Has Congress Abandoned the Safeguards of the Constitution?

            The men who signed the Declaration of Independence and framed of the Constitution were part of an incredible generation. They rebelled against the most powerful nation in the world, and they won an eight-year war. Then they proceeded to create a new government create upon a new idea that all men are created equal and that rights come from God and not from government.

            The founding generation understood the true nature of humankind, and they sought to create a government that would keep the drive to gain power and influence under control. James Buckley stated that they counteracted “the drive to accumulate power” by incorporating “two safeguards into the Constitution.” The two safeguards are “the separation of governmental powers, with its checks on potential abuses, and the principle of federalism.” The Tenth Amendment underscores that “all powers not assigned to the federal government be ‘reserved to the States respectively or to the people.’” 

            Article VI of the Constitution of the United States requires that all Representatives, Senators, executive officers, judicial officers, and state legislatures affirm support for the Constitution. They “solemnly swear” that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic.” According to Buckley, they also swear to “bear true faith and allegiance to the same.”

            Buckley explained that Washington respected the Constitution’s safeguards for the first 180 or so years. However, “Congress began a wholesale assumption of the states’ responsibilities under President Lyndon Johnson’s Great Society. Buckley continued with his explanation by stating that Congress accomplished this transfer by providing federal “money for purposes that are the states’ exclusive concern with instructions governing how the money is to be spent.” In other words, Congress paid the states to fulfill the states’ responsibilities, but they required the states to perform the services under the direction of the federal government.

An avalanche of regulation-ridden programs now provide federal subsidies for virtually every activity in which states are engaged.

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.

As a consequence, the states have become administrators of programs created in Washington and overseen by bureaucrats the furthest removed from where the money is to be spent.

Regrettably, the result has been the effective nullification of the 10^th Amendment.

            Buckley continued by reminding his readers that “Congress is the sole legitimate source of federal laws.” However, Congress developed the habit of enacting legislation and then “delegating the responsibility for writing the rules for their achievement to executive branch agencies.”

That habit has led to the creation of an extra constitutional 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.

Procedures exist for subjecting proposed regulations to scrutiny before they can take effect. But the administrative state can sidestep them by simply writing letters, as it did when, without a hearing, it advised schools that boys must be allowed to use girls’ bathrooms if they think of themselves as girls.

            Buckley claimed that such actions are so common now that they are “rarely challenged. True federalism is now a memory, but Buckley said it could be restored easily. Congress could restore federalism by giving the grants without any instructions about how the money should be used. Under such a situation, state and local officials would be accountable to use the money for state and local needs.

Unfortunately, simple can be difficult. 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 an informed citizenry can do that.

            The restoration of federalism, one of the safeguards of the Constitution, depends on having “an informed citizenry.” The authors of my textbook – We The People – stated, “Most Americans know little about current issues or debates, or even the basics of ow government works” (Ginsberg et al., 2021, p. 9).

Today’s Americans are quick to claim their “Rights” outlined by the Constitution, but they are slow to accept their important responsibilities as citizens. If Americans are to safeguard the Constitution, we must gain political knowledge and become active and informed citizens.

Buckley said that the “challenge to preserve our republic has always been with us … [but] now faces an unprecedented threat.” He reminded us of the statement made by Benjamin Franklin at the close of the Constitutional Convention when asked what kind of government had been created. He said, “A republic, if you can keep it.” Congress has abandoned the constitutional safeguard of federalism. Only informed citizens will have the knowledge and power to restore the safeguard.