As they deliberated over the next few weeks, many delegates expressed their wish to delineate the powers authorized to Congress more definitively. On June 4, Gunning Bedford of Delaware said he was opposed to all checks on the legislative branch, so long as the one all-important check was in place: “to mark out in the Constitution the boundaries to the legislative authority.” On June 6, Roger Sherman claimed that “the objects of the Union … were few.” Once they were defined, “all other matters, civil and criminal, would be much better in the hands of the states,” and the new government should be structured so that the states should be able to protect their prerogatives. “He was for giving the general government power to legislate and execute within a defined province.” On June 7, George Mason likewise recognized that there were some powers which were necessary for the national government, but “a certain portion must necessarily be left with the states.” He reiterated that the states must be given “some means of defending themselves against encroachments of the national government.” Indeed, most delegates recognized that there were some powers that were necessary for the federal government to exercise, and it would need to have supremacy over those powers. But they also recognized that the remaining state powers were important as well, and they also needed constitutional protections.
A similar pattern of give-and-take took place with regard to the requirement that state officials take oaths to uphold “the articles of Union.” Roger Sherman thought they were unnecessarily intrusive into the state jurisdictions. Edmund Randolph, however, thought they were absolutely necessary, since state officials were “already under oath to the states.” If they wished them to act with due impartiality between the two authorities, then they would have to take similar oaths of fidelity to the new government. Elbridge Gerry thought there was an equal necessity for national officials to take oaths of fidelity to the state governments. Nonetheless, the provisions requiring oaths from state officials passed by a narrow margin in the Committee of the Whole. By the time the Committee made its report on June 13, all of the most nationalistic tendencies of the Virginia Plan were intact. Congress had a veto on state laws; it had been given the indefinite power to legislate “in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation”; and state officials would be bound by oath to support the articles of union.
On July 23, and passed unanimously again, upon further consideration. Again, this should not be surprising. Even the Articles of Confederation had included its own version of supremacy clauses and oaths. Written into the last of its articles was that pledge that: “Every State shall abide by the determination of the United States in Congress assembled.” And its closing words pledged its signers to “solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.” The states were already accustomed to promising fidelity and submission to federal laws. What they weren’t accustomed to was a federal structure that could force them to abide by their promises.
On June 15, the tide began to turn. The New Jersey Plan reasserted greater state control. From it, gone were the indefinite legislative powers and the federal veto. Instead, the New Jersey Plan gave to the new Congress all “the powers vested in the United States in Congress by the present existing Articles of Confederation,” and then it added a few more. The new Congress would be very much like the old Congress, except that it would have greater powers to raise revenue and it would have more authority to regulate commerce. But the New Jersey Plan added one more feature designed to give heft to the new Congress: A “supremacy clause.” Instead of merely requiring fealty oaths from state officers, the New Jersey Plan stated unequivocally:
That all acts of the United States in Congress, made by virtue and in pursuance of the powers hereby, and by the Articles of Confederation, vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far forth as those acts or treaties shall relate to the said states or their citizens; and that the judiciary of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary notwithstanding.
Finally, it allowed the federal executive “to call forth the power of the confederated states” in order to “compel an obedience” whenever a state failed to comply with federal directives. The New Jersey Plan therefore spelled out very clearly when the federal government was supreme and how to enforce that supremacy. But the congressional supremacy was very tightly bound to a few enumerated powers.