One for the Framers


WASHINGTON -- The properly reverent reason for amending the Constitution is to revive those of the Framers' objectives that have been attenuated by political developments since the Framers left Philadelphia. An attempt at such an amendment will be voted on in the House on Monday, April 15, tax day.

It would require a two-thirds supermajority to raise taxes. The House may pass it, but only because some members who oppose it will vote for it knowing that the idea is popular but that the Senate will defeat any such amendment -- partly because the amendment would inconvenience the political class, partly because the amendment is problematic.

Any amendment that contains language the meaning of which is unclear is apt to result in mendacious evasions by the political branches of government and excessive supervision by the judicial branch. Consider the key language of the amendment as originally offered by Rep. Joe Barton, R-Texas: "Any bill to levy a new tax or increase the rate or base of any tax may pass only by a two-thirds majority of the whole number of each house of Congress."

What counts as a tax?

Is a tariff a tax? Is a user fee? If one decreases an entitlement by increasing a cost (such as a Medicare premium), is one raising a tax? Such questions may not be insoluble. Ten states with one-third of the nation's population manage to function with some sort of supermajority voting requirement regarding some taxation.

But anxiety about the prudence of loading such questions into the Constitution was one reason the key language has been replaced with this, also problematic, language:

"Any bill, resolution or other legislative measure changing the internal revenue laws shall require for final adoption in either house the concurrence of two-thirds of the members present, unless that bill, resolution or measure is determined at the time of adoption, in a reasonable manner prescribed by law, not to increase the internal revenue by more than a de minimis amount."

Polls show that people would be more ready to risk the uncertainties inherent in any radical transformation of the tax code (to a flat tax, or a national sales tax, or a consumption-based income tax) if there were a supermajority provision to reduce the risk that thorough tax reform would be a cover for raising taxes. However, the amendment's original language probably would have enabled a minority in either house to block such reform. It is unlikely that any new system could be put into place without constituting a "new tax" or increasing the "rate or base" of a tax.

Supermajority requirements, which reward both the intensity of a minority and the breadth of a majority, are hardly inconsistent with the American system. Federalism, a bicameral legislature and other facets of the constitutional system of separation of powers were designed to temper simple majoritarianism. And the Constitution's Takings clause and Contracts clause expressed the Framers' desire to give special protection to that which taxation can threaten -- the right to enjoyment of property that results from enterprise.

Expansive reading

Unfortunately, the Supreme Court's expansive construction of the Constitution's Commerce clause has given Congress powers not envisioned by the Framers of American federalism. And property rights have been substantially compromised by the rules and regulations of the administrative state.

Thus two supporters of the supermajority amendment, John McGinnis of Yeshiva University's Cardozo Law School and Michael Rappaport of the University of San Diego Law School, say the amendment "should be seen as an attempt to revive the original values of the Constitution rather than as a radical innovation."

And as an attempt to replace what cannot be revived -- the fiscal morality that said government should borrow only during recessions and wars.

Least political risk

Nowadays the political class spends as much as it can with the politically least risky mix of taxation and debt. Messrs. McGinnis and Rappaport argue that if the supermajority requirement lTC "forces Congress to finance spending with larger deficits that are even more unpopular than higher taxes, this will induce Congress to spend less than it otherwise would."

Sen. Jon Kyl, R-Ariz., the Senate's leading proponent of a supermajority requirement, says it would incline the political branches toward wholesome policies. By making tax increases more difficult, a supermajority requirement would force the political class to look to economic growth to raise revenues.

And growth reduces the temptation of the class to engage in the divisive politics of envious redistribution.

Some such amendment could represent reverent restoration of the values embodied in what the Framers did at Philadelphia.


George F. Will is a syndicated columnist.

Pub Date: 4/11/96

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