THE BALANCE OF FEDERALISM IN UNBALANCED TIMES:
Should the Supreme Court Reconsider Its Federalism Precedents In Light of the War on Terrorism?

President Bush's extraordinary speech of September 20 rallied the nation to present a unified front against terrorism. The loudest applause, however, was reserved for President Bush's introduction of Rudolph Giuliani and George Pataki — officials of local and state government.

This small irony highlights the continuing importance of balance among national, state, and local governments as the United States confronts its first major challenge of the Twenty-first Century.

National Crises and the Concentration of National Power

In our history, wars tend to enhance national power. Not surprisingly, then, some voices have suggested that the Supreme Court's pre-September 11 efforts to reinvigorate the Constitution's limits on national power are now out of step with current imperatives.

Linda Greenhouse, for example, recently wrote that "the era of states' rights decisions, a luxury of tranquil times, now seems like a vestige of bygone era." And others have expressed similar views. Such statements confirm the ability of even the most astute observers to interpret current events as confirming their previously-held views.

Consider, by way of comparison, the missile defense debate. For people who opposed missile defense before September 11, the tragic events of that day confirmed the futility of such defenses. For proponents of missile defense, on the other hand, the terrorist attacks reminded us that the world is a dangerous place in which all possible defensive measures should be taken.

We should resist this temptation to turn the tragedy into a mirror in which we see vindication of our own views — particularly when it comes to federalism.

Federal Powers Remain Broad, Despite Court Decisions

Even the most partisan proponents of state autonomy acknowledge important areas of national responsibility. And anyone's short list of those areas would include securing the nation against foreign threats, investigating multi-state criminal conspiracies, and ensuring the safety of the nation's air transport system. Nothing in the Court's effort to revive constitutional limits on federal power will stand in the way of the President and Congress as they respond to terrorist attacks.

The Court's decisions have instead generally invalidated federal laws where no plausible justification for national action exists, such as the federal Gun Free School Zones Act, which merely duplicated laws already in force in almost all the states. At the same time, the Court has reaffirmed broad federal power to address problems of national scope. There is no doubt, for example, that the Rehnquist Court would uphold (without dissent) a federal law nationalizing airport security, or expanding the investigatory powers of the FBI, if such a law were challenged on the basis that it was the exclusive province of the states. And while the Court's 1997 decision in Printz v. United States might limit the new Director of Homeland Security's ability to compel state and local law enforcement to participate in counter-terrorism operations, does anyone doubt that state and local officials will jump at any chance to cooperate with federal security efforts? Such cooperation is guaranteed by the same sorts of political forces that prevent most egregious federal incursions on state autonomy.

If constitutional challenges are mounted to new security measures, they will most likely be based on the Constitution's protections of free speech, press, and individual privacy. But most have been careful to reaffirm our commitment to those values while at the same time pronouncing the Court's limits on the federal government obsolete.

The Renewed Importance of State and Local Governments

The truth is that while the attacks showed us the importance of federal power, they also reaffirmed the importance of the vital state and local governments that the Court's decisions have sought to protect. The rescue workers who responded with such valor and sacrifice at the World Trade Center were overwhelmingly officers of local and state governments. The National Guardsmen patrolling our airports are part of a joint federal and state force. And we will continue to depend on state and local law enforcement to provide the first and sometimes last line of defense against future terrorist attacks.

More broadly, as Washington turns its attention to fighting a war on terrorism, we may increasingly have to rely on state and local governments to address the fundamental policy concerns of daily living. Those governments have always had primary responsibility for a wide variety of low profile but critically important concerns, from the quality of local schools to implementation of welfare and environmental policy to the enforcement and reform of contract, tort, and property law. Now, with the federal agenda and budget increasingly focused on terrorism and foreign policy, reform in these more prosaic areas will have to come from state capitols and city halls.

Federalism and Freedom

Most importantly, we should remember that the autonomy of the states and the idea of limited national power are no less important bulwarks of individual liberty than the more familiar provisions of the Bill of Rights.

The Framers of our Constitution, after all, originally thought that a bill of rights would be unnecessary to protect freedom so long as the Constitution's structure limited the authority of the federal government. Our history has since demonstrated the importance of specific provision for particular rights. But nothing in our experience suggests that the original safeguards of federalism and separation of powers have become irrelevant or obsolete.

State autonomy and diversity continues to allow people unhappy with the legal regime in one state to vote with their feet and move to another. State governments also continue to provide rallying points and proving grounds for experimentation and opposition to national policies. Indeed, both our current President and his predecessor used their positions in state government as a launching pad to change the direction of policy in Washington. In this way — as in many others — the existence and autonomy of the states helps keep our democracy fluid and viable.

All this suggests that we cannot separate the need to preserve individual liberties in wartime from the need to maintain constitutional limits on federal power. Our nation was born out of crisis and war. Our Framers chose to create a national government of limited authority, to operate in conjunction with a complex web of state and local bodies, despite the fact that they lived in a dangerous world surrounded by hostile powers. Now is not the time to forget who we are — either as a matter of individual rights or of constitutional structure.