Of the Tooth Fairy and the Supremacy
Clause
by
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.
End