I have many friends, family, and acquaintances whom I respect very much but simply do not comprehend the decline of the United States from a self-governing representative democracy of citizens into a non-free society of subjects under the rule of a central government. The process by which we've arrived here has been slow - the trends can be observed over the last century. Today we can see these trends and their accelerating death spiral. We the people need to make a course correction soon. To paraphrase a recent president: we really do have a rendezvous with destiny. We either preserve self government or we sentence our children and the generations that follow to a thousand years of oppression by people who want to rule over us. We, the remaining vestige of a free society, have a responsibility to act.
The Declaration of Independence asserted the basic premise of self-government: that we all have unalienable rights and we delegate the task of protecting these rights to the government. The Founding Fathers described the tyrannical rule and oppressive acts of the monarchy under which they were oppressed. Our first attempt at forming a federated union of states - the Articles of Confederation - lasted about a dozen years before the evidence indicated it was simply too weak to be effective. They knew they didn't want tyranny - that's what the Revolutionary War was about. By 1787 they knew they didn't want anarchy - that's what the Articles of Confederation gave them. The challenge in finding the sweet spot of self-government between tyranny and anarchy was the goal of the Constitutional Convention.
The Founding Fathers understood human nature better than most people today: prosperity and power tend to breed tyrants. They knew the sweet spot they wanted required people of ethical character to pursue shared goals in an environment of transparency, with checks and balances on authority. How to avoid the progression from a federation of sovereign states into a central authority controlling those states was the subject of much debate, the arguments of that debate documented in both the Federalist papers and the Anti-Federalist papers. What resulted was a core organization structure that distributed power both horizontally at each level and vertically throughout the government. This structure, while effective, was still insufficient for protecting the people against collusion and the progressive consolidation of power toward the central national bodies. The defined roles and responsibilities within the organization structure and the process for amending the Constitution represented their best effort for keeping the balance of power in check.
The States were keenly aware of the risks and opposition to the new Constitution was strong. There needed to be clarification and protection of individual rights. The Bill of Rights represents the shared goals between the Federalists and the Anti-Federalists; it asserted individual rights, clarified intended limitations of centralized power, pushed unspecified powers downward, and ultimately enabled ratification of the U.S. Constitution. It was in this fashion that the fledgling country with its exceptional form of government made a course correction away from anarchy toward that sweet spot of good governance.
The States were keenly aware of the risks and opposition to the new Constitution was strong. There needed to be clarification and protection of individual rights. The Bill of Rights represents the shared goals between the Federalists and the Anti-Federalists; it asserted individual rights, clarified intended limitations of centralized power, pushed unspecified powers downward, and ultimately enabled ratification of the U.S. Constitution. It was in this fashion that the fledgling country with its exceptional form of government made a course correction away from anarchy toward that sweet spot of good governance.
The evidence today suggests we may have missed our target. Ratification of the U.S. Constitution happened 226 years ago, along with the Bill of Rights. Since then, an additional 17 amendments have been added (well, 15 if you ignore Prohibition #18 and its repeal #21). However, between the House and the Senate, new amendments have been proposed on average nearly once per week (11,539 through January 2013) for each of those 226 years. Today, the trend in Washington is nearly three constitutional amendments per week[ref 1]. It appears that rational minds usually prevail and most of those proposed amendments never make it to the evening news.
However, they don't really have to amend the Constitution if there are other ways to implement laws. Over the last 75 years or so the number of federal laws and the number of federal regulations have exploded. Federal Laws, known as United States Code, consume 51 titles spanning on the order of 200,000 pages. It's so big and convoluted that nobody knows how many federal crimes exist (Estimates are in the neighborhood of 4000-5000). It doesn't stop there, however, because we've alsi introduced all sorts of Federal rules and regulations - permanent administrative laws - aren't even included in U. S. Code. The Code of Federal Regulations (CFR) started in 1936 at 11 pages. Today it is over 163,000 pages and divided into over 200 books. U.S. Code and CFR rulebooks grow monotonically. Our situation is so convoluted that every so-called free citizen is most likely a criminal in the eyes of our federal government. Is this really the government by the people and for the people that was envisioned? No, not even close.
However, they don't really have to amend the Constitution if there are other ways to implement laws. Over the last 75 years or so the number of federal laws and the number of federal regulations have exploded. Federal Laws, known as United States Code, consume 51 titles spanning on the order of 200,000 pages. It's so big and convoluted that nobody knows how many federal crimes exist (Estimates are in the neighborhood of 4000-5000). It doesn't stop there, however, because we've alsi introduced all sorts of Federal rules and regulations - permanent administrative laws - aren't even included in U. S. Code. The Code of Federal Regulations (CFR) started in 1936 at 11 pages. Today it is over 163,000 pages and divided into over 200 books. U.S. Code and CFR rulebooks grow monotonically. Our situation is so convoluted that every so-called free citizen is most likely a criminal in the eyes of our federal government. Is this really the government by the people and for the people that was envisioned? No, not even close.
What happened?
The fears and concerns of the Anti-Federalists are coming true. The growth of prosperity and power of the United States over the first century enabled the rise over the most recent century to domination by people who call themselves "progressive" but are in fact statists. Statism is a belief system that the State (i.e. the government) should control social and economic policies. Statism is the opposite of anarchism. The implementation details result in different labels: communism, fascism, Naziism, socialism, or a welfare state. In all cases there is a basic need for government to be granted or to otherwise assume unlimited power. The differences among statist systems are only a matter of time and degree; the principle is the same. Under statism, the government is a legalized criminal that holds the power to use physical force in any manner and for any purpose it pleases against legally disarmed and defenseless victims. This is the path we are on today in the United States.
Prosperity and power tend to breed tyrants. Today we are living in a post-constitutional environment where statists have constructed an all-powerful centralized federal government conducting endless experiments in the pursuit of an undefined socialist utopia that cannot exist without the complete destruction of self-government and individual liberties. The spin doctors and naive believers in utopia call it compassionate progressivism, but the Framers of the Constitution called it despotism. The United States is, to be direct, in a death spiral toward a tyranny. As well-intentioned as some people might be, the unintended consequence is a federal Leviathan that can only produce an increasingly dystopian future.
What can we do?
If the statists have leveraged the gaps in the Constitution, we should consider closing those gaps. Mark Levin's recent book 'The Liberty Amendments" offers a difficult but reasonable path out of the hole we've been digging. He observes that Article V of the U.S. Constitution allows a convention to amend the Constitution to be called by two thirds or more of the States themselves. Those proposed amendments are then ratified in the usual manner via by at least three fourths of the State legislatures. As Levin points out, the Constitution gives the States significant authority to re-balance the constitutional structure for the purpose of restoring the principles of a limited federal government. This idea was, by the way, first proposed four days into the 1787 Constitutional Convention by Edmund Randolph, governor of Virginia and found its way into Article V after 4 months of discussion. Both James Madison and Alexander Hamilton described why this provision is important and appropriate in Federalist 43 and Federalist 85, respectively.
I propose renaming Mark Levin's list of eleven proposed amendments The Bill of Responsibilities, as a follow-on to the Bill of Rights. I place them here, I believe unaltered, to propagate and advocate Levin's proposed use of Article V to reorient the trajectory of the United States back toward the balanced sweet spot between anarchy and tyranny.| A Bill of Responsibilities Mark Levin's Proposed Liberty Amendments | |
| 1 | An Amendment to Establish Term Limits for Members of Congress SECTION 1: No person my 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 incumbent 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. |
| 2 | 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 Constitution. 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. |
| 3 | An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years. SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. the terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one third of the justices may be chosen every fourth Year. SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term. SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court. SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court. SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court. SECTION 7: The States' override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President. SECTION 8: Congressional or State override authority under Sections 4 or 6 must be executed no later that twenty-four months from the data of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from executing the override. |
| 4 | An Amendment to Limit Federal Spending SECTION 1: Congress shall adopt a preliminary fiscal budget no later than the first Monday in May for the following fiscal year, and submit a budget to the President for consideration. SECTION 2: Shall congress fail to adopt a final fiscal year budget prior to the start of each fiscal year, which shall commence on October 1 of each year, and shall the president fail to sign said budget into law, an automatic, across-the-board, 5 percent reduction in expenditures from the prior year's fiscal budget shall be imposed for the fiscal year in which a budget has not been adopted. SECTION 3: Total outlays for the federal government for any fiscal year shall not exceed 17.5 percent of the Nation's gross domestic product for the previous calendar year. SECTION 5: Total receipts shall include all receipts of the United States Government but shall not include those derived from borrowing. Total outlays shall include all outlays of the United States Government except those for repayment of debt principal. SECTION 6: Congress may provide for a one-year suspension of one or more of the preceding sections in this Article by a three-fifths vote of both Houses of Congress, provided the vote is conducted by roll call and sets fort the specific excess of outlays over receipts or outlays over 17.5 percent of the Nation's gross domestic product. SECTION 7: The limit on the debt of the United States held by the public shall not be increased unless three fifths of both Houses shall provide for such an increase by roll call vote. SECTION 8: This Amendment shall take effect in the fourth fiscal year after its ratification. |
| 5 | An Amendment to Limit Federal Taxation SECTION 1: Congress shall not collect more than 15 percent of a person's annual income, from whatever source derived. "Person" shall include natural and legal persons. SECTION 2: The deadline for filing federal income tax returns shall be the day before the day set for elections to federal office. SECTION 3: Congress shall not collect tax on a decedent's estate. SECTION 4: Congress shall not institute a value-added tax or a national sales tax or any other tax in kind or form. SECTION 5: This Amendment shall take effect in the fourth fiscal year after its ratification. |
| 6 | An Amendment to Limit the Federal Bureaucracy SECTION 1: All federal departments and agencies shall expire if said departments and agencies are not individually reauthorized in stand-alone reauthorization bills every three years by a majority vote of the House of Representatives and the Senate. SECTION 2: All Executive Branch regulations exceeding an economic burden of $100 million, as determined jointly by the Government Accountability Office and the Congressional Budget Office, shall be submitted to a permanent Joint Committee of Congress, hereafter the Congressional Delegation Oversight Committee, for review and approval prior to their implementation. SECTION 3: The Committee shall consist of seven members of the House of Representatives, four chosen by the Speaker and three chosen by the Minority Leader; and seven members of the Senate, four chosen by the Majority Leader and three chosen by the Minority Leader. No member shall serve on the Committee beyond a single three-year term. SECTION 4: The Committee shall vote no later than six months from the date of the submission of the regulation to the Committee. The Committee shall make no changes to the regulation, either approving it or disapproving the regulation by majority vote as submitted. SECTION 5: If the Committee does not act within six months from the date of the submission of the regulation to the Committee, the regulation shall be considered disapproved and must not be implemented by the Executive Branch. |
| 7 | An Amendment to Promote Free Enterprise SECTION 1: Congress's power to regulate Commerce is not a plenary grant of power to the federal government to regulate and control economic activity but a specific grant of power limited to preventing states from impeding commerce and trade between and among the several States. SECTION 2: Congress's power to regulate Commerce doe not extend to activity within a state, whether or not it affects interstate commerce; nor does it extend to compelling an individual or entity to participate in commerce or trade. |
| 8 | An Amendment to Protect Private Property SECTION 1: When any governmental entity acts not to secure a private property right against actions that injure property owners, but to take property for public use from a property owner by actual seizure or through regulation, which taking results in a market value reduction of the property, interference with the use of the property, or a financial; loss to the property owner exceeding $10,000, the government shall compensate fully said property owner for such losses. |
| 9 | An Amendment to Grant the States Authority to Directly Amend the Constitution SECTION 1: The State Legislatures, whenever two-thirds shall deem it necessary, may adopt Amendments to the Constitution. SECTION 2: Each State Legislature adopting said Amendments must adopt Amendments identical in subject and wording to the other State Legislatures. SECTION 3: A six-year time limit is placed on the adoption of an Amendment, starting from the date said Amendment is adopted by the first State Legislature. Each State Legislature adopting said Amendment shall provide an exact copy of the adopted Amendment, along with an affidavit signed and dated by the Speaker of the State Legislature, to the Archivist of the United States within fifteen calendar days of its adoption. SECTION 4:Upon adoption of the Amendment, a State Legislature may not rescind the Amendment or modify it during its six-year period in which the Amendment is under consideration by the several States' Legislatures. |
| 10 | An Amendment to Grant the States Authority to Check Congress SECTION 1: There shall be a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final passage by both Houses of Congress. During the engrossment period, the bill or resolution shall be placed o the public record, and there shall be no changes to the final bill or resolution. SECTION 2: SECTION 1 may be overridden by two-thirds vote of the members of each Hose of Congress. SECTION 3: Upon three-fifths vote of the state legislatures, the States may override a federal statute. SECTION 4: Upon three-fifths vote of the state legislatures, the States may override Executive Branch regulations exceeding an economic burden of $100 million after said regulations have been finally approved by the Congressional Delegation Oversight Committee [See #6]. SECTION 5: The States' override shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President. SECTION 6: The States' override authority must be exercised no later than twenty-four months from the date the President has signed the statute into law, or the Congressional Delegation Oversight Committee has approved the final regulation, after which the States are prohibited from exercising the override. |
| 11 | An Amendment to Protect the Vote SECTION 1: Citizens in every state, territory, and the District of Columbia shall produce valid photographic identification documents demonstrating evidence of their citizenship, issued by the state government for the state in which the voter resides, as a prerequisite for registering to vote and voting in any primary or general election for President, Vice President, and members of Congress. SECTION 2: Provisions shall be made by the State legislatures to provide such citizen-designated photographic identification documents at no cost to individuals unable to afford fees associated with acquiring such documents. SECTION 3: Early voting in any general election for President, Vice President, and members of Congress shall not be held in excess of thirty calendar days prior to the national day of election except for active duty military personnel, for whom early voting shall not commence more than forty-five calendar days prior to the national day of election. SECTION 4: Where registration and/or voting is not in person but by mail, citizens must submit an approved citizen-designated photo identification and other reliable information to state election officials to register to vote and request ballots for voting, no later than forty-five calendar days before the primary or general elections for President, Vice-President, or members of Congress. Registration forms and ballots must be returned and signed by the voter and must either be mailed or hand-delivered by the voter to state election officials. If delivered by a third party, the voter must provide written authorization for the person making the delivery and the third party must sign a statement certifying that he did not unduly influence the voter's decisions. SECTION 5: Electronic or other technology-based voting system, for purposes of registering and voting in national elections, are proscribed unless a reliable identification and secure voting regimen is established by the state legislature. |
The sweet spot of good governance reflects good decision-making. The sweet spot between tyranny and anarchy is a balancing act focused on making the best possible decisions with incomplete knowledge. We must balance the needs of the many with the needs of the few; we must balance the needs of today with the needs of the future; we must balance our right to pursue happiness with the responsibility to avoid undue hardship on the rights of others in their pursuits.
James Madison observed in Federalist 51 that humans are not angels, so the "the great difficulty [in framing a government] lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself". The Framers of the Constitution rejected tyranny, then tried and subsequently rejected anarchy. With the U.S. Constitution they aimed for that sweet spot between the two extremes. The result so far has been fantastic, but the task is incomplete. People on average tend to be experience-rich but theory-poor and relatively short-sighted. From my student perch, the last 226 years of evidence suggests the Framers of our Constitution on both the Federalist and the Anti-Federalist side were exceptions to the average. I believe that Mark Levin may be cut from a similar cloth as were the Framers, and has offered us all a path to renewing constitutional republicanism for another century or two. It is our right, and our duty as self-governed people to have this dialogue and, as deemed necessary, steer this ship of State back toward safer waters.
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