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[MUSIC PLAYING]

Travel around America and you're bound to run into the Constitution. It seems to be everywhere.

The Constitution!

Our Constitution–

The Constitution.

You haven't read the Constitution?

This little document, it means everything to us.

It's like the Big Bang. It's the most momentous thing to happen in the modern world.

The Constitution has been around for more than 225 years. But many of us don't have any idea what it says. Of course, that's never stopped us from arguing about what it means.

I'm Peter Sagal, and I'm taking a journey across the country to find out how the Constitution works in the 21st century. In this episode, the framers thought they'd come up with a pretty good system. But even if they didn't really think the Constitution would be around forever.

They would be astonished that it has lasted in the form in which they crafted it.

In fact, it's lasted longer than any other written constitution still in use today.

There's this brilliant thing that we do.

Along the way, it's been pushed to the brink.

I'm not a crook.

And stretched to the breaking point.

In every war, there are a lot of people who think the president acts too aggressively.

So there are federal agents in your bedroom, a 16-year-old girl.

Federal agents, police officers, everything.

Over the years, we've given that document a real workout. And these days, it seems like it's taking a lot of hits.

We are on the brink of a partial government shutdown.

Shut it down!

This dysfunction is brought about by the election of crazy people.

And what's lost are a lot of the voters in the middle.

We the people have to have an invention. Uncle Sam is a drunk.

Your constitutional provisions are no match for me.

Is our Constitution up to the challenges of the 21st century?

Civics is a dirty business, ladies and gentlemen.

Sometimes the search for the American Constitution takes you places even a Harley can't go. Welcome to Reykjavik, Iceland. This country of about 300,000 people became an international financial capital during the boom years. Then in the crisis of 2008, everything fell apart. The three largest banks collapse. Parliament, which meets in that building over there, fell. The prime minister resigned.

Now to keep anything like this from ever happening again, the people of Iceland right now are engaged in creating, and then approving, a brand new national constitution. They're throwing the old one out and starting again. The Icelanders took a real 21st century approach– inviting ordinary citizens to submit ideas via Facebook and Twitter. That's why Article VI is nothing but cat videos. All right, I'm kidding.

Maybe they're on to something, creating a new constitution. One that's custom-built for modern times. Some of the members of the constitutional council are traveling the country to promote their new crowd sourced national charter, and I asked them for a lift.

This is pleasant. This is the magic bus, you call it?

Yes.

Are you guys sleeping on the bus?

No.

No.

Just napping.

So this it? This is the draft constitution?

It's yours.

Oh, thank you. Are there other members of the constitutional committee on the bus?

Yes.

I'll have to get you to sign it, then.

Founding Fathers.

Exactly!

And some others.

Thank you very much. I will not sell this on eBay.

One of today's stops is a remote fishing village where they will try to get the locals to support the new constitution.

[SPEAKING ICELANDIC]

Apparently, national constitutions are like cars. After enough wear and tear they can break down. But being in Iceland made me wonder how our own Constitution is holding up. Did our Founding Fathers really imagine we'd abide by it for more than 225 years? Well if anybody knows what the founders were really thinking, it's historian Rick Beeman.

How long a view did they take? I'm curious about this, because we've talked about as we think about the founders, what did the founders think about us? Did they look at this country, they wanted to build a country that would last 100 years, 1,000 years, did they think about that?

If someone had made a bet and said, this Constitution you're crafting will last 50 years. They'd say, eh, not so sure about that. They would be astonished that it has lasted largely in the form in which they crafted it for 225 years.

But I guess what I'm saying is, wasn't that their intent? Didn't they want to craft a government that would last indefinitely? Or did they not know?

They had the humility to know that the union they were crafting was likely to be a fragile one, that it would almost certainly change as the country changed. So they were creating a framework. But most important of all, they understood that this framework had to be a flexible framework.

The founders didn't all agree on how much flexibility there should be. Thomas Jefferson believed that each generation should give the Constitution a complete makeover, rewriting it to suit changing times. The earth belongs to the living, he said.

James Madison disagreed. He thought the Constitution, that he helped write, had the best design anyone could come up with. And that frequent renovations would undermine the whole thing. In the end, of the words written down in 1787 have never been thrown out. But built into the Constitution is a way to change it by adding amendments.

Yale Law professor, Akhil Amar, sees amendments as a kind of constitutional extended warranty.

One of the most amazing things about the Constitution is that vast, creative white space after the last amendment. It's like that billboard– your message goes here. What are we going to put in that space is a deeply democratic idea. But there remains work for our generation to do.

The process is spelled out in Article V, and it's far from easy. It takes a 2/3 vote of both houses, or a national convention, to propose amendments. And then they have to be ratified by 3/4 of the states. Over the past two centuries, thousands of amendments have been proposed. But only 27 of them have actually been ratified.

Amendments have addressed small things, like moving the date of presidential inaugurations, and big things, like ending slavery.

Here's the bottom line. We've had lots of good amendments, and almost no bad ones. So amendments are basically on the side of history. They're sort of surfing with the current, with the arguable exception of prohibition, which didn't end so well. OK, so every amendment has made amends, has made the system better.

In a way, each generation gets the chance to take part in revising the Constitution, without having to start from scratch, the way they did in Iceland. But amendments can take a long time to enact, or even fail to pass. So there has to be another way to make changes without changing the Constitution. There is. It's by using the machinery the Constitution itself provides.

So you're doing it?

No, no. I'm just hanging out here. Just trying to control my terror. You go on.

Claressa Shields is a pioneer in her sport. She won the gold medal in 2012, the first year that women's boxing was ever offered at the Olympics.

I remember when my boxing coach asked me, so why do you want to box? And I said, because I'm tired of losing at basketball. And he said, OK. And I started boxing, and that was the first place I felt at home. I can't even explain it. You know how you go somewhere, you just feel accepted period?

Yeah.

That's how it felt.

Claressa was born at the right time. With enough ability and dedication, there was no limit to how far she could go. But it wasn't that long ago that the idea of women's sports was considered, well, it wasn't really considered at all. When it came to sports, there were men who played sports. And that was pretty much it.

In 1973, only one in every 27 women played a sport in high school. Now, it's one in three. What caused such a dramatic change? We have to look back to the 1920s.

Women had just won the right to vote, but they were still a long way from being treated as equals with men. It seemed like the best way to correct that was to change the Constitution, to guarantee equal rights for women. So in, 1923 the Equal Rights Amendment, or ERA, was introduced into Congress. But for 50 years, it went nowhere.

In 1972, Congress responded to a groundswell of feminism by finally passing the ERA. Of course the amendment wouldn't be law until the states ratified it.

This is the time that we will make women and men fare equally in the greatness of America.

ERA! ERA! ERA!

But that process soon stalled. For the ERA's supporters, it was a bitter disappointment. But there are other ways to bring about change without changing the Constitution. President Nixon had already taken one decisive step. He issued an executive order, and with a stroke of his pen, he created expanded opportunities for women in the federal workforce.

Congress took further action. A provision was inserted into a funding bill, a section called Title IX, to ensure equal access and equal spending for women in federally funded education programs, including athletics. And the Supreme Court played its part, too, by strengthening and broadening Title IX's protections.

Over the past 40 years, Title IX has revolutionized women's sports. Christy Halbert was Claressa's coach when she competed in the Olympics. She calls herself a Title IX baby. It's a different world for women in sports than when she was growing up.

How did you feel when Claressa won gold in the Olympics? What was that moment like for you?

Oh, I knew she was going to win.

Yeah, having met her, I think I could have been equally confident.

Right. It was very exciting. Claressa was born at a time that she never knew that women couldn't participate in school sports, and couldn't get scholarships. And she's never known a time in her life when women could not box in her country. All of those laws had to change, and policies had to be changed for her to have that opportunity. So that is success.

Even without ratifying a constitutional amendment, our government could bring about big changes for women. Title IX was not just about sports. It had a profound impact on our society as a whole.

Ladies and gentlemen, the Olympic medalists!

It's amazing to think how far we've come from those days to these days. And how we've done it, using the same basic charter as our guide. But when the framers were writing the Constitution, they were worried less about its staying power, and more about, well, power. After all, they had just fought a war against a British tyrant, and they weren't eager to see homegrown tyranny in their new government.

So they separated power into three branches, and built in ways for each branch to keep the others in check. Three branches vying for dominance, but kept in balance. Sounds like your average day on YouTube. Well it's also the big idea behind our government.

Instead of having a King, one top dog, we have three hungry pooches, all out for the same chew toy, called power. It's a high stakes game, and it's another reason our constitution has survived.

Here's how it works. Congress can pass laws, but the president has an ace up his sleeve, the veto. The President can spend lots of money as head of the executive branch, but Congress has to approve his budget. As for the Supreme Court, it always has the final word on what the Constitution means. It can strike down a law passed by Congress, or an act of the president, by declaring it unconstitutional. When the Supreme Court says so, all bets are off.

So the Constitution sets up a divided government, in which the three branches have to cooperate to get anything done. Great. But our constitution also requires something else. It's not explicitly laid out in the text, but it was probably expected of us by our gentleman founders. You can call it good manners, or maybe respect. The executive has to respect the Congress, it has to respect the judiciary, and on around again into a functioning government.

It's sort of government by the consent of the guys who are governing to be governed by the other guys are governing. But what happens if one branch, or one guy in one branch, just refuses, and decides to do whatever the heck he wants.

It began during the presidential campaign of 1972. Five burglars were caught planting listening devices at the offices of the Democratic National Committee in Washington's Watergate complex. The men were linked to the committee to re-elect the president. The president in question? Richard Nixon. What followed was the two-year long Watergate scandal. Nixon had not actually ordered the break-in, but he orchestrated a cover-up. Hush money had been paid, the connections to the White House went deep.

The FBI launched an investigation. So did the Washington Post, and other newspapers. The Attorney General named a special prosecutor.

I welcome this kind of examination, because people have got to know whether or not their president's a crook. Well I'm not a crook.

When did you first begin planning the cover-up?

I don't think there was ever any discussion that their wouldn't be a cover-up.

The Senate convened a Watergate committee, and its televised hearings riveted the nation.

The misuse of power is the very essence of tyranny.

Mr. Nixon has acted more like an imperial ruler–

Lied repeatedly.

Treason, bribery, or other high crimes and misdemeanors.

Soon it was revealed that President Nixon had recorded everything that went on in the Oval Office. But when Congress, and the special prosecutor, demanded the tapes, the president defied them, citing executive privilege. Finally Nixon provided transcripts, but they were edited with lots of holes and gaps, and plenty of expletives deleted.

I have provided to the special prosecutor, voluntarily, all the material that he needs.

Congress, for the first time in more than 100 years, began to talk seriously about impeaching the President of the United States. Two branches of our government had reached an impasse. That's when the third branch, the Supreme Court, entered the fray, ruling that Nixon had to turn over the actual unedited tapes.

This was the moment of crisis. Would the President of the United States obey the court's order, even though he knew the tapes could cost him his presidency?

In the end, the president did turn over the tapes. They revealed that he was deeply involved in the scandal, and that he had lied to the American people. The House Judiciary Committee voted to recommend that the House impeach the president. Facing the certain prospect of removal from office, Nixon resigned on August 9, 1974. The first, and so far only, president to do so.

So Watergate was a national trauma. But it was also a test. The executive branch defied Congress, Congress went to war with the president, the Supreme Court intervened, and Congress ended up removing a president from office, forcing him out. And all of this happened without troops in the streets. 187 years after it was written, by men who never could have conceived of tape recorders or hidden microphones or televised hearings, the Constitution of the United States worked.

One reason it worked is that in our country, everyone has to obey the rules, even the president. But the Constitution doesn't always provide a lot of guidance for figuring out those rules. It's a masterpiece of brevity, which may be one of its greatest strengths.

In just four pages of parchment, the Constitution created our framework for government, but later generations have had to fill in a lot of the details. And whenever disagreements come up, the nine justices on the Supreme Court are the referees. They make the final calls.

But with so little to go on, how do they reach their monumental decisions? I thought I'd ask former Justice, Sandra Day O'Connor. It's not really every day I get to talk to a Supreme Court Justice, so before we get into it, I just had to ask her what really goes on behind closed doors, when the Supreme Court is just hanging out in their robes, deciding cases.

Would I enjoy it, if I could see it? Is it fun? When you guys sat around and argued stuff over?

You may get kind of tired if they have a lot to say?

Really?

You might get bored.

Did you ever get bored?

Absolutely.

Really? Did you ever take out your phone and started playing?

Never.

Never, no. Because I probably would. Which is why I shouldn't–

Well you can't. You have to pay attention.

So when you get to the toughest questions, of the constitutionality of a federal law, say, in the Supreme Court, what were your guiding principles for making that decision?

To be fair. You have to read the law, and try to fairly interpret the language, and understand what was intended by the drafters of language. Because you have to follow precedent. And become familiar with all of the cases in the past that are applicable.

Did you put a lot of weight into what's called original intent, what the founders or framers thought of as they wrote these particular–?

I think the first thing you look at is the language. What did it say? And then you look at the precedence. What has the court said about that provision in the past? And you try to follow those precedents if you possibly can.

Right, but it's sometimes difficult, especially when you get to larger constitutional issues, right?

Sometimes the questions are very tough, yes indeed. Very tough.

As the justices face their tough questions, they aren't all alone. Our Constitution maybe only four pages long, but there must be millions of pages of Supreme Court decisions to draw from, representing the collective wisdom of all of their predecessors stretching back to 1790. Of course, today's justices are often sharply divided about how to make their decisions, and how to interpret the Constitution. Whether to stick to the presumed intent of 18th century Americans, or interpret the document in the light of present day experience.

But even if the justices don't agree with each other, and even if we don't always agree with them, we abide by their decisions. They have the force of law.

Our brief constitution has lasted so long in part because we can make occasional repairs by adding amendments, then passing new laws. The three branches keep each other in check, and the system runs smoothly. Just as designed. And if you believe that, I have a large obelisk in Washington I can sell you.

Actually the structure is a lot more fragile than you might think. It all depends on a precarious balance, and there are times when that balance just does not hold.

[COMBAT]

Somebody once said that being shot at really focuses the mind. But during wartime, we are apt to lose our focus. And the Constitution can become a casualty. During the Civil War, for instance, Abraham Lincoln declared martial law, suspended habeas corpus, and tried Southern sympathizers in military courts. Actions some said were unconstitutional. Even ignored an order by the Chief Justice to reverse course.

In 1942, soon after the attack on Pearl Harbor, President Roosevelt issued an executive order that led to the internment of more than 100,000 Japanese Americans. Most of them American citizens. They were forced to abandon their homes, and live in desolate camps until the end of the war. Even though there was little evidence they posed a threat to national security.

After 9/11, America mobilized to wage a new war against terrorism. Executive power kicked into high gear.

One of the first actions we took to protect America after our nation was attacked was to ask Congress to pass the Patriot Act.

The Patriot Act gave the administration broad authority to carry out wiretap, surveillance, and the indefinite detention of suspected terrorists. There was bipartisan support in Congress, and the public, for expanding government powers to fight terrorism. But many civil libertarians said the law run afoul of the Constitution. Innocent people were caught up in the crackdown during the following years, including a young woman named Adama Bah.

So you were 16 years old, and it was 2005, and what happened?

I was sleeping in my bedroom, and federal agents came into the house. They walked me to the elevator, and my mom was like, where is she going? Where is she going? And my brothers and sisters– because my mom didn't know I was going to get arrested.

Adama was picked up on immigration charges. She was surprised to learn that, even though she'd lived in the US since she was a baby, her parents had brought her here illegally. But that's not the main reason the government was interested in her.

So your lawyer shows up?

And they start asking me all these weird questions. Have you ever took out a library book about bombs? About–

This is your lawyers asking?

Yeah, my lawyer's asking. And I'm like, no. They start asking me, have you ever visited Osama Bin Laden's website? I'm like, he has a website? And she goes, do you have any idea why you're here? I'm like, no. Why? That was the first time she told me.

What did she tell you?

She was like, they suspect you of being a suicide bomber.

And do you know why they thought that you might have been a suicide bomber?

To this day, I don't know.

Really, you have no idea?

To this day, I don't know.

Adama was held in a Pennsylvania detention center, and was subjected to frequent strip searches.

They put me in this little cell. And I'm nervous, and I'm scared, and I'm crying. I'm like, what's going on? I think at that moment, everything hit me. And I start washing my face, scrubbing my face. And I keep scrubbing and scrubbing and scrubbing. And I just broke down. And I just sat on the floor, and I just started crying more. Sorry.

After six weeks in detention, Adama was released. But the government has never revealed what evidence led them to believe she was a suicide bomber. Adama Bah's story is unsettling. But there were hundreds of reports of abuses against people detained as possible terrorists. Complaints of human rights violations continued throughout the Bush years and beyond.

President Obama faced controversy, too, for maintaining the indefinite detention of terrorism suspects, and for drone attacks and targeted assassinations, including some aimed at American citizens. Article II of the Constitution puts the president in charge of the military. But many believe the executive branch, in particular, has gone too far in fighting the war on terror. Jack Goldsmith headed President Bush's office of legal counsel.

Can you summarize what you think the constitutional obligation of the executive is in times of war?

Well let's just say, this is a perennial question. Lincoln struggled with this in the Civil War, Roosevelt struggled with it in World War II. Article II of the Constitution is very short. And the powers it confers on the president are very general, and they're broadly worded. Forever the country has been debating what those clauses mean, and it's still not settled. They're debated in every way. And in every war, there are a lot of people who think the president acts too aggressively.

Did we lose track of the Constitution in the panic after what happened there on 9/11?

There are many documented examples of the government going too far just after 9/11. Rounding people up that they shouldn't have. And in some sense overreacting. And that always happens at the outset of war– not making excuses, but it happens at the outset of the war. I don't think that those excesses taken alone, whatever they were, show that the Constitution wasn't working.

The Constitution is not just about protecting rights, it's also about ensuring that we can have national security. And the president at the outset of war, especially a war which he doesn't understand the enemy, we don't have intelligence, is going to do everything he can to keep the nation safe. And that means doing things that seem, from the perspective of hind-sight, to be wrong.

In the aftermath of every war, there is plenty to regret. While we debate whether the government has gone too far, people suffer, and so do our institutions and our values. But war isn't the only time system can break down.

Sometimes the Constitution is threatened, not by government action, but by government inaction.

Right now, for example, my home state of Illinois is having a huge fight in federal court with the other five states that border the Great Lakes. At issue is the Chicago River, right here. It flows from Lake Michigan all the way downstream to the Mississippi River. The other states want Illinois to block this river, to cut it off. Why? To stop the progress of a vicious, dangerous, alien invader.

These aliens may not be from outer space, but their impact on states economies could be earth shattering. They're called Asian carp.

These giant bottom feeders would destroy the region's $7.5 billion dollar fishing industry, as well as the 800,000 jobs that are supported by it.

But this is not only an environmental and economic crisis, it's also a constitutional crisis. To learn why, I've come to a stretch of the Illinois River at the little town of Havana. It's a nice place. And the fish are jumping.

Holy moly. Well now they're just showing off their numbers here.

So what are we doing out here? What's going on?

Well we're out on the Illinois River, and we're running some electric current through these shockers. It makes the Asian carp jump out of the water, so scientists can get a handle on how many fish are in the water here.

All right, I think I have the answer. There are a lot of fish in the– This is amazing.

The carp are spreading north, and heading for the Great Lakes. And the Great Lakes states are up in arms about it. But it seems that the only way to stop the carp is to block the flow of the river. And that, Illinois refuses to do. So how can these warring states solve their intractable problem?

Whenever anybody talks about these fish, and the possibility of them getting to the Great Lakes, it's like the apocalypse. It's like War of the Worlds, except the aliens will win in the end. It sounds like this is turning into a failure of the federal system. With these fish, the Constitution has met its match. You can't solve this problem.

The Constitution is absolutely up to the challenge. It's the current leadership in all three branches of government that's not taking their constitutional authority. Their constitutional responsibility. The Supreme Court can resolve the dispute between the states. Congress can step up and create a policy, or enact laws, allocate resources. And the president, as the head of the executive branch, can order his agencies to take more decisive action.

So the federal government has the constitutional tools to solve this problem. It has the mandate, essentially, to solve this problem under the framework of our constitution. They're just not stepping up and doing their job.

I know when the framers had a lot to deal with in Philadelphia, heat, bugs. They didn't have leaping fish attacking them.

I know I should love all animals, I'm an environmental lawyer, but I got to say. These guys are pretty gross.

Whoa! So that is the greatest threat to our nation since the Civil War right there? Ha ha ha! Your constitutional provisions are no match for me.

This is the grossest thing I've ever held in my hands. And I have small children. There, I just made the problem slightly worse.

It sounds like the Constitution hasn't failed us, as much as we failed the Constitution. It needs us, citizens and politicians alike, to remain true to the document. Or its words won't mean much. And that's true whether we're engaged in war, or battling over a bunch of slimy fish, or facing ordinary, everyday crises. Unfortunately, in Washington, dysfunction is now the status quo. Just turn on your TV.

Congress's approval rating is at an all-time low.

Americans are growing less confident about the direction of the nation.

People don't like Congress.

Do-nothing Congress.

This is gridlock of massive proportions.

We are on the brink of a partial government shutdown.

Shut it down!

What troubles me the most is that I've never seen such polarization.

Washington is more polarized than ever.

When we look around the government today, we see it's failing to function, we see laws can't get passed, we see the House can't agree with the Senate, and they both can't agree with the president. Was that built into the machinery? The possibility of that kind of disagreement?

The framers would have hoped that dysfunction would not have been built in to the structure of the government. But deliberation, absolutely.

It's not as if when they looked into the future, they said, it'll be great. Congress will hate the president, the House will hate the Senate, therefore nothing bad will be done. They assume that with these limitations, people would act in good faith, agree, come to a consensus, act therefore with moderation.

That is exactly right. And again, a very important pre-condition of their thinking was that they did all think of themselves as civil, virtuous statesmen. So partisanship and self interest, hopefully, would always take a backseat to the public good.

But the framers failed to predict one important factor that's not mentioned in the Constitution– the rise of political parties. In fact, George Washington hated the idea of political parties. He was sure they would c

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