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.
The Commerce Clause
So lets get started in finding the areas that the Feds claim as essentially planar grants of power, and find out what they actually mean. We will get into these things more thoroughly in the months ahead, but here I will just give you the “Readers Digest version.” We will start with the Commerce Clause: ”To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” Most politicians today actually treat this clause as if it gives them power over anything which could in any way affect any money, agriculture, market, or transportation…. but Madison gave us a very good description of the intentions of the Founders in a letter he wrote after he left government (1829) in which he said: “It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.” To paraphrase, Madison told us that the Commerce Clause was intended simply to create a “free trade zone” of the states in regards to each other, as well as to allow the Feds to conduct trade policy towards foreign nations. This would clearly be far short of the plenary power that Congress acts like they get from here.
The General Welfare Clause
The next clause would be the General Welfare Clause: ”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;” James Madison also defended this in the Federalist Papers when he said ”With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” Again, this is just a brief discussion – the term “General” meant the “general country,” meaning… anything that the govt. did had to benefit the entire (general) country and not one specific portion. That is to say, the state of New Hampshire could not be defended or “built up” at the expense of all the other states (or vice versa).
The Necessary and Proper Clause
This clause is cited as the “elastic clause,” but if that was really the case, why would any other powers have been enumerated? It reads: “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.” When asked about this clause, Alexander Hamilton said the Constitution would be exactly the same without it. It simply made clear that the Congress would make laws to carry out the foregoing powers of the Constitution, and not do something else. When examined in this light, this clause simply gives “incidental powers” to congress, for example, because they have the power to tax, they have the power to pay tax collectors; because they have the power to raise armies, they have the power to buy guns, etc…
In conclusion, only things which are expressly delegated to the Feds in the Constitution are “supreme,” anything beyond that is userpation and cannot be considered “law” at all.
I hope this will be useful in explaining the Supremacy Clause next month, when I will delve deeper into thespecific powers.