Originally Posted by
gloopy
No one really disputes that. The issue though is one of endless sophistry whereby the absolutely highest federal law (the Constitution itself) severely limits federal power to a very narrow scope of application, but then gets constantly ad hoc modified with "interpretational" advocacy. So then we get judicial activists to "make it fit" with literally anything they personally want to be the law of the land. Why even have a Constitution if all we needed was:
Article 1: Blah blah blah general welfare clause, yadda yadda yadda supremacy clause, we hereby decree that pretty much anything and everything is federal and therefore supreme. The end.
They really could have saved themselves a lot of unnecessary drafting by replacing the Constitution with that one sentenence if that's really how things were supposed to be.
What our Constitution authorizes the federal government to do has been debated since its ratification.
But, for us, I think it's important to keep in mind that the Constitution came about because the Articles of Confederation (AOF) were too weak.
Back then, they had people who wanted the Constitution to specifically enumerate what was authorized, and they had people who felt it was to be left open to interpretation. But, I think if you look back at it, most of the Founders and Justices of our past thought this was neither possible, or practical.
Even the Founders who vehemently opposed the open ended interpretation of the Constitution that gave the Federal Government power, and felt they must be specifically defined, acted otherwise once they were in office. Otherwise, that whole Louisiana Purchase thing wouldn't have occurred.
I think when the Constitution was ratified, they were just trying to make things work and pay the bills and it didn't really make sense to have a state law -- if it conflicted with a federal law -- to be on the same level. It would have been the AOF all over again.
So, in my opinion, the judicial activist you speak of were some very smart men who did a lot to keep this country together. One of the first was Chief Justice John Marshall. His opinions on the Court probably did just as much to shape and maybe even save this country as anyone.
So, long story short. I think the priority is:
1.) U.S. Constitution
2.) U.S. Federal law
3.) U.S. Treaty
4.) Executive Agreement
5.) State law
One of the best Court cases to figure out the reasonings behind the Supremacy Clause is called McCulloch v. Maryland. Check it out and let me know what you think.
New K