The National Constitutional Center recently conducted a fascinating exercise in which three groups were named to create their own revised versions of the Constitution: a conservative team, a libertarian team, and a progressive. Each team included prominent scholars and legal commentators associated with their respective camps. Here is the list of participants:
Team libertarian was led by Ilya Shapiro of the Cato Institute and included Timothy Sandefur of the Goldwater Institute and Christina Mulligan Brooklyn Law School. Team Progressive was led by Caroline Fredrickson of Georgetown Law School and included Jamal Greene Columbia Law School and Melissa Murray from New York University School of Law. Team was led by conservative Ilan Wurman from Arizona State University College of Law and included Robert P. George Princeton University, Michael McConnell Stanford Law School and Colleen A. Sheehan from Arizona State University.
It is perhaps worth noting that Caroline Frederickson is the former president of the American Constitution Society (liberal counterpart to the Federalist Society) and that libertarian team leader Ilya Shapiro is a different person from me.
Each team prepared a revised version of the constitution and an introduction that explained the changes they had made from the status quo. The progressive constitution and introduction are available here, the conservative versions are here, and the libertarian versions are here.
There are important – and often unsurprising – differences between the three teams. But there are also notable points of convergence. NCC President Jeffrey Rosen summarizes some of these in an Atlantic article on the project:
The results surprised us. As expected, each of the three teams emphasizes different values: the Conservative team emphasizes Madison’s reasoning; the progressives, democracy and equality; and the libertarians, not surprisingly, freedom. However, when the groups submitted their published constitutions, all three proposed reforming the current constitution rather than abolishing it.
Even more unexpectedly, they converge in several of their proposed reforms, focusing on structural constraints on executive power rather than the creation of new rights. All three teams agree on the need to limit the power of the president, to explicitly allow impeachments of the president for non-criminal conduct and to strengthen the powers of congress over the president. And in particular, the progressive and conservative teams are converging on the need to elect the president by a national referendum (the libertarians keep the electoral college). revive the ability of Congress to veto executive action by majority vote; and set 18-year term limits for Supreme Court judges. The unexpected areas of settlement suggest that amid the current political polarization of the country, there may be a deep, unappreciated consensus on constitutional principles and reforms needed.
As Rosen points out, the libertarian team could well agree on an 18-year term for Supreme Court justices, which they removed from their draft constitution for tactical reasons (because they wanted to focus on specifically libertarian as opposed to generic ones Elsewhere, team leader Ilya Shapiro has endorsed the idea and has considerable support from other libertarian lawyers and commentators (myself included).
In addition to the points of convergence highlighted by Rosen, it should be noted that all three teams would abolish the eleventh amendment, construed by the Supreme Court as giving states broad “sovereign immunity” from a wide variety of constitutional and legal actions by private citizens. The Conservative Constitution, I believe, does best if it suggests replacing sovereign immunity with an explicit statement that “neither the United States nor any state may enjoy immunity from the courts of the United States.”
Another point of agreement is that all three teams would abolish the requirement that the president be a “naturally born” citizen, which would allow immigrants to hold the highest political office in the country. This has also long been my own view.
It is too early to say that these areas of agreement can lead to successful constitutional changes. The barriers to major changes being passed are high and the views of the three teams are not fully representative of their respective political camps. Still, the points of convergence between the three teams are at least plausible candidates for change initiatives that deserve serious consideration.
All three proposed designs contain useful ideas, except for those where there is convergence. The Conservative and Libertarian Constitutions contain valuable (albeit different) restrictions on federal spending. The Conservative version also avoids the packing of courts by setting the number of judges at nine and suggests an election method for the presidency that could be an improvement on the status quo.
The progressive constitution contains thoughtful proposals to prevent gerrymandering by requiring legislative districts to be drawn by independent commissions, banning discrimination based on gender and sexual orientation, and protecting secular practices of conscience on the same basis as free worship. Interestingly, the progressive writers have chosen not to follow the lead of left-liberal constitutions in other countries by including a number of “positive” welfare rights in their draft (a decision I recommend, although some of their ideological allies may disagree).
Perhaps not surprisingly, I most agree with the libertarian draft constitution. In fact, I agree with the work of this team even more than I expected based on what I previously knew about their views.
I particularly recommend their “Ellis Island Clause” (which would remove most federal immigration restrictions, bringing us back to something that is in keeping with the original meaning of the present Constitution as it is understood by Madison and others) as protecting the Fifth Amendment for and expands property rights and the amendment of the thirteenth amendment to include an explicit prohibition on military draft and other state-imposed forms of compulsory service. I defended the latter idea in my 2018 testimony before the National Commission on Military, National and Public Service.
I am disappointed that none of the three teams – not even the libertarians – have thought of curtailing the almost unlimited power of Congress to restrict international trade, the damage of which has been aggravated by ill-advised laws that give the President the power to almost tariffs to collect all goods manufactured abroad that he may wish to target. This issue is high on my list of “things I hate about the Constitution” – areas where even the most correct interpretation of the present Constitution produces poor results. The libertarian draft contains useful provisions that guide the Supreme Court’s expansive interpretations of the power of Congress to regulate international trade, but it does not address the power to regulate international trade, which is subject to many of the same abuses.
Of course, I also differ on various issues with the teams, especially with the conservatives and progressives. I oppose the Progressives’ proposals to exclude a wide range of campaign funding restrictions from the First Amendment, and their plan to give Congress a new power to “legislate for the common good, if such measures are necessary to nationalize.” Address problems. ” Scope and is unlikely to be adequately addressed by state or local governments. “I also find it worrying that your proposal (inspired by the Canadian Charter of Rights and Freedoms, I believe) creates a general exemption from all constitutional rights for legislation” such reasonable limits as required by law and in a free and democratic manner Society are demonstrably justified. “I fear that this provision will exacerbate the already problematic tendency of courts and lawmakers to work out exceptions to constitutional rights, especially if they do not particularly like the law in question, if the legislation in question suits their ideological bias or a combination of both.
When it comes to the Conservative Constitution, I am not convinced of your elaborate Senate restructuring proposal or your endorsement of Alexander Hamilton’s approach to purchasing power over James Madison. I think Madison’s more limited view (largely endorsed by the libertarian team) is preferable.
While I have little disagreement with the amendments made by the libertarian drafters, I believe they were wrong in abandoning the seventeenth amendment which directly elected the Senate rather than being elected by state legislatures. The team probably rightly believes that removing the seventeenth amendment would likely not change significantly, as most state legislatures would delegate the selection of senators to the referendum anyway. With the exception of a few states, this had already happened before the seventeenth amendment came into force. But if little changes and that is not an improvement, I see no reason to change the current rule at all. I discussed this topic at length in a 2011 debate with co-blogger Todd Zywicki.
Much more can be said about the suggestions made by all three teams. What I cover above just scratches the surface of the many interesting ideas and problems that they pose.
I doubt that these proposals will actually take effect anytime soon. Even the ideas that the three teams agree on would face an uphill battle in the constitutional change process. It is clear, however, that at least some aspects of the Constitution need reform. The National Constitution Center and its three teams have made valuable contributions to the discussion of these issues. I hope others can build on it!
UPDATE: I updated this post to include the point that all three teams would remove the requirement that the president be a “naturally born” citizen. I have defended this position myself in various writings, most recently in a USA Today article co-authored with Harvard law professor Randall Kennedy.