Madison’s concept of the Supremacy Clause has been twisted to create the very government that Madison and the Founding Fathers fought to prevent taking root. We’ll also take a look at Henry Kissinger’s book The Age of AI and how he twists the meaning of words.
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The “in pursuance thereof” qualification is overlooked or downplayed. The Supremacy Clause 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”. The argument is that federal laws and treaties are only supreme if they are made in accordance with the powers delegated to the federal government by the Constitution. Actions by the federal government that exceed these enumerated powers are not made “in pursuance” of the Constitution and therefore should not be considered the supreme law of the land.
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The current system allows the federal government, through the Supreme Court, to determine the extent of its own authority.
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This contrasts with the founders’ understanding of constitutional supremacy. The Founding Fathers believed that constitutions remained above governments and limited their actions. They explicitly rejected the British system where the government (Parliament) was sovereign and could define the constitution, rather than being limited by it. The American system was intended to have a written constitution that specifically circumscribed the scope of governmental power.
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The concept of a “living, breathing” constitution, interpreted by the Supreme Court, is seen as undermining the fixed nature of the supreme law. Instead of adhering to the original meaning and intent of the written Constitution, the interpretation evolves, allowing for the expansion of federal power without formal amendment. This leads to a situation where the Constitution is no longer a firm check on government power but rather something that can be molded by the government itself, mirroring the British system the founders opposed.
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The Tenth Amendment, which reserves powers not delegated to the federal government to the states or the people, is often seen as being undermined by an expansive interpretation of the Supremacy Clause. If the federal government can broadly define its powers under the guise of the Supremacy Clause, the reserved powers of the states and the people become less meaningful.
In essence, the argument for the misinterpretation of the Supremacy Clause is that it has been applied in a way that grants the federal government a level of authority the Founding Fathers never intended, effectively making the federal government the ultimate arbiter of its own power, rather than being bound by the original, limited grants of authority in the Constitution. This shift is seen as a move towards the kind of unlimited governmental power that the American Revolution was fought against.
In his essay Defense for Fugitive Slaves, Spooner attacks the constitutionality of the The Fugitive Slave Act of 1850 as well as Fugitive Slave Act of 1793, stating that since they are inherently contrary to Natural Law, they are nullified. If there is no Constitutional basis for slavery, then how can laws that compel compliance be followed? In addition, there were other unconstitutional elements of the Fugitive Slave Act of 1850, such as authorization of cases decided wholly on ex parte testimony, and prohibition of a writ of Habeas Corpus for those arrested. If the foundation of the laws are unconstitutional, then the Fugitive Slave Act was not a law at all, and could not be enforced by magistrates and officers.
unconstitutional statute is no law, in the view of the constitution. It is void, and confers no authority on any one; and whoever attempts to execute it, does so at his peril.
Spooner then lays out that to go along with an unconstitutional law until it is repealed, is your silent agreement as though that the law is actually constitutional. By function if that law is enforced and you do nothing, what is the difference? He asserts that it is our right to resist that law from the start, that right is absolute and unqualified.
To say that an unconstitutional law must be obeyed until it is repealed, is saying that an unconstitutional law is just as obligatory as a constitutional one,—for the latter is binding only until it is repealed. There would therefore be no difference at all between a constitutional and an unconstitutional law, in respect to their binding force; and that would be equivalent to abolishing the constitution, and giving to the government unlimited power.
Since our framework of justice is weakened if unjust laws are enforced, the act of resistance is itself constitutional. It makes the Constitution stronger.
The exercise of the right is neither rebellion against the constitution, nor revolution—it is a maintenance of the constitution itself, by keeping the government within the constitution. It is also a defence of the natural rights of the people, against robbers and trespassers, who attempt to set up their own personal authority and power, in opposition to those of the constitution and people, which they were appointed to administer
