This Amendment Would Be Constitutional Graffiti

Amending the Constitution is something Americans are loath to do; only 27 amendments have been ratified in the past 200-plus years. Now Congress is considering a 28th: a balanced budget amendment. While the Senate’s vote will not be taken until the April at the earliest, and the amendment’s passage is not a sure thing, we should consider carefully the possible consequences of adopting it.

Of all the issues that have arisen in the debate over the amendment, there is one that looms but is ignored: What will be the remedy for a violation of the amendment?

Consider the following scenario: The amendment is passed and ratified by the states. A few years hence, the nation experiences a severe economic downturn. In typical fashion, the federal government feels that it must do something. It decides to pass a series of deficit-spending measures in hopes of stimulating the economy, but in doing so it violates the amendment. A member of Congress goes to court (it is unclear whether a taxpayer would have standing to sue) to seek enforcement.

The unlucky federal judge in whose court the suit is brought is faced with a number of equally unpalatable choices. Does she enjoin Congress from implementing its legislation? Does she order across-the-board budget cuts to bring the budget into compliance with the amendment? Such judicial involvement in the setting of budgetary priorities certainly raises separation of powers questions and seems to strain the institutional competence of the judiciary. However, she could do nothing by declaring the matter a “political question,” leaving it to the other branches of government to settle.

If our hypothetical judge chooses the latter course of least resistance, we should ask ourselves: What good is the amendment? Congress’ message to the electorate with the amendment’s proposal is “Stop us before we spend again.” Yet without any real enforcement mechanism, the amendment is little more than an exercise in constitutional graffiti.

Congress gets credit for sending the amendment to the states, secure in the knowledge that its members will never really have to make hard choices. If times are tough, they can just declare an emergency and ignore the Constitution. Such a cavalier attitude does nothing to sustain respect for the Constitution’s other provisions.

If we really want a balanced budget (and the attendant tough choices that accompany it), then it is our duty to elect members of Congress who will pledge to take responsibility for those choices.