The Myth of the US Constitution's "Supremacy Clause"

This subject came up in a recent thread in which a poster made the unqualified statement that "federal law trumps state law."

To be sure, a lot of members have not read the Constitution; and I'm always on them, along with a few others, like a rout of seagulls on a pigeon. But it's gradually dawned on me that that's not always the case. I think there may be some here who have read the Constitution and still have absolutely no comprehension of it. I put that down to "lack of context." Unable to analyze it themselves (admittedly a difficult task), they've foregone the commonsensical expedient of reading surrounding documents such as the Federalist Papers, any and all extant letters and correspondence of the principals—or even, for Pete's sake, any of the many thousands of pages of exhaustive analysis available on the Internet.

Leaving them, unfortunately, only with the option of parroting the thoughts, deeds, and words of the execrable pack of Constitution-shredding criminals now in ascendant power.

This is what we call Not Good.

So let's take a quick look at this "Supremacy Clause."

Article VI, Paragraph 2: Supreme Law: 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 Heritage Guide to the Constitution

That sounds pretty absolute—but for the concept of a little something called "dual sovereignty."

But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed 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 other objects.
James Madison: Federalist #39

And again:

[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245.

This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."
Printz v. United States—U.S. Supreme Court (1997)

To get a handle on this concept, it may be useful to understand the powers of the federal government. You've no doubt heard many times that the federal government is constrained by the Constitution to very limited authorities and responsibilities. Indeed Article I, Section 8: Powers of Congress is quite specific in this enumeration:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

United States Constitution: Article I, Section 8

So—To put it all together:

The Supremacy Clause does not establish the federal government as supreme. In fact, the Supremacy Clause establishes Supremacy of Law. The federal government is one of few and defined powers. All powers under the Constitution fall under one of three categories: [1] those exclusive to the federal government (or prohibited to the States), [2] concurrent powers (both federal and state can exercise the power), and [3] everything else. We know through the historical record the federal government is one of limited powers. The proponents for ratification (the Federalists) gave explicit guarantees at the state ratifying conventions that the powers delegated are limited to those enumerated. In fact, in many cases, the Federalists said any law made that was not in pursuance of the Constitution was null and states were not obligated to abide by any law afoul of the Constitution.

A few powers fall into the first category—those exclusive to the federal government or prohibited to the States. Even [fewer] powers fall into the second category of concurrent powers. Typically, taxation and commerce are the two powers referenced in this category. Finally, the third category encompasses all other powers. All other powers are too numerous to document or enumerate. Those powers are reserved to the states or the people. Supremacy of Law dictates that if a power is a state power then the State power is supreme. Likewise, if a power is exclusively a federal power then the federal power is supreme. Only those laws made by Congress that are in pursuance of the Constitution (meaning within the powers in the first two categories) are supreme.
The Constitution: Birthed In Self-Determination

Or, in plainer words:

To read the Supremacy Clause as big government proponents would have you do—that ALL FEDERAL LAWS ARE SUPREME—would render the remainder of the Constitution meaningless. Why would there be a need for anything other than a Supremacy Clause? Why would the Constitution’s Framers have deliberated throughout the summer of 1787 over the other 4,500 words in the Constitution if their intent was to make the Federal Government supreme in all areas it unilaterally decided to act?

The reality is that we have a Constitution that delegates specific enumerated powers to the Federal Government—with the expectation that the Federal Government is not to act beyond those powers.

State Supremacy vs the Supremacy Clause

...And finally, does anyone seriously believe for one minute that any of the 13 states would have ratified the Constitution had they believed that it was a perpetual one-way Venus fly trap—a one-way ticket to sovereign suicide? The Constitution was barely ratified as it is!"
Murray N. Rothbard (1926-1995)

reply to post by Ex_CT2


You are much better read than I, but Article III essentially guarantees that Federal law trumps State law, especially when its paired with Article IV which provides that no state shall have unnecessarily prejudicial laws. The Supremacy Clause is unnecessary. Not that the states are not entitled to establish law, but it is regulated by the Supreme Court.

reply to post by onthedownlow


Only if they're in pursuance of the Constitution—meaning within their enumerated powers. Which is to say that if the Feds overreach their authorities—as they continuously do—then obviously they're acting unconstitutionally and the laws are null and void.

That is, after all, the whole point....

ETA: It can also be argued whether the Supreme Court is the final arbiter of Constitutionality, but I'm not prepared to enter such an exhausting argument at this point.

reply to post by Ex_CT2


I would consider case law to be a 'living, breathing' aspect of the US Constitution- retained to the collective. Is the collective the Constitution, or the Federal Government? Is case law, in essence, Federal law?

I was just posting to say it's past my bedtime when I saw your post.

I wasn't really expecting any activity before tomorrow. At the moment I'm too tired to argue this and will have to say goodnight. I'll return after my morning chores tomorrow a.m....

reply to post by Ex_CT2


Goodnight sir. Better for me that I caught you right before bed. I must admit that I was somewhat incensed by your original post, but a little reflection has helped me realize the fatal flaw of my argument, yet I believe I could still continue a less eloquent argument in the negative (than you can in the affirmative). Excellent post, S&F.

I'd say this is certainly one of the better threads I've seen on the topic of Federal vs. State power and State's rights in context of the Constitution. I think you're absolutely right about few really understanding the power of the States as designed under our system. Who can really blame folks on that, either? It's not as though the lack of understanding is accidental or some coincidence. TPTB have been quite happy to help foster that misunderstanding, since central federal control above all else is key to whatever they are working to accomplish here. They required the United State, not the United States...and need people to help make that happen.

Thanks for the time and effort to really lay it out properly and with some depth! I look forward to seeing how this thread progresses today.

I always thought that the Constitution made it very clear with the addition of The Bill of Rights (** see footnote) that the order of precedence in matters of of law was The People, The States and then The Federal Government. That any law that violated the rights of the people would be unconstitutional. That the powers granted to the Federal government could overturn State or Local law that violated the rights of the people. That States could also enact laws to counter Federal Law in order to protect the People. And as a final Check and Balance, that Jury Nullification could be used should neither the State or Federal government fail to uphold the protection of the People or Individual with a particular law.

A good example for case study would be the Individual Mandate of ACA (Obamacare). Article 1 spells out the powers of Congress. Nowhere to be found is the power to force an individual to purchase anything for any reason. Despite Chief Justice Robert's ruling of Obamacare's fine for noncompliance being a tax, and that usually Supreme Court rulings on a Law are final, several States have pending (or passed) legislation exempting their residents. Provisions within the law itself have exemptions from the individual mandate. But when the fine is finally assessed on an individual, the IRS might find themselves in a criminal court and subject to jury nullification.

My personal opinion on the mandate is that the Federal Government overstepped their bounds and changed the definition of We the People from citizens to subjects. That we currently live in a de facto tyranny due to this mandate and once the first penalty is applied to the first individual, is legal grounds for war because it is stripping the right due process from the People along with many other provisions and protections of the Constitution. I also believe that everyone that voted for it has committed an act of Treason and should be executed en mass so future elected officials remember their limitations and obligations to the People. But that is my opinion.

(**) The Bill of Rights was required by three states in order to secure their vote to repeal The Articles of Confederation so that the Constitution could be ratified. Under the Articles of Confederation, the central government was limited to unanimous decisions for alterations of law such as amendments, new powers and repealing the Articles itself. The largest changes in the Constitution was the Amendment process and the power to tax. Interestingly enough a small war called The Whiskey Rebellion was fought over the power to tax. The central government placed a small sin tax on whiskey in order to collect money to pay debts to soldiers and others from their contributions to the Revolutionary War. This tax was created because the Articles only relied on States making donations to the Central government for operating costs. In the end, the Whiskey Rebellion created both the Constitution and Bourbon as means to both enforce and evade taxes. But the importance of The Bill of Rights was to establish and reenforce that precedence of power was The People, The States and then The Federal Government as defined in the Constitution by the Preamble, the Amendment Process and the limitation to only the enumerated Federal powers and that any expansion of power requires an amendment.

S&F! Thanks for a thread that started my day with a smile. This old dog intends to continue to learn 'til they close the lid on me...

I'd hazard a guess that everyone but the tiniest sliver of the pie have had the concept drummed into them to the point of just accepting it is true. I'll be referring to this regularly due to my admitted ignorance on this.

reply to post by Ex_CT2


"Lack of context". Oh boy.
* * * * * * * * * *
The Constitution of the United States
Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states ...

Fourteenth Amendment, Section 1 - “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Are you, or are you not ultimately subject to the jurisdiction of the United States and do federal authorities not write, define and adjudicate laws, privileges and immunities within the fifty states, the Bill of Rights notwithstanding?

It isn't what we think it should be, it is what it is.

reply to post by frazzle


Imma just put this here:

The 14th Amendment Clarified

This is for everyone who's had their brains washed using the 14th Amendment. It's an illegal stealth amendment to turn you into a subject and not a sovereign.

Take it or leave it; I don't intend to debate it with anyone....

reply to post by wrabbit2000


Thanks, Wrabbit. But I fear my response to frazzle, above, has the potential to change some minds and turn this thread quite ugly. I should have seen it coming.

Oh, well: the truth of what's been done to us is a radical and very scary undertaking. Ideas like this are a lot to take in, and the messenger often suffers the beating instead of the perpetrators....

NVM

Ex_CT2
reply to post by frazzle

 

Imma just put this here:

The Unconstituionality of the 14th Amendment

This is for everyone who's had their brains washed using the 14th Amendment. It's an illegal stealth amendment to turn you into a subject and not a sovereign.

Take it or leave it; I don't intend to debate it with anyone....

You are absolutely correct, no debating is necessary. Not that that stops them from enforcing it and there is nothing in the constitution that gives us the ability to strike down either the 14th or 16th or any other color of law BS just because its fraudulent. They own the guns, the courts and the jails. All us "citizen subjects" own is the debt they create and its been that way from the start. Hell of a deal.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and General Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

Incremental is the watchword and yes, if they had written exactly what they had in mind no one would have signed it. Actually many delegates didn't sign it because they did know what to expect.

www.anamericanvision.com...


ETA: I'm sorry if you feel my participation is "ugly", although the truth often is just that. But its your thread, so carry on without me.

It's the last sentence that's overlooked by those promulgating supremacy, usually in pursuit of things that a reasonable person could find no grounds for in the Constitution. Abuse of supremacy clause combined with bastardization of the 10th by the courts has allowed much harm.

"any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Its conveniently ignored much like "shall not be infringed" when the 2nd is in discussion by what I call "statist's" but heaven forbid the hypocrisy of those same people when it comes to the selectivity of not "infringing" the 1st amendment.

reply to post by frazzle


OK. Sorry, frazzle, I misunderstood; I thought you were making the opposite argument. I don't agree, however, that there's nothing we can do.

Well, in for a penny, in for a pound, as they say. For those playing along at home, the 14th Amendment usually raises its ugly head just as a discussion of "Supremacy" gets off to a good start.

Unfortunately the 14th is an extremely complex subject about which 99.9999% of us are completely mis-educated. Because, you see, the entire purpose of the 14th is to keep us enslaved and under control. And those who have received the sacred mission of educating us on the matters of our own sovereign powers over our government have betrayed both that mission and us—all under a traitorous and deliberate campaign.

So here's what we know about this traitorous act:

Legal Fraud of the 14th Amendment

The 14th Amendment and the Bill of Rights

The Dual System of Law Effectuated by the 14th Amendment

Ludwig von Mises Institute: The Truth About the 14th Amendment

Lew Rockwell: The Squalid 14th Amendment

Using The 14th Amendment To Nullify Secession Petitions is Preposterous

14th Amendment: USA The Republic is the House that No One Lives In

You are correct OP. The supremacy clause is for protecting CONSTITUTIONAL powers of the federal government. It can not make illegal or unconstitutional laws or powers supersede a states authority.

Hence why the drinking age was enforced by threatening to remove federal funding for roads to states that had a different age limit then 21. Or seat belt laws ...ect. There exists no supreme federal authority.

The federal government has NO power in enforcing unconstitutional laws or exercising unconstitutional power. Its authority is limited to that prescribed in the US constitution which is secondary to all state constitutions or authority.


The supremacy clause just ensures that no state can print or make money of its own, or Negotiate with foreign governments or take any other such federal powers or authority.

Federalists always purposely ignore this fact and play dumb when it comes to the true nature of this clause.

Its an old ploy by them.

reply to post by Phoenix


Yes. Consider the following:

Any law passed by Congress is not in and of itself supreme. Even a law that is upheld by the Supreme Court doesn’t make the law supreme. The Supreme Court is not the sole and final arbiter of the Constitution. If that were true it would make the judicial branch supreme over the other two branches and violate the principle of co-equal branches, and it would place the Supreme Court above the Constitution itself.

[...]

Historically, there have been terrible rulings from the Supreme Court. The Dred Scott case, the Fugitive Slave Law of 1850, the Legal Tender Cases of the 1860s and 70s, the Wickard Case and the separation of church and state case in the 1940s are examples of cases where the Supreme Court declared something that was unconstitutional, constitutional. In theory, the most heinous laws could be enacted such as forced sterilizations, a one child per couple law, a tax on 100% of your income, a law declaring a single national religion, a law putting disabled or handicapped children to death, etc. Any law could be constitutional under this system.

The Constitution: Birthed in Self-Determination

edit on 9/14/2013 by Ex_CT2 because: (no reason given)

Ex_CT2
reply to post by frazzle

 

OK. Sorry, frazzle, I misunderstood; I thought you were making the opposite argument. I don't agree, however, that there's nothing we can do.

Well, in for a penny, in for a pound, as they say. For those playing along at home, the 14th Amendment usually raises its ugly head just as a discussion of "Supremacy" gets off to a good start.

Unfortunately the 14th is an extremely complex subject about which 99.9999% of us are completely mis-educated. Because, you see, the entire purpose of the 14th is to keep us enslaved and under control. And those who have received the sacred mission of educating us on the matters of our own sovereign powers over our government have betrayed both that mission and us—all under a traitorous and deliberate campaign.

So here's what we know about this traitorous act:

Legal Fraud of the 14th Amendment

The 14th Amendment and the Bill of Rights

The Dual System of Law Effectuated by the 14th Amendment

Ludwig von Mises Institute: The Truth About the 14th Amendment

Lew Rockwell: The Squalid 14th Amendment

Using The 14th Amendment To Nullify Secession Petitions is Preposterous

14th Amendment: USA The Republic is the House that No One Lives In

No harm, no foul. I can see how you might have gotten that earlier impression. Sorry. I agree that 99.9999% of us are completely mis-educated ~ or make that DIS-educated, not only about the 14th. but about our entire history. I get slammed a lot because I challenge so much of what the 99.9999% believe and I guess that's only fair because I'm not very tactful most of the time.

But despite the links you gave proving that some people are awake and aware, it will never be enough. I was listening to Glenn Beck (one of the biggest dissemblers on earth) last night and he was on one of his "man on the street" kicks. Love him or hate him, over half the people he quizzed couldn't name the secretary of state or give the number of countries in North America, so expecting to get people to understand the more complex issues like the hoax of the 14th amendment is a minnow swimming against a tsunami of misinformation.

I would LOVE to be wrong about that.