#1591 The Election of 2024 and the Constitution
2024-03-18 00:55:58
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Hello, everyone, and welcome to this podcast. introduction to this week's program. Dr. Lindsay Trevinsky, my dear friend and a regular guest, a huge crowd favorite. We talk about the Constitution.
This was her suggestion, but it's one of my favorite subjects. You know, what do we need to think about with respect to the Constitution? And our focus was mostly on what's going to happen in 2024.. So concerned, for example, that the 25th Amendment may be needed before whoever's the next president finishes that term. They're both octogenarians, or nearly so.
We talk about the Electoral College and its increasing strain, because the difference between the Electoral College results and the popular vote is becoming a more pronounced problem. We talk about the possibility of eliminating the Electoral College, or maybe just reforming it. She thinks it can be reformed. I think it should be abolished, even though in doing so, I'm not showing deep North Dakota patriotism, since we here in North Dakota get two senators with only 780,000 people, whereas California gets two senators with about 50 million people. Do the math.
In other words, a senator from North Dakota is about 45 times more powerful than a senator from California. And that doesn't seem right. We know why the founding fathers did it, but that was a long, long, long time ago. That one's deeply embedded right in the text of the Constitution of the United States. We have a kind of philosophical difference.
It's maybe an ideological one, but I think I'm actually more of a centrist than Lindsay. I think Lindsay is a liberal and a progressive, and those are good things. But I'm a little more wanting to stay at the center on all of this. She is a Hamiltonian, clearly, and nothing wrong with that. Well, of course, everything is wrong with that.
But she's a Hamiltonian, and she believes we can just make these reforms. We should pay respect to the founding fathers, but we shouldn't be stuck in the world that they created. I'm more concerned about procedure, that there is an amendment process, that these things need to be done right, and that it would be a mistake to start writing roughshod over the Constitution, although, my goodness, we have in so many ways. We both agree that a lot of these reforms will burble up from the states, that we shouldn't look for a top-down set of solutions. We should now really be starting to look at a kind of laboratory of democracy, set of reforms that will burble up from Colorado, or California, or Oregon, or Nevada, and that these reforms will appear to be rational, and other states will then listen and follow them.
We spent a fair amount of time on the United States Senate, and I'll tell you why. Not only is there the embedded equal representation in the Senate, and the founding fathers were pretty adamant about that, so we'll accept it. You couldn't fix that without a constitutional amendment, and maybe not even then. But the idea of cloture, that it takes 60 votes to get something out of the Senate, is anti-majoritarian, it's anti-democratic, it's not in the Constitution, it was not intended. The founding fathers already created a conservative filter by creating the Senate.
The Senate even more small-c conservative by having to have 60 votes to release and pass legislation, is insanity, and it's a direct violation of the very spirit of majoritarian democracy, which is the heart of the United States. So anyway, this is fascinating. I hope you enjoy it. You can help us. You can support this program.
Send in your thoughts. Write to us. Tell everyone you know. Share it with people. Contribute financially to the support of the program, if you can.
We, of course, would be delighted and thrilled by that. Suggest topics for programs. But there's a way on the site, ltamerica.org, where all the programs are now archived, for you to send in your questions and comments and so on, and we would benefit from that because we want to be really completely responsive to our listeners around the country and around the world, and we want to keep growing and to make this program a really vital part of civil discourse in the United States. You know, grammar. Lindsay and I occasionally disagree, but we're mostly having fun with it, of course, and we don't disagree on the main things.
But she's a little bolder about all these reforms than I am. I'm sort of stuck with Mr. Jefferson's view that these are procedures and the founding fathers knew what they were doing, and if we don't agree any longer, there are two ways to go about this. One is, we can amend the Constitution, and there is a procedure to do that, although difficult. Or the other is, we can call for a national constitutional convention, which is what I think we should do.
I'm not afraid of that, not even for a second. But, you know, I'm almost alone in that view. So let's go to the program. I always enjoy my conversations with Lindsay, and her stature is rising. Her influence is rising.
She's bringing a lot of joy to Listening to America, and I'm mighty glad to have her as a friend. So let's go to the program.
Hello, everyone, and welcome to this special edition of Listening to America. My friend, Dr. Lindsay Chervinsky, is across the country. We're looking at each other on Zoom, Riverside Technology, and our topic today is 10 things about constitutional issues that may be invoked or a part of the 2024 election. Welcome, Lindsay.
Thank you for having me. I'm looking forward to this conversation, although I'm hoping we don't get, well, I think it's likely we might get a little dark.
It might get a little dark, but let me start by just telling you in a nutshell how I see it. Jefferson believed, and I think Hamilton would agree, that the Constitution that was written in 1787 was not meant to be a permanent, sacred constitution for the United States. They thought it might last for a while. Jefferson wanted to tear it up from time to time. Hamilton knew that if you're going to keep it, you've got to make it a very flexible instrument.
You don't want to lock yourself into some sort of 18th century set of codes when the world is dynamic, and particularly American society is dynamic. And so here we are, Lindsay, 230, some years later, kind of straightjacketed and perplexed by a constitution that wasn't written for the internet, for cybersecurity, for cruise missiles, for the 21st century.
Yeah. And even voices who were much less enthusiastic about regular revolutions, George Washington wrote when he left the Constitutional Convention that it was the best that could be had, but it was open to future amendment, and knew that there were problems and hoped future generations would really try and come up with solutions that either they couldn't foresee yet or couldn't envision, but also that there would be problems down the road that they would have not been able to predict. And so, of course, there would have to be flexibility. I think the thing, though, is, is we're not actually really straightjacketed by the Constitution. We're straightjacketed by our treatment of the Constitution and our interpretation of the Constitution.
Because, as you said, it is very vague. sometimes. It's quite short, meaning there's a lot that's left out of it. There are these intentional loopholes. And, as we've discussed in the past, previous generations have amended the Constitution when a need clearly arose.
And it's our own fault for, A, not amending it, whether that's for lack of will or because we're mirrored in this partisan morass. Or we have now, there's a whole section of the American population that treats the Constitution as the sacred relic, as though it was handed down from high atop the thing. And that's not how they anticipated we would see it. And I think we are worse off because of it.
I agree with you. I think Jefferson was right, by the way. I think that the minute you ask for a lot of flexibility or to update with judicial interpretation, you are in a dangerous zone. And, as you know, the amendment process has been imperfect because there have been 27 amendments, 10 right off the top. I consider those almost an addendum, although an essential one, to the Constitution, and only 17 cents.
And the last one was in 1992.
. It was about congressional salaries. We're clearly not using the amendment process. You could say the trigger is too high,
but the fact is, we're not using it. Yeah, I think a lot of that is just because that, for whether it's ideological or political reasons, a portion of the population has decided that the Constitution is to be treated as perfect or holy wisdom, and so therefore cannot be touched,
which is, I think, counterproductive. So, Dr. Chavinsky, Lindsay, let's start with the elections. Lots to talk about there. So, of course, we love our states' rights.
The states were empowered to determine for themselves how they wanted to create electors and vote for the national offices. And attempts, after the debacle of 2021, of January 6th, to propose a national regulation, sort of a normalization and a set of conventions that we can all agree on across the entire country, got nowhere. The states really cling very tenaciously to their right to determine how the election will proceed within their state. We should mention that they did pass.
one bill on how the Electoral College works to sort of close the loophole that was open last time, in that the vice president- The certification loophole. Yeah, really just a figurehead, has no role in certifying the vote. So that avenue is closed off. Well, we'll see, right? We'll see.
Well, the thing about constitutional crises, gosh, I can't remember who I heard say this. Oh, I wish I remembered, so I could credit them, but that we are often responding to the last crisis or the last constitutional challenge that we interacted with or we came across. And in reality, we have to be really having a creative mind about what is coming down the road, because it's very rarely the same thing twice. So there are a couple of things about the way that the state certifies that I think could potentially come up. So the first, as you said, each state has the right to determine how people vote.
And that is of course changed over time. And we have accepted some uniformity over time, because it used to be that elections were held over a span of almost two months because of the difficulties in communication and time and things like that. And now we all have one day. So we've agreed on that. But states can adjust over time.
who gets to vote, how they get to vote. This is why we have things like mail-in ballots and absentee voting and early voting. Depending on the year, each legislation changes things. Sometimes they're thinking about different measures ahead of time. One of the big questions has been, for example, in Pennsylvania.
Pennsylvania is always a really important state. Pennsylvania always counts its mail-in votes afterwards. To me, that makes no sense. You know that these votes are going to be coming in. Why don't you start voting them or start counting them ahead of time?
And you know that makes people uncomfortable. that there are going to be sort of different swaths of votes. It just, it doesn't make a lot of sense to me. I think that that could be the first issue in regards to how the states manage their own elections. The second part of that piece I think is important is there's this concept that the state legislatures have the ability to sort of overturn the results.
There was a case that had come before the Supreme Court in, I believe, the last term. And they had said, no, that doesn't make sense. The court has the ability to adjudicate some of the powers that a state has in terms of the certification of the state vote. But they left the door open to a lot of wiggle room there. And so I don't think we have seen the last of what is the relationship at the state level between the state's legislature and the state's courts in determining final word and adjudicating any?
challenges. If we were rational people, wouldn't we have a Uniform Voting Procedures Act about mail-in, about early and late, about in-person, about people overseas? I mean, wouldn't we have an absolutely standard, uniform system for the entire country and its dominions, so that the issue that came up after 2020 that, oh, the irregularities, there must be room here for corruption, that would largely go away if there were a Uniform Voting Act?
Yeah. And I think this is, again, where the originalism concept is really important, because the Constitution said that the states get to decide for political reasons. And it wasn't like some great principle of states' rights. It was for political reasons, because each state would select how to pick its electors depending on what outcome they wanted. And it's been used for very nefarious purposes in terms of Jim Crow laws and depriving citizens of civil rights, especially in the South.
And I understand the concept of federalism. I believe that it works in some ways. But I think that on this particular instance, it would give everyone a lot more faith in the institutions and the outcomes if we had uniformity across the board.
Don't we need a National Election Day holiday?
Well, this is another subject that's on my list. So I am very glad you brought that up. People have a lot of misconceptions about voting. And one of the big things in the Constitution that people have misconceptions about is you do not have a constitutional right to vote. It does not exist in the Constitution.
States, some of the state constitutions have provided a right to vote, and the Constitution prohibits depriving the right to vote based on certain factors. But of course we should have a constitutional right to vote. And of course it should be a national holiday. It's utterly absurd. Just the fact that we don't is mind-boggling.
Several other countries, including, of course, Australia, require people to vote. There's a penalty for not voting. In other places, there's an incentive, a tax incentive to vote. Should we.
be doing this? I understand the pros and cons. There are pros and cons. There are some very compelling arguments about why it makes good sense. And when you make it very possible for someone to do so, and the penalties aren't really all that extreme, but they're more of an encouragement to nudge than really quite punitive.
I think that there is something about forced voting, compulsory voting, that Americans will not accept. We just really don't like being told what to do. And so I think that there's something that... I think it would be a hard sell. I think that there are a lot of other measures that might be an easier sell that don't feel like a conflict.
with our sort of quote-unquote basic values. Many states have mail-in voting, and it has worked with really great success. Don't you think it's time for us just to permit that through the?
entire system? I do. I voted mail-in voting for many of my first voting experiences. California makes it pretty easy to do mail-in voting. There are a lot of ways that you can ensure that it's safe.
So, for example, if you change addresses and you request a new one, or if there's confusion, often the ballot itself will have a different code. And so the state knows that if it gets the wrong one back, not to count it. And so I think that there are a lot of ways you can make it really safe. You can ensure that there is verification. I am all for safe voting.
I am all for ensuring that we are making sure that people are voting properly. But mail-in voting did not become a political thing until 2020.. And in fact, prior to 2020, it was more Republicans.
used mail-in voting than Democrats. The paradox of that is really weird, but be that as it may, what about voting on my cell phone? Do you think that's a good idea? So I don't think the technology is.
there yet, but there are some innovations that they're trying to ensure that that would be an option. And they're testing it out. I think Utah has a test program and they are. it's using blockchain technology, which is a new form of technology, which allows for there to be a unique ID that is verifiable across the network and cannot be manipulated by other actors. And they're testing it out, I think, with a number of military voters who are opting into this program.
And right now it's not scalable, but there's no reason. if they continue to improve on the technology and you could make it scalable. I don't see any reason that there should be a problem with that. We bank on our phones. And so as long as we're able to have that verification, I think.
that that's fine. Why not also have a mandatory audit in every state by an independent auditing?
group? I don't know. That's a very good question. You know, I think that there are a lot of built-in auditory mechanisms in that most votes are counted and recounted. And there are certain measures that do automatic recounts if the election is close.
But again, that's an example where, if we had a national legislation that said, this is the auditing process, that might be really.
helpful. We need to take a break. I'm talking to my friend, Dr. Lindsay Trevinsky, about elections and the Constitution. We'll be back in just a moment.
Welcome back to Listening to America. We're talking about 10 things with respect to the election of 2024 and the Constitution of the United States. Lindsay, so you and I agree that a National Protocols Act to regularize the system would make good sense and that would really eliminate some of the doubts and conspiracy theories, although not all of them. But the founding fathers were pretty clear that Georgia got to do it its way and New York got to do it its way and Ohio its. Yes, unfortunately.
And so we do what? We. let the founders tell us how to organize the 21st century? Or do we say, we're going to just, we're going to ignore that. We get the spirit of it, but we're going to ignore.
that because we need this reform. Well, I think that it's possible. I don't know. I think that it's possible that we could probably find some form of legislation that doesn't interfere with that spirit. I mean, we have a lot of national legislation for a lot of things, and we found a way around the federalism concept in a lot of ways.
But it would be tricky. And that's, I think,
one of the reasons it hasn't been done. All right. So last question on this subject. Do you believe, be careful here, that certain states have passed voter security laws that are,
in fact, voter suppression laws? Yes, but I want to be very clear by what I mean by yes. There are often voter security laws that are well-intentioned, but have unexpected consequences that do end up sidelining certain portions of the population. And then there are laws that are intended to sideline those populations. So they're put forth with that idea in mind, if it's not explicitly said.
I think the problem with a lot of these laws is we had, so the Voting Rights Act was, there were several voting rights acts, but they were initially passed in the 1960s. They were re-upped and passed again by Congress, again and again and again. The most recent one was, I believe, when George W. Bush was president. And it was passed, I think, 99 to zero, if that's right, if I'm remembering, my vote counts correctly.
Either way, you understand the general concept. in terms of the percentages. I think it was unanimously passed, if I'm right. And what that basically said was that if a state had a history of sidelining certain voters, of excluding them from voting, if they wanted to change their voting policy, they had to get preclearance from the Department of Justice Civil Rights Division. It didn't mean that they couldn't pass laws.
It didn't mean that they weren't still in control of their elections. But in this particular small area, they had to get preclearance. And it worked. It worked really, really well. And that was struck down by the Roberts Court.
And the Voting Rights Act has not been re-upped. There has been no additional passage of that portion of that legislation. And so states are allowed to pass laws that might have exclusionary practices, even if they're not exclusionary in intention, or even if they are exclusionary in intention, as long as they're subtle or sneaky enough about it, they can usually get it passed the Supreme Court.
I was really sad to see the Supreme Court make that decision, as if all the issues over civil rights and minority voting were over, when we know that's simply not the case, but that's the place we are with the courts. So, Lindsay, let me change the subject to the even more vexed question of the Electoral College. What did the Founding Fathers want, the Electoral?
College to be? The Electoral College was, at the time, actually a quite innovative creation to allow citizens, some say, in the voting for president, but have it not be a direct vote, while also trying to balance the competing demands of big states and small states. So it does two things. It removes the election from a direct vote in that people, either citizens or state legislatures could select the electors that would then cast votes for a particular candidate. And also it grants representation in the Electoral College based on the number of people that a state has in Congress.
Wyoming has one representative and two senators. The mandatory one and the inevitable two. Mandatory one, inevitable two. So they have three votes in the Electoral College. And so the idea was to ensure that big states don't dominate the presidential election.
So it was quite innovative at the time. It served two purposes. The big.
states do dominate the system. California, with its gigantic number of electors, New York, Florida, Texas, Illinois, a handful of states do, Pennsylvania do most of the determining. A state like North Dakota with three, or a state like Wyoming with three, still counts, but those are teeny, tiny numbers of electors.
Yes. But I also think that, I mean, I think it's deeply problematic. And I think it's deeply problematic because what ends up happening is the elections come down to a handful of states, whether it's Arizona, Nevada, Michigan, Wisconsin, Pennsylvania, et cetera, et cetera. And in the last several rounds of elections, the popular vote winner has not been the Electoral College winner. And to our point about trust in institutions, that is a deeply pervasive outcome that makes a lot of Americans feel as though the system does not represent their interests.
So we know what the founding fathers intended. It's like playing Monopoly. Boardwalk is not park place. We get it. These are the rules.
And they were ratified and they haven't been changed by way of a constitutional amendment. We get all that. And I respect what the founding fathers did. And they knew that the popular vote might not always dovetail with the results of the Electoral College. In fact, they were hoping that it wouldn't sometimes.
So Mrs. Clinton won by more than 2.5 million votes in the popular vote in 2016.. Joe Biden won by about 7 million votes in the popular vote in 2020.. Does it bother you that the electoral count is at odds to the?
tune of millions of votes with the popular count? Yes. I think, as a true admirer and lover of the Constitution, that I should honor its foundational principles, which is to create a more perfect union. And the founders had no expectation that it would last forever and that the systems they put in place would be such a straitjacket for us. And so I think that the Electoral College suited the needs of 1787 and 1788 and 1789..
And it then started to prove to be deeply problematic almost immediately because, of course, at least for the first 60 years of the nation, the Electoral College swung most of the presidencies to pro-slavery candidates. If that's not an example of why it's problematic, I can't think of a better one. I am most committed to trying to ensure that the nation is constantly improving on itself. And I think that while we have a system that is so out of step with the popular will, that is not going to create a more perfect union now. I don't think that that means we necessarily have to abolish it, because I understand that a lot of people really feel quite strongly about it.
I think you and I, I think this actually was originally your idea and I stole it. I mean, these are obviously all dream plans because it's not going to happen. But if we adjusted the Senate such that it still wasn't strictly proportional or strictly proportional to representation, like the House, but it was on a sliding scale. So New York, California, Texas, Florida had five senators and Pennsylvania, Michigan, whatever, had four senators. And then it slided down.
That would adjust the numbers in the Electoral College. It would probably make the popular vote more aligned with the Electoral College results, but it would still not be a direct vote for the president. That would be at least my preference if we're going to suggest adjustments.
You did steal my idea. It's hardly my idea, of course, but five senators from California and Texas and Florida, four for New York, you know, working our way down. North Dakota gets the mandatory one. Wyoming gets the mandatory one. Vermont gets the mandatory one.
Many states get two, say Nebraska or Arkansas, maybe, and so on. And you could still keep it at a hundred. And there are recent proposals to raise the number of people in the Congress to over 700.. But you said something really depressing a minute ago. You said, you know, this change should happen, but she said, all dream plans, it's not going to happen.
Doesn't it depress you, Lindsay, that you live in a country where you have to say that? All dream plans, where it's not going to?
happen? It does. Maybe I don't live to see it, but it could happen. And so I think you're right that I'm being a little bit of a Debbie Downer, pessimistic about our system, but most change.
happens slowly. I agree, of course. I just feel that I want to live in a republic that's responsive to its actual needs and concerns. So we have paralysis in government. You know, the border is a huge mess, and each side takes a run at it.
But both sides seem to prevent the reforms because they can't come to terms with the fact that there are people here who are never going back. No matter what we say we want to do, we're never deporting 12 million people. And who wants to live in a country that would deport 12 million people? So we're paralyzed. And it makes me ache.
It makes me sad. It makes me bitter to think that we're in a country that has clear and present problems in front of it, that are solvable problems, and it can't solve them. And so we have this issue that the electoral college isn't what the founding fathers wanted it to be, not even slightly. And yet we are afraid to tinker with it, because we're so small c conservative about norms and the constitution, when it's absolutely essential that we make some of these reforms.
So there are a lot of different voting reform options out there. Ranked choice, voting, jungle, primaries, which are where you have both sides come together and sort of the top two win or move on to a, to a runoff, things like that. There are a lot of different options, you know, top five, ranking. I support a lot of them. I think a lot of them make a great deal of sense.
They generally encourage more moderate candidates. They generally discourage the type of virulent partisan rhetoric that we have seen in our system that most people find very distasteful. They encourage people to be bipartisan in their policymaking. They encourage cooperation between different candidates and different parties. And they tend to make candidates much more responsive to their constituents because they're not running on these crazy gerrymandered districts.
And if we were to work some on gerrymandering, I think those two things would make such a huge difference to at least our political discussion and what the realm of possibilities would be. And they are being achieved at the local level. And I think if we can push for those things, which I would encourage everyone to do, we can start to make a big change. So that's my, that is my note of optimism that I.
think is really important. So in this case, the laboratory of democracy is a good thing, because such things are tried in Alaska or Maine and elsewhere. And if they are seem to work and to create a better union, they may start to spread more widely around the country. Yes. And if we?
look at the example of Alaska. on one, in one election, they elected a fairly conservative governor across the state. They elected Lisa Murkowski, who is a more moderate Republican in the Senate, and they elected Mary Pozzola, who is a fairly moderate Democrat, for the House. So it demonstrates that people can really pick the candidate and the values the candidate stands for and how they comport themselves, as opposed to just picking the RRD next to their name.
Okay, but let me be the devil's advocate here for a moment. You're such a vile Hamiltonian. You respect the founding fathers, but you're quite happy to roll over them. Let's go back to the Electoral College here. Tell me if I'm wrong.
They wanted the Electoral College to be a sort of filtering hedge between the people and their choice. So if the people made a really bad choice, a demagogue, a ridiculous, corrupt, pathetic buffoon figure who was fully unfit for the presidency of the United States, the idea was the electors would step in and vote for somebody else instead, and that this was a really important prevention of a runaway populist.
candidate. Is that not true? That was what they intended. They also intended impeachment to be a very effective tool against such a figure, and I would argue that both of those measures failed to stop or prevent the demagogue that we have most recently seen. I would also say that the founders didn't want women to vote, and they were totally fine, counting five black Americans as three Americans.
So some of their ideas are just ridiculous, and I don't know why we have such a hard time saying they were brilliant men, they did extraordinary things, and some of their ideas do not belong in the 21st century.
Fair enough, but I'm going to be the devil's advocate. part two here. Constitutional conservatives are really uncomfortable with the kind of reforms you have in mind, which are clearly not, either by way of amendment or what the founders articulated.
Well, I would say that if they're truly small c conservative, then they would recognize that the Constitution actually says quite little and leaves most to the states and most to Congress and most of the people to determine and flesh out the fuzzy bits. And if that's actually how we're treating the Constitution, that it leaves most unsaid, then indeed that leaves a lot of for legislation and for state reform to work as it was intended.
I seldom hear the word fuzzy bits in constitutional conversation, but we'll take it. I'm going to make a glossary of Lindsay-isms. All right, so why not just have an amendment and get rid of the Electoral College altogether? We're an advanced democracy. Wyoming doesn't matter.
I'm a North Dakotan. North Dakota doesn't matter. It doesn't matter either with or without an Electoral College. Why don't we just move now to popular election?
of presidents? Well, the slightly snarky answer is that a lot of people would be very unhappy with that. And partly because a lot of people really like the Electoral College, or they feel very comfortable with it or they don't think it should be changed.
One reader wrote to me that it was perfect. And I disagree with that pretty vehemently, but that's fine. Everyone is entitled to their opinion. I think that the more thoughtful answer, if I'm not being snarky, is that there is a real danger that the founders were very concerned about of a majority trampling over minority rights. And in a country where we do have massive population centers in coastal areas and other big cities, and then far more dispersed populations in rural areas, there is a real concern that the majority, and this could be a 51% majority, could trample over the rights of the other 49%.
And so it is important to include protections for minority rights. And this should be not seen minority as in race, as we sometimes think about it in the 21st century, but any smaller portion that disagrees with whatever the bigger portion of population is selecting. And so that would be why, if you do want to keep their Electoral College, I think, and I think there are arguments, and this is one of them, that you want to protect those minority rights. There's a way to adjust the percentages and the representation, which we've discussed here, that would try and meet.
both of those goals. Fair enough. We're going to take a break here in a minute. Let me ask you an easy one. The pardon power.
So it's important to have pardon power. Mercy is a very important thing. And people are wrongly accused and jailed for too long. And I get it. I think that's one of the most beautiful things that the Founding Fathers stuck at the last minute into the Constitution of the United States.
And I think it has been, on the whole, used wonderfully through American history.
However, don't we need to clarify this? I don't think that a president should ever be able to.
pardon himself, period. Yes. And I would, I mean, so. I would amend that power to say that a president should not be able to pardon themselves or a family relation. I think that that should be a pretty fair and surely we can all agree to that.
I mean, I think that the Founders never intended for the pardon power to be used by the president for himself, because the whole point of the government is that no one person is above the law. That is what the king is. And the revolution was fought over that concept, the fact that everyone is responsible to the law. And so a self-pardon just is mutually exclusive with that concept. But it's, of course, untested.
And so it would be great if the language is a little bit more explicit on that regard. I also think that.
the pardon. power has been misused for cronyism by both parties. I think of several of Bill Clinton's pardons, for example, and that really bothers me. But I don't see a mechanism to prevent that unless you had an independent panel of seven people that were nonpartisan, that had to.
sign off on any pardon. Yeah, it's almost, I think, impossible to, it's almost impossible to prevent. I mean, you could have language that says something like a pardon may not be used in the further facilitation of a crime. So for obstruction of justice, for example, sometimes pardons have been used in that fashion. So you could, in theory, do that, but it is very hard, I think, to restrict.
Let's take a break. This is really fascinating. When we.
come back, I want to ask you about the United States Senate. This is a special edition of Listening to America with Dr. Lindsay Trevinsky, 10 things about the Constitution and the 2024 election. We'll be back in just a moment.
Welcome back to Listening to America, Dr. Lindsay Trevinsky, 10 things about the Constitution and the American election of 2024.. We talked a little bit about some sort of a national regulatory system to have uniform voting around the country, to prevent shenanigans and to prevent conspiracy theories. We both realize that's unlikely, given the 10th Amendment and the very strong feeling that the country has that each state should determine these things in its own way. We talked also about the Electoral College, which I think we should abolish, but you've made the.
we don't necessarily have to. There are some workarounds, and we can probably clarify that with some important reforms. I want to turn to the Senate for just a minute. As you know, this was part of the Great Compromise, as it's called. A number of the small states nearly bailed out several times, but over the issue of big state, small state, big population, small population, and Delaware and Rhode Island were very worried that they would be overwhelmed under the new Constitution by Virginia and Pennsylvania and New York and so on.
That doesn't really turn out to have been very true historically, but we get their point. Their victory was embedding deep into the Constitution that every state shall have two senators, every state equal number, and two. And they also said, as you know, and you can't just change this. This can only be changed if the states themselves agree to it. And so it's hard to imagine North Dakota, my own state, or Wyoming agreeing to slip down to a single senator so that California can have five.
So that's a tough one. It seems to me that one of the most undemocratic features of our Constitution is giving Wyoming two senators with a population of about 600,000 and California two senators with a population of about 50 million.
Yeah, it's crazy. And it is not in any way what the founders expected, because they did not expect us to have the population disparities that we do. Now, I should say, there are a lot of ways to make the Senate more effective than it currently is without a constitutional amendment. So the Senate could go back to what the Constitution actually says, which is that most legislation does not require a two-thirds vote to pass or a 60 vote to pass. We have allowed this absurd, like inverse filibuster effect to come into play, which has stymied most progress.
And it's awful. And so there are ways. So let's say you believe that the filibuster is really important. I totally understand that. There are ways that you could have a true filibuster, which would require the hold the floor or require the minority to continue to debate, as seen in Mr.
Smith Goes to Washington. There are ways you could adjust the filibuster. There are a number of mechanisms that would provide for that important protection without totally eliminating the absurdity that is the Senate. But to get to your point, yes, it's utterly ridiculous that a state like California has the same number of senators as a state like Wyoming or North Dakota. And that's in no way an insult to those states.
It's just, it's so unbelievably unfair. I can't really believe that we don't laugh.
at it all the time. I get it that this is so deeply embedded in the Constitution. And I agree with you, there are other remedies here. And I just want our listeners to be really clear on this. The idea that a measure in the Senate requires 60 votes to pass is nowhere in the Constitution of the United States.
The system was built for majoritarianism. In other words, 51 senators should be able to pass legislation. They can under certain reconciliation provisions, but that just creates more distrust, I think. What we need to do is get rid of cloture. We need to be able to say that if the Senate wants to pass an infrastructure bill, it should be able to do so with 51 out of 100 votes.
If the Senate wants to increase aid to education, it should be able to do so with 51 votes. This weird notion of filibuster and cloture, which is part of the Senate procedures, and therefore is a norm, but not a constitutional fiat, is appalling, because the American people are losing their democracy over this. Take just a couple of instances. The American people overwhelmingly want moderate, responsible gun regulation. It doesn't happen.
The American people overwhelmingly want health care to be available in a more rational and widespread way. It's held up by the United States Senate. in most cases. This was never intended. The Founding Fathers only wanted supermajorities for treaties with other countries or overriding a veto by the President of the United States.
Those are the two instances where the Founding Fathers required supermajorities in the United States Senate. At no point did they say, you know what, we should make every important bill pass by a 60% vote.
Absolutely correct, because that would have been a step closer to the system, how it worked under the Articles of Confederation, which they had experienced. how inefficient that process it is. Just to really hit home how illogical this process has become, these norms are relatively new in the last couple of decades. Now, a senator doesn't even have to invoke cloture in person. They can send an email, which is just mind-bogglingly frustrating.
At the very least, we should require them to show up in person if they are going to stymie everything.
I couldn't agree more. Ted Cruz did read Dr. Seuss books once during the Affordable Care Act debates, but it used to be that if you wanted to do a filibuster, you and your pals had to stand up there every day for weeks and read the Yellow Pages or read from Southern literature or talk about your family life or your heritage. At least that had some sort of exhaustion effect, and some people would finally give up at that point. But the idea that you can just invoke a filibuster by saying, hey, I'm filibustering this, that's appalling.
And the other thing that I really object to is that a single senator can put a hold on legislation, including, for example, promotions in the United States military. I don't see any rational reason that a single senator.
should be able to put a hold on the nation's business. I totally agree. And while we're talking about things that are very frustrating, there is another norm, which is called Blue Slip norm, which is that if there is a judge that is going to be nominated by the president in a particular state, then the senators in those states are generally given a heads up and the ability to sort of veto the selection, and it's this Blue Slip process. And it has become wildly abused, in particular, by the senators in Florida, which there are three openings in one federal district in Florida, and both of the senators will not permit a single nominee to be put forth by the president at the moment. So they're literally thwarting the Constitution with this ridiculous.
rule. All right, let me let me change to another really interesting subject. And this may really become important. The 25th Amendment to the Constitution, which was promulgated in the aftermath of John Kennedy's assassination in 1963.. It took a while to get through Congress, and it eventually was ratified in 1967..
And so it provides some more clarity about what happens. So that if the president is killed, and the vice president becomes president, now you need to have a new vice president. So it solved that problem. It also, looking back on Woodrow Wilson, who had a really disastrous stroke in his second term, looking back on FDR, who was clearly dying, the idea is that we may need to invoke the 25th Amendment, if the president has become incapacitated in some significant way. And I think, given the actuarial tables, no matter who wins the 2024 election, we may be about to face the most serious 25th Amendment crisis in our history.
Agreed. I should, we should also mention that.
there's another element of the 25th, which is really quite important. And that was largely fueled by a lot of Eisenhower's health issues. So Eisenhower had some heart attacks, had some strokes, had surgery, and there was not a clear mechanism for the president to hand over power temporarily, and then be sure that they would get it back. So there, it led to some confusion about who was actually calling the shots. And that's a really important thing, because we want the president to be responsible about the decision making process.
We don't want a president to feel like they can't undergo surgery, or they can't temporarily step away without having a mechanism to come back. That is a very important part of modern life, and is, I think, a good and very responsible thing to have happened. But you're right in terms of the more serious version of the 25th Amendment, and that it has never been invoked to permanently take a president out of power. I would love if both candidates were not in their 80s. I think that would be great for the.
I worry about both candidates being that old and going into office, given how difficult the job is. I just am very uncomfortable saying that he is mentally deteriorated without seeing evidence of that. That's not a compilation on TikTok.
Fair enough. But both of them are making a lot of serious verbal gaffes and mistakes, misnaming people, misnaming each other, talking about things that don't exist. They're not as crisp as you would want your major candidates to be. I don't know whether that's age or the fact that everything they ever say is recorded, and we all have verbal slips and so on. But I'm not comfortable in two ways here.
I'm not comfortable with the most dynamic country in the world being governed by octogenarians, period. I know, even in my old age, and I'm a very young man by those measures, I'm not as vigorous as I was when I was your age, and you're probably not as vigorous as you were 25 years ago. So I do think that there's an issue. I think we should have a mandatory retirement age for the presidency, and I think we should also have mental fitness tests. Do you?
disagree with any of that? The only part that I disagree with is my vigorousness. I actually think that I have more energy and more wicked than I've ever been. The minute I said that, I knew you were going to throw that right back. Let's be very clear here.
Let's be very clear. I'm 35.. So if we think about the founders and what a lot of their ages were, and the peak of that kind of thing, like that's sort of right in line. I don't think that when I'm 80, I will feel the way I currently.
feel now. Let me just quote Mr. Bob Dylan. I was so much older than I'm. younger than that.
now. I defy your youthful vanity, let's call it that. We'll leave that for the moment. Do you think that we'd be better off with an age limit on presidential candidacies?
I think in theory, it's a good concept. I think in practice, it's really tricky, because I do think that aging is a personal, is very personal, and it's how it works in people. And age cannot necessarily be a stand in for efficiency or efficacy. And I think that what was considered old in 1799, when George Washington died, is no longer considered old. So it's really hard to make a rule and have it stand up over time when it is such a personal thing.
I'm much more comfortable with term limits in general, because I think that that can be more applicable.
across the board. Agreed. You know, when Jefferson became the third president of the United States, he was 56 years old, 57 right there. And he thought he might be too old to be president of the United States. I think that's pretty interesting.
Yeah, well, you know, and I think,
you know, while we're talking about sort of octogenarians, you don't have to like her policies. But Nancy Pelosi is widely considered to be one of the most effective speakers of the House we've ever had. And she was in her 80s. I don't know why we can't just agree that, Nancy.
Pelosi was one of the most extraordinary speakers of the House ever, that she's an old woman now, but she's incredibly bright. And she managed to get things through Congress against almost impossible odds. And you see, when you flip the switch and look at how the Republicans have attempted to get things through Congress in their time, she just winds up looking like a political.
genius. I don't care how old she is. She was, regardless of her age, she still had the mental faculties to be able to count the votes, which she said is the most important skill a speaker.
can have is know how to count. So we've had four presidential impeachments, and we're maybe going to have a fifth. Not one of them has ever been successful. In other words, no president has ever been convicted and evicted by the United States Senate. The 25th Amendment has barely ever been invoked.
It's never been invoked in a really grave way. In other words, what if it's Woodrow Wilson? What if we knew in early in the second term that Ronald Reagan was in very serious mental decline? We have never that's, you know, there are certain things in America, aren't there that that exist, and we're kind of afraid to touch them. We're afraid to light that match or flip that switch.
And, you know, I'll be happier as a small-r Republican when the first presidential impeachment.
is successful. Yeah, I mean, I think to your point, you know, some of these mechanisms, people don't want to touch them because they fear that if it will become a slippery slope, or they fear that once the norm is broken, that we won't get it back. But by not using them, by not utilizing them, that is also in some ways, a slippery slope and breaking a norm, because it's rendering impotent a really important constitutional check on power. I want to circle back to the Reagan piece, because I know in the past, when we've talked about Reagan, we've actually, I've gotten some emails from listeners sort of wondering what we're talking about. Because a lot of the original bios of Reagan and a lot of the initial information that came out said that, you know, he didn't have Alzheimer's, he didn't have dementia, that came later.
I just was wondering if you could just talk a little bit about where, you know, we have gotten some of that information so that people know.
what we're talking about. I think that it's widely agreed upon, that he was beginning to show signs of significant mental decline in his second term, and that his own people talked briefly, carefully about the 25th Amendment, and did not go very far with it, but that everyone knew that there was a problem. And then people began, as they should, to rally around him and make sure that he had the right kind of advisors near him, that everything that he did was carefully monitored. I just want to say, I don't feel partisan in this. I think, when you talk about consequential presidencies, that Ronald Reagan had an extremely consequential presidency.
And I think that he he did the Jeffersonian thing, which I am so fond of, which he sang the song of America.
I agree. And I think perhaps his most important contribution was he restored faith and belief in the concept of America as a shining city on the hill, which is, you know, what you're talking about in terms of the song of America, but that had a real, tangible foreign policy implications, because this was the end of the Cold War. And a huge portion of the Cold War was ideological, but that ideological component fueled things like investment in national security and economic development. It requires faith that the democratic way of life is better than the communist way of life in order to invest in any of those things. And so, and there's no doubt that that contributed to the downfall of the Soviet Union.
So I think another constitutional element that's going to come up in this election is the First Amendment. There is a component of the First Amendment that prohibits a state religion. I think that there are a lot of measures that have been put forth by a minority of the Republican Party, including the current Speaker of the House, that favor religious measures in a way that I think I personally find to be inappropriate and I think is inconsistent with the First Amendment, which is not to say that I'm anti-religion or anti-Christianity, but that I believe it should be a more private exercise as opposed to one that is mandated by legislation. The second piece is the concept of civilian control of the military is embedded in the Constitution in a number of ways. Most importantly, the President is made the Commander-in-Chief of the military and Congress is given real oversight in the power to declare war.
And the civilian management of the military has also, the flip side of that coin is that military is not to be used in domestic law enforcement. And that is a principle that Americans have really, really held true for most of our history, and it's very important.
We'd better do a program on each of those. I feel very passionately about both of them, Lindsay. I've been deeply concerned since my childhood about the loss of congressional control over war. The founding fathers were really, really, really adamant about this, that war had to begin in the House of Representatives and that the President could, of course, defend the country against attack, but that the President was not to initiate war in the rest of the world. I think that that's one of the most important small-r Republican controls, and I just am appalled to see what's happened.
I do believe we live in a dangerous world, of course, and religion. I predict that in the next five years, the Supreme Court will abandon stare decisis and authorize prayer and school.
again. I mean, they already kind of treat stare decisis as a vibe as opposed to a principle that they should really adhere to. They certainly adhere to it when it suits them and abandon it.
when it doesn't. Buckle up, America. We're not out of the woods yet. The military may have saved us in 2021. It certainly was one of the factors, but we've got to leave it at that for now, Dr.
Lindsay Stravinsky. We so admire you and we'll see all of you next week for another important edition of Listening to America.
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