Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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Supremacy and the National Government

One of the most vexing questions at the Convention focused on how much power to grant to the new central government. If the delegates had framed a government with broad, indefinite powers, then the new constitution would have been more like a consolidated national government. In order for such a system to work, state laws would have been totally subordinate to national laws. Under such a system, state authority would have been tenuous and vulnerable, because any conflicting national law whatsoever would have the automatic effect of overturning state laws. On the other hand, if the delegates had framed a constitution that named only a few enumerated powers which were “expressly” delegated by the states to the general government (as the Articles of Confederation had done), then the resulting constitution would be more like traditional forms of decentralized federal governments. State sovereignty would have been secure, but the federal government might have been continually stymied, because it would have lacked the power to exercise many necessary functions.

What the Framers in fact created was a hybrid. They limited the powers of the new government by enumerating them, but some of these powers were quite broad, and many of them were intended to govern the actions of individuals, not just the states in their corporate capacities. Furthermore, they specified that Congress could also exercise all powers that were “necessary and proper” for carrying out those enumerated powers. As crowning touches, Article VI requires all federal and state officials to “be bound by oath or affirmation, to support this Constitution,” and it declares that the Constitution, all laws made in pursuance of the Constitution, and all federal treaties “shall be the supreme Law of the Land.” The Constitution therefore laid down a clear general rule for determining when the federal authority is supreme and when it is not. But determining the meaning of that rule in practice would be a work in progress throughout America’s history.

Supremacy of the National Government

When the Virginia Plan was first read at the Convention, it was immediately clear that its advocates were contemplating a massive shift of power from the states to the new central government. The sixth resolution proposed, in addition to a federal veto over state laws, “that the national Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover 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.” The wording of this clause ostensibly limited the central government to legislating only in those matters in which the individual states were “incompetent,” but the meaning of that word can be so elastic that many of the Framers feared it could be used to justify almost any power at all that might be claimed by the national legislature. Furthermore, the resolution authorized Congress “to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.” And finally, another, separate resolution proposed that the officials of the legislative, executive, and judicial departments in all the states “ought to be bound by oath to support the articles of Union.” These measures, together with the “federal veto,” would have secured a complete supremacy in the national government over state powers. Delegates at the Convention took notice of this, and many were concerned.

On May 31, the first time that the powers to be exercised by the new government were discussed, two members from South Carolina, Charles Pinckney and John Rutledge, “objected to the vagueness of the term ‘incompetent,’” to specify those cases which would authorize Congress to act. They “said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.” 

Madison decided that he needed to advance some defense for the indefinite language contained in his Virginia Plan. His preference was for a national jurisdiction that was carefully limited and defined, but he also had some doubts whether a system of carefully enumerated powers could ever work. At this early stage in the Convention, “his wishes remained unaltered; but his doubts had become stronger.” He couldn’t tell where their deliberations might lead, but he would “shrink from nothing” that might be necessary to forming a good government. If indefinite national powers should turn out to be one of those means that was necessary to that end, then “it must, however reluctantly, be submitted to.” 

“All cases to which the separate States are incompetent…”

The Committee of the Whole then voted on whether the national legislature should be given the power “to legislate in all cases to which the separate States are incompetent.” The measure passed with nine states voting aye, and only Connecticut divided on the question. This vote, however, should not be interpreted as an overwhelming support for broad, indefinite powers in the national government. Instead, as we shall see, there was a tacit understanding among the Framers that they were just not ready to tackle the question of the extent of powers in the new Congress until they had settled some other important questions about how their new government would be constituted. Some delegates were willing to give very broad powers to the central government, but only on condition that the new government divided its powers among the branches of government, and among the individual states, in what they regarded as the best possible way. And, of course, there were many disagreements about what “the best possible way” would mean.