Thursday, September 09, 2010

US Constitution Series, Article VI


All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

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.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
This provision of the Constitution is often cited for providing that the Constitution is the "supreme Law of the Land" and therefore it cannot be amended or repealed by the states. Of course the Tenth Amendment to the constitution reserves to the states or to the people all powers not granted by the constitution to the United States, unless prohibited by the constitution. More on that when we get to the Tenth Amendment.

This section also says that all state and federal officer and elected officials shall be bound by oath to support this constitution. The word "bound" does not really appear to have any meaning. In the case of federal executive and judicial officers, they may be impeached only for treason and high crimes and misdemeanors. Is violation of the oath of office with respect to supporting the constitution necessarily a high crime or misdemeanor? Will this section support a claim against a state official? Questions, not answers.

There is one reported case in which a taxpayer who had not filed returns claimed that a state income tax assessment was unlawful because the state and municipal employees involved in his audit had not taken an oath to uphold the United States Constitution. In Burdette v. State Dept. of Revenue, 487 So.2d 944 (Ala. Civ. App., 1986), the Alabama Court of Civil Appeals said,

The terms "public officer" and "state officer" have been given various meanings by the authorities, See generally § 81A C.J.S. States § 80 (1977); 72 Am.Jur.2d States, Territories, and Dependencies, § 62 (1974); 67 C.J.S. Officers § 8 (1978); 63A Am.Jur.2d Public Officers and Employees § 9 (1984). The key characteristic of each is that an officer, public or state, is invested with some portion of the sovereign power of the state, to be exercised by him for the benefit of the public. See, e.g., State ex rel. Gray v. King, 395 So.2d 6 (Ala.1981); Lacy v. State, supra. An individual, to be an officer, must exercise his duties in his own right and not by permission and under the supervision and control of another. Jefferson County v. Case, 244 Ala. 56, 12 So.2d 343 (1943). See generally 67 C.J.S. Officers § 10 (1978). A public employee, on the other hand, is not given any part of the sovereign power. Jefferson County v. Case, supra. Applying these criteria to the present case, it is clear to us that the specified individuals are not public or state officers.

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