Thoughts on the National Constitution Center’s "Constitution Drafting Project" – Reason
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 byIlya Shapiroof the Cato Institute and includedTimothy Sandefurof the Goldwater Institute andChristina Mulliganof Brooklyn Law School. Team progressive was led byCaroline Fredricksonof Georgetown Law School and includedJamal Greeneof Columbia Law School andMelissa Murrayof New York University School of Law. Team conservative was led byIlan Wurmanof Arizona State University College of Law and includedRobert P. Georgeof Princeton University,Michael McConnellof Stanford Law School, and Colleen A. Sheehan ofArizona 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 importantand often unsurprisingdifferences 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 Constitutionswhich are published hereall 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 forestall 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 teamsnot even the libertariansthought 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.
Follow this link:
Thoughts on the National Constitution Center's "Constitution Drafting Project" - Reason
- Liberty or Death the Life and Struggle of Libertarians in Russia - Libertarian Party - November 7th, 2025 [November 7th, 2025]
- The Irony of Mamdani - Libertarian Party - November 7th, 2025 [November 7th, 2025]
- Libertarian Backs Tucker Carlson In WAR Against The Neocon Right - TYT.com - November 7th, 2025 [November 7th, 2025]
- Individual Liberty In Libertarian And Conservative Philosophy OpEd - Eurasia Review - November 3rd, 2025 [November 3rd, 2025]
- Rep. Dave Min is my new libertarian hero for shutting down the government - Orange County Register - October 31st, 2025 [October 31st, 2025]
- Fantasy Of Clean Policy In Real India: Why The Libertarian Consensus Fails To Materialise - Swarajyamag - October 31st, 2025 [October 31st, 2025]
- Argentina's midterm election hands decisive win to Milei's libertarian overhaul - The Annapurna Express - October 31st, 2025 [October 31st, 2025]
- Argentina's midterm election hands landslide win to Milei's libertarian overhaul - CNBC - October 28th, 2025 [October 28th, 2025]
- Argentina's midterm election hands decisive win to Milei's libertarian overhaul - Reuters - October 28th, 2025 [October 28th, 2025]
- Libertarian Leanings: Instead of adding a ballroom to the White House, turn it into a museum - Havasu News - October 28th, 2025 [October 28th, 2025]
- Argentina's midterm election hands decisive win to Milei's libertarian overhaul - The Straits Times - October 28th, 2025 [October 28th, 2025]
- Argentinas midterm election hands decisive win to Mileis libertarian overhaul - sightmagazine.com.au - October 28th, 2025 [October 28th, 2025]
- Argentina heads to the polls in a test for Javier Milei's libertarian agenda - NPR - October 26th, 2025 [October 26th, 2025]
- From The New York Times Opinion Section Trump, with his thirst for money and power, has in one fell swoop both exposed and embraced the corruption at... - October 24th, 2025 [October 24th, 2025]
- A Libertarians Perspective, Transparency and Non-Partisan Control an Oped by Steven Edwards, Libertarian - 2nd Life Media Alamogordo Town News - October 23rd, 2025 [October 23rd, 2025]
- How the U.S. bailout could bring the end to Argentinas libertarian utopia - CryptoSlate - October 23rd, 2025 [October 23rd, 2025]
- Libertarian Candidates Test America's Growing Discontent With the Two-Party System - Reason Magazine - October 21st, 2025 [October 21st, 2025]
- Javier Milei's libertarian experiment is in jeopardy. Argentina's midterm elections will determine its fate. - Reason Magazine - October 19th, 2025 [October 19th, 2025]
- I listened to over 7 hours of Peter Thiel's leaked Antichrist lectures. They're surprisingly libertarian. - Reason Magazine - October 15th, 2025 [October 15th, 2025]
- Libertarian throws hat into the ring for Senator Ernsts seat - SiouxlandProud - October 9th, 2025 [October 9th, 2025]
- Libertarian throws hat into the ring for Senator Ernsts seat - Yahoo - October 9th, 2025 [October 9th, 2025]
- Argentinas libertarian President pays tribute to victims of Hamas Oct. 7 attack during a campaign-style event - Yahoo - October 9th, 2025 [October 9th, 2025]
- Rosser running for Libertarian Party in byelection - Northumberland Free Press - October 7th, 2025 [October 7th, 2025]
- Argentine lawmakers have overturned two vetoes by President Javier Milei, in a setback for the libertarian leader ahead of key legislative elections.... - October 4th, 2025 [October 4th, 2025]
- Wyoming Libertarian Party Says School Choice Doesn't Have To Be 'MAGA' - Cowboy State Daily - October 2nd, 2025 [October 2nd, 2025]
- This libertarian manifesto, loved by Peter Thiel, urges a cognitive elite to see selfishness as a virtue - The Conversation - September 30th, 2025 [September 30th, 2025]
- Laughing at a libertarian crypto dragon? That rules: Brennan Lee Mulligan on how Dungeons & Dragons took over the world | Role playing games - The... - September 30th, 2025 [September 30th, 2025]
- Trump Admin Responds to Mileis Failed Libertarian Policies With a US Taxpayer Bailout for Argentina - Common Dreams - September 25th, 2025 [September 25th, 2025]
- Civil libertarian voices concern over proposed use of police drones to catch Wagga criminals - Region Riverina - September 25th, 2025 [September 25th, 2025]
- Trumps new CDC chief: A Washington health insider with libertarian streak - The Indian Express - September 5th, 2025 [September 5th, 2025]
- Trumps new CDC chief: A Washington health insider with a libertarian streak - AP News - September 1st, 2025 [September 1st, 2025]
- Mileis libertarian dream and the risks of Karinas greed - Buenos Aires Times - September 1st, 2025 [September 1st, 2025]
- Three Michigan Libertarians Running for Local Positions in November - Libertarian Party of Michigan - September 1st, 2025 [September 1st, 2025]
- Trump's new CDC chief: A Washington health insider with a libertarian streak - yahoo.com - August 29th, 2025 [August 29th, 2025]
- Libertarian FCC Commissioner Was Believed to Be Uncomfortable with Paramount Deal: Exclusive - Yahoo Finance - August 7th, 2025 [August 7th, 2025]
- Libertarian FCC Commissioner Was Believed to Be Uncomfortable with Paramount Deal: Exclusive - yahoo.com - August 6th, 2025 [August 6th, 2025]
- Friday essay: libertarian tech titan Peter Thiel helped make JD Vance. The Republican kingmakers influence is growing - The Conversation - August 1st, 2025 [August 1st, 2025]
- Libertarian Party of Michigan Convention 2025: Smooth Leadership Transition Highlights Record Turnout - Libertarian Party of Michigan - July 28th, 2025 [July 28th, 2025]
- Presentation: A Libertarian Analysis of Law - Minding The Campus - July 27th, 2025 [July 27th, 2025]
- Peter Thiel, the libertarian billionaire waging war on government - Le Monde.fr - July 24th, 2025 [July 24th, 2025]
- Letter to the Editor: Former Libertarian Chair urges representatives to remember their oath - Brown County Democrat - July 10th, 2025 [July 10th, 2025]
- Musk Invited to Join the U.S. Libertarian Party - Binance - July 6th, 2025 [July 6th, 2025]
- LETTER TO THE EDITOR: Former Libertarian Party chair speaks on One Big, Beautiful Bill - Purdue Exponent - July 6th, 2025 [July 6th, 2025]
- Libertarian Party Invites Elon Musk to Join Them in the Realm of Political Loserdom - Gizmodo - July 4th, 2025 [July 4th, 2025]
- No Kings: Why California needs the Libertarian message more than ever - Orange County Register - July 4th, 2025 [July 4th, 2025]
- Libertarian Party courts Elon Musk amid third-party buzz: Join us, dont reinvent the wheel - Latest news from Azerbaijan - July 4th, 2025 [July 4th, 2025]
- Thomas Massie: The Maverick Congressman Shaping Libertarian Investing Ideas - Vocal - July 4th, 2025 [July 4th, 2025]
- Libertarian Party pitches Musk an alternative to creating new party: Join forces - Washington Examiner - July 4th, 2025 [July 4th, 2025]
- Elon Musk Receives Invitation To Join Libertarian Party: 'Making A New Third Party Would Be A Mistake' - Benzinga - July 4th, 2025 [July 4th, 2025]
- None is Worse Than Less: Libertarian Monetarism, Ample Reserves, and the Crypto Mirage - International Policy Digest - July 2nd, 2025 [July 2nd, 2025]
- Chip Roy Goes Nuclear on Libertarian Witness Advocating For Due Process: Killing Americans! - Mediaite - June 26th, 2025 [June 26th, 2025]
- Review: What the Hell Is a 'Libertarian Authoritarian'? - Reason Magazine - June 22nd, 2025 [June 22nd, 2025]
- Conservative and Libertarian Public Interest Group Letter Opposing "Big Beautiful Bill" Provision that Undermines Access to Justice - Reason... - June 22nd, 2025 [June 22nd, 2025]
- The paradise island where millionaires go to avoid death (and taxes): Isle for the libertarian super-rich attracts many more like Bryan Johnson - the... - June 22nd, 2025 [June 22nd, 2025]
- 'I'm More Libertarian Than You!' Rand Paul Opens Up About His Conversations With Trump, Iran War - The Daily Signal - June 20th, 2025 [June 20th, 2025]
- Heres Why ELON MUSK Should JOIN The Libertarian Party! Robby Soave | RISING - The Hill - June 10th, 2025 [June 10th, 2025]
- Should Elon Musk Take Over The Libertarian Party? A Former Chairman Of The Party Says Yes OpEd - Eurasia Review - June 10th, 2025 [June 10th, 2025]
- Chapter 6: Friedrich Hayek - the archetypal libertarian - Great Economists, The [Book] - O'Reilly Media - May 19th, 2025 [May 19th, 2025]
- LNC Chair Response to Trump "Over-criminalization of Federal Regulations" EO - Libertarian Party - May 15th, 2025 [May 15th, 2025]
- Feminist reformer Beatrice Faust was a sexual libertarian who did her homework, kept her cool and criticised wimp feminism - The Conversation - May 11th, 2025 [May 11th, 2025]
- The Worst Parts of Trump's First 100 Days Involved Ignoring Libertarian Principles - Reason Magazine - April 30th, 2025 [April 30th, 2025]
- Libertarian candidate's vote getting in 2023 didn't revive the party in Vanderburgh County - Courier & Press - April 27th, 2025 [April 27th, 2025]
- Chile Has Its Own Milei, and the Libertarian Is Just as Radical - Bloomberg.com - April 27th, 2025 [April 27th, 2025]
- 'Bizarre in many ways': Libertarian reveals whats behind far rights 'war on empathy' - AlterNet - April 27th, 2025 [April 27th, 2025]
- Goodbye, zoning? Arkansas could be the guinea pig for a libertarian plan to kneecap city government - Arkansas Times - March 25th, 2025 [March 25th, 2025]
- Milei's small libertarian party is in a minority in Congress but has formed ad hoc alliances to push through its cost-cutting agenda - Islander... - March 25th, 2025 [March 25th, 2025]
- Will Congress Ever Take The Libertarian Win And Embrace Automatic Shutdown? - Forbes - March 13th, 2025 [March 13th, 2025]
- State of the Union Response - Libertarian Party - March 11th, 2025 [March 11th, 2025]
- Libertarian Party of Georgia Hosts Annual Convention This Weekend - The Citizen.com - March 5th, 2025 [March 5th, 2025]
- Taibbi: Surprising And Wonderful To See Libertarian Consensus Forming In Washington On Free Speech - RealClearPolitics - March 3rd, 2025 [March 3rd, 2025]
- What Is the American Libertarian Movement? - Cato Institute - March 1st, 2025 [March 1st, 2025]
- Libertarian reacts to DOGE cuts and discusses how to reduce the size of government - WXXI News - March 1st, 2025 [March 1st, 2025]
- A Libertarian Island Dream in Honduras Is Now an $11 Billion Nightmare - Bloomberg - February 14th, 2025 [February 14th, 2025]
- DeepSeek: a wound to the ideological pride of Trump and Musk's libertarian doctrine - AgendaPublica - February 1st, 2025 [February 1st, 2025]
- Ross Ulbricht: The Greatest Victory of the Libertarian Movement - The American Conservative - January 26th, 2025 [January 26th, 2025]
- Angela McArdle: What Role Did the Libertarian Party Play in Freeing Ross Ulbricht? - Reason - January 26th, 2025 [January 26th, 2025]
- Is Trump the most libertarian president ever? Left and Right alike misunderstood his worldview - UnHerd - January 9th, 2025 [January 9th, 2025]
- Its a Weird Time to Be a Libertarian - The New Republic - January 9th, 2025 [January 9th, 2025]
- British politicians are turning me into a libertarian - The Critic - December 22nd, 2024 [December 22nd, 2024]
- Our Libertarian moment is coming. Why opposition will weather it better | Opinion - The Topeka Capital-Journal - December 22nd, 2024 [December 22nd, 2024]