Georgetown Center for the Constitution

Contending, based on text and structure as well as the Clause’s drafting history, that the Supremacy Clause was understood as a measure to reinforce both the separation of powers and federalism by limiting the types of “Law” which have the preemptive effect to the Constitution, federal laws passed by Congress, and treaties. Concluding, therefore, that administrative actions do not qualify for the Supremacy Clause’s preemptive effect.

Arguing that the “Laws” to which the Supremacy Clause refers are those passed pursuant to Congress’s lawmaking power under Article I, Section 7, i.e. federal statutes; treaties; and the Constitution.

Documenting Hamilton’s view that the Supremacy Clause was redundant and did not change the nature of any laws; rather, it was drafted to legitimate the authority of the federal government. Contending further that nothing in the original meaning of the Supremacy Clause calls for preemption cases to use a different method of statutory interpretation than other federal laws.

Responding to Mitchell’s article by agreeing in some ways with his interpretation of the Supremacy Clause but disagreeing by arguing that “the constitutional case against precedent does not depend upon the Supremacy Clause.” Instead, Lawson narrows the Supremacy Clause to read it as “deal[ing] with one specific set of conflicts among sources of law that would predictably arise once the Constitution was ratified” but that the Clause “does not purport to exhaust the universe of conflict-of-laws principles.”

Arguing that the original meaning of the Supremacy Clause permits judges to invoke precedent rather than “invalidate every federal statute that contravenes a federal constitutional provision” but does not permit the use of “stare decisis to sustain a litigant’s challenge to an act of Congress.”

Concluding that the Supremacy Clause was originally understood as making treaties operative as a matter of domestic law and judicially enforceable, thereby remedying the deficiency of the Articles of Confederation, which included the power to enter into treaties but not to enforce them.

Contending that the Supremacy Clause was not understood as applying to federal judge-made common law based on common law being viewed as a distinct body of law in the eighteenth century and the text of the Clause. Arguing that this conclusion is bolstered by the history of the Clause’s drafting, where the small states–those that fought for the Equal Suffrage Clause–understood the Supremacy Clause to serve as a federalism assurance mechanism by applying only to those laws made with the participation of the Senate.

Arguing that the Supremacy Clause was intended to create a presumption in favor of self-execution of treaties and was necessary to prevent states from being able to counter the federal government’s ability to comply with treaties.

Contending based on Framing-era evidence that the term “Laws” in the Supremacy Clause was not understood to incorporate the customary law of nations.

Arguing that the the founders intended for the Supremacy Clause to be the only constitutional prescription for disregarding state law. Concluding, therefore, that the Erie doctrine is in line with the original understanding of the Supremacy Clause.

Concluding that the Supremacy Clause was not understood to make treaties enforceable without domestic implementing legislation given the important function of the senate’s check on the executive’s treaty power.