The Supremacy Clause Tutorial

Oregon 912 is giving brief tutorials on misunderstood, and abused portions of the US Constitution, and I have been asked to create some indepth discussion materials for those interested, here is the 1st article on the Supremacy clause:

The Supremacy Clause

The U.S. Constitution was written precisely, and gives the Federal government “supreme” power in all laws made in pursuance of it.  This power is granted in the “Supremacy” Clause. This clause 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 notwith-standing.

I would like to call attention to the bolded part -“in Pursuance thereof.” This is the key to understanding which laws are supreme, or not.  In order then to determine whether or not laws are “supreme,” we need to determine if they are indeed in pursuance of the Constitution.  To do this, we first need to understand how the Constitution gives powers to the Federal government, as well as which of the powers it reserves for the states.  The best description of this is in Federalist 45, when James Madison (the Father of the Constitution) said : “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce.”  How do we know what the “few and defined” powers are, you ask?

You have to look in the Constitution itself.  In Article1 Section8, the Constitution lays out a majority of the powers given to the Federal government.  More are given throughout the document, but an important thing happens once you reach the 10th 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.”  To paraphrase, this Amendment says that any powers which have not been expressly granted, have been expressly denied to the Federal govt.  In a nutshell, this means we need to find the power in the Constitution in order for a law passed by the Feds to be “in pursuance thereof” of the Constitution.

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A new age of Jackson: History without violence

For The Hill on 1/27/11

Since New Hampshire state rep Dan Itse brought his challenge to Obamacare citing Thomas Jefferson’s Kentucky Resolutions in February 2009, we have been seeing a new age of Jefferson. Judge Andrew Napolitano now plays prime time “fighting for freedom” five nights a week; Virginia Delegate Jim LeMunyon proposes a Repeal Amendment; a 26-state challenge to the federal government moves to the Supreme Court and best practices conferences for governors today feature Thomas Woods’, “Nullification.” But the turning ahead may best belong to Andrew Jackson. It was the rustic warrior from Tennessee who first fired up the common folk west of the New River and laid their claim to governance. He is much misunderstood and occasionally maligned, but Jackson might well be considered the spirit father of the current red state uprising.

The Idaho Reporter reports that Republicans intend to introduce a plan to “use an obscure 18th century doctrine” to nullify the federal (Obamacare) law in a House committee and are working to gain the blessing of Gov. Butch Otter. They might pick up a copy of H.W. Brands’ “Andrew Jackson: His Life and times” for background. Because what is at the core is dominance: The world naturally divides by temperament, head and heart, city and country, in a binary way. The heart today is red (Sarah Palin), the head is blue (Barack Obama). Jackson opposed nullification and championed a free republic that might be considered a model for red state interests more pragmatic than Jefferson’s. But it was Jackson who put the fire in the belly of the heartland; a fire felt in the red states today and a fire that potentially will never go out.

Jackson might be considered the founding father of the Southern and western temperament, which have morphed to the red states today. I’ve been writing about state sovereignty up here for five years and was among the first to propose the Kentucky Resolutions in New Hampshire and Vermont to oppose George W. Bush projects, especially the war on Iraq. Cited Jefferson, but inspired by Jackson.

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