An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.
The Law of the Land, Part 2
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America's Written Constitution
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The Law of the Land
What's the difference between a treaty and a statute? Which takes precedent? In this module Prof. Amar takes you through article 7 of the Constitution. Along the way you'll learn the difference between laws, treaties, resolutions, and statutes. Learn how each one comes into being and how the inherent democracy of each determines their place in the hierarchy.
Conoce a los instructores
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
Welcome back.
Well we've covered the preamble, how the Constitution was ordained and established.
Articles one, two, and three, the Legislative, Executive, and
Judicial Powers.
Article four Federalism, the relationship among the states horizontally, and
the related powers of Congress to sort of monitor states for
basic compliance with foundational principles of republic and government.
And the related power of Congress to regulate the territories in
such a way as to eventually make them into proper republican
states that will be admitted as new states on equal footing with the old.
We've talked about the article five, The Provision of the Constitution
setting forth how It's to be amended, and you might say, okay, well, what's left?
We've kinda covered everything.
Not quite.
Articles six and seven, both of which are quite short, remain to be discussed.
Article six is gonna be an elaboration of the supremacy of the constitution,
its status of supreme law of the land.
And article seven is gonna give us a little more specificity about
how this ordainment and establishment process is actually gonna work.
What do you mean, we the people of the United States do ordain and
establish this Constitution?
Who's the people?
How do we cash that out concretely?
How united are the states gonna be coming into this thing?
How's all that gonna work?
So first, article six.
Article six is a provision of the constitution conventionally
referred to just as a shorthand the Supremacy Clause of the Constitution.
It establishes that the Constitution is the supreme law of the land.
Not withstanding anything in any state constitution or
state law, it's supreme over federal statutes.
It's supreme over federal treaties.
It's supreme over all forms of state law, state constitution law,
state statutory law, judgement law.
And in fact, judges both of the federal government,
and of the states, are oath-bound to treat the Constitution
as supreme law of the land, as are other officials, state and federal.
The President, The Congress, cabinet officers,
state, executive, and legislative officers.
So this is the supreme law of the land that every official, really, state and
federal, is oath bound to recognize as such.
Now, a few things about that.
One, the Articles of Confederation said nothing of the sort.
They never described themselves as law, much less supreme law,
much less supreme law state judges have to respect even over state constitutions.
And in fact the articles didn't even say the things that congress did were law,
didn't describe the old congress as legislature.
Did use the words law and legislature but only referring to state laws and
state legislatures, and so state courts under the article's confederation really
treated the articles as basically no more than a treaty.
And the rule of treaties was that they could be superseded by later statutes,
and so state courts basically sometimes allowed state statutes to pretty,
that were passed after the articles to an effect deviate from the articles.
The Constitution says none of that anymore.
The Constitution is supreme law and it's supreme over all forms of state law and
state judges among others are oath bound to treat it as such.
And the point here is not just that the Constitution says this.
Anyone can just say it.
But today in America everyone respects that.
People actually don't go around saying, well and ordinary statute can repeal
the constitution or judges make stuff up openly.
Judges can openly proclaim that the real supreme law is what
they say rather than what the constitution says.
You might think judges have misconstrued the Constitution but they all purport
to be applying the written constitution as do state officials.
And so sociologically as well as formally the Constitution really is
the supreme law of our land that people take oaths to and
as a general proposition take quite seriously.
Both ordinary citizens and government officials.
Now the question is, why is it the supreme moment?
Okay, it says so.
Professor, and okay, everyone seems to accept that today, wasn't quite true in
the 1860s with the Civil War, but today they seem to accept this.
Well, why?
Why should it be the supreme law of the land?
Why should stuff that happened 200 years ago be more important than a statute
adopted tomorrow by the House and the Senate and signed by the President?
Isn't that statute adopted today, in the here and now?
Why should that be the supreme law of the land,
trumping something that a bunch of old white dead guys agreed to, 200 years ago?
And I think the answer is,
that the Constitution is the supreme law of the land because actually in some
very real ways it's got a deeper, democratic foundation.
It's higher because it's deeper.
It comes from the people themselves.
Remember at the time of the Constitution, people who in fact might not be eligible
to vote for state legislatures, might not be eligible to vote for
Congress, got to vote on the Constitution itself.
In a process that involved a whole year of ordinary people talking to each
other about how they and their posterity would be governed.
The sort that doesn't happen when ordinary laws are being passed,
the latest tariff bill, or tweak of the anti-trust laws.
Or budget or what have you.
So the Constitution is the supreme law of the land cuz it comes from the people.
It's higher law because has a more democratic foundation.
And amendments trump ordinary statutes, because it was much harder to adopt them.
They are much broader democratic consensus.
That's article five.
Two-thirds of the House have to agree on a constitutional amendment.
Two-thirds of the Senate and then three-quarters of the states.
So if it's hard to get an amendment adopted, two-thirds, two-thirds,
three-quarters, it should be equally hard to repeal that.
It should take another two-thirds, two-thirds, three-quarters to undo what
that special two-thirds, two-thirds, three-quarters have done.
So amendments should trump ordinary statutes,
cuz an ordinary statute just needs half of the House,
half of the Senate, and the President, and the states don't even weigh in.
So an ordinary statute doesn't have the same democratic pedigree
as the Constitution itself or its amendments.
Now, once you understand that, basically,
the Supremacy Clause has kind of a democratic gradient to it,
you can see why the Constitution trumps statute.
So only statutes, Congressional statutes passed in pursuance of,
consistent with the Constitution, are the supreme law,
you can understand why it should trump an ordinary treaty.
A treaty shouldn't be able to change the Constitution.
Two-thirds of the Senate with the President on their side shouldn't be able
to modify, but two-thirds of the House,
two-thirds of the Senate and three quarters of the states have agreed to.
So the Constitution should trump a statute, should trump a treaty,
should trump state constitution, cuz that's only involving one state,
rather than we the people of the United States as a whole.
Should trump a state statute a fortiori,
that's a Latin phrase meaning even more strongly.
If the U.S. Constitution says it's the supreme level and
not withstanding anything to the contrary in the state Constitution, well I.
It also goes on to say, notwithstanding anything to the contrary in a state
statute for the same basic reasons.
A state statute is lower than a state constitution.
So when some people sometimes ask me, well, didn't the Secessionists have
a leg to stand on in the 1860s, where does the Constitution prohibit secession?
I say, what part of the Supremacy Clause do you not understand?
I have kids sometimes I look at them and
I say, what part of no did you not understand here?
So the Supremacy Clause says the Constitution
is the supreme law of the land not withstanding anything that a state does.
So once you're in, you're in.
The Supremacy Clause makes that clear.
And it's gonna turn out article seven that you don't have to join the thing.
Article seven is going to explain that if you don't vote for
the constitution you're in New York you're not bound by it in New York.
Or if you don't vote for the constitution,
if Rhode Island doesn't say yes Rhode Island's not going to be bound by it.
But once Rhode Island says yes, once you're in, you're in.
And we'll talk a little bit more about that when we get to article seven.
One more feature of article six that I wanted to highlight for
you is, okay, the Constitution's the highest law cuz
it's most democratic along with its amendments.
Then come federal statutes that are in conformity with the Constitution,
cuz they're passed by a continental body, and
not quite as democratically, participatory as the amendment process,
as the ordainment and establishment process, but next best.
Later on are the supremacy clauses.
State constitutions and
state statutes are later, but it also talks about Federal Treaties.
And treaties are below the constitution and they're above state constitutions,
cuz treaties involve all of the United States.
But what's the relationship between Federal Treaties and Federal Statutes?
Now courts have basically said treaties and statutes are both
below US Constitution and above State Constitutions and state law.
But they're on the same level.
So, basically the courts have said the last-in-time rule applies.
If you've got two statues and they conflict, which statute do you go with?
The more recent one cuz they're on the same level, and
if they're on the same level, you go with the more recent one.
But if something's on a higher level, it trumps even if it's older.
The Constitution, even if we're talking about a 14th Amendment adopted 150 years
ago, it trumps a statue tomorrow that's inconsistent with it,
cuz it's on a higher level.
But as between one constitutional amendment and another constitutional
amendment, it's the later amendment that governs, so we repeal prohibition.
As between two statutes, cuz they're on the same level,
it's the later statute that trumps.
As between two treaties, it's the later treaty that prevails.
And so the argument, of course, I've adopted is, well, treaties and
statutes are pretty much on the same level, so statutes can repeal treaties and
treaties can repeal statutes, whichever's more recent.
But I think if you look carefully at the Constitution,
it says the Constitution, statutes, and treaties, in that order.
Statutes are higher than treaties, and they're higher than treaties.
They're mentioned first because they're more democratically accountable,
cuz you have the House of Representatives involved.
And so although this is not what courts have said,
it closely tracks what courts in general have in fact done.
Which is to understand that there are certain things that actually
treaties can't do.
Here's some things that you shouldn't be allowed to do by a mere treaty.
You shouldn't be allowed to raise an army by a mere treaty.
Only the House of Representatives needs to be, I think, involved in that.
And that's why the army lapses every two years, and that's tied to elections for
the House of Representatives every two years.
An ordinary treaty shouldn't be allowed to create a new federal crime.
Only Congress, the House of Representatives, to create a new crime or
to raise an internal tax or to declare a war.
There are certain things structurally that you need the House of
Representatives to be involved in.
And I think the same is true if you're gonna repeal a statute,
a statue that was adopted with the House of Representatives participation,
you shouldn't be allowed to do that by a mere treaty.
A treaty can say, we promise we will repeal some preexisting statute, but
then Congress needs to repeal that statute and
the House of Representatives needs to get involved.
In technical law talk certain sorts of treaties cannot be self-executing,
they require subsequent congressional legislation.
So for example, when Thomas Jefferson tells Napoleon,
we're gonna buy Louisiana from you.
And the Senate says, yes, we are, great.
But who is gonna pay for that?
You need the House of Representatives to be involved in a bill that spends a dime,
or raises an internal tax, or creates a new Federal crime,
or raises an army, or declares a war.
And I think symmetrically, like this was similar structure logic, the house
of representatives needs to be involved if a Federal statute is to be repealed.
So treaties should trump state statutes and
state constitutions cuz treaties represent the United States, but
treaties aren't really at the same level as statutes.
So I say the Constitution, laws, and treaties, in that order for
democratic reasons.
And by the way, that's the order in the supremacy clause itself,
if you look at it carefully.
Okay, so the supreme law of the land, and it's the law of the land, the entirety
of the United States, including its territories, including any state.
Once a state is in, it's in, it's part of the land.
If you don't like it, you're always free to leave, but
you don't get to take the land with you, the water with you.
All Americans basically fought to defend Charleston Harbor in the War of 1812,
until the people in Charleston don't unilaterally ever get to turn
those guns around and point them into the bellies of their fellow Americans.
All Americans Fought for New Orleans in the War of 1812,
a kind of the Revolutionary War part two.
The entire continent basically helps defend that for
good geo-strategic and national security reasons.
The people in New Orleans should be allowed, just unilaterally,
to turn those guns the other way.
Andy Jackson understood that.
He stared down those South Carolinians when he was president,
he was born In South Carolina, but he stared them down.
He understands the importance of New Orleans.
He's the victor of the Battle of New Orleans.
And so for very sound geo-strategic reasons the Constitution says,
this is the supreme law of the land,
not withstanding anything in any state constitution, any state law.
A state on its own can't take itself out of the Union,
the supremacy clause is pretty emphatic about that.
So listen up, Rick Perry.
And as we've talked about in our first lectures,
people adopting the Constitution in the preamble knew that.
No Federalist ever said, gee, why don't you vote for the thing,
and if you don't like it, you can always leave.
Instead the Federalists insist that they're creating a more perfect union for
geo-strategic regions, and that takes us to Article Seven.
Because Article Seven is gonna cash out the Preamble.
The Preamble talks about we the people of the United States ordaining and
establishing this Constitution.
Article Seven talks about how this Constitution, same words,
is to be established.
Same, same word as the Preamble.
Preamble is the first sentence of the Constitution.
Article Seven is the last sentence of the original Constitution.
So one sentence to begin, one sentence to end.
They're kind of matching bookends.
Sort of, if it's a building, sort of the front Porch and the rear portico,
they perfectly match, then centers the piece and article seven tells us how,
we the people of the United States, are actually gonna do this.
So first, what do you mean people?
Article seven says here's what we mean by people.
Special conventions are gonna be the ones deciding whether to ratify or not.
Not ordinary legislatures but special conventions.
Doesn't spell out all the rules about how these conventions are to be selected but
the idea is they should really be representative of the people in a very
special way.
And then, in the different states, rules emerge to sort of implement that idea that
these are supposed to be conventions of the people.
And you might say, well why not just have a referendum?
And I think the simplest answer is,
cuz the referendum really hadn't been invented yet.
The Swiss hadn't done it yet on a kind of national level.
And so the idea of voting for individuals for
representatives was well-established, but
not quite the idea of voting on ordinary laws, California doesn't exist yet.
And then we don't have the California style, the Western style referendum and
that's gonna be a later part of our story.
And part of the reason it doesn't exist is cuz the idea is when you're voting for
laws, you actually have to discuss them and deliberate among them.
You can't just vote, you have to talk first,
and how is that gonna happen on a state level?
Maybe it could happen in New England cuz you have town meeting.
And in New England, people go actually in individual towns and
they talk about something once, there's some proposal and then they meet again.
And the second time and the third time and only after everyone has talked about it,
do they vote on the proposal?
But the south doesn't have actually townships that way.
It doesn't have a structure for people to meet face to face and
talk amongst themselves and say, well what's this provision of article four
mean, and what do you mean citizen and why isn't there a bill of rights?
You couldn't have easily done that, actually, in Virginia, town by town,
because it doesn't have a township structure.
So you had special ratifying conventions, were as democratic as
you were gonna get in 1787, as democratic as was reasonably possible.
It does mean that there was some malapportionment in some of the states,
the Federalists didn't always benefit from the malapportionment.
I think it may have helped them in South Carolina,
it might have hurt them in Massachusetts, but in any event,
they didn't basically make all the ground rules that pre-existed them.
They have to kind of work with the legal structures that they inherited, and
the legal structures that they inherited.
Basically, they tried to tweak by saying, let's have special conventions elected in
the most democratic way imaginable given the rules of our society.
And I think the ratification really did cash out that idea of the people.
So the phrase, the people,
in the preamble is echoed in article seven by the phrase conventions.
These special bodies, specially selected, so
not just the ordinary lawmakers but people with a special mandate.
You vote for a legislature and you think it's gonna be about how
to put the surplus in a lockbox and it turns out that the issues
that really confront that Congress are gonna be how to deal with 9/11.
So when legislature, you vote for them for two years, and
they're gonna just decide all sorts of stuff that may come up.
These conventions, a special election on one issue that you know about.
You've been given the constitution as the voter, you can read it and then vote for
people who promise they're gonna be basically supportive in this convention or
they're gonna be skeptical.
But you're gonna want them to go and talk and listen, and
then vote only after they've heard all the arguments all the way around because
you can't do that yourself.
So you vote for people that you think are gonna represent your instincts on this
proposal that you have in front of you before you vote for them.
So, that's the idea of conventions of the people, of the founding.
But article seven does one other really interesting thing.
It says the constitution will go into effect among whatever nine states say yes.
13 don't have to say yes.
What do you mean?
We talk about what do you mean by the people now what do you mean by
the United Stated?
Article seven says United States basically means any nine.
Nine is required.
If less than nine say yes, we're stuck with the Articles of Confederation.
But if nine say yes, the constitution will go into affect among the states so
ratified, okay?
So, why that rule?
Because the states are sovereign.
Because if Rhode Island says no,
it doesn't matter if the other 12 states have said yes.
Rhode Island gets to decide for itself, it's sovereign,
under the articles confederation it's retained sovereignty, so
Rhode Island will only be in if she says yes.
No state can bind any other.
But how is it that only nine are required?
The Articles of Confederation professor said 13.
Yes it did.
But it also said everyone is gonna abide by the Articles of Confederation.
And the states aren't abiding by the Articles of Confederation.
Rhode Island, for example, has promised to pay into federal coffers and
do other other things and it's not doing that.
All the states promised to basically follow the articles and they're not, and
so precisely because each state is sovereign.
If the treaty, which is all the Articles the Confederation really is,
isn't really being implemented properly, the states can basically disregard it and
supersede it under the last-in-time rule.
They agreed to this treaty but it's not working and so
they can choose a different system.
That's the legal argument for why they are allowed to disregard the articles.
13 is unworkable.
Rhode Island's never gonna say yes.
So either we're gonna go down with this ship,
[LAUGH] or instead, we're gonna come up with a plan.
At least nine of us, if we can agree amongst ourselves,
we're gonna create a new more perfect union.
And no one's bound absent their consent, but once you're in, you're in.
And this new thing is not gonna be a mere treaty.
It's not gonna be Articles of Confederation, a league.
It's not gonna be a thing with each state is sovereign,
we're gonna create a perfect union, indivisible, on the model of Scotland and
England, once you're in, you're in.
You don't have to join and that's what this picture's all about.
George Washington is elected president and only 11 states are in this new union.
North Carolina hasn't said yes yet.
Rhode Island hasn't said yes yet.
But 11 states have said yes, and they're gonna go into this thing,
this new United States on their own, no states bound absent its consent.
But once you're in, you're in.
And article five is gonna say, gee, for future amendments,
even if your state votes against an amendment,
if three-quarters of the other states vote yes, you're bound by that.
So once you're in, you're in.
Article five is different than article seven.
The 11 don't bind the two.
The nine wouldn't bind the four.
If nine said yes and four said no.
But Article 5 is gonna say once you do vote for
the constitution you are bound by it.
Now, constitution, we've come to the end of the original constitution.
This rear portico of the original document which is sort of balancing the preamble,
which is really supposed to be end of the document,
it turns out it's not the end of the document.
Because we've added a bunch of amendments to the thing.
And that's what we're gonna start talking about now.
The amendments to the constitution.
So the amendments get tacked on to the end of the constitution,
so what began as this kind of rear porch, rear portico of the original constitution,
has now become kind of a passageway to the amendments.
So that's what we're gonna talk about for the rest of this segment of the course.
So stay tuned.
[MUSIC]
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