Mark Levin’s Liberty Amendments: Introduction

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.


21 thoughts on “Mark Levin’s Liberty Amendments: Introduction

  1. cliff wilkin

    Great subject matter, Rodney. I look forward to the follow ups. Also would love to see you breakdown the amendment proposals passed by the 2016 Simulation that adjourned yesterday. Go’s bless you and yours. Long live Liberty!

    1. Rodney Dodsworth Post author

      I visited the COS site this morning and didn’t find a summary of yesterday’s proceedings. But, when it is published, I’ll check them out closely. I caught just enough of the convention to witness the passage of one of Mark’s liberty amendments, the one that empowers the states to veto congressional statutes.

      These are exciting times. God Bless.

      1. Gary Hall

        On the up-side, several amendment proposals were successfully offered – including term limits on Congress, the ability for States to over-ride judicial decisions, and a proposal for a different taxation structure.

        However, none of the amendments offered restore validity to the Senate by requiring Senators to support the majority opinion of their State Legislature to retain their position. Instead, we got work-arounds that leave an invalid Senate intact – meaning that no provision was provided to ensure that the constitutional definition of “the States” have continual representation in Congress – which was the entire purpose of establishing that particular chamber.

        Mark Levin gets it, as repealing the 17th Amendment was one of the top 3 issues listed in his book.

        As a matter of fact, any honest historian would tell you that we had a unicameral Federal Legislature under the Articles of Confederation and it didn’t work because the Federal Legislature, being detached from the States Legislatures, started causing States to lose their sovereign ability to govern within their own borders.
        Adding the Senate added balance to the Federal Legislature so that the Federal government could not dominate the states.

        As it stands, even though Congress is separated into two legislative chambers, both chambers represent the same electorates. One chamber represents ‘the People’ for 2 years, the other represents ‘the People’ for 6, and the constitution definition of the States go without Congressional representation. Period.

        The fact of the matter is, the Senate was not designed to be elected by popular vote because ‘the People’ already have an entire chamber of Congress to represent them. And, regardless of Senate vacancies caused by electoral deadlocks, ‘the People’ never lost their Congressional representation and there has never been an instance where Congress could not conduct business due to Senate vacancies. Therefore, the only people who ever lost their Congressional represention due to electoral deadlocks were *GASP* the State Legislatures.

        The 17th Amendment did not fix a problem. It exacerbated one and it deserves to be addressed.

        Just my 2 cents….

          1. Rodney Dodsworth Post author

            I prefer the FairTax, because it is far more difficult to corrupt. All good things are possible upon repeal of the 17th Amendment.

          2. "DonAmeche"

            I agree with you 100% about the need to repeal the 17th BTW. FairTax seems a good thing. I just wonder if the Taxing authority itself should be brought back to the original Constitution . So both a Fait Tax as well as a repeal of the 16th.

            It is amazing to see the momentum of the COS idea in two years.

          3. Gary Hall

            IMHO, if repealing the 17th Amendment is essential then the simulation showed that we still have a lot of work to do educating not only the public, but our legislators as well about the issue.

      2. cliff wilkin

        A Complete Success.

        The first ever, historic Convention of States Simulation is now complete. One-hundred and thirty-seven delegates representing every state in the nation convened in Colonial Williamsburg, Virginia, Sept. 21-23. It was an amazing experience and the Convention operated flawlessly. If you watch the live stream link below, we know you’ll agree.

        The full Convention will be issuing a statement on Monday morning, which will include the proposed Amendments which were successfully voted out.

        We know you are anxious to see the complete results, and we appreciate your patience. As an independent assembly, the statement about the final results from the Convention must come from the body, and not our organization. We will circulate it on behalf of the Convention.

        Here’s a quick preview. The Convention passed amendment proposals on the following six ideas:
        1. Requiring the states to approve any increase in the national debt
        2. Term limits on Congress
        3. Limiting federal overreach by returning the Commerce Clause to its original meaning
        4. Limiting the power of federal regulations by giving an easy congressional override
        5. Require a super majority for federal taxes and repeal the 16th Amendment
        6. Give the states (by a 3/5ths vote) the power to abrogate any federal law, regulation or executive order.
        “The events at Williamsburg will be remembered as a turning point in history. The spirit of liberty and self government has been reignited.” Michael Farris – Co-Founder, Convention of States Project.

        1. Rodney Dodsworth Post author

          Great! Near the close of the convention, Mark Meckler said that this simulation may be remembered in the future as the Annapolis convention of September 1786 . . . a precursor to the main event. I count at least three of Mark Levin’s Liberty Amendments.

    2. William Spielberger

      I also really enjoyed the walk through history. It helped to start to make the reasons for Article V apparent. There is no reason to think that the people at a convention today are any less capable than the Founders when it comes to recognizing the need to do exactly what the Founders had in mind. Make changes to stop a runaway central government. I will enjoy following this blog.

  2. William Prophett

    FairTax makes sense to me as well. Indeed, the complicated taxation without appropriate measures of representation is a reality that we should not accept, and luckily we don’t have to. As Americans we must deny the appropriations of this illegitimate corporation that seems to have self-proclaimed this country to be theirs.

    Remember, w/ Taxes – Simple is the Solution, Complexity is a way to keep the Corrupt Consolidated.

    1. T.E. Sumner

      Agreed, simpler is usually better.
      However, many locations practice the one final straw that is captured in
      “No Taxation without Representation”
      Chicago rings the city with toll booths to tax suburban commuters using the Kennedy or the Tri-State and so on. They push the tax outside their borders, and those suburbanites have no way to complain about the commuter tax, except indirectly to Springfield.
      The Big Apple imposes its own income tax. Do you think any Connecticut or New Jersey commuter gets a say in how NYC spends the money they extract from them?
      Absentee landlords, of which there are millions, fare the worst and are the least represented. You vote where you are domiciled, not where your rent house is located. So all those real property taxes are spent based on what your renter wants, not you. If you’re out of state, you can’t even elect a state senator or state representative to help you.
      Own a second home, a timeshare or other out of state property? Forget about having a vote. You don’t.
      It seems only “fair” to me that if you pay taxes, you should have a vote.
      And, if you don’t pay taxes, you shouldn’t be able to vote to increase the taxes others pay.
      ..just sayin

  3. Carol Menges

    Simpler yet than Fair Tax is Flat Tax. Simple, fair and everyone has the same percentage of skin in the game.

    These are the notes I took during the voting at COS SIM:

    1. Debt limitation & balanced budget–Passed 44/? With some abstentions.
    2. Commerce clause–Passed 45/5
    3. Term limits–Passed 35/12/3 (that last number refers to abstentions: Hawaii, Iowa and Oregon.
    4. Abrogation of federal law–Passed 43/5/2 (last number is abstentions: Louisiana and Ohio)
    5. Abrogation of rulings by Supreme Court–roll call vote; I don’t have that vote because my computer was temporarily hacked.
    6. Taxes (what kind, how much, how to collect) & 16 Amendment–an amendment was made to table it due to being too complicated to fix during short convention: 21/21/8 (Louisiana this time was absent rather than abstaining); But the original proposal Passed 33/14/3 (Hawaii and Mississippi abstained and Louisiana was absent
    7. Line item veto–for several reasons, particularly that it didn’t cover riders to unrelated bills, Failed
    8. Rules and Regulations–lots of debate; I don’t have the vote
    9. State of Convention (basically, how important it was deemed to hold a COS per the stipulations in our Application to the States)–Passed overwhelmingly by voice vote/Ohio voted No.

    1. T.E. Sumner

      Simpler yet is Repeal the 16th and let each state decide how it will pay its “fair” share of taxes imposed by a Federal budget. (Remember it’s based on population.)
      That would stop deficits, for one thing.
      It also would end the personal relationship between each citizen and the US Government, which is revolting.
      Whether a state wants to impose FAIR tax or Flat tax to raise the revenue to pay its portion of Federal budget is their choice.
      Personally, I feel if I am a member of a group and they need money that every single member should pay the exact same amount. But, if not enough money is raised, then voluntary contributions from those who have and want to fund the group is appropriate. We need to stop having people open up their personal lives to the government and have them pass judgment on whether something is tax free because they think it’s good and something else is bad and we must pay tax on it.

  4. T.E. Sumner

    Levin put Term Limits first and Judicial Term Limits third. These are important, which is why the sim also passed term limits. Levin wanted 12 years, but that is at least 3 years too long for elected representatives. The concept of citizens who have ordinary lives and then take time off to serve as representatives is what the Founders wanted and we need. We don’t need a class of political elites rotating in and out of various offices without the slightest concept of what ordinary citizens go through in real life. After several years in political office, people forget what real people live like.
    I would propose that after 5 or 6 years a Congressman needs to stop participating in government, including appointed offices, and return to real life. The retiring representative can go into consulting, but that is not taking time off from politics. If the retired official can make it in the real world for at least two years, then he can run again. If he was appointed to a political position in the government or the party or did consulting with or about the government, then no, he has to go back to real life for two years and then come back. We need to end career politicians. Career judges are almost the same way. Even Supreme Court justices should be re-confirmed every several years. I would suggest 8 years maximum with 2 years off from all government, including consulting and appointed offices before coming back to run for office or be appointed. For Justices re-confirmation at least every 8 years.
    The second Levin proposal is repealing the 17th, but this is part of restoring the so-called “checks and balances” in the Constitution. The balance was supposed to be among The People, The States and the Federal government, not the people and The People and the Federal government. But even as this balance was lost to popular Senate elections of the 17th, we have survived it. So, it cannot be that high a priority.
    Levin’s fourth proposal is to limit taxation to 17-1/2% of GDP. This is not so well thouht out, since GDP includes government spending itself and includes Investment spending of businesses. A more rational basis for limiting taxation is Net Domestic Product less Depreciation or Personal Consumption less Household Depreciation. Besides the basis for taxation being poorly thought out, by specifying a number of 17.5%, you can bet your last dollar that the government will spend right up to if not over that limit AND will push spending onto states to fulfill Federal mandates. Bad formula for success.
    Levin’s fifth proposal puts appropriations under stovepipes for individual re-authorization every 3 years. No, Congress needs to go to a Biennial budget. Moreover, no consumptive spending except inside the 2-year period that is fully paid for with either taxes or fees. While there is nothing wrong with specifying spending by department or agency, etc., we have to start at the top level first. Create a simple high-level budget with 20 to 100 line items. Then break these items into smaller lists in the next phase, and those into lists of even smaller amounts. This process allows policy makers to see how the budget breaks down.
    Jimmy Carter and others proposed ZBB, zero-based budgeting, and build up to a summary budget. The problem with this backwards approach is that no department is ever going to say it needs less money. The budget will simply grow by 5% every year. Starting at the summary level and breaking apart the total, allocating it down, avoids this problem. It also allows policy makers to prioritize one agency over another. And it does not prevent a department from coming back in, when it is truly squeezed, to try to justify more money for itself.
    Capital spending should be outside of this biennial process.
    Only for “investments” by government should borrowing and repayment be extended beyond the biennium and only if needed. Investment means buying or constructing a durable physical asset whose life is longer than the 2 years of Congress. If a durable asset is purchased and cannot be paid for during the biennium of Congress, then borrowing to pay for it must be authorized by a super-majority of Congress and a specified method to pay the borrowing back must be written into law. While a simple majority can approve a budget without borrowing, all expenditures that exceed projected revenues during the biennium must be paid for by additional sources of revenue or else fall under the durable asset payback provision. All borrowings with a specified payback plan must still balance with projected revenue, which may require additional taxes, fees, or the sale of other assets, and the repayments become the highest priority in new budgets until repaid and must never be prioritized lower than any current year items.
    Levin’s sixth proposal is about the Commerce clause, although it’s unclear what he is proposing except to limit Federal purview to actual interstate commercial matters. No one can believe the Federal government should interfere inside a state in matters that are wholly contained within the state, unless the matter is within the purview of the Federal government in guaranteeing a republican form of government in the state or other Constitutionally guaranteed rights, such as the 2nd Amendment.

    More importantly and not fully developed in Levin’s proposals, we need to pull back the legislative power of the Executive and the Judiciary. Every single Federal law should specify the exact wording of regulations. If Congress does not prescribe the exact wording in the law, then the Congress can ask the Executive to propose wordings, but only Congress may pass (approve) the actual written regulation. All the Executive Orders and Actions would be completely nullified, period. The Supreme Court held that the President could clarify things left vague or without specificity in laws passed by Congress. This long held “power” needs to be negated by Amendment, preventing Congress from devolving its responsibilities to the Executive and requiring all writings to be approved by Congress.
    If Congress doesn’t approve a regulation, then it cannot be followed by the administration.
    Eminent domain is tricky and is spoken to in his seventh proposal, although it’s unclear what problem Levin is trying to solve here.
    As to the Voting by photo ID, Levin’s tenth, this is becoming a huge issue. I believe biometrics and the general term “securely identifying” citizens as voters are the most important precepts going forward. The huge number of undocumented immigrants (illegal aliens) makes capturing biometrics of entering visitors mandatory. For citizens, comparing biometrics with those on file prevents stolen passports and driver licenses from being used illegally by forgers, counterfeiters, and other fraudsters.
    The exact same process for voting should be in place. Register a citizen’s biometrics to vote and capture biometrics when ballots are cast. Photo IDs may sound good, but they’re insufficient.
    In support of Levin’s eighth and ninth proposals for lowering requirements for Constitutional amendments to permit States to disapprove of Congressional legislation by a 2/3 majority vote of States. But, let us say that no one has ever gotten so far with a Convention of States as proposed in Article V as the groups active today.
    The Convention of States provision in Article V was added specifically to address those matters that the Federal government would be resistant to amending itself because it would forfeit its power back to the States.
    In past attempts to call for a Convention of States, Congress (fearing loss of control) offered Amendments itself. While the Congressionally-proposed Amendments seemed acceptable in the past, it is unlikely they would propose Term Limits unless efforts at calling a Convention were imminently close to succeeding.
    The same is true of over-spending, out of balance budgeting and other things that Federal officials want to maintain the upper hand in, like immigration.
    But the single most important fact is that nothing in Article V requires that calls from states for a convention be about the same topic. It is mute about what the calls are for, just that 2/3 of states have made a call. It doesn’t even place a time limit on calls – they can be years apart. (Considering the snail’s pace of state legislative process, old calls are still good.)
    The Constitutional requirement for ratification by 3/4 of states does not seem excessive for changes to the Constitution, whether proposed by Congress or by a Convention of States. That is the circuit breaker most nail-biting preservationists want to remember.
    No one challenges the pronouncements that all calls must be on the same topic, nor has anyone challenged the notion of calls becoming stale. If a state ever called for a convention for any purpose at any time that counts, and when 2/3 of the states have asked for a convention, Congress is obligated to call a convention of states. Why does anyone think that calls expire or must specify what will be discussed? These are matters for States to decide. They can regulate any Commissioner they send to participate in a Convention, or not if they so choose. It is not proper for Federal Judges or the Congress to pass judgement on subject matter nor staleness. Only States can say they have retracted a call or not and decide what subjects can be proposed for Amendments.

    States should be able to disapprove of both Federal legislation, including regulations, and Federal judicial decisions.
    If Congress by majority vote disapproves of a Federal regulation or Executive Order or Action, or a majority of states disapprove, then the Congress may pass a Bill of Disapprobation without the President’s signature to nullify the regulation or Executive’s Action or Order. Similarly, States can disapprove of these same items or in addition a Federal law passed by Congress if a majority of States pass Bills of Disapprobation.
    Court interpretations must comport with the true meaning of the law.
    If the Court misinterprets a law Congress wrote and passed, then Congress has the right to pass an advisory bill, not requiring the agreement of the President, of how the law actually was meant to be interpreted. Similarly, States can correct the Court when a majority of states concur on a misinterpretation of Federal law.
    If the Judiciary claimed a particular interpretation of the Constitution to arrive at an undesirable interpretation, then a super-majority of Congress or a super-majority of States can knock the Court’s misinterpretation of the Constitution down by passing legislation as to the true meaning of the Constitution. In neither case should the President be involved in approving the disapproval of the Court’s decision, since a super-majority is veto-proof.
    I call these actions Bills of Disapprobation and Bills of Verity and we need Amendments to add them to the Constitution.
    While Levin commands national celebrity, I don’t believe his suggested Amendments are all that great except the ones mentioned above.

  5. Don Sutton

    Thanks again Rodney! It was thrilling to see potential Amendments debated by the commissioners at the mock in Williamsburg, VA last Friday. My guess is that several of the Amendments suggested by Mark Levin in his book will be debated when the real COS happens. Let’s make it happen!

  6. TOBY L SHORT, US ARMY (ret)

    I’ll bet not one in several thousand educated college students is capable of recalling most of the historical background presented in the article. By God, that is the reason we are losing our Republic. Americans have forgotten our past, and that is dangerous. If we don’t remember our history, we are likely to slip into tyranny without even recognizing the dangers we face. Ms Ayn Rand’s work, ‘Atlas Shrugged’, describes a society that has been lost to tyranny and – Saul Alinsky’s work, ‘Rules for Radicals’ describes how to steal a society’s freedom. Both should be required reading and taught in context, but good luck with that in liberal academia. Please continue to publish; the Article V work being done here has the potential to awaken Ms Rand’s Atlas, and save our society.

    1. Rodney Dodsworth Post author

      Yes, the elites in education have kept their students ignorant. I will do my best to emphasize the historical background of free government.

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