Should the Constitution Be Amended?

If so, how?

Over at Law and Liberty, federalism expert Michael Greve proposes two constitutional amendments aimed at reining in out-of-control government in a firm but not-too-rigid way. I like both.

Greve’s first proposed amendment would create a “deficit tax.” Uncle Sam would be required to send each American a bill automatically each year for his or her share of the annual federal deficit. Imagine the family conversations when those bills start arriving.

Greve’s other proposed amendment would cap federal transfer payments to state and local governments (and their various chartered corporations, government-sponsored enterprises, etc.) at 3 percent of total federal outlays. That would help control the problem of tax money being raised by one set of politicians (the feds) and handed out by another set (the states), which merely whets the electorate’s appetite for more government than it is willing to pay for in taxes.

Both amendments would be a help in terms of limiting public debt and forcing voters to prioritize. Unfortunately, they wouldn’t do much to address rogue courts or lawmakers who simply ignore the Constitution. But they’d be a start. I’d take either or both.

My one nit: neither includes an enforcement mechanism, which would seem to be a pretty big oversight in this age of rogue government. But then again, Greve does make a pretty persuasive case for keeping amendments short and sweet.

But all of this presupposes the answer to a more important and in some ways more interesting question, namely: Do we really need to amend the Constitution?

Greve attended a panel discussion last week, hosted by constitutional law professor Michael McConnell, the title of which asked that very question: “Should the Constitution Be Amended?”

From Greve’s account, it sounds as if most if not all of the gathered experts agreed that it should. But how? A bunch of ideas were thrown out. Greve reports:

A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution … Others sought to make the republic yet more ‘democratic’ …

Mercifully, all but one of the 30 or so proposed amendments went down in an impromptu straw poll. The lone proposal to garner a two-thirds majority was the actual Equal Rights Amendment that cratered back when. …

Note: The Supreme Court has effectively ratified the ERA already, through judicial precedents.

Greve continues:

In his characteristically gracious closing remarks, Michael McConnell noted the incongruity: for all the present discontent with the state of James Madison’s state there doesn’t seem to be a lot of enthusiasm for any particular amendment.

Why is that? Greve suggests, and I agree, that it’s because we don’t agree on what ails us. It’s hard to settle on a solution when you haven’t agreed on the problem.

And maybe that’s not a bad thing? Maybe we should just follow the Constitution instead of amending it? Greve jokes, “The Constitution isn’t perfect, but it’s a lot better than what we have now.”

Realistically, of course, we’re not going to follow the Constitution. We’re going to keep flailing about with the “living” Constitution, stumbling from crisis to crisis, piling up constitutional violations, until a true emergency looms. Then our minds will be concentrated wonderfully.

But by then, of course, it will be too late. So we’ll hit a wall. And have to pick up the pieces as best we can, doing our best not to lurch into a dictatorship or communism or something.

So the answer seems to be: “Yes, we should amend the Constitution. But only in ways that force us to follow the Constitution we already have.”

In other words, avoid fundamental changes.

(Some days I think the answer is just a simple, straightforward constitutional amendment that reads: “AND WE MEAN IT!!!”)

But seriously, since we’re brainstorming about silver-bullet fixes, here’s my own suggestion. I call it the “Do Your Job Amendment.” The goal is similar to Greve’s—to limit public debt—but with an added (and crucial) ingredient: a guaranteed-to-work enforcement mechanism.

Dean Clancy, a former senior official in the White House and Congress, writes on U.S. health reform, budget, and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.

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