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.

The Supremacy Clause generated significant controversy during debates over the Constitution’s ratification. Anti-Federalist opponents of the Constitution argued that the Clause would make the national government overly powerful and infringe on state sovereignty. The stridency of these criticisms varied.

One Anti-Federalist contended that the Clause would force the country into “one large system of lordly government.” 1 Another critic similarly argued that the Constitution would effectuate “a complete consolidation of all of the states into one, however diverse the parts of it may be.” 2 Some Anti-Federalists framed this criticism as a conceptual argument, asserting that two sovereigns could not exist within the same territory, and that one would “necessarily” destroy the other.3 Along these lines, one opponent claimed that the Supremacy Clause would allow the federal government to prevent states from levying taxes and thereby “absorb” their powers.4

Other Anti-Federalists offered more limited criticisms. Some critics objected to making treaties supreme to state law. These commentators contended that this aspect of the Supremacy Clause would allow for the displacement of state law without the approval of both Houses of Congress, because the President and the Senate could make treaties without the approval of the House of Representatives.5 Some opponents also argued that, without a federal bill of rights, the Supremacy Clause would allow the federal government to override state constitutional guarantees of individual liberties.6

Federalist supporters of the Constitution rejected these arguments. Some supporters dismissed concerns about the elimination of state governments, noting that the Constitution granted the federal government only limited powers.7 Others minimized the Supremacy Clause’s significance, characterizing it as a truism that “resulted by necessary and unavoidable implication from the very act of constituting a Federal Government[ ] and vesting it with certain specified powers.” 8 In response to concerns about the treaty power, Federalists contended that the supremacy of treaties was essential to the federal government’s credibility as a negotiator with foreign powers.9 Others argued that, while the House of Representatives had no formal role in the ratification of treaties, it nevertheless operated as a “restraining influence” on that process because of its general legislative powers.10 Finally, while a federal Bill of Rights was ultimately adopted after the Constitution’s ratification, some Federalists challenged the necessity of those amendments during the ratification debates.11 These advocates contended that explicit rights guarantees were superfluous, because the federal government’s limited powers would prevent it from infringing individual liberties.12

The Federalists prevailed. In June 1788, New Hampshire became the ninth state to ratify the Constitution, giving it effect in the ratifying states.13 Federal law thus became the “supreme Law of the Land.” 14

Footnotes

1

A Federal Republican, “A Review of the Constitution” (Nov. 28, 1787), in 14 Documentary History of the Ratification of the Constitution 255, 269 (John P. Kaminski et al. eds., 1983).

2

Agrippa X, Massachusetts Gazette (Jan. 1, 1788), in 5 Documentary History of the Ratification of the Constitution 576 (John P. Kaminski et al. eds., 1998).

3

The Impartial Examiner I, Virginia Independent Chronicles (Feb. 20, 1787), in 8 Documentary History of the Ratification of the Constitution 387, 392 (John P. Kaminski et al. eds., 1988); see also George Mason, Debates of the Virginia Convention (June 19, 1788), in 10 Documentary History of the Ratification of the Constitution 1402 (John P. Kaminski et al. eds., 1993) (arguing that the Constitution would “destroy the State Governments, whatever may have been the intention.” ); Robert Whitehill, Debates of the Pennsylvania Convention (Dec. 8, 1787), in 2 Documentary History of the Ratification of the Constitution 526 (Merill Jensen et al. eds., 1976) (arguing that the Supremacy Clause was a “concluding clause[ ] that the state governments will be abolished” ).

4

Brutus I, New York Journal (Oct. 18, 1787), in 13 Documentary History of the Ratification of the Constitution 411, 415 (John P. Kaminski et al. eds., 1981); see also An Old Whig VI, Philadelphia Independent Gazette (Nov. 24, 1787), in 14 Documentary History of the Ratification of the Constitution 215–16 (John P. Kaminski et al. eds., 1983) (arguing that. under the Supremacy Clause, “no individual state can collect a penny, unless by the permission of Congress . . . Not a single source of revenue will remain to any state, which Congress may not stop at their [sic] sovereign will and pleasure” ).

5

An Old Whig III, Philadelphia Independent Gazetteer (Oct. 20, 1787), in 13 Documentary History of the Ratification of the Constitution 425–26 (John P. Kaminski et al. eds., 1981); Federal Farmer IV, Letters to the Republican (Oct. 12, 1787), in 14 Documentary History of the Ratification of the Constitution 42–43 (John P. Kaminski et al. eds., 1983); George Mason, Objections to the Constitution (Oct. 7, 1787), in 8 Documentary History of the Ratification of the Constitution 40, 44–45 (John P. Kaminski et al. eds., 1988).

6

See Patrick Henry, Debates of the Virginia Convention (June 19, 1788), in 10 Documentary History of the Ratification of the Constitution 1349 (John P. Kaminski et al. eds., 1993); Elbridge Gerry, Objections to Signing the National Constitution (Nov. 3, 1787), in 13 Documentary History of the Ratification of the Constitution 546, 548 (John P. Kaminski et al. eds., 1981); George Mason, Objections to the Constitution (Oct. 7, 1787), in 8 Documentary History of the Ratification of the Constitution 40, 43 (John P. Kaminski et al. eds., 1988).

7

A Native of Virginia, Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), in 9 Documentary History of the Ratification of the Constitution 655, 692 (John P. Kaminski et al. eds., 1990).

8

The Federalist No. 33 (Alexander Hamilton).

9

The Federalist No. 64 (John Jay).

10

James Wilson, Debates of the Pennsylvania Convention (Dec. 11, 1787), in 2 Documentary History of the Ratification of the Constitution 416 (Merrill Jensen et al. eds., 1976).

11

James Wilson, Speech at a Public Meeting in Philadelphia (Oct. 6, 1787), in 13 Documentary History of the Ratification of the Constitution 337, 339–340 (John P. Kaminski et al. eds., 1981).

12

Id.

13

Christopher R. Drahozal, The Supremacy Clause: A Reference Guide to the United States Constitution 34 (2004).

14

U.S. Const. art. VI cl. 2.