GOP Attempts to Make History by Remaking The US Constitution
WASHINGTON — IF Republicans on Capitol Hill have their way, the venerable United States Constitution could soon undergo its most extensive alteration since Washington lawmakers wore powdered wigs.
The GOP is talking about no fewer than four amendments to the Constitution. If all four passed Congress and were then approved by the necessary three-fourths majority of state legislatures, it would be the largest number of amendments produced in the shortest amount of time since the first Congress in 1789 took up 10 alterations now known as the Bill of Rights.
The historical record is not in the GOP's favor. Since the Constitution's founding, lawmakers have proposed some 10,000 amendments. Only 33 have passed Congress, and only 27 have been ratified by the states.
But Washington's political world has been turned upside-down in recent months. Has the US entered not only an era of congressional Republicanism, but the age of government by constitutional amendment, too?
Prospects look good for a constitutional amendment to balance the budget - despite unexpected early opposition this week. ``Looking around the country, it is likely the states would ratify a balanced-budget amendment,'' says Rich Jones of the National Conference of State Legislators.
But the balanced-budget amendment, some experts say, is just the sort of thing that shouldn't be cluttering up our nation's founding documents. It's complicated - and it is something Congress could do itself, without constitutional prodding.
``There is nothing [written] in technical jargon in the Constitution,'' says Robert Goldwin, a scholar at the American Enterprise Institute here. ``All the other amendments, while not always crystal clear, are stated in straightforward, plain English.''
The GOP is also promising a vote on an amendment to limit the number of terms members may serve.
House Speaker Newt Gingrich (R) of Georgia vows to hold hearings on constitutional amendments allowing prayer in school and prohibiting Congress from requiring states to comply with federal laws without providing the funds necessary to do so.
Is Speaker Gingrich, who has been a critic of Congress, seeking to bypass legislators via the route of rewriting the Constitution?
At the heart of this question lies a debate about the distribution of powers as old as the document itself. It is unusual, says Mr. Goldwin, for the majority party in Congress to propose so many amendments. In the past, most have been pushed by individual members.
Goldwin and other constitutional scholars have a simple test for whether an issue should be handled as a constitutional amendment rather than a statute: Is there a state law or a court decision that prohibits Congress from passing legislation?
Take the 16th Amendment, for example, which countered a Supreme Court decision and made the income tax legal.
``The criteria for an amendment should be whether the problem addressed by the amendment results from a serious failing of the system of checks and balances,'' says Nelson Lund, law professor at George Mason University in Washington and former counsel to President Bush.
A school prayer amendment, for instance, is necessary because the Supreme Court has such a secular interpretation of the First Amendment, argues Judge Robert Bork. And Congress, if it truly believes in federal term limits, may be forced to impose them by amendment rather than statute if the Supreme Court finds unconstitutional an Arkansas law limiting the terms of its congressional delegation. A decision will be delivered this spring.
But not all the issues that Republicans would turn into amendments pass the test. There are no legal obstacles to Congress balancing the budget, for instance. There is nothing stopping lawmakers from themselves prohibiting so-called unfunded federal mandates.
Proponents, however, argue that a balanced-budget amendment is necessary to impose discipline on members who seem unable to limit their spending habits to available revenues. The two provisions enjoy broad support: 80 percent of Americans support a balanced-budget amendment; 43 states require a balanced budget, and all are wary of federal mandates.
Professor Lund argues that the battle over deficit reduction shows that ordinary political processes are not producing solutions.
``The Constitution is meant to address problems created by the collective character flaws of the individual members of Congress,'' he says.