The Progressive Constitution
Caroline Fredrickson is Distinguished Visitor from Practice at Georgetown Law Center, Senior Fellow at the Brennan Center for Justice and author of The Democracy Fix, Under the Bus, and The AOC Way: The Secrets of Alexandria Ocasio-Cortez’s Success.
She joined me or part II of my series on the National Constitution Center’s brilliant experiment, soliciting three revisions to the Constitution: one libertarian, one conservative and one progressive.
Imagine you had the chance to rewrite the Constitution so that it reflected your ideal values. Do you think you would correct mistakes based on the knowledge of a person living in the year 2021? Caroline Fredrickson did just that at the National Constitution Center. I had the chance to ask her about the legal and practical difficulties of such a project.
If you missed my show with Timothy Sandefur, you can listen to the podcast or read the transcript to get up to speed on the libertarian perspective
“We wanted to maintain the structure of divided government and robust protection for individual rights because everyone on the team agreed that our constitutional democracy depends on that.”
“The team had to consider that not only constitutional law professors would participate, but people of varying backgrounds. So participants weren’t simply writing a new document to match their taste but to better understand current debates. If you can draft a constitution, you’ll understand what officials are doing.”
“We think the idea of separation of powers, federalism, and a system of checks and balances was worth continuing. It was visionary. It was radical.”
“We believe that you anchor key rights in the document, but you don’t try to enumerate every single one. Most of it is left to the political process.”
Bob Zadek 00:07
A short while ago, the National Constitution Center, which is an organization funded by Congress, and founded to promote the study of our core founding document, the Constitution. It promotes the study and it does a wonderful job on educating the public about the Constitution. They are located in Philadelphia, Pennsylvania, a wonderful place to visit. The National Constitution Center initiated a fascinating project, which has now been completed. The National Constitution Center brought together three teams of distinguished students, law professors, who study and teach the Constitution. One team orientation was progressive. Another was libertarian. Another was conservative. Each team was asked to rewrite the Constitution, so that it would be the ideal constitution reflecting their values. The work product is fascinating. It was thoughtfully done. Studying the three draft constitutions tells the reader so much the reader would otherwise not have a convenient way to learn about how a constitution could have been drafted, what might be wrong as a strong worry with the existing constitution, in what way should the constitution be fixed. The work product is fascinating. Two weeks ago, I had Timothy Sandefur as a guest on our show. He was a team member for the libertarian constitution.
This morning, I am honored beyond my ability to say it to have Caroline Fredrickson join us this morning. She’s a distinguished professor of law at Georgetown University. She’s a senior fellow at the Brennan Center for Justice. She recently was appointed by President Biden in his commission to study the Supreme Court. Caroline was a team member on the progressive team and was gracious enough to agree to join us this morning to explain to us the changes that the progressive constitution made from the work product of the founders, as amended up through the current date. This will help us understand better than perhaps any other hour one can spend, what the progressive view of how America should be governed, what the goals are for improved governance in America and the relationship between citizens and its government. Caroline, welcome to the show this morning. Thank you so much for agreeing to give us an hour of your time.
Caroline Fredrickson 04:03
Sure, it’s a pleasure to be with you.
Bob Zadek 04:06
Caroline, when you went about rewriting, revising, whatever verb we want to use in the Constitution, do you feel that you were correcting mistakes that the founders made or do you feel that you are merely updating the Constitution having been written in 1787 to reflect life on the ground in America in 2021 or were you actually making changes because you felt that your team’s approach to governance was different than the founders and now you have a shot at suggesting a different orientation? Can you label or identify how you saw your task?
Caroline Fredrickson 05:00
It’s a good question. It was a complicated endeavor. That was the big question we faced right at the beginning. How do we embark upon this big project? There were a few things that we had in mind. One was that the original draft of the Constitution was drafted in 1787. It certainly had its strong parts.
Our thinking, and as we had discussed before we got on the air, about why we just didn’t start with a whole new draft was in part was that some of the structural elements in the Constitution were exactly things that we wanted to continue. There was another overarching aspect to this that I think is important to understand. You had mentioned how reading the different constitutions that were drafted by each of the groups gives insights into different perspectives on our Constitution and on constitutional governance in the United States. We were conscious of the fact that there are a lot of people who might come to this project. They’re not constitutional law professors, and so may not be steeped in the current debates or the historical debates over different parts of the Constitution. We thought it was actually going to be much more useful exercise for the kind of people who would be drawn to this and be interested but weren’t necessarily going to have spent their lives as you have in the law or as I have in the law, and therefore be somewhat attuned to the kinds of debates that go on in the legal profession over different aspects of the constitution. As originally envisioned, we were gonna have a lot of live programs. It was going to be a big unveiling at the National Constitution Center in Philadelphia, a big opportunity for the public to engage with the different constitutions that we had drafted.
That didn’t happen in a live form. It did happen virtually. We did a number of virtual programs. All this can be found on the website of the National Constitution Center. All that being said, we wanted it to be accessible to a broader public. That meant it made a lot more sense in many ways because it makes more clear what the current debates are over the Constitution than simply writing a wholly new document. There were those two kinds of major elements to our thinking. One is that the original Constitution had this structural divide in the government that was a very useful and critical part of the way we understand constitutional democracy, but also that it just made more sense also from the educational point of view. That is such a big part of what this project was all about, certainly is the major mission of the National Constitution Center.
Bob Zadek 08:43
The original Constitution, and let’s include the first 10 amendments even though technically, they were amendments and not part of the original, but since they were contained virtually contemporaneous with the drafting. Let’s include the original Constitution and the first 10 amendments as the original draft. Before it was exposed to 240 years give or take of Supreme Court interpretation, before it was amended, probably 17 times if we exclude the Bill of Rights, do you feel you are correcting the original Constitution or was the original Constitution consistent with the values you would have wanted it to adopt before it was amended or did you have to make changes in the original point of view of the Constitution? We all know the great failure. Most of us consider it to be a failure. It was a compromise a political compromise on the issue of slavery. We could spend that entire show on slavery. It’s the contradiction between the promises in the Declaration and the reality of the Constitution. Putting aside the big issue of slavery, do you feel the founders, their core values, had to be adjusted by your work product or were you pretty much consistent with the values and just fine tuned it?
Caroline Fredrickson 10:42
I find that a very hard question to answer putting slavery aside. I just have to say, there were certainly several sections of the Constitution that were dealt with slavery. I can’t really quite answer your question that way. I would say, we think division about structure of government certainly was worth continuing, and the idea of separation of powers and federalism, and the divide between the different branches and the vertical and horizontal idea that that government can have a system of checks and balances. It was visionary. It was radical. That is something that we continued. I think if you get into values, it’s just hard not to talk about slavery. I think we should just, as you said, we’re not going to talk about it to a great extent. Let’s just say that we kept the structural element from the original Constitution.
Bob Zadek 11:55
I hope what I’m about to say don’t read too much into your commentary, as you explained to readers what you were trying to accomplish and what adjustments you were making. There was, it seemed to me, at least when I read it, there was I’ll say attention, but nothing that dramatic between protection of natural rights. I’ll use the natural law concept, natural rights, the rights of every human being, that many believe human beings have, simply by dint of their humaneness, right to travel, right to freedom of conscience, and the like. Many of those rights are embodied in the Bill of Rights, and they are enumerated. They’re expressed, and there are other rights in the Ninth Amendment that are captured as unenumerated rights you expressed in commentary and a bit in the text that the best way to protect those rights is through a more robust democracy. When I read it, I wasn’t sure how that would work. What is the protection from the majority? Enhanced democracy means the subtext is majority rules. What protections are there for the minorities.I don’t mean just racial minorities or religious minorities, people who are in the 49% of the vote on any issue. What is the protection for the minority, the 49%, on their basic rights? How does your constitution protect if it does those basic rights against the will of the majority which would compromise those rights?
Caroline Fredrickson 13:59
As we’ve said in our introduction, we really do believe in democracy and one of the major elements of our draft of the Constitution is to provide much more robust protections for democracy, free and fair elections. I’m talking about 49%, as if it was a solid block. In the way that our elections are structured, they’re actually run in a free and fair way, and all Americans have the right to vote that we don’t have gerrymandering and that we have uniform requirements for voting across the country. There will be people drawn to different policy proposals and different politicians based on different times. I think democracy is the best guarantee that there would be a variety of different protections, but we don’t eliminate the Bill of Rights. We also ensure that there are key protections that are part of our Constitution, fundamental rights, rights of conscience, which include religion, but also freedom of conscience for those who may not be religious, so this I would think would appeal to libertarians. We go back to James Madison’s original conception of freedom of religion and freedom of conscience or thought. We also provide protections for the Equal Rights Amendment, gender, sexual orientation, gender identity. We reaffirm protections for minorities based on race. We have robust protections. I think what people might have expected is that in the caricature of what progressives might do, if I just have rights, the Bill of Rights would become 100 rights long or more. We believe that you anchor key rights in the document, but you don’t try to enumerate every single one. Most of it is left to the political process. The political process is one that we ensure in our constitution is one that is free and fair, that there aren’t unfair limits on certain groups of voters to participate in the process, that there aren’t these exaggerated gerrymanders that happen now. I happen to live in Maryland. If anybody wants to look at the maps of Maryland, you could see a certain example, some absolutely crazy looking districts. We also carve out campaigns by reasonable campaign finance rules from the freedom of speech and the First Amendment to ensure that what we have now is the abuse of money in the political system to change outcomes. We allow reasonable regulations, so that we can actually live in a system that’s not as corrupted as it is.
Bob Zadek 17:44
I suspect you’re going to mention campaign finance reform, and the Supreme Court decisions that trouble many people in the country, predominantly, but not exclusively, progressives. I want to just focus on that just for a moment because freedom of the press is enshrined in your constitution as it should be. The thought I had on that issue, the reason I’m raising it now is because of the concern about money. The press is for the most part an activity carried on by private business. Businesses have power because of being a business. Why is there no fear of corruption if the power of the press, which is nothing other than a private corporation carrying on a specific business activity, among others? Why should that business activity enjoy the power to use its money to promote its worldview, not a corporation, which is a manufacturing company, which is promoting, which is using its money to promote its business activity? Why should the core activity of the corporation matter in terms of its influence?
Caroline Fredrickson 19:27
We frame this in a specific way to say that Congress shall have the power to establish by law regulations, by law regulation of the financing of campaigns for elected office provided such regulations are reasonably aimed at ensuring that all citizens are able to participate in elections meaningfully and on equal terms. We’re not restricting the right of manufacturing companies to have their point of view. The question is, can Congress pass regulations that are narrowly tailored and reasonable to ensure that we have a system that is placed? We don’t try a particular approach to this in our Constitution, but simply allow Congress to go back and consider, for example. Some of the regulations that it’s had in the past that have been dismantled by the current Supreme Court. Reasonable limits on donations or expenditures, much more transparency, there are a whole number of things that might be done. public financing of campaigns, small donor matching. I don’t think it’s really that what Congress might end up doing or state governments would be something that would have to fit within the language that we have crafted.
Bob Zadek 21:03
You focused on pretty much what you would and many believe to be an abuse of wrongheaded Supreme Court decision in allowing money to have what many people believe to be excessive influence. The spending of that money is anti small D democratic, and you want to empower Congress to limit it. An issue that I looked for when I read your work product. I’d like you to help us understand it. I’ll give one word, and then I’ll expand it a little bit for our audience. The one word is federalism. I looked for the progressive view of the allocation of power between the federal government and state and local government. I couldn’t find a lot other than, and we may discuss this as a separate topic, the expansion of the phrase general welfare, which exists in the original Constitution, which there has been a discussion forever, about whether general welfare is a special grant of power or whether it simply modifies other grants of power. If you could give us the big picture, and whether it’s your view or your team’s or your work products view of what you have done, if anything, to adjust or to leave alone, that allocation of power. Originally states and localities had broad what’s called bliss power, a somewhat misleading label. They had the plenary power on the health, welfare and safety of the citizens rather than the federal government. That power has been gradually over time moved to the federal government extensively. Have you left it alone? Have you encouraged the movement of power to Washington? Or how does your constitution feel about that allocation of power and responsibility?
Caroline Fredrickson 23:20
We don’t make major changes, except as you mentioned, the language that we insert about general welfare is meant to respond to the fact that there are times when there are major problems that are national in scope that have been difficult or even impossible to address through state or local action. We wanted to clarify, although we think it’s already evident in the current constitution, but fear that the Supreme Court doesn’t necessarily see it that way. We wanted to clarify that Congress can actually take such action. We saw that as more of a clarification than actual of making a major change into the structure of federalism. The other point, however, that is worth mentioning is that we do change the Senate. There are some who think the Senate should just be abolished. We certainly did not do that. We did make some adjustments to how the Senate is structured to make it more representative because we think as the nation has grown. The Senate, which has always been somewhat out of sync with where the population is, has become extraordinarily so where you have the ratio of population to senators from a state like California to a state like Wyoming is so radically different and gives Wyoming so much more representation now. As I said, we did not eliminate the Senate and we did not eliminate state representation. What we did do was ensure that every state would have one senator and then adjust the other senators based on population, so you’d continue to have a Senate representing the states, but it would also give somewhat more to California than it would to Wyoming.
Bob Zadek 25:32
I’m so glad you expressed it the way you did because your issue was you were explaining to us that you were correcting the undemocratic that is reflective of the population as a whole, the undemocratic Senate. You were making it more democratic. By the way, of course, you expressly embraced the 17th Amendment, which was a first step in that direction back in 1913 when it changed the, to the direct election of senators from senators being appointed by state legislatures. We may get into that we may not have time. As to the undemocratic nature of the Senate, there’s always a discussion on any topic, whether that is a feature or a flaw. The founders, I think, would have said that was somewhat undemocratic. That is not reflective of the population as a whole, the undemocratic nature of the Senate was intentional, that the people had their House, the House of Representatives, it was called the people’s house, and the Senate was vaguely similar to the House of Lords, the wise men, a step removed from the passions of the moment from therefore the political process, the more thoughtful body, that was the structure. Now you can say, that just doesn’t work. It’s not democratic enough, a perfectly appropriate point of view. I just wanted to mention that what you are doing is , to some degree, rejecting the founders view, in that they felt it necessary to have a legislative body that was not as subject to the passions of a moment, and you are making it somewhat incrementally more subject to those passions. That’s a legitimate discussion. It’s for the public to decide. Is that a fair characterization?
Caroline Fredrickson 27:53
I think that’s a very fair characterization. I’d also say that part of, the, looking at the history of the adoption of the Constitution, part of the way, part of the reason for the Senate was partly compromised in order to bring onboard the southern states to vote for the adoption of the Constitution. As I said, we’re is you set out earlier, we’re not we could spend many a show talking about slavery and the impact that it had on the Constitution, but the Senate, the Electoral College, there’s a certain relationship between these topics. As we said, we do see value in the federal structure, which we think adds to government accountability, facilitates policy experimentation. Right now, we have gotten to an extreme because the people hadn’t, there hadn’t been the law, there wasn’t a state of California at the time. Certainly there was no sense that the states have become so completely disproportionate in terms of population size. As you mentioned, it’s more of a tinkering than it is a radical change in order to remedy what we think are some of the extremes of the current system where, again, I mean, not to pick on Wyoming, I could pick, North Dakota, but just to say that something that was a bit different when you looked at a state like New York and a state like, say, South Carolina in the late 1780s. Now, when you look at the difference between states like Wyoming and California there are just so many more. The magnitude of the difference is so much greater. We do make an update and a correction and improvement on the original Constitution in this regard.
Bob Zadek 29:49
Going back to discussion a few moments ago on general welfare, in my opinion, you broadened the expressive power of Congress, because you empowered Congress to legislate. I’ll give a quote just so the audience knows what got my attention. The phrase is, this is in a specific grant of power to Congress to legislate for the general welfare. That’s the phrase I mentioned a few moments ago. Here comes the key, insofar as such action is necessary to address the problems that are national in scope, and that are unlikely to be addressed adequately by state or local governments. Wow, adequately addressed, adequately necessary. I tried to apply that or read into the minds of your team. How do you apply that just to give examples of what these words mean in practice? In your opinion, would these words expressly empower Congress to, for example, set a national minimum wage or a 55 mile an hour speed limit or determine the legitimate nationwide legal drinking age? Those everyday activities, would Congress be expressly empowered to legislate in those fields or would it be implied or would they not have the power? Not because those are important, but they’re representative.
Caroline Fredrickson 31:46
Right? It, as we say, in the language, it has to be necessary. It has to be an area where their states and localities are not capable of addressing the problems. I think we do happen, a minimum wage, the Fair Labor Standards Act, that’s a national minimum wage, as well. What we really attempt to do here is as I said earlier, we believe that the Congress already has the power to address national problems, problems that cross state lines, like pandemics, for example. Other issues were there, one state could simply not, for example, pollution. There are things that you need a national government to be able to address. We believe this is a clarification because we think the Supreme Court has been getting it wrong. That it has a very cramped view of congressional authority.I think that again, any issue would have to be grounded in an understanding that there was this a national problem that was important, that needed to be addressed, that a single state would not be able to be responsive to addressing this problem.
Bob Zadek 33:17
You said something just now, that really piqued my interest and my curiosity, the phrase was a national problem. Here’s why I focused on that, why my mind was drawn to that when you use that phrase. Is something a national problem if each state has it? Let’s take minimum wage. Now, that is only national, if you declare it to be national. Minimum wage is as personal as it can be. It affects one person. Help me understand and listen when you identify something as national. Is it national because it affects everyone, or national because the problem can only be solved globally, like nationally, like a pandemic, which knows no state borders. I’m not picking minimum wage because it is the most important issue of the day. I’m picking it because it helps us focus on something tangible to see how we apply the principles.
Caroline Fredrickson 34:33
You raise that because I guess I’d have to ask you, do you think the Fair Labor Standards Act is unconstitutional, then?
Bob Zadek 34:40
The Supreme Court didn’t. Therefore that answers the question that they didn’t think it was unconstitutional, but I did. So the answer is what Bob thinks is irrelevant in the national
Caroline Fredrickson 34:53
We agree with the Supreme Court on the Fair Labor Standards Act determination that sets a national minimum wage as the floor and states are free to go above it. That’s the state of the law now. That’s why, as I said, what we attempt to do is clarify that kind of understanding. There are certainly challenges like in during the Great Depression of trying to ensure that there were policies that were going to enable us to come out of that terrible time. They needed to be addressed nationally. Congress has to do its work. It does studies and it provides analysis to provide the background for why it takes such action. It’s called creating a record, so we envision that same kind of process. I can’t enumerate every single possible area that might require a national response. Certainly when you have a pandemic, I think that’s the one of the most clear areas where Congress needs to be able to act to ensure that that action is taken early enough in the process to to keep us safe and to keep people from dying.
Bob Zadek 36:33
What have you done? There’s been a lot of discussion, as we all know, I suspect, including most of my listeners, about using the phrase imperial presidency, the President has been able to exercise far more power than the founders envisioned, then the Express language of the Constitution, even as amended. That has been, many people say, an abdication by Congress, delegating too much power to the administrative state. Caroline, we’ll discuss the administrative state in a moment. Has your team been troubled by current affairs? 2021 America, the power of the presidency? Were you troubled by it and be whether you’re troubled by it or content with it? What does your constitution change in that balance of power between the legislative, the executive and ultimately the judicial?
Caroline Fredrickson 37:47
That’s a great question. I think it would have been hard for anybody not to have been troubled by a few of the past years. Our changes to the Constitution in this regard were not prompted by current events, but really by an overall historic analysis of the Constitution. I think this is a really interesting area because of all the places in this constitutional drafting project where the three teams most converged, it was really around limitations on executive power. The conservative team, the Libertarian team, and the progressive team all came separately to the realization that we needed some more limits on presidential power. All of us, all three teams, looked at it making it clear that impeachment of the president can actually occur without needing a criminal act. There was a lot of obfuscation at this point. I think all three teams thought it was the law beforehand, but because of things that had been said in the general debate around the to impeachment of Donald Trump, it was clear that there was needing to be more clarification, to say that abuse of the public trust, which is really the original conception of impeachment, should be made clear and explicit in the constitution. We also strengthen Congress’s oversight powers. Interestingly, both the progressive and the conservative teams agreed that we should replace the Electoral College with a national popular vote and support a legislative veto. There were certainly other areas that we can talk about. We wanted a two thirds vote for an attorney general so that we could actually have an attorney general that was not necessarily so partisan. We addressed each other. Again, there was a lot of commonality: the three teams all agreed on term limits for the Supreme Court. The Libertarian team supported it, but didn’t put it in their constitution. We all but the Conservatives and the progressives put 18 year term limits for Supreme Court justices in the constitution. There were some real areas of convergence here, especially, as I said, around limitations on presidential power.
Bob Zadek 40:41
Caroline, I’m going to make one humorous, I think, observation and just ask you a question. It’s very rhetorical. Of all the weighty issues that you dealt with in such an interesting fashion, preservation of the post office? Oh, my goodness, I was hoping that wouldn’t be there. Don’t you use FedEx? Please don’t respond. It’s a waste of airtime for us to debate whether or not the post office should be enshrined in the Constitution. I’ll just say, give me a break. Please don’t respond to doing that. Just throw in a little levity, perhaps constitutional levity into the conversation. In your constitution, tell us a bit more only because we have the benefit of your thinking and your work on President Biden’s commission to review the Supreme Court. Tell us just as a separate topic, just very briefly, what did you do to correct? Obviously, during this discussion, you had some issues with the structure of the Supreme Court vis-a-vis the other two branches of government. Also in your introduction, you complained about maybe complaint is too strong a word, government. This is a quote, government by judiciary as opposed to democracy. You’re a bit unhappy with 21st century America and the relationship with the Supreme Court. What have you done? Maybe you have already answered the question with 18 Year Term limits? What else, if anything, have you done to correct what seem to be the imbalances now in the power of the Supreme Court?
Caroline Fredrickson 42:48
That is really the major element. I think it’s worth reiterating that this was across the board for all three teams, getting libertarians and putting it in their constitution, but supported. Ilya Shapiro was one of the team leaders of the Libertarians separately of supporters that I think the other team members also do. 18 Year Term limits would get rid of life tenure for federal judges the way that the Constitution most people understand serving under good behavior is life tenure. It would replace it with a single 18 year term. This is something that one of the founders of the Federalist society, Steve Calabresi, a law professor, has supported 18 year terms. I ran the American Constitution Society and supported 18 year terms, and is also consistent with historical terms of service for Supreme Court justices that it’s only in the late 20th century that Supreme Court justices started serving such excessively long periods of time. It is something we believe that would make the court less partisan. Nobody would deny that the current battles over Supreme Court justices nominations are unseemly and unpleasant and partisan. It would reduce all partisanship in that regard. I think it also has a lot to say about just the fact that the Supreme Court, as it is currently constructed, has an enormous amount of power. The idea that somebody can sit on the court for 40 years is, I think, really inconsistent with constitutional governance and democracy, which is not to say that we’re saying that these Supreme Court justices should be elected, obviously not. 18 years is still pretty long but it does provide a seat for life in making some of the most important decisions that affect Americans. That and that are undoable.
Bob Zadek 45:12
I’ll just mention in passing, not inviting a discussion, John Marshall was pretty productive after his 18th year on the Supreme Court. He was very influential, and most people would think in a positive way. We’d be deprived of that. That’s not an argument against it. I strongly support term limits.
Caroline Fredrickson 45:35
If we were to spend some time, we’d come up with plenty of counter examples of justice. [ ], who were seat warmers that could have perhaps it would have been better for this country if they had moved on?
Bob Zadek 45:49
For sure. I also would like to just thank you. Just to mention to our audience, I noticed that you constitutionally abolished the death penalty. There wasn’t much discussion on that in the literature that I read in preparing for the show. I welcome that. Just for all that it’s worth, I also noticed you seem to have a constitutionally prohibited life imprisonment, which struck me a little. It’s different. It looked far less dramatic than the death penalty. I didn’t quite understand why life imprisonment was unconstitutional, but imprisonment for a period up to the last 48 hours of your life is constitutional. Maybe if you have a sentence or two, if he thought at all, it’s not an important topic, compared to the other issues. I just noticed it and I was curious.
Caroline Fredrickson 46:55
Wwe do address quite a bit of issues around criminal justice reform, and maybe more productive to talk about that, because that’s just I think, just to say that sentences should be rational and based on actual terms of yours. We do also look at the right to counsel and may strengthen it in criminal proceedings. we also add what I think is something that certain states have done, but it’s really important is to recognize that there are certain civil proceedings in which people should have a right to counsel because they’re dealing with such existential issues, like, loss of a child child custody, or, or some such were not having a representation could be devastating to somebody’s life. we did add that I think all the groups also looked at sovereign immunity, which perhaps your listeners are familiar with these days, because it’s come up a lot.
Bob Zadek 48:00
Thank you so much for raising it.
Caroline Fredrickson 48:05
We all agree that there should be state and federal sovereign immunity should have some limitations on it.
Bob Zadek 48:16
I was a little disappointed. You didn’t deal with qualified immunity. That’s for another show. We don’t have to discuss that. We only have a few minutes left. Do you have any comments constitutionally? You spent some time discussing it in your constitution and in your writings describing the process. You are reasonably defensive, not defensive in that way you defend as necessary, the administrative state, which is the bureaucratic, unelected fourth branch of government, which is anything from the independent agencies like the FCC and many others, to just other administrative agencies. On the one hand, you are reasonably respectful of their power they have now, but it struck me that contradicted to some degree your emphasis on democracy because indirectly, we get the vote of them through voting for the presidency and perhaps Congress. Aren’t they the antithesis of small d democracy, as you see it? They are unelected, operate somewhat in the shadows, but have profound power. We only have a minute or so left, Carolyn, so if you want to comment on what you have done, if anything vis a vis the administrative state, we have about a minute.
Caroline Fredrickson 49:55
We just make it clear that Congress can actually establish agencies the difference court has been poking around at this, suggesting that Congress can’t set up an agency and then allow it to do rulemaking to roll that back would be devastating for this country, the idea that what Congress has got to do what the CDC does and do an analysis of exactly what kind of rules might be required. Democracy is that we elect. If Congress thinks that an agency is doing something wrong, it can change the law. Unless we’re gonna have a direct democracy and have everybody vote on every single law, we have to have a structure in which these are mediated and in our original Constitution, sets up a system of representational democracy that this agency structure is simply a derivation of. The leaders of these agencies are confirmed by the Senate. The rules that they pass can be repealed. There is, I think, democracy functions.
Bob Zadek 51:12
This is Bob Zadek, spending a wonderful hour with Caroline Fredrickson. Caroline teaches constitutional law at Georgetown. She was appointed by the National Constitution Center to draft, which she succeeded in doing, a progressive version of our Constitution. Reading the progressive version, the conservative version, and the libertarian version will tell you all you know about what country you want to live in. You get to pick your country, more or less. Caroline, I am so envious of that appointment. What a wonderful time you must have had. The work product is wonderful reading even for the casual student of the constitution. Thank you so much, Caroline, for all of your work, your team members work and for your work for President Biden on reviewing the Supreme Court. Bob Zadek saying long for now. I’ll be back again next Sunday with another hour of libertarian thought. Always, ideas never once attitude. Thank you so much for listening. Enjoy my podcast if that’s what you do, and rate me if you are so inclined. Thank you so much. Please have a lovely Sunday.
- Timothy Sandefur on The Libertarian Constitution, November 3, 2021
- Philip Hamburger on Court Packing, June 19, 2021
- Reviewing Judicial Review with Keith Whittington, February 21, 2020
- Does the Constitution Still Matter? Evan Bernick from the IJ, October 31, 2015
- Overruling Government Overreach: Damon Root on the Libertarian Legal Movement, November 28, 2014