An Amendment That Should Not Pass

By LANCE MORROW

Rick (Humphrey Bogart): How can you close me up? On what grounds?

Captain Renault (Claude Rains): I'm shocked! Shocked to find that gambling is going on here.

Croupier (handing money to Renault): Your winnings, sir. Renault (briskly): Oh. Thank you very much.

--Casablanca

The first thing one notices about the constitutional amendment is a certain discrepancy between behavior and rhetoric. The part of Captain Renault this year is being played by Ronald Reagan and the United States Congress. They are shocked to discover that budget deficits are going on in Washington. They have had recourse to a helpful old political appliance, something that might be called the Moral Dissociator. This device, a sort of reality override, is always useful in tight spots. It makes the politician disappear, and then materialize again on the other side of the room, the safer side.

The President proposes the largest budget, with the largest deficits, in American history. Then he marches up to the Capitol to stage a rally demanding a constitutional amendment that would require a balanced federal budget. "I don't feel self-conscious at all," Reagan tells a press conference. He argues the (at least partial) truths that he inherited ever growing commitments from Presidents before him and that a big tax cut might be a profitable jolt for the economy. Congress performs its own impressive feats of dissociation. The polls consistently show that between 70% and 75% of Americans favor a balanced-budget amendment. It is an election year. A majority in the Senate, possibly to be echoed in the House, proceeds along the lines of an entertaining but abject logic: STOP ME BEFORE I KILL AGAIN. The sponsors of the amendment to mandate balanced federal budgets have flocked to the Constitution, as to the Wizard of Oz, to ask for a superego, to plead for the discipline that they have been unable to enforce upon themselves. It is an evasive and unworthy and essentially political exercise. The oldest living constitution in the world should not be dragged onstage to perform in such charades. It is undignified.

Amending the U.S. Constitution usually takes years. It is rarely done. As Chief Justice John Marshall said, the Constitution should be "a superior paramount law, unchangeable by ordinary means." When one is working in marble, it is not wise to doodle, or use the chisel impulsively. But precisely because the chances of succeeding with an amendment are remote, there has always been something satisfyingly theatrical and essentially safe about proposing amendments to enshrine various panaceas, transcendent gripes, noble urges and crackpot illuminations. The process is a little like the custom of nominating obscure favorite sons at political conventions, not because they have any chance of being nominated or elected. God forbid. It is just nice to hear the name boom in the hall, to have the transient thrill, something to tell the grandchildren. The mere proposal of a constitutional amendment amounts to national billboarding for an idea, and perhaps even a way of drawing the poison out of certain issues by bringing them briefly into the hypothetical presence of the sacred text.

There have been more than 9,400 proposals to amend the Constitution. Many have been frivolous. Over the generations, Americans have pushed amendments to restore states' rights, to "recognize the authority and law of Jesus Christ," to redefine treason, to prohibit racial intermarriage, to embrace world government, to outlaw pornography. The Equal Rights Amendment has just perished, for the moment. An amendment that would permit school prayer is showing signs of life; it is supported by President Reagan, who, for a conservative, seems surprisingly eager to change the nation's basic legal text.

In one instance, the U.S. became confused about the difference between the billboard and the marble. In 1919, it ratified a disastrous amendment outlawing alcoholic drinks. Then it spent 14 years fighting over whether and when and how to repeal the error. Americans should instinctively know that amending the Constitution every time the wind shifts is a sort of decadence. It suggests a nation dipping into capital, burning its deepest ideas for firewood.

The balanced-budget amendment is still in the billboard stage, the stage at which a certain amount of cynicism and carelessness and political opportunism is expected behavior. For that reason, the debate is still somewhat unreal, as if the amendment were a harmless issue, as if it had no consequences. All over Capitol Hill one hears private talk, even from those who will vote for the thing, that of course the amendment is basically nonsense, but it just won't do in an election year to be caught voting against a balanced budget. The popular impulse propelling the amendment is strong and wide. Organized labor opposes the amendment. But otherwise those against it tend to be professionals, scholars, commentators and economic experts. A prominent exception is Conservative Milton Friedman, who hopes that the amendment will "provide for a gradual ratcheting down of Government spending as a fraction of [national] income."

Whatever the political cynicism of Congress, it is responding to an immense popular disgust with high taxes and Big Government. In recent years, a balanced-budget amendment has made its way relentlessly through the state legislatures. Thirty-one of them have called for a constitutional convention to consider it. If three more states join the movement, the first such convention in the nation's history may be called. Politicians ranging from Edward Kennedy to Barry Goldwater fear that such a convention might turn into a "devil's playground." No one knows whether the delegates could be limited to the balanced-budget amendment. They might be ominously tempted to try to remodel the entire American constitutional structure, including the Bill of Rights. Such fears do not reflect much trust in the American people, of course, but it is that prospect, among others, that has led Congress to take the budget amendment so seriously.

All this has brought the balanced-budget amendment much closer to being carved into the Constitution than it rationally ought to be. The Senate may approve the amendment this week. It will have a tougher time getting through the House. "This thing is complete bull," says an aide to a Senate leader who happens to support the amendment. "Somebody had better stop it."

Superficially, one risks being thought a perverse neo-Keynesian mandarin if one comes out against balanced budgets. It is like being against motherhood--or worse. The balanced-budget amendment stipulates that before each fiscal year, Congress shall prepare a plan in which income and outgo match. The rule may be waived in time of war. Otherwise, deficit spending is permitted only when three-fifths of both houses approve the indulgence.

The best argument for the amendment sees it as a kind of Gordian stroke through the tangled indiscipline and unaccountability of Congress. Nothing less than a constitutional amendment, say its supporters, can break the deeply ingrained habit of profligate spending. The amendment would make it easier for Congressmen to say no. It would make them clearly visible when they said yes. It would force members to think twice about what is now automatic. Thus, argue the sponsors, the amendment would change the working premise of Congress, and begin to break the cycle of profligacy that has pushed the national debt beyond $1 trillion.

Intention and means should be distinguished. There is no question that growth in Government spending must be curtailed. The question is whether this constitutional amendment would accomplish that purpose. The amendment is like proposing to stop an orgy by rolling a grenade under the door: frag the bureaucratic waterbed. It is an extreme solution, feckless and fanatic. It may be satisfying at the moment, but it involves a messy aftermath.

One of the odd notes sounding through the fiscal debate is a sort of muffled cry for vengeance. The amendment will be a terrible swift sword, a judgment at last. It will impose discipline upon a nation that has felt itself losing control in a thousand ways, control not only of its money but its morals and its neighborhoods and its place in the world. The balanced-budget amendment is a metaphorical gesture with meanings that transcend the fiscal.

But gestures are ephemeral. When the hard, working details are examined, some voters who now like the grand gesture may reflect on what that will really cost. By the most optimistic predictions, assuming a brisk and lasting economic recovery, the federal deficit will still be at least $100 billion by 1986, when the amendment might become operative. Who would suffer if that $100 billion were suddenly eliminated from Government spending or added to taxation? Revenue sharing for the states would be the first to go. Medicare and Social Security would be vulnerable. So would civilian pensions. Neither defense nor social programs would be immune.

Government should be forced to make choices about priorities, of course. But that is exactly the point. The amendment is morally inert, and as single-minded as a natural disaster: Government by earthquake.

The specific case against the amendment focuses on four main themes:

1) The Government's ability to serve as a balance wheel for the nation's economy would be crippled by the amendment. "We've been struggling to control the business cycle for 150 years, and we're finally getting better at it," says Senator Daniel Moynihan of New York. "In the 15 years ending in 1975, our per capita gross national product after inflation doubled. We were able to do it because we had the flexibility to iron out the inevitable wrinkles in the business cycle. The amendment would destroy that ability and subject us again to the feast-or-famine mercies of economic panics." Explains liberal Economist Walter Heller: "When recession cuts revenues and boosts jobless pay, the resulting deficits help restore purchasing power and promote recovery. Trying to prevent such deficits by boosting taxes and slashing budgets would simply throw the economy into a deeper tailspin."

2) Being easy to evade, the amendment may simply reduce respect for the legal system as a whole. The amendment specifies no punishment for those who violate it. Since the Government's budget-making process begins 21 months before the end of the given fiscal year, accurate forecasting is virtually impossible. Economic and budget assumptions can be doctored. All the states except one now have annual balanced-budget requirements, but they slip out of the straitjacket by capitalizing their long-term improvements, spreading the cost of bridges and highways and the like out over their useful life. The temptation to pursue such federal budgeting with mirrors would be overwhelming.

3) The amendment is not sufficiently flexible. Government is not clairvoyant. It cannot foresee the year's natural disasters, for example, and the expenses they might entail. The amendment permits deficit spending only in case of war, but ignores

the possibility that additional defense expenditures may be needed in anticipation of, or to forestall, war. Constitutional amendments, like art, should imitate life, or at least bear some working relationship to it.

4) The reason that conservatives, of all Americans, should recoil from the amendment is that it would irreparably alter the checks and balances in the Constitution. It would require Congress to cede enormous power to the courts and/or the President.

Federal Reserve Board Chairman Paul Volcker, who opposes the amendment but supports its goals, has warned Congress that the arrangement could give the President a line-item veto of the entire budget and grant him, in effect, the power to impound any federal funds he wishes. Congress would no longer be able to mandate or create new programs. In the name of balancing the budget, the President could theoretically drop entire programs without any possibility of congressional review.

Beyond that difficulty looms the immense question of who would enforce the amendment. To legal experts it is conceivable that the whole federal budget, item by item, might end up for review by the Supreme Court. Says Yale Law Professor Burke Marshall: "This would be the breeding ground for an enormous amount of litigation." Conservatives who condemn the activism of American judges should wonder whether they really want to watch the courts of the land running the appropriations process.

In the early 1980s, the prevailing thrust toward constitutional amendments (such as ones that would outlaw abortion and permit school prayer) tends to be conservative. In the 1930s, the amending impulses were apt to be liberal (proposals to set a minimum wage, for example, and even "to prohibit war"). At that time, Supreme Court Justice Willis Van Devanter spoke scornfully of "the idea that the Constitution must be amended and treated as if it were a rubber ball so that each succeeding child may play with it according to varying inclinations." The Constitution is not a ball. It is the rules of the game; it is the game itself.

Gladstone called the American Constitution "the most wonderful work ever struck off at a given time by the brain and purpose of man." The secret of its endurance has been its flexibility. However admirable its intentions, the balanced-budget amendment is a brittle, inflexible business. Its wheels are square. It is not worthy of the company it aspires to join. --By Lance Morrow

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