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The Supremacy Clause – things we weren’t taught

Below is an article found at the Tenth Amendment Center about the Supremacy Clause.  The Supremacy Clause is contained in Article 6 of the US Constitution.  It reads:

  “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

If read out of context and through the eyes of a statist, it reads like federal law trumps all state laws. As explained in the article, the italicized part is what the misinterpreters seem to ignore.  In short, any fedral legislation passed in the realm of constitutionally enumerated authority (See Art. 1 Sec 8 for the defined enumerated powers) is the supreme law of the land.  If federal law is written outside its constitutional bounds, the states have every right to ignore it.  

With all the efforts to repeal this and sue over that, as well as ballot initiatives, etc., why don’t we know this stuff? I read this a few months back and have been carrying a copy around to review on occasion so I’m better equipped to answer critics. We all need to learn this, teach it to our state legislators and to our children. Here’s some of the article. Read it all here,

Who’s Supreme? The Supremacy Clause Smackdown

 by Brion McClanahan

When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.

In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.” Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.

Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-à-vis the States.

The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.

The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent…” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union….” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states…” through such language.

Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.

The Convention again broached a federal negative on State law on 8 June 1787. Charles Pinckney, who presented a draft of a constitution shortly after Randolph offered the Virginia Plan, believed a national negative necessary to the security of the Union, and Madison, using imagery from the solar system and equating the sun to the national government, argued that without a national negative, the States “will continually fly out of their proper orbits, and destroy the order and harmony of the political system.” Such symbolism made for a beautiful picture, but it belied reality.

To most of the assembled delegates, the national government was not the center of the political universe and the States retained their sovereignty. Hugh Williamson of North Carolina emphatically stated he “was against giving a power that might restrain the states from regulating their internal police.”

Elbridge Gerry of Massachusetts was against an unlimited negative, and Gunning Bedford of Delaware believed a national negative was simply intended “to strip the small states of their equal right of suffrage.” He asked, “Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views?”

When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote). Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.” Since the negative did not pass, such a definition was unnecessary.

Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.


3 Responses

  1. Thanks, Roger, this is so useful in understanding how off course we are from the Constitution.

    • Susan, we’re being misled from many directions. Even by those inside our movement who are well-meaning, but ill-informed.
      We are doing a disservice to our cause if we continue to chase their fires. Our states have the right to ignore Obamacare, we just need to get in their faces and then use civil disobedience if necessary. Can we really gather hundreds of thousands of signatures every time they pass an illegal law? Wishful thinking at best and mis-spending of of a huge amount of physical capital at worst. Perhaps even psychologically damaging at the rate they’re being gathered.

      This is the kind of stuff we need to get out there. We need to befriend our sheriffs and support them. We need to replace our state reps, over which we have more control, if they continue to allow the federal govt. to trample our rights – and theirs- as citizens of sovereign states. Just because we let them get away with it before, doesn’t mean we can’t take it back immediately. The Constitution hasn’t changed – the character of our elected reps has.

      Sorry to go on like that. See you on the 24th.

  2. […] The Supremacy Clause – things we weren't taught « […]

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