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

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Episode Transcript

Speaker 1 (00:00):
We are the world's oldest democracy. Did you know that
the United States of America as young as we are,
we're the world's oldest democracy. And a lot of us
give credit to our founding fathers and their genius with
the Constitution. And there seems to be some belief in
certain circles that it was like handed down by God
in uh, infallible, like they talked about with the pope um.

(00:24):
But could you do a little tweaking around the edges
of the Constitution? I find that a fascinating conversation that
I know our friend Tim Sanderford has engaged in many
times over the years. Well, certainly mechanism exists within the
Constitution to amend itself, so obviously we agree sometimes it
ought to be demand amended. Uh. Tim Santa for Vice
President for Litigation at the Goldwater Institute, just took part
in a really interesting sounding exercise with some other thinkers

(00:47):
that he's going to tell us about wild job out
a little bit. Tim, how are you, sir? I'm great,
Thanks for having me back. Quick easy question. Is the
Constitution perfect as is? No? And it wasn't perfect when
it was first produced, obviously, because we've had all those amendments. Yeah,
so what was this? What was this conference? He took

(01:08):
part in It sounds fascinating. It was, And I was
asked to participate in a project with the National Constitution
Center in Philadelphia with a group of other law professors
and lawyers too. Well. It was a two stage project.
The first thing we did was we divided up into
teams and proposed brand new constitutions. We wrote our own
versions of what we would like to see as constitutions.
I'll bet your head, I'll bet yours had more Star

(01:30):
Trek references than most. I wish I had thought of that. No,
it it was. There was a team Conservative, Team Progressive,
and Team Libertarian, and we I was on the Libertarian team,
and we proposed a constitution that was a couple of
years ago. This time around, we we all of us,
got together and we hammered out proposed amendments to the
existing constitution that we could all more or less agree on,

(01:52):
all three of these teams, and so we g five proposals.
Well so, no, so all three teams agreed on these
five posals, more or less. There were there were some descents.
In fact, I disagreed with one of the amendments when
we were finally finished. But we did a pretty good job.
I thought of coming up with some you know, they're
not they're not huge things, but they're simply they're important things.

(02:14):
Well let's here, Well, people, we get there if you
don't mind terribly. So, like, how many did each team
produce that ended up getting rejected? Well, there was one
lengthy effort to change how the Senate operates, change the
apportionment of the Senate and everything, and libertarians and conservatives
were opposed to that, and so that got thrown out.

(02:34):
And you know, try and redistricting and things like that,
and we were opposed to that, and an effort to
create a bipartisan commission. And I personally don't think the
Constitution should make any reference to to political parties at all.
I think a dangerous step to take. So we we
rejected that, but we agreed on eliminating the natural born
citizenship requirement for the presidency. For example, we you know,

(02:56):
it's silly that that you have to be born within
the unit United States when you think that a lot
of our best citizens have been immigrants to this country.
So instead of saying a person has to be thirty
five years old and born here. Why not make it
that you have to be a citizen for a certain
amount of time. I I suggested thirty five years. We
narrowed it down to fifteen years. Be a citizen of

(03:18):
the United States and live in the United States for
fourteen or fifteen years, and you can be president of
the United States. But what was the original of the
founding fathers with that anyway, Well, they were concerned about
people coming to the United States from foreign countries and
getting getting a large following and then taking over the
machinery of government, which was not at all an unreasonable worry.

(03:39):
In the early United States, there were some very weird
efforts to like, you know, the Burger Conspiracy, to separate
the Western States and declare their independence from the Eastern States,
and all these sorts of things that went on in
early America. And so it was legitimate for them to
be worried about that at the early stages of our democracy.
But we're so stable now that that see is less

(04:00):
likely concerned and just making sure somebody, you know it
has been a citizen for a long time should being
good enough. Well, welcome Manchurian candidate. Then they all hailed
President Schwarzenegger. If that's what you want, go ahead. Another
one is is to change how the term in post
term limits on justices of the Supreme Court, instead of
it being you serve for life. Basically, I mean the

(04:23):
current constitution says good behavior, which means the only only
way you can get rid of a Supreme Court justice
is impeachment or if the person dies or resigned. And
instead we suggested, how about making it that they serve
staggered eighteen year terms. A certain number of justices is
leaving the court and being replaced, not in not not
in sync with a new president, because you don't want

(04:44):
to make it so that your entire legal system changes
every time somebody can collected the office. That would be
a disaster, but instead staggered. But make it long and
stable so that you have a turnover in office that
seems legitimate. Hey, just out of curiosity, I have friends
who range from geniuses to half wits um and I
which one? Which one am? I? Joe, what's no lo um?

(05:08):
I I don't recall running into anybody who was staunchly
opposed to that proposal. As that sort of thing gets
kicked around, Tim, do you know a lot of thinkers
who think, oh, no, no, we've gotta stick with the
lifetime appointment. I don't think there's anybody who's who's of
that view, But I do think people are worried that
fiddling with how the Supreme Court serves opens the door

(05:29):
to things like court packing and and and coming up
with a system that would make it overly political, so
that you know, Republicans get elected and and completely overturned
the constitution, or Democrats get completely overturned the Constitution, which
has been tried in the past, and so we want
to come up with a system that avoid those risks.
But no, I don't think anybody in principle thinks that
it has to be you know, lifetime appointments. But we

(05:51):
do want judges to be insulated from the political process.
That's very important to be able so that they can
impose legal restriction on politics. What the Constitution does is
it imposes restrictions on democracy by making democracy abide by
the law. That's a very unusual thing and that's very

(06:12):
important to preserve. So that's that's our main concern. Well,
so I think what most people hate is just the
randomness of it. The idea that three people kick it,
and Trump gets to a point them and if they don't, nobody,
he gets a point nobody. You know, seems weird, but
aren't you gonna end up with even if you stagger it?
Won't you basically have Supreme Court justices on the ballot.

(06:32):
Then when you go to vote for president, the candidate says,
here are the two people I'm going to appoint, and
you know in the yeah, I think so. But I
think that's already the system. I mean when one of
the main reasons why people voted for Donald Trump is
because of the Supreme Court, and they knew that justices
were getting old and we're likely to die in office,
and they wanted a Republican in there who is going

(06:53):
to appoint justices that they agree with. So that's already
the system. And if I think of making it more
overt and acknowledging that instead of pretending otherwise, is probably
a good step. Another here's the one that I disagreed
with everybody else. I thought this was a good idea.
We changed the impeachment process to try and clarify what
the standards are and to say that a president can

(07:14):
be impeached for abusing his power as well as for illegality,
which I think is correct. But I also thought that
the president should be impeachable for either insanity or mental incompetence.
And the other parties were people involved in the project.
We're concerned about that because they were afraid that Congress
might use that power to remove presidents based on pure

(07:36):
political disagreement. I'm not worried about that. I think that
the president should be removable based on political disagreement. I
don't see anything wrong with that. The Congress is democratically elected,
so I don't think that's an undemocratic thing. But everybody
was against that proposed. I remember when we've talked about
this back during the impeachments. Your feeling is we should
have had more impeachments over the years, right, yeah, oh,

(07:57):
far more impeachments than we've had. We've we've we've impeached
if you add presidents and federal judges. We hadn't teached
fewer than a hundred people in American history. Is it
really the case that there have been fewer than a
hundred public officials who have abused their power or been
so incompetent that they deserve to be removed? I don't
think so. I think a lot more deserved to be

(08:17):
removed and just weren't. So Yeah, just to clarify, you
do not have a problem with a president who's so
unpopular with Congress they say, look, this guy's a piece
of crap. Let's call him crazy and just vote amount.
Totally think that's that's its perfectly legitimate to do. But
so don't you end up with So if you had
a giant red wave. Let's let's pick normal times, not

(08:39):
the times we live in. But if we lived in
normal times and you had a giant red wave right
now like Obama had that, I mean that the reverse.
But if you had a giant red wave right now, Um,
so they just get the boot out Biden because I
got the numbers. I don't see why not if the
if the voters are that much against the president's party,
then why not remove them? They're going if Congress can

(09:01):
find other ways to stymy the president's efforts, if they're
that opposed to him, anyway, they can, you know, eliminate
his powers, they could deprive them of funding, they can
do all these other things. Why not allow them to
impeach him and replace him with somebody that everybody else
can get along with. I think that would be perfectly
if Donald Trump had been impeached and removed from office,
he would have been replaced by another Republican. It's not
like it would have been all of a sudden the

(09:21):
Democrats on the White House, Mike pens would have become president,
so it wouldn't have So I don't I don't think
that's really a major concern. And I think the real
the opposition is that they don't want the president to
be just a figurehead of Congress. But I think we're
at more risk of a of a of a dangerously
independent president, and and a democratic system should lean in
favor of Congress, which is more democratic. We'll hang on

(09:46):
a second before we forgette. I was going to say,
in the wake of every single chief executive grabbing more
and more power and making more and more extreme executive
actions over the last you know, thirty years, I get
the appeal of that. Um, do we have two left him?
I think we got three left of them are kind
of boring, So I want to talk about Tim participated

(10:06):
in a radical back in Owl recently, in which they
shredded the constitution, set fire to the shreds and proposed
changes to the Sacred Document. For instance, Tim believes the
government should be able to force you to quarter troops.
I gotta stay somewhere right. You know. This all brings
to mind the episode The Omega Glory and which Captain

(10:27):
Kirk quotes from the Constitution's preamble and a dramatic climactic moment,
an episode that makes no sense until you realize it
ought to have been the Declaration of Independence and the
whole episode would have been great anyway. You participated in
an exercise in which a bunch of smart people got
together and said, if we could change the conversation constitution easily,
what would we change? And we've gone through a couple

(10:48):
of them. If you didn't hear those grabbed the podcast
look for Armstrong and getting on demand, what other changes
did you want to make? Well, Joe was right. There
was only two, not three left, and the other two
are to allow Congress what we call a legislative veto,
which which means allow Congress to block the president from
taking actions that are you know, not necessarily law kind

(11:12):
of actions. So, for example, um the president, the president
is in charge of all the regulatory agencies, everything from
the E p A to the you know T s A,
and those agencies often make regulations or rules that aren't
technically law, but are you know, binding on people. And
this is a big problem, of course, because these agencies
are really largely on democratic bureaucrats is coming up with

(11:34):
rules to impose on the rest of us. So we
wanted to allow Congress broader authority to block that from
happening when they think that that ought not to be
the case. So we gave Congress the power to block
executive actions. Now, the term executive actions would also include
things like deploying troops if the president decides to send
the military to some foreign country without a declaration of war.

(11:57):
Congress had come in and take and veto that and
the term we use as veto. So I wasn't really
turned on by this amendment myself. I mean, the other
members of the team were really into this personally. I
don't think this changes a lot because Congress can already
do that. Frankly, Congress could already pass a law to
block all of these things from happening, and it doesn't

(12:17):
do that because Congress honestly loves to wash its hands
of responsibility They love it when the agencies do things
because then they can claim, oh, it wasn't me, I
didn't vote for the thing, you know, and pretend that
they're innocent. So I don't think that that accomplishes a lot,
but it also doesn't hurt. So I voted in favor
of that. Was it just a simple majority or a supermajority?

(12:38):
The way that we oh our proposal is to allow
a simple majority of the of both houses of Congress
to veto any executive action. I'm kind of surprised Team
Liberal voted for that. Yeah, me too, but there I
think they were concerned about things like the you know,
the presidents sending troops overseas and things like that too.
And then our final amendment was to make it easier

(12:59):
to amend a constitution. It's very hard to amend you
as constitution. And there's there's this. If you're a libertarian
like me, you think probably right away you're like, well,
I wanted to be hard to change the constitution. Well,
that's not necessarily the case. You might want to make
it easier for this reason. If you don't amend the constitution,
judges will find ways of perverting the existing constitution. To

(13:22):
allow something to happen that they shouldn't allow to happen,
and then that sets a precedent for the future. So,
for example, it would have been better if the Constitution
had been amended to to make things like social Security
or the regulatory welfare state agencies. To put those into
the Constitution would have been a better thing then what

(13:42):
happened in the nineteen thirties, which is that the Supreme
Court changed how it interpreted the Constitution to allow these
things to happen. By changing the interpretation of the existing terms,
you open the door to all sorts of craziness to
come in the in the decades to follow. It's better
to amend that It's better to have bad amendments to
the Institution then to allow the courts to pervert the

(14:03):
existing language to allow bad things to happen. So we
decided to make it easier to amend the Constitution. And
one of the ways that we do that is by
saying that if the majority of the entire country is
in favor of the amendment, then that's uh. Then that's
good enough, even if a number of states don't vote
for it. The way that the current amendment is done
is calculated by states, which means, of course that that

(14:24):
states with very few people, like Wyoming, they get the
same kind of vote as a state like California with
a huge number of people. We think that there should
be a way that the total population of the United
States counts instead of doing it on a state by
state basis. So we we moderated the language a little
bit to kind of make it slightly easier to amend
the US Constitution. That brings up an obvious question, how

(14:47):
do you feel about the electoral college, which is a
similar idea. Well, I think there's been The best argument
I've heard is proposal that I've heard for changing the
electoral collegists to eliminate the people and just change it
to a point system so that you automatically get points
based on what states you win, and those are calculated
like an automatic electoral college, and that gets rid of

(15:09):
the problem of faithless electors. Electric we're almost out of time.
Give me a letter grade for the founding fathers on
the Constitution as they wrote it. What do you give them? Oh? Oh,
a solid a, not an a plus, but a solid
ay and like an old timey a, not an inflated
modern yeah. Oh yeah no not not a feel good
kind of e for effort kind of a Tim Sander.

(15:31):
Someone don't even get that someone went home without he
actually doing their work. Tim Sander for Vice President for
Litigation of the Goldwater Institute. Really interesting stuff, Tim, thanks
for the time as always. Yeah, that was great. Thank
you guys,