The Mt. Vernon Assembly, Mark Levin and the Missing Element

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mark levin

 

Gathering today at George Washington’s Mt. Vernon estate are state legislators from across the country, as we mentioned here.  Their expressed purpose is to discuss preparatory moves toward an alteration, or alterations, to the US Constitution that would presumably reign in much of the federal overreach and expansion into our daily lives that was never meant to be there.

As we further mentioned, there has been much discussion, pro and con, about the advisability of a Constitutional Convention of this or any sort.  But as we note the occasion of the Mount Vernon Assembly, we thought perhaps, pending the results and outcomes of this assembly, some mention ought to be made of what is not being given much attention when the details of  the amendments purportedly being proposed are examined.

A stimulating commentary on the need for altering our Constitution to ….save it ….can be found here.  In it, Mr. Wolverton asks some basic peremptory questions:

In a “Frequently Asked Questions (FAQ)” document produced by the promoters of the Mt. Vernon Assembly, readers are assured that the overarching goal of the meeting is to enable states to become “proper stewards of [their] constitutional responsibilities.”

Can states not do this without running the risk of exposing our Constitution to special interests, lobbyists, and designing politicians?

To begin with, rather than expose the Constitution to the whims of special interest groups, political action committees, corporations, and the politicians they pay for, why not enforce the Constitution as written?

Do those sentiments not strike a chord with those of us who are continually bemoaning the expansion of the Federal Register with remarks like “Why don’t they just enforce the laws already on the books?”

Then Wolverton goes on to give concrete examples of the extra-Constitutional realities we somehow put up with these days:

For example, there is not a single syllable in the Constitution providing for foreign aid ($74 billion spent from 2010-2011), undeclared wars in Afghanistan and Iraq (nearly $4 trillion spent since 2001), or the 185 federal welfare programs (nearly $2 trillion spent from 2010-2011). In the past decade, based on just those three examples alone, Congress has authorized the spending of over $6 trillion for unconstitutional purposes!

Now whether you agree with the necessity for  or  the amounts expended on those items, you have to agree that, particularly in the matter of foreign aid, those syllables do not appear in the Constitution. Neither does “health” and neither does “education”, and so much more. So what we are talking about is basic, literal constitutional precepts of enumerated, delegated and reserved powers. Should be child’s play, but of course children have been playing with the Constitution for 226 years, which is why we’re in the mess we’re in.

{At this point, we would like to interject one phrase for you to remember: “Marbury v. Madison.”}

Now, as to a possible impetus for the Mt. Vernon Assembly called for by Indiana State Senator David Long, et al, the attorney, author and talk show host Mark Levin authored a list of proposed amendments called the “Liberty Amendments.” They are summarized here from the Free Republic.  That is a summary, so the exact verbiage may not be straight from Levin’s pen, but what should jump out at you is that there is a lot of it – verbiage, that is.  What part of conservatism is it that you don’t understand, Mark?  Just kidding. But if we examine not only the number but the details of all the proposed Amendments we begin to feel a little bit of sympathy for Mr. Obama’s position in response to the IRS, NSA, Benghazi  and other scandals, which was that the federal government had grown so large and cumbersome that he couldn’t micromanage it.  Just kidding about the sympathy, too.

Of course, Levin is a lawyer and needs the work, so maybe there’s that angle.  But our point in all this is that the reason, the very simple reason that the federal government is such a Leviathan and is such a mess, is that nobody has put a stop to it.  That is, somebody whose job it was  to keep the national government from expanding beyond it’s enumerated powers failed to do so.   And writing new contracts with the American people into the constitution will not stop one iota of government expansion if they are not enforced.  So whose job is it to do that?  It is most simply and obviously the United States Supreme Court, via the precedent established in Marbury v. Madison, which established that the High Court is charged with reviewing, upon application by litigants with standing, the constitutionality of laws and official acts falling under the broad purview of the Constitution itself, at all levels of government, as intended by the specifications of enumerated, delegated and reserved powers.

In short, how can we blame the Democrats, how can we blame the RINO’s, how can we blame the Communists, or the Environmentalists or any other “ists” for our predicament and not blame the Court?  Sure, it has been debated forever that the responsibility rests solely upon the Court, but most scholars and commentators agree that the reality is the Court has the final say.

So returning to Levin, beings he’s all things lawyerly and constitutionally, does he address the issue of the Supreme Court?  He does and here’s what he says about it:  Term limits and let’s have three-fifths of the states be able to override court decisions.   Two problems with that – One, while we loathe the idea of a crusty old liberal being on the bench to torment us for life, we also abhor the interjection of partisan politics into the judiciary.  If Republican or Democrat majorities have more frequent opportunities to put their guys up there on the bench, won’t partisan politics play a bigger role?  And two, the checks and balances called for in our founding arrangements as exemplified by the three branches of government meant that the federal branches were to check each other.  Even if the States created the Federal Government, and can ultimately uncreate  it, and even if the people themselves are ultimately Sovereign, the Veto power and the appointments procedures and oversight functions  and deliberations on truly national issues   are constitutionally the federal government’s bailiwick…  Either Marbury v. Madison means something, or it doesn’t.  Legislatures cannot overturn court decisions, even in their own states.  They can nullify them, marginalize them, skirt them, avoid them.  But to give them blanket veto power over court decisions is not federalism, nor is it our precious separation of powers doctrine.  It is a new hybrid with probable unintended consequences.

If the Federal Government is just too complex and burdensome then, if it is out of control, if it has exceeded it’s constitutional mandates and prerogatives and the Supreme Court can’t recognize it’s duty to rein it in , why is that?  Well, maybe they could plead the famous Obama defense.  The federal judiciary is just too big and complex for them to manage while at the same time keeping tabs on the other two branches.  This is a concise description of the Federal Judiciary:

Supreme Court 9
Court of Appeals 179
District Courts
(includes territorial courts*)
677
Court of International Trade 9
TOTAL 874

When you realize that there are only 435 sitting members of Congress and there are 874 federal judges, shouldn’t that tell you that something is out of whack? Why are there 677 District Court judges scattered across the United States? (Note the actual number of judges, even on the Supreme Court, is not specified in the Constitution, and while Congress is authorized by Article III to create lower courts, their number and composition is likewise not specified.  )
Well, the 677 district courts are needed throughout the land so that every Tom, Dick and Harry who has a gripe has a convenient, nearby forum for it to be aired in. Yes, we’re not supposed to be a democracy, our representatives are supposed to represent us. But when you talk about a Presidential administration doing an end-around on Congress, there is also that Big Judiciary component out there doing end-arounds virtually every day.   Did the Founders envision that development?  99 times out of a hundred, it’s not the Supreme Court thwarting the people’s representatives.  It’s that federal judge down the street.

So Mark Levin’s solution to Big Government is to codify, via Amendment, the nitty gritty details of budgetary arrangements in the United States scheme of things, down to “Congress shall submit preliminary budget to president by first Monday in May for the next fiscal year. Should congress/president not adopt a budget by October 1st, the budget shall be set at 5% less than the last year’s budget. Outlays no greater than receipts and no greater than 17.5% of previous year’s GDP. Congress may suspend the 17.5% limit for one year on a roll call vote of 3/5 of members. National debt to require 3/5 roll call vote. Maximum limit of 15% income tax. Deadline for filing tax returns shall be the day before elections to federal office. Ban on tax of decedent’s estate.”  

Good grief. 5%, 15%, 17.5%? Is it all about the money? Any citizen anywhere in the US have a problem with any of that?  Well, fortunately, with 677 District court judges at your disposal, there’s an app in Gargantua for that.  And when they haven’t agreed on a budget and war breaks out and the budget is automatically reduced by 5%.?  Should we think this through or not?

Mark Levin says not one word about the vast federal judicial behemoth living and breathing among us.   He just wants to add more whereases and wherefores for the Supremes to consider.  Granted, he has some great ideas about how government ought to behave, but the fact remains, as Mr. Wolverton pointed out above, government is commanded to behave itself under the current arrangement.

Does anyone see the terrible irony here?  Expanding the Constitution, inserting more clauses, is no more a guarantee of Liberty than is expanding the Department of Labor.  Limited government means limited government, and come to think of it, not only does Levin not call for slashing the Federal Judiciary, which might free up the Supreme Court to concentrate on less mundane matters than private citizens molesting snail darters or desert lizards, he doesn’t even call for the abolition of the Department of Education.  Oh, he probably does in some of his other treatises or radio broadcasts, but in these proposed amendments he only pleads that Leviathan should be reauthorized every three years. The point is there are people assembling in Mt. Vernon to perhaps begin the process of some  historic  undertakings, and if they are taking their literal cues from Levin, they might just be digging us a deeper hole than we’re already in.

Yes, the size of the Federal bureaucracy is a hot topic among conservatives, but it’s like the weather.  Everyone just talks about it, but usually in the context of the Executive Branch.  Granted, the bloat and the overreach are severe and freedom-constricting in that branch.  But the notion that stipulating  the details of liberty in item after item after item is a guarantor of Liberty flies in the face of experience.   ‘”Congress shall make no law,” and  “shall not be abridged” and “shall not be infringed” are basic tenets, and yet look what’s happened to those supposed givens.

The various district and appellate courts the length and breadth of the land are little fiefdoms whose sheer proliferation and scope preclude effective oversight by the Supreme Court, or the Congress which created them.   Once in a blue moon advocates for our side of things have a bit of success in shepherding our liberties through that process on up to SCOTUS, but being conservatives, it is against our principles to beg and plead with the judiciary for what are our natural, God given and constitutionally guaranteed rights.  And knowing how the system works, which is once a federal judge has ruled, it takes deep pockets to get it overturned, we have 677 little dictators about the country.  That is not democracy, it is oligarchy  or something.

What we hope then, is that what will come out of the Mt. Vernon Assembly is not a headlong rush toward a three-ring circus somewhere in the name of desperately clutching at the dregs of liberty, but an appreciation of the lay of the land and an appreciation that hacking at a few trees here and there isn’t going to accomplish much.  There must be some wholesale clearing of the forest, because it is inhabited by Statists large and small and they tend to blend in with the details of the arrangement.  If someone wants to argue that limiting the size of government to 17.5% of GDP versus 20% is a guarantor of liberty, they are free to do so, but for our money, doing everything humanly possible to insure that our judiciary operates in the spirit of Marbury v. Madison  on the big stuff and doesn’t busy itself with what happens in every county, classroom and water closet in this big, beautiful, once free country is a better recipe.

Were we to advise citizens what redress of grievance to petition for, it would be to petition Congress to dismantle an obnoxious Federal judiciary and expel meddling federal judges from circuits and districts far and wide.

.

In short, there is indeed an Amendment that needs to be given serious, serious consideration and weight in all these deliberations, and that Amendment is the Tenth.

Crossposted at Grumpy Opinions

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bobmontgomery
Poor. No advanced degrees. Unorganized. Feeble. Disjointed. Random. Past it. .... Intrigued, Interested, Patriotic and Lucky.
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