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?
Modern politicians, pundits and “legal experts” throw around the words of the supremacy clause like hand grenades in political debates. It’s as if they think the clause cloaks the federal government with absolute, unlimited authority to exercise any and every power.
Me: “States should take action to stop violations of the Second Amendment.”
Political hack: “They can’t. Haven’t you heard of the supremacy clause?”
Well as a matter of fact, I have heard of it. And I’ve read it – probably a million times. But I’m not so sure some of those politicians, pundits and legal experts ever have.
Let’s read it together.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land.”
One must remove the words “which shall be made in Pursuance thereof” to construct the view of absolute federal supremacy in all things held by most Americans. But those words exist. They sit there in the middle of the clause, glaring out from the page, demanding attention. And they convey a very clear truth – the federal government possesses a limited supremacy.
Only laws made in pursuance of the Constitution stand supreme. That’s it. Not every act of Congress. Not every pronouncement of the president. Not every opinion written by a majority of Supreme Court justices.
In pursuance thereof.
Alexander Hamilton addressed the limits of federal supremacy in Federalist #33.
“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed….But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union…only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.”
Simply put, federal supremacy occupies a very small amount of real estate in the realm of political authority. Something else fills in the rest of the space.
Those “smaller societies” Hamilton references in Federalist #33. Or as the words of the Tenth Amendment frame it, the states and the people.
When you simply flip the supremacy clause around and consider its corollary, it becomes clear the federal government really isn’t ultimately supreme.
As much as this particular constitutional clause declares the supremacy of the federal government, it also establishes the supremacy of the state governments and the people themselves – supremacy that includes every power – every action – not delegated to the federal government.
When you consider the small number of powers actually extended to the feds, it becomes clear that the states and people were actually intended to play the lead in America’s political drama. The Constitution relegates the federal government to a supporting role, exercising supremacy over those few things it can do “in pursuance” of the Constitution.
As North Carolina’s James Iredell put it during the ratification debates, a law “not warranted by the Constitution is a bare-faced usrupation.”
Thomas Jefferson put it this way.
“Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
So you see, the states and the people stand supreme.
The supremacy clause says so.
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