Memo to the Tea Party

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Logan Roise says:

    Interesting post.

    I think if there were to be a push for the BBA and if it were to go the state legislature route, I would imagine any states that previously supported it and still supports it would have no problem passing another resolution calling, again, for a constitutional convention. Similarly, any states that had previously supported it but don’t support it now would most likely have no problem with resending their previous support. Thus, we most likely would avoid the constitutional question of whether there is a SOL on resolutions calling for constitutional conventions.

    If the 2/3 bar were to be overcome, I don’t think Congress could constitutionally refuse the request. How this convention would be organized is almost the most interesting aspect, in my opinion. I would imagine it would end up being a giant CF because we would probably have the crazies from both extremes unwilling to compromise on the language.

    In regard to the BBA, I quasi support it. On the one hand, I’m fiscally conservative. On the other hand, I understand circumstances arise where you might have to spend more than you take in (i.e. in the event of a war). There are also situations in which spending more now would help produce more revenue in the future and thus making the aquisition of debt reasonable (i.e. like my student loans or federal spending on infrastructure projects). Thus, I would prefer some sort of language allowing for budget deficits based on maybe a supermajority vote in Congress (open to other ideas).

    Oh and what about section 4 of the 14th amendment? Doesn’t it mention not questioning the national debt? Please correct if I’m wrong but how would that play out? Would a constitutional convention on a balanced budget amendment not potentially conflict with that? Also, I think the number of states stands at 32 by my count but again I could be wrong.

  2. I agree that Congress can’t constitutionally refuse the request. The point of the convention, after all, is to bypass Congress, and it would make no sense to allow Congress a choice in the matter.

    Realistically, though, Congress regularly does things they can’t Constitutionally do, and the Supreme court signs off on it. Has something to do with everybody on the Court having been approved of by the Senate, I suppose…

    Since Congress is perfectly capable of originating any amendments they do want, a convention can only originate amendments Congress doesn’t want. So they’ve also got motive to ignore the request. I see a genuine constitutional crisis if we reach the point of enough states calling for a convention.

    Bring it on: Congress has long had contempt for the Constitution, it’s time it became open, and the people have a chance to restore constitutional government if they really want it.

  3. A.J. Sutter says:

    Just wondering: Are there supporters of the Iraq War who also support a BBA? Why should war be a better justification for a deficit than, say, education or feeding people? And did the original BBA proposal include a provision that limits the Executive’s ability to print money?

  4. “Why should war be a better justification for a deficit than, say, education or feeding people?”

    Because, as hard as it might be for the average person to afford an education and food after an economic meltdown caused by uncontrolled government borrowing and spending, it’s even more difficult to afford them if your country is being looted by an occupying army.

    The real question is, is a war of aggression as good a justification for a deficit, as a war of defense? I think not…

  5. ParatrooperJJ says:

    Unfortunately a convention would most likely be hijacked for other purposes. For reference, look at what happened the last time one was called.

  6. A.J. Sutter says:

    Thanks, Brett. And the Iraq War was a war of …? Leaving aside issues of (i) state vs. non-state aggressors, and (ii) when was the last time the US was under threat of being occupied (Pearl Harbor, maybe? or earlier, if one believes that FDR tricked the Japanese into attacking). Not that I think WWII wasn’t worth a deficit; but rather that the justifications for a deficit are both broader and narrower than most current “fiscal conservatives” allow.

    Query whether the economic meltdown might better be attributed to the Fed’s low-interest policies that fed the addiction of both government and corporate execs to growth in corporate profits, with the goal of boosting both exec compensation and GDP. The only way to do that was through consumer loans, since rising income inequality in the US had eroded consumers’ spending power; median household income was declining significantly in the early 2000’s. As for government borrowing, the real problem is that Americans aren’t patriotic enough to loan the Feds the money — quite unlike Japan, where more than 95% of government borrowing is held domestically.