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Friday, October 31, 2014

Democrats and Republicans Alike Get the Supremacy Clause Wrong

tenthamendmentby Matthew Sickmeier

When the issue of federal power over states’ rights come into the forefront, Democrats are quick to cite the supremacy clause as beyond debate.  Yet, Republicans often use the same talking points.  When GOP policies need that extra “federal muscle,” Republicans imitate their political opponents and claim federal law as supreme without question.

Case in point, Rep.Trey Gowdy (R-S.C.) and Rep. Andy Harris (R-MD) are making the case that a legalization initiativeover marijuana in D.C would be trumped by Federal power if passed by voters. 

“I’m kind of naive, I guess. I thought federal law trumped state and local law. I thought that’s why we had a supremacy clause,” Gowdy, a former federal prosecutor, told The Hill on Friday.

While Congress has special jurisdiction over the District of Columbia, the problem is the general statement from Gowdy that federal law, by its existence, simply trumps all state and local law.

These defenders look to the supremacy clause as their four aces, but omit the text  itself.  “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…” (emphasis added)

Simply put, laws are only supreme if such power is delegated to the Federal Government in the Constitution.  Anything not expressly delegated is left to the States and the people thereof vis–à–vis the 10th Amendment.  As Hamilton wrote in Federalist #33 “It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution….”

If a federal law is “not in pursuance” of the Constitution, it’s therefore null and void.  Game, set, match …how’s that for four aces?


Matthew Sickmeier

Matthew Sickmeier is a Tenth Amendment volunteer blogger.He writes and contributes from Georgia.

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