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Speaker 1: We are the world's oldest democracy. Did you know that

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Speaker 1: the United States of America as young as we are,

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Speaker 1: we're the world's oldest democracy. And a lot of us

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Speaker 1: give credit to our founding fathers and their genius with

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Speaker 1: the Constitution. And there seems to be some belief in

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Speaker 1: certain circles that it was like handed down by God

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Speaker 1: in uh, infallible, like they talked about with the pope um.

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Speaker 1: But could you do a little tweaking around the edges

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Speaker 1: of the Constitution? I find that a fascinating conversation that

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Speaker 1: I know our friend Tim Sanderford has engaged in many

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Speaker 1: times over the years. Well, certainly mechanism exists within the

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Speaker 1: Constitution to amend itself, so obviously we agree sometimes it

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Speaker 1: ought to be demand amended. Uh. Tim Santa for Vice

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Speaker 1: President for Litigation at the Goldwater Institute, just took part

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Speaker 1: in a really interesting sounding exercise with some other thinkers

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Speaker 1: that he's going to tell us about wild job out

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Speaker 1: a little bit. Tim, how are you, sir? I'm great,

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Speaker 1: Thanks for having me back. Quick easy question. Is the

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Speaker 1: Constitution perfect as is? No? And it wasn't perfect when

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Speaker 1: it was first produced, obviously, because we've had all those amendments. Yeah,

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Speaker 1: so what was this? What was this conference? He took

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Speaker 1: part in It sounds fascinating. It was, And I was

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Speaker 1: asked to participate in a project with the National Constitution

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Speaker 1: Center in Philadelphia with a group of other law professors

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Speaker 1: and lawyers too. Well. It was a two stage project.

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Speaker 1: The first thing we did was we divided up into

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Speaker 1: teams and proposed brand new constitutions. We wrote our own

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Speaker 1: versions of what we would like to see as constitutions.

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Speaker 1: I'll bet your head, I'll bet yours had more Star

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Speaker 1: Trek references than most. I wish I had thought of that. No,

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Speaker 1: it it was. There was a team Conservative, Team Progressive,

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Speaker 1: and Team Libertarian, and we I was on the Libertarian team,

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Speaker 1: and we proposed a constitution that was a couple of

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Speaker 1: years ago. This time around, we we all of us,

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Speaker 1: got together and we hammered out proposed amendments to the

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Speaker 1: existing constitution that we could all more or less agree on,

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Speaker 1: all three of these teams, and so we g five proposals.

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Speaker 1: Well so, no, so all three teams agreed on these

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Speaker 1: five posals, more or less. There were there were some descents.

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Speaker 1: In fact, I disagreed with one of the amendments when

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Speaker 1: we were finally finished. But we did a pretty good job.

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Speaker 1: I thought of coming up with some you know, they're

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Speaker 1: not they're not huge things, but they're simply they're important things.

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Speaker 1: Well let's here, Well, people, we get there if you

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Speaker 1: don't mind terribly. So, like, how many did each team

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Speaker 1: produce that ended up getting rejected? Well, there was one

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Speaker 1: lengthy effort to change how the Senate operates, change the

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Speaker 1: apportionment of the Senate and everything, and libertarians and conservatives

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Speaker 1: were opposed to that, and so that got thrown out.

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Speaker 1: And you know, try and redistricting and things like that,

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Speaker 1: and we were opposed to that, and an effort to

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Speaker 1: create a bipartisan commission. And I personally don't think the

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Speaker 1: Constitution should make any reference to to political parties at all.

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Speaker 1: I think a dangerous step to take. So we we

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Speaker 1: rejected that, but we agreed on eliminating the natural born

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Speaker 1: citizenship requirement for the presidency. For example, we you know,

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Speaker 1: it's silly that that you have to be born within

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Speaker 1: the unit United States when you think that a lot

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Speaker 1: of our best citizens have been immigrants to this country.

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Speaker 1: So instead of saying a person has to be thirty

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Speaker 1: five years old and born here. Why not make it

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Speaker 1: that you have to be a citizen for a certain

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Speaker 1: amount of time. I I suggested thirty five years. We

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Speaker 1: narrowed it down to fifteen years. Be a citizen of

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Speaker 1: the United States and live in the United States for

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Speaker 1: fourteen or fifteen years, and you can be president of

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Speaker 1: the United States. But what was the original of the

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Speaker 1: founding fathers with that anyway, Well, they were concerned about

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Speaker 1: people coming to the United States from foreign countries and

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Speaker 1: getting getting a large following and then taking over the

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Speaker 1: machinery of government, which was not at all an unreasonable worry.

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Speaker 1: In the early United States, there were some very weird

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Speaker 1: efforts to like, you know, the Burger Conspiracy, to separate

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Speaker 1: the Western States and declare their independence from the Eastern States,

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Speaker 1: and all these sorts of things that went on in

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Speaker 1: early America. And so it was legitimate for them to

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Speaker 1: be worried about that at the early stages of our democracy.

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Speaker 1: But we're so stable now that that see is less

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Speaker 1: likely concerned and just making sure somebody, you know it

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Speaker 1: has been a citizen for a long time should being

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Speaker 1: good enough. Well, welcome Manchurian candidate. Then they all hailed

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Speaker 1: President Schwarzenegger. If that's what you want, go ahead. Another

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Speaker 1: one is is to change how the term in post

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Speaker 1: term limits on justices of the Supreme Court, instead of

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Speaker 1: it being you serve for life. Basically, I mean the

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Speaker 1: current constitution says good behavior, which means the only only

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Speaker 1: way you can get rid of a Supreme Court justice

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Speaker 1: is impeachment or if the person dies or resigned. And

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Speaker 1: instead we suggested, how about making it that they serve

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Speaker 1: staggered eighteen year terms. A certain number of justices is

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Speaker 1: leaving the court and being replaced, not in not not

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Speaker 1: in sync with a new president, because you don't want

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Speaker 1: to make it so that your entire legal system changes

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Speaker 1: every time somebody can collected the office. That would be

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Speaker 1: a disaster, but instead staggered. But make it long and

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Speaker 1: stable so that you have a turnover in office that

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Speaker 1: seems legitimate. Hey, just out of curiosity, I have friends

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Speaker 1: who range from geniuses to half wits um and I

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Speaker 1: which one? Which one am? I? Joe, what's no lo um?

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Speaker 1: I I don't recall running into anybody who was staunchly

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Speaker 1: opposed to that proposal. As that sort of thing gets

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Speaker 1: kicked around, Tim, do you know a lot of thinkers

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Speaker 1: who think, oh, no, no, we've gotta stick with the

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Speaker 1: lifetime appointment. I don't think there's anybody who's who's of

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Speaker 1: that view, But I do think people are worried that

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Speaker 1: fiddling with how the Supreme Court serves opens the door

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Speaker 1: to things like court packing and and and coming up

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Speaker 1: with a system that would make it overly political, so

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Speaker 1: that you know, Republicans get elected and and completely overturned

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Speaker 1: the constitution, or Democrats get completely overturned the Constitution, which

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Speaker 1: has been tried in the past, and so we want

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Speaker 1: to come up with a system that avoid those risks.

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Speaker 1: But no, I don't think anybody in principle thinks that

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Speaker 1: it has to be you know, lifetime appointments. But we

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Speaker 1: do want judges to be insulated from the political process.

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Speaker 1: That's very important to be able so that they can

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Speaker 1: impose legal restriction on politics. What the Constitution does is

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Speaker 1: it imposes restrictions on democracy by making democracy abide by

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Speaker 1: the law. That's a very unusual thing and that's very

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Speaker 1: important to preserve. So that's that's our main concern. Well,

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Speaker 1: so I think what most people hate is just the

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Speaker 1: randomness of it. The idea that three people kick it,

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Speaker 1: and Trump gets to a point them and if they don't, nobody,

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Speaker 1: he gets a point nobody. You know, seems weird, but

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Speaker 1: aren't you gonna end up with even if you stagger it?

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Speaker 1: Won't you basically have Supreme Court justices on the ballot.

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Speaker 1: Then when you go to vote for president, the candidate says,

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Speaker 1: here are the two people I'm going to appoint, and

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Speaker 1: you know in the yeah, I think so. But I

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Speaker 1: think that's already the system. I mean when one of

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Speaker 1: the main reasons why people voted for Donald Trump is

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Speaker 1: because of the Supreme Court, and they knew that justices

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Speaker 1: were getting old and we're likely to die in office,

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Speaker 1: and they wanted a Republican in there who is going

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Speaker 1: to appoint justices that they agree with. So that's already

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Speaker 1: the system. And if I think of making it more

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Speaker 1: overt and acknowledging that instead of pretending otherwise, is probably

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Speaker 1: a good step. Another here's the one that I disagreed

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Speaker 1: with everybody else. I thought this was a good idea.

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Speaker 1: We changed the impeachment process to try and clarify what

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Speaker 1: the standards are and to say that a president can

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Speaker 1: be impeached for abusing his power as well as for illegality,

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Speaker 1: which I think is correct. But I also thought that

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Speaker 1: the president should be impeachable for either insanity or mental incompetence.

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Speaker 1: And the other parties were people involved in the project.

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Speaker 1: We're concerned about that because they were afraid that Congress

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Speaker 1: might use that power to remove presidents based on pure

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Speaker 1: political disagreement. I'm not worried about that. I think that

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Speaker 1: the president should be removable based on political disagreement. I

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Speaker 1: don't see anything wrong with that. The Congress is democratically elected,

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Speaker 1: so I don't think that's an undemocratic thing. But everybody

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Speaker 1: was against that proposed. I remember when we've talked about

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Speaker 1: this back during the impeachments. Your feeling is we should

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Speaker 1: have had more impeachments over the years, right, yeah, oh,

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Speaker 1: far more impeachments than we've had. We've we've we've impeached

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Speaker 1: if you add presidents and federal judges. We hadn't teached

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Speaker 1: fewer than a hundred people in American history. Is it

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Speaker 1: really the case that there have been fewer than a

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Speaker 1: hundred public officials who have abused their power or been

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Speaker 1: so incompetent that they deserve to be removed? I don't

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Speaker 1: think so. I think a lot more deserved to be

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Speaker 1: removed and just weren't. So Yeah, just to clarify, you

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Speaker 1: do not have a problem with a president who's so

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Speaker 1: unpopular with Congress they say, look, this guy's a piece

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Speaker 1: of crap. Let's call him crazy and just vote amount.

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Speaker 1: Totally think that's that's its perfectly legitimate to do. But

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Speaker 1: so don't you end up with So if you had

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Speaker 1: a giant red wave. Let's let's pick normal times, not

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Speaker 1: the times we live in. But if we lived in

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Speaker 1: normal times and you had a giant red wave right

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Speaker 1: now like Obama had that, I mean that the reverse.

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Speaker 1: But if you had a giant red wave right now, Um,

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Speaker 1: so they just get the boot out Biden because I

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Speaker 1: got the numbers. I don't see why not if the

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Speaker 1: if the voters are that much against the president's party,

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Speaker 1: then why not remove them? They're going if Congress can

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Speaker 1: find other ways to stymy the president's efforts, if they're

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Speaker 1: that opposed to him, anyway, they can, you know, eliminate

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Speaker 1: his powers, they could deprive them of funding, they can

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Speaker 1: do all these other things. Why not allow them to

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Speaker 1: impeach him and replace him with somebody that everybody else

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Speaker 1: can get along with. I think that would be perfectly

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Speaker 1: if Donald Trump had been impeached and removed from office,

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Speaker 1: he would have been replaced by another Republican. It's not

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Speaker 1: like it would have been all of a sudden the

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Speaker 1: Democrats on the White House, Mike pens would have become president,

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Speaker 1: so it wouldn't have So I don't I don't think

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Speaker 1: that's really a major concern. And I think the real

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Speaker 1: the opposition is that they don't want the president to

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Speaker 1: be just a figurehead of Congress. But I think we're

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Speaker 1: at more risk of a of a of a dangerously

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Speaker 1: independent president, and and a democratic system should lean in

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Speaker 1: favor of Congress, which is more democratic. We'll hang on

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Speaker 1: a second before we forgette. I was going to say,

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Speaker 1: in the wake of every single chief executive grabbing more

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Speaker 1: and more power and making more and more extreme executive

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Speaker 1: actions over the last you know, thirty years, I get

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Speaker 1: the appeal of that. Um, do we have two left him?

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Speaker 1: I think we got three left of them are kind

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Speaker 1: of boring, So I want to talk about Tim participated

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Speaker 1: in a radical back in Owl recently, in which they

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Speaker 1: shredded the constitution, set fire to the shreds and proposed

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Speaker 1: changes to the Sacred Document. For instance, Tim believes the

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Speaker 1: government should be able to force you to quarter troops.

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Speaker 1: I gotta stay somewhere right. You know. This all brings

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Speaker 1: to mind the episode The Omega Glory and which Captain

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Speaker 1: Kirk quotes from the Constitution's preamble and a dramatic climactic moment,

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Speaker 1: an episode that makes no sense until you realize it

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Speaker 1: ought to have been the Declaration of Independence and the

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Speaker 1: whole episode would have been great anyway. You participated in

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Speaker 1: an exercise in which a bunch of smart people got

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Speaker 1: together and said, if we could change the conversation constitution easily,

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Speaker 1: what would we change? And we've gone through a couple

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Speaker 1: of them. If you didn't hear those grabbed the podcast

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Speaker 1: look for Armstrong and getting on demand, what other changes

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Speaker 1: did you want to make? Well, Joe was right. There

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Speaker 1: was only two, not three left, and the other two

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Speaker 1: are to allow Congress what we call a legislative veto,

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Speaker 1: which which means allow Congress to block the president from

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Speaker 1: taking actions that are you know, not necessarily law kind

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Speaker 1: of actions. So, for example, um the president, the president

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Speaker 1: is in charge of all the regulatory agencies, everything from

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Speaker 1: the E p A to the you know T s A,

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Speaker 1: and those agencies often make regulations or rules that aren't

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Speaker 1: technically law, but are you know, binding on people. And

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Speaker 1: this is a big problem, of course, because these agencies

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Speaker 1: are really largely on democratic bureaucrats is coming up with

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Speaker 1: rules to impose on the rest of us. So we

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Speaker 1: wanted to allow Congress broader authority to block that from

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Speaker 1: happening when they think that that ought not to be

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Speaker 1: the case. So we gave Congress the power to block

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Speaker 1: executive actions. Now, the term executive actions would also include

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Speaker 1: things like deploying troops if the president decides to send

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Speaker 1: the military to some foreign country without a declaration of war.

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Speaker 1: Congress had come in and take and veto that and

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Speaker 1: the term we use as veto. So I wasn't really

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Speaker 1: turned on by this amendment myself. I mean, the other

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Speaker 1: members of the team were really into this personally. I

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Speaker 1: don't think this changes a lot because Congress can already

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Speaker 1: do that. Frankly, Congress could already pass a law to

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Speaker 1: block all of these things from happening, and it doesn't

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Speaker 1: do that because Congress honestly loves to wash its hands

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Speaker 1: of responsibility They love it when the agencies do things

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Speaker 1: because then they can claim, oh, it wasn't me, I

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Speaker 1: didn't vote for the thing, you know, and pretend that

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Speaker 1: they're innocent. So I don't think that that accomplishes a lot,

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Speaker 1: but it also doesn't hurt. So I voted in favor

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Speaker 1: of that. Was it just a simple majority or a supermajority?

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Speaker 1: The way that we oh our proposal is to allow

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Speaker 1: a simple majority of the of both houses of Congress

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Speaker 1: to veto any executive action. I'm kind of surprised Team

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Speaker 1: Liberal voted for that. Yeah, me too, but there I

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Speaker 1: think they were concerned about things like the you know,

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Speaker 1: the presidents sending troops overseas and things like that too.

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Speaker 1: And then our final amendment was to make it easier

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Speaker 1: to amend a constitution. It's very hard to amend you

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Speaker 1: as constitution. And there's there's this. If you're a libertarian

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Speaker 1: like me, you think probably right away you're like, well,

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Speaker 1: I wanted to be hard to change the constitution. Well,

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Speaker 1: that's not necessarily the case. You might want to make

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Speaker 1: it easier for this reason. If you don't amend the constitution,

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Speaker 1: judges will find ways of perverting the existing constitution. To

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Speaker 1: allow something to happen that they shouldn't allow to happen,

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Speaker 1: and then that sets a precedent for the future. So,

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Speaker 1: for example, it would have been better if the Constitution

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Speaker 1: had been amended to to make things like social Security

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Speaker 1: or the regulatory welfare state agencies. To put those into

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Speaker 1: the Constitution would have been a better thing then what

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Speaker 1: happened in the nineteen thirties, which is that the Supreme

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Speaker 1: Court changed how it interpreted the Constitution to allow these

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Speaker 1: things to happen. By changing the interpretation of the existing terms,

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Speaker 1: you open the door to all sorts of craziness to

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Speaker 1: come in the in the decades to follow. It's better

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Speaker 1: to amend that It's better to have bad amendments to

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Speaker 1: the Institution then to allow the courts to pervert the

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Speaker 1: existing language to allow bad things to happen. So we

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Speaker 1: decided to make it easier to amend the Constitution. And

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Speaker 1: one of the ways that we do that is by

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Speaker 1: saying that if the majority of the entire country is

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Speaker 1: in favor of the amendment, then that's uh. Then that's

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Speaker 1: good enough, even if a number of states don't vote

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Speaker 1: for it. The way that the current amendment is done

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Speaker 1: is calculated by states, which means, of course that that

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Speaker 1: states with very few people, like Wyoming, they get the

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Speaker 1: same kind of vote as a state like California with

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Speaker 1: a huge number of people. We think that there should

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Speaker 1: be a way that the total population of the United

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Speaker 1: States counts instead of doing it on a state by

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Speaker 1: state basis. So we we moderated the language a little

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Speaker 1: bit to kind of make it slightly easier to amend

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Speaker 1: the US Constitution. That brings up an obvious question, how

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Speaker 1: do you feel about the electoral college, which is a

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Speaker 1: similar idea. Well, I think there's been The best argument

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Speaker 1: I've heard is proposal that I've heard for changing the

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Speaker 1: electoral collegists to eliminate the people and just change it

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Speaker 1: to a point system so that you automatically get points

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Speaker 1: based on what states you win, and those are calculated

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Speaker 1: like an automatic electoral college, and that gets rid of

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Speaker 1: the problem of faithless electors. Electric we're almost out of time.

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Speaker 1: Give me a letter grade for the founding fathers on

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Speaker 1: the Constitution as they wrote it. What do you give them? Oh? Oh,

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Speaker 1: a solid a, not an a plus, but a solid

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Speaker 1: ay and like an old timey a, not an inflated

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Speaker 1: modern yeah. Oh yeah no not not a feel good

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Speaker 1: kind of e for effort kind of a Tim Sander.

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Speaker 1: Someone don't even get that someone went home without he

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Speaker 1: actually doing their work. Tim Sander for Vice President for

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Speaker 1: Litigation of the Goldwater Institute. Really interesting stuff, Tim, thanks

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Speaker 1: for the time as always. Yeah, that was great. Thank

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Speaker 1: you guys,