One of the puzzling trends in our national culture is the shift from a country committed to the rights of sovereign individuals and the authority of sovereign states to a country acquiescing to ever-increasing authority and power by a central government in Washington.
What makes this even more puzzling is that our Constitution was intentionally structured to prevent such a shift from happening. The original signatories of the Constitution had just fought a war to free themselves from the clutches of a strong central government in London and had every intention of preventing the rise of another strong central government here in America.
One of the clues to this puzzle can be found in the Supremacy Clause of the Constitution, which is described in Article VI, Clause 2: “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, anything in the Constitution or Laws of any State to the Contrary notwithstanding.”
That is a powerful clause in our Constitution. The insertion of this language was considered necessary to address one of the failings of the Articles of Confederation, America’s original constitution that preceded our current one. The Founders judged that the Articles of Confederation failed because they did not grant enough power and authority to the central government, thus rendering it weak and ineffective. They reasoned that if the states desired to create a federal government, then such government must be granted some power and authority that can’t be ignored by the states, or else the federal government would have no practical foundation for its existence.
Of course, there was grave concern among the Founders that this Supremacy Claus would go too far by implying that the Federal Government had unlimited power and authority over the states. The Founders addressed this concern in two ways. First, the nature and language of the Constitution itself grants only limited, enumerated powers to the Federal Government. The Supremacy Clause, depite some tortuous language, implies this as well. The clause limits its own scope to “This Constitution, and the laws of the United States which shall be made in Pursuance thereof…” Second, the Founders quickly appended the Bill of Rights to the body of the Constitution to make sure that the concepts of individual and state sovereignty were an indelible part of our federal structure. Specifically, the 9th and 10th Amendments were added to make clear that individuals and states retained all rights and powers not specifically granted to the Federal Government in the Constitution.
In summary, the intent of the Founders regarding the Supremacy Clause was to give the Federal Government some power that was supreme over the states but limited only to those cases where the Federal Government was specifically empowered by the Constitution to act. All other rights and powers remained with individuals and states, regardless of the Supremacy Clause.
Therein lies the rub. Whereas the Constitution, at least superficially, seems to be clear on such matters, it is actually a very short and generalized document lacking detail and context. It grants Congress and the Courts considerable latitude to make laws and to interpret those laws. As the centuries passed and the nature of our political and civil existence evolved and modernized, the original intent of the Founders became contorted and blurred in antiquity. Like a thief creeping in the night, Congress and the Courts gradually expanded the size, scope, and authority of the Federal Government. Precedents that strayed from the original intent of the Constitution were erected upon earlier deviant precedents.
In truth, the only effectual barrier against such inevitable authoritarian creepage is the political will of the people. The Constitution is only words on pieces of paper. It is executed and policed by real leaders who are fallible at best and malevolent at worst. While we hope that such leaders will have the wisdom and fortitude to insist on preserving the original intent of the Constitution, we frequently elect leaders who are reckless or avaricious enough to distort or twist the Constitution as various crises and temptations give rise to grabs for partisan or personal gains.
To some extent, the Founders enabled the potential for this. Within the structure they envisioned for our Constitutional Republic, they saw Congress as the branch of government that represented the will of the people. While each of the three branches are theoretically constrained in their scope by the Constitution, Congress was given greater latitude to act than the other two because of its role as representatives of the people.
Over the decades, Congress has taken full advantage of that latitude. And the Courts have often acquiesced when Congress overstepped the intended boundaries of the Constitution, deferring to the House and Senate because Congress was entrusted with representing the people. In the minds of the Founders, this potential weakness was tolerable because the “will of the people” at the time was solidly entrenched in the principles of individual accountability and state sovereignty. Unfortunately, the “will of the people” has gradually shifted toward the principles of collective responsibility and authoritarian central government. Worse yet, the “will of the people” has often been misrepresented in favor of the will of their leaders to line their own pockets and stroke their own egos with authoritarian control.
The result of this evolution over more than two centuries is that we now have a Federal Government that is enormous in size, scope, and power. And with each step it takes toward even greater authority, it can safely rely upon the dangerous Supremacy Clause to “legitimize” the resulting erosion of individual rights and state sovereignty. It can also safely rely upon too many citizens remaining silent while this happens.
At least for the time being.
At some point We the People must summon the courage and fortitude to remind our leaders of the intended Constitutional constraints on federal power – including the Supremacy Clause. We will also have to remind them of the inalienable sovereignty of the individuals and the states who created the federal government and who can reform it if necessary.