How the Nationwide Structure Heart “Structure Drafting” Mission Revealed Potential Areas of Consensus on Constitutional Reform –

64 - Free Minds and Free Markets

The National Constitution Center recently published my article describing how the NCC’s recent Constitution Drafting Project highlights some potential areas of cross-ideological agreement on constitutional reform. Here is an excerpt:

The National Constitutional Center recently conducted a fascinating exercise that brought three groups together to create their own revised versions of the Constitution: a conservative team, a libertarian team, and a progressive. Each team included prominent scholars and legal commentators associated with their respective camps. The results showed a much greater convergence on key issues than would have been expected in our highly polarized times.

All three teams agreed that the 1787 constitution should be revised and not entirely superseded, that the power of the president should be more strictly limited, that the state and federal government should largely, if not completely, be relieved of their “sovereign immunity” from lawsuits should be exempted and that immigrants should be eligible for the presidency. It is also likely that the three teams will agree on the need for tenure limits for Supreme Court judges, although the libertarians did not actually include this idea in their constitutional proposal …

The main points of consensus between the teams could potentially be the basis for future constitutional amendments which, given the potentially broad support they receive, have a real chance of entry into force.

Even the ideas that the three teams agree on would face an uphill battle in the constitutional amendment process, as enactment usually requires an overwhelming majority of two-thirds of both congress houses and three-quarters of states. The alternative change mechanism through a convention of states is comparatively burdensome. It is clear, however, that some aspects of the Constitution need reform. The NCC Constitution drafting project could potentially be the first step in the admittedly difficult process to achieve it.

The article expands on my previous blog post on the Volokh Conspiracy about the NCC Constitution Drafting Project.