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