Politics of Accommodation: the Origin of the Supremacy Clause
| Author | Robert H. Birkby |
| DOI | 10.1177/106591296601900111 |
| Published date | 01 March 1966 |
| Date | 01 March 1966 |
| Subject Matter | Articles |
123
POLITICS
OF
ACCOMMODATION:
THE
ORIGIN
OF
THE
SUPREMACY
CLAUSE
ROBERT
H.
BIRKBY
Vanderbilt
University
BSERVERS
are
fond
of
asserting
that
American
politics
is
pragmatic,
non-
~
ideological,
based
on
compromise,
and
oriented
toward
obtaining
consensus
on
both
ends
and
means.
Nowhere
is
this
better
illustrated
than
in
the
Con-
stitutional
Convention
of
1787.
The
Convention’s
product,
almost
from
the
day
of
ratification,
has
been
called
&dquo;a
bundle
of
compromises,&dquo;
but
it
has
only
been
recently
that
any one
has
suggested
that
the
&dquo;linch-pin,&dquo;
as
the
late
Edward
S.
Corwin
called
Article
VI,
Section
2,1
was
itself
a
product
of
negotiation.2
Yet
it
seems
fairly
clear
that
the
Supremacy
Clause
was
a
middle
ground
between
a
veto
by
the
national
legis-
lature
over
state
statutes,
on
the
one
hand,
and
construction
of
the
Constitution
by
state
courts
on
the
other.
One
of
the
major
reasons
for
calling
the
Philadelphia
Convention
was
state
refusal
to
comply
with
requisitions
made
by
the
central
government
and
state
frus-
tration
of
national
policy.
&dquo;The
fundamental
defect,&dquo;
Alexander
Hamilton had
said,
&dquo;is
a
want
of
power
in
Congress.&dquo;
3 Once
Congress
sent
out
the
call
for
a
general
convention,
James
Madison
started
to
lay
the
groundwork
for
the
creation
of
a
system
that
would
cure
these
evils.
&dquo;I
think
myself,&dquo;
he
wrote
Thomas
Jefferson,
&dquo;that
it
will
be
expedient ...
over
and
above
the
positive
power
of
regulating
trade
and
sundry
other
matters
in
which
uniformity
is
proper,
to
arm
the
federal
head
with
a
negative
in
all
cases
whatsoever
on
the
local
Legislatures.
Without
this
defensive
power,
experience
and
reflection
have
satisfied
me
that,
however
ample
the
federal
powers
may
be
made,
or
however
clearly
their
boundaries
may
be
delineated
on
paper,
they
will
be
easily
and
continually
baffied
by
the
Legislative
sovereignties
of
the
States.&dquo;
But
Jefferson
was
in
Paris;
he
would
not
be
in
Philadelphia
and,
given
1
Edward
S.
Corwin,
The
Constitution
and
What
It
Means
Today
(New
York:
Atheneum
Press,
1963),
p.
178.
2
Alpheus
Thomas
Mason,
The
Supreme
Court:
Palladium
of
Freedom
(Ann
Arbor:
U.
of
Michigan
Press,
1962),
p.
19.
3
Hamilton
to
James
Duane,
September
3,
1780.
H.
C.
Lodge
(ed.),
The
Works
of
Alexander
Hamilton
(New
York:
Putnam,
1904),
I,
213.
’ Madison
to
Thomas
Jefferson,
March
18, 1787.
G.
Hunt
(ed.),
The
Writings
of
James
Madi-
son
(New
York:
Putnam,
1904),
II,
326.
Cited
hereafter
as
Hunt.
Jefferson
promptly
replied:
"The
negative
proposed
to
be
given
them
[Congress]
on
all
the
acts
of
the
several
legislatures
is
now
for
the
first
time
suggested
to
my
mind.
Prime
facie
I
do
not
like
it.
It
fails
in
an
essential
character,
that
the
hole
and
the
patch
should
be
commensurate.
But
this
proposes
to
mend
a
small
hole
by
covering
the
whole
garment.
Not
more
than
1
out
of
100
state
acts
concern
the
confederacy.
This
proposition
then,
in
order
to
give
them
1
degree
of
power
which
they
ought
to
have,
gives
them
99
more
which
they
ought
not
to
have,
upon
a
presumption
that
they
will
not
exercise
the
99....
Would
not
an
appeal
from
the
state
judicatures
to
a
federal
court,
in
all
cases
where
the
act
of
Confederation
controlled
the
question,
be
as
effectual
a
remedy,
and
exactly
commensurate
to
the
defect.
...
It
will
be
said
that
this
court
will
encroach
on
the
jurisdiction
of
the
state
courts.
It
may.
But
there
will
be
a
power,
to
wit
Congress,
to
watch
and
restrain
them.
But
place
the
same
authority
in
Congress
itself,
and
there
will
be
no
power
above
them
to
perform
the
same
office.
They
will
restrain
within
due
bounds
a
jurisdiction
exercised
by
others
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