In an op-ed published in The Daily Caller on February 23, Gregg Re repeats the all-too-common understanding that the overrated Supremacy Clause of the U.S. Constitution makes the federal government supreme in virtually anything it wishes to do. That Gregg would hold such an opinion is no big surprise. It’s what he and most everyone else were taught in high school. Fortunately, I have learned since high school that this view of the Supremacy Clause is not only wrong; it is dangerous to people and to individual liberty.
Let’s begin here: It is perhaps the most basic premise of our American system of political philosophy that all political power is vested in and derived from individual people. We surrender some of our personal political power to government so that it can do things for us in common that we could not do as well individually. The most critical word here is “some.” We do not surrender all of our personal political power to government, for that would render us slaves.
The same model was used when the 13 original colonies (now “states”) surrendered some of their collected political power to create the confederated entity known as the United States of America — states united for a common purpose. In that event, the states surrendered a portion of their derived-from-individuals political power to their newly created servant, the federal government, for the same reason and with the same caution that individuals surrender power. It was a limited grant of power.
Wisely, this limited grant of power to the new servant was clearly documented in a writing called the Constitution, a set of written terms that cannot be changed except by the grantors, the states, and except by methods also specified in writing.
Those powers affirmatively granted to the newly created servant were “few and defined,” and specified in the Constitution almost entirely in its beginning, specifically Article I, Section 8, the “enumerated powers.” There was another provision included, necessary to correct a weakness in the prior Articles of Confederation, that clarifies that when a law enacted by Congress is properly implementing one of the powers ceded to the federal government among the “enumerated powers,” and if there should be a state law in conflict with the federal law, then the federal law will be superior — the “Supremacy Clause.”
So, the Supremacy Clause only applies to federal laws well-founded in the enumerated powers ceded to the federal government by its creators, the states. The questions then arise, just what does “well-founded” mean, and how broad are the enumerated powers?
Fortunately for our understanding, the states provided further and subsequent instruction about both of these topics in a later addition to the Constitution, what we know of as the Bill of Rights. In that further declaration, the states used language such as “Congress shall make no law,” “shall not be infringed,” “shall not be violated,” “shall not be required,” “shall not be construed,” and other language clearly intended to restrict application of the enumerated powers and what might be considered “well-founded,” and what might be allowed as supreme under the Supremacy Clause.
It is important to our understanding of the role of the Supremacy Clause that there is an ancient principle of law, pre-dating the Roman Empire, that if there is a conflict between two provisions of a co-equal body of law, the most recently enacted must be given deference as the most recent expression of the enacting authority. Absent this principle, no law could ever be amended once enacted. This logical and uncontested principle requires that the later enactment of the provisions of the Bill of Rights must prevail in any conflict with the underlying Constitution it amends, including trumping any application of the Supremacy Clause which proposes to implement one of the enumerated powers but which may be in conflict with any provision of the power-defining Bill of Rights.
High school civics also teaches, unfortunately and incorrectly, that the Supreme Court is given the authority to make final decisions about how much power the states have granted the federal government. This notion is improper because the Supreme Court is but one branch of the federal government created by the states, and subject to the will and constraints of its creators, the states, just as are the other branches. Some argue that the states signed onto a system that placed a branch of their servant superior to the states. That was not the original understanding, but one that was invented by Chief Justice Marshall to gain authority for the Supreme Court. And, as a matter of principle, that authority can be abused and have most unfortunate consequences.
I’ll offer one example whereby the Supreme Court impermissibly and improperly, but effectively, amended the Constitution to shift vast amounts of power from the masters, the states, to their servant, the federal government (including one branch thereof, the Supreme Court).
In a 1942 case called Wickard v. Filburn, the Supreme Court deliberately changed the definition of three well-understood words in our language. Imagine if the Supreme Court held that “freedom of the press” only applied to wine presses. What it did was similarly egregious. Among the powers allowed Congress in Article I, Section 8 of the Constitution is the power to “regulate commerce … among the several states …” In order to shift considerable and unintended power to the federal government, the Supreme Court totally redefined “regulate,” “commerce,” and “among.”
Prior to the Wickard decision, “regulate” had always meant “to make regular.” In order to shift power from states to the federal government, the Supreme Court redefined “regulate” to mean “prohibit.” Prior to Wickard, “commerce” had always been understood to mean only gross trade. However, in Wickard the Supreme Court redefined “commerce” to mean any economic activity, no matter how minor. Finally, the word “among” is a bit slippery to define, although we all know what it means. However, it is easy to define what “among” does not mean with a simple thought experiment. Suppose we say that “among” the four children they have enough money for three ice cream cones. Question: Do we need an X-ray machine to find the money? Obviously we don’t, because the money is not “within” the children. Thus, “among” does not mean “within.” However, to accomplish its shift of power from states to the federal government in the Wickard decision, the Supreme Court had to redefine “among” to mean “within.”
The redefinition of all three critical words was essential to the Supreme Court’s Wickard decision and the Court’s significant transfer of power from the states to their servant, the federal government. By this decision, the Supreme Court effectively and improperly amended the Constitution — changed its meaning. And, this shows the danger of assuming that one branch of the servant federal government should be allowed to determine what powers that servant should be able to wield.
Finally, this is exactly why the states are properly rising up to assert both the proper limitations they imposed on the federal government (including the commonly misunderstood Supremacy Clause) and the powers the people and the states very deliberately reserved to themselves from federal interference, especially by the Ninth and Tenth Amendments. The thesis is that the states created the run-amok monster the federal government has become. Now it’s time for the states to get their monster back on its leash.
Gary Marbut is a successful citizen advocate, the creator of political efforts such as the Firearms Freedom Act movement, the president of the Montana Shooting Sports Association, and is accepted in state and federal courts as an expert in self-defense, use of force, and firearms safety.