Books by Levin, Mark R.

Levin, Mark R. Ameritopia. New York: Threshold Editions, 2012. ISBN 978-1-4391-7324-4.

Mark Levin seems to have a particularly virtuous kind of multiple personality disorder. Anybody who has listened to his radio program will know him as a combative “no prisoners” advocate for the causes of individual liberty and civil society. In print, however, he comes across as a scholar, deeply versed in the texts he is discussing, who builds his case as the lawyer he is, layer by layer, into a persuasive argument which is difficult to refute except by recourse to denial and emotion, which are the ultimate refuge of the slavers.

In this book, Levin examines the utopian temptation, exploring four utopian visions: Plato's Republic, More's Utopia, Hobbes's Leviathan, and Marx and Engels' Communist Manifesto in detail, with lengthy quotations from the original texts. He then turns to the philosophical foundations of the American republic, exploring the work of Locke, Montesquieu, and the observations of Tocqueville on the reality of democracy in America.

Levin argues that the framers of the U.S. Constitution were well aware of utopian visions, and explicitly rejected them in favour of a system, based upon the wisdom of Locke and Montesquieu, which was deliberately designed to operate in spite of the weaknesses of the fallible humans which would serve as its magistrates. As Freeman Dyson observed, “The American Constitution is designed to be operated by crooks, just as the British constitution is designed to be operated by gentlemen.” Engineers who value inherent robustness in systems will immediately grasp the wisdom of this: gentlemen are scarce and vulnerable to corruption, while crooks are an inexhaustible resource.

For some crazy reason, most societies choose lawyers as legislators and executives. I think they would be much better advised to opt for folks who have designed, implemented, and debugged two or more operating systems in their careers. A political system is, after all, just an operating system that sorts out the rights and responsibilities of a multitude of independent agents, all acting in their own self interest, and equipped with the capacity to game the system and exploit any opportunity for their own ends. Looking at the classic utopias, what strikes this operating system designer is how sadly static they all are—they assume that, uniquely after billions of years of evolution and thousands of generations of humans, history has come to an end and that a wise person can now figure out how all people in an indefinite future should live their lives, necessarily forgoing improvement through disruptive technologies or ideas, as that would break the perfect system.

The American founding was the antithesis of utopia: it was a minimal operating system which was intended to provide the rule of law which enabled civil society to explore the frontiers of not just a continent but the human potential. Unlike the grand design of utopian systems, the U.S. Constitution was a lean operating system which devolved almost all initiative to “apps” created by the citizens living under it.

In the 20th century, as the U.S. consolidated itself as a continental power, emerged as a world class industrial force, and built a two ocean navy, the utopian temptation rose among the political class, who saw in the U.S. not just the sum of the individual creativity and enterprise of its citizens but the potential to build heaven on Earth if only those pesky constitutional constraints could be shed. Levin cites Wilson and FDR as exemplars of this temptation, but for most of the last century both main political parties more or less bought into transforming America into Ameritopia.

In the epilogue, Levin asks whether it is possible to reverse the trend and roll back Ameritopia into a society which values the individual above the collective and restores the essential liberty of the citizen from the intrusive state. He cites hopeful indications, such as the rise of the “Tea Party” movement, but ultimately I find these unpersuasive. Collectivism always collapses, but usually from its own internal contradictions; the way to bet in the long term is on individual liberty and free enterprise, but I expect it will take a painful and protracted economic and societal collapse to flense the burden of bad ideas which afflict us today.

In the Kindle edition the end notes are properly bidirectionally linked to the text, but the note citations in the main text are so tiny (at least when read with the Kindle application on the iPad) that it is almost impossible to tap upon them.

May 2012 

Levin, Mark R. The Liberty Amendments. New York: Threshold Editions, 2013. ISBN 978-1-4516-0627-0.

To many observers including this one, the United States appear to be in a death spiral, guided by an entrenched ruling class toward a future where the only question is whether a financial collapse will pauperise the citizenry before or after they are delivered into tyranny. Almost all of the usual remedies seem to have been exhausted. Both of the major political parties are firmly in the control of the ruling class who defend the status quo, and these parties so control access to the ballot, media, and campaign funding that any attempt to mount a third party challenge appears futile. Indeed, the last time a candidate from a new party won the presidency was in 1860, and that was because the Whig party was in rapid decline and the Democrat vote was split two ways.

In this book Levin argues that the time is past when a solution could be sought in electing the right people to offices in Washington and hoping they would appoint judges and executive department heads who would respect the constitution. The ruling class, which now almost completely controls the parties, has the tools to block any effective challenge from outside their ranks, and even on the rare occasion an outsider is elected, the entrenched administrative state and judiciary will continue to defy the constitution, legislating from within the executive and judicial branches. What does a written constitution mean when five lawyers, appointed for life, can decide what it means, with their decision not subject to appeal by any other branch of government?

If a solution cannot be found by electing better people to offices in Washington then, as Lenin asked, “What is to be done?” Levin argues that the framers of the constitution (in particular George Mason) anticipated precisely the present situation and, in the final days of the constitutional convention in Philadelphia, added text to Article Five providing that the constitution can be amended when:

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,…

Of the 27 amendments adopted so far, all have been proposed by Congress—the state convention mechanism has never been used (although in some cases Congress proposed an amendment to preempt a convention when one appeared likely). As Levin observes, the state convention process completely bypasses Washington: a convention is called by the legislatures of two thirds of the states, and amendments it proposes are adopted if ratified by three quarters of the states. Congress, the president, and the federal judiciary are completely out of the loop.

Levin proposes 11 amendments, all of which he argues are consistent with the views of the framers of the constitution and, in some cases, restore constitutional provisions which have been bypassed by clever judges, legislators, and bureaucrats. The amendments include term limits for all federal offices (including the Supreme Court); repeal of the direct election of senators and a return to their being chosen by state legislatures; super-majority overrides of Supreme Court decisions, congressional legislation, and executive branch regulations; restrictions on the taxing and spending powers (including requiring a balanced budget); reining in expansive interpretation of the commerce clause; requiring compensation for takings of private property; provisions to guard against voter fraud; and making it easier for the states to amend the constitution.

In evaluating Levin's plan, the following questions arise:

1. Is amending the constitution by the state convention route politically achievable?
2. Will the proposed amendments re-balance the federal system sufficiently to solve (or at least make it possible to begin to solve) its current problems?
3. Are there problems requiring constitutional change not addressed by the proposed amendments?
4. Will leviathan be able to wiggle out of the new constitutional straitjacket (or ignore its constraints with impunity) as it has done with the existing constitution?

I will address each of these questions below. Some these matters will take us pretty deep into the weeds, and you may not completely understand the discussion without having read the book (which, of course, I heartily recommend you do).

Is amending the constitution by the state convention route politically achievable?

Today, the answer to this is no. Calling a convention to propose amendments requires requests by two thirds of state legislatures, or at least 34. Let us assume none of the 17 Democrat-controlled legislatures would vote to call a convention. That leaves 27 Republican-controlled legislatures, 5 split (one house Republican, one Democrat), and quirky Nebraska, whose legislature is officially non-partisan. Even if all of these voted for the convention, you're still one state short. But it's unlikely any of the 5 split houses would vote for a convention, and even in the 27 Republican-controlled legislatures there will be a substantial number of legislators sufficiently wedded to the establishment or fearful of loss of federal funds propping up their state's budget that they'd vote against the convention.

The author forthrightly acknowledges this, and states clearly that this is a long-term process which may take decades to accomplish. In fact, since three quarters of the states must vote to ratify amendments adopted by a convention, it wouldn't make sense to call one until there was some confidence 38 or more states would vote to adopt them. In today's environment, obtaining that kind of super-majority seems entirely out of reach.

But circumstances can change. Any attempt to re-balance the constitutional system to address the current dysfunction is racing against financial collapse at the state and federal level and societal collapse due to loss of legitimacy of the state in the eyes of its subjects, a decreasing minority of whom believe it has the “consent of the governed”. As states go bankrupt, pension obligations are defaulted upon, essential services are curtailed, and attempts to extract ever more from productive citizens through taxes, fees, regulations, depreciation of the currency, and eventually confiscation of retirement savings, the electorate in “blue” states may shift toward a re-balancing of a clearly dysfunctional and failing system.

Perhaps the question to ask is not whether this approach is feasible at present or may be at some point in the future, but rather whether any alternative plan has any hope of working.

Will the proposed amendments re-balance the federal system sufficiently to solve (or at least make it possible to begin to solve) its current problems?

It seems to me that a constitution with these amendments adopted will be far superior in terms of balance than the constitution in effect today. I say “in effect” because the constitution as intended by the framers has been so distorted and in some cases ignored that the text has little to do with how the federal government actually operates. These amendments are intended in large part to restore the original intent of the framers.

As an engineer, I am very much aware of the need for stable systems to incorporate negative feedback: when things veer off course, there needs to be a restoring force exerted in the opposite direction to steer back to the desired bearing. Many of these amendments create negative feedback mechanisms to correct excesses the framers did not anticipate. The congressional and state overrides of Supreme Court decisions and regulations provide a check on the making of law by judges and bureaucrats which were never anticipated in the original constitution. The spending and taxing amendments constrain profligate spending, runaway growth of debt, and an ever-growing tax burden on the productive sector.

I have a number of quibbles with the details and drafting of these amendments. I'm not much worried about these matters, since I'm sure that before they are presented to the states in final form for ratification they will be scrutinised in detail by eminent constitutional law scholars parsing every word for how it might be (mis)interpreted by mischievous judges. Still, here's what I noted in reading the amendments.

Some of the amendments write into the constitution matters which were left to statute in the original document. The spending amendment fixes the start of the fiscal year and cites the “Nation's gross domestic product” (defined how?). The amendments to limit the bureaucracy, protect private property, and grant the states the authority to check Congress all cite specific numbers denominated in dollars. How is a dollar to be defined in decades and centuries to come? Any specification of a specific dollar amount in the constitution is prone to becoming as quaint and irrelevant as the twenty dollars clause of the seventh amendment. The amendment to limit the bureaucracy gives constitutional status to the Government Accountability Office and the Congressional Budget Office, which are defined nowhere else in the document.

In the amendment to grant the states the authority to check Congress there is a drafting error. In section 4, the cross-reference (do we really want to introduce brackets into the text of the constitution?) cites “An Amendment Establishing How the States May Amend the Constitution”, while “An Amendment to Limit the Federal Bureaucracy” is clearly intended. That amendment writes the two party system into the constitution by citing a “Majority Leader” and “Minority Leader”. Yes, that's how it works now, but is it wise to freeze this political structure (which I suspect would have appalled Washington) into the fundamental document of the republic?

Are there problems requiring constitutional change not addressed by the proposed amendments?

The economic amendments fail to address the question of sound money. Ever since the establishment of the Federal Reserve System, the dollar (which, as noted above, is cited in several of the proposed amendments) has lost more than 95% of its purchasing power according to the Bureau of Labor Statistics CPI Inflation Calculator. Inflation is the most insidious tax of all, as it penalises savers to benefit borrowers, encourages short-term planning and speculation, and allows the federal government to write down its borrowings by depreciating the monetary unit in which they are to be repaid. Further, inflation runs the risk of the U.S. dollar being displaced as the world reserve currency (which is already happening, in slow motion so far, as bilateral agreements between trading partners to use their own currencies and bypass the dollar are negotiated). A government which can print money at will can evade the taxing constraints of the proposed amendment by inflating its currency and funding its expenditures with continually depreciating dollars. This is the route most countries have taken as bankruptcy approaches.

Leaving this question unaddressed opens a dangerous loophole by which the federal government can escape taxing and spending constraints by running the printing press (as it is already doing at this writing). I don't know what the best solution would be (well, actually, I do, but they'd call me a nut if I proposed it), so let me suggest an amendment banning all legal tender laws and allowing parties to settle contracts in any unit of account they wish: dollars, euros, gold, copper, baseball cards, or goats.

I fear that the taxing amendment may be a Trojan horse with as much potential for mischief as the original commerce clause. It leaves the entire incomprehensible and deeply corrupt Internal Revenue Code in place, imposing only a limit on the amount extracted from each taxpayer and eliminating the estate tax. This means that Congress remains free to use the tax code to arbitrarily coerce or penalise behaviour as it has done ever since the passage of the sixteenth amendment. While the total take from each taxpayer is capped, the legislature is free to favour one group against another, subsidise activities by tax exemption or discourage them by penalties (think the Obamacare mandate jujitsu of the Roberts opinion), and penalise investment through punitive taxation of interest, dividends, and capital gains. A prohibition of a VAT or national sales tax is written into the constitution, thus requiring another amendment to replace the income tax (repealing the sixteenth amendment) with a consumption-based tax. If you're going to keep the income tax, I'm all for banning a VAT on top of it, but given how destructive and costly the income tax as presently constituted is to prosperity, I'd say if you're going to the trouble of calling a convention and amending the constitution, drive a stake through it and replace it with a consumption tax which wouldn't require any individual to file any forms ever. Write the maximum tax rate into the amendment, thus requiring another amendment to change it. In note 55 to chapter 5 the author states, “I do not object to ‘the Fair Tax,’ which functions as a national sales tax and eliminates all forms of revenue-based taxation, should it be a preferred amendment by delegates to a state convention.” Since eliminating the income tax removes a key mechanism by which the central government can coerce the individual citizen, I would urge it as a positive recommendation to such a convention.

Will leviathan be able to wiggle out of the new constitutional straitjacket (or ignore its constraints with impunity) as it has done with the existing constitution?

This is an issue which preoccupied delegates to the constitutional convention, federalists and anti-federalists alike, in the debate over ratification of the constitution, and delegates to the ratification conventions in the states. It should equally concern us now in regard to these amendments. After all, only 14 years after the ratification of the constitution the judicial branch made a power grab in Marbury v. Madison and got away with it, establishing a precedent for judicial review which has been the foundation for troublemaking to this day. In the New Deal, the previously innocuous commerce clause was twisted to allow the federal government to regulate a farmer's growing wheat for consumption on his own farm.

A key question is the extent to which the feedback mechanisms created by these amendments will deter the kind of Houdini-like escapes from the original constitution which have brought the U.S. to its present parlous state. To my mind, they will improve things: certainly if the Supreme Court or a regulatory agency knows its decisions can be overruled, they will be deterred from overreaching even if the overrule is rarely used. Knowing how things went wrong with the original constitution will provide guidance in the course corrections to come. One advantage of an amendment convention called by the states is that the debate will be open, on the record, and ideally streamed to anybody interested in it. Being a bottom-up process, the delegates will have been selected by state legislatures close to their constituents, and their deliberations will be closely followed and commented upon by academics and legal professionals steeped in constitutional and common law, acutely aware of how clever politicians are in evading constitutional constraints.

Conclusion

Can the U.S. be saved? I have no idea. But this is the first plan I have encountered which seems to present a plausible path to restoring its original concept of a constitutional republic. It is a long shot; it will certainly take a great deal of effort from the bottom-up and many years to achieve; the U.S. may very well collapse before it can be implemented; but can you think of any other approach? People in the U.S. and those concerned with the consequences of its collapse will find a blueprint here, grounded in history and thoroughly documented, for an alternative path which just might work.

In the Kindle edition the end notes are properly bidirectionally linked to the text, and references to Web documents in the notes are linked directly to the on-line documents.

August 2013 

Levin, Mark R. Liberty and Tyranny. New York: Threshold Editions, 2009. ISBN 978-1-4165-6285-6.

Even at this remove, I can recall the precise moment when my growing unease that the world wasn't turning into the place I'd hoped to live as an adult became concrete and I first began to comprehend the reasons for the trends which worried me. It was October 27th, 1964 (or maybe a day or so later, if the broadcast was tape delayed) when I heard Ronald Reagan's speech “A Time for Choosing”, given in support of Barry Goldwater's U.S. presidential campaign. Notwithstanding the electoral disaster of the following week, many people consider Reagan's speech (often now called just “The Speech”) a pivotal moment both in the rebirth of conservatism in the United States and Reagan's own political career. I know that I was never the same afterward: I realised that the vague feelings of things going the wrong way were backed up by the facts Reagan articulated and, further and more important, that there were alternatives to the course the country and society was presently steering. That speech, little appreciated at the time, changed the course of American history and changed my life.

Here is a book with the potential to do the same for people today who, like me in 1964, are disturbed at the way things are going, particularly young people who, indoctrinated in government schools and the intellectual monoculture of higher education, have never heard the plain and yet eternal wisdom the author so eloquently and economically delivers here. The fact that this book has recently shot up to the number one rank in Amazon.com book sales indicates that not only is the message powerful, but that an audience receptive to it exists.

The author admirably cedes no linguistic ground to the enemies of freedom. At the very start he dismisses the terms “liberal” (How is it liberal to advocate state coercion as the answer to every problem?) and “progressive” (How can a counter-revolution against the inherent, unalienable rights of individual human beings in favour of the state possibly be deemed progress?) for “Statist”, which is used consistently thereafter. He defines a “Conservative” not as one who cherishes the past or desires to return to it, but rather a person who wishes to conserve the individual liberty proclaimed by the Declaration of Independence and supposedly protected by the Constitution (the author and I disagree about the wisdom of the latter document and the motives of those who promoted it). A Conservative is not one who, in the 1955 words of William F. Buckley “stands athwart history, yelling Stop”, but rather believes in incremental, prudential reform, informed by the experience of those who went before, from antiquity up until yesterday, with the humility to judge every policy not by its intentions but rather by the consequences it produces, and always ready to reverse any step which proves, on balance, detrimental.

The Conservative doesn't believe in utopia, nor in the perfectibility or infinite mutability of human nature. Any aggregate of flawed humans will be inevitably flawed; that which is least flawed and allows individuals the most scope to achieve the best within themselves is as much as can be hoped for. The Conservative knows from history that every attempt by Statists to create heaven on Earth by revolutionary transformation and the hope of engendering a “new man” has ended badly, often in tragedy.

For its length, this book is the best I've encountered at delivering the essentials of the conservative (or, more properly termed, but unusable due to corruption of the language, “classical liberal”) perspective on the central issues of the time. For those who have read Burke, Adam Smith, de Tocqueville, the Federalist Papers, Hayek, Bastiat, Friedman, and other classics of individual and economic liberty (the idea that these are anything but inseparable is another Statist conceit), you will find little that is new in the foundations, although all of these threads are pulled together in a comprehensible and persuasive way. For people who have never heard of any of the above, or have been taught to dismiss them as outdated, obsolete, and inapplicable to our age, this book may open the door to a new, more clear way of thinking, and through its abundant source citations (many available on the Web) invites further exploration by those who, never having thought of themselves before as “conservative”, find their heads nodding in agreement with many of the plain-spoken arguments presented here.

As the book progresses, there is less focus on fundamentals and more on issues of the day such as the regulatory state, environmentalism, immigration, welfare dependency, and foreign relations and military conflicts. This was, to me, less satisfying than the discussion of foundational principles. These issues are endlessly debated in a multitude of venues, and those who call themselves conservatives and agree on the basics nonetheless come down on different sides of many of these issues. (And why not? Conservatives draw on the lessons of the past, and there are many ways of interpreting the historical record.) The book concludes with “A Conservative Manifesto” which, while I concur that almost every point mentioned would be a step in the right direction for the United States, I cannot envision how, in the present environment, almost any of the particulars could be adopted. The change that is needed is not the election of one set of politicians to replace another—there is precious little difference between them—but rather the slow rediscovery and infusion into the culture of the invariant principles, founded in human nature rather than the theories of academics, which are so lucidly explained here. As the author notes, the statists have taken more than eight decades on their long march through the institutions to arrive at the present situation. Champions of liberty must expect to be as patient and persistent if they are to prevail. The question is whether they will enjoy the same freedom of action their opponents did, or fall victim as the soft tyranny of the providential state becomes absolute tyranny, as has so often been the case.

April 2009 

Levin, Mark R. Men in Black. Washington: Regnery Publishing, 2005. ISBN 0-89526-050-6.

Let's see—suppose we wanted to set up a system of self-government—a novus ordo seclorum as it were—which would be immune to the assorted slippery slopes which delivered so many other such noble experiments into the jaws of tyranny, and some dude shows up and suggests, “Hey, what you really need is a branch of government composed of non-elected people with lifetime tenure, unable to be removed from office except for the most egregious criminal conduct, granted powers supreme above the legislative and executive branches, and able to define and expand the scope of their own powers without constraint.”

What's wrong with this picture? Well, it's pretty obvious that it's a recipe for an imperial judiciary, as one currently finds ascendant in the United States. Men in Black, while focusing on recent abuses of judicial power, demonstrates that there's nothing new about judges usurping the prerogatives of democratically elected branches of government—in fact, the pernicious consequences of “judicial activism” are as old as America, winked at by each generation of politicians as long as it advanced their own agenda more rapidly than the ballot box permitted, ignoring (as politicians are inclined to do, never looking beyond the next election), that when the ideological pendulum inevitably swings back the other way, judges may thwart the will of elected representatives in the other direction for a generation or more.

But none of this is remotely new. Robert Yates, a delegate to the Constitutional Convention who came to oppose the ratification of that regrettable document, wrote in 1788:

They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul [sic] their adjudications. From this court there is no appeal.

The fact that politicians are at loggerheads over the selection of judges has little or nothing to do with ideology and everything to do with judges having usurped powers explicitly reserved for representatives accountable to their constituents in regular elections.

How to fix it? Well, I proposed my own humble solution here not so long ago, and the author of this book suggests 12 year terms for Supreme Court judges staggered with three year expiry. Given how far the unchallenged assertion of judicial supremacy has gone, a constitutional remedy in the form of a legislative override of judicial decisions (with the same super-majority as required to override an executive veto) might also be in order.

May 2005