Eric Holders response to the nullification legislation signed by Kansas governor Sam Brownback cites the supremacy clause in the constitution as authority on why the nullification of federal gun laws is a futile endeavor.
The open disdain and utter contempt shown in his letter is not unique to attorney general Holder. Most of the writings against nullification laws smugly cite the supremacy clause.
One can read between the lines in these writings and get the feeling that nullification is looked at in the same light as Don Quixote charging at windmills – A symbolic gesture which achieves nothing and makes you appear crazy.
As we shall see, nullification is not merely symbolic, but has real teeth to it and is not trumped by the supremacy clause.
When considering the supremacy clause, one must of necessity go back to the American Revolution.
The belief that the Founding Fathers would set up a system of government that is able to run roughshod over the will and rights of the states and individuals, would be to believe that those men were delusional and insane.
These same men, who met together and declared their independence from a tyrannical government which sought to control the lives of the colonists through arbitrary edicts and laws with the last line being,” we mutually pledge to each other our Lives, our Fortunes and our sacred Honor”. These same said men indeed did fight a war with some giving their lives and fortunes, as well as watching farmers and laborers, leave their fields and employ at a minutes notice to fight and die. – That these same men would then set up the same system of government that they had just fought to break free would be incredibly insane.
As a matter of fact, the first shots of the revolution came about as the British marched into Lexington and Concord to confiscate the weapons of those colonists. A “powder alarm” went out and those simple but brave souls stood fast against the best equipped, best trained army in the world. – Is it any wonder that the second amendment was written as it was?
I can still remember being in grade school and having to memorize and recite the preamble to the constitution. I remember saying the words and being in awe of the men who wrote, “…in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”
These words were the basis and reason for setting up a federal government and writing a constitution.
In the very first article when setting up this federal government, the framers gave 18 enumerated powers for that government.
To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the Supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.]]
These brilliant men were lawyers and scholars and wrote much. They would be familiar with the cannons of construction. In particular “expressio unius”. The entire Latin phase is “expressio unius est exclusio alterius” which translates as “The expression of one excludes all others”. If a document or instrument contains a list of what is covered, everything else is excluded. For the framers to list what the powers of the newly formed federal government are, they implicitly excluded any other power from that government.
These men, who recently fought to free themselves and their posterity from the tyrannical despot and any future ruler, set in motion a government of limited power.
To assure that there was no misunderstanding of the limited scope of the federal government, they added the tenth amendment: ”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.” The tenth amendment was added to the “bill of rights”. It is the RIGHT of the states and individuals to have control and dominion over all things except for those powers granted to the federal government in the enumerated powers.
In 1819, Chief Justice Marshall in the case McCulloch v. Maryland wrote: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted”.
In a more recent case, United States v. Lopez in 1997 held unconstitutional the “Gun Free School Zone Act” because it exceeded the power of Congress to “regulate commerce…among the several states”. Chief Justice William Rehnquist wrote, “We start with first principles. The Constitution creates a Federal Government of enumerated powers.”
That leads us then to ask, “What about the supremacy clause”
Let’s look at it: “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, anything in the constitution or laws of any state to the contrary notwithstanding.”
Does this mean, as attorney general Holder and others assert, that the federal government can make any law and the states and individuals are bound to it? Of course not! It says that the constitution, and the laws of the United States (laws made by the federal ) which shall be made in pursuance thereof (According to the constitution – the 18 enumerated powers) shall be supreme.
In reading the federalist papers, two sections of the essays that deal with the Supremacy Clause.
In Federalist No. 33, Alexander Hamilton argues that the Supremacy Clause is simply an assurance that the government’s powers can be properly executed, saying that a law itself implies supremacy, and without supremacy it would amount to nothing.
In Federalist No. 44, James Madison similarly defends the Supremacy Clause as vital to the functioning of the nation. He noted that state legislatures were invested with all powers not specifically defined in the constitution, but also said that having the federal government subservient to various state constitutions would be an inversion of the principles of government, concluding that if supremacy were not established “it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”
How brilliant were these men? They had to put the supremacy clause in the constitution! Can you imagine if each of the 13 states would have been able to make laws for the federal government on its duties and responsibilities?
Imagine what would happen if when forming the navy, Virginia made a law that all ships must only be built in Virginia, while Connecticut made a law that at least half the ships must be built in Connecticut. Which law would they follow? Or, consider that the government establishes a national park and one state makes a law that it must be open every day, except Sunday. Another state makes a law that every must have access to the park any day they wanted and it must be open 7 days a week. Another state makes a law that for the safety of everyone, the park must close every day at sundown, and still another state makes it illegal to ever close the park.
This is why Madison said it would be a monster with the head directed by the members. The federal government could not operate in this manner and chaos would soon ensue. The federal government would quickly shut down and states would be battling each other.
Every court decision involving the states verses the supremacy clause has held that the federal law was supreme in those laws that involved the enumerated powers of the federal government.
In In Edgar v. MITE Corp.(1982), the Supreme Court ruled: “A state statute is void to the extent that it actually conflicts with a valid Federal statute.” In effect, this means that a State law will be found to violate the supremacy clause when either of the following two conditions (or both) exists:
1. Compliance with both the Federal and State laws is impossible, or
2. “…state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress…”
In 1798, the Congress passed what are known collectively as the “Alien and Sedition Acts.” The Sedition Act made it illegal to publicly criticize the government or government officials. As an obvious restriction on free speech, in violation of the First Amendment. Recognizing The Alien and Sedition Acts as unconstitutional, Thomas Jefferson and James Madison urged Kentucky and Virginia to void the acts within their borders.
In Kentucky’s resolution, Jefferson wrote: “…That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy:”
In fact, Jefferson went on to write that a “silent acquiescence” to the unconstitutional Alien and Sedition acts was “highly criminal.” And the Kentucky legislature was duty-bound to act. The states today are no less duty-bound to act to restrain government from acting unconstitutionally.
As we can see, If the federal government stays true to its enumerated powers and leaves the states and individual to their duties, we would have a more perfect union. We would have established justice. We would have domestic tranquility. We would have a common defense. We would have general welfare. And very importantly, we would have the blessings of liberty to ourselves and our posterity.
Just as our founding fathers wanted