Earlier this year, the National Constitution Center commissioned a constitution drafting project, with teams of constitutional scholars tasked with creating a new U.S. Constitution, or updating the existing one, according to libertarian, progressive, and conservative visions, respectively. In addition to the actual draft constitutions, we each submitted explanatory essays that summarized our approaches and noted key innovations. Here's a summary of what we did, followed by some concluding thoughts about this experience. (Full disclosure: The project was suggested and underwritten by Cato board member Jeff Yass.)
I led Team Liberty (as we called ourselves), joined by Tim Sandefur of the Goldwater Institute (and a Cato adjunct scholar) and Christina Mulligan of Brooklyn Law School. This was probably an easier project for us than for our counterparts because the current Constitution is fundamentally a libertarian or, more precisely, classical liberal document. So much so that, at the outset, we joked that all we needed to do was to add and we mean it at the end of every clause. As we put in our introduction, however
many parts of our fundamentally libertarian constitution, particularly those that limit federal power, have been more often ignored, or cleverly evaded, than honored, especially by court decisions that have perverted the actual meaning of the documents text. Our task was therefore largely to clarify and sharpen those provisionsmost notably the Commerce Clause, which has been transformed by legal interpretation into a charter of expansive federal power far beyond what the framers envisioned.
Of course, there have been some developments in the 230 years since the original Constitution and Bill of Rights took effect and the 150 years since the post-Civil War amendments were ratified, that have demonstrated certain deficiencies from a libertarian perspective. Out-of-control spending necessitates a balanced budget requirement (except in emergencies). Todays imperial presidency militates for a reweighing of checks and balances. We also couldnt help but add in a few and we mean it provisions just to be safe, as well as certain liberty-enhancing reforms suggested by such scholars as Randy Barnett and Milton Friedman.
We also circumscribed executive power (as did the other groups in certain ways), including by allowing for impeachment of federal officials for "behavior that renders them unfit for office." We made sure that Congress couldn't coerce the states -- the states are allowed to choose block grants instead of federal funding with regulatory strings -- while a supermajority of the states can reverse a federal law or regulation. And we strengthened or made more explicit what we now consider to be protections under the First, Second, Fourth, Fifth, and Sixth Amendments, as well as -- my favorite -- protecting the right to the fruits of ones labors and adding a catch-all right to live a peaceful life of ones choosing. You can read our constitution here.
Team Progressive was led by Caroline Fredrickson of the Brennan Center for Justice (and former head of the American Constitution Society) and included Jamal Greene of Columbia Law School and Melissa Murray of NYU School of Law. Not surprisingly, this team emphasized democracy and equality, while pushing back against the idea that the current Constitution is antithetical to progressive government. In what was a surprise to me, however, they added very few positive rights or entitlements. As these scholars wrote in their introduction:
the original Constitution establishes a structure of divided government that is a necessary precondition for a constitutional democracy with robust protections for individual rights. Accordingly, we took this exercise as an opportunity to strengthen those structural protections for democratic government that we believe serve the exercise of individual rights. . . . We believe that embedding democracy more effectively in our Constitution will better protect rights than an explicit description of each and every right.
As progressives, we believe in democracy rather than government by judiciary, and that is why we have approached the document in this fashion. At the heart of our progressive Constitution is an accountable and inclusive political process.
The Progressives added an explicit right to vote, eliminated the Electoral College, and made the Senate more democratic. They also allowed for the regulation of political contributions, gave Congress greater oversight authority over the executive branch, and added Supreme Court term limits. And they extend what we now think of as equal protection without regard to "sex, sexual orientation, performance of sexual or gender identity, sexual preference, or pregnancy, childbirth, and all attendant conditions, including the decision to become pregnant or terminate a pregnancy." Amazingly, they also subject our rights and freedoms "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" because rights should "be limited to a certain extent in order to promote other democratic values, including the exercise of other rights and the public good." You can read the progressive constitution here.
Team Conservative was led by Ilan Wurman of Arizona State University College of Law and included Robert P. George of Princeton University, Michael McConnell of Stanford Law School (and former Tenth Circuit judge), and Colleen A. Sheehan of Arizona State University. This team focused on strengthening Madisonian deliberation to "serve justice and the common good." As these scholars wrote in their introduction,
we still confront the perennial conundrums of popular government, of which the problem of faction yet constitutes the disease most incident to republican government, as Madison warned. Simplistic adherence to pure democracy, unleavened by constitutional checks and balances, is therefore still undesirable. . . .
Many of our proposed changes are designed to enable elected officials to break free of the grip of faction and once again to deliberate, with the aim of listening attentively to, as well as educating, public opinion, and promoting justice and the public good. To the conservative mind, self-government is simply not the same thing as democracy or democratic accountability. It is government by reflection and choice, ultimately responsible to the people themselves, but refined and enlarged through mediating institutions and the processes of deliberative republicanism.
The Conservatives shrunk the Senate (one member per state) to allow better deliberation, while limiting senators to one nine-year term and requiring them to swear an oath "to promote the common good and long-term welfare of the nation and not the interests of any party or class." They also limited presidents to one six-year term, to provide incentive for statesmanship over politicking, and changed presidential selection to a system whereby state legislatures nominate candidates and the public selects among them by ranked-choice voting. They would also term-limit the Supreme Court, while fixing the number of justices at nine. They conclude that "a republican constitution itself rests on a still higher authority. . . . the natural law, whose principles ground our Constitution and bind us together in a cause that justifies our civic association and makes worthy our civic life." You can read the conservative constitution here.
* * *
There's some commonality among the three -- for example on restricting executive power and providing for the voting rights of D.C. residents (accomplished in very different ways) -- but plenty of differences. What surprised me most about this project was how Teams Progressive and Conservative both focused on issues that Team Liberty considered to be "good government" reforms without clear libertarian salience. Wedebated adding term limits for members of Congress and Supreme Court justices, but decided not to include them because evidence from the states shows no correlation between term limits and liberty-protecting limited government. Same thing for expanding the size of the House and of the Court; these sorts of reforms might be worth considering -- perhaps they make politics less polarized, perhaps they dont -- but thats more of a political-science academic project than what were doing here.
I found it striking that Teams Progressive and Conservative both focused on structural changes, the former on democratization, the latter on republicanization. I wouldve expected both to be much more rights-centered, but maybe thats my own libertarian projection! Maybe its good to know that everyone accepts the basic limited-government, rights-centered model, though the devil is in the details of "democratic values" and "the common good."
Here's a recording of the zoom presentation of the libertarian and progressive constitutions. And here's a podcast with the captains of all three teams (myself included). Finally, here are snazzy pdfs of the Libertarian, Progressive, and Conservative constitutions alongside their explanatory essays.
Read more from the original source:
- Letter to the editor: Thoughts on Charen, Biden, race relations, military - TribLIVE - May 1st, 2021
- Editorial: On women in office, we're still only getting there - Plattsburgh Press Republican - May 1st, 2021
- Top elections official admits fundraising error - The Herald - May 1st, 2021
- Bring civility back to politics -- and to life in general - darnews.com - May 1st, 2021
- McNeely: McConaughey for governor? | Opinion | news-journal.com - Longview News-Journal - April 29th, 2021
- Candidates seeking 48th Senatorial District seat put their differences on display - PennLive - April 23rd, 2021
- Pellerin: Don't flout COVID rules in the name of 'freedom' - London Free Press (Blogs) - April 21st, 2021
- N. Quabbin represented at political state convention, as growing third-party marks 50th anniversary - Athol Daily News - March 26th, 2021
- Humility Is Where Conservatives And Libertarians Can Still Find Fusion - The Federalist - March 26th, 2021
- Former state Rep. Jeff Pyle's staffer wins GOP nomination for special election, Dems choose Thursday night - TribLIVE - March 26th, 2021
- Libertarian Students Convention | Mises Institute - The Shepherd of the Hills Gazette - March 26th, 2021
- March 25, 2021, Letters to the Editor | Serving Minden-Gardnerville and Carson Valley - The Record-Courier - March 26th, 2021
- Where 'freedom' meets the far right: the hate messages infiltrating Australian anti-lockdown protests - The Guardian - March 26th, 2021
- What's on the March 20 ballot? Baton Rouge residents will vote on these congressional, local races - The Advocate - March 25th, 2021
- Were the Capitol Rioters Really Libertarians? - Foundation for Economic Education - January 29th, 2021
- A Florida Senator Wants to Exclude People With Felony Convictions from the State's Minimum Wage Increase - The Appeal - January 29th, 2021
- A new Chatham Elections Board member was sworn in last week. This week, she resigned. - Savannah Morning News - January 29th, 2021
- The political beliefs of the Class of 2024 by race, gender and other factors - Duke Chronicle - January 29th, 2021
- Livorno, the Rebel City Where Italy's Communist Party Was Born - Jacobin magazine - January 29th, 2021
- HB79 Allowing Minor Party Members To Vote In Primaries Passes Government, Elections And Indian Affairs Committee - Los Alamos Daily Post - January 29th, 2021
- Mostly libertarian demonstration gathered outside of closed, guarded Texas Capitol Sunday - WJTV - January 23rd, 2021
- Groups across Texas head to Texas Capitol for "mostly libertarian" demonstration - ArkLaTexHomepage - January 23rd, 2021
- Wikipedia 20th anniversary | The libertarian internet dinosaur has become the worlds largest encyclopedia - Inspired Traveler - January 17th, 2021
- Marshawn Wolley: Like the tea party, Trumpism will die - Indianapolis Business Journal - January 17th, 2021
- How the right claimed liberty and made it a toxic word - New Statesman - January 17th, 2021
- What is a libertarian? | Libertarianism.org - January 9th, 2021
- 5 things the Libertarian Party stands for | TheHill - January 9th, 2021
- We all bear the responsibility to come together - Williston Daily Herald - January 9th, 2021
- The Libertarian Alternative | Cato @ Liberty - Cato Institute - January 7th, 2021
- Libertarian and Green parties cry foul over ballot change - Niagara Gazette - January 7th, 2021
- Libertarian, Green parties file injunction in lawsuit aimed at state efforts to quell third parties - The Daily News Online - January 7th, 2021
- Yellow Gadsden flag, prominent in Capitol takeover, carries a long and shifting history - The Conversation US - January 7th, 2021
- 17,000 Onondaga County voters have a decision to make: Should I enroll in another party? - syracuse.com - January 7th, 2021
- Sue Lani Madsen: End this madness of brother against brother - The Spokesman-Review - January 7th, 2021
- What everyone needs to know about 2020 | OUPblog - OUPblog - January 7th, 2021
- Boris Johnson's lockdown rebels have gone quiet. But it won't be for long - The Guardian - January 7th, 2021
- Letter: Libertarian Party has the answers - Times Herald-Record - December 6th, 2020
- Libertarian Ron Paul: Legalize Bitcoin and Abolish the IRS - Decrypt - December 6th, 2020
- Why conservatives in the US today are really libertarians - Business Insider - Business Insider - December 6th, 2020
- Be Cool Like Kennedy! Donate to Reason, and Help Us Spread #HotFreedom - Reason - December 6th, 2020
- The Libertarian Argument Is the Best Argument Against Immunity Passports. But is it good enough? - Practical Ethics - December 6th, 2020
- From Libertarians To Nationalists, Millennials Are Shaping The New Right - The Federalist - December 6th, 2020
- Pinecone: The fringe political party saving the youth from political nihilism in Georgia - New Eastern Europe - December 6th, 2020
- 'We're Gonna Need a Bigger Website' - Reason - December 6th, 2020
- The Trials and Tribulations of Third-Party Candidates - University of Georgia - December 6th, 2020
- A record 3 million Hoosiers voted in the 2020 election - IndyStar - November 29th, 2020
- Final thoughts on the election - The Republic - November 29th, 2020
- Cobb County and the 2020 General Election: Part 1 - Cobb County Courier - November 29th, 2020
- Charles Koch and Brian Hooks: Believe in People - Reason - November 29th, 2020
- By the Numbers: Local communities were Biden country in Nov. 3 election - Reporter Newspapers - November 29th, 2020
- Opinion: Please don't let me bleed to death in the street - easternnewmexiconews.com - November 29th, 2020
- The Libertarian Moment That Never Comes - The New Republic - November 7th, 2020
- Meet Marshall Burt, Who's About To Become the Libertarian Party's Only Sitting State Legislator - Reason - November 7th, 2020
- Libertarian U.S. Senate candidate puts a wedge in a race that is too close to call - WCNC.com - November 7th, 2020
- Newly Launched Chicago Thinker Aims to Promote Conservative and Libertarian Views on Campus - The Chicago Maroon - November 7th, 2020
- Maybe Jo Jorgensen Finishing With 1% Would Actually Be Pretty Good? - Reason - November 7th, 2020
- Libertarian candidates share conversation and coffee - The Wellsboro Gazette - November 7th, 2020
- Cotton win good news, say parties of two rivals - Arkansas Online - November 7th, 2020
- Libertarian Free Will and the Kalam, Revisited | Jonathan MS Pearce - Patheos - August 17th, 2020
- Floating Cities and Sea-Level Rise - an unsinkable idea - Anthropoce - August 17th, 2020
- When Joe Biden Tried To Paint Clarence Thomas as a Crazy Libertarian - Reason - July 31st, 2020
- Libertarian Assembly candidate calls for line item veto to rein in spending, elimination of property taxes and more to get rid of 'tyranny' and bloat... - July 31st, 2020
- OPINION EXCHANGE | The last days of the tech emperors? - Minneapolis Star Tribune - July 31st, 2020
- Buchanan and Anarchism | Mises Wire - The Shepherd of the Hills Gazette - July 31st, 2020
- Trump Wanted To 'Throw Massie Out of Republican Party!' but the Libertarian-Leaning Congressman Just Won His Primary Anyway - Reason - June 24th, 2020
- Google's warning against the Federalist is why libertarians will lose fight over Big Tech - Washington Examiner - June 24th, 2020
- Texas-based conservative group funding 'green' PAC in MT - KTVH - June 24th, 2020
- Non-mask wearing fools - The Real Nurse Jackie - McKnight's Long Term Care News - June 24th, 2020
- Morelle with big lead over Wilt but absentee votes still to be tallied - WXXI News - June 24th, 2020
- Lockdown easing analysis: Boris Johnson's libertarian instincts returned... and he went further than anyone really expected - Evening Standard - June 24th, 2020
- How a fringe sect from the 1980s influenced No 10's attitude to racism - The Guardian - June 24th, 2020
- Radley Balko on George Floyd, Breonna Taylor, and the Libertarian Case for Criminal Justice Reform - Reason - June 17th, 2020
- While pro-marijuana parties thrive, other minor parties struggle - Southernminn.com - June 17th, 2020
- Letters: 'It is suggested that Boris's Libertarian beliefs were the reasons for delayed Lockdown' - The Northern Echo - June 17th, 2020
- OPINION EXCHANGE | At the center of that Supreme Court ruling were people - Minneapolis Star Tribune - June 17th, 2020
- The other Jo, wants your 2020 vote, if youre fed up with the two-party system or if youre not - WIZM NEWS - June 17th, 2020
- 'Where Are Libertarians on Police Reform?' Right Where We've Always Been. - Reason - June 13th, 2020
- Protests: Meet the Romney-Gary Johnson-Bloomberg voter embracing Black Lives Matter - Vox.com - June 13th, 2020
- What the Pandemic Revealed - Niskanen Center - June 13th, 2020
- Santa Cruz Shooting Suspect Preached Libertarian Ideals, Was Pushed Over the Edge By Police Actions Against Protesters, Friends Say - SFist - June 13th, 2020