Analysis of When State Resistance Meets the Constitution

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.

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The Constitution of 1788 Was Only for White People

The Constitution of 1788 Was Only for White People

Thomas Allen

In “National Constitutionalism: An Originalist and Structuralist Analysis of Border Policy, Immigration and Naturalization Law, and the Fourteenth Amendment,” Preston Terry Damsky argues that the US Constitution that was ratified in 1788 was written for Whites and only for Whites. To support his argument, he uses quotations from the proponents of the Constitution. Some of these quotations follow.

Damsky writes, “Crucially, national constitutionalism rests in large part upon an originalist analysis of the meaning of the phrase ‘the People.’ The theory posits that although the People were an identifiable entity capable of political action prior to the ratification of the Constitution, the ratification process itself — and the political advocacy which propelled ratification forward — produced the controlling definition of the People for the purposes of constitutional interpretation.” Then, he proceeds to quote proponents of ratification of the Constitution.

In The Federalist No. 2, John Jay writes that the Americans are “a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.” Also, in The Federalist No. 2, Jay writes, “To all general purposes we have uniformly been one people . . . As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.”

In The Federalist No. 14, James Madison writes that “the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies.” Additionally, he urges Americans to “[h]earken not to the unnatural voice which tells you that [Americans], knit together as they are by so many cords of affection, can no longer live together as members of the same family; . . . [and] can no longer be fellow citizens of one great, respectable, and flourishing empire.”

The authors of The Federalist spoke with admiration about the people possessing an exclusive ancestral identity that should be jealously guarded. Thus, Americans were one race, the White race. (Blacks and Indians were not true Americans in the sense that the founders used the word.) Moreover, they believed as Alexander Hamilton wrote, “[H]uman nature . . . that its affections are commonly weak in proportion to the distance or diffusiveness of the object;” (The Federalist No. 17.), and thus, “a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large.” (The Federalist No. 2.)

Another supporter of the Constitution, John Dickinson, remarked, “[T]he people were so drawn together by religion, blood, language, manners and customs, undisturbed by former feuds or prejudices.”

Damsky writes, “In the debate over the slave trade during the constitutional convention of 1787, Roger Sherman opposed the introduction of African slaves into the United States on the grounds that Black slaves ‘prevent the emigration of whites, who really enrich and strengthen a country.’”

In the 1821 congressional debate on the Missouri compromise, Charles Pinckney, who wrote the Privileges and Immunities clause of the US Constitution, stated that “at the time I drew that constitution, I perfectly knew that there did not then exist such a thing in the Union as a black or colored citizen, nor could I then have conceived it possible such a thing could ever have existed in it; nor . . . do I now believe one does exist in it. . . .” Then, he explained “that belonging to the White race was an enduring prerequisite for becoming an American citizen.”

Although he supported abolition, Thomas Jefferson “believed that Blacks could not be made citizens due to the risk of interracial conflict and miscegenation.” Further, he dreamed that the United States would “cover the whole Northern, if not the Southern continent with a people speaking the same language, governed in similar forms, & by similar laws.” Additionally, he could not “contemplate, with satisfaction, either blot or mixture on that surface.”

Thus, the authors of The Federalist and other supporters of the Constitution were clear that the Constitution was written for one people, i.e., one nationality, i.e., one race. That intent is expressed in the Preamble. When the drafters wrote in the Preamble “‘ourselves and our Posterity’ (with ‘ourselves’ plainly being synonymous with ‘the People’ and ‘our Posterity’ being the posterity of ‘the People’), they conceived of the Constitution applying only to their race, the White race. To them, preserving as a racial matter, a common ancestry and the blood of the People was of great importance. Consequently, the Constitution was drafted and ratified by and for Whites and only for Whites. (Also, see “For Whom Is the Constitution Written?” by Thomas Allen.)

The great importance that the founding fathers placed on race is shown in the Naturalization Act of 1790 and the immigration law of 1803. They placed great importance on Americans sharing a common ancestral heritage, i.e., a common race.  Furthermore, they desired that Americans continue to share that common heritage. 

The first naturalization act passed by Congress enshrined this goal. The Naturalization Act of 1790, which the first Congress passed, limited naturalization to “any alien, being a free white person, who . . . is a person of good character” upon their “taking the oath or affirmation prescribed by law, to support the constitution of the United States.” It was well understood by the members of the Constitutional Convention that a “uniform Rule of Naturalization” would be tied to race. “Thus, the 1790 Naturalization Act ‘discouraged the immigration of non-White people from other countries by creating legal barriers to their economic and political participation.’”

Similarly, the first permanent federal regulation of immigration, which passed in 1803, punished the importation of “any . . . person of colour . . . into any port or place of the United States, which port or place shall be situated in any state which by law has prohibited or shall prohibit the admission or importation of such . . . person of colour.”

Regardless of their support for slavery, most of the founding fathers “unambiguously conceived of the United States as a White country.” Thus, the views of the leaders of the founding generation can safely be assumed to reflect the views of their constituents. Consequently, the original meaning and original intent of “the People” and “posterity” refer to Whites and only to Whites.

Damsky shows that “The People” is synonymous with “nation.” A “nation” or “nationality” is a people who have a common genetic ancestry (of the same biological race [species]), culture, language, and history; who have common traditions and customs; and who are capable of forming or constituting an independent country or nation-state.

(Damsky seems to imply there was only one “We the People” when the Constitution of 1788 was ratified. If that is what he meant, he errs. Then, there were 13 “We the People.” Each State was a “We the People.” The Fourteenth Amendment, which brought Lincoln’s constitution into effect, consolidated the 37 “We the People” in 1869 into one “We the People.” More egregiously, it transferred the sovereignty of the 37 “We the People” to those who controlled the federal government, which was not and still is not “We the People” in the aggregate. For more on “We the People,” see “Meaning of 'We the People'” by Thomas Allen.)

The Fourteenth Amendment

Furthermore, Damsky reasons that the Fourteenth Amendment is unconstitutional because it is incongruent with fundamental principles of the Constitution that it amended. By changing the Constitution from being monoracial to being multiracial by making Negroes citizens, it fundamentally altered the Constitution. Moreover, it was ratified illegally and unlawfully (see “Addendum to ‘For Whom Is the Constitution Written?’” by Thomas Allen).

Because of the Fourteenth Amendment, the United States were changed from a White country for Whites only to a multiracial country. Moreover, it usurped the sovereignty of the people of each State and gave it to those who controlled the federal government.

(Although Damsky does not discuss it, another aspect of the Fourteenth Amendment that makes it incompatible with the Constitution is that it changed the fundamental principle of citizenship. Before the ratification of the Fourteenth Amendment, people were citizens of the United States by virtue of being citizens of a State. After the ratification of the Fourteenth Amendment, people were citizens of a State by virtue of being citizens of the United States.)

Furthermore, because it is contrary to the fundamental intent of the Constitution of 1788, the Fifteenth Amendment, which gave Black males the vote, is also unconstitutional. It supports the Fourteenth Amendment in converting the United States from a monoracial White country to a multiracial country.

Thus, these two amendments dismember the Constitution, and are, therefore, incompatible with its existing framework because they seek to achieve a conflicting purpose. Also, Article V authorizes the amendment of the Constitution; it does not authorize fundamentally changing it, as do the Fourteenth and Fifteenth Amendments. As noted above, they changed the United States from a White country to a multiracial country. The United States were founded as a race-based country “for the preservation and betterment of White Americans (the People).” This objective is clearly stated in the Preamble and revealed by the country’s history. Therefore, it is difficult to see how the Fourteenth and Fifteenth Amendments “do not amount to unconstitutional, revolutionary usurpations by the constituted government power.”

Copyright © 2025 by Thomas Coley Allen.

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A Nullification That Failed

A Nullification That Failed

Thomas Allen

From the mid-1950s to the mid-1960s, the Southern States failed in their attempt to nullify federal acts that forced desegregation and integration, following the recommendations of Madison, which the Tenth Amendment Center (TAC) endorses. Not only did the Southern States dislike these acts,  but most of them were unconstitutional. 

In Brown v. Board of Education (1954), the US Supreme Court based its desegregation ruling primarily on personal biases, sociology, and politics, with the US Constitution playing only an insignificant role. When Congress proposed the Fourteenth Amendment, it did not intend for it to apply to schools. Shortly after its ratification, Congress established a racially segregated school system for the District of Columbia.

According to TAC, Madison identified four appropriate methods that a State and “we the people” of that State could use to oppose and nullify an unconstitutional federal act or even a disliked federal act. A discussion of these four follows.

1. Popular protest by the people. “We the people” of a State may vigorously and vociferously protest against an unconstitutional or even disliked federal act. Southerners protested resolutely and vehemently against forced federal integration acts, but the federal government successfully suppressed their protest. Their protest did nothing more than bring more federal oppression and less liberty.

2. Refuse to cooperate with the federal government. Wholeheartedly, the Southern States not only refused to cooperate with the federal government, but they also interfered with its enforcement of federal integration acts. With great fervor, they opposed federal integration acts. Their disobedience and lack of cooperation did nothing except invigorate the federal government’s resolve to become more tyrannical and oppressive.

3. Formal protest by the governor. Few governors have ever protested unconstitutional acts of the federal government as did Governor Faubus of Arkansas and Governor Wallace of Alabama. All their protest did was cause the federal government to use military force against Arkansas and Alabama to quell their protest. Other governors protested, but to no avail. Their protest led to more subjection and despotism.

4. Legislative action. Legislative action includes resolutions formally protesting the federal government’s usurpation and unconstitutional acts. Legislatures may forbid agents of the State and its local governments from cooperating with the federal government in enforcing the federal act. It may even include interfering to prevent the federal government from enforcing an unconstitutional federal act. However, legislative action does not extend to preventing federal agents from enforcing unconstitutional federal acts with imprisonment or fines. State legislatures of the Southern States took actions to thwart the enforcement of federal integration acts, short of jailing federal agents. Again, the results were the same: more oppression, tyranny, and loss of liberty.

Madison believed that if adjoining States protested against a federal act and sought to nullify it with the aforementioned actions, their actions would cause the federal act to become void. Madison was wrong. The Southern States were unified in their protest of the federal government’s integration acts. Yet, their unity did nothing to stop the federal government’s tyranny.

The Southern States did not resort to jailing federal agents attempting to enforce school integration. However, this action would have also failed because the philosophy of "might makes right" dominated the country. (With the possible exceptions of the Cleveland, Harding, and Coolidge administrations, this philosophy has been the dominant governing principle of the federal government since 1861 — even superseding the Constitution.) Since the federal government used military force against Arkansas and Alabama in response to much milder forms of nullification, it would have used even greater force against a State that jailed its agents. (If a State had nullified these federal acts following Calhoun’s philosophy instead of Madison’s, these acts would not have applied in the nullifying States. Consequently, the federal government could not have lawfully used the military to enforce them because they did not exist in the nullifying States. However, since the federal government ceased following the Constitution in 1861, it would have used troops anyway.)

As a result of the Southern States’ failure to nullify the federal government’s integration acts, America’s education has deteriorated significantly. Worse, their defeat gave birth to racial quotas, political correctness, diversity-equity-inclusion, wokeism, and ultimately the death of the White race, Christianity, and Western Civilization. Such has been the goal of the Puritan Yankees since the mid-nineteenth century. Only the South stood in the way of this goal; that is why Lincoln and the Republicans had to destroy the South.

Madison may have wept over the utter defeat of the Southern States’ failure to nullify these unconstitutional federal acts. However, based on inferences from its writings, TAC has not.

However, the Southern States’ attempted nullification did lead to two of the three wars that the United States have won since World War II: Eisenhower’s war against Arkansas, Kennedy’s war against Alabama, and Reagan’s war against Grenada. Defeating these three world superpowers is the height of US military prowess in the post-World War II era.

Since Lincoln’s War, States have been highly successful at nullifying federal acts against vice, e.g., prohibition, which the Constitution authorized the federal government to prohibit the manufacturing, sale, and transportation of intoxicating liquors, and marijuana, which the federal government has no constitutional authority to outlaw or regulate. However, the nullification of most unconstitutional federal acts has been highly unsuccessful. The only nullifying acts that States are allowed are unenforceable protests and resolutions, and not participating with the federal government in enforcing federal laws (even this one seems to be fading under Trump).

Copyright © 2025 by Thomas Coley Allen.

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Nullification and Fugitive Slave Laws

Nullification and Fugitive Slave Laws

Thomas Allen

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. (Article IV, Section 2, Clause 3 of the US Constitution)

When the States became members of the United States, they agreed to return fugitive slaves. As time passed and the Puritan Yankee abolitionists became highly influential in New England, New York, and the upper Midwest, the Northern States began refusing to aid in the return of runaway slaves. In other words, they began nullifying fugitive slave laws.

After the enactment of the Fugitive Slave Act of 1850, several Northern States effectively nullified it. (Presumably, Illinois and Indiana had no problem with the fugitive slave laws because they prohibited Blacks from entering them.)

Not unexpectedly, South Carolina objected to the nullifications. One reason that South Carolina gave for seceding was that various Northern States had nullified the fugitive slave laws. The reason that South Carolina listed slavery as a reason for its secession was that it was a prime example of the North’s hostility toward it and the North’s refusal to live by the Constitution.

Ironically, when South Carolina seceded, the Northern States no longer had a constitutional obligation to return runaway slaves to South Carolina. Thus, South Carolina’s secession effectively ended the need for the Northern States’ nullification, as far as South Carolina was concerned, because it was now a foreign country.

For South Carolina to secede to preserve slavery was absurd. Despite Northern States nullifying fugitive slave laws, slavery was better protected in the Union than outside it. Regardless of abolitionist rant, Republicans stressed that they had no intentions of abolishing slavery (see “Slavery Not the Reason” by Thomas Allen).

If South Carolina wanted to keep slavery intact, it would not accomplish that goal with secession. When it seceded, the United States ceased having any obligation to return runaway slaves to it.

Nevertheless, New England’s Puritanism, lust for plunder, and hatred of Southerners prevented them from letting South Carolina and the other Southern States leave the union in peace. The Yankee Puritans had seen the righteous, holy light, and they were determined to ram their vision of a sinless world down the throats of the Southern States despite the desiderata of the South. Puritans must free the world of sin so that Jesus can return — postmillennialism. (While the underlying principle of  postmillennialism is that the Holy Spirit becomes stronger, the underlying principle of today’s popular premillennialism is that the Holy Spirit becomes weaker.) Moreover, they would make the South pay for their liberation from sin by stealing as much wealth from the South as possible. (To the abolitionist Puritans, the greatest sin of all was slavery, despite the Bible not condemning slavery, which is why they abandoned the Bible.)

Jefferson, Madison, Calhoun, and most other proponents of nullification taught using it to void unconstitutional federal acts. Although Madison approved of nullifying constitutional federal acts that a State disliked, most of the others did not teach using it to void constitutional acts of the federal government that a State disliked.

According to Article IV, Section 2, Clause 3, which is quoted above, the Constitution authorized fugitive slave laws. Moreover, it obligated States to return runaway slaves. Consequently, Northern States nullified fugitive slave laws not because they were unconstitutional, but because they disagreed with them. (Since the Northern States controlled Congress, why did they not repeal the fugitive slave laws or rewrite them to address their concerns?)

Nevertheless, if a State disagrees with a federal law that is constitutional, it has the right not to participate in its enforcement. However, it has no right to actively intervene or interfere with its enforcement, as some Northern States did when they nullified fugitive slave laws. If the law was unconstitutional, which the fugitive slave laws were not, a State has the right to interfere with its enforcement.

If the Puritan Yankee abolitionists found slavery so reprehensible that they would destroy the country and its constitution and cause the loss of hundreds of thousands of lives in the process, they could have bought the slaves and set them free much more cheaply and without destroying the country and its constitution. These abolitionists cared only about Black slaves in the abstract. They did not care for them personally as did their owners.

Reconstruction showed how little Northerners cared about Blacks. They threw the slaves into the free-labor market. Most slaves had few skills beyond farm labor, and most had little training in taking care of themselves. Their masters had provided their housing, food, clothing, tools, medical care, etc., and took care of them in old age and when they were unable to work. After emancipation, they immediately had to learn to do all these things for themselves. Many failed, and many died.

Also, the North could have provided freed slaves with farmland in the territories. Yet, it did not because the territories were reserved for Whites.

Unfortunately, too many Blacks still have not escaped the slave mentality. Through various federal and State welfare and civil rights programs, they depend on governments to take care of them, as they had depended on the master — they have enslaved themselves to governments. Worse, they have enslaved taxpayers to support them.

During the Jim Crow Era, Blacks were making great strides in learning how to care for themselves and to free themselves from a slave mentality. Discrimination and segregation in the North and the South forced them to become independent and rely on themselves. Then came the Civil Rights Era. Consequently, this progress was retarded and thwarted.

Appendix. The Tenth Amendment Center

The Tenth Amendment Center (TAC) is a strong supporter of nullification. However, it goes beyond the teachings of Jefferson and Calhoun. While they wrote that a State has the right to nullify federal acts that it finds unconstitutional, as far as I know, they never promoted the nullification of constitutional acts with which a State disagrees. (When the Northern States nullified fugitive slave laws, they nullified constitutional laws with which they disagreed.) 

However, TAC goes beyond nullifying unconstitutional federal acts. It not only endorses a State nullifying unconstitutional federal acts but also endorses a State nullifying constitutional federal acts that it dislikes — except for Southern States nullifying civil rights acts of the federal government, including those that are unconstitutional, such as school desegregation and integration. (I have not found TAC expressly opposing or condemning the Southern States and communities attempting to nullify federal acts outlawing segregation and forcing integration. However, it does support Communist agents and Communist-front organizations nullifying State and local segregation laws and practices. Consequently, I infer that it opposes States and communities attempting to nullify these federal acts.) Thus, TAC supports Northern States' nullifying fugitive slave laws and opposes South Carolina's objection.

TAC seems to have a low opinion of Calhoun, despite him probably being the most brilliant and original political philosopher that the Western Hemisphere has ever produced, because he supported giving nullification real teeth. Calhoun argued that a State could prevent the enforcement of an unconstitutional federal law within its borders by vetoing it and thus making it unenforceable, as did Vermont’s nullification of the fugitive slave laws, which authorized arresting and penalizing federal officials attempting to enforce the fugitive slave laws. TAC objects to giving nullification teeth — at least in practice. Consequently, TAC rejects a State enforcing its nullification by jailing federal agents who attempt to enforce the nullified act in that State. In its opinion and Madison’s, such nullification allows one State to impose its will on the other States by preventing the enforcement of a nullified act within the nullifying State but not in the other States. Yet, TAC only weakly, if at all, objects to other States imposing their will on the nullifying State. In short, while Calhoun advocates nullification-heavy, TAC and Madison advocate nullification-light.

Copyright © 2025 by Thomas Coley Allen.

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Four Poisonous Clauses

Four Poisonous Clauses

Thomas Allen

Since the end of the American Revolution, two political factions or philosophies have fought each other for supremacy: the centralists and the decentralists. For the most part, the centralists have prevailed.

With the adoption of the Constitution, the centralists gained dominance. Lead by James Madison, James Wilson, Alexander Hamilton, and Gouverneur Morris, the centralists maneuvered the people of the States (the bodies politic) as represented in State conventions to ratify the Constitution. The goal of the Federalists, the centralists of that time, was to consolidate all power into the federal government, called the general government in the Constitution, and to reduce the States and the people thereof to insignificance.

(Those who favored adoption of the Constitution were called Federalists, and those who opposed, Antifederalists. Ironically, the Antifederalists, who were decentralists, were true federalists, and the Federalists opposed true federalism.

Later, the Federalists became the Whigs, such as Daniel Webster and Henry Clay. Following the Whigs were Abraham Lincoln and the Republicans. After them came the Progressives, such as Teddy Roosevelt and Woodrow Wilson. Following the Progressives were the liberal Democrats beginning with Franklin Roosevelt and followed by all Presidents since including Republican Presidents.)

Fortunately, for people who value and love liberty, the Antifederalists got the Bill of Rights added to the Constitution. The first nine amendments prevented (in theory) the federal government from encroaching on the unalienable rights of the people. The tenth amendment limited (in theory) the federal government to those powers that the States delegated it by reserving all powers not delegated to it to the States or the people thereof (bodies politic).

(Some argue that the second through the ninth amendments apply to the States as well as to the federal government. However, federal courts did not apply them to the States until the 1920s when federal courts began to apply them to the States with the incorporation doctrine via the fourteenth amendment. Since then, federal courts have applied the second through the ninth amendments to the States with much more vigor than they have applied them to the federal government. Although the first amendment is worded clearly and strictly to apply to Congress, federal courts have applied it to the States. Thus, federal courts zealously apply the first through the ninth amendments to the States. However, federal courts are reluctant to apply the first through the tenth amendments to the federal government — especially the tenth amendment. Since all State constitutions contain a bill of rights, the only reason for federal courts to apply the first nine amendments to the States is for the federal government to gain more control over the States and the people thereof.)

Despite the Antifederalists’ attempts to restrain the federal government, the Constitution contains four clauses that have achieved the Federalist goal of concentrating all power in the federal government and reducing the States and the people thereof to insignificance. These four clauses are the General Welfare Clause, the Interstate Commerce Clause, the Necessary and Proper Clause, and the Supremacy Clause. (Antifederalists objected to these clauses but they failed to eliminate or modify them to protect the States and the people thereof from a metastatic cancerous federal government.)

General Welfare Clause

Article I, Section 8, Paragraph 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

“General Welfare” is also mentioned in the Preamble to the Constitution. However, preambles do not and are not intended to grant any authority or power. Preambles serve to state the purpose of a document in broad strokes. Consequently, the Preamble of the Constitution cannot be used as a grant of power to the federal government.

Expanding the General Welfare Clause beyond its intent, the federal government has established the welfare state and everything else that it claims benefits the welfare of the people. This clause has been used to extend the powers of the federal government far beyond those explicitly listed in the Constitution.

Contrary to popular beliefs and court rulings, the General Welfare Clause was intended to restrict the powers of the federal government — not to expand them. This Clause was never intended to give the federal government boundless, unspecified powers. According to Madison, the purpose of the General Welfare Clause was to restrain Congress in the exercise of the powers delegated to it — primarily the power to regulate commerce with foreign countries and taxation. According to Hamilton, the General Welfare Clause did not grant the federal government any powers beyond those specifically listed.

Thus, any law enacted was to benefit all the States and the people thereof. Consequently, no law was to benefit one State, region, or group of people more than another. For example, protective tariffs and import quotas benefit the protected industry at the expense of others. Likewise, subsidies to agriculture benefit one segment at the expense of others. Other examples are guarantying loans; making loans; forgiving student loans; unemployment insurance; preventing people injured by vaccines from suing vaccine manufacturers; replacing the gold-coin standard with a fiat-money standard; bailing out banks; constructing roads, waterways, and airports; giving grants to States, universities, and private organizations and businesses; pursuing foreign interventionism; and favoring some States, regions, or groups over others. All these benefit one easily identifiable segment at the expense of others. Even welfare-state programs violate the General Welfare Clause because they forcibly take from producers and give to nonproducers, and, by that, they benefit some at the expense of others.

According to Roger Sherman, who got the General Welfare Clause inserted in the Constitution, its purpose was to clarify that taxes could only be collected to carry out the specifically delegated powers in Article 1, Section 8. Thus, the intent of this Clause was to limit the power to raise money by taxes, duties, and imposts. According to Madison, the intent of this Clause was also to limit spending money to carrying out the powers delegated to Congress.

The General Welfare Clause requires that federal laws benefit all the States and the people thereof — not to expand the power of the federal government. Its intent was to preserve State governments and not to govern individuals. Its purpose was to keep the federal government within narrow limits.

  If the General Welfare Clause was as broad as the expansionist claim, the enumeration of powers that follows it would not be needed. Moreover, if citing the General Welfare Clause can justify any purpose, then the entire Constitution is reduced to this one phrase; the remainder of the Constitution becomes merely a redundancy.

As can be seen from the above discussion, the General Welfare Clause has come to mean the opposite of its original intent. Before the twentieth century, federal courts interpreted the General Welfare Clause narrowly. Beginning in the 1930s, federal courts began giving it a broad, nonrestrictive interpretation. Now, the General Welfare Clause justifies the federal government taxing and spending on whatever it desires. Moreover, this Clause can be and has been used to force States to comply with whatever national standard of which the federal government can dream. Thus, the General Welfare Clause has been used to further reduce the States to insignificance and to further limit the liberties of the people.

Commerce Clause

Article I. Section 8. Paragraph 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

One of the most misconstrued and misapplied clauses of the Constitution is the Commerce Clause. This Clause has been expanded to cover not only intrastate commerce but also personal activities that do not involve trade or exchanges for value. With this Clause, the federal government has usurped the power to regulate every conceivable activity in the country.

Part of the problem in understanding the intent of the Commerce Clause is that the terms “regulate” and “commerce” have changed meaning.

“Regulate” as used in the Constitution means to “make regular,” i.e., to remove conditions that have a negative impact. Now, most people use “regulate” in the sense of control, restrain, or subdue, i.e., to impose conditions that have a negative impact.

When the Constitution was written, “commerce” was understood to mean “trade” or “exchange” of goods. As such, it did not cover manufacturing, agriculture, mining, and other means of producing goods for trade or exchange. Moreover, it did not cover consuming, discarding, or doing anything else with goods besides exchanging them. (The States retained the authority to regulated these production and consumption activities.) Thus, the Commerce Clause covers the exchange of goods, but it does not cover the production or consumption of goods. Now, the federal government uses this Clause to regulate every conceivable economic or gainful employment.

The original purpose of the Commerce Clause was to prevent the States from restricting trade across state lines and to authorize the federal government to restrict international trade for the benefit of domestic businesses. Domestically, the intent of the Commerce Clause was to create a free trade zone between the States and, by that, encourage commerce between States. As for foreign trade, the Clause enabled the federal government to enact trade barriers against countries that restricted shipping and imports from the United States. Thus, the intent of the Commerce Clause was to promote trade by preventing the States from restraining interstate commerce and by authorizing the federal government to retaliate against countries that restricted trade with the United States.

However, federal courts, especially in the twentieth century, have corrupted the Commerce Clause to justify the federal government enacting all sorts of laws that restrain commerce. Examples are minimum-wage, price controls, limitations on the production of crops, preventions of farmers raising crops for personal use, criminalization of growing cannabis for personal use, endangered species laws, and environmental laws. It has also been used to create most federal regulatory agencies, such as the FTC, SEC, EPA, and FDA. Constitutionally, these activities come under the jurisdiction of the States.

Necessary and Proper Clause

Article I, Section 8, Paragraph 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

With a long history of misinterpretation, the Necessary and Proper Clause has become one of the most transformed parts of the Constitution. Federal courts have used this Clause to justify nearly everything that the federal government wants to do — especially in conjunction with the General Welfare Clause. Giving this Clause a broad interpretation, federal courts have given Congress extensive power to enact any law that it fines convenient or useful. With the blessings of the federal courts, Congress has used this Clause to enact any law that it claims is necessary and proper.

The Necessary and Proper Clause was never intended to create any new powers or any implied or inherent powers. (If Congress has implied powers, no one would know where Congress’ powers stopped, and constitutional restrictions on Congress’ power become meaningless.) Its intent was to allow incidental acts that were necessary for implementing the powers delegated to Congress.

Nevertheless, federal courts have interpreted the Necessary and Proper Clause to vest complete and unlimited legislative power in the federal government. Using this Clause, the federal government has seized private property in the interest of historical preservation, has restricted the medical use of alcohol, has detained indefinitely lawbreakers, and has even established centralized banking.

Although the Necessary and Proper Clause was not intended to destroy the States, it has been used to reduce the significance and importance of the State by expanding the power of the federal government far beyond its constitutional bounds.

Supremacy Clause

Article VI, Paragraph 1: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which they shall make, 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.

With the Supremacy Clause, the federal government has reduced the States and the people thereof to insignificance. Using this Clause, especially in conjunction with the Necessary and Proper Clause, the federal government has nullified the tenth amendment.

Originally, the purpose of the Supremacy Clause was to ensure that unconstitutional laws were not supreme or binding. Only federal laws implementing the powers specifically delegated to Congress were constitutional; all other laws that Congress enacted were unconstitutional (today, the vast majority of the US statutes are 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 incidences 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. Using this Clause, the federal government has preempted or limited States regulating healthcare, medicine, banking, securities, transportation, labor, employment, meat inspection, and a host of other activities that are constitutionally reserved for the States. Thus, Congress, the President, and the federal courts have used this clause to impose their predilections on the States and people thereof.

Unlike today, the Supremacy Clause originally acknowledged that the Constitution was a compact among the States. It acknowledged that the federal government had only the few powers that the States delegated to it. All other powers, the States retained. Now, the federal government uses this Clause to subordinate the States and the people thereof to its whims.

Using the Supremacy Clause to justify the doctrine of judicial review, federal courts have declared a monopoly on deciding which laws and acts are constitutional and which are not. However, this Clause does not give the federal courts such a monopoly. It merely requires federal courts to uphold the supreme law of the land. Consequently, the States individually also have the right to rule on the constitutionality of a law — and even more so because they created the federal court system.

(Oddly, the US Supreme Court has ruled that although when a statute of Congress does not preempt a State’s law, regulations of regulatory agencies can preempt State laws. Apparently, regulations of federal regulatory agencies trump both Congressional laws and the Constitution.) 

Conclusion

With these four clauses, the centralists have expanded the federal government beyond the wildest dreams of the Federalists. Using these four clauses, federal courts, Presidents, and Congresses have greatly concentrated power in the federal government. Along with the fourteenth, sixteenth, and seventeenth amendments, these four clauses have reduced the States and the people thereof (bodies politic) to insignificance. Now, the States have only those powers that the federal government condescends to give them. Likewise, the people have only those freedoms that the federal government condescends to allow them. Thus, liberty dies! The spirit of 1776 is no more. The spirit of 1984 has risen.

References

Abbott, Greg. Restoring the Rule of Law with the States Leading the Way.

Benner, David. Compact of the Republic: The League of States and the Constitution. Minneapolis, Minnesota: Live & Liberty Publishing Group, 2015.

Rothbard, Murray N. Conceived in Liberty: The New Republic, 1784–1791. Volume V. Editor Patrick Newman. Auburn, Alabama: Mises Institute, 2019.

Copyright © 2021 by Thomas Coley Allen.

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