Timothy Sandefur on The Libertarian Constitution
Here’s a thought experiment: If the Constitution were re-written according to modern libertarian standards, how would it be different? The idea of a “libertarian Constitution” may seem redundant — the Founders were forerunners of the classical liberals, who in turn paved the way for the libertarian movement.
The National Constitution Center, however, recently posed this challenge to a group of libertarian legal scholars, along with two other groups of scholars: one progressive, and one conservative.
Timothy Sandefur, along with his Cato colleague Ilya Shapiro and Brooklyn Law School professor Christina Mulligan, drafted their version of the Constitution to include additional protections of individual liberties (unsurprisingly). In hindsight, we can see that the founders were insufficiently wary of executive authority — except for perhaps George Mason. They left the door open for the erosion of the separation of powers, especially by the administrative state — something corrected in the proposed Libertarian Constitution. Furthermore, Sandefur et al.’s “Ellis Island Clause” would restore immigration to early 20th-century policies, and limit arbitrary federal restrictions on who can move to the United States.
I spent the hour with Sandefur — the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation — expanding my sense of possibility, and exploring what we can learn from various state constitutions in working towards a more perfect union.
Be sure to follow Timothy on Twitter: @TimothySandefur and subscribe to the Goldwater Institute’s newsletter.
Bob Zadek 00:13
Jeffrey Rosen, the President of the National Constitution Center, has recently explained how his organization is the only one of its kind that is specifically chartered by Congress to further the understanding and appreciation of the Constitution. The National Constitution Center, located in Philadelphia, has a wonderful nonpartisan exhibition. It commissioned three teams of scholars — a libertarian team, a progressive team, and a conservative team– and assigned each of them the task of writing or rewriting our Constitution in a way that was consistent with their respective values. The teams did their work. They delivered three different constitutions, and each of the constitutions in some respects differed quite dramatically with the others.
In many ways, the three teams reached very similar conclusions. It was surprising to me when I read it. I thought it would be the most delicious intellectual examination to have on the show this morning. One of the team members from the libertarian team explained to us what changes to the Constitution were made, and what errors there were in the original Constitution, if any.
I think you will find the discussion to be quite provocative and I invite you to think about some of the founding principles in 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, graduate of Hillsdale College and of the Chapman School of Law. 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, and undoing the mistakes of the original Constitution. He’s here this morning to share with us what they found right, what they found wrong, and what had to be corrected with the original Constitution. Welcome back to the show this morning. Thank you so much for joining us.
A Political Thought Experiment: Re-Writing the Constitution
Timothy Sandefur 04:58
Thanks for having me back. I would say that we rescued the Constitution.
Bob Zadek 05:04
The rescue is welcome. It is a very useful document. It has served us well for 230 plus years, and every instrument needs a little fixing up now and again. Thank you so much. Now, Tim, in the project itself, I teed up a question which I didn’t feel comfortable even beginning to answer, but I’ll ask you to answer. In revising, correcting, and fixing the Constitution, did you find yourself correcting mistakes that the founders made? If the Founders made mistakes, was it really a mistake or was it just the times were changing and the Constitution had trouble keeping up with changing circumstances? Were you true to it or did you adjust the principles the Founders had when writing the original Constitution?
“I would say that we rescued the Constitution.””
Timothy Sandefur 06:38
Yeah, we did do a little bit of all of those things. I think our initial impulse was to provide a turnaround and hand them back the existing US Constitution and say, “This is libertarian, we don’t need to change it.”
The fact is that there are a number of different things that need to be remedied. There are amendments already to the Constitution that in many ways make it more libertarian, and in some ways less libertarian. We took the existing Constitution and incorporated the existing amendments, while leaving out things like the income tax, which libertarians strongly oppose. For instance, we kept in the 13th amendment that prohibits slavery, but we took that and wrote it into the body of our Constitution instead of having it at the end. After we first loaded in the existing amendments, we started on what we would tinker with.
In some of those cases, it was stuff that we thought maybe the founders didn’t quite get wrong… 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. We think that is a real problem. We wrote into our Constitution that we can still have copyrights and patents, but they only last for 28 years. We thought that was a reasonable period. That was a period of time that patents lasted at the time of the founding fathers. We thought we’d just include that, and that way Congress can’t just keep renewing copyrights every time Mickey Mouse comes up.
Bob Zadek 08:23
What was your problem with rewarding and encouraging unique, original intellectual activity and protecting it? Once an individual creates something new, what is 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. I’m really asking that as a surrogate for the bigger question.
Timothy Sandefur 09:11
Sure. A general libertarian critique of intellectual property, per se, is that if a person has it, it is not really property. It is a government-created monopoly that makes it illegal for you to imitate or copy some other person. That means that it is an initiation of force against somebody who has not initiated the use of force against you, which violates a fundamental principle of libertarian political theory. On the other hand, like you said, copyright has a patent. They have an advantage in that they reward and incentivize creation. 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 just indefinitely prohibit anybody from profits.
Probably the most heinous example of abuse that I know of is that 1980’s 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. So therefore, the band was required to pay out a whole bunch of money to the people who own the rights to Kookaburra. That’s ridiculous, right? That is really an injustice. You don’t want to have that kind of thing. Our compromise position was to allow for limited times for copyrights and patents as a brief way of subsidizing invention.
Rescuing the Constitution from the Commerce Clause
Bob Zadek 10:43
Is it fair to say that a lot of the work you did, and the work you felt you had to do, was to say “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 11:34
Yeah, that’s a very good way of putting exactly what we did. We came up with a long list of Supreme Court decisions that got things wrong. 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, has been expanded to allow Congress, essentially giving a blank check of power to Congress to do whatever it feels like.
So, we revised the language. In our version, it says, “to regulate commerce provided that this shall not authorize regulation of the 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. We tried to recognize that the world is different today than it was 200 years ago. 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 12:43
Just one very minor comment. You said the meaning of the commerce clause had been expanded. Politicians often say, “mistakes were made.” You said the Commerce Clause was expanded. No, it wasn’t expanded. That almost sounds like it is something that happened physically. The Supreme Court, over time, assigned a meaning to a clause that never had the meaning the Supreme Court intended. Let’s just put the blame where it belongs. The Congress clause was not expanded metaphysically. It was done by the Supreme Court.
“The blame rests squarely on the shoulders of Franklin Delano Roosevelt and the Supreme Court.”
Timothy Sandefur 13:39
The blame rests squarely on the shoulders of Franklin Delano Roosevelt and the Supreme Court. That is totally up to him, beginning primarily with the National Labor Relations Board v. Jones & Laughlin Steel Corporation, which was a Supreme Court decision that upheld the National Labor Relations Act on the theory that without the Act, there would be a real problem with the labor market 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 it was used as a blank check for Congress to regulate practically anything that has any economic effect on the nation or in which its absence would also affect it, which is everything, right? So, we tried to revise our constitution to put some sense back into the Constitution limits on federal power under the Commerce Clause.
Bob Zadek 14:35
If there’s one topic that I spend perhaps more airtime on than any other it is the erosion of federalism — the power being seized from the states and from localities and given to Washington. I assign a lot of the national ills to that. In that circumstance, you have made enormous changes in the relationship between the state power and federal power. I think it’s quite fair to say that the changes are getting us back to the original starting point. Speak to some of the important adjustments you have made, because there seemed to be a large plurality of the changes related to that. Walk us through some of the more important adjustments you made to give us back original federalism.
Timothy Sandefur 15:51
The Founding Fathers contemplated a small federal government, and that left most of the power to regulate matters of our daily lives at the state level. 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 create bureaucracies that take power through the commerce clause.
This the biggest one, but another important part of that is there’s one aspect of federalism that the Founding Fathers did not address completely. It was too little protection for individual rights against the state government. That’s been remedied by the 14th Amendment in large part, but we have tried to constitutionalize that. For example, we have a whole section in our constitution that says that “No State shall…” and then goes on to prohibit States from doing various things that in many ways they currently do. It also prohibits the federal government from doing certain things. A good example here is that neither the federal government nor any state or tribal government shall ever give or loan its credit in the aid of, or make any donation for, or grants to, any corporation.
“[W]e have a whole section in our constitution that says that “No State shall…” and then goes on to prohibit States from doing various things that in many ways they currently do.”
Now, we borrowed that language from the Arizona Constitution and several other state constitutions. That’s called a “gift clause,” and it prohibits the government from subsidizing private businesses with taxpayer dollars. Sadly, most states ignore that. We choose to incorporate that into the federal government to prohibit Congress from subsidizing private businesses.
Another one that we included was that neither Congress nor any state shall enact any local or special laws when a general law may be made applicable. That is borrowed from the state constitutions as well. The idea is that state legislatures sometimes write their laws to say, “the business located on 12th and Main shall be allowed to do such or shall be given such special privileges,” or they design their laws so that they look like they apply to everybody.
Instead, we want laws to be general and apply to large classes of people. You can’t just write laws that apply to particular individuals.
Bob Zadek 18:32
Every single syllable of the income tax law violates that principle.
Timothy Sandefur 18:44
Yes, that is true. It would also violate a lot of other protections that we have in our draft of the Constitution. For example, we protect privacy rights expressly in our Constitution. We use language borrowed from the Washington and Arizona State Constitution. 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 is only a phrase that 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. One of the big concerns was that 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, how they spent their money and everything. It was an intolerable intrusion on individual privacy. We use the language of that private affairs clause, which would prohibit the income tax if it were in existence.
A World without Income Taxes
Bob Zadek 19:59
Now that’s a good segue into eliminating the income tax. You have done away with the two back to back amendments that destroyed the core structure of federalism that the founders gave us — the 16th and the 17th amendments — both passed in 1913. Those were dark days, right in the height of the Progressive Era. The 16th amendment was the income tax, and the 17th amendment was the direct election of senators. It’s not a tax, per se, that we object to. You and I both desperately want a government in some form. We require it. How, on a constitutional level, do you replace the money that the government will now lose when the income tax under a libertarian constitution is unconstitutional?
Timothy Sandefur 21:51
If our Constitution were adopted, Congress would have less need for money. Therefore, there is no need to replace the current flood of our earnings that the government sucks away every year. We do recognize the existence of taxes. This is another place where a dyed in the wool libertarian would have a problem. 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 cannot lay income taxes. We have an express prohibition on that. We allow Congress to impose and collect taxes but prohibit the government from spending it in particular ways. The taxes are limited to paying the debts, providing for common defense and general welfare. General Welfare shall not be construed to refer to the specific welfare of any particular group or individual. Taxes are to be uniform throughout the United States. You can’t tax in one state differently from another, which is also in the current constitution.
“General welfare shall not be construed to refer to the specific welfare of any particular group or individual.”
Bob Zadek 23:15
Would you favor a VAT (value added tax), which is baked into the cost of the good, as being constitutionally acceptable? Many people who worry about tax policy are unhappy with VAT because it’s a tax which is hidden. It is just things that cost more. Therefore, the legislature can somewhat painlessly increase tax rates, and nobody would really know directly the things that just vaguely cost 4% more or 6% more. It allows taxation to be snuck in without people being aware of it. So I noticed that you constitutionally endorse the VAT, even though it has some political unpleasantness attached to it.
Timothy Sandefur 25:11
Now that you mentioned it, Bob, we probably should have also included a constitutional prohibition on withholding.
Bob Zadek 25:17
Actually withholding is commandeering, isn’t it?
Timothy Sandefur 25:22
Yes. Because it does the same thing. People don’t realize their tax burdens because when they get their tax refund, they think that they are getting some special gift, and all they’re getting back is change from the money that the government stole from them to begin with. 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 25:49
Tim, you now need the First Amendment to your new constitution. It is not even adopted yet. Already, we are doing amendments, but they are sending it out to the states. See how easy it is to mess up with you when you’re writing a constitution? There is so much stuff you say, “Oh, my God, we need to do it over.”
Timothy Sandefur 26:09
It is true. Going over this project, there were a number of places where we had to stop. We said, “Gosh, and in section one, we said this other thing. Now we’re thinking about a different thing. We have to figure out a way to make it uniform in what we were writing.” It was a very interesting and challenging intellectual exercise.
On the Subject of Impeachment
Bob Zadek 26:28
Now a topic that’s just too juicy not to discuss is the subject of impeachment. By the way, as just an aside, I’ve been really enjoying watching the effects of the Clinton impeachment. If you’re a political junkie, it’s cool to watch. That’s very much on my mind. On the subject of impeachment, there is a lot of confusion about the grounds under which the President or any holder of federal office can be removed, which violates or undoes the electoral process. Tell us what you found, as a libertarian, wrong with the existing Constitution, insofar as the issue of impeachment is concerned.
Timothy Sandefur 27:31
Another area where we thought the Constitution as it was written originally was perfectly fine, but 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 of Presidents, but judges and others as well. The issue of whether a President could be impeached for something other than a crime or simply for being an unfit president, is perfectly legitimate and actually should be done more often. If a President’s behavior renders him unfit for office he should be removed.
“Our view is that there should be a heck of a lot more impeachment than we have ever had in American history — not just of Presidents, but judges and others as well.”
So, we amended our constitution to use of the original language which says, “The President, Vice President, and all civil officers shall be removed from office on impeachment for any conviction of treason, bribery, other high crimes and misdemeanors,” and then we added, “or other behavior that renders them unfit for office,” because there is no reason why Presidents should not have to 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 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 has not committed any kind of crime. That is ludicrous. You should be able to impeach a President who does something like that. So we added, any behavior that renders the president unfit for office is properly subject to impeachment.
Bob Zadek 29:11
What about pre-election behavior?
Timothy Sandefur 29:19
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 29:28
In other words, the President can take the oath and then impeachment proceedings start. On the way off the platform in front of the Capitol, he is served with impeachment papers.
Timothy Sandefur 29:40
I think it would be a healthier nation if we did that.
Addressing the Judicial System
Bob Zadek 29:44
There’s been a lot of talk when Biden was campaigning and shortly after he got elected, when he quite famously organized a commission to look into the organization of both the Supreme Court in order to have more subordinate federal judges. There was a discussion on court packing and there were a lot of complaints going back to Merrick Garland. During the whole process of selecting Supreme Court judges, there were a lot of complaints about the political position of the Supreme Court. There were subordinate judges as well. You looked into a lot of the organization of the federal judiciary. What changes did you feel were appropriate and why?
Timothy Sandefur 30:44
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. This is another thing I mentioned before. We made sure to keep an eye on tribal governments and how they operate, and included a bill of rights protections against how tribal governments operate. We also allow the federal courts to decide cases that might arise between tribal governments and people who live on reservation.
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. We fix that, but those are relatively minor.
We actually made relatively few changes to the way that the court system operates in its structure. Now, as far as legal protections are concerned, we made sure to constitutionalize individual rights that have been misunderstood or misinterpreted by the courts over the years. We made sure to protect the privileges or immunities of citizens, for example, which is something that the Supreme Court has turned its back on, and we protect the rights of the fruits of your labor and things like this, which the courts have failed to protect. As far as the judicial structure was concerned, we were more or less happy with that.
“We actually made relatively few changes to the way that the court system operates in its structure.”
Term Limits and the Supreme Court as a Super-Legislature
Bob Zadek 32:16
What about term limits? Federal judges serve for life, assuming they have good behavior, a very general term. There has been a lot of examination on whether that ever made sense. What is your view?
Timothy Sandefur 33:17
The rationale behind term limits 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. We wanted to protect judicial independence within boundaries, making sure that we’re not turning them into — which is exactly what the Founding Fathers had in mind. We decided that we were comfortable with the way the Founding Fathers had done it. So we left life tenure in place. I think you certainly can. I’m open to the argument that you should have something like a 30-year term or a 25-year term limit or something like that. We don’t have any principled opposition to such a thing. We just saw no reason to fiddle with it in our Constitution. If somebody wanted to amend that and change it. I certainly would be open to the argument.
Bob Zadek 34:06
I think one of your colleagues, Ilya Shapiro, was mildly welcoming the discussion, but didn’t feel strongly about it.
Timothy Sandefur 34:25
Why are we much more concerned with the power of Congress and the President than the courts? Congress violates our rights every single day of our lives. The courts do bad things, sometimes very bad things, but for the most part, the courts really are much safer.
Bob Zadek 34:45
Those who study what goes on in Washington, whether progressive, conservative, or libertarian, invariably will think 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 what I’ll call the balance of power among judicial executive and legislative branches in your Constitution? Or did you find that you discuss at least or maybe leave alone, but discuss whether or not the Supreme Court has more power than it should have or then was originally intended? How did you deal with the complaint if you fail to grill that often the Supreme Court behaves as a super legislature?
Timothy Sandefur 36:01
We think that that tends to be exaggerated. We also thought that as long as we impose the limits on Congress that we added to our Constitution, and are 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 problem that we run into, tend to happen because the courts fail to enforce the Constitution less than the court going beyond its authority.
It’s a choice between the Supreme Court that strikes down too many laws as unconstitutional. The 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 liberties. 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.
The Administrative State: A Congressional Problem
Bob Zadek 37:02
Another big topic that gets a lot of media attention from many people, who have strong opinions on it, is whether the executive branch, the presidency and the administrative state have for one reason or another exercised far more power than was originally intended. 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 37:56
It is true but 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 a blank check of authority to just seize property and declare a national park with just the signature on a piece of paper, or to dispatch the military without meaningful congressional oversight and that thing.
On the military front, we included a provision that came out of a proposal in the 1930s, called the “Ludlow amendment.” This was an idea that would have prohibited the President from sending troops into a military confrontation unless the United States itself was actually invaded.
Only where the territory the United States is actually invaded, can the president use the military in this way. Now, the Ludlow amendment was a proposal before World War Two, out of fear that the United States would get involved in another world war. The idea was that you can only use the military if we were actually attacked. Franklin Roosevelt was very strongly opposed to this.
He said that will make it difficult for him to engage in international negotiations and diplomacy. The idea was 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 nowadays.
Bob Zadek 40:00
You specifically limited the president’s power to use force without congressional approval or endorsement. There have been lots and lots and lots of complaints, justifiably, 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? What have you done to adjust it?
Timothy Sandefur 40:57
It does trouble us. The big problem is that these agencies write rules and put them into effect without real congressional or presidential oversight. You have basically the laws that we live on 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 agencies of some kind or other existing. 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 the fruits of your labor and those sorts of things. As long as those things were faithfully followed, we would be able to live with the existence of these administrative agencies. Now, I know a lot of the libertarian listeners who might roll their eyes at the idea of as long as these constitutional protections are enforced.
The Constitution is a promise and it will only survive or and only succeed if the people are faithful to the promises that are included in its pages. 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. It is a pledge of faith to say, we will allow the 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 One’s Labor
Bob Zadek 42:39
Earlier, we discussed income tax. I’m going to start with the phrase, “the fruits of one’s labor,” which is a phrase that preceded the founding of our country, it exists in writing. During the Enlightenment era, the concept is that people have a natural right to 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. I smiled when I learned that you have virtually constant embodied in the Constitution, the principle of retaining the fruits of one labors and you mentioned earlier and last year to just help us understand a little bit more, because it’s just, it gave me great pleasure to read it, how you borrowed from, I think, the Missouri Constitution.
Tell us about what you have done specifically on that issue? More generally, what have you done to solidify and reestablish one of our core doctrines of property rights?
Timothy Sandefur 44:15
There are two main concerns about individual rights, so we had to categorize them. The current constitutional regime in the United States is inadequate in its protection for private property rights and economic freedom generally. It’s inadequate in its protection of privacy rights. So, we keep in place the existing protections for free exercise of religion, the freedom of speech, and so forth. We also clarified what these rights mean in some cases where that has been doubted, and we preserved rights explicitly that we think are currently implicitly protected by the Constitution. Because they are implicit, that puts them at risk.
We borrowed from the Missouri Constitution of protection for the fruits of your labor. We said, “no government shall prohibit the free exercise of religion or abridge freedom of speech or conscience, or infringe on the rights of the fruits of one’s labors or the right to live a peaceful life of one’s choosing.” 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. That should be protected. You should have the right to keep the benefits of that transaction — a peaceful life of one’s choosing. I mean, we can’t specify every individual right in the Bill of Rights, because that would be an infinitely long list. You have the right to wear a hat on Wednesday, so you also have the right to wear a hat on Tuesday, and so forth. 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. 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 Right to Earn a Living
Bob Zadek 46:22
That provision is a frontal attack on occupational licensing — the governmental requirement that you have to get a license to practice law or medicine or the like. It almost attacks all licensing. Everything we’ve talked about applies equally to the states. 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. 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 47:57
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 is legitimate. What licensing says is you may not do this thing unless you get government permission. There are some rare circumstances where that does seem to be the appropriate thing to do. You don’t want to have somebody be like somebody building a nuclear reactor without having a primer beforehand, learned how to do that and gotten a degree in nuclear physics, for example.
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.
So our provision says the government cannot deprive you of the fruits of your labor or the right to the fruits of your labors. The idea behind that is to say, if a licensing requirement is so burdensome or unjustifiable in terms of public safety that it is depriving you of the ability to earn a living without good reason, that would be unconstitutional.
For example, if a state mandate made it illegal for people to live together without a marriage license, for example, which no state has done, that would be infringing on your right to live a peaceful life of your choosing. Incidentally, that overlaps with our other provision about private affairs, but 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. That is, relatively speaking, a rare circumstance. Much more often, licensing requirements, whether it be business licensing, or whether it be marriage licensing, tend to be abused in order to deprive people unfairly of their freedom. When it comes to marriage licenses 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 it unconstitutional in 1960.
The Presumption of Liberty
Bob Zadek 50:11
Tim, we have only about 30 seconds left. Help us understand if you can in 30 seconds what does the presumption of liberty mean in your constitution.
Timothy Sandefur 50:52
We do have a constitutional presumption where we say that all persons are presumptively at liberty to enjoy and use the life liberty or property in their best judgment. Whenever the federal, state or tribal government infringe on this right, Courts shall determine whether the government has constitutional authority for its action and the genuine justification for its restriction.
The idea being that people are born free and the 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, which says that you are not free unless you can persuade the public to give you freedom through a democratic vote. We think that is unjust. We believe all people are born free, and the government should only restrict your freedom if it has good reasons. That’s really the basic fundamental difference between us and the other teams that engaged in this experiment.
- 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