What does "Separation of Church and State" mean?

[Angrboda]

The National Constitution Center recently conducted a fascinating exercise in which it brought together three groups to produce their own revised versions of the Constitution: a conservative team, a libertarian team, and a progressive one. Each team included prominent scholars and legal commentators affiliated with their respective camps. The results revealed substantially more convergence on key issues than might have been expected in our highly polarized times.

There are important and often unsurprising differences between the three groups. But there are also several notable points of agreement that could potentially serve as the basis for a program of constitutional reform that might have a real chance of being enacted.

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Each team produced a rewritten version of the Constitution, and an introduction explaining the changes they made from the status quo. The Progressive Constitution and Introduction are available here, the conservative versions are here, and the libertarian ones here.

NCC President Jeffrey Rosen summarized some of the key similarities between the three drafts in an Atlantic article on the project. As he recognized, agreement on preserving the basic framework of the 1787 Constitution, with its federalism and separation of powers, is significant. Critics of the Constitution have long argued that the US would be better off with a parliamentary system, a unitary state, or some combination of both. It is notable that all three groups rejected such ideas. Another noteworthy point of convergence in favor of the status quo is that none of the three teams would introduce any significant new “positive” rights to various kinds of government benefits, of the sort common in many European constitutions. Interestingly, the progressive drafters deliberately chose not to follow the example of left-liberal constitutional drafters in many other countries on this point (a decision I commend, though some of their ideological allies might not agree).

Even more notable is agreement on several key reforms, most notably the need to limit presidential power. Recent history, including dubious power grabs by presidents of both parties, have persuaded most constitutional experts across the political spectrum that the current system concentrates too much power in the hands of a single person.

All three proposals would allow Congress impeach and remove the president for abuses of power that fall short of being federal crimes, thereby resolving a longstanding ambiguity in the current Constitution. The progressive and conservative constitutions make it easier to convict presidents, by reducing the supermajority needed to convict in the Senate from two-thirds (67 of 100 votes) to three-fifths (60); though both also impose a similar requirement for impeachment in the House.

All three drafts also strengthen congressional oversight of the executive branch and reduce presidential control over federal spending and regulation. The three teams pursue these goals by different means. The conservatives propose a variety of measures for directly strengthening congressional oversight of spending and tying it more closely to taxation. The libertarians would impose tight limits on the purposes for which funds can be spent, allow “taxpayer standing” for lawsuits challenging misuses of public funds. Both conservatives and libertarians include provisions imposing tight constraints on presidential power to make law by executive order. For their part, the progressive team explicitly allows Congress to set up independent agencies (an idea directly at odds with parts of the conservative draft), and enhances Congress’ power to demand information and testimony from the executive for oversight purposes. Both the conservative and progressive drafts give Congress a “legislative veto” over various executive branch policies, thereby enabling them to pass legislation rescinding such actions without facing the prospect of a veto from the president. The conservatives would limit the president to a single six-year term, forbidding reelection.

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