Sometimes, the most convincing argument for an idea comes from its opponents. This was the case when Representative Metcalfe and Representative Fabrizio debated an amendment to House Resolution 49 in the PA House State Government committee on Tuesday.
HR49 is a Tenth Amendment Resolution in the PA House of Representatives. It claims sovereignty under the Tenth Amendment and serves notice for the federal government to cease and desist from certain mandates. The amendment under consideration by the committee was to remove a part the text, which reads,
“WHEREAS, Many Federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States;”
The proponents of this amendment couldn’t seem to think of a single federal law which might violate the Constitution, so they wanted to remove that text from the resolution. One of the justifications for this removal came from Representative Fabrizio. He suggested that the Supremacy Clause, in clause 2 of Article 6 of the US Constitution, requires that these words be removed.
If you’re a regular Tenth Amendment Center reader, you have already read the Supremacy Clause in the Constitution at least ten thousand three hundred and seventy two times, but I’m going to ask you to read it once more. And this time, along with the words, also pay attention to the cadence you use.
Pay attention to when your mental pauses occur and to how the words are grouped.
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.
As a regular reader, you also know that a key phrase in the Supremacy Clause is the phrase, “which shall be made in Pursuance thereof”. A constitutional law is in one that is made in pursuance of the Constitution. A law which is not made in pursuance of the Constitution violates the Tenth Amendment. It’s that simple.
In the video below, Representative Fabrizio argues for the amendment to remove the specified text from the resolution and Representative Metcalfe, the chair of the committee, argues against it. Representative Metcalfe was on the right side of the argument, but I’m afraid he made the less compelling case. On its face, even though he gets it wrong, it seems to me that Representative Fabrizio would have prevailed in the debate unless the audience was already familiar with the text of the supremacy clause.
I would ask you now to watch this video, paying careful attention to the cadence and the word grouping Representative Fabrizio uses when he reads from the supremacy clause at 0:43.
The video of the full, sixty minute hearing can be found here. Sadly, at the high speed of the debate, Fabrizio’s argument would seem solid to someone who didn’t know better. He cites the Constitution and quotes legal scholars and what he says seems to make sense.
Representative Metcalfe, on the other hand, has the right answer, but in my opinion, the way he supports it is much more complicated than necessary. Yes, it is always important to look at the supremacy clause in the context of the entire Constitution, but you don’t have to do that to know what’s wrong with Representative Fabrizio’s argument. There’s a much simpler way to make the case. As readers of this site are likely aware, all you need to do is to highlight the phrase, “which shall be made in Pursuance thereof”. If you do that, the question answers itself.
Here’s the question that I think is most interesting about their dialog. When you read the Supremacy Clause to yourself earlier, did you use a cadence anything like Representative Fabrizio’s rhythm? I didn’t. He read right through the first comma, then paused where there is no comma, right after “United States”. I honestly wonder if I could read it aloud using that rhythm if I tried to. He then stopped and repeated “and the laws of the United States” which further removed the subsequent phrase from its context. Never again in the remaining minutes of the discussion does he repeat the phrase “which shall be made in Pursuance thereof”.
Why would he have read that clause in such an unnatural way? Why read through the comma? Why pause after “United States”? I think I know. I think that Representative Fabrizio knows the same thing that we tenthers know. He knows that the magic words in that phrase — the words which determine whether a law is supreme or invalid — are the words “which shall be made in pursuance thereof”. As Robert G. Natelson writes, in The Original Constitution: What it Actually Said and Meant (p. 60),
Federal actions taken outside the scope of federal power were not, of course, to be law at all.”
I think Rep. Fabrizio knows this and that he did everything he could to obscure that fact – very effectively, I might add.
In the end, the committee spent so much time debating amendments that they didn’t get to vote on the resolution, so the resolution goes back on the shelf, but I think that this exchange was very illuminating. Usually, our intellectual opponents just omit the “pursuance thereof” phrase when trying to claim that the supremacy clause overrules the Tenth Amendment. If nothing else, Representative Fabrizio’s cadence manipulation was a very creative rhetorical technique. In the end, though, I think this dialog shows us that underneath it all, even people who claim otherwise know that the supremacy clause does not turn an unconstitutional law into a constitutional one.
The domain of the supremacy clause is the realm of constitutional legislative actions. The domain of the Tenth amendment is the realm of unconstitutional ones. The two are not in conflict. They are complementary. It seems to me that if you think carefully about Representative Fabrizio’s rhetorical techniques, they serve to demonstrate this point.