The Supremacy Clause — “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” — is likewise a product of the framers’ desire to bring state governments to heel as much as possible.
It is not for nothing that opponents of the Constitution singled out its treatment of the states as an egregious assault on the freedom of the American people. “To the Antifederalists the Constitution represented a repudiation of everything that Americans had fought for,” the historian Gordon Wood writes in “The Creation of the American Republic, 1776-1787.” “In the context of conventional eighteenth-century political thought the Constitution obviously represented a reinforcement of ‘energy’ at the expense of ‘liberty,’ a startling strengthening of the rulers’ power at the expense of the people’s participation in the government.”
One rejoinder here is simply the 10th Amendment to the Constitution, which says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This, for many conservatives, is an affirmation of the rights of states, one that proves the intent of the framers to protect the authority of state governments.
But for Madison, who wrote the amendment, it was a “superfluous” recapitulation of the principle that the federal government was one of enumerated, not inherent, powers. He saw “no harm in making such a declaration,” if it would assuage opponents worried, as the historian Pauline Maier wrote in “Ratification: The People Debate the Constitution, 1787-1788,” “that the Constitution failed to give states sufficient protection to guarantee their continued existence.”
And to ensure that it would not upset the balance of power established in the Constitution, Madison rejected the input of state ratifying conventions, which wanted the amendment to specify the “expressly delegated” powers of the United States. In the absence of that “expressly,” the new national government could, and would, take a broad view of its powers over the country and the states.
Why does this matter? What, if anything, does it have to do with the present? Well, to start, it is a useful corrective in light of emerging theories like the “independent state legislature” doctrine I mentioned before, which rests on a states-centric view of the Constitution that falls apart on cursory contact with the history in question.
Beyond the issue of tendentious legal theories lies the unresolved question of the states. Not only are we living at a moment when several states are moving with speed to curtail the right of their residents to obtain an abortion or live as a sexual minority, but we are also living at a time where the Supreme Court is working to curtail the ability of Congress to intervene on questions of voting rights, on top of the steps the court has already taken to limit the ability of Congress to bind and coerce the states on certain issues of national policy.