Entrenching good government reforms.

• Author: Tushnet, Mark V.

Those concerned with enumerated powers, the Tenth Amendment, and limited governance have many questions about current trends in U.S. governance: Has the federal government grown too large? Is it doing too much? Has it transgressed lawful limits? Is the federal-state relationship out of balance? Assuming that the federal government has gotten too large, what can you do about it? Or, more generally, what can you do if you think that the federal government is too big, or too small, or is doing the wrong things, or is not doing what it should be doing?

The obvious answer to the two latter questions is that you win elections. The winners decide what good governance is. There are, however, two problems with that answer. First, once you win an election, you can still lose the next one. As a result, you have an interest in figuring out some method to entrench your policy positions reasonably permanently. Second, some of the things you want to do may be precluded by the existing Constitution, though people obviously disagree about what those things are. (1) The obvious remedy to both of these problems is to amend the Constitution. So to entrench your policy victories, you need to win elections first, and then you might also have to amend the Constitution.

I am actually in favor of amending the Constitution in a variety of ways. People disagree about what ought to be amended, but those differences get worked out through the amendment process. The problem with the amendment route is that politicians actually have very few incentives to seriously pursue amending the Constitution, even if they have won an election. The reason for that is two-fold, depending on the type of amendment.

The first kind of amendment is substantive. This is the type of amendment that could, for example, restrict the scope of the national government, preventing it from doing certain kinds of things. The second type of amendment is procedural, something like the amendment to let a state override national legislation. Both types of amendments present their own problems. With respect to the substantive amendments, the problem is this: A politician presumably wants to make a substantive amendment in order to enact substantive legislation. But if that politician has the votes in Congress to submit amendments to the states, then he also has the votes necessary to enact the substantive change through ordinary legislation. (2) Politicians have limited time and political capital, which means that they are more likely to use this more straightforward method of attaining their substantive goal. Then, maybe if...