The Liberty Amendments: Restoring the American Republic

by Mark R. Levin

Having delegated broad lawmaking power to executive branch departments and agencies of its own creation, contravening the separation-of-powers doctrine, Congress now watches as the president inflates the congressional delegations even further and proclaims repeatedly the authority to rule by executive fiat in defiance of, or over the top of, the same Congress that sanctioned a domineering executive branch in the first place.

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?

The federal government consumes nearly 25 percent of all goods and services produced each year by the American people.10 Yearly deficits routinely exceed $1 trillion.11 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, which is expected to reach about $26 trillion in a decade.12 It has accumulated unfunded liabilities for entitlement programs exceeding $90 trillion, which is growing at $4.6–6.9 trillion a year.

For example, 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. There is also serious talk from the governing elite about instituting a national value-added tax (VAT) on top of existing federal taxes,15 which is a form of sales tax, and divesting citizens of their 401(k) private pension plans.16 Even the rapaciousness of these policies will not be enough to fend off the severe and widespread misery unleashed from years of profligacy. Smaller nations such as Cyprus, Spain, and Greece provide a window into the future, as their borrowing has reached its limit.

However, it is not asking too much of “a great people [to] turn a calm and scrutinizing eye upon itself” and rally to their own salvation. It is time to return to self-government, where the people are sovereign and not subjects and can reclaim some control over their future rather than accept as inevitable a dismal fate.

During the ratification period, the Federalists repeatedly assured the Anti-Federalists and other skeptics of the proposed federal government’s limits. For example, 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.”18 In Federalist 45 he insisted, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”19 In Federalist 46, Madison asserted that “the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.”

But the issue is how best to preserve the civil society in a world of imperfect people and institutions. The answer, the Framers concluded, is to diversify authority with a combination of governing checks, balances, and divisions, intended to prevent the concentration of unbridled power in the hands of a relative few imperfect people.

The Constitution itself provides the means for restoring self-government and averting societal catastrophe (or, in the case of societal collapse, resurrecting the civil society) in Article V.

The fact is that Article V expressly grants state legislatures significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful, as many delegates in Philadelphia and the state conventions had worried it might. The idea was first presented at the Constitutional Convention on May 29, 1787, by Edmund Randolph, governor of Virginia,

On June 11, George Mason of Virginia—who had earlier drafted Virginia’s Declaration of Rights, the precursor to the Declaration of Independence—responded to some of the delegates who did not see the necessity of the proposal, by strongly advocating for it.

On September 15, Mason, alarmed that Congress would have the sole power to propose amendments, continued to insist on state authority to call for conventions. Mason explained that an oppressive Congress would never agree to propose amendments curtailing its own tyranny: Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.24 Mr. [Gouverneur] Morris [of Pennsylvania] & Mr. [Elbridge] Gerry [of Massachusetts] moved to amend the article so as to require a Convention on application of 2/3 of the Sts [states].

I was originally skeptical of amending the Constitution by the state convention process. I fretted it could turn into a runaway caucus. As an ardent defender of the Constitution who reveres the brilliance of the Framers, I assumed this would play disastrously into the hands of the Statists. However, today I am a confident and enthusiastic advocate for the process. The text of Article V makes clear that there is a serious check in place. Whether the product of Congress or a convention, a proposed amendment has no effect at all unless “ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof. . . . ” This should extinguish anxiety that the state convention process could hijack the Constitution.

There are other reasons for assuaging concerns. Robert G. Natelson, a former professor of law at the University of Montana and an expert on the state convention process, explains that “a convention for proposing amendments is a federal convention; it is a creature of the states or, more specifically, of the state legislatures. And it is a limited-purpose convention. It is not designed to set up an entirely new constitution or a new form of government. How do we know that it’s a federal convention? [It] was the only kind of interstate convention the Founders ever knew, or likely ever considered. Indeed, when they talked during the ratification process about conventions for proposing amendments, they always talked about them as representing the states.”28 Moreover, the state legislatures determine if they want to make application for a convention; the method for selecting their delegates; and the subject matter of the convention.

In Federalist 85, Alexander Hamilton—a leading advocate of a robust federal government—explained that “the national rulers, whenever nine [two-thirds] States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged ‘on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.’ The words of this article are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air.”31

The Framers anticipated this day might arrive, for they knew that republics deteriorate at first from within. They provided a lawful and civil way to repair what has transpired. We, the people, through our state legislatures—and the state legislatures, acting collectively—have enormous power to constrain the federal government, reestablish self-government, and secure individual sovereignty.

What follows are proposed amendments to the Constitution—The Liberty Amendments. It is my hope and aspiration for our country that these amendments can spur interest in and, ultimately, support for the state convention process.

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.2 Ronald Rotunda, Chapman University law professor and constitutional expert, made the point a few years ago that “turnover in the House of Lords has been greater than the turnover in the House of Representatives. There was even more turnover in the membership of the Soviet Politburo.”3 And little has changed since.

For example, 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 and would-be constituencies. There are undoubtedly other reasons for their behavior, including and most certainly ideology, but there is no denying that the instrumentalities of the federal government are used to build political constituencies and supporters—that is, to reshape the nature and mind-set of the electorate. Therefore, Congress has become less of a representative body as its members are more insulated.

It is apparent that in Washington and most political capitals TIME in office = POWER. An important antidote is congressional term limits, which slowly displaces a self-perpetuating ruling class populated by professional politicians—which is increasingly authoritarian in its approach to governance—with a legislative body whose members are, in fact, more representative of the people, for they are rotated in and out of Congress over a generally shorter and defined period of time.

In the Constitutional Convention, on June 2, only days after it convened, Franklin offered his opinion about the question of paying legislators and executive officers of the federal government. He opposed the idea. But his speech is relevant respecting the effect of power on public officials, which can be read today as a prescient and compelling warning about human behavior.

Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of honour that shall be at the same time a place of profit, and they will move heaven and earth to obtain it.

What Franklin was trying to do was use two of the forces that animate individuals to action, ambition and avarice, to make federal office unattractive to people who are motivated solely or primarily by those character traits. In essence, he was arguing for a de facto term limit on government service by making the act of service a genuine sacrifice for an incumbent. And that was, and is more so today, a valid objective.

Thomas Jefferson was a longtime proponent of rotation. In a reply letter to James Madison, commenting on the proposed Constitution, he wrote in December 1787, in part, that “I dislike, and strongly dislike . . . the abandonment, in every instance, of the principle of rotation in office, and most particularly in the case of the President. . . . ”

Numerous delegates to the Constitutional Convention supported rotation in office. And they debated terms of office for each of the newly created public offices. But, as Jefferson pointed out in his letter to Madison, he was concerned that there was no provision in the draft Constitution for mandatory rotation or term limits.

As Petracca explains, “throughout most of the nineteenth century, not very many members of Congress sought reelection. Not until 1901 . . . did the average number of terms served by House members prior to the present session rise above two terms.

During the 25 elections between 1850 and 1898 . . . turnover averaged 50.2 percent. On average, more than half the House during any given session in the second half of the nineteenth century was made up of first term members.”

The problem today, however, 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. The evidence abounds, and is described at length throughout this book.

The nation’s Founders believed in the concept of a “citizen/servant”—someone who had a life and a career in the private sector, but who offered his experience and talents to public service for a limited time, and then returned to private life. In many cases, government officials, even representatives and senators, actually kept active in their private sector vocation during their tenure in public office, dividing time between the two areas of life.

An excellent example of the mind-set of the Founders toward government service was the manner of compensation established for our national elected officials.

Not surprisingly, the timeline for congressional tenure burgeoned concurrently with the rise of the Progressive movement in the United States. 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. Thus, the adoption of the Sixteenth Amendment and the imposition of the federal income tax and the adoption of the Seventeenth Amendment and the repeal of state representation in the Senate, among other things, contributed to the unleashing of infinite and unfinished acts of centralized government. The very nature of representative government under the Constitution, with its structural limits on federal governmental action and respect for individual sovereignty and local community interests denoted in the Ninth and Tenth Amendments, was altered fundamentally. Today it reveals itself in relentless social engineering and lifestyle calibrations.

Although imperative to reestablishing the American Republic, this amendment is not extraordinary. Voters are used to the impact of the Twenty-Second Amendment on presidential elections, and thirty-six of the fifty states have some form of term limits for their governors.19 Some states have limits on the number of terms a governor may serve throughout his life, while others have limits on serving consecutive terms. For example, Virginia prohibits reelection after a single gubernatorial term.20 Only one state, Utah, has no term limits since the legislature repealed the state’s term limits statutes.21 In addition, fifteen states have term limits for state legislators.22 There are also term limits on members of several municipal, county, and town governing bodies.

Benjamin Franklin put term limits in the proper context. On July 26, 1787, at the Constitutional Convention, he said: “It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought was contrary to republican principles. In free Governments the rulers are the servants and the people their superiors & sovereigns. For the former therefore to return among the latter was not to degrade but to promote them. And it would be imposing an unreasonable burden on them, to keep them always in a State of servitude, and not allow them to become again one of the Masters.”

Ben Franklin on term limits during the early days of the Constitutional Convention

AN AMENDMENT TO THE U.S. Constitution that was sold as a cleansing and transformative expansion of popular democracy is actually an object lesson in the malignancy of the Progressive mind-set and its destructive impact on the way we practice self-government in a twenty-first-century, post-constitutional nation.

The Seventeenth Amendment altered fundamentally the way most senators had been chosen for 124 years. Prior to its ratification, 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. If vacancies in Senate seats arose between elections, the state legislatures typically chose a replacement to serve the remainder of the unexpired term. If a vacancy occurred at a time when a state legislature was out of session, the governor of the state was empowered to name a temporary officeholder who would serve until the legislature reconvened and could choose a new senator.

If democracy in limited doses is good, so went the Progressive cant at the time, more democracy could only be proportionally better. If choosing congressmen and congresswomen in the House of Representatives by popular vote works so well, then why not choose senators by direct popular elections?

However, 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.

Virginia governor Edmund Randolph rose to offer what would become known as the Virginia Plan for the organization of the new national government, as a point from which to begin deliberations. The plan, authored primarily by James Madison, included a bicameral national legislature, a unitary executive, and a national judiciary. The first and largest body of Congress, which would become the House of Representatives, was to be elected directly by the people. The second body, which would become the Senate, would be much smaller and chosen by the first group of candidates put forth by the state legislatures.

On June 7, Delaware’s John Dickinson made a motion that the second house of the national legislature (the Senate) be chosen by the state legislatures. He did so because “this mode will more intimately connect the State governments with the national legislature—it will also draw forth the first characters either as to family or talent, and that it ought to consist of a considerable number.”10

After the convention’s draft constitution was dispatched to the states for ratification, the character of the Senate was an imperative selling point about the federal nature of the proposed national government. In Federalist 39, Madison went to great pains to delineate the ways in which the Constitution established a federal, republican form of government. “The first question that offers itself is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.”17

While the House, elected directly by the people in proportion to the populations of the various states, was a national body, “[t]he Senate, on the other hand, will derive its powers from the States as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress.” This circumstance, he contended, was distinctive to a federal government rather than a unitary national entity.18

Fisher Ames’s speech to the Massachusetts Ratification Convention. Ames, a highly regarded figure, said that the Senate, by its unique nature, exemplified the “sovereignty of the states,” while the House of Representatives was the dominion of the “individuals.” This meant that the Senate served as a “federal feature” and a guard against the national government eventually subsuming the states—a recurring complaint among delegates to the commonwealth’s ratification convention. Ames even warned that if members of the Senate were elected directly by the people it would make it much easier for the federal government to “consolidate” the state governments under its control. State governments, Ames said, spoke for “the wishes and feelings and local interests of the people.” They were “the safe guard and ornament of the constitution, a shelter against the abuse of power and the natural avengers of our violated rights.” He characterized senators as “the ambassadors of the states.”

Many were fearful that the new federal government would seize state authority and centralize power. The state legislatures’ role in selecting senators was considered one of the most significant firewalls. There was never serious consideration of the direct popular election of both houses of Congress.

The proposal that eventually became the Seventeenth Amendment, providing for the direct popular election of senators, probably would not have become part of the Constitution had it been brought forward in other times. In fact, it failed when it was introduced several times over the decades before it was finally ratified. The idea benefited from the unique political and cultural atmosphere that consumed the nation during the late nineteenth and early twentieth centuries—a Progressive populism promoting simultaneously radical egalitarianism and centralized authoritarianism. Public sentiment grew amenable to changing the method of selecting senators. State legislatures responded to these pressures by letting the public vote, in some fashion, on who they wanted as their senators.

Among the most persuasive arguments offered for changing the way senators were chosen was that state legislatures were occasionally in disarray over the selection of senators, unable or unwilling to find enough votes to elect a senator, which occurred during the nineteenth century. Thus, states were denied full representation in the Senate from time to time. For example, one of Delaware’s Senate seats was unoccupied from March 1899 to March 1903. Moreover, the Delaware legislature failed to select any senators from 1901 to 1903.

The day after the Seventeenth Amendment became part of the Constitution, the balance of power that had existed between the states and the federal government since the Constitution’s ratification was dealt a critical blow. The long silence of the states had begun.

April 8, 1913, the 17th amendment was ratified, changing the election of Senators to popular vote

The states no longer had a legislative venue, or any venue, to influence directly the course of the federal government. This contributed significantly to the dismantlement of the states’ traditional and exclusive areas of governing responsibility. As a result, today the federal government fills whatever areas of governance and even society it chooses. State sovereignty exists mostly at the will of the federal government. The federal government’s limited nature under the Constitution was transmuted into the kind of centralized power structure the Framers worked so diligently to thwart.

And what of the post–Seventeenth Amendment Senate? 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. In fact, states are often viewed as little more than another constituency, one among hundreds, with interests that may or may not be relevant to or comport with a senator’s political and policy ambitions.

Obamacare as an example of how the States were completely neutralized by the 17th amendment, and overrode local objection to it.

The Seventeenth Amendment serves not the public’s interest but the interests of the governing masterminds and their disciples. Its early proponents advanced it not because they championed “democracy” or the individual, but because they knew it would be one of several important mechanisms for empowering the federal government and unraveling constitutional republicanism. And they have done so, they claim, with the consent of the citizen, for the citizen can cast a vote for his senator. Of course, the federal government’s utopian mission is undeterred by voting should the citizenry vote in opposition to it. The vote is easily and routinely frustrated by all the federal branches, as is self-government generally.

The point is that the Framers clearly intended to create intrinsic limitations on the ability of any one branch or level of government to have unanswered authority over the other. Moreover, there can be no doubt that were the conditions that exist today—with the Supreme Court involving itself in minute and endless facets of everyday life—known to the convention delegates, they would undoubtedly endorse a check on judicial authority.