ZadekpediaTimothy Sandefur is Vice President for Litigation at the Goldwater Institute, where he litigates on property rights and individual freedom issues. He is 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 his work on the Libertarian Constitution Project. Timothy Sandefur on The Libertarian Constitution (2021)
On the show
1 appearance, 2021.
- 2021-11-08 · Timothy Sandefur on The Libertarian Constitution · 52:33 — The Libertarian Constitution Project.
The Libertarian Constitution Project
The National Constitution Center, which Bob Zadek described as the only organization chartered by Congress to further understanding of the Constitution, commissioned three teams of scholars—libertarian, progressive, and conservative—to write or rewrite the Constitution in a way more consistent with their respective values. Sandefur was a member of the libertarian team. He said of the team’s approach, “we rescued the Constitution.” Timothy Sandefur on The Libertarian Constitution (2021)
Sandefur said the team’s initial impulse was to hand back the existing Constitution and say it was already libertarian, but that a number of things needed remedy. The team took the existing Constitution and incorporated existing amendments, leaving out the income tax. The Thirteenth Amendment, which prohibits slavery, was written into the body of the document rather than left at the end with the other amendments. Timothy Sandefur on The Libertarian Constitution (2021)
On intellectual property, Sandefur said many libertarians, including himself, have real problems with the idea of intellectual property at all. The team wrote that copyrights and patents would last only 28 years—the period patents lasted at the time of the Founding Fathers. The libertarian critique, he explained, is that intellectual property is not really property but a government-created monopoly that makes it illegal to imitate or copy another person, and thus an initiation of force. He cited as a heinous example of abuse the 1980s Men at Work song “Down Under,” which was found to violate copyright because it uses a few notes from “Kookaburra Sits in the Old Gum Tree” in the background. Timothy Sandefur on The Libertarian Constitution (2021)
Eliminating the Income Tax
The team prohibited income taxes expressly while allowing Congress to “lay and collect taxes, duties, imposts, and excises.” Sandefur said taxes would be limited to paying debts and providing for the common defense and general welfare, with general welfare not construed to refer to the specific welfare of any particular group or individual, and imposts and excises uniform throughout the United States. Sales taxes and taxes on imports would be constitutional. Timothy Sandefur on The Libertarian Constitution (2021)
Asked by Zadek about a Value Added Tax, Sandefur acknowledged that the team had constitutionally endorsed it. He then said the team probably should have also included a constitutional prohibition on withholding, because it obscures people’s tax burdens; he said that when people get a tax refund they think they are getting a special gift, when they are only getting change back from money the government took. Zadek observed that Sandefur had just discovered the need for a first amendment to the new Constitution before its adoption. Timothy Sandefur on The Libertarian Constitution (2021)
Impeachment
Sandefur said the team thought the original Constitution’s impeachment provisions were fine but needed clarification because of misconceptions. The team’s view was that there should be a great deal more impeachment than has ever occurred in American history, not just of presidents but of judges and others. They amended the language so that officers are removed for treason, bribery, or other high crimes and misdemeanors, and added “or other behavior that renders them unfit for office.” Sandefur said it would be legitimate to impeach a president simply because his behavior renders him unfit. 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 thus escape impeachment for lack of a crime—which he called ludicrous. Asked whether pre-election behavior would qualify, Sandefur said it would. Timothy Sandefur on The Libertarian Constitution (2021)
Courts, War Powers, and the Administrative State
On the complaint that the Supreme Court behaves as a super-legislature, Sandefur said the team thought that complaint tends to be exaggerated. They were content leaving the Court’s structure intact, on the view that the problems arise more often because courts fail to enforce the Constitution than because they exceed their authority. Given a choice, he said, the team would prefer a Court that strikes down too many laws as unconstitutional over one that strikes down too few and lets Congress and the president ride roughshod over liberty. Timothy Sandefur on The Libertarian Constitution (2021)
On executive power, Sandefur placed the blame primarily on Congress rather than the president for allowing the president a blank check—to seize property and declare it a national park by signature, or to dispatch the military without meaningful congressional oversight. The team included a provision drawn from the Ludlow Amendment, a 1930s proposal, using the phrase “Only where the territory of the United States is actually invaded” to describe when the president may use the military. Sandefur said Franklin Roosevelt strongly opposed the proposal, arguing it would make international negotiations and diplomacy difficult, and that the idea of a national plebiscite on going to war ended up failing. Timothy Sandefur on The Libertarian Constitution (2021)
On the administrative state, Sandefur said the team was troubled 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 rather than elected representatives. But he also said agencies are basically an inevitable part of government. The team’s position was that as long as constitutional protections for individual rights are faithfully followed, they could live with administrative agencies. He acknowledged that libertarian listeners might roll their eyes at that conditional, and said the biggest problem today 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
Only one episode of the show in these episodes features Timothy Sandefur, so the episodes show no development in his positions across appearances.