The Supremacy Clause?

NOTE: Tom Woods will be the evening keynote speaker at Nullify Now! Philadelphia. Get tickets here – https://www.nullifynow.com/philadelphia/ – or by calling 888-71-TICKETS

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That poor soul from the other day who insisted Lincoln never said that blacks shouldn’t be voters or jurors, or intermarry with white people, or that he had no intention to interfere with slavery where it existed, still thinks the Constitution’s Supremacy Clause makes state nullification unconstitutional.

The Supremacy Clause merely begs the question. It reads, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

“Grand Old Partisan” takes this to mean:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws, whether or not in pursuance of the Constitution… shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

In other words, he accepts the interpretation current in American law schools. I do not intend this as a compliment.

Here’s what the people were told it meant at the state ratifying conventions, which is what matters. (I’ll be a sport and not even mention the proto-nullification arguments made at the Virginia Ratifying Convention, which settle the argument, though you can get the story in my Nullification or in Kevin Gutzman’s James Madison and the Making of America.)

Alexander Hamilton, at New York’s convention: “I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding” (emphasis added).

In Federalist #33, Hamilton added: “It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution….”

Thomas McKean, at the Pennsylvania convention: “The meaning [of the Supremacy Clause] which appears to be plain and well expressed is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws, thus made in pursuance of the Constitution, shall be binding upon the states” (emphasis added).

James Iredell, at the First North Carolina convention: “When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.”

For more on this, see Brion McClanahan’s Founding Fathers Guide to the Constitution.