Monday, January 27, 2014

The “Liberty” Amendments: A Review

My first introduction to Mark Levin came quite a few years ago when I picked up a copy of his Men In Black: How The Supreme Court Is Destroying America from my local library. I had heard good things about the book through various conservative circles and articles, and was intrigued.

I was not impressed. At all. I finished convinced that Levin was an intellectual lightweight, more interested in airing dirty laundry than in engaging in true political or legal discussion. What’s more, his critique of judicial review (more about that in a minute) convinced me—a lowly undergrad at the time who had merely scratched the surface of Constitutional law—that he didn’t know what he was talking about.

I ran across Levin again some few years later, when at a homeschool conference a high-school student in the booth next to mine was extolling Levin’s Liberty and Tyranny: A Conservative Manifesto while simultaneously defending the Confederacy as not being about slavery and lambasting Abraham Lincoln. Again, I was unimpressed. And while I don’t listen to talk radio, I have heard that Levin has quite the reputation for being less than civil to his callers, elevating noise over discourse.

So imagine my surprise when I found out that my alma mater’s Chancellor (and my first Constitutional Law teacher) was joining forces with Levin in advocating calling a convention of states to amend the Constitution. My skepticism piqued, and I decided to read Levin’s most recent book: The Liberty Amendments: Restoring The American Republic.

Maybe I had underestimated Levin. After all, he has a JD, practiced as an attorney, and was Chief of Staff to President Reagan’s Attorney General Edwin Meese. That alone makes writing him off as a legally ignorant hack more difficult.

Unfortunately—at least, unfortunately for Levin—my opinion after reading his latest bestseller remains unchanged. No, strike that. It solidified. If the book wasn’t borrowed, it would be full of scribbles (and not the friendly kind); as well as dents from when it would have gone sailing across the room.

In short, Levin is the sort of polemical hack who sounds compelling only insofar as his audience doesn’t know what he’s actually talking about. He has just enough truth, uses just enough facts, and blurs over just enough nuances, that he pulls off sounding convincing. Give me a well thought and intellectually honest liberal whom I can heartily disagree with any day. There are reasons I respect people like Nicholas Kristof and Tony Blair and will read The Atlantic over many “conservative” publications.

But anyway, back to Levin and his plan to save us all. The starting point of his book is actually based on a prior book Ameritopia: The Unmaking of America which had as its premise that we are living in a “post-Constitutional society.” “The Liberty Amendments,” then, is his grand scheme to, well, as the subtitle states it “Restore[] the American Republic.”

And this was my first red flag. Levin’s entire thesis is about restoration; about some undefined golden era in our past that needs to be be recaptured. America, he writes,  must be rescued from the “statists,” the “progressives” (likely the progressive statists), and most of all, President Obama. (I’ll go out on a limb here and say that the latter problem will disappear sometime in early 2017). Those political views are the ones that have hijacked our destiny and are preventing us from utopia/golden age/our best life now.

This is likely my own progressive side speaking, but I've noticed that time, after all moves forward. Cultures change. Local and global politics shift. Even if there were a golden age to restore (something I increasingly doubt the more I study history), such restoration would be impossible and trying to usher it in would result in a failed and painful attempt to “fundamentally transform” the nation (a phrase that terrifies this stripe of conservatives when the President used it, but which they so often secretly wish to do themselves). In short, however much I believe in learning from the past, nostalgia makes a poor political starting point.

The second main problem is Levin’s approach to the Constitution. And while he is not alone in this failing, it very much comes to the forefront in his book. Levin views the Constitution as predominantly a policy guide instead of a set structure that contains policy debates.

However, this is not fundamentally what the Constitution does, nor is it what it was intended to do. While it does have some outright prohibitions on uses of powers, and the Bill of Rights certainly adds to this element, at its heart the Constitution is about allocating powers vertically (federal/state) and horizontally (three branches). Whether those powers would be used for good or ill by their respective branches is something left to the political process itself. As Franklin famously quipped, they’d given the people a republic “if they could keep it.”

Consequently, the Constitution is not and ought not to be used as the end of political discussion. Plenty of bad policies are constitutional, and I’d even dare to suggest that a number of good policies may be unconstitutional. If it is a liberal failing to shoehorn every policy preference into the constitution, it is an equally damaging conservative failing to categorically label every disliked policy “unconstitutional.” Neither treats the Constitution properly, which is to view it as laying out the fundamental rules of the game while allowing the various actors to play it out.

Levin’s proposals largely fall into this trap. He disagrees, for example, with the budget process, so he seeks to chain it down more—reclassifying debt from simply bad policy to unconstitutional. To correct perceived overreach, he guts the commerce clause. He writes the specifics of tax code—down to the filing date and percentage of GDP that can be spent—into the Constitution. He would add a constitutional requirement for photo-ID for voting, as well as a constitutional prohibition on using “Electronic or other technology-based voting systems … unless a reliable identification and secure voting regimen is established by the state legislature.” In all, Levin proposes eleven amendments, which constitute 50 sections and over 1,950 words. The original Constitution has only about 4,500 words and 24 sections. Including the Bill of Rights, we’ve since added 27 amendments constituting 49 sections and just over 3,000 words. In short, Levin’s proposal equates to nearly 50% of the original Constitution and rivals the sum total of 226 years of Constitutional amendment. Calling them "amendments" in this context may be an understatement.

The result of these amendments is not to restore the Constitution to its true form, but instead to write specific policy positions into the Constitution instead of leaving them up to the legislative process. Chief Justice Marshall, himself of the founding generation and a member of the Virginia delegation that ratified the Constitution, specifically criticized this approach in McCullogh v. Maryland:
A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language.
Seeking to change the rules by writing detailed policy into the Constitution signals an inability to win electorally, and there is actually something fundamentally undemocratic about it. It's a surrender of the policy realm. In effect, Levin’s proposals stem from the presumption that the Framers’ vision failed. “We the People” cannot be trusted to elect good representatives, republican democracy doesn’t work, politics is ineffective, and what is needed is a structure that mechanically works regardless of who is elected. That’s a valid position to take, but it’s intellectually dishonest to say that such a position is something the Founders would agree with.

Furthermore, state constitutions have already tried using their constitutions as policy manuals with less than appealing results. G. Alan Tarr, in his book Understanding State Constitutions, devotes the entire first chapter to this distinction between the federal Constitution and state constitutions.  He notes: “Relatively few provisions of the federal Constitution directly address public policy issues, although the Constitution’s grants of power can be interpreted as suggesting the purposes for which national power is to be exercised. State constitutions, in contrast, deal directly with matters of public policy, sometimes in considerable detail.” He then goes to note that state constitutions are considerably less stable than their federal counterpart. While the federal constitution has been amended less than once per decade since the Bill of Rights:
[T]he American states have regularly revised and amended their constitutions. Only nineteen states still retain their original constitutions, and a majority of states have established three or more. Louisiana’s current constitution is the state’s eleventh, and Georgia its tenth. The level of constitutional amendment likewise underscores the states’ willingness to initiate formal constitutional change. As of 1996, over 9,500 amendments had been proposed to the states’ current constitutions and over 5,900 adopted—an average of almost 120 amendments per state. The Alabama Constitution of 1901 has been amended over 580 times, and the California Convention of 1879 almost 500 times. Even these figures, impressive as they are, substantially underestimate the states’ propensity for constitutional tinkering, because they omit amendments and proposed amendments to the states’ earlier constitutions. For example, in 1980, three years before adopting a new constitution, Georgia submitted to its voters 137 proposed amendments—16 general amendments and 121 local amendments; and Louisiana’s constitution of 1921 was amended 536 times before its replacement in 1974.
I think these two developments are related. While elevating every policy question to a constitutional plane may appear to solidify the position, in reality it drags the constitution down to the level of policy arguments, lessening its authority and lasting influence, and making it much more difficult to understand. If we treat the Constitution as the tax code, it will soon look like the tax code. Try reading your own state constitution if you doubt this.

Third and finally, is Levin’s confusion about both the source of the problem and how it relates to the separation of powers. This is particularly evident in his discussion of the Judiciary. And if you thought my second point was involved, trust me, I’m holding back here.

Take the example of Legislative delegation of power to the Executive to craft regulations. Yes, Congress is irresponsible when it does this. But again more often than not the Executive action is a symptom of Legislative dereliction. Someone, after all, needs to administer the laws, and the Legislatures’ poor drafting doesn’t excuse the Executive from his duty to enforce. If the Legislature can’t or won’t draft the law clearly the first time and can’t or won’t rouse itself to amend the law (and thereby supercede all regulatory rules stemming from the obsolete law)—both of which are exercises of preexistent powers—why should I believe that it would properly exercise this new power to invalidate regulations? Giving more power to the very branch that, according to the book’s premise, can’t be trusted with the power it has, is simply inconsistent. But it’s what happens when one fails to identify the problem and instead relies on partisan talking points.

On the other hand, there are times when the Legislature is over eager to exercise powers it doesn’t have. Levin identifies some of these. Yet in an odd twist, Levin still somehow fails to lay the blame with the Legislature and instead claims it belongs with the Judiciary.

But first let me first explain judicial review, which is the idea that a court can declare a law unconstitutional and void. Hamilton sums up the rationale for this doctrine well in Federalist 78:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. 
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
This is why the powers are separated, to minimize Legislative influence on the Judiciary's review. This is the same reasoning adopted by Chief Justice Marshall in Marbury v. Madison, which was the first time the Supreme Court addressed this question. Levin specifically attacks the Marbury decision, as he did in his prior book "Men in Black," writing that it “claim[ed] authority not specifically granted in the Constitution,” “altered and extended the Court’s limited authority,” and “snatched the authority” to interpret the Constitution.

Oddly enough, President Obama seemed to channel Levin’s very argument just prior to the Obamacare decision when he stated “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Needless to say, the President was roundly criticized for those statements in conservative press, the same press that seems to overlook Levin’s argument coming to the same conclusion.

In short, Levin’s critique of the Court is twofold: First, he condemns the court for seizing power that it doesn’t have under the Constitution (judicial review). Second, he then condemns the Court for not exercising the very power that it in his view unconstitutionally seized, with the New Deal and Obamacare cases being his primary examples. The two critiques simply cannot both be true under the Constitution, yet Levin never even recognizes the conflict.

His confusion comes from a failure to understand the Judicial branch. Yes, the Supreme Court has failed to hold the Legislative branch’s expansion of its own powers in check. But the origin of that problem lies with the Legislature, not the Court. Had the Legislature determined that Obamacare were unconstitutional and accordingly not passed it, the Court would have never been involved. As it was, insofar as there was a Constitutional violation, the Court can only be blamed for failure to correct, not for the source. The power claimed was invented not by the Court, but by the Legislature.

But Levin’s solution demonstrates that he doesn’t grasp this. He proposes solving for judicial overreach (demonstrated, remember, primarily by judicial inaction) by giving the same Legislative branch that invented the unconstitutional power the additional power of overturning the Court’s decisions. Applied to the Obamacare for example, the Legislature could overturn the decision under this proposal. Which, in effect, would mean that the Legislature would determine that the Court was wrong in declaring that the Legislature was permitted to do what the Legislature did. Not only is it nonsense, but with a three-fifth vote requirement, is is actually harder than doing the straightforward thing and repealing the law at issue because the Legislature deems it unconstitutional. Levin is effectively asserting that the solution for ineffective guards is to let the inmates run the asylum. Neither the critique, nor the solution, actually makes much sense.

Levin's proposal that the states likewise have a Constitutional override runs into the same problem, where the states would be permitted in continue to act unconstitutionally if enough of them agree. History may show that the Court isn't always the best keeper of the Constitution; but it also shows that the States and Legislature are no better. In fact, since every unconstitutional act reviewed originates in a legislative body, I'm inclined to say that the Legislature and states have a demonstrated history of being worse keepers of the Constitution than the courts.

But believe it or not, it gets better. Because Levin’s solution to our political problems is his nearly 2,000 word restoration to the Constitution, dictating in detail such policy matters as voting requirements, budget cap in relation to GDP, dollar amounts for regulations that must be approved by the Legislature, Legislative and party makeup of regulation review committee, and level of regulation that becomes a property taking. If the Congress or the Executive thumb their noses at these new requirements, or even interpret them differently than Levin thinks they mean, what will he do?

Well, he doesn't say. But I can imagine he (or someone else) would file suit to ensure their proper enforcement.

Yes, he’ll appeal to the very branch that properly (although he disputes this) has the authority to enforce these provisions. He’ll do it after laying most of the blame for our constitutional troubles at their feet and denying that they have the authority to do what he asks them to do.

And if he prevails, he’d better pray really hard that three-fifths of the Legislature doesn’t think otherwise.

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