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 supremacy clause is one of the most misunderstood and abused provisions in the Constitution.
Nearly every American will tell you the supremacy clause means the federal government is absolutely supreme in all it does.
And every one of them is wrong.
The problem is they leave out the three most important words in the clause.
“In pursuance thereof…”
The federal government is only supreme when its actions are in pursuance of the Constitution. And since the Constitution delegates very few powers to the general government, it isn’t supreme very often.
In fact, the people of the states are supreme and sovereign in the American system. The people of the states created the federal government and delegated to it a few enumerated powers. Yes – the federal government enjoys supremacy within its sphere. But once it moves one inch outside of its sphere, it possesses no supremacy at all.
Alexander Hamilton explained this in Federalist #33.
“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed….But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.”
The Constitution clearly limits federal supremacy to those objects falling within the general government’s delegated powers and not one iota beyond them. When the federal government takes an action outside of its delegate it is, as Hamilton said, “void.”
Revelations that the Detroit Police Department has implemented a facial recognition system with no public input or approval has sparked controversy in the Motor City. The mayor and other city officials have tried to cover up the extent of the program.
The debate in Detroit provides a look into the broader implications of the growing use of facial recognition across the United States and the ever-expanding surveillance state.
Politicians can be pretty clever when it comes to the way they use words. They can say one thing and mean the exact opposite. Detroit Mayor Mike Duggan did just that as the debate over facial recognition technology heated up. The mayor implied that the Detroit Police Department isn’t using facial recognition technology. But if you parse his words carefully, you’ll find that’s not what he said at all.
The city spent more than $1 million on facial recognition technology back in 2017. But Duggan sent out what the Detroit Free Press called “a definitive sounding tweet” that seemed to assert that the police department was not and would not be using the technology.
“Let me be clear: there will be no facial recognition software used with live stream video by the (Detroit Police Department). That’s not what we’re doing, and that’s not ever what was intended.”
As the Detroit Free Press interpreted the tweet and a subsequent video, the mayor was attempting to “shut down any notion that the department was using facial recognition software, a technology which has been widely criticized for issues ranging from privacy overreach to high-error rates, specifically when used on black and brown individuals.”
Duggan was clearly trying to muddy the water and hoping to deflect criticism from a wildly controversial surveillance program. After all, why would a city spend $1 million on technology it wasn’t going to use?
It wouldn’t.
And it is using the technology.
So, was Duggan lying?
That remains unclear, but if you carefully read what he said, you will realize they he never claimed the police department wasn’t using facial recognition at all. He just said it wasn’t using it on “live stream video.”
In other words, police aren’t running facial recognition in real-time. But they are using the technology on still images plucked from reams of footage collected by cameras all around the city. As Urban Institute’s Justice Policy Center senior policy analyst Daniel Lawrence told the Detriot Free Press, this is a difference without any real distinction.
“In all my experience with facial recognition, the way the process and programming works is that it takes a still image from the video. I’m not knowledgeable of any facial recognition software that’s taking real video. It’s taking a still from a video.”
Detroit has developed an extensive surveillance system known as Project Green Light utilizing a network of thousands of government and private cameras throughout the city. The cameras are installed at schools, parks, apartment buildings, immigration centers, gas stations, churches, hotels, fast-food restaurants, and even in places such as addiction treatment centers and abortion clinics.
The program was implemented in 2016 and was generally popular due to the promise that it would deter and help solve crime. As the New York Times pointed out, the system is anything but covert. A flashing green light marks the location of every camera linked into a network that feeds directly into the Detroit Police Department’s downtown headquarters.
Like virtually every government program, the surveillance network has expanded over time. Now, the revelation that police are using facial recognition with the camera system has sparked controversy. According to the NYT, the program matches images captured by the cameras against driver’s license photos and police mug shots held in a statewide police database. The DPD purchased its facial recognition system and put it into operation without approval from the elected Board of Police Commissioners that is supposed to provide oversight and accountability for the department. According to the Metro Times, the commission has evolved into “a virtual rubber stamp for Chief James Craig and Mayor Mike Duggan, who appoints some of the members and helped campaign for the commission chairman, Willie Bell.”
Beyond the broader privacy implications, the use of facial recognition technology is problematic due to its proven lack of accuracy in identifying people with dark skin pigmentation. “We live in a major black city. That’s a problem,” a software engineer told the Times.
As the New York Times noted, “There was also concern that the photograph of anyone who gets a Michigan state ID or driver’s license is searchable by state and local law enforcement agencies, and the F.B.I., likely without their knowledge.”
This is almost certainly happening. A recent report by the Washington Post revealed that the federal government has turned state drivers’ license photos into a giant facial recognition database, putting virtually every driver in America in a perpetual electronic police lineup. In fact, Detroit is just a microcosm of the broader facial recognition surveillance system evolving across the U.S.
The Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.
“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”
George Orwell’s Big Brother would have drooled over the all-encompassing surveillance system quietly under construction in the United States. Facial recognition technology linked to federal, state and local databases can track your every move just by pointing a camera at your face. It effectively turns each of us into a suspect standing in a perpetual lineup.
In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear, including ALPRs, stingray devices and drones. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
In other words, facial recognition surveillance in cities like Detroit has national implications. And similar scenarios are playing out in cities across the country.
The state of Michigan could shut down Detroit’s invasive spy program. A bill introduced in the Michigan legislature would place a total ban on police use of facial recognition.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
Red Flag laws, also called Gun Violence Restraining Orders and Extreme Risk Protection Orders, are gun-confiscation laws disguised as “gun-violence prevention” laws that are being pushed hard at both the state and federal levels. VCDL expects to be fighting Red Flag bills in the Virginia General Assembly in 2019.
Red Flag laws are really unconstitutional “prior restraint” laws that violate the protections found in the Bill of Rights, including the:
Second Amendment (right to keep and bear arms)
Fourth Amendment (protection against unreasonable search and seizures)
Fifth Amendment (right to due process, just compensation, self-incrimination) and
Sixth Amendment (right to confront accusers, cross-examine witnesses, have a public defender)
And all of those violations of the Constitution based solely on an unnamed person’s secret allegation that someone else “might” do something dangerous to themselves or others in the future. The State is supposed to punish those who have broken the law, not those who might break the law.
The person accused of being “dangerous” has not committed a crime and has no notice there is a problem until the police show up, pre-dawn, with guns drawn and confiscate the accused’s firearms. The accused is not given due process to defend himself or herself in court from the accusation for weeks or months after the confiscation. It is up to the accused to prove that he or she is not dangerous! (How do you prove a negative? How do you prove you are not dangerous?) Until such proof is provided to the Court’s satisfaction, the guns are not returned. This could drag on for months, years, or indefinitely!
If a person is “too dangerous” to own a gun, then why is that person left walking around with the rest of us? Can’t that “dangerous” person still commit suicide or harm others if they have the opportunity? The answer to both questions is that Red Flag laws are about confiscating guns, not saving lives.
In Maryland, which recently enacted such a law, two-thirds of the requests for confiscation were deemed frivolous. In other words, most of the requests that were denied were from people wanting to “get even” with someone else by making their lives miserable! But how many frivolous requests got through anyhow?
We do NOT want Red Flag laws in Virginia or anywhere else in America!
WHERE did the federal government come from? It was CREATED by the Constitution.
WHO ratified the Constitution? WE THE PEOPLE, acting through special ratifying conventions called in each of the States. So it was The People of each State who ratified the federal Constitution for their State.
So the federal government is merely the “creature” of the Constitution and is completely subject to its terms.
IT IS IMPOSSIBLE to have a correct understanding of the relation between the federal government and The People unless you understand that the federal government is merely the “creature” of the Constitution. It is not a party to it. The STATES are the parties to the constitutional compact (contract).
THIS is why James Madison said, in his Report of 1799 to the Virginia Legislature on the Virginia Resolutions of 1798, under his discussion of the 3rd Resolution, that THE STATES, as the creators of the federal government, are the final authority on whether their creature has violated the compact THE STATES MADE WITH EACH OTHER. The constitutional compact is between the Sovereign States. The federal government is merely the “creature” of that compact.
That is why the States have the natural right to NULLIFY unconstitutional acts of their “creature”, the federal government.
But our “creature”, the federal government, has taken the bizarre position that the Constitution means whatever THEY say it means.
Oh, do they need smacking down! Does the creature dictate to its creator?
