“Federalism,” which refers to the allocation of powers between the federal and state governments, has been a source of contention since the dawn of the republic. American citizens have vigorously participated in discussions and debates about how and where the line of authority is drawn between the two spheres of governance and, as everyone knows, deeply-held, tragic misconceptions exploded in the form of the Civil War.
Historically, and in our time, many of the great political and legal issues that have enveloped the nation, have lain at the doorstep of federalism. Consider, for a moment, that the Civil Rights Movement, the Women’s Rights Movement, the very issue of voting requirements, qualifications and, yes, voter suppression, as well as the regulation of the economy, the environment, commerce, education and relations between and among the states, in addition to many others, have given rise to considerations of the scope, limits and contour of federalism. State legislators across the country, including North Dakota lawmakers, grapple with these questions every year.
The confusion surrounding the relative authority constitutionally granted to the federal government and the states, invites a review, in the form of several columns, of the constitutional provisions that shape this relationship. We begin with Article VI, the Supremacy Clause of the Constitution. The key provision in Article VI states: “ 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 of Laws of any State to the Contrary notwithstanding.”
The Anti-Federalists, those who opposed ratification of the Constitution, viewed the Supremacy Clause as menacing because they thought it superseded their state bills of rights and authorized the enactment of laws that were offensive to their personal rights. Many Anti-Federalists thought the enumerated powers in the Constitution, enforced by the Supremacy Clause, could be abused at a high cost to their rights and liberties. Patrick Henry, he of “give me liberty or give me death” fame, with a flair for hyperbole, feared that tax collectors, unrestrained by a ban on general search warrants, might invade homes “and search, ransack, and measure, everything you eat, drink, and wear.” Others thought the taxing power of Congress might target the free press and would, in the words of Richard Henry Lee, represent “a power to destroy or restrain the freedom of it.” Some feared that the power to tax might require the people to support a church or religious denomination. These concerns contributed to the pressure on the First Congress to enact a Bill of Rights which, when enacted, allayed the various fears through protection against unreasonable search and seizures (Fourth Amendment), stubborn support for a free press (First Amendment), and protection through the Establishment Clause of the First Amendment against governmental authority to require citizens to support religion. For most Anti-Federalists, except for those on the fringe that still longed for the Articles of Confederation, the problem was not the Supremacy Clause, but rather the lack of a Bill of Rights. In their eyes, that shortcoming was remedied in 1791 through the ratification of the Bill of Rights.
The Supremacy Clause is the cornerstone of federal power, national supremacy and, more than anything else, assurance that the Union will function effectively. This critical provision prevents the federal government from becoming subordinate to the states, which was the principal vice and futility of the Articles of Confederation. Under the Articles, states were sovereign, an arrangement that plundered the nation in every conceivable way, including anarchy, which left the Confederation Congress helpless to address the financial woes and national security threats that confronted the newly minted United States.
The Supremacy Clause, according to Chief Justice John Marshall, set forth two essential constitutional principles. First, states would be prohibited from interfering in any way with the functioning of the federal government. Any other arrangement, as Marshall made clear in the landmark case of McCulloch v. Maryland (1819), would render the federal government subordinate to state governments and, in fact, transfer supremacy back to the states, which would defeat the very purpose of the Constitutional Convention.
Second, federal action, whether in the form of a statute, treaty, court decision or administrative act, must prevail over any inconsistent state act. Justice Joseph Story, the most scholarly of Justices, explained the rationale—the necessity of uniformity-- in 1816, in Martin v. Hunter’s Lessee: without uniformity, “the laws, the treaties and the Constitution of the United States would be different in different states. The public mischiefs that would attend such a state of things would be truly deplorable.” Next week, we will consider some of those “public mischiefs.”
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