As the Republican Party meanders about, apparently under the assumption that publishing an RNC election post-mortem was all it would take for the party’s failings to correct themselves in time for the next election, conservatives remain hungry for bolder ideas to ensure that their elected representatives not only win, but make victories count toward real long-term transformation of government.
The Right has yet to coalesce around a path forward amidst our critiquing and theorizing, but so far, the most popular effort seems to be Mark Levin’s “Liberty Amendments.” Levin has been making the conservative media rounds arguing for a set of constitutional amendments designed to thwart leftists’ various abuses of federal power.
Several of Levin’s proposals, such as legislative supermajority overrides of Supreme Court decisions and making explicit the Commerce Clause’s original meaning of interstate commerce, have obvious potential to rein in the statist agenda. Others, like congressional term limits and undoing the 17th Amendment’s direct election of senators, seem like wishful thinking that would have little real impact in either ideological direction.
But regardless of the amendments’ inherent merits, Levin’s plan seems to misdiagnose the country’s most pressing problem, or at least prematurely focuses on the constitutional aspect of it. James Madison noted in Federalist 51 that government would be unnecessary if men were angels, and accordingly, limits on government would be unnecessary if those doing the governing were angels. Elsewhere he warned us that “no theoretical checks–no form of government can render us secure” without “virtue in the people.”
We wouldn’t need to amend the Constitution if we had the right caliber of statesmen in politics, and if the general public was adequately educated about how our system of government was designed to work. But without either of those, what reason do we have to expect Capitol Hill would follow new amendments any better than they abide by the limits already in the Constitution?
Take the judiciary, for instance. Article III, Section 2 already gives Congress the power to make regulations and exceptions to the Supreme Court’s jurisdiction. In Federalist 78, Alexander Hamilton points out that the courts have neither arms nor purse strings with which to enforce their decisions.
Why, then, aren’t these facts enough to reign in judicial activism? Because those in elected office simply lack the willpower to answer judicial activism with a firm “no,” assert their own competing understanding of the Constitution to act upon, and make their case for it to the American people.
Restrictions on overreach and tools for punishing it can be found throughout the Constitution. Article II, Section 4 provides for impeachment of “the President, Vice President and all civil officers of the United States.” Congress’ inability to make any law touching speech and free religious exercise are clear. Lawful authority for the various policy dictates Barack Obama has unilaterally made is nowhere to be found. The 10th Amendment explicitly reserves for the states every power “not delegated to the United States by the Constitution.” And for virtually every ambiguity in the document’s text, we have more than enough written testimony from its authors to win the argument over its true meaning.
Given that Republicans aren’t using any of the above, that they can’t even unite to properly fight ObamaCare, debt ceiling hikes, or anything else currently on the docket, we can safely predict they’d be largely useless in helping any Liberty Amendments become reality. And given the sorry state of modern K-12 civics education, it’s hard to see how a large enough groundswell to enact them would come from the bottom up, through Levin’s preferred constitutional convention process.
Those are the deficiencies conservatives should be focusing on now—renewed thought and work toward getting a better class of candidates through the primary process, and grassroots campaigns across the country to replace revisionism with true founding principles in public school curricula. To dream of amending the Constitution before having addressed these obstacles is a bit like trying to plant a flag on a mountain you haven’t climbed yet.