Did the “Civil War” Settle “Supremacy”?

A Letter to the Editor titled “Civil War settled governor’s nullification notion” and declares federal supremacy – or did it? In The Cap Time – Your Progressive Voice, James Kroneman writes:

“In response to the Tariff Act of 1828, South Carolina threatened to ‘nullify’ the law, saying that it did not apply to South Carolina. In 1832,South Carolina codified the Nullification Act by formally stating that ‘if the federal government moved to enforce the Tariff Act, it would be met with the secession of South Carolina from the Union.’ This war of words would continue until the Southern states, under the guise of ‘states’ rights,’ seceded from the Union and brought about the Civil War, which established the concept of the United   States we know and love today.

“After the Supreme Court upheld the Affordable Care Act, our governor, along with other officials, declared that he would not enforce the act in Wisconsin.

“Now I ask you, just who in hell does he think he is? Has he not learned one thing from history, or have he and others simply decided that they are more knowledgeable than anyone else? This concept of the governor was debunked in the 1860s. A federal law applies to ALL the states. And if the governor needs more proof of what he thought he could do, I suggest that he sit down and read the U.S. Constitution.”

Well, I will agree with James Kroneman on one point – he needs to “sit down and read the U.S. Constitution”. Yes, he was referring to the Governor of Wisconsin, but in this case, I think the governor has a better understanding of the Constitution than Mr. Kroneman, who seems to believe that “might makes right” and the “Supremacy Clause” in the Constitution settles everything.

In “A Question of Supremacy” I refuted the assertions of another writer who also claimed that the states have no right to nullify federal “laws” because that would violate the Supremacy Clause of the Constitution. But as I stated in that article, the people who wish to cite the Supremacy Clause always skip right over a couple of words proceeding the words “shall be the supreme law of the land”. So, what are those “inconvenient” words they don’t want you to read, “shall be made in pursuance thereof”.

The Supremacy Clause in the United States Constitution states:

“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, anything in the Constitution or laws of any State to the contrary notwithstanding.” (Emphasis added)

Definition: In pursuance thereof – in accordance with

This seems to be the part of the “Supremacy Clause” that gets glossed over when they declare those who object to actions of the federal government which as stated by James Madison in Federalist 45 are not part of the enumerated powers of the Constitution.

”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; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.” (Emphasis added)

Or Alexander Hamilton who wrote in Federalist No. 33;

“But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.“ (Emphasis added)

Or Thomas Jefferson: “Whensoever the general government assumes undelegated powers….a nullification of the act is the rightful remedy.” (Emphasis added)

If laws are passed that exceed those listed as a power held by the federal government are “supreme” then the discretion of the federal government and not the Constitution will set the limit on its own power. Therefore, only those laws that are made in accordance (in pursuance) with the enumerated powers listed in the Constitution are and shall be the supreme law of the land.

As for James Kroneman’s other argument that the “Civil War” settled everything, he simply advocates “might makes right”. Basically, if I beat you into submission, you will do what I tell you to untill the end of time. So, violence trumps the Constitution and the enumerated powers The Bill of Rights, which includes the Tenth Amendment. A very poor argument.

In brief ,any “good” lawyer will tell you that if you are forced through violence, or the threat of violence, to do what someone wants you to do, that is coercion and as such is not legal.

Sorry, Mr. Kroneman, but yes, the governor “and others” including Jefferson and Madison are “more knowledgeable than” you and we know that nullification is the “Rightful Remedy.”