The Supremacy Clause — “This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made or to be made under the authority of the United States shall be the supreme law of the land; and the judges of every state shall be bound thereby, notwithstanding anything in the Constitution or laws of any state to the contrary” – is also the product of the drafters’ desire to bring state governments to heel as much as possible.

It is not for nothing that opponents of the Constitution have called its treatment of the states a flagrant attack on the liberty of the American people. “For anti-federalists, the Constitution represented a repudiation of everything Americans had fought for,” writes historian Gordon Wood in “The Making of the American Republic, 1776-1787.” “In the context of conventional eighteenth-century political thought, the Constitution evidently represented a reinforcement of ‘energy‘to the detriment of’freedom‘, a striking reinforcement of the power of those who govern at the expense of the participation of the people in government.

A rejoinder here is simply the 10th Amendment to the Constitution, which says that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people, respectively.” This, for many conservatives, is an assertion of states’ rights, which proves the drafters’ intent to protect the authority of state governments.

But for Madison, who drafted the amendment, it was a “superfluous” recapitulation of the principle that the federal government had enumerated, not inherent, powers. He saw “no harm in making such a statement”, if it could appease worried opponents, as historian Pauline Maier wrote in “Ratification: the people debate the Constitution, 1787-1788”, “that the Constitution did not provide States with sufficient protection”. to ensure their sustainability.

And to make sure it wouldn’t upset the balance of powers set out in the Constitution, Madison rejected input from states ratifying the conventions, which wanted the amendment to specify the “expressly delegated” powers of the United States. . In the absence of this “expressly”, the new national government could, and should, take a broad view of its powers over the country and the states.

Why is this important? What, if anything, does this have to do with the present? Well, for starters, it’s a useful corrective in light of emerging theories like the “independent state legislature” doctrine I mentioned earlier, which is based on a state-centric view of the Constitution that collapses on superficial contact with the story in question.

Beyond the issue of biased legal theories lies the unresolved issue of states. Not only are we living at a time when several states are moving quickly to restrict their residents’ right to obtain an abortion or to live as a sexual minority, but we are also living at a time when the Supreme Court is moving to restrict the ability of Congress to intervene on suffrage issues, in addition to steps the Court has already taken to limit Congress’s ability to bind and coerce states on certain matters of national policy.