Sex, Ducks and the Founding Feud

0:00Hey, this is Radiolab. I'm Latif Nasser. And ever since I came to this country, the United States, and became a citizen here. one thing you notice is that everyone is always arguing about who gets to decide. There's this constant power play in this country between the federal government and the state governments. And it's like no matter what issue you are looking at, whether it's immigration or climate change or AI regulation or a million other things, somehow there's this question of who gets to decide who gets power over what. And honestly, I just get so tired of that conversation. It feels super important.

0:46It's obviously very high stakes, but it can get so tedious and technical and it just makes your eyes glaze over. so today i want to play for you a story that when i first heard it it just made that question pop out at me in a completely different way it made that question actually interesting and it told it in a way that was actually a little bit scandalous we originally released this episode back in 2013 i'm excited for you to hear it or rehear it the episode is called Sex, Ducks, and the Founding Feud. Enjoy. Wait, you're listening. Okay. All right. Okay. All right. You're listening to Radiolab.

1:35Radiolab. From WNYC.

1:41Rewind. Today on the podcast, Robert, we're going to talk constitutional law, federalism, and the intricacies of international treaty practice. Oh, God. You ready? No, no, no. Don't do that. It's going to be good. It's going to be good. Because I have help. Hey, guys. Hi, Kelsey. Hello. Kelsey Badgett has reported this segment. And just listen to how it starts. So the story starts with a betrayed spouse. Oh, you see. Oh, it's much better. I'm coming back to my seat. Get some popcorn. My name's Duncan Hollis. He's not the betrayed spouse. Nope. I'm a professor of international law here at Temple University in Philadelphia.

2:25And I'm Nick Rosenkranz. And not him either. I'm a professor of law at Georgetown. I'm also a senior fellow in constitutional studies at the Cato Institute. So Mrs. Bond. That's her. That's our betrayed spouse. Carolyn Bond. 36. Lives in a suburb of Philly. Discovered that her husband was having an affair with her neighbor. Actually, it was worse than that. This woman is her best friend. And not only that. She finds out that her friend is pregnant via her husband. He got her pregnant. Oh my God. Yeah. And this is her best friend and her husband of 14 years. You know, she was quite upset, distraught, enraged, I would imagine.

3:08Yeah. Carol made threats. There were confrontations. The other woman is named Merlinda Haynes, by the way. And eventually, Carol Ann Bond. She did what anyone would do. She got a bunch of toxic chemicals. I do it all the time. And she tried to poison her best friend repeatedly. Whoa. Back up for a second. Where would she have gotten the chemicals from? She worked, I believe, at a lab. She works for a chemical company. I think it's Roman Haas. So she's a biochemist. She's actually a microbiologist, but she grabs some chemicals from her office. I think she also orders some off the internet. Amazon.com.

3:42But they're pretty serious chemicals. Like what? Well, one was arsenic-based, and in large enough doses, and when I say large doses, I'm talking teaspoons, not gallons, it can, you know, cause serious injury and can be fatal. So anyway, she took these chemicals, she went over to her best friend's, or well, her former best friend's house. And she spread them on the doorknob and on the mailbox. The door to her car. And they're visible, I guess. I guess you can see them. So the best friend isn't fooled. Nope. She calls actually the local police. The local police tell her to take her car to a car wash.

4:15They said, oh, you know, it could be drugs. We'll get the car washed off. They kind of just blow her off. But it keeps happening. Over the course of like half a year, this happens 24 times. 24 powder attacks. According to the court briefs, you know, the police were just not being very responsive. She called them over a dozen times and they tested it to see if it was cocaine. But once they figured out it wasn't, they didn't really do anything. So finally, she tells the post office. And it was the post office that actually sent out postal inspectors and they set up a hidden camera. And they videotaped Caroline Bond in the act.

4:53They get it on tape? Mm-hmm. That's how they identify her as the person putting the chemicals, you know, on the mailbox. I didn't know the post office did stuff like that. To be honest, I didn't either. That's so, I think of them so differently now. Yes, and I think if there's a moral to the story, it is do not mess with the mails. They take that very seriously. Actually, there's a whole lot more going on than just messing with the mail. Because of what happens next. So, according to Nick Rosencrantz, generally things like assault or attempted murder... Those are state crimes. In most circumstances, the federal government can't charge you with murder.

5:31The post office, that's a federal institution. So when they caught Carol Ann Bond, they kicked this up to the federal attorney, who then... Went ahead and brought a federal case. And here's the thing. They ended up charging Carol Ann Bond with violating the International Chemical Weapons Treaty. What? We should be clear, the victim got a tiny thumb burn and ran cold water on it and was fine. So this is, we're not, this is, um, this is not murder. That makes this all the more odd. Very odd. When I poison someone, the last thing I'm thinking about is violating an international treaty. We should never have you over for lunch.

6:11But no, really, why would they charge you with that? I don't understand. Well, if you actually read the treaty. The statute simply says that it's a crime to use a toxic chemical for other than a peaceful purpose. That's the exact language. And that guy, that's John Bellinger. I served as the legal advisor for the Department of State under Secretary Condoleezza Rice. And John says that even though it sounds a little weird, this is exactly what this treaty was meant for, for people using chemicals. highly toxic chemicals for non-peaceful purposes. Exactly right. And that's what happened here. Imagine if she had killed a bunch of postal workers.

6:45Then... I don't think anybody would complain. But to charge her with an international treaty violation, it just seems too big for the little lady. It was really odd to her lawyers, too. I bet. They're like, look, in the Constitution you have laid out what the federal government could do. This is not one of those things. You can't just take a treaty and use it to reach into the very local life of a normal person. That's a huge overreach. Sneaky, frankly. And now this case is before the Supreme Court. Boom. And it's become an ideological battle that goes way beyond Carol Ann Bond, her cheating husband, or her adulterous best friend.

7:22And I would argue that this case, as weird as it is, raises some really important issues about how the world is changing and about one of the most fundamental questions that is at the heart of America. I really believe that. Well, you have to defend that position. What do you mean? Let me take you back to the beginning, okay? Sure. My name is Joseph J. Ellis. I am a historian. I've written a book called Founding Brothers, and my most recent book is called, what's it called? Revolutionary Summer. You are a modest man. So Joseph Ellis has written a Pulitzer Prize-winning author. He's written a bunch of books about the founding of our country, the Revolutionary War.

8:02and there is a scene in one of his books. A book called American Creation. Didn't sell as many as founding brothers. Doesn't matter to me because it has this one passage that when I read it, I was like, wow, I've never thought of this country that way. But to set the scene. You want to be real specific, it's September. September 1787, Philadelphia. You know, it's abominably hot. Yet all these great men crammed into a statehouse. I mean, George Washington. This guy is a stud. Six foot three. War hero. This guy is overwhelming. Alexander Hamilton was there. Hamilton, he would have got the highest grades on the LSATs.

8:39I'm telling you, this guy was really smart. Even Ben Franklin. Yeah. Who's pushing 81 at this point. Franklin's there. Oh. They all came together to try and figure out, like, how do we do this? Like, if you think about it, it was a puzzle because you've got these 13 colonies, which are really like sovereign nations. They were loosely organized into a federation that was about to go bankrupt, so they had to do something. So they're like, okay, let's bring them together into a union, but how do we do that without a king? It was a crazy experiment. One thing you've got to realize is that at that time in American history, the average person was born, lived out his or her life, and died within a 30-mile radius.

9:16They don't have cell phones, and they don't think about themselves as Americans. They thought of themselves as Pennsylvanians, South Carolinians, Bostonians. There is no real national ethos. So that's one problem. Second problem, the founding fathers could not agree, could not agree on the most basic question. If there's not a king, who's in charge? Right? The so-called sovereignty question. And on the one hand, you had a guy like Alexander Hamilton who got up there and was like, why do we even need states? What's a state? All right. What we need is a federal government that is big and strong and powerful.

9:51That's Hamilton, baby. Hamilton wants a president elected for life. Hamilton wants a senator elected for life. On the other hand, you had the Thomas Jefferson school of thought, which was like... No, no. We just got out of a monarchy, for Christ's sake. And the only way we're not going to get back in one is if we keep the government small, restricted, and... All domestic policy belongs in the hands of the states. Sound familiar? Jefferson likes anything in which the government's not going to be doing much. So you had these two very different philosophies, and the way Joe sees it... If you let Jefferson have total power, we end up in anarchy.

10:21If you let Hamilton have total power, you're going to end up with a totalitarian state. At the convention, the two sides went back and forth. And any time a Hamiltonian type proposal hit the floor, some of the states would say, no. And they'd shoot it down because they did not want some big government telling them what to do, especially when the 800-pound gorilla in the room was slavery. So they couldn't agree at all. And into this mess walks our hero. James Madison. Madison, you know, like, Madison's 5 '2", 120. Madison! He's the kind of guy that, you know, stands in the corners during a dance.

11:00He would call him a nerd. Madison! Or you might call him a pragmatist. Madison wants a clear decision about sovereignty. Yeah, like, for example, on local matters, who gets the final say, the states or the federal government? Just give me some clarity. And he's not going to get it. And he comes to that realization at the very end. Because at the end of the convention, they have this document. I mean, he wrote the original blueprint. Now there's this new document so riddled with compromises that, according to Joe, the basic question he wanted answered wasn't. The who's in charge question was left kind of vague.

11:38On all sorts of matters, I mean, who regulates money in banks? Who gets to tax what? Who decides whether new states will be slave states or free states? It was vague. And initially, according to Joe, in a letter that Madison wrote to Thomas Jefferson, he's like, come on. He's very disappointed. He thinks the document's going to fail and the country's going to fail. He doesn't think this is going to last. But then, Joe says, in his writings, you start to see a shift. He starts to think differently. He starts to say, oh, yeah. Wait a second. This could work precisely because it's unclear. And we found what he calls a middle station.

12:18Where everyone can see what they want to see. I mean, people come out of the convention, go back to their states, and the guy in South Carolina says, don't worry about slavery. The 10th Amendment's going to tell us that they can't do that. The guy in Pennsylvania says it's just a matter of time before we end slavery. The Constitution becomes successful because the people don't agree on what it means. That, according to Joe, was Madison's epiphany. The Constitution isn't a set of answers. It's a framework for argument. This is a document which allows us to continue to discuss and debate the core issues that we face, the powers of the presidency, the sovereignty question.

12:55The real resolution of the sovereignty question is never achieved, and it eventually leads to the Civil War. What I find kind of neat about this is that, like, that argument that happens in modern politics all the time about states' rights or the size of the government, which can feel like a random argument for me at times. Suddenly to know this, I mean, if you buy what Joe's saying, it's not random at all. This is an argument that was actually literally written in to our founding document. In some sense, we as a country are the product of that argument. Of course, not everybody agrees with Joseph Ellis.

13:34Plus, there are people who think that the founding fathers had a very specific thing in mind. And if you just go back to their debates and to what they said to each other, that you can find the real only deep logic for the Constitution. But the fact that they disagree with Joe in some sense, doesn't that kind of make Joe's point? That you can read this document in 10 different ways? Yes. Everyone always argues, always. Just to pick up the thread, I mean, after the Civil War, the argument changes. It gets centered. But the union is still an experiment. Yeah. Massachusetts can still do their business differently than Colorado, differently than Vermont.

14:10And the jostling between the federal government and the state government doesn't end. It just gets a little quieter. Thank heavens. Unless you're a duck. Ducks right after this break.

14:25just before the break we were talking about how this whole country the experiment that is the united states of america has left us jostling between the federal government and the state governments and kelsey padgett is about to tell us what all that has to do with ducks so it's spring of 1919 rural missouri you've got frank mccallister the attorney general of Missouri. He's out there with a bunch of friends and they're pointing their guns at the sky and shooting ducks. One after another after another and they end up shooting all in all 76. He knows he can do this because you know he's the attorney general of the state he knows all the laws of the state and he knows it's his right to shoot whatever duck is flying in the sky of Missouri.

15:17It's the state law that you the state law, you can shoot the ducks. So they're out there, they're having this great time, they're having this great haul, they've gotten all these ducks, and then out of nowhere Ray Holland, the federal game warden, shows up and he says no, you can't do this, you can't shoot these birds, they're not your property. McAllister says, f*** you, you're wrong. This is a matter for the state, you know, it's our sovereignty, we never gave this over to the federal government. So he must have been like, I don't think the federal government has anything to say to me about a duck that was born here, at least I found it in the sky here, I shot it here, it died here, and I'm going to eat it here.

15:52So this is my duck. But the game warden says, no, it's not your duck. And he arrests them all, setting up a landmark confrontation. Because here's what had happened. Two years earlier, the administration of Woodrow Wilson was sitting there wringing their hands, thinking, all these people are killing birds at like a nonstop pace. And if this didn't stop... You know, there was some concern at this period that we were going to, you know, we were going to hunt these things to extinction, you know, we might not have any migratory birds at all. Problem is, the courts had already told the federal government this is purely a local matter.

16:25You can't make federal hunting laws. But then, somebody in the administration has this really great idea, or a really evil idea, depending on how you look at it. Maybe if we can get Canada to cooperate with us, we can do this by a treaty. Because there's this clause in the Constitution that says treaties of the supreme law of the land. So maybe if we make an international treaty, then the states will have to go along. Frank McAllister, he sues, and this goes all the way up to the Supreme Court. It lands before Oliver Wendell Holmes, one of the more famous justices of the Supreme Court. And he basically says, the treaty power is something that was given to the federal government.

17:07Don't limit this. This treaty is good. And the treaty and the legislation are upheld. So score one for the federal government. Score one for the federal government. And in there, you actually have Holmes talking about what the Constitution is. He was this thrice-wounded Civil War veteran, and he actually invokes the language of the Civil War, saying we spent all this sweat and blood to figure out what kind of nation we were going to become for birds. He invokes this language and basically says whatever we had debated in the past, You know, could the states regulate slavery without federal interference?

17:45And Holmes says no. You know, the side who fought that argument, they lost.

18:03All this talk about birds and, you know, state versus federal has everything to do with our poisoner, Carol Ann Bond. This case is the precedent upon which the federal government says that they can prosecute Carol Ann Bond because Oliver Wendell Holmes said that treaties are the supreme law of the land. I don't know. I'm still of the mind that this is a sneaky bit of business by the federal government. It's not sneaky if you're a duck. I feel I must speak on behalf of the ducks here. But no, forget your ducks. This is a Pennsylvania lady doing a Pennsylvania adultery in a Pennsylvania mailbox with a Pennsylvania mood.

18:44I mean, there's nothing. There's no birds flying overhead. This is an all Pennsylvania crime. But you know who wasn't doing a goddamn thing about that? Pennsylvania. Oh, oh. But just to take your side for a second, Robert. Please, do that. If you really think about it, you know, and the way that Nick Rosencrantz thinks about it, this is really troubling. This decision seems to say that theoretically the federal government's power is potentially infinite.

19:16Because like say John Kerry, who's our secretary of state right now, he goes and makes treaties. Say he's talking to Zimbabwe and we agree that we want to have a treaty about educational standards for children. So we come home and we write a law that says all children must go to public schools. But then that would outlaw homeschooling for children. which is a clear local state matter. But now suddenly the federal government has a power to do that. It just seems odd, the idea that the president, the Senate in Zimbabwe can increase Congress's legislative powers. Here's how John Bellinger responds.

19:52Is it a theoretical possibility that the federal government might try to go and do that? I suppose it's theoretically possible, but there's no evidence that that happened here. There's no evidence that that has happened in the 100 years since Missouri versus Holland. He would say, look, consider the practical impact that a decision might have that would cut back on the president's treaty power. Other countries are already highly suspicious of the United States' ability to deliver on its treaty commitments anyway. John would say, why would any other country want to make a treaty with us if Kansas could back out at any time?

20:27And like, how do you deal with a question like global warming if everybody is allowed to be left to their own devices? Well, that's a tough one. I mean, the reality is... That's Duncan Hollis again. We live in a globalized world, whether it's, you know, dealing with things like climate change, terrorism, shipwrecks, cybercrime. Increasingly, these are things we can no longer regulate just within a particular local community or a local society. And, like, on some level, if we now find ourselves in this world where, like, I can get on the Internet and spend hours and hours playing World of Warcraft with people in Yugoslavia, and yet I've never really talked to my neighbor that's just down the street.

21:06Like, why wouldn't we all have the same laws? But, you know, I think the flip side of your question is, fine, the world is very interconnected, but are there still some things that are local? Are there some things left where we could say the federal government doesn't need to be able to reach this? And more than that, Nick says that having a bunch of different communities that are governed by different rules, all under the same nation, actually... Has a bunch of benefits. Um, competition, this, the idea of laboratories of democracy, that the 50 states will all try different things as to regulating guns near schools, as to regulating whatever it is.

21:44And maybe some state will hit on something brilliant. And if they do, then it will spread and be replicated. And, you know, that theory has been borne out in a lot of different areas. When the feds decide that they're going to come up with a one size fits all national solution, that's the end of the experiment.

22:12So, by the way, what happened to Carolyn Bond? Well, she went to jail. She's in jail. She's still in jail. No. She's not now. So she could go to court and find out whether this thing was... Yeah. That's cool. She could show up. What about the poisinee? What happened to her? The poisinee, she changed her name. She moved away. She's unsearchable now. Good, good. I hope she moved to Zimbabwe. Is she still living with the guy that gave her the baby? No, no, no, no. You see, Carol, even though she went to jail for six years, she stayed with her husband. No way. Really? Yeah. She stayed with the man who had a baby with the other lady?

22:47Yeah, that she tried to poison that lady about? She stayed with that guy. See, that's the thing. Law is interesting, but love, that's complicated. Love is greater than treaties. Thank you, Kelsey. Thank you. Kelsey Padgett. Robert Crowe, Robert Crowe. Jadav Umrad. Yeah.

23:08Luttev here again. So a couple months after we released this episode, the Supreme Court did indeed make a decision in Carol Ann Bond's case in a unanimous vote. The court decided that Carol did not violate the Chemical Weapons Convention Treaty. But you might remember that was not the question that court watchers were hoping the court would answer. The question they were hoping to get an answer on was, can the federal government use a treaty to make laws about crimes that would normally be within a state's jurisdiction, like poisoning? This decision did nothing to answer that question. So, lucky for us, we can keep arguing about it for another hundred years.