Selective Reading Of The Constitution

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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.

I was asked to rebut this article below, which was written by Robert J. Martineau of Nokomis- Professor of Law Emeritus, University of Cincinnati.  I’ve pasted the article excerpts in italics and my rebuttals are in bold:

In state-federal conflicts, the Supremacy Clause win

Published: Monday, January 11, 2010 at 1:00 a.m.

Last Modified: Sunday, January 10, 2010 at 4:22 p.m.

Last week the Herald-Tribune reported that Florida Attorney General Bill McCollum was considering a challenge to the pending federal health care reform legislation on the grounds that it would conflict with the privacy clause in Florida’s state constitution.

The U.S. Constitution provides in Article VI that the “Constitution and the laws… shall be the supreme law of the land,” commonly known as the Supremacy Clause.

You seem to have missed some of the Supremacy Clause.  I pasted it above so you can see that this clause only applies to constitutional federal laws. So if you cannot site one of the enumerated powers that is serviced by nationalizing huge swathes of the private sector, it is unconstitutional.  Therefore,  if you agree with James Madison or Thomas Jefferson, states are not only within their rights, but duty-bound to interpose themselves to protect the liberties of their citizens.

The Florida provision cited by McCollum is Art. I, sec. 23 that states, “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

Earlier this fall there were news reports that the American Legislative Exchange Council, an organization of conservative state legislators, had been advising some of their members on how to adopt state constitutional provisions that would block any federal health insurance mandate on individuals in the states. Some Florida legislators have announced support for this effort. This is part of a larger effort by conservatives to attempt to limit the federal government by having state legislatures pass resolutions asserting state sovereignty under the 10th Amendment.

This is not a conservative or a liberal ploy, this is how the federalist system was designed to operate.  By only enumerating certain powers to the Federal Government, the founding fathers were trying to limit the infringements on your liberties by allowing a check from another sovereign government on the Federal Government.  The current system where the Federal Government assumes any and all power associated with government regardless of their founding documents is only one step from dictatorship.  One very popular “Caesar” figure and our republic will go the same way as Rome.  This is not about what laws you believe are appropriate for governing, but more about who should write them.  For instance, in Oregon we have a version of socialized medicine which was passed by the state.  I oppose such laws, but if I want to avoid socialized medicine I can leave for another state.  There is no such remedy for a federal law.

The basic premise behind the McCollum statement and the ALEC effort is that a state, by a provision in its constitution, can prevent the federal government from enforcing a requirement imposed on individuals by federal law. Historically, this concept is known as “nullification” or “interposition.”

While that ideal may be appealing to some, there are two basic flaws in it.

The first flaw is that it is in direct violation of the U.S. Constitution. It provides in Art. VI that the “Constitution and the laws… shall be the supreme law of the land.” The language is commonly known as the Supremacy Clause.

This means just what it says — federal law overrides any state law to the contrary.

As I stated earlier, the Supremacy Clause only applies to constitutional laws. Unconstitutional laws have their own supremacy clause (its called the Tenth Amendment).

The second flaw is that the nullification theory has been tried before and has never been accepted except by die-hard opponents of the federal government. Its most famous proponent was John Calhoun, who served as a U.S. senator from South Carolina and one term as vice president in the 1820s and ’30s. The principal opponent was President Andrew Jackson. Any question as to the validity of the theory was put to rest by the Civil War.

You missed many nullifications, such as: The Alien and Sedition Acts, the fugitive slave laws, and the Bank of the United States.  And if you want something more recent how about medical marijuana, Real ID,  and firearms freedom acts within states like Montana and Tennessee.  As for the Civil War, the only thing that was proven was that an industrialized nation can beat an agrarian country of 40% its size.  No legal arguments can be settled by force of arms. Those that are subjugated by such methods are not proven legally wrong.

Those who argue that a state law can preempt a federal law might want to consider how the theory would apply to the right to bear arms protected by the Second Amendment of the U.S. Constitution. If the nullification theory were accepted, it would allow state law to impose restrictions on that right beyond those allowed by the constitutional provision. Somehow I doubt that those who want state law to trump federal health care law would accept state law trumping the Second Amendment (and it should be noted that the Supremacy Clause puts federal statutory law on the same footing as the federal constitution).

Ok, you seem to be operating under the premise that the Federal Government doesn’t routinely infringe on second amendment laws, but I will make an attempt to accept your premise and argue on your terms, how about this…  If I don’t like the firearms legislation in my state, I can move to another state I do like.  Also, your level of representation at the state level is 100x better than at the federal level.  I always get a response when I e-mail my state rep, but my federal rep sends me exactly the same form mail that my friends get (I checked).

It is no denigration of the importance of state law to acknowledge the primacy of the federal law over conflicting state constitutional and statutory provisions. It is simply a recognition of the federal system established by the founding fathers and the only basis on which that system can function and prosper.

Wow, that is Orwellian. This system bears no resemblance to the federalist system put in place by the founders.  This system is lacking any real checks on federal authority and encroachments.  I would agree if we were talking of constitutional laws, but 90% of what the Federal Government does is blatantly unconstitutional.

Over the years I have served in many positions in state government including ones with three state supreme courts, as an assistant attorney general, member of a state constitutional convention commission, secretary of a state constitutional convention, and have drafted many state constitutional amendments. In addition, I developed materials for and taught courses in state constitutional law and also taught federal constitutional law.

I respect your accomplishments, but really to interpret the Constitution all you need is to be able to read plain English.

All of these experiences made me appreciate more than most the importance of state constitutions. It is worse than misleading, however, for a state official, especially a state attorney general, to oppose federal legislation on the basis of a constitutional theory that is directly contrary to a specific provision in the U.S. Constitution and has been rejected for over 150 years. That may be good politics, but it is bad law and bad policy. No one should be fooled that it has any basis other than political.

Was it political when the Virginia and Kentucky state governments stopped the Alien and Sedition Acts within their states after the Virginia and Kentucky resolves?  The two men who wrote those (upon which premise nullification rests) were Thomas Jefferson (the writer of the Declaration of Independence) and James Madison (the Father of the Constitution).  These men knew the Constitution well, and they believed in nullification.

Robert J. Martineau of Nokomis is Professor of Law Emeritus, University of Cincinnati.

In Liberty,

Tim Reeves

Tim Reeves is the State Chapter Coordinator for the Oregon Tenth   Amendment Center.

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6 Responses to “Selective Reading Of The Constitution”

  1. Tim says:

    Mr. Reeves – Please accept my apology for not making it clear my argument is against the originator of that premise, Mr. Martineau. I did not intend to direct my statement to you.


  2. the italicized writing is the article I am responding to, not my argument. I agree with your statement. The strawman was the work of Mr Martineau

  3. Tim says:

    It was stated: "Those who argue that a state law can preempt a federal law might want to consider how the theory would apply to the right to bear arms protected by the Second Amendment of the U.S. Constitution. If the nullification theory were accepted, it would allow state law to impose restrictions on that right beyond those allowed by the constitutional provision." Your premise is false. The second amendment is part of the Constitution, therefore it is Constitutional and by definition not subject to state nullification. Nullification only applies to UnConstitutional laws. In this case, no state can take away the peoples' Constitutional right to keep and bear arms, otherwise that amendment would be meaningless. (It appears you are attempting to make some kind of strawman argument here! )

  4. […] versus the Supremacy […]

  5. Awesome writing style!