Professor Tom Woods Delivers a Smack Down to Critics of Montana Nullification Bills | February 28th, 2011
In the above video, Tom Woods discusses the Associated Press article, “Tea Party Vision for Montana Raising Concerns.” (http://www.msnbc.msn.com/id/41768730/ns/politics-more_politics/)
Tom Woods notes that “People in Montana have adopted unconventional views about how to reverse federal encroachments. We are supposed to be concerned about this, instead of about the encroachments themselves.” His critique of the Associated Press article is both humorous and informative.
And here is the excellent article on the history of the Supremacy Clause and how it relates to “nullification” that Tom Woods references in his video. This article is highly recommended reading for anyone to understand the nature of the compact and what the division of powers was supposed to be between the states and the national government:
Who’s Supreme? The Supremacy Clause Smackdown
by Brion McClanahan
When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.
In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.” Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.
Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-à-vis the States.
The so-called “supremacy clause” of the Constitution, found in Article 6, 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”
The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.
A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.
The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent…” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union….” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states…” through such language.
Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.
