How Congress Undermines Constitution, Federalism

A remarkable generation of men created the American Republic by turning a rebellion against the British crown in to a transformative moment in human history. One that was based on the revolutionary proposition all men are created equal and that their Creator has granted them fundamental rights that no government is allowed to ignore.

The Founders had to create a government that would be effective while protecting and respecting the liberties they had fought for when they achieved independence.

They were clear about the reality of human nature, which is the only constant in human affairs, and they did not make any illusions. They understood that the historical enemy to individual freedom was the drive for power, whether it is by an individual despot and a parliamentary majority.

So, they incorporated two safeguards into the Constitution: the separation of governmental powers, with its checks on potential abuses, and the principle of federalism underscored by the 10th Amendment’s command that all powers not assigned to the federal government be “reserved to the States respectively or to the people.”

Upon taking office, members of Congress must “solemnly swear” that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic” and “bear true faith and allegiance to the same.” 

During our first 180-odd years, Washington largely respected the Constitution’s safeguards.  But with the advent of President Lyndon Johnson’s Great Society, Congress began a wholesale assumption of the states’ responsibilities.

As I explained in my book “Saving Congress from Itself,” Congress has done that through a proliferation of federal programs that offer states grants of money for purposes that are the states’ exclusive concern with instructions governing how the money is to be spent.   

A slew of regulations-ridden programs provide federal subsidies for almost every activity that states engage in.

Although the states are not obliged to accept federal grants, experience has demonstrated that, politically, it’s virtually impossible to decline “free money” from Washington, however onerous the attached conditions.   

The result is that the states are now administrators of programs created by Washington and overseen daily by bureaucrats far removed from the actual spending.

Unfortunately, the 10th Amendment has been effectively nullified.

The Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Congress is the sole legitimate source of federal laws.

Congress has, however, a habit of passing legislation for broad-based objectives and delegating responsibility for writing rules for them to executive branch agencies. 

That habit has led to the creation of an extraconstitutional administrative state in which unelected officials both write and administer the regulations that now govern ever-wider areas of American life—regulations that have the force of law.

There are procedures for examining proposed regulations before they become effective. The administrative state can bypass them by simply writing letters. It advised schools that boys should be allowed to use girls’ bathrooms if they consider themselves girls.

Because they are so common, the state can get away with these excesses.

While Federalism today is a distant memory, it is possible to begin its restoration.

Congress must simply remove federal regulations that tell the states how to use the money. This simple reform would allow accountable state and local officials—rather than distant bureaucrats—to determine how best to meet state and local needs.

It is not always easy to be simple. Restoring the Constitution’s allocation of governmental powers will be a difficult task.

As James Madison noted in Federalist Paper 48, the Constitution’s “parchment barriers” can’t prevent the executive and legislative branches from ignoring its safeguards. Only informed citizens can do this.

Unfortunately, over the last generation, our educators have abdicated responsibility to ground students in the fundamentals and American experience.

Many Americans suffer from a strange form of historical amnesia. They can recall all of our past sins, including slavery. But too few have a sufficient awareness of the constitutional and economic principles that, on the historical record, had made ours the most productive, prosperous, innovative, generous, and free society the world had known—principles responsible for the freedoms and material well-being they take for granted. 

Because we are no longer free because of our development as an administrative government, I used the past tense.

We have always faced the challenge of preserving our republic. It now faces a new threat. As Benjamin Franklin reminded us at the close of the Constitutional Convention, while the Framers had given us a republic, it would be up to us to “keep it.”

It’s essential that Americans grasp the significance of the threats to which they are being exposed by Congress’ abandonment of the Constitution’s most important safeguards.

James L. Buckley, a former U.S. Senator from New York (1971-1977), was an undersecretary for state for international security affairs (1981-1982) and was a U.S. judge on the U.S. Circuit Court of Appeals, District of Columbia (1985-2000).

The Daily Signal offers a variety perspectives. This article is not meant to represent the views of The Heritage Foundation.

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