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The Left, Federalism, And The War Against Terror

Thursday, Sep. 26, 2002

On Sunday, September 22, a sterling group of constitutional and policy experts paid for an ad in the New York Times, the purpose of which was to lambaste the Bush Administration. The likes of Jane Fonda, Susan Sarandon, Ed Asner, Casey Kasem, Noam Chomsky, Gore Vidal, Edward Said, Ben (of "Ben and Jerry's") Cohen, and their darling, cop murderer Mumia Abu-Jamal, called on Americans "to RESIST the war and repression that has been loosed on the world by the Bush Administration."

No doubt inflamed by the ACLU's mission to paint the Bush Administration as a wanton violator of civil rights (as though there is no war against terror), this group has gone off the deep end. Thank God for the First Amendment, so that such views will be aired - and so that they can be definitively stamped out.

Why is it that the Left goes wild when federal power is limited by the Supreme Court in the federalism cases (which involve issues the states can just as well address), but can't abide the exercise of federal power to protect the lives of Americans imperiled by enemies who want us dead (not dead or alive, just dead)? They have it precisely backwards.

The Left--and Everyone Else--Should Be Praising the Federalism Cases

Since the mid-90's, the Supreme Court has been working to trim Congress's power to regulate the states. The Court has not obstructed the ability of any particular group to obtain its policy goals. Rather, it has determined (quite rightly) that some issues belong to the federal government and some to the state governments - meaning that groups will in some cases have to pursue their agenda on the state, not the federal level.

Nowadays, Congress desperately needs to turn its attention to the pressing issues of national security and the economy. A lot of finger-pointing is going on in the Capitol, and all the fingers have been pointed by Congress at the CIA, the FBI, and the White House. It has been disturbing, certainly, to learn that there was substantial information that could have portended the events of 9/11. But was the fault the Executive's alone? After all, Congress is supposed to be overseeing these issues, as well. That is why we have Foreign Affairs and Intelligence Committees in both Houses, isn't it?

The fact that oversight was lacking only underlines the importance of the Supreme Court's federalism cases in getting members of Congress to focus on the issues that are truly national. If members of Congress had not been so busy pursuing feel-good, look-good legislation that the states can (and usually have) covered already, they might have been able to pay attention to this country's truly national interests, and to better serve their oversight function.

Oversight only in retrospect - with interminable hearings and 20/20 hindsight - is no substitute for oversight in real time. That kind of oversight might have brought the foresight we so desperately needed.

These Are the Times That Justify an Expansion in Executive Branch Power

The ACLU and the merry band that signed onto the anti-American rhetoric in the Times on Sunday are walking down a dangerous path: they are reading the Constitution (well, to be more accurate, they are being influenced by someone who may at some point have read the Constitution) as though it is absolutely rigid, regardless of circumstance.

But they are fundamentally mistaken. The Constitution's flexibility is its greatest virtue. When danger to lives and security lurk, some rights can be curtailed for the time being.

To be sure, the burden rests on the Administration to make the case for the danger, as I discussed in my last column. However, the Left's drumbeat against the Administration admits of no circumstances when rights may be curtailed to save lives. That is the sort of rigid Constitution that cannot survive the demands of history. Common sense and judgment must be permitted to flow through the Constitution's guarantees.

The idea that the Administration is taking advantage of the crisis to expand its powers is especially unfair. This crisis in our national security flew out of the sky directly into our soil on September 11, and it is an understatement to say that the Bush Administration surely would have preferred it never happened. Who wants to feel like the weight of American lives and world security is on one's shoulders? Yet the President has no choice but to do everything within his power to try to find means of eliminating the threat, and protecting the people from it.

In sum, the Left has gotten it precisely backward: Congress's power to enact legislation that duplicates state action should be curtailed, while the executive's power to pursue terrorists should be expanded in this era. The federalism cases are essential to focusing Congress on our national and international well-being. Meanwhile, simpleminded rights-talk - which assumes that the government must somehow conduct itself as if this war were not happening - has the capacity to threaten lives.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is Her other columns on the war on terrorism may be found in the archive of her columns on this site.

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