Francisco Ferrer

The vital point is that ratifying a slate of new amendments (or somehow putting a new Jefferson in the White House) won't work, won't matter, won't make much difference until there has first been a profound shift in the American Weltanschauung. Pundits who promote quick fixes while ignoring the necessary long march of education are typically the ones most easily persuaded to compromise fundamental principles.

I can understand why some conservatives and libertarians would be excited, on first glance, at Levin's idea. We Good Guys, i.e. those who of us who believe in capitalism and limited government, will convince "two thirds of the several States" to call a convention for "proposing Amendments." Then we'll make up for all the lost time we spent trying to fix Congress and the Supreme Court. We'll term-limit politicians and justices, put a cap on spending, sunset federal agencies, redefine the Commerce Clause, etc. And on the Seventh Day we'll rest. What nobody has bothered to grapple with is how the Good Guys are going to keep the blue states from also sending representatives to the Con-con. Are we to imagine that the Democrats, the progressives, the radical feminists, the eco-socialists, the Occupy Wall Streeters, the Mothers for Gun Control, the anti-"hate" groups, and every other left-wing critter is just going to sit back and let the right have all the fun? How would you like a People's Rights Amendment or a Third Term Obama Amendment or an Abolish the Electoral College Amendment? Yes, I'm sure the red staters will stand strong and not let any foolishness get past them, just the way, say, John Boehner has. But what if it's the usual game of tit for tat? What if we have to endure a Living Wage Amendment in exchange for our precious Anti-Flag Burning Amendment? Then what?

FF: Your solution is nullification, correct? A... Among other methods. For inspiration read Eric Frank Russell's short story ". . . And Then There Were None" (expanded to the novel The Great Explosion). While I do not endorse certain egalitarian aspects of the Gands' society, their attainment of liberty through non-cooperation with evil could serve as a model for the contemporary freedom movement.

Article V provides for a "Convention for proposing Amendments." The term "Constitutional convention" or "Con-con" is simply a short-hand for that process. Throughout this thread I have repeatedly referred to Article V and thus--your wishes to the contrary--have never misrepresented Levin's position as calling for anything other than the assembly specified in Article V. Incidentally, the Article V process is widely referred to as a "Constitutional convention," even among Mr. Levin's admirers. See, for example, here and here and here. Of course, a legitimate concern, not yet addressed on this forum, is what might happen once a convention were in session. Levin seems to think that a runaway convention is improbable because, well, because the Constitution won't permit it. I'm trying to think of the last time that permanent assembly of politicians in Washington was restrained by the words that follow "We the People."

The irony of Levin's Article V "Con-con" proposal is that there was a moment in U.S. history when a new Constitutional covention was just one vote short of becoming a reality. It was just a century ago, and the the purpose of the convention would have been to provide for the direct election of senators. Feeling the heat, Congress passed the 17th Amendment--which Mark Levin would now like to see repealed by means of a new Con-con. I was recently told that in political affairs one should take a cautious view of human nature. With that in mind, we should remember that the last time a convention was successfully convened to revise the frame of government, it overstepped its authority, threw out the existing charter and adopted a far more centralized system. Remember "The Monkey's Paw."

This proposal is a very bad idea in principle. Practically speaking it would be of no effect. The Supreme Court has been pretty subservient to both Congress and the Executive since the late 1930s after the Roosevelt Administration intimidated the Justices by trying to pack the Court (with the help of my grandfather). The problem is you cannot change the government by changing the Constitution respecting its growth and size. Look what happened right out of the constitutional box in the Washington and Adams Administrations, political expansion, Indian Wars, the Mexican War, the Civil War, etc. And if you can't expand the state with war visit upon us an economic calamity. --Brant Yes, the premise of the supermajority override appears to be that two-thirds of the members of Congress are better at interprepreting the Constitution than a majority of nine justices. But why must that be the case? And why anyone would think that the override serves the separation of powers (checks and balances) is mystifying. Of course, you are right that the judicial branch is very much the creature of the legislative. Giving Congress veto power would only make it official.

FF, You just did. Think about it. Michael Great. A person whose "message . . . is not the wrapper" is someone who has refuted false allegations.

Yes, I have discussed history a great deal on this forum. One unavoidable characteristic of history is that in order to do it right you have to do the hard research, Regrettable but nonetheless true. Yes, I did point out the similarities between the outline of Levin's book and an earlier work by Barnet, but only because originality is a perfectly legitimate criterion in the realm of literature. Intimidation? The only one who should feel intimidated is a person who borrowed without proper credit--if there is such a character in this case. If Levin is in the right, I am sure he will put forth his case for independent authorship. But given the striking similarities of the 2009 work and the 2013 work, one can hardly be blamed for raising suspicions. And rather than ignoring Levin's ideas, I have written at length about the weakness of amendments (the high court can ignore them no matter how plainly written) and specifically attempted to engage discussion on Levin's proposal to have supermajorities of Congress override the Supreme Court. So far, no one has taken up my last gambit. Instead the response has consisted of accusations of hidden agendas on my part, and even a veiled suggestion of National Socialism. Prove it.

In claiming that I say one thing yet mean something different, you are essentially accusing me of intellectual dishonesty, which I take to be a serious charge. If you have no proof, you have no business airing such a charge.

If current political tactics don't pay off, try asking your opponents about their fascination with the Nazi Party.

FF, Do you have a reading comprehension problem? I'll try to see what I can do with further emphasis. Helpfully, Michael Thanks for clearing that up. We now know that that you are certain ("definite") that I am promoting a message other than the "wrapper" but that you are unwilling or unable to produce any evidence for that conclusion.

I know that was the position taken by the late Andrew Galambos. I do not know what the basis of his claim is, for when it comes to scholarship, I am a reader, not a listener. Correct me if I am wrong, you appear to have a fascination with the National Socialist German Workers' Party, aka NAZI Party, why would that be? I wasn't aware that I had. What makes you think that? I don't even recall having discussed the Nazi Party on this site. Perhaps somehow you associate three-card Monte, that game I'm supposed to be expert at, with the Nazi Party.

I know that was the position taken by the late Andrew Galambos. I do not know what the basis of his claim is, for when it comes to scholarship, I am a reader, not a listener.

Three-card Monte is a confidence game in which a player is tricked (swindled, defrauded). Who here has been defrauded?

FF, This is a great example of discussing the wrapper and not the message. I never said Calhoun (or others since him) argued his case as a covert message for something else. Calhoun is clear enough. * * * Your statement actually is a fallacy of plain old garden-variety mis-attribution. Maybe with some misdirection thrown in for good measure. I apologize for any mis-attribution, but I had only vague references to "wrappers" and "syringes" to deal with. In Post #36 you wrote, "No one I know of would explain modern application of nullification by referring to a 1919 encyclopedia that emphasized Calhoun's 'perfection' of the theory, for example, unless they had a further message to add they knew would not fly if spoken out loud." Now, since you you were unwilling to divulge what "further message" I supposedly had in mind, I was left to guess at it. I guessed that it might have been the slavery issue. If I am wrong, then you can clear things up nicely by stating explicitly what "further message" you were referring to. You don't like mis-attribution. Nor do I. In all fairness then, I should be told what message I'm being accused of furthering. Your use of the word "definitely" in the sentence "I'm not sure what YOUR message is (I haven't read enough of your stuff to arrive at a conclusion), but I've seen enough to know it's definitely not the wrapper," implies certainty. Certainty depends on evidence. What then is the evidence?

Frankly, I have only a vague idea of what you're driving at. So let's move on. Calhoun was and remains the most prominent theorist of nullification. To discuss the subject without a nod to his original contribution in A Disquisition on Government would border on plagiarism. Perhaps the point you wish to make is that Calhoun was also a defender of slavery. No one denies that. But as I observed previously on this forum, ideas must be judged separately from the reputation of the speaker. So, to take an example, Ayn Rand repeatedly ackowledged her admiration of The Declaration of Independence, a document penned largely by Thomas Jefferson. She wrote, inter alia, "It is in this context—from the perspective of the bloody millennia of mankind's history—that I want you to look at the birth of a miracle: the United States of America. If it is ever proper for men to kneel, we should kneel when we read the Declaration of Independence." In embracing the most notable work of Thomas Jefferson, a slaveholder until his death and an opponent of manumission laws, has Rand automatically allied herself with the institution of slavery? And what of Aristotle, whom Rand regarded "as the cultural barometer of Western history. Whenever his influence dominated the scene, it paved the way for one of history’s brilliant eras; whenever it fell, so did mankind." Yet Aristotle wrote, But is there any one thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature? There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule. Despite these words, could anyone reasonably argue that Rand's admiration for the Greek philosopher was a "syringe, i.e., the delivery mechanism" for her covert admiration of slavery? You may disagree with the nullification arguments of Calhoun and others since him, but to dismiss them out of hand as a covert message for something else, is to commit what Rand called the Fallacy of Package-Dealing. If you are in fact "a strong admirer of checks and balances," what harm could there be in adding additional obstacles to the exercise of federal power? What better way to stop the outright socialism of Obamacare than to support the act of nullifying it at the state level? Furthermore, what would lead you to believe that I do not share your view that "to bully and/or abuse power is one of the fundamental choices and temptations all humans face"? In fact, I see checks and balances, nullification and secession as just a few of the means civilized people must employ to save themselves from the bullies.

I must admit to warming up to George Will's columns in the past few years. They are now more focused on liberty than on his old motif, "statecraft," i.e. national "strength." Today's column is an exception. Starved By The Sequester is a long whine about what the dreaded sequester is doing to federal cancer research.

Given the context of this thread (Levin's proposed amendments to limit federal power through term limits, spending limits, overriding the Supreme Court, the power of states to override a federal statute by a three-fifths vote, etc.), I do not see how a concern about preserving (or reviving) slavery is pertinent. Yes, secession could be used to effect bad forms of government--but that is no less true of constitutions and amendments thereof. The original Constitution, unlike the Articles of Confederation it usurped, recognized the institution of slavery. And during the history of the republic, while one form or slavery was outlawed, another form was implemented. I need only point to the change made in 1913 that gives Congress "power to lay and collect taxes on incomes." If we should be frightened of a process by which a state would withdraw in order to, say, execute women who have abortions, shouldn't we be frightened of the amendment process which could accomplish the very same thing? If you are determined that no rights ever be curtailed, I wonder if you now intend to read Levin's book with some measure of skepticism. According to one post on the Amazon link you provided, Levin favors allowing the overriding of Supreme Court decisions with Congressional supermajorities. How well would that have worked in Powell v. Alabama or Brown v. Board of Education or Griswold v. Connecticut or Regents of the University of California v. Bakke or Citizens United v. Federal Election Commission?

Whenever I see the word "nullification" appear in some quarters, the word "secession" is right behind. Just like here. And if it arrives, off we go in mutual mental masturbation mode. Lots of blah blah blah and dogs barking as the caravan passes by once again and the government gets bigger. The truth is you have to make a stand. When you disagree with the federal government and have intent to do something about it, you either want to fix the government and make it smaller, focused on individual rights, etc., or you want to dismantle it altogether. You can't do both. I fall into the first category. I'll look into Woods. Thanks for the recommendation. His approach sounds a lot more nuanced. Michael Here's what Ayn Rand said about secession: "If a province wants to secede from a dictatorship, or even from a mixed economy, in order to establish a free country—it has the right to do so." Dictionary.com defines "revolution" as "an overthrow or repudiation and the thorough replacement of an established government or political system by the people governed." By this measure, our own American Revolution of 1775–83 was not a revolution inasmuch as it did not involve the "thorough replacement" of the British Crown. Instead we can more properly refer to it as a war of secession, "secede" being defined as "to withdraw formally from an alliance, federation, or association, as from a political union, a religious organization, etc." Thus any criticism you may have of secession must also apply to the events of 1775–83. Did the Founders only have a choice between 1. "fixing" the government of Great Britain and making it "smaller, focused on individual rights, etc.," or 2. dismantling it altogether? Obviously not. If we condemn all secession, we would have to include: Portugal's secession from Spain, 1640 Belgium's secession from the Netherlands, 1830 Nicaragua's secession from the Federal Republic of Central America, 1838 Norway's secession from Sweden, 1905 Austria's secession from Nazi Germany, 1945 Lithuania's secession from the Soviet Union, 1990 For the most part these secessionist movements did not involve armed revolt or the shedding of blood. Is American nullification or secession "doable" at the present? We shall see. There may be enough states, businesses and individuals whose non-cooperation with the Affordable Health Care Act will make it a dead letter within months of its taking effect. Certainly the widespread public resistance to Prohibition can be held up as an exemplar of nullification by the masses.

Again FF, assuming your analysis is 100% correct...what do you propose in terms of action? Nullification.

This is not off topic at all. The vital point shown in Obama's actions is that a President does not require any legal defense at all for his policies--much less a valid Constitutional defense. As long as he is President and has the might of the nation's armed forces at his command, the Constitution will mean whatever he "chooses it to mean — neither more nor less." Do well-intentioned drafters of new amendments such as Levin and Barnet really believe that elegant lines of ink on paper will stop a Lincoln or an Obama from imposing their will upon the nation?

I certainly don't mind sharing information about my past as both a critic of and contributor to the building of bridges, and, just to be clear, I never said it was "improper" to ask me about it. I wanted only to point out whatever I have done or not done to advance liberty is not relevant to any criticism I may have of Mr. Mark Levin.

Very nicely done. You say what you wanted to say while denying the need to say it. Excellent rhetorical trope. I didn't deny the need to say it. Rather I called attention to the irony of having to make such a statement in this setting.

Well, well...look at that, Chapter 7, footnote 4: Mr. FF: There is an old homily that explains that "I never met a critic who built a bridge!" So my simple question is, what have you done, in reality, to restore our Constitutional Republic? A... How does Levin's acknowledgement of Barnet's scholarship on the Commerce Clause equate to giving him credit for the idea of using Article V to adopt several new Constitutional amendments? You can find the referenced Barnet essay here. It has nothing to do with his "Bill of Federalism." As to your personal question, I've been active at both the national and local level in numerous efforts to expand individual freedom, including the National Committee to Legalize Gold (1974), the Committee Against Registration for the Draft (1980), and Bureaucrash (2002). Over the past forty years I've donated thousands of dollars to pro-freedom organizations, think tanks, magazines and websites. I shouldn't have to point out--expecially to members of this forum--that the truthfulness of a statement has nothing to do with the ideological credentials of the speaker.

Barnet proposed using the Article V "Con-con" method of amendments in 2009; Levin admits to only recently coming around to endorsing that method. Barnet has 10 amendments, Levin 11. Barnet's proposal includes limiting the power to tax and spend; limiting use of the Commerce Clause; limiting the terms for Congress and the Supreme Court; preserving private property and commerce. Ditto Levin's. As to my point about the 13th Amendment, no document, not even a hallowed scrap of parchment, has the inherent power to bind officials to read it correctly or follow its strictures. in his A Disquisition on Government, John C. Calhoun explains: A written constitution certainly has many and considerable advantages; but it is a great mistake to suppose, that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers. Being the party in possession of the government, they will, from the same constitution of man which makes government necessary to protect society, be in favor of the powers granted by the constitution, and opposed to the restrictions intended to limit them. As the major and dominant party, they will have no need of these restrictions for their protection. The ballot box, of itself, would be ample protection to them. Needing no other, they would come, in time, to regard these limitations as unnecessary and improper restraints — and endeavor to elude them, with the view of increasing their power and influence. The minor, or weaker party, on the contrary, would take the opposite direction — and regard them as essential to their protection against the dominant party. And, hence, they would endeavor to defend and enlarge the restrictions, and to limit and contract the powers. But where there are no means by which they could compel the major party to observe the restrictions, the only resort left them would be, a strict construction of the constitution, that is, a construction which would confine these powers to the narrowest limits which the meaning of the words used in the grant would admit. To this the major party would oppose a liberal construction — one which would give to the words of the grant the broadest meaning of which they were susceptible. It would then be construction against construction; the one to contract, and the other to enlarge the powers of the government to the utmost. But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major, when the one would have all the powers of the government to carry its construction into effect — and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would be overpowered. At first, they might command some respect, and do something to stay the march of encroachment; but they would, in the progress of the contest, be regarded as mere abstractionists; and, indeed, deservedly, if they should indulge the folly of supposing that the party in possession of the ballot box and the physical force of the country, could be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the constitution. For when these, of themselves, shall exert sufficient influence to stay the hand of power, then government will be no longer necessary to protect society, nor constitutions needed to prevent government from abusing its powers. The end of the contest would be the subversion of the constitution, either by the undermining process of construction — where its meaning would admit of possible doubt — or by substituting in practice what is called party-usage, in place of its provisions — or, finally, when no other contrivance would subserve the purpose, by openly and boldly setting them aside. By the one or the other, the restrictions would ultimately be annulled, and the government be converted into one of unlimited powers. Now let us apply this to the 13th Amendment. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. The logical consequence of this amendment should be that no man, unless convicted of a crime, would ever be made another's slave. However, the actual consequence is that slavery is prohibited everywhere--except where it is not prohibited. The Constitution is the law of the land--except where it is not the law of the land. During Worldf War I, draftees rightfully challenged conscription on the grounds that being forced to serve in the military, a form of involuntary servitude, is unconstitutional. Yet in Butler v Perry (240 US 328 [1916]), the Supreme Court ruled: [The 13th Amendment] introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers. In other words, the Supreme Court, being a product of the parties that favored the power of the government to make war without limitation, "opposed the restrictions intended to limit them," even though those restrictions were as plain as day and part of the very document the members of the Court swore to uphold. Those who brought suit against the government could reasonably object that the phrase "no slavery . . . shall exist within the United States" means exactly that. It should apply to everyone, plantation owners and generals alike. But what good does the ability to read plain English do for the losing side? To repeat Calhoun: . . . of what possible avail could the strict construction of the minor party be, against the liberal construction of the major, when the one would have all the power of the government to carry its construction into effect and the other be deprived of all means of enforcing its construction? For this reason those who advocate for smaller government should place little faith in the power of parchment--even with brand new amendments written in the clearest prose--to restrain flesh and blood politicians.