WHEN may courts lawfully strike down, under the “supremacy clause”, State laws and provisions in State Constitutions?
By Publius Huldah
The courts have lawful authority under the supremacy clause of the federal Constitution (Art. VI, clause 2) to overturn SOME Amendments to State Constitutions and SOME State laws.
It depends on whether the State provision conflicts with the federal Constitution, or with an Act of Congress which is authorized by the Constitution, or with a Treaty which is authorized by the Constitution.
For example: Say a State law says you have to be 45 years old to run for President. That would conflict with Art. II, Sec. 1, clause 5, US Constitution, which establishes 35 years as the minimum age requirement. State laws can’t contradict the Constitution. So a court could properly strike down the State law which says Presidents must be at least 45 years old.
Do you see? The State Law, or State Constitutional provision, or State judicial opinion must CONTRADICT something in the federal Constitution, or Acts of Congress authorized by the Constitution, or Treaties authorized by the Constitution – before it may lawfully be struck down under the supremacy clause.
THE REASON AMERICANS HAVE SUCH DIFFICULTY UNDERSTANDING THIS IS BECAUSE THEY HAVE NOT GRASPED THE SIMPLE CONCEPT THAT OUR FEDERAL CONSTITUTION CREATED A NATIONAL GOVERNMENT OF “ENUMERATED POWERS” ONLY.
When acts of the national government are authorized by the Constitution, States can not lawfully contradict such acts.
But when acts of the national government are not authorized by the Constitution, then State legislators, officials and judges are obliged by their Oaths of Office to SPIT ON UNCONSTITUTIONAL ACTS OF THE NATIONAL GOVERNMENT.
The KEY QUESTION IS ALWAYS – ALWAYS – ALWAYS – ALWAYS: What provision in the federal Constitution authorizes the national government to act on the issue in question?
Now I ask all of you a question: Can you cite Article, Section, and clause of the federal Constitution which authorizes the national government to meddle in “abortion”, “homosexuality”, or “marriage” over the Country at Large?
Can’t find it? What does that tell you? It should tell you that the national government has no authority to meddle in these three areas. My paper on marriage explained this very clearly, I thought……
So when the national government has no constitutional authority to meddle in an area, they may not lawfully strike down State provisions on these areas. When they do so anyway, the States and The People must man-up and resist!
But when the national government has constitutional authority to act in an area, then any State Constitutional provision or State statute in contradiction thereto can properly be struck down under the supremacy clause.
Americans have totally failed to understand that the list of areas in which the national government has constitutional authority to act is…… A VERY SHORT LIST. The list is so short that you all ought to have the list in your heads. Check it out HERE.
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PUBLIUS HULDAH
Publius-Huldah's Blog 
With regards to dunderheads…the bill of rights is applicable to all governments in our federal system. Our rights, whether declared in the Constitution or not, are superior to all laws and the Constitution, nor can they regulated, else they are not rights. To say the declared and affirmed rights found in the Constitution only apply to the national or general governments contradicts the very essence and nature of rights that the Constitution and our governments were created to protect.
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You don’t know what you are talking about. And are too close minded to listen. So I won’t waste any time explaining it to you.
PS Added Sep 11: I shouldn’t have said the above. I am trying to learn patience. Pastor Ted set a good example in his response to Ron Vrooman [see below] which I will strive to follow.
But Rob John, you would try the patience even of a saint. Mother Theresa would roll her eyes at you.
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that doesn’t mean you can’t share it with the rest of the world
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Slap my hand, Benny5555. You are quite right. Thank you.
We KNOW the Bill of Rights (B/R) was intended to apply only to the national government:
1. As Andrew Nappi already said, look at the Preamble to the B/R: This is from a Transcription of the 1789 Joint Resolution of Congress Proposing 12 Amendments to the U.S. Constitution:
See http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
2. Various of the amendments in the B/R show by the terms used that they are intended to restrict only the national government:
1st Amdt: Congress shall make no law…
3rd Amdt: The States have no jurisdiction to quarter federal soldiers in private homes – only the national gov’t could order that!
5th Amdt: The reference to land or naval forces shows the amendment is directed only to the national govt.
6th Amdt: The term “district” shows the amendment is directed only to the national govt. The federal court system is divided into approximately 94 federal “districts”. Each State contains one or more federal “districts”. This map shows the geographic location of the federal Circuit Courts of Appeal and the federal district courts. https://en.wikipedia.org/wiki/United_States_courts_of_appeals
7th Amdt: The phrase, “in any court of the United States”, shows the amendment is directed only to federal courts.
3. In Barron v. Baltimore, SCOTUS wrote in 1833 that the B/R was intended to apply ONLY to the national government. https://www.law.cornell.edu/supremecourt/text/32/243
4. In Federalist No. 84, Hamilton said that in a government founded on popular consent, bills of rights are not only unnecessary, they are DANGEROUS.
Hamilton points out that when a King claims total and absolute power, a B/R is appropriate to carve out exceptions to that absolute power. Remember King John I: He claimed total & complete power over his subjects. The Magna Charta carved out exceptions to that total power.
Hamilton said in No. 84, if you carve out exceptions to powers not granted [as with a B/R] you provide a pretext to regulate to those who are inclined to usurp.
THAT IS WHAT HAPPENED. Hamilton’s warnings came true. See next paragraph.
5. The damned “incorporation theory” fabricated by SCOTUS: Read this paper which explains how SCOTUS perverted the 1st Amendment and used it to seize power over the States to silence religious speech all over the Country which THEY DIDN’T LIKE: https://publiushuldah.wordpress.com/2009/06/19/religious-freedom/
Note especially para 12, where I discuss Gitlow v. People (1925): that is the origin of the accursed “incorporation theory” which statist lawyers simply ADORE.
So SCOTUS has used this “incorporation theory” to apply most of the B/R to the States in order to set themselves up as overseers of what the STATES do respecting the objects of those amendments.
6. So THIS is how SCOTUS seized power over the States respecting the objects of the B/R.
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Indeed, people fail to understand federalism. They think the federal government is a national government. The federal government acts as a national government only with respect to other nations, and on behalf our State governments.
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It is supposed to be a national gov’t with respect to all of the 18-21 or so enumerated powers delegated over the Country at large. Our Constitution contemplates a nation-wide system of standard weights & measures, patents & copyrights, bankruptcy laws, a standard currency based on gold & silver; mail delivery, etc.
And, as you point out, it is also a national gov’t for the purposes of military defense and international relations and commerce.
But yes, today, the States have become administrative subdivisions of the gov’t headquartered in D.C. They were seduced by federal funds – that’s why they sold the retained powers of The States and The People to the national gov’t.
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I learn a great deal visiting here and thank you for your continued efforts to educate those who want to be educated. Without being able to quote the constitution as I can quote the Bible, I have a question. You write:
“Now I ask all of you a question: Can you cite Article, Section, and clause of the federal Constitution which authorizes the national government to meddle in “abortion”, “homosexuality”, or “marriage” over the Country at Large?”
I cannot, yet I understand that fed.gov has zero authority over marriage, etc.; but, does fed.gov not have the authority/responsibility to protect the lives of its people, even people in the womb? Liberty and the pursuit of happiness go nowhere without life… Should abortion not be murder even at the federal level?
grace and peace;
Ted
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No abortion is not murder. If you minded your own business, instead of the business of a sovereign woman, you could spend the time minding your own business. This is a woman’s choice as it is her body and she decides to carry to term or not.
Find something useful to do.
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Ron Vrooman: You are a nasty man. I think you should mind your own business and keep away from my website.
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Psalm 139:13-14… “For thou hast possessed my reins: thou hast covered me in my mothers womb. I will praise thee; for I am fearfully and wonderfully made: marvelous are thy works; and that my soul knoweth well.”
Ron, has anyone ever loved you enough to tell you that Jesus Christ died for your (and women who have murdered their babies) sins?
Romans 5:8… “But God commendeth His love toward us, in that, while we were yet sinners, Christ died for us.”
It’s true. God has forgiven you personally (and all mankind) all its collective trespasses in this dispensation of freely given grace (Col 1:25-29, Eph 3, KJB).
Colossians 2:13… “And you, being dead in your sins and the uncircumcision of your flesh, hath He quickened together with Him, having forgiven you all trespasses.”
2 Corinthians 5:19-21… “To wit, that God was in Christ, reconciling the world unto Himself, not imputing their trespasses unto them; and hath committed unto us the word of reconciliation. Now then we are ambassadors for Christ, as though God did beseech you by us: we pray you in Christs stead, be ye reconciled to God. For He hath made Him to be sin for us, who knew no sin; that we might be made the righteousness of God in Him.”
God freely gives to us His very own righteousness if we simply believe what He says to us. We don’t earn it, nor do we deserve it (we are sinners)… it is imputed to our eternal account. That is Divine Grace.
While this verse in Jeremiah is speaking specifically about the person of the prophet of Israel, it demonstrates clearly that God knows intimately any individual before, during and after conception. Men and women are not sovereign however much we might care to believe that. God only is Sovereign. We are Gods creatures. He made us, we left Him, and He bought us back with His own blood and we are ultimately responsible to Him. It is far better to learn this immutable fact while you still live and breathe no matter what discomfort it may cause you here (that discomfort will eventually become wonderfully liberating Truth) because the discomfort you will experience in eternity apart from God (people ARE eternal beings) is extreme to say the least. But it is your choice.
Jeremiah 1:5… “Before I formed thee in the belly I knew thee; and before thou camest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations.”
Eve believed herself to be sovereign. Who gave her that idea? Gen 3:5… “Ye shall be as gods…”
grace and peace;
Ted
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that’s why they always say it’s a free country live it the way you want to live it and now they want to try to take them all back I don’t think so.
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Thank you, Pastor,
The Declaration of Independence is the fundamental act of our founding. It recognizes that Rights come from God and the purpose of government is to secure the Rights God gave us.
With our Constitution, we set up a “federal” system. Our “federal” gov’t is a federation of sovereign States united under a national gov’t for those limited purposes itemized in the Constitution; with all other powers reserved to the States or the People.
So the national gov’t is to secure certain of the God-given rights in those ways appropriate to the national gov’t of a federation. And the State gov’ts are to secure God-given rights in those ways appropriate to a gov’t which is closer to The People.
I depicted this concept in the Chart here: https://publiushuldah.files.wordpress.com/2013/08/chart-showing-federal-structure-3-1-part-a2.pdf
So the national gov’t is to secure our right to life by military defense, controlling immigration, stopping invasion, and prosecuting traitors, pirates, and other felons on the high seas.
The State gov’t are to secure our right to life by protecting us from murderers, rapists, baby killers, abortionists, euthanizers, etc. as depicted on the chart.
I wrote about the concept in this short paper: https://publiushuldah.wordpress.com/2014/12/01/how-our-federal-constitution-secures-our-god-given-rights/
Abortion is not on the list of enumerated powers delegated to the national government. Power over that was retained by the States and The People. That worked well until 1973 and the Roe v. Wade decision. Before Roe v. Wade, many states criminalized abortion. It used to be criminal all over the Country. But we have long been in a moral decline. In the 1960s, the decline was a freefall.
And of course “securing the right to life” via welfare, food stamps, Medicaid, etc. violates the Right God gave us to private property. God NEVER required us to subsidize other peoples’ vice, laziness and irresponsibility.
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Excellent and very clear… thank you!
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At your service, Pastor.
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Reblogged this on SiriusCoffee.
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Man up! I find that the corruption in local, county and Oregon is so deep it is unconscionable but true. The judges are attorneys and the laws in Oregon say the we the people have no standing when bringing charges for prosecution. The AG and DAs say prosecutorial discretion. The feds refuse also.
I have found many that have gone down this path. I cannot lose until I quit. Winning, even a day in court, seems very unlikely. At this time.
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We must fight; but unless we “fight smart”, we are exhausting ourselves to no purpose.
In Oregon, are the State prosecutors elected? If so; and if bad ones are being elected, then the blame falls on the shoulders of The People.
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One of the single most devastating blows to federalism besides the Lincoln years is the unchallenged imposition of incorporating the Bill of Rights against the States. How many people know of,let alone have read the Preamble to the BofR? Incorporation has enabled a central govt to extinguish sovereign state law. This abomination is supported by every single issue group out there from guns to godlessness. Once the general govt is freed from its chains and allowed to define those same prohibitions,it then determines the limitations of “rights” where in fact it was meant to have no jurisdiction; from there it parcels out an ever increasing restriction of rights in doses it feels cannot threaten its existence. We have achieved that level of nationalism warned about by that great Christian gentleman Robert E. Lee– an all powerful national govt that is aggressive abroad and despotic at home.
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I know, Friend. You are absolutely right. And when I have railed against the incorporation doctrine and have said that the first Ten Amendments were intended to restrict only the national government – the dunderheads out there on “our side” have attacked me for being “against rights”.
Alexander Hamilton warned that in a Constitution based on popular consent, bills of rights are not only unnecessary, they are dangerous b/c they provide a pretext to regulate to those inclined to usurp (Federalist No. 84 around the 10th para). He was right; and what he foresaw came to pass.
I fear I am coming to the conclusion that People are just too stupid to be free.
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I know those “dunderheads” PH. They have bought the hoax hook,line and sinker. You are a treasure my friend.
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I, myself have been trying to tell people the same thing. That chart you have made on the powers of the federal government and the States and People sums it all up. I’ve handed a copy of that out to different people. Quite a few of people thanked me for the copy but sad to say more just got rid of it. What more can a person do? The number of people who say they don’t want to hear this is unbelievable. I will not give-up. Once again thank you for all you do for us who care about our country. God Bless You!!
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The ones who don’t want to hear are PLUGGED INTO THE MATRIX! Amazing.
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