Some years ago, author, lawyer and radio talk show host Mark Levin wrote a book titled The Liberty Amendments. His idea was for a new set of ten amendments to the Constitution with the goal of enhancing liberty. While his arguments are compelling and correct, some of his amendments could eventually make matters worse. Some of his amendment ideas treat symptoms rather than underlying causes of the problems with the US constitutional framework.
For this reason, the Freedom Amendments are being proposed. These amendments set about to make the change necessary to stop the problems which create the symptoms Mark Levin's amendments attempt to treat. In doing so, these amendments alter the constitutional order from a presidential system of governance to that of a parliamentary system of government. But why a parliamentary system after over two centuries of a presidential system?
The answer lies in what has become of the office of the President. In essence, it has become what Arthur Schlesinger, Jr called The Imperial Presidency. According to Professor of political science Thomas E. Cronin, author of The State of the Presidency, the Imperial Presidency is a term used to define a danger to the American constitutional system by allowing the Presidency to create and abuse presidential prerogative during national emergencies. Its prerogative was based on: presidential war powers vaguely defined in the constitution, and secrecy - a system used that shields the Presidency from the usual checks and balances afforded by the legislative and judicial branches.
Ultimately, a parliamentary form of government restores the correct balance between the executive and the legislature by giving the legislature the necessary oversight of the executive to restrain its imperial tendencies and deprive it of the power that a popular mandate, gained through elections, gives to the executive.
The selection of judges has become extremely politicized. This is due to the fact that both the President who nominates judges and the Senate that confirms those nominations have become extremely political offices due to the direct election of senators and the presidency being very close to being chosen by a national popular vote. Therefore, the benefit of restoring the Senate to being selected as originally designed by the Founders goes further than just to rebalance the state-federal relationship. It helps to depoliticize the judicial selection process. The President, now twice removed from voters, no longer possesses the powers of head of government but is much less a political figure who can make judicial nominations, free from political pressure and consideration. Together these will go a long way toward making the judiciary even more independent, less political and will legitimize the decisions of courts in the minds of the public.
The growth of the power of the executive is only part of the problem with the US government. Congress has found and the Constitution has prevented numerous usurpations of powers not specifically enumerated in the Constitution. For this reason, many of these amendments restrict the ability of Congress to exercise power not enumerated by the Constitution.
The most effective tools for limiting Congress to the restriction of their enumerated powers are a constitutional court, the states and limits to the "Spending Clause". The constitutional court would involve a panel of judges whose sole job is to review every piece of legislation to insure it is in full compliance with the Constitution. At the same time, a supermajority of the states would have limited powers to nullify laws they deem unconstitutional.
Limiting government spending to its constitutionally enumerated powers should never even be a question which needs to come up. Yet the issue has risen its head since the days of the Founding and debates between Hamiltonians and Jeffersonians. That debate continues to this day and needs to be addressed by the Constitution rather than judicial interpretation.
Along with the limited power to nullify laws, the repeal of the 17th Amendment would help to restore the proper balance between the states and the national government which has, over time, rendered the states to a level of subservience to the national government. That was never the intent of the federal system the Founders created. The states were always deemed by the Founders to be checks on the power of the national government. But today they are little more than political subdivisions.
There are also provisions to bring about fiscal sanity through three mechanisms. First, the spending power of Congress is limited to only enumerated powers and the open ended phrase "common good" is eliminated. Second, the ability to borrow money is also severely limited. Third, the 16th Amendment authorizing the income tax is repealed.
There is a restriction on the power of Congress to make war. As discussed, the war making powers of the presidency have enabled the usurpation of power that creates the Imperial Presidency. This creates a necessity to restrict that ability while at the same time, allowing the necessary authority to defend against attack. To achieve this, there is a requirement for a supermajority and there is a time limit for any declaration of war. Also, Congress is prohibited from enacting anything other than a declaration of war for the use of aggressive military force.
Finally, there is an interpretative amendment for future courts. Rather than allow future courts to use their individual means of interpreting the Constitution, there is an amendment which defines how the Constitution is to be interpreted.
Freedom Amendments
I. Every law, or resolution having the force of law, shall
relate to but one subject, and that shall be expressed in the title.
II. The
Congress shall have power to lay and collect taxes, duties, imposts and excises
to pay the debts and general operation of the government and provide for the
common defense of the United States, provided two-thirds of each house of
Congress approves, and two-thirds of each House of Congress approves any bill
for increasing revenue, and the spending authority of Congress shall be limited
to specific enumerated powers in this Constitution. No duties or taxes on
importations from foreign nations shall be laid to promote or foster any branch
of industry; and all duties, imposts, and excises shall be uniform throughout
the United States.
III. The
Congress shall have power to borrow money on the credit of the United States
provided two-thirds of each House of Congress approves.
IV. Congress
shall have no authority to make any law to regulate the interstate commerce of the
people of the United States or law impairing the obligation of contracts or to
mandate actions by any individual including those in furtherance of any
economic or commercial policy; to abridge the freedom of production, commerce
and the voluntary and free exchange of goods and services or to create, or
engage in, any business, professional, commercial, financial or industrial
enterprise.
V. The
Congress shall have power to declare war, provided two-thirds of each House of
Congress approves, and every declaration of war shall expire one year
thereafter unless two-thirds of each House of Congress shall authorize an
additional year, each year thereafter. Congress shall have no power to
authorize any use of military force by any bill, order, resolution or vote other
than a declaration of war, unless actually invaded, or in such imminent danger
as will not admit of delay.
VI. The
Head of State
A. The
President of the United States shall be the head of state of the United States.
He shall hold his office during one term of ten years.
B. The
President shall be elected, as follows:
1. The
Legislature of each state shall appoint a number of electors, equal to the
whole number of Senators and Representatives to which the state may be entitled
in the Congress: but no Senator or Representative, or person holding an office
of trust or profit under the United States, shall be appointed an elector.
2. The
electors shall meet in their respective states and vote by ballot for
President; they shall name in their ballots the person voted for as President
and they shall make distinct lists of all persons voted for as President, and
of the number of votes for each, which lists they shall sign and certify, and
transmit sealed to the seat of the government of the United States, directed to
the President of the Senate. The President of the Senate shall, in the presence
of the Senate and House of Representatives, open all the certificates and the
votes shall then be counted. The person having the greatest number of votes for
President, shall be the President, if such number be a majority of the whole
number of electors appointed; and if no person have such majority, then from
the persons having the highest numbers not exceeding three on the list of those
voted for as President, the House of Representatives shall choose immediately,
by ballot, the President. But in choosing the President, the votes shall be
taken by states, the representation from each state having one vote; a quorum
for this purpose shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a choice.
3. The
Congress may determine the time of choosing the electors, and the day on which
they shall give their votes; which day shall be the same throughout the United
States.
4. No
person except a natural born citizen shall be eligible to the office of
President; neither shall any person be eligible to that office who shall not
have attained to the age of thirty-five years, and been fourteen years a
resident within the United States.
5. The
President shall not be a member of Congress or of the legislature of any state
nor shall the President hold any other office of profit or trust of the United
States or any of the several states for a period of five years before his
election.
C. The
President shall, at stated times, receive for his services, a compensation,
which shall neither be increased nor diminished during the period for which he
shall have been elected, and he shall not receive within that period any other
emolument from the United States, or any of them.
D. Before
he enter on the execution of his office, he shall take the following oath or
affirmation: "I do solemnly swear
(or affirm) that I will faithfully execute the office of President of the
United States, and will to the best of my ability, preserve, protect and defend
the Constitution of the United States."
E. Duties
of the President of the United States
1. The
President shall designate the principal officer who shall execute the laws of
the United States and appoint the other principal officers of the executive
departments on the basis of the vote of confidence of the House of
Representatives with the exception of the officer charged with the
administration of justice.
2. The
President shall have power to grant reprieves, commutations, exonerations and
pardons for offenses against the United States, except in cases of impeachment.
3. The
President shall nominate, and by and with the advice and consent of the Senate,
shall appoint judges of the Supreme and inferior Courts and councilors of the
Constitutional Council.
4. The
President shall be commander in chief of the defense forces of the United
States, and of the organized militia of the several states, when called into
the actual service of the United States. The command of the defense forces of
the United States shall be exercised by the head of government.
5. The
President may, on extraordinary occasions, convene both Houses, or either of
them, and in case of disagreement between them, with respect to the time of
adjournment, he may adjourn them to such time as he shall think proper.
6. The
President shall receive ambassadors and other public ministers and heads of
state.
7. The
President shall commission all the officers of the United States.
8. The
President shall recognize individuals or groups for extraordinary achievement
and acts of bravery and heroism.
F. The
President and all civil officers of the United States shall be removed from
office on impeachment for, and conviction of, treason, bribery, other high
crimes and misdemeanors, or other behavior that renders them unfit for office.
H.
In case of the removal of the President
from office, or of his death, resignation, or inability to discharge the powers
and duties of the said office, the same shall devolve on the President of the
Senate until a new President is chosen.
VII. The
President of the Senate shall be chosen by the executive authorities of the
several states before noon on the third day of January in the years in which a
new class of Senators is chosen but following the election of Representatives.
Within these time limits, voting shall be by ballot and shall continue until
one person shall have attained a majority of the votes. Ballots shall be
tabulated by a judge of the Supreme Court or any inferior court in the presence
of the Senate.
VIII. The
Head of Government
B.
Duties of the head of government
1.
The head of government shall take care
that the laws be faithfully executed.
2.
The head of government shall give to the
Congress information of the state of the union, and recommend to their
consideration such measures as he shall judge necessary and expedient.
3. The head of government shall have power, by and with the advice and consent of the Senate, to make treaties, provided a majority of the House of Representatives and two thirds of the Senators concur.
4.
The head of government shall nominate, and
by and with the advice and consent of the Senate, shall appoint all other officers
of the United States, whose appointments are not herein otherwise provided for,
and which shall be established by law: but the Congress may by law vest the appointment
of such inferior officers, as they think proper, in the Head of Government
alone, in the courts of law, or in the heads of departments.
5.
The head of government may require the
opinion, in writing, of the principal officer in each of the executive
departments, upon any subject relating to the duties of their respective
offices.
C. The
head of government shall remain in office during the pleasure of the House of
Representatives and subject to the limits of all Representatives to remain in
office.
IX. The
several states may nullify any law of the United States, whenever three-fifths
of the legislatures of the several states choose to nullify such law. This must
occur within twelve months of the enactment of the law as defined in Article I.
X. This
Constitution, and the laws of the United States which shall be made in
pursuance thereof; shall adhere to and be interpreted as the organization of
the natural right of lawful defense. It is the substitution of a common force
for individual forces and this common force is to do only what the individual
forces have a natural and lawful right to do: to protect persons, liberties,
and properties; to maintain the right of each.
XI. The
sixteenth article of amendment to the Constitution of the United States is
hereby repealed.
XII. The
Senate of the United States shall be composed of three Senators from each
state, chosen by the legislature thereof, for six years, with a power reserved
to a two-thirds majority of each legislature to recall its Senators, or any of
them; and each State shall have one vote except in trials of impeachment when
each Senator shall have one vote. They shall be divided equally into three
classes, each class composed of one member of each state delegation so that one
third may be chosen every second year.
XIII. Each
state shall have at least three Representatives; and until such enumeration
shall be made, shall be apportioned in accordance with the most recent census. No state shall create a legislative district
with fewer than three Representatives. Representatives shall be chosen in
accordance with the principle of proportional representation.
XIV. Every
bill, order or resolution, declarations of war notwithstanding, which shall
have passed the House of Representatives and the Senate shall be presented to
the Constitutional Council of the United States. The Constitutional Council
shall only determine if the bill is in full compliance with all the articles of
this Constitution and any amendments thereto. If it approves, the
Constitutional Council shall transmit the bill to the President but if not, the
Constitutional Council shall return it, with its objections to that House in
which it shall have originated, who shall enter the objections at large on
their journal, and proceed to reconsider it. No bill shall be presented to the
President of the United States without the approval of the Constitutional
Council of the United States.
Every bill which shall have approval from the
Constitutional Council, shall, before it become a law, be presented to the
President of the United States; if he approves, he shall sign it, but if not,
he shall return it, with his objections to that House in which it shall have
originated, who shall enter the objections at large on their journal, and
proceed to reconsider it. If after such reconsideration a majority of that
House shall agree to pass the bill, it shall be sent, together with the
objections, to the other House, by which it shall likewise be reconsidered, and
if approved by a majority of that House, it shall become a law. But in all such
cases the votes of both Houses shall be determined by yeas and nays, and the
names of the persons voting for and against the bill shall be entered on the
journal of each House respectively. If any bill shall not be returned by the
President within ten days (Sundays excepted) after it shall have been presented
to him, the same shall be a law, in like manner as if he had signed it, unless
the Congress by their adjournment prevent its return, in which case it shall
not be a law.
XV. The
judicial power of the United States, shall be vested in one Supreme Court
consisting of no more than nine judges and in such inferior courts as the
Congress may from time to time ordain and establish. The judges, both of the
supreme and inferior courts, shall hold their offices during good behavior, and
shall, at stated times, receive for their services, a compensation, which shall
not be diminished during their continuance in office.
The
Constitutional Council shall have jurisdiction to determine whether treaties
are in conformity with the Constitution and whether all regulations and
executive actions are in conformity with the laws and Constitution; in such
cases it may declare their annulment.
XVII. Congress shall have no authority to provide
any money to any state or engage with any state to perform any policy, program
or other service.
