Supremacy clause

Now is an excellent time to discuss the Constitution and the Supremacy Clause.

Here’s the clause itself, in Article IV:

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.

So what does this mean?

Briefly, it means that the feds get the ultimate say as to what’s legal and what’s not. But in practice, things are more complicated.

States cannot contradict federal law. In other words, federal law preempts state law. So if a federal statute forbids or explicitly permits something, or if a federal court has ruled on something, the states have to live with that. Here are two examples:

In Obergefell v. United States (2015), the Supreme Court held that the 14th Amendment protects the right of same-sex couples to marry. Pursuant to that opinion, states can no longer prohibit same-sex marriage. The many state statutes and state constitutional clauses prohibiting these marriages are invalidated.

Under federal law, possession or use of marijuana is prohibited except under some very limited circumstances. It’s a Schedule I drug, subject to the same restrictions as LSD and heroin. Now, states can decide for themselves whether marijuana will be prosecuted under state law, and many have opted not to. But they can’t stop the feds from doing their thing. So if I light up a joint in California, the state and local police won’t come after me. But the feds might (although that’s unlikely unless I’m a big-time dealer).

If the federal courts hold that a particular right is not protected by the US Constitution, the states can still grant that right under their state constitutions. For instance, Oregon has interpreted its own freedom of speech clause more broadly than the feds have. So although the feds say obscenity can be prohibited under federal law, Oregon does not prohibit it under state law.

An upshot of all of this is that the states can generally give their citizens more freedoms than the feds do, but not fewer.

So if you’re frustrated by recent legal developments within the federal government and worried that particular rights may be curtailed? You can put on pressure locally to make sure your state provides the protections that are important to you.

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