Remote Control

We are revisiting your civics courses in elementary and high school in the next few weeks in order to set up a discussion about copyright law.  It is a bit of a meandering walk to get to a point, but I think the views along the way are important and will help make the final discussion make more sense.

As we know, there are both federal laws and state laws.  There are some topics that are covered by federal law, like civil rights laws, and others that are covered by state law, like contract law and interpretation.  The Constitution and the Bill of Rights helps sort this out.   First, the Constitution controls all of the laws of the nation, with the federal law second in command.  States can further legislate on topics that are the subject of federal law.  However, if there is a conflict between the two, federal law controls.

This is due to the “Supremacy Clause” in the Constitution.  Specifically in Article 6, it says, “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, anything in the Constitution or laws of any State to the contrary notwithstanding.”  This also means that the Constitution ALWAYS controls.  If a federal law conflicts with the Constitution, the law cannot be allowed.  Back to the drawing board for the legislature.

The Tenth Amendment in the Bill of Rights makes it clear that the Federal Government is limited, however.  “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.  ”  That is usually interpreted to mean that unless the federal government is specifically given the right to create law on a topic, it is reserved for the states to legislate.  This is the meaning of “state’s rights” that we have been hearing all about in the news.

If it is a federal law, then all fifty states have to apply that law.  If it is a state law, then it only applies to that state.  Each state can have its own approach to that topic.  Because of this, we can have fifty different ways to address one problem.  That is why it is often called “laboratories of democracy” to allow states, as U.S. Supreme Court Justice Louis Brandeis said, to “try novel social and economic experiments without risk to the rest of the country.”

So what does this mean?  It means whenever a legislative body (whether state or federal) passes a law, it has to pass a two fundamental questions:  1) Does the Constitution say the federal government has the right to pass laws on that topic?, and 2) If so, does that law conflict with the laws “above it” (federal law or the Constitution)? If it is not covered by federal law, then it still has to pass the “Does that law conflict with the Constitution?” test.  This looks at both the federal and the state Constitution.  If a law violates either of those, the law cannot continue, and it is time to re-evaluate.

In law suits, courts are often asked to answer these very questions. In fact, it is really the entire job of the Supreme Courts to answer that question for the cases in front of it.  Next week, we discuss the court system a bit more.