Posted: March 15th, 2014 by Militant Libertarian
In my younger days I used to be a regular consumer of conservative talk radio. How convenient it was, I thought, that I could just set my dial to the right frequency and be fully informed about the issues of the day.
I have long since abandoned talk radio after coming to the realization that, no offense, most of the personalities were pontificating blatherskites who were far less informed than their on-air demeanor would indicate. Even so, in moments of weakness, I occasionally find myself flipping the radio to AM just to see what I’m missing.
Fortuitously, Monday was one of those days. I was driving in my car around lunchtime and nothing on my iPod sounded appealing, so I decided to see what Glenn Beck was talking about. As it turned out, Beck was out and Buck Sexton was filling in. To my surprise and delight, during a discussion of the day’s trending stories on theblaze.com, Sexton discussed a piece about Missouri’s efforts to nullify federal gun control laws.
I was really just impressed that, to Sexton’s credit, the topic was being covered on national talk radio. The host was complimentary, remarking, “I think this is fascinating, this battle that’s playing out, state by state, of the federal government versus the states that are trying to protect the constitutional rights for those who live in the state against the federal government.”
As I drove down the road I caught myself actually enjoying talk radio. There nullification was, in all its glory, for millions of listeners to see – or at least hear.
But unfortunately this sentiment was short-lived because Sexton kept talking. “It (nullification) is the reverse of how it’s supposed to be. It’s supposed to be the federal government that says, ‘No, no, no states, hold on a second. You have a constitutional right to X, you cannot infringe (beyond) that.”
Face, meet palm.
But it got even worse as Sexton, even while praising Missouri’s protection of the right to bear arms, continued, “I will say, as a matter of federal law, this is very problematic because of the Supremacy Clause.”
At this point I hit the power button, promising to never listen to talk radio again. There was constitutional truth, tantalizingly close to being unfurled, obfuscated by ignorance once again.
I don’t know where Sexton got the idea that it’s the federal government’s job to police the states, but it is an unfortunately common belief that is totally false. The Constitution as it was written and ratified, being merely a delegation of powers by the states to the federal government, contains no such provision.
The historical reality is actually completely counter to Sexton’s understanding and was that, as founding father Roger Sherman put it, “when the government of the United States…leaps those bounds (in the Constitution) and interferes with the rights of the State governments they will be powerful enough to check it.”
In fact, when James Madison was proposing the amendments that would become the Bill of Rights, he suggested adding an amendment that would have applied certain amendments, such as the First, to the states. The implication of this proposal being that there did not already exist the authority for the federal government to enforce the Bill of Rights against the states.
This was the only one of Madison’s proposed amendments that didn’t even make it out of committee. The first Congress, like the Constitutional Convention, rejected the proposal that the federal government have authority over the states. There has been nothing in the subsequent 224 years, not even the misinterpreted Fourteenth Amendment, to change this truth.
Sexton is likewise not alone in his opinion that nullification laws violate the Constitution’s Supremacy Clause. I imagine that this company will be a great comfort to him once his error is revealed.
In his tremendous book The Founding Fathers’ Guide to the Constitution, historian Brion McClanahan called the Supremacy Clause “one of the most abused, misunderstood, and misquoted clauses in the Constitution.” It is indeed repeatedly cited as conclusive proof that any law that the federal government makes is constitutional by definition.
Fortunately this error can be corrected simply by reading the entire clause, which only states that laws which are made “in pursuance” of the Constitution are supreme. There is absolutely nothing about the Supremacy Clause that magically grants constitutionality to any federal law.
Logically, the expansive reading of the Supremacy Clause makes no sense. In order to subscribe to it we have to believe that dozens of men met in a stuffy room for four months to debate the limits of the federal government, then spent another year debating those same limits in the state ratifying conventions only to allow for every limit to be ignored by the inclusion of one phrase. If this were true it would have been the most ridiculous breakdown in reasoning the world has ever known.
Alexander Hamilton clarified the intent of the Supremacy Clause when he said that it meant that “the acts of the United States…will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”
Unfortunately, talk radio listeners didn’t hear this. Instead they heard the same centralized propaganda that they’d get on MSNBC.
Ultimately I don’t really blame Buck Sexton. He is likely a perfectly decent person to whom I’ve been unduly harsh. Heavens knows that, were this five years earlier, I’d have been peddling the same junk history. The difference is that I’d have peddled it to a much smaller audience.
But those of us who understand the constitutionally correct roles of the state and federal governments cannot abide the mass miscommunication of the Constitution’s division of powers. What allows Missouri to resist unconstitutional gun laws is the truth that the federal government is strictly limited in its powers and that when it attempts to surpass those powers, the states are, as James Madison said, duty-bound to resist.
It’s just too bad that ol’ James didn’t have a three-hour talk show.