At some point in a political conversation, I am usually reminded that the U.S. Constitution is the supreme Law of the Land. This sentiment is usually expressed either in support of a U.S. Supreme Court decision in the debaters favor, or in frustration that we are bound by a U.S. Supreme Court decision not in the debaters favor.
Let’s put the “supreme Law of the land” in context. The complete statement is found in Article VI:
“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.”
Some basic observations:
- Only the U.S. Constitution, and laws “made in Pursuance thereof”, are the supreme Law of the Land. Put another way, only laws that are in line with, or in conformity with the U.S. Constitution as written can be considered the supreme Law of the Land.
- This means that laws made in conflict with the U.S. Constitution are not part of the supreme Law of the Land.
- This only applies to laws passed by Congress (who else would pass laws?). Not executive branch regulations, and not Supreme Court decisions (more on this in a later post).
- Amendments to the U.S. Constitution are not laws “made in Pursuance thereof”, they are part of the constitution itself.
Hamilton, in Federalist No. 33 writes,
“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.” (bold emphasis added)
Additionally, Hamilton writes in Federalist No. 78,
“There is no position which depends on clearer principles, than that 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.”
Every time Congress creates law not pursuant to it’s constitutional powers, it has affirmed to us, their electors, that they believe themselves to be our masters, and superior to us.
The only guard possible against continued violation of granted powers is to:
- Elect representatives (and presidents ,and judges) who agree to support the U.S. Constitution, as ratified,
- Educate our family, friends and neighbors as to the meaning of the U.S. Constitution and its appropriate application
- Do NOT re-elect representatives who violate their oath of office. Period. Write them and tell them why you won’t vote for them.
As an example, “Obamacare” has no basis in the granted powers in the U.S. Constitution (more on this in a later post). We need to elect representatives who will refuse to vote for a bill on the notion that “we have to pass the bill so that you can find out what is in it.” How can representatives elected to uphold the U.S. Constitution vote for a bill without knowing if it violates their primary oath upon taking office? A larger problem exists where representatives don’t feel bound by the U.S. Constitution, or justify their actions on Supreme Court decisions that they haven’t even read.
Regardless of whether you support a national heath care system or not, such a system needs to follow the amendment process outlined in Article V of the U.S. Constitution in order to be made into law.
When we allow our representatives to make law via usurpation of power, we have only ourselves to blame for the tyranny that ensues.