THE FIVE TESTS FOR A CONSTITUTIONAL AMENDMENT
Every proposed constitutional amendment should pass five analytical tests:
1. The Suitability Test: Is the proposal suitable for inclusion in the Constitution?
This test is not about the substance or merits of a proposed constitutional amendment, but whether it raises the broader concern of James Madison in Federalist No. 49 that frequent constitutional changes would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.” For Madison, the amendment process was best reserved for “certain great and extraordinary occasions.” Determining when a “great and extraordinary occasion” has arisen requires us to ask (1) whether the problem will remain important to future generations rather than of immediate concern to the generation seeking its adoption; (2) whether the proposal seeks to achieve a particular policy or partisan result instead of (i) addressing a systemic or structural problem or (ii) expanding individual political or civil rights; and (3) whether the problem can, as a practical or legal matter, be addressed by statutory, executive, or other (non-constitutional) means. The paradigm example of a constitutional amendment that failed the suitability test is the 18th Amendment, which sought to impose alcohol prohibition on a nation caught up in the fervor of “progressive” reform. (Although to be fair, the advocates of alcohol prohibition at least recognized that such prohibition required a constitutional amendment, unlike the drug prohibitionists of today.)
2. The Policy Test: Is the proposal good policy?
This test is about the proposal’s substance or merits. The suitability test will eliminate most proposed amendments, but assuming that the problem being addressed is serious enough to quality as a “great and extraordinary occasion”, is the proposal itself the best solution for actually solving (or at least diminishing) the problem? Answering this question requires us to ask searchingly what result we are trying to achieve and whether this result is consonant with the moral and political values that we want to see prevail. It is also a matter of judgment as to the costs of success, for we must never forget the law of unintended consequences should we actually achieve the result we are seeking. Again the 18th Amendment is a cautionary tale. Attempts to restrict the rights of our fellow citizens are almost always misguided, but when they lead so directly to massive crime and corruption, no benefit from such a proposed amendment can justify its ratification.
3. The Enforcement Test: Is the proposal self-executing or otherwise enforceable?
This is the test that is most often overlooked or intentionally ignored. Some amendments are indeed self-executing, such as the 22nd (presidential term limits), or readily enforceable by the courts, such as the 24th (no poll taxes). But Members of Congress often propose or co-sponsor amendments for their symbolic value to buttress their political standing or insulate them from political pressure, knowing full well that the amendment cannot or will not be enforced if ever ratified. Here the paradigm is the so-called Balanced Budget Amendment (BBA) that has been periodically approved by the House of Representatives and which in March 1995 failed by a single vote in the Senate. For decades I have been waiting for BBA supporters to explain how it would be enforced, but the only responses that they have ever given are (1) “fidelity to the Constitution” (i.e. Members of Congress will only pass balanced budgets because they swear an oath to the Constitution) and (2) super-majority voting to raise the debt ceiling. Leaving aside the various loopholes in the BBA for war, national security, and 3/5th majorities, fidelity to a constitutional oath is not self-executing. The more likely scenario is that lawmakers will claim to have honored their oaths by voting against spending which they personally oppose, yet fail to reach an overall consensus on legislation that actually balances the budget. As for using the debt ceiling to enforce fiscal discipline, we were reminded how vacuous this idea was last summer when Congress raised the debt ceiling for the 75th time since March 1962 (Congressional Research Service Report RL31967, April 5, 2011).
4. The Drafting Test: Has the proposal been properly drafted to achieve its policy goals?
This is perhaps the trickiest test to apply and meet because it not only has a practical component but an aesthetic one as well. A constitutional amendment must accomplish the intended goal in language that is as clear, simple, and direct as possible, but without opening the door to judicial reinterpretations that twist the original meaning so as to gut the amendment in whole or in part. We have still not recovered from the 1873 Slaughterhouse Cases that effectively rewrote the Privileges or Immunities Clause to make it a dead letter in all but a few uncontroversial instances of federal or national citizenship. Drafters can seek to protect themselves from subsequent “judicial amendments” with detailed provisions, but this can result in wording akin to the prolixity of the tax code. Even then there is no guarantee that the original meaning will be honored. The framers of the P&I Clause could never list all of our “privileges or immunities”, any more than the framers of the 9th Amendment could list all of our unenumerated rights. There is also the problem of language changing or simply being forgotten over time. This concern can sometimes be addressed by adding specifically defined terms to an amendment, but if a court is determined to achieve a certain result, there is very little that can be done, at least in the short term. Just ask Chief Justice Roberts what a “tax” (or “direct tax”) is for constitutional purposes.
5. The Political Test: Is the proposal politically viable?
Lastly, it is important to remember that proposed amendments must achieve deep and widespread political support to run the proposal and ratification gauntlet under Article V of the Constitution. The proposal must therefore have the potential for political viability, which in turn means that it must eventually gain bipartisan support. To be sure, many of our greatest constitutional provisions were not seen as politically viable when first proposed. The Civil War Amendments (13th, 14th, and 15th) required, well, a civil war, and the 19th Amendment required decades of political activism to achieve women’s suffrage. Still, most of us have limited time and energy, so it is best to focus on proposals that are serious and significant, yet do not favor any political party or which are so ideologically motivated as to ensure failure. One of my favorite proposals would change Tax Day from April 15 to the first Monday in November, but this should not be the focus of one’s Article V efforts given the enormity of our fiscal problems and the need to make spending restraint by the federal government our first priority.
It is time for an amendment which holds the congress financially responsible for their irresponsibility and, at the same time, holds the government responsible for the fiscal condition of the nation.
A Constitutional Amendment which precludes anyone in congress from collecting a paycheck unless and until there is a balanced budget submitted to the president for signature or veto.
Here’s my proposal:
AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA REQUIRING CONGRESS TO PRESENT A BALANCED BUDGET BILL TO THE PRESIDENT BY SEPTEMBER 30, OF EACH CALENDAR YEAR, AND WITHHOLDING ALL CONGRESSIONAL COMPENSATION IN THE EVENT OF FAILURE THEREOF.
(a) Congress shall by the 30th of September of each calendar year, annually, pass and deliver to the President for signature and enactment into law, a balanced budget bill which shall limit the approved expenditures, appropriations, obligations, debts and liabilities of the United States of America as backed by the full faith and credit thereof, for the next fiscal year, to an amount less than or equal to, but in no event greater than the projected revenues to be collected by the Treasury Department in the fiscal year for which such budget shall be applicable. The projected revenues shall not exceed by more than three (3) percent the total revenues collected by the Department of the Treasury for the fiscal year immediately preceding the proposed balanced budget. In the event that the actual revenues received by the Treasury Department does not meet the projected revenues upon which the budget is premised, then and in that event each item provided for in the budget shall be reduced in equal proportions to the percentage of revenue shortfall. Congress shall enact no tax, nor increase any existing tax in order to effectuate the balancing of the budget.
(b) No member of congress, whether as a Member of the House of Representatives or the Senate of the United States shall receive any salary, compensation, payment or reimbursement, loan, or any government funds whatsoever as compensation or consideration for services rendered as an elected member of Congress, from and after October 1 of any calendar year in which the Congress has failed to deliver to the President a balanced budget as provided for under paragraph (a) hereof until such balanced budget is provided to the President and all such salary, compensation, and remuneration so withheld shall be deemed forever forfeited and shall not be reimbursed to such Members of the House of Representatives and/or The Senate of the United States.
(c) The President of the United States shall have the right and power to exercise a line item veto of any portion of any balanced budget bill submitted to the President as provided for under paragraph (a) hereof, provided however, that the President shall not exercise such line item veto in any way which results in an unbalanced budget in which the expenditures of the United States, backed by the full faith and credit thereof, may exceed the projected revenues as provided for under paragraph (a) hereof.
Your comments are invited
Bob, I find merit in your proposal but am not a lawyer and find it somewhat hard to follow. But, I do follow your meaning. I have been trying to think of a way to amend the constitution that would that would find favor with all persuasions of thought. I do not have the ability to write the details of what I will call the DIRECT DEMOCRACY AMENDMENT – all I can do is propose a framework. I would like your feedback of my post. Thanks, Greg
http://contitutionalamendment.com
Sorry Bob, I gave you the wrong domain address. This should work.
http://contitutionalconvention.com
I am taken aback with your knowledge and writing abilities. I just started a blog calling for a constitutional convention. I thought my domain was constitutionalconvention.com but instead it is contitutionalconvention.com without the (s). I just read your THE FIVE TESTS FOR A CONSTITUTIONAL AMENDMENT and would very much appreciate it if you would look at my post to see if would pass the FIVE TESTS. I am going to be a follower of your blog. I am not a writer or doer – just a dreamer. If I can share my dream with enough people, maybe someone will make my dream come true. In reference to the ENFORCEMENT TEST: I would not be confident of a bill passed by the House and Senate. I believe there would be a poison-pill in the wording to weaken the intent of this amendment. I look forward to your future posts. Greg