The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2020, the National Constitution Center sponsored a constitution-drafting project 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 composed of prominent academics and other experts on constitutional law issues. The exercised revealed some important points of agreement between the three teams (even though they also predictably differed on other issues). This year, NCC reconvened the three teams and asked them to come up with a list of constitutional amendments they could jointly agree on.
This, they have now done, and the resulting consensus amendments are available here, along with introductions by three team leaders: Ilan Wurman (Team Conservative), Caroline Frederickson (Team Progressive), and Ilya Shapiro (Team Libertarian) [Note: despite the similar names, Ilya Shapiro is a different person from me].
Their list of proposed amendments is as follows:
- Term limits for Supreme Court justices
This amendment would limit Supreme Court justices to 18 year terms, with a new justice to be appointed every two years. I summarized the advantages of Supreme Court term limits here. The amendment also fixes the number of justices at nine, thereby eliminating the risk of court-packing.
2. Making impeachment easier
This proposal would allow impeachment of the president and other high officials for "serious abuse of the public trust" as well as for "criminal acts" and would reduce the number of votes needed for a conviction in the Senate to a three-fifths majority (from the currently required two-thirds majority). It also requires a three-fifths majority for the House of Representatives to impeach in the first place (up from the current simple majority).
This makes conviction of a criminal, abusive, or malevolent president (or other high official) easier. But it also reduces the risks of beginning an impeachment process for frivolous reasons, by preventing the House from doing so with a bare partisan majority.
3. Legislative veto
This amendment would reverse INS v. Chadha (1983) and give Congress the power to negate most executive branch actions by a majority vote of both houses. Such "legislative vetoes" would not be subject to the presidential veto in the way other legislative enactments generally are. The point of this amendment is obviously to curb the growth of executive power over federal spending and regulation.
4. Eliminating the requirement that the president be a natural-born citizen
This amendment would make immigrants eligible for the nation's highest office. As the statements by the team leaders make clear, it was the issue on which the three teams came to agreement most easily. I outlined the case for getting rid of the natural-born citizen requirement in this 2020 USA Today op ed, co-authored with Harvard Law School Professor Randall Kennedy (a longtime advocate of this reform).
5. Making the Constitution easier to amend in the future
This measure would make it possible to submit a proposed amendment for ratification by the states if the proposal is supported by 3/5 of both houses of Congress, by a majority of the states, or by state legislatures representing two-thirds of the population. This is reduced from the current requirement of a 2/3 majority of both houses of Congress.
An amendment submitted this way could be ratified "by the legislatures or ratifying conventions of two thirds of the several States, or of States representing three fourths of the population according to the latest national census." This is reduced from the current requirement of ratification by 3/4 of state legislatures.
Another provision of the amendment makes it somewhat easier to propose and ratify amendments by using the mechanism of a convention of the states. This tool exists under the present Constitution, but has never been used (probably because success is so unlikely).
This amendment reflects the broad expert consensus that the US Constitution is too difficult to amend (indeed, harder, than the constitution of almost any other democratic society). That has, in turn, shifted constitutional change to other, more dubious, fora, including creative judicial interpretation.
I support all of these ideas, with the partial exception of the legislative veto. When it comes to the latter, I think it might be desirable to cordon off some types of executive actions from easy legislative reversal, such as—perhaps—certain types of military orders in wartime. But I am not sure exactly where to draw the line.
It's also worth noting, as I previously pointed out in my analysis of the original NCC constitution-drafting project, that the three teams also agreed on abolishing the Eleventh Amendment and getting rid of sovereign immunity, which protects federal and state governments from liability for many of their illegal actions. I do not know why this wasn't included in their list of amendment proposals.
Given the immense political difficulties of getting any constitutional amendment passed, it is unlikely that any of these ideas will be enacted anytime soon. But the exercise is worthwhile, nonetheless, because it highlights several improvements to our constitutional system that command widespread support among experts, cutting across ideological lines.
NOTE: The NCC Constitution Drafting project and these amendment proposals are distinct from its "Restoring The Guardrails of Democracy" project. I was a co-author of the Team Libertarian Report for the latter. But I have no involvement in the constitution-drafting project.