What does the Supremacy Clause mean?

Posted on June 18, 2011

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The Myth

All laws passed by the Federal Government are the supreme law of the land. The Supreme Court is the final and absolute authority when it comes to determining the constitutionality of federal laws. Until the Supreme Court declares a law unconstitutional all individuals and States are bound by that law.

The Truth

According to Article 6 Section 2 of the Constitution, the US Constitution is the absolute supreme law of the land. Federal laws are also the supreme law of the land if they do not violate the Constitution. If federal laws violate the Constitution they are null and void and can be disregarded. The Supreme Court plays a role in this process but so do the States. Ultimately we the people are the final judges in all questions of Constitutionality.

Treaties cannot violate the US constitution. If they do they are not valid treaties. Treaties cannot violate federal laws but federal laws can be modified by the treaties.

State legislatures and State courts are bound by the US Constitution, federal laws, and federal treaties. State constitutions cannot violate the US Constitutions. State laws cannot conflict or overrule federal laws but they can supplement them.

The Facts

It was universally accepted by the framers of the Constitution that the Constitution is the absolute supreme law of the land. No federal law, treaty, State Constitution, or State law can conflict with US Constitution and be considered legally binding.  

Federal laws are also the supreme law of the land if, and only if, they do not conflict with the US Constitution. That fact was also universally accepted by the framers of the Constitution. They made it abundantly clear during the Constitution Convention debates that federal laws are null and void if they conflict with the Constitution.

The US Constitution created a limited federal government. All powers of the federal government are clearly spelled out in the US Constitution and there are only a limited number of them. The majority of government powers remain with the States or individuals. If the federal government passes laws that intrude into areas that were left in the hands of the States or individuals those laws violate the US Constitution.

 Who decides if a federal law violates the US Constitution? Today it is almost universally accepted that these decisions are left in the hands of the US Supreme Court. But was that the original intent of the framers of the Constitution? The power to veto federal laws is not directly granted to the Supreme Court by the US Constitution. It was generally accepted by the framers that this power is implied by several different provisions in the Constitution. The most notable of these provisions is Article 3 section 1 which states “The judicial power of the United States, shall be vested in one supreme court”  Several State Supreme Courts had the power to veto laws by the State Legislatures. Many of the delegates of  the Constitutional Convention discussed this issue and it was accepted by many of delegates that the Supreme Court did indirectly have this power.

On August 15, 1787 James Madison introduced a resolution that would have expressly granted the Supreme Court the power to veto federal legislative acts. According to the resolutions all legislative acts that were passed by both houses of congress had to be submitted to both the president and the Supreme Court for their approval before these legislative acts became law. This resolution was soundly defeated. That was the only mention during the convention of directly granting the Supreme Court veto power over legislative acts. Did the delegates defeat the whole notion of the Supreme Court having veto power over laws passed by congress or were they just defeating this proposal? That is unclear from the transcripts of the debates but Alexander Hamilton mentions the indirect power of the Supreme Court in the Federalist Papers and it was mentioned many times during the State ratification debates

 Alexander Hamilton discussed the Supreme Court’s ability to overturn unconstitutional laws in Federalist Paper 78. According to Hamilton the Supreme Court acts as a buffer that protects the people from unconstitutional laws. He also reinforced the idea that the Constitution is supreme over federal law.

In 1803 the doctrine of judicial review was established by Chief Justice John Marshall when he issued the Marbury V Madison ruling. In this ruling Marshall declared that the Supreme Court is the guardian of the Constitution. He strongly implied the Supreme Court is the sole and absolute guardian of the Constitution.Marshall went too far when he issued this ruling because there is nothing direct or implied in the Constitution that backs him up. Unfortunately this doctrine is almost universally accepted by current government officials at all levels. Hardly anyone is questioning this notion that individuals and States are bound by unconstitutional laws until they are declared unconstitutional by the Supreme Court

A great many of the founding fathers strongly disagreed with the notions that we are bound unconstitutional until they are declared unconstitutional by the Supreme Court and the Supreme Court is the sole guardian of the Constitution. They believed that “we the people” are the final arbiters of all things constitutional and unconstitutional and we the people are the absolute guardians of the Constitution.

Many founding fathers also believed the States have the power to declare that federal laws are unconstitutional and the States have the power to declare unconstitutional laws null and void. The most notable of the founding fathers that believe this are Thomas Jefferson and James Madison. In 1798 the US Congress passed the Alien and Sedition acts and President John Adams signed them into law. These laws were never appealed to the Supreme Court. In response to these clearly unconstitutional laws Thomas Jefferson issued the Kentucky Resolutions and James Madison issued the Virginia Resolution. In these resolutions both Jefferson and Madison argued that the States have the power to declare federal laws unconstitutional and the States are not bound by them because unconstitutional laws are null and void. This is called nullification. It has been used repeatedly since 1798.  The majority of instances when nullification has been used were valid and for positive reasons. Some instances have not been for positive reason but should that prevent nullification from being used today and In the future? Has there ever been a period in the history of the United States when the entire federal government, including the Supreme Court, has been more hostile to the original intent and meaning of the Constitution?

The Proof

Alexander Hamilton—Federalist Paper number 78

 There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.

 It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

 Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Here is s resolution was Proposed by James Madison during Constitutional Convention August 15, 1787. Question on the motion of Mr. Madison.  This motion was defeated. Here is the vote total. N. H. no.Mass.no.Ct.no. N. J. no.Pa.no. Del. ay. Maryd. ay. Virga. ay. N. C. no. S. C. no. Geo. No

Every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the President of The  States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law.

 Here are excerpts from Chief Justice Marshal’s declaration which established the Precedent of Judicial Review This was issued in 1803 as part of his ruling on Marbury V Madison

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].

Excerpts from the Kentucky Resolves by Thomas Jefferson

That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. 

in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified

 Excerpts from the Virginia Resolves by James Madison

RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.

Thomas Jefferson in a personal letter to Abigail Adams 1804

The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch

Thomas Jefferson in a personal letter to W. H. Torrance in 1815

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.

Thomas Jefferson in personal letter to William Jarvis 1820

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves

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