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New Orleans vs. the Constitution
by Thomas E. Brewton
09 September 2005

We forget that the Constitution created a FEDERAL republic of STATES, not a national socialist collective.

The issue of federalism has been thrust under the spotlight, both by the charges and counter-charges about failures of execution after Katrina hit New Orleans, and by the death of the Supreme Court’s Chief Justice William Rehnquist, who sought to reestablish a proper balance between the political powers of the states and of the Federal government.

Democratic and Republican liberals are loudly declaiming that the Federal government should have anticipated and prevented the lawless thuggery and inept evacuation efforts in New Orleans. What is not sufficiently recognized is that, to have that power, the Federal government must be able to impose martial law on a state instantly, whether the state desires such attention or not.

Is that what we really want? The Governor of Louisiana flatly refused it when, two days before Katrina hit, President Bush urged her to permit federalizing the evacuation and relief program.

Liberals argue out of both sides of their mouths. On the one side, they shriek that the Patriot Act grants too much power to the Federal government to scrutinize individuals’ personal lives, but on the other side demand that the Federal government deal with a Katrina situation, exercising the unilateral and concentrated power of an Adolf Hitler or Joseph Stalin.

We can’t have it both ways. There must be a sense of limits and boundaries affecting shared responsibilities.

Katrina gave us only a couple of days’ forewarning. If the Federal government is to be expected, on such short notice, to shoulder the responsibility of evacuating people and providing food, water, shelter, and protection from looters and armed bands of marauding thugs, then the President must be given the power to order the Department of Defense to move instantly into a state or a city and to take complete control of its affairs.

Giving that power to any President is opening the door to totalitarian dictatorship. It is in complete opposition to the basic principles of the Constitution.

If a President, citing emergency conditions, can unilaterally order Federal troops into any city or state, we will have given him the power that Hitler used in the Austrian Anschluss, the annexation of the Czech Sudetenland, and the occupation of the Danzig corridor.

The Constitution was intended to create a Federal government that would regulate and adjudicate activities among the states, to provide for functions that affected all states equally (such as coining money), and to maintain unified diplomatic and military relations with other nations. All other functions of government were expressly reserved to the states and to the people.

At the other end of the spectrum, liberal-socialists in both political parties have championed the socialist theory that individuals, left to their own devices, are incapable of managing their own lives, that only a collectivized government, wielding unlimited regulatory power, can provide the needs of the people.

The writer of Federalist No. 51, either Madison or Hamilton, noted that maintaining the proper balance between Federal power and the reserved powers of the states required judgment and understanding. A famous passage in No. 51 reads:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

What must be noted in that connection is that the Constitution’s checks and balances were not confined, as students are instructed today, to the three main departments of the Federal government: Congress, the presidency, and the Federal courts. The greatest of all the checks and balances were the powers not expressly granted to the Federal government, but reserved to the states.

A sense of the expected balance between the powers of the states and those of the Federal government is clearly projected in Federalist No. 45, where Madison wrote:

The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former.....

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter....

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.

The liberal-socialist vision of the Federal government as the all-providing, all-wise source of power and material benefits is totally in opposition to the understanding when the Constitution was written. Look again at Federalist No. 51, which states that diversity of interests and diffusion of power among the states is the means by which political and religious liberties are to be secured:

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

Thomas E. Brewton had the extraordinary good fortune to study political philosophy under Eric Voegelin and Constitutional law under Walter Berns. His website is The View from 1776.
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