VII: That Pesky Supremacy Clause

A popular misconception among people and again knowingly promulgated by the progressives is that federal law is supreme to state law. We hear uninformed people, pundits, politicians, and journalists misuse the “Supremacy Clause” regularly, often to the point of intentionally, egregiously perpetuating a falsehood.

Article VI of the Constitution states

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land…”

Yes, if the laws are within the outlined enumerated powers found in Article I Section 8, “Pursuance thereof”, in the constitution’s subsequent amendments, and do not violate the Bill of Rights, which include the ninth amendment – powers of the people and the tenth amendment – powers of the states, federal law is then and only then supreme. In order for a federal law to be supreme, Congress must play by the rules.  Failure to play by the rules means that Congress’ law is subject to overturn by the courts or nullification by the states. There is more on nullification later.  A Convention of States Article V could do wonders here.  In fact, the executive branch could refuse to enforce such a law as well.

Simply put, if a federal law is not made within the confines of the eighteen powers or subsequent amendments, the federal government is not empowered to make that law.  I might have to say this again in a different way for those very stubborn central government types.  A federal law not empowered by the Constitution – Article I, Section 8, or one that is in violation of the Bill of Rights or not empowered by subsequent amendments, cannot be and is not supreme to state law or any law, because it has no legitimacy of force under the Constitution.

[The ninth amendment] “The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

[The tenth amendment] “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.”

This creation of a central government uniting sovereign states for self-protection and to improve the free market capability of each state was accomplished with a very delicate, almost perfect balance between states’ sovereignty and a union of the states. The union made the states stronger as a whole and the very limited powers granted the federal government, allowed the states and the citizens of these states to continue to be different, independent, and to seek life, liberty, and the pursuit of happiness, as they saw fit.

The states intended the federal government to be powerful outwardly but not supremely powerful inwardly.  As a union, the states needed to be strong internationally and strong defensively, but the states and the people of the states were highly resistant to and fearful of losing their sovereignty, thus controls over the federal government were placed into the Constitution. The states even built in international and domestic protection for themselves by giving their representatives in Congress, the Senators, advice and, most importantly, consent on federal judicial appointees, executive branch appointees, and treaties.

Until the unfortunate seventeenth amendment, Senators were appointed by their respective state legislatures and truly represented the states at the federal government table.

The “Supremacy Clause”, “Necessary and Proper”, and “General Welfare” are all related and intended to give the federal government the ability to execute what the states had charged the federal government with in the enumerated powers and other specific powers that may appear in the Constitution, and nothing more. These are not wild cards provided to the national legislature.

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