Have you ever read an article that you were not sure what stance the author takes on the subject but presents both sides of the argument at once? I had the distinguished experience recently when I was reading the article titled “Sheriffs, State Lawmakers Push Back on Gun Control” on the Newsmax website (see: http://www.newsmax.com/Newsfront/Gun-Control-Pushback/2013/01/17/id/471825). It was a little confusing until I got about half way through it and read a quote by Sam Kamin.
Sam is a constitutional law professor at the University of Denver. One would think that if someone was a law professor that they would actually know and understand the law. Or in this case, a constitutional law professor – who should then know and understand the constitution. It is highly unfortunate when people like Sam misspeak about a subject. Their title gives them some credibility so people think what they say is true because they are supposedly an “expert”. But, when they make a mistake it is still a mistake.
The Supremacy Clause of Article VI, Clause 2 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, anything in the constitution or laws of any state to the contrary notwithstanding.
Sam makes the comment that state legislatures can pass any laws they want but that the Supremacy Clause of the Constitution makes such actions unconstitutional. He further states that when there is a conflict between state and federal law, the federal government is supreme. Nothing could be farther from the truth. His blanket statement implies that the state laws are not necessary and state governments are not necessary because the federal government and its laws are supreme.
If that were true we clearly would have a tyrannical government in Washington D.C. where no checks and balances with the states would exist. Based on Sam’s point of view the federal government can pass any law it wants and the states cannot do anything about it because the federal law is supreme. THAT IS HOGWASH.
The ONLY federal laws that are supreme are the ones that are CONSTITUTIONAL.
ANY federal law that is unconstitutional is NOT supreme. Unconstitutional laws come in many forms. The most common are federal laws that infringe upon states’ and people’s rights. There are a limited number of things the federal government can do. These things are enumerated in the Constitution. When the federal government creates laws OUTSIDE its enumerated powers, those laws are UNCONSTITUTIONAL.
The “Necessary and Proper” clause allows the federal government to make all necessary and proper laws for carrying out ONLY its enumerated tasks listed in the Constitution. The “Supremacy Clause” makes ONLY those necessary and proper laws the supreme law of the land. Any constitutional law professor worth his weight should already know and understand this. It was all explained in the Federalist Papers No. 33. You can see for yourself here: http://www.foundingfathers.info/federalistpapers/fed33.htm.
The “Supremacy Clause” does not apply to any law that the federal government makes which is NOT PURSUANT to its constitutional powers. Any such laws are an invasion of authority and a usurpation of power away from the states. ALL federal law that usurps the power of the states should be treated as such by the state legislatures.
We are in a federalist society. This means that each state retains its sovereignty and own form of government and laws. Under the Constitution, each state retains its independent authority to create any laws it needs for its society EXCEPT for the ones enumerated to the federal government by the Constitution. The Tenth Amendment openly spells this out. It says:
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.
We can see very clearly from this Amendment that anything NOT PURSUANT to the Constitution does NOT reside within the power or jurisdiction of the federal government. The Amendment succinctly points out that such power is reserved to the states and the people. Somewhere along the line Sam must have forgotten this when he made his statements.
None the less, the states are now waking up the idea and exercising their constitutionally protected rights to NOT have the federal government overstep their boundaries. State legislatures ARE enacting state laws that will nullify federal law outside of its jurisdiction. If the federal government wishes to take it to court based on Sam’s ideas of the Supremacy Clause, they are going to lose their cases.