Introduction to the Libertarian Constitution

By Ilya Shapiro, Timothy Sandefur, and Christina Mulligan^[1]

PDF (includes Constitution)

 

This was probably an easier project for us than for our conservative and progressive counterparts because the current United States Constitution is fundamentally a libertarian or, more precisely, classical liberal document. So much so that, at the outset, we joked that all we needed to do was to add “and we mean it” at the end of every clause.

After all, the Constitution set out a government of limited and enumerated powers, powers that are 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.” That original structure provided a mechanism to preserve the full range of individual liberties because it largely withheld from government the power to violate them. The Reconstruction Amendments further advanced that project by extending the Constitution’s libertarian guarantees to protect against state violation, including eradicating slavery, the single greatest contradiction to the ethos of the American experiment.

Unfortunately, many parts of our fundamentally libertarian constitution, particularly those that limit federal power, have been more often ignored or cleverly evaded, than honored, especially by court decisions that have perverted the actual meaning of the document’s text. Our task was therefore largely to clarify and sharpen those provisions— most notably the Commerce Clause, which has been transformed by legal interpretation into a charter of expansive federal power far beyond what the framers envisioned.

Of course, there have been some developments in the 230 years since the original Constitution and Bill of Rights took effect and the 150 years since the post-Civil War amendments were ratified, that have demonstrated certain deficiencies from a libertarian perspective. Out-of-control spending necessitates a balanced budget requirement (except in emergencies). Today’s imperial presidency militates for a reweighing of checks and balances. We also couldn’t help but add in a few “and we mean it” provisions just to be safe, as well as certain liberty-enhancing reforms suggested by such scholars as Randy Barnett and Milton Friedman.

We also added new protections borrowed from several state constitutions. In the centuries since the Constitution was ratified, states have encountered countless legal challenges and fashioned new ways to protect freedom and limit the size and scope of government. Many state constitutions have borrowed from the federal Constitution, and we’ve decided to do the reverse: to use some of the lessons states have learned to update the federal Constitution. Among the stronger protections for freedom that we’ve borrowed from state constitutions are: prohibitions against “special” laws and “gifts” of government funds, as well as stronger security against warrantless searches and against eminent domain and other forms of confiscation.

We also added greater protections against the abuses by tribal governments, which today are largely free to disregard the rules that apply to other kinds of governments. These protections help ensure that tribal citizens enjoy the full panoply of protections that other citizens have.

Then there were some technical fixes. We updated capitalization and punctuation, and we incorporated today’s amendments into the text rather than appending them at the end. Of course, we didn’t include all of today’s amendments; libertarians generally agree that most Progressive Era changes were no good, so you’ll find no equivalents to the Sixteenth (income tax), Seventeenth (direct election of senators), or Eighteenth (alcohol prohibition) Amendments here.

In the spirit of focusing on drafting a libertarian constitution, we tried to avoid purely “good government” reforms, without clear libertarian salience. So while we debated adding term limits for members of Congress and Supreme Court justices, we decided not to include them because evidence from the states shows no correlation between term limits and liberty-protecting limited government. Same thing for expanding the size of the House and of the Supreme Court; these sorts of reforms might be worth considering— perhaps they make politics less polarized, perhaps they don’t— but that’s more of a political-science academic project than what we’re doing here. Perhaps the most “technocratic” reform we endorse is retroceding most of the District of Columbia to Maryland, just as what is now Arlington County and Alexandria City were returned to Virginia in 1847. We think this is libertarian enough of a change to include because it solves D.C.’s “taxation without representation” issue and physically limits the federal district to the land and buildings actually needed for the federal government, rather than having an unusual residential enclave that requires periodic constitutional adjustment.

In completing this project, we’ve focused, as the original Constitution’s authors did, on protecting “negative” rights— that is, rights against being interfered with— instead of creating “positive rights,” such as a right to education, or health care, or other things that must be provided by others. Classical liberal theory holds that the only valid rights are things like free speech, private property, and the right to be left alone, and that so-called positive rights are not rights at all, but privileges that government can only give one person if it has taken away the rights of another. The alleged right to health care, for example, can only be provided if the government takes property in the form of taxes to pay for it— or even compels doctors to provide it. Such confiscation or conscription, however, violates the rights of those whose liberty or earnings are seized by the government. So our libertarian constitution, like the Constitution of 1787, provides no such “free” entitlements.

With those caveats, herewith is a section-by-section explanation of how the libertarian Constitution differs from the current (mostly libertarian) Constitution.

Preamble

We added a roadmap sentence that reinforces the separation of powers, which may also aspirationally cabin the administrative state. This language is borrowed from many state constitutions, which more explicitly divide the three parts of government than today’s federal Constitution, and which— according to state courts interpreting those constitutions— divide the powers more strictly.

 

Article I: Legislative Branch

SECTION 1

We added a provision reiterating that powers not granted by the Constitution are not to be exercised. Although this is already implicit in today’s Constitution— which only gives Congress the “powers herein granted”— that principle has been so often disregarded that people today often assume the federal government has power to address whatever it considers important.

SECTION 2

We incorporated the Fourteenth Amendment’s Section Two, regarding eligibility to serve in Congress and other offices for those who previously engaged in rebellion against the United States. A Civil War artifact, perhaps, but still worthwhile. As mentioned earlier, we debated instituting congressional term limits and expanding the House, but couldn’t come to agreement over the particulars ourselves— which shows doubly that this wouldn’t necessarily be a libertarian reform.

SECTION 3

We chose not to incorporate the Seventeenth Amendment, but also left it to each state legislature to choose the method of senatorial selection. The U.S. Supreme Court has ruled that the current Constitution allows voter initiatives, rather than legislatures, to address such matters, but we preferred to let legislatures make that choice, because the Senate is meant to represent the interests of states as collective entities, so as to check the threat of federal expansion. Still, we surmise that most if not all states would maintain popular elections for senators. Opposition to the Seventeenth Amendment is a bit of a totem for libertarian activists, but in practice it didn’t much matter; by the time the amendment was ratified, most states were already picking senators by popular vote (at least in primaries), or moving in that direction. We also made clear that the Senate’s power to try impeachments is to be governed by the Senate’s own rules, whatever they may be— another case where our alteration only clarifies something that is already existing law.

SECTION 4

We incorporated the Twentieth Amendment provisions that congressional terms begin January 3, and that Congress is to have annual sessions that begin January 3 of each year.

SECTIONS 5 AND 6

No changes.

SECTION 7

We strengthened the Origination Clause, such that all revenue-raising bills really do have to originate in the House. Today, the Senate often evades the constitutional rule by “amending” an unrelated House bill and replacing it with a tax. Many state constitutions prohibit this shell game by requiring that amendments be “germane” or “incidental,” so we adopted that rule. We also added a line-item veto, such that the president can remove items or appropriations without having to veto the entire bill, subject to the same veto-override provision we already have for full bills.

SECTION 8

This, the section that grants Congress certain powers is where we made the most changes:

1. We specified that the General Welfare Clause actually refers to the “general” as opposed to parochial or specific welfare;
2. We changed the Commerce Clause to allow regulation only of actually interstate actual commerce— unlike today’s legal precedent, which allows the federal government control over noncommercial activity, and activities that take place wholly within one state, on the theory that these activities somehow affect the nation’s economy— but we do allow for regulation of interstate pollution;
3. While Congress still controls the rules of naturalization, we bar it from restricting entry into the country of anyone who doesn’t pose a threat to national security or public health and safety (see further explanation below);
4. we allow non-coin money— paper, crypto, or otherwise— but prohibit Congress from making any particular currency “legal tender” (meaning legally forcing people to accept it as payment);
5. we keep the U.S. Postal Service, but repeal the monopoly powers it currently uses to hinder the operations of UPS, FedEx, etc.;
6. we limit patents and copyrights to 28 years, which was the initial maximum copyright;
7. we expand the Declare War Clause to specify that only Congress may authorize military action in the absence of an invasion or similar attack on U.S. territory or citizens;
8. we change references to the army and navy to “armed forces,” to explicitly allow an air force, space force, cyber force, or whatever other branch may become necessary;
9. we retrocede the residential parts of D.C. that came from Maryland, leaving only government buildings and land (including the National Mall, memorials, monuments, parks, and Smithsonian Museums), as the federal district;
10. we sharpen the Necessary and Proper Clause to only allow laws “incidental” to the enumerated powers, not wholly new ones in the endless string of knee-bone-connected- to-the-shin-bone reasoning that today’s legal precedents allow.

We then add a new provision to prevent states from being coerced into accepting federal programs by the dangling of federal funds; we enable states to decline the federal funds with conditions on their expenditure and instead receive those funds as a block grant to be used for the same purpose.

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.

We thought about further restricting eligibility for public benefits, but then realized that under our system, there wouldn’t be many public benefits available at the federal level, and states will be able to make what rules they wish. The federal government would still be able to implement an orderly process for entering the country, and set rules for naturalization.

SECTION 9

We make a few tweaks to these clauses:

1. We extend the prohibition on ex post facto laws to civil laws. Current legal precedent only applies it to criminal laws;
2. We limit Congress’s taxing power to a uniform tax on the sale of goods and services (a value-added tax, or VAT, if you will), without allowing for income, gift, estate, or direct taxes, and we require three-fifths of each house of Congress to effect a tax increase;
3. We specify that no mode of transportation, beyond just “vessels,” can be taxed when traveling from one state to another;
4. We make all appropriations, not just those to finance the military, sunset after two years;
5. We incorporate the Twenty-seventh Amendment, delaying congressional raises until after an intervening election, and add that Congress can’t exempt itself from the laws it passes, an idea borrowed from political commentator Bruce Herschensohn, who points out that it’s wrong and dangerous that Congress frequently ignores the rules it imposes on the rest of us.

SECTION 10

This section is primarily devoted to limiting what states can do, and we made a few additions, including expanding these protections to apply to tribal governments, as well. When the Constitution was written, Native Americans weren’t U.S. citizens; they became that in 1924, and it’s time the Constitution provided them with the same civil rights other Americans enjoy. Unfortunately, although Congress passed the Indian Civil Rights Act in 1968, Supreme Court precedent has rendered it unenforceable in many cases, so we’ve put its guarantees into the Constitution, along with:

1. Barring states from passing ex post facto laws, whether criminal or civil;
2. Forbidding states from impairing contracts— which would include preclusions of rent control and wage-and-price controls;
3. No imposts or duties on imports or exports— overruling existing legal precedent that has reduced the effectiveness of this free trade provision;
4. No gifts of public funds to private industry— an anti-corporate welfare clause that exists in most state constitutions. We’ve borrowed from Arizona’s Constitution, which has one of the strongest prohibitions on giving public money to private purposes;
5. A prohibition on “special” laws—another idea borrowed from state constitutions, which forbids the government from aiming laws at specific groups. Its language might seem vague, but we’ve borrowed this from Arizona, where courts have given it a strong and effective interpretation, and we assume federal courts would follow those precedents when interpreting it;
6. Requiring all government contracts to be stated in inflation-adjusted dollars— an idea borrowed from Milton Friedman, who recommended it in Free to Choose as a way to “remove the incentive for government to inflate.”

Then we moved the Establishment Clause here, to apply it to both the federal and state governments, because this section is all about prohibitions, so it’s a better fit here than in the “First Amendment” (Article VII, Section 1 in our revision). Tribal governments, however, would be free to establish a religion, as they are under the current Indian Civil Rights Act, so long as they didn’t violate the free exercise rights of dissenters.

SECTION 11

We added a Balanced Budget Clause. The one here is, again, taken from Milton Friedman’s Free to Choose, but we’re not necessarily wedded to this exact proposal. We basically want any clause that, with teeth and subject to judicial review, requires revenues and expenditures to be equal, with an exception for true emergencies.

 

Article II: Executive Branch

SECTION 1

We’ve clarified that the power of the executive branch constitutes the power to “execute the laws” and not some broader, freestanding power. Here we ensure that the presidential electors are chosen however each state legislature directs, and otherwise incorporate the Twelfth Amendment in terms of the process of electing the president and vice president. We also change the eligibility requirement from “natural born citizen” to being both a citizen and a resident of the United States for 15 years. Call it the Schwarzenegger Clause, if you will. We also incorporate the Twentieth Amendment, with presidential terms beginning and ending January 20; the Twenty-second Amendment regarding a two-term limit for the presidency; and the Twenty-fifth Amendment for dealing with presidential incapacity.

SECTION 2

We insert a few technical tweaks here, cleaning up the lines of separation of powers: (1) We give the president the explicit power to exit treaties; (2) we clean up the appointment power; (3) we state that no treaty or international agreement can expand congressional power or be domestically enforceable without enabling legislation; and (4) for purpose of recess appointments, the Senate alone determines when it’s in recess. Most of these, again, only make explicit what is already the law.

SECTION 3

We eliminate the grotesque spectacle of the annual State of the Union address by requiring this information to be transmitted in written form. Congress may still, of course, invite the president to give an address at any time, but let’s be clear that it’s not a constitutional requirement.

SECTION 4

We think impeachment is under-used. Congress should impeach far more officials than it does.

What’s more, some have denied that officials can be impeached for dangerous incompetence or gross negligence— so we’ve again clarified something that is already law by saying explicitly that they can be impeached for “behavior that renders them unfit for office.” Since it takes two thirds of the Senate to convict and remove, we think it unlikely that this will render the President “subordinate” to Congress— and in any event, in an age of “imperial” presidents, stronger checks are probably warranted.

 

Article III: Judicial Branch

SECTION 1

No changes.

SECTION 2

We allow taxpayer standing to challenge allegedly unconstitutional uses of funds, overruling existing legal precedent that wrongly holds to the contrary. We also overrule existing precedent that wrongly interprets the Eleventh Amendment to bar lawsuits against states, but restrict and mandate the Supreme Court’s original jurisdiction to cases with states on opposite sides. Most importantly, we add an “open courts” clause— again borrowed from a state constitution, this time Oregon’s— that forbids secret courts and also overrules legal precedent that wrongly hampers the checks-and-balances system by preventing courts from considering certain kinds of lawsuits against the government.

SECTION 3

No changes.

 

Article IV: Interstate Relations

SECTION 1

No changes.

SECTION 2

We clarified that the Privileges and Immunities Clause gives all citizens the same federal rights in all states. We also removed the Fugitive Slave Clause and other provisions obviated by the Thirteenth Amendment.

SECTION 3

We allow Congress to form a new state from within the territory of an existing state, by recognizing petitions from citizens of that new would-be state, under a process to be determined by Congress. Many states today are simply too big to allow for a healthy political situation— for example, California, where a single state senator represents almost one million people. Subdividing states would render state and federal governments both more effective and more protective of individual rights and liberties.

SECTION 4

We put teeth into the Republican Form of Government (or Guarantee) Clause, overruling erroneous legal precedent that today makes it largely unenforceable by courts.

SECTION 5

This new section, based on work by Randy Barnett, allows states to rescind federal statutes or regulations, by a two-thirds vote of state legislatures— thereby providing a stronger check against federal growth while still respecting federal supremacy.

 

Article V: Amendment Process

No changes. We thought about making amendments easier, given how many wrongful legal precedents today act as implicit amendments— but then realized that we really like our new Constitution and want to make it hard to change! But seriously, any constitution should be difficult to amend, to prevent it from, in John Marshall’s words, “partaking of the prolixity of a legal code.” Constitutions set the boundaries for the political process, and overloading them with picayune detail, or allowing the boundaries to be changed too easily, ruins their ability to provide a stable framework for day-to-day government.

 

Article VI: Constitutional Supremacy

No changes, ensuring the continuity of government from the previous Constitution to this one.

 

Article VII: Bill of Rights

Although we incorporated many of the existing amendments into the text of our constitution above, we thought it best to retain a separate section for a bill of rights— while applying these rights to federal, state, and tribal governments. The first eight sections incorporate the first eight amendments. Then it gets fun.

SECTION 1

This is the First Amendment, except:

1. the Establishment Clause has already been moved up to Article I;
2. we add the freedom of conscience to the Free Speech Clause, and combine both with the Free Press Clause;
3. we expand the Freedom of Assembly Clause to cover the freedom of association and non-association (again making explicit what is already existing law);
4. we add a protection for a person’s right to the “fruits of one’s labors,” borrowed from the Missouri Constitution, and add a catch-all “right to live a peaceful life of one’s choosing”— essentially the crucial libertarian value; and
5. we add the explicit right to make political contributions, which is part of today’s First Amendment but is under concentrated attack by political activists today.

SECTION 2

We take out the prefatory “militia” part of the Second Amendment to eliminate any confusion about the fact that every individual has a natural right to keep and bear arms for self-defense.

SECTION 3

No changes.

SECTION 4

We tweak the Fourth Amendment to clarify the warrant requirement for searches and seizures, giving greater protection to “private affairs” and against home invasions. This provision is taken from Washington’s state constitution— where it has been interpreted to provide some of the strongest protections against warrantless searches in the country.

SECTION 5

We make a number of important changes to the Fifth Amendment:

1. we clarify that the Double Jeopardy Clause applies to dual sovereigns, reversing existing precedent that wrongly says that successive state and federal prosecutions are constitutional;
2. we eliminate the possibility of using eminent domain for private use, as the U.S. Supreme Court has wrongly allowed. We borrowed this language from the constitutions of several states, including Washington and Arizona, which explicitly prohibit such condemnations;
3. we require just compensation for regulatory takings, using language borrowed from Arizona law;
4. we only allow the exercise of eminent domain after the government has paid or secured just compensation;
5. we direct courts to review whether takings really are for public uses— another change required to overcome bad precedent now on the books.

SECTION 6

We prevent coercive plea-bargaining by requiring the government to show that the waiver of any trial (and other critical) rights was “knowing, intelligent, and voluntary.”

SECTION 7

We update the civil-jury right to cases implicating $1,000 (a little more than what $20 in 1791 is worth now) and indexing that sum to inflation.

SECTION 8

No changes.

SECTION 9

Here we incorporate the Thirteenth Amendment, but also prohibit the draft, thereby overruling existing precedent that wrongly allows “involuntary servitude” to the government.

SECTION 10

This is the Fourteenth Amendment, except we replace “privileges or immunities” with “natural or civil rights” to translate the 19th-century speak— even though the meaning is really the same. Simply put, the Privileges or Immunities Clause protects substantive rights; the Due Process of Law Clause prohibits the government from arbitrarily depriving people of their lives, liberty, or property; and the Equal Protection Clause ensures that the government has good reason for treating some differently from others (including reasons for making a distinction between citizens and non-citizen “persons”). We’ve also clarified that the masculine gender pronouns throughout the Constitution include all people.

SECTION 11

This new section explicates the Due Process Clause, requiring any government to show a “genuine” reason for restricting or regulating any individual liberty. In effect, this section eliminates the theory of “rational basis” review— a doctrine invented by courts in 1934, which allows the government to do virtually anything it wants to with respect to rights that judges consider “not fundamental.”

SECTION 12

This incorporates the Twenty-sixth Amendment, as well as clarifying that those voters temporarily residing in the new District of Columbia will be considered, for voting purposes, citizens of the State whence they came.

SECTION 13

This protection for the freedom of contract— again borrowed from Milton Friedman— makes clear what should not be left to inference: people have the right to engage in trade. While it allows the government to determine what objects of trade are and aren’t “legitimate,” that’s the kind of debate that should be held in Congress, rather than in regulatory agencies. In any event, this right should be the rule, and any limitations on it, the exception.

SECTION 14

This section essentially authorizes what we now know as 42 U.S.C. § 1983 claims for violations of civil rights.

SECTION 15

This is an updating of the current Ninth Amendment, which copies from the Virginia Bill of Rights— but also reinforces our libertarian commitments. Simply put, unenumerated rights are just as important as those we list.

SECTION 16

This is the current Tenth Amendment— and we allow ourselves just this one “and we mean it.”

 

Article VIII: Ratificaton and Interpretation

The Ratification Clause needs updating, so we figured 35 of 50 states was about the same ratio as the original. We also make clear that everyone should interpret this new Constitution according to its public meaning at the time of enactment, unless amended through the Article V process.

 

Read The Libertarian Constitution

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Notes

1. Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and author of the forthcoming Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Timothy Sandefur is vice president for litigation at the Goldwater Institute and author of The Conscience of the Constitution. Christina Mulligan is vice dean and professor of law at Brooklyn Law School.↑