Mark Levin’s fair-weather federalism

Brion McClanahan Author, The Founding Fathers Guide to the Constitution
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Radio talk-show host Mark Levin’s new book The Liberty Amendments has introduced many Americans to the idea of an Article V Convention. He is not the first to propose this method, but because of his public profile, Levin has moved the issue to the front-burner for many conservatives. God bless him; better late than never. There are potential problems with an Article V convention, but they could probably be hammered out before one took place.

That said, Levin has publically criticized other methods of arresting the unconstitutional actions of the general government, most importantly “nullification,” even going so far as to call its most conspicuous proponents “neoconfederates” and “kooks.” These zombie-like attacks are more akin to something MSNBC or other liberal media outlets would level at ideas they can’t refute. Levin tried to respond in a more civil matter in a recent C-SPAN appearance and on Facebook, but his position has glaring holes, not the least of which is his mischaracterization of what the founding generation meant by “Union” and the proper role of the general government vis-à-vis the states.

The United States are, and have always been, a Union of “Free and Independent States.” Thomas Jefferson emphasized that in the Declaration of Independence; the Continental Congress mandated that all officers in the Continental Army take an oath of allegiance to the “Free, Independent, and Sovereign States”; Article 2 in the Articles of Confederation codified that each State “retains its sovereignty, freedom, and independence”; and Great Britain, in the Treaty of Paris of 1783, recognized the independence of each State individually, not as a conglomeration or a “United State.”

The retort, of course, is that the Constitution altered the nature of the general government by creating a stronger “national” government at the expense of the States. But did it? The Preamble emphasized that the Constitution sought to create a “more perfect Union,” a Union “between the States so ratifying the same,” as Article VII clearly states, thus maintaining the Union of States as under the Articles. Nothing changed. Certainly, the general government was strengthened by the Constitution, but the assertion that the “Supremacy Clause” in Article VI proves that all federal legislation trumps State legislation is pure lunacy. The founding generation said as much when the Constitution was being sold for ratification in 1787 and 1788.

Alexander Hamilton insisted in the New York Ratifying Convention of 1788 that “the laws of Congress are restricted to a certain sphere, and when they depart from that sphere, they are no longer supreme or binding.” James Iredell of North Carolina said in his State Ratifying Convention in 1788 that, “When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” Roger Sherman of Connecticut, whom Thomas Jefferson described as “a man who never said a foolish thing in his life,” wrote in 1787 that “when it [the general government] leaps over [its proper] bounds and interferes with the rights of the State governments they [the States] will be powerful enough to check it.” In other words, the States would invalidate the unconstitutional law.

Pelatiah Webster of Pennsylvania, writing in 1787, said that the Constitution “leaves all the Thirteen States complete republics, as it found them, but all confederated under the direction and controul of a federal head, for certain national purposes only, i.e. it leaves all the dignities, authorities, and internal police of each State in free, full, and perfect condition … These powers of controul by the federal head or authority, are defined in the new constitution, as minutely as may be, in their principle.” Charles Pinckney of South Carolina said in 1788 that the “general government has no powers but what are expressly delegated to it,” and Henry Lee of Virginia opined that, “When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed: Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.”

As for limitations on the general government, Tench Coxe of Pennsylvania summarized them nicely in 1788: “[The general government] cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns, or boroughs; creating new state offices, building light houses, public wharves, county gaols [jails], markets, or other public building … nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil, or ecclesiastical.”

These statements were made by men who supported the Constitution, not “radical” opponents of the document or “neoconfederates” bent on destruction of the Union. And of course the Tenth Amendment was added to the Bill of Rights as a final check on the power of the general government. Only the delegated powers granted in Article I, Section 8 were valid. All others were non-binding and unconstitutional.

Any honest American would agree that the general government passes and enforces unconstitutional legislation on a daily basis. The belief in checking the problem through elections is the definition of insanity. The Supreme Court validated Obamacare. An Article V convention would take time, and even if Levin’s “Liberty Amendments” were ratified, why would the general government obey those amendments when they disregard the Constitution now? They only recourse Americans have is through State action. The States are the building blocks of the general government and the last hedge of liberty. The founding generation would agree. As Alexander Hamilton said in 1788, “The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.”