The Supremacy Clause
The notion of American federalism can be segmented into three very important constitutional clauses: the supremacy clause, the commerce clause, and the reservation clause, also known as the Tenth Amendment.
The Supremacy Clause
The U.S. Constitution is a limiting document; that is, it is limited in its ability to intrude upon the individual rights and liberties of the American people. Even so, in spite of such limitations, it is, by virtue of Article VI, the supreme law of the land, preempting any inferior law that contradicts with its established principles; thus, making this clause a major battlefield for American politics. The marijuana debate captures the essence of this struggle well. Consider the flowchart below as it examines the role of constitutional supremacy vis-à-vis the personal use and/or possession of this drug. (1)
The Commerce Clause
In terms of federalism, there is no other area that sparks more debate than that of Congress’s Commerce Clause. Per Article I, Section 8, Clause III, “the United States Congress shall have power ‘To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (34) Originally meant to quell economic disputes between the states as they existed under the Articles of Confederation, the interpretation of this provision by the Supreme Court has taken on new meaning in contemporary America. (1)
From the growth of wheat in Wickard v Filburn (1942) , to the possession of marijuana in Gonzales v. Raich (2004) , state rights and laws have continually been preempted by the controversial commerce clause. In recent years, the most contentious area of commerce emerged out of the Obama Administration’s universal healthcare plan, which included the notorious individual mandate. (1) In National Federation of Independent Businesses v. Sebelius, 2011 , the Supreme Court opined that under Congress’s taxing and spending power, a form of commerce, the Obama Administration could, in fact, require American citizens to take part in the Affordable Care Act (ACA). (35) Listen below as the commerce clause is weighed against the ACA. Be sure to review the video the Individual Mandate & the Commerce Clause under Reading and Resources on the Module 3 Page. (24)
The Reservation Clause
The Tenth Amendment
The Tenth Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (36) This is often referred to as the reservation clause. Examples of reserved powers possessed by states include criminal law, public education, contract law, and family law. (1)
Further, the wording of this clause suggests that the Framers understood that Americans would be more strongly attached to their state and local governments than to the national government and that they would not support reserving all power to that national government. (1) To this end, Alexander Hamilton, in Federalist No. 17 , deemed the states “the great cement of society,” better equipped to protect liberty than processes at the national level. (37)
But have states better preserved individual rights at the state level than their counterparts at the federal end? A simple answer to this question is no. In terms of civil liberties and civil rights, state governments are without the best track record. In the way of civil rights, states have long disregarded minority rights, and it is because of such gross neglect that the power of the national government has expanded. Take, for example, gay rights in America. Because family law is not a power delegated to the national government, state governments have continuously exercised jurisdiction in this area even unto defining marriage as an institution between a man and a woman. To this end, the rights and liberties of same-sex couples were trodden. It would take the supremacy of the U.S. Constitution, by virtue of the Supreme Court’s interpretation of case law, to advance the cause of gay rights — to include marriage equality — in America. (1)
