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Crackpot scheme would allow states to veto federal laws, but it will never fly

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Article VI, Section 1, Clause 2 of the U.S. Constitution — known among lawyer types as the Supremacy Clause — reads as follows:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Millions of Americans, especially many knee-jerk states’ rights advocates, have never heard of the Supremacy Clause. They think their own states should be free to pass just any old law, no matter if it violates federal law or the Constitution.

And then there are the wingnuts who are, in fact, aware of the Supremacy Clause but don’t like it. Some of these people are trying to cook up a Constitutional Convention that would seek to void the Supremacy Clause. In it’s place, there would be a provision that would allow two-thirds of the states to repeal any federal law they didn’t like.

I don’t think this hare-brained scheme will ever come to fruition. But it says HERE that incoming House Majority Leader Eric Cantor, the Virginia Republican, has an “open mind” on the matter.
 

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9 Comments

  1. Pat, not trying to stir the pot but how does the 10th amendment fit with this?

    I do see that the 10th amendment has been overlooked too much and the State’s right people are right to question if the Federal government truly has that power.

  2. Carl: Good question. And the answer is fairly simple.

    The Tenth Amendment reads as follows:

    “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.”

    When you take into consideration the words of the so-called Supremacy Clause, they take precedence over the Tenth Amendment.

    As noted in the body of this post, the Supremacy Clause says that federal law, as long as it comports with the Constitution, is “the supreme Law of the Land” and therefore binds the “Judges in every State” no matter what the “Constitution or Laws of any State” might say to the contrary.

    Take another look at the Tenth Amendment. It reserves to the states or the people “powers not delegated to the United States [in other words, the federal government] by the Constitution.”

    Well, obviously, the Constitution delegates “supreme” law-making power to the federal government — again, as long as those laws don’t violate some other provision in the Constitution. For example, since we now have a constitutional amendment guaranteeing women the right to vote, Congress can’t just pass a law that violates that amendment.

    Another thing to consider is that the Supremacy Clause, as part of the original Constitution, was written and ratified several years before the Tenth Amendment was passed.

    In short, the Tenth gives states powers that the rest of the Constitution hasn’t reserved for the federal government. In light of the Fourteenth Amendment, those powers reserved for the states aren’t as numerous as they once were.

  3. Pat I will agree with most of what you have said. Her is what I think your “crackpots” are up to. Is ObamaCare covered by the Supremacy clause? Is healthcare and taxing one for it a power of the federal government? It sure does open a can of worms when then considering Social Security and welfare as I don’t know how those programs fall.

    This link http://www.lewrockwell.com/orig3/attarian7.html tries to explain Social Security, but I would have to be a Constiutional Scholar to know for sure. It looks like even Social Security could be chalanged but of course there would be a lynch mob waiting for who ever actually brought such a case, since it is such a popular program.

  4. Carl: I think you have touched on the larger issue: the struggle to limit the federal government. I think people are trying everything they can to limit both the size and scope of government in general. With that comes a whole host of ideas that will be thrown up against a wall to see what sticks. There are a lot of people, myself included, that find government to be the problem, not the solution. Increasing freedom and liberty can only be done by limiting government. Unfortunately, that message often gets garbled because of ideas like this.

    Pat: Excellent presentation of the 10th Amendment and Supremacy Clause, and how the 14th Amendment has changed the face of the Constitution.

  5. DingDong

    Pat, you mean like marijuana laws and immigration laws? States and cities and seem to be making their own laws that contradict federal laws all the time. No complaints about that?

  6. David, I was looking at the larger issue, but things like Social Security and Healthcare get in the way.

    I agree that governement is the problem, but we have to many people who think it is the solution so we have these good intentioned programs popping up.

    I can support a system that provides healthcare to everyone, it is a good idea, but is a goverment plan the best? Can a charity based system work similar as it does currently for those who need it?

    What I see with most of these goverment programs is that people don’t feel bad about taking the government money but will feel bad about being a charity case. When actually they are just the same charity case either way, it is just how the program was funded.

    I often think I would give more to charity if the govenment got out of the charity business and let me give that money to charities of my choice.

  7. DingDong: Some states have legalized medical marijuana or otherwise decriminalized the stuff, but that doesn’t stop the feds from enforcing their own laws against pot. The state laws haven’t voided the federal laws. Under federal law, marijuana is still illegal everywhere. But state and local cops don’t enforce federal laws.

    As for immigration, most states don’t bother enforcing federal immigration laws. By the way, under federal law, illegal immigration is not a criminal offense. It’s a civil matter.

  8. DingDong

    Well then, why have Federal laws at all, if the states can cherry pick what laws they want to follow or enforce. It is the same as voiding the law when it is not followed or enforced. State judges are using medical marijuana laws for basis or rulings. Where is your supremacy clause, why don’t you stand up against this?

  9. a777pilot

    How, if a Federal law violates the same said Constitution, can it be supreme?

    No one part of the Constitution is or ought to be Superior over another. We either have one constitution or we have none. Pick.

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