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Mark Levin Makes A Strong Conservative Case With Weak Constitutional Arguments (Forbes.com) August 29, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

It’s not unusual when a progressive scholar publishes a book on how outmoded and anachronistic our Constitution is, and how it could be updated and improved. Professor Sanford Levinson’s Our Undemocratic Constitution (2006) argues that the document is full of structural impediments to progress (the Founders called them checks and balances) that should be eliminated. Professor Larry Sabato’s A More Perfect Constitution (2007) goes further, arguing that the Constitution needs an extreme makeover and proposing 23 specific revisions from growing the size of the Senate and House, to a one-term presidency (with the possibility of a two-year performance bonus), term limits, new election cycles and the like. Professor Louis Michael Seidman, in On Constitutional Disobedience (2012), decries the “archaic, idiosyncratic and downright evil provisions” in our Constitution and encourages leaders to stretch and ignore our founding document in order to solve problems.

What is more surprising is that a similar book has come from the conservative side, radio talk-show host Mark Levin’s The Liberty Amendments (2013), and the fact that in its first weeks on the market it sits atop the New York Times nonfiction bestseller list. Arguing that the U.S. “has entered an age of post-constitutional soft tyranny,” Levin advances 10 amendments that he argues will not modernize the Constitution but rather restore and preserve it. What follows is a strong conservative case on what’s wrong with America—overspending, over-regulation, too much federal power in every branch—and a much weaker argument on how a series of constitutional amendments could fix it.

I should admit that I don’t get conservative reformers. They sound a lot like the neo-conservatives who said let’s admit that the era of big government is here to stay, and then let’s use big government to advance our own causes. The whole notion of adding ten lengthy amendments to the Constitution (it only has 27 now, and the first 10 came right out of the starting blocks) to fix all our problems seems like the grandiose activism of a utopian progressive, not the reserve of a traditional conservative. It certainly isn’t the conservatism of William F. Buckley, who famously said, “A conservative is someone who stands athwart history yelling, ‘Stop.’”

As a conservative I tend to think more of our problems in public policy are caused by flawed people than flawed systems. And I am suspicious of the long-term efficacy of reform. Take campaign finance reform as a classic case. We do a series of reforms, and they work for about a year until everyone figures out the new rules of the game and how to get around them. Then we are back to needing more reform. I mean, seriously, is the problem with Obama and his progressives that there are not enough rules to bind them up and make them behave? I seriously doubt it.

Levin rightly points out that there are two ways to amend the Constitution. The traditional approach is for Congress to pass an amendment by a two-thirds vote of both houses, and then 3/4ths of the state legislatures must approve it. But a second path is for 2/3rds of the state legislatures to ask Congress to call a convention on amendments which, in turn, would have to be approved by 3/4ths of the state legislatures. While admitting this has never been done successfully, this is Levin’s proposed course for considering the ten amendments he proposes. It’s not a terribly realistic prospect, if perhaps a bit more likely than getting 2/3rds of both houses of Congress to approve anything. The one thing you might be able to get 2/3rds of states to agree upon is that the federal government has taken too much of their power, which underlies a lot of Levin’s proposals.

Several of Levin’s ideas don’t strike me as especially conservative—for example 12 year term-limits in Congress ultimately take away the people’s right to elect whom they wish, and the experience of states like California is that the main implications of this are to lose legislative memory and strengthen the hand of professional staff. And some of his suggestions don’t seem to rise to the level of constitutional importance—for example, rather specific rules about spending caps or limiting the federal bureaucracy. In most respects, Levin sounds like he’d just like to be constitutional czar for a day and try to fix everything with new words in the Constitution.

The fundamental problem with reform is that it is more tinkering than it is fixing. As Thomas Carlyle said, “To reform a world, to reform a nation, no wise man will undertake; and all but foolish men know, that the only solid, though a far slower reformation, is what each begins and perfects on himself.” We need reform in our electorate and in our leaders far more than we need 10 new amendments in the Constitution.


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