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The conservative team, composed of Robert P. George of Princeton, Michael W. McConnell of Stanford, Colleen A. Sheehan of Arizona State, and Ilan Wurman of Arizona State, focuses on structural reforms designed to improve the countrys political discourse. Many of their proposed changes, they write, are designed to enable elected officials to break free of the grip of faction and once again to deliberate, with the aim of listening attentively to, as well as educating, public opinion, and promoting justice and the public good. The changes they describe as most radical are reducing the size of the Senate to 50 members to encourage genuine deliberation, increasing senatorial terms to nine years and the presidential term to six yearsboth with no possibility of reelectionand (in a proposal the libertarian team also put forward) reintroducing senatorial appointment by state legislatures. In their view, these reforms would encourage elected officials to vote their conscience and focus on the common good rather than partisan interests.

The progressive team, composed of Caroline Frederickson of Georgetown University, Jamal Greene of Columbia, and Melissa Murray of New York University, also finds much to admire and preserve in the original constitutional structure. We wanted to make clear our own view that the Constitution, as drafted in 1787, is not completely incompatible with progressive constitutionalism, they write. Indeed, in our view, the original Constitution establishes a structure of divided government that is a necessary precondition for a constitutional democracy with robust protections for individual rights. The goal, in their proposed changes, is to secure the blessings of liberty and equality promised by the Declaration of Independence, by doing more to strengthen the structural protections for democratic government. Rather than abolish the Senate, the progressive team would make it more representative, with one senator for each state and one additional senator [for] every one-hundredth of the national population. For example, California would have 13 senators, Texas would have seven, Florida nine, and 22 states (including Washington, D.C.) one. Senators would serve for one six-year term. The progressives would also decrease fundraising pressure on representatives by extending the House term from two to four years, and by making clear that the government has the power to set both spending and contribution limits in political campaigns. Their proposed Progressive Constitution would also codify judicial and legislative protections for reproductive rights and against discrimination based on gender, sexual orientation, gender identity, pregnancy, and childbirth.

The authors of the proposed Libertarian ConstitutionIlya Shapiro of the Cato Institute, Timothy Sandefur of the Goldwater Institute, and Christina Mulligan of Brooklyn Law Schoolemphasize their intent to clarify the original Constitution, not replace it. At the outset, they write, we joked that all we needed to do was to add and we mean it at the end of every clause. Their particular focus is resurrecting limitations on the commerce clause. Since the New Deal era, the Supreme Court has interpreted the commerce clause to grant Congress essentially unlimited power to regulate anything that might have a tangential effect on interstate commerce. The libertarians would allow regulation only of actual interstate commerce, not of noncommercial activity that takes place within one state. They would also limit federal power in other ways, requiring all federal regulations to be related to powers enumerated in the Constitution and prohibiting the federal government from using its powers of the purse to influence state policies. Like the conservative team, the libertarians would return the selection of senators to the states, in the hope of promoting federalism. The libertarians also include a series of other restrictions on state and federal power to protect economic liberty, such as limiting the states from passing rent-control or price-control laws, prohibiting the states and the federal government from subsidizing corporations, providing for a rescission of national laws by a two-thirds vote of the states, and requiring a balanced federal budget.

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What If We Wrote the Constitution Today? - The Atlantic

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.

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

The 2016 Donald Trump coalition was one for the ages.

These were far from typical Republican voters, made up of disaffected liberals, libertarians, nationalists, run-of-the-mill conservatives and skeptics of adventurous foreign policy.

Rhetoric on dismantling of the administrative state, promises of low taxes and cutting down on wars abroad convinced many moderates and libertarians who otherwise wouldnt have backed a GOP candidate. In 2020, due to many reasons, that coalition didnt deliver for Trump.

As President-elect Biden assembles his administration and evaluates the coalitions that brought him to power, hed be wise to channel some libertarian ideas that made 2016 Trump somewhat appealing to these groups and perhaps pivot public policy in a freer direction.

To begin, the incoming Biden administration has an opportunity to return America to a humble foreign policy and reduce our involvement in endless wars, a sentiment shared by large majorities of the American people.

A August 2020 YouGov poll commissioned by the Charles Koch Institute found that 74 percent of Americans support bringing troops home from Iraq and 76 percent of Americans support bringing troops home from Afghanistan. The findings were nearly identical among Republicans and Democrats. A plurality (48 percent) of those polled believe we should be less militarily engaged in conflicts around the world.

If we remember the 2016 version of Trump, he was a standout in the GOP primary because he spoke to the voters whobelievedit was time to draw down Americas military presence overseas. Biden has proven to be acheerleaderfor interventionism in the past, but the American electorates current tolerance for war is at an all-time low.

Beyond the wars themselves, Biden should also restore the balance of powers to restore Congress ability to decide war and peace. A2018 surveyby the Committee for Responsible Foreign Policy found that 64 percent of Americans disapproved of Congresss lack of leadership on military matters.

It also found that 78.8 percent of respondents agreed that Congress should require clearly defined goals to authorize military engagement overseas.

That would help reduce the amount of armed conflict where we send our soldiers, and also keep Congress accountable to the people. Perhaps then, we wouldnt still have troops in Afghanistan, Iraq, and countless other nations.

Here at home, Biden should continue Trumps laudable criminal justice reform efforts, which are currently being led by Republican state legislators across the country. In 2018, Trump signed theFirst Step Act,earning praise from all political sides by enacting needed prison and sentencing reforms.

Over3,000 inmates were releasedas a result of the law, and it will be a good start to future Biden efforts. A June 2020Associated Press poll foundthat 94 percent of Americans support at least some changes to the criminal justice system, and it has become a key areaof agreement between libertarians, progressives, and conservatives.

The social justice protests of the last few months will add plenty of heat to Bidens team to hasten change.

When it comes to revitalizing our economy still in the thralls of COVID, one achievable policy area is occupational licensing reform, clearing the barriers for millions of Americans to achieve their entrepreneurial dreams without the red tape of government.

Reducing the number of occupations that need licenses overall, but also ensuring that licenses are valid nationally would help push the least well-off into the middle class. As the work of the Institute of Justice has proven, theserestrictionsmost often harm the working poor.

In 2015, President Obamas own Treasury Department issueda reportarguing that licensing requirements raise the price of goods and services, restrict employment opportunities, and make it more difficult for workers to take their skills across State lines.

Democratic governors in Pennsylvania and Montana as well as Republican governors in Arizona and Utah have passed legislation enshrining reciprocity for occupational licenses, erasing the notion that a license obtained in one state should be invalid in another. Removing federal barriers would be the next key ingredient.

One of the more difficult areas for Bidens administrations outreach to Trump voters will be that of trade.

Economists from across the political spectrumoverwhelmingly supportfree trade because theyunderstandthat international trade is not a zero-sum game, but a mutually beneficial exchange. Its a free market applied globally. But that wont convince the former factory worker in Ohio or Pennsylvania who checked Trumps name at the ballot box.

Trump made his name as a stalwart against China, and it is true that there is a reason for concern, especially when it comes to intellectual property theft and the long arm of the Chinese Communist Party.

But the fact remains that Trump Tariff Man trade wars have been disastrous for all of us.

A 2019report by the Brookings Institutionestimated ongoing trade wars cost the U.S. hundreds of thousands of jobs and potentially billions in economic growth. Washer and dryers, for example, are now12 percent more expensive nowthan before Trump waged his trade war.

Tariffs slapped on other countries, we should remember, are essentially taxes on American consumers. That message needs to be top of mind for Biden and his appointees if they want to restore prosperity.

Policies and ideas matter, and now is the time to contribute to that. Skeptics of governmental power will have all the reasons in the world to oppose and restrict Biden, but we should at least promote the ideas that we know will galvanize support across all of our society.

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Biden Can Channel Libertarian Ideas to Woo Some of the Trump Coalition - InsideSources

In brief

Former presidential candidate and libertarian Ron Paul thinks that the best way to deal with Bitcoin is to legalize it.

The ex-Libertarian Party congressman for Texas today said on the Stephan Livera podcast that he is interested in the cryptocurrency because it is not a creature of the governmentbut he added that the government was watching the asset very closely.

Bitcoins legal status in the US depends on different state laws, rules and regulations surrounding the cryptocurrency, which are constantly changing.

Ron Paul wants to make Bitcoin legal. I thought the important thing is that we should do whatever we can to make it legal, he said. I wanted to make it legal from the start.

Let people make their decision, he added.

In the US, a number of statessuch as New Yorkhave strict regulations surrounding cryptocurrencies. But most still havent legislated on cryptocurrency.

Ron Paul argued on the show to not even tax the assetbut thats unsurprising considering that the libertarian is against taxes in general.

I dont even believe in the IRS, he boasted, adding that it was illegal to own gold up until 1975something he doesnt want to happen to Bitcoin.

So that's why, you know, I got into politics, and that's why I've remained the skeptic, he said.

The perfect system is freedom of choice, then you and I can decide exactly what we should use as our monetary system.

It doesnt look like Bitcoin will be banned in the US anytime soon, but one thing is for sure: regulation is coming.

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Libertarian Ron Paul: Legalize Bitcoin and Abolish the IRS - Decrypt

Its hard to belong to the Republican Party because of Donald Trump and Corey Stewart. Its impossible to belong to the Republican Party ofSidney PowellandLin Wood.

It is impossible to belong to the Republican Party of Amanda Chase who has more in common with your average Republican than she does with Abraham Lincoln, Edmund Burke, or Calvin Coolidge. State Senator Amanda Chase has brilliantly and cynically chosen to encapsulate the spirit of mass hysteria, of an actual mental health crisis, in order to rise to power.

If she follows through on her threat to run as an Independent, itll either be the final waning of her star or a death blow to the RPV. The white nationalist populists will support primaries now after years of demanding a convention. Establishment folks switched their votes to conventions. At least we can all ignore principled arguments for one or the other and accept that either side will choose the likeliest path to victory.

To my Chamber of Commerce Republican friends, Senator Amanda Chase better reflects the average Republican voter in Virginia than you do. Some of this is my fault.

I moved to Virginia with libertarian principles and came in contact with TEA Party leaders like Waverly Woods. I wrote vociferously on behalf of Congressman Dave Brat against Eric Cantor.

I warned Brat against Trumpism, but he was smarter than I was. He knew he couldnt stand on principle against the Trumpers and survive. Trump flipped enough educated white voters to the Democrats to destroy a Republicans chances in the 7thDistrict.

Even a once staunchly libertarian candidate like Nick Freitas, who went all-in on his bizarre support for an authoritarian like Donald Trump, was unable to pull off a victory there. I will say that I am beyond pleased to see Delegate Freitas Facebook feed return to the poised, principled, libertarian and constitutionalist tone I had grown so accustomed to.

What the Trumpublican Party represents and what your Republican Party now is, is a monster with no morality, no philosophy, no reality, and no core. It can evolve and change, shift and morph, acclimate itself to whatever fake QAnon conspiracy is in fashion for a split second on the internet. How can you compete?

These people dont believe the media. They dont believe the scientists. They dont believe the experts or the political or bureaucratic class. They dont believe in anything except skeptical, radical disbelief. These are realities that a theologian, philosopher, and economist like Dave Brat couldnt harness. There was no way someone as educated as he could hold the hearts of those so opposed to education as they.

People like Shaun Kenney and Brian Schoeneman tried to warn me and I laughed at them. Lee Pillsbury has been asking me to write an apology letter to Eric Cantor for years. Im not sorry for supporting Congressman Brat, but I am sorry that his campaign spawned a populist movement that proceeded to wreck the foundations of the Republican Party in Virginia.

At the time, I figured they were just more mindless examples of the corporatist duopoly trying to make money off of a corporately driven Republican Party. I didnt listen. Im still not sure I was wrong about their motivations, but Im 100 percent certain they were right about me.

I didnt know what I was talking about. I didnt know who I was working with. I didnt see the nationalist and populist undertones of my friends in the TEA Party movement. Just about everything they told me was happening, happened. And I mocked them for it. I laughed at them because they saw me and the movement I had associated myself with more clarity than I saw myself.

Wow was I wrong!

Im sorry.

I dont and wont support the corporate Republicans. I wont support trickle-down economics. I feel as though there really is something harmful to big government supporting big business while the little guy gets left behind. But let me admit this, to all my libertarian-leaning friends still trying to make something of their involvement in the Republican Party: If you think that you can work with these nationalists and populists and faux conservatives and keep your freedom, retain your self-respect, and support liberty, then you are me five years ago reading an article written by you five years from now.

Wake up.

These people deprived us of Dave Brat. These people deprived us of Denver Riggleman. These people have cost us statewide election after statewide election, and Im not coming back.

However. Im over 40. You dont need me. You need young people. Dont keep making the same mistakes. Dont keep embracing hysteria. Embrace reason, science, good government, good policy, and for the love of God be smarter than the other guys. You probably already are!

Steven Brodie Tucker is a Senior Contributor at Bearing Drift.

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The Republican Party of Amanda Chase Bearing Drift - Bearing Drift