Recently I was involved in an email exchange with a legislative attorney about the division of powers we have in our country under federalism. In her first email she flat out stated that a proposed state law was unconstitutional because it disagreed with federal law. Hence this column is written to give a better understanding of the limits placed on the federal authority by Amendment Ten of the US Constitution.
The federal government was created by the states to do things that were deemed better done by a central authority than by the 13 states then existing. The states had been operating under the Articles of Confederacy between the Revolutionary War and the adoption of our current federal system in 1789. The Constitution was written as a contract between the states and the new federal authority vesting in the federal authority certain specifically designated responsibilities. The list of these responsibilities can be found in Article I, Section VIII. Some examples are the power to coin money, to provide for an army and navy, to regulate commerce with foreign nations and between the states, and the power to levy the taxes needed to pay for these things. A few powers, dos and don’ts, are listed elsewhere in the Constitution.
To allow the new Federal Government the ability to carry out its responsibilities the states wrote the Supremacy Clause into Article VI. This gave superior status to federal laws over state laws when the federal laws are made in pursuance of the Constitution. The states reserved to themselves, and to the people, all the powers not discussed in the Constitution by adding the Tenth Amendment.
Of course many occasions come to pass wherein a state law seems to be in conflict with a federal one. The federal courts have the job of sorting this out. Does the federal law have superiority under the supremacy clause or does state law prevail under the Tenth Amendment? Most of these disputes, (perhaps 90 percent), are argued under the power of the federal government to regulate interstate commerce. There are numerous Supreme Court opinions where the federal government has had to demonstrate to the court’s satisfaction that their law was in fact made in pursuance of their power to regulate interstate commerce.
The Constitution did not specifically prohibit the U.S. Congress from legislating in areas outside the responsibilities given to them by the Constitution. Lots of popular laws and programs such as social security, Medicare, the Americans with Disabilities Act, the federal laws relating to illegal drugs, and so on and have been put into place without any reference to Constitutionally designated federal powers. This doesn’t, in and of itself, make such acts unconstitutional. It does mean they should not have the protection of the supremacy clause if states decide they do not wish to follow the federal guide lines. Despite this basic fact of Constitutional law the public seems to feel that “federal law is superior to state law.”
The federal government has become a fat overbearing monstrosity enriched by the power of the income tax, the social security taxes, and by its ability to run endless deficits. Congress and presidents alike have shown disregard and often scorn for the constitutional limits placed on them. Federal prosecution of medical marijuana patients in California against the expressed will of the voters of that state is little better than criminal activity on the part of the Federal Government. Where court decisions are against them the Feds use tax money to try and bribe state and local governments into doing things their way, often to the detriment of the public.
Libertarians believe in constitutionally limited government, and in the intelligent distribution of responsibilities between state, federal, and local government the founders of our country envisioned for us. Isn’t it time Republicans and Democrats believed in those things too?
”’Tracy Ryan, chair of the Libertarian Party of Hawaii, can be reached by email at:”’ mailto:firstname.lastname@example.org
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