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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Nationalists and Federalists

Nationalists and Federalists

Thomas Allen

Since the ratification of the Constitution of 1788, nationalists and federalists have been struggling to control the government of the United States. With the possible exception of the Cleveland administration, the nationalists have controlled the US government since the election of Lincoln. (Federalists should not be confused with the early Federalist Party of Washington and Adams, which was primarily a nationalist party. As contradictory as it may sound, the Antifederalists of that era were the real federalists.) The following is a comparison of nationalists and federalists.

1– Nationalists support a living constitution where the US Supreme Court, the President, and Congress continuously change the interpretation of the Constitution to meet current needs, i.e., to satiate their lust for power. Among their favorite clauses are the Interstate Commerce Clause, the General Welfare Clause (which means that anything Congress deems to be for the general welfare), and the Necessary and Proper Clause. They give these and other clauses extremely elastic interpretations.

On the other hand, federalists support a strict, limited interpretation of the Constitution. They advocate interpreting the Constitution to mean what the proponents of the ratification of the Constitution explained it to mean and its intent. Records of their remarks are available in the debates of the ratification conventions, the Federalist Papers, and other writings that promoted the Constitution.

2– While nationalists advocate the consolidation of political power where the national government (a.k.a. the central government, the federal government, the US government, and the general government) has unlimited power, federalists advocate the dispersal of political power where the federal government has limited, enumerated power.

3– According to nationalists, the Supreme Court is the final arbitrator of the constitutionality of federal acts (and even most State acts). Thus, the national government is the sole arbitrator of its political power.

Federalists assert that “we the people” of each State, either through their legislatures or special conventions, are the ultimate and final arbitrators of the constitutionality of a federal act. If a State finds that a federal act is unconstitutional, it is void in that State, but it may continue to be applied in the other States.

4– Nationalists maintain that all federal acts are constitutional until the Supreme Court declares them unconstitutional, which it rarely does. (Being a branch of the national government, the Supreme Court cannot be an unbiased arbitrator. Most of the time, it decides in favor of the national government and against the States.) 

However, federalists maintain that only federal acts pursuant to the Constitution are constitutional. Any federal act that does not implement or apply one of the powers expressly delegated to the federal government in the Constitution has not been made pursuant to the Constitution. Therefore, it is unconstitutional, i.e., it is not a law and consequently void.

5– Nationalists loathe States’ rights. They consider States to be merely administrative districts of the national government.  

Quite the opposite, federalists are ardent proponents of States’ rights. States, i.e., “we the people” of each State, are the heart and soul of the Constitution and the federal government that they created. Without the States, the Constitution and federal government would not exist. Furthermore, each State acting independently is the final judge of the constitutionality of all federal acts. Consequently, if a State finds a federal act unconstitutional, it is duty-bound to nullify that act within its jurisdiction.

6– Nationalists place the power of the national government above all. Therefore, they view secession as treason and a sacrilege.

Federalists place the welfare of their community, people, and land above the federal government. Thus, they view secession as a means of preservation.

7– Nationalists are inclined toward foreign intervention and imperialism and are, therefore, bellicostic. They seek hegemony.

Contrastingly, federalists desire not to meddle in the internal affairs of other countries and seek peace and trade with all. Consequently, they prefer peace to war.

8– Nationalists favor government-business partnerships, mercantilism, protectionism, centralized banking, easy credit (inflation), and government indebtedness. Thus, they favor big business, big labor, and the concentration of economic power. Prosperity is created through mercantilism, i.e., corporate welfare, protectionism, and central banking. 

On the other hand, federalists favor free trade, free markets, free enterprise, decentralized banking, the separation of government and banking, the stable value of money, and minimum or no government debt. Thus, they favor the dispersal of economic power. Free markets create prosperity.

9– Nationals accept the welfare state, for it increases the national government’s control over the people and, consequently, its power.

Federalists prefer private and church charities to governmental welfare. However, if a government is to be involved in welfare, it should be the local government.

10– Nationalists rely on the national government to promote and preserve the virtues of the people. Making people righteous is a primary function of the national government. (Today, perversion is often considered righteousness.)

Federalists rely on the independence of citizens to promote and preserve the virtues of the people. Making people righteous is primarily the work of churches (true churches and not today’s woke churches).

11– Nationalists construe the Constitution as a teleological document (establishing a society based on abstract principles of natural rights, equality, democracy, etc.)

Federalists construe it as a nomocratic document (bringing government under the rule of law).

12– Nationalists lean toward inclusion and, therefore, amalgamation.

Yet, federalists lean toward diversity and, therefore, separation. Moreover, 

federalists are more tolerant than are nationalists.

While nationalists promote the concentration of political, economic, and social power, federalists promote their dispersal.

Regrettably, most State governmental officials have sold their souls to the nationalists. Since most State officials prefer lucre to liberty, the nationalists have bought them with federal grant money. (Nowhere does the Constitution delegate the federal government the authority to issue grants — much less to use federal funds for bribery.)

In summary, while nationalists are centralists, federalists are decentralists (see “Centralism Verses Decentralism” by Thomas Allen.) Furthermore, while nationalists are statists, federalists are libertists (“Statists Versus Libertists” by Thomas Allen). Consequently, nationalists prefer the constitution that Lincoln and the Republicans, as further developed by Presidents Wilson and Franklin Roosevelt and carried to fruition by the Warren Court, gave the United States, while the federalists prefer the Constitution of the Founding Fathers (see “What Is Your View of the US Constitution?” by Thomas Allen).

Federalism is achieved when more people know the names of their governors and State legislators than know the names of the President and their members of Congress.

Afterthought. Generally, nationalists divide into two major factions. One follows the attributes in the above list. The other follows the political and social attributes, although they disagree about the virtues that the national government should impose and the extent of the welfare state. However, the second faction agrees more with the federalists on economic matters. Further, some nationalists are less favorable to foreign interventionism than others.

Unfortunately, not all federalists are consistent. Many act like nationalists on economic matters. Some federalists are inclined toward the warfare state (foreign interventionism) and welfare states and support such endeavors, especially when their State receives money from the federal government for military bases and various social and welfare programs.

Copyright © 2025 by Thomas Coley Allen.

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