- Levin, Mark R.
The Liberty Amendments.
New York: Threshold Editions, 2013.
ISBN 978-1-4516-0627-0.
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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:
- Is amending the constitution by the state
convention route politically achievable?
- 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?
- Are there problems requiring constitutional
change not addressed by the proposed amendments?
- 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 