The Supremacy Clause.
You ever heard of it?
It’s clause 2 under Article VI of the U.S. Constitution and it says:
“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.”
It’s really critical that we, as Americans, fully understand the context and meaning of this clause since it’s abused by the federal government and used to assert an unconstitutional amount of supremacy over the states and their governments.
The Supremacy of the Constitution
As I’ve said on numerous occasions, the Constitution exists to “limit” or “confine” federal power. The definement (I just made that a word 😃) and confinement of power was the reason for creating the Constitution in the first place. If the government has the ability to make law upon a whim, the government’s power is limitless and arbitrary. This “supremacy” clause, though interpreted in a variety of ways, simply means that the Constitution is the supreme law of the land and every law must be made in pursuance of the Constitution. Basically, it states what I’ve been saying all along about the Constitution.
Here’s the definition of “pursuance” (because, if you’re like me, you really don’t know what “pursuance” means). Pursuance means: “A following; prosecution, process or continued exertion to reach or accomplish something; as in pursuance of the main design”.
So, all laws made by the federal government need to be in pursuance of or following the direction of the main design, that is, the Constitution. Are you following the logic?
Here’s what Alexander Hamilton had to say about the pursuance of federal laws.
“But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union … EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION.”
Hamilton proceeds to say that any law, made by the federal government, but not within the confines of the Constitution, would not be the supreme law of the land but a “usurpation of power not granted by the Constitution”.
Madison and Hamilton, the primary authors of the Federalist papers and proponents of the new Constitution were working to convince their fellow Americans that the Constitution would not allow for federal power to usurp or violate state power. Therefore, Hamilton was attempting to alleviate any concerns the anti-federalists had about the supremacy clause by arguing that any law that does not comply with the Constitution—which is the ultimate supreme law of the land—-is not, nor should be, considered supreme and does not have to be followed by the states.
Hamilton says, ““There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.“
And Madison also tries to alleviate concerns about the “supremacy” clause by saying that,
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
So, both of the primary authors of the Constitution here emphasize that this “supremacy” clause should never be taken out of context to use and abuse the powers of the states. In fact, the primary point of this clause is to firmly establish the power and authority of the Constitution over the federal government. In fact, if anything, it gives more power to the states because it establishes the Constitutional right of states to refuse to comply with federal laws that violate the Constitution.
A Little Legal Help
I debated whether or not to include this video and ultimately decided that it would be helpful for y’all to listen to a legal scholar explain this clause. Her name is Krisanne Hall and she is a legal scholar, a lawyer, and much more versed in the nuances of law than I am (I have a Ph.D. but do not claim to be as knowledgeable about the nuances of the law as a legal scholar might be).
Fascinating, right? Clearly, the clause has been taken severely out of context to justify extreme federal power. Not surprising, of course, since our founders also predicted that ambition would counteract ambition, meaning everyone in government would be hungry for and fight for their own ambition for power. The federal government is going to do whatever it can to eat up as much power as it can.
The Courts and the Supremacy Clause
BUT the federal government would not be able to use or abuse their power nearly like they do without the expansion of the Supreme Court’s power in Marbury v. Madison. With the introduction of judicial review, the Supreme Court then had the power to determine what they thought the Constitution meant.
Understand this: the supremacy clause is not declaring the federal government supreme over the state governments; it is declaring the Constitution supreme over the federal government.
The concept of federal supremacy started with Chief Justice John Marshall, who also presided over Marbury v. Madison and the inception of judicial review. He, and the Court, invalidated a state law (different from invalidating a Congressional law as they did in Marbury v. Madison) in a seminal case called McCullach v. Maryland (1819).
Marshall established federal supremacy over states in the Supreme Court case McCulloch v. Maryland in 1819 in two ways. James McCulloch, the cashier of the Baltimore branch of the Bank of the US refused to pay a tax levied on that bank by the state of Maryland. The Court first said that it is within Congress’ right to set up a bank even if there was nothing explicit in the Constitution saying Congress could do this. John Marshall justified this reach of power by saying the federal government lays and collects taxes, issues currency, and borrows funds—further it says that Congress must do whatever is necessary and proper to carry out its duties–so it can Constitutionally create a bank. He established federal supremacy by broadening the reach of the federal government and re-interpreting the meaning of the necessary and proper clause.
The second way Marshall expanded federal power was by invalidating a state law. The question answered by this case was whether a federal bank could lawfully be taxed by a state. Marshall said that the US federal government wasn’t established by the states but by the people, so the federal government was supreme in the exercise of “those powers conferred upon it”. In order, then, for these federal powers to be supreme, they had to be immune to state challenge because “the power to tax involves the power to destroy”. From this point on, the federal government and its law were considered supreme over states and their law. In other words, it wasn’t the supremacy clause that established federal supremacy over states, it was a supreme court case.
The supremacy clause, interpreted appropriately, does establish that federal law, when constitutional, trumps state law, as it should. Why have a federal government empowered to make laws that no state or individual is legally required to follow? (The supremacy of Constitutional federal law was fully established in the landmark case Gibbons v. Ogden in 1824, where the Court officially established that states cannot regulate interstate commerce within its borders when Congress also regulates the same area of interstate commerce. In other words, federal law supersedes the state law when they come in conflict, as long as the law is Constitutional, per the supremacy clause).
This does not mean that federal law always trumps state law. In fact, federal law is invalid when unconstitutional, which means that states have a Constitutional right to treat it as such. Also, keep in mind that the Constitution does not give many powers to Congress, very few as Madison says. This means that most lawmaking is left to the states, but for the few areas Congress has the Constitutional right to make law about, the Congressional law wins. Of course, as a result of McCulloch v. Maryland, the courts act as if all federal law is supreme over state law. Given what I’ve just explained here, you know different.
Always remember, if the federal government acts in a way that is not pursuant of the Constitution, states have a right to declare it void. If more states take this Constitutional expectation to heart, we’ll have more hope to preserve the Constitution than I’d previously thought.
The Liberty Belle
P.S. For a specific application of this concept, check out my article on Oklahoma’s nullification of federal law earlier this year.