The "Supremacy Clause" Menace

03/30/10
For a painfully long time now, the federal government has relied upon a perverted interpretation of the Supremacy Clause and the Commerce Clause to justify its unconstitutional overreach.

In 2010, it is now relying upon a faulty and expansive interpretation of these clauses to justify Obamacare. Relying upon our Founders' wisdom as expressed in their own words, and upon a few foundational 19th century Supreme Court rulings, in this post I have attempted to very briefly show how extraordinarily flawed modern liberal Supremacy Clause justifications really are.

Article VI, Paragraph 2 (Supremacy Clause); “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.”

The practical purpose of this clause was to eliminate the confusing and often conflicting matrix of State-made treaties with foreign powers which afflicted the union under the Articles of Confederation. Primarily intended to ensure that only the federal government could legally enter into treaties with foreign entities, this clause was uniformly binding upon the States; however, it is important to note in passing that this clause was never intended to accommodate treaties with any foreign entity, e.g. the UN, which would in any way supersede the U.S. Constitution.

Based upon my reading of the Constitution and applicable Federalist Papers, this clause underscored the Founders’ belief that when exercising any of the powers specifically enumerated in the Constitution ( per Art 1, Sec 8) the federal government must prevail over any conflicting or inconsistent State exercise of power, certainly a prudent and practical approach to achieving orderly governance.

Further amplifying this meaning, in McCulloch v Maryland (1819), Chief Justice Marshall ruled that “the government of the Union, though limited in its power, is supreme within its sphere of action.” Thus, the Supremacy Clause renders Congressional power supreme only insofar as the power exercised is within its clearly defined enumerated powers (Art. 1, Sec 8).

An ardent advocate of a strong central government, even James Madison, aka “father of the Constitution”, stated that “the proposed [federal] government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all objects.”
Alexander Hamilton, no less an advocate of a strong central government, warned that “it will not follow from this doctrine (supremacy/preemption) that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
In Dred Scott v Sandford (1857), the court ruled that “although the Government of the United States is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the Constitution, have been conferred upon it; and neither the legislative, executive, nor judicial departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution.”
In United States v Reese (1876), the court ruled that “within its legitimate sphere, Congress is supreme;…but if it steps outside of its constitutional limitations, and attempts that which is beyond its reach, the courts are authorized to annul its encroachments upon the reserved power of the States and the people.”

The Federalist Blog notes that “if you want to invalidate some State law under the preemption doctrine the burden is on the plaintiff to point to the clause in the United States Constitution that exclusively delegates Congress the authority to make the law, and point to the express prohibition against the States to touch it. Simply having two conflicting laws is not enough; the burden is on the federal government to show its law is in pursuance of the Constitution and that it is an area expressly prohibited to the States to act upon, and thus, giving the law national supremacy.” For 10th Amendment advocates, this is a very important point.

Fearful of tyrannical federal overreach, framers John Hancock, Sam Adams, Patrick Henry and George Mason demanded more specificity with respect to the delineation of federal and state powers/jurisdiction. Thus, the Bill of Rights, the first ten amendments to the Constitution, was adopted which explicitly limited powers of the newly formed federal government. To wit, the 9th Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and the 10th Amendment which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.

Thus, despite federal attempts to draw upon “necessary and proper” (Art. 1, Sec 8, para 18) justifications for expansively exercising federal authority, ALL powers not specifically delegated to the federal government reside exclusively with the States and the people. Though activist jurists have, over the years, made mincemeat of these clear-cut foundational principles, it’s really this simple and straightforward. In short, the true intention of the framers is perfectly clear and their words are available for politicians and jurists alike to read.

To either a layman or constitutional scholar, it should be crystal-clear that for the federal government to exercise its authority by reliance upon the Supremacy Clause the exercise of that authority must be in keeping with constitutionally enumerated restraints. And to ensure the integrity of constitutional order, under the 10th Amendment unconstitutional federal laws may not only be properly pre-empted, but MUST be pre-empted/nullified by the states. (Note the Virginia & Kentucky Resolutions of 1798 in which Thomas Jefferson and James Madison sanctioned the right and duty of States to assert their sovereignty by nullifying unconstitutional acts of Congress.)

Though perverted case law since the Constitutional Convention now suggests otherwise, no amount of judicial revisionism, political expediency or social engineering can lawfully justify our conveniently misinterpreting or willfully conceal the Constitution's original intent and meaning.

Like a malignant cancer, my hope is that all case law which has defiled and deviated from the original intent and meaning of the Constitution over the years will, in time, be excised/nullified—sooner rather than later-- from the laws of our land. And I pray that this is the unwavering goal of any Constitutional Convention or conservative platform going forward.

A return to our Constitutional roots is all that can save the Constitution and the exceptional country it has spawned. And it is toward that noble end all Americans must strive lest our Republic, the most vibrant and most successful political experiment in the history of Mankind, is lost forever to ourselves, our progeny and to the world.

("If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws--the first growing out of the last...A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." Alexander Hamilton, 1794)
(“There comes a time in each generation when people must decide whether to stand up and defend their natural rights or bow down before the seat of power. Let us steadfastly maintain our resolve to see this battle through to victory!” John Tate, President, Campaign for Liberty, March 2010)

("Experience has shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny." Thomas Jefferson)