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. 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 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 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 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, 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. 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.
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, 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 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.
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 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 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 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? 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 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 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
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. 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 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 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 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, 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 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
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 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 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 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 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 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 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
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
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. 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 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? 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 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 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 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 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 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 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 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. 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,