WEBVTT - Five Changes To The Constitution: Tim Sandefur Talks to A&G

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<v Speaker 1>We are the world's oldest democracy. Did you know that

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<v Speaker 1>the United States of America as young as we are,

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

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<v Speaker 1>give credit to our founding fathers and their genius with

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<v Speaker 1>the Constitution. And there seems to be some belief in

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<v Speaker 1>certain circles that it was like handed down by God

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<v Speaker 1>in uh, infallible, like they talked about with the pope um.

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<v Speaker 1>But could you do a little tweaking around the edges

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<v Speaker 1>of the Constitution? I find that a fascinating conversation that

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<v Speaker 1>I know our friend Tim Sanderford has engaged in many

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<v Speaker 1>times over the years. Well, certainly mechanism exists within the

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<v Speaker 1>Constitution to amend itself, so obviously we agree sometimes it

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<v Speaker 1>ought to be demand amended. Uh. Tim Santa for Vice

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<v Speaker 1>President for Litigation at the Goldwater Institute, just took part

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<v Speaker 1>in a really interesting sounding exercise with some other thinkers

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<v Speaker 1>that he's going to tell us about wild job out

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

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<v Speaker 1>Thanks for having me back. Quick easy question. Is the

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<v Speaker 1>Constitution perfect as is? No? And it wasn't perfect when

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

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<v Speaker 1>so what was this? What was this conference? He took

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<v Speaker 1>part in It sounds fascinating. It was, And I was

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<v Speaker 1>asked to participate in a project with the National Constitution

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<v Speaker 1>Center in Philadelphia with a group of other law professors

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<v Speaker 1>and lawyers too. Well. It was a two stage project.

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<v Speaker 1>The first thing we did was we divided up into

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<v Speaker 1>teams and proposed brand new constitutions. We wrote our own

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<v Speaker 1>versions of what we would like to see as constitutions.

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<v Speaker 1>I'll bet your head, I'll bet yours had more Star

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<v Speaker 1>Trek references than most. I wish I had thought of that. No,

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<v Speaker 1>it it was. There was a team Conservative, Team Progressive,

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<v Speaker 1>and Team Libertarian, and we I was on the Libertarian team,

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<v Speaker 1>and we proposed a constitution that was a couple of

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<v Speaker 1>years ago. This time around, we we all of us,

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<v Speaker 1>got together and we hammered out proposed amendments to the

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<v Speaker 1>existing constitution that we could all more or less agree on,

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<v Speaker 1>all three of these teams, and so we g five proposals.

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<v Speaker 1>Well so, no, so all three teams agreed on these

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<v Speaker 1>five posals, more or less. There were there were some descents.

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<v Speaker 1>In fact, I disagreed with one of the amendments when

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<v Speaker 1>we were finally finished. But we did a pretty good job.

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<v Speaker 1>I thought of coming up with some you know, they're

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<v Speaker 1>not they're not huge things, but they're simply they're important things.

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<v Speaker 1>Well let's here, Well, people, we get there if you

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

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<v Speaker 1>produce that ended up getting rejected? Well, there was one

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<v Speaker 1>lengthy effort to change how the Senate operates, change the

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<v Speaker 1>apportionment of the Senate and everything, and libertarians and conservatives

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<v Speaker 1>were opposed to that, and so that got thrown out.

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<v Speaker 1>And you know, try and redistricting and things like that,

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<v Speaker 1>and we were opposed to that, and an effort to

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<v Speaker 1>create a bipartisan commission. And I personally don't think the

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<v Speaker 1>Constitution should make any reference to to political parties at all.

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<v Speaker 1>I think a dangerous step to take. So we we

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<v Speaker 1>rejected that, but we agreed on eliminating the natural born

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<v Speaker 1>citizenship requirement for the presidency. For example, we you know,

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<v Speaker 1>it's silly that that you have to be born within

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<v Speaker 1>the unit United States when you think that a lot

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<v Speaker 1>of our best citizens have been immigrants to this country.

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<v Speaker 1>So instead of saying a person has to be thirty

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<v Speaker 1>five years old and born here. Why not make it

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<v Speaker 1>that you have to be a citizen for a certain

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<v Speaker 1>amount of time. I I suggested thirty five years. We

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<v Speaker 1>narrowed it down to fifteen years. Be a citizen of

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<v Speaker 1>the United States and live in the United States for

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<v Speaker 1>fourteen or fifteen years, and you can be president of

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<v Speaker 1>the United States. But what was the original of the

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<v Speaker 1>founding fathers with that anyway, Well, they were concerned about

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<v Speaker 1>people coming to the United States from foreign countries and

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<v Speaker 1>getting getting a large following and then taking over the

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<v Speaker 1>machinery of government, which was not at all an unreasonable worry.

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<v Speaker 1>In the early United States, there were some very weird

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<v Speaker 1>efforts to like, you know, the Burger Conspiracy, to separate

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<v Speaker 1>the Western States and declare their independence from the Eastern States,

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<v Speaker 1>and all these sorts of things that went on in

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<v Speaker 1>early America. And so it was legitimate for them to

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<v Speaker 1>be worried about that at the early stages of our democracy.

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<v Speaker 1>But we're so stable now that that see is less

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<v Speaker 1>likely concerned and just making sure somebody, you know it

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<v Speaker 1>has been a citizen for a long time should being

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<v Speaker 1>good enough. Well, welcome Manchurian candidate. Then they all hailed

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

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<v Speaker 1>one is is to change how the term in post

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<v Speaker 1>term limits on justices of the Supreme Court, instead of

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<v Speaker 1>it being you serve for life. Basically, I mean the

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<v Speaker 1>current constitution says good behavior, which means the only only

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<v Speaker 1>way you can get rid of a Supreme Court justice

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<v Speaker 1>is impeachment or if the person dies or resigned. And

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<v Speaker 1>instead we suggested, how about making it that they serve

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<v Speaker 1>staggered eighteen year terms. A certain number of justices is

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<v Speaker 1>leaving the court and being replaced, not in not not

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<v Speaker 1>in sync with a new president, because you don't want

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<v Speaker 1>to make it so that your entire legal system changes

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<v Speaker 1>every time somebody can collected the office. That would be

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<v Speaker 1>a disaster, but instead staggered. But make it long and

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<v Speaker 1>stable so that you have a turnover in office that

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<v Speaker 1>seems legitimate. Hey, just out of curiosity, I have friends

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<v Speaker 1>who range from geniuses to half wits um and I

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

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<v Speaker 1>I I don't recall running into anybody who was staunchly

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<v Speaker 1>opposed to that proposal. As that sort of thing gets

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<v Speaker 1>kicked around, Tim, do you know a lot of thinkers

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<v Speaker 1>who think, oh, no, no, we've gotta stick with the

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<v Speaker 1>lifetime appointment. I don't think there's anybody who's who's of

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<v Speaker 1>that view, But I do think people are worried that

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<v Speaker 1>fiddling with how the Supreme Court serves opens the door

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<v Speaker 1>to things like court packing and and and coming up

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<v Speaker 1>with a system that would make it overly political, so

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<v Speaker 1>that you know, Republicans get elected and and completely overturned

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<v Speaker 1>the constitution, or Democrats get completely overturned the Constitution, which

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<v Speaker 1>has been tried in the past, and so we want

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<v Speaker 1>to come up with a system that avoid those risks.

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<v Speaker 1>But no, I don't think anybody in principle thinks that

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<v Speaker 1>it has to be you know, lifetime appointments. But we

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<v Speaker 1>do want judges to be insulated from the political process.

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<v Speaker 1>That's very important to be able so that they can

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<v Speaker 1>impose legal restriction on politics. What the Constitution does is

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<v Speaker 1>it imposes restrictions on democracy by making democracy abide by

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<v Speaker 1>the law. That's a very unusual thing and that's very

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<v Speaker 1>important to preserve. So that's that's our main concern. Well,

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<v Speaker 1>so I think what most people hate is just the

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<v Speaker 1>randomness of it. The idea that three people kick it,

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

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<v Speaker 1>he gets a point nobody. You know, seems weird, but

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<v Speaker 1>aren't you gonna end up with even if you stagger it?

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<v Speaker 1>Won't you basically have Supreme Court justices on the ballot.

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<v Speaker 1>Then when you go to vote for president, the candidate says,

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<v Speaker 1>here are the two people I'm going to appoint, and

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<v Speaker 1>you know in the yeah, I think so. But I

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<v Speaker 1>think that's already the system. I mean when one of

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<v Speaker 1>the main reasons why people voted for Donald Trump is

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<v Speaker 1>because of the Supreme Court, and they knew that justices

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<v Speaker 1>were getting old and we're likely to die in office,

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<v Speaker 1>and they wanted a Republican in there who is going

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<v Speaker 1>to appoint justices that they agree with. So that's already

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<v Speaker 1>the system. And if I think of making it more

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<v Speaker 1>overt and acknowledging that instead of pretending otherwise, is probably

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<v Speaker 1>a good step. Another here's the one that I disagreed

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<v Speaker 1>with everybody else. I thought this was a good idea.

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<v Speaker 1>We changed the impeachment process to try and clarify what

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<v Speaker 1>the standards are and to say that a president can

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<v Speaker 1>be impeached for abusing his power as well as for illegality,

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<v Speaker 1>which I think is correct. But I also thought that

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<v Speaker 1>the president should be impeachable for either insanity or mental incompetence.

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<v Speaker 1>And the other parties were people involved in the project.

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<v Speaker 1>We're concerned about that because they were afraid that Congress

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<v Speaker 1>might use that power to remove presidents based on pure

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<v Speaker 1>political disagreement. I'm not worried about that. I think that

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<v Speaker 1>the president should be removable based on political disagreement. I

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

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

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<v Speaker 1>was against that proposed. I remember when we've talked about

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<v Speaker 1>this back during the impeachments. Your feeling is we should

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<v Speaker 1>have had more impeachments over the years, right, yeah, oh,

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<v Speaker 1>far more impeachments than we've had. We've we've we've impeached

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<v Speaker 1>if you add presidents and federal judges. We hadn't teached

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<v Speaker 1>fewer than a hundred people in American history. Is it

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<v Speaker 1>really the case that there have been fewer than a

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<v Speaker 1>hundred public officials who have abused their power or been

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<v Speaker 1>so incompetent that they deserve to be removed? I don't

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<v Speaker 1>think so. I think a lot more deserved to be

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<v Speaker 1>removed and just weren't. So Yeah, just to clarify, you

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<v Speaker 1>do not have a problem with a president who's so

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<v Speaker 1>unpopular with Congress they say, look, this guy's a piece

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<v Speaker 1>of crap. Let's call him crazy and just vote amount.

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<v Speaker 1>Totally think that's that's its perfectly legitimate to do. But

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<v Speaker 1>so don't you end up with So if you had

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

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<v Speaker 1>the times we live in. But if we lived in

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<v Speaker 1>normal times and you had a giant red wave right

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<v Speaker 1>now like Obama had that, I mean that the reverse.

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<v Speaker 1>But if you had a giant red wave right now, Um,

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<v Speaker 1>so they just get the boot out Biden because I

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<v Speaker 1>got the numbers. I don't see why not if the

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<v Speaker 1>if the voters are that much against the president's party,

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<v Speaker 1>then why not remove them? They're going if Congress can

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

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<v Speaker 1>that opposed to him, anyway, they can, you know, eliminate

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<v Speaker 1>his powers, they could deprive them of funding, they can

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<v Speaker 1>do all these other things. Why not allow them to

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<v Speaker 1>impeach him and replace him with somebody that everybody else

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<v Speaker 1>can get along with. I think that would be perfectly

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<v Speaker 1>if Donald Trump had been impeached and removed from office,

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<v Speaker 1>he would have been replaced by another Republican. It's not

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<v Speaker 1>like it would have been all of a sudden the

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<v Speaker 1>Democrats on the White House, Mike pens would have become president,

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<v Speaker 1>so it wouldn't have So I don't I don't think

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<v Speaker 1>that's really a major concern. And I think the real

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<v Speaker 1>the opposition is that they don't want the president to

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<v Speaker 1>be just a figurehead of Congress. But I think we're

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<v Speaker 1>at more risk of a of a of a dangerously

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<v Speaker 1>independent president, and and a democratic system should lean in

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

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<v Speaker 1>a second before we forgette. I was going to say,

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<v Speaker 1>in the wake of every single chief executive grabbing more

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<v Speaker 1>and more power and making more and more extreme executive

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<v Speaker 1>actions over the last you know, thirty years, I get

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

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<v Speaker 1>I think we got three left of them are kind

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<v Speaker 1>of boring, So I want to talk about Tim participated

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<v Speaker 1>in a radical back in Owl recently, in which they

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<v Speaker 1>shredded the constitution, set fire to the shreds and proposed

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<v Speaker 1>changes to the Sacred Document. For instance, Tim believes the

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<v Speaker 1>government should be able to force you to quarter troops.

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<v Speaker 1>I gotta stay somewhere right. You know. This all brings

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<v Speaker 1>to mind the episode The Omega Glory and which Captain

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

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<v Speaker 1>an episode that makes no sense until you realize it

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<v Speaker 1>ought to have been the Declaration of Independence and the

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<v Speaker 1>whole episode would have been great anyway. You participated in

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<v Speaker 1>an exercise in which a bunch of smart people got

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<v Speaker 1>together and said, if we could change the conversation constitution easily,

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<v Speaker 1>what would we change? And we've gone through a couple

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<v Speaker 1>of them. If you didn't hear those grabbed the podcast

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<v Speaker 1>look for Armstrong and getting on demand, what other changes

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<v Speaker 1>did you want to make? Well, Joe was right. There

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<v Speaker 1>was only two, not three left, and the other two

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<v Speaker 1>are to allow Congress what we call a legislative veto,

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<v Speaker 1>which which means allow Congress to block the president from

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<v Speaker 1>taking actions that are you know, not necessarily law kind

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<v Speaker 1>of actions. So, for example, um the president, the president

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<v Speaker 1>is in charge of all the regulatory agencies, everything from

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<v Speaker 1>the E p A to the you know T s A,

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<v Speaker 1>and those agencies often make regulations or rules that aren't

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<v Speaker 1>technically law, but are you know, binding on people. And

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<v Speaker 1>this is a big problem, of course, because these agencies

0:11:31.840 --> 0:11:34.480
<v Speaker 1>are really largely on democratic bureaucrats is coming up with

0:11:34.559 --> 0:11:36.720
<v Speaker 1>rules to impose on the rest of us. So we

0:11:36.800 --> 0:11:40.320
<v Speaker 1>wanted to allow Congress broader authority to block that from

0:11:40.360 --> 0:11:42.760
<v Speaker 1>happening when they think that that ought not to be

0:11:42.800 --> 0:11:46.120
<v Speaker 1>the case. So we gave Congress the power to block

0:11:46.360 --> 0:11:50.440
<v Speaker 1>executive actions. Now, the term executive actions would also include

0:11:50.440 --> 0:11:53.920
<v Speaker 1>things like deploying troops if the president decides to send

0:11:53.960 --> 0:11:56.880
<v Speaker 1>the military to some foreign country without a declaration of war.

0:11:57.360 --> 0:11:59.800
<v Speaker 1>Congress had come in and take and veto that and

0:12:00.160 --> 0:12:03.760
<v Speaker 1>the term we use as veto. So I wasn't really

0:12:03.800 --> 0:12:05.880
<v Speaker 1>turned on by this amendment myself. I mean, the other

0:12:05.920 --> 0:12:09.200
<v Speaker 1>members of the team were really into this personally. I

0:12:09.200 --> 0:12:11.880
<v Speaker 1>don't think this changes a lot because Congress can already

0:12:11.920 --> 0:12:14.600
<v Speaker 1>do that. Frankly, Congress could already pass a law to

0:12:14.640 --> 0:12:17.600
<v Speaker 1>block all of these things from happening, and it doesn't

0:12:17.679 --> 0:12:21.400
<v Speaker 1>do that because Congress honestly loves to wash its hands

0:12:21.400 --> 0:12:24.400
<v Speaker 1>of responsibility They love it when the agencies do things

0:12:24.440 --> 0:12:26.680
<v Speaker 1>because then they can claim, oh, it wasn't me, I

0:12:26.679 --> 0:12:28.480
<v Speaker 1>didn't vote for the thing, you know, and pretend that

0:12:28.520 --> 0:12:31.360
<v Speaker 1>they're innocent. So I don't think that that accomplishes a lot,

0:12:31.360 --> 0:12:33.640
<v Speaker 1>but it also doesn't hurt. So I voted in favor

0:12:33.679 --> 0:12:37.559
<v Speaker 1>of that. Was it just a simple majority or a supermajority?

0:12:38.440 --> 0:12:41.040
<v Speaker 1>The way that we oh our proposal is to allow

0:12:41.080 --> 0:12:43.640
<v Speaker 1>a simple majority of the of both houses of Congress

0:12:43.640 --> 0:12:47.240
<v Speaker 1>to veto any executive action. I'm kind of surprised Team

0:12:47.280 --> 0:12:50.720
<v Speaker 1>Liberal voted for that. Yeah, me too, but there I

0:12:50.720 --> 0:12:53.360
<v Speaker 1>think they were concerned about things like the you know,

0:12:53.400 --> 0:12:56.280
<v Speaker 1>the presidents sending troops overseas and things like that too.

0:12:56.960 --> 0:12:59.440
<v Speaker 1>And then our final amendment was to make it easier

0:12:59.480 --> 0:13:02.160
<v Speaker 1>to amend a constitution. It's very hard to amend you

0:13:02.200 --> 0:13:06.720
<v Speaker 1>as constitution. And there's there's this. If you're a libertarian

0:13:06.800 --> 0:13:09.079
<v Speaker 1>like me, you think probably right away you're like, well,

0:13:09.120 --> 0:13:11.160
<v Speaker 1>I wanted to be hard to change the constitution. Well,

0:13:11.200 --> 0:13:13.320
<v Speaker 1>that's not necessarily the case. You might want to make

0:13:13.360 --> 0:13:17.200
<v Speaker 1>it easier for this reason. If you don't amend the constitution,

0:13:17.840 --> 0:13:21.960
<v Speaker 1>judges will find ways of perverting the existing constitution. To

0:13:22.040 --> 0:13:25.200
<v Speaker 1>allow something to happen that they shouldn't allow to happen,

0:13:25.480 --> 0:13:27.520
<v Speaker 1>and then that sets a precedent for the future. So,

0:13:27.559 --> 0:13:30.720
<v Speaker 1>for example, it would have been better if the Constitution

0:13:30.760 --> 0:13:34.640
<v Speaker 1>had been amended to to make things like social Security

0:13:34.720 --> 0:13:39.160
<v Speaker 1>or the regulatory welfare state agencies. To put those into

0:13:39.160 --> 0:13:42.080
<v Speaker 1>the Constitution would have been a better thing then what

0:13:42.240 --> 0:13:44.600
<v Speaker 1>happened in the nineteen thirties, which is that the Supreme

0:13:44.640 --> 0:13:47.800
<v Speaker 1>Court changed how it interpreted the Constitution to allow these

0:13:47.800 --> 0:13:51.600
<v Speaker 1>things to happen. By changing the interpretation of the existing terms,

0:13:51.840 --> 0:13:54.440
<v Speaker 1>you open the door to all sorts of craziness to

0:13:54.559 --> 0:13:57.360
<v Speaker 1>come in the in the decades to follow. It's better

0:13:57.440 --> 0:13:59.640
<v Speaker 1>to amend that It's better to have bad amendments to

0:13:59.679 --> 0:14:03.160
<v Speaker 1>the Institution then to allow the courts to pervert the

0:14:03.200 --> 0:14:05.600
<v Speaker 1>existing language to allow bad things to happen. So we

0:14:05.640 --> 0:14:08.120
<v Speaker 1>decided to make it easier to amend the Constitution. And

0:14:08.160 --> 0:14:09.560
<v Speaker 1>one of the ways that we do that is by

0:14:09.600 --> 0:14:13.400
<v Speaker 1>saying that if the majority of the entire country is

0:14:13.440 --> 0:14:16.600
<v Speaker 1>in favor of the amendment, then that's uh. Then that's

0:14:16.600 --> 0:14:19.600
<v Speaker 1>good enough, even if a number of states don't vote

0:14:19.600 --> 0:14:21.440
<v Speaker 1>for it. The way that the current amendment is done

0:14:21.480 --> 0:14:24.400
<v Speaker 1>is calculated by states, which means, of course that that

0:14:24.480 --> 0:14:26.760
<v Speaker 1>states with very few people, like Wyoming, they get the

0:14:26.800 --> 0:14:28.920
<v Speaker 1>same kind of vote as a state like California with

0:14:28.960 --> 0:14:31.720
<v Speaker 1>a huge number of people. We think that there should

0:14:31.720 --> 0:14:35.680
<v Speaker 1>be a way that the total population of the United

0:14:35.720 --> 0:14:37.960
<v Speaker 1>States counts instead of doing it on a state by

0:14:37.960 --> 0:14:40.880
<v Speaker 1>state basis. So we we moderated the language a little

0:14:40.880 --> 0:14:43.640
<v Speaker 1>bit to kind of make it slightly easier to amend

0:14:43.680 --> 0:14:47.240
<v Speaker 1>the US Constitution. That brings up an obvious question, how

0:14:47.240 --> 0:14:49.280
<v Speaker 1>do you feel about the electoral college, which is a

0:14:49.360 --> 0:14:54.000
<v Speaker 1>similar idea. Well, I think there's been The best argument

0:14:54.040 --> 0:14:56.320
<v Speaker 1>I've heard is proposal that I've heard for changing the

0:14:56.360 --> 0:14:59.520
<v Speaker 1>electoral collegists to eliminate the people and just change it

0:14:59.560 --> 0:15:03.320
<v Speaker 1>to a point system so that you automatically get points

0:15:03.920 --> 0:15:06.680
<v Speaker 1>based on what states you win, and those are calculated

0:15:06.800 --> 0:15:09.240
<v Speaker 1>like an automatic electoral college, and that gets rid of

0:15:09.240 --> 0:15:12.800
<v Speaker 1>the problem of faithless electors. Electric we're almost out of time.

0:15:12.840 --> 0:15:14.720
<v Speaker 1>Give me a letter grade for the founding fathers on

0:15:14.760 --> 0:15:17.880
<v Speaker 1>the Constitution as they wrote it. What do you give them? Oh? Oh,

0:15:17.960 --> 0:15:20.480
<v Speaker 1>a solid a, not an a plus, but a solid

0:15:20.480 --> 0:15:23.840
<v Speaker 1>ay and like an old timey a, not an inflated

0:15:23.880 --> 0:15:26.640
<v Speaker 1>modern yeah. Oh yeah no not not a feel good

0:15:26.720 --> 0:15:30.640
<v Speaker 1>kind of e for effort kind of a Tim Sander.

0:15:31.560 --> 0:15:33.560
<v Speaker 1>Someone don't even get that someone went home without he

0:15:33.600 --> 0:15:36.760
<v Speaker 1>actually doing their work. Tim Sander for Vice President for

0:15:36.880 --> 0:15:39.920
<v Speaker 1>Litigation of the Goldwater Institute. Really interesting stuff, Tim, thanks

0:15:39.960 --> 0:15:41.640
<v Speaker 1>for the time as always. Yeah, that was great. Thank

0:15:41.680 --> 0:15:42.120
<v Speaker 1>you guys,