
An amendment to the Constitution has not been ratified since 1992, and with the political corruption and chaos of recent years, some believe we are overdue. Skye Jethani talks with David French about what's broken within the American government, why...
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Guess what day it is. It's French Friday. It's French Friday, so grab your fries and say hooray. David French is here to play on French Friday. It's French fry day.
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David French, welcome back, Sky.
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Thanks for having me back.
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Okay, so we're going to do kind of a civics lesson today for our Skypod Holy Post slash French Friday audience. You wrote a piece recently about the need to amend the Constitution, or at least your proposal to amend the Constitution. And before we get into those specifics, to take a step back, a lot of people think there's a lot of bad things happening in American politics and in the American government. Abuse of power, corruption, and there's a lot of finger pointing on all sides. But when I think about it, there's kind of two dilemmas we have here Constitutionally. One is that the Constitution as written was not designed to protect us from every possible corruption or abuse of power that's imaginable. The framers assumed that the American people themselves and our leaders would have some level of character and virtue that they would carry into public office. So that's problem number one. Problem number two is the protections that are in the Constitution to prevent corruption and abuse of power aren't being used by our political leaders. So there's not enough of them there, apparently. And the ones that are there are not being used. And then before I kind of turn it over to you to unpack what you think is going on here, when various problems are identified, it seems like everyone's pointing the finger and saying, well, they started it. So think about the gerrymandering mess that happened in Texas recently. Trump told Texas to redistrict so that they could gain five more Republican seats, probably in 2026. And in response to that, California's now gonna do the same thing on the Democratic side. Illinois is threatening to do that. And so everyone's doing terrible stuff. But it's always they started it or pardons, like Trump is pardoning all kinds of terrible people. But then they point to the Biden administration who also pardoned, abused the pardon power. You've written about the weaponization of the Department of Justice. And there's a lot of finger pointing. Well, they started it. Da, da, da. So it seems like we can't rely on our political leaders or the parties to self regulate or discipline themselves to not abuse power. And that leaves us to, well, is it time we just really need to amend the Constitution? We actually have to put some guardrails in place here because we can't trust Our political leaders or the parties to govern themselves. Take us to your column and what you identified as perhaps the most problematic part of the constitution that you want to change.
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Yeah, so I thought that's a great introduction. And there were a lot of people who looked at the 1787 Constitution. And when we are talking about the constitution, what we're going to be mainly talking about is the constitution of the first founding, the 1787 constitution that sets up the balance of power between the branches. And so the second founding, you know, this is the Civil War, and the civil War amendments, was really focused on securing and protecting individual liberty. The first founding was really about establishing this republican form of government. That's where you get that exchange between Benjamin Franklin, you know, Mr. Franklin, what form of government do we have a republic if you can keep it? You know, so they're trying to establish a republican form of government. And what they were trying to do was to take the traditional role of the monarchy, the absolute rulers that you saw in Europe, and then just break them into different branches of government. And so, you know, whereas the English king especially. Well, before, you know, the English civil wars and before parliament asserted its power, the English king was the defender of the faith. The protector of the realm was the lawmaker, was the law, was the adjudicator, was everything. Right. And so this first founding takes all of those functions and just spreads them out. It takes the protector of the faith and just throws it out of the government entirely. That's not what we do. Okay, defender of the faith, other than.
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Defending the right of people to have their faith and not.
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Yes, exactly.
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Right.
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Yes, exactly. But not. The government's not the guardian of religious orthodoxy. So that's out of. Okay, Lawmaking is taken and given to a legislature with a veto. You know, the president has a veto. The commander in chief, the leader of the armies is given to the president, but the power to declare war is given to Congress. The power to adjudicate is put in an entirely separate branch. So you can see how all of this power is diffuse with the goal being no monarchy. Like, that's the nothing that is a monarchy, nothing that looks like a monarchy, nothing that acts or smells like a monarchy. We don't want that. But when the 1787 Constitution.
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Yeah, sorry, if I can interject here, because in my study of this stuff, reading of the Federalist Papers, things like that, there was an assumption then not just that you would spread out these responsibilities across different branches of government, but there was an assumption by the founders that members of those different branches of government would be protective of their branch and its power.
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Yes.
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And they didn't really have the imagination that those branches would be populated by people of political parties. And loyalty to political party ends up becoming, in many cases, more important than loyalty to your branch of government. So if you're a Republican in Congress, your loyalty is to your Republican president, not to your other colleagues in the branch of government to whom you belong, which has created all kinds of its own problems.
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Yeah, yeah, you said that very well. So Madison is thinking when he's writing, ambition must be made to check ambition. This is sort of because nobody in the framer's minds, nobody's completely trustworthy, which is why when we get in like three seconds to the pardon power, why it's so puzzling. But anyway, in the framer's mind, nobody can be fully trusted. And so they're splitting out power for that reason. And they're essentially saying, okay, if I'm the Speaker of the House, what is my ambition? My ambition is to magnify the power of the speaker of the House. That would be my ambition. That's the way Madison is thinking. So if I'm president, I want to magnify the presidency. If I'm a judge, I want to magnify the judiciary. And so you can see how in their mind, that would set them in competition with each other.
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Right.
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However. However, if partisan politics becomes more important than anything else and I'm a Republican speaker of the House and there's a Republican President, then the way it works is if I try to maximize my power, speaker of the House against a Republican president, I will lose my job. That the way the parties lock in, I'm disloyal. I'm Benedict Arnold, I'm a betrayer that you are loyal to your party. And who is the leader of your party? It is the President. And similar on the other side, it's a completely. Almost a purely reactive thing that if I am a member of Congress and I'm on the other side, my job is to oppose the other party, that is meaning opposing. So the President becomes the sun, and everything else orbits around the presidency.
B
Okay, hold on. Let's pause, though, for a second. The Founders talked about. They didn't talk about parties as much as factions and even factions. George Washington, in his farewell address, warned about the danger of factions in the government and things like that. So you could argue the Founders were a little bit naive because they didn't see the potential of these factions or political parties undermining the division of powers that they had built into the Constitution. However, political parties are not a recent development. It isn't like these things emerged in the 1990s out of nowhere. And who could have thought? And now we have all this corruption. Political parties emerged immediately with Adams and Jefferson. And so we've had these. The dynamics of political factionism or parties shortly after the Constitution was written. And not to kind of sugarcoat American history, there's been a lot of corruption and problems over the years. But I think a lot of people would argue what we're seeing today is of a completely different caliber of dysfunction of government. Right. So how do you explain the fact that despite not anticipating some of this factionalism or party politics for about 250 years, we've done okay with parties and this factionalism off and on, off and on. But most people are in agreement. It is at a breaking point. Now. What's different about now versus 100 years ago, for example?
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Yeah, that's a great question. So if you look at that original Constitution, there were a lot of people who are saying, predicting a lot of the things we're dealing with now. These were the antifederalists. So they look at the Constitution and they say, wait a minute. This original Constitution, which I don't like the term co equal branches of government, it's actually set up for the legislature to be supreme. It initiates spending, it declares war. It can impeach a president, it can impeach a Supreme Court justice.
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It's article one, for goodness sake.
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It's the first Article one. Yeah, yeah, exactly. And so it's made. And it's a good thing too, from a Democratic perspective, because it's the most representative branch of government and most accountable.
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To the voters, most accountable to the people, most accountable.
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Every two years, the House of Representatives is in front of the voters. But the anti Federalists look at the presidency and they looked at the pardon power where the president could grant pardons for federal offenses to anyone. They looked at the vagueness of the executive vesting clause that invested the executive power shall be vested in a president of the United States and said, look, an unscrupulous person can use the relatively broad vague grants of power in Article 2 to accumulate an enormous amount of power for themselves. And so the answer that Madison and others had was yes, but. And the but was two things. A person, George Washington, and a principal impeachment. Okay? So the founders would say in response that were defending the original Constitution. Look, if you believe the president is stepping out of bounds, you can impeach you can absolutely impeach. But the real answer was this original presidency was almost crafted for one person. George Washington. Yeah. Have you read the Reluctant President?
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Did you ever read Ron Chernow's biography of Washington?
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Yeah.
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It's so good. And you can understand why that generation of American leaders saw him and said, of course, this is the man who should lead us.
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This is what it is.
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And they crafted a presidency around somebody of unimpeachable character and virtue and who was not power hungry or at least hid it if he was incredibly well. But not all men are George Washington.
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Right, exactly. So think about all the ways in which Washington put his imprint on the presidency, beginning with he left after two terms. There was no term limit in the original Constitution. This is a huge deal. This is by his own volition and his own example, he steps away. He could have held that for life. He could have been there as long as he wanted to be, but he stepped away. He could have set a precedent that presidents get there and stay until someone removes them. And he set a precedent of stepping back. He set a precedent of graciousness, of refusing power, refusing titles, royal titles. He set this example. And think how long the two term example lasted until fdi, Until Franklin D. Roosevelt. I mean, that's a long time. And so the way I would say it is. Think of it is this way. Impeachment, as we know, is dead. It was in 2020 when the first. The first senator from their own. From the president's own party voted to an impeach a president.
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Right.
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In 2020. That was Mitt Romney. Impeachment does not work. Okay, so let's get that out of the way. And you know the scripture. There there arose a Pharaoh who knew not Joseph. There have arisen presidents who knew not Washington.
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Okay, let me pause you there again for a second because maybe this is a chicken and egg kind of question. I have to assume that there were highly ambitious, even perhaps authoritarian minded or inclined presidents in the past.
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Sure.
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And yet none of them dared to seek a third term in office before fdr? Was it really because they so esteemed the example of George Washington? Was it because they were so virtuous themselves, having lived off the inertia momentum with it?
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Or.
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Or was it the fact that the American people would never have tolerated somebody because the American people had more understanding, more virtue, more esteem for Washington? And if a president had sought a third term, the American people would have just been like, hell no. And they knew that. They knew. There's no way I could get away with this. So they didn't dare try. And now we're in a very different place. I think it's a yes.
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Yeah, I think it's a yes to both, but not always yes to both. So of course there were some presidents who, I mean, if they wanted to be a monarch, if they could have been a monarch in their heart of hearts, would be a mon, I'm sure, right. At the same time there were presidents who know that's the right model. You step aside, this is how you preserve a republic. And then hovering against the background was a combination of the people and the elites of the time, that members of Congress, et cetera, who were very firmly convinced that Washington had set the standard. And so, you know, let's suppose somebody was a demagogue megalomaniac and they wanted to stay for a while. It would have been unthinkable because the argument would have been, do you actually think you're more valuable to the country than George Washington? Right. Who do you think you are? Exactly. Right. And so, but, but, and I would say, you know, when FDR chose to run for that third term, he did break through a norm so dramatically that it was very quickly after he did that that we had the constitutional amendment for term limits. Right, right.
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And he did it at an extraordinary time, both the Great Depressionary time and World War II and all that. So. And no doubt he had a very healthy ego.
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But yes, I had very mixed feelings, mixed feelings about it.
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But that's my point. When he did break into that third term, the response of the American people was, okay, yeah, we voted for him for a third term, but this is not, we don't want this to be the norm. We're going to codify the Washington example of a two term limit. And they passed the amendment. But this also gets to the fact that beyond the Constitution or including the Constitution, there were a number of societal and political guardrails against authoritarian abuse of power. So as much as we've been kind of trashing on the political parties, they had a positive role to play in a lot of this. The parties and the party bosses used to be gatekeepers to make sure that completely corrupt, unacceptable characters were not given the chance at political power. They were just barred from running for various offices. That was more or less undone by the primary system that came into effect in 1974. And then in a way, campaign finance reform actually diminished the power of political parties because it allowed small donor giving to bypass some of those gates. The electoral college as originally conceived, was in A way, an opportunity to not give the people direct say in who they put into the White House because Electoral College members could bypass the will of the people and vote for whoever they wanted. That's changed. Congress, you mentioned, has the power to impeach. They've never done it significantly. No one until Mitt Romney had the guts to vote to convict a president of their own party. And then the last check was always the people.
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Yeah, right.
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But in order for the people to be a check on corruption and authoritarianism, we mentioned that they get if Congress doesn't fulfill its duty to protect the Constitution and refuses to impeach a corrupt president, then the people should vote those bums out. Right. They should kick the Congress out and put. Well, that depends on two things. One, they have to have a working knowledge of our Constitution and our political system. They have to be trained and educated in basic American civics. I think it'd make a pretty good case based on data that most Americans, they can't even name the three branches of government, let alone know. Yeah. But then the other thing is they have to actually be informed enough by the media as to what's going on. And now we have a media ecosystem that is siloed and broken and driven by business interests rather than actually informing the electorate. So all the checks from top to bottom that had been there in generations past feel like they've broken down.
A
Well, I'm so glad you brought up the Electoral College and the primary system. So the Electoral College would have been, if you're going to go back to 1787, one of the trump cards to say, yeah, we're going to not have a horrible person because of the Electoral College. Right.
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People might vote for a terrible. But they're not getting in.
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They're not getting in because the original vision of the Electoral College was not just some sort of bean counting exercise that we use to give smaller states slightly greater. Say the original intention of it was think of it as a committee meeting of wise men to select a president. That that was the original intention of this thing. So in that circumstance, getting together 100, 150 or however many, you know, it's built over the years. 528 now, you know, 528 of America's most esteemed leaders who get together, the intention was that they would then get together like the Vatican almost.
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Yeah, like a conclave.
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And the white smoke comes out and the President is announced. And so they would have been puzzled at the idea that their Constitution did not protect against a demagogue because the whole way the president was selected bypassed popular vote, but the diminishment of the Electoral College and turning it into essentially just a slight tweak, very meaningful, but slight tweak to popular vote elections. That is not what was intended. And so you strip away one thing that was protecting against the rise of this demagogue, and then you've got the other diminished protections, the example of Washington, impeachment, et cetera. And then sky. Yeah, you brought up a great point that one of the reasons why our system was more stable prior to the modern era was we did not have the open primary system.
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Yeah.
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Which we did have a version.
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I hate it. I wish I could just make it go away.
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I hated it. And so what we did have in the Democratic Party and the Republican Party was kind of a version of an electoral college. It was, you know, you had party leaders and party delegates who had a much more sort of institutional view were selecting their candidates. And so the proverbial smoky open primaries, the smoke filled room.
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Yeah.
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Then once the primary started, you know about the primary system there in the army, we used to use this term for plans that sounded great, but in practice were awful. It briefed well, the primary system briefs well, like more people, more participation. But the reality is, yeah, you do get more people and more participation. But the people who participate in primaries and the people who our small dollar donors are not representative of the larger public. And so this is how you get to this point where every couple of years, every four years, you have this now perennial complaint. How did we get these two right.
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I forget the exact statistic, but in 2016, the Republican primary, I think Donald Trump, obviously he won the nomination of the party, I think it was with less than 20% of Republican primary votes.
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Well, the raw numbers, I believe, if I remember correctly, he got about 17 million primary votes. So if you're going to add up all of the votes that he got in the primary, it would be about 17 million. And then in the general election, he gets about what, 77 million ish somewhere around there. Similarly, Biden in the primary, he ran largely unopposed. He got about 15, 14, 15 million votes. Kamala Harris gets about 75 million votes. So you can see that that's a very real way to quantify how small the primary electorate is compared to the general electorate.
B
Okay. But if we were to steel man this stuff.
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Yeah.
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We would say these changes, the changes to the electoral college, where it's actually the electors are bound by the popular vote to cast their ballot for the person who won their state, the party change towards a primary system. You could make the case that all of this is in the service of expanding democracy, giving more people, more of the American people, more of a voice in selecting their leaders. And who could be against that?
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It should.
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That's a. I mean, you could make a case theologically, it may not be the best, but it's an American value that we want to expand the number of people, enfranchise as many people as possible in the vote. But that gets back to the other piece I mentioned, which is if the people are the final check on corruption and authoritarianism, then you need people who understand how the government operates and are properly informed about what's actually going on. And you and I have talked many times about how so many people don't have a clue what's going on because they exist in a media silo that doesn't inform them. And I'm not saying that only exists on one side. There are silos all over the place that we exist. And then the media doesn't see its role primarily as informing and educating an electorate to make good decisions with their vote. They see it as we wanna keep eyeballs glued to our screen so that we can sell them catheters and gold. And that's. That's not a great way to run a republic.
A
No, I mean, and look, we have had massive problems with the partisan press in the past, and it has not worked out well for us. One of the instigators and one, you know, I'm fascinated not by the fact that we had a civil war. I think that with slavery so entrenched in the south and growing abolitionism in the North, I mean, I think most folks would have been, you know, most folks sort of seeing that with kind of the God's eye view, would have seen how entrenched the Confederacy, the Southern states were going to be, and they were not going to let go of their peculiar institution without force. And so I'm not surprised that a Civil war happened in America. I'm always interested in why it happened, when it did, what were the things that were the triggering. And one of the things that was triggering the Civil War, and this is part of what I looked at in my book that came out in 2020, was conspiracy theories in the partisan press. And the partisan press whipped, in particular Southerners into a frenzy after John Brown's raid on Harpers Ferry. And so when Brown was imprisoned and tried and executed, there were parts of the north that really celebrated him. And the way the Southern Media portrayed that was they were celebrating John Brown's abolitionism, but really celebrating his desire to trigger a slave rebellion that would kill a bunch of white Southerners. And so it was sold as the Northerners are, like, in a frenzy for your blood. The Northerners are wanting you dead. I mean, how much have we heard that kind of rhetoric now? Right.
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It sells, right?
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Yeah.
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Terrible outrage sells.
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If you read the Texas secession declaration, it contains a conspiracy theory that people from the north were trying to poison people in Texas. Poison them. And so the party, and arguably the Spanish American War, is whipped up in part because of hysterical journalism. So we have had problems in the past. The way I would put it right now is we're taking a lot of problems we've had before, and they're kind of cascading together. We've had problems with populism and demagoguery, especially in the south, and the Huey Long era and all of that. Well, that's emerging now. We've had problems with the partisan press before the Civil War, Spanish American War, other periods that's emerging now. We've had problems with presidential power grabs. You know, we've had Woodrow Wilson in World War I and the way he tried to explicitly punish his political enemies. So you're taking several of these things and you're putting them all together in one moment. And I think that's one of the reasons why it feels. Everything feels so fraught.
B
The metaphor that comes to mind is a rogue wave. I don't know if you've ever.
A
Yeah, yeah, yeah, right.
B
So it's not a tsunami. A tsunami is caused by a seismic event under the ocean floor. But a rogue wave is this rare phenomenon where different waves traveling across the ocean, they just so happen to line up that their wavelengths connect and they multiply. The size of this massive wave and it leads to catastrophic destruction. It can sink huge ships, whatever, but you can't prevent them. You can't predict them. They just line up. And that seems like what's happening right now is you do have these different movements in American history that have done damage at different times, but they're all happening at the same time, which could lead to catastrophic upheaval.
A
I would say we can actually identify the rogue wave. Yeah. And it's the year 2020. So think about this. And because I genuinely sky think that what we're dealing with right now in the aftershock, we're dealing with the aftershocks of the way that 2020 broke into people's brains in. In many, many ways. So Think about this. This is. My colleague Michelle Goldberg said this on. I think it was on the Argument podcast towards the end of the year. She said, in one year, we went through 1918, a pandemic, 1929, a stock market crash, 1974, an impeachment crisis, and a. In 1968, a wave of riots and assassination attempt.
B
Oh, that was 2024. Sorry. Yeah, but.
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And then. And. And then. And then. Yeah, and. Well, assassination of 2024, but also in 2020, if you're going to bleed into the very beginning of 2021, a coup attempt unlike anything we'd seen in American history. So all of those things are happening together. And I think that that rogue wave wiped out a lot of our civil society. That. I think it wiped out a lot of our mutual feeling of shared citizenship. I think it wiped out a lot of our. There was rising animosity before 2020. I think it just tipped us over. And then what we are dealing with right now is the aftershock of all of that, the consequence of that rogue wave. The ship is listing, the water's coming in through all the bulkheads, and that's sort of my little theory.
B
Okay. I think we've done a pretty good job of diagnosing the problem.
A
Yeah.
B
Let's get back to a potential fix or partial fix, which is amending the Constitution.
A
Yeah.
B
I think it was your show, Advisory Opinions, where you had some constitutional scholar on at some point. I don't know what episode it was or who it was.
A
We always have somebody.
B
You always have somebody. And one of you, you or Sarah asked the scholar what would surprise the founders or the framers of the Constitution if they were dropped into our time and saw what we're doing with the law and constitutional, that what would surprise them? And I think the scholar said they'd be most surprised that we haven't amended the Constitution more. Because one of the arguments for ratifying the Constitution, with all of its flaws and imperfections, which was it can always be amended like it's built.
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We can fix it.
B
We can fix it.
A
Yeah, right.
B
We have the Bill of Rights and all the other amendments. We'll fix it. We'll fix it. And future generations of Americans will adapt the Constitution to the circumstances and crises and realities of their time. They didn't see it as a frozen document. And we have amended the Constitution. But it's been a while.
A
It's been a while.
B
We get into why that is. But put that aside. You wrote your piece arguing for the need to amend the first sentence of Article 2 of the Constitution, you quoted it earlier. As it's currently stated, Article 2 begins, the executive power shall be vested in a President of the United States of America. What's problematic about that sentence and how does that contribute to the problems we're seeing right now? And what was your prescribed amendment?
A
Yes. Okay, so what is problematic about it? Well, if you go back and you read the Antifederalists now I've been rereading more and more of the Antifederalists as we've been facing strains in our constitutional system. And it's kind of eerie to go back and read them and see what they could forecast. Now I think they saw some of these things happening sooner rather than as late as they are now, but they really did see a lot of this. So what they're in an antifederalist paper, Cato for Cato, who is the pen name for what we believe to be Governor George Clinton of New York, who was a long standing colonial governor, one of the early vice presidents of the U.S. one of the founding fathers, that he said that that language was vague and inexplicit and that in other words, it creates an ambiguity and the ambiguity is very clear in the words the executive power. What is the executive power? That's not a self defining term. Now there's some symmetry here. Article 1 grants the legislative power to Congress, Article 2, the executive power to the President, and Article 3, the judicial power to the judiciary. So it lends itself to what is the executive power. And that's never been, it's not a self explanatory sentence. Now there have been a lot of people who've done some really excellent historical work and they said, look, when they said the executive power, that meant the responsibility to execute the laws passed by Congress. That's what it meant.
B
Well, executive means the one who executes, you're executing. Yes, you are the one enacting these things passed by Congress. And the fact that it's Article 2 coming after Article 1, which outlines all of Congress's power, it seems a logical way of defining this. But some people have taken it far, much, much farther.
A
Right. And so what has emerged in the intervening years is something called a unitary executive theory. And then what you would call Trump executive theory, which is an extension of unitary executive theory. So what was unit? What is unitary executive theory? Unitary executive theory. And just in a sentence is the, the entire. The President is the executive branch. In other words, if you're going to talk about the executive branch, it's one person, it's the President. And at its core, so therefore any attempt to limit the President's power over the Executive branch is a constitutional nullity.
B
And so I have a question about that. You're the best person I know to ask this. Does that mean, if you really take that to its logical end, does that mean that Congress cannot pass any legislation that would force the President to create certain structures for the execution? So here's what, we'll give you an example. Like if Congress passes a law saying, okay, we're passing a bill saying that water needs to be clean and can only have so many problems, whatever it needs to be, clean water is important, can they then also in that bill say, and the way this shall be done is we're going to create a Department of Environmental Protection that shall be led by a cabinet secretary, da da da da da. Or is that going too far? Is that infringing on the executive power? And all they can do is pass a bill saying we want clean water. That then goes to the President's desk. And it's completely up to the President to decide what's the best way to achieve that, because he alone is the Executive.
A
Great, great question. So let me distinguish between what I would call mainstream unitary executive theory and hardcore extreme unitary. So mainstream unitary executive theory would say, yes, absolutely. Congress can establish a Department of Energy. Congress can even for low level employees, non policymaking employees, establish civil service protections. Congress can require Presidents to spend money in accordance with Congressional directives within that Department of Energy. However, Congress cannot, cannot limit the President's ability to hire and fire policy making employees. And that Congress cannot constrain even as it creates a Department of Energy, it still cannot constrain the President's policymaking discretion within those agencies. To the extent there is discretion, executive power discretionary, the President is going to have a policymaking role here that Congress is going to be limited in its ability to impact. Now that is sort of a soft unitary executive. That's the unitary executive theory that I grew up with in the law, so to speak. And that's where you have some conflict over concepts like independent agencies. Wait a minute, it's got to be a legislative agency or an executive agency. It's got to be one of those two. And if you put it in the executive and there's policy making functions, then that's under the control of the President. And the President can hire and fire the policymaking officials. Hardcore unitary executive would be, well, yeah, Congress, you can say appropriate, say $50 billion for capital improvements at public universities, or $50 billion for X or Y or Z. And you can articulate what the purpose is and the President can then choose how he executes it. So if he wants to funnel it through like a Department of Education or not that he can do that. That would be extreme. Like an extreme view that in essence what Congress can do is tell the President, yeah, clean the air or. And appropriate money for it, or seal the border and appropriate money for it. But if the President is going to however many employees, that takes many or few. What kind of agency that takes, then that's going to be up to a President.
B
Okay, so there's clear. This is where we get into the problem with the second article. There's ambiguity here about what this means. Let me try to. For people who are totally losing it and not.
A
There are some people checking out.
B
Yeah, like I'm on here. Okay, let me try. Let's give a really simple example. You mentioned it earlier, the border. Congress passes a law saying, we want the border secured and here's $50 billion to secure that border. What I'm hearing you say is the extreme radical view of the unitary executive would say that's all Congress can do. From that point forward, it's entirely up to the President on how that money is spent, where it's spent, what it really means to secure the border. And that President might decide, I'm only gonna spend half of that money and it's all gonna be like drones guarding the border.
A
Right.
B
And robots, and that's it.
A
And.
B
And that's up to him or her to decide. And if he doesn't spend all the money, that's fine. If he does spend all the money, that's fine. But that's the extent that Congress would do. Others would say, no. Congress can pass a bill that says, here's $50 billion to secure the border, and that means building a wall and hiring border agents and da, da, da. They could specify all kinds of things and what this looks like. And the President is just the one who has to do that and report back to Congress that it's been done. That's the difference here. So how much latitude does the President have to do whatever the heck they want and how much power does Congress have to tell the President what he or she must do?
A
So that extreme versions. You're talking about another way. Let's take a real life case. There's litigation right now around the Department of Education. And the Trump administration is essentially trying to unwind or dismantle the Department of Education as much as it legally can. And so it has fired a ton of people. Just a ton of people. And so one of the arguments is going to the Supreme Court is that, hey, look, Congress can tell us, you know, hey, we're going to fund a student loan program, but it's up to us as to how we do that, how many employees that's going to take, et cetera and.
B
Hold on.
A
So you really are.
B
My understanding is also Congress created the Department of Education.
A
Yes. Right.
B
It wasn't the past president who created that department. Congress created it, but the president's dismantling it.
A
Yeah. And so that even the existence of a, quote, Department of Education, they might acquiesce that, well, we can have a titular Department of Education, but how we execute this plan on Congress is entirely up to us. And we can gut it, we can staff it, we can do what we want as long as we are. And as long as we are. Well. And this is where it gets squirrely. Okay, so Jack Goldsmith, professor at Law School, professor at Harvard, sorry, said, and a former senior DOJ official under W. Bush, who George W. Bush is, got the best description of this is with the Trump theory of executive power. And it's got four components. A, the Constitution vests all of the executive power in the President. B, all subordinate executive branch officials are removable at will by the President. C, the President's Article 2 duty to take care that the laws be faithfully executed entails an exclusive presidential power to decide which laws to enforce or not. And D, the president can thus direct and control all subordinate executive officials. So you can see how that is moving so far beyond, like the general, what I called normal unitary executive, that it really takes Congress and puts it into an advisory role. Well, if you can decide what laws to enforce or not.
B
So we talked about this months ago, and maybe it's exhibit A in how the Trump administration is doing this. Prior to coming into office, Congress passed a bill that required the sale of TikTok or the shutdown of TikTok in the United States unless its Chinese owner sold it to an American owned company. And the Biden administration said, we're on our way out. We're not dealing with this. Trump can deal with this. Trump gets into office and has just completely ignored that law and said, I'm not going to shut down TikTok and I'm not going to require it to be sold. So, I mean, a lot of people go, who cares? It's TikTok. Well, it's what it represents. It's the President of the United States saying the Article 1 branch of government, Congress can't tell me what to do because I'm Article two, I'm the unitary executive. And because I'm responsible for executing the laws, if I don't want to execute.
A
It, you can't make me.
B
And my understanding is the way that Congress was supposed.
A
I just wanted to give a shout out to my. I'm sorry, go ahead.
B
My understanding is if things were actually functioning the way they're supposed to, Congress would look at that and go, no, you're violating your constitutional oath because you're not executing the laws we passed and you're getting impeached and removed. But we all know that's never gonna happen. So there's no reason why this president or any other president should care what Congress says.
A
Yeah, yeah, and let me just give a brief shout out to my unitary executive scholars out there in law school land. I know that when I read that A, B, C and D, you are all jumping up and down and saying, that's not unitary executive, that's something crazy and more. Yes, you're correct, that is a extension well beyond what would have been any kind of mainstream unitary executive theory. But that's where we are. This is where the presidency is. And you know, so what does this mean? Sky? You know, as you're walking through and talking about all of this, think about how vulnerable we are and without knowing it, to a truly terrible power grasping demagogue, how all of these things have come together, all of these streams have come together at once. The rogue wave smashed into the ship, the ship is listing to port, and now we are extremely vulnerable and even more vulnerable than we were before 2020 to this kind of, you know, demagogic power. And the checks have failed. And that's why I have proposed a. And look, let me just say I know that the odds of a constitutional amendment happening now are zilch zero. Not a nun. I know that. But I also know something else. I also know that in American history we've had cycles like this where there has been intense polarization, intense conflict, and in the past they have always ended with at least one party having a period of dominance. And so what I am saying is that if and when we reach the point where we are looking at the rubble of what we've done to our country and we say, how can we stop this from happening again? I'm over there in my corner with my hand raised saying, I've got this idea that hopefully we've been chewing on for a bit in the public square and my idea is to change the sentence, the vesting clause. Sentence away from the executive power shall be vested in a President of the United States of America. To read, a president of the United States of America shall execute laws passed by Congress. And that makes explicit what was sadly implicit in the original vesting clause, that the executive power means you execute laws passed by Congress. Now, presidents would still have veto power. There would still be judicial review. They'd still, you know, have the power to negotiate treaties, et cetera, et cetera. But this would make it very clear that if, for example, there's a Department of Education, you gotta keep it going. If there are civil service protections, you gotta protect employees from arbitrary firing. It would make it very clear that it is Congress that is passing the laws, and the laws are set by Congress, and then the President's responsibility is to steward and execute those laws.
B
Okay, I think it's a great idea. But part of the reason we are where we are is not simply the fact that this president, as well as some previous presidents, have tried to maximize their power under Article 2. Part of the reason we're here is because there's a whole lot of members of Congress that are abdicating their power under Article 1.
A
Sure.
B
So simply specifying that the President is the second article, not the first, and needs to obey and execute the laws passed by Congress doesn't guarantee that Congress will do its job in ensuring it's passing laws, number one, and that it's holding the President accountable for executing them. So that raises this other thing I wanted to talk about, which is another piece you wrote just today about the President's weaponization of the Department of Justice. And combining that with the President's pardon power in Article 2 creates a really interesting. We already talked about how the President seems like he can ignore whatever laws he wants that Congress passes and choose which ones to execute. But then when you combine that with his pardon power, it means anybody who does run afoul of the law, he has the power to get him off the hook. We saw him do that with all of the January 6th rioters. No matter how passive or violent they may have been, he just pardoned all of them. And so he's able to use the Justice Department, his executive power, and the pardon power to essentially reestablish a monarchy in America, to be both the legislative, the judicial, and the executive branches all in one. Is that another area that you think needs to be looked at? And perhaps an amendment brought forward to change the President's pardon power so that it can't be abused so aggressively.
A
Oh, I think we're flunking a national IQ test if we don't do that. I mean, to be honest. And I said that in my piece. I mean, I said, look, the amending the pardon power to me is just. And I think this will only become more apparent. I would almost guarantee you this sky as this Trump term comes to an end, especially if a Democratic president is elected in, you know, if a Democrat wins the election in 2028, you're going to see the issuance of pardons at a scale that may well boggle the mind. Right.
B
Like anybody who ever worked for the Trump administration gets a pardon.
A
And I think there's going to be reason why Trump would be worried about prosecutions of separate. And aside from being worried about a vindictive reverse weaponization. Right. That look, there's a lot of squirrely stuff going on in the markets right now. There's a lot of weird indicators around, like when Trump makes announcements about tariffs, et cetera, that there appears to be people tracking trading patterns or seeing evidence of insider trading going on. We don't know who, what, why. I mean, there's a lot we don't know, but there's a lot of smoke out there.
B
To be fair, it's not just Trump and the executive branch that seems to be engaging in this, but there's a ton of it. And there's for a long time been going on in Congress because they as a leader in the House or in the Senate, you have access to a whole lot of information that's not public. And there's no regulation or law against people elected to seats in Congress engaging in this kind of insider trading. I feel like that's a no brainer amendment.
A
That's a big no brainer that we.
B
Should be passing that you can't have a seat in government and be using your role to get rich in the stock market.
A
Oh, that's a no brainer. There's several no brainer. I think that's an absolute no brainer. Yeah, but you're going to see, I think you're going to see. I mean, and then look, there's a lot of weird things happening in the crypto industry right now about, you know, there's just a lot of very strange things going on where you're seeing a lot of people kind of right in front of our faces cashing in on power and access in pretty dramatic ways. And so I think what you're gonna end up seeing is an exercise of the pardon power towards the end of this Trump term, that's going to take your breath away. And I was gonna say that may create some real demand. That may create some demand where you can actually get the ball rolling on a pardon amendment.
B
What about the Department of Justice in general? You wrote this wonderful piece, and I know you and Sarah have been talking about it on your podcast, about the things the Trump administration is doing which are breaking all kinds of norms. For example, it's long been a norm in the Justice Department that they will not announce if there's an investigation into an American citizen for anything because they may find nothing in the course of that investigation. So they don't typically announce any names until someone's actually indicted for a crime, because it's just unfair, because that citizen has no way to defend themselves. But the Trump administration has thrown that norm out the window. And they're like, yeah, we're investigating this person and that person and the other, and they all happen to be political adversaries of the president. Those kinds of things are happening now. Is the genie out of the bottle? Is there any way to go back? Is there any way to reestablish norms once they're broken?
A
Oh, it's so hard. I mean, it's so hard, and it's very. It's impossible to do it actually without Congress intervening as well. So, for example, let's suppose at the end of these four years. Well, not. Let's just not suppose. Let's just look at what's happening now. Let's say at the end of the four years, you have present trends continue, and you have a Department of justice that is an engine of political vengeance against maga's enemies and has given a complete pass to public corruption from Republicans or public corruption from Trump's allies. And you have it staffed, especially at the senior leader levels, from top to bottom, with Magazealots. Okay, well, the next president who comes in to make the Department of Justice, just to simply restore it back to for a temporary time period, to restore it back to prior practices and standards would involve purging a giant number of people again. And so you would have just had the purge. To get the DOJ to where it is fully magified, you'd have to repurge it to get it un magified. And the whole time it's being repurged, all of the MAGA figures are going, look, see, they're just like us. It's all the same.
B
This is the finger pointing that I was talking about at the beginning, where each side is just saying, they started it. And so we're okay doing this now.
A
But so that's why I say it's going to take Congress to step in and pass some enduring reforms that you just won't have the next president coming in and doing the big turnover. But again, if you have that unitary executive, that extreme unitary executive, then even those congressional reforms are going to be subject to defiance from future presidents.
B
Even if you don't have a unitary executive, what incentive do members of Congress have for passing those reforms? If it's essentially, it would also hand tie their own party.
A
Right.
B
They don't want their. I got into a conversation recently about the redistricting that's going on in Texas and Gavin Newsom, the governor of California, who's decided to engage in proportional warfare with Texas, saying tit for tat, tit for tat. Saying, no, we're going to do, we're the Democrats in California, we're going to do the same thing. And two wrongs don't make a right. But some people are standing up and saying, hey, this is insane. We can't just. Everything terrible that one side does, the other side matches it. Someone has to be the bigger person or the bigger party, the one who stands up for what's right in the Constitution. And yet no one wants to do it because who wants to be the person fighting with one hand tied behind their back when you're going up against an unvirtuous foe?
A
So here's the paradox, guy. Here's the absolute paradox. I don't think we can diminish the power of the presidency without presidential leadership diminishing the power of the presidency.
B
In other words, we need another George Washington or Abraham Lincoln.
A
Bingo. Yeah, bingo. And I have long ago, I have for a long time resisted that notion because it doesn't feel if you sit there and you say, okay, I have a plan, I have a policy. So like my colleague Ezra Klein, his wonderful book about abundance, that's putting forward a plan, that's putting forward a set of policies that I think provide a framework for reform that could be really important for America. And so for a long time I've sort of thought that's how you do it, you put forward a plan. And now, because if you're expressing a hope for a person, that's just a hope, that's not a plan. Right. But now I've had a little bit of different thought about that. I thought that presenting a framework for republic saving leadership is kind of a plan in the sense that you're presenting a vision that a leader can adopt. And so that. To me, to me, I feel like if you're going to talk about how do we survive this rogue wave, how do we build a prospering republic going forward? I think you're wanting to do is putting out, like, it's almost like you're putting out an audition call for a Washington Lincoln type figure, but with the specific vision of what that would mean. Here's the vision for leadership to help this republic survive. And so that's a hope and a plan at the same time. Sky. But I do think I've come to the conclusion that it's going to take visionary leadership. I don't, it's, there's too, there's too many barriers to sort of all of America adopting three amendments. Three amendments to save America. No, no, no, no. They're going to be chanting a person's name.
B
Yeah.
A
And the person whose name is being chanted needs to have the three or two or four amendments.
B
So it sounds like we need the plan. And there's various people, including yourself, who are throwing out ideas for what that plan could be, the amendments or structural changes that need to be adapted. Then you need the vehicle to carry that forward, which is a leader. And I would say a leader, not just a visionary leader, but a virtuous leader who won't take that public support and construct something that benefits themselves. But like Washington can say, like Washington, we're gonna push through these changes for the sake of the country. And I will embody those changes in my character in the way I operate as an executive, and I will release control and power. So, I mean, it's Maximus in Gladiator, right? Where he wants to give Rome back to the people and make it a republic again and be virtuous and surrender. But my goodness, who could that possibly. When I look, I don't obviously know a lot of people in political leadership, but gee, it doesn't seem like we're bringing out our best and brightest these days for public office because it's such a horrific place to be. It seems to draw, you know, creatures from under the rock.
A
You know, this is a matter of fervent prayer. Sky. I mean, like, if you, if you look at key moments in American history, Washington, if you, you know, one of my favorite books to read about the, the founding era is this book called Valiant Ambition. And it, it, it traces the competing arcs of Benedict Arnold and George Washington. And you could see that with different leadership, what was existing in the, you know, the American Revolution could have gone very badly Right. And we could have created a very bad. A very bad republic given some of the. The character of some of the opposition to. To Washington out there. If you go and you look at some of the presidents who were running leading up to the Civil War, they were some of the most, you know, some of the best things you could say about them is they were just total mediocrity. Yeah, right. And. And then you have Lincoln. That's providential. That's providential that we had Lincoln. So that's providential that you had a Washington. So some of this has got. Got to say. It's gotta be providential. You know, that we've been very. And we also know that key moments in American history when we've not had. Not had effective, bold leadership. Think about the Compromise of 1877 that ends reconstruction. We have suffered generations of consequences for poor or mediocre leadership, and we're kind of in that right now. And the question is, is, do we have it in ourselves? Is there that figure that can be born out of this culture? That's the question.
B
What's frightening to me is statistics would tell us that somewhere between 30 and 35% of Americans think Donald Trump is a George Washington kind of figure.
A
Yeah.
B
They believe he is that virtuous leader who's going to hand the republic back to the people, drain the swamp, fix all. And that brings me back to an uninformed electorate that lives in a media silo that reinforces that perception and has no idea what's actually going on. And maybe there's 30% on the other side who think a Biden or someone else like that is their. But I think the majority of Americans are smart enough to realize we haven't had a George Washington kind of transformative figure in a very, very long time. And I'm not saying everybody who's occupied that office has been completely corrupt or unvirtuous. There have been virtuous people in those offices. But we need more than a virtuous person right now. We need a virtuous and visionary leader who, with the backing of a great plan and the support of a majority of Americans, can bring structural change that's unprecedented in. In our lifetimes.
A
In our lifetimes.
B
That's a big lift. That's a very big lift.
A
It's a heavy. But, you know, it's a heavy moment. And to get out of a heavy moment, I think we can muddle through. You know, there's a difference between muddling through and, you know, we can muddle through with normal presidents after this, but we'll be diminished, I think. Sky so what we're talking about is something other than muddling through. How do you break through rather than muddle through? And here's what's so grievous. I think a lot of Americans are ready for a significant change. But we have one community, one community whose super, super majority support for this president is propping him up, and that's the evangelical church. I mean, it is really remarkable to me, sky, the extent to which this guy depends almost completely on this super majority evangelical support to maintain his power, his hold, everything that he's doing. There's just this incredible poll out of Pew Research center that shows that white evangelicals, this is in April of this year, Support had a 72% approval rating of Trump. The next highest approval rating amongst any religious subgroup was white Catholics at 51%. So that's a 21 point difference. And so you really do have, and we've had a lot of supermajority demographic support for people before. I mean, black Democrats, you know, black Americans, super majority for Democrats. We have, we, we've had this before. But what makes this in some ways particularly troublesome and dangerous is the level of religious zeal attached to this dedication is what is making, I think, turning this all up to 11.
B
Okay.
A
And yeah, so, I mean, we got.
B
To wrap this up. We could talk a lot longer. It sounds like you're adding a necessary component in the sequence of ingredients that we talked about earlier. We talked about the need for a virtuous and visionary leader. You talked about the need for a plan that would reform the structural deficiencies of our current political system. Maybe the thing that comes even before that is we need a spiritual awakening or repentance on the part of at least the evangelical church in America, if not more broadly, to recognize the deception under which they have fallen and the way that they have exchanged their Christian birthright for a bowl of bad political porridge until they wake up and come to a deeper commitment to the way of Christ. You may not get that public support for that new plan that would then equip a virtuous and visionary leader to be able to pull it off. Sounds like the order it.
A
I'm afraid, you know, and this is one of the things I wrote in my book, the Heart change has to precede everything else. There has to be at least a glimmering of an opening towards your fellow citizens and towards and a glimmering of hope and faith that you can relinquish power. And that the will to power is not the only thing keeping your liberty alive. And I think that message has been sold to the church for so long that it's so deeply culturally embedded. That is, in essence, America and the church are over unless the church is in charge. And that message has leaked into the Christian culture to such an extent that it's going to be incredibly difficult to pry it out.
B
My goodness, David. On that hopeful note, we're going to wrap it up. I look forward to seeing the conversation from our Holy Post plus subscribers about all of this. Thank you for your insights, for your wisdom, for your perspective. I always enjoy these conversations and look forward to doing another one next month.
A
Oh, can't wait. And Sky, I could talk founding for hours and that's just what the people want, right? That's exactly what I just want more.
B
That's what I want. It's what I want. Thanks, David French Friday is a production of Holy Post Media featuring David French and me, Sky Gitani. Music and theme songs by Phil Vischer. This show is made possible by Holy Post patrons. To find out how you can become a Holy Post patron and to find more common good Christian content, go to holypost.com.
Host: Skye Jethani
Guest: David French
Date: August 29, 2025
In this French Friday edition of The SkyePod, Skye Jethani and David French embark on a deep dive into the structural flaws of the U.S. Constitution and why, given contemporary crises, it may be time for significant constitutional amendments. The discussion covers historical context, the original intent of the framers, the modern breakdown of political guardrails, the dangers of the "unitary executive theory," and the desperate need for virtuous leadership and civic renewal—especially within the American church. The conversation balances historical insight, legal analysis, and frank concern for the future of American democracy.
Timestamp: 00:21–02:54
“We can't rely on our political leaders or the parties to self-regulate… so is it time we just really need to amend the Constitution?”
—Skye Jethani [01:59]
Timestamp: 02:54–09:28
“If partisan politics becomes more important than anything else… The President becomes the sun, and everything else orbits around the presidency.”
—David French [06:46]
Timestamp: 09:00–29:06
“We’re taking a lot of problems we’ve had before, and they’re kind of cascading together.”
—David French [25:19]
“In one year, we went through 1918, a pandemic, 1929, a stock market crash, 1974, an impeachment crisis, and 1968, a wave of riots…”
—David French quoting Michelle Goldberg [27:40]
Timestamp: 29:10–45:54
“All of these things have come together, all of these streams have come together at once. The rogue wave smashed into the ship… and now we are extremely vulnerable… to this kind of demagogic power. And the checks have failed.”
—David French [42:47]
Timestamp: 45:54–53:52
“If we don’t amend the pardon power, we’re flunking a national IQ test.”
—David French [47:44]
Timestamp: 53:52–64:02
“I don’t think we can diminish the power of the presidency without presidential leadership diminishing the power of the presidency.”
—David French [54:04]
“Heart change has to precede everything else. There has to be… at least a glimmering of an opening towards your fellow citizens… the will to power is not the only thing keeping your liberty alive.”
—David French [63:10]
On the Founders’ Assumptions
“The Constitution as written was not designed to protect us from every possible corruption or abuse of power… the framers assumed the American people… would have some level of character and virtue…”
On Party Loyalty
“If you try to maximize your power… against a Republican president, you will lose your job. That’s the way the parties lock in… Who is the leader of your party? It is the President.”
On the Transformation of the Electoral College
“The original intention… was think of it as a committee meeting of wise men to select a President… like the Vatican almost.”
On the Collapse of Historical Norms
“When FDR chose to run for that third term, he did break through a norm so dramatically that… we had the constitutional amendment for term limits.”
On Presidential Reform
“A President… shall execute laws passed by Congress. That makes explicit what was sadly implicit in the original vesting clause.”
On Evangelical Support Enabling Abuses
“…one community whose super, super majority support for this president is propping him up, and that’s the evangelical church."
“How do you break through rather than muddle through? …There has to be at least a glimmering of an opening towards your fellow citizens and towards… hope and faith that you can relinquish power.”
—David French [63:10]
For more in-depth episodes and extras, visit holypost.com/skyepod.