Federal Supremacy And State Sovereignty: The Supreme Court's Early Jurisprudence

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trice

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From Federal Supremacy And State Sovereignty: The Supreme Court's Early Jurisprudence by Richard Lieb in the ABI Law Review. (St. John's University)
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During the Constitutional convention, the States maintained that they should retain the sovereignty they enjoyed under the Articles of Confederation as fully independent States operating without federal controls. Nevertheless, a large measure of the States' sovereignty was ceded under the Constitution to the federal government by virtue of the Supremacy Clause in Article VI, which declared that all laws of the United States "shall be the supreme Law of the Land. "The Constitution, however, did not explicitly set forth the extent to which the States would continue to enjoy sovereignty. From the outset, the States had trouble accepting the notion that the source of the Constitution's authority was derived from the people at the state ratifying conventions, rather than the States themselves, which underpinned the notion of federal supremacy. All of the States argued then as they argue now, that they are sovereign states and immune from the enforcement of federal law in the federal courts.

The States did not prevail in the first cases to come before the Supreme Court that arose from their conflict with the Federalists on issues over federal supremacy and states' rights and sovereignty. In the early days of the Court––its golden age under Chief Justice John Marshall––its opinions molded the shape of our federal system and firmly established the principle that federal power prevails over state sovereignty. Indeed, its 1819 decision in McCulloch v. Maryland, upholding a Congressional act creating a national bank, and its 1824 decision in Gibbons v. Ogden, overturning a State's statute regulating steamboat traffic, are pillars of constitutional nationalism that established the superiority of Congress' powers under Article I of the Constitution above states' rights and sovereignty. But almost 200 years later, the Court abruptly reversed course in 1996 by its five to four decision in Seminole Tribe. Under the Court's current jurisprudence, federal supremacy is subordinated to states' rights and sovereignty.

Revisiting the Court's early decisions reflecting its original federalism jurisprudence may help to point the way to an expansive application of its "ancillary power" theory in the Court's decision last year in Central Virginia Community College v. Katz, which rejected a State's assertion of sovereign immunity in a bankruptcy court suit to void and recover a preferential transfer. The question that remains to be decided after Katz, is whether the States will be amenable to suits in bankruptcy courts on any claim arising under a provision of the Bankruptcy Code or necessary to implement one of its provisions.
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Full article at http://www.stjohns.edu/media/3/e72d891599304c23a5f6b3e66bea3c4a.pdf

Tim
 
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CharacterGroove

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From Federal Supremacy And State Sovereignty: The Supreme Court's Early Jurisprudence by Richard Lieb in the ABI Law Review. (St. John's University)
=====
During the Constitutional convention, the States maintained that they should retain the sovereignty they enjoyed under the Articles of Confederation as fully independent States operating without federal controls. Nevertheless, a large measure of the States' sovereignty was ceded under the Constitution to the federal government by virtue of the Supremacy Clause in Article VI, which declared that all laws of the United States "shall be the supreme Law of the Land. "The Constitution, however, did not explicitly set forth the extent to which the States would continue to enjoy sovereignty. From the outset, the States had trouble accepting the notion that the source of the Constitution's authority was derived from the people at the state ratifying conventions, rather than the States themselves, which underpinned the notion of federal supremacy. All of the States argued then as they argue now, that they are sovereign states and immune from the enforcement of federal law in the federal courts.

The States did not prevail in the first cases to come before the Supreme Court that arose from their conflict with the Federalists on issues over federal supremacy and states' rights and sovereignty. In the early days of the Court––its golden age under Chief Justice John Marshall––its opinions molded the shape of our federal system and firmly established the principle that federal power prevails over state sovereignty. Indeed, its 1819 decision in McCulloch v. Maryland, upholding a Congressional act creating a national bank, and its 1824 decision in Gibbons v. Ogden, overturning a State's statute regulating steamboat traffic, are pillars of constitutional nationalism that established the superiority of Congress' powers under Article I of the Constitution above states' rights and sovereignty. But almost 200 years later, the Court abruptly reversed course in 1996 by its five to four decision in Seminole Tribe. Under the Court's current jurisprudence, federal supremacy is subordinated to states' rights and sovereignty.

Revisiting the Court's early decisions reflecting its original federalism jurisprudence may help to point the way to an expansive application of its "ancillary power" theory in the Court's decision last year in Central Virginia Community College v. Katz, which rejected a State's assertion of sovereign immunity in a bankruptcy court suit to void and recover a preferential transfer. The question that remains to be decided after Katz, is whether the States will be amenable to suits in bankruptcy courts on any claim arising under a provision of the Bankruptcy Code or necessary to implement one of its provisions.
=====

Full article at http://www.stjohns.edu/media/3/e72d891599304c23a5f6b3e66bea3c4a.pdf

Tim
I have a quibble with Professor Lieb's choice of phrasing, but it's an important one. The Constitution does not declare that "all laws of the United States 'shall be the supreme Law of the Land.'" It declares that "this Constitution, and all Laws of the United States which shall be made pursuant thereof ... shall be the supreme law of the land." Art. VI, Cl. 2. (emphasis added).

The distinction is important for framing the issue of federal vs. state power. If you're looking to see who prevails when a particular law is passed, or competing laws are passed, don't read the Supremacy Clause, read "this Constitution."

Thanks for sharing the article, Tim. I wish I had a stomach for bankruptcy law so I could do more than skim it.
 
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