Politics & Policy

Preserving Our Republic as Federal Government Expands

(Photo: Orhan Çam/Dreamstime)
Curbing the constant growth of the administrative state is essential to protecting our fundamental liberties.

Editor’s Note: The following speech was delivered on January 27 in Old Saybrook, Conn., as an address to the William F. Buckley Jr. Program at Yale upon the inauguration of the James L. Buckley Award for Public Service.

When I first heard that an award was to be established in my name, I thought it a rather bad idea. That the William. F. Buckley Jr. Program should create a James L. Buckley award sounded far too incestuous. On reflection, however, I came to realize that the award isn’t about me. Rather, it is yet another tribute to my remarkable brother’s multiple powers, in this case, his power to transform other people’s lives without even trying. I am merely a prime example of its exercise. Let me explain.

Until the summer of 1965, I had lived a totally contented, interesting, and highly private life. Although I have always been interested in questions of public policy, I had never, ever given any thought to public service. Then something wholly unexpected occurred. I received a telephone call from brother Bill in which he informed me that he had decided to run for the office of mayor of New York City and, furthermore, that I was to serve as his campaign manager.

I told Bill that that last was preposterous: I was far too busy with my own work and, furthermore, I knew absolutely nothing about politics or the conduct of political campaigns. Bill, though, could be very persuasive. He explained, among other things, that as he could not possibly win, he didn’t expect the race to take very much of his time. Therefore, it would take even less of mine.

And that is how the leaders of New York’s Conservative party came to learn of my existence; and three years later, when hunting around to fill a gap, they persuaded me to run as a pro forma candidate for the U.S. Senate. As it would be an unwinnable race against a popular liberal incumbent, they assured me it would require little effort on my part. As it happens, it took a great deal of it, but I did surprisingly well. So, two years later, yielding to a boy-scout impulse to save the Republic, I ran again, this time with the hope of winning, which I did. Although rejected by an ungrateful electorate when I sought reelection in 1976, by then I had become accustomed to the security of a federal payroll and soon found employment in the State Department, and then the federal judiciary.

That is how, thanks to Bill’s telephone call, I ended up spending most of the rest of my working days in the writing, administration, or interpretation of federal laws. As a result, I have had more than the average citizen’s opportunity to observe their impact on our lives and the radical changes they have brought about in how we are governed.

To illustrate the speed with which those changes have taken place, shortly after my election, I was handed a study of Congress that had concluded that the workload of the average congressional office had doubled every five years since 1935. Given the fact that, in simpler times, Congress worked at a leisurely pace and was in session for only five or six months a year, its members could take the initial increases in stride simply by devoting more hours per day and more months per year to their work. Over time, however, the available hours and months had been exhausted and the doubling could only be accommodated by squeezing deliberation out of the legislative process. I can certify that during my own six years, I witnessed both a sharp increase in the already frenetic pace of the Senate and a decline in its ability to get very much done that could honestly be labeled “thoughtful.”

This pressure-cooker existence was the consequence of Congress’s compulsion to scratch every itch on the body politic whether it was its business or not. Beginning with the New Deal, the result has been an explosion of federal laws and regulations. In 1934, the United States Code contained a single volume of federal statutes, the work product of our Congress’s first 137 years. But just 36 years later, when I was elected to the Senate, it had grown to eleven volumes. The current edition now contains 34. But those are just the tip of the governmental iceberg because they are supplemented by an ever-expanding number of small-print regulations that have the force of law and now fill 378 volumes. Those federal laws and regulations now reach into every corner of our lives, and those affected by them must turn to their representatives in Washington for help with matters that were once handled at the state or municipal levels.

All of these legislative and constituent pressures are converting Congress from an institution that could once think problems through to responsible conclusions into one that substitutes political reflex for reflection. And to compound the injury, a harried Congress now finds it so hard to focus on the messy details of new legislation that it increasingly abdicates its constitutional responsibilities by delegating essentially legislative authority to executive agencies, thereby spawning an unaccountable administrative state; an administrative state that issues letters instructing schools on who may use which bathroom without bothering with the pesky procedures that require the scrutiny of regulations before they can take effect; an administrative state in which a president who is unable to persuade Congress to do his bidding now reaches for pen and phone to do his will.

In my view, the serious problems we face these days are in major part the result of our abandonment of the Constitution’s limits on federal authority. 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 with the gaining of independence, the Founders faced the formidable task of creating a government that could operate effectively while respecting and protecting the liberties for which the Revolution had been fought.

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. In describing the latter, James 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.

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 “the powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Tenth Amendment’s allocation of powers mirrors those of the venerable Rule of Subsidiarity which assigns governmental 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 officials who are the closest to them and most familiar with the relevant facts.

This explicit division of governmental labors proved so effective that in a lecture on our Constitution with which he found some significant flaws, the great British historian, Lord Acton, nevertheless concluded that “by the development of the principle of federalism, [the American Constitution] has produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world has seen.”

During our first 140 years, Washington largely observed those limits. But with the advent of Lyndon Johnson’s Great Society, Congress began a wholesale assumption of the states’ responsibilities. It found its authority to do so in an unfortunate Supreme Court decision that held that the Constitution’s spending clause permits Congress to use federal funds to “induce the States to adopt policies that the Federal Government itself [has no authority] to impose.” To put it crudely, the Court’s decision has empowered Congress to bribe the states to adopt Washington’s approach to matters that remain the states’ exclusive business.

These grants-in-aid programs, which are laden with the most detailed instructions, now offer federal subsidies for virtually every activity in which states and their subdivisions are engaged and have made a major contribution to the federal government’s vast expansion. In the process, they have converted the states in too many ways into mere administrators of programs created in Washington and overseen by bureaucrats who are the furthest removed from where the money is to be spent. In the process, they distort state priorities, impose ponderous regulations on myriad state and local activities, and deprive their citizens of effective control over how their taxes are to be used.

Congress has become addicted to these programs (there are now more than a thousand of them) because they deal with matters that have the most immediate impact on their constituents’ lives, such as housing, schooling, job training, potholes, you name it. Thus their creation and the securing of grants offer its members their easiest means of rubbing elbows with voters and generating the favorable headlines that will assure their reelection. As a consequence, whereas those programs distributed just $24 billion when I was elected, by 2015 that figure had reached almost $641 billion, or one-sixth of total federal spending, all for purposes that are none of Washington’s business. And to compound the injury, instead of concentrating on the critical problems that only Congress can address, its members now devote a major portion of their time on matters that remain the exclusive responsibility of the states.

In short, these 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? Three years ago, I had the temerity to write a book, Saving Congress from Itself, that proposed a single reform that would restore federalism and effect a major shrinkage of the federal government, namely the abolition of all those programs. Needless to say, Congress has thus far failed to act on my suggestion.

I suspect that I have focused in excessive detail on the developments that are undermining our constitutional order. The question we face is where do we go from here. The answer will depend on where the American people will want us to go, the language and intent of the Constitution notwithstanding.

The Framers understood that the preservation of the liberties for which the American 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 observed only so long as the public continued to understand and respect them.

Unfortunately, over the past generation, our educators have abdicated their responsibility to ground their students in the fundamentals of the American experience. As a result, today’s Millennials, who will soon constitute our largest bloc of voters, are suffering from a peculiar form of historical amnesia. They remember all our past sins, such as slavery and our treatment of the Indians. But few of them have any awareness of the constitutional and economic principles that, on the historical record, made ours the most productive, prosperous, innovative, generous, and free society the world had known; principles that are responsible for the freedoms and material well-being they take so much for granted.

In its brief history, the Buckley Program has done a remarkable job of opening student minds and exposing them to those fundamental principles and demonstrating their relevance to the problems that plague us today. In the process, this program and others like it across the country are developing cadres of articulate young leaders who, in time, could have a real impact on the political world. For that, we are all indebted to Lauren Noble for her inspiration in founding the Buckley Program and to all those whose contributions and participation have ensured its success.

But so much more needs to be done. When Benjamin Franklin was leaving Independence Hall on the final day of the constitutional convention, a woman approached him and asked, “Dr. Franklin, what kind of government have you given us?” “A Republic,” he replied, “if you can keep it.” If we can keep it. That is a challenge that every generation of Americans has had to meet, one that underscores the importance of the work being done here at Yale by the Buckley Program.

In the meantime, however, a central question remains: How do we persuade Congress to respect the limits of its own authority while bringing the administrative state under effective control? More fundamentally, how do we ensure the survival of the Republic that Ben Franklin and the other Founding Fathers have entrusted to our care? That is the challenge we all face in the years immediately ahead, and too much is at stake for us to fail to do our best.

In closing, I just want to say how very moved I am by the honor you have done me tonight. God bless you all.

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