Posted by Eugene Volokh:
Interesting Quote from Justice Robert Jackson,
who was Attorney General under FDR and whom Roosevelt appointed to the
U.S. Supreme Court:
I . . . have been highly desirous of preserving the federalist form
and keeping vitality in it. . . . [A]t Nuremberg, it became
apparent that until Hitler had broken down the powers of the
separate German states and established a completely centralized
police administration, he wasn't able to bring about the
dictatorship. I think that the philosophy of the Tenth Amendment
reserving the undelegated powers to the people or the states ought
to be regarded as an essential part of our Bill of Rights, in the
sense that our rights are secured and made not merely by the
separation of pwoers in the federal government, but by a division
of powers between state and federal government.
The decided drift is in favor of a strengthened federal government.
I think we should draw a line between the necessity for central
regulation of commerce, in the sense of finance and trade, and the
necessity for diffused control of such things as affect civil
liberties. Because while the federal government occasionally may
make a great advance in the direction of civil liberties that the
state governments would not make -- at least in some states -- for
many years to come, they can also make a very disastrous reversal
and do more harm to civil liberties in one administration than a
state government could do in a generation . . . . I think the
potentialities of a federal, centralized police system for ultimate
subversion of our system of free government is very great.
Philip B. Kurland, Robert H. Jackson, in 4 The Justices of the Supreme
Court of the United States, 1789-1969 (L. Friedman and F. Israel eds.
1969), at 2543, 2565 (quoting taped interviews with Jackson prepared
for Columbia University's Oral History Project). Many thanks to George
Liebmann, who quoted these in an American Conservative Union
newsletter, for the pointer.
That Justice Jackson said this, of course, hardly makes it right.
Moreover, many modern supporters of constitutional restraints on the
federal government may disagree with some of what he said (for
instance, his support for "central regulation of commerce," if that
phrase is understood broadly). Still, it seems noteworthy that even in
the heyday of federal power after the New Deal, one highly prominent
New Dealer thought that federalism -- in the sense of constitutional
constraints on federal power -- was still very important.
Justice Jackson also wrote, in a majority opinion for the Supreme
Court ([1]Eisentrager v. Johnson (1950), overruled on other grounds by
Rasul v. Bush (2004)) that the Constitution didn't apply to aliens
overseas, reasoning that
If the Fifth Amendment confers its rights on all the world . . .,
the same must be true of the companion civil-rights Amendments, for
none of them is limited by its express terms, territorially or as
to persons. Such a construction would mean that during military
occupation irreconcilable enemy elements, guerrilla fighters, and
"werewolves" could require the American Judiciary to assure them
freedoms of speech, press, and assembly as in the First Amendment,
right to bear arms as in the Second, security against
"unreasonable" searches and seizures as in the Fourth, as well as
rights to jury trial as in the Fifth and Sixth Amendments. . . .
It thus seems pretty clear that he took an individual-rights view of
the Second Amendment (albeit, of course, in an offhanded aside); if he
had seen the Second Amendment as securing only the right of states, or
the right of members of state-run National Guard units, then his
argument as to the right to bear arms, and his analogy to the First,
Fourth, Fifth, and Sixth Amendments, would have been absurd: The
Second Amendment would simply be a radically different provision than
those, and even if the Constitution did apply to aliens overseas, the
Second Amendment would have still been inapplicable by its own nature.
References
1.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=339&invol=763
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