The Supremacy Clause: I do not think it means what you think it means
A recent editorial by the Salt Lake Tribune offers another example of a common misunderstanding of the U.S. Constitution’s “Supremacy Clause”. The editorial equates state nullification of federal law with “poking the U.S. Constitution in the eye by ignoring the Supremacy Clause, which elevates federal law above state and local laws…” This misguided opinions relies upon a popular though incorrect understanding of what the clause states. Here’s the Supremacy Clause in its entirety, as found in Article VI of the U.S. 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.
Opponents of nullification tend to leave out seven key words: “which shall be made in pursuance thereof.” When this qualifying context is omitted, one would of course come to the conclusion that federal law trumps conflicting state and local laws every time. Under this interpretation, the federal government holds supreme power—without exception—and states can only exercise those powers that their federal overlords permit them to.
This nation’s founders were much wiser than that. They set up a system of checks and balances within a compound constitutional republic. Many mistakenly assume that the only checks needed against the federal government are located in the federal government itself through the operation of three separate branches: the legislative, judicial, and executive. It’s important to note that the founders also intended the separate, sovereign states to be a check and balance on federal power when the national government overstepped its constitutional authority.
Even Alexander Hamilton, an ardent proponent of a strong central government, understood that the supremacy clause only applied to laws created within the bounds of the constitution. He spoke these words to the New York ratifying convention in 1788:
I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding…
William Davie of North Carolina responded to concerns over the Supremacy Clause by stating:
This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations.
It is clear in these quotes, and many other similar statements on the subject, that federal law is only supreme when “made in pursuance” of the enumerated powers outlined in the Constitution. As Thomas Jefferson stated, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” A proper understanding of the Supremacy Clause is an essential first step in fighting against the overreach of the federal government.