The Latest Constitutional Laugher

Oh, boy. You know, libs, you probably should avoid diving into arguments about the Constitution. Because it always becomes clear, almost immediately, that you’re not playing fair:

For a group that claims to revere the Constitution, the Tea Party appears pretty determined to deal it a death by a thousand cuts. Its latest attack involves a nasty little piece of constitutional revisionism, complete with a “How can you be against that?” title: the “Balanced Budget Amendment.”

Amendment, Mr. Kendall and Ms. Lithwick, is neither an attack on the Constitution nor revisionism. It is the very process by which the Constitution is supposed to be modified and has been 17 times. If you want to talk about “revisionism”, you can start with the ridiculous living Constitution BS that says we can interpret the Constitution however the hell we want to. Few Amendments, no matter how ridiculous they might be, are an attack on the Constitution. It’s not like they’re talking about repealing Free Speech.

But let’s go on:

First, a little context. Shortly after the November 2010 election, Public Opinion Strategies, a Republican polling firm, released a poll showing that 80 percent of Republican voters wanted America to “return to the Constitution.” That was funny, since so many Tea Party candidates also demanded changes to important parts of the Constitution, supporting either outright repeal or odd mutations of the 14th, 16th, and 17th Amendments. Respectively, these amendments, among other things, guarantee citizenship to everyone born in this country; allow the progressive taxation of incomes to fund the government; and allow “the people” of each state, as opposed to its legislature, to select senators.

See, here’s the thing: they propose to change those parts of the Constitution. They didn’t propose — as many libs often have — ignoring them. I would probably oppose those repeals. But these are not attacks on the Constitution any more than the 21st Amendment was. They are, in fact, what the Constitution is all about — establishing clear guidelines which the government must obey.

That’s what returning to the Constitution means. It means we go back to issues being settled in our defining documents, not by judicial fiat or legislative whimsy. And if the Tea Party loses, they lose. They’re not going to fail to repeal the 16th Amendment and then not pay their taxes, this being the equivalent of what the Left did to the Second Amendment for sixty years.

A balanced budget amendment sounds like a great idea—until you read a little U.S. history and count all the times America spent more in a fiscal year than it raised in taxes and why that was necessary for our very survival.

Yes, the Amendment accounts for this. What it stops is running up massive debt at a time when we aren’t fighting for our very survival. In the end, I suspect a BBA will end up useless as Congress will find reasons we are fighting for our very survival in order to avoid making tough choices. If it’s not the War on Terror, it will be healthcare.

But I digress. They move on to attack the supermajority tax hike requirement. We can disagree on this, but they try to pretend that this would be against what the Founders wanted. Before we get too far into the weeds on that, however, I should note that it doesn’t really matter what the Founders wanted and their desires only matter to the cartoon version of “Tea Partiers” and “constructionists” that Lithwick and Kendall have constructed. Our Founders also wanted slavery to stay legal and Senators to be selected by the states. They would be appalled by almost everything these writers want, so turning to them is a bit bizarre. What matters is what the Constitution says now, in black and white, not what it might have said 200 years ago.

But, let’s let them have their say:

The Constitution’s broad textual grant of power was a direct response to the Articles of Confederation, which had imposed crippling restrictions on Congress’s power to borrow and tax. These restrictions plagued the Revolutionary War effort and made a deep and lasting impression on Washington and other war veterans. Lee and the other proponents of shrinking the federal government to restore freedom misapprehend that the Constitution recognized there would be no freedom without a strong federal government to promote it.

True. But they also feared a strong central government and tried to strike a balance by giving it enough power to protect the country but not so much that it could run roughshod over the states and the people. The Lee Amendment may be too strong, but it’s heart is in the right place. Since our legislators refuse to recognize the statutory limits on federal power, we’ll place financial ones on them. The main reason there has been no balanced budget amendment for 200 years is because it was only recently that we realized some 537 sons of bitches would run this country into the ground, given half a chance.

Our government is in no danger, even if the Lee Amendment is passed, of reverting to the weak Articles of Confederation model. To make that comparison is to trivialize the debate. A statutory limit of federal spending to 18% of GDP may be unwise, but it is not going to cripple the Republic. Get a grip.

Moreover, in creating a supermajority requirement, the sponsors of the Balanced Budget Amendment do violence to another central tenet of the framer’s project: The need for majority rule. The Founders made majority rule the default rule for our democratic Constitution.

Ridiculous. The Founding Fathers favored majority rule — providing that majority was comprised of male landowners. Moreover, they specifically limited majority rule by putting in place of Bill of Rights and Enumerated Powers to limit what the majority could do. They also put critical parts of our government — over-riding vetoes, ratifying treaties, amending and impeaching — beyond a mere majority and into the hands of a supermajority. And, as noted, they opposed the popular election of Senators. They were not fans of democracy; they created a Constitutional Republic with interlocking pieces designed to limit its power.

The thing that really bugs me about this article is the tone. It’s perfectly easy to make a case against the Lee Amendment without adopting a sneering condescending tone toward the Tea Party and getting tangled up in arguments about what George Washington might have thought about it. The main points in opposition are:

1) An 18% of GDP limit on the federal is arbitrary and might be impossible to achieve given our commitments to the military and seniors.

2) The 2/3 requirement essentially gives 1/3 of Congress veto power over fiscal policy. Keep this in mind: a 2/3 majority requirement would probably have prevented the Reagan tax cuts and certainly the Bush tax cuts as both, by law, would have to be scored as increasing the deficit (as indeed, the Bush cuts did; unless you think our economy would have shrunk by about 20% between 2001 and 2008 without the tax cuts).

3) Section 4, which only allows tax increase on a 2/3 supermajority vote, is way too broad and inclusive. It could, for example, make it impossible to eliminate the tax expenditures associated with ethanol and Obamacare. Scoring changes in the tax code is tricky and I suspect the biggest unintended consequences of this would be to make fundamental tax reform impossible.

I don’t agree with those arguments entirely, but those are the legitimate ones. And I made them without mocking the Tea Partiers or throwing out condescending bullshit about 18th century politices.

To be honest, the Lee Amendment does go too far for me as well. The version proposed in 1995 was just fine (see here for the differences) and I suspect could be passed. Congress might routinely over-ride it but at least it would be in.

IF, that is, a balanced budget is what the GOP really wants. I’ve yet to be convinced that this is the case.

Comments are closed.

  1. richtaylor365

    The main reason there has been no balanced budget amendment for 200 years is because it was only recently that we realized some 537 sons of bitches would run this country into the ground, given half a chance.

    Therein lies the crux, the perfidy of Congress is inherent in it’s system, when you are spending other people’s money there are no built in restraints. The founders expected men of reasonable character and industry to populate congress, men who understood the very basics of economy, business, budgets, and capital restraint, men who would not ruin their own honor with personal bankruptcy so they could be relied on to give the nation similar due diligence.

    But this bunch can not be trusted, they have proven themselves not only not trustworthy but incompetent in that they were given an amount to work with and they could not restrain themselves, so now they are coming to us with their hand out admitting their incompetence, and asking for more money, the whole mess is absolutely shameful.

    1) An 18% of GDP limit on the federal is arbitrary and might be impossible to achieve given our commitments to the military and seniors.

    Lee has already admitted that this is only a baseline, a starting point to actual negotiations. but it’s all moot anyway, Obama has said if cut, cap and balance reaches his desk, he will veto it.

    IF, that is, a balanced budget is what the GOP really wants. I’ve yet to be convinced that this is the case.

    It is easy (and safe) to vote for something you know won’t pass, no courage is needed. As far as what they want, how about if instead of demagoguing in front of the press, the president unasses some specifics in what he is willing to cut. So far he has provided a laundry list of sacred cows (stuff off limits), but nothing he is willing to throw on the table, start with that.

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