levin’s risky proposal

7/26/2019 Levin’s Risky Proposal

http://slidepdf.com/reader/full/levins-risky-proposal 1/8

by Larry Greenley

The Liberty Amendments: Restoring the

American Republic, by Mark R. Levin,New York, N.Y.: Threshold Editions,2013, 272 pages, hardcover.

W hen talk-show host Mark Levin’slatest book, The Liberty Amend-

ments, was released to the publicin mid-August, its rapidly spreading impactamong the despairing conservative throngsresembled the effect of dropping a lighted

match on great quantities of dry tinder.The rapidly developing impact was greatlyenhanced by the endorsement of Levin’sproposal for an Article V constitutionalconvention by three of the most popularconservative talk-show hosts: Rush Lim-baugh, Sean Hannity, and Levin himself.

It is very apparent that this national phe-nomenon is due to the book’s provision ofa program of action that promises to reinin the federal government. In a nutshell,Levin’s solution to our out-of-control fed-eral government involves: (1) getting an

Article V convention for proposing amend-ments (popularly known as a “constitution-al convention”) convened, as discussed inchapter one; and (2) getting some amend-ments proposed (and sent to the statesfor ratification) at such a convention toaddress the problem of an out-of-controlfederal government, such as his 11 amend-ment proposals as discussed in chapterstwo through 11. Since we disagree withhis proposal for an Article V convention,we won’t be spending much time on the 11

amendments; however, we definitely agreewith him that repealing the 17th Amend-ment would be a good idea.

During a whirlwind review in chapterone of the seemingly endless ways in whichthe federal government is departing fromthe Constitution, Levin accurately observes:

Having delegated broad lawmakingpower to executive branch depart-ments and agencies of its own cre-ation, contravening the separation-of-powers doctrine, Congress now

watches as the president inflates thecongressional delegations [of powerto the executive branch] even furtherand proclaims repeatedly the authori-ty to rule by executive fiat in defianceof, or over the top of, the same Con-gress that sanctioned a domineeringexecutive branch in the first place.

A Constitutional Convention?A few pages later, Levin reveals that hissolution to this problem of an out-of-con-trol federal government is to amend the

Constitution by utilizing the provision inArticle V for convening “a Convention forproposing Amendments” based on the di-rect application to Congress of two-thirdsof the state legislatures.

At this point he takes a little preemp-tive shot across the bow of the numerousconstitutionalists who have been opposingsuch a convention over the past 30 yearsby quoting Article V with its two meth-ods for amending the Constitution (viaCongress or via a convention called by

the state legislatures), then stating: “Im-portantly in neither case does the ArticleV amendment process provide for a con-stitutional convention.”

This type of comment has become a stan-

dard semantic weapon in the arsenal of thepro-Article V convention forces. However,both conservatives and liberals have rou-tinely referred to an Article V “Conventionfor proposing Amendments” as a “consti-tutional convention” for well over 30 years,and likely much longer. And they haven’tdone this because they mistakenly believethat the words “constitutional convention”are to be found in Article V.

For example when the Senate Subcom-mittee on the Constitution of the Com-

Mark Levin’s new book, The Liberty Amendments , which

calls for an Article V constitutional convention, ignores the

very real risks of harmful changes to the Constitution.

Levin’s Risky Proposal:A Constitutional Convention

EXTENDED BOOK REVIEW

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mittee on the Judiciary held a hearing onNovember 29, 1979, regarding the role ofCongress in calling an Article V conven-tion, the official name of the hearing aspublished by the Government Printing Of-fice in a 1,372-page document was “Con-stitutional Convention Procedures.” Thishearing was held because the number ofstates petitioning Congress to hold an Ar-ticle V convention to propose a balancedbudget amendment was rapidly approach-ing the necessary 34 states.

The reason Levin and other pro-conven-tion forces want to deny the validity of thephrase “constitutional convention” in thiscontext is that one of the most persuasive

arguments against holding such a conven-tion is based on the contention that sucha convention could become a “runaway”convention based either on the inherentnature of “constitutional conventions” oron what transpired at our original “Con-stitutional Convention” in 1787.

Since respect for our Constitution hasbeen so widespread, state legislators havebeen very reluctant to approve calls for aconstitutional convention that could leadto harmful changes in the Constitution.

Levin correctly observes in chapter nine:

It is undeniable that the states createdthe federal government and enumer-ated its powers among the three sepa-rate branches; the states reserved forthemselves all governing powers notgranted to the federal government;and the Constitution they establishedenshrined both.

This observation leads to the topic of“extra-constitutional” powers of statesregarding the federal government, as im-

plied by the compact theory of the unionso aptly summarized by Levin in theabove quote. Although Article V of theConstitution provides for a constitution-al convention to be called by the states,the people of the states already have theextra-constitutional right to convene aconstitutional convention by virtue of theDeclaration of Independence.

Take a careful look at this passage inthe early portion of the Declaration ofIndependence:

We hold these truths to be self-evi-dent, that all men are created equal,that they are endowed by their Cre-ator with certain unalienable Rights,that among these are Life, Libertyand the pursuit of Happiness. — That

to secure these rights, Governmentsare instituted among Men, derivingtheir just powers from the consentof the governed, — That wheneverany Form of Government becomesdestructive of these ends, it is theRight of the People to alter or to abol-ish it, and to institute new Govern-ment, laying its foundation on suchprinciples and organizing its powersin such form, as to them shall seemmost likely to effect their Safety andHappiness.

You can break this passage down intothree parts: (1) Our rights come fromGod; (2) governments, such as our pres-ent federal government as defined by theConstitution, are instituted to secure ourrights; and (3) whenever any form of gov-ernment fails to secure our rights, it is theright of the people to alter or abolish it,and to institute new government.

Therefore the state convention methodof amending the Constitution as provided

in Article V can be seen as the Founders’way of incorporating into the Constitutionthe Declaration’s “right of the people toalter or to abolish” our government when-ever it fails to secure our rights.

This right is referred to as the theory of

popular sovereignty. Moreover, this theorywasn’t just specific to Jefferson’s think-ing. It was a consensus notion among theFounding Fathers. Consider for examplewhat Edmund Pendleton, president of theVirginia ratifying convention, said to thedelegates on June 5, 1788:

We, the people, possessing all power,form a government, such as we thinkwill secure happiness: and suppose, inadopting this plan, we should be mis-taken in the end; where is the cause

of alarm on that quarter? In the sameplan we point out an easy and quietmethod of reforming what may befound amiss. No, but, say gentlemen,we have put the introduction of thatmethod in the hands of our servants,who will interrupt it from motives ofself-interest. What then?... Who shalldare to resist the people? No, we willassemble in Convention; wholly re-call our delegated powers, or reformthem so as to prevent such abuse; and

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Mark Levin, popular conservative radio talk-show host and author of the best-selling book TheLiberty Amendments , works in his office in Leesburg, Virginia. Levin was formerly skeptical ofan Article V constitutional convention, but now believes the requirement for ratification by three-fourths of the states is a “serious check” against a runaway convention.

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punish those servants who have per-verted powers, designed for our hap-piness, to their own emolument.

Although there are some ambiguities inthis passage, Pendleton appears to be as-suring the delegates that if the Constitu-tion turned out not to secure happiness forAmericans, then it could be reformed bythe “easy and quiet” methods of Article V.However, if the Article V process were tobe subverted by “our servants,” the stateand federal legislators, then We the People(the sovereign people) would assemble inconvention, wholly recall and reform thedelegated powers of the Constitution, and

punish the offending servants.

Runaway ConventionNow back to Levin’s line of reasoning. Onpage 15 Levin states:

I was originally skeptical of amend-ing the Constitution by the state con-vention process. I fretted it could turninto a runaway convention process....However, today I am a confident andenthusiastic advocate for the process.The text of Article V makes clear

that there is a serious check in place.Whether the product of Congress ora convention, a proposed amendmenthas no effect at all unless “ratified bythe legislatures of three fourths of theseveral States or by Conventions inthree fourths thereof....” This shouldextinguish anxiety that the stateconvention process could hijack theConstitution.

In this quote Levin admits that he sharesthe concerns of others that an Article V

convention could turn into a “runaway

convention,” but asserts thathe has overcome those con-cerns with his belief that “Ar-ticle V makes clear that thereis a serious check in place,”namely the requirement ofratification of amendmentsby three-fourths of the states.There are several reasonswhy Levin should not be soassured that this is a “seriouscheck” in place to stop a run-away convention.

First, the ratification by three-fourths ofthe states requirement of Article V alreadyhas failed to prevent undesirable amend-

ments from being ratified. Consider the16th Amendment (income tax), the 17thAmendment (direct election of senators),and the 18th Amendment (prohibition).All three were ratified by at least three-fourths of the states, but most constitu-tionalists would likely agree that all threewere bad amendments and should not havebeen ratified. In particular, many constitu-tionalists think that changing the methodof choosing U.S. senators from appoint-ment by state legislatures to direct electionby the voters in each state as provided by

the 17th Amendment has been extremelydamaging to our constitutional republic.

Second, it is hard to predict just howmuch pressure could be brought to bear onthe American public and state legislators

or state convention delegates to get somefuture undesirable amendment or amend-ments ratified by the three-fourths rule.

Third, it is quite possible that an ArticleV constitutional convention would specifysome new method of ratification for itsproposed amendments. After all, our origi-nal Constitutional Convention in 1787, animportant precedent for any future consti-tutional convention, changed the ratifica-tion procedure for the new Constitutionfrom the unanimous approval of all 13

state legislatures required by the Articlesof Confederation to the approval by nine

state conventions in Article VII of the newConstitution. Furthermore, as discussed

above, the extra-constitutional “right ofthe people to alter or to abolish” our gov-ernment whenever it fails to secure ourrights, as proclaimed by the Declaration ofIndependence, would certainly encompass

The Declaration of Independence providesfor the “Right of the People to alter or toabolish” any government that fails to secureour God-given rights. Similarly, Article V ofthe Constitution provides that Congress, onthe application of two-thirds of the states,shall call “a Convention for proposingAmendments.” Although we have an inherentright to call such a constitutional convention,it is also inherently very risky to convene thesovereign people for such a purpose.

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Consider the 16th Amendment (income

tax), the 17th Amendment (direct election

of senators), and the 18th Amendment

(prohibition). All three were ratified by at

least three-fourths of the states, but most

constitutionalists would likely agree that

all three were bad amendments.



altering the method of ratification for anynew amendments that might result from anArticle V constitutional convention.

But not to worry, Levin has anothermethod for assuaging our concerns about arunaway convention. On page 16 he quotes

from Robert G. Natelson, a former profes-sor of law at the University of Montana:

[An Article V] convention for pro-posing amendments is a federal con-

vention; it is a creature of the statesor, more specifically, of the state leg-islatures. And it is a limited-purpose

convention. It is not designed to setup an entirely new constitution or anew form of government.

Levin is using this quote from Natelson

to assure us that an Article V conven-tion would be a very limited convention.We’re led to think that such a conventionwouldn’t hurt a flea — that there’s nothingto worry about from such a meeting.

On the other hand, on page 1 Levin hascreated a powerful specter of the oppres-sion we live under:

The Statists have been successful intheir century-long march to disfigureand mangle the constitutional orderand undo the social compact.... Their

handiwork is omnipresent, for all tosee — a centralized and consolidatedgovernment with a ubiquitous net-

work of laws and rules ac-tively suppressing individ-ual initiative, self-interest,and success in the nameof the greater good and onbehalf of the larger com-munity. Nearly all will beemasculated by it, includ-ing the inattentive, ambiv-alent, and disbelieving.

And, how does Levin propose to deliverus from our bondage under this powerful,totalitarian system of government? His an-swer is on page 18:

We, the people, through our state leg-islatures — and the state legislatures,acting collectively [through the stateconvention process] — have enormouspower to constrain the federal govern-ment, reestablish self-government, andsecure individual sovereignty.

So, Levin is telling us that we “have enor-mous power to constrain the federal gov-ernment, re-establish self-government, andsecure individual sovereignty” by resortingto (surprise) the “limited-purpose” state

convention process, a process that wouldn’thurt a flea! Obviously Levin believes that

Article V conventions do have enormouspower, but on the other hand also knowsthat he must minimize the power of suchconventions in order to convince skepticalgrassroots Americans to support his consti-tutional convention proposal.

In other words, constitutionalists canagree that Levin is accurately describingour problems with the federal government;however, many constitutionalists will alsoagree that Levin is encouraging Americansto play with fire by promoting a constitu-tional convention. Just because the Consti-tution authorizes Article V conventions toamend the Constitution doesn’t mean thatit would be wise at this time in our nation’s

history to call one.While pro-Article V convention enthu-siasts tell us that this is a great time foran Article V convention because the Re-publican Party controls 26 of the 50 statelegislatures (the Democrats control 18,five are split, and one is non-partisan),and therefore could surely block the rati-fication of any harmful amendments pro-posed by an Article V convention, theyare omitting from this analysis that verymany of the Republican state legislatorsare not constitutionalists, and could end up

in alliance with Democrats to ratify someharmful amendments. Not to mention the

This is Professor Lawrence Lessig, co-host of the Harvard Conference on theConstitutional Convention (http://www.conconcon.org) and a self-professed,left-wing populist, who is encouraging aLeft-Right coalition to call for an Article Vconstitutional convention. Does he knowsomething that Mark Levin doesn’t know?

Screen grab from theConference on theConstitutional Convention,Harvard Law School

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If this proposed amendment were added

to the Constitution, then a three-fifths

(60-percent) vote by the state legislatures

would veto a law passed by Congress

without reference to its constitutionality.


http://www.conconcon.org/






likelihood that constitutionalists would bein the minority at the convention for pro-posing amendments itself.

PopulismNow, let’s move on to another area of con-cern. Levin is proposing an Article V con-stitutional convention, or as he prefers tocall it, “a convention for proposing amend-ments” or “the state convention process,”

as a means to an end. What is his goal? Ashis book’s subtitle proclaims, his goal is“restoring the American Republic.” Then,on page 6 Levin states: “It is time to returnto self-government, where the people are

sovereign and not subjects and can reclaimsome control over their future rather thanaccept as inevitable a dismal fate.” (Em-phasis added.)

This is a sentence that is easily takenlightly during a first reading of the book,but that assumes a much greater signifi-cance when taken in the context of the 11

amendments Levin proposes in chapterstwo through 11. This sentence expressesa populist solution to our problem of anout-of-control federal government, whichhelps explain the rapid acceptance ofLevin’s proposals. Levin is offering long-suffering conservatives an action plan forgrabbing the levers of power over the fed-eral government away from the overbear-ing elected and appointed officials of theexecutive, legislative, and judicial branch-es. I’m using “populist” here to refer to

a political program to base public policyon the desires of the “sovereign people”of the nation, as in a democracy, ratherthan on constitutional provisions, as in arepublic.

For example, his “Amendment to Grantthe States Authority to Directly Amend theConstitution” in Chapter 9 would providefor the states, acting entirely without refer-ence to Congress, to adopt amendments to

the Constitution by a two-thirds vote of thestate legislatures. This amendment wouldlower the bar for getting new amendmentsratified from the “three-fourths vote of thestates” requirement of Article V to just a“two-thirds vote of the state legislatures.”While this difference might seem small, itwould still be a move in the direction of de-mocracy and away from a republic, since itis a step in the direction of making it easierfor the “sovereign people” to change ourConstitution as expressed in this case by avote of the state legislatures. Such steps are

supported by many present-day populistswho are also promoting Article V constitu-tional conventions as steppingstones to theparticipatory democracy they are workingtoward. We’ll return to this topic later.

Next, let’s consider Levin’s proposed“Amendment to Grant the States Authorityto Check Congress” in Chapter 10. The keyprovision is “Section 3: Upon three-fifthsvote of the state legislatures, the Statesmay override a federal statute.” If thisproposed amendment were added to the

Constitution, then a three-fifths (60-per-cent) vote by the state legislatures wouldveto a law passed by Congress withoutreference to its constitutionality, anotherstep toward rule by the “sovereign people”(democracy) and away from rule in accor-dance with the Constitution (republic). Ofcourse, the progressive populists among uswould prefer to overturn federal laws by amajority vote of the entire U.S. population

without reference to constitutionality, butLevin’s proposed amendment would be astep in the populist direction.

Rounding out this discussion of howLevin’s amendments would empowerthe state legislatures to grab the levers ofpower over the federal government awayfrom the elected and appointed officials ofits three branches, in the amendment justdiscussed Levin includes a provision forstate legislatures to override certain execu-tive branch regulations, and in his “Amend-ment to Establish Term Limits for Supreme

Court Justices and Super-Majority Legis-lative Override,” he provides for states tooverride a majority opinion rendered bythe Supreme Court, again (in both cases)without reference to constitutionality.

Related to this discussion of Levin’spopulist tendencies is the strikingly smallnumber of mentions of the enumeratedpowers of the Constitution or the 10thAmendment in this book. However, thismakes sense when you realize that the 10thAmendment and the enumerated powers

The signing of the U.S. Constitution at the Constitutional Convention of 1787 was depicted in this 1856 painting by Junius Brutus Stearns.

Constitutionalists can agree that Levin is accurately describing our problems with the federal government; however, many constitutionalists willalso agree that Levin is encouraging Americans to play with fire by promoting a constitutional convention.

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http://www.thenewamerican.com/

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are closely related. Simply stated, the 10thAmendment reserves to the states “thepowers not delegated to the United Statesby the Constitution.” However, Levin’samendments empowering the states tooverride the laws, regulations, and legal

decisions of the various branches of thefederal government make no reference tothe powers delegated by the Constitution,a dramatic downgrading of the enumer-ated powers and the 10th Amendment.

Instead of upholding the Constitutionoriginally ratified by the states in 1788,Levin is creating a mechanism for stateintervention in the workings of the federalgovernment that vetoes federal laws, regu-lations, and legal decisions based on themomentary preferences of the sovereignpeople as expressed in votes of the state

legislatures without reference to the Con-stitution. For example, imagine a situationwhere constitutionalists were successful increating sufficient grassroots pressure toget Congress to pass and the president tosign a law to delete the “indefinite deten-tion” provisions from one of the recent Na-tional Defense Authorization Acts based onthe unconstitutionality of those provisions.Then imagine that Levin’s “Amendment toGrant the States Authority to Check Con-gress” was in effect, and that 30 state leg-

islatures, influenced by a sudden outpour-ing of support for the indefinite detentionprovisions (as whipped up by the media)among the populations of their states, votedto veto that law. This would be a case wherea federal law, based solidly on the Consti-

tution, could be vetoed by 30 state legis-latures, based on the presumed will of thesovereign people.

In contrast to Levin’s proposals, a bet-ter policy would be for the states, as theoriginal agents who agreed to the compactbetween the states as spelled out in theConstitution, to enforce (through state nul-lification of unconstitutional federal laws,for example), not revise, the Constitution.

While we’re considering the populistaspects of Levin’s proposal for a consti-tutional convention, this is a good time to

take a brief look at the populist lovefest,better known as the Harvard Conferenceon the Constitutional Convention, held atHarvard on September 24-25, 2011, andcosponsored by the Harvard Law Schooland (surprisingly) the Tea Party Patriots.Of course, Levin’s Liberty Amendments hadn’t been published yet, so the people atHarvard and the Tea Party Patriots didn’trealize that they were using a forbiddenphrase, “constitutional convention,” torefer to an Article V convention.

It’s very enlightening to watch videos ofthe various panels at the Harvard confer-ence. The Harvard host, Professor Law-rence Lessig, and the moderator of theClosing Panel, Richard Parker, wore theirpopulism on their sleeves. Lessig is a left-wing populist and Parker is a plain-oldpopulist (who happens to trace his politi-cal lineage back to the 1960s organization,Students for a Democratic Society). Theywant America to become more and more ademocracy with more and more things de-cided by popular vote. And, they think thatholding Article V constitutional conven-tions will help get them where they wantto go. Do they know something that Mark

Levin doesn’t know? Watching the onlinevideos of this Harvard conference is a goodway to learn why holding a constitutionalconvention would open Pandora’s box.

The Constitutionalist Strategy Now, let’s consider the contrasting view-point on restoring the American republic.The traditional constitutionalist position,as exemplified by The John Birch Societyfor over 50 years, is to work to restore ourRepublic by educating the electorate suf-ficiently to get a constitutionalist majority

elected on the local, state, and national lev-els. The goal is to bring about adherence bypublic officials to the Constitution as origi-nally intended by the Founding Fathers.

One of the constitutionalist strategiesfor reining in our out-of-control federalgovernment is state nullification of uncon-stitutional federal laws based on the enu-merated powers of the Constitution andthe 10th Amendment. When approved by afair number of state legislatures, nullifica-tion laws protect the citizens of those statesfrom unconstitutional federal laws and reg-

ulations, and whether approved or not, statenullification initiatives educate the elector-ate about the importance of upholding theConstitution as originally intended.

Our problem of an out-of-control fed-eral government is due to ignorance aboutthe Constitution among the electorate. Thesolution is to educate the electorate andenforce the Constitution, not to change orignore it. As Robert Welch, founder of TheJohn Birch Society, was fond of saying:“There is no easy way.”

One of the constitutionalist strategies for reining in our out-of-control federal governmentis state nullification of unconstitutional federal laws based on the enumerated powers of theConstitution and the 10th Amendment. The solution is to educate the electorate and enforce theConstitution, not to change or ignore it.


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Levin’s Risky Proposal: A Constitutional ConventionThis article critiques Mark Levin’s basic arguments in favor of a constitutional con-vention in his book Liberty Amendments as well as exposes a populist, anti-Consti-tution tendency in his thinking. (Reprint) (2013, 8pp., 1/$0.50; 25/$10.00; 100/$35.00;

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