Tag: Living Constitution

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.


Time Magazine has a front page article on the Constitution and the debate over it that is so hackneyed, so stupid, so factually challenged, that it must have been written by a summer intern snorting coke off the asses of drunken … oh, fuck, it was the Managing Editor? And he just sent two years at the National Constitution Center? What we he doing there, licking hallucinogens off the tiles? Even the guy who swept the floors would have better grasp of the Constitution than this:

Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: “The Constitution was written explicitly for one purpose — to restrain the federal government.” Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before. (See portraits of the Tea Party movement.)

If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed.

Honestly? If a student turned this into class, I’d fail them. The Constitution absolutely and most definitely limits the powers of the federal government. It spells out specific powers that it has, lays out rights it can not violate in using those powers and closes with: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” I guess the guys at Time are too wise and erudite to be bound by declarative English sentences. But to most of us, the meaning is all too clear.

A full deconstruction of Time’s nonsense can be found here. Stengel tries to argue his way to supporting Obama’s actions in Libya, calls on Obama to unilaterally raise the debt ceiling, justifies Obamacare and argues for getting rid of birthright citizenship. The Obamacare argument is particularly bad as he argue that all medicine counts as interstate commerce because doctors buy their stethoscopes out of state.


What this is really all about is the Lazy Liberal Man’s Way of Amending the Constitution. As I have argued before, people use “living Constitution” arguments because they are too lazy or their views too unpopular to go through the process specifically designed to change and update the Constitution: the amendment process. The abolitionists, the suffragettes, the early 20th-century progressives, the civil rights leaders — these people did what was required to change our country. It took decades and they had to fight like hell. But the result was a clear, decisive and absolute victory that changed our country for the better (well, mostly, prohibition and income tax were big mistakes).

Living constitution people want to go through the backdoor, to shove their ideas into the Constitution purely by dint of their moral and intellectual superiority. Persuading a supermajority of the country is simply beneath them. It’s laziness and condescension, pure and simple.

And the danger of “living Constitution” arguments can not really be overstated. Once you’ve bought into the idea that our founding document is just a list of suggestions, everything is on the table. Even of our freedom of speech founders. The beauty of being literal about the Constitution is that everyone knows what the rules are. The law is no longer arbitrary or subject to the whims of legislatures and prosecutors. When the Constitution says we have a right to free speech and we take that as literally as possible, we know we’re free. In a living Constitution world, we can suddenly and arbitrarily find ourselves in prison because someone decided you can’t call the President a dumbass.

Fareed Zakaria has a smarter article on this subject. My read is that he’s calling for either a Constitutional convention or a series of amendments. I would not oppose either although I prefer amending to any replacing.

As much as I agree with the methodology, I disagree with Fareed’s suggested changes. He suggests abolishing the electoral college. I oppose this because the electoral college forces candidates to build a national consensus rather than running up huge majorities among their base. And it’s really only made a difference twice in American history, so I really don’t see the crushing need to change it now.

He also suggests changing the Senate:

The structure of the Senate is even more undemocratic, with Wisconsin’s six million inhabitants getting the same representation in the Senate as California’s 36 million people. That’s not exactly one man, one vote.

It’s not intended to be. The senators are supposed to represent the states, not the people. If you proportion the senators by population, what is the point of the Senate? It becomes just a second House with bigger egos and longer speeches. Supporters of changing the Senate often resort to ridiculous arguments, trying to find the minimum number of Senators who could stop a piece of legislation and claiming this lets 1/3 of the country veto the wishes of the other 2/3. This argument came up a lot with Obamacare. But it’s a bogus argument since (a) even with Obamacare, the national consensus was against it; (b) we’re not a democracy.

Anyway, these two articles got me thinking about what kind of Constitutional Amendments I would like to see, assuming our political class could be bothered to invest the energy. Use the comments to suggest your own, but here’s a few I’d go for:

Balanced Budget Amendment: The GOP almost got this in 1995 and I wish it would come up again. I’d prefer one with a supermajority requirement on tax hikes and maybe an outlet in case of war or national emergency. But it’s clear that someone’s hand has to be forced on this.

Right to Privacy Amendment: Phrased like so: “The right of the people to engage in private activity shall only be infringed when Congress can demonstrate a compelling public need.” This would simply clarify the 9th and 10th Amendments, shifting the null hypothesis to that of freedom. Today, we have to show that a bad law violates our fundamental freedom. Under this amendment, we would be assumed to be fundamentally free and Congress would have to justify breaking that freedom.

Term Limits: This is one of the more controversial. The usual counter-arguments, however, don’t carry much weight with me. Yes, the people can vote out our Congressmen. However, the system has been so rigged through subsidies of incumbents and gerrymandering that it’s extremely difficult. And the argument that we should have an experienced Congress just crosses me as bizarre. The last ten years have seen some of the most experienced Congresses in history drive the country into a brick wall. An experienced legislator is like an experienced thief; we don’t really need them.

When I lived in San Antonio, we had term limits on the city council. It was awesome. They were much more conservative than any city council I’d ever seen. Conservative in the “get off my lawn sense” of keeping taxes law, government small and not subsidizing stupid “projects”. What term limits are is corruption limits.

Plain English Amendment: I ripped this one off of Heinlein. It’s a simple fact that many of our laws are so vague and written in such opaque lawyerese, that people can violate the law without knowing it. Hell, the fucking IRS doesn’t know our tax code. To me, this makes the laws of questionable validity. No one would tolerate it if laws were written in a secret code that no one understood and you would only know if you broke them by being jailed. Yet this is effectively what we have. I would love to see an amendment that would require laws be comprehensible to the citizens to whom they apply. If a hundred college graduates read the law and only about three understand what it says, that law needs to go back to the word processor.

There are other amendments floating around there that I am vehemently opposed to. You can probably guess them: the flag burning amendment, the anti-gay marriage amendment, amendments to enfranchise criminals or alter the electoral college or senate composition, an amendment to repeal birthright citizenship.

Anyway, that’s my … Jesus, how long did this post get? … my dollar and fifty three cents.