In this week’s episode, we are sharing audio from a program hosted live from Arizona State University’s Sandra Day O’Connor College of Law and presented in partnership with ASU’s Center for Constitution Design. The program centered around a discussion of the National Constitution Center’s landmark Constitution Drafting Project, and featured members from each project team—Georgetown Law’s Caroline Fredrickson of team progressive, the Goldwater Institute’s Timothy Sandefur of team libertarian, and ASU’s Ilan Wurman of team conservative. They discussed their various approaches to constitution drafting, how they came to agree on five proposed amendments, and explored the project’s importance in today’s constitutional climate. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was presented live on February 1, 2024.
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Today’s episode was produced by Tanaya Tauber, Lana Ulrich, and Bill Pollock. It was engineered by David Stotz, Gregg Elder, and the production team at Arizona State University; and Bill Pollock. Research was provided by Yara Daraiseh, Cooper Smith, Samson Mostashari, and Lana Ulrich. Special thanks to the team at ASU’s Center for Constitutional Design for helping to produce this program.
Participants
Caroline Fredrickson is a distinguished visitor from practice at Georgetown Law Center and a senior fellow at the Brennan Center for Justice. Before joining Georgetown, she served as the president of the American Constitution Society. Fredrickson is also the leader of the progressive team for the National Constitution Center’s Constitution Drafting Project. She is the author of several books, including The Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections and The AOC Way.
Timothy Sandefur is the vice president for legal affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He is the author of eight books, including most recently Freedom’s Furies: How Isabel Paterson, Rose Wilder Lane, and Ayn Rand Found Liberty in an Age of Darkness, and Frederick Douglass: Self-Made Man. He is also an adjunct scholar with the Cato Institute and is a member of the libertarian team for the National Constitution Center’s Constitution Drafting Project.
Ilan Wurman is an associate professor at the Sandra Day O’Connor College of Law at Arizona State University and the leader of the conservative team for the NCC’s Constitution Drafting Project. His academic writing has appeared in numerous law journals and his latest book is The Second Founding: An Introduction to the Fourteenth Amendment. His third book, The Constitution of 1789: An Introduction, is also forthcoming with Cambridge University Press.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- National Constitution Center, Constitution Drafting Project
- National Constitution Center, Constitution Drafting Project, “The Proposed Amendments” (PDF)
- Center for Constitutional Design at Arizona State University’s Sandra Day O'Connor College of Law, 2024 Model Constitutional Convention
- NCC America’s Town Hall program, Justice Stephen Breyer on the Importance of Civics Education (Oct. 6, 2022)
- Jeffrey Rosen, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America (2024)
- Erwin Chemerinsky, We the People: A Progressive Reading of the Constitution for the Twenty-First Century (2018)
- The Preamble to the Constitution
- The Declaration of Independence
- Citizens United v. Federal Election Commission (2010)
Excerpt from Transcript: Timothy Sandefur on the importance of safeguarding individual rights in constitutional discussions, cautioning against excessive compromise and emphasizing the need to prioritize principles over expedient agreements.
Timothy Sandefur: My primary concern is protecting individual rights to the maximum extent possible. And with that in mind, I will confess, I approached the entire project with a degree of skepticism that I would like to attribute to people like George Mason or Patrick Henry at the Philadelphia convention. Henry was not at the Philadelphia convention for just this reason. And so, I was nervous about what would be proposed and how we would do our deliberations, and I think I made myself a bit of a gadfly in some of our discussion for just that reason, because my primary concern is not how do we get more laws passed, 'cause we have too many already, but rather how do we better protect individual rights. And so, it was very interesting to see the dynamic operating in that respect. Another very interesting thing for a Constitutional law like myself was, as you mentioned, about compromise.
It was a compromise, on one hand, but, of course, it's also sticking to your principles on the other, and it's even more complicated than that, because sometimes the questions can't be resolved either way. One of our proposals is, as you mentioned, eliminating the birthright citizenship requirement, and we proposed replacing that with a rule that you have to be a citizen of the United States for a number of years as opposed to being 35 years old and having been born here.
Well, how many years exactly? Right? And we went back and forth about this. I think your proposal was the one we ultimately went with. There's no principled line you can draw. There's boundaries within reasonable boundaries, it was interesting to me to see how our positions kind of rubbed against each other, and sometimes the edges rubbed off as we went back and forth, and there was, a degree to which it was, well, maybe if I give him this, he'll give me a little bit of that.
So, it was a very interesting dynamic to watch, and what I would want students to know going in is that, well, I would say compromise should not be your number one goal. If compromise is your number one goal, then you have no principles at all and if you have no principles, then there's no reason to have a Constitution. The preface of a Constitution is to protect us from the government, and that should be your number one priority.
What is going to be the rule that will protect me from being oppressed and deprived of my rights? That should be your overriding goal, and if you can't reach an agreement that satisfies that, don't sign that document. Have the integrity to say no, if you really feel you have to say no. But you also find that you really don't have to say no as much as you might think. I thought that was an interesting outcome.
Excerpt from Transcript: Ilan Wurman on the threshold for impeachment and conviction, the definition of "high crimes and misdemeanors," and the internal mechanisms for removing members within each branch of government.
Ilan Wurman: There did come a point, the way that we structured it was for serious criminal acts or serious abuses of the public trust or serious abuse of the public trust, and at some point, someone suggested very artfully, why don't we get rid of the second serious. This raises an ambiguity.
Is the serious modify only a criminal act or also modify a public abuse or abuse of the public. And so, this was a situation where, you know we decided strategic ambiguity was not the way, I think. I've said before in writing that strategic ambiguity is useful on things not sufficiently important to scuttle what you're talking about, but this was important. This was one side wins and the other loses. Okay? Strategic ambiguity went out the window and from our perspective, we raised the threshold to impeach to two-thirds and we three-fifths, and we lowered the threshold for conviction to three-fifths. So, they're both three-fifths, up from a majority, down from two-thirds. And we clarified a standard.
I think that the language we used serious abuse of the public trust is what we understand high crimes and misdemeanors to be, not just maladministration, but it doesn't actually have to be crimes. It can be a political question. Okay?
Now, having said that though, you know, they debated this in 1787 in the convention. Right? How independent of Congress would the President be? Initially, they proposed to have Congress select the President. Right? And then, you barely would need impeachment. They said, no, we want the President to be an independent branch, not subject to the beckoned call of Congress, and we think at team conservative any way, that that was ultimately correct.
Now, to be clear, that doesn't mean there shouldn't be a mechanism to remove someone for inability or what was it inability and not incompetence. I think it was a bunch of Is. Inability, for sure, but basically, you know, if you're incapacity maybe? Because the way that we structured it. So, right now, Congress basically can expel its own members. Under the 25th Amendment, executive branch officers, the President's own people, can decide if the President is unable to execute the duties of the office, and in our proposal, I don't know if it made it into the draft of the judicial reform, but in at least the conservative Constitution. This made it into the draft of ours.
We provide a mechanism for the judiciary also to remove judges who are senile and incompetent rather than, 'cause again, does impeachment cover that? This came up in George Washington's administration. There was a senile district judge in New Hampshire and they just, like, assigned him different duties. You know, it would be much easier to just remove him. And so, we provide for each branch an internal mechanism to remove its own members for things like incompetence, inability, and incapacity.
But when it came to Congress impeaching someone from another branch, we decided to keep the higher standard, and we put a lot of thought into this. Like, who sits in judgment or who chairs an impeachment when the Vice President is impeached? Who presides? Does anyone know?
Well, the Constitution says that when the President is impeached, the Chief Justice shall preside, but otherwise, the President of the Senate presides. Well, the Vice President is the President of the Senate. Does he preside over his own impeachment?
Excerpt from Transcript: Caroline Fredrickson on the bipartisan agreement on imposing term limits of 18 years for Supreme Court justices to mitigate their excessive influence across generations and political cycles, proposing measures to address filibusters and ensure timely appointments.
Caroline Frederickson: Well, so, this is another area which I was very excited to find agreement on. It's actually reflects, I think, a broad agreement across the political spectrum in the United States that it's absolutely inappropriate way to structure a Supreme Court to provide for a life tenure and it's become more exaggerated because historically until the 70s, pretty much the typical term of service was more like 15 to 18 years and it has grown enormously.
And in part, we live longer than we used to. So, justices live longer, but they also get appointed at much younger ages. It's sort of no longer the kind of capstone of a glorious career in the same way that it was but instead, something that happens to somebody much earlier in their career. And so, you know, you have a kind of situation where you have people who have this enormous power who serve for generations, right, who cut across multiple generations of people and political cycles.
And that creates, I think, the kind of anti-democratic force that Ilan was mentioning earlier that comes from a Constitution that is virtually un-amendable. When you have a court that sits on so much power and judicial supremacy in the United States that allows the Court to exert such a pull. We could talk about so many issues that the Court has said its imprimatur on. We recognize case names that are, I think, unusual compared to most other democracies.
So, we agreed that 18 years, we looked at historical numbers was a long enough to provide enough independence from the current political forces to guarantee that the justices wouldn't just be swayed by politics all the time, but not so long as they would become so indifferent to politics and feel so immune from any kind of outside criticism.
I think it's the more that, it's studies, the more people do polling more Americans agree on that reform, I think than probably any other one we could talk about, in terms of Constitutional amendments. And so, we came to agreement on that fairly quickly and I think the libertarian Constitution, because it was just, "And we mean it," didn't have initially a proposal for Supreme Court term limits.
But the conservative Constitution did and new to your credit, agreed that you could live with it. We went forward and we did also, because you might ask the obvious question, well, what happens if there's a filibuster on the Senate. So, we also dealt with that and basically have a provision that says, for nominations, generally because of the fact that we all agree that a President should have her cabinet and so, there should be some ability to make sure that there isn't an unjustified obstruction.
And so, after three months if there has been no vote, they are deemed appointed, or I can't remember the exact language that we used, and we did the same for Supreme Court justices for all nominations, essentially, so that the filibuster will be more or less kneecapped in this.
In our Constitution, actually did away with the filibuster all together in the progressive Constitution, but probably you'd like it but in any case, we agreed, in this particular case in terms of nominations, there would be it wouldn't be possible, so then you could get over that hurdle of what the Senate rules are now.
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