Mark Levin, in his best-selling book The Liberty Amendments, is absolutely right about two things: First, the Courts, president, and Congress are not playing the roles assigned to them by the Constitution. The Court is deciding the country’s social and cultural issues; the president freely amends laws and drops Tomahawk missiles on people without going to Congress; and Congress’s job, by their own lights, is to get reelected by passing off all controversial issues to the Court and the president. So alienated is the public that when asked whether they “think the government is trying to act in the public’s interest most of the time,” only 19 percent answer yes.
And second, the Senate for 40 years has been an obstacle to critical constitutional amendments on a balanced budget and term limits. The Senate rejected Sam Nunn’s balanced budget amendment in 1994, 1995, and 1996. Had it not done so, all our deficits and the $17 trillion debt run up by Presidents Bush and Obama could have been avoided or substantially reduced.
So, Mr. Levin has put his finger on two big problems. What does he want to do about it? He proposes we use a constitutional-amendment process that has never been used before.
Article V of the Constitution provides for two methods of amendment. In one method, Congress by a two-thirds vote of both houses may propose an amendment to the states that will become effective when three fourths of the states ratify it; all 27 amendments have been adopted this way. In the other method, Congress, upon application of two thirds of the states, “shall call a Convention,” which may propose amendments to the states that will become effective when three fourths of the states ratify them.
Mr. Levin proposes that, for the first time, we use the convention method, so that his proposals can be sent directly to the states. He outlines an ambitious plan to allow “the people, through our state legislatures—and the state legislatures, acting collectively . . . to constrain the federal government, reestablish self-government, and secure individual sovereignty.” The amendments he proposes, with relevant supporting quotations from the Founding Fathers, call for establishing term limits for Congress, ending direct election of senators, establishing term limits for Supreme Court justices and legislative override of decisions, limiting taxing and spending, limiting federal bureaucracy, promoting free enterprise, protecting private property, granting the states the authority to amend the Constitution directly, granting the states the authority to check Congress, and protecting the vote. Mr. Levin believes his amendments will restore the states and the three branches of the federal government to their original roles.
The virtue of Mr. Levin’s overall proposal is that it does not require a two-thirds vote of the Senate, which has been the graveyard of needed constitutional amendments. The states would very likely have ratified amendments dealing with a balanced budget, term limits, unfunded mandates, and school prayer if the measures could have escaped the Senate.
The difficulty is that Mr. Levin cannot entirely escape Capitol Hill. Mr. Levin calls the role of Congress “minor and ministerial.” That is wishful thinking. Congress, we can assume, will be hostile to a convention intended to limit congressional power. Will Congress be able to express its hostility by gumming up the procedure? Undoubtedly. The Constitution does give Congress the sole authority to call a constitutional convention. But the Constitution does not specify how the call is to be made and what directions it should contain. By defining how delegates are selected or circumscribing the scope of the convention itself, Congress can reduce the chances that any amendment unsatisfactory to Congress would be approved. It could, for example, specify proportional representation for the formation of the state delegations. During the 1787 Convention James Madison—in a quotation not mentioned by Mr. Levin—criticized the vagueness of the convention method: “How was a convention to be formed? By what rule decided? What is the force of its acts?” Madison’s questions remain unanswered. The point is that all three national branches will be motivated to sabotage it.
But the real problem with the convention method is that very few people want a convention. We have no modern counterparts to Washington, Franklin, Madison, and Hamilton. Certainly, Donald Trump, Anthony Weiner, Al Sharpton, and Eliot Spitzer won’t do.
Mr. Levin’s main mistake, though, is failing to realize that the existing Constitution is not the obstacle to reform. The problem is not structural; it’s cultural.
The Republicans look set to control the House for the foreseeable future. Charles Cook reports that the Democrats have 136 safe seats, while the Republicans have 183. Cook notes,
When one party starts out with 47 more very strong seats than the other, the numbers suggest that the fix is in for any election featuring a fairly neutral environment. Republicans need to mess up pretty badly to lose their House majority in the near future.
Republicans, it would seem, should get a copy of the Constitution to see what powers the House has.
Mr. Levin is also taking the long way around the barn. There are easier ways to accomplish most of what he wants. Congress has successfully misled the public by giving it the impression that, because of the theory of separation of powers, it has no power over the judiciary. But Article III grants Congress almost absolute power over the courts. Congress created the lower federal courts in the Judiciary Act of 1791. It could repeal that act and abolish those courts tomorrow. Indeed, at the Philadelphia Convention, a proposal to mandate constitutionally a lower federal-court system was debated and rejected. Congress could also repeal the Supreme Court’s power to hear appeals from state and federal courts. If Congress does that, the Court is limited to its constitutionally granted “original” jurisdiction: cases involving ambassadors and those in which a state is a party.
In 1958, Harvard Law Prof. Arthur E. Sutherland wrote,
while strictly speaking the Constitution can only be amended by the process described in Article V in practical effect the Congress can make rather drastic changes in our constitutional balance by its control over the jurisdiction of the federal courts.
Most of Mr. Levin’s amendments could, as a practical matter, be enacted by stripping the Supreme Court of its power of judicial review. As special assistant to the attorney general in 1981, future Chief Justice John Roberts wrote a 27-page memorandum on the efficacy of jurisdiction strippers. He noted the Court’s only authority to interpret the Constitution derived from the need to decide the case before it. If jurisdiction is stripped, there is no case to decide. “The Exceptions Clause of Article III,” Roberts explained, “stands as a plenary grant of power to Congress to make exceptions to the appellate jurisdiction of the Supreme Court.” Some, of course, will argue that stripping the Court of jurisdiction “would undermine the constitutional role of the Court as the ultimate arbiter of constitutional questions.” But, as Roberts noted, the Constitution “does not accord such a role to the Court.” Roberts concludes, “If the necessity of interpreting the Constitution is removed, as it would be if the Court were divested of jurisdiction, the basis for the Court’s role as final arbiter of the Constitution is removed.”
Mr. Levin proposes multiple constitutional amendments. But only one amendment is needed. Article V of the Constitution is flawed because it gives Congress a gatekeeper role before amendments can be sent to the states. That is like asking the fox to guard the henhouse. Madison’s proposed Article V allowed the states to adopt amendments to limit the federal government without federal government involvement. The Virginia Plan in the early days of the Philadelphia Convention contained Madison’s proposal. The Committee on Style followed through on Madison’s idea: “Congress, whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to the Constitution.” A last-minute motion by Federalist Gouverneur Morris of New York and Elbridge Gerry of Massachusetts inserted the requirement that a convention be held. The change made the process so complicated and uncertain that it has never been used. Nor will it be. Reinstating Madison’s version of Article V—two thirds of the states may propose an amendment, which three quarters of the states can ratify—would go a long way to restoring power to the states. If three fourths of the states want to amend the Constitution, they should be able to.
Mr. Levin’s book needs to be read for its stated purpose—to get the conversation started. If you are looking for practical solutions, however, you will be disappointed. The solution Mr. Levin seeks is in the Constitution, just not in Article V.
[The Liberty Amendments, by Mark R. Levin (New York: Threshold Editions) 272 pp., $26.99]