Mark Levin's Electoral Kryptonite

Blog ››› ››› ARI RABIN-HAVT

Mark Levin's newly published The Liberty Amendments is electoral kryptonite for the Republican Party, sure to destroy any political figure who advocates its radical ideas.

The book, which offers 11* constitutional amendments, evokes a certain idealism that would be endearing if the consequences to the lives of millions weren't so horrific. Levin's proposals, of course, set the conservative media's heart aflutter.

Rush Limbaugh gave the book a ringing endorsement, saying on his radio program: "The Constitution's bastardized. It's been bastardized for years. It's been shredded for years. It needs to be reaffirmed. And Levin's book is a series of ideas of how to do it that involves the American people."

Levin isn't just another radio host, as Republican National Committee chair Reince Priebus recently said he was receptive to the idea of Levin and Sean Hannity moderating a 2016 Republican presidential primary debate.

In The Liberty Amendments, Levin lays out a conservative dystopian nightmare. Among the most toxic of his ideas would be the redefinition of the Commerce Clause to wipe out nearly all the hard fought protections of the 20th century. By arguing that the federal government's powers under Article 1, Section 8 have been unjustly expanded by the Supreme Court, Levin implicitly acknowledges this debate is over. Instead of accepting this, Levin seeks to alter the clause by limiting the definition of interstate commerce explicitly to "preventing states from impeding commerce and trade between and among the several States."

The results would be disastrous with nearly every legislative achievement since the New Deal wiped out. The Fair Labor Standard Act that established a minimum wage and outlawed child labor would be a thing of the past.

But Mark Levin's proposal to overturn decades of Supreme Court precedent in order to radically redefine the Commerce Clause is not only an assault on the fair labor laws of the New Deal, it would also endanger seminal civil rights laws and national law enforcement authority.

The Civil Rights Act of 1964, for example, prohibited private employment discrimination and service discrimination by hotels and restaurants under the Commerce Clause, a power explicitly upheld by the Supreme Court in rejecting the immediate right-wing challenges to the historic anti-discrimination law's constitutionality.

Federal law enforcement has also relied on the expansive breadth of the Commerce Clause to ensure the FBI can fight interstate crime, as this constitutional authority is at the root of criminal laws from the Federal Kidnapping Act to the Church Arson Prevention Act.

Indeed, conservatives have also exercised these long-standing federal powers, most famously Justice Antonin Scalia who agreed it could be used by the federal government to regulate the at-home cultivation of legal medical marijuana for personal use. 

Another amendment Levin endorsed would result in a corporate welfare gold rush. The conservative radio host proposes that the government, including state and local authorities, should be constitutionally mandated to reimburse entities if a new regulation "results in a market value reduction of the property, interference with the use of the property, or a financial loss to the property owner exceeding $10,000."

This amendment would not just cover federal regulationsCasting aside his defense of states' rights, Levin even applies its scope to local government. He writes, "When an individual's property is diminished or devalued by government action, the individual does not much care which level of government is responsible for violating his property rights."

Under this proposal, if your town passed a referendum preventing a multinational corporation from polluting a local water supply, it would be on the hook for the "economic damage" to the company. If the FDA wanted to block a deadly drug from entering the market, they would be on the hook for the "economic losses" suffered by the company being unable to bring its poison to the market. In Levin's world one would presume after enough bodies piled up the free market would remove the fatal medication from store shelves.

Levin's numerous other amendments, including a reorganized tax system, the elimination of the direct election of Senators, and an enshrinement of disenfranchising voter ID laws into the Constitution are equally unworkable.

While conservative media figures describe The Liberty Amendments as "the cure for what ails" America, Levin is setting up an impossible situation for the Republican Party.

His book is already driving conversation on the right. In the case of a Levin moderated debate one could see Republican presidential candidates being forced to answer whether or not they support his prescriptions.

Is the path to electoral success forcing your candidates to speak out against child labor laws? The minimum wage? Against bans on discrimination? For repealing the direct election of Senators?

Has the conservative media become so deluded they believe this is the key to electoral success? If so they might as well write John Galt on their ballots, because he is as likely to win a national election as any candidate carrying Levin's mantle.

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Mark Levin
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