2013/08/12

Mark Levin's Liberty Amendments

Commentator Mark Levin has come out with a new book, The Liberty Amendments, in which he proposes ten constitutional amendments, and argues for an Article V constitutional convention as the way to get them adopted.

While I can commend an effort to develop remedies to constitutional usurpations, Levin has not thought through what is needed. Some of his proposals would actually make things worse. It is not entirely fair to summarize his proposals in commenting on them, since he does discuss them in some detail in the book, but he is welcome to refute the points made here.

A far better list of proposals can be found at http://amend-it.org and you don't have to buy anything to read them.

His list, my summaries in parentheses, and my comments in a different font, follow:

An Amendment to Establish Term Limits for Members of Congress

By itself this would make the situation worse, for the following reasons:
  1. It would shift even more power to staffers and lobbyists, who would remain in place, gathering power and expertise, as members came and went. 
  2.  It would prevent members, who typically arrive without even the expertise to decide who the experts are, from acquiring such expertise.
  3.  It would prevent members from accumulating the connections and favors that would enable them to be effective.

An Amendment to Restore the Senate (repeal of the 17th Amendment establishing direct elections, provisions for replacement of senators before the end of their terms, and establishing the right of a state legislature to remove a senator upon a two-thirds vote).

The 17th Amendment was adopted for a good reason, which needs to be understood before attempting to undo it, even with the additional provisions Levin proposes. State legislatures never did control U.S. senators in the way the Framers intended, and repealing the 17th would not significantly change that. See "Don't repeal 17th Amendment".


An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override

That would only make the process of selecting judges more political than it is, and give Congress more influence over Supreme Court decisions than it should have. What is needed in judges is greater fidelity to the Constitution as originally meant and understood, and the pressures to get re-elected drive Congress away from constitutional fidelity. They now pass legislation with open disregard for its lack of constitutionality, perhaps hoping the Supreme Court will overturn it. The solution, as I propose, would be to appoint them not to a particular court, but to a single pool of federal judges from which they would be drawn at random to serve on particular courts for only a single term.


Two Amendments to Limit Federal Spending and Taxation (limiting the federal government to outlays not exceeding 17.5% of GDP, and limiting total federal tax collections from any source to no more than 15% of a person's income).

This would not work, for the following reasons, among others:
  1. Neither GDP nor "income" is well-defined and cannot properly be used as a determinant in a constitutional amendment.
  2.  Putting a cap on collections or spending would only make every budget something the Supreme Court would have to decide, and it is not equipped to do that. 
  3. If there were an exception for a state of war then Congress would get around it by keeping the country in a perpetual state of war.
The reform needed is to forbid fiat currency to be used as legal tender. This is discussed at "Flaws in Balanced Budget Amendment".



An Amendment to Limit the Federal Bureaucracy (automatic sunset for all departments and agencies if they are not legislatively reauthorized, mandatory congressional authorization of any regulation imposed by bureaucrats if the economic burden exceeds $100 million).

There is some merit in parts of this, but not in making it a constitutional amendment. It is also a mistake to use "dollar" amounts in an amendment (or in a statute) unless the "dollar" is defined in terms of some scarce physical asset, such as gold, silver, or energy. My proposals take a sounder approach, including forbidding the application of administrative regulations to other than government employees or contractors.


An Amendment to Promote Free Enterprise (redefining the Commerce Clause to a specific grant of power limited to preventing states from impeding commerce among the states, and preventing Congress from regulating commerce within a state).

If the Commerce Clause were only a restriction on states then there would be no need to restrict Congress from regulating intrastate commerce. What is needed, and what I propose, is to clarify the meanings of "commerce" and "regulate" and the phrase "necessary and proper for carrying into execution". An amendment that does not do that would accomplish nothing.


An Amendment to Protect Private Property (curbing abuses under the Takings Clause).

Some merit here but not well-written. The main federal-level abuses are regulatory takings, most of which need to be cured by forbidding the regulations, and direct taking of land on state territory through eminent domain without getting the consent of the state legislature or going through state courts. An amendment should specifically overturn Kohl v. United States, 91 U.S. 367, 373 (1876).

Most of the abuses are taking place at the state level, conveying land to private parties, and what is needed there is to clarify what "public use" is and is not, and require that it commence within a year of the taking and continue for some minimum period of years, such as 20 or more. I address this in my proposals.


An Amendment to Grant the States Authority to Directly Amend the Constitution (allowing two thirds of the states, voting for the exact same language, to amend the Constitution, and providing a six year time frame within which the passage must be secured).

This is the one proposal that Levin almost gets right. We need to be able to amend the Constitution without the consent of Congress, which will resist amendments that diminish the powers it claims. But my proposals keep the number of states at 3/4 and also provide a way to independently certify that the amendments are identical and were properly ratified.


An Amendment to Grant States Authority to Check Congress (three fifths of the state legislatures may overturn acts of Congress or larger impact executive orders, within 24 months, with no judicial review permitted).

Some merit here but since many state legislatures only meet once every two years, 24 months would not provide enough time to act. It would also introduce a level of uncertainty to congressional legislation that could be crippling to sound governance in a fast-moving world. There is no need to overturn specific executive orders, but rather clarification that they can only apply to personnel under the executive's supervision, and within the bounds of constitutional statutes.


An Amendment to Protect the Vote (requiring photo ID for voting in person or via mail ballot and prohibiting electronic voting).

Although it is appropriate to require proof of citizenship and residence, there can be no constitutional requirement to present anything one is not required to have, and there is no constitutional requirement that anyone have a name to be eligible to vote. It is also a critical mistake to require government-issued ID, because that gives government too much power to abuse people by withholding identification or corruptly misidentifying them. If you want an Orwellian regime just require government-issued ID. The solution is a modernized notary system that is decentralized and not easily abused by government. See "Most voter ID statutes unconstitutional". 

My main criticism of Levin's proposals is that they ignore most of the more important reforms that are needed. With the few exceptions noted, most of them would be ineffective or counterproductive. Those who would propose constitutional amendments need to think through all the ways they could go wrong and provide precise language that clever lawyers will have difficulty subverting for at least the next 200 years.

See also:

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1 comment:

Rayburn Scott said...

Hi, i'm a poli sci student writing a paper on Disfranchisement of felons and the comparative analysis of state by state and State vs Federal . One of the positions I want to present is the 15th amendment 1st section includes a statement "or of servitude" without defining what servitude is precisely. My argument is felons are protected by this right and it is unconstitutional for states to determine disenfranchisement, because it a right given by the constitution and 10th Amendment guarantees it by making it no longer a state issue. I have been doing a lot of research on this and keep coming up blank. I was wondering if you could give me feedback if my premise is wrong or if there is a court case i cant seem to find. But to keep with the topic of your post. I want to propose an amendment that gives defined standards to the voting process for national elections (including Congressional Races)

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