OMG WTF Does the Constitution Actually Say?: A Non-Boring Guide to How Our Democracy is Supposed to

>> Greetings from the National Archives.I’m David Ferriero, Archivist of the United States and It’s my pleasure to welcome you to today’s author talk with Ben Sheehan on his book — “OMG WTF Does the Constitution Actually Say?” A non-boring guide to how our democracy is supposed to work. Today we celebrate Constitution Day The day when the delegates the constitutional convention in 1787 signed new charter for federal government, the National Archives has a long tradition of marking this anniversary Even though we can’t be together this Constitution Day we can focus on the future In 2026, six short years from now, we will be celebrating America’s 250th, 250 years since our founding fathers signed Declaration of Independence and 1776, jeopardizing their lives, committing treason risk everything for American independence without the declaration we would not have the US Constitution this year’s Constitution day may not look like our usual celebration we can look forward to marking the 250th anniversary, of the United States as a healthier stronger and more perfect union Joining us today for a plain language explanation what is in the United State’s Constitution is Ben Sheehan, former award winning executive producer at Funny or Die Sheehan has been on a mission increase to increase voter participation since 2016, in 2018 he founded OMG WTF standing for Ohio, Michigan, Georgia, Wisconsin, Texas and Florida to teach voters about executive races during the midterm elections, that project, generated his book, “OMG WTF Does the Constitution Actually Say?” An essential primer how our government was designed to work originally from Washington, DC, Sheehan has a BA in American Studies and Political Science from Emory University and MA from New York University in Music Business, in 2018 he was named one of the entertainment industry’s next Gen 35 rising executives under 35 by the Hollywood Reporter Now, I’ll turn you on over to Ben Sheehan Thank you for joining us today >>BEN SHEEHAN: Thank you David for that kind introduction It helps to start because today is Constitution Day So, September 17th why is this Constitution Day? Well, 233 years ago today, the Constitution was signed And, I want to give a little bit of back drop to what led up to this meeting, the signing of the Constitution and, how we got this document, so, between May 25th, 1787 and September 17th, 1787 you had 55 people in a tiny room in Philadelphia in Independence Hall, it is extremely hot, there’s no AC, heavily dressed and, for less than 4 months, they’re debating about what our government is going look like And, the previous Constitution, the Articles of Confederation were sort of a loose agreement between the 13 existing states And, what happened is, that in Massachusetts there was a up rising Um, a courthouse was taken over Um, there was a rebellion earlier in 1787, it was a class rebellion it’s important to be honest about what actually led to the Constitution it was a class up rising a rebellion, anger over taxes and those working people ended up winning a lot of state legislative seats in Massachusetts a bunch of sort of the ruling elite so to speak were scared of this so they wanted to figure out a way to have a central government that protected the states, in case of domestic uprising and other security threats So they met for almost 4 months, and — what is interesting is that 39 people signed the Constitution 7 of those were immigrants I want to go through and talk about a few things, that are in the Constitution, that are particularly relevant, to where we are today And, I would like it start, with the Census, so in the first article, we are constitutionally mandated every ten years to count the population We use that count for two things One of which is to decide, how much states are going pay in taxes back in 1787 and after that, it was states paying taxes per head, so each person paid an even amount of tax So it was to decide the population to decide how much states were going to pay in tax and the other thing in the Constitution is, apportionment for the House of Representatives so the idea is, we count the population every ten years you know, every ten years some people will move outside of the state, move into the state, move around the state, so, getting a fair

population count decides how many people are in the House of Representatives So every ten years we’re counted and we reapportioned the House some states may gain representatives in the House and some states might lose representatives, and we added representatives over the years as the population grew but in 1929 Congress capped it at 435, so that’s where we are today, which is kind of wild because when the Constitution was written, it was 30,000 people per representative today, it is almost 800,000 per representative Which is many, more times the population basis than the founders thought was going to be It’s also important to talk about who was counted in the Constitution during the apportionment so, this is something that is a, a — shameful part of what I believe to be an incredible document But the founders decided a compromise and you probably heard of this compromise the 3/5ths compromise the idea was that, southern states had high populations of enslaved people and were those people going to get counted for the purpose of taxes apportionment in House? If they were, then southern states would end up paying a lot more in taxes but they would also have a lot more power in the House, because those people could not vote So, were a small number of, eligible voters going to have an out sized amount of power and representation in the House of Representatives So they took this old idea, from the Articles of Confederation was not actually part of it, but was pitched for it called the Three-Fifths Compromise, and how everyone is counted as is follows it was 3 people were counted as one People who were serving for a fixed term of labor, that person was counted as one and Native Americans that weren’t taxed were counted as zero all other persons were 3/5ths, so 60 percent of a person This would later be changed by the 14th amendment but I think it is important to understand who the Constitution was counting originally, when determining how many representatives were in the House. I think one of the most misunderstood things about the Constitution is voting I’ll start by saying, election day Election day is not specifically in the Constitution but Congress has the ability to make or alter the times, places and manner of elections for representatives and senators so, when has Congress exercised that authority? Well one way, is by establishing election day and I want to give a brief story about how election day came to be, because, it is very strange In 1845 Congress passed this law, establishing that, election day was going to be the Tuesday after the first Monday in November Now, why did they pick this day? Well, turns out at the time, a lot of people, in the country were farmers And they had a schedule they had to plant in March and they harvested in October And it was a lot of work and at the time sometimes, they had to travel along way to get to a polling place Sometimes as many as two days obviously there are no car or Lime scooters or whatever, so you had to go by horse and buggy or horseback and it could take up to 48 hours, Congress decided to not interfere with the harvesting-planting schedule and, they decided to set a day, where it would be outside of that schedule but also not too cold so people would not freeze to death as they were traveling so they picked the first Tuesday after the first Monday in November, and they picked a Tuesday, because people had church on Sunday and largely farmers markets were on Wednesday So that gave them a Monday day to travel they could vote you know maybe in the morning on Tuesday then get back for the farmer’s markets on Wednesdays and we have kept that law for 175 years even though, the vast majority of the country no longer are farmers So something to think about, that Congress has the power, in the Constitution to change by law, the day that we all vote on So they could do that tomorrow or whenever they want But they have not done it for 175 years, which is — pretty strange Who votes? Specifically? In the Constitution? So one thing that I think a lot of us don’t realize is that we don’t fundamentally have the right to vote in the Constitution In the first article, the US representatives in the House, were elected by the residents of each state and if you were allowed to vote in your state’s elections for the state House, you could then vote in its elections for the U.S. House But who were the people that were allowed to vote in state House elections? Well it was up to the state The states determined who was eligible to vote in many states they mandated that only

white male property owners could vote Um, in some states, actually free African-Americans were able to vote as early as the 1790s in my home state of Maryland was one of those 6 states, so, we often think about the 15th amendment in 1870 as granting African-Americans and former slaves the right to vote but it actually does something a little bit different I’ll get to that in a moment What about senators? Well at the time senators were actually elected by state legislators which means that, people, like us didn’t vote directly for our senators in fact it wasn’t until the 17th amendment, in 1913, that people directly elected senators and, for the same reason as the House if you could vote in your state’s House elections after 1913 you could then vote in your state’s elections for senators Another thing that we talk about is the right to vote, for president And we hear a lot about it right now because we’re in the middle of a presidential election but it turns out, that — we don’t in the Constitution fundamentally have the right to vote for president The Electoral College the structure where we determine electors who directly vote for the president and the vice president, um, has only been determined by statewide popular votes in every state since 1880 So for the first almost 100 years of the country states could their legislatures could just pick electors themselves only since 1880 has every state allowed a popular vote for President to determine electors, so — talking about the expansion of the democracy and, the power of our vote because if you think of the 3 branches of the federal government, there’s no direct elections for the federal court system For president, yeah we have a popular vote and, now every state uses that to determine electors but it is not granted to us in the Constitution that we have the right to vote directly for president and we only used to vote for members of the House which brings me to the voting rights amendments The 15th amendment, 19th, amendment 24th amendment and 26th amendment So again, in the Constitution we don’t fundamentally have the right to vote But, there are four amendments that protect our right to vote from being taken away based upon certain things So, the first one is the 15th amendment For race, color or previous condition, of servitude if you’re a U.S. citizen of the 1870’s you can’t have your right to vote if you have it, taken away because of your race And, 1920 the 19th Amendment, did the same thing but for sex, so women, if they were allowed to vote could have — their voting rights protected they could not have them taken away based on their sex, the 24th Amendment it was your ability to pay a tax, specifically a poll tax or any other tax. And then the 26th is if you’re 18 and over but because state largely determine who could vote these are the strange sort of after the fact, um, protections on voting rights being taken away but not fundamentally granting people the right to vote It just goes to show you how much power states have in determining who can vote and that the ability of people to vote, in elections is largely determined at the state level although Congress can make or alter those times places and manner Some of the stranger things I discovered when writing this book, are things like letters of mark and reprisal A letter of mark and reprisal is something that Congress had the power to do, and, what it is, is — in a new nation, you didn’t have a necessarily well stocked Navy you’re just starting out you don’t have a ton of ships don’t have a ton of people serving in the Navy, what they did is private citizens who owned ships could get a letter of mark or reprisal from Congress saying they could use the ship and act as a volunteer member of the Navy and capture or plunder enemy ships, this is something that we don’t do any more but technically we have not allowed or banned if through treaties so if Congress wanted to bring this back they could It would be very strange to have a bunch of people going around and jet skis trying to capture and plunder enemy ships, but it is 2020 so who knows Another thing I learned is, the fact that we don’t have a specific number of Judges, on the Supreme Court mandated by the Constitution Congress has the ability to change the number of Supreme Court justices whenever it wants since 1869, we have had 9 justices on the court about the, kind of like with election day, if Congress wanted they could pass a law tomorrow, to change that and up to 15 or 18 or 46 whatever they wanted

But, that number, of 9 justices is not in the Constitution and there’s something else that I found fascinating, that is not in the Constitution that is a power that we have given to the Supreme Court So, the Supreme Court doesn’t actually have the power in the Constitution to strike down laws if they think they are unconstitutional It is something called judicial review and I won’t get into too many detail there was a Supreme Court case in 1803 called Marbery versus Madison that was the first example of judicial review being used by the Supreme Court and ever since, we have just assumed that the court’s ability to strike down laws if they think they’re unconstitutional is part of the Constitution but, it isn’t So we’ve all been operating as if this is a power of the court it is not actually in our Constitution Also anybody can be a Supreme Court justice If you are watching this, and you have a pulse you are qualified to be a justice on the Supreme Court and that also, goes for Speaker of the House and president pro-tempore. In fact you don’t need to be a Senator to be the president pro-tempore of the Senate which by the way is the sort of substitute president for the Vice President The Vice President oddly enough is the only person who is both a member of the federal legislative branch as the president of the Senate and of the executive branch as the Vice President often times the Vice President is off helping the president on something so, there’s a stand-in president, the president pro-tempore in the Senate, but again that person doesn’t have any specific qualifications or requirements in the Constitution and neither does the speaker of the House that person doesn’t even need to be a representative So, if you’re watching this, and somehow you’re able to convince a majority of the Senate to vote for you as Senate president pro-tempore or the majority of the House of Representatives to speak vote for you as the speaker, congratulations you’re now both second in line for the Presidency if you’re speaker and third in line for the Presidency if you’re the Senate president pro-tempore very strange Now I want to talk about something that is, I alluded to earlier with the Three-Fifths Compromise a stain on the Constitution, and that is slavery But, the strange thing about, slavery in the Constitution is that, it is not mentioned by name, until 1865 However, in the original 7 articles, it comes up 3 times Once is the Three-Fifths Compromise, which I talked about earlier the second, is the U.S. could not withdraw from the international slave trade, until 1808, so, under president Thomas Jefferson the first instance of, first possible day that the U.S. could withdraw from the international slave trade was January 1, 1808 However this didn’t mean that, it ended the slave trade because there would still be domestic slave trade that would continue for many decades until 1865, um this was, created this cushion of 20 years where people could still participate in the international slave trade and the third thing is the Fugitive Slave Clause in the fourth article it says that people who escape from one state and end up in another state they have to be returned, to their rightful owners in the state from which they fled regardless of whether the state they fled to allows slavery it wasn’t until 1865 that the Constitution, specifically, mentioned slavery, and outlawed it, that brings me to 3 very important Amendments which are the reconstruction Amendments And the reconstruction Amendments are 1865, 1868 and 1870 and what they did, was in a five year span they gave a massive amount of new freedom and rights and protections to freed slaves For the 13th Amendment it was abolishing slavery The 14th Amendment, is it was citizenship and equal protection of the laws and the 15th Amendment was the protection on voting rights But there’s some sort of interesting loopholes and caveats that, I want to discuss One is that in the 13th Amendment, slavery is outlawed except as a punishment for a crime So that’s why today, and for many decades you have people who are incarcerated who are made to work in some states for free, as a punishment for a crime that carve-out is in the 13th Amendment The 14th Amendment is fascinating because, it is five sections, we often focus on the first section which talks about the birth right citizenship and equal protections of the laws but, the second section, believe it or not, kind of created voting rights protections

for African-Americans, freed slaves before the 15th Amendment So, what it said is that, for men, it specified men the first time, in the Constitution, that it specified men as being eligible voters men, 21 and over, who were residents of their state and U.S. citizens if they were allowed to vote, specifically that they had not committed a crime which is the loophole, if they were prevented from voting, that state would lose the population basis for the House of Representatives So, for every person who is eligible to vote, under the 14th Amendment, that wasn’t allowed to vote by their state the state would get dinged you know a lower population basis, per person But this didn’t really go far enough because states continued to disenfranchise people of color and so the 15th Amendment, in 1870 specifically states, race color or previous condition of servitude But what is interesting about the 15th Amendment, is that it says, you’re right to vote cannot be denied or abridged, so denied meaning you can’t vote, abridged meaning your vote is somehow less impactful than other votes but for many decades after that, states put obstacles in place, of people trying to vote Some of these obstacles are famous like poll taxes which the Constitution abolished in the 24th Amendment Literacy tests you were made to read part of the Constitution oddly enough if you could not read that you weren’t then allowed to vote Even things that weren’t really literacy tests like counting the bubbles in a bar of soap the Jelly beans in a jar but these were things that were permitted because states argued they weren’t denying their right to vote they weren’t lowering the impact of the vote they were obstacles put in place The ‘or other crime’ part of the 14th Amendment part is interesting because today, felony disenfranchisement which is the term for not allowing people who are either in prison or, have a felony on their record, not allowing those people to vote that comes down to the state And it is still largely a state issue there are a few states today like Iowa and Kentucky and Virginia that in their state Constitutions they ban people from voting for life, although the Governor can reinstate those voting rights, but in Maine and Vermont even if you’re incarcerated you’re still able to vote so we have a very wide spectrum again states have a ton of power when it comes to determining who in their state, can vote Which brings me to the Amendment process, itself So, I think about a conversation between Jefferson and Madison because I have these days a little bit of time on my hands and Jefferson wrote to Madison about the Amendments process, Jefferson wasn’t at the actual convention and I should take a step aside and talk about how impactful James Madison was he is on the cover of this book in writing the Constitution in fact he had more to do with the writing of the Constitution than any other single individual He is somebody we often overlook in terms of their contribution to the Constitution and in fact his original draft of the Virginia plan which is the first plan presented at the constitutional convention was largely the plan that people went off of, he took insanely detailed notes like over achiever in the front of the class writing down everything that the teacher said that’s how we know what happened because he took such incredible note. In addition to that James Madison wrote the entire Bill of Rights The first ten Amendments of the Constitution and it was partly, because some states were hesitant about ratifying the Constitution This gave a lot more power than the articles of confederation had to essential government and they were afraid it could become tyrannical, so, in part, to help get those states still a bit on the fence, to ratify the Constitution Madison went off and wrote 19 Amendments now, not all of these made it, the House, passed 17 and the Senate passed 12 so, because both houses of Congress have to pass these Amendments by a two thirds vote, 12 got proposed to the state and ten of those become the Bill of Rights these are the things we think about, that are rights as individuals protecting us from an overreaching or totalitarian or tyrannical government things like freedom of speech things like freedom of religion, freedom to peaceably assemble, freedom to, you know, petition the government for a redress of grievances, aka complain about the government to the government — things like your second Amendment rights things like, you know, prevention from unreasonable searches and seizure Um, or right to a lawyer or a right to a jury trial in a criminal case in a federal case

All these things that are our rights and individuals as the eighth Amendment protecting us from being penalized with cruel and unusual punishment these were things that solidified the — the protections and the freedoms of the individual, to prevent from totalitarian government any way so Madison had to a lot to do with the Constitution But he had this conversation by letter, with Thomas Jefferson and what Jefferson said he thought the Constitution should be changed every 19 years Because, it was like expecting a coat you had as a child to fit you as an adult in the same way that, laws and protections and regulations, are not necessarily applicable to one generation as they will be to future generations things change and the Constitution has to adapt with the times We often think of the Constitution, as something that is set in stone and it is, the supreme law of the land there’s no law higher in the United States than the Constitution It is — dictates everything that we do , it is the ultimate back stop on our structure and rules of our government But, that doesn’t mean it is not supposed to be changed and, the entirety of article 5, is about the Amendments process I want to talk a little bit about the Amendments process, because, it is very strange how we’re able to amend the Constitution And by strange I mean, difficult Back when there were 13 states, it wasn’t impossible it wasn’t crazy to get three-quarters of the states to ratify an Amendment but today, that’s 38 states Getting 38 states to agree on something But I’ll take a step back and just explain the proposal and the ratification process So, there are two-ways, to amend the Constitution in terms of proposing an Amendment The first, is that if two thirds of the House, and the Senate, send it for consideration to the states The other way is if two thirds of the states, their state legislatures call for a constitutional convention, now of all 27 Amendments, that exist for the Constitution, we have only used Congress proposing it to the states Which means, two thirds of states, calling for a convention has never happened in American history as far as the ratification process, there are two ways to ratify Amendments The first one is if 38 states, their state legislatures ratify an Amendment it gets added to the Constitution The second way is if Congress specifies that conventions, in each state, ratify an Amendment That is only happened with the 21st Amendment to repeal prohibition the others have all been state legislatures ratifying Amendments I do want to talk about specifically the 26th and 27th Amendment Because it’s really interesting who was behind the ratifications of the Amendments So the push for the 26th Amendment which grants voting rights protections to people who are 18 and up, versus, what happened in the 14th Amendment when it specified 21 and up, that was led by young people That was led by people who were 18 and over, who were being drafted to go off to war but they didn’t actually have a say in the elected leaders who were sending them off to fight And so, there was a huge protest movement and it was largely because of these young people, that Amendment was proposed and then ratified The final Amendment I want to talk about is the 27th Amendment And this is probably my favorite story, that I learned about while writing this book So, back in 1982 a student at the University of Texas named Gregory Watson wrote a paper on an Amendment he had discovered that hadn’t expired and had been ratified by some states and what the Amendment said is that, if Congress wanted to give itself a pay increase as in increase the pay for representatives and senators, it had to do it, after an election had intervened they can’t pass a law and then make more money tomorrow, election would have to come in between and then it would go into effect So he wrote this paper right And he — submitted it to his TA he got a C he was pissed So, he decided to appeal the grade, to his teacher, and the teacher upheld the C. So now he is really upset because he thinks he did a great job on the paper and he starts writing and calling state legislatures around the country And over the next decade they start to ratify this Amendment and ten years later, after

he got his C, Alabama became the 38th state to ratify this Amendment, adding it to the United States Constitution A few years ago, because he had not let it go, he re-petitioned the University of Texas at Austin to consider a grade change from this decade old paper that had actually led to a constitutional Amendment and, although he asked for an A plus, the University of Texas gave him an A The point of me talking about these two Amendments is that the two most recent Amendments to the Constitution were largely championed and added because of the efforts of young people Of the efforts of teenagers of people in their 20s and, it goes to show you that, even though it is incredibly difficult and incredibly hard you do have power You can make change at the local level, at your state level and federal level you can even start a movement that adds a constitutional Amendment And, I think it starts by understanding the power that, you have — that was given to you, by this incredible document 231 years ago and knowing how the country works so that you can use that knowledge to make the changes you want to see This country and the government that is set up, is supposed to work for us It is supposed to work for you And, I think it’s really inspiring to know that it was younger generations that added the most recent Amendments to the Constitution and in honor of Constitution Day, maybe take a moment and think about, what Amendment you would like to see to the Constitution Because again, this document was set up to be changed So, what would you want to see as the 28th Amendment or the 29th Amendment or the 30th Amendment? You don’t have to write a paper about it, just think about it Then get to work! Have a great Constitution Day and thanks for watching