The Supremacy Clause and the Constitutional Convention (2024)

ArtVI.C2.2.2 The Supremacy Clause and the Constitutional Convention

Article VI, 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Despite the Constitutional Convention’s limited mandate, its delegates began drafting an entirely new constitution shortly after convening. During the drafting process, the delegates considered several options for resolving conflicts between federal and state law. One proposal—the Virginia Plan—would have granted Congress the power to veto state laws and employ military force against states that disobeyed federal law.1 Another option—the New Jersey Plan—also proposed giving Congress the power to use military force against recalcitrant states, and included a provision that one scholar has described as the “incubus” of what became the Supremacy Clause.2 This provision read:

Resd. that all Acts of the U. States in Congs. made by virtue & in pursuance of the powers hereby & by the articles of confederation vested in them, and all Treaties made & ratified under the authority of the U. 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. . . .3

While the Convention ultimately rejected the New Jersey Plan and proceeded with consideration of the Virginia Plan, it dispensed with the latter’s proposals for a congressional veto and the use of military force. Instead, the Convention unanimously approved a provision that closely tracked the New Jersey Plan’s “supremacy clause.” 4

In July 1787, the Convention adjourned to allow the Committee of Detail to draw up a draft constitution.5 The Committee of Detail’s final report contained a “supremacy clause” that read:

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; anything in the Constitutions or laws of the several States to the contrary notwithstanding.6

This provision departed from the clause approved by the Convention as a whole by explicitly providing that federal law was supreme over state “Constitutions,” in addition to state “laws.”

When the Convention considered the Committee of Detail’s report, it unanimously approved an amendment clarifying that the federal Constitution itself—in addition to federal statutes and treaties—was supreme over state law.7 The Convention’s Committee of Style ultimately placed the Supremacy Clause in Article VI, immediately before a provision requiring all judges to take an oath supporting the Constitution.8 The final Supremacy Clause read:

“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.” 9

Footnotes

1

1 The Records of the Federal Convention of 1787 21 (Max Farrand ed., 1911) [hereinafter Farrand’s Records].

2

2 John R. Vile, The Constitutional Convention of 1787: A Comprehensive encyclopedia of America’s founding 773 (2005); see also Christopher R. Drahozal, The Supremacy Clause: A Reference Guide to the United States Constitution 16 (2004) (describing the provision as “the earliest version of what was to become the Supremacy Clause” ).

3

1 Farrand’s Records, supra note 1, at 245.

4

2 Farrand’s Records, supra note 1, at 22. The approved clause read: “Resolved that the legislative acts of the United States made by virtue and in pursuance of the articles of Union and all Treaties made and ratified under the authority of the United States shall be the supreme law of the respective States as far as those acts or Treaties shall relate to the said States, or their Citizens and Inhabitants—and that the Judiciaries 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.” 2 Farrand’s Records, supra note 1, at 22.

5

Drahozal, supra note 2, at 21.

6

2 Farrand’s Records, supra note 1, at 183.

7

2 Farrand’s Records, supra note 1, at 389. The amendment replaced the phrase “The Acts of the Legislature of the United States made in pursuance of this Constitution” with the following language: “This Constitution & the laws of the U.S. made in pursuance thereof.” 2 Farrand’s Records, supra note 1, at 389.

8

For a detailed summary of the Supremacy Clause’s textual evolution, see Drahozal, supra note 2, at 68–70.

9

2 Farrand’s Records, supra note 1, at 663. One commentator has argued that the phrase “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” is a “non obstante provision” —an eighteenth-century legal term of art instructing courts not to apply the general presumption against implied repeals. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 238–41 (2000). According to this theory, the Supremacy Clause’s non obstante provision means “that courts should not automatically seek narrowing constructions of express preemption clauses” in federal statutes. Id. at 294. Other scholars have questioned this reading of the Supremacy Clause and argued that its adoption would be inconsistent with other aspects of contemporary federalism jurisprudence. See Daniel J. Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1, 47–52 (2013); Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 6 n.12 (2007).