Nathan B. Oman: Balanced budget amendment might be irrelevant

On Wednesday, Germany's Federal Constitutional Court upheld a European Union bailout fund to prop up Greece and other European countries. American conservatives enamored of a balanced budget amendment would do well to pay attention to the outcome. It shows the basic fallacy of supposing that constitutional law can solve fiscal problems.

A number of European countries have spent far more money than they receive in taxes. As the debts of Greece came due, it became clear that the country could not pay them and private markets would not roll them over. European governments, led by Germany and France, created a massive, taxpayer-funded program to lend the needed money. Not surprisingly, many German voters and politicians have balked at this, seeing it as a giveaway to feckless Greek taxpayers and the powerful French and German banks that stand to lose billions if weak European governments default.

In a very American move, bailout skeptics sued, asking the country's supreme constitutional court to void Germany's pledge to the fund. Regardless of its wisdom, such a decision would have had huge political consequences, in effect giving Germany's high court ownership of Europe's fiscal crisis. In a move that should surprise no one, the court declined the offer. To be sure, it grumbled a bit, but the decision was clear that questions of taxing and spending were for the politicians not the courts.

One of the fondest hopes of the tea-party wing of the GOP is to solve American's fiscal problems by amending the Constitution. Sen. Mike Lee of Utah, for example, insists that "[a] balanced budget amendment is the only way to ensure that Congress acts in the best interest of the country, regardless of who is in power." With a lawyer's faith in the power of paper rules, he assumes that some higher power — the courts — can make Congress balance the books.

Experience, however, suggests that judges are loath to take control of budgets. Doing so gives the judiciary ownership of the most contentious political issues without the tools or the public support to resolve them. Not surprising, most judges are likely to agree with the German court, which stated that it could not "place its own professional competence in the place of that of the lawmakers."

As every first-year law student learns, the U.S. Constitution is filled with provisions that the Supreme Court long ago decided are not legally enforceable in the courts. For example, each state is required to have "a republican form of government" but the court has declined to take control of state governments to enforce this clause.

State courts have been similarly loath to enforce constitutional provisions that give them ownership of large swaths of state government. For example, a few years ago the Arkansas Supreme Court decided to enforce that state's constitutional provision guaranteeing to each citizen an adequate education. After a few months in nominal control of the state's abysmal schools, the court issued a "just kidding" opinion and returned the issue to the political branches.

In the dreams of some lawyers, we can solve the nation's problems by simply prohibiting them in the nation's fundamental law. This, however, is an illusion born of too much time contemplating the marble temples of the law in Washington, D.C., and not enough time studying the messy realities of history and politics. Even such apparent constitutional successes as the 13th Amendment ban on slavery came after the blood and conflict of civil war had already assured slavery's death. The constitutional amendment ratified a new reality rather than creating it.

I have argued before in these pages that a balanced budget amendment is a bad idea on policy grounds. The experience of the German constitutional court, however, suggests that rather than being dangerous it might simply be irrelevant. Even if we give judges the formal ability to declare a budget unconstitutional, there is no guarantee that they will actually pull the trigger.

Nathan B. Oman is an associate professor of law at The College of William & Mary in Virginia.