The Supremacy Clause

A great many books have been written about the U.S. constitution. We have enjoyed some, particularly those, which have pointed out problematic areas, clauses that the authors regretted or wished could be fixed or just would prefer to be understood as they were when they were written.

Here are pulled together some facts and thoughts on 10 clauses in the U.S. constitution that have been ignored, misunderstood or misapplied. Some of the authors merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied (to repeal or correct the problem clauses), and yet others would like an entirely new constitution. The focus here will be on one of the 10 troubling constitutional clauses:

1. The commerce clause
2. The contracts clause
3. The due process clause (amend 5 and 14)
4. The privileges or immunities clause
5. The equal protection of the laws clause
6. The general welfare clause
7. The necessary and proper clause
8. The supremacy clause
9. The takings and tax clauses
10. The enumeration of rights clause (amend 9)

We have now come to the eighth of these clauses, The Supremacy Clause.

The Supremacy Clause

That is the common name given to Article VI, Clause 2 of the United States Constitution, which reads:

“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.”

As it says, state judges are bound by the US constitution and US laws and treaties. You could almost read the same principle in article III.

According to this article on Neofederalism, the supremacy clause as it is backed up by article III is a check on state courts, and focuses supreme power in federal courts, ultimately in the supreme court..

"The history of the supremacy clause demonstrates the Framers' fear that unsupervised judicial review by state court judges would be insufficient to protect constitutional liberty."

"The supremacy clause, as finally worded, addressed only state court judges, but the mandatory jurisdiction created by Article III assured the Convention that the final word on constitutional questions would lie in federal courts. The Framers clearly understood the connection between Article III and the supremacy clause; indeed, the Convention specifically modified the "arising under" language of the Article to render it "conformabl[e] to a preceding amendment" changing the language of the supremacy clause. The supremacy clause would oblige state judges to follow the supreme law of the Constitution at the trial level; appellate review by Article III judges would assure faithful and accurate discharge of this obligation."

The issue of treaties

To most people it goes without saying that a nation needs a main government, regardless of having lower level state, county and city/township governments. However, the exact relationship of the various levels is not a trivial matter. That the federal or highest level government have full power over the others in some areas is given. But in which areas it is to be supreme is open to argument.

In theory the US has a federalist system in which the states retain police powers, which gives them full control of public health and safety. All other powers seem to have been granted to the higher level or federal government. However, it's more complicated. The federal government was granted a list of enumerated powers, and some limits were placed on the states by the constitution and its amendments.

The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land." The Constitution is the highest form of law in the American legal system. State judges are required to uphold it, even if state laws or constitutions conflict with it.

Treaties must comply with the Constitution. However, the treaty-making power of the U.S. Government is broader than the law making power of Congress. The Supreme Court ruled in Missouri v. Holland (1920) that pursuant to a treaty with Britain, the United States could regulate the hunting of migratory birds, even though Congress had no independent authority to pass such legislation.

When treaties conflict with the constitution

There has been some debate (and fear) as to whether or not some of the basic principles of the United States Constitution, such as the country's system of government or Bill of Rights could be affected by an ambitious treaty. Since the constitution states that a treaty has supremacy over "any thing in the Constitution or Laws of any state to the contrary notwithstanding," it has been argued that the potential for abuse is present. In the 1950s a constitutional amendment known as the Bricker Amendment was proposed in response to such fears; it would have mandated that all US treaties not conflict with the existing powers granted to the US government.

Introduced into the Senate in February, 1952, as Senate Joint Resolution 130, the "Bricker Amendment" to the Constitution read as follows:

Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect.

Section 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

Section 3. Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.

Section 4. The congress shall have power to enforce this article by appropriate legislation.

Subsequent legal precedents, notably, Seery v. United States, 127 F. Supp. 601 (Court of Claims, 1955) and Reid v. Covert, 354 U.S. 1 (1957), ultimately established some of the limitations sought by the Bricker Amendment.

Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission (1983) is a Supreme Court case that lays out a variety of tests that may be used to determine if state statutes are superseded or preempted by federal legislation.

Do the states have any power to restrict the federal government from entering new treaties? No. This is contrary to the states rights advocates among the founders and against Libertarian priciples. Missouri v. Holland, 252 U.S. 416 (1920), the United States Supreme Court held that the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. The case revolved around the constitutionality of implementing the Migratory Bird Treaty Act of 1918.

Congress had passed laws regulating migratory waterfowl huntin on the basis that such birds freely migrated across borders, thus the regulation of the hunting of such birds could not be considered to be domain of states. However, several states objected to this theory and successfully sued to have the law declared unconstitutional, on the premise that the United States Constitution gave Congress no enumerated power to regulate bird hunting, and hence the regulation of such hunting, was the province of the states according to the Tenth Amendment.

Congress, in revenge against this ruling, then empowered the State Department to negotiate with the United Kingdom, which at the time still largely handled the foreign relations of Canada, a treaty pertaining to this issue. The treaty was subsequently ratified by the senate and became law, and required the Federal Government to enact implementation laws regulating the capturing, killing, or selling of the protected migratory birds, an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918.

The state of Missouri then sued on the basis that the federal government had no authority to negotiate a treaty on this topic. In an opinion by Justice Oliver Wendell Holmes, Jr., the Supreme Court held that the law was in fact constitutional, noting that the treaties clause of the Constitution (Article VI, clause 2), sometimes known as the "supremacy clause," makes treaties the "supreme law of the land," co-equal in status to the Constitution itself, a finding that trumps any state concern with regard to the provisions of any treaty, and further implying that treaty provisions were not subject to questioning by the states under the process of judicial review.

Many persons saw and still see this ruling as a dangerous implication that the President and the Senate could essentially amend the Constitution by the means of treaties with other countries that would abrogate the rights of the people or the States otherwise protected by American law. These concerns came to a head in the 1950s, when the Old Right Conservatives supported the so-called Bricker Amendments, which nearly passed Congress with the required two-thirds majority. The end result, our current situation, leaves us with a rather unlibertarian status.

A law made by the executive and senate – never approved by the house of representatives – can become part of the supreme law of the land. A treaty with another nation of course cannot trump the constitution. But a national commitment to a treaty could have repercussions for state laws. Take Kyoto . Because the Bush administration was putting a low priority on control of CO2 emissions, in 2007 several states began their own initiatives to deal with global warming. They could be all over the map relative to the standards set within the Kyoto treaty. These state laws could be overturned based on an act approved only by the president and the senate, part of the supreme law of the land.

Let us suppose that the United States government, as a member of the United Nations, should join with other members in a treaty to impose stricter control on small weapons. If the president approved it and the senate consented, new laws could then be passed to implement total gun control, which could be stricter than what Washington DC had until recently. Perhaps the treaty alone, without any new federal law, could be implemented by the executive branch. In any case this could trump any existing state gun laws, no matter how liberal. And this could be done without the normal procedure for passing a new law, and without a constitutional amendment, providing federal courts did not rule against.

Article II, section 2, of the Constitution states that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." These few words are the cornerstone to a major part of our system of divided powers, checks and balances.

In a US Senate document we find

"According to one scholar of the early Senate, 'the Senate power which aroused the gravest and most widespread apprehension was that associated with the making of treaties.' The Constitution's framers gave the Senate a share of the treaty power in order to check presidential power, to give the president the benefit of the Senate's advice and counsel, and to safeguard the sovereignty of the states by giving each state an equal vote in the treatymaking process."

Normally a state law would be overturned on grounds of being unconstituional.

A Supreme Court History document says

". . . a state law was clearly invalidated on Supremacy Clause grounds in Ware v. Hylton (1796), where the Court held that a Virginia statute contravened the 1783 Treaty of Peace with Great Britain."

In this case what was overturned was Virginia legislation enabling its citizens to pay debts owed to British subjects into the state treasury in depreciated currency and thereby obtain a certificate of discharge.

Are there other issues with supremacy?

1. One might imagine that a law could be passed by Congress that is not enacted "in pursuance" of the constitution, but one would hope a veto would stand or that the supreme court would overturn it.
2. This clause, besides giving federal law priority, was clearly aimed at state judges. However, are there not others who need to be bound by it? Would not state legislatures, governors and federal judges also need to be in compliance? We would hope that additional laws protect these areas, laws I am not aware of.
3. Is a centralized ordering of society the very best arrangement? Modern business management science would have decisions made at the lowest level possible within any organization. After all, what most of us are concerned about almost 100% of the time is how best to use scarce resources in the pursuit of happiness. Who has the most intimate knowledge and awareness of our goals and circumstances than the sole individual? My family and my co-workers have access to some of that. A central government cannot possibly take everyone's personal and local knowledge into account.

Conclusion

In any legal system it is important to have an end-point defined, a point of final appeal. The supremacy clause, along with article III, clearly serves as such a definition.

The supremacy clause is troubling because it gives an extremely high rank to treaties, which by themselves, do not require the full approval of congress, but only the senate. However, the pattern is set that subsequent laws are always needed to implement the requirement of treaties. And these laws do require the approval also of the house of representatives, and must withstand supreme court review.

More troubling is the centralism issue. A method of ordering society is necessary, but the question is whether it had to be a monolithic monopoly government.