With all the talk about States legalizing pot and the federal government still having laws against it, the Supremacy Clause is at the center of the conversation. I had never had a second thought about it because when I wrote my book I defined the Bill of Rights and had only looked at its relationship with the Constitution.
BUT! Having written about the Bill of Rights gave me a really good understanding of the underlying reasons our Forefathers wrote the Constitution and Bill of Rights the way they did.
Having said that, with all the pot talk and Attorney General Jeff Sessions attitude towards it, I couldn’t get one thought out of my head.
Why would our Forefathers create a Constitution, with the clear intent of limiting the power and authority of the central (federal) government, include a clause that would give that federal government supreme authority in the United States? That just doesn’t sound right.
In my opinion, they did not intend to undermine the very foundation of the Constitution with such a clause. More specifically it is a paragraph in the Constitution also known as Article VI Clause II, (paragraph 2).
“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.”
The modern interpretation of that paragraph is called the “Supremacy Clause” Those who interpret the clause depend on this group of words as proof, the entire paragraph is enough to convince them of Federal Supremacy. The groups of words state:
“and the Laws of the United States which shall be made in Pursuance thereof,” ,,,,,,,,,,,,, “shall be the supreme Law of the Land,”,,,,,,,,,,, “and the Judges in every State shall be bound thereby.”
When discussing any interpretation of the Constitution, it is extremely important to always remember what our Forefathers were intending to do when they created the Constitution. I call it the Prime Directive.
Above all things our Forefathers wanted to limit the authority of the federal government.
We know that because of the 10th amendment, which states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people,”
Simply stated, Congress may not pass a law that it is not given specific authority in the Constitution. If that’s the case, and it is, how does that square with the so called “supremacy clause?”
It’s simple, the so-called supremacy clause states:
“Laws of the United States which shall be made in Pursuance thereof,”
And those laws, “which shall be made, in Persuance” must be Constitutional laws, not just any law about any subject.
Because of the 10th amendment we know Congress (United States) may not assume any “powers not delegated to the United States by the CONSTITUTION.”
Congress can only pass laws that Congress is allowed pertaining subjects authorized by the Constitution. This limits Congress’s ability to pass laws, especially those that “are reserved for the States or to the People.”
Conversely the States may not pass any laws whose authority is reserved to the federal government.
Finding the authority reserved for the federal government may surprise you because our Forefathers gave very little authority to the Federal Government in the Constitution. Surprize Surprize!
BUT, If the modern interpretation is what our Forefathers had intended, then Congress could do anything it pleased either through laws and/or treaties. This is counter to the intention of the Forefathers.
Our Forefathers certainly didn’t intend to give Congress a blank check in passing any laws on any subject it pleased. They wanted to limit the authority of the Congress, (central/federal government/United States).
To reinforce what they meant, they also said so in the Preamble to the Bill of Rights. Clause one of The Preamble of The Bill of Rights states:
“The Conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire, in order to prevent the misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
Sounds clear enough for me. They wanted to limit the federal government’s authority and they wanted “that further declaratory and RESTRICTIVE clauses should be added.” That’s why the Bill of Rights exists.
They certainly would not have thrown it all away with the so called “Supremacy Clause.” So the so-called supremacy clause isn’t so supreme after all, but it does have meaning once a qualifying law is passed.
What our forefathers didn’t see coming was the number of laws passed that are in fact unconstitutional and that really screws things up. Case in point the Federal governments law against Pot. It’s unconstitutional.
Where, in the Constitution, does it give the federal government the authority to ban pots use? It doesn’t. Therefore, any federal law that bans the use of pot is unconstitutional and enforcing an unconstitutional law, with Article VI Paragraph II of the Constitution, is just as unconstitutional.
The authority to legalize of Pot belongs to the States and every law passed by Congress should also show where in the Constitution Congress was granted the authority for the law. It should be verified and part of the Bill before the President signs it.
Yes, there is a Constitutional litmus test that every Federal Law must pass.