Temecula Constitution Study with Douglas V. Gibbs, January 27, 2011
Article VI, VII
Article VI, Clause 1. Validity of Prior Debts and Engagements. All prior debts and engagements, even though they were incurred under the Articles of Confederation, are transferred to the new government under the U.S. Constitution as per this clause.
Article VI, Clause 2. The Supremacy Clause. Perhaps one of the most misunderstood and misapplied clauses of the U.S. Constitution. Many believe this clause states that all federal laws supersede all State laws, and that is simply not true. To understand the true meaning of this clause, one must pay close attention to the language used.
John Marshall, the fourth Chief Justice of the United States (the justice that also wrote an opinion seizing the power of Judicial Review for the courts - Marbury v. Madison, 1803) wrote that there is a priority of national claims over state claims in his opinion regarding McCulloch v. Maryland, 1805, which upheld an act of 1792 asserting for the United States a priority of its claims over those of the States against a debtor in bankruptcy. With subsequent opinions, Marshall, Joseph Story, and many courts since, have fostered the belief that the federal courts, and laws, have total supremacy over all state courts and laws. However, this concept contradicts the 10th Amendment, which specifically states that powers not delegated to the federal government, nor prohibited to the States, belong to the States.
What this means is that not all federal laws are supreme over State laws, and the federal courts are not supreme over state courts when it comes to issues that fall under the sole authority of the States.
If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a state, or city, passes a law that contradicts that constitutional federal law, the federal government’s law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.
An example of the federal government acting upon the assumption that all federal law is supreme over State law is the medical marijuana laws in California. Though I do not agree with the legalization of marijuana, even for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.
California passed a law legalizing marijuana for medicinal purposes, but federal law has marijuana as being illegal in all applications. Therefore, using the authority of the federal government based on the Supremacy Clause, federal agents (or at least until recently) have been raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government, therefore the raids on medical Marijuana labs in California are unconstitutional actions by the federal government.
The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.
"Contrary" is a key word in the Article VI, Section 2.
Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that state laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, in the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.
In the case of Arizona’s immigration law, the argument by the federal government that Arizona’s law is contrary to federal law is a bad argument. Assuming, for just a moment, that the federal government has complete authority over immigration (which is not true since immigration is one of those issues in which the federal government and the States have concurrent jurisdiction), Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law is similar to federal law. However, if Arizona was to follow the federal government's recommendation, and truly pass a law completely in line with federal law, Arizona would remove its text that disallows racial profiling because the federal law does not contain such protections, which is actually the only way the law is contrary to federal law.
The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . in pursuance of what? Of the Constitution.
The language is simple. The conclusion is easy. The truth is obvious.
Article VI, Clause 3. This clause indicates that all elected officials are bound to support the Constitution by oath or affirmation. An oath is to God, and an affirmation is not a sworn oath to God. This was offered because the Founding Fathers recognized that not everyone believed in God, and that there were some religions that believed swearing to God to be a sin. This clause also states that there shall be no religious test to serve. This was not the case in all of the states. For example, the Danbury Baptists in Connecticut appealed to President Jefferson because they felt they were being mistreated by the Puritans, who were the dominant religion in that state. Jefferson replied that the federal government could not help them. It was a State issue. But we will have more on that next week when we discuss the 1st Amendment.
To ratify the Constitution, the Founding Fathers determined it should be at least nine states. This meant that both northern and southern states would be needed to ratify the Constitution. The number “9”, of 13, represented 2/3 of the total states at the time.
When reviewing the list of signers of the Constitution, one may notice that Rhode Island was not present, and only Alexander Hamilton signed for New York. The anti-federalists feared a federal government, afraid that the system could become centralized, and ultimately tyrannical. Such a system would infringe upon States’ Rights, and the sovereignty of the States was a very important aspect of the new nation. The federal government was only supposed to protect and preserve the union, and nothing more.
The New York anti-federalists were so angry over the proceedings that they all got up and walked out, leaving Hamilton alone. Later, in the hopes of convincing the anti-federalists in New York to support the new Constitution, the 85 Federalist Papers were written by James Madison, Alexander Hamilton, and John Jay.
Because of the Supremacy Clause, not only is it assumed by many that the federal government’s laws are all supreme, but that the federal government has implied powers. Below is an explanation regarding the difference between expressed and implied powers.
Implied v. Expressed Powers
By Douglas V. Gibbs
When one studies the United States Constitution, and also studies the various opinions regarding the U.S. Constitution, one discovers the existence of two schools of thought when it comes to the authorities of the federal government. One contends that all federal powers are expressly given, or enumerated, by the U.S. Constitution (primarily in Article I, Clause 8, and all subsequent Amendments). The second school of thought recognizes two different types of powers in the Constitution: Expressed powers and implied powers.
Expressed powers include the power to tax, maintain a military, coin money, establish post roads and post offices, and to establish uniform rules of naturalization.
Those that do not agree with the strict constructionist view of the U.S. Constitution will argue that there are more powers granted to Congress that you can find within the body of the Constitution and its amendments. These are implied powers, which means that there are powers beyond those enumerated that are given to Congress so that they can write laws to make sure what needs to happen happens. In other words, those that believe in the existence of implied powers argue that such powers add to Congress's expressed powers.
Implied powers, according to those that support this concept, relate specifically to the Legislative Branch, but actually all branches have some form of implied powers.
The Constitutional argument used to support their belief in the existence of implied powers is in Article I, Section 8, Clause 18, also known as the "necessary and proper clause." The clause reads: To make all law which shall be necessary and proper to carrying into execution the foregoing powers, and all other powers vested in this Constitution in the government of the United States, or in any department or officer thereof.
The language of this clause, however, actually denies the existence of implied powers, for the clause specifically states that the laws necessary and proper must be passed in order to carry into execution the foregoing powers, and all other powers vested in this Constitution.
Foregoing powers means the powers expressly granted preceding this clause. All other powers vested in this Constitution means any other powers granted by amendment.
Also notice the word "vested." Vested means "legally transferred." If the powers are legally transferred, they must be transferred from someplace. If you read Article I, Section 1 and the Tenth Amendment, it becomes apparent that the original possessors of the powers granted to the federal government is the States, therefore the laws must be in accordance with those powers granted, and any new powers must be obtained through the amendment process (Article V) which does not reach fruition until the States ratify the request with a vote of 3/4 of the States.
So, any laws passed by the federal government must be in line with their authorities from the Constitution itself, which means they cannot possess any implied powers that do not find their foundations in the express powers granted.
Those that support the concept of implied powers will also argue that Article I, Section 7 of the Constitution grants the concept of implied powers as they relate to committees, subcommittees, conference committees, limits on debate, how a law will be introduced, or any other details. The assumption is that those procedures were created out of the implied power of Congress. However, the ability for the Houses of Congress to make their own rules is not an implied power, but a specific enumerated power provided for in Article I, Section 5, Clause 2, where it establishes Congress's allowance to make their own rules of operation.
Another assumption of an implied power is the power of the military draft. Those that support the concept of implied powers will tell you that the military draft is an implied power of Congress to raise and maintain an Army and Navy. However, there is no place in the Constitution that actually allows for a military draft, so as a strict constructionist, it is apparent to me that the military draft is actually an unconstitutional action.
Thomas J. DiLorenzo, in his book "Hamilton's Curse," explains that implied powers were an invention of Alexander Hamilton, a federalist that believed in a more centralized governmental system. DiLorenzo wrote:
Hamilton also invented the myth that the Constitution somehow grants the federal government "implied powers." "Implied powers" are powers that are not actually in the Constitution but the statists like Hamilton wish were there. As Rossiter pointed out, "One finds elaborations of this doctrine throughout his writings as Secretary of the Treasury." The most notable articulation of this idea can be found in Hamilton's Opinion on the Constitutionality of the Bank of the United States. He wrote this report in 1791, while serving as treasury secretary. President Washington had asked both Hamilton and Jefferson for their opinions on the subject. In his opinion, Hamilton wrote that "there are implied, as well as express powers [in the Constitution], and that the former are as effectually delegated as the latter" . . . He added, "Implied powers are to be considered as delegated [to the federal government] equally with express ones." A nationalized bank, he went on to argue, was one of those implied powers.
Jefferson vehemently disagreed, arguing that the express powers delegated to the federal government in Article I, Section 8, of the Constitution (providing for the national defense, coining of money, etc.) were expressly stated because they were the only powers delegated to the federal government by the sovereign states that ratified the Constitution. Any new powers, Jefferson believed, could be delegated only by a constitutional amendment. He realized that such a doctrine as "implied powers" would essentially render the Constitution useless as a tool for limiting government if the limits of government were simply left up to the imaginations of ambitious politicians like Hamilton. . . the shock troops of the Federalist Party - federally appointed judges - would use Hamilton's arguments to essentially rewrite history and the Constitution. Thus was "liberal judicial activism" born.
. . . George Washington had condemned the notion of a "living constitution" in his Farewell Address (which, oddly enough, is said to have been at least partly ghostwritten by Hamilton). In that address President Washington said, "If in the opinion of the People, the distribution of modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation . . . the customary weapon by which free governments are destroyed." Hamilton's theory of implied powers ignored this warning, laying the template for generations of lawyers who would use the courts, rather than the formal amendment process, to essentially render the constitutional constraints on government null and void.
Not only were there supposedly "implied" powers in the Constitution that only the wise and lawyerly like Hamilton recognized (but that were foreign to James Madison, who like Jefferson was a strict constructionist) . . . unconstitutional powers would magically become constitutional, in Hamilton's opinion. Taken to logical ends, this argument implies that any action of the government would be de facto "constitutional" by virtue of the fact that the action occurred. This is how Hamilton viewed the Constitution - as a potential blank check for unlimited powers of government. (Thomas J. DiLorenzo, Hamilton's Curse, New York: Three Rivers Press, 2008, pages 26-29.)
Thank you to Faith Armory for the use of the Classroom at 27498 Enterprise Cir. W., #2, Temecula, CA.