Analysis of When State Resistance Meets the Constitution
Thomas Allen
In “When State Resistance Meets the Constitution,” January 30, 2026, Benjamin Osborn (https://chroniclesmagazine.org/web/when-state-resistance-meets-the-constitution/) discusses the protest against federal immigration enforcement in Minnesota. Correctly, he argues that the protestors are acting unlawfully when they attempt to prevent the federal government from enforcing federal immigration laws. Additionally, neither the governor nor city officials have any legal authority to actively interfere with federal enforcement. All that they can do legally is to refuse to aid in that enforcement. However, his argument rests on Lincoln’s unhistorical concept of the Union, and a nationalist, rather than a federalist, perspective of the Union, where the federal government is all-powerful, and the States are impotent. This analysis discusses Osborn’s disdain for States’ rights and federalism and his admiration of federal tyranny.
Osborn rejects the notion that a State has the right, duty, and authority to nullify any federal act that it, i.e., “we the people” through their legislature or special convention, finds unconstitutional. (See “Returning Republican Governments to the States" by Thomas Allen.) If a State nullifies a federal act that it finds unconstitutional, that act is void in that State, i.e., does not exist in that State. Nullification is a reserved power under the Tenth Amendment. (See “Nullification and Interposition” by Thomas Allen.) Moreover, the way that the country was founded and the Constitution was ratified not only implies that nullification is lawful, but it also makes it a fundamental principle. Therefore, if any federal agent attempts to enforce a nullified act, he is violating the Constitution and his oath of office.
Before 1861, States could do what Vermont did to the federal fugitive slave law. Not only did Vermont nullify it, but its nullification also authorized the use of force to prevent the enforcement of the fugitive slave law. (See “Nullification and Fugitive Slave Laws” by Thomas Allen.) If he were consistent, Osborne would oppose what Vermont did.
Unfortunately, Lincoln’s War ended that option. Now, we have what is occurring in Minnesota. (See “Blue Cities’ Response to Deporting Illegal Immigrants” by Thomas Allen.)
Osborn claims, “The Founders designed a system in which states retain meaningful sovereignty, but that does not include veto over federal execution.” For a State to have meaningful sovereignty, it must be sovereign. As a sovereign, it is and has to be the final judge of compliance with any contract that it voluntarily enters into, such as the US Constitution. Thus, it is the final judge of the constitutionality of all acts of the federal government. In other words, before a State can be sovereign, it has to have the right, duty, and power to nullify any federal act that it finds unconstitutional and the right and power to enforce the nullification, including jailing any federal agent trying to enforce the nullified law, as Vermont did when it nullified the fugitive slave law (see “Returning Republican Governments to the States" and by Thomas Allen).
Osborn cites the Supremacy Clause and argues that any law enacted by Congress and not vetoed by the US Supreme Court is constitutional. He is mistaken. The Supremacy Clause applies only to laws enacted pursuant to the Constitution. Only those laws are constitutional; all other federal laws are unconstitutional. Should the creators, the States, or the creature, the federal government, decide if a law is made pursuant to the Constitution? Osborne claims that the creature decides. (He is a true Lincolnian.)
Originally, the purpose of the Supremacy Clause was to ensure that unconstitutional laws were not supreme or binding. Only federal laws implementing the specifically delegated powers of Congress were constitutional; all other laws enacted by Congress were unconstitutional.
Now, the federal government uses the Supremacy Clause to ensure that federal laws and treaties have precedence over State laws and State constitutions except in the few instances where the federal courts have declared the federal law unconstitutional. No longer do federal laws have to be made pursuant to the Constitution, i.e., be constitutional, to have precedence over State laws. (See “Four Poisonous Clauses” by Thomas Allen.) Osborn supports this usurpation of the federal government.
If a State disagrees with a federal act, it “may litigate, protest, and seek political change.” Osborne’s solution of litigation means that he supports letting the federal government decide the limits of its power; that is what litigation means, as it will occur in federal courts.
(To use an analogy, if Osborn [a State] and I [the federal government] have a dispute, he should not object to my wife [the federal courts] deciding the dispute. One branch of my marriage would be as impartial in deciding a dispute involving another branch of my marriage as one part of the federal government is impartial in deciding a dispute with another part.)
Osborn cites James Madison’s explanation of interposition. He is correct: Governors lack the authority to nullify. However, proponents of nullification claim that “we the people” of each State, through their State legislatures, do have the authority to nullify federal laws that they find unconstitutional. (Being a nationalist at heart and desiring a strong federal government, Madison, unlike Jefferson, is not the best supporter of States’ rights and nullification. His approach to nullification lacks teeth and results in failure, as the Southern States proved in the 1950s and 1960s. [See “A Nullification That Failed” by Thomas Allen.])
Osborn writes, “The American system channels disagreement into courts, elections, and legislation.” Of course, he means federal courts and federal legislation. State courts and legislatures have only those powers that the federal government allows them. They certainly have no power or authority to interfere with the federal government, no matter how tyrannical, despotic, and unconstitutional it becomes.
Osborne is a strong proponent of making the States, which created the federal government, slaves of their creator. He implies that States have only those rights and privileges that the federal government concedes to give them. He is a strong proponent of federal supremacy and States’ subservience, which is tyranny and contrary to the very foundation of the Constitution — at least the Constitution of 1788, although not of the Lincoln Constitution, which is our current constitution. (For the difference between the two, see “What Is Your View of the US Constitution?”) Based on this article, Osborn prefers America after Lincoln’s War and the Fourteenth Amendment to America before them. (See “Before and After” by Thomas Allen.)
A primary reason that the country is in the turmoil that it is today is that no State has nullified any of the multitude (probably more than 85 percent) of the unconstitutional federal acts. Today, political power is centralized and concentrated in the federal government. States’ rightists’ political solution to America’s crisis is the decentralization and dispersal of political power, of which nullification is an important part. (The major cause of America’s problems is moral decay.)
Personally, I believe the federal government has the constitutional authority to enforce naturalization and immigration laws by arresting people who are in the country illegally and deporting them, although some of the tactics being used may not be legal or constitutional. However, the constitutionality is something that "we the people" of each State need to decide for themselves.
Copyright © 2026 by Thomas Coley Allen.
