From The New York Times News of the Week in Review:

February 12, 1995
THE NATION: History Lessons; Would Federalists Like Their Fans?
By DAVID LAWSKY

WASHINGTON— WHEN it comes to peddling a political proposition in this town, nothing works better than dressing it up in the hallowed trappings of the Founding Fathers. Witness Senator Larry Craig, the Idaho Republican, trying to sell fellow senators on a constitutional mandate to erase the deficit.

“Let the new Federalist Papers of 1995 be crafted by this Congress to speak to the states of our nation and to tell them the virtues of a balanced budget amendment.” Thus did Mr. Craig invoke “The Federalist,” a collection of political tracts written some 207 years ago by John Jay, Alexander Hamilton and James Madison to persuade the states to ratify the Constitution.

For conservatives, “The Federalist” — really, a series of 85 op-ed pieces about the Constitution first published largely in New York newspapers — are the manifesto of constrained government. They so revere the book that one of their premier debating groups, The Federalist Society, is named after it. House Speaker Newt Gingrich recommended that each freshmen Republican in the House read it.

But what did Jay, Hamilton and Madison really think about the ideas behind the balanced budget amendment?

Not much, apparently.

The Founding Fathers were by no means free spenders; they wanted a government that could pay its debts. But in their political essays, they expressed grave reservations about the kinds of provisions that the creators of the prospective balanced budget amendment now have in mind.

At the heart of the balanced-budget proposal is a new rule that would make it tough to pass legislation permitting the country to sink further into the red. The amendment would require a supermajority, a three-fifths vote of all the members of each chamber — not merely those who are in their seats — to run an annual deficit or to borrow more money. As it stands now, Congress can bust its budget or extend its credit line any time a majority of the legislators who happen to be sitting in the House and Senate chambers votes to do so.

That seems to be the way the founders liked it. The Constitution says that a simple majority of the members in each house of Congress makes up a quorum that can do the nation’s business, whether the business is declaring war, proposing constitutional amendments to the states, ratifying treaties or impeaching a President.

Hamilton wrote in Federalist No. 22 that quorums of more than a majority are “poison” for a deliberative assembly. He was particularly worried that if a supermajority were required for a vote, a minority would have the power to stop business just by not showing up: “To give the minority a negative upon the majority (which is always the case when more than a majority is requisite to a decision) is in its tendency to subject the sense of the greater number to that of the lesser number,” Hamilton wrote. “Its situation must always savour of weakness — sometimes border on anarchy.”

Madison underscored the point in Federalist No. 58, warning that when a body required more than a majority to make decisions, “the power would be transferred to the minority.”

Now, what about the part of the proposed balanced-budget amendment that deals with taxation? The amendment specifies that a majority of all elected members — instead of a majority of those present — would have to approve new taxes. The idea, according to those who back the amendment, is to give Congress an incentive to balance the budget by cutting spending, rather than by raising more from voters.

Hamilton would not have cared much for that idea either. In Federalist No. 30, he wrote that “a general power of taxation in one shape or another” is necessary for (among other things) “the payment of the national debts contracted, or that may be contracted.” To water down the power to tax is to dilute what Hamilton, in Federalist No. 33, called “the most important of the authorities” of the Federal Government.

Madison Isn’t Laughing

If “The Federalist” can be used as a yardstick, the framers of the Constitution would also have been troubled by the fact that the proposed budget amendment has no way of enforcing its mandate, without impinging on Congress’s power of the purse. As written, the proposal calls for Congress to guess at the start of each fiscal year whether spending will be offset by taxes and other income. But if the projections turn out to be wrong (as they always do) and Government spending slips into the red, the amendment offers no course of action.

Hamilton and Madison would not have been amused. In Federalist No. 15, Hamilton wrote: “If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” So if Congress can’t do the job, who will? The courts? The President? Either choice would run afoul of what Madison wrote in Federalist No. 48: “The legislative department alone has access to the pockets of the people.”

In truth, none of this is lost on amendment backers. At a recent news conference, Mr. Gingrich, who is a historian himself, was asked about the contradictions between the principles of “The Federalist” and the principles of the balanced-budget amendment. He said he was confident that the framers of the Constitution would like the changes, and that the Federalists would hardly have allowed for amendments had they thought the Constitution perfect. “Jefferson said every generation needs its own revolution,” Mr. Gingrich added.

Yes, but then again, Jefferson did not write the Constitution or “The Federalist.” And he was a Democrat.

Photo: Alexander Hamilton, one of the writers of “The Federalist.”