Supremacy clause: or leash law?

Author:Wintersheimer, Donald C.
Position:State Constitutional Commentary

In Federalist No. 45, James Madison stated that "[t]he 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."(1) He further observed that "[t]he 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 the internal order, improvement, and prosperity of the State."(2) Madison was so concerned about the potential superiority of the states over the federal government that he unsuccessfully proposed that the Federal Constitution authorized Congress to veto any state law.(3) If James Madison were alive today, he certainly would be surprised about the dominance of any state over the federal government. Obviously, exactly the reverse has occurred.

To be sure, there has been a classic argument about the intent of the founding fathers that the United States of America be a republic, as distinguished from a democracy.(4) However, such academic discussions pale by comparison to the practical reality that, as we close the twentieth century, the United States is practically a unitary government composed of states which enact laws that are clearly subservient to the federal will. The most significant clause in the United States Constitution is found in Article VI, Clause 2, which states:

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.(5)

It is significant, I believe, that the directive to observe the supremacy of the United States is placed at the feet of judges in every state. The role, if any, of the federal judiciary appears to be literally nonexistent. The emerging role of the importance of treaties in view of the contemporary activities of the United Nations in regard to Iraq and the United States, who are claimed to be delinquent in their U.N. dues, should be the subject of another legal essay at least, but is not the subject of this Article.(6)

A number of examples of the superiority of the federal government to that of the individual states readily come to mind from contemporary society. Recently, President Clinton announced on the twenty-fifth anniversary of Title IX of the Education Amendments of 1972, that he was authorizing the Justice Department to draft new regulations to extend the law's application to every academic program in every school receiving any federal funds.(7) It is estimated by some students of the law that the federal government sends approximately $96 billion a year in education funds to schools, various training programs, and other local entities.(8) On the other side of the taxation coin is the recent announcement from Washington that legislation is pending that would temporarily prohibit any new state or local tax on Internet commerce.(9) The Internet Tax Freedom Act would impose a moratorium on allegedly discriminatory taxation while a commission studies and develops methods of taxation for electronic commerce.(10)

However, the focus of this Article is to examine the current plan to punish drunk driving more severely. The United States Senate has recently adopted legislation that would set a uniform blood alcohol content.(11) Under this proposed legislation, any state that fails to comply with the federal law would lose millions of dollars per year of its federal highway funds.(12)

Undoubtedly, there are serious and very noble reasons for desiring to crack down on drunken drivers.(13) It can be said to be a universal concern which may transcend state boundaries. Most Americans agree drunk driving injuries and fatalities are catastrophic and must be reduced.(14)

To this end, the United States Senate, in March of 1998, approved a plan to require states to set a uniform...

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