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. . . The architects of the American Republic had no illusions about human nature, which is the one constant in human affairs. From their study of the history of free societies reaching back to ancient Greece, 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 safeguards into the Constitution: its system of separation of powers with its checks and balances and the principle of federalism . . .. . . The Tenth Amendment’s allocation of powers mirrors those of the venerable Rule of Subsidiarity, which assigns responsibilities to the lowest levels capable of handling them. Its effect is to decentralize political power and ensure, wherever feasible, that the decisions that most directly affect people will be made by those who are the closest to them and most familiar with both their priorities and the relevant facts . . .. . . During our first 140 years, Washington largely observed those limits. With the advent of the New Deal, however, it began chipping away at the states’ authority largely through some rather imaginative constructions of the federal government’s power to regulate interstate commerce. But with the advent of Lyndon Johnson’s Great Society, Congress began a wholesale assumption of the states’ responsibilities . . .. . . Congress found its authority to create such programs in an unfortunate Supreme Court construction of the Constitution’s Spending Clause, which empowers it to spend money “to pay the debts and provide for the common Defence and general Welfare of the United States" . . . 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 with which to implement programs that Congress itself has no power to write into law . . . the practical effect of the Court’s decision has been to empower Congress to, yes, coerce the states into adopting Washington’s approach to matters that remain the states’ exclusive responsibility.. . . [T]hese programs have effectively nullified the Tenth Amendment, and, in the process, helped undermine Congress’s ability to function effectively. But what can be done about it? Four years ago, I had the temerity to write a book with the title Saving Congress from Itself, in which I detailed the extraordinary systemic and financial costs of those programs on both state and federal levels and proposed a simple reform that would restore federalism; namely, their conversion into block grants free of federal directives telling the states how the money was to be spent. It is a reform that, at one stroke, would reduce federal spending by major amounts in administrative costs alone, rid Congress of a significant distraction from its essential national responsibilities, and restore the people’s ability to control their own state and local affairs. Needless to say, Congress has yet to act on my advice . . .. . . There is, of course, another way to restore a vigorous federalism, and that is to persuade the Supreme Court to abandon its 1937 interpretation of the Spending Clause . . . I believe there is a chance that the Supreme Court might reverse its 1937 ruling on the basis that those grants have proven to be inherently coercive. I base this on the Supreme Court’s decision in Brown v. Board of Education, which declared that racial segregation is unconstitutional. In doing so, it overturned its own 57-year-old precedent, in Plessy v. Ferguson, that held that racially segregated facilities are permissible so long as they are equal. The Court reversed Plessy on the ground that experience had proven that segregated facilities are inherently unequal. Accordingly, I can envision the Court reversing Steward Machine Co. on a showing that the grants are indeed coercive . . . . . . But whether or not the Court or Congress obliges me in this regard, we can never relax in our work to protect the Constitution, and its Framers understood this. They understood that preserving the liberties for which the Revolution had been fought would require more than what James Madison referred to as the Constitution’s parchment barriers. They recognized that, in the last analysis, the Constitution’s safeguards would be protected only as long as the public continued to understand and respect them . . .
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Topic: Defend the American Experiment by Protecting the Constitution (Read 198 times)
