JAD ABUMRAD: Today on the podcast, Robert, we're gonna talk constitutional law, federalism and—and the intricacies of international treaty practice. Ho ho!

ROBERT KRULWICH: Oh, God! No, no, no, no. Don't do that. No.

JAD: You ready? No, it's gonna be good! It's gonna be good! It's gonna be good. Because I have help.

KELSEY PADGETT: Hey guys.

ROBERT: Hi Kelsey.

KELSEY: Hello.

JAD: Kelsey Padgett has reported this segment. And just listen to how it starts.

KELSEY: So this story starts with a betrayed spouse.

JAD: Oh, you see?

ROBERT: Oh, it's much better! I'm coming back to my seat. Get some popcorn! [laughs]

DUNCAN HOLLIS: My name's Duncan Hollis.

KELSEY: He's not the betrayed spouse.

DUNCAN HOLLIS: Nope. I'm a professor of international law here at Temple University in Philadelphia.

NICK ROSENKRANZ: And I'm Nick Rosenkranz.

KELSEY: And not him either.

NICK ROSENKRANZ: I'm a professor of law at Georgetown. I'm also a senior fellow in constitutional studies at the Cato Institute. So Mrs. Bond ...

KELSEY: That's her! That's our betrayed spouse!

DUNCAN HOLLIS: Carol Anne Bond.

KELSEY: 36. Lives in a suburb of Philly.

NICK ROSENKRANZ: Discovered that her husband was having an affair with her neighbor.

KELSEY: Actually, it was worse than that. This woman was her best friend! And not only that ...

DUNCAN HOLLIS: She finds out that her friend is pregnant via her husband.

KELSEY: ... he got her pregnant.

ROBERT: Oh my God!

KELSEY: Yeah. And this is her best friend and her husband of 14 years.

NICK ROSENKRANZ: You know, she was quite upset, distraught.

JAD: Enraged, I would imagine?

KELSEY: Yeah. Carol made threats, there were confrontations. The other woman is named Myrlinda Haynes, by the way. And eventually, Carol Anne Bond ...

NICK ROSENKRANZ: She did what anyone would do, she got a bunch of toxic chemicals, and ...

ROBERT: [laughs] I do it all the time!

KELSEY: ... and she tried to poison her best friend. Repeatedly.

ROBERT: Oh!

JAD: Back up for a second. Where would she have gotten the chemicals from?

DUNCAN HOLLIS: She worked, I believe, at a lab.

NICK ROSENKRANZ: She works for a chemical company, I think it's Rohm and Haas.

KELSEY: She's actually a microbiologist. But she grabs some chemicals from her office.

NICK ROSENKRANZ: I think she also orders some off the internet.

KELSEY: Amazon.com.

NICK ROSENKRANZ: But they're pretty serious chemicals.

JAD: Like what?

NICK ROSENKRANZ: Well, one was arsenic-based, and in large enough doses—and when I say large doses, I'm talking teaspoons, not gallons—it can, you know, cause serious injury and can be fatal.

KELSEY: So anyway, she took these chemicals, she went over to her best friend's—or well, her former best friend's house.

NICK ROSENKRANZ: And she spread them on the doorknob and on the mailbox.

DUNCAN HOLLIS: The door to her car.

NICK ROSENKRANZ: And they're visible, I guess. I guess you can see them.

JAD: So the best friend isn't fooled.

NICK ROSENKRANZ: Nope. She calls actually the local police. The local police tell her to take her car to a car wash.

DUNCAN HOLLIS: They said, "Oh, you know, it could be drugs. Get the car washed off."

KELSEY: They kind of just blow her off, but it keeps happening. Over the course of, like, half a year, this happens 24 times.

ROBERT: 24 powder attacks.

KELSEY: Mm-hmm. According to the court briefs, you know, the police were just not being very responsive. She called them over a dozen times, and they tested it to see if it was cocaine, but once they figured out it wasn't, they didn't really do anything. So finally, she tells the post office.

NICK ROSENKRANZ: And it was the post office that actually sent out postal inspectors, and they set up a hidden camera.

KELSEY: And they videotaped Carol Ann Bond in the act.

ROBERT: They get it on tape?

KELSEY: Mm-hmm.

DUNCAN HOLLIS: That's how they identify her as the person putting the chemicals, you know, on the mailbox.

JAD: I didn't know the post office did stuff like that!

DUNCAN HOLLIS: To be honest, I didn't either. [laughs]

JAD: That's so—I think of them so differently now.

NICK ROSENKRANZ: Yes, and I think if there's a moral to the story, it is: do not mess with the mail.

JAD: [laughs]

NICK ROSENKRANZ: They take that—they take that very seriously.

KELSEY: Actually, there's a whole lot more going on than just messing with the mail, because of what happens next.

NICK ROSENKRANZ: Um ...

KELSEY: So according to Nick Rosenkranz, generally things like assault or attempted murder ...

NICK ROSENKRANZ: Those are state crimes.

KELSEY: ... in most circumstances, the federal government can't charge you with murder. The post office, that's a federal institution. So when they caught Carol Anne Bond, they kicked this up to the federal attorney, who then ...

NICK ROSENKRANZ: Went ahead and brought a federal case.

KELSEY: And here's the thing: they ended up charging Carol Anne Bond with violating the International Chemical Weapons Treaty.

ROBERT: What?

DUNCAN HOLLIS: We should be clear, the victim got a tiny thumb burn and ran cold water on it and was fine. So this is not murder, this is ...

ROBERT: Well then, that makes this all the more odd.

DUNCAN HOLLIS: Very odd.

ROBERT: When I poison someone, the last thing I'm thinking about is violating an international treaty.

JAD: We should never have you over for lunch.

ROBERT: [laughs] No, really. Why would they charge her with that? I don't understand.

KELSEY: Well, if you actually read the treaty ...

JOHN BELLINGER: The statute simply says that it's a crime to use a toxic chemical for other than a peaceful purpose.

KELSEY: That's the exact language. And that guy, that's John Bellinger.

JOHN BELLINGER: I served as the legal advisor for the Department of State under Secretary Condoleezza Rice.

KELSEY: And John says that even though it sounds a little weird, this is exactly what this treaty was meant for, for people using chemicals ...

JOHN BELLINGER: Highly toxic chemicals.

KELSEY: ... for non-peaceful purposes.

JOHN BELLINGER: Exactly right.

JAD: And that's what happened here.

KELSEY: Imagine if she had killed a bunch of postal workers. Then ...

JOHN BELLINGER: I don't think anybody would complain.

ROBERT: But to charge her with an international treaty violation? It just seems—it seems too big for the little lady.

KELSEY: It was really odd to her lawyers, too.

ROBERT: I bet.

KELSEY: They're like, "Look, in the Constitution, you have laid out what the federal government can do. This is not one of those things. You can't just take a treaty and use it to reach into the very local life of a normal person. That's a huge overreach."

ROBERT: Sneaky, frankly.

KELSEY: And now this case is before the Supreme Court.

ROBERT: Oh!

KELSEY: And it's become an ideological battle that goes way beyond Carol Anne Bond, her cheating husband or her adulterous best friend.

JAD: And I would argue that this case, as weird as it is ...

ROBERT: Mm-hmm.

JAD: ... raises some really important issues about how the world is changing, and about one of the most fundamental questions that is at the heart of America. I—I really believe that.

ROBERT: Well, you'll have to defend that position. What do you mean?

JAD: [laughs] Let me take you back to the beginning, okay?

ROBERT: Sure.

JOSEPH J. ELLIS: My name is Joseph J. Ellis. I am a historian. I've written the book called Founding Brothers, and my most recent book is called—what's it called?

ROBERT: [laughs]

JOSEPH J. ELLIS: Revolutionary Summer.

ROBERT: You are a modest man!

KELSEY: [laughs]

JAD: So Joseph Ellis has written a—he's a Pulitzer Prize-winning author. He's written a bunch of books about the founding of our country, the Revolutionary War. And there is a scene in one of his books ...

JOSEPH J. ELLIS: A book called American Creation. Didn't sell as many as Founding Brothers, but ...

JAD: Doesn't matter to me, because it has this one passage that when I read it I was like, "Wow! I've never thought of this country that way." To set the scene ...

JOSEPH J. ELLIS: You want to be real specific, it's September.

JAD: September, 1787. Philadelphia.

JOSEPH J. ELLIS: You know, it's abominably hot.

JAD: You had all these great men crammed into a state house. I mean, George Washington.

JOSEPH J. ELLIS: This guy is a stud!

ROBERT: [laughs]

JAD: 6'3". War hero.

JOSEPH J. ELLIS: This guy is overwhelming!

JAD: Alexander Hamilton was there.

JOSEPH J. ELLIS: Hamilton, he would've got the highest grades on the LSATs. I'm telling you, this guy was really smart.

JAD: Even Ben Franklin.

JOSEPH J. ELLIS: Yeah.

JAD: Who's pushing 81 at this point.

JOSEPH J. ELLIS: Franklin's there.

ROBERT: Oh!

JAD: They all came together to try and figure out, like, how do we do this? Like, if you think about it, it was a puzzle because you've got these 13 colonies which were really like sovereign nations. And they were loosely organized into a federation that was about to go bankrupt, so they had to do something. So they were like, okay, let's bring them together into a union, but how do we do that without a king? It was a crazy experiment.

JOSEPH J. ELLIS: Well, I mean one thing you've got to realize is that at that time in American history, the average person was born, lived out his or her life, and died within a 30-mile radius.

JAD: Wow.

JOSEPH J. ELLIS: They don't have cell phones, and they don't think about themselves as Americans.

JAD: They thought of themselves as Pennsylvanians, South Carolinians, Bostonians.

JOSEPH J. ELLIS: There is no real national ethos.

JAD: So that's one problem. Second problem? The Founding Fathers could not agree, could not agree on the most basic question: if there's not a king, who's in charge, right? The so-called sovereignty question. And on the one hand, you had a guy like Alexander Hamilton who got up there and was like, "Well, why do we even need states? What's a state, right? What we need is a federal government that is big and strong and powerful."

JOSEPH J. ELLIS: That's Hamilton, baby!

ROBERT: [laughs]

JOSEPH J. ELLIS: Hamilton wants a president elected for life. Hamilton wants a senator elected for life.

JAD: On the other hand, you had the Thomas Jefferson school of thought, which was like ...

JOSEPH J. ELLIS: No! No!

JAD: We just got out of a monarchy, for Chrissake! And the only way we're not gonna get back in one is if we keep the government small, restricted, and ...

JOSEPH J. ELLIS: All domestic policy belongs in the hands of the states.

JAD: Sound familiar?

JOSEPH J. ELLIS: Jefferson likes anything in which the government's not gonna be doing much.

JAD: So you had these two very different philosophies, and the way Joe sees it ...

JOSEPH J. ELLIS: If you let Jefferson have total power, we end up at anarchy. If you let Hamilton have total power, you're gonna end up with a totalitarian state.

JAD: At the convention, the two sides went back and forth. And any time a Hamiltonian-type proposal hit the floor, some of the states would say, "No." And they'd shoot it down because they did not want some big government telling them what to do, especially when the 800-pound gorilla in the room was slavery. So they couldn't agree at all. And into this mess walks our hero, James Madison!

JOSEPH J. ELLIS: Madison. Yeah, like, Madison's 5'2", 120.

JAD: [sings] Madison!

JOSEPH J. ELLIS: He's the kind of guy that, you know, stands in the corners during a dance.

ROBERT: [laughs]

JOSEPH J. ELLIS: He's—you would call him a nerd.

JAD: [sings] Madison! Or you might call him a pragmatist.

JOSEPH J. ELLIS: Madison wants a clear decision about sovereignty.

JAD: Yeah, like for example on local matters. Who gets the final say: the states or the federal government? Just give me some clarity.

JOSEPH J. ELLIS: And he's not gonna get it. And he comes to that realization at the very end.

JAD: Because at the end of the convention they have this document, and he wrote the original blueprint. Now there's this new document so riddled with compromises that, according to Joe, the basic question he wanted answered wasn't. The "Who's in charge?" question was left kind of vague on all sorts of matters. I mean, who regulates money and banks? Who gets to tax what? Who decides whether new states will be slave states or free states? It was vague. And initially, according to Joe, in a letter that Madison wrote to Thomas Jefferson, he's like, "Come on!"

JOSEPH J. ELLIS: He's very disappointed.

JAD: He thinks the document's gonna fail and the country's gonna fail.

JOSEPH J. ELLIS: He doesn't think this is going to last.

JAD: But then, Joe says, in his writings you start to see a shift.

JOSEPH J. ELLIS: He starts to think differently. He starts to say, "Oh yeah."

JAD: "Wait a second."

JOSEPH J. ELLIS: "This—this could work precisely because it's unclear." And we found what he calls a "middle station."

JAD: Where everyone can see what they want to see.

JOSEPH J. ELLIS: I mean, people come out of the convention, go back to their states, and the guy in South Carolina says, "Don't worry about slavery. The Tenth Amendment's gonna tell us that they can't do that." And the guy in Pennsylvania says, "It's just a matter of time before we end slavery." The Constitution becomes successful because the people don't agree on what it means.

JAD: That, according to Joe, was Madison's epiphany.

JOSEPH J. ELLIS: That the Constitution isn't a set of answers, it's a framework for argument. This is a document which allows us to continue to discuss and debate the core issues that we face: the powers of the presidency, the sovereignty question. The real resolution of the sovereignty question is never—is never achieved. And—and it eventually leads to the Civil War.

JAD: What I find kind of neat about this is that, like, that argument that happens in modern politics all the time about states' rights or the size of the government, which can feel like a random argument for me at times, suddenly to know this—I mean, if you buy what Joe's saying—it's not random at all. This is an argument that was actually literally written into our founding document. In some sense, we as a country are the product of that argument.

ROBERT: Of course, not everybody agrees with Joseph Ellis. There are people who think that the founding fathers had a very specific thing in mind, and if you just go back to their debates and to what they said to each other that you can find the real only deep logic for the Constitution.

JAD: But the fact that they disagree with Joe, in some sense doesn't that kind of make Joe's point? That you can read this document in 10 different ways?

ROBERT: Yes. Everyone always argues always.

JAD: Now just to pick up the thread, I mean, after the Civil War the argument changes, it gets centered.

ROBERT: But the union is still an experiment.

JAD: Yeah. Massachusetts can still do their business differently than Colorado, differently than Vermont.

ROBERT: And the jostling between the federal government and the state government doesn't end, it just gets a little quieter. Thank heavens. Because you don't want ...

KELSEY: Unless you're a duck.

ROBERT: [laughs]

KELSEY: And our next stop is ...

JAD: And this one has everything to do with our poisoner.

KELSEY: So it's spring of 1919, rural Missouri. You've got Frank McAllister, the attorney general of Missouri. He's out there with a bunch of friends, and they're pointing their guns at the sky and shooting ducks, one after another after another. And they end up shooting all in all 76. He knows he can do this because, you know, he's the attorney general of the state. He knows all the laws of the state, and he knows it's his right to shoot whatever duck is flying in the sky of Missouri.

JAD: That's the state law that you ...

KELSEY: That's the state law. You can shoot the ducks. So they're out there, they're having this great time. They're having this great haul, they've gotten all these ducks. And then out of nowhere, Ray Holland, the federal game warden shows up and he says, "No, you can't do this. You can't shoot these birds. They're not your property." McAllister says, "You? You're wrong."

ROBERT: [laughs]

NICK ROSENKRANZ: "This is a matter for the state. You know, it's our sovereignty. We never gave this over to the federal government."

ROBERT: So he must've been like, "I don't think the federal government has anything to say to me about a duck that was born here. At least I found it in the sky here, I shot it here, it died here, and I'm gonna eat it here. So this is my duck."

KELSEY: But the game warden says, "No, it's not your duck." And he arrests them all, setting up a landmark confrontation. Because here's what had happened: two years earlier, the administration of Woodrow Wilson was sitting there wringing their hands, thinking all these people are killing birds at, like, a nonstop pace. And if this didn't stop ...

NICK ROSENKRANZ: You know, there was some concern at this period that we were gonna—you know, we were gonna hunt these things to extinction. You know, we might not have any migratory birds at all.

KELSEY: Problem is, the courts had already told the federal government this is purely a local matter. You can't make federal hunting laws. But then somebody in the administration has this really great idea—or a really evil idea, depending on how you look at it.

NICK ROSENKRANZ: Maybe if we can get Canada to cooperate with us we can do this by a treaty.

KELSEY: Because there's this clause in the Constitution that says treaties are the supreme law of the land, so maybe if we make an international treaty then the states will have to go along. Frank McAllister, he sues, and this goes all the way up to the Supreme Court.

NICK ROSENKRANZ: It lands before Oliver Wendell Holmes, one of the more famous justices of the Supreme Court. And he basically says the treaty power is something that was given to the federal government. Don't limit this. This treaty is good. And the treaty and the legislation are upheld.

JAD: So score one for the federal government.

NICK ROSENKRANZ: Score one for the federal government. And in there, you actually have Holmes talking about what the Constitution is. You know, he was this—what, thrice-wounded Civil War veteran, and he actually invokes the language of the Civil War saying, you know, we spent all this sweat and blood to figure out what kind of nation we were gonna become—for birds. He invokes this language and basically says whatever we had debated in the past, you know, could the states regulate slavery without federal interference? And Holmes says no, you know, the side who fought that argument? They lost.

KELSEY: All this talk about birds and, you know, state versus federal has everything to do with our poisoner Carol Anne Bond. This case is the precedent upon which the federal government says that they can prosecute Carol Anne Bond, because Oliver Wendell Holmes said that treaties are the supreme law of the land.

ROBERT: I don't know. I'm still—I'm still of the mind that this is a sneaky bit of business by the federal government.

JAD: It's not sneaky if you're a duck. I—I feel I must speak on behalf of the ducks here.

ROBERT: [laughs] But no, forget your ducks. This is a Pennsylvania lady doing a Pennsylvania adultery in a Pennsylvania mailbox with a Pennsylvania mood. I mean, there's nothing—there's no birds flying overhead. This is an all-Pennsylvania crime.

KELSEY: But you know who wasn't doing a goddamned thing about that? Pennsylvania.

ROBERT: [laughs]

JAD: Oh! Oh!

KELSEY: But just to take your side for a second, Robert.

ROBERT: Please. Do that.

KELSEY: [laughs] If you really think about it, you know, in the way that Nick Rosenkranz thinks about it, this is really troubling. This decision seems to say that theoretically, the federal government's power ...

NICK ROSENKRANZ: Is potentially infinite.

KELSEY: Because, like, say John Kerry, who's our Secretary of State right now, he goes and makes treaties.

ROBERT: Right.

KELSEY: Say he's talking to Zimbabwe, and we agree that we want to have a treaty about educational standards for children. So we come home and we write a law that says all children must go to public schools. But then that would outlaw homeschooling for children, which is a clear local state matter. But now suddenly the federal government has the power to do that.

NICK ROSENKRANZ: It just seems odd the idea that the President, the Senate and Zimbabwe can increase Congress's legislative powers.

KELSEY: Here's how John Bellinger responds.

JOHN BELLINGER: Is it a theoretical possibility that the federal government might try to go and do that? I suppose it's theoretically possible, but there's no evidence that that happened here, there's no evidence that that has happened in the hundred years since Missouri versus Holland.

KELSEY: He would say, "Look, consider the ..."

JOHN BELLINGER: ... practical impact that a decision might have that would cut back on the President's treaty power. Other countries are already highly suspicious of the United States' ability to deliver on its treaty commitments anyway.

KELSEY: John would say, "Why would any other country want to make a treaty with us if Kansas could back out at any time?"

JAD: And, like, how do you deal with a question like global warming if everybody is allowed to be left to their own devices, you know?

ROBERT: Well, that's a tough one.

DUNCAN HOLLIS: I mean, the reality is ...

KELSEY: That's Duncan Hollis again.

DUNCAN HOLLIS: ... we live in a globalized world, whether it's, you know, dealing with things like climate change, terrorism, shipwrecks, cybercrime, increasingly these are things we can no longer regulate just within a particular local community or a local society.

JAD: And, like, on some level, if we now find ourselves in this world where, like, I can get on the internet and spend hours and hours playing World of Warcraft with people in Yugoslavia and yet I've never really talked to my neighbor that's just down the street, like, why wouldn't we all have the same laws?

NICK ROSENKRANZ: But, you know, I think the flip side of your question is: fine, the world is very interconnected, but are there still some things that are local? Are there some things left where we could say the federal government doesn't need to be able to reach this?

KELSEY: And more than that, Nick says that having a bunch of different communities that are governed by different rules all under the same nation actually ...

NICK ROSENKRANZ: Has a bunch of benefits: competition, the idea of laboratories of democracy, that the 50 states will all try different things as to regulating guns near schools, as to regulating whatever it is. And maybe some state will hit on something brilliant, and if they do, then it will spread and be replicated. And, you know, that theory has been borne out in a lot of different areas. When the feds decide that they're gonna come up with a one-size-fits-all national solution, that's the end of the experiments.

ROBERT: So by the way, what happened to Carol Anne Bond?

KELSEY: Well, she went to jail.

ROBERT: She's in jail. She's still in jail.

KELSEY: No.

ROBERT: No?

KELSEY: She's out now.

ROBERT: So she's—she could go to court and find out whether this thing was ...?

KELSEY: [laughs] Yeah.

ROBERT: That's cool.

KELSEY: She can show up.

JAD: What about the poisonee? What happened to her?

KELSEY: The poisonee? She changed her name, she moved away. She's unsearchable now.

JAD: Good. Good.

KELSEY: It's for the best.

JAD: I hope she moved to Zimbabwe.

ROBERT: Is she still living with the guy that gave her the baby? Or ...

KELSEY: No. No, no, no. You see, Carol, even though she went to jail for six years, she stayed with her husband.

JAD: [gasps] No way!

ROBERT: Oh, really?

KELSEY: Yeah.

ROBERT: She stayed with the man who had a baby with the other lady?

KELSEY: Yeah, that she tried to poison that lady about? She stayed with that guy.

ROBERT: See, that's the thing: law is interesting, but love? That's complicated. Love is wages and treaties.

KELSEY: [laughs]

JAD: Thank you, Kelsey.

KELSEY: Thank you!

JAD: Kelsey Padgett. Robert Krulwich. Jad Abumrad.

ROBERT: Yeah. That's all of us. I think you've mentioned all of us.

JAD: Yeah. Let's go.

ROBERT: So we have to say goodbye to all of you. Bye!

JAD: And happy Christmas.

[LISTENER: This is Bonnie calling from Boston, Massachusetts. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org]

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