Continuing that same debate, future Supreme Court Justice James Iredell agreed: “Then when the Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress under pretence of executing one power, should in fact usurp another, they will violate the Constitution.” North Carolina Gov. Samuel Johnston emphasized these same points - that only those acts made “in pursuance” of the Constitution would be supreme - everything else would fail to rise to the level of “law.” “Every law consistent with the Constitution, will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it, cannot have been made in pursuance of its powers. The latter will be nugatory and void.” Usurpation. Nugatory. Void. These are strong statements - a perspective almost totally forgotten today. An act of usurpation was, to the founders, essentially, an act of theft by government, stealing power from the sovereign people of the several states. And when power is stolen, it’s not valid law - it’s nugatory. Or void. St. George Tucker described the supremacy clause with this perspective in mind: “That a law limited to such objects as may be authorized by the constitution, would, under the true construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void.” But acts of usurpation - while void according to the constitution - don’t become void in practice and effect by merely saying so. And even Alexander Hamilton recognized that the people would have to step up to get that result. “But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.” With this understanding, most people miss the two primary purposes the Supremacy Clause: - To ensure the supremacy of the constitution - not anything the feds do
- To draw a line around the limits of federal power
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