The Balanced Budget Amendment is not only foolish; it's a constitutional travesty.

The law, lawyers, and the court.
July 15 2011 5:22 PM

Off Balance

The Balanced Budget Amendment would make the Framers weep.

The US constitution. Click image to expand.

For a group that claims to revere the Constitution, the Tea Party appears pretty determined to deal it a death by a thousand cuts. Its latest attack involves a nasty little piece of constitutional revisionism, complete with a "How can you be against that?" title: the "Balanced Budget Amendment." Putting aside the political questions about whether such a law is wise or practical, it also crashes headlong into the very constitutional principles the Tea Party purports to cherish. Not only that: Now there comes word that Republicans will hold a vote on this amendment next week before even considering raising the debt ceiling. So as part of their misguided effort to undermine the Constitution, they also plan to hold hostage the full faith and credit of the United States of America. 

First, a little context. Shortly after the November 2010 election, Public Opinion Strategies, a Republican polling firm, released a poll showing that 80 percent of Republican voters wanted America to "return to the Constitution." That was funny, since so many Tea Party candidates also demanded changes to important parts of the Constitution, supporting either outright repeal or odd mutations of the 14th, 16th, and 17th Amendments. Respectively, these amendments, among other things, guarantee citizenship to everyone born in this country; allow the progressive taxation of incomes to fund the government; and allow "the people" of each state, as opposed to its legislature, to select senators. 

The question is the same today as it was last fall. Which is it, Tea Partiers: Do you want to "return to the Constitution" or to some pulpy version of it you have clubbed in your own image?

Noteworthy as the earlier amend-and-repeal efforts have been, none is being pursued with the vigor devoted today to the Balanced Budget Amendment. Introduced in the Senate by Tea Party favorite Sen. Mike Lee of Utah, it requires that revenues equal expenditures each year, and that they not exceed 18 percent of the gross domestic product in any given year. Only if two-thirds of Congress agreed could these limits be exceeded, and any bill that would "levy a new tax or increase the rate of any tax" would also need approval of two-thirds of both Houses.

A balanced budget amendment sounds like a great idea—until you read a little U.S. history and count all the times America spent more in a fiscal year than it raised in taxes and why that was necessary for our very survival. As this article  published by the Constitutional Accountability Center (which one of us helped write, and which our piece relies on) makes clear, debt helped fund the War for Independence, complete the Louisiana Purchase, and preserve the Union during the Civil War. Debt not only helped us weather the Great Depression; it also gave us the tools we needed to emerge victorious from two world wars.

This new version of the Balanced Budget Amendment also includes provisions—requiring a supermajority to override its rules or to raise taxes—not included in the version of the Balanced Budget Amendment passed by the House (but rejected by the Senate) in early 1995, during the height of the Contract with America craze. These new "Crazier than Gingrich" provisions 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.

But beyond all these questions lies one that should give pause to every member of the Tea Party with a pocket Constitution: What would the Framers have thought of this amendment?

It's fairly certain that George Washington and the other Founders gathered in Philadelphia in 1787 would be appalled by the Lee amendment. It is not an accident that the first two enumerated powers the Constitution vests in Congress are the power "to lay and collect Taxes … to pay the Debts and provide for the common Defense and general Welfare of the United States" and "to borrow money on the credit of the United States." The Constitution's broad textual grant of power was a direct response to the Articles of Confederation, which had imposed crippling restrictions on Congress's power to borrow and tax. These restrictions plagued the Revolutionary War effort and made a deep and lasting impression on Washington and other war veterans. Lee and the other proponents of shrinking the federal government to restore freedom misapprehend that the Constitution recognized there would be no freedom without a strong federal government to promote it.

Moreover, in creating a supermajority requirement, the sponsors of the Balanced Budget Amendment do violence to another central tenet of the framer's project: The need for majority rule. The Founders made majority rule the default rule for our democratic Constitution. As Thomas Jefferson wrote, majority rule "is the natural law of every assembly of men, whose numbers are not fixed by any other law." The Constitution specifies a handful of departures from this default rule, but each exception warrants a particular justification that is consistent with the Constitution's democratic structure. Nowhere does our Constitution burden a substantive enumerated congressional power with the leaden weight of a supermajority.

Finally, in a Constitution filled with broad principles of governance, the amendment's arbitrary spending limit of 18 percent of GDP—an awkward and unworkable figure—would stick out like a sore thumb. Contrary to Chief Justice John Marshall's warning in the landmark decision of McCulloch v. Maryland (1819), Lee's arbitrary spending limit "partake[s] of the prolixity of a legal code," and would be out of place in a document that is designed to "to endure for ages to come … to be adapted to the various crises of human affairs."

We face a high duty when amending the Constitution: to match the Framers' maturity and foresight. By every measure that would have mattered to the Founders, Lee's proposed amendment easily flunks this test. Sen. Lee fancies himself a friend to the Constitution and an originalist. So why is he pushing for the ratification of an amendment that would take us back to the days before the Constitution was even ratified? The framers trusted in the wisdom of future legislators. The Balanced Budget Amendment represents a betrayal not only of our future but of our past as well.

Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

Dahlia Lithwick writes about the courts and the law for Slate

  Slate Plus
Political Gabfest
Oct. 31 2014 1:29 PM You, The Gabfest, and a Hotel Room Win tickets to attend a taping of the Political Gabfest, live from David’s Chicago hotel room.