As the Philadelphia Convention concluded, 55 delegates returned to their home states and began the promotion/demotion phase of the ratification process. This process commenced with the convention delegates addressing the citizens of each state and each state’s ratification delegation. Each Framer communicated his comprehension of the legal elements of the charter negotiated for during this historic endeavor.
The delegates generally represented two distinct factions known as the Federalists, supporters of ratification, and the Anti-Federalists, those opposed to the proposed constitution. Delegates regularly traded intellectual barbs through written prose promulgated in the local periodicals of the states.
An occurence which became commonplace during this process was Maryland’s Attorney General, Luther Martin responding to letters written by the Landholder, a nom de plum (pen name), utilized by fellow Philadelphia Convention delegate Oliver Ellsworth of Connecticut, in which Mr. Ellsworth attempted to minimize Martin’s contributions and negatively impact his service.
Martin’s letter was published in the Baltimore Maryland Gazette on March 19, 1788.
The Landholder declares that I originated the clause which enacts that, 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, anything in the Constitution or the laws of any state to the contrary notwithstanding.
To place this matter in a proper point of view, it will be necessary to state, that as the propositions were reported by the committee of the whole house, a power was given to the general government to negative (veto) the laws passed by the state legislatures, a power which I considered as totally inadmissible.
In substitution of this I proposed the following clause, which you will find very materially different from the clause adopted by the Constitution,
The legislative acts of the United States, made by virtue and in pursuance of the articles of the union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far as those acts or treaties shall relate to the said states, or their citizens, and that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary not withstanding.
When this clause was introduced, it was not established that inferior continental courts should be appointed for trial of all questions arising on treaties and on the laws of the general government, and it was my wish and hope that every question of that kind would have been determined in the first instance in the courts of the respective states.
Had this been the case, the propriety and the necessity that treaties duly made and ratified, and the laws of the general government, should be binding on state judiciaries which were to decide upon them, must be evident to every capacity, while at the same time, if such treaties or laws were inconsistent with our constitution and bill of rights, the judiciaries of the states would be bound to reject the first and abide by the last.
Since in the form I introduced the clause, notwithstanding treaties and the laws of the general government were intended to be superior to the laws of our state government, where they should be opposed to each other, yet that they were not proposed nor meant to be superior to our constitution or bill of rights.
It was afterwards altered and amended (if it can be called an amendment) to the form in which it stands in the system now published.
James Madison later defended the Supremacy Clause in Federalist No, 45 declaring,
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Alexander Hamilton defines, “in pursuance thereof” in Federalist No. 33:
But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union … EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION.
In the next paragraph, Hamilton asserts that a law made by Congress and NOT authorized by the Constitution,
would not be the supreme law of the land, but a usurpation of power not granted by the Constitution.
Luther Martin (see link) has regularly been overlooked by history for the role he had in helping to construct the Constitution because he sought a general government which was “purely federal.” Even though Mr. Martin was unable to lend his signature to the Constitution, and lobbied against it at the Maryland Ratifying Delegation, the meaning he originally bestowed upon the Supremacy Clause, endured throughout the ratification process of the Constitution.
Luther Martin closes his correspondence addressed to the Landholder affirming:
That I expressed great regret at being obliged to leave Philadelphia, and a fixed determination to return, if possible, before the Convention rose, is certain–That I might declare that I had rather lose a hundred guineas than not to be there at the close of the business is very probable–and it is possible that some who heard me say this, not knowing my reasons, which could not be expressed without a breach of that secrecy to which we were enjoined, might erroneously have concluded that my motive was the gratification of vanity, in having my name enrolled with those of a Franklin and a Washington.
As to the first, I cordially join in the tribute of praise so justly paid to the enlightened philosopher and statesman, while the polite friendly and affectionate treatment myself and my family received from that venerable sage, and the worthy family in which he is embosomed, will ever endear him to my heart.
The name of Washington is far above my praise!–Would to Heaven that, on this occasion, one more wreath had been added to the number of those which are twined around his amiable brow!–that those with which it is already surrounded, may flourish with immortal verdure, nor wither or fade till time shall be no more, is my fervent prayer, and may that glory which encircles his head, ever shine with undiminished rays!
To find myself under the necessity of opposing such illustrious characters, whom I venerated and loved, filled me with regret, but viewing the system in the light I then did, and yet do view it, to have hesitated would have been criminal; complaisance would have been guilt.
If it was the idea of my State, that whatever a Washington or Franklin approved, was to be blindly adopted, she ought to have spared herself the expence of sending any members to the Convention, or to have instructed them implicitly to follow where they led the way.
Being perfectly willing to leave it to the cool and impartial investigation both of the present and of future ages to decide who best understood the science of government–who best knew the rights of men and of states–who best consulted the true interest of America, and who most faithfully discharged the trust reposed in them, those who agreed to, or those who opposed, the new Constitution–and so fully have I made up my own mind on this subject, that as long as the history of mankind shall record the appointment of the late Convention, and the system which has been proposed by them, it is my highest ambition that my name may be also recorded as one who considered the system injurious to my country, and as such opposed it.