Constitution Drafting project highlights areas of potential consensus on constitutional reform

The National Constitution Center recently conducted a fascinating exercise in which it brought together 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. The results revealed substantially more convergence on key issues than might have been expected in our highly polarized times.

There are important and often unsurprising differences between the three groups. But there are also several notable points of agreement that could potentially serve as the basis for a program of constitutional reform that might have a real chance of being enacted.

All three teams agreed that the 1787 Constitution should be revised rather than totally superseded, that there should be tighter limits on presidential power, that the state and federal governments should be stripped of much, if not all, of their “sovereign immunity” from lawsuits, and that immigrants should be eligible for the presidency. It is also likely that the three teams agree on the need for term limits for Supreme Court justices, though the libertarians did not actually include this idea in their proposed constitution.

The participants are all prominent constitutional law scholars and commentators. The libertarian team was led by Ilya Shapiro of the Cato Institute, the nation’s leading libertarian think tank, and included Timothy Sandefur of the Goldwater Institute and Christina Mulligan of Brooklyn Law School.  I should perhaps note that Shapiro is a different person from me, though we often get confused with each other . The progressive group was headed by Caroline Fredrickson of Georgetown and included Jamal Greene of Columbia Law School and Melissa Murray of New York University School of Law. Caroline Fredrickson is the former president of the American Constitution Society (liberal counterpart to the Federalist Society). The conservatives were 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 (a prominent former federal judge), and Colleen A. Sheehan of Arizona State University.

Each team produced a rewritten version of the Constitution, and an introduction explaining the changes they made from the status quo. The Progressive Constitution and Introduction are available here, the conservative versions are here, and the libertarian ones here.

NCC President Jeffrey Rosen summarized some of the key similarities between the three drafts in an Atlantic article on the project. As he recognized, agreement on preserving the basic framework of the 1787 Constitution, with its federalism and separation of powers, is significant. Critics of the Constitution have long argued that the US would be better off with a parliamentary system, a unitary state, or some combination of both. It is notable that all three groups rejected such ideas. Another noteworthy point of convergence in favor of the status quo is that none of the three teams would introduce any significant new “positive” rights to various kinds of government benefits, of the sort common in many European constitutions. Interestingly, the progressive drafters deliberately chose not to follow the example of left-liberal constitutional drafters in many other countries on this point (a decision I commend, though some of their ideological allies might not agree).

Even more notable is agreement on several key reforms, most notably the need to limit presidential power. Recent history, including dubious power grabs by presidents of both parties, have persuaded most constitutional experts across the political spectrum that the current system concentrates too much power in the hands of a single person.

All three proposals would allow Congress impeach and remove the president for abuses of power that fall short of being federal crimes, thereby resolving a longstanding ambiguity in the current Constitution. The progressive and conservative constitutions make it easier to convict presidents, by reducing the supermajority needed to convict in the Senate from two-thirds (67 of 100 votes) to three-fifths (60); though both also impose a similar requirement for impeachment in the House.

All three drafts also strengthen congressional oversight of the executive branch and reduce presidential control over federal spending and regulation. The three teams pursue these goals by different means. The conservatives propose a variety of measures for directly strengthening congressional oversight of spending and tying it more closely to taxation. The libertarians would impose tight limits on the purposes for which funds can be spent, allow “taxpayer standing” for lawsuits challenging misuses of public funds. Both conservatives and libertarians include provisions imposing tight constraints on presidential power to make law by executive order. For their part, the progressive team explicitly allows Congress to set up independent agencies (an idea directly at odds with parts of the conservative draft), and enhances Congress’ power to demand information and testimony from the executive for oversight purposes. Both the conservative and progressive drafts give Congress a “legislative veto” over various executive branch policies, thereby enabling them to pass legislation rescinding such actions without facing the prospect of a veto from the president. The conservatives would limit the president to a single six-year term, forbidding reelection.

It may not be easy to combine these ideas into a unified whole, approved by all three groups. But the three do converge on the basic idea that the White House exercises too much power over federal regulation and spending. More exploration is needed to find ways to achieve these goals that could attract broad cross-ideological support.

All three teams also likely agree on the need for18-year term limits for Supreme Court justices. The libertarian group omitted this from their draft constitution only for tactical reasons (because they wanted to focus on specifically libertarian proposals, as opposed to generic “good government” measures). Elsewhere, team leader Ilya Shapiro has endorsed the idea, and it enjoys considerable support among other libertarian legal scholars and commentators (myself included).

I doubt that 18-year term limits would eliminate or even greatly reduce partisan conflict over judicial appointments. But they would curb several other pathologies, including the tendency to appoint younger justices (so they would serve for longer), strategically timed judicial retirements, and arbitrary accidents of fate that give some presidents a large number of Supreme Court appointments, and others few or none. As life expectancy continues to increase, term limits would also forestall the dangerous possibility of having justices who serve for fifty or sixty years, or even longer.

In addition to the points of convergence highlighted by Rosen, all three teams would abolish the Eleventh Amendment, which has been interpreted by the Supreme Court as giving states broad “sovereign immunity” against a variety of constitutional and statutory lawsuits brought by private citizens. The conservative constitution puts it best in proposing to replace sovereign immunity with an explicit statement that “Neither the United States nor any State shall enjoy immunity from suit in the courts of the United States.” Sovereign immunity has been interpreted by courts to prevent a wide range of lawsuits against federal and state governments for violating constitutional and statutory rights. Abolishing it would do much to curb abuses of government power.

Yet another point of agreement is that all three teams would abolish the requirement that the president must be a “natural born” citizen (i.e. – a citizen from birth), thereby allowing immigrants to hold the nation's highest political office. The Natural Born Citizen Clause was probably initially inserted in the Constitution because of fears that European royalty might move to the United States and seek the presidency in order to benefit their families back in Europe. This concern was overblown even back in the 1780s and is even less plausible today. Modern rationales for the Clause are little better, largely relying on unsubstantiated claims that immigrants are less likely to be loyal than natives. Abolishing the Clause would eliminate an instance of discrimination based on arbitrary circumstances of birth, similar to discrimination on the basis of race, ethnicity, and gender.

It is too early to say that these areas of agreement can result in successful constitutional amendments. The obstacles to enacting any significant amendment are high, and the three teams' views are not fully representative of their respective political camps. For example, there are likely many conservatives who do not share the NCC team’s enthusiasm for abolishing the Natural Born Citizen Clause. Many state and local governments (and some federal officials) are likely to oppose abolition of sovereign immunity. Nonetheless, the points of convergence between the three teams are at least plausible candidates for amendment initiatives which deserve serious consideration.

All three proposed drafts include useful ideas aside from those on which there is convergence. The conservative version forestalls court-packing by fixing the number of justices at nine and proposes a ranked-choice voting method for the presidency that might well be an improvement over the status quo. The progressive constitution includes thoughtful proposals combatting gerrymandering by requiring legislative districts to be drawn by independent commissions, banning discrimination on the basis of sex and sexual orientation, and protecting secular exercises of conscience on the same basis as the free exercise of religion. As a libertarian myself, I particularly like the libertarian team’s proposals for abolishing most immigration restrictions, banning nearly all forms of state-mandated labor  - including the military draft, and strengthening protection for property rights and economic liberties.

Obviously, I also differ with all three teams on some of their proposals, particularly the conservatives and progressives. And none of the three addresses the full range of items on my list of “Things I Hate About the Constitution.”

Overall, the National Constitution Center and its three teams have made a valuable contribution to the debate over constitutional reform. The major points of agreement between the teams could potentially be the basis for future constitutional amendments that have a real chance of enactment, because of the potentially broad support they attract. No significant amendment has actually been ratified since the Twenty-Sixth Amendment, enacted in 1971, barred age discrimination in voting rights against citizens over the age of 18.

Even the ideas the three teams agree on would face an uphill struggle in the constitutional amendment process, by virtue of the fact that enactment usually requires an overwhelming supermajority of two-thirds of both houses of Congress and three-fourths of the states. The alternative mechanism of amendment by a convention of the states is comparably onerous. But it is clear that some aspects of the Constitution can use reform.  The NCC constitution-drafting project could potentially be the first step in the admittedly difficult process of achieving it.

Ilya Somin is Professor of Law at George Mason University, and author of Free to Move: Foot Voting, Migration, and Political Freedom. Parts of this article are adapted from a post at the Volokh Conspiracy blog, hosted by Reason.