(Peter Sagal) Travel around America and you're bound to run into the Constitution.
It seems to be everywhere.
(Sarah Palin) The Constitution... (Barak Obama) Our Constitution... (Rachel Maddow) The Constitution... (Pat Buchanan) You haven't read the Constitution...
This little document-- it means everything to us.
It's like the Big Bang.
it's the most momentous thing to happen in the modern world.
(Peter) The Constitution has been around for more than 225 years, but many of us don't have any idea what it says.
Of course, that's never stopped us from arguing about what it means.
I'm Peter Sagal, and I'm taking a journey across the country to find out how the Constitution works in the 21st Century.
In this episode-- the framers thought they'd come up with a pretty good system.
But even they didn't really think the Constitution would be around forever.
They would be astonished that it has lasted in the form in which they crafted it.
(Peter) In fact, it's lasted longer than any other written constitution still in use today.
It's this brilliant thing that we did.
(Peter) Along the way, it's been pushed to the brink.
I am not a crook.
(Peter) And stretched to the breaking point.
In every war, there are a lot of people who think the President acts too aggressively.
So there are federal agents in your bedroom, you're a 16 year-old girl... Federal agents, police officers, everything.
(Peter) Over the years we've given that document a real workout.
And these days, it seems like it's taking a lot of hits.
We are on the brink of a partial government shutdown.
[yelling] Shut it down!
This dysfunction is brought about by the election of crazy people.
What's lost are a lot of the voters in the middle.
"We the people"have to have an intervention -- Uncle Sam is a drunk!
Your Constitutional provisions are no match for me!
Is our Constitution up to the challenges of the 21st century?
Civics is a dirty business, ladies and gentlemen.
[motor purrs] [guitar and piano play softly] (Peter) Sometimes the search for the American Constitution takes you places even a Harley can't go.
Welcome to Reykjavik, Iceland.
This country of about 300,000 people became an international financial capitol during the boom years.
Then in the crisis of 2008, everything fell apart.
The three largest banks collapsed.
Parliament, which meets in that building over there, fell.
The Prime Minister resigned.
Now, to keep anything like this from ever happening again, the people of Iceland, right now, are engaged in creating and then approving a brand-new national constitution.
They're throwing the old one out and starting again.
The Icelanders took a real 21st century approach-- inviting ordinary citizens to submit ideas via Facebook and Twitter.
That's why Article 6 is nothing but cat videos.
All right, I'm kidding!
Maybe they're on to something.
Creating a new constitution, one that's custom-built for modern times.
Some of the members of the Constitutional Council are traveling the country to promote their new crowd-sourced national charter, and I asked them for a lift.
(Peter) This is pleasant, this is the magic bus, you call it?
(man) Yes.
(Peter) Are you guys sleeping on the bus?
(man &woman) No.
No, no!
(man) Just napping.
[laughs] Oh wow, so this is it.
This is the draft constitution.
(man) It's yours.
Oh thank you!
Are there other members of the Constitutional Committee on the bus?
Yes.Oh, we have to get you to sign it then.
(man) [laughs] (Peter) Thank you very much.
I will not sell this on eBay.
(Peter) One of today's stops is a remote fishing village, where they will try to get the locals to support the new constitution.
[speaking Icelandic] (Peter) Apparently, national constitutions are like cars-- after enough wear and tear, they can break down.
But being in Iceland made me wonder how our own Constitution is holding up.
Did our founding fathers really imagine we'd abide by it for more than 225 years?
Well, if anybody knows what the Founders were really thinking, it's historian Rick Beeman.
How long a view did they take, I'm curious about this because you've talked about as we think about the founders, what did the founders think about us, did they look at this country - they wanted to build a country that would last 100 years, 1000 years, did they think about that?
If someone had, you know, made a bet and, and said ah, this, this Constitution you're crafting will last 50 years.
They'd say eh, not so sure about that.
They would be astonished that it has lasted largely in its, in the form in which they crafted it... Really.
...ah, for 225 years.
But I guess what I'm saying is, wasn't that their intent?
Didn't they want to craft a government that would last indefinitely?
Or did they not know?
Peter, they had the humility to know that the union they were crafting was likely to be a fragile one.
That it would almost certainly change as the country changed.
So they were creating a framework, but most important of all, they understood that this framework had to be a flexible framework.
(Peter) The founders didn't all agree on how much flexibility there should be.
Thomas Jefferson believed that each generation should give the Constitution a complete makeover, rewriting it to suit changing times.
"The earth belongs to the living,"he said.
James Madison disagreed.
He thought the Constitution that he helped write had the best design anyone could come up with.
And that frequent renovations would undermine the whole thing.
In the end, the words written down in 1787 have never been thrown out.
But built into the Constitution is a way to change it... by adding amendments.
Yale law professor Akhil Amar sees amendments as a kind of "constitutional extended warranty."
One of the most amazing things about the Constitution is that vast creative white space after the last amendment.
You know, it's like that billboard: "your message goes here."
What are we going to put in that space?
This is a deeply democratic idea that there remains work for our generation to do.
(Peter) The process is spelled out in Article V, and it's far from easy--it takes a 2/3rds vote of both houses, or a national convention, to propose amendments, then they have to be ratified by 3/4s of the states.
Over the past two centuries, thousands of amendments have been proposed, but only 27 of them have actually been ratified.
Amendments have addressed small things, like moving the date of presidential inaugurations.
And big things, like ending slavery.
Here's the bottom line.
We've had lots of good amendments and almost no bad ones.
So amendments are basically on the side of history.
They're there sort of surfing with the current.
With the arguable exception of Prohibition, which didn't end so well.
Okay, so every amendment has made amends, has made the system better.
[motor purrs] (Peter) In a way, each generation gets the chance to take part in revising the Constitution... without having to start from scratch the way they did in Iceland.
But amendments can take a long time to enact, or even fail to pass.
So there has to be another way to make changes without changing the Constitution.
There is; it's by using the machinery the Constitution itself provides.
[electric guitar &drums play rock] So you into doing it?
No, no, I'm just hanging out here.
I'm just trying to control my terror, you go on.
(Peter) Claressa Shields is a pioneer in her sport.
She won the gold medal in 2012; the first year women's boxing was ever offered at the Olympics.
I remember when my boxing coach asked me, so why do you wanna box?
I said 'cause I'm tired of losing at basketball.
[laughs] And he said okay.
And I started boxing and um, that was the first place I felt at home, and I can't even explain it.
You know how you go somewhere you just feel accepted, period?
That's how I felt.
(Peter) Claressa was born at the right time.
With enough ability and dedication, there was no limit to how far she could go.
You're not facin' the body again.
Boom!
(Peter) But it wasn't that long ago that the idea of women in sports was considered, well, it wasn't really considered at all.
When it came to sports, there were men who played sports, and that was pretty much it.
In 1973, only 1 in every 27 women played a sport in high school.
Now, it's 1 in 3.
What caused such a dramatic change?
We have to look back to the 1920s.
Women had just won the right to vote, but they were still a long way from being treated as equals with men.
It seemed like the best way to correct that was to change the Constitution, to guarantee equal rights for women.
So in 1923, the Equal Rights Amendment, or ERA was introduced into Congress.
But for 50 years it went nowhere.
In 1972, Congress responded to a ground swell of feminism, by finally passing the ERA.
Of course, the Amendment wouldn't be law until the states ratified it...
This is the time that we will make women and men share equally in the greatness of America.
[chanting] ERA!
ERA!
Ratify the ERA!
(Peter) But that process soon stalled.
For the ERA's supporters it was a bitter disappointment.
But there were other ways to bring about change ... without changing the Constitution.
President Nixon had already taken one decisive step.
He issued an executive order and with the stroke of his pen, he created expanded opportunities for women in the federal workforce.
Congress took further action.
A provision was inserted into a funding bill, a section called Title IX, to ensure equal access and equal spending for women in federally-funded education programs, including athletics.
And the Supreme Court played its part too by strengthening and broadening Title IX's protections.
Over the past 40 years, Title IX has revolutionized women's sports.
Christie Halbert was Claressa's coach when she competed in the Olympics.
She calls herself a Title IX baby.
It's a different world for women in sports than when she was growing up.
How did you feel when Claressa won gold at the Olympics?
What was that moment like for you?
Oh, I knew she was gonna win.
[laughs] Having met her I think I could have been equally confident.
Right, it was very exciting, and Claressa was born at a time that she never knew that women couldn't participate in school sports and couldn't get scholarships, and she's never known a time in her life when women could not box in her country.
All of those laws had to change and policies had to be changed for her to have that opportunity.
So that is success.
(Peter) Even without ratifying a constitutional amendment, our government could bring about big changes for women.
Title IX was not just about sports.
It had a profound impact on our society as whole.
(male announcer) "Ladies and gentlemen, the Olympic medalists!"
(Peter) It's amazing to think how far we've come, from those days... to these days.
And how we've done it using the same basic charter as our guide.
But when the framers were writing the Constitution, they were worried less about its staying power, and more about, well, power.
After all, they had just fought a war against a British tyrant, and they weren't eager to see homegrown tyranny in their new government.
So they separated power into 3 branches and built in ways for each branch to keep the others in check.
Three branches, vying for dominance, but kept in balance.
Sounds like your average day on YouTube.
Well, it's also the big idea behind our government.
Instead of having a king, one top dog, we have 3 hungry pooches, all out for the same chew toy, called power.
It's a high-stakes game, and it's another reason our Constitution has survived.
Here's how it works-- Congress can pass laws, but the president has an ace up his sleeve-- the veto.
The president can spend lots of money as head of the Executive Branch, but Congress has to approve his budget.
As for the Supreme Court, it always has the final word on what the Constitution means.
It can strike down a law passed by Congress, or an act of the president by declaring it unconstitutional.
When the Supreme Court says so, all bets are off.
So the Constitution sets up a divided government in which the 3 branches have to cooperate to get anything done.
Great.
But our Constitution also requires something else.
It's not explicitly laid out in the text, but it was probably expected of us by our gentlemen founders.
You can call it good manners, or maybe respect.
The Executive has to respect the Congress, it has to respect the Judiciary, and on around again, into a functioning government.
It's sort of government by the consent of the guys who are governing, to be governed by the other guys who are governing, right?
But what happens if one branch, or one guy in one branch, just refuses, and decides to do whatever the heck he wants?
(Peter) It began during the Presidential campaign of 1972: 5 burglars were caught planting listening devices at the offices of the Democratic National Committee, in Washington's Watergate Complex.
The men were linked to the Committee to Re-elect the President.
The president in question-- Richard Nixon.
What followed was the 2-year-long Watergate Scandal.
Nixon had not actually ordered the break-in, but he orchestrated a cover-up.
Hush money had been paid, the connections to the White House went deep.
The FBI launched an investigation.
So did the "Washington Post" and other newspapers.
The Attorney General named a special prosecutor.
I welcome this kind of examination... Because people have gotta know whether or not their president is a crook.
Well, I am not a crook.
(Senator Sam J. Ervin) When did you first begin planning the cover-up?
I don't think there was any discussion that there wouldn't be a cover-up.
(Peter) The Senate convened a Watergate committee, and its televised hearings riveted the nation.
The misuse of power is the very essence of tyranny.
Mr. Nixon has acted more like an imperial ruler.
Lied repeatedly.
Treason, bribery, or other high crimes and misdemeanors.
(Peter) Soon it was revealed that President Nixon had recorded everything that went on in the Oval Office.
But when Congress and the special prosecutor demanded the tapes, the president defied them, citing executive privilege.
Finally Nixon provided transcripts, but they were edited, with lots of holes and gaps, and plenty of "expletives deleted."
(Nixon) I have provided to the special prosecutor, voluntarily, all the material that he needs.
(Peter) Congress, for the first time in more than 100 years, began to talk seriously about impeaching the President of the United States.
Two branches of our government had reached an impasse.
That's when the third branch, the Supreme Court, entered the fray, ruling that Nixon had to turn over the actual unedited tapes.
This was the moment of crisis-- would the President of the United States obey the Court's order, even though he knew the tapes could cost him his presidency?
In the end the president did turn over the tapes.
They revealed that he was deeply involved in the scandal... and that he had lied to the American people.
The House Judiciary Committee voted to recommend that the House impeach the President.
Facing the certain prospect of removal from office, Nixon resigned, on August 9, 1974; the first and so far only president to do so.
So Watergate was a national trauma.
But it was also a test.
The Executive Branch defied Congress.
Congress went to war with the President.
The Supreme Court intervened and Congress ended up removing a president from office, forcing him out.
And all of this happened without troops in the streets.
187 years after it was written by men who never could have conceived of tape recorders or hidden microphones or televised hearings, the Constitution of the United States worked.
One reason it worked is that in our country, everyone has to obey the rules; even the president.
But the Constitution doesn't always provide a lot of guidance for figuring out those rules.
It's a masterpiece of brevity, which may be one of its greatest strengths.
In just 4 pages of parchment, the Constitution created our framework for government, but later generations have had to fill in a lot of the details.
And whenever disagreements come up, the 9 Justices on the Supreme Court are the referees, they make the final calls.
But with so little to go on, how do they reach their monumental decisions?
I thought I'd ask former Justice Sandra Day O'Connor.
It's not really every day I get to talk to a Supreme Court Justice, so before we get into it, I just had to ask her what really goes on behind closed doors, when the Supreme Court is just, you know, hangin' out in their robes...decidin' cases.
Would I enjoy it if I could see it?
Is it fun?
When you guys sat around and argued stuff over?
You may get kind of tired of it; they have a lot to say.
Really?You might get bored.
Did you ever get bored?Absolutely.
Really?
Did you ever like take out your phone and started playing...Never.
'Cause I probably would.
Which is why I shouldn't ... Well, you can't.
You have to pay attention.
So when you get to the toughest questions of the constitutionality of a federal law, say, in the Supreme Court, what were your guiding principles for making that decision?
To be fair, you have to read the law, and try to fairly interpret the language, and understand what was intended by the drafters of the language.
You have to follow precedent and to become familiar with all of the cases in the past that are applicable.
Did you put a lot of weight into what's called original intent?
What the founders or framers thought of as they wrote these particular... Well, I think the first thing you look at is the language.
What did it say?
And then you look at the precedents.
What has the court said about that provision in the past?
And you try to follow those precedents if you possibly can.
But it's sometimes difficult, especially when you get to larger Constitutional issues, right?
Sometimes the questions are very tough, yes indeed.
Very tough.
(Peter) As the justices face their tough questions, they aren't all alone.
Our constitution may be only 4 pages long, but there must be millions of pages of Supreme Court decisions to draw from, representing the collective wisdom of all their predecessors, stretching back to 1790.
Of course, today's justices are often sharply divided about how to make their decisions, and how to interpret the Constitution: whether to stick to the presumed intent of 18th century Americans, or interpret the document in the light of present-day experience.
But even if the justices don't agree with each other, and even if we don't always agree with them, we abide by their decisions.
They have the force of law.
So our brief Constitution has lasted so long in part, because we can make occasional repairs by adding amendments then passing new laws.
The 3 branches keep each other in check, and the system runs smoothly, just as designed.
And if you believe that, I have a large obelisk in Washington I can sell you.
Actually, the structure is a lot more fragile than you might think.
It all depends upon a precarious balance.
And there are times when that balance just does not hold.
[loud explosions; machine gun fire] (Peter) Somebody once said that being shot at really focuses the mind.
But during wartime, we are apt to lose our focus.
And the Constitution can become a casualty.
During the Civil War, for instance, Abraham Lincoln declared martial law, suspended habeas corpus, and tried Southern sympathizers in military courts, actions some said were unconstitutional.
He even ignored an order by the Chief Justice to reverse course.
[loud explosions] In 1942, soon after the attack on Pearl Harbor, President Roosevelt issued an executive order that led to the internment of more than 100,000 Japanese Americans, most of them American citizens.
They were forced to abandon their homes and live in desolate camps until the end of the war, even though there was little evidence they posed a threat to national security.
After 9/11, America mobilized to wage a new war against terrorism.
Executive power kicked into high gear.
One of the first actions we took to protect America after our nation was attacked was to ask Congress to pass the Patriot Act.
(Peter) The Patriot Act gave the Administration broad authority to carry out wiretapping, surveillance, and the indefinite detentions of suspected terrorists.
There was bipartisan support in Congress, and the public, for expanding government powers to fight terrorism, but many civil libertarians said the law ran afoul of the Constitution.
Innocent people were caught up in the crackdown during the following years, including a young woman named Adama Bah.
So you were 16 years old, and it's 2005 and what happened?
I was sleeping in my bedroom and federal agents came into the house.
They walked me to the elevator and my mom is like, "Where is she going?
Where is she going?"
and my brother and sisters-- 'cause they didn't even know, my mom didn't know I was gonna get arrested.
(Peter) Adama was picked up on immigration charges.
She was surprised to learn that even though she'd lived in the U.S. since she was a baby, her parents had brought her here illegally.
But that's not the main reason the government was interested in her.
So your lawyer shows up...
They start asking me all these weird questions: "Have you ever took out a library book about bombs?"
These are your lawyers asking these questions?
Yeah, my lawyers asking me.
I'm like, "no."
They start asking me, "Have you ever visited Osama bin Laden's website?"
I'm like, "He has a website?"
and she goes, "Do you have any idea why you're here?
"I'm like, "no, why?"
That was the first time she told me.
What did she tell you?
She was like, "They suspect you of being a suicide bomber."
And do you know why they thought that you might have been a suicide bomber?
To this day I don't know.
Really, you have no idea?
To this day I don't know.
(Peter) Adama was held in a Pennsylvania detention center, and subjected to frequent strip searches.
So they put me in this little cell and I'm nervous and I'm scared and I'm crying.
I'm like, what's going on?
I think at that moment, everything hit me.
I start washing my face, scrubbing my face, I just keep scrubbing and scrubbing and scrubbing.
I just broke down [with emotion] and I just sat on the floor and I just started crying more.
Sorry.
(Peter) After 6 weeks in detention, Adama was released.
But the government has never revealed what evidence led them to believe that she was a suicide bomber.
Adama Bah's story is unsettling, but there were hundreds of reports of abuses against people detained as possible terrorists.
Complaints of human rights violations continued throughout the Bush years, and beyond.
President Obama faced controversy too, for maintaining the indefinite detention of terrorism suspects, and for drone attacks and targeted assassinations, including some aimed at American citizens.
Article II of the Constitution puts the President in charge of the military.
But many believe the Executive Branch in particular has gone too far in fighting the war on terror.
Jack Goldsmith headed President Bush's Office of Legal Counsel.
Can you summarize what you think the constitutional obligation in the executive is in times of war?
Well, let's just say this is a perennial question.
You know, Lincoln struggled with this in the Civil War, Roosevelt struggled with it in World War II.
Article II of the Constitution is very short, and the powers it confers on the President are very general and they're broadly worded.
Forever the country has been debating what those clauses mean, and it's still not settled.
They're debated in every war.
And in every war, there are a lot of people who think the President acts too aggressively Did we lose track of the Constitution in the panic after what happened there on 9/11?
There are many documented examples of the Government going too far just after 9/11, rounding people up that they shouldn't have, and in some sense, overreacting.
That always happens at the outset of war.
I'm not making excuses, but it happens at the outset of war.
I don't think that those excesses taken alone, whatever they were, show that the Constitution wasn't working.
The Constitution is not just about protecting rights; it's also about ensuring that we can have national security.
The President at the outset of a war, especially a war in which he doesn't understand the enemy, we don't have intelligence, is going to do everything he can to keep the nation safe, and that means doing things that seem, from the perspective of hindsight, to be wrong.
(Peter) In the aftermath of every war, there is plenty to regret.
While we debate whether the government has gone too far, people suffer, and so do our institutions and our values.
But war isn't the only time our system can break down.
Sometimes the Constitution is threatened not by government action, but by government inaction.
Right now, for example, my home state of Illinois is having a huge fight in federal court, with the other 5 states that border the Great Lakes.
At issue is the Chicago River, right here.
It flows from Lake Michigan all the way downstream to the Mississippi River.
The other states want Illinois to block this river, to cut it off.
Why?
To stop the progress of a vicious, dangerous alien invader.
(Peter) These aliens may not be from outer space, but their impact on states' economies could be earth-shattering.
They are called Asian carp.
These giant bottom-feeders would destroy the region's $7.5 billion fishing industry, as well as the 800,000 jobs that are supported by it.
(Peter) But this is not only an environmental and economic crisis.
It's also a constitutional crisis.
To learn why, I've come to a stretch of the Illinois River at the little town of Havana.
It's a nice place, and the fish are jumping.
Holy moly!
(man) Now they're just showing off their numbers here.
[Peter laughs] (Peter) So what are we doing out here, what's going on?
(man) We're out on the Illinois River, and we're running some electric current through these shockers.
It makes the Asian carp jump out of the water so scientists can get a handle on how many fish are in the water here.
(Peter) All right, I think I have the answer.
There are a lot of fish in the-- this is amazing.
(Peter) The carp are spreading north, and heading for the Great Lakes.
And the Great Lakes states are up in arms about it.
But it seems the only way to stop the carp is to block the flow of the river, and that, Illinois refuses to do.
So how can these warring states solve their intractable problem?
Whenever anybody talks about these fish, and the possibility of them getting to the Great Lakes, it's like the apocalypse, it's like War of the Worlds, except the aliens will win in the end.
It sounds like this is turning into a failure of the federal system.
That with these fish the Constitution has met its match.
It can't solve this problem.
Oh, the Constitution is absolutely up to the challenge, it's the current leadership in all 3 branches of government that's not taking their constitutional authority, their constitutional responsibility.
The Supreme Court can resolve the disputes between the states, Congress can step up and create a policy or enact laws, allocate resources, and the President, as the head of the executive branch, can order his agencies to take more decisive action.
So the federal government has the Constitutional tools to solve this problem, it has the mandate, essentially, to solve this problem under the framework of our Constitution, they're just not stepping up and doing their job.
(Peter) I know the framers had a lot to deal with in Philadelphia; heat, bugs, they didn't have leaping fish attacking them.
I know I should love all animals, I'm an environmental lawyer, but I gotta say these guys are pretty gross.
[thunk] (Peter) Woah!
[laughter] So that is the greatest threat to our nation since the Civil War right there.
Like ha-ha ha-ha.
Your Constitutional provisions are no match for me.
This is the grossest thing I've ever held in my hands.
And I have small children.
There!
I just made the problem slightly worse.
(Peter) It sounds like the Constitution hasn't failed us, as much as we've failed the Constitution.
It needs us, citizens and politicians alike, to remain true to the document, or its words won't mean much.
And that's true, whether we're engaged in war, or battling over a bunch of slimy fish, or facing ordinary, everyday crises.
Unfortunately, in Washington, dysfunction is now the status quo.
Just turn on your TV.
Congress's approval rating is at an all-time low.
Americans are growing less confident about the direction of the nation.
People don't like Congress.
Do nothing Congress.
This is gridlock of a massive proportion.
We are on the brink of a partial government shutdown.
Shut it down!
What troubles me the most is I've never seen such polarization.
Washington is more polarized than ever.
We look around the government today and we see it failing to function, we see laws can't get passed, we see the House can't agree with the Senate, they both can't agree with the President-- was that built into the machinery, the possibility of that kind of disagreement?
The framers would've hoped that dysfunction would not have been built in to the structure of the government.
But deliberation-- absolutely.
It's not as if when they looked into the future they'd say it'll be great, Congress will hate the President, the House will hate the Senate, therefore nothing bad will be done, they assumed that with these limitations, people would act in good faith, agree, come to a consensus, act therefore with moderation.
That is exactly right, and again a, a very important, precondition of their thinking, was that they did all think of themselves as civil, virtuous statesmen.
So partisanship and self-interest hopefully would always take a backseat to the public good.
(Peter) But the framers failed to predict one important factor that's not mentioned in the Constitution-- the rise of political parties.
In fact, George Washington hated the idea of political parties.
He was sure they would create too much friction and conflict.
But by the time Washington left office in 1797, there they were, two parties, taking opposing views on just about every issue.
Sound familiar?
Today the two parties in Congress seem more polarized than ever.
The aisle that traditionally separates them has become more like a no-man's land on a bloody battlefield.
And with both sides locked in combat, well, not much gets done.
Barney Frank spent 35 years in the trenches of the House of Representatives... Maybe he can explain what's going on.
After all, he's well-known for his mild manner and calm demeanor.
...while your stupidity gets in the way of rational discussion.
You call me boorish....
I'm not going to be bullied by your ranting.
Is blatant hypocrisy a violation of the rules of the house?
(woman) Will the gentleman yield?No, I said no!
(Peter) Seriously, Congressman Frank is retiring, so I figured that on his way out the door, he could offer a parting glance, and tell me why he thinks this place is such a mess.
Look, we are in a difficult situation now, because of James Madison and the voters.
(Peter) Wait... James Madison and the voters?
We're in trouble because the Father of the Constitution and these patriotic American voters are doing what exactly?
James Madison's role was to devise a unique system of government.
So we have what's called the system of checks and balances.
That can work much of the time except when the public gets into a mood.
And the electorate as an entity sent two very different sets of people here in 2008 and 2010, and then said ok, play nice.
Well there were some very fundamental differences here.
Is that a bug or a feature?
Is this like a flaw in the Constitution that it gave us this mess, or is it what it's supposed to do?
The basic structures work.
That's, you know, they're not vague.
But I think it is an imperfection, that is, I think we are excessively weighted in our Constitutional system towards inaction.
But it was not a serious one until it interacted with this very radical shift in the electorate.
So it becomes a flaw, when you have the electorate sending people who are so different to two elections in a row.
(Peter) The polarization in Congress is said to be just a reflection of the country as a whole, and it gets worse when we have the kind of seismic electoral mood swings that Barney Frank describes.
But if our government is operating at less than maximum efficiency, well-- some people think this isn't such a threat to our republic after all.
In fact, my friend, P.J.
O'Rourke, believes the framers would have preferred it that way.
What about this idea that people have created, um, a recipe for stalemate, constant bickering, partisanship, and general misery, or are you in favor of that?
I'm in favor of all those.
Well, we have a 3-way traffic jam here, and, you know, when you read the thing, it's clear that tyranny was more worrisome to the Framers than legislative deadlock.
They wanted it to be hard to-- look how hard it is to change the Constitution.
You read the article about amending the Constitution, this is not something you can do like, between breakfast coffee and grabbing a sandwich at Subway.
It's, it's a big deal.
I don't think they wanted it to be easy to make laws.
They were more worried by tyranny, by the kind of executive tyranny that was shown by the British government over the colonies, than they were worried about being a little slow to get the Highway Appropriations Act through.
Right, so you think it's fine.
I think it's fine.
It's working according to...
Anything really that slows, anything that slows the legislative process down so that people have to think twice before they act-- measure twice, cut once.
What about the argument that all this stuff needs to be done, that we can't get it done.
Oh, everything always needs to be done.
This is like the way we all feel when we wake up in the morning, oh my god, there's so much that needs to be done!
Then we go through the day and we don't get any of it done, and the world doesn't end.
Then we realize at the end of the day I should've had that Bloody Mary!
[laughter] (Peter) Maybe P.J.
's right.
Maybe the glacial pace of legislation isn't the worst thing in the world.
But these days, partisan politics is doing more than just gumming up the works.
Some say it's undermining the Constitution, threatening democracy itself.
Imagine for a minute, that, say, Ohio, is a big, juicy apple pie.
Ohio has 16 congressional districts, so like a pie, Ohio has to be sliced up into 16 different pieces, and each piece gets to elect its own representative.
Each district must have roughly the same number of people, and the district lines are supposed to be revised every 10 years, after each census.
But the Constitution leaves the slicing and dicing up to the states.
So the party in power can divide up the state however they want to make sure they stay in office.
You can find a prime example of this in the city of Baltimore.
That's where I'm meeting James Browning.
He works for the group Common Cause, which advocates reforming the way Congressional districts are drawn up.
Hello!
Hey Peter, how are you?
I'm fine James, how are you today?Great.
This is the neighborhood you wanted to show me?
This is it, right along here.
Sometimes with redistricting it's not so much that there's a Democratic party or a Republican party, but there's an incumbent party, and they want to make sure that the incumbents are re-elected, so they will pack lots of Republicans into a district to help a Republican win, pack lots of Democrats into a district, and what's lost are a lot of the voters in the middle.
(Peter) Carving up districts for political gain is so common and so old a tradition, it actually has its own name.
Back in 1812, the governor of Massachusetts, Elbridge Gerry, created a district so ridiculously shaped that it resembled a demonic salamander.
When you combine Gerry's name with Salamander, you get a term as convoluted as the districts themselves.
We call it gerrymandering.
Nowadays, with advanced technologies and endless data, drawing these maps has become a partisan science down to the very street.
Oh, that's the Congressional line, by the way.
What?
We just crossed from the 7th district into the 3rd district.
Down the middle of this street.
It looks exactly the same.
So how does this diminish democracy?
One person, one vote.
You still get to vote, right?
Well, there should be the power in a community to come together and elect someone who really connects with that district, but what happens with gerrymandering is, it gets turned around and you basically get communities moved around like pawns on a chessboard.
This is another district line, by the way, so that's our 3rd district that we're in now... What?
...within about two blocks.
So we just walked through an entire congressional district in one block.
That's right you could literally, you could have a conversation standing here with someone standing two congressional districts away just about.
It's like, hello, I'm in another congressional district.
That's right.
Now I'm in yours.
Now I'm in the other one!
That seems crazy-- why is there a congressional district one block long?
(Peter) It's even crazier when you see the fractured, twisted shape of this district.
But there's a method to the madness.
It's designed to group together voters who usually vote the same way.
(James) It's about what's best for the incumbent congressman, not what's best for the neighborhood.
Basically, the better they are at drawing these funny-shaped districts, the worse off everybody else is.
That's exactly right, and frankly we're caught in a vicious cycle where if the people in power are ever more partisan, they are more and more interested in making these partisan districts to support the extreme wings of their party.
So it's just sort of this self-replicating cycle of misery?Yes.
That's great.
(Peter) Gerrymandering helps incumbents win.
But the big losers are the voters.
If representatives have safe seats, there's no reason to listen to any constituents who don't agree with them, and didn't vote for them.
The normal democratic process is shut down.
As if all that weren't bad enough, legal scholar Larry Lessig believes another issue has pushed us toward a tipping point in our constitutional history.
Would the founders, the framers, the people who wrote the Constitution, recognize the government we have now?
No, not at all.
Why not?
There are a lot of big changes.
They would not have recognized this whole business of private money flowing into political campaigns in a way that fully distracts members of Congress and the President from what they're supposed to do, for the purpose of raising money to be able to run their campaigns.
You've said the system is corrupt, you've used that word repeatedly.
Yeah, it is clearly corrupt, but it's not corrupt in the way that most people think of corruption.
It's not people engaging in criminal behavior, instead it's corruption, not of the individuals, but of the system.
Because what the framers imagined was a system where Congress would be quote, "dependent upon the people alone."
We've evolved a radically different congress.
We've evolved a congress which is increasingly dependent, not just on the people, but dependent upon the funders.
And the funders are not the people.
What sort of effects do you see because of this system?
How is our politics distorted?
When members of Congress spend between 30% and 70% of their time raising money to get back into Congress to get their party back into power, this is like a drug addict or an alcoholic who is constantly seeking that fix.
Because he or she knows that unless they finds the fix he won't be able to function inside the system.
At some point, "We the people" have to have an intervention.
Uncle Sam is a drunk, and we just have to step in and say this system is making it so you can't do your job.
I'm really kind of horrified by the image of Uncle Sam strung out on drugs.
Look at our government; that's what we've got.
(Peter) If Larry Lessig and a lot of other critics are right, the democratic process has been hopelessly corrupted.
After 225 years, the framework that the founding fathers designed has become tangled up in the weeds of money and partisan politics.
Have "We the people" lost our voice?
Should our house be condemned?
Well, Kurt Lash thinks there's life in that old Constitution yet, if we'll just use the tools it provides.
What would you like to see happen to bring us back to a better vision of the Constitution?
The place you would begin is with the text of the Constitution itself.
The Constitution doesn't begin with the words, "We the government, it says "We the people."
And that means it's a document that's supposed to reflect our considered ideas.
We used to know how to do that.
We used to know how to control our own Constitution.
To the degree that we give away that sovereignty into the hands of the officials, we're actually not being true to the document itself and its announcement that it's supposed to be our Constitution.
But at a certain point you've got to make judgments about what you need to do now.
There are gonna be times when we as a people are going to decide a change needs to be made.
The way it begins, the way you do it, you start with you.
then you start talking to me.
Then you start talking to the people around you, and ultimately you convince a city full of people.
You change city government, then you change state government.
Ultimately, if you can get enough state governments to change, then you can get a constitutional proposal on the table.
It can be done, it may be a bit of a lost art, but it can be done.
(Peter) So it seems that what really keeps the Constitution working is, well... us!
It's how we use it that matters.
If we don't read it and act on it, and believe in it, it's just words on paper.
It reminds me of another document people still use today, one that is much older than the Constitution.
And I know the perfect person to talk about that one.
It's my brother Doug.
That would be Rabbi Douglas Sagal.
You want to take off the little pointer things?
The "little pointer things"?
Is that the technical term, "little pointer things"?
Actually it's called a yad, but it is a pointer thing.
A yad, I knew that once-- This is just like my bar mitzvah, which was a long time ago.
The Torah is, as I have no doubt you remember... is made up of the first 5 books of the Bible.
This is the sacred text of the Jewish people.
Let me ask you this, so you're a rabbi.
You never thought I'd do it, did you?
I know, your job is to interpret this incredibly ancient text written on animal skin, for 3000 people who live in modern New Jersey.
That's a full-time job and sometimes very stressful.
Is there anything that you have learned doing this that you think you could offer as advice to those people who are out there trying to apply a 225-year-old document to life in these modern United States?
Well, my own view, and again this is my view, is just like the Torah, the Constitution is a living document.
I believe, I could be wrong, that the founders intended it for it to be a living document just as the Torah is a living document.
There's a very famous Talmudic story about the rabbis who actually shout up to God and say "Lo Ba'Shamayim He."
That'd be the Hebrew part.
They say "It's no longer in heaven, you've given the Torah to us, it's ours now, to, uh, develop our life from it."
(Peter) So my brother may not be an expert on the Constitution, but he seems to be saying that just because something is old, doesn't mean it's out of date.
He can interpret it to fit the lives of people around him, today.
So what does a real constitutional scholar think?
Why has it endured?
I mean, there are imperfections times change, it's been two- and-a-half centuries, almost, why do you think we've kept it the same way?
Because the people keep growing and deepening.
So it's the "We the people," this idea--it's an intergenerational idea.
It's about posterity, and generation after generation has joined the game and been willing to play it.
Is there a misconception about the constitution that you'd like to correct that you run into?
I'd want us to remember this document, this Constitution isn't just about what happened in 1787.
But what has been happening every day since and what is still happening.
Because it's this epic... flawed... spectacular... conversation over two centuries and it's still continuing.
And it's more perfect than what came before, and it's the job of our generation to make it more perfect still.
(Peter) What about people like Adama Bah?
For her, the system was far from perfect.
How did this whole experience affect your feelings about this country?
To be honest with you, I don't want to live anywhere else but in America.
Even after this?Even after, this is my country.
I mean, it's not perfect, but people like me can make it perfect.
People like me telling my story can make it perfect.
(Peter) Coach Christie Halbert feels the same way.
I believe in the power of the people.
And no matter what laws we have, no matter what amendments we may add in the future, I think it really comes down to people, that we have to believe.
It still falls to the citizens to see it through.
(Peter) People power...
It's working out well for my friends in Iceland.
After all, it was the people who rose up and demanded a whole new constitution.
They even borrowed an idea from us, their new constitution starts with the words "We the people who inhabit Iceland."
We want a new constitution with liberty and responsibility.
(Peter) I think you guys are awesome.
I think you guys are clearly going to dominate the political process.
I hope it succeeds!
(Peter) It's been quite a journey-- and I don't mean the bike trip.
I mean the road trip we've all been on for more than 225 years.
Fortunately, we've had a good map.
So I've been traveling the country looking for the Constitution and it turns out it's right here in Washington DC.
Who knew?
This is the rotunda of the National Archives.
It houses what are called the "Charters of Freedom," our founding documents.
People come here, a million a year, to this place that really feels like a shrine.
If you're in Britain, you can go see the Crown Jewels, if you're in China, you can make a pilgrimage to the Forbidden City.
But if you want to come see the soul of America, well then you come here and you gaze upon these four pieces of parchment.
You can imagine the arguments that went into its drafting.
You can look at the language and start thinking about you know, all the different versions they talked about, and you realize that this was, to use that word, "done, in convention, by the unanimous consent of the states present."
It was done by people.
Four months, four pages-- their promise to us that if we tried to make the best of this we could last.
What did Ben Franklin say when they came out of the room with these four documents?
They said to him, "What have you done?"
He said, "Well, we've made a republic if you can keep it."
Here it is.
(Peter) Coming here makes me wonder what the Constitution will mean to kids like these when they grow up... and what these kids will mean to the Constitution.
"...establish justice, provide for the common defense..." Yes.
...this constitution for the United States of America.
You're the coolest.
(Peter) After all, it will be up to them to take responsibility for the document, and for the ideas and ideals it contains.
Bye-bye guys.
Bye.Bye.
Bye guys.
Bye.
(Peter) It'll be up to them to make this union... more perfect.
(woman) To learn more about the Constitution visit the series website... "Constitution USA" with Peter Sagal is available on DVD.
To order, please visit shopPBS.org or call... CC--Armour Captioning &TPT
