1. The supremacy clause of the federal Constitution (Art. VI, clause 2) says that only the Constitution, laws made pursuant to the Constitution, and Treaties made under the authority of the United States are the supreme law of the land. Supreme Court “opinions” are NOT part of that supreme law.
2. Supreme court opinions are not “law” — they are OPINIONS on the cases [rightly or wrongly] before the Court. The ONLY ONLY ONLY federal law in this land is: The Constitution, Laws made by Congress which are permitted by the Constitution, and Treaties made by the President and the Senate which are permitted by the Constitution.
Supreme Court opinions are NOT LAW.
3. But the statists have managed to convince most Americans that the Supreme Court is THE highest law making body in the entire Country. If people would only read our federal Constitution and use their heads, they would have seen through this absurd claim 100 years ago.
By Publius Huldah.
In response to a recent article in the National Review by Allen C. Guelzo, a nullification denier and history professor at Gettysburg College, and two responding letters to the Editor,1 one “Celticreeler” posted an astute rebuttal you can read here.
The issue in the National Review article and letters is this: Guelzo denies that States have any right to nullify unconstitutional laws made by Congress. He looks at Art. VI, clause 2, U.S. Constitution (the “supremacy clause”) which reads,
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… [emphasis added]
and concludes that any law made by Congress is the “supreme” law of the land; and everyone must obey, unless & until five (5) judges on the supreme Court say they don’t have to. He claims that only judges have authority to nullify unconstitutional acts of Congress.
In her rebuttal, Celticreeler correctly points out that the phrase, “in Pursuance thereof”, “limit[s] the federal government’s supremacy to laws that were made pursuant to the Constitution…”
She also reprints Guelzo’s reply to her letter to the Editor. And what he says in his reply is so at odds with the words of our Framers, that I am compelled to respond.
We will look at four Founding Principles which Guelzo rejects and reverses.
1. What does “In Pursuance thereof” Really Mean?
Guelzo says in his reply,
“In pursuance thereof ” was intended only to recognize that, at the time of the Constitution’s adoption, no body of legislation had yet been made under the Constitution…
What? He presents no proof – though he does throw in the factoid that “The supremacy clause was written by an anti-Federalist, Luther Martin, whom we might presume to have entertained a few anxieties about an overmighty federal government”.
Actually, Luther Martin said the clause he proposed was “very materially different from the [supremacy clause] clause adopted by the Constitution” 2; but I will not quibble.
In any event, it is The Federalist Papers which are authoritative as to the genuine meaning of the Constitution 3 – not speeches of delegates to the Federal Convention (thou they can shed light). And this is what The Federalist Papers say about Art. VI, clause 2, and “in Pursuance thereof”:
In Federalist No. 33 (6th para), Alexander Hamilton says:
…But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union … EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION … [capitals are Hamilton’s]
In the next para, Hamilton says that a law made by Congress which is not authorized by the Constitution,
…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…. [boldface mine]
In Federalist No. 27 (last para), Hamilton says:
…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS… [capitals are Hamilton’s; other emphasis mine]
And in Federalist No. 78 (10th para), Hamilton says:
…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis mine]
Do you see? Federalist No. 33, 27, & 78 are clear: Acts of Congress which are not authorized by the Constitution are “void” – they are “mere usurpations and deserve to be treated as such”. They are not made “in Pursuance” of the Constitution and have “supremacy” over nothing. 4
2. Who is Supposed to Look to the U.S. Constitution for Permission: The Federal Government, the Member States, or the People?
Guelzo says (in his reply):
If the Founders had wanted to grant nullifying power-to the states or any other body-they would have had more than sufficient opportunity to include it in the Constitution. [boldface added]
Guelzo thus asserts that the States [i.e., the Members of the Federation] don’t have any powers unless “the Founders” said they could have them and wrote it into The Constitution! He demands that the States look to the Constitution to see what they are permitted to do! According to Guelzo, if the Constitution doesn’t give States permission, they can’t do it.
Guelzo has it backwards – our Founding Documents refute his words. The second paragraph of The Declaration of Independence says that Rights come from God and to secure these rights, 5
Governments are instituted among Men, deriving their just powers from the consent of the governed, –
So, governments have only those powers “the governed” permit them to have! In our Constitution, WE THE PEOPLE, acting through our Representative States, decided what powers WE would delegate to the federal government.
Accordingly, WE THE PEOPLE created the federal government when WE, acting through our States, ordained & established the Constitution for the United States of America. In the Constitution, WE itemized the powers WE granted to each branch of the federal government. No Branch of the federal government may lawfully do ANYTHING unless WE authorized it in the Constitution. WE are the Creators; those in the federal government, are merely our “creatures”. In Federalist No. 33 (5th para), Hamilton calls the federal government our “creature”; and points out that it is up to THE PEOPLE to smackdown the federal government when it “overpass[es] the just bounds of its authority and make[s] a tyrannical use of its powers”. 6
In Federalist No. 32 (2nd para), Hamilton says,
…the State governments …clearly retain all the rights of sovereignty which they before had, and which were not… EXCLUSIVELY delegated to the United States. This exclusive delegation …of State sovereignty would only exist in three cases… [caps are Hamilton’s, boldface mine]
The Tenth Amendment says:
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. [emphasis added]
Do you see? Guelzo reverses & perverts the whole point of Our Declaration of Independence, Our Revolution, & Our Constitution.
It is each of the three branches of the federal government (Legislative, Executive, & Judicial) who must look to the Constitution to see what powers WE THE PEOPLE, acting through our States, allowed them to have. All other powers are reserved to The States or The People.
3. Who Has Authority to Nullify Unconstitutional Laws Made by Congress?
Guelzo says, respecting the power to nullify a law made by Congress,
…That determination lies in the hands of the courts, under the principle of judicial review laid down in McCulloch v. Maryland in 1819…
McCulloch v. Maryland? In McCulloch v. Maryland, the supreme Court decided [wrongly] that Congress has power under various of the enumerated powers listed at Art. I, Sec. 8, clauses 1-16, and the “necessary & proper clause” (Art. I, Sec. 8, last clause) to incorporate a national bank. That case is not about “judicial review”.
And in the Constitution, WE did not delegate EXCLUSIVE authority to federal judges to nullify unconstitutional laws! Furthermore, the Oaths of Office at Art. VI, cl. 3 & Art. II, Sec. 1, last clause, impose on all who take them an obligation to uphold the Constitution against usurpations by the federal government. Thus, nullification is both a Power retained by the States & The People as well as an Obligation imposed by Oath.
And REMEMBER! Our Rights pre-date & pre-exist The Constitution. Thus, nullification of usurped powers is a natural right – it is the remedy against insupportable oppression by the federal government. 7
4. In Our American System, WE Do Not Take Oaths To Obey Persons, Institutions, Or Judges.
I have proved elsewhere that nullification of unconstitutional laws, executive orders, supreme Court opinions and treaties is required by the Constitutional Oaths of office. That Oath requires that all who take it swear or affirm that they will support the Constitution. In our American system, we do not take Oaths to obey persons, institutions, or courts. Here are two papers explaining the legal & moral imperatives of nullification: Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, & Jefferson and The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges 8
Guelzo’s Statist Vision.
Guelzo’s vision is this: Every law made by Congress [the Legislative Branch of the federal government] is “supreme”; and the Member States & WE THE PEOPLE must obey, unless & until five (5) judges on the supreme Court [the Judicial Branch of the federal government] say the law is unconstitutional. In other words, Guelzo holds that only the federal government may question the federal government.
His words are poison. Under his vision, the federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five judges, not the Constitution, is the sole measure of its powers. It is an evil ideology. And, as I have proved herein, it is antithetical to our Founding Documents and Principles. 9 PH
1 Celticreeler states that Guelzo’s original article appeared in the February 21, 2011 issue of National Review. In response, she submitted a letter to the Editor, and Guelzo replied. Celticreeler reprints Guelzo’s reply in her linked rebuttal. Guelzo’s original article is available to subscribers only.
2 You can read Martin’s actual comments (March 19, 1788) here: Luther Martin’s Reply to the Landholder.1
3 The Federalist Papers were written during 1787-88 to explain the proposed Constitution to The People and to induce them (through their States) to ratify it. For this reason, The Federalist Papers are authoritative on the genuine meaning of the Constitution. And at a meeting attended by Thomas Jefferson & James Madison of the Board of Visitors of the University of Virginia on March 4, 1825, the following resolution selecting texts for the Law school was passed:
…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83) [emphasis added]
Someone! Show Professor Guelzo the on-line edition of The Federalist Papers so he can learn the genuine meaning of the Constitution! Salvage the minds of the young people who the administration of Gettysburg College places in Guelzo’s care.
4 Using The Federalist Papers as Proof, I explain the “Supremacy Clause” here: The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & Concurrent Jurisdiction Explained. Guelzo mentions “preemption” [it does sounds “grand, doesn’t it?]; but in this paper I explain the interplay between constitutional federal & Reserved State powers.
5 It is impossible to understand The Constitution without acknowledging the Principle set forth in Our Declaration of Independence that that our Rights are granted to us by The Creator God; they thus pre-exist & pre-date The Constitution, and are unalienable by man. WE do not look to The Constitution for our Rights! I explain our Rights here.
6 Here are Hamilton’s actual words:
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. (Federalist No. 33, 5th para) [emphasis added]
7 In his writings on Nullification, our beloved Thomas Jefferson distinguishes between [mere] “abuses of delegated powers” and the assumption of powers “which have not been delegated”:
…in cases of an abuse of the delegated powers, the members of the General [federal] Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them:.. [boldface added]
I.e., if Congress merely abuses a delegated power [e.g., makes silly bankruptcy laws (Art. I, Sec. 8, cl. 4)], then the proper remedy is to vote the Representatives out of office and replace them with sensible ones who will repeal the silly bankruptcy laws.
But if Congress assumes a power which has not been delegated to it – e.g., control of the Peoples’ medical care – then each State has a natural right to nullify it within their own borders. It is outside the compact the States made with each other – the States and the People never gave their “creature” (the federal government) power over their medical care! Without Nullification, the States and the People would be under the absolute & unlimited control of the federal government.
8 Remember! We expect the lowest-ranking soldier to refuse to obey an unlawful order even when given by a commissioned officer. See “A Duty to Disobey: The Forgotten Lessons of My Lai“, by military lawyer Robert S. Rivkin. And do not forget the Nuremberg trials – defendants claimed they were “just following orders”. The Court properly rejected that defense.
Do we ask less of ourselves and our State & federal officials than we do of 18 year-old soldiers when we are confronted with unconstitutional acts of the federal government? The three branches of the federal government have connived against us – THE PEOPLE. So smack them down! Can we live up to our Framers’ expectations as set forth throughout The Federalist Papers? See also, What Should States Do When the Federal Government Usurps Power? for advice from James Madison.
9 Does Professor Guelzo understands the poisonous import of his words? Or did he uncritically accept, and does he unthinkingly recite, what he has been told? What he says is the prevailing dogma of our time – most lawyers believe it because it is what they were told in law school. Theirs’ are minds which have never been trained to think, and they are ignorant of the concept of “objective meaning”. I address the problem of inability to think and our moral & intellectual corruption here: How Progressive Education & Bad Philosophy Corrupted The People & Undermined The U.S. Constitution PH.
April 17, 2011
God’s Gift of Unalienable Rights & Article VI of the Constitution: The Sword & Shield to stop the islamization of America.
By Publius Huldah.
This is an encouraging paper, because it explains the moral and constitutional justifications to stop the islamization of our country.
We face a grave threat – the Muslims are infiltrating our country and taking over. We seem powerless to resist: Our governments won’t acknowledge the threat; we are told Muslims have “constitutional rights” to come here, proselytize everywhere, build mosques, and implement shariah in their communities and in the public square; and our governments are letting them do it.
The Muslims seek to replace our Constitution with shariah – their totalitarian political, economic, military, social & legal system – with the goal of incorporating our Country into a global Islamic caliphate.
They are making progress in islamicizing our Country because we are not resisting.
And the dreadful message we are getting from all sources is that our Constitution renders us powerless to resist islamization.
But read on, and I will show you how our Constitution & Declaration of Independence – properly understood – actually give our federal, State & local governments justification and authority to stop the islamization of our Country. Once we understand two things, it becomes clear what we may – and must – do:
One: Islam is not a “religion” in the sense we understand religion. Islam is about TOTAL POWER. It is a system which controls every aspect of the lives of those who have the misfortune to be subjected to it. It masquerades as a religion, but once we understand that it is just another totalitarian system – like soviet communism, we can deal with it and defeat it.
Once in place, Islam is enforced with stone-age barbarism. It masquerades as a religion to recruit gullible fools who become suicide bombers, and to provide “cover” for officials in the Western countries who, indoctrinated with the Lies of multiculturalism & political correctness, look for an excuse to do nothing.
Two: We must understand Our Founding Principles – these are our Sword & Shield – that (1) Rights come from God alone, (2) Muslims do not have the right to divest us of our Rights, and (3) the purpose of civil government is to secure the Rights God gave us.
Now let us learn more of our Sword and Shield.
1. Let us first consider Our Rights. What are our rights, and where do they come from? The Constitution? The First Ten Amendments? NO! The Declaration of Independence says:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – that to secure these rights, Governments are instituted among Men, …
Those words are golden: Our Rights come from God Who Created the Universe; and the purpose of civil government is to secure the Rights GOD gave us.
God gave us many Rights: Life! Liberty! Pursuit of Happiness!
To work and enjoy the fruits of our own labors. To earn, inherit and keep private property.
To demand that the civil authorities obey the Law – and to hold them accountable when they don’t.
To have a civil government which protects our God given rights, protects us from invasion and criminals, but gives fair trials to accused persons.
Equal treatment under the law: Courts are not to favor the rich, or the poor, or males or females.
God means for us to enjoy life! Healthy food, wine and strong drink (in moderation); attractive dress for women, the marriage relation between man & woman, prosperity, and liberty!
As long as we obey the criminal laws (don’t murder, steal, bear false witness, and the like), we have the right to be left alone.
Liberty is the rule in God’s Model for civil government. That is why our Liberty Bell quotes Leviticus 25:10 – “Proclaim LIBERTY throughout all the Land unto all the Inhabitants thereof.”
2. Do Muslims respect the rights God gave us?
Life? Theirs is a culture of death: murder, honor killings & suicide bombers.
Liberty? Theirs is a culture where women are slaves and prisoners, little girls toys for old men, and conversion to Christianity a capital offense.
Pursuit of Happiness? Theirs is a culture of torture & sadism. Young Muslim girls in America who talked to non-Muslim boys were shot to death by their father in the back seat of his taxicab. Wife-beating is commonplace. Women who don’t cover their hair are lashed. Women are mutilated and maimed on the faces and even in their private places.
Freedom of Speech? Theirs is a culture where criticizing Islam leads to a terrible death.
You can go down the list: For every Right God gave us, the Muslims take it away.
Let’s look at just one God-given right – the Right to a fair trial:
Bearing false witness is condemned (The Ten Commandments); the evidence of two or more witnesses is required to prove a case (Deut 19:15 & Matthew 18:16); public trials are required (Exodus 18:13); & judges are required to be fair, impartial, & without favoritism. (Deut. 1:16-17).
Do Muslims respect this God-given right to a fair trial? NO! In Iran, judges in “morals” cases (adultery) are allowed to make their own subjective determinations that a person is guilty even in the absence of any EVIDENCE!
Do Muslims have the “right” to impose in this Country a shariah system which takes away the rights GOD gave us? No! God did not give Muslims the “right” to take away from us, the rights He gave us!
3. We are told Muslims have a “First Amendment right” to build mosques, proselytize, and implement shariah here. But is that what the First Amendment says? No! Let’s read it:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment doesn’t grant any rights to anybody! All it does is prohibit CONGRESS from making laws about religion, speech, the press, or assembly!
So Muslims do not have a “First Amendment right” to build mosques, proselytize, and implement shariah here.
4. Not only do Muslims claim the “right” to impose shariah in the Muslim communities springing up throughout our Country, they also claim the “right” to impose shariah law in the public square: They demand shariah compliant financial institutions, foot baths in public places, that wine, sausages, and the like be banned from their presence, that they be allowed to shut down public streets for “prayers”, etc.
Do Muslims have the “right” to apply their law here? No! Art. VI, clause 2 of Our Constitution 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
OUR Constitution and laws authorized by OUR Constitution are the supreme law of this land – and anything to the contrary must fall. It violates Our Constitution for Muslims to practice shariah here! Muslims who thus seek to overthrow Our Constitution and replace it with shariah are guilty of criminal sedition. The federal government has the duty to prosecute them for sedition – or deport them.
5. Can the federal or state or local governments properly extend to Muslims a “right” to build mosques & proselytize here? No! Because The Declaration of Independence says the purpose of civil government is to secure the rights God gave us. Muslims seek to take away our God-given Rights. Civil government is supposed to protect us from those who seek to divest us of our Rights.
We must insist that our federal, State, and local governments STOP the islamization of Our Country. We must insist that they live up to the one legitimate purpose of civil government: to protect our GOD-given rights.
6. WE are a Christian Country based on Judeo – Christian principles. Our Constitution is not a suicide pact. It does not require us to permit Muslims to take Our Country over and destroy Our principles and impose their barbaric totalitarian system on us.
The Declaration of Independence recognizes God as Creator, supreme Judge and Regulator of the World, and as our Divine Protector.
Article VII of Our Constitution, just above the signatures, recognizes the Lordship of Jesus Christ. It says,
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven …
7. So! Let us summarize the above three Principles:
(1) Our Rights come from God – they predate & preexist the Constitution. Our Constitution doesn’t give “rights” to anybody. So Muslims don’t have “constitutional rights” to come here, build mosques, proselytize, and impose shariah.
(2) All the Evidence shows that Muslims take away from People the Rights God gave them. Since Our Declaration of Independence acknowledges that the purpose of civil governments is to secure the Rights GOD gave us, it is the duty and responsibility of civil governments at all levels to protect us from islamization.
(3) Article VI, clause 2, U.S. Constitution – the “Supremacy clause” – makes it unconstitutional for Muslims to practice shariah law ANYWHERE in Our Country.
8. The Center for Security Policy recently issued a scholarly (but readable) report: “Shariah: The Threat to America”. Important suggested policy changes are listed on pages 141-144. Tell your tea party groups! Take delegations to your local, state, and federal representatives and tell them about it. Most of them are weak & ignorant, so you must educate them and demand that they do their job and defend your community from islamization.
9. Dutch Member of Parliament Geert Wilders lists ten steps western countries must take to stop the islamization of their countries. All ten steps are mandated by our Declaration of Independence, and consistent with our Constitution:
(1) Stop cultural relativism: We must formalize the Idea that we have one dominant culture that is based on Judaism & Christianity [Wilders adds “humanism”].
(2) Stop pretending that Islam is a religion.
(3) Show the true face of fundamentalist Islam. It is a brutal totalitarian ideology.
(4) Stop all immigration from Muslim countries. For Muslims who are already citizens, tell them that if they adhere to our values and our Constitution, they may stay as equals. But if they deviate, we will expel them.
(5) Outlaw shariah and deport practitioners.
(6) Require Muslims to sign legally binding pledge of integration and allegiance.
(7) Stop building mosques.
(8) Seek reciprocity with Saudi Arabia for western churches & synagogues.
(9) Close all Islamic schools – they are fascist institutions teaching hate.
(10) Remove our current weak leaders.
It is time to boldly stand up for Our God, OUR Declaration of Independence, and Our Constitution, and say, “No!” to those who are taking over Our Country. It is time to use Our God-given unalienable Rights and Our Constitution as the Sword & Shield they are meant to be. We can and must use these to defeat Islamization. PH
September 19, 2010
Post Script added July 22, 2011
Watch Melanie Phillips explain how the abandonment of the concepts of Objective Truth and the embracing of moral relativism & multiculturalism is permitting the islamization of England:
The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & Concurrent Jurisdiction Explained.
By Publius Huldah.
The Sovereign State of Arizona recently made a law which provides for the cooperative enforcement – with the federal government – of federal immigration laws throughout Arizona. The People of Arizona are suffering terribly from massive Invasions of their Southern Border; and because the federal government refuses to repel the Invasions, the People of Arizona are forced to defend themselves.
Here is the text of the amazingly innocuous Arizona Law. Read it, and you will know more about it than the Attorney General of the United States, Eric Holder! On May 13, 2010, Holder testified before Congress that he hadn’t read the Arizona Law; even though on previous occasions, he attacked the Law as “an unfortunate one”, which is subject to “potential abuse” and the “possibility of leading to racial profiling”. In short, he, Eric Holder, doesn’t think the Arizona Law is “necessarily a good idea”.
Of course, Holder’s personal views are irrelevant when it comes to official Acts of Sovereign States. The only legitimate Question is this: Does the Arizona Law violate the U.S. Constitution? And the clear answer to that Question is, “No!”
1. Let us look at the “supremacy clause” of the Constitution. Article VI, clause 2 says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]
Note the two emphasized phrases, for therein is the Answer to the Question.
a) First, we must learn that only Laws made by Congress which are pursuant to the Constitution qualify as part of the supreme Law of the Land. Alexander Hamilton says in Federalist No. 27 (last para):
…the laws of the Confederacy [federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws… [emphasis in original]
In Federalist No. 33 (next to last para), Hamilton says:
…But it will not follow…that acts of…[the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the..[the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such…[Art. VI, cl. 2] EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION … [emphasis in original]
In the next paragraph, Hamilton points out that a law made by Congress which is not authorized by the Constitution,
…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution….
So! When Congress makes laws which are not within its enumerated powers, such pretended laws are mere acts of usurpation and have “supremacy” over nothing.
b) Second, note that Art. VI, clause 2 also shows that only laws of States which are Contrary to the Constitution must fall. States may make whatever laws they wish (consistent with their State Constitutions) except as prohibited by the US Constitution. Laws specifically prohibited to the States are listed at Art. I, Sec. 10. States also may not properly make laws which contradict the Constitution. For example, a State Law which purported to permit 25 year olds to be US Senators would contradict Art. I, Sec. 3, clause 3, and thus would fail under the “supremacy clause”.
So Remember! When a State Law is not contrary to the Constitution, it remains in full force & effect and is not affected one jot by the “supremacy clause”.
2. Let us now look at “exclusive jurisdiction” – those very few matters in which the federal government has sole authority to act. Obviously, when Our Constitution bestows sole authority on the federal government, then any State Law to the contrary would fall. Hamilton explains this in Federalist No. 32 (2nd para):
…the State governments …clearly retain all the rights of sovereignty which they before had, and which were not… EXCLUSIVELY delegated to the United States. This exclusive delegation …of State sovereignty would only exist in three cases… [emphasis in original]
Hamilton then describes the three cases where the Constitution grants to the federal government exclusive authority to act:
(a) Where the Constitution expressly grants an exclusive authority to the federal government; as in Art. I, Sec. 8, next to last clause, which grants to Congress the power to “exercise exclusive Legislation in all Cases whatsoever,” over the District of Columbia, Forts, dock-Yards, and other needful Buildings.
(b) Where it grants an authority to the federal government, and prohibits the States from exercising that same authority; as in Art. I, Sec. 8, clause 1, which authorizes Congress “To lay and collect Taxes, Duties, Imposts and Excises”; and Art. I, Sec. 10, clause 2, which declares that, “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports….”
(c) Where it grants an authority to the federal government, to which a similar authority in the States would be absolutely & totally CONTRADICTORY and REPUGNANT; as in Art. I, Sec. 8, clause 4, which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States.” This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
So! These three are the only cases where the federal government has exclusive authority. In all other matters within the ENUMERATED powers, the federal and State governments have “concurrent jurisdiction”. [Of course, as shown below, the States governments have exclusive jurisdiction over most of the matters within their respective Borders.]
3. Let’s look now at “concurrent jurisdiction” – where the Constitution authorizes the federal government to act and does not prohibit the States from acting on the same matter. Here, the federal government and the States have “a concurrent and coequal authority“ (Federalist No. 32, 3rd para)! Might there be some conflicts when both the federal government and State governments are acting on the same matter? Yes! But as Hamilton pointed out:
It is not …a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can …alienate and extinguish a pre-existing right of sovereignty [in the States]. (4th para)
The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor…[This]is…clearly admitted by the whole tenor of the…proposed Constitution. We there find that, notwith-standing the …grants of …authorities [to the federal government], there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States…[Art. I, Sec. 10] consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the…[proposed Constitution], which…refutes every hypothesis to the contrary. (5th para)
So! Even where the Constitution delegates a power to the federal government, the Sovereign States retain a concurrent and coequal authority over the same matter unless the Constitution specifically prohibits the States from exercising that power.
4. Now let us look at Art. I, Sec. 8, clause 4. This is the clause which some in the “open borders” crowd claim “trumps” the Arizona Law. Well, well! Theirs is a silly argument indeed, and we can dispose of it easily. The clause reads:
The Congress shall have Power … To establish an uniform Rule of Naturalization…
James Madison explains in Federalist No. 42 (4th para from end) the reason for the clause. Under the Articles of Confederation, the various States had their own rules for qualifying for citizenship:
By the laws of several States, certain … aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent…with…citizenship…What would have been the consequence, if such persons…had acquired the character of citizens under the laws of another State, and then asserted their rights as such … within the State proscribing them? … [C]onsequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly … made provision against them …by authorizing the general [federal] government to establish a uniform rule of naturalization throughout the United States.
So! All this clause does is grant to the federal government exclusive authority to set the criteria for citizenship. The only way Arizona could violate Art. I, Sec. 8, clause 4 would be if Arizona made a law which purported to set different criteria for citizenship in Arizona.
5. Now let us look at the Arizona Law. But you must prepare yourself for the shocking facts of this Law! When Arizona officials have made lawful contact with illegal aliens, they are going to turn them over to the custody of the federal government! Yes! Arizona officials actually propose to turn these illegal aliens over to the United States Immigration and Customs Enforcement (ICE) or to the United States Customs and Border Protection.
Other provisions of the Arizona Law address crimes committed by illegal aliens and others within the borders of the State (criminal trespass, human smuggling, impeding traffic while picking up day laborers, harboring & concealing illegal aliens, and knowingly employing illegal aliens). After the illegal aliens have served their sentences, they will be turned over to ICE or US Customs and Border Protection! Shocking, isn’t it?
So, where’s the conflict with the US Constitution? Identify Article, Section, & Clause, if you please! Is anyone so silly as to assert that it violates the U.S. Constitution for officials of the Sovereign State of Arizona to turn illegal aliens over to the federal authorities? Is anyone so silly as to assert that the Sovereign State of Arizona has no criminal jurisdiction over illegal aliens who commit crimes within the Borders of that Sovereign State? When illegal aliens murder, rape, and rob citizens of the Sovereign State of Arizona, does their status as illegal aliens immunize them from responsibility for their crimes? Is it the hysterical predictions that “racial profiling” might occur? Just what is “racial profiling”, and where is that prohibited in the Constitution? And if the Southern Border is being invaded by Mexicans and Muslims from the Middle East, should Arizona officials focus on blue-eyed blonde-haired people who are speaking Norwegian just to show that they don’t notice when someone looks Mexican or Muslim and speaks Spanish or Arabic? Are We a People who have lost our minds? Do we continue to permit political correctness to blind us to Reality? Do we continue to pretend that the naked Emperor is wearing clothes?
Alexander Hamilton shows in Federalist No. 32 (3rd para) the proper questions to ask: Is there anything in the US Constitution which makes the powers asserted by the Sovereign State of Arizona EXCLUSIVE in the federal government? Is there anything in the US Constitution which prohibits the States from exercising the powers which Arizona exercises in her Law? No and No! In fact, Arizona has exclusive jurisdiction over illegal aliens who commit violations of Arizona’s Criminal Laws. And the federal government simply has no authority whatsoever to interfere. And to the extent the federal government does interfere, its actions would not be pursuant to the Constitution, but would be mere usurpations of power and would deserve to be treated as such.
There is nothing in the US Constitution which prohibits Arizona from exercising the powers in her Law. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from Art. I, Sec. 10, last clause:
No State shall …keep Troops…in time of Peace…or engage in War, unless actually invaded…
So! Not only may the Sovereign State of Arizona turn illegal aliens over to the custody of the federal authorities, and not only may that State prosecute illegal aliens for their crimes committed within the Borders of that State, Arizona may also keep troops and engage in War to defend herself from the Invasions. It has been shown before that Art. IV, Sec. 4 requires the federal government to protect each of the States against Invasion. But the federal government refuses to do its duty! The Sovereign States have both a retained and an express authority to do it themselves. They must do it, or be overrun. PH