The Liberty Amendments: Restoring the American Republic

by Mark R. Levin

  In addition, the Articles of Confederation, the first governing document the nascent republic adopted shortly after declaring its independence, also included a restriction on service in the Congress, the unicameral governing body made up of delegates from the thirteen states. Article V of the Articles stated that “no person shall be capable of being a delegate for more than three years in any term of six years. . . . ”7

  The prevailing concern at the outset of the Constitutional Convention was that the new central government possess sufficient authority to overcome the weaknesses of the Articles of Confederation, but not denude the states of their independent and exclusive authority to administer a broad array of governmental functions. Hence, more attention was focused on devising the “checks and balances” within the federal government and securing state sovereignty through federalism to prevent abuse.

  In the Constitutional Convention, on June 2, only days after it convened, Franklin offered his opinion about the question of paying legislators and executive officers of the federal government. He opposed the idea. But his speech is relevant respecting the effect of power on public officials, which can be read today as a prescient and compelling warning about human behavior.

  Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of honour that shall be at the same time a place of profit, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British Government so tempestuous. The struggles for them are the true sources of all of those factions which are perpetually dividing the Nation, distracting its Councils, hurrying sometimes into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace.

  And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate; the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your Government and be your rulers—And these too will be mistaken in the expected happiness of their situation: For their vanquished competitors of the same spirit, and from the same motives will perpetually be endeavouring to distress their administration, thwart their measures, and render them odious to the people.

  Franklin continued:

  Besides these evils, Sir, tho’ we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. Reasons will never be wanting for proposed augmentations. And there will all always be a party for giving more to the rulers, that the rulers may be able in return to give more to them.—Hence as all history informs us, there has been in every State & Kingdom a constant warfare between the governing and the governed: the one striving to obtain more for its support, and the other to pay less. And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the Princes, or enslaving the people. Generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. The more the people are discontented with the oppression of taxes; the greater the need the prince has of money to distribute among his partisans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. There is scarce a king in a hundred who would not, if he could, follow the example of the Pharaoh, get first all the people’s money, then all their lands, and then make them and their children servants for ever. It will be said, that we don’t propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. I am apprehensive therefore, perhaps too apprehensive, that the Government of these States, may in future times, end in a Monarchy. But this Catastrophe I think may be long delayed, if in our proposed System we do not sow the seeds of contention, faction & tumult, by making our posts of honor, places of profit. . . .8

  What Franklin was trying to do was use two of the forces that animate individuals to action, ambition and avarice, to make federal office unattractive to people who are motivated solely or primarily by those character traits. In essence, he was arguing for a de facto term limit on government service by making the act of service a genuine sacrifice for an incumbent. And that was, and is more so today, a valid objective.

  In fact, as Professor Petracca recounts, there was a tradition of rotation that grew during the American Revolutionary period. “[T]he expectation or requirement that elected officials would soon ‘return’ to ‘private life’ or ‘private station’ was contained in the bills of rights accompanying six of the new state constitutions adopted from 1776 to 1780. The Virginia Bill of Rights . . . provided that members of the legislature and executive ‘may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to private station’ (1776, section 5). Similar provisions appeared in the bills of rights accompanying the constitutions of Pennsylvania (1776, articles 19 and 11); Delaware (1776, article 4); New York (1777, article 11); South Carolina (1778, article 9); and Massachusetts (1780, article 8).”9

  Thomas Jefferson was a longtime proponent of rotation. In a reply letter to James Madison, commenting on the proposed Constitution, he wrote in December 1787, in part, that “I dislike, and strongly dislike . . . the abandonment, in every instance, of the principle of rotation in office, and most particularly in the case of the President. . . . ”10 In February 1800, Jefferson explained to Samuel Adams that “[a] government by representees, elected by the people at short periods, was our object, and our maxim at that day was, ‘Where annual election ends, tyranny begins’; nor have our departures from it been sanctioned by the happiness of their effects. . . . ”11

  Numerous delegates to the Constitutional Convention supported rotation in office. And they debated terms of office for each of the newly created public offices. But, as Jefferson pointed out in his letter to Madison, he was concerned that there was no provision in the draft Constitution for mandatory rotation or term limits. However, it would be erroneous to conclude from its absence that the matter of term limits was considered and rejected. The concept of representation at the time was not one of “professional” or lifetime “public service” but citizen participation and part-time service. Moreover, the relatively short terms established for members of the House and the president, and even the six-year term for senators elected by the state legislatures, was thought to ensure a regular and steady turnover of officeholders. And life expectancy was much shorter than today.

  As Petracca explains, “throughout most of the nineteenth century, not very many members of Congress sought reelection. Not until 1901 . . . did the average number of terms served by House members prior to the present session rise above two terms. There were few occasions in which the average length of service approached two terms, but no more than a handful out of some 56 sessions. . . . During the 25 elections between 1850 and 1898 . . . turnover averaged 50.2 percent. On average, more than half the House during any given session in the second half of the nineteenth century was made up of first term members.”12

  George Washington’s approach to the presidency reflected the mind-set of the period. While there was no constitutional stricture at the time on how many terms a president may serve, Washington set the precedent that reflected both the public’s general perception of how long a president should serve—two four-year terms—and how long the body pol
itic would consider someone electable.

  This perspective, respecting presidential power in particular, operated for almost a century and a half, until Franklin Roosevelt ran for and won a third term in 1940. He went on to win a fourth term in 1944, but served only a few months of that term before he died in office on April 12, 1945.

  Shortly after World War II, when the Republican Party captured control of both houses of Congress, there was strong sentiment that President Washington’s precedent of serving only two terms should be codified in order to prevent future presidents from holding power too long. This led to the Twenty-Second Amendment to the Constitution, which was ratified on February 27, 1951.13 It limits a president to two terms or, in the case of a vice president who has assumed the office because of the death, resignation, impeachment conviction, or disability of a predecessor, two terms and the predecessor’s term, if the term is more than half over.14 A vice president may serve only one term and the remainder of the previous incumbent’s term, if that term is less than half completed.15 Although limiting a president’s term of service, Congress did not address the longevity of its own members.

  There are really only two ways to curb prolonged incumbency: 1) limit who is eligible to seek and hold a position of power; and/or 2) establish explicit, definitive mechanisms in the operation of government that constrain the power of the officeholder. The Framers attempted to control the purview of the federal government through a carefully balanced retinue of checks on each branch of the federal government’s power. These divisions of enumerated authority between the branches meant that no one part of government could dominate the others or subsume the states’ power. In this way, the civil society and individual sovereignty could be preserved. The blueprint for this system, the Constitution, was the greatest mechanism for human governance ever created.

  The problem today, however, is that we have had a century or more of elected officials who have incrementally dismantled the Constitution’s structure, leaving us—as I wrote in Ameritopia—in a post-constitutional period. The evidence abounds, and is described at length throughout this book. The nation’s Founders believed in the concept of a “citizen/servant”—someone who had a life and a career in the private sector, but who offered his experience and talents to public service for a limited time, and then returned to private life. In many cases, government officials, even representatives and senators, actually kept active in their private sector vocation during their tenure in public office, dividing time between the two areas of life. The size of the national government, as well as its reach, was kept small and intentionally curtailed. Moreover, the notion of a career in elective office, in the context of a constitutional republic, was both foreign and incongruous.

  An excellent example of the mind-set of the Founders toward government service was the manner of compensation established for our national elected officials. President Washington’s salary was $25,000 per year, plus expenses—a generous but not lavish sum in 1789.16 There was, however, some debate about a fair wage for his vice president, John Adams. Some in Congress wanted to pay him on a per diem basis, for each day he actually worked at being a heartbeat away from the presidency. After some debate, Congress provided Adams with an annual salary of $5,000.17

  The First Congress was a bit more penurious with its own compensation. Senators and representatives were given six dollars for each day Congress was actually in session. And up until the beginning of the twentieth century, Congress was seldom in session more than an average of about four months per year. In fact, between the beginning of the First Congress in 1789 and 1855, members of Congress were paid the same six-dollars-per-diem salary—except for 1815–17, when Congress voted itself a $1,500 annual paycheck. After 1855, members were paid $3,000 per year.18

  The citizenry’s basic antipathy against marshaling power in a single individual’s hands was also reflected in their choices for president. From 1836 to 1868, only one candidate was elected to the presidency more than once—Abraham Lincoln.

  Not surprisingly, the timeline for congressional tenure burgeoned concurrently with the rise of the Progressive movement in the United States. As the Progressives grew in influence in state and federal governments, the federal government—by necessity, from the Progressives’ perspective—grew more dominant and intrusive. A top-down centralized government was required to pursue utopian objectives of economic, social, and cultural egalitarianism and reformation. Thus, the adoption of the Sixteenth Amendment and the federal income tax and the repeal of the Seventeenth Amendment and state representation in the Senate, among other things, contributed to the unleashing of infinite and unfinished acts of centralized government. The very nature of representative government under the Constitution, with its structural limits on federal governmental action and respect for individual sovereignty and local community interests denoted in the Ninth and Tenth Amendments, was altered fundamentally. Today it reveals itself in relentless social engineering and lifestyle calibrations.

  Consequently, citizen legislators, rotating back to their communities after a short period of public service—considered an indispensable and routine characteristic and design of representative government at the time of the founding, and for a century thereafter—have been replaced with a professional ruling class led by governing masterminds. For the most part, they are isolated from the communities from which they hail and are consumed with the daily jockeying for position and power within their ranks. Moreover, they both pander to and lord over their constituents.

  • • •

  This proposed amendment limits the length of time an individual can serve in Congress to up to a total of twelve years, whether such service is exclusively in one House or combined in both Houses. Beyond that, an incumbent is ineligible to run again. Although imperative to reestablishing the American Republic, this amendment is not extraordinary. Voters are used to the impact of the Twenty-Second Amendment on presidential elections, and thirty-six of the fifty states have some form of term limits for their governors.19 Some states have limits on the number of terms a governor may serve throughout his life, while others have limits on serving consecutive terms. For example, Virginia prohibits reelection after a single gubernatorial term.20 Only one state, Utah, has no term limits since the legislature repealed the state’s term limits statutes.21 In addition, fifteen states have term limits for state legislators.22 There are also term limits on members of several municipal, county, and town governing bodies.

  Benjamin Franklin put term limits in the proper context. On July 26, 1787, at the Constitutional Convention, he said: “It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought was contrary to republican principles. In free Governments the rulers are the servants and the people their superiors & sovereigns. For the former therefore to return among the latter was not to degrade but to promote them. And it would be imposing an unreasonable burden on them, to keep them always in a State of servitude, and not allow them to become again one of the Masters.”23

  The consent of the governed is the hallmark of a constitutional republic. Yet it seems the American people have lost faith in Congress as an institution. Congress, which is supposed to reflect the will of the people better than the other branches of the federal government, is consistently rated very poorly by the citizenry. The level of public disenchantment is significant. Congress’s approval averaged 14 percent for the first part of 2013, 15 percent in 2012, 17 percent in 2011, and 19 percent in 2010.24 The longevity of incumbency has created a class of professional politicians who operate at an increasing distance from their constituents. Term limits, and the more frequent rotation of individuals in and out of Congress, provide a remedy consistent with the Framers’ intent and approach to representative government.

  CHAPTER THREE

  * * *

  AN AMENDMENT TO RESTORE THE SENATE

  SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be
chosen by their state legislatures as prescribed by Article I.

  SECTION 2: This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.

  SECTION 3: When vacancies occur in the representation of any State in the Senate for more than ninety days the governor of the State shall appoint an individual to fill the vacancy for the remainder of the term.

  SECTION 4: A Senator may be removed from office by a two-thirds vote of the state legislature.

  AN AMENDMENT TO THE U.S. Constitution that was sold as a cleansing and transformative expansion of popular democracy is actually an object lesson in the malignancy of the Progressive mind-set and its destructive impact on the way we practice self-government in a twenty-first-century, post-constitutional nation.

  The amendment in question is the Seventeenth, ratified April 8, 1913. Its language is deceptively uncomplicated:

  The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

  When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.