FEDERAL SUPREMACY: A SECOND LOOK

The meaning of the term “federal” has changed over the years.

When the Framers of our Constitution spoke of “federalism,” they meant a government in which powers are divided between the national (federal) government and the state governments. And at that time practically everyone in America was a federalist by that definition.

After the Constitution was drafted and signed by the delegates in 1787 and sent to the states for ratification, those who supported it called themselves federalists, leaving their opponents to call themselves antifederalists. Federalist then came to mean a person who believed the Constitution’s division of power between the national and state governments was correct, while the antifederalists believed the Constitution delegated too much power to the national government.

And then, after the Constitution was ratified and went into effect in 1789, the nation divided into two factions or political parties. One party, led by men such as John Adams and Alexander Hamilton, called itself the Federalists because they believed the powers delegated to the national government in the Constitution should be interpreted broadly. The other party, led by Thomas Jefferson, called itself the Democratic Republicans (later shortened to Democrats) and believed the powers of the national government should be interpreted narrowly.

Today, the national government is called the federal government, and its officers are called the “feds.” The federal government is assumed to be supreme, and federal judges are not to be questioned. If anyone challenges that assumption, they are likely to be asked, “Haven’t you ever heard of the Supremacy Clause?”

I typically respond, “Yes, I have heard of the Supremacy Clause. And having taught Constitutional Law for over forty years, I teach my students not only what it means but also what it does not mean.”

Let’s look at the Supremacy Clause, Article VI Sec. 2 of the 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.

Some read the Supremacy Clause to say federal power is everywhere supreme, but upon closer analysis we will see that that is not its meaning at all.

It says the Constitution is the supreme law of the land. But what part of the Constitution is the “supreme law of the land”? Obviously, all of it.

Does that include the amendments? Clearly it does, because according to Article V, amendments when ratified are “valid to all Intents and Purposes, as Part of this Constitution.”

If so, then the Tenth Amendment, as part of the Constitution, is part of the supreme law of the land. The Tenth Amendment explains the limitation of federal power:

The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Fearing excessive federal power, the Framers established a government of limited, delegated powers. The federal government has only those powers which the people through their Constitution delegate to it. All other powers, unless prohibited to the States, are reserved to the States or to the people.

Wherever the Constitution delegates a power to the federal government, according to the Tenth Amendment that is the supreme law of the land.

Wherever the Constitution reserves a power to the States, according to the Tenth Amendment that is equally the supreme law of the land.

Consider the abortion issue. Does any provision of the Constitution delegate power over abortion to the federal government? The answer, especially after Dobbs v. Jackson Women’s Health Organization (2022) overruled Roe v. Wade (1973), is “no.”

Does any provision of the Constitution prohibit the States from regulating or prohibiting abortion? Again, the answer is “no.”

Then, according to the Tenth Amendment, the power over abortion is reserved to the States, and that, according to the Supremacy Clause, is the supreme law of the land.

James Iredell, a delegate to the North Carolina Ratifying Convention and later a U.S. Supreme Court Justice, explained that the Supremacy Clause “appears to me merely a general clause, the amount of which is that, when they pass an act, if be in the execution of a power given by the Constitution, it shall be binding on the people; otherwise not.”

William Richardson Davie, a delegate to the 1787 Philadelphia Convention and to the North Carolina Ratifying Convention, explained further that

This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. …It is not the supreme law in the exercise of powers not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations.

Alexander Hamilton, a leading Federalist of his day and an advocate of expanded federal power, echoed the same theme:

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. The states, as well as individuals, are bound by these laws; but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or abiding. In the same manner the states have certain independent powers, in which their laws are supreme; for example, in making and executing laws concerning the punishment of certain crimes, such as murder, theft, etc., the states cannot be controlled. With respect to certain other objects, the powers of the two governments are concurrent, and yet supreme. I instanced yesterday a tax on a specific article. Both might lay the tax; both might collect it without clashing or interference. If the individual should be unable to pay both, the first seizure would hold the property. Here the laws are not in the way of each other; they are independent and supreme.

The final form of the Supremacy Clause was offered on the Convention floor by Luther Martin, the anti-federalist delegate from Maryland who was a strong opponent of federal power. The purpose of the clause was not to expand federal power but rather to delineate the proper roles of the federal and state governments in our constitutional system. And it means simply this: The federal government is supreme over all powers delegated to it by the Constitution. In all other areas, the federal government must defer to the states.

The Framers did not create a national government with thirteen (now fifty) administrative subdivisions. As representatives of the states, they created a confederate republic in which each state remains a vital entity. State governments are not only laboratories for experimentation; they are an important check on federal power.

May we never forget that federalism properly understood was and is the Framer’s formula for freedom!

Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and a Pastor of Woodland Presbyterian Church of Notasulga (woodlandpca.org).

Footnotes:

James Iredell, in Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 4:178-79

2 William Richardson Davie, Elliot 4:182

3 Alexander Hamilton, Elliot 2:362

4 Meese, Edwin, ed. The Heritage Guide to the Constitution (Regnery 2005) 291.

THE VIEWS OF SUBMITTED EDITORIALS MAY NOT BE THE EXPRESS VIEWS OF THE ALABAMA GAZETTE.