Episode 295 - Rewriting the Constitution: Did the Founders Screw up the Senate
Max and Aaron talk about Max's newly-released research paper, Toward a New Great Compromise, which includes a refresh of the US Constitutional structure. Max shares what he learned about the founders of the country and why some of our institutions have been failing as of late.
Links
Researchgate - Toward a New Great Compromise: A Constitutional Plan to Promote Liberty, Renew Democracy, and Restore Federalism
Related Episodes
Episode 188 - September 11th Recall Part I - The Before Time
Episode 189 - September 11th Recall Part II - Memories, Aftermath, Rebuilding
Episode 283 - Max Changes the Constitution, Part I
Episode 284 - Max Changes the Constitution Part II
Episode 285 - Max Changes the Constitution Part III
Transcript
Max Sklar: You're listening to the Local Maximum episode 295.
Narration: Time to expand your perspective. Welcome to the Local Maximum. Now here's your host, Max Sklar.
Max: Welcome everyone, welcome! You have reached another Local Maximum.
So did the founding fathers of the United States screw up the Senate? That's what we're talking about today, with the release of my new research essay right here Toward a Great Compromise: A Constitutional Plan To Promote Liberty, Renew Democracy, and Restore Federalism. I guess that that bottom line is a little bit of a mouthful, but I wanted to get it all in there.
Aaron, welcome to the show.
Aaron: It's good to be here. I was gonna say you've set the bar real low for what you want to achieve with this.
Max: What do you mean real low?
Aaron: That was sarcasm. We're only going to renew democracy and restore federalism.
Max: Right? And rewrite the Constitution. Look, the Constitution is only like-. If you see the size of those little pocket constitutions, they're tiny, little books. So rewriting it is a lot easier than writing like a normal sized book, I figured, right?
Aaron: Well, there's less room to hide things in there for sure.
Max: Yeah, all right. So this is episode 295. It's 9/11. If you could believe it. And when this episode comes out, I suppose it's /910 over here for the next hour and a half. I don't know if there's any significance to doing this episode on 9/11, but here we are. All I could have to say about that is to go back to our 9/11 historical retro show. Remember that one?
Aaron: The two-parter.
Max: Yeah, I believe that was in 2021. Episodes, 188 and 189, gotta write that down for the show notes page.
All right. So we talked about this, and I kind of miss being on your porch, listening to all the crickets, talking about-. We really, for three episodes, hashed out these changes that I wanted to make to the Constitution. And that was really valuable on the program, being able to kind of just hash out all of these issues.
I don't know why I started writing this. I think I started writing this because actually, I read an article by Jeff Tucker on the 17th amendment, and how maybe that's a problem and we should get rid of it. But I'd seen that before and I started looking into what a lot of people said. So I started to do a little more research and I decided to go in a different direction.
And then also like politics is interesting. Game theory is interesting. I have a certain flavor of it that's more like social choice theory, and trying to figure out electoral systems, and trying to figure out the system, how all the moving pieces put together.
Aaron: And that’s certainly been a recurring topic on the show that we exactly visited multiple times.
Max: Exactly, exactly. So this is not meant to be some kind of a political. This is moving beyond political rhetoric here and trying to actually come up with a solution.
Now, some people say, “Well, what's the point of this because you can't actually implement it?” But like, I don't know. Look at what they're doing in Washington. What percentage of people in Washington actually get to implement their ideas, versus just talking about it? So, hey, this is a very cheap way to be like, let's actually do the work, let's do the research. And I looked at the Federalist Papers, I looked at James Madison's notes, I did a lot of research on history to support this. So now I've done a lot of the work where people who are looking at policies and creating new governments, even people creating new local governments or new corporations, or whatever, can come in and look at this research and hopefully benefit from it. And, of course, the Convention of States folks.
So all right, maybe I can review the main argument here. And then we could talk about some of the things that are new in this paper that I found since we did those episodes on the Constitution, which were, I believe, several months ago. That would have started with Episode 283, right?
Aaron: It certainly feels like it was a different era.
Max: It feels like it was a different era, but it really wasn't. It was this summer. And it's essentially still summer so I guess the beginning of the summer versus the end of the summer, but it feels like a long time ago, doesn't it?
Okay, so the basic idea is that the Founding Fathers actually screwed up the Senate. A lot of people, particularly conservatives perhaps, like to say, well, the original version of the Senate, is that the Senate was originally supposed to represent the states. And I did a little research we'll get to in a minute, where I find out that's not quite true.
Then we have the 17th Amendment come along 100 years later, more or less 100 years in 1912, 1913, I believe. And that said, the Senate is no longer going to be chosen by the state legislatures, they're just going to be elected by the people. Because the more democracy is better and more voting is more democratic. So there we go, that's gonna save our democracy. And it maybe feels good aesthetically, but it seems like it hasn't gotten what we wanted other than a top heavy federal government. And if that's what you want, that's fine. But the idea that it's made senators more accountable to the people, there's no data to support that, that has not happened.
Aaron: I think I may have raised this question when we were originally talking about it but I can't remember where we landed on it. Did it have that desired effect in the short term and we've just reached a kind of return to an equilibrium where they're no longer accountable? Or it didn't work in the beginning, and it's still not working now?
Max: Well I was basing this off of a report by the Brookings Institution, which is kind of like a left leaning think tank, and they did a study on this in 2013, on the 100th year of the ratification of 17th amendment and they found no difference in anytime. I wasn't able to do a deep deep dive into their methods and the data they collected, but I kind of trust that if there was something significant there, they would have reported it.
Aaron: Because I wonder if it's the type of thing where, inevitably, a system like this, a system of representing competing interests, will trend towards becoming corrupted or, maybe corrupted is too strong word, but being captured in one way or another by vested interests that are not the electorate at large. But then it takes maybe 50 years or 100 years for that to happen and so every 100 years, we need to do something to shake up the structure of our representative democracy.
Max: That's possibly true.
Aaron: It's very speculative to say that. I have nothing to back that up. But it's kind of an appealing idea, especially since we're talking about what's been about 100 years, a little more than that, and we're due?
Max: Well, this is kind of what I wrote. And so this is how I put it and it's sort of similar to what you said. I'm not sure. I mean, this is just kind of my mental model of it and we can talk about whether that's true or not.
The inevitable contradictions in any such structure, that's the Constitution, tend to become more pronounced over time. And at certain points, these contradictions must be resolved one way or another. So essentially whenever you write something like this, it's not a mathematical equation. It's human beings, it's human systems, they're imperfect, there's contradictions in it and then whatever contradictions or holes in it that can be exploited, those get expanded over time. And so things do tend to tend to wind down. I think that that's similar to what you're saying.
Aaron: The follow on thought that I had was if we were able to conclude that there is this kind of pattern of backsliding, that is required a realignment every century plus or so. Let's assume for a moment that we are given the carte blanche to implement changes now, would we structure it differently with that knowledge such that we won't need to revise it in 120 years. Or with the acknowledgement that the next fourth turning, you're probably going to have to revisit this and come up with another patch and that's a problem for a future generation.
Max: Well, I think that's the idea behind representative republic and mixed government to begin with. That's why the ancients like Plato and Aristotle saw. You have pure democracy, and then you have a pure tyranny, and they always turn into each other, and then you have this regime and that regime and it's hard to keep up. And so the idea of having the Republic is to kind of moderate that sort of switching back and forth between all of these revolutions by having essentially elections and permanent revolution. So I think yes. The idea is that you want to structure it so that it is resilient.
And honestly, I think the founders did a very good job of doing that. It's just, we could still find some problems in what they did. Obviously, as I pointed out in the beginning, the major problem that looks laughably obvious if it wasn't such a human tragedy is like, “Oh, we're gonna have slaves. And we're also going to proclaim a natural God-given individual rights society.” Those two don't seem to go too well together and so you ended up with, it led to the Civil War.
I think if they said, “We're going to do gradual emancipation, from the beginning” things would have worked out way better. For some reason, I guess that wasn't politically possible. I don't understand why they couldn't have done it in a way where it's like, okay, all of this will fully play out once we're all dead. But they just didn't want to do it.
Aaron: Yeah, it's certainly a hard sell, even if you set the price far enough. So a piece of that-
Max: They were able to do that with the slave trade, by the way. They successfully but they were not able to do that with slavery itself.
Aaron: Possibly only because there were sufficient loopholes or workarounds or concessions that were made? I mean, yes, the international slave trade was was no longer officially permitted but there were certainly people being smuggled in. And there was also the, at that point, domestic supply was sufficient that it was not necessarily the international trade required to sustain it. IT certainly would have been a harder sell to put a cap on that right at the beginning.
Max: Right. Right.
Aaron: I guess one of the pieces-. There's certainly an intention from the founders that there should be these mechanisms to make adjustments. So there was an expectation that there would need to be tweaks along the way.
I was curious when the most recent amendment was ratified and that's the 27th amendment that has to do with congressional salaries. That was back in 1992. Which was not that surprising that we've had one about that long ago. What was surprising when I went and looked at it is how long that amendment went between when it was initially proposed, and when it was ratified. Do you want to take a stab at when that was initially proposed?
Max: I think that was proposed in the Bill of Rights.
Aaron: It was in fact. It took 202 years and 223 days from its proposal to when it was ratified which was mind-boggling.
Max: Yeah, and that's why I kind of think of that one as sort of an amendment that doesn't really count. That was kind of like, oh, it's a good idea to say salary increases shouldn't take effect until the next Congress. It doesn't really affect how we govern that much, even though it's just like, oh, look, this was already proposed. It's already out there. So state legislatures were like, “Hey, we have some free cycles. Let's do this.”
Aaron: Not having that was a bad look. But yeah, agreed that it certainly didn't change things like the way that the 17th Amendment did.
Max: Right. So the last real one was 1971 which lowered the voting age to 18 in the wake of the Vietnam War. It's been quite a while, over 50 years. Yeah, and structurally, very little has structurally changed for a long time. I mean, almost none of them has changed.
Aaron: Interpretations of the structure have changed. Or at least the prominence of certain interpretations. So the growth of executive power or executive agencies that has certainly evolved dramatically in the last century, but none of that has required constitutional amendments to take for.
Max: Well arguably the 17th Amendment, which got rid of the state legislatures choosing their senators, created a more top heavy federal structure. So that was certainly a tremendous structural change. I make some arguments as to why we shouldn't go back to the old system directly, instead move forward to something new. But I would say that is one of the structural changes that led to the further furtherance of the other structural changes.
Aaron: So one of the things you mentioned in the lead in was talking about the 17th Amendment and the maybe misunderstanding or misinterpretation that many conservative advocates have that the purpose of the Senate was to represent the states. You eluded that it's a little more complicated than that. So maybe you can clarify on that.
Max: Okay. Okay. Yeah. The problem is the Senate had a dual purpose. So let me actually just read from the paper here, page four, the Senate.
“Convention delegates like James Madison, and Alexander Hamilton, originally viewed the Senate as a long-term, more professional upper house. Madison came to the convention, thinking senators would be appointed by the House of Representatives and Hamilton wanted them to serve for life.”
So that's crazy. For Hamilton, I think he wanted the president to appoint the senators, and they just like stay there forever.
Aaron: And he was also in favor of, at least I think at some point, an executive with a life long term, was he not?
Max: Yeah, yeah, I believe so.
Aaron: He certainly carried over many, many ideas from our time as a British colony.
Max: Yeah. Well, they all did. And Madison was thinking, okay, maybe he was more democratic about it. He was like, okay, well, maybe the house will pick them.
And this is the problem because-. So let's not bury the lead here. I'm breaking the Senate into two institutions, a new Senate and an Executive Council, which we'll talk about in a minute, which is a board of directors for the government. But essentially, originally, when I proposed this to you, I thought that the Executive Council would be chosen by the Senate. And then I realized no, James Madison, wanted the Senate to be chosen by the house, and he was convinced from the Constitutional convention, that's a bad idea. It just completely breaks the independence of the two different sides of the coin. You don't want one side of the coin appointing the other side of the coin. That doesn't make any sense.
So when they came in, they were thinking House of Lords, they weren't thinking protector of federalism. Now that was different when they came out of the convention and the thing was ratified, which I think is kind of more important when you say originally. But what happened? They came in with John Dickinson of Pennsylvania. He really wanted the House of Lords. And he's like, “You know how we're going to have the best lord-ish type people is if the state legislatures picked them.” So he said that and ultimately, people agreed with him. And then people started saying, “Oh yeah, you know what? That also gives the state some agency in the federal government too.” Okay so now we have a dual purpose.
And so I think I have this quote from Madison in Federal 62. He said, “It is recommended by the double advantage of favoring a select appointment.” Like, oh, yeah, we're gonna have the elites. “And of giving the state governments such an agency in the formation of the federal government must secure the authority of the former and may form a convenient link between the two systems.”
Okay, that's a mouthful, these 18th century lines. Although they had to write this all in quill pen so they didn't have time to go through all the edits that I can do online very, very quickly. But basically, he say, and that's what people say. Yeah, it's supposed to be like the more professional upper house, and it's supposed to represent the states. So they gave it two different purposes and that was kind of a problem. And it's supposed to represent the people.
So when the 17th Amendment came in, because the Senate wasn't focused on one purpose, it wasn't obvious how to uh-. And people were asking for it to be elected by the people of the state for a long time at that point. There was no focal point, or what I call a shelling point. There's no obvious mission that everyone agrees on that can sort of say, “Okay, well, how should the Senate work?” Well,we refer to its mission, and then that gives us the answer. But we didn't have that because it was given a dual mission that I think kind of contradicts each other. Because if you appoint a Senator for six years, how are they going to represent their state? You gave away the keys to the kingdom. They're there for six years. There's nothing your state can do after that. So yeah, that's kind of a problem.
And so, in the new Senate that I've outlined, it's no longer that the state legislatures have to pick the Senator. But it's more like, okay, the state law gets to tell you how that state picks the senator. So it could be the legislature or they could pass a law to do something else.
Usually, state legislators don't really want to do it, because then it's like, “Okay, I'm running for state legislature, I have all these state issues but all the people care about who are voting for me is who you're voting for, for senator?” And so they don't want that. So maybe they might do something like, maybe we might have some internal electoral college or something to pick our senators but then the state legislature has oversight over them.
Aaron: Much like Congress does not actually want to pass a declaration of war. The state legislatures don't particularly want to be held responsible for the appointment of senators to the federal government.
Max: Right. And so what I concluded is, that's fine. You guys go pass a law telling us how to represent your state best. You can give them any term length you want. I actually think I put a provision in there that the federal government could set some kind of maximum. So they can't say like, “Oh, once we tell someone they're in, they’re in for 20 years.” But they can set any law they want as to how they're represented in the Senate. And they pay them. They're paid by the state, not by the federal government.
Madison wanted the federal government to pay them because if the state government pays them, then the state government could take their money away. And they’re influencing my house of lords in ways that they shouldn't, you know? But now, they're not that so we take that away. So that's sort of what we're doing with the Senate here.
Aaron: So quick question on that, and maybe this is just the wrong way to be thinking about it. But setting aside for a moment, the fact that we're going from each state having a single senator, each state having two senators to having a single one. So obviously, there's going to be 50 senators who are a little bit pissed that they're out of a seat. But let's ignore them for a moment.
Max: Yeah. Although there is a thing, and I took your suggestion where they could send a full delegation of however many people they want. There's just some order of succession of who can vote and that kind of thing.
Aaron: Right and that's on the state's dime since they're paying them now.
Max: Right. Yeah.
Aaron: But since we are scaling back, we are reducing the mission statement, the responsibility of the Senate. How do we convince the Senate to buy into this basically chopping off a piece of their power and giving it to someone else? Or is the answer there, well actually, the Senate doesn't get to decide on this. The states decide on this. And this is giving the states more control over the Senate.
Max: Right. So in the constitutional amendment process, particularly if you do like an article five convention, that means that the states state governments are in control. So we just have to convince the state governments, and hopefully this compromise has a bunch of stuff in it that we're not going to get all into it today. But hopefully, we can convince people on both the left and the right, that this is a good idea so you could have a broad spectrum of the American public. Still a very, very high bar, but you wouldn't convince the Senate.
Now, that whole reduce it to one senator thing, that might be something that has to be dropped in order to get this passed. I would be shocked. And it wouldn't defeat the purpose. It's just well, sometimes I had to make the decision. It's like, do I want to put how I think it should be worked? Or do I want to put what I think will come out of the process, of the political process when this is turned to the political process? And sometimes I chose one, sometimes I chose the other.
Aaron: Yeah, I mean, there's a question to be asked, and I think we may have talked about this in our previous episodes. Why do we even have two? And I think simplifying down to one makes sense, right? But it might be a hard sell. It's always fascinating.
Max: A lot of this would be.
Aaron: It's always fascinating when there's a redistricting and a state has one less district or even if the number of districts don't change, but all of a sudden two representatives are now in the same district. And so they have to, when they previously thought that they were incumbents, and now they're actually competing for their seat. That's always fun to watch with a little bit of schadenfreude. Seeing this happen to like all of the senators at once would be fascinating.
Max: Musical chairs.
Aaron: Although, the mechanism for how they would be elected or appointed would not necessarily be uniform and simultaneous under this new system anyway.
Max: Yeah, correct, correct. I mean, they could do something where they have two senators that kind of switch off every few months. It's up to the state. The state can do it however they want. So there's that.
Aaron: And there’s a bunch of stuff that happens in the Senate in terms of like, committee assignments and chairmans and stuff that. But there's no law about that. That's all done by Senate and House policy currently and so that could certainly be adapted. There would probably be some growing pains there.
Max: Oh, absolutely.
Aaron: I have faith that they'll find a solution.
Max: Yeah, yeah. Well, we're getting rid of half the Senate because they're making room for this new Executive Council, which is really important. So the problem is that the founders gave the Senate a lot of executive authority, which is weird. Why are they giving something that's in the legislative branch, executive authority? I guess they kind of said, “well the President needs some oversight. We have this thing here called the Senate that is smaller than the House of Representatives so it seems like a good place to put it.” But-.
Aaron: When you say executive authority, are you talking about the need for them to approve presidential appointments?
Max: Yeah, exactly.
Aaron: Or more beyond that?
Max: Presidential appointments, yeah.
Now they have some others that I kept. I kept the right to approve treaties because I read, we'll get into George Mason in a bit. George Mason said that's more of a legislative function. So it's good to have them do that. And then secondly, I had them keep their approval of Supreme Court nominations. Although now I have the Executive Council choosing the Supreme Court nominee. So that's a little different.
But yes, the whole-. Part of the problem with the administrative state right now, is that. I don't even want to, I think we need to kind of jump ahead to this. We're jumping ahead a little bit in terms of the administrative state. But it’s like okay, we have all these agencies and government. They're technically in the executive branch. Or not technically, they are. Although some of them are more independent than others.
Aaron: But they fall under Executive Branch authority, per..
Max: Yeah. But the President doesn't have actual authority over them. So now you have… Most of them are run by commissions with commissioners. And these commissioners are usually nominated by the President. The President may or may not personally be involved in all of those nominations. And then it goes to the Senate for approval. And then those commissioners stay for a few years because that's the length of the term. And then underneath those commissioners is a peer permanent bureaucracy.
So it's like, where is the say? How much is the actual Republic having a say in terms of this policy? Because these administrative agencies are creating what's called administrative law, which are basically laws without laws. They're sort of like policies that are written by the executive branch and also unwritten policies like, who are we going to go after? And when are we going to look the other way when it comes to enforcement?
And so they have these kinds of weird split accountability to both the President and the Senate. And it's also very weird. Let's say the senator from like, I don't know, Ohio, is picking the Commissioner for the FCC. What does his representing of Ohio have to do with that? And so that's also a little bit strange. And also, it's not a legislative function. So that's also a little bit strange as well.
Aaron: Right, I assume that at least the majority of these executive branch agencies came into being by virtue of a legislative act. And that's how they're kind of deriving that power.
Max: Right. They almost outsource some legislative functions to the…
Aaron: Right. They say, oh, we need an Environmental Protection Agency, and we don't know what all the rules they need to enforce are but they should fall within these bounds and then you guys can go fill in the details. And in theory, that's well and good but 50 years down the line, it's very possible for that to go a little bit off the rails.
Max: Yeah, well, several reasons. I mean, you have regulatory capture where the biggest companies in that space are often the regulators for that space. And then you just have just administrative, bureaucratic capture. Like those people are there for a long time. They get to basically ignore the political appointees, and they run their own fiefdoms and kind of have this pact-.
Aaron: And I know we've talked about the spoil system before and how this was essentially a cure to that. But again, it has developed its own diseases within it that needs to be somehow rectified.
Max: Right.
I do want to go through. Let's talk about George Mason, before we get more into this because one of the things that I found since our last discussion is that George Mason, he was one of the delegates of the Constitutional Convention. He wasn't, unfortunately, he died before, I think early in George Washington's terms so he didn't really have much of a say in the actual running of the federal government when it was going on when all the precedents are being set. But he was there at the Constitutional Convention. And from the notes I've read from Madison's notes, and I read from George Mason some of his essays on his own. He was basically there saying, “You guys are screwing it up.” The whole time this is happening.
So first of all, he comes in and he's like, “Bad idea having a president. Bad idea.” And they're like, “Why is that a bad idea?” Because we're going to turn into a monarchy. You remember, we just fought against a monarchy. You don't want you don't want a monarchy. And then I think the people said, “Eh, we kind of need a president.” And so why is that probably the 1780s were kind of nuts in the States. And I think people realized we need some kind of like… Most organizations have a chief executive and we should probably have a chief executive.
So all right, he lost that argument. So then he comes back, and he's like, “Look, you need to have a council for the President. You need to have some kind of, what I would call today a board of directors, to get this to work.” So he was actually going the council slash Board of Directors route. He was not going the House of Lords route which is a lot more modern, actually. I think. Because now we're like-.
Aaron: So he was proposing this instead of a Senate? Not in addition to it.
Max: No, no, he was all for the Senate. But he said, “Look, if the President doesn't have a council, who's going to be leading the president?” He's like, well, there's a few choices. Could be the Senate. That would be bad because we don't want the Senate, we don't want the legislative branch running the executive branch. And also, it could also be the great departments, what ended up becoming the cabinet, and what today ended up becoming the administrative state or the deep state when it's like, yeah, the government is going to end up controlling the president without this. And wow, he was really dead on there.
I could read the quote, and this is a great quote. This is Mason. “The President of the United States has no Constitutional Council. Something unknown in any safe and regular government. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites, or will become a tool of the Senate, or a council of state will grow out of the principal officers of the great departments, the worst and most dangerous of all ingredients for such a council in a free country .From this fatal defect has arisen the improper power of the Senate in the appointment of public officers, and the alarming dependence and connection between that branch of the legislature and the supreme executive.”
So there it is. He called this all out as they were drafting it up. So when I read that I was like, wow, there it is. That's pretty impressive. So yeah, I don't know what you think of that, but I thought that was dead on.
Aaron: I'm interested in the idea that this, what he refers to, in some cases, as a privy council. It'sit's almost like you hear about this in the British government, sometimes. They have a minister of this and a minister of that, but then they have some minister without portfolio who's kind of there to advise in general and they are not necessarily the head of a department or have a specific assigned role. And that seems, at first glance, perhaps extraneous but I think there's huge value in that, that they're free to, well,l not speak the interests of the department itself but to actually provide their unvarnished counsel.
Max: Right. And in this proposal, these councilors are chosen by the states. And they're chosen one at a time. And instead of six years, I increased it to seven years so that way, there's an election every 14 months. And I do that to cycle through the different seasons, and political seasons, and natural seasons, just so that you get kind of the pulse of the nation at very different time periods to try assess it. And the fact that you can pick them one at a time means every election, every electoral cycle for these things, it's going to be like, okay, we're going to focus on what is the council missing right now? And so I think that would be a good way of doing it.
Aaron: Yeah, I mean, I think there's certainly a risk that people will evolve into having specified roles, even if it's not a formal specification.
Max: Oh yeah, that's fine.
Aaron: This mechanism does allow for some self correction there.
Max: Right, right. And that's fine if it’s like for a council of six people. It could be like, okay, you're going to look into these issues and I'm going to look into those issues, and we agree. That's fine. But six people is a lot different than dealing with advice and consent from the Senate. Because with the Senate…
Aaron: Cause that's a hundred people. And it's really a few hundred, because they've got all their chiefs of staff. And yeah, it becomes a whole circus.
Max: With six people, the president could walk in and say, “Hey folks, what do you think about this?” Yeah, he can't really do that with the Senate. He can call the Senate majority leader and the minority leader and hash things out there. But then it's just like, oh, okay, so essentially, just the kind of the power players in the Senate.
Aaron: And this hadn't occurred to me until just now. But I assumed that also that the Executive Council would be protected by, what's the term? Executive privilege. So the president can't go to the Senate and have an off the record conversation with them.
I mean, he might be able to have an off the record conversation with the majority leader. But there's little or no guarantee that the majority leader is not going to turn around and use that information. Whereas the the idea of the President and his counselors being able to have a frank discussion, weighing options and not be worried about is this going to end up in the Washington Post, or the Wall Street Journal or New York Times tomorrow morning, and causes headaches is of huge value,
Max: They're much more likely to be able to do that. Yeah. And the electoral system, which the countersave method, which we could do a whole show on, is hopefully going to pick for more independent candidates. So that's kind of exciting.
So one person I spoke to, while doing this, I put that in the acknowledgement sections is my cousin, Jordan Marks. I worked on his campaign for tax assessor in California last year. He won, very, very close election like 52-48. So I was literally sitting there sending out texts. We had this program where there was some law, we had to press the button to send out each texts so it could be boom, boom, boom. And I was sending out texts, I was calling people all day.
So that was exciting to work on. It was exciting to see him win. And that job of tax assessor is a real job. It's not. It's not a political put-your-feet-up job.
Aaron: Not just a sinecure.
Max: Yeah. But I talked to him about this and he said, “Look, sometimes when you have a board or commission, it doesn't do any good. So you have to have some argument.” So I was like, okay, I need to have some argument why this would do better and I wrote this here.
He also, by the way, mentioned, I didn't put this in the paper, the California Board of Estimate. And I think it's too much, I believe his position on that was that that board was keeping the state fiscally responsible, and that's why they're getting rid of it. But I could be wrong. So sorry, Jordan, if I misrepresented your position there. But that's one possible way of going.
I feel like some boards are bad. The New York City Board of Estimate which was gotten rid of in 1989. They got rid of it because Staten Island had the same vote as Brooklyn and that was like mal apportionment. I don't think that was the reason why it was bad. It was bad because it was a bunch of people who were elected for other positions that were somewhat unrelated, put together on a board and then they got to decide who can build a building, who can get a permit for this and that, and it was just political favor trading.
And so you don't want that. You want people elected specifically for that thing. And you don't want them to be in the business of political favor trading, which I think having those long terms kind of prevents that. Political favor in terms of,I don't know if the Supreme Court does things like, “Well, why don't you vote with me on this issue, and I'll vote with you on that issue.” That doesn't necessarily bother me as much as if they were saying like, “Oh, I'll change the votes for donations. I'll change my ruling for donations.” That will be bad.
So yeah, I think the former would happen on the council where they kind of trade. Okay, I want to do this, you want to do that? Let's compromise, that's fine. But they wouldn't be like, oh, I need campaign donations now. How's this gonna affect this? Maybe there'll be a little bit of that but that's sort of what the system is supposed to prevent.
So okay, so here's my argument for why it would be better. First of all, I have this interesting clause in it that I'll read in the actual constitutional text that I wrote in my new constitution. That's indented and italicized. It's written: “Executive counselors are subject to the federal impeachment process.” Finance put that in. “They shall be well compensated as set out by law, which may include financial promises and derivatives thereof to reward fiscal and economic success as defined by Congress.”
So what is that? That's like the equivalent of stock options. So Congress can say, “Okay we want, we want you to be rewarded for whatever, the value of the dollar or our bond rating or whatever.” Those kinds of things. And somehow structure the compensation based on the metrics of the health of society, and the health of the government, and the health of the country, essentially.
So I wrote below. “This executive compensation package might seem strange at first, but it will ensure a strong pool of talent for many sectors of public and private life for any council election. This talent pool will lead to better fiscal management. Furthermore, the bonus structure playing a similar role to stock options in the private sector could be used to provide additional incentives. One might argue that the decisions by the Executive Council would be just as bad as the permanent bureaucracy that we have today. This is unlikely because of the incentive structure of the council, their position within the government and their manner of election. In addition to their reward structure, councilors are not beholden to any one department or party. The council would attract a variety of professions and expertise in its membership. Any deficiency or blind spot will become a point of discussion for the next council election. As a focus group of long term strategic thinkers, they are more likely to take historical lessons seriously.”
And then, of course, I end with that whole, “Don't expect too much.” Ultimately, the council’s success should not be measured against some utopia, but in comparison to the current administrative regime. Obviously, we're talking about government here. Still, we're not talking about anything else.
Aaron: So while you were reading that something occurred to me, a hypothetical. So let's assume for a moment that, I guess the the manner in which the council is elected, would somewhat counterbalance this. But I was gonna say that if we're coming off of eight years of, let's say, Republican administration, one would assume that would mean that the council would have a heavy Republican win. But I guess that's not necessarily the case because the council is not appointed by the same mechanism.
So my concern was going to be that now, in year one of the new, let's say, a new democratic president comes in, they're going to have a council that is likely to be majority opposed to them. And so the council may spend much of its time blocking them or undoing their work. But I think that's supposing a scenario that's not particularly likely to arise, given how the council is formulated.
Max: Yeah, also it's not-. First of all, I don't think that's true that after eight years of one party. So historically, the midterms have gone to the other party. So perhaps the council would do the same, we don't know.
Aaron: And that's assuming a level of partisanship that is not necessarily baked into the council.
Max: Yeah and also like today's day today's political environment won't be around forever. Things will be very different. But the whole midterm election where the other party does well has held pretty much, not all the time throughout our history, but many times.
Aaron: It's certainly the exception that a president gains in their midterm.
Max: Right. Right. So I think, actually, you might have some councilors who are opposed somewhat to the President. I mean think about, like during Obama's term, you'd have a lot of Republicans in there. And then during Trump's term, you'd probably have a lot of Democrats elected to the council.
Now, I don't think, given the way they're elected, you wouldn't get very highly ideological type people in there. But I do suspect they would kind of lean the other way. And so the new president coming in might actually have more power. So the council does have some power to override the president, but it has to be like five out of the six. So that's very unlikely to happen, I think. It can happen occasionally. It's only like to have some kind of moderating effect. Because I'm assuming that if you have five of six counselors agree, it's not a crazy position.
Aaron: Yeah. So there's, and I don't know if we talked about this on the episode or if it was in our pre-show discussion here, but this ability for the council to alter or nullify administrative policy?
Max: Right, yes.
Aaron:.So that that would be significant grounds for, I don't like to term them as a rogue Council, but let's assume for the sake of argument that you had a council that was unified in their opposition to the president, they could do quite a bit with that level of power. However, one has to assume that on the seventh person Council, one of which is the president. So of the remaining six, they need a supermajority.
Max: Supermajority is five out of the seven.
Aaron: Yeah. So if if five of the six non-President counselors are in favor of a particular action, then one would think that they have the the pulse of the nation in in in mind, and would be representing those interests.
Max: Right. And note that they can't override everything that the President. Rhe President still has way more power than them, because the president is still Commander in Chief of the military, and a lot of.
Okay, but why don't I just read through all of the powers of the Executive Council, because they're actually kind of interesting, what I've settled on. Obviously, if this were actually to go through the process of being at an article five convention, people would mangle it to no end. But let's see what I came up with here.
One, the Executive Council shall inherit from the previously constituted Senate the role of providing advice and consent to presidential appointments. So now, basically, instead of having to go to the Senate for most things, the president can just go to the council. Okay, great. Seems a lot easier. Seems like you're gonna get better advice. These people have been around a long time. That's their whole job. They don't have to worry about reelection, they don't have to worry about their party.
Okay, two, Executive Council shall have the power to nominate Justices of the Supreme Court, as well as ambassadors and other public ministers subject to the advice and consent of the Senate. Okay. We're used to having the president select Supreme Court Justices. That seems kind of weird to have the person playing the game appointing the referees It kind of feels like having the previous champions of the NBA appointing the new referees for the ones who have retired that year. The championship team appointed.
Now, that doesn't mean they're going to screw it up but it's just a weird choice. This council seems better. Why is the guy who's running the military and representing America around the world doing all that executive administrative stuff? Why is that the same person who's choosing the Supreme Court nominees. It doesn't make so
Aaron: So in these first two items, we've taken something off the plate of the Senate and something off the plate of the President and given the boat to the council. And taking something off the President's plate is a little bit more nuanced because the President is also a member of the council, and one would assume the chairperson of the council.
Max: Yeah, I don't know. It doesn't have to be.
Aaron: But it's not that what they say goes.
Max: Right, right. Okay.
The next one I actually just copied from the New Hampshire constitution. Which is great because the New Hampshire Constitution has an executive council. It's not like we made this up through new cloth. There's other governments, Switzerland has one.
No money shall be issued out of the Treasury. Except this may be appropriate for the redemption of bills of credit, treasure notes, blah, blah, blah. Basically, if you owe something you got to pay it. But by the president, with advice and consent from the council, this disbursement is consistent with article one section nine proceeding pertaining to Treasury disbursements.
So basically, the Constitution says, If you're going to give out money from the treasury, it has to be for these reasons. So they have the right to review that. That it's in accordance to the Constitution. Okay, great.
With a majority, the council may recommend the repeal of legislation signed into law, no less than six years prior. With such recommendation, both houses of Congress have 90 days to confirm the legislation with majority vote, or the repeal is effective.
So that's an interesting one. So they can basically focus on repealing the cruft of all laws that are no longer necessary.
Aaron: So this no less than six years prior, it essentially means that nothing that was passed during the current council’s term.
Max: So I was thinking about that. I mean, there are seven years. But yeah, I just use six years because it seemed like that's our Senate term now. That seems reasonable. I mean, it might be longer than that. People might say, “No, we want 20 years because we want things that were passed in the previous generation, or something longer than that.” But that was just sort of my one idea. That is actually one of the few numbers in there, where I'm I'm not exactly sure what to set that number at.
Aaron: But the idea is that this gives it… It gives the legislation at least a few years to prove out that it's effective or useful or not. Yeah, and if it's proving that it isn't, then they can come in and purge it.
Max: Yeah, I would suspect they wouldn't use this power very much except for things that are like, nobody really likes this law, but nobody wants to do the work to repeal it so we'll just repeal it. At least that's what I would hope. I don't know.
What do you guys think out there? localmaxradio@gmail.com. I think I'm gonna get a lot of people weighing in on this.
Aaron: Let us know what your first choice law for repeal would be?
Max: Oh, yeah. Absolutely.
Okay, the next one is the council attain-. Okay, now we're talking about super majorities. The council attains a supermajority, if at least five of the seven are voting. With a supermajority, the council may reduce the amount of any appropriation made by law, so long as the disbursements from that appropriation are under their power of review by law.
Okay, so that sounds like it's written by a lawyer. It was written by me, it was written by a coder. Because it was like, okay, this is actually a big deal. Because this is a line I can veto. This is like something that was passed by Congress to spend on. They're just saying, “No, we're not going to do it.” And so if they just had the power to do that, whenever they wanted with a majority, that would severely limit the ability of Congress to pass budgets, which may or may not be a good thing but I didn’t want to think too hard about it.
So I said, “Okay, if they could do it under a supermajority, then it would only be in extreme circumstances that they could do it.” And that little exception at the end is like okay, if the government like-. They can't stop interest payments and things like that. Like bonds payments because that would just be absurd, wouldn't it?
Aaron: No, these are new appropriations being passed, essentially? So when Congress passes a law, and then it's subject to potentially this review?
Max: No, it's already in law at this point. Yes. It's already in law at this point. This is after the fact. This is not like a veto. No, it's already been passed.
Aaron: So theoretically, they could come along and, let's say was the ACA. And 5, 6 years after its passed, they could come along and say, “Actually, we're going to reduce the degree that XYZ is covered under this law, because we believe that it is inappropriate.” And descope that.
Max: Yeah, yeah. So when you're electing- .
Aaron: Assuming that they have the supermajority?
Max: Yeah. So when you're electing these people, you want to elect people who are going to think hard about that. Yeah, exactly. But at that point, it’s like which political process do you trust more? I mean, it's good to have that balance of power.
Okay. Secondly, with a supermajority the council may declare any legislation unconstitutional and shall include their reasoning in any such declarations. This is after it’s law. The legislation is immediately null and void. However, any member of Congress has standing to challenge this reasoning and the Supreme Court, which has the authority to evaluate and overrule the decision. So, essentially, they get to say, if something is unconstitutional, they get a shortcut to the Supreme Court to get them to review.
Aaron: So this this removes the need for standing and going through multiple layers of the appellate court and whatnot, that under the current system would normally be required.
Max: Exactly. And I think you see the benefits of that. And then the final thing, this is the one to fight the administrative state, which um…
Aaron: Before you go to that, so if they declare something unconstitutional and the Supreme Court takes it up. Would the council be the one representing the case at the Supreme Court?
Max: You know, I haven't thought about that. I think that could be something that the legislators can fill in.
Aaron: Yeah, it's certainly a solvable problem. Just piqued my curiosity anyway.
Max: Yeah, I don't know. I think it would be the executive branch versus the first legislative branch. The executive branch versus the legislative branch arguing it out at the judicial branch so quite a crossover.
Aaron: Governmental Thunderdome.
Max: Exactly. Exactly.
Okay so… Man, I complain about all these agencies here. I almost want to read this whole thing. I'm talking about examples of agencies, the SEC, the EPA, the FDA, the FCC, the FTC, the IRS, the CDC, and OSHA. This is but a sampling of agencies embroiled in some recent controversy. Books and volumes could be assembled documenting the abuse of power and appearance thereof within these organizations. It's not to say their officers or employees are somehow corrupt or unaccountable, but their accountability is not properly weighted toward the people they're supposed to serve.
Aaron: Okay, so accountability and incentives.
Max: Yeah, yeah. We talked about this before. I talk a lot about the intelligence agencies. And equally alarming is that these agencies systematically censor speech through intermediate platforms by claiming concern over misinformation and foreign propaganda. Big problem these days and there are issues going through the court right now about this.
So okay, the administrative state clause is, with either a supermajority, or a simple majority, that includes the president, the council may alter or nullify any administrative policy originating in the executive branch. They may also remove administrative officers and employees who make policy. This does not remove any powers previously held by the President to act unilaterally in cases of policy and removal.
So in other words, the president can do some of this already. But the President's hands are tied in a lot of these cases. So it's like, okay, great. Do we want to untie the President's hands and just allow the President to muck one-on-one directly with any aspect of the executive branch? Well, that seems a little bit too much for one person to handle. So if we want to get control over this, probably having this elected board seems like the best way to go.
Aaron: Right. For example, and I might be mixing up a little bit the details here, but I think, like the director of the FBI is a position, which is nominated by the President and approved by the Senate under the current system.
Max: Yeah. Like most of them.
Aaron: However, it's like a 10-year appointment. And so they don't just serve at the pleasure of the President. That, technically, maybe the President could come to the director of the FBI and say, I'd like your resignation, please step down. But that raises a lot of red flags and is very poorly viewed. And I think there was a lot of talk about that with Trump.
Max: What was it? Comey?
Aaron: Yeah.
Max: Yeah, I don't. But he could probably-
Aaron: But in this scenario, if you have a majority of the council that believes this director of whatever agency is not acting in the best interest of the nation, they're overstepping bounds, or they're not carrying out the things that we've requested with them, it no longer makes it the president weaponizing his power for personal reasons. It's the Executive Council joining together in this decision and moving for a replacement. So that's a little bit less suspect. More checks and balances and whatnot.
Max: That's a good example. Even If a president could remove some of these, they might choose to go to the council and do it anyway. Because it's so much more politically palatable to do so.
Aaron: Similarly, if the President has gone rogue and is instructing like the IRS. If Trump tells the IRS “I want you to pull all of Hunter Biden's financial records, and do a thorough investigation because I have a personal issue with him.” The Council could step in and say, “No, ignore that order. You do not follow that direction. I am with a supermajority.” They could counter an executive directive on that.
Max: Exactly, exactly. So there you go, it all fits together. For those of you who are interested in this stuff, definitely check this out. It's on localmaxradio.com/labs. You can see the paper Toward a New Great Compromise. I also posted on ResearchGate. I'm excited to have this out.
It's hard to get people to really think about the whole thing. People often read a little bit and they have their opinion right away as to why it's unworkable. I understand, I'm not going to overthrow the whole US government.
Aaron: I'm glad you clarified that.
Mac: Yeah, I'm just suggesting a change that I think would work. I also think it's a good thing to go through where it's like, if you want to understand the government, if you want to understand how the Constitution formed, well give it a shot yourself. And that's sort of what I did. If you want to understand what decisions people were facing, when they were at the Constitutional Convention, give it a shot yourself. So that's what I did.
And so I like how this fits together currently, I'm sure I'm gonna get a lot of challenges and ideas going forward. We have so much more to talk about in this but I think we're gonna end for today. So any last thoughts? And then we'll sign off?
Aaron: No, it's just that this has been a fascinating thing to watch take form and I'm eager to hear any feedback from our listeners on the latest iteration.
Max: Awesome. Awesome. And I'm gonna send this out to a bunch of people I know, including some constitutional scholars, and we'll see what kind of feedback that I get from that.
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