The Bill of Rights v. the Clauses

The battle lines are being drawn.  The fields of battle are varied, but they share one commonality: whether they concern federal abortifacient mandates, gun control, or the health mandate, all represent conflicts between enumerated Constitutional rights and the big three clauses - the Supremacy, Commerce, and Necessary and Proper clauses of the Constitution.

A number of states have initiated legislation to reassert their rights under the Tenth Amendment to nullify federal legislation that conflicts with those rights.  The typical federalist answer is that the big three clauses trump the rights of the States or the People.

Here is my response to appeals to the Supremacy, Commerce, and Necessary and Proper Clauses: 

"The Preamble to The Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.  

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, THAT FURTHER DECLARATORY AND RESTRICTIVE CLAUSES SHOULD BE ADDED: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.  

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution..." (all caps added). 

 
The stated intention of the Bill of Rights is to prevent the abuse of power by the federal government by restricting the very clauses to which many in Congress have appealed. Simply stated, the Amendments that make up the Bill of Rights SUPERSEDE the Supremacy, Commerce, and Necessary and Proper Clauses - regardless of whether federalist-minded judges agree with that truth. The Bill of Rights was ratified by a veto-proof two-thirds majority of both houses of Congress, which was absolutely necessary because Washington was opposed to many of the provisions it contained (it is interesting to note that the Preamble of the Bill of Rights says nothing about the President SIGNING it, only that it was ratified by a two-thirds majority of both houses of Congress and by a three-quarters supermajority of the legislatures of the States). Why? Because the provisions of the Bill of Rights  would have served to diminish the absolute power of the federal government. George Washington's circular letter to the governors of the States and his retirement address both declare his unswerving belief that this would be detrimental to the future of the country, that an absolutely supreme, all powerful, centralized government to which the States and the People were in absolute subservience was the only way to insure our future. We can see where Washington's beliefs have taken us as our Constitutionally-enumerated rights continue to be eroded by a power-hungry government that represents its own interests and agenda.

Remember: the United States was created by the States.  The principle established in the Bible is that the potter has power over the clay.  It is inappropriate for the clay to say to the potter, "Why have you made me this way?"  So it is supposed to be in the relationship between the States and the federal government.  The States created the federal government.  The States, therefore, retain the power to determine the extent to which federal authority is allowed to go.