Central Question

"Virtue will slumber. The wicked will be constantly watching. Consequently, you will be undone."
--Patrick Henry

In 1833, former Supreme Court Justice Joseph Story wrote Commentaries on the Constitution of the United States. In it, Justice Story articulated support for strong centralized government as expressed by the Constitution.

While Commentaries was widely acclaimed, some disagreed with Story's premise. One such man was Abel Parker Upshur. In 1840, Upshur, a lawyer from Virginia, penned a critique of Story's work entitled A Brief Enquiry into the Nature and Character of our Federal Government. In Enquiry, a portion of which can be found here, Upshur argued that the Constitution as written contained flaws that over time would increase the power and scope of the federal government far beyond the intent of the Founders. As such, his views were similar to those of the Anti-Federalists of fifty years prior.

Upshur was particularly critical of blending centralized legislative authority and democratic principles. In a population of heterogenous interests, opportunity exists for an oppressive tyranny, of the majority over the minority. Government bureaucrats are only too happy to comply with majority wishes under a democracy since the majority holds the votes from which political power flows. Upshur offers that government becomes tyrannous and oppressive in proportion to its democratic principle--a nice claim.

Upshur believed that 'true political liberty requires protection against itself' and that 'government is founded in the vices, not the virtues, of mankind.' He was pessimistic about the Constitutional system of checks and balances to provide adequate protection for individual liberty. The democratic principle and political interest would drive virtue from the checkpoints, first as the legislative arm becomes a lapdog to the majority, then to executive branch because of the State's historical tendency to raise an executive above the people. Subsequently, an interested court ices the cake.

One hundred and seventy years later, one can present compelling evidence that he was not far off in his forecast.

In Upshur's view, the best check rests with decentralization. Bringing more power to state and local levels improves people's capacity for monitoring and engagement, as well as permitting government to focus in localized needs.

Upshur's focus on state power rather than central government power is a good one and, again, one shared by many in the Anti-Federalist camp a half century before his time. The questions that flow from his premise are obvious: Is it even possible at this point to rebalance power away from the Federal government and toward the states? How could this be done given our current condition?