What Did the Supremacy Clause Mean?

That poor soul from the other day who insisted Lincoln never said that blacks shouldn’t be voters or jurors, or intermarry with white people, or that he had no intention to interfere with slavery where it existed, still thinks the Constitution’s Supremacy Clause makes state nullification unconstitutional.

The Supremacy Clause merely begs the question. It reads, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…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.”

“Grand Old Partisan” takes this to mean:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws, whether or not in pursuance of the Constitution… 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.”

In other words, he accepts the interpretation current in American law schools. I do not intend this as a compliment.

Here’s what the people were told it meant at the state ratifying conventions, which is what matters. (I’ll be a sport and not even mention the proto-nullification arguments made at the Virginia Ratifying Convention, which settle the argument, though you can get the story in my Nullification or in Kevin Gutzman’s James Madison and the Making of America.)

Alexander Hamilton, at New York’s convention: “I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding” (emphasis added).

In Federalist #33, Hamilton added: “It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution….”

Thomas McKean, at the Pennsylvania convention: “The meaning [of the Supremacy Clause] which appears to be plain and well expressed is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws, thus made in pursuance of the Constitution, shall be binding upon the states” (emphasis added).

James Iredell, at the First North Carolina convention: “When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.”

For more on this, see Brion McClanahan’s Founding Fathers Guide to the Constitution.

Me

This is an ass wooping.
Tysone Ranes/@SitnNtheKtchn

Every time I read articles like this and find sources like Tom Woods or Chuck Baldwin and the like, I feel inspired and thankful. I have a horrible public education and just barely made it out of high school. I am a 3rd Generation Electrician who never found interest in schooling and now the more I learn the more I understand why I didn’t care. I attribute it to allot of reasons and one being who wants to learn and believe fables, like the War for Southern Independence was for the Purpose of Ending Slavery. The truth is actually addicting. Thank You Mr. Woods, I am learning, fighting and enjoying it.
Patriot Mom

If you do not wish to learn no one can teach you. If you wish to learn no one can stop you.
ThomasC

This blogger is just someone who believes something because he’s been told to believe it. There is no desire for learning and a refusal to even use his mind.
StandardConny

As a federal practice lawyer for almost 30 years now, I am very familiar with the PLAIN MEANING of the so-called “supremacy clause.” One needs to read EVERY WORD and try to give meaning to all words. When one does that, one is left with no option other than the one Tom propounds, i.e., ONLY laws passed “in pursuance” of the Constitution are binding.

The problem comes in the question: Who gets to decide what ‘in pursuance’ means? Sadly, this question was not directly addressed and the US Supreme Court quickly decided that it gets to decide the question in 1803. See Marbury v. Madison.

Since the issue was not addressed in the Constitution, I’m not at all comfortable with the body who decided the issue concluding that THEY get to decide. There’s far too much conflict of interest and I seriously doubt that would have been approved if it had been proffered as part of the Constitution. I think it was Tom who proposed the hypothetical that his mother gets to decide any disputes he has with his neighbor. Same problem here.

The Supremes are also too far removed from the people and far too politicized to be able to make this crucial determination. Experience shows us all too clearly just how bad an idea this has become. Wickard v. Filburn was the case in law school that opened my eyes on this issue. The Supremes cannot be trusted.

I have previously proposed a Constitutional Review Board (CRB) amendment to the Constitution whereby the States appoint, in alternating, random drawings, members for limited terms to sit and hear only such cases as are certified to it by an appropriate process perhaps like the current process for Supreme Court review.

Jury selection techniques could be used for appointments to the Board since interpreting the Constitution does not require a law degree. I’d be happier with the electrician who commented here sitting on the Board for a term than I would with the typical Law “professor” I encountered who gives not a whit what the words in the Constitution say.

The precise appointment details would be up to each State. Also, a ruling of the CRB would not be binding on any entity that was NOT a party to the original case. This gets rid of the mess called “stare decisis.”

No system is perfect, but the current state of affairs is dividing us and driving us to ruin. Nullification, secession and rebellion are all realistically possible given the extreme polarization I’m seeing today. And, FOR GOOD REASON! I’m fed up with the path we’re on, too. I fear a catastrophe is imminent.

With the benefit of 200+ years of experience, we can see that we need some amendments to the Constitution to clarify a few issues such as foreign affairs, abortion and the instant issue of constitutionality.

Perhaps it is a lost cause but I can’t help but entertain myself with ideas about how to ‘save’ the country and the principles it was founded upon…
Joe

Hmm, I see that Mr. Zak hasn’t replied yet. No doubt this is because he has clearly had his ass handed to him and he’d just as soon forget that this argument ever happened. I am pretty sure that the reason isn’t that he hasn’t seen the response yet, because I am quite certain that this particular debate is probably the most attention he has gotten in quite some time, possibly ever.

I also think that it is hilarious that he thinks that Tom is a Democrat (capital “D”) and is stuck in that little 2.7 inch space that Tom is so fond of talking about. To this guy all of political philosophy can be found between Mitt Romney and Hillary Clinton. When Tom first started making that joke, I kind of thought it was a little cheesy, but now we have absolute proof that some people really are that deluded.

With as clueless as Mr. Zak is at political philosophy and history, we should be thankful that he hasn’t tried his hand at economics. Because if he did, I am quite sure that we Austro-libertarians could prove that he is a socialist/etatist/collectivist like his boy Mitt.

Fetz
Joe

Oh, wait. He’s already shown to be an etatist and a collectivist. 2 down, 1 to go.

Fetz
Matthew Davidson7

Not only does Tom Woods explain in an expert manner, he is also the the only writer I can recall to correctly use the phrase “beg the question” correctly. To be the question does not mean to raise the question.
Matthew Davidson7

I apologize for the split infinitive in the previous sentence.
ImpactBastion

To complement your insight, here is what I (and I am sure many others around the nation) are being taught in our Con-Law classes:

[Paraphrasing and 'actual' quotations from my notes]

In the decision for McCulloch v. Maryland, Chief Justice Marshall writes “Congress may enact laws that are reasonably related to its enumerated powers so long as it does not violate any express prohibitions.” (Nevermind the impending precedent for the establishment of a national bank…).

Accordingly, the entire decision is supposed to “put teeth into” the Supremacy Clause, ensure Article I is read in an expansive way, and assert that the states may not undermine the powers of Congress.

Flowing into “Implied Congressional Powers,” Marshall wrote that the enumerated powers are merely “examples” of powers the Congress can utilize—those enumerated being Article I, Section 8, Clauses 1-17. Article 10 of the old Articles of Confederation was the apparent basis for the 10th Amendment. Virtually the same, Article 10 stated that “all powers not ‘expressly’ delegated” to the U.S. by the Constitution are reserved for the states. The 10th Amendment conveniently leaves out “expressly.”

Marshall is said to have compared the two documents and stated that, since we became a “union” under the Constitution, the states ultimately lost their sovereignty with its ratification. And, since they (purposely?) left out “expressly,” the Congress was afforded many more powers deemed to be necessary to any issue that may arise.
In short, Marshall held that a congressional power must only be within the “scope” of the Constitution and if a power was not expressly prohibited, then it is necessary. Thus, Clause 18 officially became the Necessary and Proper Clause.

Thomas Jefferson, God rest his soul, came along and reportedly wrote, “even if you agree with my cousin John, which power is this bank related to?”
But of course, Marshall had written that the states could not control, impede upon, or route any action of the federal (central) government.

This decision would be the devastating blow to the ‘Doctrine of Strict Construction’ and the ‘Doctrine of State Sovereignty’ because he claimed that we are a government of the people, not a government of the states. (Later a basis for that funny event around 1913 of which we are all familiar).

[End recall of notes]

Much in the way of relating to your point regarding stare decisis, this seems to be the mess we have gotten ourselves into and the deprivation of any immediate recourse. Keep in mind, this is all part of the indoctrination schema helping to embed the mantra of “long live the living Constitution!” in our heads. All kinda seems like backwards logic, doesn’t it?(So Mr. Woods, do not feel too bad for the ol’ partisan guy. I am sure he is simply in regurgitation mode and not seeking out any material other than his old college notes or something).
sm

In responding to “Who gets to decide what ‘in pursuance’ means?” I believe Federalist Greorge Nicholas answered that question in response to George Mason’s generalizations of the General Welfare clause. Nicholas stated that if the Judiciary fails to delcare the law void then the right belongs to the people to declare it void. (DHRC 10:1327).

One can deduce that the power belongs in the states due to the language presented in the Virginia Form of Ratification where notable Federalists such as John Marshall, George Nicholas, Edmund Randolph, James Madison, and Francis Corbin asserted state sovereignty and secession (DHRC 10:1546).
sm

John Marshall or Henry Lee (authorship is disputed, but I believe Marashall worte it) used the same left “expressly” out argument in defense of the Alien and Sedition Acts of 1798 in the minority report against V/K Resolutions.
http://grandoldpartisan.com/ Michael Zak

Your nullification doctrine is nullified by the Supremacy Clause of the Constitution: federal law is supreme over state law.

The notion that states could nullify federal law underpinned the Confederate rebellion against the federal government.

I make that point in Back to Basics for the Republican Party, my history of the GOP. Clarence Thomas cited it in a Supreme Court decision. See http://www.grandoldpartisan.com for more information.
Cocosx

I’m from the Czech Republic and I confess I don’t know many details about American history.

Could someone please explain to me why the ratification conventions is what matters? When a law is passed by our parliament, the text matters, not the rubbish the deputies said in the process. If everyone at the convetions said “oh, by this text we actually mean this, so don’t worry”, why didn’t they make it clear in the actual text?

Thanks.
http://www.TomWoods.com Tom Woods

So you’re going to pretend the text of the post above does not exist. Good strategy.

Why would I be interested in your history of the GOP, when you know so little about Lincoln? You said, “Lincoln never said A, B, and C.” I then quoted two very prominent places in which he said precisely A, B, and C. Most people would have slithered away, embarrassed.
http://www.TomWoods.com Tom Woods

Let’s leave aside the compact theory of the Union. I doubt you know what it is. Let’s just stick to the basic fact: nullification had zero to do with the secession of the South. I guess you still haven’t read “Nullification: Answering the Objections,” in which I note that the South was complaining about the NORTH nullifying.

When you can answer my essay, we’ll talk.
ImpactBastion

I am not aware of Henry Lee’s involvement in the A&S Acts–are you referring to the economist? The only information I could gather was that he was not a proponent of nullification.

It seems to all rest on Compact Theory. Decisions for Chisolm v. Georgia, Martin v. Hunter’s Lessee, McCulloch v. Maryland, and Texas v. White were all in opposition to the Compact Theory. (The SCOTUS rejected it in all decisions, forming the foundation for the later nullification/secession issues pre- and post-Civil War).

Martin v. Hunter’s Lessee (1816), I believe, is the first time the argument was made but the decision was written by Justice Story–Marshall recused himself (though it is reported he still maintained a guiding hand).

The only related and prior case (Chisolm v. GA) was decided by John Jay and established the basis for the “people”/”union” argument from the Preamble but not the Articles of Confederation argument dealing with the usage of “expressly.”
http://pulse.yahoo.com/_XXUI2U5IPS7IABBMSM4I27BYDA chris

Epic.
http://pulse.yahoo.com/_XXUI2U5IPS7IABBMSM4I27BYDA chris

It’s because over a couple hundred years the English language has changed. In order to understand the actual meaning, we go back to the explanations of the actual writers of the constitution, what they promised the states in order to secure ratification.

In these letters the meaning becomes quite clear: The federal govenment is limited to the powers enumerated; the states and the individual retain all other authority.
Guest

Question begging always IMPLIES an unanswered question, though, right?

There’s a sense in which a follow up question must be asked … “begged to be asked”, if you will.

Is this right?

What is the purpose of the word “beg” in the phrase?
http://pulse.yahoo.com/_XXUI2U5IPS7IABBMSM4I27BYDA chris

Laws passed in accordence with the constitution are supreme. Laws that are unconstitutional may be, and should be nullified by the states.

This seems very simple based on the actual reading of the constitution, of the phrase “supreme law of the land” taken in context.

To take it out of context and claim it gives the federal government unlimited power over the states simply because the word “supreme” and “law” are found in print is to miss the meaning of the entire document, the declaration of independence, and the revolutionary war.
ThomasC

Because the people created the federal government. It is the people who gave the federal government its limited powers, and it is the people who voted on them. Therefore, to understand the contract that created and bound the federal government (the Constitution), it is important to look to those debates to see what the people understood the various provisions to mean.
ThomasC

Why do you continue to ignore the entirety of the Supremacy Clause? The notion isn’t that states can nullify federal law; it’s that the states can nullify unconstitutional law. And nullification had absolutely nothing to do with secession.

Your logical fallacy of appeal to authority is meaningless, and I have just lost some respect for Mr. Thomas.
http://grandoldpartisan.com/ Michael Zak

Tom, you’re not thinking clearly. If a state can nullify a state law then it is superior to the federal government. As any fire-eating Confederate would have told you, it’s only a small step from state supremacy I’ve federal law to state supremacy to the federal Union and then on to secession.

See http://www.grandcoldpartisan.com about Back to Basics for the Republican Party. My book denounces Confederates and neo-Confederates.
Joe

“My book denounces Confederates and neo-Confederates.”
Damned zombies, they just keep the bull coming.

The point that Tom is making is that nullification is a means of contesting an unconstitutional law without seceding. Further, without nullification you have nothing more than a centralized government that answers to no authority. The parties to the constitution have every right to ignore unconstitutional laws, because they created the union and are thus the only check against federal tyranny.

If a federal law goes beyond the limited powers granted to the federal government, what recourse do you propose be taken?

Fetz
http://www.TomWoods.com Tom Woods

I’m sure your book says a lot of things. Given your knowledge of history, the mere fact that you include something in your book means relatively little to me.

My book Nullification explains the fallacies in your thinking, in systematic fashion. Once you understand the compact theory of the Union, you see the problems with your arguments. The fact that you are a Hobbesian is what is interfering with our discussion. You literally cannot understand my point of view because your presuppositions exclude it from the start.

The peoples of the states are indeed superior to the federal government, in the sense that the creator is superior to the created. Or do you ask your literary agent to tell you what powers you have delegated to him?
http://www.TomWoods.com Tom Woods

Here you are surrounded by a federal government that bears ZERO resemblance to the government outlined in the Constitution, and your big concern is the states. Do you at least understand why someone would consider those to be strange priorities?

On the other hand, you believe Mitt Romney, the Dole/Bush/McCain of 2012, will solve our problems.
Mike

“My book denounces Confederates and neo-Confederates.”

http://www.youtube.com/watch?v=TrcM5exDxcc
Guest

The whole purpose of our Constitution is to secure our individual, inalienable rights by providing for a government which will protect these rights, but will not abuse the people under the color of authority.

This is done by confining the government within a specific set of powers, and making sure that if there ever needs to be a change to the Constitution, that it happens because the people of the several sovereign states have deliberately wished it so.

If the government can just redefine the words in the Constitution, then we are not free. So, in order to understand how government is to be bound by our Constitution, we must look to the people who ratified the Constitution to understand what they understood the powers and limitations of government to be.

It’s not that we think that our Founders are “Gods”, as the Clown in Chief, Obama, has misrepresented our position; But rather, the government needs to know its limitations, and we ultimately get that understanding by those who ratified it.
Guest

Scholars would normally call the process of determining the meaning of the Constitution, “textual criticism”; But because the Constitution binds government, it’s conveniently dismissed as being anachronistic.
Guest

The question of who gets to decide what “in pursuance of” means, was actually addressed:

Federalist Papers 83

“The rules of legal interpretation are rules of common sense, adopted by
the courts in the construction of the laws. The true test, therefore, of a just
application of them is its conformity to the source from which they are derived.”
Arash

SLAAAVERY!!!!
http://plenarchist.wordpress.com/ plenarchist

“I have previously proposed a Constitutional Review Board (CRB)…”

Maybe. I had a similar notion once but abandoned the idea after concluding such a Board would just become another tool of the establishment. The party apparatchiks would corrupt the entire process such that the only people who are allowed on it will have to be members of their club. A truly independent group would not be tolerated.

“… and the principle it was founded upon…” Increasingly, I’m wondering just what those principles were. I’m certain now that the whole liberty-thing was just so much rhetoric. If the Founders had wanted freedom for the People, the Constitution would have created a very different kind of Fed’l authority. Madison and Co. knew full well that a republic is rule by elites and that suited their purposes. Somewhere in Limbo, Aristotle is laughing his ass off.

There’s been a 220+ year time-out in achieving TJ’s ideal of a nation where “all men are created equal…” As long as there is a political class, there can be no freedom. They infect and corrupt everything they touch. That’s why I think trying to resuscitate the Constitution is a waste of time.
dick clark

Slavery? Racism! Jim crooooooow. Brains…
John

Tom, I really appreciate posts like this one. It shares forgotten history that is in plain site which many are either too lazy or too corrupt to unearth.

Thank you.
Jeff Oxman

“Begging the question,” in rhetoric, means to assume the conclusion in the proposition. The latin petitio principii, means ‘assuming the inititial point.’ Sometimes it is called ‘circular reasoning.’
Jeff Oxman

Begging the question is a cumbersome phrase and I, for one, am happy to see it replaced with the phrase ‘circular reasoning.’
StandardConny

plen

The principles of our country can be gleaned by simply reading the text of the founding documents. You don’t have to guess what evil plan Hamilton secretly concocted or wonder if TJ was really a dick because he owned slaves.

The WORDS convey the principles and you don’t have to wonder about them. If the words were given their plain meaning, America would be a much better place for you and me and our kids.

I know I won’t convince you because you’ve decided the Constitution is an “epic fail” and needs to be scrapped so we can start over, but I hope some people reading this will see that it’s not necessary to get into all the personalities of the FF in order to understand the great, founding principles they managed to espouse. It’s the people of our country who are epic failures – not the principles.
http://plenarchist.wordpress.com/ plenarchist

I agree the Founders “stated” principles promote freedom, but in practice our Constitutional system doesn’t. I think they realized this the day it went into effect. They tried and failed for various reasons. This is indisputable given where the nation is today (and has been really since 1789).

Whether that was deliberate or accidental is not relevant now. But what any engineer knows when designing a system for people is not to design it based on what people *should* do but on what people *can* do. If a political system is expected to promote an outcome (like sustainable freedom), it must be designed to account for the weaknesses of any of its users (the People) in order to maintain its integrity.

Unfortunately, the Constitution doesn’t do that. It’s like a highway engineer saying that if people will just obey the speed limit signs (the rhetoric), then he doesn’t need to design safety features into the road. But of course in the real world, people make mistakes and do stupid things which is why safety features are designed into any system people are expected to use to account for their failings.

I think then that a well-designed political system that is expected to promote sustainable freedom must be “engineered” with fail-safe measures to avoid freedom losses. That means there must be measures (like choosing public officials by lot and recall votes) to counter the political “hackers” from undermining the integrity of the system (the Constitution in our case).

The Founders tried (like with separated powers) but failed. It’s like someone having a brilliant idea but failing in the execution… and execution is equally important. That’s why the Constitution needs to be reinvented from the ground up with the objective of providing the necessary protections against corruption and loss of integrity. IMO even with a momentary stay from corruption (maybe with the nullification movement) without rebuilding a Constitution with safe-guarding freedom in mind, we end up right back at the same corrupt system we have now.
ImpactBastion

This reminds me of Ben Franklin’s purported response to the woman asking him what type of government the Constitution was crafted to engender:

“A republic, if you can keep it.”
ImpactBastion

Your point is laudably refuted and debunked in chapter two of John V. Denson’s “A Century of War.”

(Recommended reading for anyone interested in Lincoln’s history and the circumstances surrounding the outbreak of the war).
StandardConny

plen

In support of your position was none other than TJ who commented that we’d need periodic revolutions. Presumably, those would be followed by a new system.
http://www.facebook.com/people/Nick-Mcalpin/797175706 Nick Mcalpin

”Nullification, secession and rebellion are all realistically possible
given the extreme polarization I’m seeing today. And, FOR GOOD REASON!
I’m fed up with the path we’re on, too. I fear a catastrophe is
imminent.”

As an engineer that was interested in law school until economic reasoning drove me away from it, I have interpreted the same outcome with much fear. I was hoping that maybe I don’t understand or am just radically Libertarian. It truly concerns me that someone with your credentials comes to this conclusion. It is prep time.
http://www.facebook.com/people/Nick-Mcalpin/797175706 Nick Mcalpin

Ive made this argument many times with friends and foes, “Cognitive dissonance” comes to mind.
http://www.facebook.com/michael.p.shipley Michael P. Shipley

Whether it’s “legal” or not for a state to nullify federal laws is irrelevant. What are the feds going to do? Sue a state that nullifies obamacare? All the verdicts will be nullified by the state.