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August 2016 Policy Study, Number 16-2

   

Restoring Constitutionalism, Federalism, and Solving our National Fiscal Crisis: The Possibility of an Article V Convention of the States

   

The Problem

   

 

In Saving Congress from Itself: Emancipating the States & Empowering Their People, James L. Buckley, a retired United States Senator and former judge on the United States Court of Appeals for the District of Columbia Circuit, argues that “the United States faces two major problems today: runaway spending that threatens to bankrupt us and a Congress that appears unable to deal with long-term problems of any consequence.”[2] This is in addition to the erosion of federalism by an ever-growing, powerful federal government that has turned the states into mere administrative districts.

 

The federal budget, which is currently $4 trillion, is symbolic of the out-of-control spending. The national debt is approaching $20 trillion, and deficits are projected to rise in the coming years. The fiscal crisis is dividing the nation as well as both the Republican and Democratic political parties. Although both political parties share in the blame for causing the fiscal crisis, they each offer different solutions in how to resolve this major public policy problem. At the heart of this issue are different philosophies on the role and responsibility of the government toward the people. Fundamentally, this is a debate over our Constitution.


This fiscal crisis is not just caused by reckless spending, but also by the unfunded liabilities of entitlement programs such as Social Security, Medicare, and Medicaid. Jeffrey Miron, Director of Economic Studies at Cato Institute, wrote that “many recent policy changes have worsened the U.S. fiscal situation.”[3] Miron wrote:


These changes include the creation of Medicare Part D ($65 billion in 2014), new subsidies under the Affordable Care Act ($13.7 billion in 2014), the expansion of Medicaid under the ACA (from $250.9 billion in 2009 to $301.5 billion in 2014), higher defense spending (from $348.46 billion in 2002 to $603.46 billion in 2014), increased spending on veterans’ benefits and services (from $70.4 billion in 2006 to $161.2 billion in 2014), and greater spending on energy programs (average annual spending was $0.52 billion over 1998–2002 but $11.43 billion over 2010–2014).[4]

 

Miron argues that a “key policy lesson” from this fiscal crisis is that in order “to avoid a fiscal meltdown in the next few decades, the United States must slow the growth rate of federal expenditures, especially on health care.”[5] Michael Tanner, a Senior Fellow at Cato Institute and author of Going for Broke: Deficits, Debt, and the Entitlement Crisis, notes that the costs of the unfunded liabilities of entitlement programs exceeds $90.5 trillion, and these programs “alone account for 47 percent of federal spending today, a portion that will only grow larger in the future… .”[6] This means that the increase in costs of entitlements, along with interest payments on the debt, will place greater pressure on the federal budget. This is why the national debt and the fiscal crisis is arguably also one of our greatest risks to national security.

 

This fiscal crisis also represents a crisis of liberalism. As columnist Terry Jeffery wrote, “Since the 1930s, the liberal vision of the welfare state, where a growing percentage of the population is dependent on the government, has been transforming America.”[7] The welfare state, which had its creation in President Franklin D. Roosevelt’s New Deal, was greatly expanded under President Lyndon B. Johnson’s Great Society. It has continued to expand in the aftermath of the 1960s and has led directly to this crisis. “Now Americans can collect, among other federal benefits, Social Security, Medicare, Medicaid, disability insurance, food stamps, and Obamacare subsidies,” wrote Jeffery.[8] This is why reforming entitlements must be a top priority to preserve these programs for not only those who have and are paying into these entitlements, but also to avoid bankrupting the federal government.

 

Although Republicans and Democrats can share in the responsibility of creating this fiscal crisis, a larger portion of the blame must fall on liberalism, whose philosophy calls on the federal government to assume greater control of almost all aspects of American life. President Barack Obama, for example, has set new records of uncontrolled spending with little progress to demonstrate the necessity for that spending. As Terry Jeffery wrote:

 

While America has seen no great economic growth over the past decade, it has seen great growth in the federal debt. When Bush was inaugurated to his second term on Jan. 20, 2005 — in that last year when the American economy grew by more than 3 percent — the total federal debt was $7,613,215,612,328.37. Four years later, on Jan. 20, 2009, when Obama succeeded Bush, the debt was $10,626,877,048,913.08. That means the debt grew by $3,013,661,436,584.71 — or an average of $753,415,359,146 per year — in the second term of the last Republican president. As of Monday [February 8, 2016], the federal debt was $19,000,235,912,585.65 — having thus far grown by $8,373,358,863,672.57 during Obama's presidency. As the federal debt has climbed, household incomes have not. According to the Census Bureau's Table H-6, real median household income peaked in 1999, when it was $57,843 in constant 2014 dollars. In 2014, the last year reported, it was $53,657.[9]

 

The fiscal crisis is not the only issue that is dividing the nation. Social issues are just as divisive as the economic issues confronting the nation. Americans are divided on abortion, “so-called same-sex marriage,” immigration, gun control, drug legalization, assisted suicide, and  other issues, which has resulted in a significant cultural divide within the nation. The Supreme Court has legalized abortion and recently did the same for “so-called same-sex marriage.”

 

Whether one is looking at the fiscal crisis or some of the social issues that are dividing our nation, the issue goes back to a philosophical question over the Constitution. Ever since the American Founding, there have been debates  over the Constitution and the role of government in society. Just as the nation is divided over economic and social issues, the nation is deeply divided over the Constitution. As constitutional scholar Randy Barnett wrote:

 

Americans are deeply divided politically, ideologically, and culturally…This is because Americans are not just divided about politics, culture, and ideology. Americans are also divided about the Constitution itself. Every open seat on the Supreme Court is an occasion for intense partisan conflict. Confirmation hearings for Supreme Court justices become Kabuki theater in which our deep political conflicts are transformed into competing visions of the Constitution.[10]

 

Although it is expected that Americans would be divided over political issues, perhaps the most disturbing trend in our political culture is our growing civic ignorance about the Constitution and American government and history. The Founders understood that in order for the Constitution to survive, a civic-minded and virtuous people would be needed to uphold its truths and principles. As Texas Governor Greg Abbott wrote:

 

The Constitution is increasingly eroded with each passing year. That is a tragedy given the volume of blood spilled by patriots to win our country’s freedom and repeatedly defend it over the last 240 years. Moreover, the declining relevance of our Nation’s governing legal document is dangerous.[11]

 

In addition, Governor Abbott notes the disturbing truth that “most Americans have no idea what our Constitution says.”[12] This also applies to elected officials, many of whom are ignorant or just ignore the Constitution:

 

The Constitution is not just abstract and immaterial to average Americans; it is also increasingly ignored by government officials. Members of Congress used to routinely quote the Constitution while debating whether a particular policy proposal could be squared with Congress’s enumerated powers. Such debates rarely happen today. In fact, when asked to identify the source of constitutional authority for Obamacare’s individual mandate, the Speaker of the House [Nancy Pelosi] revealed all too much when she replied with anger and incredulity: ‘Are you serious?’[13]

 

Congress and the Executive branch are not the only branches of government responsible for disregarding the Constitution. Governor Abbott correctly argues that the Supreme Court “continues to identify new rights protected by the Constitution’s centuries-old text,” and “it is telling that the justices frequently depart from what the document actually says and rely instead on words or concepts that are found nowhere in the document.”[14]

 

The drift away from the Constitution is not just a recent problem. “Since the adoption of the Constitution American government and society have changed radically,” noted political philosopher Claes Ryn.[15] This is especially true since the 20th century when the Progressive movement in American politics directly challenged the Founding Fathers by arguing that not only was constitutionally limited government obsolete, but that the Constitution was a Darwinian or “living” document which changed with the times and conditions of society. This is why, as Governor Abbott noted, Democrats laughed at the idea that Obamacare or the Patient Protection and Affordable Care Act may be unconstitutional. According to the progressive worldview, the Constitution is “flexible” and Congress can exercise their enumerated powers in a broad fashion. The Progressive movement changed American government by altering the Constitution through massive legislative programs, such as President Franklin D. Roosevelt’s New Deal, President Lyndon B. Johnson’s Great Society, and numerous decisions by the Supreme Court which undermined both limited government and federalism.

 

One particularly egregious example of such constitutional alteration through Supreme Court decisions instead of amendments was the infamous 1942 case of Wickard v. Filburn. This and subsequent cases elaborated on the notion that the Founders did not mean to distinguish between interstate commerce and intrastate commerce when they wrote the United States Constitution and limited the national government to regulating only the former. Many supporters of an Article V convention would like to see an amendment to overturn this vast expansion of the national government’s regulation of almost every aspect of American life, which they believe would unleash an entrepreneurial boom with subsequent job creation, economic expansion, increased tax revenues, and the ability to reduce the national debt.

 

This long-term fundamental shift away from constitutionally limited government has resulted in our present drift away from the Constitution and the principles of the American Founding. As Claes Ryn wrote:

 

In actuality, political practice is today so different from the intent of the Framers that, in substance, the original Constitution has been virtually suspended. Over the years sometimes tortuous and highly tendentious constitutional interpretation has combined with powerful political and intellectual trends to produce an enormous expansion and centralization of the federal government and a concomitant erosion of checks and balances.[16]

 

The situation has caused James L. Buckley to argue that the “American Republic is in a very bad way today:”[17]

 

It is spending itself into bankruptcy and its legislative branch appears institutionally incapable of focusing on critical problems long enough to resolve them.[18]

 

As our culture and political institutions continue to drift further away from the Constitution, the question becomes: how do we resolve the major policy problems that are causing the nation to decline today? The solution to these policy problems is not only to turn back to the principles of the American Founding, but also to change the culture and hearts of the American people to understand the value of those principles. As Randy Barnett stated, we need to “remember our constitutional heritage.”[19] This also means that conservatives and libertarians must defend the Constitution and not give in to the argument made by many progressives, liberals, and even some conservatives that the Constitution is “broken.” As Governor Abbott argues, “the Constitution itself is not broken,” but “what is broken is our nation’s willingness to obey the Constitution and to hold our leaders accountable to it.”[20]

 

“Abandoning, ignoring, and eroding the strictures of the Constitution cheapens the entire institution of law,” argues Governor Abbott.[21] As Governor Abbott explains:

 

The Constitution provides a better way — if only we were willing to follow it. The Constitution imposes real limits on Congress and forces its members to do their jobs rather than pass the buck. The Constitution forces the President to work with Congress to accomplish his priorities rather than usurping its powers by circumventing the legislative process with executive orders and administrative fiats. And the Constitution forces the Supreme Court to confront the limits on its powers to transform the country.[22]

 

The solution then is a reformation of American politics and recommitting to the principles of the American Founding and the Constitution. Since the federal government has failed in its responsibilities, many states are hoping to solve these complex policy problems by amending the Constitution through a convention of the states or an Article V convention.

 

   

 

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