Strict Constitutionalism and Its Effect on State Policy
The US Constitution and any Act of Congress which is pursuant to it, is the Supreme Law of the Land. Not only does Article VI of the US Constitution state this explicitly, the North Carolina State Constitution also references the supremacy of the US Constitution and the allegiance we all owe to it.
Let’s take a closer look at the Supremacy Clause:
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.
And let’s take a look at the Allegiance Clause of the North Carolina State Constitution:
Article 1, Section 5: Allegiance to the United States.
Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.
There are some very important takeaways here which I believe that a lot of people, at all levels of government and in the private sector, often miss. Here is my take:
The Supremacy Clause to the US Constitution clearly states that the Constitution and any Law of Congress in Pursuance of the Constitution, is the Supreme Law of the Land. That word, “Pursuance” is of particular importance. In 1789, before current English rules of grammar had been hammered out, important concepts were often capitalized as a matter of course. In all the original drafts of the US Constitution, the word “Pursuance” is capitalized. This identifies the word (and the sub-clause it controls) as a primary component of the Supremacy Clause.
Logically, this provides us with two major concepts that are critical to understanding how our government is supposed to work. First, the text of the Constitution and any law pursuant to that text is supreme, and no Executive, Judicial, or Legislative Acts of any State may contradict it. Second, it also means that any law that is not pursuant to the text of the Constitution, is not the Supreme Law of the Land, and therefore Executive, Judicial, or Legislative Acts of any State may contradict it at will.
In order to be Supreme, an Act of Congress must follow from the text of the US Constitution, and any Act of Congress that does not follow from the text of the US Constitution is not Supreme.
If this sounds similar to the argument provided by supporters of the Tenth Amendment, it is no coincidence. The doctrine of delegated powers can be drawn exclusively from the Article VI Supremacy Clause of the US Constitution. The purpose of the Tenth Amendment is really to further explain and enforce the doctrine already contained in the Supremacy Clause.
The Allegiance Clause of the NC State Constitution closely mirrors the Supremacy Clause of the US Constitution. In the same way that the Laws of congress follows from the US Constitution, North Carolina’s Allegiance Clause has the government following from the US Constitution.
Our paramount allegiance to the US Constitution and the government which it provides, also logically implies that when the federal government does not follow the US Constitution, our allegiance is not required on that point. If anything, by listing the US Constitution first we would be obligated by our paramount allegiance, to resist the federal government when it acts in discord with the US Constitution.
Both the Supremacy Clause to the US Constitution, and the Allegiance Clause to the NC State Constitution, speaks of binding. In the Supremacy Clause, all officials are bound to obey the US Constitution and any Laws which follow from it. In the Allegiance Clause, no law or ordinance of the State which acts in contravention to the US Constitution or the Laws pursuant to it, can have any binding force.
This, of course, means that every official in every State is obligated by the Supremacy Clause to obey and enforce the Constitution and whatever Laws of Congress that can be derived from the text of the Constitution.
It also means that while the NC State Legislature is not prohibited (at least by the NC Constitution) from passing laws in contravention to the United States Constitution, such laws cannot be binding.
What does all this mean?
First and foremost, it is important to understand that the US Constitution, the powers it delegates and prohibits, and the Laws of Congress that follow from the US Constitution, are the Supreme Law of the Land. Any attempt to contradict such powers and laws is illegal, and tantamount to treason.
Second, any Laws of Congress, Acts of the President, or Decisions of the Federal Courts which do not follow from the Constitution or the powers that it delegates or prohibits, are not the Supreme Law of the Land, and may be contradicted at will, and contradicting such unconstitutional policies may be obligatory according to some readings of the Allegiance Clause.
What is the problem?
Over the course of the last 50 years, the federal government has become increasingly more and more aggressive at producing unconstitutional Acts of Congress, Orders of the President, and Decisions of the Judiciary. Political actors on both sides of the aisle are petrified at any mention of resistance to such acts, and cowed into submission in ways that would outrage the Founders and the Framers of the United States.
Despite James Madison — the primary author of the US Constitution — having himself authored acts of nullification for Kentucky and Virginia, we are told that acts of nullification are unreasonable, unconstitutional, and downright treasonous.
This is, of course, untrue. However, we have come to a point where the stigma against such action has been propagandized into impossibility. A new method of handling federal violations of the Constitution must be charted.
So what can we do?
A structure should be emplaced via State law that provides for the establishment of “Pursuance Hearings” in the General Assembly. A bill must be introduced, passed, and signed into law that will establish a procedure for addressing Acts and Laws of Congress, Orders of the President, and Decisions of the Federal Courts considered to be non-pursuant to the text of the US Constitution.
Once the structure and procedures for these hearings is signed into law, a Joint Resolution of the Legislature specifying the specific Act, Order, or Decision can be brought before the Legislature, seeking redress through a non-pursuance hearing of the Joint Committee of the Full Legislature.
The decision as to whether a specific Act, Order, or Decision is or is not pursuant to the Constitution must be carefully separated from any decision as to how precisely to respond, and then any proposed response that follows from that decision emplaced into its own separate bill and brought before the House and the Senate for a vote.
A decision by the full Legislature that a specific Act, Order, or Decision is or is not pursuant to the Constitution can be made in isolation, and once that decision is established the legislature can further decide whether or not to do anything about it, and if so, to do precisely what.
In most cases, if and when a specific Act, Order, or Decision is found not pursuant to the US Constitution, that finding by itself will likely stand on its own without any recommendation to act. In any particularly egregious federal violation of the US Constitution, actions may be pursued anywhere from passive noncompliance to active interposition.
Finally, in the case of active interposition, if the NC State Supreme Court or the US Supreme Court should hand down a decision that such interposition is not well taken, the law will stand, it will simply not be binding.
The United States Federal Government has occasionally acted in contravention the US Constitution all the way back to 1803, but the frequency and audacity of such acts is increasing exponentially into the 21st Century, and a legal process which obeys the Supreme Law of the Land and both our federal and State Constitutions under which we can address these violations must be enacted to retain those very principles which makes the United States a beacon of liberty around the world.
Contrary to leftists propaganda, this is not to oppose the Unites States in any way, shape, or form, but to protect, defend, and uphold the United States and keep her strong and healthy for generations to come.