Connecticut Law Review
Supremacy Clause, constitutional law, John Marshall
Perhaps because the predominant strands of contemporary Supremacy Clause jurisprudence originate in two of the most venerable cases in the Court's history, the Court and academics alike have sidestepped some of their problematic pronouncements. In Part I, this Article questions the legacy of McCulloch v. Maryland and Gibbons v. Ogden, finding their Supremacy Clause principles unacceptably nationalistic and hence unfaithful to the balance of the Constitution. While their centralizing tendencies may have been understandable during the nation's infancy, their raison d'être has evaporated; the pendulum of state versus national regulatory power on matters other than individual liberties has swung too far. My objective is not to argue that all intergovernmental immunities are unjustified, or that federal preemption of state law is unauthorized. Rather, my focus throughout centers on whether these substantive claims are properly conceptualized as flowing from the Supremacy Clause. Part I also seeks to expose certain other analytic and textual difficulties that pervade the Court's Supremacy Clause cases. Part II examines the Constitutional Convention records to assist in formulating the Clause's proper function in the larger plan and in elaborating any limitations that deserve recognition. It concludes that the historical records support a narrow but important function for the Clause. Contrary to the Court's jurisprudence, the Clause's process-based regulative purpose is distorted by appending original claims to it. It cannot be properly read to confer additional national powers irrespective of the substantive provisions and limitations articulated in the balance of the Constitution.
Candice Hoke, Transcending Conventional Supremacy: A Reconstruction of the Supremacy Clause, 24 Connecticut Law Review 829 (1992)