Most colleges in the United States teach students about the Supremacy Clause. This references the second clause of Article VI of the United States Constitution. Article VI is composed of 3 clauses which read;
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
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.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The first clause was a reassurance to the rest of the world the new government being formed under the Constitution intended to fully honor the debts owed while organized under the Confederation. It was not uncommon for countries to consider their debts null and void simply by restructuring their government under new operating guidelines or people. The framers had no desire to renege on debts owed so, although this has little meaning for us today, it was a very important clause for those involved in foreign affairs including Thomas Jefferson and John Adams, each serving oversees as representatives of their new country.
Found within the third clause is a requirement for taking an oath or affirmation to support the Constitution, although it was not meant to be a religious test. Today’s politicians and civil servants who take an oath do so in mostly a perfunctory manner. There are many who have taken an Oath of Office who do take it seriously yet amongst the modern day politicians it is hard to find many who truly are concerned about the oath since we the people fail to hold them accountable if they defy their oath.
Framers and founders understood the oath to be extremely serious. It was a promise to not only their fellow man but to whatever form their God happened to be, which is why the clarification about a religious test was necessary. Anyone taking an oath in a perfunctory manner was considered to be committing perjury, a very serious situation which easily could lead to impeachment or removal from their job. Lets take a quick look at the definition of oath from the 1828 American Dictionary of the English Language;
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required bylaw; that I will perform work of national importance under civilian direction when required by law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. In acknowledgment whereof I have hereunto affixed my signature. (Emphasis added)
Each time the oath is given, each time a person swears to support our federalist republic as prescribed within the Constitution it should be an extremely humbling and honorable event. It is so special framers insured it was a part of every public servants agreement with those who were entrusting them with their voice. After all, within the second clause we see the supreme law of the land is not a man but a written agreement among men or what W. Cleon Skousen refers to as People’s Law in his work, The 5000 Year Leap.
The object of the Founders was to discover the ”balanced center” between these two extremes (tyranny and anarchy). They recognized that under the chaotic confusion of anarchy there is “no law,” whereas at the other extreme the law is totally dominated by the ruling power and is therefore “Ruler’s Law.” What they wanted was a system of “People’s Law,” where the government is kept under the control of the people and political power is maintained at the balanced center with enough government to maintain security, justice and good order, but not enough government to abuse the people. (p. 10)
For this new system to work supremacy would have to be established in each level of governing duty. At the federal level the Constitution and the Laws of the United States were declared supreme over states, counties, wards, and individual people. This is pretty much the way it is taught, it may well sound familiar to those who recently completed a civics class. Not only was it critical for maintaining the balanced center between tyranny and anarchy, it was so critical nearly every citizen would raise their hand and swear an oath to defend it against foreign foes and domestic foes. However, the title of this article is state nullification trumps federal supremacy. How can that be?
States and people are not subservient to the federal government. After the Constitutional Convention members (the framers) completed their efforts on Sept. 17th, 1787 there was a long ratification process. The proposed Constitution was sent to the states and people debated across the United States over whether they would accept this as supreme when laws were made in Pursuance thereof. If laws are not made based on the enumerated guidance of our Constitution nullification by the states and people is not only a trump card, it is a sworn duty secured clearly within the 10th Amendment of the Bill of Rights and within every Oath of Office including the office of citizen.
While teaching the Supremacy Clause most civic teachers do not emphasize this portion yet the framers used a capital letter to show how important Pursuance is to maintaining the balance of People’s Law. As long as the federal laws are following the enumerated process of the Constitution it is supreme and states, as well as the people, will honor those laws as supreme. However, any laws not following the process found in the Constitution are not supreme.
It is up to every branch of government to check all other branches to insure federal laws are not unconstitutional while the federal government also helps insure states are operating within their responsible areas as republics. Some professors want to teach the notion only the three federal branches check each other and the Supreme Court is the supreme word on the constitutionality of both federal and state laws.
However, in a true federalist republic it would be foolish, as well as dangerous, to consider the federal branches as the supremebranches that make a determination on whether their laws will be master of states, counties, wards, and individuals. Our framers and founders understood the danger of a purely horizontal check on legislation. This would result in an oligarchy which is closer to Ruler’s Law, or tyranny, than People’s Law, or liberty. During the Virginia Ratification Debates, on June 7th, 1788, Francis Corbin stated it clearly when he said;
The extent of the United States cannot render this government oppressive. The powers of the general government are only of a general nature, and their object is to protect, defend, and strengthen the United States; but the internal administration of government is left to the state legislatures, who exclusively retain such powers as will give the states the advantages of small republics, without the danger commonly attendant on the weakness of such governments.
There is a vertical check as well as horizontal checks. The state legislature and governors are bound by their oath to defend the Constitution through a vertical check which insures the general government is performing their duties while leaving the states responsible for their duties. Should the federal and state legislatures’ checks fail in their duty the people themselves must defend the Constitution. Federalism strengthens small republics while taking advantage of democracy at the local, community level as well as through the voice of the people represented in the general and state legislatures.
State nullification trumps any federal law determined to be beyond constitutional processes. When a state determines a federal law is unconstitutional and they pass legislation making the federal law null and void within their state it is not rebellion. It is not defiance of some supreme federal overlord. It is a matter of upholding a solemn oath, which is why the oath is also a part of Article VI. This is true whether your civics teacher taught it this way or not. The only thing you must ask yourself is will you uphold your oath and will you support your state when the legislators and governor uphold theirs?
Gary Wood is the Educational Advisor for the Utah Tenth Amendment Center. Co-founder of the Heritage Training Center, focused on helping end constitutional illiteracy. With 35 years of devoted study of our Constitution his desire is to help others rediscover the inspiring heritage of the United States. Radio show host, training officer, lifetime member of the VFW and most importantly Grandpa.
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