Overview of the Supremacy Clause
The Supremacy Clause (Article 6, Clause 2) establishes the United States Constitution, federal laws passed pursuant to the delegated, enumerated powers of Article 1, Section 8, and United States Treaties as the supreme law of the land. The Supremacy Clause specifically says, the Constitution, “and laws which shall be made in pursuance thereof,” shall be the supreme law of the land.
Significance of the Supremacy Clause
The typical high school civics textbook or law school graduate would say the Supremacy Clause makes federal law supreme to state law. This simplistic answer erroneously implies that any law passed by Congress is the supreme law of the land. As stated above, federal laws are only supreme to the laws of the states if the law is made pursuant to one of the delegated, enumerated powers. Again, we come back to a couple reoccurring ideas: First, pretty much every law Congress passes in the twenty-first century has nothing to do with any enumerated power found in Article I, Section 8. Accordingly, are any of those laws Constitutional? The answer should be obvious. Second, who has the ability or authority to determine whether a federal law is made pursuant to one of the enumerated powers of Article I, Section 8? The Supreme Court? Any branch of the federal government?
Federal Government Usurps Powers Not Delegated
So who should decide whether a federal law is consistent with and made pursuant to the federal government’s Enumerated Powers? Article 3 of the United States Constitution establishes a Supreme Court, and allows for the creation of subordinate federal courts. Most people would agree the Supreme Court is likely the highest court or tribunal to adjudicate whether a law does or does not violate the Constitution. However, the Supreme Court and its subordinate courts are part of the federal government. To trust any branch of the federal government to limit its own power would be as foolish and naïve as trusting a fox to guard a hen-house. As history has shown, the federal government will not obey limits on its powers and one branch may collaborate to aggrandize the powers of another branch.
The more appropriate question to ask is, what happens when the Supreme Court or its federal courts get it wrong and aggrandize the powers of the federal government beyond those limits prescribed by the Constitution? Can the agent really impose itself and its will upon the states via the Supremacy Clause? Remember, the states are the partners, or principals, in this Constitutional partnership agreement. The federal government is merely the agent with delegated, enumerated powers.
Appropriate Response to Federal Usurpation
Intelligent, liberty-minded people, such as Thomas Jefferson, called for individual states to protect themselves and their citizens by declaring unconstitutional federal laws null and void within their respective state(s), irrespective of the Supremacy Clause. Even James Madison, a nationalist in his own right, made clear it was, “essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated.” Madison continued, “[t]he states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated.”
For more on this issue, please see our page on Nullification.
United States Constitution – Article 6, Clause 2
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, anything in the Constitution or laws of any State to the contrary notwithstanding.