It's not your Founding Fathers' republic anymore

To prevent a perpetual caste of rulers, these writers want a term-limit amendment for congressmen, senators, and even (says Levin) for Supreme Court justices, whose rulings in the meantime he’d let a three-fifths majority of both houses of Congress overturn. As another way to stop courts from being a tool of oppression, harassment, and delay, Howard would like an amendment forbidding lawsuits without a judge’s prior determination of their reasonableness. To stop the governmental orgy of taxing and spending, these authors favor a federal balanced-budget amendment, a line-item veto for the president, and perhaps even a constitutional upper limit on the allowable income-tax rate. To get control of the unelected, unaccountable bureaucracy, they recommend restoring the president’s authority to hold apparatchiks to account by firing them—or else face the ire of the voters whom he hasn’t protected from their insolent and often unconstitutional meddling.

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To restore federalism and keep the federal government from usurping powers reserved to the states and the people, Freedman and Levin want to return to election of senators by state legislatures—ensuring, they believe, that the senate would safeguard state interests. I can’t help recalling those Gilded Age senators who bought their offices from venal state legislators, but perhaps, given the Founders’ views of human motivation, such senators would nevertheless serve the original purpose of protecting property against the tyranny of the majority. Levin would like to reinforce such protection by amendments explicitly underscoring what Article I’s Commerce Clause and the Takings Clause of the Fifth Amendment already say—a sad commentary on how thoroughly the Living Constitution has murdered the Founders’ Constitution.

You have to define a problem before you can solve it. We owe each of these four authors a debt for starting a conversation that could forestall a crisis of legitimacy.

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