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Monday, August 26, 2013

Reading List: The Liberty Amendments

Levin, Mark R. The Liberty Amendments. New York: Threshold Editions, 2013. ISBN 978-1-4516-0627-0.
To many observers including this one, the United States appear to be in a death spiral, guided by an entrenched ruling class toward a future where the only question is whether a financial collapse will pauperise the citizenry before or after they are delivered into tyranny. Almost all of the usual remedies seem to have been exhausted. Both of the major political parties are firmly in the control of the ruling class who defend the status quo, and these parties so control access to the ballot, media, and campaign funding that any attempt to mount a third party challenge appears futile. Indeed, the last time a candidate from a new party won the presidency was in 1860, and that was because the Whig party was in rapid decline and the Democrat vote was split two ways.

In this book Levin argues that the time is past when a solution could be sought in electing the right people to offices in Washington and hoping they would appoint judges and executive department heads who would respect the constitution. The ruling class, which now almost completely controls the parties, has the tools to block any effective challenge from outside their ranks, and even on the rare occasion an outsider is elected, the entrenched administrative state and judiciary will continue to defy the constitution, legislating from within the executive and judicial branches. What does a written constitution mean when five lawyers, appointed for life, can decide what it means, with their decision not subject to appeal by any other branch of government?

If a solution cannot be found by electing better people to offices in Washington then, as Lenin asked, “What is to be done?” Levin argues that the framers of the constitution (in particular George Mason) anticipated precisely the present situation and, in the final days of the constitutional convention in Philadelphia, added text to Article Five providing that the constitution can be amended when:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,…

Of the 27 amendments adopted so far, all have been proposed by Congress—the state convention mechanism has never been used (although in some cases Congress proposed an amendment to preempt a convention when one appeared likely). As Levin observes, the state convention process completely bypasses Washington: a convention is called by the legislatures of two thirds of the states, and amendments it proposes are adopted if ratified by three quarters of the states. Congress, the president, and the federal judiciary are completely out of the loop.

Levin proposes 11 amendments, all of which he argues are consistent with the views of the framers of the constitution and, in some cases, restore constitutional provisions which have been bypassed by clever judges, legislators, and bureaucrats. The amendments include term limits for all federal offices (including the Supreme Court); repeal of the direct election of senators and a return to their being chosen by state legislatures; super-majority overrides of Supreme Court decisions, congressional legislation, and executive branch regulations; restrictions on the taxing and spending powers (including requiring a balanced budget); reining in expansive interpretation of the commerce clause; requiring compensation for takings of private property; provisions to guard against voter fraud; and making it easier for the states to amend the constitution.

In evaluating Levin's plan, the following questions arise:

  1. Is amending the constitution by the state convention route politically achievable?
  2. Will the proposed amendments re-balance the federal system sufficiently to solve (or at least make it possible to begin to solve) its current problems?
  3. Are there problems requiring constitutional change not addressed by the proposed amendments?
  4. Will leviathan be able to wiggle out of the new constitutional straitjacket (or ignore its constraints with impunity) as it has done with the existing constitution?

I will address each of these questions below. Some these matters will take us pretty deep into the weeds, and you may not completely understand the discussion without having read the book (which, of course, I heartily recommend you do).

Is amending the constitution by the state convention route politically achievable?

Today, the answer to this is no. Calling a convention to propose amendments requires requests by two thirds of state legislatures, or at least 34. Let us assume none of the 17 Democrat-controlled legislatures would vote to call a convention. That leaves 27 Republican-controlled legislatures, 5 split (one house Republican, one Democrat), and quirky Nebraska, whose legislature is officially non-partisan. Even if all of these voted for the convention, you're still one state short. But it's unlikely any of the 5 split houses would vote for a convention, and even in the 27 Republican-controlled legislatures there will be a substantial number of legislators sufficiently wedded to the establishment or fearful of loss of federal funds propping up their state's budget that they'd vote against the convention.

The author forthrightly acknowledges this, and states clearly that this is a long-term process which may take decades to accomplish. In fact, since three quarters of the states must vote to ratify amendments adopted by a convention, it wouldn't make sense to call one until there was some confidence 38 or more states would vote to adopt them. In today's environment, obtaining that kind of super-majority seems entirely out of reach.

But circumstances can change. Any attempt to re-balance the constitutional system to address the current dysfunction is racing against financial collapse at the state and federal level and societal collapse due to loss of legitimacy of the state in the eyes of its subjects, a decreasing minority of whom believe it has the “consent of the governed”. As states go bankrupt, pension obligations are defaulted upon, essential services are curtailed, and attempts to extract ever more from productive citizens through taxes, fees, regulations, depreciation of the currency, and eventually confiscation of retirement savings, the electorate in “blue” states may shift toward a re-balancing of a clearly dysfunctional and failing system.

Perhaps the question to ask is not whether this approach is feasible at present or may be at some point in the future, but rather whether any alternative plan has any hope of working.

Will the proposed amendments re-balance the federal system sufficiently to solve (or at least make it possible to begin to solve) its current problems?

It seems to me that a constitution with these amendments adopted will be far superior in terms of balance than the constitution in effect today. I say “in effect” because the constitution as intended by the framers has been so distorted and in some cases ignored that the text has little to do with how the federal government actually operates. These amendments are intended in large part to restore the original intent of the framers.

As an engineer, I am very much aware of the need for stable systems to incorporate negative feedback: when things veer off course, there needs to be a restoring force exerted in the opposite direction to steer back to the desired bearing. Many of these amendments create negative feedback mechanisms to correct excesses the framers did not anticipate. The congressional and state overrides of Supreme Court decisions and regulations provide a check on the making of law by judges and bureaucrats which were never anticipated in the original constitution. The spending and taxing amendments constrain profligate spending, runaway growth of debt, and an ever-growing tax burden on the productive sector.

I have a number of quibbles with the details and drafting of these amendments. I'm not much worried about these matters, since I'm sure that before they are presented to the states in final form for ratification they will be scrutinised in detail by eminent constitutional law scholars parsing every word for how it might be (mis)interpreted by mischievous judges. Still, here's what I noted in reading the amendments.

Some of the amendments write into the constitution matters which were left to statute in the original document. The spending amendment fixes the start of the fiscal year and cites the “Nation's gross domestic product” (defined how?). The amendments to limit the bureaucracy, protect private property, and grant the states the authority to check Congress all cite specific numbers denominated in dollars. How is a dollar to be defined in decades and centuries to come? Any specification of a specific dollar amount in the constitution is prone to becoming as quaint and irrelevant as the twenty dollars clause of the seventh amendment. The amendment to limit the bureaucracy gives constitutional status to the Government Accountability Office and the Congressional Budget Office, which are defined nowhere else in the document.

In the amendment to grant the states the authority to check Congress there is a drafting error. In section 4, the cross-reference (do we really want to introduce brackets into the text of the constitution?) cites “An Amendment Establishing How the States May Amend the Constitution”, while “An Amendment to Limit the Federal Bureaucracy” is clearly intended. That amendment writes the two party system into the constitution by citing a “Majority Leader” and “Minority Leader”. Yes, that's how it works now, but is it wise to freeze this political structure (which I suspect would have appalled Washington) into the fundamental document of the republic?

Are there problems requiring constitutional change not addressed by the proposed amendments?

The economic amendments fail to address the question of sound money. Ever since the establishment of the Federal Reserve System, the dollar (which, as noted above, is cited in several of the proposed amendments) has lost more than 95% of its purchasing power according to the Bureau of Labor Statistics CPI Inflation Calculator. Inflation is the most insidious tax of all, as it penalises savers to benefit borrowers, encourages short-term planning and speculation, and allows the federal government to write down its borrowings by depreciating the monetary unit in which they are to be repaid. Further, inflation runs the risk of the U.S. dollar being displaced as the world reserve currency (which is already happening, in slow motion so far, as bilateral agreements between trading partners to use their own currencies and bypass the dollar are negotiated). A government which can print money at will can evade the taxing constraints of the proposed amendment by inflating its currency and funding its expenditures with continually depreciating dollars. This is the route most countries have taken as bankruptcy approaches.

Leaving this question unaddressed opens a dangerous loophole by which the federal government can escape taxing and spending constraints by running the printing press (as it is already doing at this writing). I don't know what the best solution would be (well, actually, I do, but they'd call me a nut if I proposed it), so let me suggest an amendment banning all legal tender laws and allowing parties to settle contracts in any unit of account they wish: dollars, euros, gold, copper, baseball cards, or goats.

I fear that the taxing amendment may be a Trojan horse with as much potential for mischief as the original commerce clause. It leaves the entire incomprehensible and deeply corrupt Internal Revenue Code in place, imposing only a limit on the amount extracted from each taxpayer and eliminating the estate tax. This means that Congress remains free to use the tax code to arbitrarily coerce or penalise behaviour as it has done ever since the passage of the sixteenth amendment. While the total take from each taxpayer is capped, the legislature is free to favour one group against another, subsidise activities by tax exemption or discourage them by penalties (think the Obamacare mandate jujitsu of the Roberts opinion), and penalise investment through punitive taxation of interest, dividends, and capital gains. A prohibition of a VAT or national sales tax is written into the constitution, thus requiring another amendment to replace the income tax (repealing the sixteenth amendment) with a consumption-based tax. If you're going to keep the income tax, I'm all for banning a VAT on top of it, but given how destructive and costly the income tax as presently constituted is to prosperity, I'd say if you're going to the trouble of calling a convention and amending the constitution, drive a stake through it and replace it with a consumption tax which wouldn't require any individual to file any forms ever. Write the maximum tax rate into the amendment, thus requiring another amendment to change it. In note 55 to chapter 5 the author states, “I do not object to ‘the Fair Tax,’ which functions as a national sales tax and eliminates all forms of revenue-based taxation, should it be a preferred amendment by delegates to a state convention.” Since eliminating the income tax removes a key mechanism by which the central government can coerce the individual citizen, I would urge it as a positive recommendation to such a convention.

Will leviathan be able to wiggle out of the new constitutional straitjacket (or ignore its constraints with impunity) as it has done with the existing constitution?

This is an issue which preoccupied delegates to the constitutional convention, federalists and anti-federalists alike, in the debate over ratification of the constitution, and delegates to the ratification conventions in the states. It should equally concern us now in regard to these amendments. After all, only 14 years after the ratification of the constitution the judicial branch made a power grab in Marbury v. Madison and got away with it, establishing a precedent for judicial review which has been the foundation for troublemaking to this day. In the New Deal, the previously innocuous commerce clause was twisted to allow the federal government to regulate a farmer's growing wheat for consumption on his own farm.

A key question is the extent to which the feedback mechanisms created by these amendments will deter the kind of Houdini-like escapes from the original constitution which have brought the U.S. to its present parlous state. To my mind, they will improve things: certainly if the Supreme Court or a regulatory agency knows its decisions can be overruled, they will be deterred from overreaching even if the overrule is rarely used. Knowing how things went wrong with the original constitution will provide guidance in the course corrections to come. One advantage of an amendment convention called by the states is that the debate will be open, on the record, and ideally streamed to anybody interested in it. Being a bottom-up process, the delegates will have been selected by state legislatures close to their constituents, and their deliberations will be closely followed and commented upon by academics and legal professionals steeped in constitutional and common law, acutely aware of how clever politicians are in evading constitutional constraints.


Can the U.S. be saved? I have no idea. But this is the first plan I have encountered which seems to present a plausible path to restoring its original concept of a constitutional republic. It is a long shot; it will certainly take a great deal of effort from the bottom-up and many years to achieve; the U.S. may very well collapse before it can be implemented; but can you think of any other approach? People in the U.S. and those concerned with the consequences of its collapse will find a blueprint here, grounded in history and thoroughly documented, for an alternative path which just might work.

In the Kindle edition the end notes are properly bidirectionally linked to the text, and references to Web documents in the notes are linked directly to the on-line documents.

Posted at August 26, 2013 13:31