The Doctrine of Judicial Review
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tution, of course, but over State laws. Thus, if a Federal law conflicts with
a State law, the latter is void and may not be enforced. Federal laws are
not automatically treated as the supreme law, however, for the Supremacy Clause stipulates that they ‘‘shall be made in pursuance’’ of the Constitution. This means that they must conform to the Constitution. It is the
duty of the courts to decide whether any law, State or Federal, meets this
test. If it does, the courts are obliged to apply it to the case at hand, even
if the judges think it unwise or are personally opposed to the policy it
establishes. In this sense, the American Constitution establishes a qualified legislative supremacy in Congress, the only higher authority being
the Constitution itself.
Third, the Supremacy Clause declares that treaties made ‘‘under the
authority of the United States,’’ shall also be supreme law of the land.
Why, it may be asked, did the Framers not specify that treaties, like laws,
must also be made ‘‘in pursuance of the Constitution’’? Does this mean
that treaties may ignore the Constitution? The wording of the clause
seems uncertain on this point, and has aroused considerable debate over
the years. The Framers were not careless draftsmen, however, and they
chose their words carefully. Under the Articles of Confederation, the
United States had entered into agreements with foreign powers, the
Treaty of Peace of 1783 being a prime example. Had the Framers employed language that required all treaties to be made in pursuance of
the Constitution, the legal status of such treaties would have been in
doubt because the Constitution did not exist when they were made. By
stating that all treaties would be regarded as the supreme law of the land
if they were made ‘‘under the authority of the United States,’’ however,
these earlier agreements were left intact. Although the Supreme Court
has never overturned a treaty on the ground that it violated the Constitution, the principle seems well established that treaties, like the laws of
Congress, must be constitutionally acceptable. ‘‘There is nothing in this
language,’’ declared the Court in Reid v. Covert (1957), ‘‘which intimates
that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.’’
The power of the Supreme Court to strike down an act of Congress on