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 (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.
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