The Originalist Framework and the Supremacy Clause

The Supremacy Clause, located at Article VI, Clause 2 of the U.S. Constitution, establishes that the Constitution, federal laws made pursuant to it, and treaties are the supreme law of the land, binding state judges and overriding conflicting state constitutions and laws. How judges interpret this clause has profound consequences for the balance of power between the national government and the states. Originalism, a dominant method of constitutional interpretation, offers a specific lens through which to read the Supremacy Clause, one that prioritizes the text’s historical meaning at the time of ratification. This article explores the foundations of originalism, its application to the Supremacy Clause, key historical and modern cases, and the ongoing debate over federalism.

Understanding Originalism

Originalism is not a monolithic philosophy but a family of interpretive theories that hold that the constitutional text has a fixed meaning, which was established when each provision was ratified. The two primary branches are original intent and original public meaning. Original intent focuses on what the Framers privately intended the words to mean, while original public meaning asks what a reasonable person at the time would have understood the text to mean. Modern originalism, as championed by Justice Antonin Scalia and others, overwhelmingly adopts the original public meaning approach because it grounds interpretation in the text’s objective meaning rather than subjective authorial intent.

Why Originalism Matters for the Supremacy Clause

The Supremacy Clause is a structural provision that allocates power between federal and state governments. An originalist interpretation requires examining late-eighteenth-century legal and political language to understand what “supreme law” meant to that generation. For originalists, the clause was not a blank check for federal expansion but a specific solution to the problems of the Articles of Confederation, under which state laws routinely violated national treaties and the Articles themselves. The clause was designed to make the new Constitution truly paramount, enforceable in state courts.

The Historical Context: The Supremacy Clause in 1787–1788

The Constitutional Convention drafted the Supremacy Clause to remedy the weaknesses of the Articles of Confederation. Under the Articles, the national government lacked authority to compel states to comply with national obligations. States passed laws that conflicted with treaties, taxed foreign commerce independently, and even issued their own currencies. The Framers understood that without a supremacy rule, the new federal government would be as ineffectual as its predecessor.

Debates at the Convention and Ratification

James Madison’s Virginia Plan originally proposed a congressional negative on state laws, but that was rejected as too intrusive. Instead, the Supremacy Clause, combined with the federal judiciary’s power under Article III, gave federal courts the authority to disregard state laws that conflicted with federal law. During ratification, Alexander Hamilton explained in Federalist No. 33 that the clause “only declares a truth, which flows immediately and necessarily from the institution of a federal government.” He argued that it did not grant new powers but merely ensured that the government could operate. James Madison, in Federalist No. 44, added that the clause was essential to prevent state encroachments: “Without a superintending power to maintain the harmony of the system, the confederacy would be a hydra in government.”

These writings are crucial for originalists because they provide evidence of the public meaning. The Framers saw the clause as establishing a hierarchical relationship: federal law would override state law whenever they conflicted, but only if the federal law was within the scope of enumerated powers.

Originalist Interpretation of Key Supremacy Clause Doctrines

Originalism shapes how courts apply the Supremacy Clause in concrete disputes. Two central doctrines are conflict preemption and field preemption. Originalists tend to demand clear evidence that Congress intended to displace state law, as the clause itself does not automatically nullify every state law that touches upon a federal subject. Instead, the clause enforces the constitutional allocation: state laws that actually conflict with federal law or that invade areas reserved exclusively to the national government are invalid.

McCulloch v. Maryland (1819)

The landmark case McCulloch v. Maryland is often cited as an originalist victory for federal supremacy. Chief Justice John Marshall, a staunch Federalist, held that Maryland could not tax the Bank of the United States because “the power to tax involves the power to destroy.” He reasoned that the Supremacy Clause combined with the Necessary and Proper Clause allowed Congress to create the Bank, and state taxation that impeded federal operations was unconstitutional. Originalists point to Marshall’s reliance on the structure of the Constitution and the intent of the Framers to prevent states from neutralizing federal powers. However, some modern originalists critique McCulloch for an overly broad reading of federal power, arguing that the original understanding of “necessary” was narrower than Marshall’s interpretation.

Gibbons v. Ogden (1824)

In Gibbons v. Ogden, Chief Justice Marshall again applied the Supremacy Clause to strike down a New York steamboat monopoly that conflicted with a federal license issued under the Commerce Clause. Marshall held that the Commerce Clause gave Congress power over all interstate commerce, and when Congress acted, state laws in that field were preempted. Originalists note that the decision respected the original meaning of “commerce” as including navigation, and that it left room for state police powers not conflicting with federal law. The case remains a foundation for originalist analysis of preemption.

The Modern Preemption Debate

In the twentieth and twenty-first centuries, Congress has enacted vast regulatory regimes touching on everything from environmental standards to food labeling. Originalists caution that the Supremacy Clause does not authorize Congress to preempt state law simply by declaring an intent to occupy a field, unless the federal law itself is within enumerated powers. For example, in Arizona v. United States (2012), the Supreme Court considered whether Arizona’s immigration enforcement law was preempted. Justice Scalia’s dissent argued that the original understanding of the Supremacy Clause left states with inherent police power to enforce immigration laws, because the federal government’s power over immigration was not exclusive at the Founding. This shows the ongoing relevance of originalist methodology to preemption disputes.

Criticisms of Originalism in Supremacy Clause Interpretation

Critics argue that originalism is indeterminate or that its application to the Supremacy Clause leads to undesirable outcomes. One common objection is that the historical record is too ambiguous to settle modern federalism questions. For example, the existence of state sovereignty doctrines like anti-commandeering (where the federal government cannot compel states to enforce federal law) is debated among originalists. Justice O’Connor’s opinion in New York v. United States (1992) relied partly on originalism, but some scholars contend the Founding generation accepted federal commandeering of state officials in certain contexts.

Another criticism is that originalism can produce results that seem inconsistent with national unity. For instance, a strict originalist reading might allow states to nullify federal immigration policy, as Justice Scalia argued in Arizona. Critics say this undermines the very supremacy the clause was meant to protect. Originalists respond that the clause is not self-executing; it requires interpretation. If the original meaning preserved state authority in certain areas, then respecting that meaning is a matter of constitutional fidelity, not policy preference.

Implications for Federalism and Judicial Review

Originalism’s application to the Supremacy Clause has direct consequences for how courts review federal statutes. An originalist judge will ask: Did the Framers understand the particular federal law as “in pursuance” of the Constitution? If yes, state law must yield. If not, the federal law itself is unconstitutional, and the Supremacy Clause does not apply. This approach curbs judicial activism because the judge is not free to invent new federal powers. It also reinforces a dual-federalism model where both the federal and state governments operate within their respective spheres.

The Role of the Presumption Against Preemption

Originalists often apply a presumption against preemption when interpreting federal statutes, particularly in areas traditionally regulated by states, such as health, safety, and land use. This presumption is rooted in the idea that the Supremacy Clause only displaces state law when the federal law genuinely conflicts, not merely because a federal interest exists. In Bates v. Dow Agrosciences LLC (2005), Justice Thomas (an originalist) wrote separately to argue that the presumption has a historical foundation: the Framers did not intend the Supremacy Clause to allow implied preemption on tenuous grounds. This contrasts with a more liberal approach that treats any federal regulation as automatically preempting state laws in the same field.

Case Studies in Contemporary Originalist Analysis

To see originalism in action with the Supremacy Clause, consider two recent Supreme Court battles:

Murphy v. NCAA (2018)

The Court struck down a federal law that prohibited states from authorizing sports gambling, holding that it violated the anti-commandeering doctrine. The majority opinion, written by Justice Alito, relied heavily on the original understanding that the Supremacy Clause works as a rule of decision, not a grant of power to command state legislatures. The dissent, by Justice Breyer, argued that the original purpose of the clause allowed Congress to preempt state laws directly, but not to issue commands to state governments. The case illustrates how originalism can produce clear rules protecting state sovereignty.

Knick v. Township of Scott (2019)

This case involved a property owner’s claim that a township’s ordinance violated the Takings Clause. Although not directly about the Supremacy Clause, the Court addressed whether the Supremacy Clause requires state courts to hear federal constitutional claims. Justice Thomas, in a concurrence, argued that the original meaning of the Supremacy Clause required state judges to apply federal law as supreme, but it did not mandate particular remedies. This approach limits the power of federal courts to dictate procedures to state courts, consistent with a federalist reading.

Practical Applications for Lawyers and Citizens

Understanding originalism’s impact on the Supremacy Clause is not just academic. It affects how attorneys argue preemption cases. An originalist judge will expect evidence of the historical meaning of the constitutional provision at issue, as well as the statute’s text. Lawyers should be prepared to cite the Federalist Papers, state ratification debates, and early Supreme Court decisions. Moreover, citizens who care about federalism should know that originalism does not automatically favor either expansive federal power or states’ rights; it depends on the original meaning of the specific power Congress claims. For example, originalists have upheld strong federal authority over interstate commerce while limiting federal power over intrastate affairs. The Supremacy Clause, in an originalist framework, is a neutral rule that enforces whatever allocation the Constitution originally set.

Conclusion

The originalist interpretation of the Supremacy Clause demands a careful return to the text and history of the founding era. It posits that the clause was designed to solve a concrete problem—state disobedience of national law—without granting Congress a general power to override state laws whenever it wishes. Instead, the clause ensures that valid federal law prevails over conflicting state law, and it leaves open the possibility that some state actions remain untouched even when they touch on federal subjects. While critics worry that originalism may hamper national uniformity, proponents contend that fidelity to the original meaning preserves the rule of law and prevents judges from substituting their policy preferences for the Constitution’s design. As the Supreme Court continues to hear cases on federal preemption, immigration, and environmental regulation, the originalist approach to the Supremacy Clause will remain a central battleground in American constitutional law.

For further reading on the original understanding of the Supremacy Clause, consult the Constitution Annotated essay from the Library of Congress. Key Federalist Papers, including Federalist No. 33 and Federalist No. 44, are available at the Avalon Project. For a detailed analysis of Supreme Court preemption cases, see the Legal Information Institute’s preemption overview.