Blame the Constitution

September 15, 2005|By Evan P. Schultz

WASHINGTON - In order to understand the stakes of the Supreme Court nomination hearings this week, one need look no further than New Orleans. Because by now it should be clear that all of the unforgivable death and destruction there had an obvious cause: the Constitution.

You hadn't heard? Here's The Washington Post: "Homeland Security Secretary Michael Chertoff said one reason federal assets were not used more quickly was `because our constitutional system really places the primary authority in each state with the governor.'" So you can be excused if you thought the Federal Emergency Management Agency was at fault, but the real blame lies in Philadelphia (circa 1789).

True, the Declaration of Independence makes some noise about trying to secure the rights of "Life, Liberty and the pursuit of Happiness," which is as accurate a summary of New Orleans' values as any. Maybe if the Founders had stopped writing then, there would still only be cats on the hot tin roofs around the gulf instead of people desperate for their lives. But according to Mr. Chertoff's analysis, since we're stuck with the Constitution, New Orleans sleeps with the fishes.

Mr. Chertoff unwittingly illustrated that the apparently arcane debate on how the states and federal government share power under the Constitution isn't just about counting angels on the head of a pin. This debate on federalism literally - and distressingly - can be a matter of life and death. And now is an ideal moment for us to learn this lesson.

Mr. Chertoff's comment came during the same long weekend as the death of Chief Justice William H. Rehnquist and the nomination of Judge John G. Roberts Jr. to replace him. The fact is, Mr. Rehnquist drafted the blueprint of the federalism revolution of recent years, and many think that Mr. Roberts will write his opinions with his former boss' quills. Let's hope he doesn't.

What was Mr. Chertoff thinking? Maybe because he used to be a judge, he seems to have internalized a view of the Constitution - one that makes it more a compact of equal states rather than a memorial of those states' voluntary submission to the greater good - that owes much to Chief Justice Rehnquist.

In 1975, Mr. Rehnquist sketched out his view of the power of federalism and the concurrent limits of federal power in Fry v. United States. There, Mr. Rehnquist praised a lost age when "[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." It is also a how-to guide for restoring that age, using some fairly archaic sections of the Constitution - the Commerce Clause (giving the federal government power over interstate commerce), the 10th Amendment (reserving powers to the states) and the 11th Amendment (limiting when federal courts can act against states).

In the last decade, Mr. Rehnquist led the Supreme Court in making his plan a reality. In 1995, United States v. Lopez concerned whether Congress could pass a law prohibiting guns around schools pursuant to the power that the Constitution gives the federal government to regulate commerce. Mr. Rehnquist wrote that the court would not "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

Five years later, in United States v. Morrison, Mr. Rehnquist wielded the Commerce Clause and the 14th Amendment to strike down a law - the Violence Against Women Act - stating Congress must be prevented "from obliterating the Framers' carefully crafted balance of power between the States and the National Government."

In 2000, in Kimel v. Florida Board of Regents, the court held that the federal law against age discrimination did not apply against the states.

What's perhaps most striking about these opinions is that they force the states to take action, if anyone can. Look again at Morrison: "the Founders denied the National Government and reposed in the States" the power to act. But that left Mr. Rehnquist's supposedly "indestructible states" to ward off the crash of a Category 4 hurricane all by their lonesome. They couldn't.

So where does that leave us? Even before Chief Justice Rehnquist died, one of the clear battlegrounds on Judge Roberts was his view of federal power. Now that he has been nominated to replace Mr. Rehnquist as chief justice, Judge Roberts will receive especially close scrutiny on how far he would take such reasoning.

Maybe achingly too late, the extreme view of federalism that Mr. Chertoff uttered has finally reached a perverse high-water mark with the New Orleans flood. We should hope that it recedes as well with the poisoned waters.

Evan P. Schultz is a Washington lawyer. The views expressed are his own.

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