The Conservative Constitution
2021-12-20 · Guest: Ilan Wurman (Arizona State University) · 52:30
Conservative Draft of the US Constitution
Bob Zadek interviews Professor Ilan Wurman of the Sandra Day O’Connor College of Law at Arizona State University regarding “Team Conservative’s” contribution to the National Constitution Center’s Constitution Drafting Project. They discuss the team’s approach to balancing self-government and liberty, restructuring the Senate with single nine-year terms, and reforming the Supreme Court with 18-year term limits. Wurman explains his team’s focus on correcting modern deviations from originalist principles, particularly regarding the Commerce Clause, substantive due process, and the Necessary and Proper Clause.
Topics: Constitutional Law, Originalism, Supreme Court Reform, Senate Restructuring, Federalism, 14th Amendment, Necessary and Proper Clause, Commerce Clause, Public Choice Theory
Speakers:
- Bob Zadek: Host
- Ilan Wurman: Associate Professor at Sandra Day O’Connor College of Law, Arizona State University
Introduction [00:16]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. And yes, we are live. We are always the show of ideas, never once the show of attitude. Thank you so much for listening this Sunday morning.
I have to apologize in advance for my show. I am going to have such a good time with this topic. It is a topic we have covered before—more about that in a moment—but this is perhaps my favorite series of shows over the entire 700 shows, more or less, that I have done. So if I actually giggle during the show, please bear with me. I am just having the time of my life.
Some time ago, the National Constitution Center—a nonprofit organization funded by Congress, but totally nonprofit, located in Philadelphia—sponsored the most wonderful, dare I say, competition. It invited three teams of scholars, legal scholars, constitutional law scholars. One team was libertarian, one was progressive, and one was conservative. And they were asked to rewrite the Constitution in the manner that they saw fit with respect to their ideology.
The result was three fascinating, different in many ways, but surprisingly similar in many others, three separate drafts of the Constitution. You may recall that in prior shows, I interviewed a team member from the libertarian Constitution drafting and from the progressive. And now is the final interview—well, hopefully not forever, but with the conservative—a team member on the conservative team to explain what a conservative Constitution, as opposed to the existing Constitution—perhaps “as opposed” is inappropriate, we’ll find out—but what a conservatively oriented Constitution might look like.
With that introduction, I’m delighted to welcome to the show and introduce to you, my listeners, Ilan Wurman. Ilan is an associate professor at the Sandra Day O’Connor College of Law at Arizona State University. He teaches admin law and constitutional law. He has written extensively in the Yale Law Journal as well as most other leading law journals in the country. And he has authored two books: A Debt Against the Living: An Introduction to Originalism, and he has written The Second Founding: An Introduction to the 14th Amendment. Ilan has worked as a team member on the conservative team and he’s here to explain what a conservatively oriented Constitution might look like. Ilan, welcome to the show this morning.
Ilan Wurman: Thanks so much for having me. Really excited to talk about this.
The Post Office and Core Principles [01:16]
Bob Zadek: Now, I’m going to start—this is going to be, warning to the audience, a very deep dive into constitutional theory. So just to set the right tone for the show, Ilan, I’m going to ask you as my first question: What did you do about the post office?
Ilan Wurman: [Laughs] We kept the post office in there. It is still in Article I, Section 8 of the Constitution, though we have it in Article I, Section 11 of our Constitution because we reorganized it and we interpolated the Bill of Rights and put it where they belong in the appropriate sections. And so, but in Article I, Section 11, unless I’m not remembering correctly, we have the post office. And that means, yes, you can carry the mail along the post roads if you can establish them pursuant to the Necessary and Proper Clause. I know the post office is a favorite of strict constructionists or libertarians, but yep, it’s in there.
Bob Zadek: All three teams kept the post office. So I start off on a very low note. This was your shot, and you blew it. Okay, we’ve gotten that out of the way.
Ilan Wurman: And by the way, we did amend the language more than the other teams. We said Congress shall have power to establish a system for the prompt and efficient delivery of the mail. That doesn’t necessarily mean there must be a monopoly on the delivery of mail and so on. I think Congress can establish presumably a system of private contractors and so on. So, you know, we tweaked it a little bit. But yes, it is there.
Bob Zadek: And to that, to your comment, your change, I would say in a non-sectarian way, from your mouth to God’s ears. But okay, now let’s go on to matters perhaps of greater import. Now, I’d like to get the audience organized to your way of thinking and to know what your goals were. So could you please summarize really briefly, because we have a lot of content to do, but you had to have started, consciously or subconsciously, with certain founding principles. The founders sure did, and you must have. So what were the principles that drove your drafting, and to what extent do you think they were different from the principles that were consciously or subconsciously in the minds of the founders when they spent that hot summer of 1787 in Philadelphia?
Ilan Wurman: That’s a great question. And I’ll try to be brief. I’ve promised such things before and usually I don’t actually keep the promise, but I’ll do my best and feel free to cut me off. What I think is the best way to answer this question is to actually compare it to how the progressives approached their Constitution and the libertarians approached theirs.
So the libertarian Constitution—I assume you had Ilya Shapiro on your show when we’ve talked about their Constitution…
Bob Zadek: Actually, I had Timothy Sandefur.
Ilan Wurman: Oh, you had Tim Sandefur. My apologies. That’s right. Well, when I’ve spoken mostly to Ilya in various public fora about this, and it’s in their document as well, but they like to say, “Look, we mostly started with the Constitution that we have, and after every clause, we just say, ‘And we mean it. And we really mean it.’” As though the founders’ Constitution is a libertarian Constitution. But with all due respect, it just ain’t so. It just ain’t so. The founders’ Constitution was not libertarian in the sense—yes, of course, the founders’ Constitution protected liberty, but they also sought to enable self-government for the common good.
Yes, it’s true that the national government was a government of limited and enumerated power, and in that respect, maybe we had a libertarian-ish national government. But certainly under the original Constitution, the states could legislate over all avenues of life: public welfare, health, safety, morals legislation—all of these things, at least morals legislation that libertarians tend to not like—the states for a long time and largely still to this day are allowed to exercise legislative power over such matters.
The progressives, for their part, they focused on democratic accountability and equality. Well, what did the conservatives do? What were our animating principles? Well, we think that a Constitution for a free society like ours, for a self-governing but liberal—in the classically liberal sense—society like ours, must balance self-government and liberty. And that was sort of our animating principle: How do we achieve a balance of self-government and liberty? Because these two objectives are in tension. Right? I mean, it doesn’t take a rocket scientist to know that it’s often self-governing majorities that infringe on rights of minorities, and certainly I don’t need to explain that to a libertarian audience. And so it’s really quite difficult, actually, to craft a successful Constitution that successfully balances these two competing objectives that are in tension. So those were the animating principles, and I think they were the founders’ principles, by the way. I don’t think the founders were libertarian. They cared about liberty, of course they did. They cared even more about ordered liberty. But they also cared about self-government and legislating for the common good. So in our Constitution, you’ll see all of these things. You’ll see democratic accountability, equality, liberty, self-government, and how do we balance those principles. That was decently short for my first answer.
Correcting the Founders’ Mistakes [02:51]
Bob Zadek: No, it was perfect. And our audience will decide after our conversation how true you were—I think you were—how true you were to those principles, and hopefully they’ll be able to form their own opinion at the end of the show. Now, in doing drafting, obviously you made many—not as many as one might have imagined, but that’s also true of the libertarian draft of the Constitution—did in doing a revision, did you see yourself as correcting mistakes that the founders made? If they did make mistakes, were they mistakes in their inability to see into the future? Did they violate their own principles? What caused, to the extent that you differed from the draft of the founders, what was the source of those differences?
Ilan Wurman: That’s a great question. And it’s a bit challenging to answer. And I think what I would say is we think that the founding generation was largely right about the principles that they sought to enact in their Constitution, this balance between self-government and liberty. But as I’m sure you and your audience know, the Anti-Federalists had a critique of the founders, of the Federalists at the time.
And the Federalists, the framers, were certainly attuned to the criticisms of the Anti-Federalists. The Anti-Federalists thought that the judiciary will slowly accrete power to itself through precedents and judicial review. And of course, Alexander Hamilton had responded, “Well, they just have the power of judgment, right? Not will or force. They don’t have the power of the purse or the sword.” But obviously, the Anti-Federalists in some respects were prescient about this, and the Supreme Court has an outsized role in modern American politics.
But the same with the executive. The Anti-Federalists feared the executive. And in my view—I’m an executive power scholar in part—if you actually look at the way that the founders wrote the Constitution, they took a lot of the royal—they took a list of the royal prerogative powers that were exercised by the king. This was the list in Blackstone. And they assigned most of the royal prerogative powers to Congress. This is actually something that most audiences don’t know. Everyone thinks that the enumeration of power in Article I, Section 8 was intended to limit the national Congress’s power, and that’s what it in fact does. But they probably enumerated power because that was the only way to assign the historically royal prerogative powers over war and peace, over commerce, over immigration, and you know, raising troops, regulating troops, to Congress. And so Congress was supposed to have a lot more say in foreign affairs than the modern imperial presidency has.
And so the Anti-Federalists were sort of prescient about modern—the risks of an imperial presidency, and of course the risk of Congress aggrandizing power to itself vis-à-vis the states. So it turns out that the Anti-Federalists were quite prescient about all of these. I think for their time, the framers were obviously correct to think that the Constitution they wrote was an improvement upon what had come before. But our objective was to take the framers’ principles—self-government, liberty, separation of powers, federalism—and sort of try to provide a corrective. Yes, the Anti-Federalists turned out to be right. It took 150 years for them to start becoming right, 200 years for them to become right, mostly because of our failings as a people and, you know, always letting politics and political ends trump constitutional principle. And we tried to amend this Constitution to sort of restructure it, rejigger it, rebalance it to be a bit more faithful to what the framers had hoped over time would be sort of the balance among the branches and the states. And that was sort of our objective.
Bob Zadek: You can include me in the list of people who didn’t know until one second ago the approach the founders took in listing the enumerated powers. So thank you so much for that. I just became already smarter than I was 10 minutes ago.
Ilan Wurman: Can I say one more thing about that then? Just so we—I want to hammer that point home. The Constitutional Convention rejected a resolution to enumerate power. It’s called Resolution 6. They rejected a resolution to enumerate power in favor of a resolution to give Congress all legislative powers over matters over which the separate states were independent or separate incompetent—was about the language. And then the Committee of Detail went ahead and enumerated the power anyway. They completely ignored the convention’s instructions.
And the only explanation—and I’m not the first to come up with this, William Crosskey, I think he was a Chicago professor in the 1930s, first came up with this—if you look at the enumeration in Article I, Section 8, over half the powers are directly taken from William Blackstone’s chapter on the royal prerogatives. And so it is kind of a myth about how we have an enumeration of power. Now, don’t get me wrong, the fact that we have an enumeration of power does in fact and in effect limit the national government’s power, and I think that’s a good thing. But it’s kind of interesting the origins of it. Okay, and that was the last thing I wanted to say.
Bob Zadek: And I would just say that one of the “mistakes”—how dare I even use that word—one of the mistakes in enumerating power turns out in hindsight, of course, that they limited Congress’s powers to everything. So yes, it limits it, but it turns out it’s a limitation without a limitation, because the powers have become complements of the Supreme Court and perhaps some wording. But let’s say the Supreme Court. The limitation of powers says you are limited to everything. So but let’s not get bogged down in that. That’s my own beef.
Restructuring the Senate [04:57]
Bob Zadek: Now, an important word when you have summarized your work product, when you were explaining to readers what the driving forces in your work product were, you paid some attention to the issue of small-d democracy. And it comes up a lot—we’ll discuss it in your restructuring of the structure of the Senate. It comes up in your discussion on how to elect a president. Now, tell us about the relationship of democracy in theory to your approach and how it differs from how the founders looked at and used small-d democracy. And before you do that, explain to the audience what you mean when you say democracy, only because it is a word that has become so general so it kind of loses its meaning. So I just want the audience to know when you use that word democracy, how do you use it?
Ilan Wurman: So certainly in the context of this conversation, to my mind, democracy is the idea that the people decide who rules over them on a continuing basis. I guess I should say the people choose the people who make the rules for them on an ongoing basis through election. Now, what I think is important to understand is I don’t think that the founders believed that democracy was an end in and of itself. And I’m not sure that I believe democracy is an end in and of itself. I’m sort of a Churchillian in this regard: it’s the best form of government—it’s the worst form of government except for all the other ones tried.
I think at the end of the day, the question is: How do we create a regime in which human beings can exist and flourish as human beings, sort of consistent with their functions as human beings? So you can see there’s sort of this natural law, natural right sort of background to my view on it. And it turns out that if you look at the course of human history, democracies overall are better at creating these regimes where people can be free and can flourish. Certainly, they have a slightly better track record than non-democratic regimes.
But they don’t have a perfect track record. And that’s why you have to also check democracy. Or as Madison said, or Publius said in Federalist 10, we want to create a popular government, a republican government, but that remedies the diseases most incident to popular government. How do you create a democracy which is most likely to make good laws and good rules because the majority doesn’t want to tyrannize itself, while recognizing that there’s always a risk of a majority tyrannizing a minority? And therefore, we need to enshrine some amount of fundamental liberties in a Bill of Rights, for example. And we need to have a separation of powers and checks and balances, as what we often call it, so that ambition must be made to counteract ambition. I think all of that is actually quite consistent with what we did. It’s consistent with the founders’ Constitution.
What we focused on—when you said small-d democracy, I thought you were going to say small-d deliberation. Or maybe that’s the big-D of our Constitution, because we focused a lot on democratic deliberation. And the idea here is in our Constitution, we eschewed putting into the Constitution substantively political conservative ends. We don’t talk about gay marriage. We don’t talk about abortion. There was some debate about this. Why don’t we talk about that? Because we think a Constitution should sort of set the structure and terms of deliberation for the common good.
So for example—and maybe we’ll get into this—one example is the Senate. Our Senate, we doubled down on the anti-democratic quality of the United States Senate. We made the Senate smaller. We give one senator per state. So our United States Senate is 50 senators. We give them a single nine-year term, so they’re not up for reelection. And they have to take an oath to legislate for the common good. Now, we almost made their deliberation secret, but that was too far for some on our committee in our mini-convention. And so we didn’t end up making their deliberation secret. But what’s the point of having a Senate with this structure? It’s this idea that it’s not anti-democratic—I mean, it’s partially anti-democratic—but it’s again, it’s resolving the problems of democracy while still being a popular government. The people choose these representatives, they choose these senators, but then the senators have to deliberate and legislate for the common good and, you know, avoid rent-seeking, avoid partiality, avoid partial interest. And that’s what we think is, you know, saving democracy from itself and for itself, if you will. And so a big theme of ours was this democratic deliberation.
Bob Zadek: I love the idea of the Senate. I really did. I was interested when you mentioned and in your writings, you mentioned that you considered having the deliberations secret. And I said to myself, why would that be so contentious? Since the senators only ran for one term, even if they were public and the senators took positions that angered the electorate, there’s nothing the electorate could do about it anyway. So how is the electorate benefited other than by learning from the debate? How could they do anything about a senator who has let them down in their own minds? So I once you…
Ilan Wurman: Well, you took the words out of my mouth in our debate. Let’s put it that way. I just think it was an optics problem. It seemed too sinister, too oligarchic. But your point is well taken. Like, we already had an aristocratic Senate that we made. And if they’re not eligible for reelection, why not have them secret? By the way, the actual United States Senate, the one we have, deliberated in secret for six years, for its first six years. And then they opened it up to the public. But there’s actually a precedent in American history for this.
The Senate Oath and Public Choice [06:58]
Bob Zadek: What caught my attention—I don’t want to spend a lot of time on this, I just want to mention it—you had the senators taking what I will call, although the words are charged, a loyalty oath. Now, loyalty oath has an ugly history. It harks back to the McCarthy era—you’re too young to even know about the McCarthy era—but so but it is an oath. And tell us about the oath and when you just explain what it was, because I have one question on the oath. But please just tell the audience what the oath—what they swear to do in the oath that you would impose upon senators.
Ilan Wurman: Yeah, so the—I’ll say one thing before that, which is we also required the senators and members of the House to be physically present when the House is in session, when their respective houses are in session, unless good cause excuses them. This is actually taken from the Pennsylvania Constitution, which requires members to be there. So you’re not going to just have senators and members of Congress talking to C-SPAN cameras. You actually have to be physically present on the floor when the House is in session and dealing with business.
But when they’re dealing with business, we also say that each senator shall pledge by oath or affirmation to promote the common good and long-term welfare of the nation and not the interests of any party or class. So we’re not saying, you know, I mean, obviously we would assume that they would be loyal to the United States, but what we’re trying to get them to do is to pledge, right, to pledge on oath or affirmation that they will do the best of their knowledge, to the best of their ability, actions that promote the common good and not sort of sectarian interests. Note that we don’t say that they can’t promote the interests of their state. We actually reintroduce the indirect election of senators through the state legislatures. Now, the theory being if you’re protective of state prerogatives and this division between national and state power, arguably that advances the long-term welfare of the nation and the common good because the national government should only have power over general matters, things that affect general welfare, common defense, and things like that that the separate states are incompetent to legislate over. And we think that’s sensible.
We have no illusions that these senators are still going to find ways to engage in rent-seeking and to bully people into giving campaign finance contributions in order to enact favorable legislation. I mean, we have no illusion of that. But we hope that this puts a thumb on the scale at least nudges them or at least their consciences to truly try to deliberate for the common good as opposed to any particular faction. I mean, this is Madison in Federalist 10, recognized the problem of faction as you know, and he thought he solved it by the extended republic where there would be too many factions to actuate the impulses of a majority, whereas in a small republic or a small nation-state, it’s very easy for factional passionate minorities to get control of power.
But he might have been wrong about that. I mean, we now have public choice theory. Libertarians love public choice theory. One of the insights of public choice theory and the literature surrounding it is that it turns out factions are still good at getting their policies enacted. Why? Because factions are intensely interested in one particular issue that the rest of the general public is only diffusely interested in. So a legislator is going to take money from the faction who’s intensely interested in this one issue and will vote their way on this one issue. And we need a solution for that. I don’t know that we have a solution for that in our Constitution. But we think again, deliberating in secret might have helped, by the way, in this regard. But again, making a small Senate, making it you can’t go for reelection, pledging, pledging to legislate for the common good, we think puts a thumb on the scale, nudges them, if you will, in the direction of avoiding the public choice problem and truly legislating for the general good.
Bob Zadek: When you answered my question about loyalty, you accused me of reading your mind or using your words. You just used mine, because I was teasing out the loyalty oath answer so I could say: What about loyalty to states? And there you were, you responded before I got to ask the question.
Reforming the Supreme Court [08:21]
Bob Zadek: Now, the harder question is: In your—if not oath, but in your perception of to who does the loyalty lie? I have often wondered, looking at bare duty, when a senator today goes to Washington and he certainly owes a duty to the country for sure to defend the Constitution, etc., but he also owes a duty to the state. And my theoretical question was—we don’t have to get sidetracked, but the question was—assuming a conflict between a bill like building a ship in Biloxi, Mississippi, that the Defense Department doesn’t need, but it sure benefits the state, whether the senator’s duty—forgetting about anything else—whether the duty is to the state and have the money spent building the ship, or whether the duty is to the federal government and don’t vote for that because although it’s good for the state, it’s bad for the country. So I don’t know that you have answered the question, but we would be sidetracked, although having a good time, if we discussed that.
Ilan Wurman: It is a good question to which I do not know that I have a great answer in that regard. So yes, it’s an excellent question.
Bob Zadek: Now, what was interesting in looking at the result of the work product of the three teams is how much you agreed on an issue which has been, of course, in current conversation a lot, which is the operation of the federal judiciary in general and emphasizing the Supreme Court specifically. So what was your beef with current structure and how did you go about fixing it? You can restrict your answer to the Supreme Court or you can broaden it to include the federal judiciary, which I think is a subsidiary issue.
Ilan Wurman: I think I need to talk about both, and also executive officers. You’ll see what I have in mind because we—if you reform the appointment process, you also need to reform the confirmation process. And I’ll say a little bit more about that. But the thought here again is this problem of lifetime tenure, quote-unquote problem of lifetime tenure on Supreme Court justices. A lot of them live much longer than people lived in the founding generation. They’re nominated in their 30s or 40s—I guess is more accurate for Supreme Court justices—and they can stay there for 40, 50 years.
And there is something—I don’t want to say anti-democratic about it. There’s supposed to be something anti-democratic, counter-majoritarian about a Supreme Court enforcing the higher law of the Constitution, right? The restraints that we the people have put on ourselves. So I don’t want to use sort of that trope against it. But the reality is, you know, 45 years is a long time for five people to get to decide important social, political, controversial issues in the country. Now, of course, the one way to—so there must be a way to lower the temperature in these Supreme Court confirmation battles.
Now, look, one way to lower the temperature is to say the Constitution doesn’t say much about these things. Maybe, you know, the Supreme Court doesn’t say much about—the Constitution doesn’t say much about abortion, but maybe it doesn’t say anything that much about affirmative action either. Maybe both of these are issues that should be left to the states or to the people at the states or at the national level. But the problem is, of course, is a lot of people believe that the Constitution leaves matters to the states where they think they can win politically, and that it doesn’t leave matters to the states where they would rather nationalize their preferred political preferences. I think this is true of conservatives and progressives, and libertarians. I think it’s true of sort of everybody. For what it’s worth, I happen to think that the correct originalist answer to most constitutional questions, certainly the hot-button ones, is that it leaves many of these questions to the democratic process in the states. Now, I think that would lower the temperature of Supreme Court battles and confirmation battles, but you know, it’s also controversial because look at Roe v. Wade. Even if Roe v. Wade is overturned, it would leave the matter to the states, abortion to the states, and that’s still controversial. And so simply leaving matters to the democratic process apparently is not sufficient.
So look, a lot of people think 35 years, 40 years, it’s way too much time to be a Supreme Court justice, to have that kind of power. 18-year fixed—the Supreme Court at nine justices. Currently, it’s not fixed at anything. So Congress can expand or contract the size of the Supreme Court. So have nine justices, have each term be 18 years, stagger the terms so every president, every term, I should say, there are two seats to fill. And we think this will lower the temperature of the confirmation battles a bit. It won’t entirely because, you know, you’re still going to fight over who’s going to be elected president for that third term, you know, Republican or Democrat, because we’re always going to have two more seats, and in some respects, maybe this just makes that politically controversial in more elections because you can expect them every two years. But the idea is, the hope is, it reduces the stakes because there’s constant turnover in the Supreme Court. And quite frankly, 18 years is enough. It’s not a perfect solution. And as I said, we have to reform the confirmation process as well, which I’m happy to talk about. But all three teams sort of came to some agreement about 18-year term limits.
Bob Zadek: Actually, the progressives and the conservatives came to agreement, and you mentioned Ilya Shapiro. Ilya has mentioned that although the libertarian Constitution took no formal position, he would—they would support an 18-year term limit. What I wondered about—and I like the idea of an 18-year term limit—the only thing I wondered about is that why couldn’t a Supreme Court justice who was being termed out, why couldn’t that justice be renominated? Let’s assume, let’s take Scalia just because I love saying his name, Justice Scalia. Justice Scalia in my hypothetical is about to be termed out. And the existing president really admires Scalia and his judicial point of view. So now Scalia has to go. The existing president at the time would simply look for the most Scalia-like substitute because he can’t have Scalia. That’s kind of silly. Let him just reappoint Scalia and go through the process again. Just a minor tweak.
Ilan Wurman: That’s a fair criticism. But I guess the idea is we don’t necessarily want one president through happenstance and luck due to deaths and or times resignations to have three or four appointments in one term, and others to have none. I mean, that makes people feel that the stakes are much higher than if every presidential term there are two and no more than two. And if you win the election and the two you put on there are like Justice Scalia, so be it. But then you have to win the next election if you want the next two seats. That’s sort of the idea, but your point is very much well taken.
Fundamental Rights and the 14th Amendment [10:46]
Bob Zadek: What caught my attention is especially, of course, in the libertarian Constitution, is the protection or the degree of protection of what all the teams referred to one way or the other as fundamental rights, the rights enshrined as enumerated in the Bill of Rights and captured—and other rights captured by the Ninth Amendment. Tell us your approach to fundamental rights. And what caught my attention is you mentioned that you went out of your way to mention in some of your writings the issue of conscription, which caught my attention. And also what caught my attention is a passing reference to national criminal laws, an issue that really gets my dander up. So tell us about fundamental rights in general, how your approach differed from the other two teams, what your worldview is, and if you could mention along the way, just because I am curious about it, your view on conscription.
Ilan Wurman: Okay, well, you’ve got me talking about fundamental rights, and so I have to start with my actual view of what our Constitution, the one we actually have, does and doesn’t do or was and wasn’t supposed to do with respect to fundamental rights, and then I’ll dovetail into what we do in this conservative Constitution.
So the original Constitution creates this federal structure where the Bill of Rights limits the scope of the national government’s power but doesn’t apply to the state governments’ power. And the states all had their own bills of rights, most of which had similar or parallel constitutional provisions. So for example, I think every single state as of 1868 had a First Amendment equivalent. Almost all of them had a Second Amendment equivalent, but even those that didn’t, of course, pre-guaranteed the right at least of white persons to own guns.
Well, after the adoption of the 14th Amendment, especially in the 20th century, the Supreme Court has done two things. One, it has incorporated the Bill of Rights against the states, which now means the federal Bill of Rights as interpreted by the national Supreme Court applies everywhere in all 50 states. Even if the Supreme Court gets certain interpretations wrong, or if there are certain rights in there that we don’t like. So for example, this means California can’t experiment with prohibiting handguns because the Second Amendment as interpreted by the Supreme Court applies to California. But this also means that Texas can’t experiment with abolishing the exclusionary rule. The exclusionary rule, this idea that you have to—I know libertarians like it—it’s the idea that you have to suppress evidence unlawfully obtained by an illegal search. That’s not commanded by the original meaning of the Fourth Amendment. It’s actually quite made up. And so the point is, you know, there are things that conservative states can experiment with, there are rights that libertarian states can experiment with, and there are rights that progressive states can experiment with, but we can’t do that now because of the incorporation of the Bill of Rights against the states. I’m not saying it’s been a bad thing. I think overall it’s been a good thing, but there is this cost to it.
But in addition to that, the Supreme Court has nationalized unwritten fundamental rights in this concept called substantive due process. So the Due Process Clause of the 14th Amendment says no state shall deprive any person of life, liberty, or property without due process of law. Now, the text of the Due Process Clause sounds like it allows the government to take away your life, liberty, or property so long as it supplies due process of law. Well, the concept of substantive due process is this idea that the Due Process Clause isn’t merely a procedural limitation—the procedures that have to be gone through before the state takes away your life or your liberty—but it’s a substantive limitation on the substance of legislation itself. In other words, some rights, even if they’re unwritten, are so fundamental that the state cannot interfere with them without exceptional justification. So substantive due process is the doctrine whereby the Supreme Court has enforced, you know, rights to use contraception in marriage, the rights to abortion, the right to same-sex marriage and same-sex sodomy, all of which are, you know, maybe perfectly plausible things, certainly things libertarians like, but it’s hardly clear that a lot of these things are commanded by the Constitution. And so they do this under this concept of substantive due process.
So what do we do? So let me back up. In my new book, since you mentioned it, if I may, The Second Founding: An Introduction to the 14th Amendment, I argue both that the original meaning of the 14th Amendment precludes substantive due process. There’s no such thing as substantive due process. This was made up in the 1870s and ’80s when the Supreme Court conflated a bunch of antebellum doctrines that loosely kind of looked like substantive due process but were something else. So I make that argument. I also argue that incorporation was wrong. In my view, states can experiment with Second Amendment rights, First Amendment rights, Fourth Amendment rights, as long as they don’t discriminate. They must treat their citizens equally. Okay, and that’s kind of a fine line, but that’s sort of my view. Okay, and the modern doctrine disagrees with me in both respects. There’s incorporation of the Bill of Rights and there’s substantive due process.
In our Constitution, we nip substantive due process in the bud. We say—gosh, I wish I had thought to look up this language—but we say something to the effect in the rights section that the Due Process Clause shall not be construed by the Supreme Court to empower the national judiciary to impose unwritten rights on the nation. I wish I really want to look up the language, but it’s somewhere there. So we try to nip substantive due process in the bud. We do, however, explicitly incorporate the Bill of Rights. So we settle this question once and for all. What we do is we take the rights in the Bill of Rights and we say neither the United States nor shall any state, and then we have a First Amendment equivalent, Second Amendment equivalent, and then we vary them a bit. So that’s the approach that we took in our Constitution, and I’ve also given you sort of my view on what I think the actual Constitution was intended to accomplish and how the Supreme Court has sort of messed it all up.
Conscription and the Necessary and Proper Clause [13:01]
Bob Zadek: What about conscription? Only because you have taken the trouble of all of the rights that one thinks one has or hopes one has, you could have discussed any one of a number of rights, but you took the trouble, if you will, of specifically identifying your view on conscription. Conscription, of course, is a lot of syllables which to most people mean the draft, but it might mean public service. There have been smatterings of debate by progressives about conscripting people to go and sell environmentalism and stuff like that. So tell us about your view on when government—and I’ll say government intentional to capture perhaps the states and the federal government—when government has the constitutional power to compel citizens to work—I’ll use that word—work for the government.
Ilan Wurman: So I’m embarrassed to say that I can’t remember the exact language we used. I know that in our introduction, we mentioned how we assume that there is a power of conscription and that we clarify in the Bill of Rights-type section, the rights article, that you can have conscientious objections and be exempt from the draft. I know we said that. I don’t know if we’ve explicitly put in a conscription power. I’m not sure. I can’t remember. But it’s an interesting question because where does Congress get the power to conscript people into service?
So the argument would have to be the Necessary and Proper Clause, and there’s a question as to whether that’s a successful argument under the Necessary and Proper Clause. So we know that Congress can raise and support armies and navies and provide for a navy. Those are explicit powers. But it doesn’t say it can raise armies through conscription. If it can do that, it must be done through the Necessary and Proper Clause, which says Congress shall have the power to make all laws which shall be necessary and proper to effectuate the foregoing powers, or to carry into execution the foregoing powers and any other power, by the way, vested by this Constitution in the United States or any department or officer thereof.
But the principal thrust of the Necessary and Proper Clause is Congress can take actions necessary and proper to effectuate its enumerated power. What does the Necessary and Proper Clause really do? Well, I’m writing a bit about this, but others have written. If you look at the original history, it is a grant of implied powers only. So not only does it have to be connected to some enumerated power, but it can only be an implied power. What’s an implied power? An implied power is a lesser power, a power that’s not this great substantive independent prerogative that you would expect to be textually specified and textually enumerated if that power had been intended to be given.
Okay, so for example—this is going to sound silly—but suppose, Bob, I say you can come to my office and you can pick up David Currie’s The Constitution in Congress, it’s on my bookshelf. You come to the office, you can’t find it, you move books around. Do you have the implied power to move books around to look for this? Of course you do. It’s a lesser power and it’s sufficiently related to this grant of authority I’ve given you. But what if my door’s locked? What if my door’s locked and you can’t get in? Can you get a battering ram and bash my door in to go get the book because I authorized you to go get the book from my office? No. Why? Because the power to break down the door is such a great substantive independent thing, independent power, that if I had authorized you to do that, you would have expected for me to textually enumerate that, to specify that you can do that.
So for example, if there hadn’t been a taxing power in the Constitution, could Congress tax people to raise money to fund the post office? I don’t think so, because the power to tax is a great substantive independent prerogative. If we’re giving the national government this power, we must do so explicitly. The question then becomes: Is the power to conscript a great substantive independent power, something that’s so important that if the national government has this power, you’d expect it to be textually enumerated, or is it a sufficiently lesser power that it can be implied and therefore Congress can do it to effectuate its power to raise and support armies and navies? That’s the question. Do I have an answer to that? No. That is a hard question under the Necessary and Proper Clause, and if any of my students are listening, maybe I’ll use that as an exam one day, or at least as a practice exam, because it’s such a great question.
Bob Zadek: Conscription is not a hard question for me. Of course they can’t.
National Criminal Law and the Commerce Clause [14:41]
Bob Zadek: But what caught my attention—sorry to get the forced the last word upon you—but national criminal law. Okay, I’m sorry to do this. I’m going to test you. I have a thing about national criminal laws, by the way. I hate them. I hate them. Can you name—I’m sure you can—the original three and only three national criminal laws in the Constitution?
Ilan Wurman: You mean enumerated in the Constitution itself?
Bob Zadek: You bet. You bet.
Ilan Wurman: We have treason…
Bob Zadek: Good.
Ilan Wurman: Oh my gosh, let me think.
Bob Zadek: No one knows. Piracy and counterfeiting.
Ilan Wurman: Of course, of course.
Bob Zadek: It’s a great question. I love that question. Sorry, I’m not trying to humiliate you in front of your students who might be listening. So students, it’s not a fair question. Nobody knows except I looked it up. National criminal law: Why do you specifically mention that as we sort of get close to running out of time? What is—why do you mention it, and what do you think the reason is for national—and when I say national criminal law, I mean leaving the police power 100% in the states where it belongs, because criminal law is simply the embodiment of police power, protecting health, welfare, and safety of citizens, a prerogative of the states. What’s your infatuation, if it is that, with national criminal law?
Ilan Wurman: Sure. So I’ll say something about that in a moment, but we really are out of time almost, aren’t we? So we didn’t get a chance to talk about the Hamiltonian or Madisonian views of the spending power, which you’ll have to have me back because I would love to talk about the Madisonian and Hamiltonian debate over that, and we had a little debate about that too.
So in our Constitution, and I’ll read it for your listeners, we give Congress specifically the power to pass criminal laws when necessary and proper for carrying out the national powers specifically enumerated in this Constitution, but such laws shall be narrowly construed. Why do we do this? Because Congress has enacted a variety of criminal laws originally through the Necessary and Proper Clause, and there was actually little dispute about this. So for example, if you can establish a post office and a post road, can you make it a crime to interfere with the delivery of the federal mails, to impede a delivery of the mails? And they did. They made it a federal crime. There’s no express enumerated power. The question is: Is it implied under the Necessary and Proper Clause? And they said yes. We can establish courts. Can we make bribery of federal judicial officials a federal criminal offense? Yes, they said yes, because it’s necessary and proper for the exercise of that enumerated power.
The problem in the modern day is Congress passes a whole host of criminal laws not pursuant to the Necessary and Proper Clause, but pursuant to the Commerce Clause, pursuant to the commerce power. So for example—my favorite because I dealt with this issue when I was a law clerk and it really made me angry because, you know, I’m actually quite libertarian in my tendencies even though I was on this conservative team—the Hobbs Act, okay, prohibits any robbery, even if it’s intrastate, internal to a state, so long as it has an effect on interstate commerce. Well, under the test today, anything has an effect on interstate commerce under the modern commerce test, right, in the aggregate. So there was this case where this individual committed a robbery of two drug dealers, all in Texas. The marijuana was probably bought in Texas. Unclear that there’s any interstate connection. But because it was two robberies and it dealt with a market for illegal narcotics, they decided that this was interstate commerce.
So we have general criminal laws like against robbery or bribery or extortion or what have you, under the guise—not specifically connected to an enumerated power, but under the guise that these activities substantially affect commerce in the aggregate, meaning if everybody committed robberies, when you aggregate 300 million people committing robberies, that affects interstate commerce. Well, whatever, fine. That test is insane. But that’s the problem with the modern-day doctrine. So in our Constitution, we try to rein it in. We try to actually say, “Look, those original criminal laws that were passed against interfering with the mail, against bribery of federal judicial officers, those are legitimately necessary and proper to an actual enumerated power.” But using the commerce power as a general grant of power to make criminal laws, that’s a really bad thing. And so what we say again is Congress has the power to pass criminal laws when necessary and proper for carrying out the national powers specifically enumerated and that such laws shall be narrowly construed. We’re trying to go back to the original understanding of the Necessary and Proper power. That’s where the criminal laws can come from, but not through a general grant of power over commerce.
Bob Zadek: This is Bob Zadek. I’ve been spending a wonderful hour that went painfully fast with Ilan Wurman. Ilan is an associate professor at the Sandra Day O’Connor College of Law at ASU. He teaches admin and con law. He has written two important books. He will be back on the show to discuss perhaps two shows, each show for one of his books. He also will be back on the show—this is a public promise—to discuss the wonderful issue he has raised that has really captured my imagination dealing with the taxing power. Does Congress have the direct power to lay and collect taxes independent of the power to spend? Where do those two powers fit together? A very important conversation. We have been discussing the conservative Constitution. And Ilan, you have kind of sold me. I love your work product, and I look forward to seeing the result of the convention you’re going to have in May of this year. So thank you so much for an hour of your time, Ilan. It’s been a wonderful hour, and I promise to have you back. In fact, I cannot wait to have you back. So thank you so much for your insights, and thank you to my friends out there for sparing an hour of your time this Sunday morning. Have a nice rest of the Sunday.