As the federal government continues to grow and expand its powers many states are attempting to push back and define the line between state authority and federal authority. Legislation has been proposed in a number of states that would limit and define federal authority in areas from gun rights to repealing Obamacare. In Utah we have our own bill that will restrict the federal governments ability to regulate fire arms within our state.

Whenever these questions come up about “State Rights”, “The 10th Amendment”, and “State Sovereignty” the opposition is always quick to point out the Supremacy Clause as the ultimate overriding power. A recent comment from a constitutional law professor from the University of Denver illustrates this point well.

“The [state] legislature can pass anything it wants,” Kamin said. “The Supremacy Clause of the Constitution makes that clearly unconstitutional. Where there’s a conflict between state and federal law, the federal government is supreme.”

Apparently, under this logic, the Supremacy Clause grants the Federal Government power to do whatever it wants, and if anything conflicts with a state law the federal law reigns supreme. I don’t believe that is what the supremacy clause says at all, let’s take a closer look.

Article 6 Clause 2 – US Constitution
“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.”

Note the key words, in Pursuance thereof.

What the supremacy clause does not say:
“This Constitution, and any law of the United States passed by the infinite and all seeing wisdom of congress and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”

In the words of James Madison:
“I, sir, have always conceived – I believe those who proposed the Constitution conceived – it is still more fully known, and more material to observe, that those who ratified the Constitution conceived – that this is not an indefinite government, deriving its powers from the general terms prefixed to the specific powers –but a limited government, tied down to the specified powers, which explain and define the general terms.” ~James Madison

The only laws that are supreme are the laws passed by Congress in pursuance of the defined enumerated powers spelled out in the constitution. By definition all other laws are not supreme and are subject to scrutiny by the courts and the several independent states.

If it was true that the Supremacy Clause is basically a blank check giving Congress carte blanche over law making capacity, then it would be “constitutional” for them to pass any law which would then be the supreme law of the land. The Congress could be as fickle as it pleases. One day say we don’t like blondes and pass a law that condemns them to solitary confinement. Or we don’t like people who drive with their music up too loud and pass a law that confiscates their vehicles, in either case they would be supreme.

Such laws would be absurd and against all reason. But that is in essence what the Supremacy Clause supporters are saying. Furthermore, if congress had the power to pass any law it chose to, and by default those laws were the supreme law of the land, what would be the purpose for the rest of the Constitution, or for the States?

Hopefully we all learned in school about the separation of powers the Framers built into the constitution. Three branches of government (legislative, executive and judicial) with separate powers to provide a balance so that all power would never be consolidated into one governing branch. This balance is often referred to as a horizontal separation of powers. What we tend to forget and is often left out of the discussion is the vertical separation of powers between the federal government, the states and the people, which is also needed to provide a check and balance against consolidation of power. The concept of the vertical separation of powers is embodied in the Ninth and Tenth Amendments.

In the recent supreme court ruling on the Affordable Care Act Justice Roberts stated the following:

“It is the Constitution that is the Supreme law of the land, not the Justices of the Supreme Court, and all decisions, even ones made by the court must stand before the ultimate judge – the rule of law in the Constitution. The Constitution was written and ratified by “an act of the whole American People” as Thomas Jefferson declared in 1802. Its purpose is to “secure the blessings of Liberty…to our posterity”. To secure that Liberty, “governments were instituted among men”, not over them, and “derive their just powers from the consent of the governed.” Our founders gave us a government dependent upon OUR consent, not the will of the Supreme Court. They knew that since Liberty belonged to us, we would be the only ones suited to determine when “any form of government became destructive to those ends.”

“the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty.”

“In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own. Massachusetts v. Mellon, 262 U. S. 447, 482 (1923). The States are separate and independent sovereigns. Sometimes they have to act like it.” -Justice Roberts.

It’s time we took Justice Roberts seriously and started acting like States, separate and independent sovereigns.

In Federalist 21 Alexander Hamilton said “that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States (through the Constitution) in Congress assembled.”

The founding generation understood this concept well and it was clear through the ratification debates that they interpreted the Supremacy Clause to have the constraint placed upon it of the Constitution and the limited, enumerated powers contained there in.

As a people we need to return to the fundamental principles of limited government and individual liberty as espoused in Article 1 Section 27 of the Utah State Constitution.

“Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”