Federal Usurpation (1908)

Franklin Pierce (1853-19XX)


“If, in the opinion of the people, the distribution of the constitutional powers be in any particular wrong, let it be corrected in the way which the Constitution designates.

“But let there be no change by usurpation, for this, though it may in one instance be the instrument of good, is the ordinary weapon by which free governments are destroyed.”


“It is my duty and my oath to maintain inviolate the right of the States to order and control under the Constitution their own affairs by their own judgment exclusively. Such maintenance is essential for the preservation of that balance of power on which our institutions rest.”


To my wife Anna Shepard Pierce, without whose aid this book could not have been written.

January, 1908


“Evil for evil, a good despotism in a country at all advanced in civilization is more noxious than a bad one, for it is more relaxing and enervating to the thoughts, feelings, and energies of the people.”

John Stuart Mill

“As we cannot, without the risk of evils from which the imagination recoils, employ physical force as a check on misgovernment, it is evidently our wisdom to keep all the constitutional checks on misgovemment in the highest state of efficiency, to watch with jealousy the first beginnings of encroachment, and never to suffer irregularities, even when harmless in themselves, to pass unchallenged, lest they acquire the force of precedents.”


THIS book is a plea for the sacredness of the Constitution of the United States. I do not mean by this that I consider our Constitution, framed a hundred and twenty years ago, well suited to the needs of our existing government. Its rigid provisions, its system of checks and balances, are an obstacle to popular government, and they should be radically changed by amendment, but never by construction or usurpation. This book was suggested by the President’s speech at Harrisburg in 1906, in which he declared that the power of the Federal Government should be increased “through executive action . . . and through judicial interpretation and construction of law.” A little later, at the Pennsylvania Society in New York, Mr. Root, the head of the Cabinet and the close friend of the President, declared that if the people desire it “sooner or later constructions of the Constitution . . . will be found” to vest additional power in the National Government. Hitherto governmental usurpation generally has advanced by silent and gradual attacks upon constitutional safeguards. Never before in human history, I believe, has the head of a constitutional government who had sworn to protect, preserve, and defend its fundamental provisions publicly advised their subversion “through executive action and through judicial interpretation.” In recent days every abuse on the part of corporations engaged in interstate commerce has been eagerly grasped by the President as the reason for an encroachment upon constitutional guarantees, while every opposition to such encroachment has been seized as a reason for a stronger national government to put down opposition. Unless the people are stirred to a recognition of the danger of such usurpations, they will never be checked.

Well-defined usurpations of power by the National Government had a commencement in our Civil War. They gathered force during the Reconstruction period, but were slightly checked in the administrations of Presidents Hayes and Arthur and the first administration of Mr. Cleveland. In the present administration they have increased with amazing rapidity. We are told by the President that “such interpretation as the interests of the whole people demand” should be given to the Constitution, leaving this to be determined by the National Government. Impelled by such conceptions of constitutional law, a National Employers’ Liability Act, applying to railway servants, has been passed, a National Pure Food Law has been enacted, and the Department of Agriculture now claims the power of “making the standards of composition for food products.” About every industry, however remotely connected with interstate commerce, is sought to be controlled by child-labor laws, commissions, or licenses, and ere long we will fully adopt the methods of Continental Europe by which the local and domestic affairs of the people are under the supervision of the central government. Unless a determined body of citizens arise and oppose such usurpations, the doom of our state governments is already sounded.

There is no doubt that there is a natural evolution in our times toward centralization. A hundred agencies combine to bring men and industries to great central points. This tendency cannot be stopped, but centralization which results from natural causes should be sharply distinguished from concentration of power through usurpation. It is usurpation for the National Government to take over the powers of the states without employing the proper means of acquiring them through amendments to the National Constitution. “State rights,” says President Roosevelt, “should be preserved when they mean the people’s rights, but not when they mean the people’s wrongs.” Even Alexander Hamilton, the most pronounced advocate of a strong centralized national government, entertained no such conception of state rights as this. In the debates before the New York Constitutional Convention, he said:

“The state governments are essentially necessary to the form and spirit of the general system. As long, therefore, as Congress have a full conviction of this necessity, they must, even upon principles purely national, have as firm an attachment to the one as to the other. This conviction can never leave them, unless they become madmen. While the Constitution continues to be read, and its principles known, the states must, by every rational man, be considered as essential, component parts of the Union; and therefore the idea of sacrificing the former to the latter is wholly inadmissible.”

The difficulty in our day is found in the fact that when we speak of state rights the minds of men naturally go back to the Civil War and the claims of the South in that contest. We who oppose usurpation by the National Government of the rights of the states plant ourselves upon the same principles as those for which the North waged that war. The National Government has no more right to destroy the reserved powers of the states than the South had to destroy the powers delegated by the states to the National Government. The Constitution of the United States secures to the states their reserved rights in the same way that it secures the rights delegated by the states to the National Government.

In each of the chapters of this book, after the first, I have sought to gather the facts illustrating usurpations of government at some particular period or by some particular department. I am aware that it may be said that the public interest in such facts is temporary rather than permanent and that political parties will uncover these facts. Our political parties today are mere political machines living upon the spoils of office and giving little heed to great public questions. The leaders of these parties deal in glittering generalities, the one seeming to favor centralization of power in the National Government and the other espousing the cause of state rights, but it is apparent that they do not widely differ in reality as to details. The very existence of these parties depends upon extending the power of government, multiplying commissions, licenses, offices, and special privileges. Exposure of usurpations will never come from those who profit by usurpations.

The most important public affairs are unknown to the people. Law-making in the House of Representatives today is as carefully hidden in its secret committees from popular gaze as was the action of the Council at Venice in the Middle Ages. In January, 1907, Mr. De Armond introduced a bill in the House of Representatives conferring upon the President of the United States the right to remove from office, without charges and without a hearing, any one or all of the twenty-nine United States Circuit Court judges and the eighty-two District Court judges of the United States District Courts, and the bill gave him the power of appointment of new judges in their places by and with the advice and consent of the Senate. This proposed bill, conferring as despotic powers upon the President as was ever exercised by any ruler in the history of the world, was so hidden from the American people behind the door of the secret Congressional committee that probably not one citizen in a hundred thousand ever heard of its existence.

The United States Supreme Court, recognizing that the National Government is one of delegated powers, recently decided, in the case of Kansas v. Colorado, that the powers conferred upon the Supreme Court were an exception to the rule, and that as respects their judicial power there was practically no limitation. Do the people know of this proposed law and of the danger of this recent decision? Has any alarm of danger been sounded by political parties as to these measures? Are such measures questions only of temporary interest? Is there anything which should concern free men so greatly as the preservation of their freedom? The individual man is the essential unit of any society that hopes to retain the principles of growth and progress. His personal liberty is the source of personal initiative and national wealth and strength. Our progress in wealth has depended more upon that individual liberty than upon all other causes combined. But liberty has higher ends than to fire the soul of the individual to action and to urge him to the attainment of high political ends. Lord Acton well said: “Liberty is not a means to a higher political end. It is of itself the highest political end.” Liberty nourishes self-respect, self-reliance, and every impulse to a higher life. It gives birth to art, literature, and culture. It ever has been the source of all the higher impulses and aspirations of men. On the other hand, a usurping government destroys these qualities, turns the attention of the citizen to foreign politics, dazzles him with military glory, and destroys his aspirations for liberty. Surely the importance to the individual man and to our country of the preservation of liberty justifies a discussion of the present danger from usurpation of power.

Without any desire to influence men’s political associations, I have attempted in this book to show the causes of present conditions, to arouse the citizen to an appreciation of the dangers of usurpation, and to point out remedies for existing evils through amendments to the Constitution of the United States. I shall be happy if this examination may aid in any way the present growing interest in the preservation of constitutional guarantees. The age of the birth of the Constitution produced our greatest constructive statesmen. The period between 1820 and 1850, when its meaning was so thoroughly discussed, called forth the great powers of Webster and Calhoun. A nonpartisan discussion today of the dangers which exist from usurpation may happily lead to that elevation of public character and public life which will regenerate political parties and lead them to make fighting issues on the fundamental principles of government.

FRANKLIN PIERCE. December 1, 1907.