The Supremacy Clause, Original Meaning and Modern Law

Speaking of practical originalism, the final as-published version of my article The Supremacy Clause, Original Meaning and Modern Law, 74 Ohio St. L.J. 559 (2013), is available here.  As mentioned, while the article is most directly about Article VI and the ways federal interests should and should not trump state law, it is more broadly about how original meaning can be implemented in an area with significant non-originalist judicial precedents.  Here is the abstract:

Under the U.S. Constitution, if federal interests conflict with state law, when must the latter give way? Although the Constitution’s text appears to resolve the question in Article VI’s supremacy clause, important recent scholarship argues that an approach anchored by the supremacy clause’s text cannot provide a practical account of modern law nor useful guidance for the future. More broadly, these critiques use the example of the supremacy clause to cast general doubt upon text-based originalism as a practical tool for resolving modern disputes. This article defends a textual approach to key modern issues of supremacy, including executive foreign affairs preemption, preemptive federal common law, and non-self-executing treaties. It finds that, while modern doctrine and modern conceptions of law differ somewhat from the outlook of the founding era, these differences are not insurmountable obstacles: a combination of text and stare decisis, as indicated by the Supreme Court’s approach to executive preemption in Medellin v. Texas, can supply workable solutions to modern supremacy debates. The article thus suggests that conventional academic concerns over the practicality of text-based originalism may be considerably overstated.

Thanks to the editors of the Ohio State Law Journal for their outstanding assistance on this project.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

The Supremacy Clause, Original Meaning and Modern Law

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Michael D. Ramsey

Michael D. Ramsey is Professor of Law and Director of International and Comparative Law Programs at the University of San Diego School of Law, where he teaches and writes in the areas of Constitutional Law, Foreign Relations Law and International Law.He is the author of THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS (Harvard University Press 2007), the co-editor of INTERNATIONAL LAW IN THE U.S. SUPREME COURT: CONTINUITY AND CHANGE (Cambridge University Press 2011), and author or co-author of numerous articles on foreign relations law in publications such as the Yale Law Journal, the University of Chicago Law Review, the Georgetown Law Journal and the American Journal of International Law.

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