The Liberty Amendments: Restoring the American Republic

by Mark R. Levin

1803 Supreme Court decision in Marbury v. Madison. No doubt he would have been appalled. 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.”

Although the decision has been lauded by many scholars of all philosophical stripes, the fact is that the ruling altered and expanded the Court’s limited authority to adjudicate civil disputes and criminal complaints into a judicial oligarchy with few institutional limits on its power. And the extent to which there are limits depends on the forbearance of the very courts that snatched the authority in the first place. It would seem that if a Supreme Court majority of five lawyers has the final word on constitutional matters, then governance comes down to selecting five lawyers. This is obviously contrary to the Framers’ intent. Had the Constitutional Convention conferred such authority on a handful of individuals, which it most assuredly did not, it is indeed doubtful it would have conferred life terms upon them and provided no effective recourse.

Jefferson wrote a year after Marbury was issued, “The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Dred Scott v. Sandford case, which was an abomination.

Chief Justice Roger Taney, who held that office from 1836 until his death in 1864, argued for the majority of the Court’s members that Scott was not a citizen, for citizenship had been confined to the white race and, therefore, Scott had no standing to sue. Moreover, he declared that Congress did not have constitutional authority to ban slavery in those territories, for it denied slaveholders property without due process.11 Should Taney and the Court have had the final word? The Dred Scott decision was a major impetus for the Civil War.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Hence, in Wilson’s view, the federal judiciary was to behave as a perpetual constitutional convention—without the benefit of representation and input from the states—rewriting the Constitution as a relative handful of judges divine the merits of this or that issue, nearly always promoting the centralization and concentration of power in the federal government.

Reality informs us that human beings are imperfect, including the mere nine individuals who serve on the Supreme Court. The fact that they hold law degrees from prestigious schools, wear black robes, and are each referred to as “Your Honor” does not change the fallibility of their nature. Nor does the fact that from time to time the Court issues rulings with which much of society agrees or which might be considered just or even exceptional. Even monarchs have been occasionally benevolent and wise. But this does not change the essential character of authoritarianism and the general mind-set of those who would rule over citizens as subjects. In fact, history belies the notion of enlightened governing masterminds, immune from republican attitudes and values. Whatever one may think of the Marbury decision, it cannot be denied that today the Supreme Court’s power is of the sort Wilson envisioned.

For example, the Court has issued numerous politically determinative decisions, nearly all of which promote a trajectory of expanded federal power, including the Court’s own authority, in defiance of the Constitution’s structure and limits. On such occasions, the justices contort the facts and the law, as they must, to reach their desired result.

Rogues gallery of cases, beyond 1803 Marbury v Mdison

1942 Wickard v. Filburn case, the Court ruled that the Interstate Commerce Clause encompasses commerce that is intrastate

1947 Everson v. Board of Education decision, it declared the long-standing balance between government and religion void, and the existence of a “wall of separation” between church and state,

1965 case Griswold v. Connecticut, the Court found that the Constitution’s so-called penumbras and emanations prohibited states from banning the sale of contraceptives

1982 decision in Plyler v. Doe, the Court conferred a constitutional right on millions of illegal alien children to a free public education;

2003 Lawrence v. Texas case, the Court ruled that sodomy is a constitutionally protected privacy right (such laws were alre...

2012 Obamacare decision, the Court ruled that a penalty is a tax (contrary to the statute’s text, legislative history, the Court’s pr...

there are many such examples. Some among us cheer these decisions; some denounce them. But should five individuals be making these political and public policy decisions and imposing them on every corner of the nation and every part of society? Should they have the final say on such matters, as they pursue even newer and more novel paths around the Constitution in exercising judicial review?

the Supreme Court’s record is, at times, grievous.

Rogues gallery of grievous supreme court cases, part two

1896 Plessy v. Ferguson holding, where the Court sanctioned racial segregation in public facilities under the doctrine of separate but equal;

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;

Roe v. Wade, the 1973 ruling in which the Court legalized abortion throughout the nation wi...

“The biggest myth about judges is that they’re somehow imbued with greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties. Some have been brilliant, principled, and moral. Others have been mentally impaired, venal, and even racist.”32

Consider a few of the stunning personalities who have served on the Court:

Rogues gallery of supreme court justices

there is no reason a great society must surrender, for all time and in all cases, to a judicial oligarchy exercising supreme power over the other federal branches and the states. The Supreme Court is to be independent in its judicial deliberations but not supreme in all matters, leaving society without recourse.

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.

Congress and/or the state legislatures will also be free to override the decision with supermajority votes. By adding the override, for the first time justices will know that their most significant majority opinions may not solely be judged by history, but by the people who must live under them, with the possible ignominy of having a ruling overridden by a supermajority of the legislative branches. The override also has the benefit of requiring a fairly substantial societal consensus in order to be successfully invoked in the first place. This is also the primary reason the proposed amendment proscribes a presidential veto of an override.

Dr. Milton Friedman, an iconic economist and Nobel laureate, concluded that “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. That is why simply electing the right people is not a solution.”1 The solution is to remove by constitutional design that which cannot be accomplished statutorily—the overwhelming political incentive for reckless government spending by the governing masterminds.

For more than four years, since April 29, 2009, Congress and the president have refused to adopt a budget. Both branches were in violation of the Congressional Budget and Impoundment Control Act of 1974 (Budget Act).2 And during this period and since, the federal government has unleashed a spending blitz unparalleled in American history.

from fiscal year 2010 through the early part of 2013 Congress passed seventeen continuing resolutions, which are stopgap funding measures, because the Senate refused to comply with the Budget Act’s requirements.

In addition to short-term spending bills, Congress has also legislated by adopting massive omnibus bills that even voting members cannot comprehend.

Clearly, Congress and the president knowingly subvert their own legal budgetary requirements for the purpose of increasing spending while attempting to mask political responsibility from the public. They are dragging the nation into a financial death spiral. Their opportunism and dysfunction threaten a financial implosion that presages the eventual collapse of the nation’s currency and economy, resulting in unimaginable devastation and misery. Therefore, restraint must be imposed on a broken federal system by constitutional amendment and, if possible, promptly.

As the facts make undeniable, the nation is running out of time. Federal fiscal spending in real dollars has increased to unsustainable levels. For fiscal operations alone, in 2002, the federal government spent a little over $2 trillion. By 2008, it spent $2.98 trillion. In 2009, federal spending increased to $3.5 trillion. For 2010 and 2011, federal spending was $3.45 and $3.6 trillion, respectively. In 2012, federal spending was $3.79 trillion.6 As a percentage of GDP, federal spending for fiscal operations is historically sky-high. In 2002, federal outlays as a percentage of GDP were 19.1 percent. By 2008, outlays increased to 20.8 percent. In 2009, they increased to 25.2 percent. For 2010 and 2011, spending as a percentage of GDP was 24.1 percent, respectively. In 2012, outlays accounted for 24.3 percent of GDP.

However, with increases in yearly federal deficits come increases in the overall federal debt. 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 85.2 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.11 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.

The federal debt in real dollar amounts for fiscal operations has also reached staggering heights. For 2008, the figure was $10.69 trillion; $12.14 trillion in 2009; $13.8 trillion in 2010; $15.22 trillion in 2011; and more than $16.3 trillion in 2012.

“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.”

None of this takes into consideration the total unfunded liability of major entitlement programs, which is absolutely ruinous. The total unfunded liability of Medicare as of 2012 was $42.8 trillion.

The total unfunded liability of Social Security as of 2012 was $20.5 trillion. The program’s trustees concluded that “[b]eginning in 2021, annual costs exceed total income, and therefore assets begin to decline . . . at the beginning of 2022.”

Therefore, 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!

“GAO’s simulations continue to illustrate that the federal government is on an unsustainable long-term fiscal path. In both the Baseline Extended and Alternative simulations, debt held by the public grows as a share of gross domestic product (GDP) over the long term. While the timing and pace of growth varies depending on the assumptions used, neither set of assumptions achieves a sustainable path. . . . ”20 In other words, the nation is facing eventual economic collapse.

In response to these disastrous fiscal and financial policies, the Federal Reserve System (Fed) has aggressively pursued monetary policies that are equally ruinous. When the Fed was established in 1913, its original mission was to ensure a stable monetary system and sound dollar.

This is vast power in the hands of a relatively few governing masterminds—seven members of the board of governors and five of the twelve Federal Reserve Bank presidents composing the Federal Open Market Committee.

Fed has launched a controversial quantitative easing campaign in which it has monetized trillions of dollars in debt—that is, the Fed creates credit, which is essentially the same as printing money, and uses it to buy federal government bonds, such as Treasury notes and mortgage-backed securities, thereby piling debt upon debt and pumping money into the economy.

held interest rates at historically low levels for years, thereby distorting market behavior and setting the stage for further economic destabilization as interest rates eventually rise—as they must.

devalue the dollar by 33 percent over the next twenty years, which will cut the dollar’s value by one-third and drive up prices and costs while reduc...

The federal government’s fiscal situation is disastrous and dire, resulting from its boundless intervention in and manipulation of the individual and his environment. The evidence is unequivocal and overwhelming.

Nonetheless, led by the Massachusetts Ratification Convention in early 1788, several states warned that should the Constitution be ratified, the new Congress needed to place further limits on the grant of federal taxing authority.

This should, once and for all, put to the rest the notion that by “general welfare” the Framers intended to grant Congress “general power” to tax. The Federalists insisted the Constitution effectively limited the taxing authority whereas the Anti-Federalists were concerned that the language would be distorted by future Congresses. There was overwhelming concurrence that Congress should not be, and was not, granted plenary taxing power.

However, the federal income tax—a “progressive” income tax—was a central goal of the Progressive movement. And in 1909, President William Howard Taft urged its adoption through the passage of a Sixteenth Amendment to the Constitution. It was passed quickly by Congress the same year. By 1913, three-fourths of the states ratified it. Then, as now, much of the political debate for the federal income tax was based on shifting the burden of taxation from the broader population to a much smaller segment of society.

The Tax Foundation reports that “the federal deficit [each year] has grown so large that “[e]ven if the government took all of the income earned by those who have an after-tax income of $1 million or more, the amount of revenue generated would fall far short of eliminating” the over $1 trillion deficit each year. In 2010, for example, the after-tax income of all millionaires was about $709 billion. The 2012 fiscal operating deficit was $1.32 trillion.

Hence, class warfare or soaking the so-called rich may make for good populist demagoguery and serve the political ends of the governing masterminds, but it does nothing to solve the grave realities of the federal government’s insatiable

In addition to the financial burden and economic dislocation, the tax system and Internal Revenue Code have become so complex and oppressive that the federal government’s National Taxpayer Advocate reported in 2012, “U.S. taxpayers (both individuals and businesses) [spend] more than 6.1 billion hours to complete filings required by a tax code that contains almost four million words and that, on average, has more than one new provision added to it daily. Indeed, few taxpayers complete their returns without assistance. Nearly 60 percent of taxpayers hire paid preparers and another 30 percent rely on commercial software to prepare their returns.”