Is the Federal Government Supreme and Above the States?

Sierra Times ^ | Robert Greenslade

[Sir Gawain]

Is the Federal Government Supreme and Above the States?

By Robert Greenslade

While observing the proceedings in a federal District Court several years ago, I was taken-back by the blatant arrogance of the judge masquerading as a constitutional officer. The case involved a civil dispute between two corporations. After setting a briefing schedule and reading the opposing attorneys the riot act concerning the conduct of his courtroom, the judge did something that illustrates the extent of the usurpation of power being perpetrated by the federal government. When one of attorneys told the judge he was unavailable for a motion hearing because he was scheduled to be in state court for a murder trial that same day, the judge came out of his chair and told the attorney to remind the state judge of the "supremacy clause" of the United States Constitution. He went on to state that since the federal government is supreme and above the States, the judge in murder case would have to change the date of the trial to accommodate the federal proceedings in his courtroom. If this federal judge had not been a constitutional renegade, he would have never asserted that the federal government is supreme and above the States.

The so-called "supremacy clause" of the Constitution is found at Article VI, Clause 1 and states in part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme law of the land…any thing in the constitution or laws of any state to the contrary notwithstanding.

Nowhere in this provision does it state the federal government is supreme and above the States. It simply states that the Constitution and the laws made in pursuance thereof are supreme.

Alexander Hamilton addressed the extent of this clause in Federalist Essay No. 33:

[I]t is said that the laws of the Union are to be the supreme law of the land… It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution… [Emphasis not added]

In the New York Convention of 1788 considering ratification of the proposed constitution, Hamilton responded to criticisms being leveled against this provision:

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. The states, as well as individuals, are bound by these laws: 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. In the same manner the states have certain independent powers, in which they are supreme…

In Hamilton's words we see the principles of limited government and enumerated powers. This clause does not expand federal power; it restricts federal power because that government only exists within the confines of its limited enumerated powers. When the federal government departs from the Constitution and enacts laws outside the scope of its delegated powers, those laws are not "supreme or binding" because the federal government does not exist outside of its limited enumerated powers.

In order for the federal government to be supreme and above the States, it would first have to have the constitutional power to modify or abolish the powers of the States. No such power was granted to the federal government by the Constitution. In fact, since the States created the federal government, they have the power to abolish or amend the powers of their federal government any time they wish.

The amendment process is found at Article V and provides two methods for proposing amendments. Two-thirds of the States [34] can request a Constitutional Convention or Congress [two-thirds of both Houses] can propose amendments. When a proposed amendment is adopted by Congress and submitted to the States for consideration, the States have the exclusive power to accept or reject the proposal and neither Congress nor a majority of the American people have the constitutional authority to over-ride their decision. In addition, if the States call a Constitutional Convention to amend the powers of the federal government, Congress is constitutionally powerless to stop them.

When a proposed amendment is under consideration by the States, it takes a vote of three-fourths of the States [38] to ratify any proposed change. Neither Congress nor a majority of the American people have a vote in this process. Likewise, neither the federal government nor the whole people can override a three-fourths vote of the States. The 38 smallest States, with a minority of the population, can bind the remaining 12 States with a majority of the population. This proves conclusively that federal government is not supreme and above the States.

There is another way to read this clause. As discussed in a previous article, Do the Constitution and the Powers of the Federal Government Pertain to You?, the Constitution is a compact or contract between the several States. If this clause is read in that context, it reads as follows: the contract between the several States, the Constitution, and all laws and treaties passed pursuant to the contract between the States shall be the supreme law of the land. It is the contract between the several States that is supreme, not the federal government. That government is simply the entity designated by the States to execute the limited functions entrusted to it by the terms of the contract.

Unfortunately, the federal government is using the illusion of supremacy to awe the States and the American people into undue obedience to its unconstitutional dictates. One example is the theft of land within the several States. The federal government cannot constitutionally acquire or exercise any legislative jurisdiction over land within one of the United States unless it complies with the consent requirement enumerated in Article I, Section 8, Clause 17. To get around this lack of authority, the federal government has used the supremacy clause to invoke condemnation or eminent domain power to take control of the land.

It should be remembered that eminent domain is an attribute of sovereignty. The term "sovereignty" is interchangeable with the word "supremacy." Before the federal government could claim a general power of supremacy within the several States, it would first have to establish that the States surrendered their sovereignty to the federal government when they adopted the Constitution.

In Federalist essay No. 32, Alexander Hamilton reiterated the principle that the States, under the Constitution, would retain every pre-existing right [power] that was not exclusively delegated to the federal government:

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. [Emphasis not added]

Hamilton noted that the Constitution would establish a "partial union" between the several States. If the States were being consolidated into one nation they would not be delegating powers, they would be surrendering powers. That would include their sovereignty. In reality, the States did not surrender their sovereignty; they only delegated a portion of their sovereign powers to the federal government for the limited purposes enumerated in the Constitution. Thus, since the Constitution established a "partial union" between the several States, and the federal government was granted its powers from the States via the Constitution, the federal government cannot be supreme and above the States.

The failure of the States to control their federal government will have dire consequences if it is allowed to continue asserting supremacy over the States. In the New York Ratifying Convention referenced above, Hamilton warned of the consequences if the States ever lost their powers:

The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.

If the States and the American people do not awaken and assert their supremacy over the federal government, that government will ultimately turn Hamilton's warning into reality.

[Ronly Bonly Jones]

Agreed. Unfortunately, the 14th Amendment almost completely transformed us from a Federal Republic into a centralist, totalitarian democracy, controlled by whomever happens to be in power on the Potomac. >>

Yeah, right. It also kept Alabama from saying that the black man has to be treated the same as the white under the law. Isn't that the REAL problem for you Neo-Confederates?

[Ronly Bonly Jones]

CORRECTION: Yeah, right. It also kept Alabama from saying that the black man DOESN'T HAVE to be treated the same as the white under the law. Isn't that the REAL problem for you Neo-Confederates?

[detsaoT]

Yeah, right. It also kept Alabama from saying that the black man DOESN'T HAVE to be treated the same as the white under the law. Isn't that the REAL problem for you Neo-Confederates?

I've got a better question - Why do you feel the need to bring race into this equation (which I nor anyone else here have mentioned), when the argument is over THE FORM of our Government, and how SIMILAR or DIFFERENT it is from its original design? I dare you to point out the bigotry in my previous statements, or the statements of others on this thread.

As an aside: Which state was the Klu Klux Klan most active in at its height? Was it:

a. West Virginia
b. Mississippi
c. Illinois
d. Alabama

[Ronly Bonly Jones]

(e), Michigan. My home state, today home of the largest private army in the Western Hemisphere. Alas.

[Ronly Bonly Jones]

Why do you feel the need to bring race into this equation (which I nor anyone else here have mentioned), when the argument is over THE FORM of our Government, and how SIMILAR or DIFFERENT it is from its original design?>>

Because that is the eternal agenda behind the neo-confederate view, publicly acknowledged by them or not, and must be continually dredged up and pointed to, lest fools be deceived. Give states "back" powers that they gave up when the Constitution was signed (and confirmed when Amend.XIV was added to the Constitution) and oppression of minories will follow as night follows day. Maybe attributing that view to you personally was bad form (it probably was), but ultimately, States-First neoconfederacy is political poison.

[justshutupandtakeit]

While it is nice to see Hamilton referenced, it is disturbing to see his name used to try and sell this error-filled bill of goods.

The constitution is not now and never has been a compact of the states. It is a creation of the the American PEOPLE and NOT of the States. Thus, special conventions of the American PEOPLE were called in states specifically so that no state could claim a right to secede. Had the intention been to allow the states to create the constitution there would have been no need for any special actions, a mere legislative enactment would have sufficed. Nor were conditional ratifications accepted, for the same reason.

Federal government is a creation of the Laws created under the Constitution and that is where its supremacy lies. The judge would not claim otherwise or that illegal actions by the feds have any supremacy.

[justshutupandtakeit]

States never granted citizenship. That power was clearly stated to be federal within the constitution. Article I, Section 8 paragraph 4 shows that your statement is false.

[justshutupandtakeit]

Oh, and there NEVER was much attention paid to the 9th and 10th. They have been essentially irrelevent to the development of constitutional law and rightly so since they applied only to elements within state control such as election laws, health and safety regulations, police powers, control of slaves etc. They cannot affect any NATIONAL concerns.

[HenryLeeII]

Are you saying that the 10th Amendment being "for all intents and purposes [worthless]" is a good thing? Or, are you just stating it as a political fact of the United States circa 2003?

[detsaoT]

My entire point was that the form of government set up for us by the FEDERALISTS (which, I will add, had ABSOLUTELY NO RELATION to the Confederate movement, or any modern representation thereof) provided greater freedoms for us than what we have today. I would further venture to say that, because of the RAMPANT CENTRALIZATION that has happened in our society, WE ARE LESS FREE than we ever were under the Tyrants that ruled us before the American Revolution. (If you don't believe me, consider that tax rates in Colonial America were what would end up being around 5% of the average person's income, though the taxes were never actually taken FROM your income. Compare that to the enormous taxes we pay today, and decide for yourself.)

I guess that would make me a Federalist - I believe FIRMLY that the people should govern themselves via the states. If you do not like the way your State governs itself, you have the freedom to select a State which agrees with your position. I do NOT think it appropriate for the citizens to battle out ANY home-rule issues in Washington, certainly not in the Supreme Court.

Out of sheer curiosity - would I be correct to presume, based on the stylings and position of your arguments, that you are a Libertarian?

[justshutupandtakeit]

That is certainly nonsense, there would have been no 14th amendment if the defeated Slavers had not gone on a Reign of Terror against the newly freed slaves. Those atrocities and other examples of the intent of the ex-Slavers to degrade and reduce to neo-slavery the Blacks provoked Congress into passing those amendments. Congress was intent on preventing the Blacks from having constitutional rights denied them by the ex-Slavers.

It is simply a LIE to claim that the 14th amendment was one of the reasons the War was fought. It was fought entirely to preserve the Union by the United States and entirely to preserve slavery by the ConfedeRATS.

[HenryLeeII]

The constitution is not now and never has been a compact of the states. It is a creation of the the American PEOPLE and NOT of the States.

Wrong. If you would ever bother reading the document you would see that Article VII clearly states that the Constitution is ratified upon the consent of nine STATES. It was composed and ratified by committees representing the states, states are represented (in the Senate) just as We the People are represented (in the H.o.R.), and the states elect the president (electoral votes count, not popular votes). We are a FEDERAL REPUBLIC, not a democracy, because as Plato once stated, democracy leads to despotism and anarchy.

[tracer]

As already pointed out above, said supremacy applies only to the US Constitution and Federal law over those of the states, and not to any such "supremacy" over the administrative scheduling of state actions or the execution thereof...

[justshutupandtakeit]

LoL.

[squidly]

There is nothing wrong with our constitution. Everything is wrong with our political system.

Correct. What's happened is that the states have become dependent on federal money and are generally afraid to buck the feds for fear of falling off the gravy train.

[justshutupandtakeit]

"We the People of the United States,...." NOT "We the States of the United States...." and your other statement is false as well, did you deliberately misquote or was it just a mistake of ignorance?

"The Ratification of the CONVENTIONS of nine States,..." NOT "ratified upon the consent of nine states." BIG difference.
Those of a suspicious mind might think you were deliberately attempting to deceive.

Another error in your short post- the Senate was designed to represent the Permanent Interest of the Nation NOT the States. It was to be the equivalent of the House of Lords in Britain and to restrain the democratic tendencies of the states.

[justshutupandtakeit]

Plenty to rip apart in that post for a class. Filled with ideology and error.

[HenryLeeII]

I've got a better question - Why do you feel the need to bring race into this equation (which I nor anyone else here have mentioned), when the argument is over THE FORM of our Government, and how SIMILAR or DIFFERENT it is from its original design? I dare you to point out the bigotry in my previous statements, or the statements of others on this thread.

I haven't debated Ronly Bonly Jones, but I have taken on some of the opposition that haunts the Civil War/secession threads on Free Republic, and they invariably have to get a racial shot in there from time-to-time. Either that or they simply cut-and-paste items from other websites that have nothing to do with the point of the discussion, and then claim that that supports their contention that the 10th amendment doesn't mean what it says.

Ask them straight-out if secession was legal in December of 1860 when South Carolina withdrew and you're bound to get in return a smattering of the Militia Act and Judicial Act, and some ex post facto amending of the Constitution by the Supreme Court (which, of course, lacks any authority to create legislation or amend the Constitution). After digging my teeth into WhiskeyPapa for a while I finally got him to admit that there is no explicit Federal or Constitutional ban on secession, but he still clings to a belief that unilateral secession is not allowed (without citing a ban); and another Freeper (maybe Non-Sequitur?) argues that the states should have petitioned the Supreme Court or Congress in order to be "allowed" to secede. My argument that no specific ban on the act overrides their belief in non-Constitutional means for secession is ultimately met by (and I'm paraphrasing here): Well, Lincoln's army beat the Confederates on the field of battle, so that's all that matters...and then WhiskeyPapa has to call we Constitutionalists "traitors" and "liars."

[Ronly Bonly Jones]

No. I am a Federalist. As in a James Madison Federalist. As in the Federal Government has been supreme *ab initio* (i.e., from ratification in 1789).

More-Power-to-the-States is a one-way road to the next civil war.

WE ARE LESS FREE than we ever were under the Tyrants that ruled us before the American Revolution.

That is silly-to-the-power-nine. Demonstrably untrue. Anyone can go to college if they want. Almost anyone can buy a house. Everyone can, and does, buy and own a car, and can go where they listeth. The only way of coming under the thumb of the Federal Government is by committing a federal crime or by advocating its violent overthrow. Centralization doesn't just PRESERVE freedom, it IS freedom. "Why should I trade one tyrant 3000 miles away for 3000 tyrants one mile away?" -- Mel Gibson.

[Ronly Bonly Jones]

Ask them straight-out if secession was legal in December of 1860 >> Yeah, well, the Constitution was silent, but the cannons were not. Settled beyond question, as mentioned, in Appomatox.

The question of whether it was "legal" was trumped by was it "right," and insofar as they quit to maintain slavery, the answer is, "no." Had the answer been otherwise, this conversation would be in German.