26 Aug 2009

How to Expand Federal Power

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Guest blogging today at Volokh is my former neighbor from Northumberland County, Pennsylvania, attorney and educator Thomas Cooper:

Let me place myself in the President’s chair, at the head of a party in this country, aiming to extend the influence of the governing powers at the expence of the governed; to increase the authority and prerogative of the Executive, and to reduce by degrees to a mere name, the influences of the people. How should I set about it? What system should I pursue?

.. As the rights reserved by the State Governments and the bounds and limits set by the Constitution of the Union, are the declared barriers against the encroachments of entrusted power, my first business would be to undermine that Constitution, and render it useless, by claiming authority which, though not given by the express words of it, might be edged in under the cover of general expressions or implied powers — by stretching the meaning of the words used to their utmost latitude, — by taking advantage of every ambiguity — and by quibbling upon distinctions to explain away the plain and obvious meaning. It would be my business to extend the powers of the Federal Courts and of Federal Officers — to encroach upon the State jurisdictions — to throw obloquy on the State Governments as clogs upon the wheel of the General Government — for that purpose to promote a spirit of party among them, and subject to accusations of disaffection those who were opposed to the measures I would pursue. In addition to this I would now and then exercise trifling acts of authority not granted by the Constitution, under some undefined notion of prerogative. If by such means one encroachment should be made good, it would be a precedent for another, until the public by degrees would become accustomed and callous to them.

Cooper’s Address to the Readers of the Sunbury and Northumberland Gazette, June 29, 1799

Thomas Cooper biography

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