Key Constitutional Concepts
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Key Constitutional Concepts


NARRATOR: Funding for this
film has been generously provided by the Annenberg
Foundation Trust at Sunnylands. Citizenship is
every person’s highest calling. DAN HARRIS: I’m Dan
Harris in Signers’ Hall at the National
Constitution Center in Philadelphia. We hardly
think of it this way today, but to these men,
this was an experiment, starting a new type of
government for a new country they were going to
call the United States of America. Not only was
there no guarantee that it would work, but history
pretty much told them it wouldn’t. In their
day, nations were run by rulers, not rules. Kings
and emperors told everyone else what to do. A
government run by the people themselves,
that was an old idea, but it had never quite
worked. People fight with each other; it’s human
nature. People are messy, they have their own
interests and they disagree. All rulers knew
that it took armies to keep the people
under control, but these men believed
it took a constitution, that they could create
institutions that would let conflict
occur, deal with it, and that people would
accept the outcome. That’s what they believed, and
in the spring of 1787, it was time to deliver,
but they weren’t sure that they could. The
Constitution was written in a time of crisis. They
knew that if they failed at that moment, their
country would fail. They responded by
starting a nation, in one room, with
just a handful of ideas and a
small group of men. MS: I do solemnly swear
that I will faithfully execute the Office of President
of the United States. NARRATOR: Films like this
really kind of miss the point. MS: …protect and defend the
Constitution of the United States. NARRATOR: Oh boy, they
play right into the myth. BERKIN: A lot of the
images that we have of the Founding Fathers, come
in part from 19th century historians who
actually wrote that God handed down
the Constitution. NARRATOR: Thomas Jefferson
was a Founding Father. He was the one who wrote the
Declaration of Independence. He called the men who
wrote the Constitution demigods. So what
did that make him? ♪ MUSIC ♪ BERKIN: They’re the
closest thing we have to the Greek gods or…
or royalty and so they’ve been transformed into
larger than life figures. NARRATOR: For 200 years
we’ve written books about them, we’ve cast them in bronze,
carved them from marble. MS: Dr. Benjamin
Franklin. NARRATOR: We’ve made awful
educational films about them. MS: And you,
James Madison, our children’s children
will remember you. BERKIN: And the
average schoolchild in America is taught to
speak of these men in kind of hushed whispers. They
were all heroic figures who were going to be whisked
directly up to heaven. NARRATOR: In fact,
everyday visitors to the nation’s capital can
walk into the heart of the Rotunda, look up to the
ceiling of the dome and see a painting called “The
Apotheosis of Washington.” In other words, George
Washington becoming a god. ♪ MUSIC ♪ NARRATOR: These were
real men who faced real challenges, they knew they
weren’t gods. Gods have special powers that men
don’t. And they didn’t trust any man who wanted
the power of a god or say a king. Many of them would
blush or be embarrassed by the way we look
up to them now, or some of them
would anyway. BERKIN: We should admire
them, not because they’re super human,
not because they’re superman, but because
they’re ordinary people. NARRATOR: That’s what
makes the real story so much more remarkable
than the myth. Okay, for the record, Ben
Franklin thought the Constitution
would last, oh, about 10 years. Franklin
and some of these men were actually brilliant, but
they really didn’t know what they were getting
themselves into. The point was, they were trying
to get out of a long, seemingly endless cycle
of conflict. Let’s go back for a minute. I’ll make
this quick. One hundred fifty years before
the Constitution, we were separate
colonies of Britain, we were ruled as the king
saw fit. He could throw us in jail, make us
pay unfair taxes, take our land, his word
was the last word. It caused some conflict. In
1776 Thomas Jefferson and 55 other men risked
their lives by signing the Declaration of
Independence, telling Britain and the
world that we weren’t going to obey the king
anymore. We fought a war to win our independence
and started our own government in 1781, the
Articles of Confederation. And the Articles of
Confederation turned out to be a recipe for
more conflict. MONK: You know the
first Constitution of the United States
was a failure. ISAACSON: The Articles of
Confederation really did not bind the new states
together into one nation. NARRATOR: The Articles
of Confederation were actually called a League of
Friendship. What kind of a nation calls itself a
League of Friendship? BOIES: Remember that
the colonists were revolting against England, they
were revolting against a monarchy, and they were
revolting against a parliament that had total power. What
they wanted to do was to prevent anybody or
any group of people, any institution
in this country, from having that kind of
power over their lives. STONE: You had groups of
people who had existed for a fairly long time and identified
themselves as Virginians or as people from Maryland or
people from Massachusetts. MS: North Carolina, where
the wonders never cease. VOCALISTS:
New York… MS: Delaware, it’s
good being first. BERKIN: They want
what later would be called states’ rights,
states’ sovereignty. MONK: The states
saw themselves as essentially sovereign
nations that had kind of agreed to kind
of maybe work together, maybe
kind of sort of. BERKIN: And things
fall apart so quickly that it’s really
kind of dazzling. YOO: One of the biggest,
if not the biggest, problems is that there
was no power of taxation. NARRATOR: Under the
Articles of Confederation, the national
government was flat broke. It couldn’t afford to
protect ships on the Atlantic from pirates
and it couldn’t protect citizens on the
western borders either. Each state
printed its own money. BERKIN: Even more
dramatically, New York State, which has the great Port of
New York City, is charging Connecticut and New Jersey
an arm and a leg for everything that comes
into their port. And so Connecticut and New Jersey
are meeting to plan a united military
attack on New York. NARRATOR: But the
breaking point for the Articles of Confederation
came when veterans of the Revolutionary
War, mostly farmers, staged a revolt against
the State of Massachusetts, and in this scene, against the
basic principles of acting. MS: We’re here to get justice.
MS: That’s right. MS: And Daniel
Shays, you are in contempt of court. I will
see you jailed for this. MS: Oh no, no. You’re
not going to judge me or any other man in this
county. You’ll adjourn this court or we’ll
clear you out now… BERKIN: Shays’ Rebellion
sends fear through every state. What it represents
is a breakdown of law and order. And all their
rhetoric is the rhetoric of the Revolution. This is
a tyrannical government, this is a government
that’s not looking out for the interests of the
people. When Washington hears about
Shays’ Rebellion, I think for him this is
the low point of the whole
Confederation Period. MS: General Washington,
another such outbreak as this Massachusetts affair
and we shall have anarchy. MONK: He said it’s a
triumph for our enemies that we are incapable of
governing ourselves. BERKIN: We can’t even
win the loyalty of our own citizens.
Something has to be done. NARRATOR: But what? Everyone
knew this government needed to be fixed, but the
big question was, how? NARRATOR: A convention
was called in Philadelphia to fix the
Articles of Confederation. But just look
around this room. These were the people who
were coming to fix this mess? Just months before,
this state was going to war with this state.
Delaware came in saying they’d leave before they
gave up any power. This delegation was arguing
with itself over whether or not to commit to
a stronger central government. And him? He was
drunk. Only James Madison of Virginia came with a
clear plan. Madison was a brilliant strategist, but
he wasn’t popular enough to get all these
men to follow him. BERKIN: Poor James Madison,
he arrives, nobody even notices him. They think
he’s a minister. He wakes up one morning and he
hears church bells ringing and crowds cheering
and he knows right away, he says,
Washington has arrived. ♪ MUSIC ♪ MS: George
Washington was the indispensable person
when it came to 1787. BERKIN: He’s the only
person everyone in America has heard of. There’s no CNN,
there’s no nightly news. YOO: He was famous
throughout the world and he defeated the most
powerful nation in the world, you know, Great Britain.
You know the French hadn’t been able to do it in
hundreds of years and then instead of seizing power,
he laid down power and went home and was a farmer
and this was incredible. He could be trusted
because people knew he was not interested in wielding or
gaining any kind of absolute power, that he had the best
interests of the country at heart. NARRATOR: Washington
fought to establish a republic and here he was
less than four years after the war, trying to save it. Right
away they take care of the easy stuff. The convention
unanimously chooses Washington to
preside. After that, everything they
talked about could have brought them
big, big trouble. YOO: You know the
interesting thing about the Constitution’s drafting is
that it wasn’t authorized. Illegal is too strong a
word, but what they were doing was not
permitted under the Articles of Confederation
itself. These people had no authority under
the previous system of government to do
what they were doing. BERKIN: Not supposed
to be a constitutional convention, this is a
tweaking convention. MONK: Wasn’t supposed
to come up with a new constitution, now, it was
just supposed to amend it. BERKIN: The third day
of the convention, Edmund Randolph
gets up and he says, Virginia thinks we should
throw out the Articles of Confederation and write a
new Constitution. So on the third day of a
convention called to make recommendations to
amend the Articles of Confederation, they
overthrow the government. ♪ MUSIC ♪ NARRATOR: This was it,
the moment of truth. These 55 men were either
going to save the nation or they had just destroyed
it. There was no turning back. They decided in
order to accomplish this mission, they had
to meet in secret. MS: They really wanted to have
an open and candid debate. BERKIN: They take a vow of
secrecy, you’re not supposed to say anything to anybody
and they all obey the rule. NARRATOR: And they pay
for it, every day, they literally locked
themselves in this room. You’ve seen the
paintings, long hair, wigs, the Northerners
are wearing wool. BERKIN: Philadelphia is
having a bad summer. YOO: I grew up
in Philadelphia and it is oppressively
hot and humid. BERKIN: It pours every
day and there is an invasion of great big
bottleneck flies and so people can’t even
open their shutters. YOO: And they’re in a cooped-up
room with no air conditioning. NARRATOR: The group
buys Madison’s idea and it basically
goes like this. A central government with
three separate branches, a legislature, which was
most important to these men, an executive to
do what the legislature wanted, and a
judiciary. And here’s why: The three branches of
government should keep each other in check,
no one branch should become too powerful,
kind of like a giant, very elaborate
game of paper, scissors, rock. See, look,
the president can’t go to war unless Congress
declares it. Congress can’t create a law unless
the president signs it. A president can’t appoint
a judge unless Congress confirms that nominee and
then the judge would serve for life and could one
day strike down a law that both the president
and Congress passed, if that law violated the
Constitution. Sounds difficult, a
little complicated? Good, that’s just the
way they wanted it. CALABRESI: The thing you
notice most about the Constitution in reading
it, is the keen awareness that concentrated
power is dangerous. It is almost as if … the
whole thing was written to make making
laws difficult. YOO: They expected
legislators and congressmen to try to expand their
powers and expected the president to try
to expand his powers, expected the courts to try to
expand their jurisdiction but by placing them
in tension with each other, they thought
they would block each other’s overly
ambitious actions. BERKIN: These
men are anxious, each and every one of them
believes that powerful governments are dangerous.
So they want to create something that in a sense
they’re afraid of and the double irony of this is,
that the very people they don’t trust with power is
themselves because they are going to be the leaders
of that government. NARRATOR: They start with
the executive branch and can’t decide if it should
be a committee or just an individual. All that power
might be too tempting for one person. He might try
to take over and become a dictator, a king or worse.
And they can’t decide how the president should be
elected. Should the people vote for him directly or
should each state choose him? Near the end of
the Convention someone comes up with a compromise
called the Electoral College. In the Electoral College,
voters choose a slate of representatives who then…
never mind, ask your teacher. BERKIN: They move on
to the discussion of Congress and this is
when it gets serious. STONE: The larger states
wanted representation based upon population and
the smaller states wanted equal
representation by state. NARRATOR: Okay, proportional
representation. Let’s say Delaware’s got
one million people and Virginia’s got 10 million. Suppose we give each state a vote in Congress for
each million. Virginia’s fat and happy with 10
votes, Delaware’s got one; bigger states rule.
They would have a much bigger voice in
national government. Madison wanted this
because he thought a true national government
should be elected by the people and that
states, well, we tried that with the Articles of
Confederation, remember? MS: Oh no, you’re
not going to judge me or any other man
in this county. BERKIN: The people from the
small states go berserk. MS: Maryland will never
give up her freedom. MS: Nor will Connecticut, Mr.
Martin. My state will never stand by to see Pennsylvania
and Virginia rule the country. MS: Neither will
New Jersey. ISAACSON: They were
so torn apart… MS:
No, no. ISAACSON:
…that some of the representatives,
including one of the ones from Delaware, threatened
to walk out and even threatened that some of
the smaller states would make alliances with
foreign countries. BERKIN: But it’s not
just large state, small state, this is
the moment of truth: Are the states
going to have, as states, a house, a… a
platform in the government where their sovereignty
is recognized or is this government going to
be a government of the individual people? Is it
going to be the United STATES of America or the
UNITED States of America? NARRATOR: Even the men
who believed in a strong national government
knew they had to give in a little, right now, if this
had any chance of working. BERKIN: One of the
supporters of the nationalist camp comes up
to James Madison and says, corners him and says,
if you don’t compromise, the small states are
going to walk out of this Convention and you
will have destroyed the chance for the
country to survive. NARRATOR: This was it, the
whole thing was on the line. So the next day
Connecticut’s Roger Sherman came back with the
idea of a bicameral legislature, which
is a fancy way of saying, two houses
in one Congress. So now, to go along
with the House of Representatives, there
would be a Senate. The House would
have proportional representation
based on population, that made the nationalists
happy. And the Senate was the compromise,
there each state, big and small, would have
two representatives. So Delaware would get the
same number of votes in the Senate as Virginia,
this made the Federalists happy. This is all in
Article I, and if you look closely, you’ll see
another big compromise, right here, three-fifths
of all other persons. MONK: Probably the
biggest consideration regarding slavery in
the Constitution is what’s known as the
Three-Fifths Compromise. NARRATOR: “Other persons”
was a code that everyone in the room understood. It
meant slaves and slaves were counted as three-fifths of
a person. To the framers this wasn’t a direct
statement about a person’s value as a human
being, equality, the end of slavery,
they weren’t there to talk about that. This was
all about the power some states would have in the
new Congress. If slaves were counted, even
though they were slaves, then Southern states would
get more representatives in the House. Northerners
didn’t want slaves to count as whole persons
because then the Southern states would
have more power. FONER: Half or more of
the population in many of those Southern states was
slaves, so it means the more slaves a state has, the
more political power it has. NARRATOR: So in
Philadelphia, the founders decided that almost
everyone in the population would be
counted, but not everyone counted would have rights
or could even vote. BERKIN: The framers of the
Constitution, the leaders of the Revolution, had a very
limited idea about who was entitled to political rights.
They did not believe in democracy, they did not
believe that every man should have the vote. They
certainly didn’t believe that women should have
the vote. They didn’t believe that African Americans
should have the vote. To have a vote in the 18th
century, you had to have what they called a stake
in society, that is, you had to have
property because it was their theory that you would
make irresponsible decisions if you didn’t have
anything to lose. YOO: They didn’t get things,
some things right. I mean clearly we now realize if
they and… and many framers then realized
that slavery was evil, it should not be protected
by our legal system. At the same time it showed,
that they had to make compromises to get the
Constitution through. If the Constitution actually
prohibited slavery in 1788, in 1789, it probably
never would have been ratified by the
Southern states, so we would not have had
a Constitution at all. So you can also see sort of
the practical aspect of people willing to
make compromises, sometimes against the
principles they believed in. STONE: They were making it
up as they went along and they were making compromises
for purely political reasons to get an agreement.
They didn’t believe for a moment it was an
ideal Constitution. It was simply the best one they could
get in the circumstances. NARRATOR: The story of
the Constitution is too often told
without acknowledging its problems. Not all of
the compromises made in Philadelphia worked out.
As brilliant as it was, the Constitution written
in 1787 left slavery and state sovereignty unresolved
and 70 years later, these compromises led to the
greatest constitutional crisis the United States has
ever seen, the Civil War. MONK: To me it’s
important to realize that the
Constitution is not perfect and it was never
intended to be perfect. The framers themselves did
not think it was perfect. NARRATOR: So they made
it possible to change it, that’s why they
wrote Article V, amendments. They knew they
hadn’t solved every issue and there was one problem
with their Constitution they’d have to fix almost
as soon as the ink dried. MONK: Why didn’t
the framers at the Philadelphia convention
add a Bill of Rights to the Constitution? To us,
it would seem obvious, your freedom of speech,
freedom of religion, freedom of the press,
we want it in there. BERKIN: You have to
understand every state had a Bill of Rights, virtually
every state had very carefully spelled out Bill of
Rights. The guys wanted to go home, that’s just the
plain fact of it. And when someone said, should we
have a Bill of Rights, everyone moaned because
they thought by the time we all argue over what
should be in it and how many clauses, we’ll
be here another month. NARRATOR: The Bill of
Rights are the first 10 Amendments and they
weren’t part of the original Constitution. The
first Congress wrote the Bill of Rights and it was
ratified two years later. ♪ MUSIC ♪ Finally,
it was time to go home. They had created a
Constitution that would last beyond their
wildest dreams. STONE: Quite certain not
a one of them would have imagined that in the early
part of the 21st century, we would still be
operating under their Constitution. It would be
as if you started a club with a bunch of friends in
2001 and someone said to you, what’s the probability
it’ll be in existence in 2225? NARRATOR: And so we have
the legends, the coins, the statues, they’re all part
of the myth now, but their words tell the better story.
They weren’t gods and they knew they weren’t perfect,
but they were pretty good. BERKIN: These are men who
are remarkable largely because they were ordinary human
beings, facing a major crisis, who did something that turned
out really quite well. MS: They were in a new
world, they were away from all the old forms of government.
What they were saying is, we have an opportunity
to create the right kind of government, what
should that government be? BERKIN: They created
a framework that is extraordinary in that it
allows us to set in motion the kind of world we want
to create for ourselves. ♪ MUSIC ♪ NARRATOR: Each
year we have our parades and our fireworks on July
4th because our founding principles were first
announced to the world with the Declaration
of Independence. But it’s the
Constitution that allows us to live by those
principles every day. ♪ MUSIC ♪ DAN HARRIS: A
poor man interprets the Constitution and
he changes America, it sounds like a fairy
tale but it’s actually true. I’m here at the
National Constitution Center, a place where
you can learn about the framers, the Constitution,
and its core values. This is the story of one poor
man who didn’t know much about American history,
but he thought he’d been treated unfairly and he
knew just enough about the Constitution to do
something about it. Now you may think watching
this today that your voice can’t be heard or
doesn’t matter, but Clarence Earl
Gideon changed the way we administer justice
in this country and he did it from
a prison cell. ♪ MUSIC ♪ NARRATOR: A turnoff
route 98 in Bay Harbor, Florida, is not a
trip down memory lane. Memories here don’t
last as long as the smoke from the local paper
mill. Take this empty lot, today you’d never know it,
but history was made here and the pool hall is gone
and so are the people. But the principle they left
is still standing. This is Clarence Earl Gideon,
he wasn’t much at pool and he was almost
as bad at life. ♪ MUSIC ♪ LEWIS: He was a very
unlikely Constitutional hero, but you know,
the cases that come to the Court don’t
usually come from the winners in society, they
come from the losers. LEVINGSTON: Clarence Gideon
was poor, he had been involved in the criminal
justice system ever since he was a kid. He had been
getting in trouble… NARRATOR: Trouble
seemed to find Gideon, like on June 3rd, 1961
when he was arrested for a crime that amounted
to pocket change, literally, small change
had gone missing from this cigarette machine and
from this juke box, maybe five to 60 dollars
total in the Bay Harbor Pool Room on the
edge of Panama City, Florida. That’s
the pool hall there, on the bottom. Some
wine, some beer and a few bottles of Coca-Cola
were also gone. A witness claimed he saw
Gideon that night, his pockets bulging with
change. For the change and the stolen drinks,
Gideon found himself facing some very
serious time in prison. NEWSREEL: CBS Reports, The
Poor Man and the Law. The case of Clarence Earl
Gideon set the stage for a great turning point in
American jurisprudence. The… NARRATOR: Look at
this. The Gideon case became such a big deal
that CBS News did a prime time documentary about it,
using the actual people to re-enact the courtroom
scene word for word. An educational
film did the same thing a little bit
later, but in color. MS: The man with a deep
sense of his legal rights. NARRATOR: There’s a very
famous book about it, written by this man, Anthony Lewis,
called “Gideon’s Trumpet.” And they made the book into a
movie, starring Henry Fonda. MS: I’m entitled
to a lawyer. MS: The next case on the
docket is the case of the State of Florida vs.
Clarence Earl Gideon. What says the state, are
you ready for trial? MS: The state is
ready, your honor. MS: What says the defendant,
are you ready for trial? CLARENCE EARL GIDEON: I’m
not ready, your honor. NARRATOR: Gideon was flat
broke. So broke he had spent the last two months
here, in the county jail, because he couldn’t
even afford bail. There was no way he could
pay for a lawyer. GIDEON: I have
no counsel. NARRATOR: Wait, wait,
wait, stop. Rewind. Okay. I know this is black-and-white
film and bad acting, but this is a turning
point in our story. Sorry for interrupting, but I
didn’t want you to miss it. GIDEON: I have
no counsel. JUDGE: Why do you not
have counsel? You know that your case was
set for trial today. GIDEON: Your honor, I
request this court to appoint counsel to
represent me in this trial. JUDGE: I’m sorry, but I will
have to deny your request to appoint counsel to
defend you in this case. NARRATOR: But Gideon
was a stubborn old man, who thought
this was unfair. GIDEON: The United States
Supreme Court says I am entitled to be
represented by counsel. LEWIS: He had this obsession,
that he was entitled to a lawyer. He was wrong, of
course. Under the laws that stood before he began
the case, he was wrong. NARRATOR: Well, half wrong.
Here’s how it works. We actually live under
two sets of laws: federal and state. Most crimes and
small infractions like driving through a stop sign
fall under state laws. LEWIS: Criminal law is mostly
state law. Ninety percent of criminal cases in this
country today are state cases. NARRATOR: Tax evasion,
smuggling, interstate crime, they will land
you in Federal Court. LEWIS: In federal cases, the
court had laid down the rule that all defendants
were entitled to lawyers. NARRATOR: Gideon was being
tried by the State of Florida. So in 1961
in the State Court, he was not automatically
entitled to a lawyer. By asking the Court to
appoint a lawyer, Gideon thought he was
asserting a right written into the 6th Amendment:
the right to counsel. STEVENSON: This right is
as basic as any right in the American Constitution,
because the threat that is presented by arrest
and imprisonment, and sometimes
even execution, is as great as any
threat that the Constitution allows the
government to have. BOIES: You need a lawyer
who will go into court for you, and argue on your
behalf. Who will find out the facts and
present your case. LEVINGSTON: You really
feel the power of the state bearing down on
you when you’re in a criminal proceeding. You
have a judge sitting on a bench. You have a
prosecutor and a prosecution table. And the defense
lawyer is really the only person fit into the process
to stand there with the defendant, to make sure
that they are not going through this very scary,
intimidating process alone. KRASH: We are committed in
our country to an adversary system, by which we mean
that each side is entitled to have a competent lawyer
present its position. LEVINGSTON: You’ll see in
a good adversarial process that when the prosecution
does present the case, that the defense lawyer’s
role is to come in and challenge that case.
And our founding fathers believed that through that
kind of push and pull of an adversarial process,
the truth would somehow emerge and a jury
would be left with enough information to decide
what really happened. NARRATOR: But Clarence Earl
Gideon had to defend himself, because the State of
Florida had denied him a lawyer. The entire
trial lasted only a day, and the jury found him
guilty before it was time for dinner. He was
sentenced to the maximum, five years in prison. For
thousands of cases just like this, the
story ends here, walking into prison and
doing the time. But this time Gideon went to prison
convinced he didn’t belong there. He still
said he was innocent, and that without a lawyer,
the State of Florida didn’t give him a fair
trial. So he did something most people would
attribute to insanity or fairy tales.
With a pencil, on a prison notepad,
Clarence Earl Gideon wrote a petition to the Supreme
Court of the United States. LEWIS: The Supreme
Court has a category of cases it calls “in forma
pauperis” cases. That means cases brought to the
Court by people who are too poor to pay
the usual fees, and too poor to print
up their documents. Poor people can file just
with a typewritten or even handwritten document, and
Gideon’s was handwritten. It was a letter on lined
prison stationery. You couldn’t imagine a
simpler, more elementary way of getting to the
highest Court in the land. NARRATOR: But why
would the Supreme Court decide to hear
the case of a poor man with no lawyer who was
already in prison? Because the Constitution allows
even the poorest citizens to be heard, and to have
an impact on the rest of us. Lightning strikes from
the ground up. It may have been sparked by Gideon,
but there on the Court was Justice Hugo Black,
ready to catch it. KRASH: He was the most
influential member of the Supreme Court during his
time. Black felt that people should not
be disadvantaged in getting justice
because they are poor. CALABRESI: As a judge, his
bible was the Constitution. JUSTICE BLACK: We had the
best Constitution in the world and if we would follow
it, it would be alright. CALABRESI: He always kept
the Constitution in his pocket and I, as most
of his former clerks, keep the Constitution
so if when there’s a question, you
know you look to the bible, you look
to the language. NARRATOR: Alabama
Senator Hugo Black was President Roosevelt’s first
nominee to the Supreme Court. It was big news in 1937. And
for over 30 years on the Supreme Court, from FDR through
the Civil Rights Movement, on into the Nixon
Administration, Hugo Black stood for the equality of
the ordinary citizen. KRASH: Black had been
the champion on the Court, for the principle
that the various provisions of the Bill of Rights should
be applied to the states. JUSTICE BLACK: The passage
of the 14th Amendment made the Bill of Rights
applicable to the states. NARRATOR: Okay, here’s what
this means. The Bill of Rights was originally applied only
to Congress and the federal government, also applies
to the states because the 14th Amendment says,
states can’t deny a citizen’s fundamental
rights. The 14th Amendment, passed in the
bitter aftermath of the Civil War, was virtually
neglected by the courts until Hugo Black argued
that it could no longer be ignored. Every
citizen, rich or poor, no matter what
state they live in, said Black, is entitled
to the same fundamental rights. But when Black
arrived at the Supreme Court, the Court didn’t
see things his way. The majority of the
Justices, these men, believed states should
have more independence from the federal
government. Early in Black’s tenure on the
Court, a case would test Black’s interpretation of
the 14th Amendment. That case was Betts vs. Brady and
Black was on the losing side. KRASH: And Justice Black
dissented in that case, it’s a famous dissent.
What he said was in substance, you can’t have a
fair trial without a lawyer. NARRATOR: So in
the Betts case, Black writes, the
6th Amendment says, citizens have a
right to a lawyer, and the 14th
Amendment says, states can’t
deny that right, that a state can’t deny
people a lawyer because they are too poor to pay
for one. He was in the minority, six to three.
The Court decided that the states did not have to
give everyone a lawyer, only those who were thought to
have special circumstances. KRASH: Then there
had been one case after another in which
the Supreme Court had been defining what was meant
by special circumstances. LEWIS: And what
happened was that more and more defendants and
their lawyers, tried to show the Court that they,
their client was entitled to a lawyer because
they suffered from some special disability.
The rule that you don’t need a lawyer was being
eaten up by the exceptions. NARRATOR: And over the
course of two decades, it seemed that
each exception proved Black right
in the Betts case. LEWIS: And he seethed
for 20 years, he really thought Betts and
Brady was decided the wrong way, he dissented
and he meant it and he kept saying it for 20
years until it came time to decide Gideon
against Wainwright. GIDEON: Mail
call times… NARRATOR: Now that the
Gideon case was before the Supreme Court, Gideon
really needed a lawyer so the Supreme Court
appointed Abe Fortas. ♪ MUSIC ♪ LEWIS: Clarence
Earl Gideon who had no lawyer when he was
tried in Florida, had appointed to be his
lawyer in the Supreme Court, someone who was
probably one of the half-dozen sharpest lawyers in
the United States. KAMISAR: You know
they don’t appoint… the most powerful lawyer
in the United States to represent somebody
unless they want a deluxe performance and he wanted
to win nine-nothing. NARRATOR: Abe Fortas
knew that nine Justices rarely all
agree, but when they do, a unanimous decision sends
a message to everyone that this is a principle that’s
here to stay. That’s something lawyers like
to call, “establish the principle.” Abe Krash knows
a thing or two about that. KRASH: I was his field general
so to speak, he really set out from the beginning to
establish the principle. FORTAS: That every man, the
rich, the poor, and the poor as well as the rich, was entitled
to the benefit of counsel. KRASH: And that
principle was very much what drove us as we
worked on the case. NARRATOR: On the other side of
the argument was Bruce Jacob, Florida’s young assistant
attorney general. And Jacob’s team was,
well, Jacob and his wife. JACOB: When I was working on
the Gideon brief, my wife and I would drive up here to
Tallahassee, to this library every weekend or almost every
weekend and do research here. LEWIS: It was all on his own,
he didn’t have a big law firm. He had nobody else from the
attorney general’s office. JACOB: I gave it
everything I had in terms of time and energy and
work because I’m a lawyer, that’s what lawyers do.
Lawyers, when a lawyer takes a case, a lawyer…
puts his heart into it. NARRATOR: Of course the irony
here is that Jacob was doing all this work to argue
against a person’s guaranteed right to a lawyer. He
took that argument and his inexperience into the Supreme
Court in January 1963. JACOB: At the time
of the argument, I’d never even seen
the Supreme Court. LEWIS: He was
really outgunned. JACOB: I felt like I was
caught in a crossfire because the Justice over here would
ask a question and… MS: There were nine
people asking questions. JACOB: And one
Justice would ask a question and then
before I’d answer that question, someone else
would ask a question. And then maybe a third person
would ask a question. LEWIS: Bruce Jacob
was interrupted 92 times by questions from
the Supreme Court. JACOB: They came so fast, it was a
brutal experience, it really was. KAMISAR: The irony is that
Florida didn’t think that… indigent defendants
needed lawyers and they didn’t seem to think that they
needed many lawyers either. JACOB: We argued essentially
the reasoning that was… that was used in the
decision of Betts vs. Brady by the Supreme Court
back in 1941 or 1942. NARRATOR: Jacob took the
traditional states’ rights or Federalist position that states
should be able to decide for themselves who does
or doesn’t get a lawyer, without federal
interference. Fortas saw this argument coming
and argued that because of the special
circumstances clause in Betts vs. Brady, federal
courts were forced to intervene in states’
cases. Jacob argued that if the Court sided
with Fortas, it might force the states to free
thousands of other inmates who had been convicted
without having a lawyer. JACOB: The entire country
was in danger of having a lot of hardened criminals
turned loose on society. FORTAS: But that
cannot deter us from doing justice in
the individual case. NARRATOR: Fortas argued
in effect that many of those people were sent to
prison just like Gideon and that made the principle here
even more important. That the 14th Amendment made it
clear that states had to abide by the fundamental
rights laid out by the Bill of Rights including the 6th
Amendment’s right to counsel. FORTAS: The time had
certainly come when this basic principle of justice
had to be established. NARRATOR: On the morning of
March 18th the decision was announced from the bench
of the Supreme Court. LEWIS: Chief Justice Warren
turned to Justice Black and said, like this, just
nodded, and Justice Black said, I have for announcement
the decision and opinion of the Court,
Gideon against Wainwright, here was Justice Black’s
vindication for 20 years of dissent from Betts
against Brady. He said, we were wrong when we
decided Betts against Brady, and now we’re
finally making it right. NARRATOR: For Hugo
Black the vindication was complete. Not only did
his belief in the 14th Amendment carry the day,
but largely because of Black the Court
decided in Gideon’s favor, nine to nothing. The
decision was unanimous. KRASH: It was one of
Black’s greatest opinions, the day had arrived when
this principle for which he had fought for so
long as a Justice, was now the law
of the land. NARRATOR: The Court had
now truly established the principle, hanging
right over its front door, equal
justice under law. LEVINGSTON: When the
Supreme Court decided the Gideon case, they
really breathed life into that phrase and it
doesn’t matter if you’re rich, it doesn’t
matter if you’re poor, you get the same
equal chance. NARRATOR: Just look at
what happened to Gideon. His win at the Supreme
Court didn’t set Gideon free, but it gave him a
second trial, that gave the people who made these
films an excuse to hire Gideon’s real attorney,
Fred Turner, to play himself. TURNER: It was in
a capital case… NARRATOR: Here he’s
pretending to investigate the case, which he did. And here
he’s pretending to argue the case, which he did
much better than Gideon. He poked holes in
the state’s case, that is an awful lot of
change to jam into those pockets. And this time, with
a competent attorney… JURY:
Not guilty. JUDGE: So say you all gentlemen?
JURY: Yes sir. NARRATOR: Clarence Earl
Gideon was a free man, the man who had won a
landmark Supreme Court case went back to a modest
and honest living working odd jobs and pumping
gas, free because of the principle he’d
helped to establish. STEVENSON: When I go
to the United States Supreme Court and I see
where it reads, equal justice under law, I’m very
inspired by that. I’m very comforted by that. But
I’m also provoked by that because I know that we
don’t have equal justice under law. I know that even
now, even after Gideon, lots of poor people are
treated unfairly. I see it as an aspiration,
but I don’t see it as something we’ve
realized yet. NARRATOR: It takes
more than one person to turn a
principle into a common practice. But the value
of that right is that it’s there, written into
the Constitution and established as a goal for
society to reach for and to live up to.
People will fall short, rights can be
ignored or even trampled, but that’s why it’s
written down so that even a stubborn old man in
prison can protect himself with nothing more than a
pencil and some knowledge. STEVENSON: If you
know your rights, you can protect your
rights. If you don’t know your rights, you can’t.
They’ll always be there if we protect them, if
we fight for them, if we make sure they’re
not taken away. That’s the essence of the
Gideon story, he understood he had a
right and it was being taken away from him and
he fought to get it back. ♪ MUSIC ♪ DAN HARRIS: Paper, scissors,
rock, you know the game, someone wins, someone
loses and you keep on playing. You can think of
the federal government’s separation of powers as an
elaborate game of paper, scissors, rock,
you have Congress, the President, and the
Courts. Only this is obviously not a game,
the stakes are very high, virtually every President
has been frustrated by a Congress that overrides a
veto or by a Supreme Court ruling that wasn’t in his
favor. President Harry S. Truman is a good example.
President Truman is credited with a long
list of extraordinary accomplishments. He
oversaw the end of World War II, the rebuilding
of Europe and the desegregation of our Armed
Forces. But even Truman came up against the limits
of presidential power in a confrontation with the
Supreme Court. He later said whenever you
put a man on the Supreme Court, he ceases
to be your friend. NARRATOR: So let’s take a
second to actually look at the document. Four sheets,
less than 5,000 words, about the same length as
a story in a magazine. Article I, uh huh,
Congress makes the law. Article II, hmm, the
President sees that the law is carried
out. And Article III, the Judiciary determines
what’s legal. The separation of power seems so simple
on paper, but the framers wrote it for real life
and they knew it could get ugly. ♪ MUSIC ♪ NARRATOR: Who’s got the
power? The framers knew this at some point, everyone
wants it and they were most afraid of men who would
become President and then try to behave like a king.
This cartoon is not actually a king, it’s President Andrew
Jackson after he had a fight with Congress. If
any one branch tries to get too much power, the
framers fixed it so that other branches could bring
it into balance. This is a story about a
President, Harry Truman, and the checks and
balances on power, but it starts with the
President that came before him. This is President
Franklin Delano Roosevelt, FDR, no modern
President has ever been as powerful. FDR was
elected four times. ♪ MUSIC ♪ NARRATOR: He brought the
country through the Great Depression and was
Commander in Chief during World War II and just as
he was about to win the war, at the very height of
his powers, he died. Leaving all that power in
the hands of Harry Truman. Truman had been a minor
Senator from Missouri when party leaders
persuaded Roosevelt to take him on as
Vice President. His job was pretty much to stay
out of Roosevelt’s way. MARCUS: I don’t think anybody
expected very much from him. MINOW: It was a question
mark, we… we really didn’t know that much
about President Truman. CALABRESI: You get
as President this funny little man who
turns out to be an extraordinarily strong
person who takes over. NARRATOR: Truman
was the very first President to be sworn
in during a war. NEWSREEL: Vice President
Harry S. Truman takes the oath of office
as the President. NARRATOR: He was actually
sworn in at 7:09 PM Eastern War Time, that’s
what they called it. YOO: He really does
come to the presidency at the… perhaps the
height of its powers. NARRATOR: And he knew it,
but he wasn’t afraid of the responsibility that comes
with power. He put a sign on his desk that read, “the buck
stops here.” He would call the shots. Truman oversaw
the German surrender to end the fighting in
Europe, then for better or worse, he made a decision
that only a President could make, President
Truman dropped the atomic bomb on Japan. Only four
months in office and President Truman had put
an end to World War II. He was as powerful as any
President could be. YOO: Certainly in wartime the
President’s powers expand. JENKINS: I think both the
Supreme Court and ordinary Americans would
say that yes, the President, we’ll give
him a greater leeway in a time of war because
things need to get done. NARRATOR: But when
the war is over, a peacetime President
has to keep fighting, if he wants to hold onto
some of that power. And his first big fight
was with Congress. NEWSREEL: Washington
is under a virtual state of siege during
the closing hours of the Taft-Hartley
Labor Bill fight. NARRATOR: In 1947, over
President Truman’s strong objections, Congress passed
the Taft-Hartley Law as a way to resolve labor disputes.
Truman called it a slave labor bill because it restricted
a union’s right to strike. NEWSREEL: Labor will never
become reconciled to this law. NARRATOR: It also put some
restrictions on the President, even though Congress had
considered giving him the power to seize an
industry in an emergency, it decided not to give
the President that power. Truman vetoed the bill,
but Congress sensed that Truman was no Roosevelt so it
fought back and made Taft-Hartley law without him. It let Hartley
gloat just a little bit. HARTLEY: We in the
Congress are sent here to do the greatest
good for the greatest number and that is
what we have done in the enactment of
the Taft-Hartley Bill. NARRATOR: And Congress
kept chipping away at Truman’s power. When Korea
erupted into war with the help of the
Communist Chinese, Truman committed
American troops, it was back to war for
Truman, back to being a wartime President,
except for one thing. STONE: There was never a
declaration of war, Truman initiated that military
conflict without seeking any Congressional
authorization and certainly without seeking a
declaration of war. NARRATOR: Article II calls
him the Commander in Chief, but it doesn’t give
the President the power to officially go to war, he’s
got to go through Congress to do that. That’s
because Article I of the Constitution gives the
power to declare war to Congress. Truman
did get money from Congress for
the Korean… STONE: Conflict.
NARRATOR: Yes, we call it a conflict
not a war because Congress never made the
war official, that was a real blow
to Truman. And when the fighting went bad, he
lost more than Congress, he lost a lot of popular
support too. He was taking a beating in the polls and
whenever a President loses these things, he
loses power. Okay, I want to stop for a
second to point something out. These old films
you’ve been watching, they’re called newsreels.
Back in the 1940s and ’50s, television was brand
new. People didn’t really watch the news on TV, they
went to the movies. And before the main
feature, they got their news from these. They
were loud, corny… NEWSREEL: Ride ’em chimperoo.
NARRATOR: And by March 1952, Harry Truman’s news was that
he wouldn’t seek re-election. PRESIDENT TRUMAN: I shall not be
a candidate for re-election. NARRATOR: He was a lame duck,
but he was still the President. So when the nation faced
an almost certain steel strike and Truman’s
power was waning, Truman was still behaving
like the wartime President he had been when
he was sworn in, not a lame duck whose
power had been chipped away by Congress. Truman
said the President has the power to keep a country
from going to hell. In fact, at that moment,
steel was being produced largely because of
President Truman. For months he had asked the
unions to hold off on a strike, hoping to find
a settlement. To invoke Taft-Hartley now and make
them wait another 80 days, Truman thought, wouldn’t
be fair. But the nation needed steel and a
settlement right now. The President would defy
Congress by taking control of the situation and
refusing to invoke Taft-Hartley. And he would
make his case in a way no President had
ever done before, but every President
has done since. PRESIDENT GEORGE H.W.
BUSH: Good evening. PRESIDENT REAGAN: My
fellow Americans. PRESIDENT CARTER:
Good evening. PRESIDENT KENNEDY:
My fellow citizens. PRESIDENT CLINTON:
My fellow Americans. PRESIDENT GEORGE W.
BUSH: Good evening. NARRATOR: Truman used one of
the greatest levers of power a President has to get his
message to the people. PRESIDENT TRUMAN: My
fellow Americans, tonight our country
faces a grave danger. NARRATOR: President Truman
went on national television to announce that he would be
taking over the nation’s steel mills. The strike
was supposed to start in a little over an hour and he
wasn’t going to let that happen. PRESIDENT TRUMAN: If steel
production stops, we will have to stop making
the shells and bombs that are going directly to our
soldiers at the front in Korea. MARCUS: He gave a
very impassioned speech. PRESIDENT TRUMAN: With
American troops facing the enemy on the field of battle,
I would not be living up to my oath of office if
I failed to do whatever is required to provide
them with the weapons and the ammunition they
need for their survival. YOO: President
Truman says that steel production is
necessary to produce the munitions and weapons we
need to fight the Korean War. If you interrupt
steel production in the middle of a war, you will,
you know he essentially says you will be
losing lives on the front. PRESIDENT TRUMAN: I’m
directing the Secretary of Commerce to take
possession of the steel mills and to keep
them operating. MARCUS: He wanted a settlement
and that’s what he was about and he talked about how
we needed steel and we couldn’t afford a
strike and all of that would have been just
fine, but then he got all revved about
the steel industry. PRESIDENT TRUMAN: But
the steel industry is making very high
profits, they are raising all this
hullabaloo in an attempt to force the government to give
them a big boost in price. MARCUS: And how they
were trying to rob the government by raising prices
and rob the American people. They wanted money that they
were not entitled to. PRESIDENT TRUMAN: The
steel industry wants something special, somebody
nobody else can get. NARRATOR: By the next
morning, Charles Sawyer, the Secretary of Commerce
was the new boss of steel. The U.S. flag now flew
in front of every seized mill. The government was
officially in charge and that made
Clarence Randall really, really angry. Randall was
the head of Inland Steel and the spokesman for all
of the steel companies. Since the steel industry
negotiated one contract for all the companies,
they spoke as one. And Randall, a World War I vet
and a graduate of Harvard Law School, was
particularly steamed about Truman’s speech from
the night before. RANDALL: It is not the
President of the United States to whom I make answer. It
is Harry S. Truman, the man, who last night so
far transgressed his oath of office, so far
abused the power which is temporarily his that he must
now stand and take it. NARRATOR: Now you’re
talking about over 600,000 jobs at stake plus national
security. This was a big, big deal. And Randall
and the steel companies were powerful enough to
get equal TV time with the President.
He didn’t waste it. RANDALL: I shall not let
my deep respect for the office which he
holds to stop me from denouncing his shocking
distortions of fact. Nor shall I permit the honor
of his title to blind the American people from the
enormity of what he has done. He has seized the
steel plants of the nation. NARRATOR: But Randall
was quick to make it clear that this was not
going to be a fight over personal issues. This was a
fight about the Constitution. RANDALL: This he
has done without the slightest shadow of
legal right. No law passed by the Congress
gave him this power, he knows this and speaks
of general authority conferred upon him by the
Constitution. But I say, my friends, that the
Constitution was adopted by our forefathers to prevent
tyranny, not to create it. JENKINS: When the U.S.
President seizes private industry and, and industry
talks back, that’s kind of the quintessential Constitutional
question, what can the President do and
what can he or she not do? NARRATOR: But before a
higher court could decide the big
Constitutional issues, steel went to a
lower court just to stop Secretary Sawyer from
taking over the mills. They wanted a
preliminary injunction. JENKINS: Preliminary injunction
is essentially saying, keep things as they are
for the time being until we can figure out what
the law actually requires. NEWSREEL: In Washington,
steel company attorneys promptly seek an injunction
in Federal District Court to prevent the Executive Order
from being carried out. NARRATOR: But there
in the lower court, the President ran
into Judge David Pine who was not going to give
the President a pass just because he was the
President. Pine was born and raised in Washington,
had clerked for two attorneys general, served
in World War I and had been the District
Attorney for Washington, DC. He was no lightweight,
he knew a thing or two about the separation
of powers. And at the hearing, he was going to
make sure the President’s lawyer, Holmes Baldridge,
was clear that there were some limits to
presidential power. MARCUS: Pine would ask
him simple things about executive power like if a
government went into your home and said,
out of here, this home is mine, do
you have nowhere to go, you have no
rights? And he said, right, if the
President does this, the President has the
power to do this if he needs it which was not the
answer that the judge was looking for, it was
very simple minded and basically in a whole
series of exchanges, Holmes Baldridge made the
unfortunate statement that executive power
was unlimited. NARRATOR: President Truman
had lost his fights with Congress, he had lost popular
support and now of all things, he had lost to a
lower court judge. Pine’s decision that the
President couldn’t seize the mills was a colossal
defeat. Truman had one more chance, the Supreme
Court. But it was a good chance for Truman, he had
appointed a number of the Justices himself,
including his former attorney general, Tom
Clark and his good friend and poker pal,
the Chief Justice, Fred Benson. The case was
called Youngstown Steel vs. Sawyer because
Youngstown was the first of seven companies
suing the government and technically remember,
Commerce Secretary Sawyer, not Truman, was in
charge of the mills now. Youngstown was
a special case, so the Supreme Court would
hear it and decide it quickly. Both sides based
their arguments on their read of the Constitution.
Steel continued to argue that if neither the
Constitution nor Congress gave the President the
power to seize the mills, then the President simply
didn’t have that power. The Administration argued
that seizing the mills was an emergency use of
presidential power that the Commander in Chief
could take to avoid a national catastrophe and
when this Court full of Roosevelt and Truman
appointees handed down its decision, less than two
months after the President had seized the mills,
President Truman had lost. The decision was a
devastating blow to Truman. The Court ruled
six to three that the President did not have
the authority to seize the mills, even Justice Clark,
Truman’s former Attorney General, came down on the
other side. Justice Hugo Black wrote the majority
opinion which says that because the Constitution
does not give the President power to seize
the mills and because Congress didn’t
give him that power either, the
seizure was illegal. CALABRESI: Hugo Black, the
fundamentalist, simply said, there is no power, the President
can’t do it, end of the story. MARCUS: The President can’t
legislate, that’s not right, the Constitution doesn’t
allow it, the President has certain powers, Congress
has certain powers. JENKINS: It’s quite a
sweeping decision. NARRATOR: Five Justices
wrote concurring opinions, agreeing with
Black’s conclusion but taking slightly different
paths to get there. JENKINS: We’ve
looked back now at Justice Jackson’s opinion
as the most important one. He’s essentially saying
that there are three categories or three ways of
considering presidential action. NARRATOR: And it goes like
this, first, if the President’s actions are backed by law or
the implied authorization of Congress, the President
is at the height of his powers. He’s pretty
much in the clear to act. Second, if the President
acts but there is no law or Congress, as
they say, is silent, not with him
or against him, then the President is in
what Jackson called a “zone of twilight” where he and
Congress have found some middle ground.
It’s not ideal, more like a definite
maybe as to whether the President can act. Third,
if he acts against the will of Congress, that
is Congress has either expressly written a
law saying he can’t do something or
implied he can’t, as in the case of
Taft-Hartley where Congress chose not to
give him the power to act, then presidential power
is at its weakest. And if they have to, the Courts
can step in to stop him. Jackson applied that
measure to steel seizure. Harry Truman
had seen the heights of presidential power and now
in his last months in the White House, was feeling
its limits. The Roosevelt period of the mighty
President was over. CALABRESI: It had to stop.
If there weren’t something that stopped it, that
movement in terms of centralizing everything
in the President would be much too dangerous. And so
you find in the history of the United States,
again and again, after a tremendous growth
of presidential powers, Congress, the
Courts, the Courts, the Courts, Congress doing
things to say, enough already. STONE: Youngstown
made clear that the President of the
United States does not have the authority of
a king, even when the President’s powers are at
their height, the President is limited by the guarantees
of the Constitution. JENKINS: In some ways
the Youngstown case is remarkable that it’s even a
case, you can think of very few countries around the world,
especially at that time, where you would have a
case about whether the President of the country
could seize a private industry at a time of…
of conflict. The mere fact that this is a case that
could go through the court system, that a District
Court judge could halt the actions of a
U.S. President, and that there was
no question that the President would respect
the decision of the U.S. Supreme Court
when it came, is really a remarkable
thing and it speaks to the power of the Constitution and
the separation of powers. ♪ MUSIC ♪ DAN HARRIS: That
was just one case, but the battles caused by
the separation of powers have continued to this
day. It can be a little messy, but it’s a mess
that these men who wrote and signed the
Constitution, would be very happy to
see because it means the country is working just
the way they planned.

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