The Supremacy Clause, Original Meaning, and Modern Law

Michael D. Ramsey 

University of San Diego School of Law
July 6, 2013

Ohio State Law Journal, Vol. 74, 2013, Forthcoming 
Abstract:      
Under the U.S. Constitution, if federal interests conflict with state law, when must the latter give way? Although the Constitution’s text appears to resolve the question in Article VI’s supremacy clause, important recent scholarship argues that an approach anchored by the supremacy clause’s text cannot provide a practical account of modern law nor useful guidance for the future. More broadly, these critiques use the example of the supremacy clause to cast general doubt upon text-based originalism as a practical tool for resolving modern disputes. This article defends a textual approach to key modern issues of supremacy, including executive foreign affairs preemption, preemptive federal common law, and non-self-executing treaties. It finds that, while modern doctrine and modern conceptions of law differ somewhat from the outlook of the founding era, these differences are not insurmountable obstacles: a combination of text and stare decisis, as indicated by the Supreme Court’s approach to executive preemption in Medellin v. Texas, can supply workable solutions to modern supremacy debates. The article thus suggests that conventional academic concerns over the practicality of text-based originalism may be considerably overstated.

Number of Pages in PDF File: 68

Keywords: originalism, federalism, preemption, supremacy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290580