regardless, I'm very glad you brought up Roberts, because one of the arguments made in favor of these shadow docket decisions is, hey, you're just angry because we have a conservative majority court, right? If it was five four the other way, progressives would totally be fine with it. But Roberts demonstrates that isn't necessarily true.
Stephen Vladeck: I actually think the chief justice is a really remarkable figure here, because John Roberts, who is no one's idea of a liberal. Right, who is a dyed in the wool establishment Washington conservative, has been this fascinating player as the court's center of gravity has shifted. So when Anthony Kennedy was still on the court and Kennedy was the median vote. Roberts We very rarely saw Roberts as the key player in a shadow docket ruling.
Nick Capodice: But once Justice Kennedy retired in 2018, Roberts became that median vote. And where he went, so too did the court.
Stephen Vladeck: And what that meant was that in the early part of the COVID cases, where there were these claims for, you know, religious liberty challenges to COVID restrictions, Roberts Was the key vote in joining the liberals and not allowing those challenges. And what he kept saying over and over again, it's not that I. Roberts am unsympathetic to these claims. It's that these are this is not the context for vindicating them that we should not be using emergency orders to reach these hard, difficult, challenging questions. You know, those should be merits cases.
Nick Capodice: And as a result, those challenges did not go through. They just weren't successful. But in September of 2020, Justice Ruth Bader Ginsburg passed away, intends to pick this woman as his Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. Her name is Amy Coney Barrett. She met with the president at the White House Monday.
Stephen Vladeck: So when Justice Barrett is confirmed to replace Justice Ginsburg, Roberts is no longer the median vote. And as early as one month into Barrett's tenure, we see Roberts joining the liberals. In the case after case, what we're seeing on the chief do, he's writing separately and he's saying, I'm sympathetic to this challenge. I don't like what the state is doing. I have problems with this, but not this. The shadow docket is not where we should block it. We saw this again in February in the Alabama redistricting case where John Roberts, no fan of the Voting Rights Act. Right. He wrote the majority opinion in Shelby County that tore a big hole in the Voting Rights Act. Roberts says, You know, I think we might want to revisit our interpretation of this provision of the Voting Rights Act, but the shadow docket is no place to do it.
Nick Capodice: Roberts was then on the losing side of five four shadow docket decisions seven times.
Hannah McCarthy: These five four decisions are the justices pretty much voting along ideological lines.
Nick Capodice: And all the shadow docket decisions Stephen talked about. It was the same five in the majority Justices Barrett, Alito, Kavanaugh, Gorsuch and Thomas.
Stephen Vladeck: And then finally in this Clean Water Act case in early April, right for the first time, he doesn't just dissent in one of these cases, but he actually joins Justice Kagan, who has been repeatedly criticized in the majority for, in her terms, abusing the shadow docket. Now, we finally have John Roberts endorsing that critique. And I just you know, I don't know how you look at John Roberts and and his now criticism of the shadow docket and say that this is ideological. Right. Because if if John Roberts, who actually is sympathetic to these religious liberty claims, is sympathetic to the voting rights claims, doesn't like abortion. Right. Is with the other conservatives on the merits in all of these cases and keeps dissenting because he thinks they're taking shortcuts. If that's not a message about how broken this is, I don't know what is. And, you know, I don't think it's enough of an answer, as I think so many conservatives are want to do, to say, oh, well, Roberts is a squish. You know, no, he's been clear that he's with them on the merits. He just said there's a right way and a wrong way to do it.
Hannah McCarthy: Hang on. What does Squish?
Nick Capodice: Squish is a term that goes back to the Reagan administration. Politicians use it to describe members of their own party who sort of hem and haw who can't be counted on to back controversial initiatives.
Hannah McCarthy: Can we just stop here for a minute? Because my big question is, if we make the assumption that the same five justices vote one way and the same for the other, couldn't we just say that the shadow docket is speeding up the inevitable? Like, sure, we don't know for certain how a justice is ever going to vote, but if it's about a big social issue like abortion, we've got a pretty good idea. So what does Steven think is the biggest problem with decisions made this way?
Stephen Vladeck: It starts with a basic proposition, which is that what makes a court, a court is its ability to defend itself, is its ability to provide a rationale for its decision.
Hannah McCarthy: In other words, the reason the Supreme Court can be the Supreme Court is that it lays out its reasoning for its decisions.
Nick Capodice: Yes. And that is Stephen's first problem.
Stephen Vladeck: So, you know, problem number one is that the absence of any rationale deprives the public of the opportunity to access the principles to assess them not not necessarily for agreement or disagreement, but for whether we think the court is doing legal, judicial things. Problem number two is, the less the court writes, the easier it is for to be inconsistent. When the court at time one rules for one party one way and writes 50 pages as to why it's very easy for a different party at type two to say, look what you wrote in that case, right? We're now in the same situation. We should therefore win. Well, if the court has written nothing that it's not bound by what it didn't write at time. One.
Hannah McCarthy: So if these shadow docket decisions are happening with the same five justices in the majority, how will it end? Will decisions made outside of merits cases continue to be more and more common?
Nick Capodice: Maybe there's just no way of knowing how this will change as justices enter and leave the court. And Steven told me that for those who are critical of this uptick in shadow docket decisions, there are three steps that could result in it changing.
Stephen Vladeck: So I think step one is getting folks to realize that this really is a big deal and that it's not strictly partizan or ideological, that there are entirely neutral reasons to be deeply concerned with how the Supreme Court is behaving. Step two is more self awareness on the part of the courts. And then if neither of those succeeds, step three is Congress really ought to start thinking seriously about how it relates right to the core as an institution and why, when we talk about Supreme Court reform, we shouldn't be distracted by the big ticket, but never going to happen. Items like Adams's to the court or term limits. We really should be focused on the far more important, palatable and possible technical reforms that actually might reallocate some of these dynamics.
Hannah McCarthy: Nicky started with the wheels of government to bring this back to the wheel, to the big, powerful, slow wheel of government. I can understand people wanting to dodge that wheel to get things done quickly.
Nick Capodice: I can, too. But if everybody's dodging the wheel, why do we have a wheel in the first place? All right. Well, you can't tell by listening to it, but in honor of this episode, I'm recording these credits late at night. After everyone's asleep, you can maybe hear my washing machine in the background, and that'll do it for this episode. And the shadow docket. I tried to put in a midnight judges joke, but I just couldn't figure out how to do it. This episode was written and produced by me. Nick Capodice with Hannah McCarthy. Our staff includes Jackie Fulton. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. Music In this episode by the old greats Blue Dot Sessions, Ezra, Peter Sandberg, Apollo, the New Fools, Christian Anderson, Halston, Cisco, Juanita's, Ari De Niro, Jesse Gallagher and the Man Who Never Missed the Swiss Missed Christmas List, Chris Zabriskie. Civics one on one is a production of HPR New Hampshire Public Radio shadow.
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This podcast is a production of New Hampshire Public Radio.
On May 2nd, 2022, Politico published a leaked Supreme Court draft opinion. A leak of this kind is unprecedented, but it is the subject of the opinion that shook the nation. In it Justice Samuel Alito, speaking for the majority, writes that the landmark 1973 abortion rights case Roe v Wade must be overruled. So what exactly is at stake here? This is the story of Roe v Wade and the state of abortion rights in the United States. The state of federal abortions rights as of May 2022, that is. The opinion is slated to be published in late June.
RoevWade_FINAL.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.
Adia Samba-Quee:
Civics 101 is supported in part by the Corporation for Public Broadcasting.
Hannah McCarthy:
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:
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.
Hannah McCarthy:
In this instance, the Supreme Court has withdrawn protection for the human rights of unborn children. And it is...
Hannah McCarthy:
What is the most important human right?
Archival:
The right to life, the right to life, the right to life.
Archival:
That a fetus is not a person. Yes, it is. Ok, that's where the disagreement is.
Archival:
If women could keep themselves from getting pregnant when they didn't want to.
Archival:
I tell you what it is, it's chastity.
Archival:
Hey bagpipes, shut up.
Archival:
When does it become a child to you?
Archival:
It's my body. I would have to carry the child.
Hannah McCarthy:
This is Civics 101, I'm Hannah McCarthy.
Nick Capodice:
I'm Nick Capodice,
Hannah McCarthy:
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:
The case that every nominee gets asked about. Roe v. Wade. Can you tell me whether Roe was decided correctly?
Hannah McCarthy:
At protests and during elections?
Archival:
If Roe v. Wade is
Archival:
Overturned, what would you want Indiana to do? Would you want your home state to ban all abortions?
Speaker1:
You have two minutes.
Hannah McCarthy:
A case that fueled the fire of two movements that draw a line in the reproductive sand, Roe vs. Wade.
Renee Cramer:
I will start by saying that probably anything you think you know about Roe is wrong.
Hannah McCarthy:
This is Renee Cramer, law professor at Drake University.
Nick Capodice:
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:
No, actually, it simply said that Texas couldn't criminalize abortion in the first trimester.
Hannah McCarthy:
As it turns out, before you can start learning Roe v. Wade, you first have to unlearn Roe v. Wade.
Renee Cramer:
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
Renee Cramer:
View of what that meant.
Hannah McCarthy:
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:
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:
Yeah, and one more thing. Roe v. Wade did not result in the plaintiff, Jane Roe, 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
Hannah McCarthy:
Of her life.
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:
Ok, that I have heard Norma McCorvey became a major anti-abortion activist.
Hannah McCarthy:
She did
Hannah McCarthy:
Indeed. Which makes this interview clip all the more complicated.
Nick Sweeney:
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.
Hannah McCarthy:
That
Hannah McCarthy:
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 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:
Another case.
Hannah McCarthy:
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.
Nick Capodice:
Wow, Hannah, now you've told me what this case is not. Can we talk about what it is?
Hannah McCarthy:
Yes. Back to Jane Roe.
Renee Cramer:
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:
So she eventually, after trying to get an abortion illegally, found her way to two attorneys, Linda Coffee and Sarah Weddington.
Hannah McCarthy:
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,
Mary Ziegler:
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:
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:
But when
Archival:
She came
Archival:
Forward, Norma McCorvey became the emblem of the movement.
Archival:
So she's here today coming out of hiding for this. And we appreciate her courage, darling.
Hannah McCarthy:
Anyway, the case goes to a Texas district court and here is the kicker in that district court, 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:
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 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:
So the court takes the case.
Case archival:
We'll hear arguments number 18 Roe against Wade.
Hannah McCarthy:
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,
Case archival:
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:
Oh, that's just -- that really happened?
Hannah McCarthy:
Yeah, that really happened. It's been called the worst joke ever made in legal history.
Nick Capodice:
That's ridiculous. And I'm not really hearing a chuckle from the bench.
Hannah McCarthy:
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:
What's the argument of Mr. Live at the Improv Jay Floyd?
Mary Ziegler:
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.
Case archival:
Thank you, Mrs. Weddington. Thank you. We're going the case is submitted.
Hannah McCarthy:
So that is the first time this case is argued before the court.
Nick Capodice:
First time -- the court heard Roe v. Wade more than once?
Mary Ziegler:
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:
Three years. What happened?
Hannah McCarthy:
Well, it's 1970 and the court says, OK, we will hear Roe and oral arguments happen. And the justices are 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:
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:
Was Harry Blackmun a doctor and a former life or something?
Hannah McCarthy:
Not even a little bit. The Mayo Clinic was a former client of 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.
Interviewer:
How did this line of discussion start to evolve in your mind?
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:
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 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.
Harry Blackmun:
We came up
Harry Blackmun:
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:
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:
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:
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:
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:
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:
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:
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:
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 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:
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:
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:
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.
Interviewer:
What are the facts of this case and how does it relate to Roe v. Wade?
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.
Interviewer:
How did the case even get?
Mary Ziegler:
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. 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:
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:
You know, Hannah, you told us that in order to learn Roe v. 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:
Jane
Archival:
Roe, an unmarried pregnant
Archival:
Girl.
Nick Capodice:
There's Harry Blackmun in his research.
Harry Blackmun:
I put a lot of myself into that opinion.
Nick Capodice:
There's no McCorvey in her contradictions.
Nick Sweeney:
It was all an act.
Norma McCorvey:
Yeah.
Nick Capodice:
There's Planned Parenthood v. Casey.
Interviewer:
It was initiated by --
Kathryn Kolbert:
That's right --
Interviewer:
Planned Parenthood.
Kathryn Kolbert:
Whenever...
Nick Capodice:
And then there is the political and social division that Roe is synonymous with. Even today.
Mary Ziegler:
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 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:
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:
All right. This is a two parter because Roe does maintain, despite Planned Parenthood 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:
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:
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:
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 will settle the abortion debate only in their favor. And they're just as likely to be wrong as Blackmun was.
Hannah McCarthy:
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.
This episode was produced by me and Hannah McCarthy with Nick Capodice. Christina Phillips is our Senior Producer and Rebecca Lavoie our Executive Producer. Our staff includes Jacqui Fulton.
Nick Capodice:
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:
Music.
Hannah McCarthy:
In this episode by Bio Unit, Ketsa, Metre, The Young Philosopher's Club and Xylo Ziko.
Nick Capodice:
Civics 101 is a production of NHPR, New Hampshire Public Radio.
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Roe v Wade:
Hannah McCarthy: The evening before this episode came out, May 2nd 2022, something unprecedented made its way into the news. A leaked draft opinion out of the Supreme Court. Now, information on deliberations and opinions have dripped out of the Court in the past but never a full opinion. You can go to Politico dot com right now and read the full 98 pages. And this opinion, by the very nature of opinions a majority opinion as opposed to a dissent, reflects a vote to strike down the landmark 1973 case, Roe v Wade. This leaked draft opinion calls Roe egregiously wrong from the start with its author, Justice Samuel Alito writing “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
This is, of course, a draft. Justices can and in the past certainly have changed their vote. The language of the opinion can change as well in the days before it is officially published. Which, for this draft, is expected to be around late June of 2022. What is too late to change, however, is the public reaction to this leak. Never before in the modern history of the Supreme Court have the people been given such access to the opinion of the court before the court issued its opinion. The fact that the case is Roe v Wade, one of the most controversial and politics-defining decisions the court has ever issued, makes this moment all the weightier.
So to that end, here’s our episode on Roe v Wade. We first released it about a year ago, in April of 2021. We didn’t know then that the case would be meaningfully taken up for reconsideration via Dobbs v Jackson Women’s Health Organization. That’s the case that has allowed SCOTUS to reconsider the constitutionality of Roe v Wade and, apparently, determine that it is not constitutional at all. Take some time today to learn the history of Roe v Wade and the current state of federal abortion law. Things are likely to change very soon.
Ok, here we go.
Adia Samba-Quee: Civics 101 is supported in part by the Corporation for Public Broadcasting.
Hannah McCarthy: 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 [00:00:30] ruling so controversial that to this day, advocates work tirelessly to preserve or overturn it.
Archival: 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.
Hannah McCarthy: In this instance, the Supreme Court has withdrawn protection for the human rights of unborn children. And it is...
Hannah McCarthy: What is the most important human right? [00:01:00]
Archival: The right to life, the right to life, the right to life.
Archival: That a fetus is not a person. Yes, it is. Ok, that's where the disagreement is.
Archival: If women could keep themselves from getting pregnant when they didn't want to.
Archival: I tell you what it is, it's chastity.
Archival: Hey bagpipes, shut up.
Archival: When does it become a child to you?
Archival: It's my body. I would have to carry the child.
Hannah McCarthy: This is Civics 101, I'm Hannah McCarthy.
Nick Capodice: I'm Nick Capodice,
Hannah McCarthy: And today [00:01:30] we're taking on a case that these days shows up in every Senate hearing for a new nominee to the Supreme Court
Archival: The case that every nominee gets asked about. Roe v. Wade. Can you tell me whether Roe was decided correctly?
Hannah McCarthy: At protests and during elections?
Archival: If Roe v. Wade is
Archival: Overturned, what would you want Indiana to do? Would you want your home state to ban all abortions?
Speaker1: You have two minutes.
Hannah McCarthy: A case that fueled the fire of two movements that draw a line in the reproductive sand, [00:02:00] Roe vs. Wade.
Renee Cramer: I will start by saying that probably anything you think you know about Roe is wrong.
Hannah McCarthy: This is Renee Cramer, law professor at Drake University.
Nick Capodice: 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: No, actually, it [00:02:30] simply said that Texas couldn't criminalize abortion in the first trimester.
Hannah McCarthy: As it turns out, before you can start learning Roe v. Wade, you first have to unlearn Roe v. Wade.
Renee Cramer: 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 [00:03:00] 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
Renee Cramer: View of what that meant.
Hannah McCarthy: 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 [00:03:30] 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: 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: 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
Hannah McCarthy: Of her life.
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: Ok, that I have heard Norma McCorvey became [00:04:30] a major anti-abortion activist.
Hannah McCarthy: She did
Hannah McCarthy: Indeed. Which makes this interview clip all the more complicated.
Nick Sweeney: 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.
Hannah McCarthy: That
Hannah McCarthy: 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. [00:05:30]
Nick Capodice: Another case.
Hannah McCarthy: 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: Wow, Hannah, now you've told me what this case is not. Can we talk about what it is?
Hannah McCarthy: Yes. Back to Jane Roe.
Renee Cramer: 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 [00:06:30] 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: So she eventually, after trying to get an abortion illegally, found her way to two attorneys, Linda Coffee and Sarah Weddington.
Hannah McCarthy: This is Mary Ziegler, [00:07:00] law professor at Florida State University College of Law. And author of a number of books about abortion law and Roe v. Wade,
Mary Ziegler: 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: The purpose of an alias, by the way, is to protect the identity of the plaintiff, sort [00:07:30] 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: But when
Archival: She came
Archival: Forward, Norma McCorvey became the emblem of the movement.
Archival: So she's here today coming out of hiding for this. And we appreciate her courage, darling.
Hannah McCarthy: 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: 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 [00:08:30] 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: So the court takes the case.
Case archival: We'll hear arguments number 18 Roe against Wade.
Hannah McCarthy: You've got attorney Jay Floyd arguing in defense of the Texas abortion restrictions and attorneys Linda Coffee and Sarah Weddington representing Roe and [00:09:30] 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,
Case archival: 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: Oh, that's just [00:10:00]-- that really happened?
Hannah McCarthy: Yeah, that really happened. It's been called the worst joke ever made in legal history.
Nick Capodice: That's ridiculous. And I'm not really hearing a chuckle from the bench.
Hannah McCarthy: 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 [00:10:30] Amendment Rights to Liberty and cite the due process and equal protection clause of the Constitution.
Nick Capodice: What's the argument of Mr. Live at the Improv Jay Floyd?
Mary Ziegler: 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 [00:11:00] 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.
Case archival: Thank you, Mrs. Weddington. Thank you. We're going the case is submitted.
Hannah McCarthy: So that is the first time this case is argued before the court.
Nick Capodice: First time -- the [00:11:30] court heard Roe v. Wade more than once?
Mary Ziegler: 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: Three years. What happened?
Hannah McCarthy: 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 [00:12:30] Floyd in that second round.
Mary Ziegler: 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: Was Harry Blackmun a doctor and a former life or something?
Hannah McCarthy: 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.
Interviewer: How did this line of discussion start to evolve in your mind?
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 [00:13:30] in the opinion. I found it fascinating.
Renee Cramer: 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.
Harry Blackmun: We came up
Harry Blackmun: With what it was and didn't know what the trimester system. And [00:14:30] that seemed to have an appeal, and that was it.
Renee Cramer: 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: 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: And that is a huge element to the decision in this case, which, [00:15:00] 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: 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 [00:15:30] 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: 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, [00:16:00] 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: 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 [00:16:30] 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: Today we think about the abortion debate as pro-life versus pro-choice, Republican [00:17:00] 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 [00:17:30] 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: 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: 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 [00:18:30] v. Wade legal battles.
Renee Cramer: 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. [00:19:00] 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 [00:19:30] we get better technology and the fetus is viable earlier, does that increase the state's interest?
Hannah McCarthy: 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.
Interviewer: What are the facts of this case and how does it relate to Roe v. Wade?
Kathryn Kolbert: Well, the case is a direct challenge to Roe versus [00:20:00] 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 [00:20:30] the question and determine what are the appropriate standards to judge abortion laws.
Interviewer: How did the case even get?
Mary Ziegler: 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: What this means practically, is that a state now can limit access [00:21:30] 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: 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: Jane
Archival: Roe, an unmarried pregnant
Archival: Girl.
Nick Capodice: There's Harry Blackmun in his research.
Harry Blackmun: I put a lot of myself into that opinion.
Nick Capodice: There's no [00:22:30] McCorvey in her contradictions.
Nick Sweeney: It was all an act.
Norma McCorvey: Yeah.
Nick Capodice: There's Planned Parenthood v. Casey.
Interviewer: It was initiated by --
Kathryn Kolbert: That's right --
Interviewer: Planned Parenthood.
Kathryn Kolbert: Whenever...
Nick Capodice: And then there is the political and social division that Roe is synonymous with. Even today.
Mary Ziegler: 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 [00:23:30] of social change.
Nick Capodice: 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: 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: 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 [00:24:30] 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 [00:25:00] 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: 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 [00:25:30] overturned. Here's Mary with the second part of the answer to your question.
Mary Ziegler: 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: 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 [00:26:30] 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.
This [00:27:00] episode was produced by me and Hannah McCarthy with Nick Capodice. Christina Phillips is our Senior Producer and Rebecca Lavoie our Executive Producer. Our staff includes Jacqui Fulton.
Nick Capodice: 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: Music.
Hannah McCarthy: In this episode by Bio Unit, Ketsa, Metre, T [00:27:30]he Young Philosopher's Club and Xylo Ziko.
Nick Capodice: Civics 101 is a production of NHPR, New Hampshire Public Radio.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
The land had been cultivated and lived on for millennia when geologist Ferdinand Hayden came upon the astounding Yellowstone "wilderness." It wasn't long before the federal government declared it a national park, to be preserved in perpetuity for the enjoyment of all. Ostensibly. How did Yellowstone go from being an important home, hunting ground, thoroughfare and meeting place to being a park?
Megan Kate Nelson, author of Saving Yellowstone, Mark David Spence, author of Dispossessing the Wilderness and Alexandra E. Stern, historian of Native peoples and Reconstruction are our guides to this rocky start.
this mp3 audio file was automatically transcribed by Sonix This transcript may contain errors.
Hannah McCarthy:
By the mid-19th century, the rumors had been going around for a while in the eastern U.S..
Megan Kate Nelson:
There had been trappers and some scouts who had been in there, and they had been telling stories, but no one believed them because they were always telling stories, you know, that seemed hard to believe in outlandish.
Hannah McCarthy:
Rumors of a place in the Northwest, in Wyoming, territory that was truly fantastical in description. This place supposedly had exploding geysers, shooting water 100 feet into the air. It had boiling springs. It had bubbling mud pockets. It was both beautiful and dangerous. But who could say if any of these rumors were true?
Megan Kate Nelson:
Really Yellowstone was one of the few unmapped places in the United States in 1870 and 71.
Hannah McCarthy:
This is Meghan Kate Nelson, author of Saving Yellowstone.
Megan Kate Nelson:
You know, lots of surveys had been out there. Lewis and Clark had kind of moved north of Yellowstone on their return trip and their big survey. But no federal officials had been there or even civil officials on the ground.
Hannah McCarthy:
This is Civics 101. I'm Hannah McCarthy.
Nick Capodice:
I'm Nick Capodice.
Hannah McCarthy:
And today we are telling the story of how a now unbelievably vast system found its rocky start. This is how America got its first national park, the first federally run place set aside for ostensibly all to enjoy. And that story, Nick, is inextricably tied to reconstruction, to railroad building and to the removal of indigenous people from their lands.
Megan Kate Nelson:
Indigenous peoples, of course, have been using Yellowstone for thousands of years as a thoroughfare and a camping site and a hunting ground. But they weren't telling any tales of Yellowstone to any Indian agents up until that point.
Nick Capodice:
Well, sure, because when it's your home, its existence is neither unbelievable nor astonishing. But real quick, what does Megan mean by Indian agent?
Hannah McCarthy:
Great, good question. So this is a position that was reformed several times over the course of history. Initially, it was a person appointed by the president to prevent conflict between indigenous people and non-Indigenous settlers and to remove indigenous people from lands taken or procured by the U.S. government, among other things. Eventually, it was more about facilitating assimilation into American culture and preventing indigenous people from leaving reservations without permits. By the time the position was eliminated in the federal government, Indian agents were thought by the public to be unscrupulous people. They didn't have a great reputation.
Nick Capodice:
Basically, you're telling me this is a whole other Civics 101 episode?
Hannah McCarthy:
You've no idea. It's so huge. Anyway, back to this rumored land of the Northwest. As soon as non-Indigenous Easterners learned that the rumors were indeed true, it was Go West, young man.
Megan Kate Nelson:
It wasn't until a group of kind of civic boosters in Montana went into the park in two different surveys in '69, and then, most importantly, in 1870. That was really the first time that the American public really knew about Yellowstone and what might be there. And it got Ferdinand Hayden's attention.
Hannah McCarthy:
Ferdinand Vandeveer Hayden, noted American geologist and former Civil War Union Army physician.
Megan Kate Nelson:
He had heard the stories and had always wanted to go to Yellowstone and had been frustrated in an attempt to go there ten years earlier. But it was really in the spring of 1871 that he started to lobby Congress to go to Yellowstone. And up to that point, most federal officials, you know, congressmen, the executive, really had no idea what was out there or if any of these rumors were true.
Nick Capodice:
I feel like we need to set the scene here for a moment. 1871. So the Civil War has only been over for about six years. And it's the reconstruction period, which is, you know, the government is trying to reintegrate the Confederate states back into the Union while preserving the rights of newly emancipated, formerly enslaved people and navigating the South's, quote, black codes which restricted and exploited black Americans. Everything is extremely vulnerable and tense. And Hayden, this geologist, he's like, yeah, now is the perfect time. Give me some money to go on an adventure.
Megan Kate Nelson:
For Hayden, it was part of his ambition to become the most well-known scientific explorer in America, perhaps even the world. He had that kind of grandiose of a of an idea of what his career would entail. And hearing about Yellowstone as a geologist I think was very tempting. He thought he would find a lot of evidence of lots of the debates and arguments going on in the field at the time, which mostly revolved around how old the earth was and how it had evolved as it had. Was it a series of volcanic eruptions? Was it erosion? Was it something else? Entirely cataclysmic events. And he felt like he could find those answers in Yellowstone.
Nick Capodice:
And that was convincing to Congress?
Hannah McCarthy:
No, not entirely. He made another argument as well. And this is the one that I think really got the federal government to bite, to give him money to the tune of $40,000 and marching orders to go along with it, basically. Hayden focused on what Yellowstone was going to do for the United States.
Megan Kate Nelson:
The Department of the Interior, in their instructions to Hayden, you know, said, go find out what is there, mineralogically, you know, hydrologically, topographically. Can it be farmed? Can it be ranched? Can it be mined? How can we bring this place into the United States as a productive landscape?
Hannah McCarthy:
In other words, we've acquired this territory to the West. There's this vast, unmapped space time to find out how we can start exploiting its resources.
Megan Kate Nelson:
I think it's important to know that Yellowstone was a Reconstruction project, and we don't usually think of Reconstruction in that way. Usually we talk about Reconstruction as a political process that was meant to bring the former Confederate states back into the Union politically and culturally, and meant to protect the new rights of black Southerners as citizens and then the men as voters. And when you look at Reconstruction from Yellowstone, I think you realize that that Reconstruction was a national process and that the federal government was, of course, interested in bringing the South back into the union. That was their focus. But they were also interested in bringing the West into the union through, getting to know it scientifically, surveying it, understanding what was there, parceling it out and selling it, providing for white migration and settlement, and dispossessing native peoples of those lands.
Hannah McCarthy:
And it wasn't just about staking physical control. Republicans in Congress knew that this was an important opportunity to build political power as well. If these Western territories became states and those states had Republican representatives, that would be a huge political boon. Not to mention the fact that it would keep the Democratic Party at bay.
Megan Kate Nelson:
They knew that the Democrats of the White South were growing in power, and especially after 1874, with redemption politics. They knew going forward that they were going to need the West.
Nick Capodice:
Alright. But before the Republican Party can get to all the potential political windfalls, this surveyor, Hayden, actually has to get out there and see what's what.
Hannah McCarthy:
Right. So Hayden, the geologist, selects his team and he heads west.
Megan Kate Nelson:
They took the Transcontinental Railroad from Omaha to Ogden, Utah. And by the time they left to move northward with a series of wagons, the team was about 50 people, which was a large, interesting mix. You know, it was scientists, cooks, laborers, assistants, who many of whom were the sons of congressmen.
Hannah McCarthy:
Also vitally important: Hayden brings along artists, a photographer who will be there to document that this place actually exists, that these natural wonders are real, so the people in the East can believe it and do something about it, and to really capture that sweeping, compelling glory of it all. They had a painter.
Nick Capodice:
Really?
Hannah McCarthy:
Oh, yeah.
Nick Capodice:
That's wonderful.
Megan Kate Nelson:
Thomas Moran was sent by Jay Cooke, an investment banker who was very interested in the Hayden survey because he was the the lead financial driver of the Northern Pacific Railroad, which he hoped would lay track north of Yellowstone and bring tourists there. And he knew Thomas Moran from Philadelphia, who already had a fairly good reputation as a landscape painter. And so he helped pay his way and sent him out to join Hayden in July. And Hayden welcomed him because he knew how important visual images would be in helping people to understand what actually was contained in Yellowstone and to really create it in the American mind.
Nick Capodice:
I was just wondering if the business sector was going to come into this at some point. I mean, giant swaths of land without much development seemed like they'd be candy to private industry.
Hannah McCarthy:
Absolutely. The northern Pacific would eventually have a little spur rail that went directly to. The northern entrance of the park for easy tourist access. Also, Jay Cooke, the guy who owns the Northern Pacific Railroad, he was an avid hunter and he was in support of preserving places for people like him to hunt.
Nick Capodice:
Alright. And speaking of what this land is going to be used for. Was anybody talking about the fact that there were already people utilizing this land? Did Haden actually believe he was going into untouched territory?
Megan Kate Nelson:
He does have those moments, especially in his public writing, where, you know, he's saying we are the first Americans to see this. Oh, and by the way, we followed a trail. He -- he says, you know, we turned our horses onto the trail. So obviously, indigenous people knew this place. They had been there often and often enough that they had actually their horses hooves and the and the travois that they used had dug these trails out. But he does not acknowledge really any indigenous presence or indigenous use of Yellowstone.
Hannah McCarthy:
When Megan says acknowledge she means in Hayden's writing about Yellowstone because he was perfectly aware of the fact that the expedition might indeed encounter people from any number of the many tribes who passed in and out of Yellowstone each season, even though this expedition did avoid conflict with tribes. It traveled with a cavalry escort, partially for that reason.
Mark David Spence:
The notion of Yellowstone is a wonderland is created by some of these early, early folks.
Hannah McCarthy:
This is Mark David Spence, author of Dispossessing the Wilderness Indian Removal and the Making of the National Parks.
Mark David Spence:
And then you get Thomas Moran doing the paintings, and that's when Congress blows its mind and goes, Oh, my God, when you have the paintings of Thomas Moran, lakes, trees, crags, just atmospheric weather, the way the clouds move in and move out, all that sort of stuff is all part of the sublime esthetic which educated people in the Americas would have learned from Europeans.
Hannah McCarthy:
Nick, have you seen these Moran paintings?
Nick Capodice:
I don't think so. Are these the ones that sort of look like giant Ansel Adams photographs, like beautiful depictions of Yellowstone and Yosemite?
Hannah McCarthy:
Yeah, they sort of look like heaven. Like if someone were to imagine heaven and paint it, they make Yellowstone look otherworldly, like, sort of divine and definitely not like the kind of place that human society had touched. These paintings would end up being highly influential to Congress, by the way, because, like Mark said, the sublime was an established concept for many Americans and a coveted aesthetic. To possess something sublime actually meant something.
Mark David Spence:
Yosemite and Yellowstone have all of those elements in spades, an eruption of the sacred into the world. And so these sort of landscapes are just there. They're not standard, they're not normal, they're just extraordinary. And to be among them and within them is to have a sanctifying experience, a saintly experience, in a way that's sort of what underlies the creation of a lot of the original early national parks.
Nick Capodice:
You know, I think this idea is still very much in the air today that many of our national parks represent the astounding, precious wilderness that we smartly had the wherewithal to protect.
Hannah McCarthy:
Which, by the way, is true, and the eventual decision to protect giant swaths of land in North America from the onslaught of industry and development that swallowed the rest of the country, you know, that's on its face. Great. But the idea that what is protected is this static, pure, quote unquote, wilderness erases millennia of human history. And in actual fact, preservation is defined as the actor process of applying measures necessary to sustain the existing form, integrity and materials of an historic property. But the existing form that Hayden and his expedition, for example, encountered was the result of millennia of human influence humans who had been or were about to be kicked off of that land.
Mark David Spence:
It's a place for humans or visitors not to remain if we're going to a national park to experience wilderness. But by definition, you can't remain. You have to leave.
Hannah McCarthy:
But of course, this land is not this separate, inhuman block of space, because the word wilderness itself implies that no one has been to or seen this place before or told stories about it. And of course, that isn't true.
Mark David Spence:
It's embedded with stories. It produces the material for stories. If wilderness is real, indigenous people had nothing in their brains for uncountable generations. It's not a wilderness. It's a story that's lived. It's a hell of a lot older than 1776.
Hannah McCarthy:
So how did this storied place become Yellowstone National Park and what happened to the tribes who were using it before the government began the project of forbidding their way of life? We'll get to that after the break.
Nick Capodice:
But first, if you're a Civics 101 listener, we think you might enjoy our newsletter. It's called Extra Credit. It's fun. It comes out every two weeks. It's full of all the stuff that Hannah and I can't squeeze into our episodes. You can subscribe at our website, civics101podcast.org.
Hannah McCarthy:
This is Civics 101. I'm Hannah McCarthy.
Nick Capodice:
I'm Nick Capodice.
Hannah McCarthy:
And today we are exploring the creation of America's First National Park, a creation that required a myth.
Alexandra E. Stern:
You know, people are very interested in in preserved land in this kind of outdoor recreation. But it's all kind of premised on this idea of an American wilderness and also this kind of pristine, sometimes called virgin land. Now, that kind of idea is an entire myth.
Hannah McCarthy:
This is Alexandra E. Stern, a history professor at the City College of New York.
Alexandra E. Stern:
The land that even the first British colonists in 1607 at Jamestown see is actually the product of thousands of years of human intervention. Right. Indigenous people here, at least 15,000 years, they have been shaping and living with and affecting the environment that entire time. So there is no virgin land and there is no pristine wilderness untouched by human beings such that. I think that idea. Right. It shows you kind of who counts in the view of 19th century Americans that they don't think of indigenous people necessarily as people or people who would kind of, you know, rank in affecting wilderness the same way. And that's in part because of their cultural blindness, right, to how what the indigenous relationship with land is compared to, let's say, a Euro-American relationship. There already is kind of this idea that we will want to save the best places, and Yellowstone in particular, which is the first park.
Nick Capodice:
And I know this is an important part of the pitch, right. This surveyor who we talked about, Vernon Hayden, he's been to Yellowstone. He's gathered information about the land, what he and his team saw, photographs and paintings. And he has to come back to the east and report it out and tell the American people, hey, we've got this pristine, untouched wilderness. You're going to love it.
Megan Kate Nelson:
In his popular piece for Scribner's Monthly he was articulating a lot of these sublime notions that here are landscapes we've never seen before. They are unique. They are American.
Hannah McCarthy:
This is Megan Kate Nelson again.
Megan Kate Nelson:
And at the end of that essay, he suggested that Yellowstone become a national park, that we keep it to enjoy for the benefit of the people. And underlying that whole notion was not only that that nature would be a wonderful place for people to to go to, to recreate, to kind of walk around and be out in the open air and enjoy that, but also in that second meaning of the word to recreate themselves. So this was a notion that was in the air.
Hannah McCarthy:
I just want to be clear. Hayden did not actually come up with this idea. A rep from the Northern Pacific Railroad put the bug in his ear by essentially saying, you know, wouldn't it be cool if Yellowstone was preserved in perpetuity by the federal government? And Hayden was like, Oh, yeah, that would be cool.
Nick Capodice:
Why does the Northern Pacific Railroad keep getting brought up here? Why are they, like, sticking their noses into park business?
Hannah McCarthy:
Well, they're seeing that there is this grand natural wonder right in the proposed path of the railway. They're building the kind of wonder that people, maybe even quite wealthy people, might make a destination out of. And Jay Cook, the mogul who owns the Northern Pacific, has enough money and influence to drum up public interest.
Nick Capodice:
So, in other words, tourism.
Hannah McCarthy:
Oh, yeah.
Nick Capodice:
So how does Yellowstone finally end up becoming Yellowstone?
Hannah McCarthy:
Well, Hayden and Cook both start lobbying in Washington.
Megan Kate Nelson:
These arguments were pretty convincing that Yellowstone was this amazing natural wonder that its geothermal regions in particular were unique in all the world and should be saved from development. That Hayden was very specific and including in these reports that he helped the public lands committees to write that kind of these twin arguments, that there were already entrepreneurs there hoping to build hotels and spas, and that this was going to be an eyesore. Right. That this was going to be terrible and nobody wanted this kind of development in Yellowstone.
Hannah McCarthy:
And then do you remember how Hayden convinced the government to give him money to go in the first place?
Nick Capodice:
Yeah. Like to figure out what Yellowstone can do for them, how to make money for America through mining or farming and stuff like that.
Megan Kate Nelson:
The other argument was that Yellowstone was useless. So in his reports and also kind of in response to those Department of Interior instructions, Hayden said, Look, you can't use this to farm. You can't farm on top of a caldera. That's not going to work. And there's no the water sources are kind of compromised. Right. Because they have this superheated, very mineral water in them. So you can't farm there. You can't graze there. He determined there was no gold or silver or copper to be mined there. And this often comes up in a lot of preservation history that people argue, well, this land can't be used for anything else.
Hannah McCarthy:
The way he saw it, Yellowstone had proven to be a place that would not be a great resource for farmers or miners. The United States is unlikely to be able to exploit it in that way. But it is sublime, it is beautiful, and the preservation of beautiful places for public enjoyment. That was already a pretty well accepted concept in America, something we borrowed from England at this point. You already had a fairly famous designer of outdoor spaces, Frederick Law Olmstead building parks in New York City.
Megan Kate Nelson:
So those were the two arguments and those were very convincing to the vast majority of Republicans who, you know, it's important to note at this time that Republicans and Democrats had sort of opposite ideologies as they do today. So Republicans were very interested in creating a national infrastructure, in providing all kinds of services for the people and protecting the American people's rights and using the federal government power to do so. And so this was convincing to most of them.
Nick Capodice:
Okay. But this is the Reconstruction period. The United States is recovering from civil war. Who in Congress is going to agree to budget for the preservation of a giant park?
Hannah McCarthy:
Well, the thing is, they didn't the Yellowstone Act did not come with appropriations, aka money to operate. The act was proposed in December of 1871 and became law in March of 1872. It was not a hard sell in Congress.
Nick Capodice:
In ten weeks. That's quick. How did Americans respond?
Hannah McCarthy:
Well, many people, including members of Congress who Hayden thoughtfully supplied with copies, had read that essay in Scribner's Monthly, in which Hayden sang the praises of Yellowstone.
Megan Kate Nelson:
He never explicitly argued that Yellowstone was the most American place that you could find on the continent. But many people around him were, and many newspaper editors, in the wake of the passage of the Yellowstone Act, were arguing that it really was only in America that the creation of a national park could happen, that this was going to be a democratic landscape of tourism access for all the people. Of course, in that notion, white Americans are completely ignoring the indigenous peoples who had been stewards of that land for thousands of years, many of whom were already forced onto reservations by the federal government and then the Lakota peoples, whose defense of their lands east of Yellowstone would become a central concern for the federal government in in the next couple of years.
Hannah McCarthy:
Now, I just want to note that there have been several Indian appropriations acts over the course of American history, but the reservation system was established by the 1851 Act. The history of treaties made and broken, of reservations of forced movement, forced assimilation and extermination efforts. That is a whole series here at Civics 101. For this episode, it is just important that, you know that the US government had already forcibly limited native movement at this point.
Nick Capodice:
Okay, but I have to ask, because we know there were multiple tribes who use that land for various purposes, including as a home. Did the Yellowstone Act break any treaties which frankly the US was not at all that shy about doing.
Megan Kate Nelson:
Because Yellowstone was a thoroughfare for multiple indigenous communities. During this period, no one tribal nation claimed it as their own, which actually worked to the federal government's benefit later because they did not have to negotiate with any indigenous tribes in order to take that land from them. There were Shoshone and Shoshone Bannock peoples and Crow peoples who are already on reservations around the periphery of Yellowstone. But none of Yellowstone proper had been negotiated at all.
Nick Capodice:
And like you said, many of these native people had already been relegated to reservations. The idea behind that being, as far as I understand it, to both keep native peoples off land the U.S. wanted to use and to control those tribes down to their cultural practices and where they were allowed to go.
Megan Kate Nelson:
That was the goal was to to basically annihilate them culturally, you know, take away their language, any of their religious traditions. Their foodways and bring them into the American body politic. Although the 14th Amendment, which is passed during reconstruction, explicitly gives the rights of citizenships to anyone born or naturalized in the United States except Indians untaxed, which is the term that they used, which meant any native people living off the reservation. People like Sitting Bull and his Papa Lakota, who are out, you know, they called them sometimes fugitive Indians or, you know, sort of Indians on the move. They were not contained and not surveilled, and therefore they were not citizens and were not able to claim any kind of citizenship. Right. From the federal government. And and, in fact, native peoples would not earn fully full citizenship rights until the 20th century.
Nick Capodice:
Alright. Let's pause here for a second and talk about the Lakota. Megan mentioned that they were defending their lands even after the establishment of Yellowstone.
Hannah McCarthy:
Yes. Now, this is where Sitting Bull comes in. He was a Lakota leader who led his people in the resistance against US incursion. And this part of the story is really important, because though the United States tried their damnedest, there was resistance, often successful resistance to this forceful westward expansion into indigenous land.
Megan Kate Nelson:
He was a leader of the Lakota, one of several bands of the Lakota people who are themselves a part of a much larger group of seven council fires of what the Americans called the Sioux at that point. And what they they called themselves the Chaco in. And so he was always among a council of leaders, and they made decisions together about how they were going to move forward. But he became a very strong voice for resistance to the federal government in this period, and especially after 1868, which was the big year of the Treaty of Fort Laramie, when a lot of tribal nations in this region, in the Northwest were making agreements with the federal government and moving to reservations. And Sitting Bull was very consistent about his resistance to that. He wanted to remain in his homelands. He wanted to be able to hunt bison herds for his people, for their survival. And he was constantly fighting for that. And it was really interesting in this moment, in 1871, 72, he begins to react to the presence of Northern Pacific surveyors who are trying to build their track right through the heart of Lakota Country from the Missouri River, all the way to the Yellowstone Basin.
Nick Capodice:
The Northern Pacific staking its claim once again.
Hannah McCarthy:
And Sitting Bull wouldn't have it.
Megan Kate Nelson:
Always he was consistent in his message. Always his emissaries were consistent in their message, which was, you know, we want to be at peace. We don't want to fight with you, but you are in our lands. And if you want peace, you're going to have to keep your white settlers out of our homelands and you're going to have to keep the northern Pacific out. And the Indian agents themselves were also very consistent in saying that's not going to happen.
Hannah McCarthy:
And, of course, it did not happen. Now, even if you don't know Sitting Bull, there is a chance you have heard of the Battle of Greasy Grass, aka Nick, the Battle of Little Bighorn, a.k.a. Custer's Last Stand. This was a watershed moment in indigenous US relations, where a coalition of Lakota, Cheyenne and Arapaho Warriors defeated U.S. forces in 1876.
Megan Kate Nelson:
That victory that the Lakota and their allies had at Little Bighorn was astonishing, and it was by far their most kind of impressive victory. But it was also a terrible moment. And Sitting Bull knew this, that even though they had gained the field on this day and successfully defended their homeland, it was going to bring the full power of the federal government down on their heads. And it, in fact, did. And Sitting Bull made the decision to move his Band of Papa Lakota up to Canada.
Hannah McCarthy:
So why is this important? Why did the battle of greasy grass come into this? How is this about Yellowstone National Park? Because that railroad marketed itself as having the Yellowstone National Park and dining car route to the Pacific Coast. You can buy a vintage map advertisement at Walmart today if you want, because Yellowstone and the railroad and native removal are all the same story. Here's Mark David Spence again.
Mark David Spence:
There's no reason to assume or even argue incessantly that native removal doesn't also touch the things that we consider the best and most noble aspect. Operations or inherited virtues. And I would say it's dangerous to forget that we may not fix it or cure it, but it's a very dangerous to forget that native removal, the admiration for national parks. They're just inseparable. They're definitive of what we are as a nation. National development and Indian policy go hand in hand.
Nick Capodice:
So, Hannah, over the course of this whole episode, I keep coming back to this pretty famous Wallace Stegner quote, which made its way into the Ken Burns documentary about the national parks. Stegner, by the way, was a novelist, environmentalist and historian of the American West, and he said national parks are the best idea we ever had.
Hannah McCarthy:
Yes, Stegner, who notably minimized and erased the indigenous past and present from the American West.
Nick Capodice:
Right and to that point, having listened to you spin this history out to me. I have to ask Hannah, are they our national parks? The best idea we've ever had?
Hannah McCarthy:
Here's Mark's take.
Mark David Spence:
I would say that national parks can manifest the very best of the best virtues that we like to celebrate and acknowledge in the United States. But it's sort of a two pronged search for understanding and not just understanding, but how do I live with sort of the the anomaly of this virtue and lack of virtue?
Hannah McCarthy:
It's hard to deny the remarkable fact of these spectacular places. Protected places, places set aside for all to enjoy. Places that today are operated in a very different way than they were in the past. But that does not mean that the history of these places can go unexamined. In fact, I'd say allowing the parks to manifest the best virtues of the United States very much includes that history very much includes an examination of that history.
Mark David Spence:
People have to be inside of history. I mean, it's something we really need to know. We really need to know that we're walking on 20,000 year old graves, sometimes in certain areas.
Hannah McCarthy:
And for Mark, it isn't just the history. It's how these lands are being protected today and who gets to protect the lands.
Mark David Spence:
Indigenous peoples are related to these places. They are relationships with with animals. There's relationships with non animate beings. They have this binding relationship that's gone back since the first story was told.
Nick Capodice:
In other words, what better conservators than the people who know and are deeply embedded in this land?
Hannah McCarthy:
Alexandra E. Stern, who we heard from earlier, has a really good way of bringing this all together, I think.
Alexandra E. Stern:
I think that's that idea. I mean, maybe not in such a 19th century way, but that's still really, I think, undergirds the the kind of park ethos a little bit, this preservationist tendency to something of the past. And in that way, I think it erases right the ways in which we affect the land all the time. I mean, I'm thinking now, having recently actually been in Yellowstone, I mean, the number of people there is tremendous. I mean, it is full. Right. And you I mean, I think people think they're getting right, this kind of, you know, experience out of time. But I guess maybe for me as a historian, you know, it's like my experience is really actually affected by how many you know, there are a lot of people here and we're all shaping it, you know, in our ways. You know, the lovely roads we have to drive about the park, right. That's you know, that's shaping things, too. I mean, the Park Service, I mean, really is thoughtful. It really tries to be thoughtful about these things. But at the same time, there has to be access as well as right preservation.
Nick Capodice:
So to engage with the history of the parks also means engaging with how these lands themselves have been affected by that history.
Hannah McCarthy:
Which initially was purposefully not done right. Remove the indigenous people from this land and with it, erase the fact that they were stewards of this land at all. And when you do that, you find that the land changes pretty dramatically because there are no longer people cultivating it the way they had for thousands of years. And then it's like, Oh, shoot, how did that become overgrown? And how do we bring the quote unquote wilderness back to the way we found it?
Alexandra E. Stern:
I mean, yes, I think the erasure is intentional, although I will say the Park Service has really made an effort. So many of the treaties that were signed, that acquired parks, land that went to the federal government included rules about how indigenous peoples would still have access to that land, especially with gathering practices and also as a hunting ground. Right. Because that's in fact, that's what Yellowstone had been. Right. It had been sort of a shared tribal space of resources that no one one group had settled. And the parks has really tried, I think, especially in recent decades, to allow this kind of access to facilitate relationships with local groups. Because actually, if you look at any map of park land, it's almost always very close to indigenous reservations. Right. And that's because of that history that indigenous people had had always been there and been using that space. So I think there is a movement to try and make Indigenous people much more central to the park's story, which is, I think, really critical also to understand, right, conservation and how people interact with the land and how they shape it and what that means and what are good practices to use in land management. I think we can get far by thinking capriciously about who might have something to say about that.
Hannah McCarthy:
So here's the deal with Yellowstone. A few years after it was established as a national park, control of Congress flipped to the Democrats. Now, they were not particularly invested in crafting public spaces, providing public services, etc., etc.. And what that meant was no more national parks until 1890, when Republicans gained control again. And Yellowstone is just sitting out there and eventually the government sends in military to patrol it, to keep people and development out. That is most development with the exception of the Northern Pacific's railroad at Mammoth Hot Springs. But the National Park Service, with its park rangers and notions of stewardship and education, that isn't even established until 1918.
Nick Capodice:
Wow. So Yellowstone is actually an anomaly. It didn't kick start this mad rush to create a park system. And also, Hannah, just out of curiosity, this is the only person I was expecting to hear about. When exactly does Teddy Roosevelt come into play?
Hannah McCarthy:
Fair question. The national park system that we know today looks at preserved lands and their history in a very different way than the government did when Yellowstone was created. And right now, in 2022, some indigenous leaders see a potential to heal the wounds of the past, especially with the new National Parks director, Chuck Sams. He's the first tribal citizen to lead the parks system. So, you know, Nick, now that we know the history that the park's toes in its wake and yes, that includes a lot more. And Teddy Roosevelt, I think it may be time to get to know the national park system. I'll get started on.
Nick Capodice:
That and I'd appreciate it, Hannah, just not this second.
Hannah McCarthy:
No, I think we have given the people enough to think about for today.
Nick Capodice:
That does it for this episode, which was produced by Hannah McCarthy with help from me, Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer.
Hannah McCarthy:
Music In this episode by cast Silver Maple, Arthur Benson, Alexandra Woodward and Rocky Marciano.
Nick Capodice:
You can find this episode and many, many more at our website, civics101podcast.org. You can also find us on Apple Podcasts, Spotify or pretty much anywhere you can find other podcasts. NPR One. Stitcher. Grapesnout.
Nick Capodice:
You know Grapesnout, all the kids listen to it.
Hannah McCarthy:
Alright.
Nick Capodice:
And if you like us, give us a rating and a review. It helps our hearts quite a bit.
Hannah McCarthy:
Civics 101 is a production of HBR. New Hampshire Public Radio.
Nick Capodice:
Alright.
Hannah McCarthy:
Oh, you're jacking us up to 50 there, huh?
Nick Capodice:
I put myself up a little bit because apparently I'm a little more quiet than you. Because yours is like this.
Hannah McCarthy:
Like, yeah,
Nick Capodice:
Shrill.
Nick Capodice:
High pitched whine.
Hannah McCarthy:
Unlistenable. Basically, it's the teacher in Charlie Brown but worse.
Nick Capodice:
That is really horrible.
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Hannah McCarthy: [00:00:02] By the mid-19th century, the rumors had been going around for a while in the eastern U.S..
Megan Kate Nelson: [00:00:11] There had been trappers and some scouts who had been in there, and they had been telling stories, but no one believed them because they were always telling stories, you know, that seemed hard to believe in outlandish.
Hannah McCarthy: [00:00:23] Rumors of a place in the Northwest, in Wyoming, territory that was truly fantastical in description. This place supposedly had exploding geysers, shooting water 100 feet into the air. It had boiling springs. It had bubbling mud pockets. It was both beautiful and dangerous. But who could say if any of these rumors were true?
Megan Kate Nelson: [00:00:51] Really Yellowstone was one of the few unmapped places in the United States in 1870 and 71.
Hannah McCarthy: [00:01:00] This is Meghan Kate Nelson, author of Saving Yellowstone.
Megan Kate Nelson: [00:01:04] You know, lots of surveys had been out there. Lewis and Clark had kind of moved north of Yellowstone on their return trip and their big survey. But no federal officials had been there or even civil officials on the ground.
Hannah McCarthy: [00:01:16] This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:01:18] I'm Nick Capodice.
Hannah McCarthy: [00:01:19] And today we are telling the story of how a now unbelievably vast system found its rocky start. This is how America got its first national park, the first federally run place set aside for ostensibly all to enjoy. And that story, Nick, is inextricably tied to reconstruction, to railroad building and to the removal of indigenous people from their lands.
Megan Kate Nelson: [00:01:45] Indigenous peoples, of course, have been using Yellowstone for thousands of years as a thoroughfare and a camping site and a hunting ground. But they weren't telling any tales of Yellowstone to any Indian agents up until that point.
Nick Capodice: [00:02:02] Well, sure, because when it's your home, its existence is neither unbelievable nor astonishing. But real quick, what does Megan mean by Indian agent?
Hannah McCarthy: [00:02:10] Great, good question. So this is a position that was reformed several times over the course of history. Initially, it was a person appointed by the president to prevent conflict between indigenous people and non-Indigenous settlers and to remove indigenous people from lands taken or procured by the U.S. government, among other things. Eventually, it was more about facilitating assimilation into American culture and preventing indigenous people from leaving reservations without permits. By the time the position was eliminated in the federal government, Indian agents were thought by the public to be unscrupulous people. They didn't have a great reputation.
Nick Capodice: [00:02:50] Basically, you're telling me this is a whole other Civics 101 episode?
Hannah McCarthy: [00:02:52] You've no idea. It's so huge. Anyway, back to this rumored land of the Northwest. As soon as non-Indigenous Easterners learned that the rumors were indeed true, it was Go West, young man.
Megan Kate Nelson: [00:03:07] It wasn't until a group of kind of civic boosters in Montana went into the park in two different surveys in '69, and then, most importantly, in 1870. That was really the first time that the American public really knew about Yellowstone and what might be there. And it got Ferdinand Hayden's attention.
Hannah McCarthy: [00:03:29] Ferdinand Vandeveer Hayden, noted American geologist and former Civil War Union Army physician.
Megan Kate Nelson: [00:03:36] He had heard the stories and had always wanted to go to Yellowstone and had been frustrated in an attempt to go there ten years earlier. But it was really in the spring of 1871 that he started to lobby Congress to go to Yellowstone. And up to that point, most federal officials, you know, congressmen, the executive, really had no idea what was out there or if any of these rumors were true.
Nick Capodice: [00:04:01] I feel like we need to set the scene here for a moment. 1871. So the Civil War has only been over for about six years. And it's the reconstruction period, which is, you know, the government is trying to reintegrate the Confederate states back into the Union while preserving the rights of newly emancipated, formerly enslaved people and navigating the South's, quote, black codes which restricted and exploited black Americans. Everything is extremely vulnerable and tense. And Hayden, this geologist, he's like, yeah, now is the perfect time. Give me some money to go on an adventure.
Megan Kate Nelson: [00:04:42] For Hayden, it was part of his ambition to become the most well-known scientific explorer in America, perhaps even the world. He had that kind of grandiose of a of an idea of what his career would entail. And hearing about Yellowstone as a geologist I think was very tempting. He thought he would find a lot of evidence of lots of the debates and arguments going on in the field at the time, which mostly revolved around how old the earth was and how it had evolved as it had. Was it a series of volcanic eruptions? Was it erosion? Was it something else? Entirely cataclysmic events. And he felt like he could find those answers in Yellowstone.
Nick Capodice: [00:05:28] And that was convincing to Congress?
Hannah McCarthy: [00:05:30] No, not entirely. He made another argument as well. And this is the one that I think really got the federal government to bite, to give him money to the tune of $40,000 and marching orders to go along with it, basically. Hayden focused on what Yellowstone was going to do for the United States.
Megan Kate Nelson: [00:05:53] The Department of the Interior, in their instructions to Hayden, you know, said, go find out what is there, mineralogically, you know, hydrologically, topographically. Can it be farmed? Can it be ranched? Can it be mined? How can we bring this place into the United States as a productive landscape?
Hannah McCarthy: [00:06:14] In other words, we've acquired this territory to the West. There's this vast, unmapped space time to find out how we can start exploiting its resources.
Megan Kate Nelson: [00:06:24] I think it's important to know that Yellowstone was a Reconstruction project, and we don't usually think of Reconstruction in that way. Usually we talk about Reconstruction as a political process that was meant to bring the former Confederate states back into the Union politically and culturally, and meant to protect the new rights of black Southerners as citizens and then the men as voters. And when you look at Reconstruction from Yellowstone, I think you realize that that Reconstruction was a national process and that the federal government was, of course, interested in bringing the South back into the union. That was their focus. But they were also interested in bringing the West into the union through, getting to know it scientifically, surveying it, understanding what was there, parceling it out and selling it, providing for white migration and settlement, and dispossessing native peoples of those lands.
Hannah McCarthy: [00:07:25] And it wasn't just about staking physical control. Republicans in Congress knew that this was an important opportunity to build political power as well. If these Western territories became states and those states had Republican representatives, that would be a huge political boon. Not to mention the fact that it would keep the Democratic Party at bay.
Megan Kate Nelson: [00:07:47] They knew that the Democrats of the White South were growing in power, and especially after 1874, with redemption politics. They knew going forward that they were going to need the West.
Nick Capodice: [00:08:03] Alright. But before the Republican Party can get to all the potential political windfalls, this surveyor, Hayden, actually has to get out there and see what's what.
Hannah McCarthy: [00:08:12] Right. So Hayden, the geologist, selects his team and he heads west.
Megan Kate Nelson: [00:08:18] They took the Transcontinental Railroad from Omaha to Ogden, Utah. And by the time they left to move northward with a series of wagons, the team was about 50 people, which was a large, interesting mix. You know, it was scientists, cooks, laborers, assistants, who many of whom were the sons of congressmen.
Hannah McCarthy: [00:08:42] Also vitally important: Hayden brings along artists, a photographer who will be there to document that this place actually exists, that these natural wonders are real, so the people in the East can believe it and do something about it, and to really capture that sweeping, compelling glory of it all. They had a painter.
Nick Capodice: [00:09:02] Really?
Hannah McCarthy: [00:09:03] Oh, yeah.
Nick Capodice: [00:09:04] That's wonderful.
Megan Kate Nelson: [00:09:05] Thomas Moran was sent by Jay Cooke, an investment banker who was very interested in the Hayden survey because he was the the lead financial driver of the Northern Pacific Railroad, which he hoped would lay track north of Yellowstone and bring tourists there. And he knew Thomas Moran from Philadelphia, who already had a fairly good reputation as a landscape painter. And so he helped pay his way and sent him out to join Hayden in July. And Hayden welcomed him because he knew how important visual images would be in helping people to understand what actually was contained in Yellowstone and to really create it in the American mind.
Nick Capodice: [00:09:44] I was just wondering if the business sector was going to come into this at some point. I mean, giant swaths of land without much development seemed like they'd be candy to private industry.
Hannah McCarthy: [00:09:55] Absolutely. The northern Pacific would eventually have a little spur rail that went directly to. The northern entrance of the park for easy tourist access. Also, Jay Cooke, the guy who owns the Northern Pacific Railroad, he was an avid hunter and he was in support of preserving places for people like him to hunt.
Nick Capodice: [00:10:15] Alright. And speaking of what this land is going to be used for. Was anybody talking about the fact that there were already people utilizing this land? Did Haden actually believe he was going into untouched territory?
Megan Kate Nelson: [00:10:30] He does have those moments, especially in his public writing, where, you know, he's saying we are the first Americans to see this. Oh, and by the way, we followed a trail. He -- he says, you know, we turned our horses onto the trail. So obviously, indigenous people knew this place. They had been there often and often enough that they had actually their horses hooves and the and the travois that they used had dug these trails out. But he does not acknowledge really any indigenous presence or indigenous use of Yellowstone.
Hannah McCarthy: [00:11:06] When Megan says acknowledge she means in Hayden's writing about Yellowstone because he was perfectly aware of the fact that the expedition might indeed encounter people from any number of the many tribes who passed in and out of Yellowstone each season, even though this expedition did avoid conflict with tribes. It traveled with a cavalry escort, partially for that reason.
Mark David Spence: [00:11:34] The notion of Yellowstone is a wonderland is created by some of these early, early folks.
Hannah McCarthy: [00:11:39] This is Mark David Spence, author of Dispossessing the Wilderness Indian Removal and the Making of the National Parks.
Mark David Spence: [00:11:47] And then you get Thomas Moran doing the paintings, and that's when Congress blows its mind and goes, Oh, my God, when you have the paintings of Thomas Moran, lakes, trees, crags, just atmospheric weather, the way the clouds move in and move out, all that sort of stuff is all part of the sublime esthetic which educated people in the Americas would have learned from Europeans.
Hannah McCarthy: [00:12:11] Nick, have you seen these Moran paintings?
Nick Capodice: [00:12:13] I don't think so. Are these the ones that sort of look like giant Ansel Adams photographs, like beautiful depictions of Yellowstone and Yosemite?
Hannah McCarthy: [00:12:21] Yeah, they sort of look like heaven. Like if someone were to imagine heaven and paint it, they make Yellowstone look otherworldly, like, sort of divine and definitely not like the kind of place that human society had touched. These paintings would end up being highly influential to Congress, by the way, because, like Mark said, the sublime was an established concept for many Americans and a coveted aesthetic. To possess something sublime actually meant something.
Mark David Spence: [00:12:51] Yosemite and Yellowstone have all of those elements in spades, an eruption of the sacred into the world. And so these sort of landscapes are just there. They're not standard, they're not normal, they're just extraordinary. And to be among them and within them is to have a sanctifying experience, a saintly experience, in a way that's sort of what underlies the creation of a lot of the original early national parks.
Nick Capodice: [00:13:20] You know, I think this idea is still very much in the air today that many of our national parks represent the astounding, precious wilderness that we smartly had the wherewithal to protect.
Hannah McCarthy: [00:13:32] Which, by the way, is true, and the eventual decision to protect giant swaths of land in North America from the onslaught of industry and development that swallowed the rest of the country, you know, that's on its face. Great. But the idea that what is protected is this static, pure, quote unquote, wilderness erases millennia of human history. And in actual fact, preservation is defined as the actor process of applying measures necessary to sustain the existing form, integrity and materials of an historic property. But the existing form that Hayden and his expedition, for example, encountered was the result of millennia of human influence humans who had been or were about to be kicked off of that land.
Mark David Spence: [00:14:24] It's a place for humans or visitors not to remain if we're going to a national park to experience wilderness. But by definition, you can't remain. You have to leave.
Hannah McCarthy: [00:14:31] But of course, this land is not this separate, inhuman block of space, because the word wilderness itself implies that no one has been to or seen this place before or told stories about it. And of course, that isn't true.
Mark David Spence: [00:14:49] It's embedded with stories. It produces the material for stories. If wilderness is real, indigenous people had nothing in their brains for uncountable generations. It's not a wilderness. It's a story that's lived. It's a hell of a lot older than 1776.
Hannah McCarthy: [00:15:05] So how did this storied place become Yellowstone National Park and what happened to the tribes who were using it before the government began the project of forbidding their way of life? We'll get to that after the break.
Nick Capodice: [00:15:19] But first, if you're a Civics 101 listener, we think you might enjoy our newsletter. It's called Extra Credit. It's fun. It comes out every two weeks. It's full of all the stuff that Hannah and I can't squeeze into our episodes. You can subscribe at our website, civics101podcast.org.
Hannah McCarthy: [00:15:36] This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:15:38] I'm Nick Capodice.
Hannah McCarthy: [00:15:39] And today we are exploring the creation of America's First National Park, a creation that required a myth.
Alexandra E. Stern: [00:15:47] You know, people are very interested in in preserved land in this kind of outdoor recreation. But it's all kind of premised on this idea of an American wilderness and also this kind of pristine, sometimes called virgin land. Now, that kind of idea is an entire myth.
Hannah McCarthy: [00:16:08] This is Alexandra E. Stern, a history professor at the City College of New York.
Alexandra E. Stern: [00:16:13] The land that even the first British colonists in 1607 at Jamestown see is actually the product of thousands of years of human intervention. Right. Indigenous people here, at least 15,000 years, they have been shaping and living with and affecting the environment that entire time. So there is no virgin land and there is no pristine wilderness untouched by human beings such that. I think that idea. Right. It shows you kind of who counts in the view of 19th century Americans that they don't think of indigenous people necessarily as people or people who would kind of, you know, rank in affecting wilderness the same way. And that's in part because of their cultural blindness, right, to how what the indigenous relationship with land is compared to, let's say, a Euro-American relationship. There already is kind of this idea that we will want to save the best places, and Yellowstone in particular, which is the first park.
Nick Capodice: [00:17:17] And I know this is an important part of the pitch, right. This surveyor who we talked about, Vernon Hayden, he's been to Yellowstone. He's gathered information about the land, what he and his team saw, photographs and paintings. And he has to come back to the east and report it out and tell the American people, hey, we've got this pristine, untouched wilderness. You're going to love it.
Megan Kate Nelson: [00:17:41] In his popular piece for Scribner's Monthly he was articulating a lot of these sublime notions that here are landscapes we've never seen before. They are unique. They are American.
Hannah McCarthy: [00:17:53] This is Megan Kate Nelson again.
Megan Kate Nelson: [00:17:55] And at the end of that essay, he suggested that Yellowstone become a national park, that we keep it to enjoy for the benefit of the people. And underlying that whole notion was not only that that nature would be a wonderful place for people to to go to, to recreate, to kind of walk around and be out in the open air and enjoy that, but also in that second meaning of the word to recreate themselves. So this was a notion that was in the air.
Hannah McCarthy: [00:18:28] I just want to be clear. Hayden did not actually come up with this idea. A rep from the Northern Pacific Railroad put the bug in his ear by essentially saying, you know, wouldn't it be cool if Yellowstone was preserved in perpetuity by the federal government? And Hayden was like, Oh, yeah, that would be cool.
Nick Capodice: [00:18:48] Why does the Northern Pacific Railroad keep getting brought up here? Why are they, like, sticking their noses into park business?
Hannah McCarthy: [00:18:54] Well, they're seeing that there is this grand natural wonder right in the proposed path of the railway. They're building the kind of wonder that people, maybe even quite wealthy people, might make a destination out of. And Jay Cook, the mogul who owns the Northern Pacific, has enough money and influence to drum up public interest.
Nick Capodice: [00:19:17] So, in other words, tourism.
Hannah McCarthy: [00:19:19] Oh, yeah.
Nick Capodice: [00:19:20] So how does Yellowstone finally end up becoming Yellowstone?
Hannah McCarthy: [00:19:25] Well, Hayden and Cook both start lobbying in Washington.
Megan Kate Nelson: [00:19:28] These arguments were pretty convincing that Yellowstone was this amazing natural wonder that its geothermal regions in particular were unique in all the world and should be saved from development. That Hayden was very specific and including in these reports that he helped the public lands committees to write that kind of these twin arguments, that there were already entrepreneurs there hoping to build hotels and spas, and that this was going to be an eyesore. Right. That this was going to be terrible and nobody wanted this kind of development in Yellowstone.
Hannah McCarthy: [00:20:07] And then do you remember how Hayden convinced the government to give him money to go in the first place?
Nick Capodice: [00:20:13] Yeah. Like to figure out what Yellowstone can do for them, how to make money for America through mining or farming and stuff like that.
Megan Kate Nelson: [00:20:20] The other argument was that Yellowstone was useless. So in his reports and also kind of in response to those Department of Interior instructions, Hayden said, Look, you can't use this to farm. You can't farm on top of a caldera. That's not going to work. And there's no the water sources are kind of compromised. Right. Because they have this superheated, very mineral water in them. So you can't farm there. You can't graze there. He determined there was no gold or silver or copper to be mined there. And this often comes up in a lot of preservation history that people argue, well, this land can't be used for anything else.
Hannah McCarthy: [00:21:04] The way he saw it, Yellowstone had proven to be a place that would not be a great resource for farmers or miners. The United States is unlikely to be able to exploit it in that way. But it is sublime, it is beautiful, and the preservation of beautiful places for public enjoyment. That was already a pretty well accepted concept in America, something we borrowed from England at this point. You already had a fairly famous designer of outdoor spaces, Frederick Law Olmstead building parks in New York City.
Megan Kate Nelson: [00:21:37] So those were the two arguments and those were very convincing to the vast majority of Republicans who, you know, it's important to note at this time that Republicans and Democrats had sort of opposite ideologies as they do today. So Republicans were very interested in creating a national infrastructure, in providing all kinds of services for the people and protecting the American people's rights and using the federal government power to do so. And so this was convincing to most of them.
Nick Capodice: [00:22:05] Okay. But this is the Reconstruction period. The United States is recovering from civil war. Who in Congress is going to agree to budget for the preservation of a giant park?
Hannah McCarthy: [00:22:17] Well, the thing is, they didn't the Yellowstone Act did not come with appropriations, aka money to operate. The act was proposed in December of 1871 and became law in March of 1872. It was not a hard sell in Congress.
Nick Capodice: [00:22:33] In ten weeks. That's quick. How did Americans respond?
Hannah McCarthy: [00:22:36] Well, many people, including members of Congress who Hayden thoughtfully supplied with copies, had read that essay in Scribner's Monthly, in which Hayden sang the praises of Yellowstone.
Megan Kate Nelson: [00:22:45] He never explicitly argued that Yellowstone was the most American place that you could find on the continent. But many people around him were, and many newspaper editors, in the wake of the passage of the Yellowstone Act, were arguing that it really was only in America that the creation of a national park could happen, that this was going to be a democratic landscape of tourism access for all the people. Of course, in that notion, white Americans are completely ignoring the indigenous peoples who had been stewards of that land for thousands of years, many of whom were already forced onto reservations by the federal government and then the Lakota peoples, whose defense of their lands east of Yellowstone would become a central concern for the federal government in in the next couple of years.
Hannah McCarthy: [00:23:39] Now, I just want to note that there have been several Indian appropriations acts over the course of American history, but the reservation system was established by the 1851 Act. The history of treaties made and broken, of reservations of forced movement, forced assimilation and extermination efforts. That is a whole series here at Civics 101. For this episode, it is just important that, you know that the US government had already forcibly limited native movement at this point.
Nick Capodice: [00:24:15] Okay, but I have to ask, because we know there were multiple tribes who use that land for various purposes, including as a home. Did the Yellowstone Act break any treaties which frankly the US was not at all that shy about doing.
Megan Kate Nelson: [00:24:29] Because Yellowstone was a thoroughfare for multiple indigenous communities. During this period, no one tribal nation claimed it as their own, which actually worked to the federal government's benefit later because they did not have to negotiate with any indigenous tribes in order to take that land from them. There were Shoshone and Shoshone Bannock peoples and Crow peoples who are already on reservations around the periphery of Yellowstone. But none of Yellowstone proper had been negotiated at all.
Nick Capodice: [00:25:05] And like you said, many of these native people had already been relegated to reservations. The idea behind that being, as far as I understand it, to both keep native peoples off land the U.S. wanted to use and to control those tribes down to their cultural practices and where they were allowed to go.
Megan Kate Nelson: [00:25:26] That was the goal was to to basically annihilate them culturally, you know, take away their language, any of their religious traditions. Their foodways and bring them into the American body politic. Although the 14th Amendment, which is passed during reconstruction, explicitly gives the rights of citizenships to anyone born or naturalized in the United States except Indians untaxed, which is the term that they used, which meant any native people living off the reservation. People like Sitting Bull and his Papa Lakota, who are out, you know, they called them sometimes fugitive Indians or, you know, sort of Indians on the move. They were not contained and not surveilled, and therefore they were not citizens and were not able to claim any kind of citizenship. Right. From the federal government. And and, in fact, native peoples would not earn fully full citizenship rights until the 20th century.
Nick Capodice: [00:26:28] Alright. Let's pause here for a second and talk about the Lakota. Megan mentioned that they were defending their lands even after the establishment of Yellowstone.
Hannah McCarthy: [00:26:36] Yes. Now, this is where Sitting Bull comes in. He was a Lakota leader who led his people in the resistance against US incursion. And this part of the story is really important, because though the United States tried their damnedest, there was resistance, often successful resistance to this forceful westward expansion into indigenous land.
Megan Kate Nelson: [00:27:00] He was a leader of the Lakota, one of several bands of the Lakota people who are themselves a part of a much larger group of seven council fires of what the Americans called the Sioux at that point. And what they they called themselves the Chaco in. And so he was always among a council of leaders, and they made decisions together about how they were going to move forward. But he became a very strong voice for resistance to the federal government in this period, and especially after 1868, which was the big year of the Treaty of Fort Laramie, when a lot of tribal nations in this region, in the Northwest were making agreements with the federal government and moving to reservations. And Sitting Bull was very consistent about his resistance to that. He wanted to remain in his homelands. He wanted to be able to hunt bison herds for his people, for their survival. And he was constantly fighting for that. And it was really interesting in this moment, in 1871, 72, he begins to react to the presence of Northern Pacific surveyors who are trying to build their track right through the heart of Lakota Country from the Missouri River, all the way to the Yellowstone Basin.
Nick Capodice: [00:28:22] The Northern Pacific staking its claim once again.
Hannah McCarthy: [00:28:25] And Sitting Bull wouldn't have it.
Megan Kate Nelson: [00:28:28] Always he was consistent in his message. Always his emissaries were consistent in their message, which was, you know, we want to be at peace. We don't want to fight with you, but you are in our lands. And if you want peace, you're going to have to keep your white settlers out of our homelands and you're going to have to keep the northern Pacific out. And the Indian agents themselves were also very consistent in saying that's not going to happen.
Hannah McCarthy: [00:28:56] And, of course, it did not happen. Now, even if you don't know Sitting Bull, there is a chance you have heard of the Battle of Greasy Grass, aka Nick, the Battle of Little Bighorn, a.k.a. Custer's Last Stand. This was a watershed moment in indigenous US relations, where a coalition of Lakota, Cheyenne and Arapaho Warriors defeated U.S. forces in 1876.
Megan Kate Nelson: [00:29:21] That victory that the Lakota and their allies had at Little Bighorn was astonishing, and it was by far their most kind of impressive victory. But it was also a terrible moment. And Sitting Bull knew this, that even though they had gained the field on this day and successfully defended their homeland, it was going to bring the full power of the federal government down on their heads. And it, in fact, did. And Sitting Bull made the decision to move his Band of Papa Lakota up to Canada.
Hannah McCarthy: [00:29:54] So why is this important? Why did the battle of greasy grass come into this? How is this about Yellowstone National Park? Because that railroad marketed itself as having the Yellowstone National Park and dining car route to the Pacific Coast. You can buy a vintage map advertisement at Walmart today if you want, because Yellowstone and the railroad and native removal are all the same story. Here's Mark David Spence again.
Mark David Spence: [00:30:24] There's no reason to assume or even argue incessantly that native removal doesn't also touch the things that we consider the best and most noble aspect. Operations or inherited virtues. And I would say it's dangerous to forget that we may not fix it or cure it, but it's a very dangerous to forget that native removal, the admiration for national parks. They're just inseparable. They're definitive of what we are as a nation. National development and Indian policy go hand in hand.
Nick Capodice: [00:31:00] So, Hannah, over the course of this whole episode, I keep coming back to this pretty famous Wallace Stegner quote, which made its way into the Ken Burns documentary about the national parks. Stegner, by the way, was a novelist, environmentalist and historian of the American West, and he said national parks are the best idea we ever had.
Hannah McCarthy: [00:31:20] Yes, Stegner, who notably minimized and erased the indigenous past and present from the American West.
Nick Capodice: [00:31:26] Right and to that point, having listened to you spin this history out to me. I have to ask Hannah, are they our national parks? The best idea we've ever had?
Hannah McCarthy: [00:31:37] Here's Mark's take.
Mark David Spence: [00:31:39] I would say that national parks can manifest the very best of the best virtues that we like to celebrate and acknowledge in the United States. But it's sort of a two pronged search for understanding and not just understanding, but how do I live with sort of the the anomaly of this virtue and lack of virtue?
Hannah McCarthy: [00:32:02] It's hard to deny the remarkable fact of these spectacular places. Protected places, places set aside for all to enjoy. Places that today are operated in a very different way than they were in the past. But that does not mean that the history of these places can go unexamined. In fact, I'd say allowing the parks to manifest the best virtues of the United States very much includes that history very much includes an examination of that history.
Mark David Spence: [00:32:36] People have to be inside of history. I mean, it's something we really need to know. We really need to know that we're walking on 20,000 year old graves, sometimes in certain areas.
Hannah McCarthy: [00:32:45] And for Mark, it isn't just the history. It's how these lands are being protected today and who gets to protect the lands.
Mark David Spence: [00:32:53] Indigenous peoples are related to these places. They are relationships with with animals. There's relationships with non animate beings. They have this binding relationship that's gone back since the first story was told.
Nick Capodice: [00:33:06] In other words, what better conservators than the people who know and are deeply embedded in this land?
Hannah McCarthy: [00:33:13] Alexandra E. Stern, who we heard from earlier, has a really good way of bringing this all together, I think.
Alexandra E. Stern: [00:33:19] I think that's that idea. I mean, maybe not in such a 19th century way, but that's still really, I think, undergirds the the kind of park ethos a little bit, this preservationist tendency to something of the past. And in that way, I think it erases right the ways in which we affect the land all the time. I mean, I'm thinking now, having recently actually been in Yellowstone, I mean, the number of people there is tremendous. I mean, it is full. Right. And you I mean, I think people think they're getting right, this kind of, you know, experience out of time. But I guess maybe for me as a historian, you know, it's like my experience is really actually affected by how many you know, there are a lot of people here and we're all shaping it, you know, in our ways. You know, the lovely roads we have to drive about the park, right. That's you know, that's shaping things, too. I mean, the Park Service, I mean, really is thoughtful. It really tries to be thoughtful about these things. But at the same time, there has to be access as well as right preservation.
Nick Capodice: [00:34:27] So to engage with the history of the parks also means engaging with how these lands themselves have been affected by that history.
Hannah McCarthy: [00:34:35] Which initially was purposefully not done right. Remove the indigenous people from this land and with it, erase the fact that they were stewards of this land at all. And when you do that, you find that the land changes pretty dramatically because there are no longer people cultivating it the way they had for thousands of years. And then it's like, Oh, shoot, how did that become overgrown? And how do we bring the quote unquote wilderness back to the way we found it?
Alexandra E. Stern: [00:35:03] I mean, yes, I think the erasure is intentional, although I will say the Park Service has really made an effort. So many of the treaties that were signed, that acquired parks, land that went to the federal government included rules about how indigenous peoples would still have access to that land, especially with gathering practices and also as a hunting ground. Right. Because that's in fact, that's what Yellowstone had been. Right. It had been sort of a shared tribal space of resources that no one one group had settled. And the parks has really tried, I think, especially in recent decades, to allow this kind of access to facilitate relationships with local groups. Because actually, if you look at any map of park land, it's almost always very close to indigenous reservations. Right. And that's because of that history that indigenous people had had always been there and been using that space. So I think there is a movement to try and make Indigenous people much more central to the park's story, which is, I think, really critical also to understand, right, conservation and how people interact with the land and how they shape it and what that means and what are good practices to use in land management. I think we can get far by thinking capriciously about who might have something to say about that.
Hannah McCarthy: [00:36:30] So here's the deal with Yellowstone. A few years after it was established as a national park, control of Congress flipped to the Democrats. Now, they were not particularly invested in crafting public spaces, providing public services, etc., etc.. And what that meant was no more national parks until 1890, when Republicans gained control again. And Yellowstone is just sitting out there and eventually the government sends in military to patrol it, to keep people and development out. That is most development with the exception of the Northern Pacific's railroad at Mammoth Hot Springs. But the National Park Service, with its park rangers and notions of stewardship and education, that isn't even established until 1918.
Nick Capodice: [00:37:14] Wow. So Yellowstone is actually an anomaly. It didn't kick start this mad rush to create a park system. And also, Hannah, just out of curiosity, this is the only person I was expecting to hear about. When exactly does Teddy Roosevelt come into play?
Hannah McCarthy: [00:37:29] Fair question. The national park system that we know today looks at preserved lands and their history in a very different way than the government did when Yellowstone was created. And right now, in 2022, some indigenous leaders see a potential to heal the wounds of the past, especially with the new National Parks director, Chuck Sams. He's the first tribal citizen to lead the parks system. So, you know, Nick, now that we know the history that the park's toes in its wake and yes, that includes a lot more. And Teddy Roosevelt, I think it may be time to get to know the national park system. I'll get started on.
Nick Capodice: [00:38:08] That and I'd appreciate it, Hannah, just not this second.
Hannah McCarthy: [00:38:11] No, I think we have given the people enough to think about for today.
Nick Capodice: [00:38:32] That does it for this episode, which was produced by Hannah McCarthy with help from me, Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer.
Hannah McCarthy: [00:38:43] Music In this episode by cast Silver Maple, Arthur Benson, Alexandra Woodward and Rocky Marciano.
Nick Capodice: [00:38:50] You can find this episode and many, many more at our website, civics101podcast.org. You can also find us on Apple Podcasts, Spotify or pretty much anywhere you can find other podcasts. NPR One. Stitcher. Grapesnout.
Nick Capodice: [00:39:03] You know Grapesnout, all the kids listen to it.
Hannah McCarthy: [00:39:06] Alright.
Nick Capodice: [00:39:08] And if you like us, give us a rating and a review. It helps our hearts quite a bit.
Hannah McCarthy: [00:39:12] Civics 101 is a production of HBR. New Hampshire Public Radio.
Nick Capodice: [00:39:15] Alright.
Hannah McCarthy: [00:39:17] Oh, you're jacking us up to 50 there, huh?
Nick Capodice: [00:39:19] I put myself up a little bit because apparently I'm a little more quiet than you. Because yours is like this.
Hannah McCarthy: [00:39:23] Like, yeah,
Nick Capodice: [00:39:24] Shrill.
Nick Capodice: [00:39:27] High pitched whine.
Hannah McCarthy: [00:39:28] Unlistenable. Basically, it's the teacher in Charlie Brown but worse.
Nick Capodice: [00:39:32] That is really horrible.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
In the years after World War II, twelve countries in North America and Europe got together to form an alliance. This alliance, known as the North Atlantic Treaty Organization, would build up the collective military and security strength of every country involved - so an attack on one country would mean an attack on them all. How does a security alliance between dozens of countries with different governments, interests, and military power, even work? What role does NATO play in international war and peace today?
Helping us answer those questions are Marla Keenan, an adjunct senior fellow at the Stimson Center, focusing on international security, including human rights in armed conflict, and the protection of civilians, and Rachel Rizzo, a senior fellow at the Atlantic Council’s Europe Center whose research focuses on European security, NATO, and the transatlantic relationship.
The war room in Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.
A council meeting at NATO headquarters in Brussels, Belgium.
NATO trans.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.
Hannah McCarthy:
Every time in a movie that I see groups put aside differences to just all commit to the same goal. It is truly heartwarming for me. Like it does something chemical in my brain.
Nick Capodice:
Like like what kind of scene?
Hannah McCarthy:
Like in Lord of the Rings. Why...don't you do it!
Nick Capodice:
I'm sorry. Everyone out there. I don't like Lord of the Rings. And maybe this is going to end my career. It's Civics one one. But I just don't like those movies.
Hannah McCarthy:
All of the good and decent creatures of the world banding together to fight a singular evil, including trees. It would mean the destruction. Yeah. Of life.
Nick Capodice:
You like that part when everybody comes together from all these different places to battle this big, evil force and then go back to their own lands to probably fight each other in another 50 years. Well, including ghosts. Including ghosts that come out of a cave.
Hannah McCarthy:
Yeah, I like it all. Because guess what? The epic gathering of armies from across lands is not just a fantasy. In fact, the United States is one of 30 countries that have all sworn to stand together in the face of an attack and an intergovernmental security alliance stretching from North America to Europe.
Nick Capodice:
You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy:
I'm Hannah McCarthy. And today we are going to talk about one of the most powerful defensive alliances in the world.
Archival Audio:
The North Atlantic Treaty Organization.
Nick Capodice:
More powerful than ghosts in a cave.
Hannah McCarthy:
I'm not even convinced you've seen the.
Nick Capodice:
Kings in the hole in the cave. And they come and he's like, Please, Joe. Okay, fine. And they just kill everyone. You bow to no one.
Archival Audio:
We are moving into an era in which that physical forces cast a pall over our world. It kept the peace of Europe and the Atlantic through 12 dangerous years like these have always kept NATO's forces prepared for a possible attack. And tonight, the threat from Russian President Vladimir Putin may be the most tenuous moment for NATO's in decades.
Archival Audio:
An armed attack against one or more of the allies in Europe or in North America shall be considered an attack against them all.
Marla Keenan:
Yes. So NATO is a security alliance. It's the Transatlantic Security Alliance that's composed of 30 member countries, including the United States. My name is Marla Keenan. I'm an adjunct senior fellow at the Stimson Center, and I've been working with an on NATO issues since 2007. So my primary focus is on the protection of civilians and armed conflict.
Hannah McCarthy:
We're going to go back to a time when the United States was really entering the world stage in a different way as a different kind of power. And that would be the end of World War Two. 52 countries came together to create the United Nations to maintain peace and prevent another world war.
Archival Audio:
The untold destruction that has been wrought. Nor can we forget how close our whole civilization has come to utter ruin.
Hannah McCarthy:
The countries that joined the United Nations agreed to several key things.
Archival Audio:
This member of the United Nations is under solemn obligation to maintain international peace and security. Each is bound to settle international disputes by peaceful means, to refrain from the threat or use of force against the territory or independence of any country, and to support the United Nations in any action it takes to preserve the peace.
Marla Keenan:
Any country in the world can respond to a threat upon its people or its land. It's called the inherent right to self defense. But if there are other things happening, for example, it's quite helpful to have the United Nations who can get together and make a collective decision about what needs to happen and what type of operations there need to be. So for example, the UN will often mandate a peacekeeping mission in a country that's either requested or isn't capable of providing security for its own population.
Nick Capodice:
Basically, the U.N. says that you shouldn't use force unless it's to defend yourself. And if you need help doing that, the U.N. gives other countries the ability to help. So what I want to know is if we have the UN, why also have NATO's how are they different?
Marla Keenan:
NATO is a security organization, so it is focused specifically on securing the citizens and the space of Europe. Right. So a kind of different approach to global order versus like very protection, free and very security focused on a specific area of land and people.
Hannah McCarthy:
Even though 52 countries originally signed on to the UN Charter, there were still disputes. And in the years after World War Two there was one country in particular that was making everyone else kind of nervous.
Archival Audio:
Russia had swallowed up eight European countries without firing another shot other than those of the execution squads.
Hannah McCarthy:
Now, the United Nations is primarily a peacekeeping organization, as we've said. But as the Soviet Union continued to spread its power, some nations decided, you know what, maybe we need to escalate this a little bit. And the United States, which had an extremely powerful military and the advantage of being separated by the ocean, was well positioned to take the lead. President Truman had also made it U.S. policy to prevent the spread of Soviet power and a little thing called the Truman Doctrine.
Nick Capodice:
Right. This is the U.S. basically calling out the Soviet Union and saying if anyone else feels threatened by the Soviet Union, we, the United States are going to help.
Archival Audio:
I believe that it must be the policy of the United States to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressure.
Hannah McCarthy:
And in Europe especially, this threat of expansion was sometimes right at the border. So eventually the United States and 11 other countries got together and said, we're going to form an alliance that will help make us all better prepared to defend against an attack. The 12 countries were for anyone who's interested Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, the United Kingdom and the United States.
Marla Keenan:
NATO provided sort of that first bulwark protection against the Soviet Union and any security operations that they might run. So, for example, it gave us the ability to to have not the US be the front line, but for the European allies to be strengthened by the US's support and also for the European allies to help support the United States.
Rachel Rizzo:
The Washington treaty was signed in Washington, D.C. in 1949, and it's basically the founding document that the entire NATO alliance is built. Upon. So my name is Rachel Rizzo, and I am a senior fellow at the Atlantic Council's Europe Center, where I focus on the US European security relationship, NATO Germany and trans schism more broadly.
Hannah McCarthy:
Quick note here, you'll hear the word ally throughout this episode. When we say ally, we mean a country that is part of NATO. At the signing of the treaty in 1949, President Truman emphasized the geographical importance of NATO.
Archival Audio:
In this treaty, we seek to establish freedom from aggression and from the use of force in the North Atlantic community. This is the area which has been at the heart of the last two world conflicts.
Nick Capodice:
It's one thing to say we are all in alliance, but what does the treaty actually say?
Hannah McCarthy:
Okay, the treaty has 14 articles that lay out how the alliance will work.
Rachel Rizzo:
And they cover a whole array of topics. So, for example, Article two discusses how NATO's members will contribute toward the development of peaceful and friendly international relations by strengthening their free institutions, by promoting conditions of stability and well being, trying to eliminate conflict in their international economic policies and encouraging economic collaboration. Article three talks about how members will actually achieve the objectives of the Washington treaty and says that the members will maintain and develop their individual and collective capacity to resist armed attack. So basically, as we understand it today, spend enough on defense to maintain a credible military and contribute to the mutual defense of all alliance members, which now are 30. So and then it talks a little bit about how countries can both join and leave the alliance. So while the treaty isn't long, it is pretty comprehensive.
Nick Capodice:
So allies have to agree to spend a certain amount of money on their own military.
Hannah McCarthy:
Yeah, because it's not really fair to be part of an alliance if you're not actually contributing to that alliance. Right. Otherwise, you're just kind of a hanger on, like, you know, those stories of various species who live together because they get something from one another like that smaller fish that hangs out with sharks and like cleans their teeth. So it's like one of those examples of those wonderful symbiotic relationships of nature.
Nick Capodice:
Yeah. Like the CNN Army and the clownfish.
Hannah McCarthy:
Yeah, exactly. Basically, what I'm saying is that being a part of this alliance means that a country is contributing in some way to the goal of that alliance by building up its own security. And lately, there's been an increased focus on the amount of money allies are actually contributing.
Rachel Rizzo:
Part of Article three, you know, it says that the members will maintain and develop their collective capacity to resist armed attack, which means maintaining a credible military. This is why in the last few years, but actually for decades, we've talked about defense spending, how much European allies are spending on defense. So if you remember during the Trump administration, there was a lot of focus on how European members of the NATO alliance weren't meeting their defense spending goals. And those goals are to spend 2% of their GDP on defense by the year 2024. And for years, allies have been measuring their their movement towards that goal. And in the last few years, there has been an increased number of allies who are now credibly going towards 2%.
Nick Capodice:
Why is how much money a NATO's ally spends on defense such a big deal now when NATO's been around for decades?
Rachel Rizzo:
It wasn't because of the the harsh rhetoric of the past president. It was actually spurred by the Russian invasion of Crimea in 2014.
Hannah McCarthy:
In 2014, Russia invaded Ukraine and annexed the peninsula of Crimea.
Archival Audio:
The moment Russian troops smashed their way into Ukraine's Crimea air base backed by armored vehicles, gunfire and stun grenades. Special Forces supported by pro-Russian militia.
Rachel Rizzo:
Which is really when we saw multiple allies start turning around, years of defense spending decreases and actually start paying attention to how they were spending and what they were spending it on.
Nick Capodice:
Can I just clarify something? Yeah. Does NATO have its own military? Like, are there NATO, tanks and NATO planes lying around?
Hannah McCarthy:
No, no, no. So Rachel says that this is a common misconception.
Rachel Rizzo:
NATO doesn't have troops under its own command. I think that's really important to remember. There's not a head, you know, NATO, General, that. Has a whole army at their disposal, right? This is because it's a collective alliance. Everyone contributes basically their military, their assets as they see fit. And NATO also doesn't really own that much military equipment itself. It owns some airborne warning and control systems, aircraft and patrol aircraft. But it's not like there are a bunch of NATO's planes sitting in Brussels ready to be deployed.
Nick Capodice:
Okay. So you've got 30 different countries with different sized militaries, different governments, different interests, but they're all in agreement about this one thing. They are in agreement about defending the collective group from an attack. So if there is no central military, how do they do that?
Rachel Rizzo:
I think the most important thing is this idea of consensus and the fact that the reason that NATO is strong is because it's decisions are made. With every single ally at the table. It forces compromise. It forces conversations. Allies who might come to the table with different ideas or security concerns have to find common denominator with their fellow NATO allies, and NATO isn't led by any one country. I think that there's this misconception that just because the United States is militarily, economically the most powerful ally in NATO, that it somehow has a greater say in NATO's decision making than other countries. And while it does hold great sway, its role isn't any more important, at least in my mind, than the 29 other members because of the importance of consensus building.
Hannah McCarthy:
This is Marla Keenan again.
Marla Keenan:
Yeah. So it's less about NATO doing for the specific country as it is the the collective contribution that NATO allies make to the alliance then creates more security for all of the allies. Right. So, you know, it's difficult to think about it in terms of like, well, the US contributes X, Y and Z, and that means that they deserve A, B and C. It doesn't really work that way. It's contributions to the alliance and not to specific countries.
Hannah McCarthy:
NATO headquarters themselves are in Brussels, Belgium, and each ally of NATO has an ambassador, a representative and supporting staff. More than 4000 people work at NATO headquarters and there are NATO outposts around the world.
Marla Keenan:
There's also an international staff that is sort of the if you think of it as sort of the secretariat of all of the allies. So there is a secretary general. The current secretary general is a gentleman from Norway named Jens Stoltenberg, and he basically serves a four year term and he's the chief administrator and the international envoy for NATO, but he's representing NATO, the large umbrella and not his country. So his country, Norway, will also have a permanent mission that does the work on behalf of the country.
Hannah McCarthy:
NATO has something called the North Atlantic Council, which includes the Secretary General and the permanent representatives of each country. The North Atlantic Council is the decision making body of NATO.
Nick Capodice:
So let's say that one country is under threat. How do we get from a country that needs help to an actual response from NATO's allies?
Hannah McCarthy:
That gets us into how the North Atlantic Council works and the two biggest parts of the Washington treaty that we haven't talked about yet. Articles four and five. These two articles lay out how NATO responds to a threat, and we'll get into that right after this break.
Nick Capodice:
But first, if there are any listeners out there who just can't get enough civics, you should know that we have a fun biweekly newsletter. It's called Extra Credit. It's free, it's full of fun stuff. And you can sign up at our website Civics on one podcast dot org.
Hannah McCarthy:
So, Nick, I want to talk about a movie you love. There's this scene in Dr. Strangelove or How I Learned to Stop Worrying and Love the Bomb. Stanley Kubrick's satirical film about the Cold War, where there are a bunch of politicians gathered in a giant underground room known as the War Room that has a huge round table.
Archival Audio:
Gentlemen, you can fight in here. This is the war room.
Hannah McCarthy:
Now, NATO's headquarters might not be in an underground bunker, but the place where allies meet looks a lot like the war room of Dr. Strangelove. I want you to picture a giant round table so big that each person has a microphone at their seat so that everyone at the table can hear them.
Nick Capodice:
Like a massive, extremely tense Thanksgiving dinner.
Hannah McCarthy:
Yeah, exactly. Because the way that NATO actually works on a logistical level depends on every single ally having a seat at the table, literally and figuratively. We've talked about how NATO was formed. Now let's get into how it looks in action. We'll start with Article four of the Washington Treaty.
Rachel Rizzo:
Article four is based on consultations.
Hannah McCarthy:
This is Rachel Rizzo.
Rachel Rizzo:
It says that NATO's members can consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the parties are threatened. These aren't invoked very often. In fact, every decision that NATO makes has to be made at the level of the North Atlantic Council, which is the highest decision making body within the alliance. If one ally decides to say no, then the decision isn't made.
Nick Capodice:
Frankly, I'm curious about how often that consensus has been reached, but I'm also wondering what happens if everyone can't agree or if a situation needs to be addressed quickly and it's taking too long for everyone to get on the same page.
Hannah McCarthy:
Okay, let's start there. Marla says that if all 30 allies don't reach a consensus or they can't reach a consensus quickly enough, some of the allies can still work together. One example she talks about was in Libya in 2011 when civil war broke out and the Libyan government began attacking civilians.
Archival Audio:
Gaddafi remains defiant. He gathered supporters, including women and children, around his compound and other key targets, essentially forming a human shield.
Hannah McCarthy:
The U.N. called for a cease fire and gave foreign governments permission to enforce that cease fire in order to protect civilians.
Marla Keenan:
And so that kind of gave the international blessing for there to be an operation there. The interesting part was that NATO could not come to an agreement quick enough to deploy. And so what happened is a few of the allies, including the US, decided to do sort of a smaller coalition of the willing until NATO's could then get to its decision making mechanism where it then did engage in that conflict. So there are different ways to kind of work around. But in the end, if NATO's is going to commit itself, it has to be all 30 countries. Now, that doesn't mean that all 30 countries have to be in the actual operations. It just means that that decision has to be made together.
Nick Capodice:
How often does that happen?
Hannah McCarthy:
Article four has been invoked seven times in NATO's history.
Rachel Rizzo:
So the last time we saw an article for consultation was actually last month in light of the Russian invasion of Ukraine, when the Baltic states decided to call for Article four consultations at the North Atlantic Council.
Hannah McCarthy:
We're taping this episode in April 2022, in the second month of Russia's invasion of Ukraine.
Archival Audio:
Vladimir Putin finishing this speech, essentially declaring war on Ukraine. We heard the sound of explosion.
Hannah McCarthy:
As Rachel said earlier, NATO considers Russia a big threat and Russia similarly considers NATO a big threat.
Marla Keenan:
So I'm going to read Article four for you. The parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the parties is threatened. So here, when they're talking about parties, they're talking about allies. And so some of the Baltic states got together and said, hey, we think we need to talk about this because this is obviously very close. Poland, for example, is an ally. And when we're talking about attacks happening in Lviv, that is literally right over the border from Poland. So it was incredibly important that they got together and they pulled this meeting together very quickly. And it kind of started the discussion about the crisis in Ukraine. People talk, especially in the last month or so, about enhanced forward presence. And basically after Russia invaded Crimea illegally in 2014, NATO's allies realized that they really needed to step up deterrence in the eastern part of the alliance. So Poland, Latvia. Estonia and Lithuania all are home to multinational battalions that are on a rotational, persistent, rotational basis that are meant as a tripwire deterrence measure to help protect the NATO's eastern flank. And in light of Russia's invasion of Ukraine over the last month, they are increasing not only their presence in these four multinational battalions, but also allied presence in places like Romania and Bulgaria and Slovakia to to reassure allies that are in the southeast region of the alliance.
Nick Capodice:
But Ukraine is not an ally of NATO, and that's something that's come up a lot lately in the news. Ukraine has wanted to become an ally of NATO, but Russia doesn't really want that to happen.
Hannah McCarthy:
Yeah, so we've said that an ally is a country that is part of NATO, right? There are also partners that aren't part of the NATO alliance, but share interests or in the case of Ukraine, really want to be part of the alliance.
Nick Capodice:
All right. But what is the specific difference between a partner and an ally?
Rachel Rizzo:
The big difference here is that NATO allies are bound together by the Washington treaty. They are obligated by treaty to defend one another. A partner isn't a partner doesn't have that same security. But there are significant partners that the the alliance has around the world.
Hannah McCarthy:
So partners of NATO can be individual countries or even other multi-country alliances.
Rachel Rizzo:
There's the Mediterranean dialog that has partners around the Mediterranean. There's the Istanbul Cooperation Initiative. There's also the Enhanced Opportunity Partnership Program that has six members of it, including Sweden and Finland and Ukraine.
Hannah McCarthy:
And countries like Sweden and Finland have shown interest in joining NATO. In fact, by the time you hear this episode, the makeup of NATO may be different.
Nick Capodice:
And Rachel also mentioned Ukraine, which makes me think about the fact that Russia has been engaging in the kind of warfare that spurred the creation of NATO in the first place spreading into nearby European territory by force.
Hannah McCarthy:
But because Ukraine is not an ally, to partner NATO as an alliance is not obliged to directly defend Ukraine. As of right now, NATO has been focused on keeping the invasion contained in Ukraine.
Nick Capodice:
But NATO countries can still provide assistance to Ukraine without having to wait for NATO's consensus.
Hannah McCarthy:
Yes, the US, for example, has been sending military support directly into the country. Like Marshall said, a country that is part of NATO can still act independently of NATO so long as it is abiding by the charter set out by the United Nations.
Nick Capodice:
All right. So Article four is about all the NATO allies getting together around the big table to try to agree on how to respond to a security threat. So what happens when everyone agrees that one ally has been attacked and the whole alliance should act?
Hannah McCarthy:
This is Article five. Think of it like in The Lord of the Rings. Yeah, I'm going there again, Nick. When Pippin lights the when Pippin lights the fire beacons and Gondor and all those men on those mountaintops across middle earth rushed to light their fire beacons until the fires reached Rohan.
Nick Capodice:
Couldn't Gandalf have just let them all with his staff? Anyway, I'm not going to get there.
Hannah McCarthy:
You just.
Nick Capodice:
That's in the same vein as if the eagle could have carried the ring to Mount Doom.
Hannah McCarthy:
We've been over the eagle thing.
Nick Capodice:
What's Article five?
Rachel Rizzo:
This is the big one. This is why countries seek to join it. States that the parties, meaning the allies, agreed that an armed attack against one or more of them in Europe or North America is considered an attack against them all, and that if any sort of attack like this occurs, each ally will assist the party attacked individually and in concert with the other parties. Such actions that are deemed necessary. Now, this doesn't necessarily mean that allies are going to go to war for other allies. It doesn't explicitly state that it says that they will take actions that are deemed necessary. But by and large, this is understood as meaning they will defend an ally that is attacked. Now, the only time that Article five has ever been invoked in the alliance's 73 year history was on September 12, 2001. After the September 11th attacks.
Archival Audio:
The United States NATO allies stand ready to provide the assistance that may be required as a consequence of these acts of barbarism.
Hannah McCarthy:
In 2001, there were 19 members of NATO.
Rachel Rizzo:
So as I mentioned before, all of these decisions are made at consensus. Every ally has to agree. The day after the United States was attacked, you had all allies, all agree that this was an attack that was eligible under Article five.
Nick Capodice:
So once all the NATO's allies agreed that, yes, this was an attack on one of us and therefore an attack on all of us, what happened next?
Rachel Rizzo:
There were eight official actions that were taken by NATO in response to the 911 attacks. I think it's probably too in-depth to go into, but one of them was Operation Eagle Assist, which is where patrol aircrafts flew over the skies of the United States from October of 2001 to around May of 2002. And then there was Operation Active Endeavor, which was a naval operation in the Mediterranean, basically designed to prevent movement of terrorists or weapons of mass destruction. But again, each of the countries makes their own decision. NATO does not influence what a country decides to do. They can have those collective discussions which can help them form. It's like if they no one country is really focused on providing medical aid, maybe that's not the best thing for all 30 countries to be doing because these other countries are already covering it.
Hannah McCarthy:
Marla, for example, works for an organization that focuses on NATO's approach to civilian protection.
Marla Keenan:
When we started working there in Afghanistan in 2007, what we were seeing at the time was that there were a lot of civilians that were being harmed, either accidentally or incidentally, by the by the US and the NATO's mission. Right. So we went to them and we said, hey, this is really not going to play well for you in a counterinsurgency operation. So you kind of need to get a hand on what's going on. And from there, the discussions just kind of unfolded. You know, for them, I think in that mission, protection of civilians was very much about not harming civilians with your own operations.
Hannah McCarthy:
Marla said that NATO's policy for civilian protection is one example of how NATO's has evolved over time.
Marla Keenan:
I think now that we're focusing on Ukraine, I've been really fascinated to hear how many people, especially President Zelenskyy, has made some really incredible comments about how important the people are with regard to the property, right? So like the people of a country are what make up a country and therefore protecting those people is even more important in his I heard a quote from him the other day that said, If my people aren't here, then what good does it do if we have all of our land?
Nick Capodice:
I'm curious about how else NATO's has evolved since its founding.
Hannah McCarthy:
When we think about the leadership of NATO's, there's no one person in charge. The North Atlantic Council is the governing body that oversees it all. But again, there isn't any one type of government or one leader who is setting the policy agenda.
Rachel Rizzo:
Obviously, threat perceptions are different among all allies, so national interests differ. But when it comes to the defense of. A Euro-Atlantic area. It is every ally for every ally. But as as time goes on the not it's not just threat perceptions of European countries that start to differ. It's actual internal political systems that have started to differ. So we're seeing allies, for example, Turkey or Hungary, take actions and create systems within government and society that may not fall in the definition of the democratic values that NATO seeks to defend. Right. So in that sense, it gets a little bit tricky because, yes, it's a defensive military alliance. But then the question becomes, what are we defending? Are we defending every ally from an armed attack? Yes. But are we also defending attacks on democratic values? And how does that and how is that even defined? So if it's not something that all allies can agree on, what happens? Does the mutual defense clause become meaningless? Is it rendered less effective? And so I think NATO's going forward is starting to think a lot about how to still work effectively together with the reality that systems and societies are continually changing and evolving.
Hannah McCarthy:
And as far as what that means for us?
Marla Keenan:
I also think that Americans need to understand that national security depends on strength and partnerships of other countries as well. We may be the strongest military in the world, but we cannot go any of this alone.
Hannah McCarthy:
When we say that alliances against forces of destruction are real and that's probably a good thing, we also have to acknowledge that they are an absolute necessity, meaning that relationships and consensus and compromise are also a necessity.
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Hannah McCarthy: [00:00:00] Every time in a movie that I see groups put aside differences to just all commit to the same goal. It is truly heartwarming for me. Like it does something chemical in my brain.
Nick Capodice: [00:00:14] Like like what kind of scene?
Hannah McCarthy: [00:00:15] Like in Lord of the Rings. Why...don't you do it!
Nick Capodice: [00:00:21] I'm sorry. Everyone out there. I don't like Lord of the Rings. And maybe this is going to end my career. It's Civics one one. But I just don't like those movies.
Hannah McCarthy: [00:00:28] All of the good and decent creatures of the world banding together to fight a singular evil, including trees. It would mean the destruction. Yeah. Of life.
Nick Capodice: [00:00:39] You like that part when everybody comes together from all these different places to battle this big, evil force and then go back to their own lands to probably fight each other in another 50 years. Well, including ghosts. Including ghosts that come out of a cave.
Hannah McCarthy: [00:00:53] Yeah, I like it all. Because guess what? The epic gathering of armies from across lands is not just a fantasy. In fact, the United States is one of 30 countries that have all sworn to stand together in the face of an attack and an intergovernmental security alliance stretching from North America to Europe.
Nick Capodice: [00:01:18] You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: [00:01:21] I'm Hannah McCarthy. And today we are going to talk about one of the most powerful defensive alliances in the world.
Archival Audio: [00:01:28] The North Atlantic Treaty Organization.
Nick Capodice: [00:01:32] More powerful than ghosts in a cave.
Hannah McCarthy: [00:01:34] I'm not even convinced you've seen the.
Nick Capodice: [00:01:37] Kings in the hole in the cave. And they come and he's like, Please, Joe. Okay, fine. And they just kill everyone. You bow to no one.
Archival Audio: [00:01:47] We are moving into an era in which that physical forces cast a pall over our world. It kept the peace of Europe and the Atlantic through 12 dangerous years like these have always kept NATO's forces prepared for a possible attack. And tonight, the threat from Russian President Vladimir Putin may be the most tenuous moment for NATO's in decades.
Archival Audio: [00:02:09] An armed attack against one or more of the allies in Europe or in North America shall be considered an attack against them all.
Marla Keenan: [00:02:20] Yes. So NATO is a security alliance. It's the Transatlantic Security Alliance that's composed of 30 member countries, including the United States. My name is Marla Keenan. I'm an adjunct senior fellow at the Stimson Center, and I've been working with an on NATO issues since 2007. So my primary focus is on the protection of civilians and armed conflict.
Hannah McCarthy: [00:02:45] We're going to go back to a time when the United States was really entering the world stage in a different way as a different kind of power. And that would be the end of World War Two. 52 countries came together to create the United Nations to maintain peace and prevent another world war.
Archival Audio: [00:03:04] The untold destruction that has been wrought. Nor can we forget how close our whole civilization has come to utter ruin.
Hannah McCarthy: [00:03:17] The countries that joined the United Nations agreed to several key things.
Archival Audio: [00:03:22] This member of the United Nations is under solemn obligation to maintain international peace and security. Each is bound to settle international disputes by peaceful means, to refrain from the threat or use of force against the territory or independence of any country, and to support the United Nations in any action it takes to preserve the peace.
Marla Keenan: [00:03:48] Any country in the world can respond to a threat upon its people or its land. It's called the inherent right to self defense. But if there are other things happening, for example, it's quite helpful to have the United Nations who can get together and make a collective decision about what needs to happen and what type of operations there need to be. So for example, the UN will often mandate a peacekeeping mission in a country that's either requested or isn't capable of providing security for its own population.
Nick Capodice: [00:04:24] Basically, the U.N. says that you shouldn't use force unless it's to defend yourself. And if you need help doing that, the U.N. gives other countries the ability to help. So what I want to know is if we have the UN, why also have NATO's how are they different?
Marla Keenan: [00:04:41] NATO is a security organization, so it is focused specifically on securing the citizens and the space of Europe. Right. So a kind of different approach to global order versus like very protection, free and very security focused on a specific area of land and people.
Hannah McCarthy: [00:05:00] Even though 52 countries originally signed on to the UN Charter, there were still disputes. And in the years after World War Two there was one country in particular that was making everyone else kind of nervous.
Archival Audio: [00:05:14] Russia had swallowed up eight European countries without firing another shot other than those of the execution squads.
Hannah McCarthy: [00:05:22] Now, the United Nations is primarily a peacekeeping organization, as we've said. But as the Soviet Union continued to spread its power, some nations decided, you know what, maybe we need to escalate this a little bit. And the United States, which had an extremely powerful military and the advantage of being separated by the ocean, was well positioned to take the lead. President Truman had also made it U.S. policy to prevent the spread of Soviet power and a little thing called the Truman Doctrine.
Nick Capodice: [00:05:54] Right. This is the U.S. basically calling out the Soviet Union and saying if anyone else feels threatened by the Soviet Union, we, the United States are going to help.
Archival Audio: [00:06:04] I believe that it must be the policy of the United States to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressure.
Hannah McCarthy: [00:06:18] And in Europe especially, this threat of expansion was sometimes right at the border. So eventually the United States and 11 other countries got together and said, we're going to form an alliance that will help make us all better prepared to defend against an attack. The 12 countries were for anyone who's interested Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, the United Kingdom and the United States.
Marla Keenan: [00:06:45] NATO provided sort of that first bulwark protection against the Soviet Union and any security operations that they might run. So, for example, it gave us the ability to to have not the US be the front line, but for the European allies to be strengthened by the US's support and also for the European allies to help support the United States.
Rachel Rizzo: [00:07:10] The Washington treaty was signed in Washington, D.C. in 1949, and it's basically the founding document that the entire NATO alliance is built. Upon. So my name is Rachel Rizzo, and I am a senior fellow at the Atlantic Council's Europe Center, where I focus on the US European security relationship, NATO Germany and trans schism more broadly.
Hannah McCarthy: [00:07:35] Quick note here, you'll hear the word ally throughout this episode. When we say ally, we mean a country that is part of NATO. At the signing of the treaty in 1949, President Truman emphasized the geographical importance of NATO.
Archival Audio: [00:07:51] In this treaty, we seek to establish freedom from aggression and from the use of force in the North Atlantic community. This is the area which has been at the heart of the last two world conflicts.
Nick Capodice: [00:08:03] It's one thing to say we are all in alliance, but what does the treaty actually say?
Hannah McCarthy: [00:08:10] Okay, the treaty has 14 articles that lay out how the alliance will work.
Rachel Rizzo: [00:08:15] And they cover a whole array of topics. So, for example, Article two discusses how NATO's members will contribute toward the development of peaceful and friendly international relations by strengthening their free institutions, by promoting conditions of stability and well being, trying to eliminate conflict in their international economic policies and encouraging economic collaboration. Article three talks about how members will actually achieve the objectives of the Washington treaty and says that the members will maintain and develop their individual and collective capacity to resist armed attack. So basically, as we understand it today, spend enough on defense to maintain a credible military and contribute to the mutual defense of all alliance members, which now are 30. So and then it talks a little bit about how countries can both join and leave the alliance. So while the treaty isn't long, it is pretty comprehensive.
Nick Capodice: [00:09:17] So allies have to agree to spend a certain amount of money on their own military.
Hannah McCarthy: [00:09:21] Yeah, because it's not really fair to be part of an alliance if you're not actually contributing to that alliance. Right. Otherwise, you're just kind of a hanger on, like, you know, those stories of various species who live together because they get something from one another like that smaller fish that hangs out with sharks and like cleans their teeth. So it's like one of those examples of those wonderful symbiotic relationships of nature.
Nick Capodice: [00:09:46] Yeah. Like the CNN Army and the clownfish.
Hannah McCarthy: [00:09:48] Yeah, exactly. Basically, what I'm saying is that being a part of this alliance means that a country is contributing in some way to the goal of that alliance by building up its own security. And lately, there's been an increased focus on the amount of money allies are actually contributing.
Rachel Rizzo: [00:10:06] Part of Article three, you know, it says that the members will maintain and develop their collective capacity to resist armed attack, which means maintaining a credible military. This is why in the last few years, but actually for decades, we've talked about defense spending, how much European allies are spending on defense. So if you remember during the Trump administration, there was a lot of focus on how European members of the NATO alliance weren't meeting their defense spending goals. And those goals are to spend 2% of their GDP on defense by the year 2024. And for years, allies have been measuring their their movement towards that goal. And in the last few years, there has been an increased number of allies who are now credibly going towards 2%.
Nick Capodice: [00:11:07] Why is how much money a NATO's ally spends on defense such a big deal now when NATO's been around for decades?
Rachel Rizzo: [00:11:15] It wasn't because of the the harsh rhetoric of the past president. It was actually spurred by the Russian invasion of Crimea in 2014.
Hannah McCarthy: [00:11:28] In 2014, Russia invaded Ukraine and annexed the peninsula of Crimea.
Archival Audio: [00:11:34] The moment Russian troops smashed their way into Ukraine's Crimea air base backed by armored vehicles, gunfire and stun grenades. Special Forces supported by pro-Russian militia.
Rachel Rizzo: [00:11:47] Which is really when we saw multiple allies start turning around, years of defense spending decreases and actually start paying attention to how they were spending and what they were spending it on.
Nick Capodice: [00:11:58] Can I just clarify something? Yeah. Does NATO have its own military? Like, are there NATO, tanks and NATO planes lying around?
Hannah McCarthy: [00:12:06] No, no, no. So Rachel says that this is a common misconception.
Rachel Rizzo: [00:12:09] NATO doesn't have troops under its own command. I think that's really important to remember. There's not a head, you know, NATO, General, that. Has a whole army at their disposal, right? This is because it's a collective alliance. Everyone contributes basically their military, their assets as they see fit. And NATO also doesn't really own that much military equipment itself. It owns some airborne warning and control systems, aircraft and patrol aircraft. But it's not like there are a bunch of NATO's planes sitting in Brussels ready to be deployed.
Nick Capodice: [00:12:50] Okay. So you've got 30 different countries with different sized militaries, different governments, different interests, but they're all in agreement about this one thing. They are in agreement about defending the collective group from an attack. So if there is no central military, how do they do that?
Rachel Rizzo: [00:13:10] I think the most important thing is this idea of consensus and the fact that the reason that NATO is strong is because it's decisions are made. With every single ally at the table. It forces compromise. It forces conversations. Allies who might come to the table with different ideas or security concerns have to find common denominator with their fellow NATO allies, and NATO isn't led by any one country. I think that there's this misconception that just because the United States is militarily, economically the most powerful ally in NATO, that it somehow has a greater say in NATO's decision making than other countries. And while it does hold great sway, its role isn't any more important, at least in my mind, than the 29 other members because of the importance of consensus building.
Hannah McCarthy: [00:14:20] This is Marla Keenan again.
Marla Keenan: [00:14:22] Yeah. So it's less about NATO doing for the specific country as it is the the collective contribution that NATO allies make to the alliance then creates more security for all of the allies. Right. So, you know, it's difficult to think about it in terms of like, well, the US contributes X, Y and Z, and that means that they deserve A, B and C. It doesn't really work that way. It's contributions to the alliance and not to specific countries.
Hannah McCarthy: [00:14:56] NATO headquarters themselves are in Brussels, Belgium, and each ally of NATO has an ambassador, a representative and supporting staff. More than 4000 people work at NATO headquarters and there are NATO outposts around the world.
Marla Keenan: [00:15:12] There's also an international staff that is sort of the if you think of it as sort of the secretariat of all of the allies. So there is a secretary general. The current secretary general is a gentleman from Norway named Jens Stoltenberg, and he basically serves a four year term and he's the chief administrator and the international envoy for NATO, but he's representing NATO, the large umbrella and not his country. So his country, Norway, will also have a permanent mission that does the work on behalf of the country.
Hannah McCarthy: [00:15:50] NATO has something called the North Atlantic Council, which includes the Secretary General and the permanent representatives of each country. The North Atlantic Council is the decision making body of NATO.
Nick Capodice: [00:16:03] So let's say that one country is under threat. How do we get from a country that needs help to an actual response from NATO's allies?
Hannah McCarthy: [00:16:11] That gets us into how the North Atlantic Council works and the two biggest parts of the Washington treaty that we haven't talked about yet. Articles four and five. These two articles lay out how NATO responds to a threat, and we'll get into that right after this break.
Nick Capodice: [00:16:27] But first, if there are any listeners out there who just can't get enough civics, you should know that we have a fun biweekly newsletter. It's called Extra Credit. It's free, it's full of fun stuff. And you can sign up at our website Civics on one podcast dot org.
Hannah McCarthy: [00:16:43] So, Nick, I want to talk about a movie you love. There's this scene in Dr. Strangelove or How I Learned to Stop Worrying and Love the Bomb. Stanley Kubrick's satirical film about the Cold War, where there are a bunch of politicians gathered in a giant underground room known as the War Room that has a huge round table.
Archival Audio: [00:17:02] Gentlemen, you can fight in here. This is the war room.
Hannah McCarthy: [00:17:04] Now, NATO's headquarters might not be in an underground bunker, but the place where allies meet looks a lot like the war room of Dr. Strangelove. I want you to picture a giant round table so big that each person has a microphone at their seat so that everyone at the table can hear them.
Nick Capodice: [00:17:22] Like a massive, extremely tense Thanksgiving dinner.
Hannah McCarthy: [00:17:26] Yeah, exactly. Because the way that NATO actually works on a logistical level depends on every single ally having a seat at the table, literally and figuratively. We've talked about how NATO was formed. Now let's get into how it looks in action. We'll start with Article four of the Washington Treaty.
Rachel Rizzo: [00:17:46] Article four is based on consultations.
Hannah McCarthy: [00:17:48] This is Rachel Rizzo.
Rachel Rizzo: [00:17:49] It says that NATO's members can consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the parties are threatened. These aren't invoked very often. In fact, every decision that NATO makes has to be made at the level of the North Atlantic Council, which is the highest decision making body within the alliance. If one ally decides to say no, then the decision isn't made.
Nick Capodice: [00:18:20] Frankly, I'm curious about how often that consensus has been reached, but I'm also wondering what happens if everyone can't agree or if a situation needs to be addressed quickly and it's taking too long for everyone to get on the same page.
Hannah McCarthy: [00:18:34] Okay, let's start there. Marla says that if all 30 allies don't reach a consensus or they can't reach a consensus quickly enough, some of the allies can still work together. One example she talks about was in Libya in 2011 when civil war broke out and the Libyan government began attacking civilians.
Archival Audio: [00:18:56] Gaddafi remains defiant. He gathered supporters, including women and children, around his compound and other key targets, essentially forming a human shield.
Hannah McCarthy: [00:19:07] The U.N. called for a cease fire and gave foreign governments permission to enforce that cease fire in order to protect civilians.
Marla Keenan: [00:19:16] And so that kind of gave the international blessing for there to be an operation there. The interesting part was that NATO could not come to an agreement quick enough to deploy. And so what happened is a few of the allies, including the US, decided to do sort of a smaller coalition of the willing until NATO's could then get to its decision making mechanism where it then did engage in that conflict. So there are different ways to kind of work around. But in the end, if NATO's is going to commit itself, it has to be all 30 countries. Now, that doesn't mean that all 30 countries have to be in the actual operations. It just means that that decision has to be made together.
Nick Capodice: [00:20:00] How often does that happen?
Hannah McCarthy: [00:20:02] Article four has been invoked seven times in NATO's history.
Rachel Rizzo: [00:20:05] So the last time we saw an article for consultation was actually last month in light of the Russian invasion of Ukraine, when the Baltic states decided to call for Article four consultations at the North Atlantic Council.
Hannah McCarthy: [00:20:21] We're taping this episode in April 2022, in the second month of Russia's invasion of Ukraine.
Archival Audio: [00:20:26] Vladimir Putin finishing this speech, essentially declaring war on Ukraine. We heard the sound of explosion.
Hannah McCarthy: [00:20:35] As Rachel said earlier, NATO considers Russia a big threat and Russia similarly considers NATO a big threat.
Marla Keenan: [00:20:42] So I'm going to read Article four for you. The parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the parties is threatened. So here, when they're talking about parties, they're talking about allies. And so some of the Baltic states got together and said, hey, we think we need to talk about this because this is obviously very close. Poland, for example, is an ally. And when we're talking about attacks happening in Lviv, that is literally right over the border from Poland. So it was incredibly important that they got together and they pulled this meeting together very quickly. And it kind of started the discussion about the crisis in Ukraine. People talk, especially in the last month or so, about enhanced forward presence. And basically after Russia invaded Crimea illegally in 2014, NATO's allies realized that they really needed to step up deterrence in the eastern part of the alliance. So Poland, Latvia. Estonia and Lithuania all are home to multinational battalions that are on a rotational, persistent, rotational basis that are meant as a tripwire deterrence measure to help protect the NATO's eastern flank. And in light of Russia's invasion of Ukraine over the last month, they are increasing not only their presence in these four multinational battalions, but also allied presence in places like Romania and Bulgaria and Slovakia to to reassure allies that are in the southeast region of the alliance.
Nick Capodice: [00:22:20] But Ukraine is not an ally of NATO, and that's something that's come up a lot lately in the news. Ukraine has wanted to become an ally of NATO, but Russia doesn't really want that to happen.
Hannah McCarthy: [00:22:30] Yeah, so we've said that an ally is a country that is part of NATO, right? There are also partners that aren't part of the NATO alliance, but share interests or in the case of Ukraine, really want to be part of the alliance.
Nick Capodice: [00:22:47] All right. But what is the specific difference between a partner and an ally?
Rachel Rizzo: [00:22:51] The big difference here is that NATO allies are bound together by the Washington treaty. They are obligated by treaty to defend one another. A partner isn't a partner doesn't have that same security. But there are significant partners that the the alliance has around the world.
Hannah McCarthy: [00:23:15] So partners of NATO can be individual countries or even other multi-country alliances.
Rachel Rizzo: [00:23:22] There's the Mediterranean dialog that has partners around the Mediterranean. There's the Istanbul Cooperation Initiative. There's also the Enhanced Opportunity Partnership Program that has six members of it, including Sweden and Finland and Ukraine.
Hannah McCarthy: [00:23:39] And countries like Sweden and Finland have shown interest in joining NATO. In fact, by the time you hear this episode, the makeup of NATO may be different.
Nick Capodice: [00:23:46] And Rachel also mentioned Ukraine, which makes me think about the fact that Russia has been engaging in the kind of warfare that spurred the creation of NATO in the first place spreading into nearby European territory by force.
Hannah McCarthy: [00:23:59] But because Ukraine is not an ally, to partner NATO as an alliance is not obliged to directly defend Ukraine. As of right now, NATO has been focused on keeping the invasion contained in Ukraine.
Nick Capodice: [00:24:13] But NATO countries can still provide assistance to Ukraine without having to wait for NATO's consensus.
Hannah McCarthy: [00:24:18] Yes, the US, for example, has been sending military support directly into the country. Like Marshall said, a country that is part of NATO can still act independently of NATO so long as it is abiding by the charter set out by the United Nations.
Nick Capodice: [00:24:34] All right. So Article four is about all the NATO allies getting together around the big table to try to agree on how to respond to a security threat. So what happens when everyone agrees that one ally has been attacked and the whole alliance should act?
Hannah McCarthy: [00:24:50] This is Article five. Think of it like in The Lord of the Rings. Yeah, I'm going there again, Nick. When Pippin lights the when Pippin lights the fire beacons and Gondor and all those men on those mountaintops across middle earth rushed to light their fire beacons until the fires reached Rohan.
Nick Capodice: [00:25:10] Couldn't Gandalf have just let them all with his staff? Anyway, I'm not going to get there.
Hannah McCarthy: [00:25:14] You just.
Nick Capodice: [00:25:14] That's in the same vein as if the eagle could have carried the ring to Mount Doom.
Hannah McCarthy: [00:25:17] We've been over the eagle thing.
Nick Capodice: [00:25:20] What's Article five?
Rachel Rizzo: [00:25:22] This is the big one. This is why countries seek to join it. States that the parties, meaning the allies, agreed that an armed attack against one or more of them in Europe or North America is considered an attack against them all, and that if any sort of attack like this occurs, each ally will assist the party attacked individually and in concert with the other parties. Such actions that are deemed necessary. Now, this doesn't necessarily mean that allies are going to go to war for other allies. It doesn't explicitly state that it says that they will take actions that are deemed necessary. But by and large, this is understood as meaning they will defend an ally that is attacked. Now, the only time that Article five has ever been invoked in the alliance's 73 year history was on September 12, 2001. After the September 11th attacks.
Archival Audio: [00:26:27] The United States NATO allies stand ready to provide the assistance that may be required as a consequence of these acts of barbarism.
Hannah McCarthy: [00:26:37] In 2001, there were 19 members of NATO.
Rachel Rizzo: [00:26:40] So as I mentioned before, all of these decisions are made at consensus. Every ally has to agree. The day after the United States was attacked, you had all allies, all agree that this was an attack that was eligible under Article five.
Nick Capodice: [00:26:56] So once all the NATO's allies agreed that, yes, this was an attack on one of us and therefore an attack on all of us, what happened next?
Rachel Rizzo: [00:27:05] There were eight official actions that were taken by NATO in response to the 911 attacks. I think it's probably too in-depth to go into, but one of them was Operation Eagle Assist, which is where patrol aircrafts flew over the skies of the United States from October of 2001 to around May of 2002. And then there was Operation Active Endeavor, which was a naval operation in the Mediterranean, basically designed to prevent movement of terrorists or weapons of mass destruction. But again, each of the countries makes their own decision. NATO does not influence what a country decides to do. They can have those collective discussions which can help them form. It's like if they no one country is really focused on providing medical aid, maybe that's not the best thing for all 30 countries to be doing because these other countries are already covering it.
Hannah McCarthy: [00:27:56] Marla, for example, works for an organization that focuses on NATO's approach to civilian protection.
Marla Keenan: [00:28:02] When we started working there in Afghanistan in 2007, what we were seeing at the time was that there were a lot of civilians that were being harmed, either accidentally or incidentally, by the by the US and the NATO's mission. Right. So we went to them and we said, hey, this is really not going to play well for you in a counterinsurgency operation. So you kind of need to get a hand on what's going on. And from there, the discussions just kind of unfolded. You know, for them, I think in that mission, protection of civilians was very much about not harming civilians with your own operations.
Hannah McCarthy: [00:28:40] Marla said that NATO's policy for civilian protection is one example of how NATO's has evolved over time.
Marla Keenan: [00:28:47] I think now that we're focusing on Ukraine, I've been really fascinated to hear how many people, especially President Zelenskyy, has made some really incredible comments about how important the people are with regard to the property, right? So like the people of a country are what make up a country and therefore protecting those people is even more important in his I heard a quote from him the other day that said, If my people aren't here, then what good does it do if we have all of our land?
Nick Capodice: [00:29:16] I'm curious about how else NATO's has evolved since its founding.
Hannah McCarthy: [00:29:20] When we think about the leadership of NATO's, there's no one person in charge. The North Atlantic Council is the governing body that oversees it all. But again, there isn't any one type of government or one leader who is setting the policy agenda.
Rachel Rizzo: [00:29:34] Obviously, threat perceptions are different among all allies, so national interests differ. But when it comes to the defense of. A Euro-Atlantic area. It is every ally for every ally. But as as time goes on the not it's not just threat perceptions of European countries that start to differ. It's actual internal political systems that have started to differ. So we're seeing allies, for example, Turkey or Hungary, take actions and create systems within government and society that may not fall in the definition of the democratic values that NATO seeks to defend. Right. So in that sense, it gets a little bit tricky because, yes, it's a defensive military alliance. But then the question becomes, what are we defending? Are we defending every ally from an armed attack? Yes. But are we also defending attacks on democratic values? And how does that and how is that even defined? So if it's not something that all allies can agree on, what happens? Does the mutual defense clause become meaningless? Is it rendered less effective? And so I think NATO's going forward is starting to think a lot about how to still work effectively together with the reality that systems and societies are continually changing and evolving.
Hannah McCarthy: [00:31:15] And as far as what that means for us?
Marla Keenan: [00:31:17] I also think that Americans need to understand that national security depends on strength and partnerships of other countries as well. We may be the strongest military in the world, but we cannot go any of this alone.
Hannah McCarthy: [00:31:35] When we say that alliances against forces of destruction are real and that's probably a good thing, we also have to acknowledge that they are an absolute necessity, meaning that relationships and consensus and compromise are also a necessity.
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Today we explain one of the most controversial Supreme Court decisions in modern history; the case that defined campaign donations as speech and therefore protected under the First Amendment, regardless of who made them. This episode explains the history of the case, PACs, Super PACs, the ruling, the effect of the decision on our campaign system, as well as some common misconceptions.
Our guides through the case are Professor Jeff Bone from Saint Joseph's University, Maggie Severns from Grid, and Professor Hye Young You from New York University.
Archival: There aren't a lot of functioning democracies around the world that work this way where you can basically have millionaires and billionaires bankrolling whoever they want, however they want, in some cases undisclosed.
Archival: So we're here today once again to say enough is enough. It's time for the people to take back their elections. It's time to overturn Citizens United.
Archival: You [00:00:30] know, I had to raise a lot of money for my campaign. So I there's nobody who operates in politics that has perfectly clean hands on this issue.
Nick Capodice: I'm Nick Capodice.
I'm Hannah McCarthy.
Nick Capodice: And this is Civics 101, the podcast refresher course on the basics of how our democracy works. And today we are going to break down the Supreme Court decision that Jimmy Carter called stupid, that Barack Obama openly criticized at a State of the Union address, that former [00:01:00] Supreme Court Justice Ruth Bader Ginsburg said in an interview would be "the impossible dream" to overrule... Citizens United versus FEC, 2010. In this episode, you are going to learn about the case and a lot of initialisms, the FEC, BCRA known as bickra, PACs and Super PACs. And you're also going to learn about corporations, dark money and, finally, how this decision has affected political campaigns in the [00:01:30] last 12 years and all in about 20 minutes. 30 minutes.
Hannah McCarthy: Can we just get the name out of the way first? I know the FEC stands for the Federal Election Commission. But who or what is Citizens United?
Nick Capodice: Citizens United is a nonprofit organization that has for a long time made ads and documentaries that support conservative politicians. The head of Citizens United, David Bossie, was [00:02:00] Donald Trump's deputy campaign manager.
Archival: It the people on the left are upset is because he's keeping his promises. He says what he means and he means what he says.
Nick Capodice: They're funded by the Koch brothers and a lot of other sources. They are a PAC, a political action committee, which I'm going to get into in just a little bit. Do you remember we got to interview Michael Dukakis, the Democratic nominee for president in 1988?
Hannah McCarthy: Do I ever.
Archival: And it's got to be 50 states, 200,000 precincts. I don't want to hear about reds, blues and purples. And it's all just nonsense, you know? I mean, god.
Nick Capodice: Citizens [00:02:30] United were the ones who made one of the most infamous political commercials in history, the racist Willie Horton attack ad in 1988.
Archival: Dukakis not only opposes the death penalty, he allowed first degree murderers to have weekend passes from prison.
Hannah McCarthy: oh, right. The ad that helped George H.W. Bush win the election.
Nick Capodice: And in 2008, they released a film called Hillary: the Movie, which was purely a hit piece on former first lady and presidential [00:03:00] candidate Hillary Clinton.
Archival: Hillary is really the closest thing we have in America to a European socialist.
Archival: It's that oh, isn't that amazing? Oh, it's a woman. She can walk and talk.
Nick Capodice: This movie is at the center of one of the most famous or infamous decisions in our lifetime. Hanna A decision about who can give to political campaigns and how much. And we begin our tale with one of the most expensive political campaigns in history.
Jeff Bone: So [00:03:30] if you want to go way back, historically, there were no limits in the 1800s.
Nick Capodice: That's Jeff Bone. He is an assistant professor at Saint Joseph's University in Philadelphia.
Hannah McCarthy: No limits at all on campaign spending in the 1800s.
Nick Capodice: None at all. And this wasn't really talked about as nobody was really spending massive amounts of money on campaigns.
Jeff Bone: But this became an issue towards the end of the 19th century, with the rise of donors like wealthy corporations and [00:04:00] other individuals who were starting to dominate political campaigns.
Nick Capodice: But that big campaign was 1896 when William McKinley was running for president.
Archival: I believe this is a recent event that imposed upon the patriotic people of this country.
Nick Capodice: $16.5 million were raised for his political campaign. In fact, his chief fundraiser, Mark Hanna, said, quote, There are two things that are important in politics. The first [00:04:30] is money. And I can't remember what the second one is.
Hannah McCarthy: I know inflation calculators aren't 100% accurate, but is there a rough estimate of what that comes out to today?
Nick Capodice: Yeah, roughly about half a billion dollars. More than Mitt Romney raised in 2012. And then more and more campaign donations from corporations were becoming quite concerning to the public and the press.
Hannah McCarthy: And just to be clear, what do we mean when we say corporation is.
Nick Capodice: Such [00:05:00] a such a tricky word to define. Simply? A corporation is a legal business entity that's separate from its owners.
Jeff Bone: Corporations have existed far before the United States, and the concept was borrowed from England and from Europe, generally speaking, where corporations were given charters typically by a monarch, the responsibility of a corporation, [00:05:30] which, by the way, were huge. We're talking about corporations that existed to engage in trade with the East occasionally to be colonial powers in North America. And they did serve a purpose. I don't know if we would call it a public welfare purpose today, because it was really serving the interests of the governments back home.
Nick Capodice: Today, just about every large business is a corporation. You and I could make one right now. We could just be the two shareholders who invest in it. We make money [00:06:00] on stocks and dividends, and you and I are not personally liable for any company debt. Corporations can be one person too. You can just have one shareholder.
Jeff Bone: And just to be more clear on what that practically means, corporations can engage in contracts, they can have bank accounts, they can do things that any other individual person can do. But this is a bit of a fallacy because of course, corporations aren't people. They can't when it comes to politics, run for office. They [00:06:30] don't have political beliefs in the same way you. Or I do and other living people do. However, the law does accord them the privilege without much responsibility behind it to have these liberties.
Nick Capodice: The first legislation about corporations and their relationship to political campaigns begins with that trust busting, safari going bull moose.
Hannah McCarthy: Or maybe just Teddy Roosevelt. You could go with that.
Archival: I am leaving because somebody must [00:07:00] leave, or else the fight would not be made unless.
Jeff Bone: There was a political scandal of the time that there was a large donations from corporations towards Republican candidates, including including at the top of the ticket, Roosevelt himself. Now, this is in the era, too, of trust busting. The Sherman Act was brought in a few years before that to cut down on corporate power, generally speaking, and its dominance and ability to create monopolies [00:07:30] and and and be beyond the control of of the government to regulate. So there was swift action.
Nick Capodice: Teddy Roosevelt signed into law the first campaign finance law in US history, the Tillman Act of 1907. This act prevented corporations from giving money to candidates directly, which Roosevelt had indeed benefited from himself in the past. So this act washed his hands of the taint of corruption.
Jeff Bone: Which remedied the political scandal that had media entities [00:08:00] like The New York Times making statements that this is the problem. This is leading to potential corruption by allowing corporations to contribute whatever they want and to decide who's going to win the outcome of these elections.
Hannah McCarthy: Is the Tillman Act is still in effect.
Nick Capodice: In a sense it is. Corporations are still not allowed to directly give to campaigns from their coffers.
Hannah McCarthy: Though I have a feeling there's a workaround.
Nick Capodice: There is a workaround and we're going to get there. So that's how things stood over the years. [00:08:30] A bunch of other acts came along that tweaked campaign funding laws, but the problem was there wasn't really anybody minding the store who should be in charge of making sure nobody breaks the law when it comes to campaign financing. And there is a bit of an irony in who gets the ball rolling.
Hannah McCarthy: I know that campaign song.
Nick Capodice: That's Nixon now. Richard Milhous Nixon signed the [00:09:00] Federal Election Campaign Act of 1972. One of the provisions of which required campaigns and political committees to report the names, addresses and occupations of donors of more than $200 to campaigns. I mean, it is kind of funny, isn't it?
Hannah McCarthy: It is kind of funny. And by the way, everyone, the reason why Nick and I find this kind of funny is that the 1970 is that 1972 is also the year of the Watergate break in and the beginning of the investigation, which uncovered that Nixon's [00:09:30] reelection campaign involved money laundering and illegal slush funds, all of which resulted in his resignation.
Archival: And all the decisions I have made in my public life. I have always tried to do what was best for the nation.
Nick Capodice: Nevertheless, in 1974, partially in response to Nixon's shady dealings, the Federal Election Campaign Act was amended to create a new regulatory agency, the FEC, [00:10:00] which, as you said, Hannah stands for Federal Election Commission. And what do they do? They enforce campaign finance laws, one of which is a bit of a workaround that wall donations are limited to candidates. Donors could donate unlimited money to political parties instead if and only if the party used that money for what were called, quote, party building activities. This is what is now referred to as soft money.
Hannah McCarthy: Party building [00:10:30] activities. Is that like helping people register to vote?
Nick Capodice: Yeah. And making commercials that aren't about specific candidates, but are about issues, you know, like the people need to know that crime is an issue and candidate X is weak on crime. It doesn't say don't vote for candidate X or vote for candidate Y, but it's pretty darn close.
Hannah McCarthy: I feel like there's an awful lot of wiggle room in there
Nick Capodice: A ton. So much wiggle room that Senators John McCain and Russ Feingold reached across the aisle to create a new act. [00:11:00] And it was so important that a Democrat and a Republican did this together. They put it in the name BCRA or "bickra", the Bipartisan Campaign Reform Act. It's also called the McCain-Feingold Act. This act said that corporations cannot make a political ad that names a candidate 30 days before a primary or a caucus or 60 days before a general election.
Hannah McCarthy: And this is where the creation of Hillary, the movie comes in right
Nick Capodice: So close, Hillary: The movie was created in direct response to [00:11:30] another movie.
Archival: Members of Congress. This is Michael Moore. I would like to read you the USA Patriot Act!
Nick Capodice: Michael Moore's documentary about George W Bush's response to September 11th was released in 2004, a scant few months before the election between George Bush and John Kerry. Michael Moore, by the way, has made several movies about politically charged topics. And [00:12:00] someone filed a complaint to the FEC saying, hey, this movie violates because it was funded by corporate entities. It names a candidate. George W Bush ads for this movie should not be aired 60 days before the election. And you know who made that complaint?
Hannah McCarthy: Who?
Nick Capodice: A certain little nonprofit called Citizens United.
Hannah McCarthy: The same corporation that made their own political ads. And now they're mad that someone else is doing it.
Nick Capodice: Yeah. The FEC dismissed [00:12:30] the complaint, though, and Citizens United went on to make their own movie in response. Four years later, Hillary the movie again, a 90 minute attack on Hillary Clinton. It came out just before the primary between her and Barack Obama. The FEC said that ads for this movie could not air before the primary. Citizens United sued and it moved up the court system to the very top. And what happened next resulted in one of the most influential Supreme Court decisions in US history. [00:13:00] And that's coming up right after the break here on Civics 101.
Hannah McCarthy: But first, if you want a primer on more Supreme Court decisions, along with a breakdown of every branch of government, our election system, our foundational documents and a history of our main parties. Nick and I took what we learned over many years of getting to know our government and systems and put it into a book. It's called A User's Guide to Democracy How America Works and You Can Get It at Your Bookseller of Choice.
Nick Capodice: And by the way, the cartoons in our book were drawn by the brilliant [00:13:30] Tom Toro, who has just illustrated a children's book called I'm Terrified Of Bathtime. You should check that out while you're at it.
Hannah McCarthy: All right, we're back. Citizens United versus FEC is being argued in the highest court of the land. So, Nick, what is the question they're arguing?
Nick Capodice: Well, at first it's what we call a very narrow question. It's very specific to one moment in time, can Citizens United distribute and advertise Hillary the movie on on demand [00:14:00] cable just before the primary? But as so often is the case, narrow questions can become big, sweeping rulings.
Archival: We'll hear an argument today in case zero eight 205 Citizens United versus the Federal Election Commission. Mr. Olson.
Archival: Mr. Chief Justice and may have pleased the Court.
Nick Capodice: There's a famous moment in the argument where the person representing the FEC, Deputy Solicitor General Malcolm L Stewart, is asked by the justices, Well, [00:14:30] what about a book? We're talking about a movie here, but what about a book.
Archival: That's pretty incredible? You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned. I'm not saying it could be banned. I'm saying that Congress could prohibit the use...
Nick Capodice: Can the government ban a book critical of a candidate if it comes out before an election and the more conservative justices latched on to that and did not let go? They were very anti [00:15:00] banning books. The court meets to discuss how they're going to vote. And it seems like it's five four in favor of Citizens United. Chief Justice John Roberts was poised to write the opinion and Justice David Souter the dissent. But New Yorker reporter Jeffrey Toobin revealed that Souter's dissent was not your run of the mill dissent. It was very critical of Chief Justice Roberts and that it, quote, aired the court's dirty laundry. So Roberts said the case would be reheard in the next session [00:15:30] and Justice Kennedy would write the opinion. And Justice Souter retired.
Hannah McCarthy: Wow. Will we ever know what was in Justice Souter's dissent?
Nick Capodice: We will if you live that long, Hannah. His papers are set to be released in 2060. So in the next session, the decision was announced. Justice Anthony Kennedy wrote and read the opinion. And in a rare occurrence, Justice John Paul Stevens read his dissent, which was longer than the opinion, aloud from the bench. [00:16:00]
Hannah McCarthy: It never happens, right.
Nick Capodice: Sometimes.
Archival: Well, American democracy is still imperfect. Few outside the majority of this court would have thought its flaws included a shortage of corporate money in politics.
Hannah McCarthy: Okay, so the thing that everyone says about Citizens United, the sort of pop culture phrase that we all know about it, is that Citizens United decided that corporations are people. Yeah. Did it say that? Is that in there? [00:16:30]
Nick Capodice: No, it did not. Interestingly, that is not in Justice Kennedy's opinion. The decision says political speech rights do not depend on the identity of the speaker. That speaker can be a person or a group of people.
Hannah McCarthy: Okay. So campaign donations are considered speech. Speech is protected by the First Amendment. Corporations also have those protections. So does that mean that corporations can now give to campaigns?
Nick Capodice: No. And this is a very common [00:17:00] misconception. Corporations, even after the ruling, still could not give directly to candidates, but they could give indirectly through what are called PACs. And now we need to get some definitions out of the way.
Maggie Severns: Yeah. So all these different groups, PACs, super PACs, dark money groups, they're all just different ways of setting up a group that's going to spend money on an election.
Nick Capodice: This is political reporter Maggie Severns. She covers policy for Grid. [00:17:30]
Maggie Severns: A PAC is a political action committee. It is kind of a bucket where money goes in and money goes out. Now, PACs have been around for quite a while and PACs have pretty strict limitations on what they can take in and how they spend. So a PAC can give money directly to a candidate, but they can't give that much money. The most kind of traditional PACs might be PACs that are kind of associated with a company or a political group, and they're not part of that group. But everyone [00:18:00] who is involved in technology might all give $5,000 to the technology PAC, and then the technology PAC gives $5,000 each to candidates that are doing what people in the technology sector want. And for a long time, that was PAC spending. That's all it was, is, you know, you kind of take in these donations from a lot of people that believed in one cause and then you would give those donations to a campaign.
Hannah McCarthy: All right. $5,000 is the limit for campaign contributions from a single source. A [00:18:30] bunch of people give that amount or less to a PAC they care about. And the PAC is in charge of allocating that money.
Nick Capodice: Right. And the ruling in Citizens United did not change that. Your PAC cannot give more than $5,000 directly to each candidate. But then we get to super PACs.
Maggie Severns: Now, a super PAC was created after Citizens United, and they can take in unlimited amounts of money for anyone. So they could take that $3 million check, [00:19:00] whereas a PAC can only take in the low thousands of dollars depending on who they're getting their money from. So a super PAC is really what enabled that big money spending because then a super PAC can go out and buy an ad and drop $2 million on an ad. You have all kinds of super PACs. Some of them just support one person. Some of them support, you know, all Republican candidates or all Senate races. So Citizens United really opened the door for a super PAC to exist because there was no unlimited political [00:19:30] spending before Citizens United.
Hannah McCarthy: Now, just to make sure I have it, super PACs don't give money to candidates, but they spend money to support candidates. A regular old PAC can give money to a candidate, but it's limited. Individuals and corporations can spend unlimited money to support a candidate, but they can't give it directly to them.
Nick Capodice: Right. And there's this hard rule about that, referring to coordination. [00:20:00] Super PACs may not under any circumstances have any sort of coordination with the campaign. They can't tell them what to do. If I'm running for office, I can't call the super PAC that's like spending millions of dollars to get me elected and say, Hey, could you run an ad where I'm in a pickup truck and I'm talking to folks at a diner and I'm looking real concerned, and then my opponent is drinking champagne at a fancy restaurant. Can you do that for me? Not allowed.
Maggie Severns: Talking about people trying to get away with one thing [00:20:30] or another. You can look at coordination as being a really interesting example of that. So there's this thing called redboxing or yellowboxing where when a committee... Let's say that I am the D triple C and I'm in charge of electing Democrats to Congress. And I think to myself, man, I really could use a ad, a super PAC, to run a bunch of ads about how this candidate's opponent is really bad on the economy. But I can't talk to the super PAC, right, because there's no coordination [00:21:00] between a candidate or a committee and the super PAC. They're supposed to be totally independent. What folks started to do all these different, you know, and this goes for both sides of the aisle. They were all kind of experimenting, as you would actually on your website, put a little yellow or red box. And it looks very like Web 2.0. It looks very kind of dorky. And it'll say something that sounds kind of cheesy and coated saying like, people in Missouri need to know this. You click on the box and it'll take you to a page that they've developed with all the language [00:21:30] that they would like in the ad.
Hannah McCarthy: I'm not telling you what to do with the gun, but I'm going to leave it right here on the table for you.
Nick Capodice: I know Maggie sent me a link to an archived website. Thank you Internet Archive, with a box just like that. The box said Ohio needs to know. And I clicked on it and I saw a bunch of messaging and a link to archival footage from the campaign trail.
Hannah McCarthy: Footage that might just be perfect to put in an ad.
Nick Capodice: hypothetically, of course, that was the funny thing. It was like, here are the arguments [00:22:00] we feel and here's just a ton of footage for B-roll. It's just... It's just generic candidate on the campaign trail. Do what you want with it and it's not just redboxing. There are Twitter accounts that come out of nowhere with suggestions for super PACs. Books full of opposition research gets sent to offices. There are ways around coordination.
Hannah McCarthy: Now, I want to get back to something you said about the decision. And it was confusing for me because I did think, [00:22:30] like so many others, that this case was about corporations being allowed to give huge sums of money to candidates through super PACs.
Nick Capodice: Yeah, this caught me off guard, too.
Hye Young You: Every students have perception that Citizens United fundamentally change American politics and campaign finance system.
Nick Capodice: This is Hye Young You, a professor of political science at New York University. Hye Young said that this is her number one misconception that her students have about the case.
Hye Young You: But when we look at details, yes, [00:23:00] there are parts that Citizens United really transformed campaign finance in the US. But at the same time, there are sections that Citizens United didn't touch at all. For example, the direct campaign contribution made to the candidates. That has not changed at all by the Citizens United. So but, you know, students have this perception. This is, you know, the boom, you know, everything changed after Citizens United. And also but because of the political rhetoric, a lot [00:23:30] of students assume that corporations and big banks. Right. The big corporations, they spend tons of money to sponsor superPACs after Citizens United, which is not true.
Hannah McCarthy: But why? Like, if I were the head of a company and I knew a politician was going to pass legislation that helped my industry, wouldn't I do whatever I could to get them elected?
Nick Capodice: Aha. But if you're a big company that's in the public eye, like Google, Apple, AT&T, McDonald's, you have shareholders, [00:24:00] you have a board to answer to. You have the public and the press watching your every move and tweeting about it. All of those entities are going to find out who you gave your money to. And for example, Hye Young referenced the January 6th insurrection.
Hye Young You: After it, You know, some of the consumers, the activists or some of the people on Twitter and social media, they actually revealed, you know, these are the corporations who donated to the politician who endorsed January six [00:24:30] riot. And what happened after that? A lot of corporations, they withdrew you know, they withdrew their donation from those politicians. And they are you know, they don't make a donation in the next election cycles. Right. Companies, you know, even though they have a lot of power and wealth still know you need to cater to consumer preferences. You need to cater to shareholder preferences. So there are some constraints that corporations are face. And that's why even though a lot of people, including [00:25:00] President Obama, Senator Warren, you know, really worry about the explosion of money. Yes, we had an explosion of money, but not by the corporations, but mostly by wealthy individuals who are really politically active.
Nick Capodice: And I do want to add one wrinkle to this. Jeff Bone sent me a report about a way that corporations have begun to start to increase spending on campaigns that absolves them of all public scrutiny. Briefly, there are large nonprofits called 527s, the [00:25:30] biggest of which are the Republican and Democratic governors associations. So corporations have been giving to them. And that's public information. We all know it. And then those associations give that money to other super PACs to influence state and local elections.
Hannah McCarthy: Aha. And since those 527s which I'm I have never heard about before, they are just massive generic buckets that then go to other places. It's impossible to hold a corporation accountable. Right, as there [00:26:00] are so many steps.
Nick Capodice: Right. And the last ten years, about $1 billion have gone to these associations, half of which came from public company treasuries. And in that time, Republican 527s have received twice as much money as Democrat 527s to influence local elections.
Hannah McCarthy: However, Hye Young said the biggest donations in the wake of Citizens United, the explosion of money has been from wealthy individuals to super PACs. Right. So how much are we talking?
Nick Capodice: A study [00:26:30] was done on just the publicly available information on donations not to speak of unavailable data, but about 400 families are responsible for half of all presidential campaign financing.
Hannah McCarthy: That's a lot of money from a very few people. And when you're a candidate so heavily funded by one super rich person, you're probably going to do things that satisfy that person.
Nick Capodice: Right? Right. And nobody else.
Hannah McCarthy: Yeah, but you said not to speak of the [00:27:00] unavailable data. I do want to speak of the unavailable data, the non public data. Are there donations given that we don't know about.
Nick Capodice: Well, there shouldn't be because PACs have to tell you who gives to them. Here's Maggie Severns again
Maggie Severns: PACs have always had to disclose their donors. The Supreme Court, when it did the Citizens United opinion, it said that this principle of transparency and disclosure that's kind of been around with PACs for a while should also apply to unlimited political spending. So as long [00:27:30] as you are disclosing what you're doing, then the spending is constitutional. For example, one thing that we've seen more and more with super PACs is that someone will give to an organization, maybe a 501 c for who will then transfer that money to the super PAC. Well, do you know where that money came from, if it's being transferred from one group to another?
Hye Young You: Yeah. So there are a lot of nonprofit organizations and so it's the 501c, so that's a basically [00:28:00] our IRS code, right? So when IRS tried to set a tax rate and 501c is basically a tax exempt nonprofit organizations. And for example, NYU is a 501c3, which is the education, NRA National Rifle Association is a 501c4 Planned Parenthood is also 501c4 so 51c4 is a social welfare organization according to IRS definition. And these organizations [00:28:30] that they are supposed to work to improve social welfare.
Nick Capodice: These nonprofits, since they're supposed to work for social welfare, cannot spend more than 50% of their budget on campaign contributions.
Hye Young You: But the downside, or the one opaque thing downside is when you donate, you can as an individual, if you're a wealthy individual or ordinary citizen, you can donate to Planned Parenthood, you can donate to NRA. Right. But those donations are not [00:29:00] disclosed.
Hannah McCarthy: So someone could donate to a 501c3 anonymously, and then that money gets transferred to a super PAC and nobody knows who did it.
Nick Capodice: Right. This is referred to as, quote, dark money that's becoming more and more prevalent. And these donations are not traceable. And if you're curious how all of this super PACs, dark money, all of it has affected how campaigns are run. Here are some numbers. In 2008, the year of Hillary, the movie, [00:29:30] the FEC reported that a total of $1.6 billion was spent. By contrast, the 2020 election over $14 billion, 5.7 billion on the Trump Biden race and the rest on the congressional races. Now, each office is different, but nowadays it costs a lot of money to run for Congress. The average is 1.1 million for a House seat, 6.5 million for the Senate.
Hannah McCarthy: Now, we started with you saying how politicians [00:30:00] and Supreme Court justices have criticized this decision. Did anyone you spoke to say there were any positives to this decision at all?
Nick Capodice: I want to be forthright here and say that all three guests I interviewed were, quite frankly, critical of the decision. And so I asked Jeff if there was a plus side, a pro to the decision, and he gave me one.
Jeff Bone: On the advantage side. Businesses and multinational corporations are fairly nimble about responding to [00:30:30] crisis. And I'm just thinking about even currently in the situation between Russia and Ukraine, you. See corporations responding in ways that perhaps governments are slow to or there's constraints on government. And so there is a fair comment that businesses express some important democratic values and have agency and should be regarded and have an ability to speak to issues that are [00:31:00] political in nature.
Nick Capodice: You see, companies can move faster than politicians. They can do stuff without it going through Congress. These massive donations create a relationship between corporations and politicians, and that politician might ask a company to do something because the politician is unable to. And then I asked Hye Young for an advantage, a way the decision was in the nation's best interest.
Hye Young You: I'm not sure whether I can make that argument, because if you look [00:31:30] at the sheer amount of money in American elections, that's a mind blowing, right? Especially the the amount of independent expenditures, you know, spent by super PACs. So do we really need this amount of money in elections? And, you know, US is a country that elects basically everybody; judges and prosecutors. And if you look at other countries, it's extremely rare to find a cases that the judges elected or prosecutors [00:32:00] elected. So now this is super PACs. They are not just spending money on presidential elections and Senate elections. They are infiltrating the lower level elections. County sheriff and judges. Right. So in this sense, it is a national super PACs and they are having so much power in terms of shaping every election result and every layer of the government.
Jeff Bone: When an individual or a business has [00:32:30] a substantial financial chest of, a war chest to support the political process, those are our lawmakers. Those are the ones that determine what the regulations are going to be. Citizens United, by being a clear win for large money to say there is no limits that the government can impose upon businesses and wealthy donors that want to influence an issue or use [00:33:00] that money to advertise on behalf of a candidate, are picking a winner or are letting those with money be those with power in the political process. And the impact on our politics is going to be corrosive as a result.
Hye Young You: If you can just cater to one billionaire, you [00:33:30] don't need to appeal to a broader set of voters. Right. If one billionaire could finance ten politicians compared to 200, for example, 20 million people, I think that has a very different implication in terms of representation, political accountability and politicians behavior.
Hannah McCarthy: What about the future of Citizens United? I can't help but look at that number, $14 billion and wonder if it's [00:34:00] ever going to go down or even stay static. Our super PACs just going to keep giving more and more.
Nick Capodice: So one of the rallying cries of those who don't like the decision is, quote unquote, overturn Citizens United because it is a court ruling. Only the Supreme Court itself can, quote, overturn its decision, though I will say every few years someone in Congress proposes an amendment that will establish corporations as entities without First Amendment protections [00:34:30] or put restrictions on dark money. And I asked Maggie about those amendments, and she kind of laughed and said, Yeah, yeah, you see those every now and then. Amendments aren't at all likely to be successful, and I'm not trying to be a killjoy or anything, but amendments require two thirds of both houses of Congress and three fourths of all states to be ratified and added to our Constitution. So, yeah, it's just not going to happen.
Hannah McCarthy: So for those who do not like such a staggering sum of money and political campaigns, what's the good news? [00:35:00]
Nick Capodice: Well, I think there's two little pieces of good news, the first of which is a rising trend of politicians on both sides of the aisle raising significant sums not from super PACs, not from dark money, but from people. Lots and lots of small donations.
Archival: Anybody here know what the average contribution is? Right. $27. [00:35:30] Now, this in itself is revolutionary because it's true.
Nick Capodice: And the second upshot? Maggie made me stop and think about what all this money buys in the first place.
Maggie Severns: Some money that's spent on elections is spent in a very effective way. And political ads do move people's opinions somewhat. But especially as media gets more and more sophisticated, I think that [00:36:00] consumers are getting more and more sophisticated. So people I think people have a sense, one, that they're being kind of ripped off by Washington. They also in some cases, this money doesn't sway an election as much as you would think. You know, when really well deployed it can. But I think that kind of sophisticated consumers of political news can also increasingly kind of sift through things and form their own opinions. So I think it's important to remember that people aren't powerless in this situation. You're not you know, there's no kind of earworm [00:36:30] in your brain telling you exactly who to vote for and how to think. There are some kind of troubling things happening, but people can still take in information and make decisions for themselves.
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The United States Constitution gets a lot of credit for being the first of its kind. The progenitor of democratic constitution making. The spark that started a global fire. Is that the long and short of it, or is there more to the story?
Linda Colley, author of The Gun, The Ship and the Pen, weaves a longer, more complex narrative in this episode. We explore why constitutions (governmental limits, citizens rights and all) became necessary and who put pen to paper before 1787.
this mp3 audio file was automatically transcribed by Sonix with the This transcript may contain errors.
Akhil Reed Amar:
Let's start with the words. We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility.
Hannah McCarthy:
This is Professor Akhil Reed Amar in a video lecture about America's constitution.
Akhil Reed Amar:
... of liberty to ourselves and our posterity. Do ordain and establish this Constitution for the United States of America. One sentence and this, my friends. This one simple sentence changes everything.
Hannah McCarthy:
Amar is a professor at Yale University. Obviously a person far better informed than myself. I'm not here to contest him, but I do want to ask the question. Is this where the story starts? So Nick, when you think about the beginning of constitutions now, I'm talking about the relatively modern document that lays out the rules of how a government operates, who has power over what, and the rights of individuals. What comes to mind?
Nick Capodice:
We do. The United States.
Hannah McCarthy:
Right. That's what I thought you would say. Why?
Nick Capodice:
Because we were the first sort of constitutionally. This is where it all started. It's a New World Order 1787. People getting rights, government getting limits. I mean, I know there are hundreds of constitutions worldwide right now, and I know that there were documents like Magna Carta before the U.S. Constitution. But the type of document we're talking about showed up here first.
Hannah McCarthy:
What if I told you that's not quite how it went?
Linda Colley:
Written constitutions of the sort that we take for granted. Now, codified constitutions begin to get going very slowly in the 17th century, but they start getting more momentum both in Europe and in parts of North America from about 1750.
Hannah McCarthy:
I'm Hannah McCarthy.
Nick Capodice:
And I'm Nick Capodice.
Hannah McCarthy:
And this is Civics 101. And today, as on nearly every episode of Civics 101, you're going to bump into some American myths, myths such as, you know, we had the first modern constitution and it lit the path for change everywhere. Myths about what our framers thought and wanted, beloved American myths that you might not want dispelled.
Linda Colley:
I got quite a lot of angry phone calls, and indeed one said You should be shot.
Hannah McCarthy:
Here we go. This is Linda Colley. She wrote a book called The Gun, The Ship and the Pen.
Linda Colley:
I started this book partly, as I say in the introduction, because I'm an outsider, as my accent will immediately announce I'm a Brit in origin. The UK, quite wrongly to my mind, does not have a written constitution still. And when I came to the United States in the early 1980s, here I was suddenly living in a polity which had a written constitution and which celebrated it to an enormous degree.
Nick Capodice:
The UK does not have a written constitution. I just can't believe I didn't know that until now. Speaking of which, how did they skip that step?
Hannah McCarthy:
Well, they have kind of like an unwritten constitution. It's a combination of acts of parliament and court judgments. Now, the important distinction is that the UK has no single codified document that outlines the structure of government and how it relates to its citizens and territory like the US Constitution. So Linda Colley, a woman without a constitution of her own, arrives in the United States.
Linda Colley:
So I had to start learning about written constitutions, but I increasingly felt, well, it can't just be an American story. What about the bigger global story? And the more I looked, the more constitutions I found, and the more I realized it was just not a single unitary story where it began in the United States. The United States became the beacon of liberty, and it spread across the world, as did constitutions and liberty triumphs across the globe.
Nick Capodice:
Just to clarify, Hannah, is Linda saying that there were other codified democratic constitutions before ours?
Linda Colley:
If you look at the constitutions that are being created before the American ones, they're a variety. Corsica, a tiny Mediterranean island, acquires a constitution in 1755, which is very special, very democratic. All men, not women, but men above the age of 25, could vote and hold political office. The problem is that this constitution doesn't last because Corsica is invaded by the French in the late 1760s. Then you've got another early constitution that in Sweden in 1772. Quite an impressive document, but it's made by a king and a very ambitious king who actually wants to increase his own power. So constitutions are increasing in number. They're being talked about much more. But they are a mixed bag, even at this very early stage.
Hannah McCarthy:
So think about the name of Linda's book, The Gun, the Ship and the Pen. What is the priority in that list?
Nick Capodice:
I'm going to go ahead with guns.
Hannah McCarthy:
Yeah, the gun and then the ship. And only then the pen. Warfare. Wide scale warfare, to be exact, is what we're going for. So let's create the paperwork to support it.
Linda Colley:
War by the mid-18th century is becoming much larger. It's becoming more expensive, particularly if you want to build up a navy as well as an army.
Hannah McCarthy:
So large scale empire-building war across the world is really starting to become a thing.
Linda Colley:
All rulers face the challenge, particularly if they are ambitious, of how do they mobilize money, how do they mobilize war loads, and how do they mobilize their people to fight if need be? And that really focuses official minds, I think, much more on, okay, perhaps we need a kind of contract and it's worth thinking of these kind of codified constitutions as a kind of contract. Here are your rights. Here are your privileges. In return, we will want your your fiscal contributions. And in the event of war, we may want your manpower to.
Nick Capodice:
I've never thought of a constitution as like a contract, a document that says I'm going to tax and conscript you, essentially get you to pay for war with your money and your body, your participation. But if I as a ruler don't give you something in return, there could be trouble.
Hannah McCarthy:
Not too terribly far from what the US ended up needing to do. Now. It was different for us, to be sure, but our Constitution is a relative. It's a cousin of these constitutions. Pre-1787 constitutions had another purpose. You might recognize national unity and recognition on the world stage. Take the work of a certain ruler on the other side of the globe.
Linda Colley:
It was a very clever woman. She read avidly. She knew lots of enlightenment figures, but she also had her own fears in the 1760s because she was a usurp, she basically got her husband wiped out.
Nick Capodice:
Are we talking about Catherine the Great here?
Hannah McCarthy:
We are indeed. Catherine wasn't even born a Russian, and she orchestrated a successful coup to take the throne from her husband and rule independently. He also, rather conveniently shortly thereafter, died of an attack of hemorrhoids. So that's an impressive feat, but it's also a pretty audacious and potentially reckless one, which might also remind you of our American founding. So what do you do next to make sure your citizens and the rest of the world accept you as a ruler?
Linda Colley:
For her, this legal document the Nakaz has is partly designed to keep Russia united, but to make it more modern and also to stabilize her own position.
Hannah McCarthy:
The nakaz, n-a-k-a-z. Catherine believed that if she strengthened law and government, she would strengthen her monarchy. And to be sure, this is definitely a document designed to protect the monarchy. Still, she spent two years writing a document that also had a lot to say about natural liberty and all citizens being equally protected under the law.
Nick Capodice:
All right. Those are words I recognized.
Hannah McCarthy:
You sure do, Nick, because James Madison and many other framers ended up using some of the same source material that Catherine the Great did, a.k.a the Baron de Montesquieu. They just did it 20 years after her. This is French Enlightenment stuff. So Catherine finally finishes her Nakaz, which, by the way, it challenges the death penalty and torture, which I found pretty interesting.
Linda Colley:
And in order to get this vast new legal code ratified, she organizes her own convention, which is elected from around the Russian empire. It's a much bigger convention than what you get in Philadelphia. In some ways, it's a much more Democratic convention.
Nick Capodice:
So if Russia had a ratifying convention and a constitution, albeit a constitution designed in part to empower a monarchy, why am I just hearing about that now?
Linda Colley:
The Nakaz has never becomes put into Russian law because Catherine is distracted by fighting more wars and so forth.
Hannah McCarthy:
And so now we get to the thing about the US Constitution that is truly the first of its kind major, major staying power.
Nick Capodice:
As in the framers wrote it down and 200 plus years later it's still around looking with some major exceptions, pretty much the same.
Hannah McCarthy:
Yeah. So do we have the oldest active single text surviving constitution in the world? Well, some would say the 1600 San Marino Constitution has been used in part for much longer.
Nick Capodice:
Come on. Like San Marino is 60 kilometers wide.
Hannah McCarthy:
I think it is also worth pointing out that the Iroquois Confederacy is constitution was commemorated on a wampum belt, and that was in the 12th century. That confederacy of six nations is often considered one of the world's oldest participatory democracies, by the way. But a lot of historians would say, yes, the United States has the oldest surviving written Constitution. Still, I do want to look at the way that our Constitution had plenty of precedent out there in the world.
Linda Colley:
If we want to look at the US Constitution as drafted in Philadelphia in 1787, I mean, we know that many of the founding fathers were certainly not Democrats. One of their ideas was to sew this up fast, to get the Constitution drafted, to get it ratified very quickly by local elite groups. And one reason they wanted that done was the feeling, well, things may get out of control. We will have all sorts of demands from below.
Hannah McCarthy:
Demands from below. Meaning you've got all of these states doing their. One thing creating their own rules, including things that empower and things that disempower.
Linda Colley:
And of course, that increasingly is happening by the early 19th century as the state constitutions become more and more wide ranging about what they allow.
Hannah McCarthy:
We did, by the way, have a federal governing document at this time, the Articles of Confederation. The articles were just not working out too terribly well. So you've got these individual states establishing what they believe their government ought to be. And that is concerning to the powers that be, because that threatens the bigger sovereign state.
Nick Capodice:
All right. This is where I'm getting reminded of the kind of go to reason for having a constitution in the first place. Right. You mentioned earlier that Catherine the Great partially wanted a constitution to reinforce the legitimacy of Russia and her monarchy. And likewise, the framers needed a document that reinforced the legitimacy of America and the power of the federal government.
Hannah McCarthy:
Yeah, this idea of "this is our land and these are its rules." That is Constitution 101. Of course, I will say the US is tricky because it is also a federation. For reference, you can listen back to our episode on federalism, but you do still need functioning rules at the top. That is a well-established principle of constitutionalism. So that's one way in which the US is following constitution precedents. Another?
Linda Colley:
War is an element here, fear of war. The cost of war. The men of Philadelphia have many of them high ideals, but they are also politicians. They know pressures and they have their own fears. Hamilton writes about this, about how worried he is about American security in 1787. What are they afraid of? Well, it's partly, as I say, the fear that democracy might get out of control, but much more. It's the fear that they've got rid of the British, but they're still up there in Canada.
Hannah McCarthy:
If the US faces war again, does it have a united front that will take up arms to defend it? The Revolutionary War was won in part with and many historians say, because of help from the French and Spanish.
Nick Capodice:
Right. What if they're not exactly interested in helping a second time around?
Hannah McCarthy:
Worse than that, what if not only Britain up in Canada, but Spain or France? Look at this new nation of desperate states and think they're sitting ducks. If the people of the states of America are not bound together as one.
Nick Capodice:
Yeah. Like Franklin's Snake cartoon, you know, join or die. Yeah. United we stand, divided we fall.
Hannah McCarthy:
So rules from above to establish the US government as being in charge. That's one principle providing for a war ready nation. That's another. Both constitutional motivations that had long been at play in the world. Another constitutional precedent. Fear of secession and revolution.
Linda Colley:
That particularly concerned that the people who are flocking to the Western frontier as more as more of them are doing, they may say, and some of them are thinking this, you know, why don't we create our own country? Why should we be bound by the United States? Okay, we all want to throw out the British, but that's been done now. So let's think about, you know, creating a new our own new nation, which may not be the United States.
Hannah McCarthy:
Remember, though the US is no longer a nation of British colonies. It is still very much a nation of colonists spurred by the belief that they can move into already occupied lands, take them and claim sovereignty. What is stopping those colonists spirits from breaking off from the United States while they're at it? And then, of course, the framers faced that age old head scratcher how to get money out of people so your country stays alive.
Linda Colley:
They're worried about getting a more effective government because they're desperate for money. They need foreign loans because the war's been so expensive, they can't get foreign loans at a good rate. If the US seems turbulent, not well governed. So they've got all these worries and fears of potential failure and division, and so that's driving them as well as ideals and aspirations and optimism.
Nick Capodice:
All right. So this all seems to boil down to that we needed a way to get money and we needed a way to make ourselves look good on the global stage. Both things that constitutions had been doing for a while at this point. Right.
Hannah McCarthy:
Right. And you know, the United States first attempt at a Constitution, the Articles of Confederation, it didn't have a functioning tax policy which led to a debt crisis, which led to states cracking down on tax collecting, which led to some light armed insurrection, a.k.a. Shay's Rebellion, which led for some to the fear that other countries would look at us as a massive failure.
Nick Capodice:
And so the answer was, come up with something better, write it in secret, make people think you're only amending the existing constitution and then widely distribute a brand new document and just try to convince everyone it's good.
Hannah McCarthy:
Yeah, it's basically a PR campaign and that wasn't exactly a new idea either. Catherine the Great, she distributed her Nakaz in different languages in the 1760s. The King of Sweden did the same thing in 1772. It's just that the United States did it to much greater effect, thanks in part to the printing press and newspapers.
Linda Colley:
So Americans after 1787 are always sending out translations of the Constitution, partly because there's a market for them, but also because initially this is a way of saying, look, the United States has arrived. We are a working united polity and we now have an efficient central government.
Hannah McCarthy:
You send out this document and tell the world that you're a nation, that they will want to trade with your a nation that they will want to lend money to. You are most certainly not a nation that they will want to invade because you're united. And then other countries not only get the message, they start copying it. Hey, I like that part from the Swedish king and Catherine the Great was totally right about torture.
Linda Colley:
But then the men of Philadelphia, they were absolutely right there. And you can you can stitch your own constitution together. And we know that. Constitution makers borrow because these ideas, written ideas, can move with print. They can be translated. They can cross borders. And that's what constitutions do.
Hannah McCarthy:
So, look, this is not an episode about how our Constitution came to be. It's an episode asking why we need constitutions, why they started to come to be in the first place. The United States was not the first nation to write up a document of rules that help win wars, help to get money, help to have global credibility. But our method has been held up as an example, and that might help explain how the myth of our Constitution came to be. We did something that other nations had been doing for a while, and the way we did it inspired others. Constitutions after 1787 are coming up after the break.
Nick Capodice:
But first, if you want to read about all those other constitutions and Hannah assures me there are quite a few. You should subscribe to our newsletter. Extra Credit. It's Free comes out every two weeks. You're going to love it. Subscribe at our website, civics101podcast.org. All right. Are we back?
Hannah McCarthy:
We're back. You're listening to Civics 101. And we were just talking about the fact that the United States was neither the first Constitution nor, of course, the last Norway, the Netherlands, Hawaii, Ireland, Haiti. And for some of these nations, establishing a constitution was as much about keeping colonizers out as it was about creating a strong internal government.
Linda Colley:
As Hawaii increasingly says after 1840. Look, we have our own rules. We have a monarch, but he's now a constitutional monarch. We have this system. We are part of the world of states, modern states. Therefore, we are not fit territory to be colonized. We have our own identity, our own constitution, respected and go away. Other small powers do this as well. Haiti, when it establishes independence from French issues, a succession of very interesting constitutions banning slavery, establishing a black government. Tunisia does the same.
Hannah McCarthy:
Now, of course, having a constitution doesn't always work right. It doesn't always stick, especially in the face of relentless warring colonizers who also want your land or even internal conflict. And I asked Linda, okay, so what is it that makes a Constitution successful or not?
Linda Colley:
We should be careful about talking about failed constitutions because it's it's often more complicated. South America is a case in point for a long time because South American constitutions after independence in the 18 tens and 1820s South America, new nations run through lots and lots of constitutions. And for a while, historians and quite often Americans, I have to say, said that, you know, well, the USA could do it. Why can't these South Americans get themselves sorted out? Well, there's various reasons for that. But as a result of having so many constitutions, actually some South American constitutions became very Democratic by 1850 because they had to keep amending that constitutions and issuing new ones.
Nick Capodice:
Okay. So asking why a constitution doesn't stick might be less important than asking what happens when a nation tries to get one to stick and then everyone just goes back to the drawing board? Because those amendments, those reflections of a changed nation, those can be a good thing.
Hannah McCarthy:
To that point, Lynda makes the argument that perhaps it's a problem that the US Constitution is so difficult to amend, and that is the reason that someone said she should be shot. And I just want to say, coming at other nations constitutions, from the perspective of the United States Constitution as the oldest and the stickiest. The subtext of that, I think a lot of the time being, we started democracy and we did it the best. That stops us from seeing what constitutionalism has done elsewhere in the world sometimes what it's done better in the world.
Linda Colley:
Places like Argentina had a far more capacious electorate in terms certainly of race and ethnicity than the United States had. So their constitutions may not last long, but sometimes they are very democratic indeed.
Nick Capodice:
Well, you know, I don't know if it's ever occurred to me before, but did Linda say anything about how other nations see our Constitution? If people in the United States, big surprise, tend to think they're the oldest and the best, what do people in other constitutional governments think?
Linda Colley:
Well, partly because constitutions have generally been written about in national terms and often in patriotic terms. And it's not just the USA. I mean, you know, France will tell you, well, you don't forget the American Constitution. It really isn't until after the French Revolution that constitutions start worrying about social reform and things like that, you know, and reforming the law and so forth. So there's a lot of national conceit involved in many accounts of constitutions.
Nick Capodice:
In other words, it isn't unique to see your constitution through patriotism-colored glasses.
Hannah McCarthy:
The importance of not being unique, Nick, actually makes me think back to something Linda said at the beginning of this episode. What is the point of putting the US Constitution in context? The point to me is looking at our country and what it has done and is doing and recognizing that we didn't spring like Athena out of Zeus's head, fully formed and ready for war. We did not come from pure, divine inspiration. There are things about our Constitution that are groundbreaking and inspiring, but we are members of a global history just like everyone else's. And sometimes I think it's helpful to take yourself down a peg and look at the bigger picture.
Linda Colley:
The United States became the beacon of liberty, and it spread across the world, as did constitutions and liberty triumphs across the globe. One has to have a rather rosy view of the world at present to think that given some of the things that are happening in the world today. So I wanted to tell a more nuanced story while of course, I mean, the US Constitution is a phenomenal achievement, but it's not unique. It isn't the beginning of the story. So I wanted to get these ideas across. Some people like them. Some people find it hard to take. But that's the nature of writing new history.
Hannah McCarthy:
That does it for this episode. But there is so much more to learn about the many constitutions of the world and how they measure up to our own and vice versa. There's a very cool website constituteproject.org that lets you read and compare the world's constitutions, and I highly recommend it whether you're drafting your own constitution or not. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Xylo-Zico, Nuel Thiel Records, Timothy Lewis, John Runefelt, Cody High and Tigran Viken. You can find this in every episode of Civics 101 at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.
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Akhil Reed Amar: Let's start with the words. We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility.
Hannah McCarthy: This is Professor Akhil Reed Amar in a video lecture about America's constitution.
Akhil Reed Amar: ... of liberty to ourselves and our posterity. Do ordain and establish this Constitution for the United States of America. One sentence and this, [00:00:30] my friends. This one simple sentence changes everything.
Hannah McCarthy: Amar is a professor at Yale University. Obviously a person far better informed than myself. I'm not here to contest him, but I do want to ask the question. Is this where the story starts? So [00:01:00] Nick, when you think about the beginning of constitutions now, I'm talking about the relatively modern document that lays out the rules of how a government operates, who has power over what, and the rights of individuals. What comes to mind?
Nick Capodice: We do. The United States.
Hannah McCarthy: Right. That's what I thought you would say. Why?
Nick Capodice: Because we were the first sort of constitutionally. This is where it all started. It's [00:01:30] a New World Order 1787. People getting rights, government getting limits. I mean, I know there are hundreds of constitutions worldwide right now, and I know that there were documents like Magna Carta before the U.S. Constitution. But the type of document we're talking about showed up here first.
Hannah McCarthy: What if I told you that's not quite how it went?
Linda Colley: Written constitutions of the sort that we take for granted. Now, codified [00:02:00] constitutions begin to get going very slowly in the 17th century, but they start getting more momentum both in Europe and in parts of North America from about 1750.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And I'm Nick Capodice.
Hannah McCarthy: And this is Civics 101. And today, as on nearly every episode of Civics 101, you're going to bump into some American myths, myths [00:02:30] such as, you know, we had the first modern constitution and it lit the path for change everywhere. Myths about what our framers thought and wanted, beloved American myths that you might not want dispelled.
Linda Colley: I got quite a lot of angry phone calls, and indeed one said You should be shot.
Hannah McCarthy: Here we go. This is Linda Colley. She wrote a book called The Gun, [00:03:00] The Ship and the Pen.
Linda Colley: I started this book partly, as I say in the introduction, because I'm an outsider, as my accent will immediately announce I'm a Brit in origin. The UK, quite wrongly to my mind, does not have a written constitution still. And when I came to the United States in the early 1980s, here I was suddenly living [00:03:30] in a polity which had a written constitution and which celebrated it to an enormous degree.
Nick Capodice: The UK does not have a written constitution. I just can't believe I didn't know that until now. Speaking of which, how did they skip that step?
Hannah McCarthy: Well, they have kind of like an unwritten constitution. It's a combination of acts of parliament and court judgments. Now, the important distinction is that the UK has no single codified document that outlines the structure of government [00:04:00] and how it relates to its citizens and territory like the US Constitution. So Linda Colley, a woman without a constitution of her own, arrives in the United States.
Linda Colley: So I had to start learning about written constitutions, but I increasingly felt, well, it can't just be an American story. What about the bigger global story? And the more I looked, the more constitutions I found, [00:04:30] and the more I realized it was just not a single unitary story where it began in the United States. The United States became the beacon of liberty, and it spread across the world, as did constitutions and liberty triumphs across the globe.
Nick Capodice: Just to clarify, Hannah, is Linda saying that there were other codified democratic constitutions before [00:05:00] ours?
Linda Colley: If you look at the constitutions that are being created before the American ones, they're a variety. Corsica, a tiny Mediterranean island, acquires a constitution in 1755, which is very special, very democratic. All men, not women, but men above the age of 25, could vote [00:05:30] and hold political office. The problem is that this constitution doesn't last because Corsica is invaded by the French in the late 1760s. Then you've got another early constitution that in Sweden in 1772. Quite an impressive document, but it's made by a king and a very ambitious king who actually wants to increase his [00:06:00] own power. So constitutions are increasing in number. They're being talked about much more. But they are a mixed bag, even at this very early stage.
Hannah McCarthy: So think about the name of Linda's book, The Gun, the Ship and the Pen. What is the priority in that list?
Nick Capodice: I'm going to go ahead with guns.
Hannah McCarthy: Yeah, the gun and then the ship. And only then the pen. Warfare. [00:06:30] Wide scale warfare, to be exact, is what we're going for. So let's create the paperwork to support it.
Linda Colley: War by the mid-18th century is becoming much larger. It's becoming more expensive, particularly if you want to build up a navy as well as an army.
Hannah McCarthy: So large scale empire-building war across the world is really starting to become a thing.
Linda Colley: All rulers face the [00:07:00] challenge, particularly if they are ambitious, of how do they mobilize money, how do they mobilize war loads, and how do they mobilize their people to fight if need be? And that really focuses official minds, I think, much more on, okay, perhaps we need a kind of contract and it's worth thinking of these kind [00:07:30] of codified constitutions as a kind of contract. Here are your rights. Here are your privileges. In return, we will want your your fiscal contributions. And in the event of war, we may want your manpower to.
Nick Capodice: I've never thought of a constitution as like a contract, a document that says I'm going to tax and conscript you, essentially get you to pay for war with your money and your body, your participation. [00:08:00] But if I as a ruler don't give you something in return, there could be trouble.
Hannah McCarthy: Not too terribly far from what the US ended up needing to do. Now. It was different for us, to be sure, but our Constitution is a relative. It's a cousin of these constitutions. Pre-1787 constitutions had another purpose. You might recognize national unity and recognition on the world stage. Take the work of a [00:08:30] certain ruler on the other side of the globe.
Linda Colley: It was a very clever woman. She read avidly. She knew lots of enlightenment figures, but she also had her own fears in the 1760s because she was a usurp, she basically got her husband wiped out.
Nick Capodice: Are we talking about Catherine the Great here?
Hannah McCarthy: We are indeed. Catherine wasn't even born a Russian, and she orchestrated a successful coup to [00:09:00] take the throne from her husband and rule independently. He also, rather conveniently shortly thereafter, died of an attack of hemorrhoids. So that's an impressive feat, but it's also a pretty audacious and potentially reckless one, which might also remind you of our American founding. So what do you do next to make sure your citizens and the rest of the world accept you as a ruler?
Linda Colley: For her, this legal [00:09:30] document the Nakaz has is partly designed to keep Russia united, but to make it more modern and also to stabilize her own position.
Hannah McCarthy: The nakaz, n-a-k-a-z. Catherine believed that if she strengthened law and government, she would strengthen her monarchy. And to be sure, this is definitely a document designed to protect the monarchy. Still, [00:10:00] she spent two years writing a document that also had a lot to say about natural liberty and all citizens being equally protected under the law.
Nick Capodice: All right. Those are words I recognized.
Hannah McCarthy: You sure do, Nick, because James Madison and many other framers ended up using some of the same source material that Catherine the Great did, a.k.a the Baron de Montesquieu. They just did it 20 years after her. This is French Enlightenment stuff. So Catherine finally finishes her Nakaz, which, by the way, [00:10:30] it challenges the death penalty and torture, which I found pretty interesting.
Linda Colley: And in order to get this vast new legal code ratified, she organizes her own convention, which is elected from around the Russian empire. It's a much bigger convention than what you get in Philadelphia. In some ways, it's a much more Democratic convention.
Nick Capodice: So if Russia [00:11:00] had a ratifying convention and a constitution, albeit a constitution designed in part to empower a monarchy, why am I just hearing about that now?
Linda Colley: The Nakaz has never becomes put into Russian law because Catherine is distracted by fighting more wars and so forth.
Hannah McCarthy: And so now we get to the thing about the US Constitution that is truly the first of its kind major, major [00:11:30] staying power.
Nick Capodice: As in the framers wrote it down and 200 plus years later it's still around looking with some major exceptions, pretty much the same.
Hannah McCarthy: Yeah. So do we have the oldest active single text surviving constitution in the world? Well, some would say the 1600 San Marino Constitution has been used in part for much longer.
Nick Capodice: Come on. Like San Marino is 60 kilometers wide.
Hannah McCarthy: I think it is also worth pointing out that the Iroquois [00:12:00] Confederacy is constitution was commemorated on a wampum belt, and that was in the 12th century. That confederacy of six nations is often considered one of the world's oldest participatory democracies, by the way. But a lot of historians would say, yes, the United States has the oldest surviving written Constitution. Still, I do want to look at the way that our Constitution had plenty of precedent out there in the world.
Linda Colley: If we want to look at the US Constitution [00:12:30] as drafted in Philadelphia in 1787, I mean, we know that many of the founding fathers were certainly not Democrats. One of their ideas was to sew this up fast, to get the Constitution drafted, to get it ratified very quickly by local elite groups. And one reason they wanted that done was the [00:13:00] feeling, well, things may get out of control. We will have all sorts of demands from below.
Hannah McCarthy: Demands from below. Meaning you've got all of these states doing their. One thing creating their own rules, including things that empower and things that disempower.
Linda Colley: And of course, that increasingly is happening by the early 19th century as the state constitutions become more and more wide ranging about what [00:13:30] they allow.
Hannah McCarthy: We did, by the way, have a federal governing document at this time, the Articles of Confederation. The articles were just not working out too terribly well. So you've got these individual states establishing what they believe their government ought to be. And that is concerning to the powers that be, because that threatens the bigger sovereign state.
Nick Capodice: All right. This is where I'm getting reminded of the kind of go to reason for having a constitution in the first place. Right. You mentioned [00:14:00] earlier that Catherine the Great partially wanted a constitution to reinforce the legitimacy of Russia and her monarchy. And likewise, the framers needed a document that reinforced the legitimacy of America and the power of the federal government.
Hannah McCarthy: Yeah, this idea of "this is our land and these are its rules." That is Constitution 101. Of course, I will say the US is tricky because it is also a federation. For reference, you can listen back to our episode on federalism, [00:14:30] but you do still need functioning rules at the top. That is a well-established principle of constitutionalism. So that's one way in which the US is following constitution precedents. Another?
Linda Colley: War is an element here, fear of war. The cost of war. The men of Philadelphia have many of them high ideals, but they are also politicians. They know pressures [00:15:00] and they have their own fears. Hamilton writes about this, about how worried he is about American security in 1787. What are they afraid of? Well, it's partly, as I say, the fear that democracy might get out of control, but much more. It's the fear that they've got rid of the British, but they're still up there in Canada.
Hannah McCarthy: If [00:15:30] the US faces war again, does it have a united front that will take up arms to defend it? The Revolutionary War was won in part with and many historians say, because of help from the French and Spanish.
Nick Capodice: Right. What if they're not exactly interested in helping a second time around?
Hannah McCarthy: Worse than that, what if not only Britain up in Canada, but Spain or France? Look at this new nation of desperate states and think [00:16:00] they're sitting ducks. If the people of the states of America are not bound together as one.
Nick Capodice: Yeah. Like Franklin's Snake cartoon, you know, join or die. Yeah. United we stand, divided we fall.
Hannah McCarthy: So rules from above to establish the US government as being in charge. That's one principle providing for a war ready nation. That's another. Both constitutional motivations that had long been at play in the world. Another constitutional precedent. Fear of secession and revolution. [00:16:30]
Linda Colley: That particularly concerned that the people who are flocking to the Western frontier as more as more of them are doing, they may say, and some of them are thinking this, you know, why don't we create our own country? Why should we be bound by the United States? Okay, we all want to throw out the British, but that's been done now. So let's think about, you know, creating a new our own [00:17:00] new nation, which may not be the United States.
Hannah McCarthy: Remember, though the US is no longer a nation of British colonies. It is still very much a nation of colonists spurred by the belief that they can move into already occupied lands, take them and claim sovereignty. What is stopping those colonists spirits from breaking off from the United States while they're at it? And then, of course, the framers faced that age old head scratcher how to get money out of people so your country stays alive. [00:17:30]
Linda Colley: They're worried about getting a more effective government because they're desperate for money. They need foreign loans because the war's been so expensive, they can't get foreign loans at a good rate. If the US seems turbulent, not well governed. So they've got all these worries and fears of potential [00:18:00] failure and division, and so that's driving them as well as ideals and aspirations and optimism.
Nick Capodice: All right. So this all seems to boil down to that we needed a way to get money and we needed a way to make ourselves look good on the global stage. Both things that constitutions had been doing for a while at this point. Right.
Hannah McCarthy: Right. And you know, the United States first attempt at a Constitution, [00:18:30] the Articles of Confederation, it didn't have a functioning tax policy which led to a debt crisis, which led to states cracking down on tax collecting, which led to some light armed insurrection, a.k.a. Shay's Rebellion, which led for some to the fear that other countries would look at us as a massive failure.
Nick Capodice: And so the answer was, come up with something better, write it in secret, make people think you're only amending [00:19:00] the existing constitution and then widely distribute a brand new document and just try to convince everyone it's good.
Hannah McCarthy: Yeah, it's basically a PR campaign and that wasn't exactly a new idea either. Catherine the Great, she distributed her Nakaz in different languages in the 1760s. The King of Sweden did the same thing in 1772. It's just that the United States did it to much greater effect, thanks in part to the printing press and newspapers.
Linda Colley: So Americans [00:19:30] after 1787 are always sending out translations of the Constitution, partly because there's a market for them, but also because initially this is a way of saying, look, the United States has arrived. We are a working united polity and we now have an efficient central government.
Hannah McCarthy: You send out this document and tell the world [00:20:00] that you're a nation, that they will want to trade with your a nation that they will want to lend money to. You are most certainly not a nation that they will want to invade because you're united. And then other countries not only get the message, they start copying it. Hey, I like that part from the Swedish king and Catherine the Great was totally right about torture.
Linda Colley: But then the men of Philadelphia, they were absolutely right there. And you can you can stitch your own constitution [00:20:30] together. And we know that. Constitution makers borrow because these ideas, written ideas, can move with print. They can be translated. They can cross borders. And that's what constitutions do.
Hannah McCarthy: So, look, this is not an episode about how our Constitution came to be. It's an episode asking why we need constitutions, why they started to come to be in the first [00:21:00] place. The United States was not the first nation to write up a document of rules that help win wars, help to get money, help to have global credibility. But our method has been held up as an example, and that might help explain how the myth of our Constitution came to be. We did something that other nations had been doing for a while, and the way we did it inspired others. Constitutions after 1787 are [00:21:30] coming up after the break.
Nick Capodice: But first, if you want to read about all those other constitutions and Hannah assures me there are quite a few. You should subscribe to our newsletter. Extra Credit. It's Free comes out every two weeks. You're going to love it. Subscribe at our website, civics101podcast.org. All right. Are we back?
Hannah McCarthy: We're back. You're listening to Civics 101. And we were just talking about the fact that the United States was neither the first Constitution [00:22:00] nor, of course, the last Norway, the Netherlands, Hawaii, Ireland, Haiti. And for some of these nations, establishing a constitution was as much about keeping colonizers out as it was about creating a strong internal government.
Linda Colley: As Hawaii increasingly says after 1840. Look, we have our own rules. We have a monarch, but he's now a constitutional [00:22:30] monarch. We have this system. We are part of the world of states, modern states. Therefore, we are not fit territory to be colonized. We have our own identity, our own constitution, respected and go away. Other small powers do this as well. Haiti, when it establishes independence from French issues, [00:23:00] a succession of very interesting constitutions banning slavery, establishing a black government. Tunisia does the same.
Hannah McCarthy: Now, of course, having a constitution doesn't always work right. It doesn't always stick, especially in the face of relentless warring colonizers who also want your land or even internal conflict. And I asked Linda, okay, so what is it that makes a Constitution [00:23:30] successful or not?
Linda Colley: We should be careful about talking about failed constitutions because it's it's often more complicated. South America is a case in point for a long time because South American constitutions after independence in the 18 tens and 1820s South America, new nations run through lots and lots of constitutions. [00:24:00] And for a while, historians and quite often Americans, I have to say, said that, you know, well, the USA could do it. Why can't these South Americans get themselves sorted out? Well, there's various reasons for that. But as a result of having so many constitutions, actually some South American constitutions became very Democratic [00:24:30] by 1850 because they had to keep amending that constitutions and issuing new ones.
Nick Capodice: Okay. So asking why a constitution doesn't stick might be less important than asking what happens when a nation tries to get one to stick and then everyone just goes back to the drawing board? Because those amendments, those reflections of a changed nation, those can be a good thing.
Hannah McCarthy: To that point, Lynda makes the argument that perhaps it's a problem that the US Constitution [00:25:00] is so difficult to amend, and that is the reason that someone said she should be shot. And I just want to say, coming at other nations constitutions, from the perspective of the United States Constitution as the oldest and the stickiest. The subtext of that, I think a lot of the time being, we started democracy and we did it the best. That stops us from seeing what constitutionalism has done elsewhere in the world sometimes what it's done better in the world.
Linda Colley: Places [00:25:30] like Argentina had a far more capacious electorate in terms certainly of race and ethnicity than the United States had. So their constitutions may not last long, but sometimes they are very democratic indeed.
Nick Capodice: Well, you know, I don't know if it's ever occurred to me before, but did Linda say [00:26:00] anything about how other nations see our Constitution? If people in the United States, big surprise, tend to think they're the oldest and the best, what do people in other constitutional governments think?
Linda Colley: Well, partly because constitutions have generally been written about in national terms and often in patriotic terms. And it's not just the USA. I mean, you know, France [00:26:30] will tell you, well, you don't forget the American Constitution. It really isn't until after the French Revolution that constitutions start worrying about social reform and things like that, you know, and reforming the law and so forth. So there's a lot of national conceit involved in many accounts of constitutions.
Nick Capodice: In other words, it isn't unique to see your constitution through patriotism-colored [00:27:00] glasses.
Hannah McCarthy: The importance of not being unique, Nick, actually makes me think back to something Linda said at the beginning of this episode. What is the point of putting the US Constitution in context? The point to me is looking at our country and what it has done and is doing and recognizing that we didn't spring like Athena out of Zeus's head, fully formed and ready for war. We did not come from pure, divine inspiration. There are [00:27:30] things about our Constitution that are groundbreaking and inspiring, but we are members of a global history just like everyone else's. And sometimes I think it's helpful to take yourself down a peg and look at the bigger picture.
Linda Colley: The United States became the beacon of liberty, and it spread across the world, as did constitutions and liberty triumphs across the globe. One has to have a rather rosy view of the world at present to think [00:28:00] that given some of the things that are happening in the world today. So I wanted to tell a more nuanced story while of course, I mean, the US Constitution is a phenomenal achievement, but it's not unique. It isn't the beginning of the story. So I wanted to get these ideas across. Some people like them. Some people find it hard to [00:28:30] take. But that's the nature of writing new history.
Hannah McCarthy: That does it for this episode. But there is so much more to learn about the many constitutions of the world and how they measure up to our own and vice versa. There's a very cool website constituteproject.org that lets you read and compare the world's constitutions, and I highly recommend it whether you're drafting your own constitution [00:29:00] or not. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Xylo-Zico, Nuel Thiel Records, Timothy Lewis, John Runefelt, Cody High and Tigran Viken. You can find this in every episode of Civics 101 at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.
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Since 1935, the Senate has had a parliamentarian. Their job is to decide, in a truly nonpartisan way, how things operate in the chamber. Their power to decide what can and cannot be done when it comes to legislation, filibustering, motions, and points of order has grown ever since.
Today, learn about this complicated and often-unseen role from Sarah Binder, professor at George Washington University, and a person who spent over thirty years in the office, former Senate Parliamentarian Alan Frumin.
senate parliamentarian final.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.
Archival:
Is it the contention of the Chair that under the rules of the Senate, I am not allowed to accurately describe public views of Senator Sessions.
Nick Capodice:
Hannah, I want to play this clip from February of 2017.
Hannah McCarthy:
Sure. Go ahead.
Nick Capodice:
Senator Elizabeth Warren is found in violation of Senate Rule 19 and is being cautioned by the chair.
Archival:
The chair has not made a ruling as respect to the senator's comments. The senator is following process and tradition by reminding the center of Massachusetts of the rule.
Nick Capodice:
Standard procedural stuff. Right. But I cut something out. This is what it really sounded like.
Archival:
The chair has not made a ruling as respect to the Senator's comments.
Archival:
Following process and tradition.
Archival:
The Senator is following process and tradition.
Archival:
Reminding the Senator from.
Archival:
By reminding this.
Hannah McCarthy:
Wait, someone is just feeding him lines. This is happening in the Senate?
Nick Capodice:
It happens every day in the Senate.
Nick Capodice:
So I've read a few articles about you, and people tend to refer to you in sports metaphors like you're a referee or an umpire. Is that accurate? Is it like that?
Alan Frumin:
Yes. Yes, it's like that.
Hannah McCarthy:
Who's that?
Nick Capodice:
That is Alan Frumin. I know we've had a lot of guests over the years who know an awful lot about how things work in Washington. But when it comes to the Senate, Allen beats them all. And he would never say that he is a humble man. But it's true because knowing the intricacies of the Senate was his job for 35 years.
Hannah McCarthy:
What was his job?
Archival:
JWell, we've got breaking news tonight. The Senate parliamentarian has denied Senate Democrats attempt to include a $15 an hour minimum wage..
Archival:
Senate needs to step up override the parliamentarian. The parliamentarian is not elected.
Archival:
Big news and it is big news, the Senate parliamentarian says. Only one new budget resolution and one reconciliation package. That's it.
Nick Capodice:
You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy:
I'm Hannah McCarthy.
Nick Capodice:
And today we're talking about a position that has been referred to as, "the most powerful person in Washington," the Senate parliamentarian.
Hannah McCarthy:
Are you trying to tell me that the person whispering in the chair's ear is more powerful than the speaker of the House or the Senate majority leader or the president? Are you serious?
Nick Capodice:
Maybe I'm being a bit hyperbolic. That line was from a Politico article about the current Senate parliamentarian Elizabeth McDonough. And I will get into why McDonough has claimed to hold so much power right now a little bit later.
Hannah McCarthy:
All right. First off, can you tell me what the Senate parliamentarian does.
Alan Frumin:
At the risk of sounding conceited? The Senate parliamentarian is the de facto presiding officer of the Senate.
Nick Capodice:
The presiding officer is the person who sits in the chair of the Senate and rules on everything, who can speak, who can interrupt somebody speaking, what someone speaking can and cannot say. They rule on every point of order. Points of order are basically objections to what someone else is saying or doing.
Hannah McCarthy:
Oh wait. I thought that the Vice President was the presiding officer in the Senate.
Nick Capodice:
Yes, technically they are. But when the veep is not around, which is pretty much all the time, the most senior member of the majority sits in the chair. And Alan told me most of the time Senators don't want to be in the chair ruling on things. They want to be down there doing senator stuff. Now, to be clear, the parliamentarian doesn't sit in the chair, but they tell the person in the chair what they should do.
Sarah Binder:
They make decisions. They give advice based on past episodes of confusion.
Nick Capodice:
This is Sarah Binder. She's a professor of political science at George Washington University.
Sarah Binder:
I teach Congress. It's the only thing I know anything about. So if you look at the Constitution, it says Article one, Section five. The House and Senate will make their own rules if you have the power to make your rules. You also have the power to apply your rules. And that's the point at which the parliamentarians in the House and the Senate come to play a role. They are supposed to be the non partizan, neutral expert arbiter of how to apply the rules. And it sounds like, well, that's not hard. However, if you look at the rules of the House and you look at the rules of the Senate, they don't actually tell you what to do and how to apply them in every single circumstance the House has.
Hannah McCarthy:
A parliamentarian to.
Nick Capodice:
It does. And while I am focusing on the Senate parliamentarian for this episode, the parliamentarians in both chambers of Congress are the ones who know the rules and they advise the Presiding Officer on what to do in any given situation. Now, Hannah, do you know what dictates the rules of the Senate?
Hannah McCarthy:
I'm pretty sure it's something that people use in like student council and community meetings. It's Robert's Rules of Order, right?
Nick Capodice:
Yeah, I thought so too. But I was wrong and don't feel bad. Even some senators thought the same thing.
Alan Frumin:
Laypeople assume and one or two senators elect had assumed that the Senate used Robert's Rules of Order. And I would suggest to people that, okay, if you are familiar with Roberts Rules of Order, you probably know that Colonel Robert first published him, I believe, in 1876, which would then beg the question, how did the Senate muddle through from 1789 until 1876, before Colonel Roberts saved them, which he didn't do?
Hannah McCarthy:
Of course, if they don't use Robert's Rules of Order, what do they use?
Nick Capodice:
They use their own rules. They make them and they update them every few years. The most recent rules and manual of the Senate is from 2013 and comprises 44 rules.
Alan Frumin:
Point being that the Senate is a self-governing body that operates by its own rules and precedents. Nobody is familiar with them coming into the Senate. And smart senators recognize right away that the rules of the road in the Senate are unique to the body, and some of them will set out in various ways to become knowledgeable.
Hannah McCarthy:
How complicated are those 44 rules?
Nick Capodice:
Fairly complicated. I tried to read it. You're looking at basically a dense 80 pages of procedure. Honestly, I would have a really tough time learning them if I was to spend a day in the Senate. But those 80 pages are the absolute tip of the iceberg.
Sarah Binder:
So here's the thing. There were what we call precedents. So the House might decide something or Senate might decide something, and some of them might have scratched it down on a piece of paper. And there might there was a clerk at the front on the dais, and they usually reported to the speaker or to the presiding officer. But basically there was no written, right? There are no really compilation of precedents. So neither the House or Senate really knew the members didn't know what to do in any new circumstance. So there were lots of appeals, lots of points of order. Hey, stop. I raise a point of order. That's not how this works.
Alan Frumin:
For what purpose does the gentleman from New York or Mr. Speaker, I rise to a point of order.
Nick Capodice:
A gentleman will state his point of order.
Alan Frumin:
Mr. Speaker, I object to consideration of this bill because it.
Sarah Binder:
Let's rule and they'd arbitrated. There'll be lots of votes on the floor.
Nick Capodice:
But those decades of precedence, often written on little slips of paper, have been collected and compiled into an official manual. Allen helped edit it. It's called Redux, Senate Procedure, Precedents and Practices, and that's 1608 pages.
Hannah McCarthy:
So the parliamentarian is the one who knows all of this stuff. They advise whomever is the presiding officer in the Senate.
Nick Capodice:
Right.
Hannah McCarthy:
How did they do that physically, though?
Nick Capodice:
Well, to explain this, Alan showed me a photo of where everyone on the Senate dais sits.
Alan Frumin:
There's the Senate floor. Unfortunately, my head is in the way. There are four chairs across the secretaries desk, journal clerk, parliamentarian, legislative clerk and bill clerk. There are other chairs behind. There is a chair for the Secretary of the Senate. There's a chair for the sergeant at arms. So. So this is the parliamentarian's battle station. It's a swivel chair. It's a swivel chair that rocks. I have seen it go over once on television. That was quite a scene. And in essence, what the parliamentarian does is she swivels and speaks to the presiding officer up here. The presiding officers, mike has a mute switch. It's a spring activated mute switch. The parliamentarian can press and hold if she wants to mute the microphone so that the conversation between the parliamentarian and presiding officer is not public.
Nick Capodice:
I asked Alan if the parliamentarian is just swiveling back and forth all day, and he said that was pretty accurate.
Hannah McCarthy:
Is this job anywhere in the Constitution?
Nick Capodice:
No, it is not. The job was created in 1935 during FDR's New Deal.
Alan Frumin:
Era, when Roosevelt and his administration became a little more proactive legislatively. And Roosevelt's vice president had other things to do than sit on the dais of the Senate and preside. And so the Senate decided that they needed somebody to be the repository of the various interpretations of the Senate's rules. And they selected a man named Charles Watkins who had first come to the Senate in 1904.
Nick Capodice:
Charles Watkins He started out as a stenographer in 1904 in the Senate. He moved up to a journal clerk. That's the person who takes the minutes of what happens all day, every day in the Senate. And the job of parliamentarian was created for him in 1935, and he was good at it. He had a remarkable memory. He was considered completely non partial to either party. And before the microphone mute button existed, Watkins would spin around in his chair and whisper to the presiding officer hundreds of times a day, and as a result, a newspaper called him, quote, the Senate's ventriloquist. And he held the job until he retired in 1964.
Hannah McCarthy:
So 60 years, 60 years.
Nick Capodice:
And the next parliamentarian, he had worked with Watkins.
Sarah Binder:
My daughter once asked me like, how do you get to become the Senate parliamentarian? And I somewhat flippantly said, Well, first you have to be the assistant parliamentarian, but it turns out to be generally true that they hire from within.
Nick Capodice:
Allen came in this way. He had been the assistant parliamentarian.
Sarah Binder:
Why is that important? It helps to limit the partizanship, right? Because they they get first of all, they get socialized into the practice of being the parliamentarian. And it's a source of expertize.
Alan Frumin:
It's always been the model and it's the only appropriate model.
Nick Capodice:
Alan told me in the office of the parliamentarian, you want to have assistants spaced out generationally. So when someone leaves office, the next person can be there a long time. And to this date there have been six and only six Senate parliamentarians.
Hannah McCarthy:
And Sarah says the job requires limited partizanship, which honestly is something that feels nearly impossible here in 2022. Can a parliamentarian be truly nonpartisan?
Nick Capodice:
From what I can gather, parliamentarians just might be among the most nonpartisan people in Washington, D.C. And I say that because their rulings help both sides and they take heat from both sides as a result. And let me give you an example. One parliamentarian, Robert Dove, was dismissed by Democratic Majority Leader Robert Byrd and was replaced by Alan FRUMIN. And then Robert Dove was reappointed again a few years later and then fired and replaced by Alan again, but this time by Republican Senate Majority Leader Trent Lott.
Hannah McCarthy:
What did Dove do that caused so much controversy?
Nick Capodice:
Well, that is related to the powers of the Senate parliamentarian that we haven't gotten into. The reason why they have been named the most powerful people in America, so powerful that at one point Alan and his family received death threats and all. That's coming up after the break here on Civics 101.
Hannah McCarthy:
But first, when Nick was researching for this episode, he sent me this list. It was the 56 things that they don't teach you at parliamentary school that Alan had sent him. And he promises he will include selections of that list in next week's newsletter. And you can subscribe to get that free and fun newsletter that comes out every two weeks at the top of our website, civics101podcast.org. We're back. We're talking about the Senate parliamentarian. Zelnick Let's get into why this job is so powerful.
Nick Capodice:
Yeah, this is maybe the reason why we've gotten so many requests from listeners to do an episode on this. Two specific facets of the position that result in some senators getting very, very frustrated. Number one committee assignments. Here's Sarah Binder again.
Sarah Binder:
This one's a little less noticed about the parliamentarian, but the bulk of the work is actually deciding when a bill is introduced which committee gets the bill. That's a power of the speaker and it's a power of the presiding officer and the rules. But a norm of practice is that the parliamentarian makes those decisions and those decisions can be pretty consequential.
Hannah McCarthy:
So even though deciding which committee gets a bill is technically the power of the presiding officer of the Senate, the parliamentarian is the one really making the call.
Nick Capodice:
Yeah. Every time. And since most bills die in committee, senators care a great deal about which committee they go to. You can work on a bill for months in advance before you write it, meeting with members of a committee beforehand to make sure it goes through and at the last minute find out it's going to go somewhere else. Here is former parliamentarian Alan FRUMIN again.
Alan Frumin:
You can have a thousand page bill dealing with environmental remediation, all of this material in the jurisdiction of the Environment and Public Works Committee. If, however, there is a provision in there that affects revenues, that bill is supposed to go to the Finance Committee. Suffice to say that the staff of the Environment Committee doesn't like that. The staff of all the other committees do not like that if they have a provision that might be scored is affecting revenues. They don't necessarily put a star, put stars around it. They'll let the parliamentarian find it if she's willing to spend the four or 5 hours going through every page in line.
Hannah McCarthy:
How so? How many bills does a parliamentarian have to go through line by line?
Alan Frumin:
A lot. All in all, the parliamentarian is responsible for referring probably 10 to 12000 items in any particular Congress. And virtually all of that plays out without any evidence on on the floor of the Senate. My point being silent killer, nobody sees that job being done. The committees are always jealous of their jurisdictions.
Nick Capodice:
And finally, the reason why Alan FRUMIN was in the media spotlight a lot and dubbed the most powerful person in Washington. The reason why law enforcement was sent to his house to protect him and his family in 2010. We've got a first talk about that uniquely senatorial action, the filibuster.
Hannah McCarthy:
I thought that was coming.
Nick Capodice:
Hannah. You want to break down the filibuster for everyone?
Hannah McCarthy:
I'll take a swing at it. Bills that come to the floor of the Senate for a vote require only a majority to pass. However, a bill can be debated endlessly until what is called cloture is invoked by 3/5 of the Senate, which means that, in essence, a bill does not pass unless it has the support of 60 people in the Senate. Yep.
Nick Capodice:
Well done. It's rule 22 in the Senate rules and nowadays you don't even see a bill get to the floor without that support, without those 60 votes. And senators rarely stand and talk for hours like Jimmy Stewart and Mr. Smith goes to Washington anymore. Somebody will listen to me. Sir. And as a result, very, very few bills get through the Senate. But. There is a special kind of bill, a bill that is not subject to the filibuster. It's called a reconciliation bill. It is a bill that deals with policies that change spending or revenues in the budget. So the budget bill can't be filibustered and neither can reconciliation bills that alter that budget.
Hannah McCarthy:
Okay. Well, if I were a senator who really wanted something passed, I would try to squeeze things into those reconciliation bills that maybe weren't related. So what stops a senator from doing that?
Nick Capodice:
Something called the Byrd Rule, named after Senator Robert Byrd in the 1980s. Things in those reconciliation bills and proposed amendments to them have to be what's called germane. They have to be about the budget. And if they're not about the budget, they have to be removed or that bill will be subject to the filibuster and probably won't pass. And guess who decides what is and is not allowed.
Hannah McCarthy:
Now I'm going to guess it's the Senate parliamentarian.
Nick Capodice:
Yeah, you got it.
Alan Frumin:
Determined Senate majorities over the years of both parties have always pushed the limits of what could be done in reconciliation bills because they recognize that these bills can be filibustered and that a simple majority is all that's needed to pass a reconciliation bill. Last night's ruling was extremely disappointing. It saddened me. It frustrated me. It angered me because so many lives are at stake. Senate Democrats have prepared alternative proposals, will be holding additional meetings with the parliamentarian in the coming days.
Nick Capodice:
That was Senate Majority Leader Chuck Schumer in 2021. There was a massive spending bill, and a component of that bill would have provided a path to citizenship for Dreamers.
Hannah McCarthy:
Dreamers being young, undocumented immigrants who were brought to the United States as children who currently have little to no pathway to citizenship.
Nick Capodice:
Absolutely. But Senate parliamentarian Elizabeth McDonough decided that part of the bill was not germane, meaning the Democrats had to take it out or the bill was going to be subject to a filibuster and not pass. And so the Democrats removed that Dreamers part.
Alan Frumin:
And in the middle of all of this is the dear parliamentarian who has always been a career civil servant, whose entire career is dedicated to serve the Senate in a non partizan capacity, who in essence is required to talk truth to power. Every decision the Senate parliamentarian makes, every consequential decision will anger some very powerful person every single time. And the parliamentarian is just doing our job.
Hannah McCarthy:
Can we go back to something you said earlier? What was the ruling that Alan made that resulted in those death threats?
Nick Capodice:
Yeah, it was related to the passage of the Affordable Care Act in 2010. The bill had gone through the House, it was in the Senate, and the GOP tried many procedural methods to kill that bill or make alterations to it because that would force it to go back to the House for another vote. Alan ruled against those. He was in newspapers and blogs everywhere, and the sergeant at arms informed him that as a result, members of the Tea Party had posted they were going to his house.
Hannah McCarthy:
It sounds like a really difficult and unique job.
Nick Capodice:
Yeah, it is. Alan said. It's not for everybody. These people aren't looking to get advancement to a more powerful role. They're not going to run for higher office or recorded by lobbying firms to make seven figure salaries. When they leave Congress, they make $172,000 a year. Their job is taxing, quiet and mostly unseen until they make a decision that drags them into the spotlight. Last thing, I can't let this episode end without an anecdote. Indeed, Allen did share a list of dozens of strange and wonderful and terrifying things he saw in his long tenure in the Senate, but none more bizarre than the porta potty incident.
Hannah McCarthy:
All right, I'll bite. What's the porta potty incident?
Nick Capodice:
Senator Lowell Weicker from Connecticut was on the floor.
Alan Frumin:
A correct language and historic occasion.
Nick Capodice:
And Senator Jesse Helms wanted him off the floor. And it's hard to get someone off the floor. You can't do that unless Weicker yielded and Weicker didn't yield.
Alan Frumin:
Senator Helms kept coming to the desk wondering if Weicker had violated this rule or that rule. Blah, blah, blah, blah, blah. And finally, Helms looked at me and said, Well, eventually he's going to need to he's going to need to go to the bathroom. And naturally, Weicker and his allies knew that as well.
Nick Capodice:
But there is a small provision in the rules that senators could have, quote, mechanical devices on the floor of the Senate. And Wicker's ally, New Jersey Senator Bill Bradley, knew about this provision.
Alan Frumin:
Senator Bradley came up to me and said, well, mechanical devices, Alan, what do you think of a porta potty? You know, if we can provide Weicker with some relief, so to speak, does that qualify under this provision? And I thought he was kidding. Bradley was about six, five or six, six, and he stood over me and said, Alan, I mean, it would I decided to do was pass the buck. And I've decided that that's up to the Senate. Sergeant at arms.
Nick Capodice:
The sergeant at arms was duly summoned. He went up to Senator Bradley and just said no.
Hannah McCarthy:
This whole thing is ridiculous.
Nick Capodice:
It's not over yet.
Alan Frumin:
Bradley wasn't deterred. He came and asked me about a can of tennis balls. I just said no.
Hannah McCarthy:
I never thought that civics of one would be a show where we talk about peeing in a tennis ball can, but things can go anywhere when it comes to American government. There you go.
Nick Capodice:
Like I said, the parliamentarian has a pretty unique job. That'll do it for Senate Parliamentarian. Point of order, Hannah. We got to get out of here. You guys are pretty funny, isn't it? Motion to adjourn. Alan, if you're hearing this, thank you so much. And I hope it didn't get anything wrong. This episode was made by me. Nick Capodice with you, Hannah McCarthy.
Hannah McCarthy:
Thank you. Thank you. Our staff includes Jackie Fulton. Christina Phillips is our senior producer and Rebecca Lovejoy is our executive producer.
Nick Capodice:
Music in this episode by a lot of the old favorites we know and love. Kevin McCloud, Konrad Olde Money Lovin Loco, Scott Holmes Maiden Pulitzer, Rachel Collier and the Greatest of All Time Chris Zabriskie.
Hannah McCarthy:
Civics one on One is a production of HPR New Hampshire Public Radio.
Nick Capodice:
All right, let's get out. Can you do a Jimmy Stewart?
Hannah McCarthy:
I don't know. Yeah. No, I can't.
Sarah Binder:
I can't do.
Nick Capodice:
It. That was good. That was a good try. Least you tried. I'm going to try it. There's a movement to colorize films, and it's not the intent. That sounds a little weird. No. Sounds like Kennedy ish. Sounds like Buffalo Bill.
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senate parliamentarian final.mp3
Archival: Is it the contention of the Chair that under the rules of the Senate, I am not allowed to accurately describe public views of Senator Sessions.
Nick Capodice: Hannah, I want to play this clip from February of 2017.
Hannah McCarthy: Sure. Go ahead.
Nick Capodice: Senator Elizabeth Warren is found in violation of Senate Rule 19 and is being cautioned by the chair.
Archival: The chair has not made a ruling as respect to the senator's comments. The senator is following process [00:00:30] and tradition by reminding the center of Massachusetts of the rule.
Nick Capodice: Standard procedural stuff. Right. But I cut something out. This is what it really sounded like.
Archival: The chair has not made a ruling as respect to the Senator's comments.
Archival: Following process and tradition.
Archival: The Senator is following process and tradition.
Archival: Reminding the Senator from.
Archival: By reminding this.
Hannah McCarthy: Wait, someone is just feeding him lines. This is happening in the Senate?
Nick Capodice: It happens every day [00:01:00] in the Senate.
Nick Capodice: So I've read a few articles about you, and people tend to refer to you in sports metaphors like you're a referee or an umpire. Is that accurate? Is it like that?
Alan Frumin: Yes. Yes, it's like that.
Hannah McCarthy: Who's that?
Nick Capodice: That is Alan Frumin. I know we've had a lot of guests over the years who know an awful lot about how things work in Washington. But when it comes to the Senate, Allen beats [00:01:30] them all. And he would never say that he is a humble man. But it's true because knowing the intricacies of the Senate was his job for 35 years.
Hannah McCarthy: What was his job?
Archival: JWell, we've got breaking news tonight. The Senate parliamentarian has denied Senate Democrats attempt to include a $15 an hour minimum wage..
Archival: Senate needs to step up override the parliamentarian. The parliamentarian is not elected.
Archival: Big [00:02:00] news and it is big news, the Senate parliamentarian says. Only one new budget resolution and one reconciliation package. That's it.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we're talking about a position that has been referred to as, "the most powerful person in Washington," the Senate parliamentarian.
Hannah McCarthy: Are you trying to tell me that the person whispering in the chair's ear is more powerful than the speaker of the House [00:02:30] or the Senate majority leader or the president? Are you serious?
Nick Capodice: Maybe I'm being a bit hyperbolic. That line was from a Politico article about the current Senate parliamentarian Elizabeth McDonough. And I will get into why McDonough has claimed to hold so much power right now a little bit later.
Hannah McCarthy: All right. First off, can you tell me what the Senate parliamentarian does.
Alan Frumin: At the risk of sounding conceited? The Senate parliamentarian is the de facto presiding officer of the Senate.
Nick Capodice: The [00:03:00] presiding officer is the person who sits in the chair of the Senate and rules on everything, who can speak, who can interrupt somebody speaking, what someone speaking can and cannot say. They rule on every point of order. Points of order are basically objections to what someone else is saying or doing.
Hannah McCarthy: Oh wait. I thought that the Vice President was the presiding officer in the Senate.
Nick Capodice: Yes, technically they are. But when the veep is not around, which is pretty much all the time, the most senior member of [00:03:30] the majority sits in the chair. And Alan told me most of the time Senators don't want to be in the chair ruling on things. They want to be down there doing senator stuff. Now, to be clear, the parliamentarian doesn't sit in the chair, but they tell the person in the chair what they should do.
Sarah Binder: They make decisions. They give advice based on past episodes of confusion.
Nick Capodice: This is Sarah Binder. She's a professor of political science at George Washington University.
Sarah Binder: I teach [00:04:00] Congress. It's the only thing I know anything about. So if you look at the Constitution, it says Article one, Section five. The House and Senate will make their own rules if you have the power to make your rules. You also have the power to apply your rules. And that's the point at which the parliamentarians in the House and the Senate come to play a role. They are supposed to be the non partisan, neutral [00:04:30] expert arbiter of how to apply the rules. And it sounds like, well, that's not hard. However, if you look at the rules of the House and you look at the rules of the Senate, they don't actually tell you what to do and how to apply them in every single circumstance.
Hannah McCarthy: The House has a parliamentarian too?
Nick Capodice: It does. And while I am focusing on the Senate parliamentarian for this episode, the parliamentarians in both chambers of Congress are the ones who know the rules and they advise [00:05:00] the Presiding Officer on what to do in any given situation. Now, Hannah, do you know what dictates the rules of the Senate?
Hannah McCarthy: I'm pretty sure it's something that people use in like student council and community meetings. It's Robert's Rules of Order, right?
Nick Capodice: Yeah, I thought so too. But I was wrong and don't feel bad. Even some senators thought the same thing.
Alan Frumin: Laypeople assume and one or two senators elect had assumed that the Senate used Robert's Rules of Order. And I would suggest to people that, [00:05:30] okay, if you are familiar with Roberts Rules of Order, you probably know that Colonel Robert first published him, I believe, in 1876, which would then beg the question, how did the Senate muddle through from 1789 until 1876, before Colonel Roberts saved them, which he didn't do, of course?
Hannah McCarthy: If they don't use Robert's Rules of Order, what do they use?
Nick Capodice: They use their own rules. They make them and they update them every few years. [00:06:00] The most recent rules and manual of the Senate is from 2013 and comprises 44 rules.
Alan Frumin: Point being that the Senate is a self-governing body that operates by its own rules and precedents. Nobody is familiar with them coming into the Senate. And smart senators recognize right away that the rules of the road in the Senate are unique to the body, and some of them will set out in various ways to become knowledgeable. [00:06:30]
Hannah McCarthy: How complicated are those 44 rules?
Nick Capodice: Fairly complicated. I tried to read it. You're looking at basically a dense 80 pages of procedure. Honestly, I would have a really tough time learning them if I was to spend a day in the Senate. But those 80 pages are the absolute tip of the iceberg.
Sarah Binder: So here's the thing. There were what we call precedents. So the House might decide something or Senate might decide something, and some of them might have scratched it down on a piece of paper. And there might there was a clerk at [00:07:00] the front on the dais, and they usually reported to the speaker or to the presiding officer. But basically there was no written, right? There are no really compilations of precedents. So neither the House or Senate really knew the members didn't know what to do in any new circumstance. So there were lots of appeals, lots of points of order. Hey, stop. I raise a point of order. That's not how this works.
Archival: For what purpose does the gentleman from New York or Mr. Speaker, I rise to a point of order. A gentleman [00:07:30] will state his point of order. Speaker, I object to consideration of this bill because it. violates rule.
Sarah Binder: And they'd arbitrate. There'll be lots of votes on the floor.
Nick Capodice: But those decades of precedents, often written on little slips of paper, have been collected and compiled into an official manual. Allen helped edit it. It's called Redux, Senate Procedure, Precedents and Practices, and that's 1608 pages.
Hannah McCarthy: So the parliamentarian is the one who knows all of this stuff. They [00:08:00] advise whomever is the presiding officer in the Senate.
Nick Capodice: Right.
Hannah McCarthy: How did they do that physically, though?
Nick Capodice: Well, to explain this, Alan showed me a photo of where everyone on the Senate dais sits.
Alan Frumin: There's the Senate floor. Unfortunately, my fat head is in the way. There are four chairs across the secretaries desk, journal clerk, parliamentarian, legislative clerk and bill clerk. There are other chairs behind. There is a chair for the Secretary of the Senate. There's a chair for the sergeant at arms. So. So [00:08:30] this is the parliamentarian's battle station. It's a swivel chair. It's a swivel chair that rocks. I have seen it go over once, before television. That was quite a scene. And in essence, what the parliamentarian does is she swivels and speaks to the presiding officer up here. The presiding officer's mic has a mute switch. It's a spring activated mute switch. The parliamentarian can press and hold if she wants to mute the microphone so [00:09:00] that the conversation between the parliamentarian and presiding officer is not public.
Nick Capodice: I asked Alan if the parliamentarian is just swiveling back and forth all day, and he said that was pretty accurate.
Hannah McCarthy: Is this job anywhere in the Constitution?
Nick Capodice: No, it is not. The job was created in 1935 during FDR's New Deal Era.
Alan Frumin: when Roosevelt and his administration became a little more proactive legislatively. And Roosevelt's vice president [00:09:30] had other things to do than sit on the dais of the Senate and preside. And so the Senate decided that they needed somebody to be the repository of the various interpretations of the Senate's rules. And they selected a man named Charles Watkins who had first come to the Senate in 1904.
Nick Capodice: Charles Watkins. He started out as a stenographer in 1904 in the Senate. He moved up to a journal clerk. That's the person who takes the minutes [00:10:00] of what happens all day, every day in the Senate. And the job of parliamentarian was created for him in 1935, and he was good at it. He had a remarkable memory. He was considered completely non partial to either party. And before the microphone mute button existed, Watkins would spin around in his chair and whisper to the presiding officer hundreds of times a day, and as a result, a newspaper called him, quote, the Senate's ventriloquist. And he held [00:10:30] the job until he retired in 1964.
Hannah McCarthy: So 60 years.
Nick Capodice: 60 years! And the next parliamentarian, he had worked with Watkins.
Sarah Binder: My daughter once asked me like, how do you get to become the Senate parliamentarian? And I somewhat flippantly said, Well, first you have to be the assistant parliamentarian, but it turns out to be generally true that they hire from within.
Nick Capodice: Allen came in this way. He had been the assistant parliamentarian.
Sarah Binder: Why is that [00:11:00] important? It helps to limit the partisanship, right? Because they they get first of all, they get socialized into the practice of being the parliamentarian. And it's a source of expertise.
Alan Frumin: It's always been the model and it's the only appropriate model.
Nick Capodice: Alan told me in the office of the parliamentarian, you want to have assistants spaced out generationally. So when someone leaves office, the next person can be there a long time. And to this date there have been six [00:11:30] and only six Senate parliamentarians.
Hannah McCarthy: And Sarah says the job requires limited partisanship, which honestly is something that feels nearly impossible here in 2022. Can a parliamentarian be truly nonpartisan?
Nick Capodice: From what I can gather, parliamentarians just might be among the most nonpartisan people in Washington, D.C. And I say that because their rulings help both sides and they [00:12:00] take heat from both sides as a result. And let me give you an example. One parliamentarian, Robert Dove, was dismissed by Democratic Majority Leader Robert Byrd and was replaced by Alan Frumin. And then Robert Dove was reappointed again a few years later and then fired and replaced by Alan again, but this time by Republican Senate Majority Leader Trent Lott.
Hannah McCarthy: What did Dove do that caused so much controversy?
Nick Capodice: Well, that is related to the powers of the Senate parliamentarian that we haven't gotten [00:12:30] into. The reason why they have been named the most powerful people in America, so powerful that at one point Alan and his family received death threats. And all that's coming up after the break here on Civics 101.
Hannah McCarthy: But first, when Nick was researching for this episode, he sent me this list. It was the 56 things that they don't teach you at parliamentary school that Alan had sent him. And he promises he will include selections of that list in next week's [00:13:00] newsletter. And you can subscribe to get that free and fun newsletter that comes out every two weeks at the top of our website, civics101podcast.org.
Hannah McCarthy: We're back. We're talking about the Senate parliamentarian. Let's get into why this job is so powerful.
Nick Capodice: Yeah, this is maybe the reason why we've gotten so many requests from listeners to do an episode on this. Two specific facets of the position [00:13:30] that result in some senators getting very, very frustrated. Number one committee assignments. Here's Sarah Binder again.
Sarah Binder: This one's a little less noticed about the parliamentarian, but the bulk of the work is actually deciding when a bill is introduced which committee gets the bill. That's a power of the speaker and it's a power of the presiding officer and the rules. But [00:14:00] a norm of practice is that the parliamentarian makes those decisions and those decisions can be pretty consequential.
Hannah McCarthy: So even though deciding which committee gets a bill is technically the power of the presiding officer of the Senate, the parliamentarian is the one really making the call.
Nick Capodice: Yeah. Every time. And since most bills die in committee, senators care a great deal about which committee they go to. You can work on a bill for months in advance before [00:14:30] you write it, meeting with members of a committee beforehand to make sure it goes through and at the last minute find out it's going to go somewhere else. Here is former parliamentarian Alan Frumin again.
Alan Frumin: You can have a thousand page bill dealing with environmental remediation, all of this material in the jurisdiction of the Environment and Public Works Committee. If, however, there is a provision in there that affects revenues, that bill is supposed to go to the Finance Committee. Suffice to say that [00:15:00] the staff of the Environment Committee doesn't like that. The staff of all the other committees do not like that if they have a provision that might be scored is affecting revenues. They don't necessarily put a star, put stars around it. They'll let the parliamentarian find it if she's willing to spend the four or 5 hours going through every page in line.
Hannah McCarthy: Wow, so how many bills does a parliamentarian have to go through line by line?
Nick Capodice: A lot.
Alan Frumin: All [00:15:30] in all, the parliamentarian is responsible for referring probably 10 to 12000 items in any particular Congress. And virtually all of that plays out without any evidence on on the floor of the Senate. My point being silent killer, nobody sees that job being done. The committees are always jealous of their jurisdictions.
Nick Capodice: And finally, the reason why Alan Frumin was in the media spotlight a lot and dubbed the most powerful person [00:16:00] in Washington. The reason why law enforcement was sent to his house to protect him and his family in 2010. We've got a first talk about that uniquely senatorial action, the filibuster.
Hannah McCarthy: I thought that was coming.
Nick Capodice: Hannah. You want to break down the filibuster for everyone?
Hannah McCarthy: I'll take a swing at it. Bills that come to the floor of the Senate for a vote require only a majority to pass. However, a bill can be debated endlessly until what is called cloture [00:16:30] is invoked by 3/5 of the Senate, which means that, in essence, a bill does not pass unless it has the support of 60 people in the Senate.
Nick Capodice: Yep! Well done. It's rule 22 in the Senate rules and nowadays you don't even see a bill get to the floor without that support, without those 60 votes. And senators rarely stand and talk for hours like Jimmy Stewart and Mr. Smith goes to Washington anymore.
Archival: Somebody will listen to me. Somebody!
Nick Capodice: And [00:17:00] as a result, very, very few bills get through the Senate. But. There is a special kind of bill, a bill that is not subject to the filibuster. It's called a reconciliation bill. It is a bill that deals with [00:17:30] policies that change spending or revenues in the budget. So the budget bill can't be filibustered and neither can reconciliation bills that alter that budget.
Hannah McCarthy: Okay. Well, if I were a senator who really wanted something passed, I would try to squeeze things into those reconciliation bills that maybe weren't related. So what stops a senator from doing that?
Nick Capodice: Something called the Byrd Rule, named after Senator Robert Byrd in the 1980s. Things in those reconciliation [00:18:00] bills and proposed amendments to them can’t be what’s called “extraneous” . They have to be about the budget. And if they're not about the budget, they have to be removed or that bill will be subject to the filibuster and probably won't pass. And guess who decides what is and is not allowed.
Hannah McCarthy: Now I'm going to guess it's the Senate parliamentarian.
Nick Capodice: Yeah, you got it. Alan told me that extraneous material removed from reconciliation bills under the advice of the parliamentarian is lovingly referred to as "Byrd droppings." Seriously.
Alan Frumin: Determined Senate majorities over the years of both parties [00:18:30] have always pushed the limits of what could be done in reconciliation bills because they recognize that these bills can be filibustered and that a simple majority is all that's needed to pass a reconciliation bill.
Archival: Last night's ruling was extremely disappointing. It saddened me. It frustrated me. It angered me because so many lives are at stake. Senate Democrats have prepared alternative proposals, will be holding additional meetings with the parliamentarian [00:19:00] in the coming days.
Nick Capodice: That was Senate Majority Leader Chuck Schumer in 2021. There was a massive spending bill, and a component of that bill would have provided a path to citizenship for Dreamers.
Hannah McCarthy: Dreamers being young, undocumented immigrants who were brought to the United States as children who currently have little to no pathway to citizenship.
Nick Capodice: Absolutely. But Senate parliamentarian Elizabeth McDonough decided that part of the bill was not germane, meaning the Democrats had to take it out or the bill was going to be [00:19:30] subject to a filibuster and not pass. And so the Democrats removed that Dreamers part.
Alan Frumin: And in the middle of all of this is the dear parliamentarian who has always been a career civil servant, whose entire career is dedicated to serve the Senate in a non partisan capacity, who in essence is required to talk truth to power. Every decision the Senate parliamentarian makes, every consequential decision will anger some very [00:20:00] powerful person every single time. And the parliamentarian is just doing her job.
Hannah McCarthy: Can we go back to something you said earlier? What was the ruling that Alan made that resulted in those death threats?
Nick Capodice: Yeah, it was related to the passage of the Affordable Care Act in 2010. The bill had gone through the House, it was in the Senate, and the GOP tried many procedural methods to kill that bill or make alterations to it because that would force it to go back to [00:20:30] the House for another vote. Alan ruled against those. He was in newspapers and blogs everywhere, and the sergeant at arms informed him that as a result, members of the Tea Party had posted they were going to his house.
Hannah McCarthy: It sounds like a really difficult and unique job.
Nick Capodice: Yeah, it is. Alan said it's not for everybody. These people aren't looking to get advancement to a more powerful role. They're not going to run for higher office or recorded by lobbying firms to make seven figure [00:21:00] salaries. When they leave Congress, they make $172,000 a year. Their job is taxing, quiet and mostly unseen until they make a decision that drags them into the spotlight.
Nick Capodice: Last thing, I can't let this episode end without an anecdote. Indeed, Alan did share a list of dozens of strange and wonderful and terrifying things he saw in his long tenure in the Senate, but none more bizarre than the porta potty [00:21:30] incident.
Hannah McCarthy: All right, I'll bite. What's the porta potty incident?
Nick Capodice: Senator Lowell Weicker from Connecticut was on the floor.
Archival: a..I'll correct my language, an historic occasion.
Nick Capodice: And Senator Jesse Helms wanted him off the floor. And it's hard to get someone off the floor. You can't do that unless Weicker yielded and Weicker didn't yield.
Alan Frumin: Senator Helms kept coming to the desk wondering if Weicker had violated this rule or that rule. Blah, [00:22:00] blah, blah, blah, blah. And finally, Helms looked at me and said, Well, eventually he's going to need to he's going to need to go to the bathroom. And naturally, Weicker and his allies knew that as well.
Nick Capodice: But there is a small provision in the rules that senators could have, quote, mechanical devices on the floor of the Senate. And Wicker's ally, New Jersey Senator Bill Bradley, knew about this provision.
Alan Frumin: Senator Bradley came up to me and said, well, mechanical devices, Alan, what do you think of a porta potty? [00:22:30] You know, if we can provide Weicker with some relief, so to speak, does that qualify under this provision? And I thought he was kidding. Bradley was about six, five or six, six, and he stood over me and said, Alan, I mean, it would I decided to do was pass the buck. And I've decided that that's up to the Senate Sergeant at arms.
Nick Capodice: The sergeant at arms was duly summoned. He went up to Senator Bradley and just said no.
Hannah McCarthy: This whole thing is ridiculous.
Nick Capodice: It's not [00:23:00] over yet.
Alan Frumin: Bradley wasn't deterred. He came and asked me about a can of tennis balls. I just said no.
Hannah McCarthy: I never thought that civics 101 would be a show where we talk about peeing in a tennis ball can, but things can go anywhere when it comes to American government. There you go.
Nick Capodice: Like I said, the parliamentarian has a pretty unique job.
Nick Capodice: That'll [00:23:30] do it for Senate Parliamentarian. Point of order, Hannah. We got to get out of here. pretty funny, isn't it? Motion to adjourn. Alan, if you're hearing this, thank you so much. And I hope it didn't get anything wrong. This episode was made by me. Nick Capodice with you, Hannah McCarthy. Thank you.
Hannah McCarthy: Thank you. Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer.
Nick Capodice: Music in this episode by a lot of the old favorites we know and love. [00:24:00] Kevin McCloud, Konrad OldMoney, Lobo Loco, Scott Holmes, Myeden, ProletR, Rachel Collier and the Greatest of All Time Chris Zabriskie.
Hannah McCarthy: Civics 101 is a production of NHPR New Hampshire Public Radio.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
We're revisiting the origins of United States government and rights.
Long before we could decide and insist upon what they mean to us, a handful of powerful men had to put pen to paper. We're revisiting two episodes from our Foundational Documents series: The Constitution and The Bill of Rights. This is the story of how these now-indispensable documents came to be during a time when independence and unity was new and highly vulnerable.
Our understanding and interpretation of these documents has grown and changed in the hundreds of years since they were ratified and in the three years since these episodes were released. Take some time to get reacquainted. Understanding how and why we work is a lifelong practice here at Civics 101.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
Be it suspicion of voter fraud, fear of hackers or the general belief that something is amiss, legislators across the country have passed election laws designed to make our elections more secure. Those very same laws are widely criticized for making voting less accessible, especially to certain voting groups. So how insecure are our elections? What do election security laws really do? What is the best way to feel better about the state of elections in this country?
Our guests are Jessica Huseman, Editorial Director of Votebeat and Justin Levitt, constitutional law professor and newly appointed White House Senior Policy Advisor for Democracy and Voting Rights.
Hannah McCarthy: [00:01:10.82] A couple of years ago, most people were a little iffy on what Jessica Hughes men did for a living.
Jessica Huseman: [00:01:16.43] You know what, I would go to parties and be like, I cover voting. People would be like, what does that even mean? Like campaigns? And I'm like, No.
Hannah McCarthy: [00:01:23.72] Jessica, by the way, is the editorial director of Vote Beat. It's a nonprofit newsroom that covers voting and elections across the country. Anyway, fast forward to Jessica at a party today
Jessica Huseman: [00:01:34.67] And now I go, and they're like, Let's talk about Dominion Voting Systems, and I'm like, This is incredibly different than it was even a year ago, so it's fascinating.
Hannah McCarthy: [00:01:49.98] So what happened? Why are all these party people suddenly very interested in voting machine companies?
Archival: [00:01:55.47] Georgia unveiling new voting machines statewide Right in the midst of a pandemic.
Archival: [00:01:59.16] This nation has been victimized by rampant election fraud in the past...
Archival: [00:02:03.93] The Johnson County sheriff says that he is using county resources to investigate claims of election fraud.
Archival: [00:02:09.61] Will everyone's vote count. Are the ballots secure? Those are two big questions. As Americans head to the polls today. President Trump is raising fears of voter fraud overnight. As Mary said, despite no evidence of widespread violations, critics say he's trying to suppress the vote.
Hannah McCarthy: [00:02:34.54] These days, we are all paying a lot more attention to election security, and that is exactly what this episode is about. This Civics 101, I'm Hannah McCarthy.
Nick Capodice: [00:02:44.02] I'm Nick Capodice.
Hannah McCarthy: [00:02:45.07] And today we're answering a listener question, something that I dearly love to do. This one comes from Ben Muell. What does Ben want to know, Nick?
Nick Capodice: [00:02:51.97] All right. Ben sent an email saying that voter fraud and election security have dominated the headlines in the last two elections. This is true, Ben. And he says quote, as a result, they are being used to justify changing laws which have real world consequences. I feel this would be an excellent addition to your podcasts, since there's a whole bunch of misinformation out there right now and reliable sourced content. Discussions on these topics are paramount.
Hannah McCarthy: [00:03:16.84] Couldn't agree more. Ben Jessica thinks so, too.
Jessica Huseman: [00:03:19.30] Really good coverage of voting systems is only going to increase over the next couple of years, especially now that there's such a public awareness of these issues and people are asking questions about them in a way that they just didn't even two years ago.
Nick Capodice: [00:03:33.22] Can I hazard a guess as to what changed two years ago?
Hannah McCarthy: [00:03:36.04] Yeah, go for it.
Nick Capodice: [00:03:36.79] Well, for starters, many people, including the president at the time, falsely claimed that the election was fraudulently won. If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us. And Americans at that point were already primed for fraud after Russian meddling in the 2016 elections.
Archival: [00:04:03.94] 13 Russian nationals and three entities have been indicted for meddling in the 2016 presidential election
Nick Capodice: [00:04:10.81] And swirling in the midst of all of this. Are all these false claims of rigged voting machines and ballots being tampered with and dead people voting.
Archival: [00:04:19.90] You've likely seen the claim online dead people in both Pennsylvania and Michigan voting in the presidential election. But did that really happen? Good question. According to election officials, there is no proof of that.
Nick Capodice: [00:04:31.24] And so now you've got states across the country passing laws to ostensibly make their elections quote more secure. Or as some people see it, to make voting harder.
Hannah McCarthy: [00:04:42.70] Great. Ok, so right off the bat, I am going to give you my big takeaway about election security. This is after talking to some real experts, OK? Like every level of election security in the United States, the bark is worse than the bite, but the bark hurts.
Jessica Huseman: [00:05:00.29] You know, there was just this huge amount of misinformation around the certification of Electoral College votes and audits and all of the security procedures that happen after elections to make sure that the results are recorded as intended. That confounds people and like they just don't understand the mechanics of how elections are audited or what the security procedures are around them. And so because they don't know about any of that, it is very easy to convince someone that voter fraud is a problem because they have a very limited understanding of it. They have voted probably without a problem. And like can imagine a situation in which somebody goes in lies about their identity and votes somebody else's ballot, right? If they don't understand how difficult that actually is to do procedurally, it's very easy to convince somebody that it's easy to do.
Hannah McCarthy: [00:05:51.13] Let's tackle voter fraud first. The supposedly widespread and organized menace that is believed to steal elections across the country.
Justin Levitt: [00:06:00.01] Voter fraud does occasionally happen.
Hannah McCarthy: [00:06:05.08] This is Justin Levitt, constitutional law professor and newly appointed White House senior policy adviser for democracy and voting rights
Justin Levitt: [00:06:12.76] In plenty of elections in one off handful of occasions. That is, there is every once in a very long while an act of misconduct by an individual voter and that's validated and in municipal elections every once in a very long while. Occasionally, you get a more concerted effort to try and steal an election, usually in a small town or a county in different parts of the country. It happens in different ways, but those are pretty rare. The important thing to know in distinguishing real actual incidents of voter fraud from wild hand-waving in all caps exclamation point claims is that real voter fraud is based on breaking the law in some way. Often in a way that's not designed to steal an election, somebody will fill out their spouses ballot not because they want to steal an election, just because they want to control what their spouse does. Or somebody will fill out a ballot in the name of a deceased relative, not because they want to control what that person does, but because they want to effectuate their last wishes.
Nick Capodice: [00:07:20.32] All right. So to restate Justin's point, this idea of widespread, nefarious voter fraud, it's just not a thing.
Hannah McCarthy: [00:07:26.83] Not a thing. Actual incidents are incredibly rare and most are not done. To attempt to steal or rig anything more often than not, the actual thing that's going on is misunderstanding
Justin Levitt: [00:07:40.10] The way to distinguish these real incidents from hot takes. That turn out to be fiction is to find real facts that show real wrongdoing against real law. And unfortunately, all too often what we hear are claims of voter fraud that are based in. I don't like people who don't think like I do voting or that seems fishy to me, but I don't really understand how the rules of the elections work. And it's real easy to jump really quickly in a conspiratorial mindset from this seems strange, but I don't understand. To that must be fraud, so people have to be pretty careful if they want to actually do their homework. And distinguishing the real occasional incidents doesn't happen very often from the wild claims in looking through. Ok, what's the actual allegation? Who actually did what? And most important is that thing illegal?
Hannah McCarthy: [00:08:36.92] Speaking of homework, I did some or rather I copied a friend's. The Brennan Center for Justice released a report on voter fraud that found that the actual rate of someone pretending to be someone else and casting a ballot is between 0.0003- and 0.0025-percent. Still, when allegations happen, researchers and journalists put a lot of work into attempting to verify the alleged widespread voter fraud and tend to come up with no more than a handful of cases out of billions of votes cast. In fact, a Columbia professor found that most claims of voter fraud can be traced back to quote the loser of a close race, mischief and administrative or voter error.
Nick Capodice: [00:09:22.61] So voter fraud does happen, but it's usually like a one off kind of thing. And most importantly, you're saying it doesn't affect the outcome of an election.
Hannah McCarthy: [00:09:31.97] There just isn't enough of it. There are not nearly enough cases of fraud or mistakenly cast ballots to make a dent in election results. So is it important that we protect our elections against illegal fraud? Of course. Are we suffering from widespread fraud? No. So that takes care of the dead people voting and the purposeful fraud and the stealing of the elections. But that other little problem you mentioned Russian meddling. Here's Jessica again.
Jessica Huseman: [00:10:05.40] Russia intervened in the 2016 election and and, you know, did not necessarily get access to the election technology that we're talking about here, right? They fiddled around with the Illinois election registration system, but ultimately didn't do any damage. There were a couple of breached portals here or there, but no evidence and we would see it that they changed votes or materially impacted the registration systems that they got access to. And one of the reasons that they failed is because of that diffuse network of of security.
Hannah McCarthy: [00:10:40.78] We'll talk more about this in a minute. But what Jessica means here is that you've got 50 different states with many, many counties and many, many layers of election security. There is no one United States election security wall. Voila! Diffuse security.
Jessica Huseman: [00:11:00.16] But right, they didn't need to succeed in actually harming the system in order for the system to be harmed by perception. And so, you know, the misinformation, the manipulation of social media around specific facts very much related to election integrity issues and claims around voter fraud and claims around manipulation of the machines, right? Their motivation is not necessarily to actually infiltrate the machines, but just to cause chaos.
Nick Capodice: [00:11:30.55] What's interesting to me and is that it sounds like Justin and Jessica, they're kind of talking about the same thing here. Justin is saying that there is very little actual voter fraud. And Jessica is saying Russia failed to actually tamper with votes, but election interference did happen in a way. Those claims of fraud and tampered with voting machines mean that people don't believe their elections are secure,
Hannah McCarthy: [00:11:54.67] And when people don't believe their elections are secure, lawmakers step in.
Archival: [00:11:59.20] We're now in a major election year with the 2022 midterms this fall. But before voters head to the polls, state legislatures may be changing how you vote...
Archival: [00:12:06.52] Today
Archival: [00:12:08.32] in Texas, Election integrity is now law in the state of Texas.
Archival: [00:12:13.94] Governor Greg Abbott signing some of the most sweeping voting restrictions in the country.
Nick Capodice: [00:12:18.32] We must have trust and confidence in our elections. Republicans say verifying identity will make voting more secure when voting in person in the state of Georgia. You must have a photo ID.
Justin Levitt: [00:12:30.14] You want to make sure that everyone has the ability in the right to exercise the franchise.
Nick Capodice: [00:12:34.70] But we also want to make sure that everyone has confidence in
Justin Levitt: [00:12:38.15] The process and they respect the
Nick Capodice: [00:12:40.16] Results and that's what these laws are designed to
Hannah McCarthy: [00:12:42.41] Do. Here's Justin again.
Justin Levitt: [00:12:44.33] Sometimes some of the policies are actually designed to address the types of fraud that are alleged. Sometimes they're just not OK.
Hannah McCarthy: [00:12:51.98] So in the past year alone, at least 27 states have filed bills that include restrictive voting measures. Now, on the other side of that coin are the state legislatures that have filed bills to expand access to the polls that's happened in at least thirty two states. But if we are talking about election security, we tend to be talking about restrictions, restrictions that are typically predicated on incorrect claims of in-person and mail and voter fraud and election interference.
Nick Capodice: [00:13:20.72] And just to be clear, those provisions do make voting more difficult. Do they not?
Justin Levitt: [00:13:24.89] Well generally find that where you can have increased security without that trade off of access or other things, we like that there's pretty uniform agreement in having that security. Nobody, I think, is against making voter registration databases more secure against hacking. I think you'll find widespread bipartisan agreement that that's a good thing because there's no real downside
Hannah McCarthy: [00:13:48.47] To doing that. There are, however, plenty of new rules in the name of security that do have some major downsides.
Justin Levitt: [00:13:56.57] The fights only come up when there's a downside to increasing security, and that is the notion that you might be leaving other eligible Americans out of the process and the vast majority of time we have fights over election policy. It's not about whether to have a policy or not, but what type of policy to have. Just like the fight about taxes, the question isn't are we going to have taxes? It's what get taxed at what rate, not yes or no. So the fight over things like, for example, presenting ID at the polls, every state has some means to make sure that you are who you say you are when you go to vote. Every single one. The question isn't should we have a way to prove that you are who you say you are? The question is what kind of things should we permit in order to make sure that the election system is reasonably secure, while also making sure that we are not unreasonably locking out eligible voters? And it's in that context that you can find all caps hand-waving about voter fraud does some real damage in skewing the perceived costs and benefits
Hannah McCarthy: [00:15:01.76] That damage looks like, for example, voters being negatively and often disproportionately affected. For example, black eligible voters are statistically less likely than white eligible voters to have a government-issued photo ID. So if they live in a state where that is a requirement in order to vote, there is a direct barrier to voting.
Justin Levitt: [00:15:27.12] So what's the right way to think about this in any enterprise and voting is only one of them? I think policy comes down to costs and benefits. You can always get more secure, but at a certain point you begin to trade off a lot of other things you value. I'm talking to you now from a room with a window and you're talking to me in rooms with windows and somebody could take a shot at you through that window. But you haven't bricked in your wall yet because that extra measure of security isn't worth the trade off. You like the window being there and you value what it presents, and so an extremely low risk that something might happen through that window isn't worth bricking it in. That's the sort of trade off that legislators make all the time in all kinds of arenas. It also works for election policy, or at least that's the way the notion should be.
Nick Capodice: [00:16:15.74] All right. So Hanna, when I think of bricking unnecessary walls, the first thing that comes to mind because it was all over the news is the recent election security law in Georgia. But opponents say it will discourage turnout by elderly, poor and minority voters who tend not to have government IDs. The law also bans the use of ballot drop boxes outdoors or after business hours cuts down on early voting and runoff elections allows the state legislature to take over local election boards and makes it a crime to provide food or water to people standing in line at the polls, like banning people from handing out food and water to people in line. Is that a necessary wall?
Hannah McCarthy: [00:16:54.51] Well, the lawmakers who wrote it would say yes. This stops people from interfering with voters while they're waiting in line. Basically, it's a provision to prevent electioneering. Food and water has to be at least one hundred and fifty feet from the polling place and 25 feet from the line kind of like campaign signs. But it's not just this right. People say that will make voting harder, and the law also has a bunch of other provisions that seem to many like they will get between the voter and the polls. And Jessica Hussman has been having a lot of conversations about this lately.
Jessica Huseman: [00:17:26.13] Like I have been in more arguments about the Georgia law, like the voting law that passed in Georgia this last legislative session than I ever have, because the first version of that bill was horrific. But what actually passed had like this horrible disenfranchizing thing. It was just sort of like a law and like won't really impact the vast majority of people who go cast a ballot in Georgia. And so I just think like, yes, like, was that a stupid law to pass? Yes, it was. But the law also requires that polling locations that have really long lines split from each other and tracks wait times like, I mean, nobody is going to be falling over from thirst in line in November in Atlanta. It's just not going to happen. It's not suppression and like the straight up sense of the word.
Hannah McCarthy: [00:18:18.33] So I think this is a really interesting point. Are the provisions in this bill explicit voter suppression? No. Are they going to result in fewer people voting? Possibly. This bill also includes a new voter ID provision. It prevents election officials from mailing absentee ballots to all voters. It closes mobile polling places to Jessica's point. Is it the end all be all of disenfranchisement law? No, but a combination of those trade offs that Justin mentioned and the perception of this law as an end all be all kind of thing can and likely will get in the way of people voting. And remember what is behind all this widespread misconceptions about how insecure our elections are? If enough people believe in something regardless of whether or not it's true, lawmakers will seize on that opportunity to politicize it.
Jessica Huseman: [00:19:16.98] I think that one reason that elections are so easy to politicize is because they're so complicated, right? And and they don't necessarily have to be right, but it is a system that people only rarely interact with, right? Like if you're talking about your average voter who votes like, we're talking about a person who spends 30 minutes doing this thing once every four years and like, if we're lucky, once every two right, but mostly once every four years. And so if you are a voter who only engages with that system for half an hour, right? We're talking about like less like on average, eight minutes a year, right? Like, this is not a thing that people think deeply about all the time. It's not like, you know, having a discussion over public schooling because you send your kids to school every day and you're deeply engaged with that and you know about it because it affects your life on a daily basis. Voting is not that thing, right? Like, voting only affects your life on the day that you do it. And so it's reasonable to me that most people don't know a lot about how the system works. But the media, I think, and the counties need to do a better job educating voters, not just about how. Cast their ballot, but what happens after it's cast?
Hannah McCarthy: [00:20:29.61] That's right, folks, you have inadvertently stumbled into yet another episode that will tell you that the best way to make this country work for you is to work for information. But we are making it easy by giving you as much of that information as we can in this very episode. We're here to banish all kinds of insecurity after the break.
Nick Capodice: [00:20:47.31] But first, your weekly reminder that Civics 101 depends on listener support to operate, contribute in whatever amount fits your budget at our website civics101podcast.org.
Hannah McCarthy: [00:21:13.46] Welcome back to Civics 101, we're talking election security
Nick Capodice: [00:21:16.94] And Hanna, we've been talking about the reasons that people think American elections are insecure, like false claims of widespread voter fraud. And we've also been talking about the fact that those reasons aren't really cause for concern because, for example, there's very little actual voter fraud, but a lot of states are passing laws to address those reasons anyway. And laws that make elections more secure also tend to make elections harder to access, especially for certain groups of people. But both Jessica Hussman and Justin Levitt have said, well, if people only knew the truth, they'd feel better. So what exactly is the truth?
Hannah McCarthy: [00:21:57.53] I mean, let's start with the big picture truth. American elections are truly difficult to mess with. Here's Jessica again.
Jessica Huseman: [00:22:06.29] This is sort of happened accidentally just by virtue of how diffuse it is under the Constitution, how diffuse it's always been. But because most states see the authority to counties for election administration, we're talking about every county in the United States having basically a different voting system. There are 10000 offices across the country that facilitate and secure elections, and they all use a different system. So whereas in some places you can get into the system and affect the whole thing, right? Like the most you can probably do is like screw with one tiny little county, right? And even then, there are enough redundancies in place that those would probably be caught. And so this sort of diffuse and disconnected election system actually helps ensure at least from a, you know, policy and cybersecurity angle, a little bit more security.
Nick Capodice: [00:23:02.57] All right. So this sort of gets up what Jessica was saying about Russia. They couldn't really hack the whole system, in part because the whole system is actually thousands of little independent systems.
Hannah McCarthy: [00:23:13.13] Even so, after that attempt, and by the way, Russia's very successful social media misinformation campaign, we can't forget that the Obama administration designated elections as critical infrastructure,
Nick Capodice: [00:23:24.14] Critical infrastructure like water and roads and
Hannah McCarthy: [00:23:27.95] Agriculture. Yeah, and now the cybersecurity of elections. So, OK, prior to 2017,
Jessica Huseman: [00:23:35.30] There was no way for Colorado to call Nebraska and be like, Yo, we got this hacker. They say they're coming for Nebraska Max, right? Like, they might have an informal conversation, but there was no sort of way to share threat information or for the federal government to step in on behalf of a group of states all being impacted by the same thing. Secretaries of state who run election infrastructure in every state didn't even have security clearance to like access. A lot of these reports that the federal government was giving, and so there was just this real problem in terms of communication and over the last couple of years, that's really sort of leveled out. Dhs and the Department of Justice have a much more close functional working relationship with states than they used to, and that's all because of this critical infrastructure designation.
Hannah McCarthy: [00:24:24.05] I do want to be very clear about one thing there is not much the federal government can do when it comes to elections. They're not the ones in charge the states are. So if you're watching all of these states pass various election law and love it or hate it, you shouldn't necessarily look to the federal government to step in. Look to electing new state level legislators and governors and secretaries of state if they happen to be elected officials in your state. But what the federal government has been able to do in recent years is support states.
Jessica Huseman: [00:24:57.86] The federal government has been more aware of what it can do to support states, and then state governments have also been made aware by these security experts from DHS and, you know, state entities coming in and looking at the systems for the first time, really in a holistic way and making recommendations for security. So some of these laws are grounded in really great information security protocols. Some of these laws are not, and some of these laws are founded and real, legitimate concerns about technology, security and and well-funded infrastructure. And some of them are, you know, trying to prevent in-person voter fraud, which is not a thing. And so, you know, I mean, it's a bit of a mixed bag out there. But I think that the thing that gives me hope and allows me to sleep at night is that I think that right now elections in America are more secure than they've ever been. The system has on balance, gotten better, not worse.
Nick Capodice: [00:26:02.90] All right. I hear you that the federal government doesn't have all that much power here, but I do have a question about the 2020 election when all eyes were on the federal government because. There was this idea that the vice president, Mike Pence, could simply refuse to accept electoral votes that did not elect Donald Trump, and that's about as federal as it gets.
Hannah McCarthy: [00:26:23.91] Yep. Ok, I'm going to try to do this quickly. Folks, welcome to the Electoral Count Act.
Jessica Huseman: [00:26:33.86] Electoral Count Act was written in eighteen eighty seven. It is quite old and it is quite vague. It has loopholes you could drive trucks through.
Hannah McCarthy: [00:26:43.11] The Electoral Count Act was introduced after the super contested Hayes Tilden election of 1876 to basically create a guide for what to do when there are electoral vote disputes and a divided Congress.
Jessica Huseman: [00:26:55.50] You will remember if you were watching January 6th of last year seeing Josh Hawley or Ted Cruz and one person in the House of Representatives object to a vote, right? That was enough to carry the objection.
Nick Capodice: [00:27:10.95] Mr. Vice President I. Paul Gosar from Arizona. First, the gentleman from Arizona, right? I rise both for myself and 60 of my colleagues to object to the counting of the electoral ballots from Arizona.
Jessica Huseman: [00:27:23.82] We can raise those stakes right. There was a lot of miscommunication and misunderstanding around Vice President Pence's authority to just sort of wholesale reject some of these ballots, right? And Trump, to this day continues to insist that Mike Pence had that authority, and that misunderstanding was a large part of what fomented the violence on Jan. six, right? I mean, it's not an accident that these people were running through the halls of Congress looking for Mike Pence yelling, Hang Mike Pence
Nick Capodice: [00:27:53.97] And bring out Pence, while rioters outside had set up a makeshift gallows on the field near the Capitol.
Justin Levitt: [00:28:00.06] So not only were the rioters literally calling for Mike Pence's murder.
Nick Capodice: [00:28:03.63] They had set up the structure to carry it out.
Jessica Huseman: [00:28:06.06] It's because of all of this misinformation around the powers that he had under the Electoral Count Act of 1887.
Hannah McCarthy: [00:28:14.22] To be clear here, the Electoral Count Act does not say the vice president has the power to throw out or ignore electoral votes. That power does not exist. But like Jessica says, the act is also notoriously vague. So Congress is trying to fix it.
Jessica Huseman: [00:28:30.84] The movement to fix it is essentially to make the language far less vague than it is right now. Specify all of these broad terms make it abundantly clear that the vice president only has a ceremonial role in counting votes and actually does not have the power to toss them out. And this seems to be pretty bipartisanly accepted now, and I think that we're sort of coalescing around some interpretation of the Electoral Count Act. But if you think about the ACA and sort of how vague the language is, that gives you a good basis to understand how little power the federal government actually has over elections.
Nick Capodice: [00:29:15.18] So what would a rewrite of this law look like?
Jessica Huseman: [00:29:17.64] We're going to go back and essentially make it even less powerful, right? Like we're going to raise the threshold for the number of people who can object to Electoral College votes. We're going to make it obvious that the vice president's role is ceremonial so that it cannot be misinterpreted. So if anything, this reform is reducing the potential involvement of the federal government and the vote counting process, not increasing it. And so you can kind of see how that might have some bipartisan pull.
Nick Capodice: [00:29:47.91] One last thing, Hanna, I hear you on the federal level. I hear you loud and clear. So just to shore things up. Let's look at the state level. How much power does a secretary of state have when it comes to those same votes? And I know the role varies from state to state, but generally the secretary of state is the chief election official as well. So even if a vice president can mess with those votes, can a secretary of
Jessica Huseman: [00:30:16.20] State, there is no truth to that fear. No secretary of state has the authority to unilaterally toss out a bunch of ballots, right? And this is by design, right? Like we have first of all, secretaries of state are not nearly as helpful in the term in terms of actually administering the election as people think that they are right. The elections are carried out by counties, and the state is not the one processing the results and counting the votes and establishing where know problems may have taken place. That's the county right, and the county reports its results to the Secretary of State's Office. And unless there is a very defined list of problems that are generally laid out very clearly in state code, the Secretary of State has no authority to contest those results at all. Then state legislatures really don't either.
Hannah McCarthy: [00:31:09.84] Just to clarify, what Jessica is talking about here recounts audits, contested elections. We know all of these things happen. There are automatic recounts triggered if the count meets certain criteria set out in state law, like a very close margin. And then there are requested recounts when an interested party also defined by state law, but usually this is a candidate or a. Order requests it on occasion, a court can order a recount, but this typically only happens if that candidate or voter asks the court. And when it comes to audits, most states have laws requiring that they be done automatically to double check that an election went smoothly, that equipment function properly and processes were followed. I will say politicians can and have called for audits and publicly contested vote counts and asserted that a vote should not have been certified by the state. Now, whether this is politicking or genuine concern or a little bit of both. The Secretary of State has to do their due diligence to ensure that the count and the election was indeed fair with as little human error as possible, and to the 2020 claims that a Legislature could simply ignore the votes and send electors who could vote how they wanted them to vote. It would be in violation of law and Supreme Court rulings, and the Supreme Court would ultimately have to decide if those legislators could overrule the will of the people.
Jessica Huseman: [00:32:42.90] There is a reason the certification process kind of exists outside of the politics of the thing, and so there's really no way for the state as a whole to reject ballots. And that's because of the sort of security through diffusion situation, right? The counties are way more powerful in terms of the impact of your individual vote than the state and certainly the federal government. It's like how most of my job goes, like somebody will be like Russia hacked to this machine. And the answer is no, they did it. But like, I still have to sit there and spend 30 minutes being like, Let's talk about the way computers work.
Hannah McCarthy: [00:33:24.66] Hey, Nick, let's talk about the way the computers work.
Nick Capodice: [00:33:26.82] It was a brilliant transition, Hannah.
Hannah McCarthy: [00:33:28.44] But seriously, the computers are a problem, just not necessarily for the reasons that people say they are.
Jessica Huseman: [00:33:33.27] There are some real concerns about the quality of America's election infrastructure, right? You can't use a 20 year old computer. We have all tried right to like, use a computer that is awful and out of date, like voting machines are nothing but very simple. Computers and hardware like that has a shelf life. And so even if these machines are as secure as they can be, they're still going to break down. And so a lot of these issues that people conflate with security problems, you know, you always hear during every election, like somebody like took a video and their polling location and they're hitting the button for Donald Trump. But the selection for Hillary Clinton is lighting up, right? Like, this is not hacking. We have all gone to an old ATM and the screen has been mis calibrated and you hit the three and the one highlights, like the voting machines, are older than the first iPhone. And so I think that the lack of appropriate funding for this is is really a problem like both from a security perspective, but also just an accessibility perspective, like if we're forcing voters to use old, pointless technology and the companies that produce this technology are no longer making replacement parts, we're no longer pushing through security updates for these machines, right? Like injecting more cash into that system and allowing counties and states to actually invest in new technology is crucial and is not happening right now.
Nick Capodice: [00:35:11.13] So it sounds like there are big differences between the conspiracies and the messaging and the politicking and the actual truth of election security. And this is a good start for anyone who's iffy about it and wants to know what the actual deal is. But what's the bigger solution, Hannah? Because states are continuing to pass laws that address fictional problems like widespread voter fraud, and people continue to believe those fictional problems and continue to mistrust the system that you're telling me is fairly trustworthy.
Jessica Huseman: [00:35:43.74] The best tool in our toolkit against these people is to teach them actually how the system works, right? And so one helpful thing that I've seen counties do is essentially make like explainer videos of how logic and accuracy testing works for the machines or how audits work or how you know what the physical security is like and how machine, you know, really doing voter education and thinking about voter education more broadly than just here's what you need to do to cast your ballot, right? Getting them involved and understanding the system as a whole is really important for trust and for, you know, people just need the ability to call B.S. on. This information that they hear, and they can't do that unless they've got good information, and so I think that's really what we need to be moving towards is embracing a bit more fulsome education around the voting experience.
Hannah McCarthy: [00:36:47.88] The truth is that there are people out there who would like to share the truth with you. And maybe the unfortunate thing right now is that for the most part, you only really access those resources if you go looking for them. Like, isn't it interesting how in your face that Georgia voting law was and how not in your face? You're helpful local election officials are. We do need to know about restrictive voting measures. Don't get me wrong, but I don't believe those measures are going anywhere until we also know how elections are going right. In other words, everything election officials do to ensure a safe, fair and accessible election.
Jessica Huseman: [00:37:29.82] Go to your county clerk's office and ask questions. I think that this is the most sort of exciting thing that I encourage people to do and and county clerks, offices or county registrars, offices or county election administration offices, whatever your county calls them, are very open, right? They are and exist to be the conduit between county government and the public. And so they are very used to dealing with the public. They are very used to answering the public's questions. They generally have publicly accessible stuff for you to like, touch, right? Most county office election offices that I have been to have a voting machine that is set up that you can go and like, play with and they will give you a tour of the warehouse if you ask for one, and they will show you how logic and accuracy testing works. A lot of these things that they do, the audits, the accuracy testing, the security testing are open to the public. And if you're concerned, you can go and watch.
Hannah McCarthy: [00:38:33.45] And the last place to look for the truth about election security. Go behind the scenes at the polls.
Jessica Huseman: [00:38:39.18] If you're concerned about the security of elections on Election Day, then the best thing for you to do is go be a poll worker. My mother also had a significant number of misunderstandings about the election security system and was constantly arguing with me about the, you know, propensity for this problem or that problem or whatever. And then finally, last year, she calls me out of blue and she's like, I've signed up to be a poll worker. And I was like, Great, because after you do this, all of the things that you thought were wrong with the system you're no longer going to think are wrong with the system. And so she went to poll worker training, and at the end of the day, I was like, So are you concerned about fraud? And she was like, I really just don't even understand how anyone could cast a fraudulent ballot. And I was like, Really? Thanks, OK, thanks, mom. Ignore me for five years and like, be a poll worker once and you're you're all of your concerns or satisfied. But, but I mean, like, that's really what it takes, because when you go to poll worker training, you're not only getting sort of like, this is how you help people vote, right? Like, it's this is how the system works.
Jessica Huseman: [00:39:46.38] This is what you have to do with the machines. This is how you test the machines is how you set the machines up. Somebody is going to come at the beginning of the day to make sure that the machines are set up correctly. Somebody will come at the end of the day to make sure you tear torn them down correctly if somebody needs a provisional ballot. Here is what you give them, right? Like all of those fail safes that my mother had never been forced to interact with before she was having to interact with as a poll worker. Because if you're a poll worker, you have to engage with all of the potential problems and the solutions for them. And I think once you empower yourself to understand that there are first and second and third line solutions to every foreseeable problem in elections, then you have a lot more confidence about sort of their mechanics.
Nick Capodice: [00:40:31.59] I think, Hanna, that I was prepared to either be vindicated or disabused of my notions about bad actors in the world of election security. And it's more like, well, the physical state of elections is good. But if the public believes misinformation about the elections, we're still going to see laws that cater to that misinformation, and yes, those laws make voting anywhere from annoying to truly difficult, and those who want those laws passed for political reasons have a reason to amplify misinformation. So at the core of it? Elections are perhaps running better than they ever have, with some old technology exceptions. But it is cloaked in a fog of untruths, which can then lead to laws that make some people feel worse about access and others feel certain about something like, say, voter fraud.
Hannah McCarthy: [00:41:28.65] And then on top of that, are we really reading the language of those laws, or are we reading the headline and thinking, well, lawmakers have large scale disenfranchized as many of us as they can? And which of those is more dangerous? The law that is passed, or the public perception that elections have fallen into the hands of ne'er do well, power hungry politicians and the whole thing is just hopeless. Which is more likely to prevent people from going to the polls. I'm honestly asking that I do think that it's worth asking. So ultimately, I say if you're concerned about elections, just ask, ask how they work. Ask where your ballot goes. Ask who is in charge. And for the love of Mike, ask for help to make sure your vote is counted. This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jackie Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Kizza Young Carts and Meloche, we pack a lot into an episode, especially like this one, but there is always something that ends up on the cutting room floor. Usually something that Nick and I find really interesting. So we put it in our newsletter extra credit, and I warmly recommend that you subscribe to it. You can do that at our website Civics101podcast.org, where you'll find all of our episodes, all of our resources and the way to get in touch with us. If you have questions about how this democracy works. Civic's one on one is a production of Nhpr.org New Hampshire Public Radio.
Nick Capodice: [00:43:10.16] Ok. Election security. Boring.
Hannah McCarthy: [00:43:19.76] Oh, my God.
Nick Capodice: [00:43:26.09] Ready? Yep. Here we go. Yeah.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
Look up a definition of the Federal Reserve, and you'll see things like "central bank," "monetary policy," and "regulation and stabilization of the financial system." But what does it mean to have a national bank, and how does this government agency impact your ability to have a job, earn and borrow money, and afford things like groceries, rent, and pet food?
In this episode, we'll explain how the Federal Reserve came to be, how it works, and how the actions the Fed takes influence our economy. Our guest is Louise Sheiner, policy director at the Brookings Institution's Hutchins Center on Fiscal and Monetary Policy. She spoke with Civics 101 in 2017.
Want to learn more about the financial crisis of 2008? Here's some of our favorite resources:
PBS has a list of documentaries about the crisis. Christina loved "Inside the Meltdown" from Frontline.
"The Giant Pool of Money," from This American Life explores the housing crisis.
Marketplace has a series of reports on the Great Recession, including its continuing impacts on today's economy.
Christina Phillips: [00:00:00] You know how money works, but like, do you really know how money works? You know what I mean?
News Clip: [00:00:05] From the opening bell, investors were sounding the alarm. A massive stock
News Clip: [00:00:09] Sell that wild ride on Wall Street, the worst day in more than four years. Half of all
News Clip: [00:00:14] Grocery items rose six points to be
News Clip: [00:00:17] The most serious recession in decades. And that means life, as most Americans know it is about to change.
Christina Phillips: [00:00:23] You're listening to Civics 101, and today we're talking about the Federal Reserve.
Nick Capodice: [00:00:27] And listeners, this is Christina Phillips. She's our senior producer.
Christina Phillips: [00:00:31] Nick, have you ever listened to a speech by the chair of the Federal Reserve?
Nick Capodice: [00:00:34] No, absolutely. Absolutely not. Never in a thousand years would I do that on a night off.
Christina Phillips: [00:00:39] All right, so I did used to listen to the Federal Reserve's speeches, because in a former job when I was in news, I would cover the economy as part of my beat. And so I actually want to play you a quick clip of our current Federal Reserve Chair, Jerome Powell, back in 2019. So tell me what you think.
Jerome Powell: [00:00:55] Its 11th year, however, inflation has been running below the FOMC symmetric two percent objective, and crosscurrents such as trade tensions and concerns about global growth have been weighing on economic strength.
Nick Capodice: [00:01:08] Christina, I'm glad I have not spent any of my nights listening to Chair of the Fed Reserve talking.
Christina Phillips: [00:01:13] Yeah, I feel like, you know, I've listened to at least a dozen speeches by Jerome Powell over the years, and they're all like this. There's this language that is very difficult to understand.
Nick Capodice: [00:01:24] Yeah, and that ticks me off because at the end of the day, words like policies and growth indicators and inflation and market volatility, they're relevant to our lives. They flow down to you and me. So I'm very excited because a lot of this goes over my head most of the time to learn about the Fed. What is the Federal Reserve?
Christina Phillips: [00:01:42] Before we get into the big stuff, I want to spend a little time going over a few economic terms that we're going to hear over and over because they're super important to have. The Fed does its job. I'm calling this the Federal Reserve warm up, so I'm going to get a little warm up music going. The first word is interest. Interest is the cost of borrowing money, and it's how banks work as businesses. When you take out a loan, you're charged a percentage of the money that you owe. And that works in reverse. So if you have a savings account, for example, often if you put money into the savings account, if you're putting money into the bank, the bank will pay you interest.
Nick Capodice: [00:02:17] Ok, so if you open a savings account with a one percent annual interest rate and you put one hundred bucks in it at the end of 12 months, you have one hundred and one dollars.
Christina Phillips: [00:02:27] Yes, exactly. And the next word is inflation. Prices are going up. If you want to think of that another way, the value of money is going down. Things feel more expensive.
Nick Capodice: [00:02:40] It costs more money to get the same amount of groceries. Or you could sell the house you bought five years ago for $50000 more than you paid for it.
Christina Phillips: [00:02:48] Right. And I've got one more term before we get into the Federal Reserve, the unemployment rate. Now this is the percentage of the workforce or people who could be working, who aren't for any number of reasons.
Nick Capodice: [00:03:00] Ok, so it's not just all the people who don't have jobs compared against the whole population.
Christina Phillips: [00:03:05] Yeah, yeah. It's just how many people could be working who aren't. Another important thing is that unemployment rate and inflation are very closely linked, which we'll talk more about later. So that's the end of our warm up. It's time to get into the Federal Reserve.
Nick Capodice: [00:03:19] I know that the Federal Reserve is our central bank, but what is central bank mean?
Christina Phillips: [00:03:25] A central bank is set up by a government to oversee all other banking. It manages how much money is in circulation and regulates what banks can do with that money and how a central bank works in any given country is unique to that government.
Nick Capodice: [00:03:40] So we've done a lot of episodes on the founding documents, and one thing I know about our founders and the framers of the Constitution was a huge fear of giving the government too much power. No tyrants right. So how do we end up with the central bank that gives the government power over our economy?
Christina Phillips: [00:03:57] I've got some help breaking this down thanks to Louise Sheiner. She's the policy director at the Hutchins Center for Fiscal and Monetary Policy at the Brookings Institution, and before that, she worked as an economist with Federal Reserve.
Louise Sheiner: [00:04:09] So for a long time, there was no central bank in the United States. And you come to the early 1900s and the banking system was just extremely dysfunctional and it was wholly unsuited to the needs of the U.S. economy, which by then had been industrialized and quite sophisticated.
Nick Capodice: [00:04:24] Oh, so you haven't always had a central bank?
Christina Phillips: [00:04:26] Yeah. What you said earlier about the founding of the United States. Alexander Hamilton was the first to try to give the U.S. a central banking system an effort which got him a lot of opposition and ultimately failed. But a century or so later, industrialization transformed the economy
Louise Sheiner: [00:04:41] And without a national banking system, without a central bank, you had problems like there would be cash shortages in one part of the country and leading to bank runs and spikes in interest rates and recessions. And these happen quite frequently. Some type of central bank was needed to manage the peaks and valleys of the economy and to smooth out. Developments in different areas of the economy, and so the result was the Federal Reserve Act of 1913, which established the Federal Reserve System.
Nick Capodice: [00:05:08] How did they do that without giving too much power to the federal government?
Louise Sheiner: [00:05:12] Yes. So in order to get the political support for the central bank, there were a lot of compromises that were made and those compromises actually are still reflected in the organization of the Fed today. So in particular, the Federal Reserve is not this strong federal central bank. It is actually called the Federal Reserve System, and it consists of different parts. One is the board of Governors and that's located in Washington, and the members of the Board of Governors are appointed by the president. Members of the Board of Governors are appointed for staggered 14 year terms and the board chair is appointed for a four year term. Unlike other executive agencies, a new president or a new Congress cannot come in and just change the membership of the Fed.
Christina Phillips: [00:05:53] This board of Governors is made up of seven people who ideally have a diversity of experience in finance, industry and commerce and aren't all appointed by the same president. As far as the board chair, you can think of that person as the face of the Federal Reserve. This is who you'll see giving speeches and interviews.
Jerome Powell: [00:06:12] The current economic situation and outlook before turning to monetary policy.
Christina Phillips: [00:06:16] Jerome Powell is our current board chair. He was appointed first in 2018 and then again in 2022. But the Federal Reserve isn't just these board of governors. There's more.
Louise Sheiner: [00:06:26] It also has 12 regional Federal Reserve banks, which are scattered across the country and who have presidents that are appointed not by Washington, but by bankers and private citizens.
Nick Capodice: [00:06:37] And what are those regional banks do?
Christina Phillips: [00:06:39] These regional reserve banks are doing the everyday business of banking on behalf of the Federal Reserve. They're the ones making the sausage. Basically, they're the direct link to the private sector. So private banks that you and I use are overseen by a regional Reserve Bank, and they borrow and lend from it. For us in New Hampshire, that's the Reserve Bank in Boston. These reserve banks are also the Fed's experts on the economics of that region, so the Fed always has a sense of what's going on in different parts of the country.
Louise Sheiner: [00:07:07] So the system was created to balance all the competing worries and interests. Some Partisan the federal government in Washington, some part is controlled by government, some part is controlled by private citizens and bankers. And there's also regional coverage so that the interests of different people in different areas of the country are represented.
Nick Capodice: [00:07:25] So we've been talking a lot about banking and bankers so far. I would like to know when does the public start to come in? How does the Federal Reserve work in our interest?
Louise Sheiner: [00:07:34] The Fed is an independent agency, but it is accountable. It is part of government, so it is accountable to Congress and to the American people. So it is overseen by Congress, but it is independent in a way that many other agencies are not.
Christina Phillips: [00:07:50] The Federal Reserve is not funded by the budgeting process in Congress.
Louise Sheiner: [00:07:54] It's funded actually by the lending that it does. It lends money to banks and banks pay its interest, and from that interest, it funds itself. And then what they don't use to fund itself goes back to the Treasury. So although there is congressional oversight, they can't control the Fed by determining its budget. So the Fed has a lot more independence than other agencies.
Nick Capodice: [00:08:12] So politicians who might hate the idea of a central bank, they can't use their ability to just slash funding to reduce its power. Right. But earlier, Louise said that Congress did have oversight. So what does that mean?
Christina Phillips: [00:08:25] Congress gives the Federal Reserve a mandate to keep our economy healthy.
Louise Sheiner: [00:08:29] So formally, the mandate calls for maximum employment and stable prices. But it's interpreted as basically saying we shouldn't have inflation too high and we shouldn't have unemployment too high either. But then it's left to the technical experts at the Fed to figure out how best to do that. So it has both the technical expertise to figure out how to do that. You know, the Fed employs many, many PhD economists and also tries to insulate it from political pressure that would make it try to do things in the short run that might not be in the long run interest of the economy.
Nick Capodice: [00:09:05] Ok, so we've come back to inflation and unemployment.
Christina Phillips: [00:09:08] It's almost like I planned it that way.
Nick Capodice: [00:09:10] How does the Fed affect inflation and unemployment?
Christina Phillips: [00:09:14] Two ways. The first is monetary policy. The second is regulation and stabilization. And if you're wondering what I mean, when I say monetary policy and regulation and stabilization, rest assured we are going to define what those things mean and what they actually look like in practice right after the break.
Nick Capodice: [00:09:33] Before we continue as we are talking an awful lot about money today. I want to say that Civics 101 is always going to be free, but it can't be that way without your support. Head over to our website civics101podcast.org and help us out in any way you can. It means the world to us.
Nick Capodice: [00:09:57] Christina, you've told me about how the Federal Reserve is created and what it is now, can you tell me what it does?
Christina Phillips: [00:10:04] Yeah, and we're going to break that down into two parts. The monetary policy part and what I'm calling the responsible adult part.
Nick Capodice: [00:10:12] What is the responsible adult part?
Christina Phillips: [00:10:15] That's the regulation and stabilization part. Basically, the Federal Reserve is trying to keep financial institutions and people from playing too closely with fire. And then if things go wrong, how the Fed comes charging in with the fire extinguisher. Let's start with monetary policy,
Louise Sheiner: [00:10:31] Meaning that it uses its capacity to affect interest rates and the money supply to try to fulfill its mandate, which is to keep both inflation and unemployment low.
Christina Phillips: [00:10:42] That's Louise Sheiner, policy director at the Brookings Institution's Hutchins Center on Fiscal and Monetary Policy. She spoke with Civics 101 back in 2017. As I said earlier, inflation and unemployment are connected to each other and in a healthy economy, neither is changing too quickly. It's sort of like Goldilocks. The Fed wants to keep the economy not too hot, not too cold. Just right. Which, by the way, in the 1990s, there was a period of time called the Goldilocks economy.
Nick Capodice: [00:11:09] Wow. Really?
Christina Phillips: [00:11:11] Yeah, it was like everybody was like, OK, things are cool. Everything is good.
Nick Capodice: [00:11:16] Why don't we want the economy to change too quickly?
Christina Phillips: [00:11:20] So economists often use this metaphor of a playground swing, and it's the perfect metaphor. So I'm going to use it now. All right, I'm with you. You know how when you get on a swing, the further you swing forwards, the further you swing backwards?
Nick Capodice: [00:11:34] Oh yeah, yeah, yeah. Yeah, yeah, absolutely. Yeah. That's how they work. That's how swings work.
Christina Phillips: [00:11:43] So when a swing goes forwards, that momentum carries it backwards and an economy, if it's like a swing, if it swings really far in one direction, it's going to go really far in the other direction and it's really difficult to stop. The Federal Reserve doesn't want that. Small swings are easy to control. Those big swings are how we end up with economic crises, right?
Nick Capodice: [00:12:05] Like a recession?
Christina Phillips: [00:12:06] Yeah, exactly. If you've ever heard an economist say the economy is contracting, that's basically a slowdown of growth. That's the swing going backwards. A recession is a significant contraction that lasts over months, and now a depression is a more severe contraction that lasts years. Both of these mean that it gets harder and harder for people to afford things. Businesses can't make the money they need. People get laid off. Companies may fail and people are just struggling to afford their everyday expenses.
Nick Capodice: [00:12:37] So what is that just right perfect bowl of economy porridge?
Christina Phillips: [00:12:42] I'm sure that many people would argue that there's no like, perfect just right. But we do have some, some markers that we can go by. And if we start with inflation, which is the rate that the value of money is decreasing over time, some inflation is actually healthy.
Louise Sheiner: [00:12:55] The Fed has to be constantly monitoring the state of the economy to decide whether it's getting too strong, meaning that inflation is going to be right around the corner or too weak, meaning that employment is going to increase.
Nick Capodice: [00:13:06] So let's say the Fed starts to notice that inflation is going up pretty quickly. What can it do?
Christina Phillips: [00:13:12] Nick, we've arrived at interest rates. Remember how we talked about banks making money by charging interest when they lend money? Yes. Well, one thing the Federal Reserve does that other banks can't do is that it sets a federal interest rate. It has the power to say this is the interest rate that banks charge one another for lending interbank loans, so it serves as a baseline. If the federal interest rate goes up or down, it's likely that the interest rates that banks charge you or me will also follow suit.
Nick Capodice: [00:13:41] All right. So if I went out and got a loan for a car tomorrow, that interest rate a bank charges me is going to be affected by the interest rate the Federal Reserve has set.
Christina Phillips: [00:13:50] Exactly. The Federal Reserve meets eight times a year to decide if the rate should go up or down or if it's just right.
Louise Sheiner: [00:13:58] So when the Fed changes interest rates, it can change how fast the economy is growing
News Clip: [00:14:04] To hike? Or not to hike. That is the question.
Christina Phillips: [00:14:11] So you asked what the Fed can do if inflation starts going up too quickly? If inflation is going up, the economy is getting too hot. The Fed might increase that federal interest rate.
Louise Sheiner: [00:14:20] So when it raises interest rates, borrowing becomes more expensive, so people will cut back on new home purchases, credit card borrowing or other types of spending. And that can keep the economy from getting out of whack, growing too fast and causing inflation. On the other hand, when the economy is weak or is in a recession, the Fed can lower interest rates to try to help spur investment and increase spending and get the economy out of its bad situation and lower unemployment.
Christina Phillips: [00:14:48] And that, my friend, is the very basic rundown of monetary policy.
Nick Capodice: [00:14:52] This is something I never thought I would understand, but I think I get it. For the first time in my life, I do I do get it.
Christina Phillips: [00:15:00] Phew.
Nick Capodice: [00:15:00] I want to go back to this responsible adult thing. You mentioned the regulation and stabilization side of the Federal Reserve. What's that about?
Louise Sheiner: [00:15:09] The Fed has a very important role in regulating banks and also just in promoting the stability of the financial system as a whole. So it kind of does this in two ways. One, it makes sure that the banks under its supervision, which are most large banks, are in good financial shape and aren't taking on too much risk. So that's kind of like trying to prevent a financial crisis from happening.
Nick Capodice: [00:15:31] These crises have happened or been very close to happening several times during my life.
Christina Phillips: [00:15:35] Yeah. And if they do, for whatever reason, the economy begins to slide into a recession. For example, the Federal Reserve does have tools to respond, and it just so happens that we have a recent example of this type of response that we can talk through. So you can see exactly what that looks like.
Nick Capodice: [00:15:54] Are you talking about the 2008 financial crisis?
Christina Phillips: [00:15:56] Oh, you know, I am.
News Clip: [00:15:57] Wall Street veterans call it the worst financial crisis of their lifetime. For traders here working, the phones say a lot of their customers are freaked out waiting.
News Clip: [00:16:06] The financial markets from Asia to Europe are doing their utmost to prevent Monday from turning from dark to black.
Christina Phillips: [00:16:15] Just a caveat here. This is a complicated crisis that I'm going to try to boil down in a way that helps us understand the role of the Federal Reserve. But there are lots of sources about this crisis and the Fed's response that you can look at if you want more information, and we'll link to those in our show notes and at civics101podcast.org. So in the years leading up to 2008, there was a lot of risky investing that was happening largely outside of these regulations set by the Fed, meaning investors were making lending decisions that were higher risk. They could make a lot of money or they could lose a lot of money, and that risk flowed down to borrowers like you and me. A lot of this played out in the housing market, where lenders made it really easy to get mortgages and people bet on the value of their homes going up right.
Nick Capodice: [00:16:59] Maybe your mortgage has a really high interest rate, but if your house is going to be worth a lot more than you paid for, you'll make that sum up when you sell it.
Christina Phillips: [00:17:06] And for a lot of reasons, that bubble eventually burst. The value of homes plummeted. People who borrowed money with that expectation that their home's value would go up couldn't afford payments on houses that were no longer even worth what they paid for them.
News Clip: [00:17:20] Who are watching us from the last home you'll ever own tonight. Consider yourself lucky. Same goes for anyone ready to buy a slice of the American dream. But if you're among the millions trying to sell, this was a very bad day.
Christina Phillips: [00:17:32] For financial institutions that had been engaging in risky investing, couldn't support themselves. They were overleveraged and they started to collapse.
News Clip: [00:17:40] Major American investment bank in trouble, running out of money, perhaps on the verge of going out of business.
Louise Sheiner: [00:17:46] There's some still do some dispute in the economics literature about whether the Fed should have eased earlier. It's clear that the Fed did not see what was coming. And you know what I'll say I was at the Fed at the time is, you know, neither did the rest of the economics profession. So I don't know if this is a knock on the Fed or a knock on the economics profession or in some sense, maybe neither. It may be just these things are very difficult to know. I think most economists agree that if the Fed hadn't acted the way it did in the recession, the recession would have lasted much longer and would have been even worse than it was.
Nick Capodice: [00:18:21] And what did the Federal Reserve do?
Christina Phillips: [00:18:22] As Louise said, there was a lot of debate about what could have been done, maybe to prevent this crisis. And there's also criticism of how the Federal Reserve did respond, but to help us understand what the Federal Reserve can do to stabilize an economy that's in crisis. I want to go through the actions that it did take.
Louise Sheiner: [00:18:39] So one of the things it did was do what it normally does, which is to adjust monetary policy to try to stimulate the economy. And the Fed lowered interest rates from five and a quarter percent in September 2007 to near zero and kept them there for about nine years.
Christina Phillips: [00:18:54] But that couldn't mitigate the crisis on its own. It had to do something more. So the next thing it did was keep a couple of these giant banks from failing.
Louise Sheiner: [00:19:03] It made loans to help prevent the collapse of two very important firms Bear Stearns and AIG.
News Clip: [00:19:09] The New York Fed and JPMorgan Chase have agreed to provide an unspecified amount of secured funding to Bear Stearns for up to twenty eight days. The Fed will provide non-recourse back to back financing to JP Morgan
Louise Sheiner: [00:19:22] Chase because it believed that if these firms collapse, it could greatly increase the financial panic and really damage the economy.
Nick Capodice: [00:19:30] Right. This is the expression we've heard quite a bit when it comes to the recession too big to fail.
Louise Sheiner: [00:19:34] So as bad as a recession was, and it was bad without the Fed intervening, a lot of people think it would have been another Great Depression. The Fed also created a bunch of new lending programs that would make loans to banks and other bank like institutions. And that was really to fulfill its role of lender of last resort and to pretty much say, Look, there doesn't need to be a panic. We are here to lend money if you need it and to basically calm the markets and prevent the system from kind of going into sort of chaos.
Christina Phillips: [00:20:04] It's also important to mention that Congress passed emergency legislation called the Troubled Asset Relief Program that set up systems through government financial agencies like the Treasury to give banks, businesses and millions of Americans a way to get out of that financial hole.
Nick Capodice: [00:20:19] As we are doing this episode spring of 2022. I kind of have the feeling that we are on the brink of another financial crisis. Inflation has gone up massively in the last few months.
Christina Phillips: [00:20:29] Yeah, it's important to remember that at any time in the economy, what's going on is unique to that moment. So what's happening now may look like something we've seen before, but it's not the same. And also what happened in 2008 is still contributing to some of the things we're seeing now, like rising inflation. But on top of that, we've got events like the pandemic and global conflict. They're all contributing to it as well. And the Federal Reserve will continue to use its tools, monetary policy, regulation and stabilization to adapt to the economy of right now to strive to meet that mandate by Congress. Low inflation and low unemployment. Back in Twenty Seventeen, Louise spoke about the future of the Federal Reserve, and I think her feeling is still pretty relevant now.
Louise Sheiner: [00:21:21] The reason the Fed is an independent agency in the sense that I already described is that there is a view that independence is very important for central banks, that it is important that monetary policy decisions not be subject to political, short term political considerations. I think, you know, I'm hoping that the Fed has a very healthy long term outlook. It has weathered political storms in the past, right from the beginning. It's always been an institution that is not typically all that popular and it manages to survive, and I hope it still does.
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The Supreme Court is considered by some to be the most powerful branch of US government. What makes it that way, and what happens when the Court gets it wrong?
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.
This episode is a broadcast special that aired across the nation on NPR, and is two parts: our episode on how the Supreme Court works, and part one of our series on landmark civil rights cases: Dred Scott v Sandford.
Find each original individual episode here: the Judicial Branch and Civil Rights: Dred Scott v Sandford.
Hannah McCarthy: [00:00:00] This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:00:02] I'm Nick Capodice.
Hannah McCarthy: [00:00:02] Jay. Today we have got a special two part episode for you about the Supreme Court and civil rights that aired as a broadcast special on NPR stations around the country. First, we are going to give a truly 101 explanation about how the judicial branch works, its powers, its checks, what it can do and what it cannot do.
Nick Capodice: [00:00:21] And then we will dive into a case that many historians have referred to as the worst Supreme Court decision in US history. Dred Scott. V Sanford. Now, Hannah, there is a lot of vocabulary headed our listeners way in the first part of this episode, but hopefully everyone's going to come out of the other side. Understanding the definition of Judicial review. Search three or four short circuit courts and circuit court splits. And also, listeners are going to learn about one of my favorites. Here comes favorite decisions of all time, the one that started it all. Marbury v Madison, 1803. This case has everything. Hannah. Judicial Commissions. Angry John Adams. Midnight Judges.
Hannah McCarthy: [00:01:11] You sound like Bill Hader's Stefon character on SNL. Does this case have Dan Curtis?
Nick Capodice: [00:01:16] Sadly, there's no Dan Curtis in Marbury v Madison.
Hannah McCarthy: [00:01:20] All right, let's do it. Civics one on one style with a breakdown of the judicial branch.
Nick Capodice: [00:01:24] You got it. This Lieutenant White came.
Archival Audio: [00:01:31] And showed a piece of paper. And Mrs. Map demanded to see the paper and to read it, see what it was.
Archival Audio: [00:01:40] The first plaintiff was Jane Rowe, an unmarried.
Archival Audio: [00:01:43] Pregnant girl who had sought an abortion in the.
Archival Audio: [00:01:46] State of Texas. You can order you to salute the flag. We can order you to do all these advances to the flag. Can we order you not to do something to show something about the flag?
Archival Audio: [00:01:57] I see that my white light is on, so if there are no further questions, I would save my further time for rebuttal. Thank you, Mr. Fielding. You have no further time. We'll hear now from you, Mr. Robbins.
Archival Audio: [00:02:09] Do you remember this moment?
Archival Audio: [00:02:11] Yeah. Mr. Chief Justice. And may it. Please the Court. I'd like to. Begin my remarks by addressing the questions regarding deception.
Larry Robbins: [00:02:22] Yes. So is that. That's actually from. Must be from Colorado against spring. Yeah. You know, I. I didn't realize that that one was recorded. I don't know that I've ever heard it.
Nick Capodice: [00:02:32] This is Larry Robbins. He runs a private law practice now, but for years, he worked in the office of the solicitor general. That's the office responsible for arguing on behalf of the United States in the Supreme Court. I called him up because I wanted to know what it's like to stand there alone under the eyes of Rehnquist, O'Connor, Ginsburg, Marshall.
Larry Robbins: [00:02:54] What's remarkable, or it was to me anyway, the first time I stood up at the lectern is how close to you the justices are. I always I guess I always analogize it to sitting in a living room with nine very smart people who have thought about the same problem that you have and want to ask you some questions about it and your job is to answer them. That's how it felt to me. And I've done it 18 times and it always feels like that.
Nick Capodice: [00:03:29] While I studied acting in college on a whim, I took this one class on the First Amendment where the only texts we were assigned were Supreme Court opinions. And thereafter I took every single course that professor taught. And I've just carried a torch for the third branch ever since. Hannah, what would you say if I told you that the judicial branch is, quote, beyond comparison, the weakest of the three departments of power? That it's next to nothing?
Hannah McCarthy: [00:03:57] I'd say you were terribly misinformed.
Nick Capodice: [00:03:59] I know, but that was a direct quote from Federalist 78 by Alexander Hamilton, because initially the Supreme Court did not have that much power. But there was a night. Then everything changed.
Hannah McCarthy: [00:04:14] Lay it on me.
Nick Capodice: [00:04:16] You're going to love it.
Nick Capodice: [00:04:18] I'm standing up. The presidential election of 1800. The two major political parties, the Federalists and the Democratic Republicans. Thomas Jefferson. The Democratic Republican beats the incumbent Federalist. John Adams. 76 electoral votes to 65. And Adams becomes what they call a lame duck president. He's just sitting around until Jefferson is sworn in on March 4th. It's like spring of your senior year, right? But Adams and his Federalist Congress, they don't just sit there. They go to work in the lame duck session. They pass this law called the Judiciary Act of 1801. And it's a new version of the Judiciary Act of 1789. I promise this is important, which creates a ton of new courts in the United States. And Adams uses his executive power of appointment and just packs those courts full of federalist judges. The very night before Jefferson comes to the White House, they have appointed 16 circuit judges and 42 justices of the peace. These were called the midnight judges. Got all their albums. So you get a judge commission and you get a judge commission. Adams Secretary of State John Marshall, he's just running around frantically trying to give out these judgeships. And some of them didn't get delivered at time. Jefferson is sworn in, and one story goes that he sees all of these judge commissions on the table and says, oh, no, you don't. And he maybe throws them all in a fire. One of those potential judges, William Marbury, sitting by the phone with a ham sandwich waiting for his commission to arrive. He goes to the Supreme Court to sue Jefferson's new secretary of state, James Madison, and he says, Hey, I was promised this judgeship. I didn't get it. He's furious. And the chief justice of the Supreme Court is John Marshall.
Hannah McCarthy: [00:06:09] Hold on. Hold on a second. John Marshall was Adams secretary of state, the guy delivering all those commissions?
Nick Capodice: [00:06:16] Yes. And the chief justice, John Adams, was like, all right, my terms ending. Can you just do both jobs until Jefferson comes to office? So William Marbury, he thinks he's got this one in the bag. He's asking the court to issue what's called a writ of mandamus, which is where the court orders the executive branch to do something to give him that judgeship. And Justice Marshall, stunning. Everyone says, I'm sorry, Bill, I can't do that because that 1789 Judiciary Act was unconstitutional and we the Supreme Court, we have a job to do. And it is not to make people do things. Our job is to say whether or not something is constitutional. That case, Marbury versus Madison establishes judicial review.
Hannah McCarthy: [00:07:08] All right. I was wondering where you were going with that story, but this is pretty significant. A branch giving itself a major power. Maybe the most major power.
Nick Capodice: [00:07:18] Yeah. And apparently it kind of flew under the radar at the time.
Kathryn DePalo: [00:07:21] Now, a lot of people make a big deal about Marbury versus Madison today.
Nick Capodice: [00:07:25] This is Kathryn DePalo. She's a political science professor at Florida International University.
Kathryn DePalo: [00:07:30] But at the time, it kind of came and went with a whimper, right? Because nobody really said, oh, gosh, now this gives the US Supreme Court all this power of judicial review to declare something unconstitutional. You know, the courts were kind of an afterthought. They weren't really thought as, as, you know, as equal as Congress and the presidency, at least in people's minds, You know, and the Capitol building. They met in the basement.
Hannah McCarthy: [00:07:54] The Supreme Court used to meet in a basement.
Nick Capodice: [00:07:56] Yes. Kathryn told me that after Marbury versus Madison, the court didn't rule something unconstitutional again until 1857, the infamous Dred Scott decision, where the court ruled that an enslaved person was not a citizen and had no rights. The Supreme Court didn't really kick into its modern, more powerful iteration until the 20th century.
Hannah McCarthy: [00:08:16] So if they weren't declaring laws constitutional or not, what were they doing? What are their constitutional powers?
Nick Capodice: [00:08:24] The Constitution establishes the Supreme Court and it lays out that justices are appointed by the president with the Senate's approval. But it doesn't say how many justices there should be, though it does specify a chief justice. Originally, there weren't nine justices. There were five in the 1800s, and the number increased over the years via acts of Congress, cementing it at nine justices in 1869. It's left to the Congress to decide how the lower courts would be set up.
Kathryn DePalo: [00:08:51] There are some specific things that the US Supreme Court is tasked with doing.
Nick Capodice: [00:08:55] One of those is settling disputes between the states.
Kathryn DePalo: [00:08:58] So if New York wants to sue New Jersey over a particular matter, the Supreme Court is there to settle some of those disputes. Other things involve cases involving ambassadors and these particular things. But but but it's so vague. And really, the Supreme Court is not used as a trial court much anymore.
Nick Capodice: [00:09:18] The Supreme Court is what's called an appellate court, which means that it hears appeals. It's not like a trial court. There's no jury. So if someone loses a case in another court, they think it's not fair. They can appeal it up the chain.
Hannah McCarthy: [00:09:31] Appellate appeal. Yeah. How do cases get to that level where they're ruled upon by the highest court in the land?
Nick Capodice: [00:09:39] Here's Larry Robbins again.
Larry Robbins: [00:09:40] The Supreme Court, to my knowledge, is the only federal court and one of the few kinds of appellate courts that you have no inherent right to be heard in front of. All, you have to ask their permission and they grant it only very rarely.
Nick Capodice: [00:09:58] It's a long process and as Larry says, it's super rare, but it helps illustrate the entire federal court system instead of just those nine justices at the top. First off, Hannah, most trials in the U.S. are going to be in your state court. You stole a car. You got a divorce. You jump to subway turnstile. State court. Federal courts are for when your case deals with the constitutionality of a law or if the United States is a party in the case or if you broke a federal law. Currently, there are 94 federal trial courts, and those are divvied up into 13 circuits, kind of like the NCAA.
Hannah McCarthy: [00:10:35] So it's like the West Coast is one circuit.
Nick Capodice: [00:10:37] Right there, the Ninth Circuit.
Hannah McCarthy: [00:10:38] What circuit are we in?
Nick Capodice: [00:10:39] We in New Hampshire are part of the First Circuit, which also includes Maine, Rhode Island, Massachusetts and Puerto Rico, interestingly enough. Yeah. So if you lose a case in one of those 94 federal courts, you can appeal it to your circuit court. And a court of appeals trial has no jury. It's lawyers arguing in front of a panel of three judges.
Hannah McCarthy: [00:10:59] And if you lose that appeal, what happens then?
Nick Capodice: [00:11:01] We are on the road to getting your case into the Supreme Court.
Larry Robbins: [00:11:04] A case begins with an application to the Supreme Court to hear the case. This has a very fancy name with some with a Latin component because lawyers like to sound as obscure as possible. So it's called a petition for a writ of certiorari.
Hannah McCarthy: [00:11:23] Petition for a writ of certiorari.
Larry Robbins: [00:11:26] What's called a cert petition for short. And what what a cert petition does is it says to the Supreme Court, you should hear my case.
Nick Capodice: [00:11:35] And like Larry said, the Supreme Court does not have to do it.
Larry Robbins: [00:11:38] The vast, vast majority bordering on 98 or 99% are denied.
Nick Capodice: [00:11:45] If four of the nine Supreme Court justices agree to hear a case, then it will get a hearing in the Supreme Court. And only about 100 of the nearly 7000 cert petitions are granted.
Hannah McCarthy: [00:11:57] Are there any types of cases that tend to be granted more than others?
Nick Capodice: [00:12:01] Yes, and Larry had some tips on that.
Larry Robbins: [00:12:03] The most important thing you can say to get the Supreme Court interested in granting your case is that there is a question of federal law because the Supreme Court is there to decide federal questions, not state law questions, but federal questions, either questions about federal statutes or the United States Constitution. And what you want to tell the court is, look, there is an important federal question that the courts of appeals, the lower federal courts, disagree about.
Nick Capodice: [00:12:37] There's hundreds of publications and websites out there that track these circuit splits where two circuit courts are divided on an issue.
Larry Robbins: [00:12:44] Even better, if you can say there are three circuits on one side of the question and four on the other side of the question so that, you know, the issue has been widely considered. The question has percolated in the courts of appeals, if you will. That's a. A Supreme Court lawyer's term of art.
Hannah McCarthy: [00:13:09] I have a question. Yeah, go ahead. So the Supreme Court, a seemingly passive political body, does have some political power because they can decide what cases they want to hear or not. And presidents campaign on what kind of Supreme Court justice they'll appoint. But if a justice wanted to pass, say, a controversial ruling, they can't bring it up themselves, can they?
Nick Capodice: [00:13:30] Know they cannot.
Kathryn DePalo: [00:13:31] We talk a lot about how much power the court has, and I think some of the power of the court, particularly the US Supreme Court, has significant power in shaping a policy agenda. You know, if there's a ruling that they make, all of a sudden everybody's talking about it. And you point to Roe v Wade in 1973 and we're still talking about that. It separates our political parties and our system. That's that's power. That's setting an agenda. However, the power of the courts is really limited because the Supreme Court, you know, can't be watching, you know, TV and say, what the heck's going on? Let's make a ruling. They have to wait for the process to begin.
Hannah McCarthy: [00:14:05] Okay. So that's how a case gets into the Supreme Court. What happens once you're in there?
Nick Capodice: [00:14:10] Have you actually have you been to the Supreme Court chamber?
Hannah McCarthy: [00:14:12] I have not.
Nick Capodice: [00:14:12] Have you? Not since seventh grade. Anyone can visit it and witness the oral arguments. It's sort of this hallowed date, the first Monday in October until about mid-April. The court hears arguments and they make decisions. And when they're in recess, they choose their next session's cases and they prepare for those people will wait in line, sometimes from 5 a.m., like a rock concert to get a seat.
Larry Robbins: [00:14:34] In the years that I was in the Sg's office, they the Supreme Court, heard many more cases than they do these days. In those years, which were 1986 to 1990. There were typically four arguments every day that almost I think never happens anymore. The court doesn't grant as many cases as it used to.
Nick Capodice: [00:14:55] After the argument, usually the same week they meet privately and they vote. The senior justice and the majority decides which justice, with a lot of help from their clerks, is going to write the opinion. Drafts circulate, edits are made. These opinions take time mostly.
Kathryn DePalo: [00:15:11] Most of the time there is a majority opinion, whether it's 5 to 4 or 9 to 0. They they often on the court want to not have closely divided opinions because that doesn't look good for the court. Certainly going forward, that might not stand if you have a change in composition of the court. And then justices certainly that disagree, can write dissenting opinions. And Ruth Bader Ginsburg, I think, has written some of the more interesting ones expressing her legal rationale for why she thinks the majority got it wrong and what she thinks would be the proper course. Some write concurring opinions, meaning they're part of the majority. They agree with the majority, but they may disagree on some other point or they may expand on some issues that the court did not agree to, did not address. So they'll talk about those particular things as well.
Nick Capodice: [00:16:02] And while the opinion and dissent lay out the legal reasoning for a decision, the ruling is usually one of these three things affirm, reverse or remand. Affirm is that the finding from the lower court is upheld. So the petitioner was unsuccessful in their appeal. Reverse is the opposite, where the lower court's ruling was an error and it's overturned and the petitioner wins the day. And finally, remand is where the case is sent back to the lower court for a retrial with any irregularities corrected.
Hannah McCarthy: [00:16:35] One thing I'm curious about goes back to something that Kathryn said earlier about a court furthering a political agenda. Does the party of the president, who appointed them, have influence on their decisions?
Larry Robbins: [00:16:50] Uh, look, I think I think it's possible to overstate the significance of who appointed a particular judge or justice. I'm close to agreement with my old friend, who is now the Chief justice, John Roberts, who I think famously responded to one of the President Trump's tirades about Obama judges by saying there are no Obama judges, there are no Bush judges, there are just judges trying to do their level best. But I don't think, you know, anybody should be so naive as to imagine that political ideology has no impact. It certainly does.
Nick Capodice: [00:17:37] Larry told me one thing about how political ideology affects the law and it's something I'd never considered before. It's that right now it's such a high percentage of judges in the lower courts are conservative. And that means there's less disagreement between the circuits on rulings, which in turn means there are fewer cases presented to the Supreme Court for writ of certiorari. And this goes back to what Larry said, that the Supreme Court every year is hearing fewer and fewer cases.
Hannah McCarthy: [00:18:02] Last thing, these justices are appointed for life. They often outlive the presidents who appoint them. And they're not Constitution interpreting blank vessels. They have strong opinions. Right. So how do they interact with each other when they're off the bench?
Nick Capodice: [00:18:17] Larry refused smartly, I believe, to go on the record about that. But Katherine had a specific example that I thought was just lovely.
Kathryn DePalo: [00:18:26] The late Justice Scalia, probably one of the most conservative jurists we've had on the U.S. Supreme Court, was best friends with Ruth Bader Ginsburg, one of the more liberal justices we've seen in the history of the court. And they have this love of opera together. And they would would go see operas and they would have dinner with the spouses. And we're really the best of friends. And, you know, you can't find two really more opposite people. A lot of the justices have said, you know, it's not like in Congress where, you know, I'm going to yell at you for having your position. I respect your position. I may not agree with your position, but you have the right to say that and we move on. So I think the fact that they all trained lawyers and have gone through the advocacy processes in their careers and understand you're going to win some, you're going to lose some, I think is particularly important. And I think that's how the court continues to operate.
Nick Capodice: [00:19:21] Before we move on, Hannah, I snuck a little joke in this episode.
Hannah McCarthy: [00:19:25] You did?
Nick Capodice: [00:19:26] I did. People who listen to her podcast might know that I sometimes sneak jokes in after the credits, and I sure did. Here. Can I. Can I play it for you?
Hannah McCarthy: [00:19:34] Yeah. All right.
Nick Capodice: [00:19:37] May I help you, sir? Oh, yes. Is this the store that sells judicial accouterment? Oh, God. Save Mr. Marbury. What can I get for you? Yes. I have a need of so many things. A hat and a wig and a robe. Whatever it is the judges get these days. Well, I can help you there, Mr. Marbury, but it make much more sense for me to tell you that once you have the actual job. No, no. Yes, sir. I am to be a judge. And you best marshal your words with better care, or I can make life very difficult for you. Well, no offense, Mr. Marbury, but talk like that makes me think you'll be a very shabby justice indeed. No. The way I see it. I'm going to be a prudent judge. I'll hand down wise decisions where it's just the justices I've met. They actually have commissions. I'll be legislating from the bench. My rulings will be famous brushing up on torts and Contract Law and writs of mandamus. But first, I think John Marshall will Have to budge. I just can't wait to be judge. Oh, crap.
Hannah McCarthy: [00:20:55] That was, without a doubt, one of the most ridiculous things I have ever heard.
Nick Capodice: [00:21:01] We've got more Supreme Court stuff headed your way after the break here on Civics 101.
Hannah McCarthy: [00:21:06] But before the break, this is your weekly reminder that we have a newsletter. It's called Extra Credit, and it's essentially where we put everything that ends up on the cutting room floor in each of our episodes. If you want to get all of that good stuff that we are so obsessed with. You can subscribe at the top of our website, civics101podcast.org.
Nick Capodice: [00:21:24] I'm an Nick Capodice.
Hannah McCarthy: [00:21:26] I'm Hannah McCarthy. And you're listening to Civics 101 from NHPR. You're about to hear our episode on one of the most infamous Supreme Court cases from American history. This is the story of Dred Scott versus Sanford, the case in which seven out of nine justices agreed that anyone descended from an enslaved person could not be an American citizen. In effect, black Americans were not Americans at all. This case is anti canon, a term that we get into in the episode itself. But I want to highlight that there are only four cases that are considered grievous enough to fall into this category. It's Dred Scott, Plessy versus Ferguson, Lochner versus New York and Korematsu versus the United States. We cover three of these cases in our Supreme Court series. You're about to hear Dred Scott, but you should also check out Plessy and Korematsu at our website, civics101podcast.org. These cases reveal a lot about both the justices on the court and prevailing prejudices, racism and notions about human rights at the time that the decisions were issued today. The rulings in these cases are known to be wrong, but that doesn't mean that the opinions are poorly written, that their reasoning doesn't have some isolated soundness. To understand our anticanonis to understand the fact that our civil rights are not divine. They are established or withheld by fallible people in black robes. So without further ado, here's Dred Scott V Sanford.
Hannah McCarthy: [00:23:14] There are some decisions made by the Supreme Court that are considered to be canon, meaning they are considered so obviously right and true and in keeping with correct constitutional meaning that they set unimpeachable precedent. Brown v Board of Education, for example. Racial segregation of children in public schools is unconstitutional. This is almost universally agreed upon as right and true. In keeping with the word of law in the United States. It's both about constitutional interpretation and ethical and moral principle. And then there are cases that represent the exact opposite. The rulings in these cases have been described by scholars and judges as bad, grievously mistaken, odious. These are the Supreme Court's mistakes. We call them the anti canon.
Nick Capodice: [00:24:23] Anti canon as in the opposite of canon.
Hannah McCarthy: [00:24:27] Sort of, but still a form of canon, still something that should be used if canon should be used as precedent. Anti canon should be used as anti precedent decisions so wrong that their incorrectness stands as a glaring warning. This is what not to do. This is what the Constitution does not mean. And today we're going to tell you about the first anticanoncase. And many would say the worst a decision, incendiary enough to help to push our nation to the brink of war and inhumane enough to require constitutional amendments to fix its results. The 1857 case, Dred Scott v Sandford.
Lynne Jackson: [00:25:21] Dred Scott, aside from being my great great grandfather, is also a hero.
Hannah McCarthy: [00:25:25] This is Lynne Jackson.
Lynne Jackson: [00:25:27] Great, great granddaughter. Dred Scott, founder and president of the Dred Scott Heritage Foundation.
Hannah McCarthy: [00:25:33] In 1846, Dred Scott was living in St Louis, Missouri, with his wife Harriet, and daughters Eliza and Lizzie. The family was enslaved and suing for their freedom. That is how this case starts, and we're going to come back to that. Now, Lynn formed the Dred Scott Heritage Foundation back in 2007 with the goal of getting a statue of Dred and his wife Harriet, erected in front of the St Louis, Missouri, courthouse where the case started. Lynn got the statue and since then she's been telling the Scott story and connecting other descendants of impactful Americans to share their stories and reconcile their pasts.
Lynne Jackson: [00:26:10] What we've done to help Dred Scott's legacy go forward into the future. Because when you think about it, there was a period of time when Scott's name was known but not taught. The case was not taught. I even have his beautiful, very thick black book on Afro-American history. And it's just like this thick. But Dred Scott is not in that book. It was written by black people. It was written by black people, and it was written in the forties. And I couldn't believe it.
Hannah McCarthy: [00:26:42] And I think, like to Lynn's point, I had just sort of a glancing blow of a lesson about Dred Scott when I was in school. I know teachers teach it now, right? But I really barely knew the story of Dred Scott. What about you?
Nick Capodice: [00:26:58] Back then, I also knew nothing about it. I knew it was about a formerly enslaved person and whether or not the court could decide if they were citizens or not.
Hannah McCarthy: [00:27:06] I think there was a period during which this case kind of lay dormant or not deeply explored.
Lynne Jackson: [00:27:13] Things like that can drop off sometimes. Well, he's back.
Nick Capodice: [00:27:20] Okay. 1846 St Louis, Missouri. Dred and Harriet are enslaved and suing for their freedom. So first, what are the laws about slavery in the United States at this time?
Hannah McCarthy: [00:27:33] Yeah, enslavement was legal in some states and prohibited in others. There was something called the Northwest Ordinance. It was passed just before the Constitution was ratified, and it prohibited slavery in this area. Specifically, it had to be west of Pennsylvania, northwest of the Ohio River and east of the Mississippi. Something called the Missouri compromise admitted Missouri to the nation as a state where you could enslave people main to the nation as a free state and said, okay, here on out, new states north of a certain latitude will be free states. New states south of that latitude will be states where you can enslave people.
Nick Capodice: [00:28:11] But if Dred and Harriet were in Missouri, which was a slave state, how could they sue for their freedom?
Hannah McCarthy: [00:28:17] Freedom suits actually stretch back to the colonial era in North America. They're a holdover from English Common Law. They were often based on enslaved persons having been held in a free state or territory. There was a once free, always free principle that was respected even in many slave states. So the Scots suing for their freedom. It's not that big of a thing, even in Missouri.
Lynne Jackson: [00:28:43] Well, you know, when in the beginning and really even to 1854, it probably wasn't that much of a situation because locally in Missouri, there were slaves who sued for their freedom.
Hannah McCarthy: [00:28:55] Hundreds of enslaved people petitioned for and won their freedom in Saint Louis.
Lynne Jackson: [00:28:59] In order to do that, you have to have some serious proof of grounds and proof evidences and certain criteria had to be met. So if they were met, the courts would allow them to petition and sue.
Nick Capodice: [00:29:11] What kind of proof are you talking about?
Judge John Tunheim: [00:29:13] The rule of law at the time, even in many of the Southern states, was that if an enslaved person lived and worked for a period of time in a free jurisdiction, they became free.
Hannah McCarthy: [00:29:25] This is Chief Judge John Tunheim of the U.S. District Court in Minnesota.
Nick Capodice: [00:29:30] So what point had the Scots lived in a free territory?
Hannah McCarthy: [00:29:33] All right. Here is the quick rundown. Dred Scott had been enslaved by a man named Peter Blow, and Scott had lived in Virginia, Alabama and Missouri in his early years.
Nick Capodice: [00:29:46] All slave states.
Hannah McCarthy: [00:29:47] That's right. Now, the blows eventually sold Scott to an Army surgeon, Dr. John Emerson. And we're not 100% certain of when that happened.
Judge John Tunheim: [00:29:56] Dred Scott himself, when he was sold to Dr. John Emerson, followed him to a number of different jurisdictions, the state of Illinois and a military reservation. The Wisconsin territory for Snelling in what is now Minnesota, various times in Saint Louis, in the state of Missouri, and even a short stint in Louisiana. All four of those jurisdictions at the time recognized that enslaved people would become free because they had lived in a free jurisdiction.
Hannah McCarthy: [00:30:30] So Dred is taken by Emerson to Fort Snelling, where he meets a woman, Harriet Richardson. She is also enslaved and her enslaver transfers her ownership to Emerson when she marries Scott. This was typically done through dealing specifically quitclaim deed thing used to transfer physical property, and the Scott's are taken by Emerson to his various army posts, staying at times in free territories. Harriet eventually gives birth to their first born daughter, Eliza, while traveling by Steamboat on the Mississippi River. Eliza is born in free territory.
Judge John Tunheim: [00:31:06] Now, I think the precipitating factor of the Scott's suing for freedom came after Dr. Emerson died in 1842. I believe they were in Saint Louis at the time. The Scotts were they were inherited by his wife, Irene, and they tried to buy their freedom from her, which many, many people had done in Missouri, in Saint Louis. And there was a growing community of of free blacks living in Saint Louis. And that probably decided this was time. No longer with Dr. Emerson. He's passed away. Maybe not any particular attachment to his wife. So they sued in state court a freedom lawsuit, which is what they were called at the time. Missouri had recognized the right of enslaved people to sue for freedom since at least 1824, and it was settled law. They probably thought this was a slam dunk case. And so they sued and essentially they lost on a technicality. The technicality was that they didn't have a witness who could testify that Irene Emerson actually owned them.
Nick Capodice: [00:32:30] So they had to prove that the person who was enslaving them was, in fact enslaving them.
Judge John Tunheim: [00:32:37] Seems strange to us today that that would be the case. But that was the law back in that time. And so therefore, the case was dismissed for lack of a witness who could testify as to the person they were suing actually own them. And so that was appealed to the Missouri Supreme Court. At the time, the Missouri Supreme Court said this is nonsense and ordered a new trial.
Nick Capodice: [00:33:05] I have to ask, at this point, the Scotts had been in and out of free territories a number of times, and their daughter was born in a free territory. So why are they just petitioning for their freedom now?
Judge John Tunheim: [00:33:16] No one really knows exactly why they may or may not have known their rights. Certainly, unfortunately, during the time there were slaves held by many of the officers who were stationed there, including Zachary Taylor, who later became president. But it was a common practice.
Nick Capodice: [00:33:36] So it wasn't unusual for enslaved people to be held in free territories. And I would imagine that enslavers were not in the business of broadcasting that once free, always free doctrine.
Hannah McCarthy: [00:33:48] That seems like a safe bet. And even if you did know your rights, you're facing the legal fees required to launch a lawsuit. In the Scotts case, their initial fees were actually paid by the very same family who initially enslaved Dred Scott. The blows.
Nick Capodice: [00:34:05] The blows, really.
Hannah McCarthy: [00:34:07] It turns out that within a generation the family had become abolitionists. There's a lot in this story that you really couldn't make up. Now, getting back to the case, the Missouri court orders this new trial. At this point, Dred and Harriet's lawsuits had been combined into one. And the trial happens. This is in 1850.
Nick Capodice: [00:34:31] We're going to learn all about the trial after a quick break. But first, we at Civics 101 have put together many explorations of landmark Supreme Court cases. If you're a fan of learning about the judicial branch and how it applies to you, check them all out at our website, civics101podcast.org. I'm Nick Capodice.
Hannah McCarthy: [00:34:49] I'm Hannah McCarthy.
Nick Capodice: [00:34:50] And you're listening to Civics 101 from NPR. We are back with the conclusion to one of the most infamous cases in Supreme Court history. Dred Scott v Sanford.
Lynne Jackson: [00:34:59] And so the second trial, they did win their freedom by a jury of 12 white men.
Nick Capodice: [00:35:04] They won. They were.
Lynne Jackson: [00:35:06] Free. And that was a happy day, except that Mrs. Emerson appealed it and then it just continued to go from there.
Hannah McCarthy: [00:35:14] This whole case is gutting and it's only going to get worse. But it is this moment when the Scott who at this point have two young daughters actually win their freedom and their enslaver moves to take it away again. That I just can't stop thinking about. And that appeal is successful. Irene Emerson wins.
Nick Capodice: [00:35:39] And at this stage, the Scott's freedom has been through three hearings. They just were going through it over and over again.
Lynne Jackson: [00:35:47] They had many opportunities after the Supreme Court of Missouri said no. They could have stopped their case any time they wanted, especially up until the point of the Missouri Supreme Court decision, which was March 22nd of 1852. After that, they did not have to continue, and there were times when they could have broken it off, but they won. They went forward, and I think that was quite great.
Hannah McCarthy: [00:36:11] At this stage, it is not just their freedom that is at risk. It is the ability to sue for freedom that becomes at risk as well.
Lynne Jackson: [00:36:21] There were other slaves who were talking saying, oh, they ought to drop this case. What if it goes bad? We're all going to be in trouble. So if you think about it from that perspective, it's like they were going to take the flack from even their maybe own community.
Hannah McCarthy: [00:36:36] Now, the Scotts had the support of lawyers, but to me, the most compelling reason to keep pushing this case and taking the risk was much closer at hand.
Lynne Jackson: [00:36:46] The hard part was when it became a national or federal case and a national issue, in which case that's when the hiding of the girls became something they felt they should do. You know, young girls were sold all the time because they were young and fertile. And if you bought them, then you were investing in your future slaves so that they didn't want that. They wanted to keep the family together until they knew the verdict, at least. All right. Why wind your freedom when your girls had been sold away from you and it was about.
Nick Capodice: [00:37:19] So how does this case finally get to the Supreme Court?
Hannah McCarthy: [00:37:23] One important factor is that over the course of these cases and appeals, Emerson's widow, Irene, moves to Massachusetts and marries a congressman and staunch abolitionist named Calvin Chaffee. And Irene's brother, John Sanford, claims ownership of the Scott Sanford, by the way, lives in New York. And the Scotts are still in Saint Louis being hired out.
Nick Capodice: [00:37:47] Okay. There's that name Sanford. Except this case is Dred Scott vs Sandford, right?
Hannah McCarthy: [00:37:54] It is. It's a misspelling that the court couldn't undo. The Supreme Court has actually made a tremendous amount of spelling mistakes over history. And they just stick around.
Nick Capodice: [00:38:04] And Dred Scott ends up suing Sanford for his freedom.
Hannah McCarthy: [00:38:07] He does. And Sanford, being a New Yorker, is actually the reason Dred and Harriet get their case to the Supreme Court. To go before a federal court. A case has to either be a matter of federal law or it has to be between citizens of different states who are also claiming damages of a certain amount. The Scott's lawyer argued that federal courts could hear this case because Sanford was a New Yorker and the Scotts were from Missouri. But when the case does get to the Supreme Court, here is the question Are the Scotts citizens of Missouri, are they citizens of the United States?
Judge John Tunheim: [00:38:44] You know, ultimately, the Supreme Court, again struggled with the jurisdiction question Do we have jurisdiction to hear this case? If Dred and Harriet Scott were not United States citizens, then there was no federal jurisdiction and perhaps no jurisdiction for this case to even move forward. And ultimately, that's what the opinion said in opinion that indicated, first and foremost, there is no jurisdiction here because blacks who are slaves, any black, actually is what the Supreme Court said. Chief Justice Thomas opinion could not be a citizen of the United States.
Hannah McCarthy: [00:39:32] Andy canon. Point number one, Black people, regardless of freedom status, cannot be American citizens and cannot sue in federal courts. Here's Andy canon, Point number two.
Judge John Tunheim: [00:39:46] Tommy's opinion, I think, was well over 50 pages in and of itself. So this is what he did or he declared unconstitutional. That portion of the Missouri compromise, which had prohibited slavery in all the federal territories north and west of Missouri, a critical part of the Missouri compromise in existence for understood by everyone for some 35 years. It declare, he declared also that Congress had no power to regulate slavery in the territories, even though Congress had been doing so even since the Articles of Confederation Congress in 1787, when the Northwest Ordinance was passed, which which guaranteed no slavery in that portion of the United States territories. And then it also went on to say that free blacks could never be considered citizens or protected by the Constitution. That may have been the view of some of the framers, but it certainly was not how the Constitution had been interpreted throughout those many years.
Hannah McCarthy: [00:41:05] Tönnies thinking here were pretty sure that he conferred with President James Buchanan before issuing this opinion was OC. The slave debate is roiling in this country and comes up every time we add a new state and I'm just going to put an end to it. And he is explicit about this in the opinion itself. He quotes the Declaration of Independence. All men are created equal with unalienable rights. And then he writes, The enslaved African race were not intended to be included. He writes that black people, quote, had no rights, which the white man was bound to respect and that they, quote, might justly and lawfully be reduced to slavery for their own benefit. Taney is thinking, I'm going to end this debate now. Black people cannot be citizens, and the framers never intended for them to be. Enslavement is justified and legal conversation over. But of course, in a country intensely divided on the issue of slavery, this opinion was like gasoline on a fire.
Judge John Tunheim: [00:42:15] It was a catalyst for creating the crisis that led to Lincoln's election and then secession, civil war, and the end of slavery. It helped create the timing, I think, more than anything else. I do think it helped create Lincoln as a national politician and figure he based his soon thereafter Senate campaign in 1858 on opposition to this decision and to what what he had done. And it undercut Stephen Douglas, who was a Democrat, of course, and is striving to work with Southern Democrats in that period of time. And then, of course, the 13th and 14th Amendments were later passed, in part to overturn the holdings in Scott versus Sanford.
Nick Capodice: [00:43:05] What year was this opinion issued?
Hannah McCarthy: [00:43:07] This is 1857.
Nick Capodice: [00:43:09] So civil war starts 1861, and then the reconstruction amendments are passed in 1865 and basically overturn the provisions of the Dred Scott decision. So it must have been immediately apparent that this case was wrongly decided.
Hannah McCarthy: [00:43:25] And it has been seen that way ever since.
Judge John Tunheim: [00:43:28] It is quoted. Whenever a justice in modern times thinks something is dreadful, it's dreadful like the Dred Scott decision. It's usually referred to in a dissent. Justices compare it to what they disapprove of and think is awful in the court's current jurisprudence. William Brennan used to use the decision in his opposition to the death penalty and his view that the death penalty was racist. Justice Scalia has used it in dissents, and I think his was in an abortion related case. So it is used and it is universally recognized as completely wrong and bad.
Hannah McCarthy: [00:44:15] We have this appallingly bad decision issued by the Supreme Court, something truly wrong and loathsome, and it has massive reverberations to this day. But I think what can get lost in the Dred Scott decision is the family. Who had the courage to make it happen, to risk everything and to lose. Dred Harriet and their daughters, Eliza and Lizzie, are still enslaved people at the end of this protracted saga. But there is one last element to this story.
Lynne Jackson: [00:44:52] Finally, of course, within three months, the family got their freedom and that was a good thing.
Hannah McCarthy: [00:44:57] It's ultimately determined that Sanford does not even legally own the Scotts. So it's up to Irene and Calvin Chaffee to do something about this. Especially because, remember, Chafee is an abolitionist and his supporters in Massachusetts won't stand for his being an enslaver. But the Chafee's cannot monument or release the Scots. Only if an enslaver lives in the same state as their enslaved. Could they do so. Instead the Chafee's sell the Scots.
Lynne Jackson: [00:45:30] They actually used A quickclaim deed To transfer them. And it quickclaim deed is a property instrument. And so I usually indicate that in order to make it legal, since they were legally their property, then that was the instrument that they had to use. But yes, again, the family was there. They bought them with the express purpose to free them that they did on May 26 of 1857.
Nick Capodice: [00:45:59] So the Scots last owners are the same family who first enslaved Dred Scott.
Hannah McCarthy: [00:46:05] Yeah. And Dred, Harriet, Eliza and Lizzie are free. Dredd got a job as a porter at the Barnum Hotel in Saint Louis. And he passed away 18 months later.
Lynne Jackson: [00:46:18] He died on September 17th, 1858, which ironically is Constitution Day.
Hannah McCarthy: [00:46:26] This is the story of one of the worst rulings in Supreme Court history. It's the story of a man and woman who fought for and did not win their freedom. And that man, when he finally got that freedom, could only enjoy it for a year and a half. But this story is not isolated in time. The inheritors of this case, including Dred Scott's great, great granddaughter and those of Supreme Court Chief Justice Taney, keep it alive and for good reason.
Lynne Jackson: [00:46:59] And what I love about the Taneys is that, you know, they own that story and they don't defend it. You know, they're out and aboveboard about how how it was. And so we're all here to try to make it better. I absolutely do know that we are a reconciled group. So whenever I call Charlie, he says, If you think it's a good idea, I'm there. And we get to share the stories of our ancestors and how these cases, how this case came about. We also share about what we're doing today, and we have a few ideas of how people can work reconciliation within their own communities, in their own families, their own small groups of friends.
Hannah McCarthy: [00:47:38] When Lynne says she is part of a reconciled group, it's actually got a name the Sons and Daughters of Reconciliation. This cohort of descendants who work together on education programs within the Dred Scott Heritage Foundation specifically designed to keep their histories alive and educational.
Lynne Jackson: [00:47:56] That program was always designed to bring our histories together, and that way we could share what we know as individuals, which nobody else knew because they barely were in the history books.
Nick Capodice: [00:48:10] I feel like what Lynne and all these descendants are doing with their stories, keeping history at top of mind, educating the public, encouraging action that flies in the face of this egregious past. It reminds me of what we were talking about at the beginning, this principle of anticanonitself. Dred Scott is enshrined as anticanonbecause we should never forget it. We should always consider it as grave legal decisions are made to ensure that we never again make a decision like it.
Hannah McCarthy: [00:48:42] And the Dred Scott case is almost universally considered the very worst of what can happen when the Supreme Court makes the wrong choice. When we ask why these cases are important to us today in the United States, the anticanonserves as this reminder that we are not infallible, that throughout our history, immoral constitutional interpretations have happened that reflect what some voices of power believe. And then that interpretation gets applied to our most foundational word of law. You cannot merely condemn these cases and leave them in the past. You have to keep talking about them.
Nick Capodice: [00:49:28] If you love this episode and want more. Boy. Howdy. John Henry Boudreaux. Have we got it? You can find all of our many episodes as well as a plethora of resources at our website, civics101podcast.org. You can also follow us on Apple Podcasts or Spotify or wherever you get your podcasts so you'll never miss the Civic's beat.
Hannah McCarthy: [00:49:48] Music In this episode by the Young Philosophers Club Xylo Zico. Chris Zabriskie. Tom starts Bandit Doug Maxwell, The Grand Affair. Emily Sprague Young Carts and the MIT Symphony Orchestra. Archival Supreme Court audio comes from Oh yeah.
Nick Capodice: [00:50:03] Oh yeah, it does.
Hannah McCarthy: [00:50:05] That's why Izzy dot org. This episode of Civics one one was produced by me, Hannah McCarthy and you Nick Capodice.
Nick Capodice: [00:50:13] Our team includes Christina Phillips and Jacqui Fulton. Our executive producer is Rebecca Lavoie.
Hannah McCarthy: [00:50:18] Civics one on one is a production of NHPR New Hampshire Public Radio. Archival Supreme Court audio comes from. Oyez that's.
Nick Capodice: [00:50:26] Oh, sorry. I was excited.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
Just how, ahem, realistic is National Treasure?
In the latest edition of our special series Civics at the Movies, we talk about the National Archives and how they're portrayed in the iconic film National Treasure.
Is there really a map on the back of the Declaration of Independence? Is the security at the Archives really so high-tech? (Spoiler alert: no, and no.)
Our guest is Jessie Kratz, Historian at the National Archives and friend of the show.
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
90% of proposed bills die in committee. What happens in there??
Today's episode consists of two parts. First, the Schoolhouse Rock definition of congressional committees (what they do and why we have them) and second, an exploration of money, power, lobbying, and a secret point system for deciding who gets to be on one. This episode features the voices of Dan Cassino, Professor of Political Science at Farleigh Dickinson University and Leah Rosenstiel, Assistant Professor of Political Science at Vanderbilt University.
Click here for a graphic organizer for students to fill out while they listen to the episode.
For anyone who is interested in the DCCC point system for advancement in the party, here is the article from The Intercept discussing the “dues” requested by members of Congress, and here is the point calculation metric:
committees final.mp3: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.
Nick Capodice:
To all of our listeners out there, I just want to let you know, Hannah and I read every single review of our show.
Hannah McCarthy:
It's true.
Nick Capodice:
And there's one review left by a user called GeekMe, and I look at it probably once a week.
Hannah McCarthy:
Which one is that?
Nick Capodice:
It says, Here, I'll read it. It says, quote, I love the work that you guys do and have learned a lot, but it's become increasingly obvious that the way it's supposed to work is just window dressing or talking a good game compared to how things really get done. Hmm. You've seen that one, right?
Hannah McCarthy:
Yeah,
Nick Capodice:
That review haunts me. It sits like the raven and stares at me when you and I talk about executive orders or declaring war, almost any topic because we've got the rules for how our government works. It's in the tagline for our show. And then there's the way those rules are bent, and I fear that today's episode has the potential to make geek me really frustrated. You're listening to Civics 101, I'm Nick Capodice,
Hannah McCarthy:
I'm Hannah McCarthy,
Nick Capodice:
And today we're talking about committees, congressional committees. What they do, why we have them and who gets to be on them. If you glean one thing from this episode, it should be; Committees are super important. Woodrow Wilson, before he was president, once said "Congress in session is Congress on public exhibition whilst Congress and its committee rooms is Congress at work." And then he went on to say, "I do not know how better to describe our form of government in a single phrase than calling it a government by the chairman of the Standing Committees of Congress." And Hannah, let's just ditch the world of cynicism for a hot second and embrace pure, unbridled optimism.
Dan Cassino:
I'm not. I'm not a cynical person. We're not cynical people talking about government. What do members of Congress want?
Nick Capodice:
You know him. You love him. At least I do. Dan Cassino, Professor of Government and Politics at Fairleigh Dickinson University. Before we talk about what committees are, I want to start with a much broader question. Why do people even enter politics?
Dan Cassino:
We assume everyone in government has something they're trying to do. They've got policy they're trying to push. There's something that they believe is good for our country they're trying to get done. Cool. So that's your that's your biggest need. But how do you get that? Well, first you need to get power. When you get power, then you can do that. So you have to get power and the power will get you to your policy goals. Well, how do you get power? Well you have to get reelected, right. If you don't get reelected, you're never going to be able to do anything. If you're not able to do anything, you don't get any power you're talking about actually get your policy goals done. So members of Congress, we can argue, are single minded, rational seekers of reelection because reelection will get them towards all their other goals. Being on a good committee helps you get reelected.
Hannah McCarthy:
Wait, how does that help you get reelected?
Nick Capodice:
That is something I hope to convey by the end of the show, Hannah. So what I want to do is, you know, we talk about stuff and then we do a break and we ask people to sign up for our newsletter and then we say, OK, we're back.
Hannah McCarthy:
I do.
Nick Capodice:
Yeah. What I'd like to do for the first half of the show is to hold on to this good faith Civics 101 breakdown of committees. And then in the second half, I'm going to talk about money, lobbyists, and a secret point system.
Hannah McCarthy:
A secret point system!
Nick Capodice:
Yeah. So let's start at the very beginning, almost every bill that is written in Congress is referred to a relevant committee. There are 20 permanent standing committees in the House, 16 in the Senate and four joint committees, which have members from both the House and the Senate. Each committee has a chair. Very important role. The chair of a committee always belongs to the party that controls that Chamber of Congress, for example, as of this recording February 2022, the Democratic Party controls both the House and the Senate, meaning all committee chairs are Democrats. And each committee has subcommittees. Those are smaller committees that work in one specific subset of the larger committee, and each of those has a chair. And as to what these committees do, here is Leah Rosenstiel, Professor of political science at Vanderbilt University.
Leah Rosenstiel:
Broadly speaking, right, of course, Congress writes and enacts legislation. But it's a huge body, and it's really hard to have, in the case of the Senate, one hundred people all agreeing on what should go in a bill and even when you're writing the initial bill, what to do. It also really doesn't make sense to have one hundred people all try to become experts on education policy or agriculture policy. Right. So the idea of congressional committees is just a simple division of labor, where you have committees that typically have a jurisdiction specific policy areas they're responsible for. They often do a lot of the drafting of initial legislation bills then pass through committee before getting enacted by the chamber.
Hannah McCarthy:
So the people on these committees do know a little more than the average bear about specific topics.
Nick Capodice:
Yeah, and you often get people serving on committees from states that really care about those topics.
Leah Rosenstiel:
There's some evidence in political science that the committees that you choose to serve on reflect the needs of your constituents. So if you look for example at the Senate Agriculture Committee, that's a committee that typically is made up of members who represent states that have more farming industry, right, that are more rural. And that sort of makes sense. Why would you want to serve on the Senate Agriculture Committee? Because your constituents care about those types of issues.
Nick Capodice:
Hannah, name a state that comes to mind if I say something like cattle farming,
Hannah McCarthy:
I don't know. Maybe Nebraska.
Nick Capodice:
Yeah. Congressman Don Bacon from Nebraska's 2nd District. He serves on the Subcommittee on Livestock and Foreign Agriculture. He's also on three other subcommittees.
Hannah McCarthy:
Oh you can be on more than one subcommittee.
Nick Capodice:
Oh yeah, the House has over one hundred subcommittees, so most members are on at least two
Hannah McCarthy:
All right bills are proposed in both chambers. But who decides which committee those bills go to?
Nick Capodice:
All right, let's do a quick how a bill becomes a law recap. Listen to that full episode, by the way, folks. First up, a bill is proposed.
Dan Cassino:
You have proposed a bill. You put that bill in the hopper. Right now often it's a physical hopper, in the state of Arizona, it's actually, they have a little plastic frog on top of it because it's a hopper right? It hops. So you put that bill in there, the bill that goes the speaker. The speaker then assigns that bill to go to a particular committee. Now, if they want you, they can assign it to more than one committee. But that's seen as a slight against the two committees because it means you don't trust either of these committees.
Nick Capodice:
Technically, the speaker of the House determines which committee or committees get the bill, and in the Senate, it's the presiding officer. But most of the time that decision is made by the House or Senate parliamentarian. That is a job that will get its own episode soon. But in brief, it's a nonpartisan member of Congress who advises everyone else on rules and procedures,
Dan Cassino:
So it gets referred to committee. The committee chair then gets that bill and about 90 percent of the time they just ignore it. They just pay no attention to it. They throw it out. They, you know, they turn to kindling whatever. They pay no attention to whatsoever.
Hannah McCarthy:
Now this is the main thing that I knew about committees, that it is the place that bills go to die.
Nick Capodice:
It's a statistic I never tire of repeating and a very slightly congress to Congress, but usually about two to four percent of proposed bills become laws. 90 percent of proposed bills die in committee.
Dan Cassino:
This means that chairs of committees and subcommittees have enormous amounts of power. That is, if I'm chairing a committee and I don't like a bill, I just ignore it and it's dead. There's nothing anyone can do about it. I just don't report the the bill out.
Hannah McCarthy:
If a bill is in committee and the chair refuses to report it out as and bring it to the floor for a vote, is there no way that Congress can force it out?
Nick Capodice:
There is, and we've mentioned it in other episodes. It's called a discharge petition, but it is exceptionally rare, Dan said. More often, if there's a desire for a bill to make it out of committee, the Speaker of the House just says to the committee chair, Come on, pal. And it comes out.
Hannah McCarthy:
Let's assume, then, that we've got a rare bill that is not ignored by the chair. What happens in the committee chambers with one of those bills?
Nick Capodice:
Well, it sounds like this.
Archival:
I thank you, Mr. Chairman. Let me just reiterate the fact that this bill does not address the issue of wild horses. It deals only with domestic horses slaughtered for human consumption like we call the rule. Mr. Aderholt, Mr. Aderholt. No, Mr. Aguilar. Mr. Aguilar. I, Mr. Amodei. Mr. Amodei. No, Mr. Bishop. Mr. Bishop. Yes, Mr. Coburn.
Nick Capodice:
That is a snip from a five hour video of the House Appropriations Committee marking up a bill from July of twenty seventeen.
Leah Rosenstiel:
If they want to move the bill forward, they might consider holding some hearings where they bring in different people, right, experts, stakeholders, to talk about the issue. Then the committee can do what's called a markup. The committee actually meets and they go through and they offer amendments to the bill and mark it up and make changes.
Dan Cassino:
Sometimes if it's a good bill, they look at it and go, OK, there's an idea here we could take, and they either rewrite the entire bill or they take elements of it and add it to another bill they're going to do anyway. And this is what's the markup process is in the committees and subcommittees in the House. They actually totally rewrite the bill based on their expertise, what they're hearing from lobbyists, what they're hearing from the executive branch.
Leah Rosenstiel:
They then vote on that markup bill. And if it passes right, if it gets a majority of committee members, then they refer it to the floor and then it gets considered and can get passed right. And then if it passes both chambers and get signed by the president, it becomes law.
Hannah McCarthy:
Now this is pretty clear cut to me committees or groups of people in the House and Senate with specific areas of interest and expertise who debate, study, alter and most often ignore proposed legislation.
Nick Capodice:
Bingo a dingo. I'm not going to actually say bingo at Dingo. I thought it was funny at the time.
Hannah McCarthy:
It seems like serving on a committee is a lot of work. Dan said It gives you power, but how?
Nick Capodice:
Oh, OK, OK. I think we've got the Schoolhouse Rock portion all settled here Hannah. So let's take a quick break and jump into the dark waters of who really gets to be on committees and why serving on one can be the most important thing you do in your political career.
Hannah McCarthy:
You're listening to Civics 101. We are talking about committees. But before we get back to it, I want to let listeners know that they might like our newsletter extra credit. It comes out twice a month and Nick assures me that he will provide a list of least desirable to most desirable committees in our next issue. You can subscribe at the top of our website civics101podcast.org. Ok, so as promised, Nick, we're back to it, we're talking committees. Lay it on me, who gets to be on these committees and why does that matter?
Nick Capodice:
I'll start with a brief, brief history. There were small select committees in the late 1800s in America, but in short, our current committee structure is pretty modern. There was a big legislative reorganization in 1946 in response to what opponents of Franklin Roosevelt felt was his overreach of presidential power. And to comprehend committees. Dan Cassino told me there is a term we should learn called information asymmetry.
Dan Cassino:
So this is a concept from economics I think is really important for people to understand why it comes to Congress. So information asymmetry is the problem that arises when the person I'm hiring to do something knows more than I do. So I take my car to the auto shop, if I am dealing with a dishonest auto mechanic, they can say, you know, your frambulator is completely shot. And as a white guy in his 40s, I'm going to Oh yeah, no, I thought it might be the frambulator. You're right, that's how much they're going to cost to fix my frambulator? Because they know more than I do. There's an information asymmetry so they can take advantage of me. So how do I stop that? Well I get a second opinion right? I can learn about these things. The problem Congress faced was the government had gotten so complex with doing so many things that they didn't know... Congress leaders in Congress didn't know everything the government was doing. They didn't know what the president was up to.
Nick Capodice:
President Roosevelt signed over three thousand seven hundred executive orders. Congress just didn't know what he was up to. There were so many orders and bills and agencies that Republican members in Congress in 1946 said enough, and they created the committee system that resembles what we have today, a system that divides the labor of understanding what Congress is doing.
Hannah McCarthy:
All right. So how do we pick who gets to be on these committees?
Nick Capodice:
Here's Leah Rosenstiel again.
Leah Rosenstiel:
It used to be the case that committee chairs were determined solely based on seniority. So if you've been in Congress for a long time, you get to be the committee chair, provided they're in the majority party.
Nick Capodice:
But here's the problem with that seniority system, Hannah. Democrats controlled the House for a solid 40 year stretch, starting in nineteen fifty five. Did you know that? 40 years?
Hannah McCarthy:
I didn't.
Nick Capodice:
And the members of Congress who kept getting reelected and therefore always had seniority were from this group known as Southern Democrats or Dixiecrats. This is a group that was conservative, pro-segregation, anti civil rights legislation and did not share policy positions with the rest of the Democratic Party. So the seniority system was abandoned. A new system has been implemented to choose who goes on what committee, and this is important because some committees are more desirable than others to be on.
Dan Cassino:
So at the high end, you know the House you're going to have four we call AAA committees. These are committees that everyone wants to be on. And so that's Ways and Means. So taxes. Appropriations, spending said taxes, energy and commerce, because, you know, oil companies and all that, and financial services. So those are your AAA committees everyone wants to be on. And they're a scarce resource. Not everyone gets to be on those committees.
Nick Capodice:
The next level down is committees that are pretty good, right? Like like agriculture, especially if you represent a state with a lot of farms. The House Armed Services Committee is pretty great. They say. You can work on bills that use defense spending and you can build a military base in your state and then...
Dan Cassino:
Imagine you've really upset some people. Boy, they don't want you anywhere near anything important. You're going to be on, and yes, the year of our Lord two thousand twenty two we still call it this, Indian Affairs. People don't really want to be on that committee. Not a lot of money and not really a lot you can do in many districts.
Nick Capodice:
By the way, both Dan and Leah said that the problematically named Committee on Indian Affairs is less desirable because it is underfunded, limited in terms of action and sees very little interest from lobbying groups. And below that, at the very bottom of the desirability list are the joint committees.
Dan Cassino:
These are committees that are split between the House and the Senate, so the joint committees mostly exist as a way to hold on to staff members. And so this is going to be things like the Economic Committee, the Joint Committee, Economic Committee and the Joint Taxation Committee.
Nick Capodice:
And Hannah. There are joint committees that I don't think you've even heard of.
Dan Cassino:
I know it sounds like it'd be fun to be on the library committee. It is not fun to be on the library committee. But there is a library committee and there is a printing committee to deal with the actual printing of laws.
Hannah McCarthy:
Come on, there's a printing committee
Nick Capodice:
There is! Chaired by none other than former presidential candidate Senator Amy Klobuchar,
Archival:
The vice chair. I know that Zo can't be there, but maybe we could submit, is this OK? Well, submit her remarks. For the record.
Nick Capodice:
That honestly is the only video I could find of a meeting of the Joint Committee on Printing, a meeting that lasted four minutes.
Archival:
The opinion of the chair. The ayes have it. The rules of the committee are adopted and Senator Wicker You just voted to abolish the filibuster. I'm kidding. That's right. That is not true. That was please strike that from the record.
Nick Capodice:
And finally, there are special committees tied to investigations and ethics. And those aren't terribly desirable because unless you think it's going to get you good media attention, you don't want to be in charge of getting your fellow members of Congress in trouble.
Hannah McCarthy:
Okay, back to those super desirable committees, though. What is it that makes them so special?
Dan Cassino:
The reason they're called AAA is because so many people care about them. There's big money behind them. People are going to want to lobby you, they're going to want to talk to you, and you can charge them a lot of money for access to you. Now, there's very little evidence that members of Congress actually change their votes based on what they hear from lobbyists. But what lobbies can do is put things on your agenda. And so this is what lobbyists are mostly paying for lobby when lobbyists are paying a lot of money. It's not bribes. It is paying for access, right? I'm going to be able to pigeonhole you and talk to you, and that's going to take a $5000 plate dinner. If I'm going to seated next to you and now I can talk to you and tell you about this one little thing I'm worried about. And that puts it on your radar.
Hannah McCarthy:
I know Dan said it's not bribery. It's paying for access, but it just sounds like a lot of bribery.
Leah Rosenstiel:
I should first say that, of course, bribery is illegal in the United States, right? So that's not something that we hope lobbyists are engaging in, right? There are some bribery cases, but right that is illegal. But there is absolutely evidence that members of key committees do get lobbied more right. If you're trying to lobby on an issue and you know that the committee has power over the issue. You should, of course, be lobbying the committee chair and the other committee members.
Dan Cassino:
So if you are one of these committees, you wind up having a lot more access to lobbyists who will pay a lot of money to get in good with you. So that means you can raise a lot of money, which means you can get reelected, which means you get power, which means you get policy.
Nick Capodice:
It makes you look good when you're a chair of a committee that passes a popular piece of legislation, you can then give campaign speeches and say, "I am the one who got this bill through that gave jobs to thousands of folks in Wisconsin." You're just seen as an effective politician if you do that. And one more thing I'll add about these coveted committees. If you had been on one, if you had been a chair, when your career in Congress is over. You can then say, You know what? I know a lot of people who still serve on that committee, and I know a lot about how that committee works. Maybe I could become one of those lobbyists, and they often do. It's referred to as Washington's revolving door of lobbying. And as an example, Billy Tauzin, a former chair of the Energy and Commerce Committee, which deals with promotional standards for drug companies interestingly enough, he became a lobbyist for pharmaceutical companies and made nineteen point three million dollars in four years.
Hannah McCarthy:
Nick, if it's not seniority anymore, who does get to be on these committees?
Nick Capodice:
Both parties have what's called a steering committee, which chooses where people go.
Dan Cassino:
The steering committee answers directly to the speaker and they're going to put people on these committees. People actually apply, say which committee they want to get on to. And the steering committee will entertain those. But it really is up to the speaker who gets on which committees and the way you do. It is in the Democrats. You have a point system.
Hannah McCarthy:
Oh, you weren't joking about the point system?
Nick Capodice:
I wasn't. It's a literal point system. Doing certain actions for your party gets your points. Hosting a fundraiser that gets over fifteen thousand to the DCCC gets you five points. Traveling to a district to campaign to flip it from red to blue gets you three points and so on. Speaker of the House Nancy Pelosi has the most points at two hundred and seventy nine, and lots of folks had zero points.
Dan Cassino:
They've gamified getting on committees and getting favors from leadership. So the big thing that gets you points is giving lots of money to the Democratic Congressional Campaign Committee. So the more money you give to the D Triple C or in the case of Republicans, the Republican Congressional Campaign Committee, the more points you get now Republicans, as far as we know these are all these things are, oh, by the way, secret. They don't tell you this. We just get leaks occasionally. So we actually have leaks from the Democrats in 2019 detailing their entire point system. Republicans, we think, is similar, but we don't actually have the full leaks from them.
Hannah McCarthy:
And how much money are we talking here?
Nick Capodice:
Well, I encourage listeners to read the full member dues report that was leaked in August of twenty nineteen. I'm going to put a link to it on the episode page of our website, civics101podcast.org. But members of those elite committees were expected to pay $600000 a year.
Hannah McCarthy:
What?
Hannah McCarthy:
While we don't have a dues sheet for the National Republican Congressional Committee, a report from the Brookings Institute in 2017 laid out that it was very similar, one former Republican House rep was quoted as saying, "Every time you walk into an NRCC meeting, a giant gosh darn tally sheet is on prominent display that lists your name and how much you've given or haven't. It's a huge wall of shame."
Hannah McCarthy:
Do they pay these dues from, like their personal bank accounts? I don't get it. Where does this money come from?
Nick Capodice:
Yeah. No way, Dan said Washington is a lot like Broadway. You never put your own money on the show. What you do is you transfer money from your campaign funds to the NRCC or D Triple C, or you just hold a fundraiser and say, don't put my name on the check, put the campaign committee on the checks instead.
Hannah McCarthy:
So what happens if a member of Congress does not pay their committee dues?
Dan Cassino:
That means that when it comes to decide who's going to move up into these scare spots that everyone wants? Well, if you haven't paying your dues, it's not going to happen to you. You're not going to move up in the leadership ranks.
Nick Capodice:
Notably, one member of the House has in recent years openly refused to pay her dues to the DCCC.
Archival:
Congresswoman Alexandria Ocasio-Cortez is infuriating the Democrat establishment by refusing to pay party dues while bankrolling left wing challengers to the party.
Nick Capodice:
Member of Congress Alexandria Ocasio-Cortez refused to even register with the D Triple C, and she tweeted quote, I give quite a bit to fellow Dems. We fundraised over 300000 for others more than my dues. But as to how this action will affect her political career, we have absolutely no idea.
Hannah McCarthy:
Alright, geekme, how you feelin?
Nick Capodice:
Civics101@nhpr.org geekme. Drop us a line. .
Nick Capodice:
That's committees, folks, the place where, as Wilson said, Congress is at work. 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 only eats her salad with a fork.
Nick Capodice:
Music in this episode by Jessie Gallagher Junior85 ProleteR, Dyalla, Divkid, Scott Gratton, Corey Gray, Kevin McCloud and the GOAT Chris Zabriskie
Hannah McCarthy:
Civics 101 is a production of NHPR, New Hampshire Public Radio.
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committees final.mp3
Nick Capodice: To all of our listeners out there, I just want to let you know, Hannah and I read every single review of our show.
Hannah McCarthy: It's true.
Nick Capodice: And there's one review left by a user called GeekMe, and I look at it probably once a week.
Hannah McCarthy: Which one is that?
Nick Capodice: It says, Here, I'll read it. It says, quote, I love the work that you guys do and have learned a lot, but it's become increasingly obvious that the way it's supposed to work is just [00:00:30] window dressing or talking a good game compared to how things really get done. Hmm. You've seen that one, right?
Hannah McCarthy: Yeah,
Nick Capodice: That review haunts me. It sits like the raven and stares at me when you and I talk about executive orders or declaring war, almost any topic because we've got the rules for how our government works. It's in the tagline for our show. And then there's the way those rules are bent, and I fear that today's episode has the potential [00:01:00] to make geek me really frustrated. You're listening to Civics 101, I'm Nick Capodice,
Hannah McCarthy: I'm Hannah McCarthy,
Nick Capodice: And today we're talking about committees, congressional committees. What they do, why we have them and who gets to be on them. If you glean one thing from this episode, it should be; Committees are super important. Woodrow Wilson, before he was president, once said "Congress in session is Congress on public exhibition whilst [00:01:30] Congress and its committee rooms is Congress at work." And then he went on to say, "I do not know how better to describe our form of government in a single phrase than calling it a government by the chairman of the Standing Committees of Congress." And Hannah, let's just ditch the world of cynicism for a hot second and embrace pure, unbridled optimism.
Dan Cassino: I'm not. I'm not a cynical person. We're not cynical people talking about government. What do members of Congress want?
Nick Capodice: You know him. You love him. At least I do. [00:02:00] Dan Cassino, Professor of Government and Politics at Fairleigh Dickinson University. Before we talk about what committees are, I want to start with a much broader question. Why do people even enter politics?
Dan Cassino: We assume everyone in government has something they're trying to do. They've got policy they're trying to push. There's something that they believe is good for our country they're trying to get done. Cool. So that's your that's your biggest need. But how do you get that? Well, first you need to get power. When you get power, then you can do that. So you have to get power and the power will get you to your policy [00:02:30] goals. Well, how do you get power? Well you have to get reelected, right. If you don't get reelected, you're never going to be able to do anything. If you're not able to do anything, you don't get any power you're talking about actually get your policy goals done. So members of Congress, we can argue, are single minded, rational seekers of reelection because reelection will get them towards all their other goals. Being on a good committee helps you get reelected.
Hannah McCarthy: Wait, how does that help you get reelected?
Nick Capodice: That is something I hope to convey by the end of the show, Hannah. So what I want to do is, you know, we talk about stuff and then we do a break and we ask people [00:03:00] to sign up for our newsletter and then we say, OK, we're back.
Hannah McCarthy: I do.
Nick Capodice: Yeah. What I'd like to do for the first half of the show is to hold on to this good faith Civics 101 breakdown of committees. And then in the second half, I'm going to talk about money, lobbyists, and a secret point system.
Hannah McCarthy: A secret point system!
Nick Capodice: Yeah. So let's start at the very beginning, almost every bill that is written in Congress is referred to a relevant committee. [00:03:30] There are 20 permanent standing committees in the House, 16 in the Senate and four joint committees, which have members from both the House and the Senate. Each committee has a chair. Very important role. The chair of a committee always belongs to the party that controls that Chamber of Congress, for example, as of this recording February 2022, the Democratic Party controls both the House and the Senate, meaning all committee chairs are Democrats. And each committee has subcommittees. Those are smaller committees that work in one [00:04:00] specific subset of the larger committee, and each of those has a chair. And as to what these committees do, here is Leah Rosenstiel, Professor of political science at Vanderbilt University.
Leah Rosenstiel: Broadly speaking, right, of course, Congress writes and enacts legislation. But it's a huge body, and it's really hard to have, in the case of the Senate, one hundred people all agreeing on what should go in a bill and even when you're writing the initial bill, what to do. It also really doesn't make sense to [00:04:30] have one hundred people all try to become experts on education policy or agriculture policy. Right. So the idea of congressional committees is just a simple division of labor, where you have committees that typically have a jurisdiction specific policy areas they're responsible for. They often do a lot of the drafting of initial legislation bills then pass through committee before getting enacted by the chamber.
Hannah McCarthy: So the people [00:05:00] on these committees do know a little more than the average bear about specific topics.
Nick Capodice: Yeah, and you often get people serving on committees from states that really care about those topics.
Leah Rosenstiel: There's some evidence in political science that the committees that you choose to serve on reflect the needs of your constituents. So if you look for example at the Senate Agriculture Committee, that's a committee that typically is made up of members who represent states that have more [00:05:30] farming industry, right, that are more rural. And that sort of makes sense. Why would you want to serve on the Senate Agriculture Committee? Because your constituents care about those types of issues.
Nick Capodice: Hannah, name a state that comes to mind if I say something like cattle farming,
Hannah McCarthy: I don't know. Maybe Nebraska.
Nick Capodice: Yeah. Congressman Don Bacon from Nebraska's 2nd District. He serves on the Subcommittee on Livestock and Foreign Agriculture. He's also on three other subcommittees.
Hannah McCarthy: Oh you can be on more [00:06:00] than one subcommittee.
Nick Capodice: Oh yeah, the House has over one hundred subcommittees, so most members are on at least two
Hannah McCarthy: All right bills are proposed in both chambers. But who decides which committee those bills go to?
Nick Capodice: All right, let's do a quick how a bill becomes a law recap. Listen to that full episode, by the way, folks. First up, a bill is proposed.
Dan Cassino: You have proposed a bill. You put that bill in the hopper. Right now often it's a physical hopper, in the state of Arizona, it's actually, they have a little plastic frog on top of it because [00:06:30] it's a hopper right? It hops. So you put that bill in there, the bill that goes the speaker. The speaker then assigns that bill to go to a particular committee. Now, if they want you, they can assign it to more than one committee. But that's seen as a slight against the two committees because it means you don't trust either of these committees.
Nick Capodice: Technically, the speaker of the House determines which committee or committees get the bill, and in the Senate, it's the presiding officer. But most of the time that decision is made by the House or Senate parliamentarian. That is a job [00:07:00] that will get its own episode soon. But in brief, it's a nonpartisan member of Congress who advises everyone else on rules and procedures,
Dan Cassino: So it gets referred to committee. The committee chair then gets that bill and about 90 percent of the time they just ignore it. They just pay no attention to it. They throw it out. They, you know, they turn to kindling whatever. They pay no attention to whatsoever.
Hannah McCarthy: Now this is the main thing that I knew about committees, that it is the place that bills go to die.
Nick Capodice: It's a statistic I never tire of repeating and a very slightly congress to Congress, but usually about [00:07:30] two to four percent of proposed bills become laws. 90 percent of proposed bills die in committee.
Dan Cassino: This means that chairs of committees and subcommittees have enormous amounts of power. That is, if I'm chairing a committee and I don't like a bill, I just ignore it and it's dead. There's nothing anyone can do about it. I just don't report the the bill out.
Hannah McCarthy: If a bill is in committee and the chair refuses to report it out as and bring it to the floor for a vote, is there no way that Congress can force it out?
Nick Capodice: There is, and we've mentioned it in other episodes. [00:08:00] It's called a discharge petition, but it is exceptionally rare, Dan said. More often, if there's a desire for a bill to make it out of committee, the Speaker of the House just says to the committee chair, Come on, pal. And it comes out.
Hannah McCarthy: Let's assume, then, that we've got a rare bill that is not ignored by the chair. What happens in the committee chambers with one of those bills?
Nick Capodice: Well, it sounds like this.
Archival: I thank you, Mr. Chairman. Let me just reiterate the fact that this bill does not address [00:08:30] the issue of wild horses. It deals only with domestic horses slaughtered for human consumption like we call the rule. Mr. Aderholt, Mr. Aderholt. No, Mr. Aguilar. Mr. Aguilar. I, Mr. Amodei. Mr. Amodei. No, Mr. Bishop. Mr. Bishop. Yes, Mr. Coburn.
Nick Capodice: That is a snip from a five hour video of the House Appropriations Committee marking up a bill from July of twenty seventeen. [00:09:00]
Leah Rosenstiel: If they want to move the bill forward, they might consider holding some hearings where they bring in different people, right, experts, stakeholders, to talk about the issue. Then the committee can do what's called a markup. The committee actually meets and they go through and they offer amendments to the bill and mark it up and make changes.
Dan Cassino: Sometimes if it's a good bill, they look at it and go, OK, there's an idea here we could take, and they either rewrite the entire bill or they take elements of it and add it to another bill they're going to do anyway. And [00:09:30] this is what's the markup process is in the committees and subcommittees in the House. They actually totally rewrite the bill based on their expertise, what they're hearing from lobbyists, what they're hearing from the executive branch.
Leah Rosenstiel: They then vote on that markup bill. And if it passes right, if it gets a majority of committee members, then they refer it to the floor and then it gets considered and can get passed right. And then if it passes both chambers and get signed by the president, it becomes law.
Hannah McCarthy: Now this is pretty clear cut to me committees [00:10:00] or groups of people in the House and Senate with specific areas of interest and expertise who debate, study, alter and most often ignore proposed legislation.
Nick Capodice: Bingo a dingo. I'm not going to actually say bingo at Dingo. I thought it was funny at the time.
Hannah McCarthy: It seems like serving on a committee is a lot of work. Dan said It gives you power, but how?
Nick Capodice: Oh, OK, OK. I think [00:10:30] we've got the Schoolhouse Rock portion all settled here Hannah. So let's take a quick break and jump into the dark waters of who really gets to be on committees and why serving on one can be the most important thing you do in your political career.
Hannah McCarthy: You're listening to Civics 101. We are talking about committees. But before we get back to it, I want to let listeners know that they might like our newsletter extra credit. It [00:11:00] comes out twice a month and Nick assures me that he will provide a list of least desirable to most desirable committees in our next issue. You can subscribe at the top of our website civics101podcast.org. Ok, so as promised, Nick, we're back to it, we're talking committees. Lay it on me, who gets to be on these committees and why does that matter?
Nick Capodice: I'll start with a brief, brief history. There were small select committees in the late 1800s in America, but in short, [00:11:30] our current committee structure is pretty modern. There was a big legislative reorganization in 1946 in response to what opponents of Franklin Roosevelt felt was his overreach of presidential power. And to comprehend committees. Dan Cassino told me there is a term we should learn called information asymmetry.
Dan Cassino: So this is a concept from economics I think is really important for people to understand why it comes to Congress. So information asymmetry is the problem that arises when the person I'm hiring to do something knows [00:12:00] more than I do. So I take my car to the auto shop, if I am dealing with a dishonest auto mechanic, they can say, you know, your frambulator is completely shot. And as a white guy in his 40s, I'm going to Oh yeah, no, I thought it might be the frambulator. You're right, that's how much they're going to cost to fix my frambulator? Because they know more than I do. There's an information asymmetry so they can take advantage of me. So how do I stop that? Well I get a second opinion right? I can learn about these things. The problem Congress faced was the government had [00:12:30] gotten so complex with doing so many things that they didn't know... Congress leaders in Congress didn't know everything the government was doing. They didn't know what the president was up to.
Nick Capodice: President Roosevelt signed over three thousand seven hundred executive orders. Congress just didn't know what he was up to. There were so many orders and bills and agencies that Republican members in Congress in 1946 said enough, and they created the committee system that resembles what we have today, a system that divides the labor of understanding what Congress [00:13:00] is doing.
Hannah McCarthy: All right. So how do we pick who gets to be on these committees?
Nick Capodice: Here's Leah Rosenstiel again.
Leah Rosenstiel: It used to be the case that committee chairs were determined solely based on seniority. So if you've been in Congress for a long time, you get to be the committee chair, provided they're in the majority party.
Nick Capodice: But here's the problem with that seniority system, Hannah. Democrats controlled the House for a solid 40 year stretch, starting in nineteen fifty five. Did you know that? 40 years?
Hannah McCarthy: I didn't.
Nick Capodice: And the members of Congress [00:13:30] who kept getting reelected and therefore always had seniority were from this group known as Southern Democrats or Dixiecrats. This is a group that was conservative, pro-segregation, anti civil rights legislation and did not share policy positions with the rest of the Democratic Party. So the seniority system was abandoned. A new system has been implemented to choose who goes on what committee, and this is important because some committees are more desirable than others to be on.
Dan Cassino: So [00:14:00] at the high end, you know the House you're going to have four we call AAA committees. These are committees that everyone wants to be on. And so that's Ways and Means. So taxes. Appropriations, spending said taxes, energy and commerce, because, you know, oil companies and all that, and financial services. So those are your AAA committees everyone wants to be on. And they're a scarce resource. Not everyone gets to be on those committees.
Nick Capodice: The next level down is committees that are pretty good, right? Like [00:14:30] like agriculture, especially if you represent a state with a lot of farms. The House Armed Services Committee is pretty great. They say. You can work on bills that use defense spending and you can build a military base in your state and then...
Dan Cassino: Imagine you've really upset some people. Boy, they don't want you anywhere near anything important. You're going to be on, and yes, the year of our Lord two thousand twenty two we still call it this, Indian Affairs. People don't really want to be on that committee. Not a lot of money and not really a lot you can do in many districts. [00:15:00]
Nick Capodice: By the way, both Dan and Leah said that the problematically named Committee on Indian Affairs is less desirable because it is underfunded, limited in terms of action and sees very little interest from lobbying groups. And below that, at the very bottom of the desirability list are the joint committees.
Dan Cassino: These are committees that are split between the House and the Senate, so the joint committees mostly exist as a way to hold on to staff members. And so this is going to be things like the [00:15:30] Economic Committee, the Joint Committee, Economic Committee and the Joint Taxation Committee.
Nick Capodice: And Hannah. There are joint committees that I don't think you've even heard of.
Dan Cassino: I know it sounds like it'd be fun to be on the library committee. It is not fun to be on the library committee. But there is a library committee and there is a printing committee to deal with the actual printing of laws.
Hannah McCarthy: Come on, there's a printing committee
Nick Capodice: There is! Chaired by none other than former presidential candidate Senator Amy Klobuchar,
Archival: The [00:16:00] vice chair. I know that Zo can't be there, but maybe we could submit, is this OK? Well, submit her remarks. For the record.
Nick Capodice: That honestly is the only video I could find of a meeting of the Joint Committee on Printing, a meeting that lasted four minutes.
Archival: The opinion of the chair. The ayes have it. The rules of the committee are adopted and Senator Wicker You just voted to abolish the filibuster. I'm kidding. That's right. That is not true. That was please strike that from the record.
Nick Capodice: And finally, there are special committees [00:16:30] tied to investigations and ethics. And those aren't terribly desirable because unless you think it's going to get you good media attention, you don't want to be in charge of getting your fellow members of Congress in trouble.
Hannah McCarthy: Okay, back to those super desirable committees, though. What is it that makes them so special?
Dan Cassino: The reason they're called AAA is because so many people care about them. There's big money behind them. People are going to want to lobby you, they're going to want to talk to you, and you can charge them a lot of money for access to you. Now, there's very little evidence that members of Congress actually change [00:17:00] their votes based on what they hear from lobbyists. But what lobbies can do is put things on your agenda. And so this is what lobbyists are mostly paying for lobby when lobbyists are paying a lot of money. It's not bribes. It is paying for access, right? I'm going to be able to pigeonhole you and talk to you, and that's going to take a $5000 plate dinner. If I'm going to seated next to you and now I can talk to you and tell you about this one little thing I'm worried about. And that puts it on your radar.
Hannah McCarthy: I know Dan said it's not bribery. It's paying for access, but it just sounds [00:17:30] like a lot of bribery.
Leah Rosenstiel: I should first say that, of course, bribery is illegal in the United States, right? So that's not something that we hope lobbyists are engaging in, right? There are some bribery cases, but right that is illegal. But there is absolutely evidence that members of key committees do get lobbied more right. If you're trying to lobby on an issue and you know that the committee has power over the issue. You should, of course, be lobbying the committee chair and the other committee members.
Dan Cassino: So if you are one of these [00:18:00] committees, you wind up having a lot more access to lobbyists who will pay a lot of money to get in good with you. So that means you can raise a lot of money, which means you can get reelected, which means you get power, which means you get policy.
Nick Capodice: It makes you look good when you're a chair of a committee that passes a popular piece of legislation, you can then give campaign speeches and say, "I am the one who got this bill through that gave jobs to thousands of folks in Wisconsin." You're just seen as an effective politician if you do that. And one more thing I'll add [00:18:30] about these coveted committees. If you had been on one, if you had been a chair, when your career in Congress is over. You can then say, You know what? I know a lot of people who still serve on that committee, and I know a lot about how that committee works. Maybe I could become one of those lobbyists, and they often do. It's referred to as Washington's revolving door of lobbying. And as an example, Billy Tauzin, a former chair of the Energy and Commerce Committee, which deals [00:19:00] with promotional standards for drug companies interestingly enough, he became a lobbyist for pharmaceutical companies and made nineteen point three million dollars in four years.
Hannah McCarthy: Nick, if it's not seniority anymore, who does get to be on these committees?
Nick Capodice: Both parties have what's called a steering committee, which chooses where people go.
Dan Cassino: The steering committee answers directly to the speaker and they're going to put people on these committees. People actually apply, say which committee they want to get on to. And the steering [00:19:30] committee will entertain those. But it really is up to the speaker who gets on which committees and the way you do. It is in the Democrats. You have a point system.
Hannah McCarthy: Oh, you weren't joking about the point system?
Nick Capodice: I wasn't. It's a literal point system. Doing certain actions for your party gets your points. Hosting a fundraiser that gets over fifteen thousand to the DCCC gets you five points. Traveling to a district to campaign to flip it from red to blue gets you three points and so [00:20:00] on. Speaker of the House Nancy Pelosi has the most points at two hundred and seventy nine, and lots of folks had zero points.
Dan Cassino: They've gamified getting on committees and getting favors from leadership. So the big thing that gets you points is giving lots of money to the Democratic Congressional Campaign Committee. So the more money you give to the D Triple C or in the case of Republicans, the Republican Congressional Campaign Committee, the more points you get now Republicans, as far as we know these are all these things are, oh, by the way, secret. They [00:20:30] don't tell you this. We just get leaks occasionally. So we actually have leaks from the Democrats in 2019 detailing their entire point system. Republicans, we think, is similar, but we don't actually have the full leaks from them.
Hannah McCarthy: And how much money are we talking here?
Nick Capodice: Well, I encourage listeners to read the full member dues report that was leaked in August of twenty nineteen. I'm going to put a link to it on the episode page of our website, civics101podcast.org. But members of those elite committees were expected to pay $600000 a year.
Hannah McCarthy: What?
Hannah McCarthy: While we [00:21:00] don't have a dues sheet for the National Republican Congressional Committee, a report from the Brookings Institute in 2017 laid out that it was very similar, one former Republican House rep was quoted as saying, "Every time you walk into an NRCC meeting, a giant gosh darn tally sheet is on prominent display that lists your name and how much you've given or haven't. It's a huge wall of shame."
Hannah McCarthy: Do they pay these dues from, like their personal bank accounts? I don't get it. Where does [00:21:30] this money come from?
Nick Capodice: Yeah. No way, Dan said Washington is a lot like Broadway. You never put your own money on the show. What you do is you transfer money from your campaign funds to the NRCC or D Triple C, or you just hold a fundraiser and say, don't put my name on the check, put the campaign committee on the checks instead.
Hannah McCarthy: So what happens if a member of Congress does not pay their committee dues?
Dan Cassino: That means that when it comes to decide who's going to move up into these scare spots that everyone wants? Well, [00:22:00] if you haven't paying your dues, it's not going to happen to you. You're not going to move up in the leadership ranks.
Nick Capodice: Notably, one member of the House has in recent years openly refused to pay her dues to the DCCC.
Archival: Congresswoman Alexandria Ocasio-Cortez is infuriating the Democrat establishment by refusing to pay party dues while bankrolling left wing challengers to the party.
Nick Capodice: Member of Congress Alexandria Ocasio-Cortez refused to even register with the D Triple C, and she tweeted quote, I give quite a bit [00:22:30] to fellow Dems. We fundraised over 300000 for others more than my dues. But as to how this action will affect her political career, we have absolutely no idea.
Hannah McCarthy: Alright, geekme, how you feelin?
Nick Capodice: Civics101@nhpr.org geekme. Drop us a line. . [00:23:00]
Nick Capodice: That's committees, folks, the place where, as Wilson said, Congress is at work. 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 only eats her salad with a fork.
Nick Capodice: Music in this episode by Jessie Gallagher Junior85 ProleteR, Dyalla, Divkid, Scott Gratton, Corey Gray, Kevin McCloud and the GOAT Chris Zabriskie
Hannah McCarthy: Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:23:30]
Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.
This podcast is a production of New Hampshire Public Radio.
Subscribe to Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.