The Constitution: A Historical Document With Contemporary Problems

“Opinionated, may be controversial, but should spark a national dialogue about our Constitution and the nation’s future.” —Dan Rather

When I first heard of the book, Fault Lines in the Constitution: I was excited for the opportunity to learn the reason and development of writing this book. And basically, their WHY? 

Many of the political issues we struggle with today have their roots in the US Constitution.

Husband-and-wife team Cynthia and Sanford Levinson take readers back to the creation of this historic document and discuss how contemporary problems were first introduced—then they offer possible solutions. Think Electoral College, gerrymandering, even the Senate. Many of us take these features in our system for granted. But they came about through haggling in an overheated room in 1787, and we’re still experiencing the ramifications.

The authors have written a book that approachably zooms in on issues that foundationally impacted our government from the beginning and highlights how these same issues rise up as challenges today. 

Without picking sides of an argument, Cynthia and Sanford Levinson articulate a complex topic in an accessible way for readers young and old.

Cynthia Levinson holds degrees from Wellesley College and Harvard University She is a former teacher and educational policy consultant and researcher.

Her husband Sandy Levinson or Sanford Levinson is an American legal scholar, a professor in the Law School and the Department of Government at the University of Texas

Written in 1787, ratified in 1788, and in operation since 1789, the United States Constitution is the world’s longest surviving written charter of government. Its first three words – “We The People” – affirm that the government of the United States exists to serve its citizens. The supremacy of the people through their elected representatives is recognized in Article I, which creates a Congress consisting of a Senate and a House of Representatives. The positioning of Congress at the beginning of the Constitution affirms its status as the “First Branch” of the federal government.

The Constitution assigned to Congress responsibility for organizing the executive and judicial branches, raising revenue, declaring war, and making all laws necessary for executing these powers. The president is permitted to veto specific legislative acts, but Congress has the authority to override presidential vetoes by two-thirds majorities of both houses. The Constitution also provides that the Senate advise and consent on key executive and judicial appointments and on the approval for ratification of treaties.

“When one of the nation’s foremost constitutional scholars teams up with one of the nation’s favorite young adult authors, the result is a highly educational, readable and entertaining look at the United States Constitution, warts and all. Cynthia and Sanford Levinson’s “Fault Lines in the Constitution,”  could not be more timely and thought provoking.” — Ted McConnell, Executive Director, Campaign for the Civic Mission of Schools, Assistant to Chairman, Commission on the Bicentennial of the United States Constitution 1986-1990.

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Emy DiGrappa (00:00):

Hello, my name is Emy DiGrappa. Each week we bring you stories, asking our guests the question why. We learn about passion, purpose, and the human experience. Brought to you by Wyoming Humanities, with the generous support of the Wyoming Community Foundation, this is What's Your Why.

(00:38):

Today we are talking to husband and wife team, Cynthia and Sanford Levinson, authors of the book Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today. When I first heard of the book Fault Lines in the Constitution, I was excited for the opportunity to learn the reason and development of why. Why write this book? So today, I want you to learn more about Cynthia Levinson and her husband Sandy Levinson, or Sanford. Cynthia holds degrees from Wesley College and Harvard University. She's a former teacher and educational policy consultant and researcher. And Sandy is an American legal scholar, a professor in the law school and the Department of Government at the University of Texas. Welcome, Cynthia and Sandy. Thanks for being here today.

Cynthia Levinson (01:28):

Thank you.

Emy DiGrappa (01:29):

So I'm super excited to ask you the why of why you wrote... I read the Constitution because it made me so curious. Do I know my constitution? I'm sure everybody does that when they see your book. They're like, oh, I better go read my Constitution and know what I know about the Constitution. But maybe people don't do that, and I think one of the problems with public school education is that they don't do enough teaching about the history and the making of the Constitution. What are your thoughts on that?

Cynthia Levinson (02:03):

Well, first of all, I'd say, and I'm sure Sandy will piggyback or diverge in his own way. First of all, I would say that if people are looking for an introduction or an overview of the Constitution, this is not the book for them. This does not go through the Constitution and say, here's what this clause means. Here's what that article is about. We didn't set out to do that. Sandy has been writing about issues, problems, fault lines with the Constitution for decades, and that's what the book is about, so I will let him pick up on this.

Sanford Levinson (02:40):

I think Cindy is raising an interesting point that when most, especially I would say since World War II, think about the Constitution, they think of rights provisions. They think about the provisions that are the subject of dinner table or ballroom arguments, in part because they're also the subject of important cases for the Supreme Court that will be covered by the press and where they might very well be five to four decisions with angry dissents. And people really can discuss with one another, argue with one another, shout at one another. And so when they think about the Constitution, they think, for example, the First Amendment. Freedom of speech, freedom of religion. Second Amendment, guns. 14th Amendment, what does the term equal protection of the laws mean, and stuff like that. So Cynthia is quite right. Our book really is not about those parts of the Constitution. Those parts are really quite well covered in a lot of the literature, especially those relatively few books that are aimed at kids.

(04:00):

Those books tend to focus on what are your rights under the Constitution? What is distinctive about our book, and I would argue not only distinctive but really important, is that we focus on structures. And the stuff that unfortunately is often not taught at all, or if it is taught, it's often taught as something we have to get through quickly because it's though and boring until we get to the really interesting stuff. So the structural stuff can range from, this is not an all-inclusive list, but it can include how we elect presidents, the electoral college, which most people, in fact, most adults by now in fact are familiar with. The US Senate and the remarkable allocation of power that every Wyomingite actually knows something about because the 550,000 people in Wyoming get the same two votes as the 40 million people in California, and that has real implications that we talk about in the book.

(05:15):

Life tenure for federal judges. The very difficulty in constitutional amendment that leads to most people not really thinking about constitutional amendment because frankly it seems impossible. It's the equivalent of throwing a message in a bottle into the ocean that is a gesture more than something you really expect to be read and to have consequences. The presidential veto power. The fact that even if something can get through both houses of Congress, which are really very different, as anybody reading any newspaper today can realize with regards say to the passage of legislation on the national debt. The House is very different from the Senate, but even if they agree, which is getting harder and harder to do, it might not matter because the President can veto the bill. And quite frankly, my view is not only that this is really important, but I think that it can be made interesting.

(06:30):

And I will say that Cynthia, who's a far better writer than I am, has a talent for beginning every chapter in the book with a story that really sets out an example of what difference does it make that Presidents can veto Bills or that we have this bicameral system or the Senate is the way it is? And so the aim of the book really is to show that this stuff is not dull and boring, and that people can argue about it, even in some sense shout about it, with the same sort of energies as if we began by saying, "Well, what about a right to have a gun?" or any other of the stock examples.

Emy DiGrappa (07:24):

That still brings me back to the question of why you think this book was important to write and who is your audience?

Cynthia Levinson (07:33):

Our audience is kids ages 10 through adults. We wrote it at the request of our editor who had given a copy of one of Sandy's books for grownups, for adults, to her father for a present. And he was so impressed with it that she said, "Gee, what about a kid's version?" So we wrote it for kids 10 to 14, but in fact we know of high schools and junior colleges and colleges that are using it, and Sandy has used it teaching law school. So we wrote it, the inspiration, instigation came from our editor, and we had an initial audience which has expanded greatly.

(08:20):

The importance of it is for people to understand the connection between what happened in 1787 in Philadelphia and what's going on now. There are direct lines between events today, arguments today, the debt ceiling for instance, which is going on right now, and the Constitution, because that has to do with the way Congress is organized, structured, as Sandy said. Who has votes? Who gets to go to Congress? Who doesn't? We have a chapter on with Sandy calls, correctly, gerrymandering, and I mispronounced to gerrymandering. A lot of what's happening today, I think many people, including me, have tended to blame on particular political personalities, a President, a Speaker of the House of Representatives, a Senate Majority Leader, but in fact, many times they are doing the best they can because of the strictures that have been put on them and the responsibilities that have given to them based on the constitution.

Sanford Levinson (09:37):

Cynthia is absolutely right. I would say the importance of it goes back to the unfortunate reality that most books about the Constitution, whether for adults or for kids, focus on arguments about rights. And what is important about our book is that it really does focus on what is not that often written about, especially written about in an interesting way, and that I think is what Cynthia was able to do. So I would say that our audience is, if you look at the book, it clearly is a book of the kind that you expect to see in a high school. Double columns, a lot of very good graphics, but designed to elicit the interest of high school students. But I keep saying that my intended audience is not only the kids, but their grandparents, parents, aunts and uncles, everybody who might see the book, pick it up, and actually get hooked on it.

(10:55):

And that's also true of the graphic novel version of it that, let me say quite astonishingly to us, is marketed by McMillan the publisher as an adult book, not as a kid's book. In one sense, I think both of us think that's crazy, but from another sense, you're absolutely right because unfortunately, most adults, even those who think about the Constitution and have read it, will ultimately reduce it to the rights provisions and find the other parts dull and boring. So in fact, I really do believe, it sounds very corny, self-important, but I really do believe it's a book that everybody can read and should read. And if there were more books like ours on the market, I don't think we would've written it. Why bother? But the fact is, there aren't many books like this one.

Emy DiGrappa (12:05):

So you're saying that most people focus on the Bill of Rights?

Sanford Levinson (12:08):

Yeah.

Emy DiGrappa (12:08):

Okay. I think that's true because that's part of the Constitution, and I think people feel like that's what affects them most is the Bill of Rights, and it's what comes on the news media, for example. Gun rights and-

Cynthia Levinson (12:22):

Yeah, exactly.

Sanford Levinson (12:23):

Yeah.

Emy DiGrappa (12:23):

Abortion rights. You can go on and on. People talk about their freedoms and what is their right, and that's why it's interesting that you're trying to focus on the Constitution and that historical document, and not necessarily the Bill of Rights.

Sanford Levinson (12:39):

Right. The original Constitution didn't have the Bill of Rights and that's added two years later, and it's fair to view it as part of really the original generation. But it's interesting what you say, that people believe that what affects them most is the Bill of Rights. In one sense, I can understand why you say that and why it's true, but in another sense, wherever you are in the political spectrum, right, left or center, you might believe that we really need to get a fix on entitlement spending, or you might believe that we really need to get a fix on immigration, or you might believe that we need to get a fix on the environment, or you might believe that climate change is the problem, or the problem of the breakdown of American infrastructure, bridges, tunnels, et cetera. The Supreme Court and lawyers have almost nothing useful to say about those because all of them will require the passage of legislation by Congress and the implementation by administrative agencies.

(13:59):

And if Congress can't pass legislation, which is by and large the case, then people get very, very upset, even scared at what they see happening around them that the national government just doesn't seem to be able to handle. So I think it is important and telling that about two thirds of the country measured in the most recent polls think the country is going the wrong direction. About a quarter of the country on a very good day, most of the time it's closer to a fifth of the country or a sixth of the country, approve of Congress or have confidence in Congress. The President is usually somewhere between 40 and 50%. Even the Supreme Court now is below 50%. And so all of this, I think, represents a frustration not simply about whether certain rights are adequately being protected or not, but the fact that people look at their medical bills or people look at ever-rising spending on medical care, because the medical system from one perspective is miraculous. From another perspective, it could bankrupt us because of the sheer expense that these miraculous cures might require.

(15:31):

And so, people want government to do something about it. They see that the national government isn't, and that's all because of structural problems, not because the Bill of Rights dictates a given solution or prevents a given solution, or that the court can step in and save us. The court on occasion can do some useful things. On occasion, it can do quite dreadful things. But I think lawyers tend to overestimate the importance of the Supreme Court relative to solving the whole host of problems that face us as a country at any time.

Emy DiGrappa (16:14):

I'm just thinking about what Sandy is saying and I'm thinking, well, yeah, people are frustrated. I think there's no place to have a voice. I think that's the frustration. What if you are concerned about Medicare or Medicaid? What if you are concerned about the rising cost of simple things like meat or eggs or gas prices, just day-to-day things that the average person has to deal with when they go to the grocery store? So you make a decision, and especially people with low incomes, they make a decision all the time. Do they put gas in the car? Do they put groceries on their table? Do they pay their rent? These are critical things, and it feels like the government, when you say the government, even though the government's made up of a lot of people, but it feels very distant.

Cynthia Levinson (17:09):

Yeah, that's certainly true. One of the chapters we did not write, but we could... Well, we wrote about it actually. We didn't write a chapter it. We write a blog periodically related to the book. Has to do with the size of the House of Representatives, and I think one reason people feel so distant, this may be less true in Wyoming or some of the lower population states, but the population is very dispersed there, is that most people don't know who their representative is, or if they do, it's very hard to get that person's attention.

Emy DiGrappa (17:49):

That's true.

Sanford Levinson (17:50):

The present number of people in the House of Representatives, 435, was set in 1920 when the population of the United States was, I think, about 120 million or so. Were now about 340 million. You might think that a normal business or normal organization would hire additional people, but obviously we don't. So this next election cycle, that is for the next 10 years, the typical House district will have about 750,000 people in it. Wyoming I think is the smallest district with 550,000, but 550,000 is obviously still a lot of people. And in 1787, as a matter of fact, the argument was whether one shouldn't put into the constitution requirement that representation be one representative for every 30,000 people. Now, that would be insane in the 21st century because that would be a house of thousands of representatives and one couldn't imagine how that operates. But it's also very difficult to look at the modern House, again, whatever your politics, and believe that whatever we mean by representation can be adequately done by one person for 700,000 people.

(19:33):

And Congress could raise the number of representatives tomorrow. Doesn't require a constitutional amendment. But for a variety of reasons, it's not going to happen, I think in part because neither party at the end of the day believes it would necessarily be in their interests to change this status quo, and that gets to an issue we do talk about which is a mixture of rights and structures, that many, many states, and by the time we visit Wyoming, I will know more about the specifics of Wyoming, but many of the Western states have the opportunity for initiatives in referendum, which means by definition that if you're not satisfied with what the legislatures are doing, you can do an end run around them and go directly to the people. And that's very, very important. In Nebraska, for example, which is one of my favorite states in this regard, they got rid of their State Senate in 1934 because of a decision that it was a small enough state that it really didn't need two houses.

(20:49):

Now, the State Senate would never have voluntarily abolished itself, but that wasn't necessary in Nebraska because the people of Nebraska could vote. One of the realities of American national government that we write about in the book is that there's no safety valve of the kind you find in most of the states that allow this kind of direct democracy end run. At the very least, there should be much more discussion about whether that would be a good idea for the national government because if you look across the country, states ranging from Maine to California have aspects of direct democracy. 49 of the 50 states require popular ratification for a constitutional amendment. Delaware is the only state that doesn't. And this I think has very, very important consequences for what is practically possible, and this is the kind of thing we write about.

Emy DiGrappa (22:00):

Well, it makes me think that we shouldn't have politicians. Just regular people should hold office and they should have term limits, and so that people who have boots on the ground who actually work in these issues all day long all the time should be the ones that have the loudest voice. But that's not what happens. It's so complicated. So I'm excited that you're creating community conversations. What do you hope? What's the end goal in these community conversations? What do you want people to walk away with?

Sanford Levinson (22:32):

Here's where the fact that I'm an academic probably comes out, that I view the conversations themselves as a very good thing because, quite frankly, they're not really happening in the country we live in now. My favorite of all presidential elections occurred in 1912 because three of the candidates, Woodrow Wilson, Teddy Roosevelt, Eugene Debs, were serious constitutional reformers, and William Howard Taft was by far the most able defender of the existing order. Wilson obviously won. There were four important constitutional amendments during that decade, but even more to the point, people felt comfortable discussing the possibility of constitutional reform. Today, that conversation just isn't happening. There is no major national political leader who says, "Maybe we need to take seriously the possibility that a constitution really basically drafted in 1787 needs significant updating. Let's talk about it." So I would be overjoyed with simply serious conversations. There are some things that I feel quite strongly about that we ought to do. Other things that I'm not sure we ought to do, but I feel very frustrated that we're just whistling past the graveyard and not having the conversation at all.

Cynthia Levinson (24:17):

I completely agree with everything Sandy said. Talking is good. People often listen when their neighbors talk. So just the conversations themselves are very valuable and we're very grateful to Nancy Turner Stevenson and Natalie [inaudible 00:24:35] and to you and the theater for proposing these reaching out to us that the incredible amount of organization that's gone into this. We have a friend who holds deliberative polls, which consists of people getting together and talking about issues of the moment, especially ones around there's an upcoming election, and they're given materials like our book, though in his case, they're related to the topics of the elections, and they talk. And what he typically finds is that when people talk and listen, they actually approach each other. They can begin to come together to find some common ground. And of course, what we hope is that some of that common ground will consist of more open-mindedness about the constitution and its laws and what can be done about it, as well as an awareness that some of the issues that people get so upset about now may not have to be intransigent. There may be ways of working around them together. That's what I hope would come out of these conversations.

Emy DiGrappa (25:50):

I certainly do too. I think that I would've said that five years ago, six years ago. I don't know when we got so divided where people are actually afraid to come out and say how they think. I know families that are poor because they are either Democrat or Republican. They have different ideas, they have different feelings about what's what, and this is that, and they are divided and it's a family.

Cynthia Levinson (26:17):

Well, in some ways, talking about the constitution is a neutral way of people talking. It's not anything that any of us have any responsibility for. None of us was there in 1787, so we don't have to talk about... You brought up some issues, voting rights, abortion rights, that sort of thing. We don't have to talk about those specifics and get into how divisive and emotional those can be. We can talk about the context of the Constitution, which affects those issues, but it's neutral territory in a way.

Emy DiGrappa (26:59):

That's a good way to put it.

Sanford Levinson (27:00):

Any discussion of constitutional reform, which I strongly favor, does not include a magic wand saying these changes would happen tomorrow. Basically what we would be talking about would be what kinds of changes might we want to see in 2032? We know that it takes real time for changes to happen. My assumption is that if one is interested in a conversation, let's say about the presidential veto, how much power should the President have to be able just to shelve a bill that got the support of both houses of Congress? It turns out to be that the President of the United States has a stronger veto power than almost any other president of the world, those countries that have presidential systems, many, many governors. And if we're talking about the President elected in 2032, I have no idea who that will be. I have no idea what political party he or she will come from. And I actually think that whatever your politics, we could have a very civil discussion about whether a president should be so strong relative to Congress in this respect in 2032.

(28:35):

Whereas if we were to say, okay, how much power do you want Joe Biden to have, then you could easily predict that that discussion would take a very sharp political form. And the virtue of structural issues, and the reason that most people wrongly believe they're dull and boring, is that they don't usually strike you as immediately connected to the things that you're most concerned about. And as I say, if we had a magic wand and could change them tomorrow, then you would very quickly have strong views about Joe Biden and how much power he ought to have or Donald Trump and how much power he ought to have. But if you're talking about 2032, for better, and maybe for worse, the conversation is more abstract. It really does require people to say, well, how should we design a government? And I know this is walking on eggs. Is it really the case that Wyoming and California should have the same two votes in Congress in the Senate given the disparity of population?

Cynthia Levinson (29:59):

We're looking forward to bringing that up live and in person when we're there.

Emy DiGrappa (30:00):

Those are really good points, and I think that those are really great conversation starters when you take people outside of the amendments and you pull them back into when the Constitution was created as a historical document, what it was then and what it is now, and how we've changed dramatically as a country.

Cynthia Levinson (30:24):

Or not so dramatically, actually. Not so dramatically.

Sanford Levinson (30:27):

The Constitution was designed for a country of approximately four million people in 1790 that stretched from what we now call Maine to the southern border of Georgia and over to the east coast of the Mississippi. Nobody was thinking of Wyoming or California or Hawaii or the almost hundred-time expansion of the US population. And so it's a very practical and theoretical and very tough question on what might be called the scalability of decisions made in 1787 and not really changed very much by the amendments. Almost all the amendments deal with rights, Bill of Rights, or eligibility for election, which is very important, or our housekeeping amendment. The 12th Amendment establishes the separation of the President, Vice President for elections, the 25th Amendment, which has not been at all consequential in fact, but it is designed to handle the problem of the incapacitated President. But initially enough, nobody else.

(31:50):

So right now, it is very, very clear that Dianne Feinstein is incapacitated. There are serious people who believe that, although a great Senator, especially if you're a Democrat, that was then and now she is really incapacitated, but we have no 25th Amendment analog. And Ruth Bader Ginsburg, many, many people, especially if you're a Democrat, believe that she stayed too long, and this was a function of life tenure, but there was no way to push her out of the court. And she rolled the dice and lost, quite frankly.

Emy DiGrappa (32:38):

So you can tell that Sandy is a constitutional lawyer. I'm married to a constitutional lawyer.

Cynthia Levinson (32:46):

Really?

Emy DiGrappa (32:47):

He practices energy law, but he went to Georgetown and that was one of his degrees, is constitutional law and tax law. He would love to be sitting right here.

Cynthia Levinson (32:59):

Well, I hope we'll meet him when we're in town.

Emy DiGrappa (33:00):

Yeah, I hope so too. So I think the challenge is for me, and I think for both of you, I think the book is wonderful, and I've been just doing research on it. I think it's excellent to raise these questions. I think you have to put them in a context, and I don't know how many of these community conversations you've had, but you're going to be in Teton County, which is very liberal, very Democrat. The conversations that go on across in the other four communities that are going to be doing live-streaming are very conservative. Not that that's good or bad, but I think the challenge is to really pull people in to understand the conversation they're having like you did with me. We're not talking about personal freedoms. That's not what we're talking about.

(33:49):

We're talking about a document that was written and why we wrote this book and what are the fault lines? What did we discover as the fault lines in the Constitution? I think for me personally, just really getting clear on what you think and what you've discovered in writing the book or why you wrote the book, what are the fault lines that you want people to have a conversation around?

Cynthia Levinson (34:13):

Right. There are 20 in the book, and I will highlight several of them. Sandy and I have a debate in the back of the book, and we have an ongoing debate about what each of us thinks is the most egregious part of the Constitution. Sandy, as you might have heard, thinks it's the difficulty in amending it. I think it's the Senate, which he's talked about also, so we will be more crystalline about the high points of the fault lines.

Sanford Levinson (34:42):

Both liberals and conservatives in Wyoming like the fact that Wyoming gets two Senators, and I think that's important because some of the divisions are really partisan in a classic sense. Others really do relate back to the debates in 1787 about the relative power of small states and large states. And my hunch is that Vermonters and Wyomingites agree, if on very little else, on the virtue of equal representation of the Senate, whereas we're in Texas, and for us, what is most noticeable is that the 28 million Texans have the same voting power in the Senate as the 550,000 Wyomingites, so that I suspect might generate an interesting conversation in itself. And then there'll be these other issues where I might expect the liberal and conservative views to come out. But on something like the presidential veto in 2032, I really don't know what the liberal or conservative view would be or on the difficulty of amending the Constitution.

Cynthia Levinson (36:12):

It'll be interesting, too, to hear responses as we talk about the electoral college, which we think is a major fault line, but I can imagine there may well be people in Wyoming who think it helps right the balance that you all wouldn't want popular vote for the Presidents perhaps.

Emy DiGrappa (36:32):

That is so interesting because ever since I learned in the university about the electoral college, I never liked it. I never liked it. I thought it was just wrong.

Sanford Levinson (36:45):

You agree with the majority in every poll taken since 1944. So one of the things we talk about in the book is why has nothing changed since 1944? And that touches in part on the sheer difficulty of constitutional amendment and the fact that it needs to get through both the House and the Senate with a two-thirds vote. And we came close to that in 1969, but it was beaten back by a filibuster of white supremacist southern senators, because one of the things we can talk about when we're Wyoming is that the electoral college does not particularly favor small states. The Senate favors small states. The electoral college favors, by and large, large battleground states, so presidential candidates do not campaign in Wyoming or in Vermont. They campaign in Pennsylvania and Michigan. And I think that most people recognize that that's the major consequence to the electoral college today, but we're stuck with it or we appear to be stuck with it.

Emy DiGrappa (38:03):

Well, we're not stuck with anything, Sandy.

Cynthia Levinson (38:07):

That's the spirit.

Emy DiGrappa (38:08):

I know. We have to have a good fighting spirit. So anyway, it was great talking to you two today, and I'll let you go. I really enjoyed it. I can't wait to meet you, and I hope we can have more really vibrant conversations around these subjects.

Cynthia Levinson (38:25):

Good. We're looking forward to that.

Sanford Levinson (38:27):

We're looking forward to them.

Emy DiGrappa (38:27):

All right. Thank you.

Cynthia Levinson (38:29):

Take care. Bye.

Emy DiGrappa (38:49):

Bye.

(38:49):

Thank you for joining us for this episode of What's Your Why, brought to you by Wyoming Humanities, with support from Wyoming Community Foundation and generous supporters like you. To learn more, go to thinkwhy.org. Subscribe and never miss a show.