Article Six Supremacy Clause & Article Seven Ratification Overview

This article delves into Articles Six and Seven of the U.S. Constitution, explaining their significance and historical context.

Article Six: The Supremacy Clause

Article Six, commonly known as the Supremacy Clause, establishes the U.S. Constitution as the supreme law of the land. This means it supersedes:

• Any state constitution or state law.
• Federal statutes.
• Federal treaties.
• All forms of state law, including statutory and judge-made law.

All federal and state officials, including judges, the President, Congress, cabinet officers, and state executive and legislative officers, are oath-bound to uphold the Constitution as the supreme law.

Contrast with the Articles of Confederation

The Articles of Confederation, the precursor to the Constitution, did not declare themselves as law, much less supreme law. State courts under the Articles often treated them as mere treaties, which could be superseded by later state statutes. This led to a lack of uniformity and enforcement. The Constitution explicitly rectified this by asserting its supremacy over all other laws.

Why is the Constitution Supreme?

The Constitution's supremacy stems from its deeper democratic foundation. Unlike ordinary laws, which are passed by elected representatives, the Constitution was ratified through a process involving special conventions where ordinary citizens had a direct say. This process, which took a full year, allowed for widespread public discussion and deliberation.

Amendments to the Constitution also hold a higher democratic pedigree than ordinary statutes. They require a supermajority vote (two-thirds of both the House and Senate, and three-fourths of the states), making them much harder to adopt and reflecting a broader democratic consensus. This difficulty in adoption implies that repealing an amendment should be equally challenging.

Democratic Gradient of Laws

The Supremacy Clause operates with a "democratic gradient":

1. The Constitution and its Amendments: These are at the highest level due to their profound democratic foundation. An older constitutional amendment will always trump a newer statute if there is a conflict.
2. Federal Statutes (in conformity with the Constitution): These are next, passed by a continental body, making them more democratically participatory than state laws.
3. Federal Treaties: Treaties are below the Constitution but above state constitutions and state laws. They represent the United States as a whole.
4. State Constitutions and State Statutes: These are at the lowest level in the federal hierarchy.

Treaties vs. Statutes

Historically, courts have often treated federal treaties and federal statutes as being on the same level, applying a "last in time" rule where the more recent of the two prevails in case of conflict. However, a closer look at the Constitution's wording in the Supremacy Clause ("Constitution, laws, and treaties") suggests that statutes might be considered higher than treaties due to the involvement of the House of Representatives, which provides greater democratic accountability.

Certain actions, such as raising an army, creating a new federal crime, raising an internal tax, or declaring war, are structurally designed to require the involvement of the House of Representatives, not just the Senate (which ratifies treaties). Similarly, repealing a statute that involved the House should also require its participation, not just a treaty. This implies that some treaties are not "self-executing" and require subsequent congressional legislation.

Indivisibility of the Union

The Supremacy Clause also reinforces the indivisibility of the Union. Once a state joins, it is bound by the Constitution and cannot unilaterally secede. The idea that states could leave if they didn't like the Constitution was never promoted by Federalists; instead, they emphasized the creation of a "more perfect union" for geostrategic reasons.

Article Seven: Ratification of the Constitution

Article Seven details the process by which the Constitution was to be "ordained and established," clarifying the meaning of "We the People of the United States."

"We the People" Defined

Article Seven specifies that the Constitution would be ratified by special conventions in each state, rather than by ordinary state legislatures. This was intended to ensure that the decision came directly from the people, making the ratification process as democratic as possible in 1787. While the specific rules for selecting delegates varied, the goal was to make these conventions truly representative.

The concept of a direct referendum was not yet established at the time. Instead, the framers opted for conventions where elected representatives could deliberate and discuss the Constitution before voting, reflecting the belief that laws require discussion and not just a simple vote.

"United States" Defined

Article Seven also clarifies what "United States" meant for the purpose of ratification. It stipulated that the Constitution would go into effect among the states that ratified it once nine states had said "yes." This was a significant departure from the Articles of Confederation, which required unanimous consent from all thirteen states for any amendments.

The rationale for requiring only nine states was pragmatic: the Articles of Confederation were failing, and some states (like Rhode Island) were unlikely to ratify a new system. Since each state was considered sovereign under the Articles, a state could only be bound by the new Constitution if it consented. However, once a state consented and joined the new Union, it was "in" and bound by its provisions.

This concept is further reinforced by Article Five, which states that once a state ratifies the Constitution, it is bound by future amendments even if it votes against them, provided three-fourths of the other states approve. This highlights the fundamental difference between the initial ratification process (Article Seven) where states could choose to join or not, and the amendment process (Article Five) where, once in, states are bound by the collective decision of the Union.

The initial Union under the Constitution began with only eleven states, as North Carolina and Rhode Island ratified later. This demonstrates that the new "more perfect union" was not a mere league of sovereign states but an indivisible entity.