What's federalism among friends?

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Originally published 09:43 p.m., May 9, 2005, updated 12:00 a.m., May 10, 2005

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"The more things change, the more they remain the same," according to the long forgotten Frenchman Alphonse Karr. Take the bipartisan mauling of federalism.

The Democrat Party earned harsh criticism from Republicans and scorching rebukes from the U.S. Supreme Court for chronic invasions of states' rights during the early years of the 1990s.

Since the Great Society delusions of President Lyndon B. Johnson, Democrats have assumed the powers of Congress are unlimited absent an express constitutional prohibition. The assumption turned the Constitution on its head. It evoked stentorian pledges from Republicans to honor traditional state prerogatives and to restore the Founding Fathers' design of a limited federal government, not a Leviathan. But after capturing control of Congress and the White House, Republicans are bettering the instruction of Democrats in pulverizing federalism. The pledges of change proved hollow, like a munificent bequest in a pauper's will, to borrow from Supreme Court Justice Robert Jackson.

In 1990, Democrats twisted congressional authority to regulate interstate commerce to enact the Gun-Free School Zones Act. The law made it a federal criminal offense to possess a firearm within 1,000 feet of school grounds. The objective was the punishment of gun violence or its threat, conduct already criminal under state prohibitions. The Act neither regulated commercial activity nor contained any requirement the possession be aided by interstate commerce.

In United States v. Lopez (1995), the Supreme Court voided the Act as beyond the Commerce Clause power. Writing for the 5-4 majority that included Justices Antonin Scalia and Clarence Thomas, Chief Justice William H. Rehnquist scolded Congress for ignoring the instruction of James Madison in Federalist 45: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite."

A Democrat Congress again galloped off its constitutional reservation in the Religious Freedom Restoration Act of 1993 (RFRA). The law responded to an opinion by Justice Scalia in Employment Division v. Smith (1990) confining the First Amendment's protection of religious freedom short of theocracy. RFRA compelled states to confer greater religious freedom than required by the Constitution under the false banner of enforcing the Fourteenth Amendment. Accordingly, the Supreme Court voided the law in City of Boerne v. Flores (1997), and explained that "enforcement" is no synonym for "enlargement."

In 1993, Democrats enacted the Brady Handgun Violence Prevention Act. It conscripted state and local law enforcement officers to conduct background checks on would-be purchasers of handguns. Speaking through Justice Scalia in Printz v. United States (1997), the Supreme Court held that the conscription violated the sovereignty of states celebrated by federalism.

In 1994, Democrats stretched the Commerce Clause to enact the Violence Against Women Act (VAWA). It fashioned a federal civil damages remedy for the victims of gender-motivated violence. But VAWA neither regulated commercial transactions nor was tied to a crime with a nexus to interstate commerce. Accordingly, the Supreme Court condemned the statute as beyond the powers of Congress in United States v. Morrison (2000). Writing for the majority, Chief Justice Rehnquist ridiculed the idea that gender-motivated crimes implicated the Commerce Clause because of their hyper-attenuated connection with employee productivity, medical costs, and supply and demand curves for products sold in interstate commerce.

President Bush and a Republican Congress have continued lacerating states' rights without breaking stride from their Democrat predecessors. Reminiscent of Patrick Henry toward King George III, the Republican Party sound track whispers, "If this be treason to federalism, let's make the most of it."

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), a mirror image of RFRA that the Supreme Court had invalidated in City of Boerne. Tied to the federal spending power, the law repeats RFRA's unconstitutional demand that states offer greater religious freedom in land use and prison settings than the Constitution requires. A constitutional attack on RLUIPA is pending in the high court.

Without a crumb of authority, Republicans enacted the Partial-Birth Abortion Ban Act of 2003, a flagrant invasion of state jurisdiction over abortions. In 2005, a Republican Congress reinforced by President Bush passed the notorious Terri Schiavo legislation in disregard of a final state court ruling interpreting state law issued in scrupulous compliance with due process. Championed by Mr. Bush and congressional Republicans, the Federal Marriage Amendment and the Victims' Rights Amendment equally slight federalism. Ditto for the proposed Common Sense Medical Malpractice Reform Act; proposed legislation (S.397) to shield gun manufacturers or distributors from civil liability based on gun misuse by others; and, a provision in the pending Energy Policy Act shielding MTBE manufacturers from state tort liability for distributing an allegedly defective product.

The House of Representatives recently passed the Child Interstate Abortion Notification Act (CIAN), another slap at state sovereignty. The power of a state generally is confined to conduct within its territorial boundaries. Further, the Privileges and Immunities Clause of Article IV of the Constitution generally requires states to treat residents and nonresidents equally. Citizens enjoy a constitutional right to travel to sister States and to receive the benefits of their laws. Yet the CIAN would expose to federal criminal prosecution interstate travel to obtain a legal abortion for a minor if the operation would have been illegal in the patient's home state. In other words, states would be compelled to enforce the abortion laws of sister jurisdictions in violation of their own public policy and the Privileges and Immunities Clause.

The Republican Party should return to the political enlightenment of Justice Louis D. Brandeis in New State Ice Co. v. Liebmann (1932): "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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