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The Death of Treaty SupremacyAn Invisible Constitutional Change$

David L. Sloss

Print publication date: 2016

Print ISBN-13: 9780199364022

Published to Oxford Scholarship Online: September 2016

DOI: 10.1093/acprof:oso/9780199364022.001.0001

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The Origins of Treaty Supremacy: 1776–1787

The Origins of Treaty Supremacy: 1776–1787

(p.17) 1 The Origins of Treaty Supremacy: 1776–1787
The Death of Treaty Supremacy

David L. Sloss

Oxford University Press

Abstract and Keywords

When the Constitution’s Framers met in Philadelphia in 1787, one of their primary goals was to persuade European powers that the United States could be trusted to fulfill its international obligations. In the decade since adoption of the Declaration of Independence in 1776, the United States had repeatedly violated treaties with European countries. Repeated infractions of international law were directly attributable to the structure of government under the Articles of Confederation, which created a weak national government that was powerless to control the individual states. The treaty supremacy rule, codified in the Supremacy Clause, was a central element of the Framers’ plan for a Constitution that would ensure the nation’s ability to comply with its international obligations.

Keywords:   Articles of Confederation, Supremacy Clause, Framers, treaty supremacy, treaty violations

The United States declared its independence in 1776, creating a loose confederation among thirteen sovereign states. The United States concluded three treaties with France in 1778, including a Treaty of Alliance and a Treaty of Amity and Commerce.1 The new nation did not adopt a formal document to codify the powers of the national government until 1781. The Articles of Confederation, in force from 1781 to 1789, stipulated: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States.”2 Thus, under the Articles, power was concentrated mostly in state governments. The national government consisted primarily of a single body, the Congress of the United States. Congress had “the sole and exclusive right and power of … entering into treaties and alliances.”3 Congress exercised this power to conclude treaties with the Netherlands, Sweden, France, Prussia, Morocco, and the United Kingdom between 1782 and 1786.4

I. Treaty Violations under the Articles of Confederation

Although the Continental Congress had the power to make treaties, it lacked substantial legislative power. Hence, Congress depended on the states to implement treaties. The problems inherent in such a decentralized governmental structure became apparent soon after the United States concluded a peace treaty with the United Kingdom. Under Article 7 of the 1783 peace treaty, “his Brittanic Majesty” promised to “withdraw all his armies, garrisons, and fleets from the said United States, and from every post, place, and harbor within the same.”5 When Britain failed to implement this promise, John Adams, the minister plenipotentiary from the United States to Britain, delivered a diplomatic message to the British secretary of state, Lord Carmarthen, protesting Britain’s failure to remove its troops.6 Carmarthen responded by summarizing British complaints about U.S. violations of the peace treaty. Carmarthen’s message described in detail “the grievances complained of by Merchants and other British Subjects having estates, property and debts due to them in the several States of America.”7 John Jay, the U.S. secretary for foreign affairs, concluded (p.18) that the British had many legitimate grievances about U.S. treaty violations, which were generally attributable to the actions of state governments.8 Jay and other national leaders wanted the states to comply with the peace treaty. Under the Articles of Confederation, though, Congress was unable to compel state compliance.

Lord Carmarthen concluded his note to Adams as follows: “I can assure you, Sir, that whenever America shall manifest a real determination to fulfil her part of the treaty, Great Britain will not hesitate to prove her sincerity to cooperate.”9 In short, treaty violations attributable to state governments provided a justification for Britain to postpone removal of its troops from U.S. territory, and Britain’s willingness to remove its troops depended on a demonstration of U.S. resolve to halt such treaty violations. Thus, Congress’s inability to compel state compliance with treaties posed a serious national security problem. “The continued occupation of the garrisons by the British Army jeopardized the security of the northern frontier and blocked vital trade routes.”10

Meanwhile, the United States’ economy suffered from a serious depression through much of the 1780s.11 Thomas Paine quipped that the American states were “in want of two of the most essential matters which governments could be destitute of—money and credit.”12 Several factors contributed to the economic depression, but Britain’s imposition of retaliatory trade measures was a significant one. “America was now subject to Britain’s restrictive trade measures, excluded from the lucrative British West Indian trade … and liable to all the discriminatory duties levied against foreign bottoms in its direct trade with other countries.”13 To make matters worse, “restrictive trade measures were also being imposed by America’s ally, France, and in turn by Louis XVI’s ally, Spain.”14 A key goal of U.S. diplomacy during the 1780s was to negotiate commercial agreements with Britain and other European countries to help promote economic development at home. However, European nations were reluctant to enter into trade treaties with the United States because they knew that the national government could not guarantee treaty compliance by the states. “Continued treaty violations on the part of the American [states] served to dampen such sentiment as existed in England for a reciprocal trade treaty.”15 Thus, Congress’s inability to compel state compliance with treaties created serious economic difficulties for the young nation.

Aside from national security and economic concerns, treaty compliance was a matter of national honor. John Jay wrote:

Contracts between Nations, like contracts between Individuals, should be faithfully executed … honest nations like honest Men require no constraint to do Justice; and tho impunity and the necessity of Affairs may sometimes afford temptations to pare down contracts to the Measure of convenience, yet it is never done but at the expence of that esteem, and confidence, and credit which are of infinitely more worth than all the momentary advantages which such expedients can extort.16

(p.19) Similarly, Alexander Hamilton was ashamed by the country’s inability to fulfill its international obligations. He said:

We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely any thing that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation.17

In sum, the national government’s inability to compel states to comply with treaties created both economic and national security problems. It was also a source of national shame and dishonor. Even under the Articles of Confederation, though, national leaders began to sow the seeds for a doctrine of treaty supremacy, which would come to fruition with adoption of the Constitution. The next two sections discuss those seeds in Rutgers v. Waddington and in John Jay’s report to Congress.

II. Rutgers v. Waddington

The Mayor’s Court of the City of New York decided the case of Rutgers v. Waddington in August 1786.18 Mayor James Duane sat as chief judge and authored the court’s opinion. During the Revolutionary War, Elizabeth Rutgers fled New York City when the British military occupied the city, leaving behind an abandoned brewhouse. Joshua Waddington, a British merchant, acting under the authority of the British military, occupied the brewhouse from September 1778 until June 1783.19 After the war, the New York legislature passed a statute authorizing New York citizens whose property had been occupied to file trespass actions against British subjects. The statute provided specifically that no defendant “shall be admitted to plead in justification any military order or command whatever of the enemy for such occupancy.”20 Rutgers sued Waddington under the New York trespass law, seeking eight thousand pounds in compensatory damages for the occupation of her brewhouse. Thus, Rutgers presented an apparent conflict between the law of nations, which provided a “military orders” justification for Waddington, and the New York statute, which appeared to bar such a defense.

Alexander Hamilton represented Waddington in the case. Hamilton advanced several distinct arguments, but two are important for present purposes. First, under the law of nations, “[t]‌he enemy having a right to the use of the Plaintiffs property & having exercised their right through the Defendant … he cannot be made answerable to another without injustice and a violation of the law of Universal society.”21 Thus, in Hamilton’s view, the law of nations barred a judgment requiring Waddington to pay damages to Rutgers. Second, “to make the Defendant answerable would be a breach of the Treaty of Peace,”22 because (p.20) under the law of nations every treaty of peace includes an implied amnesty for wartime actions that cause damage to property.

The court’s opinion divided defendant’s occupation of plaintiff’s property into two phases. Before April 30, 1780, the occupation was not justified under the law of nations because defendant acted under the authority of the commissary general, a civilian officer who exercised no lawful authority under the laws of war. However, after April 30, 1780, the occupation was justified under the law of nations because defendant acted under the authority of the British commander in chief.23 Hence, with respect to the period after April 30, 1780, the court said: “We are therefore of opinion, that restitution of the fruit, or in other words, the rents and issues of houses and lands, which have been bona fide, collected by or under the authority of the British Commander, while he held possession of the city, cannot, according to the law of nations, be required.”24

The court also agreed partially with Hamilton’s argument that the peace treaty with Britain included an implied “amnesty and oblivion of damages and injuries in the war.”25 However, the court said, the amnesty applies only to acts done in relation to the war, and the occupation before April 30, 1780, “had no relation to the war.”26 Moreover, as the peace treaty did not include an express amnesty provision, defendant’s argument hinged on an implied amnesty under the law of nations. Thus, the “amnesty” argument and the “lawful occupation” argument both led to the same result: defendant had a valid argument under the law of nations for the period after April 30, 1780.

This conclusion, in turn, raised another question. The court had to decide “whether the courts of justice ought to be governed by the [New York] statute, where it clearly militated against the law of nations.”27 During the 1780s, courts in most states applied their own state laws, even where those laws conflicted with the peace treaty and/or the law of nations.28 In contrast, Hamilton argued that “[t]‌he judges of each state must of necessity be judges of the United States. And they must take notice of the law of Congress as a part of the law of the land.” Specifically, “in respect to foreigners they must judge according to that law which alone the constitution knows as regulating their concerns,” that is, the law of nations.29

Several passages in the court’s opinion addressed the relationship between international law and New York state law, but the court’s pronouncements on this question were inconsistent. In one passage, for example, the court defended the principle of legislative supremacy. “The supremacy of the [New York] Legislature need not be called into question; if they think fit positively to enact a law, there is no power which can control them. When the main object of such a law is clearly expressed, and the intention manifest, the Judges are not at liberty, although it appears to them to be unreasonable, to reject it: for this were to set the judicial above the legislative, which would be subversive of all government.”30 This passage strongly suggests that, in the event of a conflict between the law of nations and a New York statute, state courts are bound by the statute.

However, other passages contradict this view. Hamilton argued in his brief that “[t]‌he power of Congress in making Treaties is of a Legislative kind. Their proclamation enjoining the observance of [the peace treaty] is a law. And a law (p.21) Paramount to that of any particular state.”31 In one passage, the court seemingly agreed with this argument: “The federal compact hath vested Congress with full and exclusive powers to make peace and war. This treaty they have made and ratified, and rendered its obligation perpetual. And we are clearly of opinion, that no State in this union can alter or abridge, in a single point, the federal articles or the treaty.”32 Thus, the court endorsed the principle of treaty supremacy, rather than (state) legislative supremacy.

In addition to defending treaty supremacy, Hamilton made a similar argument for the supremacy of the law of nations over New York law. “Congress have the exclusive direction of our foreign affairs & of all matters relating to the Laws of Nations. No single state has any legal jurisdiction to alter them… . While the Confederation exists a law of a particular state derogating from its constitutional authority is no law.”33 In one passage, the court appeared to endorse this argument as well. It said that the several states of the United States “must be governed by one common law of nations; for on any other principles how can they act with regard to foreign powers; and how shall foreign powers act towards them?” Moreover, the court continued, “to abrogate or alter any one of the known laws or usages of nations, by the authority of a single state, must be contrary to the very nature of the confederacy … as well as dangerous to the union itself.”34

Ultimately, the Rutgers court dodged questions about the supremacy of international law over state law by construing the New York trespass statute in harmony with the law of nations. It said: “The repeal of the law of nations, or any interference with it, could not have been in contemplation, in our opinion, when the Legislature passed this statute; and we think ourselves bound to exempt that law from its operation.”35 The court concluded that whoever “is clearly exempted from the operation of this statute by the law of nations, this Court must take it for granted, could never have been intended to be comprehended within it by the Legislature.”36 Thus, despite what appeared to be a stark conflict between the New York statute, which barred a military orders defense, and the law of nations, which authorized such a defense, the court concluded that there was no conflict between the New York statute and the law of nations. Both Hamilton’s brief and the court’s opinion planted seeds for the later adoption of the Constitution’s treaty supremacy rule.

III. John Jay’s Report to Congress

This chapter referred above to Lord Carmarthen’s diplomatic note summarizing British complaints about U.S. violations of the 1783 peace treaty. Britain’s concerns focused on Articles 4, 5, and 6. In Article 4, the United States promised that American debtors would repay their debts to British creditors. Article 5 offered protection for land owned by British subjects in the United States. Article 6 prohibited punitive measures against those who supported Britain during the war.37

John Adams, the U.S. minister in London, forwarded Lord Carmarthen’s note to John Jay, the U.S. secretary for foreign affairs. Jay undertook a detailed study to determine, among other things, “[w]‌hether any and which of the Acts (p.22) enumerated in the [British] List of Grievances do violate the treaty of peace between the United States and Great Britain?”38 After completing an exhaustive review of state laws and policies, Jay concluded: “From the aforegoing review of the several Acts complained of, it is manifest, that the 4th and 6th Articles of the treaty have been violated by certain of them.”39 Moreover, he added, “it is certain that deviations on our part preceded any on the part of Britain; and therefore instead of being justified by them, afford excuse to them.”40 Thus, treaty violations attributable to the acts of state governments provided a justification for Britain to postpone removal of its troops from U.S. territory.

In light of his conclusions, Jay recommended that Congress adopt three resolutions to address the problem of state treaty violations. The first stipulated “[t]‌hat the legislatures of the several States cannot of right pass any act or acts … for restraining, limiting or in any manner impeding, retarding or counteracting the operation or execution of” the peace treaty. The second added: “That all such acts or parts of Acts as may be now existing in either of the States, repugnant to the treaty of peace, ought to be forthwith repealed.”41

Two other passages in Jay’s proposed resolutions anticipated the future language of the Supremacy Clause. The first resolution stated that ratified treaties “become, in virtue of the Confederation, part of the law of the land, and are not only independent of the will and power of such [state] Legislatures, but also binding and obligatory on them.”42 Thus, even under the Articles of Confederation, Jay asserted that treaties were supreme over state laws. Jay’s third proposed resolution recommended that states pass laws stipulating “that the Courts of law and equity in all Causes and questions cognizable by them respectively, and arising from or touching the said treaty, shall decide and adjudge according to the true intent and meaning of the same, any thing in the said Acts or parts of Acts to the contrary thereof in any wise notwithstanding.”43 This language is similar to the final clause of the Supremacy Clause, which directs state judges to apply treaties, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Thus, Jay’s proposed resolutions anticipated both aspects of the Constitution’s treaty supremacy rule: that valid, ratified treaties supersede conflicting state laws; and that state courts have a duty to apply the treaty when there is a conflict between a treaty and state law.

The Continental Congress adopted Jay’s proposed resolutions almost verbatim.44 Congress then asked Jay to draft a letter to the states. Jay provided a seven-page letter addressing violations of the 1783 peace treaty by state governments and recommending measures to remedy those violations. Congress endorsed Jay’s letter and transmitted it to state governments.45 That letter stated in part:

Not only the obvious dictates of religion, morality and national honor, but also the first principles of good policy, demand a candid and punctual compliance with engagements constitutionally and fairly made … It is our duty to take care that all the rights which they [the British] ought to enjoy within our Jurisdiction by the laws of nations and the faith of treaties remain inviolate. And it is also our duty to provide that the essential interests and peace (p.23) of the whole confederacy be not impaired or endangered by deviations from the line of public faith into which any of its members may from whatever cause be unadvisedly drawn.46

Thus, Congress affirmed that treaty compliance was a matter of both national honor and national security.

The letter from Congress to the states also affirmed the crucial role of state courts in enforcing treaties:

In cases between Individuals, all doubts respecting the meaning of a treaty, like all doubts respecting the meaning of a law, are in the first instance mere judicial questions, and are to be heard and decided in the Courts of Justice having cognizance of the causes in which they arise; and whose duty it is to determine them according to the rules and maxims established by the laws of Nations for the interpretation of treaties.47

However, state courts took a different view of the matter. Despite Congress’s exhortations, state courts continued to apply state laws and disregard the peace treaty with Britain. The persistent refusal of state courts to apply the peace treaty was a key factor that led to the call for a constitutional convention.

IV. The Constitutional Convention

Representatives from twelve of the thirteen states met in Philadelphia for almost four months between May and September 1787 to draft a new Constitution for the United States. As Professor Ramsey notes, “there is general agreement [among historians] that foreign affairs difficulties were a root—if not the root—of the drive to replace the Articles” of Confederation with a new Constitution.48 In April 1787, as he was preparing for the Constitutional Convention, James Madison drafted a famous essay entitled “Vices of the Political System of the United States.” One key vice he identified was the repeated “violations of the law of nations and of treaties.”49 Similarly, near the very beginning of the Convention, Edmund Randolph identified the inability of Congress to prevent the infraction of treaties as one of the chief defects of the Articles of Confederation.50

Congress’s inability to compel state compliance with international law can be viewed as one aspect of a larger problem: its inability to compel state compliance with national law. Under the Articles of Confederation, Alexander Hamilton observed, the laws enacted by Congress were “in theory … constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.”51 Thus, when the Framers met to draft a new Constitution, they all agreed that the national government should have the power to compel state compliance with both national law and international obligations. State violations of national and international law were two aspects of the same underlying problem, and both required a similar solution.

(p.24) During the Constitutional Convention, delegates discussed two competing proposals for remedying the problem of state violations of national and international law. The initial discussions focused on the “Virginia Plan.” Under that proposal, Congress would have had the power “to negative all laws passed by the several States contravening, in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the union.”52 If the Convention had adopted this proposal, it would have given Congress a direct veto over all state laws that impeded accomplishment of the objectives embodied in national laws or treaties. Advocates of a stronger, centralized national authority generally favored the Virginia Plan.53 However, delegates who favored greater state autonomy objected to the proposed power to “negative” state laws. Gouverneur Morris said, “The proposal of it would disgust all the States.” Luther Martin “considered the power as improper and inadmissible.” On July 17, the delegates voted to reject this particular feature of the Virginia Plan.54

The competing proposal was the “New Jersey” plan. In its initial formulation, the New Jersey Plan provided “that all Acts of the U. States … and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States … and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding.”55 After a series of editorial changes, this provision ultimately became the Supremacy Clause.56 Like the Virginia Plan, the New Jersey Plan provided a single mechanism for invalidating state laws that conflicted with federal statutes and treaties. Unlike the Virginia Plan, which would have empowered the national legislature to invalidate state laws, the New Jersey Plan required state courts to invalidate state laws that conflicted with federal statutes and treaties.

James Madison favored the Virginia Plan; he objected that “[c]‌onfidence cannot be put in the State Tribunals as guardians of the National authority and interests.”57 Despite his and others’ objections, the delegates approved a variant of the New Jersey proposal immediately after they rejected the Virginia proposal for a legislative “negative” over state laws. The text they approved required state courts to invalidate state laws that conflicted with federal statutes or treaties.58 Professor Rakove notes: “Here in seminal form was the supremacy clause of the Constitution—but ironically presented as a weak” alternative to the Virginia Plan.59 Advocates of greater state autonomy favored this “weaker” alternative because it gave primary responsibility to state courts to enforce the supremacy of treaties (and federal statutes) over conflicting state laws. Notably, even the staunchest defenders of state autonomy agreed that the Constitution must include some mechanism to invalidate state laws that conflicted with treaties. Professor Vázquez notes: “The rejection of the Virginia plan thus reflects a decision not to make the legislature the primary interpreter and enforcer of treaties against the states, and the adoption of the Supremacy Clause represents a decision to vest this power and duty in the courts.”60

I stated previously that the Framers agreed to address the problem of state treaty violations by vesting power over treaty compliance in the national (p.25) government. One could argue that rejection of the Virginia Plan and adoption of the Supremacy Clause contradicts that claim, because the Supremacy Clause effectively makes state courts the first line of defense in addressing state treaty violations. However, state court decisions involving the interpretation or application of treaties can be appealed to the U.S. Supreme Court.61 Moreover, the Constitution authorizes Congress to create lower federal courts and extends the federal judicial power to cases arising under treaties.62 Thus, state courts are the first line of defense, but they are not the last. The Supreme Court has the power to review state court decisions involving treaties, and Congress has the power to channel treaty cases into lower federal courts if it decides that state courts are not sufficiently attentive to the federal interest in treaty compliance. In this way, the constitutional provisions involving courts and treaties ensured federal control over treaty compliance, while also respecting state autonomy.

V. The Constitution’s Text

The Constitution includes several distinct provisions related to treaties. Article I provides: “No State shall enter into any Treaty, Alliance or Confederation.” Article I further adds: “No State shall, without the Consent of Congress … enter into any Agreement or Compact … with a foreign Power.”63 By denying states the power to enter into international agreements, Article I manifests the Framers’ agreement to centralize control over international agreements in the national government.

Article II grants the president the power to make treaties “by and with the Advice and Consent of the Senate … provided two-thirds of the Senators present concur.”64 Two points are evident from the text. First, Article II excludes the House of Representatives from the treaty-making process. Second, Article II imposes no explicit restriction on the subject matter of treaties. A third point is less obvious, but perhaps more important: Article II manifests the Framers’ commitment to protect state interests. Under the original constitutional design, state legislatures selected senators to represent the states.65 Thus, the decision to require Senate consent for treaties, combined with the requirement for a two-thirds majority vote in the Senate, gave states significant power to prevent the national government from concluding treaties contrary to state interests.

Whereas states retained some power to inhibit treaty ratification, the constitutional text and structure manifest a clear decision to deny states the power to obstruct compliance with valid, ratified treaties. Several constitutional provisions address treaty implementation, either implicitly or explicitly. The Executive Vesting Clause in Article II vests the “executive power … in a President of the United States.” The Take Care Clause obligates the president to “take Care that the Laws be faithfully executed.”66 At the Founding, there was general agreement that the president’s responsibility for executing “the Laws” included the power and duty to execute treaties.67 The Necessary and Proper Clause in Article I grants Congress the power “[t]‌o make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the (p.26) Government of the United States.”68 As the Treaty Power is one of the powers vested by the Constitution in the federal government, the Necessary and Proper Clause has generally been understood to grant Congress the power to enact laws that are “necessary and proper” for implementing treaties.69 Whether it is “proper” for Congress to use this power to regulate matters that would otherwise be subject to exclusive state control is contested, but the basic idea that Congress can enact legislation to implement treaties was not controversial until recently.70

Article III, Section 2 provides: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”71 The contrast with Article I and II is striking. Under Article I, Congress’s role in implementing treaties is implicit, not explicit; the Necessary and Proper Clause does not mention treaties explicitly. Similarly, under Article II, the president’s role in implementing treaties is implicit, not explicit. Article II grants the president an explicit power to make treaties, but the president’s power to implement treaties is merely implicit in the Executive Vesting Clause and the Take Care Clause. In contrast, Article III grants the federal judiciary an explicit power to implement treaties by specifying that the judicial power extends “to all Cases … arising under … Treaties.” This explicit constitutional text demonstrates that the Framers expected courts to play an important role in treaty enforcement.72

After the Senate consents to ratification, and the president ratifies a treaty, the Supremacy Clause specifies that the treaty becomes “the supreme Law of the Land; and the Judges in every State shall be bound thereby.”73 The Supremacy Clause applies equally to federal statutes and treaties. In Professor Nelson’s terms, it establishes a “rule of applicability,” specifying that federal statutes and treaties are applicable in state courts. “At least as far as the courts are concerned, then, federal statutes [and treaties] take effect automatically within each state and form part of the same body of jurisprudence as state statutes.”74 The word “automatically” is important here. Although many people in the Founding generation thought that congressional legislation was necessary for treaties to override federal statutes (see Chapter 3), the consensus view was that treaties automatically supersede conflicting state law, and no legislation was necessary for that purpose.

In addition to establishing a rule of applicability, the Supremacy Clause also creates a “rule of priority.” By declaring that federal statutes and treaties are “supreme,” the Constitution directs state courts to give precedence to federal law over state law whenever there is a conflict, “even if the state law had been enacted more recently.”75 Thus, by creating a constitutional duty for state courts to apply treaties when there is a conflict between a treaty and state law, the Constitution restricts the power of state legislatures to obstruct compliance with treaty obligations.

The final phrase of the Supremacy Clause reinforces the centrality of courts in the constitutional scheme to prevent states from obstructing compliance with valid, ratified treaties. That phrase adds: “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” As Professor Nelson explains, (p.27) this phrase is a “non obstante” provision. Absent the non obstante provision, state courts might reasonably have applied the well-established presumption against implied repeals—an interpretive principle that directs courts to construe a later law in harmony with an earlier law, unless the lawmaker clearly intended to repeal the earlier law. If courts applied that presumption, they would construe federal statutes and treaties narrowly to avoid conflicts with previously enacted state laws. The non obstante provision directs state courts not to apply the presumption against implied repeals, and instead, to interpret federal statutes and treaties in accordance with their ordinary meaning, even if that results in the repeal of an otherwise valid state law.76

In sum, the Supremacy Clause, viewed as a whole, was crafted to ensure that valid, ratified treaties automatically repeal conflicting state laws, including state laws that were unknown to the treaty drafters at the time they wrote the treaty. According to the text of the Supremacy Clause, the key criterion for a treaty to repeal (or invalidate) a state law is not the “intent of the treaty drafters,” but rather the existence of a conflict between federal and state law. Insofar as modern judicial doctrine emphasizes intent, rather than conflict, as the touchstone for self-execution analysis, that doctrine has strayed from the original understanding of the Supremacy Clause. (Chapter 8 discusses the origins of the “intent” doctrine.) (p.28)


(1.) Treaty of Amity and Commerce, U.S.-Fr., Feb. 6, 1778, 8 Stat. 12; Treaty of Alliance, U.S.-Fr., Feb. 6, 1778, 8 Stat. 6.

(2.) Articles of Confederation, art. II.

(3.) Articles of Confederation, art. IX.

(4.) See 2 Miller, at 59–227 (reproducing text of treaties).

(5.) 1783 treaty with Britain, art. 7.

(6.) The text of Adams’s Memorial is reproduced in 31 J. Cont. Cong., at 781–82.

(7.) Id., at 784.

(8.) Id., at 862.

(9.) Id., at 784.

(10.) Morris (1984), at 201.

(11.) See id., at 130–61.

(12.) Id., at 152 (quoting Thomas Paine).

(13.) Id., at 134–35.

(14.) Id., at 159.

(15.) Id., at 201.

(16.) 32 J. Cont. Cong., at 180.

(17.) The Federalist, No. 15, at 156 (Alexander Hamilton).

(18.) See 1 Hamilton Practice, at 282–419.

(19.) See id., at 289–90.

(20.) Id., at 329 (Replication and Demurrer by John Lawrence, attorney for plaintiff).

(21.) Id., at 373 (Brief No. 6).

(22.) Id., at 377 (Brief No. 6).

(23.) See id., at 392, 397–99 (opinion of court).

(24.) Id., at 411.

(25.) Id.

(p.336) (26.) Id., at 412.

(27.) Id., at 414.

(28.) See Golove & Hulsebosch (2010), at 962 (“When beneficiaries of the new state laws used them against loyalists or Britons, most state courts enforced the statutes and refused to hold the peace treaty as a trump against contrary state laws.”).

(29.) 1 Hamilton Practice, at 380 (Brief No. 6).

(30.) Id., at 415 (opinion of court).

(31.) Id., at 377 (Brief No. 6).

(32.) Id., at 413 (opinion of court).

(33.) Id., at 378–80 (Brief No. 6).

(34.) Id., at 405–06 (opinion of court).

(35.) Id., at 417.

(36.) Id., at 418.

(37.) See 1783 treaty with Britain, arts. 4–6.

(38.) 31 J. Cont. Cong., at 797.

(39.) Id., at 862.

(40.) Id., at 868.

(41.) Id., at 869–70.

(42.) Id., at 870.

(43.) Id.

(44.) See 32 J. Cont. Cong., at 124–25.

(45.) See id., at 176–84.

(46.) Id., at 177.

(47.) Id., at 178–79.

(48.) Ramsey (2007), at 39.

(49.) 9 Madison Papers, at 348–49.

(50.) 1 Records, at 19.

(51.) The Federalist, No. 15, at 158 (Alexander Hamilton).

(52.) 1 Records, at 229 (June 13). See also 2 Records, at 27 (reproducing slightly different version considered on July 17).

(53.) See Rakove (1996), at 81–83, 171–74.

(54.) See 2 Records, at 27–28.

(55.) 1 Records, at 245.

(56.) William Paterson first proposed the New Jersey Plan on June 15. See 1 Records, at 243–45. The delegates approved a modified version of what became the Supremacy Clause on July 17. See 2 Records, at 27–29; Rakove (1996), at 81–82. The Committee of Detail met from July 27 to August 5. They replaced the phrase “any thing in the respective laws of the individual States to the contrary notwithstanding” with the phrase “any Thing in the Constitutions or Laws of the several States to the Contrary notwithstanding,” thereby clarifying that federal law supersedes state constitutions, as well as state statutes. See 2 Records, at 169; Rakove (1996), at 173. John Rutledge proposed an additional amendment on August 23. Earlier drafts made clear that federal statutes and treaties supersede conflicting state laws, but they did not mention the U.S. Constitution. Rutledge’s modified language stated: “This Constitution & the laws of the U.S… .,” thereby clarifying that the U.S. Constitution also supersedes conflicting state laws. See 2 Records, at 389; Rakove (1996), at 173–74.

(57.) 2 Records, at 27.

(58.) Id., at 28–29.

(59.) Rakove (1996), at 82.

(60.) Vázquez (1992), at 1106.

(61.) See U.S. CONST. art. III, sec. 2 (granting Supreme Court appellate jurisdiction over cases arising under treaties).

(62.) See id., art. III, sec. 1 (vesting federal judicial power “in such inferior Courts as the Congress may from time to time ordain and establish”); id., art. III, sec. 2 (extending federal judicial power to cases arising under treaties).

(63.) Id., art. I, sec. 10.

(64.) Id., art. II, sec. 2, cl. 2.

(65.) Id., art. I, sec. 3, cl. 1. The Seventeenth Amendment, which took effect in 1913, provides for direct, popular election of U.S. senators.

(66.) Id., art. II, sec. 3.

(67.) See Ramsey (2007), at 163–65; Swaine (2008), at 342–48.

(68.) U.S. CONST. art. I, sec. 8, cl. 18.

(69.) See Missouri v. Holland, 252 U.S. 416 (1920).

(70.) See Rosenkranz (2005) (contending that the Necessary and Proper Clause does not grant Congress power to enact legislation to implement treaties). In Bond v. United States, 134 S. Ct. 2077 (2014), Justices Scalia and Thomas endorsed Professor Rosenkranz’s theory. See id., at 2098–99 (Scalia, J., concurring).

(71.) U.S. CONST. art. III, sec. 2, cl. 1.

(72.) See Vázquez (1992), at 1101–10; see also 32 J. Cont. Cong., at 178–79 (quoting letter from Congress to the states, which affirmed the crucial role of state courts in enforcing treaties).

(73.) U.S. CONST. art. VI, cl. 2.

(74.) Nelson (2000), at 246.

(75.) Id., at 250.

(76.) Id., at 254–57. In his opinion for the court in Rutgers v. Waddington, Mayor Duane applied the presumption against implied repeals to justify his conclusion that the New York trespass statute was not intended to repeal applicable principles of the law of nations. Moreover, he noted explicitly that “the statute under our consideration, doth not contain even the common non obstante clause, tho’ it is so frequent in our statute book.” 1 Hamilton Practice, at 417 (opinion of court). Thus, in Duane’s view, the absence of a non obstante clause in the statute supported his decision to apply the presumption against implied repeals. Similarly, the affirmative decision to include a non obstante clause in the Supremacy Clause manifests the Framers’ determination that state courts should not apply the presumption against implied repeals to resolve conflicts between federal law and state law.