[eDebate] Ledewitz terrorism link to Morrison
Wed Sep 6 15:13:13 CDT 2006
I had been doing some Morrison work and was working through the ADI file and
had some questions about the Ledewitz internal link card to terrorism. I
looked Professor Ledewitz up and had the following conversation with him
through email. Thought this might help clarify the warrant for his claim
about Morrison increasing terrorism:
JBH: was just reading your article "The Present and Future of Federalism"
and noticed that you said: "In terms of foreign-based terrorism, it is
generally conceded that national governments must control national borders,
so in that context the issue of federalism does not arise. But in terms of
terrorism occurring internally from whatever source, whether domestic or
foreign, the situation is quite otherwise. It has been argued vigorously in
the United States, for example, that, aside from taxing and spending powers,
the central government lacks a regulatory police power. Indeed, the Supreme
Court has recently held, in cases acknowledged as reinvigorating federalism,
that Congress may not regulate weapons in schools or violence against women
and has also intimated that Congress may not regulate the crime of ordinary
If these holdings were taken seriously, and their consistent application is
in doubt 11 , they might cripple central government efforts to combat
terrorism occurring within the United States. For example, terrorists in
other countries have already used violence against women to accomplish their
political and religious goals. Were this to occur in the United States, the
Morrison case would simply have to be overruled, either expressly or
impliedly, in order for Congress to respond effectively. But, to acknowledge
the incapacity of the states to fight terrorism without central government
leadership and control is to acknowledge that there really is, and must be,
a central government police power. Yet, the acceptance of such a national
police power would be taken among many in the United States to be a direct
contradiction of federalism."
The statement: "If these holdings were taken seriously, and their consistent
application is in doubt, they might cripple central government efforts to
combat terrorism occurring within the United States. For example, terrorists
in other countries have already used violence against women to accomplish
their political and religious goals. Were this to occur in the United
States, the Morrison case would simply have to be overruled, either
expressly or impliedly, in order for Congress to respond effectively." does
not seem to be footnoted.
To what historical terrorist scenario are you referring and in what way
would the Morrison decision impact the congress in its war against
terrorism? I appreciate any help you could give me in this area!
Professor Ledewitz: I am thinking of how the Taliban and others find and
beat women who are "improperly" dressed in Muslim countries. I am imagining
a home-grown Islamic organization in the US that does the same. The states
individually would be hard pressed to respond. Could Congress in response
make the violence aimed at limiting the rights of women a federal crime
after Morrison? The answer logically should be no, but is certainly yes as
a political reality if this occurred. As another example, how can 18 USC
section 231 be applied after Morrison and Lopez: "teaching another to use a
firearm or explosive for use in a civil disorder..where commerce is
JBH: Oh sorry, one more question (hope I am not being too annoying). I
understand why you say that the states would have a hard time stopping a
home grown Taliban style organization from beating women. But how would
those states inability to stop the beating of those women result in a
terrorist act (wasn't the claim that extremists have used violence against
women to increase terrorism etc?).
Prof. Ledewitz: the beating of women is the terrorist act in my scenario.
Oh, ok, Thanks so much, very helpful! I would agree with that.
Anyway, hope that is helpful,
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