Of the Tooth Fairy and the Supremacy Clause
Gary Marbut

Those who advocate unrestrained government power, especially federal power, often engage in fantasies, such as about the Tooth Fairy and also such as the illusion that the Supremacy Clause of the US Constitution assures supreme federal power in every instance.

In espousing their Tooth Fairy-like view of the Supremacy Clause, advocates of unending government power pretend to magically wish away two important features of the Constitution, the words of the Supremacy Clause “in pursuance thereof”, and the Tenth Amendment to the multiply-amended US Constitution.

The overplayed Supremacy Clause is found in the US Constitution at Article VI., Section. 2., and says “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.”

The essence is, "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land …" (emphasis added.)

The magical thinking mistake of the Tooth Fairy advocates is the failure to account for or admit the import of the words "in pursuance thereof". These words control the extent to which the Supremacy Clause applies ONLY to federal laws made with authority delegated by the states to Congress in the Constitution, specifically in the "enumerated powers."

What did our founders say about the limits of the Supremacy Clause?

Alexander Hamilton, at New York’s convention: “I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding” (emphasis added).

In Federalist #33, Hamilton added: “It will not, I presume, have escaped observation that [the Supremacy clause] expressly confines this supremacy to laws made pursuant to the Constitution….”

James Iredell, at the First North Carolina convention: “When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.”

Thus, by reading the Supremacy Clause as if the words "in pursuance thereof" had been removed, the Tooth Fairy types arrive at their magically-desired, albeit mistaken, conclusion that federal laws are supreme, always, without exception, and without question.

Further, it is important to note that the Supremacy Clause was amended.  Yes, it was amended by an amendment ratified by the states in December of 1791, which became the Tenth Amendment to the US Constitution.  As an amendment to the Constitution, the effect was to alter or change the underlying Constitution.  If those involved had not meant to change the Constitution, they would not have amended it.

It is important to note here an ancient principle of law and logic, that in the event of a conflict between two provisions in a co-equal body of law, the most recently-enacted must be given deference as the most recent expression of the enacting authority. (Leges posteriores priores contrarias abrogant.)  Without this principle, no law could be changed or repealed once enacted.

That is why the Tenth Amendment must be considered to have actually amended the underlying Constitution, contrary to the magical thinking of the Tooth Fairy crowd.

The language that actually amended the Supremacy Clause is:  “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.”

Non-magical thinking tells us that the overrated Supremacy Clause only makes federal laws supreme if they implement powers actively delegated to Congress by the states in the Constitution, and “in pursuance thereof.”  The Tenth Amendment amends the Supremacy Clause to clarify exactly that point, and must be given precedence in any potential or real conflict with the Supremacy Clause as the most recent expression of the enacting authority.

The magical thinking and arguments of the Tooth Fairy crowd deserve raspberries of disrespect for being so far from reality and for selectively pretending that important parts of the Constitution have somehow evaporated.  That magical thinking may be appropriate for fantasy fiction, but not for serious conversation about the Constitution and government power.