Mark Levin, author of Ameritopia, Liberty and Tyranny, and other conservative defenses of the United States Constitution, has published a manual on how to save and preserve the Republic and its Constitution.  Entitled The Liberty Amendments, it immediately rocketed to the top of the New York Times list of best sellers.  The book received a generally favorable reception among conservative bloggers and commentators and wildly adoring praise from his enormous listening audience.

Mr.  Levin's thesis is that the Constitution has been abused by progressives and is in danger of becoming a relic of the past which no longer protects our fundamental liberties.  His proposal is for the states to call for an Article V constitutional convention, bypassing Congress, in order to consider a collection of amendments designed to strengthen and reinvigorate the Constitution.

As is typical with such proposals, much or most of the discussion has centered on the risks and benefits of an Article V convention.  It is largely uncharted territory and worthy of debate.  I have little to add to that debate except for one point that seems to get little attention.  You still need three quarters of the states (currently 38 states) to ratify any proposed amendment.  Any 13 states can block the results of a convention.  I doubt that any useful amendment is likely to cross this barrier.  If political alignments change enough to permit ratification, we will be dealing with a different America from the one we inhabit today.  With that skepticism noted, it is still interesting to examine the suggested amendments.

I have read very little debate on the substance of his eleven specific proposed amendments.  That debate is more interesting to me than quibbling over the article V stuff.  To be fair to Mr.  Levin, he has not proposed the particular amendments as a take it or leave it proposition.  Rather, he has emphasized that they are meant to begin a debate on amendments which could be proposed to enhance the protections of our liberty in the Constitution.   It would be helpful to have the book on hand when you read this.

In an attempt to spark a discussion, I divide the proposed amendments into three groups.  These divisions do overlap, but I find it a helpful way to focus arguments and to express my own point of view. 

Group 1: Emphasis on Individual Rights.

A.     An Amendment to Protect Private Property

B.     An Amendment to Promote Free Enterprise

C.     An Amendment to Limit the Federal Bureaucracy

D.    An Amendment to Limit Federal Spending

E.     An Amendment to Limit Federal Taxes

F.      An Amendment to Protect the Vote

Group 2:  Emphasis on State Legislature Rights.

A.     An Amendment to Grant the States Authority to Check Congress

B.     An Amendment to Restore the Senate

C.     An Amendment to Grant the States Authority to Directly Amend the Constitution

Group 3: Others

A.     An Amendment to Establish Term Limits for Members of Congress

B.     An Amendment to Establish Term Limits for Supreme Court Justices

C.     Super-Majority Legislative Override

My own priorities cause me to favor expansions of liberty for individuals, as opposed to state legislatures.  Obviously there are no bright lines separating these, but the Group 1 amendments appeal to me more.  I listed them in order of my approval.  Note also that I have split some of Mr.  Levin's amendments in two where I thought they dealt with too much in a single amendment.

1A: An Amendment to Protect Private Property

This is the heart and soul of the Liberty Amendments.  Private property rights undergird our entire system.  Real protection -- with enforcement teeth -- would act as a strong barrier to government abuse.

My criticism of Mr.  Levin's suggested amendment is that it doesn't go far enough to allow individuals to protect their rights.  This is a problem shared by nearly all the proposed amendments and by the Constitution itself.  If any level of government takes your property unjustly, your only recourse is an expensive lawsuit.  Often, it is necessary to put your entire net worth on the line against a government which risks nothing but being forced to fairly or partially compensate you.  I do not know the "right" language to create a more level playing field.  A balance must be struck between allowing frivolous claims to tie up the courts and prohibitively high cost hurdles.  Perhaps local and regional judges and juries modeled after small claims courts could be established.  Appeals by the government could be accompanied by full payment of legal fees for the plaintiff.  Perhaps some form of arbitration could screen cases.

There is a general principle to be considered here.  Governments and their agents at all levels, from local school boards to the White House must be forced to obey all laws and especially their own rules.  This is a monumental task and is unlikely to be accomplished with a single Amendment, but any positive steps would be welcome.

For now, I suggest that Mr.  Levin's amendment be enhanced with something like:

Congress shall establish inexpensive local and regional venues to hear citizens' claims against violations of their property rights.   The Government shall have a right to appeal these decisions but must first pay any awarded damages and all legal expenses of the complainants during the entire appeals process.

Further language extending this Amendment to the several states should be added.  The abominable decision in the Kelo case must be unambiguously repudiated. 

1B.  An Amendment to Promote Free Enterprise

This amendment seems just about right.  It should strip from the federal government the temptation to justify every attack on individual liberty with a vague reference to the commerce clause.  The best thing we can do to support this amendment is to try to construct tricks to get around it.  We can be sure that liberals will do just that if it passes.  That may help to suggest even better or more explicit language. 

Arguably, this amendment is more about state legislative prerogatives than individual rights.  Still, its impact is likely to be as an antidote to threats to individual rights.

1C.  An Amendment to Limit the Federal Bureaucracy

Section 1 provides that all federal departments and agencies expire unless reauthorized every three years by stand-alone Congressional votes.   This is an example of a perfectly targeted Amendment.  It is short, to the point, and unambiguous.  I support it wholeheartedly.

Section 2 provides that all executive branch regulations which burden the economy by more than $100 million dollars as determined jointly by two named agencies (GAO and CBO) be submitted for approval to a permanent standing Congressional committee.  I like the intent but not the language.  First of all, it is bad to use current dollars in a constitutional provision.  One need only look to the embarrassing test of twenty dollars in the seventh amendment provision for jury trials.  Perhaps 50,000 ounces of gold could be used.  Some more discussion is needed.  Beyond the dollar amount, there is the enshrinement of two sub-constitutional agencies in the process.  I just don't like that.  Let Congress decide on its own which regulations to examine based on application by (say) 25% of the members.

Sections 3, 4, 5 are just technical and seem harmless.  Some such rules are necessary.  One thing I do not like is a careless reference to majority leaders.  Political parties were never enshrined in the Constitution before.  If anything, we should try to limit the powers of individual members of Congress.  Why should Nancy Pelosi, or John Boehnor, or Harry Reid have near dictatorial power over what bills get to the floor?

1D.  An Amendment to Limit Federal Spending

I split Mr.  Levin's Amendment to limit spending and taxes into two parts.  I thought he had too much in one amendment, hardly much of a criticism.  I can understand putting them together.  One could easily imagine an inconsistency developing over time between spending limits and taxation limits.  Anyway, for now, it is easier to examine them separately.

My main issues tend to be technical.  I worry about enshrining numbers from outside agencies and various statistical estimates in the Constitution.  Mr. Levin does a heroic job, but leaves a number, 17.5% of current year GDP, as a necessary calculation.  My first suggestion would be to use last year's or a weighted average of several years of GDP, maybe with 18%.   There must be better numbers than GDP to use, but that will require some research and thought.

Let there be no mistake about it.  I thoroughly support the intent of this amendment.

1E.  An Amendment to Limit Federal Taxes

There is a serious problem of definition in Section 1 of this Amendment.  The other sections seem just fine.  In Section 1, tax collections are limited to 15% of annual income from whatever source derived.   The definition of "tax" is left out.  Currently the FICA tax alone takes 15% of self-employment income up to a ceiling.  I can only read the amendment as counting that toward the total allowable tax.   Does the share of the payroll tax paid by employers count toward the individual tax paid? I do hope that is the intent.  Also, the 15% doesn't take into account deductions and exclusions of various kinds.  Again, I hope that is the intent.  If an individual earns $100,000 and pays 30% of adjusted income of $50,000 (i.e.  $15,000), that would seem allowable.  That is good too.  I would like some clarification on whether Congress can tinker with the definitions.

There are far better ways to organize the tax code so as not to rely on total income as much as we do today.  More care needs to be devoted to the wording of this Amendment.

1F.  An Amendment to Protect the Vote

This is topical and useful.  Something must be done to protect elections.  I worry that technology may outpace any single amendment.  I have no problem with the suggested provisions, though I would limit early voting to ten days or even forbid early voting altogether except in extenuating circumstances.  I'd like to hear other suggestions on the details of this amendment.

2A.  An Amendment to Grant the States Authority to Check Congress

Without giving the states a shorter path to amending the Constitution, this amendment allows the states to block mere legislation.  It is a brilliant idea.  For the first time in our history, it gives teeth to the Tenth Amendment.  I enthusiastically endorse it.

2B.  An Amendment to Restore the Senate

I have some trouble with this one.  For years, I have been hearing fellow conservatives argue for repeal of the 17^th Amendment.  This would return election of senators to the respective state legislatures.  I understand the pros and cons.   I remain unconvinced that the state legislatures are honorable enough and so little corrupted that this measure is a good idea.  Maybe years of living in Illinois have clouded my thinking.  I do not really oppose it so much as I don't care.   Aside from the merits, this seems likely to be the most unpopular of the Levin Eleven among voters, who will be easily swayed by its superficially undemocratic nature.  If we could get some of the other amendments ratified, it would lessen the impact of repeal of the 17th anyway.

Speaking of restoring the Senate, perhaps a 3/5 or even 2/3 super-majority should be written into the Constitution, at least for certain types of bills.  Maybe it should require fewer votes to repeal legislation than to pass it.  There are lots of variations possible here.

2C.  An Amendment to Grant the States Authority to Directly Amend the Constitution

This one just plain scares me.  Once an Article 5 convention has succeeded, why would another way to amend the Constitution be so important? I strongly oppose lowering the ratification hurdle from 3/4 to 2/3.   There may come a day when only 13 or 14 states are available to save the Republic from a bad amendment.

3A.  An Amendment to Establish Term Limits for Members of Congress

This is one of those issues which command passionate debate.  In its long history, Congress has had some great statesmen with long, storied careers.  It has also been home to many more long-serving hacks who bring home the bacon to their constituencies.  Identifying these characters is not always easy.  No doubt Tip O'Neill would appear prominently on both lists depending on who is doing the listing, as would most famous lawmakers.  I would like to see discussed some more innovative ways to deal with the problem such as requiring a super-majority in an election to serve more than two terms.  I'll come down neutral on this one with a slight bias toward term limits, reserving final judgment for now.

3B.  An Amendment to Establish Term Limits for Supreme Court Justices

I like this a little less than the similar amendment for Congress.  I can see it causing problems or saving the Republic.  I'm just not ready to support or oppose this one for now.

3C.  Super-Majority Legislative Override (of Supreme Court)

Surely, this can't mean that Congress becomes a higher Court on ALL business before the Court.  Is it only meant for decisions of constitutionality?  Without clarification, I have to vote no.

Other Possible Amendments

There are certainly other important issues left unaddressed by Mr.  Levin's list.  Given the nature of the constituency likely to support an Article V convention, it is hard to imagine a pro-life amendment not being proposed.  The wording and substance would be very important.  I support some such amendment.

The rules of Congress give far too much power to the party leaders, particularly the majority party leaders.  I would like to hear proposals to lessen this power.

We have just seen that the budgetary process is badly broken.  Not everything can be fixed by amending the Constitution, but I have an idea that might help here.  We have been governing by "continuing resolutions" for five years.   By not examining appropriations more carefully, Congress has abdicated its most important function.  I propose an amendment to force Congress to pass appropriations in more bite-sized chunks.  Say no more than 15% of the entire budget may be included in any one bill.  Those appropriation bills should have to be voted on as stand-alone separate bills and should group similar budget items together.  The entire government should not be held hostage to a single group of appropriations.  A more controversial idea, but one I like, would be to prioritize the appropriations bills, so that, if revenues are not available in any given month, certain payments are made first.  The top priority bill should be constitutionally mandated to contain payments of interest and principal on the national debt.

None of the branches have proved adept at auditing themselves or each other.  I am almost tempted to propose a fourth branch of government to conduct regular financial audits of the other three.  That is probably overkill.  In theory, Congress audits all spending but, perhaps, that mandate needs an amendment to strengthen it.  I won't propose specific language here, but it should be strong enough to force a timely audit of such programs as TARP, the stimulus bills, and most important of all, the Federal Reserve.

I think an amendment forcing more transparency is needed.  The current disgrace of an Attorney General stonewalling Congress on the Fast and Furious subpoenas should be ended once and for all.  I defer to Mr.  Levin or other lawyers to come up with suitable language, but failure to comply should lead to immediate firing.  Beyond that, every memo, e-mail, or other document generated by the executive departments belong to the American People.  No court order or FOIA request should be required.  Those should all be online in real time.  If you work for the government and you send out an email, we all get to see it at the same time the intended recipient sees it.   Some exceptions should be carved out for national security issues demanding secrecy.

The wish list could go on, but I'll stop here.  Certainly, some of the list could be dealt with by legislation.  I am looking forward to comments from the AT readership.  I am sure there are many good ideas in that audience.

I close by thanking Mr.  Levin for his thoughtful and patriotic attempt to save the Constitution.  I hope he takes my criticisms as positive and constructive.  If he reads this, I encourage him to get in touch with me.