The US Constitution
The Constitution’s sixth article seems at first glance to be something of a hodge-podge: three paragraphs placed together that appear to have little to do with another. On closer examination, the three paragraphs do at least have in common the fact that they do not seem to fit comfortably in any of the preceding articles. Rather than focusing on one of the branches of government, interstate relations or the amendment process, they relate more to the federal government as a whole and to the national context in which the Constitution would operate.
The first paragraph makes it clear that the debts and other obligations that had earlier been undertaken by the United States would be assumed by the new federal government that would be formed under the Constitution. This was doubtless important reassurance to many at the time and contributed to the surprisingly smooth governmental transition that took place after ratification. It also helped to lay the foundation for Alexander Hamilton’s efforts to early on establish the public credit of the new government. Is this part of the article then merely of historical interest as an aid in understanding the early republic? Actually the first paragraph has a deeper significance, for it establishes the essential continuity of the federal government with its predecessors: the government established by the Articles of Confederation (ratified in 1781) and before that the Second Continental Congress that in 1776 had declared American independence. The Constitution thus does not create the American Union, rather it continues it—right down to our time.
The second paragraph of Article VI is often referred to as the Supremacy Clause. In many ways it helps to knit together the first four articles by providing a definition of legal supremacy in the federal system. It defines the Constitution itself, federal law made pursuant to it, and treaties to which the United States is a party, as the supreme law of the land, taking precedence over state laws and constitutions in cases of conflict. Moreover, it requires that state judges interpret the law accordingly. (At the time, of course, the federal judiciary had yet to be created so there was the very real prospect that state courts would be interpreting federal law.) The Supremacy Clause does not say, however, what might happen if the three components of the law of the land should come into conflict with one another. The courts have resolved this question by ruling that the Constitution itself takes precedence over federal law and treaties. In the rare instances when the latter two have come into conflict, the courts have generally sided with whichever was the more recent.
Note, too, that the clause does not regard the scope of federal law as unlimited. It is only federal law made “in pursuance” of the Constitution that is included. By implication a federal statute not grounded in some portion of the Constitution is not part of the law of the land. Who decides when this is the case has been a lively topic of debate in American history, but it has generally been the Supreme Court. Thus some see Article VI as an implicit source of the concept of judicial review.
The article’s final paragraph further connects the first four articles by requiring members of Congress, federal executive and judicial officials, and state officials, legislators, and judges to take oaths or affirmations to support the Constitution. (The alternative of an affirmation was included in deference to religious groups, notably the Quakers, whose teachings prohibited members swearing oaths).
The third paragraph also bars religious tests for federal office-holding. (This clause is the only part of the original Constitution that overtly mentions religion.) Such tests were common at the time at the state level, as most states limited office-holding to Christians or, more narrowly, to Protestants. The provision was probably included more to establish a uniform national standard that favored no one religious group than to strengthen the separation of church and state. Over time, though, the ban on religious tests for federal office helped to influence the states to eliminate such provisions from their own constitutions over the course of the nineteenth century.
William C. Lowe, PhD
Dean, College of Liberal Arts
The University of Arizona Global Campus
published September 2012