Full Transcript - Myth Of Federal Supremacy
Full Transcript - Myth Of Federal Supremacy
Watch Episode #60 - The Myth Of Federal Supremacy
Congressional myths and misconceptions
One of the most common Constitutional myths and misconceptions that I come across has to do with the notion that our natural rights and individual liberties would best be protected by turning to the Supreme Court or to Congress to use the Bill of Rights or to use the Federal Constitution to basically police the states and ensure the states don’t violate our rights.
These are all incredibly common opinions to come across and I imagine many people wouldn’t think twice before concurring with that assertion.
This has been the prevailing attitude in America since the beginning of the progressive era.
What makes this topic so interesting is that this emerges out of the progressive movement of the early 20th century, but it is not a belief limited to progressives. We find this idea appearing all over the political spectrum from progressives to democrats, republicans, constitutional conservatives and even libertarians will endorse this notion in at least some instances. A great example of this is the Brunson case I covered earlier this year. Colloquially, better known as Docket 22-380. In Brunson v Adams Trump supporters were upset that Congress did not investigate the allegations of election fraud they made in the 2020 Presidential election. They believed Congress just accepting the results without investigation was somehow unconstitutional, it was a violation of their oaths of office. Beyond the fact that they were demonstrating an all-too-common belief that the definitions of “constitutional” and “unconstitutional” are simply “everything I personally want the government to do” and “everything I, personally, do not want the government to do” (respectively).
One of the biggest problems with this case had to do with its supporters drawing the conclusion that simply because this was such an important issue that obviously the people who can and should fix it is the U.S. Congress. When Congress’ actions didn’t meet their expectations they went to the Supreme Court, because they concluded the only people important enough to put Congress in their place must be the high court.
This despite the mountains of evidence people such as myself offered that the validation of these election results are powers the Constitution gives solely and unambiguously to the governments of the several states. Many people held tightly to their belief that when Congress elected not to exercise a power they were never delegated, that this constituted a violation of the Constitution…
This is not unlike an argument I often run into with libertarians who hold tight to the belief that because our individual rights and liberties are so exceedingly important that the Supreme Court should be using the federal constitution and the bill of rights to protect us from violations of those rights by state governments. I completely understand this impulse, because we obviously don’t want governments violating our rights. But in reality all governments at every level are going to violate our rights, that is simply the nature of government, they are organically antithetical to individual liberty and freedom.
While I am understanding of and sympathetic towards this impulse, the issue is that this impulse is misplaced because it places far too much authority in a central power. It centralizes and monopolizes power at the federal level in a way it was never intended to be.
It is with all this in mind that I want to approach the main topic of this video. I recently received an email from a friend of the show offering me some feedback on another earlier episode. At one point they would give what I thought was a very interesting defense of this general topic, which I would summarize as “protecting our rights through centralization”. And I greatly appreciate her agreeing to let me share that portion of the email with you all so I can discuss and critique this inclination towards protecting rights and liberties through centralization of power.
[We should] address people's rights, by state. There are so many slight differences from one state to another, people are always getting themselves in legal binds, because of officer encounters. To prevent this type of issue, is the reason that Congress was given any powers to create civil and criminal federal laws at all, was to avoid this kind of confusion. Basically that power only occurs when the separate states, can land on the same law. When that occurs, congress or SCOTUS decides in accordance with the constitution. Than the states have to enforce the federal law, and repeal the state [level] crime.
In today's society, the [levels] of government have stacked the deck against the rights of the citizens. Many people don't know where to even start. The courts failing to hold all [levels] to the same restrictions, not allowing arbitrary rulings. Text and history should have always been the law. The founders knew how to and how not to embed doubt or confusion.
Lets take each of these issues on one by one and ask, are these starting assumptions correct:
Has the inclination to leave the vast majority of civil and criminal laws to the legislatures of the several states been a mistake?
Does the Constitution give Congress a general power to make our civil and criminal laws?
Did the founders believe the role of the federal government was to create a single, uniform code of internal laws?
Are the States duty bound to enforce all federal laws and can the federal government force the States to repeal their own laws?
Additionally, we will be looking at the Supremacy Clause as well to answer the question “Is federal law the supreme law of the land.”
To start, it’s worth making an explicit point that the nature of our federal government is a government of expressly delegated powers. They have only those powers explicitly enumerated in the constitution-- While the States reserve all powers, except the select few expressly delegated to the federal government. The framers and ratifiers who gave this document legal force said this a thousand different ways. In Federalist 45 James Madison states:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and internal order, improvement, and prosperity of the State…..1
The legislatures of the States have whatever authority granted to them by their State Constitutions to enact criminal codes applicable to those within the borders of their States.2
Here Madison affirms a foundational premise that there is nothing that suggests the federal government has a general power to create an internal system of criminal laws, that to the contrary, this power is one the several states unambiguously retain.
Anti-Federalists like George Mason would point to the necessary and proper clause and argue it leaves the door wide open for the federal government to decide federal criminal laws could be created under a pretext of being necessary and/or proper.
The clause would allow Congress to “constitute new Crimes, … and extend [its] Power as far as [it] shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights.”3
Federalist 14 clarifies that:
In the first place it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments which can extend their care to all those other objects, which can be separately provided for, will retain their due authority and activity. 4
Even the most ardent and unapologetic nationalist figures who had a direct hand in drafting the constitution-- Men such as James Wilson would say the very same thing… Such as James Wilson’s famous State House Speech of October 6, 1787
I have done entire videos and articles (plural) on his State House Speech; But the central premise is:
When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete.
But in delegating federal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case everything which is not reserved is given, but in the latter the reverse of the proposition prevails, and everything which is not given, is reserved.5
So, what Wilson is saying here is that the federal government may only do as much as the Constitution allows them to do and it’s up to the States to do everything else. So, if our federal government is a government of expressly delegated powers, the next obvious question is, what are those powers and do they provide the federal government a wide latitude for legislation concerning civil and criminal law?
Enumerated Powers and Criminal Law
Congress’ expressly delegated powers over which they have the authority to legislate lies almost entirely within Article I, § 8 that identifies 17 Enumerated Powers
So, the Constitution did not delegate to Congress any general powers to make criminal laws. It does grant a few, very limited powers to make criminal laws. Congressional authorization to make criminal laws fall into a handful of categories.
Those made pursuant to express authorizations of four specific crimes;
Those made under the “necessary and proper” clause;
Those made for the few tiny geographical areas over which Congress has “exclusive Legislation”;
Those governing the military; and
Those made pursuant to constitutional amendments.
Overview of Expressly Authorized & Specified Crimes
Art. I, § 8 grants to Congress authority to define & punish counterfeiting, piracies and felonies committed on the high seas, & offenses against “the Laws of Nations”[1]. Additionally, Article III, §3 grants to Congress a restricted power to declare the punishment of Treason.
The meaning of the phrase “law of Nations” in this clause is sometimes mistaken as referring to Vattel’s Law of Nations, however, the records of the Continental Congress and later state ratification debates demonstrate that the meaning of this term to the framers and ratifiers who gave the Constitution legal force is simply “International law”.
Webster’s American Dictionary (1828) defines “laws of nations” as, “the rules that regulate the mutual intercourse of nations or states. These rules depend on natural law, or the principles of justice which spring from the social state; or they are founded on customs, compacts, treaties, leagues and agreements between independent communities.”6
To give one example of a “law of nations” based on custom: From antiquity to modern times, envoys between warring armies have been entitled to safe conduct while on their missions. This is the source of the phrase “don’t kill the messenger.” This explains the very dramatic scene in the film 300 where Leonidas’ threats made against a Persian messenger are decried as “madness”. Our concept of “diplomatic immunity” is thus an ancient one.
Overview of Necessary and Proper Clause
Article I, § 8, Clause 18 grants to Congress the power: “[T]o make all Laws which shall be necessary and proper for carrying into Execution …all …Powers vested by this Constitution in the Government of the United States…”.
This necessary and proper clause allows Congress to make criminal laws when necessary to enforce powers vested by the Constitution in the federal government.
This worried people, for a number of very real and important reasons that I wrote a book about called Constitutional Sleight of Hand which I would highly recommend everyone check out.
But for our discussion today I think it will suffice to briefly look to Madison defense of the necessary & proper clause.
In Federalist No. 44, Madison said, regarding the peoples’ fears of usurpations by Congress:
What is to be the consequence, in case the Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them…the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers… It is not a grant of new powers to Congress.7
When we apply this clause to the foregoing clauses of Article I § 8 we can identify several incidental federal lawmaking powers.
Congress has authority under the necessary and proper clause to make criminal laws enforcing the:
Taxes, Duties, Imposts and Excises authorized by Art. I, §8, cl.1;
[T]o make criminal laws prohibiting the filing of false statements or claims in Bankruptcy Court
[A]nd to make criminal laws forbidding the importation of slaves after 1808 (Art. I, §9, cl. 1).
Article II, §4 mentions impeachment of civil officers for, among other things, “bribery”; so it would be necessary and proper for Congress to pass a criminal statute prohibiting the accepting of bribes by civil officers of the United States.
Also, because the main duty of the federal judiciary created by Art. III is to conduct trials [in the limited category of cases which they are permitted to hear], and that means parties & witnesses. Parties & witnesses must be required to tell the Truth. So, it would be necessary and proper for Congress to make laws declaring perjury and lying under oath in federal court criminal offenses.
These examples are not exclusive – there are doubtless additional criminal laws which would be appropriate exercises of the necessary and proper clause. But it is important to note that private citizens would rarely, if ever, be in situations where these criminal laws would apply to them!
Geographical Jurisdiction
Article I, §8, clause 17 authorizes Congress to exercise “exclusive legislation in all Cases whatsoever” over the small, teeny tiny little defined geographical area of the seat of government. Plus forts, dock-yards, magazines, arsenals, and the like.
In The Federalist No. 43, James Madison explained the need for a “federal district,” subject to Congress’s exclusive jurisdiction and separate from the territory, and authority, of any single state:
The indispensable necessity of complete authority at the seat of government carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government, on the State comprehending the seat of the government for protection in the exercise of their duty might bring on the national councils an imputation of awe or influence equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.8
It is worth noting that private citizens would not be affected by these laws unless they are inside the District of Columbia, military bases, dock-yards, and the like.
Rules Governing The Military
Article I, § 8, cl. 14 authorizes Congress “To make Rules for the Government and Regulation of the land and naval Forces.” Under this grant of authority, Congress has properly enacted The Uniform Code of Military Justice, the criminal code which governs members of our military forces… This covers all the “standard” criminal offenses plus additional crimes uniquely appropriate to those in the military: failure to obey a lawful order, dereliction of duty, absent without leave, desertion, conduct unbecoming an officer, etc. Again, it is important to note that civilians are not affected by the criminal code which governs our military forces.
Those Pursuant To Constitutional Amendments
Some of the Amendments to the Constitution authorize Congress to enact laws to enforce them: The 13th Amendment would authorize Congress to make laws criminally punishing those who keep slaves. The 18th Amendment (now repealed) authorized Congress & the States to make laws criminally punishing those who manufactured or trafficked in intoxicating liquors. The 14th, 15thAmendments share in having the same clause in the 13th amendment authorizing them to make appropriate legislation, but these amendments restrict only the several States, not the citizens thereof… So, Congress’ criminal jurisdiction over private citizens under all Amendments is limited to those who keep slaves.
Supremacy Clause
One point that will inevitably be raised to disprove (or more properly, attempt to disprove) the argument I am making here is that I am forgetting or overlooking the supremacy clause. They will insist the supremacy clause means the federal government is absolutely supreme in all it does... And every one of them is wrong. A similar claim I often run into is “The Supremacy clause means federal laws always supersede state laws.” Anyone making these claims is, at best, innocently ignorant about this clause’s meaning and scope or is willfully lying about it.
Both of these fallacious arguments leave out an indispensable part of this clause.
What It actually says is:
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.9
The most important and least regarded part of this clause is “In pursuance thereof…”
The federal government is only supreme when its actions are in pursuance of the Constitution. And since the Constitution delegates very few powers to the general government, it isn’t supreme very often.
Let’s not forget that the people of the several states are supreme and sovereign in the American system. The people of the several states created the federal government and delegated to it a few enumerated powers. Yes – the federal government enjoys supremacy within its sphere. But once it moves an inch beyond its sphere, it possesses no supremacy at all. A point Alexander Hamilton drives home in Federalist #33:
…[I]t will not follow from this doctrine that acts of the larger 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…10
Hamilton then goes on to explain that, far from expanding the powers of the federal government, the Supremacy clause, properly understood, is a limitation on federal power
It will not, I presume, have escaped observation that [the Supremacy Clause] 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.11
This brings us back to the question of whether or not Congress has the authority to make states enforce federal law and repeal state laws. Does the Supremacy Clause mean the federal government can coerce states to enforce federal law as long as the federal law is made in pursuance of a constitutionally delegated power? Actually no. Even such a law as that does not impose any duty on the several states to enforce.
James Madison and the National Veto
Looking to text, history and tradition we can find a number of pieces of evidence that the framers and ratifiers who gave the Constitution legal force did not want the federal government to have that much power over the State governments. During the Philadelphia Convention James Madison advocated for a provision that would allow the national legislature to veto acts of the state legislatures.
Resolved. that the national Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the confederation — and moreover to legislate in all cases to which the separate States are incompetent: or in which the harmony of the United States may be interrupted by the exercise of individual legislation. to negative all laws passed by the several States contravening, in the opinion of the national Legislature, the articles of union, or any treaties subsisting under the authority of the union.
~Virginia Plan, Article VI. June 13, 178712
Ultimately, this provision was roundly rejected by the delegates to the convention because their biggest fear at that time was that degree of centralization of power would make the federal government too big and too strong to the point that it would overwhelm the individual States. To his credit, Madison would acquiesce to the validity of these concerns. He became sensible of the obstacles to such an arrangement, presented in the extent of the Country, the number of the States and the multiplicity of their laws.
Further challenges to this notion of federal supremacy in our text, history and tradition comes from the anti-commandeering doctrine.
The anti-commandeering doctrine prohibits the federal government from “commandeering” state personnel or resources for federal purposes… In effect, the federal government is constitutionally prohibited from requiring states to use their personnel or resources to enforce federal laws or implement federal programs. State and local governments cannot directly block federal agents from enforcing federal laws or implementing federal programs, but they do not have to cooperate with the feds in any way. For instance, a local sheriff cannot block ATF agents from enforcing a federal gun law, but the ATF cannot force the sheriff’s office to participate in the enforcement effort.
The anti-commandeering doctrine is a natural consequence of the tenth amendment’s provision that all powers not expressly delegated to the federal government in the constitution, nor prohibited by it to the states are powers reserved to the States and the people. This doctrine has been affirmed in five landmark cases:
Prigg v Pennsylvania (1842)13
New York v United States (1992)14
Printz v United States (1997)15
NFIB v Sebelius (2012)16
Murphy v NCAA (2018)17
The propriety of this doctrine can be found long before the Supreme Court first affirmed its existence in 1842. Such as Federalist #46:
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.18
This concept was further elaborated in 1798 when James Madison and Thomas Jefferson penned the Virginia19 & Kentucky20 Resolutions, as well as Madison’s Report of 1800
The “Wisdom” of Uniform Laws
So, even if there is no constitutional basis for giving Congress a general power to make criminal law, what about its practical basis? Wouldn’t it make more sense to have a uniform set of laws. Wouldn’t that protect our rights and liberties better by making sure we are all subject to the same law.... What reason is there to continue to utilize a federal structure of criminal law, rather than a national one?
There certainly is a prima facie logic to this line of reasoning. But this argument overlooks a vital bit of context, namely the original understanding of the checks and balances in our government.
What has been unfortunately left out for much of our history, since the end of the civil war, is the fact that federalism is itself a crucial check on the power of the federal government. The more diffuse power is, the harder it is for anyone to abuse that power. Plus if and when someone manages to successfully exploit the power they have been delegated, there is simply less of it to abuse. This is one reason why the Senate alone was given the power to confirm executive officers and judges and why they ratify treaties. People easily forget the Senate was meant to be an instrument of the states. It was only in 1913 that that changed with the passage of the 17th amendment.
In brief, the reason Senators were originally appointed by the state legislatures is again a diffusion of power. Some federal legislative power is given to the people of the several states through the house of representatives and some power was given to the states themselves through the appointment of senators.
Furthermore, there was a reason that pretty much every prominent figure from among the framers and ratifiers all identified one of the greatest threats to individual liberty as a consolidation of power.
Patrick Henry put it this way in the Virginia Ratifying Convention:
Dangers are to be apprehended in whatever manner we proceed; but those of a consolidation are the most destructive. He later warned “Consolidation must end in the destruction of our liberties.”21
Thomas Jefferson echoed this view in a letter to Joseph C. Cabell:
What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing & concentrating of all powers into one body.22
Even James Wilson, arguably the most staunch national government supporter from among the Constitution’s framers and ratifiers would concede this point.
To support, with vigor, a single government over the whole extent of the United States, would demand a system of the most unqualified and the most unremitted despotism.23
In short, while the debates over ratification were often over consolidation – almost no one rejected the notion that massive centralization of power was a bad thing. The arguments were mostly over whether the proposed constitution would lead to such an outcome or not.
George Mason understood that one-size-fits-all “solutions” to any and every problem under the sun would be impossible, on top of being undesirable.
Is it to be supposed that one National Government will suit so extensive a country, embracing so many climates, and containing inhabitants so very different in manners, habits, and customs? It is ascertained by history, that there never was a Government, over a very extensive country, without destroying the liberties of the people.24
And today, in a union of states with more than 300 million people – and a wide range of political, economic, social and religious viewpoints – these problems are only growing worse.
James Madison, in a letter to Thomas Jefferson would observe that where power is in the hands of the few, it is natural for them to sacrifice the many to their own partialities and corruptions.25
Where power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions.
So when we see corruption all around us – in politicians, agencies and elsewhere – we shouldn’t be surprised it’s happening. The root cause, of course, is too much power in too few hands.
That’s the bad news. But there’s good news too. If consolidation ends in the destruction of our liberties, the key to regaining liberty is “un-consolidation,” or to use an actual word – decentralization.
Decentralization is an indispensable element of federalism. I would argue there is an inverse relationship between the diffusion of power and the danger it poses.
For more than a century the government has been trying to convince people that the protection of our rights will be secured if we focus our attention on Washington D.C. to make sure we are sending the right people to make the right choices to get us all headed in the right direction.
People always tend to think that when problems arise it’s the federal government squandering or misusing their delegated authority, few people ever seem to consider the possibility that it is the power itself that is to blame. The contingencies, context and conditions in which power is misused are transient.
That is why a shuffling of this power back and forth between opposing parties will always fail to effect meaningful change. It’s the claim this consolidation of power was legitimate in the first place that is the problem.
Perhaps the best example of this was the Trump Presidency and the unique level of panic that often manifested in people who opposed him. They may not have realized this, but no one was scared of Trump the person. Trump has been on this earth for over 70 years and other than a general distaste for him, no one ever feared for their life because Trump walked the earth. He could do what he wanted because he didn't affect your life. He had no control over you. What you feared was the power the presidency gave to Trump.
The key, then – is to reject any effort to give the central government more power, even when you might like how it uses that power at that moment. Eventually, other politicians will wield that same power – and use it in ways you never intended.
Never forget: The power to do good necessarily comes with the power to do evil.
Likewise, the power to protect is the power to control.
Furthermore, Cartago Delenda Est
“The Federalist Number 45, [26 January] 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-10-02-0254. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 428–432.]
Id.
George Mason: Objections to the Constitution (October 1787), in Kaminski and Saladino, Documentary History of the Ratification of the Constitution, 8:41–46.
“The Federalist Number 14, [30 November] 1787,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-10-02-0185. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 284–289.]
James Wilson. “James Wilson's State House Speech”. Speech, October 6, 1787. From Teaching American History. https://teachingamericanhistory.org/document/state-house-speech/
“Law of nations.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/law%20of%20nations. Accessed 20 Oct. 2023.
“The Federalist Number 44, [25 January] 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-10-02-0251.
[Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 420–426.]
“The Federalist Number 43, [23 January] 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-10-02-0248. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 411–418.]
Article VI, § 1, Clause 2. https://constitution.congress.gov/constitution/article-6/
“The Federalist No. 33, [2 January 1788],” Founders Online, National Archives, https://founders.archives.gov/documents/Hamilton/01-04-02-0190. [Original source: The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788, ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp. 465–469.]
Id.
Prigg v. Pennsylvania, 41 U.S. 539 (1842). https://supreme.justia.com/cases/federal/us/41/539/
New York v. United States, 505 U.S. 144 (1992). https://supreme.justia.com/cases/federal/us/505/144/
Printz v. United States, 521 U.S. 898 (1997). https://supreme.justia.com/cases/federal/us/521/898/
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). https://supreme.justia.com/cases/federal/us/567/519/
Murphy v. National Collegiate Athletic Association, 584 U.S. ___ (2018). https://supreme.justia.com/cases/federal/us/584/16-476/
“The Federalist Number 46, [29 January] 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-10-02-0261. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 438–444.]
“Virginia Resolutions, 21 December 1798,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-17-02-0128.
“Resolutions Adopted by the Kentucky General Assembly, 10 November 1798,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-30-02-0370-0004.
Patrick Henry. “Speech Delivered at the Virginia Convention Debate of the Ratification of the Constitution”. Speech, June 07, 1788. From Teaching American History. https://teachingamericanhistory.org/document/speech-delivered-at-the-virginia-convention-debate-of-the-ratification-of-the-constitution-june-7-1788/ (accessed October 20, 2023).
“Thomas Jefferson to Joseph C. Cabell, 2 February 1816,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/03-09-02-0286. [Original source: The Papers of Thomas Jefferson, Retirement Series, vol. 9, September 1815 to April 1816, ed. J. Jefferson Looney. Princeton: Princeton University Press, 2012, pp. 435–439.]
"James Wilson Address in Pennsylvania Ratifying Convention. November 26, 1787,". Elliot's Debates: Volume 2. Convention of Pennsylvania. Monday, November 26, 1787, P. M., https://teachingamericanhistory.org/resource/elliot/vol2/pennsylvania1126/
George Mason, Virginia Ratifying Convention, 4 June 1788., The Founders' Constitution. Volume 1, Chapter 8, Document 37, http://press-pubs.uchicago.edu/founders/documents/v1ch8s37.html. Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.
“From James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0218. [Original source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson. Charlottesville: University Press of Virginia, 1977, pp. 295–300.]