Originally Posted by
newKnow
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
I agree in principle. The issue is what can be a valid federal law in the first place. It is simply not open ended and unlimited. The 9th and 10th amendments are extremely limiting and when plugged into the 1-5 formula you used above, would invalidate tons of laws we currently have on the books today. The issue is working its way through all levels of the courts and legislatures and is far from resolved. The fact remains that if you accept anything and everything as potentially binding federal law, then the constitution and the states are irrelevant and everything can be replaced with a single line granting all powers without exception to one level of centralized government.
No one disputes the supremacy of a valid federal law within the federal government's extremely limited scope of costitutional power. The issue is the unlimited overreach permitted through judicial activism and sophistry, rarely checked or balanced and when it is, only by the overreaching entity itself.
The EPA has basically decreed, with the blessing of the courts, that carbon dioxide can be regulated without restriction as a federal power. When you speak you exhale carbon dioxide, so if 5/9 justices said the EPA can regulate free speech using that as a technicality, would that be a binding law in your opinion? Don't forget that the entire document is predicated on self evident natural rights that supersede anything a judicial avtivist wordsmith can rubber stamp.