Читать книгу Saving Congress from Itself - James L Buckley - Страница 10
ОглавлениеTHE CONSTITUTION’S ORIGINAL DESIGN . . . AND ITS EROSION
American independence was won and the Republic created by a remarkable generation of men who turned a rebellion against the British crown into a transforming moment in human history, one based on the revolutionary proposition that all men are created equal and are endowed by their Creator with fundamental rights that no government has the moral authority to set aside. But in attaining independence, the Founders were faced with the formidable task of creating a government that could operate effectively while protecting the liberties for which the Revolution had been fought.
In Federalist No. 51, James Madison described that challenge as follows: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” He also noted that while a “dependence on the people is, no doubt, the primary control on the government; . . . experience has taught mankind the necessity of auxiliary precautions.”
The Founders had no illusions about human nature. They understood that the drive to accumulate power, whether by an individual despot or a parliamentary majority, was the historic enemy of individual freedom. They therefore incorporated two “precautions” into the Constitution: its system of separation of powers, with its checks and balances, and the principle of federalism. In describing the latter, Madison explained:
The powers delegated by the proposed Constitution to the federal government are few and defined. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
[Federalist No. 45]
During the debates over the Constitution’s ratification, many expressed a concern that this allocation of responsibilities was not clear enough in the document itself. As a consequence, the first Congress made it explicit in the Tenth Amendment of the Bill of Rights, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The powers delegated to Congress are identified in Section 8 of Article I of the Constitution. Section 8 consists of a series of clauses identifying the grants of legislative authority that the members of the Constitutional Convention concluded were necessary to ensure the success of their new nation, such as the authority to tax and borrow, regulate foreign and interstate commerce, establish post offices, maintain military forces, provide copyright and patent protection, and exercise a half dozen other powers. Those grants are referred to as the “enumerated powers.” Implicit in this arrangement was the understanding that those not enumerated were reserved to the states or the people themselves, an understanding made explicit in the Tenth Amendment.
That reservation was critical to the Constitution’s design. The central government it created had no powers other than those specifically assigned to it by the people in their state-by-state ratifying conventions. It also explains why the Constitution’s framers saw no reason to include guarantees of the freedom of religion and speech and the other protections against governmental abuse found in the Bill of Rights that the first Congress adopted. As one of the Constitution’s principal authors, James Wilson, explained in response to objections that it did not contain a bill of rights:
There are two kinds of government; that where general power is intended to be given to the legislature and that where the powers are particularly enumerated. In the last case, the implied result is, that nothing more is intended to be given, than what is so enumerated. . . . On the other hand, when general legislative powers are given, then the people part with their authority, and . . . retain nothing. But in a government like the proposed one, there can be no necessity for a bill of rights. For . . . the people never part with their power.
[Speech to the Pennsylvania Ratifying Convention, December 4, 1787]
As the people had not granted the new government the power to enact laws relating to religion, speech, etc., there was no occasion to include protections against the abuse of powers that hadn’t been granted.
It is important to make this point about the Bill of Rights because so many Americans today do not understand that the structure of the Constitution itself is the guarantor of their freedoms rather than the Bill of Rights. The American Civil Liberties Union’s website, for example, contains the following statement: “The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration—or bill—of individual rights. It specified what the government could do but did not say what it could not do.” The answer, of course, is that the government had no authority to do anything other than what the Constitution specified it could do. Those who insisted on the adoption of the Bill of Rights, however, have been vindicated over the years, because experience has shown that the drive for power has a way of undermining the most carefully designed restraints. It is, nevertheless, a guarantee of only a handful of specific rights, however important.
The broader protection is to be found in the Tenth Amendment’s explicit statement that all authority not granted to the federal government belongs to the states or to the people. As Madison explained in Federalist No. 51, the tensions between the state and federal governments would safeguard our liberties: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments. . . . Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself [a reference to the separation of powers and checks and balances that exist within each level of government].”
It is worth noting that the Constitution’s allocation of responsibilities between two levels of government conforms with the venerable “Rule of Subsidiarity,” one that was adopted in the 1992 Treaty of Maastricht as a central constitutional principle of the European Union, however ignored in practice. It recognizes a hierarchy of responsibilities beginning with those of the individual. Under that principle, you and I are primarily responsible for managing our own lives and caring for our families, while governmental responsibilities are allocated to the lowest levels able to exercise them. Its effect is to decentralize political power and ensure, wherever feasible, that officials who are the closest to ordinary citizens and most familiar with the relevant facts will be responsible for making decisions most immediately affecting them. One significant benefit of this arrangement is that it permits states and local communities to serve as laboratories for the development of a variety of approaches to shared problems.
Those were the virtues of the federalism that its framers built into our Constitution. They consciously limited the federal government’s authority to the handful of responsibilities they thought necessary to enable their new nation to function effectively; and with the enactment of the Tenth Amendment, they explicitly preserved the states’ exclusive authority over all other proper governmental concerns. That, at least, was their intention.
Unfortunately, those who insisted on the enactment of the Tenth Amendment have proven prescient. Over the years, successive Congresses and an accommodating Supreme Court have emasculated federalism to the point where there is virtually no exercise of federal power that the Court will deem unconstitutional. This has been accomplished largely through constructions of the Constitution’s Interstate Commerce and Spending Clauses. My concern here is with the latter, which, in relevant part, empowers Congress to collect taxes and other revenues “to pay the Debts and provide for the common Defence and general Welfare of the United States.” The mischief lies in the words “general Welfare.”
During much of our history, the prevailing view was that that phrase did no more than place a limit on Congress’s authority to spend by requiring that federal expenditures serve national as opposed to state or local purposes. Beginning with the 1937 case of Steward Machine Co. v. Davis, however, the Supreme Court has held that in its pursuit of the general welfare, Congress is authorized to provide states with funds to implement programs that Congress itself has no power to write into law. In 1987, in South Dakota v. Dole, the Court declared that the deference it owed Congress was such that it is “question[able] whether ‘general welfare’ is a judicially enforceable restriction at all.” Thus in pursuit of its unchallengeable understanding of what constitutes the public good, Congress is now empowered to use federal funds to “induce the States to adopt policies that the Federal Government itself could not impose,” to quote Chief Justice Roberts’ majority opinion in the case that found the Affordable Care Act, or Obamacare, to be constitutional. This is the source of Congress’s authority to enact most of the grants-in-aid programs now in effect.
In sum, although ours is understood to be a government of limited powers, the Supreme Court has construed one of those powers as providing Congress with the ability to bribe the states to adopt policies that lie beyond its own constitutional authority to prescribe—a position that caused Justice Sandra Day O’Connor to declare, in her South Dakota v. Dole dissent: “If the spending power is to be limited only by Congress’ notion of the general welfare, the reality . . . is that the Spending Clause gives power to the Congress . . . to become a parliament of the whole people, subject to no restrictions save such as are self-imposed. This was not the Framers’ plan and it is not the meaning of the Spending Clause.” So much for James Madison’s description of the federal government’s powers as “few and defined.”
Congress’ ability to bribe is not absolute, however. As the Court held in the Obamacare case, the law’s requirement that states expand their Medicaid programs was unconstitutional because the penalty for their failure to do so was so severe (the forfeiture of existing federal Medicaid contributions) that the states would be coerced into compliance despite their sovereign right to decline. The Court, however, finds no objection to noncoercive offers of federal money that are so economically or politically irresistible that a state has little real-life alternative but to accept them along with conditions that Congress has no independent authority to impose on them.
It is beyond dispute that these developments have effectively abolished the division of governmental labors that the founding generation felt was so important to the success of their new nation. Times have changed dramatically over the past two centuries, however, so the question today is whether we are better off as a result of this expansion of the federal government’s role in American life. In addressing that question, this book will deal only with the costs and effects of the federal grants-in-aid programs that offer states and communities various sums on the condition that the funds be used to implement policies designed in Washington. Thus my references to “federal grants” or “grants-in-aid programs” are limited to those offered to states and localities as opposed, for example, to a grant to a state university in support of medical research; and when I refer to “states” as grantees, that word should be understood to include their subdivisions as well.
What is important to keep in mind is that the states are free to decline to participate in grants-in-aid programs. That represents a recognition by Congress that the programs deal with responsibilities that lie within the states’ competence. That in turn raises questions over the practical merits (the constitutional niceties aside) of Congress’s involvement in areas that lie beyond those assigned to it by the Constitution.
