By Publius Huldah
This speech was presented to Campaign For Liberty – Memphis on March 24, 2014. It exposes some of the false claims made by those pushing for the so-called “convention of states”. 1
Below are hyperlinks to the exhibits referred to in the speech. Additional resources are also included.
The one page Chart which illustrates our Declaration, Constitution, and federal system is HERE.
The Congressional Research Service (CRS) Report 2 cited in the speech was dated March 7, 2014. CRS’s revised Report, dated April 11, 2014, is HERE. The Report exposes as false the assurances that the States would be in control of a convention. The Report says:
“First, Article V delegates important and exclusive authority over the amendment process to Congress…” (page 4)
“Second . . . Congress has traditionally laid claim to broad responsibilities in connection with a convention, including . . . (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” (page 4) 3
“. . . [In previous bills filed in Congress] [a]pportionment of convention delegates among the states was generally set at the formula provided for the electoral college, with each state assigned a number equal to its combined Senate and House delegations. Some bills included the District of Columbia, assigning it three delegates, but others did not include the federal district. . .” (page 37; see also page 41)
“. . . A related question concerns vote allocation in an Article V Convention. Would delegates vote per capita, or would each state cast a single vote, during the convention’s deliberations, and on the final question of proposing amendments?. . .” [then follows a discussion of different views on this undecided issue] (page 41)
“Article V itself is silent on membership in an Article V Convention, so it is arguable that Congress, in summoning a convention to consider amendments, might choose to include the District of Columbia and U.S. territories as either full members at a convention, or possibly as observers. As noted previously, some versions of the Article V Convention procedures bills introduced in the late 20th century did provide for delegates representing the District of Columbia, although not for U.S. territories . . .” (page 42)
Page 40 of the Report shows there doesn’t seem to be any:
“. . . constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention. . . “
So! As the CRS Report states on page 27:
“In the final analysis, the question what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed and a convention assembles.”
Do you see? But by then, it will be too late to stop it. HERE is former US Supreme Court Chief Justice Warren Burger’s letter confirming this. 4
To see how six of Mark Levin’s so-called “liberty amendments” do the opposite of what he claims, go HERE.
To see – on one page – proof of the original intents of the “interstate commerce”, “general welfare”, and “necessary and proper” clauses, go HERE.
The proponents of a convention portray the States as victims of federal tyranny. But the Truth is that the States voluntarily surrendered their retained powers, and the natural rights of The People, TO the federal government. And they did it for federal funds. Today, States get from 20% (Alaska) to 45.3% (Mississippi) of their State budgets from the federal government. State governments don’t want to rein in the feds! The people who run your State will do anything to keep their federal funds. HERE is the Pew Report.
Our Framers – those who actually signed the Constitution – NEVER said the purpose of amendments is to rein in the feds if they usurp powers. What they actually said is:
- the novelty & difficulty of the experiment requires periodical revision (Mr. Gerry at the federal convention on June 5, 1787);
- amendments remedy defects in the Constitution (Hamilton at the federal convention on Sep. 10, 1787);
- useful amendments would address the “organization of the government, not … the mass of its powers” (Federalist No. 85, 13th para); and
- “amendment of errors” & “useful alterations” would be suggested by experience (Federalist No. 43 at 8.)
HERE are the Articles of Confederation. Note that Art. XIII required approval of amendments by every State.
HERE is the Resolution, made by the Continental Congress on February 21, 1787 (p 71-74), to call a convention to be held at Philadelphia:
“…for the sole and express purpose of revising the Articles of Confederation”.
HERE is James Madison’s letter of Nov. 2, 1788 to Turberville. Copy it to word processing, make paragraph breaks, & highlight it. Madison NEVER supported the convention method of amending our Constitution.
HERE is Joe Wolverton’s article about the Socialists’ involvement in the push for a convention.
HERE is the Constitution for the Newstates of America. Article XII addresses ratification by a referendum called by the President. Read HERE about the proposed Constitution for the New Socialist Republic in North America. Read them and see what is being planned for you by people you think are on your side.
HERE is the screen shot of Jordan Sillars’ comment re re-writing the Constitution.
For Q’s & A’s on this issue, go HERE.
1 There is no such thing as a “convention of states” to propose amendments. The term is a marketing gimmick used by proponents of an Article V convention to manipulate people into believing that the States would control an Article V convention – from start to finish.
Article V, US Constitution, provides two methods for proposing amendments to the Constitution:
1. Congress proposes amendments and submits them to the States for ratification [the method we used for our existing 27 Amendments]; or
2. Congress calls a convention for the purpose of proposing amendments [for good reason, we have never used this method].
2 Even though we have never had an Article V convention; Congress has examined procedures for “calling” a convention so as to be ready if the need arises. The CRS Report proves that Congress has historically viewed its powers respecting “calling” a convention as exclusive and extensive. I thank Robert Brown for bringing the CRS Report to my attention.
3 The position Congress has historically taken in this regard is totally consistent with Article I, Sec. 8, last clause, which delegates to Congress power to make all laws “necessary and proper” to carry out the power vested in Congress at Art. V to “call” the convention.
4 Folks! For the sake of your Posterity, you must understand this: After a convention is convened, the delegates can do whatever they want – including coming up with an entirely new Constitution with its own new method of ratification. Chief Justice Burger wrote in his June 22, 1988 letter to Mrs. Phyllis Schlafly:
“… there is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the Confederation Congress “for the sole and express purpose. . .”
The federal convention of 1787, which was called by the Continental Congress “for the sole and express purpose of revising the Articles of Confederation”, should serve as a warning: The delegates to the 1787 convention ignored their instructions from the Continental Congress [and from their States]; ignored Art. XIII of the Articles of Confederation which required the States to obey Congress on matters covered by the Articles, and wrote an entirely NEW Constitution with a NEW method of ratification which required only 9 of the 13 States for ratification.
Credits: Many thanks to Devvy Kidd, Blue Tail Gadfly, and M. Craig Elachie, from whom I lifted the very best lines in the speech. PH
Posted October 11, 2014.
By Publius Huldah
Q: Doesn’t our Constitution already provide for controlling federal spending?
A: Yes. It lists the purposes for which Congress may spend money. Spending is limited by the “enumerated powers” listed in the Constitution:
- If it’s on the list of powers delegated to Congress or the President, Congress may lawfully appropriate funds for it. Read the Constitution and highlight the delegated powers – then you will know what Congress may lawfully spend money on.
- If it’s not listed, Congress may not lawfully spend money on it.
Q: What is the connection between the Oath of office (Art. VI, cl. 3) and federal spending?
A: All federal and State officials take an Oath to support the federal Constitution. The Constitution lists what Congress may lawfully spend money on. When people in Congress spend money on objects not listed in the Constitution; and when State officials accept federal funds for objects not listed (race to the top, common core, etc.) they violate their Oath to support the Constitution.
Q: Are the federal departments of Education, Agriculture, Labor, Energy, Housing & Urban Development, Health & Human Services, DHS, etc., etc., constitutional?
- Power over education, agriculture, labor relations, energy, etc., etc., was NOWHERE in the Constitution delegated to the federal government. Those powers were reserved by the States or the People.
- DHS – a national police force under the President’s control – is becoming our version of the East German STASI. Yet the States colluded with the feds in nationalizing law enforcement because they wanted the federal funds and military equipment.
Q: How did we get a national debt of over $17 trillion, plus trillions more in unfunded liabilities?
A: Congress spent on objects for which it has no constitutional authority, such as teaching Chinese prostitutes how to drink responsibly, bailouts of private businesses, welfare handouts, farming programs, education schemes, and grants paid to States to bribe them into implementing unconstitutional federal programs. It was the unconstitutional spending which gave us this crushing debt.
Q: The 10th Amendment says all powers not delegated to the federal government by the Constitution are reserved to the States or to the People. What happened to these reserved powers?
A: The States sold them to the federal government. The States have become administrative subdivisions of the federal government, and their aim is to siphon as much money as possible from the federal government.
Q: What should we do about the unconstitutional spending?
A: We must eliminate pork. We must systematically dismantle unconstitutional federal departments & agencies. Except that the Department of Education should be shut down, and its bureaucrats sent home, by this Friday at 5:00 p.m. All these functions must be restored to The States or The People.
Why BBAs Are Destructive
Q: Why won’t a BBA fix our debt problem?
A: They don’t address the cause of the problem: Congress spends where they have no constitutional authority to spend. The BBAs don’t eliminate the unconstitutional spending; and they place no limits on the amount of the unconstitutional spending.
Q: Is a BBA harmful?
A: Yes. All versions of the BBA legalize spending which is now illegal and unconstitutional as outside the scope of powers delegated to Congress or the President.
Q: Would a BBA fundamentally transform our Constitution?
A: Yes. All versions of the BBA amend out the enumerated powers limitations on the federal government and transform the federal government into one of general & unlimited powers where the feds may spend money on whatever they want as long as they don’t exceed the spending limits “imposed” by the BBA.
Q: So a BBA changes the constitutional criterion for spending?
A: Yes! All versions of the BBA change the criterion from:
- WHAT Congress spends money on (it must be an enumerated power), to
- A LIMIT on total spending where Congress can spend money on whatever they want.
Q: How are spending limits in the various versions of the BBA set?
- by the amount they take from us in taxes, or
- by a certain percentage of the GDP, or
- by the additional amounts they borrow to finance their spending.
Q: Can these limits on spending be raised?
A: Yes! In most versions of the BBA, Congress can vote to raise the spending limit (just as they vote every few months to raise the debt limit). In the version of the BBA by Nick Dranias and Compact for America, Congress and at least 26 States can vote at any time to raise the spending limit.
Not only do the BBAs fail to address the cause of the problem (Congress spends on unconstitutional objects); none of them limit the amount of Congress’ spending because the spending limits can be raised whenever they want to raise them.
So! Just as Congress votes every few months to raise the debt ceiling; they can vote whenever they want to raise the spending limit.
Q: What about Mark Levin’s amendment “to limit federal spending” (page 73 of his book)?
A: Levin’s amendment makes lawful the spending which is now unconstitutional. And his amendment does nothing to control spending:
- Levin substitutes a “budget” [which permits spending on whatever people in the federal government want] 1 for the enumerated powers listed in the Constitution; and,
- While it pretends to limit spending to income, it actually permits Congress to suspend the spending limit and to continue to raise the national debt limit.
So! Like all other BBAs, Levin’s legalizes the present unconstitutional spending and does nothing to curb spending. It legalizes the status quo. And it guts our Constitution by erasing the enumerated powers limitations on spending.
Q: What about Randy Barnett’s version of a BBA? [See Barnett’s 8th amendment here.]
A: Randy Barnett, law professor, redefines “unbalanced budget” to mean a budget where the national debt is greater than it was the previous year. [Yes, you read that right.]
Barnett’s amendment doesn’t address the unconstitutional spending which caused the massive debt.
And it delegates sweeping new powers to the President to stop funding anything he doesn’t want funded. E.g., it permits him to ban appropriations authorized by the Constitution, such as all funding for our military (which is authorized by Art. I, Sec. 8, clauses 11-14).
Q: What is the real purpose of all versions of the BBA?
A: The sole purpose is to remove the enumerated powers limitations on the federal government and give it general & unlimited powers.
Folks! You must read the texts of the proposed BBAs and see what they actually say. Do not stop with the name and just read in your own understanding of what it means to “balance a budget”.
For more information on various versions of the BBA see:
1 The federal government didn’t have a budget until the Budget Act of 1921, which purported to grant budget making power (taxes & appropriations) to the President.
The Budget Act is unconstitutional. Article I, Sec. 8, cl. 1, delegates to Congress Power to lay and collect Taxes; and Art. I, Sec. 9, next to last clause, delegates to Congress Power to make appropriations:
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Before the Budget Act of 1921, Congress made appropriations for items listed in the Constitution as the need arose; determined the taxes, and kept records of both. PH
By Publius Huldah
The gap between what this BBA pretends to do – and what it actually does – is enormous. It has nothing to do with “balancing the budget” – it is about slipping in a new national sales tax or value-added tax in addition to the existing federal income tax.
We have become so shallow that we look no further than a name – if it sounds good, we are all for it. We hear, “balanced budget amendment”, and think, “I have to balance my budget; they should have to balance theirs.” So we don’t read the amendment, we just assume they will have to balance theirs the same way we balance ours – by cutting spending.
But that is not what the BBA does. In effect, it redefines “balancing the budget” to mean spending no more than your income plus the additional debt you incur to finance your spending. To illustrate: If your income is $100,000 a year; but you spend $175,000 a year, you “balance” your budget by borrowing the additional $75,000. See?
Under the BBA, Congress may continue to spend whatever it likes and incur as much new debt as it pleases – as long as 26 States agree. And since the States have become major consumers of federal funding, who doubts that they can’t continue to be bought? Federal grants make up almost 35% of the States’ annual budgets! The States are addicted to federal funds – who thinks they won’t agree to get more money?
The BBA enshrines Debt as a permanent feature of our Country; gives it constitutional approval; does nothing to reduce spending or “balance the budget”; authorizes a new national tax; and wipes out the “enumerated powers” limitation on the federal government.
Let’s look at the BBA, section by section, using plain and honest English. And then let’s look at how our Framers wrote our Constitution to strictly control federal spending.
Compact for America’s BBA
Section 1 says the federal government may not spend more than they take from you in taxes or add to the national debt. [Yes, you read that right.]
Section 2 accepts debt as a permanent feature of our Country – the “Authorized Debt”. This is the maximum amount of debt the federal government may incur at any given point in time.
- Initially, when the Amendment is ratified, the “authorized debt” may not be more than 105% of the then existing national debt. So! If the national debt is $20 trillion when the Amendment is ratified, the federal government may not initially add more than 105% of $20 trillion [or $1 trillion] to the national debt.
- After that initial addition to the national debt, the “authorized debt” may not be increased unless it is approved by State Legislatures as provided in Section 3.
Section 3 says whenever Congress wants, it may increase the national debt if 26 of the State Legislatures agree. [Yes, you read that right.]
Section 4 says whenever the national debt exceeds 98% of “the debt limit set by Section 2”, the President shall “impound” sufficient expenditures so that the national debt won’t exceed the “authorized debt”. And if the President doesn’t do this, Congress may impeach him!
This is a hoot, Folks! I’ll show you:
- No debt limit is set by Section 2! The national debt can be increased at any time if Congress gets 26 State Legislatures to agree. Can 26 States be bought?
- Section 6 defines “impoundment” as “a proposal not to spend all or part of a sum of money appropriated by Congress”. Who believes Congress will impeach the President 2 for failing to “impound” an appropriation made by Congress?
Section 5 says any new or increased federal “general revenue tax” must be approved by 2/3 of the members of both houses of Congress.
Now pay attention, because this is a monstrous trick to be played on you: Section 6 defines “general revenue tax” as “any income tax, sales tax, or value-added tax” levied by the federal government.
And when you read the first sentence of Section 5 with the definition of “general revenue tax” in place of “general revenue tax”, you see that it says:
“No bill that provides for a new or increased income tax, sales tax, or value-added tax shall become law unless approved by a two-thirds roll call vote…”
Do you see? This permits Congress to impose a national sales tax or value added tax in addition to the income tax, 3 if 2/3 of both houses agree. [Yes, you read that right.]
But the trickery of the drafters of this evil piece of work is even worse. Section 5 also says that any bill for a new sales tax which would replace the federal income tax need only be approved by a simple majority of the members of both houses.
This makes most readers believe that the income tax would be replaced by a sales tax.
But the Amendment does not require Congress to introduce a sales tax to replace the income tax. [Remember, that sales tax requires only a simple majority to get passed.]
Whereas it authorizes Congress to impose a sales tax or value-added tax in addition to the income tax! [This sales tax requires a 2/3 majority to get passed.]
Do you see? Are they tricky or what!
And which option will Congress choose?
Section 6 sets forth the definitions for the amendment. As you see, you must always read the definitions and apply them to the text.
Section 7 says the Amendment is “self-enforcing”. Rubbish! No Constitution or amendment is “self-enforcing”. There is only one way to enforce our Constitution: WE THE PEOPLE, who are “the natural guardians of the Constitution” (Federalist No. 16, next to last para), enforce it by learning it and by throwing out politicians who ignore it. And we must always be on guard against the wolves who seek to destroy it.
Nick Dranias, on the Board of Directors for the Compact for America , is a constitutional lawyer. History professor, Kevin R. C. Gutzman, on the Advisory Council, is a lawyer. Other prominent lawyers and a 5th Circuit Court Judge, are on the Council. They all know what their BBA really does. For a chilling disclosure of who some of these people are on the Council, see investigative journalist Kelleigh Nelson’s paper on News With Views.
How Does Our Constitution Control Federal Spending?
Our Constitution lists – itemizes – every power WE THE PEOPLE delegated to the federal government when we ratified the Constitution. These are the “enumerated powers”. Article I, §8 lists most of the powers delegated to Congress for the Country at large: 4
- immigration office (Art. I, §8, cl.4)
- mint (Art. I, §8, cl. 5)
- a few criminal laws (e.g., Art. I, §8, cl. 6)
- post offices & post roads (Art. I, §8, cl. 7)
- patent & copyright office (Art. I, §8, cl. 8)
- federal courts (Art. I, §8, cl. 9)
- military and citizen militia (Art. I, §8, cls. 11-16)
Various other Articles, sections, and clauses list additional objects of Congress’ spending, such as payment of the salaries of persons on the civil list (Art. I, §6, cl.1; Art. II, §1, next to last clause; and Art. III, §1).
Do you get the idea? The Constitution lists what Congress is permitted to spend money on. Its spending is limited to the enumerated powers, and the salaries of those on the civil list. If you will go thru our Constitution and highlight every power delegated to Congress and the President, you will see ALL the objects on which Congress has constitutional authority to appropriate funds. THAT is ALL – ALL – they may lawfully spend money on.
We have a debt of $17+ trillion (plus unfunded liabilities) because WE ignored our Constitution for 100 years; and Congress spent money on objects outside the scope of the enumerated powers.
This one page chart depicts the Constitution We established, and most of what Congress may lawfully spend money on. Is it not a thing of beauty? Do you want it back? Then Restore it!
Understand this: All versions of a BBA eliminate the enumerated powers limitations on the federal government. Under all versions, the Constitution is “fundamentally changed” to permit the federal government to do anything they want and to spend money on anything they please.
Amendments are a tricky business. And tricksters abound in our Land.
1 Compact for America is also trying to use the “compact of the states” provision & is calling for an Art. V convention. Red Flag, Folks! But for now, let’s look just at their dishonest BBA.
2 Congress always had authority to impeach and remove a President for usurpations of power – see this short Primer.
3 Section 5 also says Congress may reduce or eliminate existing income tax exemptions, deductions, or credits by a simple majority vote.
4 This paper lists all the powers delegated to Congress by our Constitution. You can learn them!
Postscript added Feb. 13, 2014:
Nick Dranias and others at Compact for America are posting here & there insisting that their BBA does not impose a new tax, because Congress already has authority to impose a sales tax or VAT tax. They say Art. I, Sec. 8, cl. 1, authorizes Congress to impose “imposts”, and that an “impost” is any kind of tax.
We must go by the original intent of “impost”. Ten or so of The Federalist Papers discuss “imposts”, and they are a tax on imports. That is quite clear. It is easy to find these Papers. The edition of The Federalist I use has a search function: just type in imposts and the list of Papers will come right up and you can read them all.
Webster’s 1828 dictionary also defines “imposts” as a tax on imports: http://1828.mshaffer.com/d/word/impost
“1. Any tax or tribute imposed by authority; particularly, a duty or tax laid by government on goods imported, and paid or secured by the importer at the time of importation. Imposts are also called customs.”
So a national sales tax is most manifestly NOT an “impost”! And yes, Dranias’ BBA imposes a new national sales or VAT tax.
By Publius Huldah.
You can not responsibly support a proposed Amendment to Our Constitution unless you have read and understand the proposal and how it would change our Constitution. You must look behind the nice sounding name! Will the Balanced Budget Amendment (BBA) really “rein in” the federal government? Will it really “show them” that they have to balance their budget the same as we do?
Or does it actually legalize spending which is now unconstitutional? Is it actually a massive grant of new constitutional powers to the President and the federal courts – a grant which will cut the Heart out of The Constitution our Framers gave us?
Amending the Constitution is serious business – and you are morally bound to get informed before you jump on The Amendment Bandwagon.
So, lay aside your giddy joy at the fact that all 47 U.S. Senate Republicans are co-sponsoring the Balanced Budget Amendment, Senate Joint Resolution 10 (March 31, 2011). Let’s go through it. What you believe the BBA will do, and what it will actually do, are two very different things indeed.
But First: How Did We Get a National Debt of $14.4 Trillion?
Congress gave us a debt of $14.4 trillion which increases at the rate of $4 billion a day. Let us look at a few of the items which comprise this $14.4 trillion debt:
Congress spent $2.6 million to teach Chinese prostitutes how to drink responsibly. Congress appropriates $147 million a year to subsidize Brazilian cotton farmers. Congress spent $3.6 million to fund a study of the sex lives of dope-smoking, menstruating monkeys. Congress paid $500,000 to paint a salmon on an Alaska Airlines passenger jet. Congress appropriates $6.9 billion a year for the National Science Foundation where they fund such research as that which revealed the amazing fact that sick shrimp do not perform as well on stamina tests as do healthy shrimp.1 Citizens Against Government Waste’s pig book shows Congress spent $16,547,558,748. on pork projects last year. In Sen. Tom Coburn’s Waste Book 2010, which lists 100 spending projects, he shows that $1.5 million was spent to spruce up apartments in Shreveport, La. before they were torn down.
All this spending – every penny of it – and trillions more which is not here listed – has one thing in common: It is all unconstitutional as outside the scope of the powers delegated to Congress in the Constitution. Congress has no constitutional authority to spend money on these projects.
So! It was Congress’ unconstitutional spending which put us in the mess we are in today.
What Does Our Constitution Permit Congress To Spend Money On?
WE THE PEOPLE ordained and established a Constitution wherein the powers WE delegated to the federal government are limited and defined – “enumerated”. Read the list at Art. I, Sec. 8! Basically, all WE gave Congress authority to do for the Country at large is international relations, commerce & war; and domestically, the creation of an uniform commercial system (weights & measures, patents & copyrights, a money system based on gold & silver, bankruptcy laws, mail delivery & road building.) Some Amendments authorize Congress to make laws protecting civil rights. That’s about it, Folks! The list of objects on which Congress may lawfully appropriate funds is short. The only significant authorized expense is the military. James Madison, Father of the U.S. Constitution, said in Federalist No. 45 (9th para):
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [boldface added]
Note that Madison contemplated that the federal government would be financed in large part by taxation on foreign commerce. That is because the constitutional powers of the federal government are so limited & defined! The States and the People are to handle everything else.
Do you now see that Our Constitution does not authorize Congress to pay for a museum for neon signs ($5.2 million), to archive memorabilia for a rock group ($615,000), or to post poems in zoos ($997,766.)? [See Sen. Coburn's Waste Book 2010]. Congress has no lawful authority to do most of what they do. They just do it because they want to, they have been doing it for a long time, and WE haven’t known enough to stop them. Our $14.4 trillion debt was caused by Congress’ spending in thousands of areas where they have no constitutional authority to spend.
My dear Friend Mark said it best here:
…the federal government’s expenditures are limited by the Constitutional grants of authority, NOT THE AMOUNT OF REVENUE THEY CAN GENERATE. [caps are Mark's].
Is the BBA Really the Solution?
So! These 47 Senate Republicans (and some in the House) are showing you how much they now “care” about fiscal responsibility by supporting the BBA. But think: Why don’t they control their spending now? The Republicans control the House – NO spending can get through the House unless the Republicans approve it. So if the Republicans really wanted to control spending and balance the budget, they could do it now. Why don’t they do it? Because they don’t want to.
Furthermore, the BBA they support with such broad smiles and glib promises of future fiscal responsibility, doesn’t make them control their spending. Instead, it would legalize spending which is now unlawful and would markedly increase the powers of the federal government. And it would do nothing to reduce spending. In short, the BBA is a Scam and a Terrible Trick.
What Would We Get From the BBA ?
In plain English, this is what the 10 Sections of the BBA mean [but read it yourself - it's very short]:
Section 1: They won’t spend more than they take in unless they vote to spend more than they take in.
Section 2: They won’t spend more than 18% of the GDP unless they vote to spend more than 18% of the GDP.
Section 3: The President will write the budget: He will designate the taxes, and what the money will be spent on. He won’t spend more than he decides to tax you for, and he won’t spend more than 18% of the GDP. The GDP is a computation made by the Bureau of Economic Analysis in the Department of Commerce, an agency under the control of the President. [Do you see? The President controls the agency which computes the number which limits his spending.]
Section 4: Congress won’t make a law raising your taxes unless they vote to raise your taxes.
Section 5: Congress won’t raise the debt limit unless they vote to raise the debt limit.
Sections 6 & 7: Congress can waive the above provisions of the BBA (except for Sec. 4 which says they can’t raise your taxes unless they vote to raise your taxes) when there is a declared war or a “military conflict” which they think justifies their waiving the above provisions of the BBA.
Section 8: Courts can’t order your taxes to be raised. [But you can bet your life that this section, together with section 3, will be seen to authorize the President to order that your taxes be raised.]
Section 9: I leave this to others to explain. But be assured the President’s minions will define stuff however he wants; make stuff “off-budget” or “on-budget” to fit his agenda.
Section 10: Congress can make laws to enforce the BBA, and can rely on numbers provided by the President who is to be given constitutional authority to order tax increases & decide how to spend the money.
So! Do you see? You get no benefit from the BBA. But it will cause us irreparable harm.
How Would the BBA Cut the Heart Out of Our Constitution?
1. It would Transform Our Constitution From One of Enumerated Spending Powers To One of General (“Unlimited”) Spending Powers.
Congress’ Powers are enumerated. Thus, the objects on which Congress may lawfully appropriate funds are limited to those listed in the Constitution. Congress has ignored the limitations on its powers for many decades – but at least the limitations are still in the Constitution, to be invoked if We The People ever repent. 2
But the BBA, by ignoring the unconstitutional objects of Congress’ spending, and by merely limiting the amount of such spending to 18% of the GDP & the taxes the President assesses, repeals the enumerated powers aspect of our Constitution. Furthermore, if Congress limited its appropriations to its enumerated powers, they could not possibly spend a sum as vast as 18% of the GDP. Thus, the BBA is clear intention to repeal the enumerated powers, and transform the federal government into one of general and unlimited powers.
Congress’ idiotic spending is now unlawful & unconstitutional. But with the BBA, it would become lawful & constitutional, as long as the total spending doesn’t exceed the limits (unless they waive the limits). With the BBA, it will become lawful for them to appropriate funds for whatever the President (who will write the budget) says! 3
2. The BBA Transfers Control of the “Purse” from Congress to the President.
The federal government didn’t even have a budget until Congress passed the Budget and Accounting Act of 1921. That “law” purported to grant budget making power (taxes & appropriations) to the President.
But the Budget Act of 1921 is unconstitutional: The Constitution places the taxing & appropriations powers squarely in the hands of Congress – not the Executive Branch; and contrary to the beliefs of indoctrinated lawyers, Congress may not “amend” the Constitution by making a law. 4
Article I, Sec. 8, cl. 1, grants to Congress the Power to lay and collect Taxes; and Art. I, Sec. 9, next to last clause, grants to Congress the Power to make the appropriations:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
Accordingly, for most of our history, Congress made appropriations as the need arose; determined the taxes, and kept records of both. [See Bruce Bartlett's excellent history of the budget process.]
Our Framers gave us an elegant system of separated powers, where Congress commands the purse – not the Executive Branch and not the Judicial Branch! In Federalist No. 78 (6th para), Alexander Hamilton outlines this separation of powers:
…The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules … The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society… 5
In Federalist No. 58 (4th para from end) Madison explains why the House alone is granted power to propose taxes (Art. I, Sec. 7, cl. 1): To protect The People from overreaching by the other branches of the federal government:
…The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing … all the overgrown prerogatives of the other branches of the government. This power over the purse may … be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance…
Ponder Hamilton’s and Madison’s words. You must understand what they are saying if we are to restore our Constitutional Republic. Otherwise, the BBA will usher in a totalitarian dictatorship.
Pursuant to the unconstitutional Budget Act of 1921, the President has been preparing the budget. Since the Budget Act is unconstitutional, the President’s preparation of the budget has been likewise unconstitutional. Section 3 of the BBA would legalize what is now unconstitutional and unlawful.
But Section 3 of the BBA does more than merely legalize the unlawful. It actually transfers the constitutional power to make the appropriations and to determine taxes to the President. Congress will become a rubber stamp.
Now look at this pretty little snare: Section 8 of the proposed BBA says:
No court of the United States or of any State shall order any increase in revenue to enforce this article. [emphasis added]
Our Constitutiondoes not grant to courts the power to “order” tax increases. So why does Sec. 8 of the BBA say they can’t do it?
It’s a trap! There is an ancient maxim of legal construction which goes like this: “The Expression of One Thing is the Exclusion of Another”:
An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. …[emphasis added]
Why does Sec. 8 of the BBA exclude the President? From this exclusion, one may reasonably infer that the intent of Sec. 8 is to permit the President to order tax increases. If the BBA is ratified, you can be sure that Presidents will claim power under Sec. 8 of the BBA to order tax increases. That inference is strengthened by the fact that Sec. 3 of the BBA transfers constitutional power over the Budget to the President.
So! The BBA surrenders the purse to the President! Our Framers understood the danger of having the sword & the purse held by one person. That is why our Constitution provides for Congress to make the decisions on taxes & appropriations; and, as pointed out in Federalist No. 72 (1st para), the President is to apply and disburse “the public moneys in conformity to the general appropriations of the legislature”.
With the BBA, Congress’ sole remaining constitutional function over taxing & spending will be to rubberstamp the dictates of the President.
3. The BBA grants judicial power over taxing & spending to the federal courts.
Article III, Sec. 2, cl. 1 states: “The judicial Power shall extend to all Cases…arising under this Constitution.”
If the BBA is ratified, it will become an Amendment to the Constitution which is subject to the judicial authority of the federal courts.
You say the BBA won’t transfer power over the purse to the President? You say Congress won’t become a mere rubberstamp whose sole remaining function over taxing & appropriations is to enact into law the dictates of the President?
Who will decide? Since this would be an issue “arising under the Constitution”, the supreme Court will decide. The Judicial Branch – a branch which Hamilton took care to point out should have no power whatsoever over The Purse.
And so five (5) people on the supreme Court will decide an issue which goes to the heart of our Constitution – an issue which the People clamoring for the BBA don’t even know exists. And remember: Our supreme Court is filled with fallen people who looked at Sec. 1 of the 14th Amendment and said it means that women may kill their babies. They looked at the 1st Amendment and said it means that Congress may regulate political speech, and courts may ban Christian speech in the public square, but it gives Westboro “baptists” a “right” to spew their filth & hate at private funerals of dead American heroes.
If the BBA is ratified, do you really want five (5) of those judges deciding this issue? 6
What is the Solution to The Financial Plight Congress has put us in?
We have 47 Republican U.S. Senators who don’t understand [or do they?] the ramifications of the BBA which some of them (most notably Senators Jim De Mint & Mike Lee) are determined to cram down our throats. Many supposedly conservative talk show hosts & pundits (most notably, Redstate.com), are carrying their water. Whether these people are fools or tyrants, I do not know; but you must learn that you can not trust anybody. You must insist that people prove what they say!
WE THE PEOPLE must reclaim our glorious Heritage. We must find & support candidates who understand the Constitution, obey it, and agree to work to dismantle the unconstitutional federal apparatus. We can eliminate the trillions of dollars of unconstitutional spending by restoring constitutional government. In an orderly fashion, we can dismantle the multitude of offices and agencies and departments of the last 100 years which harass us and eat out our sustenance.
Oh my People! The grinning politicians and pundits who promise you “fiscal responsibility” with their BBA will actually strip you of the protections of Our Constitution. Their BBA will legalize a totalitarian dictatorship. Do not be deceived by them – they are leading you astray, and their BBA will destroy us.
Oh you Proponents of this thoroughly Evil Scheme: I throw my glove in your face: Show me, if you can, where I am wrong. Or rethink your position. PH
1 Our Constitution does not authorize Congress to fund scientific research. Congress’ only power in the areas of the arts and sciences is to issue patents and copyrights (Art. I, Sec. 8, cl. 8). If Congress obeyed Our Constitution and stopped funding “scientific” research, the proponents of these idiotic studies would have to do something useful instead of sucking at the taxpayers’ teat.
2 We must repent of our desire to live at other peoples’ expense. This is the contradiction which undermines the Tea Party. Many don’t want a constitutional government of limited & enumerated powers. They just want to eliminate funding for programs they don’t like. They want their social security, their Medicare, their government retirement pensions, their perks. I beg each of you who is now living at other peoples’ expense: Are you willing to sacrifice your grandchildren so that you can keep your handouts? Or will you accept an orderly & gradual dismantlement of the unconstitutional “entitlement” programs?
3 Are you aware that federal executive agencies are forming their own SWAT teams? Are you aware that DHS is federalizing our local police and using their fusion centers to turn them into a national secret police – America’s version of the STAZI? Building Obama’s “civilian national security force” which is “just as powerful just as strong just as well funded as the military” takes money. Lots of it! The BBA will permit the President to write into the Budget the funding needed to build this armed force; and it will be under his sole & personal control.
4 Article V sets forth the exclusive methods of amending The Constitution.
5 In Federalist No. 26, Hamilton addresses how Congress is to determine (after public deliberations) the appropriations for the military; and warns that the President must never be given power over the purse respecting armed forces:
The legislature of the United States will be OBLIGED, by this provision [Art. I, Sec. 8, cl. 12], once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence…. (9th para) [capitals are Hamilton's; boldface mine]
It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature…. (12th para)
Do you see that Hamilton warned us not to trust the President with power to determine the funding for the armed forces? Learn from Hamilton & Madison. Or perish.
6 If the President disagrees with the supreme Court’s decision, he – who would, thanks to the BBA, hold both the sword & the purse – could ignore it with impunity. PH
By Publius Huldah.
Senator Jim DeMint (who should know better) is supporting The Balanced Budget Amendment. Proponents of this “fix” trumpet these supposed benefits: That the amendment would:
- Require Congress to balance the federal budget each year
- Prevent Congress from spending more than 20 percent of GDP
- Require a 2/3 super-majority vote to raise taxes
But the actual result of the proposed amendment would be to finish off (with little hope of resuscitation) our existing Constitution of enumerated powers; and create a new system where Congress’ unconstitutional legislation & spending is legitimized – as long as it is no more than 20% of the GDP.
And since Congress, the executive branch and the judicial branch already ignore the limitations the existing Constitution places on their powers (they have no lawful authority outside of their enumerated powers); it would be no time at all before they ignore the 20% limit on spending. This “emergency” or that “emergency” would arise; and soon the 20% limit would be ignored as well.
Our Constitution Created a Limited Federal Government with Enumerated Powers.
With The Constitution, WE THE PEOPLE ordained and established a Federation of States which united for the LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce & relations; and domestically, the establishment of an uniform commercial system: Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. That’s about it! Read Art. I, Sec. 8, clauses 1-16, U.S. Constitution, and you will see for yourself how few are the powers delegated to Congress.
The Federalist Papers confirm that ours is a Constitution of enumerated powers only. In Federalist No. 45 (9th para), James Madison, Father of the Constitution, says:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…” [emphasis mine]
Do you see? The objects on which Congress is authorized by the Constitution to make laws and spend money are few and enumerated. 1
Congress Violates the Existing Constitution by Legislating & Spending on Unconstitutional Objects.
The Constitution does not permit Congress to create and appropriate funds for the Departments of Agriculture, Education, Energy, Health and Human Services, Housing and Urban Development, Labor, Transportation; etc.
The Constitution does not permit Congress to appropriate funds for Independent Agencies and Government Corporations such as AMTRAK, the Advisory Council on Historic Preservation, African Development Foundation, Commodity Futures Trading Commission, Environmental Protection Agency, Pension Benefit Guaranty Corporation, Railroad Retirement Board, Small Business Administration, Social Security Administration, Tennessee Valley Administration, etc.
The Constitution does not permit Congress to appropriate funds for massive “entitlement” programs such as social security, Medicare and Medicaid.
The Constitution does not permit Congress to appropriate funds to bail out private businesses.
All these Departments, Agencies, Government corporations, Boards, Commissions, Committees, Bureaus, “entitlement programs”, Pork, and bailouts are unconstitutional as outside Congress’ Enumerated Powers.
It is this lawless & unconstitutional spending which gave us a national debt of over $14 Trillion – a debt which increases at the rate of over $4 Billion a day! It is also this lawless & unconstitutional spending which has resulted in the federal government’s increasing interference in the most intimate aspects of our lives. With obamacare, it now claims the power to decide whether we receive, or are denied, medical care: Who lives and who dies.
We can not starve The Beast if we give it a Constitutional Claim to 20% of GNP!
Think! Oh, you proponents of this truly terrible idea! According to this chart, the GNP for 2009 was $14.119 Trillion. (And was it not the 16th Amendment [another "fix"] which made it possible for The Beast to grow as big as it has?)
Giving The Beast a constitutional claim to “only” 20% of the GNP will not reign it in. We need to man up and face the real problem: Congress legislates and spends money on objects for which it has no constitutional authority.
The Answer is to Strip the Beast of its Usurped Powers!
We must systematically dismantle the unconstitutional federal departments and agencies and programs. Start by eliminating the Department of Education. [We are becoming a People notorious throughout the World for our Ignorance; so the sooner they are gone, the better.] More departments can be eliminated outright; the functions of others transferred to the States, or privatized (private charities or enterprises).
The People, our elected officials, and appointed judges & officials are ignorant of The Constitution. Yet their hubris is so great [thanks to "self-esteem"- something which is taught in the government schools], 2 they run around proposing amendments to a document they don’t understand (and have most likely never read).
Our Framers were far better educated than we are today. And unlike us, they knew how to think. We, today, can not improve on The Constitution which they, led by intellectual luminaries such as James Madison, took months, working full time, to draft. In fact, our fiscal problems, and the increasing and systematic curtailments of our Freedoms, stem directly from our ignoring The Constitution they gave us.
As a People, we have developed a cowardly mindset where we refuse to address the causes of our problems. We just want to treat the symptoms, blame-shift, and avoid the consequences. If we are overweight, we don’t want to address our eating & exercise habits. Oh no! We want a “fix” – a pill; we blame our thyroid, our genes, or the medicine we are taking; and we want other people to pay the medical expenses resulting from our own destructive habits. We apply this same destructive mindset to the Constitution. Instead of manning up and facing the cause of our problems – which is that we want to live at other peoples’ expense, and so elect politicians who promise us Plunder – we want a “fix” which permits us to blame-shift: It’s The Constitution’s fault! So we go around proposing Amendments, the ramifications of which we do not understand.
We all need to Look in the Mirror. Return to PERSONAL RESPONSIBILITY. Restore our Constitution. And Starve the Beast.
1 The Federalist Papers show again and again that ours is a Constitution of enumerated powers only. For more citations and quotes, see Why States Must Nullify Unconstitutional Acts of Congress.
2 There are, of course, some great teachers in the government & labor union controlled public schools. But they are rare jewels. PH
February 23, 2011
POSTSCRIPT (Feb. 27, 2011)
Someone asked me the following excellent question:
“Why exactly would passing a balanced budget amendment lead to more unconstitutional spending? If it is a duly-ratified amendment, then how would it authorize other spending that violates the other provisions of the Constitution?”
My conclusion is based on 3 things: A legal rule of construction, my knowledge of how lawyers & judges “think”, & my knowledge of human nature.
1. It boils down to this: Say you have a 16 year old daughter & tell her to abstain from sex until she is married. Next week, you give her a bag of condoms & tell her you will give her such a bag every month.
2. The “Rule of Construction” is this: When there are contradictory provisions, “…the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing…”. (Hamilton, Federalist No. 78, 12th para).
3. For 41 years, legal “minds” have been the “minds” I know best. The federal courts, Congress, & Executive Branch already ignore the essence of our Constitution, which is that it is one of enumerated powers only, and the list of objects on which Congress may lawfully appropriate funds is short. The Balanced Budget Amendment does not address that unconstitutional spending. All it purports to do is limit that unconstitutional spending to “only” 20% of the GDP. But if Congress restricted its spending to its enumerated objects, it could not possibly spend such a large sum as 20% of the GDP!
If Congress made laws only on its enumerated powers, there would be so few federal statutes that most federal judges would have absolutely nothing to do – Congress could cut 99% of them.
The federal government established by our Constitution is very small and has power over only those 21 or so objects delegated to them. In one of his 6 Papers on taxation, Hamilton says that the only significant expense of the federal government would be in times of War.
By not addressing Congress’ unconstitutional spending, & by approving the spending of 20% of the GDP – a sum Congress could not possibly consume if it were restricted to its constitutional powers - the balanced budget amendment impliedly repeals the enumerated powers aspect of our Constitution. The rule of Construction mentioned by Hamilton would be applied, and our Constitution would no longer be one of enumerated powers – just one with a spending cap (which, of course, as Mike Foil points out, can be exceeded in times of war, emergencies, when a certain number in Congress approve exceeding the 20%, etc.)