Wednesday, October 12, 2005
Did the Constitution Fail New Orleans? (Part 1)
In the immediate aftermath of Hurricane Katrina, journalists and the public began asking why the effort to aid the citizens of New Orleans floundered so badly. A number of news stories, notably by the New York Times and Newhouse News Service, laid part of the blame on a defective system of governance.
Very interesting post. I certainly do believe there are parallels between the present situation and the New Deal era. We have a federalist constitution that is bursting at its seams due to growing needs for federal powers largely unforeseen by the founders. FDR was hostile to the idea of an Article V amendment, even though he could have almost certainly achieved one. The craft of constitutional interpretation has suffered ever since. Liberals have been forced to act as apologists for a too-powerful judiciary, even when the constitutional change imosed by that judiciary is wholly legitimate.
I think now would be a good time for conservatives and liberals to unite and press for an Article V amendment that modernizes the commerce clause and perhaps other clauses to reflect the modern demands placed on our federal government. Surely there is some baseline of popular consensus for a vision of federal power that extends beyond the mere authority to "regulate commerce." This amendment would please liberals by legitimizing aspects of the "New Deal Revolution", but would also please conservatives by reinvigorating an Article V/textualist based vision of constitutional change.
I disagree with the claim that the 1788 Constitution did not provide adequately for federal-state coordination in times of emergency.
In provisions largely forgotten in modern times, the Constitution specifically authorizes the federal government to commandeer state personnel in times of emergency.
In the eighteenth-century, the principal personnel of state government were the state’s militiamen: militia units, operating under the authority of the state, were responsible for maintaining security, keeping order, quelling disturbances, and for enforcing the state’s laws.
By the time of the constitutional convention, it had become clear that in certain emergency situations, the militia would be inadequate to the task of mounting a response: disturbances like Shays’ Rebellion in western Massachusetts in January 1787 had highlighted the need for a federally coordinated response to the most serious emergencies arising within the states.
Yet the revolutionary generation deplored the idea of allowing the federal government to maintain and deploy large numbers of federal troops.
The result of these competing concerns was that the 1788 Constitution permitted the federal government to bring into federal service on a temporary basis state militiamen, in order to deal with three kinds of emergencies: invasions, insurrections, and opposition to federal law.
Article I of the Constitution authorized Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Article II made the President “Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States."
So as to ensure those militiamen would be trained and equipped when called into periods of federal service, Article I further gave Congress power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”
Together, these provisions allowed for the federal government to respond to emergencies, without the need to deploy the national military or other federal personnel in large numbers.
In the early Republic, when the national government responded to emergencies, it regularly relied upon state militiamen to carry out the work under federal command
The problem, of course, is that the militia of 1788 no longer exist. One possible conclusion is that the Constitution's provisions for federal-state coordination via the militia no longer have any meaning.
A second possibility, though, is to see how the 1788 provisions can be translated to the modern era and understand them to apply today to law enforcement, emergency personnel, and other state employees who perform the duties once allocated to the militia. (Notably, the Constitution does not define the term “militia,” and, in exercising its powers, Congress itself determined who was part of the militia for constitutional purposes.)
On this reading, in dealing with emergencies, the federal government should be entitled to call these state employees into federal service. Further, just as the federal government once deployed militia units from one state to another, the federal government would be allowed to send state employees into other states where emergencies exist.
Such enlistment of state and local personnel would be limited to invasions, insurrections, and opposition to federal law. Therefore, the federal government would not be able to deploy state personnel unless a natural disaster produced (as it likely will) riots and other forms of lawlessness.
Recognizing these provisions of the 1788 Constitution and translating them to the modern context offers an alternative to reliance upon the national military for relief work.
I explore these themes in my forthcoming article, "The Security Constitution, 53 UCLA L. Rev. 1 (2005).
Brooklyn Law School
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I am unpersuaded that Katrina shows a constitutional or structural problem with disaster relief. I lay that at the feet of incompetent, or deliberately anti-government, current officials, primarily at the federal level. I do wonder whether the inadequacy of New Orleans' levees and floodwalls is at least in part a consequence of city/state/federal fragmentation. That developed over decades, and cannot be attributed to one bad administration. The Netherlands, perhaps the closest parallel, seems to have done much better. Would something closer to a unitary government done better by New Orleans?
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Did you see the latest piece by Richard Clarke in The Atlantic Monthly? The former NSC member argues that the failure in NOLA obviously wasn't an unsurmountable coordination problem. After all, the response to Hurricane Frances in 2004 was much better:
"Imagine if, in advance of Hurricane Katrina, thousands of trucks had been waiting with water and ice and medicine and other supplies. Imagine if 4,000 National Guardsmen and an equal number of emergency aid workers from around the country had been moved into place, and five million meals had been ready to serve. Imagine if scores of mobile satellite-communications stations had been prepared to move in instantly, ensuring that rescuers could talk to one another. Imagine if all this had been managed by a federal-and-state task force that not only directed the government response but also helped coordinate the Red Cross, the Salvation Army, and other outside groups.
Actually, this requires no imagination: it is exactly what the Bush administration did a year ago when Florida braced for Hurricane Frances."
Of course, 2004 was an election year...so maybe they botched it because there wasn't a strong personal incentive to act?
I was reading a iraq blog this mroning and couldnt figure out how to post this.Post a Comment
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Anyway, thanks for letting us visit : )