Contributor Post Created with Sketch. What Good Is Another Parchment Barrier?

 

e48202_c9245fe6b9db46f592ca1450e15e3049.jpg_srb_p_397_335_75_22_0.50_1.20_0.00_jpg_srbAmericans are tired of Washington. We keep sending new politicians who promise to get our finances in order, but every year the national debt goes up. The fundamental problem is that the United States faces an overconcentration of power in Washington, D.C. The ability to incur limitless amounts of debt is what enables politicians to get away with promising to spend limitless amounts of money. That power is easily leveraged by special interests to enrich themselves at the expense of current and future generations. As a result, Washington has not — and will never — control its addiction to debt.

Fortunately, the Founders gave us the power to solve the problems caused by “Washington gone wild” in Article V of the Constitution. Article V empowers state legislatures to originate constitutional amendments. This authority was meant to be used as a crucial failsafe to protect our liberty from an overconcentration of power in Washington, D.C. In Federalist No. 85, the last Federalist Paper, Alexander Hamilton urged skeptical states to ratify the Constitution because they retained ultimate authority over the federal government through Article V’s state-initiated constitutional amendment process.

Those who oppose states using their power to originate amendments under Article V often start with the question, “Why amend the Constitution when nobody follows the Constitution as written?”

This question is flawed in two respects.

First, it overstates the degree to which the Constitution is not followed. The truth of the matter is that much of the substance of the Bill of Rights retains its force, especially the First and Second Amendments in recent years. In non-national security settings, nearly all of the procedural rights protected by the Bill of Rights also retain their force. Likewise, the judiciary still judges, Congress still originates appropriations, and the President still acts as commander in chief for only two terms. The Constitution is not enforced well, but it is not entirely ignored either. Big and important chunks of the Constitution remain effective and observed.

Second, the question understates the importance of using the amendment process to define power structures, rather than simply layer-on still more parchment barriers. After all, the primary enforcement mechanism of the Constitution is not and was never meant to be parchment. It was meant to be the division of power into competing branches and departments of government, both horizontally and vertically. That original division of power no longer exists because of amendments to the Constitution.

The 16th Amendment bestowed upon the federal government unlimited income tax authority, overriding the prohibition on direct and capitation taxes which was meant to give states a relative advantage in their tax base as much as to protect the people from another taxman. The 17th Amendment removed the states from a position of control over the US Senate. These two amendments dramatically undermined the division and balance of power against power, and ambition against ambition, that was struck by the original constitution.

Because of these amendments, the states no longer have a tax base advantage over the federal government. They no longer control by proxy half of the whole federal legislative power. They no longer control by proxy half of the appointments power. And they no longer control by proxy half of the treaty power.

These were not minor changes in the Constitution’s original design.

With so much power consolidated in the hands of the Washington political class, unchecked by any external institution, is it really any wonder that federal executive and legislative power has grown far beyond its original bounds? Add to this, the original structural flaw of unlimited borrowing capacity—the ability to spend unlimited amounts of money without any immediate political cost—and you have the recipe for the federal government we now have.

Things do not bode well for the future of our Republic so long as the federal government structurally retains unlimited borrowing capacity, unlimited taxing authority, and the unlimited consolidation of power in Washington. But this observation underscores that constitutional amendments matter, notwithstanding the cynical and misleading question that is the title of this article, and that well-designed amendments should not merely layer on still more parchment barriers.

Instead, a well-designed amendment should reform the structure of the Constitution. It should divide and balance power horizontally and vertically to restore what was lost in the 16th and 17th Amendments, and to fix what was broken at the beginning by the Founder’s ill-fated decision to give the federal government unlimited borrowing capacity. In other words, an effective amendment must remedy, to some extent, unlimited borrowing capacity, unlimited centralization of power in Washington, and unlimited taxing authority.

The Compact for a Balanced Budget-would do just that by advancing a federal Balanced Budget Amendment that:

  • Limits the federal government’s borrowing capacity;
  • Requires state legislative approval for any increase in federal borrowing capacity; and
  • Restrains the federal government’s taxing authority.

In short, by joining the Compact for a Balanced Budget, your state can start the process of restoring the Republic by striking at the root causes of its decline.

There are 12 comments.

  1. Z in MT Inactive

    Nick Dranias: Add to this, the original structural flaw of unlimited borrowing capacity—the ability to spend unlimited amounts of money without any immediate political cost—and you have the recipe for the federal government we now have.

    This wasn’t an original flaw, it was a flaw caused by the adoption of a fiat currency. When money was defined by gold, the borrowing power of the Federal government was severely limited by the political ability to tax. Go back on the gold standard (or have the world wake up to the stealth theft inherent in fiat currency) and you won’t need any amendments.

    • #1
    • October 22, 2015, at 4:55 PM PST
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  2. danok1 Member

    As I noted in another thread:

    I’m a fan of the Article V amendment convention movement, but I can’t overlook the fatal flaw: Congress has to call the convention. Congress will never do so, and there’s no way to force their hand.

    Nick, how do you get past this?

    • #2
    • October 22, 2015, at 5:06 PM PST
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  3. Nick Dranias Contributor
    Nick Dranias Post author

    Z in MT: Unfortunately, you are wrong. Banning fiat money or restoring gold or repealing the FED would not prevent Washington from borrowing without limit. Why? Because the borrowing power is unlimited and it is implicitly backed by the taxing power, which is likewise (now) unlimited. Only a limit on federal borrowing capacity can stop the phenomena of politicians mortgaging our kids’ future to buy votes.

    danok1: Look up H.C.R. 26. 19 cosponsors lead by Congressman Paul Gosar are already moving the congressional component of the Compact for a Balanced Budget. There is no good political reason why Congress wouldn’t pass it now, when we only have 4 states in the compact. It is all political upside and no political downside. It is only when the Compact gets to the point of actually organizing a convention that Congress would have a political reason to balk. But we are not waiting. We say approach Congress when we are weak and meaningless and a vote is nothing more than a campaign slogan. That’s the tactical advantage of the Compact approach.

    • #3
    • October 22, 2015, at 7:24 PM PST
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  4. Larry3435 Member

    Nick, I respect you for trying to come up with an answer, but you are misdiagnosing the problem. The problem is not concentration of power in Washington. The problem is not the politicians.

    The problem is the voters. The problem is the structural problem that is built into every democracy – Bread and Circuses. Enough voters have figured out that they can vote themselves goodies without limit, and the productive class can do nothing to stop them. And because those voters will only vote for Santa Claus, that’s who we get in our elections. That applies to the voters identified with both parties, because they all want their goodies. Tell a room full of Republican voters that your plan is to eliminate their entitlements, and watch the blood bath.

    This is a democracy, Nick. At least, for the moment it’s a democracy. The voters are against you. It doesn’t matter what kind of procedure you propose, it won’t work. Because the voters are against you, and in the end the voters will get the government they deserve. These greedy bastards deserve catastrophe, and they are going to get it.

    • #4
    • October 23, 2015, at 6:06 AM PST
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  5. Luke Thatcher

    danok1:As I noted in another thread:

    Nick, how do you get past this?

    From Article 5…

    or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress

    Note the use of the word ‘shall’. The congress doesn’t have a say in whether to call for the convention upon application of 2/3 of the states.

    • #5
    • October 23, 2015, at 1:33 PM PST
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  6. Nick Dranias Contributor
    Nick Dranias Post author

    Luke/danok1-The Compact’s application has an effective date that says it is only effective when 38 states join the Compact. There is no application in the Compact, legally speaking, until that wire is tripped. But once that contingency is met, then suddenly the threshold needed to trigger the congressional call will be more than met. The convention then must be called either in a new resolution or, if we have succeeded in passing it already, as provided in H.C.R. 26, which says the convention contemplated by the Compact is called when 38 states join the Compact. The Compact then requires the organization of a convention in not less than six weeks after the call is issued. It requires delegates to vote rules into place limiting the convention to a 24 hour committee of the whole with the sole job of debating an up or down vote on the amendment already contained in the Compact. Because 38 states will be in the Compact and because Congress will be adopting the Compact in its call (if we succeed with H.C.R. 26), a quorum will be controlled by Compact state delegates and the resulting convention will be fully controlled and targeted as desired. That said, if Congress does not pass H.C.R. 26 in advance, and refuses to call the convention or (worse and more likely) tries to call the convention on its own terms, perhaps deciding delegates and rules in its own resolution, then there is only litigation and if the litigation goes the wrong way, a constitutional crisis. But if Congress won’t follow its mandatory obligations or if Congress is willing to go to war with 38 states to muck up the effort, there will be hell to pay politically, at the very least. This is because the political will manifested in the Compact will be contemporaneous to the call because the Compact sunsets and self-repeals on April 12, 2021. Lots of congress creatures will likely lose their jobs. Since they will know that, the better bet is that they will ultimately play along with their constitutional obligations Read more at http://www.CompactforAmerica.org

    • #6
    • October 23, 2015, at 2:24 PM PST
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  7. Nick Dranias Contributor
    Nick Dranias Post author

    Larry3435-how do I say this in a nice way?

    You are so wrong. Allow me to explain.

    First, ours is emphatically not a democracy. Benjamin Franklin was famously asked after the Philadelphia Convention, “What kind of government have you given us, Dr. Franklin?” He replied: “A republic, if you can keep it.”

    In Federalist 10, James Madison emphasized that our constitution did not create a democracy observing, “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths… ”

    And I could go on and on.

    What secures our liberty is not majority will. It is the careful balancing of ambition against ambition, and the division of power against power, with the device of democratic elections and processes simply serving as a further check and balance, not the essence of our system. This is constitutional theory 101.

    It does not matter what morality or dominant culture exists in a society that elects to give its politicians an unlimited credit card they never have to repay, the unlimited concentration of power to use that credit card for anything they can imagine, and the unlimited ability to tax to create the illusion of backing for their credit card.

    These structural features will inevitably corrupt and subvert any initially limited form of government in a vicious cycle in which politicians are corrupted by power and the citizenry is corrupted by the expectation that the government will give them anything they want.

    The root cause is the foolish temptation of unlimited borrowing capacity, unlimited concentration of power and the unlimited power to tax.

    If structures like this did not matter, then you would expect the financial condition of the states to be as bad as the federal government despite 44 of them having constitutional debt limits and balanced budget requirements. The same populace is involved, after all, in the main. Well, the financial condition of the states is NOT worse. It is FAR better in nearly every case.

    For the compact approach to succeed, we need only persuade 38 of the 44 states that limit their own borrowing capacity that the federal government should do the same. We also need to persuade simple majorities of congress that their political futures best align with the constitution and the will of 38 states. We don’t have to debate the resulting policy outputs and neither do the states–and frankly nobody knows what if anything would need to be cut. Our amendment allows for a glide path to balanced budgets, and I believe if we slow spending gradually over 8 to 10 years, freeing resources from the dead hand of government, economic growth will generate enough tax revenue to avoid any significant cuts.

    • #7
    • October 23, 2015, at 2:37 PM PST
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  8. danok1 Member

    Nick,

    Thanks for the links and explanation. I did check out your website; interesting way to do this. I note that HCR 26 is in (sub)committee. I’m not as well-versed in Congressional rules and procedures as others, so I hope you don’t mind a question: I assume that if the 114th Congress does nothing further, the resolution dies in committee and must be reintroduced in the next Congress. But let’s say this Congress passes the resolution. Will that resolution be binding on the next Congress (which seems at odds with the general principle that one legislature cannot bind a future legislature), or will a new resolution be required?

    • #8
    • October 23, 2015, at 3:23 PM PST
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  9. danok1 Member

    Luke: Note the use of the word ‘shall’. The congress doesn’t have a say in whether to call for the convention upon application of 2/3 of the states.

    Luke,

    I totally agree that Congress must call the Convention once 2/3 of the states apply. That doesn’t mean they’ll do it. There are lots of things Congress must do (one of them is to actually pass a budget). They don’t always do them (see: passing a budget). Again, how do you force their hand?

    HCR 26 attempts to work around this by having an automatic trigger for the call once the Compact certifies that they have 38 states on board (at least that’s my understanding). But say the resolution dies in committee. How do you force Congress to act once the Compact has 34 states (2/3 of the several states)?

    • #9
    • October 23, 2015, at 3:35 PM PST
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  10. Nick Dranias Contributor
    Nick Dranias Post author

    danok1, HCR 26 is a continuing resolution. We believe it will continue to be effective until it is affirmatively rescinded. It does not bind future congresses because it can be rescinded. If you have any reason to think that this is in violation of a procedural rule that we have missed, please send us your legal support at [email protected].

    • #10
    • October 23, 2015, at 3:56 PM PST
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  11. danok1 Member

    Thanks for the quick reply Nick.

    I thought a continuing resolution is used for “stop-gap” appropriations and has to by signed by the President (typically used because Congress hasn’t gotten their **** together and passed regular appropriations).

    Or do you simply mean that the resolution doesn’t expire? (Told you I’m not well-versed on Congressional procedure and such.)

    • #11
    • October 23, 2015, at 4:33 PM PST
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  12. Nick Dranias Contributor
    Nick Dranias Post author

    danok1, as far as I know the term is used for both purposes. But I would love to find out otherwise.

    • #12
    • October 23, 2015, at 4:35 PM PST
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