Amendment? Nein, Danke (Pt. I)
As part of our apparently ongoing series on constitutional theory, and also to answer Tom Lehman's question about the extent to which I think a legislature's latitude to enact bad policy should be limited by constitutional provision, this and the following two posts will look at potential amendments that would (at least on a superficial reading) be justified by utilitarian analysis in the service of libertarianism.
We begin with this post by Glenn Reynolds (I know it's long, but bear with me):
PORKBUSTERS UPDATE: Mark Tapscott says it's time for a constitutional amendment.Now, don't be ashamed if you have to go back and review. Reynolds' writing is very subtle and contains a lot of nested, layered points (a bit like Hegel). Sometimes you have to go back and reread him two or more times to get a complete appreciation of his arguments.
Porkbusters, for those unaware, is the (generally right-of-center) blogosphere's campaign to trim wasteful/useless/idiotic appropriations out of the federal budget. In theory, I support it, although I'm skeptical of any blog-triumphalist project.
Anyway, reading Reynolds, I decided to follow the link, which is always an interesting enterprise. "What sort of constitutional amendment is Tapscott pushing for?" I thought. It must have something to do with porkbusting---that much is clear---although Reynolds often posts items with even less context or content. But what could it be? A balanced-budget amendment? Some kind of anti-pork amendment?
No. Tapscott is outraged about RINOs voting collaborating with Democrats to vote down a pork-free budget, and proposes a congressional term limits amendment.
Well, if you replaced the entire House of Representatives with 435 randomly selected citizens, it's about even money that the quality of debate, legislation, and leadership in the House would improve. That's not because the average citizen is anything to bring home to mother; it's because the average congressmen combines the brainpower of Luca Brasi with the ethics of Juan Peron. (Senators tend to be smarter, if not more ethical.)
That said, constitutionally mandated term limits are a horrible idea. Believing that the people have the right to make bad decisions about how to govern themselves is essential to being a democrat; believing that there should be limits to a sovereignty's policy-making freedom is essential to being a republican, true, but the right of the people to elect their own representatives is surely, uncontroversially, among the things within the proper scope of democratic decision making. The potential for bad, misguided, unduly influenced, whatever policy is just one of the risks of democracy. Does this mean I think that the 22nd amendment should be repealed? You betcha. The people were entitled to a third round of Reagan, and are entitled to a third round of Clinton, if that's what they want. (It's not what I want.)
P.S. Whatever the positive outcomes of congressional term limits might be---the basic one simply being that nobody gets to be in Congress for a long time---cutting down on federal pork is almost certainly not among them. It's true that indefinite terms allow individual congressmen to build up power and influence and use that power and influence to lard up every appropriations bill they get their mitts on with pet projects for their own states and districts that allow them to pad their resumes for re-election. What forcing Congressmen to retire after a few terms would do is prevent that accretion of power; it would not at all address the motive force behind pork, which is simply the desire to get elected and stay elected.
With no Robert Byrds or Don Youngs around, pork might be spread around more evenly, but it wouldn't reduce the absolute volume, or, if you will, mass of pork in appropriations. Instead of half-dessicated dirty old men rewriting appropriations bills with monuments to themselves here and there while junior members fight over the scraps, a term-limits amendment would produce a Congress of all junior members---who tend to lack the massive egos of senior members and are therefore more pliable hacks and subordinates---fighting each other furiously over a huge pool of pork-funding. It would be a bit like NFL revenue-sharing: every year, the absolute amount of pork goes up, but on any given Sunday, any district can win its own bridge to nowhere.
Whether you like things the way the are, or would prefer a congress of the latter variety is up to you (I confess I don't like either that much), but neither vision of congressional proceedings is one worth amending the Constitution for.
Tapscott's got this much right: cutting down on pork will probably require forcing a lot of incumbents out of office, but that's not sufficient. It will also require electing replacements who actually vote against wasteful appropriations.