Life Stages: Death

It's the last week of our Fund Drive, click here to support seasons to come!

It's also the final episode of our Life Stages series, and its euphemism-free. We speak to a doctors, lawyers, professors, and funeral professionals about the rules of death; pronouncing, declaring, burying, cremating, willing, trusting, canceling, donating.

Featuring the voices of Dan Cassino, Ken Iserson, Leah Plunkett, Mandy Stafford, and Taelor Johnson. 





Civics 101

Life Stages: Death


 [00:00:05] Civics 101 is supported in part by the Corporation for Public Broadcasting.


Nick Capodice [00:00:05] You know what. More than ever in this series, I am grateful for red tape. Because death is so personal. And in radio we're not supposed to refer to  "the listener." But I'm gonna do it. You listener. I have no idea how you want to talk about death. When I was coming up with ideas for the episode I was like I'll open with The Seventh Seal or Bill and Ted's Bogus Journey or Barber's Adagio for Strings. Because I don't know, are you a reverent about death? Does it terrify you? Maybe you're dealing with it right now in your life and it's horrible and it's consuming everything. So all I'll do is say that when I have dealt with death in my own life, I strangely took comfort in the rules and regulations and systems of it. Because I'm sad and I'm angry and I don't know how I'm supposed to feel, but okay let's see what the lawyer has to say. How many copies of the death certificate do we need. Let's talk about the arrangements. But these conversations are so awkward.


Ken Iserson [00:01:06] We don't like to talk about it. We don't like to think about it.


Nick Capodice [00:01:10] This is Dr. Ken Iserson.


Ken Iserson [00:01:14] I'm professor emeritus at the University of Arizona Department of Emergency Medicine.


Nick Capodice [00:01:17] He's written several books on death including Dust to Death: What happens to dead bodies.


Ken Iserson [00:01:21] You know even in the shoot em up cops and robbers and military films and other media where they show lots of deaths and lots of killings, they don't show the funerals. They don't show the dead bodies. Except maybe for Game of Thrones. But in general we don't, a lot of people don't like to go to funerals. That's not part of their life which is kind of strange because of course it is part of life.


Nick Capodice [00:01:52] I'm Nick Capodice.


Hannah McCarthy [00:01:54] I'm Hannah McCarthy.


Nick Capodice [00:01:55] And today on Civics 101 it is the final chapter of our life stages series; Death.


Hannah McCarthy [00:02:01] Can we start with when someone becomes dead.


Nick Capodice [00:02:04] Right, we're not going to get into the sort of philosophical question of when is someone quote dead but we can explore when someone is legally dead.


Ken Iserson [00:02:12] Yeah that's that's a really really big part of the interaction of law and death. Who decides that a person is dead and how is it done. Well in every country in every locale the basic rule is a person is dead when a physician says the person is dead.


Hannah McCarthy [00:02:32] So once they're pronounced dead is that when the death certificate is issued?


Nick Capodice [00:02:37] Yeah and usually someone checks the clock and they step back and they say time of death for 13 or whatever but there are two very different ways you can become dead and Hannah, this can cause some issues regarding what is real.


Dan Cassino [00:02:52] Legal facts and actual facts often but do not always co-exist.


Nick Capodice [00:02:58] You all know that music means there he is making his last appearance in the series, Dan Cassino from Fairleigh Dickinson University.


Dan Cassino [00:03:04] Meaning, the fact that something is legally true does not mean it is actually true. So there's two ways you can be declared dead. So you can be declared dead, declaration of death happens from either a cop or a medic or a judge, or you can be pronounced dead which is by a doctor. Now if you're pronounced dead and a doctor looks at you and says This guy's dead, there's not much disagreement about that and the legal fact of your death and the actual fact of your death are two things that are very much in line. Depending what state you're in between four and seven years if you have disappeared and there is no reason why you've disappeared in the courts are allowed to look into this and decide alright is this person fleeing debt, where they, did they leave a note and say they were going somewhere, if there's no reason why you should be missing and you haven't turned up at your place of business and there's been effort to find you and haven't turned up and they put an ad in the newspaper asking for you to turn up and you haven't turned up guess what. After four to seven years you are legally dead and your heirs can start collect your estate. The government can start giving Social Security to your survivors. Insurance companies have to pay out and if you decide after that you want to come back and you are not actually dead just legally dead, well you're gonna have a hell of a time because the Social Security administration is gonna want all that money back that they paid out to your survivors and they might not want to pay you back. The insurance company while it turns out they cannot actually take the money back from your heirs, it turns out they can sue you if you disappeared on purpose and try and get the money back that they did pay out from you. And so we have all these cases where people who are in fact legally legally dead but not actually that do come back.


Hannah McCarthy [00:04:29] But how often does that actually happen.


Nick Capodice [00:04:31] Dan said there are about 100,000 dead not dead Americans walking around right now.


Hannah McCarthy [00:04:37] That is bonkers.


Nick Capodice [00:04:38] But for the majority of Americans, death will happen in a hospital or home or hospice care and the funeral service will be contacted to assist with what comes next. But Ken told me it wasn't always that way.


Ken Iserson [00:04:52] In the beginning in the beginning of our country families experienced births and deaths at home. They saw many many many little children die at birth. They saw the mothers in large numbers die giving birth or shortly thereafter. They saw what happened to the bodies. They helped bury them they helped prepare them, and then that changed.


Nick Capodice [00:05:22] In fact the antiquated term undertaker which I learned you should never call a funeral professional these days just meant someone who undertook a task. And that person is usually a family friend or relative who helped you bury the body and make arrangements. That person would contact the local cabinet maker to make a coffin and maybe a carriage to take it to the grave site. But that was it. By the way do you know the difference between a coffin and a casket Hannah.


Hannah McCarthy [00:05:48] This isn't a setup for a joke is it.


Nick Capodice [00:05:49] No it's not. No.


Hannah McCarthy [00:05:50] Okay Nick what is the difference between a coffin and a casket.


Nick Capodice [00:05:54] It's the shape. A casket is rectangular and a coffin has that a irregular hexagonal coffin shape.


Hannah McCarthy [00:06:00] That's it?


Nick Capodice [00:06:01] That's it. And as a fun side note, in the 1950s there are about 500 casket manufacturers in the U.S. and today three companies that make 70 percent of the caskets in America.


Hannah McCarthy [00:06:12] So when did Death shift from being the responsibility of families and your local cabinet maker to these funeral professionals.


Ken Iserson [00:06:21] Around and after the Civil War the funeral industry suddenly became a real entity and embalming was developed. And initially it was developed of course for the bodies on the battlefield, especially the officers, they wanted to preserve them and send them home. And then all of a sudden this body arrived that was supposed to be embalmed. And I guess it was to some extent but not in a condition you'd want to look at it. And then the families began using that routinely and gradually sending the whole process over to the funeral director instead of at home.


Nick Capodice [00:07:12] Embalming becomes more popular when formaldehyde becomes readily available in America and embalming fluid sellers would travel the country to give these one day crash courses and how to do it to funeral directors and this means the body can be preserved and therefore more time and consideration given to the funeral service. And that's how we get to today where a funeral director can provide over 130 separate types of services for a family.


Hannah McCarthy [00:07:41] Like what.


Nick Capodice [00:07:42] Set up catered meals for services, they contact the friends and family for you about the death, write and place the obituary, arrange the hearse, the church, gravestone, refrigeration, memorial cards, tent at the gravesite, washing, dressing, cremating casketing, cosmetology and the big one embalming.


Hannah McCarthy [00:08:02] Wow wow.  Is it legally required that a body be embalmed nowadays.


Nick Capodice [00:08:05] Absolutely not. But there are laws of it having to embalm or refrigerate or cremate or bury within a certain time window after death. Did you know the U.S. and Canada are the only two countries in the world where enbalming is common and we bury about 800000 gallons of embalming fluid every year. But while all the states have different regulations about burial, embalming is not required as part of your final disposition.


Hannah McCarthy [00:08:31] Final disposition.


Mandy Stafford [00:08:32] A final disposition is that last step.


Nick Capodice [00:08:37] This is Mandy Stafford. She's a funeral director at Mueller memorial in St. Paul Minnesota.


 [00:08:41] Hi I'm Scott Mueller president of Mueller memorial and author of the bestselling book What to know before you go.


Nick Capodice [00:08:47] I had the pleasure of speaking with two Mueller Memorial employees Mandy and Taelor Johnson who's in charge of community relations.


Hannah McCarthy [00:08:53] I'm glad that we get to hear from people who actually do this for a living.


Nick Capodice [00:08:56] Right. And the first thing I asked them to do was to help me clear up any misconceptions about the industry.


Taelor Johnson [00:09:03] I'll search sorry but I'll start you right there. Scott doesn't like it when we call it an industry. He prefers to be called a profession.


Hannah McCarthy [00:09:09] Nick you always manage to do this.


Nick Capodice [00:09:12] I know! No. They were very cool about it.


Taelor Johnson [00:09:13] No no no it's a perfect example. Perfect example.


Nick Capodice [00:09:16] If I may say Mandy and Taylor were the exact opposite of that film stereotype of the scary funeral director and they both told me about the laws regarding that final disposition how you end up.


Mandy Stafford [00:09:28] Minnesota has what's called a 72 hour law and so within 72 hours of when someone passes away the family needs to make the decision between having cremation take place being able to do the embalming process or doing what's called a direct burial which means burial takes place without embalming, within the 72 hours.


Hannah McCarthy [00:09:52] Are those your only three options; embalming cremation direct burial.


Nick Capodice [00:09:56] Not even remotely every state may have different laws but in 46 of them you can be buried in your own yard. There are green burials which are alkalis that break your body down, you can be buried at sea. Not to mention the thousands of things you can do with your cremains. And also, and this is where Mandy and Taelor defied my expectations, they expressly said you don't even need a casket or coffin. You need a rigid container if you're cremated. But other than that anything goes. A cardboard box. A bedsheet.


Hannah McCarthy [00:10:26] Wow. Can I ask a quick questino.


Nick Capodice [00:10:28] Yeah go ahead.


Hannah McCarthy [00:10:29] I don't know if you know the answer to this.


Nick Capodice [00:10:29] Sure.


Hannah McCarthy [00:10:30] I had a boyfriend once.


Nick Capodice [00:10:32] Yeah.


Hannah McCarthy [00:10:32] Who. I mean this is this is just a little fantastical but his plan for his death was to be taken out to the forest and and kind of sink into the earth and be taken away by animals. Can you do that can you just let yourself let your dead body be eaten away and taken away just lying out there in the middle of the forest is that legal?


Nick Capodice [00:10:53] That is not legal due to the potential for spreading illness or contaminating a water supply. The body does have to be buried.


Hannah McCarthy [00:11:00] Oh what about a Viking funeral.


Nick Capodice [00:11:04] Like a Pyre?


Hannah McCarthy [00:11:04] Yeah.


Nick Capodice [00:11:05] Like set alight on a boat via a flaming arrow.


Hannah McCarthy [00:11:08] Yeah.


Nick Capodice [00:11:08] You can't do that and you're not the first to ask. That's actually a common question. Cremation has to be done by a licensed crematorium because fires that we set just can't get hot enough.


Hannah McCarthy [00:11:18] How hot exactly did crematoriums need to get to reduce the body to ash.


Nick Capodice [00:11:24] Modern crematoriums get up to about eighteen hundred degrees. There is one and only one outdoor pyre styled crematorium in the US. It's in Colorado.


Hannah McCarthy [00:11:34] Now. Take me through the absolute bare minimum. Someone dies. What do you have to do.


Nick Capodice [00:11:40] If it happened in your home; unless the person was in hospice care, you have to call the police. They will send a medical examiner and determine the cause of death and write the death certificate. But dealing with the body is probably going to cost you. Lots of life insurance plans help you cover those funeral expenses, average burial in America seven to ten thousand dollars, average cremation five to six thousand dollars. If you're working with a funeral home a funeral parlor you'll probably spend at least three thousand dollars.


Hannah McCarthy [00:12:10] But what if you have no money. A relative passes away in your home what can you do.


Nick Capodice [00:12:16] This varies state by state and county by county. But if you're on some manner of governmental assistance that assistance program will negotiate and cover a simple cremation or a burial with the funeral home. Mandy told me it's usually cremation most of the time because the government program will not help pay for a cemetery plot or a headstone. But the real tricky part in this comes not to how it's done but who gets to make that final determination of your final disposition. It's your next of kin. You know about the next of kin order right.


Hannah McCarthy [00:12:46] No I don't.


Nick Capodice [00:12:47] It's like the presidential succession. So first it's your spouse and then it's your children and then it's your parents siblings and grandchildren then grandparents then nieces nephews etc.. Here's funeral director Mandy Stafford again.


Mandy Stafford [00:12:58] So I think that is really the biggest red tape is understanding who has that right to make the decisions and say there are eight children and four of them want cremation and four of them want a traditional casket at service. That's where things can get a little grey so to say. Because here in Minnesota we do need one more than half to sign for cremation to take place.


Taelor Johnson [00:13:27] And if they can't get that majority.


Nick Capodice [00:13:29] Taelor told me that they just get there. They mediate and they discuss it and it almost always gets decided within that 72 hour window.


Hannah McCarthy [00:13:40] So what can I the currently living due to prevent this hassle and debate for my next of kin when the time comes.


Nick Capodice [00:13:48] So you want to make it easier for those you love.


Hannah McCarthy [00:13:50] Yeah.


Nick Capodice [00:13:51] All right. First thing you have to do is fill out an advance directive. I'm going to do it as soon as we record this episode. I swear. You can download the forms for your state. Fill them out in front of a witness. Give a copy to your doctor, to your lawyer, to your parents, to your kids. Keep a note saying you have one in your wallet. That assures your friends and loved ones that what you want to be done with your body will be carried out and no one has to make that grueling decision. But even after you deal with the red tape of the burial, you're not finished.


Taelor Johnson [00:14:22] Yeah there's a lot of things that that we don't think about because there's especially now in the digital age we're living in. People have so many different accounts and and passwords and user names and all that and it's it's hard to figure out exactly how to close out someone's life. You kind of break it down into two different categories, one would be cancellations and one would be more like asset distribution. So if you're looking at cancellations, something like Netflix Netflix doesn't have a contract or anything like that so you can just call Netflix and tell them someone passed away and they'll cancel the account. Because if you are doing that falsely it would be easy for the person to reinstate it. It's not a big deal but you want to use caution when you cancel something like an Amazon account or a an iTunes account because once you do that you lose all of the assets that were being held by that account. So technically speaking when you buy a song air quotes buy a song on iTunes you're actually leasing it for your lifetime.


Hannah McCarthy [00:15:27] Are you kidding me. Like I don't actually own the copy of a League of Their Own that I paid for.


Nick Capodice [00:15:33] Those Rockford peaches are not yours to espy in death Hannah, and my kids can no longer watch all nine seasons of Curious George. Google lets you choose whatever you want to do with your account when it's been inactive a certain amount of time you can let someone else access that or just lock it all shut it down and delete everything. And Facebook lets you assign what's called a legacy contact. Phone companies need to be called appropriately enough but there's one kind of Web site that is very persnickety about death.


Taelor Johnson [00:16:05] So. So if you have like an online stock account through E-Trade or T.D. Ameritrade or something like that you would you would want to make sure that beforehand, and this is a huge takeaway and if I could if I could like shake people and say do this it would be it would be to say go into, if you have these kinds of accounts if you have a brokerage account which is just an account that has that you can trade stocks in or something to that effect. Make sure you have a transfer on death filled out because you are not required to fill that out when you when you open a brokerage account. You are required to fill out a beneficiary for an IRA but if you've got an online brokerage account you have to go in specifically and fill out a transfer on death form. And a big thing there is is the biggest most important thing in either of those cases is to not ever make any transactions after someone has died. If you have the username and password for your spouse or your sibling or something like that if you're there the executor of their state whatever it doesn't matter do not go and make changes because the IRS will not look fondly upon a discrepancy between transactions that were made by quote someone you know like it by a living person and that conflicting with a a certain death certificate.


Hannah McCarthy [00:17:35] Okay so now we're into an area that is famously touchy right. Leaving your assets after death your will.


Nick Capodice [00:17:44] Right. Did I ever tell you that I had a program on my Apple iic when I was a kid called Will Writer. My sister and I wanted to start a will writing business.


Hannah McCarthy [00:17:52] Why were you... as children?


 [00:17:56] Can you write your own will. Sure you can.


Nick Capodice [00:17:58] There are a ton of YouTube videos with will advice out there by the way.


 [00:18:01] You can also build your own house but that doesn't mean you should. A will is an important legal document.


Hannah McCarthy [00:18:08] When you're left something in a will, does the government take some of that is it taxed?


Nick Capodice [00:18:13] This is called an estate tax and the federal government won't do it unless it is eleven point eight million dollars or more that you're left. The state though can levy state taxes on that gift at a lower level but it's still around the million dollar range. However be ye warned about capital gains tax. So that's like if you're left a house that's worth 250 grand and you sell it for 275. You get taxed on that twenty five thousand dollar difference.


Hannah McCarthy [00:18:43] Why are wills so complex.


 [00:18:44] I know, right? So I asked Leah Plunkett from University of New Hampshire School of Law, why can't I just write on a piece of paper I leave everything to my wife and kids and they know what's best. Why are they so tricky.


Leah Plunkett [00:18:55] Wills are complicated because we need to make sure that they are made with an understanding by the person who's making them of what they're doing that they're not being coerced or controlled but they're being made knowingly and voluntarily and of free will. It's so crucial that we know that that's really your decision. So I've got a piece of paper in my blue professor pen you know on the desk right here. If I just write I leave everything to my husband two kids and a dog they know what's best, you're an appropriate witness because you're not related to me, you don't have a stake in my will. But how the heck is you know a court or the bank that has the mortgage on our house or any of these other official entities supposed to be able to know that this piece of scrap paper that I scribbled on was really me, that I was really doing it of my own free will. If there aren't certain, I sometimes tell my law students that going to law school is like going to Hogwarts that there's certain phrases and certain words that are legal terms of art. And if you use them the right way then magic happens. And it's not flying or unforgivable curses but you do have the power to alter the outcome of someone's life or an institution's trajectory.


Hannah McCarthy [00:20:18] These are phrases like I Hannah McCarthy being of sound mind and body.


Nick Capodice [00:20:22] Yeah. Terms like bequest, devise, right of representation, executor, the female version of which was once an executrix by the way. An executor is the person who carries out the will and with very few exceptions your will is going to go through probate, which is a court review to prove the validity of the will. Probate comes from Latin for to prove. And that process of probate can take months up to years.


Hannah McCarthy [00:20:47] And there's no way around this.


Nick Capodice [00:20:49] There is a way and I feel like I'm in a commercial when I'm talking about this stuff but it's creating a trust instead of using a will to give stuff to someone else. If you create a trust you can choose possessions and money to give to someone before you die, and when you die, and after you die. And trusts do not go through probate, they don't go through court.


Hannah McCarthy [00:21:12] OK I. I knew a good number of people in college who actually had trusts that like they wouldn't be able to access them until they were like 21 or 25 or 30 but some of these trusts, tell me if this is an actual legal thing, had stipulations like you have to have graduated from college or you can't get in trouble with the law.


Nick Capodice [00:21:35] You can put conditions like that on any gift, will, or trust. State supreme courts have actually ruled on this. As long as the conditions don't break the law they are binding and you have to do the thing to get that money. Even things like you have to have an Ivy League diploma or you cannot marry outside the faith.


Hannah McCarthy [00:21:55] Wow that's really kind of restrictive and manipulative.


Nick Capodice [00:21:58] But it's legal, man. It's the law.


Hannah McCarthy [00:22:01] Can I just ask you Nick, after all of this, have you decided on your final disposition?


Nick Capodice [00:22:10] I haven't yet but there is something that Ken Iserson from University of Arizona said to me that opened up a possibility I hadn't even considered.


 [00:22:22] There there's so much suffering in creation as we know it. We remember today those made a difference in the relieving that suffering by generosity.


Ken Iserson [00:22:34] I always have felt that people who donate their whole body to science are really benefactors for humanity.


Nick Capodice [00:22:45] If you contact your local medical school and you start the process which also requires signing forms in front of witnesses, you can leave your body to medical science. Once it's been used it's been studied and it's been dissected it's cremated and the criminals are sent back to you usually for free.


Ken Iserson [00:23:01] You know there's one other thing that's associated with it. I think it started at the University of Arizona Medical School and has gone to other places since. But the medical students actually have a service for all the people who donated their bodies for their anatomical training. And it's rather moving the whole class gets together and it's led by a diverse religious people.


 [00:23:30] I never knew where you were from. I never knew your face, never knew your voice. I committed every twist and turn of each and every vein and artery to memory.


Nick Capodice [00:23:44] Even though the way we think about death has changed so much in America has Taelor who deals with death every day if she had any advice for the rest of us.


Taelor Johnson [00:23:53] Definitely don't shield your children from from death, don't shield anyone from it. Because we're we're pretty well distanced now as a society from death. We have someone who comes to our house and and takes the body away and there are, we don't have to be close, closely involved as as even two generations before us were. So I just encourage people because I spend a lot of time working on grief and those those few days that that acute loss period is really so vital framing how your grief experience is gonna go for the rest of your life. So so don't back away from it, kind of lean into the the rites and ceremonies that happen when someone dies and always go to the funeral.


Nick Capodice [00:24:41] Mandy told me that it helps with the grieving process. And she told me a story about the one time she didn't go to a colleague's and how she still doesn't have closure in that death. Ken told me that it's great maybe even preferable to not have a funeral at all but have a memorial service like months or weeks after to celebrate the life of that person.


Hannah McCarthy [00:25:01] I have to make an advance directive. Write a will. Write down passwords and tell my next of kin not to cancel my Amazon.


Nick Capodice [00:25:10] Right.


Hannah McCarthy [00:25:11] I have a lot of tasks to do before I die.


Nick Capodice [00:25:14] May it be a long time my friend.


Hannah McCarthy [00:25:18] So that's it. I think we're done. Cradle to grave.


 [00:25:22] Yeah. Almost. Just one last word to kind of put the hat on the snowman. Before I said goodbye to Dan, he said he wanted to put in one final salvo, a defense for these things that you and I consider onerous.


Dan Cassino [00:25:37] All of these things we're talking about are about bureaucracy or about the federal government and putting red tape in your way. And we hate bureaucracy. We hate that red tape. But turns out this is actually a really good thing. So think about it. If I go to the DMV and a person in front, that person handing me a ticket tells you a line to get in. If Bill Gates goes to the DMV he goes the front that person gives him the same ticket. Lets say that person really loves Bill Gates loves Windows. I'm sure that person exists. They go out they say we want to help Bill Gates, what can they do? Nothing. They give him the same ticket. They are constrained. They have really no way of doing anything other than the one thing they're allowed to do. The whole idea of bureaucracy is it's small d democratic. Everyone gets treated in the exact same way because the bureaucrats don't have any discretion, they have no ability to treat people differently so you and me and Bill Gates and the person's mother in law and everybody gets treated the exact same way when they show up. So bureaucracy, while we hate, it while it's terrible because no one has discretion they can't help you out or something goes wrong, guess what. It's the most democratic part of our government.


Nick Capodice [00:26:37] So here's to bureaucracy a word that I can just never spell.


Hannah McCarthy [00:26:40] Me neither


Nick Capodice [00:26:41] Really?? You also have that one?


Hannah McCarthy [00:26:42]  I can never.


Nick Capodice [00:26:43] It kills me that red squiggle. I'm like "Today I'm not going to get the red squiggle" and there it is.


Hannah McCarthy [00:26:49] Nick it was fun exploring the life of an American with you.


Nick Capodice [00:26:55] The pleasure was more than half mine. I agree, Hannah. That'll do it for this episode and this series. Today's episode was produced by me Nick Capodice with you Hannah McCarthy. Thank you.


Hannah McCarthy [00:27:02] Oh you're welcome. Our staff includes Jacqui Helbert, Daniela Vidal-Allee and Ben Henry. Erika Janik is our executive producer and owns a non digital copy of a League of Their Own.


Nick Capodice [00:27:13] Maureen McMurray rides A Pale Horse.


Hannah McCarthy [00:27:15] Music in this episode by elephant funeral Blue Dot sessions Seb Wildwood coconut monkey rocket and Chris Zabriske. Scott Grant and did this inspirational song you listen to here.


 [00:27:25] Don't you just want to walk forcefully up a mountain and stand there with your hands on your hips. Civics 101 is a production of a NHPR New Hampshire Public Radio and is supported in part by the Corporation for Public Broadcasting.





Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Life Stages: Retirement

You know, we’d really love to take you on a private tour of the National Archives. Yes, you! It’s just one of our thank you gifts for those of you who contribute to the show. You can make a donation here if you’re so inclined — thank you, dear listeners!

The prospect of retirement -- of leaving the work force, aging, confronting a new body and a new way of life -- is peppered with concepts and requirements so unwieldy they can make your brain turn off. So how do we make retirement prep easier? Shed the dread and face the future armed with a plan? Our guides to the next stage of life are Bart Astor, Tom Margenau and Cristina Martin Firvida



 LIFE STAGES: Retirement

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

Hannah McCarthy [00:00:05] I have to confess something.

Nick Capodice [00:00:07] A podcast for thousands of listeners is as good a place as any Hannah.

Hannah McCarthy [00:00:11] Whenever I see an ad for retirement investing.

Retirement Ad Montage [00:00:16] Money is like life. You have to decide how to get the most from it which means you can retire without retiring from life with retirement planning and advice for what you need today. And tomorrow.

Hannah McCarthy [00:00:30] I get this creeping anxiety.

Nick Capodice [00:00:32] I have retirement accounts I whenever I look at them I just try to find something else to do.

Hannah McCarthy [00:00:38] Yeah. And I think to myself well you know it honey you're not afraid of the future. You've been paying into Social Security since you were probably 16. You're actually pretty lucky you've got a full time job and a retirement savings account. And I have even used one of those retirement calculator things online.

[00:00:57] And yet...

Retirement Ad Montage [00:01:00] We ask people the question how much money do you think you'll need when you retire.

[00:01:04] Five hundred thousand maybe a half million.

Hannah McCarthy [00:01:08] Full on stomach ache.

Nick Capodice [00:01:09] Isn't retirement supposed to be something that you look forward to no more working for the man. Rest of Your Life is just me time.

Hannah McCarthy [00:01:17] Sure all that free time to do what every you've always wanted to do. But then I think to myself What am I actually going to do.

Nick Capodice [00:01:28] Can we pull back this existential shroud? Can we lift a little of our dread?

Hannah McCarthy [00:01:32] I think.

[00:01:33] In fact we can. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice [00:01:38] I'm Nick Capodice.

Hannah McCarthy [00:01:39] And today.

[00:01:40] Retirement. The golden years. The autumn years. The sunset years. Life at the crossroads.

[00:01:56] Can we please remove these words from our retirement vocabulary.

[00:02:05] Retirement doesn't mean you pass into some shimmering soft focus cloud of obscurity.

Nick Capodice [00:02:10] Thank you. I hate these euphemisms. The sunset years. No wonder I don't want to think about getting old.

Hannah McCarthy [00:02:17] Yeah I feel like these terms make us sound like we'll become generic one dimensional versions of ourselves after we leave the workforce and become older. Not to mention the fact that they're a way around saying the word old.

Bart Astor [00:02:31] I think we put down the whole concept of Old. And and my my mission I took on was to say the word old is not a bad word. I think it's really good to be old. I'm so much happier now than I was throughout my life.

Hannah McCarthy [00:02:47] This is Bart Astor. I called him up to talk about what we don't talk about when we talk about retirement.

Bart Astor [00:02:54] I'm fascinated by the fact that we don't think about it. I mean it's amazing everything becomes a surprise. I didn't know that my body would start failing but yet it did. Of course it did.

Nick Capodice [00:03:06] Of course it did. It's bizarre but I get it. Age sneaks up on you a bad back sneaks up on you I'm pretty sure I was 22 yesterday.

Hannah McCarthy [00:03:13] Yeah. There is a measure of existential dread that comes along with this stage of life right. What's gonna happen to my body my brain? Will I have enough money? Can I ever retire? If I do what is it even going to look like?

Bart Astor [00:03:29] Because this image of what life is supposed to be like and we know it is just not necessarily what it is. So I think that we don't want to think ahead. And then when we do we we're afraid that I'm going to sit around and eat bonbons and that that's going to be my retirement.

Hannah McCarthy [00:03:46] Does it have to be all lounging on the couch and eating bonbons. How do we make this transition as straightforward and predictable as possible while Bart's helping us out with the existential. Let's make the practical a little less mystifying too. And the practical has a lot to do with government retirement and a lot of ways was designed by the federal government. There are three major things you need to think about when you think about retirement. That's social security health and savings. First stop Social Security.

Tom Margenau [00:04:21] Maybe you've heard the term join the Navy and see the worldwide join the Social Security Administration. I didn't see the world but I saw a lot of the country as we moved around to different social security offices.

Hannah McCarthy [00:04:31] This is Tom Margenau. He worked for the Social Security Administration for 31 years and a bunch of different jobs. And these days he writes a column about Social Security and retirement. And before we do jump into Social Security as a retirement benefit.

[00:04:47] A quick caveat.

Tom Margenau [00:04:49] Social Security isn't just old people. What Social Security is in a nutshell is it obviously is old people it's retirement benefits and widows benefits those are two big parts of Social Security. But another big part of Social Security disability benefits we don't all stay healthy until we reach our retirement years.

Hannah McCarthy [00:05:08] You can receive Social Security benefits for as long as the Social Security Administration says your condition is one that prevents you from returning to work. For some people that is indefinite and then when they do reach retirement age their disability benefits convert into retirement benefits. There is also a survivor's program for spouses and children widows and widowers can collect part of their deceased spouse's benefit. Children can too until they turn 18.

Nick Capodice [00:05:36] I got it. So Social Security helps keep people secure and all sorts of situations right. But it seems like they're all tied to the fact that someone was working at some point.

Hannah McCarthy [00:05:45] Yes the Social Security Administration uses a credit system so it's similar to the way that you earn college credits as you put in class time on your way to graduation. As of 2019 for every 1360 dollars you earn you get a credit.

[00:06:02] Up to four credits a year.

[00:06:05] The minimum is 40 credits to receive benefits which get delivered once a month for the rest of your life.

Nick Capodice [00:06:13] So after about 10 years you unlock the social security enhancement.

Hannah McCarthy [00:06:18] Exactly.

[00:06:19] Now before we get into details have we always had Social Security in the U.S. the United States actually came a little bit late to the Social Security game.

Tom Margenau [00:06:27] Social Security was implemented in the U.S. in 1935 in many European countries have social security systems long before we started doing that which for example Germany had a Social Security system going back to the 1880s.

Nick Capodice [00:06:41] So what was it like before we had it. It's a long time to go without having a retirement safety net.

Tom Margenau [00:06:46] So it was something like 60 or 70 percent of senior citizens before Social Security were living below the poverty level. They were living with their family they were a lot of senior citizens ended up living in cold poor houses because they had essentially no money.

[00:07:03] So so security grew out of this era in this country when especially going out of the Great Depression as a target. Franklin Roosevelt's New Deal program some kind of system to provide some level of support for older people and then eventually for disabled people and widows and widowers and so on.

Hannah McCarthy [00:07:23] The Social Security Act has been changed a number of times since 1935 but initially it was just federally administered social insurance and we paid for it with payroll taxes.

Nick Capodice [00:07:35] When I look at my paycheck and there's that little area where social security is taken out that's going into the Social Security pot at the end of the rainbow and it goes into one big pot right. It's not just me saving for retirement.

Hannah McCarthy [00:07:46] Right.

[00:07:47] And we'll get into individual savings accounts in a bit but of course if you are making more you are paying more into it and your employer is also paying a percentage into that pot. So if you are self-employed and wondering why your taxes seem so high that is in part because you are paying the entirety of the Social Security tax.

Nick Capodice [00:08:06] So do I get more from Social Security if I made a lot more money during my life.

Tom Margenau [00:08:10] The more money you put in the system the higher your benefits going to be. You know Bill Gates is going to get a higher social security benefits someday. Then his maid is gonna get.

Nick Capodice [00:08:20] What does that mean. Why would billionaire Bill Gates not get five million bucks a week or something from Social Security.

[00:08:26] That has to do with something called rate of return. It's higher for people who earn lower wages over their lifetime. So Bill Gates is Social Security check. It is going to probably be higher than let's say his housekeeper's check. But the percentage of his total income is going to be way lower.

Tom Margenau [00:08:44] A rich person gets a higher Social Security benefits than a poor person. But again as a sort of percentage of what they kicked into the system the poor person gets a better deal out of the program. And that's one of the social aspects of Social Security is to raise the standard of living of lower income people in retirement by giving them this higher rate of return.

Nick Capodice [00:09:05] I've wondered how does the Social Security Administration know that you're ready to collect your benefits to retire.

[00:09:10] Do you tell them you give a call or does your employer tell them?

Hannah McCarthy [00:09:13] You have to apply with the administration. So in most cases you can do this online or over the phone but there are also social security offices in every state in the country.

[00:09:23] You've got to be a few months away from age 62 in order to do it. But there are a lot of people in this country who spend years paying into Social Security who reach that retirement age and find that they are denied benefits.

Tom Margenau [00:09:37] You might be pumping money into the system matter of fact so sturdy actuaries will tell you that illegal immigrants crudely pump about two billion dollars a year in taxes into the Social Security system. People who've obtained numbers through nefarious means but they're working above the people faithfully are of course a lot of folks like that work under the table. But there are some who actually get us all still does work above the table and are paying money into the system pumping two billion dollars a year into the Social Security system but they never collect a dime in benefits because if you're living here illegally you're never going to get a nickel of Social Security benefit.

Nick Capodice [00:10:16] All right. So that's how Social Security is applied to undocumented immigrants. But I have another one I'm a little confused about. I've heard that by the time I retire Social Security will have dried up entirely. What's the deal with that.

Hannah McCarthy [00:10:29] I have heard the exact same thing. And by the way I like Way to up the ante on existential dread. Right.

[00:10:36] And this is an issue that Tom really wanted to get out of the way.

Tom Margenau [00:10:40] The very first presentation I ever made about Social Security somebody got up and said I don't know why we're even listening to you because we all know the program is going to be broke long before we ever get benefits. That was 50 years ago. If that guy is still alive he was in his 30s at the time. You know he's in his 80s now and he's been getting so steady checks for 20 or 30 years now for 50 years now. People have been telling me the system's going to go belly up before they ever have a chance to get benefits. But the system has been paying these benefits for 80 years now. I'm not quite sure how long it's got to be around before people finally accept the fact that maybe it's here to stay.

Hannah McCarthy [00:11:17] The deal right now is that Social Security's excess cash their reserves could run out a decade and a half from now. If Congress does not pass any laws to help things out but this is not the same thing as Social Security going broke. Now there are certainly scenarios where we might receive less money from Social Security because say the economy tanks or we go into a recession but things like this Reserve's running low or economic crises have happened in the past and Congress has reacted.

Tom Margenau [00:11:50] Now certainly over the years the system has had its pumped up against various economic problems were and forecasts were that the benefits would might have to be tapped or something.

[00:12:03] Over the years every time this has happened Congress has passed some laws that make some reforms to Social Security like keep the system going.

Nick Capodice [00:12:12] What kind of reforms.

Hannah McCarthy [00:12:13] Things like phasing in a higher retirement age tweaking tax rates for a period of time adjusting the benefit formula adjusting the retirement age didn't the government sit down and say 65 is the perfect number.

Hannah McCarthy [00:12:27] Well they did in 1935 but actually 65 is not the national retirement age anymore. Reforms in 1983 mean that now the ages 66 and two months if you are on the brink of retirement right now. But by 2022 that age will be 67.

Nick Capodice [00:12:50] Alright so I'll be retiring at 67.

Hannah McCarthy [00:12:52] Or later even. It really all depends on what possible future reforms look like and what your bank account looks like. Also humans tend to be living longer. You can start collecting retirement before you retire but your longevity might be a consideration for you.

Cristina Martin Firvida [00:13:09] You might outlive your savings but you cannot outlive your Social Security and you want to make sure that your Social Security check is robust especially as you get much older.

[00:13:22] This is Cristina Martin Firvida. She's the vice president of financial security and consumer affairs at AARP.

Nick Capodice [00:13:28] The AARP American Association of Retired Persons.

Hannah McCarthy [00:13:32] it actually used to be the American Association of Retired Persons. But there are a lot of people who are members of the group who are not yet retired so now they just go by the acronym AARP.

[00:13:43] They're pretty influential lobbying group in the U.S. that focuses on senior citizen issues.

Cristina Martin Firvida [00:13:48] So I lead up all of a piece federal lobbying on retirement issues including Social Security and pensions. And in addition to that I also work on employment issues housing transportation telecommunications all sorts of important issues that people think about when they're getting ready retire and they're thinking about their money.

Hannah McCarthy [00:14:12] AARP also sells memberships and lends its name to some health insurance companies for health care plans.

Nick Capodice [00:14:18] And they know when you turn 50 my friend just got home for his fiftieth birthday and the card was in the mail and he nearly died. So it's like Hogwarts for adults.

Hannah McCarthy [00:14:26] Yes AARP does send you a membership invitation when you turn 50.

Nick Capodice [00:14:31] How do they know.

[00:14:32] Well in one of the articles that I read about exactly this subject a rep from AARP said they get birthdays from quote companies that specialize in providing information to direct marketers. It's totally legal even if it bums you out. Can we get back to the show, Harry.

[00:14:50] OK onward.

Hannah McCarthy [00:14:54] Your Social Security check is based on your average monthly earnings. The administration pulls from the highest earning 35 years of your employment so you can estimate depending on your age and your highest earnings what your monthly check will look like when you start collecting.

[00:15:09] And that number will barring changes in the law be the same for as long as you collect.

Nick Capodice [00:15:14] And the longer you wait before you decide to collect Social Security the bigger the check will be.

Hannah McCarthy [00:15:19] To a point after you hit the national retirement age you actually do get a monthly bonus if you wait to collect Social Security. But that bonus will only take you to age 70 and you're not going to make more than around thirty five hundred bucks a month.

Nick Capodice [00:15:32] OK. So I'm not going to get rich on Social Security checks if I made the absolute maximum and Social Security and make about forty two thousand dollars a year which seems like enough if the House and the car are paid off. I didn't have any unexpected medical catastrophes or want to go on vacations.

Hannah McCarthy [00:15:51] Yeah and most people are not even going to make that much from social security checks. The average is closer to just under three thousand dollars a month.

Nick Capodice [00:16:01] Is that enough to live on for the rest of my life?

Cristina Martin Firvida [00:16:04] Very few workers have sufficient savings to really make it on just their savings. That's why we have Social Security. The idea of Social Security has always been to form the bedrock of your retirement income. And unfortunately for a lot of for a lot of retirees it's their sole source of income. So to your question is it ever enough. It's probably not enough to have a comfortable retirement. If it's the only source of income you have but it is unsafe it sadly for many their only source of income which is why we definitely want to talk about some other supports.

Hannah McCarthy [00:16:43] Lots of people out there depend on Social Security alone and plenty more rely on it to make up about half of their income. So for many many older Americans it can make a huge difference to access various programs that make life easier to afford. And this is also where part two of the insurance puzzle comes in. Health care.

Cristina Martin Firvida [00:17:05] You obviously want to think about signing up for Medicare which is a very important benefit. After you leave the workforce and then depending on you know for some folks there are some additional benefits that a retiree can access as well and those will include nutritional supports and some other supports that are really designed to assist retirees who have very low income in their post work years.

Hannah McCarthy [00:17:32] There are thousands of these programs across the country to help with prescription drugs housing issues transportation home care services and the hundred plus other things that can crop up in retirement all right.

Nick Capodice [00:17:44] It's time for me to confess something my eyes just glazed over a little when you mentioned Medicare only because health insurance is so much to comprehend. What do I need to know.

[00:17:54] Bare bones.

Hannah McCarthy [00:17:55] OK bare bones. Medicare. Medicare is federal health insurance. It's for people 65 and older. Some younger people with disabilities and people with kidney failure. Medicare is also funded by payroll taxes and some elderly people are eligible for Medicaid too which is typically free comprehensive health care. But there is a catch.

Cristina Martin Firvida [00:18:17] A lot of individuals are surprised that they often will need supplemental health insurance or that they will need to think about budgeting for for the high cost of medicine. We're very focused on the high cost of drugs and we are in the in the middle of a really big push both at the federal and state level to do something about high prescription drug prices. I want to make sure your listeners realize that the median annual income for Medicare beneficiaries is only twenty six thousand dollars. That is not a lot.

Hannah McCarthy [00:18:54] All right Nick how are we feeling about the prospect of retirement so far?

Nick Capodice [00:18:58] I honestly don't know if I'm going to budget for the surprise stuff. I'm terrible at budgeting first off. What if I want to travel to China or start a huge board game collection. I don't want to just scrape by. Is it possible for me to not just scrape by.

Hannah McCarthy [00:19:14] Yes. Nick we've arrived at Part 3 of the wild world of retirement prep savings. Oh man. Here's Tom again.

Tom Margenau [00:19:24] The thinking was you should get about a third of your retirement income from Social Security another third from savings or investments and another third from maybe a pension from your employer. But that was they always they called it a three legged stool.

Hannah McCarthy [00:19:40] It used to be relatively common for an employer to offer a traditional pension plan when you left your job your employer would provide you with retirement benefits based on a fund that they paid into and maintained. But the burden being on the employer is part of the reason that the traditional pension has become pretty rare. It's mostly government workers and a handful of private employees who get these now after some unfortunate incidents in the 60s including pension funds drying up. Two things happened. One Congress passed the Employee Retirement Income Security Act ERISA in 1974 which laid out some basic rules for retirement plans and established a corporation to cover pensions. If that company does go belly up to traditional pension plans started to decline.

Nick Capodice [00:20:28] So back in the day a lot of people had said traditional pension options. That's like one leg of my retirement stool and then maybe I've made some investments of my own or I've save some. That's another leg.

[00:20:39] And Social Security is the third leg.

Tom Margenau [00:20:41] So a Social Security benefit is roughly for the average retiree if this isn't something like 40 percent 30 to 40 percent of their pre-retirement income. And then it's up to the person getting benefits to make up the other two legs of that stool so that it isn't a wobbly stool.

Nick Capodice [00:21:00] But if my pension leg is kicked off I'm standing on a wobbly stool. Hanna I would rather not be on a wobbly two legged stool the rest of my life.

Hannah McCarthy [00:21:09] Okay. It is not as easy as it used to be to have a nice sturdy three legged stool of retirement. But there are options. Here's Cristina again.

Cristina Martin Firvida [00:21:20] There's been more and more responsibility put on individual workers to save for their own retirement. In 1983 only 12 percent of workers were being put into a for one case style savings plan. But today at the current time 73 percent of workers who are offered any kind of retirement plan at work are offered only a for one case style savings vehicle.

Hannah McCarthy [00:21:50] There are tax incentivised retirement programs out there that can help you save even if your employer doesn't offer you one.

[00:21:56] You can get a retirement account with a bank or a credit union or a broker. You can also make your own investments. If you're lucky enough to have the funds or try to stash things away in a savings account even putting a little bit away. Cristina says makes a difference when the day comes to start planning out your retirement.

[00:22:15] Oh and one more thing. Talk to someone who understands money. You don't have to and really shouldn't go through this process alone.

Cristina Martin Firvida [00:22:26] There are a lot of conflicts of interest in the financial advice world. They're not all disclosed. It can be difficult to know what fees you're being charged what commissions you're being charged what recurring fees you're being charged. It's really important to ask those questions. They can be uncomfortable questions to ask. I know it from personal experience but it's your money you saved it you need it for your retirement and you need to know what's going to happen to have money. So make sure the advice you get is best for you. The only way you can know that. Is if you ask those questions.

Hannah McCarthy [00:23:18] Okay Nick what do you think is retirement less of a dark looming forest creature now.

Nick Capodice [00:23:26] It is still a lot to take in.

[00:23:29] But I feel like it has gone from being something I just didn't want to face to being something that's like possible to face now.

Hannah McCarthy [00:23:36] And necessary to face.

Nick Capodice [00:23:37] Whether I like it or not.

[00:23:39] But to be honest I'm still not thrilled with the prospect.

[00:23:42] This whole thing still means at the end of my job and getting older and dealing with all this stuff that I don't want to deal with.

Hannah McCarthy [00:23:49] I think it's time to bring Bart back in.

Bart Astor [00:23:52] I'm 70. I figure I'm going to live to be 90.

[00:23:55] Could be more could be I could get it tomorrow by the bus. OK.

[00:23:59] But I have to assume I have 20 plus years.

Hannah McCarthy [00:24:03] The foggy shroud around retirement and aging has I think a lot to do with the fact that we don't want to pull back that shroud for many people money and aging does causing diety and anxiety can mean that we don't prepare for what's coming because we just don't want to look at it.

[00:24:23] So Bart's advice. Look at it. People it's coming.

Bart Astor [00:24:30] The batter hit the ball with the ball with cleats. We know it's coming at it's time. You know I'm 64 and a half and I have six months before I get on Medicare or retire or whatever. Do nothing. If the ball is already in the air and it's not going to change course it's done all the sudden going to veer left just expressed.

[00:24:53] I because I close my eyes. It's it's coming. So I put my hand out and I catch the ball or I don't.

Nick Capodice [00:25:01] I want to catch the ball. I do that we may find the facts of retirement may be boring or intimidating. Basically we have to pay attention if we want the whole thing to be smoother less surprising.

Hannah McCarthy [00:25:13] Nick, should we run a final test to see if things have improved in the dread department.

Nick Capodice [00:25:18] I'm ready.

Retirement Ad [00:25:20] Why earn my mutual fund fees so high my returns so low and yet you guys keep putting up record profits year after year. You'll see the results in the end. It's a long term game. It's not a game. It's my retirement it's my family's future.

Hannah McCarthy [00:25:40] Getting real there was a tough one. But how do you feel.

Nick Capodice [00:25:46] I feel okay. I feel a little inspired actually. How about you.

Hannah McCarthy [00:25:49] I think the shroud of dread has been lifted. I can successfully watch an entire 30 second retirement commercial without total dread.

Nick Capodice [00:25:59] Eyes on the prize Hannah. It's just.

[00:26:03] That it's like one big ole elephant that we're kind of skirting around here.

Hannah McCarthy [00:26:08] But we're paying attention we're looking forward we got it down.

Nick Capodice [00:26:11] We're not looking all the way forward.

Hannah McCarthy [00:26:14] All the way forward?

Nick Capodice [00:26:15] All stories least the good ones have a beginning a middle and an end. And Hannah. We got to take that step into the most existential of all life stages. The final stage.

[00:26:28] That's next time on Civics 101.

[00:26:41] This episode of Civics 101 was produced by me. Hannah McCarthy with Nick Capodice. Our staff includes Ben Henry, Jacqui Helbert and Daniela Vidal Alee. Erika Janik is our executive producer.

[00:26:51] Maureen MacMurray has been planning her retirement partisan she was a little girl.

[00:26:54] The theme is circus music in this episode by Blue Dot sessions D.R. and scan globe.

[00:27:00] There's so much to see and do at our Web site civics one to one podcast dot org. You can drop us a line or donation if you're so inclined. We really really truly couldn't make this show without your support.

[00:27:11] Civics when one is a production of NH PR New Hampshire Public Radio and is supported in part by the Corporation for Public Broadcasting.




Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Life Stages: Marriage


Today, what does it really mean to be married? Divorced? What changes in the law's eyes?  What do you have to do? And, most importantly, how and why has the government decided who is allowed to marry whom?

And while we're at it, what does love, Pocahontas, or a credit card application have to do with any of this?

Today's episode features the voices of Stephanie Coontz, Kori Graves, Dan Cassino, Leah Plunkett, and dozens of County Clerks. 





Civics 101

Life Stages: Marriage


 [00:00:00] When you two met there was probably an early physical reaction. Romantic attraction pulling you together... a love appeal that hit you sort of. Buying.


 [00:00:12] How did you know? Well it happened to me. It happened to some degree to most couples who become happily married. Boing. Boing. Boing?


 [00:00:24] Why yes, I think you've made a good start towards getting ready for marriage.


Hannah McCarthy [00:00:33] Boing?


Nick Capodice [00:00:34] There is no shortage of clips like this on YouTube Hannah. Dozens of educational films from the 1950s like 'Should I Get Married' 'Going Steady' or 'A Boy's Fancy.'


 [00:00:45] Don't change the subject. Do I look good in a chiffon nightgown or don't I? Or don't you notice anymore?


Nick Capodice [00:00:50] We have arrived at our fourth step and the life stages series here at Civic one. I'm Nick Capodice.


Hannah McCarthy [00:00:56] I'm Hannah McCarthy.


Nick Capodice [00:00:57] And today we're talking about marriage.


 [00:01:02] Married life is no Hollywood moonbeams and honeysuckle but it can be mighty satisfying at times.


Nick Capodice [00:01:08] It's easy to mock these 1950s sexist education reels but one thing I will say it is no wonder there were so many about marriage after World War 2. There was a spike in marriages and divorces higher than ever before in the U.S. Couples rushed to the altar after the war was over and some who had maybe gotten hastily married before the war filed for divorce immediately after.


Hannah McCarthy [00:01:30] It seems strange doesn't it.


Nick Capodice [00:01:33] What do you mean.


Hannah McCarthy [00:01:33] I mean you're doing this thing that feels so personal. And you're thinking about where you're going to get married and what you're gonna say and this whole new life together and an engagement party and telling family and friends and then it's like, well now I gotta figure out what forms we have to fill out.


 [00:01:50] (phone montage)


Nick Capodice [00:01:59] It's true it's so weird you're like I mean it's like 'aaah!' but then we have to do the thing we have to do this other thing right. What do we do? Let's google it. Getting hitched is not specifically outlined in the Constitution. It's up to the states. The fees, requirements wait times, minimum age of marriage, also up to the states is who can marry you, who can officiate the wedding. Most states say it has to be a recognized member of the clergy, a judge, or a clerk. But states like California permit anyone to apply for permission to become a "deputy commissioner of marriages for the day." Isn't that nice.


Hannah McCarthy [00:02:34] That is nice.


Nick Capodice [00:02:34] You've heard of the Universal Life Church right.


Hannah McCarthy [00:02:37] Is that the one online that gives you the ability to marry someone? Okay.


Nick Capodice [00:02:42] It's a church that allows anyone to become a minister and thus officiate a wedding.


Hannah McCarthy [00:02:45] Got it.


Nick Capodice [00:02:45] As long as they follow the state process. Only North Carolina and Virginia have ruled in court that Universal Life Church marriages are not valid. So when it comes to governmental requirements for getting married you're looking at 50 different sets of rules. So I called a bunch of county clerks.


 [00:03:20] (clerk montage).


Clerk [00:03:27] Are you coming in? Are you doing a license or do you want a certificate.


Hannah McCarthy [00:03:30] Yeah Nick. Which one did you want?


Nick Capodice [00:03:33] I froze up. I wasn't sure, I had to ask her which was which.


Clerk [00:03:35] It's like a driver's license. You'd get a license to get married and then afterwards we would mail you acertificate.


Nick Capodice [00:03:40] These are the two documents you need to get from the government to get married; one before and one after you tie the knot. So I obviously need a license first and the costs and requirements to get one of those not only vary by state but sometimes even by county.


Clerk [00:03:53] What you would need to bring with you is an original birth certificate for both of you or either a certified copy of your version.


Clerk [00:04:00] Both parties must be present with a photo I.D. and be at least 18 years of age.


Nick Capodice [00:04:07] Sometimes you both have to be there. Sometimes just one of you. The I.D. needed varies, it can be birth certificates or social security card or a passport. They almost always need a driver's license and the price is on average around 40 dollars but it can be as little as five dollars, in Oklahoma.


Clerk [00:04:22] If you if you go through the two together class then there is then you get a discount.


Hannah McCarthy [00:04:27] Wait what's that.


Nick Capodice [00:04:30] Some states; Texas, Minnesota, Tennessee, and Oklahoma, offer you a discount on your marriage license if you take a premarital education course.


Clerk [00:04:38] We do offer a discount for people who take 12 hours of premarital counseling through an educator of their choice.


Hannah McCarthy [00:04:46] 12 hours.


Nick Capodice [00:04:47] But in Minnesota that knocks it from 115 dollars down to 40 bucks.


Clerk [00:04:51] The bride if under the age of 50 must provide a proof of a rubella blood test or a doctor's statement regarding sterilization.


Hannah McCarthy [00:05:00] Wait. What? I mean first off why rubella. Second off why do they have to show proof of sterilization.


Nick Capodice [00:05:09] So Montana is the last state to have a blood test to get a marriage license and they're testing to see if you've been vaccinated for rubella which is also called German measles which passes onto a fetus and can cause birth complications. If you show that you've been sterilized you don't have to prove that you've had a rubella shot because you're not gonna have kids anyway. All that said the CDC claims there's about 10 cases in the nation of rubella every year and since 2007 actually in Montana as long as you and your spouse both co-sign a document and say we don't care you can opt out of the blood test.


Clerk [00:05:38] If there have been previous marriages we need to see a death certificate or a divorce decree.


Nick Capodice [00:05:45] All right here we have reached our first national constant. If you've been married before you have to provide details on the dissolution of your previous marriage to get a new one. Some states just need some relevant details and a lot of others need to see the documents.


Hannah McCarthy [00:06:03] So what happens if you say that you're divorced. But it turns out you are not. Is your new marriage just null and void.


Nick Capodice [00:06:12] Oh I asked.


Clerk [00:06:13] That is a legal question that I wouldn't touch with a ten foot pole.


Dan Cassino [00:06:18] So the marriage certificates are this great example of federalism.


Nick Capodice [00:06:21] He's been on the show so much he's got his own theme music. That's Dan Cassino, political science professor from Fairleigh Dickinson University.


Dan Cassino [00:06:27] Every state has its own rules for marriage certificates. And when you can get married and when you can get divorced and this led to a lot of forum shopping. And so libertarians and people who believe strongly in federalism are going to argue that this is the real strength of federalism, that everyone can choose which laws they want and they go and they vote with their feet. And if you are a state with good laws more people come to your state. If your state has bad laws, fewer people come to your state. What this meant in terms of marriage is that basically if you want to get married quickly you just went to a state where you get married easily. So you just went to Delaware and then you can go to Delaware and get married within three hours. You don't have to wait three weeks to have a blood test didn't have to do anything.


Hannah McCarthy [00:07:04] This is where we get the trope of the drive-through wedding in Las Vegas, right.


Nick Capodice [00:07:09] Yes. Right and this goes for divorce as well.


Dan Cassino [00:07:11] And if you wanted a divorce as recently as the 1940s if you wanted a divorce you had to go to Nevada you had to set up residency in Nevada. So sometimes you'd have to live there for as much as 60 days to establish residency and then you get divorced within a week. If you were in California for instance you wanted to get a divorce that divorce took a minimum of one year in an effort to try and get the couple to reconcile, the courts say great you filed for divorce. We'll see you in a year. And so going Nevada was actually a much easier way to do this.


Nick Capodice [00:07:38] So California no longer requires you to try to make things work for a year.


Hannah McCarthy [00:07:42] No?


Nick Capodice [00:07:43] Now it's down to six months.


Hannah McCarthy [00:07:45] Oh. But why do you even need a marriage license. It's not like driving where you could injure others if you don't know what you're doing. So why does the government make you get a license and a certificate?


Leah Plunkett [00:07:59] Because otherwise you could be married to like 100 people and how would the state know?


Nick Capodice [00:08:04] This is Leah Plunkett. She's the associate dean for administration and director of academic success at U N H law.


Leah Plunkett [00:08:10] The same way that we get a birth certificate or a death certificate, the state does very legitimately need a way to keep track of people and their various familial statuses. Again not not too focused, right. The state isn't going to ask you to get a license if you're not married to your significant other and you break up, right. You don't need to let the state know we live together for 10 years and it just didn't work out. And I'm really sad that he got to keep the cat.


Hannah McCarthy [00:08:37] But what's the reason that the government needs to know your marital status or that you're not married to like 100 people.


Nick Capodice [00:08:45] There's no federal law about it but all 50 states have laws against polygamy, being married to more than one person. Monogamous marriage is very ingrained in Western culture and in mainstream Christianity. Polygamy was allowed in Utah before it became a state. But Utah was required to ban it in its constitution to gain statehood. Some states make it a criminal offense if you have more than one marriage certificate.


Hannah McCarthy [00:09:09] So now I have to ask. I've always been so curious, what actually changes for you in the eyes of the law when you get married?


Leah Plunkett [00:09:20] Closet space. Sorry.


Leah Plunkett [00:09:25] Everything really. And and so what is what is changing is how the government regards you and your familial affairs. Not your professional affairs, right. So back even up to the certainly 1950s probably into the 1960s or even 70s in some places there were restrictions on a married woman's ability to engage in the professional workforce without going through her husband in terms of her ability to own property.


Nick Capodice [00:09:58] In 1974 the Equal Credit Opportunity Act passed in the U.S. and until that point a bank required your husband to accompany you to co-sign a credit application. Like to get a credit card.


Hannah McCarthy [00:10:13] But if you were a single woman you could get a credit card by yourself right.


Nick Capodice [00:10:18] No. You had to have a man go with you and co-sign.


Hannah McCarthy [00:10:22] It should surprise me. But it does not.


Nick Capodice [00:10:24] Also in the eyes of the law you can confide in your spouse places where you couldn't confide in your friend for example.


Leah Plunkett [00:10:32] If you're engaging in a private marital communication with your spouse no one's overhearing it you intended to be private. If there are then some sort of government proceeding against one or both of you you can claim spousal privilege in regard to the contents of that conversation. It's in that same very broad umbrella as lawyer/client doctor/patient each one of them are very different too. But that is the same basic idea of the government recognizes certain types of relationships as being so foundational to your sense of self, to your well-being, and so inherently private that they will wall them off from being able to be pierced by the government in the course of a law enforcement administrative regulatory proceeding.


Nick Capodice [00:11:26] But one of the biggest changes legally when you're married is that resources can be shared. You and your spouse can now collect assets known as joint property. You can share bank accounts you can share your stuff your house and your debts.


Hannah McCarthy [00:11:41] So if you owe money I'm mortgage and you die. Your spouse can't just walk away whistling airily, the debt doesn't disappear.


Nick Capodice [00:11:53] Right. And when you file your taxes you can choose to file them jointly with your spouse and possibly lower your tax bill. If some rando, Hannah, gave you a gift of a million dollars out of the blue you'd have to pay taxes on that gift. But married couples can exchange money gifts tax-free. Have you seen Shawshank Redemption?


Hannah McCarthy [00:12:10] Many times.


 [00:12:11] If you want to keep all that money give to your wife. The IRS allows a one time only gift to your spouse for up to 60 thousand dollars.


Hannah McCarthy [00:12:18] I think of it as like an emotional scene more than an informational scene.  I know we're a civic show not a show about the affairs of the heart. But it feels like we're being just a little cold and calculating here. Marriage is ideally an expression of love and people have fought to have the right for that expression.


Nick Capodice [00:12:40] All right. So we're gonna have to go back a little bit. Maybe more than a little bit.


Hannah McCarthy [00:12:51] Horse and Carriage a little bit?


Nick Capodice [00:12:53] Maybe further.


Hannah McCarthy [00:12:53] Magna Carta kind of far?


Nick Capodice [00:12:55] Just a quick jaunt to like 2300B.C.


Hannah McCarthy [00:13:00] Ok so the Mesopotamians.


Nick Capodice [00:13:01] Yeah. The first evidence of marriage Mesopotamia 2350 B.C. Hannah, your and my concept of marriage is super duper recent.


Stephanie Coontz [00:13:16] We tend to think about tradition and rather truncated ways.


Nick Capodice [00:13:20] This is social historian Stephanie Coontz author of Marriage a History or how Love Conquered Marriage and it's implied in the title of her book. Love had nothing to do whatsoever with marriage.


Stephanie Coontz [00:13:33] Marriage started out as as the main way that in the absence of a fully developed banking system and wage system, marriage was the main way that people raised capital, made political connections, made alliances. And it was also used as a way of recognizing the citizenship of a man. A man was not considered fully adult until he had a wife to be a co-worker. One of the things that's interesting to modern people is we sometimes think of the male breadwinner marriage as traditional. But in fact it was not through most of history. A man needed a wife to run a farm or to run a small business and in fact colonial authorities often forbade a man to open a small business or especially an inn if he didn't, if he wasn't already married.


Hannah McCarthy [00:14:29] Okay so this isn't just ancient history. This continues even to colonial America.


Stephanie Coontz [00:14:35] So by the time the colonists came to America you had two different interesting marriage systems going. that of the Native Americans which was still based on making kinship alliances and connecting groups that were far flung so that you married out of your group and you had in-laws and therefore obligations and favors with another group. But by this time the practice in England was more endogenous marriage, to marry people of the same class or in the same grouping. And that was still very tightly controlled by parents. In fact in New England one of the laws was that if you won the affection of a young woman without having had the permission of the father the young man could be whipped.


Nick Capodice [00:15:25] The reason that parents were so controlling is because until about two hundred years ago the explicit goal of marriage was to acquire useful in-laws and gain political and economic power.


Hannah McCarthy [00:15:34] So when does this shift. When do people start to choose their own spouses?


Nick Capodice [00:15:38] In the late eighteen hundreds. People start to be paid wages wage labor when work in America wasn't so dependent on your spouse and you'd like go to work for someone else instead. Marriage could kind of start to move away from this economic agreement and that's when we start to see the rise of what historians refer to as the love match; couples getting married because they want to.


Stephanie Coontz [00:16:01] But the other interesting thing that happen and this is also particularly American is that the government began to use marriage as a way of distributing resources, rights, and obligations to people that in some other countries were more universally targeted. Instead of giving a right to health care or Social Security directly to people as they aged it began to be channeled through whether they were married. So employer, you only got health care if you were married to someone who was employed to an employer who offered health care.


Hannah McCarthy [00:16:40] Why did they start to do it that way.


Stephanie Coontz [00:16:43] It was cheaper than giving universal citizenship rights to people. But also there was the sense that existed for quite a while that marriage is something that stabilizes people, especially in the years of the male breadwinner marriage, which as I say was a pretty modern invention. But in the 20th century the ideal was that if the men could earn enough to support a family the woman would stay home and take care of the kids. And therefore society wouldn't have any responsibility for that. And furthermore the man would work much harder because he had to support a family.


Nick Capodice [00:17:24] But the other side of this is that once these benefits are tied to the institution of marriage, unmarried people don't have access to them.


Stephanie Coontz [00:17:32] But the right not to marry became very much penalized because you couldn't get access to these kinds of; you couldn't you couldn't automatically choose who could inherit from you your partner wouldn't have the right to visit you in the hospital.


 [00:17:49] Excluding same sex couples for marriage thus conflicts with a central premise of the right to marry inflicting stigma uncertainty and humiliation on the children of same sex couples through no fault of their own.


Nick Capodice [00:18:00] This is Justice Anthony Kennedy reading the Supreme Court decision from Obergefell v Hodges in 2015, a narrow 5 to 4 decision which altered federal law and it required all states provide a license and legally recognize same sex marriages. Because we haven't talked about the most important way the government interacts with you when it comes to marriage, when it decides who can marry whom. That's coming up after the break.


Nick Capodice [00:18:28] To understand the history of who can get married in the U.S. I spoke with Kori Graves.


Kori Graves [00:18:33] My name is Kori Graves and I'm a Professor of History at the University at Albany, part of the SUNY system. I teach courses on marriage and family women gender and race.


Nick Capodice [00:18:45] And she explained it through the lens of three laws that were passed in Virginia.


Kori Graves [00:18:49] Because when we think about the limitations on marriage it reaches back to the earliest days of the colony in Virginia. If we look at sort of this question of Virginia and the history, Pocahontas and John Rolfe represents one of the first of what we could consider an interracial marriage.


Nick Capodice [00:19:07] Just to jump in here if you're like me and relied heavily upon the song 'fever', or if you relied upon the Disney movie for this history, Pocahontas didn't marry John Smith. She married John Rolfe. And there is evidence that she'd been married before John Rolfe, had a child, and was kidnapped from her tribe to form the alliance with Rolfe.


Kori Graves [00:19:26] That particular marriage was celebrated because it represented a kind of old alliance Old World Alliance and also the alliances that we think about in New World contexts too. But rather quickly in the colony. Individuals started to transform how they thought about that relationship because of ideas about superiority inferiority and the status of women. So she and John Rolfe married in sixteen fourteen. They had a son they traveled to England and 16 16 and she dies on the way home.


Nick Capodice [00:20:01] And at that time Virginia starts to pass laws that specifically forbid not just interracial marriage but interracial sex.


Kori Graves [00:20:07] So that begins in 1630 we see the governor ordering the whipping of a white man for interracial sex. He defiled his body with a Negro. We start to see that so as early as the 16, the mid 1600s you see that while there was a promise in the Pocahontas John Rolfe relationship of individuals imagining that you could cross certain borders, that, that begins to quickly erode.


Nick Capodice [00:20:38] One especially problematic part of the relationship was their difference in status. The British didn't see the Algonquin as equal and there was some thought that marriage could be used to help Native people be more like white Europeans.


Kori Graves [00:20:50] So it's not that this marriage represented a kind of equal footing in any way. In fact she was considered, because she was female, she would have lost her status that, the status that she had as a favored daughter in the tribe who had power and a matrilineal society. She would have lost that by becoming the wife of a British subject who understood patriarchy as the appropriate order for society and for family. So that relationship is's problematic but it also represents the first. Throughout the 1600s, 1700s, 1800s you get the elaboration of laws defining who could marry whom and these laws are always about creating a boundary between First the British colonist and later Anglos, American Anglos. That said they can only marry Anglos. So in terms of who could marry whom when we think about it as a way of creating a kind of white supremacy, and I use that word deliberately because by the time we get to the 20th century and one of the most restrictive laws about both marriage and immigration it is it is about the law itself is about preserving white supremacy.


Nick Capodice [00:22:14] In 1924 the United States passes the Johnson Reed act which is all about restrict immigration using race based quotas which by the way is not lifted until 1965. And this is why we have enormous immigration from Italy and Eastern Europe until 1924 and then it just stops. And Kori told me about another 1924 law passed, again, In Virginia.


Kori Graves [00:22:35] The state legislature passed what was called an act to preserve racial integrity. And what this law did was it prohibited any white person from marrying anyone who was not white. It also said that any interracial marriage that took place outside of Virginia, Virginia wouldn't recognize. So you couldn't go outside of the state boundaries come back and say hey we're legally married and this marriage is recognized across these borders because marriage is each state gets to define its marriage laws. So that's the law that was in place and it was again a product of centuries of defining and actually limiting who could marry whom.


Hannah McCarthy [00:23:22] How did they actually go about enforcing this? With paperwork?


Kori Graves [00:23:25] So this law specifically required things like birth certificates that you could prove who you were. It looked at things like blood quantum. But it also has a very curious exception. It was called the Pocahontas exception. And it said that a person who could claim one sixteenth or less Native American heritage could still marry a white person.


Hannah McCarthy [00:23:50] Why on earth would they create that super specific specification.


Nick Capodice [00:23:54] We're still in Virginia and this goes back to the John Rolfe Pocahontas marriage. Lots of wealthy elite first family Virginians proudly claimed descendancy from the Pocahontas John Rolph marriage and they didn't want to have to jeopardize their status. This racial integrity Act is law in Virginia until one of the most famous marriage Supreme Court cases in our history.


 [00:24:19] That there is much more deference here that there is actually one simple issue. The issue is may a state proscribe a marriage between two adult consenting individuals because of their race. And this would take in much more...


Kori Graves [00:24:32] I always think. What more fitting name than Loving. That's his real last name, is loving.


Nick Capodice [00:24:43] 1958 Richard and Mildred Loving got married in Washington D.C. because they couldn't marry in Virginia because he was white. She was an African-American. And they returned home.


 [00:24:56] It was about 2am, and I saw this light you know and I woke up and there was the policeman standing beside the bed. And he told us to get up and that we were under arrest. And they told us to leave the state for 25 years.


Hannah McCarthy [00:25:10] They have to leave for 25 years. They'd have to completely dismantle their life.


Nick Capodice [00:25:15] And they did. For their marriage. They left their jobs their home their family and they moved to D.C. and they were arrested when they just came back to visit their hometown.


Kori Graves [00:25:25] And this case would actually make its way through the Virginia State Supreme Court to the U.S. Supreme Court and it would be Loving v. Virginia that would establish the right to marriage as a protected civil right. Chief Justice Warren would offer the argument that marriage was, and this is a quote, one of the basic civil rights of man. And the end here is is added to deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in the Virginia racial integrity clause is surely to deprive all the state's citizens of liberty without due process of law.


Nick Capodice [00:26:09] This was a unanimous decision by the way in 1967 but it still meant that each state had to change their laws so Virginia did in1968. West Virginia Florida Oklahoma and Missouri in 1969 North Carolina in 1970 Georgia Louisiana and Mississippi in 1972 Delaware and Kentucky in 1974. Tennessee in 1978 South Carolina in 1998 and Alabama in 2000.


Hannah McCarthy [00:26:43] This is like what we continue to hear about officials refusing to grant licenses to same sex couples. As we speak. Even though the decision came down years ago that same sex couples can marry.


Nick Capodice [00:26:57] Right and the Loving decision was cited in that case Obergefell v. Hodges and it's not just officials it's politicians who are proposing bills.


 [00:27:05] Specifically a bill that was just filed in the Tennessee legislature, the Tennessee natural marriage Defense Act and this would define a natural marriage as between a man and a woman of course we know there's going to be lots of strong opinions on this...


Nick Capodice [00:27:25] Last thing we should talk about for the end is the end. When a marriage just doesn't work. The 2019 divorce rate in the United States is about 39 percent.


Hannah McCarthy [00:27:36] Okay. When did divorce start to become a common thing in America.


Nick Capodice [00:27:40] Stephanie Coontz told me about that.


Stephanie Coontz [00:27:42] With the development of the love match and this was one of the tremendous complaints that defenders of the real traditional marriage of political and economic convenience had against the love match. They said, look, if you say marriage is about love people are going to demand the right to divorce. If marriage ceases to be about love and that has been a steady steady increase in demands. They began to liberalize a little divorce right fairly early in the colonies that happened more after the American Revolution but still our laws right up until 1970 were based on fault based divorce that you had to show that the other party was at fault.


Nick Capodice [00:28:24] And if you're wondering what can justify a fault divorce the most common grounds are adultery, abandonment, prison confinement, one spouse is physically unable to have sexual intercourse, or one spouse has inflicted emotional or physical pain on the other.


Stephanie Coontz [00:28:41] And many people romanticize this, they think oh marriage was more stable under fault-based divorce but fault based divorce was really weird. You had to come to the was,  this is the way the courts put it, with clean hands if you wanted a divorce. In other words if you came in and couldn't prove that you had done nothing to contribute to the complaints of which you you were wanting for which you were wanting the divorce you couldn't get a divorce. There was a divorce in the 1930s in the state next to mine, Oregon Mauer versus Mauer. The court found that the family lived in terror of the man's you know terrible temper and temper tantrums but they found that the wife had thrown pots at the man a couple times. So therefore since neither party came to court with clean hands neither of them could have a divorce.


Nick Capodice [00:29:33] In 2010 New York State became the 15th state to allow for no fault divorces. So now you can get one all over the country. One or both of the spouses has to claim that the marriage is "irretrievably broken" or you have irreconcilable differences.


Hannah McCarthy [00:29:51] But still in California and you told me you got to wait six months before you can get divorced.


Nick Capodice [00:29:58] Sure do. And in Virginia you have to live apart from your spouse for a year uninterrupted or if you have kids six months. Seventeen states require divorcing parents attend a divorced parent education class.


Hannah McCarthy [00:30:09] All of that statutory red tape aside I do feel like we have come a long way since the Mesopotamians.


Nick Capodice [00:30:17] Wwe have and so much of it is so recent. Stephanie Coontz told me that for thousands of years the institution of marriage is relatively unchanged. But when we start with the love match moving through the 19th 20th century, especially the last 40 years, the benefits of being married are covered in other places.


Stephanie Coontz [00:30:36] Americans no longer feel that marriage is essential to have a successful life. Back in 1950, 85 percent of Americans said that it was immoral or deviant or psychotic to want to be single not to be married. And there were all sorts of social and legal sorts of discrimination that occurred if you were not married. Nowadays people accept that you can have a good successful single life but marriage is not central. But at the same time as we have stopped valuing marriage so much as a mandatory institution we have actually increased our expectations of it as a good qualitative relationship. And the paradox is that we expect more of marriage when we're married and we do marriage better, most of us when we're married than people of the past. There's less domestic violence, there's more equality there's more sharing there's more intimacy, but people aren't willing to enter or stay in a marriage that doesn't live up to that. And so people are postponing marriage.


Hannah McCarthy [00:31:43] It's almost like she's saying we're more likely to marry for love and like a really solid well-established love because otherwise women and LGBTQ people have actual codified rights now. And so like I can get a credit card, I can own property, I can adopt a child by myself if I want to. I don't have to marry a man to live out certain important steps of life.


 [00:32:13] So now are a little hypothetical American has been born, educated, worked, married, divorced and after all that stuff isn't it time that this American had a break, Hannah.


 [00:32:27] I think it is but that's next time on Civics 101.


 [00:32:43] That'll just about do it for today. This episode was produced by me Nick Capodice with you Hannah McCarthy. Our staff includes Jacqui Helbert Ben Henry Daniela Vidal Ali and Erika Janik is our executive producer and killer of Darlings. Maureen MacMurray and her husband Danny totally go boing.


 [00:32:58] Music In this episode is by Broke for Free. Chris Zabriske Kilo Kaz, Lee Rosevere Scott Gratton, Spazz Cardigane and this year is time.


 [00:33:07] I love me some time. Carl if you like Johnny is Kovac gonna hop out any minute and push me off my bike.


 [00:33:11] Seventy one is supported in part by the C P B and is a production of N H PR New Hampshire Public Radio and it is supported in part by you gentle listener.


 [00:33:21] Thank you so much to those of you who given already. If you haven't got a civics one to one podcast dot org. Check out the kind of swag we have on offer and thank you so much.







Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Life Stages: Work

The modern day workplace is the product of a centuries-long battle for fair wages, reasonable hours and safe conditions. Today's episode tells the story of the labor in the United States -- from slavery and indentured servitude to the Equal Pay Act and the weekend. What did Americans workers have to go through to make their voices heard, and how did they change labor in America?

Our guests include Priscilla Murolo, Philip Yale Nicholson and Camille Hebert.

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Please note: this transcript may contain discrepancies.

Civics 101 Life Stages: Work

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

Nick Capodice [00:00:08] Hey Everyone.

[00:00:09] This is Nick.

Hannah McCarthy [00:00:09] And this is Hannah McCarthy. We have a kind of exciting announcement for everyone. Those of you who may remember a year ago when we asked for support to keep the podcast up and running we did it to appeal to the goodness of your heart.

Hannah McCarthy [00:00:21] This time around we want to give you a little something that we want to say thank you. Materially.

Nick Capodice [00:00:27] We got magnets. We've got stickers.

[00:00:29] We got water bottles. We got totes and we have an adorable Civics 10-Onesie for a 6 month old baby that says future voter on the back.

Hannah McCarthy [00:00:36] It's the cutest thing in the world.

[00:00:37] But the one we wanted to talk about today is the Civics 101 tote bag.

Hannah McCarthy [00:00:40] That's right.

Nick Capodice [00:00:41] Hannah you like totes right.

Hannah McCarthy [00:00:43] I don't I don't just like totes totes or part of my identity.

Nick Capodice [00:00:48] I don't have any tote bags. I mean I'm not a tote scholar like you. What is this that you've sort of slung on the table.

Hannah McCarthy [00:00:55] What have I. What have I brought to us?

Nick Capodice [00:00:56] What hath Hannah wrought?

Hannah McCarthy [00:00:57] I have brought in at least a dozen totes here stuffed into one of my favorite totes the WNYC bag.

Nick Capodice [00:01:05] Classic tote.

Hannah McCarthy [00:01:05] But I guess hell you think you know none of these totes are quite right. You know none of these are quite Goldilocks' is perfect bed. I mean let's take this for example.

Nick Capodice [00:01:16] What does that horror.

[00:01:18] Oh god is that NHPR.

Hannah McCarthy [00:01:20] This is an NHPR tote. We've since changed to a canvas. This is not a canvas tote. This is some kind of vinyl.

Nick Capodice [00:01:26] Yeah.

Hannah McCarthy [00:01:28] Okay. All right so here is a nice canvas tote right. We like the canvas. This tote is actually the same size as our tote and it's a perfect size I can carry everything in this thing. My only quip is that the handles are just a little too short.

Nick Capodice [00:01:42] How short are those handles.

Hannah McCarthy [00:01:44] I think these are twenty four inches.

Nick Capodice [00:01:45] Okay. Our tote is the same size 15 by 15 and a half inches and the handles are 26 inches.

Hannah McCarthy [00:01:50] So that's that's a dream come true.

Nick Capodice [00:01:52] It's a huge difference.

Nick Capodice [00:01:54] All of your natural canvas white totes are pretty hideous.

Hannah McCarthy [00:01:58] They are pretty... well --

Nick Capodice [00:02:00] They're stained,.

Hannah McCarthy [00:02:01] They're loved.

Nick Capodice [00:02:01] Okay.

Hannah McCarthy [00:02:02] But yes they're stained they're quite stained.

Nick Capodice [00:02:04] So the Civic's went to one toad is black with the logo in yellow and white on top of it. It's a very striking very professional design. There's a ton more besides the tote that you can see if you go to Civics 101 podcast dot org. Have a look at the different gifts we have on offer for a mere five dollars a month as a sustainer for Civics 101, you get this beautiful tote.

Hannah McCarthy [00:02:25] Go to Civics 101 podcast dot org to check it all out and thank you in advance for your kind contribution.

Nick Capodice [00:02:32] On to the episode.

Hannah McCarthy [00:02:40] Nick can you believe that we're at work right now.

Nick Capodice [00:02:42] Yes. That is where we work.

Hannah McCarthy [00:02:44] But I mean our job is to learn stuff and then tell other people what we've learned.

Nick Capodice [00:02:50] Yeah I see what you're getting then we got a bit of a dream job here.

Hannah McCarthy [00:02:53] We got a bit of a dream job. Also the hours are reasonable.

Nick Capodice [00:02:56] True.

Hannah McCarthy [00:02:57] We aren't locked into the building.

Nick Capodice [00:02:58] Also true.

Hannah McCarthy [00:03:00] The air is breathable.

Nick Capodice [00:03:02] Yeah.

Hannah McCarthy [00:03:02] Nobody physically threatens us.

Nick Capodice [00:03:05] Hold on.

[00:03:05] Not that I'm not grateful and all but can I just say of course we're not Lowell mill girls in nineteen hundred. We're Republic radio hosts in 2019.

Hannah McCarthy [00:03:15] That's a good point. But you know we didn't get here by accident. People had to ask for better conditions demand better conditions our jobs look the way they do because of hundreds of years of protests strikes rallies negotiations and legislation.

Nick Capodice [00:03:31] So it all started back in the 20th century.

Hannah McCarthy [00:03:34] Actually we get to go back even further than that way back. The story of work in the United States begins before we were the United States and my work in the United States by the way is cohosting Civics 101. I'm Hannah McCarthy.

Nick Capodice [00:03:48] And I'm Nick Capodice. And to understand the way that work works in this country.

[00:03:58] It helps to understand where we came from in order to get to ergonomic office chairs and lunch breaks and safety measures and a living wage.

[00:04:11] We had to pass through grueling hours child labor factory fires and futile strikes. Through unpaid labor servitude and abuse through the enslavement of millions of people in the name of capitalism.

Priscilla Murolo [00:04:34] Well.

[00:04:34] The vast majority of working people in the colonies were bound laborers in some way.

Hannah McCarthy [00:04:42] This is Priscilla Murollo. She's a history professor at Sarah Lawrence and co-author of From the Folks who Bought you the Weekend.

Priscilla Murolo [00:04:49] They might be apprentices who were legally bound to work for their master craftsman. They might be indentured servants who were bound for a period of years or they might be enslaved. But they were bound to in some way wage work as we know it. Selling your labor and having the right to quit an intolerable job was quite rare.

Hannah McCarthy [00:05:14] When Priscilla says bound laborers. She is talking about people who cannot quit. Some were obligated to work for say a master craftsmen for a period of time so that would be an apprentice working in exchange for learning a craft. Others were indentured servants working to pay off a debt like passage to America. Those were almost without exception white people and then there were those who are obligated to work because they were enslaved and owned by another person. Those were almost without exception people of color. Work was a very different thing for most people in colonial America than it is today.

Priscilla Murolo [00:05:52] The settlers of that colony preferred indentured labor to enslaved labor because it was more expensive to buy in and enslaved workers than it was to buy and intentioned workers someone enslaved only for a short period of time and chances were that the Labor was only going to live a few years anyway because the work was very hard and the swamps carried a lot of fever.

Hannah McCarthy [00:06:20] But it wasn't just hard risky work that went into being an indentured servant. These positions were oppressive and bound by contract indentured servants were forbidden to quit. They needed permission from their master to get married. They were sometimes beaten.

[00:06:36] But if they lived long enough they would eventually work off that debt.

Nick Capodice [00:06:43] Right. And their conditions were I imagine were nowhere near as bad as enslaved people.

Hannah McCarthy [00:06:48] Right. That's a good point. We're going to be talking about a perception of some common experience here but enslaved people were bound for life. They were often shackled whipped. Mutilated. Sexually assaulted and sometimes murdered. In many states they were forbidden from being educated. And in all cases actively deprived of personal identity and a sense of humanity. Indentured Servants. By contrast did live under harsh and restricted conditions but they had some rights. The commonality here is being bossed under oppressive conditions of some kind.

Priscilla Murolo [00:07:32] People resist being bussed in all kinds of ways sometimes just passively and sometimes through confrontation. But they have historically resisted it and this is the heart in many respects of the labor movement.

[00:07:48] That and the notion of solidarity.

Hannah McCarthy [00:07:52] Solidarity standing together against a common enemy even though indentured servants were by no means in the same camp as enslaved people.

[00:08:01] Both groups lived under the thumb of the ruling class.

Priscilla Murolo [00:08:04] Especially after a big rebellion in Virginia in 16 76.

[00:08:10] A hundred years before the American Revolution the rebellion called Bacon's Rebellion. This was a big uprising of indentured servants and slaves together.

Hannah McCarthy [00:08:20] This Bacon guy he considered all indigenous peoples to be the enemy of the colonists. He wanted to attack both friendly and defensive tribes and the governor of Virginia was just not having it. So Bacon rallied support.

[00:08:35] He promised freedom to all servants and enslaved people who would join his cause indentured servants united with enslaved people in a common cause. All sharing the bond of bound servitude and this was alarming for the elites.

Priscilla Murolo [00:08:57] The fathers of Virginia the ruling fathers of Virginia thought when had to find a way to divide these two groups and one of the things that they did was to get more generous in the good conditions of bounds laborers to begin to segregate in the law.

Nick Capodice [00:09:16] So the people in charge see the possibility of a unified oppressed class and they're like No way gonna nip this in the bud right.

Hannah McCarthy [00:09:24] Right. They crafted this stark division between races by providing indentured servants and non land owning white males with more rights and power and they passed laws that made relationships between those indentured servants and enslaved people untenable.

Priscilla Murolo [00:09:41] For example if you ran away.

[00:09:44] From slavery or you ran away from an intense shirt you would be punished under the law. But if you ran away together a slave and an indentured servant together they would be punished more severely.

Hannah McCarthy [00:09:56] So now you've got this perception of enslaved people at the bottom of the work ladder and indentured servants are rung above. And Virginia lawmakers also start to lean into language around African descent in 16 22. They codified the idea that slavery is hereditary and lifelong and that basically anyone of color brought into the country as a servant should be considered a slave.

Nick Capodice [00:10:22] So now just just the shade of your skin can mean that you're going to be enslaved or associated with slavery.

Hannah McCarthy [00:10:29] Right. And on top of that they've given white people some rights and power regardless of their status. And that intensifies this us versus them dichotomy and the white US stretches across economic classes for example by the mid 1400's you no longer need to own property to vote. The political parties are still run by elites but those elites now want to woo working whites.

Priscilla Murolo [00:10:55] They want those votes. They want that support to say we have something in common because we are white. I may be a plantation owner and you may be scratching along as a shoemaker but we're both white so we have something in common.

Hannah McCarthy [00:11:16] We'll come back to Priscilla in a moment but I want to introduce another person here.

Phillip Nicholson [00:11:20] I am Philip Nicholson. I'm Professor Emeritus retired from Nassau Community College after 46 years. I guess you could call me Phil but I mean you can introduce me as the author of a book I guess that you came across that seemed to be provocative enough for you to invite me to talk to you about the issues that you're going to bring forward today.

Hannah McCarthy [00:11:44] That book is Labor's story in the United States. And Phil starts that story in the same place Priscilla does with slavery.

Phillip Nicholson [00:11:53] Slave labor that is labor without any rights whatsoever.

[00:11:57] No human rights no civil legal rights no liberties that is rights under the law whatsoever. And that was the preferred and dominant system and when the revolutionary era unleashed calls for Liberty Give me liberty or give me death it awakened the rest of the population including women and some slaves and the formation of antislavery societies start in that period of the revolutionary era and the concept of liberty itself. That is the attainment of rights under the law.

Hannah McCarthy [00:12:31] This idea of liberty catches on in a way that perhaps the elites the orchestrators of the Revolutionary War had not intended employees and enslaved people see the possibility of control over their own lives and their own destiny and that includes control over their work experience in addition to growing abolitionist sentiment.

[00:12:54] There was growing unrest among workers.

Phillip Nicholson [00:12:57] When they first sought to organize if they if you could call it that they didn't even call them unions then.

Nick Capodice [00:13:03] Unions.

Hannah McCarthy [00:13:04] Unions.

International Ladies' Garment Workers' Union [00:13:09] "Look for the Union Label".

Hannah McCarthy [00:13:14] Kind of a union more specifically labor union or a trade union is an organization of workers dedicated to protecting themselves and others in their same field whether it's about wages or hours or working conditions. Most collect dues to keep their activities up and they negotiate with employers they lobby Congress. But the first people who tried to do something like this got into big trouble.

Phillip Nicholson [00:13:39] They were found guilty of engaging in a conspiracy to raise their wages.

Hannah McCarthy [00:13:48] The "they" Phil is talking about is the Federal Society of journeymen Cordswainers of Philadelphia. They were shoemakers employed by master craftsmen and they worked crazy hours to meet the footwear demands of the states but they didn't make very much money. So they organized into this society and demanded more pay for as a judge saw it. They committed conspiracy.

Phillip Nicholson [00:14:10] That's actually from the original 1906 indictment a conspiracy an illegal conspiracy to raise wages and they lost that case and they began in various towns and cities to fight through the local state or city courts and legislative bodies to win the right to associate with one another and they were not successful for the first 25 or 30 years in winning those battles.

Hannah McCarthy [00:14:36] The problem wasn't just that they got low pay.

[00:14:39] It was that the court was essentially saying it's illegal to organize and ask for more from your employers. But that didn't stop all kinds of workers from trying. Here's Priscilla again.

Priscilla Murolo [00:14:50] The first political parties to raise that issue appeared in the late 1920s they were known as the working men's parties that are mostly in the northeast and they had a much more expansive vision of us and them. They thought of themselves as speaking for working men and women usually white working men and women but not necessarily only white working men and women. And they thought of the other as their enemies as the the rich the elite.

Hannah McCarthy [00:15:27] The working class pitting itself against the elite.

[00:15:31] It's something that we've come close to before which is why legislators passed those racist laws that pretty much cemented the fate of people of color in the United States and kept organizing a cross working groups at bay. But this sense of commonality between poor working whites and wealthy elites started to shift with the dawn of the industrial revolution. We went from smaller scale operations and a lot of agriculture work to factories everywhere and with them came terrible working conditions grueling hours and workplace injury.

Priscilla Murolo [00:16:08] There was considerable support for the abolition of slavery among mill workers and Newling England. And it's not too hard to explain because they worked under terrible conditions in cotton mills processing cotton that was cultivate and under terrible conditions by slaves and they often identified with those other workers in the production process and formed antislavery associations that would be based in a factory or based in a union such as the Knights of St. Chrispin which represented shoe workers.

Hannah McCarthy [00:16:49] There was antislavery sentiment among workers. But it's important to note that some of that sentiment came from self-interest rather than empathy. The whole country was propped up on two co-dependent industries. You had planting and manufacturing cotton and mills in the north. Industrial capitalists exploited their workforce and in the South plantation owners exploited theirs. And while having a common enemy does not mean that white Americans saw enslaved or free people of color as being equal to them. Same goes with men and women across these groups. It was at least agreed that the expansion of slavery needed to be curbed so there were protests and strikes against the industry.

Nick Capodice [00:17:33] But after slavery is finally struck down you've got this massive population of freed people who need to work and they live in a part of the country that has been hostile to the very idea that they should be anything other than property. Does the sentiment of fair wages and better working conditions suddenly extend to these newly free people.

Priscilla Murolo [00:17:51] Certainly workers hope there would be prayed there would be demanded changes. Organized workers right after the Civil War are said. Now we have defeated slavery. Now we have defeated the most anti labor reactionary system we could imagine and we now hope to use this as a basis for remaking the whole society. Extend freedom to everyone and maximize everyone's freedom. But that is not what came to pass as we know.

Hannah McCarthy [00:18:26] What did come to pass is that Southern legislators severely limited all kinds of freedom for freed people including freedoms having to do with Labor after Reconstruction in the state of Mississippi.

Priscilla Murolo [00:18:38] It was a criminal offense. It could go to prison for breaking a labor contract and you were expected to sign up for a labor contract for should run for an entire year. So you would wind up a sharecropper working for the same. Family that hed own to you when you were enslaved and you under the state law you had to sign up to work for a year and if you left if you thought well I could do better by you I'm going to move from Mississippi to Chicago. That was illegal.

Hannah McCarthy [00:19:16] It was also a crime to not have a job. Many freed people ended up as tenant farmers or sharecroppers and accrued debt that lasted through generations.

[00:19:27] Which meant they were something akin to indentured servants to the families that had once owned them.

Nick Capodice [00:19:33] So this is a real catch 22 right. You're not allowed to quit your job to go look for another job. But you can't also not have a job right.

[00:19:45] Did those farmers ever attempt to unionize.

Hannah McCarthy [00:19:48] Yes the Alabama sharecroppers union came around in 1931. It was open to all races but membership was solely African-American. They staged huge strikes against landowners for fair wages and more rights. And they succeeded sometimes. But there were also violent clashes and more failures than successes.

Nick Capodice [00:20:08] So what I'm hearing is that more failures than successes is kind of the theme of the labor movement so far. But I look at my job today and I know over time things improve because of that movement. How do we get to this point.

Phillip Nicholson [00:20:21] The biggest strikes the biggest struggles in what is called after the Civil War a kind of heroic age of labor as one of their heroes a woman who I came to admire Mary Harris Mother Jones once said Those were the years of the martyrs and the saints the decades after the Civil War when the biggest battles and there were national strikes and walkouts and even almost a national general strike and the upheavals of 1877 when workers in huge very impersonal very dangerous industries mining coal minerals hard rock mining out west and the Rocky Mountains and of course in steel in various ways engaged in some of the biggest labor battles in all of American history.

Nick Capodice [00:21:14] So the labor unions kicking but all across the USA.

Hannah McCarthy [00:21:18] Well they never quite kick butt or if they do it's through a thousand tiny largely ineffectual kick's because they often do not get what they want but the noise that unions make that does make a difference. As the decades wear on meetings and protests turned violent people are killed in the name of better conditions. Buildings are burned. Machinery is destroyed and strikes were massively disruptive to industry. So legislators start to listen. Yeah we're actually going to speed ahead in time now because this is when things really start to pick up. Working conditions spark social movements like the child labor movement and the black freedom movement after the Great Depression under President Roosevelt's New Deal America. The Fair Labor Standards Act was signed in 1938. This puts an end to oppressive child labor standards. It brings us the minimum wage and overtime pay and the 40 hour work week.

Nick Capodice [00:22:18] And the weekend.

Hannah McCarthy [00:22:19] The hallowed weekend. In 1964 we get antidiscrimination laws and a right to equal pay.

[00:22:26] In 1970 we get a right to health and safety in the workplace. And it's a constant battle of worker versus industry with social and labor movements working in tandem to have their needs and wants met workers just don't shut up and it makes a difference. But what exactly did we get out of all of those decades of strife. What did all of the changes in the American workplace actually provide to the American worker. That's coming up after the break.

[00:23:00] "Which Side Are You On?"

Hannah McCarthy [00:23:39] Welcome back to Civics 101.

[00:23:41] Let's get to work.

[00:23:46] Work in the U.S. has come to be defined by the victories of the labor movement and for the record that history is rich and varied and complicated. And we have had to skip over most of it to get to today. But you should know that most unions in the country today are under either the AFL CIO that's the American Federation of Labor and Congress of Industrial Organizations or the change to win federation. Now what does work in America look like today.

Camille Hebert [00:24:15] Yeah sure. So my name is Camille Hebert. I'm a professor of law at the Ohio State University Moritz College of Law.

Hannah McCarthy [00:24:22] Camille teaches labor employment discrimination and employee benefits law. I asked her to run me through the ins and outs of protections rights and limits in the world of employment. And it turns out that the federal government has established a lot of rules and regulations for the workforce.

Nick Capodice [00:24:40] So let's say I don't even have a job yet.

[00:24:42] Am I protected even during the interview process for a job?

Camille Hebert [00:24:45] So yes the federal prohibition against discrimination which is generally race sex religion national origin age disability apply both of being employed stage and applying antidiscrimination is in a lot of state laws as well but it was the Civil Rights Act of 1964 that served as the hallmark. It's unlawful to refuse to hire someone because of a particularly protected category. It would also be unlawful to engage in sexual harassment at a job interview and I kind of laugh thinking Well that wouldn't happen but I've actually read cases where it did where there was actually harassment.

Hannah McCarthy [00:25:24] Yeah. A major theme of my conversation with Camille was my being disappointed that this stuff still happens in the workplace or anywhere for that matter. That's why we have these laws. That's why I'm telling you about them. So let's say you have a disability. What does that mean for you in the job interview process?

Camille Hebert [00:25:44] Particularly for disability.

[00:25:46] You have to show that you are a qualified individual a disability which essentially means you can perform the job the essential functions of the job either without any help or with accommodation with reasonable accommodation.

Nick Capodice [00:26:02] All right. So what happens if I suspect that I wasn't hired because of discrimination of the employer do I sue.

Hannah McCarthy [00:26:08] You can try and if you do prove it. If you're right if you win.

Camille Hebert [00:26:12] Courts will often order employers to hire. So you have to prove generally intent to discriminate on the part of the employer. Sometimes with a disability law it's a little easier sometimes to prove that because employers generally can't ask about disability at least nonobvious disability until after they've made an offer.

Hannah McCarthy [00:26:41] Now let's say you got the job. It's an office gig you're going to be in charge of answering the phone and you're talking wages with your new boss and your boss says look I'm going to pay you four dollars 50 cents an hour, capisce?

Camille Hebert [00:26:55] I mean you you have to be paid at least the minimum wage. And so if an employer says no or only hire you if you work below the minimum wage and you say no I won't do it then you can sue. You can sue for a violation that's the fair labor standards act is what does the minimum wage.

Nick Capodice [00:27:13] So the minimum wage in America is 725 right now right.

Hannah McCarthy [00:27:16] Yes.

Nick Capodice [00:27:16] And some of these can go higher. But no states can go lower than that.

Hannah McCarthy [00:27:19] Exactly. I also know that even though we have that law. If I'm a waiter or a bartender I will not get that minimum.

Camille Hebert [00:27:26] So there's a couple of exceptions for tipped employees can get a smaller minimum wage it's like two dollars and 14 cents. Really low as long as the tips make up the difference between that and the minimum wage.

Nick Capodice [00:27:42] So someone gets hired in this cushy phone answering job. What happens if you start the job and then they hire this guy Bob to answer phones with you. Bob is getting paid more than you. Is that somehow all right.

Camille Hebert [00:27:55] So there is a federal statute that prohibits men and went pay in men and women different wages for the same job it's called the Equal Pay Act. 1963 it was enacted but it requires you literally to show that it is the same job not worth the same but the same job.

Hannah McCarthy [00:28:17] Let's say that it's a woman who is hired for this phone answering job. And Bob gets hired and FAAB happens to be a man. If Bob is getting paid more than me and we're working the exact same job like same hours same amount of responsibility same effort same output then that woman might have a case she would have that case under the Equal Pay Act.

Camille Hebert [00:28:42] Right.

[00:28:43] Equal pay act only applies to sex. So if you're going to sue for race or any other category you have to do it under Title 7 or the age act.

Nick Capodice [00:28:53] Title 7 of what?

Hannah McCarthy [00:28:54] That'd be Title 7 of the Civil Rights Act. So if you're a person of color being paid less for the same job as a white co-worker you can sue according to discrimination on the basis of race. The Age Act of 1975 works in a similar way.

Nick Capodice [00:29:09] What about other workplace protections. I'm thinking about these places that have terrible conditions terrible bosses throughout history. No no wages were behind a lot of strikes and a lot of organizing. But the workplace was too right.

Hannah McCarthy [00:29:24] Oh yeah big time.

Camille Hebert [00:29:25] So harassment is covered on the same grounds as any other discrimination. So sex religion race national origin disability age.

[00:29:37] Most people hear about sexual harassment and that's what they think of and they think of it as something sexual which of course sexual harassment does generally require sexual conduct but harassment can also just be creating a hostile environment.

Hannah McCarthy [00:29:52] Things like yelling at your employees denigrating someone in the workplace making fun of someone for their religious beliefs. Harassment violates a lot of laws. It's covered in the Civil Rights Act the Age Discrimination in Employment Act and the Americans With Disabilities Act. There is a catch though harassment has to be either severe or pervasive or both.

Nick Capodice [00:30:17] So I have to be like either superduper harassed or harassed for months or years. What if someone's just making me feel bad.

Hannah McCarthy [00:30:25] Well that's unlikely to be enough for a case. Also harassment doesn't often have an audience right. So how do you prove that you're being harassed. E-mails are good but what if you don't have them.

Camille Hebert [00:30:37] Yeah if you don't have proof it's no one person's word against the other. I actually really hate when I hear you know he said she said because it just really bothers me sort of that notion you know that if you don't have outside proof somehow your own word that it happened isn't sufficient. Right. I mean it can be. It's just really hard courts are reluctant to find employers liable if it's only the woman's word about what happened thought always a woman can be a man also.

Nick Capodice [00:31:17] I know that's the way law goes.

[00:31:19] In America you're innocent until proven guilty and the burden of proof is on the victim. But it seems almost impossible to prove you've been discriminated against or harassed.

Hannah McCarthy [00:31:28] Yeah I hear you. And sometimes these cases involve that power imbalance or fear of losing your means of income fear of being fired in retaliation for speaking up. And speaking of being fired you know many employees are considered something called at will. And that means that they can quit for any reason. But it also means that their employer can pretty much fire them for any reason or no reason. Employers can read anything you wrote on a work computer. They can monitor what websites they're accessing on your phone if you're using workplace Wi-Fi. They can listen in to any call in a work phone until it's obviously personal. They can't even ask you about that sick day you took last Friday.

Nick Capodice [00:32:09] All right so labor unions and social movements pushed and they pushed and they push for rights and protections. But it's not like they stripped employers of total control.

Hannah McCarthy [00:32:17] Right. Employers still have plenty of power and protection but I think the important thing is that these laws do deter employers from discriminating against or harassing employees and they give us stuff health insurance.

Camille Hebert [00:32:34] What I'm thinking of is the Affordable Care Act. You have to be certain employers have to provide health insurance to full time employees and those are employees who are more than 30 hours a week overtime. I think the biggest misconception is that salaried employees are not eligible for overtime. It's actually the opposite to be exempt from overtime. You have to be salaried for the most part. Child labor laws. So the Fair Labor Standards Act has minimum wage overtime and child labor provisions. So they're for children under the age of 18 or 16 depending on the occupation. There are limits on how many hours you can work. Usually it's you know outside of school and you know certain only a certain number of hours during the school year.

Hannah McCarthy [00:33:19] We also have to have our disability reasonably accommodated and our employers have to protect our health safety and welfare when we're at work. If we're fired and it wasn't our fault we get unemployment pay.

Nick Capodice [00:33:32] When you look at the whole trajectory of work it's kind of remarkable that we got here and it looks this way at all right in large part because workers fought for the right to even just come together. They demanded it and then they kept pushing.

Hannah McCarthy [00:33:47] And things are still changing. There are state laws that take a lot of these federal laws and run with them. Some states mandate paid family and paid sick leave and some raise their minimum wage and some ban employers from asking you what your former wage was in order to break a cycle of unfairly low salaries especially for women and people of color. My favorite part of the story of work in America is that workers found a way to improve the system that they found themselves in and make it work for them. We do have a right to try and make things better.

Nick Capodice [00:34:36] One thing about workers rights you didn't mention.

Hannah McCarthy [00:34:38] Oh what.

Nick Capodice [00:34:38] It is illegal for an employer to ask an employee about their marital status. Same goes for you have kids are you planning to have kids.

Hannah McCarthy [00:34:45] That's actually a good rule. Where'd you hear it.

Nick Capodice [00:34:48] I've been doing a lot of reading on marriage divorce relationships in general and there's a lot more there like a whole episode a lot. That's next time I'm Civics 101.

Hannah McCarthy [00:35:07] Civics 101 is produced by me. Hannah McCarthy with Nick Capodice. Our staff includes Jackie Helbert Ben Henry Daniela Vidal Allee and Erica Janikis our executive producer.

Nick Capodice [00:35:17] Maureen McMurry pours herself a cup of ambition each and every morning.

Hannah McCarthy [00:35:21] Music in this episode a Blue Dot Sessions, the International Ladies Garment Workers Union, Lobo Loco the Almanac Singers, South London Hi-Fi. Daniel Birch and Geographer.

Nick Capodice [00:35:31] There is lots more to see and learn on our website civics 101 podcast dot org. And while you're at it subscribe to our newsletter. That's where we put all the tangents and fascinating tidbits that can make in our episodes and it's awesome.

[00:35:43] If I do say so myself.

Hannah McCarthy [00:35:46] Civics 101 is a production of NHPR -- New Hampshire Public Radio.

[00:36:08] Civics 101 is supported in part by the Corporation for Public Broadcasting.




Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Life Stages: School




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Civics 101

Life Stages: School




Nick Capodice [00:00:07] Do you like middle school?


Hannah McCarthy [00:00:10] I loved middle school. That's why I really came into my own in theater. I did great in middle school. How about you, Nick?


Nick Capodice [00:00:18] This was so...this was like the apex of my mediocrity as a human. Like I had a tough time in middle school.


Hannah McCarthy [00:00:27] Mediocrity, what does that even mean.


Nick Capodice [00:00:30] I was just like this was like when I was the most awkward. Had no idea who I was or what I was doing.


Hannah McCarthy [00:00:37] But that's every human being on the face of the planet!


Nick Capodice [00:01:16] I'm Nick Capodice


Hannah McCarthy [00:01:17] And I'm Hannah McCarthy.


Nick Capodice [00:01:19] This is Civics 101, our Life Stages series. And today we're going to school. If I sounded a little pathetic there it's because Hannah and I weren't just visiting a random middle school, we were visiting my old school. Merrimack Valley Middle School. Which was a great school! I played logo. I watched all the president's men. But it had been 25 years and it smelled exactly the same and all that stuff just came flooding back.


Hannah McCarthy [00:01:43] I wonder can you just opt out. Do you even have to go to school.


Dan Cassino [00:01:49] No.


Hannah McCarthy [00:01:51] I know that no.


Nick Capodice [00:01:52] Yeah. That's Dan Cassino political science professor at Fairleigh Dickinson University.


Dan Cassino [00:01:56] And this actually kind of weird. This is one of those ways in which America is exceptional, that we're different than other parts of the world. So if you were in France you wouldn't have a choice about whether or not your kid was going to public school. Everyone goes to school. You don't have a choice. If you want send your kid to church afterwards, great. Have a blast. But you have to send your kid to public school. Everyone has to get an education. In the United States, we've actually relaxed that. That was the law in most states up until the 1960s. What happened was the Amish.


SCOTUS archival [00:02:26] The Amish are in a fortunate position respecting the schooling which they conduct for children beyond the 8th grade. It is learning by doing. An ideal system.


Dan Cassino [00:02:36] The Amish do send their kids to school but they typically take their kids out of school around eighth grade. The state of Wisconsin started going to Amish families in fining them for truancy saying your kid is not showing up to school you're going to get a fine for truancy and your kid has to go to school whether you like it or not because everyone has to go to school. The Amish then sued, saying this was an infringement on their religious rights. Saying look we don't want our kids to learn about all the sinful stuff you learn in 10th grade I don't know. It's not really in the curriculum but there were, they didn't want the kids exposed to what was going on in high school.


SCOTUS archival [00:03:08] The lack in modern education of a clear connection between learning and doing is responsible for much of the student actions we have today.


Nick Capodice [00:03:17] This is from the argument in the Supreme Court case Wisconsin v. Yoder, the 1972 decision of which set the precedent that as long as you're receiving a "adequate education" you do not have to go to public school. This is what allows for private schools and home schooling in every state.


Hannah McCarthy [00:03:35] What is an adequate education?


Nick Capodice [00:03:38] Well each state decides what that word adequate means. Because when it comes to federal laws about schools it is slim pickings.


Campbell Scribner [00:03:47] So constitutionally of course the American Constitution does not mention education at all. There's no mention of schools in it.


Nick Capodice [00:03:54] This is Campbell Scribner. He's a professor at the College of Education at the University of Maryland.


Campbell Scribner [00:03:58] And therefore traditionally the sort of governing principle has been the 10th Amendment which is the amendment that basically says any rights or responsibilities not specifically mentioned in the Constitution revert to the states. And so education usually is conceived as a state responsibility.


Nick Capodice [00:04:16] Quick historical diversion here Hannah


Hannah McCarthy [00:04:18] Are you going to use the horse and carriage sound effect again.


Nick Capodice [00:04:22] I'm just one man Hannah.


Nick Capodice [00:04:27] Cast your mind back to the 20s. Andrew Jackson is elected president in 1829. And at that time in most states you didn't just have to be a white man to vote you had to be a white man who owned property. But the Jacksonians push for the "common man" to be part of our democracy. And by 1850 the landowning requirement is dropped nationally. So now there's this grave concern. Can we trust the common man to vote well if he isn't educated? And we have education advocates like Horace Mann who created the first public school system in Massachusetts that is a model for other New England states to copy. But it is radically different in different parts of the country.


Hannah McCarthy [00:05:06] So it sounds like the federal government had very little influence when it came to schools.


Nick Capodice [00:05:13] And it does today as well. Most of the decisions about what's taught and funding for schools all happens on a state and local level. Most funding for schools comes from property taxes. But there are a few ways the federal government gets involved.


Dan Cassino [00:05:26] It's like road laws. Every state can do whatever it wants with those roads and the federal government has nothing to do with that. But wait, you're saying. The federal government has lots to do with roads. They set the speed limit. They're doing all sorts of stuff with the roads. And the answer is yes. But they're not allowed to do it, they have to get the states to voluntarily agree to let the federal government come in and do that, and they do that by withholding funding. So in the 1980s if you wanted funding for your highways you had to reduce your speed limit and you had to increase your drinking age to 21. There are a couple of states that held out; do Arizona didn't increase the drinking age of 21 till later than everyone else. New Hampshire didn't either. But guess what, eventually they folded because they wanted that sweet sweet federal money. The same holds true for schools. The federal government can't actually tell the schools what to do. What it can do is tie school funding to certain programs and tell the states if you want this money you have to do X Y and Z.


Hannah McCarthy [00:06:19] What kind of programs is he talking about.


Nick Capodice [00:06:22] This is stuff like sex education and the federal government defines rules about what gets taught. And it changes under different administrations. So for example, programs that promoted abstinence only sex education got billions of dollars over the last 20 years and then starting in 08 that shifted to programs about preventing pregnancy and STIs.And this is how it works for things like federal funding for afterschool programs or even school lunch.


Dan Cassino [00:06:48] So the government says we're going to give you this money for school lunch, with the proviso that when you get this money you have to turn around and give free or reduced cost lunch to a lot of kids. Now how do we pass that through Congress? It turns out that the school lunch program is mostly a subsidy for American farmers. So when the price of crops gets too low farmers go out of business. So the Federal Government has price guarantees; the price gets too low, the federal government comes in and buys a bunch that crop. So what do they do with that crop? Well part of it gets shipped overseas. That's where food aid comes from. And the school lunch program we buy up all this extra corn and soybeans all these extra food products and we ship them off to schools so schools get all of that food for free as long as they agree to go ahead and give some of this food to kids for nothing.


Nick Capodice [00:07:33] All that said the federal government accounts for under 10 percent of funding for schools.


Hannah McCarthy [00:07:37] What about things like when kids have to go to school? You know like the start time, how many days a year,  vacation all that stuff.


Nick Capodice [00:07:45] All right so school start time is chosen by your local school board and over the last 20 years there has been a concerted movement to get schools to start later in the day since young minds need sleep. But do you know why we have summer vacatio, Hannah?


Hannah McCarthy [00:07:57] I have always been told that it's because families needed help farming in the summer.


Nick Capodice [00:08:02] I was taught the same thing. But it turns out that is one of the Great Education Myths. Spring and fall are planting and harvest time respectively and the summer vacation starts due to wealthy families and cities in the late 1800's. Schools in the city were ruthlessly hot in these days before air conditioning, and well heeled families would book it to the country for a few months, leaving the poorest students to swelter in July and August. The summer vacation was created so everyone goes to school the same amount of time. Today in the U.S. there are about 4 percent of schools that do year-round schooling.


Hannah McCarthy [00:08:40] But speaking of kids helping out with the family farm. When did we start making kids go to school?


Adam Laats [00:08:48] Well say it once and then I'll try not to keep repeating it but for school stuff, the main question is who you are and where you lived.


Nick Capodice [00:08:57] This is Adam Laats. He is professor of education at SUNY Binghamton.


Adam Laats [00:09:01] You know so if you were a sort of affluent kid in the Northeast you went to school. And from fairly early on you know and in places like Massachusetts and Connecticut it's as soon as the English people land they establish pretty formal schools like Harvard for example, and then village schools where you know literacy was pretty common in terms of you know teaching kids formally to read, and then sending a few kids on to college although the college would be very different from what we would expect.


Hannah McCarthy [00:09:39] Is this exclusively men that Adam is referencing here?


Nick Capodice [00:09:44] I incorrectly assumed it was. I thought way more men went to school than women in early America.


Adam Laats [00:09:49] By and large girls in America have always gone to more school than boys. You'd think that because of the you know the unfair treatment of girls and women that they would be also deprived of school as they've been deprived of the vote you know in other other basic rights. But with school that's never been the case. Again I'm speaking population-wise, not specifics. And they've always done way better at school by every measure. Girls have always been measured better at school than boys. And that's true across ethnic groups so Latin-x African-American White Asian and every group girls have always done better and done more formal school than boys.


Campbell Scribner [00:10:34] But for the most part education was sort of dropped in and you dropped out.


Nick Capodice [00:10:37] This is Campbell Scribner again.


Campbell Scribner [00:10:39] You know there was not a K-12 system at all. There was no public funding. There was basically no oversight. And it was sort of that people would attend as long as they wanted and they would get the skills that they wanted. And then they would go off and work. And the virtue of that I guess was that people weren't compelled to do things that they didn't want to do, right? And so the students perhaps were a little bit more motivated in that sense. And for those of us who sort of felt like high school was a huge waste of four years of our lives, kids could actually get right into the workforce, right. There was no there was no compulsory attendance.


Nick Capodice [00:11:14] Massachusetts had mandatory attendance laws in 1850. But Campbell told me that nobody enforced those until the turn of the 20th century.


Campbell Scribner [00:11:21] Child labor of course became unpopular at the end of the 19th century and people wanted to get kids out of coal mines and out of factories because they were getting maimed. But really they lacked the ability to really enforce those laws until the first decades of the 20th century.


Nick Capodice [00:11:36] But during the Great Depression kids aren't working because there are so few jobs to go around. And that is when things start to shift.


Campbell Scribner [00:11:42] It's only by the 1930s that high school attendance becomes more or less universal. Until then you know up through the 19-teens only 10 percent of kids were even in high school and only 4 percent graduated. So for most of us we don't have to go back too far in our family history to find the first high school graduate.


Adam Laats [00:12:02] But when it comes to say everybody the other huge dividing line is your race and ethnicity. For African-Americans. Not only were they, if they were enslaved, not only were they not schooled before the Civil War and Emancipation but as you're probably aware starting in the 1740s there were more and more laws banning, forbidding by threat of legal punishment formal schooling for for African-Americans, for enslaved people.


Campbell Scribner [00:12:32] It's always been fraught frankly. And I'll include Native Americans in that in that same category although there are some differences. Basically since the beginning you've had racial progressives of various stripes, originally people who would want to sort of abolish slavery and then re colonize former slaves back to Africa that was seen as the progressive position up through the 1830s and eventually just straight up abolitionists who want to end slavery and have a multiracial society. But both of these groups do see education as sort of uplifting what they see as a benighted race in African-Americans and slaves. And the hope is that you could eventually again sort of make citizens. The problem is that even the best of these reformers were awfully, I mean in my language you can hear it, they were awfully paternalistic in how they approached it right. They did assume that there was sort of racial differences, most of them. And that African-Americans were either incapable of learning or at least delayed.


Nick Capodice [00:13:36] Which Campbell pointed out, we shouldn't even have to say it, is complete nonsense. But when African-Americans are finally given access to education it doesn't grant them the same benefits as it does to whites.


Campbell Scribner [00:13:50] You find all of these testimonies where they basically write into newspapers they speak it at meetings and they say it's a sham. I've done everything I'm supposed to do and white owners still won't hire me for a job. I still get disrespected. I still get disenfranchised. And so that sort of complaint which we hear echoes of it today. Of course it was there from the very beginning. And while schools have always sort of wrestled with inclusion or exclusion even in places where African-American kids were included and the possibility of schooling, a lot of times they didn't reap the results.


Nick Capodice [00:14:28] Coming up how students and teachers constitutional rights change when they cross the schoolhouse gate.


Hannah McCarthy [00:14:35] Nick you've been saying that federal laws are few and far between when it comes to school. But aren't there some things that public school teachers cannot teach.


Nick Capodice [00:14:45] What are you talking about exactly.


Hannah McCarthy [00:14:46] I'm talking about you know like teaching religion and teaching like passages from the Bible you know because of the whole separation of church and state thing. Right?


Nick Capodice [00:14:55] Right there is lots of Supreme Court precedent about that separation in public schools. But what happens in the classrooms themselves is an entirely different matter. For example I asked Adam what are the rules when it comes to teaching creationism and evolution in American schools.


Adam Laats [00:15:09] Yeah I can do it in three words. No one knows. The Supreme Court doesn't know, your local principal doesn't know, the kids in school have no idea. My, when my daughter was in fourth grade her new best friend just transferred from Catholic school into her public school and were walking home and I was like how is school, you know how is your new school. She was like, it was OK. But at one point someone sneezed? And I said bless you? And then I was like sorry. I don't know if you can say bless you in a public school.


Adam Laats [00:15:43] So I think when it comes to what the law is ever since the Scopes Trial of 1925 and before no one knows what you can do with religion in schools.


Spencer Tracy [00:15:54] In a child's power to master the multiplication table there is more sanctity than your shouted amens and holy holies and hosannahs.


Nick Capodice [00:16:05] State of Tennessee v. John Thomas Scopes often referred to as the Scopes Monkey Trial, wonderfully depicted in the 1960 classic Inherit the Wind. It was a case about whether a Tennessee Act that forbade teaching evolution was unconstitutional. And it started this conversation nationally but precedent wasn't set until the 1960s.


Adam Laats [00:16:25] So for example, can a science teacher teach creationism? Well we know that by by Supreme Court precedent and other court precedents there's a really clear answer and that answer is a resounding no. But we also know they surveyed a ton of high school biology teachers and very few of them teach only evolution. Sixty percent of them say they sort of mix it up, 13 or 14 percent teach only creationism. So the Supreme Court is clear. But what goes on in classrooms is anything but clear when it comes to creationism.


Hannah McCarthy [00:16:59] What about students, their rights? Is it any clearer when it comes to them?


Nick Capodice [00:17:04] You and I have done several shows about First Amendment rights in schools. But we should do in the future about Fourth Amendment rights in schools, like can a teacher look in your locker or tell you to unlock your phone. The quickest summary of that is I can't go to your house Hannah and look in your closet. But a teacher can ask you to open your locker. The Supreme Court has ruled that teachers maintaining order outweighs a student's right to privacy at school if they have reasonable grounds.


Mary Beth Tinker [00:17:30] As I like to explain to students all of the rights of the Bill of Rights and in our constitution have limitations.


Hannah McCarthy [00:17:38] Who is that.


Nick Capodice [00:17:39] That is a personal hero is who that is.


Mary Beth Tinker [00:17:41] My name is Mary Beth Tinker. And when I was 13 years old I became a plaintiff in what became aU.S. Supreme Court ruling for students rights called Tinker vs. Des Moines.


Hannah McCarthy [00:17:54] The Mary Beth Tinker?


SCOTUS archival [00:17:55] Number 21, John Tinker and Mary Beth Tinker, minors, et cetera et al, petitioners vs Des Moines community School District et al.


Nick Capodice [00:18:08] If any of you were unfamiliar with the Supreme Court case Tinker v. Des Moines from 1969. It was the topic of Hannah and my first episode together, which we called IRL1. Mary Beth Tinker and her brother John and others were suspended for wearing black armbands to mourn the dead on both sides of the Vietnam War and their case went to the Supreme Court. The Tinkers won. And in the opinion of Justice Abe Fortas he wrote "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." And today Mary Beth travels the country advocating for students rights.


Mary Beth Tinker [00:18:45] Young people have unique qualities. They have incredible creativity. They have energy. They're willing to take risk. And it's no wonder that they've been in the lead of movements through history to stand up for justice and for equality and all of our democratic values. Because another great quality of young people is that they have a sense of fairness. And adults are too quick to tell kids you know that life's not fair and get used to it. But I always tell kids, don't get used to it. Life should be fair. And when you see something that's not fair you can use your first amendment rights; the right to free speech free press to assemble the right to petition the right to have your own beliefs your own religion to do something about things that you see are not fair and to take action.


Nick Capodice [00:19:37] Even a class action, right now students in Rhode Island are suing their state for not providing them an adequate civics education. Their argument is they are not being provided the opportunity to be prepared voters, jurors, participants in the political system. Hannah in your birth episode you talked about how children and students aren't recognized constitutionally. But the Tinker ruling changes that.


Mary Beth Tinker [00:19:59] One of my favorite parts of the ruling is that students are persons under our Constitution with the rights and responsibilities of persons. Abe Fortas writing for the majority also said that schools should not be enclaves of totalitarianism, and that there might be some discomfort at times when people express their First Amendment rights or use their rights. But that's a discomfort that we are willing to pay in our democracy.


Nick Capodice [00:20:25] There are some exceptions though under the First Amendment.


Mary Beth Tinker [00:20:28] Number one, substantial disruption of school. You could have your first amendment rights and free speech but you could not substantially disrupt school in the process of using those rights. And number two impinging on the rights of others would not be covered by the First Amendment rights of students. Now whatever that means and that's been debated ever since.


Nick Capodice [00:20:55] When we were walking through Merrimack Valley Middle School I talked to principal Kara Lamontagne about speech restrictions. And it started with the dress code.


Kara Lamontagne [00:21:04] Morning Jake. Don't forget to take that hood off when you're ready...


Nick Capodice [00:21:04] Are you not allowed to wear hoods? Why not?


Kara Lamontagne [00:21:19] Just to be able to see faces, to be able to make eye contact with students. Kind of help us read their body language little better. When they cover up and cover their face. You know it's hard to have any of that.


Nick Capodice [00:21:29]  And their code is pretty consistent with schools that I asked across the country. No hoods or hats, no clothing with profanity, no clothing that advocates drug or alcohol use.


Kara Lamontagne [00:21:41] And then there are some limitations around. I guess skin visibility. Just to help students be respectful of their bodies as they're trying to figure things out as middle schoolers. You know so we do have like some limitations around how shorts have to be a certain lengh, your skirts have to be a certain length,   we don't want to see undergarments and that's just not the place for that. But every place I've worked the dress code for middle school is very similar. And you know it's really just about having an appropriate non-disruptive environment. Sometimes the students don't understand that, you know, how come my skirt being too short is disruptive to the learning environment. But it can be and it's hard to explain that to them. The students do talk about, you're sexualizing us. That's the word that I hear often from from the girls.


Hannah McCarthy [00:22:32] It's interesting that these young women use the words you know you're sexualizing me I would never have thought to do that. It just speaks to how much the culture has shifted and I guess kind of empowered young women to use these terms.


Kara Lamontagne [00:22:46] And I would agree cause this is my 20th year as an administrator I was an assistant principal for a long time and did the discipline. Ninety five percent of it. And I didn't used to hear that language. It's hard. I mean because I understand that perspective and I I really respect the students that I work with. But we have we have this rule for a reason it's just a hard one for them to grasp.


Nick Capodice [00:23:08] And if you note, Kara used the word disruptive which is the exact word used in that tinker ruling.


Hannah McCarthy [00:23:14] What about other kinds of disruption. I can think of some politically charged statements on a shirt or a hat that could get students pretty riled up.


Nick Capodice [00:23:23] You said it.


News Report [00:23:23] High school student in Oregon who was suspended for wearing a pro Trump T-shirt is getting the last laugh and a lot of money.


Nick Capodice [00:23:29] In 2018 a student was suspended for refusing to remove a pro border wall T-shirt. And the courts ruled it unconstitutional and the school had to pay him twenty five thousand dollars and write him a letter of apology. This is a juggling act creating a respectful environment, without disruption, that enforces student protection, and their rights. And if there's a takeaway from all of this it's that this juggling act is very difficult.


Campbell Scribner [00:23:59] One of the classic problems with American schools is that because we live in a liberal democracy, a free society, it puts a lot of weight on education. We say that we have a free market right and people will rise or fall based on their effort and their talents. And you know we don't have strong social programs because we basically imply that if you're poor you just didn't work hard enough or you aren't smart enough or whatever for that system to hold. We have to, we have to assume that kids do have a fair shot at the beginning, right. That we have a strong educational system that that's allowing meritocracy to thrive and allowing people to rise and fall. We obviously don't have that. I mean clearly we can see that schools pass on opportunities to rich kids, to white kids, to suburban kids, whatever, that they deny to immigrants and students of color. I think we need be more realistic with the way we expect them to do.


Hannah McCarthy [00:24:50] So not only are schools juggling rights but they're also bearing the weight of expectations and the flaws in our system.


Campbell Scribner [00:24:59] If we could all agree that schools were supposed to do one thing they could do it. If we all merely wanted the kids or students to know, you know, the three branches of government and basic civics, I'm sure that schools could teach all children that. But as it is we expect them to do that and all the other subjects. And to have a winning football team and provide health care to students and hot lunch and to you know do job training and a million other things. It's not a surprise that they're not doing them all well. And even when they do start to do one of them well it's not hard to pick another one out and sort of cherry pick where they're failing. So I think before we even propose how to improve schools as a nation we need to be much more serious with how we deliberate about their purpose and what we actually think are supposed to be doing to begin with.


Nick Capodice [00:25:47] Adam Laats told me that his family and friends have banned him from talking about education at the dinner table. And I said you're unbanned here, what is the thing you want America to know about our school system.


Adam Laats [00:25:59] Oh I got it. I got it. Sorry I'm shouting. All right. So here's a question I want everyone to ask themselves and that is do you think. And say you're walking down the street you're minding your own business. A guy jumps out of an alley and says this. Do you think American public education is in a crisis right now. What would you say. So what would you say. Do you feel like American public education writ large is in a crisis?


Nick Capodice [00:26:25] Do you?


Hannah McCarthy [00:26:26] No.


Nick Capodice [00:26:26] why not?


Hannah McCarthy [00:26:29] There are more kids entering into higher education. There are more kids being educated now than have ever been educated. I think there are difficulties but there are always difficulties, there are always controversies, but more people having access to education I say that's always a good thing. Do you think that public schools are in crisis?


Nick Capodice [00:26:51] I think I do.


Hannah McCarthy [00:26:53] Why?


Nick Capodice [00:26:53] Well Adam asked me the same thing. There's a school 15 minutes away from my house where they can't play basketball in the gym because it rains asbestos on the kids in the band room below. And I brought up lots of media. I brought up the Wire season four and half Nelson.


Adam Laats [00:27:08] There's this sense that there are these not just problems but really devastating and immediate crises. We might call it a state of emergency. Other countries are doing way better on math tests without spending as much money we're told. Teachers from L.A. to Denver to West Virginia to you name it Oklahoma are on strike. And the pictures of the the resources that they're showing from 2018 and this year are just, this is why they're winning because nobody wants kids to go to schools that are that bad. So other countries seem like they're doing better the teacher pay seems like it is not just pay but the condition of public schools seems like it's in certainly crisis state. And then we have these savage inequalities as Jonathan Kozol called them where some kids go to very high schools and five miles away in any urban district you can go to a school that feels and looks like not just a nice prison but a terrible prison. So on the one hand yes there's no doubt American schools are in a crisis. Yet on the other hand you aren't. I'm not. We are correct on both counts. American schools really are in crisis. And yet American schools, public schools are fantastic. I think the kicker is it depends who you are, where you are and most importantly who your parents are. And that it's a fundamental divide in America that is running right down the middle of our public schools.


Hannah McCarthy [00:28:49] It sounds like he's saying that inequality writ large is the issue in public school. If a parent can afford to live somewhere that has a great school they'll do that. And you know I'll be honest I know that my parents partially selected our hometown because they could and because they researched the school systems and found out that it had decent schools.


Nick Capodice [00:29:11] I did the same exact thing. Our little hypothetical American in the series so far has been born and educated. But what next? When they're gainfully employed? What do they need to know before their soul is fettered to an office stool?


Hannah McCarthy [00:29:28] That's next time on Civics 101.

 Today’s episode was produced by me, Nick Capodice, with you, Hannah McCarthy.

Our staff includes Jacqui Helbert, Ben Henry, and Daniela Vidal-Allee. Erika Janik is our executive producer

Maureen McMurray totally gave a boy her earring in school detention

Music in this episode by Asura, and Asura remixed by Grim God, Blue Dot Sessions, SciFiIndustries, Scott Gratton, Yung Karts, KieloKaz, Daniel Birch, and Chris Zabrizkie

Special thanks to Ms. Dunn and Kara Lamontaigne and MVMS GO PRIDE!

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This podcast is a production of New Hampshire Public Radio.

Life Stages: Birth


We talk to Dr. Mary Kate Hattan, Dan Cassino, Susan Pearson and Susan Vivian Mangold to find out where (American) babies come from, and what that means. 




Hannah McCarthy [00:00:08] I want to start this episode at the very beginning.

[00:00:16] Of everything. I mean I want to start this episode the way everybody starts.

Mary Kate Hattan [00:00:25] I love that moment when you see a mother or a family meet their newborn for the very first time after all these months of anticipation. I continue to find it to be one of the most moving things I have ever been lucky enough to be present for.

Hannah McCarthy [00:00:43] This is Dr. Mary Kate Hatten. It's such an honor to be there. We'll never get old for me.

[00:00:51] Mary Kate is a family medicine physician who practices obstetrics at Concord Hospital in New Hampshire. She cares for pregnant mothers. She delivers babies and ideally she becomes that baby's doctor once they enter the world.

Mary Kate Hattan [00:01:04] I think most people are amazed that in the end the most important part is when you actually meet your baby. And sometimes I think those moments when you first realize Oh my goodness there's this whole baby I need to take care of. I think sometimes that can be surprising.

Hannah McCarthy [00:01:20] So Nick, you have experienced this moment twice.

[00:01:24] The birth of a new baby.

[00:01:26] Did did you feel like instinct kicked in or were you a little...

Nick Capodice [00:01:31] Absolutely terrified. I couldn't believe I couldn't believe they let me take it home. She. Couldn't believe they let me take it home in the car after he was born.

Hannah McCarthy [00:01:39] So you had no idea what to do.

Nick Capodice [00:01:42] I'd read a lot of books.

[00:01:44] I had a lot of people's advice but when it's the real thing yeah I didn't know what to do.

Hannah McCarthy [00:01:48] Well luckily even if you are one of the many parents who don't immediately know what to do with this tiny human you're responsible for there are systems in place to make sure that that baby gets off on the right foot.

[00:02:07] Mary Kate made clear that there are plenty of ways to have a baby in theU.S. but best practices dictate important steps for doctors and nurses to take.

Mary Kate Hattan [00:02:16] So after her baby is delivered were immediately making sure that the baby's breathing that the baby has a nice tone and is able to move. We're hoping that the baby cries and we check that both at the first minute. The baby's been born and again at five minutes to help give an idea of how the baby is transitioning as it's delivered.

Hannah McCarthy [00:02:39] I love this idea that this human enters the world and immediately there's this transformation going on because they're adapting to life on the outside. And meanwhile the person or people who brought this child into the world they are adapting to my role as your physician is to make sure I tell you the up to date guidelines and recommendations and to tell you.

Mary Kate Hattan [00:03:03] What we consider to be safe to practice and how to keep your babies thriving and healthy. But ultimately we're a team. And parents know what's important for their child. And I trust parents instinct. And while I can advise them medically on things I also trust that they love that child and that they're going to work with me to let them know what's working and where they need more support and for things that they may not be working for them.

Hannah McCarthy [00:03:28] So doctors like Mary Kate are going to make sure that the baby's eating trying to coach the mother through breast or bottle feedings monitoring for jaundice weight gain making sure the parents have a car seat making sure that that baby can breathe in that car seat and if this baby is born in America.

[00:03:48] While there are a lot of other gears that start to grind but before we pull back the curtain on starting your life in the United States. Care to introduce yourself my fellow American?

Nick Capodice [00:04:04] I'm Nick Capodice.

Hannah McCarthy [00:04:05] And I'm Hannah McCarthy and today kicks off the first in our six part series on bureaucracy and you.

Nick Capodice [00:04:11] Our Civics, ourselves, if you will.

Hannah McCarthy [00:04:14] It's the way that government that law the institutions interact with you mold you shape you control you and help you over the course of your lifetime from birth.

Nick Capodice [00:04:28] To death.

Hannah McCarthy [00:04:33] And today we're gone. Brass tacks absolute basics. The facts of American life before you lived very much life at all. Facts like I can't name my baby. The exclamation marks I'm.

[00:04:46] Actually naming laws vary from state to state so that's kind of a case by case basis kind of thing. And anyway the name is not nearly as important to being an American as the circumstances of your birth.

Nick Capodice [00:04:59] So where you're born and who your parents are.

Hannah McCarthy [00:05:02] Exactly. And it may sound obvious but those facts mean everything in the US.

Dan Cassino [00:05:09] So this goes back to the 14th Amendment.

Hannah McCarthy [00:05:10] Say hello to Mr. Dan casino Professor of Political Science at Farleigh Dickinson University. He is also a generous repeat guest on the show. The reconstruction period after the Civil War ended up defining citizenship because we changed the constitution in a really major way back then.

Dan Cassino [00:05:29] The Civil War movement the 13th 14th and 15th amendments.

[00:05:32] And these are they are in order to try and protect the rights of freed slaves in the southern states and make sure the southern states treat everyone equally because obviously they didn't want to. That's why we had a civil war.

Nick Capodice [00:05:42] How did the Reconstruction Amendments apply to babies being born today. Those amendments were designed to treat a very specific problem right.

Hannah McCarthy [00:05:50] They were.

[00:05:51] But in fixing that problem we changed something huge after the emancipation of thousands of enslaved people. There was this problem. These people had been counted as three fifths of a person before the Reconstruction Amendments but they were not citizens they didn't have any rights. Then Congress passes an amendment saying OK slavery is now illegal. So we've got a bunch of free Americans their citizens right.

Dan Cassino [00:06:22] So the state of Georgia could decide who's a citizen of Georgia and who's not. And of Georgia gives certain rights to citizens of Georgia we don't give to noncitizens of Georgia. Why does that matter. The fear was after the Emancipation of the slaves the state of Georgia was gon decide all those newly freed African-Americans while they might be federal citizens but they're not citizens of Georgia. So we don't have to give them any rights under the state constitution of Georgia.

[00:06:44] So the 14th Amendment is trying to get rid of that possibility.

Hannah McCarthy [00:06:46] The 14th Amendment shows up to say look everybody who is born in the United States is a citizen of both the United States generally and the state in which they reside.

Nick Capodice [00:06:58] So before that what made you a citizen.

Hannah McCarthy [00:07:01] That was actually up to the states which is why there was that risk that proslavery states would deny citizenship to newly freed people. But after the 14th Amendment.

[00:07:11] If you're born here you're a citizen.

Nick Capodice [00:07:16] So this is a birthright citizenship right. Is that what we call it.

Hannah McCarthy [00:07:19] Exactly. Citizenship is your birthright if you're born on American soil or to American parents for the most part. There are some exceptions having to do with how long your American parent resided in theU.S. or was working for theU.S. abroad. Also Nick Here's a wacky one a person is a citizen. If they are of quote unknown parentage found in theU.S. under the age of five. And if nobody can prove they were born elsewhere before they reach the age of 21.

Nick Capodice [00:07:49] How often does that happen. How many people achieve citizenship that way. It sounds almost Dickensian but so it sounds like your very best bet is being born onU.S. soil.

[00:07:59] Yes but that is an aspect of birthright citizenship that people debate heavily because there are a lot of people who feel like noncitizens use birth onU.S. soil as a way to game the system.

Dan Cassino [00:08:15] Well because it means that if you are not a citizen and you show up the United States and you have a baby that baby is a citizen and there's nothing anyone can do about that as long as they're born in the United States. And this has led to a growth of what's called birth tourism in the United States. We're well here foreigners from around the world come the United States and Saffren birthing suites hospitals in major cities and give birth there in order to give their child a chance at Americans is when that child becomes an adult.

Nick Capodice [00:08:41] But to be clear it isn't actually gaming the system it's the law it's totally legal.

[00:08:46] And right now in the U.S. babies born here ge tU.S. citizenship.

Hannah McCarthy [00:08:49] Yes except for the babies of foreign diplomats there's this clause in the 14th Amendment that says you're a citizen if you're born in theU.S. and quote subject to the jurisdiction thereof. But foreign diplomats are not subject toU.S. courts or authorities they have diplomatic immunity.

[00:09:08] All right. So not subject to the jurisdiction thereof equals not a citizen but if we're looking at a non diplomat's baby born on American soil we are looking at an American baby. Even though people argue about the correct like being swaddled in an American flag.

Hannah McCarthy [00:09:24] Or like have you ever played the Sims?

Nick Capodice [00:09:27] A little bit.

Hannah McCarthy [00:09:28] You know that green diamond that floats over their heads?

Nick Capodice [00:09:31] What's that called?

Hannah McCarthy [00:09:32] It's called the plumb bob.

Nick Capodice [00:09:33] An American plumb bob.

Hannah McCarthy [00:09:34] An American plumb bob floating over your head except your plumb bob is invisible because you know yeah you've got citizenship but you can't actually enjoy it until someone makes it official.

Nick Capodice [00:09:50] So you can be a U.S. citizen but not actually get any of the benefits of being a U.S. citizen.

Hannah McCarthy [00:09:54] Right. Because how can I know that you're really a citizen.

[00:09:58] I mean I got to have it in writing.

Nick Capodice [00:10:02] When you're born the first thing you have to do is register the birth with the government to let the government know that someone has been born here and generate a birth certificate from that and that person is a legal document.

Nick Capodice [00:10:12] It's kind of like if a tree falls in a forest does anybody hear it.

Hannah McCarthy [00:10:16] Right. In this case if no one writes it down authorizes it. The question is did it really happen.

Susan Pearson [00:10:23] So if you have no birth certificate and you are not white you are much more vulnerable.

Hannah McCarthy [00:10:32] This is Susan Pearson. She's a history professor at Northwestern University and she's working on a book about birth registration in the U.S.

Susan Pearson [00:10:40] Right. You are vulnerable. If something goes wrong if you're picked up by the police to deportation. Although we have near universal birth registration in theU.S. the more on the margins you are the less likely you are to have your birth registered.

Nick Capodice [00:10:59] So she's talking about American citizens getting deported.

[00:11:02] Does that happen.

Hannah McCarthy [00:11:03] It's actually estimated that thousands of Americans are detained or deported every year in theU.S. And your role honorable enough just having a certain last name or looking a certain way but if on top of all that your American birth was never registered. You are in real trouble. How do you prove that you're a citizen. There is this pretty well known story of a young woman in Texas whose birth was unregistered and who had very few official records of her life.

Alicia Faith Cunningham [00:11:32] My name is Alicia Faith Cunnington and I'm aU.S. citizen by birth. However I was born at home and my parents neglected to file a birth certificate for a birth record of any kind. They also never got me Social Security number.

Hannah McCarthy [00:11:46] Now in Alicia's case immigration is not exactly breathing down her neck. She is a white woman. However she can't get a passport she can't get a driver's license.

Susan Pearson [00:11:57] Her home state of Texas as a result of her case ended up passing a law which basically made it a criminal offense for parents not to register their children's birth.

Nick Capodice [00:12:12] Alright for some people there's this threat of deportation.

[00:12:14] And they're not able to get a passport driver's license or Social Security card.

Hannah McCarthy [00:12:18] Also think about all of the other inconveniences that could crop up a birth certificate doesn't just prove that you're a citizen. It proves your age and think about all of the age restrictions in the U.S. At 16 you can go to adult prison at 18. You can vote at 21. You can drink at 35 you can run for president without your birth certificate. Legally speaking you do not have an age. But if you go back even 100 years in the U.S. the whole age thing is not as big of a deal.

Susan Pearson [00:12:51] A lot of people in the 19th century and even into the 20th century actually didn't know exactly how old they were and didn't actually know exactly what their birthdays were or what their children's birthdays were.

Hannah McCarthy [00:13:05] Or if you did bother to make note of your child's birth it was probably in the family Bible or maybe your church took note of the day when your baby was baptized. But it wasn't exactly an official document.

Nick Capodice [00:13:17] What about the president thing you have to be 35 years old that's in the original Constitution. And aren't there age requirements for senators and reps and that sort of stuff.

Hannah McCarthy [00:13:25] There are. But then again when the framers wrote the Constitution they weren't expecting anyone other than wealthy white literate landed gentry to end up in office. And at the time if anyone was having their birth recorded it was those upper class people.

Nick Capodice [00:13:41] So possessing the knowledge of your age is like defacto privilege of its own back in the day. Like the framers probably knew their own birthdays right.

Hannah McCarthy [00:13:49] And then the cobbler let's say who made James Madison shoes he might be able to estimate his age based on family lore and rough dates. It's like the further away you get from privilege and power the further you get from that specific birthday.

Susan Pearson [00:14:05] Frederick Douglass the famous abolitionist and escaped slave begins his autobiography by saying that he doesn't know when he was born and that slave owners kept this information from their slaves and that this was for him evidence of the way that African-Americans under slavery were treated like chattel like animals right and not like human beings. But in reality a lot of plantation owners actually did keep records of the births and deaths of their slaves.

Hannah McCarthy [00:14:48] So even though not really knowing your age was not uncommon. There is something special about age even in the early United States withholding birthdays even when they knew exactly when an enslaved person was born was a way for slave owners to further strip that enslaved person of identity and power and access because age does have this elevated status in our Constitution.

Susan Pearson [00:15:19] Voting. Serving in elective office serving on a jury. Those kinds of things that we understand as being sort of primary ways that we would distinguish a democracy from another kind of form of government.

[00:15:35] Those are actually all bounded by age. Even before there's birth registration and therefore a really easy way for people to show how old they are. We already have rules about what you can and can't do as a citizen based on your age right.

[00:15:54] I'm thinking about today and we often use age as this marker for what you can't do but you can't get married or drive a car or work most jobs. If you're under a certain age when did that all start.

[00:16:05] Child labor laws start getting passed again this starts in New England like birth registration does in the middle of the 19th century. As soon as you start having really. Factory labor. And you know the factories of the mid 19th century or not the factories of the 20th century but people start to get a little worried about you know is it good for their bodies to be in these more dangerous working environments.

Hannah McCarthy [00:16:31] So we started to look at little kids working in mills and being horribly injured and we started to think you know what maybe we shouldn't let those little kids work in those mills. But change came slowly.

Susan Pearson [00:16:44] I mean most of the earliest child labor laws had no provisions for proof of age in them at all he would just say something like You know you can't work in the cotton mill unless you're over the age of 14.

[00:16:57] And so people would just show up and whoever's doing the hiring at the mill would say well how old are you. Zahm for two you'd say whatever the law said right. I mean it might be true or it might not.

[00:17:10] And they say Okay!

Nick Capodice [00:17:13] That makes no sense. What have you ever particularly tall or strong 11 year old and mom and dad are quite sure how old they are so they might as well say 14 so the good can get to work.

Hannah McCarthy [00:17:22] Exactly that's the problem. That age requirement is all well and good but it doesn't mean anything if you don't actually know how old you are. Or if people can fudge the numbers which they do and that's around the time the National Child Labor Committee starts ramping things up.

Susan Pearson [00:17:39] And they think that a lot of children are working under age in factories right.

[00:17:44] And so they press states to pass laws that are little more stringent that have some kind of enforcement mechanism that have some kind of system where instead of just walking into the factories hiring office and saying OK I'm here and the supervisor being late great. You know here's a broom go sweep the floor. They want to say that the child has to present.

[00:18:07] Some kind of proof of their age. And in most places this is an affidavit of age which is supplied by going to a local notary public.

Hannah McCarthy [00:18:20] Close to a birth certificate but no cigar.

[00:18:23] It ends up being basically the same situation as before mom and dad can just say little Janie is 14.

Susan Pearson [00:18:30] But then there was this big investigation in 1895 in New York City done by the state legislature. There was a widespread feeling among again Child Labor opponents that this function was no better than parents walking into employment offices with their kids right because notaries are getting paid for performing the service. They don't care. They're not law enforcement officers. They want to get their 25 cents and their view of their job is I don't decide the truth I just certify that a person said this to me. Right. So there's this big exposé of the notary system and child labor opponents really begin to press for what they call documentary proof of age.

Nick Capodice [00:19:24] I love a good exposé. They get things done.

Hannah McCarthy [00:19:27] Yeah this one is no exception. Child Labor opponents took a long hard look at the system and they decided that they knew what to do. There's only one way to ensure an accurate age for a kid a baby must be registered when they are born.

[00:19:42] And in a narrow window, too.

Susan Pearson [00:19:43] Could be three days it could be three months but the point is that there's no incentive for anyone to lie at the time that a birth is registered right. You're not thinking well if you know 12 years from now I'm going to want to say that Jaynie is 14 and not 12. Right. The other thing about birth registration laws is that in most places they make the duty to report the birth. The job of the birth attendant.

Hannah McCarthy [00:20:19] The system isn't perfect right. For example there were a lot of immigrants coming to theU.S. at this time and they were out of luck when it came to proving their age and the race listed on a birth certificate was a weapon in the hands of those who sought to disenfranchise people of color in theU.S. but ultimately we did get to nearly 100 percent of births being registered in this country.

Nick Capodice [00:20:42] Nearly but that nearly kind of trips me up because at this point in American history that birth certificate is the golden ticket. Right. I mean that not only does it help keep you safe from deportation. It also helps get you a license passport register for school get married get a Social Security card.

Hannah McCarthy [00:20:59] Yes. Also by the way the social security card that is another big one in terms ofI.D. in theU.S. And so there's this box that you can check off when you get your birth certificate and the Social Security Administration will send you one. But if you missed that boat you end up having to prove your citizenship in another way to get a delayed social sometimes or religious or hospital record is enough. But that can be a real catch 22.

Nick Capodice [00:21:23] OK so do we have a right to birth certificate. Are my rights being violated if my parents don't register me.

Susan Pearson [00:21:28] I mean it's it's so basic to be able to establish who you are. Right. And so for parents to deny that to children it comes to be seen as almost as criminal and in fact theU.N. has a charter of children's rights which was passed in 1938.

Nick Capodice [00:21:46] Yeah but that's the U.N. I mean it's not our Constitution.

Hannah McCarthy [00:21:52] Well no this is actually a state's thing. So all states have some kind of language in their statutes that requires a physician midwife parent or some other person present at a birth to register the birth of that child usually within five to ten days in some cases. If a doctor or a midwife fails to do this they can have their license suspended until they register that baby.

[00:22:15] But there are still people who don't register their child's birth for other reasons.

Susan Pearson [00:22:21] They're part of the sovereign citizen movement right. And they say are people who see a kind of very libertarian. You write that you see registering your birth as a form of submission to the state that is illegitimate.

[00:22:36] And that is giving up a piece of your autonomy in a piece of your sovereignty.

Hannah McCarthy [00:22:41] It's not just disenfranchised or marginalized or poor or rural populations that may be susceptible to not receiving a birth certificate. There are people out there who say look you can't make me submit to the government and you can't make me force my child to do that either. But some of these kids do grow up wanting a birth certificate for various reasons they might want to get a legal job or travel for instance. But it's much harder to prove where and when you were born when you're 18 years old.

Nick Capodice [00:23:16] It's amazing to me that this piece of paper this hallmark of boring bureaucracy is like the key to the whole city. But what do you get for that.

[00:23:26] If the birth certificate is the key to protections and privileges what are those protections privileges.

Hannah McCarthy [00:23:32] Like right out the gate.

[00:23:34] What do you get the minute you come wailing into this world?

Nick Capodice [00:23:38] Yeah.

Hannah McCarthy [00:23:38] OK. Day one. You're a brand new person here in theU.S. What does that make you in the eyes of the Constitution?

Susan Mangold [00:23:45] Children have rights as citizens of the United States. And then they have some rights even when they're not citizens of the United States based on case law or statutory law rather than constitutional law.

Hannah McCarthy [00:24:00] This is Sue Mangold chief executive officer of the Juvenile Law Center. It's a nonprofit that advocates for the rights of children in theU.S.

Susan Mangold [00:24:08] So usually when you try to understand the constitutional rights of children you begin with a series of Supreme Court decisions. Meyer Prince Pierce Yoder.

Hannah McCarthy [00:24:23] The interesting thing about these cases is that they weren't actually brought on behalf of the children. They're about what and how a teacher can teach her how a parent or guardian raises a child. Because when it comes to what you get as this new young person in America a lot of that has to do with the adults around you. What are their rights when it comes to you.

Nick Capodice [00:24:46] They're pretty limited aren't they?

Hannah McCarthy [00:24:48] Yes and No.

[00:24:49] You solve this principle of a parent raising a child as they see fit.

Susan Mangold [00:24:55] This balance between parental rights children's rights and state's obligations. And so you know there's a whole line of cases around states being able to order medical care and it's more or less limited to when you know the medical care is widely approved and is lifesaving. But there's you know cases on the margins that don't require quite as high a standard. And in terms of education parents can educate children at home they can send them to private schools they can send them to public school. But there are quite extensive state regulations even of home schooling. And so the parents can make choices but they are limited again.

Hannah McCarthy [00:25:42] Sue describes this triangle of parents rights children's rights and states rights and children's rights have a lot to do with not being abused and not being neglected and also being educated. And the states are the ones who enforce those rights.

Nick Capodice [00:25:58] What if somebody under the age of 18 decides her parent is just not for them. Can they divorce their parents?

Hannah McCarthy [00:26:06] They can. That would be emancipation.

Susan Mangold [00:26:08] Children seek emancipation all the time. They seek access under a range of laws that give them access to health care and reproductive health care mental health care and addiction services without their parents consent. Mindful that their parents would not consent but the laws for all kinds of public health reasons give the child their own right to seek the services even if they're well below the age of 18. And again that depends on the state's laws.

Nick Capodice [00:26:57] It seems like the story of children's rights in the U.S. At its simplest is about our understanding children as hokey as that might sound.

[00:27:08] Like we went from looking at them as many adults to thinking of childhood as this separate stage of life thinking. Maybe that means they shouldn't operate heavy machinery in a mill or get married. Finally realizing they need extra defence against abuse and neglect. It's taken hundreds of years. Which is funny because people think you're just going to magically know what to do and you have a baby of your own. But as a nation. We still aren't really sure how to raise a kid.

Hannah McCarthy [00:27:39] No it's been slow progress. But being born in America.

[00:27:44] I think increasingly means that you're being looked out for. And I think there's also. An increasing attempt to listen to young people. Whether that's literally or by looking at their brains and development.

[00:28:00] And as with all shifts in our democracy when you give a group a voice the system starts to respond.

Nick Capodice [00:28:07] Yes and kids do have a voice. All right. That's actually one basic right. We didn't get to in this absurd.

Hannah McCarthy [00:28:14] Yeah I was kind of thinking that's better suited to an episode about schools.

Nick Capodice [00:28:19] I see where you're going here.

Hannah McCarthy [00:28:20] That's next time on civics 101.

[00:28:34] This was just the beginning. There's a whole lot of life to live here. It's Civics 101 and we're making our way through those life stages. Next stop school.

Nick Capodice [00:28:43] And there's a whole lot left to learn too. You can check out more information about being born in America and all of our upcoming episodes at Civics 101 podcast dot org.

Hannah McCarthy [00:28:52] This episode was produced by me and McCarthy with Nick Kapit each day our staff includes Jackie Helbert Ben Henry and Daniela Vidal Ali. Erika Janica is our executive producer.

Nick Capodice [00:29:02] Maureen McMurry really considers herself more of a citizen of the world.

Hannah McCarthy [00:29:05] Music in this episode by Shaolin Dub. The 126ers, TextMe Records, HiDi, Blue Dot Sessions, Frederic Chopin, and Johannes Brahms.

Nick Capodice [00:29:14] Civics 101 is a production of New Hampshire Public Radio.

Hannah McCarthy [00:29:19] Mom and Dad can just say little Janie is 14.

Nick Capodice [00:29:24] Janie! Mary, Janie! Don't you remember me? You know what that is right?

Hannah McCarthy [00:29:30] Yeah, that's a good Jimmy Stewart.

Nick Capodice [00:29:30] Now, I - I - I - I wanna make a boys camp. I wish I had a million dollars.

[00:29:39] Hot dog!




Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Founding Documents: The Bill of Rights



Each Amendment could be (and has been) its own episode. Except maybe the Third Amendment. So if you don't know them by heart, take two minutes to watch the video below.


Want to play Bill of Rights: Survivor? Chuck Taft has shared his lesson plan here.

We have spent more time on the Library of Congress’s primary source page than anywhere else during this series, click here to see the original proposed amendments, Jefferson’s ratification tally, and a lovely illustration of a tub to a whale.

Episode Segments:





Founding Documents: Bill of Rights




Chuck Taft [00:00:04] Hi this is Chuck Taft at University School of Milwaukee. I'm unable to get to the phone right now so if you would please leave your name number. Brief message and most importantly your favorite person in American history. I'll get back to you as soon as I can. Thank you.


Hannah McCarthy: [00:00:18] Who is this Chuck Taft?


Nick Capodice: [00:00:19] He's a high school history teacher. And I called him up because he plays this game with his class called Bill of Rights survivor.


Hannah McCarthy: [00:00:28] How on earth do you play that.


Chuck Taft [00:00:33] So Bill of Rights survivor is obviously based on the fantastic reality TV show Survivor of which I'm a big fan. The idea is that we're going to use amendments two through ten and then students are going to try to figure out which amendment should be the sole survivor a Bill of Rights island.


Hannah McCarthy: [00:00:50] Does he give the kids torches?


Chuck Taft [00:00:53] I do actually. You know the little LED candles, and then I have a Bill of Rights mug. I also hide immunity idols in the room. Like two little bits of paper.


Nick Capodice: [00:01:04] The students are assigned amendments and they present speeches as to why theirs is the most important. Everybody votes the losing amendment is called up to the Bill of Rights mug.


Chuck Taft [00:01:13] And I say you know that the tribe has spoken


Nick Capodice: [00:01:19] It's time for you to go. Seventh Amendment.


Hannah McCarthy: [00:01:21] This is so excellent. I imagine the students will walk away with this profound love and respect for the Bill of Rights.


Nick Capodice: [00:01:29] They do. But there's another teacher that I adore, Woody Holton from University of South Carolina.


Woody Holton: [00:01:35] I want you to call me Woody if you don't mind but my legal name is Abner. He's in the Bible and he killed his father. So who gives that name to their son. I play an obnoxious game with my students when I ask them "OK tell me specific things, don't talk in generalities about liberty and freedom, be specific. What specific clauses of the Constitution do you like." And they'll say freedom of speech or they'll say everybody can vote or they'll say gun rights or no unlawful search and seizure and then I get to say, you know the things you just named as being great about the Constitution? None of this is in the Constitution. None of them is in the document that the Framers adopted on September 17th 1787. None of them are reasons that they were there, or they would have put those things in it.


Nick Capodice: [00:02:32] Today on Civics 101 in our founding documents series, we are finally getting to you. And we're talking about the Bill of Rights.


Nick Capodice: [00:02:40] I'm Nick Capodice


Hannah McCarthy: [00:02:41] And I'm Hannah McCarthy.


Nick Capodice: [00:02:42] And before we get into how it was created or how it affects our lives let's be clear about what it is. The Bill of Rights is the first 10 amendments to the U.S. Constitution written by James Madison, ratified December 15th 1791. And you know them all by heart right.


Hannah McCarthy: [00:03:02] Of course.


Nick Capodice: [00:03:02] If you don't, it's real easy to fix that. I looked at a bunch of mnemonic devices for how to memorize the first ten amendments and my favorite by far involves waving your hands around. Which is not good for radio, but Hannah and I made a video of it. Go to our website and check it out. Let's begin in that sweltering room in Philadelphia. David O. Stewart, author of The Summer of 1787 told me about the great debates over the Bill of Rights at the Constitutional Convention.


David O. Stewart: [00:03:32] The debate about the Bill of Rights actually never happened. It wasn't discussed through most of the summer. It was not something that they thought was terribly important. A few other states had constitutional provisions that declared rights. Virginia did. And it was widely thought to be sort of eyewash. It was something you did that made everybody feel better, but it didn't really make much difference. And they didn't worry that the national government would create risks to people's liberties.


Nick Capodice: [00:04:05] However the idea of a Bill of Rights was brought up at the convention. But truly at the 11th hour.


David O. Stewart: [00:04:12] In the last week of the convention there were two delegates George Mason of Virginia and Elbridge Gerry of Massachusetts who were known to be unhappy with the Constitution, with lots of features of the powers of the Senate the powers over trade, and suddenly they stand up. And working with each other, obviously they had cooked this up ahead of time, they move for the inclusion of a bill of rights. One of them actually says we could put this together in an afternoon. Which is a little ambitious. And most of the other delegates saw this for what it was which was it was a stall.


Nick Capodice: [00:04:51] They had been in this hot sealed up chamber with boards over the windows for months. And they did not let this diversion of a Bill of Rights scuttle the whole thing. And this feeling that it wasn't really needed is echoed by James Madison and Alexander Hamilton. Hamilton's Federalist 84 says Bills of Rights "are not only unnecessary in the proposed constitution but they would be even dangerous."


Hannah McCarthy: [00:05:14] You said Madison wrote the bill of rights. But he didn't want a bill of rights?


Nick Capodice: [00:05:19] Not in the slightest. He did not think it was essential to a new nation and even referred to the act of writing it as a "nauseous project."


David Bobb: [00:05:29] The fundamental point that James Madison made is that the Constitution itself was really the structural guarantee of our rights.


Nick Capodice: [00:05:40] This is David Bobb. He's the president of the Bill of Rights Institute and the author of Humility an Unlikely Biography of America's Greatest Virtue.


David Bobb: [00:05:48] Alexander Hamilton wrote the Constitution itself is a bill of rights. In other words all of those kind of things that can be considered not quite as exciting: the separation of powers, federalism, these sort of guarantee the structural part of the Constitution, that's the mainstay of our liberty. Of course Madison was very aware that the people's rights need to be protected but that was mainly the job for the states.


Nick Capodice: [00:06:20] Remember Hanah all these states had their own constitutions many of which had their own bills of rights.


Hannah McCarthy: [00:06:25] Right. So they're arguing that all of the states have them, so why does the federal government need one too.


David Bobb: [00:06:32] The other reason that Madison was not for the Bill of Rights was a kind of practical one. And that is, if you write those rights down and separate them out and say boy this is this is really important. This is this is the statement. This is the place you go to find all of your rights here. What if one of them is not on that?What if what if a right that you do possess is not listed there? Does that mean that it's not a right?


Hannah McCarthy: [00:07:00] Those are some pretty strong arguments.


Nick Capodice: [00:07:02] They are. But in the end they don't work. The constitution had been sent to the states where they had ratification conventions to decide if they're going to go along with it. Delaware ratifies first with a unanimous vote in Congress on December 7th. Then Pennsylvania, New Jersey, and Georgia ratify right after. But then we have a nailbiting lull during the year 1788.


Linda Monk: [00:07:25] These ratification conventions were big deals. And during that process of repeated theme is why is there no Bill of Rights.


Nick Capodice: [00:07:33] That's Linda Monk, the Constitution Lady and author of The Bill of Rights: a User's Guide. The people were calling for one.And this terrified the pro ratification federalists.


Woody Holton: [00:07:44] Madison in particular saw that as a plot to derail the constitution because people are saying hey you guys got to go back to Philadelphia in the summer of 1788 and write in some some civil liberties and maybe we'll ratify your constitution and the people who wanted the constitution were afraid that would lead to more controversy and the Constitution would never be ratified. And so they fought tooth and nail against a bill of rights. Not because they were opposed to civil liberties but because they were afraid that would gum up the works and prevent the original seven articles of the constitution from being adopted. But starting in Massachusetts in February 1788 and then in several other states including my original home state of Virginia and the state of New Hampshire all said OK we're going to go ahead and ratify the constitution but only with the understanding that if you don't add that, you'll add a bill of rights and if you don't add a bill of rights we can always call a second convention.


Hannah McCarthy: [00:08:51] Wait so they say give us a bill of rights or we'll call another convention to write a whole new constitution.


Nick Capodice: [00:08:58] Yeah and most of them did not want to do that. It was so hard to get the first one written.


Woody Holton: [00:09:02] The first Congress came in. Has a federalist majority. The majority of them don't want a bill of rights. But James Madison convinced his fellow federalists hey you know what we better give them a bill of rights before they give us one.


Linda Monk: [00:09:19] These states some of them will say OK we're going to trust you to put in a Bill of Rights and we'll go ahead and ratify it now. A state like North Carolina said no we don't trust you we're not going to ratify this until you've added the Bill of Rights. And so when Madison's running for Congress in his State of Virginia he takes the stand that if he is elected he will move to propose a bill of rights in the new Congress and that's what he does in 1789.


Nick Capodice: [00:09:50] Nauseous project or not. Madison is true to his campaign promise. Cause more than anything he just wants that constitution to be ratified. And if the people are crying for a bill of rights not only will he make one, but he'll ask every state what they think should be in it and he sits down and he makes his first list.


David Bobb: [00:10:11] The list that he came up with was more than 200.


Hannah McCarthy: [00:10:13] 200?


Nick Capodice: [00:10:14] 200!


David Bobb: [00:10:15] 200 total yeah. Because there are a lot of states that have pulled together lists that were long. And they had some that were more detailed than others. And Madison again with that kind of mind that wanted to lend some order to these kind of things, no way that you can deal with 200. You can hardly deal with 20.


Nick Capodice: [00:10:32] And then there's the question of where to put these rights. Madison initially wants them to not be a separate thing. He wants to write them into the Constitution.


Hannah McCarthy: [00:10:41] He wants to just change this document that these men sweated over for four months.


Nick Capodice: [00:10:46] Yeah, and Congress says heck no, we have a constitution already. But Roger Sherman of Connecticut had an idea.


Linda Monk: [00:10:54] And in fact it's an enemy of Madison's who proposes that maybe we should put all the amendments at the end. During the process that they propose they are referred to as amendments, not a bill of rights. Madison says there are amendments like a Bill of Rights because at the end of the process they all came together, after they were ratified, it was 12 amendments submitted, ten got ratified. At that time they became known colloquially as the Bill of Rights.


Hannah McCarthy: [00:11:27] Wasn't that the official term for it?


Linda Monk: [00:11:30] Well there is some debate about that Polly Meyer the late and very esteemed scholar raised some questions about that. Well was it actually called a Bill of Rights. I I I take a little exception of that, sometimes you don't have to give a name it's, give a document its formal name for it still to be that. I mean it still operates as what we think of and call a bill of rights.


Nick Capodice: [00:11:58] So we start with 200 and when the smoke clears we end up with 10 nice round number. The first are great civil freedoms; speech, religion, press, petition, assembly. The second and third are about militia and conditions under war, and the 4th to the 7th are about the right to the criminally accused.


Hannah McCarthy: [00:12:17] So a full half of the first ten amendments are about the rights of the accused.


Nick Capodice: [00:12:22] That's right.


Linda Monk: [00:12:23] You think why did the framers put that much emphasis on the rights of the criminally accused. And when you think about it you know why, it's because they were criminally accused. They were very aware of when you have the power of the whole government going against an individual who's accused of a crime.


Nick Capodice: [00:12:42] The ninth answer is Madison's fears of missing rights that just because a right isn't listed here that doesn't mean you don't have it. And then the tenth, that any power not given to the federal government is given back to the people or the States.


Nick Capodice: [00:12:55] And on December 15th 1791, Virginia becomes the 10th state to ratify the bill of rights adding it to our recently ratified constitution. And there it is, right?


Hannah McCarthy: [00:13:07] That's it? What is it like 15 minutes?


Nick Capodice: [00:13:10] Well. I think it's time we bring up the tub.


Hannah McCarthy: [00:13:17] What tub??


Woody Holton: [00:13:17] A tub to the whale.


Nick Capodice: [00:13:21] This is Woody Holton again and he's quoting a whaling term used by an anti federalist to describe the bill of rights.


Woody Holton: [00:13:29] Somtimes you know you're going after one of these big toothed sperm whales and the whale turns on the ship and it can sink the ship just like in Moby Dick. They had these big washtubs big wooden washtubs and they were thrown overboard. In hopes that the whale would attack the tub instead. So it's it's sort of a diversionary tactic. And it's amazing how many of the people who had opposed the Constitution saw the Bill of Rights as written as a tub to the whale. They wanted structural reforms. The largest number of them thought that the Constitution made the federal government too strong. And structural reforms to the Constitution were the last thing that James Madison wanted. He liked weakening the states. He was a strong national government guy and so he didn't want to shift power back to the states and he was also an anti democratic guy and he didn't want to shift power back to the people either. So he didn't want to give the critics of the Constitution the big stuff that they wanted. So instead he gave them some things that he saw as innocuous.


Nick Capodice: [00:14:45] Nobody was challenging gun rights at the time. Nobody thought there was an imminent threat to freedom of speech or religion.


Woody Holton: [00:14:52] They threw in all these things that to them seemed almost trivial. And that's the tub to the whale. And let's get people to adopt that bill of rights so we don't have to adopt a bigger bill of rights that returns power to the states and to the people. And certainly when I ask my students what they, what they like about the Constitution, they name the things in the washtub rather than the ship of state.


Hannah McCarthy: [00:15:18] OK. But regardless of whether the framers thought those rights were trivial, they were ratified. They have become a part of our Constitution and they helped define us.


Nick Capodice: [00:15:30] I agree they do help define us. They are, much like the Declaration of Independence, big ideas that you can hang your hat on. You can sink your teeth into. But there's an ongoing discussion about how they actually affect our lives.


Alvin Tillery: [00:15:47] First of all there's this debate right. There there's the Elkins and McKittrick view in history that's the Bill of Rights is a net gain for citizens in the United States because they've created a bundle of federal rights where the federal government can't trample on you.


Nick Capodice: [00:16:06] This is Alvin Tillery. He's the Director for the Center of the Study of Diversity and Democracy at Northwestern.


Alvin Tillery: [00:16:11] And so that's a net gain for citizenship even though your states can still trample on you your state can have a state religion like in Maryland. Your states can restrict your property. So but, but. To have the federal rights is a net positive in 1787. Right. Then there's the Charles Beard view which is you know all these guys are grifters. You know, the urbanites like you know are grifters and the planters are grifters. And what they've done is make sure that Shays' Rebellion never happens again. And so the Bill of Rights is a nice sort of thing to hang on your wall and make you feel like you're an American citizen. But it doesn't really affect your daily life because you know your state can still do really horrible things to abridge your freedom.


Nick Capodice: [00:16:59] And this is like the crux of the whole thing, Hannah. The Bill of Rights initially did not apply to the states. And what this meant for you as an American was that while the federal Congress couldn't pass a law abridging your freedom of speech freedom of religion your state could. And the Supreme Court even upholds this in a case of 1833 called Barron v. Baltimore. It's not until nineteen twenty five that the Supreme Court rules that via the 14th Amendment, the Equal Protection Clause, the Bill of Rights does apply to the states. But it's not all at once. It's called selective incorporation. Piecemeal, one at a time, these amendments are incorporated into state laws.


Linda Monk: [00:17:43] With any of these rights the way they were developed, say freedom of speech. The Supreme Court didn't even get involved with freedom of speech cases really until the labor movement brought a lot of those cases to the courts. And that's when finally the court would hold that, yes, these Bills of Rights actually apply to state laws too. You look at the civil rights movement, same thing. When, when the Supreme Court rules that desegregation must come to an end, did that happen in 1954? No. There was massive resistance from the states. It took movements of citizens, great movements of citizens to finally have some of those protections apply.


Hannah McCarthy: [00:18:28] This is kind of crazy to me. So are you saying that the Bill of Rights, which was written to kind of answer all of these concerns about the Constitution, you know denying states and individuals their rights, didn't actually apply to the states, it only applied to the federal government until 1925?


Nick Capodice: [00:18:52] Do you know the no excessive fines or bail from the Eighth Amendment?


Hannah McCarthy: [00:18:55] Yeah.


Nick Capodice: [00:18:56] We are recording these words on February 20th 2019 and that was incorporated this morning.


Hannah McCarthy: [00:19:04] So was the Bill of Rights as it was written in the 1700s kind of meaningless?


Nick Capodice: [00:19:10] I was scared to even say that thought out loud. But it is a fact that the Bill of Rights just didn't have much judicial impact for 150 years. The historian Gordon Wood said that "after ratification most Americans promptly forgot about the first ten amendments to the Constitution." In 20th century America, legal immigrants were deported for their politics. People in police custody gave forced confessions. Racial segregation was legal. So I asked Alvin about where he stood on this. Is the Bill of Rights a net gain or is it a bunch of grifters throwing out a washtub?


Alvin Tillery: [00:19:47] I think it is great. I think it was,, you know I think I'm closer to Elkins and McKittrick, and I think it was great when it, when it when it happened. When it was, when it was written into the documents. I think the ideals were always good and valuable but it took the culture time to catch up. And it took thousands and thousands of people putting their bodies and souls on the line to convince the power structure, which is very conservative always, that they should make good on these, the text of these charter documents, right? But the framers knew that they were being hypocritical when they were writing these documents. They absolutely knew it. And that's why the framers didn't allow Jefferson to say you know you forced us to have slavery. They knew that that wasn't true. Right? But they made a Herronvolk, master race democracy for themselves and it took an evolution in this country to undo it. And now it's going to take an evolution to preserve it, because we do have powerful forces that would like to return us to a master race democracy. And that's that's unfortunate but true.


Linda Monk: [00:21:04] My favorite quote, it's one I discovered in law school. It's the one I still stand by. It's by the great Judge Learned Hand. He says, "I think we place too many hopes in laws and courts and constitutions. These are false hopes. Believe me these are false hopes. Liberty lies in the hearts of men and women. And when it dies there, no law, no court, no constitution, can save it." So ultimately, the Bill of Rights came from us, came from We the People, and it depends on We the People for its protection.


Nick Capodice: [00:21:48] I feel like we've been here a lot of times, Hannah.


Hannah McCarthy: [00:21:50] Yeah.


Nick Capodice: [00:21:51] Pretty much every episode. These documents initially didn't apply to everyone. And they may have flaws. But through sacrifice and through the actions of citizens they become something greater.


Hannah McCarthy: [00:22:05] It's like this idea of "no man being above the law" or the words "We the People" or "All men are created equal." The true power of these words is not given by the government. It has to be fought for by the people. We have to rise up to wield it.


[00:22:40] Today's episode was produced by me, Nick Capodice with Hannah McCarthy.


[00:22:43] Our staff includes Jacqui Helbert Daniela Vidal Alee and Ben Henry. Erika Janik is our producer.


[00:22:49] Maureen McMurray is in charge of putting a hole in the washtub.


[00:22:52] Music in this episode by Music in this episode by:

Blue Dot Sessions

Ikimashoo Oi


Scott Gratton


Yung Karts


Super special thanks to the very first teacher to talk to me for this series and tell me about the bill of rights, Nate Bowling. He's the host of the Nerd Farmer, a delightful podcast where nerdy civic stuff that we love mingles with politics and shade. Last but not least, Chuck Taft, creator of Bill of Rights Survivor is willing to share that with the world. If you go to our Web site Where you can see his lesson plan and PowerPoint. Civics 101 is a production of NHPR, New Hampshire Public Radio.


Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Founding Documents: The Federalist and Anti-Federalist Papers


Our guides through the minds of the Federalists and Anti-Federalists are Claire Griffin and Cheryl Cook-Kallio.

Episode Clips

More Resources

If you want to just devour every moment of the Federalist vs. Anti-Federalist debate, head on over to for the whole collection. You can track the battle and learn what James Madison, Alexander Hamilton and John Jay may have told you if you challenged them to explain the Constitution.

Fun Fact! Thomas Jefferson, the very man who authored the Declaration of Independence, was serving as U.S. minister during the Constitutional Convention so he wasn’t around to offer his thoughts in Philadelphia. But he still managed to play a major role in designing the new government by way of letters to his fellow framers. And, even though he would come to call the Federalist Papers the “best commentary on the principles of government which was ever written,” he leaned more states rights, fear-of-tyranny than his peers. He also lobbied hard for a Bill of Rights. You can get a gander at some of his writing from the time through the Library of Congress.



This script was created using a combination of machine and human transcription. There may be discrepancies or typos.

CPB by Adia Samba-Quee: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. Hey.

Hannah McCarthy: [00:00:04] Nick did you ever have to write one of those what I did over my summer vacation essays in grade school.

Nick Capodice: [00:00:10] All the time.

[00:00:12] In fact my finest summer vacation was playing Sam Gamgee in an eight hour production Lord of the Rings.

Hannah McCarthy: [00:00:18] Ok I wasn't expecting that. That is that's really that's ambitious. But still your thing is not as ambitious as designing a new system of government.

Nick Capodice: [00:00:29] Yeah nowhere near as ambitious as that.

Hannah McCarthy: [00:00:31] No right. Because that's totally insane you can't pull that off in four months. And yet that is how we got our current system of government a bunch of guys in the stifling heat in Philadelphia in this airless room with the windows nailed shut in the middle of the summer wrote our Constitution in four months and then they stepped outside and showed the world there. You know what I did on my Summer Vacation essay.

Nick Capodice: [00:00:58] By essay you mean the Constitution.

Hannah McCarthy: [00:01:00] I do.

[00:01:05] The delegates to the convention publish their constitution and newspapers throughout the 13 states and they were probably hoping for a pretty positive response but that is not what they got a mere ten days after the constitution is signed. I mean the ink is barely dry on this thing. Some guy named Cato writes this op ed basically saying I know that it's really exciting that this new constitution was signed by people like George Washington. But just be careful about it. It might not be all it's cracked up to be what someone's.

Nick Capodice: [00:01:38] Already constitution bashin' what does this Cato guy know who is Cato anyways?

[00:01:44] Has even read the Constitution.

Hannah McCarthy: [00:01:45] Well he has. But before we get into that introductions I am Hannah McCarthy.

Nick Capodice: [00:01:52] And I'm Nick Capodice.

Hannah McCarthy: [00:01:52] And this is Civics 101 and today we are diving into one of the most high stakes eloquent intense public battles in the history of the United States.

[00:02:03] The battle that pitted the pro Constitution federalists against the anti constitution anti federalists. And it sounds like the whole thing started with this guy named Cato. It did indeed the op ed that launched a thousand ships as far as who Cato is and what he actually knows. We're not totally sure about that. It's most likely George Clinton the governor of New York but it could also be this New York politician John Williams whoever it is.

[00:02:32] He almost certainly did not attend the Constitutional Convention.

Nick Capodice: [00:02:37] Right so Cato is a pseudonym.

Hannah McCarthy: [00:02:38] Correct. It's referring to a politician in ancient Rome who killed himself because he didn't want to live in Julius Caesar's new government. Cato was all about defending the Roman Republic.

Nick Capodice: [00:02:51] That is a little on the nose. Cato saying he'd rather die than live under this new constitution.

Hannah McCarthy: [00:02:56] Bingo. At the time most educated men would have picked up on the symbolism of this. The name Cato had actually been used to critique the British government in the past.

Nick Capodice: [00:03:06] Okay so the framers were a bunch of classics nerds. I can appreciate that. I think it's kind of endearing but why New York. This essay gets published in New York. It's written by a New York politician. New York, what's your damage?

Hannah McCarthy: [00:03:19] Well New York is not super happy with the new Constitution of the three delegates they send to the Constitutional Convention to walk out. Only Alexander Hamilton stayed behind but he's pretty thrilled with the Constitution. A lot of new York congressmen do not feel the same way. They do not want to see the states consolidated under this one powerful central government and they really don't believe that the Constitution can guarantee equal and permanent liberty like its proponents claim.

Nick Capodice: [00:03:53] So who's Cato writing the op ed for exactly.

[00:03:57] The whole Cato Roman Republic metaphor seems like pretty inside baseball like your average farmer probably doesn't know what's being referenced here.

Hannah McCarthy: [00:04:04] You know the average farmer is not who Cato is speaking to. Right now the Constitution is only a piece of paper with a bunch of ideas. It doesn't carry any real power and Cato wants to stop that power from happening altogether. All right.

Nick Capodice: [00:04:19] So he's talking to the guys in charge.

Hannah McCarthy: [00:04:21] Yeah politicians delegates.

Claire Griffin: [00:04:23] White literate men. Of course those are the ones who were at the Constitutional Convention. Those were the ones who were going to be the ratifying conventions.

Hannah McCarthy: [00:04:32] This is Claire Griffin. She's a former government and history teacher and a consultant in civic education. Like she said the Cato letter is addressed to the people who will be voting on whether or not to ratify the constitution. 9 out of 13 states have to ratify in order for the Constitution to go into effect and the Cato letter is the first of many many op eds criticizing the Constitution.

Claire Griffin: [00:04:55] Well they were a series of about 150 articles written by quite literally dozens of opponents to the Constitution. These were published not just in New York but in New York Pennsylvania Connecticut Maryland again kind of the same time frame September of 1787 through December of 1788 and their purpose was to dissuade the delegates to the ratifying conventions from supporting the constitution.

Nick Capodice: [00:05:27] Also it wasn't just Cato.

Hannah McCarthy: [00:05:28] No they had a Brutus a Centinel.

[00:05:31] They had an old Whig then that's Whig with an "h" -- collectively these writers were known as the anti federalists and these were really smart men with really well informed ideas.

Nick Capodice: [00:05:44] All right so being an anti federalist doesn't make you unreasonable or opposed to a government of any kind necessarily.

Hannah McCarthy: [00:05:52] Not at all.

Claire Griffin: [00:05:52] Before we go on I should almost apologize for calling them anti federalist because nobody wants to be called anti anything and that name anti specialist actually came from the federalist to describe their opponents. And because history is often written by the victors the name anti federalists has stopped and will use that in our conversation. They would have called themselves pro Republicans Republican with a small R.

Nick Capodice: [00:06:25] What does she mean by that small are Republicans.

Hannah McCarthy: [00:06:28] Oh what she means is as opposed to the big R or Republican Party small r Republicans are just in favor of a republic which most basically is a government where power rests with the people. They're anti federalists because they're not thrilled with strict federalism which is basically a centralized federal government that works with smaller state and local governments. The anti federalists would prefer a government closer to the Articles of Confederation with its really weak central government and plenty of state power.

Nick Capodice: [00:07:02] But the guys who are writing what we call the anti federalist papers they wouldn't have actually called themselves into federalist right.

Hannah McCarthy: [00:07:09] No no way. Their opponents gave them that label which is actually a pretty strong PR move. Calling a group anti anything it just makes them seem negative and in this case the other group of guys calls themselves the federalists the anti federalists probably would have called them the anti little are Republicans.

Nick Capodice: [00:07:30] So when do the federalists actually enter the fight. So far we've just got this op ed by Cato.

Hannah McCarthy: [00:07:35] Yeah it's actually quite a while before the anti federalists make their move. The little r Republicans have published 21 statements by the time we hear from the pro Constitution guys which I found pretty surprising because when I learned about this time period in school I learned about the federalists the federalists were this big deal these guys who explained the Constitution and I'm almost certain that I didn't read a single anti federalist paper back then. And yet they were the ones who kicked everything off. We might not have the Federalist Papers as we know them today without the anti federalists.

Nick Capodice: [00:08:17] I'm guessing the pro Constitution framers get to a point where they're like all right enough. We can't let this go anymore. These guys are killing us with bad press.

Hannah McCarthy: [00:08:26] Exactly. And they're not just in New York anymore. Cato inspired critics in other states as well. But the soon to be capital F federalists aren't just sitting there twiddling their thumbs while all of this is going on. They're making plans and then October 27th it happens. The first federalist essay hits the presses of a new york paper.

Claire Griffin: [00:08:51] Number one the very first one written by Alexander Hamilton in which he's laying out the case for a new constitution something to replace the Articles of Confederation.

Hannah McCarthy: [00:09:04] Federalist 1 otherwise known as Publius one.

Nick Capodice: [00:09:09] Publius?

Hannah McCarthy: [00:09:10] Yes it's a silly sounding name Pubilius was a guy in ancient Rome who helped to overthrow the monarchy and create the Republic of the people.

Nick Capodice: [00:09:19] That is a clever move by Hamilton Right. Because Cato kicked things off in the name that's in defense of the Republic and then Hamilton comes back at him like No way man. You got this all wrong. I'm the guy who establishes a representative government. I'm the guy that gives power to the people. You must be the other guy.

Claire Griffin: [00:09:37] What I love about Federalist number one is that Hamilton refers to the fact that the American people now have a chance to make decisions to create a government based on reflection and choice not accident and force.

Hannah McCarthy: [00:09:57] Meanwhile an anti federalist calling himself John DeWitt publishes in Massachusetts. He reads the times and what he sees is this permanent document that will never change. He basically says don't let them fool you. That amendment clause is useless. Congress is never going to achieve that three fourths majority they're talking about because that would require too many people to agree. He calls it an absolute impossibility.

Nick Capodice: [00:10:26] It's interesting because we know that the Constitution does end up getting amended. But back then there must have been so much anxiety about this new system of government. How could they possibly know it was going to work out the anti federalists are just saying hey we can't take this gigantic radical leap into a brand new system especially one that throws us into a stronger government. We just escaped a stronger government.

Hannah McCarthy: [00:10:50] Right. And the federalists were saying look we have got to beef up the federal government because the way that it is now is a disaster. We got it wrong we went too far toward a government of the people. It is too divided. So the first anti federalist drops in late September Pew one arrives about a month later and it says OK so we've heard some concerns.

Cheryl Cook-Kallio: [00:11:17] We are going to write a series of essays that are going to answer all your questions about the new constitution.

Hannah McCarthy: [00:11:25] This is Cheryl Cook. Kallio she's a former teacher and former council member in Pleasanton, California.

Cheryl Cook-Kallio: [00:11:31] And then he and John Jay and Madison methodically went through every single thing that was concerning and tried to answer those questions in 85 essays 85.

Nick Capodice: [00:11:45] How are we going to get through eighty five essays in one episode.

Hannah McCarthy: [00:11:48] Actually it's probably more than 85 because when you lump in the anti federalists and a few other things written at the time you're really looking at closer two hundred and forty plus articles. But don't despair. The point of this episode is to get a sense of what this fight actually looked like. What were the arguments for and against this nation changing document and how did the federalists approach to these op eds help their game.

Cheryl Cook-Kallio: [00:12:15] They were put in a collection and they started to disseminate that collection throughout the colonies. Again in contrast to the anti federalists that were very much individual essays that were now written in defense of their position.

Nick Capodice: [00:12:33] So the federalists are working together and guys like Cato and Brutus and the old Whig are just coming at it from their own individual perspectives.

Hannah McCarthy: [00:12:41] The anti federalists were certainly sharing their opinions with one another but it wasn't a unified front. The way that it was with Alexander Hamilton and James Madison and John Jay Jay by the way wasn't at the Constitutional Convention but he was a powerful New Yorker and Secretary of Foreign Affairs under the Articles of Confederation. So while the anti federalists comprised over a dozen different authors and pseudonyms those three federalists published only as publics. There were certainly other pro Constitution people writing op eds. But it was Publius who shone the brightest.

Nick Capodice: [00:13:17] Do you think that's part of the reason why the federalist ended up being successful you know in my opinion yes and I base this on.

Cheryl Cook-Kallio: [00:13:24] On a couple of things. One is that Hamilton and Madison in particular were planners. They had written out their justifications for particular things even before they would get into the constitutional convention. They would have the ammunition they needed to support something. Also I think Madison James Madison in particular is a pragmatist. He knew that there needed to be a different type of government. He knew that under the Articles of Confederation the government was way too weak to survive and he was prepared to do what he needed to do to get a different structure in place.

Hannah McCarthy: [00:14:06] Here is another agreed upon favorite that sheds some real light.

[00:14:09] This one is by James Madison and actually a lot of the favorites are by James Madison.

Cheryl Cook-Kallio: [00:14:15] I do like Federalist 10. I think that Madison was right when he said that factions are bad but they're inevitable and that the only way to mitigate these factions is to balance them out.

Hannah McCarthy: [00:14:30] Madison published Federalist 10 on November 22nd. This is after anti federalists like Cato expressed concerns about this centralized Congress with so many different special interests. Basically he was saying how is the government going to get anything done with this system. It will be a house divided. It'll be useless just a bunch of factions. Madison has to prove that the new system of government is actually the best way to deal with factions. But what did Madison actually mean by factions like political parties. Well back in the day theU.S. didn't really have the party system the way that it looks today. So it'd be less party factions and more like opposed special interest groups and Maddison's biggest concern was over the special interest groups who would fight against what was best for everybody. A good example back then would have been slave owners versus abolitionists. Here's Claire again.

Claire Griffin: [00:15:25] He's writing about the advantages of a large Republican republic with a small r where individuals choose their elected representatives. Political philosophers before Manison were pretty certain that the republic would only work in a small geographically small area with a fairly homogeneous population and Madison says just the opposite he said. The public works best when the territory is large and expand it and when there are so many different interests and crude he used the word faction that all the different interest groups offset each other. No minority is persecuted against no majority ever has complete sway.

Hannah McCarthy: [00:16:15] Madison also focuses on the economy in Federalist 10 and at this point in history theU.S. economy is really not doing so hot. He describes an equal property distribution with some people having everything and some people having nothing. And this he says can create factions to the wealthy versus the poor. His large republic where you've got a Congress representing the many scattered views of the common people will work to balance this out.

Nick Capodice: [00:16:42] It seems like Madison and the other federalists are going to have an answer for every concern the anti federalist put their way. Yeah he pretty much do.

Hannah McCarthy: [00:16:52] And a big part of defending the Constitution is explaining the Constitution. Lequan anti federalist Brutus argues that the Supreme Court would be quote exalted above all other power in the government and subject to no control. And Hamilton is like OK let me break it down for you.

Claire Griffin: [00:17:12] Number seventy eight. Alexander Hamilton again is writing about the importance of the independent judiciary and I'm not sure whether or not he really believed it but he said that the three branches the judiciary would be the weakest he said. They have neither the force of the sword nor the pen. The idea being they have no way to enforce what their judgment is. And he also emphasized that they were called upon to exercise judgment about laws but not will. As in they are not the law makers. So when you hear discussions about activist judges or judicial overreach or even questions about judicial review today Hamilton are raising those questions back in 1788.

Hannah McCarthy: [00:18:05] And then there's the president the anti federalists looked at Article 2 and they were not happy with what they saw.

Nick Capodice: [00:18:11] I would imagine that anti federalists are looking at the role of the president in thinking this looks mighty familiar.

Hannah McCarthy: [00:18:18] Yep but the federalists believe that there is a very good reason for this executive power.

Claire Griffin: [00:18:24] Number 70 written by Alexander Hamilton. This is where he writes about the importance of energy in the executive branch. The right of the Constitution. We're looking at the immediate past history when we were governed under the Articles of Confederation. One of the major weaknesses of the government under the articles there was no chief executive. And so Hamilton whom some have called a monarchist which I think is unfair. Hamilton was arguing for a strong executive individual and a strong executive branch.

Hannah McCarthy: [00:19:03] And the executive branch that's laid out in the Constitution doesn't say all that much about putting a check on this new executive.

[00:19:10] The anti federalists feared that between veto power and pardon power you'd end up with a president who could bend the nation to his will.

Claire Griffin: [00:19:24] Well if you look you know throughout American history we've had a series of very strong executive. And usually it's in times of crisis. But it is a strong executive. The best for our nation and the epicenter of us would say you know no that's not such a good idea. You know the federalists were arguing generally in favor of a large government or at least a government larger than that which had existed prior and certainly big government can do great and wonderful things but the anti felt but more say not so fast. Maybe we don't want a huge government bureaucracy so it's kind of interesting you could say that the Federalist more success. You know they got their desired outcome.

[00:20:16] The Constitution was ratified and the Federalist Papers have become integral to our understanding of our founding. However if you look at the anti federalists given some of the questions and concerns that that they raised then they're still with us today. We may decide that after all they ended up having the last laugh.

Nick Capodice: [00:20:40] That is a really interesting point. The federalists won. So that's the history that counts right. And we look to the Federalist Papers to better understand the Constitution. And that makes them an amazing resource. But it does seem like the anti federalists are raising valid points.

Hannah McCarthy: [00:20:59] Absolutely. And remember the anti federalists are posing a real threat. First of all these essays are public. So if you can read and you don't like what you're reading about this proposed constitution you might just give your representative an earful down at the tavern or out on the street or after church. And then there's the fact that some of these anti federalists are going to be voting on whether or not to adopt the constitution. So they have a very real say in the future of the country. And on top of all that the Constitution only needs the support of nine states to be ratified. Right. But that means that as many as four states could choose not to ratify and potentially even sever ties with the new nation. So no more union union over and the country ends up being the very failure that so many framers were anxious to prevent.

Nick Capodice: [00:21:53] So the federalists do have to listen to the anti federalists.

[00:21:56] To an extent and not just to calm their fears or do damage control with anti fed op eds.

Hannah McCarthy: [00:22:02] Right the Constitution is up for a vote in ratifying conventions across the country and some states like Delaware Pennsylvania and New Jersey. They're quick to ratify. They do it in December of 1787 but the OP eds don't stop the Federalists and anti federalists are still battling it out into the spring and then into the summer of 1788 because there are a lot of very loud dissenters arguing that the Constitution is illegal under the Articles of Confederation that it's a document written by wealthy upper class people to benefit their own interests that it deprives states of their individual rights in favor of this big central government.

Nick Capodice: [00:22:42] Yeah how do the federalists reconcile that issue. It sounds like anti federalists are all about states having sovereignty and looking out for their own and making their own choices. So how can the federalists make this big government remotely appealing to them.

Cheryl Cook-Kallio: [00:22:56] Well Madison does dig into that by explaining how in broad terms this government is going to work. Here's Cheryl again.

[00:23:03] When he's trying to explain it one of the things he says and this is a quote from federalist 39 in its foundation it is federal not national in the sources from which the ordinary powers of government are drawn. It is partly federal and partly national in the operation of these powers. It is national not federal in the extent of them again it is federal not national. And finally in the authoritative mode of introducing amendments it is neither wholly federal or wholly national. Now that's enough to make anybody's eyes cross two or three times. It sounds like double speak.

Nick Capodice: [00:23:45] Yeah I really don't understand why Madison is talking about is he canceling out his own argument. And what does he mean by federal versus national aren't that the same thing when you deconstruct the paragraph.

Cheryl Cook-Kallio: [00:23:56] It really does illustrate the nature of federalism. Sometimes the states are in charge sometimes the national governments in charge and sometimes the federal government which is the combination of the two is in charge and these things change depending on the circumstance. He would then go on to say that this is really a check this idea that you have state power that doesn't belong the federal government an example of this is police powers. That's a state power. There's a number of things like that and sometimes the lines are blurred and sometimes are not.

Nick Capodice: [00:24:33] All right. So in other words Madison is saying look this strong federal government is not designed to deprive states of all power. Sometimes the states get to decide and sometimes the federal government gets to decide. Sometimes they decide together.

Hannah McCarthy: [00:24:50] Right. He's saying this document is not as extreme as these anti federalists are making it out to be.

[00:24:56] Don't worry you'll retain some states rights.

[00:25:03] Of course that doesn't address the little problem of the federal government being at the top of the food chain and the anti federalists are like we're afraid of tyranny. Remember this constitution doesn't say anything about protecting the little guy. You can't just kind of vaguely say don't worry individual citizens you'll be fine. The anti federalists want this in writing.

[00:25:27] OK. I've been waiting for this. This is the big ole glaring omission in the Constitution of 1787 and we're talking about the Bill of Rights. Where's that Bill of Rights.

Hannah McCarthy: [00:25:38] That is exactly what the Anti-federalists are saying. Where is the Bill of Rights? It might seem like a no brainer for us but at the time the federalists were like No no no we don't need to add anything to the Constitution. It's overkill it's redundant.

Claire Griffin: [00:25:53] The last Federalist Paper which is probably significant for what it argues against not for what it argues in favor of is number 84 in which Hamilton argues against a bill with a right.

[00:26:08] Now today for us in the 21st century a Bill of Rights is sacrosanct. It's right up there with the declaration and the Constitution. It is one of the founding document. It's hard for us to understand how could we not have a Bill of Rights.

[00:26:23] But if you look at Hamilton's arguments they could be pretty persuasive.

Hannah McCarthy: [00:26:28] Hamilton's main argument was that there's protection kind of built into the Constitution already. The federal government only has the powers that are laid out in the Constitution. And this idea of making a list of what the government is not allowed to do to individuals or to states. Well Hamilton says if you start listing them at all you've got to list all of them. And by the way you're bound to forget something and if it doesn't end up on the list well the government might have the power to impose it.

Nick Capodice: [00:26:57] All right. So I know you've been saying the anti federalists lost the war but.

[00:27:02] They did win this battle.

Hannah McCarthy: [00:27:04] Big time at the end of the Federalist anti federalist saga. We are going to have a constitution. But first the anti federalists need a little something. Actually they need 10 little somethings 10 somethings that will change the course of history and come to mean everything to the American people. In a last ditch effort to save the Union. Our civil liberties will be born. But how does it happen. How in Sam Hill does it happen, Nick?

Nick Capodice: [00:27:35] Find out next time on civics 101.

Hannah McCarthy: [00:27:43] Thanks for joining us for another installment of our foundational document series here on civics 101. This episode was produced by me. Hannah McCarthy with Nick Capodice.

Nick Capodice: [00:27:52] Our staff includes Jackie Helbert, Daniela Vidal Allee and Ben Henry. Erica Janik is our executive producer.

Hannah McCarthy: [00:27:58] Maureen McMurry is that other glaring omission from the U.S. Constitution.

Nick Capodice: [00:28:02] We could only cover so many federalist and anti federalist thoughts in this episode but we've got links to plenty more on our Web site civics 101 podcast.

[00:28:11] Dot org.

Hannah McCarthy: [00:28:11] Music in this episode by Quincas Moreira,

[00:28:14] Blue dot sessions and Jahzzar.

Nick Capodice: [00:28:16] Civics 101 is a production of NHPR. New Hampshire Public Radio.




Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Founding Documents: The Constitution

After just six years under the Articles of Confederation, a committee of anxious delegates agreed to meet in Philadelphia to amend the government. The country was in an economic crisis — citizens couldn’t pay their debts, the government couldn’t really collect taxes, and rebellions were cropping up in states across the nation. The existing government had the potential to drive the country to ruin. So fifty-five men gathered to determine the shape of the new United States.

The document that emerged after that summer of debate was littered with masterful planning, strange ideas and unsavory concessions. The delegates decided they'd be pleased if this new government lasted fifty years. It has been our blueprint for over two centuries now. This is the story of how our Constitution came to be. 

Leading us through the sweltering summer of 1787 are Linda Monk, David O. Stewart, Woody Holton and Alvin Tillery.

Episode Clips

More Resources

The Constitution has a complicated story, so don’t stop here! There are some great resources out there that can shed more light on the Constitutional Convention and its ramifications.

Day-By-Day Summary of the Convention

James Madison took copious notes during the Constitutional Convention, and understanding the timeline of this event can help to shed light on the decisions and compromises made. This day-by-day summary can take you there without having to hold Madison’s hand the whole time.

But let’s say you, just like Linda Monk, would love to hold James Madison’s hand the whole time! You can find his complete notes below.

James Madison’s Notes from the Convention

There are lots of artistic interpretations of the Constitutional Convention. One of the more famous paintings is this beaut by Howard Chandler Christy.


The same folks who brought us that summary above ( put together a great interactive version. You can click through the delegates and get to know them a little better.

Unpacking the impact of the Three-Fifths Compromise on the United States takes time. The reverberations were felt throughout history, and therefore can still be felt today. You can find more information on this and the vast scope of African American history at Black Past.

The Three-Fifths Compromise



HM: George Washington wakes up early, per usual, on November 5th, 1786. He goes to his study and reads over his correspondence. Around 7, the bell rings for breakfast, and he joins his guests, Charles Pinckney of South Carolina among them, at the table. They probably have cold ham and mutton -- though Washington’s favorite is mush cakes with butter and honey, and three cups of tea, no cream. When the guests hit the road, Washington heads into his study, and sits down to write some letters. In fact, he spends the rest of the day writing. He’s got a lot on his mind. He’s really worried about the state of the fledgling nation. At this point in history, the country is still under the Articles of Confederation. And things aren’t going so well.

NC: Yeah, those Articles... the U.S. didn’t exactly thrive under the Articles.

HM: Washington has just received word from James Madison who is in session with the Virginia Congress that the assembly is considering amending the Articles of Confederation.

NC: So why is Washington so worried? Things are looking up!

HM: Because it’s very nearly too late. The Articles of Confederation have only been in place for five years and they Do. Not. Work.Things are crumbling. Washington has just heard that small rebellions popping up all over the new nation. People are furious. Post-war debt is crushing the country. One of my favorite parts of this letter to Madison is when Washington talks about how melancholy it makes him to think that they might be “fulfilling the prediction of their transatlantic foe. Leave them to themselves and their government will soon dissolve.”

NC: Ouch. So Britain said this would happen, huh? Like, they told us we couldn’t make it work on our own, and look! Barely any time has passed and they’re basically right.

HM: Yeah. Washington calls it “a triumph for our enemies, for the advocates of despotism.” John Adams actually wrote to John Jay around this time and told him that people in England liked to joke that America would come crawling back, begging to be let back in. And then Britain would let them dangle for awhile and then tell them to buzz off.

NC: Oof. That is so cold! And it’s also the ultimate breakup fantasy, right? Like, juuuust wait. They’ll be sorry. They’re going to try to get me back some day, and I’m gonna say no chance.

HM: Except this breakup took seven years and tens of thousands of people died. Washington basically says, look, Madison, I know I don’t have to tell you this, but this weak government is going to be our downfall. So all I’m going to say is, I sure hope these thirteen states can consider the common good here.

NC: Ok, so Washington sends this letter off and then what? What does Madison do?

HM: Madison’s way ahead of things. Before he even receives Washington’s letter, he’s already got a bill before the Virginia assembly that will appoint delegates for a convention the following summer. A convention to amend the Articles of Confederation.


HM: The bill passes. And other states follow suit.


HM: The time? May 14th, 1787. The place? Philadelphia. What show is this? Civics 101. And I’m Hannah McCarthy.

NC: And I’m Nick Capodice.

HM: And today, we’re taking you to the City of Brotherly Love, to a stuffy chamber in the old Pennsylvania State House.

NC: The very same room where, a decade earlier, a group of men came together to declare themselves independent of their motherland.

HM: This time around they came to reel some of that independence in. This is the story of how our constitution and how it came to be.

HM: Well, first things first, in this episode, we’re going to be talking about the thing that was written in 1787. The document designed to correct a nation that was falling off the rails. So first, there’s a preamble. That’s the part that most people know. And a lot of us learn it through this School House Rock song.

[Quick SHR WTP tease]

NC: It’s some pretty grand language. “Secure the blessings of liberty to ourselves and our posterity.”

HM: Yeah, it starts out lofty. But the Constitution itself is a bit more dry than that.

Linda Monk [00:11:59] OK the Constitution we think of as basically a structure of government.

HM: This is Linda Monk. Otherwise known as “the Constitution Lady.”

LM [cont.]: It's got seven articles and four parchment pages that if you want to look at them article 1 which is Congress -- most people get that wrong and they think it's the president, but no it's Congress -- Congress gets two out of four pages and words in the Constitution count.

HM: Okay? So, very basically, the constitution is a collection of seven articles that explain what the government is - what’s in it? - and how it works. Article One, the Legislative Branch, seems to get the most attention.

LM [00:12:30] So the more words there are a lot of times the more powers there are the framers intended Congress to be the dominant branch of government. And that's where most of the power lie.

HM: Next longest is Article Two, the Executive Branch.

LM [cont.] The president was the piece of the current government that the framers had the hardest time agreeing on. They had lots of different proposals. Finally we came down to a president the method of selection in terms of the electoral college is still one that we debate and are concerned about.

HM: Then comes Article Three, the Judicial Branch.

LM [cont.]The third branch is the judiciary which has the fewest words. But we've come to think of it today as having broader powers.

HM: Article Four covers states and citizenship

LM [cont.] The full faith and credit that states must recognize for instance like the marriages in other states.

HM: Full faith and credit basically means that any state has to respect the acts, records and judicial proceedings of another state. Also deals with interstate felons, new states joining the union, and the Federal government protecting states. Then we’ve got five, the “this thing can be amended” clause.

LM [cont.] The fifth article is what I think is the secret sauce that's the amendment process. We said didn't work a constitution that's not too easy to change because that would make it more like every everyday law versus a constitution that's too hard to change. And then you have revolution instead of amendment.

HM: Six.

LM [cont.] The Sixth Amendment is a supremacy clause that says that the Constitution itself is the supreme law of the land including over other state constitutions.

HM: And last, but certainly not least, lucky seven.

LM [cont.] The Seventh Amendment is where they sign and say what what the process is are going to be from that.

HM: When when Linda says “the process,” she’s talking ratification. Nine states are going to have to vote yes on this document in order to make it stick. So there you go. Seven articles, all wrapped up in a neat little package.


Except it wasn’t neat! It was difficult and contentious and touch-and-go and very, very hot in there. So do you want to know how it happened?

NC: Yes! How did it happen?

HM: Well, Linda gives a lot of the credit to James Madison. Linda really, really loves James Madison.

LM [00:07:27] Oh, who can't love James Madison? He's my hunka burning constitutionalism.

HM: According to Linda, Madison is different from the other politicians. Compared to the other framers, he’s petite, and he’s nervous, but he’s strategic and thoughtful. A effective underdog.

LM [00:10:00] to have that combination of a great philosopher but also a good practical politician in one person. And for someone to say that government is the greatest of all reflections on human nature he just has a wisdom that really speaks to me and I will stand by it. He's my boyfriend and he's the person is my favorite founder.

HM: And even if you don’t carry a flame for him, Madison was undeniably instrumental to the Convention of 1787.

David Stewart [00:03:01]: I think you have to point to James Madison -- I have tended to quarrel with calling him the father of the Constitution, but I do think he's the father of the convention in many respects[...]

HM: This is David O. Stewart, author of The Summer of 1787. He’s going to be our main guide to the Constitutional Convention. David says that Madison was successful in part because of his connections. One connection in particular.

DS [cont.]: To be honest though nothing in that decade of the 70s in America happened of significance politically unless Washington was in it. He was the guy. And Madison very intelligently insisted that Washington's name be listed as one of Virginia's delegates right from the start that gave an incredibly strong blessing to the process.

NC: Celebrity power. Like having Obama speak at your charity event or something.

HM: Only bigger. Washington was a celebrity of almost ridiculous proportions.

DS [00:07:18]: I think he could have you know his stature was immense. I mean he was at a stage where he couldn't enter a city without having the church bells ring and fireworks be scheduled in an illumination of everybody's house happen that night. I mean he just was you know the star. We we've never experienced you know stardom at the level that he did.

NC: Okay, so Madison is rallying people to come to this convention, and he knows that Washington will make for some great bait?

DS [00:04:17]: Washington was very uncertain whether he really wanted to go but he did ultimately decide to. There was a lot at stake. And if it didn't go well it would be he would be blamed for it and he knew that. And so it was not an easy decision. He had tried to retire from public life after the revolution and I think he meant to.

NC: Is it weird to say I feel a little bad for George Washington?

HM: No, I think that makes sense. The man put his time in, and he wants to sit back and enjoy the rest of his life in peace. But the country he had fought so hard for was struggling to stay afloat. So he allows himself to be drawn back in -- with the understanding that he would be presiding officer -- actually referred to as the President -- of the convention. That means he’s not going to orate, he’s not going to debate. He’s going to oversee, and he’ll vote.

NC: Alright, so Madison’s got Washington, he’s got his delegates, and then everyone meets up in Philadelphia to figure something out?

HM: It wasn’t quite that easy. Almost everybody was late. The convention was set to start on the 14th of May, and they didn’t reach a quorum - 7 states - until the 25th. Rhode Island just never showed. New Hampshire didn’t have the money to send their delegates until mid-July. There’s actually this funny moment in Madison’s notes where someone proposes a resolution to send for the delegates from New Hampshire and the motion is defeated.

[music beat]

DS [00:08:16] Virginians were the first out of town delegation arrived. The Pennsylvania delegation was mostly men from Philadelphia so they lived there. And those two groups of men got to know each other pretty well. Many of them knew each other beforehand but they did talk and strategize together. And then the Virginians developed a process where in the mornings. And this happened for over a week. They would convene at a boarding house where Madison was staying and they would and they put together a blueprint.

HM: So, remember, the plan is to get a bunch of delegates together and make changes to the Articles of Confederation so that they, well, work. So that the country doesn’t fall apart. But Madison has a different idea. The delegation spends a few days voting on rules for the convention, including total secrecy so that the framers can debate freely and change their minds if necessary, and then Madison makes his move. Before any debate or suggestion takes place, he has fellow Virginian Edmund Randolph submit a list of fifteen resolutions. It’s called the Virginia Plan.

DS [00:08:16] What the Virginia Plan did basically was throw out the articles and start on a blank piece of paper. And that was audacious and it was also very smart because people didn't wouldn't bring to the debate all the old arguments they'd been having for six years under the articles and they could start essentially with first principles of how a government should be designed and should operate.

NC: Woah, that’s bold. I mean, the Articles of Confederation are no dream come true, but imagine showing up thinking you were going to make some small adjustments and this faction of states tells you, nope, surprise! We’re here to talk about a brand new form of government.

DS [00:09:00] There were delegations like Pennsylvania, and I think the South Carolinians, who knew exactly what the Virginians were doing and supported it. There were a number of delegations. What classically has come down to being described as the small state delegations who were surprised and in no small measure are appalled the Delaware delegation ended up threatening to leave. They had instructions from their state legislature that did not include starting over with a new charter of government.

HM: So there are delegates who are understandably upset with this proposition. And they certainly could bail.. They could walk right out that door and spare themselves months of debate in an airless room.

NC: So why don’t they? If enough delegates leave, they’d lose their quorum and then it’d be over. They can try again next year.

HM: Well, two delegates from New York do eventually walk out, Robert Yates and John Lansing. But I think back to that letter George Washington wrote to Madison. Things are bad in the country right now. The government needs to change, or this grand experiment is going to fail. And how are you going to walk away from the chance to contribute to the structure of a new nation?

Woody Holton [00:20:04] If I wanted to choose a three word phrase that sums up the motives of the authors of the Constitution it would be a phrase that was used at the convention and that phrase is describing the problem that the Constitution was designed to solve as excess of democracy.

HM: New face here. Woody Holton, historian and author of Unruly Americans.

WH: The feeling among many of those 50 most of those 55 guys who wrote the Constitution was hey it was great that we got rid of the king but like a pendulum swung too far to the opposite extreme and now we have an excess of democracy and we've got to pull it back the other way.

HM: “Excess of democracy” might sound absurd to the average American, but what Woody means is that, under the Articles of Confederation, the states were masters of their own destiny. They had a say in whether they would be taxed, they got to make up their own rules. And it wasn’t working. Woody says there were so many factors that lead to the debates on the floor of the Philadelphia State House. But money makes the world go ‘round. And after the revolutionary war, the country had empty pockets and crushing debt, with no surefire system in place to collect taxes.

WH [00:24:21] The the people who wrote the Constitution did not write it to make the country more free. They wrote it to get the country out of a recession. They thought the country was in a recession because debts weren't being paid both to the bondholders who had bought up the war bonds or to private creditors. And they had other practical modems like that.

HM: So many delegates saw a lot of danger in granting a federal government more power. And so much of that is about who you can trust, right? Like, these powers can be a good thing if they stop anarchy and improve the economy. But there is some serious danger in power, too. The inherent dichotomy is so stark that there is no way to make everyone happy here. But we do need a new government, right? Nobody wants to go crawling back to Great Britain! So from the absolute get-go, this convention is going to have a theme.

NC: Powdered wigs? Waistcoats?

HM: Compromise.


NC: Ah. Compromise. Yikes. Good luck. By the way, what exactly is the Virginia plan? What does Madison want the new government to look like?

HM: Right. So Madison proposes a strong national government that could make and enforce laws and collect taxes. The legislation would be bicameral, and representation would be proportional to a state’s population.

DS [00:11:30]: And when the Virginia Plan comes out, those devotees of states rights were the most shocked and appalled. Couple of delegates from New York actually left after six weeks that because they were so unhappy with the centralization of power under the draft that everyone was working on. So when that argument was engaged it ended up morphing into an issue over representation and that was a lucky thing I think for the people who wanted a stronger national government because there are certain -- once you're arguing about representation, you're arguing over how to do it as opposed to should we keep this system where the states have essentially almost all the power.

NC: Ohhhh ok. So Madison proposes this plan, and in order to talk about this plan, the delegates have to talk about representation. And that’s such a hot button issue, that suddenly everyone is debating how they’ll be represented in this new congress, and they’ve mostly moved on from the fact that this is a new system of government and that wasn’t the plan for this convention.

HM: Yeah, there were enough people who genuinely wanted that stronger central government, and once the small states got up in arms about their representation, well, suddenly we are officially debating a whole new system of government. And we are officially making compromises. Little New Jersey says ok, I see your two-house proportional representation and raise you: a unicameral legislature and equal representation. Each state gets one vote. As outlined in the Articles of Confederation

DS [00:15:00] That was the bitterest fight of the summer and really almost blew up the convention in early July the small state delegates were about to leave because they'd been losing. And then finally it ended up in an issue resolved before a committee of one delegate from each of the states than they were called committees of 11 because there were only 11 states represented at the time. And they came up with his compromise that we still live with where the Senate has equal state representation. Each state gets two senators and the House of Representatives is proportional based on population.

HM: This was actually called the Great Compromise, or the Connecticut Compromise, because Oliver Ellsworth from Connecticut proposed it. No, not everyone is going to be happy, but it’s acceptable. And they’ve got more work to do. So delegates are even willing to let this go to committee to hammer out the details. But when they reconvene, it’s time to compromise again. Because when you talk representation, you talk population. And nearly 20 percent of the population at that time was enslaved.

Alvin Tillery [00:07:01] Well the three-fifths compromise was essentially one of the pro slavery clauses of the Constitution.

HM: This is Alvin Tillery. He’s the Director of the Center for the Study of Diversity and Democracy at Northwestern University.

AT [00:17:35] And what the southerners wanted entering the Constitutional Convention of 1787 was they wanted all of their slaves to be counted in the apportionment because places like South Carolina and Georgia had very very large slave populations. They were not as well developed as the Mid-Atlantic slave states or the northeastern states. And so for them if you were just counting white people they were going to have very few seats. And so entering the convention they demanded you know a full count every slave would count as one person.

HM: In some states, enslaved people made up a full third of the population. To count slaves as members of the population, rather than pieces of property, would be to give the South real power in terms of representation. So Northerners made the argument that slaves were livestock. Just like horses or oxen. You don’t count horses or oxen as part of the population, do you? So why would you count your slaves? The South said, no, these are people. Human beings. They ought to be counted. So what if they can’t vote? Women can’t vote, but they’re counted.

NC: You know, I think we’re often taught that the North was the moral player throughout the history of the U.S.. But here they are denying the humanity of enslaved people for the sake of argument.

HM: And remember, at the time of this Convention, slavery was still legal in the North, in Maryland, Delaware, New Jersey and New York. And the North had been built on slave labour.

AT: They all understood that it was immoral. And so the the old view that the framers the founding generation the slaveholders among them from Washington and Jefferson and Madison that they didn't know that slavery was wrong is belied by their own writings and statements about slavery. Let's let's not forget that in the first version of the Declaration Thomas Jefferson essentially blamed the king's evil advisers in Parliament for slavery foisting slavery upon them right. [00:12:25] Jefferson wrote very compellingly and notes on the state of Virginia about slavery being a moral evil. And so so those old arguments just don't hold any water. We know from the writings of the framers that they knew that this system was wrong but they protected it because of a combination of their economic interests and white supremacy.

NC: So what conversations were they actually having over this representation issue? Was it purely motivated by money and racism?

HM: I think the racial and economic bias is a given in this room. But there were some people -- like Gouvenour Morris from Pennsylvania and Rufus King from Massachusetts -- who argued against the entire principle of slavery from a moral point of view. Morris even suggested that the newly reformed nation buy and free all slaves, which was quickly shot down. Even in those free states, you still had men who had grown up with slaves. Who were self-interested elites.

AT: [00:13:45] And so so the entire original 13 the wealth that made them all viable is bound up in slavery in some way or another. And this is the argument the southerners used they would say well it's fine for New York and Massachusetts to say that they don't need slavery anymore but they've had slavery for 100 years 125 years and extracted great wealth from it. Well has Charles Cotesworth Pinckney would say from South Carolina South Carolina's just starting to do that. So it's not fair you know to say to say we developed on the slavery basis and now you guys can't. And I think that that argument won the day.

HM: The “compromise” part of this is in the name, of course. Three-Fifths Compromise. Southern delegates wanted their enslaved population to count as full members of the population. Northern delegates didn’t want them to count at all. So they split the difference, based on a number James Madison proposed back when they were figuring out taxes under the Articles of Confederation. The enslaved population would only be counted at three-fifths of its total. Native Americans, by the way, will also appear in article one. They aren’t counted for tax or representative purposes.

NC: Ok, but... for those delegates who were opposed to slavery, and even those states where it was illegal -- why did they give in? Why was it necessary to give the slave states some version of what they wanted?

HM: Well, the South was threatening to walk out.

AT: The South Carolinians were also incredibly clear about exiting the compact. If they did not sort of get to count some of their slave population in the apportionment. And so it was it was union and slavery or no union. And so they didn't really have a choice if they wanted a federal government. And that was what all of these men were nationalist federalists. They had done something that no one believed they could do. And they wanted to see the experiment succeed. [00:15:54]

HM: So, there’s an emotional element to this, right? They did something that nobody had ever successfully done before. They waged war against their motherland, and won, and started a brand new kind of nation. These delegates want to leave Philadelphia as an intact union. But Alvin says it’s also a practical choice.

AT: The overarching concern is the national security concern that England is coming back. George will be back. And as we all know he did come back in the War of 1812. And so the argument for union is both an argument for financial efficiency and expediency so you could actually get credit in international credit markets loan money buildup the you know the industry in the country so that you could compete with Britain and France but also provide for common defense.[00:18:57] And so one of the states two of the states exiting the union leaves them in a much more vulnerable position because you know even has a union they still lost the War of 1812 right. So this is their concern.

HM: The Three-Fifths Compromise was adopted on July 12th, and most states voted yes. Only the Delaware and New Jersey delegates were unanimously against it.

NC: I think it can sometimes be easy to revere the Constitution because provisions like the Three-Fifths Compromise are no longer in there. But this thinking about this as something that was baked into the early days of the U.S. -- how did it end up shaping us?

AT [00:19:47] Well I mean it absolutely inflated the representative power of the of the slave states in the Congress in the House of Representatives and in the electoral college and what that means is that you know five of the first seven presidents are slave owners from Virginia. Right. And you know which was the most populous and powerful of the slave states and this legacy extends into the you know the 19th century the late federal period. It allows southerners to establish a democratic party and to put in place things like the gag rule which means you can't talk about slavery or introduce petitions from northern states against slavery in Congress. And so that takes slavery off the table has a life political issue for 20 years essentially.

HM: Even after the Three-Fifths Compromise, and a clause requiring fugitive slaves be returned to their masters, were removed from the Constitution following the Civil War, southern states found ways to disenfranchise their African American population, while at the same time gaining even greater population numbers now that all people were fully counted. Here’s David Stewart again.

DS [00:45:42] You know they made grimy compromises. There's no other word for it. The Electoral College is a mess on the slavery provisions are unattractive. When Madison had to write about them in Federalist Papers he clearly found it almost impossible. But you had to get a deal. Otherwise the country might well fall apart. And that's the stakes they were playing for. [00:46:06] And if you had to swallow something you hated most of for it.

HM: And so they keep going. Madison’s plan called for an executive power -- should it be one man or a committee? Well, most states have one, so one it is. But can they veto laws? Sure, but that veto can be overridden by two-thirds of both houses. Well how are we going to elect this one powerful man? Direct election by the people? Absolutely not. What about some kind of indirect system...

NC: Oh, man. The electoral college is so weird.

HM: But it is a compromise. And then came another, this one about the slave trade itself. Ten states had banned the import of enslaved people. Georgia and the Carolinas threatened to walk out if they dared to the same to them. So...

NC: They compromised.

HM: Yeah. Congress would eventually have the power to ban the slave trade entirely. But not until 1808.


NC: Hannah, there are so many disappointing, even shocking, steps. So many ugly compromises that came out of that room. But then this plan sticks around. For over 230 years. And, in so many ways, it has benefited this country. There is a lot to be dissatisfied or distraught over, but we live in a democratic system that can actually work.

HM: Linda Monk actually pointed out the elements of the original Constitution that I think gave it the ability to last.

LM [00:18:00] So the laws that are passed day to day by congress or parliament a majority can improve. And a majority can disapprove them. But the American constitution requires a two thirds majority of the Congress or state conventions to or to propose amendment and then a three fourths majority of the states to approve it. And so that's a high bar we don't want our constitution changing at the whim of the people. But we do want it to be subject to the people.

HM: That’d be Article Five -- the Amendment Clause.

NC: Okay, now, obviously the words We, the People in the preamble did not apply to all people in the U.S. when they were written. But there’s a little bit of We, the People in that article, isn’t there? All this talk about representation, remember, it goes both ways. Yes, it’s about the congresspeople, but it’s also about the people people. The people who’ll elect them. And I feel like the same goes for the amendment process.

HM: Absolutely. The “we, the people” slowly came true. And even if it didn’t apply to everyone at first, and in many ways still doesn’t, it’s there, right? We can rise to it. I kind of feel like the amendment clause itself is a built in acknowledgement that words and ideas of 1787 may not apply to 1887. Or 1987.

LM [00:16:01] Those first three words the most important words in the Constitution really we the people. And it's it's really expressing this idea of popular sovereignty popular meaning the people's sovereignty meaning power and the preamble makes it clear that the power that is the people's is then used to ordained the Constitution. The people have the power and they give it to the Constitution. And that's why the president the Congress the Supreme Court any federal and state officer takes an oath to defend the Constitution of the United States. That's the Supreme source of our power.

[Oath montage]

HM: There was one last compromise to come out of that four-month process -- this one was suggested by the convention’s oldest delegate, Dr. Benjamin Franklin. At this point in his life, Ben Franklin had gone from a slave-owning white supremacist to the president of Philadelphia’s Abolitionist Society. This is a man who has changed his mind, radically, over time. “The older I grow,” he says, “the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.”

And Nick, I know that you’ve always harbored a desire to play Ben Franklin in 1776. And while I cannot give you that, I can do you this small kindness. Would you read Franklin’s final statement to the convention?

NC: Here goes.


HM: And you know, in the end, despite Franklin’s appeal, only 39 delegates signed. 16 abstained. Not everyone agreed on this new system of government, not everyone was happy with the compromises that went into it. But they were walking out of that stifling room with a new plan, a new system. It was a radical moment.


NC: You know Hannah, there’s one last compromise this constitution will have to wrestle with. Actually, a whole bill of them. We, the people, have a few things to say about this new system of government. And if I remember correctly, there’s a whole Article that says we get our say.

HM: Ah, that’s right. Number Seven. The Ratification Clause. But if you think those framers are going to sit back and watch that debate from the sidelines, you are sorely mistaken, my friend. They’ve just compromised their whole summer away, they worked hard for this Constitution! If the states are going to debate this, the framers are going to put in their two cents. Actually, their 85 cents. It’s time for a strong federal government, Nick. The Federalists will not go quietly.

HM: that’s next time on Civics 101.

HM: Today’s episode was produced by me, Hannah McCarthy.

NC: And me, Nick Capodice.

HM: Our staff includes Jacqui Helbert, Daniela Allee and Ben Henry. Erika Janik is our Executive Producer.

NC: Maureen McMurray subsists on mush cakes and three cups of black tea.

HM: If you want to know more about how our Constitution came to be -- and trust me, there’s a lot more to learn --- you can find resources galore at Civics 101 podcast dot org.

NC: Music in this episode by Blue Dot Sessions, Jingle Punks, Quincas Moreira, Josh Lippi and the Overtimers, Jahzzar, Vibe Mountain, Sir Cubworth, Konrad Oldmoney, Bad Snacks and the United States Marine Band.

HM: Civics 101 is a production of NHPR -- New Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Founding Documents: Articles of Confederation


The fable of its weaknesses, strengths, rise, and downfall are told to us by Danielle Allen, Linda Monk, Joel Collins, and Lindsey Stevens.

Special thanks to Paul Bogush, who taught us to play Articles of Confederation the Game with a sack of blocks. If you want to see his game in action, you can read about it here! Other teachers have tried Paul’s game as well, with tremendous results.

Editor’s Note: At one point Joel Collins notes that the Confederation Congress met in Lancaster, PA. While this meeting was during the debate about the Articles, it was in September 1777 and therefore was the Second Continental Congress, not the Confederation Congress.

Episode Clips





Civics 101: Articles of Confederation




Nick Capodice: [00:00:04] I think now is as good a time as any to admit a bit of a minor confession. I sometimes have so much trouble reading primary source documents. I've got Article 9 in the Articles of Confederation in front of me I think I have read it ten times. I don't know what it means. These documents were written a long time ago.


Nick Capodice: [00:00:24] They can be hard to understand.


Paul Bogush: [00:00:26] Primary sources are difficult to bring to light.


Nick Capodice: [00:00:29] This is Paul Bogush. He's a teacher at Dag Hammarskjold middle school.


Paul Bogush: [00:00:32] A lot of times in a classroom it's very easy to give your standard quiz where the kids will read through the documents. They'll name the different parts and spit it back on a test. But I wanted my kids to ingest the documents a little bit differently.


Nick Capodice: [00:00:44] So how on earth do you convey to someone the challenges of governing under the Articles of Confederation without putting them in a chair and making them read it a hundred times.


Nick Capodice: [00:00:54] So Hannah imagine you're sitting in a class you're about to do a blah blah boring day and your teacher comes in with his giant sack of blocks and just dumps them on the table. Heads up. No class today. We're going to play a game.


Hannah McCarthy: [00:01:10] You love games.


Hannah McCarthy: [00:01:10] I do.


[00:01:12] So the teacher cues up some war music, and they play Articles of Confederation. The class is divided into teams which are states, and more students are put in the bigger states.


Paul Bogush: [00:01:25] So the Group of Eight represented Virginia the Group of Six represented Pennsylvania. The group of four represented New York. The group of two represented Connecticut. And finally the one lonely kid by themselves represented Delaware.


Nick Capodice: [00:01:37] Oh poor Delaware. But each state got a different amount of blocks and was told to make a big strong fort that is still standing at the end of class. And the bigger your state was the more blocks you got. So Virginia got a ton of blocks and Delaware got three. Delaware's fort is done in like 5 seconds. But. Every state could do whatever they wanted to help each other out. They could trade blocks they could sell blocks that could help build each other's forts and they could change any rules of the game at all as long as they followed two guidelines.


Paul Bogush: [00:02:10] Rule number one: any state can propose a new rule as long as four out of the five groups agree to it. And rule number two: Each state would only get one vote regardless of their size.


Hannah McCarthy: [00:02:21] So they can do anything.


Nick Capodice: [00:02:23] Anything.


Hannah McCarthy: [00:02:23] But they need to convince almost all of the other states to agree.


Nick Capodice: [00:02:28] Yeah. And Delaware right off the bat proposes a rule that all states should share their blocks equally so everyone gets the same amount. And you can probably guess how that went. So Delaware tries another tack.


Paul Bogush: [00:02:39] Delaware also tried to buy blocks from other states but none of the other states want to sell them. They immediately shot Delaware down and so Delaware was stuck with just their three measly little blocks. But at that moment, me, who is playing England, stepped in and offered to sell Delaware some of the blocks that we had on hand. The other states thought this was immensely unfair and so they tried to stop it.


Nick Capodice: [00:03:06] But that didn't work because Connecticut also wanted more blocks and bought them from England.


Hannah McCarthy: [00:03:11] Did they pass any rules at all?


Nick Capodice: [00:03:12] I spoke with several teachers who played Paul's game and they all said no matter how many times they've played it not one rule got passed. And at the end the class the teacher looks at all the forts of the different states and says, "What if I told you that Delaware's fort is solely responsible for protecting the entire class?"


Paul Bogush: [00:03:36] In every single class that I did this activity the kids that were in the group from Virginia all came to the same conclusion. And that was if they weren't so greedy and selfish and if they cared more about the other states during the process that they would still have power when it was all over.


Hannah McCarthy: [00:03:53] I'm not 100 percent certain how this game is related to the Articles of Confederation.


Nick Capodice: [00:03:58] I think you will be by the end of this episode.


Hannah McCarthy: [00:03:59] All right.


Hannah McCarthy: [00:04:00] But what did those students learn that day.


Paul Bogush: [00:04:04] That we basically need government to save us from ourselves.


Nick Capodice: [00:04:13] Not quite in the lauded canon of the Constitution or the Declaration of Independence; this document is usually remembered for one thing. It's weaknesses. I'm Nick Capodice.


Hannah McCarthy: [00:04:26] And I'm Hannah McCarthy.


Nick Capodice: [00:04:27] And this is Civics 101 our founding documents series. Today we're talking about America's first rule book, the Articles of Confederation. To start, Harvard professor Danielle Allen told me that the Articles of Confederation are even mentioned within the Declaration of Independence.


Danielle Allen: [00:04:45] If you go back to that second sentence where they say that it's the job of the people to lay the foundation on principle and organize the powers of government? That, those two phrases are there to-do list. And that's exactly the committees they set up in June of 1776. They needed a committee to articulate the foundation of principle, that was the committee drafting the Declaration of Independence, and then they needed a committee to organize the powers of government. And that was the committee drafting the Articles of Confederation.


Nick Capodice: [00:05:11] This was a committee of 13 led by anti-independence Congressman John Dickinson of Delaware.


Hannah McCarthy: [00:05:17] So they were written even before we declared independence from Britain.


Nick Capodice: [00:05:22] No because there were sixteen months of revisions.


Nick Capodice: [00:05:26] And then the Continental Congress adopted them in 1777 but they weren't fully ratified by the states until 1781. The American revolution didn't end till 1783.


Hannah McCarthy: [00:05:37] Ok so Articles of Confederation what do they say.


Nick Capodice: [00:05:40] The first article is just "the style of this Confederacy shall be the United States of America."


Hannah McCarthy: [00:05:47] Confederacy, like the South in the civil war?


Nick Capodice: [00:05:52] Yeah Confederacy is just a style of government with individual sovereign states. No big central power running everything. The most famous one today is the European Union.


Hannah McCarthy: [00:06:03] But why did we want it to be like that.


Nick Capodice: [00:06:05] Here's Linda Monk, she's a constitutional scholar and the author of The Bill of Rights a User's Guide.


Linda Monk: [00:06:10] I think it's it's a new government trying to decide OK we didn't like the way the old King did it or the old government did it. How are we gonna do it now? I mean we, think about that that the colonies, the former colonies were able to unite together to fend off the world's strongest military was astonishing. But again as Washington recognized, a revolution by itself is commonplace.


Nick Capodice: [00:06:44] A revolution is an idea and that's a lot easier than a rulebook. We wanted to make sure we got everything right. And when you think about the mindset of the people who wrote this they were coming from a monarchy and they wanted this new system of government to be as opposite as possible to what rule under England was like. I've even heard teachers refer to this using a Goldilocks metaphor, that monarchy was too hot and the Articles of Confederation were too cold.


Hannah McCarthy: [00:07:11] And the constitution is going to be just right.


Nick Capodice: [00:07:13] Exactly. I asked Joel Collins, law professor at South Carolina Honors College, about the Goldilocks metaphor.


Nick Capodice: [00:07:20] Too, hot one's too cold, and constitution is just right.


Joel Collins: [00:07:22] Well that's a simplification. I don't agree with you. OK let's talk about the articles. So so here we are. We have declared our independence we fought for our independence. We've won the surrender of Cornwallis at Yorktown. By the way I call it The War of Independence not the Revolutionary War. We weren't trying to overthrow King George just wanted our freedom. But the one thing that these newly formed states had in common was a desire to avoid a strong central government. They did not want that. The articles are referred to, in the language of their articles, a firm league of friendship. And the articles were designed to be really inefficient.


Hannah McCarthy: [00:08:08] So how did this purposefully inefficient government work?


Lindsey Stevens: [00:08:12] They have one branch of government and that's the Legislative branch. And they call that the Confederation Congress.


Nick Capodice: [00:08:18] That's Lindsey Stevens, government teacher from Katy Texas.


Lindsey Stevens: [00:08:21] It's unicameral so there's only one group and one state gets one vote. So that's the structure of it. And then they specifically list what powers the national government can have. They have the power to coin money the power to make treaties with foreign nations and they also do have the power to request money from the states.


Nick Capodice: [00:08:42] Request money. That word request. It's really important. The federal government isn't taxing states. They're just asking the states for money.


Hannah McCarthy: [00:08:51] And what if the states say no?


Nick Capodice: [00:08:53] You just stand on your porch and shake your fist at them and then if you're another state you say, well look Delaware didn't do it I'm not going to do it either.


Lindsey Stevens: [00:09:00] After the American Revolution ends the states no longer have a common purpose. That was what was holding this League of Friendship together, that they all had a common interest and that was winning the American Revolution and sticking it to the man sticking it to the British government. Once that common interest is gone, the quarrels, the fighting begins.


Linda Monk: [00:09:20] It's like 13 arguing brothers and sisters they all want to be equal.


Nick Capodice: [00:09:24] That's Linda Monk again.


Linda Monk: [00:09:26] No, you take out the garbage. No I don't want to take out the garbage, you take out the garbage. And it particularly came down to this issue of taxation of how are you going to support a government if the states individually aren't willing to pay taxes to cover the costs? And like I say the, can you imagine today if we had an army of unpaid soldiers? Would we expect that government to long continue? No. So the biggest issue was that Congress as it would say the United States in Congress Assembled, that was actually the name of the government. It had some powers, but fundamental is the power to tax. And until you had some agreement amongst the states that was going to allow that it was going to be very difficult.


Hannah McCarthy: [00:10:17] The articles could be amended right.


Nick Capodice: [00:10:19] Yes.


Hannah McCarthy: [00:10:19] So why didn't we just add an amendment saying that the government could tax the states?


Nick Capodice: [00:10:24] Well the amendment process itself was a huge issue.


Joel Collins: [00:10:28] It took 13 out of 13 to change the articles. Rhode Island, which they call Rogue Island wouldn't ever go along with anything. They were always the "no" vote. And as a result of that they couldn't get that 13 out of 13 votes necessary. By the way each state had one vote. That's the way it worked back then. And that's the way it worked at the Constitution Convention, each state had one vote. It took nine out of 13 to enact anything. They never had the power to create and fund an army or a navy. They never had a right to control interstate commerce, and these states were effecting disadvantages on each other by enacting tariffs and levies, duties and all that. And so the trade was just a mess. There were menacing foreign powers looking at these rich colonies sitting there, you know, unorganized and ununited. It had no chief executive.


Hannah McCarthy: [00:11:32] No president at all.


Nick Capodice: [00:11:34] Well there was a president of Congress but that's like for trivial pursuit. Not a president with powers like you and I know it. There was also no judicial branch no national courts and no official meeting place. No, like, building.


Joel Collins: [00:11:48] Go back and read about all the various places the Articles of Confederation, the Confederation Congress met. They met New York, Philadelphia, Lancaster Pennsylvania one time. And one of the books that I assigned to my students David O. Stewart says, "a peripatetic government can never be expected to be very strong and powerful."


Hannah McCarthy: [00:12:10] This doesn't sound good.


Joel Collins: [00:12:11] There were so many problems. There was no common currency. Think about that. You couldn't go into some other state and use your money because it was no good. There were exchange rates but they wildly fluctuated and they were not consistent. For one thing without liquid currency available people who owed money and who couldn't pay their debts with bartered crops or something like that were in a heck of a bind.


Nick Capodice: [00:12:41] Hannah you've got to look up photos of this early American currency. It may have been an economic nightmare but it was certainly a beautiful one. You've got Connecticut shillings, Rhode Island dollars, and Virginia pounds sterling.


Hannah McCarthy: [00:12:54] I'm seeing the flaws of the Articles of Confederation but were there any strengths to it?


Nick Capodice: [00:12:59] I asked Lindsay that exact question.


Lindsey Stevens: [00:13:01] Under the Articles of Confederation the Continental Congress was able to pass one very successful law and that's the Northwest Ordinance.


Lindsey Stevens: [00:13:11] The Northwest Ordinance decided what we were going to do with the land that we had acquired through the Treaty of Paris at the conclusion of the American Revolution.


Nick Capodice: [00:13:20] This land that we got from Britain at the end of the war was called the Northwest Territory and it includes most of modern day Ohio Indiana Illinois Michigan and Wisconsin.


Lindsey Stevens: [00:13:30] And the question that the delegates had to answer is, "What are we going to do with this land? Are we going to make it a colony? Are we going to make it a territory? Can it be admitted as a state?" And they saw the writing on the wall that if they left it as a colony the Territory could eventually have another revolution.


Hannah McCarthy: [00:13:50] So this is another example of let's not do things the way that England did. We don't want another little colony to break off and have a revolution, right?


Nick Capodice: [00:13:59] Right. So they say these territories can become states part of the United States. But there are some requirements;.


Lindsey Stevens: [00:14:05] They have to have self-government, they have freedom of speech freedom of the press freedom of religion. They're not allowed to have slavery.


Hannah McCarthy: [00:14:13] OK. Stop. This ordinance says slavery is not legal in new states?


Nick Capodice: [00:14:20] Yep. We're three documents in and we have finally arrived at our first national limitation on the expansion of slavery. But states that practice it already are allowed to continue to practice.


Hannah McCarthy: [00:14:33] And therefore become even more rich and powerful.


Nick Capodice: [00:14:36] Yes. So this can be viewed as a pro slavery and an antislavery ordinance. But that aside, if a new territory abides by these rules it can apply to become a state. They have to have a constitution and they had to be approved by the Congress.


Lindsey Stevens: [00:14:53] But once they went through that process they were able to have equal rights and equal representation in the government as the original 13 states. And that was really a revolutionary idea of us adding more states to our union that really didn't happen in the past.


Hannah McCarthy: [00:15:10] So there is a little good but it seems like a lot of problems in this weak system of government. How does it all come crashing down in the end.


Nick Capodice: [00:15:21] It crashes like this. You got this government that can't tax,, can't collect money and therefore can't pay soldiers. And as Linda Monk puts it:.


Linda Monk: [00:15:30] Unpaid soldiers after war's over are not a good idea.


Nick Capodice: [00:15:35] And it leads to something called Shays' Rebellion.


Linda Monk: [00:15:39] We can think of that term harshly today, call it rebellion instead of, say, revolution. But really Daniel Shays had been a captain, he was a Revolutionary War veteran. These were farmers from Western Massachusetts who had gone off to defend their country while the bankers from Boston were foreclosing on their debts and taking away their homes. That didn't sound fair or to the people of western Massachusetts and Shays and other unpaid veterans.


Joel Collins: [00:16:09] So he and these farmers decided to march on the armory in Springfield Massachusetts and seize the guns and weaponry and ammunition, and they were gonna then march down to where the Confederate Congress was meeting. And they were gonna absolutely fire 'em up, they were gonna take over the government.


Nick Capodice: [00:16:33] So Massachusetts says "we need help" and the federal government requests that the states chip in with money and soldiers and cannon. But all those states say they've got their own problems.


Hannah McCarthy: [00:16:43] So what happens.


Nick Capodice: [00:16:44] What happens is wealthy private citizens are losing money due to this uprising pool their resources together and they hire a private military to quell Shays and the 4000 plus rebels. But look at the implication of this. You've got private citizens hiring private citizens to go to war with private citizens. Is that what you want? Is that what America is? Is that what this new nation is going to be like? And if it happens in Massachusetts who's to say it's not going to happen in your state? Shays' Rebellion is a cautionary tale.


Nick Capodice: [00:17:24] So we're at the beginning of the end. As is so often the case it comes down to money. All this time the states have been doing whatever they could with their own constitutions and every state had their own constitution by the way, just to make things work when it came to interstate commerce, dealing with those Rhode Island shillings and those Connecticut dollars. So what they had to do is create treaties just to trade with each other, like foreign nations. And there's a call for a political convention at Mann's Tavern in Annapolis Maryland to talk about how we should handle trade between the states.


Joel Collins: [00:18:01] James Madison was there. Only five states sent representatives. The host state Maryland sent nobody.


Lindsey Stevens: [00:18:09] They have been given directives from their states to discuss interstate commerce and to create trade agreements. But on New Jersey's directive from their state it says "anything else pertinent to the success of our country."


Nick Capodice: [00:18:23] Anything else pertinent to the success of our country. Anything else? New Jersey is like, "anything any of us, you, want to chat about while we're all here? Some sort of big elephant in the room? Maybe we could talk about fixing this disaster of a government system? But they can't do much with just five states so they decide to meet up again next year. But not this bar in Maryland. Let's do it proper, let's do it in Philadelphia.


Hannah McCarthy: [00:18:56] I think I know where this is going....


Nick Capodice: [00:18:56] The point of this episode is not to say the Articles of Confederation were an abject failure and oh how foolish were we. They taught us a great deal about ourselves. So I want to end with a final thought from Lindsay Stevens.


Lindsey Stevens: [00:19:08] Some people call the Articles of Confederation a "learning to crawl before you walk" document, taking the first steps of creating a national government. Some people consider it to be a total mistake. I think those people are looking at it with with the insight of what we know today.


Lindsey Stevens: [00:19:25] If you think about it though the Articles is really a good first step towards a national government. What we learned from the articles is that absence of power doesn't create a limited government, it actually creates an ineffective government. You nkow, government has a purpose. And that is to protect the unalienable rights of its citizens. In order for that to happen we do have to give the government some power. We just have to be careful about how we do that. And so we developed a system of checks and balances, separation of powers in order to make sure that that system stays in place and that the government's power is limited.


Nick Capodice: [00:20:00] So, did we learn from our mistakes? Can we keep this republic, Hannah?


Hannah McCarthy: [00:20:07] Find out next time on Civics 101.


Nick Capodice: [00:20:11] Today's episode was produced by me, Nick Capodice, with Hannah McCarthy.


Hannah McCarthy: [00:20:14] Our staff includes Jacqui Helbert, Daniela Vidal-Alee and Ben Henry. Erika Janik is our executive producer.


Nick Capodice: [00:20:20] Maureen McMurray is a justice fighter in the firm league of friendship.


Nick Capodice: [00:20:24] If you want to check out some photos or read more about Paul Bogush's lesson plan on teaching the Articles of Confederation with blocks, head on over to our website


Hannah McCarthy: [00:20:35] Music in this episode by Jahzzar Blue Dot Sessions Kevin McCloud, ASura, and Scott Gratton.


Nick Capodice: [00:20:42] Civics 101 is a production of NHPR. New Hampshire Public Radio.






Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Founding Documents: Declaration of Independence



Episode Segments:





Civics 101

Founding Documents: Declaration of Independence




1776: [00:00:08] We are about to brave the storm in a skiff made of paper. And How it shall end, god only knows.


Nick Capodice: [00:00:16] I don't know how shall end. But this. This was our beginning July 4, 1776. This was the moment that we became we.


Nick Capodice: [00:00:39] About a month earlier Richard Henry Lee of Virginia read the following resolution before the Continental Congress. "That these United Colonies are and of Right ought to be free and independent states; that they are Absolved from all Allegiance to the British Crown and that all political connection between them and the State of Great Britain is and ought to be totally dissolved.


Nick Capodice: [00:01:07] A committee of five was appointed to draft a statement for the world to declare the reason for such an action. Lee's resolution was debated and adopted by 12 of the 13 colonies on July 2nd 1776. New York abstained. And on the fourth the Declaration was adopted. It was sent to a young Irish immigrant, John Dunlap official printer of the Congress, to be turned into about 200 broadsides to be sent around the colonies. 26 of these, called the Dunlap broadsides, are known to exist today. These weren't printed to sit in glass cases or hang on the walls of state. These were printed to be read out loud. To assemblies, to committees, on Town Hall steps, to the commanders and troops who had already been at war for over a year. Copies were made for the colonists in German and French. And one Dunlap broadside was put on a ship to England where it would be read by King George himself. So whether we're celebrating the successes or examining the flaws of this great democratic experiment, this was the moment that they became our successes. Our flaws. This is the reason I'm a little nervous investigating our literal founding document. And there's one more reason that I hesitate to mention.


1776: [00:02:41] Vote yes


Nick Capodice: [00:02:46] When I'm trying to do a levels check for a guest on this very show. Instead of asking them the industry standard question which is "what did you have for breakfast?" I really like to ask "what is the movie that you watched more than any other in your youth".


Nick Capodice: [00:03:02] Did you have a tape that got played more than any other in your household?


Byron Williams: [00:03:06] A video?


Nick Capodice: [00:03:07] Yeah.


Byron Williams: [00:03:07] Oh absolutely.


Nick Capodice: [00:03:08] What was it.


Byron Williams: [00:03:08] Casablanca.


Hannah McCarthy: [00:03:12] I watched Casablanca for the first time last year.


Byron Williams: [00:03:14] Are you serious.


Hannah McCarthy: [00:03:15] Yeah.


Byron Williams: [00:03:15] It is the greatest movie ever made.


Hannah McCarthy: [00:03:18] It's incredible.


Byron Williams: [00:03:18] It, Let's be honest it is a major piece of propaganda.


Nick Capodice: [00:03:23] That's Byron Williams we'll hear from him a little later. He loved a major piece of propaganda, but so did I.


1776: [00:03:30] Good God what in the hell you waiting for!


Nick Capodice: [00:03:36] I've seen the movie 1776, a musical about our Founding Fathers singing and dancing their way towards the signing of the Declaration independence hundreds, maybe even a thousand times. My childhood wish was to one day play Ben Franklin. Old Ben F.


Hannah McCarthy: [00:03:54] Your childhood wish.


Nick Capodice: [00:03:57] Just like I was born to play that part. So when working on this episode and I was able to get in contact with Danielle Allen, one of the top Declaration of Independence scholars in the world.


Danielle Allen: [00:04:08] I'm James Bryant Conant university professor at Harvard. I'm a political philosopher so I'm a kind of all arounder Declaration of Independence person; history, text, the impact of it and so forth.


Nick Capodice: [00:04:20] I held my breath and asked her for thoughts on the movie.


Nick Capodice: [00:04:25] Did you have any feelings about the film 1776 and its accuracy of depicting the situation.


Danielle Allen: [00:04:29] I'm embarrassed to say, I, yeah I still have not actually seen it.


1776: [00:04:37] Oh Sweet Jesus


Hannah McCarthy: [00:04:40] Oh Nick.


Nick Capodice: [00:04:40] I know.


Hannah McCarthy: [00:04:40] You sounded so nervous.


Nick Capodice: [00:04:40] I know, of course she hasn't seen it, cool people do not see it. Nobody's seen it.


Hannah McCarthy: [00:04:44] Well I've seen it. After you made me see it.


1776: [00:04:48] Does anybody care?


Nick Capodice: [00:04:49] Alright, I promise I will be more judicious about my use of clips from 1776 but a few sneak their way in. I'm Nick Capodice.


Hannah McCarthy: [00:05:01] I'm Hannah McCarthy.


Nick Capodice: [00:05:02] And today on Civics 101 we're exploring the greatest breakup letter of all time, the Declaration of Independence. What it says, what it doesn't say.


Nick Capodice: [00:05:18] To start, you should read it. It's not that long.


Danielle Allen: [00:05:21] It's short it's only 1337 words.


Nick Capodice: [00:05:24] That's Danielle Allen again.


Danielle Allen: [00:05:26] Yet it had the biggest possible of jobs. It had the job of justifying one of the most consequential political decisions ever taken, the decision of the colonists to declare independence from Britain and formally undertake a revolution.


Nick Capodice: [00:05:41] And we might take this for granted now. But there was no precedent for this.


1776: [00:05:46] It's never been done before. No colony has broken from it's parents stem in the history of the world!


Danielle Allen: [00:05:51] So think of that you're trying to justify the creation of a new nation. You're trying to justify a war. All in a little more than 1300 words. You don't do that with small ideas you do that with big ideas.


Hannah McCarthy: [00:06:04] Big ideas like people have rights and the government should protect those rights.


Nick Capodice: [00:06:09] Yes. And the biggest of all that if a government fails to do that the people have a responsibility to fix it. Danielle called this a theory of revolution.


Hannah McCarthy: [00:06:19] So where do we even start.


Nick Capodice: [00:06:21] Well there are four parts of the Declaration. There's a preamble, a statement of human rights, a long list of grievances, and then the action; Lee's resolution. We therefore are doing this.


Danielle Allen: [00:06:34] The question to answer for the declaration is what on earth could justify steps of that magnitude. The rest of the declaration as an answer to that question. So I think it's good to start at the end because that way you know what question the whole text is supposed to answer. How on earth could you possibly make the case that it's reasonable to just call yourself a new nation that it's reasonable to declare yourself no longer loyal to, obedient to your king.


Hannah McCarthy: [00:07:01] If youre going to say that you are no longer beholden to the laws of your country you better have a pretty good reason.


Nick Capodice: [00:07:08] There were good reasons and there were many. There are 27 very specific grievances in the Declaration. These are acts of the king that demonstrate his tyranny and therefore justify a revolution. Concord and Lexington, the first battles of the Revolutionary War, happened over a year before the declaration had been written. But I want to take it back even further and start with civics teacher Cheryl Cook Kallio who boiled it all down to one sentence.


Cheryl Cook-Kallio: [00:07:38] No matter how hard they tried, the English were never going to look at them as being equals. Many people don't think about the salutary neglect that happened in the colonies for 150 years before we started to see the beginnings of unrest.


Hannah McCarthy: [00:07:56] What is salutary neglect?


Nick Capodice: [00:07:58] It was how England governed these colonies. It wanted access to their raw materials. But that is all they wanted. Nobody was enforcing trade laws, nobody was mandating British rule. The colonies were pretty much left to govern themselves.


Cheryl Cook-Kallio: [00:08:14] They just ignored that the colonies even were there. And so you had this large vast amount of land where people from Great Britain would come or people from England would come and recreate their lives. And some would liken the beginning of that period is being a just a blank slate. This idea that you could go in and create a government. Of course they did because they were three months away and 3000 miles away from Parliament and so they were very used to direct democracy.


Nick Capodice: [00:08:46] But then this system of salutary neglect is reversed in the 1750s when England needs a ton of money to do the Seven Years War. This is a massive war and involves all the powers of Europe and this extends to the British fighting the French who are allied with the native tribes. In the colonies it's called the French and Indian War. So England starts to tax. And England start showing up.


Emma Bray: [00:09:10] There is a whole kind of line of increasing hostilities that starts happening.


Nick Capodice: [00:09:16] This is Emma Bray. She's the executive director at the American Independence museum.


Emma Bray: [00:09:20] The British start coming to the colonies. They're being quartered here. And it's not like today where military troops are on bases or have their own homes provided for them. They were being quartered within residents homes here in the colonies. We're getting taxed on goods that we're producing, raw goods that we're creating, giving to England, they then produce it and then we're taxed on them coming back to us. Everything is now getting taxed. So it's not just your sugar, it's your paper it's the Stamp Act, it's every thing. It's tea. It's all of these commodities that you need to live. And at a certain point it just starts to become too much and people are starting to get fed up with it.


1776: [00:10:03] Stamp Acts, Townshend Acts, Sugar Acts, Tea Acts


Nick Capodice: [00:10:07] But it's more than just the money. There are stories of individuals radicalizing.


Cheryl Cook-Kallio: [00:10:14] One of the pieces of discontent was that colonial commissions were considered beneath any level of British commission. So if you were a colonel in the colonial army you were still considered to be below any British commission that was fighting the French and Indian War.


Nick Capodice: [00:10:34] Cheryl told us documented story of one lieutenant colonel who wanted a British Commission and was promised one by General Braddock head of the British army in the colonies.


Cheryl Cook-Kallio: [00:10:43] During a particularly bad battle I mean fierce, General Braddock was killed.


Nick Capodice: [00:10:50] The lieutenant colonel steps up.


Cheryl Cook-Kallio: [00:10:52] He led the surviving soldiers. His horse was shot out from under him twice. He's got musket balls in his jacket. He has really become the epitome of what you think a good British Army officer would look like and he saved the day for those people that were trying to get away because many many many British soldiers were killed during this battle.


Nick Capodice: [00:11:15] He thought this must be sufficient evidence to get that coveted British commission. So he traveled all the way to Boston.


Cheryl Cook-Kallio: [00:11:23] And met with the acting General for the troops in in the colonies and asked for this commission and said I was promised this by General Braddock and was pretty much laughed at.


Nick Capodice: [00:11:34] Maybe by now you figured out who this lieutenant colonel was.


Cheryl Cook-Kallio: [00:11:39] For me that really was one of the scenes that caused George Washington to become radicalized.


Woody Holton: [00:11:49] If you asked me what turned people in New England from mere rebels and protesters into wanting independence I'd say Lexington and Concord.


Nick Capodice: [00:12:00] This is Woody Holton history professor at USC.


Woody Holton: [00:12:03] But if you ask me what turned white Southerners from merely protesting to wanting independence the answer is this informal alliance that African-Americans initiated with the British government. You know that in South Carolina where I live now the majority of the people were enslaved. In Virginia where Jefferson and Washington were 40 percent of the people were enslaved. Enslaved Americans start seeing this battle between the groups that were later going to call loyalists and rebels, enslaved Americans see that split among whites. And they say you know in this gap between one group of whites another group of whites that's an opportunity for us. And they literally go and knock on the door of the governor's palace in Colonial Williamsburg to tell the governor you just give us our freedom we'll help you win this war. And he initially turns them away, as do other colonial governors, but they keep coming. And eventually British officials who had very few white supporters started accepting these black supporters and in fact they issued Emancipation Proclamations very similar to the one that Lincoln would issue. That infuriated whites. One guy referred to it as aiming a dagger at our throats through the hands of our slaves.


Cheryl Cook-Kallio: [00:13:24] The Stamp Act was passed the Coercive Acts were passed. You know at one point the colonial government tried to seat someone in Parliament and they were refused. They sent an Olive Branch petition trying to work things out.


Nick Capodice: [00:13:38] And the king responds by officially declaring the colonies in rebellion.


John Adams: [00:13:46] Those who persist in their treason, the punishment shall be death by hanging.


Hannah McCarthy: [00:13:54] You introduced this as a breakup letter Nick but it sounds like a messy bloody drawn out divorce.


Nick Capodice: [00:14:03] Yeah. You don't respect me. I've tried hard to make this work. We created a Continental Congress expressly to work with you and you have done nothing. Enough. And we get to Lees resolution and the formation of a committee of five to write a declaration.


Hannah McCarthy: [00:14:22] So I've been taught that Thomas Jefferson was the author of the Declaration of Independence but it was co-written by this committee.


Nick Capodice: [00:14:30] Jefferson wrote the Declaration to be sure but the committee made significant changes and you can even see copies of his first drafts with their edits. On the committee of five are some big names you've probably heard before. Ben Franklin, John Adams, Thomas Jefferson himself, but also Robert Livingston from New York and Roger Sherman from Connecticut. Their final draft was presented to Congress on June 28th where over 80 edits were made. But then there were two final changes made to the declaration after Lee's resolution had been adopted. They were made on July 3rd. The first was a removal of reference to the British people as they wanted to place the blame solely at the feet of the king. But the second was the removal of a grievance that becomes a central plot point in 1776.


1776: [00:15:22] He has waged war against human nature itself and the persons of a distant people who never offended him. Captivating and carrying them into slavery in another hemisphere. Determined to keep open a market where men should be bought and sold...


Byron Williams: [00:15:34] It was a stinging critique on the slave trade.


Byron Williams: [00:15:39] I'm Byron Williams. I'm an author national columnist, adjunct professor at Wake Forest University and the host of the NPR-affiliated The Public Morality.


Nick Capodice: [00:15:49] The declaration almost had a section that denounced the practice of slavery but it was removed.


Byron Williams: [00:15:54] The argument for that has been that the primary reason for coming together was independence. They did not want to get bogged down in secondary issues, slavery being one of them, or more to the point that it wasn't a time to discuss the efficacy of human bondage if you will.


Nick Capodice: [00:16:19] Now you might think that this was a fight between the north and the south. But it was actually a coalition of southern slave owners and northern merchants who profited from the slave trade. This is a huge moment in the movie when South Carolina Representative Edward Rutledge just takes the North to task.


1776: [00:16:37] Our northern bretheren. Feeling a bit tender towards our slaves. They don't keep slaves, oh no. But they're willing to be considerable carriers of slaves to others.


Danielle Allen: [00:16:54] First of all important to realize that already in 1776 opinion about slavery was split. So the committee of five that drafted the Declaration was not composed solely of slaveholders. Thomas Jefferson who chaired the committee was a slaveholder. John Adams was not, he always thought slavery was a bad thing and never owned slaves. Benjamin Franklin had been a slave owner earlier in the eighteenth century but by this point he had liberated his slaves and had become somebody who was committed to abolition. So the question of where slavery fit in the document was complicated. In fact the phrase life liberty and pursuit of happiness is a compromise phrase that takes the language from the antislavery position. The fact that the language is about happiness not property was an antislavery choice.


Hannah McCarthy: [00:17:43] Life, liberty and property. That's John Locke right. That was his idea. These things that government is supposed to protect. This is what you have a right to. So how is striking property and making it happiness and antislavery pursuit.


Nick Capodice: [00:17:59] So that word 'property' and the desire to protect it had become code. Code for defending the institution of slavery.


Danielle Allen: [00:18:08] So when you look closely at the text of the declaration you can see both the antislavery voices in the phrase The Pursuit of Happiness. And you see the proslavery voices in that erasure of the text condemning King George for the slave trade. But even with the clause about slavery removed, that line that all men are created equal became a rallying cry for abolitionists after independence was declared. So in January of 1777 Prince Hall, a free African-American in Boston, quotes from the language of the declaration and submitting a petition to the Massachusetts General Assembly seeking the abolition of slavery. And the language factors in for other abolitionists as well. And by 1780 slavery has been abolished in Massachusetts, Pennsylvania, and Vermont. So we fail to recognize actually that the Declaration of Independence was also the moment that the project of abolition is crystallized in the U.S. So the document is not just about what slave owners wrote and thought. It is also about what those who were opposed to slavery wrote and thought.


Byron Williams: [00:19:08] And we see it through the abolitionists you know to do Frederick Douglass and others. And Angelina Grimke. People always pushing for this notion of freedom and so to be a country that is formed on this idea and part of that idea is freedom; to hold some in bondage is incongruent.


Hannah McCarthy: [00:19:34] That is something that Americans have wrestled with from Frederick Douglass to my 8th grade social studies class. How on earth can a document say all men are created equal but not include women African-Americans the Native Nations, everyone else in the country.


Nick Capodice: [00:19:54] Well Hannah, one potential and disputed reason for this could be that maybe they didn't even really mean it. Woody Holton even called it a throwaway line.


Woody Holton: [00:20:05] The yada yada phrase. All men are created equal is the yada yada phrase. And of course it's I don't think it's that now. That's how we can change the meaning of a document.


Woody Holton: [00:20:14] The fundamental right that the Declaration of Independence asserts you know it's mostly just a list of complaints. No one ever reads a complaints except NPR once a year. But it's the fundamental right that they were contending for was the right of secession. All of stuff about all men are created equal. They're say that's a build up to saying, "well OK everybody is equal and we've got certain rights and one of those rights is to create governments but then also to get rid of governments if we don't like them and we don't like the government of George the Third in parliament. So we're gone." But before the year 1776 was out Lemuel Haynes, who was an African-American soldier in the Continental Army, wrote an essay unpublished at the time called Liberty Further Extended where he said, "Hold on a second, that phrase that you kind of rushed through Mr. Jefferson, all men are created equal. Let's stop and talk about that a little bit." Others did that as well culminating in Lincoln at Gettysburg saying this country was not formed by the Constitution it was formed by the Declaration. And so what all of those Americans beginning with Lemuel Haynes in 1776 did was transform a an ordinance of secession into a universal declaration of human rights.


Nick Capodice: [00:21:38] This relationship between the declaration and slavery is frequently addressed. But Danielle brought up a grievance that's very rarely talked about it was glossed over when I was in school it's not in 1776.


Danielle Allen: [00:21:50] And this is really for me the worst moment in the Declaration the one piece of the Declaration that still I think really hurts. And this is where they say that they complained that the king has excited domestic insurrection amongst us and has endeavoured to bring on the inhabitants of our frontiers the merciless Indian Savages whose known rule of warfare is an undistinguished destruction of all ages sexes and conditions. And that, the treatment of Native Americans by the colonists really was was reprehensible and we still haven't fully acknowledged that fact. Whereas in fact you can see antislavery voices in the declaration you can't say the same thing about the treatment of Native Americans, you can't see a moment of sort of positivity in the Declaration on that front. And for me there's a deep lesson there because it means that as we think about the values of the Declaration in the 21st century we have the job of folding into those values a true principle of inclusion. A true principle that embraces all the peoples of this continent in a vision of how to achieve safety and happiness for all of us.


Byron Williams: [00:23:02] Thomas Jefferson said he wanted to write an expression of the American mind. He achieved that in my view in a single sentence, you know we hold these truths to be self-evident that all men are created equal endowed by their Creator with certain rights among them life liberty and the pursuit of happiness. So right there in that single sentence he's enjoining liberty and equality as part of the American narrative. I mean that I mean that is, so right there. Not based on religion, not based on homogenisation, liberty. This idea that we would be a country based on liberty and equality. That in and of itself is profoundly radical. Has not done has not been achieved before or since. That a country would be formed on an idea. And quite frankly I think it's a radical idea. And the proof of how radical the idea is we're still struggling with it in the 21st century. I mean each day we can pick up a newspaper or go to our blog of choice and see where liberty and equality at some point are in tension. And That is the genesis of the declaration.


Nick Capodice: [00:24:18] So Byron Williams calls it a radical document. Woody Holton has referenced it as an ordinance of secession. Jefferson called it an expression of the American mind. And Danielle Allen says it's a masterclass in political philosophy and a universal declaration of human rights.


Hannah McCarthy: [00:24:36] Sounds like everybody is potentially correct here. Right?


Nick Capodice: [00:24:40] Yeah I watched the six hour video of a panel talk at the National Archives and Danielle Allen was on the panel and Woody Holton was on it. And the two of them got into a disagreement about the Declaration and what he said to me was, "well you know the thing is we were both right."


Nick Capodice: [00:24:57] This, this is a document that was built on tension and compromise. And it meant something different to each man who signed it. Each person who heard it, to all who read it.


Nick Capodice: [00:25:16] So! We got ourselves a new country. Only question is, how are we gonna run it? That's Next time on Civics 101.


Nick Capodice: [00:25:30] Today's episode is produced by me Nick Capodice with Hannah McCarthy.


Hannah McCarthy: [00:25:34] Our staff includes Jacqui Helbert, Daniela Vidal-Alee and Ben Henry. Erika Janik is our executive producer.


Nick Capodice: [00:25:40] Maureen McMurray is in charge of supplying both saltpeter and pins.


Nick Capodice: [00:25:44] Special thanks to loyalist scholar Maya Jasanoff, The Declaration Resources Project at Harvard, and the American Independence museum in Exeter New Hampshire.


Hannah McCarthy: [00:25:52] Super Special Thanks to Jesse Kratz, historian at the National Archives. She offered to tour us around both the archives and the Library of Congress and show us these documents in person. We could not go because the government shut down.


Nick Capodice: [00:26:07] Music for this episode by Blue Dot sessions, Scott Gratton Kevin McCleod Kai Engel, Makiah beats and Electroswing. And from 1776 the greatest movie musical ever made.


Hannah McCarthy: [00:26:20] Civics 101 is a production of NHPR, New Hampshire Public Radio.






Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Founding Documents: Magna Carta


In this episode, you’ll learn how Magna Carta survived and thrived its way into our democracy. Our experts this time around are Derek Taylor, William Hubbard, Joel Collins and Susan Herman.

Episode Segments

audio Block

More Resources

Want more Magna Carta history? The British Library gives it to you straight, and in less than 4 minutes!

You can also do some deep diving of your own over at The Magna Carta Project. This site is chock full of resources, including, of course, the whole remarkable document broken down by clause, complete with audio commentary.

And here is actual footage* of that fateful day at Runnymede!

*Footage not actual.





Civics 101:

Magna Carta


Hannah McCarthy: [00:00:00] The high Middle Ages.


[00:00:05] Europe's population is growing rapidly. The Black Death is just a glint in some rat's eye and still a century away. The economy is booming, the Catholic Church is crusading -- the feudal system is alive and well.


Peasant, Monty Python and the Holy Grail: [00:00:19] Oh, king, eh? Very nice. And how'd you get that, eh? By exploiting the workers! By hanging on to outdated imperialist dogma which perpetuates the economic and social differences in our society.


Nick Capodice: [00:00:31] When are we exactly?


Hannah McCarthy: [00:00:32] We're looking down the barrel of twelve hundred.


Nick Capodice: [00:00:35] Tremendous tremendous carry on.


Hannah McCarthy: [00:00:37] King Richard the Lionheart has just died after being shot in the shoulder possibly by a vengeful boy child. Richard's younger brother John inherits England. He is by many accounts a petty, cruel and hated ruler. In fact he attempted a rebellion back when Richard was alive and fighting in the Third Crusade. This is actually a key plot point in most Robin Hood movies by the way Prince John is the villain who exploits the poor serfs and prompts Robin to steal from the rich and give to the poor.


Nick Capodice: [00:01:08] Hannah I love this. I love a good history lesson but I just needed chicken for a second here. Huh. Don't get me wrong this is a spectacular rabbit hole that we're falling into. But we do need to get a bit of a wiggle on this founding document series that we are planning for a month or so.


Hannah McCarthy: [00:01:24] I hear ya. But what if what if. Nicholas I told you that there is a founding document all the way back here in the 13th century. A founding document for the United States the very first founding document the most foundational and not just for us not just for the United States.


[00:01:46] Some would say for the very notion of freedom under law.


Nick Capodice: [00:01:52] That's got to be one heck of a piece of paper.


Hannah McCarthy: [00:01:55] It is indeed. So shall we. Back to the Middle Ages back to one of the pillars of freedom?


Nick Capodice: [00:02:01] It seems pretty Civics 101.


Hannah McCarthy: [00:02:04] Good. Because This actually happens to be Civics 101.


Nick Capodice: [00:02:07] The podcast refresher course on the basics of how our democracy works.


[00:02:10] I'm Nick Capodice.


Hannah McCarthy: [00:02:11] And I'm Hannah McCarthy, and today we are kicking off our series on the founding documents of the United States with a charter a charter written long long ago by an unpopular King and a band of fed up barons. Lords and ladies.


[00:02:26] May I present Magna Carta.


Nick Capodice: [00:02:37] The Magna Carta.


Hannah McCarthy: [00:02:38] Actually no just Magna Carta.


Nick Capodice: [00:02:40] That's what I said. The Magna Carta.


Derek Taylor: [00:02:41] You have to forgive me. People in England don't say the Magna Carta. They say Magna Carta.


Nick Capodice: [00:02:45] Who's that.


Hannah McCarthy: [00:02:46] That's Derek Taylor.


Derek Taylor: [00:02:47] I started out life as a historian. I read history and law at Oxford. I then got lured into journalism and I became an international reporter working for independent television news of London and I did quite a lot of work as well for ABC News in the States was a war reporter and reporters from all over the world especially actually in the US but now in retirement I've gone back to my first love which is history back in 2015.


Hannah McCarthy: [00:03:19] Derek did a deep dive into Magna Carta for the eight hundredth anniversary of this document he traced its influence all over the world and wrote a book called Magna Carta in 20 places.


Derek Taylor: [00:03:30] And what I did though was that I went all around not only the UK but in France in the Middle East and indeed in the USA to chart what actually happened in the extraordinary history of this amazing document.


Hannah McCarthy: [00:03:45] Before we go any further with the extraordinary history of this amazing document. Quick question, Nick, do you know what Magna Carta is.


Nick Capodice: [00:03:55] I've heard of Magna Carta before I've heard it associated with Robin Hood. I know it's from England from a long time ago. But that's kind of it. I don't know what it actually says.


Hannah McCarthy: [00:04:05] To be honest neither did I. But it turns out that it is widely celebrated in the US. I mean we've exhibited Magna Carta in Washington D.C. directly across from our own Declaration and Constitution. We currently have a version of it on display at the Library of Congress. Magna Carta, which mean 'great charter,' by the way, in Latin, has been invoked throughout American history as a symbol of a kind of universal right.


Nick Capodice: [00:04:33] I had no idea it was so important. What does it actually say? It's got to have some powerful language.


Hannah McCarthy: [00:04:40] Well here's the catch -- if you actually look at the language of the original document for example printed out and study it in school take it at face value you'll be hard pressed to find the basis for democracy in Magna Carta's original words.


Derek Taylor: [00:04:56] It's surrounded and always has been surrounded by incredible misunderstandings. It's believed for instance that it was the birth of modern democracy that it was the first constitution that gave us equality under the law. All of these I hate to break it to all of these all completely untrue.


Nick Capodice: [00:05:15] So are we wrong to care about it. Hannah, did you conceive this entire episode just so you could re-watch Robin Hood Prince of Thieves.


Hannah McCarthy: [00:05:23] That was an added perk. Also the cartoon version with the fox. Oh yeah. I won't deny it but absolutely not. That's not the reason we're doing this episode before we can understand how Magna Carta served our democracy. We have to look back at how it was supposed to serve a 13th century monarchy. So let's get back to the Middle Ages.


Derek Taylor: [00:05:46] Magna Carta actually started out life in very very simple terms as a something which was simply a peace agreement in 2015. King John of England was facing a rebellion by his barons by the chief aristocrats in the country. And they decided in fact to try and work out a peace deal between themselves to be absolutely honest neither side really believed in it. They were both playing for time while they could build up their own forces and go back to the traditional way in which in the Middle Ages people settled their differences which is that of course what they did was that they used the crossbow and the sword.


Hannah McCarthy: [00:06:28] What Derek is saying is that Magna Carta was really just a stalling tactic. Remember King John was not a popular man. Through a combination of high taxes ill will and failed military campaigns the King found himself on the bad side of some of his barons.


Nick Capodice: [00:06:45] So the barons say to him strike a deal with us and we'll lay off.


Hannah McCarthy: [00:06:48] Yeah well first they stormed London and gained a bunch of antiquing followers and really freaked John out. And then John asked them to meet him for a little chat. So they picked a neutral territory a field just outside of London on the banks of the River Thames called Runnymede and there in the soft light of summer they hammer out a peace agreement.


Derek Taylor: [00:07:11] If we look at the the wording of Magna Carta it's full of words which have no meaning to us today whatsoever. Words like amercement and trithings and halbergett. What on earth did they mean. They're all feudal terms it talks about what should happen about fish traps on the river Medway.


Nick Capodice: [00:07:30] I feel I should point out that there is nothing about halbergett or amercements or fishing in the river Medway in the Constitution or the Bill of Rights as far as I know.


Hannah McCarthy: [00:07:38] Right.


[00:07:39] Most of Magna Carta is about obscure highly specific Berin type concerns like serfs and castles and Shiers. But there is something recognizable in this documents 60-odd clauses.


Derek Taylor: [00:07:51] We do every now and again stumble on one which we think Ah now that's interesting and for one moment all freedom loving hearts leap and then historians come in and say yeah well you may think that but it's actually really not quite like that at all. Can I just read to you what clause 39 says and you'll see you think well that's great. It says no Freeman should be seized or imprisoned or stripped of his rights or possessions or outlawed or exiled or deprived of his standing in any other way. Nor will we. That's the King speaking. Proceed with force against him or send others to do so except by the lawful judgment of his equals or by the law of the land. Wonderful stuff.


Nick Capodice: [00:08:35] Yes. OK. Now you've got me on board. This is wonderful stuff and it sounds like trial by jury.


Hannah McCarthy: [00:08:40] Clause 39 does it sound like that. But it isn't that. Not really.


Derek Taylor: [00:08:46] The first thing to say is that it begins. No free man shall be seized et cetera et cetera. OK so the first thing is that 50 percent of the population women are completely excluded. The second point is that no Freeman actually in 13th century England only one man in five was free, the rest of them were agricultural serfs there were slaves so it didn't apply to them at all. So this is a document actually doing a big favor for a very small number of privileged men.


Hannah McCarthy: [00:09:19] Derek's doing a pretty good job of turning me against Magna Carta actually.


Hannah McCarthy: [00:09:24] Yeah I can kind of get that. And you know what, Magna Carta is not the mother of modern democracy... but some people do call it the midwife.


[00:09:35] It helped things along with some sage advice.


Derek Taylor: [00:09:39] It's establishing the principle that arbitrary punishment is wrong. It's establishing the principle that this kind of thing that dictators do in other words that just simply say take that man out and chop his head off is wrong. There is a process even though we don't agree with the process so that establishes that principle. But the second thing is even more important. This is the King and this is a real shocker for the 13th century. This is the king agreeing to obey the law. Now that's a first. Until this point kings were autonomous they were not responsible to anyone except God only to God. So the idea that the king has to follow rules whatever those rules are. It's an incredible breakthrough.


Nick Capodice: [00:10:31] So up until this point kings could do whatever they wanted. They made the law and they were above the law. And then suddenly the law is above them.


Hannah McCarthy: [00:10:41] Yes just not this king.


Derek Taylor: [00:10:42] Within three months of it being signed. Both sides just forgot about it and they went back to the sword in the crossbow and King John even persuaded the pope to nail it and to condemn it as being shameful shameful. But a man who is responsible to God should be made to obey rules set out by mere human beings.


Hannah McCarthy: [00:11:06] So King John places his seal on Magna Carta when he's in this field surrounded by all of these really angry barons. But then he immediately runs to the pope and he's like I'm the kings and my power comes from God. Right. And the pope is like Yeah absolutely. These parents can tell you what to do. Magna Carta is null and void and the barons wage war.


Nick Capodice: [00:11:28] That's disappointing.


Derek Taylor: [00:11:30] And it might have stayed that way it might have been a document which got banned into the vaults of some dusty old library somewhere of interest only to a few historians if it hadn't been for one thing which is that within 16 months, King John was dead.


Hannah McCarthy: [00:11:48] Dead of dysentery at age 49 now John's son Henry is in charge. He's nine years old.


Derek Taylor: [00:11:56] He was actually described as being a pretty little knight which is not the kind of words that you want to hear used about the person who's leading you know your side.


Hannah McCarthy: [00:12:04] Luckily the young king was appointed a grownup person a counsel a knight named William Marshall who wanted to smooth things over with the barons.


Derek Taylor: [00:12:13] He reissued Magna Carta. He negotiated a peace deal with the barons and said look the way it's going to be from now on under this this young man Henry the third John's son aged only nine is that we're going to follow the rules laid down in Magna Carta.


Hannah McCarthy: [00:12:36] As it turned out Magna Carta was a super useful negotiating tactic.


[00:12:41] King John wasn't so into it because it was about putting some checks on the king at least for the barons benefit but for two centuries after King John's death, Magna Carta was trotted out and revised every time a king needed to suppress or rebellion or raise money for a war. It was a king showing good faith and protecting the interest of his barons. In turn the barons would help out the king.


Nick Capodice: [00:13:04] You said the revised Magna Carta -- so that 1215 version wasn't the be all end all version.


Hannah McCarthy: [00:13:10] Right. There were actually many many versions of Magna Carta. The most significant one happened under Edward the Third in 1354. Remember how clause 39 sounded pretty good but wasn't quite there?


[00:13:24] Edward rewrote it to sound like this.


Derek Taylor: [00:13:27] No man of whatever estate or condition may be -- what a step forward that is -- no man of whatever state or condition he may be -- and if we accept for one moment in the fourteenth century it was impossible for these people to imagine that women should be included -- this is an incredible move towards equality but something even more important. Whatever condition he may be shall not be punished except by -- wait for it -- due process of law.


Nick Capodice: [00:13:57] Due process. So this is 1354. Our Bill of Rights is written in 1791... Four hundred years. How did due process get from King Edward to James Madison?


Wiliam Hubbard: [00:14:09] It basically laid kind of dormant for many centuries.


Hannah McCarthy: [00:14:15] This is William Hubbard. He's a former president of the American Bar Association and a lawyer in Columbia, South Carolina.


Wiliam Hubbard: [00:14:21] And then again in sort of a period of enlightenment English jurists by name of -- spelled Coke, pronounced Cook, and Blackstone sort of dusted off Magna Carta at a time when there was a belief that the king had become too powerful and too insensitive to the people.


Hannah McCarthy: [00:14:43] So Cook is this super important judge in the fifteen hundreds and sixteen hundreds in England. And there comes this point where the king is imprisoning people willy nilly, kind of acting like the kings of old and Coke and a handful of others say hang on we have come up against this before we know how to stop the king from this tyrannical behaviour.


Wiliam Hubbard: [00:15:03] They wrote about Magna Carta. They base their writings and their philosophies and their belief in human rights and freedom of of individuals use those words that you know though they were ancient words they they were still in existence and part of the the law of England.


[00:15:20] And so they they dusted off those words and used them in the context of the time to again try to restrict the power of the king and soon thereafter the British colonies were being established in the United States.


Nick Capodice: [00:15:39] I'm beginning to see a bit of a right place at the right time thing with Magna Carta.


Hannah McCarthy: [00:15:43] And wouldn't you know it. Sir Edward Coke was attorney general of England when the Virginia charter was drawn up in 16 0 6.


[00:15:50] Now this is one of many Virginia charters but this particular one gave colonists land rights in Virginia and it gave people born in the colonies the same rights as people born in England.


Nick Capodice: [00:16:05] And if Magna Carta applies in England...


Hannah McCarthy: [00:16:07] Exactly. Then it applies in America, too.


Wiliam Hubbard: [00:16:11] It's where so much of what we believe is essential started.


[00:16:14] If you just want to go back and look at what is the foundation the foundation for these principles are not something that just came out of the air in the late 1700s in the United States they had been percolating and expanded and they had been explications of what those words meant and then you're simply applying those magic words those critical words to changes in circumstances and there are times when circumstances demand that we go back to basics.


Hannah McCarthy: [00:16:48] If you look back at the dawn of Magna Carta back to Runnymede in the twelve hundreds the Barons were ticked off because King John was among other things levying taxes that they considered to be unfair. He was doing what he darn well pleased and they decided that enough was enough.


Nick Capodice: [00:17:06] OK this little history lesson is beginning to make a lot more sense. Let's keep it in the episode.


Hannah McCarthy: [00:17:12] Thank you.


Nick Capodice: [00:17:13] Because now we're here right at the dawn of the United States and a bunch of people who are supposedly British citizens are not being granted the same rights as British citizens.


Wiliam Hubbard: [00:17:23] The colonists were asserting that they had the same rights as an Englishman as American colonists they still had the same rights as Englishmen. And how did they prove that they proved that by citing provisions of Magna Carta.


Hannah McCarthy: [00:17:36] Now at this point in England parliament is really more important than Magna Carta Magna Carta is respected and it's lodged in English common law. But you're not necessarily going to hear British born citizens make constant reference to it in their laws.


[00:17:53] But for Americans this old unshakeable document is essential to their case.


Wiliam Hubbard: [00:18:01] You know that phrase taxation without representation became a rallying cry of the colonists who because of the rights conveyed in Magna Carta believed that the British government had broken its contract in Magna Carta gave them a basis for rebellion and gave intellectual underpinning to the revolution.


Hannah McCarthy: [00:18:18] Magna Carta was actually at hand when colonists organized their first act of political rebellion.


Joel Collins: [00:18:24] That was the stamp act Congress of 1765.


[00:18:27] That's Joel Collins, lawyer and law professor at South Carolina Honors College.


Joel Collins: [00:18:32] Here again citing Magna Carta.


[00:18:34] They say this violates Clause 12 which guarantees the king will not enact taxes except with the common consent of the realm. So the idea of taxes without representation they said violates Magna Carta.


Hannah McCarthy: [00:18:52] When the first Continental Congress met in fall of 1774 and drafted a declaration of rights and grievances to be issued to Britain. Guess what was on the seal of their journal?


Nick Capodice: [00:19:03] I'm going to guess it has some of the do with Magna Carta, Hannah.


Hannah McCarthy: [00:19:05] It does indeed. The words Magna Carta at the base of a column grasped by twelve hands representing unity.


Nick Capodice: [00:19:14] If it's the colonies why is it 12 and not 13 hands?


Hannah McCarthy: [00:19:16] That's a good question. In 1774 there were only twelve colonies. Delaware was still a part of Pennsylvania until 1776.


Nick Capodice: [00:19:24] Delaware!


Hannah McCarthy: [00:19:25] Delaware man. And speaking of those original twelve colonies concepts that originated in Magna Carta were in nine of those twelve original state constitutions.


Joel Collins: [00:19:36] You know that men have the right of self-determination unalienable rights they are rights that -- that you don't fight for and earn, they are yours upon your birth.


Nick Capodice: [00:19:54] But by the time we get to the Declaration of Independence.


[00:19:57] You're not seeing Magna Carta explicitly referenced, right?


Hannah McCarthy: [00:20:00] Yeah, true but as Joel points out our Framers were reading a lot of philosophy and social theory and they built that into the declaration and eventually into the Constitution and the Bill of Rights they interpreted the principles of documents like Magna Carta for the purposes of American democracy.


Joel Collins: [00:20:19] I think they were very mindful of Magna Carta. I think they were extremely well read. Read the golden passages of Magna Carta, Clause 38 -- henceforth no bailiff shall upon his own support accusation put any man to trial without producing credible witnesses to the truth of the accusation -- there's your every man. He's being given rights. Clause 39 -- no free man shall be taken, imprisoned, disseised, outlawed, banished in any way and we will proceed against or prosecute him only upon the lawful judgment of his peers.


[00:20:53] There's your jury trial. And The law of the land, there's your due process of law, applicable to everybody.


Hannah McCarthy: [00:21:00] It kind of doesn't matter that Magna Carta was first written for a select group of people with totally different life experience and morals and prejudice than us.


[00:21:09] What matters is this fluke of a 1215 stalling tactic somehow stayed alive long enough to inspire an almost divine Principle.


[00:21:20] And that's why it's important that we learn about it.


Susan Herman: [00:21:24] You know, Magna Carta has just had a tremendous explosive impact over time to get it.


[00:21:29] It was kind of a seed and that seed is really I think developed some offshoots that really might have been very surprising to the barons.


[00:21:37] This is Susan Herman, President of the American Civil Liberties Union.


Susan Herman: [00:21:41] Magna Carta idea of law the land was not something that went through our society it only went to 15 percent of the people. Now when the United States Constitution was written. I think you know we don't like to think about it this way but are the framers of our Constitution our founding fathers were not that dissimilar from the barons who went to King John and 1215. They were all white men. Who was left out of the people who were writing the constitution and who was left out of the basic idea of knew who could vote and who was a member of the society were women, people of color, Native Americans, men without property.


Hannah McCarthy: [00:22:19] In Magna Carta Susan says you see the seeds of freedom. It is by no means a freedom that applies to all but the idea itself is so good and feels so right to all humans that it sticks and it evolves and it spreads.


Susan Herman: [00:22:40] So I went this morning because I knew we were going to be talking I went to the ACLU website and just search the term Magna Carta. And there were 77 results when ACLU lawyers write briefs. There are many kinds of briefs in which they reference Magna Carta and those essential principles of no one being above the law.


Nick Capodice: [00:22:58] Modern day lawyers are citing a document from 800 years ago?


Hannah McCarthy: [00:23:02] Magna Carta has been referenced dozens of times and supreme court cases over the years.


Theodore B. Olson, on behalf of Bankers Life and Casualty Company: [00:23:08] The more one examines the history of the excessive fines flaws and its antecedent, the amercement - excessive aercements clause of Magna Carta...


Chambers v. Florida: [00:23:17] My concept of due process, Mr. Justice Black, which I think goes back to the law of the land of Magna Carta...


SCOTUS: [00:23:28] There were no courts to which people could seek redress against the crown at the time of Magna Carta.


SCOTUS: [00:23:29] In fact the issue was addressed in the very first clause of Magna Carta. There King John agreed, and this is quote, "the English church shall be free." End quote. And he accepted the church's quote "freedom of elections."


Nick Capodice: [00:23:52] So when we think of magna carta as the midwife of democracy it's kind of like thinking of the original Constitution and the Bill of Rights as the things that guarantee our equality because when they were written they didn't actually guarantee equality and liberty for everybody.


[00:24:08] They became that the more that we used them because the basic principles of freedom are in there.


Hannah McCarthy: [00:24:14] Exactly. Susan says it boils down to fairness.


Susan Herman: [00:24:18] I think what due process means is it really means being fair laws the land due process it means that --


[00:24:25] Well it's another way that I would describe it as to meet a lot of the idea of rights and civil liberties is really about the golden rule. That --


[00:24:34] Imagine that you're being charged with something somebody says that you've done something that the crime that's wrong and then they just want to lock you up and or punish you somehow and you would feel that that was very unfair because you might have a defense you might have something to say about how you don't think you really were wrong in what you were doing and if you didn't get a chance to defend yourself you would really feel that that was unfair.


Hannah McCarthy: [00:24:54] Fairness is this thing that were naturally drawn to. Remember how Derek Taylor talked about our freedom loving hearts at the beginning of the episode? How we read things into Magna Carta that aren't literally there?


[00:25:07] That's because we sense this magic bean at the core of Magna Carta and accidentally possibly made up magic bean that ended up being strong enough to inspire a great democratic experiment.


Nick Capodice: [00:25:21] That nobody is above the law.


Hannah McCarthy: [00:25:24] Not even Mother England.


Susan Herman: [00:25:26] It sounds like we might be ready for a declaration and maybe even the declaration.


Hannah McCarthy: [00:25:31] That's next time on Civics 101.


Hannah McCarthy: [00:25:42] One last word here on this remarkable document. If you're planning to read it I say go for the 13 54 version. It is pretty exciting to look at those words are those words in translation and see the first instance of the term due process in clause 39.


Nick Capodice: [00:25:59] Hannah, this may be a dumb thing to ask but do you really need to read Magna Carta?


Hannah McCarthy: [00:26:06] Well there really is a lot of stuff in there about knights and the price of corn and living in a forest and fishing on the river Medway. It's very much a document for Barens. The idea and the spirit are what matter most about Magna Carta. Right. So do you have to read it to understand the point of it. I say not necessarily. That said, Nick, the rest of the documents in this series the ones that are written on U.S. soil, you gotta read those. Do you agree?


Nick Capodice: [00:26:42] I agree.


Hannah McCarthy: [00:26:43] We are endeavoring to make them easier to understand and appreciate. But you still have to read them. You have to read them before you listen.


[00:26:50] After you listen read them read them read them. You think I made my point?


Nick Capodice: [00:26:54] I think you got your point -- point well taken.


Hannah McCarthy: [00:27:05] Civics 101 was produced today by me, McCarthy with Nick Capodice.


Nick Capodice: [00:27:08] Our staff includes Jackie Helbert, Ben Henry, Daniela Allee and Jack Rodolico.


[00:27:13] Erica Janik is our executive producer.


Hannah McCarthy: [00:27:15] Maureen McMurry is Extra Knight of the Most Ancient and Most Noble Order of Divine Halberget.


Nick Capodice: [00:27:21] Music in this episode is by Bad Snacks -- what a name -- Wayne Jones, Jahzzar and Blue Dot essions.


[00:27:27] There is a transcript of this episode as well as a bunch of other resources at Civics 101 podcast.


[00:27:33] Dot org. And while you're there check out extra credit on our Web site.


[00:27:37] It's our biweekly newsletter that Hanna and I cobbled together on a host of fun topics related to our episodes Civics 101 is a production of an each new Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

5 Things to Know About the Midterms



Episode Segments:



Midterm Edition: 5 Things to Know About the Midterms

This transcript was created using a combination of machine and human transcribing, so there may be some typos.


Nick Capodice: [00:00:04] In 1965. Opponents of President Lyndon Baines Johnson referred to him as King Lyndon the first.

Archival: [00:00:13] For in your time. We have the opportunity to move not only toward the rich society and the powerful society.

Nick Capodice: [00:00:21] His approval rating 70 percent.

Archival: [00:00:24] But upward to the great society.

Nick Capodice: [00:00:31] Since being sworn in as president after the assassination of JFK in 1963 Johnson had launched a set of programs called the Great Society to demand an end to poverty. And racial injustice.

[00:00:45] He signed the heart Sellar Immigration Act created Medicaid and Medicare.

Archival: [00:00:49] Integration of Martin Luther King receives his pen. A gift he said he would cherish.

Nick Capodice: [00:00:54] It was in this administration that protests led by Martin Luther King in DC and in Selma resulted in two pieces of the most important legislation of our country the Civil Rights Act of 1964 and the Voting Rights Act of 1965. All of this ball navigating our involvement in Vietnam.

Archival: [00:01:13] Main purpose of the operation was to clear the area of the Viet Cong.

Nick Capodice: [00:01:18] Democrats held 289 House seats and 68 Senate seats. Political minds declared the Republican Party officially dead. Andrew

Nick Capodice: [00:01:28] How can you unseat a King?

Archival: [00:01:33] It's like entering a gambling casino to walk into a grocery store in Prince's County.

Nick Capodice: [00:01:43] The Great Society was no match for the price of milk. In 1966 small protests in Baltimore and Denver caught the eye of the Republican National Committee which claimed Johnson's Great Society programs and America's involvement. Vietnam were to blame for rising grocery costs.

[00:02:00] Republican candidates for office latched onto the idea. They brought Giant grocery carts to campaign events. They printed out oversized price tags showcasing rising food costs. They pushed inflation hard. This was the stage for the 1966 midterm election.

Archival: [00:02:18] Big shot in the arm of the American Republican Party. Ronald Reagan as governor of California. Most of the polling station was from west to east showed a swing away from President Johnson's Democratic Party.

Hannah McCarthy: [00:02:34] So what happened?

Nick Capodice: [00:02:35] What happened? What happened and it was huge. One of the biggest losses to the Democratic Party in the history of elections. Republicans gained 47 House seats. Three Senate seats eight governorships 557 state legislature seats. Nixon got elected two years later. Newsweek wrote in the space of a single autumn day that 1000 day reign of Linden the first came to an end.

[00:03:02] The Emperor of American politics became just a president.

Hannah McCarthy: [00:03:06] That is wild.

Nick Capodice: [00:03:08] Crazy.

Nick Capodice: [00:03:09] It was in a midterm which nobody cares about. And not only that not only did Ronald Reagan get elected as governor of California six others Hanah seven people total who are involved in the 1966 midterms became president. Later.

[00:03:24] The Republican Party became decidedly not dead at all. In the wake of a midterm election.

Hannah McCarthy: [00:03:30] Get out.

Nick Capodice: [00:03:38] I'm Nick Capodice.

Hannah McCarthy: [00:03:38] And I'm Hannah McCarthy.

Nick Capodice: [00:03:39] And this is Civics 101 the podcast refresher course on the basics of how our democracy works. And today we're kicking off a five part series on midterm election.

Hannah McCarthy: [00:03:48] We're going to look at campaigning state and local government.

Nick Capodice: [00:03:51] The difference between the House and the Senate and what is on your ballot but before we get into any of today's episode is about finding the midterms and the five reasons why they matter to tell us what happens in a midterm. First we spoke with Cheryl Cook Kallio.

Cheryl Cook Kallio: [00:04:06] I'm Cheryl Cook. Kallio I'm a teacher. I taught government for 39 years.

[00:04:10] My claim to fame is that Sandra Day O'Connor held my hand.

Archival: [00:04:13] And he said Sandra I'd like to announce your appointment to the Supreme Court tomorrow.

Hannah McCarthy: [00:04:19] Sandra Day O'Connor as the first woman to hold a seat on the Supreme Court Sandra Day O'Connor.

Nick Capodice: [00:04:23] The very one.

Cheryl Cook Kallio: [00:04:24] Any national election that takes place without a presidential candidate is considered a midterm. Most people they're not so focused on midterm elections because they think the president is all important. And certainly our chief executive is important however we elect some extremely important positions during this period of time.

Nick Capodice: [00:04:44] And in all of these offices the term lengths can vary. So senators in WashingtonD.C. have a six year term. But some state senators can have an election every two years. That's what we have in New Hampshire. Yes but some states have a four year term and others have completely different terms. But I wanted to cut to the heart of midterm elections. So I asked this guy my name is Keith Hughes.

Keith Hughes: [00:05:05] I'm a social studies teacher. I also run a YouTube channel called Hip Hughes history.

Nick Capodice: [00:05:09] He's made over 500 educational videos aboutU.S. and world history. I asked him to tell me the one thing he wished Americans knew about the midterm elections and he gave me five.

[00:05:20] Are you ready for a listicle?

Hannah McCarthy: [00:05:21] I am always ready for a listicle.

Nick Capodice: [00:05:23] Number one.

Keith Hughes: [00:05:24] So number one the president is going to take it on the chin. Well at least most of the time. Midterm elections many times are called a referendum on the president and what that means is people are going to the polls not so much just voting on local issues which they do a lot but they're really kind of judging in evaluating the president and deciding if they want to give them full rein to do what they're doing or if they think that checks and balances might be in order terrain that President in a little bit.

Nick Capodice: [00:05:53] So if you love the president. Love love love what he's doing. This is a thumbs up.

[00:05:57] Or if you're super frustrated with the president even though he's not on the ballot you can take your frustrations out on his party.

Dan Cassino: [00:06:04] So the midterm elections wind up being important because what we get in the mater is as it's called surge and decline this is Dan Cassino Abdel Cassino an associate professor of political science at Fairleigh Dickinson University. No political science spent a lot of time worrying about Sturgeon decline but the basic principles this which ever party did better in the presidential election does worse in the midterm election. Why is that. Why is that. If your party does really well in the presidential election it's because you turned out a lot of voters who otherwise wouldn't vote. These are of marginal voters may stay home. Well guess what. Two years later they're gonna stay home.

Keith Hughes: [00:06:41] In the past modern era at least 50 or 60 years the president in power has always lost seats in the midterm election except for 1998. Bill Clinton was lucky enough to have a really good economy and George Bush in 2002 and I'm thinking 9/11 might have had something to do with that. But every other election whether it be Barack Obama or it be Bush or Nixon or we can go way back to Harry Truman. Usually Americans that are going to turn out want to see a constitutional republic that works. And usually that means that the president who is in power. Like I said before it's going to take it on the chin.

Archival: [00:07:16] How bad a night was this for Democrats. It was really bad. I think it was. Would you take a look at the election results in 2010 and this year. This was a wave a Republican wave that hit and hit that Democrats.

Hannah McCarthy: [00:07:29] So the surge is when everyone comes out to vote in the presidential election and then the decline is what happens two years later when lots of those voters just stay home.

Keith Hughes: [00:07:42] So number two is really the cyclical cycles that occur in the House and the Senate and there really isn't a cyclical cycle in the house because every single House member is going to be up for re-election. That's right. All 435 members of the House have to face the music. But in the Senate it's one third of the Senate.

Dan Cassino: [00:08:01] So the Senate is divided into three classes actually called in class a class B and Class C in each of those classes is up for election every two years so every two years one third of the Senate is up for re-election. Again this is Dan casino. Now the reason that matters is because no matter how big a wave you get in a midterm election or even the present election it can't affect more than one third of the Senate. This creates a temporal division of power where in the Senate one third of it is governed by what happened two years ago. One third both happened four years ago.

[00:08:34] One third about what happened six years ago.

Archival: [00:08:36] Meanwhile domestic politics also makes headlines. The 1966 election chooses governors senators and congressmen and serves as a significant preview of the 68 presidential election.

Dan Cassino: [00:08:46] So in 2016 in the Senate for instance you are still seeing a bunch of people who've been elected in the Tea Party wave of 2010. Now that wave wasn't really going very much anymore in 2016 but it didn't matter because they were still in there. You're still sharing power across all those years. And the idea is to kind of average things out where the house is reflecting all of these the minute whims of the people they want and a Masonic party. They want the Tea Party. Well the Senate is going to be the insulation between those whims and the actual power of government.

Hannah McCarthy: [00:09:19] So the Senate by design has this long institutional memory and the House is more reactive.

Nick Capodice: [00:09:25] That's right. But the staggered Senate means every election is different when it comes to who even has a chance a chance.

Keith Hughes: [00:09:31] So depending on which states are up for grabs you can see a year where the Democrats are very safe or the Republicans are very safe. This cycle happens to be where there are more Democrats in red states that have to face the music. So it's going to be a little bit more difficult for the Democrats not only to hold their seats but to flip seats as well. So we see very red states states like Montana where you have Democrats that have to face Trump voters they have to face red voters and hold those seats. So not only if the Democrats gained power in the House or the Senate are they going to have that ability to investigate the president. But it also means they're going to be able to put the kibosh on the president's agenda. So in terms of passing legislation that's not going to be so easy for Donald Trump anymore if the Democrats take over either branch because obviously you have to pass legislation out of the House and the Senate. So even taking one branch totally puts the brakes on the Trump agenda legislatively at least.

Hannah McCarthy: [00:10:27] OK so this is like when Obama lost the house in the 2010 midterms right.

Nick Capodice: [00:10:32] Yes. So Obamacare went through before that election but it never would have made it out of the House if it had happened after the election.

[00:10:44] Number three congressional redistricting aka gerrymandering.

Dan Cassino: [00:10:51] Now we've probably heard a lot about gerrymandering in the House of Representatives. That's where state legislatures draw districts to help one party or another. So they might draw districts to make sure that Republicans are always going to one seat or the Democrats win one seat. And both parties do this although in recent years generally Republicans have done a better job of it than Democrats have.

Archival: [00:11:09] Because the politicians are only one thing it does is to stay in power.

[00:11:14] To stay in power no matter what. It doesn't matter if you're a Democrat or a Republican.

Dan Cassino: [00:11:19] Now what that means is the House of Representatives I am largely representing a district that already likes my party. So I'm speaking to here from Montclair New Jersey in Montclair New Jersey as a whole is a city that is slightly to the left of Trotzky.

[00:11:39] That means if I'm the representative from Montclair I run as far left as I can and that'll get me elected. If I go to towns over I'm going to be in a town that had the birth of the Tea Party. And guess what.

[00:11:50] I'm going to run as far right as I can. I'm going to win re-election. House of Representatives districts tend to lead to polarization with members of Congress trying to go as far left as far right as they can get.

Nick Capodice: [00:12:01] Just a quick clarification. Congressional redistricting and gerrymandering aren't interchangeable. Gerrymandering is when you do congressional redistricting to favor your party.

Hannah McCarthy: [00:12:12] OK so what does this have to do with midterm elections.

Nick Capodice: [00:12:15] Well statistically older whiter more conservative people vote in midterms and that means these districts can be drawn to favor conservatives and that won't change for another 10 years.

Keith Hughes: [00:12:26] Most political scientists put it at about 40 seats that are truly up for grabs with all of the rest if you can think of that 435 seats. There's only 40 really competitive districts which means the other ones are really really red are really really blue. Just to put it in perspective in the last election it was pretty split in terms of the House the House of Representatives we saw if you took the total vote for House members it was about 50 percent 50 percent split between Democrats and Republicans. But when you break that 50 50 percent down and you look at what happened in terms of the outcome of the vote you know the Republicans have more of a 40 seat advantage in the house.

Nick Capodice: [00:13:06] I have to restate this Ana because I could not believe it when I heard it the first time in 2016. Even though almost the exact same number of votes were cast for Democratic Representatives and Republican Representatives the Republicans won 241 House seats and the Democrats won 194.

Hannah McCarthy: [00:13:26] So when are those districts actually drawn.

Nick Capodice: [00:13:29] That happens every 10 years after the census is done. So this election coming up 2018 midterms is huge because some of the people who will go in will determine the next drawing of congressional districts. Oh man that's big big big big but let's move on to number four.

Keith Hughes: [00:13:44] Number four midterms matter because you really are pressing the button for new ideas. If the Democrats are able to flip the house or flip the Senate not only does it give a chance for the party to redefine itself to have new leaders to have fresh faces to try to put that agenda in front of the American people and maybe put you know the president under some pressure in terms of is he going to support ideas that might be popular with most Americans because that legislation is now coming out of the House and coming out of the Senate. But in the long term it really can help a party rejuvenate itself. You know come out new start over again.

Hannah McCarthy: [00:14:19] The guy who wrote the book on midterms AndyE. Bush told me about this. He said that if we look at huge areas of new policy in American history say the New Deal or LBJ Great Society. They were bracketed by midterm elections not presidential elections.

Nick Capodice: [00:14:36] Yeah it's like midterms are a test kitchen for politics and we saved the best for last. Here comes number five.

Keith Hughes: [00:14:41] And finally number five why midterm is really important is because voting counts voting really matters and when you look at statistically the type of turnout that you get in midterm elections it's really really sad. My fellow Americans you know in a national election you might see 55 65 percent of registered voters coming out. But in a midterm election it could be as low as 25 30 percent.

Archival: [00:15:05] Sometimes your instincts tell you when a man is right.

[00:15:08] For the job.

Nick Capodice: [00:15:13] So there it is. Keith uses top 5 1 President almost always take the hit to the Senate staggered election cycle is crucial. Three congressional redistricting aka gerrymandering is going to happen after the midterms for midterms are proving ground for new ideas and 5 your vote really counts in a midterm.

Hannah McCarthy: [00:15:35] I gotta say Nick I've really learned a lot in this episode.

Nick Capodice: [00:15:37] Me too. So before we say goodbye we're going to end this episode with a snapshot of the historic midterm broken down by Brady Carlson former NH PR reporter and current afternoon host at Wisconsin Public Radio as well as the author of Dead Presidents.

Hannah McCarthy: [00:15:52] Brady Carlson.

Nick Capodice: [00:15:54] You know him, right?

Hannah McCarthy: [00:15:54] I know Brady.

Nick Capodice: [00:15:55] He's going to tell us about a midterm from the past.

Brady Carlson: [00:15:58] Sometimes a midterm election can turn an era of good feelings. Into an era of hard feelings.

[00:16:11] Today's midterm is the 18 26 midterm election. And to understand the election of 1826 and 1827 they were split up back then. You first have to understand how weird the 20s are in American political history. This is one of the few times where the country doesn't have major political parties that oppose each other. There had been two main political parties the Federalists and the Democratic Republicans but the federalists collapsed and so the Democratic Republicans were kind of the only game in town by the 18 20 presidential election. James Monroe the incumbent ran. Basically unopposed for re-election and because there's no organized opposition to his administration this period becomes known as the era of good feelings.

[00:17:00] The feelings were actually a little more mixed than that especially when 1824 rolled around because there were a bunch of people angling to be Monroes successor at that time. The typical frontrunner to be the next president was the previous president secretary of state. And at that time the secretary of state was a guy called John Quincy Adams of Massachusetts. But there was also kind of a wild card thrown into the mix.

[00:17:25] Jackson of Tennessee had even gotten a national MSJ.

[00:17:30] He was a military hero in the War of 1812. He was enormously popular and he had thrown his hat into the ring. He wasn't going to wait around to become secretary of state first.

[00:17:39] There's only one thing that can keep you from being pretty and that you wish that the election happens.

[00:17:45] Jackson wins the most popular votes and the most electoral votes but not a majority of either. And under the Constitution when there's no majority in the Electoral College the House of Representatives chooses the presidents and in 1824 they chose the second place finisher John Quincy Adams determined Bacchis not to have a wedding present. So obviously the Jackson people are furious. They finished first and didn't win the election so they essentially say this is a rigged system. The Adams people had conspired with the insiders in the House of Representatives to take away the election not only from Andrew Jackson but to their minds. The will of the American people. So the Jackson people respond to this by organizing their own political party. They called it the Democratic Party and their mission was to basically wage a four year election campaign against President Adams and the people who would put him in office. So they specifically targeted those lawmakers from the projects Jackson districts who had voted to elect Adams. They called it a blacklist. Now Adams was still rooted in the old model that public officials were public officials not politicians. They shouldn't carry the banner of a party. He even once told Congress that they needed to pass some of his agenda even if it was unpopular with the people he told them and this is a quote Don't be quote palsied by the will of our constituents. Now that's not the kind of thing that wins you a lot of public support. So the Jackson forces took this opportunity and they started using something close to modern election techniques they were going district by district. They were really playing up the personality of their candidate. Jack's life. Was. Nuts.

[00:19:29] And when the mid-term elections were done they had majorities in both houses of Congress and they use those majorities to block the Adams administration and its priorities for the next two years until the 1828 presidential election rolled around which Andrew Jackson won in an outright majority. This was an early example of what's now known as the mid-term decline where a new president comes in and two years later voters move toward the opposition in Congress to serve as a kind of check on that administration. This is something that's happened not in every presidency but in enough that it's become an almost expectation when a new president comes into office.

[00:20:14] That is it for Civics 101 today and remember this is just the first in a five part series on the midterm elections. Stick around for number two which will be on state and local elections.

[00:20:26] Today's episode was produced by me, Nick Capodice and Hannah McCarthy and Jackie Helbert. Our staff includes Ben Henry and Justine Paradice Jimmy Gutierrez and Taylor Quimby Erika Jandek is our executive producer Maureen McMurry is the one who put the hat on the snowman music in this episode by Diamond Ortiz Rondo brothers Blue Dot sessions Yang logos dead boys Ethan Maxwell parvus decree Samuel Woodworth silent partner Franz Schubert the green orbs and Keen's as Merera. If you want to know more about civics 101 or you want to submit a civics question of your own. You can do that at Civics 101 podcast. Dot org Civics 101 is a production ofM.H. PR. New Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Midterm Edition: Why Vote?


In this episode, you'll hear what voting actually does for you and your demographic. Plus, how to make sure your voice is heard, whether you're eligible to vote or not. Our experts this time around are Cheryl Cook-Kallio, Edgar Saldivar and Peter Levine.   

Episode Segments





Civics 101

Episode: Why Vote?



Hannah McCarthy: [00:00:02] We've spent a lot of time in this series explaining mid-term elections why they happen how they work. Who runs in them what shows up on the ballot. And I feel like we got there you know midterms Crash Course accomplish.


Nick Capodice: [00:00:18] Why do I feel there's a but in here.


Hannah McCarthy: [00:00:21] But our goal. I mean it's the title of the first episode. Our goal was to convince people that midterms matter. You know full disclosure we definitely have an agenda. We were trying to prove a point.


Nick Capodice: [00:00:34] Yes that's true. But midterms do matter. Of course they matter. They can change the course of politics they change the law.


Hannah McCarthy: [00:00:42] But I'm stuck on that final step. Participation showing up to vote because midterms are going to happen whether people turn out for them or not.


Nick Capodice: [00:00:51] That is actually my least favorite excuse for not voting.


Hannah McCarthy: [00:00:54] OK. Hear me out. We started with the goal of proving the power right. The worth of this election. And I think we partially felt we needed to do that because a lot of people don't care and we know that because we can look at voter turnout numbers and see that people just don't show up for the midterms the way they do for presidential elections.


Nick Capodice: [00:01:16] This is understandable when you're voting for the leader of the free world the largest office in our country it's bound to bring people out voting for the president is huge and it's in an obvious way and that's not really the case with smaller local offices that are on your ballot in a midterm.


Hannah McCarthy: [00:01:32] And that fact isn't going away right no matter how you Gussy them up. The midterms are missing that one crucial thing.


Nick Capodice: [00:01:38] Hannah if at this stage you're trying to convince me that midterm elections are not a big deal. I'm not only going to lose it but I got Dan Cassino on Speeddial right now.


Hannah McCarthy: [00:01:50] OK I would not dare try to do that to you. Especially not at this point. But all I'm saying is I think we need more more what more of a reason to turn up and to vote on Election Day.


Nick Capodice: [00:02:03] You got something?


Hannah McCarthy: [00:02:05] I think I do. Which is good because this is Civics 101. The podcast refresher course on the basics of how our democracy works. I'm Hannah McCarthy.


Nick Capodice: [00:02:18] I'm Nick Capodice.


Hannah McCarthy: [00:02:19] and today on Civics 101 we're going to turn the focus on you dear listener because it isn't the president who makes or breaks an election it's you your five minutes in the voting booth are more than just an exercise in civil participation. Choosing to vote is like saying Hey look over here. You better listen to me because I have got your job in my hands.


Nick Capodice: [00:02:40] I hear you. Hannah and I don't need convincing. But if we're going to go there with voting then I have to say there are plenty of people who do show up to vote every year and still feel like legislators ignore them.


Hannah McCarthy: [00:02:51] You are absolutely right. That was the case for a lot of voters and that's where I want to start. With the frustrating truth about making your voice heard speaking up is not just about election day. It's a lot of work and it needs to be happening all the time.


Cheryl Cook-Kallio: [00:03:10] One of the problems I think with voting is that people think it's a passive action that you do in every two years you do with every four years when in fact it's what you do between elections that actually energize the constituency during a campaign and during an election.


Hannah McCarthy: [00:03:27] That is Cheryl Cook Kallio everybody high school teacher and former member of the California Assembly.


Cheryl Cook-Kallio: [00:03:32] And you know you'll hear people say well I didn't know this was going to happen or I didn't know this is going to be on the ballot. A lot of this is is prepped for years in advance and so voting is extremely important. But paying attention between voting and applying your civic knowledge between voting is equally as important to get the result. And to me a good result is one that represents a broad constituency.


Nick Capodice: [00:03:58] But what does applying your civic knowledge actually look like? We always hear you know you got to get involved but you know give me the instruction manual.


Hannah McCarthy: [00:04:06] It means a lot of things but why don't we start with the obvious you know knowing what you're voting for because let's be honest we've all likely encountered an office on the ballot on Election Day that we didn't even know was up for election or maybe we didn't even know what that office was.


Cheryl Cook-Kallio: [00:04:23] It makes me sick because I've seen that so many times and literally or worse yet who's running right who's running.


Hannah McCarthy: [00:04:32] All right. We hear stuff along these lines pretty often right. You know stay informed do the research don't complain if you don't vote and maybe don't complain if you vote without doing your homework first. And that advice can start to turn into white noise. But Cheryl cares about this and to be honest so do I. Because you are definitely, not maybe Nick, definitely electing people and voting on ballot measures that will change your life.


Nick Capodice: [00:04:59] Let me jump in here because look I know it's not super easy to figure out who and what you're voting for. And I guess is this what you mean by the work? I've pored over so many ballots not just from our state New Hampshire but from every state in the union. They're all completely different. They all have totally different rules and it's frankly overwhelming.


Hannah McCarthy: [00:05:16] It is overwhelming and frustrating and it's my job to research this stuff. But you know passivity is easier or soft focus is easier.


Hannah McCarthy: [00:05:28] And the thing is I don't have to know the world will go on rolling without my knowing exactly who I just helped to elect sheriff. But I'd rather just know who it is. I'm voting for. That way I don't wonder if I helped elect somebody who maybe goes against my morals and luckily we've got thousands of journalists and analysts around the country clamoring to provide us with that information.


Cheryl Cook-Kallio: [00:05:52] I think that people need to be informed and in order to be informed they have to look at a variety of sources. If the only place that you're getting your information is off of Facebook or Fox News or MSNBC you're only getting half of the story. When I see a story come up and I look at the source of the story. I then physically look for other articles that may be done from a different perspective. It takes work and part of the issue with living in a democracy is you have to be constantly vigilant.


Nick Capodice: [00:06:27] I guess if you want the government by and for the people to actually reflect what the people want then the people have to know how to ask for what they want how to establish it. It's just it's such a huge task. I don't feel like any of us can show up on election day knowing everything.


Hannah McCarthy: [00:06:44] I think that's completely true. And as Cheryl sees it you don't have to be an expert in your options.


Cheryl Cook-Kallio: [00:06:51] It's important to recognize that you can't know everything. And so for me if I'm in an area that I'm unfamiliar with I will call a person that I think is an expert or here's the one thing that people don't do enough and that is call the office of their elected official. If I'm really confused about something and I know the bill was authored in a particular office or I know somebody who's opposed to that in a particular office I will call up and ask for the information. That's what their job is is to give you that information.


Hannah McCarthy: [00:07:26] OK. That's the kind of work you couldn't do before an election in the month leading up to it. Right. That's Election Day centric work. But I want to go back to this idea that Cheryl has about civic knowledge because there's the kind of passivity that means not showing up to vote. And then there's the kind of passivity of not knowing who or what you're voting for before you do show up. But to Cheryl civic engagement also has to take place in the off season like being a baseball fan who pays attention to the draft and then watches spring training.


Nick Capodice: [00:07:58] Except these players are in charge of making law. So the stakes are a little higher.


Hannah McCarthy: [00:08:02] Slightly higher. Yeah and the actual law making the job that we essentially hire our legislature to do that is what is going on in the off season. That's what's going on between elections. So the most important part of engaging with your rep or your senator is not the act of voting. Aside from the issue of actually getting to the polls and being sure you're allowed to vote and we will get to that later. The impact of Election Day itself is largely psychological. But the law making that comes after that. That is what makes your life better or worse. That is what keeps your schools operating and your streets safe.


Cheryl Cook-Kallio: [00:08:45] And it's about approaching democracy what's important. What do you need to do before an election. You know what we're talking about is exactly what illustrates the importance of paying attention between elections that it really isn't about just sitting around and twiddling your thumbs. I had a student had once said to me you know I don't care about those government stuff which of course caused me to have you know hyperventilating and he said you know when it's never going to make a difference to me. And I sat there sat down and I said you know right now probably nothing I said but the minute that you want to walk your daughter to school and you recognize that there needs to be a stop sign at the corner. It will become very important to you. And he looked at me and said You're right.


Hannah McCarthy: [00:09:34] We all turn out for the presidential elections and any kind of trickle out for the midterm elections. And then you know the rest of the time how many of us show up when the work is actually being done. I think there's this sense that our metaphorical microphone only appears in the voting booth and then that the rest of the time we have to sit around and watch things happening to us or at us but we're allowed to comment on laws before they happen we're allowed to ask for a stop sign.


Hannah McCarthy: [00:10:02] And the people who can make that stop sign happen and can make you or your kids save are often the very people up for election or re-election during the midterms.


Nick Capodice: [00:10:12] Something that's really easy for me to forget is that you can go online and look up your senator or your state rep governor's number and you could just give them a call. You can ask them questions about what's going on in your city. You can tell them that you need that stop sign at the end of your road or tell them you're opposed to a bill or let them know about a problem at your school.


Cheryl Cook-Kallio: [00:10:32] Decisions are made by people who show up and you only show up on Election Day. Then you're not doing your due diligence and you're likely to be somewhat disconcerted over the outcome at least in some areas.


Nick Capodice: [00:10:46] One of the only obstacles I can foresee for this is it's a matter of numbers. So what if I'm the only one who wants that stop sign or what if my state representative or legislature just doesn't seem to care.


Hannah McCarthy: [00:10:57] I mean that's definitely something that happens but it all comes back to voting. If you turn out to the polls and people who share your beliefs turn out alongside you then you've established that broad constituency that Cheryl was talking about earlier.


Hannah McCarthy: [00:11:15] For example let's say youre a 47 year old Wisconsinite who loves the color green and loves swing sets and believes in unionized playground companies. You want the playground Union to build a green swing set in every city in the state.


Nick Capodice: [00:11:30] I feel very passionately about this.


Hannah McCarthy: [00:11:31] You do and a lot of people around your age feel the exact same way.


Nick Capodice: [00:11:35] OK so we are going to be golden right? If if we all want these union built Kelly Green swings sets we're going to get them right?


Hannah McCarthy: [00:11:43] Ah but let's say only a handful of people in your swing set devoted demographic actually vote.


Nick Capodice: [00:11:49] OK that's not great.


Hannah McCarthy: [00:11:50] No it's not great. Because the thing is it doesn't really matter if you all feverishly desire to see union belt green swing sets dotting the Wisconsin landscape if you don't vote. Your legislators pay attention to those who show up to the polls. If your demographic does not why should they pay attention to what you want in the meantime?


Nick Capodice: [00:12:10] That's pretty dark.


Hannah McCarthy: [00:12:11] That's politics my friend.


Cheryl Cook-Kallio: [00:12:13] Right now if young people would vote if we got the vast majority of students that are 18 years old voting in California they could change how we charge for college education. You would all of a sudden have a group of legislators that would be paying very close attention to this demographic. It's because they don't vote some of these things are passed.


Nick Capodice: [00:12:40] That's crazy. I mean we don't usually talk about legislation in terms of voter turnout. The idea is that your person either wins or loses and they go about their business of working for you or not but it sounds like. And tell me if I've got this right. If your demographic turns out in full force then your demographic's going to get more attention than other demographics even if you both voted for the same person.


Hannah McCarthy: [00:13:03] Exactly. It's just like Cheryl says that people who candidates pay attention to are the people who vote in large numbers. So white people vote more than people of color. Older people vote more than younger people. Rich people vote more than poor people.


Nick Capodice: [00:13:19] And by the way as we've mentioned in a couple different episodes whiter older richer tends to also describe the demographic of the people we actually get to vote for. But on the subject of who is turning out to vote our country by and large makes it way easier for that white wealthy older demographic to vote.


Hannah McCarthy: [00:13:40] Which brings me to my next point the point Cheryl made about college aged voters not turning out. You cannot boil that down to young people being lazy or something.


Cheryl Cook-Kallio: [00:13:50] So you know you're in your parents home you're going off to college you change residences. How many times while you're in college four years are in training or wherever else you go to become an adult. You forget to register and then you can't decide are you going to vote in the city that you're going to college in. Are you going to vote in the town that you came from. You have to make that decision. In some state they make it very difficult for people to vote by mail. So if you are going to college in you know North Carolina specifically had a rule about this or a law about this not too long ago that they didn't want students voting on the college cities that they live in but you're not going to drive home to vote on a Tuesday. So you are basically taking away their right to vote unless you allowed them to vote absentee. I mean they've changed that law now but it is a way to suppress voter participation by making it difficult to register and making it difficult to change your registration.


Hannah McCarthy: [00:14:52] Now I do want to say the people who work on tightening voter registration access say they're doing it to prevent voter fraud. But the defacto result of this is that there are laws all over the country that make it tricky for college kids to vote for people of color to vote for lower income people to vote for trans people to vote.


Edgar Saldivar: [00:15:11] You know the voter ID requirements can be very burdensome to poor individuals to people of color to the elderly who don't often have the ability to obtain the records or pay the fees the state requires to have photo IDs for example.


Hannah McCarthy: [00:15:28] This is Edgar Saldivar he's a senior staff attorney at the ACLU in Texas and Edgar makes clear that although these laws do not explicitly block minorities from voting they do in some cases make it more difficult.


Edgar Saldivar: [00:15:43] There are numerous ways that state legislatures have made it burdensome difficult or sometimes impossible to cast a ballot for individuals who are eligible to vote. And rather than extending access to the ballot what we've seen as a trend to make voting much harder rather than easier.


Hannah McCarthy: [00:16:11] And it's not just registration that poses a problem. A polling place can be moved at the last minute or maybe you show up and you find your name has been purged from the voter roll.


Edgar Saldivar: [00:16:21] Right so a voter roll essentially is a listing all the persons that are registered in a particular precinct.


Hannah McCarthy: [00:16:29] Now Edgar says that there are a lot of ways a person's name might be purged from the rolls in a city or state. Maybe you've moved or you've been incarcerated or become mentally incapacitated. All of these he says are lawful reasons to purge someone from the voter rolls.


Nick Capodice: [00:16:44] However I've read tons of articles specifically in the last 10 years about people who are definitely eligible to vote and they show up and they're told nope sorry you're not on the list.


Hannah McCarthy: [00:16:54] Yeah that does happen.


Edgar Saldivar: [00:16:55] Some states have taken a sort of overly aggressive efforts to purge voters. Oftentimes voters who aren't eligible to vote whether may be sort of a kind of administrative mistake that caused it, you know they go vote and they realize that they are not on the voter rolls.


Nick Capodice: [00:17:14] So it sounds like you've got to have your rights down pat before you even go to your voting station.


Hannah McCarthy: [00:17:17] That's exactly it. Edgar says that if you are eligible to vote meaning you're a U.S. citizen. You'll be 18 on the day of the election. You're a resident of the state county and district where you are casting your ballot and you are not in prison or on parole for a felony conviction. Then it is your constitutional right to vote.


Nick Capodice: [00:17:38] But what if your attempt is thwarted. What if you know that you're eligible to vote you've waited in line for a few hours. You show up and they say Buzz off buddy you're not on the voter rolls.


Hannah McCarthy: [00:17:48] OK. First and foremost what you have to do is ask for a provisional ballot and a receipt. If you ask for this provisional ballot it is required by law that they give it to you. And then after the fact they will assess on a case by case basis whether or not your vote is valid.


Hannah McCarthy: [00:18:06] And then if you have any other problems because things do crop up you can call this number. It's 8 6 6 our vote so that's 8 6 6 6 8 7 8 6 8 3. They're are a nonpartisan election protection coalition. They're national. They'll know what to do.


Hannah McCarthy: [00:18:27] But let me just give you a specific example. Right. So a lot of trans rights groups are trying to look out for people who might be denied at the polls. The ACLU of New Hampshire for instance has put together a fact sheet explaining that yes if you have changed your name you need to reregister under that name.


Hannah McCarthy: [00:18:45] However if for example your I.D. appears to show someone of a different gender you cannot be denied the right to vote.


Nick Capodice: [00:18:51] All right come prepared maybe even write these things down before you go. Just to be on the safe side. But still I can totally see myself being intimidated by the prospect of being denied a ballot even if I know my rights.


Hannah McCarthy: [00:19:04] Yeah in a case like that it can be worth a quick Internet search to figure out if there's an election day carpool program near you that can offer support. in Tennessee for example. There's even a ride share app for the LGBTQ community in Chattanooga that helps people get to the polls. And you know what Nick. If all else fails you can always call your attorney general and verify your right to vote and you can do that right at the polling place.


Nick Capodice: [00:19:30] Can I check in for a minute here. Sure. So we started this episode with you saying you're going to give people just one more reason to turn out on Election Day for midterms. And you've given us a couple and some how tos.


Hannah McCarthy: [00:19:42] OK good. That is what I was going for.


Nick Capodice: [00:19:43] But I think there's one big thing missing actually. The people who can't vote yet. Young people. People who are going to be able to vote in the future or just don't have that constitutional right yet in their lives. So many of the laws. So many of the laws that we make in this country have to do with those people but they don't get a say.


Hannah McCarthy: [00:20:10] Or do they.


Nick Capodice: [00:20:12] Do they? Is this a trick.


Hannah McCarthy: [00:20:14] I mean I say they do. I say young people are instrumental to effecting change.


Nick Capodice: [00:20:19] Go on.


Hannah McCarthy: [00:20:20] OK. Point number one and please bear with me on this one. Young people are the future.


Nick Capodice: [00:20:27] Oh Hannah is everybody rolling their eyes out there?


Hannah McCarthy: [00:20:30] But it's true.


Peter Levine: [00:20:32] So I think it's important for young people to realize that they have a lot of power and they're actually exercising it.


Hannah McCarthy: [00:20:37] This is Peter Levine. He's the academic dean at the Tufts University Tisch College of civic life.


Peter Levine: [00:20:43] They're a very big Voting Bloc. They are gonna run the country. Whatever happens in. 15 20 25 years. So the skills that they learn now. For running the country are really important. Whatever happens the way that they vote does determine the outcome of elections even if they don't vote at the numbers they should. So they do swing elections. So they are actually exercising power so I don't buy the hype that they're just disengaged. Some of them are but some of them aren't.


Nick Capodice: [00:21:08] But still he's talking about the young vote. What about the young nonvote.


Hannah McCarthy: [00:21:12] So Peter has been doing research on civic engagement of people from kindergarten through senior year of high school and he's been doing it for over a decade now. So he knows that first of all if you learn about voting when you're young you can be a good voter by the time you actually get there.


Peter Levine: [00:21:28] So the pattern in America is that people gradually become voters. Each decade until people get into their 80s. They vote at a higher rate and it seems that people sort of overcome the barriers they learn how to do it. They tune into some issues and get an idea who they're going to vote for and when they do that they're much more likely to vote against it. You could say voting is habit forming. And for the very youngest the habit has only formed for about one in five in the midterm elections.


Nick Capodice: [00:21:54] So get in the habit of being a voter before you're actually a voter.


Hannah McCarthy: [00:21:58] Yeah but that isn't it. You know you can actually do something long before you're a member of the electorate. For one thing. What is more compelling more sympathetic than a young person demanding say justice or support? And What is more disappointing than a legislator who ignores that young person's call. Not to get all cynical about this but you know it's good PR to pay attention to young people.


Peter Levine: [00:22:25] So even if you don't have the vote you can work in other domains. But the other thing is you can influence older people have the vote. So. Certainly the Parkland students are demonstrating that you can have a big influence on voters even if you're too young to vote yourself.


Nick Capodice: [00:22:39] And on of these ideas that Cheryl Cook-Kallio talked about that civic engagement is about what happens between the elections, like swaying legislators is less about voting day than it is about how you get at them when things are in session. Is there a way for underage people to get their say?


Hannah McCarthy: [00:22:55] This is one major thing that Peter kept coming back to civics is not limited to government and exercising your voice isn't limited to being of voter age.


Peter Levine: [00:23:04] So you can change the world in lots of ways and that that opens up a whole range of things you can do. One thing is there are in other institutions and communities apart from the government the ones that the government runs they're in the school or any neighborhood.


Peter Levine: [00:23:16] They might be in a religious location they're in a family. And all of those institutions can be changed so you can if you can't change the law through voting you might be able to change your school's policies through talking to the Administration at the schools.


Hannah McCarthy: [00:23:34] So those things that are quite a law like let's say you're suspended for something that you think is unjust. You can go to the mattresses over something like that. You can disagree with policy and you can make people listen to you about it long before you get to actually vote for anything.


Nick Capodice: [00:23:54] And you can work for politicians too. You can volunteer or you can show up at rallies offer feedback like Bakari Sellers said eat cold pizza in a church basement. You can make it so by the time you might have to deal with a challenge to your right to vote you know your rights better than anybody because you've been preparing for this your whole life.


Hannah McCarthy: [00:24:12] I mean my big takeaway from all of this is that the lack of voter turnout is this kind of self-fulfilling prophecy. They say young people don't vote and so young people don't get attention from legislators and so they feel disenfranchised and that literally disenfranchises them. They then don't vote. The same goes for any group of people who feel like they're on the outs.


Nick Capodice: [00:24:35] So I guess the best medicine is to prove those numbers wrong.


Hannah McCarthy: [00:24:39] Yeah I couldn't agree more. Per usual. We're going to end this episode on the story of an historic midterm. Nick do you have one for us?


Nick Capodice: [00:24:49] I sure do.


Hannah McCarthy: [00:24:50] All right.


Nick Capodice: [00:24:51] This one. Go vote dammit.






Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Midterm Edition: Propositions (aka Ballot Measures)


Today's episode features our eminently quotable teacher and former California Assemblymember Cheryl Cook-Kallio, political correspondent at KQED Guy Marzorati, and frequent initiative proposer Tim Eyman. Cameo by Dan Cassino.



 Civics 101 is a production of the Corporation for Public Broadcasting.

Midterm Edition: PROPOSITIONS

Nick Capodice: [00:00:01] If you're from the great state of Idaho you might have heard this.

[00:00:04] It's not just saving our tradition of horse racing. Proposition 1 is about Idaho job creation classroom funding real accountability and the Idaho sponsoring Prop 1 are donating 100 percent of net profits from their horseracing operations to a new charitable foundation.

[00:00:21] I work with horses all my life. Supporters of Prop 1 are running deceptive ads. Prop Wong is an unlimited expansion of gambling statewide. I know the people behind Prop 1 and it made a lot of promises to schools and the racing community. But they take 18 times more money. Than schools get.

Nick Capodice: [00:00:39] Hey Hannah

Hannah McCarthy: [00:00:42] Yes.

Nick Capodice: [00:00:43] Pop quiz hotshot.

Hannah McCarthy: [00:00:44] Okay.

Nick Capodice: [00:00:45] Yes or no on Prop 1.

Hannah McCarthy: [00:00:50] I don't know what Prop 1 is and I need more information if I'm gonna say.

Nick Capodice: [00:00:55] Who benefits, who benefits from Prop 1.

Hannah McCarthy: [00:00:58] Schools, right?

Nick Capodice: [00:01:04] 4h? I cannot explain to you what Prop 1 is. I'm Nick Capodice.

Hannah McCarthy: [00:01:10] And I'm Hannah McCarthy.

Nick Capodice: [00:01:11] This is Civics 101 the podcast refresher course on the basics of how our whole democracy works. So today we're going to be talking about propositions. Ballot measures. These are initiatives referendums and recall.

Hannah McCarthy: [00:01:25] So when you say propositions what are you talking about.

Nick Capodice: [00:01:30] Propositions is an umbrella term under which initiative referendum and recall fall. To be clear today we're not talking about legislatively referred constitutional amendments which all the states except for Delaware have.

Hannah McCarthy: [00:01:46] Hold up, what is up with Delaware.

Nick Capodice: [00:01:47] I don't know actually we're going have to put that in our state anomaly episode along with Nebraska's single house legislature.

Hannah McCarthy: [00:01:53] And our 400 seat House of Representatives.

Nick Capodice: [00:01:55] Yeah.

Hannah McCarthy: [00:01:56] Did I sound a little drunk when I said that/

Nick Capodice: [00:01:57] No it sounded perfect. First off ballot initiatives they only happen in 24 states. And when I told our midterm guru Dan Cassino from Fairleigh Dickinson University that I thought it was funny that New Hampshire didn't have initiatives. He said that.

Dan Cassino: [00:02:11] No it's about when your state constitution is written. With your state constitution written between about 1880 and 1915 you're going to have initiative referendum recall all that, if it wasn't written or wasn't revised during that period you're not going to have it.

Nick Capodice: [00:02:25] This was during the height of the Progressive Era when progressives were arguing that corporations monopolies and trusts were corrupting state legislatures and there was no way for the citizens voice to be heard. Ballot initiative gives them that voice. So many of you out there you're not going to see props on your ballot on Election Day. So for you this episode is going to make you wish you had them, or grateful that you don't. If you are from one of those 24 states. Chances are they are a massive part of your political landscape. But first we need to dissect what an initiative and a referendum are. Here's former California assembly member and teacher Cheryl Cook Kallio.

Cheryl Cook-Kallio: [00:03:06] The initiative and referendum process puts the ability for citizens to either initiate the word initiate a statute that can be passed that either becomes a bill or it might become an amendment to a state constitution which gives grassroots organizers a real advantage. So an initiative is new legislation initiated by the people.

Nick Capodice: [00:03:31] Yes and referendum is.

Cheryl Cook-Kallio: [00:03:33] Something that the legislature submits to the people in order for them to validate a law that they would like to pass. Oftentimes it is something that's controversial or it may be like a state constitution or a referendum could be a grassroots movement by citizens of a particular state or county or city to recall or to redo a bill that they don't want that was passed by their lawmaking body.

Hannah McCarthy: [00:04:04] So a referendum is either reworking or removing a bill that's already been passed by Congress.

Cheryl Cook-Kallio: [00:04:12] So this gave a lot of power to individual citizens as opposed to leaving it up to your representatives.

Nick Capodice: [00:04:19] And legislative referendum is when elected officials put the question to the people. What do you think. Should we pass this bill.

Hannah McCarthy: [00:04:27] Why on earth would Congress want the people's opinion instead of just working it out themselves.

Nick Capodice: [00:04:33] Well as we've learned in many episodes it's really hard to get bills through both houses of Congress. So if you're a legislator and there's a bill that you think doesn't have a chance of getting out of committee or going through a debate on the floor of the House or the Senate you can just throw it to the people for a vote and it becomes law.

Tim Eyman: [00:04:52] So yeah this is Tim Eyman, I'm part of a team that has done initiatives in Washington state in the last 20 years. And during that time we've managed the get 16 ballot measures on the ballot. During that period of time and voters have approved 10 of those and rejected 6. So we're batting over 500.

Nick Capodice: [00:05:12] Tim is a conservative and part of what appeals to him about this process is that it gives him a voice in a state that tends to lean pretty blue.

Tim Eyman: [00:05:21] Well the initiative process is allowing people died. And I think that that is very attractive to me. Frankly I just don't trust politicians to do the right thing. But the initiatives we focus on are really focused on limiting government power and taxes.

Hannah McCarthy: [00:05:40] OK that's initiative and referendum but what is recall.

Nick Capodice: [00:05:45] Ooh, recall is super interesting and super duper rare but I wanted to include it today. Here's another initiative expert Guy Marzorati; political correspondent from our friends at KQED in San Francisco.

Guy Marzorati: [00:05:56] Recalls are of actual politicians and elected officials. We had one a little more than a decade ago in the governor's office where the sitting governor was recalled by voters and so that again was a required signature drive. That was then placed on the ballot and the governor was recalled and a new governor was chosen in the same election.

Hannah McCarthy: [00:06:17] That the people just removed a governor.

Nick Capodice: [00:06:20] They did. Gray Davis was removed from office in 2003 mostly due to tax and budget issues. But this was the election when Arnold Schwarzenegger was sworn in as governor.

[00:06:29] But for the people to win politics as usual must lose.

Hannah McCarthy: [00:06:35] No impeachment process no trial in the Senate. Just the voice of the people.

Nick Capodice: [00:06:41] Yes though I should add only 19 US states have recall and there's only been three in U.S. history, two of which were successful.

Hannah McCarthy: [00:06:49] OK so that's recall. How about initiatives and referendums how did they start. Who can put one on the ballot.

Guy Marzorati: [00:06:55] It can be anyone. And you know you there's a process by which you submit the language to the state. And then after that language is reviewed you are allowed to start gathering signatures.

Nick Capodice: [00:07:07] Here's Tim Eyman again. This is the guy who's gotten 20 initiatives on the ballot in Washington state.

Tim Eyman: [00:07:12] Well it's it's really tough. You've got to somehow convince well over 300000 fellow citizens to sign a piece of paper to put that on the ballot and you have to do that in about three or four months. So it's an incredibly difficult process to be able to you know essentially start the entire campaign and get it up and running in such a short period of time.

Nick Capodice: [00:07:38] Just a quick check in Hannahm How are you feeling about initiatives so far?

Hannah McCarthy: [00:07:43] In the sense that we are a democracy for the people by the people, it sounds really great right?

Nick Capodice: [00:07:52] Well let's start by looking at those signatures.

[00:07:58] My name is Kathy from petition's unlimited. And we here today in this very very rough economy. And I got the job for you.

Guy Marzorati: [00:08:07] In California we often can see outside of supermarkets and you know places where a lot of people gather you'll see folks with clipboards with different initiatives that they are gathering signatures for.

[00:08:19] Make your own hours. This is great for a musician for an actor somebody just wants to make money on the side.

Guy Marzorati: [00:08:26] Many of those people who do that are paid to do it and it can be a lucrative business if say an initiative is running against the clock to qualify for a ballot. Maybe its proponents will pay a hefty fee for each signature that's gathered in order to make sure that the initiative proposal does get on the ballot.

Hannah McCarthy: [00:08:46] Hold on. It's not just passionate advocates getting signatures.

Nick Capodice: [00:08:50] Oh no. This is business big business.

[00:08:55] Enough valid signatures from registered voters and the measures make it into the November ballot.

[00:09:00] If you have the 13 or 12 petitions even one person to sign them all it's worth about forty dollars. So it's worth a lot of money.

[00:09:08] Some campaigns are paying as much as five dollars this year for a single signature.

Hannah McCarthy: [00:09:14] It's the person collecting signatures who gets the five dollars per signature.

Nick Capodice: [00:09:19] Yes. So they can make upwards of five hundred dollars a day.

Cheryl Cook-Kallio: [00:09:22] So there's no incentive for that person with a clipboard to tell you the truth about what you're signing. So if you're not doing your due diligence if you're not reading the initiative you know yourself and they have a whole bag of tricks they can walk up and they say you like puppies don't you. And you know this protects the puppies and oh yes I'm going to sign this because it protects the puppies only to find out that it kills kittens.

Guy Marzorati: [00:09:47] Their job is really just to get the signatures and get paid for it.

Nick Capodice: [00:09:51] As of October 17th 2018 Ballotpedia has tracked about one point four billion with a B dollars spent on contributions and expenditures towards ballot measures for these upcoming midterms.

Hannah McCarthy: [00:10:04] This is starting to dampen my enthusiasm for a citizen led democracy.

Nick Capodice: [00:10:12] Well let me just throw another wet log on the fire Hannah. Sometimes parties and corporations throw tons of money behind initiatives for other reasons.

Guy Marzorati: [00:10:25] Ballot initiatives sometimes are often just used to get people out to the polls. I mean we saw the example that this year in California with the gas tax repeal. This was a measure placed on the ballot with heavy funding from the state Republican Party. They spent a lot to get the signatures and get it qualified for the ballot but then stop spending as much. Once the measure actually qualified. And the reason was they really wanted this gas tax repeal on the ballot to get Republicans to the polls. They thought it would be a big driver of turnout that would help them in the governor's race. And even more importantly help them in really close congressional races. But as an actual measure they didn't really fund it once it was on the ballot to the same extent which made it seem like maybe it was more important to get it on there than to actually get it passed.

Nick Capodice: [00:11:11] So imagine for a second that we as a nation had initiative and referendum. And that the decision to overturn Roe v. Wade was up to the people to decide. Can you imagine the voter turnout for that election.

Hannah McCarthy: [00:11:27] I think it would be huge. Right. I mean that's one of the most divisive issues in the country if that were up to us for a vote. I think most able voters would turn out. But. How would you even write that on a ballot.

Nick Capodice: [00:11:44] I am very glad you asked because this brings me to another point since you're voting for ideas as opposed to just candidates, names on the ballot, there is a lot of attention on how these are phrased. Back in 2008 Cheryl Cook-Kallio she was teaching a high school class she called the most inclusive class she had seen.

Cheryl Cook-Kallio: [00:12:04] They had a gay straight alliance before other schools had them. The kids were very open about who they were.

Nick Capodice: [00:12:09] And this was when California was voting on Prop 8 which was about same sex marriage.

Cheryl Cook-Kallio: [00:12:13] We have an I Vote thing in California where students mimic the national election and they all voted against gay marriage. And my mouth flew open as did my entire We The People class and I immediately went to the ballot and looked at how it was worded and I said well they were all vote thought they were voting in favor of gay marriage. So how something is worded is extremely important. And there are lawyers spend their entire career figuring out how to word something so that it seems like one thing is as opposed to another.

Guy Marzorati: [00:12:47] The wording is such a politicized aspect of this whole ballot initiative conversation. So the wording is decided by the attorney general's office. And this you know can work very drastically for and against supporters of a ballot measure. Take this year with the gas tax repeal. Democrats control all statewide office in California which includes the attorney general's office. So what voters will see on their ballot does not say do you want to vote yes on a gas tax repeal. Instead the measure and the language at sea seems really tilted towards do you want to get rid of funding that has been dedicated to fix our roads to fund transportation which is what this increased gas tax went towards. So polling interestingly that has just asked people about their thoughts on the ballot measure by reading them the ballot language. You know the repeal is done a lot worse than if you ask people whether they support a repeal of the gas tax.

Hannah McCarthy: [00:13:51] Well what language actually made it onto the ballot.

Nick Capodice: [00:13:54] All right here's the first part for the Prop 6 summary: repeals a 2017 transportation law's tax and fee provisions that pay for repairs and improvements to local roads state highways and public transportation. Ballotpedia has this automatic formula that analyzes the readability of all of these measures. And it's called the Flesh Kinkaid grade level which is how many years of formal education you'd have to have in order to fully understand with confidence a ballot measure. So this one we just read that scores of 16.

Hannah McCarthy: [00:14:25] What does 16 mean.

Nick Capodice: [00:14:27] That means you need 16 years of formal education to comprehend. You need a college degree. And the one we played some ads for in the beginning are old horsea friend Prop 1 in Idaho.

[00:14:37] I work with horses all my life.

Nick Capodice: [00:14:40] 53 years of formal education to understand.

Hannah McCarthy: [00:14:44] Who besides a monk has 53 years of formal education.

Nick Capodice: [00:14:50] It's just it's just a formula that analyzes language. But let me but tell me how you'd vote on this. Ready?

[00:14:56] Yeah.

Nick Capodice: [00:14:56] An initiative amending Chapter 25 title 54 Idaho code contains findings and purposes MEND's definition of historical horse race adds new section authorizing historical horse race betting in certain locations where live or simulcast parimutuel horse race betting occurs specifies requirements for historical horse racing terminals declares such terminals not to be slot machines allocates revenue from historical horse race betting requires licensees to enter into agreements Horseman's groups prehistorical horse race purse money fund and State Treasury authorizes distribution by state races commission and between state treasurer refund monies direct state racing commission to promulgate implement rules declares and act effective upon voter approval and completion of voting canvass and provides for severability.

Hannah McCarthy: [00:15:31] Get out. Leave.

Nick Capodice: [00:15:34] My favorite words in this are parimutuel.

Nick Capodice: [00:15:36] So a lot of words, spellcheck was like don't you mean something else like three words in this the my spellcheck didn't catch

Hannah McCarthy: [00:15:43] What's the single thing I'm voting on like what's the big idea here. Because these are a million little things that don't mean a hell of a lot to me. I know nothing about horseracing.

Nick Capodice: [00:15:52] Yeah this is the sort of stuff that requires you to do the legwork you have to research each initiative before you vote. From what I can gather Prop 1 is about legalizing the use of video terminals for horse race betting.

Hannah McCarthy: [00:16:04] I would not have gotten that.

Nick Capodice: [00:16:06] And there's 11 of these in California alone. So if there's a call to action today it's to go to a Web site like, Put in your address and get a sample ballot before Election Day.

Hannah McCarthy: [00:16:19] Or let's say you're in the polling booth. Get out your phone. Look this stuff up if you need to.

Nick Capodice: [00:16:24] So let's hear Guy's final thoughts on the pros and cons of direct democracy.

Guy Marzorati: [00:16:31] Supporters of ballot initiatives say this is the best way to give citizens power to react to things that the legislature isn't dealing with. Examples of that in the past have been about property taxes. This year rent control issues that the legislature hasn't taken up for years. People are fed up and they feel like OK you didn't act on this. Now it's time for us to act on it. On the flip side when we talk about citizens initiative these often aren't brought to the ballot by you know some good citizen who suddenly thinks of it an idea that should be a law it's oftentimes interest groups unions corporations that feel like. You know they want to change a law. They couldn't do it through the legislature. They don't want to negotiate about it. They want to just port forward kind of a yes or no idea and they're willing to spend heavily to make it happen.

Guy Marzorati: [00:17:19] That's you know how does the process I guess has taken on more of a cynical aspect.

Nick Capodice: [00:17:25] And if it seems that people are a bit cynical of initiatives I want to close by saying that yes, corporations and political parties have massive influence on what initiatives make it to the ballot. That said, these are also the issues that elected officials have been avoiding, that they wouldn't touch with a ten foot pole. Issues like marijuana legalization. Abortion. Same sex marriage. The death penalty.

Hannah McCarthy: [00:17:54] So knowing that the language might be designed to purposefully obfuscate the meaning. I feel empowered to do research and also to take with a grain of salt what I'm reading in that voting booth it's a little bit like those crosswords you do Nick where the clue contains the answer but it's not immediately apparent you have to think outside the box to get to it.

Nick Capodice: [00:18:21] The cryptic crossword.

Hannah McCarthy: [00:18:22] Yeah.

Nick Capodice: [00:18:23] And I think it's really exciting they just Prota a lot of there's a lot of trust in the voter in these issues. If the voters all do their work. Then these can be a really cool thing. If they don't they're at the whims of people who have lots of money.

Hannah McCarthy: [00:18:38] Right.

Nick Capodice: [00:18:39] So you gonna move to California.

Hannah McCarthy: [00:18:42] No, I like the rain.

Nick Capodice: [00:18:44] Before we go we have our final snapshot of a famous midterm from U.S. history delivered by former NHPR reporter current afternoon host at Wisconsin Public Radio. Author of dead presidents, Mr. Perfect, Brady Carlson. What mid term are we talking about today Brady?

Brady Carlson: [00:19:01] We're talking about the midterm of 2002 and the lesson from this midterm is that the rules of American politics only apply until they don't.

Brady Carlson: [00:19:16] We know that what typically happens in midterms is that the president's party loses seats in Congress in the midterm after the president is first elected. They don't always vote for the opposition party to have control of Congress. But at the very least the president's party ends up with fewer seats in Congress after that midterm. That said the political picture in 2002 was complicated. We were only a couple of years removed from the presidential election of 2000. That's the one where Republican George W. Bush won the Electoral College but lost the popular vote and there was the highly controversial Supreme Court decision about recounts in the state of Florida.

[00:19:57] Neither the sanctity of the ballots nor the integrity of the election. Has been compromised. And that the election results....

Brady Carlson: [00:20:08] Republicans had a majority in the House of Representatives. It was a straightforward majority. The Senate was anything but straightforward 2000 elections have left the chamber with 50 Republican senators and 50 Democratic and Democratic aligned senators. So the vice president was on the hook to potentially break all these ties.

Brady Carlson: [00:20:26] And then after five months of that split Republican senator switched parties and the Democrats had a very narrow majority.

Senator Jim Jeffords: [00:20:33] I have found myself in crushingly odds with the Republican philosophy and more in line with the philosophy of the Democratic Party.

Brady Carlson: [00:20:43] So leading up to this midterm we had one chamber of Congress with a Republican majority one with a Democratic majority a president who had only narrowly won an election. So this is about as divided as divided government gets which in and of itself is very complicated.

Brady Carlson: [00:20:59] But of course the most complicated piece of the midterm in 2002 was that it came about a year after the attacks of September 11 2001.

Geoge W Bush: [00:21:09] I became something that no president should ever want to be a wartime president.

Brady Carlson: [00:21:16] There were other issues at the time. There had been a big tax cut bill in Congress. There was the No Child Left Behind education law.

Brady Carlson: [00:21:22] The U.S. economy had kind of become sluggish but the single big issue in this midterm was security. The U.S. was already launching a military effort in Afghanistan. President Bush had called for Congress to authorize a new military campaign in Iraq. And I had forgotten until I looked it up just how close to the election the Iraq war vote took place it was in October 2002 so it was under a month before Election Day. Republicans in Congress by and large backed the president, said you need to go into Iraq. The Democrats who had mostly opposed the president on the economy and other domestic issues ended up split on the Iraq vote. A lot of rank and file Democrats opposed the war vote but their leaders in the House and Senate as well as some very high profile senators like Hillary Clinton and John Kerry voted in favor of the resolution.

Senator Hillary Clinton: [00:22:13] Any vote that might lead to war should be hard but I cast it with conviction.

Brady Carlson: [00:22:21] Now obviously that became a very consequential vote for a lot of reasons a lot of people changed their minds about that vote in the years to come. But if you look at it purely through the lens of a midterm election campaign you have a lot of high profile Democrats who are basically siding with the Republican administration on the top issue of the campaign. And all of that ends up leading to a midterm outcome which is far from the usual. There's an important caveat about that rule that the president's party loses seats in the president's first midterm. And that is that you can usually track how big those losses are going to be for the president's party based on the president's approval rating at the time. So take GeorgeW. Bush's predecessor Bill Clinton in his first midterm election. His approval rating was like 43 percent. And so Democrats lost pretty big. They lost control of Congress. In 2002. George W. Bush's approval rating was 63 percent.

Geoge W Bush: [00:23:23] We choose freedom and the dignity of every life.

Brady Carlson: [00:23:34] It wasn't that long before it was even higher in the immediate aftermath of the September 11th attacks. So you have a president with relatively high approval ratings long term changes in the country's political alignment and an election where security and terrorism are top issues in a way that they usually aren't. And it wasn't that all of that ended up turning into a landslide for Republicans in 2002. It was still pretty divided. If you look at the raw vote totals but the races that might have swung one way or another determine the outcome wound up swinging in the administration's favor. So in the end Republicans gained five seats in the house the game two in the Senate. So they wound up having majorities in both chambers of Congress.

Brady Carlson: [00:24:15] Again this is the first time that the president's party had gained seats in the president's first midterm election since the 1930s.

[00:24:28] He told me to come down here and tell you something. Tell me to come down here and tell you that two years from now he wants all y'all on his team.

Brady Carlson: [00:24:47] The lesson here is that there are no guarantees in U.S. elections. There are trends and some of them happen so often that they might almost feel like political laws. But to assume that voters will go a certain way in an election just because voters have usually gone that certain way in the past is to forget the wisdom of one of our great philosophers baseball star Yogi Berra who said it ain't over till it's over.

Nick Capodice: [00:25:18] That'll do for this our penultimate episode on the midterms. Stay tuned for the next and final one. Today's Episode is produced by me Nick Capodice and Hannah McCarthy.

Hannah McCarthy: [00:25:29] Our staff includes Jacqui Helbert and Ben Henry our executive producer is Erika Janik. Maureen McMurray believes in parimutuel promulgation.

Nick Capodice: [00:25:37] Music from today's episode is from Geographer, Scott Graton, Chris Zabriskie, Poddington Bear and Blue Dot Sessions.

Hannah McCarthy: [00:25:45] Civics 101 is a production of an NHPR, New Hampshire Public Radio.




Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Midterm Edition: Campaigning


In this episode, you'll hear from Inside Elections reporter Leah Askarinam, CNN political analyst Bakari Sellers, politics professor Barry Burden and state house candidate Maile Foster. Plus, Brady Carlson walks us through a midterm of revolutionary proportions. 

Episode Segments





Civics 101

Episode: Campaigning


Hannah McCarthy: [00:00:00] Nick, you ready?


Nick Capodice: [00:00:01] Yeah.


[00:00:05] (ad archival)


Hannah McCarthy: [00:00:41] Relentless.


Nick Capodice: [00:00:41] Yeah this is some of the most depressing audio I've ever heard.


Hannah McCarthy: [00:00:44] Yeah it's it's a bummer. Now listen to this.


[00:00:51] (ad archival)


Nick Capodice: [00:01:08] Hope and action. Anger.


[00:01:11] Yeah.


[00:01:12] We have to do something better for.


Nick Capodice: [00:01:14] Things are going to change.


Hannah McCarthy: [00:01:16] It's like a montage in a movie it's like when things turn around.


Nick Capodice: [00:01:20] That's my favorite part of every movie. Yes the rocky montage.


Hannah McCarthy: [00:01:24] So you better right?


Nick Capodice: [00:01:25] Yeah I do feel a lot better.


Hannah McCarthy: [00:01:25] That's how you're supposed to feel.


Nick Capodice: [00:01:28] So what's up with this emotional rollercoaster.


Hannah McCarthy: [00:01:31] Well Nick that is the sound of someone trying to convince you to vote for them in 2018. A campaign ad that doubles as a heart wrenching autobiography The story of a youth who pulled themselves up by their bootstraps and grew into a grateful and nurturing adult but remains frustrated by the way the world works and wants to do something about it.


Nick Capodice: [00:01:53] Heavy stuff.


Hannah McCarthy: [00:01:55] It is heavier than you can imagine. These ads which look pretty expensive by the way are just one teeny tiny piece of the campaign puzzle and that puzzle is even more puzzling in a midterm election.


Nick Capodice: [00:02:10] Did you solve the puzzle.


Hannah McCarthy: [00:02:11] Absolutely not. But I did talk to a lot of smart people who have because that is how we do it because this is civics 101. The podcast refresher course on how our democracy works. I'm Hannah McCarthy.


Nick Capodice: [00:02:26] And I'm Nick Capodice.


Hannah McCarthy: [00:02:28] And today we are talking money shoe leather and grass roots. Today we are talking campaigns. The sound of campaigning is in constant flux. In the 1960s there was a lot of just repeating candidate names over and over.


[00:02:51] Nixon. Nixon. Nixon Nixon.


Hannah McCarthy: [00:02:52] In the 80s you had a lot of stare at the camera and keep it serious going on.


[00:02:57] Kansas agriculture needs our support. I'm asking for yours on November 6th.


Hannah McCarthy: [00:03:03] And the Hollywood ish melancholy of today will probably be replaced by a whole new sound four years from now numbers shift tactics shift campaign finance laws shift but the principles of campaigning, the bare necessities those are locked in your state constitution.


Maile Foster: [00:03:22] My name is Maile Foster. I'm a small business owner and single mom and I'm running for State House District 18 as an independent. And that's the central Colorado Springs area.


Hannah McCarthy: [00:03:38] A while back Miley was approached by an organization called Unite America.


[00:03:43] Imagine a government that unites rather than divides us one that takes action on issues.


Hannah McCarthy: [00:03:48] They identify independents in various states and then try to get them to run for office.


Hannah McCarthy: [00:03:53] You know people love saying I'm not a politician in their campaign ads?


[00:03:57] I'm a businessman not a politician. Kip's not a politician. He's not a politician of convenience. Here my politician endorsements. None.


[00:04:07] Maile is very much not a politician. She's a financial adviser and before that she worked for IBM. So I wanted to know where someone like her begins after agreeing to something like this. You know you wake up the next day what do you do first.


Maile Foster: [00:04:25] Well it's this big thick three ring binder to do list. That's what it is.


Nick Capodice: [00:04:31] A binder. You mean like a literal binder there's an instruction manual on how to run campaigns?


Hannah McCarthy: [00:04:37] Yeah. The people from Unite America just shipped her this hulking how to manual.


Maile Foster: [00:04:41] Well I will just start on this to do list.


Maile Foster: [00:04:47] Oh we have to file paperwork with the secretary of state each have to form a committee and get a tax ID number. I mean basically start from scratch starting the business almost. And but there's additional financial and regulatory reporting requirements because I have that all spelled out for me is not too hard to just start going down the list. What you gotta do to kick off the campaign.


Nick Capodice: [00:05:17] So you just file some paperwork with the secretary of state. It's just that easy?


Hannah McCarthy: [00:05:21] Actually there is one major step that had to come first.


Maile Foster: [00:05:25] And so right from day one it was like May 17 was the first day I can go get signatures. And so that very first day I was out talking to people to get signatures to get on the ballot.


Nick Capodice: [00:05:39] So signatures so people have to go out and vote for her before they vote for her.


Hannah McCarthy: [00:05:43] Yeah this is called Nomination by Petition and just for the record ballot access laws vary from state to state. So if you're planning to run you should give your election officials a call. But in Miley's case since she was going independent she needed at least 400 signatures to get on the ballot. State Senate requires 600U.S. House requires 800. It's a cool thousand for U.S. Senate. The rules are different for major and minor parties as well.


Nick Capodice: [00:06:11] So Maile got her 400?


Hannah McCarthy: [00:06:12] Actually. She scored 637 signatures.


Nick Capodice: [00:06:16] I mean that seems like an awful lot of work just to get started campaigning. But once you do that what's the next step?


Maile Foster: [00:06:22] Well you need someone to help you manage finances. You need a Treasurer you need someone to help you with volunteers and help recruiting volunteers. You need someone to build a Web site.


Nick Capodice: [00:06:34] So people so for even for a small statehouse seat you need a whole team?


Hannah McCarthy: [00:06:37] Yeah it's kind of amazing to think of how many operations like this are going on around the country during an election year. And you know even with volunteers this stuff costs money which means on top of her day job Maile has to put in hours every day making calls and hoofing it from one door to the next. Introducing herself and asking for money.


Maile Foster: [00:06:59] The first priority of course was raising money because I made a choice of. Obviously I'm not going to get money from a political party because I don't want to be beholden to a political party.


Hannah McCarthy: [00:07:11] I should point out here that the group that recruited Maile does help to fund campaigns. It's a super PAC registered with the FEC specifically designed to be nonpartisan but they don't cover all expenses and Miley has to do a lot of legwork on her own. She actually told me that she outraised all of her opponents.


Nick Capodice: [00:07:30] So that's not bad for someone who's never campaigned before. I'm still trying to figure out what a campaign actually looks like for a candidate who's not in office. Fundraising, courting voters, creating a platform. How does that work?


Maile Foster: [00:07:42] Well a typical day is I'm up at 530. I'm working my day job at maybe by 7 or 730 which didn't I didn't quite used to be up that early. I'm just having the extended day a little bit.


Hannah McCarthy: [00:08:01] So Miley is up. She does her financial advising thing and then.


Maile Foster: [00:08:05] I try to go into campaign mode about 3:00.


Maile Foster: [00:08:13] At least probably an hour a day raising money and then either phone calls or coordinating Fund-Raising events and things like that. Now I'm really trying to meet people especially people in my district to understand what I need to do to earn their vote. I learned something about myself is that it was hard for me to do more than two hours of walking when it was 90 degrees.


[00:08:44] Even with all these advances and changes that have morphed the political landscape since say, the "I like Ike" era.


[00:08:51] U. Like Ike, I like Ike everybody likes Ike!


Nick Capodice: [00:08:53] It sounds like campaigning is pretty analog.


Hannah McCarthy: [00:08:58] Well voters need to see you right. They need to know your face. They need to hear your voice especially if they have no idea who you are. That means thousands of candidates around the country flooding the Internet television radio your mailbox your doorway with their face and their message.


Leah Askarinam: [00:09:25] So a lot of the kind of work that goes into a midterm campaign on the challengers end is just making sure that voters know who they are.


Hannah McCarthy: [00:09:36] This is Leah.


Leah Askarinam: [00:09:37] I'm Leah Askarinam. I'm a reporter and analyst for Inside Elections with Nathan Gonzales. We provide nonpartisan analysis of gubernatorial and federal races.


Hannah McCarthy: [00:09:48] Leah makes clear that even step 1, making sure voters know who you are cannot happen without a lot of cash.


Leah Askarinam: [00:09:57] Without money nothing else really matters.


Hannah McCarthy: [00:10:00] And that once you've got that money it's a matter of appealing to voters and in a midterm election that often means appealing to a country that wants to punish its president.


Nick Capodice: [00:10:11] This comes back to the referendum on the president idea.


Hannah McCarthy: [00:10:14] Exactly and we get into that a bit more in our episode on Why Midterms Matter so make sure to check that out. Anyway let's say there's a Democrat in the Oval Office.


Leah Askarinam: [00:10:23] So you'll see candidates try to say listen I don't like the Democratic Party either.


[00:10:27] I'm Not a Democrat for the powerful. I'll be a governor who empowers you.


Leah Askarinam: [00:10:31] I don't like Nancy Pelosi either.


[00:10:33] But I've said from day one that I won't vote for Nancy Pelosi.


Leah Askarinam: [00:10:36] I like the old Democratic Party and I want to help you the workers.


[00:10:41] It's time we acknowledge that not all Democrats are the same.


Leah Askarinam: [00:10:45] And I want to make sure that you have health care and that you have a good paying job.


Hannah McCarthy: [00:10:49] So it's like when we think about the rules of politicking about sticking to your party's message, Midterms are like this alternate universe in which a party loyalist might end up campaigning against the tenets of their party. And the same goes for voters. With this referendum in the air, some become swayable.


Hannah McCarthy: [00:11:10] So people who are registered Democrats because they are Democrats in the 1980s who have since voted pretty much exclusively for Republicans, to get them to kind of come back to their party. And that's also includes some independents people who maybe formerly were Democrats felt that the Democratic Party abandoned them but felt that the Republican Party wasn't the best fit either.


Nick Capodice: [00:11:35] This may sound cynical but it sounds like the midterms are a perfect opportunity to cash in on disillusionment to say like, I hear you, this party is a real mess. It's been a real bummer. But you can vote for me because I'm not one of those Democrats right? I'm a kinda Democrat you wish still exist. I'm your I'm your grandfather's Democrat.


Hannah McCarthy: [00:11:56] Or you go the route of Maile Foster and run independent right, which means you can campaign on fiscal responsibility and education like Maile is without those commitments carrying the weight of political affiliation. And Maile by the way is an example of one of these kind of soul searching voters. She was a Republican for most of her life and then registered Democrat for a little while before she finally became an independent.


Nick Capodice: [00:12:21] Is there a certain demographic of the population who's more or less likely to be swayed by this independent campaign?


Hannah McCarthy: [00:12:27] I think it varies from year to year along with the political climate. But for example in this year's midterm there has been a lot of attention on suburban white educated women.


Leah Askarinam: [00:12:40] And so you'll see Democrats in other districts try to get those voters. So they are trying to make Republican suburban Republicans feel comfortable not voting for the Republican Party.


Hannah McCarthy: [00:12:53] You might see this with an independent or a moderate Democrat candidate who can sway voters with lets say conservative ideas combined with a strong sense of checks and balances.


Nick Capodice: [00:13:04] But I've seen a lot of these ads and it seems like the strategy is a little less nuanced, like a Democrat who appeals to gun rights activists by shooting a gun the entire time that they're on camera.


[00:13:14] And I approve this message. (bang bang bang)


Hannah McCarthy: [00:13:21] I've seen a lot of those ads.


Nick Capodice: [00:13:22] So many guns in ads!


[00:13:22] And I'll take dead aim at the cap and trade bill.


[00:13:26] I'm a straight shooter.


Hannah McCarthy: [00:13:31] The tactic that you take all depends on where you're running and what pollsters have dug up on your community's demographics and ideas. It's a pretty delicate balance.


Bakari Sellers: [00:13:42] Well I'll just tell you that all elections are tough but a midterm election is a little bit more difficult depending on which party you are part of.


Hannah McCarthy: [00:13:53] This is Bakari Sellers, former state rep from South Carolina currently a lawyer and a CNN commentator.


Bakari Sellers: [00:13:59] If you are a party of the individual in the White House usually you have to run against Washington D.C. as we say and sometimes that gets kind of difficult. You want to stay away from the national politics and just run your own race if you're in the opposition party or if you're a Democrat in 2018. What you want to do is run against the White House and your opponent. If you're running during the mid-term election in 2010 what you saw was many Democrats some Democrats even ran against the Affordable Care Act. Many Democrats didn't want Barack Obama campaigning in their district. You're starting to see a lot of that. Or you're seeing a lot of that in 2018 with Donald Trump.


Nick Capodice: [00:14:35] Seriously so some Democrats in 2010 called up Obama and they were like would you mind just staying away from Nebraska this time of year.


Hannah McCarthy: [00:14:43] Well if the midterm is almost always a referendum on the president right then distancing yourself from the president might be the safer bet in some states. I talked to a political science professor at the University of Wisconsin Madison who got a little deeper into this idea of you know running your own race. This is Barry Burden.


Barry Burden: [00:15:03] So members of the president's party tend to want to make elections about local issues and about them as people so they want to emphasize what political scientists call the personal vote reminding constituents in the district who they are as an individual often kind of identifying with constituents reminding them that hey I grew up here or I share values with you or I've been working for you in Washington where I share the same goals as you so I'm not really part of that Washington establishment. Lots of members of Congress and challengers actually run for Congress by running against it. They criticize the institution and try to convince voters that they will be the ones to go to Washington and help clean up the mess.


Nick Capodice: [00:15:45] So in a midterm election we're seeing personal vote versus the national vote?


Barry Burden: [00:15:51] Democrats say in 2018 would very much like this to be a national referendum and to bring in lots of members of their party so to create a kind of wave or tide or whatever metaphor you like whereas members of the president's party Republicans this year want to insulate themselves from the tide and build a kind of levee or life preserver or something so they can weather the storm.


Hannah McCarthy: [00:16:11] In these uncertain waters. You can think of the president as either your buouy, or the cement shoes dragging you to the bottom. The party not affiliated with the president swims toward what's going on nationally while the party represented by the president might do better staying far away from the shore where it's safe.


Nick Capodice: [00:16:34] So what is the president's job during a midterm in terms of campaigning? Because he's got some people who are trying to steer clear of his messaging and policies and there's others who are on the attack against it.


Barry Burden: [00:16:45] It's a delicate dance for a president in a midterm they want obviously to help their party keep their party's seat share in the legislature if not grow it or minimize the losses. They will do a lot of fundraising and some of that is out of public view. So they're doing private fundraisers gathering millions of dollars and then trying to distribute that to members of their party who could use the funds who are really in some close races and would benefit from some additional campaign money.


Nick Capodice: [00:17:14] OK so the president is using his position of power to generate some cash flow even if he isn't straight up campaigning for candidates in his party.


Hannah McCarthy: [00:17:22] Right. And there are areas of the country where it's totally helpful for the president to campaign but he's got to be strategic.


Barry Burden: [00:17:31] In terms of going out on the campaign trail and giving stump speeches. They're going to be careful about that. They don't want to go into places where they're unpopular and they might create kind of a backlash and remind voters that the candidate in that state or district who's from their party is also linked to the president and that might kind of amplify the penalty that that party faces. So you know they will often deploy to safe districts where they can raise a lot of money and help somebody who's on their side.


Hannah McCarthy: [00:17:59] So here's the deal. There are plenty of places in the country that are solidly overwhelmingly for the president and those districts matter. But to me they're kind of the whitebread of the midterm elections. They're predictable they're the safe bet. If you want to understand what makes midterms unique, what gives them a personality all their own, look to the districts where things are up in the air. A midterm election takes a swing state a swing town and truly tests the mettle of candidates in that area.


Nick Capodice: [00:18:34] How is this different from every other election year. We're always looking at swing states to see how things are going to shake out.


Hannah McCarthy: [00:18:39] The big difference here is turnout. It's lower in a midterm year than it is in a presidential election year and fewer voters mean higher stakes when it comes to campaign messaging especially because the people turning out to vote tend to be driven to the polls by strong conviction. If you can swing the electorate in your direction in a midterm, especially if that direction is away from their typical status quo, then you've accomplished something huge. The candidate who manages to pull that off has played the midterm campaign game to a tee. And if enough candidates do just that it can change everything like a peaceful revolution coordinated and precise campaigning in a midterm election can shake state sometimes even Federal Congress and flip control. This doesn't happen often by the way.


Hannah McCarthy: [00:19:32] It takes some crazy political will and circumstance but it is possible in the past three decades we saw this in 1994.


[00:19:41] Democrats lost the house they've controlled for all but four years since 1932 they lost the Senate they controlled for all but six of the previous 40 years.


Hannah McCarthy: [00:19:51] 2006.


[00:19:52] Good evening. Call it a revolution or a repeal. Democrats are now in charge in the house they needed 15 seats to retake the majority.


Hannah McCarthy: [00:20:01] And 2010.


[00:20:03] Republicans will take control of the House of Representatives.


Hannah McCarthy: [00:20:13] It is really hard to pull off a total switch of power changing who holds the reins at the very top. But with the right political climate and some intense campaigning midterm elections can change everything.


Hannah McCarthy: [00:20:37] Before we go I want to take you inside of one of those crazy landscape changing elections of the past. It's considered a full blown political revolution and Brady Carlson host and reporter at Wisconsin Public Radio is here to break it down which midterm are we talking Brady


Brady Carlson: [00:20:55] This is the midterm of nineteen ninety four and if modern Americans know about any midterm in particular, 1994 is often the one that they know about. Well the first player is Bill Clinton. He was in the middle of his first term as president the first Democrat to win the White House in 12 years.


Brady Carlson: [00:21:16] The man from Hope.


Bill Clinton: [00:21:17] Now I was born in a little town called Hope Arkansas. Three months after my father died.


Brady Carlson: [00:21:23] And everybody talks today about how charismatic he was and how popular he was and that wasn't necessarily the case when he first got started. He ended his term as a relatively popular president. But in the early going he ran into lots of roadblocks.


Brady Carlson: [00:21:45] Remember the first few issues that he made policy moves on. Like the expansive health care proposal.


[00:21:52] Our health care is too uncertain and too expensive.


[00:21:55] The Brady bill so he's adding waiting periods and background checks on guns.


[00:21:59] The Brady bill is not just symbolism.


Brady Carlson: [00:22:02] From lifting the ban on gay service members.


Bill Clinton: [00:22:05] The debate over whether to lift the ban on homosexuals in the military has to put it mildly sparked a great deal of interest over the last few days.


Brady Carlson: [00:22:13] These were all big pushback items at the time and even the things that he did manage to get through like he got approval for the North American Free Trade Agreement NAFTA that wasn't massively popular with the Democratic base. And this is all at a time when there's also talk about like the Whitewater real estate scandal, continued rumors of womanizing,.


[00:22:39] What she calls a 12 year affair you... That allegation is false.


Brady Carlson: [00:22:46] So these are all things that are working not in Clinton's favor classic ingredients in that midterm losses stew. And at the same time you have Republicans launching this very well organized well funded and national campaign to win seats in Congress. This is where they launched what was known as the contract with America. It was a set of bills. They said if you choose us in the midterms here's what we'll do in office.


[00:23:14] We are going to get to the final recorded votes in the first 100 days on every item.


Brady Carlson: [00:23:24] And a lot of opposition parties will just campaign against whoever's in power. And this is a case where the opposition party was also offering an agenda.


Brady Carlson: [00:23:35] The Democrats had majorities in both houses they had had a majority in the house for decades the Senate had gone back and forth a few times but there were pretty substantial majorities for the Democrats in both chambers at that point. 1994 was the biggest loss by the party in power in a generation.


[00:23:58] That Capital is a very different building this morning it is in Republican hands solidly in Republican hands.


Brady Carlson: [00:24:07] Democrats lost 52 House seats eight Senate seats and so was the first time Republicans had majorities in both chambers of Congress since 1950. For the Speaker of the house was one of the Democrats who lost his seat. And at the state level it was big for Republicans too. So their candidates were beating prominent national Democrats like the then governor of New York Mario Cuomo. People know his son Andrew Cuomo as governor today or the then governor of Texas Ann Richards who lost her position to the Republican challenger who was a then baseball executive named George W. Bush.


[00:24:48] I like to go to ball games and I try to you know lend a sense of the kind of fans owner.


Brady Carlson: [00:24:53] And so what happened was the Republicans led by the new speaker of the House Newt Gingrich of Georgia started talking about this election in terms of a Republican revolution. That people weren't just repudiating a first term president. This was a case where the American people had chosen a new majority party and they wanted a new course for American politics. Things were going to be different from then on. And for a while it actually sounded a little bit like that was what was going to happen. I remember a couple of months after that midterm there was a press conference from President Clinton and he responded to one of the reporters questions by basically saying yes everybody is paying attention to Speaker Gingrich and the Republicans. But I'm still relevant. I'm the president. I still have something to add to this.


Bill Clinton: [00:25:46] The president is relevant here especially an activist president and the fact that I am willing to work with the Republicans.


Brady Carlson: [00:25:52] What an extraordinary thing to happen that the president of the United States has to remind you that he's relevant.


Brady Carlson: [00:26:00] Well this was the catch that Republicans had become convinced that they had won midterms because of the Contract With America that voters had chosen them and that because of that voters were choosing their policy agenda. And some voters were of course but not all of them. I mean a midterm is still a midterm. Even if Republicans offered policy agenda and offered a contract with America offered legislation there were still a lot of people who may have voted for that party's candidates who are really just mad at the new president and wanted to balance out his power.


Brady Carlson: [00:26:42] And so the Republican majorities as they were starting to put some of this legislation out there, the bills to change welfare programs the bill change taxes, they started to see pushback to those policy plans just like the Clinton administration had seen pushed back against its plans. And at the same time that you're seeing that opposition President Clinton who is still relevant as he said found his political footing again he had tack to the left when he started and that didn't work. So he tacked back toward the center. He basically coopted some of the more popular parts of the Contract with America and very vocally criticized and campaigned against the less popular ones. So he had rebranded himself at the same time that the Republicans had tried to write him off. TheU.S. economy had started to improve. And so you have this rapidly changing political climate again. And so two years after Bill Clinton had basically been written off by a lot of people he was winning re-election.


Bill Clinton: [00:27:54] Tonight we celebrate the miracle of America. Tomorrow. We agreed on and began our work anew.


Nick Capodice: [00:28:06] Thanks for listening to Civics 101. There is a whole lot more where that came from in our series on the midterms. Make sure to become obsessed with it as we are.


Hannah McCarthy: [00:28:15] Today's episode was produced by me Hannah McCarthy with Nick Capodice and Jacqui Helbert. Erika Janik is our executive producer.


Nick Capodice: [00:28:22] Maureen McMurray is a straight shooter all the way.


Hannah McCarthy: [00:28:24] If you want more Civics 101 or you've got a burning question about how this whole crazy democratic experiment actually works we have got a Web site for that You Can also follow us on Facebook or Twitter @civics101pod.


Nick Capodice: [00:28:40] Music in this episode is by Diamond Ortiz Poddington Bear Jahzaar Dan Liebowitz and our old friends Blue Dot sessions.


[00:28:48] Civics 101 is a production of new Hampshire Public Radio.





Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Midterm Edition: House v Senate

Two houses, both alike in...well, many things.  But oh so different in many others. We go from absolute basics to the philosophical differences that exist in the Legislative branch. This episode features the opinions of former staffers from both chambers (Andrew Wilson and Justin LeBlanc) a former member of the CA assembly (Cheryl Cook-Kallio) a CNN political analyst (Bakari Sellers) and the inimitable Political Science professor from Farleigh Dickenson, Dan Cassino.

Also, Brady Carlson tells the tale of the biggest loss in midterm history, though we did get a federal holiday out of the deal.

Episode Segments





Civics 101

House v Senate


Archival Audio:  Mr. President, Mr President I call my amendment per the order. The court will report the amendment...


Hannah McCarthy: Nick, What is going on why are you making me listen to this?


Nick Capodice: Ok this is from a youtube video from 2009 and it’s called Senate Chaos. Senator Bernie Sanders from VT he’s just proposed an amendment to a healthcare bill, and as usually happens,  he asks the amendment be considered as read.  Since senators usually get these bills and amendments in advance, there’s no need to read them aloud.


Archival Audio: (I object, objection is heard)


Nick Capodice: Alright, Right there, Senator Tom Coburn from Oklahoma (I object) objects.  So the clerk has to read the whole thing aloud. It’s 767 pages. That would take over 14 hours. After two hours of reading, Sanders withdraws the amendment. Alright, Listen to this.


Archival audio: And had the courage to change from green to red or red to green! (chants of ‘Shame, shame, shame!)


Hannah McCarthy: Whoah, what is going on


Nick Capodice: What’s going on Hannah is the House of Representatives. Such a magical place.


Nick Capodice: Welcome to Civics 101 I’m Nick Capodice

Hannah McCarthy: And I’m Hannah McCarthy


Nick Capodice: And we’re continuing our series on the upcoming midterms. Today? Something many Americans are going to see on their ballot, and a question I’ve wanted to ask since day 1. What is the difference between the House and the Senate?  


They mostly have the exact same powers, with a few exceptions which we’ll talk about, but they both propose bills that might  become laws. Bills can start in either the house or the senate, but they have to be passed by both houses before they go to the president to be signed into law. Though to really understand their key differences, we need to go back...through the annals of history.  

Hannah McCarthy: Please don’t do this.


Nick Capodice :  Oh ho, it appears we’re at the old City Tavern in Philadelphia in 1787, Hannah!


Hannah McCarthy: Please


Nick Capodice:  Why is that James Madison over there? The Sage of Montpelier?


Archival: Yes but ours will be different. Since our plan expands the powers of congress, we will check that power by dividing it into two houses; an upper house, and a lower house.


Hannah McCarthy: What is that from?


Nick Capodice: You’ve never seen A More Perfect Union, the bread and butter of the 8th grade social studies class?


Nick Capodice:Ok, fine. Forget it. Scrap it. But What I’m tryin’ to get at is, During the great debates at the constitutional convention, there was this huge question of representation. Who should make our laws? How many people? Should the big states have more power, because they have a bigger population? Or should all states have equal representation? To make a long story short, we’ve ended up with both. We have a two house Government. A bicameral legislature.  The names can be kind of tricky though. Here’s teacher and former California State Assembly member Cheryl Cook Kallio


Cheryl Cook-Kallio: And so Congress is technically both the House of Representatives and the Senate. Members of the Lower House, the House of Representatives have always been addressed as Congress Members, and members of the Upper House have been addressed as Senator.  


Hannah McCarthy: So a senator is technically a congressperson, but you would never call them that.


Nick Capodice: Yeah, no, and the senate is technically one of the ‘houses’ in congress, but when we say ‘the House’ we mean the house of Representatives.


Hannah McCarthy: I’m glad we got that out of the way I have always wondered.


Cheryl Cook-Kallio: the Framers created a two house legislature in order to make sure that the needs of the people as well as the states were addressed. The House of Representatives, the length of term is shorter it's every two years. It's a more frantic place. It takes on a sense of urgency. The Senate on the other hand is up every six years.


Nick Capodice: Length of term is a major thing that differentiates the house and the senate. The next key difference is the number of members. Our current House has 435 members apportioned by state population; California has 53 congresspeople, we in NH have 2. And the senate has 100, two from each state.


Dan Cassino: The founders were trying to give the public some power for trying to have some element of democracy. The problem is they didn't trust the people as far as they could throw them.


Nick Capodice: This is Dan Cassino, political science professor at Farleigh Dickinson University


Dan Cassino: They didn't like the people at all. They even called democracy mob-ocracy because they don't like the idea of the people actually running anything. The reason we have the House of Representatives is to give the people a voice but to make sure that voice can't actually do anything. The House is supposed to be representative of the people but as far as the founders are concerned the people the United States were kinda like the people of Springfield and The Simpsons;




Dan Cassino: They're ready to jump on any bandwagon with pitchforks and torches and protest against anything. And we've seen this repeatedly throughout American history. In the early 19th century. We had the first major third party in American politics the anti-Masonic party, a party devoted entirely to a conspiracy theory that Masons were murdering people in upstate New York dumping the bodies, then masonically-oriented police and judges were covering the whole thing up.


Hannah McCarthy: That was their sole platform? Not liking the Freemasons?


Dan Cassino: That seems a little ridiculous except those folks into Masonic party won a bunch of seats and statehouses and even won a bunch of seats in the House of Representatives. So why does it matter? Well the Founders saw this. They thought this would happen. So what they did was they made it so the house or reserves couldn't really do anything. House of Representatives is subject to the whims of the people. So if anti-Masonic party is really popular for two years, guess what they can take some seats in the House. But if they took every seat that was up for them in the Senate they could never control more than a third of the Senate. The House is there to represent the whims of the people. The Senate is there to make sure that the people can't  actually get anything done.  Now that's inefficient of course. But that's exactly the way the founders set things up. The people can pass whatever they want in the house and it'll die in the Senate.



Hannah McCarthy: So it sounds like Dan is saying the senate is...should I say superior? Superior to the house?

Nick Capodice:I don’t know! I mean, the house does get some bills out there. I’ve gotta be fair, but Dan told me that number it’s like 9%.

Hannah McCarthy: Wow

Nick Capodice: And most of them are pretty uncontroversial bills.

Hannah McCarthy: So like naming a holiday or something like that

Nick Capodice: Yeah. And in the Senate honestly it’s not too much better right now, it’s about 15% of bills proposed in the Senate become law. But back in the 60s it was much higher, over half of Senate bills became law.

Hannah McCarthy: I want to know what they think of each other, does the House have an inferiority complex?

Nick Capodice: Well let’s see what they have to say for themselves. I got a former senate staffer, Justin Leblanc



Justin Leblanc: We jokingly often refer to the House and the Senate with reference to what the British Parliament calls them and that is obviously the House of Commons and the House of Lords. The Senate chamber itself is I think very austere. You feel like you're walking on sacred ground.


Nick Capodice: And a former house staffer, Andy Wilson


Andy Wilson: Despite the House and the Senate being coequal branches of government, there's very much a feeling of the Senate is sort of the upper chamber


Hannah McCarthy: Wait, are they coequal?

Nick Capodice: They are, but that doesn’t stop the sense that one of them is more ‘uptown’


Andy Wilson: It's more stately it's more dignified etc. So there's sort of a different feeling about even the Senate side of the Capitol complex versus the House side.


Nick Capodice: Justin and Andy have both left congress since, Justin is now the founder and president of Lobbywise, and Andy works for a PR firm in NYC.


Andy Wilson: Well I'm I'm a House guy so I quite enjoyed the the free flowing nature of the House. Other members other people that might have worked in the Senate might might feel more proud of having sort of that stately Senate vibe. But I like the House.


Hannah McCarthy: I think I might be a house gal

Nick Capodice: It sounds like a little more fun, doesn’t it? Look, I want to make it clear, Andy and Justin were in no way throwing shade towards each other’s chambers, but there is some good-natured ribbing that goes on.

Hannah McCarthy: So I’ve got a good feel for their differences due to size and term length, but what are the specific differences in their powers?

Nick Capodice: here’s what Justin said about that.


Justin Leblanc: I think the most significant difference between the Senate and the House really comes down to two things. While they both have to pass legislation and they have to pass the identical legislation in each chamber before it can go to the president for signature into law, only the Senate has the the constitutional responsibility and authority to advise and consent the White House on treaties and so any treaty agreed to by the White House has to be approved by the United States Senate. The House does not have such similar authority.


Nick Capodice: And not just treaties, but the senate confirms all Presidential appointments; cabinet secretaries

Hannah McCarthy: Secretary of state, secretary of defense, etc?

Nick Capodice: Yeah, and ambassadors, and Supreme Court Justices.


Justin Leblanc: And then on the flip side all appropriations measures that is all measures that fund the federal government,  those let, those bills must begin in the House. The Senate does not  have the authority to initiate an appropriations process.


Nick Capodice: This has a fun name by the way, the “Power of the Purse”, the framers wanted the House, the voice of the people, to be dominant when it comes to how we tax and spend money. The Senate cannot make money bills. But besides, money, there’s also impeachment powers. Here’s Cheryl Cook Kallio again.


Cheryl Cook Kallio: The other specific job the House of Representatives have is that any articles of impeachment for any elected federal official goes through the House of Representatives. If they are if they are passed in the House of Representatives, the trial is held in the Senate. That's a specific job of each house.


Nick Capodice: Voting is different, too.


Andy Wilson: In the House. It's a majority rule. So in order to pass a piece of legislation in the house it's 50 percent of the votes plus one. So if you know if the Republicans have a 20 seat majority they can basically do whatever they want whereas in the Senate people might be familiar with the filibuster which frequently requires 60 votes for something to pass.

60 percent of the of the Senate has to agree for something to be passed which requires a great deal of consensus a greater deal of coalition building even once a party is in majority they may not have enough to pass that 60 vote threshold. And so you have to work with the opposing party or at least some members of the opposing party. So it's much more of a collegial feeling in the Senate versus sort of our side versus your side view and feeling in the House of Representatives.


Hannah McCarthy: It kinda sounds like the filibuster, which we kinda think of as a strongarming tactic that gets in the way of things, .it sounds like it actually forces people to reach across the aisle and work together.


Nick Capodice: Yeah, and it’s totally different in the house.


Dan Cassino: The House of Representatives has 435 voting members. Now the problem is that’s so many people that you’re never gonna be able to wrangle all of them, if you let everybody talk, they're never going to shut up.  There's one thing politicians love it's the sound of their own voice. As a result the House of Representatives is incredibly tightly controlled. Everything that happened the House Reps as first has to go through what's called the Rules Committee, a Committee that doesn't even exist in the Senate


Hannah McCarthy: What?

Nick Capodice: I know, they don’t have a rules committee


Dan Cassino: and the Rules Committee is going to decide for any bill that comes out of committee, if that bill is ever gonna make it to the floor or not;  what terms that bill would be argued under and how much debate you' re going to have. Now we say how much debate you might be thinking to senators, two representative to come up and debate and talk back and forth but that never actually happens outside of Hollywood and in the House of Representatives, the most common rule we get is what's called a closed rule meaning there's gonna be no amendments allowed whatsoever. And they’re gonna allow somewhere around 15 minutes of debate. So you get 15 mins of Republicans talking about the bill 15 minutes of Democrats talking about the bill and then you're going to have an up or down vote on the bill. And that's all you're going to get because if they actually allowed amendments, you have all these radicals from both sides there. Nothing is ever going to happen. They’ve basically given up on trying to build consensus in the House of Representatives. House of Representatives is all about mobilizing your party in ramming through whatever you can. And the Speaker of the House because of that becomes enormously powerful if the Speaker of the House doesn't like a bill that bill is dead.


Nick Capodice:  Failure to act on a bill is the equivalent of killing a bill. So the Speaker of the house can just refuse to allow any bill to come to the floor, so it will never be voted on. Unless you do something called a ‘discharge petition’ but that’s gotta be in another episode.

Hannah McCarthy: Gotcha.


Dan Cassino: So the Senate is supposed to be this great debating place where all these members stand up and actually talk to each other and have back and forth and unfortunately that basically never happens. If you watch C-SPAN or C-SPAN or C-SPAN 3 or C-SPAN history if you're a real nerd, if  you ever watch the C-SPANs you'll notice they focus on the person who's talking and never focus on anyone else. They don't show you who's in the gallery. The reason they don't show you that is because there's nobody else. When the members of Congress are speaking. They are in fact talking to themselves. Nobody else is hanging out. Why not? Because they've got other stuff they need to  be doing, either go in a committee hearing or they're raising money which a lot of members of congress spend up five six hours a day doing.


Nick Capodice: And this is something both Houses have in common. Campaigning , a lot. Five to six hours a day to stay in office. Here’s former state rep and CNN political analyst Bakari Sellers;


Bakari Sellers: Let me just say that when you're in the House of Representatives the campaigns never end. You're in a perpetual sense of campaigning because it's that two year period.  You don't stop you don't take a reprieve you win an election and you and you move on to the next elections.  


Dan Cassino: If you want to run for the House the big thing you have to have is name recognition in your community, in a relatively small community 700,000 people for most House seats. You have to people have to know who you are and you have to be able to knock on doors and mobilise people to knock on doors for you.


Nick Capodice: What does it take to campaign for senate?


Bakari Sellers: If you're campaigning for the United States Senate you should have been campaigning your entire life. And there's no there's no waiting until the filing period. And I love to see that you had these like billionaires or millionaires who, or people who have this amazing sense of self and they wait until the filing period which is usually like March for June or July or August primary and they think they can just parachute in and run a race and spend money on TV.


Dan Cassino: If you want to for the Senate the big thing you need is either be really rich yourself or to know a whole lot of rich people because that Senate race is gonna  cost you tens of millions of dollars and you're never able to knock on enough doors. So the types of candidates you get are going to be very very different. This is also one of the reasons why we see a lot more women running for the House than we do for the Senate. While women are able to mobilize other voters just as well as anyone else they actually have a harder time raising money because they don't necessarily have the business connections because of lots of other things going wrong in our society. They'll let them easily run for the Senate.


Nick Capodice: And that doesn’t just effect gender in the Senate


Bakari Sellers: It's you can literally still count on less than two hands. But you know if you go back in history and you're talking about Ed Brooke and Mo Cowan and Carol Moseley Braun and Cory Booker and Kamala Harris and Tim Scott. I just ran through... there may be one that I'm missing or two but I just ran through the African-American members of the United States Senate in history. And so it's a very it's a very deliberative body. But it's also a very old white male body as well. Usually there's a sense of patriarchy that puts you in a position to run for that office.


Nick Capodice: And going by the numbers he’s right, as of this recording, October 2018, there have been 10 total African-American US senators. Ever.


Hannah McCarthy: So 10 total in the history of the country


Nick Capodice: Ten total in the history of the US. Currently the senate is 1/50th African-American but by contrast the house is 10% African-American, so it’s a huge difference.


Hannah McCarthy: Yeah it is huge.


Nick Capodice: I asked Justin and Andy, former congress staffers,  for their final thoughts on both Houses and the system as a whole


Justin Leblanc: The elected officials your elected officials and their staff work incredibly hard and they're they're not particularly well-paid and they're working long hours. Most senators and their staff are in the office from 7:00 or 8:00 in the morning until 9 or 10 at night every day of the week. And when they when they go home they're working all weekend. And when we talk about congressional recesses that is times where the House and the Senate are not actually in session and can't vote on legislation, they're not on vacation. Their staff are still showing up on the Hill every day to do their jobs. And the members are back in their states continuing to work. And so whether you agree or disagree with the policy positions your elected officials may take, I would never accuse any one of them or their staff of being lazy or not hardworking.


Andy Wilson: Sometimes it's easy to look at the House of Representatives or the Senate or the Executive branch and think of it kind of like a machine. It's just this big bureaucracy that exists and it kind of churns on and on and on. But it's really a very human enterprise. It's really about how do you work with your colleagues. How do you have relationships with them. And you know who do you know well do you work with well et cetera. So it's very much a human enterprise. The second piece which follows off on that is its own the system is only as good as the people that are involved in it whether that's voting whether that's running for Congress or whether that's working as a staffer, whether that's getting involved in local political debates or local government issues, state government issues county government issues et cetera. So it's easy to sit back and say these bums don't do anything or they're good for nothing or something like that but it's really just a bunch of people that are elected by people in states and districts across the country. And so if you have a complaint or if you have a priority then the only way to to push for it or the only way to make a difference or make things different is to get involved and you can do that.


Hannah McCarthy: I have one last question

Nick Capodice: What is it?

Hannah McCarthy: It...I mean it just all sounds so ridiculous.  Senators talking to an empty room, the House not even debating, everybody stopping anything from getting done

Nick Capodice: Yes, so that was my final question for Dan, it sounds like the whole thing is broken. That it is a farce, that it doesn’t work. Is that true?


Dan Cassino: Even though all this is absurd all the we were doing things and passing bills is absurd it doesn't make any sense, this is exactly the way the founders wanted it to work. The mechanisms like cloture and filibusters and gerrymandering, none of that was forseen by the founders, but the general principle, the house is subject to the whims of the people, the anti  Masonic party the Tea Party whatever, they get in there. They pass crazy bills that should never work and they're allowed to do that because that's what the people want and then it goes the Senate and the Senate doesn't do anything. And that's exactly the way the whole system is supposed to work. The Senate is supposed to be the branch of government that stops anything from ever actually happening. And today we view that as a bug we think that's a bad thing we want our government to be really much more efficient. The way you see parliamentary systems working in most the world. But our government is not set up to be efficient. It's set up to be inefficient. It's set up to make sure that no big change can actually happen unless the voters for years on end, four six years all are voting in support of this and all three branches of government are in accord with it. It's really easy to kill a law. It's almost impossible to pass one.


Hannah McCarthy: I’ve never considered that inaction could be a comforting thought.

Nick Capodice: Me neither, and sometimes I need to be reminded that this machine has human hands at the wheel

Hannah McCarthy: Yeah

Nick Capodice:Well, before we go we have our snapshot midterm from us history, delivered by none other than Brady Carlson, former NHPR reporter, current afternoon host at Wisconsin Public Radio, and the author of Dead Presidents.


Brady Carlson: Today we’re talking about the midterm of 1894. It’s not a very well known midterm, but if you wanna talk about a wave election, this was the wave election to end all wave elections. Up to this point, the democratic party had majorities in both the House and the Senate. They had won back congress in the 1892 election when Grover Cleveland had won back the White House from Republican Benjamin Harrison. This is when Grover Cleveland became the only president to serve two non-consecutive terms, so this was his moment with destiny.


A week before Cleveland came back to the presidency, there had been a financial collapse in the railroad industry. And that sort of tipped off the domino train. A number of key industries fell and the market fell as a whole and this is what was later known as the Panic of 1893.


So the Democrats have just returned to power, they’ve got the White House, they’ve got majorities in congress, and the economy falls apart. People were calling on the president to do something about the panic, there was even a march on Washington. Grover Celeland saw himself as what’s sometimes called a Guardian President. His thinking was Congress steers the ship of state, the president really only steps in to administer the laws and to stop congress when they go too far, so he didn’t really think it was up to him to get in the way of the economic cycle and intervene in the economy.


The catch was that a lot of the people who had put him back in power were workers, immigrants, farmers, the people who were being hurt by the panic. And at the same time in 1894 there was a very prominent railroad strike, the Pullman Strike in which hundreds of thousands of railroad workers walked off the job. They had had their wages cut and they were protesting. And this is the time where the president thought he should step in, so he sent Federal troops to break it all up and that got plenty of pushback, though as a conciliatory gesture he proposed  the holiday in honor of workers that we now call Labor Day.


So it was sort of a way to get everybody to feel like they had been heard even when they maybe quite hadn’t been.


In the midterm of 1894 Cleveland and the democrats had 220 seats in the House and they lost 113 of those. The biggest loss in history. And then they also lost enough seats in the Senate, not nearly that many, but they lost enough in the Senate to  lost majority control there, so they went from having all the power to almost none of the power, and they wouldn’t regain those majorities in congress for almost two decades. So it was really a political version of what goes up must come down.


 It was really a case where people were saying; we blame you for this and we are going to put other people in power because we don’t think what you’ve done is the right policy and the right way to handle this economic crisis.


Nick Capodice: Thank you Brady for the story of the greatest lost in midterm history. Today’s episode was produced by me, Nick Capodice and Hannah McCarthy.


Hannah McCarthy: Our staff includes Ben Henry and Jacqui Helbert, our Executive Producer is Erika Janik, Maureen McMurray is totally a House Gal.


Nick Capodice: Music for today’s episode comes from Blue Dot Sessions, Creo, Broke For Free, Jahzzar, and Electric Needle Room. Special thanks to one of the NICEST greatest member stations out there, WOVV in Okracoke


Hannah McCarthy: More midterms prep is coming down the pipe, so be sure to subscribe! You can also say hi and listen to all our episodes at


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





Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Midterm Edition: State and Local Elections

Midterm elections don't have the glitz or drama of presidential campaigning. They're full of aldermen and comptrollers, state senators and governors. These offices seem meager next to national government. But most of the time, it's state and local officials that have the most immediate and palpable impact on our lives and on our future elections.



Episode Segments



Midterm Edition: State and Local Elections


Hannah McCarthy: [00:00:00] Nick as you know in our last episode we talked about what midterm elections are and why they matter. You know all the sweeping implications stuff how midterms can affect the country with congressional redistricting and this referendum on the president and potentially flipping the House and the Senate and infusing Congress with all of these new ideas and setting the stage for massive change.

[00:00:23] But today I want to think small.

Nick Capodice: [00:00:28] Small like what kind of small?

Hannah McCarthy: [00:00:30] Small like local small.

[00:00:33] Let's start with the town up north in New Hampshire with about 7000 residents that is small. In August I drove up to Plymouth New Hampshire. It's a little college town in a place called Grafton County really charming. There's a town green with a gazebo and old timey diner Covered Bridge of course got a covered bridge.

[00:00:54] It's very New England and across the street from the town green in what used to be a bookstore is the office of the Plymouth area Democrats.

[00:01:06] So that's the sound of people doing the wave.

Nick Capodice: [00:01:09] Which wave.

Hannah McCarthy: [00:01:09] The blue wave.

[00:01:13] There were campaign signs leading up against the wall they had a life size cutout of Obama.

[00:01:18] There was a potluck party atmosphere in the room and I was there to meet this gentleman.

Jeff Steigler: [00:01:25] My name is Jeff Steigler and I am currently the police chief in Bradford Vermont.

[00:01:30] I am currently campaigning for Grafton County Sheriff.

Hannah McCarthy: [00:01:33] Jeff lives in New Hampshire but works just across the border in Vermont.

Jeff Steigler: [00:01:37] This is the first time I've ever asked the public for their support and obviously for their vote on both the primary and hopefully the general election. Also Franklin

Hannah McCarthy: [00:04:16] This was a Grafton County candidate night. The second one that week and Jeff was there to introduce himself and to convince people to vote for him in the New Hampshire primary and to explain exactly what it is that a sheriff does.

Jeff Steigler: [00:04:29] It's actually a constitutional position stage in the state constitution. But any of your listeners could Google are say one of four and you'll see what the primary functions but at the core of what the sheriff's department has to do.

Nick Capodice: [00:04:40] So did you google it.

Hannah McCarthy: [00:04:41] Of course I googled it.

Nick Capodice: [00:04:42] What did you find out.

Hannah McCarthy: [00:04:43] Well first and foremost in New Hampshire we call laws are essays. It stands for Revised Statutes Annotated and our essays include what amounts to a job description for elected officials. For example how an elected sheriff can and ought to lay down the law. They transport prisoners deputise bailiff's.

Nick Capodice: [00:05:02] Bailiffs like bull in night court.

Hannah McCarthy: [00:05:04] Right okay there you go.

[00:05:05] Yep bull was probably deputized by the sheriff. Until I spoke with Jeff Stigler.

[00:05:10] I really didn't know what a sheriff did or frankly the difference between county sheriff and local police chief. But every time I voted for a sheriff I was voting for someone who has major responsibility and it's the same deal with everything from governor to school board members to comptroller.

Nick Capodice: [00:05:26] What actually is a comptroller by the way?

Hannah McCarthy: [00:05:27] They're kind of like a state's chief financial officer. But the point is that there are a lot of obscure offices on the ballot and they can seem insignificant next to federal candidates like who cares about the railroad commissioner when you've got some flashy Senate race going on.

Nick Capodice: [00:05:41] Oh I have a feeling that we care we care.

Hannah McCarthy: [00:05:43] This is Civics 101 a refresher course on the basics of how our democracy works. I am Hannah McCarthy.

Nick Capodice: [00:05:49] And I'm Nick Capodice.

Hannah McCarthy: [00:05:49] And today we continue our five part series on the inner workings of midterm elections. But a closer look at the local and state offices you'll be voting on this November like Sheriff judge and governor. They may go by different names depending on where you live. But either way state and local offices can have a big time impact on your life.

Cheryl Cook-Kallio: [00:06:08] The issue with midterms is that I think we train people to be very hyper focused on national elections but most elections that are local are closer to the people.

Hannah McCarthy: [00:06:18] That's Cheryl Cook-Kallio, former high school teacher.

Nick Capodice: [00:06:20] For 39 years.

Hannah McCarthy: [00:06:22] And former Councilwoman and former candidate for California's state assembly.

Cheryl Cook-Kallio: [00:06:26] Will our house in California is called the Assembly and there are different names in different states.

[00:06:31] Most of them are House of Representatives but in California it is the Assembly.

Hannah McCarthy: [00:06:35] And she says that yes of course it is important that we have good Congresspeople and good senators.

[00:06:40] But.

Cheryl Cook-Kallio: [00:06:41] But whether or not you get a stop sign at the end of your street is really dependent on the kind of city council you elect county supervisors have control over regional issues that have to do with transportation and maybe even water. And so midterms are often ignored because there is no presidential candidate but they may be even more important because there's such a low voter turnout during a midterm election.

Hannah McCarthy: [00:07:04] So think of it this way. What is more likely to affect you. Nick capital on a daily basis theU.S. defense budget or the road in front of your house.

Nick Capodice: [00:07:11] I'm going to definitely say the road.

Hannah McCarthy: [00:07:13] It's the road the.

Nick Capodice: [00:07:13] It's the road.

Cheryl Cook-Kallio: [00:07:15] One of the things that an individual can do is pay attention to those things are most important to them. In most cases that's local politics your school board your inner city council county supervisors and perhaps your state legislature depending on the size of the state.

Hannah McCarthy: [00:07:29] So many of the people who keep your city or your town running smoothly or possibly not so smoothly get elected during midterms. You've got school boards for instance they can set school policy. Decide how the money gets spent. Even decide whether or not to close a school you've got county commissioners who can be in charge of everything from assuring water quality to collecting property taxes some even control public welfare programs and Nick judges. We vote for the people who are in charge of sentencing people to fines probation even prison in many cases. It is in our hands to decide who gets to make those decisions.

Nick Capodice: [00:08:08] What about something like the Register of Deeds.

Hannah McCarthy: [00:08:11] Yes I was so curious about register.

Nick Capodice: [00:08:13] We've seen signs for that all over the neighborhood.

Hannah McCarthy: [00:08:15] Everywhere.

Cheryl Cook-Kallio: [00:08:15] Oh Register of Deeds. OK. That's probably what we would call the clerk which has to do with all the paperwork in your life that is important your marriage your births the deed to your house those kinds of things are done and usually that's controlled by someone who is elected. So there are things like this that may or may not affect you on a daily basis but they certainly control the legalities of what you do in your everyday life.

Nick Capodice: [00:08:39] Nick what gets me about all of what Cheryl is saying is that you know when we complain about government and inefficiencies and taxes and all that stuff I feel like most of us are directing that complaining that I are at the federal government. You know the whole joke. Thanks Obama.

Nick Capodice: [00:08:56] Yeah.

Hannah McCarthy: [00:08:57] You think we're mad at the president we're mad at the federal Congress. And then there's this vague sense that the people at the very top are the ones who make things good or bad for us. But a lot of the structure in our lives is controlled at the state and local level.

Nick Capodice: [00:09:11] So basically it seems like we should be paying as much attention to these smaller elections in offices as we do to day the presidential election.

Hannah McCarthy: [00:09:19] Yeah I mean powers vary from state to state. But I would say at least as much like take the sheriff candidate Jeff Stigler who we met at the beginning of the episode if he wins the midterm he'll essentially be public he appointed law enforcement for an entire county races like that probably deserve more attention than they get. But there are offices up for election and midterms that do get some real attention like Governor.

Nick Capodice: [00:09:42] But what does a governor actually do.

Hannah McCarthy: [00:09:44] Or a lieutenant governor.

[00:09:45] For that matter.

Bakari Sellers: [00:09:46] This is very difficult for me. You take somebody who just lost the lieutenant governor's race and ask him about his the job that he could have had you know not only is it difficult I want to tell you how sharp that hurt because my lieutenant governor is now governor.

[00:09:57] OK.

Hannah McCarthy: [00:09:57] That did not start well. This is Bakari Sellers, attorney and former state rep of South Carolina he was in office for eight years and ran for lieutenant governor in 2014. He lost but he had some insights on the positions.

Nick Capodice: [00:10:07] Do you think he was really offended by that.

Hannah McCarthy: [00:10:09] I don't think so. If he was you forgive us.

Bakari Sellers: [00:10:11] I know it was tough. Now Lieutenant Governor and Governor. They. They are different in every state. We now have. If I'm not mistaken two African-American lieutenant governors in the country. So we are making progress on that front. Governor of course depending on your state we have a legislative state here in South Carolina meaning that really our legislature is way more powerful than our governor is but in certain states it's the other way around although the governor has a bully pulpit right.

Hannah McCarthy: [00:10:34] So in the same way that the President is Chief Executive Officer and commander in chief of the country the governor plays that role for the state so they can veto bills just like the president appoint judges just like the president. They may be in charge of the state National Guard or have the power to pardon criminal sentences. And just like the president most governors have someone waiting in the wings in case things go south.

Bakari Sellers: [00:10:59] Lieutenant governors a lot like vice president in the most important job they have is to be prepared. And why do I say that they have to be prepared because just like the vice president of the United States the age old saying is you are one heartbeat away from being president.

Nick Capodice: [00:11:13] So governor and lieutenant governor are a little like the president and the vice president. If their powers were limited by state borders.

Hannah McCarthy: [00:11:19] Yeah and Bakari says these are really important roles to watch because the person who you elect governor in this year's midterms they might end up being on a different place on the ballot later on when you have a governor.

Bakari Sellers: [00:11:29] You have to think that your governor has only one election away from running for president the United States. In Massachusetts you've had Mitt Romney run for president the United States.

Nick Capodice: [00:11:37] Lots of presidents were governors before the presidency Thomas Jefferson Teddy Roosevelt Jimmy Carter George W. name a few.

Bakari Sellers: [00:11:43] But you see governors run all the time. You're going to have a series of governors who step out there and run for president the United States and so when you each step up that you take there's another realm of possibility.

Hannah McCarthy: [00:11:53] That's one area of the ballot that we have not touched on yet. Right. State legislators and they are really important. It varies from state to state. Who in your state legislature you get to vote for in every midterm election. But who you're voting for is really important because aside from actually making the laws that govern you at a state level those legislators are in charge of a process that can decide the outcome of elections.

Dylan Scott: [00:12:16] State elections are not only important for your health care and for your education but also 2018 in particular is important in 2020 will be important as well because next decade we're going to draw new congressional districts which will be the opportunity for to outline these new maps for the congressional districts that we'll have for the next 10 years.

Hannah McCarthy: [00:12:35] That's Dylan Scott Vox policy reporter.

Nick Capodice: [00:12:37] Quick aside. Congressional redistricting sometimes called Gerrymandering depending on who you're talking to is one of those key factors that make these 2018 midterms so important.

[00:12:47] And it's something we actually dig into our first episode five things you should know about the midterms so give it a listen.

[00:12:52] Gerrymandering is a party hand picking their voters.

Dylan Scott: [00:12:54] And so which party is in control of the governor's mansion. Which party is in control of the state legislature will be very important for redistricting starting in 2020.

Hannah McCarthy: [00:13:03] You know some states like California they do have a redistricting commission that's either bipartisan or nonpartisan. But for the most part it's the governor and the state legislature that are calling the shots.

Dylan Scott: [00:13:14] And I think any expert whether partisan or not would tell you this. One of the reasons the Republicans have the sizable majority that they do in the House of Representatives right now is that they were in control of redistricting almost 10 years ago. So not only is this important for people's everyday experience with government and whether they are eligible for Medicaid or what kind of schools their kids go to. But when you look at control Congress it's it's not much of a stretch to say as one of my colleagues wrote recently that the next decade of the House of Representatives will be on the ballot in 2018 and 2020.

Hannah McCarthy: [00:13:45] OK we get a pause here for one second. Because what he's saying is huge. He is saying that your vote in this midterm election may end up deciding who you get to vote for for the next 10 years. I mean think of the possible reverberations of that.

Nick Capodice: [00:14:00] It's more than time because the people who put in power stay in power they keep drawing districts for the next 50 elections.

Hannah McCarthy: [00:14:05] Could be the next hundred elections.

[00:14:07] Dylan also made the point that those state legislators have the power to either facilitate or block initiatives that are coming down from the federal level like theU.S. Congress can say jump in a state Congress can either say how high or they can thumb their noses and stick out their tongues at them.

Dylan Scott: [00:14:22] So under the Affordable Care Act it expanded Medicaid eligibility to cover millions more Americans than it did before the ACA was passed. But they were allowed to decide whether or not they wanted to practice debate and that Medicaid expansion in about 20 states have refused to expand Medicaid directly as a result of the Republican controlled state legislatures or or the governorship.

Nick Capodice: [00:14:44] That's some real Tenth Amendment action their 10th Amendment of course being a super complicated amendment about the division of power between the federal government and the states right.

Hannah McCarthy: [00:14:52] So the whole principle of states rights how states are allowed to govern themselves in many ways. That is a big part of what makes the midterm elections so important. Those are elected officials who are close to us who might have obscure sounding jobs. They actually have the power to make a big impact on our daily lives. It's often the state level legislature that maintains this state justice system that regulates state industry that maintains highways implements welfare decides what to teach kids in schools. And it's the state legislature that decides what a sheriff does and we get to decide who that sheriff is.

Jeff Steigler: [00:15:30] If you're looking for change or if you are thinking about keeping things the way that they are the reality of it is if you don't go out and vote don't complain about it.

Hannah McCarthy: [00:15:37] That's Jeff Stigler again our sheriff candidate from the beginning of the episode. He won the nomination in New Hampshire's primary and now it is up to the voters to decide if he will win the office.

Hannah McCarthy: [00:15:47] All right. Nick so what do you think. I mean state and local elections are kind of a big deal right.

Nick Capodice: [00:15:51] In some ways possibly the biggest deal.

Hannah McCarthy: [00:15:55] Now you're talking before we sign off we have another major midterm from the past brought to you by Brady Carlson.

[00:16:01] BRADY used to work here at NHPR as a reporter and on air host. He's now at Wisconsin Public Radio.

[00:16:07] He's also the author of Dead Presidents which is a great book. Check it out. Take it away. BRADY What midterm are we talking about.

Brady Carlson: [00:16:14] I'm talking about the midterm of 1858. The key issue in the 1950s of course was slavery and that's at the root of everything that takes place in the 1858 midterm up until the 1950s.

[00:16:25] There were two parties the Democrats and the Whigs although really there were kind of four parties because each of the two parties had northern and southern wings. And here's why that matters. While the northern states had more population and therefore more representative Congress the proslavery Southern politicians were still powerful enough that they could block candidates block bills block proposals block anything that didn't fit with their view that enslaving people was not only legal and constitutional but it was morally right and had to be protected.

Archival: [00:16:54] All we've got is cotton and slave arrogance.

Brady Carlson: [00:16:57] To the top political figures of the day rightly or wrongly we're trying to keep this very tense compromise in place and as a result of that effort to to keep the slavery debate from boiling over you have this series of weak presidents in the 1950s.

Archival: [00:17:12] Pierce of New Hampshire is what do you say Mr. Pierce or Mr. Preston Pierce just Mr. President.

Brady Carlson: [00:17:16] James Buchanan of Pennsylvania is another. The parties were deliberately choosing people for president that they thought would be very cautious would not rock the boat and that would have worked except by the 50s the boat had kind of already been rocked over and over. Fewer and fewer people were interested in setting aside this debate over slavery for the good of the country and Franklin Pierce understood that firsthand when he signed the bill to allow the citizens of the Kansas Territory to choose whether to allow slavery or not. And I came all the way from Kansas to make sure just for you.

Archival: [00:17:54] And to ensure the freedom of Negroes in this state. What do you do.

Brady Carlson: [00:17:58] And it didn't go well it turned into the violent conflict. We now called bleeding Kansas and that's recognized today as one of the key milestones on the road to the civil war. It also realigned the political parties by signing Kansas bill Pearce had undone this compromise that had stood for decades where there was a geographic line that slavery could exist south of but never north of. Now slavery could be anywhere and Northerners were very very uncomfortable with that. So when Pierce undid this compromise Northern Democrats who had been uncomfortable with the proslavery wing of the party felt like they didn't have a political home anymore.

Archival: [00:18:37] The government cannot endure permanently half slave and half. Free.

Brady Carlson: [00:18:52] The Northern Democrats decided to leave their party and join up with what was left of the old Whig Party and a group of what were known as Free spoilers people who had opposed any expansion of slavery in western territories. They all joined together in a new party called the Republican Party. There's a lot of debate as to where the Republican Party actually started. My state Wisconsin has one of the claims. The state of New Hampshire has the other. The important thing to know is that this is a very exclusively northern party. There weren't any Southern Republicans and that one of the new Republicans who was an unknown at the time of the party's founding wound up being a pretty important guy a lawyer from Illinois who had been a little known member of Congress like a decade before but was so upset about Kansas that he came out of retirement and joined this new political party Abraham Lincoln.

Archival: [00:19:43] You know who I am. Abraham Lincoln.

Brady Carlson: [00:19:50] The party starts in 1854 two years later their presidential candidate John C. Fremont only narrowly lost the presidential election.

[00:20:00] By the mid-term elections of 1858. The party was on an even bigger upswing. The debate over Kansas has flared up again. It was even hotter this time. There had also been a big economic panic the year before and the new President James Buchanan was alienating just about everybody who came in contact with. Suffice to say voters were pretty fired up and so when the votes were in for the 1858 midterm the largest party in the House of Representatives was the Republican Party which had only begun about four years earlier. And one of the most surprising stories that came out of the 1850 and that term was Abraham Lincoln who had run for a high profileU.S. Senate seat in Illinois. It's one he lost to the longtime incumbent Stephen Douglas. But he had turned so many heads with his speeches in his well-thought-out debate points.

Archival: [00:20:53] A house divided against itself cannot stand.

Brady Carlson: [00:20:53] That he became a national political figure in two years.

[00:20:57] This political nobody who belonged to a brand new unknown party would be elected president of the United States.

Hannah McCarthy: [00:21:09] That is it for this episode in our five part series on midterm elections. But stay tuned we've got more coming at you civics 21 one was produced today by me. Hannah McCarthy Nick Capodice and Jacqui Helbert.

Nick Capodice: [00:21:22] Our executive producer Erica Janik. Maureen McMurry is a local gal does good.

Archival: [00:21:26] Music in this episode by Loopez, Blue Dot Sessions, Quincas Moreira and Drew Banga.

Nick Capodice: [00:21:32] In addition to subscribing to our podcast you can give us a visit at Civics 1 0 1 podcast dot org or follow us on Twitter at Civics 101 pod Civics 101 is production of NHPR new Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

Special Announcement and IRL2

First off, our next season of Civics 101 will launch this October with a special miniseries on the midterm elections. Each episode will better educate you on what you're voting for in November, and will include a breakdown of the wide-ranging effects of a midterm in US history.

Second, this is a rebroadcast of IRL2, our episode on the history of the American flag and the Pledge of Allegiance, focusing on times these icons were used in protest.



Hello Civics listeners. This is Nick Capodice

And Hannah McCarthy

And the more observant of you out there may have realized that we’re taking a pause on producing new episodes

It’s not sloth, it’s industry

We’re developing our next season of Civics 101, which will commence with a five-part series on the midterm elections, featuring the voices of politicians, professors, pages, and civics teachers from across the country.

We’re focusing on things like campaigning and voting, but also the powers of senators, representatives, and all the other people you may see on your midterm ballot.

And each episode will also feature a famous midterm from American history. So don’t miss it. The series will debut on October 2nd, well before you cast your vote. And as for today, here’s an episode we did on the flag and the pledge of allegiance. Enjoy!



Civics 101

IRL2: The Flag and the Pledge


Nick Capodice: [00:00:32] Aw it's that time again. Time for another Civics 101 I R L where we dive into the historic moments related to our regular episode topics. I'm Nick Capodice. And with me as always is Hannah McCarthy.


Hannah McCarthy: [00:00:48] Hey there folks.


Nick Capodice: [00:00:49] Virginia will be back for the next one. This is a supplement to our Episode 79 which is about the U.S. flag code. There was so much to talk about that we had to cut the flag in half.


Hannah McCarthy: [00:00:58] For my half. I'm and do history of the flag history of the Pledge of Allegiance.


Nick Capodice: [00:01:02] Yes. And I'm going to do Supreme Court cases that involve the flag and the pledge.


Hannah McCarthy: [00:01:06] Do you want to start with history?


Nick Capodice: [00:01:06] Yes please.


Hannah McCarthy: [00:01:20] So Nick do you know where the American flag comes from, who designed the American flag?


Nick Capodice: [00:01:27] I was always taught Betsy Ross sewed and designed the first American flag.


[00:01:33] That is the prevailing history. But as it turns out there is no written documentation that this is the case. The story actually comes from Betsy Ross's grandson. He goes to the Historical Society of Philadelphia and he says my grandmother designed the American flag what and all that he has is testimony from Ross family members. You know the thing is that Betsy Ross was a flag maker in Philadelphia through the late 1770s. So she was probably sewing American flags. But this idea that she came up with the design the 13 stars in a circle, there's no real evidence aside from the Rosses insisting that this was the case


Nick Capodice: [00:02:19] And they don't have that, they had no evidence to like back it up?


Hannah McCarthy: [00:02:22] No written documentation you know,.


Nick Capodice: [00:02:23] Is that true?


Hannah McCarthy: [00:02:24] That she didn't design the flag?


Nick Capodice: [00:02:26] Yeah.


Hannah McCarthy: [00:02:27] I am not going to say for sure because it's possible right? But all that you've got are affidavits from her family members. So if Betsy Ross didn't design the American flag


Nick Capodice: [00:02:38] Who did?


Hannah McCarthy: [00:02:39] That's a good question. Some historians not all believe that it was a man named Francis Hopkinson. And there's good reason to believe him but that idea that he designed the American flag is based entirely on the fact that he claimed to have designed the American flag. So once again you're running up against this. There's no written proof that this person designed it.


Hannah McCarthy: [00:02:59] The reason it's more likely to have been Francis Hopkinson is that he definitely helped to create the design of the seal for the University of Pennsylvania the seal of the state of New Jersey and the Great Seal of the United States


Nick Capodice: [00:03:14] So he's a seal man.


Hannah McCarthy: [00:03:15] He's a seal man


Nick Capodice: [00:03:16] Seal guy. He designed the U.S. SEAL and that's enough of kind of like will this guy's got some background in design and probably did this too.


Hannah McCarthy: [00:03:24] In patriotic design.


Hannah McCarthy: [00:03:25] He was a known patriot. So it seems a little more likely.


Nick Capodice: [00:03:29] And real quick you know when this was? Is this around like the...


Hannah McCarthy: [00:03:32] Oh yeah of course. This was in the late 1770ss so 1776 1777. We've got this flag that the Continental Congress is flying


Archival audio: [00:03:49] The alternate stripes indicated a dissention from the king's rule. But the Union Jack indicated a loyalty to the mother country.


Hannah McCarthy: [00:03:50] And now this flag very closely resembles our flag except for the fact that the canton which is that in inner upper left hand corner square


Nick Capodice: [00:04:00] That's called the Canton! The blue square.


Hannah McCarthy: [00:04:02] That's right.


Nick Capodice: [00:04:03] I learned something new today.


Hannah McCarthy: [00:04:04] We already had the 13 stripes and that was actually a very popular design that would be displayed on coats of arms across Europe so that there was precedent for that. The Canton that we had was actually just the British Union Jack. So we had that plus our 13 stripes representing our 13 colonies.


Nick Capodice: [00:04:24] So the many stripes was a trope


Hannah McCarthy: [00:04:27] Exactly.


Nick Capodice: [00:04:27] Yet the number 13 was because of our 13 colonies.


Hannah McCarthy: [00:04:30] It was because of our 13 colonies. We were not strictly flying that British flag we were flying or 13 British colonies flag and we were working toward independence from the British. Now although we cannot say definitively who designed our new flag that new flag on June 14th 1777 was the result of the Continental Congress passing an act that established this official flag of the new nation. So the phrasing of that resolution it is resolved that the flag of the United States be 13 stripes alternate red and white and the union be thirteen stars white in a blue field representing a new constellation. OK I like the constellation. Very nice. So initially we had this flag which had our 13 five pointed stars in a circle in the blue Canton


Hannah McCarthy: [00:05:21] Gotcha.


Hannah McCarthy: [00:05:22] And then as states joined the union we would add both stars and stripes.


Nick Capodice: [00:05:30] What?


Hannah McCarthy: [00:05:30] That's right.


Archival audio: [00:05:30] On January 13th 1794 Congress enacted the law. Giving with us the flag with 15 stars and 15 stripes.


Nick Capodice: [00:05:40] When did we stop?


Hannah McCarthy: [00:05:41] So we actually stopped just after Vermont and Kentucky were introduced we only got to 15 I think.


Hannah McCarthy: [00:05:46] And then they say they realized


Hannah McCarthy: [00:05:49] Thank god then they realized that it was going to be visual chaos on the American flag. If you know they knew that the nation was going to continue to grow they might not have known it was going to get to 50.


Hannah McCarthy: [00:05:58] But just imagine that 50 stars next to 50 tiny little stripes. So in 1818 in their great wisdom Congress passes a law stipulating that the original 13 stripes be restored and only new stars be added Of course


Nick Capodice: [00:06:14] So are there like a couple of 15 striped flags out there?


Hannah McCarthy: [00:06:17] There are. You can actually order one. They still make them. So somebody can say you know this is the flag that we had for this period of time in history.


Nick Capodice: [00:06:25] That's really cool.


Hannah McCarthy: [00:06:26] Yeah. So the flag we know today because the flag has changed so many times. It's actually the twenty seventh iteration of the U.S..


Nick Capodice: [00:06:34] OK so they didn't add a star every time we added a state they like a wait for a couple.


Hannah McCarthy: [00:06:38] Correct. OK. Because we were adding at such a rapid rate. So you have only these 27 different versions of the flag.


Archival audio: [00:06:45] Every star state every state star.


Nick Capodice: [00:06:49] Cool. That's the flag.


Hannah McCarthy: [00:06:50] That's the flag.


Nick Capodice: [00:06:51] Now the pledge is tied to the flag right.


Hannah McCarthy: [00:06:53] So the pledge is tied to the flag but it's also really closely tied to patriotism and the union. And I would say the Americanization of people in this country.


Nick Capodice: [00:07:07] Wow. Can I ask you did you say the pledge when you were in school.


Hannah McCarthy: [00:07:10] I said the pledge every single morning I believe through middle school


Nick Capodice: [00:07:16] Stopped for me in middle school too. I said it in elementary school. So what's up with the pledge.


Hannah McCarthy: [00:07:20] Yeah I'm actually going to start us before the Pledge of Allegiance because we had a flag salute before we ever had a pledge of allegiance. So the original flag salute is by Rear Admiral George Balch. He'd been at West Point he served in the civil war and then later on in his career he finds himself working for the New York City Board of Education and he starts noticing that there are suddenly a ton of immigrant children in classrooms across the city and they don't necessarily sound like native born Americans. They might not think like native born Americans. Because he's encountering these foreign born students, he wants to teach American principles and help them to develop this ritual that could foster an American identity. So what he does is he develops this pledge salute combo where children would salute the flag and speak the following. I give my heart and my hand to my country, one country one language, one flag.


Nick Capodice: [00:08:21] Wow, one language too?


Hannah McCarthy: [00:08:23] One language.


Nick Capodice: [00:08:23] So this was a straight up. This is a guy who wanted America to look and sound a certain way.


Hannah McCarthy: [00:08:30] Yes.


Nick Capodice: [00:08:30] What years are we talking about here.


Hannah McCarthy: [00:08:31] So this is in 1887.


Nick Capodice: [00:08:34] OK yes. So it actually is the height. This is like just near the height of both German and Russian Jewish immigration. The Italians are just starting to come in.


Hannah McCarthy: [00:08:45] Exactly.


Nick Capodice: [00:08:45] So this is when the face the sound of America is changing again in a big way


Hannah McCarthy: [00:08:49] In a big way.


Nick Capodice: [00:08:50] And he's like we've got to put a stop to that. We have to change that. It sounds like.


Hannah McCarthy: [00:08:54] I think there was perhaps a fear of the influence of immigrants if not the immigrants themselves; let them in but make sure they become us. I think it was kind of the idea. So not that long after this fact. We are going to come up on the pledge and this is in 1892 which I believe was the same year that Ellis Island was officially opened for business


Nick Capodice: [00:09:17] Certainly was.


Hannah McCarthy: [00:09:17] And you've got millions of people coming in through Ellis Island. It's a very visible immigration from elsewhere into the United States. Not only that but the country is only 30 years into post Civil War recovery. So this idea of national union is still kind of fragile because we almost broke up you know. So there are some who think that patriotism is kind of sinking in the country too many people who are foreign born are moving in are changing the ways that we think and we speak. And we also are totally certain that we can keep this country together if only because we came so close to losing it.


Nick Capodice: [00:09:58] Right.


Hannah McCarthy: [00:09:59] So there's this man named Daniel Sharp Ford he's the owner of a magazine called Youth's Companion and he was particularly concerned with what he saw as this you know sinking morale in this country the sinking patriotism and he wants to boost it. So one of his employees one of the people who writes for him is named Francis Bellamy. He's a minister and an author for Youth's Companion. And so he asks Bellamy to compose a pledge of allegiance to the flag in hopes that it's going to boost patriotism.


Hannah McCarthy: [00:10:34] And here's the original language of the pledge allegiance.


Hannah McCarthy: [00:10:38] I pledge allegiance to my flag and the republic for which it stands


Archival audio: [00:10:46] One nation, with liberty, and justice for all.


Nick Capodice: [00:10:48] Wow. There's a lot that's changed since then.


Hannah McCarthy: [00:10:50] There's quite a bit that's changed.


Nick Capodice: [00:10:52] I think my flag sounds a bit more inclusive. It's like sort of implying that all these new comers these new Americans you know who are coming here are part of us. That's my flag because I'm here


Hannah McCarthy: [00:11:04] Something that we probably take for granted is that there is an American flag an every classroom. A big part of the reason let's just say that they're in so many classrooms in the United States is that at the same time that Youth's Companion publishes this pledge of allegiance and these instructions for this pledge they start selling flags at cost to about 26000 schools across the country. So then the pledge became really popular and that salute became known as The Bellamy salute. I think they simplified it to just this arm straight outward. You know at a slight angle right level with the forehead which looks just like a Nazi salute. During World War II of course we are seeing photographs and film of Nazis with their arms straight out and we decide maybe this isn't what we should be doing. Hand on the .


Nick Capodice: [00:11:58] Hand of the heart.


Hannah McCarthy: [00:11:58] So that's when that transition happens then revisions start to happen to the pledge itself. So in 1923 my flag is changed to the flag of the United States. So that in 1954 we add the words under God.


Nick Capodice: [00:12:13] Fifty four?


Hannah McCarthy: [00:12:14] Nineteen fifty four. So I think a lot of people grow up thinking that this pledge is kind of as old as the country itself.


Nick Capodice: [00:12:20] I thought it had under God from the 1800's.


Hannah McCarthy: [00:12:23] It sounds like something that would have been concocted in the 1800s. You don't really think that in 1954 that they're going to add the words under God.


Nick Capodice: [00:12:33] Yeah. Like just before the 60s?


Hannah McCarthy: [00:12:36] Things were about to blow up in this country. The reason that happened was because we see communism as this huge threat to this country. Communists are considered godless. Eisenhower signs a congressional resolution to pass under God into the Pledge of Allegiance. But it wasn't just Eisenhower. It's also because of a three year campaign by the Knights of Columbus


Nick Capodice: [00:13:04] The Knights of Columbus.


Hannah McCarthy: [00:13:06] That is the initial history of the Pledge of Allegiance. That's how he got up to the language that we use today.


Nick Capodice: [00:13:12] OK. Wow. So Betsy Ross didn't make the flag


Hannah McCarthy: [00:13:15] we don't even really know who designed it, or rather we can't say for sure.


Nick Capodice: [00:13:22] You ready for this?


Hannah McCarthy: [00:13:23] I'm ready.


Nick Capodice: [00:13:24] Are you. Aren't you excited to hear about some court cases.


Hannah McCarthy: [00:13:26] I'm so excited.


Nick Capodice: [00:13:27] After all of this boring here are two Supreme Court cases about saluting the flag and two about burning it. Number one Minersville v Gobitis, 1940.


Nick Capodice: [00:13:39] William and Lillian Gobitis, they're Jehovah's Witnesses. And this is really important for this story.


Hannah McCarthy: [00:13:44] OK


Nick Capodice: [00:13:45] So this is what I didn't know about the Jehovah's Witness faith. Jehovah's Witnesses view God's kingdom as a government.


Hannah McCarthy: [00:13:53] Oh


Nick Capodice: [00:13:54] Yes. And therefore they refrain from pledging allegiance to any other government.


Hannah McCarthy: [00:13:59] Oh!


Nick Capodice: [00:13:59] And like nationalist songs and dances and parties and anything that's like pro a country is anathema to them because in their faith the country of God is the only country to which they should swear allegiance.


Hannah McCarthy: [00:14:11] That's really interesting.


Nick Capodice: [00:14:13] Yeah. And we see Jehovah's Witnesses pop up again and again because of this


Hannah McCarthy: [00:14:17] Because they can't be patriotic.


Nick Capodice: [00:14:19] Right.


Hannah McCarthy: [00:14:20] It must make it hard to live anywhere.


Nick Capodice: [00:14:22] It's only fitting that these two kids the Gobitis family in Pennsylvania. They refused to say the Pledge of Allegiance and they were summarily expelled from school in 1940. Now it goes up to the U.S. Supreme Court. And it is an 8 to 1 vote for Minersville school district.


Hannah McCarthy: [00:14:38] OK


Nick Capodice: [00:14:39] So the kids were not in their constitutional rights to not say the pledge.


Hannah McCarthy: [00:14:44] On what grounds exactly?


Nick Capodice: [00:14:44] Well it was, it was almost unanimous.


Hannah McCarthy: [00:14:48] Yeah.


Nick Capodice: [00:14:49] The justice who wrote the opinion was named Justice Felix Frankfurter. He's a famed Justice who was on the bench a long time. He said that national unity is the basis of national security. So if we're going to succeed as a nation we have to say that some things are respected. And he went on to say that a pledge for the flag is secular it's not religious it's for your nation. So you shouldn't consider it like that you do of God. Harlan Stone said in his dissent of the case that quote "There are other ways to teach loyalty and patriotism which are the sources of national unity then by compelling the people to affirm that which he does not believe." So we have a Supreme Court who almost unanimously says, hey everybody should go and support the flag. .


Hannah McCarthy: [00:15:34] OK.


Nick Capodice: [00:15:35] Everybody should say the Pledge of Allegiance. What happens after me almost immediately after this decision comes out, a mob of 2500 people burned down the Jehovah's Witnesses Kingdom Hall in Kennebunkport Maine. All the Jehovah's Witnesses in an Illinois town are jailed to protect them from citizens who are rioting. Jehovah's Witnesses are lynched, publicly hanged. And one sheriff said quote They are traitors. The Supreme Court said so. Ain't you heard?


Hannah McCarthy: [00:16:07] Wow.


Nick Capodice: [00:16:07] Three Supreme Court Justices, Black Douglas and Murphy, they stated in another opinion that they'd made the wrong decision.


Hannah McCarthy: [00:16:17] Wow.


Nick Capodice: [00:16:17] So in the wake of Minersville v Gobitis, not only is there a huge surge against Jehovah's Witnesses in the U.S. but there is a surge of flag laws in the U.S. saying you have to say the pledge. West Virginia is one of them. They make it compulsory. They say that if you don't say the Pledge of Allegiance in the morning you are insubordinate. And that law is what brings us to our next case, West Virginia v. Barnett 1943. Maria and Gathie Barnett, Jehovah's witnesses refused to say the pledge, goes up to the Supreme Court but something is different. Something is different in the air of America this time. By 1943 Americans had seen a lot of footage and read a lot of stories of Jehovah's Witnesses being persecuted in Nazi Germany and sent to concentration camps for refusing to salute the Nazi flag. So that, the justices who said that they had made a mistake, all comes together to make a new decision which is a 6 to 3 decision to overrule Minersville v Gobitis. So West Virginia Barnett is a case that makes it within your constitutional rights to not say the Pledge of Allegiance.


Nick Capodice: [00:17:21] Justice Jackson wrote the decision and the famous quote from this one as he said "if there is any fixed star in our constitutional constellation it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism religion, or other matters of opinion or force citizens to confess by word or act their faith therein.".


Hannah McCarthy: [00:17:42] I love that.


Nick Capodice: [00:17:44] And there's no big ones. For a while and then we go to New York City. In the 1960s.


Archival audio: [00:17:50] This is about the first case in the history of our country, where this statue was even used. When Patrolman Copeland made his arrest he did not know that he had made the first arrest in the history of the state of New York for the public burning of a flag.


Nick Capodice: [00:18:06] We're talking about street v. New York 1969.


Hannah McCarthy: [00:18:09] Street.


Nick Capodice: [00:18:10] Street is the guy's name. Do you know about this case.


Hannah McCarthy: [00:18:13] No.


Nick Capodice: [00:18:13] Oh it's such a cool case. Oh my God. I mean the coolest people get involved in Supreme court cases, the coolest stories. So cast your mind back to 1966. The case is 1969 but this happens in 1966.


Hannah McCarthy: [00:18:26] I happen to be rereading Just Kids so I'm there.


Nick Capodice: [00:18:29] Oh you're right there right there. So we're in the 60s and we're in our old friend the Warren Court from Tinker v Des Moines


Hannah McCarthy: [00:18:39] I remember Warren, oh year.


Nick Capodice: [00:18:39] So I wish I had a constitutional scholar to walk me through this and it's radio so we should have someone should say hey did somebody call my name, no but we don't have that but hey we do what we can.


Nick Capodice: [00:18:47] So in 1966 there a civil rights activist named James Meredith. James Meredith is part of a protest, he is walking from Memphis Tennessee to Jackson Mississippi and he's promoting voter registration after the, the Voting Rights Act of 1965. And he's talking about and he's exposing racism across the south and he's trying to encourage African-Americans to vote , you know? And he's shot.


Hannah McCarthy: [00:19:15] Is he killed?


Nick Capodice: [00:19:16] He is not killed. It's comes over the radio across the country, James Meredith has been shot by an unidentified sniper. That comes across the radio and a guy's apartment in Brooklyn. And there's a guy named Sidney street Sidney street is a decorated Bronze Star veteran. He himself is African-American.


Archival audio: [00:19:34] He went out on an American flag with got him to his apartment two way street corner. Put a piece of paper on the street holding the flag in one hand, folded put a match to it and set it on fire.


Nick Capodice: [00:19:50] Then it starts to burn so much he can't hold it in his hand he puts it on the piece of paper he never lets the flag touch the ground.


Hannah McCarthy: [00:19:57] That is.. Anyway go on. So interesting.


Nick Capodice: [00:20:01] and this is really important. A police officer later later testified that he heard Sidney Street say if they did that to Meredith we don't need an American flag. The reason this matters is that New York State had a law had a statute at the time that you couldn't desecrate the flag by words or deed. You couldn't say bad stuff about the flag and you couldn't desecrate it physically. Sidney street is charged with malicious mischief for unlawfully burning the American flag and for saying bad words about the American flag. So this is an absolute squeaker. So what's the decision. It's a 5 4 decision. It's kind of confusing to me.


Hannah McCarthy: [00:20:45] OK.


Nick Capodice: [00:20:45] It's called, it's reverse and remand. It's kind of like


Hannah McCarthy: [00:20:50] What does remand mean.


Nick Capodice: [00:20:51] Remand means you send it back to the lower case for a retrial. Like it's the state's business or it's your business that other courts business.


Hannah McCarthy: [00:21:00] Because it was a state's law.


Nick Capodice: [00:21:01] It was but it's kind of like you guys take care of this. So they the court decides by a 5 4 vote that the law about the words about speaking bad about the flag that is unconstitutional. But when it comes to burning the flag let's just we don't. They totally kick the can on this one. It's a famous can kicking. The court does not decide whether or not it was constitutional for him to burn the flag.


Hannah McCarthy: [00:21:29] Wow.


Nick Capodice: [00:21:29] Yeah. It's kicked down 1970s, kicked down in the 1980s, and then we get to 1984 the Republican National Convention in Dallas Texas.


Archival audio: [00:21:43] It is my great privilege. To proclaim the thirty third Republican National Convention in Session and call it to order.


Archival audio: [00:21:58] We represent people who are patriotic. Who believe in our American system and love our country.


Nick Capodice: [00:22:03] Number four. Texas v. Johnson. Reagan and George H.W. Bush have been nominated for the second term and everybody at the RNC is banging gavels and getting all excited outside this convention on the steps of City Hall.


Nick Capodice: [00:22:16] There's a guy named Gregory Lee Johnson who goes by the name Joey. Gregory Johnson. And he takes an American flag and he burns it.


Hannah McCarthy: [00:22:24] I've seen


Nick Capodice: [00:22:24] And he spits on it. Yeah. Texas has a law. Texas legislature may prohibit overt physical acts that it deems offensive slash harmful to society. Texas loses the case and it keeps getting,.and Texas keeps appealing it and it goes up to the top, so Texas's name being first they lost the previous case. What is most interesting to me about this case I kinda, I found like a personal hero when I was researching this case and it's the guy who's the advocate for Johnson the lawyer named William Kunstler


Archival audio: [00:22:57] By the way talking about flags in front of the Supreme Court when I came by today. The flags were up in the rain. And under 36 US Code the leading provision there is flags shall not be displayed in inclement weather.


Archival audio: [00:23:12] Are you gonna get back to.


Archival audio: [00:23:12] Section one applies to all weather flags.


Archival audio: [00:23:17] That's an all weather flag. That could be physical mistreatment under the Texas statute.


Archival audio: [00:23:22] Mister Kunstler. Are you going to get back to the case?


Archival audio: [00:23:24] I'm going back to the case, seems we had this three weeks ago.


Nick Capodice: [00:23:28] He is very funny. And as you hear when he's arguing the case everybody's laughing, Thurgood Marshall is like can we get back to the case. He defended the Chicago Seven. He defended the Black Panthers the Weather Underground.


Archival audio: [00:23:43] Real pariahs people that could be totally hated by most of the population of this country. Well what makes Kunstler pariah bound? Well I have found that it is the pariahs when the law changes


Nick Capodice: [00:23:56] And what bigger pariah than a flag burner? In his argument he cites Street. He cites Barnett and the court makes its decision and it's another 5 4 vote. Another squeaker and the court holds that Johnson's burning of the flag is protected speech under the First Amendment. Justice William Brennan, famed advocate of the First Amendment. He's the one who writes the decision and he has the sort of money quote which is. If there is a bedrock principle underlying the First Amendment it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. And then Kunstler on the steps after the decision is read says this.


Archival audio: [00:24:41] And it tests the First Amendment whether you can see a thing like that which for war veterans who complain about, which touches a lot of people who do have certain reverence for the flag. To have that burned, desecrated in their eyes and yet protected by the First Amendment. I think it's a hard nut to swallow but it's a kind of nut that the founding fathers wanted us to swallow because they said that it's the hard words not the soft words that need protection.


Nick Capodice: [00:25:08] That decision invalidates laws in 48 states right off the bat.


Hannah McCarthy: [00:25:14] Wow.


Nick Capodice: [00:25:14] Suddenly overnight, whoosh.


Hannah McCarthy: [00:25:17] Yeah


Nick Capodice: [00:25:18] But there's one last one last bit to this.


Hannah McCarthy: [00:25:22] OK.


Nick Capodice: [00:25:23] Hannah which is Congress since Texas v. Johnson and starting in the mid 90s really 1990s has on many occasions tried to pass a new amendment to our Constitution. So we've talked before about how an amendment gets ratified into the Constitution and has to pass a two thirds majority in the house and in the Senate and then two thirds of the states have to agree as well. The actual amendment has been written. It's just waiting to be ratified. The amendment says the Congress shall have power to prohibit the physical desecration of the flag of the United States. That's it.


Hannah McCarthy: [00:25:58] Even though it is opposed to a Supreme Court decision


Nick Capodice: [00:26:02] Yeah, Because of its amendment would change that because it be in our constitution


Hannah McCarthy: [00:26:07] That's very interesting.


Nick Capodice: [00:26:08] So from the years 1995 to 2005 this amendment passed in the House six times. And each time it lost in the Senate by a handful or two of votes. In 2006 it got to the Senate and it lost by one vote. But even though it lost by just one vote Senate all 50 states have pledged that they are for this flag desecration amendment. So if it gets to the Senate it's pretty much a guarantee.


Hannah McCarthy: [00:26:40] Is it currently for..


Nick Capodice: [00:26:43] Yeah, so the amendment right now. It was proposed in June of 2017 and it's kicked to the Senate Judiciary Committee. So it's in committee as they say, it's in committee.


Hannah McCarthy: [00:26:54] All right.


Nick Capodice: [00:26:54] Who knows where it's going to go from there.


Hannah McCarthy: [00:26:56] Seems pretty likely to happen maybe next this year. Right?


Nick Capodice: [00:27:00] Who knows.


Nick Capodice: [00:27:02] One for the ages I guess.


Nick Capodice: [00:27:05] Thank you Hannah.


Hannah McCarthy: [00:27:08] Thank you Nick.





Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.

IRL1: Free Speech in Schools [Rebroadcast]






Civics 101

1st Amendment in Schools Transcript


Nick Capodice: [00:00:19] This is Civics 101, I'm Nick Capodice. If you've listened to a few episodes of our show you know that we don't have a lot of time. We try to keep these things down to about 15 minutes so they're digestible. And we can't really get into the moments of historical significance that are relevant to our episode topics like landmark Supreme Court cases actual presidential elections all that fun stuff. And that's what we're going to do today. We're calling it Civics 101 IRL. It's the real historical moments relative to our episode topics. So hope you have fun. Stick around. Last week I got this phone call from Dave Alcox


David Alcox: [00:00:54] Hey Nick this is Dave Alcox of Milford high school


Nick Capodice: [00:00:57] Mr. Alcox is a superstar social studies teacher here in New Hampshire, and a professional deejay.


David Alcox: [00:01:03] I've got a wicked great news for you. We're going to have John and Mary Beth Tinker from Tinker vs Des Moines, and Cathy Kuhlmeier from Hazelwood versus Kuhlmeier come visit us at Milford High


Nick Capodice: [00:01:15] And I didn't want to sound like a complete fool when he called me. But the truth is I didn't know who these people were, and when I found out I had to tell someone. So I grabbed producer Hannah McCarthy.


Hannah McCarthy: Yeah!


Nick Capodice: Come in


Hannah McCarthy: Ok

Nick Capodice: Do you have like five minutes?


Hannah McCarthy: I do yeah I have five minutes


Nick Capodice: Yeah, put on those headphones


Nick Capodice: Do you know who John Tinker, Mary Beth Tinker, and Cathy Kuhlmeier are?


Hannah McCarthy: I have no idea


Nick Capodice: Ok, these, it’s ok because I didn’t either, but I can promise you I will go to my grave knowing the names Tinker, Fraser, Kuhlmeier and Frederick


Hannah McCarthy: You gotta tell me who they are then


Nick Capodice: These are four people involved in Supreme Court cases that drastically, drastically change First Amendment rights in schools


Hannah McCarthy: I can’t believe I haven’t heard of this


Nick Capodice: I’m pretty shocked I haven’t heard about it either.




Nick Capodice: [00:02:08] Number one, Tinker versus Des Moines.


Archival Audio: [00:02:12] John F Tinker and Mary Beth Tinker, minors, etc. et al vs Des Moines independent community school district et al.


Nick Capodice: [00:02:21] The Tinkers name being first means that they are the petitioners. And Des Moines being second means they are the respondent.


Hannah McCarthy: [00:02:29] OK so that means that Des Moines is happy.


Nick Capodice: [00:02:32] Yes the original decision they don't want anything else to happen.


Nick Capodice: [00:02:35] Right. The Tinkers lost the previous case and Des Moines won the previous case. They're cool to stand. Mary Beth tinker, great story, Mary Beth Tinker was 13. Her brother John was about 16 I believe when this happened. Their father was a Methodist minister and he was very involved in the civil rights movement. And John and Mary Beth joined some students who were protesting the Vietnam War the Vietnam War and the United States. It's the first time that war is coming to American living rooms.


Hannah McCarthy: [00:03:05] Right through television.


Nick Capodice: [00:03:06] Yes absolutely. The horrors of war. And they were going to protest by joining some students who were wearing black armbands.


Archival Audio: [00:03:13] Specifically the views were that they mourn the dead on both sides, civilian and military in that war and they supported the proposal which would have been made by United States Senator Robert Kennedy. The truce which had been proposed for that war over the Christmas period made it open ended or an indefinite truce.


Nick Capodice: [00:03:33] Totally coincidentally two days before this big protest of wearing black armbands the principal of their school met with a bunch of other principals in Des Moines and passed a rule saying arm bands are forbidden in our school district.


Hannah McCarthy: [00:03:48] So were other kids wearing armbands?


Nick Capodice: [00:03:51] Yeah this was going to, when they heard that the principal heard that this was going to be a thing that happened. They're like look what are we going to do. Kids are going to be wearing armbands in school and it's going to be a disruption.


Hannah McCarthy: [00:04:00] OK so he tried to preempt the whole thing.


Nick Capodice: [00:04:02] Tried to preempt the whole thing but they wore them to school anyways and they were suspended. And immediately after they were suspended they started getting the threats. So yes. People called them a bunch of commies. Someone said they were going to firebomb their house. And one letter one letter that actually Marybeth still has to this day is like you're welcome to wear your armbands just do it on Saturday. You shouldn't be doing it in school. So they got in contact with the ACLU. They got a case together and through appeals it ends up in the Supreme Court and the vote is seven to two in favor of the Tinkers.


Hannah McCarthy: [00:04:40] That is a landslide. Go John and Mary Beth.


Nick Capodice: [00:04:44] John and Mary Beth. The seven justices wrote in the decision that yes their first amendment rights have been violated and they had a right to protest in school. The justice who wrote the decision is Abe Fortas. So when you have a Supreme Court case there's a decision where the majority writes the majority of it and then you can dissent. If you're someone who disagreed you can write in the dissent and Abe Fortas wrote the decision. He said "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Those words are used over and over in other Supreme Court cases further down the line. It's a magnificent decision and it creates this massive blanket precedent called the Tinker Standard which is where you ask was this speech disruptive. And if it's not disruptive then it's protected in schools. John and Mary Beth Tinker case 1969. And to this day John and Mary Beth do what's called the Tinker tour. They travel the country to tell students about their First Amendment rights.


Hannah McCarthy: [00:05:50] That is very cool.


Nick Capodice: [00:05:51] Mary Beth once said, one of my favorite quotes I found of hers, it's a good way of life to speak up. To use your rights. And she says that students are particularly in a position to speak up because students have virility, students are curious, students are the next generation who are is who is going to challenge the way the previous generation had everything all set up. So later on as the years go by the Supreme Court has to decide, are there things besides disruption quote unquote that makes something protected or not in school. So we're going to shift forward in time to 1986 were there.


Hannah McCarthy: [00:06:27] You should play some music.


Nick Capodice: [00:06:28] Oh I'm going to totally play 1986 music for this. It's going to be Cruel Summer.


Hannah McCarthy: [00:06:32] Yeah.


Archival Audio: [00:06:36] It does not say one should not swear in Latin class, the rule says that obscene or profane language is disruptive.


Nick Capodice: [00:06:46] 1986 Bethel v Fraizer.


Archival Audio: [00:06:50] The Facts of this case are that on April 26 1983 Matt Fraser, a 17 year old high school senior, gave a speech to the Associated Student Body.


Nick Capodice: [00:07:00] Gave speech nominating his friend Jeff for student body vice president. It was not full of cuss words.


Archival Audio: [00:07:06] He gave a crude and vulgar speech.


Nick Capodice: [00:07:08] It was very lewd and it was it was short but it was just goofy and it was all lewd and I think I'm not going, I'm not going to say it. So if you want to read it you can just go listen to it.


Hannah McCarthy: [00:07:21] We can't stop you.


Nick Capodice: [00:07:22] We can't stop you from googling it but it to be to be honest Hannah it's like no worse than a lousy Saturday Night Live monologue.


Hannah McCarthy: [00:07:29] Okay.


Nick Capodice: [00:07:30] Yeah except it's way too short. So it's yeah it's not long enough to be about SNL skit but it's just it's just full of sexual innuendo that's all it is. So then he was sent home for that. He went to court. He went to the 9th Circuit 9th Circuit Court of Appeals which ruled in his favor saying that double entendres were protected speech in schools and then the Bethel district brought it up and got up to the highest court in the land. The Supreme Court. Bethel comes first. Bethel v. Fraser because the Bethel school district is the petitioner in the case.


Hannah McCarthy: [00:08:05] I'm a little surprised. In the 80s. That this, that a school would even bother to say no it's our right to send you home when you exhibit lewd behavior.


Nick Capodice: [00:08:19] Because it's about 1960s when Tinker happened, this is a time the height of protest, it's the 60s you know America is learning how to protest in a new way. By the 1980s this is kind of been accepted. You know kids have freedom of speech in schools. Kids are expressing themselves but can it be lewd. It was another 7 - 2 vote. And the answer is no. You cannot say lewd speech in school and it is not protected in school.


Archival Audio: [00:08:46] The Ninth Circuit we believe has misconstrued the extent of the rights a student has under the First Amendment in a public school setting.


Hannah McCarthy: [00:08:55] I was wondering because I know in middle school at least while I was still in school in Massachusetts in a public school system if a kid wore a T-shirt with a lewd slogan or image on it they had to turn it inside out or go home.


Nick Capodice: [00:09:09] Yep same happened to my school particularly in the 1980s something called the coed naked T-shirts which were really hot in 1989 1990. And because they were lewd the school could tell you to turn them inside out or if they had swear words. So they didn't have to just say swear words. But even if they were lewd it couldn't happen in school. One of the quotes from the decision was "the first amendment does not protect speech in school that is vulgar or inconsistent with the fundamental values of public school education." And it kind of makes sense to me even though I'm you know I'm not a crotchety old man but you know you're you can't just go around saying lewd stuff in school.


Hannah McCarthy: [00:09:49] Right. Yeah yeah yeah. The Queen Mab speech is very filthy.


Nick Capodice: [00:09:53] So in the case the dissent and as I've said before the dissent is always kind of my favorite part of Supreme Court cases because it's like the minority coming out being like I still stand for bippity bop. Justice Stevens John Paul Stevens wrote the dissent and he said he just quoted he said "Frankly my dear I don't give a damn. When I was a high school student the use of those words in a public forum shocked the nation. And today Clark Gable's four letter expletive is less offensive than it was then." So he says that what is considered dirty or unprotected as it were in school can change over the years. Yes so let's let it be so let it be kind of like let it be kind of alive.


Hannah McCarthy: [00:10:39] For those of you listening who don't know what that's referencing that's Rhett Butler.


Nick Capodice: [00:10:43] Oh yeah.


Hannah McCarthy: [00:10:43] From uh, um, God,


Nick Capodice: [00:10:45] Gone with the Wind.


Hannah McCarthy: [00:10:47] Yeah.


Nick Capodice: [00:10:48] Two more and they're going to be fast. So that was in 1986 we're going to go forward in time to another case and this is Hazelwood v Kuhlmeier. now so the Tinker case was cited in the Fraser case and tinker and Fraser are cited and Hazel would be Kuhlmeier. And that's what I love is like Supreme Court decisions are living. They build a top each other. Hazelwood v Kuhlmeier decided in 1988. Kathy Kuhlmeier, she worked at a school newspaper called the Spectrum.


Hannah McCarthy: [00:11:20] Alright.


Nick Capodice: [00:11:20] What a fun name this was! What a ROYGBIV name! The Spectrum. And what they did when they wrote the Spectrum newspaper is they gave the proofs of what the paper is gonna be to the principal. He looked it over and said great job kids and printed it. Principal Reynolds got the proofs. It was a May issue. And there were two stories that the principal didn't really care for. One was about teen pregnancy and the other was about divorce. So what he did was he didn't tell anybody he just removed those articles and published the newspaper. Cathy Kuhlmeier and company got their paper the Spectrum opened it up and saw these two big articles were missing and they said what what's up with that. And the principal said that's you know and he gave his reasons for it goes up to the U.S. Supreme Court.


Archival Audio: [00:12:11] Mr. Chief Justice and may it please the court. This case comes before the court to resolve the issue of whether a school sponsored high school newspaper produced and published by a journalism class is a part of the school adopted curriculum under a teacher's supervision and subject to a principal's review. It is a public forum for the purpose of the First Amendment.


Nick Capodice: [00:12:33] Can schools decide what you can and can't put in a school newspaper? So Hazelwood School District v. Kathy Kuhlmeyer. Kuhlmeier got the help of the American Civil Liberties Union. She sued. She won. Then the Hazelwood district appealed it to and went up to the Supreme Court. This vote was 5 3. It's closer than the others and the victor the Hazelwood school district. Schools do have the right to alter to say what you can and can't put in a school newspaper and this was Justice White who delivered the majority decision and he said "the question we addressed and Tinker is different from the question whether the First Amendment requires a school to promote particular student's speech. The former question addresses educators ability to silence a student's personal expression. That happens to occur on school grounds but the latter question concerns educators' authority over school sponsored publications." So this case goes on to say if it's in a newspaper if it's in a school play if it's in a thing the school does, the school has the right to decide what can and can't be done. So you could do a rude play and the school could say we're not going to put that play up and your first amendment rights are not violated. What do you think of that one?


Hannah McCarthy: [00:14:00] I remember being very upset when my school...well in retrospect I get it. We were going to do the King and I and I prepared my audition song and everything from the King and I and and they decided no it's racist we're not doing it. It is racist. They shouldn't have been doing it. But at the moment I just thought like bunch of soft-handed ninnies, like is not is not a good reaction but I don't understand it. I understand that there is an implicit like as though the school is agreeing with whatever is being put in this material because the school's name is on it.


Nick Capodice: [00:14:33] Yeah it's an interesting case and I think because it extends to all sorts of things musical performances, plays I think of all of the possibilities this decision could change and it still stands. I mean Hazelwood v Kuhlmeier stands.


Hannah McCarthy: [00:14:46] Yeah. Especially, well not especially. There's always there's always some tumult in the country. But right now I think you've got a lot of young people who feel very passionately about certain political and racial tensions. And if they want to write a piece about it and you know perhaps cite use of a racial slur or something and they want to print that and talk about that word for example and why that word is wrong and they're going to print it because it's important that you read it as it is something like this you know and the school says we're not publishing that because that's a racial slur.


Hannah McCarthy: [00:15:24] Or maybe not even quite that we're just not even going to really give you a reason beyond use of racial slur. And we're just not printing your piece. I think it couldn't leave room for let's say a hyper conservative principle to just push back on anything that offended his or her ideals.


Nick Capodice: [00:15:41] Yeah. Well I think you might be in the same bailiwick as, this is one of my favorite dissents ever written, Justice William Brennan, "the young men and women of Hazelwood east high expected a civics lesson, but not the one the court teaches them today such unthinking contempt for individual rights is intolerable from any state official. It's particularly insidious from a school principal to whom the public can trust the task of inoculating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees." You, listener. Go read the whole case. It's a fascinating dissent. It's a lot of fun full of passion.


Nick Capodice: [00:16:23] One extra point that I want to make that Cathy Kuhlmeier made about defending her article staying in the newspaper was that there was so much teen pregnancy at her school that they had their own daycare.


Hannah McCarthy: [00:16:34] Wow. I have never heard of that.


Nick Capodice: [00:16:36] Yes. You're not allowed to write about teen pregnancy but enough students are having sex and having underage children that you have a daycare at your high school.


Hannah McCarthy: [00:16:45] That takes it to a completely different level.


Nick Capodice: [00:16:48] And now we're up to our last one.


Hannah McCarthy: [00:16:49] All right.


Nick Capodice: [00:16:50] And it's never the last one because gosh there's going to be is probably one being argued right now and it's it's 2007 Morse v.. Frederick.


Nick Capodice: [00:17:00] We're going to go all the way up. Juneau what I'm talking about we're going to Juneau Alaska.


Archival Audio: [00:17:04] ...everyone has been waiting for. And here are the first two torchbearers to enter the stadium Dorothy Hamill.


Nick Capodice: [00:17:11] This is during the torch relay for the 2002 Winter Olympics in Salt Lake City Utah. It's so fun. A schoolhouse Supreme Court case that involves the Olympics and our neighbor to the north.


Archival Audio: [00:17:24] Respondent Joseph Frederick Sr. was late to school that day when he arrived. He joined his friends across the street from the school to watch the event as the torchbearers and camera crews passed by. Frederick and his friends unfurled a 14 foot banner bearing the phrase quote "bong hits for Jesus" endquote.


Nick Capodice: [00:17:44] Bong Hits for Jesus. And the four was the number four and it was all capital letters except for the 'i" in hits. BONG HiTS 4 JESUS. So Frederick hung up the bong hits banner and principal Morse, Deborah Morse she took the banner down and Frederick was suspended. How would you rule on this one?


Hannah McCarthy: [00:18:12] It may fall under the lewd category because it will not lewd but generally inappropriate because it's saying drugs.


Nick Capodice: [00:18:23] You have these nine old Supreme Court justices men and women talking about bong hits for Jesus. And one of them kept being like, "it was a cryptic message. Such cryptic. What did he mean in Bong Hits for Jesus?"


Archival Audio: [00:18:38] I mean that's what I actually seriously don't understand suppose the school has the following rule. By the way on our field trips you can carry around 15 foot banners they can say anything except they can't talk about drugs and they can't talk about sex and they can't talk about. I don't know. Or I'd say three things. Would that be constitutional. Well I mean I think I think a school could certainly prohibit the display of banners on a school trip or in a school or some...suppose that this particular person had whispered to his next door neighbor bong hits for Jesus. Suppose that's what had happened.


Nick Capodice: [00:19:16] How are they going to vote?


Hannah McCarthy: [00:19:20] I feel a little nervous.


Nick Capodice: [00:19:20] Is the boy and the banner protected, or is the principal in her in her rights thinking of what you know about Hazelwood v Kuhlmeier, thinking of what you know of the Tinker standard and thinking of what you know about Fraser?


Hannah McCarthy: [00:19:33] I think given what I've learned so far from this lesson. Yeah. The principal is protected.


Nick Capodice: [00:19:39] Really.


Hannah McCarthy: [00:19:41] Yeah. Because we've seen two cases where if there is objectionable material the school is in the right to say no.


Nick Capodice: [00:19:50] The court votes five to four, close one, in favor of principal Morse. You got it on the head. And who wrote the decision was the newest chief justice. Justice Roberts.


Hannah McCarthy: [00:20:02] OK.


Nick Capodice: [00:20:02] It was an early decision of the new of the Roberts, uh, of the Roberts court. He said in his decision he said "Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it's going to disrupt the work of the school. Fraser demonstrates that the constitutional rights of students in public school are not automatically coexisting with the rights of adults in other settings like Fraser. If he had said those rude words outside a school th at would've been fine. But he can't say them in school and then Kuhlmeier acknowledged that schools may regulate some speech even though the government couldn't censor it outside of the school. And finally the concern here is not that Frederick speech was offensive but that it is reasonably viewed as promoting illegal drug use.


Hannah McCarthy: [00:20:54] So my biggest issue with all of this is that all of these Supreme Court judges are saying you know you've got adult rights and then you've got what happens to kids in the school in the public school system.


Hannah McCarthy: [00:21:08] And so it's it's basically saying that they aren't, children do not have the same rights as adults. In this certain.


Nick Capodice: [00:21:16] in this public school setting.


Hannah McCarthy: [00:21:18] Right. So why is it that the public school is this hallowed ground where students are stripped of something.


Nick Capodice: [00:21:25] Well do you think that students should have the right to say whatever they want whenever they want in school?


Hannah McCarthy: [00:21:32] No.


Nick Capodice: [00:21:33] Well let's talk about disruption first of all OK. Can somebody stand up and start screaming in class and disrupt your lessons.


Hannah McCarthy: [00:21:39] People do it.


Nick Capodice: [00:21:40] They do it but should they be allowed to do it?


Hannah McCarthy: [00:21:42] Well they're punished right.


Nick Capodice: [00:21:43] So should they not be punished.


Hannah McCarthy: [00:21:45] No I think they should be punished. I guess the idea is that the learning environment we're trying to teach our youth how to be responsible how to earn those rights as adults. I can yeah I can see that. I can understand that. I was also always a good kid. So it's easy for me to just imagine not to say that these are bad kids who are dissenting. Yeah but I only ever saw that it's entertaining and I never came up against sitting in the principal's office for having started an expletive.


Nick Capodice: [00:22:18] I mean I don't think it's, I'm a dyed in the wool champion of freedom of speech. I always have been. You know but all these cases like both sides make sense to me. You know something in them makes sense to me. So I can understand the court's difficulty in making these decisions. And in the dissent for Morse v Frederick it's Justice John Paul Stevens again, and his dissent by the end of it gets around to the point of basically this whole thing we've been talking about. He starts with this he says "although this case began with his silly nonsensical banner it ends up with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs." And then he says "the Vietnam war is remembered today as an unpopular war. But during the Tinker era during its early stages the dominant opinion that Justice Harlan mentioned in his Tinker dissent regarded opposition to that war as unpatriotic if not treason." So look where we are now. Who knows if feelings about drugs cannot change.


Hannah McCarthy: [00:23:26] We know that they can change we're seeing the marijuana laws change across the country.


Nick Capodice: [00:23:30] Absolutely. So I really like that in his dissent for for this case as he references Tinker and he says guys don't forget you know the Vietnam War. You would be just screamed at for opposing the Vietnam War. You'd get in trouble. People would get into fights with you at bars. I really like that he comes back to Tinker and he comes back in a way that's supportive of this. The Constitution is interpreted and those interpretations change over the years. These four students Tinker Fraser Kuhlmeier, Frederick. Four kids changed the ways our First Amendment rights are interpreted in schools.


Nick Capodice: [00:24:07] Well Mr. Alcox, if you're listening I'm ready now. Send me your Tinkers and your Kuhlmeiers. This episode was produced by me Nick Capodice and Hannah McCarthy. Erika Janik is our executive producer, our staff includes Ben Henry, Jacqui Helbert, Jimmy Gutierrez, Justine Paradis, and Taylor Quimby. Music is by the inimitable Peetie Wheetstraw, 1937. And Matt Oakley. The dulcet tones of Supreme Court justices past and present come from, it's a free Law Project from Cornell's Legal Information Institute. Civics 101 is a production of NHPR, New Hampshire Public Radio.






Made possible in part by the Corporation for Public Broadcasting.


This podcast is a production of New Hampshire Public Radio.