Introduction to the Conservative Constitution

By Robert P. George, Michael W. McConnell, Colleen A. Sheehan, and Ilan Wurman^[1]

PDF (with Constitution) 

 

As part of its “Constitutional Drafting” Project, the National Constitution Center asked three committees representing different perspectives on matters of politics and jurisprudence to draft new constitutions for the United States of America, 2020. Our committee was tasked with framing the “conservative” constitution. The members of our committee were not unanimous with respect to every provision in the proposed document; as with the Constitution of the United States, some provisions represent compromises. From the perspective of none of us is our proposed constitution perfect. Nor do we suppose that a perfect constitution is possible—for our society or any society. And, of course, our constitution will contain faults and flaws reflecting our own all-too-fallible judgments.

As conservatives, we were tempted to leave the Constitution largely unchanged, amending only those provisions most obviously in need of alteration. However, in the spirit of the NCC’s project, we attempted to think more boldly and propose changes that we believe would improve the Constitution to meet the exigencies of our era. Above all—and this is the real point of the exercise—we hope that our efforts will spur constructive discussion of the purposes of a constitution for a free people dedicated to the experiment in self-government.

A sound constitution will serve justice and the common good—that is its justifying purpose. A constitution cannot, however, and will not propose to, resolve all disputes (or all disputes that may someday arise) concerning political ends. Recognizing that reasonable people of goodwill can and do disagree about what justice and the common good require, a sound constitution will establish fair and workable procedures for resolving disputes about such matters. Our proposed Constitution, therefore, in large part consists in the articulation of basic principles and the establishment of institutions and procedures for effectuating those principles in the political life of the people.

The Constitution of the United States is not properly understood as a contract based on self-interest; nor is it merely a system built on shrewd institutional arrangements. It is an agreement whose authority derives from the people themselves, with the crucial qualification that the people are morally bound to exercise their authority in accordance with the standards of a higher, natural law. The Constitution is America’s charter. To consent to it even tacitly, James Madison argued, is to make a pledge to every other American to defend their equal natural rights. As such, the Constitution is a pact of social trust, grounded in the principles of the Declaration of Independence, viz., the recognition of our common humanity and the respect and protection that citizens owe one another. This is what Lincoln meant when he said that the Constitution is like a silver picture frame around the Declaration’s apple of gold. The picture frame was made “not to conceal, or destroy the apple, but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.” We thus begin with a reaffirmation of the principles of the Declaration.

Today, 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. The good of the people is all too easily hijacked by self-interested and ideological factions that promote their own objectives at the expense of the long-term interest of the whole. In short, the goal of refining and enlarging the public views to achieve what Publius called “the reason of the public,” is not working as our Founders hoped it would.

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.

Our country today is fraught with civic disrespect and, all too often, a disregard for the lives of others. America is in need not only of civic healing, but of a better and deeper understanding of the fundamental principles of our nation and its founding documents. We are especially in need of understanding the basic respect to which every member of the human family, without distinction, is entitled, so that our Constitution, informed by the principles of the Declaration, can fulfill the terms of the “promissory note” issued every American, as Martin Luther King believed and proclaimed.

It is these principles, more than the specific provisions of our existing Constitution, that we have sought to preserve. To this end, our committee dedicated many hours of discussion to major structural changes to our charter, as well as to several specific changes to certain powers and rights. Our team comprised two “originalist” constitutional law professors as well as a political theorist and a philosopher of law, and so we were first able to identify many provisions where the original meaning could be clarified or where there were genuine questions as to that meaning.

We also sought to revise or extend some provisions to accommodate modern practices where the Constitution does not speak clearly to such practices. Most radically, we sought numerous institutional and structural changes—to the Senate, to presidential selection, to judicial and executive appointments, to the legislative process, to the role of the states in national affairs, and to various provisions touching modern administrative government—where we thought the Constitution has not worked as well as it could be made to work. Such structural changes, however, were made in the spirit of advancing the Founders’ own principles. In many instances, we return to ideas (or variants of ideas) that were proposed but not adopted at the time of the Founding.

 

The Structure of the Senate

The most radical change we propose is to the Senate. The Senate should deliberate about the common good, but the current Senate rarely does so. We believe that a principal failing of the current system is that politicians are forced to pander to the short-term (and sometimes short-sighted) interests of various interest groups, and find it difficult to adopt policies that trade short-term costs for long-term benefits (or, very often, prevention or amelioration of long-term catastrophe). The long term is not the exclusive province of the right or the left; consider such long-term concerns as the debt burden and the environment. Our committee thus returned to the Founders’ original conception of the Senate as a body that would exercise sober, independent judgment, and the House as a more democratic, responsive institution—thus retaining the advantages of both, in the Montesquieuian spirit of balanced government as opposed to pure democracy.

We propose a series of reforms that will seem radical from a twenty-first century perspective but return to the original conception in important ways. (1) To reduce the size of the Senate to fifty to facilitate genuine deliberation. (The original Senate had twenty-six members.) (2) To increase the length of senatorial terms to nine years, with no chance for reelection. This is designed to create the independence that the Founders hoped from the original Senate. The intended effect is to enable Senators to vote their conscientious judgment regarding the common good rather than focusing on interest groups and reelection.

(3) To reintroduce appointment by the state legislatures, as was the case until 1913. This will have two benefits: to increase the probability that senators will be selected on the basis of experience and character, and to give the states, as states, more of a voice in national legislation. (4) To require Senators to make a solemn pledge to legislate for the common good, and not for the good of any party or class. (5) To rein in, but not eliminate, the filibuster. And (6) to require that members of Congress, except for good cause shown, be physically present when their House is in session—a provision borrowed from the Commonwealth of Pennsylvania—in the hope that genuine deliberation will return to the floor of Congress.

As the framers understood, there is a tension between proportional representation, which is more purely democratic, and equal representation of the states in one of the branches of Congress, which is more in keeping with our federal structure. (The latter was so important to the founding generation that our current Constitution makes it unconstitutional to deprive the states of equal suffrage in the Senate.) Our committee was not unanimous on the balance to be struck, but we ultimately decided that the diversity of views and interests among the United States is best served by leaving many areas of policy to be decided at the state and local level. If 10 million New Yorkers want to restrict hunting or fracking, or to increase the minimum wage, they can do so at the city or state level. However, before imposing such value-laden policies on the entire nation, they should have to secure a nationally distributed majority. That is one of the virtues of the structure of the U.S. Senate, a virtue we have retained and strengthened in our proposed constitution.

We have reduced, however—although we did not altogether eliminate—the advantage of small states in the electoral college in favor of popular election of the President.

 

Presidential Selection

Another important structural change that recognizes these tensions is to the presidential selection process.

The committee believes that the current system for selecting candidates for the chief magistracy, which is not in the Constitution, is insufficiently attentive to experience and character, while the electoral college system for choosing among the candidates is insufficiently democratic. The committee arrived at a system whereby candidates are selected by elected representatives at the state level (thus avoiding a concentration of power in Washington), with the possibility of petition candidates, and the ultimate choice made by popular vote by means of rank-choice voting. It is our view that the current primary system is not good at identifying candidates who would be good Presidents. Nonetheless, the People should have the final choice between two (or more) strong, highly qualified candidates, without distortion by an intermediary body of Electors.

Our proposal achieves this, while retaining the Electoral College’s wise provision for a broadly distributed national electorate, at least at the candidate-selection stage.

Returning to a proposal that was almost adopted by the original Constitutional Convention, we limit the President to a single six-year term. This will make it less likely that the President will make important decisions with a view to reelection rather than to the common good, and will prevent Presidents from improperly using the perquisites of incumbency to gain electoral advantage. It may be too much to hope, but maybe Presidents will focus on their presidential role rather than their position as leaders of political parties.

 

Supreme Court Selection (And Other Executive and Judicial Nominations

The selection of Justices of the Supreme Court should be made less political and arbitrary. Lifetime tenure for Justices has become a serious problem. Some Justices remain in office longer than they should, and many make tactical retirement decisions to ensure replacements from the same political party. The outcome is that one President may have the opportunity to appoint a significant number of Supreme Court Justices, and others might not appoint any. Much as we like the Supreme Court nominees of President Trump, there is no logical reason why he should be able to appoint three Justices in four years, while Presidents Obama and Bush appointed only two Justices in eight years. This makes the stakes of each nomination much higher than it need be. We therefore propose—as have other academics—eighteen-year, staggered terms for Supreme Court Justices, creating a vacancy every two years, thereby evening out the appointment opportunities among Presidents. In addition to being more equitable, we anticipate that if there were a new appointment every two years, that would significantly reduce the temperature of confirmation battles. We also propose modest reforms to reduce the importance of the Court relative to the elected branches.

We fix the number of Supreme Court Justices at nine—the number that has been in place for 150 years—thus preventing the manipulation of the Court by temporary political majorities. Court packing is the death knell of judicial independence. We also provide that the lower courts cannot be expanded by more than one judge per court per two years. This allows for natural growth of the judiciary but reduces the risk of “court packing” in the lower courts.

Relatedly, the conservative constitution changes the confirmation process for executive and judicial officials. Borrowing a proposal made by Madison at the Constitutional Convention, it provides that nominees are automatically appointed after three months, unless sooner disapproved by the Senate. The Senate should be able to disapprove a President’s nominee, but this should require an actual vote, with Senators on the record. (If this had been in place in 2016, Merrick Garland would have gotten an up-or-down vote, and likely been confirmed; the same rules would apply no matter which party is in power.)

 

Super-Majority Rules

Another structural change is the introduction of a three-fifths voting rule in Congress for specified matters that, we believe, should require bipartisan buy-in (such as declaration of emergencies, admission of new states, or adoption of voting rules). These bipartisan decisions are not subject to presidential veto.

The committee further concluded that the current amendment process was too difficult. We sought to make it a bit easier to amend—but not too much easier. Thus, we provide that Congress by three-fifths vote of both Houses, or the states by vote of a majority of the state legislatures, may propose amendments, and we clarify the process of a general convention. We then reduce the ratification requirement from three fourths of the states to two thirds of the states.

Treaties are also too difficult to ratify. The two-thirds requirement makes it increasingly likely that a president will turn to nonbinding executive agreements. The committee reduced the treaty ratification requirement to three fifths.

Finally, Article I, Section 5 proposes that any changes to the rules of proceeding in either House of Congress may only take effect three years after adoption. The idea is to prevent rule changes that unduly advantage a given Congress’s majority. Congress may by law, however—that is, with bicameralism and presentment—make rule changes that take immediate effect. We conclude, moreover, that the filibuster in its current incarnation has gotten out of hand. Sixty votes should not be required for passage of all legislation. We have restored the filibuster to its original purpose of enabling a minority to delay, but not to block, controversial legislation, in part by returning to the “speaking filibuster.”

 

Restoring Congress's Leading Role in the Appropriations Process and in Legislating

The Founders expected Congress, not the executive branch, to take the leading role both with respect to the power of the purse and with respect to laws regulating private conduct. The conservative constitution contains provisions designed to restore that role. First, the terms for House and Senate are increased to three and nine years, respectively, and the President serves a single, six-year term. Longer terms will enable political officials to focus more on legislating and less, or not at all, on winning reelection. These provisions are faithful to the principle of popular sovereignty, in which all power must emanate from the people, but make a modest move in the direction of what is sometimes called the “trustee” (as opposed to the “agency” or “mirror”) theory of representation. Under this theory, the people choose officials in whom they have trust, relying on them to exercise their best judgment regarding the public good, rather than to respond to fleeting public passions.

Numerous changes have also been made to the appropriations process. The proposed constitution requires the House to adopt a budget resolution determining the amount of total expenditures for the upcoming three-year budget period. To the extent the total exceeds the anticipated revenues, which are calculated by a Board of Treasury, the budget resolution must propose legislation raising revenue or borrowing money in an amount sufficient to cover the excess. Bills raising revenue and borrowing money in accordance with the budget resolution enjoy legislative priority and must be enacted before any appropriation for that budget cycle can be passed. If Congress fails to enact legislation raising revenue or borrowing money in an amount sufficient to cover any excess, the President has the duty to exercise a line item veto to reduce appropriations to fall at or below the lawful ceiling.

We do not regard borrowing as a mere policy question to be left to the vagaries of politics. When politicians finance current spending by borrowing, this favors the voters of today at the expense of the unrepresented voters of the future. The framers attempted to deal with this problem by requiring the vote of Congress for any additional borrowing, but the current system of “debt ceilings” creates a situation where the money is already spent before we reach the “ceiling,” giving Congress little choice but to borrow more. Our budget proposal requires Congress to cast votes for taxes or debt before they can spend the proceeds.

As explained more fully below, we also impose a cap on borrowing as a percentage of gross domestic product, except in times of war or national emergency. This proposal is not motivated by economic policy considerations so much as intergenerational equity. Increasing debt today means that higher proportions of future budgets will have to be devoted to payments of interest and principal—especially when interest rates return to their historically normal levels. We see no reason why our generation should enjoy the benefits of higher spending at the expense of our grandchildren.

Our committee rejected, however, the more extreme step of a balanced budget amendment. We agree with Alexander Hamilton that a modest public debt can be a national blessing, and think that borrowing is legitimate, indeed salutary, as long as it grows no faster than the national economy.

We also create a new Board of Treasury, named entirely by Congress, with authority to ensure that money is not expended except in accordance with appropriations passed by Congress. Recent presidents, including both Trump and Obama, have spent money on pet projects even after their proposals were voted down by Congress. There is no effective legal remedy for this kind of presidential overreach.

Congress has the power of the purse, but that power is meaningless if there is no mechanism for ensuring executive branch compliance.

Article I, Section 9 gives Congress the power to establish a central bank like the federal reserve, independent of direct presidential control (thereby remedying originalists’ doubts regarding the constitutionality of this measure). This provision also authorizes the bank to issue paper money and provides for the independence of the bank governors. This is not a change, but a way to bring the Constitution into line with current salutary practice.

 

Administrative Governance

The conservative constitution also grapples with modern administrative governance. The bureaucratic state, is, we believe, the most pronounced example of the “democratic deficit” in twenty-first century American governance. The so-called “fourth branch” of government has lost its ties to Congress because of excessive delegation, to the presidency because of removal restrictions and the permanence of the bureaucracy, and to the judiciary because of an administrative court system that too often resembles kangaroo courts. Our proposed constitution reluctantly accepts the inevitability of significant (though not unlimited) delegations of authority and provides for a legislative veto of regulations by majority vote of both Houses of Congress (without possibility of presidential veto), thereby preserving a back-end legislative check. This is effectively a reversal of INS v. Chadha, but not because that case was wrongly decided. The current system, in which Congress can disapprove regulations—even regulations that distort the meaning of congressional statutes—only by passage of legislation, which can be vetoed by the very President whose administration promulgated the regulations, strips Congress of its rightful role as lawmaker.

Our proposal also makes explicit what we believe to have been implicit in the original Constitution: that the President has the right to remove any executive officer. Instead of relying on convoluted contortions of construction, we create exceptions for the categories of officer who should not be under immediate presidential control: especially officers of the central bank, administrative judges, and those charged with adjudicating electoral disputes. We see no reason in theory or practice to insulate officers in charge of regulatory policy and enforcement from presidential control; regulation is at the heart of the executive power.

The draft also seeks to solve the problem of executive adjudications. Historically, such adjudications could be justified in public rights cases, which are quintessentially those involving statutory public benefits. Private rights cases—those involving deprivations of life, liberty, and property, and the relations of two private citizens to another—should have been understood all along as judicial in nature and not susceptible to adjudication in the executive branch. Our proposed constitution restores that original constitutional scheme, while preserving the practical advantages of administrative courts in terms of efficiency and expertise.

In combination, these changes rein in the “fourth branch” and restore the authority of Congress, the President, and the courts over agency exercises of power that are legislative, executive, and judicial in nature. Congress has the last word on regulations, which are effectively a form of legislation; the President has effective control over law execution; and the courts have jurisdiction to ensure that life, liberty, and property are not taken away except in accordance with law.

 

Citizenship, Voting, and Elections

The proposed conservative constitution makes two determinations with respect to citizenship. It maintains birthright citizenship (in the new Article IV, Section 1) and clarifies that persons born to U.S. citizens are also citizens, even if they are born abroad. We recognize that birthright citizenship for the children of persons who have come to the United States in violation of the laws is controversial, but retained it because of its long history in the Anglo-American legal tradition and because without it there is a real risk of some persons being born citizens of no country at all.

The committee did, however, provide that apportionment of voting representation should be based only on citizenship. Voting is the highest of all political rights and is reserved to citizens, and it follows that apportionment for purposes of voting should only be based on the distribution of such citizens. Additionally, the concept of one person, one vote, further supports the restriction; there is no good reason why the voting power of a citizen in a state with many non-citizens should be weighted more heavily than the vote of a citizen in a state without many non-citizens.

The proposed constitution also solves the problem of the disenfranchisement of the residents of the District of Columbia. It provides that for purposes of “voting, apportionment, and representation” in federal elections, the citizens of the District shall count as citizens of the State from which the land on which they reside was ceded. This seemed to the committee to be the obvious solution to the D.C. problem.

Making D.C. its own state would be blatantly partisan, and there is also something unpalatable about giving extra representation to the seat of government. Our solution solves the representation problem without creating new difficulties.

Regarding apportionment, Article I, Section 2 now provides that each state shall, “pursuant to legislation,” “allocate the State’s representatives by drawing compact and contiguous districts of as nearly equal voting- eligible population as is feasible; provided that Congress may by a vote of three fifths of both Houses authorize other equitable methods of allocation.” The committee regards the practice of partisan gerrymandering as corrosive to our politics but does not believe there is any constitutional or legal formula that can fully solve it within a scheme of geographically defined districts. It also recognizes that it is impossible to eliminate all politics from redistricting decisions. Congress by bipartisan vote of three fifths of both Houses may experiment with other systems, such as multi-member elections with rank-choice voting, but may not do so selectively, which would be an invitation to partisan machinations. We are skeptical that there is an objective legal solution to the gerrymandering problem, but if so, it should come from the representatives of the people and not from the courts. The formulation “pursuant to legislation” permits state legislatures to use electoral districting commissions or other devices that might be thought to reduce partisanship in the districting process, but the requirement of renewed action after the decennial census ensures that such mechanisms do not themselves become impervious to democratic reform.

The proposed constitution also fills gaps in the existing Constitution with respect to enforcement of voting rights. Article I, Section 4 constitutionalizes the central provision of the Voting Rights Act and makes it the duty of the several states to protect the right of all qualified voters to cast a secure and secret ballot for the qualified candidate of their choice and prohibits states from imposing any test or device that has the purpose or effect of denying or abridging the right to vote. It also makes it their duty to protect all qualified voters from violence, threats of violence, or the granting or withholding of any valuable right or benefit in connection with an attempt to influence voting, or dilution of the right to vote by allowing any person not legally eligible to vote. It also guarantees the franchise to former felons who have completed their sentence—a reform that has recently been adopted in a number of states and seems consistent with democratic principle.

Finally, the committee thought that some better mechanism for deciding election disputes is necessary. Currently, such disputes are resolved by the members of the House and Senate themselves or by the courts. The problem with resort to courts is that it puts federal judges in a tough position: there is always the appearance, and too often the reality, that judges vote along party lines in such disputes. Our proposed constitution provides for a tribunal to be composed of members selected by the majority and minority leaders of the two Houses, and those members then select by unanimous agreement additional, neutral commissioners. The tribunal is thus selected much like arbitration panels. The tribunal will apply preexisting law, thus eliminating the unseemly spectacle of supposed law interpreters changing electoral law in the middle of the election. The commission has final say over election disputes, except that Congress may override the decisions by a vote of three fifths of both Houses.

 

Clarifying Impeachment and Inter-Branch Disputes

Article I, Section 6, provides that impeachment may be for “for serious criminal acts and for gross abuses of the public trust.” We believe this clarifies the original meaning of high crimes and misdemeanors, which was not confined strictly to violations of criminal law but also was not intended to encompass mere maladministration or disagreement over policy. As noted, impeachment is made harder and conviction is made easier by requiring a three-fifths vote for each—making it less likely that a partisan House of Representatives will put the nation through the wrenching and distracting process of an impeachment trial with no realistic prospect of removal, as arguably occurred in two of the last four presidencies. The constitution also regularizes the procedures for impeachment, requiring the House to initiate an impeachment inquiry—which authorizes the subpoena power subject to claims of privilege—upon a vote of majority plus five percent. This section also provides that failure to comply with summonses and subpoenas authorized by this section may be prosecuted in court, and the House may choose any “legal officer” to prosecute the claim without the involvement of the executive branch. The current Constitution does not provide any mechanism other than sheer politics to resolve inter-branch disputes, and the committee believed a solution was needed.

 

Emoluments and Public Disclosures

The new Article I, Section 12 provides that no person holding office under either the states or federal government may accept any “gift, payment for services, office, or title” from a foreign state without the consent of Congress. This clarifies the meaning of “emolument” in the current Constitution. Finally, Article II, Section 1 provides that the President shall not receive during the term in office “any other gift, payment for services, office, or title from any other source, but may receive any inheritance or return on investments, provided that any such inheritance or return shall be publicly disclosed.” This again clarifies that the “emoluments” under the current Constitution does not mean passive income such as returns on investments, even if foreign governments may happen to be customers. Any such sources of income, however, must be publicly disclosed.

 

Process of Enacting Legislation and Oversight

The new Article I, Section 8 combines the bicameralism and presentment rules of the current Constitution with the legislative veto noted above. It also provides that Congress has the power to call “for papers and testimony from executive branch officers relevant to their execution of statutory law, subject to claims of executive privilege by the President, which claims of privilege may be overridden by the vote of three fifths of the House issuing the call,” and that “all claims of privilege, and all decisions to override a claim of privilege, shall be accompanied by a written statement of reasons.” The current Constitution does not provide for legislative subpoenas and oversight, but Congress has assumed such power anyway; because it is not rooted in any text, the power is undefined and unlimited. The new provision in the proposed Constitution gives a firm constitutional basis for congressional oversight, but also limits it specifically to matters relevant to the execution of law on the part of executive officers.

A modern-day House Un-American Activities Committee would no longer have power to haul private citizens before a public inquisition and demand answer to questions. It also provides a mechanism for resolving claims of executive privilege by bipartisan vote in Congress.

Our draft constitution also proposes a negative on national laws by a vote of Governors in three fifths of the states, or in states with three fifths of the population. Our committee was divided on this topic, and we put it forward for discussion with even more tentativeness than other suggestions. A majority of us believe that this could be an important check on national power but that the necessary vote threshold is high enough that it will be difficult to use too frequently. Importantly, the Framers initially considered a national negative on state laws. They may have been right for their time, when the states were the most powerful, but today it is the aggrandizement of the federal government that is most concerning.

 

Finance, Taxing, and Spending

The new Article I, Sections 9 and 10 involve finance, taxing, and spending. The first clause of section 9 provides that Congress may tax “for the purpose of paying the debts and providing for the common defense and general welfare of the United States.” This clarifies that the parallel clause in the current Constitution is not actually two powers (both to tax and to spend), which is the current understanding, but is rather one power: the power to tax for certain purposes.

The first clause also eliminates the concept of “direct taxes,” which no one really understands. (The current Constitution requires that direct taxes be apportioned among the states according to their respective populations.) The clause instead provides that “Congress shall not lay any capitation tax, tax on sales, or tax on real or personal property, which revenue sources are reserved to the States.”

As already noted, we limit the national debt to no more than fifty percent of Gross Domestic Product, though this cap is eliminated during declared wars and emergencies. The fifty percent cap was chosen by looking at historical rates. Between 1960 and 1985 the ratio was between thirty and forty percent, and the ratio hovered at sixty percent for most of the 1990s and 2000s. The ratio only jumped in 2008 and has been sitting at over 100 percent for several years.

The next clause grants Congress the power to spend. Although some of our committee were tempted to return to Madison’s view that spending is permitted only in service of one of the other enumerated powers, we resolved to embrace Hamilton’s view that spending should be an independent power, embracing purposes genuinely national and not local in scope. Additionally, we attempted to prevent t he use of spending as back-door source of regulatory authority by two limitations: “No appropriation of money or provision of other public benefit shall be conditioned on the waiver of any constitutional right except insofar as such condition is necessary and proper to achieving the purpose of that benefit,” and “Congress shall not condition any appropriation of money to a State except to specify how the appropriated funds themselves shall be spent, unless such condition is necessary and proper to the carrying out of any of the enumerated powers of Congress.” The former reflects the not-always-followed constitutional doctrine of “unconstitutional conditions” and the latter is a federalism provision rejecting the Court’s approach in South Dakota v. Dole and embracing Justice O’Connor’s dissenting position in that case.

The last part of Article I, Section 9 then provides for formal declarations of emergencies, upon which borrowing and spending limits will be suspended. Such declarations can only issue upon the request of the President and by a three-fifths vote of both Houses of Congress. Declarations expire after six months if there is no renewal. It makes clear that presidents have no emergency powers under the constitution other than these. Congress may delegate other emergency powers, but we hope it will be more careful with this dangerous idea than it has been.

 

Other Congressional Powers

The new Article I, Section 11 is like the old Article I, Section 8, with important clarifications and modifications. Many of these are relatively minor housekeeping changes. Among the more substantive is a revised exclusive congressional power to regulate relations with native tribes, recognizing the importance of the trust responsibility and of self-determination by the tribes; prohibiting retroactive changes in patent and copyright terms; extending bankruptcy protection on a voluntary basis to states; and constitutionalizing conscientious objection from the draft. The commerce power is revised to accommodate some modern doctrine but also to strengthen state power somewhat, and now provides that Congress has the power “[t]o regulate and promote commerce with foreign nations, and among the several states, and with the native tribes, and to regulate the production and sale of goods and services in national markets.” The revisions to the war powers in Article I, Section 11, as well as in Article II, Section 3, are designed to restore the primacy of Congress with respect to the use of military forces, while retaining executive flexibility to deal with genuine threats.

 

Rights

The Bill of Rights is largely moved up into the new Article I, Section 12. The prohibitions of this section explicitly apply both to the United States and to the States—solving the incorporation question. For the most part, the changes are designed not to alter the substance of rights under the Constitution as it now exists, but to correct and clarify their original meaning. One addition is a protection for parental rights, which the Supreme Court has adopted as a matter of “privacy,” but which warrants explicit recognition. It also allows federal appropriations for education but preserves state and local control.

The modified “Second Amendment” clarifies what we understand to be the best original understanding. It provides, “Neither the states nor the United State shall make or enforce any law infringing the right to keep and bear arms of the sort ordinarily used for self-defense or recreational purposes, provided that states, and the United States in places subject to its general regulatory authority, may enact and enforce reasonable regulations on the bearing of arms, and the keeping of arms by persons determined, with due process, to be dangerous to themselves or others.”

The provisions of the Fourteenth Amendment are also brought here and made binding on both the states and the federal government. After the due process and protection of the laws clauses, the draft includes, “This prohibition shall not be construed to grant courts a general power to create new rights or to adjudge of the reasonableness or wisdom of laws enacted by the representatives of the people.” The idea was to get rid of the notion “substantive due process,” by which courts make up fundamental rights.

Finally, there is no “privileges or immunities clause.” Although there is a dispute over the original meaning of the clause, one committee member has written that the clause was an antidiscrimination provision with respect to civil rights. The draft constitution clarifies that this clause, not the equal protection clause, is what is doing most of the antidiscrimination work. There is also the question of what rights are covered by the privileges or immunities clause. The most likely answer is that it covers civil rights but not political rights, and it is not entirely clear what to do with public privileges or with “social rights.” To simplify and expand, the draft constitution provides, “Neither the states nor the United States shall make or enforce any law which shall discriminate on the basis of race or other irrelevant characteristic.”

 

Specific Prohibitions on States Only

Article I, Section 13 is akin to the old Article I, Section 10, and includes those prohibitions that are applicable only to the states. This section clarifies that the commerce power was intended to be exclusive, and so states cannot regulate interstate commerce; but they can exercise police powers that affect articles of commerce. The “dormant commerce clause” thus clarifies that states cannot discriminate against out of state commerce and clarifies that any regulations imposed on out-of-state products must also be imposed on similar in-state products.

The full faith and credit clause is moved up from the original Article IV to this section, and the Tenth Amendment is also moved here. Article I, Section 13 then ends with a congressional enforcement power.

 

Other Changes to Article II

The new Article II, Section 2 combines a variety of provisions about presidential disability, principally from the current Twenty-Fifth Amendment. We have, however, made some tweaks to that Amendment. The current version says that whenever the Vice President and the majority of the principal officers of the executive departments, “or of such other body as Congress may by law provide,” transmit to Congress their declaration that the President is unable to discharge his duties, the Vice President acts as President. We eliminated the above-quoted language. We then simplified the rest of that provision, noting that the President resumes the office upon a written declaration to Congress, unless Congress by a vote of two thirds concludes that the President is still unfit.

Article II, Section 3 is the new section providing for presidential powers. It clarifies that the President is head of state and represents the nation “with dignity and impartiality” on ceremonial occasions. It provides that the President is to “conduct the relations of the United States with foreign nations and international organizations” and “to superintend the execution of the laws.” This clarifies that the President’s law- execution power is supervisory only. The President may issue executive orders binding on officers, as well as executive agreements with other nations, but neither executive orders nor agreements shall have legal effect unless authorized by Congress. Similarly, the new Article II, Section 4 provides that “[t]he President shall not direct the prosecution or non-prosecution of any person in a specific matter, but shall leave such decisions to the discretion of the relevant officer.” This is a change to the current Constitution, but a continuing of a salutary norm that has built up in recent decades. The committee concluded that the President may always remove an officer or pardon an offender, but it is generally improper for the President personally to direct prosecutions.

The next paragraph clarifies the President’s war powers, as noted previously. The following paragraph clarifies that the President may remove at will all executive officers. It retains the pardon power but specifies that the President may not pardon himself or the Vice President. It also solves a perennial separation of powers problem by providing that the President “shall be immune from criminal prosecution by the United States or any State during the term of office; provided that any statute of limitation shall be correspondingly extended, and the factual basis for any such prosecutions shall be reported to the Speaker of the House for possible impeachment proceedings.”

The appointments clause then further clarifies (in addition to changing the advice and consent process as described previously) that inferior officers may be appointed by the officers having supervisory authority over them, hence reversing part of the holding in Morrison v. Olson.

The third Amendment, with the language modernized, is moved up into a new Article II, Section 5, which also provides that the armed forces shall not be used within the United States “for the enforcement of criminal law except when ordinary means of law enforcement, supplemented by the Militia, are manifestly incapable of keeping order, and any such use may be disapproved by either House of Congress by majority vote.” This effectively adopts and modifies the Posse Comitatus Act.

 

Other Changes to Article III

The most consequential changes to Article III are the change in terms and mode of selection of Supreme Court Justice and the elimination of both federal and state sovereign immunity. The latter was a difficult decision, but ultimately we are persuaded by the popular sovereignty arguments of Justice James Wilson in Chisholm v. Georgia (as a matter of constitutional design even if not original meaning). In addition, the proposed constitution tweaks the definition of original, appellate, exclusive, and concurrent jurisdictions, eliminating the Exceptions Clause, which strikes us as mostly a source of partisan mischief.

 

Article IV

Article IV has been broken up, and some parts relocated elsewhere. The new Article IV contains the citizenship clause, already discussed, and retains the Republican Guaranty Clause and what is now the Thirteenth Amendment’s prohibition on slavery. These should be located together, because the prohibition on slavery and the definition of citizenship are integral to republican government.

Article IV makes two changes relevant to federalism. One requires a three-fifths vote for admission of new states, which discourages partisan manipulation of the scope of the Union. The other addition is a new “equal footing clause,” which provides that “[e]ach State in this Union shall be on an equal footing; and no law shall discriminate against any State or States unless it is predicated on a real and substantial difference relevant to the power under which the law is enacted.” Although this reflects the intentions

of the framers, it is a change in the constitutional text. It should not be seen as an endorsement of Shelby County v. Holder, which several of our committee have criticized under the Constitution’s current language.

 

Article VI

The Supremacy Clause is clarified to say that the Constitution, and the laws and treaties of the United States made “in conformity with this Constitution,” are the supreme law of the land–making clear that both statutes and treaties are subordinate to the higher law of the Constitution.

And, to come full circle, we recognize that a republican constitution itself rests on a still higher authority. We speak, of course, of that authority the Declaration of Independence invokes, 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.

 

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