http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251230221 Having no correspondence to communicate, it is my duty to fill up the
vacant columns of the week as well as I am able; and as this is the
last opportunity I shall have to intrude on the patience of the public
in the capacity of Editor, I shall dedicate the space that is left to
a subject of some importance.
There is a party in this country accused of an indiscriminate
opposition to the measures of government; who in their turn insinuate
an indiscriminate support of every measure calculated to increase the
power of the Executive at the expence of the interest of the country.
Like all other party accusations, these are doubtless too violent on
both sides; but I cannot help thinking that of late years, measures
have been adopted and opinions sanctioned in this country, which have
an evident tendency to stretch to the utmost the constitutional
authority of our Executive, and to introduce the political evils of
those European governments whose principles we have rejected. I do not
feel myself in any degree authorized to reflect on the motives or
undervalue the judgment of the gentlemen, whose conduct and opinions I
disapprove. With superior talents, and more ample means of
information, they may well be in the right: But these do not confer
infallibility; and therefore the tendency of the measures pursued,
however praise worthy the motives which have led to them, is a fair
object of decent and temperate discussion.
I can best illustrate my meaning by supposing a case. Let me place
myself in the Presidentâs chair, at the head of a party in this
country, aiming to extend the influence of the governing powers at the
expence of the governed; to increase the authority and prerogative of
the Executive, and to reduce by degrees to a mere name, the influences
of the people. How should I set about it? What system should I pursue?
1st. As the rights reserved by the State Governments and the bounds
and limits set by the Constitution of the Union, are the declared
barriers against the encroachments of entrusted power, my first
business would be to undermine that Constitution, and render it
useless, by claiming authority which, though not given by the express
words of it, might be edged in under the cover of general expressions
or implied powers -- by stretching the meaning of the words used to
their utmost latitude, -- by taking advantage of every ambiguity --
and by quibbling upon distinctions to explain away the plain and
obvious meaning. It would be my business to extend the powers of the
Federal Courts and of Federal Officers -- to encroach upon the State
jurisdictions -- to throw obloquy on the State Governments as clogs
upon the wheel of the General Government -- for that purpose to
promote a spirit of party among them, and subject to accusations of
disaffection those who were opposed to the measures I would pursue. In
addition to this I would now and then exercise trifling acts of
authority not granted by the Constitution, under some undefined notion
of prerogative. If by such means one encroachment should be made good,
it would be a precedent for another, until the public by degrees would
become accustomed and callous to them.
2. My next object would be to restrict by every means in my power the
liberty of the press. For the free discussion of public characters is
too dangerous for despotism to tolerate. Hence I would multiply laws
against libel and sedition, and fence round the characters of the
officers of government by well contrived legal obstacles. Whatever
should tend to bring them into contempt should be sedition, however
contemptible or reprehensible they might be. Hence too, I would
impress the idea that all who were opposed to my measures were enemies
of the government, that is (in my construction) of their country. It
should be the business of my partizans to inculcate this, and cry down
all such persons as dangerous and seditious, as disturbers of the
peace of society, and desirous of overturning the Constitution. The
obloquy induced by these charges, dwelt upon in the public prints
under my controul, and vociferously urged by the dependants of office
in private conversation, would make opposition to my measures
obnoxious and dangerous, and suppress all political conversation.
For the rest of the address, please click [1]here, and go to page 3.
References
1.
http://www.law.nyu.edu/ecm_dlv1/groups/public/@nyu_law_website__journals__journal_of_law_and_liberty/documents/documents/ecm_pro_062720.pdf Go to the link and read the rest of the Article, there is a surprise 
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