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The Supremacy Clause Smackdown – A Dissection

Brion McClanahan writes on the Supremacy Clause of the Constitution:

When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.

In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.” Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.

As more states are joining in, it is worth noting that so-called constitutional scholars do not really exist. The constitution is not a very difficult document to understand. The real meaning of the phrase “constitutional scholar” should be replaced by “constitutional case law scholar”. However, a close look at what such a scholar actually knows about the origins of the constitution and what the founders intended it to mean makes it abundantly clear that many so-called scholars are not, in fact, scholars in the sense of understanding both the foundations and subsequent evolution of the document’s impact on this country, nor modern deviation from the original intent of the founders. One by-product of the modern study of constitutional law is that for many in the field case law and precedents are primary while the foundations and history of the document are glossed over or entirely ignored. What does that tell us? It tells us that, since the foundations have been mired and replaced by 200 years of nationalist tendencies instantiated by Marshall with little relief in the intervening years, many current scholars in in the field are actually completely clueless or chose to ignore inconvenient facts that don’t fit the narrative of their worldview. Ask them about the Marshall Court and you will get a list of cases along with commentary, but mention that it was the Marshall Court that took the sound defeat of nationalists at the Philadelphia Convention and turned it into a victory and you will be met by a blank stare or a nationalist talking point that exposes the naivety or agenda of the speaker. You also will not hear any mention of why America in 2010 looks a lot like America in 1776 in reference to the many being lorded over by the few. Brion McClanahan continues (emphasis mine):

Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct…

…The so-called “supremacy clause” of the Constitution, found in Article 6, 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

As stated earlier, the constitution is not a difficult document. So grab your nearest copy and look for the words “national healthcare” or any synonymous phrase. The fact you will not find such wording indicates national healthcare is not one of the enumerated powers of the federal government. How embarrassing for Engstrom. Of course, that does not stop him from continuing to display a complete ignorance of the constitution. Read the whole article. Here I wish to point out a few other pertinent items (emphasis mine):

By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:

This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].

Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles….If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”…

…Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “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.”

Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.

The crux of the article that will shape the debate as ObamaCare lawsuits wind their way to the Supreme Court is well articulated (emphasis mine):

Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare. Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly. In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”

I guess Mr. Siegel has failed to consider that Idaho bill HO391 was passed by a legitimate legislative body elected by the people of the State. That would make it lawful.

Brion McClanahan recalls a very telling quote by a great patriot:

Of course, this debate ultimately boils down to loose interpretation verses strict construction. Thomas Jefferson had the best line on this issue.

When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”

Herein lies the crux of the matter – the blank space. The blank space that has been filled in for 200 years by those who would create an ecosystem ripe for the growth of tyrannical rule and contempt fo the unwashed masses. How else does one explain the lucre and arrogance of Congress and the President force-feeding ObamaCare to an unwilling public? The burning question is, will the Supreme Court side with the other two branches?

For two centuries the judicial branch acted the enabler to the Congressional addiction to power. Two centuries to grant Congress virtually unlimited powers. Two centuries for a judiciary promising to uphold the constitution while crossing two fingers together behind their collective backs. Each finger represents the usurpation of powers that belong to you and me. One finger is the Supremacy Clause and one is the Commerce Clause. It will be very telling as ObamaCare lawsuits make their way through the maze of the court system to see if the judiciary will finally imply it understands its own role in shredding the constitution or whether they will continue to conspire with the executive and legislative branch in a triumvirate of tyranny.

This battle will prove once and for all whether tyranny rules our land. I doubt it will resolve the issue of state’s rights vs. nationalism. An entire compendium of cases since 1810 would need to be undone and power wrested from the federal government either by the people along with their states, or by the people under their own power through non-violent passive-aggressive massive civil disobedience. My money is on that later requirement.

Highly recommended article: What Would Jefferson Do? Nullify Now!

crossposted.

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