Federal Courts: Our First Treason Trial (US v Burr)

Today we're opening our new series on famous trials in the Federal Courts. In this case, United States v Burr, the judge and jury had to decide whether to convict former VP Aaron Burr for the crime of treason.

Taking us on the journey are Christine Lamberson, Director of History at the Federal Judicial Center, and Nancy Isenberg, professor at LSU and author of Fallen Founder: The Life of Aaron Burr.  

This trial has everything: Washington Irving, epaulets, a subpoenaed president, and a letter hidden in a shoe.

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Education Resources:

The Federal Judicial Center has numerous resources to teach this case, to students or to judges! Click here for their archive of activities and handouts.

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Federal Courts: US v Burr: Audio automatically transcribed by Sonix

Federal Courts: US v Burr: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Archival:
Whenever you're ready, Mr. Chief Justice. And may it please the Court and please the Court. Mr. Chief Justice. At least the facts of this case appeared in 1777 in Philadelphia...This case concerns the federal drug conspiracy statute...This case presents to this court the questions of whether Miranda versus Arizona and Westover versus.

Nick Capodice:
Hannah. It's no secret. You know, I'm a little bit obsessed with Supreme Court history.

Hannah McCarthy:
Just a little. Yeah, yeah, I know.

Nick Capodice:
The robes, the oyez chant,

Archival:
Oyez, oyez!

Nick Capodice:
Two advocates in a room debating cases with nine justices. It's almost a philosophical exercise.

Hannah McCarthy:
It makes you very emotional.

Nick Capodice:
But it's not the entire picture of our judicial system. Now, you've pored over dozens of landmark Supreme Court cases, and don't you dare deny it. You're a big fan of courtroom dramas.

Hannah McCarthy:
Yep.

Nick Capodice:
So tell me what is missing from the hallowed sessions in the highest court of the land that you get in those courtroom dramas?

Hannah McCarthy:
I mean, everything everything is missing, right? It's it's the laws that are on trial, not the human beings. There's no jury. There's no cross examination, no gavels, which, like, they could at least throw in some gavels. No one's like shouting. I object. Although apparently that doesn't actually happen very often in court. No surprise witnesses. There's no presentation of evidence. There's no ruling by the judge right then and there. Come to think of it, the people involved in the cases usually aren't even in the.

Christine Lamberson:
Every once in a while, like Plessy versus Ferguson. I used to teach U.S. history. So you actually talk about who Homer Plessy was, but you hardly ever talk about the students in Brown versus Board.

Nick Capodice:
This is Christine Lamberson. She works at the Federal Judicial Center, which is the Research and Education Agency of the federal courts. And earlier this year, I spoke to her and some folks from the American Bar Association who asked, hey, why haven't you done any episodes on federal court cases? This is where the action happens. This is where people and the courts meet. And this is Civics 101. I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
And this is the first in a series about historic federal court cases. Today, we're going to talk about the trial of the century, one of the first cases ever related to something very serious. Article three, Section three in the Constitution, treason.

Hannah McCarthy:
Okay, before we get into treason, why are federal courts the place to examine it?

Nick Capodice:
Right. Here's Christine again.

Christine Lamberson:
First of all, the vast majority of cases that go through the federal courts are not going to make it to the Supreme Court. The Supreme Court; certainly currently this is especially true. The Supreme Court currently hears 100 to 150 cases per year, whereas thousands, tens of thousands of court cases are heard by courts of appeals, hundreds of thousands by district courts.

Hannah McCarthy:
This is a good point. I mean, much like the executive branch is not just the president, but also 4 million other Americans. The vast majority of the judiciary is in these lower courts.

Christine Lamberson:
Historically, I think also we can get a sense of how people interact with the courts. When you're looking at a trial, for example, as opposed to a Supreme Court case at the trial, you are going to have individual Americans who are not lawyers arguing about the law, coming and telling their stories and talking about their experiences and interacting with the federal legal system. So if you're looking at a trial, we're going to be able to get a sense of how individual Americans throughout history were interacting with the legal system that we don't tend to get when we look at the Supreme Court level decisions.

Nick Capodice:
And to remind you, the Supreme Court was not always the body who made these decisions on what was and was not constitutional. Yes, they do that now. But initially they had another job and it was in our circuit courts of appeals. You lose a case, you can appeal it up to your circuit court.

Christine Lamberson:
So if you're looking at a federal trial from 1830 or something, it was probably heard in the circuit courts. So they were the main trial courts. They also heard some appeals from the district courts and then the Supreme Court heard appeals from both of those. So it's a little bit of a different system. At that point. The Supreme Court was required to hear a lot of appeals, which is no longer the case. The judges for the circuit courts were the Supreme Court justices writing circuit, and then the district court judges. They didn't have their own judges until late in the 19th century.

Nick Capodice:
And today's case, U.S. v Burr is going to go back to that earlier time when Supreme Court judges rode circuit.

Hannah McCarthy:
Right. This is when justices traveled the country in carriages and got stuck in swamps and got sick and basically put their life on the line for the job, right?

Nick Capodice:
Yeah. That's the time period. One judge was robbed by highway bandits, broke his leg and died from circuit exhaustion before he was 48 years old.

Hannah McCarthy:
Circuit exhaustion. Did you make that up?

Nick Capodice:
No. It's a real thing. It's what it said. I read it on a website.

Hannah McCarthy:
Okay. And you said Burr v us. Are we talking about the Burr?

Nick Capodice:
The Burr. Indeed we sure are.

Archival:
Pardon me. Are you Aaron Burr, sir? That depends. Who's asking. Oh, well, sure, sir.

Nick Capodice:
That is the depiction of Aaron Burr in the wonderful, enormously popular musical Hamilton. Come on the show anytime to set us straight if we mess this up, Mr. Miranda. But this treason trial is not due to the famed duel where he killed Alexander Hamilton.

Hannah McCarthy:
All right, let's do a quick crib notes on Aaron Burr. What did he do, Nick?

Nancy Isenberg:
Yeah, Aaron Burr was an extremely important politician in the early republic, particularly in New York. And what we have to understand about politics in the early republic is that your connection to your state was essential to be a player in federal politics.

Nick Capodice:
That's Nancy Isenberg. She's a professor at Louisiana State University and author of Fallen founder The Life of Aaron Burr. Burr was a lawyer in New York and he lived with his wife, Theodosia. Theodosia dies in 1794 after a long illness and in seven. In 1797 Burr is elected to the U.S. Senate. And as Nancy pointed out, your position as a player in your state was far more important than it is today.

Hannah McCarthy:
Why was your state connection so powerful back then?

Nick Capodice:
Well, for one thing, there were fewer states. Burr was one of 32 U.S. senators, not 100. And when it came to the House. New York had ten seats out of 104 in the House of Representatives. So your state wielded a lot more political power. And Aaron Burr, backed by that power, ran for president in 1800.

Hannah McCarthy:
Oh, that election.

Nick Capodice:
That was such a bonkers election.

Nancy Isenberg:
During the election of 1800. As you know, there's a tie. And that means the decision has to be made in the House of Representatives and there's negotiations.

Hannah McCarthy:
Is this the only tie so far in U.S.. history

Nick Capodice:
So far it is. What happens is written out in the Constitution, Article two, Section one,"If there be more than one who have such majority and have an equal number of votes, then the House of Representatives shall immediately choose by ballot, one of them for president," and that choosing by a ballot was contentious. They voted 36 times in the House without picking a winner.

Nancy Isenberg:
And at that moment, people start accusing Burr of trying to steal the election, which he did not do, and all the evidence that exists, one of the key players who was a federalist and had thrown their support to Burr thinking they could work with him better than Jefferson admits that Burr would never work with them. But what that does is it creates a climate of distrust. And Burr and Jefferson were never really that close. They they respected each other. But Jefferson is really Virginian, you know. He trusts people who are like him, people from Virginia. So what happens is that starts rumors.

Hannah McCarthy:
What kind of rumors are we talking about?

Nick Capodice:
Rumors that Burr was trying to steal the presidency from Jefferson. But in the end, Jefferson won. And because Burr did not win, he served as VP for four years. Burr then ran for governor of New York in April 1804. He lost. And here's where the trouble really starts for him. It came out that his political rival, Alexander Hamilton, apparently said some bad stuff about Burr at a dinner party.

Hannah McCarthy:
What did Hamilton say?

Nick Capodice:
According to someone who attended the dinner? Hamilton referred to Burr as a,"dangerous man."

Hannah McCarthy:
Whoa.

Nick Capodice:
And a feud, a feud of letters between Byrne Hamilton escalated to a duel in Weehawken, New Jersey, where Burr fired a bullet that lodged in Hamilton's spine, killing him, which I first learned about, interestingly, from a got milk commercial in the nineties.

Archival:
(commercial)

Nick Capodice:
Anyways.

Nancy Isenberg:
But essentially that led to the duel. And then the duel. What happens is that Hamilton's reputation before the duel had really dropped because of the Reynolds scandal, the adultery scandal. He was no longer influential in the Adams administration. And suddenly, after the duel, he's turned into a martyr. And then New York and New Jersey decide that they're going to try to prosecute Burr for murder for the duel. New Yorkers eventually drop it. New Jersey pushes it, and it's all because it's Hamilton's friends who push for that. So Burr has to leave New York, and this is when he begins to think about the filibuster.

Hannah McCarthy:
The filibuster?

Nick Capodice:
Yeah.

Hannah McCarthy:
Aaron Burr is thinking about reading Green Eggs and Ham to block a bill from being passed.

Nick Capodice:
No, no, no. Not that filibuster.

Nancy Isenberg:
Filibuster does not mean an effort to stop the passage of legislation in Congress. This was the older it comes from the Dutch and the Spanish, and it refers to organizing a private army as a way to essentially trigger some kind of rebellion and then have the regular army move in or as a way to appropriate more land.

Hannah McCarthy:
Okay. So people would raise a private army to incite political turmoil in other countries lands. Take that land and sell it to the US government.

Nancy Isenberg:
Yeah. And you may think, well that's outrageous, but in fact it wasn't illegal. Which tells us something about how different the early republic was and that Americans acquired so much land trying to provoke conflicts. This is actually how the Mexican war was started. This is remember what the Texas independence was, not Texas independence. It was a group of Americans who invaded and then created rebellion. So this unfortunate pattern was quite common, and Jefferson and Madison were not opposed.

Nick Capodice:
Burr starts filibustering out West in 1805, but the trouble for him starts when the district attorney in Kentucky, Hamilton Davies, tries to arrest him.

Hannah McCarthy:
So there's another Hamilton in this story.

Nick Capodice:
Yeah, there is Joseph Hamilton Davies, who was very upset about the duel with the other Hamilton.

Nancy Isenberg:
So he goes after Burr and tries to prosecute him because he's angry. And I have this seen this in his letter. He's angry because Burr killed Hamilton. But Burr's defended by Henry Clay and himself, of course. So he escapes Kentucky. He's also arrested in Mississippi territory. The jury also finds him not guilty. But the the real danger that I highlight is that the reason that there was so much of a response to what Burr was doing and people were following his actions, and then it gets exaggerated. In the newspapers, like in Kentucky, they were they began to claim he has an army of 2000 and it's in the newspapers. Unfortunately, Jefferson believes the newspapers. He believes it probable that this news of an army being led by Burr is real.

Hannah McCarthy:
Okay. While on principle, I'm not sure how I feel about filibustering, I'm not entirely sure why it's a problem for Burr to be filibustering and leading an army if a bunch of other people were doing the exact same thing.

Nick Capodice:
Yeah. The trouble is, rumors of Burr's army are that it is very large. And Hamilton Davies writes Jefferson to say that Burr intends to form a new independent nation. Now, Thomas Jefferson dismisses these accusations at first, but then he gets a letter from a guy who had been working with Burr: General James Wilkinson.

Nancy Isenberg:
General James... He was he was a real wheeler and dealer. He actually sent a messenger to Jefferson with the secret note hidden in his shoe, supposedly giving him this this very important intelligence.

Hannah McCarthy:
A secret note hidden in a shoe? What is this, Nancy Drew?

Nancy Isenberg:
I mean, talk about spycraft. This is essentially who Wilkinson was. And unfortunately, he ensnared Jefferson. And then Jefferson goes too far.

Nick Capodice:
Jefferson issues a proclamation that various and sundry people are, quote, conspiring and confederating. And when Congress pressures him to be a little more specific who he's talking about, he finally names Aaron Burr as the prime mover of it all. Burr is eventually brought to Virginia under escort, where he is to be put on trial in the Fifth Circuit Court for treason.

Hannah McCarthy:
Why Virginia?

Nick Capodice:
Well, the supposed crime of Burr raising an army happened in a place called Blennerhassett Island, which was part of Virginia. Now it's in West Virginia.

Hannah McCarthy:
Blennerhassett.

Nick Capodice:
Blennerhassett. I could go on at length here about a speech given at the trial called Who Is Blennerhassett, which was recited in public schools for a century later, oddly enough. But I'm going to just skip it all and say that's where the supposed treason took place.

Hannah McCarthy:
All right. Real quick, can we define treason?

Nick Capodice:
Yes. Article three, Section three, in the US Constitution says treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. Now, there's also a second part, Hannah, which turns up in this case that, quote, No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or a confession in open court. So we get to the trial. But first, quick break.

Hannah McCarthy:
And before that break, just a reminder that we make something called extra credit. It's a newsletter. It is delivered every other week into your inbox, and it's where we put all of the good stuff. That we want to put in the episodes, but our editor makes us cut. You can subscribe at our website, civics101podcast.org.

Hannah McCarthy:
Okay. We're back, Nick. Let's get to the trial.

Nick Capodice:
The trial, United States versus Aaron Burr. 1807. Here we go. The charge, one count of treason, one count of high misdemeanor for, "unlawfully, falsely, maliciously and traitorous Lee intending to raise and levy war on the US." The prosecution team, which was led by sitting President Thomas Jefferson, included William Wirt and George Hay.

Hannah McCarthy:
I just want to make sure I understand. Jefferson paused his presidential duties to run a trial.

Nick Capodice:
Well, he wasn't there exactly, but he directed the moves of the prosecutorial team from the White House.

Hannah McCarthy:
Okay, so that's the prosecution side. Who was on the defense?

Nick Capodice:
Here's Nancy Isenberg again.

Nancy Isenberg:
Burr's defense team is what we can call a dream team. First of all, he played a role in his own defense, acting as his own counsel. And Burr was an extremely talented lawyer. Secondly, he had the Virginian, Edmund Randolph, who had been Washington's attorney general and the secretary of state, part of the Randolph dynasty. He, the person who was the real brains on the dream team was a man by the name of John Wickham, who you've probably never heard of. He was the most important and influential lawyer in Virginia at the time.

Nick Capodice:
There was a jury, a grand jury, and the judge who ran the show, none other than chief justice of the Supreme Court, John Marshall. Riding that circuit.

Hannah McCarthy:
That Marshall is everywhere. And by the way, if anyone wants to know more about Justice John Marshall, listen to our episode on the judicial branch. He was chief justice in Marbury v Madison. Or we've got a whole episode on just Marshall.

Nick Capodice:
Remember, Marshall needs two people to testify that Burr planned to levy war on the U.S. and here is where things start to fall apart for the prosecution.

Nancy Isenberg:
What happens is the trial begins and several things happen. First of all, Burr admits at the very beginning, he says, Yes, I was basically engaging in a filibuster. And then what ends up being proven is one of the star witnesses, a guy named William Eaton.

Nick Capodice:
Eaton was also engaged in filibustering and he testified that Burr was going to lead an army to create a new government. But then Burr's defense is like, Hey, Eaton, isn't it true that the federal government gave you $10,000 after your deposition for this case? And Eaton was like, Yeah, but that was for something else. And his testimony loses a lot of credibility.

Nancy Isenberg:
And then they move on to another witness who ends up being a witness for Burr, saying, I never heard Burr ever say anything about trying to topple the West. And then Eaton's charges were that Burr was going to come east and conquer the whole United States and even cut Jefferson's thought. So you can understand why Eaton ended up being a very unreliable witness.

Nick Capodice:
The Keystone witness for the prosecution was that shoe secret smuggler General James Wilkinson, who had evidence a letter in cipher in code from Burr to him that laid out the whole plan.

Nancy Isenberg:
So Wilkinson, the star witness, ends up being a complete failure. Well, first of all, as the editor of the Burr Papers discovered, the letter wasn't even written by Burr. It was written by Jonathan Dayton, who is a friend of Burr, who was involved in the filibuster, senator from New Jersey. And then on top of it, it's quite clear when Wilkinson hands over the letter that he's doctored it. That's because he tried to remove the part where he's implicated.

Hannah McCarthy:
This is not going well for the Jefferson team.

Nick Capodice:
It's not. There's even a funny moment when Wilkinson comes in the courtroom. It was written about by a man reporting on the trial. Washington Irving.

Hannah McCarthy:
Like the author of The Legend of Sleepy Hollow.

Nick Capodice:
Yeah!

Hannah McCarthy:
This trial has everything. So what happens when Wilkinson shows up?

Nick Capodice:
Irving said General Wilkinson moved into the courtroom, quote, swelling like a turkey cock.

Nancy Isenberg:
And he gives this incredible description and he wore this elaborate uniform that his wife had made for him with epaulets and make him look like he's really important when he walks into the court. Washington Irving describes how there's kind of a pause, and then suddenly someone says something to Burr. He looks at Wilkinson, and this is what Irving says he gets. He gives gives one of his classic stares, you know, his his he basically looks at Wilkinson and dismisses him and then turns around and continues conversing with his defense. So Wilkinson's grand entrance is deflated.

Nick Capodice:
Wilkinson, even though he had that nice uniform his wife's sewed, never got to testify because he had doctored the deciphered letter. So it is a shambles. But before I tell you the verdict, there is one civics feature in this case I want to bring up. Something that's been in the news in the last few years, the notion of executive privilege. Aaron Burr said that for this trial to be fair, President Jefferson had to provide documents and evidence. This is the shoe letter, among other things. And Justice Marshall had to decide, can a president be subpoenaed?

Hannah McCarthy:
What did he decide?

Nick Capodice:
He says they can. And you can see Burr's subpoena to President Jefferson in the Library of Congress. But Marshall also said that a president can withhold certain information based on their privilege. So what Jefferson did is he gave some evidence, but not all of what Burr asked for. And this question of can a president withhold specific evidence was brought up again in the wake of Watergate and U.S. v Nixon in 1974.

Archival:
In fact, we go back to Chief Justice Marshall's opinion in the Burr case, where exactly the same suggestion was made by the United States attorney in opposing the subpoena that Burr hadn't specified which portions of General Wilkinson's letter. We're really going to be material...

Hannah McCarthy:
All right. I have a pretty good idea of the outcome of the trial, but give it to me.

Nick Capodice:
The jury came back pretty quickly with the following verdict. We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty. What's interesting is they don't say he's not guilty. They say based on the evidence provided to us, we can't say he's guilty.

Hannah McCarthy:
Well, that's technically how it should always go.

Nick Capodice:
Yeah, that's like...

Hannah McCarthy:
It's based on the evidence.

Nancy Isenberg:
And this is what's interesting. I think Marshall realized he realizes that all of this, the hubbub around Burr had been created by gossip and rumor that what the newspapers printed and then it circulates. And he basically said he was unwilling to allow rumor to convict a man of what he called the most atrocious crime of treason. So he did this was this was a very important thing separating the difference, fact versus fantasy, something Americans need to learn today. This is what John Marshall was saying. It has to be based on evidence. You have to have real witnesses. It has to be compelling evidence, particularly if you're going to make the incredible charge that he has committed treason. Because what is the punishment for treason? Death.

Hannah McCarthy:
All right. So Burr's found not guilty. What happens next?

Nick Capodice:
Aaron Burr realizes he's not going to have much success. He's not going to have a big comeback politically. He goes to Europe for four years. He becomes best friends with the philosopher Jeremy Bentham.

Hannah McCarthy:
You're kidding me. The philosopher Bentham?

Nick Capodice:
Yeah, the very same. And Burr has dreams about filibustering again in Mexico or Florida, but that never comes to fruition.

Nancy Isenberg:
The weird thing about Burr is, given everything that's happened to him, he doesn't kind of go into a depression. He maintains connections. He has a disastrous second marriage, which was a major mistake for him, where he thought he was going to be able to recoup some of his clients. He's always struggling with finances, as they all were. Like Hamilton, Jefferson, struggling with debt. He's but he's never a player again. He's never going to wield political power, run for office. That whole part of his life is over. If we think about this trial, it's a perfect example of how a president abuses their power. Jefferson and most scholars agree with this. Jefferson stepped over a line. As I said, even John Adams was shocked by Jefferson's declaration that Burr was guilty.

Nick Capodice:
Jefferson, who was not a fan of Chief Justice Marshall and decidedly not a fan of the decision to acquit Burr. After the trial, he proposed an amendment to the Constitution where a president could remove federal judges by order of Congress. The Constitution, as written, says that judges can only be impeached by a vote in the House and then removed by a trial in the Senate. Jefferson wanted to make it easier than that, and he claimed that these judges were acting, quote, independent of the nation. Now, this didn't happen. Marshall was not impeached and removed, but Jefferson tried.

Hannah McCarthy:
What's interesting to me about this case is that we have a contested election. Allegations of treason, overreach of executive power, and a president who feels the judicial branch has too much power. 220 years have passed and all of this is still going on.

Nick Capodice:
Yeah. And Nancy said to me that if there's one thing we should focus on, it's Jefferson's involvement in the case. You got a president targeting a political enemy and telling the American people that that person is guilty.

Nancy Isenberg:
So when the president makes that kind of public declaration, they can provoke violence or in this case, bias the entire proceeding, which is what it ended up working against Jefferson because of Burr's legal team that they were so effective in just shooting down the really weak case that the prosecution had. But it could have gone if it had been someone else. And it's one of those rare moments on the courtroom proceedings really work the way they should, as opposed to just people following their confirmed biases or their distorted way or just following Jefferson's lead.

Nick Capodice:
That’s it for this episode on our first federal treason trial, special thanks to the American Bar Association for suggesting this series, visit the page for this episode on our website civics101podcast.org (also a link in the show notes) to see some wonderful teaching resources for this trial courtesy of the Federal Judicial Center. This episode was written and produced by me Nick Capodice with Hannah McCarthy, our staff includes Jacqui Fulton, Christina Phillips is our Senior Producer and Rebecca Lavoie our executive producer. Music in this episode by Chris Zabriskie, Bonnie Grace, Margarita, Peter Sandberg, Strom, Nylonia, Christian Anderson, Stationary Sign, Jahzaar, Needledrop Records, Blue Dot Sessions, Dyalla, Scott Holmes, and Kevin McCloud. Civics 101 is a production of NHPR New Hampshire Public Radio

Nick Capodice:
BLENNERHASSETT

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Transcript

Archival: Whenever you're ready, Mr. Chief Justice. And may it please the Court and please the Court. Mr. Chief Justice. At least the facts of this case appeared in 1777 in Philadelphia...This case concerns the federal drug conspiracy statute...This case presents to this court the questions of whether Miranda versus Arizona and Westover versus.

Nick Capodice: Hannah. It's no secret. You know, I'm a little bit obsessed with Supreme [00:00:30] Court history.

Hannah McCarthy: Just a little. Yeah, yeah, I know.

Nick Capodice: The robes, the oyez chant,

Archival: Oyez, oyez!

Nick Capodice: Two advocates in a room debating cases with nine justices. It's almost a philosophical exercise.

Hannah McCarthy: It makes you very emotional.

Nick Capodice: But it's not the entire picture of our judicial system. Now, you've pored over dozens of landmark Supreme Court cases, and don't you dare deny it. [00:01:00] You're a big fan of courtroom dramas.

Hannah McCarthy: Yep.

Nick Capodice: So tell me what is missing from the hallowed sessions in the highest court of the land that you get in those courtroom dramas?

Hannah McCarthy: I mean, everything everything is missing, right? It's it's the laws that are on trial, not the human beings. There's no jury. There's no cross examination, no gavels, which, like, they could at least throw in some gavels. No one's like shouting. I object. Although apparently that doesn't actually happen very often in court. No surprise witnesses. [00:01:30] There's no presentation of evidence. There's no ruling by the judge right then and there. Come to think of it, the people involved in the cases usually aren't even in the.

Christine Lamberson: Every once in a while, like Plessy versus Ferguson. I used to teach U.S. history. So you actually talk about who Homer Plessy was, but you hardly ever talk about the students in Brown versus Board.

Nick Capodice: This is Christine Lamberson. She works at the Federal Judicial Center, which is the Research and Education [00:02:00] Agency of the federal courts. And earlier this year, I spoke to her and some folks from the American Bar Association who asked, hey, why haven't you done any episodes on federal court cases? This is where the action happens. This is where people and the courts meet. And this is Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And this is the first in a series about historic federal court cases. Today, we're going to talk about the trial of [00:02:30] the century, one of the first cases ever related to something very serious. Article three, Section three in the Constitution, treason.

Hannah McCarthy: Okay, before we get into treason, why are federal courts the place to examine it?

Nick Capodice: Right. Here's Christine again.

Christine Lamberson: First of all, the vast majority of cases that go through the federal courts are not going to make it to the Supreme Court. The Supreme Court; certainly currently this is especially true. The Supreme Court currently hears 100 [00:03:00] to 150 cases per year, whereas thousands, tens of thousands of court cases are heard by courts of appeals, hundreds of thousands by district courts.

Hannah McCarthy: This is a good point. I mean, much like the executive branch is not just the president, but also 4 million other Americans. The vast majority of the judiciary is in these lower courts.

Christine Lamberson: Historically, I think also we can get a sense of how [00:03:30] people interact with the courts. When you're looking at a trial, for example, as opposed to a Supreme Court case at the trial, you are going to have individual Americans who are not lawyers arguing about the law, coming and telling their stories and talking about their experiences and interacting with the federal legal system. So if you're looking at a trial, we're going to be able to get a sense of how individual [00:04:00] Americans throughout history were interacting with the legal system that we don't tend to get when we look at the Supreme Court level decisions.

Nick Capodice: And to remind you, the Supreme Court was not always the body who made these decisions on what was and was not constitutional. Yes, they do that now. But initially they had another job and it was in our circuit courts of appeals. You lose a case, you can appeal it up to your circuit court.

Christine Lamberson: So if you're looking at a federal trial [00:04:30] from 1830 or something, it was probably heard in the circuit courts. So they were the main trial courts. They also heard some appeals from the district courts and then the Supreme Court heard appeals from both of those. So it's a little bit of a different system. At that point. The Supreme Court was required to hear a lot of appeals, which is no longer the case. The judges for the circuit courts were the Supreme Court justices writing circuit, and then the district court judges. They didn't have their own judges until late [00:05:00] in the 19th century.

Nick Capodice: And today's case, U.S. v Burr is going to go back to that earlier time when Supreme Court judges rode circuit.

Hannah McCarthy: Right. This is when justices traveled the country in carriages and got stuck in swamps and got sick and basically put their life on the line for the job, right?

Nick Capodice: Yeah. That's the time period. One judge was robbed by highway bandits, broke his leg and died from circuit exhaustion before he was 48 years old.

Hannah McCarthy: Circuit exhaustion. Did you make that up?

Nick Capodice: No. It's a real thing. [00:05:30] It's what it said. I read it on a website.

Hannah McCarthy: Okay. And you said Burr v us. Are we talking about the Burr?

Nick Capodice: The Burr. Indeed we sure are.

Archival: Pardon me. Are you Aaron Burr, sir? That depends. Who's asking. Oh, well, sure, sir.

Nick Capodice: That is the depiction of Aaron Burr in the wonderful, enormously popular musical Hamilton. Come on the show anytime to set us straight if we mess this up, Mr. Miranda. But this treason trial is not due to the famed duel where he killed Alexander Hamilton.

Hannah McCarthy: All right, [00:06:00] let's do a quick crib notes on Aaron Burr. What did he do, Nick?

Nancy Isenberg: Yeah, Aaron Burr was an extremely important politician in the early republic, particularly in New York. And what we have to understand about politics in the early republic is that your connection to your state was essential to be a player in federal politics.

Nick Capodice: That's Nancy Isenberg. She's a professor at Louisiana State University and author of Fallen founder The Life of Aaron Burr. Burr was a lawyer [00:06:30] in New York and he lived with his wife, Theodosia. Theodosia dies in 1794 after a long illness and in seven. In 1797 Burr is elected to the U.S. Senate. And as Nancy pointed out, your position as a player in your state was far more important than it is today.

Hannah McCarthy: Why was your state connection so powerful back then?

Nick Capodice: Well, for one thing, there were fewer states. Burr was one of 32 U.S. senators, not 100. And when it came to the House. [00:07:00] New York had ten seats out of 104 in the House of Representatives. So your state wielded a lot more political power. And Aaron Burr, backed by that power, ran for president in 1800.

Hannah McCarthy: Oh, that election.

Nick Capodice: That was such a bonkers election.

Nancy Isenberg: During the election of 1800. As you know, there's a tie. And that means the decision has to be made in the House of Representatives and there's negotiations.

Hannah McCarthy: Is this the only tie so far in U.S.. history

Nick Capodice: So far it is. What [00:07:30] happens is written out in the Constitution, Article two, Section one,"If there be more than one who have such majority and have an equal number of votes, then the House of Representatives shall immediately choose by ballot, one of them for president," and that choosing by a ballot was contentious. They voted 36 times in the House without picking a winner.

Nancy Isenberg: And at that moment, people start accusing Burr of trying to steal the election, which he did not do, and all the evidence that exists, one of the key players who was [00:08:00] a federalist and had thrown their support to Burr thinking they could work with him better than Jefferson admits that Burr would never work with them. But what that does is it creates a climate of distrust. And Burr and Jefferson were never really that close. They they respected each other. But Jefferson is really Virginian, you know. He trusts people who are like him, people from Virginia. So what happens is that starts rumors.

Hannah McCarthy: What kind of rumors are we talking about?

Nick Capodice: Rumors that Burr was [00:08:30] trying to steal the presidency from Jefferson. But in the end, Jefferson won. And because Burr did not win, he served as VP for four years. Burr then ran for governor of New York in April 1804. He lost. And here's where the trouble really starts for him. It came out that his political rival, Alexander Hamilton, apparently said some bad stuff about Burr at a dinner party.

Hannah McCarthy: What did Hamilton say?

Nick Capodice: According to someone who attended the dinner? Hamilton referred [00:09:00] to Burr as a,"dangerous man."

Hannah McCarthy: Whoa.

Nick Capodice: And a feud, a feud of letters between Byrne Hamilton escalated to a duel in Weehawken, New Jersey, where Burr fired a bullet that lodged in Hamilton's spine, killing him, which I first learned about, interestingly, from a got milk commercial in the nineties.

Archival: (commercial)

Nick Capodice: Anyways. [00:09:30]

Nancy Isenberg: But essentially that led to the duel. And then the duel. What happens is that Hamilton's reputation before the duel had really dropped because of the Reynolds scandal, the adultery scandal. He was no longer influential in the Adams administration. And suddenly, after the duel, he's turned into a martyr. And then New York and New Jersey decide that they're going to [00:10:00] try to prosecute Burr for murder for the duel. New Yorkers eventually drop it. New Jersey pushes it, and it's all because it's Hamilton's friends who push for that. So Burr has to leave New York, and this is when he begins to think about the filibuster.

Hannah McCarthy: The filibuster?

Nick Capodice: Yeah.

Hannah McCarthy: Aaron Burr is thinking about reading Green Eggs and Ham to block a bill from being passed.

Nick Capodice: No, no, no. Not that filibuster.

Nancy Isenberg: Filibuster does not mean an effort [00:10:30] to stop the passage of legislation in Congress. This was the older it comes from the Dutch and the Spanish, and it refers to organizing a private army as a way to essentially trigger some kind of rebellion and then have the regular army move in or as a way to appropriate more land.

Hannah McCarthy: Okay. So people would raise a private army to incite political turmoil [00:11:00] in other countries lands. Take that land and sell it to the US government.

Nancy Isenberg: Yeah. And you may think, well that's outrageous, but in fact it wasn't illegal. Which tells us something about how different the early republic was and that Americans acquired so much land trying to provoke conflicts. This is actually how the Mexican war was started. This is remember what the Texas independence [00:11:30] was, not Texas independence. It was a group of Americans who invaded and then created rebellion. So this unfortunate pattern was quite common, and Jefferson and Madison were not opposed.

Nick Capodice: Burr starts filibustering out West in 1805, but the trouble for him starts when the district attorney in Kentucky, Hamilton Davies, tries to arrest him.

Hannah McCarthy: So there's another Hamilton in this story.

Nick Capodice: Yeah, there is Joseph Hamilton Davies, who was very upset about the duel with the other Hamilton. [00:12:00]

Nancy Isenberg: So he goes after Burr and tries to prosecute him because he's angry. And I have this seen this in his letter. He's angry because Burr killed Hamilton. But Burr's defended by Henry Clay and himself, of course. So he escapes Kentucky. He's also arrested in Mississippi territory. The jury also finds him not guilty. But the the real danger that I highlight is that the reason that there [00:12:30] was so much of a response to what Burr was doing and people were following his actions, and then it gets exaggerated. In the newspapers, like in Kentucky, they were they began to claim he has an army of 2000 and it's in the newspapers. Unfortunately, Jefferson believes the newspapers. He believes it probable that this news of an army being led by Burr is real.

Hannah McCarthy: Okay. While on principle, I'm not sure how I feel about filibustering, I'm not entirely sure why it's a problem for [00:13:00] Burr to be filibustering and leading an army if a bunch of other people were doing the exact same thing.

Nick Capodice: Yeah. The trouble is, rumors of Burr's army are that it is very large. And Hamilton Davies writes Jefferson to say that Burr intends to form a new independent nation. Now, Thomas Jefferson dismisses these accusations at first, but then he gets a letter from a guy who had been working with Burr: General James Wilkinson.

Nancy Isenberg: General James... He was he was a real [00:13:30] wheeler and dealer. He actually sent a messenger to Jefferson with the secret note hidden in his shoe, supposedly giving him this this very important intelligence.

Hannah McCarthy: A secret note hidden in a shoe? What is this, Nancy Drew?

Nancy Isenberg: I mean, talk about spycraft. This is essentially who Wilkinson was. And unfortunately, he ensnared Jefferson. And then Jefferson goes too far.

Nick Capodice: Jefferson issues a proclamation that various and sundry people [00:14:00] are, quote, conspiring and confederating. And when Congress pressures him to be a little more specific who he's talking about, he finally names Aaron Burr as the prime mover of it all. Burr is eventually brought to Virginia under escort, where he is to be put on trial in the Fifth Circuit Court for treason.

Hannah McCarthy: Why Virginia?

Nick Capodice: Well, the supposed crime of Burr raising an army happened in a place called Blennerhassett Island, which was part of Virginia. Now it's in West Virginia. [00:14:30]

Hannah McCarthy: Blennerhassett.

Nick Capodice: Blennerhassett. I could go on at length here about a speech given at the trial called Who Is Blennerhassett, which was recited in public schools for a century later, oddly enough. But I'm going to just skip it all and say that's where the supposed treason took place.

Hannah McCarthy: All right. Real quick, can we define treason?

Nick Capodice: Yes. Article three, Section three, in the US Constitution says treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid [00:15:00] and comfort. Now, there's also a second part, Hannah, which turns up in this case that, quote, No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or a confession in open court. So we get to the trial. But first, quick break.

Hannah McCarthy: And before that break, just a reminder that we make something called extra credit. It's a newsletter. It is delivered every other week into your inbox, and it's where we put all of the good stuff. That we want to put in the episodes, but our editor makes us cut. You can subscribe [00:15:30] at our website, civics101podcast.org.

Hannah McCarthy: Okay. We're back, Nick. Let's get to the trial.

Nick Capodice: The trial, United States versus Aaron Burr. 1807. Here we go. The charge, one count of treason, one count of high misdemeanor for, "unlawfully, falsely, maliciously and traitorous Lee intending to raise and levy war on the US." The [00:16:00] prosecution team, which was led by sitting President Thomas Jefferson, included William Wirt and George Hay.

Hannah McCarthy: I just want to make sure I understand. Jefferson paused his presidential duties to run a trial.

Nick Capodice: Well, he wasn't there exactly, but he directed the moves of the prosecutorial team from the White House.

Hannah McCarthy: Okay, so that's the prosecution side. Who was on the defense?

Nick Capodice: Here's Nancy Isenberg again.

Nancy Isenberg: Burr's defense team is what we can call a dream team. First of all, he played a role in his own defense, acting [00:16:30] as his own counsel. And Burr was an extremely talented lawyer. Secondly, he had the Virginian, Edmund Randolph, who had been Washington's attorney general and the secretary of state, part of the Randolph dynasty. He, the person who was the real brains on the dream team was a man by the name of John Wickham, who you've probably never heard of. He was the most important and influential lawyer in Virginia at the time.

Nick Capodice: There was a jury, a grand jury, and the judge who ran the show, [00:17:00] none other than chief justice of the Supreme Court, John Marshall. Riding that circuit.

Hannah McCarthy: That Marshall is everywhere. And by the way, if anyone wants to know more about Justice John Marshall, listen to our episode on the judicial branch. He was chief justice in Marbury v Madison. Or we've got a whole episode on just Marshall.

Nick Capodice: Remember, Marshall needs two people to testify that Burr planned to levy war on the U.S. and here is where things start to fall apart for the prosecution.

Nancy Isenberg: What happens is the [00:17:30] trial begins and several things happen. First of all, Burr admits at the very beginning, he says, Yes, I was basically engaging in a filibuster. And then what ends up being proven is one of the star witnesses, a guy named William Eaton.

Nick Capodice: Eaton was also engaged in filibustering and he testified that Burr was going to lead an army to create a new government. But then Burr's defense is like, Hey, Eaton, isn't it true that the federal government gave you $10,000 after [00:18:00] your deposition for this case? And Eaton was like, Yeah, but that was for something else. And his testimony loses a lot of credibility.

Nancy Isenberg: And then they move on to another witness who ends up being a witness for Burr, saying, I never heard Burr ever say anything about trying to topple the West. And then Eaton's charges were that Burr was going to come east and conquer the whole United States and even cut Jefferson's thought. So you can understand why Eaton ended up being a very unreliable witness. [00:18:30]

Nick Capodice: The Keystone witness for the prosecution was that shoe secret smuggler General James Wilkinson, who had evidence a letter in cipher in code from Burr to him that laid out the whole plan.

Nancy Isenberg: So Wilkinson, the star witness, ends up being a complete failure. Well, first of all, as the editor of the Burr Papers discovered, the letter wasn't even written by Burr. It was written by Jonathan Dayton, who is a friend of Burr, [00:19:00] who was involved in the filibuster, senator from New Jersey. And then on top of it, it's quite clear when Wilkinson hands over the letter that he's doctored it. That's because he tried to remove the part where he's implicated.

Hannah McCarthy: This is not going well for the Jefferson team.

Nick Capodice: It's not. There's even a funny moment when Wilkinson comes in the courtroom. It was written about by a man reporting on the trial. Washington Irving.

Hannah McCarthy: Like the author of The Legend of Sleepy Hollow.

Nick Capodice: Yeah!

Hannah McCarthy: This trial has everything. So what happens when Wilkinson [00:19:30] shows up?

Nick Capodice: Irving said General Wilkinson moved into the courtroom, quote, swelling like a turkey cock.

Nancy Isenberg: And he gives this incredible description and he wore this elaborate uniform that his wife had made for him with epaulets and make him look like he's really important when he walks into the court. Washington Irving describes how there's kind of a pause, and then suddenly someone says something to Burr. He looks [00:20:00] at Wilkinson, and this is what Irving says he gets. He gives gives one of his classic stares, you know, his his he basically looks at Wilkinson and dismisses him and then turns around and continues conversing with his defense. So Wilkinson's grand entrance is deflated.

Nick Capodice: Wilkinson, even though he had that nice uniform his wife's sewed, never got to testify because he had doctored the deciphered letter. So [00:20:30] it is a shambles. But before I tell you the verdict, there is one civics feature in this case I want to bring up. Something that's been in the news in the last few years, the notion of executive privilege. Aaron Burr said that for this trial to be fair, President Jefferson had to provide documents and evidence. This is the shoe letter, among other things. And Justice Marshall had to decide, can a president be subpoenaed?

Hannah McCarthy: What did he decide?

Nick Capodice: He says they can. [00:21:00] And you can see Burr's subpoena to President Jefferson in the Library of Congress. But Marshall also said that a president can withhold certain information based on their privilege. So what Jefferson did is he gave some evidence, but not all of what Burr asked for. And this question of can a president withhold specific evidence was brought up again in the wake of Watergate and U.S. v Nixon in 1974.

Archival: In fact, we go back to Chief Justice Marshall's [00:21:30] opinion in the Burr case, where exactly the same suggestion was made by the United States attorney in opposing the subpoena that Burr hadn't specified which portions of General Wilkinson's letter. We're really going to be material...

Hannah McCarthy: All right. I have a pretty good idea of the outcome of the trial, but give it to me.

Nick Capodice: The jury came back pretty quickly with the following verdict. We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty. [00:22:00] What's interesting is they don't say he's not guilty. They say based on the evidence provided to us, we can't say he's guilty.

Hannah McCarthy: Well, that's technically how it should always go.

Nick Capodice: Yeah, that's like...

Hannah McCarthy: It's based on the evidence.

Nancy Isenberg: And this is what's interesting. I think Marshall realized he realizes that all of this, the hubbub around Burr had been created by gossip and rumor that what the newspapers printed and [00:22:30] then it circulates. And he basically said he was unwilling to allow rumor to convict a man of what he called the most atrocious crime of treason. So he did this was this was a very important thing separating the difference, fact versus fantasy, something Americans need to learn today. This is what John Marshall was saying. It has to be based on evidence. You have to have real witnesses. It has to be compelling evidence, particularly if you're going to make the incredible charge that he has committed treason. Because [00:23:00] what is the punishment for treason? Death.

Hannah McCarthy: All right. So Burr's found not guilty. What happens next?

Nick Capodice: Aaron Burr realizes he's not going to have much success. He's not going to have a big comeback politically. He goes to Europe for four years. He becomes best friends with the philosopher Jeremy Bentham.

Hannah McCarthy: You're kidding me. The philosopher Bentham?

Nick Capodice: Yeah, the very same. And Burr has dreams about filibustering again in Mexico or Florida, but that never comes to [00:23:30] fruition.

Nancy Isenberg: The weird thing about Burr is, given everything that's happened to him, he doesn't kind of go into a depression. He maintains connections. He has a disastrous second marriage, which was a major mistake for him, where he thought he was going to be able to recoup some of his clients. He's always struggling with finances, as they all were. Like Hamilton, Jefferson, struggling with debt. He's but he's never a player again. He's never going to [00:24:00] wield political power, run for office. That whole part of his life is over. If we think about this trial, it's a perfect example of how a president abuses their power. Jefferson and most scholars agree with this. Jefferson stepped over a line. As I said, even John Adams was shocked by Jefferson's declaration that Burr was guilty.

Nick Capodice: Jefferson, [00:24:30] who was not a fan of Chief Justice Marshall and decidedly not a fan of the decision to acquit Burr. After the trial, he proposed an amendment to the Constitution where a president could remove federal judges by order of Congress. The Constitution, as written, says that judges can only be impeached by a vote in the House and then removed by a trial in the Senate. Jefferson wanted to make it easier than that, and he claimed that these judges were acting, quote, independent of the nation. Now, this [00:25:00] didn't happen. Marshall was not impeached and removed, but Jefferson tried.

Hannah McCarthy: What's interesting to me about this case is that we have a contested election. Allegations of treason, overreach of executive power, and a president who feels the judicial branch has too much power. 220 years have passed and all of this is still going on.

Nick Capodice: Yeah. And Nancy said to me that if there's one thing we should focus on, it's Jefferson's involvement in the case. You [00:25:30] got a president targeting a political enemy and telling the American people that that person is guilty.

Nancy Isenberg: So when the president makes that kind of public declaration, they can provoke violence or in this case, bias the entire proceeding, which is what it ended up working against Jefferson because of Burr's legal team that they were so effective in just shooting down the really weak case that the prosecution had. But [00:26:00] it could have gone if it had been someone else. And it's one of those rare moments on the courtroom proceedings really work the way they should, as opposed to just people following their confirmed biases or their distorted way or just following Jefferson's lead.

Nick Capodice: That’s it for this episode on our first federal treason trial, special thanks to the American Bar Association for suggesting this series, visit the page for this episode on our website civics101podcast.org (also a link in the show notes) to see some wonderful teaching resources for this trial courtesy of the Federal Judicial Center. This episode was written and produced by me Nick Capodice with Hannah McCarthy, our staff includes Jacqui Fulton, Christina Phillips is our Senior Producer and Rebecca Lavoie our executive producer. Music in this episode by Chris Zabriskie, Bonnie Grace, Margarita, Peter Sandberg, Strom, Nylonia, Christian Anderson, Stationary Sign, Jahzaar, Needledrop Records, Blue Dot Sessions, Dyalla, Scott Holmes, and Kevin McCloud. Civics 101 is a production of NHPR New Hampshire Public Radio [00:27:00]

Nick Capodice: BLENNERHASSETT

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Made possible in part by the Corporation for Public Broadcasting.

Hello, World!

The 1965 Voting Rights Act: Where Does It Stand?

CLICK HERE TO LISTEN TO AND FOLLOW CIVICS 101 ON YOUR FAVORITE PODCAST APP.

We needed an Act of Congress to enforce the Fifteenth Amendment. Is it still doing its job? 

It came after decades of discrimination, violence and disenfranchisement -- President Lyndon B. Johnson signed the Voting Rights Act in 1965, "an Act to enforce the fifteenth amendment to the Constitution of the United States." That Act worked. In the decades since, though, states and the Supreme Court have changed what that Act means and can do.

Our guides to this sweeping legislation are Sonni Waknin of the UCLA Voting Rights Project and Gary May, author of Bending Towards Justice: The Voting Rights Act and the Transformation of American Democracy.

Listen here:

Transcript:

Sonni Waknin: [00:00:01] But. I took this class, called We the People in high school. It's a national competition class. And after the competition kind of aspect is over you. In my class, we just learned about moot court and redistricting and gerrymandering and civil rights law and civil liberties.

Hannah McCarthy: [00:00:25] This is Sonni Waknin.

Sonni Waknin: [00:00:26] I'm the program manager and Voting Rights Council at the UCLA Voting Rights Project.

Nick Capodice: [00:00:31] So back in the day, Sonni was a we the people are we know a lot about we the people.

Hannah McCarthy: [00:00:36] We do indeed. We get to judge it every year in New Hampshire. It's a competition where high school students expound on the meaning, virtues and pitfalls of the Constitution and its application. So Sonni is in high school, very much tuned into the Constitution, and it's 2013. That was a big year for voting rights.

Sonni Waknin: [00:00:56] I was very closely watching the Shelby County case. I graduated high school in 2013. I graduated high school the day that the US Supreme Court struck down Section four B, the preclearance formula that gutted the Voting Rights Act.

Clips: [00:01:11] And at least for now, Jake, the bottom line is that these southern states, largely southern states that had these special requirements that the federal government imposed in that 1965 Voting Rights Act, they are no longer going to have to deal with that, at least for the time being, unless Congress takes special action. And as I said, I don't anticipate that special action any time soon.

Sonni Waknin: [00:01:32] And I decided right then and there, just sitting there, that I was going to go and be a voting rights lawyer.

Hannah McCarthy: [00:01:41] No. So what happened in 2013? What makes a teenager sitting at her graduation set a career path then in there? What is the Voting Rights Act and what has happened to it? That is what we are here to answer the civics one on one. I'm Hannah McCarthy.

Nick Capodice: [00:02:01] I'm an Nick Capodice.

Hannah McCarthy: [00:02:02] And today we are talking about a sweeping piece of legislation that changed voting for millions of Americans. But when we talk about the Voting Rights Act today, it is in the wake of some significant Supreme Court rulings. We are also talking about Shelby County V Holder, about Brunswick versus Democratic National Committee, about Mobile versus Bolden. But before we can get there, the act has to happen.

Clips: [00:02:29] Millions of Americans are denied the right to vote because of their color. This law. Will ensure them the right to vote.

Hannah McCarthy: [00:02:43] That's President Lyndon B Johnson on the day he signed the VRA, which in its own words, prohibits states from imposing any, quote, voting qualification or prerequisite to voting or standard practice or procedure to deny or abridge the right of any citizen of the United States to vote on account of race or color, unquote.

Nick Capodice: [00:03:03] And the Voting Rights Act happened for a reason, right? A huge reason. Can we start there?

Clips: [00:03:14] Many people predicted violence. Negro groups trained themselves to overwhelm it, armed with portable two way radios. Volunteers scattered throughout the march would keep watch. Should violence come, then that day, they would call for help.

Sonni Waknin: [00:03:30] There was a lot of state violence towards primarily black and African American citizens in the United States who had the legal right to vote, but they were unable to access the franchise. And it could be because there was actual violence. They would come to your house and they would threaten you. Unfortunately, people were lynched during this time period for registering people to vote for trying to, and that's just even to try to register to go on the rolls. So not even to access the polling booth, but to register.

Hannah McCarthy: [00:03:59] You also had these targeted obstacles specifically designed to disenfranchize nonwhite voters poll taxes, which was a prerequisite fee that you had to pay in order to register to vote. Literacy tests that you had to pass in order to vote. And grandfather clauses that exempted you from obstacles if your father or grandfather had voted prior to the abolition of slavery.

Nick Capodice: [00:04:22] In other words, if you were the descendant of white people.

Hannah McCarthy: [00:04:25] Pretty much, and these vote denial practices, this violence against black Americans that Sonni mentioned, it was all a part of the Jim Crow era. This was a period in the United States that lasted from around 1870 to 1964, and it was typified by laws and practices that oppressed and abused black people in this country.

Nick Capodice: [00:04:46] And this era really started with the end of reconstruction, right? This is when federal troops withdrew from the south and there was no longer anyone around to enforce the Reconstruction Act and protect black American rights.

Hannah McCarthy: [00:04:57] And so much of that era, Nick, was about keeping black Americans away from the vote, because when reconstruction began.

Gary May: [00:05:06] Well, it was a historic moment, a great moment. Black participation was amazingly active there. Even two United States senators who were African American, a number of congressmen. But that period, alas, did not last very long.

Hannah McCarthy: [00:05:25] This is Gary May, author of Bending toward Justice the Voting Rights Act and the Transformation of American Democracy. When federal troops withdrew from the South, the Democratic Party gained pretty much total control.

Nick Capodice: [00:05:38] The Democratic Party, as a quick reminder, held very different values at this time. And one of those prevailing values was the disenfranchisement of black Americans.

Hannah McCarthy: [00:05:49] And the story of the long and persistent black American fight to regain the right to enfranchisement is where the Voting Rights Act is rooted.

Gary May: [00:05:58] It's a remarkable story because on the one hand, you have the advances of the reconstruction period and then retreats, and that's how their story goes. By the early 20th century, African Americans, they had lost the right to vote. They've gone from thousands to, again, a handful, particularly in the southern states. So it came very quickly advance. And then it's a retreat and we're in that period again.

Nick Capodice: [00:06:32] Wow. So can you go over what specifically was driving those minuscule numbers? How did we go from thousands of active black voters to so few?

Gary May: [00:06:41] You had African Americans participating as much as they could, these trying to vote. And the obstacles were terrible. They had to do oral testing and they received such questions as how many bubbles in a bar of soap, how many judges are in Alabama, for example, there were some 67 of them, and they were supposed to name them one by one. And if they made one mistake, the most minor of mistakes, that would be enough to disqualify them. Sometimes a group would go to the local courthouse to register to vote. And if, say, they were 12 men and women who came that day and ten say passed the questions, but the other two failed, everyone was failed.

Nick Capodice: [00:07:43] And like Sonni said earlier, it wasn't just laws or official practices keeping black Americans away from the polls. There was also violence, lots of it.

Hannah McCarthy: [00:07:53] And a lot of it specific to voting.

Gary May: [00:07:56] Ocoee, Florida, there was an altercation. A couple of activists in the voting rights movement, July, Perry, Mose Norman. There was a confrontation between them and the white segregation. And they wound up dead and most of the town was wiped out.

Hannah McCarthy: [00:08:19] This is called the Ocoee Massacre. It is estimated that between 30 and 35 black individuals were murdered on November 2nd, 1920. Most black owned homes and businesses were destroyed. Hundreds of black individuals fled, and others who stayed were later murdered or driven out. All because that man who Gary mentioned, Mose Norman, tried to vote.

Gary May: [00:08:42] What's so extraordinary is how these people persisted. I mean, they would go back to the courthouse to register. And despite the rejection time after time, they kept on going.

Nick Capodice: [00:09:01] I feel like this is at the heart of the story of the Voting Rights Act. So often when we talk about why a civil right was enshrined, we talk about the oppression, the lack of autonomy or choice, the violence that preceded it. But ultimately, often, the reason something changes for the better is that a lot of people for a long time demanded that change.

Gary May: [00:09:26] It was primarily young people in their twenties who joined the Student Nonviolent Coordinating Committee or snick. They were the shock troops of the civil rights movement.

Clips: [00:09:38] I'm Willie Peacock, secretary for the Student Nonviolent Coordinating Committee. At president, I'm working in Greenwood, Mississippi, in lawful carry on voter registration.

Gary May: [00:09:48] As important as Dr. King's role is in all of this. We've again forgotten so many again of these these young people who would pick a location, for example, one of them went to Selma to work on voting rights. And again, they risked their lives. In one case, a young man was eventually attacked by Selma citizens, but he left that attack. His clothes were bloody. He was told by local activists, you know, go wash yourself. Your clothes are ripped and torn. Your you bled all over them. He said, no, I'm not going to clean myself up. I'm going to let people see what the cost of segregation is. So he continued to promote voting rights despite the fact of being bloody and beaten.

Hannah McCarthy: [00:10:43] This is something that Gary emphasized over and over that, yes, there were very public and connected and essential leaders of the civil rights movement like Dr. Martin Luther King Jr. And then there were the individuals and towns across the country doing anything they could to push for this American. Right.

Gary May: [00:11:01] There were just so many of them. One person who comes to mind was a preacher from Belzoni, Mississippi, named George Washington Lee, who had been very active in the voting rights movement and encouraged his parishioners to sign up to vote. And he, too, was shot and killed by the Ku Klux Klan. And of course, nothing happened with the case. The local sheriff refused to prosecute it. And when they examined Lee's body, which had been very badly shot to death, the local sheriff said, oh, those are those are dental fillings, not shotgun shells. And that was the end of that story. So there were so many like men, women and children who just gave up everything their jobs, their careers, and in this case, his life to fight for what should be an elementary right of every American.

Nick Capodice: [00:12:07] And politicians and presidents did eventually have to acknowledge the undeniable racism, disenfranchisement, wounding and killing of black Americans across the country. I mean, wasn't that the driver behind the Civil Rights Act that was passed in 1964?

Hannah McCarthy: [00:12:24] It was.

Nick Capodice: [00:12:25] So my question is why, Hannah, if we passed an act in 1964 specifically geared towards protecting rights regardless of the color of your skin or your sex, your religion? Why, then, did we still need the Voting Rights Act?

Hannah McCarthy: [00:12:39] Well, that particular Civil Rights Act of 1964, which was our third, by the way, tried to take care of the voting problem. The first section of the act specifically bans unequal application of voter registration requirements. It does not, however, ban burdensome requirements themselves, which tended to be and were designed to be particularly onerous to racial minorities, low income people, and people of a certain level of education. The 1964 Civil Rights Act also fails to address retaliation and violence against nonwhite people trying to vote.

Nick Capodice: [00:13:17] So these are some pretty big loopholes.

Hannah McCarthy: [00:13:19] Yeah. And you give states loopholes and they'll take them. Right. And states continued to. And President Lyndon Johnson watched.

Gary May: [00:13:31] President Johnson had been kind of ambivalent about creating a Voting Rights Act. Yes, he wanted to do it, but he was aware of the fact that he had passed the Civil Rights Act of 1964, and he didn't feel that he had the authority, the power, the acceptance to now do another huge voting rights bill. What changed that, of course, was Bloody Sunday.

Clips: [00:14:01] Detrimental to your safety to continue this march. And I'm saying instead of an unlawful assembly, you have to pass your order to disperse, go home or go to your church. That march will not continue. The people here. Advance Group,

Gary May: [00:14:22] A group of marchers led by John Lewis and other activists. And they they were attacked by troops on horseback. Cattle prods almost lost their lives. Attacked by these troops, beaten, shocked by cattle prods. And what was so effective was that ABC that Sunday had shown a movie judgment at Nuremberg about the Nuremberg war trials. And that was interrupted to bring the country the first footage of Bloody Sunday. And the result was people now going to work with Dr. King. They wanted to join this movement. They wanted to to be a part of it.

Nick Capodice: [00:15:26] Boy, this really happened.

Hannah McCarthy: [00:15:27] Oh, yeah.

Nick Capodice: [00:15:28] People actually tuned in to watch a movie about the Nuremberg trials, and what they saw was coverage of the attacks in Selma.

Gary May: [00:15:34] So it's it's extraordinary that Americans got their story in this case through television and it personalized. People could feel for what was happening to African Americans. And Johnson felt he could now call upon the Congress to pass this legislation.

Hannah McCarthy: [00:15:57] August 6th, 1965, President Lyndon Baines Johnson signed the Voting Rights Act. It became the enforcer of something that was already in the Constitution, the 15th Amendment. That's the amendment that says the right to vote of citizens of the United States shall not be denied or abridged based on race, color or previous condition of servitude. Dr. Martin Luther King Jr was there. And you know, when a president signs a major bill into law, he gives ceremonial pens to people in the audience. Yeah. So MLK received the first, which. Yeah, it's kind of like the least you can do. The act specifically banned literacy tests and other devices used to disenfranchize minority voters. It prohibited intimidation, harassment or coercion of a person attempting to vote. It prohibited someone from acting under color of law to stop someone from voting. It protected minorities from vote dilution, and it established a special formula for identifying discriminatory jurisdictions. And those jurisdictions got special provisions.

Nick Capodice: [00:17:01] All right. I mostly don't know what any of that means.

Hannah McCarthy: [00:17:05] Great. That's what this show is for. So let's go through it. Write the literacy tests you've got, right?

Nick Capodice: [00:17:10] Yeah. Those are things that test your reading ability and comprehension. And if you fail, it prohibits you from voting, which I know disproportionately affected low income Americans, immigrants and black Americans.

Hannah McCarthy: [00:17:21] Right. So that's out as are the ridiculous obstacles that Gary mentioned earlier, like guessing the number of bubbles on a bar of soap or naming every judge in your state. All right. Next. Harassment and intimidation. Does that make.

Nick Capodice: [00:17:35] Sense? Yeah, I've got that one.

Hannah McCarthy: [00:17:36] All right. Color of law.

Nick Capodice: [00:17:38] I don't actually know what color of law means.

Hannah McCarthy: [00:17:40] Yeah, I had to look this up. Acting under color of law is when a person claims they are acting in accordance with the law and as an agent of it, but in actual fact might be violating the law.

Nick Capodice: [00:17:54] So like if the sheriff arrests somebody in line to vote because they're the sheriff, but they don't have probable cause that's acting under color of law to prevent voting.

Hannah McCarthy: [00:18:05] Sure. Or even if an election official prevents an eligible person from voting, claiming they have the authority that's acting under color of law. And by the way, the Voting Rights Act also very importantly established that the attorney general of the United States had the ability to enforce provisions of the Voting Rights Act.

Nick Capodice: [00:18:26] Got it. Next vote dilution. Is this something to do with gerrymandering? I'm just I'm not familiar with that term.

Hannah McCarthy: [00:18:32] Yeah. Yeah, exactly. It might be better understood as minority gerrymandering.

Nick Capodice: [00:18:36] All right. Got it.

Hannah McCarthy: [00:18:37] So this could happen if the residents of a state typically engage in racially polarized voting.

Nick Capodice: [00:18:44] And that's like the minority group typically votes one way and the majority group typically votes the other way.

Hannah McCarthy: [00:18:50] Yeah. If district lines are then drawn in such a way that the minority racial group will never be able to elect its preferred candidate, that is minority vote dilution. The Voting Rights Act made that illegal, right.

Nick Capodice: [00:19:04] The last thing you mentioned was something about a special formula and special provisions.

Hannah McCarthy: [00:19:08] This, Nick, was a significant enforcement part of the Voting Rights Act. Congress created something that they called a coverage formula. If a state had proved particularly discriminatory, according to the formula, which takes a look at the use of literacy tests and other devices, as well as voter registration and turnout, that state would be, quote unquote, covered if a state or jurisdiction had proved particularly discriminatory, according to the formula, which takes a look at the use of literacy tests and other devices, as well as voter registration and turnout that state or jurisdiction would be. Covered. Now, if a covered jurisdiction was actively problematic, the attorney general could send in federal examiners to register voters, maintain voter rolls and examine voter registration applications. These examiners could also observe poll workers and voter conduct on Election Day.

Nick Capodice: [00:20:08] So the goal of all that, essentially, it's just to make sure that the Voting Rights Act is being followed in places where there are signs that it's not being followed.

Hannah McCarthy: [00:20:17] Right. Which is also to say to make sure that the 14th and 15th amendments are being followed. Oc OC Nick, one last big thing. Those covered jurisdictions were subject to something called pre-clearance.

Gary May: [00:20:33] One of the important aspects of the Voting Rights Act was something that's called pre-clearance. The act required that in states that were covered by the Voting Rights Act, that before they could change any important aspect of voting, they had to get the permission of the Justice Department or a federal judge. And after Shelby County, it was weakened.

Hannah McCarthy: [00:21:04] The story of what became of the Voting Rights Act is coming up after the break.

Nick Capodice: [00:21:08] But first, and here is the honest to goodness truth. All of us here at Civics 101 know the nation has changed and is changing. We know laws are coming and going. We know half of what we explained today could be gone tomorrow. So we're trying to keep up. We're doing our best to give you the tools to understand it all. We don't want you to miss it. We don't want you to feel confused. That is the whole point of this podcast. We want you to understand United States government and law. To do that, we have to keep this show up and running. And to do that, we rely on donations from those who have the ability to give. If you have the time and the spare change, consider making a donation at civics101podcast.org.

Hannah McCarthy: [00:21:51] There's also a link in the show notes. Do it because you want to keep knowing. Thanks. We're back. We're talking about the 1965 Voting Rights Act.

Nick Capodice: [00:22:01] And you left us on a bit of a.

Hannah McCarthy: [00:22:02] Cliffhanger, which I learned from Carolyn Keene.

Nick Capodice: [00:22:05] Is that a Nancy Drew reference?

Hannah McCarthy: [00:22:06] Yeah, every single chapter pretty much ends with Nancy being locked in a closet in an abandoned tower. So let's unlock the door. The Voting Rights Act is signed in August 1965. It enforces the 15th Amendment designed to finally support the registration and voting of black Americans.

Nick Capodice: [00:22:25] So you've told me what the act was designed to do. So now my question is, did it actually work? Did it actually do those things?

Hannah McCarthy: [00:22:33] It did. Racial discrimination in voting, decreased registration of black Americans increased by the end of 1965, a quarter of a million new black voters had been registered to vote. A third of those voters, Nick, were registered by federal examiners. A third. Oh, yeah.

Nick Capodice: [00:22:51] Wow.

Hannah McCarthy: [00:22:52] And right before the break, we talked about a significant provision in the Voting Rights Act. If a state had been discriminatory in the past, it had to get approval from the federal government if it wanted to add or change election and voting law and procedures. This is called pre-clearance. Here's Sonni walking again, the voting rights lawyer who is paying close attention to the fate of the Voting Rights Act in 2013.

Sonni Waknin: [00:23:19] If you're really bad, you're and you're covered under this formula for, like, historic discrimination because your voter rolls, you have a high minority population, your voter rolls show very little minority population. We're going to make you go ask the federal government or a court in D.C. for a mother. May I? And this applied to everything. If you were a covered jurisdiction and you wanted to close a polling location, like even one polling location, you had to go ask someone if you were allowed to do that.

Nick Capodice: [00:23:48] Now, I have noticed, Hannah, there has been a lot of past tense language going on here when you and Sunny are talking about the VRA and Sunny just said applied as in it used to.

Hannah McCarthy: [00:24:00] Correct.

Nick Capodice: [00:24:01] Because something happened to that coverage, didn't it?

Hannah McCarthy: [00:24:05] Something did. And that's something. Name is Shelby.

Clips: [00:24:08] Congress must ensure that the legislation it passes speaks to current conditions. The coverage formula, unchanged for 40 years, plainly does not do so, and therefore we have no choice but to find that it violates the Constitution. Justice Thomas has filed a concurring opinion. Justice Ginsburg has filed a dissenting opinion in which Justices Breyer, Sotomayor and Kagan have joined Justices Breyer.

Speaker6: [00:24:34] Sotomayor, Kagan and I are of the view that Congress is decision to renew the act and keep the coverage formula was an altogether rational means to serve the end of achieving what was once the subject of a dream the equal citizenship stature of all in our polity, a voice to every voter in our democracy, undiluted by race.

Hannah McCarthy: [00:25:04] So here's the environment in which Shelby V Holder came before the Supreme Court.

Sonni Waknin: [00:25:12] You have new people who are coming on to the court during the second Bush administration. You have Alito who joins the court. John Roberts becomes the chief justice during this period. And so you have a little turning of people who are not so supportive of voting rights. And after the 2008 election, which was a lot of people say a rejiggering of the political playing field. You also have a really intense focus on redistricting and on controlling power.

Hannah McCarthy: [00:25:45] 2008, of course, was when Barack Obama was elected president of the United States.

Sonni Waknin: [00:25:49] And you have states who are really focused now on redistricting as a way to gain back power. Right. Redistricting becomes more partizan during 2010 and 2011, and it actually results in this huge shift. All this money is going to state legislatures to re redistrict. However, states that want to do a lot of partizan and racial distracting and racial gerrymandering that are in the South can't do that because they had to go ask the federal government, either the attorney general's office or you'd have to go to a court in D.C. to approve of your redistricting bills.

Nick Capodice: [00:26:27] Okay. So there's a sea change in the politicking around voting.

Hannah McCarthy: [00:26:31] There is partially because the midterms of 2010 in backlash to Obama significantly changed the political leanings of the legislature. And to be clear, even prior to this period, things had started to shift. In the 1980s, the court took up a case called Mobile versus Bolden.

Sonni Waknin: [00:26:48] And so in Mobile versus Bolden, the Supreme Court had held that section two of the Voting Rights Act. You had to prove intentional discrimination. Now, that's a really high bar. It's extraordinarily hard. It it has only actually gotten harder to prove intentional discrimination in the jurisprudence courts now. And I would say the Supreme Court really want to see people saying explicitly racist things. They want this direct smoking gun evidence. Generally, you don't have that. Or, you know, they say that if they want everyone to be the racist right, it wasn't enough that the main person causes, like said on the record, that they were doing something to harm certain voters. Yeah, but not everyone said that. Who voted for the bill? Just the main person who wrote the bill.

Nick Capodice: [00:27:39] So if we jump ahead to Shelby V Holder, what year was that again?

Hannah McCarthy: [00:27:42] At 2013.

Nick Capodice: [00:27:43] 2013. Even though this Mobile V Bolden decision had happened, we still did have preclearance, right?

Hannah McCarthy: [00:27:49] Yeah.

Nick Capodice: [00:27:50] And that meant many jurisdictions, including a lot of jurisdictions in the South, that wanted to change voting itself along political lines, couldn't get it done.

Hannah McCarthy: [00:27:59] Yeah. And they were not very happy about that. So you've got these jurisdictions that feel fettered by the Voting Rights Act and you've got major ideological shifts in Congress. And the Supreme Court suddenly says it was the perfect storm of time to go after the Voting Rights Act.

Sonni Waknin: [00:28:16] So this case gets brought from Shelby County in South Carolina, which is kind of fitting. The state that challenged the the name is the name plaintiff. And the case that upheld the Voting Rights Act is challenging now. The Voting Rights Act once again and Chief Justice Roberts authored the opinion gutting the formula, the coverage Formula six. So Section four B of the Voting Rights Act saying that the South had changed, that the justification for the Voting Rights Act was that the South was a bad actor, and Southern jurisdictions needed the federal government to step in and to make sure that they were ensuring voting protections for their citizens, especially their citizens of color. And the act had worked extraordinarily well. You had increased voter registration. Some of the highest turnout in American history had been in 2008. You had more electeds of color and especially local electeds of color joining in, and you still have preclearance. And so there was less discriminatory redistricting. So the justification was that we don't need this anymore. This is like a huge burden. What's interesting, though, is that they don't say in the majority opinion that pre-clearance is unconstitutional. They just say that the coverage formula because it hadn't been updated since the sixties. The coverage formula was was unconstitutional.

Nick Capodice: [00:29:54] But without the formula, you can't say a state is covered. And without covered states, preclearance loses all its teeth and meaning, right?

Hannah McCarthy: [00:30:03] Well, kind of. Sunny explained that a state can still be what's called bailed into the pre-clearance structure. A federal court can place them under federal scrutiny for a period of time. And since the Shelby County decision, Nick, there has been an increase in preclearance lawsuits from individuals, from groups who claim that their state has violated the nondiscriminatory element of the Voting Rights Act.

Nick Capodice: [00:30:28] So that's my question right now, Hannah. There's still the rest of the Voting Rights Act, right? Importantly, the part that emphasizes that you cannot have a practice or procedure that discriminates based on race, which is the point of the Voting Rights Act.

Hannah McCarthy: [00:30:45] Yeah. And not just race and color. Certain language. Minorities were later added to the law as well. You know, people who speak a language that's not predominant in an area. Here's the thing, though. Back when the coverage formula was in place, discriminatory jurisdictions had to prove that their voting and elections changes were not discriminatory. The burden of proof was on them. Now it's the other way around. A government or private party has to prove that their jurisdiction is being discriminatory. The burden of proof has shifted. And remember that 1980 case Mobile versus Bolden, where the court ruled that you didn't just have to show discrimination, you had to show intentional discrimination. That is really, really hard to do. Then comes Brnovich in 2021.

Sonni Waknin: [00:31:37] In that case, what was really interesting is, you know, one of the the challenges to the law was about native voting. It made it tremendously hard for me to voters to be able to cast ballots. Native voters in Arizona primarily live in northern Arizona. It's very rural. They have a huge lack of access to drop boxes, polling places, all of these other things. And the language that legislators used to pass this vote denial bill was specifically targeting. They used racialized language against native Native Americans in Arizona. And that kind of gets lost because what we looked at was like statistical harm. And there was this other challenge about out of voting precincts, whereas, you know, you had legislators say things on the record that the Ninth Circuit said were racially discriminatory and showed intent. But the Supreme Court said it wasn't good enough. Because not everyone said it.

Hannah McCarthy: [00:32:37] Justice Samuel Alito authored the majority opinion. He took the opportunity to lay out some guidelines for future challenges to section two of the Voting Rights Act. Now, not a binding test, but an indication of how the court would evaluate voting rights cases in the future. Now, those guidelines include considering the strength of a state's interests, like in preventing voter fraud or something in the challenged legislation and considering the differences in how that legislation affects racial or ethnic groups. Of course, in Brnovich itself, the court set a higher bar for that racial disparity question. In her dissent, Justice Elena Kagan pointed out recent discriminatory voter law and expressed concern that the Brunswick decision was essentially weakening the Voting Rights Act.

Nick Capodice: [00:33:25] So what does all of this mean for the effect of the Voting Rights Act? I mean, is it still the same thing that passed in 1965?

Hannah McCarthy: [00:33:36] Well, Congress has taken steps to reaffirm, extend and strengthen the VRA. For example, after that 1980 Mobile versus Bolden case, they added a line saying, quote, Restates the prohibition against voting discrimination to include as violative conduct which has the effect of discrimination affect not intent. But so much depends on what the court rules. And Sonni told me there is another opinion coming down the pike.

Sonni Waknin: [00:34:06] And so that's what still exists today. And what's in danger with the. A merrill case that got taken up. It's the Alabama redistricting case that got taken up by the US Supreme Court. And there are people on that court who authored the Shelby County decision who have showed hostility to voting. We should know by June of 2023 whether or not we have Section two left of the Voting Rights Act. And if we don't, things are going to be dramatically different.

Nick Capodice: [00:34:42] Now, I know there's always this distinction between what SCOTUS decides and what Congress can do. Like if the Supreme Court eliminates a federal right, there are then calls upon Congress to enshrine it in law instead. And the Voting Rights Act exists because of Congress, not because the Supreme Court offered an opinion about the 15th Amendment. So does Congress have a plan for voting rights?

Hannah McCarthy: [00:35:10] Well, they've tried the John Lewis Voting Rights Act, which strengthens portions of the VRA and restores some of what was eliminated in Shelby. And Brnovich has failed several times in Congress, most recently as of the publishing of this episode in the Senate in 2022, where it didn't even make it to a vote. But there is one important thing that Sunny brought up when it comes to voting rights, and it has nothing to do with the Supreme Court or Congress.

Sonni Waknin: [00:35:35] What you can do, though, is lobby your state legislature to pass a state level Voting Rights Act. Federal protections are a floor, not a ceiling. And states can always be doing more and passing their own laws, especially because most states in the United States, I believe 48 of them, have their own election clauses that guarantee free and fair elections. And so that means that you can pass a Voting Rights Act under the state constitution because it will actually be enshrining constitutional protections and statutory.

Clips: [00:36:03] Language, as always, when the federal government fails to act. You can count on New York to punch back and fight even harder. We will not rest. We will not rest while these injustices continue. As I said, we did it with abortion. We did it with reproductive freedom. We did it with gun legislation, and now we're doing it again with voting rights.

Hannah McCarthy: [00:36:24] I think it's important to remember what the Voting Rights Act was designed to do, put an end to rampant discrimination. Yes. But by way of enforcing the 15th Amendment, it was explicitly called an act to enforce the 15th Amendment. There is an unambiguous constitutional right that this act is designed to enforce, and that right isn't going away, at least not yet.

Gary May: [00:36:52] The right to vote shall not be abridged because of race, color or creed. What's so difficult about that? It should be the most harmless thing in the world. This is what America is about to oppose. That is to oppose America itself.

Hannah McCarthy: [00:37:31] This episode was produced by me, Hannah McCarthy with help from Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jackie Fulton. Rebecca Lovejoy is our executive producer.

Nick Capodice: [00:37:40] Music In this episode from Sven Lindell, Daniel Friedel Nuisance. Jack Adkins. Hollis Frank Johnson Post. El Flaco Collective o.T. Penny Lane and Romero. If you're like us and you just can't get enough of civics in this world, you should subscribe to our newsletter. It's called Extra Credit. It is pure joy and trivia and fun rants, and it comes out every other Tuesday. And it's a really good excuse to just take 5 minutes and learn something new. You can find the link at our website, civics101podcast.org.

Hannah McCarthy: [00:38:09] Civics one one is a production of HPR New Hampshire Public Radio.

National Park Service

The National Park Service has changed immensely since its days of keeping poachers out of Yellowstone. So has its approach to telling the story of America. 

Kirsten Talken-Spaulding of the NPS and Will Shafroth of the National Park Foundation help us understand how this colossal system actually works and what it's doing to tell the true story of the United States.

National Parks System Audio automatically transcribed by Sonix

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

Hannah McCarthy:
In the beginning there was Yellowstone and it was good. I mean, good, you know, but kind of neglected. The kind of neglected that inspired one 1877 visitor to the park to remark that though the formations around the Yellowstone geysers appeared delicate, they were, in fact so solid that a, quote, hatchet is often necessary to obtain a choice piece for your cabinet.

Nick Capodice:
Wait, you can't do that. That's not allowed.

Hannah McCarthy:
No, that's not allowed. But see, it's a little tricky when you've got 3472 square miles of park and one guy in charge of it all.

Nick Capodice:
One guy all alone, no help.

Hannah McCarthy:
One guy, a single superintendent under the Department of the Interior with no help and no pay. Eventually, Congress figured out that you can't just call something a protected park without the money to protect it. And the answer is simple.

Nick Capodice:
Create the National Park Service.

Hannah McCarthy:
No, no, no, no. Send in the troops.

Nick Capodice:
Like the military, the federal troops.

Hannah McCarthy:
Yes, the military. Our first park rangers, in essence, August 18th, 1886, Captain Moses Harris rides into Yellowstone with Troop M of the US Cavalry. And it's not just Yellowstone that needs protecting. By 1890, you've got Sequoia National Park, Kings Canyon, National Park, Yosemite National Park. And by the way, many of these cavalrymen were what were known as Buffalo Soldiers. That's a subject that deserves a whole episode. These were all black American regiments who did everything from build trails to kick out poachers to stop private livestock from grazing in parks. Now, after a while, the Department of the Interior started hiring civilian scouts and rangers as well. But still, there was no official National Park Service.

Nick Capodice:
So at what point do we actually have a park service? Like when does the military march out and Ranger Smith march in to chase Yogi Bear around?

Hannah McCarthy:
Great question. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice:
And I'm Nick Capodice.

Hannah McCarthy:
And today we're taking a walk in the National Park Service.

Nick Capodice:
And a quick note to listeners. We recently released an episode about our first national park, Yellowstone. You should give a listen in the podcast feed. But back to today, NPS, the National Park Service.

Hannah McCarthy:
So how did we go from rough riding cavalry to, like you said, Nick, Ranger Smith and Yogi Bear, which, by the way, is a reference to a popular cartoon from the Sixties featuring a meddlesome bear who steals picnic baskets in Jellystone Park and the put upon Ranger who is trying to stop him. Ranger Smith, by the way, is actually former military U.S. Army. Who knew? So before we can get to the beginning of the park rangers who, you know, today, a little someone named Teddy Roosevelt has to come in.

Nick Capodice:
We need leaders of inspired idealism, leaders to who are granted great visions, who dream greatly and strive to make their dreams come true. You need, like, synonymous with the idea of national parks.

Hannah McCarthy:
He did create five of them. That's true. He doubled the park system. The park system did not actually exist as an official agency at that point. Also, super importantly, Roosevelt signed the Antiquities Act of 1906, which empowered presidents, including him, of course, to designate national monuments, basically to federally protect all kinds of historic lands and structures and things of scientific interest.

Nick Capodice:
So a national monument isn't like a statue, per se?

Hannah McCarthy:
No, no. Sometimes they have statues. But the primary difference between a national monument and a national park is the historical, cultural, scientific significance thing and the fact that a president can just make them without Congress. Hmm. Also, the land already has to be owned by the federal government, so the president can't add to the blue. Say, Hey, Nick, your backyard is fascinating. We're making it a monument.

Nick Capodice:
All right. Got it.

Hannah McCarthy:
The military does indeed march out eventually, 30 years after troops first arrived in Yellowstone, the National Park Service arrives. That is 1916, courtesy of President Woodrow Wilson. And 100 some odd years later, you're talking 423 national park sites across 85 million acres of US states and territories staffed by 20,000 people.

Nick Capodice:
Well, maybe I've grown cynical over the past few years, but there's something strange about having tens of thousands of federal employees whose sole job is to handle beautiful or historical land for people to visit. It seems weirdly romantic for a federal project.

Hannah McCarthy:
Yeah, I agree. This idea of, like, let's not mess with this place too much is not exactly an American tradition. Right? So let's figure out how this odd duck works.

Kirsten Talken-Spaulding:
When folks think about the National Park Service. Those are the folks that actually you see in the green uniforms when you go to the national parks. A lot of times that's what people think about. But the national park system is so much more than that.

Hannah McCarthy:
This is Kirsten Talken-Spalding. She's deputy regional director of the National Park Service Northeast Region.

Kirsten Talken-Spaulding:
So with over 400 individual units of the system, there are, gosh, 150 or so related sites. That means they're not necessarily units, but we work with them directly.

Hannah McCarthy:
Wait, units? Yeah, it's kind of a funny term and it's because these places take so many different forms, which we'll get to later.

Kirsten Talken-Spaulding:
There are a ton of assistance programs that the National Park Service does. The National Park Service administers a number of programs that are particularly geared towards the natural and cultural history.

Hannah McCarthy:
And Kirsten, like so many who work for the National Park Service, has been with and all over the system for a long time.

Kirsten Talken-Spaulding:
I've had the opportunity to serve all across the nation as far west as Haleakala on Maui, starting to brand new national park units, one Mojave National Preserve in California and most recently at Fort Monroe National Monument, again here in Virginia, mentioned the fellowship have the opportunity to serve on the Hill with the United States Senate, working with them for a year on the language that actually creates the bills.

Hannah McCarthy:
The Bevin Neto Fellowship, by the way, is a two year program for National Park Service employees to learn how Congress works and the role that Congress plays for the NPS.

Nick Capodice:
So Kirsten actually got to see how the sausage of her own federal agency got made.

Hannah McCarthy:
Yes. And just as a quick aside, you know how we used to refer to this podcast as Schoolhouse Rock for adults?

Kirsten Talken-Spaulding:
Some folks are familiar with Schoolhouse Rock, and perhaps you're familiar with a little cartoon of I'm just a bill. That is the training video for folks coming into the fellowship.

Nick Capodice:
I hope they decide. To report on me favorably. Otherwise I may die. Die? Yeah, die in committee. Oh, but it looks like they actually watch it.

Hannah McCarthy:
They actually watch it. So here is how the legislation that governs this enormous system happens.

Kirsten Talken-Spaulding:
It's an interesting thing. Have you ever been in a game of telephone before?

Nick Capodice:
Telephone tickets even play telephone anymore? I don't know. Well, you're like, park my car by the library, and it gets whispered around the room in the last person's like, Put my eggplant the fry, daddy.

Hannah McCarthy:
It's actually a fun game.

Nick Capodice:
Yeah, that is a fun game, man. I'll give you that.

Kirsten Talken-Spaulding:
Writing bills can be a lot like that, where the language that's intended isn't what ends up on the paper.

Hannah McCarthy:
One of Kirsten's jobs was to make sure that at the end of that game of legislative telephone, whatever the bill was actually made sense.

Kirsten Talken-Spaulding:
What I was able to do was to read the language that was provided and say, okay, well, when I read it like this, my understanding of how it would be implemented in the national park system is that and then the person could go, Oh, that's exactly what I meant. And then we would move merrily on. Or they would go, Oh man, that is not what I meant at all. And so they would ask for some refinements and we'd work collaboratively to make sure that that congressional members intent behind the bill, that language was reflected in the bill itself.

Nick Capodice:
But what kind of legislation is still happening nowadays? Is Congress creating new national parks?

Hannah McCarthy:
Sometimes I found out that Congress snuck New River Gorge in West Virginia into the COVID 19 relief bill in 2020. Sometimes they expand a park's borders, sometimes they change a name. That's an especially useful tool when a site has a racist or derogatory name, which is, believe it or not, not all that uncommon. Sometimes they authorize a new park or unit. They can also decommission a park which doesn't necessarily make a park go away. The government just divests it and it goes to a state or town. For example, Nick, the second ever National Park, Mackinac Island in Lake Huron, was decommissioned in 1895 and then became Michigan's first state park.

Nick Capodice:
Hmm. And as I learned at the beginning of the episode, when you make something a national park, you can't just casually entrust it to one unpaid employee. You've got to give it resources. When you're looking at 85 million acres, 20,000 employees, how much money does Congress budget for the National Park System?

Will Shafroth:
Congress appropriates about three and a half billion dollars to support the National Park Service. That is primarily to support the 22,000 full and part seasonal employees that work there and all the operating costs associated with each of those park units as well as the overall administration and management of the system.

Hannah McCarthy:
This is Will Paffrath. He's the CEO of the National Parks Foundation, which Nick Get This is a nonprofit that Congress established to raise money for the National Park Service.

Nick Capodice:
I had no idea that was even a thing. Hannah like the Department of Homeland Security doesn't have a nonprofit organization funding their body scanners. How is that a thing?

Hannah McCarthy:
I don't know. It just is it's it's a thing. The federal operating budget for the parks doesn't cover everything the parks do. So this foundation was established to help cover the gaps.

Will Shafroth:
The idea was first developed in the early sixties as a result of a an undertaking that actually President Eisenhower initiated called the Outdoor Recreation Review Commission. And looking at all of our public lands and figure out how do we how do we make them better? How do we manage the diversity of of needs on there for recreation, for conservation? And so there was a proposal to create a nonprofit organization, the first of its kind to support public lands in this country. And the National Park Foundation was ultimately established in 1967 to be the official charitable partner for the national parks.

Nick Capodice:
All right. So what is the National Parks Foundation actually doing?

Hannah McCarthy:
They do what we public radio people do all the time, Nick. They ask for money and then they give that money to the National Park Service and they do other things too.

Will Shafroth:
What we fund is really the the over and above that, that the Park Service really doesn't get covered through the federal budget process. And so so we serve in a way as a land trust to support the national park. So we step in and we will help often partner with other organizations to to acquire a piece of property and then turn it over to the National Park Service so it becomes part of the federal estate. The great example of that was at Martin Luther King's National Historic Park in Atlanta, where the King family, you know, desired to to basically sell the birth and life home of Dr. Martin Luther King Jr and Coretta Scott King and and really sell them through us to the National Park Service. So we stepped in with the resource that. Natural Resources took us a while to negotiate the transaction because of a lot of complicated things around it. But we did that with a full permission and support of the National Park Service.

Nick Capodice:
I had never considered the fact that the national parks properties have to be negotiated over or bought.

Hannah McCarthy:
Well, think about it. It's giant swathes of real estate, often beautiful and historically significant real estate. Now, obviously, there are parks like Yellowstone that were just designated and taken, but these days there are millions of acres of private land that the park system wants to acquire that need to be paid for.

Nick Capodice:
Until the National Parks Foundation is like the benefactor who swoops in and saves the day.

Hannah McCarthy:
It's not quite as romantic as all that. Even with the help from the National Parks Foundation, even with their portion of the federal budget, which, by the way, comes from the Land and Water Conservation Fund, as of 2021, there was billions of dollars worth of land that the NPS wanted to acquire and protect, and the money just wasn't there.

Nick Capodice:
So basically it's not as simple as Congress saying, Hey, that's pretty, or, Hey, that's important, let's make it a park.

Hannah McCarthy:
Yeah, stuff costs money.

Nick Capodice:
So what is the federal budget actually do for the Park Service?

Hannah McCarthy:
I think will SHAPIRO sum this up pretty well when he talked about what he raises money for?

Will Shafroth:
We are not going to be effective at raising money from individuals, families, foundations or corporations to pay for road maintenance or repair of the water system or a new septic system at some remote park or roof repairs or a new HVAC equipment. We've done that a little bit, but, you know, basically those kind of things just feel like the federal responsibility, right? That's what the Park Service is supposed to be doing. So so we have to define not only what the priorities are, but be honest with them and say these are the things of your long list. Here are the ten things that we think that we're going to be really good at raising money for. And if we if you sent us off on a kind of a fool's errand of trying to, you know, raise money to repair the potholes, we're not going to come back with very much money.

Nick Capodice:
In other words, the foundation leaves the quotidian, everyday stuff to the federal government and raises money for flashy stuff like a piece of the Florida Everglades.

Hannah McCarthy:
It's just not a very sexy cell to be like, Hey, donors, Gettysburg needs a new septic system.

Nick Capodice:
Well, hold on for a second, actually, because Gettysburg is a battlefield. We could do this all day. Like, how is Gettysburg a national park? See, this is the thing I'm trying to wrap my head around. Hanna at the park system is not just enormous, spectacular natural landscapes. It's also battlefields like Gettysburg and Martin Luther King Jr's home. Right.

Hannah McCarthy:
And the Ford Theater and the Vietnam Veterans Memorial and the Fire Island National Seashore and the Statue of Liberty. By the way, we mentioned those national monuments, the things that presidents get to make. Some national monuments are also under the national park system like Stonewall National Monument in Manhattan, for example, Nick, the first ever national monument dedicated to LGBTQ rights and history that was both designated by Barack Obama and put under the NPS so far.

Nick Capodice:
Hannah The national park system is much more patchwork and varied than I expected. You've got different types of land, different types of funding sources. There's like so many different places in so many different purposes. Who runs the whole thing?

Hannah McCarthy:
There's a Senate confirmed director of the National Park Service, as well as three deputy directors to keep this sprawling network functioning. Kirsten has a pretty apropos way of describing the structure.

Kirsten Talken-Spaulding:
I often think about the service like a large tree. There's all these different branches. We've got a law enforcement branch and we've got naturalists and we've got scientists and we've got maintenance employees. These are all different branches. And then we've got the administration that's like the roots of the tree. You don't always see them, but they're bringing on all kinds of resources that really allow that that that organism to thrive.

Hannah McCarthy:
So what does that tree actually doing? We'll figure out what the national park system is about today after a short break.

Nick Capodice:
But before we do, just a quick reminder that we, too, rely on donations.

Hannah McCarthy:
That's a good pivot.

Nick Capodice:
Thank you. If you're feeling charitable, please consider heading over to Civics101podcast.org to make a contribution. And in the meantime, we'll keep cultivating the park of civic engagement. Thanks.

Hannah McCarthy:
We're back. You're listening to Civics 101 and we're talking about the national park system. Now, before the break, we talked about the fact that the NPS acquires and then manages important land when they can afford it. But I want to give you a closer look.

Kirsten Talken-Spaulding:
So when Congress authorizes a national park, they authorize it, often with an exact boundary like this is in and that's out of the park.

Hannah McCarthy:
This is Kirsten Talken-Spaulding, a longtime NPS employee.

Kirsten Talken-Spaulding:
Now, it doesn't mean that there's federal ownership of all of that land within the boundary. So we have an authorized boundary of the park, but then we have the federal lands that are part of inside that authorized boundary. So let's say Farer Joe is inside the authorized park boundary. You don't want to be a farmer anymore. His kids don't want to be farmers anymore. He wants to sell his land. He can sell to a developer and he could have multiple houses or whatever developed on that land if it's within the authorized boundary of the national park. We will engage with that person that has what we call a willing seller. We will engage with the willing seller and say, Listen, this land is important to us and we'll share with him the reasons why it's important. It may be within the view shed of a cultural landscape that's important to telling the stories of the park. It may have specific resources on that land.

Nick Capodice:
Okay. So just to clarify, there are people who actually live inside national parks.

Hannah McCarthy:
There are, for example, somewhat controversially, someone not too long ago built a luxury home on a private parcel in Black Canyon of the Gunnison National Park, which, while we're here, Nick, is a national park that I discovered by accident while I was on a road trip. And it's like gobsmacking. It's beautiful. But anyway, the point is, these pieces of land, these parcels are called in holdings, and often the government tries to buy them or just hopes that the landowners don't eat them.

Nick Capodice:
Well, speaking of buying land of the federal government, deciding something ought to be a park for whatever reason, like what makes something park worthy.

Kirsten Talken-Spaulding:
For a long time, I think that there was a a myopic view of what it means to be worthy, to be preserved. It's a story that we should tell that glorifies us as a nation. And I think over the years, we've come to understand that to be inclusive means to recognize that we haven't always gotten it right. It also means that we go back and we try and reconcile and rectify some of the issues that we've had in the past.

Nick Capodice:
Having been here at the table across from you recording the Yellowstone episode, Hannah, one such issue that comes to mind is that most of this land was the home and birthright of tribal nations across the country.

Hannah McCarthy:
Kirsten and I talked about this at length. She took Acadia National Park in Maine as an example, where parks ecologists are finally asking the original stewards of the land how to best preserve it.

Kirsten Talken-Spaulding:
So like the Mi'kmaq, the Penobscot, the Passamaquoddy, the indigenous folks that have been on the lands for hundreds and thousands of years, in some cases when Acadia was created, it severed that natural relationship with the indigenous peoples of the land. When you create a park, you create opportunities. And in the past sometimes it feels like we've also diminished opportunities. And I think when we when we've had that chance to really broaden out where we are and understanding what a national park can be, not just a place that we talk about past practices, but we actually encourage them to continue. Today, the sweetgrass traditions that were done by the Mi'kmaq, the Penobscot, the Passamaquoddy. They did this natural resource study.

Hannah McCarthy:
A quick history lesson here. For the better part of the past hundred years, tribal citizens were prohibited from gathering sweetgrass in Acadia, which was both a vital cultural and ecological process. Even when the Wabanaki were permitted to reinstate this practice, it was under tight restrictions by the NPS and this natural resource study that was aimed at understanding the impact of gathering sweetgrass. It ended up revealing how much better the Wabanaki understood sweetgrass than the botanists who were studying it.

Kirsten Talken-Spaulding:
So vitally important when we think about climate change and the impacts that potentially could be had on our national parks, especially in the coastal lands. They came to. Find out that it actually enhances the plant itself. Working with the tribes from that area, we can understand more deeply what it means to be connected to the land and do a better job of managing the land, not just what we think should be done, but understanding the hundreds and sometimes thousands of years of knowledge that some indigenous peoples can bring as well.

Hannah McCarthy:
I want to be clear here that there is also a nationwide indigenous led movement to put Indigenous land back in Indigenous hands. It's called the Land Back Movement and in other countries Indigenous managed land proves to be just as if not more biodiverse than preserved lands managed by governments. Now currently the National Park Service has around 80 official tribal relationships, as well as four co-management agreements, which are specific legal arrangements that look different depending on the park and the tribe. Chuck F Sams, the current director of the National Park Service and by the way, the Park Service's first ever director, who is also a tribal citizen, has been clear that he wants to create more collaborative and co management arrangements with tribes across the country.

Kirsten Talken-Spaulding:
Certainly the director has an interest to ensure that we're doing our part, not just to collaborate and cooperate with our tribal nations, but that we work with them in a really structured way. And I think that our agreements are part of the way that we do that. These agreements aren't just about like the science, but it even comes down to how do we manage from a maintenance standpoint. You know, if we know that we've got ground nesting birds, we don't mow that time of the year. So we have mowing plans that ensure that we assist with the populations of some of our species that are unique to the areas we think about the development and planning related to climate change. That's got a lot to do with our connection or understanding with our tribal nations and working with them directly as well.

Nick Capodice:
You know, Hannah, Kirsten mentioned earlier that part of the goal here is to reconcile and rectify, to acknowledge that the things that our government chose to preserve and the way it chose to preserve it was often about glorifying a country that has plenty of condemnable history. There are beautiful and important places that can at the same time represent American shame and disgrace. So I guess my question is, is the National Park Service building that truth into the parks experience today?

Kirsten Talken-Spaulding:
National parks can be the tip of the spear when it comes to being able to have difficult conversations. So at Fort Monroe National Monument, at that space, that's where the, quote, contraband decision was made. And it was a pivotal turning point in the in the Civil War where those folks that had been enslaved. Self emancipated and they were now considered contraband of war and were not returned to enslavement. That changed a lot for the Civil War. Well, what does that now mean? How do we have that conversation about equity? How do we have that conversation about enslavement? How do we have the conversation about the ripple effects and the ongoing impact that the history that is told and understood at Fort Monroe National Monument. What better place to have that conversation right here in the heart of the south, where there was the well, say the capital of the Confederacy was in Virginia. And here is this union fort. This union controlled fort in the middle of the capital of the Confederacy. What a great place to talk about what freedom means. So the value of a national park is not just imbued in the economics that it brings to the area, but in our ability to have a civil society that allows us to have these conversations, to understand where we have done well, where we have done wrong, and how we can be better as a nation into the future.

Hannah McCarthy:
Kersten told me about one of the newest additions to the National Park System, dedicated in March of 2020 to the Amaechi National Historical Site. It is also known as the Granada Relocation Center, where more than 10,000 Japanese-Americans were interned during World War Two. Now, the ostensible goal here, according to the government officials who have been talking about it, is to preserve a site reflective of an abhorrent period in American history and to teach visitors what we as a nation did to our own citizens. And that happened in large part because of a high school teacher who'd been working with his students for 25 years to preserve the site. President Biden signing a bill this afternoon designated Amaechi as the nation's newest national park. The former Japanese-American internment camp is located in southeastern Colorado and Grenada and near Lamar.

Nick Capodice:
It occurs to me that the park system is kind of like a living archive. It can set a place aside at the federal level that serves as proof of something having happened or something happening right now. Or sure, something being beautiful or scientifically interesting. Its artifacts and art.

Hannah McCarthy:
Yeah, I spoke about this with both Kirsten and Will Shaffer, both from the Parks Foundation, and both saw that aspect as an opportunity to skirt politicization. Will talked about, for example, the fact that Glacier National Park will serve as a testament to climate change simply by melting away.

Will Shafroth:
We don't expect there to be glaciers in by 2040, you know, and so there are things that that we can help in a very safe context that is apolitical and a judgmental and just say, here's what's going on. It's also what we can do. And around a whole different set of issues around racial justice and equity that the parks really provide a place to tell the truth, to tell the truth about our nation's history and the long journey that we've taken to get to where we are and frankly, just how much further we still have to go. In a lot of ways, they just are just kind of telling the truth.

Hannah McCarthy:
Of course, for something to get to that point, it has to go through the political process. It has to be presented as worthy of the Park Service, worthy of federal money. I come back again to that well-trodden line. The National Park Service is America's best idea. And I kind of think it's more like the National Park Service reflects American ethos. The changes to the system are, in part a result of citizens and organizations saying, Hey, this is important, don't look away. This is America. Whether you like it or not, you better put it in the archive before we forget.

Kirsten Talken-Spaulding:
Over 400 units. There's a reason why there are so many. You can't tell the nation story at just a handful of national parks. You've got to have all of those voices, all of those stories, those dissonant times, those joyful times. You've got to have all of that together to really make an incredible symphony. And that's part of what our national park system does for the nation.

Hannah McCarthy:
This episode was produced by me, Hannah McCarthy with help from Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Nul Tiel Records, Evan Schaefer, Kesha, Walt Adams, Site of Wonders, Dusty Decks, HoliznaRAPS and Margareta. If you liked this episode, please consider writing a review. It tells us how we're doing. It tells us you're listening. We actually care about that. Thanks for everything. Civics 101 is a production of NHPR New Hampshire Public Radio.

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Transcript

Hannah McCarthy: In the beginning there was Yellowstone and it was good. I mean, good, you know, but kind of neglected. The kind of neglected that inspired one 1877 visitor to the park to remark that though the formations around the Yellowstone geysers appeared delicate, they were, in fact so solid that a, quote, hatchet is often necessary to [00:00:30] obtain a choice piece for your cabinet.

Nick Capodice: Wait, you can't do that. That's not allowed.

Hannah McCarthy: No, that's not allowed. But see, it's a little tricky when you've got 3472 square miles of park and one guy in charge of it all.

Nick Capodice: One guy all alone, no help.

Hannah McCarthy: One guy, [00:01:00] a single superintendent under the Department of the Interior with no help and no pay. Eventually, Congress figured out that you can't just call something a protected park without the money to protect it. And the answer is simple.

Nick Capodice: Create the National Park Service.

Hannah McCarthy: No, no, no, no. Send in the troops.

Nick Capodice: Like the military, the federal troops.

Hannah McCarthy: Yes, the military. Our first park rangers, [00:01:30] in essence, August 18th, 1886, Captain Moses Harris rides into Yellowstone with Troop M of the US Cavalry. And it's not just Yellowstone that needs protecting. By 1890, you've got Sequoia National Park, Kings Canyon, National Park, Yosemite National Park. And by the way, many of these cavalrymen were what were known as Buffalo Soldiers. That's a subject that deserves a whole episode. These were all black American regiments who did everything [00:02:00] from build trails to kick out poachers to stop private livestock from grazing in parks. Now, after a while, the Department of the Interior started hiring civilian scouts and rangers as well. But still, there was no official National Park Service.

Nick Capodice: So at what point do we actually have a park service? Like when does the military march out and Ranger Smith march in to chase Yogi Bear around?

Hannah McCarthy: Great question. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: And I'm Nick Capodice. [00:02:30]

Hannah McCarthy: And today we're taking a walk in the National Park Service.

Nick Capodice: And a quick note to listeners. We recently released an episode about our first national park, Yellowstone. You should give a listen in the podcast feed. But back to today, NPS, the National Park Service.

Hannah McCarthy: So how did we go from rough riding cavalry to, like you said, Nick, Ranger Smith and Yogi Bear, which, by the way, is a reference to a popular cartoon from the Sixties featuring a meddlesome bear who steals picnic [00:03:00] baskets in Jellystone Park and the put upon Ranger who is trying to stop him. Ranger Smith, by the way, is actually former military U.S. Army. Who knew? So before we can get to the beginning of the park rangers who, you know, today, a little someone named Teddy Roosevelt has to come in.

Nick Capodice: We need leaders of inspired idealism, leaders to who are granted great visions, who dream greatly and strive to make their dreams come true. You need, like, synonymous with the idea of national parks.

Hannah McCarthy: He did [00:03:30] create five of them. That's true. He doubled the park system. The park system did not actually exist as an official agency at that point. Also, super importantly, Roosevelt signed the Antiquities Act of 1906, which empowered presidents, including him, of course, to designate national monuments, basically to federally protect all kinds of historic lands and structures and things of scientific interest.

Nick Capodice: So a national monument isn't like a statue, [00:04:00] per se?

Hannah McCarthy: No, no. Sometimes they have statues. But the primary difference between a national monument and a national park is the historical, cultural, scientific significance thing and the fact that a president can just make them without Congress. Hmm. Also, the land already has to be owned by the federal government, so the president can't add to the blue. Say, Hey, Nick, your backyard is fascinating. We're making it a monument.

Nick Capodice: All right. Got it.

Hannah McCarthy: The military does indeed march out eventually, 30 [00:04:30] years after troops first arrived in Yellowstone, the National Park Service arrives. That is 1916, courtesy of President Woodrow Wilson. And 100 some odd years later, you're talking 423 national park sites across 85 million acres of US states and territories staffed by 20,000 people.

Nick Capodice: Well, maybe I've grown cynical over the past few [00:05:00] years, but there's something strange about having tens of thousands of federal employees whose sole job is to handle beautiful or historical land for people to visit. It seems weirdly romantic for a federal project.

Hannah McCarthy: Yeah, I agree. This idea of, like, let's not mess with this place too much is not exactly an American tradition. Right? So let's figure out how this odd duck works.

Kirsten Talken-Spaulding: When folks think about the National Park Service. Those are the folks [00:05:30] that actually you see in the green uniforms when you go to the national parks. A lot of times that's what people think about. But the national park system is so much more than that.

Hannah McCarthy: This is Kirsten Talken-Spalding. She's deputy regional director of the National Park Service Northeast Region.

Kirsten Talken-Spaulding: So with over 400 individual units of the system, there are, gosh, 150 or so related sites. That means they're not necessarily units, but we [00:06:00] work with them directly.

Hannah McCarthy: Wait, units? Yeah, it's kind of a funny term and it's because these places take so many different forms, which we'll get to later.

Kirsten Talken-Spaulding: There are a ton of assistance programs that the National Park Service does. The National Park Service administers a number of programs that are particularly geared towards the natural and cultural history.

Hannah McCarthy: And Kirsten, like so many who work for the National Park Service, has been with [00:06:30] and all over the system for a long time.

Kirsten Talken-Spaulding: I've had the opportunity to serve all across the nation as far west as Haleakala on Maui, starting to brand new national park units, one Mojave National Preserve in California and most recently at Fort Monroe National Monument, again here in Virginia, mentioned the fellowship have the opportunity to serve on the Hill with the United States Senate, working with them for a year on the language [00:07:00] that actually creates the bills.

Hannah McCarthy: The Bevin Neto Fellowship, by the way, is a two year program for National Park Service employees to learn how Congress works and the role that Congress plays for the NPS.

Nick Capodice: So Kirsten actually got to see how the sausage of her own federal agency got made.

Hannah McCarthy: Yes. And just as a quick aside, you know how we used to refer to this podcast as Schoolhouse Rock for adults?

Kirsten Talken-Spaulding: Some folks are familiar with Schoolhouse Rock, and perhaps you're familiar with a little cartoon of I'm just a bill. [00:07:30] That is the training video for folks coming into the fellowship.

Nick Capodice: I hope they decide. To report on me favorably. Otherwise I may die. Die? Yeah, die in committee. Oh, but it looks like they actually watch it.

Hannah McCarthy: They actually watch it. So here is how the legislation that governs this enormous system happens.

Kirsten Talken-Spaulding: It's an interesting thing. Have you ever been in a game of telephone [00:08:00] before?

Nick Capodice: Telephone tickets even play telephone anymore? I don't know. Well, you're like, park my car by the library, and it gets whispered around the room in the last person's like, Put my eggplant the fry, daddy.

Hannah McCarthy: It's actually a fun game.

Nick Capodice: Yeah, that is a fun game, man. I'll give you that.

Kirsten Talken-Spaulding: Writing bills can be a lot like that, where the language that's intended isn't what ends up on the paper.

Hannah McCarthy: One of Kirsten's jobs was to make sure that at the end of that game of legislative telephone, whatever the bill was actually made sense. [00:08:30]

Kirsten Talken-Spaulding: What I was able to do was to read the language that was provided and say, okay, well, when I read it like this, my understanding of how it would be implemented in the national park system is that and then the person could go, Oh, that's exactly what I meant. And then we would move merrily on. Or they would go, Oh man, that is not what I meant at all. And so they would ask for some refinements and we'd work collaboratively to make sure that that congressional members intent behind [00:09:00] the bill, that language was reflected in the bill itself.

Nick Capodice: But what kind of legislation is still happening nowadays? Is Congress creating new national parks?

Hannah McCarthy: Sometimes I found out that Congress snuck New River Gorge in West Virginia into the COVID 19 relief bill in 2020. Sometimes they expand a park's borders, sometimes they change a name. That's an especially useful tool when a site has a racist or derogatory name, which is, believe it or not, not all that uncommon. Sometimes they authorize a new park or unit. They [00:09:30] can also decommission a park which doesn't necessarily make a park go away. The government just divests it and it goes to a state or town. For example, Nick, the second ever National Park, Mackinac Island in Lake Huron, was decommissioned in 1895 and then became Michigan's first state park.

Nick Capodice: Hmm. And as I learned at the beginning of the episode, when you make something a national park, you can't just casually entrust it to one unpaid employee. You've [00:10:00] got to give it resources. When you're looking at 85 million acres, 20,000 employees, how much money does Congress budget for the National Park System?

Will Shafroth: Congress appropriates about three and a half billion dollars to support the National Park Service. That is primarily to support the 22,000 full and part seasonal employees that work there and all the operating costs associated with each of those park units as well as the overall administration and management of the system.

Hannah McCarthy: This is Will Paffrath. He's [00:10:30] the CEO of the National Parks Foundation, which Nick Get This is a nonprofit that Congress established to raise money for the National Park Service.

Nick Capodice: I had no idea that was even a thing. Hannah like the Department of Homeland Security doesn't have a nonprofit organization funding their body scanners. How is that a thing?

Hannah McCarthy: I don't know. It just is it's it's a thing. The federal operating budget for the parks doesn't cover everything the parks do. [00:11:00] So this foundation was established to help cover the gaps.

Will Shafroth: The idea was first developed in the early sixties as a result of a an undertaking that actually President Eisenhower initiated called the Outdoor Recreation Review Commission. And looking at all of our public lands and figure out how do we how do we make them better? How do we manage the diversity of of needs on there for recreation, for conservation? And so there was a proposal to create a nonprofit organization, the first of its kind [00:11:30] to support public lands in this country. And the National Park Foundation was ultimately established in 1967 to be the official charitable partner for the national parks.

Nick Capodice: All right. So what is the National Parks Foundation actually doing?

Hannah McCarthy: They do what we public radio people do all the time, Nick. They ask for money and then they give that money to the National Park Service and they do other things too.

Will Shafroth: What we fund is really the the over and above that, that the Park Service really doesn't get covered through the federal budget process. [00:12:00] And so so we serve in a way as a land trust to support the national park. So we step in and we will help often partner with other organizations to to acquire a piece of property and then turn it over to the National Park Service so it becomes part of the federal estate. The great example of that was at Martin Luther King's National Historic Park in Atlanta, where the King family, you know, desired to to basically sell the birth and life home of Dr. Martin Luther King Jr and Coretta Scott King [00:12:30] and and really sell them through us to the National Park Service. So we stepped in with the resource that. Natural Resources took us a while to negotiate the transaction because of a lot of complicated things around it. But we did that with a full permission and support of the National Park Service.

Nick Capodice: I had never considered the fact that the national parks properties have to be negotiated over or bought.

Hannah McCarthy: Well, think about it. It's giant swathes of real estate, often beautiful and historically significant real [00:13:00] estate. Now, obviously, there are parks like Yellowstone that were just designated and taken, but these days there are millions of acres of private land that the park system wants to acquire that need to be paid for.

Nick Capodice: Until the National Parks Foundation is like the benefactor who swoops in and saves the day.

Hannah McCarthy: It's not quite as romantic as all that. Even with the help from the National Parks Foundation, even with their portion of the federal budget, which, by the way, comes from the Land and Water Conservation Fund, as [00:13:30] of 2021, there was billions of dollars worth of land that the NPS wanted to acquire and protect, and the money just wasn't there.

Nick Capodice: So basically it's not as simple as Congress saying, Hey, that's pretty, or, Hey, that's important, let's make it a park.

Hannah McCarthy: Yeah, stuff costs money.

Nick Capodice: So what is the federal budget actually do for the Park Service?

Hannah McCarthy: I think will SHAPIRO sum this up pretty well when he talked about what he raises money for?

Will Shafroth: We are not going to be effective at raising money from individuals, families, [00:14:00] foundations or corporations to pay for road maintenance or repair of the water system or a new septic system at some remote park or roof repairs or a new HVAC equipment. We've done that a little bit, but, you know, basically those kind of things just feel like the federal responsibility, right? That's what the Park Service is supposed to be doing. So so we have to define not only what the priorities are, but be honest with them and say these are the things of your long list. Here are the ten things that we think that we're going to be really good at raising money [00:14:30] for. And if we if you sent us off on a kind of a fool's errand of trying to, you know, raise money to repair the potholes, we're not going to come back with very much money.

Nick Capodice: In other words, the foundation leaves the quotidian, everyday stuff to the federal government and raises money for flashy stuff like a piece of the Florida Everglades.

Hannah McCarthy: It's just not a very sexy cell to be like, Hey, donors, Gettysburg needs a new septic system.

Nick Capodice: Well, hold on for a second, actually, because Gettysburg is a battlefield. We could do this all day. Like, how is [00:15:00] Gettysburg a national park? See, this is the thing I'm trying to wrap my head around. Hanna at the park system is not just enormous, spectacular natural landscapes. It's also battlefields like Gettysburg and Martin Luther King Jr's home. Right.

Hannah McCarthy: And the Ford Theater and the Vietnam Veterans Memorial and the Fire Island National Seashore and the Statue of Liberty. By the way, we mentioned those national monuments, the things that presidents get to make. Some national monuments [00:15:30] are also under the national park system like Stonewall National Monument in Manhattan, for example, Nick, the first ever national monument dedicated to LGBTQ rights and history that was both designated by Barack Obama and put under the NPS so far.

Nick Capodice: Hannah The national park system is much more patchwork and varied than I expected. You've got different types of land, different types of funding sources. There's like so many different places in so many different purposes. Who [00:16:00] runs the whole thing?

Hannah McCarthy: There's a Senate confirmed director of the National Park Service, as well as three deputy directors to keep this sprawling network functioning. Kirsten has a pretty apropos way of describing the structure.

Kirsten Talken-Spaulding: I often think about the service like a large tree. There's all these different branches. We've got a law enforcement branch and we've got naturalists and we've got scientists and we've got maintenance employees. These are all different branches. [00:16:30] And then we've got the administration that's like the roots of the tree. You don't always see them, but they're bringing on all kinds of resources that really allow that that that organism to thrive.

Hannah McCarthy: So what does that tree actually doing? We'll figure out what the national park system is about today after a short break.

Nick Capodice: But before we do, just a quick reminder that we, too, rely on donations.

Hannah McCarthy: That's a good pivot.

Nick Capodice: Thank you. If you're feeling charitable, please consider heading over to Civics101podcast.org to make a contribution. [00:17:00] And in the meantime, we'll keep cultivating the park of civic engagement. Thanks.

Hannah McCarthy: We're back. You're listening to Civics 101 and we're talking about the national park system. Now, before the break, we talked about the fact that the NPS acquires and then manages important land when they can afford it. But I want to give you a closer look.

Kirsten Talken-Spaulding: So when Congress authorizes a national park, they authorize it, often with an exact boundary like this [00:17:30] is in and that's out of the park.

Hannah McCarthy: This is Kirsten Talken-Spaulding, a longtime NPS employee.

Kirsten Talken-Spaulding: Now, it doesn't mean that there's federal ownership of all of that land within the boundary. So we have an authorized boundary of the park, but then we have the federal lands that are part of inside that authorized boundary. So let's say Farer Joe is inside the [00:18:00] authorized park boundary. You don't want to be a farmer anymore. His kids don't want to be farmers anymore. He wants to sell his land. He can sell to a developer and he could have multiple houses or whatever developed on that land if it's within the authorized boundary of the national park. We will engage with that person that has what we call a willing seller. We will engage with the willing seller and say, Listen, [00:18:30] this land is important to us and we'll share with him the reasons why it's important. It may be within the view shed of a cultural landscape that's important to telling the stories of the park. It may have specific resources on that land.

Nick Capodice: Okay. So just to clarify, there are people who actually live inside national parks.

Hannah McCarthy: There are, for example, somewhat controversially, someone not too long ago built a luxury home on a private parcel in Black Canyon [00:19:00] of the Gunnison National Park, which, while we're here, Nick, is a national park that I discovered by accident while I was on a road trip. And it's like gobsmacking. It's beautiful. But anyway, the point is, these pieces of land, these parcels are called in holdings, and often the government tries to buy them or just hopes that the landowners don't eat them.

Nick Capodice: Well, speaking of buying land of the federal government, deciding something ought to be a park for whatever reason, like what makes something park worthy.

Kirsten Talken-Spaulding: For a long time, I [00:19:30] think that there was a a myopic view of what it means to be worthy, to be preserved. It's a story that we should tell that glorifies us as a nation. And I think over the years, we've come to understand that to be inclusive means to recognize that we haven't always gotten it right. It also means that we go back and we try and reconcile and rectify some of the issues that we've had in the past.

Nick Capodice: Having [00:20:00] been here at the table across from you recording the Yellowstone episode, Hannah, one such issue that comes to mind is that most of this land was the home and birthright of tribal nations across the country.

Hannah McCarthy: Kirsten and I talked about this at length. She took Acadia National Park in Maine as an example, where parks ecologists are finally asking the original stewards of the land how to best preserve it.

Kirsten Talken-Spaulding: So like the Mi'kmaq, the Penobscot, the Passamaquoddy, the [00:20:30] indigenous folks that have been on the lands for hundreds and thousands of years, in some cases when Acadia was created, it severed that natural relationship with the indigenous peoples of the land. When you create a park, you create opportunities. And in the past sometimes it feels like we've also diminished opportunities. And I think when we when we've had that chance to really broaden out where we are and understanding [00:21:00] what a national park can be, not just a place that we talk about past practices, but we actually encourage them to continue. Today, the sweetgrass traditions that were done by the Mi'kmaq, the Penobscot, the Passamaquoddy. They did this natural resource study.

Hannah McCarthy: A quick history lesson here. For the better part of the past hundred years, tribal [00:21:30] citizens were prohibited from gathering sweetgrass in Acadia, which was both a vital cultural and ecological process. Even when the Wabanaki were permitted to reinstate this practice, it was under tight restrictions by the NPS and this natural resource study that was aimed at understanding the impact of gathering sweetgrass. It ended up revealing how much better the Wabanaki understood sweetgrass than the botanists who were studying it.

Kirsten Talken-Spaulding: So vitally important when we think about climate [00:22:00] change and the impacts that potentially could be had on our national parks, especially in the coastal lands. They came to. Find out that it actually enhances the plant itself. Working with the tribes from that area, we can understand more deeply what it means to be connected to the land and do a better job of managing the land, not just what we think should [00:22:30] be done, but understanding the hundreds and sometimes thousands of years of knowledge that some indigenous peoples can bring as well.

Hannah McCarthy: I want to be clear here that there is also a nationwide indigenous led movement to put Indigenous land back in Indigenous hands. It's called the Land Back Movement and in other countries Indigenous managed land proves to be just as if not more biodiverse than preserved lands managed by governments. Now currently [00:23:00] the National Park Service has around 80 official tribal relationships, as well as four co-management agreements, which are specific legal arrangements that look different depending on the park and the tribe. Chuck F Sams, the current director of the National Park Service and by the way, the Park Service's first ever director, who is also a tribal citizen, has been clear that he wants to create more collaborative and co management arrangements with tribes across the country.

Kirsten Talken-Spaulding: Certainly the director has an interest to ensure that [00:23:30] we're doing our part, not just to collaborate and cooperate with our tribal nations, but that we work with them in a really structured way. And I think that our agreements are part of the way that we do that. These agreements aren't just about like the science, but it even comes down to how do we manage from a maintenance standpoint. You know, if we know that we've got ground nesting birds, we don't mow that time of the year. So we have mowing plans that ensure that [00:24:00] we assist with the populations of some of our species that are unique to the areas we think about the development and planning related to climate change. That's got a lot to do with our connection or understanding with our tribal nations and working with them directly as well.

Nick Capodice: You know, Hannah, Kirsten mentioned earlier that part of the goal here is to reconcile and rectify, to acknowledge that the things that our government chose to preserve and the way it chose to preserve it was often [00:24:30] about glorifying a country that has plenty of condemnable history. There are beautiful and important places that can at the same time represent American shame and disgrace. So I guess my question is, is the National Park Service building that truth into the parks experience today?

Kirsten Talken-Spaulding: National parks can be the tip of the spear when it comes to being able to have difficult conversations. So at Fort Monroe National Monument, [00:25:00] at that space, that's where the, quote, contraband decision was made. And it was a pivotal turning point in the in the Civil War where those folks that had been enslaved. Self emancipated and they were now considered contraband of war and were not returned to enslavement. That changed [00:25:30] a lot for the Civil War. Well, what does that now mean? How do we have that conversation about equity? How do we have that conversation about enslavement? How do we have the conversation about the ripple effects and the ongoing impact that the history that is told and understood at Fort Monroe National Monument. What better place to have that conversation right here in the heart of the [00:26:00] south, where there was the well, say the capital of the Confederacy was in Virginia. And here is this union fort. This union controlled fort in the middle of the capital of the Confederacy. What a great place to talk about what freedom means. So the value of a national park is not just imbued in the economics that it brings to the area, but in our ability to have a civil society [00:26:30] that allows us to have these conversations, to understand where we have done well, where we have done wrong, and how we can be better as a nation into the future.

Hannah McCarthy: Kersten told me about one of the newest additions to the National Park System, dedicated in March of 2020 to the Amaechi National Historical Site. It is also known as the Granada Relocation Center, where more than 10,000 Japanese-Americans were interned during World War Two. Now, the ostensible [00:27:00] goal here, according to the government officials who have been talking about it, is to preserve a site reflective of an abhorrent period in American history and to teach visitors what we as a nation did to our own citizens. And that happened in large part because of a high school teacher who'd been working with his students for 25 years to preserve the site. President Biden signing a bill this afternoon designated Amaechi as the nation's newest national park. The former Japanese-American [00:27:30] internment camp is located in southeastern Colorado and Grenada and near Lamar.

Nick Capodice: It occurs to me that the park system is kind of like a living archive. It can set a place aside at the federal level that serves as proof of something having happened or something happening right now. Or sure, something being beautiful or scientifically interesting. Its artifacts and art.

Hannah McCarthy: Yeah, I spoke about this with both Kirsten and Will Shaffer, both [00:28:00] from the Parks Foundation, and both saw that aspect as an opportunity to skirt politicization. Will talked about, for example, the fact that Glacier National Park will serve as a testament to climate change simply by melting away.

Will Shafroth: We don't expect there to be glaciers in by 2040, you know, and so there are things that that we can help in a very safe context that is apolitical and a judgmental and just say, here's what's going on. [00:28:30] It's also what we can do. And around a whole different set of issues around racial justice and equity that the parks really provide a place to tell the truth, to tell the truth about our nation's history and the long journey that we've taken to get to where we are and frankly, just how much further we still have to go. In a lot of ways, they just are just kind of telling the truth.

Hannah McCarthy: Of course, for something to get to that point, it has to go through the political process. It has [00:29:00] to be presented as worthy of the Park Service, worthy of federal money. I come back again to that well-trodden line. The National Park Service is America's best idea. And I kind of think it's more like the National Park Service reflects American ethos. The changes to the system are, in part a result of citizens and organizations saying, Hey, this is important, don't look away. This is America. Whether you like it or not, you better put it in the [00:29:30] archive before we forget.

Kirsten Talken-Spaulding: Over 400 units. There's a reason why there are so many. You can't tell the nation story at just a handful of national parks. You've got to have all of those voices, all of those stories, those dissonant times, those joyful times. You've got to have all of that together to really make an incredible symphony. And that's part of what our national park system does for the nation.

Hannah McCarthy: This [00:30:00] episode was produced by me, Hannah McCarthy with help from Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Nul Tiel Records, Evan Schaefer, Kesha, Walt Adams, Site of Wonders, Dusty Decks, [00:30:30] HoliznaRAPS and Margareta. If you liked this episode, please consider writing a review. It tells us how we're doing. It tells us you're listening. We actually care about that. Thanks for everything. Civics 101 is a production of NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

M, F & X: Gender Markers & Government Documents

The government issues IDs so we can prove who we say we are, and since the start, that’s included an expression of binary (male or female) gender. Now, some states - and even the federal government - are starting to change that.  

LGBTQ+ reporter Kate Sosin is our guide.

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Transcript

To come! Check back soon.

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Made possible in part by the Corporation for Public Broadcasting.

What Does the 2nd Amendment Say?

CLICK HERE TO LISTEN TO AND FOLLOW CIVICS 101 ON YOUR FAVORITE PODCAST APP.

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:

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Transcript

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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Made possible in part by the Corporation for Public Broadcasting.

Precedent and the Leaked Draft SCOTUS Opinion

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. 

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Transcript

Precedent and the Leaked Draft SCOTUS Opinion: Audio automatically transcribed by Sonix

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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Precedent and the Leaked Draft SCOTUS Opinion

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.

Precedent and the Supreme Court

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. 

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Transcript

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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.

Should Animals Have Human Rights?

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.

DONATE TO OUR PODCAST IN JUNE AND YOU COULD WIN A $500 AIR BNB GIFT CARD - PLUS YOU'LL GET A SNAZZY NEW CIVICS 101 STICKER! CLICK HERE TO DONATE.

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? 

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Transcript

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.

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District, Circuit, Supreme: How does the federal court system work?

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. 

---

Transcript

Fed Court System.mp3: Audio automatically transcribed by Sonix

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.

Made possible in part by the Corporation for Public Broadcasting.

Freedom of the Press: Parts 1 & 2

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.

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Transcript

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.

PRX: [00:24:57] From PRX.

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Made possible in part by the Corporation for Public Broadcasting.

The Shadow Docket

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.

Listen:

Transcript

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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Roe v Wade: Facts of the Case

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: Audio automatically transcribed by Sonix

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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Transcript

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.

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Made possible in part by the Corporation for Public Broadcasting.

The First National Park

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. 

Audio automatically transcribed by Sonix

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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Transcript

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.

---

Made possible in part by the Corporation for Public Broadcasting.

What is NATO?

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: Audio automatically transcribed by Sonix

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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Made possible in part by the Corporation for Public Broadcasting.

Citizens United v FEC

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. 

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Transcript

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.

---

Made possible in part by the Corporation for Public Broadcasting.

US vs: Constitutions

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. 

Audio automatically transcribed by Sonix

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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Transcript

US vs: Constitutions

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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