The Invisible Architecture of Our Democracy
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Am I shara? go. 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.

So, so I wanna tell you about this moment when I discovered something basic about how this country works. I mean, 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.

Donal trump est president is his first term, and he's having a concluding press conference.

This is quite 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 replanning that trumps deputy attorney general rod rose, and time had talked about invoking the twenty fifth, a limit to remove president trump from office. So I raise my hand.

Yes, yes, man, yes, go head.

Because that's how you got his attention because, president, you have another meeting tomorrow with rod rose time. yeah. Are you planning to fire rod rosenstein .

talking to him? We've had a talk. He said he never said that. He said he doesn't believe IT. He said he had a lot of respect for me and he was very nice. And we will say so you don't .

think anyone in your administration has ever discussed the using the twenty fifth moment against you.

I don't think enemy is you.

It's really remarkable that I was asking a sitting president about use of the twenty fifth amenity against them. The twenty fifth the moment 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 did? 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 twenty fifth a minute. And now in twenty eighteen, a few words added to the constitution about how to remove an unfit president.

We're taking on a whole new meaning. And 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 two hundred years ago but is not stuck in the past.

IT IT continues to guide our everyday life. It's the architecture of this country and the amends. That's kind of how we remember you fixed up the kitchen or whatever. In that moment, I felt just how strange that can be that a few words writing 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.

And so I thought I might be founding and and helpful to remind ourselves of our political foundations, where do the estimates come from and how do they evolve, if they evolve at all? I'm joined by the host of importance history podcast through line run a, delford a and rampton. Our blue are currently doing a series on every single amendment.

There are six in twenty one to go. Rand ROM team. 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 amenity, and that's commitment. Why do you want to a do that to sort of .

we call the series with the people, and that's a good summary of why we want 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 two hundred years go, in some cases more recently, but how they, men of us, in real life, and the struggle, the very real struggle, the difficult struggle, that we are 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 and .

and 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 two hundred 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. Um in this moment.

okay. So before we go any further, I I wanted say, you know i've covered government for a long time, cover the White house, did the home once a staff um I know the ambience exist, but if you say, tell me about what's number twenty two, I don't know tell me what number eighties they would know as I don't know like so let's stop right here and say, okay, where do the amends come from? Why do we have them talk to me about how these events came about?

Okay, so let's go back to seventy and eighty seven. So at this point, the british have been defeated. The U.

S. Has established its independence, and now the original thirteen 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 all happened in hamilton helton to be a .

part of the story.

Yeah, please don't get him started, actually. Alright, so so the s of those states get together. They got their wagon and a and they're arguing a lot, right? And the kind of key debate that is raging between them is on one side, your guy, I was in a hamilton, and the federalists who he represents are saying the federal government needs power to unify thirteen diverse tes.

So they they are in favor of a strong federal government, right on the other side of federalists, which you can imagine what that means. They don't want a strong federal government because they just fought the revolutionary war, right theod ally, to get out of the grips of a strong central government. And finally, the antifeminist say we will ratify the constitution.

If they put this condition. We can also have a bill of rights in that bill rights explicitly would state the powers of people to protect them from the government. And these rights become the first ten amendments.

So I think is important to the point out here that those first ten amendments where political compromise, so there wasn't ambiguity built into the language, and this is intentional, right? They want IT to be able to be open to interpretation and open to change. And today were 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 extinction of a debate that's been going on for two hundred years when you started looking into the history of these amid how does like that shifting miss of interpretation, or the ambiguity that you talked about, show up one of .

the big ones that we talk about that today is the second amendment, which listeners may know has to do with the right to bear arms today, given the major place that has in our discourse. Anyone to be forgiven for thinking this always been the case. But the reality is the second amendment wasn't a big issue in our national discourse for more than one hundred years.

Basically, after IT passed, there were actually very rarely core cases about IT. IT was almost never used to chAllenge laws in the story of how IT went from this kind of sleep by amending no one really talked about to the political lighting. Rob, that IT is today is is really, really wild.

Um I want to transport us for a second to great depression era. So on a dusty road in nineteen and thirty four is where this kind of pivot, this change to the second amendment becoming a big issue begins and actually, um here's what we can play a clip from the episode that really paint a picture of what that moment was. It's done in a chema, oklahoma.

Two cars are play mh and afford wine down the sleepy, dusty streets. In each car sit men with stockings and handker ships over their faces, pistol and machine guns and 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 thing is about to attempt one of the few successful double heights 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.

Or there's a .

movie road to tradition. Maybe someone will remember with tom hanks, this is a very a good movie. It's right out of that, right 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. And 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 he is.

interesting. Joseph blocker, he's a constitutional law professor. I do. He actually told us this story. And he says a couple years after that, bank hist jack .

Miller would you know that April in one thousand nine and thirty eight gets pulled over and it's found heavy in possession of an .

unregistered saw off shocker. He's arrested again.

What do 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. At this point. And one of the weapons of choice was a sort of shocking on why? Because it's easy to conceal its small and a packs of really big, punchy. So yet what was generally known as a gang members weapon IT was used in an organized crime.

was IT a leg or just was unregistered IT .

IT was unregistered, which made IT illegal. A the national firearms act from that time required sort of shockers to be registered since they were so popular for criminals. And jack Miller, well, that one was definitely not registered. So we gets caught, right? And up to this point, the second amendment was generally interpreted, if I was at all, to essentially mean that local malicious had the right to bear arms, to stand up to the federal army. But 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 blocker.

He says, the second amendment protects my right to sort of shock n and I think that some people s surprise. A district judge agrees with them 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, you're right to have a gone. So the judge orders jack Miller released.

So this is the first time that this idea is tested in core, basically that that the second amendment also gives rights to to the individual. And that's because of this former bank rober.

Yes, exactly. So this person who had rob banks that we can assume he was still involved in some level and ganging activity or the things he was involved .

before somebody was about to get because he switched on so he had to care of, you know, exactly.

He was packing for a reason, right? Well, okay, so he gets off. The the court agrees with him, so he gets off again. But then the case goes all the way of the supreme court, the judges rule and unanimously that jack Miller did not, in fact, have a right to a sort of shocker. They went with the continuing kind of interpretation that the second amendment has to do with a malaya.

But I didn't stay that way, right? obviously. No.

yeah, we're going to get to up. But why I think it's really fascinating about this is that IT shows that the interpretation of the second amendment of Franklin, any amendment, is a living thing. IT happens within a context of the moment.

So a political society omy context at that time, with with gangs being know, viewed at least by the federal government as a big problem in the united states. And the U. S.

Being admitted that this economic free fall in the idea was that they wanted to have put a stop to what they views is rampant crime. So perhaps that influences the ruling. And that is something that we really took in from .

this case after the break. The second limit takes a big turn .

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about IT we're back with a host of the line on the surprising past, present and future of america's emma's when we left off earlier ah you were telling me about the double crossing bank high story behind the second amended is keep going like where's that story now because I there right IT did not .

um but interestingly IT took a very long time for IT to change again so so like you said we left off with jack Miller. He had this sort of shotgun, and he made the case that he had the right to have this gun. The supreme court at the time disagreed, and that took all the way until two thousand eight for IT to change again.

In the context of that is that many judges on the court started at that time to interpret these amen through the lens of something called originalism um and what that means is the originalist believe the constitution should be interpreted based on the meaning of its words at the time that I was ratified. So basically whatever they meant then is how we should interpret IT now. So then in two thousand and eight, a case comes before the supreme court called dc verse heller, the supreme court, in a very close decision that was authored by justice, the late justice antient kolia looked back at eighteen century dictionaries. They even went back to english common law from the seventeen hundreds to argue that in the original text, the founders actually intended the second amendment to mean that this right isn't just for malicious, but for individuals to. And that ruling ushered in the modern form of the second amendment that we know today, which really just sixteen years old, which really affirms the right for individuals to own weapons for self defence for other reasons, and rejects this idea that IT has to be for a militia.

That's interesting because I think a lot of people would think that all this has been decided you know wrong ago and that something so recent um and IT IT sounds like with this sort of interpretation this kind of originalism IT treats the founders almost as profits 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 installed.

That I would imagine though that would be very hard considering a lot has changed since seventeen hundred hundred and eighty. It's a very different world. They don't know about facebook, cell phones or or Frankly.

the types of weapons that are available, right? Know that was written in 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 and killing people. So I I will say I think the originals would make the argument that wearing too far from the amends gets away from the original ten and and that basically, if the constitution doesn't fit our present moment, that what we should do is just pass new amends rather than kind of reinterpret existing in minutes to fit the moment. But I do think it's fair at the same time to point out, like you said, things are changing our societies way more complicated than they used to be, and that applying the rule, you know, nothing amended from the seventeen hundreds in the way that they intended today may miss a lot of the complicating factors is something that the court still hasn't worked out in a lot of ways in our society still hasn't worked out. And I think it's gonna an ongoing struggle for for years to come.

What if I really interesting here is that some minutes seem really clear, and then there are others, like the second amendment, and of course, the first woman, that are just the source of in this debates. So move in on. Let's talk about the first emit.

How's the right? They need guarantees. Freedom of speech been interpreted and reinterpreted over the years. Well.

first, I mean, there was a disagreement about what IT met from the very beginning. So the amendment says, among other things, congress shall make no law bridging the freedom of speech. And at first, plans.

That seems clear, right? But even seven years later, after that was past, congress actually passed a law that prohibited speech that critics the federal government. And so as you can see, immediately, they started eating away at the idea, because it's really tRicky, right? On the one hand, you want to to protect people from harm.

On the other hand, you want to maintain free expression. And three exchange of ideas is sara all the things we hold to be sort of important in the us. So the course have to decide where is potentially dangerous speech, become speech that causes real harm, and when is the worth stepping in. And so over the years their decisions, I have shifted and shifted again. Let me tell you two pivotal moments, two stories that have shaped free speech trades today.

Um the first is in one thousand nine nineteen, while the red scare was in full swing, an activist named in need, a witney, gave a speech for the communist labor party and was promptly arrested on our case actually later landed in supreme court where the justice is upheld her conviction and applied an argument about free speech that would remain the president 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 like a lot of a way to limit people's free speech, right? Because it's vae, like in this case, Whitney wasn't calling for immediate violence, but he was still perceived as a threat by the state because of a relationship with the communist party, which obviously did threaten to violent over through the U.

S. government. And that was enough to regulate. But then in another story, in one thousand nine hundred and sixty nine, the limits of free speech became a lot more specific um marian and Franks actually told us the story. She's a law professor at the university of miami. And IT starts when a cook cuc's clean leader named clearance bin nberg held a rally in ohio.

And at this rally he is in full clan rigali speaking to all of these other hooded individuals and says, if the White race, uh, continues to be a pressed by the president and congress in the supreme court, we may have to take and he calls IT revenge. And during that rally, they then burn across and they are Carrying weapons. They're using anti black antisemitic cars.

It's it's pretty clear that it's meant to be threatening and intimidating. And the the the broadcast of of the speech is is not just played on local news, but that makes national news. So everybody really has the hear IT.

So brand berg is actually convicted in ohio for that speech. And that case is then chAllenged. And they 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. Here's marian drinks again.

IT says you can't prohibit people speech unless the speaker intended really to insight imminent law of the action. That is pretty much has to happen immediately, and IT has to be really likely that, that low business is going to happen.

So for example, if you are saying something to try to start trouble, which many people would argue that what brain and berg was doing at is kk kali, but no one's really listening than the government can't restrict IT. The speech has to be both intended and likely to trigger immediate unlawful action.

That sounds like a very nar interpretation of what can be prohibited. I mean, the K, K, K was actually extremely violent. I mean, they were a tourist organization.

I mean, the objective facts totally bear that out, right? Which shows you just how big of a shift this was from the unneeded witney case. In a period with there was just so much fear about communism, the government decided I could restrict speech, that even vegan threaten violence.

But by the time we get to brand and berg in thousand nine hundred and sixty nine, the court gives his very threatening speech way more protection. So you can only regulate IT if you create an immediate threat. And that's the standard we actually live with today.

And you see this issue even playing out today. I mean, when you think about Charlotte le Virginia and twenty seventeen, there was a rally that took place um there were White supreme es. They are Carrying flags with taxi in bloom weapons, shouting racist chance and one counter protester was hit by a car and killed. So even the speech, that is, hate speech, is still protect IT though, right?

Yeah, I mean, with that example, a clear distinction that the hate speech on its own was constitutionally protected, right? I'm going out with those, the emblems, weapons, even the shouting of racist chance, but organizing exciting violence that is not protected under the constitution. And so the Charlotte organizers were lost 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 factor into the question of free speech right now because it's reading really big questions that are making IT even more complicated, right? As IT stands, these rules apply online to but there is a big question that's currently a 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 .

after the break of forgotten, a limit makes its case arguments happen.

And our body's automatic response to conflict doesn't always help. We may start to feel anxious or angry, making IT even more difficult for .

us to see I to ee. Over time. That becomes contempt. And contempt is a very destructive interpersonal process here.

how science can help us reframe and make the most of our conversations on the shore of podcast from M. P. R.

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We're back with the sunday story talking constitutional amends. So some of minutes, like the first and second amendment, there are political lightning rod. You hear about them all the time, but there are other amen, that are rather mentioned, almost forgotten. Like, did you learn anything surprising about these under does your less well known a minute?

absolutely. I think you know why there not all political firestorms. You realize just how important some of those those your amendments actually are. And one example that um a lot of IT was surprising to me um 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. Then if somebody tries to call me on 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 set side by sides since about delayed seventeen hundreds.

But here's what IT actually says.

And 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.

So in more modern terms.

the army can .

live in your house.

Yeah, so the army can't live in your house. nowaday. In twenty twenty four, right? IT feels really out of place because it's like, obviously the army can live in your house.

But when the bill rights was written, tom bell, he's a law professor at chapman university and and he's kind of obsessed with the third member. He said that the the third amendment was the amendment everyone agreed on. Remember I mentioned the federal and federalist. There was a lot they disagreed on well at you know at the time coming off of the revolutionary war, there was a common practice that the army would stay in people's homes, sometimes forcefully and they have eat their food.

They're sleep in their beds um and so this group of men at the time in the in the last seven hundreds looked into the future and thought this is a critical right top three right third is the third is so clearly at the time I was really important and obviously pretty common. Um it's it's interesting though, even like listening to that language of like quartering in your house that feels like that third amendment is sort of stuck in time and you know been barely tigers actually has never made IT up to the supreme court and tom well explained to us that amendments they're not just about the texas writ on peer, right? What keeps them relevant, as we've been pointing out, is, is how they get interpreted and applied by the courts.

So it's very easy look at certain yeah interesting historical artifact is not relevant now. And I thought that too. And then I started in research, and I discovered the third has been violate in american history, time and again, repeatedly.

during the war, 一， twelve, the civil war, world war two.

But to the share, my profession, no lawyer anywhere, seems to have noticed, hey, um this is a corner of troops during time of war and congress and tell them us how to do IT. This is pretty plainly violated third far until no law you noticed them so so much for our construal rights. I mean, is wonderful the written down. But if nobody gets up and offends them, they are not even worth the paper are written on.

I think that's a powful, right? If nobody gets up in defense and they are not even worth the paper they're written on. So he's really saying, you know, unless people take IT up and and and have these debates and talk about them and chAllenge them, right, that's where the actual power of the amendments comes from. And he says, you know, while IT hasn't been applied very much yet, he says he could become relevant again with more national guard disapointment for things like climate disasters, you know, hurricanes and things like that, or government responses to large protest. Knowing this amendment exists could actually be an important backstop to protect citizens from more chaos in times of chaos.

The first ten ament at the bill of rights, they were ratified shortly after the constitution. But now, as you know, who's said we're up to twenty seven a minute, do you have a sense of whether more amendments could be added to the constitution?

I don't have a Crystal ball, but what I will say is the last time we ratified in an amendment was ninety, ninety two. And actually right now, IT seems like we're in a moment where there is a lot of resistance to adding new amendments. I'm thinking about things like the equal rates amendment or an amendment that would secure abortion rights. These are things that people have pushed and these efforts have failed .

and know it's also partly because it's very difficult to pass in a min terms of numbers. IT takes two thirds of the majority in both houses, house and senate, to propose a new amendment. And then IT takes three forts of the states to ratify something new. And like, can you think of anything the states in this country right now agree on enough?

And if there's one thing IT seems like a minutes need its .

agreement yeah you know I will say that process often looks messy. It's often not linear. Um and and I I think it's tempting to look at that and say, well, the system is broken but one of the things you know in looking at these these amendments does come through for me is that um understanding that the questioning, the interpreting the reinterpreting is part of the design actually makes you realize that maybe is actually exactly how it's meant to work. Maybe it's an indication that the system is working and those checks and baLances that push poles is actually a part of the process. When we think about the fact, though that we haven't had a new amendment in decades and that there is this conversation right now, uh, where some people say we shouldn't amend the constitution anymore, the thing i'm thinking about is that, you know, as the world continues to change, arguably faster than ever, and looking back over the last two hundred or so years, when IT seems like the moments that the amendments changed or were added happened at those times of extreme technological, political change, IT raises the question, what is going to be the role of amendments new and old in the future?

To learn more about the evolution of america's founding document and what that says about us, subscribe to the through line podcast. So far, they've look at six minutes in there, we the people series, with more to come.

This episode of the Sunny story was produced by kim nator fane Peter sa, with help from Sarah White men IT was edited by genie h, special thanks to july cae senior supervising editor, a through line queally master the episode and Kevin vocal did the fact checking. The sundays story team includes Andrew mambo, jun yan and our supervising senior producer, r leona. Symptom, I read a gucci is our executive producer.

I'm I character. O A first is back tomorrow with all the news, you need to start a week. Until then, have a great rest of your weekend.

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