Constitution Breakdown #1: Nikole Hannah-Jones

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Speaker 4 This is the 99% invisible breakdown of the Constitution. I'm Roman Mars.

Speaker 4 So last year on the breakdown, we tackled the Powerbroker, a book so long we needed an entire year to get through it.

Speaker 4 But it also happens to be the best book of all time, so you know, we spent our time well. If you haven't listened to it, you definitely should check it out.

Speaker 4 The series won tons of awards, including three Webbies. I'm really proud of it.

Speaker 4 And when I was thinking about what to do for our book club breakdown this year, I considered some similar books like biographies of fascinating people, explorations of urban planning history, of American history, world history.

Speaker 4 But when I thought about what I really wanted to talk about right now in this moment, it was something totally different from the power broker or any sort of big, weighty masterpiece of a tome.

Speaker 4 I wanted to talk about the Constitution. At just 7,591 words, including all 27 amendments, it's about 1% of the length of the broker.

Speaker 4 But each of those words carries so much weight and history and meaning and has so much impact on our lives. And it has so many interpretations.

Speaker 4 So in many ways, breaking down the Constitution is even more daunting than any 1,200-page book.

Speaker 4 But lucky for me, I happen to already have a show about constitutional law.

Speaker 4 It's called What Trump Can Teach Us About Con Law, and I produce it with my neighbor, the law professor Elizabeth Joe, and she's going to lead us through the Constitution.

Speaker 4 So for people who are unfamiliar with the other show, Elizabeth, can you introduce yourself?

Speaker 5 I'm so excited to do this with you. I'm a law professor at the University of California Davis.

Speaker 5 I teach courses on criminal procedure, privacy, but most important for our show, the introductory class to constitutional law.

Speaker 5 I also spend way too much time online and worrying about what I see there.

Speaker 4 So you're the perfect person to do this with, and honestly, the only person I would want to do this with.

Speaker 4 And we're going to go through the Constitution, article by article, maybe even breaking up an article over a couple of months if it's especially complicated, or condensing some amendments as needed.

Speaker 4 We're going to really try to understand our country's founding document, but we're going to do it book club style with a different guest each month and have a fun discussion.

Speaker 4 And really, anything goes.

Speaker 4 It could be all about context and history and how the Constitution affects us in our present day lives, but it could also be about just the text itself, the weirdness of the text of the Constitution, just anything that comes to mind when we talk about the Constitution.

Speaker 5 We'll take a look at the genius and the many, many flaws of the Constitution.

Speaker 5 It is a short document, but let's face it, it's dry, filled with weird capitalization, odd punctuation, and no explanation whatsoever.

Speaker 4 That's right. And by the way, we're still doing what Trump can teach us about common law, where Elizabeth explains some current event to me through the lens of constitutional law.

Speaker 4 That's going to be the second half of each episode.

Speaker 4 So the first part will be the breakdown of some piece of the Constitution, and the second part will be about constitutional law that's impacting our lives today.

Speaker 5 Right. So we're starting, of course, from the very beginning with the preamble to the Constitution.
So Roman, it's just 52 words. So why don't you read it for us?

Speaker 4 I would love nothing more. So here we go.

Speaker 4 We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Speaker 4 Pretty good. I mean, not me.
The writing was good. The reading was okay.

Speaker 4 So, to talk a little bit more about the preamble, to open up our book club, we brought in journalist and writer Nicole Hannah-Jones.

Speaker 4 Nicole is an investigative reporter for the New York Times Magazine and the night chair in race and journalism at Howard University.

Speaker 4 She's perhaps best known as the creator of the 1619 Project, which posits that every aspect of America was shaped in some way by slavery and its legacy.

Speaker 4 Nicole wrote about the preamble in her opening essay for the 1619 Project, and so we thought her perspective would make for a great discussion. So we started with her reaction to those 52 words.

Speaker 6 I mean, of course,

Speaker 6 You automatically think about that phrase, we the people, which are, you know, some of the most famous words that we think about when we think about this nation being constituted. And then I'm Black.

Speaker 6 So

Speaker 6 my people were not considered part of We the People when those words were written. So

Speaker 6 much about that original constitution, including the original Bill of Rights, to me are about not being included, about being excluded from what and who the founders had in mind when we call our official founders when they drafted those words.

Speaker 4 Yeah.

Speaker 4 That's definitely the first thing I think of, too, is that only

Speaker 4 one of the three of us was part of that we in this discussion, which is, you know, is a glaring issue with the preamble to the Constitution, for sure.

Speaker 4 So I'm going to sort of ask Elizabeth here, like in terms of the preamble, what... What is the preamble trying to do here, sort of like in terms of the legal document of the Constitution?

Speaker 5 Sure. It's really short.
It comes at the beginning of the original Constitution, of course, and it actually does a lot in that one sentence.

Speaker 5 First, it tells us where the power to enact the Constitution comes from. And it says we the people, as we've discussed, it doesn't come from the states or from, you know,

Speaker 5 from the king or anything like that. So it comes from the people directly.

Speaker 5 And then, second, it identifies the six very lofty goals of the Constitution, things like ensuring domestic tranquility, establishing justice, although of course it doesn't define what any of those things mean.

Speaker 5 And then finally, it shows us the intent of the framers when it says that this is for ourselves and posterity.

Speaker 5 In other words, this is not a document, the original Constitution meant to be a kind of temporary solution of the 18th century. It's meant to be a document that lasts for generations.

Speaker 4 And it has. I mean, this is the longest in-use written constitution that exists, which is kind of stunning.

Speaker 5 That's right.

Speaker 6 You know, when you look at

Speaker 6 the preamble, the entirety, not just, you know, my focus on we the people,

Speaker 6 and then thinking about this,

Speaker 6 you know, the idea that it is the kind of longest

Speaker 6 still in use constitution, as a writer, I also can't help but just think about how remarkable it is and what it must be like to try to sit down and put words on paper

Speaker 6 to create kind of the parameters of this new nation and this aspirations like just to try to constitute a new nation in and of itself is such a bold and audacious act and then to say how do we write the very opening words uh to the document that's going to hold and this whole thing together that's going to guide this thing and so it's both very

Speaker 6 specific but also necessarily vague and i'm i'm sure we'll get into

Speaker 6 all the tensions that vagueness will bring forth, but you also have to be. So even thinking of we the people, like we know who we the people was referring to then, but it's also so,

Speaker 6 it allows for so much expansion at the same time.

Speaker 4 That's right.

Speaker 6 Because now we the people is, it is me. It is Elizabeth.

Speaker 6 right it is women uh it is people who descended from slavery it is people who weren't even considered as having the right to have citizenship at that time and so it's deeply flawed as the founders were it is kind of a remarkable

Speaker 6 thing to to be able to put this vision out into the world and both say you know we are going to establish justice and and it tells you what was most important to them as they are deciding to uh break off you know as they had broken off from the most powerful nation in the world at the time and and what were their values but also what were they worried about um so anyway i just i just was thinking about just, you know, as we see all of these Supreme Court rulings coming down and they are interpreting this document,

Speaker 6 what an impossible job it is to try to create something that can withstand centuries,

Speaker 6 that

Speaker 6 can both give you boundary, but also allow you to have this much broader interpretation.

Speaker 4 So

Speaker 4 when you read We the People in that context,

Speaker 4 do you see the intent of open interpretation over generations in those words? Or do you think this is

Speaker 4 partly happy accident?

Speaker 6 Ooh, oh, I'm actually really curious what you think, Elizabeth, as a constitutional scholar. You know, I don't know.
I can only look at,

Speaker 6 so part of me says, absolutely, they did not intend someone like myself to be included in the protections of this constitutional document and we can we know that because we can look at what else they said in the in the constitution but on the other hand i also know that the drafters were complex and complicated men who even around the issue of slavery um were grappling with the hypocrisy of what what they were doing and allowing, were grappling with whether or not abolition would be possible, who understood abolition would come one day.

Speaker 6 And so I can't say that I believe they really intended it to be read as broadly as we do now, but I think they certainly expected that one day it would be more inclusive than it was when they wrote those words.

Speaker 6 And I do think that so much of that, you know, even the fact that they don't put the word slavery or slave in the document is they are

Speaker 6 looking to how they will be seen one day.

Speaker 6 And as they are creating this document for posterity, they're clearly thinking about the future and how they will be judged against this document and this nation that they founded against this document.

Speaker 6 So

Speaker 6 yeah, maybe I think they allowed for some room, some expansion, but clearly not the way we have now interpreted. I don't think so.

Speaker 5 That sort of tension is like internal in the preamble itself, right? We were talking both about the intent of the people who made it, thinking about a posterity they couldn't possibly imagine, right?

Speaker 5 What, like five, 10 generations later, what would the country look like? And then thinking to where we are now, you know, Nicole, you and I look at we the people and we see ourselves, right?

Speaker 5 And that's kind of the remarkable genius of the document, as flawed as it is and as flawed as its interpretations have been.

Speaker 5 And so I think part of what's hopeful for me anyway, and perhaps for you, I'd love to hear your thoughts on it, is that it's that kind of tense, ambiguous, open-endedness that has, I think, sustained the Constitution and why it's still with us today when so many other countries around the world, they've gone through many iterations of a founding document.

Speaker 4 Yeah. I mean, you know, the funny thing about the Constitution is many authors.

Speaker 4 The author of the preamble is mostly credited to this fellow named Governor Morris, who, if you, you know, if you want your kid to have a leg up on life, name him governor, you know, like that's a

Speaker 4 good way to go.

Speaker 4 But, you know,

Speaker 4 I think you can kind of tell

Speaker 4 in,

Speaker 4 you know, he was an abolitionist. You know, like, I think you can kind of read some of that in there,

Speaker 4 even though like the rest of the document placates, you know, the practice. And

Speaker 4 I don't know, I kind of feel it, but I also feel the strange tension in it. And it's, it's, it's, I think it's fascinating.

Speaker 4 It's also just like, you know, it's so soaring as a beginning, like, like as a, you know, if we're reading this just as text, the plot of the Constitution like comes to a screeching halt the next paragraph.

Speaker 4 I mean, it just goes real boring, really fast.

Speaker 4 And this moment here is this moment where it really, the openness of it all is, I think, is evident in its text. And I think it's really fascinating.

Speaker 4 But speaking of the stuff that follows, The Constitution has always been full of contradictions, especially when it comes to slavery and civil rights.

Speaker 4 And so on July 4th, 1854, the abolitionist William Lord Garrison burned the Constitution at a public rally, saying that it was a covenant with death and an agreement with hell in the way that it countenanced and even enshrined slavery.

Speaker 4 And at the same time, Frederick Douglass was arguing kind of the opposite, saying that the Constitution and particularly the preamble, you know, should be embraced rhetorically and use it as a guiding light towards the abolition of slavery, even with its flaws and contradictions.

Speaker 4 So, when you hear the preamble, do you feel those different sentiments? Like, which sentiment feels more resonant at any given moment?

Speaker 6 Well, one, I think we should be clear that

Speaker 6 originally Frederick Douglass considered the Constitution a pro-slavery document. Yes.

Speaker 6 Right. And in fact, he splits with Garrison on this later, and he announces a change of opinion.
Right. And I think what happens, I mean, you know, this is my interpretation,

Speaker 6 is he realizes it's not actually very effective.

Speaker 6 Like if you're trying to appeal to the morality of Americans, of white Americans, in saying that slavery is wrong, it was a much greater rhetorical argument to say, actually,

Speaker 6 your own constitution mandates that slavery must end, that this is a constitution for a free people. And so I think that that's very true.
Yeah.

Speaker 6 We have come to, of course, now interpret this document as a liberty document, but it was not.

Speaker 6 We know the arguments over slavery and its limitations as they are drafting the document. We know that the three-fifths compromise goes to benefit the slaveholding class.

Speaker 6 But I also think much the way that, you know, really for Black folks, the Liberty Document is the Declaration of Independence.

Speaker 6 And it's Black people who turn the Declaration into a liberty document.

Speaker 6 Of course, the Declaration is a succession document, but Black folks read: you know, we hold these truths to be self-evident that all men are created equal, endowed by the creator with unalienable rights, as saying, oh, this applies to us.

Speaker 6 And that's much the way that we and Douglas end up reading the Constitution. Is

Speaker 6 you meant this

Speaker 6 to sustain the property interests of white men, many of the drafters being themselves engaged in

Speaker 6 chattel slavery, the property of men. But we read it as demanding liberty.
And this has been the role that Black Americans have always played in this country is

Speaker 6 you have the lofty concept. We have to try to make that concept manifest.

Speaker 5 It's so interesting that you mention Douglas's optimism, particularly about the preamble, because one of his famous speeches, of course, about the preamble is in direct reaction to Dred Scott.

Speaker 5 Maybe we should recap for our listeners, you know, what Dred Scott is.

Speaker 5 This is the infamous 1857 Supreme Court decision in which Dred Scott, an enslaved man, sued for his freedom on the basis that he had lived in a free territory where slavery was illegal.

Speaker 5 And although his original claim was about the basis for recognizing his free status, by the time his case goes up to the Supreme Court, it's really only one question, whether or not Dred Scott is considered a citizen of the United States.

Speaker 5 And the United States Supreme Court said no.

Speaker 5 In an opinion by Chief Justice Roger Tawney, Tawney says that among the claims or among the reasons why Dred Scott can't be considered a citizen, he says, look at the preamble.

Speaker 5 The Constitution's preamble does have these broad words that we've been referring to. We the people, could black Americans be part of that political community?

Speaker 5 And essentially what Tawney's opinion says is, no, we can't take the preamble literally. We don't take it literally.

Speaker 5 We have to see that, in fact, the Constitution refers to the institution of slavery, refers to enslaved people, and therefore Black Americans are what he calls people of an inferior order.

Speaker 5 And that actually, I'm curious to hear, Nicole, what you think of this, because you discussed in your 1619 project essay that Dred Scott is kind of the root of the endemic racism that we see today.

Speaker 5 And I'm curious, could you say more about what that legacy means for folks?

Speaker 6 Yeah, I mean, you know, what a time to be talking about Dred Scott when we have a president who is threatening to end birthright citizenship.

Speaker 6 And what normally we would say he doesn't have the power to do that. We have a Supreme Court where it's not clear whether it will be interpreted as

Speaker 6 whether he does have the power to do that. And when he's threatening to strip citizenship from people whose political views he doesn't like.
So I

Speaker 6 have thought about, of course, when you read Dred Scott, it's not only that the ruling is saying black people are of an inferior race. They're saying that black people are of a slave race.

Speaker 6 That our natural innate status is to be enslaved and enslavable and therefore to be property and to never be part of we the people because we're not even people.

Speaker 6 And so to me, of course, the foundations of that began much, much earlier before that ruling.

Speaker 6 But to have the highest court in the land who's charged with interpreting the Constitution and its protections to argue that Black people, people who descend from Africa exist outside of the protections of this document, then of course that then.

Speaker 6 justifies and codifies within our, not just our legal system, but in our political systems and our social systems, this idea that slavery is not a condition, right?

Speaker 6 Which is, of course, the way that I think about it. And that many of our founders, frankly, who understood that Black people were human beings, but that we can have the condition of being enslaved.

Speaker 6 What he's saying is it's not a condition. It is innate.
Being a slave is innate. It is who you are.
But that has been hard to shake. That so much of the beliefs about

Speaker 6 this kind of inherent inferiority of Black people, that we are just a lesser people, and it has nothing to do with the fact that our ancestors were enslaved,

Speaker 6 that it was because we were lesser that our ancestors were enslaved. We're clearly still grappling with those ideas, even something as sacrosanct as birthright citizenship, because the belief is

Speaker 6 it was brought about on faulty terms because Black people should not. have gotten automatic citizenship and therefore a lot of other people should not have as well.

Speaker 4 Yeah.

Speaker 4 Elizabeth, you mentioned that sort of like the preamble is sort of invoked in Dred Scott. And, you know, we've talked about over the years lots of clauses that have been invoked in constitutional law,

Speaker 4 you know, the sort of establishment clause and the equal protection clause. How often is the preamble used in constitutional law pointed to in some way?

Speaker 5 Well, it's used today

Speaker 5 in passing as a way of trying to say, well, we the people, you know, we talk about a more perfect union for rhetorical purposes, but it died a pretty quick death, actually.

Speaker 5 And that's because of a case from 1905 called Jacobson versus Massachusetts.

Speaker 5 So why don't I say a little bit about that, right?

Speaker 5 The case of Jacobson versus Massachusetts involved a legal challenge to a Massachusetts law that permitted the use of mandatory vaccinations.

Speaker 5 And Jacobson, Henry Jacobson was a fellow who said, I don't want that to happen to me.

Speaker 5 There had been a smallpox outbreak in 1901, and the city of Cambridge required everyone to get vaccinations against smallpox.

Speaker 5 You can think of Henry Jacobson as kind of the original anti-vaxxer, right? He says, well, how do you know these are effective? They might kill people.

Speaker 5 There's no reason to show that they're effective in combating smallpox. So he lost in the state courts, but his case eventually goes up to the United States Supreme Court.

Speaker 5 And one of his arguments was that such a state law violated his rights under the preamble.

Speaker 5 And in 1905, the Supreme Court decided in a very short paragraph, no, you don't have rights under the preamble. Nobody has rights.
There are no powers or rights that arise from the preamble.

Speaker 5 And that was the end of that.

Speaker 5 And so what we have after 1905 is really no one really pays that much attention in terms of legal scholarship or, you know, as an argument in court.

Speaker 5 Lawyers don't refer to the preamble as a way of advancing cases because of the Jacobson case.

Speaker 4 Huh. That's fascinating.
And we get it. It obviously has echoes.
Like establishing justice is handled a lot in the Fourth through the Eighth Amendment, for example.

Speaker 4 Like it sort of casts forward into ways that they're specifically addressed. But I mean, we put a lot of meaning into the clauses and opening clauses of amendments, for example.

Speaker 4 And it's interesting to dismiss this opening sort of gambit for the Constitution completely, you know, like in terms of conferring rights at all. It's just a statement of ideals, I guess.

Speaker 4 I don't know.

Speaker 5 I guess so.

Speaker 5 I mean, in a way, it's too bad because it has a lot of these open-ended phrases, as we were talking about earlier, that really could be the basis for a lot of change, positive change in society.

Speaker 5 But the court essentially decided very early in the 20th century, nope, you have to look elsewhere in the Constitution if you want to make those kinds of changes.

Speaker 4 Interesting.

Speaker 6 Yeah, never knew that. Fascinating.
Also, fascinating that it would be a vaccine case. He just always, when you study history, you realize we never resolve most issues.

Speaker 4 That's right.

Speaker 4 It's totally true.

Speaker 5 Well, that's kind of the irony, right? And that is, what do we really want from the preamble?

Speaker 5 You know, we talk about the fact that this is, you know, dismissed as a source for Dred Scott to advance his arguments in 1857.

Speaker 5 But if you think about it, you know, I think everybody today would say Dred Scott is a terrible case. Dred Scott should have won.

Speaker 5 The court should have recognized him as a citizen of the United States. You know, the preamble should have been one of the reasons to confer or to recognize rights for him.

Speaker 5 But that sits uncomfortably with this idea of a guy like Jacobson, right? Because if the preamble had been a source of rights, well, maybe this early 20th century anti-vaxxer,

Speaker 5 right? And that kind of shows us the complication of saying these are sources that we should turn to or advocate that the court should use as a way of

Speaker 5 advancing the law, of recognizing individuals' rights. It kind of shows how complicated these issues can be.

Speaker 4 Well, in the nature of the Constitution itself, I mean, in your most recent essay, Nicole, like you talk about the fact that the Constitution didn't change for Trump to attempt to roll back many of the advances in civil rights of the 20th century.

Speaker 4 Like the Constitution didn't change at all. It was

Speaker 4 political will that changed. Can you talk about that?

Speaker 4 Like, what does it mean to have this thing that, I don't know, like, when I started this project of talking to Elizabeth, you know, every month, it was about using the Constitution as this blanket to protect me because I was like worried about

Speaker 4 the country. And then I realized that for a while that felt comforting, but then it's just like I realized that the rules don't matter as much as they once did.

Speaker 4 It just feels like that's the vibe of the country right now and sort of what the recent rulings are like. So like

Speaker 4 when the Constitution doesn't change and it's full of contradictions and it's really just political will that moves these things around, where does the Constitution sit inside of your thinking about the world and how it is?

Speaker 6 So,

Speaker 6 you know, again, as a descendant of people who were enslaved in the United States, the Constitution, of course, has always been a very complicated document for me. I don't know that I have ever felt

Speaker 6 that the Constitution was a protected blanket. You know, again,

Speaker 6 we were only included as property originally. And so

Speaker 6 the protection of the Constitution to me is most invisible when you've never needed it.

Speaker 6 When your rights are innate, it feels like you have the protection because I've never had to actually fight for them.

Speaker 6 But for Black Americans and many other marginalized groups, there's been a constant struggle. And so

Speaker 6 to me,

Speaker 6 I mean, the Constitution begins for me with the Reconstruction amendments.

Speaker 6 The 13th and 14th. The 15th Amendments are considered like second founding or bringing about the second founding.

Speaker 6 This is when the Constitution starts. And this idea of equal protection is an amazing thing to have placed in your Constitution.

Speaker 6 And yet, it's so often

Speaker 6 what that means and the reality of that has been left to nine unelected white men.

Speaker 6 who get to decide what that means for the rest of us. And until very recently, nine unelected white men for most of the history of this country.

Speaker 6 And so rights are meaningless if they can't be enforced or if they are not enforced. And

Speaker 6 we do have a constitution

Speaker 6 that is supposed to protect the rights of minority groups, whatever that minority may be. And I think that's part of the reason it has lasted so long is it does actually have that.

Speaker 6 But again, just because it exists doesn't mean that there is an enforcement of that. So I think it always provides this hope,

Speaker 6 right? That it is not impossible, but there is something to it having to exist in a country where the rights you have can be determined by, you know,

Speaker 6 whether or not you can get enough people to agree that you should have those rights.

Speaker 5 And to constantly have to exist in a state of if the majority or the voting majority decides you shouldn't then you won't um and and that is also what the constitution allows but it's also an impossible thing to create i think a constitution that will always work in whatever way you think it should work yeah yeah so nicole i i have to ask you then today how optimistic are you uh about the use of courts maybe not the supreme court the use of courts to try and enforce norms of equality and justice and kind of maintaining that progress that we've seen since the civil rights era based on everything you've been writing and speaking about.

Speaker 6 Yeah, I mean, you know, again, I'm speaking to a constitutional scholar here, and I am not.

Speaker 6 But obviously, just looking at the way that the lower courts have been

Speaker 6 ruling against

Speaker 6 what to me are some pretty blatantly unconstitutional actions, the courts have held out of the three branches of government, the courts have held the most

Speaker 6 and have actually, to me,

Speaker 6 been largely serving in their appropriate role in the systems of checks and balances. But of course, the issue is the highest court that has the final say is not.

Speaker 6 So

Speaker 6 these injunctions against things like birthright citizenship or trans rights, I mean, any number of cases. I was just reading the

Speaker 6 bench ruling from the Reagan appointee who called Trump's DEI rulings blatantly discriminatory.

Speaker 6 I think he said in his bench ruling before he released his opinion that in all his years on the court, now this is a Reagan appointee, right?

Speaker 6 That in all his years on the court, he had never seen such blatant discrimination from the federal government. And so you're like, wow, okay.

Speaker 6 But then you're like,

Speaker 6 if that case is appealed, which it probably will be,

Speaker 6 then you're going to go up to a Supreme Court that to me

Speaker 6 is ruling in line with the vast history of the court.

Speaker 6 And this is the other thing.

Speaker 6 I think people tend to think about the Supreme Court as the warrant court. That that's kind of how we encapsulate what the Supreme Court has been in America.

Speaker 6 And I'm like, no, you know, that's the vast majority of the time in the history of the United States, of course, the court has ruled against protecting minority rights.

Speaker 6 And it's been rare that it has expanded rights

Speaker 6 for marginalized people. And so that's my fear: yes, I think the lower courts have been doing a really great job of kind of holding the line on our constitutional rights.
But

Speaker 6 if I were to think of how we are going to write the history of this period, 20 or 30 years from now, this is going to have to be considered one of the worst courts, most regressive courts in the history of the United States.

Speaker 6 I don't see how we can see it any other way,

Speaker 6 in my layperson's opinion. Yeah.

Speaker 4 I mean, so we talked about the inadequacies of the Constitution as a backstop to rights as a legal document.

Speaker 4 As a symbolic, or at least, you know, I don't know, the... the best parts of symbolic documents, I suppose, in different moments.

Speaker 4 It reminds me a little bit of this,

Speaker 4 what you wrote about, about your father flying the U.S. flag

Speaker 4 and how this was a thing that embarrassed you as a teenager. And then you began to embrace the idea of it as an adult.

Speaker 4 Does that sort of analogy hold true for the Constitution or anything like that for you?

Speaker 6 Interesting question.

Speaker 6 So one,

Speaker 6 I don't have to tell either of you this, but definitely not you, Elizabeth. Like most people don't have any idea what the constitution says exactly right

Speaker 6 i mean they the we the people is literally probably the only thing they can cite and something something about the second amendment and maybe a little bit about the first amendment some people might know the 13th um

Speaker 6 some things about you know the right not to incriminate but but most people don't know anything about the Constitution. And it really is, you know, not the most interesting read.

Speaker 4 That's what we're trying to, we're trying to make it a little bit better for people to have a, you know, like have friends along the way with them. But yeah, but I'm a teacher.

Speaker 5 I know that struggle.

Speaker 4 It's not.

Speaker 6 I mean, I was like a nerdy. I just was super nerdy.
I had like a copy of the Declaration and the Constitution on my wall and amazing bedroom when I was a kid.

Speaker 6 It's amazing now because it made for a hard childhood to be impressed.

Speaker 5 I am impressed.

Speaker 6 But you know,

Speaker 6 I think I have a nuanced view of the Constitution. Again, like just taking the rhetorical value of we the people

Speaker 6 and that it does allow all of us to see ourselves as part of the people and that there is something very powerful about constituting a nation on an idea that's not based on land or bloodline or all of those

Speaker 6 things

Speaker 6 is very powerful.

Speaker 6 And that

Speaker 6 is literally the only thing most people know about the Constitution, right? They know know it's supposed to protect your rights. They couldn't tell you exactly what those rights were.

Speaker 6 But that we do have rights that we are born into,

Speaker 6 I think is very powerful. I, of course, can see

Speaker 6 all the many flaws, all the many exclusions, and of course, the way that

Speaker 6 because it is a document that must be interpreted, and almost always interpreted by the most elite people in our society. are the ones who are charged with interpreting it.

Speaker 6 I can see all of the challenges and the failures, but could I write a constitution that would hold up to centuries? It's an impossible task that these men somehow kind of managed to do.

Speaker 6 So

Speaker 6 I'm of two minds on it, like most things. You know, even with, I understand why my dad flew the flag.
I'll never fly it, right? So I can understand

Speaker 6 where his patriotism came from, but also say that is not for me. That

Speaker 6 I personally will not feel that way about the United States.

Speaker 6 But I get it. And I think I feel that way about the Constitution.
I think there are amazing, you know,

Speaker 6 I'm a journalist. The First Amendment to the Constitution protects the right to free expression.
And I am part of the only profession that is protected by name. in the Constitution.

Speaker 6 And I think that's very powerful. And yet my book and my work is being banned from a classroom, from libraries.

Speaker 6 So we have this great

Speaker 6 idea

Speaker 6 that can be interpreted to me, whatever people in power want to interpret it as. And I think the thing that

Speaker 6 has been most astounding to me, and I'm actually curious to hear, I'd love to hear how you all are experiencing this.

Speaker 6 is that everything that we kind of thought was codified about governance is not enforceable.

Speaker 6 So

Speaker 6 if you have someone who just decides they don't really care what the Constitution says, you have a Congress that says the Constitution lays out what we oversee, what our roles are.

Speaker 6 But if you have a Congress that just says we don't care what that says, if you have a court that says actually we can have a king, then what is the Constitution?

Speaker 6 And I think most regular people like myself somehow believe that this document did have some enforcement mechanism, right?

Speaker 4 Like the fire alarm lever that we could pull

Speaker 6 if things started going off the rails. And you're realizing it really was just based on agreement,

Speaker 6 that we had the shared value and belief. And all you needed was someone who didn't care about that.

Speaker 6 for that person to be backed up by the other branches of government. And you see it was a facade in a way.
But I'm actually curious

Speaker 6 if this is, has this been surprising to either of you? Or did this, you always knew this vulnerability? I mean,

Speaker 6 I feel naive, but

Speaker 6 I didn't realize the extent of the vulnerability, I guess. And I'm curious what you think.

Speaker 4 That was the central tenet of our show and our discussions in the very beginning was like, I'm like, but doesn't it say we can't do this?

Speaker 4 And Elizabeth, and Elizabeth's basically saying, well, these are mostly norms and not rules, you know? And I don't know. So, so Elizabeth, could you expand on this?

Speaker 5 this like how surprising was this to you in this time period um even as somebody who studies it and knows the nuances of it sure it's not terribly so something can be not surprising and yet absolutely terrifying at the same time right i mean of course the whole constitutional system that we're in is essentially an honor code it's an honor code where we all agree that there are a certain set of rules and we are gonna abide by them not because somebody's gonna do something to punish us i'm talking about the highest actors in government but because we all agree that this is the system we're in.

Speaker 5 Now that we have an administration that doesn't agree with the honor code, you know, the basic premise of a lot of legal principles for government actors is like good faith or, you know, doing what's in the best interests of the government, whether it's domestic policy or foreign policy.

Speaker 5 When you don't have that underlying system in place, then it kind of feels like anything goes. And that is truly, truly terrifying.

Speaker 5 So, no, I'm not surprised necessarily because we've been watching this very slow erosion over several years. And this year, and I think you've pointed this out in your writing,

Speaker 5 everything seems to have eroded at a much faster rate. Sort of, we've sort of gone at hyperspeed.
And that's the thing that's most alarming.

Speaker 4 Yeah. I mean, this whole idea of a blitzkrieg of kind of executive orders is a sort of a devious or political genius.

Speaker 4 Like it sort of like caught all of us off guard because we're like, what is this real or not or what?

Speaker 4 And the court is slow. Executive orders are very fast.
I mean, we've talked about this as sort of the idea of stress testing the Constitution

Speaker 4 that the sort of the Trump administration was in the first one. I don't think we had no idea, or I had no idea how bad it could get.
I actually didn't think there was going to be a second

Speaker 4 Trump administration, so I didn't think about it too hard until pretty recently.

Speaker 4 But like, yeah, it's just one of those things that you realize the holes in all this that you see something like as plain as the 14th Amendment and realize that it could be questioned now is like so shocking to me.

Speaker 6 Yeah. Well, yeah.
And for me, it's just thinking again, like, and this is where I feel very naive because I'm like, I know what this country is

Speaker 4 capable of. Right, exactly.

Speaker 6 And yet, I couldn't have imagined that all the systems of checks and balances would be collapsed.

Speaker 6 You know, it's like there would be something that, you know, if it's not Congress, then it's the courts or the Supreme Courts.

Speaker 6 Like I said, I think the lower courts, they're not doing every ruling the way I think they should, but they're substantially, to me, trying to uphold the Constitution with their rulings. But,

Speaker 6 yeah, just that idea that

Speaker 6 you would have this kind of once in a,

Speaker 6 I used to say once in a century, but now I'm like once in a history of a country alignment and politician.

Speaker 6 You just, yeah, you realize it was, it was just all held together with a, with a promise, a handshake, like spit in the palm handshake.

Speaker 6 And that's very frightening, especially when you are a member of minority group or groups to understand.

Speaker 6 how fragile this has been. And again, I'm not shocked.
Like I study this for a living. I just was in Mississippi with, you know,

Speaker 6 people who were arrested 100 times fighting for democracy in the South. So I know what this country is capable of.

Speaker 6 I didn't think the America that Black people have lived in most of our lives would be the America that everybody's going to live in now.

Speaker 6 Right. Which, you know, is a little shocky.

Speaker 5 And I think, yeah, I think, and one of the things that's hard, I think, for most people to wrap their minds around is that what's happening now, this collapse, right, of our norms and our expectations of good faith in government is like, it's not like, oh, there'll be the next administration, then we'll figure it out.

Speaker 5 This is a, you know, a generational, multi-generational effect change that's going to happen.

Speaker 5 And, you know, sometimes, and I hate to sound really cynical about this, is like, I wonder whether in my lifetime, a lot of this will be on, any of this will be completely undone.

Speaker 5 I don't know how you feel about it.

Speaker 6 That's the same.

Speaker 6 I think that it's that American optimism and wishful thinking that leads people to think we just have to get to the next election.

Speaker 6 I don't think you can see this type of

Speaker 6 destruction of norms

Speaker 6 and think that it just goes back.

Speaker 6 The genie will not be put back in the bottle anytime soon. And I fear there's going to be a lot of destruction

Speaker 6 before we start to see a real turnaround.

Speaker 6 I mean, we haven't hit bottom, not even close.

Speaker 5 Don't say that.

Speaker 4 No, no, I agree. But like, is there something about

Speaker 4 the norms eroding towards

Speaker 4 getting more things that I believe in? You know what I mean? Like,

Speaker 4 can I not use norms to make things better? You know what I mean? Like, what if the next president has,

Speaker 4 you know, executive orders that Blitzkrieg can change all this, pack the court? Like, now that the seal is broken on norm breaking, do you see a world in which norm breaking for good happens?

Speaker 6 I mean, it's possible, right? I mean, the Warren Court was norm breaking for good, I would say, but, you know,

Speaker 6 those have been blips.

Speaker 6 I'm not a political reporter or a pundit, but I have yet to see anything

Speaker 6 from the mainstream Democratic Party that would have you believe that there's going to be some huge counter

Speaker 6 force.

Speaker 6 I think you can look at New York City and see the possibility, right, with our mayoral primary, but then you also see

Speaker 6 how much not Republican power is coming against that, but how much Democratic power is coming against that change.

Speaker 6 Which I'm like, I don't even know what's so radical. And man, it's universal health care, universal child care free buses.
Sounds great.

Speaker 6 But I think that's the thing that when I'm interviewing and talking to to people who are the base of the Democratic Party is

Speaker 6 just the belief that the party that's supposed to be representing their interests does not wield power for good in the way that the other party is wielding power for what they're doing.

Speaker 6 So, yeah, it's possible. I mean, I talked to before the election, I talked to a lot of Trump voters.

Speaker 6 surprising Trump voters.

Speaker 6 I don't interview like, you know, I'm not the person who's covering the Trump rally or like the people you know are Trump voters.

Speaker 6 I talked to people who were like, you would be surprised are Trump voters. And there was a significant number of them who said, I'm voting for him because he's going to blow everything up.

Speaker 6 I don't like him. I don't agree with any of his policies, but things are so bad.
And the Democratic Party is in such stasis. They're all taking money from the same people.

Speaker 6 And they're like, I just want someone who will blow it all up so we can like start something new. Now, me, I'm like.

Speaker 4 Okay, but you can blow it all up and don't get that thing you want.

Speaker 6 But also, there's so much suffering that people are going to have to bear while you're blowing it up hoping. But people, you know, people feel that our political system in general is broken.

Speaker 6 So I think there is always a potential that out of destruction, you can build a new and better world. But I think history tells us the odds are not in our favor.

Speaker 4 That's right. I think that's right.
Well, Nicole, Hannah-Jones, thank you so much for being on the show and talking about the Constitution with us. Really appreciate it.
And appreciate your time.

Speaker 6 No, thank you. I so seldom get to like have conversations out of my normal zone.
And this was really fun. So thank you.
And I look forward to listening to the podcast series.

Speaker 5 Thank you.

Speaker 4 So when it comes to the preamble, you know, there's a lot going on with it.

Speaker 4 And we mostly with Nicole talked about the we the people part of this, which makes a ton of sense because it is kind of the biggest rhetorical flourish and one of those things that Governor Morris actually like changed.

Speaker 4 It was going to be like we the states of the colonies, you know, and changed to we the people. But there's so much more in here.

Speaker 4 Establishing justice, ensuring domestic tranquility, provide for the common defense, all those kind of standard stuff, you know, promote the general welfare, what a lot of things countries do.

Speaker 4 And then it's like secure the blessings of liberty to ourselves and our posterity where you're like going big, you know what I mean?

Speaker 4 So we can talk about all those things, but these things show up much later in the Constitution.

Speaker 5 I mean, there's a true preamble and that it's supposed to like, it's kind of introducing you to these concepts, but they get explored more greatly like in a lot of the amendments for example right we could think of the preamble as kind of gestures to different themes that we're definitely going to pick up what what does it mean to have providing for the common defense or liberty is the maybe one of the most contested words in the constitution so yes it is vague probably very deliberately so um and we are probably going to look at these let's call them the preambles themes over and over again during the course of our discussions

Speaker 4 Well, thank you for talking with me about the Constitution, and now we're going to talk about some constitutional crisis that's happening in the present day after the break.

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Speaker 4 When we were developing the idea from the show, we knew we didn't want to lose the what Trump can teach us about con law aspect of talking about current events.

Speaker 4 So each month after our book club breakdown section with the the guest, Elizabeth is going to use constitutional law to explain something happening in the news.

Speaker 4 So, Elizabeth, it is July 16th at 1:45 p.m. as we're recording this.
What are we going to be talking about today?

Speaker 5 Well, in March of 1970, Gino Giacobelli gave an interview with the Associated Press about his job. And his life was not easy.
Gino's take-home pay after 14 years as a U.S.

Speaker 5 postal clerk in Hackensack, New Jersey, was $109 a week. He had to support his wife, his adult daughter, and his two grandchildren.

Speaker 5 Now, according to the interview, Gino's ambitions weren't too grand, but he complained that most nights dinner was pork and beans, or beans and bacon.

Speaker 5 And what he really wanted was what he called a halfway decent meal, maybe a hamburger or a steak.

Speaker 5 And Gino told the AP reporter that 27 of his fellow postal workers had applied for food stamps, and he was getting pretty close to it himself.

Speaker 5 Now, postal workers' salaries were low because Congress had only raised their wages in small amounts. In the 1960s, it wasn't uncommon for postal workers to have multiple jobs.

Speaker 5 By the time of Gino's interview, many postal workers were just above the poverty line.

Speaker 5 Yet, in early 1970, Congress proposed a bill that would give postal workers a 5.4% raise, less than the rate of inflation.

Speaker 5 This was the same Congress that had voted themselves a 41% raise the year before.

Speaker 5 In New York City, postal workers in the largest branch of the National Letter Carriers Union demanded a strike, but their union leaders refused.

Speaker 5 One reason was it was actually illegal for postal workers to strike.

Speaker 5 But the members took a vote, and they decided to strike anyway.

Speaker 4 A wildcat strike.

Speaker 5 And thus began, on March 18th, that's right, 1970, the largest wildcat strike in American history.

Speaker 5 A postal worker strike that began in New York and then spread to Chicago, Milwaukee, San Francisco, and other cities within days. Now, you have to remember this was 1970.

Speaker 5 There's no internet, no online life as we know it today.

Speaker 5 And so all of the ordinary things we all do online today, pay bills, get paid, receive benefits, transact business, completely happened through the mail,

Speaker 5 which in some cities had completely stopped. So the Nixon administration went to court and a judge ordered the workers to stop.
But remember, it was illegal for them to strike.

Speaker 5 The postal workers ignored what the court said and the stock market slid. One trader on Wall Street said, I don't see how we're going to operate without the mail.

Speaker 5 And so on March 23rd, 1970, President Nixon addressed the public on TV and announced a national emergency. He would be sending the military to New York City to deliver the mail.

Speaker 5 On TV, Nixon said, as president, I shall meet my constitutional responsibility to see that those services are maintained.

Speaker 4 That's right.

Speaker 5 President Nixon authorized the deployment of thousands of members of the Army, Air Force, Navy, Marine Corps, and the National Guard to implement what was called Operation Graphic Hand.

Speaker 5 And under Nixon's Executive Proclamation 3972, 26,000 troops were sent to New York City to sort mail and to deliver mail to businesses. But the problem was the soldiers were not very good at it.

Speaker 4 You don't say.

Speaker 5 In 1970, the Postal Service often relied on hand sorters who could handle more than a thousand letters an hour.

Speaker 5 But when the New York Times interviewed specialist Arnold Gray in Brooklyn, here's what he said. You've heard of the Boston Massacre and the Mely Massacre.

Speaker 5 Tomorrow you're going to see the New York Mail Massacre. I don't know a thing about the post office.
I'm a medic.

Speaker 5 The forces of Operation Graphic Hand did process 12.8 million pieces of mail very slowly. Luckily for Nixon, the strike didn't last very long.

Speaker 5 The Wildcat postal strike of 1970 ended on March 25th, just eight days after it began, and postal union leaders promised to negotiate with the federal government.

Speaker 5 Ultimately, Congress did approve a pay raise for postal workers, and Nixon eventually signed the Postal Reorganization Act, which recognized their rights to collective bargaining.

Speaker 5 And it created the U.S. Postal Service that we know today.
And I'd like to think that Gino Giacopelli was able to have a stake now and then as a result.

Speaker 4 Yeah, let's hope so.

Speaker 5 And as president, Nixon used his powers as commander-in-chief over the military. But in the wildcat postal strike of 1970, we weren't at war or in any foreign commitment.

Speaker 5 But there's a through line from the postal strike to President Trump's use of the military for his mass deportation program.

Speaker 4 So what is the connection between those two things?

Speaker 5 Well, let's begin with some core principles. In our legal system, we have this really deeply held belief that the military shouldn't be used in civilian law enforcement.

Speaker 5 In fact, it's one of the long list of complaints in the Declaration of Independence, right?

Speaker 5 One of the things we've complained about was that King George kept among us in times of peace standing armies without the consent of our legislatures.

Speaker 5 And it's that deep suspicion about standing armies in domestic affairs. That's one of the reasons our Constitution puts a civilian, the president, in control of the military.

Speaker 5 But on the other hand, the Constitution also imposes responsibilities on the federal government when it comes to the security of the states.

Speaker 5 So, for instance, the guarantee clause of the Constitution requires the federal government to provide states with protection from foreign invasion and from what the clause calls domestic violence.

Speaker 5 And Congress has the authority to call out the militia under the Constitution to enforce federal law.

Speaker 5 And so the major way we protect against having a standing army against civilians, but also having some power for emergencies, is the Posse Comitatus Act. And it's just one sentence.

Speaker 5 So Roman, why don't you read it?

Speaker 4 Okay. I mean, it's a long sentence, but it's one sentence.

Speaker 4 So, whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force, well, that's a new addition, as the posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both.

Speaker 4 So, where does this come from? And when did we add Space Force to this list?

Speaker 5 Pretty recently, right?

Speaker 4 That's right.

Speaker 5 So, the term posse comitatus actually refers to the power in English common law.

Speaker 5 So, we're going back a long time, the power of the sheriff to command local men in the community to help him enforce the law.

Speaker 5 So, if you've ever seen like an old Western movie where the sheriff says, hey, everybody, we're going to get a posse together to catch the bad guy, that's the same idea.

Speaker 4 Right.

Speaker 5 But with the posse comitatus act, I'm actually thinking of our earlier conversation with Nicole Hannah-Jones because the act itself has a history that's intertwined with the Civil War and racism, actually.

Speaker 5 During Reconstruction, federal troops occupied the former Confederacy, and that included black soldiers who were part of those federal troops.

Speaker 5 And they were all there to ensure that the federal laws would be respected, especially when it came to protecting voting rights. And Southerners saw these troops as a humiliation.

Speaker 5 So I'm condensing a lot of Civil War history here, but in order to settle the hotly contested 1876 presidential election, which Rutherford Hayes barely won, Hayes ended up agreeing to remove federal troops from the South.

Speaker 4 Yeah, which pretty much effectively ended Reconstruction at that point.

Speaker 5 Exactly. It ends Reconstruction and the promise of securing rights for black Americans in the South after the Civil War.
But of course, if you read the act, you'd never know that.

Speaker 5 So you have this act with less than savory origins, but nevertheless a federal law that does uphold an important principle in our legal system.

Speaker 5 And apart from some minor changes, like the inclusion of the Space Force, it has remained mostly unchanged since it was originally passed.

Speaker 4 How exactly does it prevent the problem? Like, what is it laying out here?

Speaker 5 So the act expresses this general idea, this presumption, that we should not have a standing army in the United States.

Speaker 5 But the problem is that the law permits exceptions. You can't have a posse comitatus unless expressly authorized by the Constitution or Act of Congress.

Speaker 5 Now, the authorized by the Constitution part doesn't mean much because there's actually nothing in the Constitution that specifically allows us to do this.

Speaker 5 On the other hand, Congress has passed laws that create exceptions to the Posse Comitatus Act.

Speaker 5 In other words, Congress may sometimes say, here are situations where the president can use the military in a civilian context.

Speaker 4 And this threat of imprisonment, who is going to be imprisoned in this

Speaker 4 act?

Speaker 5 That's a good question because we don't know. There haven't been any prosecutions like that.
So that remains a kind of mystery.

Speaker 4 And what are some of these exceptions that would allow for a posse to be formed?

Speaker 5 Well, the primary exception to the Posse Comitatus Act is called the Insurrection Act. It's a name we give to a series of laws that were first passed in 1792.

Speaker 5 And the Insurrection Act allows the president to use federal troops, troops, and that includes federalized National Guard troops, in three situations.

Speaker 5 The first is when a state asks for federal help to suppress what the law calls an insurrection.

Speaker 5 The second is when the president determines that you need the military to enforce the laws of the United States or to suppress rebellion.

Speaker 5 And the third is when the president uses the military in a state to address what the law calls any insurrection, domestic violence, unlawful combination or conspiracy that hinders the execution of federal law.

Speaker 5 So the important thing here for us is to note that the military here can include the National Guard.

Speaker 5 Now the National Guard is normally under the authority of each state, but the president is allowed to federalize these troops in the right circumstances.

Speaker 5 So when the president does that, the National Guard essentially becomes no different than the rest of the military.

Speaker 4 So considering these three exceptions, like how many times has this been used? And maybe which one is the most common one? I imagine the state asking for it is the most common one.

Speaker 5 Yeah, that's right. The exceptions have been used quite a bit.
Most often, presidents have used the Insurrection Act to send federal troops in times of civil unrest. And it's happened about 30 times.

Speaker 5 And so, for example, the first President Bush in 1992 invoked the Insurrection Act to send out federal troops during the Rodney King riots in L.A.

Speaker 5 So in that kind of situation, you can see that that happens with the request or at least the consent of the state's governor.

Speaker 5 The one notable time in American history when a president did not do that was in 1965 when LBJ sent troops to Alabama.

Speaker 5 But that was to protect civil rights activists who are marching from Selma to Montgomery. And the non-consenting governor was George Wallace, who was a pretty open segregationist and racist.

Speaker 5 So you can understand why he did that.

Speaker 4 And so the easiest way to make this the most smooth is for the governor to be on board board with this because that automatically gets you into the territory of it being acceptable.

Speaker 5 Right. So you need the two things.
I mean, like, politically acceptable in terms of the governor going along with it, but then also those certain conditions have to be met under the Insurrection Act.

Speaker 5 So to sum up, under federal law, we have a 19th century statute

Speaker 5 after Reconstruction that stops the president from calling out the military against civilians unless Congress has recognized an exception.

Speaker 5 And the major exception here to the the Posse Comitatus Act is the Insurrection Act. Okay.
So now let's turn to what's happening now, right?

Speaker 5 So you and I and everyone has seen the ratcheting up of immigration enforcement by ICE officers.

Speaker 5 So there have been these viral videos about masked ICE officers turning, looking for undocumented people at restaurants, home depots, farms, even schools, and sometimes even at court-ordered appearances, just sort of snatching people and taking them away.

Speaker 4 It's been terrible. Yeah, it's disgusting.

Speaker 5 So in some cities, people have been protesting these raids and in early June large protests began in downtown Los Angeles after several ICE raids had taken place.

Speaker 5 Now there were definitely some clashes with the Los Angeles Police Department but they were mostly peaceful.

Speaker 5 But on June 7th, President Trump issued an official memorandum that authorized the federalization of the National Guard and the deployment of active duty armed forces to what the memos said were locations where protests are occurring.

Speaker 5 The idea here is that armed forces would provide the muscle in making sure that ICE officers could make their arrests.

Speaker 5 And so Secretary of Defense Pete Hexeth called several thousand members of the California National Guard into federal service for 60 days.

Speaker 5 On June 8th, 300 California National Guard troops arrived in downtown LA and they were joined by many others later. And that included 700 active duty Marines who also went to L.A.

Speaker 5 as part of this proclamation.

Speaker 4 So is Trump Trump relying on the Insurrection Act to make this legal?

Speaker 5 Well, everybody thought he might, but the surprising answer is no. He could have easily done what presidents had done dozens of times.
And that's the strange thing.

Speaker 5 Trump is not relying on this pretty well-recognized exception. Even if the Insurrection Act is controversial in some uses, it's definitely been used before.

Speaker 5 So instead, Trump is relying on a different statute. It's called 10 U.S.C.
12406. It's an act that allows a president.
Yeah.

Speaker 5 Very catchy, it's an act that allows a president to call up the National Guard in a case of what that law says is a rebellion or danger of a rebellion against the United States, or if the president is unable with the regular forces to execute federal law.

Speaker 5 But the weird thing about this law is that it's typically been used as almost kind of like a technical call-up for the National Guard.

Speaker 5 So presidents have typically used the Insurrection Act as kind of the legal reason why they're calling up the National Guard.

Speaker 5 And then they use this law in conjunction with the Insurrection Act as the technical, and now we're calling up the National Guard, kind of a way to shift control of the National Guard from the state's governor to the president.

Speaker 4 So is Trump the first person to do this type of maneuver?

Speaker 5 Well, apparently it has been used one time before. during the 1970 wildcat postal strike.

Speaker 4 Oh, here we go. There we go.
Yeah.

Speaker 5 In fact, that is the example we see cited by the state of California in their lawsuit against the Trump administration, a lawsuit that was filed in federal court just a day after the first federalized National Guard troops arrived in Los Angeles.

Speaker 5 The state argues that this statute, again, 10 U.S.C. 12406, has only been used by a president once.
and for what the state calls highly unusual circumstances not presented here.

Speaker 5 And so from what we've just talked about, you can see there are enormous differences.

Speaker 5 You know, we were not thinking in the 1970s that the soldiers called up in that emergency proclamation were going to be used for anything but like the most beneficial, you know, innocuous purposes, which was deliver the mail, right?

Speaker 4 Right, right, right. Although it does seem like calling the wildcat strike of the postal workers a rebellion against the U.S.
seems a little far-reaching, too.

Speaker 5 Oh, well, so presumably that would have been not that basis, but remember, it's also if you're unable to execute federal law.

Speaker 5 And since like delivering the mail is an essential part of, it's even in the Constitution, right, that we would establish post offices, that mail not being delivered at all was not being able to execute federal law.

Speaker 4 So is the state of California suing Trump because he's not invoking the Insurrection Act, or what is the basis of the lawsuit?

Speaker 5 Okay, so that's a good question. So California here is saying, look, what is Trump relying on? He's relying on this not typically used statute.

Speaker 5 And even if you look at that statute, the required bases are not here when it comes to ICE engaging in their immigration raids and people mostly peacefully protesting against them.

Speaker 5 So the state is not challenging the use of the law saying that Trump can never use this ever. They're saying it's just that the right conditions are not present here.

Speaker 5 But let's think about what the complaint is actually doing or what the federal lawsuit's about.

Speaker 5 California says, look, 12406, that's the federal statute, only allows the president to call up the National Guard when there's an invasion by a foreign country, when there's a rebellion, or when the president can't enforce federal law.

Speaker 5 Now, obviously, there's been no invasion by a foreign country, so we can toss that out immediately. And California argued, look, this isn't even a rebellion.

Speaker 5 Even if there were some people who were arrested during the protests, that doesn't transform a protest into a rebellion against the United States.

Speaker 5 And second, it's not even true that the Trump administration can't enforce the law because ICE officers did in fact still arrest and detain people nevertheless, right?

Speaker 4 Yeah.

Speaker 5 So the state of California initially asked the federal court for a TRO, a temporary restraining order to have the Trump administration immediately stop what it was doing.

Speaker 5 In other words, stop calling up the National Guard.

Speaker 5 And on June 12th, the federal district judge agreed with California that this was in fact an illegal order and granted the temporary restraining order.

Speaker 5 The The judge, that's Judge Charles Breyer, was especially worried that the Trump administration seemed to be targeting the mere act of protesting as some form of rebellion.

Speaker 5 He said, look, I'm really troubled by the implication inherent in the administration's argument that protest, which is a core civil liberty protected by the First Amendment, can justify a finding of rebellion.

Speaker 5 Remember, this is a trial court, right? It's just the lowest level in the system.

Speaker 5 The Trump administration immediately appealed that temporary restraining order and asked the appeals court for an emergency stay or a stop of the stop, right?

Speaker 4 To actually let them keep going.

Speaker 4 This is my least favorite part of our discussions. The stopping of the stopping of the stopping just spins my head every single time.

Speaker 5 I know, it's very lawyerly, but the idea is like they wanted to keep on going, right?

Speaker 4 Exactly.

Speaker 5 So at this stage, you know, it's not about revisiting the entire case.

Speaker 5 The appeals court just looked to see whether the administration was likely to succeed on their appeal only about the temporary injunction.

Speaker 5 In other words, they're not like saying, let's look at everything that California is arguing here. It's just the narrow question of should there be a temporary restraining order or not.

Speaker 5 And the appeals court sided with the Trump administration, primarily because they said, in this kind of situation, we have to defer to the president.

Speaker 5 They looked at cases going back to the 19th century, and the appeals court said, look, when it comes to this kind of statute, the role of the court is not to second guess every single thing the president does instead that we have to be extremely deferential to the president in other words give trump the benefit of the doubt so if trump determined that ice was unable to execute federal immigration law under the statute, then that was enough, said the appeals court.

Speaker 5 We're not in a position to say that doesn't seem right. Or like, sure, you arrested people so that you didn't qualify.

Speaker 4 Yeah. And I can understand the soundness of that logic in a general sense, because if it's an ongoing emergency,

Speaker 4 you have to defer to the person who's thinking of it as an emergency and has to actually change the state of play on the ground. That kind of makes sense.

Speaker 5 Yeah, I mean, in the abstract, for sure, it makes sense.

Speaker 4 In the abstract, that's right. We want totally.

Speaker 5 That's right. And so the court is trying to say, look,

Speaker 5 in our job, in looking at prior cases and similar types of situations, we have been deferential, so we have to do the same thing.

Speaker 5 So they put a stop on the stop, and the Trump administration is allowed to do what it was doing before.

Speaker 4 So now that the stop has stopped and it can go forward under 10 USC 12406,

Speaker 4 what happened next?

Speaker 5 Well, California's lawsuit against the Trump administration actually does continue in the federal trial court, in the federal district court. The appeals court just dealt with that emergency.

Speaker 5 So the trial court judge could decide, for instance, to issue a non-emergency, longer-lasting pause on the use of federal troops.

Speaker 5 Judge Breyer said he might consider whether the use of troops violated the Posse Comitatus Act. That was one of the claims that California has made.

Speaker 5 And the appeals court did not address that issue at all in its emergency decision.

Speaker 5 So there is a possibility that the federal trial court judge could say, well, there's another reason I'm going to order a pause on what the Trump administration is doing in Los Angeles.

Speaker 5 And on July 15th, the Pentagon announced that it would reduce the number of National Guard troops by half those who were being posted in Los Angeles.

Speaker 5 So that reduces the military force down there, but there's still plenty, hundreds of troops that are still there in Los Angeles, presumably providing the muscle for ICE arrests and just basically standing around with firearms, with weapons, and looking kind of scary and terrifying people.

Speaker 4 We'll be right back.

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Speaker 4 So this particular case is happening in California, but, you know,

Speaker 4 ice raids and stuff are happening everywhere. Is this something that, does this apply all across the United States?

Speaker 5 Well, I think no matter what happens in this specific lawsuit, what's happening in Los Angeles actually has pretty far-reaching implications for the whole country.

Speaker 5 Because let's return to that memo, that official proclamation that Trump made on June 7th. Now, the memo, if you take a closer look at it, there is no mention of Los Angeles.

Speaker 5 It simply talks about rebellions against the authority of the United States. And Trump's call-up of the National Guard is for what his memo says is any location where protests are occurring or

Speaker 5 likely to occur based on current threat assessments.

Speaker 4 Wow.

Speaker 5 So under the logic of the memorandum, troops could be sent anywhere in the United States, not even where there are current protests, but where the Trump administration determines that protests are likely to be happening based on their own assessment.

Speaker 5 The other part of it is There is no mention of the fact that they will send troops if there is demonstrated demonstrated violence or a demonstrated threat of violence.

Speaker 5 They simply seem to be targeting protesting.

Speaker 5 So the memo really seems to be a kind of implied threat against any city where aggressive ICE enforcement is openly protested or might be protested by the community.

Speaker 5 And the memo doesn't require that there have to be reports of violence. And so that's particularly disturbing.
It really seems to be targeting plain old protesting.

Speaker 4 Wow. Wow.

Speaker 5 And then, second, many people have seen these videos of these masked ICE officers, sometimes in uniform, sometimes in plain clothes, seemingly rounding up everybody they see in a parking lot or a workplace based on their appearance or an accent they might have.

Speaker 5 Now they have the military behind them if the Trump administration decides that that's what they want to do.

Speaker 5 These are authoritarian tactics, sending the signal that no dissent will be tolerated, that any kind of dissent or protest is essentially a rebellion in the eyes eyes of the administration.

Speaker 4 And so if Judge Breyer were to say that this is somehow in violation of the Posse Comitatus Act,

Speaker 4 would that apply all around the country as well?

Speaker 5 No, not necessarily, right? So it would just apply to what's happening there. But, you know, if there were another decision by the Trump administration to send

Speaker 5 another set of troops, another federalized National Guard, another state, presumably that would be another kind of fact-intensive inquiry of what's happening there, what kind of protest occurred there, and what determination has the Trump administration made.

Speaker 5 And kind of based on what the Ninth Circuit has done, the Appeals Court, if we're giving a pretty deferential look at what the president does, seems like Trump has a pretty free hand to send troops if he wants to, which is kind of disturbing.

Speaker 5 And I think that leads to the other problem. You know, if you think about the Posse Comitatus Act and the exceptions, it's kind of a balancing, right?

Speaker 5 Of, well, we don't want to have a standing army against civilians because soldiers have one kind of training. They're trained to defeat an enemy, right?

Speaker 5 They're not trained to respect civil liberties or to protect people first and foremost. They're primarily there to defeat an enemy.

Speaker 5 That's the scary part of having military, and that's why we don't want them in domestic law enforcement. You balance that with having protection when there's an emergency within the United States.

Speaker 5 So this is not an emergency. This is not even like the Postal Service shutting down and potentially wrecking the economy in 1970.

Speaker 5 This is a completely manufactured political emergency by the Trump administration.

Speaker 5 I think the big problem, the biggest problem that we see in the memo is that if this counts as an emergency, what we see in Los Angeles, then anything can be an emergency.

Speaker 5 Then Trump can declare any part of the United States a place where he has to send troops. And it's about to get much worse.

Speaker 4 Much worse. How?

Speaker 4 This seems pretty awful already. So much worse how?

Speaker 5 Well, it's about to get worse because, you know, a lot of attention has been paid to Trump's, I hate their name for it, the so-called Big Beautiful Bill that became law on July 4th.

Speaker 5 And most of the attention has been paid to the massive tax breaks for the wealthy and the big cuts to the social safety net, like cuts to Medicaid and food stamps.

Speaker 5 But it also includes, the bill also includes more than $75 billion in new funds to ICE, just ICE alone over the next four years. That includes $45 billion for immigration detention.

Speaker 5 That's a quadrupling of their current budget.

Speaker 5 And more than $30 billion to expand the number of ICE officers and to fund their enforcement activities. So there's a few problems with this.

Speaker 5 First, there's very little oversight in the bill over the use of how these funds are going to be distributed, whether there's going to be any oversight for waste or fraud.

Speaker 5 But as a result, ICE becomes essentially the largest law enforcement agency in the country.

Speaker 5 So you have not only the motivation here to send ICE officers everywhere with the support of the military when necessary in the eyes of the Trump administration.

Speaker 5 It's really that what we've seen in LA could become much more commonplace with ICE officers out in communities.

Speaker 5 And you have this massive deportation machine that once this funding is here and you have the building of even more detention facilities and the hiring of thousands of more ICE officers, that's a structure that can't easily be dismantled even after Trump is no longer president.

Speaker 5 Once you have a giant agency like this that's dedicated to immigration enforcement in this very aggressive way, it's hard to think of how that ever goes away.

Speaker 4 I mean, could the next person defund it all? I'd vote for that person.

Speaker 5 Well, you'd have to get Congress to decide to shrink the agency. But, you know, historical experience kind of shows that we tend not to do that when it comes to law enforcement agencies.

Speaker 5 Even if it does go away, it will take such a long time and so much effort.

Speaker 5 But in the interim, you have a lot of suffering and a lot of, you know, frankly, terrifying actions on the part of the administration.

Speaker 4 Yeah, yeah.

Speaker 4 And then just adding so much fuel to the fire, all this money that sends so many people out there for potential conflict and just even the perception that there might be future conflict, if that's the rationale that they're using to send out National Guard, is really terrifying.

Speaker 4 It's just adding so much fuel to a fire.

Speaker 5 And that's not the only problem.

Speaker 5 When the appeals court decided in favor of the Trump administration, as we've already discussed, they said, look, no matter what may be really happening, we have to be deferential to the president.

Speaker 5 This law allows the president to address emergencies.

Speaker 5 But what's noteworthy here is that the appeals court said, we presume that a president who relies on this statute is acting in what the court called good faith in the face of an emergency.

Speaker 5 But here's the problem. Immigration is an important policy problem, no question.
But it's not an emergency.

Speaker 5 Nor do we have a good faith president.

Speaker 4 Absolutely true.

Speaker 4 I mean, the one

Speaker 4 counteravailing force that could emerge through all this is like

Speaker 4 this sort of almost centuries-long aversion to standing armies. I mean, this started in the English Commonwealth.
It happened. I mean, like, there wasn't a British standing army in the U.S.

Speaker 4 for a really long time until the French and Indian War.

Speaker 4 And then we could handle that for almost, I don't know, maybe 10 years before we freaked the fuck out and like started a revolution because of the standing army almost as much as anything else.

Speaker 4 I mean, is there a sense that

Speaker 4 once you ratchet up, you know, this level of standing arminess, you know, in the country, that that just creates such a groundswell of just like rejection of it?

Speaker 4 You know, just like that is, that is our nature as much as almost anything else is rejecting a standing army.

Speaker 5 I don't know. I think that's right.
I mean, I think like you can have a groundswell for change

Speaker 5 for something that seems so scary. But I guess what's really different from between now and then is that we all need a shared reality if we're going to sort of

Speaker 5 engage and get together and say, This is not what we want. I'm not sure that we're living in that world, at least in that moment right now.

Speaker 4 Yeah, yeah.

Speaker 4 Well, this is terrifying. I'm glad we're talking about it nonetheless.

Speaker 4 But thank you so much for talking with me. This has been really enjoyable, you know, like in a way.

Speaker 5 Thanks, Raman.

Speaker 4 Join us next month where we'll tackle Article 1, which established the legislative branch of the government. So much to cover.

Speaker 5 The 99% Invisible Breakdown of the Constitution is produced by Isabel Angel, edited by Committee. Music by Swan Rial and from Doomtree Records.
Mixed by Martine Gonzalez.

Speaker 4 99% Invisible as Executive Producer is Kathy Tu. Our senior editor is Delaney Hall.
Kurt Colstead is the digital director.

Speaker 4 The rest of the team includes Chris Barupe, Jason DeLeon, Emmett Fitzgerald, Christopher Johnson, Vivian Lay, Losh Madon, Jacob Maldonado Medina, Kelly Prime, Joe Rosenberg, and me, Roman Mars.

Speaker 4 The 99% Invisible logo was created by Stefan Lawrence. The art for this series was created by Aaron Nestor.

Speaker 4 We are part of the SiriusXM podcast family, now headquartered six blocks north in the Pandora Building in beautiful uptown Oakland, California.

Speaker 4 You can find the show on all the usual social media sites, as well as our own Discord server, where we have fun discussions about constitutional law, about architecture, about flags, about music, about movies, all kinds of good stuff.

Speaker 4 It's where I'm hanging out most these days. You can find the link to that Discord server as well as every past episode of 99PI at 99pi.org.

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