Claim OwnershipHow to Build a Nation in 15 Weeks
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Former Assistant U.S. Attorney Harry Sandick along with Jon Hatch and colleagues at Patterson Belknap revisit the hottest topics from each week in the Constitutional Convention of 1787, tracking their current place in our legal and political landscape.
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After four seasons, more than 70 hours, and 75 episodes, Harry and Jon share some parting thoughts on the Constitution, the problems and struggles of interpretation, the role of politics and compromise, and some constitutional near misses. Rejecting the idea of finished products, we nonetheless say goodbye for now. (Editor's Note: Harry and John, you are both most welcome and thank you for letting me a part of this.)
Despite the constitutional convention’s tentative rejection of term limits, early presidents establish a custom of two terms (each for their own reasons). After a few presidents flirt with a third (nonconsecutive) term, FDR goes for four, leading Congress to make custom binding. John Tyler takes over for Harrison and starts a custom of his own, but president succession remains unsettled. A later amendment fixes some problems but leaves room for mischief. (Editors Note: The primary recorder failed for this episode and the audio came from the microphones built into the computer. I am so sorry.)
Poor initial planning leaves Congressional terms and Congressional sessions badly out of sync, and 130 years’ worth of long and short sessions. A dispute over shipping subsidies rebalances the sessions, but leaves a short lame duck period. Tweaks to the presidential election process solve one problem, permits Congress to solve another (if it ever gets around to it), but leave a number of issues unaddressed.
The 24th Amendment goes halfway toward removing poll taxes—one of the many historical practices used to suppress voting on the basis of race and class—before the Supreme Court expands the scope of the 14th Amendment to go all the way. Earlier voting rights successes, lowering the military draft age to 18, student organizing, and a mediocre pop song lead to a change in the Voting Rights Act, and then to the 26th Amendment.
120 years of corruption and deadlocks finally allow reformers to achieve direct election of Senators, with the hope of a more responsive and functional Senate. (Points for trying, we suppose.) An absent-minded decision by the Federalists strips DC residents of the right to vote, and a legacy of racism leads to continued disenfranchisement. The 23rd Amendment restores the right to vote in Presidential elections, but further reforms are blocked.
Popular opinion rises against child labor, and the Supreme Court shrugs. Congress tries again, but the Court is unmoved. Congress passes an amendment, ratification stalls, we take a detour through Kansas, and questions about the ratification process are raised but not settled. Eight years of the Great Depression and court-packing threats cause a change in constitutional thinking, and the Court shifts away from property rights as the fundamental guarantees of liberty.
A multi-decade organizing project by the WCTU and ASL and the malapportionment of state legislatures leads to the passage of the 18th Amendment, with support from various factions. Alcohol use goes down, then doesn’t. Congress goes overboard in using criminal law to combat a public health problem, leading to backlash and repeal. The team discusses modern parallels, 21st Amendment jurisprudence, and the danger of infringing on the Forest Service’s intellectual property.
The delegates to the Constitutional Convention create distinctions without comprehensible differences. The advocates of broad taxation join the adversaries to luxuries to tax the carriage-riding classes. Justice Paterson begins a proud tradition of opinions on taxation that are long on rhetoric and short on reason. The Gilded Age Supreme Court zigs, zags, and runs in circles, and confuses Congress to the point of a constitutional amendment. Mr. King’s ghost is still waiting.
We’re back for the final season of How to Build a Nation in 15 Weeks. Join us as we discuss events and amendments from the past 100 years that remodeled the written Constitution into what it is today, including income taxes, the rise and repeal of prohibition, the expansion of democracy through the direct election of senators, presidential voting in DC, the end of the poll tax, and the reduction in the voting age, structural changes to Congress and the Presidency, and more.
We discuss the decisions and events leading to the end of formal Reconstruction, culminating with the corrupt bargain ending the election of 1876 and the continuing attacks on multiracial democracy in America. We conclude by reflecting on legacy of Reconstruction era amendments, the lingering effects of historical attempts to misrepresent and erase that legacy, and the unfinished work they represent. Participants: Harry Sandick, Jon Hatch
In the wake of the second Trump impeachment, we review the Johnson, Clinton, and (first) Trump impeachments (and Nixon’s resignation), and conclude that not much is new under the sun. We also reflect on the inherently political nature of the impeachment process, and ask whether it works at all. (It doesn’t, really.) Participants: Harry Sandick, Jon Hatch, Tara Norris
During World War I, suffragists pursue both national and state-by-state strategies. The National Women’s Party takes a more radical approach with protests and hunger strikes, and is met with violence. The Wilson administration and Congress yield after continued organizing, and the 19th Amendment is ratified. Further activism leads Congress to pass the ERA, but ratification falls three states short. Years later, three new states ratify, and the U.S. Archivist gets sued. Participants: Harry Sandick, Jon Hatch, Sofie Syed
We begin our discussion of the struggle for women’s political rights in the United States with the Revolution, with a focus on the fight against coverture and slavery, and the particular challenges for Black women. The abolitionist, labor, and temperance movements provide early opportunities for organizing. The Seneca Convention presents the Declaration of Sentiments. The 15th Amendment reveals a rift in the movement between white women and women of color. Participants: Harry Sandick, Jon Hatch, Sofie Syed
We discuss how organizing among African-Americans, continuing violence in the former Confederacy, and a union of principle and politics in the North lead Congress to move toward universal male suffrage, two years after rejecting it. Proponents of a guaranteed right to vote debate those seeking only a ban on racial discrimination, and conflicts erupt with some supporters of female suffrage. Things get messy in Congress. The end result is both momentous and compromised. Participants: Harry Sandick, Jon Hatch
The team convenes again to further discuss the January 6, 2021 insurrection and its echoes of the end of Reconstruction, as well as thoughts about the way forward.
Ongoing mob violence spurs Congress to try to help Black Americans achieve meaningful equality. But in the 1870s, the Supreme Court limits the clause to cover only state action, despite Congress’s intentions. In the 1890s, it allows segregation by state governments. In 1964, it trades anti-subjugation for anti-classification. And in 1967, it creates qualified immunity, and then later expands it to shield almost all conduct by state law enforcement. Participants: Harry Sandick, Jon Hatch, Kevin Opoku-Gyamfi
Congress draws on Article IV and the Corfield opinion to craft a new privileges and immunities clause, but the Supreme Court quickly narrows its scope to near-invisibility. Lochner era courts use the due process clause to promote economic rights but twist the Amendment’s meaning, until substantive due process is repurposed in the 1930s. Recent opinions hint at a resurrected privileges and immunities clause, but at what cost? Participants: Harry Sandick, Jon Hatch, Ian Eppler
We discuss ancient and early modern doctrines regarding the inheritance of citizenship, state and federal citizenship in the early republic, and early arguments for racial equality among citizens. We return to Dred Scott’s creation of a racial exclusion to citizenship, the Reconstruction Congress’s efforts to legislate race-neutral birthright citizenship, culminating in the 14th Amendment, and the persistence of racial and national exclusions. Participants: Harry Sandick, Jon Hatch, Tara Norris
In light of the January 6, 2021 insurrection at the Capitol and the second impeachment of Donald Trump, the team has reconvened to further discuss the history and mechanics of Section 3 and the use of impeachment against former government officials.
We begin our review of the 14th Amendment with the lesser-known middle clauses. Northern demographics, racism, and sexism block universal voting rights, leading to indirect support of male suffrage that is too complicated to work. Section 3 precludes officeholding by ex-Confederates but ends up interfering with the prosecution of Jefferson Davis. Section 4 upholds Union and cancels Confederate debts, and maybe means we can have a giant platinum coin. Participants: Harry Sandick, Jon Hatch, Andrew Willinger
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