Could we ever agree on a new constitutional amendment?

Ilya Shapiro, Washington Examiner, 9/22/22


As we reflected on the 235th anniversary of the framers’ decision to finalize our Constitution and send it out to the states for ratification — Constitution Day was this past weekend — I was finalizing the latest step in another constitution drafting project. For several years now, I’ve been a part of the National Constitution Center’s convening of three teams of experts, labeled progressive, conservative, and libertarian, to make whatever changes to our founding document we felt necessary or to scrap the whole thing and start over.

I was the captain of Team Liberty, as we called ourselves, alongside Timothy Sandefur of the Goldwater Institute and Christina Mulligan of Brooklyn Law School. We thought our job was easiest because all we really needed to do was add “and we mean it” to every existing provision and call it a day.

We ended up doing a bit more than that, though, which you can read about elsewhere. But the interesting part for practical purposes is what came next. The NCC asked our three teams to come up with joint constitutional amendments based on commonalities among our draft constitutions.

I was skeptical. At a time of political polarization and decline in popular confidence in the basic institutions of our governmental system, would it be possible for scholars with such disparate values and thus visions of the best political structures to come up with anything of substance?

Indeed, there was little overlap among the major reforms we were proposing, and a lot of the suggestions made by Team Progressive and Team Conservative were technocratic “good government” reforms, which Team Liberty eschewed in favor of just advancing our theory of government. Still, the conservative team leader, Arizona State University law professor Ilan Wurman, took a stab at identifying the areas of greatest overlap and proposing discussion language accordingly. We then held a virtual convention to hash things out and see what compromises could be wrought.

Having gone through the exercise, it would be utopian to suggest that we bridged fundamental gaps in political philosophy and values to reinvent the Constitution for the modern age. But we did come to more agreement than I was expecting — largely over those “good government” areas that don’t advance either a libertarian, progressive, or conservative ideal. Of course, like the lawyers we all are, we also argued over precise wording and comma placement, as well as recognizing the occasional need for either silence or strategic ambiguity.

The first thing we had to do was to agree on voting rules. We wanted to avoid 2-1 team votes while also not being locked into a seemingly unrealistic demand for unanimity. We settled on requiring at least a 6-3 margin to agree on something, with representation in that super-majority of at least one member of each three-member team. (The conservatives had four members but three votes; one of them couldn’t attend the convention anyway as a result of jury duty of all things!)

In the end, while there was little agreeing just to agree — all of us delegates were pretty strong-willed — and not every part of each provision gained unanimity, we approved five amendments with a high degree of consensus. The most significant ones were (1) Supreme Court term limits and (2) allowing for congressional vetoes of executive and regulatory actions.

The first would cap high-bench service to 18 years while fixing that body at nine members. This was not something Team Liberty originally considered because it doesn’t necessarily advance libertarian (or other ideological) goals, but we approved it because it would likely have the benefit of increasing public confidence in the judiciary. Vacancies would no longer arise at politically timed moments, and there would be no more morbid health watches over octogenarian justices. But anyone hoping that this reform would solve the roiling debates about the court is naive. Indeed, with each presidential term getting two Supreme Court slots and each senatorial term guaranteed to cover three appointments, the court would figure even more significantly in election campaigns and confirmation battles would be no less fierce.

The second proposed amendment allows Congress, without presentment to the president, to create a legislative veto. That could do much to check what has become an imperial presidency and an administrative state that’s become a branch of government all unto itself — if a bill creating this veto can ever overcome a filibuster.

The other amendments were: (3) eliminating the natural-born citizen requirement, which was the easiest point of agreement but also the least significant change for practical purposes; (4) making it somewhat easier to amend the Constitution, which no doubt gives each drafting team hope that at some point in the future their greater vision can prevail while still requiring ratification by the high bar of three-fifths of the states or three-quarters of the people; and (5) clarifying the impeachment standard as being “for serious criminal acts, or for serious abuse of the public trust,” while raising the bar for impeachment to three-fifths of the House and lowering it for convictions to three-fifths of the Senate.

On this latter amendment, I was disappointed that we didn’t make it even easier to impeach, remove, and disqualify public officials, not just presidents: Impeachment is an inherently political judgment, so if a supermajority of the Senate thinks that someone is “unfit for office,” however each senator wants to define that, including incapacity and even perhaps incompetence, that should be enough. But we couldn’t get buy-in on that.

So where do we go from here? In this time of high political polarization and low societal trust, I’m pessimistic that any amendment could survive Article V’s high bar. But that doesn’t mean that this process was pointless. My hope is that our little exercise contributes to showing our fellow men and women that, even in these tense times, it’s possible to empower the better angels of our nature.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Courtnow out with an updated paperback edition, and writes the Shapiro’s Gavel Substack newsletter.

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