Mark R. Levin, The Liberty Amendments, (c) 2013 Simon & Schuster, NY

1. States Calling For A Constitutional Convention

As anyone who has attended a session of their own state’s legislature would know and could tell you, legislators especially of the majority party are fairly characterized as drunk with power. They have no trouble taking the 9th and 10th Amendments at face value, that is, inventing and enjoying all sorts of special applications of their unenumerated powers. They also have no problem with bringing state law in conformity with federal law, especially if doing so advances the political agenda with which they and they federal counterparts fully agree and which, not by coincidence, always goes in the direction of increasing the government’s power over the people. Being politicians who always aspire to higher office, state legislators, especially when termed out by state laws that have imposed limits on the length of their “service,” look to a career at the federal level. In everything they do at the state level, they routinely demonstrate the sad fact that either they are no more familiar with the federal or state Constitution than the average Joe Six Pack, or have no more respect for or desire to be bound by them than anyone in Congress or the federal executive.

Therefore it is entirely unreasonable to assume that people like this would suddenly become statesmen and support a call for a constitutional convention, or that, if they do, they would do so with the aim of putting the brakes on runaway federal power. They are looking forward to the day when they personally will have a chance to exercise that power.

It is far much more likely that they would support a constitutional convention as a chance to strip the Constitution of its remaining few shreds of protections of individual rights. They would load up their delegation to such a convention with like-minded statists, of which there is no shortage among the highly credentialed elites in academia, in the media, and of course in politics.

2. An Amendment to Establish Term Limits for Members of Congress

SECTION 1:  No person may serve more than twelve years as a member of Congress, whether such service is exclusively in the House or the Senate or combined in both Houses.

SECTION 2:  Upon ratification of this Article, any incumbent member of Congress whose term exceeds the twelve-year limit shall complete the current term, but thereafter shall be ineligible for further service as a member of Congress.

Of course no sitting congressman would vote to put himself out of a job. And no careerist, looking to further his “service” at the federal level, would do so either. This amendment will never become  part of the Constitution.

Term limits that are in place now are at the state level and were imposed by a direct vote of the people, not by their state legislatures; the only exception is the term limit on the President, which was imposed in response to the blatant arrogance of FDR. But notice that there is NO provision in the Constitution for a direct vote of the people, using the mechanism that at the state level may be variously called an initiative, a proposition, a ballot measure or a ballot question. It is clear, from the emanations from the penumbra of the original Constitution, that the Founders had a healthy distrust of the common citizen’s ability to pay attention to and understand the great issues, and therefore need to select from their ranks the leaders who are tasked with those issues.

3. An Amendment to Restore The Senate

SECTION 1:  The Seventeenth Amendment is hereby repealed.  All Senators shall be chosen by their state legislatures as prescribed by Article I.

SECTION 2:  This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.

SECTION 3:  When vacancies occur in the representation of any State in the Senate for more than ninety days, the governor of the State shall appoint an individual to fill the vacancy for the remainder of the term.

SECTION 4:  A Senator may be removed from the office by a two-thirds vote of the state legislature.  

This time it is the people who will fight this amendment tooth and nail. The last thing they’d ever go for is well connected insiders and cronies appointed by the establishment to a position of such great power. Politics being what it is, so crucially dependent on fat cats and slavish media, there may not be any practical difference between an appointed or an elected Senator, but the differences in perception (the “optics” as the ignoramuses call it) are just to devastating. This amendment will never become  part of the Constitution.

4. An Amendment of Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override

SECTION 1:  No person may serve as Chief Justice or Associate Justice of the Supreme Court for more the a combined total of twelve years.

SECTION 2:  Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes.  The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of the Amendment, the terms for the justices of the Second Class will expire at the end of the eighth year, and the Third Class at the end of the twelfth year, so that one third of the justices may be chosen every fourth year.  

SECTION 3:  When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of the majority of the Senate, shall serve the remainder of the unexpired term.  Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.  

SECTION 4:  Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.

SECTION 5:  The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.

SECTION 6:  Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.

SECTION 7:  The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.  

SECTION 8:  Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.

Section 6 is actually rather badly worded. It is not clear if it requires (1) three fifths of the States, (2) and three fifths of both their lower and upper chambers, or (3) just the simple majority of both their lower and upper chambers.

This amendment is also defective another way. A two-term President is guaranteed to appoint at least two thirds of the Court, and, if the stars are aligned just right, the entire Court (on the first day, last day and in the middle of his two terms, all neatly four years apart). No matter who is President — Washington, Reagan, Bush or Obama — such a power is the last thing we need to give any one President. One emanation from the penumbra of the Constitution is the desire to build in continuity across several election cycles. That is why a Senator serves for six years, spanning three House terms; the Senate is divided into three classes, two years apart;. and the justices have a lifetime appointment. You’d have to set the term of a justice to 27 years to avoid the problem of one President appointing the majority on the Court.

5. An Amendment to limit Federal Spending

SECTION 1:  Congress shall adopt a preliminary fiscal year budget no later than the first Monday in May for the following fiscal year, and submit said budget to the President for consideration.

SECTION 2:  Shall Congress fail to adopt a final fiscal year budget prior to the start of each fiscal year, which shall commence on October 1 of each year, and shall the President fail to sign said budget into law, an automatic, across-the-board, 5 percent reduction in expenditures from the prior year’s fiscal budget shall be imposed for the fiscal year in which a budget has not been adopted.

SECTION 3:  Total outlays of the federal government for any fiscal year shall not exceed its receipts for that fiscal year.  

SECTION 4:  Total outlays of the federal government for each fiscal year shall not exceed 17.5% of the nation’s gross domestic product for the previous calendar year.  

SECTION 5:  Total receipts shall included all receipts of the United States government but shall not include those derived from borrowing.  Total outlays shall include all outlays of the United States Government except those for the repayment of debt principal.  

SECTON 6:  Congress may provide for a one-year suspension of one or more of the preceding sections in the Article by a three-fifths vote of both Houses of Congress, provided the vote is conducted by roll call and sets forth the specific excess of outlays over receipts or outlays over 17.5 percent of the Nation’s gross domestic product.

SECTION 7:  The limit on the debt of the United States held by the public shall not be increased unless three-fifths of both Houses of Congress shall provide for such an increase by roll call vote.

SECTION 8:  This Amendment shall take effect in the fourth fiscal year after its ratification.  

This amendment has a few minor problems.
(1) Congress, the President and their accountants have proven to be very creative in defining receipts and outlays, especially when they wanted to create the illusion of a balanced budget. Terms such as receipts. outlays, across-the-board, etc., have to be defined rather carefully.
(2) It is not clear why the government could or would borrow any money any more. Section 3 says spending cannot exceed income. Section 5 says income does not include borrowed funds.
(3) Section 6 does not say why Congress would override these rules.
(4) What is so sacred about 17.5% of GDP? Why not 5, 10, 20, …?
(5) The problem is present now, and is a clear and present danger to the nation, now. Why wait 4 years for implementation? Why should this amendment not take effect immediately?

5a. An Amendment to limit Federal Taxing

SECTION 1:  Congress shall not collect more than 15 percent of a person’s annual income, from whatever source derived.  “Person” shall included natural and legal persons.

SECTION 2:  The deadline for filing federal income tax returns shall be the day before the date set for elections to federal office.

SECTION 3:  Congress shall not collect tax on a decedent’s estate.

SECTION 4:  This Amendment shall take effect in the fourth fiscal year after its ratification.

This amendment also has a few minor problems.
(1) What is so sacred about 17.5% of income? Why not 5, 10, 20, 40, 80, …?
(2) It’s nice that a decendent’s estate would not be taxed, but you also have to specify that an inheritance would not be considered as ordinary income and taxed as such to the people who inherit the estate.
(3) Again, why wait 4 years for implementation? Why should this amendment not take effect immediately?

Nothing will change until and unless the income tax, the 16th Amendment, is repealed and replaced by a retail sales tax — anything but the value-added tax! The purpose of tax reform is to make it simple and easy to collect and comply. Nothing is simpler than to pay a sales tax at the time of purchase.

6. An Amendment to Limit the Federal Bureaucracy

SECTION 1:  All federal departments and agencies shall expire if said departments and agencies are not individually reauthorized in stand-alone reauthorization bills every three years by a majority vote of the House of Representatives and the Senate.

SECTION 2:  All Executive Branch regulations exceeding an economic burden of $100 million, as determined jointly by the Government Accountability Office and the Congressional Budget Office, shall be submitted to a permanent Joint Committee of Congress, hereafter [called] the Congressional Delegation Oversight Committee, for review and approval prior to their implementation.

SECTION 3:  The Committee shall consist of seven members of the House of Representatives, four chosen by the Speaker and three chosen by the Minority Leader; and seven members of the Senate, four chosen by the Majority Leader and three chosen by the Minority Leader.  No member shall serve on the Committee beyond a single three-year term.  

SECTION 4:  The Committee shall vote no later than six months from the date of the submission of the regulation to the Committee.  The Committee shall make no change to the regulation, either approving or disapproving the regulation by majority vote as submitted .  

SECTION 5:  If the Committee does not act within six months from the date of the submission of the regulation to the Committee, the regulation shall be considered disapproved and must [shall] not be implemented by the Executive Branch.  

Why is the reauthorization required every three years? That means some Congresses will not have a chance to vote on this. Congress votes on a budget every year; that is the time, with the budget vote, to decide if a department or agency is needed anymore. However, some functions of government, such as defense, must by their very nature and importance be guaranteed continuity, they cannot be left in limbo, their existence dependent on the whims of Congress. This amendment needs some serious work to clarify its intent and implementation.

The CBO and the GAO have seriously damaged their reputations for thoroughness and accuracy in the discussions about obamacare. Since it is the job of Congress to exercise oversight over the federal bureaucracy, there should be no economic impact estimate to trigger the automatic congressional oversight of federal regulations. They should ALL be examined, period. That will secure three important results.
(1) Congress will write fewer laws, so as to minimize their oversight workload later.
(2) Congress will be more careful in specifying what they want done, so the bureaucracy will see less need to second guess Congress and write regulations based on incorrect and inappropriate interpretation of congressional intent.
(3) The bureaucracy will write fewer regulations, especially when they see most of them not go into effect simply because Congress had no time to consider them.

7. An Amendment to Promote Free Enterprise

SECTION 1:  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.

SECTION 2:  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.  

This amendment is an attempt to undo the damage caused by gross misinterpretations of the “commerce clause” by the Congress and the Court. However, it suffers from errors of omission, and it needs a lot of work.
(1) Does the federal government have the power to regulate commerce and trade between the US and other countries? Apparently not, according to this amendment.
(2) How does the Constitution apply in the age of globalized commerce and trade?
(3) How does the Constitution apply, and how are the States supposed to respond, to problems presented by the activities of multi-state and multi-national corporations? Who has jurisdiction over what and to what extent?
(4) The “commerce clause” has been used as the government’s tools in criminal law enforcement. For example, it was used to justify the creation and operation of the FBI. What is the intended effect of this amendment on law enforcement?
(5) The “commerce clause” is not the only one that became the favorite tool of Congress and the Court to grow and abuse federal power. Another two are the income tax and the “due process” clause of the 14th Amendment. The income tax amendment established the principle that you are guilty until you prove yourself innocent; after all, it’s only money… The “due process” clause established the principle that the government can heap all kinds of abuse on an individual, as long as an established procedure (“due process”) is followed. Needless to say, “due process” has been a favorite of dictators and tyrants — to wit, fascist, nazi and communist governments — to claim legitimacy for themselves and their actions.

8. An Amendment to Protect Private Property

SECTION 1:  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.  

This amendment also needs work. Clearly the intent is to apply it to all levels of government — federal, state, and local. Well, it should say so, explicitly. It is also an attempt to rein in abuse of the “eminent domain” clause by Congress, by state and local governments, and by the Court. To fix that, this amendment should specifically define “public use,” and perhaps also specifically state that “public use” does not include forcing the conversion of property from one private use to another simply because it may lead to an increase in tax receipts. And this amendment is also an attempt to rein in abuse by regulatory agencies, such as the EPA. Again, it should say so more explicitly than it does. It needs to define “financial loss,” as well as “compensate fully.” Moreover, this amendment needs to include provisions to apply sanctions against individual government agents as well as the agencies that employ them, when they engage in abuses against owners of private property. After all, “the government” is not some sort of supernatural entity, it is nothing but human beings acting according to their job functions, and therefore can and should be held personally accountable for actions taken under color of authority.

9. An Amendment to Grant the States Authority to Directly Amend the Constitution

SECTION 1:  The State Legislatures, whenever two-thirds shall deem it necessary, may adopt amendments to the Constitution.

SECTION 2:  Each State Legislature adopting said Amendments must adopt Amendments identical in subject and wording to the other State Legislatures.  

SECTION 3:  A six-year time limit is placed on the adoption of an Amendment, starting from the date said Amendment is adopted by the first State Legislature.  Each State Legislature adopting said Amendment shall provide an exact copy of the adopted Amendment, along with an affidavit signed and dated by the Speaker of the State Legislature, to the Archivist of the United States within fifteen Calendar days of its adoption.

SECTION 4:  Upon adoption of an Amendment, a State Legislature may not rescind the Amendment or modify it during the six-year period in which the Amendment is under consideration by the several states’ Legislatures.

This amendment is written rather carelessly and sloppily. It needs to be rewritten.
(1) Section 1 needs to specify whether each State’s legislature must pass a proposed amendment by a two thirds vote of both of its chambers, or by a simple majority.
(2) It does not say when a proposed amendment becomes part of the Constitution. Is it when the 33rd or 34th state ratifies it? Or when the Archivist of the US certifies that he has received affidavits from 33 or 34 states? How much time after either event?
(3) The Constitution specifies three fourths of the States concurring in this process. Why does this amendment propose to change that to two thirds?

10. An Amendment to Grant the States Authority the Check Congress

SECTION 1:  There shall be a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final passage by both Houses of Congress,  During the engrossment period, the bill or resolution shall be placed on the public record, and there shall be no changes to the final bill or resolution.

SECTION 2:  Section 1 may be overridden by two-thirds vote of the members of each House of Congress.

SECTION 3:  Upon three fifths vote of the state legislatures, the States may override a federal statute.

SECTION 4. Upon three-fifths vote of the state legislatures, the States may override Executive Branch regulations exceeding an economic burden of $100 million after said regulations have been finally approved by the Congressional Delegation Oversight Committee.

SECTION 5:  The States’ Override shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by the Congress or the President.

SECTION 6:  The States’ override authority must be exercised no later than twenty-four months from the date the President has signed the statute into law, or the Congressional Delegation Oversight Committee has approved a final regulation, after which the States are prohibited from exercising the override.  

This amendment is also flawed. For one thing, it consists of two unrelated parts. One is about the internal workings of Congress. OK, instead of no days or three days to review a bill before passage, we’ll take a month. Why not two or three months? Most of us have lives other than watching Congress and the legislatures when they are in session. And yet Congress can override this time limitation by a 3/5 vote; why? The other part concerns the ability of States to override federal laws and regulations; again, why the $100M trigger? And again, the amendment fails to specify if each State must approve the override by 3/5 or by simple majority. The major flaw in this amendment is failing to define what “override” means, and what happens to the law or regulation afterwards. Is it null and void as if it had never been passed? Who formally makes that decision? When does it become effective? How; with an announcement in the Congressional Record?

More importantly, why assume that state legislatures have nothing better to do than to monitor Congress and the federal bureaucracy? They can’t even monitor their own state bureaucracies. Why assume that sufficient numbers of states would act in concert within only two years? Many state legislatures meet only once in two years, and many meet only for a very short time. For example, Nevada’s legislature meets only once every two years, for 120 days. That does not leave time to do their own work, let alone that of Congress.

This amendment would be difficult to act on even if there were another constitutional amendment to require that states shall take up resolutions to override federal laws and regulations.

11. An Amendment to Protect the Vote

SECTION 1:  Citizens in every state, territory, and the District of Columbia shall produce valid photographic identification documents demonstrating evidence of their citizenship, issued by the state government of the state in which the voter resides, as a requirement for registering to vote and voting in any primary or general election for President, Vice President, and members of the Congress.

SECTION 2:  Provisions shall be made by the state legislatures to provide such citizenship-designated photographic identification documents at no cost to individuals unable to afford fees associated with acquiring such documents.  

SECTION 3:  Early voting in any general election for President, Vice President, and members of Congress shall not be held more than 30 calendar days prior to the national day of election, except for active-duty military personnel, for whom early voting shall not commence more than forty-five calendar days prior to the national day of election.

SECTION 4:  Where registration and/or voting is not in person but by mail, citizens must submit an approved citizen-designated photo identification and other reliable information to state election officials to register to vote and request ballots for voting, no later than forty-five calendar days before the primary or general elections for President, Vice President, or members of Congress.  Registration forms and ballots must be returned and signed by the voter and must either be mailed or hand[delivered by the voter to state election officials.  If delivered by at third party, the voter must provide written authorization for the person making the delivery and the third party must sign a statement certifying that he did not unduly influence the voter’s decisions.

SECTION 5:  Electronic or other technology-based voting systems, for purposes of registering and voting in national elections, are proscribed unless a reliable identification and secure voting regimen is established by the state legislature.  

For all practical purposes, there is no difference between a voter photo ID and a state driver’s license or a state non-driving ID. You can’t function in modern society without one, unless you have very simple needs, live practically underground, and pay cash for everything. Therefore all objections to voter photo ID are bogus and are addressed in Section 2. The only question remains, with election campaigns going down to the very last second, with the threat of “October surprises” the norm in every election, what is the logic behind “early voting”? There is none. Absentee ballots are appropriate for people who know that for some very compelling reason (such as military service overseas) they won’t be present on election day to vote in person. Period. All others can vote in person on election day. This is not that complicated.

This amendment as written fails to specify that a voter must register to vote sometime well before election day, to give time for election officials to verify the eligibility of the voter to vote. Other parts of the Constitution reserve to the States the responsibility to qualify their residents for voting. Existing constitutional provisions, amendments and federal election laws clearly interfere with the states’ rights and duties to do so. Therefore this amendment should seize the opportunity to clarify whether the only valid election laws are at the federal level, or if States have the duty to qualify their voters, each in its own way.

Final Comment

This and other amendments are skirting around a fundamental issue in our current understanding of federalism. Are we “one nation, indivisible,” or are we a union of 50 sovereign States? Clearly the answer from the Democrats and other statists the answer is that we are one nation, therefore the only law that matters is federal law. According to the Constitution federal law has supremacy over state law, therefore according to this view the States themselves are obsolete, and therefore there has to be a federal law to govern absolutely everything that used to be the concern of the States. The issue is moot, according to the thinking of Democrats, RINOs and other progressives, because the Civil War has settled the issue of states’ rights once and for all. The most pessimistic predictions of the Founders, so well documented in this book, have come all too true. These amendments will do nothing to change that, for no other reason than the fact that the current establishment will never allow it, and even if it did, the process simply takes much too long.

Therefore I propose chipping away at the problem with the tools we have now.

(1) Use existing congressional budget authority to defund obamacare, the IRS, the EPA, the Department of Education, etc.

(2) Never pass a continuing resolution to extend the term of a budget.

(3) Replace obamacare with personal savings accounts dedicated to health care expenses.

(4) Repeal the law that created the income tax (the 16th Amendment was only the authorization to impose it, it did not mandate its imposition).

(5) Pass HR 25 or some other version of the Fair Tax.

(6) Bring the operations of federal bureaucracies to a halt by engaging in continuous and deeply detailed oversight.

(7) And last but not least, use the authority of Congress to sue the Executive in the Supreme Court for violations of the Constitution and federal law; tie up the DOJ with having to prove, in court, that the actions of federal agencies and federal officials are fully compliant with the Constitution and the laws that Congress passed.

This proposal is no more pie-in-the-sky than expecting that Congress or the States would ever call a second Constitutional Convention, or that such a convention would ever approve a set of amendments such as those proposed in this book.