There is this myth that our Founding Fathers wanted a small weak Federal Government. That’s not true, they wanted a mechanism that empowered the states so they could give power to and take power from the Federal Government when they wanted to. That is what our representative democracy is about — checks and balances. These checks and balances is what makes America great and unique in the world.
That mechanism started with Article 2 of “The Articles of the Confederation”, our first constitution:
“Article 2. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” –1777
Article 2 above in our first constitution evolved into:
- the Supremacy Clause of Article 4, Clause 2 of the U.S. Constitution,
- the 10th amendment which clearly says the same thing.
This law was held up in the Supreme Court case of McCulloch v. Maryland (1819). It’s clear. Congress, which represents the states, can pass any constitutional federal law they wish including laws that give or take away powers of the Federal Government.
“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.”
The Congress is the mechanism to delegate a power to, or take a power from, the Federal Government. This majority rule seems fair since the Congress is made up of state representatives. The Founding Fathers gave us checks and balances but we are free to determine our own destiny so long as it is constitutional.
Article 2 of the The Articles of Confederation, our first constitution, and the 10th amendment gives all rights that are constitutional and that Congress has not specified to the states. This means, if a law at the Federal or state level is unconstitutional, it is voided. This also means that constitutional Federal laws override state laws.
The bottom line is the following:
- Congress can create any Federal law so long as it’s constitutional.
- States can create any law so long as it is constitutional and does not conflict with a federal law.
Sometimes abusers of the constitution try to claim that
That’s just a miss-reading of the constitution and bad logic. A more accurate version of that is
if it’s not in the constitution, it belongs to the states unless the states have given it to the Federal government.
The power of our government is not states rights, it’s checks and balances in which states rights is a part of.