Saving Congress from Itself. James L Buckley
incapable of focusing on critical problems long enough to resolve them. The purpose of this book is to propose a single, easily understood way of addressing both of these problems, one that should appeal to Americans across the ideological spectrum. In crafting it, I have drawn on my experience as a United States senator who has some knowledge of the temptations faced by elected officials, and as a federal appellate judge who has had to deal with the costly litigation that opaque regulations can generate. If adopted, my reform will result in a major reduction in federal spending while freeing Congress to focus on the critical national issues that are its unique responsibility. As radical as it may at first appear, my modest proposal, namely the eradication of all federal grants to state and local governments, requires no more than that members of Congress honor the principle of federalism that is embedded in the Constitution they are pledged to defend.
As a return to federalism is at the heart of my proposed reform, I will begin with a reminder of its roots and logic.
THE 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