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Tenth Amendment Trumps Supremacy Clause


Federalism does not include sacrificing states' sovereignty.


irst, the Tenth Amendment:

The powers not delegated to the United States by the Constitution,

Which are delegated to it? Specifically, to apportion U.S. Representatives and direct taxes, impeach federal officers and try their impeachments, choose congressional officers, govern and judge federal elections, determine and enforce congressional rules, lay and collect taxes, borrow money, regulate non-intrastate commerce, establish uniform naturalization rules and bankruptcy laws, coin money and regulate its as well as foreign currency's values, standardize weights and measures, punish counterfeiting, establish post offices, protect patents and copyrights, constitute lower courts, define and punish piracies, declare war and engage in warfare, raise and support armies, provide and maintain a navy, govern and regulate the armed forces, call forth the militia to not only execute federal laws but suppress insurrections and repel invasions, assist the militia and govern any that have been federalized, exercise exclusive legislation over federal properties, and make all necessary and proper laws for carrying into execution its delegated powers; to grant federal reprieves and pardons other than in impeachment cases, make treaties, appoint federal officers, and commission U.S. military officers; to try federal cases, hear their appeals, and punish traitors; to prescribe how states prove each other's official acts, admit new states, and dispose of federal properties; to propose constitutional amendments; and to enforce the prohibition against slavery and the constitutional protections of U.S. citizens' and legal residents' rights.

nor prohibited by it to the States,

Which powers are prohibited to them? Specifically, to enter into any treaty, alliance or confederation, engage in war unless actually invaded or in imminent danger, coin money, emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, pass any bill of attainder or ex post facto or contract-impairing laws, grant any title of nobility, and, without Congress' consent, lay any non-inspection related imposts or duties on imports or exports or any duty of tonnage, keep troops or warships in peacetime, or enter into any agreement or compact with another state or a foreign power; and to make or enforce any law abridging the privileges or immunities of citizens of the United States, deprive any person of his rights without due process of law, deny to any person within its jurisdiction the equal protection of the law, assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States or any claim for the loss or emancipation of any slave, and deny or abridge U.S. citizens' voting rights.

are reserved to the States respectively,

All other powers are exercisable only by each sovereign state.

or to the people.

If their state is not exercising a reserved power, the people may exercise it.

Now the Constitution's Supremacy Clause and its subsequent Binding Clause:

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....

The states, having acted to create a constitution that impartially serves them all, naturally support the national government. Even so, they reserve the power to either alter or abolish and replace it. The states, not any of the three federal branches, have ultimately the final say on not just the extent of the latter's powers but their very existence. Thus the Constitution remains the supreme law of the land solely at the states' sovereign pleasure.

Governments, regardless their level, have neither infinite nor absolute powers. Limits must be placed on each if the people it serves are to retain their rights and freedoms. This is a principle obviously lost on those seeking to have the courts construe the Constitution in a way that allows them to supplant the reserved powers of the states or people with the federal government's unchecked will. The word we use to most clearly describe any of the ønes who seek it, of course, is tyrant, despot, totalitarian, dictator, or any of the other modern synonyms for liberal.

The Tenth Amendment's ratification came after the Supremacy Clause's. Also, the former's affect on federal powers is more specific than the latter's. Clearly, the principle the Tenth Amendment embodies, that the states retain substantial sovereign powers under our constitutional scheme, powers whose source is entirely independent of the Constitution, is meant to limit the extent of federal powers and, it follows, the cases in which the Constitution may be held "the supreme law of the land."

Indeed, Thomas Jeffereson considered "the foundation of the Constitution as laid on this ground.... To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."

It stands to reason, then, that the Constitution, by so prohibiting itself from having any affect on the states' exercise of their reserved powers, may never be legitimately cited when claiming one or more exceptions to that absolute prohibition.

The power of a state to internally enforce existing federal laws has not been delegated to the United States by the Constitution. Labor, environmental, antitrust, and other civil and criminal statutes made in pursuance of the Constitution all inherently contain components of state enforcement. The United States, outside its seat of government and the territories and other property belonging to it, exists concurrently with the states. But it cannot exist without the states. Moreover, the states will continue to exist whether or not the United States does. Not only is its existence dependent on the states, so is that of all of its laws as well as all treaties made under its authority.

States form the basis of their people's representation in Congress and of every president's election: the people of each are entitled to choose two senators and at least one representative, the same number its legislature appoints as electors who are entitled to choose the president. Congress, in turn, by sufficient votes of both houses, has power to make laws with or even without the president's approval; while the president, with sufficient consent of the Senate, appoints all civil officers of the United States and makes treaties.

However, if the states did nothing to prescribe the times, places, and manner of holding elections for senators and representatives, and their legislatures did nothing to direct the appointments of presidential electors, not even "the aid of the violent and perilous expedients of compulsion," as Alexander Hamilton puts it in Federalist paper No. 27, would be sufficient to ensure that any senator, representative, or president is ever chosen again, much less in a position to make or enforce laws or treaties. On the other hand,

It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws.

Id. States are rendered more than merely auxiliary to the enforcement of federal laws. They are vital to it.

If it is officially held that states have no power to internally enforce an existing federal law, or are else free to ignore it, that law is essentially no longer in effect within their borders. To all intents and purposes, its existence ends there. Their legislatures, courts, and magistrates, unwittingly or intentionally, cease to be meaningfully bound by their oath to positively support the Constitution. The president, having sworn that he will faithfully execute his office, which includes taking care that this and every federal law be faithfully executed, must either go it alone or willfully violate his own oath. Except, in the former case, he would require the aid of far more expedients of compulsion than the Constitution permits him in order to enforce the law. Either way, the long established republican form of government to which the people are accustomed would disappear, only to be replaced by lawless tyranny.

Fortunately, Congress has always recognized this vital role states play in the enforcement of the laws it makes. According to the Congressional Research Service,

Beginning in the Nation's early years, Congress has enacted hundreds of statutes that contained provisions authorizing state officers to enforce and execute federal laws. Challenges to the practice have been uniformly rejected. While the [Supreme] Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the propriety of authorizing them to act if they chose.

In addition, James Madison, popularly known as the Father of the Constitution, explained that "the Establishment of this Constitution between the States" — that is, between the minimum nine whose "Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification," regardless whether any of the four remaining states might choose to be included also — envisions a compact between the people of each, rather than all of those states.

Who are the parties to it? The people — but not the people as composing one great body — but the people as composing thirteen sovereignties.

Even the existence of the Constitution itself is dependent on the states. Not simply the laws and treaties the Congress and president make.

Regarding the limited sphere of powers delegated to the United States by such compact between the people of each state, they naturally would desire that every person bound by oath to support that compact do everything he publicly can to prevent, oppose, and correct any effort he officially believes undermines whatever power the Congress, president, or a court has exercised within that sphere.

If somehow the Constitution prohibits him from performing so faithfully this most basic of his sworn duties, then why did the people of each state require he take such an oath? Are they demanding he stand idly by while a constitutionally exercised power is undermined? or at least do so if it is a Congress, administration, or court that has led the effort to undermine it? If the last is true, had they really meant the Supremacy Clause necessarily and properly refers not to the Constitution but to any action or inaction of a branch of the federal government, regardless whether the same be in support or hindrance of it?

How stands "a government of laws, and not of men" under that alleged constitutional scheme?

The answer is it cannot. Not while we have a Constitution that plainly opposes the least denigration of any state's reserved powers but receives in this matter other than full and due support.


"Tenth Amendment," 'Lectric Law Library, 2010.

Volume 4, Article 6, Clause 3, Document 10 and Article 7, Document 2, The Founders' Constitution, University of Chicago Press, 2000, republication of Max Farrand, editor, The Records of the Federal Convention of 1787, revised edition (4 volumes), New Haven CT: Yale University Press, 1937.

John Adams, Novanglus "To the Inhabitants of the Colony of Massachusetts Bay," Essay No. 7, March 6, 1775, @ Democratic Thinker.

M. Stanton Evans, "The States and the Constitution," Intercollegiate Review 2:3, November-December 1965, @ firstprinciplesjournal.com (Intercollegiate Studies Institute).

Johnny H. Killian, George A. Costello and Kenneth R. Thomas, editors, The Constitution of the United States of America including analysis and interpretation of the Constitution with annotations of cases decided by the Supreme Court of the United States through June 29, 2004, Congressional Research Service, Library of Congress, 2004, @ Justia.com US Supreme Court Center.

Kris W. Kobach, "State and Local Authority to Enforce Immigration Law: A Unified Approach for Stopping Terrorists," Center for Immigration Studies, June 2004.

Chuck Norris, "Obama vs. the 10th Amendment," WorldNetDaily.com, March 1, 2010.

Charles C. Tansill, editor, "Resolution of the Federal Convention Submitting the Constitution to Congress, September 17, 1787," Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, Washington DC: Government Printing Office, 1927, @ Lillian Goldman Law Library, Yale Law School.

Abel P. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government: Being a Review of Judge Story's Commentaries on the Constitution of the United States, New York: Van Evrie, Horton & Co., 1868, @ constitution.org (Constitution Society).

Thomas E. Woods, "The States' Rights Tradition Nobody Knows," LewRockwell.com, 2005, @ Tenth Amendment Center.

Doctor Zero, "A nation of laws, not of men," Hot Air, July 30, 2009.

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