Transcript

Announcer:

Listener supported, WNYC Studios.

Jad Abumrad:

I'm Jad Abumrad. This is More Perfect, season three. That right there what you're hearing are the Caminas, a South Asian American punk band that chose the Ninth Amendment. You can hear the whole song at themostperfectalbum.org. We have released an album as I have mentioned in the past two episodes. We're really excited. We made this album called 27: The Most Perfect Album, where we asked a bunch of musicians to write a song that interprets one of the amendments to the US Constitution. Bunch of different artists participated. Again, you can hear the whole thing at themostperfectalbum.org or on iTunes, Spotify, all the stuff.

Jad Abumrad:

On the podcast, we are releasing what I like to think of as audio liner notes to the songs, the short little stories that illuminate some aspect of the amendment. Now the first date amendments were very clear: right to free speech, right to bear arms. Third amendment, whatever. But then, you get to the amendments that talk about the rights you have when you are arrested by the police. Super matter of fact, concrete. But then things get spacey, unhinged, untethered. Especially when you get to the next three...

Jeffrey Wright:

9th amendment, 10th amendment, 11th amendment.

Jad Abumrad:

These three amendments...they're little bit trippy. Not to say they're not important. Some people would argue they're the most important amendments, but it's just that they're very hard to understand by just reading the text. You kind of have to talk about them by talking about something else, if that makes any sense. So, that's what we're going to do. Play the songs in just a second for the moment. For the liner notes, we're going to try and use metaphor to bring these spacey amendments back down to earth, starting with...

Jeffrey Wright:

Ninth amendment.

Jad Abumrad:

The ninth.

Jeffrey Wright:

Non-enumerated rights retained by people. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Jad Abumrad:

Yeah. Listen to it one more time.

Jeffrey Wright:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Kelly Prime:

So, I've been reading about the Ninth Amendment-

Jad Abumrad:

More Perfect producer Kelly Prime.

Kelly Prime:

...And learning that basically the reason it's around is because the framers wanted to cover their asses, our asses. Basically the ninth looks back at the previous eight amendments and it says, "Yeah, those are our rights, but they aren't our only rights. We've got way more rights than that. They just aren't written down." Which I guess makes sense, but does it? I mean we can pretty much choose to do anything that isn't illegal, but there are lots of things that aren't Constitutional guarantees. I mean, what counts? If we have boundless Ninth Amendment rights, why don't we have a guaranteed right to marijuana? Or free refills? Or window seats? The right to complimentary dinner mints? The right to tasting tiny pieces of candy out of those bulk containers? The right to ice cream for breakfast every day?

Kelly Prime:

It's super vague, and I wanted to know how to understand it better. So I started Googling whatever I could and I came across a professor.

David Garrow:

This is Judith Bear.

Kelly Prime:

From Texas A and M University.

David Garrow:

I teach political science and I specialize in public law.

Kelly Prime:

And Judith told me about a case...

David Garrow:

Called Griswold v Connecticut.

Kelly Prime:

The story of Griswold v Connecticut begins in 1961.

David Garrow:

Okay. Estelle Griswold was the executive director of the planned Parenthood League of Connecticut.

Kelly Prime:

Estelle got together with a Yale med school gynecologist named C. Lee Buxton, and the two of them started a clinic in New Haven.

David Garrow:

They were quite popular in the community. They had lots of clients and within 10 days the police shut them down.

Kelly Prime:

Because keep in mind, this was before Roe V Wade, and in Connecticut in the mid sixties...

David Garrow:

The law prohibited the use of any contraception.

Kelly Prime:

It was illegal to even use birth control. So it was super illegal to start a clinic where you coach women and married couples about it, but Estelle Griswold was doing it anyway.

Estele Griswold:

Well, I think it's very evident that the law is unenforceable. I think if you had a policeman under every bed in the State of Connecticut, they still could not prove anything.

Kelly Prime:

This is tape of Estelle Griswold from that time.

Estele Griswold:

We are continuing, maybe illegally, but we are continuing our program.

Kelly Prime:

So in the late fall of 1961...

Speaker 1:

November, we issued two warrants, one against Estelle Griswold, and the other against Dr. C. Lee Buxton.

Kelly Prime:

Estelle Griswold and Dr. C. Lee Buxton are arrested.

Speaker 1:

In violation of the contraceptive stature.

Kelly Prime:

What happens next is their clinic gets shuttered, they go to court, their case makes it all the way up to the Supreme Court, and eventually they win in a way that feels both very obvious and incredibly odd. Also, like somewhat metaphysical.

David Garrow:

In the opinion, William O. Douglas, the justice who wrote for the court, wrote that various guarantees create zones of privacy.

Kelly Prime:

Douglas cites a ton of amendments here. The first, the third, the fourth and ninth, the fifth, saying they all guarantee privacy, and if a woman wants to use birth control in her own home, her privacy there should be protected. Privacy is important. Got it. But things get weird when you realize the word "privacy"

Kelly Prime:

And is privacy mentioned anywhere in the Constitution?

David Garrow:

Absolutely not.

Kelly Prime:

Is nowhere to be found. The actual word "privacy" is written exactly zero times in the U.S. Constitution. And yet we all believe that we do in fact have that right. What to make of this? Well, in the Griswold case, Douglas offers the following explanation.

David Garrow:

Douglas wrote for the court that certain Constitutional guarantees have penumbras formed by emanations from these rights that give them light and substance.

Kelly Prime:

Penumbras and the nation's light substance. I'm just so captivated because it just sounds so physical. Like it doesn't sound that high level law, it's like-

David Garrow:

It does. Penumbra comes from two Latin words, meaning "near shadow". So you're using a metaphor from the natural world to describe an idea.

Kelly Prime:

Justice William O. Douglas said that all our Constitutional rights have penumbras of emanations stretching out into space. I imagine an exploding star, a supernova, this glowing white ball with light radiating out in every direction into the vastness of space.

Kelly Prime:

So according to him, while the law doesn't say anything about privacy explicitly, privacy is kind of contained in the space that the law emanates into or something.

David Garrow:

Hello?

Kelly Prime:

Hello. Is this Dr. Krupp?

David Garrow:

It is, and I'm going to take you off of speaker phone.

Kelly Prime:

Okay, perfect.

David Garrow:

I think I'm going to take you off the speakerphone. I'm trying to take you of, where is it?

Kelly Prime:

This idea that we can understand the Ninth Amendment through this cosmic metaphor?

David Garrow:

Nope.

Kelly Prime:

That's so beautiful.

David Garrow:

Very weird headset. No.

Kelly Prime:

And yet so vague. Like every time I really try and wrap my head around it just...

David Garrow:

No, I think you're still on speaker.

Kelly Prime:

It kind of fuzzes out. And so I thought maybe I just need to understand what a penumbra actually is. So I called up a guy who knows.

David Garrow:

Try it again.

Kelly Prime:

Hello? Yep. Am I on speaker still?

David Garrow:

No longer. We do not understand how that happened. It is strictly magical. We're probably in a black hole vortex.

Kelly Prime:

This is Dr. Ed Krupp...

David Garrow:

Director of Griffith Observatory in Los Angeles.

Kelly Prime:

Dr. Krupp is an astronomer. He knows a lot about penumbras, so I asked him for a definition.

David Garrow:

The penumbra is the zone of shadow outside of the main central shadow that is cast by a celestial light like the sun.

Kelly Prime:

Think about a solar eclipse where the moon is casting a shadow on the earth. The deep dark center part of that shadow is called...

David Garrow:

The umbra.

Kelly Prime:

And the penumbra is the less dark, outer fuzzy edge of that shadow where...

David Garrow:

The darkness isn't as deep.

Kelly Prime:

So it's kind of like the furry shadow on the edge of the dark shadow, the little fuzz towards the outside.

David Garrow:

My suspicion is that you've probably not seen a total solar eclipse. Is that correct?

Kelly Prime:

I have not. I've seen a partial last year.

David Garrow:

Yeah. It doesn't count.

Kelly Prime:

It feels like it counts.

David Garrow:

The fact is...

Kelly Prime:

Okay, whatever. I asked him based on his understanding of the penumbras and astronomy, "What do you think Douglas meant when he said..."

Estele Griswold:

Certain Constitutional guarantees have penumbras formed by emanations from these rights that give them light and substance.

Kelly Prime:

Does that make sense to him as an astronomer?

David Garrow:

No. I certainly understand how you're saying about the law, but that's a different thing than the actual experience of the penumbra.

Kelly Prime:

He says, "Sure, if you want to think about it, if the law, if it's a light source, it would emanate light, which could create a shadow, but the shadow doesn't give the light. It's light in substance. It already has the light inside of it." And... hmm...

David Garrow:

You know, it's difficult for me to endorse that analogy.

Kelly Prime:

Talking to Ed Krupp, I was like, "What the (beep) Douglas, what did you mean?"

Kelly Prime:

Does it surprise you that his metaphor doesn't hold up?

David Garrow:

No, not at all.

Kelly Prime:

This is David J Garrow.

David Garrow:

I'm the author of the Right to Privacy In the Making of Roe V Wade.

Kelly Prime:

And he's written a lot about Justice Douglas.

David Garrow:

Given Justice Douglas' reputation, pulling these concepts out of the air, almost literally out of the astronomical air. Unfortunately, that was par for the course with Justice Douglas.

Kelly Prime:

He had this reputation for being a brilliant legal mind, but also kind of a jerk, not to mention a womanizer, and kind of lazy. His former clerk said his opinions were, quote, "Drafted in 20 minutes, easy to ignore." There's another quote here that they were "superficial" or just "plain sloppy". That's strong.

David Garrow:

It's almost unprecedented for a justice's former clerks to speak critically, highly critically of the justice, subsequently in public.

Kelly Prime:

Pardon me when I hear those things, like seriously justice Douglas, you can't put in a little effort here?

Kelly Prime:

I guess I don't have a question attached to that, but do you feel that? Does it feel-

David Garrow:

Sure. For example, it's been reported that Justice Clarence Thomas had a sign in his chambers at the Supreme Court saying, "Please don't emanate in the penumbras."

Kelly Prime:

But all that said, when I hold all of this in my hands, the unenumerated rights, the penumbra, the moon, all of it, I feel like maybe Douglas was destined to fail.

Kelly Prime:

The Ninth Amendment is different. Unlike the first eight amendments that outline in incredible detail what Americans should expect of their new government, the Ninth Amendment comes floating in with all its astronomical vibes, gesturing, dream, all the uncontainable, indomitable rights to which Americans can lay claim without ever being able to point to them in text.

Kelly Prime:

The founders of this country, one of the things they had in mind, was that the law wasn't just a set of words or a set of rules. The law had a spirit. There was a spirit of the law and that there was something behind those words that you couldn't quite put your finger on. Couldn't exactly name.

Kelly Prime:

So maybe Douglas failed because he was lazy, but maybe he failed because he had to. Maybe his failure is the whole point.

Jad Abumrad:

Kelly Prime did that audio liner note for the Ninth Amendment.

Jad Abumrad:

All right. Moving right along, Tenth Amendment.

Jeffrey Wright:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Jad Abumrad:

This is often called the State's Rights Amendment. And the history behind it...

Speaker 2:

It was hot in Tuscaloosa this morning, very hot, nearly 100 degrees.

Jad Abumrad:

It's pretty dark.

Heather Gerken:

70 years ago, state's rights were repeatedly invoked to say...

Speaker 3:

Segregation today, segregation tomorrow, and segregation forever.

Heather Gerken:

No, the federal government cannot dismantle Jim Crow. It cannot mandate equality because we have a right to regulate in this area.

Jad Abumrad:

That's the ugly history according to Heather Gerken, Dean of Yale Law School, but she says it's not the present.

Heather Gerken:

If you want to see where has most of the work been going on.

News Reporters:

The EPA wants to lower emission standards. One state, however, has dug in its heels. In Massachusetts. California. The State of New York...

Heather Gerken:

In terms of environmental reform, where has the most work been going on...

News Reporters:

Throughout Massachusetts are celebrating a day many thought might never...

Heather Gerken:

In terms of moving forward LGBTQ issues...

News Reporters:

Legally getting married.

Heather Gerken:

That's been happening at the state and local level and that definitely predates the Trump administration.

Jad Abumrad:

So state's rights, this 10th amendment idea, cuts both ways, and maybe the deeper point is that this push and pull between the federal government and the states, you could argue it's fundamental to the way the country was built. It's part of the fundamental architecture.

Jad Abumrad:

Sort of like if you go to DC and to the Capitol building, you look up at the curved dome. In a basic dome, what you have is the weight of the dome itself, the immense radial force pushing out away from the center, down against the stone walls, but the stone walls resist and push back up. And the only reason the thing doesn't fall on your head is because of those inner forces pushing against each other. To go slightly farther a field, there's a concept in architecture called 10 Segreti, where the integrity of the structure is the tension itself. That's what holds it up.

Jad Abumrad:

The Tenth Amendment is evidence that the founders of this country had something like that in mind. These guys were builders. Washington, Jefferson, they wrote on and on about designing their own homes. And the republic that they designed for us is built on forces colliding, forces in a balanced tension. And that's kind of what the Tenth Amendment is all about.

Emily Rack:

Okay, I think we should all be here.

Kelly Prime:

Cool. Is everybody...Emily, Rick, Hi, nice to meet you guys. Thank you so much for that song. It's so amazing.

Emily Rack:

Aw.

Kelly Prime:

I guess first, would you mind just introducing yourself?

Rick Elverston:

This is Rick Elverston.

Emily Rack:

And I'm Emily Rack, and we're the band Lean Year.

Jad Abumrad:

The band Lean Year chose the 10th amendment.

Jad Abumrad:

They spoke to Kelly Prime in the studio.

Jad Abumrad:

We'll hear an excerpt.

Kelly Prime:

Can you tell me a little bit about the process of writing the song? If you were to paint a picture, what idea came to you first?

Rick Elverston:

We live in Virginia, in Richmond, Virginia, and the idea of state's rights is a very volatile idea here. I think we were thinking of the idea of the individual versus the collective, and it's being this eternal struggle in the American brand of democracy.

Emily Rack:

I think it was about envisioning what the legal historical struggles might look like in the context of a relationship, what an individual brings to the relationship and how an individual identifies with a relationship versus how they identify as a couple.

Rick Elverston:

For me, the core is the component of trepidation in that "we... put an end to me"...

Emily Rack:

The "I versus we" dynamic...

Rick Elverston:

It can be a beneficial friction, or it can be a problematic, volatile thing.

Emily Rack:

Yeah, and I think that we are just so increasingly divided and polarized... that seems to suck all of the nuance... out of a conversation... in a way that doesn't really allow us to hold a space for being individuals and being a collective at the same time... in a way that doesn't feel very fearful.

Jad Abumrad:

That was a song by the band Lean Year, love that song, written for the Tenth Amendment for our album called 27: The Most Perfect Album. You can listen to the full song, all the songs in their entirety at themostperfectalbum.org. I'm Jad Abumrad. This is More Perfect. We'll be back in a moment.

Chris Garcia:

I'm Chris Garcia. My dad had one dying wish: that we scatter his ashes off the coast of Cuba where he was born. But my mom, she fled Cuba 45 years ago, and she's not going to go back. She's like, "Scatter them off the coast of Miami! It's all the same ocean!" There's so much I don't know about my dad. Like how did he get those scars on his hands? What happened to him in Cuba? He took those secrets with him, and now I'm going to dig them up. Listen to my new podcast, Scattered, from WNYC Studios.

Jad Abumrad:

Hey, Jad, More Perfect. We're marching through the amendments, listening to excerpts of songs inspired by these amendments from 27: The Most Perfect Album, and we're telling stories about the amendments. We've done nine, we've done ten, now...

Speaker 1:

Eleventh Amendment. Suits against States. The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Jad Abumrad:

Okay, so this is another amendment that's a little hard to parse.

Jad Abumrad:

What it technically says, if you listen to it...

Speaker 1:

The judicial power of the United States shall not be construed...

Jad Abumrad:

Says something about how a person who lives in one state...

Speaker 1:

One of the United States by Citizens...

Jad Abumrad:

Let's say Georgia, I don't know...

Speaker 1:

Whereby citizens...

Jad Abumrad:

...Cannot Sue a different state. So someone who lives in Georgia can't sue the state of Florida. That's basically what it says. It gets more complicated, way more complicated. But at its base, it's this wonky little rule, and this is the Eleventh Amendment! Like you've got the bill of rights, which is one through ten, and it's filled with these blockbusters: the right to free speech, the right to bear arms, the right to a trial by a jury of your peers. And then you get this. Why?

Jad Abumrad:

Again to answer, or at least to come up with a satisfying answer. It helps to free your mind from the literal. Here's Julia Longoria with more.

Julia Longoria:

It seems to me that the Eleventh Amendment is hugely complicated and difficult to teach, even in law schools?

Susanna Sherry:

Yes. I spent several weeks on it in an advanced upper-class course.

Julia Longoria:

That's Susanna Sherry, a professor at Vanderbilt Law.

Julia Longoria:

So we have the unenviable challenge of trying to package this in a three to five minute little tap dance.

Susanna Sherry:

For the general public.

Julia Longoria:

Right. So in the metaphor that I've tried is it seems maybe it's the appendix of the... If the Constitution were a body, it's the appendix.

Susanna Sherry:

That's actually not too bad.

Heather Smith:

I woke up one morning feeling just a little bit queasy and nauseous. I thought maybe I had eaten something.

Julia Longoria:

Dr. Heather Smith is an anatomy professor, and she was first introduced to her appendix when she was 12 years old when it hurt like a (beep).

Heather Smith:

The discomfort became more and more localized into the lower part of my right abdomen. And by the end of the day, that day I was in the emergency room having my appendix removed.

Julia Longoria:

This is how a lot of us encounter the appendix on its way out. And if you look at a picture of the appendix, it looks like this weird long wart coming out of our large intestine. Darwin, when he looked at it, called it a vestigial organ.

Heather Smith:

Vestigial just means an evolutionary remnant. So something that was useful in the past that is no longer useful.

Heather Smith:

Darwin's hypothesis was that in our ape ancestors, they were much more folivorous, meaning that they ate a lot more grasses and leaves.

Julia Longoria:

They were climbing up trees and eating leaves and branches. So they needed special enzymes in their body to digest that stuff. Those enzymes were stored in the appendix area, or at least that's the theory. But then over time our diet changed.

Heather Smith:

So his hypothesis was that our large intestines essentially shrunk in size, and that when they shrunk, the appendix shrunk along with them.

Julia Longoria:

So the theory is that now it's just this deflated, useless organ past its prime that does nothing but cause problems.

Julia Longoria:

And for some people it's tempting to see the Eleventh Amendment in the same way, where it was once this super crucial thing, and now it causes pain.

Jad Abumrad:

But you're saying it was crucial at one point?

Julia Longoria:

Yeah, actually.

Jad Abumrad:

When? Why?

Bradford Clark:

Well, you have to remember this amendment was drafted originally in 1793.

Julia Longoria:

That's Bradford Clark, a law professor from George Washington University.

Bradford Clark:

So only four years after the Constitution was adopted and only two years after the bill of rights was adopted.

Julia Longoria:

Keep in mind, the country is a baby at this point, like it's a newborn. And so most of the people who wrote the founding document had actually recently been British, and in Britain there was this idea that you can't sue the King.

Susanna Sherry:

The King has a dignity that would be afronted if he were dragged into court by a commoner.

Julia Longoria:

And the founders of the United States, they took that same idea and put it into the U.S. Constitution.

Susanna Sherry:

Most people took for granted that the federal government would be immune from suit.

Julia Longoria:

But it didn't seem like the States were going to get that same immunity. And States were like...

Bradford Clark:

"No, no, no."

Julia Longoria:

"We're not signing on to the Constitution if we don't get that immunity too."

Bradford Clark:

Maybe it's hard for us in this modern world to put ourselves back into the mindset of the people at the time. But I think the States, we're very proud of winning their independence. So in the Declaration of Independence, they declared themselves to be free and independent states. We don't think of this today, but the word "state" was the word that was used in international law to describe a sovereign nation. And it's still used that way in other countries. And one of the prerogatives of sovereign states was not to be sued in its own courts, or in the courts of another sovereign, without its consent.

Julia Longoria:

So that was the basic idea. States we're never going to give up immunity. They would never sign onto the Constitution without it. So in some ways, the Eleventh Amendment kind of saved our Constitution. The States wouldn't be forced to pay back debts that they were not capable of paying. And because of that, the country could continue to exist.

Susanna Sherry:

And so that was very important back then. I don't think we worry about that very much now.

Julia Longoria:

These days, according to Susanna Sherry...

Susanna Sherry:

I think the Eleventh Amendment is mostly used to protect States from their own illegal actions. And I don't think that's a good thing.

Julia Longoria:

The Eleventh Amendment today causes all kinds of pain.

Susanna Sherry:

If you happen to have a run in with a state...

News Reporters:

The tribe says the Lake is part of a watershed sacred to the Coeur d'Alene Indians. But, says the Supreme court, the state can't be sued. You mean to tell me even if these Medicaid recipients are right, that neener-neener-neener they can't sue you and hold you accountable, and you're free to violate the law?

Susanna Sherry:

Florida refused to negotiate with the Seminole tribe, and so the Seminole tribe tried to sue them in federal court. Supreme Court said, "Nope, they're immune."

News Reporters:

I feel that the people that will hurt from smoking cigarettes should be compensated for it.

News Reporters:

Legal experts say that case will be difficult to make because the Eleventh Amendment protects states from federal lawsuits for monetary damages.

Susanna Sherry:

This is why the Eleventh Amendment is so crazy.

Julia Longoria:

So that makes me think like, should we just get rid of the Eleventh Amendment? Should we be going full appendectomy on this (beep)?

Susanna Sherry:

Well, I think that might be a pretty good metaphor, except that there is a dispute. It's as if there were a dispute among doctors about whether the appendix was actually a useful organ.

Julia Longoria:

Yes, there is. There absolutely is.

Susanna Sherry:

There is? Oh, I didn't know that.

Julia Longoria:

They've just come out with a study that says actually the appendix might be useful. So like when there's a time of turmoil in the stomach as they call it like a diarrheal episode.

Susanna Sherry:

I don't think you want to use that on the podcast.

Julia Longoria:

Watch me. So I just want to kind of like walk through step-by-step a diarrheal episode.

Julia Longoria:

Heather Smith again is one of the people who discovered this.

Heather Smith:

So let's say, for instance, you had a tourist who went to another country and got some kind of serious gastrointestinal issue, and they had episodes of diarrhea.

Julia Longoria:

When your body's flushing everything out, the appendix actually has this kind of poetic, beautiful function.

Heather Smith:

The appendix may serve as a safe house, a reservoir for beneficial gut bacteria.

Julia Longoria:

So maybe the appendix isn't vestigial like Darwin thought.

Heather Smith:

The term that we use in evolutionary biology is called an exaptation. So it's where a structure serves an adaptive function, but it's not its original function.

Julia Longoria:

In the same way, the Eleventh Amendment today looks very different than it did in 1793. That's because the Supreme court expanded it. They said the Eleventh means a lot more than it says. It protects States against all kinds of suits. Of course, there are exceptions, but it means a lot of times a Floridian can't sue Florida for damages. It also might mean you can't sue a state that's choosing to be a sanctuary for immigrants. Depending on who you are, you might hate that, or you might see it as a good thing. A reservoir for state power, a critical piece that finishes the federalism puzzle. The top of the Tenth Amendment dome, the penumbra of the Eleventh Amendment.

Jad Abumrad:

Julia Longoria with that liner note for the Eleventh Amendment.

Jad Abumrad:

Here's the song. It comes from a guy named Kevin Patrick Sullivan who goes by the name Field Medic.

Jad Abumrad:

Field Medic with a song for the Eleventh Amendment. You can check out that song and a Ninth Amendment song from the Caminas, Tenth Amendment song from Lean Year, and of all the other artists that have written songs for this album, 27: The Most Perfect Album, about the amendments to the Constitution. You can check them all out at themostperfectalbum.org. Listen to them all. More Perfect is produced by me, Jad Abumrad, Suzie Lechtenberg, Julia Longoria, Kelly Prime, Sarah Qari, and Alex Overington with help from Elie Mystal, Michelle Harris, and David Gebel and Nora Keller. The voice that you heard reading the amendments for us, that is actor Jeffrey Wright. Huge thanks to him. Thanks to you for listening. Okay, we'll see you next time.

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