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Free Speech, Prior Debts, and the Supremacy Clause

The Supremacy Clause

There are some modern expositors of the Constitution who believe that the “supremacy clause”—which declares that the Constitution, federal treaties, and the laws passed under the Constitution are “the supreme law of the land”—is the clause that establishes undisputed sovereignty in the national government. In reality, the Articles of Confederation had contained a very similar clause, and it had had no such effect. The Articles had declared that: “Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State.” During the Constitutional Convention, the wording of the supremacy clause had originally been urged by certain small-state delegates who were actively defending state prerogatives. Evidently, they did not believe that this clause would significantly shift the balance of power between the state and federal governments. 

The first time the supremacy clause emerged in the Constitutional Convention was when the New Jersey Plan was read, on June 15. It had included a resolution that resembles the supremacy clause in the Constitution: “Resolved, 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.” When the delegates chose to work from the Virginia Plan rather than the New Jersey Plan, the supremacy clause dropped out of the discussion for some time.

Meeting in the Middle: The Supremacy Clause and the Federal Veto

The Virginia Plan, however, had contained one clause that the defenders of states’ rights could not abide: a Congressional power to veto state legislation. On July 17, the contingent that was opposed to the federal veto finally prevailed. They were able to convince enough of the nationalists that such a power was unnecessary and perhaps dangerous in the new Constitution, and in any case it would give too much alarm to the people. In the immediate wake of the nationalists’ defeat, Luther Martin (who was an inveterate supporter of states’ rights) threw his opponents a bone. He revived the notion of a supremacy clause, using wording very similar to what had been offered in the New Jersey Plan. This small concession was accepted unanimously and without debate. Its wording was changed slightly by the Committee of Style. The addition of this clause did not make the Constitution significantly different from the Articles of Confederation; the real difference lay elsewhere. Under the new Constitution, the government would actually possess the authority to enforce those powers in which it was supreme.

The Development of the Supremacy Clause

Art. XIII of the Articles of Confederation: “Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State.” Resolution VI of the New Jersey Plan: “Resolved, 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.”Committee of Detail Report, Art. VIII: “The Acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; any thing in the Constitutions or laws of the several States to the contrary notwithstanding.”Article VI of the Constitution:  “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.”