July 22 (Bloomberg) -- An amendment to the U.S. Constitution should have two qualities: It should make sense as a piece of legislation, and it should be, as much as possible, politically neutral. The balanced-budget amendment, which has re-emerged in Congress as part of the political jockeying over the budget impasse, fails on both counts.
Justice Oliver Wendell Holmes famously said that a constitution is “made for people of fundamentally differing views.” There are limits to this. You don’t want the Constitution to be neutral between slaveholders and abolitionists. But it shouldn’t be choosing sides in budget disputes. These decisions are up to the elected branches.
A balanced-budget amendment, especially the current model, clearly does take sides. It would require a two-thirds supermajority in both houses to raise taxes, with no such requirement to lower taxes. It would require spending to be cut to 18 percent of gross domestic product, down from its current 24 percent, and even down from the 19 percent to 20 percent of recent years, prior to the recession. If the amendment were in effect today, the budget passed by House Republicans in April would spend too much -- it would be unconstitutional.
There are a variety of other practical objections. The main one is that requiring a balanced budget every year -- even one that can be waived by a two-thirds supermajority in both houses -- would deprive us of the ability to respond quickly to an incipient recession by increasing government spending or, for that matter, by cutting taxes.
There are plenty of technical problems, too: How do you decide when a recession has started, an event that would allow legislators to override budget constraints? What happens if Congress or the president simply ignores one or more of the amendment’s restrictions?
All such questions would have to be clarified by the courts. Just as they found themselves designing school bus routes in their efforts to enforce the Civil Rights Act, judges might well find themselves choosing among social programs to kill. Thus the party that supposedly stands for judicial restraint and deference to the elected branches now wants to invite judges to take over large chunks of national policy on basic questions of taxing and spending. All 47 Republican senators have endorsed the balanced-budget amendment.
Here’s a better idea: If House Republicans want a balanced budget, why don’t they propose one? Republicans controlled both houses of Congress and the White House during President George W. Bush’s first term. There was nothing to stop them from submitting and enacting a balanced budget. But they never did. Instead, they brandished their balanced-budget constitutional amendment. For a senator or member of Congress, voting for a balanced-budget constitutional amendment is an easy vote. Voting for a balanced budget, by contrast, would be a tough vote indeed.
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