Timothy Sandefur on The Libertarian Constitution
2021-11-08 · Guest: Timothy Sandefur (Goldwater Institute) · 52:33
The Libertarian Constitution Project
Bob Zadek interviews Timothy Sandefur of the Goldwater Institute about the “Libertarian Constitution” project commissioned by the National Constitution Center. They discuss specific revisions intended to restore federalism, protect individual property rights, eliminate the income tax, and constrain the administrative state and executive war powers.
Topics: Constitution, Libertarianism, Federalism, Property Rights, Income Tax, Commerce Clause, Administrative State, Impeachment, Judicial Review, Occupational Licensing
Speakers: Bob Zadek, Timothy Sandefur
The National Constitution Center Project [00:00]
Bob Zadek: Good morning, everyone. Welcome to The Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. This Sunday, and always, the show of ideas, never once the show of attitude. Thank you so much for joining me and my guest this Sunday morning.
A short while ago, a wonderful organization, the National Constitution Center—as the president of the center, Jeffrey Rosen, has explained, it is the only organization chartered by Congress to further the understanding and appreciation of the Constitution. Well, the National Constitution Center, it is located in Philadelphia, it has a wonderful exhibition, it is, of course, nonpartisan, needless to say. It commissioned three teams of scholars, and it selected a libertarian team, a progressive team, and a conservative team. And it commissioned them, it assigned them the task, each team working independently of the other, of writing or rewriting our Constitution in a way more consistent with their respective values.
What a wonderful activity. And the teams did their work, and they delivered three different Constitutions. And each of the Constitutions, in some respects—we’ll learn about that further during the show—differed quite dramatically with the others. They were all consistent, more or less, to the starting point, our current Constitution, in terms of its structure. And in many ways, the three teams reached very similar conclusions. It was surprising to me when I read it.
But what a wonderful experiment. And I thought it would be just the most delicious intellectual examination to have on the show this morning one of the team members from the libertarian team to explain to us how he and his team members, what they concluded in terms of the changes to the Constitution, either to make it more libertarian, or to make it more true to the founding principles, or to correct the errors which the Founders may have made, if any.
We will learn during the hour which and what combination of those approaches did the libertarian team follow. And it will, I think you will find the discussion to be quite provocative and invite you to think about and understand some of the founding principles in the Constitution. To help us understand how the libertarian team went about their approach in fixing, revising, correcting, rewriting—Tim will supply the proper verb—the Constitution, I’m happy to welcome back to the show Timothy Sandefur. Tim is Vice President for Litigation at the Goldwater Institute. He litigates extensively on property rights and individual freedom issues. He is the author of many books. He has been a guest on my show before. He is an adjunct scholar with the Cato Institute, a graduate of Hillsdale College and of the Chapman School of Law, and he’s also a professor of law at George Mason University’s Antonin Scalia School of Law. Tim was a team member on the libertarian team. He was involved in the revising, correcting, rewriting, undoing the mistakes of the original Constitution, and he’s here this morning to share with us what they found right, what they found wrong, what had to be corrected and why with the original Constitution. Tim, welcome back to the show this morning and thank you so much for joining us.
Timothy Sandefur: Thanks for having me back. I would say that we rescued the Constitution.
Bob Zadek: Well, it perhaps needed a bit of rescuing. It wasn’t in extremis, but it wasn’t as healthy as it might have been. So the rescue is, of course, welcome. It is a very useful document. It has served us well for 230-plus years. And everybody needs a little fixing up, and every instrument needs a little fixing up now and again.
Intellectual Property and Copyright Reform [02:54]
Bob Zadek: Now, Tim, in the project itself, I teed up a question which I don’t think I didn’t feel comfortable even beginning to answer, but I’ll ask you to answer. In the project writ large, the revising, correcting, fixing the Constitution, did you find yourself correcting mistakes—strong word—that the Founders made? If the Founders made mistakes, was it not really a mistake, but it’s just the times they were a-changing and the Constitution had trouble keeping up with changing circumstances? Were you true to, or did you adjust slightly, the principles which the Founders adhered to or attempted to adhere to in the Constitution? So tell us the headline of what you thought you were doing in adjusting, fixing the Constitution.
Timothy Sandefur: Well, we did do a little bit of all of those things, but I think our initial impulse was to just turn around and hand them back the existing US Constitution and say, “This is libertarian. We don’t need to change it.” But of course, the fact is that there are a number of different things that needed to be remedied. And of course, there are amendments already to the Constitution that in many ways make it more libertarian and in some ways less libertarian than it originally was.
So we took the existing Constitution and then we incorporated the existing amendments, leaving out things like the income tax, of course, that libertarians have strong opposition to. But for instance, like the 13th Amendment that prohibits slavery, we took that and wrote it into the body of our Constitution instead of having it at the end the way that the amendments are at present.
And after we first wove in the existing amendments, then we started in on what would we tinker with. And in some of those cases, it was stuff that we thought that maybe the Founders didn’t quite get it wrong, but they got it incomplete. A good example of that is intellectual property. Now, a lot of libertarians, including myself, have real problems with the idea of intellectual property at all. And in particular, the US Supreme Court has said that Congress can basically just renew the length of a copyright indefinitely. And we think that’s a real problem. So we wrote into our Constitution that you can still have copyrights and patents, but they only last for 28 years. We thought that was a reasonable period—that was the period of time that patents lasted at the time of the Founding Fathers. So we thought we’ll just include that and that way Congress can’t just keep renewing copyrights every time Mickey Mouse comes up to where he’s threatened with becoming the public domain.
Bob Zadek: I don’t want to dwell too much on intellectual property because we have so much to cover. But what was your problem with rewarding and encouraging unique, original intellectual activity and protecting it once an individual creates something new? When you create something new, what’s wrong with owning it for a really long time? After all, you created it. I’m asking the question not because this is going to be an IP seminar, but because your answer to the question will show a libertarian approach to property rights in general. So I’m really asking that as a surrogate for the bigger question.
Timothy Sandefur: Sure. So the libertarian critique of intellectual property per se is that it’s not really property. What it is is it’s a government-created monopoly that makes it illegal for you to imitate or copy some other person. And that means that it’s an initiation of force against somebody who has not initiated the use of force, which violates a fundamental principle of libertarian political theory.
On the other hand, like you said, copyright and patent have an advantage in that they sort of reward and incentivize creation. And so the compromise between those two positions is to allow a limited amount of time of exclusive use to creators as a way of subsidizing them, but then not allow them to indefinitely prohibit anybody from profiting off of the idea of Mickey Mouse or a song. I mean, probably the most heinous example of abuse that I know of is—remember the 1980s Men at Work song “Down Under”? That was found to be a violation of copyright because it uses a few notes from “Kookaburra Sits in the Old Gum Tree” in the background of the song. And so therefore, the band was required to pay out a whole bunch of money to people who own the rights to “Kookaburra Sits in the Old Gum Tree.” I mean, that’s ridiculous, right? That’s really an injustice. So you don’t want to have that sort of thing. So our compromise position was to allow for limited times for copyrights and patents as a brief way of subsidizing invention, but then have that go away.
Undoing Supreme Court Damage to the Commerce Clause [08:14]
Bob Zadek: Is it fair to say that a lot of what you—the work you did and the work you felt you had to do—was giving us back the—I’m going to use a phrase that I’ve never used before—a “pre-Supreme Court Constitution”? That is, it seemed to me that you were trying to, I’ll say correct, because I believe that’s what you were doing, but correct or give us back the Constitution the Founders gave us before the Supreme Court used its judicial power to adjust the original meaning. Did you find that you were undoing the Supreme Court’s damage rather than creating new concepts?
Timothy Sandefur: Yes, that’s a very good way of putting exactly what we did. We came up with a long list, really, of Supreme Court decisions that got things wrong, and we went in and tried to basically rescue the Constitution. A perfect example is our version of the Commerce Clause, which allows Congress the power to regulate commerce among the several states. And especially beginning in the late 1930s, that has been expanded to allow Congress essentially a blank check of power to do whatever it feels like.
And so we revised the language, so in our version it says to regulate commerce the way the Constitution currently says, and then it says, “provided that this shall not authorize regulation of a non-commercial activity or any activity that is confined within a single state regardless of its effect outside the state.” However, we do allow Congress power to regulate things like pollution that go from one state to another. So we tried to recognize that, yes, of course the world is different today than it was 200 years ago, but that should not be used as an excuse for doing damage to the original plan of limited constitutional government that the Founding Fathers had.
Bob Zadek: I’ll just one very minor comment. You said the Commerce Clause, the meaning had been expanded. Politicians often say “mistakes were made,” not “I screwed up.” They say “mistakes were made” in the ether, has nothing to do with me, the politician. You said the Commerce Clause was expanded. No, it wasn’t expanded. That almost sounds like it’s something that happened physically. It wasn’t expanded. The Supreme Court over time assigned a meaning to a clause that never had the meaning the Supreme Court intended. So let’s just put the—I hate to use the word blame, but it’s appropriate here—let’s assign responsibility where it belongs. The Commerce Clause wasn’t expanded sort of metaphysically. It was done by the Supreme Court.
Timothy Sandefur: Yes, that’s right. The blame rests squarely on the shoulders of Franklin Delano Roosevelt and the Supreme Court that toadied up to him, beginning primarily with National Labor Relations Board v. Jones & Laughlin Steel Corporation, which was a Supreme Court decision that upheld the National Labor Relations Act on a theory that because without the Act, there would be a problem with the labor market and that would disrupt the nation’s economy. Therefore, Congress has power to regulate every employment contract in the nation. That was so ludicrously expansive that then it was used as an open door, as I said, as a blank check for Congress to regulate practically anything that has any economic effect on the nation or that its absence would also affect, which is everything. And so we tried to revise our Constitution to put some sense back into the constitutional limits on federal power under the Commerce Clause.
Restoring Federalism and Protecting Individual Rights [12:07]
Bob Zadek: If there’s one topic that I spend perhaps more airtime on than any other, it is the erosion of federalism, the power being ceded or taken from the states and from localities and given into Washington, the accumulation of power. I assign a lot of the national ills to that circumstance. You have made enormous changes in the relationship between state power and federal power. And I think it’s quite fair to say that the changes are getting us back to the original starting point. So speak to some of the important adjustments you have made, because I felt if I were to count up, if it was even possible, count up and categorize the changes, it seems like a large plurality of the changes related to that. So walk us through some of the more important adjustments you made to give us back original federalism.
Timothy Sandefur: Yes, so you’re right about that. The Founding Fathers contemplated a small federal government and leaving most of the power to regulate matters of our daily lives at the state level. And we tried to restore that by basically shifting that power back to state governments and prohibiting Congress from doing things like spending money in ways that deprive states of their authority or creating bureaucracies that obviously are taking over power through the Commerce Clause, as I said, is the biggest one.
But another important part of that, of course, is there is one aspect of federalism that the Founding Fathers—I don’t know if you could say got it wrong, but it was incomplete—and that is there was too little protection for individual rights against state government. So another thing that we tried to do was to constitutionalize—I mean, that’s been remedied by the 14th Amendment in large part—but we tried to constitutionalize that.
So for example, we have a whole section in our Constitution that says “no state shall” and then prohibiting states from doing various things that in many ways they currently do, and also prohibiting the federal government from doing things. So a good example here is “neither the federal government nor any state or tribal government”—we also included Indian tribal governments—“shall ever give or loan its credit in the aid of or make any donation or grant to any corporation.” Now, we borrowed that language from the Arizona Constitution and several other state constitutions called a “Gift Clause.” It prohibits the government from subsidizing private businesses with taxpayer dollars. It’s found in almost all of the state constitutions, in fact, although sadly most states just ignore that. But we chose to incorporate that into the federal government to prohibit Congress from subsidizing private businesses.
Another one that we included was “neither Congress nor any state shall enact any local or special laws when a general law may be made applicable.” Now, that again is borrowed from state constitutions. The idea is state legislatures sometimes write their laws to say something like “the business located on 12th and Main shall be allowed to do such or shall be given such special privileges” or whatever. Or they design their laws so that they look like they apply to everybody, but when you get down to it, they only apply to one business or something. And Congress does this itself. So we said, “No, you can’t do that. Laws have to be general and apply to large classes of people. You can’t just write laws that apply to particular individuals and that sort of thing.” So we tried to go through—
Bob Zadek: Every syllable, by the way, every single syllable of the income tax law violates that principle. Every single syllable.
Timothy Sandefur: Yes, that’s true. And it would also violate a lot of other protections that we have in our draft of the Constitution. We, for example, protect privacy rights expressly in our Constitution, but we used language that we borrowed from the Washington and Arizona state constitutions. It reads, “No person shall be disturbed in his private affairs or his home invaded without a warrant except where circumstances will not admit of a delay,” and so forth.
Now, the prohibition of the government disturbing your private affairs—that phrase only occurs in Washington and Arizona, and it was originally written for a number of reasons, but one of them was to prohibit the income tax. It was written in the late 19th century before the income tax came into existence. And one of the biggest concerns was if you adopt an income tax, then you’re going to force people to have to report every year to the government every dollar they make and where they got it and how they spent their money and all this sort of thing, which of course you and I live with now as a matter of course. But to that generation, that was an intolerable intrusion on individual privacy. So we used the language of that “private affairs” clause, we adopted it into our federal Constitution. That also would prohibit the income tax if it were in existence.
Eliminating the Income Tax and Reforming Revenue [17:31]
Bob Zadek: Now, that’s a good segue. Eliminating the income tax, of course, you would have done away with—actually, we’ll come to the 17th in a second—but you have done away with the two back-to-back amendments that destroyed the core structure of our federalism that the Founders gave us: the 16th and the 17th Amendments, both passed in 1913. They were dark days right in the height of the then-progressive era. And the 16th Amendment was the income tax, 17th Amendment, which we’ll try to get to, which is the direct election of senators, because you’ve fiddled with that as well. So you have in many—almost three times I’ve been keeping track during the course of this conversation this morning—you have in one way or another expressed your unhappiness with the income tax and want to do away with it. So okay, as we do away with the income tax, not because we just don’t like paying taxes, but it violates core principles that we subscribe to—it’s not a tax per se that we object to, it’s that tax. So how, since the government needs revenue to function, obviously, and you and I both desperately want a government in some form to be there, we require it, of course. So how, on a constitutional level, how do you replace the money that the government will now lose when the income tax under a libertarian Constitution is unconstitutional?
Timothy Sandefur: Well, since we’re waving our magic wand, of course, in a—if our Constitution were adopted, Congress would have less need for money and therefore there’s no need to replace the current flood of our earnings that the government sucks away every year. But of course, we do recognize the existence of taxes. And again, this is another place where, you know, I guess a dyed-in-the-wool libertarian would have a problem with government having any taxing power. So we are in some sense compromising on our libertarian principles for constitutional purposes here.
But we’re saying that Congress can lay taxes, it just can’t do income taxes. We have an express prohibition on that. And then we allow Congress to impose, to quote, “lay and collect taxes, duties, imposts, and excises,” end quote, which is, of course, the current—is in the language of the current Constitution. But we then prohibit the government from spending it in particular ways. We say that the government can tax, but those taxes are limited to paying the debts and providing for the common defense and general welfare. But general welfare shall not be construed to refer to the specific welfare of any particular group or individual. And of course, imposts and excises must be uniform throughout the United States. So you can’t tax in one state differently from another, which is also in the current Constitution. So, you know, taxes on imports, sales taxes, those sorts of taxes would be constitutional under our system.
Bob Zadek: So I read into what you have done the fact that you would, I’ll add reluctantly, but I don’t really have to, permit something like the European, the Western European tax structure of a VAT, a Value Added Tax, which is generally described as a sales tax at every level of production, which means a tax is added when lumber is sold to a furniture manufacturer, the lumber people who process the lumber and then sell it to the manufacturer would add a tax. So that the nature of a VAT or a Value Added Tax, which functions somewhat like a sales tax except it’s baked into the cost of goods, it’s not added only at the ultimate final sale level. So you would favor that as being constitutionally acceptable, but what’s interesting, just an observation, many people who think worry about tax policy are unhappy with a VAT because it’s a tax which is hidden. It’s just things cost more. And therefore, the legislature can somewhat painlessly increase tax rates and nobody would really know directly. The things would just vaguely cost 4% more or 6% more. So it allows taxation to be snuck in without people being aware of it, unlike an income tax when you fill out a form every—or somebody does for you—fill out a form every year. So I noticed that you constitutionally endorse the VAT, even though it has some political unpleasantness attached to it.
Timothy Sandefur: And now that you mention it, Bob, we probably should have also included a constitutional prohibition on withholding.
Bob Zadek: Ah! Well, actually, withholding is kind of commandeering, isn’t it?
Timothy Sandefur: Yeah. Well, and because it does the same thing like you just said, is people don’t realize their tax burdens because, you know, they—in fact, amazingly enough, when they get their tax refund, they think that they’re getting some sort of special gift, and all they’re getting back is they’re just getting the change back from the money that the government stole from them to begin with. So yeah, we probably should have prohibited withholding and forced everybody to take out a checkbook every year just to make sure that they were perfectly well aware of how burdensome the tax structure really is.
Bob Zadek: Tim, what you have just discovered is you now need the first amendment to your new Constitution, and it’s not even adopted yet, already we’re doing amendments. We’re going to send it out to the states. See how easy it is to mess up when you’re writing a Constitution? There’s so much stuff you say, “Oh my God, we need a do-over.”
Timothy Sandefur: Oh yeah. Well, and it is true, there have been—in going over this project, there were a number of places where we had to stop and we said, “Well, gosh, in Section 1 we said this other thing and now we’re saying a different thing, we have to figure out a way to make it uniform in what we were writing.” And it was a very interesting and challenging intellectual exercise for that reason.
Reforming Impeachment [23:56]
Bob Zadek: Now, a topic that’s just too juicy not to discuss is the subject of impeachment. And by the way, as an aside, I’ve been really enjoying watching Impeachment on FX about the Clinton impeachment. It’s really delicious if you’re a political junkie, it’s cool to watch. So that’s very much in my mind. So on the subject of impeachment, people are—there’s a lot of confusion about the grounds under which the president—but I’ll expand that to any holder of federal office—can be removed from office, which violates or undoes the electoral process. So tell us what you found as a libertarian, what you found wrong with the existing Constitution insofar as the issue of impeachment is concerned and how you went about correcting it.
Timothy Sandefur: This is another area where we thought the Constitution as it was written originally and as it was originally intended was perfectly fine, but that so many misconceptions have grown up around how impeachment operates that it needed to be clarified. Our view is that there should be a heck of a lot more impeachment than we have ever had in American history, not just presidents but judges and others as well.
And there was this—we were of course writing this during the impeachment—so the issue of whether a president could be impeached for something other than a crime or simply for being an unfit president, a lot of people think that that would be inappropriate, when of course it’s not. I mean, it’s perfectly legitimate and actually should be done more often to impeach a president simply because his behavior renders him unfit for office.
So we amended our Constitution to say—to use the original language—it says the president, vice president, all civil officers shall be removed from office on impeachment and for conviction of treason, bribery, or other high crimes and misdemeanors, and then we added “or other behavior that renders them unfit for office.” Because there’s no reason why presidents should not have to, you know, mind that people are watching their behavior and ensure that they keep within the boundaries of propriety. Under the theory that was circulating, gosh, can it have been more than a year ago now? The—a president could have just left the country, moved to Sweden and refused to answer his telephone, and then he can’t be impeached, right? Because he’s not committed any kind of crime. Well, that’s ludicrous. Of course you should be able to impeach a president if he does something like that. And so we added “any behavior that renders the president unfit for office” is properly subject to impeachment.
Bob Zadek: So does it require—would it require behavior as president, or what about pre-election behavior?
Timothy Sandefur: I think pre-election behavior is a perfectly legitimate target, and our language would allow a president to be impeached for pre-election behavior.
Bob Zadek: In other words, a president can take the oath and then impeachment proceedings start on the way off the platform in front of the Capitol, he’s served with impeachment papers.
Timothy Sandefur: Yep, I think it would be a healthier nation if we did that.
The Judiciary and Tribal Governments [27:11]
Bob Zadek: Now, there’s been a lot of—when Biden was campaigning and shortly after he got elected, he quite famously organized a commission to look into the organization of both the Supreme Court and of more subordinate federal judges. There was a discussion on court-packing, we remember, there was a lot of complaint going back to Merrick Garland and the whole process of selecting Supreme Court judges. There was a lot of complaint about the politicization of the Supreme Court and of course the more subordinate judges as well. You looked into a lot the organization of the federal judiciary, and what changes did you feel appropriate and why?
Timothy Sandefur: We actually made very few changes to the real structure of the courts. We did not, for example, set a number of justices on the Supreme Court or anything like that. We did make some changes to the jurisdiction of the courts, and this is another, as I mentioned before, that we made sure to keep an eye on tribal governments and how they operate too, and included a Bill of Rights protections against how tribal governments operate.
And we also allowed the federal courts to decide cases that might arise between tribal governments and people who live on reservations. And that’s important because there’s been a lot of Supreme Court precedents that have gotten those sorts of issues wrong, and including that so that you cannot sue in federal court if your tribal government violates your rights in almost any circumstance. So we fixed that.
But those are relatively minor, and we actually made relatively little change to the way that the court system operates in its structure. Now, as far as legal protections are concerned, of course, we made sure to constitutionalize individual rights that have been misunderstood or misinterpreted by the courts over the years. So we made sure to protect the privileges or immunities of citizens, for example, which is something the Supreme Court has turned its back on. And we protect the right of the fruits of your labor and things like this, which the courts have failed to protect. But as far as the judicial structure was concerned, we were more or less happy with that.
Judicial Term Limits [29:43]
Bob Zadek: What about term limits? There’s been a lot of discussion on term limits. As we know, federal judges serve for life, have life tenure assuming they have good behavior—a very general term. And there’s been a lot of examination on whether that ever made sense, if it did make sense at one time, whether it still makes sense or not. Whether judges, because that leads us to things like pressure on judges to time their retirement when the right president is in office, and it makes it kind of ugly and unpleasant. There’s a lot of strategy going on so that the right president with the right point of view gets to appoint more judges than others. What have you done about life tenure? What is your view, libertarian view, on whether that ever made sense, if it did make sense, whether it no longer does or not?
Timothy Sandefur: Well, the rationale behind it, of course, is to make the judges independent of popular will within acceptable boundaries, because you don’t want the judges just sticking their fingers in the air to see which way the wind is blowing and make their decisions according to that. So we wanted to protect judicial independence within boundaries, making sure that we’re not turning them into kings, which of course is exactly what the Founding Fathers had in mind. And we decided that we were comfortable with the way the Founding Fathers had done it, and so we left life tenure in place. I think you can certainly—I’m open to the argument that you should have something like a, you know, a 30-year term limit or a 25-year term limit or something like that, and we don’t have any, you know, principled opposition to such a thing. It’s just we saw no reason to fiddle with it in our Constitution. If somebody wanted to amend that and change that, I certainly would be open to the argument.
Bob Zadek: I think one of your colleagues, Ilya Shapiro, said “one and a half or two cheers” for term limits for Supreme Court judges. That is, he was mildly welcoming the discussion but didn’t feel strongly about it.
Timothy Sandefur: Yeah, and the reason why is we’re much more concerned with the power of Congress and the president than with the courts. Congress violates our rights every single day of our lives. And the courts, you know, they do bad things sometimes, very big bad things sometimes, but for the most part, compared to the other branches of government, the courts really are much safer.
The Administrative State and Executive Power [32:12]
Bob Zadek: Those who study what goes on in Washington, whether my hypothetical student of government is progressive or conservative or libertarian, invariably there is the complaint raised that the Supreme Court behaves often as a super-legislature. It goes beyond the judicial function and in effect is revising or passing legislation. Did you find you and your teammates content with the balance of power among judicial, executive, and legislative branches in your—in the Constitution? Or did you find—did you discuss at least, maybe leave alone, but discuss whether or not the Supreme Court has more power than it should have or than what was originally intended? And how did you deal with the complaint, if you felt it real, that often the Supreme Court behaves as a super-legislature?
Timothy Sandefur: Well, we think that that tends to be exaggerated, that complaint tends to be exaggerated. But we also think that as long as we impose the limits on Congress that we added to our Constitution and the limits on the president that we added to our Constitution, that otherwise we were happy leaving the Supreme Court the way it was in structural terms. The problems that we run into are often because the courts fail to enforce the Constitution, less than the court going beyond its authority. If it’s a choice between a Supreme Court that strikes down too many laws as unconstitutional and a Supreme Court that strikes down too few laws as unconstitutional, we would much prefer for the court to strike down too many laws as unconstitutional than for it to turn its back and allow Congress and the president to ride roughshod over our liberty. So we were comfortable leaving the court the way it is as long as the constitutional limits that we have added to the other branches are meaningfully enforced.
Bob Zadek: Another big topic that gets a lot of media attention, many, many, many people have strong opinions on, is whether the executive branch, the presidency and the administrative state, have for one reason or another—and I’m sure you’ll share with us the reasons—but for one reason or another, the executive branch today exercises far more power, A, than was originally intended, and B, than is healthy in our country. So speak to your team’s view on the current state of affairs insofar as the power of the presidency is concerned and what you have done, if anything, to adjust it.
Timothy Sandefur: Well, it is true, and I think the blame primarily resides in Congress more than the president for the fact that the president has too much authority. What you so often find is that Congress passes laws that allow the president basically this blank check of authority to do, you know, to just seize property and declare it a national park with just the signature on a piece of paper, or to dispatch the military without meaningful congressional oversight and that sort of thing.
On the military front, we included a provision—I can’t remember exactly the language that we used right now—but we included a provision that came out of a proposal in the 1930s called the Ludlow Amendment. This was an idea that prohibited—would have prohibited the president from sending troops into a military confrontation unless the United States itself was actually invaded. Here’s the language, I found it: “Only where the territory of the United States is actually invaded” is the phrase we use, can the president use the military in this way.
Now, the Ludlow Amendment was a proposal—it came about before World War II out of fear that the United States would get involved in another world war. And the idea was, well, you can only use the military if we’re actually attacked. And Franklin Roosevelt was very strongly opposed to this. He said, “Well, that will make it difficult for me to engage in international negotiations and diplomacy.” And the idea was, well, then what we should do instead is have a national plebiscite, allow the people to vote on whether to go to war or not. And that ended up failing. It was an interesting idea. Another example of the many efforts to amend the Constitution over the years that have fallen short, but may have been good ideas that we might want to reconsider now.
Bob Zadek: So you specifically limited the president’s power to use force without congressional approval or endorsement of that. But what—there’s been lots and lots and lots of complaints—I’ve had many shows, Philip Howard and others, complaining justifiably, of course, about the administrative state, the shadow government, the unelected fourth branch of government and the like. Obviously, the administrative state is not even provided for directly in the Constitution, nobody could have anticipated it, probably. Does that trouble you, or did that trouble you in your work, and what have you done to adjust it?
Timothy Sandefur: It does trouble us, of course. The big problem is that these agencies write rules and put them into effect without real congressional or presidential oversight. And so you have basically the laws that we live our lives under being written by hirelings instead of by the people’s elected representatives. However, we also understand that agencies are just basically an inevitable part of government. You can’t really not have these agencies of some kind or other existing.
So our view was as long as we have the constitutional protections for individual rights that we specified, prohibiting the government from intruding into your private affairs, for example, or from depriving you of the fruits of your labor and those sorts of things, as long as those things were faithfully followed, that we would be able to live with the existence of these administrative agencies. Now, I know a lot of, especially the libertarian listeners, might kind of roll their eyes at the idea of “as long as these constitutional protections are enforced.” Well, yeah, that is, you know, the Constitution is a promise, and it will only survive or only succeed if the people are faithful to the promises that are included in its pages. And the biggest problem that we think exists in the country today as far as the Constitution is concerned is that the constitutional promises are not followed because the people either don’t understand them or they elect officials who don’t particularly care about what the Constitution promises. So it is a pledge of faith to say, “Well, we will allow government to do these things, to create administrative agencies, for example, as long as it also respects the rights that are specified in the Constitution.”
Property Rights and the Fruits of Labor [39:59]
Bob Zadek: You have mentioned earlier, we discussed the income tax. I want to go back to—I’m going to start with the phrase “the fruits of one’s labors,” which is a phrase that preceded the founding of our country. It exists in writing during the Enlightenment era. The concept is people have a natural right, a property right, in the fruits of their labors. If they have earned money lawfully, then it’s their money and it can’t be taken away without their consent. It’s a core property right value. Now, I perked up and actually I smiled when I learned that you have virtually embodied in the Constitution the principle of retaining the fruits of one’s labors. And you mentioned earlier, and I’ll ask you to just help us understand a little bit more because it just gave me great pleasure to read it, how you borrowed from, I think, the Missouri Constitution. So tell us about what you have done specifically on that issue, just because it caught my attention, and more generally what you have done to solidify and reestablish one of our core doctrines, which is property rights.
Timothy Sandefur: Yeah, the primary concerns, the two main concerns about individual rights we had to categorize them that we have about the current constitutional regime in the United States is that it’s inadequate in its protection for private property rights and economic freedom generally, and it’s inadequate in its protection of privacy rights. And so we included in our version of the Bill of Rights—we of course kept in place the existing protections for free exercise of religion, the freedom of speech, and so forth—but we also clarified what these rights mean in some cases where that’s been doubted, and we preserved explicitly rights that we think are already implicitly protected by the Constitution, but because they’re implicit, that puts them at risk because people sometimes deny they exist.
So we borrowed from the Missouri Constitution a protection for the fruits of your labor. This is how it reads: We said, “No government shall prohibit the free exercise of religion or abridge freedom of speech or conscience, or infringe on the right of the fruits of one’s labors or the right to live a peaceful life of one’s choosing.” And our idea behind protecting the right to the fruits of one’s labors is economic liberty and private property rights. You should have the right to earn a living as long as you are doing something honestly in exchange for money from somebody who is willing to buy or sell from you, then that should be protected and you should have the right to keep the benefits of that transaction. And then, of course, “a peaceful life of one’s choosing” protects the rights of privacy and the broader natural rights that you can’t really specify. I mean, you can’t specify every individual right in a Bill of Rights because that would be an infinitely long list. You have the right to wear a hat, you also have the right to wear a hat on a Tuesday, you also have a right to wear a hat on a Tuesday evening when it’s raining, and so forth. So you’d have to just keep writing and writing. So in order to protect it as broadly as we could, we said that you have the right to live a peaceful life of your choosing, and that as well as the fruits of your labor clause protects your right to private property and your right to your paycheck.
Occupational Licensing and the Presumption of Liberty [43:59]
Bob Zadek: Now, as you and I discussed before the show, by implication, that provision you have just read attacks directly—it’s a frontal attack on occupational licensing. The governmental requirement that you have a license to practice law or medicine or the like. And also, it almost attacks all licensing. Indeed, marriage—I read into that—it takes an attack on a marriage license. The governmental requirement—but that’s of course at the state level, not the federal level, and maybe that’s different, although you basically incorporate the 14th Amendment, so everything we’ve talked about applies equally to the states. So it would seem to me it would make unconstitutional the issuance of a marriage license unless there is some exception, like driver’s licenses, for example, where the state can make a compelling case that the police power requires licensing of drivers. So help us understand how—I’ll use the word license as the core topic—as you approach it, how does that phrase you’ve just read affect government licensing activities, whether it’s practicing medicine or getting married or driving a car?
Timothy Sandefur: Licensing is a way of saying that the government owns your rights and is going to give them back to you if it thinks that it’s legitimate. What licensing says is, “You may not do this thing unless you get government permission.” And there are some rare circumstances where that does seem to be the appropriate thing to do, right? You don’t want to have somebody building a nuclear reactor without having beforehand learned how to do that and gotten a degree in nuclear physics, for example.
But we also run into the problem that those get overused. They get expanded to the point where existing businesses persuade the government to impose a licensing regime that makes it impossible to compete or illegal to compete against them. And so our provision that says the government cannot deprive you of the fruits of your labors or the right to the fruits of your labors, the idea behind that is to say if a licensing requirement is so burdensome or so unjustifiable in terms of public safety that it’s depriving you of the ability to earn a living without good reason, that that would be unconstitutional.
Or the right to live a peaceful life of one’s choosing, for example, if a state made it illegal for people to live together without a marriage license, for example, which of course no state has done, but if something like that were to happen, that would be infringing on your right to live a peaceful life of your choosing. Incidentally, that sort of overlaps with our other provision about the private affairs, that that would also violate our private affairs protection. There are some circumstances where licensing would be the most rational way to protect the public safety against certain dangerous activities. But that is, relatively speaking, a rare circumstance. Much more often, licensing requirements, whether it be business licensing or whether it be marriage licensing, much more often licensing requirements tend to be abused in order to deprive people unfairly of their freedom. And when it comes to marriage licensing, the most obvious example of that was the use of the licensing laws to prohibit intermarriage between the races in the years before the Supreme Court found that unconstitutional in the 1960s.
Bob Zadek: Tim, we have only about 30 seconds left. I’m going to do something unfair. You and I have heard and used most often the “presumption of liberty.” That is, in testing activity and the power of government, there is a presumption that an activity is permitted and the burden is on the government to show that it’s not permitted. Help us understand, if you can in 30 seconds, what the presumption of liberty means in your Constitution.
Timothy Sandefur: We do have a constitutional presumption. We say, “All persons are presumptively at liberty to enjoy and use their life, liberty, or property in their best judgment. And whenever the federal, state, or tribal government shall infringe on this right, the courts shall determine whether the government has constitutional authority for its action and a genuine justification for its restriction.” The idea being that people are born free and government is legitimate only where it can give a good reason for taking away our freedom. That’s the opposite of the progressive Constitution that the other team made that says that you are not free unless you can persuade the public to give you freedom through a democratic vote. We think that’s unjust. We think all people are born free and that government should only restrict your freedom if it has good reason. That’s really the basic fundamental difference between us and the other teams that engaged in this experiment.
Bob Zadek: This is Bob Zadek. We have spent the past hour with Tim Sandefur discussing the Libertarian Constitution, a rewrite of the American Constitution at the invitation of the National Constitution Center. What would it look like to live in a libertarian country? You have just heard an hour of it. I hope you’ve enjoyed the show. Many thanks to Tim and his teammates for giving us a new approach to our relationship to our government. Bob Zadek saying, if you’ve enjoyed the show, please let us know by liking us in our podcast, giving us a whole bunch of stars if we deserve it. And please stay tuned again next week for another hour of libertarian thought. Thank you so much. Thanks to Tim.
Timothy Sandefur: Thank you. Enjoyed it.
Bob Zadek: And please, have a nice weekend, everyone.