Finally, per section four, every citizen would have the standing to sue in order to ensure the amendment's enforcement. This provision is intended to prevent a situation in which the president and Congress have colluded to violate this new section of the Constitution and yet no citizen — or only a very few citizens — can demonstrate enough direct ill effects to establish standing to sue in federal court. By having the language of the Constitution itself explicitly grant every American this standing, the amendment makes it easier for any citizen to challenge the laws that fund annual budgets if these measures violate the amendment — and so make it easier for the judiciary to strike down such laws as unconstitutional.
CHECKS AND BALANCES
Like all constitutional modifications, the Limited Government Amendment could be proposed either by Congress or through a convention called upon the application of two-thirds of state legislatures. Given the nature of this amendment, the state legislatures would almost certainly need to be the originating source. But Congress might ultimately be coaxed into action: If the American people could persuade anything approaching two-thirds of state legislatures to advance this idea, then Congress might prefer to propose the amendment itself, rather than inviting a convention to do so.
It is true that the constitutionally sanctioned process of having state legislatures call a convention to propose an amendment has never been utilized. One possible reason for inaction in this vein has been the theoretical possibility of a runaway convention; in light of the very real and pressing dangers that we already face to our liberty and solvency, however, such potential concerns are comparatively trivial. Besides, there are two reliable checks against potential mischief.
First, the state legislatures could legally constrain their respective convention delegates to vote only on this particular amendment. This measure would be similar to many states' current policies that legally bind their Electoral College delegates to vote for the candidate who receives the largest share of the state's popular vote. If even a significant minority of states were to undertake this precaution, it is unlikely that any other potential amendments could achieve the majority support they would need to be formally proposed.
Second, if any other potential amendments were to be officially proposed, they would still have to be ratified by three-quarters of the state legislatures or by conventions in three-quarters of the states — whichever Congress preferred — to have any legal effect. Such a supermajority requirement is unlikely to be met by ill-advised proposals.
It should be no surprise that this second check is in place. The founders, after all, knew what they were doing. And they presumably would not have empowered state legislatures to call a subsequent convention to propose a constitutional amendment if they had thought this provision would subvert the work they were in the midst of completing at Independence Hall.
THE RIGHT AMENDMENT
Frustration with federal excess has spawned other constitutional-amendment proposals in recent years. Most noteworthy are a Term Limits Amendment, a Balanced Budget Amendment, and Georgetown law professor Randy Barnett's recent proposals for a Federalism Amendment. Each of these proposals represents an attempt to rein in excesses of federal power, and each has its merits — but each addresses something other than the real problem. In expelling many of the shameless spendthrifts who populate Capitol Hill, a Term Limits Amendment would also remove from office many good, cost-conscious members of Congress; the mix would by no means be guaranteed to improve. A Balanced Budget Amendment, meanwhile, would limit deficits but not necessarily spending; it might only succeed in causing taxes to be raised to European levels.
Barnett's Federalism Amendment would repeal the 16th Amendment and severely curtail the federal government's ability to interfere in states' policies and activities. In addition to being a somewhat immoderate proposal, calling for federal judges or supermajorities of states to rein in the federal government seems overly optimistic. Judges have consistently shown their willingness to apply tortured readings of the Constitution to avoid checking Congress. And state governments are often nearly as bloated and profligate as the federal government, run by representatives too similar to their free-spending counterparts in Washington.
The only other direct option for constricting government would be to place limits on government's funding source. But at a time when America owes $13 trillion, cutting off revenue would be unwise. Besides, as our Congress has consistently shown, it doesn't have to have money to spend it. Furthermore, over time, if our government's ability to spend becomes limited, its appetite for taxation will be limited, too: After all, taxing and spending isn't much fun without the latter part. So the real problem is excessive spending, and that is what we must stop.
Obviously, an amendment to constrain the growth of spending would not have an easy time getting enacted. It would require a protracted effort, and it would face long odds. But it is worth remembering that most other constitutional amendments did at some point, too — not to mention the Constitution itself.
A further advantage of the Limited Government Amendment over other recent proposals is that it is designed to generate constructive debate in the course of that enactment struggle. The amendment's advocates would not need to argue against government as such — or even against the need for modest expansions of government's activities over time — but simply for some prudent limits. Its opponents, meanwhile, would have to make the case not only for allowing government to expand, but for allowing it to expand without limit. Such a debate would be enormously clarifying for the country. It could also have the added benefit of inspiring similar amendments to state constitutions. At a time when many states are awash in red ink and some even teeter on the brink of bankruptcy, such proposals might prove of great use to cost-conscious governors and legislators (not to mention state taxpayers), and offer a useful proving ground for the national-level amendment.
Above all, both as a proposal and as a ratified amendment to our Constitution, the Limited Government Amendment would focus the country on the right issue: the question of spending. With spending comes regulation; with spending comes taxation; with spending comes the consolidation of power. The danger inherent in such consolidation was already evident to Alexis de Tocqueville back in the 1830s, when he warned against it in Democracy in America. To Tocqueville, the surest way to undermine people's incentive and ability to actively govern themselves was to consolidate money and power in a centralized government. Government action, he believed, would then increasingly take the place of free human action and interaction, leading to a scenario in which, as he put it,
the sovereign extends its arms over society as a whole; it covers its surface with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd; it does not break wills, but it softens them, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one's acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.
But in the wake of this stunningly prescient description, Tocqueville also offered encouragement and advice on how we should proceed. He wrote that the "perils" he described are not "insurmountable," and that our instincts to combat them "will always be found because they come from the foundation of the [democratic] social state, which will not change. For a long time," he added, this "will keep any despotism from being able to settle in, and [it] will furnish new arms to each new generation that wants to struggle in favor of men's freedom."
It would appear that the time has come for this generation's struggle to reclaim some of America's lost freedoms. The majority of Americans have reached the limits of their tolerance for obtrusive centralized power — and, as is evident in the Tea Parties and other popular appeals to the early days of the republic, many are eager to restore the founders' vision.
Still, there are some who, though alarmed by the unbridled expansion of government, might be reticent about championing a Limited Government Amendment. For them, a thought experiment is in order. Suppose that everything falls into place for the repeal of Obamacare, the greatest immediate threat to limited government in our day. Suppose opponents of that entitlement, most of them Republicans, take the House in 2010. They also take the Senate in 2010 or 2012, by a significant (but likely not filibuster-proof) majority. They win the White House in 2012. With President Obama himself having been removed from office, supporters of Obamacare read the clear writing on the wall and don't dare to filibuster in the Senate. Opponents subsequently pass a law in January 2013 to repeal Obamacare, thereby removing that scourge to liberty and fiscal solvency from the books. Celebrations ensue, and a great victory for American ideals and limited government has been won.
Then what?
AN ESSENTIAL REVISION
It is our duty as American citizens to keep vigil over our Constitution, strengthening and maintaining it, rather than blithely expecting it to maintain itself. Thomas Jefferson warned against those who would refuse to tend to our founding documents, writing: "Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment." And President George Washington, in his farewell address, shared with his fellow citizens his fondest hopes that "the free Constitution, which is the work of your hands, may be sacredly maintained — that its administration in every department may be stamped with Wisdom and Virtue." He certainly did not think that the document would maintain itself.
Our forefathers wrote and ratified our Constitution to include an amendment process, so that if a correction, or recalibration, were needed, we could provide it. Adapting the Constitution to the concerns of the day doesn't mean allowing judges to mold the document into a vehicle to impose their will: That is lawlessness. Rather, it means that the Constitution can be changed, through the proper legal process, by the American people.
We find ourselves in a moment at which the freedoms our forefathers intended for us are endangered by the very government meant to secure those freedoms. Were the founders here today, they would almost certainly urge Americans to take action to avoid the pitfalls of "public debt," excessive taxation, and the "wretchedness and oppression" that follow — let alone to combat the dangers that an overbearing government poses to our civic fabric and way of life. The best way to take up that call is through the Limited Government Amendment. And given the urgency of America's predicament, the best time to advance it is now.
Jeffrey H. Anderson is director of the Benjamin Rush Society, which promotes lower costs and increased access to health care through greater competition and choice.
http://nationalaffairs.com/publications/detail/a-limited-government-amendment