(Thanks, A. :)
Reader AC writes:
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Re: CHD: 'Merck Knew Its Popular Asthma Drug C....
Regarding: The "doctrine of federal preemption” which says that federal law and federal regulations supersede state laws;
This is based on the "supremacy clause" which is found in Article VI, Section 2 of the Constitution... However, if you read this with even just a basic understanding of English, you will see that what is written creates a conditional statement.
The US government has relied on the "supremacy clause" for their claim of authority to make a number of laws which they claim supersede state law and have also relied heavily on it to make anti-gun legislation. However, if one bothers to read and understand the Constitution, it becomes very clear that Article VI, Section 2 makes a conditional statement when it says:
"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."
The phrase, "which shall be made in pursuance thereof" (meaning of course with respect to the Constitution) makes that entire statement conditional. U.S. laws do NOT automatically fall under that same umbrella together with the Constitution of being the "supreme law of the land" unless they first meet that all important criteria of having been "made in pursuance thereof" with respect to the Constitution. New laws must be made to be in harmony and must not be in conflict with the Constitution before they can be considered part of the supreme law of the land... And a number of US Supreme Court rulings support this notion. In addition, all members of Congress and all office holders within our government are required to swear an oath to uphold and protect the Constitution. For these officeholders to make changes to the Constitution via legislation or presidential executive orders, and to enforce any such changes, instead of by following the only prescribed and lawfully required way provided in the Constitution, which is by the method of utilizing the constitutional amendment process, is a clear and direct violation of their oath of office.
Our Constitution is a covenant (a compact or agreement) and has been considered such from day one. This means that it is subject to the same rules of contract law as any other agreement and that if amended, the terms, conditions and directives of the amendment override and supersede everything in the original document. In addition, should there be any conflict between what is the original document and what is contained in the amendment, it is ALWAYS the terms, conditions and the directives of the amendment that must and shall prevail. Our courts make rulings everyday with strict adherence to this rule of contract law.
Now consider also that only via the constitutional amendment process can changes be made to our Constitution. As one very clear example of this consider the fact that it took passing the 18th Amendment to ban alcohol in order to bring about the era of Prohibition. But once the mistake of Prohibition was realized, it then took the passing of another amendment (the 21st Amendment) in order to put an end to Prohibition. Any new act that would have been passed by the Congress or any presidential executive order intended to end or even just alter the manner in which Prohibition was enforced would have been wholly insufficient to have lawfully accomplished this task as the 18th Amendment had made Prohibition "the supreme law of the land". And that as a result of passing the 18th Amendment, it had clearly made it a requirement that in order to make any kind of formal change in the future to the manner in which Prohibition was enforced or reinterpreted, that a constitutional amendment would first be required in order to proceed with changing or altering any part of Prohibition. The Constitution is very clear that only via the constitutional amendment process can the Constitution be changed. And it is abundantly clear that the constitutional amendment process was put into the Constitution in order to guarantee that each and every state would have an equal vote and an equal say in matters having to do with any proposed changes or radical re-interpretations to the Constitution.
Let us not forget that the states (colonies) created the federal government... and that which is created can never be greater than that which created it.
As one clear example of the abusive authority of the federal government, consider that to this current day there has never been a constitutional amendment that addresses or was made with the intent to change or alter any of the provisions of the Second Amendment. Therefore, absent a constitutional amendment that specifically addresses the provisions of the Second Amendment, it stands as originally written and with its original meaning and with its original intent and directives and prohibitions on the government to never be able to infringe upon this right... And thus, "the Right of the people to keep and bear arms Shall NOT be Infringed" remains as the supreme law of the land.
The Constitution created the federal government and set specific limits to its authority (the 18 enumerated powers). And The Bill of Rights took it further by declaring (using the command directives of SHALL and SHALL NOT) further limits to what the federal government could do. If you read the document, you will see that the Bill of Rights has a Preamble which states the reason the founding fathers had for incorporating these first ten amendments to the constitution.
The Preamble to the Bill of Rights written by the Founding Fathers states that they "expressed a desire, that in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added..." This was their reason for these first ten amendments to the Constitution. Their desire and intent were for there to be a small and limited federal government with the ultimate power residing locally with the states and with the people. That was clearly their intent and their goal, and in fact that is pretty much the thought behind what is stated in the Tenth Amendment. It should be clear to anyone who reads them that these founding documents, the Constitution and especially The Bill of Rights, are restrictive in nature. Many of the Rights covered in these first ten amendments contain a "command directive" to the government which prohibits the government from taking certain actions. This is very clearly seen by the use of the words "shall" or in the negative, "shall not". However, the federal government over the years has, in violation of the Constitution, usurped far too many powers and authority which it never had and which it was clearly prohibited from asserting. The people must therefore use and assert the power granted to them under the Constitution to rein in the federal government.
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