The Attorney General's Lawyer: Inside the Meese Justice Department

By Douglas W. Kmiec | Go to book overview
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6
Neighborhood: The Revival of Federalism

No one was more committed to federalism than Charles J. Cooper, my predecessor as head of OLC. How many other people have the tenth amendment, which reserves the power not delegated to the federal government to the states, framed on their wall? Raised and educated in Alabama with a strong sense of southern pride, it might be said that he has an inbred sense of "state's rights." But don't be misled by that label. Cooper, himself, would very likely not see federalism and state's rights, as the term is loosely used today, as perfectly synonymous. Chuck well understood that the constitutional convention had overcome the hapless league of friendship of the Articles of Confederation. Under the Constitution, some power had been expressly and exclusively given to the central government; other authority was to be shared. But significantly and often overlooked, some subjects were reserved for the states. To Cooper, federalism was important not just because it produced experimentation and diversity, not just because it allowed for more direct political interaction between citizen and government, but also because it was a key element of the entire federal structure. Like the separation of powers, it had been carefully calibrated by the founders to secure individual liberty.

But whatever the original calibrations, it was clear to Chuck Cooper, and to any honest appraiser of constitutional doctrine, that federalism was a principle in decline. States were often the demeaned supplicants for federal funds--the subordinate administrative units that carried out federal commands. No longer were they truly "sovereign states." This grieved Cooper greatly, and it was a concern that the President, a former governor, shared deeply. In his inaugural, remember, Ronald Reagan

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