Supremacy Clause of the U.S. Constitution vs. the Tenth Amendment

There are a lot of posts on ATS written by people who invoke the Tenth Amendment to the U.S. Constitution and condemn the Federal government for usurping powers that belong only to the states. Such people are often called "tenthers" because of their special preoccupation with that particular aspect of the document. The tenth amendment states:

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.

Wiki: Tenth Amendment

Wiki goes on to state:

History and case law

The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."[1] After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers "expressly" delegated, which would have denied implied powers.[2] However, the word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not amend the Necessary and Proper Clause.

The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is generally recognized to be a truism. In United States v. Sprague (1931) the Supreme Court noted that the amendment "added nothing to the [Constitution] as originally ratified."

States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby, 312 U.S. 100, 124 (1941), reads as follows:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.....

The "necessary and proper clause," which was not amended by the tenth amendment, is as follows:

Necessary and Proper Clause

Interpretation of the Necessary and Proper Clause has been controversial, especially during the early years of the republic. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. Loose constructionists, on the other hand, interpret the Necessary and Proper Clause as expanding the authority of Congress to all areas tangentially-related to one of its enumerated powers. It is often known as the "elastic clause" because of the great amount of leeway in interpretation it allows; depending on the interpretation, it can be "stretched" to expand the powers of Congress, or allowed to "contract," limiting Congress.

In practical usage, the clause has been paired with the Commerce Clause in particular to provide the constitutional basis for a wide variety of federal laws.[4]

Wiki: Enumerated Powers and Necessary & Proper Clause

What those who are primarily preoccupied with the Tenth Amendment often ignore is the Supremacy Clause -- Article 6, clause 2 of the original Constitution.

Again, an excerpt from Wiki:

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.

Wiki: Supremacy Clause

The entry goes on to state:

Supreme Court and lower Federal Court interpretations of the Supremacy Clause

One of the earliest examples of the Supreme Court's ruling that a State law violated the Federal Constitution under its Supremacy Clause came in the landmark legal case of McCulloch v. Maryland, 17 U.S. 316 (1819). In this case, the Supreme Court ruled that the State of Maryland could not place taxes on the Second Bank of the United States. This ruling established the principle that the states could not tax the Federal Government in any regard and to any amount.

The Supremacy Clause has been interpreted to come in effect only when the Federal Government has acted in a given field.

The interpretation and application of the supremacy clause becomes especially relevant now in light of the fed's challenging of Arizona's recent immigration law.

As a gross generalization, I would say that the conflict over the powers delegated to the federal government vs. state governments tends to break down into two camps: the strict and the loose constructionists.

I am not a Constitutional scholar but I believe the supremacy clause deserves a discussion with my worthy friends and respected foes on these boards.






[edit on 3-8-2010 by Sestias]

I would be interested in knowing just how many total times the states have sued the feds in the last 25 years under the tenth amendment.

I just get this impression that the politicians in Washington and the ones in each state have close relationships. They hang around the same people, breathe the same air, and party at the taxpayer's expense.

IMO, states have not defended their rights. Maybe they are afraid of losing federal funding, share Washington's belief, or just don't care.

Be interesting to see how this thread plays out.

If you are talking about Arizona, then they are not saying that they can trump federal law. They are saying that passing a law and then not enforcing or supporting it essentially means that the law does not exist.

Also, technically Arizona wouldn't be protecting the border, but instead detaining those that have already crossed into their state.

My personal opinion is that its about time that a state stood up for its rights, even if it is for a controversial issue.

There are two views of the constitution. I will call one "the old fashioned view" and the other "the modern view." The old fashioned view was in vogue before the New Deal. The old fashioned view of the Constitution is that the Constitution called for strict separation of powers within the federal government. The federal government's power under the commerce clause was relatively limited.

The modern view came into vogue at the time of the New Deal and was adopted by the Supreme court. Under the new view, the federal government's power was expansive and virtually limitless. The separation of powers is often blurred with the executive branch often acting as both a legislator and adjudicator.

Whether you subscribe to one view or another is a matter of philosophy. Originalists tend to favor the old fashioned view. They see laws like the constitution as set in stone and never changing. Other people see laws like the constitution as "living documents" that can and must change with the times to be viable. These people tend to favor the modern view.

The Kentucky Resolution, drafted November 16, 1798

That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people," therefore the act of Congress, passed on the 14th day of July, 1798, and intituled "An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States," as also the act passed by them on the -- day of June, 1798, intituled "An Act to punish frauds committed on the bank of the United States," (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

The Virgina Resolution, Drafted December 24, 1798

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thererto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, "the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States," and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.

SOUTH CAROLINA ORDINANCE OF NULLIFICATION Drafted November 24, 1832

We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, andnow having actual operation and effect within the United States, and, more especially, an act entitled “An act in alteration of the several acts imposing duties on imports,” approved on the nineteenth day of May, one thousand eight hundred and twenty-eight and also an act entitled “An act to alter and amend the several acts imposing duties on imports,” approved on the fourteenth day of July, one thousand eight hundred and thirty-two, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by saidacts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.

and on and on and on.....


Sorry communists, but the Federal Government does not have the legitimate final say in matters of constitutional law.

The states created the criminal federal government, and what they create, they can destroy.

Oh yeah, lets not forget that nullification was used by the northern states to reject the fugitive slave laws.

Here Wisconsin rejects the law, nullifying the criminal federal government mandate that slaves must be returned to their owners across state lines.

If Wisconsin had obeyed the criminal federal government, untold numbers of slaves would have been killed or beaten.


UNCONSTITUTIONALITY
OF THE
FUGITIVE SLAVE ACT.

of the prisoner is sought to be justified, by whatsoever authority the same may have been issued.

If, upon enquiry into the nature and cause of the caption and detention of the prisoner, it shall be found that he is held by virtue of process issued by a court or judge of the United States, having exclusive jurisdiction of the subject matter of the process, the prisoner must be remanded, and this as well by the comity of courts as by the provisions of the statute.

The warrant set forth in the return to this writ of certiorari, is not sufficient to justify the detention of the prisoner.

The order of discharge set forth in the return to this writ of certiorari was properly made.

The act of Congress of 1850, commonly called the Fugitive Slave Act, is unconstitutional and void.

1. Because it does not provide for a trial by jury of the fact that the alleged fugitive owes service to the claimant by the laws of another State, and of his escape therefrom.
2. It authorizes a hearing and determination of the claim of the master, and the fact of escape, by commissioners of the United States, who cannot be endowed with judicial powers under the Constitution of the United States.
3. The judicial power of the United States can be vested only in courts, or in judges, whose term of office is during good behaviour, and whose compensation is fixed and certain.
4. The functions with which United States commissioners are endowed by the act of 1850 are judicial, and therefore repugnant to the Constitution.
5. By the said act, any person alleged to be a fugitive may be arrested and deprived of his liberty "without due process of law." Crawford, J., dissenting.

The act of Congress of 1850, commonly called the Fugitive Slave Act, in relation to fugitives from service or labor, is unconstitutional and void; because Congress has no constitutional power to legislate upon that subject. Per Smith, J.

Only an idiot would believe the criminal federal government has total authority to decide matters of constitutional law.

It makes me angry that anyone would even suggest such heresy.

Here's a linkable post to this:
fascistsoup.com...

Spread it around the web liberally as an antidote to communist indoctrination.


[edit on 4-8-2010 by mnemeth1]

Sorry, but I can't resist.

*whiny voice*

Oh, did I take that big bad race card away from you?

Why yes I did.

*/whiny voice*

reply to post by mnemeth1


Well the first Chief Justice of the Supreme Court, John Marshall, a man who was at the Constitution must be an idiot. In his Marbury v. Madison opinion he wrote it is the role of the Supreme Court of the United States "to say what the law is."

Individual states are bound by the Constitution. They are not free to go about interpreting the Constitution as they see fit. Alabama cannot read the 14th Amendment as giving it the authority to arrest Black people for voting. New Jersey cannot thumb its nose at the Supremacy clause and allow industries to violate federal environmental laws.

reply to post by hotpinkurinalmint


Of course, the quote you extract from Marbury v Madison, which was, in fact, a ruling where The SCOTUS found the implied power of judicial review, is taken out of context. Obviously, The Supreme Court has not ruled on every single act of legislation that Congress has passed. Since they have not ruled on every single act of legislation passed by Congress, somebody has to be able to interpret those laws.

Further, The Supreme Court derives its powers from the same delegated authority that Congress and The President derive their powers, and that power was delegated to them, not surrendered to them.

Now, the resssst of the story.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

MANY, scotus decisions have used the Dec of Ind as their reference to decide their positions. Therefore, the Dec of Ind can be used as reference for precedent (something I do not like to do). But, there are two documents that define our laws.

If at anytime legislation abrogates or derogates our authority of supreme law, the individual, the supremacy clause becomes null and void.

HEAR THAT? Null and void.

As others have said, I will not give up my liberty for the ILLUSION of security!

To do NO harm or infringe on another's rights of Life, Liberty or Property. PERIOD.

Supremacy clause be damned!

Originally posted by hotpinkurinalmint
reply to post by mnemeth1

 

Well the first Chief Justice of the Supreme Court, John Marshall, a man who was at the Constitution must be an idiot. In his Marbury v. Madison opinion he wrote it is the role of the Supreme Court of the United States "to say what the law is."

Individual states are bound by the Constitution. They are not free to go about interpreting the Constitution as they see fit. Alabama cannot read the 14th Amendment as giving it the authority to arrest Black people for voting. New Jersey cannot thumb its nose at the Supremacy clause and allow industries to violate federal environmental laws.

John Marshall was a federal employee.

What did you think he was going to say?

Oh golly gee, I think the states should have more power?

Of course he's going to say the federal government has total authority over everything. That's the entire point of the freaking Virginia and Kentucky Resolutions! - They say dillweed is wrong!

reply to post by endisnighe


hmmm...

I think I heard the phrase "null and void" in those articles I quoted.

The criminal federal government has usurped the states power.

I would go even farther and say the states have usurped the county and city governments power, violating their own state constitutions.

Before the so called "Supremacy Clause", which in reality is Article VI Clause 2, There is the Preamble to that Constitution which reads:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The importance of the Preamble is that it explains clearly what the purpose of the federal government is: To establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and most importantly to secure the Blessings of Liberty to We the People of The United States of America.

To secure the Blessings of Liberty...

To Secure the Blessings of Liberty...

Regulating commerce, then should fall under the mandate establishing Justice, ensuring domestic Tranquility, providing for the common defense, promoting the general Welfare, and most importantly securing the Blessings of Liberty.

The point of Article VI, Clause 2 known as the Supremacy Clause, is to assert the Constitution for the The United States of America as being The Supreme Law of the Land. Congress is just one branch of government within that Constitutional framework, and The Supremacy Clause did not give Congress Supremacy over the states. It gave that legislation passed by congress, and signed into law by The President of The United States of America, which is harmonious with the Constitution Supremacy, meaning all legislation that is Constitutional is a part of the Supreme Law of the Land.

It does not mean that Congress can just whimsically pass whatever law they damn well please because they have Supremacy over the states.

The suggestion that the 10th Amendment did not Amend the Supremacy Clause is a misunderstanding of what The Bill of Rights mean. The Bill of Rights are clear and express limitations placed upon the federal government. This is why the First Amendment begins with:

Congress shall make no laws...

It is why the Second Amendment ends with:

...Shall not be infringed.

It is why the Third Amendment reads:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

It is why the Fourth Amendment states:

...shall not be violated, and no Warrants shall issue...

It is why the Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is why the Sixth Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Why the Seventh Amendment reads:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Why the Eighth Amendment reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Why the Ninth Amendment reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Each of these Amendments leading up to the 10th Amendment make expressly clear what the federal government cannot do. Thus, when the 10th Amendment reads:

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.

There is implicit authority reserved to the States respectively, or to the people. Further, what is made expressly clear is that whatever powers the federal government does have, have been delegated to those branches by the States, and the people, and are those delegated powers that exist expressly, or implicitly by Constitution. The Supremacy Clause can no more cancel out the 10th Amendment than the 10th Amendment can cancel out the Supremacy Clause.

There is a proclivity to focus on the word shall within the Supremacy Clause, and indeed, the rules of statutory construction demand that each and every word be given significance. Shall, of course, means there is a compulsion to do so. However, since since each and every word shall be given significance, it is important to look at Article VI, Clause two in its entirety:

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.

Under the Authority of The United States. This is as important to understand as the word shall is. If Congress does not have the Authority to pass a certain act of legislation, it doesn't matter if The President signs it into "law", nor even if The Supreme Court upholds it as "law". If the authority was not either expressly granted, or implicitly granted, then that authority does not exist. This is why the 9th and 10th Amendments are so damn important.

I am going a quote from a policeman I read here on ATS
Your Rights End
When You Violate Mine!

reply to post by Jean Paul Zodeaux


HEY, JPZ, want to see something AWESOME?

Check this video out, a constituent SCHOOLING a tyrant on LAW.

PETE STARK: - The Federal Government can do most anything in this country -

To add my own postulate on slavery-Legal Slavery, right here in the United States of Hypocricy!

I would LIKE to add, the citizenry are going to make a difference, one way or the other.

reply to post by Gmoneycricket


That is an excellent supposition to the entire Constitution.

Rights are like a bubble that surround you.

Once your rights, encroach on another's, that is the DEFINING boundaries of your rights.

Do not harm another, and do not infringe on their ABSOLUTE rights of Life, Liberty or Property.

I hope you gave that LEO a star. Peace my fellow seeker of Freedom

reply to post by endisnighe


I saw this video. It is a video that underscores the astounding arrogance of legislatures today. It also gives me an opportunity to quote one of my favorite authors; Frederic Bastiat:

When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm. They violate neither his personality, his liberty, nor his property. They only guard the personality, the liberty, the property of others. They hold themselves on the defensive; they defend the equal right of all. They fulfill a mission whose harmlessness is evident, whose utility is palpable, and whose legitimacy is not to be disputed. This is so true that, as a friend of mine once remarked to me, to say that the aim of the law is to cause justice to reign, is to use an expression which is not rigorously exact. It ought to be said, the aim of the law is to prevent injustice from reigning. In fact, it is not justice which has an existence of its own, it is injustice. The one results from the absence of the other.

Hopefully that full paragraph survived the new changes made with quoting external links, but here is the link to one of the most important documents ever written regarding the law, in my humble opinion:

mises.org...

Constitution is embraced by differing factions with their own interpretation. Deciding is the Supreme Court which wavers on the political edge of their protectorate.
All branches of the US Government has been corrupted. Right?
Even the elders of the country see that and they don't read ATS.

Interpretation is key to all and the House of Congress and The Senate of the United States all know well about interpretation. Being Lawyers they navigate these rocky waters with ease and you may say they are deceiving to us, but in fact they are being descriptively and deceptively correct.

I am sorry to say that the middle class and those , even college educated, are left out of the system. Graduates soon learn to be corrupt or select a personally satisfying job outside of their degree.

We the middle class are not surprised about what is happening now. We have been screwed, kissed and then kicked off of our property.

They aren't worried about jobs .. That just sustains the middle class. They can continue to print money long after the unemployment rate exceeds 50% if the Eu Nations continue to buy dollars and the BS it entails.

Supremacy now days is , have ammo for your guns. If you dont have guns get em and ammo. If you cant learn to carve your weapons for survival.

The historicaly long suffering "middle class" of America will not go down without a bloddy fight. Each year of their lives the Feds have taken more and more. Do you really think that this backbone of America will rot to dust in the face of shills in the government?

reply to post by Jean Paul Zodeaux


Thanks for the link. Will read the entire component when I get a chance.

I have always believed in the non initiation of force. I was raised Catholic, kinda switched to non denominational Christian in my beliefs. Do unto others, so to speak. Never knew much about law, except for my beliefs that to force anything upon another is wrong. Even if it is your own beliefs, maybe that is what I learned from my spirituality.

I know the one thing that I have a hard time following is the turn the other cheek component. I have a REALLY hard time with that one. Maybe a little more reading of the bible. Or, maybe I cannot set aside that belief. I may have to spend a little more time in my purgatory. Oh well.

Anyway, in regards to the thread, I will not force my beliefs upon another, therefore, for those to try and force me to their belief, is the basic tenent of the Declaration of Independence and the Constitution.

Therefore, this whole argument of Supremacy reminds me of this video-



I am and never have been a subject, I am sovereign (The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State) so if the Federal Government is acting outside the constraints of the Constitution, they are acting as a foreign power.

Hence, they are acting in a declaration of war against the SOVEREIGN power of the individual.

A little extreme but an EXCELLENT argument.

[edit on 8/4/2010 by endisnighe]

What the OP fails to understand and the feds now ignore is the supremacy clause only applies to the jurisdiction of the Federal government and not to the states or the people. So when it says supreme law of the land the only land the Feds have jurisdiction over is the Ten miles square of DC and not the several states!

The supreme court has no authority to rule in state matters period only federal matters therefore the ruling is null and void and without merit. Nowhere in the constitution do the states give up sovereignty and the 9th and 10th amendments were reminders of that, not trying to take back something lost!

The constitution is the law the federal government must live by it does not apply to the people or the several states it only applies to the Feds. Therefore it operates now days almost exclusively outside the law that governs it, encroaching on all areas it is forbidden to by its law the constitution.

[edit on 4-8-2010 by hawkiye]