Cover Story

Two Sheriffs, Several Doctors and a Bishop

by Edward Hanigan

n its recently concluded term the Supreme Court of the United States issued three opinions reflecting a shift away from the Court’s previous deference to an unlimited expansion of Federal Government. The importance of the decisions is better appreciated by briefly reviewing the story of the 210 year evolution of the Federal Constitution in the context of the distribution of power between the national government and the individual States as outlined in the accompanying article, A Brief History of U.S. Constitutional Interpretation.

The Sheriffs

In 1993 Congress passed the Brady Act which required the chief law enforcement officer (CLEO) of the residence of a purchaser of a handgun to "make a reasonable effort to ascertain within five business days whether receipt or possession would be in violation of the law . . " In Printz vs. United States the sheriffs of two counties in Montana and Arizona sued the Federal Government claiming the Act was unconstitutional because Congress cannot compel state officers to execute Federal laws. In a 54 decision the United States Supreme Court agreed with the sheriffs.

In reaching its decision the majority looked to historical understanding, the Constitution’s structure and the Court’s jurisprudence. The Court found that historically Congress has not attempted to commandeer the States’ executive officers to enforce Federal laws. It also found that new laws which attempt to do so are of such recent vintage that they are not probative of a constitutional tradition.

The Court explained that the Constitutional structure imposes a dual sovereignty. Although the States surrendered many powers to the Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitutional text and is expressly set forth in the Tenth Amendment. The Court explained that "the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal governments would exercise concurrent authority over the people—who were, in Alexander Hamilton’s words, "the only proper objects of government . . . "

In his concurring opinion Justice Thomas repeated his position that "the Tenth Amendment affirms the undeniable notion that under our Constitution the Federal Government is one of enumerated, hence limited powers." He also emphasized his view that the Federal Government’s authority under the Commerce Clause, "does not extend to the regulation of wholly intrastate point of sale transactions." Justice Thomas’s interpretation of the Interstate Commerce clause is the narrowest interpretation of any member of the Court. The other conservative members generally hold that the Interstate Commerce Clause empowers Congress to pass laws regulating activity which substantially affects interstate commerce. Justice Thomas would restrict the power of Congress under the Interstate Commerce Clause to the power to regulate only commerce between the States, not every activity that affects interstate commerce.

In his dissent Justice Stevens enunciates the opposite viewpoint. In fact, he dismisses Justice Thomas’s position as "revisionist." Stevens would have been more accurate if he had said that Thomas was a "revisitor" in that Justice Thomas’s position is closer to the traditional notion of the Interstate Commerce clause before the 1930’s.

Stevens argues that if Congress decides in its discretion to initiate a nationwide policy, the Constitution empowers it to use whatever laws it deems necessary, "to demand that local officials implement" those policy programs. He proffers that the lack of historical evidence proving that the Framers did not intend to prohibit the Federal Government from implementing the services of State employees supports the Federal Government’s power to do so. He concludes that, "if Congress believes that such a statute would benefit the people of the Nation, and serve the interest of cooperative Federalism better than an enlarged Federal Bureaucracy, we should respect both its policy judgment and its appraisal of its Constitutional power." Thus, in Stevens’ view the exercise of Federal power to compel county sheriffs to enforce a new Federal law is actually a circumscription of the Federal Government, not an enlargement of it.

The majority obviously does not share Justice Stevens’ interpretation which Justices Souter, Ginsburg and Breyer joined.

The importance of the majority’s opinion is best summed up by Justice Stevens’ statement in his dissent that, "We have never suggested that the failure of the early Congresses to address the scope of Federal power in a particular area or to exercise a particular authority was an argument against its existence. That position, if correct, would undermine most of our post-New Deal commerce clause jurisprudence."

The Doctors

In Washington vs. Glucksberg, the Court considered the constitutionality of Washington’s prohibitions against assisted suicide. In Glucksberg four physicians who occasionally treat terminally ill patients claimed that they would assist these patients in ending their lives if not for the State’s assisted-suicide ban. They asserted a liberty interest protected by the Fourteenth Amendment’s Due Process Clause which they contended extends to a personal choice by a mentally competent, terminally ill adult to commit physician assisted suicide. The lower courts, including the Ninth Circuit Court of Appeals, agreed with the physicians. The Supreme Court unanimously disagreed and reversed the Ninth Circuit.

In reaching its decision, the Supreme Court examined our Nation’s history, legal traditions and practices and concluded that assisting suicide has been punished or otherwise disapproved of for more than 700 years. Considering that history, the Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. Justice Rehnquist concluded the Court’s opinion by proclaiming that, "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."

Glucksberg is an example of the philosophical debate as to the Court’s power to invalidate a State law through the use of the Fourteenth Amendment. The importance of Justice Rehnquist’s proclamation is that it is an enunciation of the notion that questions regarding "new" liberties are best decided through the democratic process, not by an unelected judiciary. Countering that conclusion is Justice Steven’s invocation of natural law in Glucksberg’s companion case Vacco v. Quill:

"Neither the Bills of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws create either property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.

"I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations."

As citizens of both the Federal Government and of our own State, we are subject to the laws of both. We also have the protection of the Due Process Clause of the Fourteenth Amendment. The question is what liberty interest does the Fourteenth Amendment protect? Is it preferable to have the Supreme Court of the United States invalidate laws dually enacted by State Legislatures or for the Court to defer to the decisions of locally elected representatives?

These questions are more difficult to answer than those concerning the scope of Congress’ power pursuant to the Interstate Commerce Clause. Under that clause the Federal Government generally makes laws restricting the liberties of the citizens of the various states. Under the Fourteenth Amendment the Supreme Court generally expands the liberties of the citizens. In both cases, centralized powers far removed from the citizens of a particular state are making decisions governing the actions of those citizens.

The next case to be discussed highlights what happens when the Supreme Court decides that a law enacted by Congress expanding and defining the liberties of individuals conflicts with a State’s law incidentally restricting those liberties.

The Bishop

In 1993 Congress enacted the Religious Freedom Restoration Act (RFRA) in direct response to the Court’s 1990 opinion in Employment Div., Dept. of Human Resources of Ore. v. Smith, in which the Court upheld against a free exercise challenge a state law of general applicability criminalizing peyote use, as applied to deny unemployment benefits to Native American Church members who lost their jobs because of such use. In so ruling, the Court declined to apply its balancing test which asks whether the law at issue substantially burdens a religious practice and, if so, whether the burden is justified by a compelling government interest. RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that . . . interest." RFRA’s mandate applies to any branch of Federal or State Government, to all officials, and to other persons acting under color of law. Its universal coverage includes "all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA’s enactment]."

In City of Boerne v. Flores the Catholic Archbishop of San Antonio, applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit, relying on an ordinance governing historic preservation in a district which, they argued, included the church, the Archbishop sued challenging the permit denial under RFRA. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment. The Fifth Circuit reversed, finding RFRA to be constitutional. The Supreme Court disagreed with the Fifth Circuit and held that RFRA exceeds Congresses’ power.

In Flores the Supreme Court held that RFRA was unconstitutional because although Section 5 of the Fourteenth Amendment provides that "Congress shall have power to enforce by appropriate legislation, the provisions of [the Fourteenth Amendment]", it does not have the authority to decree the substance of the Amendments’ restrictions on the States. The Supreme Court maintains that only it has that authority.

The Court explained that the traditional separation of powers between Congress and the judiciary is maintained by depriving Congress of any power to interpret and elaborate on the Constitution’s meaning by conferring self-executing substantive rights against the States and thereby leaving the interpretive power with the judiciary. The Court ruled in 1803 in the landmark case of Marbury v. Madison that the judicial authority to determine the constitutionality of laws is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten . . . "

Early in this century the Supreme Court held that the free exercise of religion provisions contained in the First Amendment were also binding upon the States through the liberty provisions of the Fourteenth Amendment. Before that decision, only Congress was bound by that provision of the First Amendment.

In Flores the Court jealously guards its self-determined sole power to interpret the Constitution and the rights existing thereunder. The Supreme Court determines what rights exist under the Constitution. Congress enforces those rights through legislation designed to remedy specific problems. The Court reasoned that if Congress could define its own powers by altering the Fourteenth Amendment’s meaning the Constitution would no longer be a "superior paramount law, unchangeable by ordinary means." It would be "on a level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it."

The Court’s objection to RFRA was that it expanded the meaning of the First Amendment by creating a standard of review of all state and local laws higher than that previously adopted by the Supreme Court. RFRA acted to invalidate local laws of general applicability rather than remedy a specific threat to the First Amendment. The Court reasoned that virtually all laws, state, local and federal would be subject to challenge if they happened to impact upon any one person’s perceived free exercise of religion. The Court held that "simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of the treatment of religion."

The Court found that the 1866 Congress which drafted the Fourteenth Amendment rejected an original draft because it invested Congress with too much power to define the scope of the substantive rights protected by the Fourteenth Amendment. The Court quoted Nevada Senator William Stewart’s warning that a broad interpretation of the Fourteenth Amendment would permit "Congress to legislate fully upon all subjects affecting life, liberty, and property," such that "there would not be much left for the State legislatures," and would thereby "work an entire change in our form of government."

(It is interesting to note that the Nevada Constitution ratified in 1864 provides that "the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all of its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States."[Emphasis supplied.])

In his concurring opinion Justice Scalia held that "religious exercise shall be permitted so long as it does not violate general laws governing conduct." He went on to state that "who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice?

"Unfortunately, however, that abstract proposition must also be reduced to concrete cases. The issue presented . . . is quite simply whether the people through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether . . . church construction will be exempt from zoning laws?

"The historical evidence put forward by (Justice O’Connor’s) dissent does nothing to undermine the conclusion we reached in Smith: it shall be the people." With these comments Justice Scalia suggests that while on the one hand Congress can make no laws defining the scope of the Constitutional protections under the First Amendment, the Supreme Court should not delve into an examination of general nondiscriminatory laws which may have an incidental impact on someone’s exercise of religion.

Flores is an important case because it not only definitively restricts the power of Congress while securing for the Supreme Court the exclusive power to interpret the Constitution, it also pays great deference to the laws enacted by the individual States.


Flores, Printz and Glucksberg are signs of a continuing shift in the Court’s determination of the balance of power between the States and the Federal Government. Printz prohibits Congress from making any law mandating that local officials execute Federal laws. Glucksberg limits the Court’s power to create rights not historically recognized by the Court or through an examination of the history of this country. Flores not only restricts the power of Congress, it also pays deference to local representatives’ determinations of what laws to enact and suggests a willingness to uphold the validity of those laws against Constitutional attack if those laws are not specifically designed to infringe upon Constitutional rights recognized by the Supreme Court.

Alexis de Tocqueville in 1831 wrote that the strength of America was found in its decentralization of power. "As the sovereignty of the Union is limited and incomplete, its exercise is not dangerous to liberty; for it does not excite those insatiable desires for fame and power which have proved so fatal to great republics . . . It has been demonstrated by observation, and discovered by the sure instinct even of the pettiest despots, that the influence of a power is increased in proportion as its direction is centralized." He wondered how long the decentralized power inherent in our Federal system would last.

One hundred fifty years later even local government is massive and intrusive. Most citizens probably believe they have as little influence over their local legislators as they have over their Federal Representatives. However, a distinction can be found between a large centralized Federal government and an ever growing local government. Local representatives legislate in geographic areas much smaller than their Federal counterparts. Most local legislators are familiar with the conditions of the people they represent and of those throughout the state. In contrast, Federal representatives often have never visited many of the states which are directly affected by Federal legislation.

A Federal legislator can enact a law that may have a dramatic impact on citizens of a State distant from his own, yet will never affect his constituency. Unfortunately, local government is subject to corruption and incompetence just as the Federal government is. We can only hope that vesting more power in local government rather than in a distant centralized government will encourage more responsible lawmaking.

Sidebar Story:

A Brief History
of U.S.

The cases discussed in this article are notable for their attempt to discover the Founders’ intent when they drafted the Constitution and the Amendments thereto. Rather than invalidate laws enacted by State legislators or discover new fountains of Federal power, the Court has looked to the words of the Constitution and decided on the side of less Federal power. These decisions are a sharp contrast to the late Justice Brennan’s opinion that "it is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." The Court’s restraint is a hopeful sign for Constitutional government. The Constitution of the United States is both the enabling document of this nation and an expression of the limits of our Federal form of government. It sets forth the ideals upon which this Nation was founded. To disregard its language is to reject those ideals in favor of the goals of whomever happens to be in power at the moment.

The urge of Congress to liberally expand the Federal government’s power will not subside easily. Both liberals and conservatives wish to use Federal power to promote their own vision of America through the use of National laws regulating intrastate gambling, smoking, abortion, medical care, tort actions, marijuana use, affirmative action, welfare, workplace conditions and a myriad of other contemporary issues arising from every point on the political spectrum. Rarely is an objection to a new law on Constitutional grounds raised in Congress or by the public.

The Constitution invested Congress with limited enumerated powers to prevent centralized mandates on intrastate activities. De Tocqueville observed that under our Constitutional scheme of government, "however the predominant party in the nation may be carried away by its passions, however ardent it may be in the pursuit of its projects, it cannot oblige all the citizens to comply with its desires in the same manner and at the same time throughout the country."

Justice Scalia echoed this discarded principle in Printz when he stated that "the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day."

Unquestionably some centralized national programs have benefited the Nation. Just as some state laws have trampled upon the freedom of their citizens. The challenge for our lawmakers and judges is to resist the compulsion to ignore the written foundations of our government to pursue what may be desirable, yet unconstitutional, ends. If the people we entrust to operate the government have no respect for the paramount law of the land how can we expect the rest of the citizens to respect our government? u

Edward J. Hanigan is a partner in the Las Vegas law firm of Hanigan and Dowling, and President of the Las Vegas Chapter of the Federalist Society for Law and Public Policy Studies.


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