International Municipal Lawyers Association - Local Government Blog

Is It Time To Amend the Constitution? | November 4, 2008

wepeople1Several months ago, one of the guest commentators on CNBC gave several reasons why we needed to amend the Constitution to save the economy.  Frankly, his suggestions were underwhelming, but now seems to be the time to propose several amendments.   Six should be enough. None are likely to create a groundswell of popular support, but none are radical suggestions.  Almost all of the state constitutions have them, except the one addressing appointments.

           A single subject requirement for all legislation.

           A balanced budget requirement.

           A no lending of credit requirement.

           An executive budget provision.

           Authorizing line item veto of appropriation provisions.

           A provision requiring action on Executive appointments.

Granted, states have many budget woes themselves; that does not mean, however, that examples of good government cannot be honed to work better and more responsibly while solving some critical problems at the federal level.

With each campaign aggressively touting its abhorrence to earmarks, why not agree to modify the legislative process to prevent them.  A couple of the suggested amendments directly address that issue.  First, the single subject requirement – federal legislation can look like a Christmas tree with ornamental features often overwhelming the central structure.  Do as most states do – limit legislation to one subject.  Granted a Bill that has as its subject “appropriations” can have endless earmarks, but a bill amending the Fair Labor Standards Act should not. 

Even with this change, there may be bridges to nowhere or factories that make wooden arrows to save.  Authorizing the President to veto individual line items in appropriation measures can help insure accountability and limit unnecessary pork.  So too, can a provision requiring an “executive” budget; i.e., a budget that has appropriations the Congress can amend, modify and limit, but which it cannot increase.  Requiring that the budget be balanced, seems only rudimentary; yet, nothing in our Constitution presently requires it.  As part of a balanced budget requirement, limitations on debt, except in times of declared war, ought to be included. 

In the early part of the Nineteenth Century, state and local governments guaranteed loans for the expansion of commerce, generally for the construction of canals.  As many of these transportation companies failed, the governments walked away from their obligations and a financial crisis ensued.  State constitutions were amended and local governments were prohibited from lending their credit to private enterprise.  After the Civil War, a similar crisis arose when states extended their guarantees to railroad companies trying to get favorable routes and yards.  Again, state constitutions were amended and the states were prohibited from lending their credit to private enterprise.  These provisions do not prohibit outright loans; they prohibit governments from acting as guarantors for private loans.  The prohibitions prevent investors from falsely believing that a security has more value by virtue of government guarantees than the security is worth or prevent imposing liability on the government for a private business’ mishandling of its own business.  With the global economy, a federal government may need more leeway in this area than the states, but the concept prevents some of the harm and pain that we are now feeling.

The last measure has nothing to do with government finance, but seeks to end the embarrassing stalemate on appointments. While the stalemate may extend beyond the judiciary, solving the problem with only the judiciary in mind might be sufficient.  Not that Jefferson, Madison and Washington weren’t politicians and maybe it is only time that has elevated them to statesmen; but it is hard to believe that they and the other leaders who crafted our Constitution visualized a situation where Congress stalls on executive appointments hoping that the next election cycle will change the judicial philosophy of the prospective appointees.  The Constitution should require Congress to take a vote, prohibit filibusters or other parliamentary delaying tactics, within a set number of days (45 to 90), or the appointment is deemed confirmed. 

This is a six pack of amendments that might change some of the dynamics in Congress and in the federal government that have led most Americans to feel cynical about their government.  These amendments can also make our Congress and President more accountable and through that accountability may lead to better decision-making.  While the states could work to convene a constitutional convention, I think we might do better if we could get Congress to move them forward as amendments.

Posted in Constitutional

1 Comment »

  1. I remember last year the 4th Circuit Court of Appeals had 5 vacancies out of 15 judgeships…ridiculous. Partisan politics on BOTH sides of the fence. I’m not sure what the current situation is with the 4th Circuit, but I think some sort of procedural safeguard to ensure that a slot is filled is important.

    Comment by smalltown29 — November 4, 2008 @ 7:56 pm

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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