In the latest attack on States passing resolutions or bills they perceive as unconstitutional actions by the federal government, Benjamin Wittes article Does the Virginia Federal Assembly Understand the Supremacy Clause in LawFare state, “I’ve been doing my best to ignore to the hysterical, paranoid, delusional howls of rage on both the Right and the Left about the NDAA, but they are starting to reach critical mass in a way that one ignores at one’s own peril.”

What seems to have prompted this article was the recent passage by Virginia of a bill stating that officials of Virginia would not comply with Articles 1021 and 1022 of the NDAA passed by Congress which does not exclude citizens from possible arrest and indefinite detention by the Military on orders of the President.  He goes on the state, “I have one question about this bill—which passed the House of Delegates on 96-to-4 vote and passed the Senate on a 38-to-1 vote: Do any of the members who voted for it remember that the federal Constitution contains a Supremacy Clause—which elevates an act of Congress just a wee bit over ‘any regulation of the Virginia Administrative Code’?”

His argument seems to be based solely on the Supremacy Clause in the United States Constitution which states;

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. (Emphasis added)

Since the “Supremacy Clause” is used to justify numerous actions by the federal government and to oppose any assertion by the states that they could nullify those actions then let’s focus solely on that argument.

The United States and all the individual States comprising it are representative republics, based on the rule of law.  These laws are established so that all people are subject to the same laws and these laws are laid out in our U.S. and State Constitutions, along with numerous other documents. There are several sections in the U.S. Constitution where States delegated powers to the new federal government, Article I, Section 10 lists several instances where state laws require congressional approval and in some instances that they were forbidden to act even with federal approval. States understand and have accepted that under the rules set out in the U.S. Constitution they relinquish those powers to the federal government.

The U.S. Constitution is not a document to set limits only on the States, its primary function was to set forth the form of the government with its enumerated powers  and those are chiefly listed under Article I Section 8 . These powers were delegated to the federal government by State representatives at the Constitutional Convention, and then the Constitution was ratified by the several States and can only be altered by the States through the Amendment process.

Let’s look again at the context of the “Supremacy Clause” and the limit placed on it;

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. (Emphasis added)

Definition: In pursuance thereof – in accordance with

This seems to be the part of the “Supremacy Clause” that Benjamin Wittes and others seem to gloss over when they declare those who object to actions of the federal government which as stated by James Madison in Federalist 45 are not part of the enumerated powers of the Constitution.

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.” (Emphasis added)

Therefore for the “Supremacy Clause” to be valid the law itself must be Constitutional, then how do we determine its Constitutionality?

Since the Constitution was written and ratified by men who were lawyers or had studied law it must be viewed in a 18th legal format and with how the words were used and understood in 1780’s.  One method is “Designatio unius est exclusion alterius” – the naming of one thing implies the exclusion of another. If a document names a list of items, in this case enumerated powers, then similar items that are not listed are not included. Basically, if the power is not listed then you do not have it.

Then if still unsure of a law’s Constitutionality we can try another method, what was the intent of the makers and ratifiers of the Constitution. We can look to the notes of the Constitutional Convention to see if they intended that the new government was to have more broadly based powers or “elastic ones” or whether it to be confined to certain powers and those powers only. All notes and writings point to the latter construction of the new government with the extreme exception of Alexander Hamilton who pushed for more of an American Monarchy and when he failed to achieve his goal he went back home and only returned when the Convention was almost over. Later he helped to write The Federalist Papers where he touted the limited nature of the new Constitution and helped to get it ratified, only latter did he worked to increase the government’s power.

If the evidence points to the writers and ratifiers clear intent to create a document that would form a government of limited and enumerated powers then any laws passed outside those enumerated powers or against their intent do not qualify as laws and thus are not covered under the “Supremacy Clause”.

If laws are passed that exceed those listed as a power held by the federal government are “supreme” then the discretion of the government and not the Constitution will set the limit on its own power. Therefore only those laws that are made in accordance (in pursuance) with the enumerated powers listed in the Constitution are and shall be the supreme law of the land.

William Kennedy

The 10th Amendment

“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.”



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