Constitution Project

The Constitution Project is an non-profit think tank in the United States that builds bipartisan consensus on significant constitutional and legal questions. Founded and led by Virginia Sloan, the Constitution Project’s work is divided between two programs: the Rule of Law Program and the Criminal Justice Program. Each program houses bipartisan committees focused on specific constitutional issues.^[1]

Rule of Law Program

The Rule of Law Program addresses perceived threats to the rule of law and to constitutional liberties that have resulted from the assertions of expansive presidential authority in the aftermath of the attacks of September 11, 2001, Congress’s simultaneous failure to exercise its duties as a separate and independent branch of government, and efforts by both Congress and the President to strip the courts of their jurisdiction to oversee the actions of the executive and legislative branches.

Liberty and Security Committee

The Liberty and Security Committee of the Rule of Law Program is co-chaired by David D. Cole, professor of law at Georgetown University Law Center, and David Keene, chairman of the American Conservative Union.^[2] The Committee is convened to address the “variety of important questions about how to enhance our security while simultaneously protecting our civil liberties.”^[3] Members of the Committee have also authored columns for major newspapers on watch lists, the state secrets privilege, habeas corpus, and public video surveillance.

Reports and Statements

Recommendations for the Use of Military Commissions 

The central recommendation of the report is that “the jurisdiction of the military tribunals be limited to trials of combatants captured overseas on the battlefield in order to maintain the bright line between cases that can be heard by tribunals and those remaining in the civilian court system that is a hallmark of our democracy.”

The Creation of the United States Northern Command - An Interim Report 

The report “analyzes the President’s authority to create a broad domestic military authority and calls for a continued emphasis on legal limits as United States Northern Command’s mission is further defined.”

Report on First Amendment Issues 

The report “emphasizes the fundamental need for openness and accountability in government as a mean both to protect Americans' civil liberties and to better combat the threat posed by terrorism.”

Report on Post-9/11 Detentions 

The report “outlines basic principles regarding the legal basis for detentions and the legal rights of detainees and serves as an overview of the relevant issues and sets out the conclusions of the Initiative on those issues.”

Enemy Combatants - The Constitution and the Administration’s War on Terror 

The report “challenges the military seizures and incommunicado detentions executed in conjunction with the ‘enemy combatant’ designation as unconstitutional, and concludes by calling for both Congress and the Courts to exercise their constitutional obligation to check the executive branch, working towards a reversal of the current course in favor of one that recognizes the importance of constitutional and international legal norms.”

Call for a Commission to Investigate Prisoner Abuse 

The statement “seeks a bipartisan, independent commission, modeled after the 9/11 Commission, to investigate allegations of abuse in Iraq, Guantanamo, and elsewhere, and makes recommendations to guide U.S. officials in the future.”

Statement on the NSA Domestic Spying Program 

The statement “addresses the legal bounds overstepped by the President’s wiretapping program and emphasizes the need for checks and balances in our nation's government.”

Guidelines for Public Video Surveillance - A Guide to Protecting Communities and Preserving Civil Liberties and Model Video Surveillance Legislation 

The report “provides practical assistance to state and local governments that have established – or are seeking to install – video surveillance systems. It demonstrates how communities can set up systems that enhance security, while safeguarding residents’ civil liberties. The model legislation provides legislative language to enable state and local government officials to adopt these recommendations with ease.”

Statement to Restore Habeas Corpus Rights Eliminated Under the Military Commissions Act 

The statement “calls on Congress to restore habeas corpus rights eliminated with the enactment of the Military Commissions Act to non-citizens designated as ‘enemy combatants.’”

Promoting Accuracy and Fairness in the Use of Government Watch Lists 

The report “issues a strong bipartisan call for protecting individual rights when the government uses terrorist watch lists.”

Reforming the State Secrets Privilege 

The report “criticizes the Administration's disturbingly frequent invocation of the ‘state secrets privilege,’ while emphasizing the importance of independent judicial review as a check on executive power.” On July 15, 2007, The Washington Post urged Congress to consider implementing the recommendations in an editorial.

Statement on the National Security Agency’s Domestic Surveillance Program 

The statement asserts that the spying program “upends separate, balanced powers by thwarting the will of Congress and preventing any opportunity for judicial review.”

Statement on the Protect America Act of 2007 

The statement “advises Congress that many of the amendments to the Foreign Intelligence Surveillance Act contained in the Protect America Act are unnecessarily overbroad, undermine our constitutional system of checks and balances, and fail to sufficiently protect the privacy of the communications of Americans.”^[4]

Legal Briefs

Padilla v. Rumsfeld, US Court of Appeals for the Second Circuit 

The Constitution Project, with the Cato Institute, the Center for National Security Studies, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute, filed an amicus brief in support of José Padilla.

Padilla v. Rumsfeld, Supreme Court of the United States 

The Constitution Project, with the Cato Institute, the Center for National Security Studies, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute, filed an amicus brief in support of José Padilla.

Padilla v. Hanft, US Court of Appeals for the Fourth Circuit 

The Constitution Project, with the Center for National Security Studies, filed an amicus brief in support of José Padilla.

Hamdan v. Rumsfeld, Supreme Court of the United States 

The Constitution Project filed an amicus brief in support of Salim Ahmed Hamdan.

ACLU v. NSA, US Court of Appeals for the Sixth Circuit 

The Constitution Project, with the Center for National Security Studies, filed an amicus brief in support of the ACLU.

Rahmani v. United States, Supreme Court of the United States 

The Constitution Project filed an amicus brief urging the Court to grant certiorari to Roya Rahmani.

NIMJ v. Department of Defense, US Court of Appeals for the DC Circuit 

The Constitution Project filed an amicus brief in support of the National Institute for Military Justice.

El-Masri v. United States 

The Constitution Project filed an amicus brief urging the Court to grant certiorari to Khaled El-Masri.<ref">The Constitution Project – Liberty and Security Committee - News</ref>

Coalition to Defend Checks and Balances

The Coalition to Defend Checks and Balances is convened to address “the risk of permanent and unchecked presidential power, and the accompanying failure of Congress to exercise its responsibility as a separate and independent branch of government.^[5] In addition to publishing its own statements and reports, the Coalition also joins statements and reports issued by other committees.

Reports and Statements

Statement on Presidential Signing Statements 

The statement “condemns certain uses of presidential signing statements and calls for immediate action from both the Executive and Legislative branches of the federal government to respond to a ‘constitutional crisis’ that is endangering our system of checks and balances.”^[6]

Criminal Justice Program

The Criminal Justice Program seeks to counter a broad-based effort to deny fundamental day-in-court rights and due process protections to those accused of crimes.

Death Penalty Committee

The Death Penalty Committee of the Criminal Justice Program is co-chaired by Gerald Kogan, former Chief Justice of the Florida Supreme Court, and Beth Wilkinson, a prosecutor in the Oklahoma City bombing case.^[7] The Death Penalty Committee is a bipartisan committee of death penalty supporters and opponents who all agree that the risk of wrongful executions in this country has become too high. It was formerly known as the National Committee to Prevent Wrongful Executions.^[8]

Reports and Statements

Mandatory Justice – Eighteen Reforms to the Death Penalty 

The report “expresses the Committee’s deep concerns with regard to the implementation of the death penalty in the United States, and calls for crucial reforms, including in the areas of effective counsel, racial fairness, and proportionality.”

Mandatory Justice – The Death Penalty Revisited 

An update to the Committee’s first publication on the topic, the report notes “some improvements in recent years and identifies further steps that must still be taken in order to minimize mistakes and increase fairness and accuracy.”

Right to Counsel Committee

The Right to Counsel Committee is co-chaired by Walter Mondale (honorary), former Vice-President of the United States, William S. Sessions (honorary), a partner at Holland & Knight LLP, former Director of the FBI, and former Chief Judge of the United States District Court for the Western District of Texas, Rhoda Billings, former Chief Justice of the North Carolina Supreme Court, Robert Johnson, District Attorney for Anoka County, Minnesota, and former President of the National District Attorneys Association, and Timothy K. Lewis, counsel at Schnader Harrison Segal & Lewis LLP and former Judge of the U.S. Court of Appeals for the Third Circuit.^[9]

On November 7, 2007, the Constitution Project sponsored a conference on "Strickland v. Washington: How Effective is the Right the Effective Assistance of Counsel Standard?," featuring Justice Sandra Day O'Connor as the keynote speaker.^[10]

Guantanamo Task Force

In the fall of 2010, the Constitution Project initiated an eleven person Guantanamo Task Force.^[11][12]

Members

Inactive Committees

The following Committees have either concluded their work or are dormant.

Constitutional Amendments Committee

The Constitutional Amendments Committee was co-chaired by Mickey Edwards, a former Member of Congress (R-OK) and Director of the Rodel Fellowship in Public Leadership Program at the Aspen Institute, and Abner J. Mikva, former Member of Congress (D-IL) and Chief Judge, US Court of Appeals for the DC Circuit. The Committee was a bipartisan project that urged restraint in the constitutional amendment process. It was formerly known as Citizens for the Constitution, and the majority of its work preceded the formal organization of the Constitution Project.^[14]

Reports and Statements

Great and Extraordinary Occasions – Developing Guidelines for Constitutional Change 

The report “argues that the new abundance of proposed constitutional amendments stems from the misperception that the Constitution is an obstacle to the current public interest rather than a delicately crafted document based upon enduring principles that has served to balance and guide our nation since its creation.”

Courts Committee

The Courts Committee was co-chaired by Mickey Edwards, a former Member of Congress (R-OK) and Director of the Rodel Fellowship in Public Leadership Program at the Aspen Institute, and William S. Sessions, a partner at Holland & Knight LLP, former Director of the FBI, and former Chief Judge of the United States District Court for the Western District of Texas. The Committee conducted public education and advocacy on the importance of our courts as protectors of Americans’ essential constitutional freedoms, while working to ensure that our judicial system is accountable through appropriate and established means.^[15]

Reports and Statements

Uncertain Justice – Politics and America’s Courts 

The report argues that “increasing efforts to politicize the political selection process undermine the ability of the courts to protect the basic rights of individuals and decide cases freely and accurately.”

The Higher Ground – Standards of Conduct for Judicial Candidates 

The pamphlet stresses that “judges should be impartial, fair, and knowledgeable in order to fill their role as a cornerstone of democracy.”

Independent Courts Toolbox 

The publication was designed “for activist organizations and individuals working locally to defend the independence of the judiciary.”

Justice Held Hostage – Politics and Selecting Federal Judges 

The report “examines the increasing length of time taken to fill a federal bench since the Carter Administration, arguing that this delay threatens the framework of the judicial system as it slows the process of delivering justice in the United States.”

Ten Principles for Preserving Courts’ Role in American Democracy 

The statement “recommends that legislative and executive branch officials work to preserve courts’ ability to decide cases impartially and to ensure meaningful access to the courts for all individuals.”

Newsroom Guide to Judicial Independence 

The report “provides a variety of material designed to assist in thoughtful – and expedited – reporting: historical information on judicial independence, related court cases, quotes from lawmakers, a glossary of terms, a chart detailing judicial selection methods in each state and territory, and leads to organizations and people who are valuable resources for reporters.”

The Cost of Justice – Budgetary Threats to America’s Courts Today 

The report investigates “funding shortages have forced states to close courthouse doors, reduce the number of judges and court staff and decrease the number and quality of services for those with special needs, including foreign-language and sign-language interpreters, and calls on legislatures to take whatever steps are needed to ensure that courts have appropriate levels of funding so that they can fulfill their constitutional obligations and ensure that all individuals have meaningful access to justice.”^[16]

Legal Briefs

Spargo v. New York Commission on Judicial Conduct, US Court of Appeals for the Second Circuit

The Constitution Project filed amicus brief in support of the Commission.

Sentencing Committee

The Sentencing Committee was assembled to develop principles for establishing post-Booker sentencing systems that both protect public safety and respect the constitutional rights of defendants.^[17] The Committee is co-chaired by Philip Heymann (Deputy Attorney General during the Clinton administration and James Barr Ames Professor of Law at Harvard Law School) and Edwin Meese (United States Attorney General during Reagan administration and a distinguished fellow at the Heritage Foundation).

Reports and Statements

Principles for Design and Reform of Sentencing Systems 

The statement and background report “articulates the need for fairness and flexibility in a sentencing system.”

Recommendations for Federal Criminal Sentencing in a Post-Booker World 

The report addresses “the considerable constitutional uncertainty in the wake of the Blakely v. Washington and United States v. Booker Supreme Court decisions. Working from their conclusion that the Booker decision, while adding some measure of flexibility, fails to solve the considerable problems associated with sentencing guidelines.”^[18]

War Powers Committee

The War Powers Committee was co-chaired by Mickey Edwards, former Member of Congress (R-OK) and Director of the Rodel Fellowship in Public Leadership Program at the Aspen Institute, and David Skaggs, former Member of Congress (D-CO). The Committee was assembled to provide guidance on how the U.S. should constitutionally and prudently make the decision to introduce America's armed forces into hostilities.^[19]

Reports and Statements

Deciding to Use Force Abroad – War Powers in a System of Checks and Balances 

The report “is an emphatic call to Congress to rededicate itself to its primary constitutional role in deciding when to use force abroad.”

Award for Constitutional Commentary

Since 2007, the Constitution Project has recognized the author or producer of an outstanding work that has improved the quality of public discourse through insightful and articulate analysis of the constitutional implications of an major issue of the day.

Past winners of the Constitutional Commentary Award include:

2007

Boston Globe reporter Charlie Savage for his book, Takeover: The Return of the Imperial Presidency & the Subversion of American Democracy

2008

New York Times reporter Linda Greenhouse for her body of work covering the U.S. Supreme Court

Board of directors

The Constitution Project is governed by a board of directors. The Board is currently chaired by Stephen F. Hanlon, a partner and director of the Community Services Team at the law firm of Holland & Knight LLP.^[20] Other members of the Board include:

Mickey Edwards 

Former Member of Congress (R-OK) and Director of the Rodel Fellowship in Public Leadership Program at the Aspen Institute

Dr. Morton H. Halperin 

Director of US Advocacy at the Open Society Institute – DC

Paul Saunders 

Partner at the law firm of Cravath, Swaine & Moore LLP

Virginia Sloan 

President of the Constitution Project

References

See Also

• The Imperial Presidency
• United States Constitution
• United States constitutional law