Andrew C. McCarthy
September 20, 2013
One oft-overlooked aspect of the Constitution's genius is the Framers' humility. They had two animating ideals to guide the Republic they designed. The first, of course, was liberty: The United States would be the first Republic in history in which sovereignty was vested in "We the People," not the central government; in which the central government's function was to serve rather than rule the people; and in which the citizen's autonomy over his life and property was presumed--the central government permitted to burden it only in limited and strictly defined ways. The second ideal was separation of powers: The recognition that power was necessary but inherently corruptive. For liberty to survive, power would need to be divided in a calculated manner, not just among the three branches of the new central government, but also among the central government, the states (which were to retain sovereignty notwithstanding the creation of the Union), and individual citizens.
The Framers were confident about these enduring ideals for a flourishing, free society. Nevertheless, they were sage enough to realize they were mere men. They had undoubtedly made errors. Though they disagreed with the anti-Federalists, the persuasive force of many contentions lodged in opposition to the Constitution was not lost on them. Moreover, even if the compromises they made and the balance of power they struck were suitable to the conditions of the late eighteenth century, they understood that those arrangements might not be suitable forever. History is dynamic. To persevere, a Constitution would need a process for self-correction and for maintaining its animating ideals through changing times.
That process--explaining it, and offering a plan for using it in the manner and for the purpose the Framers intended--is the subject of The Liberty Amendments: Restoring the American Republic, Mark R. Levin's latest effort to reinvigorate faithful constitutional governance.
The mission is not a new one for Levin, a former Reagan administration official, accomplished litigator, bestselling author, and popular radio commentator. This book is the third in a series that explores the battleground between the activist progressives he calls "statists" and conservatives devoted to the originalist school of constitutional interpretation pioneered by Robert Bork, Antonin Scalia, and Edwin Meese (President Reagan's attorney general for whom Levin served as chief-of-staff). Liberty and Tyranny (2009) outlined the competition and its stakes, while Ameritopia (2012) considered statism's philosophical underpinnings, which are antithetical to a Constitution meant to safeguard freedom but nevertheless regnant among the bipartisan Beltway ruling class.
The Liberty Amendments is the "what is to be done" book: a practical, well-reasoned guide to restoring the constitutional order. This is to be accomplished by amending the Constitution. And no, this is not as ironic or contradictory as it sounds.
Anticipating the need to modify our fundamental law from time to time, the Framers prescribed two amendment procedures within the Constitution itself, in Article V. Both are difficult to accomplish, as they must be. A constitution, unlike a mere statute or court ruling, is the basic national compact. It is intended, Levin explains, "to serve as a steady, reliable, and not easily altered apparatus of governance built upon 'unalienable' rights by which a huge, diverse, and vigorous society could successfully govern itself."
Despite some 11,539 proposed modifications since the first Congress convened nearly two-and-a-quarter centuries ago, the Constitution has only been formally amended twenty-seven times (and just two times in the last forty-two years--the last in 1992). One must say "formally" because, as Levin repeatedly demonstrates, the Constitution has been contorted to a fare-thee-well by judicial ukase (which, for example, enables Leviathan to hyper-regulate virtually every item in your home by construing the Interstate Commerce Clause to control intrastate commerce), by ambitious legislative schemes like Obamacare, and by imperious presidents overseeing the vast, metastasizing, and unaccountable administrative state to which Congress has delegated much of its legislative authority.
To roll back this tide is the burden of The Liberty Amendments. The author notes that all twenty-seven formal amendments to the Constitution have been executed through the congressional amendment procedure, under which two-thirds of both houses of Congress may propose amendments, which are not adopted unless approved by three-fourths of the states. Levin, by contrast, urges exploitation of the procedure that has never successfully been used: a constitutional amendments convention called by the states.
The rationale for the Framers' creation of this alternative procedure is, in small compass, the rationale for the book: to empower the states to assert themselves and reinforce limitations on federal authority. As Levin extensively documents, these limitations, including the Tenth Amendment's explicit preservation of state sovereignty, were meant to be significant. Without them, the Constitution would never have been adopted. Yet they have been systematically eviscerated, particularly since the late nineteenth-century dawn of the progressive era.
A meticulous student of the debates surrounding the constitutional convention, Levin recounts that James Madison and the Federalists initially suggested endowing Congress with the sole power to propose amendments. The states would be limited to voting them up or down. George Mason of Virginia, however, led a powerful counterargument that a primary purpose of the Constitution was to guard against the gradual usurpation of state sovereignty by the central government. An oppressive Congress would never agree to propose amendments curtailing its own tyranny. This position carried the day. Article V thus requires Congress, upon the application of two-thirds of the states, through their legislatures, "to call a Convention for proposing Amendments." Like amendments proposed by Congress, those proposed by a convention held at the states' insistence may be adopted only after ratification by three-fourths of the states.
Levin confesses that he was long a skeptic about the state amendment process. So are many conservative lawyers. Allaying their suspicions is an important burden of the book. The fear is that the typically better organized Left would hijack the convention and rewrite the Constitution to complete the obliteration of individual liberty and the transmogrification into FDR's ur-redistributionist "Second Bill of Rights."
As Levin points out, though, the Article V process does not license a full-blown constitutional convention; it permits only an amendments convention. The Constitution could not be scrapped, only modified. And importantly, modifications could not be adopted unless they achieved an overwhelming consensus--i.e., ratification by at least thirty-eight state legislatures (or state conventions assembled to consider ratification). It is worth remembering that the Left achieves most of its erosions of liberty through politically unaccountable courts and bureaucracies precisely because they are too unpopular to win majorities, much less super-majorities.
Although most discussions of separation-of-powers focus on checks and balances among the federal departments, the principal curb on federal power was to be the states. The Constitution, as the Federalist Papers attest, left control over the infinite details of everyday life to the individual and the local government closest and most accountable to him. The federal government was to handle just a few external matters, mainly dealing with national security and foreign relations. To restore that balance, to strip Leviathan back down to size, would take the collective strength and determination of the states. But how to do it?
Levin realizes it is not enough to say the state amendment convention provides the mechanism. It would be as hopeless as herding cats unless there was a concrete plan for the convention: a comprehensive body of proposed amendments tailored to rein in Washington's multifaceted, unsustainable excess. Thus, the lion's share of the book is devoted to proposing and explicating ten specific amendments to revive liberty by re-animating the Constitution's power-checking purpose.
No priority is greater than supplanting the entrenched Beltway ruling class. As designed, the Republic's central government featured citizen legislators, representatives of the people who actually were, well, representative of the people. More out of patriotic duty than financial remuneration, they met infrequently in the nation's capital--just a few months out of the year--reflective of the fact that the national government's responsibilities, though vital, were few and critically reliant on the indulgence of state governments. Over time, as the progressive administrative state grew, particularly under the Wilson and FDR administrations, Washington incrementally devoured state sovereignty. With this dramatic shift in the balance of power, a governing elite emerged--a permanent Beltway ruling class of career politicians whose main interest was in increasing federal power. They now inhabit Congress as if they were life peers or revolve between the bureaucracy and its back-scratching cottage industry of lobbyists, consultants, and celebrity media commentators.
Levin observes that the president is limited to two four-year terms, the worthy example set by George Washington, made permanent by a constitutional amendment after FDR died shortly into his fourth term. Yet no other federal office holders are term-limited. The author's proposed liberty amendments address this anomaly by limiting members of Congress to twelve years of service (in any combination of the House's two-year and the Senate's six-year terms). Supreme Court justices would also be similarly term-limited to twelve-year appointments and their rulings would be subject to congressional reversal.
Most unelected bureaucrats do not have terms to be clipped, but the more salient challenge is the wild disproportion between administrative agency influence over everyday life (huge) and its accountability to the citizen (non-existent). As this is a result of Congress's accountability-dodging delegations of vast regulatory authority--which vests in the bureaucratic sprawl immense power to enact and enforce liberty-killing standards that officials who must face the electorate would not dare try--Levin would sharply reduce its power by restoring congressional control.
To begin with, agencies would terminate absent reauthorization every three years--by standalone bills, to evade the Washington trick of attaching unpopular earmarks to omnibus "must pass" statutory monstrosities that run into the thousands of pages. Moreover, proposed administrative regulations that impose an economic burden of $100 million or more would have to be approved by a special "Congressional Delegation Oversight Committee" (composed of fourteen House and Senate members, limited to three years on the committee). If that body failed to act, the regulation would be disapproved.
As this proposed humbling of the administrative state shows, a big part of Levin's program homes in on Washington's ruinous cruise-control spending. Another amendment, perhaps the most controversial of all, would impose constitutional ceilings on federal spending.
The Framers' original construction of a central government with few, specifically enumerated responsibilities was reflected by strictly limited spending and taxing powers. Spending was restricted to the explicit constitutional grants, and expenditures for the "general welfare" really had to be general, as in for the nation as a whole. The government could not confiscate and redistribute wealth to favor regional or local projects, favored industries, or other special interests. Income taxes were frowned on. "Progressive" taxation--punishing achievement and rewarding idleness by shifting the tax burden to society's productive citizens--was forbidden until passage of the Sixteenth Amendment in 1913, and was ushered in by a wave of class-warfare populism initiated by President William Howard Taft.
After a century of progressive social engineering, Washington no longer even bothers to make a budget. Spending increases are on autopilot. Levin compiles the staggering numbers. Just since 2002, federal spending has doubled to nearly $4 trillion per annum. It has risen from 19 to nearly 25 percent of gross domestic product (spending was 7 percent of GDP at the turn of the nineteenth century), resulting in yearly budget deficits that routinely top well over $1 trillion. As a result, the national debt now stands at a staggering 105 percent of GDP. It took about 200 years for debt to reach $5 trillion; in the eight George W. Bush years, it doubled to $10 trillion, and in a mere five years President Barack Obama has lopped on an even more mind-boggling $7 trillion. Far from corralling it, current estimates see it rising to $25 trillion (you read that right) in nine years.
That barely scratches the surface, for it fails to account for: unfunded liabilities--the promises Washington has made for health care, retirement, and welfare--which exceed $90 trillion; and the monetizing of debt by devaluing the dollar (e.g., such money-printing schemes as "quantitative easing"), which covertly destroys wealth while courting ruinous inflation if not economic collapse. In 2011, the government's triple-A credit-rating was downgraded for the first time in history, and further downgrades are on the horizon, promising an eventual spike in borrowing costs.
There is not much time left, Levin admonishes, to stave off the otherwise inevitable implosion. He thus proposes to require Congress to complete a budget in which spending is capped at 17.5 percent of the prior year's GDP. This would be a seismic shift: a return to Eisenhower era–spending levels, under circumstances where even Reagan era spending exceeded 22 percent and candidate Mitt Romney was excoriated for suggesting a roll-back to 20 percent.
Of course, spending and debt prior to 1990 were bare fractions of what they are now. Levin is demanding that we confront what has become an existential crisis--necessarily meaning that hard decisions would have to be made about the size and scope of the welfare state and its exploding "entitlement" obligations that Obamacare promises to exacerbate. Levin would further restrict yearly government spending to annual receipts, which would have to adjust to a new 15 percent cap on income taxes--a nod to productivity and economic growth, but one that would plainly be a tough sell in a time of welfare state reduction. To introduce more political accountability, the author would require a three-fifths supermajority vote in Congress to raise the debt ceiling and, in a nice touch, move Election Day to the day after income taxes are due to be filed.
The other major plank of Levin's program is the restoration of state power as a check on the central government. Three-fifths super-majorities of the state legislatures would be empowered to repeal federal statutes, Supreme Court rulings, and economically burdensome administrative regulations. The states would be authorized to convene an amendments convention without going through Congress, and the burden for ratifying amendments would be reduced from three-fourths to a still difficult two-thirds of their legislatures (i.e., thirty-four instead of thirty-eight states).
Levin would also repeal the Seventeenth Amendment, which provides for direct democratic election of US senators. This would be wise but extraordinarily controversial, thanks to our misshapen sense of republican democracy as popular voting above everything else. As the author contends, however, the prior system of having senators chosen by state legislators (who are popularly elected) made them beholden to state interests. When that tie was broken, senators became creatures of Washington: national political officials for whom their state was just another interest group.
The result, as we see in the passage of unpopular legislation like Obamacare, is senators who ignore the popular will of the voters who sent them to Washington. They know the state has no recourse during their six-year terms, and that the national party organization, with its prodigious fundraising apparatus, will discourage primary challenges come election time. As the Framers understood, democracy is about much more than voting. It is about avoiding lopsided accumulations of power. Repealing the Seventeenth Amendment would go a long way toward restoring the states as a bulwark against Washington's devouring propensities.
There are additional proposals to revitalize individual liberty, secure property rights, promote commerce, and protect the integrity of elections. This is a comprehensive plan, but never a haphazard one. Levin takes liberty and the separation of powers as his intrinsically linked guiding lights and recalibrates constitutional governance accordingly--just as the Framers foresaw when they sculpted an amendment process that, as Madison predicted, would neither render the Constitution "too mutable," nor "perpetuate its discovered flaws."
The author concedes he is under "no illusions about the political difficulty in rallying support." But if the daunting task of restoring the Republic is to have a prayer, wailing about our dire straits won't do. There must be a mechanism and a plan. The Framers have given us the mechanism; and Mark Levin, their most admiring disciple, is a man with a plan.
This article was originally published at NewCriterion.com. Refer to original article for related links, author bio and important documentation.
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