Constitutional Assault

The Constitution provides a framework for governing and spells out a few fundamental rights that place limits on how far any short-term majority may go, but the details of public policy are left to politics, making for a neat separation of the legal and political realms -- just as the Constitution's framers had envisioned. This neat separation is now being threatened, however, by a proposed balanced budget amendment that has gained increasing support in Congress and state legislatures. For the first time in history, a specific economic ideology -- no deficit spending -- could be enshrined in the Constitution.

Of the Constitution’s 27 Amendments, only two do not deal with either rights or governmental procedure: the 18th Amendment -- Prohibition -- which attempted to govern social policy, and the 21st Amendment that repealed it. The proposed balanced budget amendment would be the third amendment of policy, and like Prohibition, it would undermine the Constitution’s intent by blurring the line between higher law and politics.

State constitutions have often run into this problem, as they are easier to amend. The 50 state constitutions have had nearly 6,000 amendments added to them, many of which are the products of pure interest-group politics. This makes it difficult to distinguish state constitutions from general legislation, and waters down the notion of fundamental rights in the process.

A balanced budget amendment would politicize our federal Constitution in the same way because it falls outside the scope of rights and procedure and crosses over into policy-making, which the framers intended to be the domain of the legislative branch. Embedded in the Constitution for the first time since Prohibition would be a controversial, substantive choice.

But not only would the amendment inject politics into the Constitution, it would directly contradict a principle fundamental to democracy: that of majority rule. The balanced budget amendment that nearly cleared Congress this past legislative session contained provisions that would dramatically alter the original constitutional framework for taxing, borrowing, and spending by mandating supermajorities: A three-fifths vote would be required to allow deficit spending, and tax increases would need majority approval of the full body in each house, instead of just the majority of legislators present. These provisions contradict Article I of the Constitution, which states, "a majority of each [house] shall constitute a Quorum to do business."

True, the Constitution does contain exceptions to the principle of majority rule (it takes a two-thirds vote of either house to expel one of its own members, two-thirds of each house to override a presidential veto, two-thirds of the Senate to approve treaties, and two-thirds of both houses to propose a constitutional amendment), but they are all extraordinary situations involving either individual rights or checks and balances. In no way does a balanced budget amendment fall into these categories.

In fact, the Constitution's framers explicitly warned against such supermajorities: "In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed," James Madison wrote in Federalist No. 58. "It would be no longer the majority that would rule: the power would be transferred to the minority."

It is almost universally accepted among economists that at least some deficit spending is necessary during times of recession or depression. That is why the architects of the balanced budget amendment left themselves the option of a three-fifths vote to allow deficit spending. But if Madison's assertion is correct, lawmakers don't have the safety net they think they do. Recessions are increasingly regional; putting together supermajority support for deficit spending when parts of the country are untouched by an economic downturn might be impossible without granting major concessions to minority coalitions.

What's the solution? Leave the Constitution alone. Let the legislative branch resolve its disputes about economic policy the way the framers of the Constitution intended, and forget about supermajorities that undermine our democracy. Congress is free to work toward a balanced budget now, and that is exactly what lawmakers have been doing for the past four years -- without a constitutional amendment, just as the framers envisioned. Policy-making simply has no place in our Constitution.