Surprise: Law Professor Misinterprets Supremacy Clause

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: 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.


Left and Right Agree to Disagree

After an embittered presidential election, a never-ending kabuki on Washington finances, and now a fierce debate over property rights, many would be surprised to know that members from opposite sides of the political spectrum have found some common ground. Betsy Woodruf at National Review Online sure was. She was shocked to find agreement between the Republican Governor of Illinois, Mitch Daniels, and Tom Dickenson of Rolling Stone magazine regarding medical marijuana and federalism. Both, it seems, favor letting the states determine their own drug policy, even though they may not agree on what each state ultimately decides.

First, note that agreement between the two parties happens more often than not. In principle they all agree on war, debt, entitlements, taxation, police statism, drones, the central bank, socialistic healthcare, prohibition, and many other issues. Of course they disagree on just how much debt there should be; if the military ought to bomb the people of third-world countries or drop bombs and machine-gun them; and whether individuals should forfeit 35 percent of their income or only 33 percent. Some diversity of thought.

But what’s noteworthy about this particular case is that each can agree because neither is trying to force the other into submitting to a single policy. Here we see one of the great things about decentralized government: it tends to reduce conflict by allowing various groups to “live and let live.” This is isn’t possible when all policy decisions are made by one body, when a polity becomes too big.


Nullify Term Limits?

Term limits are one of most popular political issues of the day.  Most think of achieving this with a Constitutional Amendment, but there is another way: with  nullification.

Before 1995, states were legislating term limits.  Then in Inc. v. Thornton, 514 U.S. 779,(1995) in a 5 to 4 split decision, the Supreme Court ruled term limits unconstitutional. Their reasoning was that since the U.S. Constitution imposed some qualifications on Congress people, such as age restrictions and citizen requirements. The states could not legislate additional requirements.

In a well reasoned and clear statement for federalism, Clarence Thomas dissented with, “It is ironic that the Court bases today’s decision on the right of the people to ‘choose whom they please to govern them’.” Under our Constitution, there is only one State whose people have the right to ‘choose whom they please’ to represent Arkansas in Congress… Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.”

Justice Thomas is correct. There is no real Constitutional basis for this split Supreme Court ruling. It is the ruling on the whims and political view of five lawyers.  At the end of this Blog are states that still have federal term limits in their laws and/or constitution. As best I can determine, these states still have these statutes on the record. If the governor or Secretary of State deems that in Inc. v. Thornton, the U.S Supreme Court does not have the authority to make their ruling, then they could prevent these multi-term federal politicians from appearing on the ballot. A grass roots effort in these states might persuade one of them to do this.


Federalism and the 10th: The State Reclamation Begins

The state governments are now beginning in earnest to do something about the encroaching federal government. Way back in 1994 when the “Republican Revolution” was taking place in Congress the Republican Governors Association (RGA) “adopted” a sort of “declaration of independence” for themselves.  From Congress we got the “Contract with America” and from the RGA…


Federalism and the 10th: The States’ Great Awakening

In Part 1 of this series, I explained how our federalism works and how the powers were divided between the states and our national government. The details showed that the states were superior to the federal government on the hierarchy scale and that the 10th amendment protected that position whenever the federal government stepped outside…


Federalism and the 10th: How It Works

What we are witnessing all around the country is a political revolution. As time goes by, the revolution will grow huge, into a massive historical event.

The people are beginning to understand what is going on, and are starting to take the necessary steps to reestablish their correct place and boundaries in our federalist system. After so many years of seeing the power usurped, it does my heart good to see steps finally being taken to correct that wrong.

Many times we hear people say that this country is a democracy. That is not true, we are a republic, and we use democracy as a means to pick our representatives in a federalist form of government. Somehow, people seem to conveniently forget that fact. So, what is federalism?

When our founders created the Constitution and established our federal government they did it on two planes, vertically and horizontally. Everyone gets taught the horizontal plane in school where we have the separation of powers between the various branches of government. Unfortunately, they are never taught the vertical plane which is where the whole federalist structure is set in place with a division of power between the national and state governments.


Do the Secessionists Have As Much Courage As the Nullifiers?

By now, anybody who even casually follows the Tenther movement and the liberty movement in general has likely heard about the secession petitions circulating.  Yesterday, I had personally gone from only hearing about Louisiana, to hearing my State of New Jersey had one too, to hearing the count was up to twenty States.  That could be an old number by the time this makes it into the Tenth Amendment Center blog.

The language of these petitions is interesting, as they “ask” the federal government to let said States peaceably withdraw from the United States.  Although I confess to having signed, originally for Louisiana upon first finding out, and then for New Jersey, it was more out of curiosity than anything else.

Apparently, any State circulating these petitions requires a minimum of 25,000 signatures within thirty days in order to receive a White House response.  Texas has nearly double the required signatures, and Louisiana is likely a day away from hitting the threshold.  Several states are beyond halfway there.  Check to see if your State is on the list.  While you’re at it, go ahead and sign, so you can get your response.  The most likely response from the White House is a familiar word to anybody in the nullification movement, “No.”


“Constitutional Rights”? Not Really

I frequently hear people talk about how many “constitutional rights” we have lost under (fill in whichever President’s name). This brings up a very interesting misunderstanding about the origin of our rights… For one thing, our rights don’t come from the Constitution; the Constitution merely recognizes that our rights preexist it.

For instance, in the 2nd Amendment it goes like this:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

It says “the right of the people to keep and bear arms shall not be infringed” ..not “the people shall have the right to keep and bear arms” – this is a very important difference in syntax! This is true throughout the document, and the document even recognizes in the 9th Amendment that we have all the rights not specifically mentioned.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

If the Constitution gave rights, then the syntax of the 9th would say something like “that the people shall enjoy” or “that the people shall have” instead of retained by the people.”

The meaning of the subtle difference here is profound, and has vast implications!


To Intervene or Not to Intervene?

Turkey has a fighter plane shot down by a Syrian missile defense battery. Do you think that they will respond with military force? Do you wonder if anyone in our central government said that they wished it was one of our F4 Phantoms that was fired upon?

Syria, much like Libya before it, is in a civil war. There is a large group of people tired of the oppression of their ruling government and they are killing each other.

We had a President once who thought he knew better and went to war to prevent a bunch of states from withdrawing from the union of states that they had previously sought to join as members.

No country decided who was right and who was wrong and sent troops over here to fight on a side; did they? Is it our place to decide who is right and who is wrong in Libya, or Syria?

Let us say our country arrives at a point where we find ourselves in a civil war.

Say the people of a number of states tire of the tyranny of the central government. They refuse to be threatened with indefinite detention without trial or evidence.

They refuse to live with drones able to conduct 24 hour surveillance without any warrant. No more will they submit to bodily searches by uniformed thugs before they travel or having their mail, phone calls and Internet activities monitored.

A number of states decide that they cannot realistically expect their citizens to be able to pay their state, property and sales taxes needed to maintain the state as well as pay federal taxes for the central govt. to fund programs that support the schooling, food, housing and utility assistance of those who pay no taxes.


Will Texas Nullify Obamacare?

Last Monday, Texas Governor Rick Perry sent a letter to Secretary of Health and Human Services, Kathleen Sebelius stating that Texas will not participate with the Patient Protection and Affordable Care Act (PPACA, also referred to as Obamacare).  He states that Texas will not implement the health benefit exchange or expand Medicaid

In his letter, he made the following statement:

Neither a “state” exchange nor the expansion of Medicaid under the Orwellian-named PPACA would result in a better “patient protection” or in more “affordable care.”  What they would do is make Texas a mere appendage of the federal government when it comes to healthcare.

During an interview with Fox News, Perry also stated the following:

I can assure you that Texas and other states would find more effective, efficient ways to deliver healthcare to their citizens and do it in a way that preserves those individual freedoms.

During the same interview, when asked about the high number of Texas Residents without insurance even with a strong economy in Texas, Perry responded:

The idea that this federal government, which doesn’t like Texas to begin with – to pick and choose and come up with some data that says somehow Texas has the worst healthcare system in the world is just fake and false on its face,” he said. “Every Texan has healthcare in this state, from the standpoint of being able to have access to healthcare – every Texan has that. How we pay for it, and how we deliver it, should be our decision – not some bureaucrat in Washington D.C. that may have never been to Texas a day in their life.

Perry joins a list of eighteen other governors vowing stopping the implementation of the PPACA.  Among this list are Louisiana Gov. Bobby Jindal, Wisconsin Gov. Scott Walker, Florida Gov. Rick Scot and Democrat Governor from New Hampshire, John Lynch.