It is true that the Constitution of the United States does not vest Congress with a general “emergency response” power. At the same time, Congress’s various enumerated powers have been interpreted fairly broadly, and they do support a number of measures that authorize federal action – and, of course, spending – in response to various emergencies. Think, for example, of the F.E.M.A. (“Federal Emergency Management Agency”). Even within the American “federal” constitutional system, then, there is room and authorization for some national-level measures and initiatives.
Why do you consider the principle of federalism as an important constitutional guarantee in the governmental arrangement of the Unites States? How in your view has the weakening of this constitutional principle by the federal institutions including the federal judiciary since the New Deal era affected the governance of the country?
Constitutions are, of course, more than laundry lists of rights and aspirations. Fundamentally, constitutions allocate, structure, divide, and constrain the powers of governments. These structural arrangements and mechanisms are better or worse, depending on how well they facilitate human persons living together in community and flourishing. America’s constitutional structure has familiar inefficiencies, but these are, in my view, outweighed by its benefits, which include increased opportunities for citizen participation and policy innovation, clearer lines of official accountability, and a better fit for a nation of America’s size and diversity.
That said, American federalism has been transformed dramatically, not only by events and experiences, including the Civil War and the Great Depression, and by constitutional changes such as the Reconstruction and Progressive Era amendments, but also by a changed understanding of the federal judicial role. Beginning in the late-1930s, the Supreme Court tended to interpret federal powers broadly and acquiesced in the growth of administrative rule-making and governance. At the same time, it assumed a more active role in policing state and local governments’ compliance with an expanding understanding of federally guaranteed individual rights. These developments reduced, although could not eliminate, the sense in which states could function as distinct, and distinctive, political entities.
One of the causes and aspects of a weakening federalism was the centralization or “unification” of fundamental rights. The Bill of Rights attached to the US Constitution were initially served as a guarantee against the federal government, however, federal courts began to “incorporate” these rights and deem them applicable against States. This is what happened with the constitutional principle of religious freedom and the separation of church and state in 1947. You have been researching this area for quite a long time and you are also the founding director of Notre Dame Law School’s Program on Church, State, and Society. What in your view are the downsides of this centralization effort, especially with regard to both religious freedom and the separation of church and state? How did centralization affect the strong role religion always played in the American public life?