The Liberty Amendments Part 1

The Liberty Amendments.

Mark R. Levin.

To My Beloved Family and Fellow Countrymen.

CHAPTER ONE.

RESTORING THE AMERICAN REPUBLIC.

I UNDERTOOK THIS PROJECT not because I believe the Const.i.tution, as originally structured, is outdated and outmoded, thereby requiring modernization through amendments, but because of the opposite-that is, the necessity and urgency of restoring const.i.tutional republicanism and preserving the civil society from the growing authoritarianism of a federal Leviathan. This is not doomsaying or fearmongering but an acknowledgment of fact. The Statists have been successful in their century-long march to disfigure and mangle the const.i.tutional order and undo the social compact. To disclaim the Statists' campaign and aims is to imprudently ignore the inventions and schemes hatched and promoted openly by their philosophers, experts, and academics, and the coercive application of their designs on the citizenry by a delusional governing elite. Their handiwork is omnipresent, for all to see-a centralized and consolidated government with a ubiquitous network of laws and rules actively suppressing individual initiative, self-interest, and success in the name of the greater good and on behalf of the larger community. Nearly all will be emasculated by it, including the inattentive, ambivalent, and disbelieving.

The nation has entered an age of post-const.i.tutional soft tyranny. As French thinker and philosopher Alexis de Tocqueville explained presciently, "It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd."1 Social engineering and central planning are imposed without end, since the governing masterminds, drunk with their own conceit and pomposity, have wild imaginations and infinite ideas for reshaping society and molding man's nature in search of the ever-elusive utopian paradise. Their clumsy experiments and infantile pursuits are not measured against any rational standard. Their piousness and sanctimony are justification enough.

Tocqueville observed further, "It would seem as if the rulers of our time sought only to use men in order to make things great; I wish that they would try a little more to make great men; that they would set less value on the work and more upon the workman; that they would never forget that a nation cannot long remain strong when every man belonging to it is individually weak; and that no form or combination of social polity has yet been devised to make an energetic people out of a community of pusillanimous and enfeebled citizens."2 Today Congress operates not as the Framers intended, but in the shadows, where it dreams up its most notorious and oppressive laws, coming into the light only to trumpet the genius and earnestness of its goings-on and to enable members to cast their votes. The people are left lamebrained and dumbfounded about their "representatives'" supposed good deeds, which usually take the form of omnibus bills numbering in hundreds if not thousands of pages, and utterly clueless about the effects these laws have on their lives. Of course, that is the point. The public is not to be informed but indoctrinated, manipulated, and misled.

Congress also, and often, delegates unconst.i.tutionally law-making power to a gigantic yet ever-growing administrative state that, in turn, unleashes on society myriad regulations and rules at such a rapid rate the people cannot possibly know of them, either-and if, by chance, they do, they cannot possibly comprehend them. Nonetheless, ignorance, which is widespread and deliberately so, is no excuse for noncompliance, for which the citizen is heavily fined and severely punished.

Not to be outdone, the current occupant of the Oval Office sees his primary duty as "fundamentally transforming the United States of America."3 By this, of course, President Barack Obama did not mean a fresh allegiance to the nation's founding principles and a new respect for the Const.i.tution's limits on federal authority, but the converse. He is more blatant and aggressive than his twentieth-century predecessors, but faithfully follows the footsteps of the most transgressive among them. The metamorphosis of the executive branch into an immense inst.i.tution exercising a conglomeration of powers, including lawmaking and decreeing, is clearly without const.i.tutional origin, a quaint notion mostly derided these days.

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. Notwithstanding Congress's delinquency, but because of it, an unquenched President Obama, in a hurry to expedite a societal makeover, has repeatedly admonished Congress that "[i]f [it] won't act soon to protect future generations, I will!"-that is, if Congress will not genuflect to his demands, and pa.s.s laws to his liking, he will act on his own.4 And the president has made good on his refrain. On a growing list of matters, he has, in fact, displayed an impressive apt.i.tude for imperial rule. With the help of a phalanx of policy "czars," from immigration, the environment, and labor law to health care, welfare, and energy, the president has exercised his executive "discretion" to create new law, abrogate existing law, and generally contrive ways to exploit legal ambiguities as a means to his ends. He has also declared the Senate in recess when it was not, thereby bypa.s.sing the Senate's const.i.tutional "advice and consent" role to install several partisans in top federal posts.

Today this is glorified and glamorized as compa.s.sionate progressivism. The Framers called it despotism. In Federalist 48, James Madison, considered the father of the Const.i.tution, wrote, "An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."5 The third branch of the federal triarchy, the judiciary, is no better. Among the biggest myths is that the men and women of the judiciary, operating under monklike conditions, would dutifully and faithfully focus their undivided mental faculties toward preserving the Const.i.tution. They would apply their expertise, experience, and insight free from the political pressures and biases of elections and the legislative and executive branches of government, and within a narrow scope of authority and purpose. Moreover, it was a.s.sumed there was little to fear from this part of government. In Federalist 78, Alexander Hamilton explained, "Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Const.i.tution; because it will be least in a capacity to annoy or injure them."6 Yet, having seized for itself in the early years of the nation the final word on all matters before it, the Supreme Court with just five of its nine members can impose the most far-reaching and breathtaking rulings on the whole of society, for which there is no effective recourse.

It turns out that justices are also G.o.d's children; and being of this world, their makeup consists of actual flesh and blood. They are no more n.o.ble or virtuous than the rest of us, and in some cases less so, as they suffer from the usual human imperfections and frailties. And the Court's history proves it. In addition to delivering the routine and, in some cases, exceptional rulings, the Court is responsible for several notorious holdings, including Dred Scott v. Sandford7 (endorsing slavery), Plessy v. Ferguson8 (affirming segregation), and Korematsu v. United States9 (upholding the internment of Americans), among others. During the last eighty years or so, the justices have rewritten sections of the Const.i.tution, including the Commerce Clause (redefining noncommerce as commerce) and the tax provisions (redefining penalties as taxes), to accommodate the vast expansion of the federal government's micromanagement over private economic activity. Moreover, the justices have laced the Court's jurisprudence with all manner of personal policy preferences relating to social, cultural, and religious issues, many of which could have been avoided or deferred.

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 illimitable regulatory activity, with which the federal government torments, hara.s.ses, and coerces the individual's private and economic behavior, is the progeny of a colossal federal edifice with inexhaustible energy for societal manipulation and change. In order to satisfy its gluttonous appet.i.te for programmatic schemes, the federal government not only hurriedly digests the Treasury's annual revenue, funded with confiscatory taxes on a diminis.h.i.+ng number of productive citizens, but desserts on the wealth not yet created by generations not yet born with unconstrained indebtedness. And what havoc has this wrought.

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 acc.u.mulated unfunded liabilities for ent.i.tlement programs exceeding $90 trillion, which is growing at $4.66.9 trillion a year.13 There is not enough money on the planet to make good on the federal government's financial obligations. Hence, the Federal Reserve Board has swung into action with multiple versions of "quant.i.tative easing," which is nothing more than the federal government monetizing its own debt-or buying its own debt-with a combination of borrowing, issuing itself credit, and printing money amounting to trillions of dollars.14 Of course, this has the eventual effect of devaluing the currency, fueling significant inflation or deflation, and destabilizing the economy at some future point.

But like the laws of physics, there is no escaping the laws of economics. As these fiscal and monetary malpractices escalate, for there is no end in sight, the federal government will turn increasingly reckless and demanding, taking an even harder line against the individual's acc.u.mulation of wealth and retention of private property. For example, when the federal income tax was inst.i.tuted 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 inst.i.tuting 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. Moreover, unable to print money, their day of reckoning is either looming or arrived. Therefore, bank accounts, other investments, and wealth generally are subject to governmental impoundment, sequester, and theft. The individual's liberty, inextricably linked to his private property, is submerged in the quicksand of a government that is aggregating authority and imploding simultaneously.

What, then, is the answer? Again, Tocqueville offers guidance. Looking back at the Const.i.tutional Convention some fifty years afterward, he observed that "it is new in history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of its government are stopped, to see it carefully examine the extent of the evil, and patiently wait two whole years until a remedy is discovered, to which it voluntarily submitted without its costing a tear or a drop of blood from mankind."17 It is asking too much of today's governing masterminds and their fanatical adherents to reform the product of their own fatuity-that is, the continuing disa.s.sembly of the Const.i.tution and society. After all, despite one credible source after another, both within and outside the federal government, ringing alarm bells about the nation's hazardous track-describing it as unsustainable, desperate, and immoral-they are blinded to reason, experience, and knowledge by their political DNA and ideological invincibility and therefore are intransigent to effective ameliorative steps. They long ago renounced by word and action their adherence to the Const.i.tution's confinements since the Statists' utopia and the Framers' Const.i.tution cannot coexist.

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. Unlike the radicalism of the governing masterminds, who self-servingly oversee a century-old, perpetual counterrevolution against the American dawn, the people must have as their goal the reestablishment of the founding principles and the restoration of const.i.tutional republicanism, thereby nurturing the individual and preserving the civil society. This requires, first, an acknowledgment of the federal government's unmooring from its const.i.tutional foundation; second, an acceptance that the condition is urgent and, if untreated, will ultimately be the death knell of the American Republic; third, the wisdom to rebalance the government in a way that is without novelty and true to the Framers' original purpose; and, fourth, the courage to confront-intellectually and politically-the Statists' stubborn grip on power.

There is a path forward but it requires an enlightened look back at our founding. And what we find is that the Framers rightly insisted on preserving the prominent governing role of the state legislatures as a crucial mechanism to containing the power of the proposed new federal government. In fact, other than the limited, specified powers granted to the federal government, the states retained for themselves plenary governing authority. The debates during the Const.i.tutional Convention and the state ratification conventions are unequivocal in this regard. During the ratification period, the Federalists repeatedly a.s.sured 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 Const.i.tution 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 a.s.serted 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."20 Madison's declarations were not unique among the Const.i.tution's proponents but rather were commonplace. And without these a.s.surances-and the additional pledge that the First Congress would offer amendments to the Const.i.tution further ensuring that individual and state sovereignty would be safeguarded against the new federal government (what became the Bill of Rights, including the Ninth and Tenth Amendments)-the Const.i.tution would not have been ratified. Thus, the Const.i.tution, drafted by delegates who were sent by the states to Philadelphia in 1787 and ratified subsequently by delegates in the state conventions, preserved the decisive role of the states in the American Republic.

It requires emphasis that the states established the American Republic and, through the Const.i.tution, retained for themselves significant authority to ensure the republic's durability. This is not to say that the states are perfect governing inst.i.tutions. Many are no more respectful of unalienable rights than is the federal government. But the issue is how best to preserve the civil society in a world of imperfect people and inst.i.tutions. 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.

Unlike the modern Statist, who defies, ignores, or rewrites the Const.i.tution for the purpose of evasion, I propose that we, the people, take a closer look at the Const.i.tution for our preservation. The Const.i.tution 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.

Article V sets forth the two processes for amending the Const.i.tution, the second of which I have emphasized in italics: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Const.i.tution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Const.i.tution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . .21 Importantly, in neither case does the Article V amendment process provide for a const.i.tutional convention. It provides for two methods of amending the Const.i.tution. The first method, where two-thirds of Congress pa.s.ses a proposed amendment and then forwards it to the state legislatures for possible ratification by three-fourths of the states, has occurred on twenty-seven occasions. The second method, involving the direct application of two-thirds of the state legislatures for a Convention for proposing Amendments, which would thereafter also require a three-fourths ratification vote by the states, has been tried in the past but without success. Today it sits dormant.

The fact is that Article V expressly grants state legislatures significant authority to rebalance the const.i.tutional 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 Const.i.tutional Convention on May 29, 1787, by Edmund Randolph, governor of Virginia, as a proposal in the so-called Virginia Plan drafted by Madison.

Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the a.s.sent of the National Legislature ought not be required thereto.22 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.

Col: Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in any easy, regular and Const.i.tutional way than to trust to chance and violence. It would be improper to require the consent of the Natl Legislature, because they may abuse their power, and refuse their consent on that very account. . . .23 Later, when the delegates returned to the issue, Roger Sherman of Connecticut-who had been a member of the Committee of Five, which helped draft the Declaration of Independence, and who coauth.o.r.ed the so-called Connecticut Plan, which served as the basis for our bicameral Congress-offered an alternative in which Congress would propose amendments and the states would ratify them. Madison suggested dropping the state convention altogether.

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 Const.i.tution 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 Ma.s.sachusetts] moved to amend the article so as to require a Convention on application of 2/3 of the Sts [states].25 Earlier, Pennsylvania's James Wilson, among the most active partic.i.p.ants at the Const.i.tutional Convention, had "moved to insert 'three fourths of' before the words 'several States,'" which was adopted and then ultimately added as a requirement for both amendment processes under Article V.26 Consequently, under both amendment procedures, the Const.i.tution requires that three-fourths of the states ratify amendments, either by their state legislatures or state conventions.

I was originally skeptical of amending the Const.i.tution by the state convention process. I fretted it could turn into a runaway caucus. As an ardent defender of the Const.i.tution who reveres the brilliance of the Framers, I a.s.sumed 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 Const.i.tution.

After more research and reflection, the issue crystallized further. If the Framers were alarmed that states calling for a Convention for proposing Amendments could undo the entire undertaking of the Const.i.tutional Convention, then why did they craft, adopt, and endorse the language? In Federalist 43, Madison considered both Article V amendment processes equally prudent and judicious. He wrote, in part, "That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Const.i.tution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. . . . "27 There are other reasons for a.s.suaging 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 const.i.tution 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.29 In addition, Congress's role in the state application process is minimal and ministerial. It could not be otherwise, as the Framers and ratifiers adopted the state convention process for the purpose of establis.h.i.+ng an alternative to the congressionally initiated amendment process. It provided a const.i.tutional solution should "the [federal] Government . . . become oppressive."30 The text and plain meaning of Article V are inarguable. 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 Const.i.tution, 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 I have no illusions about the political difficulty in rallying support for amending the Const.i.tution by this process. After all, all past efforts have fallen short. And the governing masterminds and their disciples are more powerful and strident than ever. There is no doubt that their resistance will be stubborn and their tactics desperate as they unleash the instrumentalities of the federal government and the outlets of a corroboratory media to vanquish such a movement and subdue the public. Having rejected the Const.i.tution's limits, they will not be persuaded by references to its text and history. Their evasion has been their design. Others who self-identify as originalists, const.i.tutionalists, and conservatives in a.s.serting allegiance to the Const.i.tution, as I do, might nonetheless be wary of or opposed reflexively to the state convention process for several reasons, including their unfamiliarity with its history and workings. Perhaps, in time, their high regard for the Const.i.tution will persuade them of the judiciousness in resorting to it before there is little left of it. Still more may be resigned to a grim future, preferring lamentation to the hard work of purposeful action. And, of course, there are always the unmindful and content.

Whatever the reasons, there are also untold numbers of citizens who comprehend the perilousness of the times and circ.u.mstances, and the urgency of drawing the nation's attention to the restoration of const.i.tutional republicanism. This book is an appeal to them. The Framers antic.i.p.ated 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 Const.i.tution-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 any event, should there come a time, sooner or later, when the states convene a convention, these amendments or amendments of the same nature-as I make no claim of una.s.sailable knowledge-may prove useful and find their way into the debate. But a plan is what is needed, as is a first step. This is mine.

CHAPTER TWO.

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 inc.u.mbent 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.

IN 2010, THE YEAR of a Republican tidal wave, 85 percent of inc.u.mbents from both parties were reelected. Three hundred ninety-seven members of the House of Representatives in the 111th Congress ran for reelection and 339 won. The story in the Senate was almost a mirror image of the House. A third of the seats in the Senate were up for election. Twenty-five inc.u.mbents stood for reelection and twenty-one won. The Senate's inc.u.mbent reelection rate was 84 percent.1 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 const.i.tutional 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 members.h.i.+p of the Soviet Politburo."3 And little has changed since.

In theory, there is nothing wrong with keeping a good public servant in office for as long as the official and we, the voters, want him there. New does not necessarily mean better, and often it can mean worse. And in our country, where the people regularly get to vote for members of the House and Senate-within very basic qualifications like age, citizens.h.i.+p, and residency-whomever voters choose to represent them should be up to them, right?

The problem is that theory can be a cruel mistress when it comes to reality, in which unexpected consequences often prevail. America has never been a pure democracy and majoritarianism has always been as much feared as monarchism. Moreover, our supposedly broad parameters of "choice" at the ballot box have actually caused a dramatic narrowing of electoral options for voters. Putting aside the media histrionics over "divided" government and the "dysfunctional" relations.h.i.+ps between the two houses of Congress, these inst.i.tutions are populated by a cla.s.s of elected officials who jealously covet the power of public office.

Through gerrymandering of House districts, patronage, a barrage of self-serving free and paid media, and fund-raising advantages, inc.u.mbents are able to extend their hold on federal office. Furthermore, inc.u.mbents often use their positions as lawmakers to promote federal spending and legal initiatives that benefit their personal longevity in office, making it increasingly difficult for successful electoral challenges. 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 a.s.sign legal rights to various political and electoral const.i.tuencies and would-be const.i.tuencies. 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 const.i.tuencies 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.

The consequences of these and other practices addressed by The Liberty Amendments have been extremely detrimental to our society, as measured by, among other things, the ever-more-centralized and coercive power of the federal government, unsustainable fiscal and monetary policies, and myriad statutes and regulations issued by a maze of federal departments and agencies. The ultimate costs are borne by the individual in lost liberties and property. Thus, while there are a host of complex circ.u.mstances that brought us to our current state, much of it would not be possible but for an increasingly insulated cla.s.s of governing masterminds who use lawmaking and the public purse to empower themselves. It is apparent that in Was.h.i.+ngton and most political capitals TIME in office = POWER.

An important antidote is congressional term limits, which slowly displaces a self-perpetuating ruling cla.s.s 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. University of California, Irvine, professor Mark P. Petracca explains that this rotation of citizen-representatives is central to a republic. "The oft-touted expertise of professional politicians as representatives stands in stark contradiction to the essential function of political representation in a democratic republic, namely, to connect the people to the government through representatives who share their values and stay in touch with the reality of their day-to-day lives."4 Congressional terms limits alone are not enough to rebalance our governing system, but they are a necessary and critical building block.

Term limits were not included in the Const.i.tution as originally adopted and ratified, but they were recognized commonly as curbing the use and abuse of governmental power at the time of the Const.i.tutional Convention. Benjamin Franklin, the primary author of the Pennsylvania Const.i.tution, included an article preventing anyone from serving in the Pennsylvania General a.s.sembly more than four years out of any seven.5 The twelve-member executive council for the commonwealth also required that members serve no more than one three-year term, and then be off the council for an additional four years.6 In addition, the Articles of Confederation, the first governing doc.u.ment the nascent republic adopted shortly after declaring its independence, also included a restriction on service in the Congress, the unicameral governing body made up of delegates from the thirteen states. Article V of the Articles stated that "no person shall be capable of being a delegate for more than three years in any term of six years. . . . "7 The prevailing concern at the outset of the Const.i.tutional Convention was that the new central government possess sufficient authority to overcome the weaknesses of the Articles of Confederation, but not denude the states of their independent and exclusive authority to administer a broad array of governmental functions. Hence, more attention was focused on devising the "checks and balances" within the federal government and securing state sovereignty through federalism to prevent abuse.

In the Const.i.tutional 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 pa.s.sions 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. The vast number of such places it is that renders the British Government so tempestuous. The struggles for them are the true sources of all of those factions which are perpetually dividing the Nation, distracting its Councils, hurrying sometimes into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace.

And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate; the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong pa.s.sions and indefatigable activity in their selfish pursuits. These will thrust themselves into your Government and be your rulers-And these too will be mistaken in the expected happiness of their situation: For their vanquished compet.i.tors of the same spirit, and from the same motives will perpetually be endeavouring to distress their administration, thwart their measures, and render them odious to the people.

Franklin continued: Besides these evils, Sir, tho' we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. Reasons will never be wanting for proposed augmentations. And there will all always be a party for giving more to the rulers, that the rulers may be able in return to give more to them.-Hence as all history informs us, there has been in every State & Kingdom a constant warfare between the governing and the governed: the one striving to obtain more for its support, and the other to pay less. And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the Princes, or enslaving the people. Generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. The more the people are discontented with the oppression of taxes; the greater the need the prince has of money to distribute among his partisans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. There is scarce a king in a hundred who would not, if he could, follow the example of the Pharaoh, get first all the people's money, then all their lands, and then make them and their children servants for ever. It will be said, that we don't propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. I am apprehensive therefore, perhaps too apprehensive, that the Government of these States, may in future times, end in a Monarchy. But this Catastrophe I think may be long delayed, if in our proposed System we do not sow the seeds of contention, faction & tumult, by making our posts of honor, places of profit. . . .8 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 inc.u.mbent. And that was, and is more so today, a valid objective.

In fact, as Professor Petracca recounts, there was a tradition of rotation that grew during the American Revolutionary period. "[T]he expectation or requirement that elected officials would soon 'return' to 'private life' or 'private station' was contained in the bills of rights accompanying six of the new state const.i.tutions adopted from 1776 to 1780. The Virginia Bill of Rights . . . provided that members of the legislature and executive 'may be restrained from oppression, by feeling and partic.i.p.ating the burdens of the people, they should, at fixed periods, be reduced to private station' (1776, section 5). Similar provisions appeared in the bills of rights accompanying the const.i.tutions of Pennsylvania (1776, articles 19 and 11); Delaware (1776, article 4); New York (1777, article 11); South Carolina (1778, article 9); and Ma.s.sachusetts (1780, article 8)."9 Thomas Jefferson was a longtime proponent of rotation. In a reply letter to James Madison, commenting on the proposed Const.i.tution, 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. . . . "10 In February 1800, Jefferson explained to Samuel Adams that "[a] government by representees, elected by the people at short periods, was our object, and our maxim at that day was, 'Where annual election ends, tyranny begins'; nor have our departures from it been sanctioned by the happiness of their effects. . . . "11 Numerous delegates to the Const.i.tutional 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 Const.i.tution for mandatory rotation or term limits. However, it would be erroneous to conclude from its absence that the matter of term limits was considered and rejected. The concept of representation at the time was not one of "professional" or lifetime "public service" but citizen partic.i.p.ation and part-time service. Moreover, the relatively short terms established for members of the House and the president, and even the six-year term for senators elected by the state legislatures, was thought to ensure a regular and steady turnover of officeholders. And life expectancy was much shorter than today.

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. There were few occasions in which the average length of service approached two terms, but no more than a handful out of some 56 sessions. . . . 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."12 George Was.h.i.+ngton's approach to the presidency reflected the mind-set of the period. While there was no const.i.tutional stricture at the time on how many terms a president may serve, Was.h.i.+ngton set the precedent that reflected both the public's general perception of how long a president should serve-two four-year terms-and how long the body politic would consider someone electable.

This perspective, respecting presidential power in particular, operated for almost a century and a half, until Franklin Roosevelt ran for and won a third term in 1940. He went on to win a fourth term in 1944, but served only a few months of that term before he died in office on April 12, 1945.

Shortly after World War II, when the Republican Party captured control of both houses of Congress, there was strong sentiment that President Was.h.i.+ngton's precedent of serving only two terms should be codified in order to prevent future presidents from holding power too long. This led to the Twenty-Second Amendment to the Const.i.tution, which was ratified on February 27, 1951.13 It limits a president to two terms or, in the case of a vice president who has a.s.sumed the office because of the death, resignation, impeachment conviction, or disability of a predecessor, two terms and the predecessor's term, if the term is more than half over.14 A vice president may serve only one term and the remainder of the previous inc.u.mbent's term, if that term is less than half completed.15 Although limiting a president's term of service, Congress did not address the longevity of its own members.

There are really only two ways to curb prolonged inc.u.mbency: 1) limit who is eligible to seek and hold a position of power; and/or 2) establish explicit, definitive mechanisms in the operation of government that constrain the power of the officeholder. The Framers attempted to control the purview of the federal government through a carefully balanced retinue of checks on each branch of the federal government's power. These divisions of enumerated authority between the branches meant that no one part of government could dominate the others or subsume the states' power. In this way, the civil society and individual sovereignty could be preserved. The blueprint for this system, the Const.i.tution, was the greatest mechanism for human governance ever created.

The problem today, however, is that we have had a century or more of elected officials who have incrementally dismantled the Const.i.tution's structure, leaving us-as I wrote in Ameritopia-in a post-const.i.tutional 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. The size of the national government, as well as its reach, was kept small and intentionally curtailed. Moreover, the notion of a career in elective office, in the context of a const.i.tutional republic, was both foreign and incongruous.

An excellent example of the mind-set of the Founders toward government service was the manner of compensation established for our national elected officials. President Was.h.i.+ngton's salary was $25,000 per year, plus expenses-a generous but not lavish sum in 1789.16 There was, however, some debate about a fair wage for his vice president, John Adams. Some in Congress wanted to pay him on a per diem basis, for each day he actually worked at being a heartbeat away from the presidency. After some debate, Congress provided Adams with an annual salary of $5,000.17 The First Congress was a bit more penurious with its own compensation. Senators and representatives were given six dollars for each day Congress was actually in session. And up until the beginning of the twentieth century, Congress was seldom in session more than an average of about four months per year. In fact, between the beginning of the First Congress in 1789 and 1855, members of Congress were paid the same six-dollars-per-diem salary-except for 181517, when Congress voted itself a $1,500 annual paycheck. After 1855, members were paid $3,000 per year.18 The citizenry's basic antipathy against marshaling power in a single individual's hands was also reflected in their choices for president. From 1836 to 1868, only one candidate was elected to the presidency more than once-Abraham Lincoln.

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 federal income tax and the repeal of the Seventeenth Amendment and state representation in the Senate, among other things, contributed to the unleas.h.i.+ng of infinite and unfinished acts of centralized government. The very nature of representative government under the Const.i.tution, 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.

Consequently, citizen legislators, rotating back to their communities after a short period of public service-considered an indispensable and routine characteristic and design of representative government at the time of the founding, and for a century thereafter-have been replaced with a professional ruling cla.s.s led by governing masterminds. For the most part, they are isolated from the communities from which they hail and are consumed with the daily jockeying for position and power within their ranks. Moreover, they both pander to and lord over their const.i.tuents.

This proposed amendment limits the length of time an individual can serve in Congress to up to a total of twelve years, whether such service is exclusively in one House or combined in both Houses. Beyond that, an inc.u.mbent is ineligible to run again. Although imperative to reestablis.h.i.+ng 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 munic.i.p.al, county, and town governing bodies.

Benjamin Franklin put term limits in the proper context. On July 26, 1787, at the Const.i.tutional Convention, he said: "It seems to have been imagined by some that the returning to the ma.s.s 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."23 The consent of the governed is the hallmark of a const.i.tutional republic. Yet it seems the American people have lost faith in Congress as an inst.i.tution. Congress, which is supposed to reflect the will of the people better than the other branches of the federal government, is consistently rated very poorly by the citizenry. The level of public disenchantment is significant. Congress's approval averaged 14 percent for the first part of 2013, 15 percent in 2012, 17 percent in 2011, and 19 percent in 2010.24 The longevity of inc.u.mbency has created a cla.s.s of professional politicians who operate at an increasing distance from their const.i.tuents. Term limits, and the more frequent rotation of individuals in and out of Congress, provide a remedy consistent with the Framers' intent and approach to representative government.

CHAPTER THREE.

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 Const.i.tution.

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 office by a two-thirds vote of the state legislature.

AN AMENDMENT TO THE U.S. Const.i.tution 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-const.i.tutional nation.

The amendment in question is the Seventeenth, ratified April 8, 1913. Its language is deceptively uncomplicated: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Const.i.tution.

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.1 Considered by itself, the Seventeenth Amendment seemed reasonable enough-which is why it was ratified in near-record time. 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? The fact that the Framers established a different method for choosing senators, and considered that method critical to the proper functioning of the federal government, was of no consequence.

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 dispa.s.sionate, considered judgment through a stable and diffused governing construct.

The simple, logical elegance of the organization of the Senate belied the extent and pa.s.sion of the discussions over its creation, both at the Const.i.tutional Convention in Philadelphia in 1787 and in the state ratification conventions. Like nearly every clause in the Const.i.tution, the Framers intended that the nature and operation of the Senate serve several functions simultaneously. Providing the state governments with direct input in the national government was not only an essential check on the new federal government's power, but also a means by which the states could influence congressional lawmaking, without stripping the federal government of its enumerated primacy over certain matters of governance. Moreover, the equal representation in the Senate provided the less populated states with a critical limit on the possibility that the more populated states would hold powerful sway over the affairs of the nation. In addition, the small size and relative stability of the Senate created an inst.i.tutional means for tempering fleeting majoritarian or factional pa.s.sions. There was also strong sentiment among the convention delegates that the Senate, by virtue of its limited size and exclusive members.h.i.+p, could serve as a de facto privy council for the president.

At the outset of the Const.i.tutional Convention, 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, auth.o.r.ed 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. While no specific terms of office were proposed in the Virginia Plan, it was largely understood that the members of the smaller "upper" house (Senate) would serve longer than their counterparts in the lower house (House of Representatives).2 The initial discussions on the Virginia Plan presented an interesting dichotomy of perspectives on the roles of the two houses of the national legislature. Madison argued strenuously for the election of the House by the people: "Mr. Madison considered the popular election of one branch of the National Legislature as essential to every plan of free Government"3 and for "refining the popular appoints by successive filtrations . . . to be resorted to only in the appointment of the second branch of the Legislature, and in the Executive & Judiciary branches of the Government."4 Elbridge Gerry, a delegate from Ma.s.sachusetts and future vice president of the United States, "did not like the election by the people. . . . Experience had shown that the State legislatures drawn immediately from the people did not always possess their confidence. He had no objection however to an election by the people if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number out of which the State legislatures should be bound to choose."5 In the convention's first vote on the election of the larger house of Congress by the people, the vote was six states voting yes, two voting no, with two divided.6 The convention then addressed the resolution in the Virginia Plan, calling for the election by the second house of the national legislature (the Senate) by the first (the House). Richard Spaight, a delegate from North Carolina, moved to amend the resolution to say that the second branch be chosen by the state legislatures.7 South Carolina delegate Pierce Butler "apprehended that the taking so many powers out of the hands of the States as was proposed, tended to destroy all that balance and security of interests among the States which is necessary to preserve; and called on Mr. Randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to a.s.sign to the second branch."8 Randolph stated that, while he had not had in mind a specific number, "it ought to be much smaller than that of the first; so small as to be exempt from the pa.s.sionate proceedings to which numerous a.s.semblies are liable. He observed that the general object was to provide a cure for the evils under which the U.S. labored; that in tracing these evils to their origin every man had found in the turbulence and follies of democracy: that some check therefore was to be sought for against this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose."9 Similar expressions arose throughout the convention whenever discussion of the provenance of the Senate took place. On June 7, Delaware's John d.i.c.kinson 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 d.i.c.kinson related the upper house (Senate) to the British houses of commons and lords, "whose powers flow from different sources, are mutual checks on each other, and will thus promote the real happiness and security of the country-a government thus established would harmonize the whole."11 Elbridge Gerry, a skeptic throughout the convention (and, incidentally, one of only three delegates who stayed to the end and refused to sign the final Const.i.tution), added that "the great mercantile interest and of stockholders, is not provided for in any mode of election-they will however be better represented if the State legislatures choose the second branch."12 George Mason of Virginia, an inveterate populist, changed his thinking and supported the motion. "Mr. Mason then spoke to the general question-observing on the propriety, that the second branch of the national legislature should flow from the legislature of each State, to prevent encroachments on each other and to harmonize the whole."13 Rufus King of Ma.s.sachusetts made his own notes of the early debate about the means by which senators should be chosen. On the motion that there should be a large number of senators to ensure representation in the body of as many of the leading families and interests in the country as possible, King quoted Madison as saying, "The Senate should come from, and represent, the wealth of the Nation, and this being the Principle, the proposed amendment cannot be adopted.-besides the numbers will be too large-History proves this proposition, that delegated power has most weight and consequence in the hands of a few. The Roman tribunes when few, checked the Senate-when numerous, they divided, became weak and ceased to be the Guardians of the People, which was the object of their inst.i.tution."14 Pennsylvania's James Wilson also proffered his views on a national legislative body elected by the more numerous, popularly elected House or by the state legislatures. "I well know that all confederations have been destroyed by