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 Supreme Court continued to apply the basic principle of federal supremacy throughout the late nineteenth and early twentieth centuries. But the Supremacy Clause’s role during that era was limited by other aspects of the Court’s federalism jurisprudence. Throughout this period, the Court embraced what academics have called the doctrine of “dual federalism,” under which the federal government and the states occupied largely distinct, non-overlapping zones of constitutional authority.1 Applying this framework, the Court adopted a narrow interpretation of Congress’s Commerce Clause authorities2 and construed the Tenth Amendment as imposing strict additional limitations on federal power.3 The Court also relied on the Dormant Commerce Clause to conclude that states lacked the power to regulate certain subjects of exclusive federal concern.4 While federal supremacy thus persisted as a background principle during the late nineteenth and early twentieth centuries, the Court’s bifurcation of federal and state authority minimized the instances in which the two could conflict.5

To the extent that the Supremacy Clause played an explicit role in the federalism disputes of this era, the Court applied it in ways that reinforced the sharp division of federal and state power. In a series of early-twentieth-century decisions, the Court developed a precursor to the doctrine of “field preemption” —the principle that some federal legislation implicitly prevents states from adopting any laws regulating the same general subject. For example, in Southern Railway v. Reid, the Court held that the Interstate Commerce Act (ICA)—which regulated railroad rates—superseded a state law requiring railroads to transport tendered freight.6 The Court reasoned that Congress had “taken possession of the field” of railroad rate regulation with the ICA, thereby precluding even supplementary state regulations.7 In another decision, the Court held that a different federal law requiring railroads to secure the safe transportation of property upon reasonable terms displaced a state law compelling railroads to settle certain claims within forty days.8 In his opinion for the Court, Justice Oliver Wendell Holmes rejected the argument that the state law did not conflict with the federal law, explaining that the absence of such a conflict was “immaterial,” because “coincidence is as ineffective as opposition” when “Congress has taken [a] particular subject-matter in hand.” 9 In yet another field-preemption case, the Court held that a federal law involving railroads’ liability for employee injuries superseded state common law claims based on such injuries.10

While the Supreme Court’s reasoning in these cases varied, one commentator has noted the readiness with which the Court concluded that federal law preempted the relevant fields.11 For example, in one decision, the Court appeared to suggest that any federal legislation in certain fields precluded states from adopting even supplementary regulations of the same subject.12 Under this theory of “automatic” preemption, Congress’s authority over certain subjects was one of “latent exclusivity,” meaning “the power of the states ended as soon as Congress chose to exercise its regulatory power” in those fields.13 However, this view of federal power—which was related to notions of dual federalism—would soon give way to broader legal and political trends.

Footnotes

1

See Edward S. Corwin, The Passing of Dual Federalism, 36 Va. L. Rev. 1, 4 (1950) (defining “Dual Federalism” as involving the following “postulates” : “1. The national government is one of enumerated powers only; 2. Also the purposes which it may constitutionally promote are few; 3. Within their respective spheres the two centers of government are ‘sovereign’ and hence ‘equal'; 4. The relation of the two centers with each other is one of tension rather than collaboration.” ).

2

See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 303–04 (1936) (holding that the Bituminous Coal Conservation Act of 1935 exceeded the scope of Congress’s Commerce Clause authority); ALA Schechter Poultry Corp. v. United States, 295 U.S. 495, 546 (1935) (holding that a “code of fair competition” adopted under the National Industrial Recovery Act exceeded the scope of the Commerce Power); United States v. E.C. Knight, 156 U.S. 1, 12 (1895) (holding that the Sherman Antitrust Act’s application to acquisitions in the sugar refining industry exceeded the scope of the Commerce Power).

3

See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 273–74 (1918) (holding that a federal law prohibiting the interstate shipment of goods produced using child labor violated the Tenth Amendment).

4

See, e.g., Wabash, St. Louis & Pac. Ry. Co. v. Illinois, 118 U.S. 557, 575 (1886) (holding that a state law regulating railroad rates violated the Dormant Commerce Clause); Welton v. Missouri, 91 U.S. 275, 281 (1876) (holding that a state law requiring peddlers of out-of-state merchandise to pay a tax and obtain a license violated the Dormant Commerce Clause because it regulated a subject “of national importance” ); see also Cooley v. Bd. of Wardens, 53 U.S. 299, 319–20 (1851) (distinguishing between subjects of the Commerce Power that were “in their nature national,” and therefore subject to exclusive federal regulation, and those that were subject to concurrent federal and state regulation).

5

But see Davis v. Elmira Sav. Bank, 161 U.S. 275, 284 (1896) (holding that the National Bank Act superseded a state law regarding the distribution of an insolvent national bank’s assets).

6

222 U.S. 424, 438 (1912).

7

Id. at 442.

8

Charleston & W. Carolina Ry. v. Varnville Furniture Co., 237 U.S. 597, 603–04 (1915).

9

Id. at 604.

10

N.Y. Cent. & Hudson River R.R. v. Tonsellito, 244 U.S. 360, 362 (1917).

11

See Stephen A. Gardbaum, The Nature of Preemption, 49 Cornell L. Rev. 767, 783 (1994).

12

See Chi., Rock Island & Pac. Ry. v. Hardwick Farmers Elevator Co., 226 U.S. 426, 435 (1913) ( “[I]t must follow in consequence of the action of Congress . . . that the power of the State over the subject-matter ceased to exist from the moment that Congress exerted its paramount and all embracing authority over the subject. We say this because the elementary and long settled doctrine is that there can be no divided authority over interstate commerce and that the regulations of Congress on that subject are supreme.” ).

13

Gardbaum, supra note 11, at 783.