the impulse to impose enlightenment on them. But perhaps, in the fullness of time, Washington might learn to set aside the arrogance that assumes that the citizens of the several states cannot be trusted to govern themselves.
I recognize that my modest proposal would require an uncommon substitution of philosophy for politics; but ours, after all, is a system uniquely based on a philosophical conception of the nature of man and of the limits of human institutions. Those limits are now being tested; and perhaps it is not altogether romantic to hope that necessity, if not philosophy, will lead us to rediscover the robust federalism that in times past provided this nation with such extraordinary strength, and flexibility, and freedom.
As political philosophers, the delegates to the Constitutional Convention understood that they had accomplished something profoundly important. As realists, they also understood that the protection of the new Constitution would be a never-ending task. As Benjamin Franklin left Independence Hall on the last day of the convention, a woman asked him: “Dr. Franklin, what kind of government have you given us?” He answered, “A republic, madam, if you can keep it.” That is the challenge that each generation of Americans has had to face. That challenge will soon be yours.
Good luck.
When I first raised these concerns, the federal government was about half as large as it is today, as measured by real dollars spent. The size of the Executive Branch has long since made a mockery of the notion of congressional oversight. There are simply too many people making too many decisions and spending too many dollars for 535 overworked members of Congress to possibly keep track of what they are doing. One can only hope that Washington’s breathtaking responses to the 2008-09 financial meltdown—the frenetic enactment of zillion-dollar bailout and stimulus bills, the takeover of car manufacturers and insurance companies, the doubling of the national debt—will shock the public into demanding reductions in both the size and the cost of the federal establishment. The tea-party phenomenon suggests that this may in fact be happening.
The Federal Bureaucracy: Servant or Master?
During my last years in the Senate, my staff and I were inundated with growing constituent complaints about the scope and arbitrary application of federal regulations. As a result, I became increasingly concerned over the enormous powers that have been entrusted to federal agencies and their potential abuse. I delivered these remarks to a meeting of the American Academy of Orthopaedic Surgeons in February 1980.
Last November, the state of Washington became the twentieth in just a year and a half in which the voters adopted a measure limiting how much their state would be allowed to tax or spend. A few months earlier, New Hampshire became the thirtieth state to call for a constitutional amendment requiring the federal government to live within its income.
All of this reflects a growing sense of political impotence and distrust. Millions of Americans feel they are being overwhelmed by events they can no longer influence, and that voting to replace one government official with another is an act of futility. There is no single cause for this disintegration of confidence, but as a veteran of six years on Capitol Hill who has had to wrestle with hundreds of constituent concerns, I am persuaded that a major source of the current discontent stems from the accelerating expansion of federal authority and the way that authority is being exercised.
In years past, citizens who had complaints with government could usually take them up with reasonably accessible state or local officials who had the authority to address them. With the explosive growth of the federal role, however, these officials have been converted in significant degree into mere administrators of programs and policies designed in Washington. Thus, today, a citizen with a grievance must be prepared to thread his way through the intimidating thickets of a federal bureaucracy that in practical effect now constitutes a fourth, extra-constitutional branch of government.
This bureaucracy is the creation of a Congress that has abdicated far too many of its legislative responsibilities. It is manned by insulated and sometimes imperious officials who wield an enormous influence over virtually every facet of American life. As they are not elected, they are not directly responsible to the people; and as they are protected by the civil-service laws, they are virtually immune to discipline by a president or by Congress. We have, in short, managed to vest these individuals with a degree of authority over others that the Founders of the Republic went to great pains to prevent anyone from acquiring.
Members of the business community have long been aware of the striking growth of bureaucratic power in the United States. But it is only recently that large numbers of Americans have come to feel themselves hemmed in and pushed around in their personal lives by tenured civil servants who seem to be responsible to no one. This is so because it is only recently that federal authority has been extended in a major way into areas having a direct and visible impact on very large numbers of ordinary citizens. Today, federal zealots are reaching into local schools, where they affect the interests of every child, and hence of every parent. Millions of workers now feel threatened by federally imposed affirmative-action programs requiring employers to hire and promote not on the basis of individual merit but on the basis of race, sex, or national origin. Small employers throughout America fear the knock on the door of one of the ubiquitous inspectors of the Occupational Safety and Health Administration.
Few agencies can match OSHA for the sheer rage and frustration its agents generate as they go about their appointed rounds. In its ten years of existence, the agency has become the symbol of the substitution of red tape for due process, and the way it has operated is instructive. The stated purposes of OSHA are laudable enough. To cite the language of the Occupational Safety and Health Act of 1970, they are “to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.”
Although there are those, such as I, who ask whether the same purposes could not be met as well by action at the state level, it has been the way OSHA has gone about preserving our human resources that has raised hackles to such a degree. Virtually every business enterprise in the country, from the smallest corner grocer to General Motors, is subject to OSHA; and to be subject to OSHA means that you can be visited by one of its investigators at any time without notice and fined on the spot for violations of regulations you not only have never heard about but in some instances couldn’t find the text of even if you had.
A few years ago, the Daily Camera in Boulder, Colorado, published an editorial recording a vignette of life with OSHA. A local businessman, the employer of six, had a visitation from an inspector who discovered a violation for which the businessman was fined $1.16. When he asked for a copy of the regulation he had allegedly violated, he was told that none was available. For the ending of this real-life drama, let me read from the editorial:
Two weeks later he received a 248-page list of OSHA regulations. There was nothing in the document about the violation he was charged with, so again he asked for a copy of pertinent regulation. After a month he received a 48-page supplement to the 248-page rule book. The new document covered his situation but did not indicate that he was violating any rule.
So the small businessman appealed the case. After four hours of hearings with seven federal officials, the charge was dismissed—in a 19-page decision.
Now, the average individual will not go to court to protest a fine of $1.16, or even $1,600. He has no practical recourse but to pay it and mutter about high-handed bureaucrats, especially where the regulatory action is patently outrageous, as in the case of a former constituent of mine. He complained to me about being fined because he had constructed a guard rail that did not meet OSHA specifications. In fact, the iron piping he had used happened to be stronger, and therefore safer, than the wooden rails stipulated in the OSHA regulation he was fined for violating.
It occurs to me that I have been using the word “bureaucrat” in a somewhat pejorative manner, for which I apologize. Federal agencies and bureaus are manned, by and large, by able men and women most of whom work hard, are dedicated, and seek to serve the public good. They often face an impossible job in trying to make sense out of sweeping congressional directives; and given Congress’s wholesale abdication of the responsibility to define precisely what