The Volokh Conspiracy

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How the National Constitution Center "Constitution Drafting" Project Revealed Potential Areas of Consensus on Constitutional Reform

My recently published article on the NCC project outlines several important areas of agreement between conservative, libertarian, and progressive participants.


The National Constitution Center recently published my article describing ways in which the NCC's recent "Constitution Drafting Project" highlights some possible areas of cross-ideological agreement on constitutional reform. Here is an excerpt:

The National Constitution Center recently conducted a fascinating exercise in which it brought together 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. The results revealed substantially more convergence on key issues than might have been expected in our highly polarized times….

All three teams agreed that the 1787 Constitution should be revised rather than totally superseded, that there should be tighter limits on presidential power, that the state and federal governments should be stripped of much, if not all, of their "sovereign immunity" from lawsuits, and that immigrants should be eligible for the presidency. It is also likely that the three teams agree on the need for term limits for Supreme Court justices, though the libertarians did not actually include this idea in their proposed constitution…

The major points of agreement between the teams could potentially be the basis for future constitutional amendments that have a real chance of enactment, because of the potentially broad support they attract…..

Even the ideas the three teams agree on would face an uphill struggle in the constitutional amendment process, by virtue of the fact that enactment usually requires an overwhelming supermajority of two-thirds of both houses of Congress and three-fourths of the states. The alternative mechanism of amendment by a convention of the states is comparably onerous. But it is clear that some aspects of the Constitution can use reform. The NCC constitution-drafting project could potentially be the first step in the admittedly difficult process of achieving it.

The article expands on my earlier Volokh Conspiracy blog post about the NCC Constitution Drafting project.