A Balanced Budget Amendment is not enough - Give Us Back Our Constitution

Washington is all astir over the Obama administration's demand that the debt ceiling be raised so that the federal government can increase its borrowing (and hence spending).  House Republicans are assuring their Tea Party supporters that they will not vote to increase the debt ceiling without significant reforms in government spending.  For the most part it is not clear what exactly those reforms would be.  No one is proposing spending cuts sufficient to balance the budget in the next fiscal year and, with one exception, the 112th Congress is limited in the extent to which it can bind a future President or Congress. 

That exception is a constitutional amendment mandating a balanced budget.  This would bind future Presidents and Congresses, and force the difficult spending cuts that will be necessary to bring about a truly balanced budget (the Republican proposals usually also impede the Congress' ability to raise taxes, thereby forcing spending cuts as the only way to balance the budget.)  A variety of balanced budget amendments have been proposed.  One would think that the Republicans would be actively caucusing to agree on a common proposal.  Such a dramatic and popular move would more decisively call the Democrats' bluff on their maniacal spending than any other possible proposal.  Yet, although it gives enthusiastic lip service to the idea, the Republican leadership seems strangely quiescent about actually making it happen.

Now before you decide that this is just another Tea Party rant against our RINO leadership, let us take a closer look at some practical difficulties facing a balanced budget amendment.  Article V of the Constitution currently requires two-thirds vote in both houses of Congress to initiate a constitutional amendment proposal.  It then has to be approved by three-fourths of the States.  (By the way, these are highest hurdles to amendment of any constitution in the world, including those of all of the American states and every other democratic nation.)  With Democrats in the minority but still holding over a third of the seats in the House and still a majority in the Senate, a balanced budget amendment will not get out of the 112th Congress without Democrat votes.  How can this be achieved?

One strategy would be to simply demand that Democrats vote for a balanced budget amendment as a prior condition of any increase in the debt ceiling.  For fiscal conservatives this is an appealing approach, but it is unlikely to succeed.  At least one-third of each house in the 112th Congress are hardcore leftists who would rather risk a one-time government shutdown rather than have their ability to tax and spend truly and effectively shut down forever.  The unfortunate political realities are that the only way a balanced budget amendment could get enough Democrat votes in the 112th Congress to clear the super-high two-thirds hurdles would be if it as full of loopholes as PAY-GO and other bogus congressional budget-balancing schemes of the past.

An alternative would be to leave the balanced budget amendment tight, but only insist that the Democrats in the Senate allow a vote on it as a price of raising the debt ceiling.  While it would then certainly be defeated, it might be politically appealing for Republicans to force Democrats to vote against a strong balanced budget amendment.  However, an increase in the debt ceiling is a high price to pay for some 2012 campaign ads.

At this point a step back to look at the big picture may be helpful.  The underlying problem the balanced budget amendment attempts to address is the massive expansion of the federal government, an expansion which began in earnest almost a century ago with the election of Woodrow Wilson.  However, the budget is only a part of that expansion.  The growth of federal regulation has been even more gargantuan than that of the budget, and the federal courts have subsumed to themselves massive powers through loose interpretations of a few unfortunately vague passages in the Constitution.  

Of course, it was not supposed to be this way.  In a famous passage in the Federalist, Madison wrote that under the Constitution the federal government was supposed to be one of "few and defined" powers, with general governmental power vested in the States.  To assure that the States would stand on par with the new federal government, Article V authorized them to initiate amendments to the Constitution also, amendments which could be enacted without any congressional action.  Unfortunately, Article V requires that such state-initiated amendments be launched by a convention requested by two-thirds of the States.  While such a convention may have seemed like a reasonable approach in the 1780s, especially when it could take weeks for a single exchange of correspondence between the States, in the end no such convention has ever been called.  (Some conservatives are agitating for the call of a convention, but in today's legal environment the vagueness of its charter under Article V would guarantee that it would be tied up in litigation for years, and even if called it would likely be dominated by politicians and law professors who would be unlikely to make amendment proposals limiting government power.)  This has given Congress a de facto monopoly on initiating constitutional amendments.  Not surprisingly, no constitutional amendment since the Bill of Rights has limited federal power.  

If we are going to devote resources to a constitutional amendment in the 112th Congress, why not put through an amendment to the amendment process itself eliminating the unnecessary convention now required by Article V and permitting States to directly initiate amendment proposals?  This will break the current de facto federal congressional and judicial monopoly on interpreting the Constitution, and permit grassroots patriots on the state level to initiate amendments limiting federal power, such as a balanced budget amendment, without having to go through the federal Congress.  This will also open a path to other constitutional amendments to permanently constrain future federal overreach of the sort rejected by the people last November.  One such proposal is the "repeal amendment," which would permit two-thirds of the States to reverse a federal law or regulation, or the kind of proposals I have made in my book, Timely Renewed: Amendments to Restore the American Constitution, which would reverse the worse Supreme Court misinterpretations of constitutional language such as the interstate commerce, establishment, equal protection and due process clauses.

Such a proposal could also have much better chances of passage in the 112th Congress than a balanced budget amendment.  It is content-neutral, and leftists have their own constitutional amendment ideas.  All it does is return access to constitutional amendment to the grassroots, and empowering the people is what progressives are supposed to be all about.

Most importantly, such an "amendment amendment" would restore to the States and the people the control over their Constitution which has been ripped from them by federal power over the last hundred years.  Regaining power for the people forever over our fundamental law could well be worth letting the feds have one last little fling of debt and spending.

James W. Lucas is an attorney and the author of Timely Renewed: Amendments to Restore the American Constitution.  He blogs at www.timelyrenewed.com.