The View From the Ground

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One of the most difficult things for Americans, politicians and citizens alike, is to comprehend under what circumstances it is okay to amend the Constitution. Most of us have feelings ranging from vague uneasiness to downright paranoia when we hear talk about new amendments. Whether the subject is the Equal Rights Amendment, a Balanced Budget Amendment, a Human Life Amendment or any other recent amendment effort, half of the country screams, a quarter cheers, and the remainder stands around looking befuddled.

It's really not that complicated, as long as you understand the nature of the Constitution. The Constitution is primarily a structural document. Its purpose is to define those elements, characteristics and limitations of government that are essential for the ongoing success of a republican democracy. It is not designed to define "the good life" . In fact, it is utterly amoral in nature. When considering amendments, we must therefore ask "will this change solve a problem that threatens republican democracy?" The very act of asking that question will eliminate many potential amendments, and certainly ought to get rid of the most frivolous. In case the answer is not immediately clear, the following questions may be asked to pin the amendment down:

Does the amendment primarily deal with Policy? If the answer is Yes, throw the amendment out. The Constitution should not deal with policy. It should address the organization, limits, and processes of government. The entire problem with judicial activism is precisely that judges are injecting policy into the Constitution via judicial review. We need to stop them from going in the back door, but we also must send away anyone knocking on the front door. Perhaps the most egregious example of constitutional amendment as Policy was Prohibition. A bunch of cranky temperance types decided we ought not to drink. So they wrote it into the Constitution. It was abuse and misuse of the Constitution to make rules about how citizens ought to behave. If we wanted to legislate ourselves into being a liquor-free country, no problem. That's why we have legislatures. Luckily we came to our senses and undid the damage before it became fashionable. Imagine what the PC-crowd could do today if the behavior of the citizenry were considered a valid focus of constitutional amendment. In a sense, the Constitution is designed to provide a solid framework within which policy debates can safely occur. Injecting policy into the Constitution gets it all backwards.

Is the amendment complicated? This is another very bad sign. The sort of principles that are appropriate for inclusion in the Constitution are by their very nature simple, and the most striking things about the U.S. Constitution are its simplicity and its brevity. There appears to be an direct relationship between the length and simplicity of a national constitution and its staying power. Ours has lasted 200+ years because it addresses fundamental principles in a clear and simple manner. Any amendment filled with ifs, ands, buts, or excepts, is poison.

Is the amendment consistent in application? This is somewhat related to simplicity. Remember, the purpose of the Constitution is not to micro-manage society, it is to state clear and lasting organizational principles important to our democratic survival. If we start waffling, making exceptions or targeting those principles, we open ourselves up to incredible abuse. This is the weak point of the Balanced Budget Amendment, or at least some versions of it. It requires that Congress balance the budget, except in the event of war, or except, or except, or except . This sort of equivocation renders the amendment meaningless and dangerous. Either it is important to the ongoing maintenance of democracy that we balance our budgets, or it isn' t. If we tolerate lack of consistency and clarity, the courts would be absolutely delighted to tell us what we really meant. If you don' t think this is a problem, look at what they did with the Civil Rights Act of 1964.

Does the amendment strengthen a weak plank in the bulwark of democracy? This is the test of all tests. The only reason we should be messing with the Constitution at all is because changing times have exposed a chink in the armor, something that either couldn' t have been considered 200 years ago, was deliberately ignored, or was just plain missed. Changing it for any other reason is specious and dangerous. Although, for example, I am completely sympathetic with the aims of those who have pushed for a Human Life Amendment, it simply does not pass this test. Whether life starts at conception or at birth has no bearing on whether or not we will continue as a viable democracy. It has a great deal to do with whether or not we are a good and wise people. The abortion issue is a moral/cultural battle and, as such, properly must remain outside the scope of the Constitution. I can already hear protests: " But the Supreme Court turned abortion into a Constitutional issue. We are just trying to undo what they have done." This is absolutely true. Roe v Wade is quite possibly the worst decision ever handed down by the Supreme Court. They raped the Constitution. We have Constitutional means by which we can undo their damage, including the confirmation process, impeachment and removing certain areas of law from their purview. But if we compound their irresponsibility with our own we will not have " fixed" anything.

We can see by applying these tests that most of what is floating around today in the way of amendments just doesn' t cut it. And yet, there is a definite sense that something is terribly askew in our democracy. Federal power grows, individual power shrinks, corruption and abuse of power run rampant, and cynicism reigns. What is the nature of this problem? Is there a "weak plank" , and can we fix it? I believe that the biggest problem our democracy faces was clearly identified by Tocqueville, and thought through to some extent by the founders: once person A has the power to vote himself largesse by forcibly extracting it from person B, democracy is seriously weakened. American Government in the latter half of the 20th Century has become a vast shell game, in which the entire point of government is to quietly expropriate money from the public at large and funnel it very visibly to selected groups. Many of our current problems can be traced to this simple concept. Taxes too high? Of course they are. This system inevitably takes on the characteristics of a pyramid scheme, and money must be funneled into the machine so it won' t collapse. Serious tax reform is impossible unless the root problem is fixed. Corruption in election finance? What else could we possibly expect? Government becomes the power broker in this system, able to punish or reward friends and enemies. Those who want the federal teat aimed their way had better ante up. Campaign Finance Reform is meaningless at this point. Money follows power. Big money follows big power. Until the power relationships are changed, all this " reform" will do is create more criminals. The Government is a spending money like a pack of drunken frat boys? Duh! That' s the whole point of the exercise.

Although the founding fathers perceived this sort of money/power relationship as a theoretical threat, it did not seem a imminent concern. After all, the Constitution they created, which severely limited Federal Power and reserved power to the states, wouldn' t have allowed for it to happen. It took a combination of Constitutional Amendment (The Income Tax), Court Packing (The New Deal) and blatant judicial activism for things to reach this state. We seriously need an amendment to the Constitution that resets the power relationships, strengthens this weak plank and that meets the tests described above. Failure to do so will result in the system worsening exponentially until, like all pyramid schemes, it collapses under its own weight. It won' t matter how many republicans we elect, or how many times we reinvent government. The problem is systemic, and can only be fixed though the Constitution. Unfortunately, we cannot simply say " Congress may not take money from person A and give it to person B" . We are so deeply into the transfer game that this would force us to scrap our existing government and start over. This will not work and would render the amendment unpassable. Here is an modest proposal that might do the job, from a working stiff outside the Beltway and " on the ground" .

Article 1: Any and all Acts, Bills and Legislation passed by the Congress which authorize the raising of Federal revenue or disbursement of Federal funds shall expire and require re-authorization by the Congress no more than four years after the date they are signed into law by the President. Any and all Acts and Legislation which authorize raising of Federal revenue or disbursement of Federal funds which are active at the time this amendment is ratified shall expire and require re-authorization by Congress no more than four years after the date this amendment is ratified.

[ This is a " sunset" provision. We cannot stop the shell game, but a sunset provision would at least require conscious re-affirmation of spending and taxing, and would serve to make legislators more accountable to the voters .]

Article 2: Any Act or Legislation which authorizes new or increased collection of revenue or new or increased disbursement of Federal funds shall become law only upon approval by a majority vote in the House of Representatives, approval by a Two-Thirds vote in the Senate and signature by the President of the United States.

[ This is a " supermajority" provision. While the House is supposed to sway with the fickle winds of change, the Senate is supposed to serve as a check on democratic passions. It is clear that requiring only a majority vote in the Senate is not allowing it to do its job as envisioned by the framers. This is in part because the framers couldn' t foresee the inherent corruption of the tax & spend culture. By requiring a 2/3 vote to approve any increases in taxes and spending, it will help to ensure that a case is made and seriously considered, and that taking other people' s money is just a little harder to do . The natural momentum of government is always increasing, never decreasing, power and income. This article cannot completely remove that very natural tendency, but it does place a partial block on the urge to reflexively increase.]

Article 3: Congress may not authorize the disbursement of federal funds to the several states, to non-citizens, or to corporations or other business entities not registered in the United States. Congress may not authorize the disbursement of federal funds to private or public corporations or associations except for the purchase of goods or services from those entities.

[ This article may raise a few eyebrows. One of the hard lessons learned during the past 60 years is that Government power is closely linked to government spending. This has had a significant impact on self-government, and has caused a profound and damaging change in the relationship of state and federal sovereignty. By closely defining how the federal government may spend money, we will define limits to its power. This article prohibits government from giving money to states or local governments. One of the worst aspects of the shell game is that folks in Phoenix end up financing mass transit systems for folks in Philadelphia. The only practical reason the feds send money to the states is in order to blackmail the states to do things they otherwise would not choose to do. Federalism expressly gives states and local governments the ability to raise taxes and spend money. Sound local control over local spending is an absolute necessity of sound democracy. This article would effectively end " Block Grants" , Federal Highway Funds, and the current Medicaid/welfare relationship of the federal and state governments. It would also stop direct federal aid to non-citizens, would effectively end corporate welfare, and would get the government out of the business of subsidizing groups like NPR and Planned Parenthood (unless, of course, the government wishes to contract with PP to provide abortion services) .]

Article 4: No individual, agent, agency or representative of the Executive or Judicial branch may impose or authorize any revenue generating rule, regulation, edict or decision unless explicitly authorized in advance by Act of Congress.

[ Although the Constitution clearly gives Congress, specifically the House, power to lay taxes and raise revenue, creative bureaucrats and judges have found ways to get around it, through user fees and court decisions. This explicitly confirms that no one in the federal government can raise monies through any means without the Congress' consent, which in turn would require a 2/3 Senate vote. The power to tax without representation is tyranny .]

Article 5: Neither Congress, the President nor the Judiciary shall make any law, rule, regulation, decision or edict which would compel or direct any citizen, association or corporation, municipal government or state government to disburse their own funds, or to engage in activity which would require the disbursement of those funds, unless explicitly authorized by the Congress in accordance with Article 2 of this amendment.

[ One of the most serious threats to democracy in the last 30 years has been the increased ability of the federal government to force states, municipalities and individuals to do things that cost lots of money. Whether it be unfunded state mandates, court decisions on school construction or EPA regulation of industry, these things cost as much money and create as much power as formal taxes, and should be treated as such ].

I am no legal scholar, and I am sure a bored lawyer could pick the wording to pieces, but I think the ideas stand up well to the tests listed above. This amendment does not prescribe policy. It does describe changes in the mechanics of government. By changing those mechanics we can reinvigorate some of the core concepts of federalism and limited government. }