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2012 Walter Berns Constitution Day lecture

Wednesday, October 31st, 2012

On September 13, 2012, Michael W. McConnell, Richard & Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, delivered the 2012 Walter Berns Constitution Day lecture at AEI with an address entitled “Spending, Public Debt, and Constitutional Design.”

If you missed the event, you won’t want to miss reading Professor McConnell’s remarks, which have recently been published by the Program on American Citizenship. Learn more about the event and the annual Walter Berns Constitution Day lecture here.

Professor McConnell begins his remarks:

You may have noticed we are in a presidential election year.

You can tell by the serious and sober analyses the candidates are offering for how to solve the nation’s most pressing problems. Both sides have put forward detailed plans for bringing our fiscal house into order, and the essence of the campaign is a competition to persuade the people of why one plan will have better consequences than the other. The framers would be proud of the way our democratic political system is working.

Just joking.

This year, the United States government will spend approximately $3.5 trillion. Over the last three years, federal spending has soared to peacetime record levels of over 24 percent of gross domestic product (GDP). We are borrowing forty cents out of every dollar of that $3.5 trillion. For four years in a row, the federal deficit has exceeded $1.1 trillion. These annual deficits are adding up. As our two great political parties conducted their national conventions, the accumulated federal debt reached a total of $16 trillion.

Everyone agrees this cannot and must not continue. The word du jour is “unsustainable,” which my handy political glossary defines as meaning the problem is too hard to solve.

What concerns many Americans most is not just the spending, and the taxing, and the borrowing, and the debt, but the political paralysis and ineptitude with which it is greeted.

At one great political convention, the debt clock was prominently featured, which was a sign of a certain level of seriousness about the problem. And the party clearly has some ideas about what is necessary to bring it under control. But did they explain those ideas to the American public? Did they begin to build the political argument for taking serious action? Did they make clear what they would actually do about it?

Not so much.

But that was the responsible party. For the other party, the spending appears to be a virtue, the burgeoning debt somebody else’s fault, and the deficit scarcely acknowledged as a problem. The nation is headed for fiscal catastrophe, but this scarcely warrants mention at the national convention of our largest political party.

Worse yet, the Senate has deliberately refused to pass a budget for the last three years—despite its legal obligation to do so—and Congress has not passed a single appropriations bill for the fiscal year that starts in just over two weeks. Apparently, they are afraid that if they revealed their plans for federal spending, the voters would not like what they see. So let’s not budget at all.

This systematic inattention to fiscal problems makes many of us wonder whether ordinary democratic politics is capable of dealing with issues of spending and debt. Maybe we have a structural failure of institutions.

And indeed, looking around the globe at our fellow Western democracies, we are not alone. With a few honorable exceptions—Canada, for example, and maybe Sweden, and a few others—Western democratic governments are drowning in sovereign debt, with little or no sign of political resolve to do much about it than to ask for bailouts from central banks and stronger economies.

Spending and debt are quintessential political issues, one might think. Political, not legal. Political, not constitutional. But is this necessarily so?

Just yesterday, the German constitutional court handed down one of the most significant decisions in its history, upholding the European Stability Mechanism over the constitutional claim that it yields German sovereignty to institutions that lack the essential attributes of democratic legitimacy. In Germany, there is no doubt that issues of public debt raise high questions of constitutional design.

And just last June, our Supreme Court handed down possibly the first decision in its history holding that the spending power under the United States Constitution is limited by principles of federalism.

So I want to talk about spending, public debt, and constitutional design in the United States Constitution.

Click here to continue reading “Spending, Public Debt, and Constitutional Design.”