States 2, Federal Government 0 (6/24/97) 

Back when I was an assistant district attorney with the Tarrant County D.A.'s office, I had a conversation one day with a receptionist who was taking a government class at a local community college. She was having difficulty with the concept of "federalism", that is, the distinction between federal and state rights. I felt her pain.

Despite the fact that I'm no scholar (and against my better judgment), I tried to help.

Since she had the U.S. Constitution on her desk, I told her that the First Amendment was a perfect example of how, originally, rights enumerated in that context made a distinction between the state and federal governments.

It begins "Congress shall make no law respecting an establishment of religion". Before Supreme Court interpretations, I told her, that amendment prevented the federal government from creating a national religion, but, in theory, did not prevent an individual state from doing so. And if it were not for the 14th Amendment, the Supreme Court tells us, today any state could create a state religion, prevent a newspaper from being circulated, or prevent public protests on public grounds unless that state had not passed a similar law limiting its own state government.

Am I kidding? No. Notice the word "Congress" in the 1st Amendment. It means what it says. The legislative body in Washington D.C., which has the right to establish federal laws that appear in the United States Code, can make no law "respecting an establishment of religion". Legislatures (like ours which sits in Austin) are not prohibited by the First Amendment alone.

(The U.S. Supreme Court later ruled that most of the Bill of Rights apply to the States "through the 14th Amendment". Don't ask me to explain this since I've never completely understood it. Nevertheless, the court acknowledged that the First Amendment alone applied only to the federal government. It took an additional amendment to have those rights limit the action of state governments.).

Last week, the Supreme Court revisited federalism from the opposite direction. Yes, the Bill of Rights tells Congress what it cannot do, but the Constitution also spells out what it can do. Most of us take for granted that Congress can enact any law it desires so long as the Constitution does not prohibit it. This is incorrect. The Constitution also spells out what power Congress has. If it isn't listed, then Congress cannot act even if their is no express prohibition against it.

For example, if the Constitution said that Congress has the power to build highways but was otherwise silent, any law that Congress enacted which did not directly relate to the building of highways would be unconstitutional. Why? Because the Constitution did not grant any other power to Congress and, unless so delegated, the power is reserved to the States as stated in the 10th Amendment.

But back to last week's Supreme Court decision. In the case, Congress had passed a law requiring state law enforcement offices (i.e. a sheriff's office) to conduct background checks on those that wish to purchase a handgun. Peeled to its core, the court's decision said that Congress had overstepped its bounds and entered into an area it had no power to regulate. In essence, it had exercised a power not granted to it by the Constitution.

A similar event occurred last year when it ruled that Congress could not make it a federal crime to carry a handgun around local schools.

Neither of the decisions means that the U.S. Supreme Court believed that the law was a bad idea. On the contrary, the court is never asked such a subjective question. Instead the justices decide, on a case by case basis, whether a federal law violated the U.S. Constitution regardless of the merists the law might have.

In both cases, the Supreme Court applied an appropriate check on Capitol Hill. I would suspect that a state legislature could pass the same laws and they would pass constitutional muster, but Congress had stepped out of line.

Should you care? Absolutely.

Limitations of any citizen's rights is best left to the States. If it is a good idea to have our Sheriff perform background checks when a Wise County resident wishes to buy a handgun, then let that law come from Austin. If a "gun free" school zone should be enacted, lets make it a state law which is enforced by local police, prosecuted by the local D.A., and incarceration in a state penitentiary.

Those matters, simply put, are no business of Congress. The Supreme Court did you a favor last week in reasserting that federalism lives.

I just hope the receptionist passed the course.

Barry Green is the District Attorney for the 271st Judicial District.

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