Research, Rabbit-Holes and the Supremacy Clause

Tonight I finally sat down to research the candidates for my area in tomorrow's election. This may seem irresponsible, but when contrasted with those who don't vote or, even worse, just check a party-line ticket, I'm downright admirable.

First up on my list is the governor's race. As is to be expected, none of the candidates matches what I want exactly. They are unfortunately in agreement over drilling the Marcellus Shale in western PA. I don't dislike the drilling out of some namby-pamby look-but-don't-touch environmentalism, but I've seen enough of the documentary Gasland to know that the drilling companies are poisoning people and no one in government seems to care.

That's not even what this post is about, but it just shows you the nature of the Internet: you start out looking up something specific, but every page has hyperlinks. Shiny, blue hyperlinks that turn your arrow cursor into a hand and underline themselves, just begging to be clicked. Naturally, one is never enough, as the first followed link has more intriguing-looking links nestled within its text…and so on. This can lead to lots of wasted time, but it also helps one stumble upon things.

In tonight's example, I eventually found myself looking at the Wiki page for the Supremacy Clause of the US Constitution. (If you're interested, the path was from a web search on Dan Alvarado, a goobernatorial [sic] candidate, and "gun control," leading to a gun rights group critique of him that mentioned state preemption, which I was unfamiliar with, prompting a Wiki search > federal preemption > Supremacy Clause.) I'm actually familiar with the Supremacy Clause, and I was trying to understand how it is used to support Federal Preemption. Perhaps I should explain that--I prefer explanation to linking, because I fear the art of integrating knowledge is on the decline and since this is My Blog, you're gonna get My Take on it.

Federal preemption, in a nutshell, means that when state laws conflict with federal laws, the federal law wins. At least, this is what our federal government would have you believe. A careful reading of the clause in question shows that an important distinction is being glossed over. The Constitution is a very well-written document. There exists some ambiguity in parts, but in general it is clear and concise and its meaning can be picked up by the layman--a far cry from much law written today! The clause in question reads,

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 mine. The bolded segment is what is continually overlooked. As it stands today, any state law that stands in contradiction with any federal law is shot down by a federal court, up to and including the Supreme Court. What the clause actually states is that federal laws that are backed by the authority of the Constitution cannot be overridden by the states. America's ugly secret is that the federal government is quite limited in what it can do, with most legislative power left up to the states. All the federal government can do is the following, based on Article I of the Constitution:

• Borrow money
• Regulate commerce among the states
• Regulate naturalization
• Regulate bankruptcies
• Coin money
• Fix weights and standards
• Punish counterfeiters
• Establish post offices
• Establish post roads
• Record patents
• Protect copyrights
• Create federal courts
• Punish pirates
• Declare war
• Raise an army
• Provide a navy
• Call up the militia
• Organize the militia
• Makes laws for Washington, DC
• Make rules for the Army and Navy

This is bad news for both established political parties because both want you to believe that they have the authority to regulate things like who you marry, what your health care plan is, what you ingest, how and what your children learn, and how much carbon you can put into the atmosphere. And the sad truth is that they are backed up by the Supreme Court time after time, despite the fact that the supposed reigning document blatantly says otherwise.

This doesn't mean the US reverts to a Wild West scenario where anything goes. Rather, it is left up to the various states to decide how they want to do things. The advantages of this method are numerous; chief among them is that instead of one giant sluggish overarching central power we would have fifty smaller labs of democracy in which to try new ideas. It means that people in Pennsylvania would have little say in how people in California live their lives, because what's best for PA isn't necessarily best for CA. At the same time, states that find methods of governing that work would see their achievements replicated throughout the union. The disadvantage is that some people would live under restrictions that are burdensome--yet how is that different from our current system? The difference is that to relieve them, one would only have to move a state or two away instead of into an entirely new country. This feat isn't possible for everyone, especially the poor, but again, this is no different from our current structure.

There is a solution to the federal government's overreach in the Enumerated Powers Act. This bill would require Congress to "reference the specific clause(s) of the U.S. Constitution that grant them the power to enact laws and take other congressional actions." It would force our lawmakers to cite the authority upon which the law rests instead of letting them do whatever they want simply because they are Congress.

I'm kind of on a roll, and I could go into all sorts of things like how the 17th amendment mandating the direct election of senators ought to be repealed, since the people control the House and the member states currently have no representation. But the sad fact is that few of my few readers will care about the constitutionality of our current situation as it is. I, as a pragmatist, certainly understand that times change and that the world today is not the same as it was in 1787, but I can also clearly see the excesses that our government has indulged in, and I can see that a nation which was founded on the rule of law yet has abandoned it is a nation whose political class is accountable to no one. The last ten years should be evidence enough of that.