Slaves, Sales, and the Supremacy Loophole Now

(Pop quiz: Does the U.S. Constitution’s Supremacy Clause mean that no law is superior to the Constitution? Preserve your answer; the quiz will be implicitly repeated at the end.)

Our Constitution says that it is the supreme law of the land. This is true only in part. Beyond that, it is misunderstood, probably because of how most of us were first taught it. For doubters that there is enforceable law superior to the U.S. Constitution, and for those who are sure that there is not, in the way that humans enforce law against each other, such as in courts and by war, here are three hypothetical cases by which you can see that it exists and, not only that, that there are two bodies of law that are above the Constitution, both vital and both large.

These cases are not only hypothetical, they are undesirable, some especially so, but no less capable for illumination.

The Slave

I wish to enter into a contract. It will have two sections.

By this contract, I will purchase one of you into slavery. You will be my slave. Your property will become mine. If you are already wealthy, that only predicts that you will be a very good slave and I will pay you accordingly. I will pay you for entering into the contract. You may use the money I pay you for anything you want, except for interfering with your enslavement to me. You may never leave and you may never fail to perform your duties. The contract will be for your lifetime. If you have any children after your enslavement commences, I will be pleased. I will help you groom your children to become excellent slaves.

Your duties will be such as I assign to you. You will take care of my home. You will give me sex. You will take care of my guests. If I tell you to, you will have sex with my guests. (I am an equal opportunity enslaver.) You will perform all of your duties with the utmost skill and enthusiasm and you will request more duties even if you are too busy to do anything more.

Your compensation will be such as I give you. That may include such food, clothing, shelter, health care, and rest due to sheer exhaustion as I give you out of the goodness of my heart. Should I decide that you are no longer useful to me and, whether useful to me or not, I no longer wish to compensate you, you will still remain my slave and you may go nowhere else. When you die, you may thank me as you are going to a pretty good place, considering that you’re a slave.

You will embrace and practice such religion as I assign to you and on a schedule that I assign to you. You will speak and, if you know how to write, write in only such language and wording as I assign to you. Whether you may teach reading, writing, or ’rithmetic to anyone else is up to me to decide.

You may not do or omit anything for which I have not given you permission. Any permission I give you I may revoke at any time for any or no reason.

Should I deem correction necessary, you will accept and agree with such correction as I apply.

Enforcement of all rights and obligations under the contract will be at my sole discretion.

There is no appeal.

All of this will be made clear in the first section of the contract.

You do not need to read the contract before you sign it. I will have taken care of reading it already and I am completely honorable, as the entire community already well knows. The highest level of men at the state capitol will vouch for me. You may take my word for whatever I say is or is not in the contract. Upon your signing, I will execute and deliver a copy of it to you, but, as commencement of your enslavement will be immediate and therefore your property becoming mine will also be immediate, the copy being itself property, you will immediately give the copy back to me, probably never to be seen again, which will be a relief to you. Your reading it at that point would merely interfere with your duties as a slave, and such interference is not to be tolerated, as I am sure you will agree, as the contract requires that you always and unflinchingly agree with me, your slavemaster.

The second section will say only the following: “This contract is the supreme law of the universe on the subject of this contract.”

We sign. I pay you. You begin your enslavement. I use your services.

It seems that you soon become a tad unhappy. You notice a telephone.

Shortly afterwards, a prosecutor comes to visit me. I gladly welcome her. She presents me with an indictment. It is lengthy and fascinating. I am being charged with sexual assault, other assault, grievous bodily harm, false imprisonment, enslavement, violation of wage and hour laws, violation of occupational safety and health laws, inadequate medical care, practicing as a physician without a license, practicing psychology without a license, engaging in the unauthorized practice of law on behalf of my slave, using the color of the authority of the state to establish a religion for my slave, child abuse (if there was a birth), conversion of another’s property, imposing a restriction on use of the other party’s property (the money I paid for entry into enslavement), and many other charges too colorful to take time to itemize here.

I find much in common with the prosecutor. I absolutely support the need to enforce every law to the letter, large or small. Wherever law is violated, it must be immediately enforced with zero tolerance for any unlawful deviation. It is vital that society be orderly or it will collapse. We can’t have a collapse, so I praise the prosecutor.

Note that I do not claim that what I did was no big deal and that the prosecutor should prosecute the really big crimes, like murder. No, that’s too vague. Instead, I intend to be quite precise. I state that what I did was no crime at all. It was not illegal at all. Everything I do is absolutely within the law. I am explicit to the prosecutor about the lawfulness of my conduct.

Furthermore, I agree with and admit every allegation of fact stated in the indictment and can almost certainly provide more. I tell the prosecutor that she has done an unsurpassed job in detailing facts and finding laws that they would violate.

And I would like the prosecutor to continue zealously guarding the laws against all of the violators who may fail to obey as required. I will even be glad to donate to the maximum of my ability to her next political campaign for the office, if the law permits such a contribution and if making the offer is not itself a violation of law.

Therefore, in order that she can focus her time and maximize her productivity, I give her a copy of the contract. I suggest she examine the supremacy section. She could correctly infer that it denies her office all jurisdiction over the contract and over acts of commission and of omission done pursuant to the contract. Since the contract is the supreme law of the universe and the contract provides for no enforcement except at my discretion, without my consent no one besides me may enforce any legal provisions with respect to the contract. No prosecutor, no private attorney, no court, no administrative agency, and not the President of the United States has subject-matter jurisdiction. Even an amendment to the law of contracts or to the Constitution would fail to apply, because the supremacy section applies to the whole universe and my prior consent to any such amendment will be required or the amendment will not apply to the contract.

I also apologize, on behalf of you, my slave, as I am entitled to do on any matter whether you (my slave) would agree or not, for your phone call that took up the prosecutor’s time.

And, as a final word, I inform the prosecutor that, in the event I ever need to correct you or any other slave of mine, I do so only to the minimum extent necessary, usually with no more than a word, as it would offend my refined upbringing to correct in any manner that might seem a touch excessive. I am sure you, my slave, will shortly come to understand that the duty of enthusiasm is contractually required.

I tell the prosecutor that she will also be pleased to know that the slave’s baby (your baby) is healthy and will make a superb addition to my stable of slaves. The training has already begun.

My butler shows the prosecutor the door.

I get on the intercom and say, “Slavey —”, because I address you properly, never by name. You are my slave, so you do not deserve a name, and I took it from you, and you responded to my wise decision with a display of pleasure. Now being on the intercom, I say, “Slavey, I need a word with you, immediately.” I hear your footfalls, running towards me. I will correct you. I am fortunate.

But, alas, the prosecutor is evidently not persuaded.

I find myself in court. The judge gives me the judicial equivalent of a swift kick in the rear to the nearest prison. The judge likely spoke directly with you, my slave, in which case the judge interfered with my property rights. Only I should have spoken with you, my slave, and you should politely have refused to answer the judge. If the judge had freed you, you, being my well-trained slave, would not have known what to do. Nonetheless, the judge ruled, no doubt misunderstanding what was best for your welfare.

I, however, have the right of appeal. The judge, therefore, must support said kick by writing a conclusion of law. In the face of my claims about contract law and the judge having been arbitrary and capricious and doing me irreparable harm, to assist the appellate court in upholding the lower court’s decision it is a good idea for the trial judge to provide written legal reasoning in support of that conclusion.

What would that reasoning be?

Hint: I have read many contracts. Not one that I recall had anything like a supremacy clause. Some had choice-of-laws provisions or specified the place of jurisdiction, or both, but nothing like a supremacy provision appeared in any nonhypothetical contract that I read. And some of the contracts were contracts of adhesion.

Were such an interpretation as is implied above, that a supremacy clause could be valid in a contract, upheld, perhaps La Cosa Nostra and its contract killers could be persuaded to draw up written contracts that could, without the parties’ objecting, be filed in a court of competent jurisdiction, kept unsealed and available for publication in a lawyers’ forms book. Killers who submit proof of work completed could be paid with checks drawn by La Cosa Nostra, because payment could be enforced in court, there being no violation of public policy, and La Cosa Nostra could mail out Forms 1099, so the Internal Revenue Service could audit the killers’ income taxes. Murder, Inc., could become a modern-day business in which you could buy common and preferred stock and maybe join the board, where you could advise C-level executives on how to improve efficiencies and marketing. If a civil war is being planned, the insurrection leader could draw up contracts with soldiers and thereby prevent the established government from stopping the civil war, which national governments under domestic law normally have the right to do. We could develop similar analogies in favor of torture, overruling inconvenient treaties, and more that are limited only by imagination. A government agency’s local office manual could directly contradict published regulations and no one above could take an eraser to it. A regulation from the Internal Revenue Service could double your taxes, even though that would be beyond statutory authority. A National Park Service regulation could limit use of parks to Christians regardless of the First Amendment. A legislature could do away with pesky court rulings and declare a statute as supreme, not to be Constitutionally tested. For people adopting such missives as if supreme, life could seem so much easier. The offer of self-fashioned supremacy for every individual would be equally valid in all nations. Anarchy would be exposed and may not be ideal.

If that’s not the sort of chaos and destruction we want in the world, we should solve this conundrum. And we can. The promulgators of the United States Constitution lacked the legal authority to promulgate a supremacy clause with literal meaning. The clause has some meaning; it applies to domestic law, because the Constitution could and does govern that. Therefore, within the domestic law of the United States, the Constitution is supreme. But the clause does not mean as much as literalists, especially laics, likely presume. The promulgators did not have authority to override any law that is superior to the Constitution being drafted. Therefore, they could not and did not. By the same principle, no contract can override law superior to the contract. When it comes to the Constitution, or the comparably supreme domestic law of any nation, what is left to ask is whether such superior law existed, or exists.

The Sale

A shopkeeper sells an item for a dollar. A customer pays for it with a ten-dollar bill. The shopkeeper gives back two dollars’ change. Resolution is not found.

The customer sues. The shopkeeper hires counsel. The shopkeeper tells counsel that business is good. The shopkeeper is prepared to go all the way to the Supreme Court of the United States, including full oral argument and amicus briefs, and to any international courts that may be required for vindication, and understands that time spent in lower courts may be primarily for the preservation of issues. The shopkeeper authorizes counsel to hire such additional counsel as counsel deems advisable.

And, like all good clients, the shopkeeper has a legal theory the shopkeeper wants counsel to use to full effect. It is stated as follows: No human being or group of human beings ever promulgated the law of subtraction.

Let us stipulate that the theory is true for the case. It probably is. Perhaps there are a few jurisdictions in which, for example, legislatures enacted such laws, but probably most Earthlings live where no such promulgation occurred. We presume that this case arises where no such law was promulgated by any humans. Noting such, we so stipulate.

Counsel, pursuant to instruction, presents the theory as argument.

The judge, after some sounds not phonetically preserved in the transcript, observes that this fails the chuckle test, rules that the customer need not submit expert testimony, judicially notices the law of subtraction, applies a sanction against the shopkeeper’s counsel for bringing a trivial suit (which counsel will invisibly bill to the client), and awards the customer an attorney’s fees and expenses (the bills appearing to some observers as remarkably generous).

But the shopkeeper has a right of appeal. Exercising that right forces the trial court to write a conclusion of law, which should be legally reasoned. The judge’s law clerks have graduated from the best law schools in the country and have their pens ready.

What say the judge?

The short answer is “physical natural law”. The long answer is “natural law”.

Natural law is not created by humans in any short time frame. Possibly human mutation may create a new natural law, but that’s so extremely unlikely, especially in a short time frame, a few generations or less, we can ignore it here. But, while humans do not promulgate it, they do discover it. And, since amendment or repeal is by new promulgation, what cannot be promulgated by humans cannot be amended or repealed by humans. Natural law is thus higher than any law humans might be able to amend, with however much difficulty, and thus is higher than the norms of international law.

Two components constitute all of natural law. The physical and the metaphysical are the only two there are.

Cave-dwellers who, when venturing into the woods, felt apples plopping onto their heads and Euclid who came up with geometry discovered parts of natural law. So did Einstein, who also discovered a part he thought was right but later conceded as, he said, the biggest blunder of his life, namely, the cosmological constant. These are parts of physical natural law. Logic and mathematics may not seem physical, but they count for legal purposes as part of physical natural law. Physical natural law is out there whether we understand its content or not. It was out there before we were born, before Earth came into existence from pieces flung from the sun, and before the sun came into being and was lit afire. We don’t know the laws of physics as they existed at the precise instant of the Big Bang, but there were laws of physics back then, too. Something may have existed before the Big Bang; that has not been ruled out; so, if physical nature existed before the Big Bang, physical natural law, even if with unknown or random content, existed before the Big Bang.

Metaphysical natural law is embodied in theology. Not all of theology is law; advice to be nice to other people may not be law even though theological. But the part of theology that is natural law is metaphysical natural law.

Problems might seem to arise, but a solution also becomes apparent. Firstly, there is less than worldwide agreement among humans as to the content of metaphysical natural law. Secondly, nations seem no longer to justify international war on religious differences, although they had in the past. Nations do go to war over religious differences, but I think they don’t proclaim that as their official justification, instead deeming some other cause, accurate, exaggerated, or imagined, as the legal ground.

The solution is in the separation of concept and content. That metaphysical natural law exists is the concept. An atheist can find the existence of the concept without relying on theological teachings that may not be credited to human authorship or promulgation. The atheist can notice that most people at least implicitly think it exists and manage their legal lives and the legal lives of atheists as if it exists, so that an atheist is persuaded or forced to live consistently with the concept, even if the content is optional. Even from an atheistic viewpoint, the concept of metaphysical natural law is not lowered into the norms of international law, since law is that which is enforced and most people consider the concept of metaphysical natural law to be real and of very high legal authority, lawyers placing it near physical natural law. The concept being considered by most people as universal and law being determined by enforceability by people and not exclusively by logic independent of humans, the concept is found to be universal.

Everything else in metaphysical natural law is its content, and that is determined by treaty and domestic law. The content is, therefore, not itself natural law. Though having the appearance of natural law and seemingly left to be discovered rather than promulgated, it is subject to promulgation, if so slowly that most people who are followers in a content body’s faith community don’t notice its human promulgation.

A theocratic nation could promulgate as its domestically supreme law a religious text published and established elsewhere and allege that it is unamendable, the United States has its First Amendment by which a religion may not be legislated, and some socialist nations have embraced what they call scientific atheism. That is all at the level of content. A nation may place all of the content in its supreme domestic law or leave it to villages and individuals. A nation may include it, or let it be included, in a treaty to which it agrees.

The content cannot be any higher than a treaty. It is not in the norms. It is not in physical natural law. It is not within or equal to the concept of metaphysical natural law. It is inferior to the concept.

This leaves an unresolved problem of the hierarchical relationship between physical natural law and the concept of metaphysical natural law. If one is higher than the other, determining which one is higher may be up to whoever is the determiner unless no human determines any such thing. An atheist or a scientist would likely place the physical as superior to the concept of the metaphysical while someone committed to the necessity of religion in daily living might place the concept of the metaphysical, and at least argue for placing the content of the metaphysical, as superior to all other law, and some major faith communities seem to do just that. Someone who says that two plus two is by the grace of God four, if meaning that grace is not guaranteed and in its absence two plus two could be other than four is treating the concept of the metaphysical as superior to the physical. While wars have been fought over that, apparently that was for some centuries but no longer, thus theological disagreement alone, no matter how severe, is insufficient ground for war by the norms, even though the norms as law are inferior to any part of natural law.

The Rocks

Someone charters a fleet of ships and has them loaded with rocks, but not too many in each ship, so they can still go full steam ahead. The fleet sails into international waters, away from any place claimed by any nation even with a limited claim and away from sea lanes usually used for shipping, and drops anchor. The person, whom we’ll call “he” in order to protect genders both guilty and innocent, has the rocks thrown overboard until an island is formed. He steps onto the island, pays the ship captains and dismisses the ships, declares a new nation and names it Pile of Rocks, severs all ties including those of citizenship and nationality with all other nations, declares that he is a citizen of Pile of Rocks and appoints himself, with unanimity, the head of state, does not yet promulgate any domestic law and neither does anyone else for Pile of Rocks (that step is planned to come later), happily accepts recognition by one other nation of Pile of Rocks as a nation (the other nation already being a full member of the United Nations), and, so far, agrees to nothing. He will likely agree to a treaty or two very soon, but, so far, he does not.

It has been a hard day, and it is time for recreation. He remembers that he was a incredibly good singer in a shower, with superb resonance, and decides that on his new abode he can belt it out. He does. Within five minutes, a foreign nation tells him to clam up or said foreign nation will blast his island to smithereens and he will be quite dead, never to caterwaul again. It is admitted that no one in any foreign nation can hear his voice except over an Internet connection, which anyone can turn off, but the threat is repeated. (Another nation, under domestic political pressure, proclaimed National Move Far Away Day, but the public found out that the far coast was not far enough.) The foreign nation that threatened war visibly prepares a thermonuclear device (people with less style tend to call it a “bomb”) that is thirty feet long and ten feet in diameter and the enemy with the bomb publishes a warning to all nations, mariners, and aviators that the device will explode in an hour. At the request of a nation sympathetic to the purpose (the singing having been just awful), the sympathizer having a fishing fleet nearby, which is already sailing to safety, the detonation will be delayed a day, but no more. The fishing fleet crewmembers want to give the monumentally cringeworthy screechers lifetime laryngitis but agree that bombing will be more effective and are glad to give their lives to the cause. The United Nations General Assembly, with one abstention, is looking forward to a fast conclusion.

He of Pile of Rocks, however, is not deterred. He is not leaving. As the head of state, he may act on behalf of Pile of Rocks. He has a six-inch slingshot at the ready, and can spare three pebbles for the destruction of any nation with evil designs, including thermonuclear. And he intends to sort of warble for as long as he wishes. He has a large repertoire of noise.

He is, however, a stickler for law. His Internet connection is open.

Does Pile of Rocks have a legal right of self-defense?

And, either way, does any other nation have the right, by law, to drop the bomb on the country with the miserable wailing, sinking the country below sea level and killing everyone there, all of whom are guilty?

Nations are formed as independent, each with its own laws, self-contained and addressing every important question. That’s how it has been for centuries, likely for many millennia. Nations try to live as if each is independent of the other. Publics think they do. Independence is likely the most important value pursued by each nation in its foreign policy. We sign a treaty when we think it benefits us, and we’re not so concerned that it benefit the other side, especially an enemy. A powerful nation, especially, expects another nation to go along with it, because it’s the provider and the protector.

It’s tempting to believe there are no other international laws. It’s tempting to think that no law is higher than our own nation’s domestic law. Most of us deny that any law can be higher, the exception, for some of us, being supranational religious law. We allow the religious law as decided by religious bodies through religious means. But we don’t agree on the content of religious law and we don’t think there’s anything else that’s higher than domestic law.

Yet we started, millions of years ago, as only a few people. Some say it was just two. Some scientists say it was at least ten thousand first humans (evolution having occurred at about the same time in multiple lineages due to environmental pressures and opportunities and some number being required to explain today’s biological diversity). Whatever environmental conditions led to that particular evolution probably led to proximity among the earliest members of humanity. They likely had some form of communication, probably not speech yet but maybe arms around shoulders and banging on heads. They likely had values they shared, if simply out of finding common ways of surviving against tigers and other felons (figuratively and in the minds of the earliest humans). They survived as groups and passed down what worked to their descendants, who, we can see today, survived through hundreds of thousands of generations. (We don’t even have names for most of those generations.)

Whether those values were passed down by inheritance, culture, or both is moot. Some argue that some of what worked between people was biologically mandated, and still is. Not everyone agrees. Perhaps conventions were settled on early and the dissenters died without offspring, or the offspring switched sides, and we’re still living by conventions. Virtually everyone agrees that murder and rape are criminal acts. Even most of the tiny societies in the world agree on that much, and more. There’s a lot we agree on.

We drifted apart over the generations and formed distant nations, probably some never talking to each other in their lifetimes except in war. But the values may have continued to serve. They may have been useful not only within each nation but also between nations.

Even distant nations sometimes found commerce useful and commerce depends on agreement. It won’t do for me to sell you something, keep your money, and grab back what I sold you before you use it. You’d probably give me a piece of your mind and you probably wouldn’t stop there. So we need to have some kind of agreement at the outset of a transaction, even an implied agreement, for the transaction to hold and for us to transact again.

What we agree on is not much of an agreement unless we assure that it applies even against adverse circumstances. That means enforcement has to be built in. If you have a right to slap me to gain obedience, that’s enforcement. If I have a right to get someone bigger than either of us to separate us against your will, that’s enforcement. And that brings us to the definition of law: An agreement with substantive content and a means of enforcement is law.

We likely had law very near the beginning of humanity’s existence millions of years ago, maybe even earlier in the course of evolution. Various species behave in ways that might reflect intraspecies agreement. We humans likely were never really, thoroughly, absolutely, totally lawless. We may have looked it, like when we look at the Wild West, but that’s only relative lawlessness. The Wild West had sheriffs. Many criminal mobs have rules they enforce, some reportedly by killing those who deviate and some by fining each other a few dollars payable into the mob’s coffers. Criminal gangs in the Wild West didn’t care to get stopped, so they needed a means to survive as a functioning gang, and that required rules. The gangs lasted through years despite many activities of the sort that gets prisons built. Therefore, the mobs had rules. Even the gangs in the Wild West were not lawless.

Law with such provenance far into prehistoric times and with such breadth of applicability across nearly all of humanity wherever residing around the globe, in spacecraft, and, briefly, on the moon (and someday likely beyond), crossing international boundaries, and some of which may not be amendable, is what we now call the norms of international law.

International law, with an exception for treaties requiring implementation by domestic law, is above domestic law. If two nations go to war and one unconditionally surrenders, maybe the surrendering nation has a domestic law forbidding a surrender. But that domestic law is not law when judged against contrary higher law. It may have been properly enacted and published and everyone may have been told what it says and to obey it or expect the most severe penalty, but once the unconditional surrender is agreed to that domestic legal provision is no longer law. The surrender is thus superior to domestic law. That is what is meant by one law being above another.

If any norms of international law are unamendable, those norms are above anything we can amend. Even if all norms are amendable, norms with global applicability can only be amended in a mostly global way. That means that forming new nations, especially highly populous nations, cannot be an escape from the applicability of the norms or the difficulty or impossibility of amending them. The norms thus will apply even to a newly formed nation that refused from its inception to agree to anything. So, amending norms will require consent of such nearly global coverage that even new nations likely have to agree for the amendment to be valid. No other law that humans can amend is that difficult to amend. Thus, no other humanly-amendable law is equal to the norms.

An unconditional surrender, and perhaps a conditional surrender, is applicable only between the nations and other parties agreeing thereto. It is therefore beneath the norms. An unconditional surrender, and perhaps a conditional surrender, effectively amends all other treaties (or all treaties if the surrender is not a treaty) and all domestic law to the extent they are contrary to the surrender. It is therefore above all other treaties (or all treaties if the surrender is not a treaty).

A treaty is law only between the parties to the treaty. Even a treaty that all nations have agreed to does not apply to new nations until they, too, agree to it. Thus, any treaty is beneath the norms. Even an unconditional surrender is beneath the norms.

The norms are already legally recognized as law and are already, from time to time, enforced. They are supplemented by treaties and domestic law, but the norms themselves are pronounced as law. The highest national judges pronounce them. Speakers of law, typically professors, pronounce them. Nations through heads of state act in ways that usually confirm the norms and sometimes set new ones. National representatives, such as ambassadors, sometimes write notes at international conferences and those notes sometimes become evidence of norms, even without other direct evidence. Bodies including the United Nations sometimes acknowledge the norms; such bodies are usually formed by treaty and not by the norms but even so may at least communicate the norms.

Heads of state generally will know about the norms, as will their legal advisors, military leaders, and other top aides.

The general public, however, largely does not have that knowledge. And, judging from local and national public discourse, most lawyers may never have learned about the norms, or, if it was taught in half an hour of one class, they may have forgotten it as unimportant for car crash lawsuits or whatever specialty they’re choosing to pursue. It may not be in bar exams for admission to practice. And, vitally, courts, right up through the Supreme Court, may be paying little or no attention to the norms. Federal courts do recognize that national security has its own legal imperatives, but the head of state, represented by the executive branch, and the judicial branch often disagree on whether the norms apply, whereas the norms may place that decision exclusively into the hands of the head of state. That disagreement may ensue from most courts viewing the relevant law as that of national security as stated in American judicial precedents, including from lower appellate courts, whereas the relevant law is in the norms as stated in Supreme Court precedents and in high courts’ binding opinions and academic treatises from around the world, including from enemy nations, which is politically unpalatable to most people.

By and large, however, it is likely that most of the norms are usually accommodated, albeit quietly, in the domestic law of every nation, ours included. We just don’t notice it, not usually.

We can notice it, however.

Every nation has a right of self-defense that may be exercised proportionately to the threat it faces. It may not be entitled to win; that depends on other issues. But it is entitled to try, and to use proportionate force so it can. It is not necessary that domestic law or any other nation make a pronouncement recognizing or granting that right; the norms already suffice.

The norms limit war. Peace is the default; war, even if occurring daily, is the exception. War must be justified by a proper ground or the war is unjustified and is itself an offense.

The Cause

We likely know of the Supremacy Clause originally from grade school, when teachers, who were not lawyers or even prelaw students, taught us as students, when we were not even prelaw students. Probably, they didn’t want to make a legal error and so they taught it simply as words to be taken literally. So, we remember them literally, even though those of us who are attorneys know that much language is to be otherwise interpreted, in part because courts demand it be, even when that is contrary to our legal interests. We have been habitually overapplying the clause. By recognizing its limit, we can anticipate the decision.

The Ruling

Opera at its worst, and which comes over only a channel that can be shut off, is not a justification for war. People with taste will just have to refrain from breaching the rock pile’s national sovereignty and find a more suitable form of relief.