Debate Forum Left, 8/23/11

A.J. Wagner A.J. Wagner

The Constitution has a little secret and it’s supreme

By A.J. Wagner

A.J. Wagner

A.J. Wagner

Really? Are you serious? After complaining incessantly about wasteful government spending, after demanding time after time that government cut costs, the Tea Party comes to the citizens of Ohio asking us to change the Ohio Constitution so as to invalidate certain provisions of the Patient Protection and Affordable Care Act thus destroying its effectiveness.
Actually, this is the third time the Tea Party has tried to get the, so-called, Ohio Health Care Freedom Amendment on the ballot. First, they tried to get it on the ballot in 2010 but came up short on signatures. Next, they asked the legislature to put it on the ballot. After falling short in that effort, they paid signature collectors to get the 386,000 signatures needed to get the issue on the November ballot.

To get where we are, the matter has been to the Ohio Ballot Board three times, the Secretary of State’s office, at least twice, the Ohio Supreme Court twice and to the legislature once. Now we will vote, after which local governments will count the ballots and, if passed, the matter will go back through the courts again. Yet, all of this government action and spending is a total waste because if the measure does pass it cannot be enforced.

Article VI, Clause 2 of the Constitution of the United States of America 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, anything in the constitution or laws of any State to the contrary notwithstanding.”

This is known as the Supremacy Clause. It was deemed necessary by our Founding Fathers and was so important that it was retained in the Constitution of the Confederate States of the South while supposedly fighting a war for state’s rights.

James Madison argued, in the Federalist Papers, the need for the Supremacy Clause in the Constitution. A similar clause was not in the Articles of Confederation (the first U.S. laws) and Madison saw this as a failure when he wrote:

“To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”

To paraphrase: if each state can claim superiority over each other and the federal government, chaos will ensue.

The U.S. Supreme Court has always interpreted the Supremacy Clause to mean that federal law is the supreme law of the land. In the 1982 case of Edgar v. Mite Corporation the U.S. Supreme Court explained that federal law is superior to a state law when either, 1) Compliance with both the federal and state laws is impossible, or 2) State law stands as an obstacle to the accomplishment and execution of the purposes and objectives of Congress.

Here’s the language that will be on the ballot on November 8:

The proposed amendment would provide that:
1. In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.
2. In Ohio, no law or rule shall prohibit the purchase or sale of health care or health insurance.
3. In Ohio, no law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

The entire purpose of this Tea Party referendum is to thwart a federal law. This referendum will fail at the ballot box or in the courts. It will not become enforceable law.

A.J. Wagner is a retired judge who is trying to decide what to be when he grows up. Reach DCP freelance writer A.J. Wagner at

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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