The Tenth Amendment Center: Supremacy Clause: Constitution 101

 

Supremacy Clause: Constitution 101 Most people get it completely backwards When people tell you that "federal law is ALWAYS supreme" - they're not just wrong, they get the Supremacy Clause of the Constitution almost completely backwards. Article VI, Paragraph 2 is one of the most twisted and abused parts of the Constitution. It reads: 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. Most people tend to completely ignore three essential words - the qualifier - “in Pursuance thereof.” As Mike Maharrey notes, The clause does not read, “This Constitution…and any old act Congress decides to pass…shall be the supreme law of the land.”  Despite that fact, almost everyone today treats it that way, including Cornell Law School, which tells us that the Supremacy Clause “establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.” This runs totally counter to what all the Federalists supporters of the Constitution told us about the clause. Even Alexander Hamilton, here in Federalist 33: “The clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION” [all caps in original] In the North Carolina Ratifying Convention, Willam Davie held the same view. He said that federal laws is supreme “only in cases consistent with the powers specially granted, and not in usurpations.”

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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

State of the Nullification Movement Report The history and constitutional basis for nullification. How it has been used - and how it's being used today. Our annual progress report Get it Here

If you consider this in relation to the foundational structure of the Constitution being one of delegated and reserved powers, things are even more clear. Writing in Federalist 45, James Madison explained that “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite” With only about 30 powers delegated to the federal government throughout the constitution - and everything else reserved to the states, the notion that federal law “is always supreme” gets things almost completely backwards. In most spheres of action, it’s actually “state law is always supreme,” and federal supremacy shouldn’t even be a question. That’s how John Taylor of Caroline summed it all up: “The United States have no authority, except that which is given by the constitution. Both the laws and treaties to be supreme must, therefore, be made in conformity with the powers bestowed, limited and reserved by the constitution, and by these we must determine whether a law or a treaty has been constitutionally made, before the question of its supremacy can occur.” If you prefer to read this article in your browser, you can find it here. Also, please do check out today's episode of the Path to Liberty Podcast for a deep dive into this essential history. There, you'll find both video and audio versions of the show - and if you prefer reading - there's a bunch of original source documents so you can read and learn more - in context - on your own time. This is the kind of information we work to get out to more and more people every single day of the year. Nothing - absolutely nothing - helps us roll up our sleeves and get the job done more than the financial faith and support of our members.  Please consider joining us today - for as little as $2/month here: https://tenthamendmentcenter.com/members/ Help us take a stand for the Constitution and liberty - whether the government wants us to, or not. (they don't) If you prefer a one-time donation, you can pitch in online at this link: https://tenthamendmentcenter.com/donate/

Tenth Amendment Center: The Real Constitution that Politicians Don't Want You to Know About

The Real Constitution the politicians don't want you to know about I’ve been told that law students prepping for the Bar Exam are told that if the Tenth Amendment is ever among the answers on a multiple-choice question, they can immediately rule it out. For the "experts," the Tenth Amendment is never the right answer. And politicians today - love it that way. Thomas Jefferson had a little different view of the Tenth Amendment. He called it the “foundation of the Constitution.” I consider the foundation of the Constitution as laid on this ground: That ‘all 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.’ To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” The Tenth Amendment makes it unquestioningly clear that the Constitution constrains the general government to very specific and very limited powers. As James Madison explained in Federalist #45, “The powers delegated to the federal government by the proposed Constitution are few and defined.” James Wilson told us that "every thing which is not given, is reserved." That’s the dirty little secret politicians don’t want you to know.

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John Jay - the first Chief Justice - described things this way: "The Constitution only serves to point out that part of the people's business, which they think proper by it to refer to the management of the persons therein designated" That's nowhere close to what how things operate in practice today - the largest government in history. Now – brace yourself. This might come as a shock. But the people in power are perfectly happy to operate with an undefined, boundless field of power. The founders referred to that as "arbitrary power" - one of the "injuries and usurpations" listed in the Declaration of Independence. And that’s why the Tenth Amendment is never the right answer according to the politicians, and the academics, judges, power brokers, lobbyists and talking heads that support them. Before the ink was even dry on the Constitution, the political class was already “interpreting” the document to expand its own powers. For example, by changing the meaning of the word "necessary" into merely "convenient" for federal power, Alexander Hamilton got his first national bank. And we're all paying the price for it too. Today, that federal government controls nearly every aspect of your life. It runs your healthcare, educates your children and monitors your every move. Bureaucrats in Washington D.C. even tell you how much water you can flush down your toilets. So much for powers “few and defined.” Sadly, most Americans accept this state of affairs. They even embrace it. In fact, most Americans actually believe that the federal government legitimately exercises all of this authority. After all, they’ve been taught all their lives that the Tenth Amendment is the wrong answer.

St. George Tucker: Our Original Originalist He wrote the first systematic commentary on the U.S. Constitution - and was one of the most influential jurists and legal scholars during the formative years of the United States. Article Here Get Tucker's Book Here

The nature of the American political system today exacerbates the expansion of power. “Democracy” gives everybody the false sense that they have some hand in exercising power – or that they will at least benefit from its expansion. This creates a dilemma, as political economist Bertrand de Jouvenel explained. Under the ‘ancient regime,’ society’s moving spirits, who had, as they knew, no chance of a share in Power, were quick to denounce its smallest encroachment. Now, on the other hand, when everyone is potentially a minister, no one is concerned to cut down an office to which he aspires one day himself, or to put sand in a machine which he means to use himself when his turn comes. Hence, it is that there is in the political circles of a modern society a wide complicity in the extension of Power.” A written constitution was meant to lay down rules that check the tendency for government to grow. It erects barriers to government power that must not be crossed. As Jefferson put it, “in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.” As John Hancock put it, "the powers reserved by the people render them secure" But like most things, a constitution won’t ever work if the people don’t know how to use it. While we do a significant amount of work to help reach and teach people about the original, legal meaning of the Constitution - based in principles from the Revolution - "how to use it" is probably our most important work. But for far too long politicians, bureaucrats, judges, law professors, and chattering pundits have told us how the Constitution should work - instead of the other way around. The political class has “interpreted” the rules. And it’s interpreted to give them more and more power over you and me. They teach us from day one that the way to keep the government in check is to convince the government to keep itself in check. Thomas Jefferson warned us how that would play out, noting that allowing the government to determine the extent of its own power would put the people of the several states "under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them" After generations of interpretation by the people in power - just like Jefferson warned, we now have a federal government that claims the authority to do virtually anything and everything. Along the way, our liberties have been whittled away. The power of the politicians grows at the expense of our liberties. If we want to reclaim our liberties, something has got to give. It’s time for dis-interpretation. It’s time for “we the people” to reclaim their own Constitution and their own liberty. To do that, we have look at the Constitution through the eyes of the generation who wrote and ratified it. We’re have to follow Jefferson’s admonition and “carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” And then we have to follow what the founders told us has to be done to keep the government in check when it refuses to follow the rules. Today, of course, that's 24/7/365 James Madison told us that states and individuals should use a "refusal to cooperate with officers of the Union." James Iredell - one of the first Supreme Court Justices - told us that the ONLY way to deal with usurpations of power is through "the inherent right of the people to prevent its exercise." Not just a mere good idea - but the only way to deal with federal overreach. And Jefferson said "where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy" Also, not just a mere suggestion to try after everything else fails - but THE rightful remedy to all undelegated power. This is the real Constitution that the politicians don’t want you to know about. The one where the people of the states themselves determine the limits of federal power. The one where the people of the states themselves enforce the constitution through non-compliance and resistance. The one where no one who violates their oath of office is given support.  As John Dickinson put it, when there's a "bad administration" (which we sure do have) - the answer is to be found "before the supreme sovereignty of the people." IT IS THEIR DUTY TO WATCH, AND THEIR RIGHT TO TAKE CARE, THAT THE CONSTITUTION BE PRESERVED; Or in the Roman phrase on perilous occasions—TO PROVIDE, THAT THE REPUBLIC RECEIVE NO DAMAGE. (yes, he used the all caps in the original!) In other words, in the American political system, as originally conceived, the Tenth Amendment is always the right answer. We've got a lot of work to do - but with your support, we're building a strong foundation for today and the future.  Brick by brick. Person by person. State by state: For the constitution and liberty. Thank you so much for reading and your support! --Michael Maharrey, Michael Boldin along with TJ, Alan, Mike and the  rest of the TAC Team.

 

Bernalillo County Sheriff Allen: Defy Governor Grisham Immediately!

Dear Sheriff Allen:

My name is Arthur Schaper, and I am a resident of the state of California. My communication with your office may seem strange, but I think my comments are essential.

The country is well-aware of New Mexico Governor Lujan Grisham's outrageous, unconstitutional order regarding concealed-carry and open-carry permits and self-defense actions in your county:

https://www.governor.state.nm.us/wp-content/uploads/2023/09/Executive-Order-2023-130-1.pdf

https://apnews.com/article/albuquerque-guns-governor-concealed-carry-fc5b4b79bf411b8022c3ad58975724d7

I should not be the first to tell you this, but she clearly does not have this authority. 

The Second Amendment of the United States Constitution could not be clearer:

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.

This amendment applies to all governments throughout the United States because of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I understand that you have made a preliminary statement in response to this unconstitutional order:

https://twitter.com/BCSONM/status/1700326536266875221

I urge you to make a clearer statement that your office will by no means recognize, comply, or enforce Gov. Lujan-Grisham's order.

This is an unconscionable power-grab with fraught implications for all American citizens. I urge you to show the state of New Mexico—and the country—your leadership on this issue and openly defy the governor, reminding her that she is a steward of the people, not their sovereign.

Thank you for time and attention to this matter.

Sincerely,

Arthur Schaper

How the US Senate Finally Handed President Trump a Major Victory

There are plenty of reasons to be furious with the Republican "led" Congress in Washington.

The biggest swamp creatures, including Mitch McConnell, John McCain and Jeff Flake, have stymied Trump--and our--agenda for the last ten months. They attack the President rather than working for Americans' best interests.

But one bright spot has emerged and the US Senate has given President Trump a major victory.

Jake Novak for CNBC reports:

President Donald Trump should give special thanks to two U.S. Senators this Thanksgiving weekend. One is still serving in the Senate, the other recently retired. One is a Republican. The other a Democrat.

Late last week, Grassley decided not to honor a Senate tradition of holding up hearings for judicial nominees who aren't cleared by their own home state senators. That tradition is known as the "blue slip courtesy" born out of time before nationwide communication technology when a given state's senators had access to much more information about nominees than their colleagues from the rest of the country. Grassley correctly noted that Democrats were now trying to use the blue slips tradition to replace the filibuster, and he's having none of that. 

So happy that Judiciary Chairman Grassley is putting the proper process ahead of the partisan bickering and bigotry of the Democratic minority. These antiquated measures were permitted for too long. The same goes for the time-honored filibuster tradition. It should only be used if US Senators actually get off their butts and talk a piece of legislation to death.

And that brings us to the Democrat who provided the initial generous source of President Trump's solid triumph: Former Senate Majority Leader, and Democrat, Harry Reid. Reid is a major reason this good fortune has befallen President Trump because Reid was the one who killed the filibuster rule for judicial nominees in 2013. And when he killed it, it was gone for good.

There were a few Democratic US Senator who slammed then-Majority Leader Harry Reid for killing the filibuster for federal district and circuit court nominees. The truth is, however, that the measure needed to go. During the Bush Administration, the Democratic minority (until 2007), went out of their to block qualified, well-vetted and well-informed nominees to the federal bench. The most notorious case was Miguel Estrada of California. US Senator Dianne Feinstein blasted the nomination because Estrada had no substantive scholarship or leadership to justify the appointment. The truth is that he was a well-qualified constitutional conservative, and the Democrats feared his incredible potential influence if confirmed.

Novak also points out that Reid's impatience worked even more for Republicans, since when they gained the majority in 2015, they stalled everyone of Obama's judicial nominees, and there was nothing the newly-imposed Democratic minority could do about it.

In fact, President Trump has twice as many vacancies to fill as President Obama faced in 2009. This is real winning. And there's more to this story:

But this isn't just about sheer numbers, it's about ideology too. While President Trump and conservatives have diverged in matters of policy several times over the past year, the judicial nomination process is decidedly not one of them. The nominees sent to the Senate from the White House are more conservative and even younger than what we saw during President George W. Bush's two terms in office.

Young conservative confirmations will ensure a long-lasting imprint on the federal judiciary and prepare a strong bench of candidates for the Supreme Court. In fact, one of the most important appointments has been Neil Gorsuch, cut from the same perfect ideological cloth as the late Antonin Scalia. The Democrats showed how out of touch and desperate they are by going after this nominee with all their political capital. They should have waited, since replacing one conservative with another would not have altered the balance of the court.

Instead, the plunged ahead and attacked Gorsuch with everything imaginable. They went so far as to throw up unprecedented assaults to this nominee, and thus gave the GOP majority the justification to kill the filibuster rules for all federal nominees.

More winning for the country!

Sure, the tax reform and Obamacare repeal bills may be jeopardized by internal spats between the GOP and the White House. But real history is being made in the courts all thanks to a bad bet made by Senator Reid and remarkable cooperation between the Trump team, Senator Grassley, and Republican Senate Majority Leader Mitch McConnell. While the fights with other senators like Flake et al may grab headlines, these judicial confirmations will have a much bigger impact.

Final Reflection

One key point in Novak's article is that the press is ignoring this unparalleled victory for the President and the Republicans. One other article, which I wrote about and shared with Townhall.com and Barbwire.com, featured that this country is going to be substantially more conservative for the next generation because of the rapid and rising number of judicial confirmations under the Trump administration.

Indeed, this is great news for taking back our country, for making America great again. We need judges who respect the Judeo-Christian ethic of our nation, men and women who honor the timeless values and traditions which make Western Civilization possible, and have made the United States the most prosperous, blessed nation on earth.

We should be glad for some substance of pro-Trump leadership in the US Senate, and this victory may explain in growing measure why Trump went along with supporting Luther Strange in the contentious Alabama US Senate special election primary earlier this year. Also, the US Senate, feeling the heat from the conservative grassroots across the country, are pressuring more members to get the President's agenda going forward. The US Senate's decision to repeal the onerous Obamacare individual mandate, for example, is a response from a rest conservative base and independent electorate which want the Swamp drained and the rights of American citizens retained.

The US Senate has made one key victory happen, but there need to be more victories very soon--which includes the final resignation of Majority "Leader" Mitch McConnell.

28th Amendment Proposal: Equal Application of Federal Laws

Please read 28th amendment Please Read, and forward. This will only take 1 minute to read! 28th Amendment, 35 States and Counting. It will take you less than a minute to read this. If you agree, please pass it on. It's an idea whose time has come to deal with this self-serving situation:

OUR PRESENT SITUATION! Children of Congress members do not have to pay back their college student loans. Staffers of Congress family members are also exempt from having to pay back student loans. Members of Congress can retire at full pay after only one term. Members of Congress have exempted themselves from many of the laws they have passed, under which ordinary citizens must live. For example, they are exempt from any fear of prosecution for sexual harassment. And as the latest example, they have exempted themselves from Healthcare Reform, in all of its aspects. We must not tolerate an elite class of such people, elected as public servants and then putting themselves above the law. I truly don't care if they are Democrat, Republican, Independent, or whatever. The self-serving must stop. Governors of 35 states have filed suit against the Federal Government for imposing unlawful burdens upon their states.It only takes 38 (of the 50) States to convene a Constitutional Convention. IF??? Each person that receives this will forward it on to 20 people, in three days most people in The United States of America will have the message. Proposed 28th Amendment to the United States Constitution: "Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the Citizens of the United States ..."