‘The Liberty Amendments: Restoring the American Republic’ by Mark R. Levin (Threshold Editions; August 13, 2013)
Table of Contents:
i. Introduction/Synopsis
PART I: WHY THE LIBERTY AMENDMENTS ARE NECESSARY
1. The Birth of Confederation and the Framing of the American Constitution
a. Limits on the Power of the Federal Government & Federalism
b. The System of Checks-and-Balances: The Branches of Government
2. The Rise of the Federal Government: The Erosion of Federalism and the Breakdown of the Limits on the Central Government
3. The Effect of Big Government: Higher Taxes, More Debt and Less Freedom
4. What Can Be Done?
PART II: THE LIBERTY AMENDMENTS
5. Amendment 1: An Amendment to Establish Term Limits for Members of Congress
6. Amendment 2: An Amendment to Restore the Senate
7. Amendment 3: An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override
8. Amendment 4: An Amendment to Limit Federal Spending
9. Amendment 5: An Amendment to Limit Taxation
10. Amendment 6: An Amendment to Limit the Federal Bureaucracy
11. Amendment 7: An Amendment to Promote Free Enterprise
12. Amendment 8: An Amendment to Protect Private Property
13. Amendment 9: An Amendment to Grant the States Authority to Check Congress
14. Amendment 10: An Amendment to Protect the Vote
PART III: HOW TO ENACT THE LIBERTY AMENDMENTS AND CONCLUSION
15. Amending the Constitution: The Two Ways
16. Amendment 11: An Amendment to Grant the States Authority to Directly Amend the Constitution
17. Conclusion
i. Introduction/Synopsis
When the early states came together to discuss the possibility of establishing a confederacy, they did so with a great deal of hope, but also a great deal of trepidation. The hope was that a federal government might be formed that could handle the few issues that were common to all the states but which could not be dealt with by the states individually. The fears, on the other hand, were that this government might come to gain an enormous amount of power; that this power might come to be concentrated in the hands of very few; and that the federal government as a whole might end up overreaching its purview and meddling in affairs that ought rightly to be left to the states and the various local governments (if not individuals themselves).
Thus the constitution was framed in such a way that the power of the federal government would be split between 3 separate branches—each acting as a check-and-balance on the power of the others. And the power of the federal government as a whole was limited to certain specific areas—all other areas being left expressly to the power of the states and local governments (and individuals).
Over the past century, though, this original arrangement has largely been undone. Indeed, after numerous constitutional amendments—and loose interpretations of the constitutions itself—each of the branches of the federal government has, by turns, usurped (or been left with) more power than it was ever meant to have, and the federal government as a whole routinely involves itself in matters far from federal in nature—to the extent that it now insinuates itself into virtually every aspect of life, political, economic, and social.
For author and commentator Mark R. Levin it’s time we reversed this situation. For while those who made for the changes may have thought they were strengthening the nation, the fact is that the changes have contravened the very wise principles upon which the nation was built, and the practical results have been nothing but negative. Specifically, the changes have left the nation with nothing but ever-increasing taxes, ever-mounting debt, and ever-more soft tyranny for some with ever-reduced freedom for everyone else.
And the reform we need, according to the author, runs more than legislation-deep. It is reform that needs to happen at the very source: it is the constitution itself that must be reformed. For only radical constitutional reform can undo the radical and misguided reform that has come before.
Specifically, Levin proposes 11 constitutional amendments. They include: 1) term limits for members of Congress; 2) the election of Senators to be returned to state legislatures; 3) term limits for Supreme Court Justices (and the opportunity for federal and state legislatures to override Supreme Court decisions with a supermajority); 4) limits on federal spending (with an eye to curbing federal debt); 5) limits on taxation; 6) limits on how much power Congress can delegate to the federal bureaucracy; 7) limiting the federal government from interfering with economic activity that does not pertain to interstate or international trade; 8) requiring the government to compensate property owners for the devaluation of property caused by regulations; 9) allowing the states to amend the constitution directly (without having to go through Congress); 10) granting states the right to overturn the laws and regulations of Congress with a supermajority; 11) requiring voters to produce photo identification at election booths.
Of course, the federal government cannot be expected to make the proposed changes itself (since many of the amendments entail limiting this government’s power). Thankfully, though, it needn’t; for as the author points out, provisions exist under Article V of the constitution that allow the document to be amended not just at the instigation of Congress, but at the instigation of a state-led convention—which is precisely what Levin is pushing for here.
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What follows is a full executive summary of The Liberty Amendments: Restoring the American Republic by Mark R. Levin.
PART I: WHY THE LIBERTY AMENDMENTS ARE NECESSARY
1. The Birth of Confederation and the Framing of the American Constitution
The American Confederation was first established by the early states in 1776 through 1787. And when it comes to the impetus behind this action, it was distinct and well-defined: the states recognized that there were aspects of political life that affected each of them but which they could not handle individually (such as national defense, and trade disputes between the various states [loc. 1631-50])—and thus they wanted to establish a federal government to address just these issues.
a. Limits on the Power of the Federal Government & Federalism
But—and this is important—the states were wary that the federal government they established would be wont to impinge on matters that extended beyond those that could not be handled by the individual states (and individuals themselves). And thus they took special care to frame the constitution in such a way that the federal government would be empowered to handle those and only those issues that could not be handled except through coordinated action. As Levin explains, “other than the limited, specified powers granted to the federal government, the states retained for themselves plenary governing authority. The debates during the Constitutional Convention and the state ratification conventions are unequivocal in this regard. During the ratification period, the Federalists repeatedly assured the Anti-Federalists and other skeptics of the proposed federal government’s limits. For example, [James] Madison argued in Federalist 14, ‘In the first place, it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws: its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.’” (loc. 187).
And in case the Constitution is not already clear enough on this point, an amendment was later added (the 10th) to reinforce the issue. As Levin explains, “the Tenth Amendment underscores generally and simply the division of authority between the federal and state governments: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’. The Constitution would not have been ratified [Levin continues] had the Federalists refused to agree to the inclusion of this explicit recognition of state sovereignty, carried over from the Articles of Confederation, as part of a series of amendments—which would be adopted when the First Congress convened. It is a declaration of the indispensable role of the states in American life, which is loosely referred to as federalism” (loc. 2012).
b. The System of Checks-and-Balances: The Branches of Government
The Framers of the Constitution worried, though, that even this arrangement might be compromised if power was allowed to be concentrated in too few hands in the federal government. Thus they sought to counteract this by way of dividing-up the power of the federal government between multiple branches (the legislative, executive and judiciary), with each branch organized in such a way that it might act as a check-and-balance against the others. As Levin explains, “The Framers attempted to control the purview of the federal government through a carefully balanced retinue of checks on each branch of the federal government’s power. These divisions of enumerated authority between the branches meant that no one part of government could dominate the others or subsume the states’ power. In this way, the civil society and individual sovereignty could be preserved. The blueprint for this system, the Constitution, was the greatest mechanism for human governance ever created” (loc. 397; see also loc. 174, 324, 1328, 2063, 2210).
As we can see, then, the Framers of the Constitution took special care to ensure that the power of the federal government would be checked as much as possible, and that the lion’s share of decision-making would be left to the states and the citizens themselves. In this way, the benefits of having a federal government would be established, while as much liberty as possible would be preserved.
2. The Rise of the Federal Government: The Erosion of Federalism and the Breakdown of the Limits on the Central Government
As much as the Framers took pains to ensure that the federal government would be kept in check, however, over the past 100 years or so, the limits on this government have largely been eroded, and thus the federal government has come to wield more power than it was ever intended to have (loc. 32, 145, 400).
And this is no accident. The fact is that various members of the federal government have, over the years, felt that the limitations on them were not in fact a good thing, but merely stood in the way of their well-intentioned and progressive changes (Levin calls such people ‘Statists’ [loc. 32]). And in order to push these changes through, the Statists have manipulated the Constitution in multiple ways in order to get their way—including side-stepping it when possible, and amending it when needed (loc. 400).
The result is that we now live in a post-constitutional world, where the federal government enjoys the lion’s share of the power, and it routinely runs roughshod over the liberty of the states and the individual citizens. As Levin explains, “this is not doomsaying or fearmongering but an acknowledgment of fact. The Statists have been successful in their century-long march to disfigure and mangle the constitutional order and undo the social compact… Their handiwork is omnipresent, for all to see—a centralized and consolidated government with a ubiquitous network of laws and rules actively suppressing individual initiative, self-interest, and success in the name of the greater good and on behalf of the larger community” (loc. 34). Elsewhere, the author adds that “the problem today… is that we have had a century or more of elected officials who have incrementally dismantled the Constitution’s structure, leaving us—as I wrote in Ameritopia—in a post-constitutional period. / As the Progressives grew in influence in state and federal governments, the federal government—by necessity, from the Progressives’ perspective—grew more dominant and intrusive. A top-down centralized government was required to pursue utopian objectives of economic, social and cultural egalitarianism and reformation” (loc. 402 / 421).
3. The Effect of Big Government: Higher Taxes, More Debt and Less Freedom
The evidence of the power of the central government is everywhere. Most evidently, we can see it in the ways that the federal government has set up rules and regulations in virtually every aspect of life. As Levin explains, “what was to be a relatively innocuous federal government, operating from a defined enumeration of specific grants of power, has become an ever-present and unaccountable force. It is the nation’s largest creditor, debtor, lender, employer, consumer, contractor, grantor, property owner, tenant, insurer, health-care provider, and pension guarantor. Moreover, with aggrandized police powers, what it does not control directly it bans or mandates by regulation. For example, the federal government 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. Indeed, the question is not what the federal government regulates, but what it does not. And it makes you wonder—how can a people incapable of selecting their own lightbulbs and toilets possess enough competence to vote for their own rulers and fill out complicated tax returns?” (loc. 129).
And speaking of tax returns, this is another way you can tell of the ever-growing power and force of the federal government. For as the federal government has come to involve itself more and more in Americans’ lives, the cost of these intrusions has gone up and up, resulting in ever-increasing taxes for the people. As Levin points out, “when the federal income tax was instituted one hundred years ago, the top individual income tax rate was 7 percent. Today the top rate is about 40 percent, with proposals to push it to nearly 50 percent” (loc. 153).
Of course, not all of the government’s bills have been paid by the people. Rather, a good portion of the funds needed to pay these bills has been borrowed, thus leaving the nation with an enormous and ever-growing debt—which is yet another way we can tell of the size and sway of the federal government (loc. 137-43). As Levin explains, “the federal government has incurred a fiscal operating debt of more than $17 trillion, far exceeding the total value of the annual economic wealth created by the American people, [and] is expected to reach $26 trillion in a decade. It has accumulated unfunded liabilities for entitlement programs exceeding $90 trillion, which is growing at $4.6-6.9 trillion a year. There is not enough money in the world to make good on the federal government’s financial obligations” (loc. 143).
And the debt is not only crippling the nation with interest payments right now (loc. 1059), its snowballing nature ensures that even future generations will be in hock (loc. 110, 1028)—if the sheer weight of it does not completely collapse the economy before then (loc. 118-33).
In short, then, the size and power of the federal government is evident everywhere, and it is ever and always growing. This can be seen in everything from ever-increasing taxes, to ever-growing debt, to ever-more regulations (leading to ever-reduced freedom).
It’s no wonder, then, that Americans are growing increasingly upset with the state of the nation in general, and the federal government in particular. As Levin explains, “the American people are extremely dissatisfied with the federal government. Nearly three-fourths view it unfavorably; only 28 percent favorably. Conversely, local and state governments are regarded more highly by large majorities, 63 percent and 57 percent, respectively” (loc. 2717).
Perhaps it is time for a change, then. Perhaps it is time that the power of the federal government were put in check—as the Constitution originally intended, and as was once the case.
4. What Can Be Done?
Levin certainly agrees, and he, for one, wants to lead the nation in this direction (loc. 260-65). How? For Levin, it’s going to take more than voting for the right people and enacting the right legislation. For Levin, the changes need to occur at the level of the Constitution itself—specifically, in the form of constitutional amendments. As the author explains, “I am all for the election of candidates and the confirmation of justices who are faithful to the Constitution. Obviously, the amendment process does not preclude such efforts. But let us acknowledge the infrequency of these occurrences and the greater rarity of fidelity by these officials, once ensconced in high office, to constitutional boundaries. In fact, even the most virtuous and resourceful among them do not and cannot possess the aptitude and muscle to penetrate the daunting entrenchment and institutionalized apparatuses of the federal government… This is a systemic problem that is bigger than any single federal election or administration” (loc. 2703).
And while amending the Constitution may seem like radical change, Levin insists that the impetus here is just the opposite. For the impetus is not so much to radically change the Constitution, but to return it to its original splendor and glory. As the author explains, “reacquainting ourselves with a legitimate constitutional remedy, which we, the people, cherish and our public officials swear to uphold, should not be perceived or dismissed as a radical deviation from normative principles but a prudent, rational, and civil response to their disembowelment… The Liberty Amendments are intended to restore the Framers’ work” (loc. 2689; see also loc. 27-30, 2739).
With that, let us now turn to Levin’s proposed Liberty Amendments…
PART II: THE LIBERTY AMENDMENTS
5. Amendment 1: An Amendment to Establish Term Limits for Members of Congress
When the Framer’s established the Constitution, they did so with the hope and expectation that no one person or small group of people in the federal government might be able to wield a large amount of power. Today, though, we have come to a point where many individuals—across all three branches of the federal government—have come to wield a large amount of power.
Take the members of Congress, for example. Many members of Congress—in both the House of Representatives and the Senate—have become career politicians; in the sense that they have been re-elected into their positions term after term. As an indication of this, consider that “in 2010, the year of a Republican tidal wave, 85 percent of incumbents from both parties were reelected. Three hundred ninety-seven members of the House of Representatives in the 111th Congress ran for reelection and 339 won… The Senate’s incumbent reelection rate was 84 percent. In 2008, the year Barack Obama was first elected president, the reelection percentage for House members was 94 percent. The Senate’s was down a hair to 83 percent. In fact, you can look at almost any congressional election cycle in the last two decades and find similar results” (loc. 278).
Now, on the hand, this may seem to be a very positive thing; for it appears to indicate that Americans are generally very happy with their representatives in Congress (and the fact that citizens are able to reelect representatives they like certainly seems to be a good thing [loc. 280]). The problem with having incumbents reelected over and over, though, is that the longer representatives spend in office, the more power they are able to garner. As Levin notes, “it is apparent that in Washington and most political capitals TIME in office = POWER” (loc. 304). Indeed, the fact that power builds-up over time is one of the main reasons why incumbents are so often successful in their (repeated) bids for reelection in the first place (loc. 288-92).
What’s even more concerning than that career Congress members build-up power over time, though, is how they end up using this power. For it has become the custom for members of Congress to pass laws that strengthen centralization and bloat government. As Levin explains, “part of the unsustainable growth of the federal government can be attributed to members of Congress treating federal spending, borrowing, and taxing as a personal prerogative used to award funds and assign legal rights to various political and electoral constituencies… The consequences of these and other practices addressed by The Liberty Amendments have been extremely detrimental to our society, as measured by, among other things, the ever-more-centralized and coercive power of the federal government, unsustainable fiscal and monetary policies, and myriad statutes and regulations issued by a maze of federal departments and agencies. The ultimate costs are borne by the individual in lost liberties and property” (loc. 300).
Thus Levin proposes to amend the Constitution such that members of Congress would be limited in how much time they could spend therein. Specifically, the limit would be 12 years—for both members of the House, and the Senate: “this proposed amendment limits the length of time an individual can serve in Congress to up to a total of twelve years, whether such service is exclusively in one House or combined in both Houses. Beyond that, an incumbent is ineligible to run again” (loc. 430).
6. Amendment 2: An Amendment to Restore the Senate
The Senate was originally established in order that it might act as a check on the main arm of the legislative branch of the government (meaning the House of Representatives) (loc. 485). In its original form, senators were chosen by the state legislatures. Specifically, “United States senators were usually selected by the legislatures of the various states, two from each state. They served for six years, with a third of the Senate up for state legislative reelection every two years” (loc. 471).
Part of the reason why this arrangement was chosen is because it would ensure that state governments would be given a direct hand in framing federal law. As Levin explains, “providing the state governments with direct input in the national government was not only an essential check on the new federal government’s power, but also a means by which the states could influence congressional lawmaking, without stripping the federal government of its enumerated primacy over certain matters of governance” (loc. 485; see also loc. 520-48, 561, 569-73, 595).
In other words, part of the rationale behind having the Senate chosen by the state legislatures (and not the citizens directly), was that this would ensure a balance of power between national interests and state interests—meaning the move was at least partly about preserving federalism (loc. 2013).
Still, another part of the rationale behind this measure was that it would provide a check against the passions and volatility of the common citizens. As Levin explains, “the Framers did, in fact, value democratic expression. For most of them, popular democracy was a vital aspect of consensual government. But they also understood that along with its benefits there were shortcomings, and the will of the people—subject to majoritarian and factional swings and lurches—should be balanced with dispassionate, considered judgment through a stable and diffused governing construct” (loc. 482).
This rationale was later attacked as being elitist and undemocratic, however, and this was in fact a big driver behind changing the way senators are chosen—which occurred under the 17th Amendment in 1913 (loc. 457-60, 624).
For Levin, though, the 17th Amendment was a grave mistake, for the end result has been not so much an empowerment of the common people over elites, but the empowerment of the federal government over the governments of the states (and also individuals). This is the case since senators are now much more influenced by their cronies in Washington than their constituents—and, of course, not at all by their state legislatures. As the author explains, “rather than spending time conferring with the elected state officials who would have sent them to Washington, D.C., and representing primarily state interests in the Senate, these senators now spend more time with, and are more beholden to, Washington lobbyists, campaign funders, national political consultants, and national advocacy organizations… state sovereignty is not a top priority for most senators because the state legislatures hold no sway over them. Therefore, situations arise where senators vote for major federal legislation over the strenuous objections of their own states” (loc. 641). Elsewhere, the author adds that “it is the state legislatures, acting together, that can buffer the individual from the relentless trespasses of the federal government and restore constitutional republicanism” (loc. 634).
The solution to this mess, Levin argues, is that the 17th Amendment should be struck down, and the original method of electing senators restored. For though this measure will certainly be attacked as being undemocratic by some, it is essential in order to restore a much-needed measure of federalism to the nation: “the proposed amendment repeals the Seventeenth Amendment, thereby re-establishing the Senate to the character intended originally by the Framers and set forth in the Constitution. As such, it returns Congress to a true bicameral institution; provides the states with direct input into federal lawmaking decisions in real time; decentralizes the influences on a senator from Washington D.C., to the states and local communities; and encourages a more rational, reflective, and collaborative legislating process” (loc. 660).
7. Amendment 3: An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override
The judicial branch, like the legislative one, is another branch of the federal government that has gained far too much power, and drifted far-too-far away from the intent of the Constitution.
For Levin, all of this began in the early 19th century, when Chief Justice John Marshall set an important precedent by ruling—in Marbury v. Madison—that the judiciary did in fact have the right to rule on the constitutionality of specific laws: “in his decision, Chief Justice John Marshall wrote, in part, ‘The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained’” (loc. 746).
Extravagant or not, what the ruling did was that it effectively placed an enormous amount of power in the hands of the judiciary, and ultimately the Supreme Court, to decide the nation’s laws (loc. 756, 774-797). Of course, this power is tempered by the fact that the Supreme Court is only supposed to strike down laws that it deems to run afoul of the Constitution. However, the process also leaves the Court open to interpret the Constitution—and thus it is a recipe for corruption and abuse. And, according to Levin, the Supreme Court has indeed abused its power here on many occasions.
For instance, in the notorious Dred Scott v. Sandford case in 1856, the Supreme Court stepped well outside of its constitutional bounds when it ruled that Congress did not, in fact, have the right to impose a ban on slavery (loc. 771). And, the author continues, “in addition to the Dred Scott decision, in which the Court perverted the Constitution to promote slavery, other notable examples include the 1896 Plessy v. Ferguson holding, where the court sanctioned racial segregation in public facilities under the doctrine of separate but equal; the 1944 Korematsu v. United States decision, where the Court gave license to the U.S. Army’s internment of tens of thousands of Japanese Americans without due process; and Roe v. Wade, the 1973 ruling in which the court legalized abortion throughout the nation with no constitutional basis” (loc. 896).
This is but the tip of the ice-berg, though, when it comes to the Supreme Court abusing the Constitution. And the worst part of it is that there is now a movement developing among some judiciary authorities that actively promotes interpreting the Constitution in as loose a way as possible in order to achieve certain political goals. As Levin explains, “a movement is and has been afoot in academia and in the courts to institutionalize within the Constitution, via the judiciary, social and economic agendas that should be left to the body politic. For example, Georgetown University law professor Robin West argues that ‘[w]e need… a progressive jurisprudence—a jurisprudence that embraces rather than resists, and then reinterprets, our liberal commitment to the ‘rule of law,’ the content of our individual rights, and the dream of formal equality. More inclusive interpretations—more generous reimaginings—could then undergird, and in a principled way, particular constitutional arguments. Rather than relentlessly buck, deconstruct, and vilify the seeming ‘naturalness’ of legal arguments based on moral premises, we ought to be providing such premises, and natural and general arguments of our own. But first we need to reimagine’” (loc. 806)
Meanwhile, other progressive judiciary authorities now recommend dismissing the Constitution outright when it comes to rendering Supreme Court decisions, and instead consulting other, international bodies of law (loc. 825-63).
Enough is enough says Levin. If the Supreme Court is to have the power to influence law-making through its right to throw out laws that it deems unconstitutional (or not)—a right that Thomas Jefferson himself saw as extremely contentions (loc. 754-65)—then this power needs to at least be met with a certain check-and-balance. Hence Levin proposes that Supreme Court decisions henceforth be subject to being overturned by a supermajority in either the federal legislature, or among the state legislatures. And while we’re on the topic of curbing the power of the judiciary, the author throws in that it’s not a bad idea that term limits be set on Supreme Court justices as well.
Here is Levin’s proposed amendment in his own words: “the proposed amendment seeks to return the Court to its proper foundational role within a republican system of government. It does the following: 1) ends the lifetime term of justices and replaces it with a single twelve-year term of office with no possibility of renomination or a second term; 2) grants Congress the authority to overturn a Supreme Court decision by a three-fifths vote of the House and Senate; and 3) grants the states authority to overturn a Supreme Court decision if three-fifths of the state legislatures pass resolutions doing so” (loc. 933).
8. Amendment 4: An Amendment to Limit Federal Spending
As touched upon previously, the federal government currently holds an astronomical and ever-growing debt. As Levin notes, “the total federal debt resulting solely from spending on fiscal operations as a percentage of GDP has increased dramatically since 2002. In 2002, this debt as a percentage of GDP was 58.8 percent. By 2008, it rose to 69.7 percent. In 2009, it jumped to 85.3 percent. In 2010 and 2011, debt as a percentage of GDP was 94.2 percent and 98.7 percent respectively. For 2012, federal debt was 104.8 percent of GDP. Consequently, the federal debt is now larger than the entire annual value of all the goods and services produced by the nation’s private sector… In 2012, as a result of this massive debt, every taxpayer was on the hook for $110,000, while the average income was about $51,000. And by 2022, the debt from fiscal operating expenses is estimated to exceed $25 trillion” (loc. 1070).
And these numbers do not take into account the government’s unfunded liabilities—of which Social Security and Medicare are the two most costly (loc. 1061-66). When these unfunded liabilities are taken into account, we get the following numbers: “total obligations by the federal government—that is, the accumulated debt from yearly fiscal operations plus the net present value of all unfunded liabilities—amounted to over $90 trillion in 2012. Moreover, the real yearly deficits, adding together all debt and liabilities, in 2011 and 2012 were about $4.6 trillion and 6.9 trillion, respectively!” (loc. 1070).
Already, the interest payments on this debt are substantial, causing a draw on citizens’ incomes and a drag on the country’s economy. And as the debt continues to grow, these effects will only deepen. As the author explains, the Congressional Budget Office (CBO) “’projects that the government’s yearly net interest spending will more than triple between 2011 and 2021 (from $225 billion to $792 billion) and double as a share of GDP (from 1.5 percent to 3.3 percent).’ According to the CBO, ‘large budget deficits and growing debt would reduce national savings, leading to higher interest rates, more borrowing from abroad, and less domestic investment—which in turn would lower the growth of incomes in the United States” (loc. 1063).
In order to keep up with the growing interest payments, it appears as though the American government will either have to increase taxes greatly, or practice even more quantitative easing (print more money) than it already has been (loc. 142-157, 1095-98). Both practices threaten to cripple the American economy (the former through eroding consumer demand, and the latter through inflation) (loc. 147, 1063, 1106). Thus Levin concludes that “the nation is facing eventual economic collapse” (loc. 1084).
Something needs to be done, and Congress cannot be trusted to act. Why not? Part of this has to do with the fact that many Congress members care more about their favorite paternalistic programs and policies (which cost a lot of money) than they do about the future consequences of the debt. But part of it is also systemic to how Congress operates. As Milton Friedman put it, ‘it is not in the interest of a legislator to vote against a particular appropriation bill if that vote would create strong enemies while a vote in its favor would alienate few supporters’” (loc. 1002). In other words, spending is easy (and highly conducive to political gain), while restraint is difficult (and doesn’t win you many political brownie points). What this means is that political forces will always tilt towards more spending, and it is for this reason that Congress cannot be trusted to rein in its debt on its own (loc. 1005).
Hence Levin proposes a more fundamental measure: an amendment to the constitution. It runs thus: “four years following ratification of the proposed Spending Amendment, Congress must adopt a final, annual fiscal year budget prior to the start of each fiscal year; keep spending at or under 17.5 percent of the gross domestic product (GDP) each fiscal year, requiring Congress and the executive branch to prioritize appropriations; and balance the federal budget each fiscal year (with a proviso for emergencies), thereby starting to limit the hemorrhaging of spending and debt accumulation passed from one generation to the next” (loc. 1029).
This amendment would not only help address the debt issue, but would also put a substantial brake on the federal government’s ability to interfere with matters that ought really to be left to the states, local governments, and individuals themselves (since the government would no longer be able to run up the debt needed to pay for these intrusions). Thus two birds with one stone.
9. Amendment 5: An Amendment to Limit Taxation
Of course, the federal government might still be tempted to fund its favorite paternalistic programs and policies through increased taxes (which is yet another intrusion on citizens’ lives), and thus this is another issue that must be addressed (loc. 1121).
Even with the federal government perfectly happy to run up the debt, it has nevertheless avoided at least some of this debt by increasing taxes over the years. The numbers with regards to income taxes, for example, are as follows: “the original federal income tax rates in 1913 were, in inflation-adjusted brackets, as follows: 1 percent for incomes up to $463,826; 2 percent for incomes between $463,826 to $1,159,566; 3 percent for incomes between $1,159,566 to $1,739,348; 4 percent for incomes between $1,739,348 to $2,319,131; 5 percent for incomes between $2,319,131 to $5,797,828; 6 percent for incomes between $5,797,828 to $11,595,657; and 7 percent for incomes over $11,595,657” (loc. 1207).
Today, by contrast, income taxes have gone up markedly—and particularly for the highest income earners. As Levin notes, “in 2009, for individuals in the 40-60 percent range, the average income tax was 1.3 percent, while those in the 60-80 percent range had an average income tax rate of 4.6 percent. The top 20 percent of earners paid, on average, a 13.4 percent income tax rate, while the top 1 percent paid on average 21 percent” (loc. 1215).
And with the debt situation as it is, these numbers promise to be on the rise sooner rather than later. As Levin explains, “the current spending trend makes certain an immense tax increase on the vast majority of income-earning Americans, despite the overall inconsequence of taxation on bringing down the aggregate debt. There is already talk of a VAT, which is an enormous, hidden sales tax levied at every level of production and service and drives up prices to the consumer; overhauling the over $3 trillion 401(k) retirement system, including the elimination of nearly $80 billion in deferred taxation; reducing or eliminating the home mortgage interest deduction; and reducing or eliminating charitable deductions” (loc. 1236).
Now, as you will have noted from the quotation above, the income tax was only implemented in 1913. Other income taxes had existed before this time, but on each occasion they had ultimately been rescinded—or struck down on account of being unconstitutional (loc. 1188-96). The reason for this is that there was a great deal of controversy at the time about just how much power the federal government should have to tax the people, and the Framers of the constitution had in fact deliberately tried to limit just how much power the government had in this regard (loc. 1121-48).
The worry was that the federal government would ultimately end up using its power to tax the people to become despotic (as Great Britain had done not so long before [loc. 1153]). As Levin explains, “many predicted that the federal government’s taxing authority, combined with its power to provide for the ‘general welfare,’ might lead eventually to an unbridled, all-powerful national government, dominating the states and the individual” (loc. 1121; see also 1125-66, 1185-88).
Looking back, it appears the Framers had a right to be concerned; for, according to Levin, the federal government has indeed become despotic in its role as tax collector (and in the way it uses these tax proceeds to fund overweening programs and policies that infringe on the freedom of states and individuals) (loc. 1254-72).
Hence Levin’s proposed constitutional amendment. It is as follows: “the proposed Tax Amendment would set a ceiling for income earners at 15 percent. It provides a degree of flexibility by allowing Congress to institute a flat tax lower than 15 percent or additional income-based tax rates below the 15 percent cap. Thus individuals at lower income levels, such as those who work part-time, students with summer jobs, adults in low-skilled jobs, retired senior citizens, etc., would pay less in taxes in absolute dollars and/or be subject to lower tax rates. The proposed Amendment eliminates all forms of double taxation, including the so-called inheritance or death tax (a tax on estates often passed from parents and grandparents to their off-spring); taxes on investment income (which promotes wealth creation and economic growth); and taxes on corporations (which reduce research, capital expansion, and job creation). In most cases, these taxes have been layered upon income taxes already paid by people” (loc. 1291).
10. Amendment 6: An Amendment to Limit the Federal Bureaucracy
When the Framers established the Constitution they were very particular in assigning the law-making authority to one specific branch of the government: the legislative branch (loc. 1324, 1331). What’s more, they went out of their way to ensure that this responsibility on the part of the legislative branch should not be delegated to any other body or person—particularly one from another branch of the government (loc.1327, 1339). This was necessary, it was thought, in order to preserve the separation of powers—which practice, Levin points out, “is designed to ensure that no single body becomes too powerful and thus rules tyrannically over the others, the states, and the people” (loc. 1327).
Over the years, though, Congress has, at various times, indulged in passing laws that grant a great deal of authority to the federal bureaucracy (which is controlled by the executive branch) when it comes to implementing the laws. The bureaucracy has been given so much authority, in fact, that it often acts, for all intents and purposes, as a law-making entity in its own right. Indeed, as Levin argues, “it is now commonplace for… the executive branch to legislate by regulation and executive order… Departments and agencies created by Congress are attached to the executive branch and exercise lawmaking power that is both delegated and not delegated by Congress. And their myriad regulations and rules have the force of law, including criminal and civil penalties” (loc. 1403).
What’s more, these rules and regulations are in no sense small in size and scope. Quite the contrary. As Levin explains, “the modern administrative state has power, resources, and tentacles that boggle the mind. For example, in 2008, the Small Business Administration estimated that annual regulatory compliance costs amounted to $1.752 trillion. In 2012, the Obama administration issued new regulations costing $236 billion. New EPA regulations alone resulted in $172 billion in regulatory costs. The 2012 Federal Register, the official federal publication documenting administrative rules and proposed rules, exceeded 77,000 pages… In 2012, the bureaucracy reportedly issued 212 ‘economically significant’ federal rules, each projected to impose more than $100 million in economic costs. In the last ten years, the issuance of economically significant rules has increased 108 percent” (loc. 1422).
In addition, it is increasingly commonplace for these (very extensive and expensive) rules and regulations to impinge on matters that ought rightly to be left to the states (and individuals) (loc. 1430; see also loc. 1382-95).
For Levin, this whole phenomenon really began with the Franklin Roosevelt administration in the late 1930s and early 1940s. As the author explains, “in the 1930s and 1940s, President Franklin Roosevelt launched the New Deal, in which Congress passed laws creating federal agencies and delegating power to them to regulate vast segments of the economy and daily life, in many instances bypassing or supplanting state lawmaking authority” (loc. 1381).
Now, many of the programs under the New Deal were initially struck down by the Supreme Court—on account of the fact that they did in fact infringe on state rights (loc. 1381-85). However, Roosevelt was eventually able to stack the Court with justices that were more amenable to his ideals, and thus much of his New Deal ultimately came to be implemented (loc. 1385-95).
Since that time, both Congress and the judiciary have seemed increasingly uninterested in challenging the power that the bureaucracy is given (loc. 1406, 1449, 1468-80). The end result of all this is that the executive branch of government now has more power than it was ever intended to. What’s more, as we have seen, this power is all-too-often being used to trample the liberty of states and individuals, and is contributing directly to the bloat of government (Levin points specifically to the enormous power given to the bureaucracy under the Affordable Care Act [Obamacare] and the Dodd-Frank Wall Street Reform and Consumer Protection Act as being prime examples of everything that is wrong here [loc. 1499-1539]).
Clearly, says Levin, the bureaucracy is out of control, and something needs to be done to rein it in. What Levin recommends is that, first, all bureaucratic departments and agencies should be put up for review every 3 years (at which time they will expire, unless they are expressly renewed); and that, second, a new committee of Congress should be formed to oversee the actions of the bureaucracy (with the power to curb its actions).
Here is Levin explaining his proposed constitutional amendment: “the proposed amendment eschews the issue of delegation per se, the total reversal of which would seem impossible at this point, but importantly, it returns final decision-making authority respecting laws (regulations and rules) with significant economic impact to Congress, thereby restoring a critical element of separation of power under the Constitution and reinvigorating representative government. The proposed amendment sunsets every executive federal department and agency and obligates Congress to determine the efficacy of each entity every three years. It also establishes a permanent joint committee, which makes final determinations respecting the most economically costly federal regulations [those exceeding $ 100 million]” (loc. 1550).
11. Amendment 7: An Amendment to Promote Free Enterprise
When the framers drafted the constitution they intended for the federal government to be able to involve itself in business and commerce only in a very limited way. Specifically, they intended the federal government to involve itself only in trade; and, in particular, that trade that occurred between the states, or with foreign countries (or the natives). Accordingly, “the Constitution’s Commerce Clause states that Congress shall have the power ‘[t]o regulate commerce with foreign nations, and among the several States, and with the Indian Tribes” (loc. 1563) (and commerce here refers specifically to ‘trade’ and no other kind of economic activity [loc. 1568-1622]).
The idea was that the federal government would be needed to adjudicate the trade wars between the various states (which, at the time, were many and highly deleterious), and between the United States and other nations; and that all other economic matters could and should be left to the states themselves (loc.1568-1651, 1695). As the Constitutional scholar Raoul Berger has written, “[Thomas] Jefferson accurately reflected the Founders’ views when he stated in 1791 that ‘the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a state… which remains exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another state, or with foreign nations…’” (loc. 1591; see also 1677).
Now, until the 1930s, the federal government did very much stick to its mandate here (loc. 1680). When the administration of Franklin Roosevelt came along, though, all of this changed. Indeed, in Roosevelt’s New Deal, many provisions called for intrusions into economic matters that had nothing to do with extra-state trade (loc. 1698-1720).
Of course, in the beginning, the Supreme Court agreed that many provisions of the New Deal did in fact violate the Commerce Clause. As Levin explains, “in 1934, Congress passed the Railroad Retirement Act, which established compulsory retirement plans for railroad workers. The Court invalidated it in 1935 because Congress had not constitutional authority to regulate a business relationship between employer and employee… Thereafter, the court struck down sections of the National Industrial Recovery Act of 1933 in the Schechter Poultry or ‘sick chicken’ case, holding that the Commerce Clause did not empower Congress to enact a law setting wages and hours of poultry workers in Brooklyn, New York… In 1936, the Court ruled that another New Deal law, the Bituminous Coal Conservation Act was unconstitutional. The act created a national coal commission, as well as coal districts, and fixed coal prices, wages, hours, and working conditions of miners throughout the country” (loc. 1713).
However, Roosevelt was persistent, and (as mentioned in the previous section) set about stacking the Supreme Court with justices who were more amenable to his political views (loc. 1720). It worked. Specifically, in the Wickard v. Filburn case of 1942, the revamped Court now ruled that any activity that could be seen as even remotely connected to interstate trade (meaning pretty much anything) was in the purview of the federal government (loc. 1742).
Thus a new precedent was set, and this precedent has held sway to the present day. As Levin explains, “for the last seventy years, since the Wickard decision, Congress has passed laws and federal departments and agencies have issued regulations affecting all manner of economic activity. Rather than promoting private commerce and trade without barriers between and among the states, which was the indisputable rationale for the Commerce clause, the federal government now intervenes in private economic activity, and stomps on state sovereignty, at every turn” (loc. 1747).
And the Court has largely stayed out of the way—but for the few rare instances (2 in fact), when the federal government has failed to show even a faint connection between the activity it intended to regulate, and extra-state trade (loc. 1763).
Thus what we need, Levin argues, is an amendment to take us back to the original intent of the constitution. Essentially, we need an amendment to remind us of what the Constitution actually says. Here is that reminder-amendment: “Congress’s power to regulate Commerce is not a plenary grant of power to the federal government to regulate and control economic activity but a specific grant of power limited to preventing states from impeding commerce and trade between and among the several States… Congress’s power to regulate Commerce does not extend to activity within a state, whether or not it affects interstate commerce; nor does it extend to compelling an individual or entity to participate in commerce or trade” (loc. 1563) (if this last clause reminds you of a certain health care bill, then you get the idea [loc. 1812-23]).
12. Amendment 8: An Amendment to Protect Private Property
The right to own and maintain private property was recognized by the Framers as being one of the most fundamental principles of a truly civil society (loc. 1840, 1880). Accordingly, “James Madison noted, ‘Government is instituted no less for protection of property than of the persons, of individuals.’” (loc. 1855). And George Mason added that “all men are by nature equally free and independent and have certain inherent rights… namely the enjoyment of life and liberty, with the means of acquiring and possessing property…’” (loc. 1864).
As we might expect, then, the Framers were sure to ensconce the right to property in the Constitution—and this included provisions meant to prevent the government from unfairly interfering with this property. As Levin explains, “given the primacy of property rights, the Framers insisted that certain safeguards must be incorporated in the Constitution to protect against excessive government intrusion. Therefore, as part of the Bill of Rights, the Fifth Amendment provides explicitly, ‘… nor shall private property be taken for public use without just compensation.’” (loc. 1885).
The amendment is simple enough, for it stipulates that any taking of private property on the part of the government (for any reason whatsoever) must be met with due compensation. However, some controversy has developed over the years concerning just what a ‘taking’ consists in. Specifically, some have argued that a taking should be interpreted as meaning not just a physical usurpation of private property, but also regulatory activity that results in the devaluation of said property (loc. 1888-95).
The rationale here is that a government action that diminishes property value is tantamount to a taking, and that, therefore, the two should be treated as one and the same. As Levin explains, “these ‘regulatory takings,’ as they are called, are often indistinguishable from actual, physical takings. These types of governmental actions may not constitute an actual physical appropriation of property. Instead, they impose significant restrictions on the owners’ use of the property. Consequently, the property owner can suffer severe economic damages should the restriction prevent the economic development or private use of the property” (loc. 1895).
The Supreme Court has in fact agreed that a government regulation can be considered a taking. For example, “in 1922, Associate Justice Oliver Wendell Holmes Jr. first recognized a regulatory taking in Pennsylvania Coal v. Mahon. He wrote, ‘[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking’” (loc. 1902).
Of course, the ruling left it open for future justices to interpret just what ‘too far’ means; and since that time the Court has generally ruled that ‘too far’ means ‘all the way’. That is, the Court has generally ruled that a regulation may only be considered a taking when it destroys the value of a certain piece of property entirely (loc. 1914-24). For example, “in 1992, in Lucas v. South Carolina Coastal Council, even Associate Jusitce Antonin Scalia indicated that a regulation devaluing a property of 95 percent of its value may not constitute a taking and the property owner would not necessarily be eligible for compensation” (loc. 1914).
Moreover, the Court has taken to parsing regulations into different categories, and recognizing only certain types of regulations as potentially constituting a taking. For example, “in 2005, in Lingle v. Chevron U.S.A. Inc., the Court said it would also consider the ‘character of the governmental action… whether [the regulatory taking] amounts to a physical invasion or instead merely affects property interests “through some public program”’” (loc. 1919).
For Levin, though, interpreting the law in these ways is really very foolhardy, for the interpretations fail to do justice to the importance of the right to property. As the author puts it, “these tortured rationales… discount a seminal and underlying principle of property rights—that is, the right to own and control one’s property is a natural, fundamental right that should receive the highest level of legal protection” (loc. 1924). The fact is that government regulations of various kinds have increasingly infringed on property values (loc. 1942), and the practice is an intrusion on property rights that is far removed from what the Framers intended and hoped for (loc. 1924, 1948).
Thus here is Levin’s proposed amendment: “when any governmental entity acts not to secure a private property right against actions that injure property owners, but to take property for a public use from a property owner by actual seizure or through regulation, which taking results in a market value reduction of the property, interference with the use of the property, or a financial loss to the property owner exceeding $10,000, the government shall compensate fully said property owner for such losses” (loc. 1839).
13. Amendment 9: An Amendment to Grant the States Authority to Check Congress
For a nation to be truly democratic, it is necessary for potential legislation to undergo serious debate and be open to public scrutiny. As things currently stand in Washington, though, Congress often passes bills with little debate and even less opportunity for public scrutiny. Let us consider a couple of examples: one from either side of the political spectrum.
First up, Obamacare. As Levin explains, “on March 22, 2010, the house of Representatives barely passed the nearly three-thousand-page-long Obamacare law, by a margin of 219-212 (without a single Republican vote). As with the initial adoption of Social Security and Medicare, there was no great clamor for Obamacare. Moreover, the final version had not been made available to the public until shortly before it was voted on in the House” (loc. 2307). What this meant is that the public had very little time to review the document and make their concerns heard before the bill was passed into law; and in a supposedly democratic nation, this is simply unacceptable (loc. 2307).
3 years later and the make-up of the House of Representatives had shifted, but the abuse of democracy stayed the same. As Levin explains, “recently, Congress passed the Violence Against Women Reauthorization Act of 2013 (VAWA). Congress is in the habit of titling bills in such a way as to make difficult legitimate opposition to their adoption. The VAWA is such a bill. This law was passed in the Republican-controlled House with virtually no debate, and without the ability of a member to offer an amendment. Despite its title, the law is deeply flawed, as numerous commentators have noted, and raises serious doubts about its constitutionality in several respects, including the fundamental right to free speech and due process” (loc. 2350). Still, because the bill was pushed through with virtually no debate, there was no opportunity to raise these concerns—and thus once again true democracy was pushed to the side (loc. 2345-61).
In addition, the bills that Congress is passing into law (with little to no debate) very often infringe on matters that ought rightly to be left to the states (loc. 2312, 2353-61). Indeed, Levin argues that both Obamacare and the VAWA (among many other bills) vastly overstep the federal government’s legitimate domain (loc. 2285-89, 2315, 2358).
For Levin, something must be done to curb these all-too-routine abuses on the part of Congress. Specifically, the public must be given a reasonable opportunity to review bills before they are passed (unless they have the support of a supermajority in Congress), and the states must be given an opportunity to review, and reject federal bills (with a supermajority). Here are the details: “the proposed amendment requires a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final passage by both houses of Congress. The purpose is to ensure that members of Congress, state officials, and the citizenry are aware of legislative actions before they become law. It also provides for speedier legislative action if agreed to by two-thirds of the members of each house of Congress. In addition, the proposed amendment empowers the states, by a three-fifths supermajority vote, to override a federal statute or regulation (which regulation imposes an economic burden of $100 million or more), within a two-year period from the date of its legal implementation” (loc. 2395).
14. Amendment 10: An Amendment to Protect the Vote
Free and fair elections are a fundamental aspect of any properly functioning democracy. In America, though, the fair part of this equation is being challenged by widespread voting irregularities and outright voter fraud. As Levin explains, “in their book Who’s Counting? How Fraudsters and Bureaucrats Put your Vote at Risk, election experts John Fund and Hans von Spakovsky supply numerous examples of pervasive problems in both the registration process and voter integrity throughout the nation. They fall into two broad categories—noncitizen voter registration and voting as well as voter fraud, combined with refusal of federal officials to enforce the law. Fund and von Spakovsky, among others, have demonstrated that aliens, both legal and illegal, are registering and voting in federal, state, and local elections” (loc. 2606).
Just consider the following numbers: “according to a 2012 analysis by the Pew Center on the States, there are more than 1.8 m