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Supremacy of the Tenth

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There’s been a small debate going on in the Pennsylvania legislature, one that should be larger, louder, and receiving much more publicity. It’s a debate between proponents of the Tenth Amendment and advocates of the Supremacy Clause of the Constitution.

At issue is a proposed amendment to resolution H.R. 49. The resolution claims that the state has sovereignty under the Tenth Amendment over certain powers of the federal government. It also includes a clause stating that “many Federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States.”

The proposed change to H.R. 49 would strike that clause from the resolution.

Those supporting the change cite the Supremacy Clause in Article VI, Section 2 of the Constitution: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.”

Those arguing for the overriding importance of the Supremacy Clause claim that it means federal laws trump all state and local laws. However, there are at least two arguments against that reasoning.

1. In his article, “When Are Federal Laws Supreme?” Steve Palmer of the Pennsylvania Tenth Amendment Center argues that the Supremacy Clause holds true only when laws are made “in pursuance” of the Constitution.

“A constitutional law,” Palmer writes, “is one that is made in pursuance of the Constitution. A law which is not made in pursuance of the Constitution violates the Tenth Amendment. It’s that simple.”

It can also be said that a law not made in pursuance of the Constitution violates the Constitution itself, not just the Tenth Amendment. For instance, there is nothing in the body of the Constitution that allows Congress to pass laws prohibiting people from ingesting certain substances or forcing them to buy certain products or services. Such laws violate the constitution itself.

No law, regardless of how good its intention, can legally override the Constitution. Only amendments can do that, which leads to the next argument.

2. The Tenth Amendment, like all the other amendments, acts as a filter or modifier for points made in the body of the Constitution. Consider,

  • The Constitution allowed for slavery until that wretched institution was outlawed by the Thirteenth Amendment.
  • The body of the Constitution says U.S. senators are to be elected by their various state legislatures — giving states more say in the federal process — but the Seventeenth Amendment changed that to a direct election by the people.
  • There is nothing in the Constitution granting Congress the right to prohibit alcohol, but that, too, was changed by amendment. Another amendment repealed that one and re-legalized alcohol sales and use.
  • Income taxes were ruled unconstitutional in 1895. But in 1913 they became constitutional with the passage of the Sixteenth Amendment.

For better or worse, amendments override points in the body of the Constitution. They modify and filter them. That’s why the amendment procedure was incorporated into the Constitution: to provide a means for change.

So, it may be argued that the Tenth Amendment modifies the Supremacy Clause. Recall that the Bill of Rights, the first ten amendments, were put forward to eliminate any fears that the federal government would become a domineering force that would take away powers or liberties from the states or the people. The Tenth Amendment says as much:

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.

It doesn’t say the feds are supreme. They’re not. Left unchecked and unmodified, the Supremacy Clause is destructive to the Republic. Blanket supremacy destroys the proper relationship between the federal government, the states, and the people.

The Tenth is not just about states’ rights and the relationship between the federal government and the states. It’s about preserving the power of the people as well.

In a free society, the people may do anything not prohibited, while the government may do only those things that are permitted. Under the intended structure of the United States, the Constitution establishes what the federal government may do. While those federal laws may be supreme, they are only so if they are in accord with the Constitution, including the Tenth Amendment.

If each state were to advocate for the Tenth, we could have what former New Mexico Gov. Gary Johnson refers to as “50 laboratories of innovation.” That’s far better than a top-down, one-size-fits-all policy for every controversial issue that comes along.

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    Rich Schwartzman is managing editor at Chadds Ford Live in Chadds Ford, Pennsylvania.