By J. Budziszewski, April 28, 2010 in Outside the Classroom
Americans are often said to be obsessed with their Constitution. So be it. Another old saw is that history is written by the winners. That one is not so benign. For all we know, the losers might have been partly right. I think they were.
Of which winners and losers am I thinking? Let it be confessed at the outset that James Madison is one of my heroes. I hold Federalist #10, #51, #62, and #63 among the greatest of all works of political theory, and consider the opposing theories of "simple" and "efficient" government painfully naïve. Madison's reasoning about virtues, interests, and passions; about factions, separation of powers, and checks and balances; about the perils of majority tyranny and the dangers of excessive legislation—all these things have deeply influenced my thought and my teaching. I might add that the careless ad hominems that people who ought to know better cast against the Founding generation shock me in their dishonesty, and that the blithe way in which even people who appeal to the American Founding distort and misrepresent its principles scandalizes me.
These views might seem to make me a Federalist. Yet I find myself mourning the fall of the Anti-Federalists, who won for the nation the Bill of Rights but utterly failed to achieve their greater goal.
A pro-Federalist American historian once ridiculed the Anti-Federalists as "men of little vision" because of their fear that an ever-expanding central government would swallow up the powers of the states. I confess that I have never understood why this fear of theirs should be counted against them. If the historian's criticism was that they were wrong to predict such an outcome, then it is absurd, for the prediction has plainly come true. If it was that they were wrong to dread such an outcome, then it is still hard to fathom, for the central government is now far more powerful than even the Federalists desired it to be. When Congress contemplates a law, making rules about P in hopes of achieving result Q, few citizens ask any longer whether making rules about P really would bring about Q; fewer still worry about whether making rules about P is one of the things the Constitution allows Congress to do; and almost none worry about the fact that passage of federal rules about P will annihilate state policies on the subject, reducing every region and locale to a bland uniformity. Instead they ponder how nice it will be to have Q.
One way to think of the conflict between state and central power is to consider the strategies the federal government has used to magnify itself at the expense of the states. Among other things it has monopolized the authority to declare what the Constitution means; ignored the original purpose of the Tenth Amendment: to protect the concept of a government of enumerated powers; and claimed the benefit of the doubt wherever the Constitution is ambiguous about the line between state and federal power. When these gambits have failed, it has sometimes resorted to sheer force. Today, however, the stick is hardly necessary, for an even more powerful instrument has been found in the carrot. Since the passage of the Sixteenth Amendment in 1913, the federal income tax gives the federal government a much more powerful engine for raising revenue than any state government enjoys; the share of wealth taken by government taxes is many times what it was when the colonists went to war with King George over excessive taxation. This fountain of dollars makes it much easier for the federal government to get the states to do things than it ever was before, not by issuing commands, but by offering financial incentives. Do you want a national takeover of the health insurance system? Of the financial industry? Of the production of automobiles? Would you like a national set of educational regulations, or a centrally-mandated straitjacket for welfare policy? Does it annoy you that anybody, anywhere, at any time, does things differently than Washington wishes them done? Fear no more; cash-hungry state and local governments find the lure of lucre irresistible. For the ever-greater sway of the national government over the states in our century, the strategy of carrot and stick—combined, of course, with greed—probably bears a greater responsibility than all of the other strategies put together. The federal government is not only vastly more powerful than the "men of little vision" desired; it is vastly more powerful than anyone in the Founding generation desired.
So it is that, admirer of James Madison though I be, nevertheless I mourn, I lament, I decry the downfall of his Anti-Federalist opponents. Like Cato, who closed every speech to the Roman Senate by saying "Moreover, I am of the opinion that Carthage should be destroyed," I am tempted to close every lecture by saying "Moreover, I am of the opinion that the centralized administrative state should be dismantled." But of course one must never say anything like that.