Jad: Today on the podcast, Robert, we're going to talk constitutional law, federalism, and the intricacies of international treaty practice.
Robert: Oh god, no.
Jad: You ready?
Robert: No, no, no, don't do that.
Jad: It's going to be good, it's going to be good. It's going to be good because I have help.
Kelsey: Hi, guys.
Robert: Hi, Kelsey.
Jad: Kelsey Padgett has reported this segment, and just listen to how it starts.
Kelsey: The story starts with a betrayed spouse.
Jad: You see?
Robert: That's much better. I'm coming back to my seat.
Jad: Get some popcorn.
Duncan: My name's Duncan Hollis.
Kelsey: He's not the betrayed spouse.
Duncan: I'm a professor of international law here at Temple University in Philadelphia.
Nick: I'm Nick Rosencrans.
Kelsey: Not him either.
Nick: I'm a professor of law at Georgetown. I'm also a senior fellow in constitutional studies at the Cato Institute. Mrs. Bond-
Kelsey: That's her. That's our betrayed spouse.
Jad: Carol Anne Bond.
Kelsey: 36. Lives in a suburb of Philly.
Nick: -discovered that her husband was having an affair with her neighbor.
Kelsey: Actually, it was worse than that. This woman was her best friend. Not only that-
Duncan: She finds out that her friend is pregnant via her husband.
Kelsey: He got her pregnant.
Robert: Oh, my god.
Kelsey: This is her best friend and her husband of 14 years.
Duncan: She was quite upset, distraught.
Jad: Enraged, I would imagine?
Kelsey: Yes. Carol made threats, there were confrontations. The other woman is named Myrlinda Haynes, by the way. Eventually, Carol Anne Bond-
Nick: She did what anyone would do, she got a bunch of toxic chemicals.
Robert: I do it all the time.
Kelsey: She tried to poison her best friend. Repeatedly.
Jad: Back up for a second. Where would she have gotten the chemicals from?
Nick: She worked, I believe at a lab.
Duncan: She works for a chemical company. I think it's Rohm and Haas.
Robert: She's a biochemist?
Kelsey: She's actually a microbiologist, but she grabbed some chemicals from her office.
Duncan: I think she also ordered some off the internet.
Duncan: They're pretty serious chemicals.
Jad: Like what?
Kelsey: Well, one was--
Duncan: Arsenic based, and in large enough doses, and when I say large doses, I'm talking teaspoons, not gallons, it can cause serious injury, and can be fatal.
Kelsey: Anyway, she took these chemicals, she went over to her best friend's, or her former best friend's house.
Nick: She spread them on the doorknob, and on the mailbox.
Duncan: The door to her car. They're visible, I guess. You can see them.
Jad: The best friend isn't fooled?
Duncan: No. She calls actually the local police. The local police tell her to take her car to a car wash. They said, "Oh, you know, it could be drugs. Get the car washed off."
Kelsey: They just blow her off, but it keeps happening. Over the course of half a year, this happens 24 times.
Robert: 24 powder attacks.
Kelsey: According to the court briefs, the police were not being very responsive. She called them over a dozen times, and they tested it to see if it was cocaine, once they figured out it wasn't, they didn't really do anything. Finally, she tells the post office.
Duncan: It was the post office that actually sent out postal inspectors, and they set up a hidden camera.
Kelsey: They video-taped Carol Anne Bond in the act.
Robert: They get her on tape?
Duncan: That's how they identify her as the person putting chemicals on the mailbox.
Jad: I didn't know the post office did stuff like that.
Duncan: To be honest, I didn't either.
Jad: I think of them so differently now.
Nick: I think if there's a moral to the story, it is do not mess with the mail.
Nick: They take that very seriously.
Kelsey: Actually, there's a whole lot more going on than just messing with the mail because of what happens next. According to Nick Rosencrans, generally things like assault or attempted murder-
Nick: Those are state crimes.
Kelsey: -in most circumstances, the federal government can't charge you with murder. The post office, that's a federal institution, so when they caught Carol Anne Bond, they kicked this up to the federal attorney, who then-
Nick: Went ahead and brought a federal case.
Kelsey: Here's the thing, they ended up charging Carol Anne Bond with violating the International Chemical Weapons Treaty.
Nick: We should be clear, the victim got a tiny thumb burn, and ran cold water on it, and was fine.
Robert: I did not know that.
Nick: This is not murder.
Robert: That makes this all the more odd.
Nick: Very odd.
Robert: When I poison someone, the last thing I'm thinking about is violating an international treaty.
Jad: We should never have you over for lunch.
Robert: [laughs] Really, why would they charge her with that? I don't understand.
Kelsey: If you actually read the treaty-
John: The statute simply says that it's a crime to use a toxic chemical for other than a peaceful purpose.
Kelsey: That's the exact language That guy, that's John Bellenger.
John: I served as the legal advisor for the department of state under secretary Condoleezza Rice.
Kelsey: John says that even though it sounds a little weird, this is exactly what this treaty was meant for. For people using chemicals-
John: Highly toxic chemicals.
Kelsey: -for nonpeaceful purposes.
John: Exactly right.
Jad: That's what happened here.
Kelsey: Imagine if she had killed a bunch of postal workers, then-
Jad: I don't think anybody would complain.
Robert: To charge her with an international treaty violation, it seems too big for the little lady.
Kelsey: It was really odd to her lawyers too.
Robert: I bet.
Kelsey: They're like, "Look, in the constitution, you have laid out what the federal government could do. This is not one of those things. You can't just take a treaty and use it to reach into the very local life of a normal person. That's a huge overreach."
Robert: Sneaky, frankly.
Kelsey: Now this case is before the Supreme court and it's become an ideological battle that goes way beyond Carol Anne Bond, her cheating husband, or her adulterous best friend.
Jad: I would argue that this case, as weird as it is, raises some really important issues about how the world is changing and about one of the most fundamental questions that is at the heart of America. I really believe that.
Robert: Well, you have to defend that position. What do you mean?
Jad: Let me take you back to the beginning. Okay?
Joseph: My name is Joseph J. Ellis. I am a historian. I've written the book called Founding Brothers and my most recent book is called-- What's it called? Revolutionary Summer.
Robert: You are a modest man.
Jad: Joseph Ellis, he's a Pulitzer Prize-winning author. He's written a bunch of books about the founding of our country, the revolutionary war. There is a scene in one of his books--
[00:06:45] Joseph: The book called American Creation. Didn't sell as many as Founding Brothers.
Jad: It doesn't matter to me, because it has this one passage that when I read it, I was like, "Wow, I've never thought of this country that way." To set the scene.
Joseph: You want to be real specific? It's September.
Jad: September 1787, Philadelphia.
Joseph: It's abominably hot.
Jad: You had all these great men crammed into statehouse. George Washington-
Joseph: This guy is a stud.
Jad: Six foot three, war hero.
Joseph: This guy is overwhelming.
Jad: Alexander Hamilton was there.
Joseph: Hamilton. He would have got the highest grades on the LSATs. I'm telling you, this guy was really smart.
Jad: Even Ben Franklin, who's pushing 81 at this point.
Joseph: Franklin's there.
Jad: They all came together to try and figure out, "How do we do this?" If you think about it, it was a puzzle because you've got these 13 colonies, which are really like sovereign nations. They were loosely organized into a Federation that was about to go bankrupt. They had to do something. They were like, "Let's bring them together into a union, but how do we do that without a king?" It was a crazy experiment.
Joseph: One thing you got to realize is that at that time in American history, the average person was born, lived out his or her life, and died within a 30-mile radius. They don't have cell phones and they don't think about themselves as Americans.
Jad: They thought of themselves as Pennsylvanians, South Carolinians, Bostonians.
Joseph: There is no real national ethos.
Jad: That's one problem. Second problem. The founding fathers could not agree. Could not agree on the most basic question. If there's not a King, who's in charge? The so-called sovereignty question. On the one hand, you had a guy like Alexander Hamilton who got up there and was like, "Why do we even need States? What's a state? What we need is a federal government that is big and strong and powerful."
Joseph: That's Hamilton, baby. Hamilton wants a president elected for life. Hamilton wants a Senator elected for life.
Jad: On the other hand, you had the Thomas Jefferson school of thought, which was like, "No. We just got out of a monarchy, for Christ's sake. The only way we're not going to get back in one is if we keep the government small, restricted and-"
Joseph: All domestic policy belongs in the hands of the States.
Jad: Sound familiar?
Joseph: Jefferson likes anything in which the government is not going to be doing much.
Jad: You had these two very different philosophies and the way Joe sees it-
Joseph: "If you let Jefferson have total power, you'll end up at anarchy. If you let Hamilton have total power, you're going to end up with a totalitarian state."
Jad: At the convention, the two sides went back and forth and anytime a Hamiltonian type proposal hit the floor, some of the States would say, "No." They'd shoot it down because they did not want some big government telling them what to do, especially when the 800-pound gorilla in the room was slavery. They couldn't agree at all, and into this mess, walks our hero, James Madison.
Joseph: Madison is 5"2, 120.
Joseph: He's the kind of guy that stands in the corners during the dance. He would call him a nerd.
Jad: Madison. Well, you might call him a pragmatist.
Joseph: Madison wants a clear decision about sovereignty.
Jad: For example, on local matters. Who gets the final say, the States or the federal government? Just give me some clarity.
Joseph: He was not going to get it. He comes to that realization at the very end.
Jad: At the end of the convention, they have this document. He wrote the original blueprint. Now there's this new document so riddled with compromises that, according to Joe, the basic question he wanted answered wasn't. The, "Who's in charge?" question was left vague on all sorts of matters. Who regulates money in banks who gets to tax what? Who decides whether new States will be slave States or free States? it was vague. Initially, according to Joe, in a letter that Madison wrote to Thomas Jefferson, he's like, "Come on."
Joseph: He's very disappointed.
Jad: He thinks the document's going to fail and the country is going to fail.
Joseph: He doesn't think this is going to last.
Jad: Then, Joe says in his writings, you start to see a shift.
Joseph: He starts to think differently. He starts to say, "Wait a second. This could work precisely because it's unclear." We found what he calls a middle station.
Jad: Where everyone can see what they want to see. People come out of the convention, go back to their States. The guy in South Carolina says, "Don't worry about slavery. The 10th amendment is going to tell us that they can't do that." The guy in Pennsylvania and says, "It's just a matter of time before we end slavery. The constitution becomes successful because the people don't agree on what it means.
Jad: That, according to Joe, was Madison's epiphany.
Joseph: That the constitution isn't a set of answers. It's a framework for argument. This is a document which allows us to continue to discuss and debate the core issues that we faced. The powers of the presidency, the sovereignty question. The real resolution of the sovereignty question is never achieved. It eventually leads to the civil war.
Jad: What I find neat about this is it like that argument that happens in modern politics all the time about state's rights or the size of the government, which can feel like a random argument for me at times. Suddenly to know this, if you buy what Joe is saying, it's not random at all. This is an argument that was actually literally written into our founding document. In some sense, we, as a country are the product of that argument.
Robert: Of course, not everybody agrees with Joseph Ellis. There are people who think that the founding fathers had a very specific thing in mind. If you just go back to their debates and to what they said to each other, that you can find the real, only deep logic for the constitution.
Jad: The fact that they disagree with Joe in some sense, doesn't that make Joe's point that you can read this document in 10 different ways?
Robert: Yes. Everyone always argues, always.
Jad: Just to pick up the thread. After the civil war, the argument changes, it gets centered.
Robert: The union is still an experiment.
Jad: Massachusetts can still do their business differently than Colorado, differently than Vermont.
Robert: The jostling between the federal government and the state government doesn't end. It just gets a little quieter, thank heavens.
Kelsey: Unless you're a duck. Our next stop is-
Jad: This one has everything to do with our poisoner.
Kelsey: It's spring of 1919, rural Missouri. You've got Frank McAllister, the attorney general of Missouri. He's out there with a bunch of friends and they're pointing their guns at the sky and shooting ducks one after another, after another. They ended up shooting, all in all, 76. He knows he can do this because he's the attorney general of the state. He knows all the laws of the state and he knows it's his right to shoot whatever duck is flying in the sky of Missouri.
Jad: That's the state law?
Kelsey: That's the state law. You can shoot the ducks. They're out there, they're having this great time. They're having this great haul, they've gotten all these ducks. Then out of nowhere Ray Holland, the federal game warden shows up and he says, "No, you can't do this. You can't shoot these birds. They're not your property." McAllister says, "You, you're wrong."
Duncan: "This is a matter for the state. It's our sovereignty. We never gave this over to the federal government."
Robert: He must've been like, "I don't think the federal government's anything to say. The duck was born here. At least, I found it in the sky here. I shot it here. It died here and I'm going to eat it here. This is my duck."
Kelsey: The game warden says, "No, it's not your duck." He arrests them all, setting up a landmark confrontation. Here's what had happened. Two years earlier, the administration of Woodrow Wilson was sitting there, wringing their hands, thinking, "All these people are killing birds at a non-stop pace." If this didn't stop-
Duncan: There was some concern at this period that we were going to hunt these things to extinction. We might not have any migratory birds at all.
Kelsey: Problem is, the courts had already told the federal government, "This is purely a local matter. You can't make federal hunting laws." Then somebody in the administration has this really great idea, or really evil idea depending on how you look at it.
Duncan: "Maybe if we can get Canada to cooperate with us, we can do this by a treaty."
Kelsey: There's this clause in the constitution that says treaties are the supreme law of the land. "Maybe if we make an international treaty, then the States will have to go along." Frank McAllister, he sues, and this goes all the way up to the Supreme court.
[00:15:35] Duncan: It lands before Oliver Wendell Holmes, one of the more famous justices of the Supreme Court. He basically says, "The treaty power is something that was given to the federal government, don't limit this. This treaty is good. The treaty and the legislation are upheld."
Jad: Score one for the federal government.
Duncan: Score one for the federal government. In there, you actually have Holmes talking about what the constitution is. He was this thrice-wounded, civil war veteran. He actually invokes the language of the civil war, saying, "We spent all this sweat and blood to figure out what nation we were going to become for birds." He invokes this language and basically says, "Whatever we had debated in the past, could the States regulate slavery without federal interference?" Holmes says, "No, the side who fought that argument, they lost."
Kelsey: All this talk about birds, and state versus federal has everything to do with our prisoner Carol Anne Bond. This case is the precedent upon which the federal government says that they can prosecute Carol Anne Bond because Oliver Wendell Holmes said that treaties are the supreme law of the land.
Robert: I don't know, I'm still of the mind that this is a sneaky bit of business by the federal government.
Duncan: It's not sneaky if you're a duck. I feel I must speak on behalf of the ducks here.
Robert: No, forget your ducks. This is a Pennsylvania lady, doing a Pennsylvania adultery, in a Pennsylvania mailbox, with a Pennsylvania mood. There's no birds flying overhead. This is an all Pennsylvania crime.
Kelsey: You know who wasn't doing a God damn thing about that? Pennsylvania. Just to take your side for a second, Robert.
Robert: Please, do that.
Kelsey: [laughs] If you really think about it, and the way that Nick Rosenkranz thinks about it, this is really troubling. This decision seems to say that, theoretically, the federal government's power-
Nick: Is potentially infinite.
Kelsey: John Kerry, who's our secretary of state right now, he goes and makes treaties. Say he's talking to Zimbabwe and we agree that we want to have a treaty about educational standards for children. We come home and we write a law that says, all children must go to public schools, but then that would outlaw homeschooling for children, which is a clear local state matter. Now suddenly the federal government has a power to do that.
Nick: It just seems odd, the idea that the president, the Senate and Zimbabwe can increase Congress's legislative powers.
Kelsey: Here's how John Bellinger responds.
[00:18:24] John: Is it a theoretical possibility that the federal government might try to go and do that? I suppose it's theoretically possible, but there's no evidence that happened here. There's no evidence that has happened in a hundred years since Missouri vs Holland.
Kelsey: He would say, "Look, consider-"
John: The practical impact that a decision might have that would cut back on the president's treaty power. Other countries are already highly suspicious of the United States' ability to deliver on its treaty commitments anyway.
Kelsey: John would say, "Why would any other country want to make a treaty with us if Kansas could back out at any time?"
Jad: How do you deal with a question like global warming, if everybody is allowed to be left to their own devices?
Robert: That's a tough one.
Duncan: The reality is-
Kelsey: That's Duncan Hollis again.
Duncan: We live in a globalized world, whether it's dealing with things like climate change, terrorism, shipwrecks, cybercrime. Increasingly, these are things we can no longer regulate just within a particular local community or a local society.
Jad: On some level, if we now find ourselves in this world where I can get on the internet and spend hours and hours playing world of Warcraft with people in Yugoslavia, and yet I've never really talked to my neighbor that's just down the street, why wouldn't we all have the same laws?
Nick: I think the flip side of your question is fine. The world is very interconnected, but are there still some things that are local? Are there some things left where we could say, "The federal government doesn't need to be able to reach to this?"
Kelsey: More than that, Nick says that having a bunch of different communities that are governed by different rules all under the same nation, actually-
Nick: Has a bunch of benefits. Competition, the idea of laboratories of democracy. That the 50 States will all try different things as to regulating guns near schools, as to regulating whatever it is, and maybe some state will hit on something brilliant. If they do then it will spread and be replicated. That theory has been born out in a lot of different areas. When the Feds decide that they're going to come up with a one-size-fits-all national solution, that's the end of the experiment.
Robert: By the way, what happened to Caro Anne Bond
Kelsey: Well, she went to jail.
Robert: She's in jail. She's still in jail?
Kelsey: No, she's out now.
Robert: She could go to court and find out whether this thing was-?
Kelsey: Yes. [chuckles]
Robert: That's cool.
Kelsey: She can show up.
Jad: What about the poisonee? What happened to her?
Kelsey: The poisonee, she changed her name, she moved away. She's unsearchable now.
Jad: Good. I hoped she moved to Zimbabwe.
Kelsey: It's for the best.
Robert: Is she still living with the guy that gave her the baby?
Kelsey: No. You see, Carol, even though she went to jail for 6 years, she's stayed with her husband.
Jad: No way.
Robert: She stayed with the man who had a baby with the other lady?
Kelsey: Yes, that she tried to poison that lady about. She stayed with that guy.
Robert: See, that's the thing, laws is interesting but love, that's complicated. Love is greater than treaties.
Jad: Thank you Kelsey.
Kelsey: Thank you.
Jad: Kelsey Padgett, Robert Krulwich, Jad Abumrad.
Robert: That's all of us. I think you've mentioned all of us.
Jad: Let's go.
Robert: We have to say goodbye to all of you. Bye.
Jad: Happy Christmas.
Bonnie: This is Bonnie calling from Massachusetts. RadioLab is supported in part by the National Science Foundation and by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.
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