mere slogan.' Not dealing with either the basic structure of government or with the rights of individuals, it must be frozen into a much more particular form if it is to have any real effect. Indeed, the authors of S.J. Res. 126 seem to have had just this in mind when they sought to freeze its evolution in time by providing in Section 4 that its terms should forever "be construed in accordance with their meanings on the date on which this article was submitted to the States for ratification." The very fact that such a provision was thought necessary provides a strong clue that the resolution's authors knew they were not expressing, in the precise terms they chose, a concept basic enough to survive as a meaningful limitation on government despite the shifts in attitude and context that the passage of years and decades is bound to yield. Thus compelled to descend to specificity of a sort unlikely to prove enduring, the resolution's authors confronted the predictable choice between a balanced budget requirement so rigid as to leave the Nation helpless in economic and military crises and one so pliable as to accomplish virtually nothing. How they made that choice is instructive to examine. The provision allowing waiver during any declaration of war (Sec. 3) seems innocuous enough. And even the provision permitting adoption of an annual budget in which expenditures exceed receipts upon a three-fifths vote of each House (Sec. 1) seems a defensible way to render deliberately unbalanced budgets quite difficult to adopt without limiting such budgets to any enumerated list of anticipated crises. The real problem arises not in the option for supermajority override but in the basic design of the entire amendment, for both Section 1 and Section 2 treat "receipts" as though they were within government's control, or were at least precisely knowable by government in advance. The truth, of course, is that the government's receipts depend strongly on economic trends inherently unknowable at the time tax rates, appropriations bills, and budgets must be adopted. Consider, then, the way Section 1 would work in practice. Assuming the absence of the requisite three-fifths vote, Congress would presumably adopt a balanced budget at the appropriate stage in the planning cycle. (I say "presumably" because the mind boggles at judicial or other mechanisms for enforcing a provision of this sort; but I will let that difficulty pass.) Suppose the budget provides for expenditures in Year X of $1 trillion and receipts in Year X of $1.1 trillion. Sometime in Year X, the economy takes a nosedive-perhaps because, too faithful to the new amendment, Congress held spending in unduly tight rein the year before. Federal tax receipts plummet: what we thought would be $1.1 trillion ends up at just $900 billion. Even if some appropriation bills encompassed within the budget's projected $1 trillion have yet to be passed and signed, the final sentence 2 of Section 1 would prevent no anticipated appropriation measure from going forward as planned. After all, while those measures would cumulatively cause the expenditures in Year X to exceed the year's revenues, they would not cause "total expenditures for any year to exceed the expenditures in the budget for such year"— which is all that Section 1 commands. Nor is the use of the word "expenditures" twice in that sentence a silly accident. Had the authors meant to say "revenues" the second time around instead of "expenditures," they would surely have done so. But that wouldn't have workedsince the year's total receipts may not be known in time, and since the sudden drop in receipts, even if calculated early enough to bring Section 1 into play, would rarely if ever indicate the wisdom of an equally sudden cutback in federal expenditures a cutback that could well deepen the recession signalled by the receipt slump. 1 In contrast, no stark choice between platitude and specificity need exist in amendments dealing with basic matters of government structure or of individual rights, for even extremely general expressions of principle in those spheres-expressions whose meaning is capable of evolving with time and circumstance as needs and perceptions change and new controversies arise are worth embodying in the Constitution if we wish to make their core precepts resistant to easy political change. That liberty shall not be infringed without "due process of law," for example, states a principle general enough to capture an enduring and evolving ideal-but not so general as to be empty of genuine content. Likewise, the notion that "all powers not delegated to the national government shall be reserved to the states" was worthy of constitutionalization: its generality assures that it reflects not merely a current fad or preoccupation, and its structural character assures that it retains significant meaning despite its lack of specificity. The imponderable character of receipts similarly dooms the operation of Section 2. And that section is plagued by the further difficulty that, if an economic upturn has led to an unexpected bulge in tax collections, perhaps because people have been moved into higher brackets through genuine gains rather than merely through inflation, the stricture set forth by the section leaves entirely unclear how Congress is to avoid the impending windfall. A sudden, end-of-the-year tax cut would not be felt in time and might make no sense anyway if public sector needs had increased even faster than revenues as a proportion of the national income. Moreover, even if all were agreed that a quick tax cut were in order, and even if such a cut could be arranged to have instant effect-perhaps through reduced withholding in the final weeks or days of the year-there would remain the vexing questions of which taxes to cut, in which brackets, and through which devices: opening loopholes? reducing rates? creating new deductions, exemptions, or credits? The debate over the menu of options would be unlikely to end in time to make Section 2 meaningful-so the requisite bill would be passed by both Houses, and the section would be a dead letter. These deficiencies, and many others one could detail (budget experts know dozens of paths around language like that in S.J. Res. 126), represent something much deeper than the results of sloppy draftsmanship or poor legal and economic advice to the balanced budget proponents. The idea has been with us for too long, and has numbered too many able individuals among its supporters, to make that a plausible excuse. Instead, the deficiencies seem to me endemic to the very idea of achieving as complex and particularistic a goal as sound fiscal balance through a statement of constitutional principle. Forced by the nature of their enterprise into a level of constitutional specificity that would be appropriate only to housekeeping provisions whose detail is innocuous (shall we require that the President be 35 or 38? who cares?), the authors of S.J. Res. 126 have provided a formula with no real chance of achieving its aims. If the loopholes described here were tightened, others would surely be insisted upon, if not in the drafting stage then at the time the provision was applied-lest we end up with a prescription for virtually economic disaster. But it would be profoundly wrong to conclude that the provision would be harmless simply because it would be ineffectual. However construed, it would add much futile controversy-and, ultimately, much corrosive cynicism-to our already over-crowded judicial and political agendas. And, beyond that, it would cheapen the document it is supposedly being offered to perfect. For each time the Constitution is cluttered with language that either promises much but makes no difference, or makes a difference so contingent on time and context that it must soon be repealed or loopholed to death, we diminish the value and integrity of the Constitution itself. Sincerely, LAURENCE H. TRIBE, [Excerpt from Pacific Law Journal, vol. 10, p. 629-1979/balanced budget amendment by Laurence H. Tribe 1] * * * [U]nlike the ideals embodied in our Constitution, fiscal austerityhowever sound as a current goal-speaks neither to the structure of government nor to the rights of the people. The language of the Constitution expressing the values that infuse the structures of our fundamental rights is majestic in its force and simplicity. By contrast, the goal of a balanced budget would have to be couched either in such flexible and general terms as to be meaninglessly lax or in such rigid terms as to be unthinkably harsh. Consider, for example, what it would mean if the Constitution currently required a balanced federal budget. The implications of such a mandate for national security, for vital domestic programs, for economic growth, and for the burdens of federal taxation are staggering to contemplate. To avoid truly dis astrous consequences, surely the mandate would have to incorporate loopholes large enough to drive the federal budget through—which would defeat the very 1 Professor of Law, Harvard University. Professor Tribe is the author of the leading modern treatise an federal constitutional law. American Constitutional Law (Foundation Press, Mineola, N. Y., 1978). purpose of an amendment. This very fact underscores the folly of engraving fiscal austerity in the Constitution, of freezing a balanced budget into our fundamental law." Experience, no less than intuition, counsels against the incorporation of particular social or economic programs into the Constitution-even assuming that a balanced budget policy could be expressed in terms that would make sense in that document. Slavery is the only economic arrangement our Constitution has ever specifically endorsed, and prohibition the only social policy it has ever expressly sought to implement. It demeaned our Constitution to embrace slavery and prohibition not only because one was evil and the other intolerant, but also because neither arrangement expressed the sorts of broad and enduring ideals to which the Constitution and the country can be committed-not just over a decade or two, but for centuries. The goal of fiscal austerity expresses no such ideals notwithstanding its immediate popular appeal or the long-term soundness of at least some of its premises. Because the Constitution is meant to express fundamental law rather than particular policies, it should be amended only to modify fundamental law-not to accomplish policy goals. Thus Madison described the amendment process not as a mere alternative to the legislative mode, but as a means of correcting the. "discovered faults" and "errors" in the Constitution. That was plainly true of the first fifteen amendments. And, of the eleven amendments ratified since Reconstruction, all but two have served the purpose envisioned by Madison. Five have extended the franchise, three have involved presidential eligibility and succession, and one-permitting a federal income tax-gave to the federal government a power previously held unconstitutional by the Surpeme Court. Of the two exceptional amendments, one attempted to enact a social policy-prohibition. The other amendment repealed the first. Thus a balanced budget amendment would be an anomaly not only in view of the Constitution's mission, but also in light of its history. B. THE AMENDMENT PROCESS SHOULD NOT BE USED TO ACHIEVE AIMS THAT MAY BE BETTER REALIZED THROUGH CONGRESSIONAL OR EXECUTIVE ACTION Even prohibition was a more appropriate subject for the amendment process than a balanced budget would be. For unlike fiscal policy, which lies at the heart of the congressional mandate, temperance could not be legislated for the nation by Congress without express constitutional authorization. A balanced budget amendment would therefore be objectionable not only because it would transform a specific economic policy into fundamental law, but also because there is no need to amend the Constitution to make the pursuit of that policy the law of the land. Legislation has in fact been introduced in the last three Congresses promoting the objectives of the balanced budget amendment, and a tide of similar proposals is already surging into the session that has just opened. President Carter has worked to serve the objectives of fiscal restraint as well-and he has stressed to the public his continuing commitment to them. The people of California have already sent a message to Washington that has not been ignored and will not go unheeded. But the proper response to that message is not a constitutional amendment-fiscal policy is simply too complex to execute through the sorts of generalities that belong in a constitution. Fiscal policy involves the sorts of nuances and distinctions that can best be expressed in statutes, regulations, and executive programs. Needlessly amending the Constitution injures our political system at its core. If the amendment device is transformed into a fuzzy substitute for the more focused legislative process, not only will the lawmaking function of Congress be eroded, but the Constitution itself will lose its unique significance as the ultimate expression of fundamental and enduring national values. By demanding, instead, that their representatives in Congress press for responsible fiscal policy while resisting the abuse of the amendment device threatened by the current convention campaign, the people of California will visibly serve the national interest in a sound economy, and help prevent the Constitution's devaluation. ? For contrary views see, e.g., "Brown Stresses Conservatism in Inaugural." N.Y. Times, Jan. 10, 1979, SA, at 10, col. 3 (calling for California to become next state to apply for balanced budget convention). "Friedman Urges Amendment to Set a Limit on Government Spending." N.Y. Times, Oct. 25, 1976, at 44, col. 6. The Federalist No. 43, at 296 (Madison) (J. Cooke ed. 1961). To be sure, the devaluation of the Constitution would not occur overnight. In fact, until the Constitution had been effectively reduced to a shifting package of legislative commitments, each policy enshrined as an amendment would bind the government far more tightly than ordinary law. Obviously the proponents of the balanced budget amendment desire this very result, but responsible opinion must resist any such constitutional straitjacket for the nation. În few areas are flexibility and rapid responsiveness to changing circumstances more vital than in the realms of fiscal and monetary policy. For just this reason, even those sympathetic to the goals of a balanced budget amendment have warned that such an amendment would be a "blunt weapon" that "would be flawed with a certain troubling rigidity" if ratified. Thus, so long as the Constitution is not made easier to alter than it ever has been or should ever become, it will remain the least appropriate instrument for American economic policy. PART 4.-NEWSPAPER And MagazinE ARTICLES [From the Los Angeles Times, Jan. 12, 1979] MEAT-AX APPROACH-U.S. BUDGET CHIEF ASSAILS BROWN'S NO-DEFICIT PLAN WASHINGTON.-A top official of the Carter Administration Thursday criticized as unnecessary and unworkable California Gov. Brown's plan for a constitutional amendment to balance the federal budget. When asked about Brown's suggestion, James T. McIntyre Jr., director of the Office of Management and Budget, told reporters: "You can't take a meat-ax approach to the budget. It would be unwise to take precipitous action that would have a bad effect on the economy." The best way to control the deficit, McIntyre added, is to slow the rise in federal spending, as President Carter is attempting to do. "There is no way to write a constitutional amendment-particularly through a constitutional convention that would be totally effective (in balancing the budget) and still allow the flexibility which the government needs to combat recession, meet security needs and provide economic stability," McIntyre said. 'It's impossible." "I am personally concerned about proposals for a constitutional convention," McIntyre added. "By the time you go through the cumbersome process involved, we expect to have the budget balanced." McIntyre said the Administration was "definitely on the road" to reaching Carter's goal of a balanced federal budget, although a deficit of $29 billion is expected for the fiscal year starting Oct. 1. Brown said this week that Congress should adopt a constitutional amendment to balance the federal budget every year. If Congress refuses to do so, he said, the states should take action to hold a constitutional convention to adopt such an amendment. Meanwhile, Chairman Edmund S. Muskie (D-Me.) of the Senate Budget Committee said a requirement for a balanced federal budget "may not only be unwise but may be impossible." The budget, Muskie said, should be used as an economic tool rather than be subject to rigid rules regarding the matching of spending and revenues. Senate Democratic leader Robert C. Byrd (D-W.Va.) agreed with Muskie, saying the Brown-backed amendment "could be restrictive in keeping our defense system modernized and adequate to meet emergencies." [From the Washington Post, Jan. 14, 1979] STATES SAY THEY CAN'T ABSORB DEEP CUTS IN FEDERAL FUNDING The nation's governors served notice yesterday that states cannot absorb severe cuts in federal spending without either reducing services or increasing taxesor both. ♦ Editorial. "The New Federalism." Wall Street J., Jan. 10, 1979, at 22, col. 1. Projections made by the National Governors' Association and the National Association of State Budget Officers show that unobligated balances in state budgets at the end of the 1979 fiscal year will be about $4.3 billion or 3.6 percent of expenditures. This is the smallest surplus since the survey began in 1974 and compares to the 5 to 7 percent surplus which states try to build into their budgets as a hedge against economic fluctuation and unanticipated expenses. Gov. Richard Snelling of Vermont, chairman of the NGA's Committee on Executive Management and Fiscal Affairs, said the figures indicate the states do not have the capacity to make up for heavy cuts in federal spending planned by the Carter administration. President Carter submits his fiscal 1980 budget to Congress on Jan. 22. State and local officials have claimed that the budget will cost them as much as $10 billion. Unlike the federal government, which has run a budget deficit for most of the last 25 years, most states are legally forbidden to incur debt in their operating budgets. Therefore, a surplus is built into state budgets as a safety valve. Severe reductions in this surplus almost surely would force a reduction in services or increased taxes, or both, the governors contend, adding that under the worst circumstances, a state could be bankrupted. For example, their report said, an error of 3 percent in estimating the revenue a state with a $1 billion budget will get during the coming year could cause a revenue shortfall of $30 million. [From the Washington Post, Jan. 14, 1979] THE BALANCED-BUDGET DRIVE: BUILT ON ILLUSIONS THE CONSTITUTIONAL AMENDMENT ENDORSED BY CALIFORNIA'S GOVERMENT BROWN PROMISES MUCH BUT WOULD DO LITTLE (By John M. Berry 1) Twenty-two States have already done it. Now California's Democratic Gov. Jerry Brown has joined the pack. Republic Sen. Richard J. Lugar on Friday urged the Indiana legislature to sign on, and Democratic Gov. James Hunt will make a pitch for it tomorrow in North Carolina. All are getting behind a movement urging Congress to call a constitutional convention to pass an amendment requiring a balanced federal budget. The balanced-budget movement, begun in Maryland, Mississippi and North Dakota four years ago, in short, is starting to be taken seriously. There is only one problem: It shouldn't be. At least not in practical terms. The movement certainly has symbolic effect, sending one more message to Washington-as if one more were needed that voters are deeply concerned about inflation. But as for the prospects of the rigid, would-be budget balancers making a significant difference in the nation's economic well-being, don't count on it. Even if the required 34 states were to pass a constitution-convention resolution, that wouldn't guarantee that a budget-balance amendment would emerge or, some suggest, that Congress would have to call a constitutional convention at all. Even if a constitutional amendment requiring a balanced budget were adopted and later ratified by the states in who knows how many years, that wouldn't necessarily mean any great change in federal spending or taxing. On the contrary, what it most likely would result in are numerous legalistic evasions, including a redefinition of what a "balanced budget" is. In fact, by most state accounting standards, Washington's budget-right now-is already close to "balance." Finally, even if there were significant spending or tax changes as a result of such an amendment, that wouldn't mean voters' economic pains if they are still feeling them by then-would be eased. The movement, in other words, is built largely on illusions. Consider what might result if a constitutional amendment requiring a balanced federal budget ultimately came to pass. To begin with, even many of its backers, including the National Taxpayers Union, which has been loosely coordinating the nationwide effort, acknowledge that Congress would have to have one clear out: It could declare an "emergency" by a two-thirds or a three-fourths vote and 1 Berry is an economic reporter for The Washington Post. |