Time to Amend the Constitution?

How close is the U.S. to amending the Constitution. Well, there have been 27 amendments so far, 17 since the Bill of Rights (the first ten amendments, for those not keeping score), or roughly one amendment every 12 years or so. I wager the odds are high that we will see a 28th amendment in my lifetime … which hopefully is longer than 12 more years!  And if we are lucky, there will be more than one.  I do believe that keeping the Constitution alive — through amendments not interpretation — is vital for preserving liberty and keeping up with changing times.

Here’s what Glenn and I wrote in a New York Times op-ed on Monday (this text actually comes from an early draft):

Deficits create a fiscal illusion that the cost of government is less expensive than it is. Once politicians learned that voters were tolerant of deficits of millions of dollars, they responded with deficits of billions of dollars, and now a trillion-dollar deficit.

Let’s admit it, then. Conservatives were wrong not in beliefs that higher marginal tax rates harm growth and jobs and that debt is dangerous. We were wrong about strategy. The beast was not starved.

The challenge is to restore budget discipline. Sounding the alarm is not good enough. If we are to restore economic sobriety and intergenerational fairness to the budget, a binding solution is needed.

Bizarrely, few of the many responses have been willing to address our central argument that an amendment may be necessary, preferring ad hominem instead. Even Dan Drezner, to my surprise, came a little unhinged, though he wins the award for the most light-hearted response. Is anyone who worries about a 3:2 ratio of spending to revenue a “Debtist”? Mock me, fine, but at least give me a more nefarious moniker, Dan!

Anyway, I had the pleasure of speaking in Chicago at a half-day conference over the weekend on the balanced budget amendment, hosted by bba4usa.org. Their website is a good resource, and I am grateful that the organizers are open to the approach Glenn and I took when drafting our proposed amendment text (the appendix in BALANCE).  What was news to me is that some fringe right-wing groups are dead-set against the BBA, and in particular against a convention of states (known as an Article 5 convention, so named because the process is described in Article 5 of the Constitution). The supposed concern is that a convention of states discussing a(some) fiscal amendment(s) might take the occasion to do a “Delegates Gone Wild!” video, banning guns, banning free speech, promoting God Knows What, and probably adding a particular clause banning any member of the Scalia family from serving on the Supreme Court. A runaway convention creates Lefty Utopia!

Set aside for a moment how difficult (impossible) it will be for those runaway proposals to get approval from 3/4 of the states: Is there any possibility of delegates going beyond the scope of their authority? Sure, there is a possibility, if only because some degree of flexibility is necessary or else there’s no sense in convening. But where does my flexibility end and your wildness begin? On that note, every time schools let children play in the playground, there is a possibility that they will come to harm from an unlikely accident. This kind of paternalism is a Lefty fetish — no tag, no merry-go-rounds, no tall swings, no monkey bars, no running, indeed no playing on the playground.  How dare we exercise the liberty afforded by the Constitution to convene and discuss, you know, liberty.

Those who favor an amendment need to accept that balancing the budget of the United States is a centrist idea — we should not want and indeed should welcome fringe opposition,which will surely be hyperventilating on the Right and Left. Maybe the time has come for a good fight between the Balanced Centrists and the Unbalanced Debt-Deniers.

In all seriousness, voters should balance the costs and benefits of both action AND inaction. Do those opposed to a convention of states think that the current path is 100% safe for their cherished rights? How’s that free speech holding up? Is federalism as robust as it was 100 years ago? I’d like to think that a convention would not only restore some of the protections of liberty, but also could be done in a way that heals the divisive politics of the past generation.  Or perhaps you believe that politics as usual is the safest course for America’s future!

Finally, I’m delighted to have Mark Levin as an ally in the cause for amending the Constitution. Levin just published a new book called “The Liberty Amendments” and I ordered a copy from Amazon today. You should, too. Levin is a lot smarter and wiser than critics will admit. Sure, he rants on the radio, which sometimes makes me laugh and sometimes makes me turn the dial, but it would be a mistake to discount his substance just because you’ve heard that his style is abrasive. Let’s give this book a fair reading and talk about it.

4 responses to “Time to Amend the Constitution?

  1. No ad hominems here. However, I can get a bit worried about a convention for a couple of reasons. First, the original Constitutional Convention in 1787 overstepped its bounds (to our eternal benefit). It was convened to propose amendments to the Articles of Confederation, and it wound up proposing an entirely new governemntal system. A new convention could do the very same thing, with, as you would be quick to point out, the necessity of a 3/4 ratification requirement. Still, a lot of risk.
    Secondly, have a look at the state constitutions, especially ones that have been ratified over the last fifty years or so. They are not simple documents, especially compared to the constitutions they replaced. They go on for page after page with the conceit that they can fine-tune the state forever. The results have been universally complex, blurring the distinction between law and constitution, the final document being a small law library. So if no state has been able to keep from enshrining, in its new constitution, law that would more properly come from a legislature operating under constitutional powers, why would we feel that an Article 5 convention would be any different?

    • Ahh brevity. You are right, John, and it’s a concern I share. We have to balance the risks.
      I could write more in defense of brevity, but, I guess that would be ironic!

  2. I agree that the outcome of the original Constitutional Convention forming the Constitution was to our great benefit. For Madison and Hamilton the intention from the onset was to create a new government. What transpired was not a fluke, but Providence and history unraveled. The Constitution is what makes our country great, and is impregnable to logical criticism because it works and has worked for over 200 years. Perhaps I am naïve, but I believe most conventioneers would endeavor to maintain its vision. With specific parameters and written laws guiding the process, a ‘runaway’ convention can be avoided.

    Our Founders had a profound understanding of human nature and how to prevent corruption and cultivate good, especially for those in positions of power. By giving power back to the people, Article V exemplifies the Founders’ foresight to anticipate and address the oppression of an unrestrained government. A Constitutional Convention was considered by the Founders as something to be effected only in times of grave need. Amending the Constitution is a serious and thoughtful enterprise that can be of benefit to our country in specific situations, such as the convention that led to the forming of the Constitution or a convention that responds to the actions of an overweening President who unilaterally changes legislation.

    News reports that laws are being violated and going unpunished with a fair amount of consistency. While I do not believe a ‘runaway’ convention to be a threat, I do wonder whether a ratified amendment would be enforced.

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