Supremacy Clause – Article VI – to help understand Amendment 10

• Article IV adds complexity which 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, anything in the Constitution (literal words or interpretation) or laws of any State to the contrary notwithstanding.”

• “The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; ….” This includes members of the military and all civilians employed by the federal and state governments.

– All of the above was necessary due to failure of Articles of Confederation to solve nation’s problems when the 13 states after the Revolution (Articles of Confederation 1781-1789) could do their own thing, which divided the USA and made it weak. There was no national unity. Citizens viewed their country as their state – not the USA. We could not force states to cooperate to help solve national economic and national defense problems when our survival depended on it because they were selfish. Each of the original 13 states could go its own way, even in face of 1786 depression & war, opt out of helping the nation, refuse to finance it. There was no national coordinator, no coach to call the plays for the national team, no quarterback. Article VI of USA Constitution REQUIRED a change – NOW the US Constitution, laws of Congress, and treaties negotiated by the POTUS and ratified by the US Senate are supreme over anything states want to do. There are exceptions when federal law goes too far.

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Necessary & Proper or “elastic clause” (Article 1 section 8) – to help understand Amendment 10

• The “elastic clause” adds complexity which states Congress has the power “to make all laws which shall be necessary & proper for carrying into Execution of the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” If one does not understanding necessary and proper, he cannot understand the 10 th.

• Subject of debate between founders. Hamilton, Washington & Madison argued for Congress to exercise broad range of implied powers. Jefferson concerned giving Congress too much power; argued "necessary" was a restrictive adjective meaning essential only & his view if adopted would strengthened States' Rights. Events helped foster the growth of strong central government. Debate over the Necessary and Proper Clause came to a head in landmark U.S. Supreme Court case, McCulloch v. Maryland 1819.

– Background: Bank of United States established branches throughout states. But state-chartered banks resented competition & got state legislatures to restrict

– Bank of United States operations. State of Maryland imposed a tax on Bank of United States operations, when James McCulloch, cashier of Baltimore branch of Bank of United States refused to pay the Maryland tax, the issue went to court. Question before U.S. Supreme Court: does the state or national government hold more power? Central was Court's interpretation of Necessary and Proper Clause. The Court held (Chief Justice John Marshall): state of Maryland (or any other state) could not undermine an act of Congress. States were subordinate to the federal government. Ruling established Congress could use Necessary and Proper Clause to create a bank even though the Constitution does not explicitly grant that power to Congress. Chief Justice John Marshall's opinion not only endorsed the constitutionality of the bank, but went on to uphold broad interpretation of the federal government's powers under the Constitution. The case quickly became the legal cornerstone of subsequent expansions of federal power.

– The elastic clause is one of the most powerful in the Constitution & used for so much in history for all types of federal actions including requiring racial integration in the states and even Congress passing Obama health care law.

– Here you will find a legal discussion about the 10 th before the US Supreme Court whose decisions on the “necessary & proper clause” changed the 10ths meaning forever. http://www.law.cornell.edu/anncon/html/amdt10_user.html

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10th Amendment• The 10th states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

– 1st 9 amendments protect individual rights. 10th protects certain state government powers – not individuals. States gave up much power to create new Constitution/new federal power, but insisted to affirm their role in federalism. Question: How do you solve serious people problems nationwide – providing uniformity from one state to the next, like civil rights, job discrimination, safety in the work place, and working conditions, when state power (elected leaders) in some states do not want the problems solved? A key element of human nature is conservative resistance to change and an unwillingness to help constituents (often due to influences of money interest groups who do not want the change).– From beginning there has been major dissension between advocates of state or federal powers - Chief Justice John Marshall said this will continue “as long as our system exists.” Some argued “state sovereignty” power is equal or greater than federal power, while others argued nationalism – the supremacy of federal government power.– Nullification theory or state “compact theory” … sovereign States created the Union and thus they have the right to invalidate any federal law THEY deem unconstitutional – that States – not Federal courts – are ultimate interpreters of national power (ignores new legal relationship). Jefferson & Madison advanced (after constitution & amendments ratified) in response to Federalist majority Congress passing Alien & Sedition Acts 1798 that increased residency requirement for American citizenship from 5 to 14 years, allowed Federalist president to imprison or deport aliens who he deemed dangerous to USA, restricted speech critical of Federalist federal government. Madison & Jefferson viewed these Alien & Sedition Acts as a crisis because they were authored by opposition Federalists (like conservative Republicans today) designed to decrease number of Irish & French voters who disagreed with Federalist party and supported Thomas Jefferson & Democratic-Republicans (precursor to Democratic Party). Virginia & Kentucky passed laws stating that when the federal government exceeds its powers, the state could refuse to obey. During the War of 1812 with Britain, President Madison regretted his “nullification” position because New England states’ conservative Federalists threatened to secede from USA at the Hartford Convention 1814 due to their opposition to the war with England causing them to refuse to cooperate with the national war effort including resisting sending troops & financing, and were opposed to the Louisiana Purchase. (Think about how sovereign individuals join in marriage to create new legal relationship and you cannot just walk away avoiding legal liability).

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Can States Secede from USA?• The answer in Article 1 of the US Constitution is technically yes BUT only with

permission of USA Congress. Unilateral is not legal and causes reaction – even federal law enforcement arrests and military force. Remember, the Constitution is supreme over all, not national or especially in this case – decisions by state leaders.

• Consider previously mentioned Constitution powers, court cases, and the following denied to the States without permission of Congress.• Article 1, section 10, clause 1: “no State shall enter into any treaty, alliance

or confederation.”• Article 1, section 10, clause 3, “no States shall without permission of

Congress keep troops or ships of war … or enter into agreements with another State or foreign powers, or engage in war.”

• Article 4, section 3: “nor any State to be formed by the jurisdiction of 2 or more states - without consent of the Legislatures of those states concerned as well as of the Congress.”

• Amendment 14 section 3, no person is eligible to hold ANY government job at the national, state or local level if engages in insurrection or rebellion against the USA, or gives aid or comfort to the enemies of the USA. (This was not in effect until right after the Civil War in 1868).

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Secession & Disastrous Civil War• In early 1830s South Carolina threatened to secede over the issue of federal tariff

collection https://www.princeton.edu/~achaney/tmve/wiki100k/docs/Tariff_of_1828.html but President Jackson threatened force and the crisis was averted.

• New conservative Supreme Court decisions prohibited Congress actions over states (Dred Scott v. Sanford 1857), deciding Congress had no power to regulate slavery in States.

• Famous Ableman v. Booth 1859 Supreme Court case opinion: State courts cannot contradict federal courts or rule federal law unconstitutional. (Supremacy clause Art. 6) http://en.wikipedia.org/wiki/Ableman_v._Booth This case happened because northern states tried to block Congress’ pro slavery Fugitive Slave Act 1850 (requiring all runaway slaves to be captured in either slave or free states and returned to their owners). Northern free state courts tried to block a law passed by the US Congress, but they failed. The federal government is supreme.

• In 1860 South Carolina did secede from the USA illegally, followed by 10 other southern states and the result was disastrous.

• South seceded to defy Lincoln to protect slavery (to stop it would undermine southern commerce & civilization.”) North went to war to defend itself, to keep country together & later to end slavery. (Read following link) http://www.washingtonpost.com/outlook/five-myths-about-why-the-south-seceded/2011/01/03/ABHr6jD_story_1.html

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Secession & Disastrous Civil War• Confederate Col. John Ford (R.I.P.) of South Carolina and his men started the

Civil War in Texas where the 1st blood was spilled between the states on 4/1/61 when Tejanos (Texans of Mexican heritage) like USA supporter Ochoa were hanged. Ford captured and killed 20 of Ochoa’s Tejanos (USA supporters). Decades of growing strife between North and South erupted further on April 12, 1861 when Confederate artillery opened fire on United States military (treason) in a Charleston Harbor Fort Sumter that surrendered 34 hours later with no combat casualties http://www.civilwar.org/battlefields/fort-sumter.html?tab=facts Union forces would try for nearly four years to take it back.

• 4/9/1865, Lee surrendered to Grant. Texas refused to surrender! May 13, 1865, last land battle of Civil War fought at Palmito Hill, near mouth of Rio Grande River, and was a victory led by Col. John Ford, commander of the “Calvary of the West” which never lost a battle in the Civil War. http://en.wikipedia.org/wiki/John_Salmon_Ford

• Of the 31 million USA population (2014 Texas population 27.2 million), 2.4 million served, 1.1 million military casualties (623,026 killed equal to all dead in all USA wars to date). Perhaps another ¼ million civilian casualties. Equivalent of about 11 million in today’s population. 1 in 10 USA troops killed/injured; 1 in 4 Confederate Rebels killed/injured.

• On June 2, 1865, Gen. EJ Davis represented the Union at Gen. Edmund Kirby Smith's surrender of the Trans-Mississippi West Confederate Army -- the only significant Confederate army left.

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Texas v. White 1869

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The Supreme Court, Chief Justice Salmon Chase, ruled in this landmark case: “The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the

Articles of Confederation. By these, the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? --- When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States (through representatives in Congress).”

Supreme Court Evolution of 10th Another conservative Supreme Court’s decision (Hammer v. Dagenhart 1918) overturned Congress’

restrictions on states permitting inhumane child labor. Later reversed. 1930s through 1960s – a more liberal Supreme Court permitted expansion of federal power in wake of

Great Depression & World War such as in (United States v. Darby Lumber Company 1941) declaring Congress had the power to set wage and hour regulations in states (contrary to state wishes) among employees of companies in the state engaged in interstate commerce who treated employees unfairly. This court declared that the 10th Amendment is “merely a truism (trite, banal, cliché, platitude – not necessarily truth) that all is retained which has not been surrendered to the national government and the 10 th is NOT an independent source of state power.” And “From the beginning and for many years the 10th amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”

In Brown v. Board of Education 1954 the Supreme Court ordered an end to state mandated segregation of races in education – all due to White Supremacy laws and attitudes of White superiority over all other races. Due to White violence, Presidents Eisenhower and Kennedy sent in the U.S. Army troops and US Marshals to protect minorities. The Supreme Court upheld the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that gave minorities rights nationwide against discrimination (minorities could not use any place used by Whites like restaurants, hotels) and gave voting rights for all races even though violently opposed by many Whites – especially in southern states like Texas. Listen to this one minute You Tube part of a 1963 speech by Alabama Governor George Wallace proclaiming states’ rights to ensure “segregation forever” http://www.youtube.com/watch?v=hLLDn7MjbF0 From 1937 to 1997 (50 years) the Supreme Court overturned just one federal law.

In Frye v. U.S. 1975 the Court said: “While the Tenth Amendment has been characterized as a ‘truism,” stating merely that ‘all is retained which has not been surrendered,’ [citing Darby], it is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.”

Beginning in late 1990s a conservative Supreme Court reasserted certain state rights, such as stopping Congress from requiring states to do gun background checks (Printz v. United States 1997) declaring it was not within Article One Congress commerce power. From 1997 to 2002 a conservative Supreme Court struck down 25 federal laws that restricted states.

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Can States Secede from USA?• The Constitution provisions mentioned, as reinforced by Supreme Court decisions, and war answers an

emphatic no without permission from Congress.

• But you will never get that permission without a federal fight – even war (been there done that). Congress will never permit Texas to leave. It will send military might and arrest officials to stop any such nonsense.

• In 2013 the USA GDP was a $16.8 trillion economy, and in 2012 the Texas state GDP was a $1.4 trillion economy, 2nd behind California.

• If Texas was a sovereign country, it would be the 14th largest economy in the world. You think the USA will let that go?

• The federal government has spent perhaps trillions investment in Texas since 1845 such as in interstate highways, military bases, airports, air traffic control, other federal installations like NASA and national parks and much more. Then there is all the federal grants that help state education and police and more. Then there is the value of ports like Houston critical to the USA economy. Those are only a few reasons why the federal government would fight any actual subversive movement.

• As Texas v. White 1869 Supreme Court case declared: states are NOT free to leave the union - the United States is an indestructible Union, composed of indestructible States. Accordingly, no state may unilaterally secede.

• The Civil War was started in the 1860s by Southern state ignorant demagogue leaders willing to fan the flames of revolution among ignorant citizens s and it caused horrific casualties - equivalent to 11 million with today's population. Texas Governor Sam Houston refused to take oath to Confederate States of America & resigned to avoid violating the U.S. Constitution. Houston tried to tell Texans that secession and joining the Confederacy wouldn't work. He warned of "rivers of blood," a generation left dead or crippled by war and the ultimate defeat of the South at the hands of the industrial superior North. In a November 1860 letter he asked: “after enduring civil war for years, will there be any promise of a better state of things than we now enjoy?” All his prophecies came true.

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Free speech or rebellion, insurrection & treason?• Gov. Perry & Tea Party activists and some other Republican political

candidates from time to time say Texas can legally and unilaterally secede from the USA. Are they right?

• Consider the Constitution powers mentioned, as well as the many Court cases on the previous slides that affirm national supremacy and deny state secession power without permission of Congress.

• Can states secede from USA? Only ignorant uninformed uneducated persons will believe states can realistically do so. Among any intelligent knowledgeable thinking person it is a settled question. The answer is no!

• Amendment 14 section 3, no person is eligible to hold ANY government job at the national, state or local level if engages in insurrection or rebellion against the USA, or gives aid or comfort to the enemies of the USA. Some say if they hate the USA so much they should stop bellyaching and should take their unpatriotic treachery to another country, rather than try to drag the nation into another disastrous event. The question is, what country would take them? Then again, there is free speech that should not be stopped unless is “clear & present dangerous speech” that the evil is likely to occur before a full discussion is possible. By encouraging them to continue speaking permits us to identify the fools among us.04/19/23 10