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ArtVI.C2.2.1 The Articles of Confederation and Supremacy of Federal Law

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.

The Supremacy Clause was a response to the political regime established under the Articles of Confederation (the Articles), which governed the United States from 1781 to 1789.1 The Articles established a weak national government, providing that the states retained their “sovereignty, freedom, and independence, and every Power, Jurisdiction, and right” that was not “expressly delegated to the United States, in Congress assembled.” 2 Under the Articles, the Confederation Congress—which performed both legislative and executive functions—had the power to wage war, coin money, establish post offices, and negotiate with Indian tribes.3 But the Confederation Congress could not levy taxes or regulate interstate commerce. Moreover, the Articles did not make federal law supreme over state law. While Article XIII required states to “abide by the determinations of” the Confederation Congress,4 the effect of that provision was limited. Indeed, under Article XIII, it was unclear whether federal law was binding in state courts without state legislation implementing it.5 James Madison thus criticized the Articles as establishing “nothing more than a mere treaty” of “amity of commerce” and “alliance” in which federal law was merely “recommendatory” for the states.6

Article XIII’s ambiguity on federal supremacy was particularly important vis-à-vis the Treaty of Paris, which ended the Revolutionary War between Britain and the United States in 1783.7 Among other things, the treaty prohibited “impediment[s]” to the recovery of pre-war debts.8 But the lack of clarity over federal supremacy—coupled with an absence of state legislation implementing the treaty—created uncertainties surrounding the enforcement of state laws impairing the rights of British creditors.9 These types of uncertainties—and broader dissatisfaction with the national government’s weakness—prompted the Confederation Congress to call for a convention in 1787 to “revis[e]” the Articles.10

Articles of Confederation and Perpetual Union (1777); but see Vasan Kesavan, When Did the Articles of Confederation Cease to be Law?, 78 Notre Dame L. Rev. 35, 44 (2002) (discussing academic arguments over whether the Articles of Confederation “cease[d] to be law” when the Constitution was ratified in the early summer of 1788, or when a new Congress and President assumed office in the spring of 1789). back
Articles of Confederation and Perpetual Union art. II. back
Id. art. IX. back
Id. art. XIII. back
See Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 247–48 (2000) ( “[Article XIII] did not necessarily mean that Congress’s acts automatically became part of the law applied in state courts; it could be read to mean only that each state legislature was supposed to pass laws implementing Congress’s directives. If a state legislature failed to do so, and if Congress’s acts had the status of another sovereign’s law, then Congress’s acts might have no effect in the courts of that state.” ). back
James Madison, “Vices of the Political System of the United States,” (Apr. 1787), in 9 The Papers of James Madison 345, 351–52 (Robert A. Rutland & William M.E. Rachal eds., 1975). back
Definitive Treaty of Peace Between the United States and His Britannic Majesty, U.S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80. back
Articles of Confederation and Perpetual Union art. IV. back
Nelson, supra note 5, at 248. back
Resolution of Congress (Feb. 21, 1787), in The Documentary History of the Ratification of the Constitution 45 (John P. Kaminski & Gaspare J. Saladino eds., 1981). back