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Senate of Pennsylvania
Session of 2013 - 2014 Regular Session

MEMORANDUM

Posted: October 18, 2013 03:46 PM
From: Senator Mike Folmer
To: All Senate members
Subject: Liberty Amendments
 
America was founded in Philadelphia, saved at Gettysburg, and ushered into the industrial age through countless communities across our Commonwealth. We would not be the United States without Pennsylvania, the Keystone State.

I believe Pennsylvania again needs to be a leading voice in the future of our nation by calling for amendments to the United States Constitution that will restore balance to our Constitutional Republic, protect individual liberties, and promote personal responsibility – founding principles of our nation.

A number of these amendments have been discussed nationally and some so-called “Liberty Amendments” have been proposed in other states. The Liberty Amendments I am proposing are:
  • Establishing Congressional Term Limits
  • Repealing the 17th Amendment, which provides for the direct election of US Senators
  • Establishing term limits for Supreme Court Justices
  • Limiting federal spending
  • Limiting federal taxing
  • Limiting the federal bureaucracy
  • Promoting free enterprise
  • Protecting Property Rights
  • Granting states authority to directly amend the Constitution
  • Granting states authority to check Congress
  • Protecting the vote
Article V of the US Constitution provides two methods for amendments:
  • Congress proposes an amendment with a two-thirds majority vote of both the House of Representatives and the US Senate, which must then be ratified by three-fourths of the states (38 of 50), OR;
  • Two-thirds of the State legislatures call for a Constitutional Convention to propose amendments that must be ratified by three-fourths of the states (a process never used).
Congressionally approved changes to the Constitution are the only amendments approved to date (27). I believe the time has come to start a discussion on state-initiated Constitution Amendments that will put the states in control of possible future changes.

Below is a more detailed description of each proposed Liberty Amendment.



Document #1

Introduced as SR251

Description: Liberty Amendment #1 – Congressional Term Limits
 
In 2010, 85 percent of Congressional incumbents from both parties were reelected: 397 members of the House ran for reelection and 339 won. The Senate’s reelection rate was 84 percent. Clearly, these are not the “citizen legislators” envisioned by the Founding Fathers.
 
In Federalist #52, James Madison or Alexander Hamilton wrote: “It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited.  With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.”
 
I propose establishing a twelve-year term limit for Members of Congress.
 

Document #2

Introduced as SR252

Description: Liberty Amendment #2 – Repeal of the 17th Amendment
 
Until 1913, with ratification of the 17th Amendment, states’ citizens elected US senators indirectly: voters elected state legislators who in turn selected US senators. Since passage of the 17th Amendment, voters have directly elected US senators in statewide elections.
 
I believe this change has led to a number of problems, including:
  • A vast increase in federal power and a vast decrease in state and local authority because state governments lost their representation in the federal government;
  • Outside forces interfering in states’ Senatorial elections (i.e., out-of-state donations, political operatives, and campaign consultants), and;
  • A decline of the influence of individual voters as each represents only one vote out of thousands or millions of ballot votes cast.
Repeal of the 17th Amendment would help to restore the balance of our federal Constitutional Republic, which as James Madison noted in Federalist #62: “It is equally unnecessary to dilate on the appointment of senators by the State legislatures.  Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”
 
Madison went on to note the Senate was to be an “additional impediment . . . against improper acts of legislation.  No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States [emphasis added].”
 
I propose a Constitutional Amendment to repeal the 17th Amendment.
 

Document #3

Introduced as SR253

Description: Liberty Amendment #3 – Terms Limits for the US Supreme Court
 
In Federalist #78, Alexander Hamilton promised: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”
 
Hamilton and the Founding Fathers could not have envisioned just how annoying or injurious the United States Supreme Court would become. Just consider:
  • Dred Scott V. Sandford: endorsing slavery
  • Plessy v. Ferguson: affirming segregation
  • Korematsu v. United States: upholding the interment of Americans
These illustrations are in addition to more recent examples of Supreme Court decisions that have redefined non-commerce as commerce and declared penalties as taxes.

I propose a Constitutional amendment to fix the unmooring of our Constitutional Republic by:
  • Limiting Supreme Court Justices’ tenure to a single ten-year term of office with no possibility of re-nomination for another term, and; 
  • Subjecting Supreme Court decisions to being overturned by a supermajority of Congress or a supermajority of State Legislatures.
 

Document #4

Introduced as SR254

Description: Liberty Amendment #4 – Limiting Federal Spending
 
Under the Constitution, the federal government was envisioned as operating with defined, specific power. Over time, however, it has become an ever-present and unaccountable monstrosity that now consumes nearly 25 percent of all goods and services produced by the American people. Yearly deficits routinely exceed $1 Trillion.  The fiscal operating debt now exceeds $17 Trillion and is expected to exceed $26 Trillion in decade.
 
The total accumulated unfunded liabilities for federal entitlement programs exceeds $90 Trillion and is growing $4 to nearly $7 Trillion each year. Such spending was never anticipated by the Founding Fathers. As James Madison noted in Federalist #45: “The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”
 
I propose to limit federal taxing and spending by:
  • Enacting a balance budget amendment;
  • Limiting spending to 17.5% of GDP, and;
  • Requiring three-fifths vote to raise the debt ceiling.
 

Document #5

Introduced as SR255

Description: Liberty Amendment #5 – Limiting Federal Taxing
 
Our country was founded on the principle of no taxation without representation – beginning with a stamp and tea tax. Today, we pay a myriad of taxes, including: amusements, capital gains, earned income, estate/inheritance, excise, gas, gross receipts, liquor, sales, per capita, personal income (federal, state, local), property (county, municipal, school), Social Security, telephone taxes and unemployment taxes.
 
Government red tape – zoning, building codes and mandates – result in other fees, including: building permits, dog licenses, driver’s licenses, fishing and hunting licenses, food licenses, marriage licenses, and vehicle and boat registration fees.
 
When the federal income tax was instituted with the 16th Amendment, the top individual income tax rate was 7%. Today, the top rate is about 40%, with proposals to push it to 50% or higher. Governments at all levels have grown faster than the taxpayers’ ability to pay. Meanwhile, the base of taxpayers has continued to shrink.

As Alexander Hamilton noted in Federalist #32, the federal government was not envisioned to be the main taxing authority: “... I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution [emphasis added]."
 
I propose to limit federal taxing to 15% of an individual’s income and placing the deadline to file one’s taxes to one day before the next General Election.
 

Document #6

Introduced as SR256

Description: Liberty Amendment #6 – Limiting the Federal Bureaucracy
 
The federal government regulates almost every aspect of our lives, including: our work rules, our cars, our bathrooms, our laundries, our kitchens, and our children’s toys and education. Much of this regulation is by unelected bureaucrats – sometimes called “czars,” which are nowhere found in the Constitution. This gigantic and ever-growing bureaucracy has so many rules and regulations that people cannot possibly know or understand them.
 
Such broad lawmaking power ceded to the executive branch violates the separation of powers doctrine of our Constitution. As James Madison wrote in Federalist #48: “An elected despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by others.”
 
I propose to limit the powers of the federal bureaucracy by eliminating the:
  • United States Department of Education;
  • United States Department of Energy;
  • Federal Reserve System;
  • Federal Home Loan Mortgage Corporation (Freddie Mac); and
  • Federal National Mortgage Association (Fannie Mae).
 

Document #7

Introduced as SR257

Description: Liberty Amendment #7 – Promote Free Enterprise
 
Winston Churchill said: “Some people regard private enterprise as a predatory tiger to be shot. Others look on it as a cow they can milk. Not enough people see it as a healthy horse, pulling a sturdy wagon.”
 
In a free enterprise system, few restrictions are placed upon business activities and ownership; governments generally have a minimal role in the marketplace. The foundations of free enterprise are limited restrictions on trade and minimal government intervention.
 
America was founded on free enterprise principles as American colonists were restricted from starting or owning their own businesses without government permission. The Declaration of Independence included a number of grievances against the King: “He has refused his Assent to Laws, the most wholesome and necessary for the public good;” “For cutting off our Trade with all parts of the world;” “For imposing Taxes on us without our Consent;” “For abolishing the free System of English Laws in a neighbouring Province.”
 
Over time, America’s principles of free enterprise have shifted as government grew. The current debates in Washington DC demonstrate these divisions as free enterprise advocates fight for fewer restrictions and against new initiatives that would restrict free enterprise.
 
I propose to promote free enterprise by amending the US Constitution to:
  • Limit Congress’ ability to use the Commerce Clause to redefine non-commerce as commerce;
  • Restrict the impact of the US Supreme Court’s Wickard v. Filburn decision that allowed Congress to pass any law and federal Departments and agencies to issue any regulation based upon the rationale the activity is somehow connected with interstate commerce;
  • Constrain Congress’s power to regulate and control economic activity between and among the States.
 

Document #8

Introduced as SR258

Description: Liberty Amendment #8 – Protect Property Rights
 
John Jay was among the many Founding Fathers who wrote about the importance of private property rights: “It is the undoubted Right and unalienable Privilege of a Freeman not to be divested or interrupted in the innocent use of Life, Liberty, or Property but by Laws to which he has assented, either personally or by his representatives.”
 
The Fifth Amendment to the United States Constitution both guarantees this right by limiting governments’ ability to take private property (unless it is for a valid public use) and then requiring that when private property is taken for public purposes the government must pay the property owner “just compensation.”
 
Over time, various court decisions have eroded these protections. For example, Kelo v. City of New London allowed a local government to take and transfer private to a corporate entity in the name of the public good. Of equal concern are regulatory takings, where federal eminent domain or federal regulations bypass state legislatures or don’t go through state courts.
 
I propose a Constitutional amendment that would protect property rights by requiring the federal government to reimburse property owners whose properties are devalued by over $10,000 due to federal regulations, eminent domain, or other federal actions. The onus would be on the government to demonstrate their actions did not devalue private property(s).
 

Document #9

Introduced as SR259

Description: Liberty Amendment #9 – Grant States Authority to directly amend the Constitution
 
As previously noted, there are two ways to amend the Constitution under Article V:  (1) through Congress and (2) through a State-called (two-thirds) Constitutional Convention. To date, the twenty seven approved amendments to the Constitution have all been initiated by Congress and then approved by three-quarters of the States. A State-called Constitutional Convention has never happened.
 
However, even the Founding Fathers were fearful of a State-called Convention for initiating amendments. James Madison warned the 1787 Constitutional Convention that "difficulties might arise as to the form, the quorum &c., which in Constitutional regulations ought to be as much as possible avoided."  Madison preferred having the States initiate amendments, but recognized the lack specificity for such a process under Article V.
 
To rebalance the relationship between the States and federal government, I propose an amendment to the United States Constitution that would provide that two-thirds of the States be allowed to directly amend the Constitution without having to go through a congressionally called Constitutional Convention.
 

Document #10

Introduced as SR260

Description: Liberty Amendment #10 – States’ Authority to Check Congress
 
During the debates to ratify the US Constitution, Federalists repeatedly assured anti-Federalists and skeptics that there would be limits to the proposed federal government’s power. In Federalist #14, James Madison promised: “In the first place, it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws: its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.”
 
In Federalist #45, Madison added: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain the State governments are numerous and indefinite.”
 
In Federalist #46, Madison concluded: “On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.”
 
To rebalance the State's and federal government's relationship, this amendment would:
  • Require Congress a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final passage by both houses of Congress so as to give the States time to properly review all federal legislation, and;
  • Empower the States, by a three-fifths supermajority vote, to override a federal statute or regulation (which regulation imposes an economic burden of $100 million or more), within a two-year period from the date of its legal implementation.
 

Document #11

Introduced as SR261

Description: Liberty Amendment #11 – Protect the Vote
 
The right to vote is a key part of the United States Constitution and its Amendments:
  • Article VI, Section 3 provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States;”
  • 14th Amendment:  prohibits the denial or abridgement of voting rights of “all persons born or naturalized” in the United States;
  • 15th Amendment:  prohibits the denial or abridgement of voting rights based upon “race, color, or previous condition of servitude;
  • 19th Amendment:  prohibits the denial or abridgement of voting rights “on account of sex;”
  • 23rd Amendment:  gives citizens of Washington DC the right to vote in presidential elections;
  • 24th Amendment:  prohibits the denial or abridgement of voting rights “by reason of failure to pay any poll tax or other tax;” and
  • 26th Amendment:  gives 18-year olds the right to vote.
Given the importance of voting in our Constitutional Republic, I propose to protect these rights by amending the US Constitution to:
  • Require all voters in the United States to produce a valid photo ID for voting in national elections, and; 
  • Ensure no one is discriminated against by also requiring these photo IDs be issued free of charge to anyone who is unable to afford one.
I believe such changes will help to:
  • Promote voter confidence: nothing inspires confidence like photo ID;
  • Prevent voter fraud, which is generally only detected after the fact;
  • Help disadvantaged voters by providing them ID at no charge; and
  • Use 21st Century technology to further improve the integrity and efficiency of voting.