article 6 clause 2, federalist 33, supremacy, supreme, supreme law of the land, U.S. Constitution
When I hear phrases like “supreme Law of the Land” and “supreme Court”, such as our founders gave them to us, seemingly instinctive imaginings are conjured of the purest greatness, with almost supernatural connotations. But yet, while ordering a burrito supreme or a supreme pizza, no thought comes to mind loftier than the greatness of food.
So what to make of it? This obvious relativity of supremacy, both in language and in truth, drags me to wonder whether my grandiose gut response to the likes of “supreme Law of the Land” is properly placed. And don’t misunderstand, I fully respect the Constitution and the Laws made pursuant thereof!
It also occurs to me that language, and the intrinsic reaction to given words in certain environs, as with the intrinsic strength of the word “supreme” itself, must have played a primary role in opposition to the phrase “supreme Law of the Land” in Article VI, clause 2 of the proposed Constitution.
Webster’s 1828 Dictionary first defines the adjective SUPREME as:
- Highest in authority; holding the highest place in government or power.
“The Federalist” is a series of articles published in newspapers back in 1787-88 to explain and promote the proposed U.S. Constitution. We’ll look at it because that’s how we do it! Writing in Federalist No. 33, paragraphs 6 & 7 (full text below), Alexander Hamilton makes the following points:
- Supremacy is integral to the very meaning of law, which would be nothing without it.
- Government is ONLY another word for political power and supremacy.
- Acts of a society which are NOT pursuant to its constitutional powers are NOT to be construed as the supreme law of the land, but mere invasions and usurpations that deserve to be treated as such.
- The declaration of the supremacy of law ONLY declares a truth that flows immediately and necessarily from the institution of a federal government, and the limitations on that supremacy were clearly noted.
- The necessity and propriety of laws are firstly judged by the national government, but FINALLY by its constituents.
- If the federal government should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify.
The word “supreme” is used seven times in our U.S. Constitution, six of which reference the Court, and the seventh (by order of appearance) is with respect to the “Law of the Land”. It is notable that “supreme” is never capitalized, but the nouns which they describe are always so.
Article VI, Clause 2: 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.
I think it conclusive that, in the context of law and government:
- Supreme is a mere adjective like any other, and relative only to the hierarchy of the authority of LAW.
- Supreme does NOT equal absolute, as it is conditional and limited, and even amendable.
- Supremacy has no bearing on class, or status, or any pecking order of men, furthermore, it affords NONE of the inhabitants of government… supremacy.
We should be careful to recognize the relativity of supremacy, and here on earth it is only a part of speech.
There is but One, in my estimation, that truly is Supreme.
Webster’s 1828 Dictionary elaborates on its first definition of SUPREME, saying:
- In the universe, God only is the supreme ruler and judge. His commands are supreme, and binding on all his creatures.
In our Declaration of Independence, and we find only one use of the word “Supreme” and yes, it is capitalized, where our Representatives are “appealing to the Supreme Judge of the world for the rectitude of our intentions”.
Federalist No. 33, ref. paragraphs 6 & 7:
6. But it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers, as upon the declaratory clause: and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers; and its constituents in the last. If the federal government should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced construction of its authority (which indeed cannot easily be imagined) the federal legislature should attempt to vary the law of descent in any state; would it not be evident, that in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the state? Suppose, again, that upon the pretence of an interference with its revenues, it should undertake to abrogate a land tax imposed by the authority of a state; would it not be equally evident, that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which the constitution plainly supposes to exist in the state governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners, who, in the imprudent zeal of their animosity to the plan of the convention, have laboured to envelope it in a cloud, calculated to obscure the plainest and simplest truths.
7. But it is said, that the laws of the union are to be the supreme law of the land. What inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A law, by the very meaning of the term, includes supremacy. It is a rule, which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government; which is only another word for political power and supremacy. But it will not follow from this doctrine, that acts of the larger society, which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive, that the clause which declares the supremacy of the laws of the union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed