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.
onetenther, it seems your a little paranoid about yourself, not the States.
Separation of Powers is the relationship between the federal legislation (congress) and the judiciary (U.S. Supreme court). This means Congress cannot re-define a ruling passed down by the U.S. Supreme court. You guys need to step up your game, this is just to easy for me. No really, it is just to easy. duh!
Only the U.S. Supreme Court can rule if the federal govt. laws are unconstitutional. Until then, states must follow federal law. If they refuse they are then not following the constitution under article VI, clause 2. Seems pretty clear to me so what’s the problem.
@jettabear Do you mean this section?
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
You will notice the first clause mentions the constitution and the second clause is laws made in pursuance of. Since states must honor the constitutions and federal law then their is a possibility that a federal law which they are suppose to uphold may conflict with their other obligation which is to uphold the constitution. A law that says a person can’t practice Islam would be a federal law and it would also be unconstitutional which would put them into conflict with each other. Why should any state enforce that law when they are also required to uphold the constitution at the same time? They now have a choice and since the constitution is the superior to any federal law they must side on the constitution not the federal law that is in violation of it.
only the u.s. supreme court can over rule the federal government. so yes, states must follow all federal laws until the supreme court rules otherwise. duh!
@jettabear There is really nothing the courts can do if a state decides to ignore any of its decisions.
@jettabear The Supreme court has said states can’t ban firearms yet many states are defying it anyways. Where is the outrage from those who think the federal government is superior to states? It just seems kind of selective when you can decide over what issues the states should comply with SCOTUS and what issues they can’t.
“He further states that when there is a conflict between state and federal law, the federal government is supreme.”
Here is a way to send that argument right back at them which is to first acknowledge that this is true. In fact, it is true but point out that the FEDERAL LEGISLATURE ONLY HAS A FEW POWERS to write laws to begin with so there supreme authority over the states is limited to those few areas. This is something every ‘tenther’ should acknowledge but In regard to every other power the states are supreme. We really do not need a tenth amendment to point that out since it would seem that this is the only construction of the constitution we can make. I agree with others that the tenth amendment is serves as a defining rule of how separate powers should be treated and as a rule of construction for the entire constitution.
Unfortunately, the SCOTUS will never fully acknowledge that so it is up to states to use their muscle to enforce their own constitutional rights. I really feel that a real war is beginning to brew between the states again. I feel this because just try buying ammo at a local gun store! You can’t. People sucked it up and the ammo they are buying is bulk ammo which isn’t used for hunting!