Constitution

Thoughts on the National Constitution Center's "Constitution Drafting Project"

The NCC put together teams of conservatives, progressives, and libertarians to propose their own rewrites of the Constitution. All three teams came up with interesting ideas - and with some notable areas of agreement.

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The National Constitution Center recently conducted a fascinating exercise in which it named three groups to produce their own revised versions of the Constitution: a conservative team, a libertarian team, and a progressive one. Each team included prominent scholars and legal commentators affiliated with their respective camps. Here is the list of participants:

Team libertarian was led by Ilya Shapiro of the Cato Institute and included Timothy Sandefur of the Goldwater Institute and Christina Mulligan of Brooklyn Law School. Team progressive was led by Caroline Fredrickson of Georgetown [University Law Center] and included Jamal Greene of Columbia Law School and Melissa Murray of New York University School of Law. 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 Colleen A. Sheehan of Arizona State University.

It is perhaps worth noting that Caroline Frederickson is the former president of the American Constitution Society (liberal counterpart to the Federalist Society), and that libertarian team leader Ilya Shapiro is a different person from me.

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

There are important—and often unsurprising—differences between the three teams. But there are also notable points of convergence. NCC President Jeffrey Rosen summarizes some of them in an Atlantic article on the project:

The results surprised us. As expected, each of the three teams highlights different values: The team of conservatives emphasizes Madisonian deliberation; the progressives, democracy and equality; and the libertarians, unsurprisingly, liberty. But when the groups delivered their Constitutions—which are published here—all three proposed to reform the current Constitution rather than abolish it.

Even more unexpectedly, they converge in several of their proposed reforms, focusing on structural limitations on executive power rather than on creating new rights. All three teams agree on the need to limit presidential power, explicitly allow presidential impeachments for non-criminal behavior, and strengthen Congress's oversight powers of the president. And, more specifically, the progressive and conservative teams converge on the need to elect the president by a national popular vote (the libertarians keep the Electoral College); to resurrect Congress's ability to veto executive actions by majority vote; and to adopt 18-year term limits for Supreme Court justices. The unexpected areas of agreement suggest that, underneath the country's current political polarization, there may be deep, unappreciated consensus about constitutional principles and needed reforms.

As Rosen points out, the libertarian team may well also agree on 18-year term limits for Supreme Court justices, which they omitted from their draft constitution only for tactical reasons (because they wanted to focus on specifically libertarian proposals, as opposed to generic "good government" measures). Elsewhere, team leader Ilya Shapiro has endorsed the idea, and it enjoys considerable support among other libertarian legal scholars and commentators (myself included).

In addition to the points of convergence highlighted by Rosen, it's worth noting that all three teams would abolish the Eleventh Amendment, which has been interpreted by the Supreme Court as giving states broad "sovereign immunity" against a variety of constitutional and statutory lawsuits brought by private citizens. The conservative constitution puts it best, I think, in proposing to replace sovereign immunity with an explicit statement that "Neither the United States nor any State shall enjoy immunity from suit in the courts of the United States."

Yet another point of agreement is that all three teams would abolish the requirement that the president must be a "natural born" citizen, thereby allowing immigrants to hold the nation's highest political office. This has long been my own view, as well.

It is too early to say that these areas of agreement can result in successful constitutional amendments. The obstacles to enacting any significant amendment are high, and the three teams' views are not fully representative of their respective political camps. Nonetheless, the points of convergence between the three teams are at least plausible candidates for amendment initiatives which deserve serious consideration.

All three proposed drafts include useful ideas aside from those on which there is convergence. The conservative and libertarian constitutions both contain valuable (though different) constraints on federal spending. The conservative version also forestalls court-packing by fixing the number of justices at nine, and proposes a ranked-choice voting method for the presidency that might well be an improvement over the status quo.

The progressive constitution includes thoughtful proposals for forestall gerrymandering by  requiring legislative districts to be drawn by independent commissions, banning discrimination on the basis of sex and sexual orientation, and protecting secular exercises of conscience on the same basis as free exercise of religion. Interestingly, the progressive drafters chose not to follow the example of left-liberal constitutional drafters in other countries by including a variety of "positive" welfare rights in their draft (a decision I commend, though some of their ideological allies might not agree).

Perhaps not surprisingly, I am most in agreement with the libertarian draft constitution. Indeed, I agree with that team's work even more than I expected to, based on what I previously knew of their views.

I particularly commend their "Ellis Island Clause" (which would sweep away most federal immigration restrictions, thereby returning us to something like the original meaning of the current Constitution, as understood by Madison and others) their expansion and clarification of the Fifth Amendment's protections for property rights, and the modification of the Thirteenth Amendment to include an explicit ban on the military draft and other forms of  mandatory service imposed by the state. I defended the latter idea in my 2018 testimony before the National Commission on Military, National, and Public Service.

I am disappointed that none of the three teams—not even the libertarians—thought to limit Congress' nearly unconstrained power to restrict international trade, the harm of which has been compounded by ill-advised legislation giving the president the power to impose tariffs on almost any foreign-produced goods he might wish to target. This issue is high on my list of "Things I Hate About the Constitution"—areas where even the most correct possible interpretation of the present Constitution leads to bad outcomes. The libertarian draft does include useful provisions reigning in the Supreme Court's expansive interpretations of Congress' power to regulate interstate commerce, but does not address the power to regulate international commerce, which is subject to many of the same abuses.

Obviously, I also differ with the teams on various issues, particularly the conservatives and progressives. I oppose the progressives' proposals to exempt a wide swathe of campaign finance restrictions from the First Amendment, and their plan to give Congress a new power to "legislate for the general welfare, insofar as such action is necessary to address problems that are national in scope, and that are unlikely to be addressed adequately by state or local governments." I also find troubling their proposal (inspired by the Canadian Charter of Rights and Freedoms, I think), to create a general exemption from all constitutional rights for legislation "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." I fear this provision will exacerbate the already problematic tendency of courts and legislatures to carve out exemptions from constitutional rights, especially when they don't especially like the right in question, when the legislation at issue conforms to their ideological proclivities or some combination of both.

When it comes to the conservative constitution, I am not convinced by their elaborate proposal to restructure the Senate, or by their endorsement of Alexander Hamilton's approach to the spending power over James Madison's. I think Madison's more limited view (largely endorsed by the libertarian team), is preferable.

While I have few disagreements with the changes made by the libertarian drafters, I do think they were wrong to dispense with the Seventeenth Amendment, which made the Senate directly elected, as opposed to chosen by state legislatures. The team is probably right to think that eliminating the Seventeenth Amendment probably wouldn't change much, as most state legislatures would essentially delegate senatorial selection to popular vote anyway. That had already happened in all but a few states before the enactment of the Seventeenth Amendment. But if little would change, and that little would not be an improvement, I see no reason to change the current rule in the first place. I discussed this issue in greater detail in a 2011 debate with co-blogger Todd Zywicki.

Much more can be said about all three teams' proposals. What I cover above only scratches the surface of the many interesting ideas and issues they raise.

I doubt that any these proposals will actually be enacted any time soon. Even the ideas the three teams agree on would face an uphill struggle in the constitutional amendment process. Still, it is clear that at least some aspects of the Constitution can use reform. The National Constitution Center and its three teams have made a valuable contribution to the discussion of these issues. I hope others can build on it!

UPDATE: I have updated this post to include the point that all three teams would abolish the requirement that the president must be a "natural born" citizen. I defended that position myself in various writings, most recently a USA Today op ed coauthored with Harvard law Professor Randall Kennedy.

NEXT: Additional Filings in and Additional Thoughts on the Texas Election Suit

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  1. The only amendment the Constitution needs is one that guarantees the right to confiscate military-grade, scary looking, assault weapons of mass destruction.

    1. Why?

      If you aren’t a threat to a person possessing such a weapon, it either ought not be an issue or he ought to already be in prison for the lesser offenses he’s committed.

      1. Dunno if I agree with the [sarcastic?] comment you’re replying to, but you do contemplate conservative political violence enough you specifically don’t get to play innocent.

  2. Seven clingers against three representatives of the American majority?

    Sounds like a great Federalist Society panel (if you could persuade the non-Federalists to participate), worthy of being ignored by the academic and legal mainstream.

  3. While it’s nice to see the conservatives going for a popular vote for President, the methods of choosing candidates is an absurdity.

    The conservative proposal in general goes way overboard in empowering the rotten boroughs of American politics.

    1. Popular vote for president is actually popular with the majority of Americans. Who it’s not popular with are (A) politicians in “swing” states (who get extra attention and power because of it) and (B) members of whichever party is currently favored by the electoral college†.

      But have no doubt, if the popular vote was put to a popular vote, it would win. Same with anti-gerrymandering. Those anti-Democratic structures are not popular with the American people.
      ________
      †Currently Republicans, once Democrats. Probably Democrats (and then Republicans again) sometime in the future.

  4. The libertarians want a balanced budget clause, which is just stupid – no other word.

    And the business about the 17th Amendment is equally foolish.

    1. Comparing a balanced budget with how Senators are elected, and calling them “equally foolish” shows more how foolish your comparison is.

    2. Eh, the budget proposal allows for exceptions in emergencies, it just needs supermajorities to decide if an emergency exists (and apparently Congress can be blocked by the Pres or the states in emergency situations).

      Since to most politicians an emergency means “my re-election is in danger,” this loophole can be navigated, it would simply require bipartisan agreement and – presto! – all the emergency spending you need.

    3. I certainly agree with you about the 17th amendment, if people think the senators picked by the people of California aren’t so hot, think about the senators picked by the California legislature.

      I imagine you would have similar qualms about some of the more conservative legislatures picking senators too.

      I don’t deny their are problems with Senators being captured by special interests, but quite a few legislatures are captured too, whether by unions or business lobbys.

    4. The 17th amendment effectively diminished the federal system and undermined the sovereignty of the states.

      1. True, but the 17th amendment came only after it was effectively moot, except for the distant threat of taking back the power of appointment. You could repeal the 17th amendment, and nothing would happen, you’d have to constitutionally mandate some alternate approach, or nothing would change.

        1. It’s similar to how states have all ceded power to appoint electors for the electoral college to the popular vote (and for that matter, removed agency from the same electors).

          Whatever wisdom you can point to of having the state legislatures having a more direct role, those same legislatures long since ceded that role to the people in the interest of greater democracy.

          1. Every argument in favor of repealing the 17th amendment was made in the attempt to defeat it. Constitutional-amending-sized majorities rejected them. If you want to reinstate legislative election, you need a better argument — or at least a different one — from “That’s how it used to be, dammit!”

            1. Sure, the better argument is, “History has now proven that the arguments against the 17th amendment were correct.”

              It’s the difference between, “If we do it, parade of horribles will happen!” and “We did it, parade of horribles did happen. Can we stop doing it now?”

            2. I’m not entirely sure this comment is correctly placed, because it feels like you’re responding to an argument, and I made no arguments; I was merely acknowledging the reality that states have long-since ceded their authority on some matters to the people, without being forced to by Amendment.

              That is not an argument for or against anything, merely an acknowledgement of history.

              So again, I’m not sure who you’re responding to, but it doesn’t feel like it’s me.

  5. Interesting that the progressives want to overrule Hurtado and incorporate the grand jury right.

    I assume the libertarians wanted to incorporate their bill of rights too (including that part), although I’m not sure the language actually makes that clear.

  6. The most obvious change to the Constitution wasn’t mentioned by any of the 3 teams, an amendment to make it easier to amend the Constitution. It’s better to amend than ignore the Constitution.

    1. Interesting point. Is it possible that all 3 simply forgot to include it? (It’s hard to imagine that none of the 3 groups would want to make future amendments easier.)

    2. Good god no. The harder it is to amend the better.

      1. Brophy’s point is that when you make amending harder, you incentivize a living constitution, just out of practical need.

        1. The Constitution isn’t any harder to amend than it was when Congress was churning out amendments. What changed wasn’t the difficulty, it was that Congress got comfortable with living constitutionalism as a way to bypass Article V, and enough divergence developed between the political class and the general populace that Congress doesn’t want popular amendments, and amendments Congress would want aren’t popular.

          1. I’d say between parties, the population, and general culture, ease of Amending has not remained static.

            1. But you need to identify correctly the cause of the problem, to craft a correct fix. I mean, (Dating myself!) if the fuse keeps blowing, replacing it with a bigger fuse WILL stop that.

              It might also burn your house down.

              OTOH, fixing the frayed extension cord will stop the fuses from blowing without burning your house down.

              Why hasn’t the Constitution been amended in a long while? Why?

              Congress stopped originating amendments. that’s why.

              You want amending the Constitution to be easier? Don’t get rid of the supermajority requirements. Do like some states do, and mandate periodic constitutional conventions to work around Congress.

              1. Do like some states do, and mandate periodic constitutional conventions to work around Congress.

                That’d be in my version.

                But I’d also include a mandate that congress would have to address SCOTUS decisions against them (either to incorporate into the relevant statute, or attempt to pass a Constitutional Amendment to make the original legal again). Our laws should not be literred with invalid provisions.

                I’d also include mandatory sunset provisions in all laws. If Congress really wants to maintain it’s prohibition on using falconry birds in movies that aren’t about falconry, they should have to reaffirm it periodically rather then just hope no one notices it’s there.

                The thrust of both the last paragraphs should be obvious: I think our laws should reflect what they actually are, and not include hidden “gotchas” (either by virtue or court action changing the law, or just being long moot because no one cares).

    3. Scalia identified the amendment process as one of his wishes to change The Constitution. He said that SCOTUS appointments became political, because the cases they hear became political, because people think it too difficult to amend.

      Heck, some people think it is easier to get SCOTUS to write or rewrite the law than to pass or amend statute law.

  7. I’m not sure about hard term limits for the Supremo Court Justices, How about a minimum age, already required for Representatives, Senators and the President, perhaps 60 years old?

    1. The minimum age to be modified by a panel of actuaries as needed – so that if 70 becomes the new 60, the minimum age will be increased to 70, and so on.

      1. And the minimum age can be waived for terminally ill candidates who won’t be around much longer.

  8. Some of the changes are good:
    * 2/3 state legislature resolutions can repeal federal laws and regulations
    * The emergency exception for balanced budget does have some teeth: it requires approval of 3/4 of each chamber and a majority of states.
    * Eliminates the idiotic double sovereign double jeopardy nonsense.
    * Freedom of association is enumerated.
    * The people do have some means of directly challenging unconstitutional spending and allows lawsuits against states.

    Some are silly:
    * “The right of the people to buy and sell lawful goods and services at mutually acceptable terms shall not be infringed” has that fine little escape word “lawful” which courts would easily drive a truckload of legislation through.
    * The description of copying state constitution bans against “special” laws naively says, “we assume federal courts would follow those precedents when interpreting it”.

    The primary defect I see is not providing any robust means for people to rein in constitutional lapses, other than the spending provision. It still provides for government to define its own limits.

    1. ‘ “The right of the people to buy and sell lawful goods and services at mutually acceptable terms shall not be infringed” has that fine little escape word “lawful” which courts would easily drive a truckload of legislation through.’

      Seems clear to me: the government can declare a good or service outright illegal (child pornography, parts of endangered species, for example). But if it does not, it has no power to decide how it may be bought, sold, bartered, etc.

      1. Courts have twisted so much of the plain language of the Constitution that to twist this would be a no-brainer.

  9. All three sound pretty lame.

    My rewrite:
    A fundamental emphasis on local autonomy and individual liberty as a core value. Power flows from the bottom up. All power is given to an individual other than what is necessary to be given to the local government. All power to the local government other than what is necessary for the state etc. The articles of confederation had its heart in the right place but got the mix wrong.

    Negative rights ascendant over positive rights.

    A third or second legislative chamber of subject matter experts and ordinary but contributing and stable citizens (no one on the dole), (drafted) by algorithm into a pool. Voters can select from the pool and vote on the algorithm. The nominees are all strictly unsolicited and when their term is up will go back to lives in the real world. No ambitious hucksters or lifetime parasites like Biden or Hillary allowed. This chamber can only remove or modify laws.

    Extension of the term ‘religion’ to cover the various social justice and leveling cults that have arisen in the last century and application of church/state separation to these groups.

    1. contributing and stable citizens (no one on the dole)

      Always comes down to this. Conservatives want to create second class citizens of the poor and elderly.

      1. Liberals have already created second class citizens, they just disagree with conservatives about the way in which they should be second class.

        1. Messing with who an vote or hold office isn’t some economic policy thing you’ve got a beef with.
          It’s fundamental to our national structure and culture in a way not much else is. We had civil war over the concept of government of, by, and for the people.

          It’s a damn shame so many in the GOP have decided they don’t care about that ideal.

          1. Freedom of speech is pretty central to our ideals, too, but the prog version clearly envisions political censorship.

            Like I said, both conservatives and progressives like the idea of having second class citizens walking around, they just disagree on how they should be 2nd class. Personally, I’d restore ALL civil rights on completing a criminal sentence, automatically and without reservation. If you’re walking around free, and have achieved the age of majority, you get ALL your rights, no exceptions.

            1. If you think corporations spending money on elections is about as important a pillar of our democracy as not having subgroups of citizens that can’t vote or hold office, that’s on you, man.

              Yeah, the post-felony nonsense sucks as well, for the same reasons I laid out. I should probably get more angry about that than I have before – good point.

              1. Yes, I think freedom of the press is pretty important, and if you look at CU, the case that launched the left on their current crusade for 1st amendment gutting, it’s pretty clear that the concern isn’t with Archer Daniels Midland. It’s with interest groups. Which may technically be “corporations”, but only because tort law makes it impossibly dangerous to do anything in concert without forming one.

                The proposed amendment has the potential to open interest groups to the sort of censorship the government was stopped from engaging in in the CU case. It has the purpose of doing that!

                Every newspaper in the country is a corporation. Every broadcast channel, let alone network. Depriving corporations of 1st amendment rights, stripping any speech thought to be an “in kind contribution” of 1st amendment protection, is a freaking big deal.

                That’s why the left is so intent on doing it, after all.

  10. My proposal would be we try to follow the constitution we currently have before we start making a bunch of changes.

    Things like reviving the 9th and 10th amendments.

    And more rigidly Interpreting Article I:
    “ALL legislative powers herein granted shall be vested in a Congress of the United States.”

    That would drastically cut back the administrative state and forbid legislating from the bench, judges would be able strike laws but not issue quasi legislative orders.

    And I would excise Art I, sec 8, paragraph 17:
    “To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, ”

    We should just fold DC back into VA and MD whence it came, boy was that a bad idea.

    1. I think the Framers did a pretty good job all things considered. Its a better Constitution than almost any major one that came after it that I can think of off the top of my head. Especially all the nonsense 20th century European and supranational ones loaded to the gills with gimmiedats.

    2. Things like reviving the 9th and 10th amendments.

      Originalists hardest hit.

  11. The progressive ninth amendment is incredibly troubling. This is a license for censorship.

    1. They’re pretty clear they want censorship and gun control to be explicitly constitutional, yeah.

  12. We are the most successful country EVER.

    We have the longest, current, continuous form of government (233 years).

    Not sure we need any wholesale changes, maybe a couple of tweaks.

    And I don’t see why an age limit on justices would change anything.

    1. A minimum age for Justices would limit the amount of time a justice could likely server, without setting up some additional opportunities for gaming the system.

  13. Administrative agencies have been called the fourth branch of government, but do any of these constitutions seek to establish an administrative branch? Do they say whether states may, or may not, secede from the union? Do they explicitly state whether the Supreme Court may judicially reviews laws of the United States, or any state? Do any of them provide that they take effect only when ratified by citizens of all of the states, or by some supermajority of the states? (It’s a lot easier to eliminate the electoral college, and reform the senate when you don’t have to worry about getting the less populous states to agree.)
    Do they allow or forbid taxes on income, on wealth, or based on “value added”? If the rights of “persons” to life and liberty are established, what counts as a person — embryos, artificial intelligence, genetically enhanced dolphins?

  14. Reading the “Progressive” constitution, I see they’re subjecting political speech to censorship, and effectively zeroing out the right to keep and bear arms, (Remember, they thought D.C.’s laws were ‘reasonable’.)

    I like the explicit incorporation. “This provision shall apply equally both to the United States and to the States.”

    However, there should have been greater efforts in the direction of consolidating related provisions presently scattered among multiple amendments, and eliminating provisions that no longer have relevance due to reflecting transitional issues or long ago historical events.

    I wonder if their rewrite of the 5th amendment eliminates the current work-around double jeopardy? They really should have improved the double jeopardy language: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;” to make it clear that jeopardy of fines or jail time is included. As currently phrased it sounds like it only applies to capital punishment or having your arm chopped off.

    13th amendment, section 1: “the United States and the States may violate the provisions of this Article either through their actions or through their failure to act.” Is this a scrivener’s error? Sounds like permission to violate!

    13th amendment, section 2: Why did they retain the “Indians not taxed” language, when this is now a null set? And did they just order that the mentally incompetent cannot be disenfranchised?

    13th amendment, section 5: Private citizens are now somehow capable of violating the Constitution?

    16th amendment. Necrophilia is now a constitutional right? Sure sounds like it.

  15. They are all still hiding the FYTW clause in the secret addendum?

  16. Conservative Constitution.

    Also made incorporation explicit.

    Fails to prevent the current violation of the quorum clause, because votes don’t have to be recorded. ALL votes should be role call votes, without any exception, to document the absence of a quorum.

    If the governors of the 4 largest states agree, they can repeal federal legislation?

    I like the ability of Congress to repeal regulations. Prevents the executive from imposing regulations contrary to legislative intent.

    “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.” You could drive a truck through THAT hole.

    Explicitly endorses the modern reading of the commerce clause, what’s conservative about that?

    “nor denying to any person or association of persons the same legal right to publish their views at their own expense as is enjoyed by the owners of the media of communications. ” Bleah, shouldn’t acknowledge the pretense that media corporations actually have special rights.

    Bleah, also endorses Scalia’s rewrite of the 2nd amendment right to ‘Their swords, and every other terrible implement of the soldier’. into a right to only own weapons the government doesn’t find scary.

    “The trial of all crimes, except in cases of impeachment, shall be by jury;” Jury trials no longer optional! Great idea, but did they intend it?

    “No person shall be twice put in jeopardy of life, liberty, or property within the United States for the same offense;” Great, at least THIS version isn’t limited to execution or mutilation, like the ‘progressive’ one.

    Presidential candidates can only be nominated by state legislators?

  17. This is a great way to interact with the constitution, and with various political ideologies.

    If this were an annual thing I would absolutely attend to observe.

    1. Maybe once, but if the participation remains 70 percent clinger I doubt much of consequence or worth would or could come of it.

      The Federalist Society has given us the Texas vs. Reality litigation. I doubt modern, educated, accomplished, reasoning, mainstream America is interested in much more of anything from the Federalist Society.

      (Thanks and congratulations to the few Conspirators with the courage and character to publicly disparage the recent wave of Republican dumbassery in the court and at the White House. The other Conspirators are, of course and without exception, cowards, fops, losers, and jerks.)

  18. Progressive Constitution:
    “The right of the people to keep and bear arms is subject to reasonable regulation by the United States and by the States.”

    And that of course means whatever the party in control wants it to mean.

    1. Remember, they thought the gun laws in D.C. were reasonable regulation. What they mean by reasonable regulation is anything up to and including complete bans.

  19. The progressive version says, “The regulation of campaign expenditures and contributions to mitigate the disproportionate influence of wealthy and unaccountable individuals and organizations over elections should be permissible in our democracy, as it is in all others in the world. ”

    Is Fox News a wealthy and unaccountable organization?
    Is Rush Limbaugh a wealthy and unaccountable individual?

    I see no limiting principle in that phrasing of censorship.

    1. There’s not meant to be a limiting principle.

  20. From the Progressive Constitution.

    “No Person shall be a Representative who shall not have attained to the Age of eighteen Years…”

    I’m not too sure about the wisdom of this.

  21. Interesting but I think, ironically, the libertarian Constitution would be almost as non-libertarian in practice as the liberal one. The (often unfortunate) demands by the ppl for these powerful national bodies can’t be stopped in the long run and a country who interprets it’s constitutional rules out of existence or allows semi-state semi-private institutions g to coordinate leaves our rights at greater risk.

    I mean the libertarian Constitution seems to presume it can simply wave away all the societal and technological factors that have increasingly centralized government and the pressures that will continue to exist for libertarian laws.

    In a perfect world their Constitution takes the federal government out of the buisness of doing many of these things people seem to strongly demand (or at least win elections). But this won’t mean they won’t get done. It will mean the states with their plenary powers and lack of voter awareness will step in and do it instead (the mobility, national news and other factors focusing us on federal politics won’t disappear) of a limited and better monitored federal government.

    But even worse the Constitution (no matter how much one might wish this was the case) risks making many aspects believed to be critical about the modern state (eg coordinating and allocating infrastructure funding) either impossible for the federal government to do and grants some actors disturbingly broad veto powers to rules that a large majority of our country sees as vital.

    Pretending like the courtry will shrug and become libertarians is putting your head in the sand. The governing institutions can’t resist the sustained, highly motivated pressure from the voters in the long run and as much as I wish it wasn’t so the next thalidomide scandal (states won’t, in practice, be able to keep out meds from nearby states) will resurect some FDA like body, the pandemic a CDC like body etc… Maybe it happens like it did in the past, pressuring judges or appointing sympathetic ones or via official interstate agreements or by states effectively delegating to national groups like the AMA who are even less constrained.

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