FEDERALISM AND SEPTEMBER 11:
Why The Tragedy Should Convince Congress To Concentrate On Truly National Topics

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Oct. 25, 2001

The transcendent beauty of the United States Constitution lies in its capacity for self-correction. Over the last ten years, for example, the Supreme Court has been providing mild correctives to a Congress that came to believe that it was the only worthy and, indeed, the only necessary governing body in the country.

Enacting legislation touching on a broad range of topics better dealt with on the State or local level — ranging from the possession of guns near schools, to the protection of religious liberty, to arson prevention — Congress interposed itself whenever a photo op was possible. Yet when some suggested that Congress might be transgressing the inherent limits of federalism as set forth the Constitution, they were waved off as radicals.

Since the Supreme Court had, for over 60 years, forsworn review of the reach of Congress's power, it is no surprise that Congress came to believe "I can, therefore I will." The current Court properly acted, in some instances, to curb federal power — but the attitude that all things are federal still persisted.

Then came September 11, unforgettable and world-changing. It was no big surprise when some critics of the Court's federalism jurisprudence, including Linda Greenhouse of the New York Times, immediately announced that the terrorist attacks spelled the end of federalism, and of State and local power.

These critics, however, have failed to grasp the true lesson in the September 11 tragedy — which is precisely opposite to the lesson they have taken from it.

Congress' Responsibility to Defend the Country From Foreign Aggression

While Congress was piddling around with duplicating State laws in a remarkable number of categories, apparently no one in the Capitol was studying seriously what America would do if attacked by anthrax, which was being developed in unstable regimes around the world, or smallpox, which was well-known to have been developed in Russia in quantities that remain unaccounted for.

No one in this country is responsible for the horror of those hijacked planes; let's leave the blame squarely on the shoulders of ideologues who would make the world their followers. But the federal government is utterly, deeply responsible for the well-being of its citizens, and bears responsibility to protect them from foreign attack.

So why did it take September 11 for the government to start purchasing enough Cipro, or to subsidize research on anthrax treatments without Cipro's side effects? Why is there apparently not enough smallpox vaccine on hand for us all?

Was it that its members thought the terrorists were not sincere in their anti-American virulence? That is hard to believe. Or was it that they insulted us by following the desires we expressed based on our view of the world through unduly rose-colored glasses, rather than sticking to the rugged path of leadership in our true interest? It is Congress's constitutional responsibility to lead and protect, not to follow the momentary passions of the people.

Defense from foreign aggression is one of the most important reasons the Framers met to mend the Articles of Confederation and form the Constitution. The thirteen States, loosely confederated, were too loose an organization to conduct effective war. Therefore, the Framers sought to create a central power that could do so.

They succeeded, but the ruling body that followed has turned out to be far from perfect. Indeed, it has neglected, in some respects, its very reason for being: the power to defend the nation's citizens.

Congress's Overreaching: Far Beyond the War Power, to Local Concerns

Like the child who cannot decide which toy to pick at the toy store, Congress wrapped its avaricious arms around not just its Constitutionally-granted powers to wage war, and to tax for the national interest, and to spend, but also powers it was never given, that were retained instead by States, or even localities.

Congress sought, that is, to govern every last jot and tittle of public policy–to the point that it has become difficult to point to many truly meaningful corners left for local government, with criminal law and land use the few candidates left for local control.

And why not? It is a lot more fun delivering self-serving speeches about protecting kids from guns than it is trying to figure out how to protect the people from the lethal plans of Osama bin Laden and Saddam Hussein. The problem is that the States cannot serve the role of defending the nation from foreign aggression, and so Congress (with the President) is stuck with the harder job.

When Congress permits itself to be drawn down the path of most popular lawmaker rather than national leader, it subverts the people's interest and leaves them vulnerable to the international threats that now fill our daily newspapers. Congress cannot serve its proper role when its members' finite time and abilities are directed away from the hardest, the most important, and the truly national issues, including national preparedness and defense.

Ashcroft and Ridge: Acknowledging the Merits of State Power

Attorney General Ashcroft has plans to focus the Department of Justice on terrorism issues, and to downplay the DOJ's role in affairs that can be handled by the States. More power to him. Certainly many types of prosecutions can be handled well at the State level, leaving time for the Department of Justice to focus on crimes that have national repercussions — terrorism and related money laundering among them.

The Chicken Littles will surely be distressed, but where is the sting in this devolution of control to State and local government to the likes of former Governor Ridge, to whom the President has now entrusted homeland security? Ridge did not become supercompetent merely because he was designated a federal employee. Rather, his skills were forged in the crucible of State governing experience.

September 11's terrorist attacks and the anthrax attacks that have followed counsel continuing — not halting — the devolution of power to the States that the current Supreme Court has begun. Indeed, recognizing the States' Constitutional power is a necessary means of ensuring that our federal government devotes the time and the resources to fulfill its most important role–protecting us from our enemies.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Copyright 2001 Marci A. Hamilton.

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