Why the Constitution Trumps other Laws

In the prior sections, we discussed how the Constitution replaced the Articles of Confederation to create a stronger national government. The Constitution organizes the federal government by:

  • dividing power between the national government and state governments (federalism);
  • establishing the three branches of the federal government and dividing power among the three branches (separation of powers); and
  • providing each branch of government with powers to limit the powers of the other branches (checks and balances).

The Constitution also establishes itself as the Supreme Law of the Land. Specifically, Article VI, paragraph 2 of the Constitution (the Supremacy Clause) provides:

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, anything in the constitution or laws of any state to the contrary notwithstanding.

The Supremacy Clause establishes the principle of preemption.  Preemption provides that if there is a conflict between the Constitution and any other law, the Constitution takes precedence.   The Constitution, as well any federal law, will preempt a state law. For example, if state law prohibits certain people from voting but federal law guarantees the same people the right to vote, the federal law will preempt the state’s voting law.

When a court conducts judicial review the court determines whether a law or government activity violates the Constitution. The Constitution will trump the law or activity because no law is above the Constitution. This principle is important to understanding how the Constitution protects important freedoms.