Why Conservatives Should Bork the Balanced Budget Amendment

Why has Robert Bork maintained for two decades that true conservatives should ignore the returning tide of impassioned Republican invocations for a "balanced budget" amendment?  Well...because they should.

The 21st century's conservative is best recognized by his stalwart fidelity to a well-partitioned brand of federalism.  The partitioning of checked and balanced powers into three branches, one does well to remember, is the greatest single guarantor of our liberty.  Now, given the reckless abandon of the insolvent Obama deficits (three years running), otherwise well-informed and well-intentioned conservatives understandably seek to cure the maladies which directly and indirectly follow upon failing to balance the annual budget.  They seek to do so by -- well, balancing the budget...with an amendment.

Now, only the last part -- the amendment per se, or more specifically the means of balancing the budget -- is here objected to (why not, instead, a "no debt at all" provision?).  After all, such a thing would be blithely "unfederalist" (if I may) and wholly impracticable.  Quite simply, the proposed balanced budget amendment -- in all the sundry forms in which it has appeared through the years -- lacks enforcement provisions, and therefore will ultimately allocate taxing and spending powers to the courts.  And in these strange "wilderness years," serving up yet another specifically provided legislative power to the judiciary is simply unacceptable to the already beleaguered conservative mind.  How so?

The presumed effect of any constitutional amendment is the prohibition (or in some rare instances, the compulsion) of a given congressional act.  For example, let's look at the first of all amendments:  "the Congress shall pass no law [a singular act] respecting an establishment of religion."  Congress is not allowed to enact a specific type of legislation -- in the First Amendment's case, a law favoring one religious sect over another.  This is how amendments work, at least grammatically: they give courts a non-interpretive directive to follow, if Congress ever violates the plain language of the amendment to the extent that a case must be litigated.  (The Court found a way of perverting even proper First-Amendment-language to its will, but this constitutes an altogether different jurisprudential narrative.)  If the language of the amendment is sufficiently clear as a guideline for the Court, then no mention-worthy power is added to the Court's jurisdiction.

But in the case of the "balanced budget" amendment -- assuming arguendo that it were to be passed -- the Congress would remain free to spend profligately from New Year's Day until New Year's Eve in any given year, as so doing would not violate the amendment.  At least, no violation would transpire until it would be too late.  After all, the amendment would not direct, or even purport to direct, the spending or saving of a single congressional cent.  All it prescribes is a happy consequence, without really proscribing any congressional act or set of acts to achieve such penny-pinching.  Amendments, to be brief, must command or proscribe some expedient, not merely some sentiment.   No other amendments read so consequentially, one notices.

In an epoch when we conservatives find ourselves more diametrically opposed to liberal policies than ever, the "balanced budget" amendment would require Edenic levels of bipartisan fellow-feeling (which, as Rand Paul regularly points out, is an inherently untrustworthy thing anyway), and with regard, no less, to Congress's most fundamental power: "the power of the purse," to borrow Publius's term.  The main element which has appeared in all the renditions of the proposal would require only that "total outlays shall not exceed total expenditures," an admonition as hauntingly conclusory as it would be openly ideological.

In other words, the very problem which got us into this mess in the first place is that conservatives' counterparts in the Congress -- liberal Democrats and moderate Republicans -- spend like poets on payday.  That is, if anyone could have persuaded a majority of them to the conservative conservationism of money, then no amendment would be required ex ante!  The amendment itself would require what the felt need which led to its invocation could not supply: a majority of solvent-minded legislators.

Thus, on New Year's Eve, when Congress feverishly tries to balance the last-minute budget, Democrats will labor to do so by defunding yet another missile defense program, while Republicans will try to scale back certain entitlements programs.  Even in some fictive world where congressmen were competent, or at least well-intentioned, the amendment still would not provide any real aid to a good-faith effort by a coalition in either House to gain a majority by enacting a specific budget-balancing measure.  And thus, the Times Square Ball and the fiscal year would drop on a Congress which just violated the new amendment it passed, even as that same Congress intended to honor that same amendment.

Then the citizen suits would begin.  As Bork himself has written:

The result ... would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. By the time the Supreme Court straightened the whole matter out, the budget in question would be at least four years out of date and lawsuits involving the next three fiscal years would be slowly climbing toward the Supreme Court.

Worse still than "inconsistent" propositions of (now) judge-made budgetary law would be the fact that the Supreme Court has commandeered yet another most fundamental power of the legislature: taxing and spending.  All of the federalist concerns would, of course, apply in full force.  Five out of nine oligarchs on a bench would now wield the purse as a sort of ideological sword, and the single most definitive power of the Congress could now be adduced to all its lesser powers which have been made forfeit to the Court throughout the years.  The whole fiscal year would be decided by five people.

Hey, we could always hope that the Judiciary would delimit itself, as it is supposed to do in theory, by means of the "political question" doctrine.  If a given case is not justiciable (the court's word for "no relief we can offer") and/or is openly political as to matters of policy, the court itself is supposed to deny to hear it.  Oh, yeah, but this would entail a branch diminishing its own power in a Platonic display of governmental restraint -- an angelic act never before witnessed in the world of striving and struggling government actors (or within mankind's writhing ranks, for that matter).  Ironically enough, the "balanced budget" amendment could well be the first instance of such selflessness in recorded history.

Only, in this case, Congress would not willfully diminish its power.  Such diminution would come to pass only as an unintended consequence of a promising-sounding conservative blunder.  All that glitters -- even to the weather conservative eye -- is not constitutional gold.  (And even if it were gold, it would now be forfeit to the new judicial purse, anyway.)

Why has Robert Bork maintained for two decades that true conservatives should ignore the returning tide of impassioned Republican invocations for a "balanced budget" amendment?  Well...because they should.

The 21st century's conservative is best recognized by his stalwart fidelity to a well-partitioned brand of federalism.  The partitioning of checked and balanced powers into three branches, one does well to remember, is the greatest single guarantor of our liberty.  Now, given the reckless abandon of the insolvent Obama deficits (three years running), otherwise well-informed and well-intentioned conservatives understandably seek to cure the maladies which directly and indirectly follow upon failing to balance the annual budget.  They seek to do so by -- well, balancing the budget...with an amendment.

Now, only the last part -- the amendment per se, or more specifically the means of balancing the budget -- is here objected to (why not, instead, a "no debt at all" provision?).  After all, such a thing would be blithely "unfederalist" (if I may) and wholly impracticable.  Quite simply, the proposed balanced budget amendment -- in all the sundry forms in which it has appeared through the years -- lacks enforcement provisions, and therefore will ultimately allocate taxing and spending powers to the courts.  And in these strange "wilderness years," serving up yet another specifically provided legislative power to the judiciary is simply unacceptable to the already beleaguered conservative mind.  How so?

The presumed effect of any constitutional amendment is the prohibition (or in some rare instances, the compulsion) of a given congressional act.  For example, let's look at the first of all amendments:  "the Congress shall pass no law [a singular act] respecting an establishment of religion."  Congress is not allowed to enact a specific type of legislation -- in the First Amendment's case, a law favoring one religious sect over another.  This is how amendments work, at least grammatically: they give courts a non-interpretive directive to follow, if Congress ever violates the plain language of the amendment to the extent that a case must be litigated.  (The Court found a way of perverting even proper First-Amendment-language to its will, but this constitutes an altogether different jurisprudential narrative.)  If the language of the amendment is sufficiently clear as a guideline for the Court, then no mention-worthy power is added to the Court's jurisdiction.

But in the case of the "balanced budget" amendment -- assuming arguendo that it were to be passed -- the Congress would remain free to spend profligately from New Year's Day until New Year's Eve in any given year, as so doing would not violate the amendment.  At least, no violation would transpire until it would be too late.  After all, the amendment would not direct, or even purport to direct, the spending or saving of a single congressional cent.  All it prescribes is a happy consequence, without really proscribing any congressional act or set of acts to achieve such penny-pinching.  Amendments, to be brief, must command or proscribe some expedient, not merely some sentiment.   No other amendments read so consequentially, one notices.

In an epoch when we conservatives find ourselves more diametrically opposed to liberal policies than ever, the "balanced budget" amendment would require Edenic levels of bipartisan fellow-feeling (which, as Rand Paul regularly points out, is an inherently untrustworthy thing anyway), and with regard, no less, to Congress's most fundamental power: "the power of the purse," to borrow Publius's term.  The main element which has appeared in all the renditions of the proposal would require only that "total outlays shall not exceed total expenditures," an admonition as hauntingly conclusory as it would be openly ideological.

In other words, the very problem which got us into this mess in the first place is that conservatives' counterparts in the Congress -- liberal Democrats and moderate Republicans -- spend like poets on payday.  That is, if anyone could have persuaded a majority of them to the conservative conservationism of money, then no amendment would be required ex ante!  The amendment itself would require what the felt need which led to its invocation could not supply: a majority of solvent-minded legislators.

Thus, on New Year's Eve, when Congress feverishly tries to balance the last-minute budget, Democrats will labor to do so by defunding yet another missile defense program, while Republicans will try to scale back certain entitlements programs.  Even in some fictive world where congressmen were competent, or at least well-intentioned, the amendment still would not provide any real aid to a good-faith effort by a coalition in either House to gain a majority by enacting a specific budget-balancing measure.  And thus, the Times Square Ball and the fiscal year would drop on a Congress which just violated the new amendment it passed, even as that same Congress intended to honor that same amendment.

Then the citizen suits would begin.  As Bork himself has written:

The result ... would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. By the time the Supreme Court straightened the whole matter out, the budget in question would be at least four years out of date and lawsuits involving the next three fiscal years would be slowly climbing toward the Supreme Court.

Worse still than "inconsistent" propositions of (now) judge-made budgetary law would be the fact that the Supreme Court has commandeered yet another most fundamental power of the legislature: taxing and spending.  All of the federalist concerns would, of course, apply in full force.  Five out of nine oligarchs on a bench would now wield the purse as a sort of ideological sword, and the single most definitive power of the Congress could now be adduced to all its lesser powers which have been made forfeit to the Court throughout the years.  The whole fiscal year would be decided by five people.

Hey, we could always hope that the Judiciary would delimit itself, as it is supposed to do in theory, by means of the "political question" doctrine.  If a given case is not justiciable (the court's word for "no relief we can offer") and/or is openly political as to matters of policy, the court itself is supposed to deny to hear it.  Oh, yeah, but this would entail a branch diminishing its own power in a Platonic display of governmental restraint -- an angelic act never before witnessed in the world of striving and struggling government actors (or within mankind's writhing ranks, for that matter).  Ironically enough, the "balanced budget" amendment could well be the first instance of such selflessness in recorded history.

Only, in this case, Congress would not willfully diminish its power.  Such diminution would come to pass only as an unintended consequence of a promising-sounding conservative blunder.  All that glitters -- even to the weather conservative eye -- is not constitutional gold.  (And even if it were gold, it would now be forfeit to the new judicial purse, anyway.)

RECENT VIDEOS