Thursday, December 05, 2013

Debating Liberty Amendments (by Mark Levin)

Welcome to Tony Island blog!

Mark Levin's latest book, The Liberty Amendments: Restoring the American Republic , proposes and discusses 10 Constitutional amendments that Levin believes will restore a more balanced constitutional republic. Each chapter opens with the proposed amendment and then goes on to discuss the merits of the amendment, including historical facts to bolster his case. I assume that Levin would want these to be added to the Constitution as written, but he could also be setting them out as discussion points. While I disagree with his amendments (see below), I do strongly recommend the book for the historical and contemporary information used to discuss the proposed amendments.

I want to take a moment and remind our readers that any tinkering with the Constitution is fraught with peril. One only needs look at the Prohibition mess and react with horror anytime an amendment is proposed.

Let's take a look at each amendment (briefly) and why I do or don't think it should be part of the Constitution.

1) Term Limits - disagree - the first amendment proposal is a 12 year term limit for Congressmen. This seems to be a favorite of conservatives (and perhaps progressives, too). Whenever something doesn't go their way, political talking heads immediately resort to term limits as though limiting one particular person will rid Congress of a particular "roadblock" or other obstruction to getting the people's work done. Does anyone stop to think that the next guy running in place of a termed out Congressman may be even worse (either further to the Left or further to the Right)? While I can see some merit to term limiting the President, look at the generally disastrous results we've gotten since that amendment was passed over 60 years ago. The second administration of each President since passage has basically been a disaster, from Nixon's Watergate to Reagan's Contra affair to Clinton's sexual dalliances to Obama's health care rollout fiasco. The voters will naturally cleanse themselves of poor choices over time. Yes, there will be entrenched Congressmen, but at least they will always be answerable to the people if they have to face re-election every few years. Make them lame ducks and I think the situation will only be worse. A far better idea, in my opinion, is to increase the size of the House to at least double the current number of Members. This will have the affect of decreasing the influence of money and allow a broader set of voices (ie, political parties) to be heard.

2) Restore State Legislatures choosing Senators - agree - the second proposed amendment is to basically repeal the 17th Amendment and add a few features to ensure each state is properly represented in the Senate (apparently there were short periods in the past when states didn't have representation in the Senate - check the book for the history behind the 17th amendment).
 I can certainly agree and support this amendment. It's time to go back to basics with this one. We always talk about all the money being sloshed about in political campaigns. Let's get rid of the popular vote for Senator and allow the state Legislatures to choose 2 Senators. Senators will be more in line with their states' wishes instead of their parties' wishes.

3) Term Limits for SCOTUS and Congressional override of SCOTUS decisions - disagree - This third proposal is a complicated one of splitting the SCOTUS into three classes based on years of service and then term limiting the Justices to a 12 year term. Another part of the amendment allows Congress to overturn a SCOTUS decision with 3/5s of each House supporting an override. I feel this is just overly complicated and reactionary. It's a conservative's dream to believe that if such an amendment had been in place, then the abortion decision by the SCOTUS (or perhaps the Obamacare one) would have been overturned by Congress. It's a pipe dream. Having Congress vote in the heat of emotion after a SCOTUS is just bad governing. We see this all the time when we are attacked (ie, 9/11) or similar situation. We need to step back, read the decision, think about it, then take action. I don't necessarily disagree that SCOTUS has run amuck with its powers and perhaps needs to see some revisions in the way it works, but I don't think this amendment is the one to do that.

4) Two amendments to limit taxing/spending - disagree - This set of amendments basically calls for a balanced budget and taxing limits. My personal belief is that the Constitution should contain one of two kinds of amendments - either granting the people MORE freedoms or limiting the government's ability to restrict said freedoms. I generally don't like "economic" amendments being added to the Constitution. There are slimy ways around these kinds of amendments and even if they were "ironclad" what would happen if Congress and the President openly disregarded their provisions? Why put into writing something that basically has no teeth? Ironically, I do believe in the "line item" veto amendment. I know there are some caveats to that idea too so I wouldn't strongly advocate it until I've read enough about it, but in general granting a line item veto to the President is something I support.

5) Limit the Federal bureaucracy - disagree - there are basically two parts here - re-authorize each bureaucracy every 3 years and any regulation that results in an economic burden of $100 million or more needs to be approved by a new standing committee of Congress. Again, this is an "economic" amendment so I don't support it on face value. Of course the GAO and CBO (these two bodies would have to certify the economic burden of each new regulation) will bend to political pressure and make sure that any regulation the President's team wants comes in under the magic $100MM mark. What happens if one agency says it's over $100MM and the other says it's under? Does it go to committee? What if both agencies says it's well under and then when the regulation takes effect we find out it's well over?? It's a silly amendment that has no teeth. More conservative wishful thinking.

6) Promote Free Enterprise - possibly - this short amendment basically limits Congress in its ability to over broadly legislate using the Commerce clause as an excuse to do so as it has in the past. I like the idea behind the amendment, but just like Congress has repeatedly abused the Commerce clause, this amendment will be twisted and turned by SCOTUS decisions and render it useless. It's a worthy effort though.

7) Protect Private Property - possibly - this short amendment basically wants government to compensate property owners if government action causes the property owner to lose $10,000 or more in property value. Again, nice on the surface but wishy washy underneath. SCOTUS basically scuttled the eminent domain clause of the Constitution - what's to say they wouldn't do it here? And why not make the damages threshold $1 or more?

8) Grant States Authority to Amend the Constitution - disagree - this amendment would allow States to pass a Constitutional amendment then forward that amendment on to the other states to ratify it (instead of having to go thru Congress as the Constitution requires). There are many Constitutional amendments that are submitted by Congressmen every year. It seems most never see the light of day for whatever reason. Imagine 50 states passing tens of Amendments every year and passing them on to other states for ratification? Ugh. It would be a mess and get us no where. Or we'd have 10, 20 amendments to the Constitution every year. Crazy stuff. Best not to think about it. This one is a political nightmare and stinker.

9) Grant States Authority to Check Congress - disagree - this amendment basically formalizes the idea of "nullification" of Federal laws by the states. Apparently Levin believes that state legislatures have no other work to do than vote on overriding Federal laws. This one and the above amendment are just too much to ask of the individual state legislatures. They have their own pressing needs to address. Let's not burden them with more matters that are best left to the Federal politicians who we vote for and send to D.C.

10) Amendment to Protect the Vote - possibly - this amendment covers two things related to voting - photo IDs and the time to vote. On the time issue, Levin makes a good point that too many people are voting by mail at odd times thus creating a haphazard voting system. For example, some people may vote for a candidate after seeing a debate or some such public forum while others who wait for national election day vote (presumably) with full knowledge of the candidate's campaign behavior and positions. I think having a set standard voting for national elections is prudent (ie either no early voting or a limited early voting window closer to election day). The photo ID part of the amendment is on thinner ground. I do support having to show a proper photo ID before being allowed to vote, but I don't think we need a Constitutional amendment for this. We want amendments that can last for a hundred years or more (think "Bill of Rights"). We have no idea what kinds of technology can be used in the future to correctly identify someone before he/she votes. Why limit ourselves to photo IDs? We need to have a national conversation about "the vote" and then come to conclusions and satisfactory methods of implementing those conclusions. Until then, we can run around in 20 different directions and make no difference between the "before" and "after" concerning voter fraud.

So there you have it - Levin's proposed amendments and my counterpoints. I consider myself a Libertarian conservative for the most part. I understand where Levin is coming from, but I think some of these ideas are half-baked solutions to symptoms not problems. Conservatives (like progressives) believe that if you tinker a little here and tinker a little there, you'll get the right balance and surely the "right" solutions will bubble to the surface - that is, we'll get SCOTUS justices that hew the line on the Constitution, term limited Congressmen will be elected that only serve the public interest and right on down the line. I think we need to do lots more than that. We need to shrink government, get a robust private sector moving again and generally adhere to the founding principals and ideas put forth from the Declaration of Independence to the Constitution (including ancillary publications such as the Federalist Papers).

What do you think? Comment below!

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