pose some sort of amendment addressing the issue in order to avoid being forced into calling a convention over which it arguably could exercise no substance control. There is precedent for this idea: Congress proposed an amendment providing for direct election of Senators, which later became the Seventeenth Amendment, when the state legislatures were only one application short of twothirds. The Library of Congress has written: "... the political realities no doubt are that if there is an authentic national movement underlying a petitioning by two-thirds of the States there will be a response by Congress." 70

Whether the response by the 96th Congress will be to enact a procedures bill, to propose directly a balanced budget amendment, to mandate a balanced budget by state, or to do nothing at all remains to be seen. Should Congress be faced with the duty of calling a convention, it is to be hoped that Congress will act without basing procedural decisions on the merits of the issue at hand. To do otherwise would be to abrogate the intent of the Founding Fathers.

The Senate Judiciary Committee in 1971 stated the need for procedures legislation as being: "... to avoid what might well be an unseemly and chaotic imbroglio if the question of procedure were to arise simultaneously with the presentation of a substantive issue by two-thirds of the State legislatures. Should article V be invoked in the absence of this legislation, it is not improbable that our country will be faced with a constitutional crisis the dimensions of which have rarely been matched in our history.'

99 71

The 96th Congress would do well to remember that admonition.

REWRITING THE CONSTITUTION: LIFE, LIBERTY, AND A BALANCED BUDGET

(By Ben Martin)

Who do you like for president of the next constitutional convention-Sam Ervin or Archibald Cox? Take your time deciding, but do not take too long; the drive for a convention to require a balanced budget is bearing in on Washington. Officials there are hurrying to avoid it, but the thirty-fourth state could call for a convention within months. Then Congress would have to decide what to do about it, and the stakes could not be higher.

The call for a balanced budget has been raised to draw official Washington's attention finally to taxes, inflation, and a rising sense that government is out of control. It is a summary complaint against the growth of government, reflecting a basic insight that getting and spending, along with regulation, are the heart of public policy. It steps over piecemeal issues, and the demand for constitutional amendment underscores the seriousness of the complaint.1

The states have petitioned for a balanced budget, but limiting government spending is more nearly the matter. "Balanced budget" is a slogan that makes sense in individuals' terms, but on the federal level even higher taxes to balance government spending is the last thing advocates want. Another scheme-perhaps more sensible-would tie annual spending to increases in the gross national product.

Both ideas are enormously popular. In July, 1978, a Gallup survey found 81 percent polled favoring an amendment requiring a balanced budget, though the figure slipped to 70 percent in an AP/NBC poll last February. And a CBS News/New York Times poll last November found 76 percent favoring a cut in spending over a tax cut. Yet people are realistic: 70 percent doubted politicians will work to balance the budget.

Americans still display overwhelming support for the Constitution. At the same time. there is widespread disaffection and a sense of distance from government. The Harris poll found alienation from politics has doubled in a decade. Most believe the American condition is worse now than in the past,

1971 report, supra note 35, at 6.

70 Congressional Research Service, Library of Congress, supra note 2, at 858. 71 1971 report. supra note 35, at 2.

1 Article V. "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution. or. on the Application of the Legislatures of two thirds of the several States. shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes. as Part of this Constitution. when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."

and they also feel things will not improve. For the first time, there is personal pessimism as well; a maority now feel that their personal situations will deteriorate in the future, along with the country as a whole. And they pin the blame on Washington. Fewer have confidence in the central government than in state and local governments, and confidence levels are lower overall for governmental than for private institutions-except for organized labor, which is distrusted as much as the federal government.

The states have applied to Congress hundreds of times before, for a wide range of amendments, but this time Washington is worried. With the steady centralization of power and the emergence of a national press, the vectors of cultural and political innovation seemed clear: elite to mass, Washington to hinterland, figurative center to periphery. But now, out of nowhere out of state legislatures, of all places-comes this vulgar threat to the American

mandarinate.

What passes for leadership of the movement comes from something called the National Taxpayers Union, although a Maryland state senator, James Clark, has also been pushing the idea with other state legislators since 1974.

Since the Supreme Court has held that no individual taxpayer has standing to sue Congress over spending from the general treasury, the drive to limit spending constitutionally amounts to a grand, political class-action suit by taxpayers. The convention mode is the closest thing there is in the Constitution to the techniques of popular initiative and referendum, reflecting popular distrust of political establishments.

State legislators calling for a balanced budget are seen in Washington as traitors to the official class, siding with the voters against their big brothers at the national level and making them look bad. Accordingly, the first response in the capital was to threaten to shut off the federal money spigot to the states and localities: you want less spending, goodbye revenue sharing. This has had a sobering effect; state governors are already complaining about punitive blackmail from Washington.

Liberal Democrats generally oppose, in increasing order of ferocity: requiring a balanced budget; doing it by constitutional amendment; and doing that in another constitutional convention. Republicans in Washington also oppose a convention, but favor a balanced budget and are moving toward the method of amendment. The House Republican Policy Committee endorsed both a constitutionally required balanced budget and a limit on federal spending last spring, but party leaders in both chambers oppose another convention.

Jerry Brown of California is trying to ride the west wind by supporting all three, while Jimmy Carter of Washington opposes them. Brown's embrace of Proposition 13 last year assured his reelection as governor, but his support for a constitutional convention has hurt his chances for the Presidential nomination, at least in the party of government subsidy. He has little support among the union leaders, Democratic regulars, and political activists who are more liberal than the rank-and-file but who dominate the party's organization. They have little love for Carter and may pine for Kennedy, but Brown's endorsement of a balanced-budget amendment is considered heresy and may have disqualified him even as stalking horse for Kennedy.

The national press has treated the taxpayers' revolt from the beginning as an outlandish oddity-more dangerously reactionary than stock-car racing, but about as bizarre. It has received only grudging recognition as a genuinely popular trend and still is not designated as a fully respectable movement. Episodic coverage of the drive for another constitutional convention gave way early this year to a rash of press stories pronouncing it "sputtering" and tying it to Jerry Brown, whom the revisionists were then transforming from a serious candidate into a guru on safari. By siding with the taxpaying majority, Brown forfeited his greatest political asset-the willingness of the press to be used-and guaranteed coverage of his shallowness and naked ambition.

President Carter has avoided that mistake, which should aid his renomination but could jeopardize his reelection. He opposes legally requiring a balanced budget, on the advice of Charles Schultze, chairman of the Council of Economic Advisers. who says it would prevent the government from fighting recessions and would be impossible to administer. This reflects the countercyclical economic notion on which fiscal policy supposedly has been set for nearly twenty years, in which deficits during recession years are, in theory, offset by surpluses in boom years to produce steady growth without accumulating deficits. The trouble is

that the surpluses in the good years have not been tried. The last small surplus was in 1969, and inflation remains chronic, which allows government the luxury of ever-increasing revenues without the messiness of a tax increase.

Spending is politically profitable; taxing is not. Inflation conveniently pushes taxpayers into higher brackets, even when purchasing power declines, and tax revenues increase automatically. Spending can then rise, illusory "tax cuts" can be made noisily every few years, and government can grow.

In the past twenty-five years, the proportion of the income of the average American family taken in taxes has doubled. Federal, state, and local taxes now take more than a third of the net national product. Where does it all go? NeoKeynesian theory helps justify government spending to stimulate demand, but it says nothing about who the payers and payees ought to be. Liberal Democratic social theory and constituency interests provide the answer: they should be different people. In the 1970s, for the first time in our history, the primary business of the central government became the transfer of income among individuals. Those in the upper half of adjusted gross incomes (above $8,931 in 1975) paid ninety-three percent of all the personal income taxes collected by the Internal Revenue Service, while purposeful transfer programs accounted for more than half of all the spending. This has created a growing class of permanent government dependents who see their subsidies as entitlements and who, together with public bureaucrats, provide vital support for the Democratic party.

The calls for a constitutional amendment to require a balanced budget are an attempt to check the growth of the share of the national income taken by government. Some think an amendment that limits spending would accomplish that more directly, since taxes could be raised to balance any budget. The National Tax Limitation Committee. led by Milton Friedman, has proposed an amendment to Congress that would limit federal spending hikes to increases in the GNP, with a downward adjustment for inflation that would give politicians an incentive for reducing inflation rather than increasing it, as at present.

In practice, both ideas, balancing budgets and limiting spending, might tend to have the same effects. Taxpayers' complaints would slow the rise in taxesand therefore spending-a bit if balanced budgets were required; and inflationswollen taxes would quickly rise enough to balance the budget if spending were limited by law. Both amendments contain escape clauses that would free spending in case of national emergency, but neo-Keynesian economists-and President Carter-still claim they are insufficiently flexible to fight recessions.

Of course, inflexibility is the whole point of these spending limitations. Like locked liquor cabinets, they are intended to prevent larceny and intemperance in those we mistrust. Washington is a conglomerate of subgovernments-coteries of Congressmen and their staffs, bureaucrats, and lobbyists-concerned with different policy areas. Each of these iron triangles serves itself and its constituents in the short term, and the logrolling among them produces total spending and policy outcomes of unexpected proportions. The sluice points monitored by party leadership, the Congressional Budget Committees, and the Office of Management and Budget are unable to check the great flow of policy and spending. The proposed amendments to control the budget, are appropriately, determinedly constitutional, to govern profligate impulses when self-discipline is absent and resolution inadequate.

Democrats in Congress want to give resolution another try. The defeat of many liberal Democrats last November and the threat of the constitutional convention have been instructive. Suddenly, many are for a balanced budget-but not by constitutional amendment. And few are willing to risk another convention. Democrats have lost five of the six special elections for House seats since Carter's election; however, most members can rely on their anonymity and the advantages of office they have bought themselves to assure reelection.

The most worried are those deficit spenders in the Senate who feasted on the spoils of Watergate in 1974, but who now must face a less distracted electorate: Gary Hart of Colorado, Patrick Leahy of Vermont, John Durkin of New Hampshire, John Culver, George McGovern, Frank Church, Birch Bayh. They are getting their campaigns started earlier than usual, putting distance between themselves and Carter, and hoping the voters overlook the unbalanced budget in favor of all the water projects they've lugged into their states.

But fiscal 1981 is the year the Congressional Budget Committees are planning a balanced budget, for the first time in more than a decade, though only after another $23-billion deficit in fiscal 1980, the fruit of Carter's "austerity." They

may make it, too, because inflation is pushing tax receipts so high so fast that the 1981 budget could be balanced with even enough left over for a tax cut of some $15 billion.

That would meet Carter's campaign promise of 1976, but Congressional leaders are also hoping the promise of a balanced budget in just a couple of years will reduce pressure on state legislatures for another constitutional convention. In 1980, it would remain only taat-a promise-but that is probably the best the Democrats can do.

President Carter has called the proposal for a second convention "extremely dangerous," citing fears that it might throw out the Bill of Rights and undermine civil liberties, a curious reaction from a candidate who only wanted to make the government as good as the American people. But opponents believe that the American people would not be represented at another convention; it would be dominated by special interests.

If another convention were called, Congress would try to restrict its deliberations to the budget amendment, although most legal scholars doubt the validity of such an attempt. Prof. Charles Black of Yale Law School feels the framers intended the Congressional method for piecemeal amendment and the convention mode only when so many were dissatisfied with their government that a general revision was necessary. All the state applications for a balanced-budget amendment have limited their calls specifically to that subject, and some have called for a convention only if Congress fails to initiate such an amendment; but, once gathered, the delegates could argue convincingly that they were entitled to set their own agenda, and such a run-away assembly is the stunning possibility that mesmerizes everyone. At the furthest edge of plausibility, the delegates could propose drastic changes for the Constitution and also try to change the ratification procedure, as the first convention in Philadelphia did in 1787.

Whatever amendments another convention produced, the Congress might claim the right to refuse to submit them to the states. But whatever that outcome, three-fourths of the states must still ratify them to become part of the Constitution, and it is hard to imagine any attempts to avoid that last requirement. This provision, which no one has suggested changing, should assuage any reasonable fears about a wide-open convention, for any amendment that thirty-eight states approved could not be all bad. Nor is ratification likely to be causual for any amendment from now on, after the cautionary tale of the ERA.

We should admit that the first Constitution is moribound. Except for a few institutions-the dominant federal structure is not one of them-the original Constitution is largely irrelevant to contemporary public affairs. It set a framework for government on principles widely shared by Americans in the eighteenth century, still held by the majority today, but long abandoned by our governors. From the Mayflower Compact through the Articles of Confederation, Americans relied upon written fundamental laws to establish, but just as importantly to limit, government. The Constitution was written to correct the inadequacies of the Articles primarily in defense and foreign affairs, for which the new central government was allowed to finance itself. The commerce and currency clauses were intended to prevent state regulation and paper money. The Bill of Rights was intended as a further check on the central government, although it has become a license for central control.

Federalism is obliterated now, of course. State and local governments have become franchisees of Washington, dependent upon revenue carrots and submissive to the stick that inevitably followed. There are few domains left now for which federal action is unprecedented. Central government expansion has been driven through every opening in the first Constitution. The antifederalists were right.

The Constitution's careful separation of powers has been wrecked by the growth of Presidential initiative and Congressional delegation to the bureaucracy. The least accountable arms of central government, bureaucracy and the courts, govern most freely. What began as a Constitution of states' and private rights has been turned into a cornucopia of powers.

Building a collective state in this century has required demolition of the classical liberal values of the Constitution. Redistribution and regulation have required progressive assaults on property, and an antibourgeois animus has driven the architects of our new constitutional order. The new premises of public policy have turned taxpayers' money into "public funding" or "federal spending." Senator Kennedy has criticized the "blank check for all the spending programs

contained in the Internal Revenue Code the tax expenditure programs." Even the money the government lets you keep should not be regarded as "yours," rather as a boon from Washington. Senator McGovern described Californians voting for Proposition 13 as "degrading hedonists."

Today's rebellion is aonther middle-class reassertion of the legitimacy of the inherited order, as was the original Revolution. Tax rebels today would agree with the revolutionary aim of John Adams: "I say again that resistance to innovation and the unlimited claims of Parliament, and not any new form of government, was the object of the Revolution."

Most of the values underlying that Revolution and the Constitution were found in the thought of John Locke, who distinguished between occasional violations of natural law inevitable under any form of government and chronic violations constituting a "long train of abuses, prevarications, and artifices" marking degeneration into tyranny, against which rebellion became a right, even a duty. Liberty was conceived as freedom from alien dictation, freedom from government, and American conditions seemed so neatly to confirm Locke's views that they became the bedrock of American political thought.

Americans generally expect and accept social change, but primarily outside politics and not as a sweeping purpose of government. They generally support the Lockean emphasis on private property as crucial to individual liberty, and they value achievement still. It is no wonder what mounting redistribution and regulation have evoked today Jefferson's charge against King George III, that "he has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance."

Washington is mobilizing to avoid another constitutional convention. The Congress has been alternately soothing the states with promises of a balanced budget by 1981 and threatening them with cuts in revenue sharing. Senator Bayh's Judiciary Subcommittee on the Constitution has been holding hearings on an amendment, and others are on in the House.

President Carter has set up a squad of staff members from the White House and the Office of Management and Budget to pressure governors and legislative leaders in key "battlefront" states not to call for a convention. It is cooperating with a group called the Citizens for the Constitution, brought together by Lt. Gov. Thomas P. O'Neill III of Massachusetts to lobby against a convention, backed in turn by labor unions, civil-rights groups, and public-interest groups. Congress might try to get by with some general resolution for fiscal responsibility, hoping that will stem the tide. Or it might propose a balanced-budget amendment itself, hoping that thirty-eight states will not ratify it after they realize that balancing is not the same as controlling spending. Nearly the most dangerous move, from liberal Democrats' perspective, would be a Congressional amendment to tie annual spending to increases in the GNP. This makes more sense than a balanced-budget requirement and comes closest to satisfying tax rebels.

Democrats in Congress have resisted efforts to set ground rules of a convention by law. Such a law would set the time, place, delegate-selection, and voting procedures and try to set the issue to be considered.

Delegates would probably be elected in House districts, with seats at large from each state. If the thirty-fourth state applied quickly enough and Congress moved soon enough, Washington politicians might prefer delegate selection at the same time as the 1980 elections, so they could get double duty from their campaign funds and organization. That timing would probably help offset the damage to Democrats if the elections of delegates were on a separate ballot, formally nonpartisan, and decided by the issue.

In any case, the advantages of Washington incumbents in such elections would be so great that Congress might be forced to set the size of the convention at, say, twice that of the Electoral College, instead of just one from each district and two from each state. This would still be an assembly of just under 1.100 and would make it easier for Ralph Nader, César Chavez, and William Buckley to join the crowd.

Contemporary liberals warn that reactionaries-meaning classic liberals who still like the values of the first Constitution-would dominate a new convention. But it is just as likely that leftist groups already strong enough to have entrenched themselves in Washington would be able to take over a convention as well. Unions, especially, as well as the new class of well-educated professional and managerial symbol-specialists who took over the Democratic party in 1972,