Separation of Church and State

What did Jefferson mean when he wrote about a "wall of separation" between the church and the state? How have we interpreted the pair of clauses in the 1st Amendment regarding religion? And finally, what is the current relationship between church and state when it comes to the Supreme Court, religious schools, taxes, and growing religious nationalism?

Today we talk to Katherine Stewart, author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism and Morgan Marietta, Chair of Political Science at the University of Texas, Arlington and founding editor of the SCOTUS Decisions Series.


Transcript

Nick Capodice: Hannah, you don't want to, like, come clean on the most embarrassing civics gaffe that you've made.

Hannah McCarthy: Uh, no. I don't want to do that. No.

Nick Capodice: I was I was going to start with mine, but I am just not going to do it. I am not going to admit my most ignorant gaffe since I started this job. It's too embarrassing to even say out loud. But if any of you happen to see me in the real [00:00:30] world and you ask me in person, I will tell you. So I bring it up. Because, Hannah, you refrained from referencing the West Wing until your government shutdown episode. And today I break my fast. I start with a West Wing episode that saved me from another blunder.

West Wing: The law separation of church and state. Who told you that? You know exactly what I'm talking about. So the government and the church are not supposed to. They're not supposed to be the same [00:01:00] thing. And you think there's a law? There is. What kind of law? What the hell? City, state, federal. I don't know about those things, but I know there's a law.

Hannah McCarthy: Oh, I know this episode.

Nick Capodice: You do? Red Mass?

Hannah McCarthy: Of course. Yeah. This is the one about the Catholic mass held the Sunday before the Supreme Court first convenes in October. Right. And there's this guy who's talking to Charlie.

Nick Capodice: Anthony.

Hannah McCarthy: Okay. Yeah. Anthony Anthony says that it is against the law to have a mass that all of these politicians [00:01:30] are supposed to go to because of the separation of church and state. And Charlie challenges Anthony to show him where exactly separation of church and state exists in the Constitution.

Nick Capodice: That is the one. If I had not seen that episode, Hannah, I would have told you that there is a clear law somewhere saying that there is a separation of church and state.

Hannah McCarthy: I mean, the idea is in there, it's in the First Amendment. But [00:02:00] it does all make me wonder why we all know that phrase separation of church and state. Where does that come from?

Nick Capodice: Well, Hannah, we have got a long, fuzzy, gray road to walk. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about the separation of church and state. We are going to look into the framers intentions, the controversy about the separation since our founding, the modern interpretation in the courts, and [00:02:30] finally, the growing movement of nationalism in the name of religion. But yeah, let's start with that question. Where does this phrase come from?

Katherine Stewart: As you know, the phrase separation of church and state is not in the Constitution, but that's because the Constitution requires quite precise language. And that phrase, separation of church and state is not sufficiently exact for that document.

Morgan Marietta: The separation of church and state as an idea, as a principle, surely is [00:03:00] part of the US Constitution. But that does not mean that we have agreed now or in the past or in the future exactly what that principle is or how it should be applied.

Katherine Stewart: My name is Katherine Stewart. I'm an author and journalist. My book is titled The Power Worshipers Inside the Dangerous Rise of Religious Nationalism.

Morgan Marietta: I'm Morgan Marietta, professor and chair of political science at the University of Texas at Arlington and coeditor of the annual Scotus series.

Nick Capodice: And before we get into the history, I have to [00:03:30] start with a really compelling idea that Morgan told me at the start of our interview. It was something Franklin Delano Roosevelt said on Constitution Day in 1937.

Morgan Marietta: Fdr 1937 has this great quote on this The Constitution of the United States was a laymen's document, not a lawyer's contract.

FDR: This great laymen's document, therefore, was a charter of general principles completely different from the whereases [00:04:00] and the parties of the first part and the fine print which lawyers put into leases and insurance policies and installments.

Morgan Marietta: And that's the reason why the phrase separation of church and state is so important. It's an understandable phrase that's meant for ordinary discussion. It's not literally in the Constitution, but it's the way that we talk about and understand this.

Nick Capodice: So this separation as an idea [00:04:30] is in the First Amendment, which I'm going to get to in short order. But the words in that expression come from the 1800s.

Katherine Stewart: Thomas Jefferson offered those words as a paraphrase in a letter to the Danbury Baptist Association in Connecticut in 1802. Baptists at the time were fairly marginalized and often despised group religious group. And they were worried that a nation dominated by other Protestant sects and [00:05:00] denominations would force them to do things that they simply didn't want to do. So Jefferson was really assuring them that they didn't have to worry, that the government wasn't going to take sides when it came to religion and that they were going to have full and equal rights as citizens. So that phrase separation of church and state is a really good paraphrase for those ideas and principles.

Hannah McCarthy: It's interesting to me that such a massive thing, something one might consider a bedrock principle of America, was [00:05:30] first used in a letter to a small association in Connecticut after our Constitution was written.

Nick Capodice: I know, but what surprised me about it is that it wasn't just a small personal missive. He just slapped together. The Library of Congress, enlisted the help of the FBI forensic experts to reveal how many drafts and how many edits he made of this letter. It was important to Jefferson. He talked about it a lot. His actual words were, quote, a wall of [00:06:00] separation between church and state.

Katherine Stewart: Another really important document to remember is the Virginia Statute of Religious Freedom. It's a statement written by Thomas Jefferson in 1786. And in that statute, he laid the ground for the First Amendment protections for religious freedom. It discusses in some detail both freedom of conscience and also the principle of church state separation. And it's really well worth a read. But I think it's important to remember that the Virginia Statute of Religious [00:06:30] Freedom came about because there was this crisis where everyone was asked to pay a tax to support the Anglican Church, and other denominations were really upset about that. They didn't want to pay for an American religion. And Jefferson and Madison agreed that no one should have to pay money to support a religion they do not wish to support. And that's why we have that statute of religious freedom, which anticipated the Bill of Rights in the First Amendment.

Nick Capodice: And as a quick aside, if you're talking original constitution, not including the amendments, the [00:07:00] word religion is only mentioned once in the whole thing. It's an Article six "No religious test shall ever be required as a qualification to any office or public trust under the United States."

Hannah McCarthy: Okay, let's get into the First Amendment, those actual words upon which this idea is based.

Morgan Marietta: So the actual phrase is Congress shall make no law. It's important to note here, people get confused about this. They think, oh, you mean Congress...you mean that states can violate this. This is about the civil war in the 14th Amendment. [00:07:30] We have broadened this out. We read it now to mean government. So you take Congress and you x it out and you say government. So government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Nick Capodice: Worth noting here that while we might think of the First Amendment primarily being about speech; religion, religion comes first in the actual words. And there are two clauses in those 16 words which we refer to as the establishment clause and the free exercise [00:08:00] clause. And those 16 words again for the people in the back. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Hannah McCarthy: Two clauses in 16 words Let's break them down.

Nick Capodice: You got it McCarthy Establishment first.

Morgan Marietta: Establishment clearly was referring to the practice in Old Europe and in the early colonies of having an established church to which you had to give some kind of obedience or give money. But [00:08:30] Americans in the court have seen it much more broadly than that. It's not just about having an official church. It's about having any endorsement of religion or entanglements with religion. Question is, how far does that go? Does it go to a wall of separation? Does it go to this complete argument that there can be no religious presence at all, but that might start to violate the second part, which is free exercise and free exercise of religion raises the question of what is a religion? It's clearly [00:09:00] belief. So the government can't tell you what to believe or what to say. But religions are not just about belief. They're also about behavior. That belief tells you to act in certain way or wear a certain things or engage in certain kinds of behaviors. And the question is, how far does that go? Because if it's behavior as well as belief, those behaviors can start to infringe upon other people.

Hannah McCarthy: I just want to jump in here and say I like the idea of the Constitution being understandable. A laypersons [00:09:30] document. But even if we think we understand what it says, it still comes down to interpretation. How have people and most importantly, of course, the courts interpreted those 16 words.

Nick Capodice: Well. Morgan talked with me a bit about that specifically. Many Supreme Court decisions have read them differently over the years, but he boiled it down to three, three interpretations.

Morgan Marietta: It basically basically goes like this The dual [00:10:00] clauses could mean protection, neutrality or separation.

Nick Capodice: And before this trio. Hannah, Let me just relate a personal I don't know. What do you call it? A Bugaboo? Hannah, do you have a word that you like? Always misinterpret that you get wrong?

Hannah McCarthy: Not any more, but kind of like family lore. We in the McCarthy household always used the term enervate to mean like giving energy, [00:10:30] right? Like that was so enervating because it sounds like energizing, but actually the word enervate means the exact opposite.

Nick Capodice: I have the exact same problem with the word secular, the exact same thing. I think it means the opposite of what it means. So secular means non-religious. I don't have trouble with non-religious as an idea. It sounds religious, right? Seculare.

Religious Choir: Se-cu-la-reeee

Nick Capodice: So if there's just one person out there like me who has trouble with the definition of [00:11:00] secular, No, we are in the same canoe. Okay, Back to Morgan's trio of interpretation of the establishment and free exercise clauses. Number one, protection.

Morgan Marietta: And protection means that the original purpose was to protect the liberty of the mind, to protect the existence of religion. Madison argued very clearly that religion flourishes more when government does not interfere with it. It was meant [00:11:30] to protect religion by not letting one religion dominate others. If you put the Catholics in charge, they'll dominate the Protestants. And if you put the Baptists in charge, they'll dominate the other Protestant denominations. If you want a religious society, you have a separation of church and state. But that was meant to let them flourish. You can argue that separation of church and state is meant to have society be more and more secular. But the founding idea may not have been that at all, and the idea could be protection of religion. [00:12:00]

Nick Capodice: All right. You ready for number two? Number two, neutrality.

Morgan Marietta: Neutrality. And this suggests that the meaning of the dual religion clauses is you must treat religion and secularism neutrally and all religions neutrally and all criticisms of religion neutrally. So anything that goes to the seculars, the religious, anything that goes to the religious, the seculars, Gad and neutrality [00:12:30] and this phrase of neutrality. The Supreme Court has used this many, many different times, often without agreement of what neutrality means, though.

Hannah McCarthy: What does Morgan mean when he says the justices cannot agree on what neutrality means?

Nick Capodice: I'll get to that real soon, but let me get number three out of the way first.

Morgan Marietta: The third version is separation. And there was a very important case, the Lemon case, 1971, Lemon v Kurtzman and the lemon [00:13:00] test said that essentially we had to avoid any kind of entanglement that whenever a public institution was advantaging one or the other or even becoming excessively entangled with religion in any way, this was a violation of the Constitution.

SCOTUS archival: I discern eight eight grounds on which church state cases have been founded by this court. And I venture to say this in the first piece of legislation [00:13:30] ever before this court that violates all eight.

Nick Capodice: The Lemon test. Lemon v Kurtzman. So in the 1960s, both Rhode Island and Pennsylvania had laws that gave money to religious private schools. The court voted 8 to 1 that this violated the First Amendment. In his opinion. Chief Justice Warren Burger said that these laws established, quote, an intimate and continuing relationship, end quote, between church and state. [00:14:00] And the word that the court used in this opinion is entanglement. Church and state cannot be entangled. They must be separate.

Hannah McCarthy: What is the test, though, in the lemon test? Is it like you can look at a law and check off some boxes and determine if it's constitutional or not?

Nick Capodice: Yeah, essentially it's three prongs, a fork, if you will. Prong one purpose. Does the law have a religious purpose? Prong two effect. Does the law advance or [00:14:30] inhibit religion in any way? And prong three entanglement, does the law result in an excessive government entanglement with religion? You check any of those boxes, you failed the lemon test. That law is unconstitutional.

Morgan Marietta: And it essentially meant that we had to have a full separation between the two, which means that public institutions are essentially secular by constitutional mandate. That was the reigning understanding for about 50 years until very recently. [00:15:00] And with the current constitutional revolutions, the Supreme Court has essentially abandoned separation very recently.

Hannah McCarthy: What happened?

Nick Capodice: I'm going to tell you. About how the lemon test is now pretty much irrelevant. And we'll talk about everything going on when it comes to church and state in the modern court's era, right after this break.

Hannah McCarthy: But before the break, it is our podcast fund drive, which means that if you support our show, we'll give something back to you. It is a very cool vintage [00:15:30] baseball cap. If you make a one time donation of $60, it is yours. Click the link in the show notes. To do that or head on over to our website civics101podcast.org. I can say with certainty that this hat passes the lemon test.

Hannah McCarthy: We're back. We're talking about the separation of church and state. And Nick, you just spent a lot of time explaining what the Lemon test was, only to say that it does not matter anymore. [00:16:00]

Nick Capodice: Yeah, Lemon is gone, Hannah. No more lemons.

Archival: Happening today, the US Supreme Court set to hear the case of a former Bremerton High School football coach Joe Kennedy. So Kennedy last coach, the Bremerton High School football team seven years ago. The school district fired him for praying on the field with his players.

Nick Capodice: Kennedy v Bremerton School District 2022. Now, listeners might know this as the praying coach case. This is about a high school football coach named Joseph Kennedy, who prayed at the 50 yard line at football games. Students eventually joining [00:16:30] in. The school board asked Kennedy to stop to pray somewhere else or at some other time. He did not, and his contract was not renewed as a result. Again, here's Morgan Marietta.

Morgan Marietta: And there is a strong debate about the facts of the case, and I'd like to set that aside a bit, because the facts that the Supreme Court recognized were these that he did, in fact, pray. He did have some students join him, but he wasn't asking them to. They did it of their own free will. It was on [00:17:00] his personal time. It wasn't in class. That is not allowable. He wasn't proselytizing. But what he was was someone who was in this middle ground between whether he's a private citizen or he's the government himself, a teacher in a public school is both of those things. And this is why this is a tough case. He is a person and under the free exercise clause, he is a citizen with rights to be religious. And the state can't coerce him [00:17:30] into not being religious.

Nick Capodice: But also he is a member of the government. He is a public school teacher and a member of the government cannot coerce students to be religious.

Hannah McCarthy: So this coach, you know, as a private citizen and also a government employee, he's kind of straddling that border, right. If we're talking coercion, it's like who is coercing whom? Either he's coercing students to be religious or the government is coercing [00:18:00] him to not be religious.

Nick Capodice: Exactly. It is a very, very tricky situation.

Hannah McCarthy: So what did the court decide?

Nick Capodice: The court decided 6 to 3 in favor of Coach Kennedy in the opinion by Justice Neil Gorsuch. He says the school's case for firing the coach, "rested on a mistaken view that it had a duty to ferret out and suppress religious observances, even as it allows comparable secular speech." And in her dissent, Justice Sonia Sotomayor expressed [00:18:30] that the court had long said teachers cannot lead prayer in school and that this decision, "charts a different path yet again. Pain, almost exclusive attention to the free exercise clauses, protection for individual religious exercise while giving short shrift to the establishment clauses. Prohibition on state establishment of religion."

Archival: For the first time in eight years, Joe Kennedy will coach under the Friday Night Lights here at Bremerton Memorial Stadium. While some fans are coming [00:19:00] just to watch the football game, others will be here paying close attention to see what Kennedy does after the play clock runs out.

Hannah McCarthy: Okay, Nick, we've talked about the Supreme Court's interpretation of church and state. Now, I would love to understand something a little more tangible money that churches don't pay taxes, right?

Nick Capodice: No, they do not. Churches [00:19:30] are exempt from local, state and federal taxes.

Hannah McCarthy: And can churches get money from the government?

Nick Capodice: That is that's a little more fuzzy. Here again is Katherine Stewart, author of The Power Worshipers Inside the Dangerous Rise of Religious Nationalism.

Katherine Stewart: On the question of money, on the question of taxation, there has absolutely been backsliding because our founders were really clear that any form of government money for any church was unacceptable. Madison [00:20:00] And and Jefferson wrote that the very definition of tyranny. Tyranny they used that word was to, as they put it, tax Peter to pay for the religion of Paul. They said this repeatedly that citizens shouldn't have to support religions they did not wish to support and they were really adamant about that. But today, taxpayers are directly subsidizing religion in all sorts of ways, including tax exemptions, subsidies, direct direct funding [00:20:30] through a variety of means.

Hannah McCarthy: Does Katherine have any specific examples of this?

Nick Capodice: Yep, she sure does.

Katherine Stewart: So one example is the crisis pregnancy centers, which take in nearly $100 million every single year in direct government money and taxpayer funding. The state of Ohio alone spent $14 million last year on these right wing, typically faith based programs. They act like they provide medical care, but then they don't [00:21:00] they they exist to evangelize women in the form of religion that they want to promote. They might do a few other things, but that is their purpose.

Nick Capodice: A study that I found from 2021 cited that at least ten states have used federal grant money to fund anti-abortion centers.

Katherine Stewart: Another example about this taxpayer funding of religion is vouchers for religious schools, which, as you know, school vouchers direct many millions of dollars in taxpayer funding to religious groups. They want [00:21:30] the government to pay directly for religious schools, which are then free to teach Christian nationalist versions of American history or inculcate students in contempt for other faiths. And right wing legal activists are setting up a case in Oklahoma right now to that end. So not paying tax to support any church you don't want was one of the clearest aims of our founders. We are where we are now because of five decades of investment [00:22:00] in the infrastructure of what I call the Christian nationalist movement.

Nick Capodice: And I have to jump in here to make something perfectly plain. When we talk about religious nationalism today, specifically in the United States, Christian nationalism, we are not talking about Christianity or any other religion. This is something entirely different.

Katherine Stewart: Listen, let's really be clear. Christian nationalism is not Christianity. It's not a religion. Christianity [00:22:30] in America is very diverse. So Christian nationalism is a political phenomenon that involves the exploitation of religion for political purposes. I think of it as combining two kinds of things. On the one hand, it's a set of ideas, an ideology, and on the other hand, it's a political movement, an organized quest for power as an ideology. It boils down to the idea that America was founded as a so-called Christian nation. Christian here, referring to a very conservative [00:23:00] or reactionary conception of that religion. And it says that all of our problems stem from the fact that we have supposedly forsaken this, you know, this kind of heritage. So it's a kind of there's an ethno nationalism sort of built into it. But this ideology is a tool. It's really just a tool for a leadership driven political machine that turns this story into political power.

Hannah McCarthy: This ties into something else that I'm [00:23:30] curious about. Can churches support political candidates? Like can they give to campaigns?

Nick Capodice: No, they cannot. And this is due to something called the Johnson Amendment.

Katherine Stewart: The Johnson Amendment is a provision in the US tax code has prohibited all 500 and 1C3 organizations, nonprofit organizations from endorsing or opposing political candidates. But of course, it's totally ignored or circumvented on the ground, often through what they call values voting. They [00:24:00] will put out voter guides that don't endorse any particular candidate, but they'll say they'll say they'll put the two candidates side by side and how do they vote on abortion? And so you're supposed to look and say this one checks all the boxes for biblical values, abortion, biblical marriage, etcetera. So that's one way they get around that. Now, you know, I've been working in this field for 15 years. I've published two books on the topic. And I've attended some [00:24:30] events at conservative leaning churches that talk very specifically about political candidates. But I've attended even more that will say up front, you know, we don't endorse or oppose any particular candidate. But then the way they talk about the election leaves absolutely no question in anybody's mind how you're supposed to vote in order to reflect those so-called biblical values and get people to vote one way or another.

Hannah McCarthy: Nick, [00:25:00] all of this leads me to ask, can we think of religion as just speech? Speech from a religious point of view?

Nick Capodice: One could argue that it is, but Kathrine points it out to me that it isn't. According to our tax code, religions enjoy tax privileges and benefits that for profit and nonprofit companies do not. And also religious organizations are permitted to do other things that would cause a non religious enterprise to be, rightfully, [00:25:30] sued.

Katherine Stewart: Religions are allowed to do things that no other companies and nonprofits are allowed to do. They're allowed to discriminate against women. They're allowed to discriminate against people of other ethnic backgrounds. They're allowed to exclude gay people from positions of leadership. So when they want their special subsidies and their legal privileges and their tax privileges, they say, oh, we're just speech like everybody else. But when they want to get into, [00:26:00] you know, public education or when they want to force their programs into government, they say, no, no, we're just like everybody else. So they're really trying to have it both ways. They want to have their cake and eat it, too.

Nick Capodice: I want to end here with something that Morgan mentioned to me. I mean, I went into talking with him, thinking I had like a pretty good handle on church and state. And I left the interview more uncertain than when I went in.

Hannah McCarthy: Why? What did he say?

Nick Capodice: Well, [00:26:30] he talked to me a lot about rights versus powers. Who would you say that rights are for?

Hannah McCarthy: I would say that rights are for people. We always say that rights protect people often from power.

Nick Capodice: Yeah. And I would go on to say, the more power you have, the fewer rights you need. Morgan told me You can't have a conversation about church and state without first having a conversation [00:27:00] about how you view the Constitution. Now, Catherine pointed out the growing power of the religious nationalist movement. I mean, the subtitle of her book uses the word Dangerous; The Dangerous Rise of Religious Nationalism. It is a fact that if we are talking about the Supreme Court, the current court has overwhelmingly ruled to advance conservative Christian values. But at the same time, when Morgan was telling me about the praying coach case, he pointed [00:27:30] something out that I had not considered. That if we're talking about people, Americans, instead of organizations or courts, he told me that only one out of three Americans say they are churchgoers.

Morgan Marietta: But two out of three are not. And the people who have no religious beliefs at all and no interest in it are about a quarter or a third of the population. But those people who have rights, they are now more protected. The coach is more protected now than he used to be because he is a minority and minorities [00:28:00] are what are the beneficiaries of rights protections. So you can't get around whether you're going to decide an original constitution is how you read it or a living constitution is how you read it, especially in regard to religion. You've got to pick. And it either means that we protect religious citizens. Under an original constitution where it means that we separate under a living constitution. And you must decide what this means. [00:28:30]

Nick Capodice: So. Gotta choose.

Nick Capodice: Well, that's church and state. I'm going to be thinking about it for a long time. Thank you, Charlie and Anthony. This episode was made by me Nick Capodice with Hannah McCarthy. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. Music in this episode by Jesse Galagher, Hanu Dixit, Ikimashu oi, HoliznaCCo, The New Fools, Howard Harper Barnes Fabian Tell, Valante, Kurt Lyndon, One Two Feet, Ava Low, Chill Cole, APPOLLO, Bio Unit Erik Kilkenny and the man who separates his songs into just the right key, Chris Zabriskie. Civics [00:29:00] 101 is a production of NHPR New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

BONUS: American Girl Dolls and YOU

Is there such a thing as too much American Girl Doll on a podcast about civics? No, say we! This will, however, be the last of it. After publishing our first two episodes we heard from SO many people about what American Girl means to them. These dolls and their stories really meant something, and continue to, to a lot of our listeners. So today, we'll hear from some of you AND from one very funny, very good social media creator who is keeping her American Girls in rotation.

If you want to check out and follow Nicole Daniels (and uh... you should) you can do that on Instagram or Tiktok @nicoleolive


Transcript

Coming soon


 
 

Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

What Are Government Shutdowns?

How do shutdowns happen? Why do they happen? How are they prevented, and who do they affect?

Today we share a quick recap of what happened on Saturday, 9/30/23 when the government almost shut down, and then explain all the ins and outs of government shutdowns. Have they always been part of our legislative process? How do they happen? And what happens when they happen? Our guest is Charles Tiefer, professor at the University of Baltimore School of Law.

Support our show today with a gift of $60 or more to get yourself a vintage Civics 101 baseball cap. You'll look great in it, we promise.


Transcript

Nick Capodice: Doo doo doo doo doo doo doo doo doo doo. Are you recording? Yes, you are. Oh, hello, everyone. It is Monday, October 2nd, 2023. And as of this moment, the government is not shut down. But we came really close. So before we launch into what government shutdowns are, why they happen, what happens when they do happen here is a super fast summary [00:00:30] of what went down this weekend just in case anybody out there missed it. Now to start, government shutdowns usually happen when one party is pushing up against another party in a different seat of power. And an agreement cannot be made in time to decide how the government will fund itself. Now, what happened a few days ago was unique because it was kind of one sided. The Republican Party in control of the House could not come up with a consensus among themselves. Speaker of the House Kevin McCarthy [00:01:00] had worked with President Joe Biden months ago to create a budget. However, several hard right members of the GOP opposed that budget. Nobody was budging. No resolutions could pass. Shutdown seemed imminent, and everyone was having frantic meetings in back rooms. So the Senate presented bipartisan legislation that would avoid a shutdown, a continuing resolution, and House Speaker McCarthy refused to put it on the floor of his chamber for a vote.

Nick Capodice: Instead, McCarthy presented a different continuing [00:01:30] resolution that catered to the hard right members of the House thinking that would win, since the Republicans do control the majority there. But it was not hard right enough for certain members. And then that resolution failed. So to prevent a government shutdown, Speaker McCarthy would have to present legislation that wasn't just appealing to the GOP. It had to get support of the Democrats to pass. And that's what happened Saturday night. Hey, [00:02:00] Saturday night, just another Saturday night. A bipartisan 45 day continuing resolution was passed under suspension of the rules, which is a way to fast track legislation with limited debate. And you need a two thirds majority to do that. It passed 335 to 91 with 90 Republican votes. All the hard right members and one solitary Democrat vote against it. That lone Democrat, by the way, is Illinois Representative Mike Quigley. He has a very large Ukrainian constituency, and this [00:02:30] resolution lacked support for Ukraine. So next in the process, that resolution passed overwhelmingly in the Senate, 88 to 9, and it was signed by President Biden. Long story short, we're open for at least another 45 days. And we've clearly got to do an episode on the speaker of the House. Toute suite. All right. Here is everything you need to know about government shutdowns.

Hannah McCarthy: Nick Yeah, I think that I have done a pretty good job of [00:03:00] not referencing The West Wing on this show. I think I've shown a lot of restraint.

Nick Capodice: I think that's fair.

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

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

Hannah McCarthy: It is. But today I'm doing it. I'm breaking. [00:03:30] I'm going to reference The West Wing quite a bit. Also, by the way, for anyone who has never heard of or never seen The West Wing, it is a TV show from the 90s and the early aughts about a fictional president, Jeb Bartlet and his administration. And it has been roundly praised for being relatively true to the actual goings on of the West Wing, if pretty idealistic and sentimental, Which is why I cry all the time. And the government of Myanmar reportedly [00:04:00] used The West Wing to study how democracy works.

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

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

West Wing: And I said no.Let's [00:04:30] be clear, sir. You will be held responsible for shutting down the federal government.Then shut it down.

Nick Capodice: Oh, it's so dramatic, Mr. President.

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

Nick Capodice: I [00:05:00] feel like nowadays the announcement of a government shutdown would elicit nothing more than like a trombone going wah wah wah.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

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

Archival: Top Democrats Nancy Pelosi and Chuck Schumer. Tonight, the possible shutdown less of a concern now than tonight. Lawmakers racing [00:05:30] to prevent a government shutdown both chambers.

Archival: So we told the president we needed the government open. He resisted. In fact, he said he'd keep the government closed for a new.

Archival: Poll shows more Americans blame the president and his party for this historic.

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

Nick Capodice: I [00:06:00] feel like government shutdowns are pretty commonplace nowadays. But I do want to point out, I don't remember hearing about them when I was a kid.

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

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

Hannah McCarthy: Well, before we talk about what a government shutdown used to be, [00:06:30] let's quickly establish what it actually is.

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

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

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

Hannah McCarthy: Correct. Just before the 2018 shutdown, this is when we were on the verge of it and everyone was like, what does the shutdown mean?

Charles Tiefer: Again, annual spending bills are supposed [00:07:00] to regularly follow one after the other. So as one expires, the one for the spending for the next year takes over. But if you have a giant glitch in the spending process, the one for a prior fiscal year expires and there's no new one in place. And that means the government finds it has an empty wallet without any money in it that it can spend.

Nick Capodice: In other words, a government shutdown [00:07:30] is when the government fails to fund itself.

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

Nick Capodice: Wait, we haven't always had them?

Charles Tiefer: No.

Hannah McCarthy: Our government did not have its first shutdown until 1976.

Nick Capodice: So for the first 200 years of our government's existence, we didn't have a single shutdown. Correct. So what on earth went wrong?

Hannah McCarthy: Before the mid 70s, the [00:08:00] president had way more control over the budgeting process. Then Richard Nixon came along and took it to the next level. He refused to spend congressionally appropriated funds.

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

Hannah McCarthy: Congress got mad and passed the Congressional Budget and Impoundment Control Act of 1974 [00:08:30] to gain more control as is in the name. 1976 came along and President Gerald Ford vetoed an appropriations bill because he felt trapped by a Democratic Congress. He wanted more control and the government shut down for ten days.

Nick Capodice: Did everyone freak out?

Hannah McCarthy: Not really. Everyone assumed Congress would just figure it out. And they did. Also, because we'd never had a shutdown before, the government just went on spending money [00:09:00] that it hadn't appropriated. The attorney general later decided during the Reagan administration that spending money you didn't have was illegal. All right.

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

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

Nick Capodice: Eight shutdowns.

Hannah McCarthy: Yeah the most of any president ever.

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

Hannah McCarthy: Alright. So [00:09:30] here is the big shift that changed government shutdowns forever. Before the 1990s, government shutdowns were typically about line item quibbles, disputes over very specific funding decisions. For example, we shut down under Carter for a full 18 days when he vetoed an appropriations bill that funded an expensive nuclear powered aircraft carrier.

Archival: We were going to hold down government spending, reduce the budget [00:10:00] deficit and eliminate government waste. So what.

Nick Capodice: Changed in the 90s?

Charles Tiefer: Oh, that was a titanic clash in 1995. A new Republican House and a Republican Senate had been elected in the 1994 election. So you had the first Republican Congress in ages and ages and ages had been decades since there had been a Republican House. This was led by Speaker Newt Gingrich, [00:10:30] and he thought that this would batter down the doors of the White House and that he would make them sign bills about key spending programs, including perhaps cuts in entitlements like Medicare, Medicaid.

Hannah McCarthy: He talked about letting Medicare wither on the vine. The fact is there is a 45% increase in general Medicare spending. [00:11:00] That is twice the inflation rate over the next seven years.

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

Charles Tiefer: And President Clinton, who had lost the Congress in the 1994 election, had been elected with a strong Democratic Congress in the 1992 election and then lost in the midterm election. He had laid low for a while. He hadn't been fighting. He hadn't been standing up visibly against the Republican Congress. But he stood [00:11:30] up on the shutdown and he said, you want to shut me down? Go ahead and shut me down. I'm here to protect Medicare, Medicaid, the environment and Social Security. And he drew the line in the sand. And that was what the government closed down on that clash at the top level.

Nick Capodice: That sounds familiar.

Hannah McCarthy: Doesn't it, though?

West Wing: You will be held responsible for shutting down the federal government.

West Wing: Then shut it down.

Hannah McCarthy: Okay. So this major shutdown happens in the 90s [00:12:00] and it lasts 21 days. And this is a big deal. And I don't know why you don't remember it, probably because you were a teenager and had other things on your mind. But the point is, the government shuts down for a long time and this time it is about something big. It's not some small line item. It's about political ideologies of a president.

Nick Capodice: Just like Jeb Bartlett.

Hannah McCarthy: Just like Jeb Bartlett.

West Wing: We still haven't cut enough spending. I [00:12:30] agree. I want you to cut agriculture subsidies. And you want me to cut Medicaid again. You know, I'll veto any Medicaid cuts. And I know you won't give me any agriculture cuts. So here we are.

Hannah McCarthy: And by the way, Republicans in the 90s made a bet that the public would back them in this fight, and they were wrong. It divided and hurt the Republican Party. And everyone was so wounded by this moment that for the next 17 years we avoided another [00:13:00] shutdown.

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

Hannah McCarthy: Ah 2003.

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

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

Charles Tiefer: When you have a gap, it's possible for Congress to say, we [00:13:30] don't have our act together to pass another full length appropriation bill that would be 100 pages or much more, depending on which one it is. We don't have our act to do that, but we could pass a one paragraph statement that you just continue spending for the next 30, 60 or 90 days at the rate from last year. And that's it's like a bandage over the sore and it works during that period. The government has a wallet. There are many complaints [00:14:00] about that situation, but it is not a shutdown.

Nick Capodice: Which is something that President Biden signed to avert the first potential shutdown of his administration in 2021 and again in 2023. But Hannah, our longest shutdown so far, 34 days under President Trump in 2018, that seemed to confirm this new normal that government shutdowns will be the inevitable result of partizan battles between Congress and the president, [00:14:30] and they don't seem to have any lasting political consequences. So what happened?

Hannah McCarthy: Well, we saw our first government shutdown since Clinton during the Obama administration with this big fight over the Affordable Care Act about. Three weeks ago. And. As the federal government shut down the Affordable Care Act's health insurance marketplaces open for business across the country.

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

Hannah McCarthy: And also I think another example [00:15:00] of partizanship of a Congress that does not want to compromise, because before the 90s remember, shutdowns were typically short and represented the time that it took to make a compromise on usually something smaller. And that's just not really the case anymore. So Obama had just the one shutdown, but then Trump had three, although one of them only lasted for nine hours. And now, you know, so for me, when someone at the FDA tells me, as they [00:15:30] recently did, that they might not be able to do an interview in a week because the government might be shut down. I'm like, Yep, that sounds about right.

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

Hannah McCarthy: At least in our current political climate. And for us laypeople, us non-government employees, who can kind of shrug at a shutdown because it isn't reflected in our paychecks, I feel like we [00:16:00] should emphasize that a shutdown does matter to everyone. It does affect your life. And we're going to find out how after the break.

Nick Capodice: Before we get back to the show, I just want to tell our listeners that it is our podcast Fun Drive, which is the merry time of year where we give the Swaggy swag back to you to thank you for supporting the show. Make a one time $60 donation [00:16:30] to Civics 101 and you won't just be helping us break down the intricacies of our government, but you'll also get a rad vintage Civics 101 baseball cap. Also, the first 250 supporters of the show will also get a very cool and nerdy sticker. So make that gift right now at our website, civics101podcast.org, or just click the link in the show notes.

Nick Capodice: All right. Let's get back to it. What actually [00:17:00] happens when the government shuts down?

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

Charles Tiefer: The government has various guides, legal opinions of the past, practices of the past guidelines and so forth to follow, which say some activities can continue to be funded sort of on an emergency basis so that the armed forces aren't left without the ability to [00:17:30] to get ammunition. Things that must continue on an emergency basis are able to. But the government splits apart and quite a lot of its activity isn't. Emergency is just a continuing need of the public and that it can't spend on during a shutdown.

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

Charles Tiefer: Among the examples. So most of the IRS shuts down. If you have a question [00:18:00] and you need to get an answer, you can't get an answer. You can't call up. No one will answer the phone.

Hannah McCarthy: Now, what shuts down during a shutdown? All depends on what has or is not been funded at that point. But you're usually going to see the park's services close up shop, meaning bye bye to your trip to Yellowstone. The same goes for Smithsonian museums and the National Zoo. Immigration courts typically close as if the backlog wasn't bad enough, most of the Department of Agriculture, which [00:18:30] monitors farming and forest regulation, shuts down. Nasa even has to power down some of its large scale instruments.

Nick Capodice: Really?

Hannah McCarthy: Yeah.

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

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

Hannah McCarthy: And things like entitlements, meaning Medicare and Social Security, those don't need annual spending bills. So those keep churning. But there are examples of people [00:19:00] being disastrously affected by a government shutdown.

Charles Tiefer: I can tell you what one of the most horrible examples of what happens during a shutdown in the Health and Human Services, they have what they call trials, tryouts, tests for for new drugs, new treatments, and new people cannot be enrolled in a clinical trial. New patients, desperate new patients cannot [00:19:30] be enrolled in clinical trials during a shutdown period. And so you would see you saw the last time that there was a shutdown, these frantic parents saying, I can't get my son or daughter into a trial. And they've got one of these rare types of childhood cancers that there's no good regular treatment for. I can't imagine what insanity is going on that they're not letting my child get enrolled.

Hannah McCarthy: And just to be clear [00:20:00] in terms of who is affected by something like that, as of October 2021, there were over 100,000 clinical trials registered in the United States alone. Halting that much work can have devastating consequences.

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

Hannah McCarthy: Well, fortunately, that's considered an emergency service. And for example, HHS created a full what [00:20:30] we're going to do with Covid 19 if the government shuts down plan. But keep in mind, these emergency workers, these people who still show up and do the job, they are technically working without pay.

Charles Tiefer: There is no money for them. It used to be the custom that when the shutdown was over, they would pay people retroactively. But there have been threats during recent pre-shutdown periods. By some you might call some anti-government or small government [00:21:00] people who who say let's we don't want to pay the civil service, let's not pay them at the end of the let's not pay retroactively at the end of the shutdown.

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

Charles Tiefer: Well, that has gotten more organized a few decades ago. It was pretty random. Supervisors at low levels would make the decisions. But now the there is supervision on high from the White House. [00:21:30] They keep a pretty elaborate tab to make sure there's some uniformity in what's shut down and what's not shut down so that the different cabinet departments have some kind of a similar read.

Hannah McCarthy: No matter how well a shutdown is organized, it is still a shutdown. There is a civic impact. [00:22:00] A shutdown affects how we think of our government. The public does not like it.

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

Nick Capodice: Essentially, even if it is commonplace, it's [00:22:30] the kind of thing we roll our eyes at. But expect shutdowns do endanger faith in our government, which I feel is bad for all of us in the long run.

Hannah McCarthy: And Nick, just to bring this walk and talk full circle. This is exactly the point that that West Wing episode is trying to make. That shut down is trying to make the government shuts down because there was a compromise to keep everything going. And then that compromise is retracted. [00:23:00] And Jeb Bartlet is like, do your job.

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

Nick Capodice: This episode was made by Hannah McCarthy with me Nick Capodice and edited by our executive producer, Rebecca Lavoie. Christina Phillips is our senior producer. Music In this episode by [00:23:30] Xylo Zico Wild Light Meter. Daniel Birch Cycle Hiccups and Day-o. Is there anything in the news that you think we should do more explainer episodes about? We would love to hear what those things are so we can get to work on them. Send us an email at Civics 101 at nhpr.org or you can tweet to us. I just can't stop saying tweet. Don't get mad at me at Civics 101 Pod. And don't forget you can support the show with a donation right there in the show notes. Get yourself a hat. It's fast. It's fun, and you're going to be supporting work that really matters. [00:24:00] Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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Did American Girl Dolls Do Right By History?

For so many of us, American Girl dolls were more than just toys, they’re how we learned about the past. But is American Girl’s version historically accurate? Believe it or not, there's no shortage of scholars who have a lot to say about that.

This episode of Civics 101 is all about dolls, and what one beloved brand got right – and wrong – about the American experience.

DO YOU LOVE WHAT WE DO? SUPPORT IT BY MAKING A DONATION!

Guests include Marcia Chatelain Pulitzer Prize-winning author and the Penn Presidential Company Professor of Africana Studies at the University of Pennsylvania; Spencer Crew, former president of the National Underground Railroad Freedom Center and professor of history at George Mason University; Emilie Zaslow, author of Playing with America’s Doll: A Cultural Analysis of the American Girl Collection; and Molly Rosner, author of Playing with History: American Identities and Children’s Consumer Culture.

LISTEN TO PART 1:

LISTEN TO PART 2:


Transcript:

American Girl Part 1

Justine Paradis: [00:00:02.12] Justine. Hannah. Nick. Hannah. Justine. Nick. Samantha. Samantha. Oh, my God. Samantha.

 

Nick Capodice: [00:00:13.04] That's she.

 

Justine Paradis: [00:00:15.29] It's her. Her hair. Yeah.

 

Hannah McCarthy: [00:00:18.77] So, this is, um. This is Samantha.

 

Justine Paradis: [00:00:23.30] Can I hold her?

 

Hannah McCarthy: [00:00:23.90] Yes, please. Please describe for our listeners what you've got in your hands there. I have not held an American girl doll in a really long time. This is actually. I feel emotional. Oh, wow. Look at the teeth. So this is a Samantha doll who has, I would say, seen better days.

 

Hannah McCarthy: [00:00:41.24] She's seen better days, I believe. She received a small haircut at some point. Her hair is, um.

 

Justine Paradis: [00:00:46.73] It does look like she got a haircut and bangs specifically. She maybe had an emotional got bangs.

 

Hannah McCarthy: [00:00:51.42] Samantha has bangs

 

Justine Paradis: [00:00:52.97] all right.

 

Nick Capodice: [00:00:53.45] Did she get those at the McCarthy salon?

 

Hannah McCarthy: [00:00:53.45] Okay.

 

Justine Paradis: [00:01:01.43] It does look like she's wearing a off brand dress.

 

Hannah McCarthy: [00:01:06.50] This is not off brand. It is off era, though. Can you guess where that dress?

 

Justine Paradis: [00:01:12.17] Kirsten.

 

Hannah McCarthy: [00:01:12.71] Yes. Yes.

 

Nick Capodice: [00:01:14.33] Wow.

 

Justine Paradis: [00:01:14.75] And so little loose in the leg. A little.

 

Hannah McCarthy: [00:01:19.07] This is okay. I have someone else with me here.

 

Justine Paradis: [00:01:22.79] Kirsten?

 

Justine Paradis: [00:01:23.39] Yeah. Hey.

 

Hannah McCarthy: [00:01:25.07] She's wearing a really anachronistic outfit.

 

Justine Paradis: [00:01:26.90] This is a modern American girl dress. This is like a dress. An outfit that I would have been jealous of in middle school and, like, wished it came in in my size.

 

Hannah McCarthy: [00:01:34.28] Exactly. Exactly.

 

Nick Capodice: [00:01:35.72] Wait, did Kirsten work at the North face?

 

Hannah McCarthy: [00:01:40.25] And then there's.

 

Hannah McCarthy: [00:01:41.21] This you'll be familiar with.

 

Justine Paradis: [00:01:42.65] Yeah. This is Samantha's outfit, and with a really nice locket.

 

Justine Paradis: [00:01:46.97] Does it open? It does. Oh, yeah, it totally does. I didn't have Samantha, but.

 

Hannah McCarthy: [00:01:51.83] Yeah. So we've got some dolls in the studio for this episode of Civics 101.

 

Justine Paradis: [00:01:59.54] So did you pick Samantha because of the hair?

 

Hannah McCarthy: [00:02:01.65] I picked Samantha. So, Samantha, for those who don't know, has brunet hair or brown, as some people might call it. I also had that kind of hair, and I still do as a child. But also I picked Samantha, to be totally honest with you, because she has a gold locket, which you just pointed out. And the original doll you were supposed to cut out from this teeny tiny piece of paper, these pictures of her dead parents.

 

Justine Paradis: [00:02:29.19] Because she's an orphan.

 

Hannah McCarthy: [00:02:30.03] Because she's an orphan to put in the locket. And I, in trying to cut out that heart with not the best of fine motor skills, totally botched it. And so Samantha's locket remained empty. forever.

 

Justine Paradis: [00:02:43.98] No memories forever. Devastating.

 

Hannah McCarthy: [00:02:45.57]  Upsetting. Yep. Everyone, this is Justine Paradise, by the way, of podcast. Outside/In fame and also other fame.

 

Justine Paradis: [00:02:54.54] Other fame. I'm famous for many things. Yes. Hi. Thanks for having me.

 

Hannah McCarthy: [00:02:58.56] Hello. I'm Hannah McCarthy. As you know. This is Nick Capodice.

 

Nick Capodice: [00:03:02.37] Hi there. Just over here.

 

Hannah McCarthy: [00:03:04.86] And this is Civics 101. And today, believe it or not, we are talking dolls.

 

Dramatic Music: [00:03:26.03] (Musical intro)

 

Justine Paradis: [00:03:27.67] That is. So powerful to me. It takes me so right back. Oh, my God.

 

Hannah McCarthy: [00:03:33.79] This is you're hearing music from a computer game that Justine and I were very fond of, wherein you stage plays and it's the American Girl dolls, and you've got, like, their bedrooms and the outdoors and the kitchen.

 

Justine Paradis: [00:03:48.79] This is one of the many offshoots of the American Girl Doll brand. And it was it was probably the weirdest one, I would say.

 

Hannah McCarthy: [00:03:54.64] It was super weird. And you could type in their their lines for the plays they were doing and a computer would read it. And Nick's pretty good at computer voices.

 

Nick Capodice: [00:04:04.45] Oh, yeah. I was hoping you'd ask me to do a little fake computer.

 

Hannah McCarthy: [00:04:06.91] Just do a little.

 

Hannah McCarthy: [00:04:07.57] Like, give us an example.

 

Justine Paradis: [00:04:08.83] Read a line.

 

Nick Capodice: [00:04:10.33] Here. Dolores was a good teacher. She showed Clara a faster way to knit the heel on a sock. She showed Francisca how to sew a patch over a hole so that it hardly showed at all.

 

Hannah McCarthy: [00:04:22.75] That's exactly. That is exactly what it was like. That's what it was like. I think you could select, like, male voice, female voice, maybe even British voice.

 

Justine Paradis: [00:04:31.76] There were some really good ones. There were actually characters of Maria. Was the robots?

 

Hannah McCarthy: [00:04:35.61] Yes. Yeah.

 

Nick Capodice: [00:04:36.89] Can I interrupt for a sec? Sure. What is going on here?

 

Hannah McCarthy: [00:04:44.89] Well, Nick, to my understanding, you had neither dolls nor toys of any kind as a child.

 

Nick Capodice: [00:04:49.80] Yeah, that's right. Basically.

 

Hannah McCarthy: [00:04:51.34] And either way, you would not have had these toys that are here on the studio table because these came into the world in 1986. Your childhood was prior to that.

 

Nick Capodice: [00:05:01.18] I would say my childhood extended past 1986. So that's just my opinion.

 

Justine Paradis: [00:05:05.24] All right. I need to hear more about, like the lack of the rocks and sticks you apparently played with. But for another time.

 

Nick Capodice: [00:05:10.54] Another time.

 

Hannah McCarthy: [00:05:12.19] But for Justine and myself and so many people that I know, these dolls, while they might just seem like dolls to. Although, Nick, do they seem like just dolls to you? I just got to know.

 

Nick Capodice: [00:05:22.12] No, they do. They have something about them.

 

Nick Capodice: [00:05:25.96] Are you just saying that? You're not just saying that because of you?

 

Hannah McCarthy: [00:05:27.58] I'm saying it because I can. I can. I can feel something.

 

Nick Capodice: [00:05:30.88] I've never actually seen a doll like this. I also didn't know that dolls close their eyes when you lay them down.

 

Hannah McCarthy: [00:05:36.02] Okay, well, that's.

 

Justine Paradis: [00:05:38.17] A big part of them.

 

Hannah McCarthy: [00:05:39.07] That's a lot. A lot of dolls go to sleep when you lay them down. But anyway, you know, it was not just my childhood that was influenced by these dolls and playing with them, but these dolls came with these books, some of which I've also brought into the studio. And these represent like a really engrossing encounter with American history. That's what came along with all of these dolls. And today, Nick, we're going to talk about all of this. You can feel free to ask whatever questions you have. But first, I just want to talk a little bit about why we're doing this. Justine, you were the person who came up with the idea to make a Civics 101 episode about American Girl dolls. Can I ask, do you have a why? Was there a reason?

 

Justine Paradis: [00:06:21.29] Oh, I mean, I guess I would just say that these books, like I remember where in the library they were when I was growing up, and I just remember it was learning about history without them, like saying, let's learn about some history. It was just a real like the stories were so good, but it was how it's such a really strong memory of, of the books themselves. And the dolls were such a big part of my life. But I also just was kind of wondering years later, like, we're revisiting so many pillars of our childhood, like, was it a good history education? I don't know. Did they do a good job at communicating American history or American civics? And I just thought that you should look into it for us. Yeah.

 

Hannah McCarthy: [00:07:04.21] And so so I did. Because for me, it was it was the sort of same thing. And it was this like the first foray into American history that actually stuck for me. Yeah, like I thought about it, I had a vague understanding of various areas of American history, and I can attribute that to remembering the stories of these girls throughout history.

 

Justine Paradis: [00:07:25.66] I also, so to answer that again, this is the summer of the doll. You know, Barbie is in the air everywhere. This was the summer of the doll. But we're also having this little renaissance of American Girl as well. I'm seeing it pop up everywhere. Yeah. So that's why and I wanted you to explore what is it actually any good do they did a good job? Did they do a good job of teaching us history?

 

Hannah McCarthy: [00:07:48.62] This is a good question.

 

Hannah McCarthy: [00:07:49.52] And one of the guests you'll hear from later described this in a way that I thought was really interesting, which is that women in their 30s, looking back to these dolls, the love of these dolls and their histories, is unironic. You know, And I think there's a little bit of with the response to Barbie, there is this like a smidge of irony. It smacks of a little bit of like and there's true love there as well. Like, I don't want to dismiss it out of hand, but there's something about these dolls. Why do I still have these? Because my mom was like, I'm going to get rid of your toys. And I was like, well, you can't get rid of the American Girl dolls, though, because, you know, there's something about them.

 

Justine Paradis: [00:08:24.32] Something about them.

 

Hannah McCarthy: [00:08:25.34] Okay. So what is covered by these history books, Justine, that you're mentioning? I just want to give our listeners a sense. Okay. So we're talking about these dolls, right? But they're not just dolls. These are dolls with, as you said, Justine, a history right through these stories. But they've got this whole rich world built around them. Right? So they've got a story, a family, a family tree. There's a whole history there. They've got friends. They've got places they go. They've got personalities, struggles. Et cetera.

 

Hannah McCarthy: [00:08:54.95] So first, Kirsten Larson, the pioneer experience. These books also cover New Mexico prior to the Mexican-American War, Oregon, prior to permanent white settlement and the Nez Perse people in what became Oregon. Samantha the Progressive era, World War two, enslavement, the Civil War, the Great Depression, the Revolutionary War, the War of 1812, believe it or not, comes up at a certain point, which is really it's a little funny. So this is an education company. We can say that American Girl is an education company or a brand. It's also a toy company.

 

Justine Paradis: [00:09:35.27] Yeah.

 

Hannah McCarthy: [00:09:35.69] And one of the many questions that I had going into this was, you know, we might talk about this endlessly, Justine, but are there other people out there who. Want to and can talk about American Girl dolls.

 

Marcia Chatelain: [00:09:48.39] Oh, my gosh. This stuff is so fun to think about.

 

Spencer Crew: [00:09:51.48] I enjoy it. I'm a historian, so I may be biased.

 

Emily Zazlow: [00:09:54.45] So I actually started studying American Girl when I was doing a master's program in the 1990s.

 

Molly Rosner: [00:10:00.57] Sorry, I know I've been talking a lot. I have. I love this. I mean.

 

Justine Paradis: [00:10:05.70] As it turns out. Yes, very much. Yes.

 

Hannah McCarthy: [00:10:08.82] Like very much. Yes, yes, yes.

 

Justine Paradis: [00:10:11.46] So, Hannah, can we just get something out of the way first? Which doll were you?

 

Nick Capodice: [00:10:19.05] Hold on. What do you mean?

 

Justine Paradis: [00:10:20.76] As in, like, which doll do you identify with as a person? It's like, which power ranger were you? Or which Ninja Turtle?

 

Hannah McCarthy: [00:10:26.94] Leonardo. Clearly.

 

Justine Paradis: [00:10:28.68] Except that this is much more important, I think. American Girl Doll.

 

Hannah McCarthy: [00:10:31.32] Yeah, it carries more weight. So I identified very strongly with Kirsten. So she's a pioneer. She's a homesteader. She wears a candle crown for Saint Lucia Day, Swedish Saint Lucia, Day. She's got a pet dog who gets stung by a bumblebee. I don't know if you remember that. I remember that very fondly. That was. That was me.

 

Justine Paradis: [00:10:50.71] I think I was Felicity. And that maybe was because it was the first doll I got. But she was just sort of spunky and, like, tomboyish. And that's that was a serious pattern in my childhood.

 

Hannah McCarthy: [00:11:00.73] She wears there's like one of the covers of her books is So Felicity is a colonial era. Yeah, Revolutionary War. And she's wearing pants and riding a horse in one of the covers of her book.

 

Justine Paradis: [00:11:10.45] She always, like, steals away in the night to go ride the horse.

 

Hannah McCarthy: [00:11:13.12] So, yeah, it's like, really cool.

 

Hannah McCarthy: [00:11:15.43] Nick, I don't think you have a doll identity because that would be your choice, of course. But like, I would assign you Felicity to probably Molly now.

 

Justine Paradis: [00:11:23.30] Always a really good one.

 

Nick Capodice: [00:11:24.40] I'll take Molly.

 

Hannah McCarthy: [00:11:25.45] Yeah, well.

 

Nick Capodice: [00:11:27.13] I appreciate that. And I agree with it or disagree with it once I figure out what it means. But the point I'm going to jump in here and ask is, while I see this foot and a half long doll here in front of me.

 

Justine Paradis: [00:11:39.64] What a weird way to put it.

 

Nick Capodice: [00:11:40.81] Elaborate doll dress. I do not fully understand what it is I'm actually looking at like what is American Girl?

 

Justine Paradis: [00:11:49.42] Great place to start.

 

Molly Rosner: [00:11:50.83] I'm going to try to tell it as a little bit of like a story, so that'll help me keep it in order. Okay.

 

Hannah McCarthy: [00:11:56.05] This is Molly Rosner. She's the author of Playing With History: American Identities and Children's Consumer Culture.

 

Nick Capodice: [00:12:03.46] Children's Consumer Culture. That kind of hurts a little bit. It's kind of.

 

Justine Paradis: [00:12:07.75] The invention of childhood. I feel like.

 

Nick Capodice: [00:12:10.87] The sale of it, the sale of a child's soul.

 

Molly Rosner: [00:12:14.89] In 1986, Pleasant Rowland, the founder of the Pleasant Company, sent out about half a million catalogs across the country, addressed specifically to nine year old girls. They were large oversize catalogs with thick paper. They were really beautifully put together and they were filled with life size pictures of these 18 inch tall dolls. So you could really immerse yourself as a kid in this piece of mail that came just for you. It had letters at the beginning addressed to the young consumer, and it was the only way to purchase these dolls was through the mail. It was a very quaint and personal feeling, kind of marketing.

 

Justine Paradis: [00:13:02.14] Guerilla marketing to nine year olds. I remember those catalogs.

 

Hannah McCarthy: [00:13:05.02] I remember them viscerally and fondly. Yes. And this marketing absolutely worked like I don't know why I received American girl catalogs, but I eventually did.

 

Justine Paradis: [00:13:15.07] They found you?

 

Hannah McCarthy: [00:13:15.64] They found me. So the story goes that Pleasant Rowland.

 

Justine Paradis: [00:13:15.64] Her name is Pleasant.

 

Hannah McCarthy: [00:13:20.08] Pleasant also, by the way, she's number 77 on the Forbes 100 of America's self-made women.

 

Justine Paradis: [00:13:26.50] Really? Wow. Yeah.

 

Hannah McCarthy: [00:13:28.27] That's just really interesting. She built this whole brand, right?

 

Justine Paradis: [00:13:30.76] It's like, wow. Okay, how much money did she have?.

 

Hannah McCarthy: [00:13:32.71] Have. Well, okay, so here's the story, right? So the story goes that Pleasant. Rowland was visiting historical Williamsburg and was inspired. (Same), you know for good or for ill.

 

Justine Paradis: [00:13:44.75] Also this tracks.

 

Hannah McCarthy: [00:13:45.64] Yeah yeah. So that was like that was one thing in her mind. She also apparently was one day out buying dolls for her nieces and noticed that the only dolls available really for young girls were Barbie and Cabbage Patch. So kids basically had like two options. They could play grown up pretending to be this like independent, idealized lady. Or they could play grown up pretending to be a parent caring for this like lumpy baby.

 

Justine Paradis: [00:14:09.46] And I think we should say that porcelain dolls that looked like children definitely did exist at the time. Yeah, but Pleasant made dolls that you could drop without breaking. Like those dolls were sort of up on the shelf, you know? Yeah.

 

Hannah McCarthy: [00:14:21.40] But, you know, it was like. It was like, be a mom or like or play with this, like, frankly, kind of sexy lady. So you wondered, you know, like, where did she have a bunch of money? Just she has a bunch of money now. She ended up selling her brand for millions and millions of dollars down the line. We'll talk about that in brief. But she had a bunch of money because she had written successful kids textbooks. That was what she'd been doing. So she thought to herself, Know what if I created historical dolls who don't look like grown women? They don't look like babies. These dolls look like young girls. And these girls live in, and they represent these seminal eras of American history. And from there, three dolls were born. Molly, Kirsten and Samantha were born.

 

Justine Paradis: [00:15:11.45] Quick bios, by the way. I think we should do. Yeah. Molly McIntire, a schemer and a dreamer. Growing up in Illinois during World War Two. Molly has glasses.

 

Hannah McCarthy: [00:15:20.27] Which, like, truly. I think that passed for inclusivity in the late 80s.

 

Justine Paradis: [00:15:23.81] Yeah. So enlightened. Then then Samantha Parkington in Our Presence. She lives in Mount Bedford, New York.

 

Nick Capodice: [00:15:30.02] Mount Bedford, New York. Yeah. Mount Bedford. There's a Bedford, New York. And there's a Bedford Avenue in New York, and there's a mount Kisco. But to the best of my knowledge, there is no Mount Bedford.

 

Justine Paradis: [00:15:40.43] Well.

 

Hannah McCarthy: [00:15:41.39] They are dolls. These are dolls. The point here is that Samantha is supposed to live in like, a really fancy town north of Manhattan. Samantha is rich.

 

Justine Paradis: [00:15:50.13]  It is the dawn of the progressive era, and she's living with her grand Mary because, as previously mentioned, her parents have died. She is an orphan. She is headstrong, climbs trees, sneaks around.

 

Hannah McCarthy: [00:16:01.62] Yeah. A lot of these characters, either they're explicitly called tomboys or it's like, you know, nodded to like they're not acting the way that, quote unquote, girls should act anyway. But with Samantha, she has the frilly clothes like she's the jolliest of dolls.

 

Justine Paradis: [00:16:17.19] There's also so much of a fantasy about being an orphan and all children's literature. I don't know what it is, but Samantha fit in that. But then we have Kirsten Larsen, immigrant from Sweden, who ends up in Minnesota in the 1850s, Homesteading on the Plains and helping Mama with the new baby.

 

Hannah McCarthy: [00:16:31.44] That's right.

 

Hannah McCarthy: [00:16:31.74] I think the baby's name is Britta or Britta. Probably Britta.

 

Nick Capodice: [00:16:34.59] Britta.

 

Hannah McCarthy: [00:16:35.55] All right, so we've got it right. Three historically oriented dolls to launch. They come complete with a staggering array of accessories and clothing. The catalog is go out.

 

Molly Rosner: [00:16:47.83] The fact that it was mail order catalogs and the price point of these dolls made it pretty clear that there was a specific intended audience of upper middle class young girls with parents who may be concerned with the lessons of history and multicultural American identity. So these dolls each had to do with historical eras. And the original logo for the Pleasant Company was a kind of sepia tinted maroon silhouette of a young girl reading a book with her doll next to her. So reading was a really crucial and foundational part of the branding, and those books were each so, you know, they were supposedly meant to teach the young reader history. But within those books, you could find very detailed descriptions and plots entire plots that revolved around merchandise. So the catalog was filled with clothing and bedding and accessories, food that were influenced by historical materials and trends. I mean, they were plastic for the most part, but they mimicked different historical eras. But those items appeared in the stories, every single one of them. So you weren't purchasing just a lunch pail for your doll. You were purchasing part of the story of her bringing her lunch and sharing it with her friend. You were partaking in that history in a really active way by purchasing it.

 

Speaker9: [00:18:33.55] By the way, I, deeply, deeply to the point that maybe I still do wanted Kirsten's really beautiful wooden lunchbox. It had like, cut out reliefs, remember? And it had these, like, a teeny tiny apple and cheese and sausage and bread.

 

Justine Paradis: [00:18:48.43] From Kirsten learns a lesson. She takes it to school. She's right there in the one room schoolhouse.

 

Hannah McCarthy: [00:18:52.90] I never, by the way, acquired this particular element of history.

 

Justine Paradis: [00:18:56.65] This is this is interesting to engage with history as a consumer by purchasing it.

 

Hannah McCarthy: [00:19:03.37] Yeah.

 

Hannah McCarthy: [00:19:04.24] Which I don't think and we'll talk a little bit more about this later, Justine, as a kid, I didn't think to myself, like, I'm buying history. I just I wanted it. But in retrospect. You didn't just have the books, right? You also wanted the stuff that you saw in the books. But there's a divide there.

 

Justine Paradis: [00:19:20.33] It's something about when you look at old children's books, illustrations of the books you read. Then there's some kind of feeling that happens when you look at the blue of the blueberries in that book. And it's the same when I think about those objects, about these dolls.

 

Hannah McCarthy: [00:19:34.20] I totally agree.

 

Nick Capodice: [00:19:35.15]  I had that for all the I had these books about gnomes and fairies and they had these depictions of food in them that I was like, I must eat that plum.

 

Hannah McCarthy: [00:19:42.65] The food was so significant.

 

Nick Capodice: [00:19:44.82] Your whole life, you're chasing that plum and you never catch it.

 

Justine Paradis: [00:19:47.09] Beginning of Felicity, which we haven't talked about yet, but in her father's store, the smelling of the spices and it's very sensory.

 

Dramatic Music: [00:19:53.93] Yeah. Yeah.

 

Hannah McCarthy: [00:19:55.70] So. But the thing is, I never really cared before about what exactly the Pleasant company was going for. No, I read the books, I learned the history. I loved it. I got the catalogs. I was gifted. These dolls. They were my, without a doubt favorite objects outside of, like, various little magical things they kept in boxes. But what the company was marketing exactly. And how they were marketing it and who these dolls were for were not questions that I asked until we made this episode. They are called American Girl dolls.

 

Justine Paradis: [00:20:28.38] American Girl.

 

Hannah McCarthy: [00:20:30.63] They came with specific identities rooted in explorations of American history, and they each have a book series.

 

Molly Rosner: [00:20:37.02] I mean, I think the stories are very engaging, but the catalog, the catalog allows different kind of access. And you have this sort of ability for the parents to feel a little bit righteous and moral for purchasing it because it's educational, quote unquote, educational. So in that way it also flies under the radar in a way that Barbie, for instance, can't, no matter how many careers you give Barbie, she's modeled like an adult woman. She's very sexualized. And her backstory is not quite so concrete. So she can she can morph, but she's never going to be the same kind of elevated educational doll the way the American Girl dolls were.

 

Hannah McCarthy: [00:21:21.81] So what is an elevated educational doll? How does the Pleasant company make or at least attempt to make a doll that does more? We've got that coming up after the break.

 

Nick Capodice: [00:21:35.34] But before that break, we want you to know that we have one of my personal favorite pieces of swag we've ever created here at Civics 101. And it's a baseball hat, which may sound funny from a guy who never wears baseball hats, but this one looks really cool. It says Civics 101 on it. It's Black, it's beautiful, it's organic cotton, and you're going to love it if you give $8 a month as a sustainer to Civics 101, this hat can be yours as shall be our undying gratitude. Check it out at Civics101podcast.org.

 

Nick Capodice: [00:22:19.94] We're back and we are talking about American Girl dolls and Hannah. Just before the break, you were going to tell me what it actually looks like when a company tries to do more with a doll. So what does that look like? Where do they start?

 

Marcia Chatelain: [00:22:35.45] Well, the 1990s, I think the two kind of questions about the doll industry was some of the feminist critiques of Barbie, I think were starting to emerge as more legible for a generation of parents that might have grown up with Barbie and the glamorous dolls and started to really think about whether this was good or bad for girls.

 

Hannah McCarthy: [00:22:58.76] This is Marcia Chatelain. Most recently, Marcia is the Pulitzer Prize winning author of Franchise: The Golden Arches in Black America. But she also knows and thinks about a lot of things. So many things that a staggering array of things, so smart, so smart and was kind enough to go down this American girl rabbit hole with us.

 

Marcia Chatelain: [00:23:17.69] And so you have all of these other types of dolls that are trying to fill the space that a Barbie doll can't. And so I think where American Girl fits in. It's a doll that is still very beautiful. It is reminiscent of a collectible porcelain doll, but it also has, I think, the comfort for parents who, even if they don't identify as feminist, who are concerned about how girls are playing with this historical content that is substantive and intellectual and is presented as historically accurate. So it allows for a kind of play that is very gendered but is not as concerning as perhaps other dolls on that market. I mean, I think that there's something about an affluent consumer of the 80s. You know, by the time the American girl comes out in the 90s, you have yuppie parents who are a little bit more socially conscious.

 

Nick Capodice: [00:24:15.48] So parents wanted to give their kids toys that were doing a little bit more than being fun and like these toys are going to teach them something.

 

Molly Rosner: [00:24:23.07] So in the 1980s, we see this kind of explosion of material culture and we have relatively young parents who want to incorporate lessons and values of things like multiculturalism into the toys that their kids are playing with. And they grew up with the G.I. Joe Barbie whitewashed toys overall. So American Girl represented this alternative. However, what's really important to note is that American Girl wasn't going after the parents. They marketed directly to the children. So they identified this part of childhood where there was a window for a new kind of doll for 8 to 12 year old girls, particularly, who were not yet going out shopping and and having independent lives with their friends, but were maybe looking for something a little more sophisticated than the imaginary play of six and seven year olds.

 

Justine Paradis: [00:25:25.20] What's interesting about this, though, is that, you know, sure, these dolls were sophisticated in a sense compared to Barbie or what have you, but they're at least at this point, they're not radically multicultural, like the company launches with three white girls. So I guess Kirsten is Swedish, so she's coming from another place. Samantha is an orphan, but she's also very rich, super privileged and mostly unaware of that privilege. And Molly has has glasses, but...

 

Justine Paradis: [00:25:52.11] She's also basically star spangled. There's a lot of red, white and blue going on in these books, literally.

 

Hannah McCarthy: [00:25:56.73] And so I feel like the company starts with a fairly limited definition of, quote unquote, American girl, right? Like like you said, Justine, three white girls, two of which represent a kind of can do American attitude, right? You've got the pioneer girl and you've got the girl starting a victory garden while Dad is away at war. And then you've got your basic ruffles and lace girly girl in Samantha.

 

Justine Paradis: [00:26:18.09] And I feel like it's also worth pointing out that Kirsten's story is set during the Antebellum period, but it's definitely a pioneer story. So I don't think there's much mention of the fact that the nation was on the verge of being rent asunder by the civil war here or of racial relations. Kirsten is friends with a young girl of ambiguous tribal identity named Singing Bird and singing. Bird's family is then forced off their lands due to pioneers, but it's still not of a ton of engagement with a nonwhite American identity. You know, it's just through her eyes that she's seeing.

 

Hannah McCarthy: [00:26:47.76] And Pleasant Rowland, believe it or not, open very open about the fact that she was going to hold off on releasing specifically a Black doll to the market.

 

Dramatic Music: [00:26:56.79] This is wild. That she's quoted.

 

Hannah McCarthy: [00:26:59.82] No, I agree. So like in the 80s, she's quoted in The Washington Post as saying, quote, I feel the company initially needed to get established financially before we could take the risk that may be inherent in presenting a doll via direct mail into the African American market, because typically middle class Black consumers do not purchase. As much from direct mail catalogs.

 

Nick Capodice: [00:27:22.51] Did she have any evidence to back that up? Is that even true?

 

Hannah McCarthy: [00:27:26.86] I cannot answer that question specifically. I will tell you that Marcia talked to us a little bit about the way that products of all kinds were marketed to Black consumers, and often that advertising was not what it should have been. It was not appealing. However, I think in this case, this is more an issue of perception of the market than anything else. Well, I.

 

Marcia Chatelain: [00:27:51.04] Mean, I think that this is the kind of market logic that sometimes can be proven wrong and sometimes is like a self-fulfilling prophecy. Well, you don't know if a Black doll will be commercially successful on first run if you don't first run it. Right. And I think that I'm curious if the market researchers at this time didn't understand that there was an affluent Black consumer market that I think would have embraced an American girl doll. I'm not sure if they would have embraced a doll whose storyline was tied to slavery necessarily.

 

Nick Capodice: [00:28:30.92] So as Marcia is saying here, that there is a doll explicitly tied to slavery. Yes.

 

Justine Paradis: [00:28:37.22] Addy Walker. And she starts as an enslaved person. Oh, wow. And then she and her family escape.

 

Nick Capodice: [00:28:43.67] So their first Black doll is an enslaved girl.

 

Justine Paradis: [00:28:47.09] One of the very first scenes is pretty intense in her book.

 

Hannah McCarthy: [00:28:50.69] Yeah.

 

Hannah McCarthy: [00:28:51.26] But, you know, First Pleasant has to decide that the time the market is right for Addy.

 

Marcia Chatelain: [00:28:56.72] One of the challenges I think for the Pleasant Company at that time and others is can you introduce a Black doll in the series and can you imagine a world in which the presence of that Black doll does not make the entire series unappealing? Because odds are there isn't a white consumer market for your Black doll. But just the presence of a Black doll in that same orbit could have impact on the larger brand. And that's the sad reality, I think, of how race plays out in a number of marketplaces, so that even if there is a white doll, the fact that there is a white and Black doll could turn off some consumers to the brand.

 

Justine Paradis: [00:29:41.84] So the next ought to come out is Felicity Merriman, literally a patriot growing up in Williamsburg, Virginia, during the Revolutionary War.

 

Hannah McCarthy: [00:29:49.22] Also, Justine. Do you remember this? Felicity's grandfather is an enslaver.

 

Justine Paradis: [00:29:53.42] No, I didn't remember that. Woah.

 

Hannah McCarthy: [00:29:55.10] In the books, there are two Black men who, like, quote unquote, work for her grandfather and are referred to as servants in the narrative. But then there's a looking back section of a lot of these I think all of these books.

 

Justine Paradis: [00:30:11.30] A peek into the past.

 

Hannah McCarthy: [00:30:12.08] A peek into the past and in the peek into the past history. Part of that Felicity book, it clarifies that these men referred to as servants are, in fact enslaved.

 

Justine Paradis: [00:30:21.83] Well, I don't know what to make of the fact that I don't remember that. But yeah, I guess I it's fascinating. That was sort of sanitized like that. And then only if you looked further was that revealed.

 

Dramatic Music: [00:30:35.06] Exactly.

 

Hannah McCarthy: [00:30:36.08] And Felicity like definitely is not teaching us about enslavement in America, right?

 

Justine Paradis: [00:30:41.03] Yeah. No, no, obviously not.

 

Hannah McCarthy: [00:30:43.85] But Addy, 1993, Addy Walker is released. And yes, like Justine says, she is enslaved at the beginning of her book series.

 

Marcia Chatelain: [00:30:53.24] And so I think that when we think about the other contexts in which the American girls, you know, are grappling with, whether it's, you know, World War Two, whether it's, you know, the gilded era, there's something about it that feels more doable in terms of developing a narrative out of it. The period of slavery is a little bit, I think, harder to do because it isn't a girl that is just reacting to the cataclysmic events around her. It's a girl who is deeply subject to the kind of harsh reality of the time. Does that make sense? So it's kind of like weird. And so I remember people being like, What is this? So Addy comes out in the fall of 1993, and I remember like sometimes on Black radio, I remember Addy being kind of like roasted a little bit like, What is this? And I remember conversations among people about whether or not they would get their daughter that kind of doll.

 

Hannah McCarthy: [00:32:02.24] So this is a debate that continues online and likely offline, but I have seen it online to this day. The question being really? The first historical Black doll that you release is an enslaved person.

 

Marcia Chatelain: [00:32:15.29] It's the kind of critique that sometimes emerges when a movie comes out. That focuses on the experience of slavery. And people say, well, I don't want another slave movie, meaning like, I don't want another representation of African-American history that's bound up into people being abused and exploited and having no power. I mean, I think there are many ways to look at that issue, but I think that a doll becomes a really potent place for people to kind of work out these issues around identity and their own comfort and proximity to history.

 

Justine Paradis: [00:32:50.55] So all of the characters that these dolls represent, Nick, they face adversity of some kind. They're supposed to be teaching us about the challenging beats of American history and how they molded young people, especially young girls. Molly's dad becomes a prisoner of war and she has to ration things. For example, Kirsten a pioneer. So that's just, you know, challenging. It's hard. Her best friend dies, her house burns down. You know, there's cholera, right? Yeah. Samantha, as previously mentioned, her parents are dead.

 

Hannah McCarthy: [00:33:20.47] An orphan was, maybe is, I would love to know, a perpetually compelling narrative.

 

Justine Paradis: [00:33:26.11] And then and then also, Samantha does meet girls who work in a factory and are exploited. And she gives a speech at one point about child labor. Felicity's growing up during the nation's treasonous break from England, so that's tense. But when you come to Addy again in her introductory book, the overseer of the tobacco plantation makes her eat a worm because she missed it, which is just a different emotional tenor than all of the other books and a power dynamic that we don't see in the rest. She has to endure things that none of the other dolls have to endure. So we witness her coming into enough self-awareness to realize she's an enslaved child. She's separated from her father and brother when they're sold, and then from her sister when she and her mother escaped the plantation, she's whipped. And so Marcia brought up this super reasonable question.

 

Marcia Chatelain: [00:34:13.39] How do you make a doll that's experiencing slavery? Like, that's just because if we understand the fundamentals of play as kind of fantasy and imagination, the harsh reality of slavery makes it just really strange, right? It feels incompatible. But I do think that there's something of value of saying, well, actually, you know, within the context of people being enslaved, they did have a space for joy. And there were ways that children crafted what we would call, you know, a childhood out of these circumstances. But that gets into like deep intellectual, existential stuff that is like not the point. But I do think that the I think the time that it emerges in the early 90s is when African-American history and African-American studies was also really emergent as something that was accessible and knowable to a larger public. So I think that, like, if the doll came out, you know, ten years later, I think people might have a more nuanced view of what the doll could do. But I think in the early 90s, it just wasn't very legible.

 

Justine Paradis: [00:35:22.00] Also, this is just interesting given the fact that the delay in releasing a Black doll was supposedly due to market considerations. You know, what was the marketing aim in releasing a doll who represents an enslaved character?

 

Marcia Chatelain: [00:35:34.45] So I think that from a market perspective, it may have been risky to start with the history of slavery. And at the same time, if we think about African-American girls living during periods of historical significance, I think that there will be a level of violence and a level of vulnerability regardless that I don't know if it necessarily, like, would make people feel that much better.

 

Justine Paradis: [00:36:02.02] Yeah. Even with Addie, most of her story takes place in Philadelphia, which is where she and her mother settle after they escape from North Carolina together. And she, of course, encounters racism there, too, just in daily life, like at the pharmacy. On the streetcars.

 

Hannah McCarthy: [00:36:17.68] Yeah, that's the the thing about Addie's books that I feel like we haven't really talked about yet, which is that, yes, she is born into enslavement. Yes. That is like a very important part of her story, of course. And here she is dealing with everything thereafter. You know, here she is in Philadelphia and still struggling with a whole other element of racism and subjugation. And she has a conversation with her mother where she says, you know, don't you hate white people, too, Mama? Like I hate white people. I think, you know.

 

Justine Paradis: [00:36:49.42] A question in a children's book.

 

Hannah McCarthy: [00:36:50.71] Exactly. And yeah.

 

Justine Paradis: [00:36:53.74] These themes of forgiveness, of of of resentment, of healing, of freedom. Like, it's complicated in these books.

 

Dramatic Music: [00:37:00.16] Yeah.

 

Marcia Chatelain: [00:37:00.40] But I do think that there is a sense that representations of slavery are about representations of a level of humiliation and debasement that I think is really hard, that's really hard for people, that's really hard to grapple with because. Culturally, our nation has done such a poor job in introducing people to the reality of slavery and its legacies that here you have this doll. It will be the object to project all sorts of complicated emotions.

 

Nick Capodice: [00:37:33.39] So what did Marcia say when you asked her about this? Did she think that American girl did a poor job with Addy? Like, it just doesn't work.

 

Marcia Chatelain: [00:37:41.16] I think about this as a historian and as a parent. I don't know what I think, right. Like, I think that I too struggle with this because I do think that the more ways that we have to teach young people about the history of slavery like the better. But I do think that, you know, there is a level of fantasy and play that is associated with dolls that I don't know if we have to rip away from kids. And there's something about slavery that is about a deprivation of human experience that I wonder how the doll can be a presentation, a representation of that history, and like, do you have to dial it? Like when playing with kids and this type adult, you then dial it back to say, Oh, but by the way, you know what I mean? Like she wouldn't have healthy teeth or she would have a nutritional deficiency, right? Like, and then you're like, Wow, Mom, you just ruined everything. So American Girl is is kind of challenging because it is trying to like do kind of serious history. But it's still a kid's toy.

 

Hannah McCarthy: [00:39:04.50] It is still a kid's toy. So how do you balance that serious history with a thing that you are trying to sell to children? And if you're going to call that thing American Girl, what are you saying about American ness and girlhood? We're going to try to answer all of that in part two of Civics 101 deep dive into American Girl dolls, which you can listen to right now.

 

Nick Capodice: [00:39:33.66] But before you go, we here at Civics 101 also teach American history, and we do it for free. And by the way, we do have merchandise right now, but it comes along with a different kind of business model. Right now, the first 250 people who make a gift to Civics 101 will receive our brand new and rather cheeky, if I do say so myself sticker. And you can check out the sticker and what it says at our website, civics101podcast.org. And we also have a hat. We have a Civics 101 baseball cap, America's favorite pastime. Anyone who gives at the $5 a month level or if you're sort of an all at once kind of person, $60. Basically, we're saying if you support our mission of education and even occasional entertainment, consider making that donation and getting some pretty nice Civics 101 swag at our website, civics101podcast.org. By the way, off script. Thank you. Really, Thank you. Thank you. It means the world to us. It's how we operate. All right.

 

Hannah McCarthy: [00:40:37.18] That does it for this episode of Civics 101. It was produced by me, Hannah McCarthy with help from Justine Paradise and Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Brandon Moeller. Roger Particle House, JF Gloss, Ryan James Carr, Peerless Carraby and Alleviate Ott. John Runefelt. Daniel Fridell Arc du Soleil, Marc Torch Meter era and Chris Zabriskie. You can get more info about this episode Transcripts, Lesson plans in every episode we have ever made at our website. Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 American Girl Part 2

Hannah McCarthy: [00:00:08] You are listening to Civics 101. I'm Hannah McCarthy. I am here with my co-host, Nick Capodice and my dear, dear friend, Justine Paradis. Hello, Nick. Hello, Justine. Hello.

Justine Paradis: [00:00:18] Hi. Thanks for having me. Hello.

Nick Capodice: [00:00:20] Hello,

Hannah McCarthy: [00:00:21] Justine. For those of you who don't know is also a producer and so many other things in a podcast called Outside/In and we thank her very much for being here. [00:00:30] Both of you have started a journey with me and we are going to complete that journey in this part two of our, I suppose, rather unusual two part series here on Civics 101. Because we're talking about dolls.

Nick Capodice: [00:00:46] Yeah, I mean, I think I get it at this point, Anna, But yeah, you sure are.

Hannah McCarthy: [00:00:50] Specifically American Girl dolls, and you can get the full download of American Girls early history and I warmly recommend you do, because without it, this will not make a [00:01:00] lot of sense in part one of this two parter. But here in part two, we're going to ask some questions about what it actually means to craft the American girl narrative. What is an American girl and how does a company that makes toys also craft that narrative responsibly?

Emily Zaslow: [00:01:33] I have [00:01:30] had limited conversations with people inside the brand and have done a lot of research on the brand. So I can't say if everybody is aware of that social responsibility, but I can say that even from the very beginning, I think there's some really interesting historic conversations about the brands responsibility and that tension around profit.

Hannah McCarthy: [00:01:54] This is Emilie Zaslow, author of Playing with America's Doll A Cultural Analysis of [00:02:00] the American Girl Collection.

Emily Zaslow: [00:02:02] I was really interested then in the historical dolls and the stories that the brand was telling about American Girl. Because if you have a brand that claims to represent American Girl and to be American girl, right? That kind of leads one to ask two really important questions. How does the brand define American and how does the brand define girl? So I was interested in both of those things.

Hannah McCarthy: [00:02:27] So Emilie has researched The Pleasant Company and American [00:02:30] Girl heavily, and she encountered this one story in particular about this tension around profit. Right. And it comes back to Addy Walker once again.

Emily Zaslow: [00:02:41] They were coming up with the story for Addy, who's the girl who was enslaved, and she and her mother escaped. And there were a lot of conversations, you know, that I've been that I've learned about a lot of conversations [00:03:00] revolving how to tell this story and how to make sure that the doll was purchased. Right. And one of, you know, one of the things that Pleasant Rowland is known to have said is that the doll needs to be cute, right? Girls need to want to play with this doll, to hold this doll to love this doll. And if she's not cute, right, if she's looks as if she has just escaped [00:03:30] from slavery and she looks emaciated and she looks brutalized, little girls and their mothers are not going to want to buy her. Right. Which is there's a tension there. Right. You have to get her. And and not only are not going to want to buy her, but are not going to want to necessarily read the stories that this, you know, doll that's not attractive in theory because she's [00:04:00] ill and she's, you know, been well, she's not ill, but, you know, she's been brutalized, would look like.

Nick Capodice: [00:04:08] Addy, the doll is beautiful and smiling and shows no sign of nutritional deficiency or anything else that would result from an enslaved life.

Emily Zaslow: [00:04:16] You know, there were definitely people, you know, who left the company at that time or who two of the illustrators who were illustrating Addy resigned, they said, but not depict [00:04:30] her as, you know, the way that the pleasant Rowland wanted her depicted.

Justine Paradis: [00:04:35] Does Emilie have any idea as to why the Pleasant Company made the decision to make Addy their first Black doll, a character who's born into enslavement?

Emily Zaslow: [00:04:43] The lore is that pleasant Rowland wanted to create had always envisioned that she had to create and must create an African-American doll. If she was telling the story of the American girlhood experience and [00:05:00] she conferred with an advisory board, she had a she had an advisory board as well as her historians that were on staff. And the decision was made that in order to tell any story of African-American girlhood, this story of slavery must be told. First it had to be incorporated and not telling It would be sanitizing history. But then, of course, there were definitely [00:05:30] historians, parents, scholars who were very upset that that was the story that white is the first story have to be a story of enslavement.

Hannah McCarthy: [00:05:38] Pleasant determined that if her company was going to introduce a Black historical doll, that doll had to represent the most horrifying, most subjugating of historical treatment of Black people in the United States, or else they would be sanitizing history. That was her idea, right? Even though right before Addy came out in Felicity's book, enslaved men are called servants. [00:06:00]

Justine Paradis: [00:06:00] And then in the Addy books themselves, Addy's story is absolutely not sanitized.

Hannah McCarthy: [00:06:05] Right.

Emily Zaslow: [00:06:06] And then many parents are concerned about when they introduce Addy story to their children, because it is it does depict a horrible condition for Addy. It does depict the brutality of enslavement. And so there was a very mixed response to it when it came out in 1993. Yeah.

Nick Capodice: [00:06:28] Can I ask something real quick? [00:06:30]

Justine Paradis: [00:06:30] That's pretty much why you're here, Nick. Please.

Nick Capodice: [00:06:34] Okay. Emilie's describing a marketing decision to make Addy the doll appealing and cute and not really reflective of a brutal life. And then it sounds like she's describing another kind of decision. Like, I don't know if you'd call it a moral one or an educational one or whatever, but it's the decision to choose a brutal period of history and tell the truth about how a young Black girl is treated during [00:07:00] that period. Now, you both had some dolls. You both had some dolls and you both had the books. So were they like one in the same to you, like Hannah? Is Kirsten here when you play with her? Landlocked and speaking stilted English.

Hannah McCarthy: [00:07:15] So for me. No, no, not really. Actually. Like,

Nick Capodice: [00:07:22] She doesn't even have like a Swedish accent?

Justine Paradis: [00:07:24] Yeah. No, not for me either. They're totally separate.

Hannah McCarthy: [00:07:26] They're totally.

Justine Paradis: [00:07:27] The doll and the story.

Hannah McCarthy: [00:07:27] Separate like Kirsten was my. I [00:07:30] don't even. I didn't even necessarily, like, call her Kirsten. I might have given her another name in play. She would have played various people, you know, And we, like, lived in the woods together.

Nick Capodice: [00:07:40] But when you read the books, that was the story of her. It's the story of the Swedish immigrant. So the books and the doll were like.

Hannah McCarthy: [00:07:46] Kind of separate.

Justine Paradis: [00:07:46] That's that's funny psychologically. Wow. I want that to be a whole other. I want to explore that. Really. Yeah. So, no, they were the books and they were the dolls, and they were kind of separate.

Emily Zaslow: [00:07:58] There's a real divide between [00:08:00] what the stories teach and what the dolls teach, right? And they're all part of the brand. They definitely can be separated from one another and often are because children take out the books from the library, especially when the dolls being very expensive and inaccessible because the dolls cost $115. Not every child can afford to, you know or not, every parent can afford to buy a child. A child, the doll. So many children read the American Girl books who don't [00:08:30] have dolls. And likewise, there are many girls who play with American girl dolls who could care less about the stories that are attached to them.

Nick Capodice: [00:08:37] Okay, hold on. Again here, $115 for a doll in the 1980s.

Justine Paradis: [00:08:44] I know. But just to be fair, like, look at the dolls. Yeah.

Hannah McCarthy: [00:08:49] Okay. A few things here. The dolls in the 80s, they started at just under $70. But like a doll in the 80s for just under $70. By the time Justine and I were receiving them, they were [00:09:00] probably closer to about $100.

Justine Paradis: [00:09:01] They were expensive. Yeah. Yeah.

Hannah McCarthy: [00:09:03] And then there were the accessories. Oh, the accessories. Bedroom sets with real wooden, like Felicity had a four poster bed and a real metal bed warmer. And there were school desks.

Justine Paradis: [00:09:17] Steamer trunks, doll prams for your doll's doll. Washbasins.

Hannah McCarthy: [00:09:21] Yeah, I remember Molly's birthday party set was like, I would salivate over how just amazing it was.

Justine Paradis: [00:09:29] Yearning.

Justine Paradis: [00:09:29] The yearning Samantha's [00:09:30] wicker table and her chairs and her ice cream and petite fours.

Hannah McCarthy: [00:09:32] Oh, my God. Felicity had a horse.

Justine Paradis: [00:09:34] Oh, yeah.

Hannah McCarthy: [00:09:35] I wanted that horse so bad.

Justine Paradis: [00:09:37] And eventually they introduced modern accessories.

Hannah McCarthy: [00:09:40] Yeah, there was an apres ski set. I didn't know what apres meant, but the ski set came with a cast and crutches and leggings and a cute yellow parka. And then you could also get a real doll sized inflatable snow tube.

Nick Capodice: [00:09:55] My God.

Justine Paradis: [00:09:56] So basically, if you were investing in American Girl dolls and their [00:10:00] branded accessories, it could cost you literally thousands of dollars.

Hannah McCarthy: [00:10:04] Most girls I knew growing up made do with like off brand American girl size stuff or they made the doll clothes themselves. But then the girls who actually had like all of the good stuff, if a girl had Felicity's entire set like, the cultural capital.

Justine Paradis: [00:10:22] Yeah. You want to go to their house.

Hannah McCarthy: [00:10:24] You want to go to their house, they have everything.

Nick Capodice: [00:10:25] So this seems to me to have absolutely nothing [00:10:30] whatsoever to do with history. Like, so I don't mean to sound so mad, but even if all these objects are in the books, you're really just talking about pretty stuff for pretty dolls.

Hannah McCarthy: [00:10:44] Admittedly super high quality, like wooden stuff, but yeah, pretty stuff for pretty dolls. These were not objects for everybody.

Nick Capodice: [00:10:53] So it's an educational toy by telling stories from American history, but also if you want to play [00:11:00] with the toy part of it, that's going to cost you. .

Justine Paradis: [00:11:03] I'm just reflecting that. I had I got all the books from the library, but I got the dolls, you know, they bought the dolls. It's interesting. We do have to say, though, Mattel bought the Pleasant Company in 1998 for $800 million. And now American Girl looks so different. And that's a whole other thing, like there is a giant, nearly $600 doll house. There's Harry Potter branded stuff for the dolls. There's a Disney princess [00:11:30] collection. It is a far cry from the company of the past in many ways. But the American Girl brand has always been just that, a brand and a brand that was and is very costly.

Hannah McCarthy: [00:11:45] Absolutely true. And a big part of that calculation of cost is the work that actually goes into each and every one of these historical dolls. So I spoke to someone who knows what's what when it comes to developing an American [00:12:00] girl and her story. We've got that after the break.

Nick Capodice: [00:12:05] But before the break, Civics 101 is a listener supported show. And a couple of times a year, Hanna and I come on and ask you to support the show with a donation. And sometimes we have something to give in return. And right now we have possibly the single best gift we've ever had on our show, the Civics 101 Baseball hat. If you give as a sustainer at the $5 a month level, you too can have [00:12:30] this beautiful Black Civics 101 cap at your disposal regardless of how much you give to our show, please know that it means the absolute world to all of us here. All right. Thanks.

Hannah McCarthy: [00:12:57] We're back.

Hannah McCarthy: [00:12:58] We're talking American girl dolls [00:13:00] here on Civics 101. And what actually goes into these things that somehow feel more like the sum of their parts to the likes of people like me and Justine Paradis. And there is one thing, Justine, if I may. I feel like this is what you and I were wrestling with, that this company does retain. It's something that has been there since the very beginning. It's the reason why we're bothering to talk about toys on an episode of Civics 101, and that is the educational part, the historical part of this company. When American [00:13:30] Girl makes a doll set in an era of American history, the truth is and has always been, they do it with some serious academic, historical, intellectual rigor. So we've been talking a lot about Addy and Justine and I actually spoke to someone who helped Addy come to life. This is Spencer Crew.

Spencer Crew: [00:13:51] Hi my name is Spencer Crew. I am a I work at George Mason University. I'm the Clarence J. Robinson professor of history there.

Hannah McCarthy: [00:13:59] He teaches [00:14:00] family history, and the study thereof, abolition and the Underground Railroad. And he teaches museums. He also worked at the Smithsonian American History Museum for 20 years. And he was a member of the advisory board who contributed to the creation of Addy back in the early 90s.

Spencer Crew: [00:14:17] What I found most interesting is we learned is that the Addy doll wasn't just bought by African-American girls. There were a wide variety of girls who were captivated by her and bought her as well, which is good. And I think [00:14:30] it was a reinforcement of the idea that these vowels can be used by a wide variety of people and probably was what encouraged pleasant others to to the other dolls and probably other ethnicities as well, other ethnicities.

Justine Paradis: [00:14:46] Josefina Montoya, she came out in 1997. She's a Mexican girl, although she came from Spain, her family living near Santa Fe. Shortly after Mexico gained independence from Spain, Kaia, a Nez Perce girl living in what would become the state of Oregon. [00:15:00] But before permanent settlement.

Hannah McCarthy: [00:15:02] But, you know, we have to also say there were a lot of white dolls still, you know, like mostly white dolls, blond, white dolls. Actually, I don't know if they're the majority, but there are a lot of blond white dolls. But every doll does have an advisory board, every character. And Spencer was approached when the company was thinking about Addy.

Spencer Crew: [00:15:23] We were approached by the then owner of the American Doll Pleasant Rowland, who was a wonderful woman and a very persuasive woman. [00:15:30] And I think her passion and her belief in doing things in an accurate, appropriate way also drew me into it because it was clear she really wanted to make sure this was done right.

Nick Capodice: [00:15:41] So it sounds like Spencer was on board with the way the company was approaching the development of Addy.

Spencer Crew: [00:15:46] Yes, I think that we wouldn't have stayed had we not believed that she was committed, but also was going to listen to what we had to say. And that came across very clearly. I mean, what she really brought very strongly was her sense of how to create a product [00:16:00] that was appropriate, authentic, but also would be salable that people would want to buy because there's no point creating something that no one buys. And she had a nice combination of those pieces of knowledge that I think made all of us to a comfortable and excited about what we were doing.

Justine Paradis: [00:16:17] This is a point that I feel like everyone we spoke to echoed in one way or another. There's this strange dichotomy that that the Addy doll doesn't look like she's been through something horrible. But then there's this aspect that Spencer's talking about is that if you want people to engage with [00:16:30] what's ultimately a product, even if it's a historical educational product, you want people to want it.

Hannah McCarthy: [00:16:36] Yeah, which is something actually that Spencer is super familiar with after a long career in museums. I thought that was so interesting that, you know, he is teaching history through storytelling and he understands that when you're doing that through a museum. Nick, This is something you're familiar with. There is a degree to which you have to draw people in, right? Like you want things to like, latch on to them. And Spencer talked a lot about striking the balance between [00:17:00] historical truth and the story and product that keeps people engaged.

Spencer Crew: [00:17:05] We had a chance to offer commentary on the book that was part of the work. It wasn't just a doll, it was also the storyline. That was the balance to make sure you didn't sugarcoat their experiences. But you also presented a way that was accessible and that people would engage with it. It's the sort of, say, a similar kind of issue you have in museums when you're doing these kinds of stories that [00:17:30] you need to find a balance so that you can present the reality of it, but in a way that people will engage with it. Because if they don't read it, if they don't engage with it, you've not accomplished anything. So that's what we were looking for. Is that balancing point where you have the real story, but also a way that people are drawn to it and then empathize with it. We had a long conversation about her hair and what her hair would look like and how it would feel. And that was really important that it not be just a doll that has, [00:18:00] you know, the regular straight hair. But this is the girl who has curly hair. So we really wanted to make sure that that was right. And I think the other part of it was, as you said earlier, Hannah, that we wanted to make sure that we conveyed a difficulties that her family faced as enslaved people. But the other part of it was not to show them just as victims, to show them as individuals who were worth empathy, but also who desired to be free, who didn't enjoy being enslaved. And the fact we had her is escaping and the family escaping [00:18:30] sort of helped to underline that you want them to have a sense of this, the history and the reality of it.

Justine Paradis: [00:18:35] I really got the sense from Spencer that this balance was about highlighting the fact that, yeah, Addy is born into enslavement and that's essential to her story. That's going to shape her for her whole life. But also she's independent, she's smart. She was an active leader in the life she and her mother created in Philadelphia. She's just a, you know, a little girl. Like she has friends. She has, you know, little competitions and jealousies with people that have nothing [00:19:00] to do with her race at all. You know, it's just being a kid. I think there's also this theme that happens throughout her story, and that is one of self-determination. I think about this one moment later in her series where, you know, they're talking about like all the girls have a birthday book. And so when Addy's birthday book, it's when is your birthday? Enslaved people often did not know. We learned in these books because this is another form of dehumanization. But Addy's encouraged, I think, by an older woman in the book to [00:19:30] pick her own birthday, like Pick your own, and she picks April 9th, which is the end of the Civil War. So self-determination.

Hannah McCarthy: [00:19:37] Yeah. You know, I, of course, reached out to the American girl reps at Mattel for this episode and they were not able to give an interview, but they did provide a statement and I didn't feel like that statement would have made a lot of sense at the top of the episode before we talked a lot about this, but I feel like it might now because it does get at this. They said, I'm not going to read the whole thing, [00:20:00] but I'm going to I'm going to share with you some chunks of it because it is sort of reflective of this. They say "American Girl has always focused on helping girls grow up with the courage, confidence and strength of character. As a brand rooted in story for nearly four decades, each of our heroines has helped to create a sense of connection and community among our fans." Interesting that they use the term heroines. You know, you don't often, I think necessarily hear that.

Justine Paradis: [00:20:24] And fans.

Hannah McCarthy: [00:20:25] Yeah and fans. Yeah, I know. And then they say, you know, American Girl has shown unwavering [00:20:30] commitment to thoughtfully researching and creating historically accurate and culturally authentic stories and products. And, you know, they say "from nearly 20 different historical characters for more than 15 eras representing a range of cultures, races and ethnicities." And then the last part, they say, is, you know, "whether we're developing a modern day or historical character, our goal is to provide engaging, culturally relevant stories and authentically detailed dolls and accessories that spark imaginations and help girls become the strong, compassionate [00:21:00] and resilient women of tomorrow." I feel like no matter what we are talking about a moneymaking brand within a huge toy corporation. Just to be clear, in case it wasn't obvious, we know we're talking about a premium commodity, the price point of which makes it prohibitive to many, many kids out there. And the company does not say our goal is to make a product that anybody and everybody can have. So let me bring in Molly [00:21:30] Rosner again for just a moment here. This is Molly Rosner. You met her in our first episode.

Molly Rosner: [00:21:35] The American Girl company has managed to walk this incredibly fine line between consumer brand and nonprofit educational entity. And in that way, it kind of evades scrutiny on both ends. American Girl literally creates curricula for schools. But if you look at that [00:22:00] curricula, sure, there's there's lessons about historical periods, about food rationing or about labor practices in the past. You can't argue with that. But if you really read the lessons they reference, the books, they reference the merchandise, and you have a better understanding and access to that history. If you're familiar with the the dolls themselves and the brand. So while under the guise of inclusivity, they're really still bringing in new consumers or [00:22:30] making people who cannot be the consumer feel less connected to that history. There are places that are educational and profit. It doesn't mean they're not necessarily mutually exclusive, but this is like a very special case of, well, I would say in the past it was very much I'm not trying to get every consumer, I'm not trying to have every girl in the United States have [00:23:00] one of these dolls. But I want every girl in the United States to want one of these dolls. And parents might feel justified to pay for that price tag because of that educational idea.

Nick Capodice: [00:23:12] Honestly, see, I hear that and I feel a little queasy. Commodifying education or leveraging the education part of something to make the commodity itself shine that just feels not good or not as good as I want an educational thing to feel, I guess.

Justine Paradis: [00:23:29] Coming [00:23:30] from a public education dream.

Nick Capodice: [00:23:32] Yeah.

Hannah McCarthy: [00:23:34] Well, you know, like, Welcome to America, though, right? This is a place where education is ostensibly for all we've got the whole public school system, but also education is very expensive.

Nick Capodice: [00:23:45] Yeah.

Hannah McCarthy: [00:23:45] And then Nick.

Nick Capodice: [00:23:46] Yeah.

Hannah McCarthy: [00:23:46] We regularly tell people what we do here at Civics 101 is free.

Nick Capodice: [00:23:52] Isn't that bonkers?

Hannah McCarthy: [00:23:53] You heard it right, folks. Free. And Molly talked a little bit more about this, that, [00:24:00] you know something making money does not simultaneously make it something we must write off.

Justine Paradis: [00:24:06] Like, does education need to look a specific way? Like just because it it's getting sold, does it?

Hannah McCarthy: [00:24:13] Yeah, it's a good question. Yeah.

Molly Rosner: [00:24:17] Yeah. I just think that it's it's not so cut and dry. So black and white. That American girl or consumerism when it comes to history is all bad or all good. There is lessons to take from it. And then [00:24:30] there's a kind of lesson to take from how you interact with these stories. So so it can become really dangerous when we think about censoring or banning things for children, because we assume as adults that we know better and we assume there's some insidious idea behind something that may just be foreign to us. So I think we keep our eyes open and be critical consumers, but it doesn't mean that we write off something altogether [00:25:00] as valueless because it makes a profit. And at the same time, we don't consume blindly because we're nostalgically attached to the idea of something. So that's really that's kind of where I've landed in terms of reconciling the joys and the beauty and the romance of imaginary play for children when it comes into the stark reality of history and how complicated those lessons can be. So tackling that is worthwhile and if [00:25:30] anything, I wish more companies or American Girl would try even harder to to have maybe multiple perspectives on one historical era. I think that would be a really cool step or direction to go in.

Justine Paradis: [00:25:45] In terms of actually tackling that history. Did you know that the Addy character the doll was actually the first one to have an advisory committee like of outside historians and consultants? So like.

Hannah McCarthy: [00:25:56] Kirsten Molly Samantha?

Justine Paradis: [00:25:59] Apparently [00:26:00] not, no.

Hannah McCarthy: [00:26:02] Felicity. No advisory committee?

Justine Paradis: [00:26:04] That is apparently not. I mean, apparently this is according to the American girl wiki. So interesting. We'd love to have another source, but like the company realized or knew that, okay, if we're going to make this doll, we have to do it really thoughtfully. So with historians who actually know what they're doing and talking about.

Hannah McCarthy: [00:26:23] And the doll development question is really interesting because, you know, for all of her questions about how the brand is doing [00:26:30] their work and what that actually means, Marcia Chatelain, you met her in part one of this series, was also on an advisory committee for an American Girl character. Really?

Marcia Chatelain: [00:26:41] Yeah, American Girl. You know, I've been a little critical of some of the narrative stuff they've done, but I kind of like it as an introduction into history. I think that the culture wars about, you know, history and all of these right wing attempts to try to undermine the study of actual fact [00:27:00] has made me realize the importance of historians to actually try to say like, how are we going to meet the public halfway to understand what history is so that they can really resist these forces that politicize historical facts.

Justine Paradis: [00:27:15] Yeah. Marcia worked on Claudie Wells, who is a girl growing up in New York City during the Harlem Renaissance.

Marcia Chatelain: [00:27:20] So I was approached to be part of the group that commented on Claudie, and it was everyone I liked in the field, you know, incredible people like Spencer Crew [00:27:30] and Evelyn Brooks Higginbotham. I mean, just like outstanding historian Shannon King, Keisha Blain, among others. And so I yeah, I said sure.

Nick Capodice: [00:27:41] So Spencer's worked on two dolls.

Hannah McCarthy: [00:27:44] Yeah. And the books. By the way, Claudie's books were written by Brit Bennett. I know you know who Brit Bennett is. Just Nick. Do you know who Brit Bennett is?

Nick Capodice: [00:27:52] I don't.

Hannah McCarthy: [00:27:53] Have you seen the book The Vanishing Half on, like, the bestseller table of every bookstore in America?

Nick Capodice: [00:27:57] Yes, I have.

Hannah McCarthy: [00:27:58] That's Brit Bennett. Oh, wow. Wildly [00:28:00] popular author who happened to tweet that she wanted to write an American Girl doll book. And.

Justine Paradis: [00:28:05] I should do that.

Hannah McCarthy: [00:28:06] Yeah, right. We should all do that. An American. Well, Mattel reached out to her and they said like, yes, yes, yes, absolutely.

Justine Paradis: [00:28:12] Yeah. They probably wouldn't respond in the same way to me.

Marcia Chatelain: [00:28:14] Yeah, I really love that Brit Bennett had an American Girl doll. She's this incredible fiction writer and this is kind of where she wanted to do her craft. I mean, I think that there's something so important about people who are at the top of their game [00:28:30] engaging with children, engaging with the general public of showing kind of the ways that it's not always about doing things that are considered prestigious. It's about doing things that are accessible. And so I loved I loved that, and I loved that they were going to do this Harlem Renaissance story and the creative work behind creating Claudie's world was just really beautiful. I mean, it was so beautifully designed. And I think the depth of her story [00:29:00] with her dad being a World War One veteran, her mother, you know, working for a Black newspaper as an investigative journalism journalist, the fact that they are living in this multiethnic, multicultural, Black world of Harlem, there is something about the elements of the story that I really trusted. And I loved being able to say like, this is a great story. This wouldn't have happened back then. These are some ways you can tweak it. So we are always looking for the historical anachronisms. [00:29:30]

Hannah McCarthy: [00:29:31] What I was honestly pleasantly surprised to learn and I say pleasantly surprised because obviously this brand is a part of my childhood and like means something to me and I'm still thinking about it, is that the development of these characters and these dolls, it actually takes years and lots and lots of conversation and viewpoints and expertise and do this, don't do that. That wouldn't be historically accurate. Here's what the experience would actually be like, etcetera. Here's Spencer again.

Spencer Crew: [00:29:59] I think we [00:30:00] did a lot of learning from each other in terms of the specifics that one might know. One of the historians was a deep, deep historian of knowledge of Harlem, so he could really make sure that happened. One was a very good historian of African-American girls and of religion. So we all have these areas of expertise that we could contribute. And at least I knew several of them. So they were friends and colleagues. So it was good to be in conversation with them. And I [00:30:30] think what we try to do is have a healthy respect for each other's perspective and point of view and to realize that all that's important for the overall story and presentation of of Claudie, but also of the family and the background of his storyline.

Justine Paradis: [00:30:48] The other element of the American Girl doll books that I feel like we need to get into, like something that I think is really powerful for girls, for me and for you too. Hannah, I think, is that all of these girls are really proactive in their worlds. They're [00:31:00] this element of like, I'm a I'm a girl who, like, doesn't quite fit the mold of what you expect or I'm breaking the rules or in some way, they're living during these often tense, really touchstone eras of American history. And they're not just witnesses, they're participants, and they're often really active and running around and asking questions. And for what it's worth doing their part.

Hannah McCarthy: [00:31:20] Yeah, I think for all of the absolutely important questions I think you should ask about this brand and the acknowledgment that this is not a perfect brand. It's a brand. It's making money. [00:31:30] Good luck finding perfection there.

Justine Paradis: [00:31:32] But also, like any historian who's doing interpretation of history is also a person who is making an interpretation. So whether or not it's a brand, it's also making a statement about like, this is how we see history.

Hannah McCarthy: [00:31:43] Yeah, no, exactly. But I can I can agree with you, Justine, and honestly say that the books and the history, they stuck in my mind in part because these girls were often getting into like a little bit of trouble, like climbing a tree when they shouldn't have been, or stealing a horse when they shouldn't have been or, you know, like leaving the house. Like they weren't just [00:32:00] kids, I guess. Which, you know, when you are a kid, you don't think to yourself, I'm just a kid. Like life is very serious. Yeah, there are a lot of things to think about. The weight of the world is on your shoulders as far as you're concerned.

Justine Paradis: [00:32:12] But. But also, it's not like I feel like the Magic Tree House Books did this. This other series where it goes back and it's like the reason that this series of events in history happened this way is because of what this girl did or what this this kid did. And it wasn't that. It was just like, this is the emotional [00:32:30] journey that you would be going through in that time. You know what I mean? It wasn't sort of magical in that sense. It was very real.

Hannah McCarthy: [00:32:36] It was very yeah. I mean, it was just sort of like practical and real.

Spencer Crew: [00:32:39] Well, I guess with the Claudie doll, what struck me was important to think about what this sense of family and how family is more than just your mother and father. Family can be a wider circle of individuals and that that means that people can work, can [00:33:00] and should work together collaboratively, try to help each other through challenges and through other kind of issues. I think as the civic lesson, that's a really important one, that we all have some of these responsibilities towards others to help ensure that they are safe and that they can navigate and get through moments of trouble and not to step away and say it's not my concern.

Justine Paradis: [00:33:24] In terms of what is a concern for a kid, especially a girl kid for whom these dolls were and [00:33:30] are definitely designed. I think there's also an element of pushing maybe a different kind of girl, dumb, probably a pretty safe feminism, but a feminism nevertheless.

Hannah McCarthy: [00:33:40] Yeah. I mean, American Girl is is certainly crafting. Yes. A safe version of feminism. A lot of the people we spoke to, Justine, would have called it safe. But yeah, Emilie Zaslow has thought about this, the feminism part kind of a lot.

Emily Zaslow: [00:34:00] In [00:34:00] terms of what they teach girls about feminism and about femininity and about American girlhood. And there are two different things, right from the books. I think one of the things from the historical collections specifically, there's an element of social change that runs throughout all of the stories that girls do not have to be stuck in the. [00:34:30] Gender gendered roles that their mothers were in. So in many of the stories, we see girls kind of struggling with their mothers and mothers who have much more traditional normative ideas about what girlhood looks like. And then girls kind of challenging their mothers and society. You know, their mothers serve as a representation of society. Also, girls using their voices [00:35:00] for social change is very is a through line. And in many of these stories, in the more contemporary stories, you see girls using their voices sometimes for more localized like interpersonal change. But nonetheless, it's change that girls voices are very important and that they should, you know, challenge themselves to speak up when they see something that is wrong in society or wrong in their [00:35:30] local communities.

Hannah McCarthy: [00:35:32] Okay. One last question I want to get to here, because after all of these interviews and all of this research, I was still asking, is American girl good, though? Like, is it teaching good lessons? Is it okay that it is both expensive and sometimes inaccessible and staking its claim and its interpretation of history, and also that it's educational and maybe [00:36:00] even inspirational, depending on what kind of kid you are. Can you both have super pricey dolls and zillions of accessories and also be a meaningfully contributing educational company that gives kids accessible history lessons? Here's what Emilie had to say.

Emily Zaslow: [00:36:16] You know, when I started talking to people about my research, the first question people would ask me is like, So is American Girl a good brand or is it bad? Should I buy American Girl for my generally daughter or should I not? And [00:36:30] I kind of began my research with a rejection of that question. I think that, you know, looking at it as a binary is problematic because it's neither. I look at American Girl as both commodities that are sold in the capitalist consumer marketplace and therefore have an intention of profit and also at the same time as intentionally feminist and supporting social change. And so it happens on multiple [00:37:00] levels. One of the most significant is that many of the writers for the American Girl Historical series, which is really the focus of my research, is the historical piece are established writers who are, you know, under contract by the brand for a particular story, but they don't work directly for the brand.

Justine Paradis: [00:37:20] Okay, This is an interesting piece that was totally unknown to me before we started working on this. Hanna That the that the people they call on to inform the brand are not people of the American Girl company [00:37:30] or I guess even in the case of Mattel at this point, like they are independent academics and historians and authors. And you can still compare that whole project to other kids dolls and say, Yeah, American Girl was different. It is different even as the brand has changed.

Emily Zaslow: [00:37:45] I also think that there are very few brands that are doing what you know still to this day, especially mass market brands that are doing what American Girl does in terms of their focus on [00:38:00] history in the historical line. They are still making dolls that are historical, that they are still hiring. I mean, what other mass market brand would hire Brit Bennett to write a children's story? Like, they're still hiring. Really? I think fabulous writers to to create stories. And even the the writers who have been working for the brand for quite a while. I mean, one of the complaints about Barbie, right, [00:38:30] And aside from the Dreamhouse and the consumption aspect, the complaints about Barbie are, you know, that she's a little bit I mean, even though she's been able to be many different you know, she's been able to have many different careers, including being president, is that doesn't have there's no backstory, right? Which is okay, because girls can create their own backstory. But there's an emptiness, I think, to Barbie. And I don't think that that's true of The [00:39:00] American Girl historical line and the fact that they still hire historians to do the research. They still hire advisory boards to advise the historians on the research. They still think that with with the historical line, they're doing something that's relatively unique. And and dare I say, although I said I don't think good or bad, but I think it is a good product. The historical products and I'll add, you know, also when in [00:39:30] this. Issue of bifurcation and why I say it's, you know, that we should not totally dismiss American Girl is there's also, um, anecdotally there are many women who are interested in history who are history teachers, who are historians by, you know, and scholars who became interested in history through American Girl. And I think [00:40:00] that that's also a really like that's some research that's starting to be done is this kind of interest in in history through American girl and I don't think that's going to end. I think that that's continuing.

Nick Capodice: [00:40:13] Can I just ask, would either of you say that that's true of you? You're two of the most historically engaged people I've ever met. And would you say part of that is due to your love of the American girl dolls?

Justine Paradis: [00:40:28] Yeah I think so. Probably not [00:40:30] the again, the dolls and the stories are different. I engage with them completely differently. Got the books from the library. Got the dolls. You know, the dolls weren't really even Felicity. A little bit, but could be anybody but that American girl. Like I think Marcia at one point said they took me seriously. And it's not something that like, I would have consciously thought, but it was it was so good. And even all of the things around it, like [00:41:00] the American Girl magazine, which was for Modern girls, the one about the care and keeping of You, which teaches you about your body. It teaches which a lot of people have this story of their mom, just like leaving it on their bed. And, you know, it teaches you how to put in a tampon and stuff, which when you're young can feel really intimidating. Like really scary, really scary. Some people have different experiences. It was intimidating to me. But there are a couple of other books like this, like the Dear America series, The Diaries. [00:41:30] There are these fictional diaries of girls, you know, like crossing the Plains or whatever, But I would say, yeah, like it. What do you think, Hannah?

Hannah McCarthy: [00:41:39] Yeah, I mean, I think it's. I was probably a little bit destined to be interested in history.

Justine Paradis: [00:41:47] That's probably true, too, for me.

Hannah McCarthy: [00:41:48] Yeah, but it's really not lost on me that my favorite toys were somehow taking my interest in the world seriously. Like, like Marcia said, like you said, Justine, I was the kind of kid who not only [00:42:00] did not like pink and frills, but, like, was proud of that, right?

Justine Paradis: [00:42:05] Like, I'm not like other girls, which is its own problematic story.

Hannah McCarthy: [00:42:08] Its own problem, and like to reveal the depth of my snobbery, I would deem things frivolous. Right? Like I don't engage with that, which is also obviously nonsense because I had the Samantha doll that was my first doll. Like, there's frivolity there. That's complicated. But my point is that American girl meant to me, and this is obviously in retrospect, but I think this is true, [00:42:30] both amazing toys, incredible toys that felt like they were substantial and also learning. I was learning about times when life was hard for girls and they made it work. And then I was learning actual facts about American history. And I got to bring this back to Marcia Justine because having that conversation with her about that aspect just made me feel like, Oh, yeah, you're you're on our level.

Justine Paradis: [00:42:56] She's on the level.

Hannah McCarthy: [00:42:56] Yeah.

Marcia Chatelain: [00:42:57] I think the original American Girl dolls [00:43:00] were for like, super nerdy girls like me. I do think that there was a level of seriousness in the American girl world that was not necessarily appealing to every girl, but to the girls that it appealed to. You felt very seen.

Hannah McCarthy: [00:43:19] So, yeah, I don't know. I mean, feeling seen by an educational toy company. Uh, maybe that's something.

Justine Paradis: [00:43:29] You don't know what it [00:43:30] would have been like without it, you know?

Hannah McCarthy: [00:43:31] Yes. Yeah.

Justine Paradis: [00:43:33] And I, like, think about the Cabbage Patch or Barbie. Um, I never wanted to play Mom. Like, I was like, I guess it's hard to imagine not having had that. And I feel really sad thinking about what if. What if you didn't? I don't know. Probably as messed up as the world is like, [00:44:00] there's in some ways it's like the best time to have grown up in the history of the Western world to be a woman. Like, just to have multiple ways of being presented to you. We talked a lot about the tomboy element, but I think that they were different enough. Like it's not just the counterpart. They're like, Oh, she's the she's the dirty tomboy one. She's not like other girls. It's like they are they contain multitudes. All of these characters, [00:44:30] they were real people. It felt like.

Nick Capodice: [00:44:33] That's interesting to me is that I'm like, just hearing these stories from both of you. I'm really grateful these books were written, and I can't help but wonder.

Justine Paradis: [00:44:41] I couldn't help but wonder.

Nick Capodice: [00:44:42] Couldn't help but wonder. See I can't even get that quote right. Would would you two have had such engagement with the books had the dolls not existed? And would Greater America have just read these books and loved them if it weren't for this beautiful toy that came with [00:45:00] it? It feels like. It feels like the toys, almost like an invitation into the book.

Justine Paradis: [00:45:05] It's really a lot of world building that they did, which I think is really cool. You know, I mean, I feel like it's in the tradition of of people who have taken women seriously over the years, like Nora Ephron or like Jane Austen or, you know, like people over over the ages. And I recently heard something about like rom coms were one of the first places where women were actual characters and not just a foil [00:45:30] for other people. And it feels like this is like it's not a rom com, but like, this is in that tradition of like, let's let's write a real person here. Jane Austen did it too. There have to be indebted to all these people.

Hannah McCarthy: [00:45:45] I always think about kids set in American history stories and what I actually engaged in outside of American Girl. And I think there was often throughout a lot of my consumption of like kids in history, just my eyes like turning to stars [00:46:00] when I actually encountered girl characters because come on, right.

Nick Capodice: [00:46:03] This is why my sister had all these books that were called like Sarah or Elizabeth, and there was a woman on the cover, and I never knew what they were about. And I was like, Oh, how's Beatrice going?

Justine Paradis: [00:46:14] Shut up.

Nick Capodice: [00:46:16] Yeah, that's my childhood here.

Nick Capodice: [00:46:19] I used to play with Kewpie dolls.

Justine Paradis: [00:46:22] Kewpie like the mayonnaise.

Nick Capodice: [00:46:24] Mayonnaise. He was named after the doll. Yeah.

Justine Paradis: [00:46:26] What? Yeah.

Nick Capodice: [00:46:26] We both know that.

Hannah McCarthy: [00:46:29] All right. [00:46:30]

Justine Paradis: [00:46:31] But not me.

Hannah McCarthy: [00:46:33] There are probably thousands of things we could say about American Girl. What it is, what it does, what it meant, what it means, what it looks like now. And so this was an episode about this brand that is also a learning tool and how it is both complicated and worth taking seriously. But there is other stuff. There's fun stuff and there's American Girl today and there I've got more accessories in this backpack here, if you want [00:47:00] to hear about that, We got you covered. We are going to release a bonus episode. In addition to this episode. You can look for that on our feed. That [00:47:30] does it for this episode of Civics 101. It was produced by me, Hannah McCarthy with help from Justine Paradis and Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoi is our executive producer. Music in this episode by Brandon Moeller. Rodger Particle House, Jeff Gloss, Ryan, James Carr, Peerless Carraby and Olivier Ott, John Rosenfeld, Daniel Friedel, Arc du Soleil, Marc Torch Meter era [00:48:00] and Chris Zabriskie. You can get more info about this episode. Transcripts, Lesson plans in every episode we have ever made at our website. Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


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This podcast is a production of New Hampshire Public Radio.

Classified Documents

Our government has hundreds of millions of secrets.

The US government classifies millions of documents every year - secrets that can only be seen by certain people, and under certain conditions. Who decides what is secret, and what isn't? How well is the classification system working? And can a president declassify any secret, at any time, just by thinking it? 

We talk with Margaret Kwoka, law professor at Ohio State University, where she focuses on laws around government documents and access to government information. And if you want to learn more, check out our episode about security clearance.  


Transcript:

Hannah McCarthy: [00:00:00.60] Nick. Have you ever heard of something called an acoustic kitty?

 

Nick Capodice: [00:00:06.54] No. What is it?

 

Hannah McCarthy: [00:00:08.94] In 1967, the CIA spent millions of dollars trying to train domestic cats to spy on the Soviet Union. The outcome, quote, Our final examination of trained cats for redacted use in the redacted convinced us that the program would not lend itself in a practical sense to our highly specialized needs.

 

Nick Capodice: [00:00:34.83] So, in other words, cats make pretty bad spies. Yeah, it.

 

Hannah McCarthy: [00:00:38.28] Turns out cats aren't great at following directions or taking care of surveillance equipment. And by the way, this project was a secret until 2001.

 

Nick Capodice: [00:00:49.98] Because it was so embarrassing.

 

Hannah McCarthy: [00:00:51.54] No, I mean, you might think so, but it was actually because the project was classified.

 

News Clip: [00:00:57.18] In the top scientific and engineering facilities across the country, security regulations are keeping the most important of projects under the tightest of wraps.

 

Hannah McCarthy: [00:01:07.66] But whether we're talking about cats failing spy school or nuclear codes or the plans for D-Day, these covert programs share something in common with most things in our bureaucracy Paperwork. Except in this case, we are talking millions of pages of classified information that the government creates and manages every year.

 

News Clip: [00:01:31.69] America's national security state is a behemoth grown out of control. By one estimate, the government classifies three documents every second.

 

News Clip: [00:01:39.88] We also know there are known unknowns. That is to say, we know there are some things we do not know, but there are also unknown unknowns. The ones we don't know, we don't know.

 

Hannah McCarthy: [00:01:50.80] This is Civics 101. I'm Hannah McCarthy.

 

Nick Capodice: [00:01:52.15] I'm Nick Capodice.

 

Hannah McCarthy: [00:01:53.56] And today we're talking about our government's classified information system. We'll also talk about how former President Donald Trump handled classified documents when he left office and why the Justice Department showed up at his home with a search warrant.

 

News Clip: [00:02:07.09] Dozens of boxes stored in the open, some allegedly holding descriptions of four nuclear capabilities and US defenses.

 

Hannah McCarthy: [00:02:14.74] Seized over 100 classified documents and eventually charged him with violating the Espionage Act.

 

News Clip: [00:02:20.44] The indictment also accusing the ex-president of showing national defense secrets to visitors at his New Jersey golf club, including military attack plans. The indictment also detailing alleged efforts by Mr. Trump to mislead the government.

 

Hannah McCarthy: [00:02:34.87] But to start, let's roll back the clock. More than half a century to a 1960s training video for Department of Defense employees, which lays out why certain information should be classified.

 

Archival Audio: [00:02:47.56] Your work has a value to science that cannot be calculated, that has a value to your field and to the defense effort. Part of your responsibility to the project is the secrecy that enhances its value by denying its benefits to the enemy. And security measures are the means for ensuring it.

 

Margaret Kwoka: [00:03:08.65] The classification system is wholly within the executive branch. It's governed by an executive order issued by the President. It has created a classification system directing agencies how to handle national security secrets.

 

Hannah McCarthy: [00:03:20.83] This is Margaret Kwoka. She's a law professor at Ohio State University, where she focuses on laws around government documents and access to government information. The first executive order on classified information came from President Franklin Roosevelt during World War Two, and it mostly focused on how the military should handle secrets. It was expanded under President Harry Truman in the 1950s to cover secret keeping for all executive branch agencies.

 

Nick Capodice: [00:03:49.42] And real quickly, an executive order is basically a mandate from the president. Do this thing in this way. They do not ask for congressional approval.

 

Hannah McCarthy: [00:03:58.78] Yeah. And they stay in effect in perpetuity unless the president or their successor modifies them or Congress or the courts step in the executive order on classified documents, which is basically a rulebook on what can be classified, who can do it and how classified documents should be handled. Hasn't changed a lot since Truman. The latest update was by President Obama in 2009, which we'll talk about in a bit.

 

Nick Capodice: [00:04:24.76] So why wouldn't this be a law in Congress instead? Why give the president so much power over government secrets?

 

Hannah McCarthy: [00:04:32.08] This comes down to separation of powers and plain old logistics.

 

Margaret Kwoka: [00:04:37.84] Presidents have used their own authority to manage agencies and to protect national security. The president, under the Constitution, has some special prerogatives regarding national security and national defense.

 

Hannah McCarthy: [00:04:51.67] The president is the commander in chief of the armed Forces, for one, and is in charge of foreign relations. And both things are intrinsic to national security. But here's something to keep in mind. Classified information creates a barrier between government operations and our enemies, but also between our government and us. The public. And the executive order itself acknowledges this when it says, quote, Our nation's progress depends on the free flow of information both within the government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence.

 

Nick Capodice: [00:05:33.40] You know, we talk about this all the time on our show. One of the tenets of our democracy is that we have the right to know what our government is doing. So a system for classifying information is, in effect, a limit on that transparency.

 

Hannah McCarthy: [00:05:46.84] It is.

 

Nick Capodice: [00:05:47.56] So given that, Hannah, I'm assuming that the president isn't just giving all these government agencies like the State Department or the military the right to make all of their documents a secret, right?

 

Hannah McCarthy: [00:05:58.18] Right.

 

Hannah McCarthy: [00:05:58.84] There are limitations. The big one, is that information can only be classified if it has to do with national security.

 

Margaret Kwoka: [00:06:06.85] So some of them are things that you might imagine if you were coming up with your own list. Some things are really narrow, such as military plans, weapons systems or operations. There's a category for intelligence activities, including covert action, intelligence sources or methods or cryptology. So these are sort of specified categories. Some other items on the list, however, seem a little bit broader and may be more subject to sweeping in sort of larger swaths of information. So, for example, there's one category of information that is scientific, technological or economic matters relating to the national security. Right. You could imagine a lot of things potentially falling in to that category.

 

Nick Capodice: [00:06:52.23] Okay, So you can't just classify something because it might make you or your colleagues look bad, Correct?

 

Hannah McCarthy: [00:06:58.89] The executive order explicitly lays out limitations. For example, you can't classify things like administrative errors or to, quote, prevent embarrassment to a person, organization or agency. And the bigger the secret, the thicker the classification box around it, both literally and figuratively. Secrets are ranked in order of how badly damaging those secrets could be if they are, quote, mishandled.

 

Nick Capodice: [00:07:25.65] So something like sharing it with a foreign enemy, for example. Sure.

 

Hannah McCarthy: [00:07:29.73] Or sharing it with the public or even leaving it out on your kitchen table where someone could see it. There are three levels of classification. Top secret, secret and confidential. We'll start with Top Secret, which is the highest order of classification, the kind of information that got its own Val Kilmer movie named for it. I'm not the first.

 

Clip from Top Secret!: [00:07:50.55] Guy who fell in love with a girl he met in a restaurant who then turned out to be the daughter of a kidnaped scientist, only to lose her to her childhood lover, who she had last seen on a deserted island and who turned out 15 years later to be the leader of the French Underground. I know it. It all sounds like some bad movie.

 

Hannah McCarthy: [00:08:06.22] A document gets classified as top secret if mishandling it could cause, quote, exceptionally grave damage to national security.

 

Nick Capodice: [00:08:14.03] Exceptionally grave. That sounds like some pretty heavy stuff.

 

Hannah McCarthy: [00:08:17.77] It is. This is the big stuff. Nuclear codes, intercepted communications, military plans, enemy capabilities, etcetera. And even within top secret information, something can be designated special access, right?

 

Nick Capodice: [00:08:34.15] Like on a need to know basis.

 

Hannah McCarthy: [00:08:36.22] Yeah. But in short, top secret information is supposed to be stored in special locations, accessed in tightly controlled settings, and should have multiple layers of security around it at all times.

 

Nick Capodice: [00:08:50.11] All right, Hannah, what is the difference between top secret and just secret?

 

Hannah McCarthy: [00:08:55.03] Secret is the next step down. So compared to top secret information, it has fewer restrictions on who can see it and how it's handled. And the lowest category, confidential information could just cause, quote, damage if mishandled.

 

Nick Capodice: [00:09:11.98] Just plain old damage. Not exceptionally grave. Not serious.

 

Hannah McCarthy: [00:09:16.06] Right.

 

Nick Capodice: [00:09:16.57] So how are agencies making sure that these documents are being read and only being read by the people who have the proper clearance and permission?

 

Margaret Kwoka: [00:09:24.82] Documents have to be marked with their classification. They can't be shared with anyone who doesn't have clearance. Then there's rules about storage, transmission, transportation of classified information, etcetera. And then agencies implement those with detailed, more detailed directives to their own staff about how they implement those requirements.

 

Hannah McCarthy: [00:09:46.27] We have a whole episode about the different types of security clearance where we go into this in detail. So I would recommend going back and giving that a listen for more info. But on the website of the General Services Administration, you can find a catalog of containers that have been approved for different levels of classification, everything from basic manila folders to a multi lock safe. And of course there is a whole system for encryption of digital classified information. All right.

 

Nick Capodice: [00:10:12.97] So who are the people who decide if a document contains exceptionally grave damage or just damage damage or if it should even be classified in the first place? I mean, it seems like it could be a pretty subjective thing.

 

Margaret Kwoka: [00:10:24.94] There are two ways to classify information.

 

Hannah McCarthy: [00:10:28.85] If you're the president, the vice president or the head of an agency designated by the president, you automatically have what is officially called, quote, original classification authority. For example, the secretary of defense and.

 

Margaret Kwoka: [00:10:42.14] Those individuals are entitled or authorized to classify new secrets. So information that is new that they've decided should be classified.

 

Nick Capodice: [00:10:54.26] So even people with the highest security clearance might not have original classification authority. Right.

 

Hannah McCarthy: [00:11:00.65] For example, over a million people have top secret clearance. However, at one point in 2021, only around 1800 people had original classification authority.

 

Margaret Kwoka: [00:11:11.99] But then there's a lot of other people, essentially everyone who has some sort of clearance to see those secrets, who have the authority to do what we call derivative classification. So that's to say a secret that was already classified when incorporated into a new document or re summarized or transmitted in a new form or compiled in a new way because it was already classified. Those individuals need to continue to classify the underlying secret. And so the new document produced will be derivatively classified. So they're not making the decision that the secret has to be secret, but they're saying, well, now that I have a secret that's going to be in this new document, I need to classify the new document too.

 

Hannah McCarthy: [00:11:55.73] This is to make sure that any information that should be classified doesn't get inadvertently mishandled if it's being used for different reasons.

 

Nick Capodice: [00:12:04.34] All right. How many new classified documents are floating around out there?

 

Hannah McCarthy: [00:12:09.26] Somewhere in the neighborhood of 50 million documents are classified every year. And this includes everything from reports, photos, emails or maps every year.

 

Nick Capodice: [00:12:21.98] Is that really necessary? Are there really that many things that need to be kept secret?

 

Hannah McCarthy: [00:12:28.01] Many politicians and government experts say that we have an overclassification problem.

 

Margaret Kwoka: [00:12:33.75] I think one of the most agreed upon facts about classification is that there is a problem of massive overclassification. People in both administrations, people who have been inside, you know, defense and national security agencies, people who have worked at the oversight body for classification have testified before Congress and come out saying we have a huge problem with overclassification. And there's a lot of reasons, good reasons of how this happens and why. But that's sort of the lay of the land. When we talk about classification, there's just there's it's it's just a really big system and it sweeps in a huge number of individual decisions to classify documents.

 

Nick Capodice: [00:13:21.54] And it sounds like the experience can vary a lot based on which agency you work in or what type of information you're dealing with. Right?

 

Hannah McCarthy: [00:13:30.21] Yeah. And when it comes to the actual safekeeping process, on a day to day level, everyone does it a little differently. And that has created some inconsistencies.

 

Margaret Kwoka: [00:13:40.95] So inside a government office, they're working on a particular situation and, you know, they've decided that this kind of topic is now, you know, really going to pose that kind of danger. And as a result, that's the designation that we're going to use. And agencies do try to issue guidance about classification to their staff. But you're right, there's a huge amount of discretion.

 

Nick Capodice: [00:14:06.51] So it kind of depends on where you're working and the precedents set by people who came before you. Kind of like when you ask someone at work, why do we do it this way? And they say, because we've always done it this way. I mean, sometimes it makes sense, but it's not always because it's the best system.

 

Hannah McCarthy: [00:14:23.19] Right. And if you're wondering exactly how much guidance there is out there. A recent government report by the Information Security Oversight Office estimated that there were over 1800 different types of guidance across the federal government. That office, by the way, is a part of the National Archives and does exactly what it sounds like. It monitors and recommends policy for the classification system.

 

Margaret Kwoka: [00:14:47.94] They haven't come out with new numbers about classification in a while, actually, because they seem to have uncovered methodological problems with their reporting about how many classification decisions there were that suggest they were undercounting to a great degree, how many classification decisions there were.

 

Nick Capodice: [00:15:05.73] So it's hard to even count how many classification decisions there are.

 

Hannah McCarthy: [00:15:10.41] Yeah, it's kind of like if you were trying to rinse something in a strainer, but the holes are just a little too big.

 

Margaret Kwoka: [00:15:17.71] But even if we take the last year, they reported before they sort of discontinued reporting to reassess, there were something like, you know, just shy of 60,000 original classification decisions. That's 60,000 new secrets and then maybe shy of 50 million derivative classification decisions. So documents that incorporate or reproduce already classified secrets. So we're talking about a lot of classification decisions.

 

Nick Capodice: [00:15:48.25] 50 million!

 

Hannah McCarthy: [00:15:50.38] And remember, even though there is guidance for people to follow, this isn't some universal computer program. We're talking about real human beings making high stakes decisions.

 

Margaret Kwoka: [00:16:01.39] One of the ways that that plays out is there are a lot of institutional and personal incentives to classify if there's any doubt. Right. So like you're looking at something and you're saying, I'm on the fence, but I'm going to err on the side of classification. And, you know, there's a few reasons that that happens. One is that there are penalties like the Espionage Act, for releasing information or not protecting adequately information that can harm the national defense, whereas there's not really, practically speaking, a consequence for classifying when you shouldn't have. Right? So if you're not sure if something will produce a bad result, obviously you don't want to harm the interests of the government and so you try to err on the conservative side of classifying.

 

Hannah McCarthy: [00:16:56.45] We're going to talk more about all of this, including how documents get classified and the consequences for mishandling classified information right after the break.

 

Nick Capodice: [00:17:05.66] But before that break, just a reminder from both of us, it is no classified secret that Civics 101 is a listener supported show. If you support our mission and civics education or you're just a fan, consider making a donation in any amount. You can do that at our website, civics101podcast.org. We really, really appreciate it. We're back. You're listening to Civics 101. And today we're talking about classified information. Before the break, Hanna Margaret Kwoka said something interesting to me. There aren't really consequences for overclassifying material, but there might be consequences for under classifying it. So what would these consequences look like? What is the law there?

 

Hannah McCarthy: [00:17:54.99] Well, we've talked about it on this very podcast, and that is the Espionage Act of 1917. That act makes it a crime to mishandle information that could threaten national security. And it's not just spies. Some of the most famous cases are against people who shared classified information with the public. Take the Pentagon Papers, a study that revealed the scope of a secret military campaign during Vietnam that was leaked to newspapers by one of its authors, Daniel Ellsberg.

 

News Clip: [00:18:24.42] I can't regret having done what I knew at the time to be what I ought to do, my duty as a citizen. I have no no way that I can regret that.

 

Hannah McCarthy: [00:18:35.65] Or when Edward Snowden leaked NSA documents about the government's civilian surveillance program to journalists.

 

Archival Audio: [00:18:41.47] While I sitting my desk certainly had the authorities to to wiretap anyone from you or your accountant to a federal judge to even the president. If I had a personal email.

 

Nick Capodice: [00:18:52.30] You said the Espionage Act covers crimes related to national security information. Is that the same thing as classified information?

 

Hannah McCarthy: [00:19:00.55] This is Margaret again.

 

Margaret Kwoka: [00:19:01.96] Well, it's interesting because actually the Espionage Act does not talk about classified records. It it does talk about information that could harm the national defense. And so those don't necessarily mean exactly the same thing in operation. Mostly the Espionage Act has been applied to those records that are classified. Mostly that kind of information that would harm the national defense would have been classified. So there is, you know, a large overlap here as a practical matter. But the reality is that the Espionage Act does not say on its face classified information and therefore doesn't require any sort of proof that the records are, in fact, classified.

 

Nick Capodice: [00:19:44.47] So in practice, classified information falls under this umbrella of national security in the Espionage Act.

 

Hannah McCarthy: [00:19:52.12] Yeah, but it also means that the Espionage Act could apply to information that is not classified.

 

Margaret Kwoka: [00:19:57.52] Certainly, if they are classified, that's going to, you know, help make the case that these are national defense secrets that would, you know, potentially harm the interests of the United States if disclosed. But when people move positions, they are required to, you know, leave behind and leave access behind to all of the records that they would have used in their official position. So that authorization really is tied to the position, not an individual, over their lifetime. And frankly, that's true even for non classified information. But that might be protected for some other reason. You know, the government has access to all kinds of things that are also kept confidential for non-classified reasons. So trade secrets that they might get from companies or personally identifying information, right? The government holds a lot of information about you and about me and individuals who work in government and have access to that for official reasons. Don't get to take it with them when they leave.

 

Nick Capodice: [00:20:56.34] So now I want to know about declassification. Like, how do we eventually end up hearing about projects like the acoustic cats or the government taking reports of UFOs seriously or the investigation into President Kennedy's assassination, for instance?

 

Hannah McCarthy: [00:21:11.31] Well, in short, because classified information should not be classified forever. Meaning all classified information should have an expiration date on its secrecy.

 

Margaret Kwoka: [00:21:22.08] So the executive order says normally it should be ten years, but in certain cases it could be up to 25 years.

 

Hannah McCarthy: [00:21:28.89] And by the way, the date it should be declassified by should be labeled on the information. The moment it is classified, it doesn't have to be ten years. It could be a few days, it could be up to 75 years.

 

Nick Capodice: [00:21:43.62] So no matter what, we, the public, should eventually have access to that information.

 

Hannah McCarthy: [00:21:49.71] Yeah, but it's not like there's a timed lock that just pops open on the drawer where the classified information is stored. Once you reach that date, in order for information to be declassified, it has to be reviewed usually by the agency that classified it in the first place to make sure that there is nothing that should remain classified because it's still relevant to national security.

 

Margaret Kwoka: [00:22:13.51] Agencies can declassify on their own. So whatever agency had the original classification authority can make a declassification decision. It is true, though, that oftentimes multiple agencies, you know, have some sort of interest in that information. And so there's a consultation process. You know, that agency has to consult with other agencies and so they can do it on their own. But it's cumbersome. And the same people engaging in that are, you know, also have other responsibilities.

 

Nick Capodice: [00:22:44.32] Well, Hanna, you and I have been in situations where we need ten different people to agree on the best final version of something. And frankly, it's not always the easiest or most efficient process.

 

Hannah McCarthy: [00:22:54.70] But there are some newer processes for declassification to help deal with the scale of that work because there is a huge backlog, not least because of that issue we talked about earlier over classification. For example, in 2009, President Obama's updated executive order created something called the National Declassification Center.

 

Margaret Kwoka: [00:23:14.92] And it is also supposed to take the initiative to engage in review and declassify records and seems to be working hard to do so. But even when it reports sort of large volumes of records declassified, it just pales in comparison to the number of documents that are being classified during the same period of time. Right. It's sort of like just overwhelmed by the number of new secrets as well.

 

Hannah McCarthy: [00:23:41.47] According to the most recent ISOO report, that's the Information Security Oversight Office, nearly half of the information that was slated for automatic declassification was not declassified, but it also wasn't exempted from declassification.

 

Nick Capodice: [00:23:59.14] So it sounds like even though we have a declassification system, it's not keeping up with the amount of information that it needs to sort through.

 

Hannah McCarthy: [00:24:06.94] And one more thing, Nick. People like you and me, journalists, sometimes we have a hand in declassifying material, too.

 

Margaret Kwoka: [00:24:15.76] And then the last thing I'll say is that actually the Freedom of Information Act, FOIA, is sort of a back door way to declassification.

 

Hannah McCarthy: [00:24:25.99] That is the 1967 law that said that government agencies are required to provide unreleased or uncirculated information to the public upon request. Foi requests are a common tool for journalists reporting on government accountability and issues like that. And normally classified information is exempt from FOIA requests, but not always.

 

Margaret Kwoka: [00:24:47.59] So if an individual makes a request for records under FOIA and an agency claims that they're exempt as classified, people can go to court and challenge that, saying they think they should have access because even if they're marked classified, they weren't properly classified. Right. That they didn't really fall under the provisions of the executive order and shouldn't have been classified. So that's sort of another route to getting to to that declassification result.

 

Nick Capodice: [00:25:15.18] It's also worth pointing out here that FOIA isn't exactly a perfectly operating system itself. Hanna and I submitted a FOIA request five years ago, and we're still waiting on it. We hear all the time about the backlog and inconsistencies and wait times for people requesting documents using FOIA.

 

Hannah McCarthy: [00:25:33.54] And again, on top of that, there are different interests within government agencies on the part of the public and courts that all complicate the declassification process. And there's one other thing that has come up in the news recently that we should probably talk about the president's right or not to declassify information. All right. So this.

 

Nick Capodice: [00:25:56.05] This is where President Trump, when he left office, brought a bunch of official documents home with him, including a lot of classified information, all of which should have been turned into the National Archives when he left office. And at one point, he claimed that he had declassified all the classified information.

 

Donald Trump: [00:26:14.74] If you are the president of the United States, you can declassify just by saying it's declassified, even by thinking about it, because you're sending it to Mar a Lago or to wherever you're sending it. And there doesn't have to be a process. There can be a process, but there doesn't have to be. You're the president. You make that decision.

 

Nick Capodice: [00:26:36.15] So does the president have the right to declassify anything they want at any time?

 

Margaret Kwoka: [00:26:42.51] Another, you know, excellent and obviously highly relevant question that unfortunately has no super clear answer. But one thing I'll say is the executive order is wholly within the president's discretion. So these are orders issued by the president. Everyone agrees that the president has the authority to both classify and declassify records. You know, normally there's a process specified in the executive order about how to go through with declassification. There has been at least a suggestion by one circuit court that in another context that a president would have to go through the same procedures as anybody else, though I think that's potentially up for, you know, judicial interpretation of of what kinds of procedures would have to be be utilized.

 

Hannah McCarthy: [00:27:31.41] So, in essence, yes, a president while in office can declassify information. The norms would suggest that a president should follow the same process as anyone else. But those are norms that are now being tested.

 

Margaret Kwoka: [00:27:47.14] If we sort of hone in on what's really at issue with the, you know, with President Trump and whether these records could have been declassified. You know, if the allegations in the indictment are, in fact, proven true, it appears to be that President Trump has, you know, at least privately and, you know, potentially now on some recorded piece of evidence, admitted that he, in fact, did not declassify these records. So I think one thing is, you know, whether in some other circumstance, a president could declassify with less procedures than the executive order specifies or in some other alternative way that not actually would appears to have happened here. Right. And so I think that's sort of just an important point to start with. Also, this idea like you could declassify in your mind without telling anybody like these are really problematic. I think suggestions just for any normal functioning of government. So we don't know for sure because there haven't been cases testing what obligations or what methods a president might use to declassify. But I think regardless of what a court might find, a president had more or less prerogative to do. It didn't happen here. Right. At least what the indictment suggests.

 

Nick Capodice: [00:29:08.47] So let me make sure I get this right. On a practical level, there is a system for how to properly declassify information because that changes how the information is labeled, stored and shared. And if Trump did declassify something by just thinking about it, as he claimed he did, that doesn't really fit with all of the logistics that we have just spent the last half hour talking about.

 

Hannah McCarthy: [00:29:34.75] And furthermore, whether Trump declassified the documents as he claimed, these were still government documents and as such belonged to the American public, they were not his documents to take.

 

Margaret Kwoka: [00:29:48.01] There's a lot of long standing, important issues around reforming the classification system that are worthy of discussion at any moment in time. But since this is coming up around the issues that are raised by the indictment of former President Trump, I think it's really important for people to understand how, you know, when it comes to presidencies, the norms that are carried from administration to administration and the president's own commitment to following the obligations in the law have traditionally just been really important as a matter of setting up these kinds of potentially interbranch conflicts. Testing the boundaries of these is not something that most presidents have been interested in doing. They've sort of tried to faithfully follow them. And we've just never seen a situation that has kind of set up this conflict so starkly. And I think it's important for us to to remember how important norms are, because these are issues that we haven't seen tested in the courts. And now that we're going to I think we would all probably prefer if we didn't have have to be in the situation of having courts decide these really tricky issues about presidential authority.

 

Nick Capodice: [00:31:19.89] Oh. Well, that's it for this episode. We could tell you more.

 

Donald Trump: [00:31:25.63] But it's classified.

 

Nick Capodice: [00:31:27.70] This episode was made by Christina Phillips with Help from Me, Nick Capodice Hannah McCarthy and Rebecca Lavoy. Music in this episode by Blue Dot Sessions Cooper Canal ScanGlobe, Kylo Katz, Emily Sprague, Farrell Wooten. The New Fools RCA Arc du Soleil broke for free Glove Box Trio Leo Sven Lindvall Ash sculptures. Timothy Infinite, SFX Producer ooyy El Flaco Collective and Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio.

 


 
 

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What is RICO?

In August, 2023 Donald Trump and 18 others were indicted for violating Georgia's RICO law. Today we break down RICO, the Racketeer Influenced and Corrupt Organizations Act from 1970, and learn the origins and purpose of RICO as well as how RICO cases differ from others. 

Our guest is Myles Ranier, civil litigator and former federal prosecutor for the Eastern District of Louisiana. 


Transcript

archival: So lately you've heard the word indictment and also the term RICO a lot. You might be wondering what those words actually mean here at home.

archival: We could know as early as next week whether the Fulton County DA will seek indictments against Mr. Trump and his allies in their efforts to overturn his 2020 election loss here in Georgia.

archival: Da Fani Willis is widely expected to bring state racketeering or RICO charges against the former president and others in his inner circle.

archival: Even though this is a fourth indictment, this is why many people say [00:00:30] this is the biggest deal of all of them, correct?

archival: Yes, this is the biggest deal because of the reach of Georgia's RICO charge.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about RICO. Quick hit. Get in, Get out. Get a t shirt. If you don't know what RICO is, you're going to know by the end of this episode.

Hannah McCarthy: Okay. So, Nick, I have been following the indictments of Donald Trump and I know [00:01:00] a little bit about the term RICO charge, but I would really like a deeper dive on this.

Nick Capodice: There's probably a lot of people out there who aren't familiar with what a RICO charge is, and it is relevant today for those who haven't heard, because Donald Trump and 18 other people were indicted for RICO charges in August of 2023.

Hannah McCarthy: So first off, RICO is an acronym, isn't it?

Nick Capodice: Yes it is. And it's an acronym because you can say it as a new word like scuba or radar. Like [00:01:30] if you say the letters AARP, that's an initialism. Technically.

Hannah McCarthy: You never fail to sneak that in, do you?

Nick Capodice: Nope. Never miss a chance to be a pedant. Hannah RICO stands for the racketeering Influenced and Corrupt Organizations Act.

Myles Ranier: RICO Statute federally was passed in 1970. So before that, what was going on or what was described as going on in the US then? And what was a problem was the power of organized crime. [00:02:00]

Nick Capodice: This is Myles Ranier.

Myles Ranier: I am currently a civil litigator in Lake Charles, Louisiana, but for eight years I was a federal prosecutor in the Eastern District of Louisiana, in New Orleans.

Nick Capodice: And when Myles was a federal prosecutor, he handled some RICO prosecutions.

Hannah McCarthy: Okay, So why did we need to make a whole new act just to deal with organized crime? Specifically.

Myles Ranier: What prosecutors were facing was [00:02:30] organized crime exists, but they really don't have any tools to prosecute it. And what I mean is you could imagine, you know, picture the kind of first half of Goodfellas, right.

archival: And Jimmy two times who got that nickname because he said everything twice. Like, I'm. Going to go get the papers, get the papers.

Myles Ranier: 1950s, 1960s New York. And you know, you have a business owner who is being shook down in a racket, [00:03:00] right? You've heard of a racket? A protection racket? Well, that's where racketeering comes from.

Hannah McCarthy: A protection racket, as in, say, a mob boss asks a bunch of local businesses to pay them for, quote, protection when it's really more like, Pay me or I'll smash your windows.

Nick Capodice: Exactly.

Myles Ranier: But prosecutors hands are tied because they have basically, you know, a guy threatening to beat up another guy is what may be an assault. You know, [00:03:30] maybe New York at that time had an extortion law, but the penalties for that were probably not very good. The only person who could be charged would be sort of a low level mobster and not some upper a head of a criminal organization and even prosecute it. You would need the guy who's being shook down to come into court and testify. And that's probably not in his long term interest or something he's going to really want to do. So the prosecutor's hands are tied.

Hannah McCarthy: So [00:04:00] this is that famous movie trope of the bottom rung henchmen taking the fall for the boss. And then that other trope of the witness not wanting to testify because it was very dangerous to do so.

archival: Were you at any time a member of a crime organization headed by Michael Corleone?

Frankie Five Angels: I don't know nothing about that.

Nick Capodice: Yeah, those tropes, I didn't know no, Godfather. I love movies with those tropes, I can't help it. Partly because they seem so antiquated. You you don't [00:04:30] hear a lot of stories of Goodfellas or Godfather style organized crime these days, but it was rampant in the US in the 50s, 60s and 70s.

Myles Ranier: Obviously having a very powerful organized crime unchecked is bad for democracy, bad for society and creates all these sort of negative corollaries. So in 1969 the US Congress passes the RICO statute and it's a very good tool for prosecutors [00:05:00] in cases that are a little more complicated. One in the number of participants, the number of potential defendants or coconspirators that are involved to the number of crimes being committed. You know, even though they may be small crimes like a repeated assaults or repeated thefts or whatever, there are a lot of them that are occurring. And if they're sort of people a hierarchy in a in an enterprise that you may not be able to attack in a traditional [00:05:30] way, you can do it using a RICO statute, you know, gives you the tools and enables you to combine all those individual acts against individual defendants and into one. Indictment and one charge against a big group.

Hannah McCarthy: Okay. So it's a way to take down a criminal organization. Wrapping up a bunch of charges, small or big, and tying them into one bundle. To prosecute. Yeah. What's the potential punishment for someone found [00:06:00] guilty of a RICO charge federally?

Myles Ranier: You could face a sentence from anywhere to 0 to 20 years. However, if the RICO statute involved more serious crimes like murder, the sentence is potentially up to life, but generally 0 to 20 years. And I think in Georgia the Senate is 5 to 20 years.

Hannah McCarthy: So there are federal RICO charges, but also state ones.

Nick Capodice: Yeah, there are some famous federal RICO cases [00:06:30] like Us V Barger, which was a failed attempt by the US government to take down the Hells Angels in 1979 or the Chicago outfit in 2005, when five members of the mob were successfully convicted under RICO charges. And also 33 states have RICO laws. These are often used in cases involving gang activity. But a, quote, corrupt organization does not necessarily apply to what we think of as organized crime. [00:07:00]

Myles Ranier: The what you have to prove is an enterprise, and an enterprise can include formal and informal organizations. It could be a corporation that's obvious, right? A partnership, some sort of legally declared association, a group of people who associate with one another and were working towards a common goal and using crimes [00:07:30] to commit that goal in an enterprise can be, you know, totally legitimate or legal, but it can also be illegal. So, you know, a group of guys meeting to play pickup basketball, you know, could qualify as an enterprise, you know, But if they also were selling drugs or, you know, shaking down, you know, the corner store, then, you know, could could graduate to a criminal enterprise.

Nick Capodice: There's one other [00:08:00] civil RICO case I got to bring up here. It's from 2013. This is a case that makes me when someone asks, what's up with the Donald Trump RICO case reply Which one?

Hannah McCarthy: Wait. Donald Trump has been charged in a RICO case before.

Nick Capodice: He has indeed. Art Cohen versus Donald Trump was going to be heard in the US District Court for the Southern District of California. Art Cohen had enrolled in the so-called Trump University Trump University.

archival: We teach success. That's what it's all about success. [00:08:30] It's going to happen to you.

Nick Capodice: Which he said had promised mentorships and real estate secrets and delivered, quote, Neither Donald Trump nor a university end quote. Now, this case was settled for $25 million shortly after Trump took office.

Hannah McCarthy: Wow. Okay. So now I want to get to Georgia to the 2023 indictment of Donald Trump and others. What specifically are the RICO charges there?

Nick Capodice: I'm going to lay it all [00:09:00] out. And some things Myles told me to watch out for right after this break.

Hannah McCarthy: But first, you know what's not a corrupt organization?

Nick Capodice: Oh, goodness Hannah.

Hannah McCarthy: We aren't. I mean, I'm not talking about the potential corruption of your soul, Nick.

Nick Capodice: I have played my share of cards and dice.

Hannah McCarthy: But Civics 101 is a listener supported show, utterly devoid of graft, and we rely on that support. Consider making a tax deductible donation in any amount at our website, civics101podcast.org.

Hannah McCarthy: We're [00:09:30] back. We're talking about RICO here on Civics 101. And Nick, you were just about to jump into the RICO charges against Donald Trump in 18 others in Georgia.

Nick Capodice: I was indeed. On August 15th, 2023, 23 jurors. That is the maximum amount you can have in a grand jury voted unanimously, as you have to do, to indict someone to [00:10:00] indeed indict Donald Trump and 18 others under Georgia's RICO law. The indictment is 98 pages. There are 41 counts. The first count is a violation of the RICO Act, and it lists 161 acts of racketeering. Now, I am not going to read them, but you should. Dear listener, though I do want to hear the introduction of the indictment. It's about as plain as you can get. Hannah, would you read it for the class?

Hannah McCarthy: Sure will. Here we go. Quote, [00:10:30] Defendant Donald John Trump lost the United States presidential election held on November 3rd, 2020. One of the states he lost was Georgia. Trump and the other defendants charged in this indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump. That conspiracy contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, [00:11:00] elsewhere in the state of Georgia and in other states.

Nick Capodice: Thank you, Hannah.

Hannah McCarthy: You're welcome. I just want to clarify, the 161 acts are part of that RICO charge. That seems like an awful lot.

Nick Capodice: They are indeed. They're part of that one charge. And it does seem like a lot. You don't always see such a long list of specific acts outlined in an indictment, but that could be part of a legal strategy. Here's Myles Rainer again, former federal prosecutor and currently a civil litigator.

Myles Ranier: There's a couple philosophies, [00:11:30] but behind including all these overt acts and an indictment, one is, you know, it makes a great read, right? So if you go through and read this indictment, there is all sorts of scandalous allegations that are now out in the public. So in some ways, instead of the prosecutors having to defend themselves and explain, they could have charged a four page indictment that said so-and-so committed, you know, violated the [00:12:00] Georgia RICO statute, and here are the crimes that are committed and not listed, all those overt acts. And it just leads the public to say, well, do they have any evidence? You know, is there what do they have? But by listing, you know, these 140 or 100 and something overt acts, it kind of one tells a story, you know, and two, lays out, hey, here's all the evidence we have. And then three, strategically it kind of guarantees or at least makes it [00:12:30] that a judge is much more likely to allow those events to be discussed because they are contained in the indictment. They were kind of reviewed by a grand jury as opposed to not listing them. And then you're sort of fighting with every event you want to introduce about whether it's relevant, whether it's, you know, prejudicial. And a judge can say, I don't know if I'm going to let that in.

Nick Capodice: I asked Myles, why RICO? You know, and he made it clear he did not want to [00:13:00] opine on anything political whatsoever with us. But he did give a purely legal hypothesis on why a prosecutor might use RICO in a case like this.

Myles Ranier: You know, it looks like from their perspective that they saw that a lot of crimes had been committed, that these crimes were committed in furtherance of a sort of common goal, that these crimes were [00:13:30] committed by dozens of people who themselves were committing, you know, hundreds of acts to commit these crimes in furtherance of this common goal. And so in light of that, RICO is the ideal statute in these types of situations to use in terms of being effective for prosecutors based on the charges contained in the indictment, you've got making false statements, impersonating a public [00:14:00] officer, a forgery, filing false documents, influencing witnesses, computer theft, computer trespass, defrauding the state, regular trespass, regular theft. You know, so that's about ten or a dozen criminal statutes that they've alleged have been violated. I can see why procedurally RICO was a good fit if the prosecutors believed that these crimes had been committed.

Hannah McCarthy: So I'm getting that a RICO charge is a special, [00:14:30] powerful kind of charge in that it can. Many other charges. Does it differ in other ways from the typical court process?

Nick Capodice: What do you mean?

Hannah McCarthy: Like, can you change your plea for a lesser sentence? Can you appeal the decision? All of that? Oh, yeah, absolutely.

Nick Capodice: You can or you can settle like Trump did in his other RICO case, same as usual. And this is actually one of the things Myles told us to watch out for in the coming months.

Myles Ranier: You can plead out, you can, you know, and [00:15:00] if you look at the certain indictments, you'll see a lot of stuff about unindicted coconspirator. You know, that that defendant did this with unindicted coconspirator and that can you know, you can start asking some questions. One, why is he unindicted or why is she unindicted? Did they just not have enough evidence? Did you know the prosecutors just say, hey, we have to cut this thing off at a certain point, we can't indict 200 people, so we're just going to focus on the top 30? Or is that unindicted [00:15:30] coconspirator or cooperating witness You know, they themselves are appearing in the grand jury and providing a lot of this information that is now contained in the indictment. Who are these unindicted coconspirators? Are they going to pop up as witnesses later? You know, do the the people who are charged, are they reading the indictment being, oh, that's so-and-so, you know, that rascal? You know, I can't believe he, you know, became a state's witness or, you know, So, yeah, those are the little inside baseball [00:16:00] when, you know, you're kind of reading these things.

Nick Capodice: And another little snippet of Inside baseball that Myles told me about was one of the difficulties with RICO cases. They can take a long, long time.

Myles Ranier: Look, I will say, you know, in an indictment that long with that many people trying, this case could take months and say that because I know in Atlanta right now there is a gang prosecution associated [00:16:30] with a record label. And it's there's a rapper charge named Young Thug. And occasionally, just out of curiosity, I'll Google the case or see what's going on with it. And it has been going on for, I want to say, at least six months. And, you know, looks like it may last, you know, a year. So if this thing does go to trial, it sounds like it could last a very long time. There is just a lot of procedural things you have [00:17:00] to do when you have a dozen defendants or 20 defendants sitting in a court. Each one of their lawyers has an opportunity to be heard on every objection or every point of evidence. And it just can create an incredible amount of delay. Each one of those defendants lawyers would have an opportunity to cross-examine a witness. So, you know, instead of 1 or 2 cross-examinations, you're getting 22 if there are 30 people in the trial. 30. So. That would be a downside [00:17:30] to RICO, right? And that would be a downside of these kind of sprawling gang indictments or criminal enterprise indictments is if they end up going to trial and, you know, nobody pleads out, you could be in court for a year. And it's just an incredible drain on the court's resources, on the prosecutor's resources, on the defendants themselves. You know, you might start coming up on speedy [00:18:00] trial rights and, you know, things like that when you know something is this complicated and big to move around.

Hannah McCarthy: Last thing, Nick, there are 19 alleged conspirators total. And of course, Donald Trump is the most mentioned in the news. But I've also seen a lot of attention paid to Rudy Giuliani specifically. What's going on there?

Nick Capodice: It's not ironic technically, but you might call it a little bit of situational irony.

Myles Ranier: Yes. You know, so Giuliani [00:18:30] cut his teeth as a US attorney, you know, a federal prosecutor in Southern district of New York, you know, one of the most prestigious offices of the US attorneys and the Department of Justice. And Giuliani was famous for taking on and defeating the Italian organized crime and mafia in New York and using this very statute to attack them and take them out.

Speaker13: We're going [00:19:00] to have to attack it as a business, not just as individual crime. We have followed up with civil RICO cases. There'll be some point in the future in which we will really destroy the power of the mafia.

Myles Ranier: And so it's certainly ironic or, you know, sad or, you know, bitter, depending on how you look at things that, you know, he is now himself, someone who used this and may have been sort of a pioneer in using it or certainly who wielded it very effectively against, you know, pernicious influence in society has now been charged [00:19:30] with violating or at least the Georgia version of the statute.

Hannah McCarthy: Uh, okay. I see. It's ironic, but only by Alanis Morissette's definition.

Nick Capodice: Did you know. The only ironic thing in the song Ironic is that none of the things in it are ironies.

Hannah McCarthy: Yeah, Nick, I guess that is ironic.

Nick Capodice: Don't you think?

An attorney general. Turned 79. Used RICO constantly [00:20:00] to fight organized crime. Took down the five families as the prosecutor.Now he's been charged. As a coconspirator. Isn't it situationally ironic, don't you think? A little bit more of a coincidence than an irony. Yeah. And I really do think. It's like Rain on your wedding day. It's a [00:20:30]free ride when you've already paid. It's the Good advice that you just didn't take. And who would've thought, it figures??

Speaker14: Real. Well, that's RICO.

Nick Capodice: With the many apologies to Alanis Morissette, Alanis Morissette, you are a super rock star soloist. [00:21:00] You're good to the max. This episode was made by me Nick Capodice with You. Hannah McCarthy. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. And so much more. Special thanks. Go out to my lawyer sister, Cami, for helping me out on this one. This is a song by Nando. I love it. And the rest of the episode we had music by Scott Holmes, Scan Globe, Scott McCloud, Lobo Loco, The New Fools. Mo Light. Fabian Tell Eden Avery. El Flaco Collective. Ben Nelson. Ryan James Carr. Sarah the Instrumentalist. Chad Crouch and my favorite enterprise [00:21:30] musically, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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The Republican and Democratic Parties

Today we look at the creation and evolution of the two major parties in the US; the Republican Party and the Democratic Party. How did they come about? How did their ideals shift over the last 200+ years? And where might they go next?

These episodes originally aired in 2020, and feature Keneshia Grant, George Will, Kathryn DePalo-Gould, Heather Wagner, Paddy Riley, and William Adler.


Transcript

Republicans and Democrats_2023.mp3

Hannah McCarthy: You know, Nick, I was born on an election night.

Nick Capodice: Oh, you don't say. You know, I haven't heard this before. Hannah, what a surprise.

Hannah McCarthy: The 1990 Massachusetts gubernatorial election between Republican Bill Weld and Democrat John Silber.

Archival: All right, Mr. Weld, the question now for Mr. Silber.

Archival: Can you tell us, doctor, what is your program for controlling health care costs in this state?

Archival: Yes, I'm highly concerned about that and have made a consistent and steady study of it since [00:00:30] the campaign began. I think first and foremost, we've got to stop.

Nick Capodice: You know, I wonder, Hannah, if maybe, just maybe, your mom ever tells the story like you were born and they said it's a girl and who's the governor? Okay.

Hannah McCarthy: All right. I've told you this before.

Nick Capodice: Once or twice.

Hannah McCarthy: But the reason I am telling all these people.

Nick Capodice: These people, these people out there listening to us.

Hannah McCarthy: Yes, these people is that I grew up being told that I was born on the night of an election between two very strong, [00:01:00] very smart, very engaging candidates. And or so my mother claims. She would have been content no matter who won.

Nick Capodice: I cannot imagine anyone saying such a thing today.

Hannah McCarthy: Nor can I. So today, what happened to us? Whatever happened to I take either candidate happily

Nick Capodice: But seriously are you going to actually answer that question in this episode?

Hannah McCarthy: I am absolutely [00:01:30] not. I also don't necessarily believe that that ever really existed, but I did think that today we could do a little storytelling, because I can tell you how the Republican and Democratic parties became the Republican and Democratic parties. And sometimes it helps us and maybe it only helps us for the duration of a podcast. Sometimes it helps us like each other a little more when we know each other a little better. So this is Civics 101 and we're [00:02:00] partying down with the Republicans and the Democrats.

George Will: Hello?

Hannah McCarthy: Hello? Is this Mr. George Will?

George Will: This is me.

Hannah McCarthy: Hello. This is Hannah McCarthy at New Hampshire Public Radio. How are you doing this afternoon?

George Will: I thrive.

Hannah McCarthy: This episode first dropped, as they say, back in 2020.

Nick Capodice: Oh, 2020. You remember that?

Hannah McCarthy: I honestly am not sure how clearly I do, Nick, but I do remember this man, that's for sure. George Will, conservative political commentator, writer of columns and many [00:02:30] books, most recently The Conservative Sensibility.

Nick Capodice: Right. The thing you need to know about George Will is that this lifelong Republican is not a Republican at the current time.

Hannah McCarthy: He severed ties after the 2016 election. He is now unaffiliated, you know.

George Will: Leaving the Republican political parties, not leaving a church or like leaving your family. It's not a wrench to your identity. Political parties are useful until they're not. And [00:03:00] I decided the Republican Party wasn't useful to me anymore.

Hannah McCarthy: George Will is discontented at the moment, which is kind of perfect because discontentment, the writing of a new political philosophy, the sloughing off of the old and no longer useful. That is where the Republican Party all started and that is why it has changed over time.

George Will: People ought to remember that the Republican Party started as a third party. Americans periodically say, Gee, can't we break up the [00:03:30] the duopoly of our two party system? Well, we did once, and that is the Whigs were there. And then suddenly they weren't there. They were replaced by this insurgent third party, the Republicans, founded in 1854, in Wisconsin.

Hannah McCarthy: The Republican Party that started in Wisconsin in 1854, by the way, looked dramatically different from the party that George Will decided to leave back in 2016.

Nick Capodice: Wait. Before you take us to the establishment of the party, can we just talk a little [00:04:00] bit about what the Republican Party platform is today?

Hannah McCarthy: So the last time the party published an official platform was 2016. Official meaning that it is drafted and voted on by elite party members and then unveiled and adopted during the party's respective national conventions.

Nick Capodice: Wait. The last time the Republican Party did this was 2016. It's 2023.

Hannah McCarthy: It sure is. In 2020, the Republicans [00:04:30] passed a resolution saying, look, it's 2020. You know that 2020. And because of restrictions on gathering sizes, because not enough people could get together and vote on a new platform and because the party said they, quote, would have undoubtedly unanimously agreed to reassert the party's strong support for President Donald Trump and his administration, unquote. Among many other reasons, any motion to amend the 2016 platform [00:05:00] or adopt a new one would be ruled out of order.

Nick Capodice: Wow. Okay, so no new platform as of September 2023 or since 2016, seven years.

Hannah McCarthy: And keep in mind, either way, few members of the party outside of politicians and pundits actually read platforms. But lawmakers do tend to vote along the lines that platforms establish. So the Republican platform reflects [00:05:30] social conservatism. It supports restrictions on abortion and immigration, but fewer restrictions on gun rights and corporations. It's big on states rights as well as school choice. Fiscally, the GOP is all about low taxes and free market capitalism, which is most basically a system where the market regulates itself and government stays out of it.

Nick Capodice: Socially conservative, Generally opposed to government interference with economics [00:06:00] and state lawmaking. And that's the brand of the GOP, right? Wait. Why do we call them the GOP?

Hannah McCarthy: Oh yeah. Gop stands for Grand Old Party, which used to be a moniker used by the Democrats. But the Republicans kind of took it over following the Civil War and it just stuck. Okay.

Nick Capodice: And despite them being the Grand Old Party, the Republican Party is, in fact, younger than the Democratic Party.

Hannah McCarthy: It is indeed. For a [00:06:30] few decades in the 19th century, it was the Democrats and the Whigs. And they're holding down the fort, trading the presidency back and forth.

Kathryn Depalo-Gould: Well, the Republican Party, as we know it, formed in 1856, and it was the first time that the Republicans as a party had a national convention.

Hannah McCarthy: This is Kathryn DePaulo Gould. She's a professor of political science at Florida International University.

Kathryn Depalo-Gould: And really, what had happened previous to this is the Democratic [00:07:00] Party created in 1828, really with the election of Andrew Jackson, had existed alongside the Whigs, and the Whig Party had competed with the Democrats up until about the 1850s.

Hannah McCarthy: So mid 1850s, the civil war is on the horizon.

Kathryn Depalo-Gould: At that point, slavery became such a huge issue and the Whig Party refused to take a stance. And by the 1850s, slavery wasn't something you could just sort of go, meh. [00:07:30] So what happened was the Whigs split apart and those that had supported slavery became Democrats, and those who wanted slavery abolished became the Republicans.

Nick Capodice: So the Whig Party just vanishes.

Hannah McCarthy: It couldn't agree on slavery, an issue powerful enough to tear the country apart. And it tore the Whigs apart as well. So the Republicans staked their platform mostly on being anti-slavery. Some of them are outright Abolitionists want to [00:08:00] get rid of slavery entirely. Some just don't want it to expand west as the country expands west, there's a whiff of small government and states rights in there. But fighting slavery is the great unifier for this young party. Their first presidential candidate, John C Fremont, loses to James Buchanan, but their next candidate is Abraham Lincoln.

Nick Capodice: So a completely brand new party manages somehow to elect the guy who's later considered the greatest [00:08:30] president of all time.

Hannah McCarthy: Well, you can't discount the fact that this party bursts onto the scene in what is essentially a perfect political storm, because you've got the weakening of the Whigs. There's this division in the Democratic Party and this really strong, simple platform of being the anti-slavery party.

Nick Capodice: Okay? But after the war is done, then what are the Republicans once slavery is eradicated, what's [00:09:00] their new platform?

Kathryn Depalo-Gould: What is interesting is the Republican Party really became this sort of civil rights party even during reconstruction, after the Civil War. They pushed different civil rights acts to protect these newly freed slaves from their state governments for violating their rights.

Hannah McCarthy: For a while after the war, the Republican Party remained the party on the side of African-Americans. They pushed for civil rights legislation, and they started [00:09:30] the Freedmen's Bureau to protect formerly enslaved people in the South. But the country is changing, and so the Republican Party begins to change, too.

William Adler: The beginning of it, I guess, would be. The 20th century. The early 20th century. And maybe around 1912 or so.

Hannah McCarthy: This is William Adler, associate professor of political science at Northeastern Illinois University.

William Adler: And this is actually the 1912 presidential election [00:10:00] turns into a three way contest between Woodrow Wilson for the Democrats. William Howard Taft, who's the president at the time, the incumbent president of the Republican Party, and then Teddy Roosevelt, who had already been president under the Republican banner, comes back in 1912, decides he wants to try to get the nomination of the Republican Party again away from Taft. A very complicated and messy drama between the two former friends. Taft ends up getting the nomination and Roosevelt [00:10:30] and his supporters leave the Republican Party and form a new third party that they call the Progressive Party, sometimes called the Bull Moose Party because of the insignia of the party organization.

Nick Capodice: Right. This is the election where Teddy Roosevelt spoils the Republican vote by running as a strong third party candidate.

Hannah McCarthy: You have the more progressive Republicans behind Teddy Roosevelt and the more conservative Republicans behind Taft and the Democrat Woodrow Wilson wins. [00:11:00] Now, the Progressive Party does not stick around, but that divide between liberal Republicans and conservative Republicans does.

Nick Capodice: So is this that moment that shifts the Republican Party towards conservatism?

Hannah McCarthy: Well, it certainly part of it, but the shift takes a really long time. For decades, the Republican Party dances and vacillates on social and economic issues.

William Adler: It's not clean because you still do [00:11:30] have conservative Democrats representing the South, progressive Republicans representing New England and the Northeast. But it's sort of the first move towards that process. The presidency of Franklin D. Roosevelt is also a step in that process.

Hannah McCarthy: Remember, the Republican Party is the party of the North, ostensibly the party of African-American rights. But as the nation is becoming more urban and more industrialized, it's also the party of northern [00:12:00] businessmen. And both parties are reassessing who it is they want to court as voters. And a few other complications arise between the 1912 election and the election of Franklin Delano Roosevelt in 1933.

Keneshia Grant: One of the important things that happens is the Great Depression. And in the Great Depression, the parties have to make a decision about how they are going to respond. The Republican Party suggests that it wants to respond by waiting it out. It'll be okay. We have kind of downticks in [00:12:30] our economy all the time.

Hannah McCarthy: This is Keneshia Grant, assistant professor of political science at Howard University. She also happens to be a foremost scholar on the other major shift happening in the United States at the time, the Great Migration.

Keneshia Grant: Black People are flooding into the cities. The Great Migration brings about 6.5 million Black people from the south into the north.

Hannah McCarthy: The Republican Party is focusing on business interests and toeing a different line than the Democrats in terms of the economy. Right.

Nick Capodice: And all of these [00:13:00] African-Americans who are moving into the north, I imagine their needs don't necessarily line up with the needs of comparatively prospering northern elites. Right.

Keneshia Grant: The Republican Party and the people who are making decisions in the Republican Party are suggesting that the Great Depression is not actually that bad. You know, it'll pass. It'll be fine. But they're making those statements because they are not impacted in the same way. Like they they may may lose money, but their losses are not going to look anything like the losses of [00:13:30] the person who has just moved to Philadelphia, for example.

Nick Capodice: So is this when the African American community started to vote more Democrat when we elected FDR?

Hannah McCarthy: Well, not the first time he was elected. Actually, the 1932 election was the last one in which a Republican candidate got the majority of African American and person of color votes. Things began to change after that. But, you know, again, it was slow.

Keneshia Grant: This is not a neat [00:14:00] transition. It's a messy transition. So whether Republicans support Black political participation and how they do varies from place to place. So I went to school in Syracuse for grad school in Syracuse, New York. Black people participated as Republicans for a long time because the Republican Party was actually friendly to Black interests. So we think about Chicago. We think about New York, we think about Democrats. But there are some pockets of places where the Republican [00:14:30] Party does kind of do the civil rights thing. And Black people are thoughtful enough to go to the party that best supports their interests at the time. But eventually the things that are happening and percolating at the state and local level have to be reckoned with at the national level. And I think this is where we end up with a Republican Party that's making decisions about not necessarily we don't want to be the party of civil rights, but we really care about business interests.

Nick Capodice: So [00:15:00] if the GOP starts focusing less and less on civil rights, that leaves this huge issue and a voter base wide open.

Hannah McCarthy: Right? This is all part of that transition. And then something big happens in the mid 20th century. Here's William Adler again.

William Adler: And then the big shift happens after the presidency of Lyndon Johnson in the 1960s, really tied in to the passage of the civil rights laws, which really marks the Democrats as [00:15:30] the party of the liberal side. And gradually the Republicans, even though they're split on the issue of civil rights gradually after that point, turn in a more conservative direction, gradually over the course of the 60s, 70s, 80s and 90s, all those Southern Democrats gradually become Republicans. And so what you have today then, is a situation where those peoples, you know, the next generation down the line have essentially flipped their partizan loyalties. [00:16:00] As a result.

Hannah McCarthy: Many Republicans, including George Will say that this change really happened with Barry Goldwater, who ran for president in 1964. Goldwater sought to refocus the party.

George Will: Goldwater said in his book, The Conscience of a Conservative that we had strayed from the idea of limited government, that the founders wanted it limited for a reason that government should be limited in its power to allocate wealth and opportunity [00:16:30] so that we don't politicize life promiscuously. So I think beginning with Goldwater, we began to worry about this articulately and we began to say that the Republican Party has to rethink its its connection to the founding.

Nick Capodice: So Goldwater is saying the Republican Party should get back to its roots, which is about small government and the free market.

Hannah McCarthy: Yeah, he was very much opposed to government interference. He was all about states rights. He [00:17:00] was opposed to most social programs. A lot of moderates in the GOP thought that he was too far right, but he had passionate support among voters and really served to establish the Republican Party as the party of the right. Even that, though, took decades of ideological tug of war between conservative. And liberal Republicans.

George Will: That lasted until Ronald Reagan came in and the parties began to sort themselves out. There really are no longer liberal Republicans and they're no longer conservative Democrats. [00:17:30] Whether people are happy about this remains to be seen.

Nick Capodice: Hannah we've been talking so much about strong but limited government and free market capitalism. But we also have social conservatism, right? We haven't talked about the, quote, Christian Right. How how did they become such a significant part of the Republican Party's [00:18:00] voter base?

Hannah McCarthy: Well, Reagan I mean, Reagan, like really firmly established what the Republican Party is. He played to both the capitalist leanings and the social conservative leanings of the voter base. George Will calls this the theory of fusion, bringing together two separate but overlapping groups of people.

George Will: Evangelical, Christian, social conservatives concerned with abortion, pornography and all the rest. And on the other side, [00:18:30] the libertarian impulses of those who believe in free market capitalism. And what Ronald Reagan did was successfully bring those two into the Republican tent and keeping those two in in equilibrium and in amicable relations has been a sometimes challenging project. But it has been the essence of Republican success since Reagan.

Hannah McCarthy: Now, limited government, limited regulation, [00:19:00] social conservatism, these are all still elements of the Republican Party and George Will. He left the party because he felt that it had drifted away from its serious roots and rigorous questions about wealth and the free market and government efficiency and health care. He felt that the party had become a cult of personality. And given the fact that George Will is seeking a party recommitted to what he perceives as certain ideological [00:19:30] roots. I asked Catherine DePaulo Gould what she thought the future of the GOP looked like given its recent past.

Kathryn Depalo-Gould: I mean, what it's going to look like, I can never predict. But that is something that parties change. And I think the winning candidate who has voters who, you know, vote in the Electoral College system and this candidate's ideas go forward really influences the party's platform because especially in these days where we have ideologically divided [00:20:00] parties, they're very polarized ideologically, which we haven't really seen, frankly, since, you know, the Federalists with Hamilton and Adams and the Democratic Republicans with Jefferson and Madison. It's fascinating that it's almost like, what is my team doing? And I'm going to go with my team. And, you know, that kind of partizanship is something again, we've only seen a few times, I would argue, in US history.

Nick Capodice: So parties change constantly. [00:20:30] The Republican Party of 2020 was never going to look like the Republican Party of 1854. We shouldn't balk at change. Hannah But also the divide that's going on now between the party we're talking about and the other guys that's notable. Everyone out there who bemoans what they see as a fairly unique, gaping chasm. They are not wrong.

Hannah McCarthy: They are not wrong. And speaking of the other guys, Nick, shall we call [00:21:00] across the chasm, ask them how they got over there.

Nick Capodice: I think I can do that. Hannah, can I just go get a glass of water?

Hannah McCarthy: Sure Let's take a quick break. But before we do, you can go in one second. Nick, before we do, this is just a reminder that we have a lot of things to say that don't make it into any of our episodes. Do you have any idea how tough it is to limit yourself to a single episode to explain the roots of the Republican Party? It's hard, everyone. And so we have [00:21:30] got another place, a special cozy place where we put everything that does not make it into the episodes. And sometimes what doesn't make it in is that I have been thinking a lot about the 1990s gem of a television series, Pete and Pete, and maybe you'll find a way to make it civics relevant because everything is civics relevant. Okay. Anyway, that's special. Cozy places our newsletter and you can read it if you subscribe. Do that at our website civics101podcast.org.

Hannah McCarthy: We're [00:22:00] back. Today we are telling the fascinating tales of party origins. And I admittedly tend to put an outsized amount of weight in knowing one's history. But darn it all, I think it's important. So, Nick, do [00:22:30] you have the story of the Dems for us?

Nick Capodice: Oh, do I ever? I want to start with a pretty well established party trait here. Hannah, what color do you associate with the Republican Party?

Hannah McCarthy: Do you mean red? Like, is this. Is this a trick question? It's red.

Nick Capodice: Yeah, it's not a trick question. And the Democratic Party.

Hannah McCarthy: Blue.

Nick Capodice: And do you know how that came to be?

Hannah McCarthy: No. Have we not always had that? Are you going to tell me?

Nick Capodice: Buckle up, buttercup. I want [00:23:00] to play you something? This is from election night, 1980 electoral votes.

Archival: And so we will put on our map in blue. For those of you who are watching in color, we'll make Florida our projected winner for Reagan.

Hannah McCarthy: Blue for Reagan. And this is 1980.

Nick Capodice: Yeah, hold on.

Archival: Check this out. The color of those in now red across the western rim, the Pacific Rim of the United States for Bill Clinton. And just a few blue [00:23:30] spots on that map for George Bush 300 and that.

Nick Capodice: That was NBC coverage of the 1992 election. Democrats used to be red and then they sort of switched one station, switched it to red for Republicans because they said we're coloring it red for Reagan and the 1996 election, Clinton v Dole, that was the first year that all three major networks had red for the GOP and blue for Democrats. But the terms red state, blue state, they did not enter [00:24:00] our common parlance until...

Archival: It appears that there will be a recount in the state of Florida. They still need to wait for what is it? Overseas ballots. Ballots?

Hannah McCarthy: Bush v Gore.

Nick Capodice: Yeah, because of the closeness of that race, the ensuing recount. America had been staring at a red and blue map for days. I saw a Vox video about this, actually, and it said that David Letterman was one of the first. He made a joke about blue states and red states, and the term just stuck too soon.

Archival: Here's how it's going to go. George W [00:24:30] Bush will be president for the red states. Al Gore will be president for the blue states. And that's.

Nick Capodice: And now Democrats embrace their blue. They put it in their campaign logos. We have terms like blue wave versus a red tide. And that division, that color polarity is really new.

Hannah McCarthy: It's hard for me to wrap my mind around this idea that a party can rebrand itself that quickly based on this arbitrary choice made by a news network.

Nick Capodice: You [00:25:00] think that's strange, Hannah? Hold on to your little purple hat. You have tasked me here with telling the story of the Democratic Party, which, you know, I did back in 2020. And if we're going to talk about how the party has evolved over the years, we have to say what they're all about today. So let's go with their own words. In their 2016 Democratic platform, the planks of which included addressing economic inequality, [00:25:30] college debt, climate change and access to health care. It is also today the party of inclusivity when it comes to issues like same sex marriage, women's rights and immigration.

Hannah McCarthy: So let's go back now, the genesis of the Democratic Party. How did it start?

Heather Wagner: The Democratic Party, to make things really clear, began actually as the Republican Party.

Hannah McCarthy: Oh, come on.

Nick Capodice: I know. I'm sorry. I know. This is Heather Wagner, [00:26:00] by the way. She wrote the book The History of the Democratic Party.

Heather Wagner: So the Democratic Party was founded by Thomas Jefferson and other men like him who were dissatisfied with the direction the country was going under George Washington and John Adams. And they felt George Washington, John Adams, Alexander Hamilton were believers in a very strong central government.

Nick Capodice: And Jefferson wants a smaller federal government with more [00:26:30] power given to the states. And he is our first Democratic president, even though he was called sorry again, a Republican. But pretty quickly, the name gets changed by his opponents. Funnily enough, his.

Heather Wagner: Critics said that he and his supporters were too much like the radical French. As his wife, who had sparked the French Revolution and led to bloodshed and violence in France. And as the critique. [00:27:00] They called this group of Republicans, the Democratic Republicans. It was meant to be a disk. Jefferson and his supporters decided to adopt this almost as a point of honor and called themselves the Democratic Republicans.

Nick Capodice: And this was the founding of what we know today as the Democratic Party.

Hannah McCarthy: And how are their beliefs related to what we think of now when we think of Democrats?

Nick Capodice: Okay, Here's Keneshia Grant. She is a professor of political science at Howard University. [00:27:30]

Keneshia Grant: So when we think about the Democratic Party at that time, we don't think of it anything like the Democratic Party at this time. The Democratic Party at that time is liberal with a lowercase L, as scholars say, and that means that they don't want to see the government being very active. The government should not be involved in your life telling you what to do. The government should just kind of be around to make sure that things don't fall apart. Which is different from the party. As we think about it today, [00:28:00] we think about a Democratic Party today as one who is willing to step in to try to correct some of the perceived wrongs they, they might say, in the economy or some of the perceived wrongs in the way that we treat humans and these other kinds of things.

Hannah McCarthy: How does it change? Because that to me is like 180 degrees.

Nick Capodice: All right. We'll get there. And that is Keneshia's particular bailiwick. But first, there is a big shift and it starts with Andrew Jackson in 1829.

Heather Wagner: By the time Andrew [00:28:30] Jackson is president, he has dropped the Republican from his affiliation. So he identifies himself as a Democratic candidate. Andrew Jackson was a Southerner. He was a slave owner. He was a war hero. He championed even though he was a wealthy landowner. He championed the idea of sort of the ordinary man, common man around his his presidency was when [00:29:00] white men, I should say, were given the right to vote based on age as opposed to if you had property or paid a certain amount in in land owning taxes. So it was the evolution of voting rights towards white men over the age of 21 as opposed to landowners.

Nick Capodice: Quick side note opponents of Jackson during the 1828 election called him a word that means donkey, but it was an epithet that Jackson embraced. He even put images of donkeys on [00:29:30] his campaign posters. And that is when that all started. And the party that went up against Jackson was the National Republican Party. But they were just as often known as the Anti-jacksonians. They did not like what Jackson had done to the role of president.

Heather Wagner: He took steps to concentrate power and to make sure that he was a very powerful executive. He had taken certain policies that really infringed on the rights of Native Americans and [00:30:00] and the rights of states. And this sort of sowed the seeds of what would gradually flare up into the start of the modern Republican Party. And also the the disagreements that flared out into the civil war.

Keneshia Grant: So remember, the part of the story is that the parties want to maintain cohesion. They understand that it's difficult for minor parties, third parties or smaller parties to win the presidency. [00:30:30] It's difficult for them to win Senate seats or seats in the House of Representatives and be appointed to Senate seats. And because they are worried about splitting their power, they are trying to do everything they can to to remain together. And one of the things that splits them up more than anything else is kind of, I would say the thing that stresses the party the most is a conversation about slavery. And if we want to have a party that is unified [00:31:00] in the north and in the south, we can't have this conversation about slavery because people in the north are going to disagree from people in the South. So we end up with these parties that exist in different ways, because the one thing that they probably should be talking about, they are not talking about. So we end up with these cleavages kind of for that reason, where we have a Northern Democratic Party that looks different from a Southern Democratic Party, but eventually they do have that conversation and we end up with a Republican Party that's more dominant in the North because they have had the conversation to come down [00:31:30] on the side of Black people come down against slavery for various reasons. Again, not all of them on the up and up settled where we have a party again, Republican Party in the north, a Democratic Party that's kind of dominant in the south. And then we have some kind of debate about who's going to win the West and what the farmers want. And whether or not the parties will be willing to bend to the demands of the people who are in the West and who now have the ability to vote and influence politics, too.

Hannah McCarthy: All [00:32:00] right. Now, I want to learn about that shift. How does the party that is the party of slavery, the party of the Ku Klux Klan become the party of the civil rights movement, the party that gives us our first African-American president.

Keneshia Grant: So if you want to sound really smart with your friends, if you like, know a political scientist and you want to get their gears going, you just say realignment, because that is the one word answer to that question. Realignment [00:32:30] happens and the parties change. And so the political scientists argue about how realignment happens. I'm in the camp of people who think realignment is a slow and gradual process. The short version is that America changes. So in the story that we've been telling up to this point, there are folks who live in the South. There are folks who live in the north. We don't yet have like a large wave of immigrants coming into the United States. And so we get an industrial revolution. We get a world war. We get immigrants [00:33:00] coming into the United States. And we don't yet in the nation have rules that are structured to prevent them from participating in the ways that we try to prevent them from participating now. And so it's kind of easier to get to citizenship, easier to get to participation in politics. And so a part of the answer about how the Democratic Party in particular becomes the party of the people, as opposed to the party of the slave owners or the party of Southern business interests, [00:33:30] has to do with their decisions to or attempts to win elections. Particularly, I would say at the state and local level and to to speak to the needs of immigrants.

Nick Capodice: Now, I do want to step in here and say that the north and the south are not just one unified thing that's unfair. There were people who opposed slavery in the South, people who supported it in the North. Whites only signs other forms of segregation and schools, businesses, housing. Those existed in the north as well [00:34:00] as the South. And as Kanisha told me, African-American voters are a huge part of the story.

Keneshia Grant: It's not just immigrants who are flooding into the cities. Black people are flooding into the cities. The Great Migration brings about 6.5 million Black people from the south into the north and parties on the ground. Local party leaders, mayors, aldermen, governors have to contend with how they might get this bloc of voters to support them as well, which makes them [00:34:30] take kind of steps toward civil rights that they might not otherwise take.

Nick Capodice: And then we have the Great Depression. In the 1930, President Franklin Delano Roosevelt and his party, the Democrats, said, people are suffering. We need to do something. And what they did was the New Deal; relief reform, recovery.

Archival: This is more than a political campaign. It is a call to arms.

Nick Capodice: What this did was further [00:35:00] cement the notion that the Democratic Party is the party of big government spending on domestic programs and social welfare programs. But the civil rights movement that initially was more allied by geography than by party, almost 100% of Northern Democrats in Congress supported the Civil Rights Act of 1964, but so too did 85% of Northern Republicans. Just 9% of Southern Dems and zero Southern Republicans supported it in Congress. So here's Paddy Riley. He's a professor of [00:35:30] history and humanities at Reed College.

Paddy Riley: But I mean, I think the key thing is that the Democratic Party has it's no longer become possible for southern white supremacists to remain in the party because the because the national party has moved so hard on civil rights. I mean, that's Johnson's Lyndon Johnson's famous line. We lost the South for a generation. I mean, it turns out to be true, a generation and more at this point. So I think effectively the South kind of becomes up for grabs because they're [00:36:00] not going to remain in the Democratic Party. So is someone going to capitalize on them and the Republicans do. I mean, that's just what happens.

Hannah McCarthy: I don't want to sound cynical here. Go ahead. It just kind of sounds like a big part of the reason that the Democrats completely reversed their positions on just about everything. Was not purely because of ideals, but to court voters.

Keneshia Grant: Well, I mean, I'm a political scientist, so I think everything is about [00:36:30] political strategy, political expediency. But yes, I think that one of the kind of biggest, broadest ways of understanding party history is that parties are trying to, one, maintain themselves and then parties as groups who are willing to court coalitions in order to keep or maintain power. Black people are here. They want to have some kind of intervention on civil rights. We're not opposed to that. That seems like it could be okay for us. We [00:37:00] think that they would help us win these local and state elections. We think that because they live in these states with large electoral college votes, they could help us win the presidential election. Let's test out a coalition between Black people and the Democratic Party. So it's the same kind of thing. Parties kind of moving and shape shifting as they encounter groups so that they can maintain dominance.

Hannah McCarthy: So thinking [00:37:30] about like the party today versus the party, then there's a lot of arguing going on on social media about the problematic history of both parties. Right. And I'm just wondering, like, given how different the parties are today from how they were at their genesis, is that even fair to do? Yeah.

Nick Capodice: People taking the Democratic Party to task for being the party of the KKK. I asked Paddy about that specifically that accusation.

Paddy Riley: In some sense, it seems like it has power, partly because maybe we [00:38:00] are just not open in public enough about just how deep and powerful the history of white supremacy is in the United States. You know, it shouldn't be possible for us to continue to romanticize the past. So, you know, those accusations seem to have power just because we need to be more open.

Nick Capodice: So finally, with all that history under our belt, I asked Keneshia about the party going forward, if she thinks there might be another realignment. [00:38:30]

Keneshia Grant: Oh, the Democratic Party is a big tent party. Keep these coalitions in mind. The Democratic Party has to please immigrants, Black people, gay people, progressive white people. Like they just just business interests. For some people, like people, there's just so many groups of people they have to be worried about. When you think about the Democratic Party or any party, particularly in a national election, they have to get in a room and fight it out. [00:39:00] A party platform is only so long and, you know, not everybody's going to read it, but it matters a lot to the party and it matters a lot to the messaging of the party. And so how do I say I really care about urban development and I really don't like displacement of people as a result of gentrification. In some instances, that stuff is going to be in conflict. And so the Democratic Party has this difficult road to travel because they have to [00:39:30] please all these different groups of people and these different groups of people have different interests.

Nick Capodice: So the Democratic Party has come a long way, changing names, switching positions on the way to the blue party we think of today. And that's the thing. These parties are always changing. So it's really hard to say what a Democrat is because there's not one answer and it depends on a ton of other things. Well, we did it, Hannah. We [00:40:00] laid down some historical truths. Yep. You think it'll help anybody?

Hannah McCarthy: I think knowing where someone's from and what bananas stuff happened in their family and community over the years never hurts. So basically, yeah, I think we solved potentially destructive partisanship.

Speaker10: You're dreaming, McCarthy.

Nick Capodice: Regardless, this episode was produced by me. Nick Capodice with you. Hannah McCarthy. [00:40:30] Thank you. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer.

Hannah McCarthy: Music in this episode by Cambo, Bio Unit, Audio Hertz, Chris Zabriskie, Chad Crouch, ProletR Blue Dot Sessions, Dyalla, The Grand Affair, and Reed Mathis.

Nick Capodice: Okay, right. Maybe we can't solve things here at Civics 101, but if you believe in the power of information, we do have that to give to you and you can help empower us to give you that empowerment by making a donation to the show. Every contribution helps. [00:41:00] It means the world to us. We're public radio and that is literally the only way we can keep the lights on. With the help of the public, if you're in a position to contribute, you can do that right now at our website, civics101podcast.org.

Hannah McCarthy: Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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Civics Education 2: When the Curriculum is Against the Law

Today is the second part in our series about the state of civic education in the US. We talk about how teachers choose what to teach, so-called "divisive concepts laws," and how we can approach disagreements without falling prey to "division actors."

This episode features 

 

Click here to see a map of all the states that have passed legislation limiting what teachers can say regarding race, sex, gender, etc. 

Click here to see the Interactive Roadmap by Educating for American Democracy.

And while we're throwing out links, click here to support our show, it means the world to us. 




Transcript

c101-ed2.mp3

Archival: Anti-racism will not be taught in Virginia schools. The House of Representatives voted 65 to 32 to prohibit teachers from compelling students to learn a list of 11 concepts that deal with race, sex or religion.

Archival: Conservative uproar over critical race theory, which isn't taught in elementary or high school classrooms and still want it. Students actually drove more than four hours from Savannah to speak out against a divisive concepts bill that's moving through the legislature here [00:00:30] today. They're saying they're being silenced.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And this is part two in our two part series about civics and social studies education in the US. Part one for those who haven't listened, was about the history of teaching history in the US. The attempts and failures to establish a nationwide civics or social studies curriculum, and the reasons why so few federal dollars go toward civics. Today we are [00:01:00] going to look at what's actually happening in classrooms through a teacher who is also a department chair. So she is helping make those curricular decisions. And we're also going to do a deep dive into so-called divisive concepts laws.

Hannah McCarthy: Okay. But first, Nick, in the last episode, you told us that by the end of this episode you would have a better understanding of how we are doing civics wise. Have you indeed come to a conclusion on the current state of civic education? [00:01:30]

Nick Capodice: Sort of.

Louise Dube: Well, the current state of civic education is vastly underfunded and underperformed and more importantly, narrow.

Nick Capodice: This is Louise Dube. She is the executive director of iCivics. Icivics is the premier nonprofit civic education resource provider in the country. We here at Civics 101 love them deeply, unabashedly.

Louise Dube: And it's really important to us who care about keeping this [00:02:00] nation together, that we talk more and engage more. The devil, if there is one, is division actors, shall we call them that, who are using our division to fuel them into a situation in which we can't we don't know what the truth is. We can't tell. We believe these things. We have no evidence for them. And yet and we are being used by these kinds of actors for their own purposes.

Hannah McCarthy: When Louise says division actors. [00:02:30] Who is she speaking about specifically?

Nick Capodice: I think it's similar to what Danielle Allen in the last episode referred to, as she put it, conflict entrepreneurs. These are people or organizations that gain power from stoking division. And neither Danielle nor Louise named people or organizations specifically. But I'll name one that I see as such. Moms for Liberty, which is recently designated as an extremist group by the Southern Poverty Law Center. [00:03:00] This is a group that shows up at school board meetings, sometimes alongside hate groups like the Proud Boys to interrupt to sow discord. One teachers union president in Florida said, quote, I can be sitting in a meeting minding my own business, and they turn around and scream at me that I am a commie and teachers want to see all kids fail, end quote.

Louise Dube: And the reality is, if you were to be able to engage in more conversations at the community level and rebuild, you would find a great deal [00:03:30] more agreement. And I am just... But we're going to be fighting this for quite some time. This is not a movement that makes the headlines. It's not one that gets the media's interest other than you guys. But it's it's a story that needs to be told because this is not theoretical anymore, right, for us. People are speaking directly about breaking up the country. The country is strong because we're together. And [00:04:00] if we let that happen, so engage with people you don't know or you don't you don't agree with because frankly, I think you'll be able to get through it. And, you know, these may make for very difficult conversation, but but at the end of it, we'll all be stronger together.

Hannah McCarthy: So Louise is encouraging civil conversation, encouraging unity versus divisiveness. This might be a good time to talk about those things that are called, quote, divisive [00:04:30] concepts laws.

Nick Capodice: I think you're right, Hannah.

Hannah McCarthy: What are they?

Nick Capodice: So, real quick, before we get into them, we got to talk about the name first. These laws bill themselves as divisive concepts laws, and you're going to hear me and our next guest refer to them as such. But again, that is the language used by the people who write these laws. And when we use that language, we reinforce it, we normalize it. The concepts in these laws, which they might consider divisive, are things you and I might not. Hannah We talk about these [00:05:00] things in 90% of our episodes. So listener, as it is an audio format we are working with here. Please imagine I'm making air quotes around divisive concepts every time I or my guest say it.

Justin Reich: Divisive concepts laws have been introduced in almost every state. They have been passed. In some states they are a range of laws, so there's not one type.

Nick Capodice: This is Justin Reich. Now, [00:05:30] first, full disclosure. Absolutely. Coincidentally, Justin was a friend and fellow pinball obsessive of mine in high school, specifically the game Grand Lizard. But more importantly for today, he is the director of the MIT Teaching Systems Lab, and he's the host of the Teach Lab Podcast. It's a show where he talks to teachers about these laws.

Justin Reich: They're not well defined. This is a key feature of these laws, is that they ban a bunch of things, teachers from doing things [00:06:00] without specifying what those things are. There are different levels of specification, so some laws very specifically say something like you cannot teach a child that they are responsible for historical events because of their race or that they should feel guilty for events that were perpetrated by their race. I think the law is specifically thinking about white children here, although it doesn't specify white children.

Hannah McCarthy: Now, Justin said these laws have [00:06:30] been introduced in almost every state. But how many states exactly have signed them into law?

Nick Capodice: As of this recording, August 2023, 18 states have imposed bans or restrictions. And while a lot of them share language because this is the sort of legislation that gets copied and pasted from other states, you really have to look at it on a state by state level. I'm going to put a link in the show notes to a website that's got all the laws on one page. Check it out. But one thing I want to make sure to note [00:07:00] here, Justin is not opposed to interaction between legislatures and teachers. Teachers are state employees.

Justin Reich: If legislatures get together and tell teachers, here's a specific thing that you cannot tell children, they should be able to do that. That's how we regulate teacher speech. The problem, though, is that children, people who study the history of this country will feel guilty about things that their ancestors did. That [00:07:30] is a that is a normal feeling. That is a feeling that people have. And so where it becomes more complicated is to say, well, not only can you not say that specific line, but you cannot teach things that make children feel that way. Well, if you teach things that might make people feel uncomfortable or feel guilt, you are removing a huge swath of what we study in history. Moreover, there are other laws and regulations that require teaching topics that [00:08:00] are related to that.

Nick Capodice: One of the biggest problems Justin told me about is contradiction. So every state has requirements about what has to be taught. So what do you do when there's something you have to teach by law and at the same time, by law it is restricted.

Justin Reich: So a teacher who's in a state that has a divisive concept law, they might have a divisive concept laws which says something along the lines of you can't teach things that make children feel guilty because of their race. You are also required [00:08:30] to teach the Trail of Tears and the civil rights movement and the Tulsa Race massacre and these other kinds of events where those feelings might emerge. So now teachers are in this position where they are faced with both contradictory guidance and the divisive concept laws are ambiguous. Another thing that shows up in these divisive concept laws is some kind of riff on the what has been colloquially called Don't say gay. You know, in Florida [00:09:00] passed the first of these laws, which originally said you cannot discuss topics related to sexual orientation and gender in I think it was kindergarten through fourth grade. And then you can only discuss them in developmentally appropriate ways afterwards.

Archival: Florida's controversial legislation, dubbed by critics as the Don't Say gay bill and gaining national attention has been sent to Governor Ron DeSantis to sign. The governor already signaling he supports it.

Justin Reich: You know, lots of ambiguities immediately showed up. There was a [00:09:30] state legislator who was quizzing a colleague who was introducing one of these laws and said, well, can we you know, can you introduce Martha Washington lady?

Archival: You mentioned George Washington, who is Martha Washington.

Archival: His wife.

Archival: Under your bill, how could you mention that in a classroom?

Archival: So to me, that's not sexual orientation,

Archival: Really.

Justin Reich: And part of the problem is, is that the actual point [00:10:00] of these laws is to prevent people talking about homosexual couples, to talk about gender identities, which are not historically, you know, recognized straight male and female identities. But the law doesn't say that specifically.

Hannah McCarthy: To my understanding, most of these laws have been passed fairly recently. Do we know if there have been any repercussions yet, like teachers who faced that contradiction and were punished as a result?

Nick Capodice: Absolutely. Many [00:10:30]. Justin told me about one in particular, a social studies teacher in Ohio.

Justin Reich: Who looks at the Ohio State standards and says, I'm supposed to teach about civil rights, goes to the Ohio model curriculum, where it says, One of the ways that you can teach about civil rights is about Stonewall and the gay liberation movement. And he goes, That's great. I'm gay. Some of my kids are gay. Like like I'm in, let's do this. So he he builds this whole unit, he builds it in, sort of aligned with the way that he's taught other kind of controversial topics [00:11:00] before. And he runs it by his mentor teacher. He runs it by his school principal. He teaches it for three days. It seems to be going really well, really liking it. And then a parent complains and a cascading series of events gets him. He's told to stop teaching the unit. He's administratively separated from the school and then he's sent to teach in another school. So basically he loses a job that he had. He's just a guy who's very carefully [00:11:30] designing this unit like like he can he can just talk in such compelling ways about like, here are all of the guidelines that I followed in all the steps that I took to be able to teach this in a way that, you know, honors my commitment to what Ohio regulations and law has to say about what I'm required to teach and recognizes that there's sort of sensitivities in my community around these kinds of issues and, you know, and wanting to make sure [00:12:00] like, you know, that that that it's teaching hard history. That's not indoctrination. All the kinds of things that good social studies teachers do. But doing it just like really kind of to the nth degree.

Nick Capodice: And to be clear here, once again, Justin does not think that parents should be excluded from the dialog about what their kids learn. It's a compromise. That's how we've always done it. And parents statistically like what teachers are doing. Justin said about 80% of parents are satisfied with how their kids are being taught, which [00:12:30] is a massive majority. It's some of that minority, the 20% plus outside groups who don't actually have children in the schools and districts and states where they're pushing these bills, who are driving these changes.

Justin Reich: Every community has people with extreme views. You know, views are very different from their neighbors. We've known that for years. But one of the things public schools have to do is create a curriculum that works for as many students as possible. There's no way to do that. There's some of our neighbors are [00:13:00] always going to have really strong opinions about things. We call those extreme views. Historically, the way we've dealt with that is we've said, okay, parent, if you don't want your student learning about this topic, you can have your student not participate in that learning experience. This happens pretty commonly in things related to health and sex ed. Parents say, I don't like the way that the school the state has You teaching that topic. As a parent, I have different values. I don't want my kid participating in that. It happened some in English language arts and in social [00:13:30] studies. I don't want my student watching this movie. I don't want my student going on this field trip. I don't want my student reading that book. I think that's a good, healthy way of negotiating some of these issues we've got, you know, that student from that family is participating in most of the public school experience. They pick a few things that they're not participating in. They're still, you know, having the kind of civic community building experience that public schools offer. What these divisive concepts and other related laws are doing is trying to change that fundamental [00:14:00] ground rule and saying that if a parent objects to a piece of content, it has to be removed from the school system that none of the children can have access to, that that that book has to be banned, that they can't go on that field trip, that teachers can't teach about that topic to everyone.

Nick Capodice: We are going to explore how teachers are taking curriculum laws, students, parents, etcetera, everything into consideration when they decide what to teach. But first, we got to take a quick break.

Hannah McCarthy: And before that break, if you [00:14:30] are the kind of person who wants to compare and contrast the wording in dozens of divisive concepts laws, you will like our free newsletter, extra credit. It comes out every two weeks. Nick and I never know what we're going to explore, but never always. But it's always fun. And you can sign up at our website civics101podcast.org.

Hannah McCarthy: You're listening to Civics 101. This is part two of our two part series exploring civics and social studies education in the United States. [00:15:00] So, Nick, we've looked at what gets taught in the classroom from the top down angle. State legislatures dictating what should and should not be taught. Now, I want to know how teachers take all of that, walk into a classroom and say, this is what we are learning today.

Nick Capodice: Yeah, I honestly don't know if I will ever understand how they do it. Hannah We have met so many teachers in the course of making this show and I never fail to be amazed by their efforts. But I'm going to give you one example. This is [00:15:30] CherylAnne Amendola. Hannah, you and I always look our guests up before we interview them. But in this instance, I was surprised. She looked me up.

CherylAnne Amendola: I was I was just like reading your bio. Just find a little more about you.

CherylAnne Amendola: And you love 1776 as much as I do. Open up a window.

Hannah McCarthy: The movie is inescapable.

Nick Capodice: If I had a switch, Hannah, that could turn off my love for the musical. 1776. I'd flip it, but I don't have that switch, do I? Anyways, CherylAnne teaches middle school history [00:16:00] and is the Middle School History department chair at Montclair Kimberley Academy. She's also the host of her own podcast, Teaching History Her Way.

Hannah McCarthy: So if CherylAnne is the department chair, does that mean that she decides what is being taught?

CherylAnne Amendola: Well, it really depends on the school. So in some schools, you have a curriculum coordinator who will be for social studies and will work with all the schools in the district. So I've seen public schools that work in that way. We have a curriculum coordinator, but then [00:16:30] we also have our department chairs at each level. But what's really wonderful about my school and there are a lot of schools that are like this too, is that as the department chair, I manage things, but I'm working with a team of teachers who puts the curriculum together. So all the curricular decisions that we make are made as a team, which is really wonderful because we're all really different. So we get a lot of different perspectives and we wrestle with a lot of things. So one of the things that [00:17:00] I really wish that people know or knew is that teachers are professionals who work together. We know what we're doing, and we pool our knowledge to make it so that the kids in our classrooms have the best experience that they can have based on what we know and what we know about them. Because a lot of times the decisions are made thinking about the population that's in the building. So it's never arbitrary. Let's start there.

Nick Capodice: As we talked about in the first episode, every state has social studies standards and CherylAnne's State New Jersey, the ninth [00:17:30] to 12th grade standards are from 2020. There are 51 pages in total. Interestingly, they use a diagram of a house as a metaphor for how students should learn. Really? Yeah. It's like the mission is the foundation. The practices are the roof performance expectations are the studs. Et cetera. And CherylAnne said, Yes, the state has standards all lesson plans she makes have standards on them. But that is not the most important consideration ever, number one.

CherylAnne Amendola: First and foremost, [00:18:00] we're thinking about our students. So we're not just picking up a random textbook pointing to a page and saying we're going to have them read this. A lot that goes into it is who is sitting in my classroom? What is the socioeconomic background of the students sitting in my classroom? What is the racial and ethnic identity of the students that are sitting in my classroom? What are the gender identities of the students that are in my classroom? What are the sexual identities of the students that are in my classroom? If they know at the point that [00:18:30] we're teaching, what do the families in my classroom look like? Sound like feel like? What is the geographic area that we're living in? Because that makes a really big difference. Even in New Jersey, we have rural, suburban, urban. So figuring out what these students need to know, want to know is and their experience in us being able to teach it to them. So the vehicle that we use, it's not even just the material, but then it's also how do we do? It depends a lot on those factors because we need the [00:19:00] students to understand it. We also want them to buy in. We want them to learn it. We want it to relate to them. So there are so many factors that go into those curricular decisions. But first and foremost, we're thinking about the kids that are in our room.

Hannah McCarthy: What does CherylAnne think the relationship between parents and teachers should look like?

Nick Capodice: CherylAnne made it abundantly clear to me she considers herself very fortunate in this regard. She said the parents of her students are enormously supportive of her work. But she said all teachers [00:19:30] out there need trust.

CherylAnne Amendola: This is why we go to school. We went to school and we continue to go to professional development and learn all kinds of new things. I mean, believe it or not, history changes, but depending on what kinds of new new documents are found to be analyzed. So and. Pedagogy changes. There are different methods that, as educational researchers continue to learn about how kids learn, we adapt. How we teach. The way I teach now is not the same as the way I taught 17 [00:20:00] years ago. So we need to be trusted as professionals to do our job and that we know what your kids need.

Nick Capodice: And it's easy to imagine that a teacher can be told what to say or not to say, but they'll just go and do their job in their classroom and not worry about it. But it doesn't work that way. Consequences can be very real. So I asked her, what is the feeling right now in the US, in the teacher community around all this?

CherylAnne Amendola: I think that in [00:20:30] some of my colleagues there, there's a little bit or a lot of fear, fear for their jobs, fear, fear of intimidation. There are very loud constituents at school board meetings who may not necessarily be the largest number, but they are the loudest that make our may make many teachers decisions more difficult. I have always been screaming from the rooftops that history matters. Everybody's noticing that history matters, which on the one hand is awesome. History [00:21:00] and civics do matter. Bring it in, teach it all. But on the other hand, there are huge disagreements about whose history needs to be taught. And really what the answer is, is everybody's.

Hannah McCarthy: You know that thing that Rush Limbaugh said? You mentioned it in the first episode. He, of course, is the right wing radio host who is furious at the proposed national social studies standards in the 1990s. What was that exact line again?

Nick Capodice: History is real simple. You know [00:21:30] what history is? It's what happened.

Hannah McCarthy: Basically, it sounds like people are still having the same argument that Rush Limbaugh was all riled up about in the 1990s. Yeah.

Nick Capodice: I swear I wasn't going to bring it up. You did hear about the Romeo and Juliet thing, right?

Hannah McCarthy: I have a really hard time with this. I can't. It's, like, really upsetting.

Nick Capodice: Well, it's part of this. It's tangential, but it's part of it. And because it's not civics and we were both in the play, we can have an opinion about this. Hannah had the better part, by the way. She was Benvolio and I was [00:22:00] Abra.

Hannah McCarthy: Abra is not the worst part.

Nick Capodice: Yeah.

Abra: Do you bite your thumb at us?

Hannah McCarthy: Anyway, for those who hadn't heard, a school district in Florida is only allowing excerpts of Shakespeare's plays to be studied, not the full text due to a lot of innuendo. It is true and implied sexual content.

Nick Capodice: Thank you for letting me bring this seemingly unrelated thing up, Hannah. But it is an example of what Justin was talking about because eight Shakespeare plays are suggested in the Florida [00:22:30] State standards and at the same time censored by this House bill. Hb 1069. But away from the Bard and back to civic education, I asked Louise Dube, the executive director from iCivics, How do we bridge that gap? So if one person thinks history should be just a recitation of dates and famous people and not a discussion of hard topics like race, gender inequality, et cetera. And you got another person who says the opposite. What [00:23:00] do we do? How do we come to an agreement? Here's what she said.

Louise Dube: I would just say, you know, a lot of people have kids, right? Go talk to your kid and and just ramble off a set of dates, see how it goes. Just try it and see, you know, are they going to remember this tomorrow? Probably not. Right? If you talk to historians, history is rarely set. And [00:23:30] we need to come to that more nuanced view of what history is. And when people say, I just want the facts, I say, okay, which facts do you want? The ones from my right pocket or the one from my left pocket? I don't know. There are many, many, many facts. Oftentimes, those are told by one set of people and the other facts are told by the other set of people. We need to engage in thinking like a historian and try to uncover documentary [00:24:00] evidence, but also multiple perspectives and a narrative that we need to uncover. That is why we created educating for American democracy as a set of questions.

Nick Capodice: Educating for American democracy is a cross-partisan initiative, and it's headed by Louise and Danielle Allen and ten others. These are these are among the top civic education minds in the country. So they have created, with the help of hundreds of scholars and teachers a framework. It's the EAD roadmap. [00:24:30] And this is not a national standard for civics education. This is something that states school districts, individual teachers can adopt. And it is about inquiry and discussion. It's not what year was the 12th Amendment ratified, it's centered on driving questions.

Louise Dube: Those are the only things I remember from my from my own education. When people asked me to take ownership of my own learning, enter into simulation, try it out, work with other colleagues to try to figure out what happened [00:25:00] here and create something out of this, an art project or something. Right. And so that's the you try it with your kids. I don't know. That's all I have to say.

Hannah McCarthy: Nick, do you have a I don't know, a final thought for all of this. I know civic education is underfunded, but if this were a State of the Union address, you're standing up there and you say, My fellow Americans, the state [00:25:30] of civics education is blank.

Nick Capodice: Okay. This is just my opinion as a co-host of a civics podcast. So, you know, take it with whatever grains of salt you want. So if you look at the most recent nation's report card, that is a study done each year by the National Assessment of Educational Progress. You could say the state of civics education in America is declining. Only 22% of eighth graders tested were considered proficient in civics. [00:26:00] This is the first significant decline since they first did this assessment in 1998. And you could blame Covid for this or lack of funding or budgetary woes. But these are eighth graders who are tested. And you might also consider that less than half of American students take any civics classes whatsoever in the K through eighth grade years. Now, if you look at the situation that many teachers are in, where curriculum laws tell you, you got to teach one thing and divisive [00:26:30] concepts, laws tell you not to. You could say the state of civics education is dangerous. Or I could, as we often do in the podcast business, do what we call ending the episode on a shrug. And we could just say the state of civics education is complicated. But I think knowing what Danielle Allen said in the last episode about federal civics funding increasing tenfold in the last year, and having had [00:27:00] teachers come up to her table at social studies conferences and talking about what their successes and challenges are. Here is my adjective. The state of civics education is hopeful. More and more states are adding civics requirements. People notice it when these assessments come out and they care. And ultimately, there is no community in the United States in which I have more faith than teachers. They are the plugged in, [00:27:30] tireless, passionate, caring people keeping education robust. No matter what. So, yeah, hopeful. And I hope I'm right.

La la la la.

Nick Capodice: Oh well, that is a wrap for this episode, but I doubt it is the end of [00:28:00] us talking about civics education because, you know, that's where it's us. We're here. I do want to give a massive special thank you to Danielle Allen and Louise Dubay and all the folks working at Educating for American Democracy. Check them out. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you always. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. music in this episode by Jules Gaia, Dusty Decks, the shivers, Stationary Sign, Guustavv, Emily Sprague, Lobo Loco, Blue Dot Sessions, Asura, and the incomparable Chris Zabriskie. Civics [00:28:30] 101 is a production of NHPR New Hampshire Public Radio.


 
 

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What Is (or Was) Affirmative Action?

In June of 2023 the Supreme Court determined that affirmative action -- a practice that had been common in some colleges and universities since the 1960s -- was a violation of the Equal Protections clause of the 14th Amendment. So what, exactly, are these schools not allowed to do anymore? What does it have to do with race and diversity? How was it supposed to work... and did it?

Margaret M. Chin, professor of sociology at Hunter College, is our guide to this week's episode. 


Transcript

Hannah McCarthy: [00:00:02] In 1963, President John F Kennedy went on television and said something out loud, albeit in the language of his era that ostensibly most Americans already knew.

John F. Kennedy: [00:00:15] It ought to be possible, in short, for every American to enjoy the privileges of being American without regard to his race or his color. In short, every American ought to have the right to be treated as he would wish to be [00:00:30] treated as one would wish his children to be treated. But this is not the case.

Hannah McCarthy: [00:00:36] That Black Americans were not given access to the institutions that allowed others to achieve a certain kind of success. And he backed it up with stats.

John F. Kennedy: [00:00:46] The Negro baby born in America today, regardless of the section of the state in which he is born, has about one half as much chance of completing a high school as a white baby born in the same place [00:01:00] on the same day, one third as much chance of completing college, one third as much chance of becoming a professional man, twice as much chance of becoming unemployed about one seventh as much chance of earning $10,000 a year. A life expectancy, which is seven years shorter, and the prospects of earning only half as much.

Nick Capodice: [00:01:26] Pretty glaring, powerful stats, right?

Hannah McCarthy: [00:01:29] Really though, [00:01:30] they probably didn't come as a shock to most people. Black Americans are discriminated against. This results in inequity in many spheres of life.

Nick Capodice: [00:01:39] And JFK was saying that America needs to take steps to address that.

Hannah McCarthy: [00:01:43] Yeah. Like not passively allowing people of color into those spheres because it wasn't going to work like that. In 1961, Kennedy signed an executive order to reinforce this when it came to employment on the part of federal contractors. He ordered them to [00:02:00] take, quote, affirmative action to ensure that people were, quote, hired and treated during employment without regard to their race.

Nick Capodice: [00:02:08] So in 1961, Kennedy is giving speeches that make it explicitly clear that action needs to be taken to change the face of employment and mobility in America. Is this the first time that we hear those words, affirmative action?

Hannah McCarthy: [00:02:22] Actually, no. Affirmative action, at least as used in federal policy, first cropped up in the National [00:02:30] Labor Relations Act in 1935. And back then, it had nothing to do with race.

Nick Capodice: [00:02:37] Wait, is this the act that lets employees form unions?

Hannah McCarthy: [00:02:41] That's the one. And dictates how that's going to work. And by the way, some of those unions ended up doing a ton of work for civil rights in America, but many of them were segregationist, racist, and sometimes had explicit policies that ensured whites only hiring standards. Funnily enough, affirmative action [00:03:00] was initially the term for correcting unfair labor practices, just not the unfair labor practice of refusing to hire people of color.

Nick Capodice: [00:03:08] But then Kennedy made it very much about that.

Hannah McCarthy: [00:03:11] Very much. And I'm not going to bury the lede here. We are talking about affirmative action, in part because in June 2023, the Supreme Court banned it nearly entirely in higher education institutions. And we will get to that. But to get there, we need to understand [00:03:30] why we had affirmative action to begin with. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:03:35] I'm Nick Capodice.

Hannah McCarthy: [00:03:36] And this is Margaret Chin, professor of sociology at Hunter College.

Margaret M. Chin: [00:03:41] What I believe the federal government was intending to do was for affirmative action to do more than just, you know, bar or stop racial discrimination. Rather, it was supposed to create an affirmative action to kind of level the playing field, you know, by addressing the effects of hundreds of years [00:04:00] of systemic racial discrimination and oppression in the United States.

Hannah McCarthy: [00:04:10] This is something that President Lyndon Johnson affirmed just a few years later in 1965. Here he is giving the commencement address at Howard University's 1965 graduation.

Lyndon Johnson: [00:04:20] You do not take a person who for years has been hobbled by chains and liberate him, bringing [00:04:30] up to the starting line of a race and then say you are free to compete with all the others and still justly believe that you have been completely fair. Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. And [00:05:00] this is the next and the more profound stage of the battle for civil rights.

Nick Capodice: [00:05:07] All right. So the idea here is you can't just say here are all the privileges of American life. We won't actively keep you from them. Now because of centuries of abuse, enslavement, discrimination and barriers to entry. And also, we should mention here, Hannah, LBJ was racist. Lots of civil rights policy and lots of racist personal conduct. [00:05:30]

Hannah McCarthy: [00:05:30] Yeah. LBJ was a civil rights leader and LBJ was a racist. Complicated man. So President Johnson took Kennedy's affirmative action policy one step further with executive order 11246. It prohibited federal contractors from discrimination in hiring when it came to race, color, religion or national origin. In 1967, they added sex to that list. In 2014, they added sexual orientation and gender identity.

Nick Capodice: [00:05:58] Okay. And Margaret is saying that [00:06:00] affirmative action was not simply an anti-discrimination policy. It was corrective, like it was about acknowledging that the United States was an oppressive place for millions of people.

Hannah McCarthy: [00:06:10] Yeah, And this is important because the Supreme Court is going to change that corrective part of it down the line.

Nick Capodice: [00:06:17] Before we go any further, Hannah, can you just sort of explain to me what affirmative action actually means? Like practically speaking?

Hannah McCarthy: [00:06:25] Okay. The idea here is essentially that admitting someone [00:06:30] to a job or later on an educational institution should not be colorblind, as in should not ignore the color of their skin and how that may have affected what they have had access to or been denied in life compared to, say, the white man with the glittering resume reflective of what he has had access to and not been denied. Affirmative action hiring policies were specifically designed to encourage the hiring of people of color. And [00:07:00] at first, Black Americans were a primary focus.

Margaret M. Chin: [00:07:04] When you look at the civil rights movement, including, you know, what happened after civil war and in the Jim Crow laws, you saw the atrocities, right, against the African-American community. So that was really a topmost mind for everybody to address those communities initially.

Nick Capodice: [00:07:23] And JFK mentioned those stats. Those were undisputed truths about what life was like to Black Americans at that time. [00:07:30] Less access to education, employment, health care. Et cetera. So before official affirmative action policy, what did most companies even look like?

Margaret M. Chin: [00:07:41] So before affirmative action, most of these private companies, as well as government employment agencies, companies, had very few, in fact, almost zero people of color of employment. I mean, if you think about everything was [00:08:00] segregated. So that meant that any company basically had very few or zero people of color in any of these organizations. These laws and these policies and ideas didn't come about until the civil rights movement. So only after that and the implementation of affirmative action policies do you begin to see slowly an increase of the numbers of people of color in all of these organizations?

Hannah McCarthy: [00:08:28] And while it was only federally funded [00:08:30] contractors and subcontractors who were actually mandated to do this by executive order, by 1966, companies with more than 100 employees were required to submit annual reports on how many people of color and women they currently had employed. Affirmative action was in the air. There was an understanding, and not just at the federal level, that these policies were important.

Margaret M. Chin: [00:08:56] If we look at the United States, we know [00:09:00] that social mobility is really important. A lot of us still think college or having a decent job. Up is incredibly important for social mobility. We still see race mattering in terms of health and wealth education statistics today in 2023. But if a person, because of any of these programs, if they get to go to a better college, they get a better job, which means a higher income, [00:09:30] which doesn't just support their own family, but in many cases, if they are the first to go to college, it supports not just their children but their siblings family as well. Sometimes it buys them health insurance to support their children, which means better health outcomes. And so as it is, we know of communities, of people who have a difficult time moving out of better living conditions [00:10:00] without access to these things. So it makes a huge difference.

Nick Capodice: [00:10:06] At some point in this, affirmative action was something that other companies were doing as well, like companies that had nothing to do with the federal government and schools.

Hannah McCarthy: [00:10:15] That's right. An affirmative action in schools, specifically universities and colleges, which again, is mostly banned at this point. It meaningfully started in the late 1960s.

Nick Capodice: [00:10:27] And this is something they did on their own. The government [00:10:30] didn't mandate this.

Hannah McCarthy: [00:10:31] Nope. This was something that higher education institutions tended to feel like they had the responsibility to do, which had a lot to do with the fact that there was also a ton of social pressure in the form of protests, often right on campus, to join the fight for multiracial democracy. Colleges and universities decided to create their own affirmative action policies. And by the way, it worked. Admissions of Black students doubled in a single year, [00:11:00] according to data from places like Columbia and Harvard universities.

Nick Capodice: [00:11:04] But can you just give me an example of what affirmative action actually means in practice? Like, what is the action?

Hannah McCarthy: [00:11:11] This is a great question. When the federal government mandated that federal contractors take affirmative action, it didn't actually say what that action was. It was just like, take it, take action that results in diversity. And so when colleges and universities implemented their own racial [00:11:30] diversity, affirmative action policies, a lot of them set quotas.

Nick Capodice: [00:11:35] Racial quotas.

Hannah McCarthy: [00:11:36] Racial quotas. Yeah. So like we will reserve X number of seats for Black Americans, X number of seats for Asian Americans. Et cetera. Economically and or educationally disadvantaged might be a part of that, too. The Supreme Court got rid of the quota thing with a case called Regents of the University of California v Bakke. That was in 1978. [00:12:00] Alan Bakke was a white man who applied to UC Davis Medical School and did not get in.

Margaret M. Chin: [00:12:05] And I guess in their medical school system, they actually used some kind of a quota to look at the number of students getting into their medical school. So Bakke pushed back saying that, Hey, I didn't get in because there's a quota allowing Black students to get in. And it's therefore reverse discrimination against me. So the ruling in the Supreme Court at that time [00:12:30] was that race based admissions was still allowed, but you can't use quotas.

Hannah McCarthy: [00:12:36] UC Davis said, We are doing this to rectify past discrimination in medical school admissions. Correct. Current discrimination, increase the number of doctors and underserved communities and quote, promote the education benefits that flow from an ethnically diverse student body.

Nick Capodice: [00:12:52] And the Supreme Court said, well, not using quotas, you're not, but you can still factor race into admissions if you want.

Hannah McCarthy: [00:12:58] Really importantly, the [00:13:00] deciding vote was from Justice Lewis Powell, who said, okay, go ahead and keep race as a consideration, but you cannot set quotas. And by the way, and this is Powell speaking, I'm rejecting both your rectifying past discrimination argument and the argument for increasing providers and underserved communities.

Nick Capodice: [00:13:19] So which part of the argument did he agree with?

Hannah McCarthy: [00:13:22] He found a compelling interest, meaning a factor that often lets a law or policy pass muster in the Supreme Court in the diverse student [00:13:30] body argument.

Margaret M. Chin: [00:13:31] What they basically said was that, you know, diversity in terms of an educational benefit, diversity, the use of race or ethnicity in an educational setting was still very valid and still very, very important. So that was the first ruling that basically said we don't look back. We don't look back at all at systemic discrimination. But we want to do is look forward and to look at how diversity now will help [00:14:00] our students and help our communities and help our employment be effective for whatever they do. It increases creativity, it increases overall better learning and working environment.

Nick Capodice: [00:14:11] So starting in the 70s, addressing the ills of the past was no longer grounds for affirmative action. And so present day affirmative action, I mean, until it was banned by the court, couldn't use quotas and it couldn't justify itself with what is basically the reason JFK and LBJ established it to [00:14:30] begin with.

Hannah McCarthy: [00:14:30] Yeah. Instead, it became a part of what any of the colleges or universities that used affirmative action probably would have called an holistic process. They look at grades, test scores, whether you're an outstanding flutist, how many volunteer opportunities you engaged in, how effervescent you are as a person. That is a real thing. Whether you started a successful company at the age of 12, your artistic prowess, whether your dad and your dad's dad and [00:15:00] your dad's dad's dad went there because, by the way, affirmative action for wealth and connection very much remains a thing. And race because of diversity and only because of diversity. If you are abiding by the court. But as of 2023, not anymore.

Nick Capodice: [00:15:16] So affirmative action is, I should say, was about diversity and simply that. And the court at one point agreed using race as a factor was an acceptable way to ensure racial diversity on campus. But [00:15:30] then the court decided that is no longer acceptable. So, Hannah, do you have any idea, like what happens when you can't use race as an admissions factor anymore?

Hannah McCarthy: [00:15:38] I kind of do. And we'll get to that after the break.

Nick Capodice: [00:15:45] But before that break, just a reminder that Civics 101 is a listener supported show. If you like what we do, if you like our mission, if you like us, consider making a donation in whatever amount fits your budget. You can do that at our website, civics101podcast.org.

Nick Capodice: [00:16:25] We're [00:16:00] back. You're listening to Civics 101. We are talking about affirmative action, [00:16:30] a hiring policy that was mandated by and for the federal government and then adopted by plenty of other companies and institutions, notably colleges and universities across the country in the 1960s. Also a policy that has been recently banned in higher education by the Supreme Court. And right before the break, Hannah, I was asking you, do we know what happens when you're not allowed to consider race and admissions anymore? And you said we kind of do?

Margaret M. Chin: [00:16:56] I think it was over probably 20 years ago when [00:17:00] they banned affirmative action in California.

Hannah McCarthy: [00:17:02] This is Margaret Chin again, professor of sociology at Hunter College. And it was nearly 30 years ago that Californians voted to end affirmative action in state and public institutions.

Margaret M. Chin: [00:17:14] And what they found was they still haven't been able to bring back the exact numbers of Black and Latino students to the level that it was. So they spent billions of dollars figuring out all kinds of different ways of admitting [00:17:30] students to try to give equal opportunity to the Black students and Latino students, especially at the top tier U.S. schools. They found that at the community colleges, they were able to do that, but not at UC Berkeley, not at UCLA. And they thought that was still of utmost importance to do that. So they're still trying to do it. And so that's a real experiment. I think many of us knew that this could happen at [00:18:00] the elite schools as well once you ban a race as a factor.

Hannah McCarthy: [00:18:04] So a couple of things to note here. When affirmative action was banned in California, population diversity at top tier schools plummeted. And a study found that along with this admissions drop, students of color in California became less likely than white students to go to grad school to earn high salaries, even to graduate college at all. And these schools did try other race neutral tactics [00:18:30] to ensure diversity, but they have not been as successful as affirmative action in increasing population diversity.

Nick Capodice: [00:18:38] So California voted it out. And of course, now it's been banned by the highest court in the land. So, Hannah, how does the American public actually feel about affirmative action? Is there some pretty strong opposition?

Hannah McCarthy: [00:18:52] Yeah, there is. A Pew Research poll found that half of Americans were opposed to taking race and ethnicity into [00:19:00] account in admissions at highly selective schools. White and Asian respondents were significantly more likely to lean opposed than Black and Hispanic, and Republicans were more likely than Democrats to lean opposed. But the court has looked at affirmative action repeatedly over the years and repeatedly affirmed it, albeit in close rulings. Still, in 2003, Justice Sandra Day O'Connor gave us a sense of what was coming.

Sandra Day O'Connor: [00:19:27] It has been 25 years since Justice [00:19:30] Powell first suggested approval of the use of race to further an interest in student body diversity. In the context of higher education, we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interests that we approve today. Justice Ginsburg has filed a concurring opinion.

Nick Capodice: [00:19:53] And so 20 years ago, Justice O'Connor was like, All right, just for now, we'll keep this going. But this isn't going [00:20:00] to last forever, you know, 25 years and it'll all be over.

Hannah McCarthy: [00:20:03] And her prediction came to fruition early.

Nick Capodice: [00:20:06] Yeah, but her prediction is based on, if I'm understanding correctly, the United States no longer needing affirmative action.

Hannah McCarthy: [00:20:13] Yeah. She says that the court agrees that the state in 2003 has a compelling interest to assemble a diverse student body on campus, and that race conscious admissions helped to do that. But the goal of the equal protection clause of the 14th Amendment, according to O'Connor, [00:20:30] is to do away entirely with governmentally imposed discrimination based on race. And then she said this.

Sandra Day O'Connor: [00:20:38] Accordingly, Race conscious admissions policies must be limited in time. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We so we see no reason to exempt race conscious admissions programs from the requirement that all [00:21:00] governmental uses of race must have a logical endpoint. We take the law school at its word that it would like nothing better.

Nick Capodice: [00:21:08] So did the Supreme Court in 2023 decide that affirmative action had reached its logical endpoint?

Margaret M. Chin: [00:21:14] The latest case versus Harvard and SFA versus UNC. They were supposed to decide whether there was discrimination against Asian Americans and white students, whether both of the schools [00:21:30] violated the equal protection clause, the 14th Amendment.

Nick Capodice: [00:21:34] Wait, hold on. That's what they were supposed to decide. This was a case about discrimination against Asian American students.

Hannah McCarthy: [00:21:43] Yeah, that's how they started out.

Nick Capodice: [00:21:45] So is that what they decided, that Asian Americans were discriminated against?

Hannah McCarthy: [00:21:50] Well.

Margaret M. Chin: [00:21:56] Judge Roberts said that both programs lacked [00:22:00] and this is his quotes lacked sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner and involve race, stereotyping and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today.

Nick Capodice: [00:22:19] So the majority decided that using race and admissions is unwarranted and in fact results in stereotyping and negative impacts. Is that what happened [00:22:30] to Asian American students?

Hannah McCarthy: [00:22:31] I'll tell you this. In his opinion, Justice Roberts cited the lower court findings in the case.

Nick Capodice: [00:22:38] As in district and circuit courts, that the case passed through before getting to the Supreme Court.

Hannah McCarthy: [00:22:43] Exactly. And the First Circuit and district courts found no evidence that race conscious admissions harm any racial group. The lower court said affirmative action could stay.

Nick Capodice: [00:22:55] But the Supreme Court said it had to go.

Hannah McCarthy: [00:22:58] It did.

Hannah McCarthy: [00:23:00] So [00:23:00] some of the same stats that the lower courts cited as not being evidence of discrimination against Asian Americans. Roberts seemed to see as evidence of race being used against someone in admissions. And by the way, I did ask Margaret about this. Was there evidence of discrimination against Asian-American students? And she looked into this extensively. I will post her article to our website. But to grossly oversimplify, her answer was no, and [00:23:30] not just no, but that the instigator of this case, a white businessman named Edward Blum, who has long worked against affirmative action and minority voting rights, cites stereotypes and discrimination that, while very real in the Asian American community, are not actually present in Harvard's admissions process, and that regardless, the original lawsuit was seeking relief for Asian American students, and the highest court did not directly [00:24:00] address that in its opinion.

Margaret M. Chin: [00:24:12] A lot of Asian Americans have asked me, so where does this leave us? In this case, we seem to be the face of this case. And I said, yeah, you were the face of this case, except that people didn't address relief for Asian Americans. We all know that, especially after Covid, with the anti-Asian violence, [00:24:30] that there is discrimination. We know that Asian Americans aren't moving up in the corporate ladder as well as they could be. You know, I did studies on that, but that wasn't addressed. And one way to really address it is to look at affirmative action programs as the way they were before June 29th. You know, Asian American students have been doing well under affirmative action at Harvard. They are now up to almost 30% of the [00:25:00] admitted class, and they've been increasing ever since affirmative action was established when I was there, basically. So I think those are two things that need to be addressed and, you know, and to actually see that there are plenty of Asian Americans who actually do support affirmative action as of before June 29th.

Nick Capodice: [00:25:23] So Hannah if this case brought on the part of Asian-American plaintiffs, was not ultimately decided for [00:25:30] or directly on the basis of the claim of those plaintiffs, what was the justification of Roberts's decision?

Hannah McCarthy: [00:25:37] It's important to note that Roberts makes his way to a 14th Amendment equal protection violation by starting with the statutes pertaining to Asian Americans. He went on to cite with Justice O'Connor, said in 2003 that affirmative action should be unnecessary by 2028. Roberts says the Harvard and UNC affirmative action policies lack [00:26:00] a logical end date. He also spends quite a while referencing what Justice Powell said in 1978 that past societal discrimination should not be a factor here, and policies based on it fly in the face of the dream of equality. And very tellingly, I think Roberts says that a benefit provided to some applicants should not be at the expense of others. In other words, he believes that affirmative [00:26:30] action hurts.

Nick Capodice: [00:26:32] So I just have to ask Hannah, who does it help when we eliminate affirmative action? Seems like the sort of Pollyanna idea would be, you know, everyone. But it doesn't sound like that's where we're heading.

Margaret M. Chin: [00:26:50] With regards to these latest cases. Both cases in the lower courts show that if you eliminate it, race conscious admissions [00:27:00] as it existed before June 29th. Right. You would actually decrease the number of Black and Latino students on these campuses. Asian Americans would fall in between. They would increase just a little bit, which makes sense because Asian Americans are a tremendously diverse group. They have some of the people with the highest incomes and some of the very lowest. They have the biggest income gap of any racial group in the United States. [00:27:30] But white students would do the the best. They would gain more spots. That's what the economists in the cases both argued.

Nick Capodice: [00:27:39] You know, it's interesting that Margaret says this, because I know that according to the episode you did on the 14th Amendment, the vast majority of people who won 14th Amendment claims citing equal protection in the past 50 years or so, have been white people. And it kind of sounds like white people will gain the most from this change.

Hannah McCarthy: [00:27:58] It does sound like [00:28:00] that. And to the dissenters in this case, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson The question of whether we need to continue to find ways to explicitly benefit minority groups and access to higher education is not actually a question at all. Sotomayor and Jackson both argue in their dissents that the United States is still segregated, that race is still a determining factor in access to so much and that affirmative action helps [00:28:30] to correct decades of racist segregationist action, especially on the part of elite universities.

Margaret M. Chin: [00:28:39] Judge Sotomayor and Kagan and Jackson, they basically said this is her quote Today, This court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding the court cements a superficial rule [00:29:00] of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.

Hannah McCarthy: [00:29:12] To which, of course, Justice Roberts replies, quote, Justice Powell, who provided the fifth vote and controlling opinion in Bakke, firmly rejected the notion that societal discrimination constituted a compelling interest.

Nick Capodice: [00:29:25] Compelling interest. Again, that legal term of art. That means a reason the court should weigh in on this [00:29:30] in the first place.

Hannah McCarthy: [00:29:31] Yeah, and that basically the court hasn't operated on the societal discrimination question for decades. And one more thing. There is one case in which Roberts says that race conscious admissions can remain in higher ed one.

Margaret M. Chin: [00:29:47] One of the other carve outs in this particular case that is interesting, which also shows that the court's, of course, does believe that race still matters is that Judge [00:30:00] Roberts also gave a carve out to the military academies. He basically said that the military academies are exempt. He says that no military academy is party to these cases and none of the courts below address the propriety of race based admissions in that context. And this opinion does not address the issue in light of the potentially distinct interests that military academies may present.

Nick Capodice: [00:30:26] Wait, so military academies can continue to use affirmative [00:30:30] action, but not other higher ed institutions?

Hannah McCarthy: [00:30:33] Yep.

Margaret M. Chin: [00:30:37] Judge Jackson writes back, the court has come to rest on the bottom line conclusion that racial diversity in higher education is only is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker and not in the boardroom. So that's particularly [00:31:00] horrible to think that people of color could be used as cannon fodder, but not as people who could intellectually contribute in universities and in boardrooms.

Hannah McCarthy: [00:31:11] So Margaret stressed a few points over the course of our interview and subsequent conversations. Overwhelmingly, one of those points was affirmative action contributed to more minorities in education, especially elite universities. And education contributes to more minorities in the middle and upper classes in [00:31:30] graduate schools and in high level professional roles. Another thing is that wealthy people from every race are more likely to attend elite universities, but wealth alone does not dictate privilege or upward mobility in America. And this is because of decades of societal discrimination, the way Margaret put it in the US. There is always an intersection of race and class, even among the very wealthy.

Nick Capodice: [00:32:05] So [00:32:00] when it comes to making sure that we preserve access for students who may not otherwise have it, or who, even if they do have it, are not statistically as likely to maintain that access. Does Margaret think colleges are going to find another way?

Margaret M. Chin: [00:32:20] I mean, the inevitable outcome is that I think colleges will begin to look at their application process and begin to evaluate how they can maintain the [00:32:30] racial diversity on their campus. You know, given the legal guidelines set up for them under the Supreme Court, and I think most of the colleges mission is still to educate a diverse student body, and that includes racial diversity. So I think most of the colleges are trying to figure out how can they find a diverse student body within these parameters. So I think that's what they're trying to do now. I mean, I think they'll be creative and [00:33:00] try to come up with ways within the legal realm. What's legal given what the Supreme Court says?

Hannah McCarthy: [00:33:08] Margaret Chin, a child of Chinese immigrant parents, celebrated professor and author of a few books that directly address the question of race and labor, upward mobility and the benefits of diversity. As I said earlier, she is herself a beneficiary of affirmative action and a Harvard alum. So I asked her basically [00:33:30] what she thought of the policy.

Margaret M. Chin: [00:33:33] I definitely recognize that maybe without affirmative action policies, you know, I may not be doing what I'm doing at all. I may not have gotten into Harvard, you know, and I may not have gotten, you know, into my graduate program. I may not have become, you know, a full professor without without it. And I'd say with or without it, you know, we could have been tokens. So but I believe that [00:34:00] that one little push, that one little recognition to see that we do have these things inside of us that can flourish and that can be nurtured. I believe affirmative action has done its job.

Hannah McCarthy: [00:34:18] I want to say one last thing before we wrap up here, because this doesn't happen often, but Margaret emailed me some thoughts after our interview. So she certainly credits affirmative action with [00:34:30] helping her get to where she is today. But she and frankly, reading both the opinions and the dissents, I would say the justices of the Supreme Court as well agree on a central point. Diversity on college campuses is not just good, it's necessary. Margaret pointed out that because of school and neighborhood segregation in the US, a college campus may just be the best integrated and most racially and socioeconomically diverse place that any kid encounters [00:35:00] up to that point in their life. And if we want to live in a functioning, multiracial democracy, the question of race in college admissions, it matters.

Hannah McCarthy: [00:35:25] OK. That [00:35:30] does it. This episode is produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer. Music in this episode by SINY, The New Fools, Michael Keeps, Don Vayei, peerless, Herbonics, Katori Walker, Ballpoint, Ryan James Carr and Cushy.Margaret Chinn and her colleagues have done a lot of writing and thinking on this case, affirmative action, diversity, socioeconomic outcomes based on race. I’m going to link to a lot of that work on our website, civics101podcast.org, because it’ll help inform this episode. [00:36:00] Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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When Espionage Means The Death Penalty

In June of 2023, Donald Trump was charged with 37 counts of alleged mishandling of classified documents, as well as obstruction of justice. Of those 37 counts, 31 are alleged violations of the Espionage Act. Now, since its passage after World War I, thousands of people have been investigated for violating the Espionage Act, including Julian Assange, Daniel Ellsberg, and Donald Trump. However, only two people have been executed for violating it during peacetime; Ethel and Julius Rosenberg. 

This episode features Anne Sebba, author of Ethel Rosenberg: A Cold War Tragedy, and Jake Kobrick, Associate Historian at the Federal Judicial Center. It explains the Espionage Act of 1917, the accusations against the Rosenbergs, the twists and turns of their trial, and their execution in 1953. 


Transcript

Archival: [00:00:06] One of the greatest peacetime spy dramas in the nation's history reaches its climax as Julius Rosenberg and Morton Sobel, convicted of revealing atomic secrets to the Russians enter the federal building in New York to hear their doom.

Nick Capodice: [00:00:22] I'm Nick Capodice.

Hannah McCarthy: [00:00:23] I'm Hannah McCarthy.

Nick Capodice: [00:00:24] And this is civics 101. In June of 2023, Donald Trump was charged with 37 counts of alleged mishandling of classified documents, as well as obstruction of justice. Of those 37 counts, 31 are alleged violations of the Espionage Act. Today we’re going to talk about that act, and we’re going to do it through the most famous, so far, espionage trial in US History; the trial of the first ever US citizens to be executed for espionage during peacetime, Julius and Ethel Rosenberg. And Hannah, this trial has a LOT in it. It’s tied to communism...

Archival: [00:00:53] Communist Party of the United States is a fifth column, if there ever was one.

Nick Capodice: [00:00:57] Mccarthyism.

Archival: [00:00:58] Have you no sense [00:01:00] of decency, sir.

Nick Capodice: [00:01:01] The Manhattan Project, and the Cold War.

Hannah McCarthy: [00:01:05] So this is an espionage case, right?

Nick Capodice: [00:01:07] Yeah.

Hannah McCarthy: [00:01:08] So I think it would be best before we get to know who Ethel and Julius Rosenberg were and what they did, to understand what espionage actually is.

Nick Capodice: [00:01:19] After the US entered World War One, President Woodrow Wilson signed the 1917 Espionage Act. That's been amended several times since then, but basically [00:01:30] it made it a crime to unlawfully retain or disclose any information that could potentially harm the United States or benefit its enemies. And there are lots of Supreme Court cases where this act clashes with our First Amendment rights. Famously, Schenck v United States.

Hannah McCarthy: [00:01:46] Oh, yeah, I know this one. This is the one where the justices ruled that, for example, shouting fire in a crowded theater is not protected speech.

Nick Capodice: [00:01:54] Yeah. So if any speech presents a, "clear and present danger" to the U.S., [00:02:00] you can be punished for it. It's not protected under the First Amendment. Now, the Espionage Act covers a lot of ground. Whistleblowers like Daniel Ellsberg of Pentagon Papers fame and Julian Assange of WikiLeaks fame. They were accused of violating it. And so, too, were numerous spies and people accused of selling secrets. And most recently, the search warrant for the raid of former President Donald Trump's Mar a Lago estate cited a potential violation of the Espionage [00:02:30] Act.

Archival: [00:02:30] The court papers obtained by CBS News and unsealed today show the FBI seized more than 20 boxes, some containing classified documents marked top secret and above.

Hannah McCarthy: [00:02:43] So basically the act says you can't keep sell or reveal information that could compromise national security.

Nick Capodice: [00:02:49] That's it.

Hannah McCarthy: [00:02:51] All right. So let's get into the Rosenbergs. Who were these people and what did they do?

Nick Capodice: [00:02:55] Let's start with Ethel.

Anne Sebba: [00:02:57] You know, I always say I'm not relitigating [00:03:00] the trial. I'm I'm trying to tell the story of who Ethel was and Ethel's life.

Nick Capodice: [00:03:05] This is Anne Sebba. She's a journalist, lecturer and author of Ethel Rosenberg: A Cold War Tragedy.

Anne Sebba: [00:03:11] Particularly in England. If people know anything about the story, they would say to me, Oh, yes, the Rosenbergs, those spies as if they were an indissoluble unit. I wanted to extrapolate Ethel. She was 37 when she was killed and the mother of [00:03:30] two small boys and people really didn't know anything about her except the assumption that she was part of the spy ring.

Nick Capodice: [00:03:40] Before she married Julius. Her name was Ethel Greenglass. That last name is going to come up a few more times. Ethel grew up in my favorite neighborhood in the world, the Lower East Side of New York City. She pursued a career in singing and acting, and that didn't really pan out. But she found work at a shipping company in New York where she started to get involved in a worker's [00:04:00] union and then the Young Communist League.

Hannah McCarthy: [00:04:04] All right. So the word communist has been thrown around a lot in the last century or so. Sometimes it's a literal party descriptor. Sometimes it's an epithet. So how did communism fit into American politics in the 1930s?

Nick Capodice: [00:04:18] Yeah. So communism Karl Marx's political theory that all wealth and property should be shared and distributed as to people's needs. That word communism is a different thing than the Communist Party [00:04:30] in the US. The Communist Party was a very left wing organization with financial and ideological ties to the Soviet Union in the 1930s. Their platform had a lot to do with organizing workers into unions, fighting for the rights of Black Americans and the unemployed. And yes, the bigger goal of abolishing private property and having the government own and run all industry.

Jake Kobrick: [00:04:54] As you might imagine, giving the economic distress that was going on in the United States in the 1930s [00:05:00] during the Great Depression. That was the height of the Communist Party USA's influence.

Nick Capodice: [00:05:05] This is Jake Kobrick, associate historian of the Federal Judicial History Office.

Jake Kobrick: [00:05:10] So somebody being a member of the Communist Party in 1930s, New York, which was the center of their operations at that point, was not as extraordinary as it might sound in retrospect. The Communist Party in the 1930s in the United States was following what they called a popular front strategy, meaning that they were trying to not [00:05:30] sound radical, that they were trying to link themselves with other progressive organizations in the United States and sort of be part of the general political conversation. And what that meant in practical terms was they were very heavily involved in trying to organize labor, organize workers for better conditions, which in the 1930s was was a popular cause.

Nick Capodice: [00:05:49] Ethel Greenglass met Julius Rosenberg at a meeting of the Young Communist League in 1936 and Anne said that year is really important. [00:06:00]

Anne Sebba: [00:06:00] To me, 1936 is the touchstone when the world might have changed. And that, of course, is when Ethel and Julius both became communists. The only way to stop the dictators, Hitler, who had marched into the Rhineland, the Spanish Civil War, and Franco and Mussolini, they were all flexing their muscles. But also she'd lived through the Depression. She'd seen that capitalism hadn't worked. She thought the really must be another way.

Hannah McCarthy: [00:06:26] Since communism was explicitly tied to [00:06:30] another nation, the Soviet Union, was being a communist in and of itself considered something like a treasonous act?

Nick Capodice: [00:06:38] No, not at all. And interestingly, this is why Julius and Ethel are later convicted not of treason, but of conspiracy to commit espionage. Because as I'll get into, yes, Julius did become a spy for Russia, but he did so after Russia had become an ally in World War Two.

Hannah McCarthy: [00:06:57] Okay. So because the Constitution defines treason [00:07:00] as related to enemies giving enemies aid and comfort. Treason does not apply to Julius Rosenberg, right?

Nick Capodice: [00:07:07] Aid and comfort to an ally is not in our Constitution. And in 1941, the United States was trying really hard to convince people that Russia was an ally.

Anne Sebba: [00:07:16] There were a lot of rallies or propaganda films, and at that point, Russia became the brave ally of America and the world, and they were fighting the cause that we were all fighting against Hitler. [00:07:30] So. So there were these sort of yo yo swings and roundabout movements, if you like.

Archival: [00:07:36] And Russians are determined to hold at all costs. Perish, but do not retreat, is the order of every day.

Hannah McCarthy: [00:07:45] And you said Julius became a spy for the Russians.

Hannah McCarthy: [00:07:47] He did.

Nick Capodice: [00:07:47] What did he do for them?

Nick Capodice: [00:07:49] Well, we only know the extent of what Julius did. Thanks to the 1995 declassification and release of information about this counterintelligence program called VENONA [00:08:00] and VENONA revealed Julius was recruiting spies for the Soviet Union and giving them information.

Anne Sebba: [00:08:06] So these secret documents, the VENONA documents, of which there were thousands and thousands that the U.S. was deciphering decrypting, which revealed American agents passing information to the Soviet Union. And, of course, America was really scared. Again, I understand this existential [00:08:30] fear, because not only had Russia exploded a bomb in 1949 and the Americans thought that the Russians were years behind, they never expected them to have access to nuclear weapons.

Nick Capodice: [00:08:44] This is a crucial part of the Rosenberg story. Russia tested a nuclear bomb in August 1949, and everyone was like, How on earth did Russia get nukes? It must have been spies. People working on the Manhattan Project in Los Alamos, [00:09:00] New Mexico, where we designed our first atomic weapons. And the US government starts to arrest people suspected of giving nuclear secrets to the Soviet Union.

Jake Kobrick: [00:09:09] And there were seven people who were allegedly involved in this conspiracy. There were the Rosenbergs, there were the green glasses, Julius Rosenberg's in-laws, David and Ruth Greenglass. There was Morton Sobol, who was a friend of Julius and a fellow Communist. There was Harry Gold, who allegedly acted as a courier between the spies [00:09:30] and the Soviets. And then there was Anatoly Yakovlev, who was a Soviet official who was allegedly in charge of their atomic espionage program in the United States.

Anne Sebba: [00:09:41] Now, Julius was not at Los Alamos, but Ethel's brother, David Greenglass, had been at Los Alamos where they were making the bomb, the Manhattan Project. He was a lowly machinist. He didn't know anything, but clearly merely being there was enough to excite information. [00:10:00]

Jake Kobrick: [00:10:00] David was in New York. He was over at the the Rosenbergs apartment, I believe, and Julius tore a jello box in half and gave David and Ruth half of that Jell-O box. And he basically said, I'm going to send someone out to you. And the way you'll know that it's the person that I'm sending you is they're going to have the matching half of this box.

Hannah McCarthy: [00:10:19] A Jell-O box.

Nick Capodice: [00:10:20] That's some low tech spycraft.

Hannah McCarthy: [00:10:22] You know, low tech can be very effective.

Jake Kobrick: [00:10:23] There's a knock on their door. They open the door. A man allegedly says, I come from Julius. He has the [00:10:30] matching half of the box. They match him up. And that's how he knows this is the right person to give these stolen notes and sketches to about the atomic bomb.

Nick Capodice: [00:10:38] Ethel and Julius were arrested in 1950 under the charge of conspiracy to commit espionage.

Hannah McCarthy: [00:10:45] Now, Jake said there were seven people involved in the plot, so why do we only learn about the Rosenbergs? And so far, you haven't told me anything about Ethel's supposed role in all of this. What was she accused of doing?

Nick Capodice: [00:10:57] All right. We're going to get to Ethel, the trial and [00:11:00] everyone else involved right after this break.

Hannah McCarthy: [00:11:02] But first, just our weekly shout out that the most significant portion of our show's budget depends on listeners. Like you donate a buck or five at our website, civics101podcast.org, or just click on the link in the show notes.

Hannah McCarthy: [00:11:18] We're back. Ethel and Julius have been arrested. What happens next, Nick?

Nick Capodice: [00:11:22] So the government knows from these decoded VENONA documents, those again are the thousands of secret messages intercepted by the US. [00:11:30] The government knows that Julius was indeed a spy. He recruited agents for a spy ring and he gave the Soviet Union's secret documents. Here's Jake Kobrick again.

Jake Kobrick: [00:11:42] You know, he had code names and everything. They called him Antenna for a while. And then after that, they called him Liberal. The Greenglasses, by the way, they had they had code names as well. David Greenglass was Bumblebee for a while and then Caliber and Ruth Greenglass was Wasp. And Ethel Rosenberg did not have [00:12:00] a codename, which is pretty significant.

Hannah McCarthy: [00:12:02] So if Ethel didn't have a code name, does that mean she was not necessarily a spy?

Nick Capodice: [00:12:08] Ethel Rosenberg's actions and involvement here is like a big, wide, uncertain mark on this whole trial. To this day, we are not sure of the specificities of her involvement, and it's worth mentioning that there is a movement around her potential innocence. Her sons asked President Barack Obama to exonerate her of her crimes. Anne [00:12:30] Sebba told me that Ethel had been used as a lever. She was to be a tool to name other parties and confirm Julius's guilt, which would then lessen her sentence. But she didn't. She and Julius protested their innocence and did not name names of any coconspirators. Here's Anne again.

Anne Sebba: [00:12:50] Once these VENONA documents were deciphered, a man called Klaus Fuchs who was in England was arrested. He confessed. [00:13:00] He was a very clever physicist who really had given important information to the Russians. So Klaus Fuchs was arrested. He confessed. He was given 14 years and he named names. That's what everybody did. Klaus Fuchs named his courier Harry Gold. Harry Gold, who was a serial liar already in prison, named David and Ruth Greenglass, who were real spies. They passed information and given money. David and this is the critical point, named [00:13:30] only one name, Julius Rosenberg. If you read his grand jury statements, he did not name his sister, Ethel.

Nick Capodice: [00:13:41] In 2015. David Greenglass statement to the grand jury before the trial was released, and he said, Leave my sister Ethel out of it. She is not involved. However, at the trial itself, there were several prosecutors questioning David, including Roy Cohn. [00:14:00]

Archival: [00:14:00] One thing we have to understand at the outset is that the Communist Party is not a political party. It's a criminal conspiracy. Its object is it has been established by the verdict of a jury, the overthrow of the government of the United States.

Hannah McCarthy: [00:14:14] And for anyone out there who doesn't know Roy Cohn, he was a lawyer who would later serve as chief counsel to Senator Joseph McCarthy during the McCarthy hearings, which were about finding and outing communists and the lavender scare, which was about finding and outing members of the [00:14:30] gay community.

Nick Capodice: [00:14:30] And as an additional footnote, later in Cohn's life, he would serve as lawyer and long time mentor of a young real estate developer named Donald Trump. But back to the trial. They reenacted the scene with the Jell-O box. You can actually see the box they used in the trial at the National Archives. It was raspberry flavored, by the way. But a big turning point in the trial happens during Roy Cohn's examination of David Greenglass, where David reversed [00:15:00] what he had said about his sister Ethel.

Anne Sebba: [00:15:02] When he invented a different story and he perjured himself and suddenly said she did the typing.

Hannah McCarthy: [00:15:10] Typing? Typing up what?

Nick Capodice: [00:15:12] Typing up notes for Julius and David. And in the prosecution's closing statement, they said that Ethel, quote, sat at that typewriter and struck the keys blow by blow against her own country in the interests of the Soviets. Later, [00:15:30] when David Greenglass got out of jail, he admitted he had lied about the typewriter.

Anne Sebba: [00:15:36] In my view, it was such a clever lie, partly because it was known that Ethel was a typist, but partly because, don't forget, this is the 1950s and misogyny is absolutely dripping at every stage of this evidence. The only evidence, quote unquote, that the judge could use was that Ethel was older, two and [00:16:00] a half years older, than her husband. Therefore, she was obviously the senior partner in this crime unit. Again, no evidence. But but that's the attitude towards women. It was known that Ethel was clever, but a typewriter is something that all Americans could understand. Because if American women undertook work in the 1950s, it probably was that sort of secretarial work. So if you can't trust [00:16:30] that person who's doing your typing, who on earth can you trust? And Ethel was it was insinuated was a woman who couldn't be trusted.

Hannah McCarthy: [00:16:40] What exactly insinuated that she couldn't be trusted?

Nick Capodice: [00:16:43] Well, for one thing, she took the Fifth Amendment at her trial. She refused to say anything that would incriminate herself.

Anne Sebba: [00:16:50] So she was considered slippery because she wasn't telling the truth. Ethel somehow came to portray somebody who was responsible for [00:17:00] betraying all American womanhood that if if you allowed Ethel to get away with with what was conveyed as spying. Although I keep repeating, there's no evidence she actually partook of this. You would be somehow allowing all American womanhood to to be guilty.

Nick Capodice: [00:17:28] Julius and Ethel [00:17:30] Rosenberg were found guilty of conspiracy to commit espionage and were sentenced to death for their crimes. Roy Cohn would go on to say years later that the judge issued the death sentences on Cohn's personal recommendation. The US government offered to lessen their sentence if they just name names of coconspirators. But Julius and Ethel replied by saying, "By asking us to repudiate the truth of our innocence. The government admits its own [00:18:00] doubts concerning our guilt. We will not be coerced, even under pain of death, to bear false witness." David Greenglass then wrote to President Eisenhower to personally request their sentence be commuted to prison time. But that request was denied. Eisenhower wrote The execution of two human beings is a grave matter. But even graver is the thought of the millions of dead whose deaths may be directly attributable to what these spies have done.

Hannah McCarthy: [00:18:27] Now, there were other parties involved. Were none of them sentenced [00:18:30] to death as well?

Nick Capodice: [00:18:30] No they all served jail time and again. These are the only two people in U.S. history to be executed for espionage during peacetime.

Hannah McCarthy: [00:18:39] The only time as in it has not happened since then?

Nick Capodice: [00:18:42] The only time, has not happened as of this recording. It has not happened since then. And that execution was scheduled for June 17th, 1953. However, there's one last twist. And do you remember our episode on the Shadow docket?

Hannah McCarthy: [00:18:58] Yeah, of course. It's about the times that the [00:19:00] Supreme Court orders actions outside of their usual ruling.

Nick Capodice: [00:19:03] Yeah, there is a notable instance of that here. On the day the Rosenbergs were to be executed at Sing Sing Prison, Supreme Court Justice William Douglas issued a stay of execution. He put the whole thing on hold.

Hannah McCarthy: [00:19:16] What was his reasoning for that?

Nick Capodice: [00:19:18] Well, his reasoning was that while the judge, Irving Kaufman, had sentenced the Rosenbergs to death, the jury had not. And this conflicted with a ruling in another case in 1946, [00:19:30] which said a jury had to consent to a death sentence.

Hannah McCarthy: [00:19:33] So because of that precedent set, when Judge Kaufman sentenced them to death, but the jury didn't. This was grounds for Justice Douglas to pause their execution.

Nick Capodice: [00:19:42] Yes. And since this stay of execution was granted in the summer, it would be months until the Supreme Court was back in session and they could review the case.

Hannah McCarthy: [00:19:51] So did they delay it until the summer?

Nick Capodice: [00:19:53] They did not. Chief Justice Fred Vinson immediately convened the court out of session, and he stopped that stay of [00:20:00] execution. Justice Douglas faced impeachment proceedings because of this later, he was not removed. But this is a story for another day.

Archival: [00:20:08] Inside the stone walls of Sing, Sing Prison. The Rosenbergs wait all day for word of their fate. It's now more than two years since they were first sentenced to die for organizing atomic espionage for Russia.

Nick Capodice: [00:20:19] On June 18, at 8 p.m., Julius and Ethel Rosenberg were electrocuted. One reporter who was present at the execution described Ethel's death in extreme detail, [00:20:30] which I actually want to share here with our listeners. But frankly, it's a horrific description. So if there's anybody out there who doesn't feel like hearing about it, skip ahead a minute and 30 seconds.

Archival: [00:20:41] When it appeared that she had received enough electricity to kill an ordinary person and had received the exact amount that had killed her husband, the doctors went over and pulled down the cheap prison dress. A little dark green printed job. And [00:21:00] place the stethoscopes. I can say it. Place the stethoscopes to her and then looked around that looked at each other rather dumbfounded and seemed surprised that she was not dead, believing she was dead. The attendants had taken off the ghastly wrappings and electrodes and the black belts [00:21:30] and so forth. And these had to be readjusted again. And. And she was given more electricity, which started again, that kind of a ghastly plume of smoke that rose from her head and went up against the skylight overhead. After two more of those [00:22:00] jolts. Ethel Rosenberg had met her maker. She'll have a lot of explaining to do, too.

Hannah McCarthy: [00:22:12] What was the public's reaction to their death?

Nick Capodice: [00:22:15] It was divided, though, Anne told me that in a poll conducted prior to the execution, 70% of Americans felt Ethel Rosenberg should be killed for her crimes. And at the same time, others considered the two of them as martyrs. [00:22:30] 10,000 people waited outside their funeral services in Brooklyn, where their lawyer, Emanuel Bloch, said that America was living under the heel of a military dictator garbed in civilian attire.

Hannah McCarthy: [00:22:43] Nick, if we look at this case from a civics angle and what are we supposed to learn from the trial of Ethel and Julius Rosenberg?

Jake Kobrick: [00:22:51] We are always in a very interesting position at the FJC. We try not to be openly critical of the judiciary or [00:23:00] say anything that would cast the judiciary in a bad light. But at the same time, we don't shy away from acknowledging that the judiciary has made mistakes. You know, people were obviously when we talk about Dred Scott, we say obviously this was a terrible thing. You know, people in the years after the trial were very, very critical of Irving Kaufman's conduct. They they were critical of [00:23:30] of the death sentences. I mean, it really looks like he kind of got to swept up in this and too carried away. So, I mean, there's blame to go around. I mean, there's blame. I think probably more of the blame falls with the Justice Department. And I think we kind of rely on the judiciary to, I guess, de-escalate that passion. The judiciary is supposed to be a neutral arbiter between the prosecution and the defense. [00:24:00] And in this particular case, the judiciary failed in that task, I think.

Anne Sebba: [00:24:06] Of course, if you're looking at it through the prism of the trial, Ethel would never have been convicted today. I mean, the American Bar Association has had a rerun and there is so much that is not acceptable now. And it's quite clear from the letters I've had from lawyers how this is a shameful moment that they were prepared in [00:24:30] the fear of mob rule and the fear of communism, which, as I say, I do understand, to let the rights of one of their citizens be overruled because they felt it was for the greater good. And as far as I'm concerned, I can only repeat if my book is about one thing. It's about the importance of the rule of law. And God knows we need it more than ever today.

[00:25:08] [00:25:00]

Nick Capodice: [00:25:12] That's the story of the Rosenberg trial. Huge thanks to the American Bar Association for working with us on this series. If any of you are educators out there who want to teach this case in your classroom, there are some great resources provided by the Federal Judicial Center on our website, civics101podcast.org. This episode was made by me Nick [00:25:30] Capodice with you, Hannah McCarthy.

Hannah McCarthy: [00:25:31] Our staff includes Christina Phillips is our senior producer and Rebecca Lavoie our executive producer.

Nick Capodice: [00:25:37] Music in this episode by Bio Unit Blue Dot Sessions Ben Lesson Howard Harper Barnes Christian Andersen. Emily Sprague ProletR Scott Gratton Yung Kartz Jesse Gallagher and the great Chris Zabriskie.

Hannah McCarthy: [00:25:48] Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

Presidential Records

What are presidential records? And to whom do they belong?

Every president generates millions of records in the course of leading the country: memos, emails, speeches, notes, Tweets... There are rules for how those records should be treated, both as historical documents, and as public property, enshrined in the Presidential Records Act. What does the Act say,  and what does it have to do with how former-President Donald Trump handled government documents after leaving office? 

We talk with Trudy Huskamp Peterson, who worked as an archivist for the National Archives for 24 years, including  serving as Acting Archivist of the United States from 1993-1995.  We also talk with Margaret Kwoka, Professor of Law at Ohio State University and legal expert on information law, government secrecy, and transparency. 


Transcript

Archival President Clinton: [00:00:00.56] And I am so sorry about disco. I mean. That whole era of leisure suits and beanbag chairs and lava lamps. I mean, we all had to endure the cheesiness of the 70s, and that was wrong.

 

Nick Capodice: [00:00:24.43] Hannah, what the heck is this?

 

Hannah McCarthy: [00:00:26.05] This is from the Clinton White House Correspondents Dinner in 1998. This is Bill Clinton apologizing for injustices committed in America throughout history, including saying that Pluto isn't a planet and just generally apologizing for pineapple pizza.

 

Archival President Clinton: [00:00:41.68] Pineapple on pizza. Some things are just wrong.

 

Hannah McCarthy: [00:00:48.52] By the way, did you know that an earlier version of this comedy act involved a joke about a spork?

 

Nick Capodice: [00:00:54.10] A spork? I thought the pineapple pizza joke was bad enough.

 

Hannah McCarthy: [00:00:57.58] Well, the joke about the spork, in case you're wondering, was the spork an eating utensil? That's useless as a spoon and is a fork. And for that, I am sorry.

 

Nick Capodice: [00:01:09.37] Whew.

 

Nick Capodice: [00:01:10.36] Well, Hannah, why do you even know about a bad joke that Clinton didn't actually ever say in the first place?

 

Hannah McCarthy: [00:01:17.89] Well, there's actually a whole lot more where that came from. Millions of pages, in fact, from Clinton's time in the White House, including drafts of speeches he made with notes in the margins and everything. And you as a member of the public can access that in Clinton's official presidential records. And while this presidential record is less serious than, say, Kennedy's briefings on the Cuban Missile Crisis, all of these records for every president are part of a collective history protected under the Presidential Records Act, something we have been hearing about a lot lately.

 

Archival Audio: [00:01:53.56] Former President Trump facing questions over his mishandling of official records after....Revelations that Donald Trump took 15 boxes of official presidential records and memorabilia to his Mar a Lago resort....Agents were told to look for signs that official records had been altered, destroyed or concealed.

 

Hannah McCarthy: [00:02:12.53] This is Civics 101. I'm Hannah McCarthy.

 

Nick Capodice: [00:02:14.42] I'm Nick Capodice.

 

Hannah McCarthy: [00:02:15.32] And today we're talking about presidential records: what they are, how they are supposed to be handled, and whether they have anything to do with the criminal case against President Donald Trump for what he did with a bunch of government documents at the end of his presidency.

 

Nick Capodice: [00:02:32.06] Now, when we use the term presidential record, what exactly are we talking about?

 

Hannah McCarthy: [00:02:37.22] A presidential record, according to the Presidential Records Act of 1978, Is anything created or received by the president or any of their staff in the course of carrying out the duties of office. It also applies to vice presidents and their staff. We're talking memos, briefings, emails, maps and even tweets.

 

Trudy Huskamp Peterson: [00:02:58.52] The obvious presidential record would be a message to Congress. The president's daily briefing by the intelligence services.

 

Hannah McCarthy: [00:03:08.09] This is Trudy Huskamp Peterson.

 

Trudy Huskamp Peterson: [00:03:10.19] I'm a certified archivist. I've worked for the US National Archives for over 20 years, and the last two plus years I was the acting archivist of the United States. After that, I've done archival work all over the world.

 

Hannah McCarthy: [00:03:25.19] We're talking to Trudy because presidential records are the responsibility of the National Archives, which archives, organizes, and preserves them for the public.

 

Nick Capodice: [00:03:42.95] But what about personal stuff? What doesn't count as a presidential record?

 

Hannah McCarthy: [00:03:47.45] The act does define the difference between personal records and presidential records. The obvious personal records would be the things that have to do with the president's private life.

 

Trudy Huskamp Peterson: [00:03:57.17] If a president has a child in the White House and the child gets a report card and it comes in, that's certainly private. If a president sends a letter to his sister for her birthday, that's probably private.

 

Hannah McCarthy: [00:04:11.72] And the act also accounts for anything related to a reelection campaign or the president as a candidate. Sometimes this stuff is considered personal rather than presidential.

 

Trudy Huskamp Peterson: [00:04:21.74] The one that becomes tricky is political material. And the general distinction is something like this. If a president is sending a message to Congress and supporting a bill that is of his party, that is doing political business, but it is doing it in the course of his regular duties. If, on the other hand, president gets in an airplane and the flight is paid for by the political party and he flies here to my home state of Iowa and does a speech on behalf of candidates or on behalf of reelection. That's private. That's political, private business. It is not his constitutional or statutory. Tory duty to fly to Iowa and make a speech on behalf of a candidate.

 

Nick Capodice: [00:05:15.52] All right. So why have this act in the first place? What is the point of defining what counts as a presidential record versus a personal one?

 

Hannah McCarthy: [00:05:23.36] Well, because the Presidential Records Act doesn't just define presidential records. The act also says that those records do not belong to an individual president. They belong to the public. And because they belong to the public, they must be preserved and made accessible to that public. And this is where the National Archives comes in.

 

Trudy Huskamp Peterson: [00:05:47.27] Presidential Records Act says that the records created by the president in the course of his or her constitutional statutory duties are the property of the people of the United States. They are public property, not private property.

 

Nick Capodice: [00:06:02.39] I mean, it does make sense that the records of the president do not belong to that individual president by virtue of the fact that the presidency is a job serving, you know, it's beholden to and funded by the public. But you said this act didn't exist before 1978. So how do we handle presidential records before that?

 

Trudy Huskamp Peterson: [00:06:22.47] Well, maybe the way to answer that is to talk a little bit about the history of why we have a presidential records Act. The starting with George Washington. Presidents took their records home with them when they left office at that time. Of course, there was no National Archives. There was no alternative. And so all the way through the 19th century, presidents thought of their papers as their private property and they took some home. By the time we get into the early 20th century, the presidency has grown a lot. And there are a lot of materials, not only papers, but photographs and sound recordings and all kinds of things. And it becomes a real management problem when they leave the presidency. Franklin Roosevelt, under whose administration the National Archives was created, the National Archives Act is 1934, was trying to figure out what to do with all the stuff he was getting. And his aide suggested to him that this new institution, the National Archives, could take care of the materials after his presidency was over. And so this is what happened. The papers of Franklin Roosevelt were given to the National Archives to manage at the president's home in Hyde Park, New York. And so that's the first establishment of a presidential library. What happens after Roosevelt, then, is Truman thinks this is a good idea. And his friends, because he's not wealthy, establish a library at his home in Independence, Missouri, for his material, and it is given to the National Archives to run.

 

Archival Audio: [00:08:10.37] The library will house 3.5 million documents of the Truman era, including a famous election extra that was somewhat inaccurate.

 

Hannah McCarthy: [00:08:19.44] Then President Eisenhower decided to make this an official policy with the Presidential Libraries Act of 1955.

 

Trudy Huskamp Peterson: [00:08:27.72] And at that time, it simply provided that the National Archives, on behalf of the government, could accept a donation of presidential papers still considered private. So it was a donation to the public and could also take a donation of a facility, a building in which to house them and to run them.

 

Nick Capodice: [00:08:50.10] So former presidents find a way to fund the construction and operation of these libraries themselves. And the National Archives manages what's in them. The records inside.

 

Hannah McCarthy: [00:09:00.21] Yeah. And most presidents start making plans with the National Archives before they leave office.

 

Nick Capodice: [00:09:05.94] All right. So in the 20th century, presidents started setting up private libraries for all their records and donating these records to the National Archives to manage them in those libraries. What happened next?

 

Trudy Huskamp Peterson: [00:09:18.51] And that's going on all the way up through Nixon.

 

Archival Audio: [00:09:21.66] Are you sorry you didn't burn the tapes?

 

Archival Audio: [00:09:24.48] You know, interestingly enough, everybody in Europe that I talked to said, why didn't you burn the tapes? And the answer is I probably should have.

 

Nick Capodice: [00:09:33.69] The title of this episode is actually "Part 57 in our ongoing series: Because of Nixon."

 

Trudy Huskamp Peterson: [00:09:39.36] We get to the Nixon administration. And of course, at the end of the administration, Nixon resigned in disgrace. And then it turns out that Nixon is making a deal with a part of the government called the General Services Administration, at which time the National Archives was part and the head of the General Services Administration was Vinylite Nixon. Destroy the famous Nixon tapes. Everybody in the country who was political said, Oh, no. This is a bad idea. So the Congress quickly passed a law that covered the Nixon papers and said, no, we're seizing these for the government.

 

Hannah McCarthy: [00:10:21.49] Now, a lot of these records had already been made public because they were seized during the investigation into Watergate. But once Nixon left office, any of his records that were not already in the custody of the federal government were in Nixon's custody.

 

Nick Capodice: [00:10:37.96] And given how much public interest there was into the whole Watergate scandal and Nixon's famously sketchy track record of destroying or hiding records, that might hurt his reputation, I can see, Hannah, how people would want to make sure he couldn't just wipe away a lot of that history.

 

Hannah McCarthy: [00:10:52.51] Exactly. So Congress passed a law, the Presidential Records and Materials Preservation Act, that allowed the federal government to take custody of Nixon's presidential records.

 

Trudy Huskamp Peterson: [00:11:03.79] And then they started to think, well, what do we do in the future? We need to make sure we don't get into this problem again. And out of that came then the Presidential Records Act of 1978, which says if the material that is accumulated by the presidency during the course of the administration is related to constitutional and statutory duties, it is the property of the people. The president can't take it away with him and treat it as private property. It then went into effect with the Reagan administration.

 

Nick Capodice: [00:11:39.89] So what are the logistics of this? How is a president supposed to handle the records?

 

Trudy Huskamp Peterson: [00:11:44.27] The act requires the president to make all reasonable effort to separate at creation the personal from the public so that at the end of the administration there isn't a mass of which is which.

 

Hannah McCarthy: [00:11:59.18] There's a White House records office that starting on Inauguration Day, manages records throughout the presidency. They're in charge of making sure records are stored correctly, labeled as presidential or private, and communicating with the National Archives. However, the National Archives have the final say on whether a record is presidential or private.

 

Nick Capodice: [00:12:19.85] So what happens to something once it has been designated an official presidential record? How does it get from the White House to the National Archives?

 

Trudy Huskamp Peterson: [00:12:28.85] Well, some material starts to come over during the presidency if there's material that the president doesn't need anymore. And if you know that the end of an administration is coming, that is the eight years, then you can start making plans quite early about moving material over.

 

Hannah McCarthy: [00:12:47.72] A lot of this material is electronic, which has its own process for being transferred from the White House to the National Archives. But there are also a lot of records that the National Archives and the White House need to pack up and move, usually to a National Archives facility and maybe eventually to a presidential library.

 

Trudy Huskamp Peterson: [00:13:06.74] It's very complicated and it's slow because you have to make sure that all the national security things are protected. If there is classified material in there, it is handled at the right level of security. The people in the National Archives have all the security clearances to handle it. And so the right people in the archives handle it. They have the storage that is able to handle classified, whether it is paper format or electronic format.

 

Hannah McCarthy: [00:13:35.21] Okay. There are two things here that I want to note. The first is that classified material or any potentially sensitive information has its own process for how it should be handled outside of the Presidential Records Act, The act is still relevant because any individual president, once they leave office, does not have private ownership over records created as part of doing their job. But there are additional restrictions and laws that are above and beyond the Presidential Records Act. If those records have classified or sensitive material.

 

Nick Capodice: [00:14:06.59] Well, that makes sense.

 

Hannah McCarthy: [00:14:07.94] The other thing is digital records, emails, tweets, any kind of social media. If it is business of the government, it is considered a government record.

 

Trudy Huskamp Peterson: [00:14:18.77] So if in the future we started creating records on pancakes, we'd save the pancakes.

 

Nick Capodice: [00:14:29.45] What about communications with other agencies? Like if the FBI or the CIA sends the president a memo? Is that memo something that falls under the Presidential Records Act?

 

Hannah McCarthy: [00:14:40.73] We'll talk about that right after the break.

 

Nick Capodice: [00:14:43.22] But before that break, if you're a fan of stuff like FOIA and the Presidential Records Act, you're probably going to be a fan of our newsletter. It's called Extra Credit. It's Free. It comes out every two weeks. It's fun. And you can sign up at our website, civics101podcast.org. We're back. You're listening to Civics 101. We are talking about internal communications with the White House and other government agencies. So, Hanna, if someone from the State Department, for example, emails the president, is that a State Department record or a presidential record?

 

Hannah McCarthy: [00:15:20.76] Well, it's kind of both. This is Margaret Kwoka. She's a law professor at Ohio State University, where she focuses on laws around government documents and access to government information.

 

Margaret Kwoka: [00:15:32.40] The Presidential Records Act itself specifically excludes official records of an agency.

 

Hannah McCarthy: [00:15:39.18] There's another statute, the Federal Records Act, that created a system for handling government documents. What needs to be saved and archived? How the information should be treated and how it can be accessed by the public. So records in all other agencies of government fall under that law.

 

Margaret Kwoka: [00:15:56.28] Now, as a practical matter, the problem comes in where agencies, of course, often create records that are part of the agency's official records and then transmit those records to the president for the information or use by the president or the president's advisers and staff. And so the question is, what happens to those records? And the truth is, this hasn't been sort of brought up in the courts very often. And now, of course, with everything being electronic, it's not like the records are either here or they're there. Right. The agency has a copy, the President's office has a copy, and there hasn't been a lot of litigation about, you know, are these copies treated separately? Do they have to be returned? How do we handle them going forward? Because mostly those records that end up being used by the president's office with all the other presidential materials are simply transmitted to the archives in the normal course of the end of a president's term. The way this has been going on, you know, mostly without problems since the Presidential Records Act was enacted. And so we haven't had a chance to sort of get into these finer distinctions of, well, you know, do some of these records that are going back and forth have to be treated under one or under the other of these laws? Because the archives is simply taking custody of them and proceeding as it normally would, to archive to provide access where required under the law and to serve that function as the official record of the government.

 

Nick Capodice: [00:17:32.78] So the takeaway here is that if there is a record in the White House, whether or not it was created there or brought there from another agency or came from the public, if it has anything to do with the federal government operations, including the duties of the president, vice president or any of the operations of their offices, it is not personal. It does not belong to that individual president.

 

Hannah McCarthy: [00:17:54.53] Right.

 

Nick Capodice: [00:17:55.16] So I feel like we're sort of getting around to the elephant in the room right now, which has to do with how former President Donald Trump handled his records. But I'm also wondering, can presidential records ever be destroyed?

 

Hannah McCarthy: [00:18:08.36] Yes, but it is not up to the president to decide what can be destroyed. It's up to the National Archives. Here's Trudy Huskamp Peterson again.

 

Trudy Huskamp Peterson: [00:18:18.80] The president can destroy records, but first he must go to the archives and say to the archivist, This is what we plan to destroy. Is this okay? Now this comes typically out of the White House records office, but on behalf of the president and the archives will look at it and say yes or no.

 

Nick Capodice: [00:18:37.10] I like the idea of a president showing up at the National Archives with a box being like, Hey, would you guys be cool if I destroyed this? So what kind of records would the archives actually be okay with destroying?

 

Trudy Huskamp Peterson: [00:18:50.69] Usually it's things like absolutely routine letters from constituents or email from constituents in which you get 20,000 and they all say the same thing because they're part of a, you know, a campaign by someone. And so the archives will typically say a sample of those so that you can see that it came in. We'll save the evidence of the number of those that came in and then say, okay, you know, if you keep getting this same message over and over and over again, yeah, go ahead. You also allow the destruction of things like buying food for the White House mess and gas for limousines and so forth. So, sure, there have to be destructions during the presidency, but it's it is much, much more routine matter than it is highly sensitive or politically interesting material.

 

Hannah McCarthy: [00:19:47.09] All right. In 1998 alone, President Clinton got over a million emails and 2.2 million letters from the public. So that's about 5400 letters a day, just truckloads of mail.

 

Nick Capodice: [00:20:01.52] All right. So what happens when the records are turned over to the National Archives if they now all belong to the public? Do we just automatically get access to them?

 

Hannah McCarthy: [00:20:10.55] Not quite. The public won't have access to presidential records for five years, and the outgoing president can request certain information be stored without public access for even longer.

 

Trudy Huskamp Peterson: [00:20:21.26] There is a provision that allows a sitting president before he leaves office to identify certain materials that he would like to have restricted up to 12 years. And all the presidents that I am aware of have done so. And one further element is that if these materials are needed for purposes of litigation, for appropriate congressional use, the previous president, whose records they are, is notified. The incumbent president is notified, and if they do not object, then those materials are made available for those very narrow purposes.

 

Hannah McCarthy: [00:21:04.50] Essentially, if Congress or the Justice Department want access to presidential records of a former president that are still not publicly available, it's under the jurisdiction of the sitting president to decide if they should be released.

 

Trudy Huskamp Peterson: [00:21:17.91] I think it is important that people understand that you're not trying to block the current activities of government. And, you know, in some ways, activities carry on from one administration to another. The Covid crisis is an example, and you want those records to be available to the incoming administration so they understand what's been done, where they're going and so forth.

 

Nick Capodice: [00:21:41.82] But that does make me wonder, how does anyone know what kind of information even exists, not just Congress or the Justice Department, but the archives themselves? Like, how would the National Archives know that they have all the records they're supposed to or if anything is missing?

 

Hannah McCarthy: [00:21:59.79] Well, Trudy said that part of being an archivist is knowing what information you should expect to get. Creating a catalog, basically. So when a president is leaving office, there's a sense of what's there and what isn't.

 

Trudy Huskamp Peterson: [00:22:13.80] What you do is you understand the organization of the institution that you're trying to document. And you look and you say, Do I have all the records of the office of the secretary? Do I have all the records of the office of the social secretary? Do I have all the records of. And if you don't have one of the big chunks, then you say, Whoops, where is it? Where is this gone? Then you start to take a look further in that and you say, Look, I don't have stuff from this period. I don't have anything from May of something to August. What happened? Why isn't there anything there? You may have also basically a filing list. Think of email and you have a whole set of categories and you move your email into them and you look at that and you say, whoopsie, there's a category there and there's nothing in it. Why is that? Where is that? Or you say, I should have something from every country in the world. World leaders. I don't have any of them from this country or that country. Where is this? So it's that way you do it. You don't sit there and go through page by page and say, Gee, I don't have an answer to this document. That would be impossible given the volume we're talking about. So you look at it structurally.

 

Nick Capodice: [00:23:36.77] So Trudy is saying that before the National Archives even start getting records, they've got an idea of what they should have. And there's a pretty good chance that they're going to notice if something's missing, right?

 

Hannah McCarthy: [00:23:47.99] Exactly.

 

Nick Capodice: [00:23:49.01] So what if they do realize that some records are missing? What powers do they have to get them back?

 

Hannah McCarthy: [00:23:54.65] Trudy says that the National Archives themselves don't have any real enforcement power, but if they think records might be missing, they first try to get them back from the president and then they can escalate to the Justice Department. And I think now might be a good time to talk about former President Trump, who has been charged with mishandling sensitive government information and obstructing justice in a case over official government documents he removed from the White House after his presidency ended.

 

Archival Audio: [00:24:25.59] Thank you for joining us. I'm Nancy Cordes, in for Norah tonight. A federal judge has unsealed the warrant that authorized the search of former president Donald Trump's Florida home, Mar a lago.

 

Hannah McCarthy: [00:24:36.84] And as we talked about earlier, the National Archives usually have a pretty good idea of what they should be getting at the end of a president's term. So they realized that Trump had not returned some material.

 

Nick Capodice: [00:24:48.90] Wait, hold on. At one point, didn't Donald Trump invoke the Presidential Records Act to justify taking the documents in the first place?

 

Hannah McCarthy: [00:24:56.04] He did. He said that he had the right as president to declare that. Grids in the White House were personal and therefore his property.

 

Nick Capodice: [00:25:04.02] Even though the Presidential Records Act says that the National Archives are the ones who determine if something is personal or presidential.

 

Hannah McCarthy: [00:25:11.01] Yeah. Here's what Trudy had to say about that.

 

Trudy Huskamp Peterson: [00:25:13.71] Well, he was wrong on practically every interpretation of the Presidential Records Act. He had no right to take the records. He had no right to keep them. And he should have obeyed the law.

 

Hannah McCarthy: [00:25:26.22] And Trudy isn't alone. Many scholars, archivists and lawyers agreed that Trump's interpretation of the Presidential Records Act was wrong. Here's Margaret again.

 

Margaret Kwoka: [00:25:36.63] I mean, first off, you know, think that's not in dispute, really. You know, presidents leave office. They leave their official powers behind. Right. And that happens at noon on Inauguration Day. The other piece of it is that, you know, the Presidential Records Act, if we're sort of talking about that half that half of this issue, it actually specifies procedures for taking account of former presidents interests, but does not give them the ultimate authority to make a decision about access to records. It gives that ultimate authority to make a decision to the current sitting president because the interests that are being protected are the institution of the presidency, not the individual president. Right. And so, um, you know, it contemplates a role for input on certain issues of a former president. If records are requested and haven't been made public, but does not give them the authority to make the ultimate decision.

 

Hannah McCarthy: [00:26:33.49] And here's the thing. The issue the Justice Department had was not about whether the records Trump took were presidential or not. It was about the fact that some of those documents contained classified information, which is a whole other complicated matter entirely, one with much more serious legal implications. And by the way, we will have an episode on classified documents and what they mean in this case soon.

 

Margaret Kwoka: [00:26:59.23] The Presidential Records Act actually says nothing about criminal penalties for mishandling classified information. So it obligates a president to transmit their official records to the archives at the end of their term and to maintain records to not destroy them during their term. So that's one set of obligations, but that's not the obligation that is alleged to be violated in the indictment, which is under a totally separate statutory provision that concerns conduct that poses a risk to the security of the United States. In terms of mishandling classified information.

 

Nick Capodice: [00:27:31.96] So the Presidential Records Act wasn't even really part of this whole issue in the first place.

 

Hannah McCarthy: [00:27:36.34] The process of turning over government documents, the thing that a president is expected to do at the end of their term is what set this off. The National Archives realized that certain things were missing and that some of those things were classified and everything snowballed from there.

 

Margaret Kwoka: [00:27:54.52] So the Presidential Records Act was not invoked in the criminal investigation or in the indictment. What it is that is at issue, you know, mostly the charges concern violations of what is known as the Espionage Act. This is a World War one era law, which, although it sounds like it's about spying, is actually mostly about the handling of national defense secrets. In the past, it's mostly been used to prosecute leakers. So folks who have access to government secrets and who leak them either to the public or to the press, but it also has been used against individuals who have access to government secrets and have mishandled them. And that's the provision of the law that's at issue in the indictment against former President Trump. And specifically, that provision says, you know, someone who has access to these kinds of national defense secrets and willfully retains them or fails to deliver them in a way that is essentially mishandling those secrets. And that's the piece that is most at issue. There's also a couple of charges that are concerning obstruction of justice. So interfering with the investigation itself and another ancillary matters. But most of the charges are really about simply mishandling national defense secrets.

 

Nick Capodice: [00:29:22.42] Okay. So while there might be a problem with Trump keeping records that weren't his, the bigger legal problem in the eyes of the Justice Department was that some of those records contained sensitive national security information that Trump mishandled after he left office. Yeah.

 

Margaret Kwoka: [00:29:38.74] So it's it's really the creation of risk that that this provision is intended to address where someone who has access to these secrets is keeping them in unsecured locations, keeping them longer than they're entitled to have them in ways that, of course risk someone accessing those secrets because they're not being properly stored. So that's really what's at issue in the indictment. The reason the Presidential Records Act keeps coming up in these conversations is because there's been sort of a theory floated out there that actually the relevant law shouldn't be the Espionage Act, but should be the Presidential Records Act and that law. Does, in fact, govern president's conduct, but is not the only law that governs president's conduct. And so I think one way of thinking about this is, you know, all people, including presidents, have obligations that stem from different different legal provisions. Right. It's not like we only have one law that applies to us. And so, yes, there are obligations that stem from the Presidential Records Act. Those just aren't the ones that are alleged to be violated in this case. And so that's why here, you know, the Presidential Records Act just doesn't really bear on these charges.

 

Hannah McCarthy: [00:30:59.09] And like we've said already, we'll talk in a later episode about the legal provisions around classified documents. But even though the Presidential Records Act was not invoked in the criminal charges against Trump, it's still important to this story because it says that presidential records are public property that should be valued and protected. And Trump did not treat those records the way they were expected to be treated.

 

Trudy Huskamp Peterson: [00:31:24.50] Let me say one thing about the press coverage. The press has focused heavily on the national security documents that were found in Mar a Lago and apparently in Bedminster. Um, but in my view, it's a different issue. Is the fact that the president took public property and did not obey the law. And it is both the classified material, but it's also the unclassified that he took. And this is unacceptable, I think, for a democratic system which relies on goodwill of people to follow the law.

 

Hannah McCarthy: [00:32:07.31] And even the work of archiving is changing. There are still norms that presidents are expected to adopt.

 

Trudy Huskamp Peterson: [00:32:14.63] The idea of the physical presidential library now is changing. President Obama decided he did not want to have one that was run by the National Archives. And so, unlike his predecessors since Hoover, his presidential records are in the custody of the National Archives but are in a National Archives facility, not a presidential library.

 

Hannah McCarthy: [00:32:41.12] Obama did not set up a traditional presidential library, but he still made plans with the National Archives to ensure there would be a system for them to be made available to the public in the future. What Trump did is different.

 

Trudy Huskamp Peterson: [00:32:54.77] When President Trump was in office, to the best of my knowledge, he did not make any provisions for where or whether he wanted to have such a facility. And so at the end of the administration, the records came to the National Archives, which are managing them. He complained or one of his surrogates complained that it was the National Archives fault because they didn't move the records down to Florida where they knew he was going to be living. Mistake. That isn't the way it works. The president has to determine where he wants such a facility and the president or the president and his friends have to construct such a facility and make it available for the operation of the National Archives. So that was just a backwards view of how these facilities get constructed in various places.

 

Hannah McCarthy: [00:33:50.19] Sometimes breaking from the norms isn't a bad thing. Perhaps presidential libraries are evolving as the footprint of presidential records evolves. That also means that future generations will understand this moment in history only through the lens of what we right now value enough to preserve.

 

Trudy Huskamp Peterson: [00:34:10.11] The value of the presidential library system as it has operated prior to Obama, was that the libraries also went out and obtained a lot of material from other people in the administration, other private sources and things from the president's family associates, often from political leaders that were involved in the administration and brought all that together as one place where researchers could come and look at the presidents, see in large terms whether or not that will go on with the Obama and Trump changes is hard to know at this point.

 

Archival President Clinton: [00:34:59.87] We have a way to save money through streamlining that does not require us to deprive our children of food. Instead, instead of cutting food, we're going to cut the cutlery. And here's how with a spork. You know, I don't know how many of you know that I've been eating off these things for years.

 

Archival President Clinton: [00:35:19.48] I never knew they were called sporks.

 


 
 

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What Moore v Harper Means for Elections

In June 2023, the Supreme Court determined that states do not have independent and exclusive authority when it comes to federal election rules. By the time they issued the majority opinion, it no longer mattered in the state that started it all. 

So what happened in Moore v Harper? What is (or was) the Independent State Legislature Theory, and what other powers did the court vest in itself in this opinion?

Carolyn Shapiro, founder and co-director of Chicago-Kent's Institute on the Supreme Court of the United States, is our guide.


Transcript

Hannah McCarthy: [00:00:01] You're listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:00:04] I'm Nick Capodice.

Archival: [00:00:08] We'll hear argument this morning in case 21 1271 Moore versus Harper. Mr. Thompson.

Archival: [00:00:14] Mr. Chief Justice. And may it please the Court.

Hannah McCarthy: [00:00:21] Nick, a recent Supreme Court case and by recent in case you are listening in the future, I mean, June 20th, 23 had a lot of people [00:00:30] holding their breath because if the court ruled in a certain way, it would mean affirming a pretty radical theory about the Constitution.

Nick Capodice: [00:00:41] A theory?

Hannah McCarthy: [00:00:43] Which, you know, it's in the name is just an unproven idea.

Nick Capodice: [00:00:47] Science. We're scientists.

Hannah McCarthy: [00:00:49] We are scientists! Unproven until the Supreme Court says otherwise.

Archival: [00:00:55] Justice Kagan.

Archival: [00:00:56] If I could, Mr. Thompson I'd like to step back a bit and just, you [00:01:00] know, think about consequences, because this is a theory with big consequences.

Nick Capodice: [00:01:04] Well, what is this theory exactly?

Hannah McCarthy: [00:01:09] It has to do with a certain interpretation of the elections clause in the Constitution. Let's bring in our expert here. This is Carolyn Shapiro.

Carolyn Shapiro: [00:01:19] I'm a law professor at Chicago-Kent College of Law. I teach constitutional law, among other things. And I am also the founder and co-director [00:01:30] of Chicago-Kent's Institute on the Supreme Court of the United States. And I also am the faculty director of a civic education project called the Constitutional Democracy Project. Yeah. I should also add that I filed an amicus brief. I always sometimes forget to say that, but I know it's important for journalists to know that.

Nick Capodice: [00:01:52] Carolyn filed an amicus brief for this case?

Hannah McCarthy: [00:01:55] Yep, she worked on one alongside two other constitutional law professors.

Nick Capodice: [00:01:59] And we should [00:02:00] remind our listeners, an amicus brief is otherwise known as a friend of the court brief. So lawyers, historians, civil rights organizations, all sorts of people and groups can come together to send the court what is basically a term paper arguing for implications of Supreme Court cases, like what they're worried about, what they hope to happen. Et cetera.

Hannah McCarthy: [00:02:22] Right. So the reason that Carolyn needed me to know that as a journalist, if you have filed an amicus [00:02:30] brief in a case, you've chosen a side before the case is even heard by the court, and this was Carolyn side.

Carolyn Shapiro: [00:02:39] Well, so the brief was really focused on some of the implications that would flow from a ruling in favor of the independent state legislature theory, some of the ways in which it would disrupt the way elections operate, the way people, elections, officials, legislatures, everybody [00:03:00] has assumed that they operate for really hundreds of years. It was very much a focus on the potential negative consequences of endorsing the independent state legislature theory.

Nick Capodice: [00:03:15] Independent state legislature theory. So I'm going to assume that this is the theory you're talking about. That's at the center of the Moore v Harper case.

Hannah McCarthy: [00:03:23] It is.

Nick Capodice: [00:03:25] Now, I've not heard of this. So what does it actually mean?

Carolyn Shapiro: [00:03:28] The independent state legislature theory [00:03:30] says, well, if you look at the federal constitution, it says that the state legislature shall determine the time, place and manner of congressional elections, although Congress can override that. And because the federal Constitution expressly uses the term legislature, it means that the legislature of the state can't be limited in any way by the state constitution, can't really be checked by the state [00:04:00] judiciary, that the normal checks and balances that apply to things that state legislatures do don't apply. So that was the issue that went to the US Supreme Court.

Hannah McCarthy: [00:04:11] Now, okay, we'll get into what the court has to say about that argument, but here is why it was being made. We talk about redistricting a lot.

Nick Capodice: [00:04:21] Yeah, we do, because it's a big deal.

Hannah McCarthy: [00:04:23] Sure is. Every ten years, either the state legislature or an independent commission redraws [00:04:30] election district lines based on the census on population size. So the idea there is, given the limited number of members of Congress.

Nick Capodice: [00:04:40] 435.

Hannah McCarthy: [00:04:41] Right, 435 it wouldn't be fair if districts were drawn in such a way that a city of a million people was represented by the same number of legislators as a town of 20,000.

Nick Capodice: [00:04:55] Right? That would be called malapportionment.

Hannah McCarthy: [00:04:57] It would. And then there's something [00:05:00] else that can happen.

Nick Capodice: [00:05:01] Everyone's thinking it, Hannah. I'm just saying it. Gerrymandering.

Hannah McCarthy: [00:05:05] Go ahead and listen to our episode on that to learn more. But the idea there is that district lines are drawn to favor one party over another. And this practice, gerrymandering, it's not really something that a legislative body usually admits to.

Hannah McCarthy: [00:05:22] Except this time they 100% did.

David Lewis: [00:05:31] We [00:05:30] want to make clear that. We to the extent are going to use political data in drawing this map. It is to gain partizan advantage on the map. I want that criteria to be clearly stated and understood.

Nick Capodice: [00:05:50] Wait, hang on. Who's that?

Hannah McCarthy: [00:05:51] That is Representative David Lewis, a Republican from North Carolina.

Nick Capodice: [00:05:55] And he just said explicitly that they were going to use political data to gain [00:06:00] partizan advantage.

Hannah McCarthy: [00:06:01] He did.

Nick Capodice: [00:06:02] So they were just pretty upfront about it, saying the quiet part out loud.

Hannah McCarthy: [00:06:06] They were entirely upfront about it, which I mean, the reason this is really interesting is that for the longest time gerrymandering has been happening with this sort of, you know, Oh yeah, look at that. How did that happen? Feigned naivete. And at least in this case, they were like, Yeah, no, we are definitely going to draw the districts to favor the Republican [00:06:30] Party and draw the districts like that. They did.

Carolyn Shapiro: [00:06:38] Republicans have an overwhelming majority in the legislature right now. They have a supermajority in the legislature. And this was challenged in the North Carolina courts as violating the North Carolina constitution. And the North Carolina Supreme Court said that it did. They said that [00:07:00] the North Carolina Constitution's guarantee of free and fair elections, the North Carolina Constitution's guarantee of free association and other provisions meant that this kind of extreme partizan gerrymander was unconstitutional. The leaders of the legislature went to the US Supreme Court. Normally, when a state Supreme Court says this is what our state constitution means, the discussion is over. The federal [00:07:30] courts have nothing to say about that. But the independent state legislature theory proposes that that's not the case in the context of redistricting.

Nick Capodice: [00:07:41] All right. Let me see if I've got this right. The case was taken to the Supreme Court to settle this question of independent state legislature theory, which basically says that checks and balances when it comes to the legislature and elections like the state Supreme Court saying your gerrymander is unconstitutional, those don't apply [00:08:00] because the US Constitution says that states can determine the time, place and manner of elections full stop, and.

Hannah McCarthy: [00:08:07] That state legislatures do not have to allow the state Supreme Court to review their election changes. And just to give you an idea of what that would have actually meant if the court had upheld this specific interpretation of the independent state legislature. Here's Justice Kagan during the oral arguments.

Speaker5: [00:08:28] It would say [00:08:30] that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that. Even if the courts think that that's a violation of the Constitution, it would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to [00:09:00] insert themselves to give themselves a role in the certification of elections and and and and the way election results are calculated.

Nick Capodice: [00:09:12] Okay. Hannah, you said that if the court had upheld it, which must mean that they didn't.

Carolyn Shapiro: [00:09:18] Right. The Supreme Court said no. The Supreme Court said, look, a legislature is a creature of a state constitution. And when the federal [00:09:30] Constitution was written and ratified, it was well established that state constitutions could limit what legislatures do and that state courts engaged in what we call judicial review to determine if what state legislatures were doing was consistent with the state constitution. Everybody understood that at the time the federal Constitution was was written and ratified. And so that's what it means. So the Supreme Court rejected the independent state [00:10:00] legislature theory, or at least it rejected the most extreme form of the independent state legislature theory, which was to set state legislatures completely free of the normal limitations imposed by state constitutions.

Hannah McCarthy: [00:10:19] It was a 6 to 3 decision with Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissenting. And we're going to get into that dissent after the break.

Nick Capodice: [00:10:27] But before we do, a friendly little [00:10:30] reminder that Civics 101 is public radio. Free to you. Always has been, always will be. It is yours. Please take it. And while you will hear ads on the show from time to time, because we got to find other ways to keep the lights on, our most significant and reliable source of support is you, our listeners.

Hannah McCarthy: [00:10:48] That's right. Believe you me, we definitely could not exist without listener support. Like, poof, we'd be gone.

Nick Capodice: [00:10:55] So if you're in a position to do so, do consider keeping us around. My friends. [00:11:00] You can make a contribution to the show by going to Civics101podcast.org and clicking on the donate button every little bit. Genuinely, seriously. I mean, it majorly helps. We're back. You're listening to Civics 101 and Hannah, just before the break, you mentioned that Moore V Harper was a 6-3 decision with a dissent worth talking about. So can I just ask, what was [00:11:30] the nature of the dissent? If the court determined that state legislatures do not have independent power over federal elections? Did the three dissenting justices argue that states do have that power?

Hannah McCarthy: [00:11:43] No, they didn't go that far. Actually, the dissent is interesting because of what happened in North Carolina before this case was heard by the court.

Archival: [00:11:52] The state Supreme Court just released three key decisions. The court's Republican majority is reinstating the state's voter ID law that [00:12:00] passed in 2018. They've also overturned a previous decision related to Partizan gerrymandering. In that case, when the court had a Democratic majority, they found Republicans had illegally drawn electoral districts to benefit their party. The third decision would end voting rights for convicted felons.

Hannah McCarthy: [00:12:16] So in the dissent, Clarence Thomas, who wrote it, basically says that the court shouldn't have heard this case at all because it's a moot point. He argues that because the North Carolina Supreme Court reversed its decision [00:12:30] and said that the legislature can, in fact, gerrymander their maps, it doesn't matter what the court has to say on the independent state legislature theory.

Nick Capodice: [00:12:39] So the North Carolina court said partisan congressional redistricting is okay.

Hannah McCarthy: [00:12:46] They did. And I should be clear, the Supreme Court has ruled on a number of cases related to congressional redistricting, but it has not said cut and dry that partizan maps are unconstitutional. [00:13:00] Okay. One last thing about the decision itself. As you might know, Nick, the Supreme Court has a tendency to go above and beyond when it writes its opinions. Like it might make a ruling on a case and then throw in a, oh, by the way, here's this other thing that's true.

Nick Capodice: [00:13:21] Absolutely. My favorite example of this being Marbury v Madison, when the Supreme Court said, oh, and by the way, while we're at it, we [00:13:30] are the final arbiters of constitutionality in this fair nation. We're the ones who say what the supreme law of the land actually says and how and where it applies.

Hannah McCarthy: [00:13:40] Bingo. So in Moore V Harper, the court added this little lagniappe.

Carolyn Shapiro: [00:13:45] But the Supreme Court said is that if a state court just goes really so far off the rails that it is maybe taking unto itself the role of the legislature in some way or somehow not acting as a [00:14:00] court that the Supreme Court could step in. What exactly that means and how broad that loophole is, nobody really knows for sure. It should be, in my view, a very narrow set of circumstances where the Supreme Court would say, wait a minute, this state court has just completely gone off the rails. But that would have to be in a situation [00:14:30] where what the state court did just can't be reconciled with what courts do generally, which is different from a situation where there might be a difference of opinion about the right answer among judges and jurists, where there's a disagreement about the right answer. But there are maybe majority opinion and dissenting opinion that should not give rise to the kind of triggering this this particular [00:15:00] form of oversight.

Nick Capodice: [00:15:01] All right, Hannah, I am honestly not sure what that means.

Hannah McCarthy: [00:15:04] What this means is in this case, the United States Supreme Court affirmed that the North Carolina Supreme Court could review legislative changes to elections and could deem those changes unconstitutional because state legislatures do not have absolute independent uncheckable power over federal election rules. However, if in the future, a state Supreme Court does something that [00:15:30] the federal Supreme Court deems a major overstep. Well, the United States Supreme Court has asserted that it can intervene.

Carolyn Shapiro: [00:15:39] We don't know for sure how broadly the Supreme Court is going to use that power. The language that it used in the opinion suggests that it's going to be a very rarely, if ever, invoked authority. It uses language like beyond the bounds of ordinary judicial review, which suggests [00:16:00] to me something that's just completely non-judicial.

Hannah McCarthy: [00:16:04] Ordinary judicial review, by the way, being a very necessary check that the judiciary plays on the legislative and executive branches of the government. Basically, a court can invalidate the action of another branch of the government if it determines that the action is unconstitutional or against the law in some way. And Carolyn is saying that the Supreme Court is unlikely to intervene in that judicial review [00:16:30] unless a state court, for example, seems to be doing something like she said, that is non-judicial, not within their power.

Carolyn Shapiro: [00:16:38] But we won't know for sure until we see what happens. And the the danger is that in the middle of an election, when these issues sometimes arise, when emotions are running very high, when things have to be decided very quickly. And when we know who's [00:17:00] going to benefit from the particular ruling in one direction or another, the danger is that the court might or some of the justices might see it as their role to step in if they just disagree with what a state court did.

Hannah McCarthy: [00:17:15] Again, Carolyn doesn't see this as likely to happen, but we honestly don't know. And she says it wasn't really until 2020 that courts exercising review over election rules became something that people questioned the constitutionality [00:17:30] of. One example she cited was when the Pennsylvania Supreme Court moved the date by which mail in ballots had to be received, and some argued that in doing so, they were taking power away from the Pennsylvania state legislature.

Carolyn Shapiro: [00:17:44] Since the beginning of the Republic, states have had constitutional provisions that limit what legislatures can do when it comes to federal elections. And nobody's ever thought that that was unconstitutional until this [00:18:00] argument bubbled up during the 2020 election. It's also important to say that what the Pennsylvania Supreme Court did was not particularly unusual. It was exercising what's known as equitable power. It was exercising power that allows it to remedy a situation under particular circumstances and is consistent with things the Pennsylvania courts have done in other contexts. With elections, for example, if there's some kind of natural disaster that [00:18:30] requires Election Day to be halted or moved or extended in some way. Those are those are equitable powers that the courts have and that the Pennsylvania Supreme Court wasn't doing anything particularly unusual. What made it what made it controversial in 2020 was that mail in ballots were controversial, but not because what the court was doing was so unusual.

Nick Capodice: [00:18:59] Or so Hannah, does [00:19:00] Carolyn think we're going to see questions like this keep coming up. She mentioned emotions running high around election season. And certainly in the last federal election, we did see some high emotions and some serious challenges to the results of the election. Does she think the court is going to have to keep answering questions about election rules?

Hannah McCarthy: [00:19:20] Oh, she sure does.

Carolyn Shapiro: [00:19:28] The issues that might arise if [00:19:30] there are arguments about how to interpret a particular statute or whether a broad reading of a state constitution invalidates some other some part of another statute. Those arguments will persist. I think it's more likely that we will see those types of arguments brought by campaigns and parties as opposed to by legislatures or legislators. But it's impossible to know for sure. The reason [00:20:00] campaigns and parties are more likely to bring those claims is because when there's a dispute about how a particular election law should be interpreted or whether a particular election law is constitutional, under the state constitution, there's going to be one side, usually one candidate or one party that thinks it's to their advantage for that argument to come out a particular way. That's very often how these types of cases end [00:20:30] up getting litigated. So a disappointed candidate is going to have every incentive to argue that the state courts have gone beyond the bounds set for them in Moore versus Harper.

Nick Capodice: [00:20:44] So now that the Supreme Court has said that there are bounds to what a state court can do, we may very well see candidates saying, hey, look, they crossed those bounds. Supreme Court justices, please intervene.

Hannah McCarthy: [00:20:59] One [00:21:00] could argue that giving yourself judicial superpowers is a double-edged sword.

Nick Capodice: [00:21:04] You know, my judicial superpower would probably be invisibility.

Hannah McCarthy: [00:21:07] I also always go with invisibility. We are journalists, though, and we should probably make note of the fact that the Supreme Court does not have the ability to turn invisible.

Nick Capodice: [00:21:17] To our knowledge.

Hannah McCarthy: [00:21:18] To our knowledge. This episode was produced by me. Hannah McCarthy with Nick Capodice. Christina [00:21:30] Phillips is our senior producer. Rebecca Lavoie is our executive producer and music in this episode by Ferrell Wooten, Vivy Campos, El Flaco Collective, Nihoni and Ryan James Carr. New to Civics 101? Welcome. We love you. Not new, but here because you're already a fan. Welcome back. We love you. Either way, if you don't subscribe to our newsletter, are you even a Civics 101-er you can do that right now? It's genuinely fun and it will never spam your inbox and it will be the thing you actually look forward to opening. I promise. One [00:22:00] time I didn't know what to write, so I just wrote about Harriet the Spy, but in a civics way, it's that kind of thing. Subscribe at civics101podcast.org and while you're there you can find everything else we have ever made. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

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

This podcast is a production of New Hampshire Public Radio.

Civics Education 1: What Do We Teach?

Today is the first part in a series about the state of civic education in the US. In this episode, we gauge how we're doing civics-wise and then delve into the perpetually controversial history of history; have we ever agreed upon a narrative for our nation that we can teach students?

Walking us through the past, present, and future of social studies and civic education are Danielle Allen, James Bryant Conant University Professor at Harvard University, and Adam Laats, Historian and Professor of Teaching, Learning and Educational Leadership at Binghamton University. 


Transcript

C101-Ed1.mp3

Archival: To parent teacher meetings goes many a bewildered oldster. Now, hold on, Miss Fox. It's all very well to teach my boy to paint pretty pictures and build birdhouses. He doesn't even know his multiplication table.

Archival: For the meeting. The protesters were outside and held up signs saying they don't want JC to teach critical race theory because they won't let us speak. That's what communism does. I am horrified that teachers are targeted for the basic work that they do to provide students a safe space to [00:00:30] be themselves. The Western culture and values that brought forth Christianity and the founding documents are being called evil and racist today.An overwhelming majority of US educators are convinced that these new teaching methods are best equipping today's youngsters for today's world.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today is the first in a two part series on civics. Teaching civics. And I'm going to start with a massive [00:01:00] caveat here, I am not just talking about civics education. I'm also talking about social studies. And that's sort of the umbrella term for civics, history, economics, geography and at times other things, depending on what state you live in, because education is a prime example of federalism. It varies so much from state to state. So today we're going to look into the history of teaching history in the US. The question of who gets to choose, what gets taught, and finally learn what's going on in American classrooms [00:01:30] Right now. In these episodes, we're going to learn about divisive concepts, laws, curricula, frameworks, standards and the relationships between teachers, students, parents and the government.

Hannah McCarthy: Ooh, where do you want to start?

Nick Capodice: Where do you think we should start?

Hannah McCarthy: Well, of course, want to know about the history of teaching history in the US. We say all the time how students today are learning about things you or I were never taught. But first, can we do a sort of bird's eye view [00:02:00] of the state of civics education in America? How are we doing?

Nick Capodice: Well, the answer is we are doing well in some regards and not so well in others. One of the most often quoted statistics by me at least, came from Danielle Allen. Danielle is the James Bryant Conant University professor at Harvard and director of the Allen Lab for Democracy Renovation.

Hannah McCarthy: And is this the stat about how much money the federal government spends on civics education per student in the US?

Nick Capodice: Yeah, that one.

Hannah McCarthy: So for those who [00:02:30] haven't heard Nick or me say it before, here we go. The federal government spends about $50 per student per year on Stem education. That is science, technology, engineering and math. But when it comes to civics education, it spends $0.05.

Nick Capodice: That's the long and the short of it. And this is no shade from us on Stem whatsoever by the way, we're just pointing out this rather vast discrepancy. But I will get back to that statistic, Hannah, because I have a very important update to it. [00:03:00] But Hannah and I both met with Danielle Allen in DC a few months ago, and we asked her why, why so little money for civics? And here's what she said.

Danielle Allen: For me, one of the most important data points to keep in mind is the difference between generations in this country for degree of commitment to democracy. When you look at the cohort that was born before World War Two, about 70% of that generational cohort considers it essential to live in a [00:03:30] democracy. When you look at the age cohort that's about 40 and younger, not quite 30% consider it essential to live in a democracy. So that's how serious it is. You can't have a democracy if people don't want one. We have somehow failed to do the sort of generational hand-off, passing on of an understanding of and commitment to our democracy. So from my point of view, that's what we have to reverse. We need to get back to a place where [00:04:00] the supermajority of rising generations of Americans considers it essential to live in a democracy. You can't do that without civic education.

Hannah McCarthy: One of the things we hear most frequently from listeners, especially those who went to school in the 70s and the 80s, is that they feel that they learned a lot of civics in high school, but that there is less civics education today.

Nick Capodice: Yeah, and that's not like a trick of winsome back in my day nostalgia. That is the truth.

Danielle Allen: We did used to routinely require several [00:04:30] semesters in high school of government or civics and the like, and at other levels those requirements have really dropped off over the last 50 years and a good way of capturing that is that as of about two years ago, we had hit rock bottom.

Hannah McCarthy: Rock bottom being that $0.05 per kid per year on civics education.

Nick Capodice: Yes, but things are looking up in 2023.

Danielle Allen: The good news is we have actually reversed that dynamic. Now we're up to $0.50 per kid on civic education. [00:05:00] All right. So, hey, we're moving in the right direction now. But look, look, now we can say we hit bottom, right? Because we've turned. We've turned it. We turned the corner. We've gone up from $0.05 to $0.50. So that's better than a poke in the eye. You know, I'm glad about that. And I see it as a sign of all the hard work that educators and scholars and families are putting in around the country that move from the $0.05 per year to $0.50 per year didn't happen by accident. There really is a growing grassroots movement of people [00:05:30] working to be civic educators, civic mending, doing work of knitting communities back together again, being confident pluralists, recognizing we have all kinds of disagreements, conflicts of viewpoint and so forth, but we can build relationships that permit us to workshop hard problems together.

Hannah McCarthy: Okay, so we've done better. We hit a low point in 2021, but due to the work of many people, we are doing better now, civics education wise.

Nick Capodice: Yes and no. I [00:06:00] hope to have a clearer answer to that by the end of this series.

Hannah McCarthy: I hope you do too, Nick. So one thing I want to know a bit more about is who decides what gets taught in a classroom.

Adam Laats: The Unescapable answer for who decides? Is it totally, totally depends.

Nick Capodice: This is Adam Laats. He is a professor at Binghamton University and studies the history of education.

Adam Laats: There's a million factors and it depends on the kind of school. But let me now can I can ask you questions. [00:06:30] So like where did you go to school? Like elementary school? What kind of school?

Hannah McCarthy: Where did you go to elementary school Nick?

Nick Capodice: Well, I moved around a lot Hannah but when I took civics and social studies, I was in eighth grade at Merrimack Valley Middle School. I had a wonderful teacher named Mr. Zecha, to whom I will forever be indebted for introducing me to All the President's Men.

Archival: I happen to love this country. You know, we're not a bunch of zanies out to bring it down. Sorry. Weren't you arguing the opposite way? What, am I, crazy?

Adam Laats: But the states have a say in deciding [00:07:00] factor in what standards. And Mr. Zecha is responsible to look at the standards. But there is very little actual measure of what Mr. Zecha chooses to do on any given Thursday in April. Say there are standards, there's frameworks in every state. A lot of states have a variety of of standardized tests to evaluate, not so much in history and civics, but in other subjects. And some like in New York, we [00:07:30] have history and civics.

Nick Capodice: Now, I've read a lot of these frameworks. They've helped guide what episodes we choose to do, but again, they vary wildly from state to state. Some haven't been updated in decades and there is no national set of standards.

Adam Laats: And so the state is the biggest input. Teachers are a big input, parents are a big input. But also and this is the one that mostly gets ignored, students are a big input. You go school to school when you're a student. In eighth grade, you didn't feel like you had any say. I didn't feel like I had any say in Mr. Tully's class [00:08:00] in seventh grade, but we certainly do. And the best test of this is ask any teacher anywhere, any time. It's the biggest determinant of what they decide to do. Like, well, I'll do that in my third period class, but there's no way I could do it in fifth period, The fifth period kids just will not do the homework or whatever. So who decides? The first and most obvious answer for what's supposed to happen is the state. The second most important answer is really the teacher. But none of [00:08:30] these people get to say, it's all a negotiation. It's an endless indirect negotiation based on all the factors, you know. So a teacher, Mr. Zecha, is going to say, okay, well, if I teach my kids about the My Lai massacre today and my, is my principal going to get a phone call saying that I'm, you know, doing some sort of hippie stuff and they don't like it or vice versa. So parents have a say. Teachers have a big say. The state has the biggest say.

Hannah McCarthy: Some of the most heated [00:09:00] debates that we hear about nowadays when it comes to what gets taught in schools are about social studies. Was there ever a time when everyone agreed that this is the history we teach, This is the narrative about America that we all share? Et cetera.

Nick Capodice: Honestly, no. But that is not for want of trying. After a quick break. We're going to talk about the attempts and failures to have a national standard for civics and social studies. [00:09:30]

Hannah McCarthy: But let me just jump in here before that break to say that Civics 101 is a listener supported show and we depend on that support from you. You write there, listening to this, if you believe in our mission, please head over to our website, civics101podcast.org and make a gift in any amount. It means the world to us. And while you're there, check out the dozens and dozens and dozens of activities and lesson plans made by us and teachers across the country to pair with our episodes.

Hannah McCarthy: We're [00:10:00] back. We're talking about the history of civics and social studies education in the US. And Nick, you were about to tell me about the attempts to make a national curriculum for teachers and students.

Nick Capodice: I was indeed. And to do this, we've got to start at the very beginning.

Adam Laats: The 1840s. We see it the early 1800s. We see it with a new country. This idea that kids have to learn to be whatever American [00:10:30] is, they have to learn to be it. And schools could should do it.

Nick Capodice: Again, this is Adam Laats from Binghamton University.

Adam Laats: This is where our modern public schools come from, is the sense that the patchwork of schools in the early 1800s and cities was leaving a lot of kids outside of school. And it wasn't just sort of for their good, it was because this idea was everybody has to be an American for this to work. And apologies for how offensive this is. A big part of the idea was that certain classes of people [00:11:00] would have a hard time being, quote unquote, real Americans. So Catholics were a big target of this kind of education. It was assumed that Catholics were, by nature, servile and un-Republican.

Hannah McCarthy: Catholics.

Nick Capodice: Catholics, your ancestors and mine McCarthy

Adam Laats: They weren't independent. They listened to the pope. They did whatever the pope said. They couldn't be American. It was also assumed and again, apologies for how grossly offensive this all is. Same thing was assumed of East Asians [00:11:30] like Chinese, for example, were assumed by elite white policy makers to be maybe incapable, but certainly more difficult of becoming the right kind of American. So there's a lot of targeted education attempts to get Catholics, African Americans, East Asians, especially, to sort of like fix them. Now, to be clear, in an early generation, they had said these same kinds of things about poor [00:12:00] white Protestant kids. You know, it was the different generations sort of realigned their targets. It it went from white Protestant kids to Black freed people after the war, after the Civil War, it went to, you know, Irish in the 1800s to Italians in the late 1800s and Slavs and, you know, different ethnic groups. So but and in the late years of the 1800s, East Asians as well, Japanese, Koreans, Chinese were always accused by white elites of somehow [00:12:30] being, you know, racially incapable or less capable of being the kind of American that a civic life required, you know, like responsible, hard working, depending on the group. But all these real negative racial accusations were just sort of part of policy making for for that whole stretch of time.

Hannah McCarthy: So it sounds like choosing what we taught history wise has, unsurprisingly racist, classist, discriminatory foundations.

Nick Capodice: Yeah, [00:13:00] from the absolute get go. And of course, teaching methods were different back then too. There was a lot more memorization of dates and recitation of famous speeches and stuff like that. And there was no honest exploration or any exploration at all of our flaws.

Hannah McCarthy: When did that change?

Adam Laats: The biggest and most famous story is from World War Two. At the start of US involvement in World War Two, there was this this attempt to redo social studies and civics [00:13:30] at and it was from a famously progressive places like Teachers College, Columbia University. And it was a very popular idea and it seems kind of familiar. But this is the 1930, the challenges of the depression, of world war, growing of of of authoritarian rule, growing people like Harold Rugg and George Counts, who were scholars at the teachers college. They said, we need all the schools need to get on board. All the US schools need to get on board. And we can't just read [00:14:00] a list of heroes with dates to kids. That's not enough. We need to make every kid. It's no surprise the language comes back. We need to make every American kid an active citizen. And that means teaching kids not just like a list of facts to memorize. It means teaching them to question the power structure in the classroom itself. It means teaching kids that America didn't happen because George Washington magically was was honest [00:14:30] and chopped down a cherry tree. And then Lincoln was supernaturally honest and saved... Not that. The textbooks were designed to teach American kids that it depended on you and in your community stepping up and challenging injustice, which was throughout American society against racial minorities, against lower income people.

Hannah McCarthy: How did this new idea go over.

Nick Capodice: About as well as you'd expect.

Adam Laats: So right here where I am in Binghamton, New York, the school board, once this. Once these ideas [00:15:00] became well known that these books were teaching a different type of history and civics school board members, three proposed a bonfire, you know, literally pulling the books out of schools and burning them. In 1941. When the Nazis, the you know, the Nazis, not like somebody, but the actual real life Nazis are burning books in Germany. The US is also burning books.

Nick Capodice: Do you remember your US history textbook?

Hannah McCarthy: Sort of.

Nick Capodice: What was it like?

Hannah McCarthy: I'll tell you, I only [00:15:30] studied primary sources in high school. Which was kind of cool. My history book in eighth grade was pretty thick and kind of all over the place and didn't go too in depth into any one thing or another. It's covered it all.

Nick Capodice: Yeah. Mine in high school was massive. It was over a thousand pages and it came with a study guide, also a thousand pages. And Adam talked with me a lot about textbooks and the textbook industry, which I can't get into here, but it is fascinating. And he said why they're so [00:16:00] darn big.

Adam Laats: I think by and large, it's still the norm to have these monster textbooks. And I bring it up because that's been the story as every group as sort of like Irish Catholics went from, you know, a despised minority to a powerful, large minority. The story of Irish Catholic has been put into the standard US history book. So the history of textbook grows when that happens. But what doesn't get put in there is the idea [00:16:30] that America is, you know, birthed in turmoil. Instead, the story that gets put in there is heroic Irish Catholics pushed and pushed and pushed against injustice until they were accepted as real Americans.

Nick Capodice: So Adam told me about a recent study done from Stanford University where they asked high school students to name the most famous people in US history who weren't presidents or first ladies.

Adam Laats: And overwhelmingly, the students identified three [00:17:00] people by big majorities. Number one, Dr. King. Number two, Rosa Parks. Number three, Harriet Tubman. Two prominent civil rights leaders from the 20th century, one anti-slavery militant from the 19th century. So this is how history and civics has worked. Yes, Black Americans are able to add in by decades of activism. It doesn't just, it's not a gift, but they're able to be added into the sort of standard story as long as they don't challenge the standard story, [00:17:30] which is that America, when it has a problem, Americans heroically overcome that problem. So Harriet Tubman's invited into the sort of humongous textbook ever growing textbook because it allows the history story to be America. It was terrible. There was slavery. But Americans like Harriet Tubman bravely fought against slavery and eventually overcome it. Every group is allowed to add themselves to the story as long as it remains a story of [00:18:00] heroic overcoming of injustice. Instead of being a holy cow, America is fundamentally unjust. That's something that literally gets books burned.

Archival: Proponents of SB 1300 say they're fed up with what they consider to be inappropriate books and other materials being shown to students in public schools...My concern is that some of these materials are not age appropriate and forcing these conversations with students that are not age appropriate.

Nick Capodice: Other subjects have far [00:18:30] more consistent standards , STEM specifically. And part of the reason for that was a massive push after the Soviet Union launched Sputnik in 1957.

Hannah McCarthy: Right. This is when kids started getting massive amounts of homework. The US was trying to make young scientists and mathematicians to get ahead in the space race.

Nick Capodice: But that didn't really extend to things like history and civics. So state requirements for those subjects gradually dwindled. And then the next big national conversation [00:19:00] about those topics happened in 1990.

Adam Laats: So UCLA, Charlotte Crabtree, who was an education scholar, teamed up with Gary Nash, one of the most famous US historians at the time, and since, you know, still very famous and they were commissioned to come up with national history standards. Exactly for this reason, what does every American kid need to know about US History. And they did. It was it was funded project. They put [00:19:30] it together. It was not just a couple of people in a garage. It was, you know, a well-funded attempt to do exactly this. Let's make it so that American kids are all learning the same history, civics, social studies stuff.

Nick Capodice: The creation of these new history standards was led by one Lynne Cheney.

Hannah McCarthy: The Lynne Cheney second lady to Dick Cheney during the George W Bush administration and leader of the crusade against explicit lyrics in songs.

Nick Capodice: The very one Hannah. Though to be fair, it was [00:20:00] a different second lady, Tipper Gore, who got the parental advisory stickers on CDs. But anyways, Lynne Cheney at that time was the chair of the National Endowment for the Humanities. And when these standards were revealed to her, she was aghast.

Adam Laats: And the line from the standards that became so popular was that these new standards were supposed to have more about Bart Simpson than George Washington. You know, the accusation was that if you were white, if [00:20:30] you were a man, if you were a famous hero, the standards didn't let you in.

Nick Capodice: Rush Limbaugh and other talk radio personalities excoriated these standards. Political correctness was the accusation levied against them? Limbaugh himself said famously, History's real simple. You know what history is. It's what happened.

Hannah McCarthy: And I feel like I can say with confidence that history is not really simple. The quest to learn what happened is unending and the life's work of a good many people. [00:21:00]

Nick Capodice: And the other famous accusation, the one that Adam referenced earlier, the direct quote was what is a more important part of our nation's history for our children to study George Washington or Bart Simpson. That was said by Senator Slade Gorton from Washington state and it spread like wildfire.

Hannah McCarthy: Was it accurate? Were kids learning more about Bart Simpson than George Washington?

Hannah McCarthy: Oh, absolutely not.

Adam Laats: And Gary Nash the authors, Charlie Crabtree. They said, well, you know what? No, they added up. In fact, I [00:21:30] was just doing this in class as well. I know these numbers. They added up in there in the defense of the standards mentions of people that people like Rush Limbaugh said weren't in them. And the group of sort of founding fathers had 7000 mentions more than all of the other people in the standards combined. You know, So the small group of founding fathers got more attention still in the new standards than all of the other humans of every background, every age, every ethnicity, [00:22:00] every whatever. But the accusation was and again, it sounds so 2022 or maybe, you know, 1619. The accusation was they were trying to make kids hate America by by taking away heroes. So it fizzled out. It didn't just fizzle. It exploded. It crashed and burned.

Hannah McCarthy: How badly did it crash and burn?

Nick Capodice: Pretty darn bad. The Senate passed a resolution killing it, saying any funding for the development of standards [00:22:30] should, quote, have a decent respect for the contributions of Western civilization. Now, I emphasize those words because Western civilization was and is frequently used as a thinly veiled term that means white people. So the resolution to kill the standards passed 99 to 1 and the one vote against it wasn't in support of the standards. It was by a senator from Alabama who thought the resolution should be more critical of the new [00:23:00] standards.

Hannah McCarthy: So this wasn't partisan. It was unanimous.

Nick Capodice: Absolutely unanimous. The senators didn't want any controversy. And these standards had become very controversial.

Hannah McCarthy: I just want to know what was actually in these standards that made everyone so furious.

Nick Capodice: Yeah, me too. Like, what did they say? So I asked Adam, Have you read them?

Adam Laats: I have read them. And they certainly weren't anything you know, sort of wildly ideological. To be fair, [00:23:30] though, I think as when I was reading them, I had been a history teacher for many years in high school and I had a PhD in US history and I think I was a very unrepresentative sample, but none of the ideas were anything but sort of right down the middle. Uncontroversial things that historians, academic historians, you know, they fight about everything, but not this stuff. You know, these were things that were beyond academic controversy, well established, non sort of [00:24:00] hot button issues. However, again, I don't think the problem wasn't history teachers and people with advanced degrees in history. It was a reputation of what the standards, you know, a false impugning of what the standards included, that they were anti-American, that they were anti-white. And most people, when they decided they didn't like it, they didn't say, well, I'll investigate and I'll go read the standards and I'll make up my own mind.

Hannah McCarthy: So [00:24:30] what's next? Adam mentioned the 1619 Project, a project headed by Nikole Hannah-Jones with the New York Times that centers on slavery and its relationship to our founding. And then there was the 1776 Commission established by Donald Trump in direct response to it so-called divisive concept laws. Laws that restrict teachers from teaching topics have been introduced in almost every state and passed in about half of them. What [00:25:00] is going to happen with civics education in the US?

Nick Capodice: You know, I don't know the answer to that, Hannah, but I'm going to look into it for the next episode. And before we go, I just want to leave everyone with a quote by Danielle Allen. That's who we heard from at the top of the show. I asked her, how do we decide in a very polarized moment in US history what to teach?

Danielle Allen: Well, we are in a challenging moment for sure. Right now, we perceive ourselves as being super polarized. [00:25:30] We perceive ourselves that way partly because there are conflict entrepreneurs out there, people who are literally trying to stir up conflict and division for the sake of profit in the media context, for the sake of personal power, in the political context. And against that, we really have to pose an alternative. The alternative of being confident pluralists, confident pluralists are people who can say, Look, the whole point of democracy is that people don't all agree with each other. You know, you don't need [00:26:00] government. You don't need politics. If everybody just always agrees all the time, we need democracy because we don't agree. And the whole point of democracy is to have structures that permit us to navigate our disagreements, break through to solutions, solutions ideally that are delivering peace and prosperity for all of us. So the question is, how do you make space for that confident pluralism? To live in disagreement, to be able to do that civilly, to build the relationships that can support that confident engagement with disagreement? That's really the work, I think, of civic [00:26:30] education. That's what we're trying to do. And so for the folks who say it's too hard, it's too polarized, it's too painful, and the answer is, look, the conflict entrepreneurs want you to feel that way. They're making money off that very feeling of discomfort and fear that you have. They are getting personal power off of that, and we need to claim space back for the healthy work of democracy. We need you here as a matter of civic responsibility.

Nick Capodice: Well, [00:27:00] that is how we choose what we teach and what we taught. You can subscribe to us on your podcast app of choice to make sure you don't miss the next episode. This one was made by me Nick Capodice with you Hannah McCarthy. Christina Phillips is our senior producer. Rebecca Lavoie, our executive producer. [00:27:30] Music in this episode by some wonderful musicians who are extremely generous to make their music available for shows like ours; Dusty Decks, Fabien Tell, Sir Cubworth , Dajana, Tellsonic, HoliznaCCo, Scott Gratton, Hanu Dixit, Blue Dot Sessions, Yung Kartz, and the guy who, in music class, got A’s not C’s, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

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Socialism, Communism, Fascism

These are three of the most-used isms in the media and on social media. So what does it really mean when we call someone a socialist, communist, or fascist? Where did these ideologies come from, and why do we have ideologies in the first place?

Today we speak with Patrick McGovern, professor of political science at Buffalo State University, and Susan Kang, professor of political science at John Jay College of Criminal Justice and host of Left On Red.


Transcript

Hurry. Step right up, folks. Here's the answer to your problems. Dr. Utopia's sensational new discovery is ISM will cure any ailment of the body politic.

Nick Capodice: Do you recognize that voice, Hannah?

Hannah McCarthy: The voice of Dr. Utopia? No, Nick. I don't recognize it.

Nick Capodice: It's Frank Nelson.

Hannah McCarthy: Who?

Nick Capodice: Wait, Let me try this. Do you recognize this? Yessssss.

Hannah McCarthy: Oh, that guy. That guy.

Nick Capodice: That guy! The Yes guy.

No. No. [00:00:30] Yes.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are tackling three isms. This is a trio that sees a lot of use and misuse in the media and on social media.

Archival: We will never let socialism destroy American health care.

Archival: According to a new survey, 70% of American millennials say they'll likely vote socialist, and 1 in 3 of them view communism in favor of the. [00:01:00]

Archival: A lader of the American military, compared the president of the United States to Hitlerian fascism.

Nick Capodice: We are talking socialism, communism and fascism. Words that you or I, Hannah, or even you gentle listener might misuse with the best of intentions.

Hannah McCarthy: Okay, Nick, Each of those words on their own are college courses.

Nick Capodice: You're not wrong, Hannah. So this is going to be as light of a touch as I can manage. [00:01:30]

Hannah McCarthy: Hang on. Before you start, what was that thing you played with? The guy peddling isms?

Nick Capodice: Oh, yeah. That is as good a place to start as any. It is from a cartoon called Make Mine Freedom. It was a cartoon funded by the Alfred P Sloan Foundation in the 1940s. It is a jocular short where we learn how great the quote, American way of business is. The scene I played for you there had the shady Dr. Utopia peddling them bottles of isms, and these Americans [00:02:00] see what life is like once they get a taste.

Archival: I'll take this case to the Supreme Court. The state is the Supreme Court. Our decision is as follows. No more private property. No more You.

Hannah McCarthy: Wait, what is the ISM cocktail? Communism? Socialism?

Nick Capodice: Interestingly, Hannah, it is not named or specified once in the entire movie, but this is clearly an anti communist piece. But whatever the ism is we're talking about today, all isms at their core are [00:02:30] ideologies.

Patrick McGovern: So ideologies are frameworks. They're are ways of organizing the way we think and engage society and political power structures.

Nick Capodice: This is Patrick McGovern, professor of political science at SUNY Buffalo State, and he gets a very special shout out.

Hannah McCarthy: Why is that?

Nick Capodice: Patrick is responsible for teaching political theory to the person we have had on our show more than any other.

Hannah McCarthy: You mean Dan [00:03:00] Cassino from Fairleigh Dickinson University?

Nick Capodice: I do indeed.

Hannah McCarthy: Oh, thanks, Patrick.

Nick Capodice: Thank you, Patrick. But back to the episode. Patrick told me why we have ideologies, what they do in the first place.

Patrick McGovern: They provide us with. If you think about the human brain as having, you know, the the the the reptile brain that says run like hell and then the brain that sits on top of that says, well, let's think about this. Ideologies are in the run like hell thing. They're there. They're there to help us simplify, filter and deal [00:03:30] with an onslaught of data that we that we get hit with coming out of our political realm, coming out of the social world we engage in. So these are things that help us understand what's coming at us. And if you look at anybody who's defining this, it's they're deeply within us. They are part of who and what we are. Someone like Karl Marx would say about ideologies, we don't know their ideology. We simply think one other people think this way, think the same way we do. And if they don't, they're bad. It's that [00:04:00] easy. Black and white, good over here or bad over there. So ideologies help us organize those things.

Hannah McCarthy: Okay, so ideologies are the labels we adhere to that help guide lots of other choices we make.

Nick Capodice: Yeah. And labels that we attach to other people that we may disagree with. And all three of the isms we're talking about today were created in direct contrast to another ism.

Patrick McGovern: If we're going to talk about friends and enemies, all of those were organized primarily [00:04:30] against da da da da da da liberalism.

Hannah McCarthy: Liberalism now, not liberal as in left wing, but liberal as in the old school definition. The freedom of the individual is the most important thing.

Nick Capodice: Absolutely.

Patrick McGovern: We in the United States call it libertarianism, and that that's a whole nother show. But the liberalism that we get from someone like the English political thinker John Locke, writing in the late 1600s, promotes the idea [00:05:00] of of the individual as coming prior to society that the individual societies are made up of atomized individuals. Society is just a collection of individuals. So when you organize government, government has to be restricted from impinging upon the individual pursuing their own interests.

Nick Capodice: Last thing on ideology is generally, before I get into any one of these in particular, Patrick posits that the notion of the United States having one is relatively new.

Patrick McGovern: One of the things I think [00:05:30] my students and most people just don't understand and that's it's okay, but we're just taught this way is that the nation state, as we organize, we're organized politically, internationally. And, you know, the way we look at the world today, we are members. We're citizens of the United States, the United States. That's something we we only come to recognize after the Civil War. That's what the Civil War was about prior to it. We call it these United [00:06:00] States.

Nick Capodice: But after the Civil War, we really started to run with this idea of the US as a nation state because it is a lot more effective to get soldiers to join and fight for a country and what it stands for than for your town or your state to do the same.

Patrick McGovern: So what happens is we start seeing the development nation states getting in cahoots with economies, reorganizing society in such a way as to make them better at projecting their [00:06:30] power into the rest of the world, particularly Europeans. The question becomes what's what's the best way of doing that and how do you avoid some of the problems that come with it? And one of the problems that comes with it, and this is where socialists and Marxists kick in, is say, hey, when you look at that economy that you think is fueling everything, one, you're making some people super rich and you're destroying the lives of other people.

Hannah McCarthy: Okay. We're getting to how the economy works here, making the wealthy wealthier and hurting the non wealthy [00:07:00] at the same time. Are we straying into our first ism? We are.

Nick Capodice: We are indeed. Hannah. Socialism.

Susan Kang: I define socialism as a political movement that seeks to equalize political, social and economic power within capitalist society.

Nick Capodice: This is Susan Kang, professor of political science at John Jay College of Criminal Justice.

Susan Kang: I'm a member of the New York City Democratic Socialists of America. And also for fun, I also [00:07:30] co-host a podcast called Left on Red.

Hannah McCarthy: Left on Red is a very funny name for a podcast about socialism.

Nick Capodice: Well, as I am a thousand year old vampire, I don't really get the joke, Hannah, but I sort of do. I asked Susan, though, what the goal of socialism is. What are socialists trying to do?

Susan Kang: To me, the fight for socialism in like, you know, our contemporary context would be promoting rights for workers, social and economic rights for regular people, whether it be like guaranteeing housing, health [00:08:00] care, education, things like a clean environment. Did I say child care and lots of things that we in our current society think of as things you pay for, right? Because I'm also a scholar of human rights. So human rights are not just the idea that you have a right not to be discriminated against, which is, of course also fundamental to socialism in my mind, but also that you don't have to have value in a capitalist market economy to be [00:08:30] able to have your basic needs met. And so that's like a really minimalist view of socialism.

Hannah McCarthy: Okay, So Susan identifies as a socialist.

Nick Capodice: She does.

Hannah McCarthy: Now, when I think of extreme socialism, I think of things like a system where nobody owns property and everything is distributed equally. Is that what she's advocating for?

Nick Capodice: Absolutely not. There are dozens of different kinds of socialism.

Susan Kang: My own family, for example, my grandmother lived in what is now North [00:09:00] Korea. They lost land. There was a lot of repression. You know, there was starvation. Like, you know, under Stalin, for example, there was an attempt to create a new society through force. And like no one that I know who calls himself a socialist wants to do something like that. Like we know that really radical, top down state mandated social economic reforms, they don't work right. What we need is to build a broad consensus among people who think, yeah, this is what we want.

Patrick McGovern: One of the things I like to point out to people that [00:09:30] if you you know, you don't like socialism. All right, then don't read Dickens. That anger that you see in Charles Dickens against the factory owners. Marx is writing the same thing. Just they're doing it different ways, but it's the same anger. And again, this is particularly this time the rise of the textile mill, the rise of automation. We're not quite there yet, but it's you can see it beginning to happen. Child labor. The reason you have kids working these looms is [00:10:00] their little hands work faster and can get into the machinery. Oh, the kid's hand is ripped off. Yep. Too bad. Go beg. There's no there's no social net. So you had people who were making the argument that, okay, we've got this rise of the nation state. Maybe we can use it to provide a baseline of protection against the citizens that you're asking to commit to the nation state.

Nick Capodice: Even though I'd be hard pressed to find someone who referred to the US as a socialist country, we [00:10:30] do have an awful lot of socialist policies, places where the government steps in to help people out.

Hannah McCarthy: Okay. Off the top of my head, I'm thinking like food assistance programs, unemployment insurance, Medicare, Social Security,

Nick Capodice: The mail.

Hannah McCarthy: The mail?

Susan Kang: The US mail, like they get stuff there. Right. And we take it for granted. But it's really nice. What if I offered you 25? I don't know, 50 odd cents to deliver this thing to my friend in California. [00:11:00] That would never work. There's no market for that.

Nick Capodice: And there's one big, big one that I never before thought of as socialist.

Patrick McGovern: Just get on Google and type in biggest discretionary spending US government. And what do you get? That is the spending outside of debt maintenance and Social Security that are mandated. You have to pay into that. What's the next thing? Okay, it's defense. You and I are not going out and buying a B-2 bomber. We can't. [00:11:30] We cannot. France cannot buy a B-1 bomber from us. There's one group that's purchased that's that's the United States military, that socialist. That's government buying these things for us.

Susan Kang: Capitalists have to work really, really hard to go against that existing consensus to tell them that this is going to be not in your favor. Having these kinds of basic rights are going to mean that you, hard working American are going to get cheated when in actuality [00:12:00] the cheating is already there. Again, a.

Nick Capodice: Reminder here, Susan identifies as a socialist. We're sharing her political viewpoint here. But I have to add, it's not an uncommon one.

Susan Kang: It's the wealthy who are hoarding their wealth, hiding it offshore, refusing to pay their share of taxes, doing things like kicking people off Medicaid, like hundreds of thousands of people are now being kicked off Medicaid, other social programs which in no way will benefit anyone, not even like, you know, employers. So we see that this is like an ideological [00:12:30] war that has to constantly be fought, because otherwise, if we were allowed to present our ideas, then we would win because they're popular ideas.

Hannah McCarthy: Okay. I'd like to move on to a more specific form of socialism, one that the US has certainly been at odds with over the years. Communism.

Nick Capodice: Ah yes, Communism. We're going to get to that as well as fascism right after the break.

Hannah McCarthy: And Nick, speaking of free things for the common good.

Nick Capodice: Oh, I see where this is going.

Hannah McCarthy: Civics [00:13:00] 101 is and always will be as long as I draw breath free. But it relies on listener support. If you have the means, donate what you like at our website civics101podcast.org.

Hannah McCarthy: We're back. We're doing a gentle touch on a bunch of isms today. And Nick, we were about to dive into the system of government that provides from each according to their ability to each according to their need.

Nick Capodice: Top Marx [00:13:30] to you, Hannah. Let's do a minute on communism.

Archival: Now the world begins to learn the truth about communism. Family ties are discouraged. The state is supreme, Religion is the opiate of the people.

Nick Capodice: The basic definition of communism is a system based on the ideals presented by Karl Marx and Friedrich Engels's work The Communist Manifesto. And the big thing you got to know about it is that it removes all class.

Hannah McCarthy: Like there's no more upper class, no more working [00:14:00] class, no more so-called lower class. Et cetera.

Nick Capodice: Right. And everyone owns everything together, leading to the eventual removal due to irrelevance of private property, of money and ultimately the state itself. But like we said, with socialism, communism is also not so cut and dried.

Patrick McGovern: When you talk about the communism that comes out of Marxism, you get Leninism, you get Maoism, you get Trotskyism, [00:14:30] just to name a few.

Nick Capodice: Again, this is Patrick McGovern, professor of political science at Buffalo State University.

Patrick McGovern: They all have different views. For example, Lenin had no problem with the state. The revolution was people seizing the state, using the state to organize workers, and then eventually the state goes away. But as you can see with Stalin, Stalin had no problem with keeping the state right in place. And this is one of the breaks between Stalin and Trotsky. So, no, no, no, no. That's not we don't want the state. We can see what the problems with the state is this [00:15:00] It's authoritarian and classic. Marxists are not authoritarian.

Nick Capodice: To my understanding. Hannah no country has yet successfully had a Marxist style government. Again, here's Susan Kang, professor of political science at John Jay College of Criminal Justice.

Susan Kang: In my mind, communism is what various states like various countries of the world, participated in before the end of the Cold War, in which there was an attempt [00:15:30] to use a powerful state to radically transform society to fit socialist ideas. Sometimes people use the term actually existing socialism or state socialism to describe this. But we could think of this as like East Germany, Soviet Union, like the Eastern Bloc, maybe Vietnam, North Korea and China obviously. And some people in some places it was very Stalinist with like a really powerful totalitarian state. But the general [00:16:00] idea was that there was an ideology, a socialism that justified the whole project, but the practices were not necessarily ones that someone like myself would ever endorse or say, we're good, right? So, for example, Stalin thought that most farming in Soviet Union was done through privatized means, and he was like, Nah, let's do something called collective farming. And if you don't fall in line, I'm going to send you to the Gulag. And so he it was very top [00:16:30] down. Not a lot of appreciation for local knowledge.

Nick Capodice: And a lot of people protested and were indeed kicked out or sent to the gulags. Those were forced labor camps where over 18 million people were imprisoned. And this, of course, had horrible repercussions.

Susan Kang: And so his great Soviet collectivization of agriculture led to some of the most devastating famines in Russian history in which, like millions of people, died. So that's not something that socialists would endorse, [00:17:00] at least not contemporary socialists.

Patrick McGovern: Marx wouldn't look at China. Marx wouldn't look at the Soviet experiment or Vietnam or Cuba and say, Yeah, that's yeah, that's what I had in mind. No, those people are those people are miserable. That's not what he had in mind. He had in mind a radical democracy where we all own the means of production. All right?

Hannah McCarthy: In the US we have historical moments like the Red Scare, the Cold War. These are things that supported the idea that America is a nation state, does not espouse a communist [00:17:30] ideology, that it is in fact anti communist. But there was a Communist party in the US, wasn't there?

Nick Capodice: There was. And I got to bring this up because it happened just a few blocks from where I live. A historic marker dedicated to the birthplace of a member of that party has very recently been removed.

Archival: I am dead set against this, and I think it's an embarrassment that we have a program that allows us to put communists on historical markers and then say, Oh, that's [00:18:00] part of our history. It's not part of my history.

Patrick McGovern: Certainly in the 1930, the United States, there were a lot of people who were, you know, members of the Communist Party flirting with the Communist Party. And the fear was that they were just agents of the Soviet Union. And certainly the Soviet Union was trying to make them agents. That's clear. But once a lot of people caught wind that that was going on, they [00:18:30] hightailed it out of there.

Nick Capodice: So a historic marker dedicated to the birthplace of Elizabeth Gurley Flynn was removed not during the Cold War, not during the Red Scare, but a few weeks ago. And New Hampshire Governor Chris Sununu signed off on the removal. Flynn was a leader in the IWW, the Industrial Workers of the World Labor Union, as well as a founding member of the ACLU, the American Civil Liberties Union. And yes, she was indeed a leading member of the Communist Party USA. She went to prison for that. She was [00:19:00] accused of advocating the violent overthrow of the government, and she defended herself at the trial, saying, quote, Never have I and not now do I intend to advocate the overthrow of the government by force and violence, nor do I intend to bring about such an overthrow. She died during a visit to Russia in the 1960s, but as per her wishes, her remains were shipped to be. Buried in Chicago right next to Emma Goldman.

Patrick McGovern: Not all people who claim Marxist roots, of course, are not endorsing what [00:19:30] Stalin was up to. And look how many people left. Marxists left the Soviet Union because that's what he was up to. They knew what he was doing and they got that. They got out of there.

Hannah McCarthy: Okay, Nick, last ism here, fascism. It's a little strange to include it in this list because communism and socialism share a lot of principles. But fascism does not share those same principles.

Nick Capodice: I agree. They do not share principles. I picked these three specifically [00:20:00] because of their prevalence in social media, and we've been in the historic vein for a while. Hannah, But I have to let our listeners know that in this last part, we're going to touch on today's political climate and our guests' view of it. And we don't do that too often on the show. Okay. Okay. First, I'm going to start with a contrasting piece of propaganda to Make Mine Freedom. Here's a clip from another film called Don't Be a Sucker. It's an anti fascism movie produced by the US Department [00:20:30] of War in 1947.

Archival: I'm speaking to you as an American American. And I tell you, friends, we'll never be able to call this country our own until it's a country without without Negroes. Without alien foreigners, without Catholics, without Freemasons.You know these people.

Archival: What's wrong with the Masons? I'm a mason. Hey, that fella's talking about me.

Archival: And that makes a difference, doesn't it?

Hannah McCarthy: Wait. The protagonist is going along with [00:21:00] fascist ideas until he hears they're against Freemasons.

Nick Capodice: Yeah. Not really a persecuted group today, Hannah. Or ever.

Patrick McGovern: In in getting ready for this podcast. I was reading up on all of this and where people are worried about the ism of Marxism, communism, fascism had a much bigger impact on the world. More countries are willing to engage in fascist [00:21:30] tendencies, authoritarian totalitarian tendencies than a successful communist revolution.

Hannah McCarthy: Do you have like, a Webster's definition of fascism?

Nick Capodice: Yeah, This one's harder to define. There's no, like, fascist manifesto. And it's not a term anybody really uses to describe themselves. But Patrick gave me a good breakdown.

Patrick McGovern: Okay, I'm going to say it's an authoritarian nationalist ideology that's characterized by strong central government, [00:22:00] a dictatorial leader, a strict control of the economy. It suppresses political dissent. It's aggressive. It's militaristic, and it has a clear sense of an enemy who is caused a crisis in the nation. And the only there's only one person that can solve that crisis. And everybody has to get on board with with the leader. Whether you call it IL IL Duca, you call him the Führer, you call him the man. [00:22:30] And again, it's almost always a male figure. It's very, very gendered in that regard.

Hannah McCarthy: Getting on board with the leader is an idea that has been around since we have had leaders. But when does that word fascism arise as an ideology?

Patrick McGovern: Fascism came out of Italy in the 1920s under Benito Mussolini, who was trying to organize again, like everybody else. He's looking around and saying, you know, Italy kind of [00:23:00] didn't do so well in World War One. So Benito Mussolini comes along and says, I'm going to make you the you know, I'm going to make you a reincarnation of the Roman Empire. We're going to be important again.

Hannah McCarthy: That is a pretty bold claim. How does he go about doing that?

Nick Capodice: Well, first, by concentrating on massive weapons production and equally massive industrial production and also framing this Italy first ideology. We are the best.

Patrick McGovern: The other thing is that fascism ties in with [00:23:30] the rise of national communication systems. So film, radio, propaganda. During World War One Nation states figured out how to get millions of people into the trenches and be willing to walk into a meat grinder and not give a second thought about it. Fascists do this extremely well.

Nick Capodice: And unlike our other isms, fascism allows people to get very, very wealthy.

Patrick McGovern: Fascism [00:24:00] is all about the nation state. It does not challenge private property. That's one of the things where it's going to come after Marxism and said, Nope, we're going to let the private, especially large capital holders, we're going to let them be. We're going to let them get rich so long as they're supporting our regimes, ehm, and that is to make Italy great again.

Nick Capodice: And as we all know, Mussolini wasn't the last fascist.

Hannah McCarthy: Right. Many leaders since have used the idea of [00:24:30] the nation above the individual or race above the individual to gain power.

Nick Capodice: Yeah, like Adolf Hitler. And while Hitler and Mussolini are dead and gone and the fascist ideologies of Italy and Germany that led to World War Two are no longer tied to those nation states. Fascism itself is not gone from the earth.

Patrick McGovern: One of the things we tend to forget is that with the end of World War two, elements that bring about fascism were not defeated. They did not go away. Um, [00:25:00] so that's, that's always a threat. One of the, you know, fascism's biggest targets is democracy. They don't want our vote. They want our participation, but they don't want our vote is that they don't want an in sense of individuality. It's be a good soldier. Strap on, you know, this national bird and and take up arms.

Nick Capodice: And Patrick says that if we're looking at fascism today in America, the [00:25:30] enemy isn't necessarily another nation.

Patrick McGovern: It may not be taking up arms, you know, go go off to Afghanistan and fight, but take up arms against the people who are driving our country apart. But but you certainly opened up a can of worms. It's like, well, what what fascist elements do we see in the United States? Um, you know, if come out and say, Trump, you're going to get a boatload of you know, you're you're going to be overwhelmed. And, uh, but certainly that tendency that I am the answer we are in crisis. I [00:26:00] am the answer. God guns and Coca Cola or, you know, don't don't challenge industry unless it's Disney and they're making us woke or something. But the people who won't get on board with them, the people who are on board with them, are clearly good and everybody else is bad. That certainly shows, you know, a at least a tendency towards authoritarianism.

Hannah McCarthy: Patrick said the ideology of fascism didn't end after the war. [00:26:30] But does that mean we're stuck with it?

Nick Capodice: Maybe, maybe not. I mean, I don't want to end an episode on a shrug, but this is truly something that comes and goes.

Patrick McGovern: This has been a long slog, I would argue, since World War Two. Um, and, you know, it came in waves. And, you know, American politics is always on this pendulum. And we happened to be swinging towards [00:27:00] a not so discursive mode right now. Um, my hope and history tells us will swing back. But what's going to take us to swing back? Maybe it was January 6th that we say, okay, we've gone. We've gone far enough.

Nick Capodice: Well, [00:27:30] that's our triumvirate of isms for today. I'm personally off to go read some Marx, Engels, Hegel, Locke, and Machiavelli. See you soon. This episode is made by me. Nick Capodice with You. Hannah McCarthy. Thank you. Our staff includes producer Jacqui Fulton, senior producer Christina Phillips, and executive producer Rebecca Lavoie. Music in this episode by some of the rootinest tootinest tune makers out there; Blue Dot Sessions, Daniel Birch, Jesse Gallagher, Francis Wells, Dreem, Jules Gaia, Howard Harper Barnes, Matt Large, Huma Huma, Scott Gratton, Simon Mathewson, Yung Kartz, and the guy who makes the music for all according to their needs, Chris Zabriskie. Civics [00:28:00] 101 is a production of NHPR, New Hampshire Public Radio. YESS.


 
 

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This podcast is a production of New Hampshire Public Radio.

The 14th Amendment

The 14th Amendment granted citizenship to all persons born or naturalized in the United States. It also granted them equal protection under the laws and guaranteed due process of law. Those are considered its most important provisions today. That wasn't always the case, however. Why did it take so long for the Supreme Court to affirm these provisions of this significant Amendment, and what does that say about politics at the highest court in the land?

Our guide to the 14th Amendment is Aziz Huq, professor of law at the University of Chicago School of Law.

 

 

Transcript

Archival: [00:00:07] Mr. Hirschkop you may proceed.

Archival: [00:00:09] Thank you, Your Honor.

Archival: [00:00:13] Mr. Chief Justice. Associate Justice. May it please the Court. We will divide the argument accordingly. I will handle the equal protection argument as we view it, and Mr. Cohn will argue the due process argument.

Hannah McCarthy: [00:00:27] Nick, do you have any idea what case this is from? [00:00:30]

Archival: [00:00:30] Odious of the segregation laws and the slavery laws and our view of this law.

Nick Capodice: [00:00:35] Slavery law.

Archival: [00:00:37] Is that this is slavery law. 2058 is the evasion section under which this case particularly arose, which makes it a criminal act for people to go outside the state to avoid the laws of Virginia to get married.

Nick Capodice: [00:00:51] Oh, okay. Loving, Loving v Virginia.

Archival: [00:00:55] The issue is may a state proscribe a marriage between two adult consenting individuals [00:01:00] because of their race. And this would...

Hannah McCarthy: [00:01:02] That's right.

Hannah McCarthy: [00:01:03] Super famous case. The Supreme Court finds that a Virginia law prohibiting interracial marriage is in violation of the equal protection clause of the 14th Amendment.

Archival: [00:01:15] They themselves would lose their rights for insurance, Social Security, for numerous other things to which they're entitled. Right.

Nick Capodice: [00:01:22] We have done not one, but two episodes on this case.

Hannah McCarthy: [00:01:25] We have. But today I am having us consider it for a specific reason. [00:01:30] In this case, the court says that this law prohibiting interracial marriage, otherwise known as an anti-miscegenation law, is racist. The court says it is a violation of the 14th Amendment. The court says the 14th Amendment means a specific kind of protection.

Nick Capodice: [00:01:48] Kind of protection, as in a protection under the law extended to all people in the US. That is what the 14th Amendment did. Well, did it? What do you mean? [00:02:00]

Hannah McCarthy: [00:02:01] All right, Nick, this is going to be an episode about context, about the ways in which politics and events hold sway over the interpretation of our amendments. The 14th Amendment comes up in discourse today in ways that have nothing at all to do with equal protection under the law. The most important pieces of any amendment and what that amendment actually means, that shifts and it's based on what the Supreme Court says about it. I'm using Loving V [00:02:30] Virginia as an example because it was decided in 1967. The 14th Amendment was ratified 99 years earlier, and this form of Virginia's anti-miscegenation law had been on the books since the 1920s, though interracial marriage had been prohibited long before that. If the 14th Amendment is the Equal Protection Amendment, where in a century of this quote unquote slavery law, was it?

Aziz Huq: [00:03:04] Yeah, [00:03:00] I would take a step back and I would say that if you want to identify the most important parts of the 14th Amendment, the answer to that question will vary depending upon when you're asking it. So at the time that the amendment was drafted, people paid relatively little attention to Section one, which contains a set of entitlements, and they paid a great deal [00:03:30] of attention to Sections two, three and four, which concern representation in the new Congress, which concern the exclusion of former confederates from political life and which concern the war debts that the union had accrued.

Hannah McCarthy: [00:03:47] This is Aziz Huq.

Aziz Huq: [00:03:48] I am a professor of law at the University of Chicago, where I teach, among other things, a class on equality and due process.

Hannah McCarthy: [00:03:59] I'll confess, [00:04:00] Nick, I went into this interview with Aziz having certain ideas about the 14th Amendment and what it meant, and those ideas included the 14th, really meaning something for equality and due process. And it does. But that meaning wasn't really affirmed when it was established.

Aziz Huq: [00:04:18] The 14th Amendment was drafted and ratified after the Civil War and contains a series of measures that were intended to [00:04:30] alter the social and political situation in the South by vesting, in particular, former slaves with new kinds of rights and entitlements, and also to cement the new national status quo by creating conditions under which the formerly Confederate states could rejoin the union without [00:05:00] destabilizing the outcome of the war.

Nick Capodice: [00:05:03] Huh.

Nick Capodice: [00:05:04] So Aziz said that just after it was ratified, people weren't paying much attention to the first very important section of the 14th Amendment, which, by the way, just for ratification, says what exactly?

Aziz Huq: [00:05:16] The most important pieces of the 14th Amendment are contained in section one. Section one includes four different textual elements, each of which specifies a different [00:05:30] kind of right or entitlement. The first is an entitlement to birthright citizenship, with important exceptions. The second is a provision concerning what's called privileges and immunities. And the third and the fourth, respectively, promise equal protection of laws and due process of law.

Nick Capodice: [00:05:56] But Aziz was saying in the 1860s, the focus [00:06:00] was really on the other parts of the amendment. The stuff about representation in Congress and war debts. What was going on there was that just post war anxiety, like what are we going to do now? And who cares about the rights and protections part of this?

Aziz Huq: [00:06:14] Absolutely not. The structural elements of the 14th Amendment were really pivotal to the way that reconstruction could be implemented. Recall that the Southern states that were formerly members of the Confederacy had [00:06:30] implemented a rules called black codes in the wake of the war as legal means of reinstalling the economic arrangements that characterized pre-war slavery. The 14th Amendment's rights provisions in Section one were meant to repudiate the black codes, but nobody thought that those rights would be self-enforcing. Nobody thought that merely announcing a set of entitlements meant [00:07:00] that the world on the ground would change. And everyone understood that for the world on the ground to change political power and ultimately military power through the reconstruction acts would have to be exercised. And who was the key agent for the exercise of military and political power and later, judicial power with respect to the project of reconstruction. It was Congress. And so the 14th [00:07:30] Amendment's provisions on the terms of representation in Congress, on the exclusion of former Confederate officials and on the validity of the public debt, were, in fact, cornerstones of the new war political order, without which even the limited achievement of rights that we did, in fact see would not have occurred.

Hannah McCarthy: [00:07:59] Basically, [00:08:00] in order to actually make Section one of the amendment happen, you had to first make sure that the nation's politics would allow for it.

Nick Capodice: [00:08:09] And this amendment contains an enforcement clause, right? Congress has the power to enforce this. So to undermine the black codes and to enforce the entitlements in Section one, Congress has to be the one to step up and do it.

Aziz Huq: [00:08:23] One of the surprising reversals that occurs in the wake [00:08:30] of the civil war is that although Congress plays a driving role enacting important legislation in the 1870s, even through to the beginning of the 1880s, quickly it becomes the court and not Congress that is taking the very general language of the 14th Amendment and in particular, the privileges and immunities, equal protection and due process language and transforming it into lived realities. [00:09:00] And the court here is largely in the late 1800s performing the political agenda of the Republican Party, which is making most of its appointments. Ask the Republican Party drifts away from the project of racial reconstruction and turns toward the project of the creation of a national commercial economy.

Nick Capodice: [00:09:24] Now, hold on a minute. Hanna, I just want to pause on this notion for a moment that the court is performing the political [00:09:30] agenda of the Republican Party, because for a lot of American history, the court has been held up as this idealized, apolitical institution. The independent judiciary is ostensibly a court system that is not influenced by other branches of government. Regardless of that notion, I do think that many people out there would feel that the court is in fact Partisan, even if the court itself would deny this. So can we address this? [00:10:00] Yep.

Hannah McCarthy: [00:10:01] Let's get into it.

Aziz Huq: [00:10:02] If you look back to the design of the federal courts, the members of the Philadelphia convention thought that they had guaranteed judicial independence by providing judges with after the fact protection from firing or salary reductions. They did not think, however, that [00:10:30] routing judicial appointments through to elected entities, the White House and the Senate presented any concern of politicization because they expected both the White House and the Senate to be apolitical bodies. The theory of national government, that is Article stated by James [00:11:00] Madison and was broadly accepted at the time, was that the national government would stand above what Madison called faction and Hamilton. Alexander Hamilton in the Federalist Papers is very clear that he anticipated that an apolitical Senate, drawing from what he described as the very limited pool of people who would be qualified to sit on the federal bench would [00:11:30] be in no position to engage in gamesmanship of a partizan kind with respect to appointments.

Nick Capodice: [00:11:38] I mean I mean, I knew that Madison was wary of factions. Federalist Ten is like the most cited federalist paper of all, but it's almost laughable to think of an apolitical Senate or of a very small pool of people considered qualified for the bench.

Aziz Huq: [00:11:56] Both of the assumptions upon which that [00:12:00] design was based failed, and they failed because the Constitution was successful. They failed because on the one hand, the Constitution generated a set of national politics, and national politics in the modern era means parties. We have national parties, Contra Hamilton and Madison's expectation. Moreover, we [00:12:30] have a national economy. There aren't just two law schools in I think it's Litchfield and Cambridge that produce lawyers. So in a world in which there are ample qualified applicants for federal judgeships and there are very powerful Partizan dynamics that push both [00:13:00] Democrats and Republicans to make selections based upon partizanship and where both Democrats and Republicans know that the design of Congress and the presidency is such that gridlock will often dominate so that the courts are the only available pathway for different kinds of national policy making. There is both motive and opportunity to [00:13:30] deploy the courts as instruments of national policymaking under those conditions. For people to say that courts stand outside politics is, I think, a form of professional malpractice when the claim is made by a legal academic.

Nick Capodice: [00:13:48] So to Aziz's point, we can reasonably say that the Supreme Court is influenced by politics.

Hannah McCarthy: [00:13:56] I think, Nick, perhaps we should say that if [00:14:00] we want to be reasonable, even if that means shattering a beloved American myth. But that is sometimes what we do here at Civics 101. So how was the court enacting the political agenda of the Republican Party? We talked a bit about the Slaughter-house cases in our reconstruction series Butchers, who appealed a case in the Supreme Court with 14th Amendment equal protection claims. This is 1873, and [00:14:30] here's how the court decided.

Aziz Huq: [00:14:32] The court narrowly interprets the protections of the 14th Amendment as they apply to formerly enslaved people in the South and their descendants. So the court narrows the scope of the 14th Amendment insofar as it is a shield against racial violence and exclusion. This culminates in a case called the civil Rights Cases, [00:15:00] where the court declares that Congress has no authority under the 14th Amendment to regulate private action and in so doing, announces that it is time for the formerly enslaved to cease to be the special wards of the law. So this is a point in time at which not just the court is ruling in ways that are disfavorable to former slaves. It is articulating clearly its repudiation [00:15:30] of the project of racial reconstruction starting in the decade that follows that the court finds in the 14th Amendment. Another political project, and it's important to note that that's happening at the same time that the National Republican Party is turning toward a much more free market vision of the United States. It's aggressively appointing judges to the lower courts and to [00:16:00] the Supreme Court. And it's those judges that are finding, in particular in the due process clause to the 14th Amendment, an idea of what has come to be called economic liberty.

Nick Capodice: [00:16:14] Wait, what does that mean?

Hannah McCarthy: [00:16:15] It's mostly about what employers and investors are owed in business deals. The court decides that regulated entities like railroads are entitled to fair returns on their investments. It also says that employers are entitled to whatever contract [00:16:30] they want to make with their employees, regardless of minimum wage or maximum hour laws that states might have.

Nick Capodice: [00:16:38] As in, even if your state says that you have to pay fair wages and you can't make your employee work more than 40 hours a week. The court says actually you can pay them whatever you want. You can make them work as long as you want and they can just quit if they don't like it.

Hannah McCarthy: [00:16:51] Yep.

Aziz Huq: [00:16:55] So the court, by the early 20th century, [00:17:00] has turned the 14th Amendment from a charter for racial reconstruction into a shield. For broadly speaking, corporate activity or capital against in particular state, but later national efforts to regulate, particularly in the name of redistribution.

Nick Capodice: [00:17:33] So [00:17:30] if we want to answer your question from the beginning of the episode, Hannah, where was the 14th Amendment in the century before the Loving V Virginia case? The answer is in large part, the 14th Amendment was busy protecting business.

Aziz Huq: [00:17:53] The court was moving in rough lockstep with the elected branches and in particular with the Republican coalition [00:18:00] with which it was more closely aligned at that point in time. And remember that by the election of 1876, the project of racial reconstruction had largely been put aside by the national government in more or less explicit terms. There are decisions after that election from the Supreme Court that are actually more favorable than one would imagine to racial reconstruction. But at that point, the political will is flagging. The appointments [00:18:30] to the lower courts are increasingly characterized by people who have an interest and a history of working in one kind of business or another. And we're starting to see the courts shift accordingly.

Nick Capodice: [00:18:41] So when did the Supreme Court start to look at the 14th Amendment differently? If we think of it as an amendment about due process and equal protection, specifically when it comes to race, was there a point at which it did mean that.

Hannah McCarthy: [00:18:55] There was and in fact, it certainly meant that to a huge portion of the population [00:19:00] before the court affirmed it. And we'll get to that after the break.

Nick Capodice: [00:19:04] But first, just a reminder, you don't have to miss a single episode of Civics 101 ever. You can follow us on Apple podcast, Spotify or wherever you get your podcasts. You know the drill. And while you're there, consider leaving us a review just to let us know what you think. Your feedback means a lot to us and it helps our show get better. See, both Hanna and I used to be actors, so feedback is like oxygen, sometimes [00:19:30] very painful, sometimes very cruel.

Nick Capodice: [00:19:33] But always helpful oxygen. We'll also just accept you telling us you like us because again, actors. So a little too thirsty Hannah?

Hannah McCarthy: [00:19:42] A little.

Hannah McCarthy: [00:19:49] We're back. You're listening to Civics 101. And before the break, Nick You asked when the 14th Amendment started to really mean what we tend to think of it to mean today, an amendment that [00:20:00] enshrines due process and equal protection under the law. It's important to note that while the judiciary certainly did not uphold the racial equality and due process aspects of the 14th Amendment initially, that doesn't mean that citizens forgot about it. It just means that when the rubber meets the road, it didn't really matter.

Aziz Huq: [00:20:21] So until the 1930, it was very rare for a member of a racial minority [00:20:30] to win a case under the equal protection clause. Indeed, there's a there's a famous decision not involving race called Buck v Bell, in which Justice Oliver Wendell Holmes caused the equal protection clause. The lawyers last refuge, it's the very last place that you look as a lawyer if you're desperate for arguments.

Nick Capodice: [00:20:50] Equal protection was a last ditch effort argument. It's just hard for me to imagine equal protection as not being a really important claim, especially [00:21:00] when it comes to a case about race. So at some point, Section one of the 14th Amendment really did start to matter, though, right? Equal protection due process. Those are big. So when did things change?

Aziz Huq: [00:21:14] The NAACP at the beginning of the 1950s. Now, this is a period in which you have two kinds of pressure on the federal government. First, there's pressure from black soldiers who fought in World War Two in the Pacific, [00:21:30] in the European theaters, who are coming back and who are not content to literally sit at the back of the bus. And second, you have the Soviet Union trying to win proxy wars, particularly in Africa, by centering its propaganda on the fact of Jim Crow.

Hannah McCarthy: [00:21:47] So basically, politics changed.

Aziz Huq: [00:21:50] So there's two pressures on the federal government at this point in time. And since the FDR administration, an administration in which Eleanor Roosevelt [00:22:00] played a particularly important role in picking out judges, you've had more and more judges being appointed to the lower federal courts who are sympathetic to questions of racial equity raised by African-Americans against Jim Crow. And you have an interest on the part of the Democratic Party. Notice again the importance of partizan politics. You have an interest on the part of the leaders of the Democratic Party [00:22:30] in breaking the hold of Dixiecrats on the party.

Hannah McCarthy: [00:22:35] Quickly here, the Dixiecrats. They were a segregationist party, primarily in the southern US. What you would call a splinter group from the Democratic Party itself. They objected to the Democrats civil rights plan that was popular mostly in the North.

Aziz Huq: [00:22:50] Dixiecrats have stood in the way of major parts of the New Deal. This is an enormous thorn on the side of the FDR administration and the Truman administration. All right. [00:23:00] So you have geopolitical, social and Partisan political pressures on the federal government in that context. The NAACP gambles on advancing the gains they've made in the university education context. By trying to extend the principle of separate but equal into [00:23:30] or trying to extend not just the challenge to equality. The challenge for equality, but the challenge to separation as such from the university context into the primary and secondary school context.

Nick Capodice: [00:23:45] Okay. Like in Brown v Board of Education.

Hannah McCarthy: [00:23:47] Right, exactly. That decided in 1954, the case in which the court ruled that separate but equal is inherently unequal. And mind you, even though this case has come to stand [00:24:00] for a great moral victory in the United States, it was by no means a guarantee that the court would allow the 14th Amendment to win out here. Actually, just the opposite.

Aziz Huq: [00:24:10] It's really important to say that this is an enormous gamble. It's an enormous gamble because the emotional stakes for white Americans at this time for primary and secondary education are extraordinarily different from the emotional stakes of tertiary education. The principal talking [00:24:30] point, if you go back and look at arguments about Brown, one of the principal talking points is the threat that black male students will pose to white female students in primary and secondary school. The sexual threat, it is explicitly understood. There is an explicit appeal to a racist understanding of black male sexuality as a justification for maintaining separation in schools, and the NAACP are really [00:25:00] gambling in pushing back at this because this is a very, very powerful force that cuts across partizan lines. So they bring a series of cases across 5 or 6 American cities, largely in places where the where the separate black schools are pretty good.

Nick Capodice: [00:25:17] What does he mean when he says the schools are pretty good.

Hannah McCarthy: [00:25:19] As in not schools that are obviously substandard, not schools that you would point to and say, you see, here are black children who are in a lesser environment receiving [00:25:30] poor education compared to white kids.

Aziz Huq: [00:25:32] And the NAACP brought the cases in places like Kansas City precisely because they didn't want equality. They wanted to get rid of separation because they thought that nationally, yeah, you might have these pockets of good black schools, but nationally, Green will follow white. The money will follow the white students. And if you desegregate the schools, the money will go to mixed schools. And as [00:26:00] a whole, black kids will benefit. So they bring these cases. They win in a in a way in Brown v Board of Education.

Hannah McCarthy: [00:26:10] When Inoue famously or maybe infamously, the court ordered that desegregation occur, quote, with all deliberate speed. Well, who's to say what that actually means? And school districts, particularly in the South, dragged their feet for a long time.

Aziz Huq: [00:26:29] The real [00:26:30] change is federal legislation. In the beginning of the 1960s, there's a federal statute that involves secondary education funding that made federal funding conditional on having a desegregated school. And there is a provision in the 1964 Civil Rights Act that allows the Department of Justice to file suit. Those two things are game changers. So remember earlier on, we talked about whether it's the court or the Congress that is [00:27:00] in the driver's seat. The court was in the driver's seat around desegregation and it couldn't get the get the vehicle into anything beyond first gear. Right. The car kind of sputters forward with a lot of friction and a lot of smoke coming out of the hood. And it's really only when Congress steps in that you have a shift, an up gearing toward a noticeable shift in the allocation of children between different schools.

Nick Capodice: [00:27:28] All right. Well, this reminds me of what Aziz [00:27:30] was talking about when it came to the 14th Amendment in the 19th century. But it's the opposite, Right? When the amendment was ratified, it was supposed to be Congress who enforced it, but the Supreme Court weakened the privileges and immunities clause and the equal protection and due process clauses. So now it's the 1960s and the court's saying, here's what the 14th Amendment means, but they need Congress to make it happen.

Hannah McCarthy: [00:27:55] Yes, but just as importantly, the court continued to say, [00:28:00] here is what the 14th Amendment means, specifically with respect to rights protections and privileges. Mapp, v, Ohio. Griswold v. Connecticut. Loving v. Virginia. Roe v Wade. Obergefell v Hodges. All of these cases, by the way, we have done episodes on. So to that end, I asked Aziz, Is the Supreme Court in the driver's seat when it comes to the 14th Amendment? Or is [00:28:30] it Congress?

Aziz Huq: [00:28:33] The court is still in the driving seat, in part because we have an increasingly deadlocked Congress thanks to polarization. The court is in the driving seat, both in respect to equal protection and in respect to due process on equal protection. The court has increasingly emphasized what it calls a colorblind view of the equality promise. One result of the of the colorblind [00:29:00] accent of its case law is that it is almost impossible for a minority plaintiff to win an equal protection case. And going back to the late 70s and early 80s, almost all of the individuals who win equality arguments are white plaintiffs. So the Equal Protection Clause has become an instrument for eliminating means of redistribution that largely benefit racial minorities. [00:29:30] That is what the equal protection Clause does these days. That effect is amplified because when minority plaintiffs bring equal protection claims, generally their argument is that they have been intentionally discriminated against. Often this is an argument that's made in the context of coercive state action like policing or border control. And in those contexts, the court has erected almost insurmountable barriers to proving intent. [00:30:00] So where a white plaintiff is likely to bring a case, the court has lowered the barriers to success where a minority plaintiff, either a black plaintiff in the context of policing or let's say a Hispanic or other ethnicity national origin plaintiff brings a claim in the context of, say, immigration enforcement. It is almost impossible to win an equal protection claim. We've already just touched on what the court is doing with respect [00:30:30] to due process. It's doing it's getting rid of rights to sexual autonomy, notwithstanding that. Right being on the books for 50 years and being something that largely women have come to depend upon.

Hannah McCarthy: [00:30:42] One last point Aziz made, and by the way, he has written a book about exactly. This brings us back to the enforcement question. Be that enforcement by the federal Congress or by the states, except Aziz calls it remedies.

Aziz Huq: [00:30:56] Not so much the idea of what rights are available under the 14th Amendment, [00:31:00] but what remedies are available. The last book that I wrote was about how remedies emerged under the under the 14th Amendment and then effectively collapsed. And so, for example, with respect to police violence, you know, you or I have a right to protection against both racist and unlawful violence by the police in theory, but we don't have one in practice. And that gap between the rights that we have and the way that the that they can be enforced through remedies I think is really important and I think is very [00:31:30] underappreciated.

Nick Capodice: [00:31:31] So it's all well and good to say. The 14th Amendment means these rights and these protections. But if the rubber doesn't meet the road, it doesn't really matter. All right, Hannah. I do have to ask one last question. The 14th Amendment has come up quite a few times in the last couple of years.

Archival: [00:31:49] There's also a tension, though, on members of Congress who some believe were also responsible for promoting that riot at the Capitol. Calls for accountability there have been extended to those lawmakers that are accused [00:32:00] of throwing gasoline on the fire by pushing theories of a stolen election. The 14th Amendment has been brought up as the mechanism for that.

Archival: [00:32:08] The progressive Democrats in the Senate are urging the president to consider using the 14th Amendment to avoid default. Senator, thanks for being on. Has this ever been done before? I'm looking back...

Nick Capodice: [00:32:23] How on earth do debt ceiling negotiations or the question of who can sit in office have anything to do with the 14th [00:32:30] Amendment?

Aziz Huq: [00:32:30] The third section of the 14th Amendment says that if you have engaged in rebellion or insurrection or given aid and comfort to a rebellion or an interaction, you can't run for public office in the United States, whether it's at the state or the federal level. We have had. Rebellion or insurrection on January the 6th, 2021, and that this provision has been used in one case successfully to bar people from public office. The second element of the 14th Amendment that is suddenly [00:33:00] newly relevant is there is a provision in the 14th Amendment that prohibits anyone from questioning the debt of the United States. Now, this was a measure that was intended to ensure that the newly readmitted southern states could not capsize the federal government by repudiating the very large union war debt.

Hannah McCarthy: [00:33:25] So back to your question, Nick. In early 2023, Congress authorized [00:33:30] spending through legislation. Now it is responsible for paying the money. And there's a law from 1917 called the Second Liberty Bond Act, which created what we now call the debt ceiling, where Congress has to vote if they're going to spend money that goes over that ceiling. And by the way, we recently made an episode about the debt ceiling, and I warmly recommend you give it a listen.

Aziz Huq: [00:33:54] What's happening today is that Congress, having decided to spend money, is refusing [00:34:00] to fund that spending in such a way as to make it fiscally impossible for the United States to pay interest on its debts. Treasuries can't pay interest on treasuries. The argument from the 14th Amendment is Congress effectively here is questioning the validity of the debt. It is preventing the executive branch from paying the interest on treasuries. Since treasuries are the most important [00:34:30] element of most money market funds, failing to pay interest on treasuries will have the effect of dramatically destabilizing suddenly and maybe comprehensively, the US economy. This is exactly the kind of problem that Section four of the 14th Amendment was meant to prevent. And the argument is, is that where Congress does something unconstitutional, the president doesn't have to execute that unconstitutional order. [00:35:00] So, for example, if Congress passed a statute saying anyone who tweets in favor of a political candidate will be summarily locked up, no one thinks that the president is under a constitutional obligation to enforce that law. Why? Because the law is plainly unconstitutional here. The law is again, I don't think it's plainly unconstitutional, but it's at least arguably unconstitutional. And therefore, Biden [00:35:30] has authority to. There's a number of things that he could do. There's the famous trillion dollar coin, which I'm not I'm not enamored by, but there are other less wacky things that he can do that mitigate the problem caused by Congress calling into doubt the debt.

Nick Capodice: [00:35:52] So after all this time, the 14th Amendment, the one that we associate with equal protection, with due process, [00:36:00] is back to the debt question.

Hannah McCarthy: [00:36:03] We do love to repeat history around here. This episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jackie Fulton is our producer and Rebecca Lavoi is our executive producer. Music In this episode by Xylo Dzeko Viscard [00:36:30] 91 Nova Hitomi Tsunami Spring Gang. John Runefelt. Sara the Instrumentalist and XIV. And just a little reminder that we are public radio. What does that mean? It means that we're free for you. We tell the truth and we are beholden only to you, the public. We also rely on the public to keep us going. You will hear ads on this show from time to time, but our primary source of support is you. So if you're in the position to make a contribution [00:37:00] to this show, I kindly ask that you consider doing so. I myself have been contributing to public radio since I was a teenager. That is how much it means to me. It feels good even if it's just a dollar a month, which is, by the way, how I started. You can click the donate button at civics101podcast.org to voice your support for this show and for the project of public media. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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