Mark Dimunation talks about the Federalist Papers. The collection of 85 essays by Alexander Hamilton, James Madison and John Jay was written between 1787 and 1788 to encourage states to ratify the Constitution. The aforesaid Senators and Representatives, as well as members of the various state legislatures and all executive and judicial officials of the United States and the individual states, shall be bound by oath or assurance to support this Constitution; but no religious test can ever be required as a qualification for public office or trust in the United States. Under the Supremacy Clause, the “supreme law of the land” also includes federal laws enacted by Congress. Within the limits of the powers that Congress receives from other parts of the Constitution, Congress may set rules of decision that U.S. courts must apply, even if state law purports to provide conflicting rules. Congress also has at least the power to completely remove or restrict certain matters of state law that state law may validly say about it. As long as directives issued by Congress are actually authorized by the Constitution, they take precedence over both ordinary laws and each state`s Constitution. (During the ratification phase, anti-federalists objected to federal laws and treaties taking precedence over certain aspects of each state`s Constitution and Bill of Rights. But while this feature of the precedence clause has been controversial, it is clear.) Unlike the states, there is no general assembly law at the federal level that perpetuates the common law, giving federal courts the power to set a precedent like their English predecessors. Federal courts are exclusively creatures of the federal Constitution and federal justice laws. [42] However, it is generally accepted that the Founding Fathers of the United States, by conferring “judicial power” on the Supreme Court and federal courts below section three of the United States Constitution, thus conferred on them the implied judicial power of common law courts to set convincing precedents; This power was widely accepted, understood and recognized by the founding fathers at the time of ratification of the Constitution. [43] Several jurists have argued that the federal judiciary to decide “cases or controversies” necessarily includes the power to decide the precedent of such cases and controversies.
[44] In the case of harm to the common good, where the state only punishes risky behavior (as opposed to harmful behavior), there are significant differences between states. For example, penalties for impaired driving varied considerably prior to 1990. State laws dealing with drug-related crime still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor or medical condition, and others labeling the same offense as a serious crime. During the 18th and 19th centuries. In the nineteenth century, federal law has traditionally focused on areas in which the federal government has been expressly vested with powers in the Federal Constitution, such as the military, money, foreign relations (especially international treaties), customs duties, intellectual property (especially patents and copyrights), and mail. Since the early 20th century, broad interpretations of the trade and spending provisions of the Constitution have allowed federal law to extend to areas such as aviation, telecommunications, railroads, pharmaceuticals, antitrust, and trademarks. In some areas, such as aviation and railroads, the federal government has developed a comprehensive system that anticipates virtually all state laws, while in others, such as family law, a relatively small number of federal laws (which typically cover interstate and international situations) interact with much broader state laws. In areas such as antitrust, trademarks, and labor law, there are powerful laws that coexist at the federal and state levels.
In a handful of areas, such as insurance, Congress has passed laws that explicitly refuse to regulate them as long as states have laws that regulate them (see, for example, the McCarran-Ferguson Act). Some States distinguish between two levels: crime and misdemeanour (minor crimes). [74] In general, most felony convictions result in long prison sentences, followed by conditional sentences, heavy fines, and compensation orders directly to victims; Offences can result in imprisonment of one year or less and a significant fine. To facilitate the prosecution of traffic violations and other relatively minor offenses, some states have added a third level, offenses. These can result in fines and sometimes the loss of a driver`s license, but not jail. I do not think that the primacy clause itself forces this understanding of the preventive effect of federal laws. In my view, the fact that valid federal laws are “the supreme law of the land” and that “the judges of each state are bound by it” means that the judges of each state must follow all legal guidelines that are valid in those laws. In all cases where compliance with any aspect of state law would require non-compliance with a statutory directive validly provided for by a federal statute, judges should conclude that state law is anticipated; If judges have to choose between the application of Land law and the application of a statutory directive validly issued by a federal law, the primacy clause gives priority to federal law. But as long as state law doesn`t contradict federal law in that sense (so judges must decide which one to follow), nothing in the primacy clause prevents judges from following both. Essentially, it is a conflict-of-laws rule that states that certain federal laws take precedence over state laws that conflict with federal law, but when federal law conflicts with the Constitution, that law is null and void.
In this regard, the primacy clause follows the example of Article XIII of the Articles of Confederation, which provided that “every state shall conform to the decision of the United States in Congress convened on all matters referred to it by this Confederacy.” [3] As a constitutional provision proclaiming the primacy of federal law, the primacy clause assumes the underlying primacy of federal power only if that power is expressed in the Constitution itself. [4] No matter what the federal or state governments want to do, they must respect the limits of the constitution. This makes the primacy clause the cornerstone of the entire American political structure. [5] [6] First, the Supremacy Clause contains the most explicit references in the Constitution to what jurists call “judicial review,” that is, the idea that even properly enacted laws do not contain rules allowing the courts to rule to the extent that the laws are unconstitutional. Some scholars say that the reference of the supremacy clause to “laws of the United States to be made for [the Constitution]” itself implies this idea; In their view, a federal law is not “made in pursuance of [the Constitution]” unless the Constitution actually authorizes Congress to do so. Other scholars say that this term simply refers to the legislative process described in section 1 and that poorly enacted federal laws that are constitutionally consistent are different from properly enacted federal laws that are not.