In this episode of Thoughts from Maharrey Head, I talk about the Constitution’s supremacy clause.Details
The media loves to trot out college professors as a way to shoot down every attempt to resist federal power. They’re cited as experts, and they almost always favor more federal power. Today we’ll cover a common example which shows they often don’t have a clue what they’re talking about.Details
Whenever we publish something about an anti-commandeering-style nullification bill, somebody inevitably responds with something along these lines. “I’m not a lawyer, but doesn’t federal law supersede state law?”
In short, the answer to that question is no.
In fact, the Supremacy Clause doesn’t even apply when it comes to anti-commandeering.Details
When we talk about the “supremacy clause” in the Constitution, we generally think of it in terms of establishing the supremacy of the federal government.
It does that.
But have you ever stopped to consider that the “supremacy clause” also declares the supremacy of the states and the people?Details
When the issue of federal power over states’ rights come into the forefront, Democrats are quick to cite the supremacy clause as beyond debate. Yet, Republicans often use the same talking points. When GOP policies need that extra “federal muscle,” Republicans imitate their political opponents and claim federal law as supreme without question.Details
The major argument used by those that oppose Nullification is the Constitution’s supremacy clause.
But in fact, the arguments for the supremacy clause ARE the arguments for nullification.Details
while the article is most directly about Article VI and the ways federal interests should and should not trump state law, it is more broadly about how original meaning can be implemented in an area with significant non-originalist judicial precedents.Details
Critics are quick to point out that the doctrine of nullification has never been legally upheld. In fact, the Supreme Court expressly rejected it – in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958.
They say that the courts have spoken on the subject, and under the Supremacy Clause, federal law is superior to state law. Further, they argue that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.
The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of nullification as the other branches are.
Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action “supreme.” They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch – a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: “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…”Details
As the Philadelphia Convention concluded, 55 delegates returned to their home states and began the promotion/demotion phase of the ratification process. This process commenced with the convention delegates addressing the citizens of each state and each state’s ratification delegation. Each Framer communicated his comprehension of the legal elements of the charter negotiated for during this historic endeavor.
The delegates generally represented two distinct factions known as the Federalists, supporters of ratification, and the Anti-Federalists, those opposed to the proposed constitution. Delegates regularly traded intellectual barbs through written prose promulgated in the local periodicals of the states.
An occurence which became commonplace during this process was Maryland’s Attorney General, Luther Martin responding to letters written by the Landholder, a nom de plum (pen name), utilized by fellow Philadelphia Convention delegate Oliver Ellsworth of Connecticut, in which Mr. Ellsworth attempted to minimize Martin’s contributions and negatively impact his service.
Martin’s letter was published in the Baltimore Maryland Gazette on March 19, 1788.Details