The Invisible Architecture of Our Democracy

0:28Hey, a quick word before the show. to say thank you. That's donate.npr.org. I'm Aisha Roscoe, and this is a Sunday story from Up First. Every Sunday, we do something special. We go beyond the news of the day to bring you one big story.

0:55so so i want to tell you about this moment when i discovered something basic about how this country works i'm in this big hotel in new york thank you very much everybody we've had a great three days at the united nations in new york donald trump is president it's his first term And he's having a concluding press conference. And this is quite a gathering. Wow. It's a lot of people. A lot of media. Just a few days earlier, there had been a big, splashy article with reporting that Trump's Deputy Attorney General, Rod Rosenstein, had talked about invoking the 25th Amendment to remove President Trump from office.

1:43So I raised my hand. Yes, yes, ma 'am. Yes, go ahead. Because that's how you got his attention. Mr. President, you have another meeting tomorrow with Rod Rosenstein. Are you planning to fire Rod Rosenstein? I'm talking to him. We've had a good talk. He said he never said it. He said he doesn't believe it. He said he has a lot of respect for me. And he was very nice. And we'll see. So you don't think anyone in your administration has ever discussed the 20... using the 25th Amendment against you? I don't think so. Well, yeah, enemies, sure. You use anything you can. Within your administration or your cabinet?

2:19It's really remarkable that I was asking a sitting president about use of the 25th Amendment against him. The 25th Amendment had originally been written after the assassination of John F. Kennedy. It made lawmakers wonder, what if he had been shot and stayed alive? Like, what if he'd been comatose? What if he was brain dead? Who would be president? It made them realize there was no process laid out about how to remove an unfit president from office. So they added it in the 25th Amendment. And now in 2018, those same few words added to the Constitution about how to remove an unfit president were taking on a whole new meaning.

3:08And we weren't just talking about health. If you think about it, the U.S. Constitution is really kind of a wild document. It was written over 200 years ago, but it's not stuck in the past. It continues to guide our everyday life. It's the architecture of this country. And the amendments, that's kind of how we remodel, you know, fix up the kitchen or whatever. In that moment, I felt just how strange that can be. that a few words written decades ago were being applied to a situation so far from their original intent, there's no way that the writers of those words could have imagined it. Right now, we're in a moment of political change.

3:57And so I thought it might be grounding and helpful to remind ourselves of our political foundations. Where do the amendments come from and how do they evolve? If they evolve at all. I'm joined by the hosts of NPR's History Podcast, ThruLine. Rund Abdel Fattah and Ramteen Arabluwi are currently doing a series on every single amendment. They're six in, 21 to go. Rund and Ramteen, thank you for being here. Thanks for having us. Thanks for having us. So I understand that you've been making a series with one episode on every single amendment, and that's a big commitment. Why did you want to do that?

4:43To start off, we called the series We the People, and that's a good summary of why we wanted to do it. Those are the first words of the Constitution, but it's also the heart of the series because really what's behind each of these amendments is people and their stories. And what we're really looking at is how words on the page that were written, in some cases 200 years ago, in some cases more recently, but how they manifest in real life and the struggle, the very real struggle, the difficult struggle that we have faced with each one of these amendments to adapt and understand it as the country and the world changes, you know, sometimes in extreme ways.

5:23And that's what makes them so relevant right now, right? Yeah, absolutely. I mean, I think it's easy to think about these things that were some of them written down more than 200 years ago and say, well, that doesn't apply to me or that sounds really boring and dry and abstract. And I think what this series is doing is bringing the amendments to life and making you realize just how relevant they are to us right now in this moment. Okay, so before we go any further, I want to say, you know, I've covered government for a long time, covered the White House, did a whole bunch of stuff. I know the amendments exist.

6:05But if you said, tell me about what's number 22? I don't know. Tell me what number eight is. Baby, don't ask. I don't know. So let's stop right here and say, OK, where do the amendments come from? Why do we have them? Talk to me about how these amendments came about. OK, so let's go back to 1787. So at this point, the British have been defeated. The U.S. has established its independence. And now the original 13 states have this massive assignment in front of them. They have to write a document that establishes a stronger central government that they can all agree on. And this all happened in Hamilton, right?

6:46Yes. Hamilton's going to be a part of the story. He's coming up. Okay. Don't get me started. Don't get me started on this. Yeah, please don't get him started, actually. All right. So the representatives of those states get together. They got their wigs on. And they're arguing a lot, right? And the kind of key debate that is raging between them is on one side, your guy, Alexander Hamilton. And the Federalists, who he represents, are saying the federal government needs power to unify 13 diverse states. So they are in favor of a strong federal government, right? On the other side, you have anti-Federalists, which you can imagine what that means.

7:27They don't want a strong federal government because they just fought the Revolutionary War, right? Theoretically, to get out of the grips of a strong central government. And finally, the anti-federalists say we will ratify the Constitution if they put this condition, we can also have a Bill of Rights. And that Bill of Rights explicitly would state the powers of people to protect them from the government. And these rights become the first 10 amendments. So I think it's important to point out here that those first 10 amendments were a political compromise. So there was an ambiguity built into the language.

8:04And this is intentional, right? They want it to be able to be open to interpretation and open to change. And today we're still arguing about those interpretations. But it is actually kind of by design that that space, that sort of liminal space of understanding is built into it. It sounds like we are in the extension of a debate that's been going on for 200 years. Once you started looking into the histories of these amendments, how does like that shiftiness of interpretation or the ambiguity that you talked about show up? One of the big ones that we talk about a lot today is the Second Amendment, which listeners may know has to do with the right to bear arms.

8:54Today, given the major place it has in our discourse, anyone would be forgiven for thinking that this has always been the case. But the reality is the Second Amendment wasn't a big issue in our national discourse for more than 100 years, basically, after it passed. There were actually very rarely court cases about it. It was almost never used to challenge laws. And the story of how it went from this kind of sleepy amendment no one really talked about to the political lightning rod that it is today is really, really wild. I want to transport us for a second to Great Depression era. So on a dusty road in 1934 is where this kind of pivot, this change to the Second Amendment becoming a big issue begins.

9:38And actually, here's where we can play a clip from the episode that really paints a picture of what that moment was. It's dawn in Okema, Oklahoma. Two cars, a Plymouth and a Ford, wind down the sleepy, dusty streets. In each car sit men with stockings and handkerchiefs over their faces, pistols and machine guns in their hands. they stop in front of two banks across the street from each other. The Depression is the golden era of bank robbery in the Midwest. And this gang is about to attempt one of the few successful double heists in American history. This group of guys with weapons basically go to one bank across the street, rob that bank then go to another one before the police can get there oh my goodness there's a movie road to perdition maybe some people remember with tom hanks it's a very it's a good movie it's right out of that right it's right out of a film and they basically almost got away with it but eventually one of the robbers a guy named jack miller he's caught and he's brought in for questioning, he actually snitches on his fellow bank robbers, the other folks that took part in this, and cut some kind of deal, basically.

11:03And he gets off. Like, he's let go. He's released. And so, okay. So, okay, he's off right there. But here's where it gets interesting. Joseph Blocher, he's a constitutional law professor at Duke. He actually told us this story. And he says a couple years after that bank heist. Jack Miller, wouldn't you know it, April of 1938, gets pulled over and it's found to be in possession of an unregistered sawed-off shotgun. He's arrested again. Hmm. What was he doing with that? Okay, so one note. This is the time, again, Great Depression, gangs, organized large gangs, including the mafia, are really big in the U.S.

11:45at this point. And one of the weapons of choice was a sawed-off shotgun. Why? Because it's easy to conceal, it's small, and it packs a really big punch, right? So he had what was generally known as a gang member's weapon. It was used in organized crime. Was it illegal or it just was unregistered? It was unregistered, which made it illegal. The National Firearms Act from that time required sawed-off shotguns to be registered since they were so popular for criminals. And Jack Miller's, well, that one was definitely not registered. So he gets caught, right? And up to this point, the Second Amendment was generally interpreted, if it was at all, to essentially mean that local militias had the right to bear arms to stand up to the federal army.

12:31But Jack Miller decides to fight his case by making a new argument that the Second Amendment doesn't just apply to militias, but it also gives individuals the right to own a gun, which should sound familiar to all of us today. Here's Joseph Blocher. He says the Second Amendment protects my right to have this sawed-off shotgun. And I think to some people's surprise, a district judge agrees with him and says, actually, yeah, the Second Amendment protects not just the sort of well-regulated organized militia, but even an individual like you, Jack Miller, your right to have a gun. And so the judge orders Jack Miller released.

13:10So this is the first time that this idea is tested in court, basically that the Second Amendment also gives rights to the individual. And that's because of this former bank robber? Yes, exactly. So this person who had robbed banks, we can assume he was still involved in some level in gang activity or the things he was involved with before. Or somebody was out to get him because he snitched on him. So he had to carry the sawed off, you know, shotty just in case. Exactly. He was packing for a reason, right? Well, OK, so he gets off. The court agrees with him. So he gets off again. But then the case goes all the way up to the Supreme Court.

13:49The judges rule unanimously that Jack Miller did not, in fact, have a right to a sawed off shotgun. They went with a continuing kind of interpretation that the Second Amendment has to do with a militia. But it didn't stay that way, right? Obviously. No, yeah. And we're going to get to that. But what I think is really fascinating about this is that it shows that the interpretation of the Second Amendment, or frankly, any amendment, is a living thing. It happens within a context of the moment, so a political, socioeconomic context. And at that time, with gangs being viewed, at least by the federal government, as a big problem in the United States and the U.S.

14:30being in the midst of this economic freefall, the idea was that they wanted to kind of put a stop to what they viewed as rampant crime. So perhaps that influenced the ruling. And that is something we really took in from this case. After the break, the Second Amendment takes a big turn. Support for NPR and the following message come from GoodRx. Prescriptions keep getting pricier and more of a hassle to fill. It's like the Wild West getting prescription medication these days. Good thing GoodRx wrangles it for you. From telehealth to wellness tips to easy discounts of up to 80%, GoodRx is riding with you at every step.

15:08GoodRx is not insurance, but if you have insurance or Medicare, GoodRx may beat your copay. Save time and money on prescriptions at goodrx.com slash upfirst. This message comes from Dell Technologies. The new Dell PC with Intel Core Ultra helps you fast forward through busy work, leaving more time for you time. Get a new Dell PC at dell.com slash ai dash pc. This message comes from Doctors Without Borders. People are living through a moment defined by unrelenting crises and need. Civilians are caught in the crossfire of violence and war. Malnutrition threatens the lives of children. Communities depend on life-saving humanitarian aid.

15:53Doctors Without Borders is meeting this moment of overwhelming need with action. But they can't do it alone. Help provide life-saving care around the world. Learn how to donate today at doctorswithoutborders.org slash NPR. We're back with the host of ThruLine on the surprising past, present, and future of America's amendments. When we left off earlier, you were telling me about the double-crossing bank heist story behind the Second Amendment. Yeah. Let's keep going. Like, where is that story now? Because it didn't end there, right? It did not. But interestingly, it took a very long time for it to change again.

16:34So like you said, we left off with Jack Miller. He had this sawed-off shotgun, and he made the case that he had the right to have this gun. The Supreme Court at the time disagreed, and it took all the way until 2008 for it to change again. And the context of that is that many judges on the court started at that time to interpret these amendments through the lens of something called originalism. And what that means is the originalists believe the Constitution should be interpreted based on the meaning of its words at the time that it was ratified. So basically, whatever they meant then is how we should interpret it now.

17:13So then in 2008, a case comes before the Supreme Court called D.C. v. Heller. The Supreme Court, in a very close decision that was authored by Justice, the late Justice Antonin Scalia, looked back at 18th century dictionaries. They even went back to English common law from the 1700s to argue that in the original text, the founders actually intended the Second Amendment to mean that this right isn't just for militias, but for individuals too. And that ruling ushered in the modern form of the Second Amendment that we know today, which really is just 16 years old, which really affirms the right for individuals to own weapons, for self-defense, for other reasons, and rejects this idea that it has to be for a militia.

17:58that's interesting because i think a lot of people would think that oh this has been decided you know long ago and not something so recent um and it it sounds like with this sort of interpretation this kind of originalism it treats the founders almost as prophets or oracles and you have to like okay when they said this word what did they mean like it's treating it as something that is written in stone. That's right. I would imagine, though, that would be very hard considering a lot has changed since the 1700s and 1800s. Yes. It's a very different world. They didn't know about Facebook or cell phones or...

18:41Or frankly, the types of weapons that are available, right? You know, it was written during a time where people were using muskets, very basic weapons that, of course, are dangerous. But today we have weapons that are far more lethal and far more effective in killing people. So I will say this. I think the originalists would make the argument that veering too far from the amendments gets away from their original intent. And that basically if the Constitution doesn't fit our present moment, that what we should do is just pass new amendments rather than kind of reinterpret existing amendments to fit the moment.

19:15But I do think it's fair at the same time to point out, like you said, things are changing. Our society is way more complicated than it used to be. And that applying the rule, you know, let's say an amendment from the 1700s in the way that they intended today may miss a lot of the complicating factors. It's something that the court still hasn't worked out in a lot of ways. And our society still hasn't worked out. And I think it's going to be an ongoing struggle for years to come. What I find really interesting here is that some amendments seem really clear. And then there are others like the Second Amendment and, of course, the First Amendment that are just the source of endless debates.

19:56So moving on, let's talk about the First Amendment. How's the right that it guarantees freedom of speech been interpreted and reinterpreted over the years? Well, first, I mean, there was a disagreement about what it meant from the very beginning. So the amendment says, among other things, Congress shall make no law abridging the freedom of speech. And at first glance, that seems clear, right? But even seven years later, after that was passed, Congress actually passed a law that prohibited speech that criticized the federal government. And so, as you can see, immediately they started eating away at the idea because it's really tricky, right?

20:37On the one hand, you want to protect people from harm. On the other hand, you want to maintain free expression and free exchange of ideas, etc. All the things we hold to be sort of important in the U.S. So the courts have to decide where does potentially dangerous speech become speech that causes real harm? And when is it worth stepping in? And so over the years, their decisions have shifted and shifted again. Let me tell you two pivotal moments, two stories that have shaped free speech rights today. The first is in 1919, while the Red Scare was in full swing, an activist named Anita Whitney gave a speech for the Communist Labor Party and was promptly arrested.

21:23Her case actually later landed in the Supreme Court where the justices upheld her conviction and applied an argument about free speech that would remain the precedent or the standard for decades. And that is basically that speech can be prohibited when it poses a clear and present danger. This test actually gives the government a lot of leeway to limit people's free speech, right? Because it's vague. Like in this case, Whitney wasn't calling for immediate violence, but she was still perceived as a threat by the state because of her relationship with the Communist Party, which obviously did threaten to violently overthrow the U.S.

22:01government. And that was enough to regulate. But then in another story, in 1969, the limits of free speech became a lot more specific. Marianne Franks actually told us this story. She's a law professor at the University of Miami. And it starts when a Ku Klux Klan leader named Clarence Brandenburg held a rally in Ohio. And at this rally, he's in full Klan regalia speaking to all of these other hooded individuals and says, if the white race continues to be oppressed by the president and Congress and the Supreme Court, we may have to take, and he calls it revengeance. And during that rally, they then burn across and they're carrying weapons.

22:44They're using anti-Black, anti-Semitic slurs. It's pretty clear that it's meant to be threatening and intimidating. And the broadcast of the speech is not just played on local news, but it makes national news. So everybody really has the chance to hear it. So Brandenburg is actually convicted in Ohio for that speech. And that case is then challenged and it travels all the way up to the Supreme Court. The Supreme Court, in a surprise ruling, essentially says that they're going to introduce a new test, a test that we still use today to determine when speech has gone from free speech to something illegal.

23:22Here's Marianne Franks again. It says you can't prohibit people's speech unless the speaker intended really to incite imminent lawless action. That is pretty much has to happen immediately. And it has to be really likely that that lawlessness is going to happen. So, for example, if you're saying something to try to start trouble, which many people would argue that's what Brandenburg was doing at his KKK rally, but no one's really listening, then the government can't restrict it. The speech has to be both intended and likely to trigger immediate, unlawful action. Well, that sounds like a very narrow interpretation of what can be prohibited.

24:01I mean, the KKK was actually extremely violent. I mean, they were a terrorist organization. I mean, the objective facts totally bear that out, right? Which shows you just how big of a shift this was from the Anita Whitney case. In a period where there was just so much fear about communism, the government decided it could restrict speech that even vaguely threatened violence. But by the time we get to Brandenburg in 1969, the court gives his very threatening speech way more protection. So you can only regulate it if it creates an immediate threat. And that's the standard we actually live with today.

24:39And you see this issue even playing out today. I mean, when you think about Charlottesville, Virginia in 2017, there was a rally that took place. There were white supremacists there carrying flags with Nazi emblems, weapons, shouting racist chants. And one counter protester was hit by a car and killed. So even this speech that is hate speech is still protected, though, right? Yeah, I mean, with that example, a clear distinction that the hate speech on its own was constitutionally protected, right? Going out with those emblems, weapons, even the shouting of racist chants. But organizing, inciting violence, that is not protected under the Constitution.

25:27And so the Charlottesville organizers were allowed to march, but they were ultimately sued for conspiring to commit violence. That was the charge against them, not for the views and speech itself. I think it's also really interesting how social media is factoring into the question of free speech right now because it's raising really big questions that are making it even more complicated, right? As it stands, these rules apply online too. But there's a big question that's currently under debate around whether social media companies hold any responsibility. At the moment, they're completely exempt, but new First Amendment cases might change that soon.

26:08After the break, a forgotten amendment makes its case. This message comes from Progressive Insurance and the Name Your Price tool. It helps you find car insurance options in your budget. Try it today at Progressive.com. Progressive Casualty Insurance Company and Affiliates. Price and coverage match limited by state law. Not available in all states. This message comes from Mint Mobile. From the gas pump to the grocery store, inflation is everywhere. So Mint Mobile is offering premium wireless starting at just$15 a month. To get your new phone plan for just$15, go to mintmobile.com slash switch.

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27:27So Mint Mobile is offering premium wireless starting at just$15 a month. To get your new phone plan for just$15, go to mintmobile.com slash switch. We're back with the Sunday story, talking constitutional amendments. So some amendments, like the First and Second Amendments, they're political lightning rods. You hear about them all the time. But there are other amendments that are rarely mentioned, almost forgotten. Like, did you learn anything surprising about these kind of dustier, less well-known amendments? Oh, yeah, absolutely. I think, you know, while they're not all political firestorms, you realize just how important some of those dustier amendments actually are.

28:14And one example that a lot of it was surprising to me as we were working on this episode was the Third Amendment. If you've heard of it at all, it's probably been as a punchline to a joke. I take the third all the time, every day. And then if somebody tries to call me on it, they go, well, what is the third? That's when I take the fifth. It's the one about quartering troops, two words that have probably been rarely said side by side since about the late 1700s. But here's what it actually says. Amendment number three. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.