Constitutional Supremacy

I lived in Oklahoma for a while, and I don’t love the state. My antipathy has nothing to do with politics, though. I don’t know if it will stand, but I fully support this effort:

Oklahoma House Passed Bill to Let State Declare Biden Executive Orders Unconstitutional (newsweek.com)

On the whole I think this Newsweek article is balanced and fair. I do take issue with their wording of one particular paragraph:

“The 10th Amendment says powers not delegated to the federal government are reserved to the states. However, the U.S. Constitution’s Supremacy Clause also states that federal law generally takes precedence over state laws and even state constitutions.” What they are saying, is, in effect, “The states reserve all rights that are not granted in Article I, Section 8 (The Enumerated Powers), unless the Federal Government passes a law usurping that right! But the 10th Amendment expressly prohibits such Federal laws!

Contrary to what you may have heard, the Constitution of the United States is clear and simple. You may have to look up a word or phrase here and there (e.g., habeas corpus, or Bill of Attainder), but once you’ve done that, you don’t have to have a Harvard law degree to know what it means! The Constitution is the supreme law of our land. If Congress passes a law that violates the 10th Amendment, then that law is by definition invalid! If the President attempts to enforce that law, then he is in violation of the Constitution, and the states can and should defend their Constitutional rights! If the courts, including the Supreme Court, uphold such a law, it is still unconstitutional, because it is absurd to think that an office created by the Constitution can userp the Constitution!

What Oklahoma is trying to do is yet another of many historical attempts by states to nullify unconstitutional Federal laws and actions. Yes, it has been tried before, with little or no success. The concept goes back at least to Thomas Jefferson. In 1791, as Secretary of State, he wrote an opinion letter to President George Washington regarding proper remedies for an unconstitutional law coming out of the US Congress:

“The … shield provided by the Constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.”

In other words Jefferson defends nullification by means of: (1) Presidential Veto; (2) Judicial Review; and, if all else fails, (3) Nullification by the states.

The Oklahoma House Minority Leader says, “It’s interesting to me that the States’ Rights Committee only seems to exist when there’s a Democrat in the White House, and that these issues only come up when there’s a Democrat in the White House”. She’s right, of course. Unfortunately, that is the way American politics functions these days. We don’t tend to do what is correct and just, we do what is expedient, and only argue when it suits our particular ends. Sad.

Oklahoma is right in this instance, and yes, it is right no matter which party is in power!

Author: Ron Thompson

Retired President of R. L Thompson Engineering, Inc.

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