Greenhouse prediction

[Ann Althouse]

Listmembers may want to read Linda Greenhouse's piece in today's New York
Times--"Will the Court Reassert National Authority?"--suggesting that the
Rehnquist Court's new federalism will have to end as a result of recent
events.

http://www.nytimes.com/2001/09/30/weekinreview/30GREEN.html?searchpv=nytToday

I find myself bristling at legal and political arguments that restate
pre-September 11th positions and use the September 11th events to support
those preexisting positions. I am disturbed if the events haven't changed
people: it is not only the opportunistic use of the tragic events to
advance an agenda that troubles me, I wonder about the judgment of anyone
whose thinking is so calcified that they immediately propose whatever it is
they were already proposing. Nevertheless, I think the future of the
Court's efforts at enforcing federalism depends on people's deep background
beliefs, which the events of September 11 have surely changed.

So I'm of two minds with respect to the Greenhouse piece. On the one hand,
it looks like another restatement of preexisting belief, as she has often
railed against the Court's new federalism. On the other hand, I have to
agree that the events will and should change how we assess the
state-federal balance. We are seeing a powerful move toward national unity
and a strong demonstration of belief that the national government is the
place to look for solutions to problems.

Most of the discussions about the effect of the September 11th events on
constitutional law have been about whether there will be new restrictions
on individual liberty and new tolerance for these restrictions. These
discussions usually argue against changing to adapt to new conditions. The
Greenhouse piece contains admonitions of this kind. Did she recognize that
what she was saying about how federalism must change because of the events
is the same logic that would say we need to sacrifice our liberties because
of the events? Perhaps the idea is, because of the events, everything that
I liked before must be scrupulously perserved and everything that I didn't
like must be ended.

Ann Althouse
Arthur-Bascom Professor of Law
University of Wisconsin
Madison, Wisconsin 53706