124 Pages Posted: 3 Feb 2006
Homeland security is a critical component of the War on Terrorism. In our federal system of government, who is responsible for securing the homeland? The U.S. Congress has made available to states and cities some funding for overtime and equipment, but it has not assumed responsibility for covering all of the security costs incurred locally. While deploying some federal personnel for domestic security, the Executive branch relies largely on state and local officials for the necessary manpower. Meanwhile, governors and mayors complain about the unfairness of asking them to shoulder the burden of preventing terrorist attacks that would affect the entire nation, pointing to the risks of refusing states and cities the resources they need. Yet residents of states and cities less vulnerable to attack are reluctant to contribute to the high costs of security efforts necessary in places like New York City and Washington, D.C.
Ratified in an age of insecurity, the U.S. Constitution provides clear guidance on the issue of responsibility for homeland security. The Protection Clause of Article IV requires the national government to safeguard states and their cities from attack, either by providing the necessary security or by paying the costs of security measures implemented locally. Although today largely forgotten, the Clause once maintained a prominent role in guiding federal efforts in fortifying coastal towns, securing the frontiers, and responding to foreign invasions and domestic insurrections. Examining how the Protection Clause governed early conceptions of national security - as well as early implementation of security efforts - unlocks a security constitution designed expressly to address many of the logistical concerns now raised by the War on Terrorism.
Finally, the U.S. Supreme Court's anticommandeering doctrine, based on the Tenth Amendment, should not limit the national government's ability to deploy modern state and local security personnel, like law enforcement, for counterterrorism work. Historically, the Protection Clause has allowed and even compelled the federal deployment of state militia - who, under the Constitution's several Militia Clauses, could be (and often were) deployed by the federal government for security purposes. Indeed, the Constitution specifically provides for and encourages this type of commandeering as a way to protect citizens from the national military taking over towns and cities.
Keywords: homeland security, war on terror, terrorism, national security, protection, federalism
JEL Classification: K10
Suggested Citation: Suggested Citation
Mazzone, Jason, The Security Constitution. UCLA Law Review, Vol. 53, No. 29, 2005; Brooklyn Law School, Legal Studies Paper No. 32. Available at SSRN: https://ssrn.com/abstract=880076