John Trenchard wrote in 1698 that government was a mere piece of clockwork, acting in the manner of its construction. The art of the politician, therefore, was to ensure that it moved to the public advantage. Trenchard’s observation constitutes the thrust of Mark Levin’s Liberty Amendments.
In response to executive abuses by King George III, our early state constitutions were overly democratic and featured legislatures that casually breached the inadequate walls that separated them from the judicial and executive branches. From a review of pertinent numbers of The Federalist in the second and third squibs, it is evident that the 1787 US Constitution was written with eye toward better defining and checking the legislative power. That Constitution has been justly and unjustly amended many times over the course of the past century such that today, the executive and judicial branches casually usurp the rightful powers of congress and the states on a regular basis. Great Article I powers and more have fallen into the hands of a president and a majority of supreme court justices. Free government under the existing, de facto Constitutional structure is impossible.
Having established that the structure of government is the sovereign people’s first line of defense against usurpations, we can examine Levin’s suggested amendments with clearer vision and sense of purpose. If ratified, his amendments will restore the balance of power between the people, the states, and a newly invigorated federal system of government.
Repeal the 17th Amendment. The first step is to return the states to their rightful and necessary place in the senate. Mark explains in Chapter Three, “An Amendment to Restore the Senate,” how progressives sold the snake-oil of democracy to justify the 17th Amendment. If a little democracy is good, lots of it must be great. The critical nature of the Framers’ senate design was of no consequence.
The 17th was a mistake; it must go. If no other liberty amendment is ratified, THIS amendment is essential, and may just be sufficient, to restore free government. It returns the all-important structure of congress back to the Framers’ design. As component members of the republic, the presence of the states as political coequals in our lawmaking body is as vital as the presence of representatives of the people. Post 17th repeal senators will not only attend to their employers like their pre-1913 ancestors, Levin would empower state legislatures to recall their senators on a two-thirds vote. A tight state leash on one branch of congress will minimize the tendency of senators to “go native” soon after their arrival in Washington, DC.
The effects of repealing the 17th will be staggering. No longer will anti-10th Amendment lawyers find seats on the federal bench. No longer will unfunded mandates burden state taxpayers. No longer will at-large, statewide, self-serving, popularly derived politicians called senators jump at every beck and call of a demagogic president. Wave adios to open borders and the hostile insertion of islamists into innocent communities.
All good things are possible with repeal of the 17th Amendment. Free government is impossible without it.
Clipping Scotus. In open violation of separation of powers, a very small body of men and women exercise not only an absolute veto over all state and federal laws as well as state constitutions, but in the process often effectively rewrite statutory law, plus the supreme law of the land, on their own.
- When scotus rewrites laws allowed under the Constitution, it usurps the Article I power of congress.
- When scotus assumes legislative power not granted anywhere in the Constitution, it is an act of tyranny.
The Framers’ checks on scotus in the form of an always present threat of impeachment/conviction, and congress’ Article III authority to regulate its appellate jurisdiction are dead letters. Just as the only limit on kings who claimed divine right was death, the only practical check today on scotus is the natural (or unnatural) death of its judges. No republic can long withstand an unchecked, near-authoritarian branch of government.
In Chapter Four, Levin would empower congress, upon three-fifths vote in the House and Senate, to override a majority opinion of the scotus. Likewise, so may the states, by three-fifths vote, override a majority opinion of the scotus. This power is wisely limited to twenty-four months after the date of the opinion. Knowing that the states and a newly federalized congress stand ready to look over their shoulders, the wild social justice predispositions of scotus are certain to subside.
States Directly Amend the Constitution. Chapter Nine. States need not apply to congress. While Article V itself is not amended, its three-fourths threshold to ratify proposed Constitutional Amendments is effectively lowered to two-thirds. As Mark relates, the statists have “commandeer(ed) the sovereignty of the states and citizenry.” While amending the Constitution through Article V was purposely made ponderous in order to set our compact above factional or majoritarian impulses, Article V has proved to be an inadequate means, in the face of accelerating statism, to secure free government. As constituent members of the republic who are far closer to the sovereign people than congress, our states, via their legislatures, are ideally positioned to exercise the measured and careful reflection and judgment so necessary to keep a newly federalized republic within its Constitutional bounds.
Chapter Ten. The last, grand addition to federalism is empowerment of the states to override congressional statutes and executive branch regulations by three-fifths vote within twenty-four months of passage. Nameless, faceless bureaucrats in Washington, DC basements might have second thoughts should they attempt to shut down entire industries or decide to enrich insiders through subsidies to losing enterprises like green energy.
The proposals herein constitute a necessary restoration and expansion of federalism. Recall from the Introduction to this series that the Virginia Plan of government submitted by Governor Randolph to the Federal Convention proposed congressional authority to veto all state laws. This was a reasonable, yet ultimately rejected response to the imbalance of power as it existed between the states and the Continental Congress. As opposed to the new compact of 1787, its careful balance of power long ago flipped in favor of an ever-decreasing number of unaccountable men and women safely ensconced in Washington DC.
We are not used to, and many Americans will be initially uncomfortable with, expanded state oversight of a super-federalized government. But, as Mark explains, his proposals “would help relieve the intensifying dissatisfaction with congressional and bureaucratic interventions in the daily lives of the people.” The people’s attention to their state governments will be reinvigorated as they come to realize the new place of their states in an expanded federal system.
Scotus will not always have the final say in law. Its decisions will be tempered by the realization that the people, through their states, stand ready to judge the judges. As for congress, Mark writes that it will work within “a more rational process in lieu of the current autocratic disorder, and extend republicanism in contrast to its ongoing contraction.”
Just as the federal convention of 1787 dealt with an imbalance of power that, if left unchecked, would ultimately destroy the union, so today must new patriots reverse the rot, and provide the means for the sovereign people to secure their unalienable rights. The Article V process of our Framers was adequate until 1913. Suffice to say that since the New Deal, the frequency of assaults on our compact and the liberty it secured have accelerated. Society is bludgeoned every June with ever more destructive social justice scotus decisions; every week we are subject to God-only-knows executive branch diktats and regulations that have become so common as to not even earn a passing mention in the evening news.
Experience informs us that the processes in Article V are too slow to deal with galloping tyranny. Reason commands us to establish new, expedient, yet prudent means to arrest the tyranny and secure free government.
Mark Levin’s Liberty Amendments do just that.
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