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Suppose a state Constitution explicitly states that residents of the state have a specific right (obviously this comes from the abortion debate, but I’m not necessarily focusing on that particular issue).

Then suppose a federal law was passed banning that action nationwide. Would this override the state Constitution? (Any prosecution would presumably have to be done at the federal level, but that doesn’t really matter because the people in the state have still lost the right.)

If it does override it, doesn’t that make rights “guaranteed” by a state Constitution really flimsy? They can’t be taken away within the state, but the feds can still wipe them out without any changes to the state or federal constitution.

SegNerd
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    If it does override it, doesn’t that make rights “guaranteed” by a state Constitution really flimsy? Consider the opposite: If a state's law (even on the constitutional level, as amending a state constitution could still be easier than changing federal law) would override the federal law, then the federal law would be equally flimsy. – Chieron Nov 22 '23 at 08:39
  • @SegNerd If federal laws couldn't overwrite a state constitution, then what would happen if a new constitutional amendment is passed at the state level that disagrees with federal law? States would have the ability to bypass or ignore federal law at will. – Dakeyras Nov 22 '23 at 11:21
  • To some degree, isn't this already the case with some drugs, like marijuana, which are legalized within the states, but not legal on a federal level? Admittedly, this largely results more in difficulty for dispensaries in getting bank accounts, and a handful of cases of police pulling over and seizing armored car contents under the pretense that the money is being used to fund federally illegal drugs. – SCD Nov 22 '23 at 17:56
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    It should be noted that the only rights “guaranteed” by a state Constitution that are really flimsy are those which affect powers delegated to the federal government by the Constitution. All other rights are actually guaranteed by state Constitution because Congress can't make laws about them. Nowadays, abortion related rights may be in this group. – Pere Nov 22 '23 at 21:57
  • The inability of states to override federal law is the main or entire reason they make trigger laws that depend on federal law. – NotThatGuy Nov 23 '23 at 11:36
  • You may find my previous question on politics.SE be of interest: https://politics.stackexchange.com/questions/64106/are-there-federal-systems-where-federal-laws-do-not-have-primacy – xngtng Nov 23 '23 at 13:07
  • This happened quite frequently up through the Civil Rights era. – RonJohn Nov 24 '23 at 05:12

4 Answers4

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Could a federal law override a state constitution?

Yes. If a federal law genuinely conflicts with a state constitution (i.e. it is not possible to follow both at the same time), then the federal law overrides the state constitution under the Supremacy Clause of the U.S. Constitution.

If it does override it, doesn’t that make rights “guaranteed” by a state Constitution really flimsy?

Sort of. But usually, passing a law overriding a state constitution requires bipartisan support, so it isn't that easy to do in the federal legislative process.

barbecue
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ohwilleke
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    “passing a law overriding a state constitution requires bipartisan support” — citation needed, taking into account current politics, not just historical practice. – Reid Nov 22 '23 at 16:00
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    @Reid Even when one party has a federal trifecta the filibuster rules in the U.S. Senate have required bipartisan support for ordinary legislation for the last century and a half at least. – ohwilleke Nov 22 '23 at 16:36
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    @ohwilleke a century and a half?? Democrats had a trifecta and and supermajority in the Senate in 2009, only 14 years ago. They could have overridden any Republican filibuster if they chose, but in reality their own internal squabbles prevented them doing much.

    It's also worth noting that the filibuster itself could theoretically be removed or amended with a simple majority in the Senate, if they so choose, and votes on filibuster-related changes have not always followed party lines.

     – Phueal Nov 22 '23 at 20:30
  • @Phueal The filibuster has been around a century and a half. Usually, there haven't been supermajorities. There have been windows of time when that was't the case, but only briefly and rarely. And the Democrats did not have the relevant 60% majority in the U.S. Senate in 2009. – ohwilleke Nov 22 '23 at 22:00
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    Generous interpretations of the Interstate Commerce Clause notwithstanding, I would suspect the Tenth Amendment would be a more robust barrier to overriding rights granted by a state constitution than the need for bipartisan support. – Sneftel Nov 23 '23 at 11:31
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    It's probably worth mentioning that the US (federal) Congress cannot pass laws on anything and everything: some rights are reserved to the States. While there are ways around that (generous interpretations of the Interstate Commerce Clause, and in many cases "if you don't do what we tell you we won't give you any money"), they can't do just anything they want and/or it can later be rejected by the US Supreme Court. – jcaron Nov 23 '23 at 15:22
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    @ohwilleke The Democrats did indeed have the 60% majority in 2009 from July 7 (when Al Franken was seated) to August 25 (when Ted Kennedy died,) then again from Sept 25 (when Kennedy's interim successor was appointed) until Feb 4, 2010 (when Republican Scott Brown was seated after winning the special election for Kennedy's permanent replacement.) (Technically, it was 58-40-2, but both "independents" were/are Democrats in all but name and caucus with them, so, for all practical purposes, it was 60-40.) – reirab Nov 23 '23 at 16:53
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    @Sneftel The 10th Amendment is basically meaningless in practice. It isn't a barrier to anything. – ohwilleke Nov 23 '23 at 19:36
  • @ohwilleke That is not true... just because the law is rarely cited, does not mean that there are not federal laws that were successfully challenged by state Attorneys General on the grounds that the Federal Government does not have the constitutional authority to make such laws. When such a challenge is successful, the state would retain existing, unless it's ruled that it is a right of the people, another challenge to the individual state law would need to be made. – hszmv Nov 24 '23 at 16:10
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Yes.

For example, after Denver and Boulder expanded their civil-rights laws to protect LGBT people from discrimination, Colorado voters approved a constitutional amendment that protected all citizens of the state from enforcement of those laws, giving them a constitutional right to discriminate against people because they are gay.

The U.S. Supreme Court struck that amendment down, saying it violated the Equal Protection Clause of the Fourteenth Amendment:

We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

Romer v. Evans, 517 U.S. 620, 635 (1996).

bdb484
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    That's the federal constitution overriding state constitution, which is somewhat different - the question is about a federal law being passed to override the state constitution. – psmears Nov 22 '23 at 10:35
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    There's a distinction but no difference. Whether it's a constitutional amendment or a congressional enactment or an agency regulation, the answer will always be that the Supremacy Clause requires any contrary state law to yield, regardless of whether it's a state statute or state constitutional amendment. – bdb484 Nov 22 '23 at 14:13
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    I don't disagree, but your answer would be better if it stated that explicitly, and even better if it gave an example where it was federal legislation overriding the state constitution rather than the federal constitution doing so – psmears Nov 22 '23 at 14:42
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    A federal law can’t override the federal constitution, what suggests a federal law ca override a state constitution? – Joe W Nov 22 '23 at 15:33
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    @JoeW The Constitution does. – barbecue Nov 22 '23 at 17:54
  • @barbecue please provide evidence that the constitution says federal laws override state constitutions. – Joe W Nov 22 '23 at 18:32
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    @JoeW Article 6 of the US Constitution is very clear. If that's not good enough for you, then nothing will be. – barbecue Nov 22 '23 at 19:25
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    @barbecue i disagree that it is clear but it should be explained in an answer why you think that it is clear. – Joe W Nov 22 '23 at 19:48
  • To me it's just very obvious, but my opinion of how obvious it is isn't an answer to the original question. Maybe @ohwilleke's answer can be updated with some links explaining why this is a well-established precedent. – barbecue Nov 22 '23 at 20:15
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    @JoeW It literally says that the federal constitution, federal laws, and (federal) treaties are the supreme law of the land, and every court, state law, and state constitution is subordinate to and bound by them. It is hard to imagine anything, anywhere, ever, being more clear and unambiguous. SCOTUS has gone through mutations on exactly what constitutes a conflict warranting an imposition of the supremacy clause and what resolves it best, but that it does exactly what it says on the tin has never been in question. – zibadawa timmy Nov 22 '23 at 23:52
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    @zibadawatimmy All I am saying is that needs to be shown instead of just stating that and using the federal constitution as an example. – Joe W Nov 22 '23 at 23:54
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    @JoeW You literally said "i disagree that it is clear" in response to "article 6...is very clear", so that is provably not all that you're saying. It's one part of what you're saying, and it's the reasonable part. But all that you're saying? Not at all. – zibadawa timmy Nov 23 '23 at 00:01
  • @zibadawatimmy Yes, I disagree that it is clear enough to just say it does and not show why. The example in the answer is related to the federal constitution and the question is asking about a federal law which cannot override the federal constitution so it could be suggested that it also applies to state constitutions. – Joe W Nov 23 '23 at 00:10
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    The text of Article VI reads in relevant part, “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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What, @JoeW, do you read that to mean if not that (among other things) Federal enactments trump state constitutions? – Paul Tanenbaum Nov 23 '23 at 03:43
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    @PaulTanenbaum And I am saying that should be included as part of an answer, not just assuming everyone understands it. If it was that simple to understand there wouldn't have been a need for a question in the first place. – Joe W Nov 23 '23 at 15:14
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    This answer reaches the correct conclusion, but the provided example is not what the question is asking (it's about the federal Constitution, not a normal federal law) and the explanation of the Supremacy Clause really should be in the answer instead of in a comment. – reirab Nov 23 '23 at 16:59
  • @PaulTanenbaum: Article VI is reasonably clear - but it's not actually mentioned anywhere in the answer; adding a reference to it would improve the answer greatly. – psmears Nov 24 '23 at 16:26
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Yes, federal laws take precedence over state constitutional provisions. That is, any provision of a state constitution that conflicts with federal law is unenforceable. This is explicitly stated in the Supremacy Clause of the U.S. Constitution:

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.

Article 6, paragraph 2 of the Constitution of the United States

If it does override it, doesn’t that make rights “guaranteed” by a state Constitution really flimsy? They can’t be taken away within the state, but the feds can still wipe them out without any changes to the state or federal constitution.

Sort of, and this is by design. If it were not the case, then federal laws would be a bit pointless, as states could just ignore them whenever they wanted by amending their own constitutions. States often have relatively low bars for amending their constitutions (frequently just a simply majority vote,) unlike the U.S. Constitution which requires very broad consensus to amend (2/3 of each house of Congress, then ratification by 3/4 of all states.) And states are also much more likely than the federal government to have one party more-or-less in full control of the government, often with significant and long-enduring supermajorities.

The U.S. Constitution is designed to give the federal government ultimate authority on a relatively narrow range of matters spelled out in the Constitution and leave everything else up to the states. Granted, that narrow range has been significantly expanded over the years, both via Constitutional amendments and via extremely broad readings of provisions like the Commerce Clause and Taxing and Spending Clause in court decisions.

Of course, passing a law in Congress is also not an insignificant hurdle (requiring at least a majority in each of the House and Senate and signature of the President, but often a 60% supermajority in the Senate on contentious issues,) so there would still have to be a decent nationwide consensus in order to pass a federal law overturning some provision of a state Constitution.

And, in order for a federal law to override a state constitutional provision, it would have to be a matter on which the federal government actually has an enumerated power in the U.S. Constitution. Otherwise the federal law would be unenforceable and the state constitutional provision would stand, in keeping with the design of the federal government's powers being limited to specifically enumerated ones and other matters left to the states.

The question In the US, what is the role of and relationship between federal law and state law? goes into more detail on which powers belong to the state vs. federal governments (or neither) and how differences between them are dealt with.

reirab
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Given different jurisdictions it is inevitable and desirable that there be a hierarchy of laws. Otherwise the villages would forbid taxes and allow whatever discrimination suited the local prejudices.

A constitution creates a hierarchy within that hierarchy, with different rules for when and how the laws within each hierarchy can be changed. But from the outside they are all within the same grouping. All federal laws trump all state laws. All state laws trump all county laws and regulations and all county laws trump city laws.

A city could create its own constitution, but that wouldn’t mean that they wouldn’t be subject to the rules of the county or state or federal laws.

jmoreno
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  • "all county laws trump city laws." - No, I don't think it works that way. Both cities and counties are creatures of the state; a city is not a creature of a county. – D M Nov 25 '23 at 03:47