January 18, 2018

A review

Mark Levin’s Liberty Amendments



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Joe Sobran used to say that "the U.S. Constitution poses no serious threat to our form of government." In his 2013 book The Liberty Amendments: Restoring the American Republic, Mark Levin is more or less setting out to do exactly that: make it a serious threat to our form of government.

This is a book that has not gotten very much attention from libertarian constitutionalists, who would naturally be a part of its intended audience.

Let's get the bad stuff out of the way first: Mark Levin is a modern conservative, a vocal supporter of U.S. wars abroad. He favors broad presidential war powers and what used to be called a "forward" foreign policy. In domestic policy, he supports the drug war and, to judge from remarks he made concerning Ron Paul during Dr. Paul's run for president in 2012, believes the Federal Reserve — though not all its activities — is constitutional. He is an admirer of Abraham Lincoln and made no secret of his support for Ted Cruz for president or his support for government control over immigration.

That said, it must be admitted that he is an ardent student of the U.S. Constitution, its history, its context, and its decline as a legal force in America. And indeed, if one were to read only the first few pages of Levin's book, he might well imagine that he was reading the words of someone who supported a candidate for president put forward by the Constitution Party.

Levin sees that, despite the intentions of the Framers and the safeguards they thought they had put in place in the Constitution, all three branches of government have been complicit in expanding the powers of the federal government to an extent not imagined by even the least liberty-oriented of the Framers. That being the case, he addresses the question of how it can be politically possible for the American people to recapture the liberty that the Constitution was supposed to have protected for them.

He insists, "The Constitution itself provides the means for restoring self-government and averting societal catastrophe ... in Article V." And those means, he is confident, circumvent all the corruption and statist mechanisms the existing federal institutions now possess for protecting their illegal seizures and exercises of power over the American people.

He begins by quoting the beginning of Article V:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by the conventions in three-fourths thereof....
Levin confesses that, like most of us, he at first understood this Article to allow for a constitutional convention in which the delegates could, in effect, rewrite the Constitution with consequences almost too dreadful to contemplate. Such a convention, he reckoned, would surely play into the hands of Progressives and other statists, and the result would not be a recovery of constitutional liberty, but a further undermining of it. What few constitutional restraints might be recognized by the courts, Congress, or the president would easily be struck from the Constitution to be replaced with a grant of virtually unlimited powers.

A closer reading of the Article, however, along with a study of James Madison's own Notes on the Constitutional Convention, persuaded Levin that this Article provides instead a method for the people, through their state governments, to begin to recover their liberties. And indeed, any reader of those notes or of The Federalist Papers should find it odd if the Framers of the Constitution had created a document that could be amended only by the very entity whose powers it was supposed to limit.

What Article V provides, therefore, is not that states can call a constitutional convention with unlimited powers to rewrite the Constitution. Rather, it provides that the states — even in their current attenuated condition — call for a convention to propose amendments. Under the terms of the Constitution, if certain conditions are met, to wit, that two-thirds of the States petition for the convention, then it is Congress's legal obligation to call for the convention.

At the convention, amendments may be proposed which may or may not be ratified by the states. If they are ratified, they become part of the Constitution. The procedure for their ratification is the same one that is followed when the amendments are proposed by Congress, as has been the case for all 27 Amendments.

In short, Levin's proposal that the states invoke this Article of the Constitution and propose amendments to it is an alternative to the usual political strategy of attempting to get "the right people" elected president or to Congress or appointed to the courts. Not that he completely rejects that more-conventional strategy; he merely recognizes that "even the most virtuous and resourceful among them ['the right people'] do not and cannot possess the aptitude and muscle to penetrate the daunting entrenchment and institutionalized apparatuses of the federal government." He even concedes, toward the end of the book, "The unambiguous evidence reveals that much of what the federal government does is unaffected by elections."

The success of his plan, of course, would depend on a number of factors that many readers (including this reviewer) will think formidable, if not impossible of realization. Chief among them is the likelihood that two-thirds of the state legislatures would ever petition for such a convention. They, after all, are composed, for the most part, of men with no greater devotion to liberty or the Constitution than those who occupy Congress now.

Perhaps next in line is the question of just who would attend the conventions at which the amendments would be proposed. Is not Levin hoping that the delegates will be "the right people"? Where will they be found?

And then there are the amendments themselves. What amendments would be proposed? His? Surely others — even others who were not Progressives or liberal statists — would have different agendas. And even supposing that a convention would be convoked, to be attended, let's say, by a significant percentage of "the right people," there is no guarantee that the "right" amendments would be proposed or that they would be ratified.

Levin is not daunted by these possibilities. He merely asserts that, after all, something must be done to stop the further encroachment on our liberties, and he is energetically proposing a method — a constitutional method — for accomplishing that goal.

All that said, then, let us look at the ten amendments he proposes for the convention, should it ever be held — amendments he calls the "liberty amendments."

His proposal for constitutional term limits to be set for members of both chambers of Congress has been discussed many times in forums friendly to libertarianism, chief among them, U.S. Term Limits. His most important observation in this connection is that in the U.S. Congress, time equals power.

There is also a proposal for limiting the terms of Supreme Court Justices. This proposal is combined with a provision for a congressional override, not subject to presidential veto, of majority opinions. He argues (with Thomas Jefferson) that the seminal opinion in Marbury v. Madison, in which it is stated that the judiciary have authority to judge the constitutionality of all legislation, makes the judiciary a "despotic branch" of government. (See, for example, Jefferson's letter to C. Hammon, August 8, 1821.)

Chapter three proposes that the Seventeenth Amendment be repealed and that the Senate be once again elected by the state legislatures. Readers of Isabel Paterson's God of the Machine may well welcome this repeal. I referred earlier to the states' "attenuated" condition, and their representation in the Senate by senators elected by popular vote was no small factor in bringing about that attenuation. Levin's amendment also provides for a recall election of U.S. senators by a two-thirds vote of the legislature.

The chapter includes a lengthy account of how the original plan for selecting the Senate was reached, supplying the arguments submitted for it and for plans that were later rejected. It makes for pleasurable reading for anyone interested in U.S. constitutional history.

Two proposals attempt to limit the power of the federal government to collect taxes and incur debt. Neither of them repeals the income tax, but there is a limit that Congress may not collect more than 15 percent of any person's income.

Perhaps the most interesting provision in these two proposals is that the date on which payment of taxes shall be due should be "the day before the date set for elections to federal office."

While Levin seems to have a fair grasp of the financial calamity facing Americans and their government (and he gives some useful history in its genesis), he does not mention the role played by U.S. foreign policy or by the existence of a national-security state in creating and nurturing that financial calamity.

Indeed, there is no amendment whatever for limiting the use of the U.S. military to the defense of the United States, and I am not sure that Levin understands the danger a strong military or war presents to the liberty of free men. This lacuna, of course, is the chief flaw in Levin's approach.

There is a proposal for limiting (or at least controlling) the federal bureaucracy, but it seems clear that no libertarian constitutionalist would be satisfied with it. Even within the limits Levin would establish, most would agree that the bureaucracy would be far too powerful, far too extensive, and that the role Levin suggests for controlling it could easily (and probably would eventually) be weakened, perhaps even to the point of becoming a rubber stamp.

At the very least, a libertarian would want to see the doctrine of non-delegation reinstated, so that the rulings of bureaucracies could not have the force of law and so that the bureaucracies would not be "courts" in which violators of their rules would be tried. Levin's proposed amendment does not address that matter.

His "amendment to promote free enterprise" is confined to explicitly defining Congress's power to regulate commerce generally, and interstate commerce particularly. Again, Levin gives an account of the co-opting of the constitutional provisions regarding trade, which account would probably be of more interest to a constitutionalist than is the proposed amendment itself.

The same may be said for his amendment dealing with eminent domain.

Among the more interesting amendments is Levin's proposal that the states be empowered to amend the Constitution directly. He sees this amendment as a kind of supplement to the Tenth Amendment, and for that reason there is a lengthy discussion of what he considers to be a misappropriation of that Amendment in support of slavery. He recognizes that present-day discussions about attempts to limit the federal government in favor of the states inevitably advert to slavery, and he is at pains to rebut those claims at the outset.

I believe Levin makes a crucial misstep here. If the Tenth Amendment did not permit slavery in the United States, what legal instrument did? Was it the Constitution itself? If so, then it would seem that the misappropriation of the Tenth Amendment were a small thing by comparison. There are those, however (Lysander Spooner chief among them in his Unconstitutionality of Slavery), who argue that no state constitution defined or legally established slavery and that the U.S. Constitution also did not. But if Spooner is correct that the Constitution "not only does not sanction slavery, but it does not even recognize its existence," then slavery existed in this country from its independence until the passage of the Thirteenth Amendment (or perhaps beyond — a historian of my acquaintance has found evidence for the survival of legal slavery in Massachusetts into the 1880s) — not by law, but by the sufferance, tolerance, and even protection of non-slaveholders; and what shall we say about that? What shall we say about a document that did not create slavery, that did not define who might be a slave, and whose every clause is said to have been written to defend liberty but that could be ignored merely for the convenience of rich men? That, in fact, the Constitution on this question was completely incompetent to meet corruption and defiance of its purpose and letter ab initio? If that should be the case, of what use is a constitution?

To state the matter briefly, either the Constitution supplied a legal basis for slavery or it did not. If it did, then how can the Tenth Amendment's use to defend it be judged a misappropriation? And if it did not, what confidence can any reasonable man put in a document that is so easily flouted in law and in practice?

To return to Levin's text, related to his proposed amendment on amending the Constitution is his proposal to provide the state legislatures with the authority to override federal legislation. It is not a grant of authority to nullify legislation, against which Levin has spoken vehemently, but it comes as close as I suppose we can expect a conventional conservative to permit.

His amendment "to protect the vote" is composed of sections addressing voter ID, early voting, registration, absentee voting, and electronic voting. He sees his proposals primarily as a means for reducing the possibility of voter fraud and for simplifying the electoral process.

All of Levin's amendments are open to criticism on the basis of libertarian principles. Some of them do not restore liberties that have already been lost, and instead merely attempt to limit the extent and damage such encroachments may introduce. Others libertarian constitutionalists would completely reject. Still, it must be conceded that Levin has undertaken to address certain weaknesses in the existing Constitution and to propose corrections to them.

His lawyer's training does not make his writing tedious by any means. He is a clear writer, with a certain facility for occasionally elegant expression; and he seems fairly adept at anticipating objections, both in the wording of the amendments themselves and in the arguments he advances in their behalf. The book lacks an index, a definite flaw in a book of this sort, but it is heavily annotated with supporting endnotes that do not interfere with the reading of the book proper.

One weakness in his plan, of course, is that for it to work, Congress must behave legally. That is, Article V provides that upon the application for an amendment-proposing convention, Congress shall — not "may" — call the convention. But we have seen Congress behave in such a manner that it is by no means clear that it would be diligent in adhering to this clause. And as I have just argued above, if the defense of slavery is a misappropriation of the Tenth Amendment, then we must allow that it is no struggle at all for the government simply to ignore the provisions of the Constitution.

The greatest weakness I find in Levin's project is, oddly enough, related to the feature of the book I find most interesting, namely, the history. Virtually all the proposed amendments are written with a view to correcting what Levin considers to be a misapplication of existing constitutional provisions. He is filling in gaps where he sees them, and making explicit matters that may have been foremost and clear enough to the Framers, which time and creative, even forensic, writing and interpretation have obscured or reversed.

While that is a worthy effort, it is subject to an unavoidable limitation. Just as the Framers could never have anticipated the misuse to which some of their writing was put in later decades and centuries, so Levin's amendments cannot protect themselves from similar determined efforts to mean what he never intended them to mean. There can be no doubt that no matter what government men may fashion, it will be subject to efforts by ambitious and despotic men to put it in the service of their own ends.

To be sure, Levin can hardly be accused of failing to foresee what no man can foresee. And the precise language of his amendments, if adopted, would certainly pose at least some challenge to dishonest wordsmiths of the future. But what does that limitation (and the existence of slavery in the United States, if Spooner is correct) say about the effectiveness of a constitution at all?

Can it be that constitutional libertarians must simply acknowledge that no constitution is as sure a guarantee of liberty as they perhaps would like it to be? Can we go further and ask whether it can be that no system of government can be as trustworthy as they might wish it to be?

The Ninth Amendment was no obstacle to the passing of conscription; the Second, no obstacle to the passing of anti-gun legislation; the First, no obstacle to the passing of hate-speech laws; and the Fourth, ultimately no protection from the NSA's curiosity about our email.

Because the drive from liberty to oppression normally occurs slowly, often there is no effective complaining. Most people do not even remember that they were once freer than they are today. Indeed, we were freer just 10 years ago than we are today, but most of us just don't notice the difference until someone like James Bovard comes along and points out the encroachments.

Moreover, as Joe Sobran once wrote, "We can't even imagine a government behaving honorably. The very concept of honor is equally unfamiliar to politicians and to government experts." And to be frank, honor among our governors, if it existed, might be a surer protection of our liberties than any set of amendments that could be subjected to the ingenuity of dishonorable men.

But that brings us back to the question of electing "the right people." All political action in a society with democratic (or even republican) aspirations is premised on the effectiveness of electing "the right people." Indeed, even Levin's amendments presuppose that "the right people" have been elected to the state legislatures, people who will detect attacks on liberty at the federal level, who will gird themselves to take the actions necessary for the amendment-proposing convention to take place, and who will protect that convention from those who would subvert its designs.

Without "the right people," it is not clear precisely how the advance of despotism is to be stopped. The education strategy is intended ultimately to encourage the kind of thinking that will give us those people, but it may well be that there is not enough time even for that strategy to complete its work.

On the other hand, it is remarkable just how frail a tyranny can be. In the end, all that has to happen is for people who are thinking about things in one way to begin to think about them in another way. It is imaginable that a tyranny could collapse virtually overnight, illustrating that the power evil has is a gift from those who will not oppose it.

The real value of Levin's book, then, is that it gives readers a deeper appreciation for the history of the Constitution and that it may stimulate them to think along the lines he has cleared for them, but with their own ideas for limiting the power of the federal government. If libertarian constitutionalists are determined to continue attempts (so far fruitless) to improve the state, there is no reason they cannot press for an amendment-proposing convention and write and attempt to popularize their own amendments. Surely they would write amendments protecting the rights related to association by repealing all anti-discrimination laws. We could also expect their amendments to do away with welfare and subsidies both for individuals and for businesses. Perhaps there would even be an amendment making clear that providing health insurance, Social Security, and foreign aid were prohibited to the federal government. At the very least, when presented with the question, But how do we get from here to there? they will have at hand a strategy in addition to the usual ones of prayer, education, and participation in the electoral process.

Finally, concerning existing Amendments to the Constitution and to conclude on a positive note, I borrow once again from Joe Sobran, who wrote, "Whatever can be said about the rest of the Constitution, the Third Amendment is alive and well." Ω

Editor's note. By some counts as many as 28 states have already petitioned Congress to call for the convention.

January 18, 2018

© 2018 Paul LeMoyne
Published in 2018 by WTM Enterprises.

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