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Friday, April 22, 2011

Myth #2: Federal Law Supersedes State Law

This is the Second Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

The belief that all federal law supersedes all state law is derived from the Supremacy Clause found in Article VI, Clause 2. This clause is one of the most misunderstood and misapplied clauses of the U.S. Constitution. Not "all" federal law supersedes State law. We must remember that the federal government's legislative powers are limited to those laws that are authorized by the Constitution. Any federal law that is not within the authorities granted are unconstitutional laws, and therefore are laws that the States do not necessarily have to worry about.

To understand what I mean, we must understand the language used in Article VI, Clause 2, as well as understand the context of the time period.

Part of the problem began when John Marshall, the fourth Chief Justice of the United States (and the justice that also wrote an opinion seizing the power of Judicial Review for the courts - Marbury v. Madison, 1803) wrote that there is a priority of national claims over state claims in his opinion regarding McCulloch v. Maryland, 1805, which upheld an act of 1792 asserting for the United States a priority of its claims over those of the States against a debtor in bankruptcy. With subsequent opinions, Marshall, Joseph Story, and many courts since, have fostered the belief that the federal courts, and laws, have total supremacy over all state courts and laws. However, this concept contradicts the 10th Amendment, which specifically states that powers not delegated to the federal government, nor prohibited to the States, belong to the States.

If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a state, or city, passes a law that contradicts that constitutional federal law, the federal government’s law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.

An example of the federal government acting upon the assumption that all federal law is supreme over State law is the medical marijuana laws in California. Though I do not agree with the legalization of marijuana, even for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.

California passed a law legalizing marijuana for medicinal purposes, but federal law has marijuana as being illegal in all applications. Therefore, using the authority of the federal government based on the Supremacy Clause, federal agents (or at least until recently) have been raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government, therefore the raids on medical Marijuana labs in California are unconstitutional actions by the federal government.

The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.

"Contrary" is a key word in the Article VI, Section 2.

Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that state laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, in the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.

The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . in pursuance of what? Of the Constitution.

Therefore, not all federal law supersedes State law. The belief that all federal law supersedes State law is a myth.

-- Political Pistachio Conservative News and Commentary


Anonymous said...

Thank you for clarifying this fact as we in Montana sit here facing the federal gov - aka tyrants committing treason against it's citizens.
We have heard that each of the caregivers/growers who were raided here in Montana - will be indicted but that the court will not be allowed to hear why (they were operating legally under state law) they are even being indicted.

Jerry Morris said...

I am assuming that all amendments to the Cosntitution are also under the "Supremacy Clause". And that neither the Fed government nor the States can pass any law that is contrary to them, as interpreted by the text and language within each.

If I'm correct, we have a ton of laws on the books (Fed and State) that are unconstitutional.
Example: All restrictive gun laws (Fed and State) are in violation of the 2nd Amendment, in that there are NO qualifiers or exceptions in the language, regarding who can or can't "keep and bear arms", or what kind of arms the people can possess, or where they can carry them.

Douglas V. Gibbs said...

Jerry, The 2nd Amendment applies to the federal government, not the States. So, all federal gun laws are unconstitutional, State gun laws are not. State gun laws fall within the purview of the State Constitution, and the vote of the locals.

Anonymous said...

This would all be right if it wasn't for the commerce clause in the constitution. The federal government has a right to regulate guns, drugs or anything that is traded across borders including from state to state. So, unless the guns or drugs are manufactured and sold only in that state, the congress can regulate them constitutionally.

Douglas V. Gibbs said...

The Commerce Clause is an interesting animal. Anonymous, you have bought into the court's interpretation of the Commerce Clause, but not what was intended by the founders. In Madison's Notes on the Federal Convention you will find that the intent was for government to "regulate" only when there was a dispute between the States, meaning that the federal government was to act as a mediate, or referee, in such cases - not control or dictate the terms of all interstate commerce. Your error comes from your premise which is largely based on your definition of the word "regulate." Many Constitutionalists will state that "regulate" means: To Make Regular, which is essentially correct. But to become more specific, if you refer to the 1828 Webster's Dictionary, which is available Online, you will find during that era the definitions of the word slightly differed from today's meaning. Today, the word regulate immediately conjures up "control," and "restrict." Immediately, upon hearing the word "regulate," folks assume it is a term that means "full control," or "dictatorial mandate." In the 1828 Webster's Dictionary that definition is the last definition, or the least used. The first definition regarded weights, measures, and the like. When you decide how much sugar you put in your coffee you are regulating the amount you use. When you turn on the hose, whether you restrict the flow, or open the flow up full blast, you are regulating that flow. The second definition is the one that the founders were using in the Constitution. The definition reads: To put in good order. Commerce, from a historical perspective, was not flowing in good order, because of the disagreements between the States, largely over boundaries, and tariffs. The goal of the Commerce Clause was to put interstate commerce in good order by allowing the federal government the opportunity to mediate such disagreements. However, almost immediately the Statists decided the federal government should have full authority over anything that moves across State lines, and the myth that the federal government can dictate to the States all things regarding interstate commerce arose. So, your assertion that "The federal government has a right to regulate guns, drugs, or anything that is traded across borders including from state to state. So, unless the guns or drugs are manufactured and sold only in that state, the congress can regulate them constitutionally" is accurate in the sense of what is now believed to be the truth based on case law and the premise the governmental wolves wish you to believe, but it is hardly correct from the point of view of what was originally intended by the Founding Fathers.

Anonymous said...

Douglas V. Gibbs said...

"Jerry, The 2nd Amendment applies to the federal government, not the States. So, all federal gun laws are unconstitutional, State gun laws are not. State gun laws fall within the purview of the State Constitution, and the vote of the locals."

The second amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

As this amendment is a part of the constitution (and is at least issued in pursuance of that), the union states have no business of infringing its citizens right to bear arms.

Douglas V. Gibbs said...

The 2nd Amendment applies to the federal government, but since keeping and bearing arms is a fundamental right, then States should not infringe on that right, either. But that is what your State Constitution is for. That is also why we are supposed to be involved. In both cases, a piece of paper with ink on it does not secure our rights. . . we do!

Anonymous said...

Douglas, in a way, the states have no say so in the long run on the right to bear arms? As it conflicts with the federal sections?

Douglas V. Gibbs said...

a State law being contrary to a federal law is not unconstitutional if the federal law was unconstitutional in the first place. . . hence the words "pursuant thereof" in Article VI.