Understanding The Original Meaning Of Constitution's Supremacy Clause

TSA Misses The Point
Sunday, May 15, 2011

Texas House of Representatives passed a TSA "nullification" bill that would ban passenger searches at airports without probable cause. The proposal would classify any airport inspection that "touches the anus, sexual organ, buttocks, or breast of another person including through the clothing, or touches the other person in a manner that would be offensive to a reasonable person" as an offense of sexual harassment under official oppression. The bill will move onto the Senate for consideration.

The TSA responded in a statement saying, "What's our take on the Texas House of Representatives voting to ban the current TSA pat-down? Well, the Supremacy Clause of the U.S. Constitution (Article. VI. Clause 2) prevents states from regulating the federal government."

The Supremacy Clause of the U.S. Constitution 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 or laws of any state to the contrary notwithstanding."

To understand the original meaning of the Supremacy Clause one should first look to Federalist No. 33. In that January 2, 1788 essay, Alexander Hamilton explained:
But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
William Davie similarly also said at the North Carolina Ratifying Convention in 1788, “This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations.” Federalist James Iredell said the same thing at the North Carolina Convention declaring that “[t]his clause [the supremacy clause] is supposed [by the Constitution's opponents] to give too much [federal] power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles… If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution."

In fact, the succinct citation by the TSA to the Supremacy Clause is exactly the sort of argument made by the Anti-Federalist opponents of the Constitution. George Mason argued at the Virginia Ratifying Convention in 1788, "Now, sir, if the laws and constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annuled and given up to the general government?" Though the TSA's procedures may indeed have strong legal merit given that flying on an airplane is not a right and given the current necessities to secure passengers and maintain safe flights, their arrogant argument is nonetheless a position in line with what George Mason predicted. This was the prediction of a federal government that argued that it could simply trample the rights of the people without question because its laws are supreme. It is not so much the specific procedures that are problematic as it is the careless attitude of a federal government agency regarding its potential Constitutional responsibilities.

The Supremacy Clause itself must be seen in light of the original scheme of an enumeration of federal congressional powers. James Madison wrote in his Report of 1800, which was meant to explain resolutions passed by some States against the Sedition Act of President John Adams that criminalized criticism of his administration
When the Constitution was under the discussions which preceded its ratification, it is well known that great apprehensions were expressed by many, lest the omission of some positive exception, from the powers delegated, of certain rights, and of the freedom of the press particularly, might expose them to the danger of being drawn, by construction, within some of the powers vested in Congress, more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution, that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them: that the power over the rights in question...was neither among the enumerated powers, nor incident to any of them; and consequently that an exercise of any such power would be manifest usurpation... [The States] ratified the Constitution in the sense that no right of any denomination can be cancelled, abridged, restrained, or modified, by the Government of the United States, or any part of it, except in those instances in which power is given by the Constitution" (emphasis added).
The Texas House of Representatives is of the opinion that certain TSA practices violate the Fourth Amendment to the U.S. Constitution. This is clear from the fact that the Texas law uses the standard of a "reasonable person" and requires "probable cause." This is language borrowed directly from the Fourth Amendment and basic jurisprudence therein. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The understanding of the Supremacy Clause as put forth by the TSA is rather beside the point. The point is that a State law may soon stand in contradiction to a federal law or procedure, and most likely the federal courts will then have to adjudicate the Constitutionality of the TSA screening procedures in order to see which should stand. If the TSA's pat-downs were found to violate the Fourth Amendment then the TSA would be found to be acting outside the bounds of the Constitution. If the TSA engages in unconstitutional procedures, they do not reign supreme. In the words of Hamilton, "these will be merely acts of usurpation, and will deserve to be treated as such." However, if the TSA screening does not violate the Fourth Amendment, then the Texas law would have to be struck down as violating the Supremacy Clause. Whether the TSA techniques violate the Fourth Amendment is then the most relevant issue, not the Supremacy Clause. I personally doubt the federal courts would find the TSA pat-downs given the current climate of airport security concerns to be an "unreasonable search and seizure." Whether federal courts end up finding the TSA's procedures actually in line with the Constitution's Fourth Amendment is a separate question altogether, but the point is that it is the important one.

Quite apart from the issue of "nullification" and a State being able to declare federal laws it views as unconstitutional null and void, a similar procedural tactic was used by the State of Virginia to challenge Obamacare in federal court. Such State laws arguably gives the State standing now to sue the federal government in federal court to defend its State law. This is precisely how the State of Virginia actually challenged the federal Obamacare law. The Virginia Health Care Freedom Act, passed a few days after the federal health care statute, proclaims that "[n]o resident of this Commonwealth ... shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services." Virginia argued to the District Court that this law gave it "standing to sue" even though the federal act's individual mandate provision is directed at individuals, and does not require the State itself to do anything. Federal District Court Judge Henry Hudson accepted this argument, writing that the Virginia statute (despite what he called its "transparent legislative intent" of blocking the federal law), by its "mere existence ... is sufficient to trigger the duty of the [State] Attorney General to defend the law." Oral arguments in the Fourth Circuit Court of Appeals recently touched upon this issue, and it should be pointed out that according to the Washington Post "the judges seemed particularly dubious of Virginia’s assertion that it has standing to sue in the case. A lower court judge had previously accepted [Virginia Attorney General Ken] Cuccinelli’s contention that Virginia has a sovereign interest in protecting a state law passed last year by the General Assembly that makes it illegal to require Virginians to be insured." The point is, however, that there is a credible legal argument currently being made, and accepted by at least even some federal judges, that such State laws passed with intent to directly contradict federal law or procedures give a State standing to challenge in federal court a federal law that they believe is outside the scope of the Supremacy Clause by virtue of its unconstitutionality.

Again, this is not to say that the State law must necessarily and automatically trump the federal law as an advocate of State "nullification" of federal law might argue. "Father of the Constitution" James Madison specifically wrote in a letter to Thomas Jefferson in 1823 that the federal courts play an important role in adjudicating the impact of the Supremacy Clause. It is for this reason that the issue of a wayward judiciary unwilling to uphold Constitutional limits on the federal government should indeed be an issue of much concern to all those that support the original Constitution. As James Madison wrote that the Constitution "intended the Authority vested in the Judicial Department as a final resort in relation to the States, for cases resulting to it in the exercise of its functions... and that this intention is expressed by the articles declaring that the federal Constitution & laws shall be the supreme law of the land, and that the Judicial Power of the U. S. shall extend to all cases arising under them: Believing moreover that this was the prevailing view of the subject when the Constitution was adopted & put into execution; that it has so continued thro' the long period which has elapsed..."

Supreme Court Justice William Rehnquist correctly noted in dissenting in Richmond Newspapers v. Virgnia (1980), "Nothing in the reasoning of Mr. Chief Justice Marshall in Marbury v. Madison requires that this Court, through ever-broadening use of the Supremacy Clause, smother a healthy pluralism which would ordinarily exist in a national government embracing 50 States." Early Constitutional scholar St. George Tucker also put it plainly when he wrote "[t]hat a law limited to such objects as may be authorised by the constitution, would, under the true construction of this clause, be the suprerme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void. "