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JAD ABUMRAD: It’s me, Jad Albumrad, here with more perfect season three, the most perfect album, we are marching through all the 27 amendments to the Constitution, playing songs from the album we've put together along with audio liner notes that dig in a little to what each of these amendments mean to us now. Today, we have three amendments, three songs. We put these three together, because they represent three times in our history when collectively we decided to make what seemed like small tweaks to our democracy. But those small tweaks ended up having arguably massive effects, fundamentally shifting the way that we do things here in America, for better or worse. Okay, so that's generally what we're up to. We've got three amendments of that sort. Three songs to go along with it from the most perfect album – mostperfectalbum.org.  We're going to start with amendment number 12. Probably not an amendment you've ever thought about but producer Rachael Cusick has, and she brings you this liner note.

RACHEL CUSICK: Imagine a world where… 

[ARCHIVE VOICE] …Ladies and gentlemen, the Republican nominee for president… 

RACHEL: …these people…

[ARCHIVE VOICE] Donald J. Trump, and the Democratic nominee for President - Hillary Clinton…

RACHEL: …Donald Trump and Hillary Clinton, both run for president of the United States. Trump wins, Hilary loses. But instead of bowing out, Hillary Clinton becomes Trump's vice president. 

HILARY CLINTON: Let me respond to that, because that's horrifying.

RACHEL: Given the kinds of campaigns they ran, it's a crazy thought.

HILARY CLINTON: Donald Trump's ideas aren't just different. They are dangerously incoherent.

DONALD TRUMP: She has no natural talents.

RACHEL: These people attacked each other's character.

HILARY CLINTON: Do we want his finger anywhere near the button?

 

DONALD TRUMP:  She's one of the worst Secretaries of State in the history of our country.

RACHEL: Their mental stability. 

HILARY CLINTON: Now, I will leave it to the psychiatrist to explain his affection for tyrants…

DONALD TRUMP:  …but totally she was out of control. I said there's a person with a temperament that's got a problem…

RACHEL: …their voters…. 

HILARY CLINTON: You could put half of Trump supporters into what I call the basket of deplorables. The racist sexist, homophobic, xenophobic, Islamophobic…you name it.

DONALD TRUMP: Lock her up is right. How do you lie to the FBI? And now you're running for president? How does that happen?

RACHEL: And in no world would you pair these two people up and then expect them to co-lead a country. But for the first few years of our country, that's how elections worked. A bunch of people ran for office.The person with the most roads became president and the person with fewer votes became vice president. But very quickly, things went south. 1800 Thomas Jefferson squares off against John Adams. Jefferson’s side basically calls Adams a hideous hermaphrodite. Adams fires back saying that Jefferson was the son of a half-breed Indian squaw. And everybody jumps to the conclusion that there is no way that these two guys can serve together, that our country needs a better way of doing this. And that way was

a… 

JEFFREY WRIGHT: ...12th amendment.

JULIA: 12th amendment. 

JEFFREY WRIGHT: The election of President and Vice President. The electors shall meet in their respective states and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves. They shall name in their ballots the person voted for as President. And in distinct ballots, the person voted for his Vice President.

RACHEL: From then on one person from each party would run with a chosen sidekick, and as long as they weren't from the same state elections could carry on as normal without any forced partnerships. I can't help but wonder though, if maybe in some small way, this amendment fueled some of the hostility from the 2016 election. It took away the pressure to be civilized.

 

[Music]

 

JAD: Rachel Cusik with that liner note for the 12th amendment. Now the band that tackles the 12th on the most perfect album happens to be one of my favorite bands. I've been listening to these guys for like 10 years.

TOTO MIRANDA: Hi, this is TOTO from the band octopus project. We chose the 12th amendment for our track without knowing too much about the amendment itself. Unlike the more famous amendments, like the first or the second, the 12th is pretty dry and mostly deals with procedural details rather than describing specific individual rights. So we weren't completely sure how to approach it. When researching the amendment a little more, especially in an essay we found called “Who's Afraid of the 12th Amendment,” it became clear that the dryness and procedural language was the point - that the Federalists believed that an intricate structure of checks and balances was a more effective deterrent to a tyrannical government than an enumeration of specific rights, or parchment barriers as they called that approach. And there's something really interesting to us about the concept of a series of dispassionate systems and mechanisms being as much a defender of liberty as some of the more dramatic flaming sword amendments in the Bill of Rights.

[Music]

The looping mechanical clacking sound and the track… 

[Music]

….connects with that image for us. 

[Music]

And I really like how the interlocking rhythms of…

[Music]

…the drums and the clacking sound provide the base for the more dramatic [??] since on top of to continue the musical metaphor of the different approaches in the different amendments.

[Music]

I hope you enjoy the track - thanks.

[Music]

JAD: I love that song. Okay, so we're going to skip right ahead from 12 to 20. Because they both came about around the same time, they both deal with the oddness of elections. This particular one - number 20 - tries to close a devilish little window of time that occurred after an election but before that person took office. Sometimes called the lame duck period, which makes it sound gentle and harmless. But as Julia Longoria will explain, it's not, it's not…

 

ED LARSON: Well it's a small niche, but I'm certainly a 20th amendment person, and there are not too many other people trying to fill that void.

JULIA: So I talked to this professor, Ed Larson, who considers himself a man….

ED LARSON: …absolutely correct. 

JULIA: So it's, like, kind of hard to get people up in the morning for like structure changes, I guess. The Bill of Rights might be a little bit more sexy, for lack of a better word, but… 

ED LARSON: …well, it got me up this morning. [laughter] It can get people up, but it takes more explaining.

JULIA: As unsexy as the 20th Amendment might seem. It was passed thanks in large part to a very sexy President.

ED LARSON:  Well he was off in a hotel room with his mistress when he got word that he’d just gotten the nomination.

[ARCHIVAL VOICE] They nominated the darkest of the dark horse candidates - his name Warren Gamaliel Harding.

[Music]

JULIA: Warren G. Harding. 29th President of the United States, has become famous for his steamy and infidelites. And his failures as a president.

ED LARSON: There are very few supporters.

JULIA: Is he like universally acknowledged to be one of the worst presidents or…

ED LARSON: …the general consensus among historians in political sciences to both parties is - Harding defined the bottom.

JULIA: Harding himself famously said, I am not fit for this office and should never have been here.

ED LARSON: He was a modest man who had a lot of reason to be modest.

JULIA: He wasn't exactly an ideas guy. The Republican Party chose him as a compromise.

ED LARSON: He would be a tool of the special interest, and a tool of the members of Congress - the tool of the people picking him.

JULIA: And it turns out, generally kind of a tool. And this one episode and President Harding's presidency was unpopular enough that it inspired the country to change something pretty fundamental about the way things ran.

ED LARSON: The old system was set up almost by accident.

 

JULIA: It was an accident of timing. Since the founding of the nation, our government ran on a very strange schedule. elections would happen in November like they do now. But new leaders wouldn't take office until way later, presidents started their terms five whole months after they were elected. And Congress–

ED LARSON: The new Congress didn't first meet for a year.

JULIA: This created a strange phenomenon where anytime a Congress was elected, the old Congress, the lame duck Congress, they call it that had been potentially voted out by its people. Those guys got to meet for a whole session, a whole session where they didn't have to answer to the people.

ED LARSON: Do you ask why? Why would such an obvious anomaly not be corrected? The reason is, it's why other logical constitutional amendments don't get passed - somebody gains.

JULIA: …the lame ducks. 

ED LARSON: The lame ducks gained from this. The lame ducks gain because they basically had an entire session of Congress where they were free to do what they wanted. And because every member of Congress views themselves as a potential lame duck, they all are going to retire or lose sometime. You could never get enough of them to vote for the amendment.

JULIA: That is until this one shameful, shameful episode under Warren G Harding. 

[Music]

JULIA: Let's backup.

[WARREN G. HARDING RECORDING] My countrymen, there isn’t anything the matter with civilization…

ED LARSON: President Harding ran on two catchphrases. One he invented a new word, 

[WARREN G. HARDING RECORDING] Normalcy. 

ED LARSON: Return to normalcy. Normalcy - whatever normalcy is we're gonna return to it.

[WARREN G. HARDING RECORDING] Not revolution but restoration. 

JULIA: And right after World War One - that was a popular idea,

ED LARSON: That vision of when America was, was great. 

JULIA: Hmmp

ED LARSON:He wanted to bring that back.The other was…

[WARREN G. HARDING RECORDING] …to safeguard America first. 

 

ED LARSON: America first. 

[WARREN G. HARDING RECORDING] To stabilize America first. To prosper America first. To think of America first.

ED LARSON: He called for sort of isolationism - breaking relations with our traditional allies in Europe. Getting rid of immigrants. 

JAD: I know you're thinking 

ED LARSON: He pushed immigration legislation that became law, that for the first time excluded people from America based on the source of where they came from. Southern Europe and Eastern Europe, totally barring people from Asia. Of course, barring people from places like Africa. And the appeals for a return to normalcy, for America first, had tremendous resonance in 1920. By 1922..

JULIA: …his second year in office…

ED LARSON: …wasn't quite so sure, because you had a backlash.

JULIA: And the midterm elections of 1922 were a landslide against Harding and the Republican Party, 

ED LARSON: The Democrats gained 84 seats. That is a huge wave election.

JULIA: It was one of the biggest losses for a sitting president's party that the House of Representatives had ever seen. Just for contrast, the latest midterm swing in the house was roughly the 20th largest in history. This one was the fourth largest in history. And yet, at the time…

ED LARSON: …when you did have a wave election, when one party lost power, the other party hung around… in control of Congress, passing all sorts of bills that were against the will of the people.

JULIA: And I think that's crazy. Like I don't think people really understand that like half for years for like the first 150 years of democracy - half the time Congress had the potential to be completely undemocratic. Right? Is that a fair assessment?

ED LARSON: I guess people wouldn't have called it a democracy back then. It was some sort of Republic.

JULIA: Right, right.[music]  But the audacity of Warren Harding is next. The corrupt bills that he tried to get passed during the lame duck session of 1922…

ED LARSON: …the most notorious one was his ships bill. A bill to build ships for the merchant marine that would profit Republican donors and his friends mightily.

JULIA: It woke a lot of people up both, Republicans and Democrats, to the problems with lame ducks.

 

ED LARSON: Also, there were widespread rumors that he was promising jobs to lame duck members of Congress - who would vote his way.

JULIA: President Harding didn't end up getting his way. One of the most famous filibusters in history stopped the ships bill. And the widespread outcry against this corruption launched a campaign that would end with the following Amendment of the US Constitution. Read for us now by actor Jeffrey Wright.

JEFFREY WRIGHT: 20th amendment, presidential term and succession, assembly of Congress. The terms of the President and the Vice President shall end at noon on the 20th day of January. And the terms of senators and representatives at noon on the third day of January. The years in which such terms would have ended in this article and not been ratified, and the terms of their successors shall then begin.

JAD: Did that fix it? 

JULIA:Well, did the 20th Amendment solve the lame duck problem?

ED LARSON: So we still have a legacy? Not completely in the short, lame duck period, it's no longer a lame duck session.

JULIA: It's shorter now, but…

ED LARSON:  …we do have a period when the old officeholders continue to hold power. And that gets criticized because that old Congress, if it loses power, will suddenly confirm a bunch of judges or pass a bunch of laws, or the President will issue a bunch of Pardons or do a whole slew of last minute regulations. That's still a legacy. That wasn't changed by the 20th amendment because the 20th Amendment itself like everything else in American, in the Constitution, is a compromise.

JAD: Julio Longoria with that liner note for the 20th Amendment. The artist that tackled the 20th on the most perfect album, is Virginia rapper, r&b singer Huey spring.

HUEY SPRING: So my thoughts going in on this project was I thought it was a brilliant idea. I thought it was a grand idea. Because it's a vital, that people have to, Black people importantly, but everybody really need to know their constitutional rights, especially in today's climate. All my thoughts going into the song is I have the 20th amendment. And there's a bunch of different sections to this amendment. But it was, it was interesting to see how would I attack this? And the way I approached it is - I approached it from the perspective of the actual person as if I was in Congress myself.

[MUSIC]

JAD: What I like about the song is that Huey Spring writes it in the perspective of someone who's lost the election - they are in that lame-duck period. Yet they decide not to be opportunistic about it because the work is way more important than they are. So they just want to do good.

So it sort of flips it to be more about somebody who is - faithful and selfless.

[MUSIC]

JAD: You could hear that whole song at themostperfectalbum.org. I'm Jad Abumrad, and we will continue in a moment.

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JAD: I'm Jad Abumrad. This is the most perfect album we've done 20, We've done 12 -  One more to go…

JEFFREY WRIGHT: 17th amendment. Popular election of Senators.

STEF CHURA: This song, what is the song even about? I mean, it is about the 17th Amendment, the one and only amendment that created senators being voted in.

[MUSIC]

STEF CHURA: I was like, so unchill while recording the song. I wrote most of the lyrics during a cartoon that will pop up if you Google 17th amendment. 

[MUSIC]

JAD: Okay, so a little background, that is indie rocker singer-songwriter-person Stef Chura, who chose to write a song about the 17th amendment. That is an amendment and, she writes about this in her lyrics, that explicitly tries to stamp out undue influence from special interests. That phrase you constantly hear politicians say “drain the swamp” of special interests. No more special interests? Well, I didn't know this. But back in the day, we the citizens of America did not choose our senators directly - state legislatures would choose them for us. And that opened the door for those special interests to walk in and essentially buy power. You had big oil companies, big coal companies, all kinds of big companies, making these backroom deals with state legislatures to get whoever they wanted elected and the 17th Amendment put an end to that and made the electing of senators way more democratic.

STEF CHURA: This song goes out to my senators, and the choice that we get in and just like getting to choose. Yeah, so thank you. This is, this is a pleasure.

JAD: You can hear Stef Chura’s entire song at themostperfectalbum.org

JEFFREY WRIGHT: The Senate of the United States shall be composed of two senators from each state elected by the people thereof for six years.

 

[MUSIC]

 

JAD: Producer Julia Longoria – hit it.

JULIA: So, crazy story, for the first 150 years of our democracy, the people did not vote for our senators. 

JAD: Nope.

JULIA: So yeah, the 17th amendment changed that - it made things more democratic. And frankly, this seems like a very boring amendment. And I feel like we should move right along because there's really nothing to see.

JOHN DANIEL DAVIDSON: You're right that most people don't go around thinking about the 17th amendment and kind of like, you know, burning with the desire to have their state legislatures appoint senators. 

JULIA: But…that desire did burn in the heart of this man.

JOHN DANIEL DAVIDSON: Yes. My name is John Daniel Davidson. I'm a senior correspondent at The Federalist.

JULIA: The Federalist is a conservative online magazine and John DD has written in it about the need to rethink the 17th and maybe go back to to the way things were, where state legislatures would choose our senators for us. It's an idea that first caught flame in his heart on a long drive, where he says I saw democracy at work.

JOHN DANIEL DAVIDSON: So I went to Alabama and I drove around the state, going to a lot of different small towns, and talking with Baptist churches with working class people 

JULIA: The state was in the middle of a special election to replace their senators.

JOHN DANIEL DAVIDSON: As I spoke to people, number one thing that came through was that they felt as though the federal government did not represent that, that it did not represent their values and that they had no voice.

JULIA: They felt like American democracy was rigged by special interests. And at the time, there was one candidate who spoke directly to that feeling. His big message…

JOHN DANIEL DAVIDSON: …I do care about you. I am like you I will represent you and not the special interests that control Washington…

JULIA:…when you put it like that. It sounds kind of romantic though.

JOHN DANIEL DAVIDSON: Right? No, it does. Yeah, absolutely. It sounds romantic. Until you end up with candidates like Roy Moore.

 

JULIA: Let's break it down. 

[ARCHIVAL VOICES] A total of nine women have now come forward with allegations of overtures by Roy Moore 

…and we're talking about here Chris is a 14 year old little girl, Roy Moore is a pedophile.

JOHN DANIEL DAVIDSON: Right? And that's when the reality kind of comes crashing in that, that, you do need to temper the will of the people and to direct it in positive directions. In other words…

JULIA: …maybe the people, don't maybe know best, and this is something you hear a lot these days, maybe democracy is not all it's cracked up to be. 

TODD ZYWICKI:  We do not have a democracy established by the Constitution.

JULIA: That's Todd Zywick, one of the first people who call for the repeal of the 17th amendment. Would you say that you were like the founder of this movement?

TODD ZYWICKI:  Well, first, so a bit of an overstatement to call it a movement. Is this.

JULIA: He has no fantasies about the 17th actually being repealed. But he thinks it's a worthy thought experiment. Is it fair to say that you kind of want the Senate to look a little bit more like the Supreme Court? 

TODD ZYWICKI: Well, I think that's what the framers had in mind, that people who served in the Senate would be people who weren't really going to stoop and scramble for votes the way that we would expect the House of Representatives to do it. 

JULIA: And Todd's argument sort of mirrors what a lot of the founders way back at the beginning were scared of. Hamilton, Madison Adams, one of their big fears was that the people don't always know best, that democracy is good, but it's not everything. Because what ends up working with people is sometimes rhetoric. It's stooping and scrabbling and telling people what they want to hear. Todd's argument is that we need a vetted group of people to pick the Senate. That will mean senators are smarter, more independent, more thoughtful.

JULIA: I wanted to ask you, these people that you talk to? Did they convince you any? 

NANCY UNGER: They gave me more reason to pause and than I thought they would actually.

JULIA: Historian Nancy Unger is Team Democracy. Can you give me like the catchiest radio jingle version of the argument for the 17th amendment. And like why we shouldn't curtail the people's right to basically shoot ourselves in the foot?

 

NANCY UNGER: I would probably have to give you Robert LaFollette’s quote, “The Supreme issue involving all the others is the encroachment of the powerful few upon the rights of the many”

JULIA: …doesn't exactly roll off the tongue. But we'll take it. And the argument, kind of get to pick your poison, like on the one hand world without the 17th Amendment, we kind of already know what that looks like.

NANCY UNGER: Anybody can do a Google search. And look at some of the cartoons from the Gilded Age and progressive era. Those are sort of the periods right before the 17th was passed. And there's a very famous one of all the senators in the Senate, but behind them are the real bosses of the Senate. And they're these huge moneybags. You know, senators were essentially being bought and sold. 

JULIA: Now, money in politics, obviously, still an issue… 

NANCY UNGER: …but it's not unchecked the way that it really was, I believe, prior to the 17th amendment.

JULIA: So that's one reality. Balanced against that you have the current situation where you get the Roy Moores of the world. And it seems like we the people have this tendency sometimes to take out the proverbial gun, polish it, point it right down at our foot - and Pow.

NANCY UNGER: And I think that is a problem, but for me, it's the lesser of two evils.

JULIA: Nancy thinks back to those progressive lawmakers who first made the 17th Amendment happen…  

NANCY UNGER: …their moment was this real belief in the power of the people. That the Progressives, you know, a lot of these people were alive during the Civil War, they remembered Abraham Lincoln. They really believed that you could trust the people empower them and they would use that power for good. That says a lot about their moment. And I think the idea of repealing it now says a certain amount about our moment - there are risks in democracy. I just don't think that we have the right to expect that everything's going to be simple, or it's going to be perfect.

JULIA:  The deeply frustrating thing about democracy, but also, the deeply beautiful thing about it - is that every decision is only here for a spell. Every bad decision, and also every good decision…

NANCY UNGER: ….you know, you're never done. You're always working, you’re always developing. You have to fight for democracy. Every generation has to fight for it in a new way.

-30-

 

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