The supremacy clause is found in Article VI, clause 2, of the United States Constitution. It states: ‘‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, of 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.’’
Under the supremacy clause, any state law that conflicts with the Constitution or with a federal law or treaty made in pursuance of the Constitution is void. It also binds state judges to federal law.
During the debates over the Constitution, the supremacy clause stood at the forefront of the battles over federalism—the distribution of power between the federal and state governments. At issue, how the authority of the national government would be enforced against state interference. One proposal was premised on coercion, whereas another gave the national government a veto on state laws, both not easy sells to the states who were loosing power. A third proposal was premised on the judiciary enforcing state laws, but there was a debate over whether it would be the sole responsibility of the federal courts or whether it would be split between the federal and state courts. Allowing state judges to have a role in enforcing federal law would help assuage some of the controversy of having a domineering federal judiciary enforcing national supremacy.
During the ratification debates, critics of the Constitution pointed to the supremacy clause as enhancing the powers of an omnipotent Congress. Critics cited Article I, Section 8, of the Constitution, which gave Congress the power to ‘‘make all Laws which shall be necessary and proper for carrying into Execution’’ its powers. Congress was free to pass any law, claim it was ‘‘necessary and proper,’’ and couch it in the supremacy clause as something ‘‘in pursuance’’ of the Constitution. The absence of a Bill of Rights confounded the problem, because Congress could deny the people their rights and freedoms contained in the state constitutions and bills of rights. Congress would be the sole judge of its own powers, and the supremacy clause would result in the annihilation of the states.
After ratification, Chief Justice John Marshall used the supremacy clause as a means to enhance national supremacy by means of the Supreme Court. In McCulloch v. Maryland (1819), the Court argued that the federal government had the constitutional right to create a Bank of the United States, which could not be subject to taxation by the states. In Gibbons v. Ogden (1824), the Court invoked the supremacy clause to chastise the states for not yielding to the supremacy of Congress’ power over interstate commerce. In Worcester v. Georgia (1832), the Court voided all of Georgia’s laws that were repugnant to the supremacy of the laws and treaties enacted by Congress in relation to the Cherokee Indians. When the Fugitive Slave Act was before the Court in Ableman v. Booth (1858), Chief Justice Roger Taney upheld the constitutionality of the Act and condemned the Wisconsin Supreme Court for interfering with the enforcement of federal laws.
The supremacy clause is at the heart of the Court’s recent federalism decisions denouncing Congress for ordering the states to enforce federal laws not made in pursuance of the Constitution. In New York v. United States (1992), the Court found the Low Level Radioactive Waste Policy Amendments of 1985, which commanded the states to enforce a federal regulatory program, unconstitutional. In United States v. Lopez (1995), the Court found that Gun-Free School Zones Act (1990), which forbade the possession of a firearm in a school zone, violated interstate commerce. In Printz v. United States (1997), the Court ruled that Congress could not force states to enforce the Brady Handgun Violence Protection Act by performing background checks on potential buyers. In City of Boerne v. Flores (1997), the Court struck down the Religious Freedom Restoration Act on the grounds that Congress had exceeded its powers to enforce the Fourteenth Amendment against the states.
The supremacy clause established the supremacy of federal laws and gave the courts the power to determine whether the federal and state governments were acting in accordance with the Constitution. In the early Republic, the Supreme Court used it as a means to promote national supremacy. The Court’s recent federalism cases show a different trend, which have the effect of promoting state supremacy.
RANDA CAROLYN ISSA
References and Further Reading
Cases and Statutes Cited