Mark Levin is wrong: A lawless gov't, not the Constitution, needs nullified

Mark Levin is wrong in supporting an Article V constitutional convention of the states.
Photo: Mark Levin/ wikipedia

NASHVILLE, December 27, 2013  — Mark Levin has one of the top-rated syndicated talk radio shows in the country. No one can deny that the lawyer and New York Times bestselling author commands major clout in conservative politics.

However, should this clout serve as a warrant for millions of Americans to blindly follow him?

In his latest book, titled “The Liberty Amendments: Restoring the American Republic,” Levin seeks to provide a path for Americans who wish to fight back against an unchecked federal government.

Levin proposes an Article V constitutional convention of the states as salvation. Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution.

Constitutional Convention Lacks Sound Judgment

Before going down the rabbit hole, it is important to understand that calling for a convention to amend the Constitution with amendments shows absence in sound judgment.

Think about it. The NSA, NDAA, ObamaCare, Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc. are all unconstitutional. These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments.

Did the federal government come to a grinding halt simply because of those amendments? Since Marbury v. Madison in 1803, the American government has been run lawlessly. Some call the Constitution ineffective.

Americans must ask themselves: Is the Constitution ineffective, or do we have a lawless, disobedient federal government? If the answer is the latter, which it is, then Americans should see little refuge in additional amendments, which the lawless, disobedient feds will simply continue to ignore.

Levin Wrong on Nullification

Two emerging fronts seen as remedy to unconstitutional federal usurpation of power have arrived at the forefront of American politics. On one end is Levin’s constitutional convention, and on the other end is nullification.

Levin repudiates nullification and calls it unconstitutional. Levin even attempts to use James Madison’s “Notes on Nullification” to say that Madison himself repudiated nullification.

It is important to know that this is not truthful. What Levin refers to as Madison’s repudiation of nullification is actually Madison rebuking the 1832 South Carolina Ordinance of Nullification. Levin takes Madison’s words out of historical context to support his argument that Madison completely rejected nullification.

Madison was in fact rejecting South Carolina’s quasi nullification of constitutionally warranted tariffs. Vice President Calhoun and the South Carolina delegates’ Ordinance of Nullification was not nullification at all, but something the group had concocted out of thin air. This is what Madison rebuked, not general nullification. Somehow, Levin fails to mention this historical context.

In fact, Madison, the “Father of the Constitution,” lays forth the plan to nullify unconstitutional federal acts. In Federalist #46, Madison speaks of “powerful means” to oppose an unconstitutional federal government. These powerful means include nullification.

Although Levin uses Madison to support his argument for an Article V convention, Madison himself never once made mention of using such a tactic for resisting tyrannical government. On the other hand, Madison does indeed call for nullification, as did Jefferson.

“Where powers are assumed which have not been delegated, a nullification of the Act is the rightful remedy.” - Thomas Jefferson

Bullet to the Constitution

In his book, Levin misinterprets Article V to support his argument that states can control a constitutional convention. Levin says that Article V authorizes his “state convention process.” It does not. Article V only allows states to apply for Congress to call for a convention. Only Congress can call a convention, not the states.

Because Congress calls the convention, it is Congress that appoints the delegates, not the states. Article V does allow states to call one convention, but this convention is limited within state borders to reject or ratify amendments that Congress proposed.

Who would Congress send? This is the worrisome question. Congress is now controlled almost exclusively by lobbyists. States essentially lost all control over the federal government with the implementation of the Seventeenth Amendment. Hardly a federal delegate in Congress feels the need to report to their respective state legislators. The risk for a runaway convention, by which our current Constitution could be completely shredded, is of paramount concern.

Levin is pushing for state legislators to take the charge in this quasi-convention process. Meanwhile, he disregards the fact that the Constitution delegates these state legislators no power to do so.

Levin himself cannot follow the current Constitution, but somehow validates proposing amendments, which the lawless federal creature will (theoretically) suddenly feel obligated to follow. This is an oxymoron.

If Levin is so hell-bent on states controlling the process, why doesn’t he embrace nullification, or as Jefferson referred to it, “the rightful remedy”?

The Rightful Remedy

The Supreme Court of the United States (SCOTUS) was charged with keeping the federal government in check. However, SCOTUS began to extend its own powers in 1803 when it gave itself the power of judicial review in Marbury v. Madison. So began the history of a constitutionally limited federal government deciding for itself the limits of its own power. As a result, today we have a lawless, all powerful federal government.

Jefferson and Madison envisioned this possibility and wrote that the Court was not the final arbiter of law, but the people themselves within their respective states. After all, how could a Court redefining its own limits ever remain constrained?

Jefferson wrote in the Kentucky Resolutions how to handle such federal usurpations of power:

“… Where powers are assumed which have not been delegated, a nullification of the Act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits…” (emphasis added).

Madison confirmed Jeffersonian nullification in his Report of 1800 and Notes on Nullification.

The powers delegated to Congress are few and defined. The Tenth Amendment provides explicit validation for nullification, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (emphasis added).

In regards to nullification, does the Constitution delegate this power to the federal government? It obviously does not. Does the Constitution explicitly prohibit nullification? It does not. It can now easily be concluded that nullification is a power reserved for the people of their respective states.

The Ninth Amendment expounds even further the right to nullification. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Jefferson explained that nullification was a natural right belonging to the people and their respective states. Because the Constitution does not expressly prohibit nullification, the federal government cannot deny or disparage this natural right of the people.

Levin is perhaps the most appreciated and admired political talk show host in America. Rightfully so, he has earned his accolades. However, with such clout comes an incredible responsibility to not only seek truth, but to display the humility and courage to admit when you are wrong.

“Whenever the General Government assumes undelegated powers, its Acts are unauthoritative, void and of no force.” - Thomas Jefferson.

-To learn more about nullification, one may visit the Tenth Amendment Center


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Michael Lotfi

Michael Lotfi, political analyst and adviser, is a first generation Persian-American. Lotfi's father, a man who sought refuge in America during the Islamic Revolution of Iran, met a Southern belle in the Deep South woods of Savannah, and the two joined lives.

Together, they raised a son who grew to share his father's dream for religious, economic and civil liberty.

Lotfi graduated in the top 5% of his class with honors from Belmont University, an award-winning private university in Nashville, Tennessee, where Lotfi currently lives and is the state associate director of the Tenth Amendment Center.

 

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