Constitution USA with Peter Sagal

(Peter Sagal) Travel around America, and you're bound to run into the Constitution.

It seems to be everywhere.

(Sarah Palin) The Constitution... (Barak Obama) Our Constitution... (Rachel Maddow) The Constitution... (Pat Buchanan) You haven't read the Constitution...

This little document-- it means everything to us.

(Peter) We revere the Constitution, and for good reason.

When it was written in 1787, it was revolutionary-- an owner's manual for a new nation, setting up an entirely new form of government.

It's like the Big Bang.

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

(Peter) But more than two centuries later, many of us don't have any idea what the Constitution says.

(chanting) Yes on 8!

Of course, that's never stopped us from arguing about what it means.

[motor revs up] I'm Peter Sagal, and I am taking a journey across the country to find out how the Constitution works in the 21st century.

I think the federal government has just grown too big for its britches, and it's just time to roll some of that authority back.

(Peter) First time I've ever done this in my life.

In this episode: we call ourselves the United States of America, but just how united are we?

Freedom!

(Peter) The framers of the Constitution wanted to build a strong central government while preserving the power of the states.

So they designed a way to share the power.

An innovative system with a boring name: Federalism.

I thought it was just me who was confused, but apparently everybody's confused about this.

I want to find out whether this arrangement still serves us well today...

This is one thing the federal government did right.

(Peter) ...and how it's changed over two centuries of crisis and conflict.

You busybodies want to come into my house, my bathroom.

Wow.

(Peter) You could call this country the... but that would be hard to fit on a coin.

[guitar, drums, and bass play in bright rhythm] [blues harmonica plays softly] [bell rings] Hi welcome to Wildfire Harley, Ethan Arrow.

Hi, I'm Peter, how are ya?

Nice to meet you Peter.

Nice to meet you too, I'm glad you're here, I could use some help.

Great.

So um...I need a motorcycle.

Excellent, what are you gonna do with it?

I'm gonna ride it around America.

A long way, we're gonna go coast to coast, north to south, so I need something that's both good for going long distances, and well, bespeaks the national spirit.

(Ethan) Excellent.

(Peter) The Constitution is all around us, binding this country together.

But if I'm going to track it down, I'm going to need to cover a lot of ground.

Yeah this is a 2012 Road King.

Has a touring frame, 103-inch motor, 6-speed transmission, has these hard bags, which will hold anything you want to put in 'em.

So I could put my copy of the Constitution in there-- that's important.

Including the preamble.

Oh this--this is fancy Yeah, this is top of the line.

It has all these vents in here, which is nice.

The action back, so you have a little more flexibility.

I'm feeling sort of like a tortoise right now.

Do I look-- you and I have spent some time together, so I trust you-- do I look like a dork?

You are so conceited.

Yes, you do.

No, I'm not conceited.

You're not on a bike, so you're gonna look dorky, but when you're on the bike and all geared up, people'll be like hey, look at that guy, he's being so safe.

Is safe the new sexy?

I'm gonna practice my searching look, I want you to tell me what you think.

Ok.

I'm ready for it.

This is like, searching for the Constitution.

Little more eyebrow.

There you go.

Oh that's nice!

Yeah!

Man on a mission.

Go for it.

This is the one.

Let's do it.Let's do it!

(Peter) My quest begins in Northern California.

It doesn't look like one, but this place is a constitutional battleground, where the delicate balance between state and federal power is going up in smoke.

(Peter) The family farm.

What could be more American?

It's what the founders had in mind.

And this is a great one.

You have a couple over here been growing their crop for a long time, bringing it to market.

Problem is, this is cannabis, it's medical marijuana.

Now, here we are in northern California, in the Emerald Triangle.

And this is perfectly legal here.

The owners have been very scrupulous about following California state law-- makes it cool.

However, under federal law, this is a terrible crime.

At any minute, really, federal authorities could appear here and arrest everybody, seize all this, and send them all to prison.

225 years ago we approved and created a document that created this system-- states; federal government-- sometimes they work together, sometimes they're in conflict.

This is the conflict-- is it legal?

Is it illegal?

Is it both at the same time?

(Peter) The marijuana they grow on that bucolic little farm ends up in a place like this.

Is that gonna be all today?

(Peter) It's the Harborside Health Center in Oakland, California.

And everyday hundreds of people come here to legally get their medicine.

This is the dispensing area here.

(Peter) Steve DeAngelo, Harborside's cofounder and Executive Director, has created a sleek, scientific apothecary.

What are the typical things people would go to the doctor for to get cannabis prescribed.

In California it ranges anywhere from cancer, HIV, multiple sclerosis, cerebral palsy, really serious diseases like that to more ongoing diseases that may not be so acute, but are chronic.

I created Harborside Health Center to serve as a model to demonstrate how cannabis could be professionally distributed.

[beep] This is where our concentrates are stored in alphabetical order starting with Afghani Bullrider Bubble.

We have thousands of varietals of cannabis, and each varietal is laboratory tested.

(man) 16.74% THC.

You can smell some zesty, fruity kind of mango things going on there.

You sound like a wine guy.

This is all very professional and retail.

I mean, if you were selling toothpaste you'd be lucky to be doing it this well.

(Steve) Absolutely-- I want the Harborside brand to scream legitimacy.

I'm sorry, I'm standing here with a trayful of marijuana plants, that's never happened before, it may never happen again.

This is great, this is beautiful, you obviously have an amazing system for distributing medical marijuana, everything you just showed me is in violation of federal law.

That's true.

Isn't that a problem?

Yeah, it's a huge problem, I spend my life terrified basically, I don't know when I come to work in the morning, whether I'm going home at night or whether somebody's gonna take me out of here in handcuffs.

It seems like you've got a classic issue of state power versus federal power going on here, because you exist in different spheres depending on whether you're a Californian or an American.

Well, it's really crazy-- as a Californian I'm considered a respected citizen.

Harborside paid over $3 million in taxes last year.

We are one of the top 10 taxpayers in the city of Oakland and the number two retail taxpayer in this city.

So yeah, you're an economic empowerment zone.

Yeah, but under the laws of the United States I'm a criminal deserving of the death penalty.

Really?

Death penalty?

Why?

Death penalty-- for every 60,000 cannabis plants that you possess or distribute you can receive the death penalty.

I've distributed well over a million of them.

(Peter) It seems crazy-- how can the state of California and the federal government be so at odds?

Is this what the founding fathers had in mind?

(Peter) From what I've heard, if you've got a question about the Constitution, the man to talk to is Akhil Reed Amar of Yale University.

He's like the Yoda of constitutional law.

(Akhil Amar) Come in!

Hi!Hey, how you doing?

I'm fine!

I've been wandering around looking for the Constitution, I'm told it's in here.

It is!

Somewhere.It is.

You have it hidden?

It's everywhere.

Well, here's, here's one.

This looks very battered.

You can have that one.

Really?

This looks like a personal, battered copy.

Sure, I have a whole bunch of personal, battered copies, Let's see here-- my saltine crackers, but here's another-- this, oh this-- talk about battered!

There you go, that's... Oh wow.

...now that is battered!

That is one that has been, duly legislated, I think.

So what is your attitude about the original document?

My view of the founding is the following-- It makes everything possible.

It's actually the most democratic deed in the history of planet earth-- it's that impressive.

The world will never be the same.

It's the hinge of history.

I divide history between the millennia that happened before 1787, and then, 200 years since.

It's like the Big Bang.

The momentum of this revolutionary moment, bringing a people together to govern themselves, will ripple out and give us the world that we all live in today.

(Peter) Okay, so the Constitution is a turning point in history.

But what were we turning away from?

What came before?

And why did it need to change?

(Akhil) Before the Constitution comes along each state is basically almost its own nation.

And the 13 states are connected together by a loose treaty, a league, an alliance.

Kind of like NATO or the EU.

(Peter) Akhil's talking about the Articles of Confederation.

That was the first framework for American government.

It was drafted back in 1777 during the American Revolution.

And it was so loose, that they actually called it a League of Friendship.

As if the states weren't really committed, they were just friends.

The Confederation Congress couldn't levy taxes, and even raising an army was a challenge.

It had to beg the states for contributions.

In fact it couldn't do much of anything unless at least 2/3rds of the states were in agreement.

And with this crowd, agreement was not a common occurrence.

(Akhil) When the Constitution comes along and proposes an indivisible union and like, why would you go for that?

The states had been colonies for decades, in some cases centuries before the American Revolution, they were separate one from the other.

There are huge differences between-- a thousand miles-- huge differences of culture between Georgia and Massachusetts.

Were they that different?

Because you think of them as common language, you think of... A thousand miles apart-- very different religious denominations.

It would be as if today, honestly, the only counterpart would be if someone actually proposed genuine world government with an army of the world and a president of the world and a legislature of the world, and there's only one thing that could make you go for that today.

And that's if the Martians were coming.

I was about to say, the classic alien Invasion.

That, and you might say, well, we don't love the Chinese but they are Homo sapiens, and so okay, we're in.

So that was the argument 200 years ago.Martians?

Martians are the Brits, and the French.

Here's what George Washington and Alexander Hamilton say, in effect, we won the American Revolution by this much.

We almost lost it.

It was a triple bank shot to win at Yorktown and all the rest.

And if we don't get our act together we're going to lose the next war.

But if we can create one indivisible nation, we will control the continent, we will be free, and no one will be able to push us around.

[engine revs; guitar &drums play country rock] (Peter) So with our young nation on shaky ground, the states sent their best and brightest representatives to Philadelphia.

They came to fix the Articles of Confederation and also to make sure that 200 years later, this city would have a booming Constitutionally- themed tourist trade.

[flutes and drums play in rhythmic march tempo] Everybody smile; General, look severe.

One more one more, excellent.

Oh yeah.

One, 2, 3... Oh, oh that was good.

All right, here we go.

(Peter) This is the place where it happened back in 1787.

Independence Hall, where the delegates, our founding fathers, the framers of the Constitution, gathered to... well, to do what exactly?

To find out, I'm meeting with historian Richard Beeman, who literally wrote the book on the Constitutional Convention.

As best we know, uh, it's south to north.

South Carolina, Georgia, Maryland, North Carolina, Delaware, Virginia, and here's Massachusetts, New Hampshire delegations.

(Peter) Who called the convention?

Who decided?

Was there an individual who said we must gather together?

(Rick) Well, a group of delegates from the Continental Congress most notably Alexander Hamilton, and James Madison.

They had seen the ways in which the government under the Articles of Confederation had put this fragile union in danger.

The lack of the power to tax, the deepening debt, nine states had their own navies, Shay's Rebellion in Massachusetts, so there's civil unrest.

People actually rising up against the government That's right, so they really do have a sense of, of crisis, that they've got to do something to strengthen this government.

So how soon into the beginning of their deliberation did they arrive at the consensus that it wouldn't be enough to fix the Articles, they needed to scrap them and start again?

This is James Madison's great strategic ploy.

He had come to the convention with his own plan that he worked on much of the spring of 1787.

And that plan called for a scrapping of the articles altogether and the creation of, in their words, "a supreme national government," with a supreme legislature, executive, and judiciary.

And that set the tone for the debate from that time on.

(Peter) They deliberated in secret with the windows and doors closed to prevent leaks.

The arguments and debates proceeded for 4 summer months in a room without ventilation, air conditioning or indoor plumbing, and everybody was wearing wool vests.

And they managed to create a whole new form of government.

Never before have so many owed so much to people who smelled so badly.

Madison's goal of creating a strong central government met stiff opposition at the start because the states didn't want to lose their power and autonomy.

Besides, they didn't really trust each other.

The slave states of the South were suspicious of the free states up North, and a big state like Virginia could step on a small one like Delaware on its way to have a beer with New York and never notice.

It took weeks of rancorous debate just to come up with a plan for how the states would be represented in the new Congress, but they finally forged a compromise.

In the House, there would be representation based on population, giving more power to the larger states.

But in the other chamber, each state would have two and only two senators.

So in one house the states would have power proportional to their size, in the other, all would be made equal.

Try stepping on Delaware now!

Once they finished hammering it out, the new Constitution created a government that was very different from the one it replaced.

Under the Articles, there was no chief executive, now there would be an elected President, and there would be a federal judiciary too, with a Supreme Court.

Unlike the old Confederation Congress, this new government would have the power to raise an army on its own, and levy taxes to pay for it all.

It could issue currency, control foreign trade, and regulate commerce "among the several states," that is, interstate commerce.

It could also make all laws "necessary and proper" to carry out its assigned powers.

And the framers added what we call the Supremacy Clause: federal laws would trump state laws.

But by listing the government's powers, the framers of the Constitution also limited them.

They said, "This is what the government can do, and no more."

The states would have their own police forces, control elections, run their schools, make and enforce their own laws as they saw fit.

So while the federal government could, say, raise an army and invade Canada if it liked, it couldn't arrest people for littering or give them a parking ticket.

The framers were striving for a balance of power.

Did they come up with the perfect compromise, that is, one that makes absolutely everyone unhappy?

There's two conflicting points of view-- that the constitution created a limited federal government that could only do things x, y, and z the enumerated powers, or the Constitution was intended to create an enormously powerful federal government.

Can you resolve that in terms of the intent of the framers?

No.

[laughs] Well, fat lot of good you are, sir!

Nor could they, because that was their fundamental dilemma.

They did not want to create a government of enormous power, but they did want to create a government of-- with real energy.

(Peter) To stitch together a permanent union, the framers forged a delicate balance between the federal government and the states.

But there was another source of tension.

It would end up pitting one group of states against another, in a bitter struggle for the nation's soul.

Less than 75 years after the Constitution was drafted, the union, and the Constitution itself, faced collapse.

As the nation expanded and new states were added, the opposing interests of North and South-- free states and slave states-- were finally impossible to resolve.

For the Southern States, the election of Abraham Lincoln in 1860 was intolerable.

Lincoln's opposition to slavery convinced them that they would lose their grip on power, and that their whole way of life was at risk.

Their response was to secede from the union.

Lincoln insisted that secession was illegal--unconstitutional.

He called it "the essence of anarchy."

He believed the union was "perpetual," that it could not be broken.

So he led the country into war in order to save it.

[loud explosions] Four years of brutal conflict left 3/4 of a million Americans on both sides dead-- far more than in any other conflict in our history.

But with the end of the Civil War, slavery was abolished, and the idea of federalism had emerged victorious.

150 years later, fortunately, the union remains intact, but the tug of war over power is still going on.

Not with guns, anymore, but often, about guns.

[motor purrs] (Peter) I've come to Missoula, Montana, to talk to Gary Marbut.

(Gary) Hi!

(Peter) He's one of the country's most outspoken advocates for gun rights.

(Gary) You've gotta be Peter.

(Peter) I am.

Peter Sagal; a pleasure to meet you.

You must be Gary.

Welcome to Montana.

It's a pleasure to be here.

My god, it's beautiful!

Let me show you around.

(Peter) Please!

This is the rifle I shoot in long-range precision rifle, competitively.

This is the ammo I was telling you about I manufacture for it.

I say this as a man who owns like six bicycles, but why does a man need so many rifles?

Um... because I live in Montana!

[laughs] (Peter) Gary heads the Montana Shooting Sports Association, a lobbying group that pushes for state laws on behalf of gun owners.

So guns have become your overriding passion, is that right?

Well, I got involved in all kinds of things political.

I was involved in property rights and tax limitations all liberty-oriented stuff.

So I decided then I was going to have to focus on that one aspect of freedom which I thought was most important, most cornerstone to the whole concept of liberty.

[crack!

of rifleshots] (Gary) With your right thumb, push down and then back.

(Peter) As they say, when in Montana do as the Montanans do, and apparently what Montanans do is practice defending themselves from an invasion of cardboard people.

(Peter) First time I've ever done this in my life.

(Gary) Are you ready?

(Peter) I'm ready.

(Gary) Stand by.

[electronic beep] [three gunshots] [two gunshots] (Gary) Okay, the button down below.

[two gunshots] (Gary) Trigger squeeze, trigger squeeze-- there you go.

[three gunshots] (Gary) Okay.

This one cost you an extra 10 points for winging the good guy.

Frankly, they were asking for it.

What are they doing out here?

This is crazy!

People are shooting guns, they shouldn't be standing here!

When the shooting starts the hostages should get down.

Exactly--they haven't seen the right movies, apparently; I don't know.

You just told me that based on your own research, the average, average gun-owning family in Montana has 27 guns.Yes.

So this is a gun-owner's paradise.

And we are here under the federal Constitution, and everything's fine.

So what's the problem?

No problem.

There's no problem?

Life is good.

So why are you working so hard to change things?

No, I'm working to improve things.

(Peter) Gary Marbut has made a name for himself by fighting the power of the federal government to regulate firearms.

Surprisingly, he's not focusing on the Second Amendment of the Constitution, the right to bear arms.

Instead he's targeting the Commerce Clause; that bit about Congress regulating interstate commerce.

Gary insists the federal government has distorted the meaning of the Commerce Clause.

And he hopes to correct that with what he calls the Montana Buck-a-roo-- that's a .22-caliber single-shot bolt-action rifle, designed to give young Montanans their first taste of firearms.

Gary believes that if his Buck-a-roo rifle is made in Montana and sold only in Montana, never crossing state lines, the federal government has no power to regulate it.

He's even managed to get his plan enshrined in Montana state law.

Uh, give me a little bit of your background.

You're not a lawyer, by training?

No, I'm not.

But you've had how many laws passed by the Montana state legislature?

(Gary) 58.58.

Is there stuff that you want to do as a free American that you feel the federal government is keeping you from doing?

Well, we have the right to bear arms, but we can't get 'em without government permission.

And specifically, government permission to license firearms dealers.

To manufacture, to distribute, to sell at retail, to do any of that stuff you need federal permission.

I think the federal government has just grown too big for its britches and has assumed far more authority than has ever been intended.

It's just time to roll some of that authority back and turn many of the things the federal government does over to the states.

Why do you think that it's more appropriate for the states to have the power?

The state government is much more subject to the will of the people because it's closer to the people.

So I think that it is less hazardous to the people's liberties.

The states are not mere political subdivisions of the federal government, they are not--it was never intended to be that way, the states were there first, the states were the originators of the federal government, they are the ones that gave it its charter with specific duties and specific restraints.

So I don't think that by some theory or wish you can change that to suddenly make the federal government the master and all the states the servants.

(Peter) Gary Marbut will tell you he's not coming up with a new idea here, that it's the original notion behind the Constitution.

And many Americans, including Steve DeAngelo, agree that the Federal Government should just leave the states alone.

In fact, Federalism does give the states a lot of freedom to do their own thing.

Supreme Court Justice Louis Brandeis called the states laboratories, laboratories of democracy, experimenting with innovative programs to solve social and economic problems in their own ways.

And if they succeed, those programs are often copied by other states or even by the federal government itself.

For instance, back in 1869, the Wyoming Legislature gave women the vote.

Eventually other states followed suit, and then the whole country caught up, with the passage of the 19th Amendment, that gave all women the right to vote.

California led the nation in enacting tough standards on air pollution, and the federal government applied similar regulations nationwide.

In health care, the program enacted in Massachusetts under Governor Mitt Romney served as a model for what we call Obamacare, the Affordable Care Act.

[organ, bass, and drums play in lively dance rhythm] (Peter) You might not think of Las Vegas as one of these laboratories of democracy, but it kinda is.

It's conducting an experiment in freedom.

Nevada set out on its path of innovation back in the 1930s.

It passed the most liberal marriage and divorce laws in the country, making it a big draw for people who wanted to get hitched or unhitched in a hurry.

And it legalized gambling... giving rise to a lucrative casino industry.

It's also the only state in the union where prostitution isn't prohibited.

For Nevada, legalizing vice paid off.

Sin was a great stimulus program.

But even if Nevada can go its own way, it can't go it alone.

Don't forget, most of the state of Nevada, including Las Vegas, is a desert.

Making that desert bloom takes water, lots of it.

And if you want to see where that water comes from, just get on your customized Harley and ride 35 miles east of Las Vegas to the banks of the Colorado River.

Everybody seems to be trying to figure out what the founders could or could not have imagined.

Oh, the founders never could have conceived this!

Oh, the founders never could have imagined that!

All right, I'll play.

I'm willing to say that if they could see it, the founders never would have believed that.

That is Hoover Dam.

At the time of its completion in the 1930s, it was the was the largest, most massive concrete dam ever built.

The most expensive public works project ever undertaken in the United States of America.

To this day it provides hydroelectric power to Southern California.

It provides 90% of the water to Las Vegas, millions of gallons for their fountains and their lawns.

So it took the pharaohs to build the pyramids, we know that.

It took Louis XIV to build Versailles.

But it took the duly elected, Constitutionally-empowered, Federal Government of the United States of America to build Hoover Dam.

To the people who run Hoover Dam, it's a lot more than a pile of concrete.

It's a metaphor for how the federal government improves our lives.

We're in Nevada right?

So why didn't Nevada come here and build their own damn dam?

You have to remember back in the turn of the century up until the '30s, Nevada and Arizona had a very small population, a very small economy.

They didn't have the ability moneywise or technical ability to build this.

So they couldn't have done it.

They were a bunch of guys living in sod huts.

No, you needed the power of the federal government.

Yet at the same time, Nevada has grown tremendously.

Correct, the growth of parts of Nevada, Phoenix,LA, San Diego, due directly to the power and water we provide.

So you give tours here, do you ever get in any arguments about federalism issues with anybody else What'd they say?

Sure, I won't call it argument, a discussion, people talk about how the federal government shouldn't do this, but my opinion this is one thing the federal government did right.

It's right up there with the Louisiana Purchase and the purchase of Alaska.Right.

It's a federal issue, interstate commerce.

Growing the economy of the United States.

What else-- how could you get even more constitutional than that?

That's the basic power of the federal government.

(Peter) This supersized expression of federal power came into existence during a national crisis.

I'm talking about the Great Depression.

The early 1930s-- a time when the economy had collapsed, and the country very nearly collapsed along with it.

More than 1/4 of the work force wasn't working.

Banks were closed, factories and businesses shut down.

The cities and states went bankrupt, unable to relieve the suffering.

Unemployed veterans marched on Washington, they battled federal troops in the streets.

Some said the country was on the verge of a violent revolution.

Then in 1933, President Franklin Roosevelt came into office, and he launched his own revolution: a great experiment he called the New Deal.

For 150 years, the federal government had pretty much let the economy manage itself.

FDR changed that.

He pumped money into the economy to try and stimulate growth and relieve poverty, and he started massive federal building projects to put people back to work.

(FDR) The men and women who are unemployed are our problem.

We must help to get them back to re-employment.

(Peter) As Roosevelt nursed the economy back to health, he created an alphabet soup of federal agencies-- there was now an economic safety net; an old-age pension system called Social Security; unemployment insurance; the FDIC to ensure bank deposits.

Of course, it did not happen without controversy and opposition.

Some people called FDR a communist, and said his programs were a threat to personal liberty.

And a few of his pet projects were even declared unconstitutional.

But the expansion of federal power, and the federal bureaucracy became a fact of American life.

Then in the 1950s the federal government began to use that power to protect peoples' rights.

(Minnijean Brown) It only rarely bubbles up how frightened we were.

The mob is here.

Yeah, did you pull up right here in front of the school?

Uh yeah, about here.

And Elizabeth, the girl who's in all the photos got off the bus and tried to walk.

I remember shaking completely and-- 'cause they're screaming "kill them, lynch them," just horrible things.

I'd never been hated in my life...

Either before or since.

[people chanting] We want Faubus... (Peter) On September 4, 1957, when 9 black students tried to enroll at Central High, they were blocked by protestors.

The governor of Arkansas sent in the National Guard to keep those 9 kids out of the school.

President Dwight Eisenhower was ambivalent about enforcing civil rights-- he felt that states should deal with the issue.

But the Supreme Court had ruled in 1954 in Brown versus Board of Education that school segregation violated the Constitution.

And Eisenhower was determined to enforce the law.

He federalized the Arkansas National Guard, his prerogative as commander in chief, taking them out of the hands of the Governor and On September 24th, he ordered the deployment of 1000 U.S. Army troops from the 101st Airborne to provide security for the 9 black students.

And those students were escorted to class every day.

One of the 9 students was Minnijean Brown, now Minnijean Brown-Trickey.

And one of the soldiers who kept her safe was a 23-year-old lieutenant named Marty Sammon.

There she is.

(Minnijean) Yay!

Minnijean!

(Minnijean) Power to the people!

(Marty) How are you?

How are you?

My God.

I hope you didn't get that.

You got taller, and I got smaller.

How you been young lady?

How are you?

I'm not bad.

Fancy meeting you here.

(Marty) Yeah isn't that funny?

I spent a little time here.

(Minnijean) I think Marty's my number one fan, right?

I'm his number one.

(Marty) Definitely, definitely.

[with emotion] When I first met him, I think I started crying, which is something I'll do when I need to, ah-- because he symbolized something very important to me.

(Peter) Yeah, and Marty, you were the tip of the spear, right?

You were sent here by the federal government.

What was it like for your soldiers then, for the guys in your unit to be pointing their guns at American citizens?

That was what they were ordered to do.

There was really no compunction?

They were like oh, fine, whatever, this is the order.

Yeah, and they just stood together and it was-- you cover me, I cover him, nobody touches these kids-- that's what it's gonna be.

(Minnijean) When we got out in front of the school, the troops just surrounded us.

Did they say anything to you?

Like Minnijean, we're from the government, and we're here to help?

I think somebody probably said something.

(Marty) We're the government we're here to help you!

Did a phalanx of armed men, rifles with bayonets...

Surrounded us, came up the steps with us.

(Peter) Walked right into the front door of the school.

(Marty) Not in the back, like the Arkansas police.

Right up the front.

You can see it, it's just the most beautiful thing.

(Minnijean) It was a pretty good feeling.

(Peter) Yeah, did you feel like, did you feel, well, how did you feel?

Um... well, I mean, I was 16, I felt like, look at me now.

You know?

It felt like revenge?

It felt like... Well it felt like, uh, not revenge but it felt like resistance.

And that's really key, that these people are helping me to do what I came to do.

I came to go to this school.

[piano &guitar play softly] [motor revs] [engine accelerates] (Peter) Looking back now, the decision to send in the troops seems like the right one.

Sometimes the federal government has to get involved, to resolve a crisis or protect the civil rights of its citizens.

But where do you draw the line: between federal help... and federal interference?

My buddy P.J.

O'Rourke, a journalist and political wit, will definitely have an opinion about this.

(P.J.)

There's a temptation to go to the federal government to solve every problem that comes up.

The federal government's a big tool.

Really powerful, really effective one, you know, I mean it is just a locomotive.

Good for invading other countries.

Oh absolutely.

Building large dams.

But you know, when you've got a problem it's always tempting to use the largest tool possible.

Men like tools!

You know, men like big powerful tools.

We don't have to get Freudian about this, you know-- you give a man a cordless electric drill, you'll get holes all over your house.

[laughs]Exactly.

But once you create something, long after the problem has gone away, the institution that you created to solve that problem remains.

And so once you create a center of government, power, and privilege, it'd be impossible to not have the danger of the government being a little bit too big, a little bit too expensive, maybe a little bit too intrusive.

(man) Okay, thank you all for coming.

Welcome today's witnesses.

We're here today to talk about Bill S-398.

The bill would increase or establish new efficiency standards for nearly 20 types of appliances.

(Peter) In March 2011 there was a constitutional showdown on Capitol Hill.

In an Energy Committee meeting, Sen. Rand Paul of Kentucky charged that federal regulations violated his freedom to choose... a toilet.

And he had some choice words for the bureaucrats who write those regulations.

I really find it troubling, this busybody nature, that you want to come into my house, my bathroom, my bedroom, my kitchen.

Frankly my toilets don't work in my house.

And I blame you and people like you who want to tell me what I can install in my house, what I can do- I can help you find a toilet that works.

[laughter] Are you gonna pay for it?

Everything costs more, to go back and retrofit the toilets that don't work, that no bureaucrat understood or flushed before they made us use 'em.

You busybodies always want to do something to tell us how we can live our lives better.

Keep it to yourselves.

(Peter) Is Rand Paul right?

Is the federal government going too far?

Or do federal regulations like these serve a purpose?

I need to talk to a toilet expert.

Cheryl Crowther at the Thomas Somerville Showroom.

This one is a dual flush; you'll notice up here it has two little buttons.

The smaller button will flush .8 gallons of water, the larger one 1.6 gallons.

If you need a real rush of water, can you press both and get super flush, or does that not work that way?

No, it's still gonna flush the same thing.

But is the maximum still 1.6 gallons?

Yes it is.Interesting.

So this law was passed in 1992, and it decreed that any toilet sold after a certain date in 1994 would have to be 1.6 gallons per flush.

There was a period of time in which toilet technology hadn't yet caught up.

If you were one of those unlucky people who renovated your bathroom or built a new home, you were stuck with an inadequate toilet that didn't do its job and it really was the federal government's fault.

Yes.

I think for a lot of the consumers out there that was a tough time.

It was a tough time for us as retailers as well.

'Cause you were selling toilets that didn't really work for people.

It says that there's an exception for blowout toilets, you get 3.5 gallons per flush under the 1992 law.

What is a blowout toilet and where can Rand Paul get one?

Okay, [laughs] that's really a commercial toilet, that's not something that you would normally put in your home.

I'll say speak for yourself, in that regard.

(Peter) Seriously, when you get right down to it, Rand Paul may have a point.

Because when it comes to regulations, toilets are just the tip of the iceberg.

And here's the iceberg.

The Federal Register contains all the rules and regulations issued by the federal government.

This is the 2011 edition: 82,414 pages.

And its regulations delve deeply into our lives, well beyond toilets.

For instance: Page 12,527-- this regulation classifies milk as an edible oil, so farmers are subject to rules on oil spills.

Or how about this one from page 27,543, which makes it illegal for anybody but licensed dentists to transport another person's dentures.

The expansion of federal regulations is largely based on a broad interpretation of the Commerce Clause.

That's the part of the Constitution that gives the feds power over interstate commerce.

When people complain about the federal government sticking its nose into their business, it's almost always laws drafted under the commerce clause that they're complaining about.

And if you spend much time listening to congressional debates on the subject, you're likely to hear these 3 words... Wickard vs. Filburn... Wickard v. Filburn...

It started with Wickard v. Filburn... (Peter) They're talking about a Supreme Court case, involving an Ohio farmer named Roscoe Filburn.

It was the middle of the Great Depression, and Farmer Filburn was looking for a cheap way to feed his livestock.

So he planted 23 acres with wheat, and that's when the government stepped in.

Good morning, how are ya?

To shore up wheat prices, the federal government had placed limits on production.

And Roscoe Filburn's wheat crop exceeded those limits, by exactly 239 bushels-- so they hit him with a $117 fine.

But Filburn insisted he was growing wheat just for his own use and for his hungry animals, and that it never entered into commerce at all, much less interstate commerce.

The case ended up in the Supreme Court, which found against Roscoe Filburn.

The justices held that even though this particular farmer's wheat did not enter the market, growing his own meant he was refraining from buying wheat from somebody else.

And if lots of other farmers around the country did the same thing, it could drive down wheat prices, and that would affect interstate commerce.

That decision came down in 1942.

And it opened the floodgates to federal regulation of anything remotely related to commerce.

The precedent of Wickard v. Filburn has served as the legal underpinning for federal laws covering everything from labor standards, to consumer protection, to endangered species.

And it was at the center of the debate over the Affordable Care Act in the spring of 2012.

The Filburn case is the outer reach of the Commerce Clause.

Free...dom!

Free...dom!

So Roscoe Filburn had a barn.

Ee-ei-e-ei-o Exactly, much like this one.

What did Wickard v. Filburn do in terms of the broader relationship of people to the Federal Government?

Once the Federal Government can reach inside and tell even a farmer like Roscoe how much wheat he can grow to feed his own livestock, then the Federal Government seems to be able to tell you to do anything and that's not the power originally the Federal Government had.

It was the states that could basically regulate your activity, and so that really changed the relationship of the citizenry to the Federal Government.

So here's my question, though.

Your concern I know is with liberty.

The idea that we have rights that we have liberty that, that the government cannot take away from us.

But it does seem to matter to you which government does it.

There are things that the state government can do, and you're cool with that.

If the state government wants us to... No, I may not be cool with that.

You're not cool with that.

Maybe.

Depends what it is.

But why we need a division is because once you go to the national level and it's one size fits all for the whole country and you don't like that, where are you gonna go?

I mean where-- if you're an individual, gonna go, where is your business gonna go?

You gotta leave the country.

But if you're doing it at the state level and you don't like that, just go across the state line and do it some way different over there.

In other words, the ability to exit, the ability to leave, the ability to vote with your feet, is a constraint on what local governments can do.

Once you go to the national level and it's one size fits all for the whole country and you don't like that, where you gonna go?

(Peter) So Randy Barnett insists that the federal government is constraining personal liberty by making decisions for everyone at once.

Yet some people believe just as strongly that there are times when only the federal government can be trusted to make the right choices.

Jody Freeman helped write environmental regulations, when she worked for the Obama Administration.

Jody and I are crossing the Golden Gate Bridge.

It was built with local money, but it's where a federal highway merges with a state highway.

And it connects the city of San Francisco with the Golden Gate National Recreation Area, part of the National Parks System-- perfect place to talk federalism.

So everybody's been asking us, what right does the federal government have to tell us what to do?

So what right does the federal government have to tell us what to do?

It's an interesting question, actually the Constitution, in some areas, lets the federal government tell us what to do, and it's not a bad thing.

You sort of need it for some things.

Like what?

For example, when the federal government sets efficiency standards, like they do for toilets or for appliances like your fridge, or microwave, or your light bulbs.

What they're doing is they're creating incredible gains for the whole society.

So if you can actually put more efficient light bulbs in, then you save a huge amount of money for consumers.

Everybody's electricity bills go down.

Also we save a bunch of pollution that we cause by burning the energy to create the electricity.

And no one person, again, sort of has the incentive to do that, and sometimes they lack the information to do it, so that's the sort of justification for the federal role in setting those kinds of standards.

But isn't there a competing interest of liberty?

Let's say a state like Kentucky has a lot of coal and it makes a lot of economic sense for them to burn their coal, make their energy.

Why shouldn't they be allowed to say, we think it's more important to have coal that'll create more pollution.

It's our choice!

We're free people.

Why shouldn't they be allowed to do that?

That's the argument you hear a lot-- that the states should get to choose what level of protection they want.

But the problem is that, when you burn that coal, and you produce sulfur dioxide, and soot, and smog, that drifts from Kentucky, or the state you're imagining, to other states, and you create a cross-state problem.

And that's the classic situation where you need the federal government to solve this cross-state problem that individual states can't solve themselves.

(Peter) It seems like we've been having this same debate for 225 years.

Trying to figure out who should win the tug-of-war between the states and the federal government.

The issues may have changed, but the struggle for power just goes on and on.

Isn't this like, the age-old argument?

"Who's in charge here?"

And have we ever resolved it?

I wouldn't say we've ever, ever resolved it, finally.

And actually, I hope we don't, because it's the most healthy dynamic that we have in the Constitution.

It produces a lot of good results.

So I actually think this debate is a good one, the one you're finding all around the country, I think it's a good one, it's one we ought to be having.

I think what's fantastic about it is, we're having this in the context of a legal debate.

That is, we're concerned about what the law oughta be.

All you have to do is look around the world to places where that debate is taking place with arms, and not taking place on the terrain of the law, to know that I think we've got a system that works pretty well.

(Peter) Jody Freeman makes an interesting point, that despite all the tension, the system still works.

In fact, the tension might be part of the system.

Like a lot of things, this reminds me of an old Jewish joke.

There's this particular congregation that's tearing itself apart over an argument.

Should you sit or should you stand during a particular prayer?

They're arguing about it constantly, they're insulting each other, the families are like, refusing to speak to each other-- it's terrible.

The rabbi doesn't know what to do but he finds out that the oldest living member of the congregation is down the road at the home for ancient Hebrews, so he goes down there, he finds the old guy, he says, "Sir, is it the tradition in our congregation that we rise during this prayer to show our respect to God?"

And the guy says "No, that's not the tradition."

The rabbi says, "Oh, it must be the tradition then that we remain seated during the prayer to show our humility."

The guy says, "No, that's not the tradition."

The rabbi is very upset, he says, "But there has to be an answer, 'cause we're tearing ourselves apart in argument, nobody can get along because of this fight!"

And the guy says "A-ha!

That's the tradition!"

[engine revs] (Peter) I guess arguing is an American tradition too.

And we never seem to run out of things to argue about.

But somehow it works.

After all, the framers of the Constitution didn't promise us a perfect union, just "a more perfect union."

We all cherish our rights in different ways.

That is the sound of freedom.

But what happens when our rights come into conflict?

How could those justices in black robes steal our property rights from us.

The majority rules-- or it should.

(Peter) And how is modern technology changing our freedom?

Is privacy a thing of the past?

Next time on "Constitution USA" with me, Peter Sagal.

To learn more about the Constitution visit the series website... "Constitution USA" with Peter Sagal is available on DVD.

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