Mark Levin’s Liberty Amendments burst on the conservative scene in August 2013. Its appeal was not limited to conservative media outlets in talk radio and the internet; the book shot skyward on the New York Times bestseller list to #1 by September 1st. While the second approach to correcting defects in our governing compact has been right under our national noses since 1787, Mark took a modern look at an old clause that had long been downplayed by scholars and disregarded by the public as dangerous. Article V grants nothing. It is no more than recognition of a God-given societal right of the sovereign people to determine the limits of their mutual, governing compact.
Article V state convention opponents regard attempts to correct shortcomings in our Constitution as something novel and dangerous, as if there are no lessons to be learned from free peoples who did, and alternatively others who did not, peacefully step back from the cusp of tyranny. The assumption that delegates of the sovereign people who meet for the purpose of correcting Constitutional defects will propose measures that finish off our republic is implausible. We visit medical doctors to get better, not worse, and certainly not to seek an early death. No people ever met in their sovereign capacity to destroy their society and embrace tyranny.
In Federalist #43, James Madison wrote that Article V struck the right balance between “extreme facility” and “extreme difficulty.” Unfortunately, almost 230 years later, experience has shown that Article V alone, and as written, is an inadequate means to the noble end of restoring free government.
Over the course of four squibs, I hope the reader will accept and appreciate the soundness and necessity of Levin’s proposals to re-federalize our government. My conclusion is that when compared to the processes in Article V, Mark Levin’s Liberty Amendments offer a faster, more expedient, yet equally prudent approach to prompt correction of Constitutional errors and breaches. For practical purposes, his amendments amend Article V . . . yet require Article V to be realized.
First, I will introduce some historical perspective to western people’s efforts to keep free government. The second and third squibs filter pertinent ideas from The Federalist. In particular, the third squib sets the stage for the fourth, in that the first defense of our unalienable rights is the very structure of government. No number of Constitutional amendments can remedy the problems that afflict our nation until the structure of our government is re-federalized. Finally, in the fourth, we’ll look at a couple of Levin’s underrated and not well-understood proposals. I believe the lens of history can bring his ideas into the focus they deserve.
Not all of Mark’s suggested amendments deal with the structure of government. They are outside the scope of this four-part series.
Speaking to future generations, Algernon Sidney (1623-1683) wrote in his Discourses Concerning Government:
Public tranquility is seldom made, and never kept, unless the people retain authority in their hands to oblige their government to keep the governing compact. In time, some trick is found to deprive them of that benefit. It is necessary for anyone who organizes a republic and establishes laws in it to take for granted that all men are evil.
Throughout, the emphasis here is on peaceful efforts to keep or restore the structure of a free government.
In taking an historical overview of some methods to prevent breaches of, or to correct defects in, constitutions, we’ll find several approaches. No single approach is suitable for all peoples at all times, including the United States.
Plato’s Nocturnal Council. In Plato’s Laws dialogue, a small council of ten elders and ten younger men were to “serve as a decisive safeguard” for the natural law rule of government. The council was to have no veto over laws; it would serve in a respected advisory role. While the Nocturnal Council as described never existed, I include it here because similar, extra-legislative councils of various sizes, purposes and compositions were common under the English monarchy, American colonial governments, and the Virginia Plan of government submitted by Governor Edmund Randolph to the federal convention of 1787.
Early Rome. Expulsion of the last Tarquin king and restoration of the Roman Republic was brought about by a peaceful coup d’état. The son of the king raped a leading lady, Lucretia; the people had enough of lawlessness from the royal family and established the first consul. Hereditary kings were replaced with consuls subject to annual elections.
Tribunes. Not many years thereafter, the Roman people threatened violence against a government dominated by consuls and a senate. All parties mutually agreed to the establishment of Tribunes of the People. The Tribunes quelled disorders and had requisite power to represent the plebeians as intermediaries to the senate and curb the indolence of the nobles. Niccolo’ Machiavelli credits the establishment of Tribunes with extending the Roman republic for another three hundred years.
England’s James II. While the Glorious Revolution of 1688 was not bloodless, it was nearly so. Catholic James II concluded that he had so little support, he fled to the court of French King Louis XIV. Protestant William of Orange was welcomed as the new monarch, and on his way to the throne he likely left fewer dead bodies in his wake than the Clintons. A convention parliament gave the imprint of justness in replacing James II with William III.
Pennsylvania’s revolutionary era Council of Censors met every seven years. It shared some resemblance with Plato’s Nocturnal Council and Athens’ Nomothetai in that its purpose was to formally recommend, when necessary, recurrence to fundamental principles called for in the Bill of Rights. Specifically, it was to “inquire whether the constitution has been preserved inviolate in every part,” and was to recommend repeal of any legislation believed “contrary to the principles of the constitution.” If it believed amendments were necessary, it was to call a convention for that purpose.
While this body was removed from the 1790 constitution, it represented acknowledgment that written constitutions are not always self-enforcing, and that they must establish procedures for correcting defects or breaches.
Massachusetts 1780 Constitution. Provision was made for possibly one, and only one, convention to consider amendments. Its authors determined that after fifteen years, in 1795, any errors or defects in the constitution would be evident. The legislature was to call all towns and ask them to assemble their voters. A convention would ensue on a two-thirds vote of the towns.
Articles of Confederation. Amendments to this arrangement, actually a series of treaties among thirteen republics, required approval of all member states. Proposals to allow very limited congressional influence over interstate and external commerce failed in the mid-1780s. For practical purposes, the Articles were unamendable. This aspect of the Articles was largely responsible for prodding reluctant states to meet in Philadelphia in May 1787.
1787 Virginia Plan of Government. The sixth article sought to empower congress to turn back state assaults on the Constitution. Congress was to “to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” While this provision strikes us as horrid today, it reflects the widespread frustration with state legislatures under the Articles of Confederation. States often ignored or actively opposed resolutions of the Continental Congress, in repeated violation of Article XIII: “Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the united States in congress assembled, on all questions, which by the said confederation are submitted to them.”
In my next post, we’ll examine the observations of James Madison and Alexander Hamilton as they apply to keeping free government, and reasonable responses from the sovereign people when defects or breaches of our governing compact are discovered.