A Challenge to the Tea Party: Amend the Constitution

Font Size:

Still opposed by over half of the country, several methods to overturn the Democrats’ health care plan are in play. While many focus on the 2010 and 2012 election cycles, electoral success may not be sufficient for repeal. Even if Republicans make wide gains in 2010, they would need President Obama to repeal health care reform—his signature domestic policy accomplishment. The 2012 elections could prove promising if Republicans were to regain filibuster proof control of the Senate, the presidency, and the House. Even if the repeal effort is successful, no purely legislative act could prevent a similar government power grab from happening again. Nor can any of the individual mandate challenges hoping for a hearing in our federal courts. A permanent solution is needed to stave off America from fiscal disaster, of which our new health care entitlement is but one part.

We suggest that developing a grassroots network to adopt three constitutional amendments that would regain permanent control of the federal government. The first would outlaw the government mandating anyone to buy insurance or the government providing health care outside of pre-2009 programs. The second would require a two-thirds majority to raise the rates of any Federal taxation. The third amendment would require the Federal government to maintain a balanced budget, exempting specific wartime spending requests. We believe these three amendments would be the only way to permanently fix America’s impending financial catastrophe. As constitutional amendments are much like the lottery (many try to play, few win), it’s important to understand the uniqueness of our moment in history, and the impact of the Amendment process.

Why a Constitutional Amendment? Outside of the Bill of Rights, subsequent constitutional amendments were passed in light of profound social movements. After the Civil War, three amendments were passed that enshrined into law the goals of the abolitionists. The Progressive movement in the early 20th Century was responsible for the 16th through 19th Amendments (plus the 21st to reverse the 18th). Lastly, the 23rd, 24th, and 26th Amendments were pushed forth by the Civil Rights movement/New Left. All of these periods of Constitutional change were due to transformative social movements.

We believe that the Tea Party movement is a similarly consequential movement. It is historically unique because it is the first grassroots movement that aims towards less government involvement, not more. The number of political newcomers within its ranks maximizes its political potency. The impact of the Tea Party movement has prompted idiosyncratic Democratic pollster Pat Caddell to call it the most powerful political movement since the 1960’s antiwar movement. Directing their political force towards these three constitutional amendments gives limited government advocates their best chance to enshrine permanent guarantees against entitlement-expansion.

Working towards constitutional amendments rather than ordinary legislation hits at the heart of the extraordinary entitlement mentality governing federal spending. No process within our political system requires as much national consensus as a constitutional amendment. And no challenge faced by our political process requires more of a cultural change than the fiscal recklessness inherent to treating government as the proverbial “sugar daddy.” If any political process can ameliorate such a pervasive cultural attitude, it can only be the national dialogue and supermajority consensus within the constitutional amendment process.

Why These Three?
Much ink has been spent on the need for a constitutional amendment outlawing the individual health insurance mandate. While there are strong arguments placing the individual mandate outside Congress’ expansive (and largely, judicially contrived) regulatory authority, a government conceiving such authority doesn’t suddenly emerge. Rather, it emerges slowly, from an evolution of expanding federal power corresponding with citizen apathy towards constitutional safeguards. A permanent strike for limited government not only uses permanent means (a constitutional amendment), but strikes at the core of contrived congressional power: the power to spend with little limits, and the power to tax with a simple congressional majority.

Steven Hayward, author of The Age of Reagan, agrees, noting that Reagan’s attempts to re-negotiate the relationship between the individual and the state only partially succeeded because they lacked permanent, constitutional protections. Hayward persuasively argues that the best way for conservatives to complete Reagan’s legacy is to adopt some of the most salient amendments Reagan suggested: a balanced budget amendment and a supermajority to raise taxes.

The Tax Limitation Amendment and Balanced Budget Amendment need to be a package deal for fiscal sanity to occur. In isolation, they could arguably be more damaging than passing neither. For Democrats, a Balanced Budget Amendment alone would prompt them to spend gleefully; fully knowing their spending would be made up for with constitutionally-mandated tax increases. For the Republicans, adopting only the limitation on tax increases would enable all of their worse tendencies during the Bush era, continuing the ill advised policy of “tax cut and spend.”

An important caveat on the Balanced Budget Amendment. Unlike previous attempts at the line-item veto, which allowed the president to “cancel” provisions of legislation to bring the budget into balance, recognizing the discretionary power Congress can grant to the president is consistent with the Founding. Justice Scalia made this point while concurring in the judgment to find the line-item veto unconstitutional in Clinton v. City of New York.

The Political Effect of Calling a Constitutional Convention
As a Democrat-controlled Congress makes it unlikely for the Congress to call this convention, the call is left to the states. This is done when 2/3 of the states (34 in number) pass a resolution advocating for a constitutional convention. It could be very difficult to get 34 state legislatures to pass a resolution advocating for this, but extensive state-level campaigning by Republicans in the 2010 cycle could make this a somewhat realistic prospect. The 34th best Republican state on the presidential level in 2004 was Pennsylvania and the 34th best Republican state in 2008 was Nevada. While state legislatures are different animals than statewide presidential voting habits, this does not seem like a prohibitively difficult barrier to reach.

Though the political hurdles are relatively easy to surpass for an organized grassroots movement, numerous logistical challenges remain. There’s never been a constitutional amendment convention called before, and there are many questions as to how to organize one. Yet merely getting enough political support for a convention could yield congressional action on these amendments. Georgetown Law Professor Randy Barnett notes “Congress, fearing a convention, itself proposed the particular amendments requested by the states” if they got close to calling for a convention. Even Democrat voters in dark blue areas have proven susceptible to immense national pressure on these issues, which in turn affects their representation. Just ask Martha Coakley, or the 30-plus House Democrats who voted against the final health care bill.

For ratification, an amendment must pass 38 states. The 38th best Republican state in 2004 was New Jersey, which just elected a fiscally conservative Republican to the governorship. The 38th best Republican state in 2008 was Washington. We think it is likely that referendums to elect favorable delegates to a state convention would be successful, even in many deep blue states.

Even if Congressional action does not emerge, such a grassroots movement could positively affect those raising legal challenges to the individual mandate. Prof. Barnett also noted that “[w]hen the Equal Rights Amendment [ERA] came close to final approval…the Supreme Court rendered the ERA unnecessary by modifying the Court’s treatment of sex discrimination.” Here, significant opposition to the individual mandate raised on a constitutional basis might convince the Court to reason their commerce clause jurisprudence in such a way to exclude an individual mandate.

At worst, these potential side-effects are proof positive of the value in pursuing these amendments. The national dialogue alone would do the cause of limited government a great service, making the most of the current national spirit. At best, timid Congressmen would no longer fear tough votes to tax or spend. If passed, the Tea Party will have radically reduced the liberalizing pressures of the bureaucracy and interest groups with one stroke. Should they desire a lasting legacy, these amendments await them.

Will Haun is a Juris Doctor candidate at the Catholic University of America, Columbus School of Law, where he serves as president of the Federalist Society. Chris Palko is currently a graduate student at George Washington University and an intern at the Daily Caller.