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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XI: Amendments From Hell

As part of that delicate vertical balance between the states and the federal government, the states were able to retain control over the federal government by sending their representatives to their United States Senate – senators. The founders set up this vertical balance between the states and the federal government to include the Senate as the House of Congress that directly and solely represented the interests of the states. Senators were sent to Congress by the states’ legislatures as representatives of the states’ interests, and not as representatives of the people, with the state’s legislatures directly representing the people of their state. Thus the states as a collective union had the ability to control the central government and keep it from overreaching.

The founders gave the Senate special tools to control the central government in Article I, Section 3, and Article II, Section 2 of the Constitution. In Article I, the Senate was given the sole authority to try and judge in cases of impeachment. In Article II, the Senate is given advice and consent (consent being the operative word) to limit the actions of the President and the Executive Branch. Approval of two-thirds of the Senate was needed to make treaties. In addition, the Senate was and is needed to provide advice and consent for the appointment of ambassadors, public ministers, Judges of the Supreme and inferior federal courts, and all officers of the United States. These include Generals of the military, cabinet members, and key aids to the President. That is unless the President finds ways to appoint czars who provide guidance and have no executive authority, other than very persuasive authority.

The progressives, using Randolph Hurst’s national media empire, whipped up populism and created a ground swell for the seventeenth amendment and the direct election of senators by the people. This served to remove the states’ control over the decisions of the Senate. The States’ actually considered petitioning for a convention for proposing amendments, under Article V, to grant the direct election of Senators to the voters. States actually were willing to give up the corner stone of the vertical check and balance that existed. The Congress, fearing that this convention would escalate into something more, hastily passed the seventeenth for ratification, to avoid the convention. Just how much popular opinion had been whipped up by the Hearst Newspapers – how much of a stampede of voters had the progressives created – just how powerful were these progressives in the very early twentieth century?

After the seventeenth, the Senate was now perfectly set up to be complicit in the shift of power from the States to the Congress and the Executive Branch – the Federal Government. The Senate was now the second people’s house in the national government, along with the House of Representatives – the limited States’ controlled federal republic should have been pronounced dead upon ratification; long live the national democratic central government.

The sixteenth amendment allowed the federal government to tax incomes of the citizens of the various states progressively and then to use tax money as it saw fit. This allowed for the manhandling of those resistant states. The federal government was now taking money from all states and then was sending money back disproportionately to compliant states and withholding money from non-complaint states. By force of collecting dollars from and withholding dollars from non-compliant states, coupled with the new powers of the central government from a compliant senate, mostly due to the seventeenth amendment, the agenda of the progressive socialists to destroy the vertical balance between the states and the federal government was now complete.

While the seventeenth radically altered the balance between the union of states and the federal government, the sixteenth amendment gave the federal government a club to bludgeon any state that did not fall into line. A typical scenario will have the federal government passing a social give-a-way to enhance its progressive status with citizens and requiring states to partially fund the give-a-way. Compliant states receive more federal money, taken from that state via the federal income tax, to off-set the cost, while less compliant states are hung out to dry.

From the time of ratification by the very states it would disarm, the sixteenth has reined in states’ rights and has been the enforcement tool to destroy that delicate balance between the states and the central government – it kicked off the progressive era, thus the tax is aptly called the progressive income tax.

In 1913, the progressives had two key victories, in the name of what was good for the people – the sixteenth and seventh amendments. This was the start of the 100 year process to change our economic structure from free market to socialism, to move us to unlimited central government governance, and to distribute our growing wealth to the rest of the world.

Was the sixteenth amendment required for the federal government to pass income tax legislation? Apparently so.

During the civil war we had an income tax, and it was progressive, wherein the rich were taxed at a hire rate than the poor on their income. The claim of Congress at the time was that we needed funds to pay for the Civil War. Even back then there were charges that the progressive income tax was not about the war; but that it was about redistribution of wealth. Clearing the path for the tax was the financial situation of the nation. It was dire due to; are you ready for this – a severe recession caused by Wall Street which created a panic and runs on our banking system. Even the New York Times back then was against this tax. Despite the Times, Congress successfully passed the progressive tax. Subsequently, the tax was repealed in 1872.

Congress again tried an income tax in 1894. Of interesting note, possibly with some connection, in the election of 1894 the Democrats lost over 100 seats to the Republicans. This tax never got started because the Supreme Court struck it down after allowing a more progressive tax during the Civil War. The progressives of the time from both parties then pushed a constitutional amendment through Congress and it was ratified by the states in 1913. Since then the progressive income tax, which taxes earners based on whether they have deep pockets, has been used to choose winners and losers. The tax code as of 2012 had 73,608 pages and has become the darling of special interests.

XIII: Convention For Proposing Amendments

The first and probably the surest alternative can be found in Article V of our Constitution. Article V allows the States, as well as Congress, to initiate change to our Constitution with Amendments.

Article V states:
“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…

James Madison has in the notes of the “Debates in the Convention of 1787” – he kept the notes – that the method of Congress to amend the Constitution was added after much debate, as the original method entered into the draft of the Constitution was the States method.

This is the note found in my copy of the “Debate Notes” added to the transcribed notes of the debate – it is unattributable.

This Preface has been printed from Madison’s original manuscript in the Department of State. There is a transcript of the Preface in an unknown hand in the Library of Congress which was sent to the printer and from which Henry D. Gilpin printed The Papers of James Madison, 3 volumes (1840). The text of the Preface as here printed has been read with the printer’s copy thereof and important differences noted.

If you research these notes by Mr. Madison, you will see that today’s handling, interpretation, and abuse of the Constitution is not in keeping with what was intended. Try the Yale Law School repository for the Debate Notes.

They fear this occurring, as it bypasses the federal government and Congress’ input. We will be told by progressives, that if we ever did this; and we have never done this; that we would create chaos and completely re-write the Constitution, even though the progressives want the current Constitution gone. Even conservative groups fear this “proposal” convention for the irrational fear that we would lose everything at a convention of chaos. This is far from the truth.

Congress, the President of the Senate and the Speaker of the House, after receiving a constitutionally limiting petitions from two-thirds of the State Legislatures to call a “Convention to Propose Amendments to the Constitution”, can propose whether ratification of Amendments from this convention occurs at the convention (likely not to happen, allowing those who propose amendments to ratify – Congress may very well require a separate convention for each state – added 12/27/2015) with three-fourths of the state delegations, or delegates as a whole, voting to ratify one or more Amendments, or by the traditional method of three-fourths of the State Legislatures ratifying one or more Amendments. Congress can propose either method; convention ratification or state legislature ratification, but it cannot interfere with the business of the convention.

Since the Constitution is silent on how ratification occurs at the convention other than to let Congress propose a method, the State Legislatures could appoint their delegates, and also stipulate whether their delegates vote as a block, with each state having one vote. As Congress will likely propose the ratification by State Legislatures method; ratification at the convention will probably never occur, unless the States force the issue in their petition.

Since no time frame is specified in the constitution for ratification, except what is codified in the U. S. Code, any amendment proposed by the States really should have its own sunset clause. If ratification by the thirty-eighth state does not take place by a specified date, the ratification process for that Amendment then fails. States, to provide added protection against a wholesale re-write of the Constitution, can instruct their delegation that a wholesale re-write may not be attempted and will not be ratified.

States can also place into the petition for such a convention a limiting provision. Petition the Congress to call, under Article V, a Convention to Propose Amendments and add that any amendment must be solely germane to providing the states with additional checks and balance over the federal government’s branches.  Remember this, that only thirteen states NOT ratifying is the best firewall against a runaway or chaotic convention.

Ratifying states will send their certified official notice of ratification to the Archivist of the United States at the National Archives and Records Administration, pursuant to U.S, Code 106b. Upon receiving such notices from three fourths of the states, the Archivist will cause the Amendment to be published. There is no precedent for just how this would proceed, since an Amendment has never been proposed and ratified by the States.

To be successful, the goal of this convention must focus on restoring the checks and balance by the States over the federal government as it was in late December 1791, which was after the first ten amendments were ratified – the Bill of Rights.

Thoughts on What To Pass:

Any proposed Amendment that would attempt to negate the seventeenth Amendment, would face serious opposition to ratification. Opposing forces to this repeal or negation would whip up public sentiment claiming the states are attempting to take away the public’s right to vote directly for their U. S Senators.  Perhaps an alternate to repeal of the seventeenth amendment nullification would generate much less public enthusiasm to stop the process. Rather, the delegates should concentrate on one or two proposed Amendments, which they should tightly define.

The focus of the States should be the now abused Commerce Clause, and more importantly the “constitutionalization” of state nullification.

A proposed and ratified “Checks and Balance Nullification Amendment” will allow the States to nullify laws and regulations passed by Congress, regulations of independent agencies created by Congress, regulations and Executive Orders issued by the Executive Branch regardless of what name is given to these, or any constitutionally related federal judicial decision, whether it is from inferior courts or the Supreme Court.

Nullification under such an amendment might be a two-step process. Each house of a state legislature would vote on a joint resolution to “nullify”. If sixty percent of the States pass a “for nullification” joint resolution, then the law, decision, or regulation is nullified. Nebraska, being a unicameral (having only one house) legislature would only need a resolution and not a joint resolution.

Enough about this author’s potential cures.  If you now understand that something must be done or are unsure and want to learn more about the issues, the solutions, and the support behind this effort you need to visit the CONVENTION OF STATES website.  It is filled with expert commentary.  You might also visit a Mark Levin commentary on Article V and the issue at hand.  Mark Levin is a renowned attorney, talk show host, and a constitutional scholar.

Read more about the ratification process at:
http://www.archives.gov/federal-register/constitution/
http://www.archives.gov/federal-register/constitution/united-states-code.html
http://www.archives.gov/about/laws/acts-and-resolutions.html