Absolute federal supremacy is a myth that just won’t go away.
Most people think the supremacy clause in the Constitution means the federal government can do whatever it wants. Under this warped theory of constitutional interpretation, the mere fact that Congress does something makes it the “supreme law of the land.”
But to think anybody in the founding era would have accepted this interpretation is nuts.
In fact, nobody thought this.
St. George Tucker wrote the first systematic commentary on the constitution. Regarding the supremacy clause, he said it would be “extraordinary, that a people jealous of their liberty, and not insensible of the allurement of power, should have entrusted the federal government with such extensive authority as this article conveys:”
So, there must be another way to look at it right?
It’s really pretty simple, the federal government is only supreme when it acts within the limits of its constitutional powers. That’s exactly what the supremacy clause says.
“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;”
Tucker explained it this way.
“A law limited to such objects as may be authorized by the constitution, would, under the true construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void.” [Emphasis added]
Not only is an unconstitutional act not supreme. It’s as if it doesn’t even exist. And it should be treated that way.
This wasn’t some novel interpretation. This was how supporters of the Constitution explained it during the ratification debates. Even Alexander Hamilton conceded that any federal act outside of its constitutionally delegated powers would be “void.”
“There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”
