The Balanced Budget Amendment is not the Answer

What is the purpose of a constitution?

Government holds a legal monopoly on the use of physical force: It is the only institution in any society that is sanctioned to use force against people. Accordingly, some means is necessary to tell those in charge of the apparatus of government under what circumstances they may and may not exercise its powers. That is the purpose of a constitution. Its sole purpose is to define the limits of government power, for the purpose of protecting from government power the individual rights of its citizens. Government officials – politicians, bureaucrats, employees, all of them – may act only within the confines of the enumerated powers granted by the constitution. In other words, government acts by permission only.

A constitution is not designed to define the limits of personal private behavior (such as with amendments forbidding flag-burning or limiting marriage to one man and one woman). That is the purpose of laws created by government officials operating within the limits imposed upon them by the constitution. Nor is the purpose of the constitution to specify particular government policy. A proper constitution doesn’t spell out how to deal with the Middle East, what level of taxation is appropriate, or what criminal penalties are appropriate for Bernie Madoff. It will simply lay out the abstract parameters within which such policies and laws may be enacted and carried out.

The Balanced Budget Amendment being pushed by the Republicans does not measure up to these constitutional criteria. As Robert J. Samuelson writes over at the Washington Post: “The Constitution is the repository of the nation’s basic political principles, …not a handbook for the day-to-day operations of government.” A balanced budget mandate may be a good idea, but that belongs under the purview of elected legislators. Should they decide to enact one, it - like all laws – must then pass muster with the basic political principles enshrined in the constitution. But any attempt to muddy up the constitution with such concrete minutia would render it unworkable. As Samuelson writes:

The fatal flaw of the BBA is that it would take the Constitution in precisely this direction. It not only says the budget should be balanced, but one Republican version says it should be balanced at 18 percent of the economy (gross domestic product). That’s not a principle; it’s an instruction. Why not 17 percent or 22 percent of GDP? What happens in a national emergency?

All this threatens to turn many budget disputes into constitutional crises, as one side or the other takes to court to prove the other side violated the nation's Magna Carta. Do we really want to force unelected judges to make what are fundamentally political decisions? Didn’t we learn anything from Bush v. Gore?

Beyond that, a Balanced Budget Amendment may hinder but will not stop the welfare state express, as many conservatives hope. The driving force behind the rise of socialist statism in America is moral and philosophical. It is only on moral/philosophical grounds that the welfare state can be successfully challenged. As long as statism’s fundamental altruist/collectivist intellectual underpinnings are in place in the culture, the politicians will always figure out a way to get around the constitutional restrictions posed by the amendment. Samuelson continues:

The BBA is another example of congressional evasion. “It’s showcasing. It plays to the public,” says political scientist Allen Schick of the University of Maryland. What it does not do is balance the budget, now or ever. Only unpopular decisions to cut spending, including Social Security and Medicare, and raise taxes can do that. The BBA distracts from this and, if ever adopted, would undermine the Constitution.

I, of course, don’t favor raising taxes. But, Samuelson does raise an important point. Those “unpopular decisions” belong in the legislature. Furthermore, given the philosophical corruption of the collectivist mindset, it is not at all certain that a BBA will translate into much in the way of spending cuts. Such a constitutional mandate could (and will) empower judges to impose tax hikes to enforce that mandate. (This in fact happened in New Jersey, where in the 1970s the State Supreme Court essentially rammed a state income tax down the throats of the legislature and the state’s residents to enforce a constitutional education mandate. See my post New Jersey's Constitutional Roadblock to Reform.) A BBA could well become a tool for further entrenching the welfare state.

There are good reasons to oppose the Republicans’ initiative. (There may also be good reasons to support such a constitutional amendment. If there are, I have not seen them.) Not all opponents base their reasoning on respect for our basic constitutional principles, however. No discussion of our constitution is complete outside of the context of the philosophical principles that form our original constitution’s foundation. Stepping outside of that context is the means by which statists have been able to dominate over the past century. A good example of this tactic is provided by Doug Kendall and Dahlia Lithwick in a piece entitled The Balanced Budget Amendment would make the Framers weep.

The principles that must always form the framework for any constitutional question are laid out in the Declaration of Independence, this nation’s philosophical blueprint. The principles of unalienable individual rights and a government whose sole purpose is to protect those rights is the frame of reference upon which all aspects of the constitution must be considered. Rights are sanctions to freedom of action in a social context, not an automatic claim to unearned benefits. The freedom of action that rights convey also defines the limits of that freedom. Since rights are unalienable and held equally by all people at all times, each individual is free to act only so long as he respects and refrains from violating the same rights of others. Equally important, the principle of individual rights defines the limits of government’s power – a broad limitation indeed. In regard to the relationship of the government to the people, the Founders fundamentally intended this: The domestic laws and their agents – the police and the law courts - protect the people from criminal predators, while the constitution protects the people from governmental predators. Despite some imperfections and contradictions it contains, the original constitution was mostly true to its fundamental principles.

Kendall and Lithwick try to make the case that the Founding Fathers would have opposed the BBA. They are almost certainly right. So, it’s interesting that they sneak in Chief Justice John Marshall's 1919 quote that our constitution is a document that may be “adapted to the various crises of human affairs”. The “Living Constitution” doctrine attempts to airbrush our founding principles out of existence, a la “1984”, and has done far more to undermine our constitution than anything the Republicans have proposed. That helped paved the way for the ongoing stealth transformation of America from a constitutionally limited republic to a democracy. But the Founders understood majority rule as an institution that must be severely limited, because democracy unconstrained by the principle of individual rights is another form of totalitarian tyranny. Redefining America as a democracy is the Progressives’ real intend. Kendall and Lithwick take the right position for the wrong reasons. They oppose the BBA not to preserve the constitution or in deference and respect to the Founders or America’s founding principles, but because they fear it “would remove huge swaths of lawmaking power from majority rule and arbitrarily limit the size of government to a level not seen since the 1960s. Under the guise of promoting fiscal responsibility, we would be creating a government that could not govern.”

The 1960s are notable for a huge wave of rights violating “social welfare” legislation. Those programs clearly violate our founding principles. But the distorted view of our constitution that took hold mostly in the 20th century paved the way for democracy-driven welfare statism. Kendall and Lithwick fear the BBA not because it contradicts the roper purpose of a constitution, but because they fear that it will hamper the Progressives’ ability to “govern”. And to “govern”, in the Progressives concept, means to dictate.

I agree that the Founders probably would not have approved of the BBA. But they would have been horrified at the Progressives’ view of the constitution as a document devoid of the very principles that formed the basis for their achievement in creating this country.