Timothy Sandefur is an attorney who served as a member of the libertarian team commissioned by the National Constitution Center for its Libertarian Constitution Project. At the time of the episode, he was Vice President for Litigation at the Goldwater Institute, where he litigated on property rights and individual freedom issues. He is the author of many books, an adjunct scholar with the Cato Institute, a graduate of Hillsdale College and the Chapman School of Law, and a professor of law at George Mason University’s Antonin Scalia School of Law. He appeared on The Bob Zadek Show to discuss the libertarian team’s proposed revisions to the United States Constitution. Timothy Sandefur on The Libertarian Constitution (2021)
The National Constitution Center Project
Bob Zadek introduced the project as an initiative of the National Constitution Center, which he described as the only organization chartered by Congress to further understanding and appreciation of the Constitution, located in Philadelphia and nonpartisan. The Center commissioned three teams of scholars—libertarian, progressive, and conservative—each working independently, to write or rewrite the Constitution in a way more consistent with their respective values. The teams delivered three different Constitutions that, according to Zadek, differed quite dramatically in some respects while remaining more or less consistent with the current Constitution’s structure. Timothy Sandefur on The Libertarian Constitution (2021)
Sandefur characterized the libertarian team’s work as a rescue of the Constitution. He said the team’s initial impulse was to hand back the existing Constitution and say it was libertarian and needed no changes, but that a number of things needed to be remedied. The team took the existing Constitution and incorporated the existing amendments, leaving out the income tax, and wrote the Thirteenth Amendment, which prohibits slavery, into the body of their Constitution rather than leaving it at the end. After weaving in the existing amendments, the team began to tinker. Timothy Sandefur on The Libertarian Constitution (2021)
Intellectual Property and Copyright Reform
Sandefur identified intellectual property as an area where the Founders got it incomplete rather than wrong. He said many libertarians, including himself, have real problems with the idea of intellectual property at all, and that the US Supreme Court has said Congress can basically renew the length of a copyright indefinitely. The libertarian team wrote into their Constitution that copyrights and patents may still exist but last only 28 years—the period patents lasted at the time of the Founding Fathers—so that Congress cannot keep renewing copyrights every time Mickey Mouse is threatened with becoming public domain. Timothy Sandefur on The Libertarian Constitution (2021)
Sandefur explained the libertarian critique of intellectual property: it is not really property but a government-created monopoly that makes it illegal to imitate or copy another person, which means it is an initiation of force against someone who has not initiated the use of force, violating a fundamental principle of libertarian political theory. He acknowledged that copyright and patent reward and incentivize creation, and described the team’s compromise as allowing a limited amount of time of exclusive use to creators as a way of subsidizing them, but not allowing them to indefinitely prohibit anybody from profiting off an idea. He cited as an example the 1980s Men at Work song “Down Under,” which 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, requiring the band to pay a whole bunch of money to the rights holders. He called that ridiculous and an injustice. Timothy Sandefur on The Libertarian Constitution (2021)
Eliminating the Income Tax and Reforming Revenue
Zadek framed the elimination of the income tax as doing away with the Sixteenth and Seventeenth Amendments, both passed in 1913, which he said destroyed the core structure of federalism the Founders gave us. He asked how, on a constitutional level, the government would replace the revenue lost when the income tax is unconstitutional. Timothy Sandefur on The Libertarian Constitution (2021)
Sandefur said that if the libertarian Constitution were adopted, Congress would have less need for money and there would be no need to replace the current flood of earnings the government takes away every year. He acknowledged that the team recognized the existence of taxes and was in some sense compromising on libertarian principles for constitutional purposes. Their Constitution allows Congress to lay taxes but expressly prohibits income taxes. It permits Congress to “lay and collect taxes, duties, imposts, and excises”—language from the current Constitution—but prohibits spending in particular ways: taxes are limited to paying the debts and providing for the common defense and general welfare, and general welfare shall not be construed to refer to the specific welfare of any particular group or individual. Imposts and excises must be uniform throughout the United States. Sandefur said taxes on imports and sales taxes would be constitutional under their system. Timothy Sandefur on The Libertarian Constitution (2021)
Zadek observed that this would permit something like a European value added tax, which he described as a sales tax at every level of production, and noted that many people unhappy with tax policy dislike a VAT because it is hidden and allows taxation to be snuck in without people being aware of it. Sandefur responded that the team probably should also have included a constitutional prohibition on withholding, because it does the same thing—people do not realize their tax burdens, and when they get a tax refund they think they are getting a special gift when they are just getting change back from money the government stole from them to begin with. He said they probably should have prohibited withholding and forced everybody to take out a checkbook every year to be aware of how burdensome the tax structure really is. Zadek joked that Sandefur had just discovered the need for a first amendment to the new Constitution. Timothy Sandefur on The Libertarian Constitution (2021)
Reforming Impeachment
Sandefur said impeachment was another area where the team thought the Constitution as originally written and intended was perfectly fine, but that so many misconceptions had grown up around how impeachment operates that it needed clarification. The team’s view was that there should be a heck of a lot more impeachment than has ever occurred in American history, not just of presidents but of judges and others as well. Timothy Sandefur on The Libertarian Constitution (2021)
The team amended their Constitution to say that the president, vice president, and all civil officers shall be removed from office on impeachment and conviction of treason, bribery, or other high crimes and misdemeanors, and added “or other behavior that renders them unfit for office.” Sandefur said it is perfectly legitimate and should be done more often to impeach a president simply because his behavior renders him unfit for office. He offered the hypothetical that under the theory circulating at the time, a president could leave the country, move to Sweden, and refuse to answer his telephone, and then could not be impeached because he had not committed any crime—which he called ludicrous. Asked whether pre-election behavior would qualify, Sandefur said pre-election behavior is a perfectly legitimate target and their language would allow a president to be impeached for it. Zadek asked whether a president could take the oath and then be served with impeachment papers on the way off the platform; Sandefur said he thought it would be a healthier nation if we did that. Timothy Sandefur on The Libertarian Constitution (2021)
The Judiciary and the Administrative State
Zadek asked whether the team was content with the balance of power among the judicial, executive, and legislative branches, or whether they discussed whether the Supreme Court has more power than it should. Sandefur said the complaint that the Supreme Court behaves as a super-legislature tends to be exaggerated, and that as long as the limits the team added on Congress and the president are enforced, they were happy leaving the Supreme Court the way it was in structural terms. He said the problems often arise because courts fail to enforce the Constitution rather than because they go beyond their authority, and that if forced to choose between a Supreme Court that strikes down too many laws and one that strikes down too few, the team would much prefer the former. Timothy Sandefur on The Libertarian Constitution (2021)
On executive power, Sandefur said the blame primarily resides in Congress more than the president, because Congress passes laws that give the president a blank check of authority to seize property and declare it a national park with a signature, or to dispatch the military without meaningful congressional oversight. The team included a provision drawn from a 1930s proposal called the Ludlow Amendment, which would have prohibited the president from sending troops into a military confrontation unless the United States itself was actually invaded. The language the team used was “Only where the territory of the United States is actually invaded.” Sandefur said the Ludlow Amendment came about before World War II out of fear that the United States would get involved in another world war, and that Franklin Roosevelt was very strongly opposed to it, saying it would make it difficult for him to engage in international negotiations and diplomacy. The idea was that there should instead be a national plebiscite allowing the people to vote on whether to go to war, but it failed. Timothy Sandefur on The Libertarian Constitution (2021)
On the administrative state, Sandefur said the big problem is that agencies write rules and put them into effect without real congressional or presidential oversight, so that the laws people live under are written by hirelings instead of by the people’s elected representatives. But he said the team understood that agencies are basically an inevitable part of government and cannot really not exist in some form. Their view was that as long as the constitutional protections for individual rights they specified—prohibiting the government from intruding into private affairs or depriving people of the fruits of their labor—were faithfully followed, they could live with the existence of administrative agencies. He acknowledged that libertarian listeners might roll their eyes at the idea of “as long as these constitutional protections are enforced,” and said the Constitution is a promise that will only succeed if the people are faithful to the promises in its pages. The biggest problem in the country today, he said, is that constitutional promises are not followed because people either do not understand them or elect officials who do not care about them. Timothy Sandefur on The Libertarian Constitution (2021)
Across episodes
The excerpts come from a single episode of The Bob Zadek Show, so they show no development of the topic across multiple episodes. The episode touches on the Libertarian Constitution Project, intellectual property, income tax elimination, impeachment reform, judicial power, executive war powers, and the administrative state.
What the sources do not cover
The excerpts do not state the outcome of the Libertarian Constitution Project or whether its proposed Constitution was ever adopted or formally considered. They do not give the full text of the libertarian team’s Constitution, the names of Sandefur’s fellow team members, or the specific provisions on property rights and the fruits of labor that the episode’s final segment heading references. The excerpts also do not cover Sandefur’s earlier appearances on the show, his other books, or his litigation work beyond the general description of his position at the Goldwater Institute.
Episodes
1 appearance, 2021–2021.
- Timothy Sandefur on The Libertarian Constitution (2021) — The Libertarian Constitution Project. Goldwater Institute