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All three teams agreed that the 1787 Constitution should be revised rather than totally superseded, that there should be tighter limits on presidential power, that the state and federal governments should be stripped of much, if not all, of their "sovereign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.

Comments

[RabbiHarveyWeinstein]

Hopefully we can officially politicize nominations to the Supreme Court.

[Ben_]

And on points of disagreement, we can look forward to people like Ilya pretending that policy disagreements are crimes or cruelty or some such overwrought, dramatic BS.

[Queen Amalthea]

It obviously pains Ben, Crusader for Unity and Combating Division, to use such tough rhetoric, but sometimes love is hard.

[Ben_]

Lol. I don’t matter at all. You’re completely wasting your time talking about me.

But it shows you have nothing to say of any substance.

[James Pollock]

" I don’t matter at all. You’re completely wasting your time talking about me."

No shit.

[Sarcastr0]

Preemptive strawman best strawman.

[Ben_]

Yes, it was indeed a prediction of the future rather than an account of something that already happened. Glad there’s no confusion on that.

[Darth Chocolate]

So which is it Ilya? Navel gazing or mental masturbation?

[Dan Schiavetta]

Consult the Confederate Constitution. It wasn't all about slavery. They had some Constitutional scholars on the project who were aware of long-identified defects in the original document and made some changes. For example, the President was elected for a six-year term, and could not be re-elected.

[Cal Cetín]

That's like "other than that, Mrs. Lincoln, how did you like the play."

Though they did have some interesting ideas once they got off the topic of slavery.

[Brett Bellmore]

You've got to be open to good ideas no matter where they're coming from.

[Cal Cetín]

Certainly - picking through the rubble of the Confederacy, you find a constitutional provision that every bill must have only one topic, which is to be expressed in the title. That's a good thing independently of slavery.

[Dan Schiavetta]

Yes.

There must have been some enthusiastic hand-rubbing. They didn’t have to tiptoe through amendments and revisions. They had the opportunity to start from the ground up.

[Brett Bellmore]

The modern Congress would address that by titling all bills, "The 'Doing good stuff' Act of 2021", and when people claimed that wasn't a specific enough topic, the Court would declare the matter non-judicable.

We need structural change in the judiciary, so that whatever Constitution we end up with, the courts are actually willing to require the rest of the government to follow it. They're not, right now, because judges are selected by the people whose actions they're ruling on the constitutionality of.

That's one of those 'exploits' I said need patching. Once the executive and Senate realized that they can violate the Constitution if they pick the right people for the Supreme court, it was all over, and they figured that out during the FDR administration.

Judges, outside extraordinary circumstances, are no use for restraining the people who get to pick them.

[James Pollock]

" I don’t matter at all. You’re completely wasting your time talking about me."

Really? What it they come from (shudder) Democrats or other non-Republicans?

[James Pollock]

there isn't even consensus on what the Constitution already says.

[Brett Bellmore]

There would be, if it lacked any legal significance. It's usually pretty easy to converge on a meaning for things that don't matter, the problem is that once the meaning of something matters, people start letting what they wished it meant color their judgment. If it says something they don't like, they just rationalize a different meaning.

Some people even argue that they SHOULD do that.

[James Pollock]

"Some people even argue that they SHOULD do that."

Yes, you do.

[JonFrum]

Proposing individual amendments is not 'Constitutional reform.' If it is, to the degree that it's true, it's trivial.

What's stopping anyone from proposing an age limit on supreme court justices? At best 80 year old justices are competent to uphold the biases of a lifetime. Their cognitive abilities are so eroded by then that their clerks and their fogged memories must rule them.

Changing the qualifications for the presidency is another easy one - put it to a vote. No need for a 'reform commission.'

[James Pollock]

"What’s stopping anyone from proposing an age limit on supreme court justices?"

nothing. Just the fact that it's stupid.

[bevis the lumberjack]

With the woke and the Trumpistas running loose out there and the woke media covering it, please keep your mitts off of the constitution. Don’t even broach it.

Thank you.

[Jimmy the Dane]

The Supreme Court desperately needs a "check" on their power. The Founding Fathers never intended it to sit as a super legislature, which is the crux of all the issues that come out of that branch.

I have seen various proposals but think the one that makes the most sense is to invest the ultimate judicial power with the Senate who delegates most of that to the equivalent of "law lords" like England used to have in their system. Either that or give the Congress the ability to void a judicial decision with a 2/3 vote. The problem though is then you just void the decision instead of substituting the "correct" judgement. That could create ancillary issues.

[James Pollock]

"law lords"? Why not just skip directly and appoint a monarch who can rule with divine right? That'll keep the government from indulging in tyranny. Step out of line, bureaucrats, and the monarch can summarily strip you of you power and position.

[y81]

The areas of agreement (the 11th amendment, immigrant eligibility for the presidency) share the distinguishing feature that they are issues that no one actually cares about very much.

[Krayt]

that the state and federal governments should be stripped of much, if not all, of their "sovereign immunity" from lawsuits

The deepest pockets of all: giant governments with the legal power to tax. Holy crap, can you imagine all the $20 million yachts that can buy for the lawyers?

And it ain't even the losing side's money, so who cares?

[James Pollock]

One you dispense with immunity, you can tie ANYONE up in litigation. Prisoners suing the cops who arrested them, the prosecutors who prosecuted them and the judges who sentenced them? What could go wrong with that? And those sovereign citizen nutbags with nothing better to do, still have nothing better to do.

[James Pollock]

Our current Constitution is the worst possible Constitution, except for all the others.

[Brett Bellmore]

Each clause should be preceded with the phrase, "Simon says," just to underscore that it should be followed.

The problem with saying the Constitution doesn't need revision, just to be followed more scrupulously, is that it provides no idea how this happens.

It's like saying, when the ransomware has taken over your computer, "The OS doesn't need to be amended, it just needs to be scrupulously followed."; The Constitution is kind of the operating system for the government, and this one is so full of known exploits that any political script kiddie can compromise it in a single election cycle now, even if you did a clean reboot.

It is in desperate need of patches.

[Queen Amalthea]

Amendments, Shcmendments!

[Sarcastr0]

Area man passionate defender of what he believes Constitution to be.

[JohannesDinkle]

Three quarters of the states. Never going to happen.
The Progressive way forward is to pack the Court and declare the electoral college and amendment process unconstitutional - which of course makes no sense, but will provide the cover to remake everything.

[Brett Bellmore]

The blockage isn't on the state end of things, it's on the Congressional end of things: After the ERA didn't go anywhere, they just gave up on originating amendments.

Some combination of getting what they wanted out of the Supreme court, and realizing that the states wanted different amendments than Congress did.

Hold a convention, and we'll get amendments. The left just wouldn't like most of them.