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Tag Archives | Supremacy Clause

Surprise: Law Professor Misinterprets Supremacy Clause

By on January 26, 2013 in Commentary, Constitution, Delegated Powers, Education, Federalism, Founding Principles, Government, Law, Nullification, State Sovereignty

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. Continue Reading →

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Interview on TN Attorney General, Constitution

By on April 10, 2010 in Constitution, Interviews

Podcast: Play in new window | Download

On Attorney General Robert Cooper’s opinion on the TN Health Freedom Act:

This guy is either a liar, he’s ignorant, one of the two or both. But either way this guy is unfit for office as an Attorney General. He has not only twisted and kept out parts of the Constitution in his discussion, but he’s made completely false claims…This guy is F all the way around.

That’s a quote from my interview this week on the Mike Slater show, which airs on the West Tennessee TJ Network.

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Constitutional Ignorance from the Tennessee AG

By on April 6, 2010 in Constitution

In an opinion released today on the Tennessee Health Care Freedom Act (HFA), State Attorney General Robert Cooper informs us that the Act is unconstitutional (and in essence, shouldn’t be passed by the legislature).

Here’s his argument, in short (read the full opinion here):

Congressional power to preempt state law arises from the Supremacy Clause of the United States Constitution. The Supremacy Clause provides that the laws of the United States “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding,” U.S. Const. art. 6, cl. 2.

He continues:

The Supremacy Clause results in federal preemption of state law when: (1) Congress expressly preempts state law; (2) Congress has completely supplanted state law in that field; (3) adherence to both federal and state law is impossible; or (4) the state law impedes the achievements of the objectives of Congress.

My first question to the AG is this – why did you leave the most important part of the “Supremacy Clause” out of your opinion….was it because you’re unaware of it, or were you intentionally trying to obfuscate and keep it out of the public discussion?

Reading the full clause should make clear to the reader why I ask this question:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]

Interesting how Mr. Cooper didn’t include the absolute fact that for a federal law to be supreme, it must be a law made IN PURSUANCE of the Constitution….the very limited powers delegated to the federal government by the Constitution, that is.

HFA 1, Cooper 0

Also in Cooper’s “Federal Law is Supreme” rant, the AG seriously takes the position that Federal Law is supreme, as he alluded, pretty much as long as Congress decides to be supreme. In essence, he’s claiming that Congress has a VETO power over state laws that conflict with it.

This is verification, to me, that the AG either is lying about his constitutional knowledge, or is simply unaware of the history of the Constitution’s ratification.

The REAL history of federal power is this – during the Constitutional Convention, members proposed what became known as the “Virginia Plan.” This, if it were approved, would have given Congress the power to veto state laws as it saw fit – and as the AG has claimed as well.

The problem though, for lovers of federal power (like the Attorney General of Tennessee) is this – the constitutional convention considered this plan, and rejected it.

HFA 2, Cooper 0

So what the AG is arguing for is something that the Founders said NO to. Instead, they created the Supremacy Clause, which made clear that federal law is supreme only when in line with the enumerated powers in the Constitution – not whenver they want, which is what he is, in essence, claiming.

Bottom line? Either he’s unaware of this plain and simple historical fact (as most State Attorney Generals are), or he’s obfuscating in order to stop this essential measure from being passed.

My guess on this would be…

Both.

Here’s the reality of the situation – the Constitution means what the Founders and Ratifiers told us it means, not what the Attorney General of Tennessee hopes it means.

HFA 3, Cooper 0

It’s my hope that the legislature of Tennessee will continue to show the courage they’ve been showing in recent history – with passage of the state sovereignty resolution and the Firearms Freedom act – and defy these blatant falsehoods from both Cooper and the Federal Government.

CLICK HERE – for Professor Brion McClanahan’s essay on the Supremacy Clause

CLICK HERE – for the Tenth Amendment Center’s Federal Health Care Nullification Act

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Selective Reading Of The Constitution

By on March 3, 2010 in Constitution, Delegated Powers

One favored method of dismissing the sovereignty of state governments is to quote the Supremacy Clause, saying that since the Constitution is the supreme law of the land that state laws are necessarily subordinate to federal law. The only problem with this reading is that they fail to read the entire Supremacy Clause.

To remedy this I will paste the Supremacy Clause into this post here. “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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.“

According to my reading of this clause, only the laws which are made in pursuance of the Constitution are supreme, therefore, unconstitutional laws (which nullification laws are enacted to repeal) are not supreme- and in my view are illegal to pass at all.

CLICK HERE TO READ THE REST OF THE ARTICLE

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The Supremacy Clause Vs. the 10th Amendment: Who Has the Power?

By on December 23, 2009 in Constitution, Nullification

The feds do, according to an article at Nolan Chart on Monday, which specifically takes issue with the idea that nullification is a power left to the states by virtue of its having never been surrendered:

In order to advocate their belief nullification or Tenth Amendment advocates ignore the specific language of the Constitution prohibiting such state power. This specific language is contained in clauses two and three of Article VI of the Constitution sometimes referred to as the supremacy clause. Clause two mandates “the Constitution and laws of the United States which shall be made in Pursuance thereof…shall be the supreme law of the land the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” …Thus, any action by any state official to act in contrary of the Constitution, including the supremacy clause, is clearly unconstitutional.

Naturally, nullification proponents attempt to exploit the constitutional phrase, “made in pursuance thereof” asserting the laws, acts and rulings in question are not made “in pursuance” of the Constitution. Therefore, they assert, the state has the right to nullify such laws, acts or rulings as they are not made “in pursuance” of the Constitution. The problem with this argument is the Constitution does not assign the states the authority to decide what is “made in pursuance” of the Constitution. Instead, the Constitution assigns this authority to the federal courts under of Article III… Thus, the Constitution delegates the power to decide if something is constitutional or not to branches of the federal government and denied to the states.

We are used to seeing this from statists on the right and the left; in fact, it is pretty much the consensus position of the Supreme Court. But the author claims to be a libertarian, which kind of boggles the mind.

So, is his analysis correct?

Let’s ask Thomas Jefferson, the founding generation’s resident expert on natural law:

[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Game. Set. Match.

Who says logic is a dead art?

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Getting the Supremacy Clause Wrong

By on September 28, 2009 in Constitution, Health Care

An article in today’s New York Times discusses the recent growth of state-level resistance to a future national health care plan. In 2010, voters in Arizona will have a chance to approve a state constitutional amendment that would effectively ban national health care in that state. Legislators in Florida and Michigan have already introduced similar legislation, and potentially 15 other states will do so in the 2010 session.

Here’s something important that NYT writer Monica Davey claims:

…the Constitution’s supremacy clause ordinarily allows federal law to, in essence, trump a state law that conflicts with it…

I have two main points to make here:

1. The “supremacy clause” does not allow federal law to trump state law in all situations. It only does so when both laws are in pursuance of a power that has been delegated to the federal government by “We the People.” All those delegated powers are in the Constitution.

2. We know that this is the case because Monica’s version of the supremacy clause was actually proposed by leading founders – and rejected. When the Constitution was being drafted, James Madison and others proposed the “Virginia Plan.” A major part of this plan was to give the congress a veto over state laws. It was defeated. That means, that Davey is wrong in her claim. Period.

So we know from that short lesson that the supremacy clause did NOT authorize the power that the New York Times is claiming. In fact, the main things that are unconstitutional in this country are those times when the federal government exercises powers not delegated to it in the Constitution.

Unfortunately, though, not enough people know this important history of the Constitution, so they’re easily swayed by patently false statements.

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