November 27, 2020 9:42PM

The Libertarian, Progressive, and Conservative Constitutions

Earlier this year, the National Constitution Center commissioned a constitution drafting project, with teams of constitutional scholars tasked with creating a new U.S. Constitution, or updating the existing one, according to libertarian, progressive, and conservative visions, respectively. In addition to the actual draft constitutions, we each submitted explanatory essays that summarized our approaches and noted key innovations. Here's a summary of what we did, followed by some concluding thoughts about this experience. (Full disclosure: The project was suggested and underwritten by Cato board member Jeff Yass.)

I led Team Liberty (as we called ourselves), joined by Tim Sandefur of the Goldwater Institute (and a Cato adjunct scholar) and Christina Mulligan of Brooklyn Law School. This was probably an easier project for us than for our counterparts because the current 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. As we put in our introduction, however

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 circumscribed executive power (as did the other groups in certain ways), including by allowing for impeachment of federal officials for "behavior that renders them unfit for office." We made sure that Congress couldn't coerce the states -- the states are allowed to choose block grants instead of federal funding with regulatory strings -- while a supermajority of the states can reverse a federal law or regulation. And we strengthened or made more explicit what we now consider to be protections under the First, Second, Fourth, Fifth, and Sixth Amendments, as well as -- my favorite -- protecting the right to the “fruits of one’s labors” and adding a catch-all “right to live a peaceful life of one’s choosing.” You can read our constitution here.

Team Progressive was led by Caroline Fredrickson of the Brennan Center for Justice (and former head of the American Constitution Society) and included Jamal Greene of Columbia Law School and Melissa Murray of NYU School of Law. Not surprisingly, this team emphasized democracy and equality, while pushing back against the idea that the current Constitution is antithetical to progressive government. In what was a surprise to me, however, they added very few positive rights or entitlements. As these scholars wrote in their introduction:

the original Constitution establishes a structure of divided government that is a necessary precondition for a constitutional democracy with robust protections for individual rights. Accordingly, we took this exercise as an opportunity to strengthen those structural protections for democratic government that we believe serve the exercise of individual rights. . . . We believe that embedding democracy more effectively in our Constitution will better protect rights than an explicit description of each and every right.

As progressives, we believe in democracy rather than government by judiciary, and that is why we have approached the document in this fashion. At the heart of our progressive Constitution is an accountable and inclusive political process.

The Progressives added an explicit right to vote, eliminated the Electoral College, and made the Senate more democratic. They also allowed for the regulation of political contributions, gave Congress greater oversight authority over the executive branch, and added Supreme Court term limits. And they extend what we now think of as equal protection without regard to "sex, sexual orientation, performance of sexual or gender identity, sexual preference, or pregnancy, childbirth, and all attendant conditions, including the decision to become pregnant or terminate a pregnancy." Amazingly, they also subject our rights and freedoms "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" because rights should "be limited to a certain extent in order to promote other democratic values, including the exercise of other rights and the public good." You can read the progressive constitution here.

Team Conservative was 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 (and former Tenth Circuit judge), and Colleen A. Sheehan of Arizona State University. This team focused on strengthening Madisonian deliberation to "serve justice and the common good." As these scholars wrote in their introduction,

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. . . .

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.

The Conservatives shrunk the Senate (one member per state) to allow better deliberation, while limiting senators to one nine-year term and requiring them to swear an oath "to promote the common good and long-term welfare of the nation and not the interests of any party or class." They also limited presidents to one six-year term, to provide incentive for statesmanship over politicking, and changed presidential selection to a system whereby state legislatures nominate candidates and the public selects among them by ranked-choice voting. They would also term-limit the Supreme Court, while fixing the number of justices at nine. They conclude that "a republican constitution itself rests on a still higher authority. . . . 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." You can read the conservative constitution here.

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There's some commonality among the three -- for example on restricting executive power and providing for the voting rights of D.C. residents (accomplished in very different ways) -- but plenty of differences. What surprised me most about this project was how Teams Progressive and Conservative both focused on issues that Team Liberty considered to be "good government" reforms without clear libertarian salience. We debated adding term limits for members of Congress and Supreme Court justices, but 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 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 were doing here.

I found it striking that Teams Progressive and Conservative both focused on structural changes, the former on democratization, the latter on “republicanization.” I would’ve expected both to be much more rights-centered, but maybe that’s my own libertarian projection! Maybe it’s good to know that everyone accepts the basic limited-government, rights-centered model, though the devil is in the details of "democratic values" and "the common good."

Here's a recording of the zoom presentation of the libertarian and progressive constitutions. And here's a podcast with the captains of all three teams (myself included). Finally, here are snazzy pdfs of the Libertarian, Progressive, and Conservative constitutions alongside their explanatory essays.