Perhaps the most misunderstood and abused provisions of the U.S. Constitution are the ‘Supremacy’ and the ‘Necessary and Proper’ clauses. They are reproduced here, in full, for your reading pleasure. We will deal with the underlined phrases as we progress.
SUPREMACY CLAUSE
ARTICLE VI, CLAUSE II
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.
NECESSARY AND PROPER
ARTICLE I, SECTION VIII, CLAUSE XVIII
(The Congress shall have power)To make all Laws which shall be necessary and proper for carrying into Execution 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.
These two clauses were the subject of considerable discussion at the Constitutional Convention of 1787. The ‘Nationalist’ or ‘Federalist’ side (Hamilton, etal.) argued that these clauses were unnecessary since the body of the document was a distinct grant of limited powers and thus the ‘General Government’ was implicitly endowed to act on only those functions. The ‘Anti-Federalist’ or ‘States Rights’ folks (Henry, Mason, etal) wanted more explicit assurance that the federal government would not overstep those bounds. Thomas Jefferson opined that the federal government should be ‘bound by the chains’ of the Constitution.
Let me digress a moment to define the above terms. The folks who wrote the ‘Federalist Papers’ were actually ‘Nationalists’, meaning that they believed we should have a strong central government with the states in a secondary role. The ‘Federalist Papers’ were newspaper editorials written under the pseudonym Brutus by Alexander Hamilton, James Madison, and John Jay for the purpose of influencing the State Conventions in favor of the Constitution (without the Bill of Rights).
There was also the counter view of the ‘Anti-Federalists’ who wrote in opposition to the Constitution as presented. They wanted more explicit language, including the Bill of Rights, concerning the limitations on the federal government while keeping the States the more powerful entity, since it was the pre-existing States that were creating the general government (Can the created be more than the creator?) Actual authorship is a matter of some dispute, (since they used the names Cato, Centinel, etc.) but may have been the likes of George Mason, Sam Adams, Richard Henry Lee, and Melancton Smith (thought to be the Federal Farmer) among others.
Now back to the subject at hand, namely the ‘Supremacy Clause’. As you have now studied the full statement, you are wondering about the underlined portions. This Constitution, and the Laws of the United States… shall be the supreme Law of the Land… Did you notice what was missing? Namely…’in pursuance thereof’. The folks who want an all-powerful federal government don’t like this phrase because it is a limiting one. In other words, as our Founders clearly meant, these clauses, especially when read in the context of Article I, Section I—All legislative Powers herein granted…–limit the authority of the National Government to those listed in Article I, Section VIII. (There are a few others in other sections but they are mostly process) There are those in powerful positions who are purposefully misrepresenting and misstating the meaning of these quite clear Constitutional statements. And many Court arguments have been made, and accepted, using this truncated version, while ignoring decisions that do not fit their purposes. Take for example the public lands issue. Since 1828 the Supreme Court has ruled that the federal government must ‘extinguish title’ to public lands held in their trust in accordance with the ‘sacred compact’ of the various western states’ enabling acts. The ‘Supremacy Clause’, as underlined above, coupled with Article IV, Section III, Clause II (the ‘Possessions Clause’) is improperly used to justify federal ‘ownership’ of those lands and resources. And many, if not most, of the citizenry go along with, and even trumpet, this distorted version, either because of ignorance reinforced by our mass media and educational system, or because they do not accept our form of government as written.
The ‘Necessary and Proper Clause’ suffers the same distortion. It is referred to also as the ‘Basket Clause’ or the ‘Elastic Clause’. I can’t find it now, but I seem to remember reading that it was also called the ‘playground of charlatans’. As we have seen above, and again here–(The Congress shall have power)To make all Laws which shall be necessary and proper…–using only a portion of the whole totally changes the meaning and understanding of the clause. Those who are in the positions of governing use this version to argue that any law which they may devise is necessary for the purpose of governing, totally ignoring the next phrase– for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution… An example of this might be the PPACA (ObamaCare). THE CONSTITUTION MAKES NO PROVISION FOR THIS LAW!!! They use as a base of support some statements made in two Supreme Court cases—Marbury v. Madison (1803) and McCulloch v. Maryland (1819). I will neither quote nor analyze these, or any other cases, since it would only complicate our desire for a clear understanding of the original intent of the Founders.
To quickly summarize then, a clear and full reading of these two clauses shows definitive restrictions on the power of the federal government as meant by the Founding Fathers. Alternatively, the underlined portions, as is argued today, are a prime basis for the out of control and unconstitutional National government of today.
Bud