Abel Parker Upshaw (1790-1844) critiques Justice Joseph Story's Commentaries on the constitution of the United States and its support for expanded federal power. The expansion of federal power on the part of the Neo-Conservatives and the Liberal left has all but wiped out subsidiarity today, and Upshaw's warnings give us a sense of how we got to this point.
It is too late for the people of these States to indulge themselves in these undiscriminating eulogies of their Constitution. We have, indeed, every reason to admire and to love it, and to place it far above every other system, in all the essentials of good government. Still, it is far from being perfect, and we should be careful not to suffer our admiration of what is undoubtedly good in it, to make us blind to what is as undoubtedly evil.
When we consider the difficulties under which the convention labored, the great variety of interests and opinions which it was necessary for them to reconcile, it is matter of surprise that they should have framed a government so little liable to objection. But the government which they framed is not that which our author has portrayed. Even upon the guarded principles for which I have contended in this review, the action of the whole system tends too strongly towards consolidation.
Much of this tendency, it is true, might be corrected by ordinary legislation; but, even then, there would remain in the federal government an aggregate of powers which nothing but an enlightened and ever-vigilant public opinion could confine within safe limits. But if our author's principles be correct, if ours be, indeed, a consolidated and not a federative system, I, at least, have no praises to bestow on it. Monarchy in form, open and acknowledged, is infinitely preferable to monarchy in disguise.
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