The second and third sections of Article VI of the U.S. Constitution provide, The 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. . . 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 [the] Constitution.
The Supremacy Clause reflects the framers’ concern that the states, if left to their own devices, would ignore the new national government and, even worse, would encroach upon the powers and authority of the central government (see The Federalist Nos. 39, 45, and 46). If the states were to govern according to their own pleasure without regard for the other states or for the needs of the union, the framers of the Constitution feared that anarchy would ensue and that in the long run the Constitution and the union among the 13 original states would perish. Seen in this light, the Supremacy Clause, with its assertion that the new Constitution and all laws and treaties made under it are the supreme law of the land, represents an attempt on the part of the framers to protect the federal government from the states and, more to the point, to ensure its survival. At the same time, many Americans were concerned that the new government not abuse its powers vis-à-vis the states and that the two coexist. Representative of this concern is the view of Alexander Hamilton. Hamilton, a strong supporter of creating a stronger central government and a key author of the Constitution, acknowledged that the existence of the states, which would “retain [certain] independent and uncountroulable [sic]” authorities, whose “concurrent existence” would impose a limit on the national government (see The Federalist No. 33).
THE FRAMING OF THE SUPREMACY CLAUSE
The delegates to the Constitutional Convention of 1787 disagreed about many important issues. The framers were divided over the form that the new government would take, how to structure the Congress, whom it would represent, who would select the chief executive, and many issues pertaining to slavery. At times, these disagreements grew so serious that the Convention appeared in danger of adjourning without successfully completing its work. The framers, however, were in such strong agreement that a new constitution was needed that they worked to resolve their differences. If there was one issue, however, that the delegates to the Constitutional Convention were in wide agreement upon, it was that the new constitution and the laws, treaties, and judicial orders of the new national government must be superior to those of the states. Support for this principle was so strong among the delegates that both of the initial plans offered by the two main factions present at the Convention (the Virginia Plan, favored by the big states, and the New Jersey Plan, put forward by the small states) both proposed that the new national government’s powers be supreme to those of the states. According to James Madison’s notes of the Convention, the idea that national laws and treaties would be superior to those of the states was widely accepted. There was considerable debate, however, over just how far to go in bringing about national supremacy. A motion to authorize the Congress “to negative” laws that it judged “improper” failed. Ultimately, the framers settled on broader language that simply stated that national laws and treaties were superior to any conflicting state provisions without granting Congress any expressed power to actively “negative” state laws per se. In opting for such a statement of national superiority, the delegates followed the example of the Articles of Confederation. Under the Articles of Confederation, the laws of the Continental Congress were to be superior to those of the states. The Congress, however, had no real power to require states to comply with its laws, and, as a result, the states frequently went in their own direction without regard for national policies. In order to avoid repeating the experiences of the Articles of Confederation, the authors of the 1787 Constitution proposed to grant the new Congress considerable powers and means suitable to achieving compliance with national policies. When the Constitution was presented to the states for ratification, many opponents of the proposed constitution argued against ratification on the grounds that the Supremacy Clause would enable the new government to consume the states and ultimately threaten the people’s liberties. George Mason, for example, an opponent of the Constitution, argued before the Virginia Ratifying Convention that the Supremacy Clause meant that ratifying the Constitution meant annulling Virginia’s bill of rights and giving in to the whims of the new government. Mason lost his fight against the Constitution, but not before he won a pledge from James Madison to adopt a national bill of rights that would provide citizens with security against the new government.
Opponents of national supremacy lost the fight over ratification, but the war was not over. In the first few decades of the new government’s existence, there would be several important battles over national supremacy and states’ rights whose resolution by the U.S. Supreme Court had a major impact on the course of American history.
THE COURTS AND THE SUPREMACY CLAUSE
One of the most important judicial interpretations of the Supremacy Clause came in Martin v. Hunter’s Lessee (1816). In this case, the U.S. Supreme Court addressed constitutional issues that were of great importance to the fledgling nation. The first question was whether national treaties were binding on the states. The language of the Supremacy Clause seemed to indicate that all laws and treaties made by the national government were in fact supreme to any preexisting state law or colonial treaty. Not everyone in the United States in the 1800’s was willing to accept that supposition. At the conclusion of the Revolutionary War, the United States negotiated the Jay Treaty with Great Britain. This treaty guaranteed that property seized from Tories (persons who during the Revolution had been loyal to Great Britain) would be returned to their original owners. The Jay Treaty conflicted with Virginia law. Under Virginia law, the Tories had forfeited their land rights. Martin raised an additional supremacy issue that was of considerable importance to the United States. This question concerned whether the U.S. Supreme Court could review the decisions of state courts or the laws of state legislatures and, if such laws were judged to be unconstitutional, if the Supreme Court could render them invalid. Congress had authorized such judicial review in Section 25 of the Judiciary Act of 1789. The Court’s answer to both of these questions was an unqualified yes. Martin v. Hunter’s Lessee is significant because it helped to established that the laws (e.g., the Judiciary Act) and treaties (e.g., the Jay Treaty) enacted by the national government were supreme to conflicting state laws, and it confirmed the validity of federal judicial review of the states.
The states have not always adhered to the precedence set in Martin with respect to the supremacy of treaties and of federal judicial authority. In Missouri v. Holland (1920), for instance, Missouri challenged the validity of a migratory bird treaty that the United States had reached with Canada. The treaty limited the hunting of Canadian birds on migration to the United States. Missouri, which had preexisting laws that conflicted with the new treaty, sought an injunction against the treaty. Missouri v. Holland did not challenge the authority of the United States to negotiate foreign treaties or their supremacy to state law per se. Rather, Missouri argued that the Tenth Amendment reserved the power to regulate the hunting of migratory bird to the states. The Court rejected this argument. In a famous opinion that discussed the evolutionary nature of the Constitution, Justice Oliver Wendell Holmes noted that the language of the Supremacy Clause makes national treaties supreme to any state law. This is true even if the treaty conflicts with or broaches upon an area traditionally governed by the states.
Challenges to Martin v. Hunter’s Lessee’s treatment of the federal judicial supremacy issue came in Ableman v. Booth (1859) and Cooper v. Aaron (1958). Both cases concerned race and the law, albeit separated by 100 years. In the former case, Wisconsin objected to federal judicial enforcement of the Fugitive Slave Act. In the latter case, the Little Rock, Arkansas, school board protested federal judicial supremacy with respect to school desegregation. In both instances, the U.S. Supreme Court ruled against the states, reminding them that the Constitution and all laws or treaties made in pursuance to the Constitution are the law of the land as per the Supremacy Clause to the Constitution, and that the Supremacy Clause in conjunction with Article III of the Constitution makes the Supreme Court the final arbiter of the law for the United States.
Another Supremacy Clause case of great importance is McCulloch v. Maryland (1819). In McCulloch, the U.S. Supreme Court rejected Maryland’s efforts to tax an institution of the national government (a national bank). Writing for the Court, Chief Justice John Marshall, an avowed nationalist, declared simply that a subordinate cannot tax a superior; such would run contrary to the intrinsic nature of the relationship between superior and subordinate beings. The significance of this was to insulate or protect the national government from the attacks or regulations of the states. “The power to tax,” in Marshall’s words, “is the power to destroy.” If such a power resided in the hands of the states, the government of the United States would not be superior to the states. Such a scenario would violate the U.S. Constitution, and, even worse, it would spell the end of the federal government because the states could tax the national government out of existence.
An additional interpretation of the Supremacy Clause is found in Gibbons v. Ogden (1824). Gibbons was an Interstate Commerce Clause case of great significance to the nation and its development. New York had refused to recognize the authority of Congress to regulate commerce that crossed borders into and from New York. Furthermore, the Empire State questioned Congress’s authority to regulate waterways in New York used in the trafficking of goods from state to state. The Court, as in Martin v. Hunter’s Lessee and McCulloch v. Maryland, reasoned that if the Supremacy Clause means anything, it must mean that where there is a conflict between legitimate federal and state laws, the federal law must prevail.
Richard Hofstadter, The American Political Tradition (New York: Alfred Knopf, 1948); Samuel Kernell and Gary C. Jacobson, The Logic of American Politics (Washington, DC: Congressional Quarterly, 2003); Phillip B. Kurland and Ralph Lerner, eds., The Founder’s Constitution, vol. 6 (Chicago: University of Chicago Press, 1987); Forrest McDonald, Novus Ordo Selcorum: The Intellectual Origins of the Constitution (Lawrence: University of Kansas Press, 1985); and Gordon Wood, The Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1969).