https://tenthamendmentcenter.com/2010/03/29/whos-supreme-the-supremacy-clause-smackdown/
The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.
Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct...
The so-called “supremacy clause” of the Constitution, found in Article 6, states, “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 [emphasis added].”
The key, of course, is the italicized phrase.
All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding.
In other words, the federal government was supreme in all items clearly listed in the document.
A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.
The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union.”
When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote).
Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.”
Since the negative did not pass, such a definition was unnecessary.
Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.
Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles.
If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”
Furthermore, in a foreshadowing of nullification, Iredell argued that, “It appears to me merely a general clause, the amount of which is that, when they [Congress] pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not [emphasis added].
Other ratifying conventions had similar debates, and proponents of the Constitution continually reassured wavering supporters that the Constitution would only be supreme within its delegated authority.
Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution.
These ultimately became the Tenth Amendment to the Constitution, which reads, “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.”
Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.”
If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.
Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare.
Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly.
In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”
The original intent of both the “supremacy clause” and the Tenth Amendment indicate that Idaho and the other States challenging Obamacare are justified and correct and that
the legal profession is either in the tank for the federal government or has not read either the debates of the Constitutional Convention and/or the State ratifying debates.
This should make people like Engstrom and Siegel, rather than legitimate State law directed at unconstitutional authority, irrelevant.
