The real world.

The law, lawyers, and the court.
Sept. 7 2005 4:53 PM

The Real World

Why judicial philosophies matter.

Drowning in the bathtub
Click image to expand.
Drowning in the bathtub

The devastation of New Orleans has rightly overshadowed the upcoming confirmation hearings for the next Supreme Court chief justice, and the nomination and confirmation of a replacement for Sandra Day O'Connor. But Katrina, and the nation's response to it, has much to tell us about the future of the Supreme Court. The central debates of the nominations process mirror those concerning the government's response to Katrina: How much responsibility does the government, and in particular, the federal government, have in ensuring the safety and security of the inhabitants of this country?

To conservative jurists who take a parsimonious view of federal power, the answer to that question is: not much. Their philosophy of limited government, states' rights, and local control belittles the place of the federal government in our system. To the conservative jurist, the federal government is inevitably something to be feared; they assume that centralized power only leads to a loss of liberty. This crabbed and hostile view of the role of federal government has been in evidence throughout the Katrina debacle.

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The two key constitutional commitments of those who would make government small enough to "drown in a bathtub"—as conservative Grover Norquist puts it—are the doctrines of federalism and individual property rights. Together, these two doctrines comprise what some conservatives call the "Constitution in Exile." The Constitution in Exile sees government as the enemy of individual rights. It insists that the preservation of such rights requires that government refrain from amassing power. And the individual rights it deems paramount are those of property and contract—rights that, if taken to the lengths the conservative jurists propose, would hobble government power as we now know it. The Constitution in Exile is, in many ways, the Constitution that existed before the New Deal.

Since at least the New Deal, and in some circumstances even earlier, federal officials, Supreme Court justices, and the American populace have replaced that limited vision with an alternative model of federal power. The modern constitutional vision remembers that the purpose of the Constitution is to provide for the general welfare. The general welfare in turn requires the government to affirmatively ensure the safety and security of the person, to maintain the minimal material conditions necessary to sustain one's civil and political life.

Under this vision, federal power is used to protect the weak and the vulnerable rather than harm them. Under this vision, individual rights require affirmative steps by the government, rather than passive restraint. Private power—and in the case of Katrina, the forces of nature—can pose greater threats to individual liberty than public power. It is, this New Deal vision holds, only government power that creates such liberty.

The events of Katrina, just like the crises of the Depression and World War II, have shown that state and local government simply cannot cope with large-scale social and economic catastrophes. Katrina displaced hundreds of thousands of people, many of them poor and without any resources to rebuild homes or start over. It destroyed one of the nation's most venerable cities, throwing into doubt the ability of millions more people to re-establish businesses, find employment, or continue their educations. It suspended oil and natural-gas production, affecting gasoline prices across the country. And it disrupted the commerce of the Mississippi River, crippling especially farm exports from the Midwest.

And the federal response to these cumulative disasters, late as it has come, will eventually entail the involvement of the Department of Homeland Security, the Environmental Protection Agency, the Army Corps of Engineers, the Centers for Disease Control, the Department of Energy, and numerous other federal agencies. Since that response has been until now inadequate, individual rights—to life most critically, as well as to liberty and property—have suffered. Make no mistake about it: This was a case in which more federal government would have made us freer.

Yet shrinking government even more than it's been trimmed already is precisely the goal of the Constitution in Exile. Such a Constitution is a figment. It invokes nostalgia for an agrarian society with individualistic values of self-reliance that may never have existed, and that certainly disappeared entirely more than a century ago. It is a world in which FEMA, the Department of Education, and the Department of Health and Human Services—not to mention Social Security, Medicare, and unemployment insurance—do not exist or are severely constrained.

The outrage Americans on both sides of the political spectrum have expressed toward the sluggish federal response to Katrina suggests just how divorced the Constitution in Exile, and those who reify it, is from the expectations of the great majority of the population. Those left stranded in New Orleans felt acutely the absence, the national government's abdication of responsibility, but they were hardly alone. Reporters, commentators, and politicians everywhere had no doubt that resolution of this crisis was a job for the national government—and that the national government had failed miserably. None of them could possibly support a Constitution in Exile. The very idea offends, when the need for government is so dire.

The most important lesson for political and constitutional scholars must be this: Were the Constitution in Exile to return to its allegedly rightful home in the Supreme Court, the national government would likely be prevented from taking on responsibility for any future Katrinas. After such a horrific display of what happens when the nation faces a disaster of national proportions and the national government falls short, it is clear that Judge Roberts, and Sandra Day O'Connor's replacement, should be asked if they endorse such a vision.

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