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Let’s Get Real On Constitutional Amendments – And Stop Promising Them

Let’s Get Real On Constitutional Amendments – And Stop Promising Them

Constitutional amendments are oddly popular these days in Republican circles: A Federal Marriage Amendment, a Balanced Budget Amendment, and a constitutional amendment banning abortion have all been part of either congressional proposals or presidential candidate promises.

This is a mistake.  Controversial issues such gay marriage, abortion, or massive budget changes are by nature not the sort of proposals that can garner the 2/3rds of both houses of Congress and 3/4ths of the states.   Even an amendment that is necessary to produce a better policy than the status quo can be a serious waste of resources and credibility if it has no realistic chance of passing.

To be sure, these amendments have their rhetorical uses for politicians.  They are grand gestures that provide an opportunity to show the depth of their commitment to an issue.  They allow politicians who believe in federalism but also have strong views on policies that are currently the prerogative of the states, to square the circle and avoid contradictions.  They also provide non-lawyers or those appealing to non-lawyers with an opportunity to straightforwardly push their views while staying out of the weeds of constitutional law.

I don’t expect politicians to relinquish these tools overnight.  The same pragmatist part of me that insists constitutional amendments are a waste of resources also tells me “So what, they deliver votes” when wearing the political hat instead of the policy hat.

However, we must recognize that these rhetorical advantages come at a price.  Many of the Republican Party’s internal problems stem from its failure to deliver on the conservative policies it has promised.

The Tea Party, the Religious Right,  and the base might demand these amendments, and politicians might gain short-term advantages from promising them, but eventually, the fact that it is virtually impossible to deliver on these promises will come back to bite them.  Furthermore, attempts to fulfill these promises might require trading tangible opportunities or policies for doomed votes.

Republican and Tea Party elites need to manage expectations.  The base will not like to hear that realistically, gay marriage and abortion aren’t going to be eliminated by constitutional amendment, and a real balanced budget amendment (despite large amounts of support in theory) is not much more likely.

It will be a serious problem in the long term if the base comes to expect the Republican Party to deliver these amendments.  One of the core missions of the Republican Party, the Tea Party, and the right in general is to end unsustainable borrowing from the future to fund policies that won’t work. It’s about time we take a hard look at the costs of borrowing political capital from the future to pursue legislation that won’t pass, because that too is unsustainable.


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Whether amendments can be delivered or not, some are clearly needed and if Republicans don’t work toward them, they have no chance of being adopted. Several areas where our system has gotten so distorted over the years and needs fixing follow:

1. Spending — there is a built in incentive for politicians to spend. They always want to be seen as “fixing” things, even if they have to invent things needing fixing. This usually involves spending. It has worked in getting politicians re-elected.

2. Centralizing power — another manifestation of fixing is expansion of the central government’s power. Often this expansion is accomplished through a total distortion, aided by the Supreme Court, of the commerce clause.

3. Corruption — Politicians seem to get more corrupt the longer they are in office in Washington. I include intellectual and political corruption in this conclusion.

A common rejoinder would be to just throw the bums out. That can work sometimes, but the power of incumbency is difficult to overcome. We need systemic changes. We need a realistic balanced budget amendment, term limits that limit lifetime tenure in the House and Senate combined, and considerable narrowing of the commerce clause to get it back to what was intended.

Can any of these be achieved? I don’t know, but they certainly won’t be if no one tries.

The discussion about a Constitutional amendment is not necessarily a bad thing. We have an example with the ERA. That was an attempt to amend the Constitution where the language of the Constitution already granted equal protection under the laws to every person. Ultimately, many states passed ERA amendments to their own constitutions, and the United States Congress passed Title VII and Title IX of the Civil Rights Act, providing essentially that, where the government chose to spend money, it could not discriminate on the basis of trivialities.

A similar outcome with the Balanced Budget Amendment is foreseeable. I would prefer to see something in the USC rather than the Constitution, because, while it is clear that the requirement for a balanced budget seems to help state governments control their spending, I distrust the permanency of an amendment to the Constitution.

    JayDick in reply to Valerie. | September 13, 2011 at 11:48 am

    There are different BBA versions out there. I think if you structure it correctly, it would be a good thing. However, it must be simple and easily measurable and it must have an enforcement requirement.

    I like the versions that say that spending in any year may not exceed actual receipts the previous year. Simple and measurable with some precision. An addition provision could make it incumbent on the President to avoid overspending, Congressional appropriations notwithstanding. Failing to enforce this provision would be grounds for impeachment. Of course, there would have to be an escape hatch where a supermajority of both houses could authorize excess spending.

    It is true that this provision might encourage tax increases. But, political forces would probably be sufficient to hold this in check. Provisions prohibiting tax increases and limiting spending to a percent of GDP are, to me, very difficult to administer and too subject to improper manipulation.

    tiger66 in reply to Valerie. | September 13, 2011 at 12:31 pm

    Valerie — I think we HAVE to go the amendment route. Think about what’s going on today. The Executive Branch selectively enforces the laws that are already on the books. If they don’t think a law is constitutional, they ignore it.

    Likewise, if I’m not mistaken, there is a law on the books today that says Congress must pass a budget every year. Congress has ignored its own law. That’s why there needs to be something more visible. If you violate an amendment, everyone can see it.

    But then again, I ain’t no constitutional scholar.

Advocating a constitutional amendment lets candidates give lip service to a cause while taking no meaningful action to advance it.

The way to circumvent the congressional block is through a constitutional convention. You need two-thirds of the states to petition for this, but Congress’s hand is forced. Reform can come from the states and the people–as it originally did.

Check out this document, posted on C4P a few weeks ago:

BannedbytheGuardian | September 13, 2011 at 4:38 pm

Forgive me as a non American here. However I was once handed the Dec of Indie & the Us consttution by an American visiting his ancestral home in the wilds of USSR. So I had some time to read it on the looong sloow trains across the steppes.

The amendment conditions are very similar to modern constitutions . in australia -a Constitutional Monarchy we require a parliament majority (given ) but the % of votes in the % of states is almost impossible. I think there have only been about 4 Passes.

What the left or those willing change don’t understand is that there is a conservatism & people are leery of those seeking to change /amend constitutions & thus do not trust them. Once we had a referendum to change the national song . We were given a choice of 3 & then the PM decided by himself anywayI think the original anthem is still on the books but no one knows it . They bring it out for a rare visit by the queen.

My input on the BBA is that this current situation has merely reflected the American people . We have had this credit /consumer stampede also but there have always been restrictions on mortgages . These have loosened from severe up to 1990 to withstanding the onflow of the US disaster. It is not as if anyone could not see this coming. You guys wilfully ignored ALL the signs. You had no will to act.

Spiritof61 -that is interesting but how different is that from reverse secession ie the majority of states taking over the federal gov?

Again -excuse any stupid things I might have said -but most of us out here in the wold are struggling to understand the USA today -hence my visits to Profs wonderful site.

    How different is that from reverse secession ie the majority of states taking over the federal gov?

    Secession is withdrawal of states from the United States. A constitutional convention is prompted by the states (and ultimately, the people) in accordance with the Constitution in order to amend it. It is the mechanism used to create it in 1787.

    Any amendments adopted by a convention must be ratified by 3/4 of the states, just as with amendments that pass Congress. The great advantage with a convention is that the federal legislature is bypassed and can’t stop amendments from being considered. It is State-driven, you might say.

I want a Constitutional Amendment banning all future Constitutional Amendments.

My question is who will be on the committee to form a constitutional convention. How will it be formed and who will be the decidider. We became a laughing stock when the members of the recent committee re spending and debt ceiling were named. It was all a joke. I don’t trust obama or the dims in fooling around with the Constitution or the republicans eiither for that matter. That has been my fear all along with this talk of a convention. I am not alone in this for sure. The last I heard only three or four more states are needed to form a constitutional convention and then the poop will hit the fan.

If we should have such a thing though, I would like an amendment that says congress cannot pass a multiple law. No more 2,000pages that no one knows what is in it. Each new law has to stand alone and be in language a layman can understand and without the ability to parse the language to suit their goals as the commerce clause was. These people seem to feel they must pass something. This will keep them busy translating legalese to plain english and eliminate pork at the same time. It should be an impeachable offense for any congressman or seantor to put forth a bill that the Constitution plainly forbids. That might stop them from these frivilous idiotic laws they pass re TV volume. I would also like to eliminate that slush fund both the president and congress can draw on that congress claims they must spend for pork before the president does. I also would like the house involved in approving judges…all of them. Leaving it to the senate has been a disaster.

    spiritof61 in reply to BarbaraS. | September 14, 2011 at 10:38 am

    The states, via their legislatures, state conventions, or referenda, would appoint the delegates to a constitutional convention. With a strong conservative majority in state governments now and the prospect of even bigger conservative wins next year, a 2013 convention would come at the best possible time.