Rund Abdel Fattah (4:28)

Thanks for having us.

Ramtin Arablouei (4:29)

Thanks for having us.

Aisha Rascoe (4:31)

So I understand that you've been making a series with one episode on every single amendment, and that's a big commitment. Why did you want to do that?

Rund Abdel Fattah (4:43)

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

Aisha Rascoe (5:23)

And that's what makes them so relevant right now, right?

Rund Abdel Fattah (5:28)

Yeah, absolutely. I mean, I think it's easy to think about these things that were some of them written down more than 200 years ago and say, well, that doesn't apply to me, or that sounds really boring and dry and abstract. And I think what this series is doing is bringing the amendments to life and making you realize just how relevant they are to us right now in this moment.

Aisha Rascoe (5:54)

Okay, so before we go any further, I want to say, you know, I've covered government for a long time, covered the White House, did A whole bunch of stuff. I know the amendments exist, but if you said, tell me about. What's number 22? I don't know. Tell me what number eight is, baby. Don't ask. I don't know.

Rund Abdel Fattah (6:14)

Like.

Aisha Rascoe (6:16)

So let's stop right here and say, okay, where do the amendments come from? Why do we have them? Talk to me about how these amendments came about.

Rund Abdel Fattah (6:26)

Okay, so let's go back to 1787. So at this point, the British have been defeated, the US has established its independence, and now the original 13 states have this massive assignment in front of them. They have to write a document that establishes a stronger central government that they can all agree on.

Aisha Rascoe (6:44)

And this all happened in Hamilton, right? This was.

Rund Abdel Fattah (6:47)

Yes, Hamilton is going to be a part of the story. Yeah, yeah. Oh, he comes up.

Ramtin Arablouei (6:50)

Okay, don't get me started. Don't get me started on this.

Rund Abdel Fattah (6:55)

Yeah, please don't get him started, actually. All right, so. So the representatives of those states get together. They got their wigs on, and. And they're arguing a lot, right? And the kind of key debate that is raging between them is on one side, your guy, Alexander Hamilton and the Federalists, who he represents, are saying the federal government needs power to unify 13 diverse states. So they're in favor of a strong federal government. Right. On the other side, you have Antifederalists, which you can imagine what that means. They don't want a strong federal government because they just fought the Revolutionary War. Right. Theoretically, to get out of the grips of a strong central government. And finally, the Antifederalists say, we will ratify the Constitution if they put this condition. We can also have a Bill of Rights. And that Bill of Rights explicitly would state the powers of people to protect them from the government. And these rights become the first 10amendments. So I think it's important to point out here that those first 10amendments were a political compromise. So there was an ambiguity built into the language. And this is intentional. Right. They want it to be able to be open to intention, interpretation and open to change. And today we're still arguing about those interpretations, but it is actually kind of by design that that space, that sort of liminal space of understanding is built into it.

Aisha Rascoe (8:24)

It sounds like we are in the extension of a debate that's been going on for 200 years. Once you started looking into the histories of these amendments, how does, like, that shiftiness of interpretation or the ambiguity that you talked about show up?

Ramtin Arablouei (8:46)

One of the big ones that we talk about a lot today is the Second Amendment, which listeners may know has to do with the right to bear arms today, given the major place it has in our discourse, anyone would be forgiven for thinking that this always been the case. But the reality is the second Amendment wasn't a big issue in our national discourse for more than 100 years. Basically, after it passed, there were actually very rarely court cases about it. It was almost never used to challenge laws. And the story of how it went from this kind of sleepy amendment no one really talked about to the political lightning rod that it is today is really, really wild. I want to transport us for a second to Great Depression era. So on a Dusty Road in 1934 is where this kind of pivot, this change to the second amendment becoming a big issue begins. And actually, here's where we can play a clip from the episode that really paints a picture of what that moment was. It's dawn in Okemah, Oklahoma. Two cars, a Plymouth and a Ford, wind down the sleepy, dusty street. In each car sit men with stockings and handkerchiefs over their faces, pistols and machine guns in their hands. They stop in front of two banks across the street from each other. The Depression is the golden era of bank robbery in the Midwest. And this gang is about to attempt one of the few successful double heists in American history. This group of guys with weapons basically go to one bank across the street, rob that bank, then go to another one before the police can get there.

Aisha Rascoe (10:36)

Oh, my goodness.

Ramtin Arablouei (10:37)

There's a movie, Road to Perdition, maybe some people remember with Tom Hanks. It was a very. It's a good movie. It's right out of that. Right, it's right out of a film. And they basically almost got away with it. But eventually one of the robbers, a guy named Jack Miller, he's caught and he's brought in for questioning. He actually snitches on his fellow bank robbers, the other folks that took part in this, and cuts some kind of deal basically. And he gets off like he's let go, he's released.

Aisha Rascoe (11:07)

Okay, okay.

Ramtin Arablouei (11:09)

And so, okay, so, okay, he's off right there. But here's where it gets interesting. Joseph Bloker, he's a constitutional law professor at Duke. He actually told us this story and he says a couple years after that.

Joseph Bloker (11:21)

Bank heist, Jack Miller, wouldn't you know it, April of 1938, gets pulled over and it's found to be in possession of an unregistered sawed off shotgun.

Ramtin Arablouei (11:30)

He's arrested again.

Aisha Rascoe (11:34)

What was he doing with that?

Ramtin Arablouei (11:35)

Okay, so one note. This is the time again. Great Depression gangs organized large Gangs, including the mafia are really big in the US at this point. And one of the weapons of choice was a sawed off shotgun. Why? Because it's easy to conceal, it's small and it packs a really big punch. Right. So he had what was generally known as a gang member's weapon. It was used in organized crime.

Aisha Rascoe (12:00)

Was it illegal or just was unregistered?

Ramtin Arablouei (12:03)

It was unregistered, which made it illegal. The National Firearms act from that time required sawed off shotguns to be registered since they were so popular for criminals. And Jack Miller's, well, that one was definitely not registered. So he gets caught. Right. And up to this point, the Second amendment was generally interpreted, if it was at all, to essentially mean that local militias had the right to bear arms to stand up to the federal army. 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 individual the right to own a gun, which should sound familiar to all of us today. Here's Joseph Bloker.

Joseph Bloker (12:48)

He says the second amendment protects my right to have this sawed off shotgun. And I think to some people's surprise, a district judge agrees with 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, your right to have a gun. And so the judge orders Jack Miller released.

Aisha Rascoe (13:11)

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

Ramtin Arablouei (13:22)

Yes, exactly. So this person who had robbed banks, we can assume he was still involved in some level in gang activity or the things he was involved with before.

Aisha Rascoe (13:31)

Makes out to get him because he snitched on him. So he had to care to sawed off, you know, Shawnee, just in case.

Ramtin Arablouei (13:38)

Exactly. He was packing for a reason. Right?

Aisha Rascoe (13:41)

Yeah.

Ramtin Arablouei (13:41)

Well, okay, so he gets off, the court agrees with him. So he gets off again. But then the case goes all the way up to the Supreme Court. The judges rule unanimously that Jack Miller did not in fact have a right to a sawed off shotgun. They went with a continuing kind of interpretation that the second Amendment has to do with a militia.

Aisha Rascoe (14:02)

But it didn't stay that way, right? Obviously, no.

Ramtin Arablouei (14:05)

Yeah, and we're gonna get to that. But what I think is really fascinating about this is that it shows that the interpretation of the second Amendment, or frankly any amendment is a living thing. It happens within a context of the moment. So a political socioeconomic context. And at that time, with gangs being viewed, at least by the federal government, as a big problem in the United States and the US Being in the midst of this economic freefall, the idea was that they wanted to kind of put a stop to what they viewed as rampant crime. So perhaps that influenced the ruling, and that is something we really took in from this case.

Aisha Rascoe (14:43)

After the break, the Second Amendment Takes a Big Turn this message comes from.

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Aisha Rascoe (15:46)

We're back with the host of Throughline on the surprising past, present and future of America's amendments. When we left off earlier, you were telling me about the double crossing bank heist story behind the Second Amendment meant let's keep going like where is that story now? Because it didn't end there, right?

Ramtin Arablouei (16:06)

It did not. But interestingly, it took a very long time for it to change again. So like you said, we left off with Jack Miller. He had this sawed off shotgun and he made the case that he had the right to have this gun. The Supreme Court at the time disagreed and it took all the way until 2008 for it to change again. And the context of that is that many judges on the Court started at that time to interpret these amendments through the lens of something called originalism. And what that means is the originalists believe the Constitution should be interpreted based on the meaning of its words at the time that it was ratified. So basically whatever they meant then is how we should interpret it now. So then in 2008, a case comes before the Supreme Court called D.C. versus Heller. The Supreme Court, in a very close decision that was authored by justice. The late Justice Antonin Scalia looked back at 18th century dictionaries. They even went back to English common law from the 1700s to argue that in the original text, the founders actually intended the second amendment to mean that this right isn't just for militias, but for individuals too. And that ruling ushered in the modern form of the Second Amendment that we know today, which really is just 16 years old, which really affects, affirms the right for individuals to own weapons for self defense for other reasons, and rejects this idea that it has to be for a militia.

Aisha Rascoe (17:37)

That's interesting because I think a lot of people would think that, oh, this has been decided, you know, long ago and not something so recent. And it, it sounds like with this sort of interpretation, this kind of originalism, it treats the Founders almost as prophets or oracles. And you have to like, okay, when they said this word, what did they mean? Like it's treating it as something that is written in stone.

Ramtin Arablouei (18:05)

That's right.

Aisha Rascoe (18:06)

I would imagine, though, that would be very hard considering a lot has changed since the 1700s and 1800s. It's a very different world. They didn't know about Facebook or cell.

Ramtin Arablouei (18:19)

Phones or frankly the types of weapons that are available. Right. You know, that was written during, where people were using muskets, very basic weapons that of course are dangerous. But today we have weapons that are far more lethal and far more effective in killing people. So I will say this. I think the originalists would make the argument that veering too far from the amendments gets away from their original intent. And that basically if the Constitution doesn't fit our present moment, that what we should do is just pass new amendments rather than kind of reinterpret existing amendments to fit the moment. But I do think it's fair at the same time to point out, like you said, things are changing. Our society is way more complicated than it used to be and that applying the rule, let's say an amendment from the 1700s in the way that they intended today may miss a lot of the complicating factors. It's something that the court still hasn't worked out in a lot of ways and our society still hasn't worked out. And I think it's going to be an ongoing struggle for years to come.

Aisha Rascoe (19:22)

What I find really interesting here is that some amendments seem really clear and then there are others like the second Amendment and of course the first Amendment that are just the source of endless debates. So moving on, let's talk about the first Amendment. How's the Right. That it guarantees freedom of speech been interpreted and reinterpreted over the years.

Ramtin Arablouei (19:47)

Well, first, I mean, there was a disagreement about what it meant from the very beginning. So the amendment says, among other things, Congress shall make no law abridging the freedom of speech. And at first glance, that seems clear, right? But even seven years later, after that was passed, Congress actually passed a law that prohibited speech that criticized the federal government. And so, as you can see, immediately they started eating away at the idea because it's really tricky, right? On the one hand, you want to protect people from harm. On the other hand, you want to maintain free expression and free exchange of ideas, et cetera, all the things we hold to be sort of important in the US So the courts have to decide, where does potentially dangerous speech become speech that causes real harm, and when is it worth stepping in? And so over the years, their decisions have shifted and shifted again. Let me tell you two pivotal moments, two stories that have shaped free speech rights today. The first is in 1919, while the red Scare was in full swing, an activist named Anita Whitney gave a speech for the Communist Labor Party and was promptly arrested. Her case actually later landed in the Supreme Court, where the justices upheld her conviction and applied an argument about free speech that would remain the precedent or the standard for decades. And that is basically that speech can be prohibited when it poses a clear and present danger. This test actually gives the government, like, a lot of leeway to limit people's free speech, Right, because it's vague. Like, in this case, Whitney wasn't calling for immediate violence, but she was still perceived as a threat by the state because of her relationship with the Communist Party, which obviously did threaten to violently overthrow the US Government. And that was enough to regulate. But then in another story in 1969, the limits of free speech became a lot more specific. Marianne Franks actually told us this story. She's a law professor at the University of Miami. And it starts when a Ku Klux Klan leader named Clarence Brandenburg held a rally in Ohio.

Marianne Franks (22:01)

And at this rally, he's in full Klan regalia, speaking to all of these other hooded individuals, and says, if the white race continues to be oppressed by the President and Congress and the Supreme Court, we may have to take. And he calls it revengeance. And during that rally, they then burn across and they're carrying weapons. They're using anti black, anti Semitic slurs. It's pretty clear that it's meant to be threatening and intimidating. And the broadcast of the speech is not just played on local news, but it makes national news, so everybody really has the chance to hear it.

Ramtin Arablouei (22:38)

So Brandenburg is actually convicted in Ohio for that speech, and that case is then challenged, and it travels all the way up to the Supreme Court. The Supreme Court, in a surprise ruling, essentially says that they're gonna 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 Mary Ann Franks.

Marianne Franks (23:02)

Again, it says you can't prohibit people's speech unless the speaker intended really to incite imminent, lawless action. That is pretty much has to happen immediately, and it has to be really likely that that lawlessness is going to happen.

Ramtin Arablouei (23:17)

So, for example, if you're saying something to try to start trouble, which many people would argue that's what Brandenburg was doing at his KKK rally, but no one's really listening, then the government can't restrict it. The speech has to be both intended and likely to trigger immediately unlawful action.

Aisha Rascoe (23:34)

Well, that sounds like a very narrow interpretation of what can be prohibited. I mean, the KKK was actually extremely violent. I mean, they were a terrorist organization.

Ramtin Arablouei (23:46)

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

Aisha Rascoe (24:17)

And you see this issue even playing out today. I mean, when you think about Charlottesville, Virginia, in 2017, there was a rally that took place. There were white supremacists there carrying flags with Nazi emblems, weapons, shouting racist chants, and one counter protester was hit by a car and killed. So even this speech, that is hate speech, is still protected, though, right?

Rund Abdel Fattah (24:47)

Yeah. I mean, with that example, a clear distinction that the hate speech on its own was constitutionally protected. Right. Going out with those, the emblems, weapons, even the shouting of racist chants. But organizing, inciting violence, that is not protected under the Constitution. And so the Charlottesville organizers were allowed to march, but they were ultimately sued for conspiring to commit violence. That was the charge against them, not for the views in speech itself. I think it's also really interesting how social media is factoring into the question of free speech right now, because it's raising really big questions that are making it even more complicated. Right. As it stands, these rules apply online too. But there's a big question that's currently under debate around whether social media companies hold any responsibility. At the moment, they're completely exempt, but new First Amendment cases might change that.

Aisha Rascoe (25:46)

Soon after the break, a forgotten amendment makes its case.

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Aisha Rascoe (26:56)

Talking constitutional amendments. So some amendments, like the first and Second Amendments, their political lightning rods, you hear about them all the time. But there are other amendments that are rarely mentioned, almost forgotten. Like, did you learn anything surprising about these kind of dustier, less well known amendments?

Rund Abdel Fattah (27:21)

Oh, yeah, absolutely. I think, you know, while they're not all political firestorms, you realize just how important some of those Dustier amendments actually are. And one example that a lot of it was surprising to me as we were working on this episode was the third Amendment. If you've heard of it at all, it's probably been as a punchline to a joke.

Joseph Bloker (27:42)

I take the third all the time, every day.

Rund Abdel Fattah (27:46)

And then if somebody tries to call.

Joseph Bloker (27:47)

Me on it, they go, well, what is the third?

Rund Abdel Fattah (27:49)

That's when I take the fifth.

Ramtin Arablouei (27:51)

It's the one about quartering troops, two words that have probably been rarely said side by side since about the late 1700s.

Rund Abdel Fattah (28:00)

But here's what it actually says.

Irene Noguchi (28:02)

Amendment number three no soldier shall in time of peace be quartered in any.

Ramtin Arablouei (28:08)

House without the consent of the owner.

Irene Noguchi (28:10)

Nor in time of war, but in a manner to be prescribed by law.

Rund Abdel Fattah (28:15)

So in more modern terms, the army.

Aisha Rascoe (28:19)

Can'T live in your house.

Rund Abdel Fattah (28:23)

Yeah. So the army can't live in your house nowadays in 2024. Right. It feels really out of place because it's like, obviously the army can't live in your house. But when the Bill of Rights was written Tom Bell, he's a law professor at Chapman University, and he's kind of obsessed with the Third Amendment. He. He said that the. The Third Amendment was the amendment everyone agreed on. Remember I mentioned the Federalists, the antifederalists. There was a lot they disagreed on. Well, 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'd eat their food. You know, they'd sleep in their beds. And so this group of men at the time, in the. In the late 1700s, looked into the future and thought, this is a critical right, top three, right, it's the Third Amendment. So clearly at the time, it was really important and obviously pretty common.

Aisha Rascoe (29:22)

It's.

Rund Abdel Fattah (29:23)

It's interesting, though, even like, listening to that language of, like, quartering in your house, it feels like that Third Amendment is sort of stuck in time and it's, you know, been barely litigated, actually has never made it up to the Supreme Court. And Tom Bell explained to us that amendments, they're not just about the text that's written on paper. Right. What keeps them relevant, as we've been pointing out, is how they get interpreted and applied by the courts.

Irene Noguchi (29:47)

So it's very easy to look at Third and say, oh, yeah, interesting historical artifact is not relevant now. And I thought that, too. And then I started doing research, and I discovered the Third has been violated in American history time and again, repeatedly.

Rund Abdel Fattah (30:00)

During the War of 1812, the Civil War, World War II.

Irene Noguchi (30:04)

But to the shame of my profession, no lawyer anywhere seems to have noticed, hey, this is a corner of troops during time of war, and Congress isn't telling us how to do it. This is pretty plainly violated Third Amendment. As far as I can tell. No lawyer noticed it then. So, so much for our constitutional rights. I mean, it's wonderful they're written down, but if nobody gets up and defends them, they are not even worth the paper they're written on.

Rund Abdel Fattah (30:30)

I think that's a powerful right. If nobody gets up and defends them, they are not even worth the paper they're written on. So he's really saying, you know, unless people take it up 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 it could become relevant again with more National Guard appointments for things like climate disasters, hurricanes and things like that, or government responses to large protests. Knowing this amendment exists could actually be an important backstop to protect citizens from more chaos in times of chaos.

Aisha Rascoe (31:13)

The first 10amendments, the bill of Rights, they were ratified shortly after the Constitution, but now, as we've said, we're up to 27amendments. Do you have a sense of whether more amendments could be added to the Constitution?

Rund Abdel Fattah (31:31)

I don't have a crystal ball, but what I will say is the last time we ratified an amendment was 1992. And actually, right now, it seems like we're in a moment where there's a lot of resistance to adding new amendments, thinking about things like the Equal Rights Amendment or an amendment that would secure abortion rights. These are things that people have pushed and these efforts have failed.

Ramtin Arablouei (31:54)

And it's also partly because it's very difficult to pass an amendment in terms of numbers. It takes 2/3 of the majority in both houses, House and the Senate, to propose a new amendment, and then it takes 3/4 of the states to ratify something new. And can you think of anything? The states in this country right now agree on enough.

Aisha Rascoe (32:14)

And if there's one thing it seems like amendments need, it's agreement.

Rund Abdel Fattah (32:19)

Yeah. And, you know, I will say that process often looks messy. It's often not linear. And 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 amendments that's come through for me is that understanding that the questioning, the interpreting, the reinterpreting is part of the design actually makes you realize that maybe this 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 pulls 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 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 200 or so years, when it seems like the moments that the amendments changed or were added happened at those times of extreme technological and political change, it raises the question, what is going to be the role of amendments, new and old, in the future?

Aisha Rascoe (33:43)

To learn more about the evolution of America's founding document and what it says about us, subscribe to the Throughline podcast. So far, they've looked at six amendments in their we the People series, with more to come. This episode of the Sunday Story was produced by Kim Nader Fame Petersa with help from Sarah Wyman. It was edited by Jenny Schmidt. Special thanks to Julie Kane, senior supervising editor of Throughline. Kwesi Lee mastered the episode and Kevin Voelkel did the fact checking. The Sunday Story team includes Andrew Mambo, Justine Yan and our supervising senior producer, Liana Simstrom. Irene Noguchi is our executive producer. I'm Aisha Rascoe. Up first is back tomorrow with all the news you need to start your week. Until then, have a great rest of your weekend.

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