Caroline Fredrickson on the Progressive Constitution
2021-11-22 · Guest: Caroline Frederickson (Georgetown University law professor) · 52:44
The Progressive Team’s rewritten US Constitution
In this episode, Bob Zadek discusses a unique project by the National Constitution Center that tasked three teams—Progressive, Libertarian, and Conservative—with rewriting the U.S. Constitution to reflect their respective values. His guest, Caroline Fredrickson, details the Progressive team’s methodology, explaining their decision to retain much of the original’s structural framework while seeking to make the document more accessible and reflective of modern democratic needs.
Topics: Constitutional Law, National Constitution Center, Progressive Constitution, Separation of Powers, Legal History, Judicial Reform Speakers: Bob Zadek (Host), Caroline Fredrickson (Guest)
Introduction to the Constitution Drafting Project [00:07]
Announcer: You’re listening to the Bob Zadek Show, a full hour of libertarian discussion for the smartest guests on radio. Live, spontaneous, and thoughtful. It’s the show of ideas, not attitude. And your calls are welcome at 424-BOB-SHOW. Now, your host, Bob Zadek.
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Thank you so much for listening this Sunday morning.
A short while ago, the National Constitution Center—which is an organization funded by Congress and founded to promote, uh, the study of our core founding document, the Constitution—it promotes the study and it does a wonderful job on educating the public about the Constitution. They are located in Philadelphia, Pennsylvania, a wonderful place to visit. Well, the National Constitution Center, uh, initiated a fascinating project, which has now been completed.
The National Constitution Center, uh, uh, brought together three teams—that’s how they were called—three teams of distinguished, uh, students, law professors, uh, of who study and teach the Constitution. They brought together, uh, distinguished scholars to, uh, one whose oriented—one team’s orientation was progressive, that’s descriptive enough. Another was libertarian, and another was conservative. And each team was asked to rewrite the Constitution so that it would be the ideal constitution reflecting their values.
The work product is fascinating. It was thoughtfully done. Studying the three draft constitutions tells the reader so much the reader would otherwise not have a convenient way to learn about how a constitution could have been drafted, what might be wrong—“wrong” is a strong word, uh—with the existing Constitution. What in what way should the Constitution be fixed? The work product is fascinating.
Uh, two weeks ago, I had, uh, Timothy Sandefur as a guest on our show. He was a team member for the Libertarian Constitution, and this morning I am honored, honored, uh, beyond my ability to say it, to have Caroline Fredrickson join us this morning. She’s a distinguished, uh, professor of law, uh, at Georgetown University. She’s a senior fellow at the Brennan Center for Justice, and she recently, uh, was an appointee by President Biden to his commission to study the Supreme Court. Caroline was a team member on the Progressive Team and was gracious enough to agree to join us this morning to explain to us the changes that the Progressive Constitution made from the work product of the founders as amended up to the current date. And this will help us understand, uh, better than perhaps any other hour one can spend, what the progressive view of how America should be governed is, what the goals are for improved governance in America, and the relationship between citizens and its government.
Caroline, welcome to the show this morning, and thank you so much for agreeing to give us an hour of your time.
Caroline Fredrickson: Sure. It’s a pleasure to be with you.
The Progressive Team’s Approach to Structural Reform [05:00]
Bob Zadek: Now, Caroline, when you went about rewriting, revising—whatever, whatever verb we want to use—the Constitution, did you feel that you were correcting mistakes the founders made? Or did you feel that you were merely updating the Constitution, having been written in 1787, to reflect life on the ground in America in 2021? Or were you actually making changes because you felt, uh, that your team’s approach to governance was different than the founders’, and now you have a shot at suggesting a different orientation? Can you label or identify how you saw your task?
Caroline Fredrickson: Well, it’s a good question. Um, you know, it was a complicated endeavor, and, and, and, you know, that was the big question we faced right at the beginning was, you know, how do we, how do we embark upon this big project?
Um, there were a few, uh, things that we had in mind. And one was that there were, um, the, the original draft of the Constitution as it was drafted in 1787, um, you know, certainly had its strong parts. And, uh, and one of the things that we, we were wanted to continue was the structure of divided government, because we agree that that is a precondition for our constitutional democracy, along with robust protections for individual rights. And so, you know, our thinking—and as we had discussed before we got on the air about why we just didn’t start with a whole new draft—was in part was that. Was that there was, you know, some of the, the—that some of the structural elements of the Constitution were exactly things that we wanted to continue.
You know, there was another, um, uh, overarching, um, aspect to this, um, that I think is important to understand, which is, um, you, you had mentioned how reading the different constitutions that were drafted by each of the groups, um, um, gives insights into sort of different, um, uh, uh, uh, um, perspectives on our Constitution, um, and on our—on constitutional governance in the United States. Um, uh, you know, we were, we were conscious of the fact that there are a lot of people who might come to this, um, project and, and, you know, they’re not, they’re not constitutional law professors and, um, so may not be, you know, steeped in the current debates or the historical debates over different parts of the Constitution.
We thought it was actually going to be a much more, um, useful exercise, um, for the kind of people, um, who would be drawn to this and be interested but weren’t necessarily going to have spent their lives, as you have in the law or as I have in the law, um, and therefore be somewhat attuned to the kinds of debates that, uh, go on, um, uh, in the legal profession over different aspects of the Constitution. Um, so the, so the—the, you know, as originally envisioned, um, we were going to have a lot of live, um, programs and, uh, there was going to be a big unveiling at the National Constitution Center in Philadelphia, um, and, uh, uh, uh, you know, uh, big ability for the public to engage, um, uh, uh, with the different constitutions that we had drafted.
Now, of course, that didn’t happen in a live form; it did happen, uh, virtually. We did a number of virtual programs. There is—all of this can be found on the website of the National Constitution Center. All that being said, we wanted it to be accessible to a broader public. And so that meant it made—it made a lot more sense in a, in, in many ways, um, because it, it makes more clear what the current debates are over the Constitution than simply writing a wholly new document.
So there were those two kind of major elements to our thinking: one is that the, the original Constitution had this sort of structural divide, uh, in the government that, um, was a very useful and, uh, and critical part of the way we understand, uh, uh, constitutional democracy, but also that, um, it just made more sense also from a kind of the, um, the, uh, educational point of view. And that is such a big part of what this project was all about and certainly is, is the, the major mission, uh, of the National Constitution Center.
Bob Zadek: The, the original Constitution—and let’s include the first ten amendments, even though technically they were amendments and not part of the original. But since they were contain—virtually contemporaneous with the drafting, let’s include the original Constitution and the first ten amendments as the original draft. Did you feel that, uh, you were, uh—was the original draft, uh, before it was exposed to 240 years, give or take, of Supreme Court interpretation and before it was amended, uh, uh, probably 17 times if we exclude the Bill of Rights? Um, uh, the origin—was the original Constitution, um, did you feel you were correcting the original Constitution, or did the original Constitution—was it consistent with the values you would have wanted it, uh, to adopt, uh, before it was amended, or did you have to make changes in the original point of view of the Constitution?
And in answering, let’s please, just because it’s a whole separate subject, we all know, uh, the, uh, the great failure—most of us consider it to be a failure. It was, uh, a compromise, a political compromise on the issue of slavery. So we could spend an entire show on slavery and it’s the contradiction between the promises in the Declaration and the reality of the Constitution. But putting aside the, the issue—big issue, though it may be, of slavery—uh, do you feel the founders, um, their core values were, uh, uh, had to be adjusted by your work product, or were you pretty much consistent with their values and just fine-tuned it?
Caroline Fredrickson: Well, I can’t, you know, I find that a very hard question to answer without putting slavery aside because those were values. And so I just have to say there were, you know, certainly several sections of the Constitution that were dealt with slavery. And so, um, so I can’t, I can’t really quite answer your question that way, but I would say, um, we think their vision about structure of government, um, certainly, um, was worth continuing.
Would you like the summary of the next segment of this episode?
Caroline Fredrickson: And the idea of separation of powers, um, uh, and federalism, um, and you know, sort of the divide between the different branches and, and the, um, you know, sort of vertical and horizontal, um, uh, idea that that, you know, that government, um, can, you know, we, we, we have a system of checks and balances. Um, it was visionary, it was, it was radical, um, and that is something that we continued. I, you know, I think if you get into values that, that it’s just hard not to talk about slavery. So I think we should just, as you said, we’re, we’re, we’re, we’re not gonna talk about it, um, to, to a great extent. So let’s, uh, let’s just say that we, we, we, um, we kept that the structural element, um, um, from the original Constitution.
Natural Rights and Robust Democracy [10:57]
Bob Zadek: I hope I’m not—what I’m about to say doesn’t read too much into your commentary as you explained to, uh, readers, uh, what you were trying to accomplish, um, and what adjustments you were making. But there was, it seemed to me, uh, at least when I read it, there was—I’ll say a tension, but nothing that dramatic—between protection of natural rights. I’ll use the natural law concept: natural rights, the rights of every human being that many believe human beings have simply by dint of their humanness, uh, right to travel, right to, uh, freedom of conscience and the like. Many of those rights are embodied in the Bill of Rights and they are enumerated, they’re expressed, and there are, of course, other rights in the Ninth Amendment that are captured as unenumerated rights.
You, um, expressed in, in commentary, not—and a bit in the text—that the best way to protect those rights is through a more robust democracy, which, when I read it, I wasn’t sure how that would work. Does—how does that—what is the protection from the majority simply because with enhanced democracy, it sort of means the subtext is majority rules? What protections are there for the minorities—whatever, and I don’t mean just racial minorities or religious minorities—um, people who are in the 49% of the vote on any issue? What is the protection for the minority, the 49%, on their basic rights? How does your constitution protect, if it does, those basic rights against the, uh, will of the majority which would compromise those rights?
Caroline Fredrickson: Well, I mean, I think, you know, as, as, as we said in our introduction, um, we really do believe in democracy, and the, the one of the major elements of our draft of the Constitution is to provide, uh, much more robust protections for democracy, um, so free and fair elections. So, I mean, you talk about a 49%, um, uh, as if it was sort of a, uh, solid block. Um, you know, in, in the way that our elections are structured, you know, there, they’re—it’s if they are actually run in a, in a free and fair way, all Americans have the right to vote, um, uh, that we don’t have gerrymandering, um, that we have uniform, uh, requirements for voting across the country. Um, uh, there would be, um, you know, people drawn to different, um, uh, policy proposals and different politicians based on, uh, uh, uh, at, at different times. I don’t think it, it actually, um—I think democracy is the best guarantee of that, that there would be, uh, uh, a variety of different protections.
But, but we do, um, we don’t eliminate the Bill of Rights. Um, so we do also, um, ensure that there are key protections, um, in, in, uh, uh, uh, that are, uh, part of our constitution, um, fundamental rights, um, rights of conscience, um, uh, which include, uh, uh, religion but also freedom of conscience, um, uh, for those who may not be religious. So this, I would think, would appeal to libertarians. We go back to James Madison’s original conception of freedom of religion and freedom of conscience or thought. Um, uh, we also, um, uh, provide, uh, protections for, uh, uh, uh, uh, sort of an Equal Rights Amendment, so gender, um, sexual orientation, gender identity. Um, uh, we reaffirm protections for minorities based on race. Um, so we, so you know, we have, um, a whole robust, um, protections, um, but we do not—I think what people might have expected that, um, uh, in the sort of caricature of what progressives might do with it, provide a contest of rights and the Bill of Rights would become, you know, uh, a hundred rights long or more.
And we, we believe that, you know, you anchor key rights, um, in, in the, in the document, but you don’t try and, uh, and enumerate every single one. That most—much of it, most of it is left to the political process, and the political process is one that we, um, ensure in our constitution is one that is, is free and fair, um, and that, um, voters are actually, um, uh, that there aren’t, um, uh, uh, unfair limits on certain groups of voters, um, to participate in the process, that there aren’t, uh, these exaggerated gerrymanders that happen now. Um, I happen to live in Maryland, um, and, um, if anybody wants to look at the maps of Maryland, you could see a certainly example some absolutely crazy-looking districts.
Um, we also, um, uh, carve out campaign fine—reasonable campaign finance rules from, uh, the, uh, freedom of speech in the First Amendment, um, uh, to ensure that what we have now is that, you know, the, the, the, uh, abuse of, uh, of money in the political system to, um, change outcomes, um, uh, and we allow reasonable regulations, um, so that, um, we can actually live in a system that’s not as corrupted as it is.
Campaign Finance and the General Welfare [17:15]
Bob Zadek: The—is the—as to—I know, uh, I suspected you were going to mention, um, campaign finance reform, um, and the, the Supreme Court decisions that trouble, uh, many people in the country, um, predominantly but not exclusively progressives. But I, uh, I want to just focus on that just for a moment because freedom—of course, freedom of the press is enshrined in your constitution as it should be. But the thought ahead on that issue—and the reason I’m raising it now is because of the concern about money—a, the press is for the most part, um, uh, an activity carried on by private business, um, and businesses have power because of being a business.
So what is the—why is there no fear of corruption if power—if the power of the press, which is nothing other than a private corporation carrying on a specific business activity among others, uh, why should that business activity enjoy the power to use its money to promote its worldview and not a corporation which is a manufacturing company which is promoting—which is using its money to promote its business activity? Why should the, the core activity of the corporation, um, matter in terms of its influence?
Caroline Fredrickson: Well, so we frame this in a specific way to say that, um, Congress shall have the power to establish by law regulations, uh, uh, uh, by law regulation of the financing of campaigns for elected office, providing—provided that such regulations are reasonably aimed at ensuring that all citizens are able to participate in elections meaningfully and on equal terms. Um, so I d—I, I don’t think, you know, we are—we’re not restricting the right of, uh, you know, c—manufacturing companies can certainly have their point of view. The question is, um, can Congress pass regulations that are, are narrowly tailored and and reasonable, um, to ensure that we have a system, uh, that is clean?
So we don’t enshrine a particular, um, approach to this in our constitution, but simply allow Congress to go back and consider, uh, you know, for example, some of the regulations that it’s had in the past, um, that have been, um, dismantled by the current Supreme Court. Um, uh, reasonable limits on, on, on donations or, or expenditures, um, more—much more transparency. Um, there are a whole number of things that, that, that might be done, um, uh, uh, public financing of campaigns, uh, small donor matching. Um, so you know, I, I don’t—I, I don’t think it’s really, um, you know, that the, that what, what, uh, Congress might end up doing or, or state governments, um, would be, um, something that would be, um, would have to fit within the, the, the language that we have crafted.
Bob Zadek: So, so you focused on pretty much, uh, what you, uh, would you and many believe to be an, an abuse—a wrongheaded, perhaps, Supreme Court decision, um, in allowing money to have what many people believe to be excessive influence, um, and money is—the spending of that money is anti-small-d democratic, and you want to empower Congress, uh, to limit it.
Now, an issue that I looked for when I read your work product, um, and I’d like you to help us understand it, and that is—I’ll give the one word and then I’ll expand it a little bit for our audience. The one word is federalism. I looked for, um, the progressive view of, um, the allocation of power between the federal government and state and local government. I couldn’t find a lot other than—we may discuss this as a separate topic—the, um, expansion of the phrase “general welfare” which exists in the original Constitution, which there has been a discussion forever about whether “general welfare” is a special grant of power or whether it simply modifies other grants of power. So if you could give us the big picture and whether it’s your view or your team’s view or your work product’s view of what you have done, if anything, to adjust or to leave alone that allocation of power.
## Federalism and the General Welfare [22:22]
**Bob Zadek:** Originally states and localities had broad what's called police power—a somewhat misleading label. They had the power, uh, uh, the plenary power, uh, on the health, welfare, and safety of the citizens, rather than the federal government. That power has been, uh, gradually over time moved to the federal government, uh, extensively. Have you left it alone? Have you encouraged the trend, the movement of power to Washington, or how does your Constitution feel about that allocation of power and responsibility?
**Caroline Fredrickson:** We don't, um, uh, make major changes, um, except as you mentioned, the, the, the language that we insert about the general welfare is meant to respond to, um, the, the fact that, um, there are times when there are major problems that are national in scope that have been difficult or even impossible, uh, to address through state or local action, um, and we wanted to clarify—although we think it's already evident in the current Constitution, but, um, but fear that the Supreme Court doesn't necessarily see it that way—they wanted to clarify that Congress can actually, um, take such action. So that is—uh, we saw that as more of a clarification than, um, actual, um, uh, uh, um, making a major change into the structure of federalism.
## Reforming the Senate [24:45]
**Caroline Fredrickson:** The other, the other, um, point, however, that, um, that is worth mentioning is that we do change the Senate. Um, now there are some who think the Senate should just be abolished, um, um, but, um, we certainly did not do that. But we did make some adjustment to, um, to how the Senate, uh, is structured to make it more representative, um, um, because we, you know, we think as the nation has grown, it's, um, the Senate, which, um, has always been somewhat, uh, out of sync with where the population is, um, has become, uh, extraordinarily so, where you have the, the, the ratio of population to senators from a state like California to a state like Wyoming is so radically different, um, and gives Wyoming so much more representation now. So, as I said, we did not eliminate the Senate and we did not eliminate, um, state representation, um, but what we did do, um, was ensure that every state would have one senator and then, um, adjust the other, uh, uh, um, senators, um, based on, um, population. So you would continue to have the Senate, uh, representing the states, but it would also give somewhat more, um, to California than it would to Wyoming.
**Bob Zadek:** Uh, I'm so glad you expressed it the way you did because, um, your issue was you were, uh, explaining to us that you were correcting the undemocratic—that is, reflective of the population as a whole—the undemocratic Senate. You are making it more democratic. Um, and by the way, of course, you, uh, expressly embraced the 17th Amendment, um, which trans—which did a—was a first step in that direction, of course, back in 1913 when it, it changed, uh, the to the direct election of senators from senators being el—appointed by state legislatures. Uh, we may get into that; we may not have time.
But as to the undemocratic nature of the Senate, of course, there's always a discussion on any topic whether that is a feature or a flaw. And the founders, I think, would have said that was that—somewhat undemocratic, that is, not reflective of the population as a whole. The undemocratic nature of the Senate was intentional—that the people had their house, the House of Representatives, it was called the People's House, and the Senate was vaguely, vaguely similar to the House of Lords: the wise men, a step removed from the, uh, passions of the moment, uh, from therefore the political process, the more thoughtful body. That was the structure. Now you can say that just doesn't work. It's not democratic enough—a perfectly appropriate, uh, point of view—but I just wanted to mention that, um, what you are doing is you are to some degree, to some degree, rejecting the founders' view in that they felt it necessary to have a legislative body that was not as subject to the passions of the moment, and you are making it somewhat incrementally more subject to those passions. That's a legitimate discussion; it's for the public to decide. But, uh, is that a, a fair characterization of what—?
**Caroline Fredrickson:** Yeah, no, I think that's a very fair characterization. I'd also say that part of, you know, the, the, you know, looking at the history of the adoption of the Constitution, part of the way, part of the reason for the Senate was part—partly a compromise in order to bring on board the Southern states to vote for the adoption of the Constitution. And so, um, you know, as I said—as you set out earlier—we're not—we could spend many a show talking about slavery and the impact that it had on the Constitution. But, um, the Senate, the Electoral College, um, there's also a certain relationship, um, between these topics.
Um, but you know, as we said, um, we do see value in the federal structure, um, which we think, um, adds to government accountability, facilitates policy experimentation. Um, but right now we have gotten to an extreme, you know, again, because, you know, the people hadn't, um, there hadn't been the, the—well, there wasn't a state of California at the time, and, uh, it certainly there was no, uh, sense that the states would become so completely disproportionate in terms of population size. Um, and so, you know, as we—as you mentioned, it's more of a tinkering than it is a radical change in order to, um, uh, remedy what we think are some of the extremes of the current system, where, you know, again—I mean, I not to pick on Wyoming, I could pick, you know, North Dakota—but just to say that that, um, something that was a bit different when you looked at a state like New York and a state like say, um, you know, South Carolina in, in, in the late 1780s, um, now when you look at the difference between, you know, a state like Wyoming and California, is just so many more, um, the magnitude of the, of the difference is so much greater. Um, so we do, um, uh, make an update and a correction, um, an improvement on the original Constitution in this regard.
## National Scope and Congressional Power [29:15]
**Bob Zadek:** Now you—we going back to, uh, discussion of a few moments ago on general welfare, you, um, you made it clear that you brought—in my opinion, you broadened the express power of Congress because you empowered Congress to legislate, um, and I'll give a quote just so the audience knows what got my attention. Um, the phrase is—uh, this is in a specific grant of power to Congress to legislate for the general welfare. There's the phrase I mentioned a few moments ago, and here comes the key: "insofar as such action is necessary to address the problems that are national in scope and that are unlikely to be addressed adequately by state or local governments."
Wow. "Adequately addressed," "adequately," "necessary." Um, I tried to apply that or read into, um, the minds of your team. How do you apply that, just to give examples of what these words mean in practice? Um, in your opinion, would these words expressly empower Congress to, for example, set a national minimum wage, or a fifty-five mile an hour speed limit, or determine, uh, the legitimate nationwide legal drinking age? Um, those everyday activities—uh, would Congress be expressly empowered to legislate in those fields, or would it be implied, or would they not have the power? And I'm not—because those are important, but they're representative.
**Caroline Fredrickson:** Right. You know, as we say in the language, it has to be necessary. Um, it has to be an area where there—states and, and, and localities are not capable of, uh, uh, of addressing the problems. Um, but I think, you know, we do have an, uh, you know, a minimum wage, the Fair Labor Standards Act; that's a national minimum wage. Um, uh, uh, what we really attempt to do here is is, you know, as I said earlier, we believe that the Congress already has the power to address national problems. Um, uh, problems that cross state lines, um, like the pandemics, for example, um, uh, uh, other, uh, issues where there are—one state could simply not, um, uh, you know, for example, pollution. Um, uh, there are things that, that you need a national government to be able to address.
We believe this is a clarification because we think the Supreme Court, um, has been getting it wrong, um, that it has a very cramped view of congressional authority. Um, and so, um, uh, you know, I think that that, you know, again, these—each of these or any issue would have to be grounded, um, in, uh, in understanding, uh, uh, that the—there was this, uh, a national problem that, uh, was, um, important, that needed to be addressed, um, and that, uh, a single state would not be able to, um, be responsive to addressing this problem.
**Bob Zadek:** You said something just now that really piqued my interest and my curiosity. Uh, the phrase was "national problem." And here's why I focused on that, why my mind was drawn to that when you use that phrase. Is something a national problem if each state has it? Let's take minimum wage. Now, that is only national if you declare it to be national. But it's—minimum wage is as personal as it can be. It affects one person.
## Defining National Power [33:56]
**Bob Zadek:** So help—just help me understand and our listeners—when you identify something as national, is it national because it affects everyone, or national because the problem can only be solved globally, like or nationally, like a pandemic, which crossed—which has no state borders? But minimum wage—I'm not picking minimum wage because it is the most important issue of the day. But so the answer is what Bob thinks is kind of irrelevant in the—in national order. Determination that sets a national minimum wage as a floor, and states are free to go above it.
**Caroline Fredrickson:** Um, that's the state of the law now. So that's why, as I said, um, what we attempt to do is clarify that kind of understanding. There are, you know, that the—there certainly are challenges like in sh—you know, during the Great Depression, of trying to ensure that there was, uh, uh, there were policies that were gonna enable us to come out of that, um, uh, uh, uh, terrible time, um, uh, and they needed to be addressed nationally. Um, Congress has to do its work. You know, it does its in—it studies and it provides analysis, um, to provide the background for why it takes such action. Um, it's called creating a record, um, as you know, you're a lawyer, right? So, um, so we envision that same kind of process for, um, you know, I can't enumerate every single possible area that might, um, uh, require a national response, um, but certainly when you have a pandemic, I think that's kind of the—the one of the most clear, uh, uh, areas where, uh, we need to have—Congress needs to be able to act, um, to ensure that, um, uh, that action is taken, um, at early enough in the process to—to keep us safe and to keep people from dying.
## The Imperial Presidency and Executive Power [36:45]
**Bob Zadek:** What have you done—um, there's been a lot of discussion, as we all know, uh, I suspect including most of my listeners, about—uh, use the phrase "imperial presidency." The president has been, uh, able to exercise far more power than the founders envisioned, than the express language of the Constitution, even as amended. That has been, many people say, an abdication by Congress, uh, delegating too much power to the administrative state. And Caroline, we'll discuss the administrative state in a moment. But have—was your team troubled by current affairs, 2021 America, the power of the presidency? A, were you troubled by it, and B, um, whether you were troubled by it or content with it, what does your constitution change in that balance of power between the legislative, the executive, and ultimately the judicial branches?
**Caroline Fredrickson:** Well, that's a—that's a great question. Um, you know, I think—I think it's hard, it would have been hard for anybody not to have been troubled by a few of the past years. Um, but, um, but I m—our, um, uh, changes to the Constitution in this regard, um, uh, were not prompt by cur—prompted by current events, but really by, uh, sort of an overall historical and, uh, constitutional analysis of the Constitution. I think this is a really interesting area because of all the places, um, in, uh, in the sort of constitutional drafting project where the three teams most converged, it was really around limitations on executive power. Um, so the conservative team, the libertarian team, and the—and the progressive team all, um, came separately to the realization that, um, we needed some more limits on presidential power. Um, so, um, all of us, um, uh, all three teams looked at, um, it making it clear that impeachment, um, of the president can actually, um, occur without needing a criminal act, um, because then there was a lot of, um, uh, obfuscation of this point. We think that, you know, um, I think all three teams thought it was the law beforehand, but because of things that had been said in the general debate around the two impeachments of Donald Trump, um, it was clear that there was needing to be more clarification, um, uh, to say that abuse of the public trust, um, which is really the original conception of impeachment, um, um, should be made clear and, uh, uh, explicit in the Constitution.
Um, we also strengthened Congress's oversight powers, um, uh, and the, um, um, interestingly, um, both the progressive and the—and the conservative teams, um, agreed that we should replace, um, the Electoral College with a national popular vote, um, and, uh, support a legislative veto. Um, so, you know, there were certainly—there are other areas that—and we could talk about. We—we—we had wanted a, uh, two-thirds vote for an Attorney General so that we could actually have an Attorney General that was not, uh, necessarily, uh, uh, so partisan, um, and, um, and, you know, we addressed—um, again, there was a lot of commonality. The three teams all agreed on term limits for the Supreme Court. Well, the libertarian team supported it but didn't put it in their Constitution, um, but we all—uh, but the conservatives and the progressives put 18-year term limits for Supreme Court justices in the Constitution. Um, so there were some real areas of, um, of convergence here, um, but especially, um, as I said, around, um, limitations on presidential power.
## Reforming the Supreme Court and Term Limits [42:15]
**Bob Zadek:** Caroline, I'm gonna make one, um, humorous, I think, observation and just ask you a question, uh, but it's very rhetorical. Of all the weighty issues that you dealt with in such an interesting fashion, preservation of the post office? Oh my goodness, I was hoping that wouldn't be there. Uh, I mean, don't you use FedEx? Uh, I mean, so don't—please don't respond. It's a waste of air time for us to debate whether or not the post office should be enshrined in the Constitution. Uh, I'll just say give me a break, uh, but please don't respond. I'm doing that just to throw in a little levity, perhaps constitutional levity into the conversation. Um, I didn't—in your constitution, uh, tell us a bit more, only because, uh, we have the benefit, uh, of your thinking and your work on President Biden's, um, uh, commission to review the Supreme Court. Uh, tell us just as a separate topic, just very briefly, what did you do, uh, to correct—uh, obviously during this discussion, you had some issues with the structural—the structure of the Supreme Court, uh, vis-a-vis the other two branches of government.
Um, you also, uh, in your introduction, um, you complained about—um, maybe complaint is too strong a word, um, government—this is a quote—"government by judiciary as opposed to democracy." So you were a bit unhappy with, uh, 21st century America and the relationship of the Supreme Court. So what have you done? Uh, and maybe you have already answered the question with 18-year term limits. Uh, what—what else, if anything, have you done to correct what you see to be the imbalances now in the power of the Supreme Court?
**Caroline Fredrickson:** Well, that is really the major, uh, element, um, which is to say, um, and—and again, I think it's worth reiterating that this was across the board for all three teams. Um, you know, again, libertarians didn't put it in their constitution, but supported—Ilya Shapiro was one of the—he's the team leader, um, uh, of the libertarians—separately, uh, supports it. I think the other team—team members also do. Um, and, um, uh, so 18-year term limits, um, would get rid of life tenure for federal judges. The way that the Constitution—most people understand, um, serving under "good behavior," um, is life tenure. Um, and it would replace it with a, uh, single 18-year terms.
Um, you know, and it—it's quite—this is something that, um, so, uh, one of the founders of the Federalist Society, Steven Calabresi, is a professor, uh, uh, a law professor, um, uh, has supported 18-year terms. I ran the American Constitution Society and I support 18-year terms. Um, and it is also consistent with, um, sort of historical, uh, terms of service for Supreme Court justices. It's only in the late 20th century that, um, Supreme Court justices started serving such excessively long periods of time. Um, and you know there are a lot of reasons. You know, some people argue that it would make the—I mean, and this is something we believe—that it would make the—the court less partisan. I mean, nobody would deny that the current battles, um, over Supreme Court justices' nominations is unseemly and, uh, unpleasant and partisan. Um, it would reduce the partisanship, uh, in that regard.
But I—you know, I think it also has a lot of—a lot to say about just the fact that, uh, the Supreme Court as it is currently, um, uh, uh, constructed has an enormous amount of power, and the idea that somebody can sit on the court for forty years, um, uh, is—is, I think, really inconsistent with, um, uh, a constitutional governance and democracy, which is not to say that we're saying that these—that—that—that Supreme Court justices should be elected. Obviously not. 18 years is still pretty long, um, but it doesn't provide, you know, sort of a seat for life, uh, in making some of the most important decisions that affect Americans, um, uh, that—and that are undoable.
**Bob Zadek:** I'll—I'll just mention in passing, not inviting a discussion, uh, John Marshall was pretty productive after his eighteenth year on the Supreme Court. Um, he was, uh, very influential, and most people would think in a positive way, and we'd be deprived of that. But that's not an argument against it.
## Criminal Justice and Sentencing [45:29]
**Bob Zadek:** I strongly support term limits that matter. Uh, you know, if we were to spend some time, we'd come up with plenty of counterexamples of justice—oh, we sure would, we sure would—time who, who were seat warmers that who could have, um, perhaps it would have been better for this country if they had moved on for sure earlier. Uh, I also would like to just thank you, just to mention to our audience, I noticed that, um, you constitutionally abolished the death penalty. Uh, there wasn't much discussion on that, uh, in any of the literature that I read in preparing for the show, but, um, I welcome that, uh, just for all that it's worth. I also noticed you seem to have, uh, constitutionally prohibited life imprisonment, which struck me as a, a little—it's sort of different. It's far less dramatic than the death penalty, of course. Um, and I didn't quite understand, uh, why life imprisonment was unconstitutional, but imprisonment for, uh, a period up to the last 48 hours of your life is constitutional. Um, maybe if you have a sentence or two, if that had any thought at all. It's not an important topic, uh, compared to the other issues, but I just noticed it and it was—I was curious about it.
**Caroline Fredrickson:** Well, I mean, we do address quite a bit of, uh, issues around criminal justice reform. It may be more productive to talk about, but because that's just, um, you know, I think just to say that, you know, sentences should be, um, rational and, and based on actual, um, terms of years. Um, uh, um, but we do also, um, uh, look at, uh, the right to counsel; um, we strengthen it in, in criminal proceedings. But we also add what I think is, um, something that, um, certain states have done, but it's a really important, um, is to recognize that there's certain civil proceedings in which, um, people should have a right to counsel because they're deal with such existential issues like loss of a child, child custody, or, or some such where, um, you know, not having a representation could be devastating to somebody's life. Um, so we, um, we did add that. I think, you know, all the groups also looked at sovereign immunity, um, which perhaps your listeners, um, are familiar with these days because it's come up a lot. Um, uh, thank you so much for raising this. Thank you so much for raising it. So we all do that there should be state and, and federal sovereign immunity should have some, um, uh, uh, limitations on it.
## The Administrative State and Democracy [50:15]
**Bob Zadek:** Um, I was a little disappointed you didn't, uh, deal with qualified immunity, but that's for another show. Uh, we don't have to discuss that; we only have a few minutes left. Um, do you have any comments constitutionally—uh, because you spent some time in discussing it in your constitution and in your writings describing the process—um, you are reasonably defensive—not defensive in that, in that way—you defend, uh, as necessary the administrative state, which is the bureaucratic, unelected fourth branch of government, which is anything from the independent agencies like the FCC and the F, the FCC and many others, uh, to just, um, other, other administrative agencies. On the one hand, you are reasonably respectful of their power they have now, but it struck me that contradicted to some degree your emphasis on democracy, because of course indirectly we get to vote on them through voting for the presidency and perhaps Congress. But aren't they sort of the antithesis of small-d democracy as you see it, um, because they are unelected, um, operate somewhat in the shadows, um, but have profound power? And we only have a coup—a minute or so left, Caroline. So if you want to comment on, uh, what you have done, if anything, vis-a-vis the administrative state, we have about a minute.
**Caroline Fredrickson:** Well, we just make it clear that Congress can actually establish agencies. To roll that back would be devastating for this country. The idea that what Congress has got to, you know, do what the CDC does and do an analysis of exactly what kind of rules might be required... The democracy is that we elect Congress. If Congress thinks that an agency is doing something wrong, it can change the law. I mean, that's the—I mean, I unless we're gonna have direct democracy, um, and have everybody vote on every single law, um, we have to have a structure, um, in which, uh, these are mediated. And, uh, our original Constitution, um, sets up a system of representational democracy. The, this agency structure is, uh, is simply a derivation of that. Um, and, uh, the, uh, the leaders of these agencies are confirmed by the Senate. Um, and the, um, and the rules that they pass can be repealed. Um, there is, uh, I think democracy functions.
**Bob Zadek:** Uh, this is Bob Zadek. I've been spending a wonderful hour, painfully short hour, with Caroline Fredrickson. Caroline, um, teaches law, constitutional law, at Georgetown. She was, um, appointed by the National Constitution Center, uh, uh, National Constitution Center to draft—which he succeeded in doing—a progressive version of our Constitution. Reading the progressive version, the conservative version, and the libertarian version will tell you all you know about what country do you want to live in. You get to pick your country, more or less. Uh, Caroline, I am so envious at, of that appointment. What a wonderful time you must have had, and the work product is wonderful reading, even for the casual student of the Constitution. So thank you so much, Caroline, for all of your work, your team members' work, uh, and for your work, uh, for President Biden on reviewing the Supreme Court. Uh, Bob Zadek saying, so long for now. I'll be back again next Sunday with another hour of libertarian thought, uh, always ideas, never once attitude. Thank you so much for listening. Enjoy my podcast if that's what you do, and rate me if you are so inclined. Thank you so much. And please have a lovely Sunday.