What If We Wrote the Constitution Today?
Proposals from libertarian, conservative, and progressive scholars displayed a few striking differences-but also some profound similarities. About the author: Jeffrey Rosen is a contributing writer for The Atlantic, President & CEO of the National Constitution Center, and a law professor at George Washington University.
The results surprised us. As expected, each of the three teams highlights different values: The team of conservatives emphasizes Madisonian deliberation; the progressives, democracy and equality; and the libertarians, unsurprisingly, liberty. But when the groups delivered their Constitutions—which are published here—all three proposed to reform the current Constitution rather than abolish it.
All three teams agree on the need to limit presidential power, explicitly allow presidential impeachments for non-criminal behavior, and strengthen Congress’s oversight powers of the president.
Progressives emphasize equality and "progressive constitutionalism" and would make the Senate more representative.
Their proposed Progressive Constitution would also codify judicial and legislative protections for reproductive rights and against discrimination based on gender, sexual orientation, gender identity, pregnancy, and childbirth.
What about the libertarians?
The authors of the proposed Libertarian Constitution—Ilya Shapiro of the Cato Institute, Timothy Sandefur of the Goldwater Institute, and Christina Mulligan of Brooklyn Law School—emphasize their intent to clarify the original Constitution, not replace it. “At the outset,” they write, “we joked that all we needed to do was to add ‘and we mean it’ at the end of every clause.” Their particular focus is resurrecting limitations on the commerce clause. Since the New Deal era, the Supreme Court has interpreted the commerce clause to grant Congress essentially unlimited power to regulate anything that might have a tangential effect on interstate commerce. The libertarians would allow regulation only of actual interstate commerce, not of noncommercial activity that takes place within one state. They would also limit federal power in other ways, requiring all federal regulations to be related to powers enumerated in the Constitution and prohibiting the federal government from using its powers of the purse to influence state policies. Like the conservative team, the libertarians would return the selection of senators to the states, in the hope of promoting federalism. The libertarians also include a series of other restrictions on state and federal power to protect economic liberty, such as limiting the states from passing rent-control or price-control laws, prohibiting the states and the federal government from subsidizing corporations, providing for a rescission of national laws by a two-thirds vote of the states, and requiring a balanced federal budget.
The Libertarian Constitution: Expand Grounds for Impeachment
After all, the Constitution set out a government of limited and enumerated powers, powers divided both "horizontally" among the three branches of the federal government and "vertically" in a federalist system that recognizes, while limiting, the sovereignty of states, in order to protect "the blessings of liberty."
Following Gene Healy, they would rewrite the impeachment clause to read:
Rewrite: The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, other high crimes and misdemeanors, or other behavior that renders them unfit for office.
IN other words, make it easier to impeach.
Thoughts on the National Constitution Center's "Constitution Drafting Project"
The National Constitution Center recently conducted a fascinating exercise in which it named three groups to produce their own revised versions of the Constitution: a conservative team, a libertarian team, and a progressive one. Each team included prominent scholars and legal commentators affiliated with their respective camps.
On immigration, we call our version the Ellis Island Clause: restoring our immigration policy to what it was until about 100 years ago. We would allow anyone to come to try to make their American Dream provided that person isn’t a terrorist or criminal, and doesn’t have a contagious disease.
Videos & Podcasts
The Constitution Drafting Project
The National Constitution Center's Constitution Drafting Project brought together three teams of leading constitutional scholars-team libertarian, team progressive, and team conservative-to draft and present their ideal constitutions.
Ilya Shapiro: we, make explicit that the General Welfare Clause is a limitation, not a grant of power, that is it refers to the general as opposed to the parochial or specific, welfare. We sharpen the Necessary and Proper Clause to only allow laws incidental to the enumerated powers, not wholly new ones in kind of an endless string of knee bone connected to the shin bone reasoning that today's legal precedents, allow.
Ilya Shapiro and Timothy Sandefur participate in the webinar, "The Constitution Drafting Project: Libertarian and Progressive Constitutions," hosted by the National Constitution Center
October 1, 2020
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates important cases for economic liberty, private property rights, free speech, and other matters in states across the country.
Timothy is the author of several books, including Frederick Douglass: Self-Made Man (2018), Cornerstone of Liberty: Property Rights in 21st Century America (co-authored with Christina Sandefur, 2016), The Permission Society (2016), The Conscience of The Constitution (2014), and The Right to Earn A Living (2010), as well as more than 50 scholarly articles on subjects ranging from Indian law and antitrust to copyright law, the constitutional issues involved in the Civil War, and the political philosophy of Shakespeare, ancient Greek drama, and Star Trek. A frequent guest on radio and television, he is well known to radio audiences as “Tim the Lawyer” on the Armstrong and Getty Program, and his writings have appeared in Reason, National Review, the Claremont Review of Books, The Weekly Standard, The Wall Street Journal, The San Francisco Chronicle, and The Objective Standard, where he is a contributing editor. He teaches public interest litigation at George Mason University’s Antonin Scalia Law School.
He is an Adjunct Scholar with the Cato Institute and is a graduate of Hillsdale College and Chapman University School of Law.
The Goldwater Institute is a leading free-market public policy research and litigation organization that is dedicated to empowering all Americans to live freer, happier lives. We accomplish real results for liberty by working in state courts, legislatures, and communities nationwide to advance, defend, and strengthen the freedom guaranteed by the constitutions of the United States and the fifty states.
Founded in 1988 in Arizona with Senator Barry Goldwater’s blessing, the Institute focuses on advancing the principles of limited government, economic freedom, and individual liberty, with a focus on education, free speech, healthcare, equal protection, property rights, occupational licensing, and constitutional limits.
The U.S. Constitution provides a basic minimum of protection for individual rights, while leaving states free to enact laws that protect those rights more broadly. That’s why we direct our efforts at the states, the “laboratories of democracy,” to introduce innovative ideas that expand freedom. And that’s why we litigate in state courts to defend individual liberty.