States’ rights suffered another blow last October, when President Clinton signed into law a $58-billion transportation bill. Tucked away amidst the election-year pork-barrel spending was a provision which, in effect, sets a nationwide drunk-driving standard. Under section 351 of the new law, state receipt of federal highway funds is made contingent upon adoption of a blood-alcohol content (BAG) intoxication standard of .08 percent. States that refuse to tailor their laws to Washington’s liking will lose a portion of their federal highway funds—two percent in 2004, four percent in 2005, six percent in 2006, and eight percent in 2007.

Nineteen states and the District of Columbia already have .08 laws, and in Massachusetts, .08 is considered evidence but not proof of impairment. The other 31 states use .10 to define drunken driving. Mothers Against Drunk Drivers and other supporters of the new law estimate that 500 lives will be saved each year. Pointing out that the average BAG level for drunks involved in fatal crashes is .17, the restaurant and alcohol industries counter that a .08 level will penalize social drinkers and hurt small business. Lost in the bickering is the propriety of penalizing a sovereign state for crafting its own BAG standard. Drunk driving is a local criminal matter; therefore, BAG levels fall within a state’s broad police powers—its reserved powers.

Unfortunately, this lack of respect for state sovereignty is hardly surprising. Prevailing Supreme Court precedent permits Congress to attach myriad strings to federal spending. In South Dakota v. Dole (1987), the Court upheld a congressional mandate directing the secretary of transportation to withhold highway funds from states with drinking ages under 21. Relying on cases from the New Deal, the Court reaffirmed that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Congressional exercise of the spending power, continued the Court, is valid so long as it is for the general welfare, the conditions imposed are unambiguous, the conditions relate to national concerns, and the conditional grant does not run afoul of other constitutional provisions. In other words, there are no real limits on congressional spending. Vague concepts such as “general welfare” and “national concerns” are hardly restrictive.

Of course, the Constitution, despite the Supreme Court’s exegesis, does impose limits on congressional spending. Article Eight, Section One permits Congress to tax and “to pay the Debts and provide for the common Defence and general Welfare of the United States.” Following this declaration is an enumeration of specific powers which would be rendered superfluous if “general welfare” was the standard. In his Virginia Resolutions, James Madison stated that the general-welfare language was “copied from the very limited grant of powers in the former articles of confederation” to ensure against misconstruction. “[I]t will scarcely be said,” Madison continued in his Report of 1799, that this language was “ever understood to be either a general grant of power” or to permit the Confederation Congress to escape the Articles’ enumeration of powers. Hence, the text and history of the Constitution belie any assertion of a spending power not connected to the enumerated powers.

For all the carping from the academy about a conservative Supreme Court, there clearly has been no conservation of the Constitution’s limits on congressional spending. Congress spends as freely as the British parliament—a body claiming ultimate sovereignty and enjoying no real limits on its power. The nationwide .08 standard is but the latest example of the transformation of our system. While the United States has continued the form of a republic with divided legislative sovereignty, the reality is much different. If Congress can tamper with states’ DUI laws, then we may safely declare that no local matter remains outside of Washington’s reach.