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Tuesday, June 08, 2010

The Good Side of 1908

"Dr. Henry Wade Rogers, dean of the Yale Law School, delivered an address in Lexington Kentucky Tuesday evening before the Kentucky University on "The Constitution and the New Federalism." Many of the members of the bar and judges of the Kentucky court of appeals listened to the address. He said in part:
'A tendency has developed within a few years to increase the power of the federal government at the expense of the state government, and in the federal government to enhance the power of the executive department at the expense of both the judicial and legislative departments. A disposition has also manifested itself to ignore the canons of constitutional construction which heretofore have guided the courts of the country and to establish a new theory which shall give to the constitution that quality of elasticity which is the characteristic of the common law. There also appears an increasing antagonism to the courts and an attempt to create a feeling that they are anti-democratic and should be shorn of the power to nullify unconstitutional legislation. An antipathy is expressed to the limitations of power which the constitution has imposed and which the fathers reverenced and deemed necessary. These tendencies are found to some extent in both the great parties and in all sections of the country. We are threatened with a revival of federalism and with a federalism that is more extreme and radical that the leaders of the old federal party ever sanctioned. The argument proceeds on the assumption that the states have failed to perform their duty properly so that great evils have grown up which the states cannot or will not properly remedy and from which we should have been free if only the federal government had exercised the authority and not the states. That the states have not done their full duty is conceded. But that the federal government would have done better is a mere assumption and one I am not willing to accept."

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