Thomas Jefferson wrote that, in order to prevent government from becoming tyrannical, it was necessary to “tie it down with the chains of the Constitution.” But over the centuries, those who want an expansive government have loosened the Framers’ chains in many ways. In his new book Purchasing Submission, Columbia University law professor Philip Hamburger explores one of those ways: the federal government’s using money and power to augment its control over Americans. He makes a persuasive case that those tactics have enabled it to undermine federalism and freedom.

Hamburger has written previously about the unconstitutional spread of federal power. His 2014 book Is Administrative Law Unlawful? argues that the vast administrative state — the “fourth branch” of government — is inconsistent with the Framers’ concept of good governance. This harkens back to the kinds of star chamber proceedings in England that the drafters of our Constitution wanted to prevent. The people were only supposed to obey laws enacted by their elected representatives and face punishments by properly constituted courts of law, but “administrative law” violates both of those precepts.

In Purchasing Submission, Hamburger shows that the problem of unconstitutional control goes far beyond the visible administrative state, which at least must comply with statutes and is somewhat subject to judicial oversight. But when the federal government dangles money in front of state or local governments or private entities with conditions that Congress could not legislate directly, that subverts our constitutional order. He calls this a “transactional mode of control” and declares, “It is a strange mode of governance, in which Americans sell their constitutional freedoms — including their self-governance, due process, and speech — for a mess of pottage.”

Unimagined power / The Constitution places many restraints on federal power, but the Framers did not consider the possibility that the government might infringe upon people’s rights by putting conditions on receipt of its largess. That’s likely because the Framers never imagined the federal government having anywhere near the money and authority it now holds. No authority to dole out money or favors was enumerated. Why take precautions against the abuse of a non-existent power?

But as government took on additional authority, it became possible to use that authority in novel ways. Consider, for example, the Federal Communications Commission. It licenses broadcasters, and its permission to operate is conditional upon their compliance with regulations that restrict their freedom of speech. The First Amendment, of course, prohibits Congress from enacting legislation that abridges freedom of speech, but the federal government accomplishes this nonetheless by putting content restrictions on TV and radio licenses. To the objection that the government owns the airwaves and therefore is entitled to place restrictions on their use, Hamburger responds that the airwaves do not belong to the federal government but to the people.

Doesn’t it matter, however, that the broadcasters consent to the FCC’s rules when they apply for a license? No, Hamburger argues, explaining: “The Constitution is a law publicly enacted by the people. It therefore cannot be altered or excused by the consent of states or private persons.” While the Supreme Court has at times come close to grasping this point, its decisions in cases involving conditions upon federal largess have been “all over the map,” meaning inconsistent and confused. We should regard this book as a guide to future litigants who might challenge this federal overreach.

Shouldering aside / One of the cases Hamburger uses to show the Court’s unsatisfactory jurisprudence is South Dakota v. Dole (1987). The issue there was whether the federal government could insist that states adopt a drinking age of 21 if they wanted federal highway funds. The Court upheld the Department of Transportation’s condition, weakly saying that it was “germane” and therefore permissible. Hamburger maintains that Justice Sandra Day O’Connor’s dissent on the ruling ought to have carried the day:

When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition … that the state impose or change regulations in other areas of the state’s social and economic life because of an attenuated or tangential relationship to highway use or safety.

South Dakota highlights Hamburger’s great concern: the federal government is shouldering aside the states and localities, where much of our policymaking is supposed to take place, when it uses its money to dictate matters that are not properly within its purview under our federalist system. The book is full of examples of this. Consider the way that Congress has dictated state education policy through the No Child Left Behind Act. It provides just 8% of states’ educational funding but requires the states to reshape their curricula and metrics to suit federal overseers. Another education-related example is the way Title IX regulations have been used to compel colleges and universities to obey federal Department of Education dictates regarding limits on free speech and the adjudication of cases of alleged sexual harassment. If Congress were to pass these dictates as legislation, they would run afoul of First Amendment and Due Process protections. But because these are only stipulations on the use of federal funds, the government can get away with them because college administrators are eager for the public dollars.

Empowering the bureaucracy / Similarly, federal money for academic research enables government to impose speech restrictions on Americans through institutional review boards. These boards demand institutions adopt wide-ranging restrictions as a condition of receiving the money. Hamburger writes,

By means of these conditions, the federal government turns funded academic institutions into agents to regulate third parties, even researchers who do not receive government funding — subjecting them to licensing of academic speech and publication.

He contends that a great deal of harm is done by the squelching of discussion about research findings.

His disapprobation of these extensions of federal power might be met with the response that the government’s spending power to promote the general welfare allows it to place conditions on the entities that accept its money. But, Hamburger argues, there is no general welfare spending power in the Constitution. Congress is authorized to tax for certain purposes, and only a “progressive” reading of the Constitution has allowed the broadening of that power. It is bad enough that the Supreme Court has chosen to read the Constitution so as to give Congress almost carte blanche spending authority, but worse still to allow the federal government to trample upon federalism and the rights of citizens when it puts conditions on those who receive the money.

When such mandates are created and implemented by the bureaucracy, it not only displaces Congress, where the legislative power is supposed to lie, but also the courts. The agencies that impose the conditions also decide when these mandates have been violated and what penalties to impose, thus usurping the judicial function. Sometimes the agency decision is subject to judicial review (and sometimes not), but the government has a bag of tricks to deter parties from challenging it. These tricks are variants on a simple threat: “If you don’t like this, wait to see what we can do to you next.” Inducing fear allows the bureaucracy to avoid the need for formal procedures and to expand their power.

Why isn’t this problem more widely perceived? Hamburger thinks it is because the unconstitutional action does not appear to be that of the federal government at all. It is ultimately state and local officials, along with leaders of various private institutions, who tell people what they may or may not do. The government is working through agents, so its role is obscured. That, however, should make no difference. A legal maxim that applies here is qui facet per alium, facet per se: What one does through another, he does himself. It is past time to expose and stop the government’s scurrilous expansion of its proper authority.

But how? Hamburger addresses that question in his concluding chapter. Our judges — including those on the Supreme Court — have been remiss in dealing with this alternate mode of governance. They have too often ignored it or excused it. Many probably see this “purchased submission” as a good thing because it ostensibly is rule by expert civil servants overseen by administration appointees. Hamburger hopes to convince jurists (and all other readers) that it is not. Here is his plea: When the federal government acts through imposed conditions, it creates

a uniform phalanx of public and private power, often in pursuit of unconstitutional restrictions. Indeed, largely through conditions, the federal government increasingly creates an alignment of federal, state, local, educational, corporate, and other private bureaucracies. It is an unbroken wall of power that discourages legal and political resistance and renders private life vulnerable.

In ancient Athens, Demosthenes delivered a series of speeches on the looming threat of King Philip II of Macedon, in hopes of alerting Athenians while there was still time to act. Philip soon took control of Hellas. With Purchasing Submission, Hamburger has done very much the same thing for us.