John Boykin: What if the Constitution Expired?

Show Transcript

What if Our Constitution Expired?

[00:00:00] Bob Gatty: It's a fact that Thomas Jefferson said the U. S. Constitution should expire when the last founder died. And it's also true that George Washington expected the Constitution to last no more than 20 years. Now, what if they were right? What if the Constitution did expire? What would happen today with the political upheaval that's taking place in America with both sides relying on the Constitution to justify their positions?

[00:00:31] A new political thriller imagines what might happen if the United States had to hammer out a whole new Constitution today. Who would we entrust to do that? to that monumental task. Who is today's George Washington, or Benjamin Franklin, James Madison, or Thomas Jefferson?

[00:00:51] What would happen to our country if indeed our treasured Constitution was no longer in force? That's our topic today with John Boykin, author of the new political thriller, "The Constitution Has Expired", so stay with us. 

[00:01:09] Something had been troubling John Boykin for decades. If the American form of government was the best in the world, why didn't other countries emulate it?

[00:01:19] And while the U. S. Constitution was proving nearly impossible to even amend, emerging countries were writing their own constitutions from scratch. What if the U. S. had to do that all over again? This became the premise of "The Constitution Has Expired." Though the book is fiction, Boykin researched it as carefully as his award winning non fiction books.

[00:01:47] His non fiction book, "One Brief Miracle," told the inside story of American diplomat Philip Khabib's mission to stop the 1982 Israeli siege of Beirut. Former Secretary of State George Shultz wrote the foreword, and the book won the American Academy of Diplomacy Book Award under its hardcover title, "Cursed is the Peacemaker."

[00:02:13] You can learn more about both books at ApplegateLLC. com.

[00:02:18] John, thanks for joining us today. I truly appreciate it. Thank you, buddy. 

[00:02:23] John Boykin: Happy to be here. 

[00:02:25] Bob Gatty: Now, the Constitution Has Expired" starts out with a young woman studying the original of the Constitution at the National Archives in Washington, D. C., and discovering, unbelievably, that Article V contained A sentence stating that the Constitution would expire a hundred years after its establishment.

[00:02:49] Something that no one had ever noticed before. Now that would mean that the Constitution as we know it is no longer in force, having expired in the mid 1800s. What would be the implications of that, John? 

[00:03:04] John Boykin: Be unthinkable. It's unimaginable what would happen. And that's exactly what made this an interesting book to write.

[00:03:11] Because I wanted to see if I could think through the unthinkable. What would happen for sure is a contest between chaos and inertia. Chaos because nobody would know what to do. And inertia because We tend to assume, Oh, we'll just muddle through. This thing has been there. The constitution has been there for so long that we have no concept of what else we would do. Who would be in charge? Are the laws still valid? Is the money still good? Are we still a country? Is it the same 50 states? It would be it would be chaos on steroids. 

[00:03:49] Bob Gatty: You say there are three key failings of the Constitution.

[00:03:53] John, what are they?

[00:03:55] John Boykin: I'll give you four. The first is quick and simple. They made it nearly impossible to amend. It's the oldest constitution, not because it's the best, but because it's virtually impossible to amend. And second is states as a unit of measurement. For most other things, voting for governor, voting for mayor, voting for propositions on the ballot, individual voters are the unit of measurement, but for the federal government, states are the unit of measurement. And I understand why they did that in 1787, but it makes no sense anymore. Wyoming has 600, 000 people. California has 40 million people. Both states get two votes in the U. S. Senate.

[00:04:45] And what we're watching in the presidential election that's going on right now is somebody's trying to win a state. Exactly. Why does it make sense to win a state? , exactly. Why should two states called Iowa and New Hampshire pretty much determine who's going to be the nominee.

[00:05:09] The Constitution sets up states as a unit of measurement. The third thing, so the first is virtually impossible to amend. The second is states as a unit of measurement. The third is political parties. You cannot talk about federal government or politics for 30 seconds without mentioning Democrats and Republicans.

[00:05:28] And yet the Constitution is absolutely stone silent. about political parties. There is not a syllable anywhere in the Constitution about political parties, what they can do, what they have to do, how they should interrelate, what their limitations are, nothing about it. Because and that's not the Founders fault when they wrote the Constitution in 1787.

[00:05:52] There was no such thing as a political party, they came along a few years later, but it's never been amended to address political parties. And the fourth thing so there's hard to amend states as a unit of measurement political parties, and the fourth is, there's no referee. What we have is a rule book for an individual sport like tennis or golf, when in fact, government is a team sport, like basketball or football, and the Constitution doesn't talk about the teams.

[00:06:27] And there's no referee. The players are free to make up the rules as they go or break them or ignore them. Probably the most notable example was four years ago when or no, I guess it was eight years ago when President Obama. Nominated a Supreme Court Justice Merrick Garland and the majority leader of the Senate, an office that does not exist in the Constitution decided, no, we're not going to take it up.

[00:06:55] Yeah. We'll just not do that. So the players get to make up the rules as they go because there's no referee. 

[00:07:02] Bob Gatty: That's an interesting point. Never thought about that. 

[00:07:07] John Boykin: We like to think that the Supreme Court is the referee. And in a certain very limited sense they are. But how long ago was the 2000 election?

[00:07:19] And the Supreme Court is only now getting around to deciding whether a foul was committed. Can you imagine a football game with no referee on the field calling fouls to happen? 

[00:07:32] Bob Gatty: Yeah. And the Supreme Court, unfortunately, has become political. It shouldn't be, but it is. 

[00:07:42] John Boykin: Oh, yeah. It's a joke. Yeah. When you can predict with about 80%, 90 percent certainty how a Supreme Court justice is going to rule on a given case, Yeah.

[00:07:54] then that's not the kind of person you should have serving on the Supreme Court. 

[00:07:57] Bob Gatty: No, exactly right. How has the Constitution been eviscerated by partisanship, do you think? 

[00:08:06] John Boykin: The founders had one piece of absolute genius and that was the idea of checks and balances. The problem is that since this was 1787, before political parties arose, there They counted on Institution A to be a check and balance on Institution B.

[00:08:27] So like the Congress and the President and the Supreme Court or the Judiciary being a check and balance as institutions. And that works fine until you introduce political parties into the mix, at which point it gets all but thrown out the window. For example was there ever any doubt That the Democrat- led House of Representative was going to impeach Donald Trump four years ago. No. Was there any, ever any doubt that the Republican Senate was going to acquit him? No. Because of the part, because their partisan allegiances took priority over any sense of checks and balances. 

[00:09:10] Bob Gatty: Yeah. Okay. Okay. Now, Section 3 of the 14th Amendment states that no person can serve in political office if they had engaged in insurrection or rebellion against the United States.

[00:09:25] Now, do you believe that should prevent Donald Trump from seeking the presidency? 

[00:09:31] John Boykin: It prevents him from occupying the presidency. And one of the tragedies of the Supreme Court ruling that came down on March 5th About his eligibility under the 14th amendment was they completely missed the point Of section three.

[00:09:47] I think March 5th marks the official formal death of the pretense of originalism that has become an article of faith among candidates or prospective nominees for the Supreme Court. They stood section three on its head. I would encourage everybody to actually read the full text of Section 3 of the 14th Amendment no, because people usually stop reading about halfway through.

[00:10:16] The most important sentence is the last sentence. Section 3 doesn't define how you determine whether somebody engaged in insurrection or not. It just assumes but the final sentence says, But Congress may by a vote of two thirds of each house remove such disability.

[00:10:35] So the text of it only addresses how to remove the disability or the ineligibility and the Supreme Court just stood that on its head by saying, oh, Congress has to basically declare that Donald Trump engaged in insurrection in order to render him ineligible, which is exactly the opposite of what it says.

[00:10:59] Bob Gatty: Is this an example of how Trump has stacked the Supreme Court in his favor? 

[00:11:04] John Boykin: Oh, absolutely. And

[00:11:06] you, the founders set up the Supreme Court justices to have lifetime tenure. The theory was that would make them independent and free them from political influence. But when Supreme Court justices are chosen precisely for their ideology, Then independence becomes academic nobody needs to put political pressure on Samuel Alito or Clarence Thomas to get them to vote a particular way on a on a particular case, from their ideology, how they're going to vote.

[00:11:46] And yeah, Donald Trump stacked it. In his favor, and they have already started serving him well.

[00:11:53] Bob Gatty: Yeah, that's for sure. All right. In your book, you're critical of both political parties. Does that mean you don't believe in the two party system? And if not, what's your solution? 

[00:12:07] John Boykin: There's no such thing as a two party system.

[00:12:09] That is a myth that has grown up over the years because we have generally had two parties and they have made sure that no third or fourth parties can get on the stage. The founders who wrote the constitution gave us a no party system because they didn't have political parties then.

[00:12:27] George Washington took office with no opposition. James Monroe was elected president with no opposition. Now, if you've heard of the era of good feelings, there was basically one political party or, more accurately, no political parties at that time. It is true that we have usually had two political parties and they have reified their stranglehold on politics, but it's profoundly harmful.

[00:12:58] All of the incentives are conducive to making people more extreme rather than more cooperative. And that's a tragedy for the country. 

[00:13:08] Bob Gatty: Yeah, that's been, that, that extremism has been growing in recent years. And I remember, I'm up in years and I worked on Capitol Hill in the 70s, in the late 70s.

[00:13:23] And I worked for both a Republican and then I worked for a Democratic member of the House of Representatives. I was chief of staff for both. And my recollection of those days is that my bosses, were able to work with members of the other party easily to reach a conclusion that really was intended at least to be in the best interest of the majority of the people.

[00:13:55] That's not the case today. They don't do that. And it's just incredible to me. 

[00:14:01] John Boykin: I think the prevailing assumption is that politicians are are in it for power. And I think that is only a part of, that's only partly true. It certainly is the case in a lot of, often, but power is only a means to an end.

[00:14:17] You want power so that you can accomplish something. You can get some kind of policy through or something. The prevailing Imperative is not really power per se, it's asses in chairs. It's how do I keep my ass in my chair? How can I get enough money to keep my ass in my chair? How can I get my ass in a better chair?

[00:14:41] That is the game. 

[00:14:43] Bob Gatty: I've never heard it put that way, but it's a fact. 

[00:14:49] Asses in chairs. 

[00:14:51] John Boykin: It's not even money. There, there's a lot of concern about bribery and the founders were concerned about bribery and bribery assumes that, oh, I politician me, I'm going to get money for something, but that's the most effective kind of bribery now is, Is not, I will give you dollar bills, but I will run ads on your behalf so that you can keep your ass in your chair.

[00:15:19] I will I will donate money to your campaign. I will do this and that, all so that you can keep your ass in your chair. 

[00:15:27] Bob Gatty: I live in Myrtle Beach, South Carolina and the ads here when Nikki Haley was up until the South Carolina Republican primary. Nikki Haley had some really good ads, I thought. And one of them was all about keeping your ass in your chair, and it was, it started chicken. And the only thing that in this ad was just a chicken going across the screen going and the voiceover said that Trump was a chicken because he wouldn't debate Nikki Haley.

[00:16:02] And of course that was her effort to keep her ass in her chair, or get her ass in the chair, yeah. Then Trump came back with a counter ad, also with a chicken, the same, the chicken looked just like Nikki Haley's chicken. And his ad was put a fork in her, because she's done. And it was just a chicken.

[00:16:28] I just thought it was a scream. 

[00:16:30] John Boykin: Absolutely every single thing about how somebody becomes president is ridiculous. Yeah. We're so used to it that we never give it a second thought. But In 1800, the political campaign, the presidential campaign between John Adams and Thomas Jefferson consisted of John Adams giving A speech.

[00:16:57] Thomas Jefferson wrote some letters. Okay. That was the presidential campaign in 1800. And now it's this massive, grotesque, obscene machine. Oh yeah. And whatever it takes to win. And by win, it's not I frankly ignore any poll that I see of national sentiment because the only sentiment that really matters is in the battleground states.

[00:17:25] I live in California. The Democrat is going to win the state of California period. Doesn't matter who it is. In Wyoming, the Republican is going to win. Doesn't matter who it is. Yeah. 

[00:17:37] Bob Gatty: And that's how it is in South Carolina too. 

[00:17:40] John Boykin: Yeah. And the value of your vote depends on where you live.

[00:17:46] And if you are a Republican in California, your vote for president quite literally does not count. If you are a Democrat, In Wyoming, your vote for president quite literally does not count. Your vote counts only if you are in a battleground state, which is defined as more or less 50 50. And that's where the candidates devote their time.

[00:18:12] The vast majority of their energy trying to get, a few more votes here or a few more votes there can tip the balance because we have this ridiculous system called winner take all 48 out of the 50 states have a winner take all system. And so if you get, I'm not sure it even has to be a majority, even a plurality you get 100 percent of the electoral votes.

[00:18:39] Why? Because the Constitution created this cockamamie thing called the Electoral College that no generation has ever had the wherewithal to abolish. 

[00:18:50] Bob Gatty: Yeah I wanted to get into the Electoral College and ask you why is it that let the voters decide is just heartwarming humbug that ignores the Electoral College.

[00:19:03] And thanks for feed me that line that. That heartwarming humbug line, I really like. 

[00:19:11] John Boykin: It's not, it's, it certainly is the way it should be. And it's heartwarming because it's the way it should be. We would all, we've all been told a thousand times, every vote counts. No, actually every vote does not count.

[00:19:23] Yeah. Unless you live in the right place. You, Bob Gatty, and I do not elect a president. A president is elected by the electoral college, which is 538 people that nobody knows who they are. Nobody knows how they got those assignments. They're not really accountable to anybody. They never meet as a total group.

[00:19:44] The electoral college. Was a last minute compromise by the founders of the Constitutional Convention. They looked at various ways that the president might take office and they didn't like any of them. But they settled on the Electoral College as as James Madison put it, as the one liable to the fewest objections.

[00:20:08] And it was explicitly, a compromise to the slave holding states. In one of his writings, I think it was Federalist 10, James Madison says in so many words, it was on account of the Negroes because they couldn't vote. In the southern states. And so if you had a straight popular vote for president, then what do you do about slaves who are not allowed to vote and do you count them in one way, but not in another way.

[00:20:38] And so the electoral college is absolutely a child of the slavery system. We managed to abolish slavery in the 1860s, but no generation has ever gotten around to abolishing its child, the electoral college, we almost did. 50 years ago was the closest we've ever come. But it got filibustered by a couple of segregationist senators.

[00:21:06] And the filibuster is not in the Constitution. We could talk about that, but the Electoral College is an abomination. And everything In the news in this election year, everything is because of this ridiculous thing called the electoral college. Subtract that and the news would be much less interesting right now. 

[00:21:29] Bob Gatty: Person you're supposed to be. I'm the person you should follow. And I think that's true. And I was here in New York on the 21st. And I live in into New York, and I'm having a great time with And they Use these electors, not the ones that are legit, but use our electors.

[00:21:52] John Boykin: Yeah, whether you like Donald Trump or you hate him, the fact is that his energies are 100 percent targeted on the electoral college.

[00:22:01] Yeah. He has made no effort. that I'm aware of, to appeal to the American people as a whole. He has made no, expressed no interest in being the president of the American people as a whole. He's very much interested in being the head of his cult of personality. The thing about to go back to the idea of let the people decide, let the people vote. If it were our decision to make who the president is, Donald Trump would never have gotten in the White House in the first place. The American people have voted against him twice. One time, enough of them lived in the right places to keep the Electoral College from handing it to them.

[00:22:42] And the first time, there were enough people living in the right places that the Electoral College did hand it to them. The only thing that makes sense is given our presidential system is a straight popular vote like we have for pretty much every other office under the sun. But You cannot, you virtually cannot amend the constitution because the founders made it so hard.

[00:23:09] Bob Gatty: That's really a good point. And if you would think that the most important office in the land would be chosen by popular vote, every other, school board members are chosen by popular vote. County commissioners are popular vote, dog catchers, if there's any place where a dog catcher is elected.

[00:23:33] It's incredible. And yet the president of the United States is elected through this cockamamie crazy system that has all these holes and doesn't really, my wife says to me, why should I vote? It's the electoral college that's going to elect this guy. Or not. Why should I vote? How do you answer that question?

[00:23:56] John Boykin: Her vote matters only if she lives in the right place. I don't have a, the list of battleground states changes over time. So I'm not sure whether South Carolina is considered a battleground state now or not. No, it's not. It's not. Okay. In that case, no, her vote does not matter. Yeah. My vote in California does not matter.

[00:24:17] If you, if however, you live in one of those battleground states like Michigan or Pennsylvania or whoever the current ones are, Georgia, then your vote counts very much because you, my friend, are voting on steroids. Yeah. Your vote counts for exponentially more than mine does. Oh, 

[00:24:33] Bob Gatty: wait a minute now, if you vote in California, your vote counts if you vote for the Democrat, right?

[00:24:40] John Boykin: Yes, but it's It is 100 percent predictable that the Democrat is going to win in California, whether I vote for him or not. 

[00:24:49] Bob Gatty: So in that camp, that Senate race, which is what Adam Schiff against now Steve Garvey, the former baseball player. Yeah. Garvey doesn't have a prayer, right? 

[00:25:00] John Boykin: No, because it's a statewide election.

[00:25:03] And the only reason it's down to those two is because the Democratic vote was split. Between Adam Schiff and I'm not trying to remember her name Katie Porter. Katie Porter would have been very good. Adam Schiff would be very good. But it split the vote. It split the Democratic vote.

[00:25:21] And Garvey got the most, quantity, got the largest vote. Quantity of votes, but that's because the Democrats are split between two in the general election. No, it's Garvey doesn't have a prayer. Okay. 

[00:25:34] Bob Gatty: Okay. That's really good to hear anyway

[00:25:38] John Boykin: Now that said not that 

[00:25:40] Bob Gatty: we want to be political here or anything like that but 

[00:25:44] John Boykin: Now that said California has sent Republicans to the Senate before, and it will again. It's just not going to happen this year. Yeah. Okay. All 

[00:25:56] Bob Gatty: How has your research into the Constitution affected your view of government dysfunction?

[00:26:02] John Boykin: It has shown me that the government dysfunction is directly attributable to the constitution. All of this dysfunction is not despite the constitution. It is because of the inadequacies of the constitution. The difficulty of of amending it, the electoral college has profoundly warped and perverted our politics from the beginning.

[00:26:28] Anyway, when I started I, when I started my research on this, I expected that it was going to deepen my appreciation for the genius of the constitution. After all that's the term that you hear all the time about the constitution. Oh, the genius of the founders, the genius of those I, much to my surprise, I would did not find very much genius in there.

[00:26:52] What I found was a lot of things that are the reason for our dysfunction today. And so I came to realize that the problem is the constitution. Now that's easy for me to say, what do you do about that? It's like a bad parent. We're stuck with it, like it or not, for better, for worse. It's what we're stuck with.

[00:27:18] So we need to make the best of it. But one of the reasons I wanted to write this book was to jar people's thinking. enough from just the myopic focus on the way things presently are to, what if it weren't that way? What if it were some other way? Suppose we did this instead of that.

[00:27:37] Suppose we did things this way instead of that way. And, I don't imagine that my book is going to be the blueprint for, the next constitution of the United States, although it should be. 

[00:27:48] Bob Gatty: But I think it 

[00:27:49] John Boykin: should be. But I hope that smarter political minds than mine will take it and come up with better ideas than I came up with.

[00:28:01] Bob Gatty: Yeah, okay. I want to talk a little bit more about your book. Now the subtitle is a novel, really, probably. What the hell is that all about? 

[00:28:12] John Boykin: When I have gone to parties and gatherings and talked to people about, I'm writing this book called The Constitution Has Expired, invariably, somebody over there will say, it has.

[00:28:24] And I, I have to say, it's a novel, it really hasn't but so I felt like I needed to say it's a novel, but the more I researched it, the more plausible it became. I thought I was, having the constitution expire, I thought that was this crazy idea that I pulled out of thin air. And I did, but as it turns out if it had expired, if there had been an expiration clause built into it, we would not be at all surprised.

[00:28:56] It would be completely consistent with other things that were known about it back then. For example, Jefferson, I think he quoted That said that it should last and only until the last founder died Washington said in so many words, I don't expect it to last more than two, more than 20 years.

[00:29:17] The, this, the constitution was written in 1787, the declaration of independence. was only 11 years earlier. The Articles of Confederation, which was the previous equivalent of a constitution, was only six years old. The oldest state constitution, at that point, was only 13 years old. So there's no reason to think that the founders imagined That this thing was going to last forever.

[00:29:48] They had no more crystal ball than you and I did we treat them as though they had the, they were these glorious visionaries. They did have a lot of theories. Of if we do this, then that'll be incentive for that to happen. And they were right about some of them and they were dead wrong about others.

[00:30:07] And they disagreed about those all the time. The fact that they wound up settling on this theory instead of that theory doesn't mean that it was right. It's just a compromise they made. 

[00:30:17] Bob Gatty: You picked the idea of. Of having this young girl who I guess she had some kind of hyperlexia.

[00:30:26] Yeah. Is that what it was? Hyper, hyperlexia. At any rate she was really smart. She focused on On this, she read the original while she was standing there with people all around her trying to get her to move and everything and she spotted this sentence that said that the Constitution would expire a hundred years after it was written.

[00:30:53] Enacted. Yeah. And no one had ever seen that before. How did you come up with the idea of using somebody like her to set the stage for this whole thing? 

[00:31:10] John Boykin: The idea of the discrepancy between the handwritten constitution that the founders actually signed and the printed one that people have been reading ever since, that was at the beginning of the concept.

[00:31:22] The fact is that there were, if you're familiar with the term version control it's a big problem in the technology world. I can promise you. There was a there was a calligrapher who was writing the text of the Constitution by hand on parchment for the founders to actually sign with quill pen and ink. There was also a printer who was doing a printed copy that would they would have to take home with them. The minute they signed, the Constitution parchment, it got rolled up and put in a dark closet, and it stayed in various dark closets for 137 years. Nobody ever compared the two, after the Constitutional Convention adjourned, nobody ever sat down and compared the two. And my idea was, suppose they had put it into the original parchment that they signed, and through some kind of oversight, it just didn't make it into the printed one. And so that's the idea. That's the scenario that is the premise for the whole book.

[00:32:28] And a good chunk of the book is dedicated to teasing out how that could actually happen. And I needed it to be plausible. And the best way I know to make something plausible is to make it actual. And so I researched all of this very carefully, down to the smell of the ink that the calligrapher used.

[00:32:51] And if it's I certainly took liberties with the facts, but it's very plausible this could have happened. Yeah. And so I just play out, okay, what if 

[00:33:02] Bob Gatty: it hadn't? I think it's a remarkable thing that, that you take a concept like that and turn it into a novel, really based on you can't say based on fact, but based on what could be fact.

[00:33:19] And I found it to be extremely well done and interesting and highly recommend you guys if you can pick this book up, you should. And that reminds me, where can people find it? 

[00:33:32] John Boykin: It's on Amazon right now. There's information about it at constitution novel. com. If you go into Amazon and look for the Constitution has expired.

[00:33:44] It's there as paperback as an e book and as an audio 

[00:33:50] Bob Gatty: book. 

[00:33:50] Yeah, you just did the audio book, right? 

[00:33:53] John Boykin: It will be on other places later, but right now it's only on Amazon. 

[00:33:56] Bob Gatty: Okay, excellent. And the book was published 1st of March, 

[00:34:00] John Boykin: right? Yes. So it's brand new out. Yeah. 

[00:34:04] Bob Gatty: Okay. Alright like I said, guys, if you can have a chance check it out and pick it up.

[00:34:09] If you're interested in history, if you're interested in current affairs, if you're interested in politics all those things check it out. So have you got anything else you'd like to add, John? 

[00:34:20] John Boykin: Yeah, I would just add that this is not a civics lesson. Yeah. The book is not it's not a political screed, it's not a civics lesson it deals with government and politics, but it's a novel, and a novelist's first job is to entertain.

[00:34:37] Yeah. And if you don't write an entertaining story, then nothing else matters. Yeah. Now, it so happens that there are some real significant issues that the book touches on. But the news is not a civics lesson in government. The news is stories. And so this is very, this book, The Constitution Has Expired, is very much a a story of characters grappling with an unthinkable crisis.

[00:35:04] And how did he do it? How did he work through it? What did they come up with? Why that? And that's, that was the fun of writing it. And frankly, for me, it was an escape from the real world of all the horrible things going on in, in government and politics today. This was for me very much an escape into, call it a fantasy, but it's it's Grounded in fact, in reality.

[00:35:35] Bob Gatty: Okay. John, thanks so much for joining us on the Lean to Lift podcast. I really did enjoy talking to you about this. And as I said before, you guys pick this book up. It's well worth your time. It's a good book. Thanks. 

[00:35:50] John Boykin: Thank you, Bob.