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Mark Levin’s The Liberty Amendments

Restoring the American Republic: America’s Third Revolution.                         

By 8.12.13

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The Third American Revolution has begun. 

Mark Levin’s The Liberty Amendments: Restoring the American Republic  is the revolutionary blueprint millions of Americans have been waiting for. Released today, Levin leads the charge for “restoring constitutional republicanism and preserving the civil society from the growing authoritarianism of a federal Leviathan."

Carefully and powerfully written, the book uses the Constitution itself to illustrate how to reform the Constitution itself. To finally turn the tables on progressives and liberals -- Statists, to use the term Levin has brought back to life -- who have spent the last century slowly and not so slowly transforming America into the aforementioned “federal Leviathan.”

Levin knows his subject. The nationally syndicated talk-radio host is also the lawyer heading the Landmark Legal Foundation, and, among his string of credentials a former chief of staff to Reagan Attorney General Edwin Meese III. Levin also has three earlier best sellers that have set the stage for The Liberty Amendments: Men in Black: How the Supreme Court is Destroying America, in which Levin examined the role of judicial activism and the subversion of democracy in favor of the liberal agenda (hint: think slavery, segregation, abortion, the importation of laws from other countries, the role of a Klan member in erecting the so-called “separation of church and state). Liberty and Tyranny: A Conservative Manifesto in which Levin detailed the “modern liberal assault on Constitution-based values…that has steadily snowballed” since FDR’s New Deal. And Ameritopia: The Unmaking of America.  In which Levin reveals the role of the liberal ideal of utopia, the never-never land of human perfection that is always possible with just one more use… just one more… always just one more use… of power. A power that in harsh reality becomes a weapon “to dehumanize the individual and delegitimize his nature…a tyranny disguised as a desirable, workable, and even paradisiacal governing ideology.”

Liberty and Tyranny, written before the dawn of the Obama presidency but published just as the Tea Party burst onto the scene, in fact became what Congresswoman Michele Bachmann lauded as the “intellectual foundation” of the movement. As noted in this space  at the time, the response to L&T was so overwhelming (as captured in this remarkable video of a Levin book signing in Tyson’s Corner, Virginia) it was waved in the air at Tea Party rallies, with former Alaska Governor Sarah Palin photographed holding a copy as she waited to speak.

The problem thus understood and discussed in detail in Levin’s earlier books -- not to mention experienced in daily life by millions of Americans -- the question is clear: What to do?

Levin’s answer is now at hand in The Liberty Amendments, the bookend to Men in Black, Liberty and Tyranny and Ameritopia.

Levin’s research into the Constitution, the debates of the 1787 Constitutional Convention as well as those of the state ratification conventions are beyond thorough. As is his sharp eye for the extensive writings of Founders famous -- James Madison, Alexander Hamilton, George Mason -- and lesser known: Virginia’s Edmund Randolph, Pennsylvania’s Gouverneur Morris and James Wilson along with Elbridge Gerry of Massachusetts and others. Levin has plunged into the contemporaneous thoughts and writings of all the Founders to document precisely what reasoning lay behind the creation of the nation’s founding document.

Writes Levin in his opening chapter of the nation’s current state of affairs: 

Social engineering and central planning are imposed without end, since the governing masterminds, drunk with their own conceit and pomposity, have wild imaginations and infinite ideas for reshaping society and molding man’s nature in search of the ever elusive utopian paradise.

How in the world did America ever get to this place?

How did a country so carefully crafted as a constitutional republic by thoughtful men who had experienced tyranny up close and personal ever get to the point where the federal administrative state runs wild, Supreme Court justices, the president and the Congress disdain the Constitution they are all sworn to uphold and the nation, in Levin’s words, “is teetering on financial ruin due to the unconscionable profligate spending, borrowing, taxing and money printing by the federal government”? How does America wake up every day to find its government exercising unlimited power over the private economic behavior of every American? How is it possible that a federal government designed to operate from a defined “enumeration of grants of specific power” is now:

…the nation’s largest creditor, debtor, lender, employer, consumer, contractor, grantor, property owner, tenant, insurer, health-care provider, and pension guarantor….with aggrandized police powers…(that) for example…regulates most things in your bathroom, laundry room, and kitchen, as well as the mortgage you hold on your house. It designs your automobile and dictates the kind of fuel it uses. It regulates your baby’s toys, crib, and stroller; plans your children’s school curriculum and lunch menu; and administers their student loans in college. At your place of employment the federal government oversees everything from the racial, gender, and age diversity of the workforce to the hours, wages, and benefits paid.”

And that’s before it regulates your light bulbs and toilets.

In effect, over a century after the original American Revolution of 1776, followed by the writing and adoption of the Constitution after exhaustive debate in both Philadelphia at the Constitutional Convention and in the various states that then had to vote up or down on ratification -- a Second American Revolution took place.

A revolution that wasn’t termed as such, that was for the most part non-violent and in fact presented itself as just ordinary-politics-of-the-day. A “reform” that would, Americans of the day were assured, modernize the nation. This Second American Revolution -- the Progressive Movement -- burst onto the American scene in the 1880s. Progressives directly opposed the underlying principles of America. Where the Founders believed man was an individual -- as Levin says a “unique, spiritual being with a soul and a conscience ….free to discover his own potential and pursue his own legitimate interests, tempered… by a moral order that has its foundation in faith….” the Progressives believed something else altogether.

Progressives believed man was not born free, that freedom was not a gift from God but a gift dispensed from the hand of the state. Freedom was redefined as the quest for utopia -- or as Levin has termed it, Ameritopia. And in the endless quest for that utopia the social re-engineering of America, the Second American Revolution -- the effective nullification of the Constitution -- began.

Scornful of the Founders’ belief in limited government, out poured constitutional amendments that restructured the original design of the American government. Next up was the construction of an administrative state, and Levin quotes Alexis de Tocqueville -- who was eerily prescient about what was to come in America long after his death in 1859. America, said the famous French philosopher, could be at risk of being consumed by a system that

…covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

Alas, this is exactly the effect of the Statist or Progressive movement, taking a century to lead the nation into what Levin calls a “post-constitutional soft tyranny” through an endless series of “inventions and schemes hatched and promoted openly by their philosophers, experts, and academics, and the coercive application of their designs on the citizenry by a delusional elite.”

It is remarkable how many commentators, without knowing of Levin’s coming book, have expressed some version of the same sentiments that both Levin today and Tocqueville long ago have expressed. A look back through the last few months and one finds the following headlines: 

“Let’s Get Skeptical: America Is In Need Of A James Madison Moment” (Austin Hill in Townhall); “Government Gone Wild” (Daniel Henninger in the Wall Street Journal); “The Rise of the Fourth Branch of Government” (George Washington University Professor Jonathan Turley in teh Washington Post); “Why There’s a Deficit Trust” (Robert Samuelson in the Washington Post); “Losing America” (U.S. Civil Rights Commissioner Peter Kirsanow in National Review Online); “Our Masters, the Bureaucrats” (Jay Cost in the Weekly Standard); “Slipping the Constitutional Leash” (George Will in The Washington Post); “The Great Disconnect” (Ross Douthat in the New York Times); “Justice Anthony Kennedy’s Contempt” (Rich Lowry in National Review Online); “Is America in a Pre-Revolutionary State this July 4th?” (Roger L. Simon at PJ Media); “Celebrating Liberty As It Slips Away” (Michael A. Walsh in the New York Post); “From the Constitution to Pandora’s Box” (Mario Loyola in National Review Online); “How Free Are We on This July Fourth?” (Editorial Board of the Las Vegas Review-Journal); “Obama Suspends the Law” (Former U.S. Court of Appeals Judge Michael McConnell in the Wall Street Journal); “Big Government Implodes” (Daniel Henninger in the Wall Street Journal); “ The Perils of Dispensing With the Law” (Michael Barone in theNew York Post); “Our Broken Checks and Balances” (Henry I. Miller in National Review Online). 

And that doesn’t even take into account the emergence of the Tea Party, the grassroots surge of interest in the Constitution and the writings of the Founders.

What Levin is proposing in his usual well-researched thorough fashion is, as the subtitle of his book suggests, a Constitutional path to restore the American Republic. He is nothing if not specific -- and most assuredly this book and its contents will infuriate the American Left. One is willing to bet there may even be some “conservatives” out there who, already balking at defunding ObamaCare, will balk as well at the idea of putting a full stop to the pernicious doctrine that Progressivism has shown itself to be. Who cares about the Constitution when you have the New Deal?

So let’s get to this.

Writes Levin:

…I propose that we, the people, take a closer look at the Constitution for our preservation. The Constitution itself provides the means for restoring self-government and averting societal catastrophe (or, in the case of societal collapse, resurrecting the civil society) in Article V.

And there it is. The Constitutional way-out of the Statist nightmare -- or, as Levin calls it the “Achilles' heel” of Statism. Article V of the United States Constitution. Levin reprints the relevant portion of Article V with his italics for emphasis:

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 Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….

Levin notes a very important point. Article V does not provide for a constitutional convention. It provides for a process of proposing amendments. Article V:

…provides for two methods of amending the Constitution. The first method, where two-thirds of Congress passes a proposed amendment and then forwards it to the state legislatures for possible ratification by three-fourths of the states, has occurred on twenty-seven occasions. The second method, involving the direct application of two-thirds of the state legislatures for a Convention proposing Amendments, which would thereafter also require a three-fourths ratification vote by the states, has been tried in the past but without success. Today it sits dormant.

Which is to say, a new Constitutional Convention and the subsequent ratification process would begin the long overdue process of shifting power out of the hands of the federal Leviathan -- balance -- and handing it back to the states. The states that created the federal government -- a much different federal government -- in the first place.

Admits the author: 

I was originally skeptical of amending the Constitution by the state convention process. I fretted it could turn into a runaway caucus. As an ardent defender of the Constitution who reveres the brilliance of the Framers, I assumed this would play disastrously into the hands of the Statists. However, today I am a confident and enthusiastic advocate for the process. The text of Article V makes clear that there is a serious check in place. Whether the product of Congress or a convention, a proposed amendment has no effect at all unless "ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof…" This should extinguish anxiety that the state convention process should hijack the Constitution. 

Thus Levin in The Liberty Amendments lays out in clear, concise language eleven proposed amendments to the Constitution. They are:

  1. An Amendment to Establish Term Limits for Members of Congress
  2. An Amendment to Restore the Senate
  3. An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override
  4. Two Amendments to Limit Federal Spending and Taxing
  5. An Amendment to Limit the Federal Bureaucracy
  6. An Amendment to Promote Free Enterprise
  7. An Amendment to Protect Private Property
  8. An Amendment to Grant the States the Authority to Directly Amend the Constitution
  9. An Amendment to Grant the States the Authority to Check Congress
  10. An Amendment to Protect the Vote

We’ll focus here on our favorites -- actually they are all favorites. But some deserve a particular focus.

  • An Amendment to Restore the Senate

SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article 1.

This amendment may well be, as Levin notes, considered to be “the most controversial and politically difficult to institute.” A rare Levin understatement. But repealing the 17th Amendment, which provides for the popular election of U.S. Senators, would decidedly begin to right the balance in the American governmental ship of state.

The 17th Amendment was sold to Americans by Progressives as, in Levin’s words, “a cleansing and transforming expansion of popular democracy” when in fact it has turned out to be “an object lesson in the malignancy of the Progressive mind-set and its destructive impact on the way we practice self-government in a twenty-first century, post-constitutional nation.”

The United States Senate, as its name indicates, was designed to represent -- the states. For 124 years it did so, producing along the way some of the nation’s greatest legislators including Daniel Webster of Massachusetts, South Carolina’s John C. Calhoun, Kentucky’s Henry Clay, Stephen A. Douglas of Illinois and Charles Sumner of Massachusetts. But as Levin points out, the idea in the early 1900’s was that since electing members of the House of Representatives by direct popular vote was working as designed -- why not do this with senators? 

The obvious answer brushed aside in the day was that the Framers had a reason for making the lower House chosen by popular vote and the Senate by state legislatures. The reason? They wanted both individuals and state governments to have “direct input in the national government” -- the states that had, of course, created the federal government in the first place. To prevent, in the words of George Mason, the possibility that “the national Legislature will swallow up the Legislatures of the States.” The Founders wanted a direct flow of power from the institutions of state government into the process of making federal law. 

The 17th Amendment decidedly undid this bedrock principle -- and all too predictably the federal government did in fact “fill whatever areas of governance and even society it chooses.” Translation?

In point of fact, United States Senators today are not representative of the interests of their state governments -- which are elected directly by the people. Instead they are beholden to, as Levin accurately notes, “Washington lobbyists, campaign funders, national political consultants, and other national advocacy organizations.” Or in other words: goodbye Boston, Albany, Harrisburg, Springfield, Lincoln, Little Rock, Atlanta, Austin, Sacramento, Carson City, Juneau and Jackson -- hello K Street. And who, exactly, elected K Street lobbysists? No one, of course.

The fact of the matter is that the responsibility of the states in the national government as envisioned by the Founders has been stripped away, taking power once reserved specifically for states and turning it over to, as Levin notes, Washington’s “governing masterminds and their disciples.” Indeed, there is considerable irony in the furious anger from President Obama and liberals over the recent defeat of gun control legislation by the U.S. Senate. Who did they blame for the defeat? That’s right -- the NRA. Not an elected state government. They blamed a lobby.

The repeal of the Seventeenth Amendment effectively created K Street and the modern “lobbyist/consultant industrial complex” America has come to know and hate today. To repeal the Seventeenth Amendment would effectively become an attack on that thoroughly “bipartisan” and distinctly well-heeled complex. Most assuredly, as Levin indicates, launching a battle royal between Washington elites and the rest of America.

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

SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.

[…]

SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.

SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.

SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court. 

There’s more in this amendment, but these sections listed above -- designed to rein in what many perceive as an out-of-control federal judiciary will alone doubtless cause an uproar only marginally less vivid than the battle to repeal the Seventeenth Amendment. 

Levin notes the concerns various Founders and others had with the idea of the federal judiciary (to use a modern phrase) “going rogue.” He cites the prescient writings of New York Judge Robert Yates, an articulate opponent of the Constitution. As supporters of the Constitution rallied around The Federalist Papers, Yates and others writing under pen names authored The Anti-Federalist Papers. In Anti-Federalist 11 Yates warned:

The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power…..They are to be rendered totally independent, both of the people and the legislature…No errors they may commit can be corrected by any power above them…nor can they be removed from office for making ever so many erroneous adjudications…

And so it has turned out. Yates died in 1801, two years before Chief Justice John Marshall famously wrote in 1803’s Marbury v. Madison:

     The judicial power of the United States is extended to all cases arising under the constitution.

Levin notes importantly that Abraham Lincoln took the occasion of his first inaugural address in 1861 to speak out in favor of limits to judicial power. Lincoln went on at length that he did not “forget the position assumed by some that national questions are to be decided by the Supreme Court….” But as a staunch opponent of the Court’s fateful 1857 decision in Dred Scott v. Sandford -- in which Democrats led by Andrew Jackson appointee and slave-owner Chief Justice Roger Taney attempted to write slavery into the Constitution -- Lincoln believed the Court had arranged affairs so that “the people will have ceased to be their own rulers.”

Contrast this with that exemplar of the Progressive movement and a liberal hero to this day -- the Democrats’ Woodrow Wilson. Wilson the Progressive -- and staunch segregationist -- “endorsed flat-out judicial tyranny” says Levin. Wilson believed “the federal judiciary was to behave as a perpetual constitutional convention,” rewriting the Constitution at will and “nearly always promoting the centralization and concentration of power in the federal government.” Indeed, things are now so far off track with the federal judiciary that the liberal Associate Justice Ruth Bader Ginsburg has urged the Court to “look beyond one’s shores” to international law when writing and justifying Court rulings. The Constitution? What’s that? 

Levin writes that by “claiming authority not specifically granted by the Constitution, abuses of power would certainly follow, as they have.”

The notion that, for example, Roe v. Wade might have been overturned by three-fifths of the state legislatures had Levin’s amendment been in place in January of 1973 will doubtless cause a frenzy on the left. On the other hand, there is no doubt the Left would love for this particular Liberty Amendment to be in place right now -- so they could try and repeal Citizens United.

Giving the Congress and the States veto power over Supreme Court decisions will surely roil the waters political.

We won’t run through all the other amendments in detail here. It’s safe to say that each in their own fashion will arouse considerable controversy.

Limiting taxation to 15% of income? Abolishing the death tax and prohibiting a value-added (VAT) tax? A failure by the Congress and the President to adopt and sign a budget no later than the first Monday in May mandates “an automatic, across-the-board, 5 percent reduction in expenditures” from the previous year’s budget? Individually reauthorizing “all federal departments and agencies....individually in stand-alone reauthorization bills every three years by a majority vote of the House…and the Senate” -- or said departments and agencies automatically expire? Finally reining in the much abused Commerce Clause? Securing “the fundamental right to own and maintain property” from government regulatory takings by forcing the government to “compensate fully” any financial loss over $10,000?

Oh the howls to come.

Another favorite in this corner is Section 2 of Levin’s Taxing Amendment, which reads:

The deadline for filing federal income tax returns shall be the day before the date set for elections to federal office.

Can you imagine the furor from certain quarters when they realize April 15th -- tax day -- would now be shifted from April to November? Specifically “the first Monday before the first Tuesday” of November? This ingeniously ties the paying of taxes tightly to the tail of those in the federal government who are out there pounding the drums for election. Leaving voters with a fresh next-day memory of the link connecting the amount of taxes paid to votes to be cast.

Ouch.

While the Liberty Amendments are the heart of Levin’s book, it is critical to go back to the reason for this book -- and the undoubted reaction to his proposals that is surely about to rain down on the book and its supporters, not to mention the author himself. Writes Levin in his Epilogue, appropriately titled The Time for Action:

No doubt, in a twist of logic, the state convention process and The Liberty Amendments will be assaulted by the governing masterminds and their disciples as an extreme departure from the status quo and, therefore, heretical, as they resist ferociously all efforts to diminish their power and position. Paradoxically, it is they who distort the Constitutions’ text and trespass its purpose by actively pursuing its nullification and abandonment. History demonstrates that republics collapse when demagogues present themselves as their guardians to entice the people and cloak their true intentions…..Indeed, the closer the approach to constitutional restoration, should that day arrive, a torrent of fuming and malevolent rage will, predictably, let loose, alleging perfidy by the true reformers.

The Liberty Amendments -- all eleven of them -- are a serious work of restoration and reform. They are ironically the very embodiment of that current liberal favorite: “Hope and Change” -- turned back on the entire progressive concept of government. There is in fact no reason whatsoever that Americans must accept what Levin calls the “obtuse and defeatist notion of moderation that accepts the disposition of inevitable societal self-destruction without recourse to an available escape. Its irrationality is self-evident.”

It is all too apparent after a hundred-years plus of the Progressive “Second American Revolution” that the revolution is not only failed but dangerous. Exceptionally dangerous. Dangerous to everything from the larger financial underpinnings of America to the individual lives of Americans who must daily face this, that or the other onslaught from their own government.

The plethora of scandals from recent years -- tellingly in both the Obama and Bush administrations --speaks to the fundamental recognition that the problem is the inevitable out-of-control nature of a massive, intrusive federal government apparatus. From the Fannie Mae and Freddie Mac caused financial crisis of 2008 to recent headlines about the IRS, FEC, DEA, SEC, EPA, State Department, Food Stamps and more, all in a very real sense are nothing but the latest confirmation of just how massive and irrational the federal government has become. Indeed, the defense of President Obama by liberal allies in the IRS scandal is that surely one cannot expect the President to have any idea about what’s going on in his own government because the government is in fact so huge.

Bingo. 

All the way back in 1964 in that famous speech A Time for Choosing (found here) that introduced Ronald Reagan to America as a political figure, Reagan saw all this coming. Said the future president in those famous closing lines: 

You and I have a rendezvous with destiny.

We'll preserve for our children this, the last best hope of man on earth, or we'll sentence them to take the last step into a thousand years of darkness. If we fail, at least let our children and our children’s children say of us that we justified our brief moments here. We did all that could be done.

The challenge Mark Levin’s Liberty Amendments now poses to millions of Americans is exactly Reagan’s challenge.

Will we preserve the last best hope of man on earth?

Will, in Levin’s words, “we the people restore the splendor of the American Republic”? 

Ronald Reagan’s A Time for Choosing has now become Mark Levin’s The Time for Action.

And Mark Levin has provided the blueprint.

The battle is joined.

The Third American Revolution has begun.

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About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.