5. A constitutional amendment will shift ultimate budget-making authority from the legislative and executive branches to the judiciary. Since the courts are the final arbiters of the Constitution, the judiciary, which now plays little or no role in raising taxes and allocating revenues-and is not equipped to do either-will invariably be thrust deeply into the budgetary process if required to enforce an amendment in the face of congressional failure to comply, use of accounting sleights-of-hand, or a sudden downturn in the economy causing revenues to fall.

Further, opponents argue, such an amendment raises the possibility of hundreds of lawsuits throughout the country being filed every year challenging each federal expenditure or appropriation on constitutional grounds. Even if such lawsuits and the prospects of disastrous confrontations between the Supreme Court and Congress or the President can be avoided,29 the very exercise of judicial authority in the budgetary process will gravely undermine the congressional law-making function and could cause the erosion of respect for the judicial process.

6. This is not a proper subject for a constitutional amendment. The Constitution, opponents argue, establishes the basic structure of our government and gurantees fundamental rights to the people. It has not been and should not be amended to endorse a particular economic theory or program. A budget-balancing amendment, opponents argue, would be like the condonation of slavery in the original constitution or the short-lived prohibition amendment. It does not express the type of "broad and enduring ideals" to which the country can be forever committed. Its inclusion in the Constitution would only demean that document.30

7. The same result can be achieved through legislation. Opponents argue that since the budget is entirely within the control of Congress and the President, those two branches now have all the authority they need to enact legislation requiring a balanced budget or limiting federal spending. Such legislation can be more precisely drawn than a constitutional amendment to take into account the nuances and distinctions inherent in the budgetary process.31 Opponents reject the argument that members of Congress are fiscally irresponsible. They note that Congress recently overhauled its budget-making procedures and each year is required to set a ceiling on appropriations32 As a result, opponents say, Congress is taking its budget responsibilities seriously and shows a willingness to curtail spending.33 Finally, opponents argue, if the present Congress and President cannot balance the budget, the most appropriate remedy is to elect others who can.

IV. THE COMMITTEE'S RECOMMENDATION

The Committee does not express any opinion on whether the federal budget should be balanced or federal spending limited. Nor can we express any opinion on the likely economic effects of pursuing such a fiscal policy. We note with concern, however, that the economic impact of the proposed constitutional amendments is by no means certain. The potential economic effects are hotly disputed by economists and politicians; there is no clear con

sensus, no common interpretation, no uniform view. This is an area where reasonable people can and do disagree. But as Justice Holmes cautioned nearly seventy-five years ago, dissenting in Lochner v. New York, the "Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire." 34 Economic policies are best left to the legislative and political process created by the Constitution itself, where the majority is enabled and expected to enact its consensus into law and to alter the law when the majority view changes.

More significantly, adoption of any of the proposed amendments would effect a fundamental-and in our view unwarranted-change in the character of the Constitution. The proposed amendments are unlike any other existing amendments both in form and in substance. Of the twenty-six amendments ratified since 1789, twelve protect the rights of individuals: amendments 1-10 (the Bill of Rights), 13 (prohibiting slavery) and 14 (prohibiting state infringement of due process and equal protection). Five amendments extend the right to vote: 15 (race), 19 (sex), 23 (District of Columbia residents), 24 (poll tax), and 26 (eighteen-year olds). Seven amendments, and a section of the 14th amendment, deal with the structure of government: 11 (judicial power), 12 (electoral college), 14 (counting former slaves in apportionment of House),35 16 (income tax), 17 (popular election of Senators), 20 (fixing dates of congressional sessions and presidential inaugurations; presidential succession), 22 (limiting presidential tenure), and 25 (presidential disability and succession).

This history shows that the amendment process has been sparingly used, almost always in order to correct what Madison called "discovered faults" 36 in the original governmental structure or to protect against governmental infringement of fundamental rights. The amendments, like the original Constitution, have carefully avoided endorsing specific programs or imposing restraints upon the government's freedom to act beyond the minimum necessary to protect individual liberty and preserve a federal system.37

The only exceptions to this pattern are the 18th and 21st amendments, imposing and then repealing prohibition. The proposed budget amendments are more like the prohibition amendments than any other. Although they do not seek to achieve the same purposes, they are alike in that they do not state fundamental principles to which we firmly and irrevocably commit ourselves as a nation; nor do they correct errors in the constitutional structure of government or safeguard individual rights. Like the prohibition amendment, the proposed budget-balancing amendments reflect much less basic and more transitory concerns which, however popular they may now be, do not, in our view, warrant elevation to permanent constitutional status. The practical and policy issues raised by the amendments are best left to the political arena. The appropriate remedy for dealing with a spendthrift Congress is not a constitutional amendment, but the election of more frugal Congressmen. Moreover, the proposed drafts are either so broad as to pose the difficult problems of implementation, interpretation and enforcement previously discussed, or so lengthy and full of technical jargon as to be wholly inconsistent

with the rest of the Constitution.38 Any such amendment is likely to result annually in a host of recurring lawsuits challenging particular federal expenditures or appropriations. Judges, even those on the Supreme Court, are poorly equipped to decide such questions as what the tax rate should be or which government program should be cut in order to balance the budget in the face of congressional or presidential inability or unwillingness to do so. Judicial involvement in such controversies-the only apparent means of enforcing such an amendment-would radically alter the present division of responsibility and power among the three branches of government and inevitably weaken both the courts and the Congress.

The override or exception provisions of the proposed amendments are themselves unique and pose difficult constitutional problems. At present, no provision of the Constitution requires a three-quarters vote of Congress.39 A constitutional requirement of two-thirds of either house of Congress is rare and applies only to votes affecting the basic separation of powers among the three branches of government: to override presidential vetos (Art. I, Sec. 7), to convict following an impeachment (Art. I, Sec. 3), to expel a congressman or senator (Art. II, Sec. 2), to propose constitutional amendments (Art. V), and to resolve disputes over presidential disability (25th Amend.).40 In all other matters, a simple majority suffices.

The proposed amendments would effectively undo this principle of majority rule. Under most of the proposals, if the government were already spending to the constitutional limit, war, military or other emergencies of any sort, -indeed, any new government activity needing major additional expenditures-would require a two-thirds or even a three-fourths vote of the Congress. The potential for government chaos or for a tyranny of the minority defeating any controversial or new project would be immense.

In sum, the "blunt weapon"41 of a constitutional amendment is a wholly inappropriate means of solving the complex, uncertain and ever-changing economic problems which confront our nation. Today's panacea, if elevated to constitutional status, is likely to become tomorrow's problem. As Alexander Hamilton cautioned nearly two hundred years ago:

...

"Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages . Nothing, therefore, can be more fallacious than to infer the extent of any power proper to be lodged in the national government from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, so it is impossible safely to limit that capacity." 42

The Constitution has retained its effectiveness as our national charter because we have generally followed Hamilton's advice. The proposed budget-balancing amendments do just the opposite: they would attempt to limit the illimitable and restrict the federal government's capacity to devise new solutions to as yet unforeseen problems.

For these reasons, the Committee opposes a constitutional amendment as the method of balancing the federal budget or limiting federal spending.

1 The exact number depends upon who is counting. The National Taxpayers Union, a leading proponent of the constitutional convention approach, claims go states, N.Y. Times, Apr. 28, 1979, at 20, col. 1. Thirty-four states must petition Congress in order for a convention to be convened under Article V of the Constitution. For a detailed discussion of the procedural questions raised by a constitutional convention, see ABA Special Constitutional Convention Study Committee, Amendment of the Constitution by the Convention Method Under Article V (1974) and Committee on Federal Legislation, Proposed Procedures for Federal Constitutional Conventions (S. 215), 27 RECORD of N.Y.C.B.A. 327 (1972).

2 See, e.g., President Fighting Budget Convention, N.Y. Times, Mar. 21, 1979, at A1, col. 6; Time, Feb. 19, 1979, at 18–21; Congress Seeks Handle on Spending Restraint Issue, CONG. Q., Feb. 17, 1979, at 267–70.

3 An excellent brief history of state resolutions calling for a constitutional convention can be found in B. Prager and G. Milmoe, "Article V Applications Submitted Since 1789," which appears as Appendix B to ABA Special Constitutional Convention Study Committee, supra n.1, at 59–77 (hereinafter cited as Prager). 4 Prager at 73.

5 Prager at 68-69.

6 Group Wants to Balance Nation's Checkbook, Cong. Q., Feb. 17, 1979, at 277-79. 7 TIME, Feb. 19, 1979, at 18, 21. Some fifty proposals are described (and criticized) in Memorandum from J. Scheu and L. Shuster to Sen. Muskie, Mar. 1, 1979, which is printed at 125 Cong. Rec. S2443-45 (daily ed. Mar. 8, 1979).

8 The proposals are cited by their numbers in the current session of Congress (96th Cong., 1st Sess.).

By contrast, a declaration of war under Article I, Section 8 of the Constitution requires only a simple majority of Congress.

10 The amendment provides two ways to secure the concurrence of the President: the recommendation by the President in a "special message to Congress" of a "con

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current resolution" declaring a national emergency, or the passage by Congress of a “joint resolution" which requires Presidential approval.

11 S.J. Res. 56 is a revised version of a proposal developed by the National Tax Limitation Committee, of which Dr. Friedman is a principal member. The full text of the original proposal is printed at 125 CONG. REC. S975 (Feb. 1, 1979). See, A Tax Group Urges Amendment Linking Spending to GNP Gain, N.Y. Times, Jan. 31, 1979 at A12, col. 2-3.

12 Under the original Friedman proposal, supra n. 11, three-fourths of Congress could not change the total spending limitation (which, in effect, is to amend section 1 of the amendment) without approval of a majority of state legislatures. The original proposal also contained a provision to govern judicial enforcement. Its section 7 would have limited standing to members of Congress suing in the District of Columbia federal district court. The only permissible defendant would have been the Treasurer of the United States who would be given authority over all government spending if necessary to enforce a court order. The court, however, could "not specify the particular outlays to be made or reduced.” Compliance with any court order had to occur within three fiscal years. 125 CONG. REC. S975 (daily ed. Feb. 1, 1979).

13 The Committee expresses no opinion on the economic arguments for or against the proposed amendments; they are included herein in order to present a complete picture. The economic arguments in favor of a constitutional amendment are summarized in an August 1978 Report of Committee to Investigate a Balanced Federal Budget of the Democratic Research Organization (DRO) which is printed at 124 CONG. REC. H8802–10 (daily ed. Aug. 16, 1978) (hereinafter cited as DRO Report). 14 DRO Report at H8807-08; N. Jacoby, Why the Federal Constitution Should Require a Balanced Budget (undated paper available from the National Taxpayers Union).

15 DRO Report at H8805.

16 125 CONG. REC. S975 (daily ed. Feb. 1, 1979) (remarks of Sen. Heinz).

17 For a description of the effects of a spending limitation amendment on the size of the federal budget, see 125 CONG. REC. S4037-40 (daily ed. Apr. 5, 1979) (remarks of Sen. Heinz and Stone). See also Wicker, Brown v. Budget, N.Y. Times, Apr. 10, 1979, at A19, col. 5-6.

18 Davidson, Requiring a Balanced Budget, Wash. Post, Mar. 6, 1979 at A19, col. 1-3; N. Jacoby, supra n.13.

19 Budget Receipts and Outlays, 1957–80, Cong. Q., Feb. 17, 1979 at 272; Roberts, Congress and the Budget, N.Y. Times, Apr. 26, 1979, at B10, col. 1-2; Senate Defeats Attempt To Balance U.S. Budget, N.Y. Times, Apr. 25, 1979, at A24, col. 1.

20 The economic arguments against a constitutional amendment are summarized in a Congressional Research Service report, Constitutional Limitations on the Budget, which appears at 125 Cong. Rec. S2445–51 (daily ed. Mar. 8, 1979) (hereinafter cited as CRS Report). See also Silk, A Budget Amendment Could Be the Wrong Easy Answer, N.Y. Times, Mar. 11, 1979, § 4, p. 4, col. 1-3; Anderson, The Budget and the Constitution: The Historical Experience, Wash. Post, Feb. 12, 1979, at A19, col. 1-4.

21 JOINT ECONOMIC COMMITTEE, Studies in Fiscal Policy: The Economic Impact of Alternative Fiscal Policies, 94th Cong., 2d Sess. at 18 (Comm. Print 1976).

22 CRS Report at S2447-48.

23 CRS Report at 2449; Surrey, Federal Income Tax Reform, The Varied Approaches Necessary to Replace Tax Expenditures with Direct Governmental Assistance, 84 HARV. L. Rev. 352 (1970).

24 CRS Report at S2448.