Posted on 07/23/2003 7:38:05 AM PDT by Sir Gawain
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Is the Federal Government Supreme and Above the States?
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By Robert Greenslade
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| 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. |
The language of the Preamble (which has no legally-binding language, unlike the Tenth Amendment) is a bow to Madison's concept of dual sovereignty, in which the states are the people and people are the states. Also, that pesky preposition 'of' has meaning, but I'm sure a word of a mere two letters is beneath your attention. They didn't say "We the people, in order to...." they said "We the people OF the United States..."
Another fact that I pointed out in my "short post" (hmmm, is there a complex in hidden in that odd phrase?) is that the states are represented by the Senate. Why else would there be an equal number for each regardless of population? Why was this offered as an inducement to the smaller states who feared being dominated by the Virginia's and New York's? Yeah, that's it, because Delaware wanted to recreate the British Parliament that we just fought and broke away from!
My B.A. is in history, I am published in the field, and have extensive professional experience, as well. So there goes that little theory of your's.
...the conventions were designed to represent the American people GATHERED in states. Why go to that bother if all that was desired was State approval? Legislatures could do that. Nine states were required so as to not have a small majority but it could have said 10 or 7. But the larger number indicates a higher probability that a majority of the People desired ratification.
Wrong (I'm in a hurry here, so this may be a "short post"), because regardless of the number of states specified, there is the possibility that only 50.1% in each state votes in favor of ratification, or it could be that low in one state and 70% in another. The fact remains, there was not a single national vote by the individual; states held elections.
People OF merely indentifies WHICH people is referred to NOT the people of Mexico or the people of Canada but the people of the United States. Geez, what a red herring.
No, we the people knew which people were being referred to. Your contention there is a red herring.
Equal representation of the States in the Senate does not refute the fact that the Senate was to represent the long term interest of the Nation. Securing the loyalty of the small states was in that interest of keeping the Union strong and perpetual. Large states agreed that it was in the long term interest to keep the small states in the Union and agreed to this concession.
The senate was intended to have a stabilizing effect against the feared mobocracy. It represents the state, which is why the body has the vote (as opposed to the House) in such matters as foreign treaties, SCOTUS jurists, etc. In other words, things that affect the states, SINCE THE STATES CREATED THE CONSTITUTION, RATIFIED IT, AND GAVE THE FEDERAL GOVERNMENT IT LIMITED POWERS!!!!!
To normalize the naturalization process, Congress could make the rules for the process. However the states awarded citizenship because where you lived was in a state. Besides, if this were not true, there would have been no need for the 14th amendment. 
My major in history, with a concentration in the colonial and early Federal era's, trumps your minor. I did very well in Constitutional Law 401, and stopped the left-wing-but-fairly-honest professor a few times. My publications have dealt with several topics from the colonial through Civil War era's, and have appeared in nationally- and locally-published journals.
Never said anything that conflicts with your statement about the possiblity that a majority of states would not mean a majority of the people or only a small majority agreeing with the ratification. Just said that having a larger number required for ratification increased the probability that a majority of Americans agreed. Who ever said anything about votes by individuals? Not me. Few individuals could even vote, particularly in the South. However, it is true that the elections held for the constitutional conventions were the most representative of any elections of that day.
I brought up the idea of individuals not voting directly for ratification in a national election, because it disproves your theory that we the people created the Federal government, when in fact, any person who can read can see for himself/herself in the clearly-written Constitution that it was the states that ratified it, or in any history book that state representatives met in Philadelphia to amend the AoC and instead came up with the Const.
An exact statement is not a red herring. While a response to a red herring could be a red herring mine is not. It isn't a herring of any color.
Well, your assertion that the phrase "we the people of the United States" is in the Preamble so we would know which people we're talking about, and not "Canada" or "Mexico" is a red herring given the fact that neither of those was a country in the 1780's. I don't think the British or Spanish governments, respectively, would be much for allowing their colonists to write their own constititutions and create their own governments without their approval. Words and phrases have meanings; the Founders didn't just shove a bunch of words onto a page for no reason. The plainly-stated and extant Tenth Amendment trumps any pseudo-legal mumbo-jumbo you can come up with. After a while you will have to admit, like WhiskeyPapa has, that there is no explicit ban on secession and the only way the Union was right was in its battlefield victory.
Stabilizing effect - long term interest. Six of one half dozen of the other. However, the fact remains that an election of Senators by the people of a state would still mean their concern was to the state. Having the legislatures do it doesn't change that but it does make the long term interests of the states and national more of a concern to a Senator and the longer term ensured that as well. Glad you mentioned treaties and SC appointments more indications that long term interest was the primary concern of the Senate. The House could easily have been allowed to do both or either but while having the same concerns about the members states as the Senators it did not have the longer term outlook given by the longer term of office.
Glad you agree with me. The Senate represents the states and is a bulwark against the fear of mobocracy. Hence, it is a stabilizing effect.
I will not argue that the Senate did have A role in protecting state interests just that that was not its primary role.
Well, you need to argue that point with Madison, Hamilton, et al. If there is an equal number of Senators per state regardless of population, and it is a stabilizing factor against the temporal whims of we the people, and Senators nominate judges for the Federal judiciary in their home states, the only logical conclusion is that the Senate represents the states.
William Flax Return Of The Gods Web Site
To wit: Senators are UNITED STATES Senators, they are to represent the long term interests of the United States not States...
If you offered this in a college essay or research paper you would be laughed out of class. United States senators represent their states and the people who elected them (read Madison's writings on dual sovereignty). If this were not the case senatorial elections would be held on a national level as opposed to a state level.
Further non-sense: The tenth amendment never meant anything other than states had the power to enact local laws, control local police power,etc. It in no way empowers a state to do ANYTHING which impacts the nation as a whole, such as secession. Secession negates the entire logic of the constitution and was not even acceptable to the Articles which repeatedly spoke of a perpetual Union.
First of all, the individual states had to divorce themselves (secede) from the Articles of Confederation before they could ratify the Constitution. Secondly, if you have ever read the Tenth Amendment you would know how laughable your above assertion truly is. Let me refresh your memory: 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. Ouch! Nothing there about this being only about enacting local laws (illogical when considering what a FEDERAL REPUBLIC is in the first place), nor is there anything about this regarding secession.
Very well put. Thank you...
Lack of something to quote is more like it.
House seats aren't elected on a national basis either. That is what "federalism" is all about.
House seats represent the citizens of the district from which they are elected.
States never "divorced themselves" from the NATION by changing the FORM of Government. Oh, I well know what the 10th says and WHY it was written and secession had NOTHING to do with it. Why don't you show me where that entered into the question since the CC records say not ONE word about secession.
First of all, any freshman history major would know that there were no "CC [Constitutional convention] records," the only primary source being personal journals kept by Madison primarily. Secession, like slavery, was an issue not dealt with for specific reasons. However, this does not equate with a ban on secession any more than it was a ban on the existence of slavery. Before debating me any further I would advise you to read Madison's writings in The Federalist Papers regarding the voluntary nature of the states entering into the compact known as the United States Constitution. Furthermore, the Tenth Amendment, along with the Second, are the two Constitutional bulwarks of our existence as a federal republic.
You don't seriously want to claim that the 9th or 10th really says "A state can destroy the Union whenever it wishes?"
Secession does not equate with destroying the Union or even the Constitution. The other states remain, the tenants of the Constitution remain, and the seceded state is left on its own to prosper or to fail.
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