The following post is excerpted from the script for Nullify: Season 1. Watch all the videos from this series at this link – and Become a member here to support the TAC.
It’s a common claim that the Supremacy Clause of the Constitution means federal law is always supreme over conflicting state laws. But this view flips the original legal meaning of the clause on its head.
Let’s start with the text of the Supremacy clause itself.
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.
Note the key words: in Pursuance thereof. The mere fact that the federal government does something does not give it supremacy. It must find roots in the enumerated powers delegated in the Constitution and at the same time, it must not violate the Bill of Rights.
Alexander Hamilton covered this in Federalist 78. He wrote:
There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.
What does this mean in practice when federal and state laws conflict? Well, in general, if the federal law is in pursuance of the powers delegated in the constitution, federal law is supreme. And, in general, when it’s not – state law wins.
Otherwise, the Supremacy Clause would say this:
This Constitution, and any other act that Congress, in its infinite wisdom, decides to pass…shall be the supreme Law of the Land.
But it doesn’t. Federal laws not made in pursuance of the constitution are not supreme. They’re void. And should be treated that way too.
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