“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.”. ~ Article 6, Clause 2, U.S. Constitution
Did you know that the Constitution is a document of government permissions, not a document of government exceptions? In other words, it provides a list of the powers and authorities that each branch of government is permitted to have; anything that falls outside of these lists are, according to the 10th amendment, is left to the states or to the people. Now I understand that some folks feel that federal laws are supreme and always trump state laws, however that is not entirely true. They only trump state laws if they were made in pursuit of the powers allowed to them under the Constitution. So if a branch of our government takes on powers not specifically listed as under their authority in the Constitution, any law that supports those powers should be considered void.
Unfortunately, our country has drifted far away from those original specific powers granted to each branch under the Constitution. All three branches have blurred the lines on what they are allowed to do. We no longer have one branch of government that makes the law – we now have three, as both the executive and judicial branches are now ignoring the plain words of the Constitution, and making up new law contrary to the intentions of the legislative branch. Take for instance our discussion last week regarding Cliven Bundy. Did you know that there are only two places that mention federal ownership of land or property in the Constitution? The first appears in Article 1 Section 8, when it mentions the creation of the national capitol and military installations, and is the only place in that document where the specific ceding, owning and maintenance of land were made to the federal government. The second appears in Article 4, Section 3, when it talks about Congress creating the rules and regulations regarding the disposition of government property (notice it says disposing of, not permanent owning). In both of these instances, the powers they outlined fall squarely under legislative authority alone. These were specifically listed as one of their powers in the Constitution, and therefore cannot be given to any other branch by either executive order, court ruling or even by an act of Congress itself. Although it is ignored all the time, technically the only way we are allowed to change what the Constitution says is by the amendment process.
So in the case of the Bundy Ranch, if the federal courts were following the Constitution, they would never have ruled in favor of the federal government regarding the disposition of public land or his permitted grazing rights. They would have found that since the rules governing that land were made by the executive branch instead of the legislative, they run contrary to the Constitution and were therefore void. If void, then all new rules would fall under the authority of the state, unless Congress acts. Supremacy only applies if the law or regulation followed by the feds was done from the correct branch and under their allowable authority, which in this case it was not. So, if a law grants, supports or otherwise pursues powers not authorized for that particular entity within the Constitution, the law itself is unconstitutional, no matter what the President, Congress, or the courts may decide.
I know the idea of actually following the Constitution seems quaint, if not downright foolish, as we have allowed so many unconstitutional laws and regulations to go unchallenged for so long. Nevertheless, I take my oath of office quite seriously. I did not swear an oath to the federal government or to legal precedent; I swore an oath to the Constitution. We either believe in the authority of the Constitution or we do not. If we do not, then it becomes nothing more than just a piece of paper, and our oath made on shifting sand, being forever bound to the muddled interpretations of its words by a fickle and changing majority, instead of what the words themselves actually say. Isn’t that kind of crazy?
“How strangely the tools of a tyrant pervert the plain meaning of words!” ~ Samuel Adams (1722-1803)