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Jon Roland at Austin Constitution Meetup, 2013/08/20, reviews book by Mark Levin and critiques his proposals for amendments to the U.S. Constitution.
See http://constitutionalism.blogspot.com/2013/08/mark-levins-liberty-amendments.html
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this is the third segment of the August
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20th 2013 Austin Constitution beat up
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I'm John Rolla
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the topic of this segment
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is
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a new book by Mark Levin who is a
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well-known political commentator
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called The Liberty amendments
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he makes 10 basically 10 proposed
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amendments
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in that book and our our views for an
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article 5 Constitutional Convention as a
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way to get them adopted
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now I have to command Mark for giving a
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lot of thought to this
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uh in the course of writing a book he's
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done some excellent research however
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the Amendments he's actually proposing
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are not that well thought out
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in fact many of them we have adopted
1:04
would make the situation he
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intends to solve even worse
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so
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it demonstrates once again a point I've
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often made that many of the Constitution
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is not a job for people who don't work
1:24
at this on a regular basis and have
1:28
think through all the ways that can go
1:32
wrong
1:34
when you amend the Constitution you have
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to anticipate all the ways that an
1:40
amendment could be misinterpreted
1:43
you don't want to fight Focus just on
1:45
what you want to accomplish and forget
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about all the unintended consequences
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that may ensue from it
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or the way the clever lawyers could
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misinterpret it
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remember we got into this mess because a
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lot of clever lawyers for 200 years have
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been finding ways to misinterpret the
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Constitution and some of them are Judges
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so we're not going to overcome all those
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adverse precedents all those deviations
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from original understanding
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without
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specifically addressing the way in which
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those Court decisions went wrong
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and there are too many of them to be
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addressed by just 10 amendments
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the amendments in particular that Mark
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proposals proposals for the most part
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are just not that important even if they
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were ratified
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they don't get to the heart of the real
2:50
problems that we have
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so
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as you are probably aware I have my own
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proposals
3:01
uh and in fact I have a complete website
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devoted to them and then
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dashit.org in which they're laid out and
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I also have links to proposals from
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other people
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a Randy Barnett came up with his set of
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ten amendments which I also thought were
3:23
inadequate
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and others that as well from time to
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time
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it seems that we do not we haven't had
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anyone who's really good at writing
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amendments of the U.S Constitution says
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James Madison
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now
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I don't claim that mine are perfect
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either
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but I think that if you will examine
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them and compare them to the problem and
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to other proposed amendments you may be
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able to appreciate them as at least be a
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little bit better than most of the
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alternative proposals that are being put
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out there
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now
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here is my website amendment.org
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that you can go to and find it
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now here is where I go into detail on
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March
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proposed amendments one is to establish
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a term limits for members of Congress
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well the problem is that it would shift
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even more power to staffers and
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lobbyists who would remain in place
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Gathering Power and expertise as members
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came and went
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who would prevent members who typically
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arrive without even the expertise who
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decide who the experts are from
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acquiring such expertise
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and it would prevent members from
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accumulating the connections and favors
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that would enable them to be effective
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the second is an amendment to restore
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the Senate as he calls it
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would repeal the 17th Amendment
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but he would also call for Provisions to
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replace Senators before the end of their
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terms by state legislatures
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uh
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the 17th amendment was adopted for a
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good reason
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his mouth is not understood by a lot of
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the people who proposed to repeal it
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uh
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the door
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elect of U.S senators by state
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legislatures almost never worked as it
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was intended
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maybe for the first
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couple of decades
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but once we got into the 19th century it
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all fell apart and the result was
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inferior
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U.S senators who were mostly
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not accountable to the state
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legislatures but to wealthy private
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interests who are able to buy U.S Senate
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seats with an often a very small
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donations
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to the state legislators
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so
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at the time that the 17th amendment was
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adopted Most states were already
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conducting popular elections and the
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legislature is just rubber stamping the
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results that was due to popular pressure
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in reaction to the corruption of the
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process that existed before that
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I'm not saying that uh
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direct election of U.S senators is the
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way to go I think we need to amend it to
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do still something else but not just
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simply repealing it
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okay a third one is an amendment to
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establish term limits for Supreme Court
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Justices
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and super majority legislative override
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well
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if you want to understand why
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we have life tenure for federal judges
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just have a case heard before a visiting
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judge
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in an ordinary Court
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ability to judges get their appointments
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uh
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under contract with
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various state and local governments
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and they don't get the jobs unless they
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do the jobs the way their bosses want
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them to
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in other words they're not independent
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of those who hire them
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and uh
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the result is generally decisions that
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favor the locals or state establishment
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so
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you want judges to be in as independent
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as possible
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but the better way to achieve the result
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saw here would actually be to appoint
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federal judges for life
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but not to a particular court
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to a general pool of federal judges from
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which members would be drawn at random
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to serve one particular course for
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limited periods of time that would
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include the U.S Supreme Court
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so you would never know from one year to
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the next who are the members would be
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that that term
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and the next term it would be still a
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different set
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so by mixing them up that way
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one deep politicizes the court to some
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degree and especially the Supreme Court
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which I think is a desirable thing to do
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and of course lemons I met proposal
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there
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also presumes
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that the Supreme Court is the pro is a
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problem
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obviously he disagrees with some of
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their decisions
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but for the most part
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the Supreme Court and other federal
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courts
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are probably doing better
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to be faithful to the Constitution than
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Congress of the state legislatures or
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the president are
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so the remedy is not to have Congress
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overturn their decisions because
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Congress is worse
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and so are the state legislatures
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that has two amendments to limit federal
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spending and Taxation
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and he lived as a federal government to
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optimize not exceeding 17.5 percent of
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the GDP
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and have a total federal tax collections
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from any source of more than 50 percent
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of a person's income
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well
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that one is
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probably the worst of his proposals for
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for one thing now the GDP in our income
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is well defined and can't properly be
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used as a determinant in a
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constitutional amendment
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uh putting a cap on collections or
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spending would only make every budget
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something the Supreme Court would have
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to decide and if not equipped to do that
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and if they're worth an exception for a
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state of War there would have to be that
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Congress would get around it by keeping
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the country in a Perpetual state of War
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now it's claimed that the resolution
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authorizing the use of force against al
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Qaeda is the functional equivalent of
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state of War so according to this
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as long as that resolution remains in
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effect we're in a state of war no budget
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require restrictions required
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so uh
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and I have another article called flaws
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in the valves by the demand by the way
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this article
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is on my blog
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constitutionalism.blogspot.com
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so if you want to read it directly
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that's where you can go
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then the next is an amendment to the
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Limit the federal bureaucracy
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uh
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well
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something certainly needs to be done
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about that and I do in my proposals but
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this is not the way to do it
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um
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first of all it's a mistake to use
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dollar amounts in an amendment or a
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statute unless a dollar is defined in
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terms of scarce physical asset like gold
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silver and energy
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my proposals
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take a saga approach including for
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bidding the application of
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administrative regulations to other than
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government employees or contractors
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now that's the way to go that's because
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Article 1 Section one Clause one of the
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Constitutions is that all legislative
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power is vested in Congress
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legislative power is not delegatable so
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the attempts to delegate it to
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administrative agencies is fundamentally
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unconstitutional
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then an amendment to promote free
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enterprise
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well it's it says it's to redefine the
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Commerce Clause to specific Grant of
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power limited to preventing States from
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impeding Commerce among the states and
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preventing Congress from regulating
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Congress within a state well the two are
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somewhat contradictory here because if
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States can't
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uh impede Commerce
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then
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they don't Commerce Congress doesn't
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have the power to regulate commerce even
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between states much less within a state
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so that isn't well stated there
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um
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what is needed and what I propose is to
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clarify the meetings of Commerce and
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regulate and the phrase necessary and
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proper for carrying into execution and
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an amendment that does not do that would
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accomplish nothing
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the next an amendment to protect private
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property serving abuses under the
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takings laws well generally speaking the
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abuses under the takings Clause have
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been at the state level
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uh is the federal courts have generally
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been fairly protective of rights under
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the takings clause
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so uh what this is attempting what this
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really is is to apply but to apply to
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the states rather than to the
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to the national government
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and what it doesn't do is you need to
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clarify what public use is and is not
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and require that it commence within a
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year of the taking and continue or some
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minimum period of years such as 20 or
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more
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in other words
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simply saying for public use
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and maybe it's only for public use for
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24 hours and then it sold to a private
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developer uh is it it's a technical
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compliance but it doesn't fulfill the
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intent of it unless you put some kind of
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time constraints on it
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then next one amendment to Grant the
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state's authority to directly amend the
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Constitution
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well I have to this one is almost a good
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idea
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uh
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right now Congress can block any
15:00
amendment that would reduce its power
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and probably would and those are exactly
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the kind of common amendments we need to
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make
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so before con before we can make
15:12
amendments to reduce the power of
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congress we're going to need to take
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Congress out of the loop
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and the way to do it would be to have
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the states enough to stay as proposed
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identical amendments
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and
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have them be submitted to the rest of
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the states so they all have a chance to
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vote on them and
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he would provide for two-thirds of the
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state but I would still require three
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quarters
15:46
then next one an amendment to Grant
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States authority to check Congress
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three-fifths of the state legislatures
15:57
may overturn acts of Congress
16:00
our larger impact executive orders
16:03
within 24 months with no judicial review
16:06
permitted well this is a problem in
16:09
several ways first of all it would make
16:11
State legislatures give them a job
16:14
they're not prepared to under to do
16:17
and second of all most the too many
16:20
states
16:21
legislatures only needed once every two
16:23
years so two 24 months is too short a
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period of time
16:28
on the other hand if you do have even 24
16:31
months it creates uncertainty
16:35
because any act that Congress would pass
16:37
could be overturned by the states within
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two years we would no no one would know
16:43
how to plan
16:45
for you know
16:47
to invest to
16:49
to know how to comply and set up any
16:52
kind of in institutions to spend any
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money to do a lot of things because of
16:58
the uncertainty of that situation
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uh
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and then an amendment to protect the
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vote
17:09
requiring photo ID for voting in person
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or mail ballot and prohibiting
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electronic voting well
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this is the old photo ID problem
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and
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it is reasonable to require
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identification
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uh to require people to who before they
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can vote to prove they're eligible to
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vote
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but there can be no requirement
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to have photo ID
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because uh you can't require someone to
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have some to present something he's not
17:47
required to have
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and you for one thing you a person is
17:53
not required to even have a name
17:55
so traditionally what has been done is
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you have a notary notarized a juret
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saying this person
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is eligible to vote he is a citizen and
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a resident of this jurisdiction
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and they don't have to give them a name
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just this person
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and
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that would be sufficient
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the
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the danger here is an orwellian regime
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in which the central government controls
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all identities
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and it can turn anybody wants into a
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non-person with a few key strokes
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Strokes on a computer
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and thereby control them and duly
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imagine the situation with uh
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a bunch of bureaucrats in Washington
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decided to suddenly uh
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remove the identities from the system of
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everybody that they didn't agree with
18:58
such as a conservative political action
19:02
groups as we saw recently with the FBI
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so uh you know the FBI was bad enough on
19:10
the way they handled 501c4 applications
19:13
and just imagine what the situation
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would be if suddenly people found that
19:20
nobody was recognizing their
19:22
identification papers
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so uh
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my main criticism is that
19:31
Levin's proposals ignore most of the
19:34
more important reforms that are needed
19:37
with a few exceptions noted most of them
19:39
would be ineffective or
19:41
counterproductive those who would
19:43
propose Constitutional Amendments needed
19:46
to break through all the ways that could
19:48
go wrong and provide precise language
19:50
the clever lawyers will have
19:52
difficulties diverting for at least the
19:55
next 200 years
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